High Court Dismisses Review Decision
Aksu and Yazgan v London Borough of Enfield, Administrative Court, 17th January 2013
A High Court Judge today held that it is not necessary upon a review to prove that the licence was breached.
Mrs. Nuran Aksu and Mr. Murat Yazgan were the licensees of the Kervan Banqueting Hall in Edmonton. A review was brought by trading standards, supported by planning and police, alleging breaches of condition and consequent harm to the licensing objectives.
The London Borough of Enfield decided to revoke the licence, but on appeal the Justices substituted a decision that Mr. Yazgan be removed as designated premises supervisor. The licensees appealed by way of case stated to the High Court, claiming that the Justices had been wrong to find (or, in the case of the sale of alcohol, had not in fact found) that the licence had been breached. They did not allege that the conditions had been complied with. Rather, their case was that the way the premises operated did not amount to the provision of licensable activities.
In particular, they claimed that the “dry hire” of a function room with a dance floor did not amount to the provision of regulated entertainment, and that as a matter of fact there had been no sale of alcohol – at most there had been an offer of sale.
In deciding whether alcohol had been sold, Edwards-Stuart J held that it would have been a fair inference that alcohol had been sold from answers given by a member of staff, and the presence of a menu and alcohol on the premises. However, he accepted the Respondent Council’s submissions that on an appeal against a review decision the justices can take any steps they consider appropriate, and that the offer of sale in circumstances in which the sale would have been a breach justified the sanction they applied.
As to whether regulated entertainment had been supplied, Edwards-Stuart J held that it had not because although Mr. Yazgan was managing the premises, he was not managing the dancing so as fall within Schedule 1 paragraph 1(4)()a)(ii) of the Act (since repealed). Notwithstanding that, however, the decision the justices arrived at was one they were fully entitled to reach.
The Learned Judge also rejected a submission that when a charge is paid by an intermediary (such as a caterer), that is not a charge for the purposes of Schedule 1 paragraph 4. It is not therefore open to a licensee to claim that a dry hire is not a licensable activity by hiring through an intermediary rather than to the ultimate host direct.
The appeal was therefore dismissed and the Appellants were ordered to pay the London Borough of Enfield costs in the sum of £10,275.
Philip Kolvin QC of Cornerstone Barristers was instructed by Catriona McFarlane of the London Borough of Enfield