England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17 January 2013

1. MR JUSTICE EDWARDS-STUART: This is an appeal by way of case stated from a decision of the Enfield Magistrates' Court made on 6 December 2011 when it allowed an appeal from a decision by a licensing subcommittee of the London Borough of Enfield to revoke the premises licence of the Kervan Banqueting Hall in Fore Street, Edmonton, which is owned and managed by the appellants. I will refer to it as "the Banqueting Hall".
2. Under the Licensing Act 2003 the retail sale of alcohol and the provision of regulated entertainment are licensable activities which for present purposes may only be carried out under and in accordance with a premises licence. The Banqueting Hall has a premises licence and with effect from 1 June 2011 the licence holders were Mrs Aksu, the first appellant, and Mr Yazgan, the second appellant. In August 2011, according to the evidence before the magistrates, Mr Yazgan also became the designated premises supervisor. Under the Act certain people with a legitimate interest are entitled to apply to the Council for a review of any premises licence.
3. In this case, on 25 March 2011, the Trading Standards service of the Council applied to review the Banqueting Hall's premises licence on the grounds that there had been a number of breaches of the conditions attached to it when licensable activities were being carried out. The application was heard at a meeting of the licensing subcommittee on 1 June 2011.
4. Unfortunately, Mrs Aksu was ill at the time and so those who attended the hearing on her behalf, which included a representative called Mr Alan Aylott, whose status is somewhat unclear, a representative from her licensing agent and Mr Yazgan, requested an adjournment on the ground that Mrs Aksu wished to be present at the hearing but was unable to be present because she was ill. This was opposed by the Trading Standards officer, the Council's head of development management and the police. Since the application for review was being made on grounds of public safety as well as public nuisance the subcommittee decided to refuse the adjournment. The representatives of Mrs Aksu were given an opportunity to consider their position but having taken instructions from Mrs Aksu's solicitors they told the subcommittee that they had been told to withdraw from the hearing.
5. The hearing proceeded in their absence and the subcommittee heard evidence to the effect that 16 conditions of the premises licence had been breached up to seven times over a 3 month period, making a total of 49 breaches. The subcommittee was told that on several occasions advice and guidance had been offered to the representatives of the Banqueting Hall but these had had little effect. A breach of particular concern was the fact that although one of the conditions of the licence stipulated a maximum capacity of 400 customers, on two occasions there had been about 800 customers on the premises. The Banqueting Hall's website advertised it as a venue suitable for 650 to 800 people.
6. The outcome was that the subcommittee decided to revoke the licence, a step that it was entitled to take under the Act. In fact, it was not necessary for the subcommittee to reach a conclusion as to whether or not there had been a breach of the premises licence on every occasion alleged, or indeed at all, because section 52(3) of the Act provides that:

i. "The authority must, having regard to the application and any relevant representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives."

7. The licensing objectives are set out in section 4 of the Act and are well known. However, for good measure I will set them out. They are (a) the prevention of crime and disorder; (b) public safety; (c) the prevention of public nuisance; and (d) the protection of children from harm.
8. The appellants were aggrieved by the decision, and on 21 June 2011 their solicitors gave notice that they wished to appeal the decision. An appeal from such a decision lies to the Magistrates' Court. The appeal was heard on 6 December 2011. The magistrates heard evidence from Mr Yazgan on behalf of the appellants and from various officers of the Council and a representative of the police.
9. The magistrates found that during the period covered by the proceedings at least two licensable activities under the Act had occurred. The first was the hire of the Banqueting Hall with the facility of a dance floor, whether portable or fixed; the second was the fact that alcohol was available for sale and advertised as such on a menu. Accordingly, the court found that such activities had to be carried out under the terms of a premises licence. Although there was no appeal against the refusal of the adjournment by the licensing subcommittee, the court found that the refusal was reasonable.
10. The court decided to allow the appeal and, as it was entitled to do by section 181 of the 2003 Act, substituted its own decision for that of the licensing subcommittee. It did not revoke the licence but it ordered that Mr Yazgan be removed from the premises licence as the designated premises supervisor with immediate effect. When substituting its own decision for that of a licensing committee the court is entitled to substitute for the decision appealed against any other decision which could have been made by the licensing subcommittee, and one such step is the removal of the designated premises supervisor. Where a premises licence authorises the sale of alcohol, as this one does, there has to be a designated premises supervisor.
11. This appeal is, as I have said, against the decision of the Magistrates' Court. The questions stated by the magistrates for the guidance of the High Court are as follows:

i. "1. Was it open to us, at law, to conclude, on this review appeal, on the evidence before us and taking into account the section 182 guidance at paragraph 3.18, that the appellants were using these premises for 'the provision of regulated entertainment' as defined by schedule 1 Part 1 of the 2003 Act, or that alcohol was sold by them, or on their behalf in the cafeteria, or in the Banqueting Hall?

ii. 2. Were we entitled to find, on the evidence before us that the Licensing Sub-Committee had given consideration to the relevant parts of the S.182 guidance and the Licensing Policy in reaching their decision?

iii. 3. In reaching our decision to substitute the Licensing Sub-Committee's decision, did we attach appropriate weight to their decision, the s.182 guidance and the Local Authority's Statement of Licensing Policy?"

12. In the case of Hope and Glory Public House Ltd, R (on the application of) v City of Westminster Magistrates Court & Ors [2011] EWCA Civ 31, the Court of Appeal considered the question about how a magistrate's court hearing an appeal on the decision of a licensing authority should approach the decision. The court approved the conclusions of Burton J at first instance, where he said:

i. "43. I conclude that the words of Lord Goddard approved by Edmund Davies LJ are very carefully chosen. What the appellate court will have to do is to be satisfied that the judgment below 'is wrong', that is to reach its conclusion on the basis of the evidence before it and then to conclude that the judgment below is wrong, even if it was not wrong at the time. That is what this District Judge was prepared to do by allowing fresh evidence in, on both sides.

ii. 44. The onus still remains on the claimant, hence the correct decision that the claimant should start, one that cannot be challenged as I have indicated.

iii. 45. At the end of the day, the decision before the District Judge is whether the decision of the Licensing Committee is wrong. Mr Glen has submitted that the word 'wrong' is difficult to understand or, at any rate, insufficiently clarified. What does it mean? It is plainly not 'Wednesbury unreasonable' because this is not a question of judicial review. It means that the task for the District Judge - having heard the evidence which is now before him, and specifically addressing the decision of the court below - is to give a decision whether, because he disagrees with the decision below in the light of the evidence before him, it is therefore wrong."

13. This appeal really raises two quite separate questions. The first is essentially a question of law and how it applies to the facts. The second is exclusively a question of fact. The first question is whether the hire of the Banqueting Hall with a dance floor for private functions is a potentially licensable activity and, if so, whether in the circumstances that existed at the Banqueting Hall on the various occasions it was in fact a licensable activity. The second question relates to whether alcohol was being sold at the Banqueting Hall.
14. I must now turn to the provisions of the Act. The provisions which are relevant are those set out in Schedule 1 which deals with the provision of regulated entertainment. Paragraph 1:

i. "(1)For the purposes of this Act the 'provision of regulated entertainment' means the provision of—

ii. (a)entertainment of a description falling within paragraph 2, or

iii. (b)entertainment facilities falling within paragraph 3,

iv. where the conditions in sub-paragraphs (2) and (3) are satisfied

v. (2)The first condition is that the entertainment is, or entertainment facilities are, provided—

vi. (a)to any extent for members of the public or a section of the public,

vii. (b)exclusively for members of a club...

viii. (c)in any case not falling within paragraph (a) or (b), for consideration and with a view to profit.

ix. (3)The second condition is that the premises on which the entertainment is, or entertainment facilities are, provided are made available for the purpose, or for purposes which include the purpose, of enabling the entertainment concerned (whether of a description falling within paragraph 2(1) or paragraph 3(2)) to take place.

x. To the extent that the provision of entertainment facilities consists of making premises available, the premises are to be regarded for the purposes of this sub-paragraph as premises 'on which' entertainment facilities are provided.

xi. (4)For the purposes of sub-paragraph (2)(c), entertainment is, or entertainment facilities are, to be regarded as provided for consideration only if any charge—

xii. (a)is made by or on behalf of—

xiii. (i)any person concerned in the organisation or management of that entertainment, or

xiv. (ii)any person concerned in the organisation or management of those facilities who is also concerned in the organisation or management of the entertainment within paragraph 3(2) in which those facilities enable persons to take part, and

xv. (b)is paid by or on behalf of some or all of the persons for whom that entertainment is, or those facilities are, provided..."

15. Paragraph 2, which is headed "Entertainment", is as follows:

i. "(1)The descriptions of entertainment are—

ii. (a)a performance of a play,

iii. (b)an exhibition of a film...

iv. ...

v. (g) a performance of dance

vi. ...

vii. where the entertainment takes place in the presence of an audience and is provided for the purpose, or for purposes which include the purpose, of entertaining that audience..."

16. Paragraph 3, under the heading "Entertainment Facilities" is as follows:

i. "(1)In this Schedule, 'entertainment facilities' means facilities for enabling persons to take part in entertainment of a description falling within sub-paragraph (2) for the purpose, or for purposes which include the purpose, of being entertained.

ii. (2)The descriptions of entertainment are—

iii. (a)making music,

iv. (b)dancing..."

17. It can be seen at once that these paragraphs distinguish between "entertainment", which is defined in paragraph 2, and "entertainment facilities", which are defined in paragraph 3. In order to fall within the Act, entertainment facilities must be provided subject to two conditions. The first, in the context of this appeal, is that they are provided "for consideration and with a view to profit". If that condition is not satisfied then the provision of the facilities is not a licensable activity. In the present case, if what was provided constituted "entertainment facilities" then, in my view, it is clear that they were provided for consideration with a view to profit because the nature of the Banqueting Hall's business was that of being hired out for profit.
18. However, in the light of the submissions of Mr Juan Lopez, who appeared for the appellants I must deal with that matter in a little more detail. He submitted that there was no charge within the meaning of paragraph 1(4) because there was no evidence that any charge was paid by or on behalf of some or all of the persons for whom the facilities were provided. He submits that it is possible, indeed likely, that there were intermediaries retained by the ultimate client, such as caterers, who would have arranged all aspects of the function, including the payment of the fee to the Banqueting Hall. Accordingly, he submits, there being no evidence about it one way or the other, it cannot be said that the person for whom the facilities were being provided was paying the charge.
19. With all respect to Mr Lopez, I regard this is a specious argument. There is no dispute that the Banqueting Hall was hired out for profit. There can therefore be no dispute that the appellants made a charge for its hire and that the charge was paid. It seems to me quite irrelevant whether the charge was paid direct by the client or was simply included in the fee charged to the client by an intermediary so that the intermediary paid the charge to the appellants. In the latter case the charge would clearly have been paid "on behalf of" the ultimate client for whose benefit the facilities were being provided.
20. By paragraph 3, entertainment facilities means facilities for enabling persons to take part in entertainment of a description falling within subparagraph (2), which includes dancing. This would suggest that a dance floor falls within the definition of "entertainment facilities", and the last sentence of subparagraph 1(3), which I have already read out, suggests that it does not matter whether the dance floor is fixed and part of the premises or is a removable structure. So far the provisions seem fairly straightforward. Whilst I am not sure that Mr Lopez actually conceded their effect as I have just summarised them, he sensibly did not advance any argument to the contrary.
21. The second condition is that the entertainment facilities provided are made available for the purpose of enabling the entertainment concerned to take place. This condition is clearly satisfied by the provision of a dance floor because that enables the entertainment of dancing to take place. The difficulty for the purposes of this case is presented by paragraph 1(4). Entertainment facilities are to be regarded as provided for consideration only if any charge is made by any person concerned in the organisation or management of those facilities who is also concerned in the organisation or management of the entertainment within paragraph 3(2) -- in this case that is dancing -- and is paid by some or all of the persons for whom the facilities are provided. I have already dealt with the last provision of that paragraph.
22. Mr Lopez did not accept that the appellants were concerned in either the organisation or management of the entertainment facility, namely the dance floor, or in the entertainment that the dance floor enabled to happen, namely the dancing.
23. So far as the first limb is concerned I regard Mr Lopez's submission as hopeless. Indeed, in fairness to him, he did not pursue it with very much enthusiasm. The evidence shows that Mr Yazgan acted as the manager of the premises. He introduced himself as such on at least one occasion when the premises were visited. In my view, the magistrates were fully entitled to find that he acted as the manager at all material times. As the manager, he would have been the person responsible for the management of the premises, including its fixtures and fittings. For example, as I suggested in argument, if there was a hole in the floor of the Banqueting Hall or in the dance floor, it would have been Mr Yazgan's responsibility to have it fixed.
24. I pause at this point to consider the Home Office guidance issued in October 2010 under section 182 of the 2003 Act. Under the heading "Entertainment Facilities" it says this:

i. "3.10 Subject to the conditions, definitions and the

ii. exemptions in Schedule 1, entertainment

iii. facilities means facilities for enabling persons

iv. to take part in entertainment consisting of:

making music;

dancing;

entertainment of a similar description to

i. making music or for dancing.

ii. 3.11 These facilities must be provided for the use of and to entertain customers. Entertainment

iii. facilities include, for example:

a karaoke machine provided for the use of

i. and entertainment of customers in a public

ii. house;

a dance floor provided for use by the public

i. in a nightclub;

musical instruments made available for use

i. by the public to entertain others at licensed

ii. premises.

iii. 3.12 In carrying out their functions, licensing

iv. authorities will need to consider whether an

v. activity constitutes the provision of regulated

vi. entertainment. The following activities, for

vii. example, are not regulated entertainment:

education – teaching students to perform

i. music or to dance..."

25. Then, under the heading "Private Events", paragraph 3.16 reads as follows:

i. "3.16 Entertainment at a private event to which the public are not admitted becomes regulated entertainment and therefore licensable, only if it is provided for consideration and with a view to profit. So, for instance, a charge made to people attending a private event to cover the costs of the entertainment, and for no other purpose, would not make the entertainment licensable. The fact that a profit might inadvertently be made would be irrelevant as long as there had not been an intention to make a profit.

ii. 3.17 Schedule 1 to the 2003 Act also makes it clear that before entertainment or entertainment facilities are regarded as being provided for consideration, a charge has to be made by, or on behalf of, a person concerned with:

the organisation or management of the entertainment; or

the organisation or management of the facilities who is also concerned with the entertainment;

i. and paid by or on behalf of some or all of the persons for whom the entertainment/facilities are, provided.

ii. 3.18 This means that a private event for invited guests held in a hired private room with a live band and dancing and no charge for admission intended to make a profit is not a regulated entertainment unless the person who hires out the room (for example, the owner of the house in which the room is situated) is also involved in the organisation or management of the entertainment. An owner may become so involved by, for example, hiring a dancefloor, sound equipment and/or smoke machine along with the room, or by arranging for a DJ or band to play at the event. In this case, the provision by the owner of the room (and any other entertainment facilities they provide) for a charge and with a view to profit will itself be a provision of regulated entertainment. By contrast, if the owner simply hires out the room for an event and is not further involved with the entertainment at the event, they will not be providing a regulated entertainment, and the event would need to be looked at separately from the hire of the room in order to determine whether it was itself an instance of regulated entertainment."

26. I regard the first sentence of paragraph 3.18 that I have just read as problematic. What it appears to say is that where there is a private event held in a hired private room with a live band and dancing and where there is no charge for admission intended to make a profit the activity will not be regulated entertainment "unless the person who hires out the room (for example the owner of the house in which the room is situated) is also involved in the organisation or management of the entertainment". I am unable to reconcile this with paragraph 1 of Schedule 1 of the Act because the first conditions], the imposition of a charge for a profit, is wholly absent. If the entertainment facilities in question are not provided for a charge that is levied with a view to profit, the provision of those facilities is not a licensable activity irrespective of whether or not the hirer of the room is also involved in the organisation or management of the entertainment. So in this respect it seems to me that the first sentence of paragraph 3.18 of the guidance is not correct. I did not understand either counsel before me to dispute this.
27. However, if instead of the words "no charge for admission intended to make a profit" the paragraph had had the words "where there is a charge for the admission intended to make a profit", the paragraph would be correct. This is because by paragraph 1(4) in order to make the provision of the entertainment facilities a licensable activity the hirer of the entertainment facilities in question being the person imposing the charge must be concerned not only in the organisation or management of the entertainment facilities in question but also concerned with the organisation or management of the entertainment that is enabled to take place by means of the provision of those entertainment facilities.
28. Unfortunately, I consider that the following sentence of the same paragraph also contains an error. I do not agree that an owner of the premises would become involved in the organisation of management of the entertainment by, for example, hiring a dance floor or sound equipment. That would make the owner involved in the organisation or management of the entertainment facility but not of the entertainment itself.
29. Turning to the present case, it is clear, as I have already concluded, that the Banqueting Hall was hired out for profit. It is clear also that is was hired out with a dance floor, and I agree with the magistrates that the dance floor was an entertainment facility within the meaning of the Act. The second condition in paragraph 1 of the Schedule to the Act is then satisfied if the dance floor is used for dancing. The evidence shows that in some of the events it was so used. This then leaves the question of whether the requirements of paragraphs 1(4) were satisfied. As I have said, it seems to me that the appellants, Mr Yazgan in particular, were persons who where concerned in the organisation or management of the entertainment facility in question, in this case the dance floor. However, the question raised by paragraph 1(4) is whether Mr Yazgan was also concerned with the organisation or management of the entertainment that was enabled to take place by virtue of the provision of the dance floor.
30. At the conclusion of the hearing on 6 December 2011, the magistrates retired and then produced a short typewritten decision. For present purposes, the relevant paragraphs of that decision are paragraphs 2 and 3. They were in the following terms:

i. "2. We are satisfied that during the period covered by these proceedings at least two licensable activities under the 2003 Licensing Act occurred. We find that the hire of a room with the facility of a dance floor, as advertised, whether that floor is portable or fixed, and with a view to profit, is a licensable activity. We also find that during the period alcohol was available for sale and advertised as such on a menu. This is attested to by two officers of the Local Authority and on separate occasions. The offer for sale of alcohol is a licensable activity. There being licensable activities a premises licence under the 2003 Licensing Act is required.

ii. We have also considered that at some time during the period there was a sound system on the premises. However, we are not convinced that this necessarily formed part of a licensable activity.

iii. 3. Turning to the management of the premises we find that during the period the standard of management fell far below that which a responsible owner should have maintained. Mr Yazgan and Mrs Aksu may have relied on advice which we have now deemed to be wrong, as to what was and what was not a licensable activity. Nevertheless the poor standard of management is of concern.

iv. We have decided to substitute the committee's decision as follows:

1. The existing licence to continue with all the existing conditions which must be complied with in all respects.

2. That Mr Yazgan be removed from the premises licence as the Designated Premises Supervisor forthwith.

3. In coming to our decisions we find that had the Licensing Sub-Committee on 1st June 2001 been in possession of all the arguments laid before us, including the evidence of Mr Yazgan they may well have, on balance, reached a different decision from that which they made."

31. I now need to turn to the case stated by the magistrates. The grounds of appeal put forward by the appellants at that hearing were summarised by the magistrates in the following terms:

i. "1. The activities observed at the Kervan Banqueting Hall were not licensable activities under the Licensing Act 2003: there was therefore no breach of the premises licence.

ii. 2. The Licensing Sub-Committee had misdirected itself by failing to have regard to the Council's Statement of Licensing Policy and the s182 Guidance when they reviewed the licence on the 1st June.

4. The absence of direct reference to the Council's Statement of Licensing Policy and section 182 Guidance in the issued decision to the applicant established that the Licensing Sub-Committee had failed to have regard to these, which was a fatal flaw."

32. The magistrates then summarised the respondent's case in the following terms:

i. "1. The premises were being used by the Appellants for the provision of regulated entertainment at the times of the alleged breach of licence conditions and therefore that the premises could only lawfully operate under the terms of the premises' licence.

ii. 2. Alcohol was being sold on at least one occasion at the premises.

iii. 3. The Licensing Sub-Committee had followed the correct procedure and had referred themselves to the s182 guidance."

33. The magistrates then went on to summarise the evidence that they had heard. In order to put their conclusions in context, it is unfortunately necessary to refer to this in some detail. The first witness was Mr Yazgan. As I have indicated, he gave evidence that prior to 1 June he was the head of security at the premises. From that date he became the premises licence holder jointly with Mrs Aksu. He became the designated premises supervisor in August 2011. He said that he attended the Council's hearing on 1 June but left with Mrs Aksu's advisors after an adjournment was refused. He gave evidence that the premises were used and had been used by individuals for private events to which the public are not admitted. No charge was made for the cost of entertainment or for any facilities and no-one in the management of the premises became involved in the organisation or management of the entertainment, food, sale or supply of alcohol or the hiring of sound equipment. He then went on to state that:

i. "Mrs Aksu, due to ill health, had not had any day to day management in the premises since March 2011. He accepted that the website advertising the premises did show a dance floor and speakers but stated the speakers were no longer there and had not been connected to any sound system. He stated that the premises had previously applied for Temporary Events Notices and held events under these authorisations. The events on 22nd February 2011, 12th March 2011 and March 2011 which were referred to in the Council's hearing on 1st June 2011 were all private events and the breaches of the licence that had been alleged were not valid as they were not operating under the licence on those occasions. He also stated by that the menu referred to by the Council, which offered alcohol for sale, was a very old menu."

34. Ellie Green gave evidence. She was the Principle Trading Standards Officer for the council. She gave evidence that the application to review the Premises Licence was made due to public safely concerns and following alleged breaches of licence conditions designed to control the number of customers permitted on the premises, to prevent noise from the premises and to prevent customers leaving the premises unreasonably disturbing local residents. They had also failed to produce an adequate scheme of noise attenuation works. On 22 February 2001 a licensing inspection took place and 14 breaches of the conditions were found. On 12 March 2011 a visit was made to the premises at 6.45 pm where a function was taking place with in excess of 600 people inside. 12 breaches of licence conditions were found. On 21 March 2011 a further eight breaches were found. Mr Yazgan had introduced himself as the manager of the premises and head of security.
35. A Temporary Event Notice was in place though on 10 September 2011, which meant that the Banqueting Hall should have been operating in accordance with the premises licence. All licensable activities should have finished by 11.00 pm. However, the event finished at 11.30 pm and the patrons left by midnight. Between 21 October and 5 November 2011 there were four further inspections. In total there were over 30 breaches seen at the premises which involved 13 separate licence conditions. On 7 November she had printed pages from the Banqueting Hall website that advertises a "purpose built stage and spacious dance floor". Pictures showed a wooden dance floor where no tables and chairs were set up. It showed speakers attached to the walls and a stage set up which had speakers on show. Bottles of wine are shown on the tables. She concluded from this that facilities were being made available for dancing, live music and alcohol. Ms Green stated that she had not witnessed any sale or supply of alcohol nor had any till rolls or proof of sales. A little later Ms Green stated that she believed that hiring out the dance floor in a room was part of the facilities.
36. A Police Constable Fisher gave evidence that he visited the premises on 1 December 2011 where he spoke to Mr Yazgan and watched recorded CCTV tapes. The recording for 18 November showed dancing taking place in the main hall over a period of at least one and a half hours. He also saw CCTV footage from 28 November 2011 showed over 50 people dancing in the main dance hall. He did not see any evidence of the sale of alcohol on 28 November 2011.
37. A Mr Tom Howarth, Licensing Enforcement Officer for the Borough, gave evidence that he visited the premises on 5 November 2011 with a colleague. He said that the officers were met by Mr Yazgan who stated that there was a wedding party in the main hall and an engagement party in the small hall. The main hall was hired to the bride and groom with their own caterers, entertainment, music and alcohol. Mr Yazgan did not know the name of the caterers and was just responsible for looking after the premises and security. Mr Aksu, the husband of Mrs Aksu, arrived and initially refused Mr Howarth access to the main and the small halls as he felt it would caused embarrassment for him having council officers in the building. Eventually they agreed access but only to an upstairs room. Then Mr Howarth said that he saw CCTV that showed people dancing and was quite clear that music was being played in the main hall. It was quite full with between 400 and 600 people. He said also that Mr Yazgan had said that there was one bottle of wine per table paid for by the wedding party.
38. Later in his evidence Mr Howarth said that the officers were refused entry to the cafeteria four times before being allowed entry later on. There were two members of staff operating the cafeteria. The officers found no alcohol in the cafeteria, however there was a menu on the counter which showed beer, wines and spirts as being available. Mr Howarth was told this was an old menu. He informed Mr Yazgan that this represented an offer to supply alcohol and that it must be removed in order to comply with the premises licence. He then confirmed that he did not see an actual sale or supply of alcohol.
39. A Mr Charles Le Besque, a Principle Environmental Health Officer for the Council, visited the premises on 22 October with a colleague. That is therefore before the visit I have just described of Mr Howarth. He said that he and his colleague entered the cafeteria and spoke to a man behind the counter who, when asked, indicated that alcohol was on sale, although his English was poor, and there was alcohol in the fridges behind the counter. The man was able to understand the principle of sale and was able to answer all the questions put. There were customers having food and drink at several tables but Mr Le Besque could not tell whether they were consuming alcohol. The menu in the cafeteria included alcohol. A little later he said there were about 450 people at the function; Mr Yazgan put the low number of bottles of wine (one per table) down to the fact that most guests attended by car and therefore did not drink. According to Mr Yazgan, all the alcohol had been brought to the premises by the hirer of the hall.
40. A Ms Charlotte Palmer, a Pollution Control, Planning and Licensing Team member, gave evidence that she visited the premises on 18 November 2011 with Ms Green, where they were met by Mr Aksu and Mr Yazgan. She saw the main hall was being prepared for a wedding party which they were informed was for 400 people. She calculated 480 chairs were set out plus 82 chairs at the head table. She said that the dance floor had been covered with a piece of carpet which was loose on the floor. She advised that it could be a tripping hazard and should be fixed down with tape as a minimum. There were six tables spread over the carpet which were more widely spread than the other tables. Ms Palmer did not ask about whether the carpet would be removed for dancing to take place.
41. The magistrates then summarised the closing submissions of the parties. The Local Authority submitted that the licensable activities of the sale of alcohol and provision of regulated entertainment had taken place. There was evidence that alcohol was offered for sale on at least one occasion and it could be assumed that it was not a one-off. Regulated entertainment had been provided by the hiring out of a hall fully equipped for dancing. They referred to Schedule 1, paragraph 1 of the Act and then said this:

i. "For the purpose of sub para (2)(c) entertainment is, or entertainment facilities are, to be regarded as provided for consideration only if any charge-

(a) is made by or on behalf of

(i) any person concerned in the organisation or management of that entertainment or

(ii) any person concerned in the organisation or management of those facilities who is also concerned in the organisation or management of the entertainment within Para 3(2) in which those facilities enable persons to take part, and

(b) is paid by or on behalf of all the persons for whom that entertainment is, or facilities are, provided.

ii. The Respondent Local Authority also submitted that when the appellants hired out the premises for gain the venue included the facilities for dancing and entertainment - in the form of a dance floor, sound limitation device and speakers, also that Mr Yazgan was guardian of the premises; the person responsible for overall control, and control and supervision of the CCTV. Photographs on the website for the premises showed speakers installed. The Respondent Local Authority argued that Mr Yazgan retained management of the venue since he was both guarding the venue and showing the local authority visitors around and answered how the premises were being managed. Paragraphs 3.17/3.18 of the DCMS Guidance in particular indicated, in the Respondent's view, that the owner may become involved in the management of the premises by hiring or providing dance floor or speaker facilities. It was argued that fully equipped entertainment facilities such as the Kervan Banqueting Suite in this case could not be hired out without it being a licensable activity."

42. They then turned to the submission for counsel for the appellants who first referred to the Hope and Glory case to which I have already referred. Then the magistrates went on to summarise the submissions as follows:

i. "Mr Yazgan was not involved in any of the organisation or management of the entertainment and therefore the requirements of schedule 1 did not apply.

ii. The Hall was not hired for gain with entertainment facilities in that the floor was an integral part of the hall and that this was different to hiring out a dance floor.

iii. As a result, in the absence or regulated entertainment and therefore licensable activities, the premises were not subject to the conditions of the premises licence and accordingly there had been no breaches of that licence. It followed that the Sub-Committee erred in revoking that licence.

iv. In any event there was no mention of the S.182 Guidance in the decision of the Sub-Committee or evidence that they had had regard to their own Statement of Licensing Policy."

43. The magistrates then went on to consider the relevant parts of the section 182 guidance which I have already read, namely paragraphs 3.16 to 3.19, and they were set out in full in the stated case.
44. I turn now to the findings of the magistrates as set out in the case stated. After dealing with matters of procedure and adjournment they said this:

i. "c. We were satisfied that during the period covered by these proceedings at least two licensable activities under the Licensing Act 2003 occurred. We found that the hire of a room with the facility of a dance floor, as advertised, whether that floor is portable or fixed, for consideration and with a view to profit, is a licensable activity and that schedule 1, part 1, paragraph 1(4) of the Act was satisfied by the involvement of Mr Yazgan. We also found that during the period alcohol was available for sale and advertised as such on a menu. This is attested by two officers of the Local Authority and on separate occasions. The offer for sale of alcohol is a licensable activity. As licensable activities were taking place a premises licence under the Licensing Act 2003 is required.

ii. d. We also found that the standard of management had fallen far below that which a responsible owner should have maintained. While the appellants may have relied on advice which we consider to be wrong as to what was and what was not a licensable activity, nevertheless the poor standard of management was of considerable concern."

45. However, the conclusion of these magistrates that the requirements of paragraphs 1(4) of Schedule 1 were "satisfied by the involvement of Mr Yazgan" does not indicate in what respects Mr Yazgan's involvement satisfied the requirements of paragraph 1(4). For example, the magistrates did not say that they found that Mr Yazgan was in any way involved with the organisation or management of the entertainment, in this case the dancing that took place on the dance floor.
46. In my judgment, there cannot really be any dispute about the fact that Mr Yazgan was concerned in the organisation or management of the facilities, that is the say the dance floor. The more difficult question is whether it can be said that he was also concerned in the organisation or management of the entertainment within paragraph 3(2), and that is with the dancing. So I turn to the submission of the parties before me.
47. Mr Lopez made the following submissions in relation to whether or not there was regulated entertainment. He referred to paragraph 14 of Mr Kolvin's skeleton argument, which concerned the involvement of Mr Yazgan, and he dealt with the points in turn. The first point was that Mr Yazgan was the designated premises supervisor under the licence, to which Mr Lopez submitted that was irrelevant because he did not need to be present on any particular occasion in that capacity. The second point was that on 21 March while a function was taking place Mr Yazgan had introduced himself as the manager of the premises and head of security. Mr Lopez's retort to that is that being in charge of security is only one of the many aspects that is engaged by the conditions under the licence and so that takes matter only a limited step further. The third point was that on 22 October 2011 Mr Yazgan was acting as a door supervisor during the function and introduced himself as the premises licence holder and designated premises supervisor. Mr Lopez's response to that was that acting as a door supervisor is not choosing or organising or controlling or managing the dancing, or even the music for the dancing.
48. The fourth point was that on 5 November Mr Yazgan was responsible for looking after the premises and security during a function and that he showed CCTV footage to the Council's licensing enforcement officer. Mr Lopez simply submitted that all this showed is that Mr Yazgan was responsible for looking after the premises as a whole. The fifth point I can ignore. The sixth point was that Mr Yazgan was also present at other visits on 8 and 18 November 2011. But, as Mr Lopez realistically pointed out, the mere fact that he was present does not indicate that he was involved in the organisation or management of any dancing that was going on on those occasions. So taking this in the round, Mr Lopez submitted that on reading the magistrates findings one cannot find any material to show that the conditions of paragraphs 1(4)(ii) of Schedule 1 were satisfied.
49. In relation to the sale of alcohol, Mr Lopez pointed out that what the magistrates found was "the offer for sale of alcohol is a licensable activity". He submitted that it is not. He submitted that the licensable activity is the sale of alcohol. Thus, the owner does not have to comply with the conditions of the premises licence unless and until alcohol is actually sold. Mr Lopez may be right about this but I consider that it is not necessary on this appeal to decide the point. The question, in my judgment, is whether or not the magistrates were entitled to make the decision that they did. I accept, as Mr Lopez submitted, that the focus of the submission to the magistrates was that there had been breaches of the conditions of the licence, including in relation to the sale of alcohol. I consider that it is, or would have been, a fair inference from the evidence before the magistrates that alcohol had in fact been sold at some events.
50. In relation to the first point, Mr Phillip Kolvin QC who appeared for the respondents made the following submissions. First, he reminded me of the licensing objectives and submitted that if the public was to be protected, there were two routes open: a prosecution for an offence under section 136 of the 2003 Act, or the making of an application for the review of a licence by a person entitled to do so. On such a review, the licensing subcommittee must, he submitted, having regard to the application made and any representations, take such steps as are permitted by the Act, if any, as it considers appropriate for the promotion of the licensing objectives. Mr Kolvin submitted that since this was an appeal against the decision of the licensing subcommittee made on application for a review of the premises licence, the magistrates were entitled to make any decision that the licensing subcommittee could have made which were the taking of such steps as mentioned in the Act as they considered appropriate for the promotion of the licensing objectives.
51. In my judgment, these submissions are correct. On the evidence, the magistrates were quite entitled to find that alcohol had been offered for sale in circumstances where its sale would have been a breach of the premises licence. In those circumstances, I accept Mr Kolvin's submission that the magistrates were entitled to take any step that they considered appropriate for the promotion of the licensing objectives in order to deal with that state of affairs.
52. In relation to the point about the appellants' organisation and management of the entertainment, Mr Kolvin submitted that Mr Yazgan, who was in charge of security at the premises, was in a position to control what was going on at the event, including what was happening on the dance floor. He submitted that it did not require a very significant degree of organisation or management for paragraph 1(4)(c)(ii) of Schedule 1 to be engaged. Mr Yazgan, he submitted, was there in a managerial capacity. It was sufficient if he was there in a capacity by which to ensure that the event ran smoothly.
53. Ably though these submissions were advanced, I do not accept them. In my view, there is a fundamental difference between having the management and organisation of an activity and having a residual power to prevent or control it. For example, the fact that the police have the power to control a demonstration does not mean that they are involved in the management or organisation of it. It seems to me that the management and organisation of the activity in question, in this case dancing on the dance floor during the event, to the extent that such dancing is in practice managed or organised, would be by the person responsible for controlling the music, or ultimately the host who was giving the function. It would not have been open to Mr Yazgan to tell, or even ask, someone to change the music because he thought, for example, that the dancing that was being carried out was in a manner that was unsuitable. It may well be that Mr Yazgan as the person responsible for the security of the premises would have had a residual right to intervene if a riot broke out on the dance floor or if people were smoking whilst dancing but that, in my view, does not make him involved in the organisation or management of that dancing.
54. In my judgment, there was no evidence before the magistrates that justified a finding that the appellants, or anyone on their behalf, was concerned in the organisation or management of the dancing at events which were held at the Banqueting Hall. Accordingly, their finding that paragraph 1(4) of Schedule 1 was "satisfied by the involvement of Mr Yazgan" was not a finding that was open to them on the evidence. Accordingly, that part of their decision was wrong as a matter of law.
55. However, in my judgment, the decision to substitute for the decision of the licensing subcommittee a requirement that Mr Yazgan be removed from the premises licence as the designated premises supervisor was a decision that they were entitled to reach on the material before them. I have already given reasons why I consider that the magistrates were entitled to reach the conclusion that the appellants were involved in the sale of alcohol during events at which the Banqueting Hall was hired out. They were certainly entitled to conclude that alcohol was being offered for sale. In the light of these conclusions, I cannot see how the decision of the magistrates to require the removal of Mr Yazgan as the designated premises manager is one that can be faulted. There is, of course, no appeal against their decision not to revoke the licence.
56. As far as the case stated is concerned, the answers to the two parts of question 1 must be no and yes, respectively. However, for the reasons that I have already given, it was sufficient that the court was concerned that alcohol might be sold because it had found that it was being offered for sale. In the light of the answer to the first part of question 1, the second question does not arise. In any event, in the light of my conclusions on the relevant paragraph of the guidance document, paragraph 3.18, no useful purpose is to be served by answering it. In any event, both counsel accepted that it was a question of secondary importance. It seems to me that the answer to the third question posed by the magistrates is probably yes but, again, given my conclusion on the guidance document, there is little to be gained by answering it.
57. For these reasons, in particular my conclusion in relation to the decision to replace Mr Yazgan, it follows that this appeal fails and must be dismissed.
58. MR KOLVIN: My Lord, I am very grateful. I am also very grateful for my Lord having dealt with it so quickly today. There is an application for costs. I do not know whether a summary found its way to my Lord.
59. MR JUSTICE EDWARDS-STUART: Unfortunately, it did not but no doubt it is going to now. (Handed). Has Mr Lopez seen it?
60. MR KOLVIN: Yes, my Lord, he has, it was served yesterday. There is an application in the sum of £13,701. I think we should call that £13,700. I have not had the opportunity to hear from Mr Lopez about it.
61. MR JUSTICE EDWARDS-STUART: Let me just have a look. Yes.
62. Mr Lopez, what do you say about costs in principle and in detail?
63. MR LOPEZ: Turning to the principle first, my Lord, the fundamental part of the challenge that was made to the decision of the justices focuses on question 1 of the case stated and, more particularly, the question as to whether it was open to the justices to find what they did in relation to their disposal of regulated entertainment. Despite the overall dismissal of the appeal, it has been the court's finding that turning to that particular -- and in my submission obviously fundamental -- part of the challenge --
64. MR JUSTICE EDWARDS-STUART: You won.
65. MR LOPEZ: That we won, that it was not open to the court to so conclude. I hope, in dealing with the claim in that way I am doing justice to the way in which the pleadings were put, that they were fundamentally focused on that key question. That was opposed by the London Borough of Enfield and in that context, insofar as the thrust of the challenge and the response to that challenge was dealing with that single issue, there is, in my submission, no justification for an award of costs where it relates to that issue. So in principle the appellants object to costs on that basis but that will involve the court obviously dealing with costs referable to the relevant arguments made. My Lord, as to --
66. MR JUSTICE EDWARDS-STUART: Sorry, just pausing there. Given the amount of costs involved here, it would not be proportionate to refer this for assessment of how much was attributable to which issue or which issue, I will just have to take a punt at it.
67. MR LOPEZ: My Lord, yes.
68. MR JUSTICE EDWARDS-STUART: That is what the parties would prefer, is it not? I mean, you would spend more money arguing about the appropriate division than ever would be involved in the sum at stake, I suspect.
69. MR LOPEZ: Of course. My Lord, the second component of question 1 the court has found against the appellant. By comparing that with the first part of question 1, I say that that was a very self-contained and narrow issue. So far as questions 2 and 3 are concerned, in light of my Lord's judgment question 2 has not but need not be addressed but necessarily by definition has not been found against the appellants.
70. MR JUSTICE EDWARDS-STUART: I think, Mr Lopez, that those two questions are really neutral.
71. MR LOPEZ: My Lord, yes.
72. MR JUSTICE EDWARDS-STUART: It all turns on whether there should be some different order for costs other than costs following the event, in the light of what I found in relation to question 1. That is the heart of it.
73. MR LOPEZ: Yes. Those are my submissions in principle.
74. MR JUSTICE EDWARDS-STUART: Do you want to say anything about the quantum?
75. MR LOPEZ: No observations on quantum.
76. MR JUSTICE EDWARDS-STUART: That seems fair enough.
77. Okay, Mr Kolvin, what do you say about it? What I think is being suggested is either there should be no order for costs or you should only get a proportion of your costs to reflect the degree of success on the issues, on an issue basis.
78. MR KOLVIN: My Lord, I refer to CPR 44, which asks who the successful and who the unsuccessful party is.
79. MR JUSTICE EDWARDS-STUART: And you are the successful party.
80. MR KOLVIN: We are the successful party. That is the first point. The second point is that we are a body funded by public funds, we are here in order to seek to have upheld an important regulatory decision, and it has been upheld. The third point is that appeals are against judgments and decisions as opposed to the mechanisms and the reasons that led to those judgments. The only reason my client is here is not to have an interesting argument about a paragraph in an Act but in order to seek to have upheld a decision which was imposed in order to protect the public, that explains my presence here, and having been successful in that I would ask for all of the costs.
81. If my Lord is against me on that and there needs to be some kind of apportionment, I would simply say there that three issues were raised in the case stated, there was success on one half of one of the issues but it did not make any different to the result of the case, and even in advancing that half an issue, a number of points were raised in the skeleton argument which simply had to be abandoned, as to whether, for example, paragraph 2 was relevant, but I do have to say that although Mr Lopez has had a measure of success, on the way the facts apply to a particular provision of the legislation it has made no difference to the result, and for that reason my primary submission is one that I stick by principally.
82. MR JUSTICE EDWARDS-STUART: You should have a hundred percent of your costs?
83. MR KOLVIN: Yes.
84. MR JUSTICE EDWARDS-STUART: Anything you want to say in reply?
85. MR LOPEZ: My Lord, yes. One observation on apportionment, part 44 of the CPR, is that it is entirely consistent in relevant cases that the court can apportion costs referable to issues and they are, in my submission, clearly defined in this case and so it is well within the power of the court to deal with it on that very sensible basis and, I add, in the context of where the finding of the court and the relevant issues are so clearly defined.
86. MR JUSTICE EDWARDS-STUART: Thank you, Mr Lopez.
87. So far as costs are concerned, there is an application by the London Borough of Enfield that they should have their costs in full since they won. Those costs are submitted in a sum of £13,700 odd and Mr Lopez takes no issue with the figure. However, he submits that since, in effect, the Local Authority lost on what was probably the principle issue, certainly in terms of time, before the court that either it should not have its costs at all or, alternatively, it should have only a proportion of its costs.
88. Mr Kolvin points out, rightly, that this is an appeal against a decision and the decision was upheld and that the Local Authority as a public body is in the business of seeing that decisions which ought to be upheld are upheld and that it is the decision that matters and not really the route by which it is reached. A point which has also been made in the course of the submissions but not particularly on costs is the fact that the appellants behaviour before the licensing subcommittee was odd to say the least, which did then give rise to, in effect, a second hearing and a lot of evidence before the magistrates which perhaps might not have been considered in quite the same detail had the proceedings not taken the route which they did but the fact is that on this application the magistrates' case stated had to be investigated in quite a lot of detail and that may in part have contributed to the way the proceedings went. However, be that as it may, the fact is that the appellants have succeeded on a major issue and probably an issue that took up most of the time, it seems to be inevitable that had that issue not been live that the amount of costs claimed would have been less. However, I think the broad thrust of Mr Kolvin's submissions are correct and that is that it is the Council who have succeeded and that the appeal has failed so that the decision below stands.
89. I think the appropriate order, doing the best I can, is that the Council should have 75 per cent of its costs. For the purpose of formality, I formally assess them in the sum claimed, namely £13,701.10. I assume that VAT is appropriately included, as it ought to be, but if any adjustment needs to be made because there is a VAT error then so be it.
90. MR KOLVIN: I am sure we can do the maths.
91. MR JUSTICE EDWARDS-STUART: Mr Kolvin, can I ask you, as a penance for being the successful party, to draw up the order and get it emailed to the associate, whose address can be obtained upon request. Can I thank you both very much for extremely cogent and interesting arguments. I am very grateful.