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CITY OF WESTMINSTER
LICENSING SUB-COMMITTEE (No.2)
26 APRIL 2001
MINUTES OF PROCEEDINGS
At a meeting held on Thursday, 26 April, 2001 at the Council House,
Marylebone Road, London NW1 at 9.30am.
PRESENT: Councillors: Anne Barns (Chairman)
Jan Prendergast
Guthrie McKie
1 MEMBERSHIP
1.1 There were no changes in membership to report.
2. DECLARATIONS OF INTEREST
2.1 There were no Declarations of Interest.
3. REGULATION OF STREET TRADING- PITCH 941
ABBEY ROAD NW8
3.1 The Sub-Committee considered the report of the Director of
Planning and Transportation introduced by Mr. Tim Spencer,
Counsel appearing on behalf of the Licensing Business Unit
concerning a request to change the commodities sold on a
street trading pitch from newspapers to Beatles Memorabilia.
This matter had been adjourned part-heard from a previous
hearing on 20 March 2001 and members were reminded that
Pitch 941 was subject to a specification order restricting the
commodities sold from the pitch to newspapers. Mr. T.
Davies, the licence holder, had requested that the specification
order be amended to permit the sale of Beatles memorabilia
and a statutory consultation exercise had been carried out to
ascertain the view of local residents.
3.2 Mr. Matthew Roberts, Counsel for the applicant introduced
Father Colin Davies, Rector of the Church of Our Lady, St.
John’s Wood. Father Davies had previously written a letter in
support of the applicant, which appeared on page 96 of the
bundle of papers submitted to the previous hearing. Father
Davies stated that his support for the applicant was a personal
one. He often walked past the site and noted that Mr. Davies
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frequently took photographs of tourists who wanted to have
their pictures taken on the zebra crossing. There were never
any problems and it was a very friendly area. He was unaware
of any concern having been expressed by anybody, neither
did he know of any adverse reaction to the application to sell
Beatles memorabilia.
3.3 In response to a question from Tim Spencer, Father Davies
confirmed that he had not specifically consulted his
parishioners before giving his support to the applicant. He also
confirmed that he was no relation to the applicant. Mr. James
Palmer, Counsel for the objectors, questioned whether Father
Davies considered this to be a pastoral or a political matter.
Father Davies did not consider it to be a pastoral matter and
Mr. Palmer stated that it was therefore a matter for Councillors
rather than a parish priest. Father Davies disagreed.
3.4 Mr. Roberts then introduced Mr. James Sproul who had
prepared the safety assessment for Paul Mew Associates
acting on behalf of the applicant. Mr. Sproul was a traffic
engineer by profession and specialised in road accident
investigation, highway safety, safety audits and monitoring. He
had been in practise since 1963. Mr. Sproul stated that his
report gave no indication that this particular stretch of Abbey
Road contained any specific traffic hazard and this was borne
out by the accident record. Also, Abbey Road had wide
carriageways on either side and on the western side this was
3.41 metres wide, which, even allowing for the size of the
pitch, 600mm (2 feet), still left an area of 2.81 metres, which
he considered to be more than adequate at this point for two
people pushing pushchairs to pass each other comfortably.
3.5 Five accidents had been recorded since 1998, three of which
he did not consider to be relevant. The remaining two involved
injuries to pedestrians on the Abbey Road zebra crossing,
both involving southbound vehicles and both occurring in
darkness on a wet surface. No accidents involving pedestrians
have taken place during daylight hours when tourists were
likely to be visiting the area and the stall would be operating. In
response to questions from Mr. Spencer, Mr. Sproul did not
agree that the stall would obstruct the visibility of drivers of
vehicles emerging from Garden Road, although this was a
difficult junction for vehicles turning right. Mr. Sproul did not
agree that the stall would lead to severe congestion in that
area nor would it be a severe safety hazard since the footway
at that point was quite wide. While he had been carrying out
his survey, Mr. Sproul noted that there had not been many
tourists in evidence and that there had been no large groups
at all. Mr. Spencer pointed out that since the outbreak of Foot
and Mouth Disease in February, there had been an attendant
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drop in tourists visiting London and that this particular aspect
of the survey could well have been untypical and
unrepresentative. Mr. Sproul was unable to comment on the
possible effect the existence of the stall would have on local
amenities.
3.6 Mr. James Palmer suggested to Mr. Sproul that since the
accident records only referred to reported accidents involving
personal injury and made no reference to any other
circumstances, the statistics he had presented had no
particular relevance. Mr. Sproul denied this. He had been
asked for the report 2 to 3 weeks beforehand and had been
given material by the Solicitors acting for the applicant and a
letter of instruction. Mr. Sproul’s report was based on the
information he had gleaned on site rather than from any
measurements taken. He did not use the report dated 7
January 1999 by the Councils Highways Department neither
did he consider the issue of access to nearby buildings, the
circumstances of pedestrians nor their impact at various times
of the day. Mr. Sproul handed his letter of instruction to Mr.
Palmer.
3.7 Mr. Palmer then raised several issues arising from Mr.
Sproul’s report. These included resident’s access to Albany
Court, pedestrian numbers, and numbers and locations of
schools. Mr. Sproul responded that most pedestrians arrived in
the area for test Cricket matches at Lords. He had found out
the location of the various schools in the area by way of a
street map although he had not been made specifically aware
of their existence. There did not appear to be any children
around while the tours were visiting the area. He had received
no information on the numbers or frequency of tour groups. If
he had, he would have attended at specific times. Mr. Palmer
suggested that Mr. Sproul had been badly briefed by those
who had instructed him. Mr. Palmer produced photographs
showing a tour group of some 30 – 40 people. Assuming this
number of people were standing at the stall, Mr. Palmer invited
Mr. Sproul to comment on whether sight lines would be
impeded but he declined to do so even though Mr. Palmer
continued to press the point. At this point, Mr. Roberts
objected on the grounds that Mr. Palmer was making
unsubstantiated assessments of the numbers of people who
would be gathered around Mr. Davies’ stall and trying to
present them as fact by putting words into Mr. Sproul’s mouth.
3.8 Mr. Palmer referred to a letter from the Metropolitan Police
Service to the Licensing Business Unit at annex G in the
papers, which appeared to contradict the findings of Mr.
Sproul’s report concerning the frequency and size of tour
groups, prevailing traffic conditions and the potential for road
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traffic accidents. Mr. Palmer raised the matter of recorded
accidents again stressing that the only accidents recorded
were those involving personal injury and that Mr. Sproul did
not have access to the information contained in the letter at
annex G. Mr. Palmer continued to try to establish that a crowd
similar in size to that shown in the photograph was likely to
congregate around the applicant’s stall causing a
consequential obstruction of the carriageway, which would be
difficult for other pedestrians to penetrate with perambulators,
people with disabilities or children. Mr. Palmer continued to
challenge the validity of Mr. Sproul’s findings repeating points
he had raised earlier. He referred to a memorandum from the
councils Highway Client Group at annex N of the Agenda
papers which tended to contradict Mr. Sproul’s findings
concerning the potential for traffic hazards surrounding the
stall, the zebra crossing sight line, loitering pedestrians and
the desirability of selling Beatles memorabilia.
3.9 In response to questions from Councillors, Mr. Sproul stated
that he had not made any computerised reconstructions of the
prevailing traffic conditions or any overall picture of how it
might look. He did not know where tour buses stopped but he
had been told that they stopped outside Abbey Road Studios.
Tim Spencer asked Mr. Sproul whether his letter of instruction
contained any form of “steer” as to the sort of conclusions he
should reach. Mr. Sproul resented the implication that his
findings were anything but impartial. He had provided an
independent assessment regardless of whether this was
beneficial to his client or not.
3.10 Mr. Matthew Roberts supported Mr. Sproul’s statement that his
report was totally independent. He referred to the photographs
produced by Mr. Palmer. These had been produced at the last
hearing and showed nothing new. It showed that the
pavement outside Abbey Road Studios was blocked by
tourists. The same thing would have occurred if the applicants
stall had been placed further down the road. The tours had
been going on for years. The site of the pitch was not currently
on the guided tour route. Mr. Palmer had been trying to put
words into the mouth of Mr. Sproul. The important fact was
that there had been very few accidents in this area involving
personal injury. Mr. Sproul agreed with this assessment. Mr.
Sproul did not feel that the presence of the applicant’s stall
constituted any further traffic hazard. Drivers emerging from
Garden Road might experience difficulties but there would be
no impact on the forward visibility of drivers in Abbey Road. If
he had wanted to ascertain the precise number of tourists in
the area, Mr. Sproul stated that he would have conducted a
survey over a period of two months or so. Mr. Roberts again
claimed that Mr. Palmers questioning was not so much cross-
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examination as a cynical attempt to put words into Mr. Sproul’s
mouth.
3.11 At this point, Mr. Roberts produced a letter from one Desiree
Erasmus, which had been faxed to him at 6.06 pm on Friday,
23 April and supported the applicant. Mr. Palmer objected to
the introduction of the letter and both sides made
representations to the Sub-Committee
At 11am, the Sub-Committee withdrew to consider whether to accept the
letter introduced by the applicant. At 11.12 am, the Sub-Committee re-
convened to announce their decision.
3.12 The Sub-Committee agreed to accept the letter into evidence
and they invited Mr. Spencer and Mr. Palmer to comment. Mr.
Spencer stated that the acceptance of the letter was
unfortunate since there would be no opportunity for the
witness to be cross-examined, a point supported by Mr.
Palmer. Mr. Palmer also stated that Abbey Road Studios was
the last stop on the tourist route from which the tourists tended
to disperse. From this point onwards, the tour organisers
effectively had no control over the tourists’ activities and they
were quite free to go to the applicant’s stall should they wish to
do so. He also took exception to the statement in paragraph 5
of the letter that tour groups would not be walking past the
stall. The stall was not there at present so they could not do so
even if they wanted to.
3.13 Mr. Roberts referred to 3 important issues in rebuttal of
evidence already given and he asked whether Mr. Davies
could be recalled to substantiate these. They were:-
- The location of local schools was not correct
- The layout and location of the pitch were not
correct
- The pitch had public liability insurance and had
not been occupied since the early 1980’s
Mr. Palmer objected on the grounds that Mr. Davies had
already been given a substantial amount of time to support his
case and he was aware that certain of his witnesses were time
constrained and unable to remain for the whole of the day.
3.14 Mr. Davies was recalled. In response to questions from Mr.
Roberts he stated that there were no schools on the left hand
side of Abbey Road. The nearest point of a school was the
Quinton Kynaston School in Margaret Place, approximately 5
minutes walk from Abbey Road. The American School was
also close by. Neither would affect the pitch as none of the
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pupils would have any reason to go there. The extremities of
the pitch were marked out by duct access covers
approximately 18 feet north of the junction with Garden Road.
The pitch measured 2ft by 9ft. The question of insurance had
been raised at the last meeting. When he had been trading
illegally, Mr. Davies had been unable to obtain insurance
cover. After he had obtained his licence, he took out a policy
which gave him £2m public liability insurance. The pitch had
been occupied in the early 1980’s but, because of work being
carried out on the access covers, he had to move to a
temporary location.
3.15 In response to a question from Mr. Spencer, who had queried
whether Mr. Davies was covered under his public liability
insurance for accidents arising from people stepping into the
road to avoid the crowds around his stall, Mr. Davies stated
that he was covered for everything for which he was legally
responsible. Mr. Palmer asked why Mr. Davies had raised this
issue at all. Mr. Davies responded that he examined the issue
of insurance first in 1999 at the request of the Council and he
had arranged it at that time – not as a means of appeasing the
Council.
3.16 Mr. Palmer then commenced the presentation of evidence by
the objectors and called Ms Janet Meek, Second Secretary
and Chief of Property Division at the United States Embassy.
The Embassy provided homes for 250 families throughout
London and was the owner of Albany Court . Families were
placed in London for 2-4 years at a time and their particular
housing assignments were considered to be important. Prior to
this hearing, Ms. Meek consulted all of her residents in the
area by e mail and she had received some strong responses.
For example, a mother of a 13 year old girl stated that the
pitch would be dangerous for pedestrians and constituted a
real potential problem. Other respondents stated that their
windows in Albany Court looked out onto the zebra crossing
where many tourists stopped to take photographs. There was
a high daily volume of traffic. Also, she produced a photograph
taken from Albany Court with the pitch just to one side of the
entrance. Ms. Meek felt that not only would crowds be
attracted to the stall, they were likely to spill over into the
driveway and gardens of Albany Court and from there into the
living areas. Crowds would loiter outside Albany Court and any
children returning from the American School were likely to be
residing in Albany Court. Ms. Meek pointed out that the earlier
letter from the Embassy contained in the pack of papers
produced by the applicant, apparently in support of the
application, was nothing of the sort. It referred to another
matter completely involving a previous newspaper vendor. The
author of the letter, Mr. D’Cruz, was no longer employed by
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the Embassy. She had not been informed about the hearing in
December 2000 or she would have attended. She had no
objection to the Beatles and was positive about the existence
of the studios but she wanted her residents to retain the quiet
enjoyment of their homes. Mr. Roberts asked to see the
witness statements and was shown the relevant paperwork, as
was the Sub-Committee.
3.17 Ms. Meek accepted that the studios were a tourist attraction
and that the zebra crossing was an international draw for
tourists but it was a very busy area, there were many tourists
and the zebra crossing was “tricky.” She confirmed that she
had never seen the stall operating, neither had any of the
residents of Albany Court. She had objected in response to the
wishes of the residents of Albany Court. They had felt that any
commercial activity being carried out in the street outside their
homes was unacceptable. Tourists were not being drawn to
Albany Court at present but if the pitch were there, then it was
likely that they would be and this was of concern to residents.
Ms Meek had not discussed her objections with Apple/EMI.
Questions asked by Mr. Spencer and Mr. Palmer revealed that
there were between 1000 and 1800 pupils at the American
School and many travelled there daily from some distance.
However the majority lived in the immediate area and walked
to school.
3.18 Mr. Palmer introduced Mr. Chris Buchanan, Director of
Operations at Abbey Road Studios. The studios had an
agreement with “Abbey Road Café” at St. John’s Wood
underground station. This is a very minor commercial
operation and there is a small sign outside the studios
directing any tourists who might require souvenirs and other
memorabilia to this outlet. He had written a formal letter of
objection to the Council and this was contained in the agenda
papers at annex O page 32. In response to questions from Mr.
Roberts Mr. Buchanan stated that the studios objection was
made only partly on commercial grounds. The studio felt that
the presence of the stall and the people it was likely to attract
might influence artistes wishing to record there. Mr. Buchanan
considered Mr. Davies to be a competitor providing his
merchandise was “legitimate.” This statement was challenged
by Mr. Roberts who maintained that his client had never been
prosecuted for infringement of intellectual property. However,
the discussion was joined by Mr. Palmer who maintained that
there was no formal evidence that Mr. Davies had a license
from the manufacturers to market such items. At this point, Mr.
Barry Panto, solicitor to the Council, intervened to clarify the
position. He advised that the copyright was not challenged at
the last hearing, there had been no substantiated claims that
the merchandise had been illegal or of poor quality, neither
7
had there been any criminal or civil proceedings issued in
relation to the applicant’s right to market Beatles memorabilia.
In spite of this, Mr. Palmer continued to contest the validity of
the applicant’s right to sell such items. Mr. Panto advised both
sides that little could be achieved in terms of the application or
the objections by pursuing this issue and he strongly advised
both of them to abandon it. In response to further questions
from Mr. Palmer, Mr. Buchanan stated that the commercial
interest of the studio in marketing Beatles memorabilia was
very small. The Abbey Road café sold Abbey Road Studios
items plus licensed Beatles memorabilia, which is purchased
direct by the licensee.
3.19 Mr. Palmer introduced Mr. Timothy Burr of Parkgate Aspen
Property Management, managing agents for Abbey House. He
confirmed that he had written the letter of objection dated 16
January 2001, which appeared in the agenda papers at annex
H page 17 and that he stood by the comments he had made.
Photographs had been produced during February and March
by a lessee. He recalled the applicants previous operation
when he was trading illegally from 2 benches outside Neville
Court and he had found it necessary to walk in the road to get
past. Sometimes there were between 3 and 6 people around
the pitch and at other times there were more – between 10
and 12 people. It was difficult to pass by on the pavement at
these times. There were other schools in the area that had not
been mentioned including Arnold House, St. Edmonds and 1
other. Many children passed by during the afternoon after the
schools had closed for the day.
3.20 Mr. Burr had mentioned crowds exceeding 70 people in the
height of the summer. The main reasons for his objection
were:
- There was no need for a street trader in this
area
- Residents were entitled to the quiet enjoyment
of their homes
- This was a very dangerous area from a road
safety point of view, especially the exit from
Garden Road. Cars travelling in Abbey Road
often do so at speeds exceeding 60mph at
night and there have been many near misses.
3.21 In response to questions from Mr. Roberts, Mr. Burr confirmed
that it was not unusual for vehicles to travel along Abbey Road
at speeds exceeding 70mph. Parkgate-Aspen managed
property for nearly 1000 residents and, prior to submitting his
written objection, Mr. Burr had received written responses from
48 people objecting to the application. 150 lessees of Abbey
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House were canvassed for their views, which were given
verbally and by telephone as well as in writing. Mr Burr had
been aware that Mr. Davies had not traded for over 2 years
but he refuted Mr. Roberts contention that the loud music of
which he had complained did not come from the applicant’s
stall. Mr. Roberts asked whether the crowds of tourists ever
blocked the carriageway so that he had to walk past them. Mr.
Burr stated that it was the applicant’s stall that caused the
obstruction and that he had never personally been obstructed
by tourists. When asked to differentiate between the presence
of tourists in the street and the presence of the applicant’s
stall, Mr. Burr stated that the tourists “were always with us.” By
way of clarification, Mr. Palmer stated that there were 130 flats
in Abbey House and that letters had been sent to every one of
them. Mr. Burr had received 48 written responses and 6 verbal
ones, all objecting to the application. In response to a question
from Councillors asking why the residents did not object as a
group, Mr Burr stated that the residents preferred to liaise with
the managing agents. The letter from the agents followed a
previous letter, which sought to canvass support for Mr.
Davies.
3.22 Mr. Palmer stated that there were two more objectors in
attendance but he did not intend to call them and he went
straight into his closing summary during which the following
points were made:-
- The pitch will cause a hazard by forcing
pedestrians to walk in the road. The
fundamental issue was one of safety
- There is no power to prevent tourists from
visiting the studio or the zebra crossing
- Mr. Sproul’s finding concerning accidents and
the lack of obstruction to drivers was refuted.
- The numbers of tours increased in summer
- There was no evidence to suggest that traffic in
Abbey Road was slow moving although the
reverse was true
- This was a residential area rather than a
commercial one. Residents have chosen to live
here. They have not chosen to live near a
traders pitch.
- The coherence and consistency of the
objections was impressive
- The question of insurance raised by the
applicant was the wrong approach and was not
a proper response to the potential injury to a
child, or to anyone else.
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3.23 Prior to Mr. Roberts closing remarks, the Sub-Committee
RESOLVED: That, as the meeting had been sitting for more than 3 hours
and 15 minutes, the Sub-Committee should proceed until the business on the
agenda had been concluded.
3.24. Mr. Roberts then began his closing statement during which he
made the following points:-
- The applicant had traded illegally up until 1999
- He was not pursuing this to make money, he
was a “Beatles fanatic.”
- The applicant would be willing to accept a
restriction on permitted hours per day
- The applicant had not traded for two years.
- He wanted to be a legitimate trader
- This was a tourist area and the road was
frequently blocked by tourists.
- There had been no accidents involving tourists
during daylight hours
- It was hypothetical that the stall would create
such a significant danger that it shouldn’t be
allowed to proceed
- There would not be the same blockage of the
carriageway near the applicant'’ stall as there
was at present near the zebra crossing.
- Selective individuals were determined to
oppose the application.
- The breadth of consultation of the residents of
Abbey House was questionable.
- The Police did not object until January 2001.
There was no Police objection at the previous
hearing in December 2000.
- No residents association was present so it was
reasonable to assume that they had no
objections.
- There was no evidence that the stall would
provide a safety hazard involving either tourists
or traffic. Mr. Sproul’s report supports this view.
At 1300 hours, the Sub-Committee withdrew and re-convened at 14.33 hours
to announce the decision.
A specifying resolution was passed on 19 December 1994 restricting the
commodities that could be sold from Pitch 941 in Abbey Road, London, NW8
to newspapers. This hearing of the Sub-Committee was to consider the
possible variation of that resolution so as to allow a change in the
10
commodities sold from newspapers to Beatles Memorabilia. It arises because
of an application made by Mr Davies on 10 March 2000 to vary his street
trading licence. A change in the specifying resolution is a prerequisite to the
consideration of that application.
The Sub-Committee carefully considered the submissions made by and on
behalf of Mr Davies and all the representations made in response to the
consultation exercise carried out pursuant to Section 7 of the City of
Westminster Act 1999.
A number of letters of support were presented to the Sub-Committee in a
bundle of documents which were effectively supporting Mr Davies’ application
to change the specifying resolution. However, the Sub-Committee noted that
all of the representations in response to the consultation exercise carried out
by the Council were opposed to a change in the specifying resolution.
Concern was expressed about pedestrian and driver safety, obstruction of the
highway and the possible blocking of access for local residents. It was also
suggested that a souvenir stall would be unsightly and would encourage
littering and loitering. The Sub-Committee did have some reservations about
the response from Parkgate-Aspen, particularly with regard to the suggestion
that they were speaking on behalf of the Abbey House Residents’
Association.
A number of objectors pointed out that Beatles Memorabilia was already
available in the Abbey Road Café. In itself, that wasn’t considered to be
especially relevant to the determination of this matter. Of much greater
concern to the Sub-Committee were the other representations and, in
particular, the likely impact of a stall selling Beatles Memorabilia on the local
residents. There was also concern about the likely impact on pedestrian and
vehicular traffic. These concerns were especially relevant in an area which is
recognised as being primarily residential in nature.
The Sub-Committee concluded that the sale of newspapers did potentially
offer a useful local service which would not have an adverse impact on the
local residents and which would not pose any serious risk to pedestrians. A
change to Beatles Memorabilia was considered to be inappropriate having
regard to the nature of the area and the strong views expressed in all the
representations made in response to the consultation exercise.
The Sub-Committee was of the view that the proposed variation of the
specification resolution would only damage the amenity of the local residents,
and, in particular, the amenity of the Albany Court Residents. Of greater
concern was a real and genuine belief that the operation of a stall selling
Beatles memorabilia might result in a crowd of people gathering around the
stall at certain times of day, especially during the tourist season, which might
result in pedestrians having to walk into the carriageway. Evidence was
submitted which showed that groups of people do collect outside the Abbey
Road studios and it was considered that there was a real possibility that many
of these people would be attracted to a stall in close proximity to those
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studios, even if that stall was not presently considered to be part of the “tourist
route”.
The expert evidence submitted by Mr Sproul only related to pedestrian and
traffic activity between 11am and 12.30 pm on two days in March. It did not
specifically deal with the situation at other times of day and during the
summer months when tourist activity would be that much greater. Moreover, it
did not fully address the problems that might be caused as a direct result of
people congregating around the stall, thereby reducing the width of the
footway and adversely affecting the sight lines for vehicular traffic, particularly
traffic emerging from Garden Road.
Consequently, the Sub-Committee has RESOLVED not to vary the existing
specifying resolution.
4. TERMINATION OF MEETING
4.1 The meeting ended at 14.47 hours.
Signed………………………………………date………………………………..
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