Agenda item

Report of the Planning & Development Director.

The Sub-Committee considered a report of the Planning and Development Director concerning the retention of a change of use of the premises from the lawful permitted use as Class E(b) (restaurant) to Sui Generis (drinking establishment) use.

 

The Town Clerk referred to those papers set out within the main agenda pack as well as the Officer presentation slides.

 

Officers presented the application and stated that planning permission was being sought for the change of use of the Portsoken Pavilion located in Aldgate Square from the Class E Cafe restaurant to a drinking establishment with a substantive food offer. There were no physical works to be carried out or under consideration and the use was already in place. As such, the permission was being sought retrospectively.

 

The Officers highlighted that the site was located to the north of Aldgate Square, within the existing pavilion building, which was constructed as part of the wider gyratory remodelling granted planning permission by the Planning and Transportation Committee at the beginning of 2015.

 

Members were informed that the western edge of the square was Aldgate School and to the east was St. Botolph without Aldgate Church. Representations had been received from both the church and 15 members of the public raising concerns including the loss of the previous use, anti-social behaviour, public safety and impacts upon the community. Officers had taken the comments received into account and in response to the representations received, restrictive conditions had been agreed with the applicant to limit the hours customers would be able to spill out into the wider area. Objectors were further notified following these agreements with the applicant. Three responses were received and were detailed in the Officer report. Further responses were received from two members of the public and one from the neighbouring church.

 

Members were shown a ground floor plan which included the bar and seating area and accessible toilet. Members were informed that the external seating area was provided through the grant of a pavement licence. Members were shown a basement level plan which included the kitchen, cellar and additional publicly accessible toilets. Members were informed that the applicant had agreed by way of condition that the toilets were part of the city's community toilets scheme and publicly accessible without charge or the need to purchase, during operating hours.

 

Members were shown a photograph of the pavilion from the northeast with the school behind it and the church to the left of the image, and an image from the southwest in which the square could be seen as being fully open to the public with pre-existing seating and bin provision.

 

Members were shown a photograph of the pavilion taken in January 2024, with the existing outside seating as consented through the associated licence. They were also shown a photograph of the entrance to the bar and the toilets, which was located in the west of the building.

 

The Sub-Committee were shown a photograph from within the square and the fountain area, which would continue to be unhindered by the seating area. They were shown a similar photograph taken from the west. Members were shown a further image showing the use as of May 2023 taken at about 5:30pm from the west of the square.

 

The Officer informed Members that a management plan had been submitted following the initial objections that were received and the applicant had advised that this was already being implemented throughout the square. The plan included the applicant and the operator of the bar regularly collecting customer glasses as well as general cleaning and the collection of bottles and cans brought into the square by other users of the public space. Staffing levels had been increased during busier times.

 

Members were shown a photograph provided to Officers by Reverend Laura Jorgenson, an objector to the application, showing activity within the square in late June 2023. The Officer stated that whilst it was recognised that the overall use of the square had increased with the introduction of the bar, footfall in the City had also increased over this time. The Officer added that to mitigate concerns, conditions were proposed that would limit spilling out from the premises other than to the areas specifically licenced for such purposes, namely the seating shown, before 5.30pm Monday to Friday during the school's term time.

 

The Sub-Committee were informed that following complaints about large crowds within the square, colleagues from the licencing team had inspected the site on 7 occasions in June and July 2023, when the use of the square was at its busiest, and they did not find anything of note with regards to antisocial behaviour or obstruction. They had advised that, following the provision of guidance to the premises management on how best to manage outside drinkers, no further complaints had been received by them.

 

Members were shown a map of nearby areas within an approximate 200m radius of the site and a further map, showing bars, pubs and also other premises licenced to sell alcohol within the same radius.

 

In summary, the Officer stated that the site was in a busy and lively area of the City and contributed to the vibrant and dynamic area. He stated there were many retail outlets in the immediate area, including five drinking establishments within 130 metres of the proposed site and 7 within 200 metres. He added that this would increase to 8 when The Ship pub was reinstated after redevelopment. As such the proposed use was not considered to be out of character with the location. The proposed change of use to a drinking establishment was considered acceptable and it was recommended that the Sub-Committee grant planning permission subject to the conditions proposed.

 

The Officer stated that in particular; Condition 1, that would prohibit outside drinking before 5:30pm Monday to Friday during term time, and then only within the area approved under the associated pavement licence; Condition 2 that this activity should cease and all tables and chairs be removed, should the licence be revoked at some point in the future; Condition 3 that the premises would only operate under the approved management plan that was subject to a first anniversary review by the Planning Officers and subsequent revisions as required as may be seen fit by the Corporation; and Condition 4 to have membership of the community toilet scheme within three months of planning permission being granted. Other conditions had been imposed with regards to noise and disturbance and environmental health requirements as set out in the Officer report. The Officer stated that on this basis, Officers recommended that planning permission be granted by Members of the Sub-Committee.

 

The Chairman explained that there was one registered objector to address the meeting and he invited the objector to speak. Reverend Laura Jorgensen stated that she was attending as Rector of St Botolph’s on behalf of her congregation, as a school governor on behalf of Aldgate School, as a parent of children at Aldgate School and on behalf of Wynn Lawrence, another parent.

Reverend Jorgensen stated that from the inception of the public realm project to create Aldgate Square, its first objective had been to create attractive, inviting and comfortable spaces that were destinations in their own right, and stated that account must be taken of the needs of the variety of users from the community, including children and parents, workers, residents and visitors using the spaces at different times of the day. Members were informed that the opening of Aldgate Square in 2018 was transformative. The square was enjoyed at different points of the day and evening by a broad cross-section of people, including Aldgate school, residents of Middlesex Street, Mansell Street Estate, office workers, construction workers and tourists. Reverend Jorgensen stated that as the largest public square in the City, it quickly became a place for the community to gather, for children to play in the fountains and had the only grass many children, including her own, ever played on freely during weekday evenings.

 

Reverend Jorgensen stated that since the opening of the Portsoken Pavilion as a bar, there had been a different feel to the square. She raised concerns about the diminution of Aldgate Square as a community space, a loss of amenity of public toilets, noise from loud music, antisocial behaviour and particular concerns about the interface between children and drinkers and stated that the square was no longer a family friendly space. She raised concern about drinkers being prioritised over providing space for families, elderly residents and tourists to enjoy.

 

Reverend Jorgensen raised concern about who would manage the sharp interface at the eastern and western points of the pavilion, where drinkers, children and others stood or passed by in close proximity and when the barriers narrowed the path by a considerable margin for buggies and wheelchairs.

Reverend Jorgensen suggested that there might be a different outcome to the discussion about change of use if it had been taken place before the lease was awarded to the current operator in 2022.

 

Reverend Jorgensen raised concern that the public toilets deemed necessary to the original scheme were now closed at weekends and every morning. She stated that many people including children and people whose faith meant they did not drink, were reluctant to use them. She added that in addition, children could now not play freely in the previously very popular play fountains when surrounded by adults drinking.

Concerns were raised about the costs to build the pavilion and the public realm project as a whole and just one business taking the majority of the enjoyment of the square in warm weather, with vertical drinking taking place and no space for others after 5:30pm. It was also stated that there were other bars with outdoor spaces in very close proximity to the square.

 

Reverend Jorgensen stated that the change of use did not take into account a variety of users. There were many people who lived and worked and passed through this vibrant and diverse area. She stated that by granting this change of use, Aldgate Square would never reach its potential as an open space for all.

 

The Chairman asked if Members of the Sub-Committee had any questions of the objectors.

 

A Member thanked the objector for providing up to date photographs. She asked if the objector considered that the bar was managing itself proactively. She also asked whether the objector considered the situation would improve or deteriorate if the premises remained as a pub. Reverend Jorgensen stated that all through the summer the square was full of people and children could not play freely. She stated that she had had several conversations with the bar owner and they had put in place measures which were appreciated, but they were not going to turn away people from their business in the summer. She stated that many of the issues related to the sheer numbers of people using the space.

 

In response to a Member’s question referring to the lack of complaints since the measures had been put in place, Reverend Jorgensen stated that people did not know how to make formal complaints and many people had spoken to her or complained on parents’ Whatsapp groups. She raised concern that she was not written to about the proposed change of use and only happened to see a poster after the consultation date had expired.

 

A Member stated he understood the concerns raised but expressed concern that the lack of formal complaints meant there were no formal numbers to consider. He stated that the City was evolving and as part of Destination City, changes were being made and working together was important. Reverend Jorgensen stated that she spoke to her ward councillor and other Members. She had not considered that she would be asked to provide numbers but she had observed that children no longer played in that square and she wanted people to enjoy the space as they used to. She stated that she was not saying that objectors wanted to exclude certain people, but they were asking not to include just one group.

 

A Member stated that he understood that a condition would be put on the licence such that the patrons of the drinking establishment would be excluded from the use of the park until 5:30pm and would only be allowed in a confined space so there would not be an interface between children and drinkers, unless the children were playing after 5:30pm. He asked to see a plan of the space. On the plan shown, Reverend Jorgensen highlighted the school entrance and stated that patrons did not currently stay in the small area. The Member stated that if the condition was applied, they would be obliged to. He asked if this addressed concerns. Reverend Jorgensen stated that many children wanted to play beyond 5.30pm, especially in warm weather and that people drinking came out into the space near the play fountains and did not just use the area where the tables and chairs were positioned.

 

The Chairman invited the applicant to speak but the applicant was not in attendance.

 

The Chairman suggested that the Sub-Committee now move to any questions that they might have of Officers at this stage.

 

The Chairman asked Officers to outline the previous licence conditions on the premises that closed in 2020, the licence conditions on the proposed premises and the situation regarding people drinking in public in the City.  An Officer stated that the planning and the licencing regimes were separate regimes. The licencing regime was specifically about promoting the four licencing objectives of public safety, public nuisance, protecting children from harm and crime and disorder. The licencing regime was set up to be permissive, so unless there was an objection to an application which would then be determined by a sub-committee, the licence application was granted. The licence for the previous premises was first granted in 2018. It operated as a coffee and cake shop with alcohol ancillary to that. They closed down in 2020 and that licence was then transferred in late 2022, almost as it was, so the conditions on the licence were the mandatory conditions, including having a designated premises supervisor available at the premises. There was one additional condition which related to CCTV, but because it did not go to a sub-committee, there were no additional conditions attached to the licence.

 

The Officer stated that in relation to drinking in the City, there were no prohibitions on drinking in the square mile. Some boroughs were dry boroughs and had public space protection orders preventing alcohol being consumed but the City had none, so there were no restrictions on buying alcohol, opening it and drinking it.

 

A Member commented that the report stated that conditions were proposed that would prevent spilling out from the premises other than to an area specifically licenced for such purposes before 5:30pm Monday to Friday. He asked Officers to clarify where this area was on the plan and asked how this condition would work in view of there being no way to stop people from drinking in the square mile. The Officer confirmed that the area was approximately the area where the tables and chairs were located. The Officer confirmed that people could visit the square and drink under the existing regime. The Officer added that it had been agreed with the applicant to prohibit drinking beyond the delineation approximately before 5:30pm Monday to Friday. The Officer stated she did not have an image with the red line marking the outline of the licensed premises but stated the structure of the building was under the premises licence and the pavement licence ran up until September 2024.

 

A Member commented that the original planning application was for a café/restaurant which would provide amenities including toilets for people in the area and enhance the use of the public space. The use would also be enhanced by the use of the area adjoining the pavilion with ancillary external seating. The Member stated that Aldgate Square was intended to be a community facility for mainly the school and the residents in Middlesex Street and Mansfield Street and it was clearly set out that it would be a café/restaurant and this was granted by the Committee. She added that there had been an obvious change of use and asked why enforcement action had not been taken against the change of use. The Officer stated that the sequence of events was regrettable and that the Planning Department became aware of the change of use at the end of 2022. An enforcement investigation was undertaken and that had resulted in the current planning application being submitted. Local Planning Authorities were obliged to give applicants the opportunity to apply retrospectively for planning permission. He added that if the decision was overturned, this could reopen enforcement action.

 

A Member asked for clarification on the definition of substantial food. The Officer stated that there was not a specific definition but a food offer would be required and this was not just a drinking establishment. The Officer stated that the previous cafe /restaurant did have alcohol consumption on the premises and the licence did allow for offsite sales of alcohol to take place. The current business was operating on the same licence.

 

Officers were asked to what extent they considered that the antisocial behaviour outlined by the objector was a consequence of people drinking at the establishment as opposed to people bringing drinks from elsewhere into the square or having arrived at the square inebriated from another venue. The Officer stated that several visits were undertaken in the Summer of 2023 at different times of the day and night, with many visits being at the busiest times. No anti-social behaviour was observed. Members were informed that if there was evidence that customers were undertaking anti-social behaviour, there were strong powers under the licencing regime to review the licence. Members were informed that there was a good management plan in place, there was active glass collection and monitoring and management of the spaces being used.

 

A Member asked what the pavilion would be used for if planning permission was not granted. An Officer stated that the lawful use of the premises was that granted by the committee in 2015, which was a café/restaurant. He added that if planning permission was refused, the use would revert to that lawful use, notwithstanding any opportunity for the applicant to appeal that decision.

 

A Member asked how the 5.30pm restriction would be enforced. An Officer stated that this would be secured by a planning condition. If the planning division received complaints that this was being undertaken before 5:30pm, investigation and possible enforcement action would be taken.

 

A Member asked why the premises would have 3 months to join the community toilet scheme as opposed to being required to join immediately. The Officer stated that the wording could be revised to require them to join immediately.

 

A Member asked for further details on the policies in relation to the protection of the open space and how that interacted with the proposed use. This Officer referred to the local plan and development plan as outlined in the Officer report. He stated the space was utilised for drinking and gathering and this had been well established.

 

A Member commented on the references to the licensing regime and stated that there should be clarity on the plans about the area licensed. He stated that the Sub-Committee should make a decision in its own right and not by reference to the licensing regime. He also stated that there appeared to be some off-licensing provision and that if there was just an on-licence, there was control over where people drank and took their drinks. He asked if it was possible to mark out the line where people could go and could not go. An Officer stated that this application had been considered within planning terms but with due regard to an existing licence and the pavement licence for the tables and chairs. He stated that the wording of the conditions recognised that there was a delineation and a containment of those tables and chairs, and they should be contained within that area.

 

In response to a Member’s query about the rationale for the time restriction for spilling out, the Officer stated that before 5:30pm Monday to Friday, there were sensitive neighbouring receptors in terms of amenity and users, including the school and it would not be appropriate for the bar to spill out beyond the agreed seating area into the public space. Beyond that, there was a transition to a nighttime economy. Officers considered 5:30pm to be the time that the amenity impact would no longer be to the same extent.

 

Members agreed to extend the meeting in line with Standing Order 40.

 

In response to a Member’s question about on-sales and off-sales, the Officer stated that the licence permitted on-sales and off-sales and there were no further conditions on the licence to limit where off-sales could be consumed. The Officer stated that if a review was undertaken, additional conditions could be applied to prevent people taking drinks away and drinking them in that locality, but these could only be applied through a subcommittee review hearing. Members were informed that the City of London was not a dry borough and did not have a public space protection order for any day other than marathon day and so there were currently no restrictions on people buying alcohol and drinking it in the park.

 

An Officer stated that a management plan was secured through the planning process. This went beyond the licencing regime and gave due regard through the planning system and the amenity and protection of the wider space. He stated that there was an imposition upon the applicant with their agreement and Officers understood that it had been successful since its implementation in the summer of 2023.

 

A Member raised concern that that conditions would be unenforceable, especially as people could buy and drink alcohol in the square. She added that many children would still be playing after 5.30pm.

 

A Member raised concern that this premises was essentially a pub which was operating close to the school entrance and asked if this would be considered by the Licensing Committee. An Officer stated that the matter under consideration was planning permission for the change of use of the building. He stated that conditions had been agreed in terms of hours of operation for the outside seating and activity and the management plan had been secured. He added that planning permission was not being sought for the wider square and the licencing regime was a separate regime. It had been discussed at the meeting so that Members were aware of the background of the matter and the restrictions and allowances that were in place. The Officer added that Members were being asked to grant planning permission subject to the conditions set out for the change of use of the pavilion itself.

 

Members were informed that Officers were content that the conditions had been applied, responded positively to the comments that had been received and concerns raised by the local and wider community. The Officer stated that the management plan would improve the situation in terms of the management and functionality of the square and the hours restriction would protect the amenities of local communities, residents and stakeholders, in particular the school. The Officer stated that the licencing regime was an entirely separate matter. Members were informed that the proposed change of use was considered to comply with the development plan as set out and subject to the conditions that had been set out in the report, the proposal should not have an undue impact on the amenity of those concerned.

 

Seeing no further questions of Officers, the Chairman asked that Members now move to debate the application.

 

The Chairman stated that the debate should focus on planning and not licensing matters but it was useful to have received information on the licensing regime in order to have a holistic picture. The Chairman commented that both planning and licensing conditions were enforceable. He stated that there had not been any police complaints or other complaints raised from a planning perspective. He also stated that if there were licensing concerns in the future, they could be addressed through the licensing regime.

 

A Member stated that the pavilion scheme was a £20 million scheme which removed the gyratory and brought the school and the church together in a community space. The square provided a space for the residents and a key part of the offering was a community café/restaurant, which was a social enterprise that would employ local people and give back to the community. The space was designed with much consultation to ensure the children from the school and the local area could play. The Member stated that play water fountains were included as part of the design and the grass was sloped so children could roll down the space. The Member stated that unfortunately the social enterprise failed during the pandemic. The Member also stated that when the unit was remarketed there were a number of people who put in for cafe use and that the operator and may not have understood planning requirements of a café/restaurant. The Member raised concern that people spilled out of the premises and that drinkers stood in the area the fountains were in so the fountains could not be turned on for children to play in them. She stated that this was not what was intended when the scheme was implemented, and the atmosphere of the open space had changed. She stated that it was not right that children would not be able to pay after 5.30pm when the premises could spill out. She stated that there were not many places in the City of London where children could play and this space was designed for them. The Member stated that the pavilion would not fail if the premises closed down as there were others willing to open a café in the space.

 

A number of Members stated that they were not in support of a pub in an area where children played and which was close to the entrance of a school. A Member stated that there were other premises nearby where people could drink, but there were no other local spaces for the community.

 

A Member stated that there were lots of local families in the area without outside spaces or balconies and they should not have to leave the park at 5.30pm.

 

A Member stated that many people would not feel comfortable entering the pavilion to use the toilets which would be part of the community toilet scheme.

 

A Member raised concern that the food being provided was not a substantial offering. Another Member stated a pizza menu had only recently been uploaded to the website and he had been unable to book a table for a meal when he had tried.

 

A Member stated that whilst he acknowledged that Officers had worked to mitigate impacts e.g. through the management plan, he did not agree with the principle of granting permission.

 

A Member stated that there were issues with how the City of London Corporation, as landlord, wished to sculpt the public space. There were also issues in relation to the planning authority and what should be done from a planning perspective. There were also issues from a licensing perspective. The Member stated that from a planning perspective, he did not consider there to be a reason people could not enjoy a drink with friends in the park. He stated that from a licensing perspective, it appeared that most of the concerns were with the specific operator and with specific instances e.g. of anti-social behaviour and he considered that these could be dealt with through enforcement and planning and licensing conditions.

 

The Chairman stated that the site was not in isolation in Aldgate; there were many licensed premises close to the school and the church that existed and operated in a well-enforced manner and the area was renowned for its vibrancy,

 

A Member raised concerns about people with pushchairs or in wheelchairs being able to get past people drinking in the space.

 

A Member suggested that in the future, consideration could be given to putting public space protection orders in place.

 

A Member stated that the square was specifically designed as an open space and suggested that if an application had been submitted for a pub in the consultation phase, it would not have been passed. She stated that consultees had been listened to and the scheme had been designed accordingly. The Member stated that if this planning permission was now granted, it would change the space.

 

In response to a Member’s question, an Officer stated that the planning application sought planning permission for a change of use to a sui generis drinking establishment, and therefore it would cease to be a café/restaurant if the planning permission was granted.

 

Having fully debated the application, the Committee proceeded to vote on the recommendation before them.

 

Votes were cast as follows: IN FAVOUR – 2 votes

                                             OPPOSED – 11 votes

                                             There was 1 abstention.

 

Deputy John Fletcher and Jacqui Webster did not vote as they had recused themselves. Deputy Brian Mooney, Deborah Oliver and Deputy Henry Pollard did not vote as they were not present for this item.

 

The Chairman reported that, with the majority having refused the application, it was now important for the Sub-Committee to register their reasons for this. The Director of Planning and Development stated that Officers had been following the debate and it was clear there were concerns in relation to the use and the character of Aldgate Square, especially due to the proximity to the school, and the impact on amenity. He recommended that Officers prepare a report detailing reasons for refusal reflecting the Committee’s discussion, for approval at the next meeting. A Member stated there were other reasons in policy including the improvement of the Aldgate area given the challenges, improving the open spaces, biodiversity and activity which could also be included.

 

RESOLVED – That the application be refused, and that Officers be instructed to prepare a report detailing reasons for refusal reflecting the Sub-Committee’s discussion for submission to the next meeting of this Sub-Committee for formal approval.