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26 April 2001

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26 April 2001 Powered By Docstoc
					                         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


                              2
      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


                              3
       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


                                      5
       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


                              6
       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


                               8
       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.




                               9
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



                                        11
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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