Aksu & Anor v London Borough of Enfield

On an appeal from a licensing decision, the appellate court must decide whether the decision was wrong on the evidence before it. The appeal is not a judicial review and does not require Wednesbury unreasonableness.

A dance floor supplied with hired premises may constitute an entertainment facility under the Licensing Act 2003. However, the owner’s residual power to control the premises, including security powers, does not by itself amount to involvement in the organisation or management of dancing. The licensing guidance at paragraph 3.18 was incorrect to the extent that it treated provision of entertainment facilities as licensable without the statutory requirement of a charge made with a view to profit, or treated hiring equipment alone as management of the entertainment.

The appellants appealed by way of case stated against a decision of the Enfield Magistrates’ Court. The magistrates had allowed their appeal against the licensing subcommittee’s revocation of the premises licence for a banqueting hall.

The magistrates substituted a decision leaving the licence in force but removing the second appellant as designated premises supervisor. They found that the premises had been hired with a dance floor and that alcohol had been offered for sale. The central questions were whether regulated entertainment and alcohol sales had occurred, whether the licensing subcommittee had properly considered the statutory guidance and local policy, and whether the magistrates had given appropriate weight to those matters.

1. The appeal was dismissed. The magistrates’ decision to leave the premises licence in force and remove Mr Yazgan as designated premises supervisor was upheld. The Council was awarded 75 per cent of its assessed costs.

2. Following Hope and Glory Public House Ltd, R (on the application of) v City of Westminster Magistrates Court & Ors [2011] EWCA Civ 31, an appeal from a licensing decision requires the appellate court to decide, on the evidence before it, whether the decision below was wrong. The test is not Wednesbury unreasonableness.

3. Under Schedule 1 to the Licensing Act 2003, a dance floor is an entertainment facility enabling dancing. It may remain such a facility whether fixed or portable. The statutory conditions also require provision for consideration and with a view to profit, and involvement by the person charging in the organisation or management of the facilities and of the entertainment enabled by them.

4. The appellants were concerned in managing the dance floor as a facility. But the evidence did not establish that they, or anyone acting for them, organised or managed the dancing. A residual power to intervene for security or to prevent disorder is different from organising or managing the activity. The magistrates’ finding that the statutory requirement was satisfied by Mr Yazgan’s involvement was therefore wrong in law.

5. The first sentence of paragraph 3.18 of the section 182 guidance was inconsistent with Schedule 1 because it omitted the statutory requirement for a charge made with a view to profit. The following sentence was also wrong insofar as it treated hiring a dance floor or sound equipment as involvement in managing the entertainment itself.

6. The magistrates were entitled to find that alcohol had been offered for sale and that the evidence fairly supported an inference that alcohol had in fact been sold at some events. On a licence review, the appellate court could take any step available to the licensing subcommittee that it considered appropriate to promote the licensing objectives. Removal of the designated premises supervisor was therefore permissible.

• High Court (Administrative Court): appeal by way of case stated dismissed. The magistrates’ substituted decision remained in force.
• Enfield Magistrates’ Court: appeal from the licensing subcommittee allowed; the licence was not revoked, but Mr Yazgan was removed as designated premises supervisor.
• Licensing subcommittee of the London Borough of Enfield: premises licence revoked following a review application.