EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Mackay of Drumadoon Lord Bonomy Lord Philip	[2012] CSIH 33 XA108/11 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in Appeal under the Civic Government (Scotland) Act 1982 in the cause THOMAS EDWARD COYLE Pursuer and Appellant; against GLASGOW CITY COUNCIL First Defenders and Respondents; and CHIEF CONSTABLE, STRATHCLYDE POLICE Second Defender and Respondent: _______

Act: Skinner ; Lindsays

Alt: Blair; City of Edinburgh Council

(The second defender and respondent did not participate)

29 March 2012

[1] This is an appeal against an interlocutor of the sheriff at Glasgow dated 5 August 2011. In terms of that interlocutor, the sheriff upheld a decision of the first respondents' Licensing and Regulatory Committee ("the Committee") at its meeting on 10 March 2011. By virtue of that decision, the first respondents refused the appellant's application for the renewal of a House in Multiple Occupation Licence in respect of a property at 12 Belmont Street, Glasgow. The appeal proceeds under the provisions of paragraph 18(12) of the First Schedule to the Civic Government (Scotland) Act 1982 ("the 1982 Act"). The second defender, who objected to the renewal of the appellant's licence, has not participated in the appeal.

[2] The appellant is the owner of a number of residential properties in Glasgow, which he leases out on a commercial basis. One of those properties is at 12 Belmont Street, Glasgow, in respect of which the appellant requires a licence for a House in Multiple Occupation from Glasgow City Council. The granting and renewal of such licences are regulated under the provisions of Section 44 and Schedule 1 to the 1982 Act.

[3] The history of events giving rise to the appeal is as follows. Early in the morning of 7 February 2010 an incident took place at a flat in another property owned by the appellant, namely Flat 1/1, 20 Walker Street, Glasgow. The incident began when the appellant arrived unannounced at the Walker Street flat. Having rung the buzzer, knocked on the door, and received no reply, the appellant let himself into the flat with his own keys to the flat. The appellant's conduct led to his female tenant contacting the police. Following upon the arrival of police officers the appellant was taken into police custody and charged with a number of offences.

[4] On 30 March 2010 the appellant applied to the first respondents for renewal of his House in Multiple Occupation Licence for 12 Belmont Street. On receipt of that application the first respondents intimated the application to, amongst others, the second defender. On 14 April 2010 a chief inspector wrote to the first respondents on behalf of the second defender in respect of the appellant's application. The letter stated:

"Unfortunately, a matter has arisen which requires further investigation and I am therefore unable to comment further on the applicant's suitability to hold the above licence. However I will revert to you when all the enquiries have been completed."

The first respondents' receipt of that letter was not intimated to the appellant at that time.

[5] On 15 November 2010 at Glasgow Sheriff Court the appellant pled guilty to two charges of contravening the Police (Scotland) Act 1967, Section 41(1)(a). Those offences arose out of the incident on 7 October 2010 at the Walker Street flat. The procurator fiscal accepted pleas of not guilty in respect of other charges the appellant had faced in respect of that incident. The appellant was fined £250 in respect of each offence.

[6] On 10 December 2010 the chief inspector wrote two further letters on behalf of the second defender to the first respondents. In the first letter the first respondents were advised that in terms of paragraph 3(2) of Schedule 1 to the 1982 Act the second defender requested the first respondents' Licensing Committee to consider the attached objection out of time. The first letter also indicated that in making this request the second defender wished to advise the Licensing Committee that the matter that had arisen had required further investigation with the procurator fiscal. That had precluded formal intimation within the statutory timetable. The second letter dated 10 December 2010 stated that the second defender objected to the appellant's application. He did so on the ground that the appellant was not a fit and proper person to be the holder of a licence by virtue of his conviction at Glasgow Sheriff Court on 15 November 2010. A bare description of the charges of which the appellant had been convicted and the fines imposed was set out in that letter.

[7] On 25 January 2011 the first respondents wrote to the appellant advising him that his application would be considered by the Licensing and Regulatory Committee at a public meeting on 10 February 2011. The letter indicated that, when considering the application, the Committee intended to take into account the letter dated 14 April 2010 and the first of the two letters dated 10 December 2010 to which we have referred. The letter dated 25 January 2011 also indicated that the Committee might also take into account the letter of objection on behalf of the second defender, being the second of the two letters dated 10 December 2010.

[8] The hearing fixed for 10 February 2010 was adjourned to enable the appellant to instruct a solicitor to represent him. At the resumed hearing on 10 March 2011 the appellant was represented by his solicitor, John Batters. At the outset of the hearing the Licensing and Regulatory Committee considered whether the second defender's objection should be entertained, although late. Having heard the chief constable's representative and the appellant's solicitor, the Committee allowed the objection to be entertained late. Thereafter the hearing proceeded.

[9] What happened during the hearing is summarised in a Statement of Reasons dated 11 April 2011, which the solicitor advising the Committee subsequently wrote to the appellant's solicitors. It contains the following passage:

"As a preliminary matter the Committee had first to consider whether to take into account a letter of objection for the Chief Constable of Strathclyde Police dated 10 December 2010 which had been received late in terms of Paragraph 3(1) of Schedule 1 to the above Act. The Chief Constable's representative who was present at the meeting advised the Committee that the said objection was late as there had been a pending case against your client, the nature of which was relevant to his application. Mr Batters advised the Committee that there had been a delay of some two months in receipt of the said objection. After adjourning to consider its decision the Committee was of the view that there was sufficient reason why the said objection had not been made before the expiry of the statutory period and so it decided to have regard to its terms, and to the submissions made by the Chief Constable's representative in its support, when considering your client's application.

The Committee also took into account submissions made by Mr Batters in support of your client's application and in response to the matters raised by the Chief Constable.

The Committee noted from the Chief Constable's said letter of objection that on 15 November 2010 at Glasgow Sheriff Court your client had been convicted of two contraventions of Section 41(1)(a) of the Police (Scotland) Act 1967, for which he was fined a total of £500. The Chief Constable's representative advised the Committee that your client had been convicted following an incident at approximately 6.00am on 7 February 2010 in flat 1/1, 20 Walker Street, Glasgow, a property owned by your client, involving a female tenant. Police Officers had been called to the property by the female tenant who was very distressed. She told the Police that your client was in the flat and was refusing to leave. The police entered the close with the assistance of another resident and when they entered the flat the female tenant was found to have locked herself in her bedroom. Your client told Police Officers that he had gone to the flat for 'a laugh'.

In response Mr Batters advised the Committee that on the night before the incident your client had been at the flat in order to carry out some repair work to the cistern. He left the flat at about 9.00pm and was out with friends when he realised that he had left his own flat keys. He stayed with a friend that night but as he had an appointment in Edinburgh the following day, he was keen to return home. Your client called the flat but there was no reply. On going round to the flat he tried the buzzer and knocked on the flat door but again there was no reply. As he thought that the flat was unoccupied, he used his set of keys to let himself in order to retrieve his own flat keys. As he was looking for them he heard movement and called out to identify himself. The female tenant had already heard him and, being frightened, had already called the Police. When the Police arrived your client tried to explain what happened but the situation got 'out of hand'. It was Mr Batters' submission that your client's presence in the flat was not for 'evil purposes' and that although your client had not handled the situation well, and in hindsight should not have gone to the flat so early, he was still a fit and proper person to hold a Licence. The Committee also noted his submission that your client had not physically assaulted the Police and that he had pled guilty to the charges of resisting arrest.

The Committee also noted Mr Batters' submission that the female tenant was of Chinese origin and that she did not have good English and so this may have led to a misunderstanding as to why your client was present in the flat. He also advised that your client had had problems with the tenant, in particular in relation to complaints about her flatmate.

In response the Chief Constable's representative advised the Committee that, according to the Police Report of the incident, at about 5.20am the female tenant had heard the flat buzzer pressed repeatedly and then a knock at the door before it was opened. She then heard your client knocking constantly on her bedroom door. The Police Report stated that she knew that it was your client in the flat and that she had locked her door due to his previous behaviour. It was her impression from what he said that he had wanted to have sex with her. When the Police arrived your client would not let them into the close, and when Police entered the flat and spoke to your client regarding the situation, he was dismissive and said that it was his house. Further Police Officers required to attend at the flat to assist officers already present and your client 'violently' resisted arrest and spat at officers. With regard to the female tenant's English, the Chief Constable's representative advised that there was no reference in the Police Report that an interpreter was required when Police Officers spoke to her.

Mr Batters advised the Committee that the terms of the Police Report with regard to the incident had not been tested in court. Your client denied that it had happened as described in the Report. Mr Batters advised the Committee that the Procurator Fiscal had dropped two charges against your client in relation to the incident, preferring the charges for which he was convicted. He also submitted that your client did not refuse the Police entry to the close as it was possible that the buzzer wasn't working properly.

In support of the application Mr Batters advised that your client realised that it had been a mistake to go to the flat at that time but that it was 'reasonable to assume' that your client had not intended to 'molest' the tenant. It was a 'silly' and isolated incident and there was no suggestion that such an occurrence would happen again. Your client's clean record had been destroyed and he had paid the penalty for his actions. The Committee noted that your client was 52 years old, of good character and had twelve properties, three of which were Houses in Multiple Occupation, and that they were managed without any problems or complaints. It was Mr Batters' submission therefore that he was fit and proper person to hold the Licence applied for.

After careful consideration the Committee preferred on this occasion the submissions made by the Chief Constable's representative rather than the submissions made by Mr Batters.

In determining to refuse your client's application in terms of Paragraph 5(3)(a)(ii) of Schedule 1 to the above Act the Committee was very concerned by your client's conviction and the circumstances surrounding the incident as narrated by the Chief Constable's representative. Notwithstanding that he had not been convicted of any offence in relation to the said incident, other than for resisting arrest, the Committee was nevertheless of the view that the incident was sufficiently relevant in licensing terms given the type of Licence applied for, it was of the view that your client's conduct, as narrated by the Chief Constable's representative, could not be ignored when considering his application for a Licence for this type. In its view the incident indicated a weakness in character on his part which could not be ignored when considering his application. It was of concern to the Committee that further Police Officers had been required to attend at the flat due to your client's behaviour. In addition while noting Mr Batters' submissions as to the reason for your client's presence in the flat, the Committee was of the view that his behaviour and the comments attributed to him were such that he had frightened his tenant. His conduct fell well below the standard of behaviour expected of persons holding a Licence of this type. Further, notwithstanding Mr Batters' submission that such an occurrence would not happen again, the Committee could not be satisfied in this case that it would not so reoccur (sic). After consideration of all the information available to it and the submissions made at its meeting the Committee was of the view that your client's conviction and the circumstances of the incident indicated a serious disregard on his part for the proper letting, supervision, safety and management of a House in Multiple Occupation such that he was not a fit and proper person to be the holder of a Licence."

[10] The appellant subsequently appealed to the sheriff at Glasgow against the Licensing and Regulatory Committee's decision. The first ground on which that appeal was argued was that the Committee had erred in law, and in any event, exercised its discretion wrongly, by failing to provide proper and adequate reasons for its decision to allow the second defender's objection to be accepted late. The sheriff noted that the paragraph in the first respondent's statement of reasons dealing with this issue, which referred to the need to investigate a report of criminal behaviour, had culminated in court proceedings and the appellant's pleas of guilty to two offences. As such it constituted information on which it had been open to the Committee to determine whether there was sufficient reason to entertain the Chief Constable's objection, although late. Moreover, the sheriff detected no error or unreasonableness in the Committee's exercise of its discretion on this issue.

[11] Secondly, it was argued that the Committee had erred in law, had exercised its discretion in an unreasonable manner and acted in breach of natural justice, by entertaining submissions from the second defender's representative that went further than the second defender's letter of objection. In doing so the Committee had taken into account material that did not form part of the police objection. On this second ground of appeal, the sheriff took the view that when the representative of the second defender had first addressed the Committee all that he had done had been to put the objection based on the appellant's convictions into a proper context. At that stage he had explained that the offences had occurred early one morning at one of the appellant's flats, after a female tenant who had been very distressed had called the police. Subsequently, in response to what had been said by Mr Batters, during his submissions on behalf of the appellant, the second defender's representative had gone further and had indicated that the police information as to the appellant's behaviour had been different to what Mr Batters had indicated. The sheriff took the view that the Committee had been entitled to hear all of the submissions that it did. That being the case, the Committee had been entitled to conclude that the appellant was not a fit and proper person to have his licence renewed. For these reasons the appeal before the sheriff had been unsuccessful.

Submissions for Appellant

[12] The appeal before this Court was argued on similar grounds. It was submitted that the sheriff had erred in law by failing to appreciate that the Committee had exercised its discretion in an unreasonable manner by allowing the police objection to be entertained late and, in any event, by failing to provide proper and adequate reasons for its decision to allow the objection to be entertained late. It was argued that the explanation given by the Committee was inadequate. It had merely reiterated the relevant statutory provisions and provided a simple narration of the background. Neither had been adequate (see Speedlift Auto Salvage v Kyle and Carrick District Council 1992 SLT (Sh Ct) 57 and Ritchie v Aberdeen City Council 2011 SLT 869). It had not been necessary for the second defender to delay intimating any objection until the conclusion of the criminal proceedings. Moreover the Committee had failed to address why the second defender had waited until several weeks after the conclusion of the criminal proceedings before making his objection. The decision to allow the second defender's objection had been crucial to the outcome of the appellant's application. Without the objection from the second defender there would not have been any proper basis for refusing the appellant's application. In these circumstances the appellant was entitled to know why the Committee had been satisfied there was sufficient reason to allow the objection to be entertained late and the material facts which were taken into account in reaching that decision.

[13] Secondly, it was argued that the learned sheriff had erred in law in failing to appreciate that the Committee had exercised its discretion unreasonably and acted contrary to natural justice by basing its decision to refuse, at least in part, on matters which did not form part of the police objection, namely the appellant's alleged criminal conduct towards his female tenant.

[14] The objection on behalf of the second defender had been based solely on the two convictions for contravening section 41(1)(a) of the Police (Scotland) Act 1967. Those charges included no complaint as to the appellant's conduct towards his female tenant. Notwithstanding this, and in the face of opposition from Mr Batters, the second defender's representative had read out a lengthy statement concerning the appellant's alleged conduct. The Committee had thus taken account of matters that were highly prejudicial to the appellant, of which the appellant had not been given any notice and which the appellant disputed.

[15] The alleged incident involving the appellant's female tenant had formed no part of the objection lodged by the second defender. There had been no specification in that objection of any misconduct on the part of the appellant directed against anyone other than the police, and, in particular, none towards the female tenant of the flat. The requirement of specification in objections was a strict one (see The Noble Organisation Ltd v Kilmarnock and Loudon District Council 1993 SLT 759, at pp 762L - 763 E).

[16] Furthermore there had been a breach of natural justice by allowing allegations as to the appellant's conduct towards the female tenant to be sprung upon the appellant and his solicitor (see Catscratch Ltd v Glasgow Licensing Board 2002 SLT 503, at para [13]) The sheriff had accordingly erred in holding that the Committee had been entitled to consider the allegations regarding the appellant's conduct towards the female tenant "as material to give background to the letter of objection" and in holding that the Committee had been entitled to take into account matters not specified in the police objection, because the presence of the appellant at the hearing cured any unfairness.

Submissions for First Respondents

[17] Counsel for the first respondents opposed the appeal and invited the court to sustain the decision of the sheriff.

[18] It was argued that the first respondents' committee had not been under any statutory obligation or duty at common law to give reasons for entertaining the second defender's objection, although it was late. The 1982 Act only required reasons to be given in respect of a decision to grant or refuse an application for a House in Multiple Occupation Licence (see paragraph 17(1) of Schedule 1 to the 1982 Act). In any event what had been said in the statement of reasons provided adequate and intelligible reasons for the decision to allow the objection to be entertained late. The explanation offered on behalf of the second defender was a reasonable one. It was intelligible to the appellant and Mr Batters. That decision itself had been a reasonable one, which it had been open to the Committee to reach.

[19] Counsel for the first respondents also argued that the sheriff had not erred in law in concluding that the decision of the Committee should be upheld. He argued that it was evident on a plain reading of the Statement of Reasons that the material concern of the Committee had been that the appellant had been convicted of two charges of resisting arrest. The context of those offences had involved the appellant entering a flat that he owned and let, and in respect of which he held a House in Multiple Occupation Licence. The appellant had done so very early in the morning and had caused distress to the female tenant such that she had sought the assistance of the police. Following the arrival of police officers the two offences had been committed.

[20] Counsel for the first respondents explained that all of that information had been placed before the Committee when the representative of the second defender first addressed the Committee as to the merits of the objection. What he said subsequently had been put forward in reply to the response to his initial submissions, which had been tendered by Mr Batters on behalf of the appellant. That response had opened up, to a fuller extent, the circumstances surrounding the appellant's convictions. When the second defender's representative spoke again he had merely sought to counter some of what Mr Batters had said and had done so on the basis of his understanding of those surrounding circumstances. No adjournment had been sought on behalf of the appellant. Accordingly it was difficult to identify any basis on which it could be said that the appellant had been ambushed by the information placed before the Committee (see Catscratch Ltd v Glasgow Licensing Board, supra).

[21] Nor could it be argued that the Committee had acted unreasonably in refusing the application. There had been material before the Committee on which it had been entitled to rely. A detailed explanation for the incident at the appellant's flat had been offered on behalf of the appellant. The Committee had preferred the version provided by the representative of the second defender. The Committee as an administrative body had been entitled to proceed on the basis of ex parte statements provided each party had been afforded an equal opportunity to address the Committee, which had happened (see JAE (Glasgow) Ltd v City of Glasgow Licensing Board 1994 SC 290, at p 302).

[22] Counsel for the first respondents also submitted that the Committee had provided adequate and intelligible reasons for refusing the application. Those were set out in the Statement of Reasons. He also responded to the contention that the Sheriff had erred in holding that the presence of the appellant at the hearing had cured any unfairness. The appellant had been able to advance a detailed explanation of what had happened at the flat. In doing so he put those matters in issue and took the risk that the second defender might have a contrary version. Because the appellant had been present, he had been able to brief Mr Batters and could not claim to have been ambushed.

Discussion.

[23] In our opinion, it cannot be argued that the Committee was not entitled to be satisfied that there was sufficient reason for entertaining the second defender's objection to the appellant's application for renewal of his House in Multiple Occupation Licence for 12 Belmont Street, Glasgow. The Committee was entitled to do so notwithstanding that the objection had not been made within the statutory time limit provided for in para 3 of Schedule 1 to the 1982 Act. Nor can it be argued that in its Statement of Reasons dated 11 April 2011 the Committee failed to give adequate and intelligible reasons for allowing the second defender's objection to be entertained.

[24] In paragraphs [3] - [8] of our opinion we have set out the history of events from 7 February 2010, the date of the appellant's arrest, until 10 March 2011, the date when the appellant's application was heard and determined by the Committee. In the fifth paragraph of its Statement of Reasons, which we have quoted in full (para [9]), the Committee records that its was informed on behalf of the second defender that the objection was late because there was a pending case against the appellant, the nature of which was relevant to the appellant's application. The application to have the objection entertained, although late, was opposed by Mr Batters on behalf of the appellant. He is recorded as having referred to a delay of some two months in receipt of the objection. It is not entirely clear which period of two months Mr Batters was referring to. However, what is clear from the first letter of 10 December 2010, which refers to the second defender's earlier letter of 14 April 2010, and was placed before the members of the Committee, when they were considering whether to entertain the second defender's objection, is that several months had elapsed since the appellant's application had been lodged.

[25] The appellant was, of course, aware that be had been arrested on 7 February 2010. He was aware that he had initially pled not guilty to the charges he faced and he was also aware that he had subsequently pled guilty to the two contraventions of section 4(1)(a) of the Police (Scotland) Act 1967 on 10 December 2010. Armed with that information, the appellant was well able to understand the reasoning behind the decision of the Committee to allow the second defender's application to be received late in terms of para 3(1) of the 1982 Act. When the second defender had received notification of the appellant's application to renew his House in Multiple Occupation Licence criminal proceedings were pending against the appellant. The nature of those proceedings and the investigation involved had been considered relevant to the appellant's suitability to hold the licence. Following upon the appellant's conviction on the two charges, the second defender had intimated an objection to the appellant's application. In our opinion the Committee was entitled to reach the conclusion that the procedure followed by the second defender constituted sufficient reason why the objection had not been lodged within the time limit required under sub-paragraph 3(1) of the 1982 Act. The fact that in other proceedings before different licensing authorities applications for the grant or renewal of licences are dealt with whilst criminal charges are outstanding before applicants does not mean that it was not open to the second defender to follow the procedure he did in the present case or that it was not open to the Committee to find sufficient reason for the late lodging of an objection in the circumstances it founded upon. In our opinion it is also entirely clear from the terms of the fifth paragraph in the Statement of Reasons why the Committee reached the decision that it did.

[26] The second main plank of the submissions on behalf of the appellant was to the effect that the Committee had acted in breach of natural justice by basing its decision to refuse the appellant's application, at least in part, on matters that did not form part of the police objection. In our opinion, the history of what happened during the Committee's meeting on 10 March 2011 is of importance. We have sought to analyse this already. In the third paragraph in the Statement of Reasons (quoted in paragraph [9] above), the Committee notes that the appellant had been convicted under the two charges under the 1967 Act. It then records that the Committee was told by the representative of the Second Defender that the appellant had been convicted following an incident on 7 February 2010; that the incident had taken place in a flat owned by the appellant, which was occupied by a female tenant; that the police had been called to the house by the female tenant, who had told the police that the appellant was inside the flat and was refusing to leave; that the female tenant had been very distressed; and that when the police had entered the flat the female tenant was found to have locked herself in her bedroom. The appellant had subsequently been arrested.

[27] The following paragraph of the Statement of Reasons records Mr Batters' response to what had been said on behalf of the second defender. The terms of that response do not record any challenge to the facts spoken to by the second defender's representative when he first spoke to the objection. Nor, during his submissions to this court, did counsel for the appellant suggest that any of the factual matters, as we have summarised them, were disputed by the appellant.

[28] In our opinion, all that was said by the second defender's representative when he first addressed the Committee was unexceptionable and can fairly be described as placing the appellant's convictions in context. What was said amounted to no more than informing the Committee of when, where and in what circumstances the appellant came to be arrested and to commit the two offences of which he was convicted. In these circumstances no valid objection can be taken to such information having being placed before the Committee or relied upon by the Committee in reaching their decision. In particular what was said by the second defender's representative cannot properly be described as amounting to an "ambush".

[29] What followed thereafter broadened the scope of the hearing. Mr Batters, no doubt on the instructions of the appellant, set out in some detail why the appellant had gone to the flat at 20 Walker Street and what had happened when he was there. What Mr Batters said is summarised in the eighth and ninth paragraphs of the Statement of Reasons. As the following paragraph makes clear, the second defender's representative then addressed the Committee further. In doing so he amplified upon what he had said earlier and challenged a number of the contentions that had been advanced on the appellant's behalf by Mr Batters.

[30] It was submitted by counsel for the appellant that during the course of the hearing the second defender's representative went beyond the scope of the objection. We accept that he did so, but only when he was replying to the submissions advanced by Mr Batters on the appellant's behalf. In particular what was said in response to Mr Batters' submissions appears to have been intended to counter Mr Batters' assertion that the appellant had not been present for "evil purposes". In our opinion, all that is recorded as having been said by the second defender's representative in reply to Mr Batters' submissions can be said to arise out of and follow naturally on those submissions. For that reason we are not persuaded that any breach of natural justice occurred. Submissions having been made by Mr Batters in the terms they were, the Committee was, in our opinion, entitled to have regard to those submissions and what was said by the representative of the second defender in response before they decided whether to grant or refuse the appellant's application and cannot be said to have exercised their discretion in an unreasonable manner by doing so. Insofar as there was any conflict between the submissions on behalf of the second defender and those on behalf of the appellant, it was a matter for the members of the Committee which submissions they preferred.

[31] For these reasons we do not consider that the sheriff erred in law in any respect and the appeal against the decision of the sheriff falls to be refused.