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CITY OF WESTMINSTER

PLANNING APPLICATIONS SUB COMMITTEE

Date

26 February 2019

Classification

For General Release

Report of

Executive Director Growth Planning and Housing

Ward(s) involved

West End

Subject of Report 49 Maddox Street, London, W1S 2PQ

Proposal Variation of Conditions 3, 4, 5, 7, 8 and 9 of planning permission dated 8 April 2013 (RN: 13/01588) for the continued use of ground floor for cafe/restaurant purposes (Class A3) and installation of new ventilation duct at rear; NAMELY to (i) increase the hours of use of the restaurant premises to allow for opening from 07:00am to 23.30 Monday to Thursday, 07:00 to midnight Friday to Saturday and between 10:00 and 22:30 on Sundays (including Bank Holidays); (ii) To increase the plant/machinery operating times to 08:00 to 23.30 Monday to Saturday and 10:00 and 22:00 on Sundays (including Bank Holidays); (iii) To increase the capacity of the restaurant from 34 covers to 45 covers; (iv) To allow a small ancillary customer bar area to be used exclusively to serve restaurant customers only; (v) to change the layout of the ground floor and (vi) to update refuse plan numbers.

Agent Firstplan

On behalf of DUM Biryani House

Registered Number 18/10144/FULL Date amended/ completed

7 December 2018

Date Application Received

28 November 2018

Historic Building Grade Grade II

Conservation Area Mayfair

Premises Licence Granted October 2018 for the premises to be open 07.00 - midnight Monday to Thursday, 07.00-00.30 Friday to Saturday and 08.00 - 23.00 on Sundays. The conditions on the licence also restrict the covers to 45 and state that alcohol can only be served to people dining

1. RECOMMENDATION

Grant conditional permission.

2. SUMMARY

The application site comprises the ground floor, which is in lawful use as a restaurant/café (Class A3), pursuant to a consent granted originally in 2005. The premises is currently vacant and new

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restaurant operators wish to occupy the ground floor. Permission is sought to vary a number of conditions to enable the new operators to open later in the evening, extend the hours of operation for the plant, to introduce an ancillary bar and to increase the number of covers from 34 to 45. The key issue for consideration is the impact of the later hours, bar area and increase in covers on residential amenity The size of the premises is modest at 90sqm. The proposed hours are in line with the core hours in the UDP and the increase to the number of covers is also acceptable. It is considered that the variation to the conditions is in line with the policies set out in Unitary Development Plan (UDP) and Westminster’s City Plan and is therefore recommended for approval.

3. LOCATION PLAN

..

This production includes mapping data

licensed from Ordnance Survey with the

permission if the controller of Her Majesty’s

Stationary Office (C) Crown Copyright and /or

database rights 2013.

All rights reserved License Number LA

100019597

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4. PHOTOGRAPHS

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5. CONSULTATIONS

RESIDENTS SOCIETY OF MAYFAIR & ST. JAMES'S Any response to be reported verbally. MAYFAIR RESIDENTS GROUP Any response to be reported verbally. PLANT AND EQUIPMENT No objection to the extended plant operation hours, concerns raised to the lack of a noise report for customers leaving the premises. ADJOINING OWNERS/OCCUPIERS AND OTHER REPRESENTATIONS RECEIVED No. Consulted: 122 No. of objections: 2 letter of objection raising some or all of the following: Amenity - smells from extract duct - noise from within premises - noise from later hours of operation Land use - establishment would detract from area Other - risk of fire from ovens - fire and escape risk from basement workshop - security implications - sewerage issues PRESS ADVERTISEMENT / SITE NOTICE: Yes

6. BACKGROUND INFORMATION

6.1 The Application Site

No. 49 Maddox Street is a Grade II listed property, located on the southern side of Maddox Street within the Mayfair Conservation Area. This part of Maddox Street lies outside the West End Stress Area but within the Core Central Activities Zone. The ground floor of No. 47 is currently vacant, but was last occupied as Hamilton's Cafe. The basement is in use as workrooms and upper floors are used as offices.

6.2 Recent Relevant History Planning permission was granted on 7 April 2005 for the continued use of the ground floor for cafe/restaurant purposes (Class A3) and installation of new ventilation duct at rear.

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Planning permission was granted on 8 April 2013 for the variation of Condition 3 and 5 of planning permission dated 7 April 2005 (RN: 04/09358); namely, to increase the hours of use of the premises for cafe/restaurant purposes to 18.00 to 22.30 hours Monday to Saturday and to operate on Sundays from 10:00 - 17.30 (including Bank Holidays), also to increase the operational hours of the plant in line with the above times.

7. THE PROPOSAL

Permission is sought to increase the hours of operation of the restaurant until 23.30 Monday to Thursday (an additional hour from 22.30), until midnight on Friday and Saturdays (an additional hour and half from 22.30) and until 22.30 on Sundays and Bank Holidays (additional five hours from 17.30). The plant hours will also be increased, but will cease to operate half an hour before closing. It is also proposed to increase the number of covers by 11 from 34 to 45. The proposal also includes the use of part of the ground floor as a bar, which will be ancillary to the restaurant use. Other conditions will also be updated/varied to reflect the restaurant layout and updated drawing numbers.

8. DETAILED CONSIDERATIONS

8.1 Land Use UDP Policy TACE8 applies as the floorspace is below 150sqm (90sqm). Two objections have been received on the grounds that the changes to the proposed hours of operation will have an adverse impact, in terms of noise, increase in the number of customers leaving the premises, and the impact the introduction an ancillary bar will have on the area. The nearest residential is located on the top floor of 51 Maddox Street, which is adjacent to the application site, there are also residential properties opposite the site. The existing consent allows the premises to be open until 22.30 Monday to Saturday and 17.30 on Sundays. As set out above, permission is sought to allow the restaurant to be open until 23.30 Monday to Thursday, midnight on Friday and Saturdays and 22.30 on Sundays. These hours are less than the core hours set out in the UDP, which states at paragraph 8.88 that "the Council expects that, in entertainment uses in predominantly residential areas, it will impose planning conditions that no customers will be allowed to remain on the premises after midnight on Sundays to Thursdays and after 12.30am on the following morning on Friday and Saturday nights". The proposed hours are consistent with the UDP, and it is considered that the hours are acceptable in this area. Condition 9 of the 2013 consent prevents any of the ground floor being used as a bar area. It is now proposed to include an ancillary bar. This will be ancillary to the restaurant and will only be used in connection with the restaurant use and will serve customers before, during and after their meals and this will be secured by condition. The proposed covers is set to increase to 45 from 34, the existing and proposed number of covers is modest and is considered acceptable. The objections state that the introduction of a bar, coupled with the increase in customers will create an increase in

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noise and rowdiness in the area. The bar area will however be used exclusively to serve restaurant customers only, and combined with the restricted overall capacity, it is not considered that there would be an adverse impact on the residential amenity in the area. It is noted that a Premises Licence has been granted (October 2018) which allows the premises to be open 07.00 - midnight Monday to Thursday, 07.00-00.30 Friday to Saturday and 08.00 - 23.00 on Sundays. The conditions on the licence also restrict the covers to 45 and state that alcohol can only be served to people dining. An objection has been received on the grounds that the restaurant will detract from the character of the area, and would be more suited to Soho. The proposed user of the restaurant is not a planning consideration, and the application which seeks to vary conditions on a lawful restaurant use cannot be refused on these grounds.

8.2 Townscape and Design

The proposal does not raise any design or conservation area issues.

8.3 Residential Amenity

No external alterations are proposed and therefore the proposal does not raise residential amenity implications.

8.4 Transportation/Parking The proposal does not raise any transportation implications.

8.5 Economic Considerations

No economic considerations are applicable for a development of this size

8.6 Access

The existing access arrangements are not proposed to alter as a result of this application, which only relates to the variation of conditions.

8.7 Other UDP/Westminster Policy Considerations

Plant The plant hours are proposed to increase in line with the proposed opening hours. An acoustic report has been submitted and Environmental Health have no objection to the increase in the hours for the plant. An objection has been received on the basis of noise transference from the restaurant to the offices at first floor level. The proposed operators also have a restaurant in Soho and play amplified music. As it is known that the restaurant plays amplified music, it is considered necessary to impose the standard condition relating to internal noise.

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Environmental health have requested a noise report to deal with customers leaving the premises. The size of the premises is modest and coupled with the limited number of covers it is not considered that a report to deal with customers leaving is necessary. Concerns have been received relating to the odours from the restaurant. There is an existing full height extract duct which was granted consent in April 2005, which terminates above residential windows. The new operators will use the existing duct, therefore it is considered that this concern is addressed.

8.8 Westminster City Plan

The City Council is currently working on a complete review of its City Plan. Informal consultation on the first draft of Westminster’s City Plan 2019-2040 started on Monday 12 November 2018 and will close on Friday 21 December 2018. Following this informal consultation, any representations received will be considered and the draft plan will be revised in advance of formal consultation under Regulation 19 of the Town and Country Planning Act (Local Planning) (England) Regulations 2012. Given the very early stage of the consultation process and having regard to the tests set out in para. 48 of the NPPF, the policies of the emerging draft City Plan are given little to no weight at the present time.

8.9 Neighbourhood Plans The submission version of the Mayfair Neighbourhood Plan has been submitted by Mayfair Neighbourhood Forum to the council for consultation and an independent examiner is due to be appointed shortly.

8.10 London Plan

This application raises no strategic issues.

8.11 National Policy/Guidance Considerations

The City Plan and UDP policies referred to in the consideration of this application are considered to be consistent with the NPPF unless stated otherwise.

8.12 Planning Obligations

Not applicable.

8.13 Environmental Impact Assessment Not applicable.

8.14 Other Issues

Further concerns have been raised with regards to the risk of fire from the premises and the subsequent impact on the means of escape for the basement workrooms, issues surrounding anti-social behaviour and the impact on the sewers. The means of escape from the basement is not changed as a result of these proposals and as the restaurant

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will only serve alcohol to diners, it is not considered that this will add to the anti-social behaviour in the vicinity. The impact on the sewer system is a matter for Thames Water, but as the covers are only increasing by 11, it is not considered that there would be an increased impact on the existing systems.

(Please note: All the application drawings and other relevant documents and Background Papers are available to view on the Council’s website)

IF YOU HAVE ANY QUERIES ABOUT THIS REPORT PLEASE CONTACT THE PRESENTING OFFICER: JO PALMER BY EMAIL AT jpalme@westminster.gov.uk

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9. KEY DRAWINGS

Proposed ground floor plan

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DRAFT DECISION LETTER

Address: 49 Maddox Street, London, W1S 2PQ, Proposal: Variation of Conditions 3, 4, 5, 7, 8 and 9 of planning permission dated 8 April 2013

(RN: 13/01588) for, the variation of Condition 3 and 5 of planning permission dated 7 April 2005 (RN: 04/09358); which allowed an increase to the hours of use of the premises for cafe/restaurant purposes to 18.00 to 22.30 hours Monday to Saturday and to operate on Sundays from 10:00 - 17.30 (including Bank Holidays), also to increase the hours the plant is operational in line with the above times. NAMELY to (i) Increase the hours of use of the restaurant premises to allow for opening from 07:00am to 11.30pm Monday to Thursday, 07:00 to midnight Friday to Saturday and between 10:00 and 22:30 on Sundays (including Bank Holidays); (ii) To increase the plant/machinery operating times to 08:00 to 23.30 Monday to Saturday and 10:00 and 22:00 on Sundays (including Bank Holidays); (iii) To increase the capacity of the restaurant from 34 covers to 45 covers; and (iv) To allow a small ancillary customer bar area to be used exclusively to serve restaurant customers only, (v) to change the layout of the ground floor and (vi) to update refuse condition.

Reference: 18/10144/FULL Plan Nos: LPS2131-6,

13/01588, Planning statement, site location plan, acoustic report dated March 2004

Case Officer: Helen MacKenzie Direct Tel. No. 020 7641 2921 Recommended Condition(s) and Reason(s) 1

(1) Where noise emitted from the proposed plant and machinery will not contain tones or will not be intermittent, the 'A' weighted sound pressure level from the plant and machinery (including non-emergency auxiliary plant and generators) hereby permitted, when operating at its noisiest, shall not at any time exceed a value of 10 dB below the minimum external background noise, at a point 1 metre outside any window of any residential and other noise sensitive property, unless and until a fixed maximum noise level is approved by the City Council. The background level should be expressed in terms of the lowest LA90, 15 mins during the proposed hours of operation. The plant-specific noise level should be expressed as LAeqTm, and shall be representative of the plant operating at its maximum. (2) Where noise emitted from the proposed plant and machinery will contain tones or will be intermittent, the 'A' weighted sound pressure level from the plant and machinery (including non-emergency auxiliary plant and generators) hereby permitted, when operating at its noisiest, shall not at any time exceed a value of 15 dB below the minimum external background noise, at a point 1 metre outside any window of any residential and other noise sensitive property, unless and until a fixed maximum noise level is approved by the City Council. The background level should be expressed in terms of the lowest LA90, 15 mins during the proposed hours of operation. The plant-specific noise level should be expressed as LAeqTm, and shall be representative of the plant operating at its maximum., , (3) Following installation of the plant and equipment, you may apply in writing to

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the City Council for a fixed maximum noise level to be approved. This is to be done by submitting a further noise report confirming previous details and subsequent measurement data of the installed plant, including a proposed fixed noise level for approval by the City Council. Your submission of a noise report must include:, (a) A schedule of all plant and equipment that formed part of this application;, (b) Locations of the plant and machinery and associated: ducting; attenuation and damping equipment;, (c) Manufacturer specifications of sound emissions in octave or third octave detail;, (d) The location of most affected noise sensitive receptor location and the most affected window of it;, (e) Distances between plant & equipment and receptor location/s and any mitigating features that may attenuate the sound level received at the most affected receptor location;, (f) Measurements of existing LA90, 15 mins levels recorded one metre outside and in front of the window referred to in (d) above (or a suitable representative position), at times when background noise is at its lowest during hours when the plant and equipment will operate. This acoustic survey to be conducted in conformity to BS 7445 in respect of measurement methodology and procedures;, (g) The lowest existing L A90, 15 mins measurement recorded under (f) above;, (h) Measurement evidence and any calculations demonstrating that plant and equipment complies with the planning condition;, (i) The proposed maximum noise level to be emitted by the plant and equipment.

Reason: Because existing external ambient noise levels exceed WHO Guideline Levels, and as set out in ENV 6 (1), (6) and (8) and ENV 7 (A)(1) of our Unitary Development Plan that we adopted in January 2007, so that the noise environment of people in noise sensitive properties is protected, including the intrusiveness of tonal and impulsive sounds; and as set out in S32 of Westminster's City Plan (November 2016), by contributing to reducing excessive ambient noise levels. Part (3) is included so that applicants may ask subsequently for a fixed maximum noise level to be approved in case ambient noise levels reduce at any time after implementation of the planning permission. (R46AB)

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No vibration shall be transmitted to adjoining or other premises and structures through the building structure and fabric of this development as to cause a vibration dose value of greater than 0.4m/s (1.75) 16 hour day-time nor 0.26 m/s (1.75) 8 hour night-time as defined by BS 6472 (2008) in any part of a residential and other noise sensitive property.

Reason: As set out in ENV6 (2) and (6) of our Unitary Development Plan that we adopted in January 2007, to ensure that the development is designed to prevent structural transmission of noise or vibration. (R48AA)

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The plant/machinery hereby permitted shall not be operated except between 08.00 - 23.30 Monday to Saturday and 10.00 - 22.00 on Sundays (including Bank Holidays).

Reason: To safeguard the amenity of occupiers of noise sensitive properties and the area generally by

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ensuring that the plant/machinery hereby permitted is not operated at hours when external background noise levels are quietest thereby preventing noise and vibration nuisance as set out in S32 of Westminster's City Plan (November 2016) and ENV 6 and ENV 7 of our Unitary Development Plan that we adopted in January 2007. (R46CB)

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The refuse store shown on drawing LPS2131-6 shall be provided and made available at all times. You must not use the waste store for any other purpose.

Reason: To protect the environment and provide suitable storage for waste as set out in S44 of Westminster's City Plan (November 2016) and ENV 12 of our Unitary Development Plan that we adopted in January 2007. (R14BD)

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You must not open the restaurant premises to customers, and you must not allow customers on the premises, outside the following times: between 07:00 to 23.30 Monday to Thursday, 07:00 to midnight Friday to Saturday and between 10:00 and 22:30 on Sundays (including Bank Holidays)

Reason: To protect the environment of people in neighbouring properties as set out in S24, S29 and S32 of Westminster's City Plan (November 2016) and ENV 6, ENV 7 and SS13 of our Unitary Development Plan that we adopted in January 2007. (R12AC)

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You must use the property only for restaurant and/or cafe purposes. You must not use it for any other purpose, including any within Class A3 of the Town and Country Planning (Use Classes) Order 1987 as amended April 2005 (or any equivalent class in any order that may replace it). (C05AB)

Reason: We cannot grant planning permission for unrestricted use in this case because it would not meet SS13 of our Unitary Development Plan that we adopted in January 2007. (R05AB)

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There shall be no more than 45 covers in the restaurant (not including any outdoor seating). (C05HA)

Reason: We cannot grant planning permission for unrestricted use in this case because it would not meet TACE 8 of our Unitary Development Plan that we adopted in January 2007. (R05AB)

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8

The layout of the ground floor as shown on drawing number LPS2131-6 should remain unless otherwise agreed in writing by the City Council as Local Planning Authority

Reason: We cannot grant planning permission for unrestricted use in this case because it would not meet SS13 of our Unitary Development Plan that we adopted in January 2007. (R05AB)

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If you provide a bar and bar seating, it must not take up more than 15% of the floor area of the property, or more than 15% of each unit if you let the property as more than one unit. You must use the bar to serve restaurant customers only, before, during or after their meals. (C05GA)

Reason: We cannot grant planning permission for unrestricted use in this case because it would not meet SS13 of our Unitary Development Plan that we adopted in January 2007. (R05AB)

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You must paint the new ventilation duct black and keep it that colour. (C26EA),

Reason: To make sure that the appearance of the building is suitable and that it contributes to the character and appearance of this part of the Mayfair Conservation Area. This is as set out in S25 and S28 of Westminster's City Plan (November 2016) and DES 1 and DES 5 or DES 6 or both and paras 10.108 to 10.128 of our Unitary Development Plan that we adopted in January 2007. (R26BE)

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The development hereby permitted shall be carried out in accordance with the drawings and other documents listed on this decision letter, and any drawings approved subsequently by the City Council as local planning authority pursuant to any conditions on this decision letter.

Reason: For the avoidance of doubt and in the interests of proper planning.

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(1) Where noise emitted from the proposed internal activity in the development will not contain tones or will not be intermittent, the 'A' weighted sound pressure level from the internal activity within the restaurant use hereby permitted, when operating at its noisiest, shall not at any time exceed a value of 10 dB below the minimum external background noise, at a point 1 metre

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outside any window of any residential and other noise sensitive property, unless and until a fixed maximum noise level is approved by the City Council. The background level should be expressed in terms of the lowest LA90, 15 mins during the permitted hours of use. The activity-specific noise level should be expressed as LAeqTm,, and shall be representative of the activity operating at its noisiest., , (2) Where noise emitted from the proposed internal activity in the development will contain tones or will be intermittent, the 'A' weighted sound pressure level from the internal activity within the restaurant use hereby permitted, when operating at its noisiest, shall not at any time exceed a value of 15 dB below the minimum external background noise, at a point 1 metre outside any window of any residential and other noise sensitive property, unless and until a fixed maximum noise level is approved by the City Council. The background level should be expressed in terms of the lowest LA90, 15 mins during the permitted hours of use. The activity-specific noise level should be expressed as LAeqTm, and shall be representative of the activity operating at its noisiest., , (3) Following completion of the development, you may apply in writing to the City Council for a fixed maximum noise level to be approved. This is to be done by submitting a further noise report including a proposed fixed noise level for approval by the City Council. Your submission of a noise report must include:, (a) The location of most affected noise sensitive receptor location and the most affected window of it;, (b) Distances between the application premises and receptor location/s and any mitigating features that may attenuate the sound level received at the most affected receptor location;, (c) Measurements of existing LA90, 15 mins levels recorded one metre outside and in front of the window referred to in (a) above (or a suitable representative position), at times when background noise is at its lowest during the permitted hours of use. This acoustic survey to be conducted in conformity to BS 7445 in respect of measurement methodology and procedures;, (d) The lowest existing LA90, 15 mins measurement recorded under (c) above;, (e) Measurement evidence and any calculations demonstrating that the activity complies with the planning condition;, (f) The proposed maximum noise level to be emitted by the activity.

Reason: Because existing external ambient noise levels exceed WHO Guideline Levels and as set out in ENV 6 (1), (6) and (8) and ENV 7 (A)(1) of our Unitary Development Plan that we adopted in January 2007 (UDP), so that the noise environment of people in noise sensitive properties is protected, including the intrusiveness of tonal and impulsive sounds; and as set out in S32 of Westminster's City Plan (November 2016), by contributing to reducing excessive ambient noise levels. Part (3) is included so that applicants may ask subsequently for a fixed maximum noise level to be approved in case ambient noise levels reduce at any time after implementation of the planning permission. (R47AB)

Informative(s): 1

In dealing with this application the City Council has implemented the requirement in the National Planning Policy Framework to work with the applicant in a positive and proactive way. We have made available detailed advice in the form of our statutory policies in Westminster's City Plan (November 2016), Unitary Development Plan, neighbourhood plan (where relevant), supplementary planning documents, planning briefs and other informal written guidance, as well

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as offering a full pre application advice service, in order to ensure that applicant has been given every opportunity to submit an application which is likely to be considered favourably. In addition, where appropriate, further guidance was offered to the applicant at the validation stage.

Please note: the full text for informatives can be found in the Council’s Conditions, Reasons & Policies handbook, copies of which can be found in the Committee Room whilst the meeting is in progress, and on the Council’s website.

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BACKGROUND PAPERS - 49 Maddox Street, London, W1S 2PQ - 18/10144/FULL

1. Application form 2. Letter from occupier of King House, 51A Maddox Street, dated 27 December 2018 3. Letter from occupier of Flat 2, 339 Portobello Road, dated 7 January 2019 4. Response from Environmental Health, dated 21 January 2019