Westway
Development Trust: (1/6) "London
property developer in nightclub
swindle"
This research document will
make little sense if you haven't read
Brian Deer's Notting
Hell from The Sunday
Times of June 17 2001. In July 2002 the
trust renamed itself Westway Development
Trust. A Westway
Development Trust index of materials is
also available
THE
WESTWAY DEVELOPMENT TRUST [PREVIOUSLY
NORTH KENSINGTON AMENITY TRUST] AND
SUBTERANIA - FIRST OF SIX PAGES
From
1988 until 1999, the Westway Development
Trust, then known as the North Kensington
Amenity Trust, unlawfully claimed more
than £118,000 in business rates and
public entertainment license fee
exemptions from the Royal Borough of
Kensington & Chelsea on behalf of a
night-club. The losers were the local
community and the exchequer. The
beneficiary was Mr Vince Power of the
Mean Fiddler entertainment group on whose
behalf the charity claimed that the
(wholly for-profit) club Subterania were
charitable premises used mainly for
charitable purposes. Deceptions were
perpetrated by the charity against the
council, proper requests for information
rebuffed and, when challenged, the
charity dissembled. It is clear that the
charity knew what it was doing, but no
satisfactory explanation has been
forthcoming. Mr Power has done nothing
wrong, merely availing himself of an
opportunity any London night-club owner
would envy.
(A)
INTRODUCTION
Subterania
is a well-known London night-club, leased
since 1988 from the North Kensington
Amenity Trust (NKAT, "the
trust", Westway Development Trust),
registered charity 262167, to Vince Power
of the Mean Fiddler Group. The group's
website describes the club as follows [S1]:
"Subterania
in the last ten years has become one of
West London's most prestigious venues. It
has become the musical heartbeat of
Notting Hill and regularly host some of
the best international names on it's
stage and is renowned in the club circuit
as the venue to watch for new trends.
Within Subterania you will find an
intimate environment. There are two bars,
one of which serves the balcony area
overlooking the stage and dance floor
below. Subterania is equipped with 'State
of the Art' sound and lighting."
Evidence
given for the trust at West London
Magistrates Court on 23rd-24th October
2000, attended by Brian Deer for The
Sunday Times, indicated that the club's
capacity is 600, with a music and dancing
license extending into the early hours of
the morning. Paul Weller, Annie Lennox,
Iced T are among past performers at the
venue. After 11pm, admission was stated
as £11. At the hearing, the trust, which
for reasons unknown has remained the
licensee on behalf of Mr Power, was
attempting to overturn restrictions
imposed by the local authority arising
from residents' complaints about late
night noise and disruption. The trust
lost, with costs awarded against it on
grounds of its unreasonableness, and
lodged an appeal of the appeal to the
Crown Court (withdrawn shortly before the
scheduled hearing on February 21st 2001)
and in so doing was able to defy the
magistrate's order, the council and local
residents for a few extra months.
A
report of the council's licensing
(hearings) committee dated 30th June 1991
[S2] shows that Subterania was in
full flow as of that date at least:
"We
considered an unopposed application by
the Trustees of North Kensington Amenity
Trust for an amendment to the existing
extension of hours at Subterania, Acklam
Road, W10 from 1.00am to 2.00am, Monday
to Thursday, and from 2.00am to 3.00am
Friday and Saturday."
One
condition attached was that "Dancing
shall not be permitted on the mezzanine
floor."
Eight
years later, after inquiries frustrated
by the charity at every opportunity, a
report by the director of environmental
health of the Royal Borough of Kensington
and Chelsea for a committee meeting on
11th March 1999 [S3] says evidence
suggested that:
"Subterania
was operated principally as a commercial
night club by the organisation 'Mean
Fiddler' and that NKAT - the licensee -
had little to do with the premises on a
day to day basis. It would seem that 15
charitable events were held at the
premises in the period May to December
1998, seven of which were associated with
the Portobello Film Festival in August.
However, over the same period, Subterania
operated as a commercial night club twice
a week on Fridays and Saturdays - around
60 events in all. There was also evidence
that the Mean Fiddler had advertised the
fact that the premises were available for
hire for parties."
Also:
"Officers
in the Licensing Unit know from
experience that Subterania operates at
virtually full capacity two nights a week
throughout the year. With typical
attendance of the order of 600 persons
per night, and an average ticket price
of, say, £8, this would imply gate
receipts alone of the order of £500,000.
The receipts from the bar cannot be
estimated with similar confidence, but it
is likely that these are very substantial
- quite possibly at least as great as the
gate receipts."
Aside
from the noise and disruption, Subterania
has attracted local controversy. In
allegations denied in the report by Mr
Power, The Kensington News dated 9th
March 1995 leads page 1 with the
following [S4]:
"CLUB
IS 'RACIST'
"We're
being barred claims community
"Community
leaders fear a violent backlash over a
North Kensington club's 'racist' door
policy... Steve Shervington, 33, turned
away twice from the club, already has 100
signatures on a petition to be given to
the trust."
See
also reports of two recent shootings and
other problems at the club. [S4].
(B)
IN 1988 THE TRUST LEASED THE PREMISES TO
VINCE POWER
The
premises at 12 Acklam Road were
originally constructed about 25 years
ago, using loans from the Royal Borough
of Kensington and Chelsea, as the Acklam
Community Hall. Later it was redesignated
as a club, Bay 63, still occupied and
managed by the trust. The premises are a
few hundred yards from the trust's
offices at 1 Thorpe Close.
Declaring
itself incapable of managing Bay 63, in
1988 the trust gave the premises, without
advertising or competitive tender, to Mr
Power for nine years (since renewed). On
30th March 1988, a lease was issued to Mr
Power, drawn up by the trust's
solicitors, Sinclair Taylor and Martin, a
tenant of the trust at 9 Thorpe Close.
The trust claims that this document is a
"management agreement" or,
alternatively a "management
arrangement", claiming that Mr Power
was not a tenant, but the trust's
"promoter". This is wrong. This
document [S5] is plainly a lease,
with elements of a license, including (on
page 1) the definitive expression
"demised premises", plus a map
and standard terms, such as clause 5.5:
"To
paint the Club with two coats at least of
good quality paint of a colour to be
previously approved in writing by the
Trust in the case of external and the
last internal decoration and wash polish
or otherwise treat as the case may be in
a proper and workmanlike manner all the
wood stone iron and other work in the
Club previously or usually painted washed
polished or otherwise treated as
aforesaid as to the interior in every
fifth year and as to the exterior in
every third year of the term calculated
from the date hereof and also in each
case in the last month thereof (howsoever
the same may be determined)"
Mr
Power took this document to be a lease -
and presumably he would know. In the
published accounts for (Mr Power's)
Subterania Ltd 1992, [S6] the
company claims tangible assets as at July
1991 valued at £569,000. The following
year, the accounts identify such assets
under the heads "Land and buildings
leasehold (short)" and
"Fixtures fittings &
equipment." The accounts for the
following two years do likewise,
depreciating the sums, after which
accounts may not be available from
Companies House. In a recorded interview
with Brian Deer, Mr Power said that he
had spent £330,000 upgrading the
facility, including the construction of a
balcony.
The
trust's accountants identified the
(nominal) income from Subterania as
"rent", further exposing as a
fiction the suggestion that Mr Power was
managing the club on behalf of the
charity. As in earlier years, the notes
to the published annual report and
accounts for the year ending 1994 [S7]
- with the club confusingly still
identified as "Bay 63"
notwithstanding its earlier redesignation
as Subterania - shows money received
against the words "rental
income". For reasons unknown,
comparable information is not included in
trust accounts for more recent years,
obscuring the relationship from those who
may wish to inspect the public record. No
reference to Subterania, "Bay
63" or anything relating to them is
included in recent annual reports and
accounts - an important matter to be
dealt with later in this document.
In a
"confidential" internal trust
memo dated 8th May 1997, [S8]
which discusses extending the
relationship with Mr Power to run a
cocktail bar, the Ion Bar, next to
Ladbroke Grove station, Roger Matland
describes the Mean Fiddler organisation
as "Well known to the Trust as
tenant/managers of Subterania". (The
"confidential" trust document
discussing the assigning of Subterania to
Power is also attached at [S8])
Further
evidence that the relationship was arms
length landlord and tenant and not a
management agreement or arrangement is
that the trust had no access to basic
business information about the club's
operations. On 7th October 1998, the
council's environmental services
department wrote to the trust [S30]:
"If
the North Kensington Amenity Trust intend
to apply for a reduction in the licence
fee, please submit documentary evidence
relating to the income, expense and
profit/loss for Subterania."
Matland
replied for the trust on 16th October
1998 declining this request [S31]:
"We
have no knowledge of their profits and
losses and it would be far too invasive
of the Trust to now try and demand such
information."
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