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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