Agenda item

In accordance with Section 51 of the Licensing Act 2003, the Council has received an application from the Environmental Protection Team, as a responsible authority, for a review of the existing premises licence in respect of Jollof Lounge, 44 High Street, Chatham. Kent ME4 4DS.

 

All responsible authorities have been consulted in line with the Licensing Act 2003.

 

Representations regarding the review application have also been received from Medway Council Planning, Gravesham and Medway Shared Licensing Services and members of the public.

Discussion:

 

The Chairman explained the process that the hearing would follow as outlined on page 4 of the agenda and noted that the applicant had received a copy of the “Guidelines for Licensing Review Hearing Panels”.

 

The Senior Licensing Officer stated that, in accordance with the Licensing Act 2003, the Council had received an application from the Environmental Protection Team, as a responsible authority, for a review of an existing Premises Licence in respect of Jollof Lounge, 44 High Street, Chatham, Kent ME4 4DS relating to the licensing objective of prevention of public nuisance.

 

Representations regarding the review application had also been received from Medway Council Planning Department, Gravesham and Medway Shared Licensing Services and members of the public.

 

The Senior Licensing Officer explained to the Panel, the relevant representations as stated in the agenda from Medway Council Planning Department, Gravesham and Medway Shared Licensing Services and from the Environmental Protection Team.  Representations had also been received from members of the public both in support of the review and in support of the Jollof Lounge, as well as a submission from Mr Atuanya, the Licensee.

 

The Chairman invited the Applicant, Responsible Authority and other interested parties who asked for the review to speak in support of their application. 

       

Fiona Wilson, an Environmental Protection Technician at Medway Council, explained her role which included investigating complaints of noise under statutory nuisance legislation.

 

Statutory nuisance could be defined as “an unlawful interference with a person's use or enjoyment of land or of some right over, or in connection, with it."  The process of determining what level of noise constituted a nuisance was subjective and several factors must be considered such as the frequency, duration, and time of the noise.

 

Fiona Wilson had been investigating complaints of loud music with heavy bass from the Jollof Lounge (also known as Lounge 44 or The Lounge) since October 2021.  Lounge 44 was advertised as a Restaurant Bar and Grill serving authentic Nigerian food, with a beer and shisha garden with a DJ every Friday and Saturday night.  The establishment was situated mid-terrace within a row of designated and professional business uses, and there were residential flats located above the shops.

 

Evidence of a Statutory Nuisance had been gathered which led to a formal notice being served on Mr Kingsley Atuanya.  The notice had been breached three times. The Council continued to receive complaints regarding the level of music and bass emanating from these premises.

 

Fiona Wilson outlined the steps that the Environmental Protection Team undertook which were set out in appendix F of the agenda. 

 

The Environmental Protection Team had contacted the Gravesham and Medway Shared Licensing Services in December 2021 to advise them that a Section 80 Noise Abatement Notice had been served to the premises and asked whether any Temporary Event Notices (TEN’s) had been submitted. 

 

The Licensing Team spoke to Mr Atuanya on 16 December 2021 and advised that if he wished to have entertainment past his operating hours he would be required to apply for a Temporary Events Notice.  An application was submitted by Mr Atuanya for an event on 26 December 2021, however this was rejected by the Kent Police Licensing Team.

 

Further complaints were received between January 2022 and March 2022 as set out in the agenda and were investigated by the Environmental Protection Team.  On 29 March 2022, Mr Atuanya was sent a warning letter from Fiona Wilson (FW-04 in the agenda) however he did not respond until 23 May 2022.  

 

Mr Atuanya formally applied, on 4 August 2022, to vary his licence to:  Thursdays 23:00 – 01:00, Fridays and Saturdays 23:00 – 02:00 and Sundays 23:00 - midnight and was given temporary approval by the Environmental Protection Development Team and Planning Department.  The recommendations within his recent noise impact assessment had included the desired measures for the provision of smoking areas and restrictions on the number of patrons allowed to leave to smoke, and suitable times at which to enforce the policy. They were satisfied that the noise impact assessment recommended as much as it could in which to limit the noise from the premises. It was the view of these departments that Mr Atuanya should be given the opportunity to implement the recommendations set out in his noise impact assessment and demonstrate that by doing so, he would not be causing a further nuisance.

 

Further complaints of noise and Noise App recordings were made by a complainant showing continued disturbance from loud music and in November 2022, Fiona Wilson informed Mr Atuanya of a second breach of the Section 80 Noise Abatement Notice.  The Licensing Team had also issued a warning to Mr Atuanya due to there being no door staff present on 12 November 2022.  Due to Mr Ayuanya being unavailable an interview was conducted on 20 December 2022.  Mr Atuanya submitted a prepared statement (FW-08, Appendix F in the agenda) and a transcript of the interview was included in the agenda (FW-09).   

 

Although Mr Atuanya maintained, throughout the investigations, that a sound limiter had been installed in his premises, dating back as far as October 2021, he admitted that the sound limiter had only been fitted two weeks prior to his interview in December 2022.   The noise impact assessment was based on the fact that the DJ music would only be in the basement and background music would be played in the restaurant area which was on the ground floor. 

 

Further complaints of noise were made throughout January 2023 and a third breach of the Section 80 Noise Abatement Notice was served. 

 

Four audio recordings from the Noise App were played, which were gathered during the investigations and the dates included 12 November 2022, 7 January 2023, 28 January 2023 and 26 February 2023.

 

Fiona Wilson explained that although Mr Atuanya had a noise impact assessment in place it did not prevent him from causing a statutory nuisance.  The noise impact assessment was carried out on the basis he would be operating from the basement of the premises which had not been refurbished, therefore, was not being used.

 

There had been ongoing compliance issues with the noise impact assessment which were not discharged until 24 March 2023.  Mr Atuanya continued to operate regulated entertainment even though Condition 8 on his premises license and Condition 2 of his licence variation had not been met.

 

Helen Buddin, the Responsible Authority, gave evidence (appendix D of the agenda) and confirmed that a premises licence was granted to Nsibidi Limited in August 2020.  A written warning had been given to Mr Atuanya in November 2022 following confirmation that there were no door supervisors in attendance.  In March 2023 a Licensing Officer along with an Officer from Kent Police Licensing Team attended the premises and found only one door supervisor on duty at that time.  The Premises License stated that on Friday and Saturday nights there would be a minimum of 2 door supervisors on duty.   They were told that one of the door supervisors had been delayed in starting work that evening and was on route. This failed to comply with Condition 18 attached to the Premises Licence and had happened on two separate occasions.

 

Following a question from the Panel, Fiona Wilson explained that the intention in the original licence was to use the basement all the time for music.

 

 

Fiona Wilson then read out a witness statement from Mr Dumidru who lives in a neighbouring property. 

 

The constant noise from The Lounge was ruining his and his family’s life.  The noise levels were consistently high, making it impossible to relax and enjoy their own home.  The noise often carries late into the night, leaving them feeling fatigued and irritable.  The anxiety and stress caused by the constant noise levels were taking a toll on his mental health.  Maintaining a healthy work-life balance was difficult when his home life was being disrupted by The Lounge’s noise.   As a family, they were experiencing sleep deprivation, negatively impacting their health and quality of life.  The constant noise was causing stress and anxiety for all of them.  Although The Lounge had a license to operate, they had breached that license by staying open beyond their agreed hours, causing significant disturbance to the residents in the area.  He asked the Panel to consider reducing The Lounge’s operating hours to more sociable times so as not to cause a disturbance to the residents.

 

Mr Dumidru confirmed that he had one child who was a very light sleeper and got disturbed regularly due to the noise especially on Friday and Saturday nights.

 

The Chairman asked the representative for the Licence Holder to respond.

 

Mr Graham Hopkins, GC Licensing Consultancy, the Licensee’s representative confirmed that Mr Atuanya was in the process of selling his restaurant and the sale to a new operator, JMLL Resources, would be completed this coming weekend.   GC Licensing Consultancy had been asked to transfer the current premises licence to the new operator once the sale was complete.  JMLL Resources were planning on operating the premises as a restaurant and would complete the refurbishment of the basement and would take all measures to mitigate the noise impact assessment.  JMLL Resources wished to retain the existing hours as a restaurant for Afro Caribbean clients. 

 

Mr Hopkins explained that JMLL Resources came with a clear record and should not be blamed for what had happened in the past.  They wished to run the restaurant successfully and be an asset to the local area.  The new operators would accept any revised conditions that the Panel made.  Regulated entertainment would only take place in the basement area and background music would be played after 23:00. The noise limiter would be installed in the basement in conjunction with the Environmental Protection Team.

 

He stated that his client, Mr Atuanya, was remorseful for his short comings in the past.  He had taken over the premises in June 2020 during a very difficult period, Covid and then the restrictions of lock down and afterwards the impact of the cost of living crisis.  Mr Atuanya suffered periods of poor mental health, was unable to work full time and this was his only source of income for his family.

 

The current issues with Jollof Lounge were confirmed as being music related noise.  The use of the garden stopped at 22:00 and any excess noise levels from smokers or those leaving could be dealt with through a dispersal notice. 

 

Mr Hopkins confirmed that Afro Caribbean music used a lot of bass and Mr Atuanya regularly checked the decibel levels on an app on his phone.  He confirmed that there was a supporter of the Jollof Lounge and he lived on the third floor, had three children and never complained about the noise and only one resident, Mr Dumidru, complained of any noise.

 

Mr Hopkins confirmed that this was the first time he had seen the noise impact assessment and he considered that the condition regarding the sound limiter could have been included in the premises licence.  He said that the audio recordings could not be heard clearly at all.  He stated that the noise limiter would be installed in the basement and the DJ’s would play their music through it.  He said that any complaints that were received between March 2022 and September 2022, did not relate to the Jollof Lounge as no music was being played at that time. There were premises in close proximity which had late licences and anyone that lived in a town centre next to a restaurant had to accept there would be noise disturbances.

 

He went on to explain a previous question about a door supervisor and he apologised on behalf of the Licensee that the second door supervisor was not in place when Helen Buddin and Kent Police Licensing Team attended but the door supervisor had been running late and Mr Atuanya should have asked someone else to cover but did not.  The second door supervisor did appear later in his shift. 

 

Mr Hopkins suggested that a restaurant with a capacity of 35 people on the ground floor and 20 in the basement seemed disproportionate to state two door supervisors should be in attendance on Friday and Saturday nights.  In London premises, it was common that there should be 1 door supervisor to 75 occupants.

 

Mr Hopkins briefly referred to an additional allegation that was made, as set out in the supplementary agenda, and stated they would refer the matter back to the Police.  He said that any report of racism was not acceptable in this country. 

 

With Mr Atuanya stepping back from Jollof Lounge, the new premises could become successful with no noisy music being played, with any added conditions to the license which would allow them to the retain the longer hours.   Afro Caribbean people do go out to socialise later and stay out later.  The new operators would address any issues and had confirmed that the garden would be closed at 22:00 hours.   

 

The Chairman asked the applicant and other parties if they had any questions for the Licence Holder.

 

Stuart Steed, Strategic Environmental Protection Officer asked as Mr Hopkins had mentioned the noise recordings, on what basis would he give that judgement.  Mr Hopkins explained he was previously a Licensee and also an Enforcement Officer as part of a Licensing Team.  Stuart Steed explained that nuisance enforcement sat within the Environmental Protection Team rather than the Licensing Team.  Mr Hopkins acknowledged that the four recordings that had been played were very low in volume and you couldn’t really hear anything specific.  Fiona Wilson explained that the recording was produced by a mobile app so would not produce the same sound as if you were in the room and confirmed that Officers had been in the same room when some of the app recordings had been produced. 

 

Mr Atuanya confirmed that the Planning Authority had sent him a set frequency of decibels which were acceptable and he had checked the noise against that.   Stuart Steed asked whether his mobile phone gave a frequency analysis and Mr Atuanya confirmed it did.  Stuart Steed suggested that was very unusual for a mobile phone to produce a frequency analysis as they were not that sensitive.

 

The Chairman asked the Panel if they had any questions:

 

Mr Atuanya was asked to name the four licensing objectives; he was able to answer three out of the four.  One of the Panel Member informed Mr Atuanya that the one he missed was the prevention of crime and disorder. 

 

A Panel Member asked about the planning application that had been approved for the variation of Condition 2 (hours of opening) and was only granted for one year which would expire in July 2023.  Mr Hopkins requested that as Mr Atuanya would no longer be the Licence Holder from Sunday 30 April 2023 that the Panel retain the current hours for the new operator.

 

Mr Hopkins confirmed that the new Licensee would install more layers of sound proofing in the basement and background music would only be played in the restaurant.

 

Mr Atuanya explained that the restaurant would be situated on the ground floor with background music and DJ’s would play in the basement, once refurbished.  Food would be available on both floors as both floors would have tables and chairs.  

 

Mr Jermide, a supporter of the Jollof Lounge, mentioned an incident which had taken place on 12 November 2022, where he was at the restaurant and was out in the garden.  He certified the sound levels using his phone and considered people were just out in the garden talking.  

 

The Chairman asked now many people were permitted in the garden, Mr Atuanya explained it was predominantly a smoking area that could accommodate up to 10 people and the garden area shut at 22:00 hours.

 

The Chairman asked Mr Dumidru whether he was able to use the garden area, Mr Dumidru explained that they did not use it often, however the noise from the Jollof Lounge went directly into his living area especially if the windows were open.  He said there was strong evidence that the garden remained open until midnight on some evenings.

 

The Chairman asked Mr Hopkins if there was anything else he wished to say. Mr Hopkins urged the Panel to be mindful of the new operator and stated live music would be regulated after 23:00, and played in the basement only, if any condition was imposed.

 

Fiona Wilson explained she was not aware, until the hearing, that the premises would be sold.  She urged the Panel to reduce the operating hours.

 

The Chairman asked all parties to leave the room while the Panel considered its decision.

 

Decision:

 

The Panel, having considered all the written and oral evidence presented at the hearing, considered the licensing objectives in respect of the prevention of public nuisance, had over a significant period of time, been breached.

 

The Panel unanimously decided to vary the Premises Licence for Jollof Lounge, 44 High Street, Chatham, Kent ME4 4DS in line with the previous hours in the license and as requested in the review by Environmental Protection which were: 

 

Sale of retail of alcohol Monday to Sunday 11:00 to 23:30

Late night refreshment Monday to Sunday 23:00 to 23:30

Recorded music Monday to Sunday 23:00 to 23:30

 

The Panel understood and was informed that there would be a possible transfer of these premises to a new owner, however the Panel could only deal with the application as submitted.  What happened in due course would be an issue for the new owners.