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He noted that MPS had withdrawn their representation. The second point was the policy point. Mr Anderson stated there were exceptional circumstances, as per his written submissions. He stated the applicant did not accept things were back to normal since July – it is not the same as August 2019. He said footfall is still low and, whilst the Premises are busy in the day numbers are low in the evening, noting low tourist numbers, low use of office space, low customer confidence and different customer behaviour. The Premises occupancy is down and the applicant does not think this is likely to recover until late Summer to Winter of 2022.

He stated the Council were fully aware of Covid when making the policy but no reference is made to it. He stated that Covid was an unprecedented occurrence but it is not an exception to policy because it impacts everybody whereas an exception to policy has to be almost unique to that application. Brown refuted Mr Anderson’s suggestion that later hours could not definitionally be harmful by reference to the law recognising that cumulative impact policies could be appropriate when there is evidence to support them.

Vary the hours within Core Hours under Policy HRS1, and/or 2. Vary the licence to reduce the overall capacity of the premises. B. Applications for other premises types within the West End Cumulative Impact Zones will be subject to other policies within this statement and must demonstrate that they will not add to cumulative impact. C. For the purposes of this policy the premises types referred to in Clause A are defined within the relevant premises use policies within this statement. Under Policy PB1(B) it is the Licensing Authority’s policy to refuse applications within the West End Cumulative Impact Zone other than: 1. Applications to vary the existing licence hours within the council’s Core Hours Policy HRS1.

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He submitted there was overwhelming evidence there would be no nuisance if the application was granted. He pointed to no nuisance arising from TENs that had been granted, no objection from EHO, that the applicant had been trading until 01:00 hours on Thursday to Saturday and had no complaint. Mr Anderson submitted the representations made and objections received were evidence free and were instead opinion pieces that rely on policy.

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Mr Brown submitted that Covid-19 is not a reason for an exception. Brown submitted it was a crucial point that the policy had been renewed since the previous application. He further noted that the cumulative impact assessment indicated further restrictions in the West End which were not implemented because of Covid.

Richard Brown, speaking on behalf of Covent Garden Community Association, stated the point made by Mr Anderson was semantic. He agreed the test is balance of probabilities but, in his submission, the Sub-Committee needs to be convinced it is an exception to policy. In relation to harm to the licensing objectives and Hope & Glory, Mr Brown noted s. 4 LA 2003 said the licensing authority are under a positive duty to promote the licensing objectives. Anderson began by accepting this is not a re-hearing but some of the arguments that will be put forwards are the same as previously. He also conceded that late hours to financially bolster a business is not on its own a good reason to grant the application.

He stated the applicant does not seek to rely on that although it is certainly relevant – the business is now trading, and trading well, but not as well as it used to in the evening. Anderson stated he would address two specific issues – the first was later trading. These are the same hours as previously applied for, however they have not been able to use this licence. He stated the applicant would not be seeking a second time limited licence had they been able to use it as the Committee intended. He explained that 2 days after it was granted, lockdown came in meaning the previous temporary licence was only used for a limited time. He stated this application was being made because the applicant had not been able to take advantage of the previous.

Brown noted the exception found in 2020 was an exception found in that time. He suggested that it may have had some bearing on that decision that the CGCA did not object – which was a deliberate and considered decision. The CGCA agreed at that time that footfall was low, that the Premises couldn’t make use of al fresco, and had sympathy for the applicant.

In relation to later hours, Mr Anderson stated the applicant does not accept the premise that just because people are outside later that will cause a nuisance. He submitted this cannot be right in either law or fact. If this were correct then there would be no later hours in the West End – it is a question of fact.

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He submitted this was supported by the fact that the CGCA had started receiving complaints about premises in the area, albeit not the Premises. Mr Brown further noted that there are resident representations to this application whilst there had not been previously. Brown noted it was common ground that an exception was needed – noting that there was no definition of what exceptional circumstances are but some examples are given of what is not exceptional, referencing premises being well-run and applications being time-limited are not exceptional.

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However, the CGCA have objected this time because in their view with their knowledge of the area the situation has changed. Brown clarified that footfall has increased since the premises have been able to open in May and July of 2021. He explained that the CGCA’s view is that footfall is going to continue to increase and the West End is likely to keep going towards the situation in 2019 when the CIA was researched and produced.

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