Scottish Sheriff Court Decisions

B92/05

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

SHERIFF G J EVANS

in causa

BRYAN ANDERSON AND MRS ANN ANDERSON

residing at

Villa Dray, 93a Hepburn Gardens, St Andrews, Fife

APPELLANTS

against

FIFE COUNCIL

County Buildings, Cupar, Fife

RESPONDENTS

 

CUPAR, 22 March 2006. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

1. The parties are as designed in the instance
2. The respondents considered the appellants' application for use of the appellant's premises at 14 Lawhead Road West, St Andrews as a house in multiple occupancy at the East Fife Area Regulation Sub-Committee meeting on 18 August 2005. In reaching their decision, the respondents' Sub-Committee had had regard inter alia to letters from various objectors, as per the appellants' first Inventory of Productions, Nos 8 to 23, to which reference is made brevitatis causa. In general, these objections related to concerns regarding parking, noise and disturbance from the movement of vehicles, potential noise and disturbance from residents and the suitability of the area for the licensing of a house for multiple occupancy.
3. The appellants bought the property in 2005 with a view to conversion for letting to 4 or 5 tenants. They obtained the necessary consents for conversion into 4 self contained rooms, each with an en suite shower room plus communal kitchen and lounge. Having lodged an application for a license to use the property in the manner envisaged, ie for multiple occupancy, the appellants proceeded with the conversion.
4. The appellants have modernised the premises to a high standard. The house has a garage and the appellants intend to construct off-street parking for an additional 4 cars. Provisional tenancy offers have been made to 4 3^rd year students at St Andrews University conditional on the appellants obtaining the necessary license. Any formal tenancy agreement would be as per number 2 of the appellants' first Inventory of Productions, obliging a tenant not to cause nuisance or annoyance to the landlord, other tenants or neighbours, not to keep pets and to keep the garden tidy. The appellants have expended significant sums on the property and as they live locally would be in a position to keep a "hands on attitude" to maintenance of the property.
5. At said meeting certain of the objectors spoke to their objections. In particular it was suggested to the respondents that Lawhead Road West was a quiet residential area and was unsuitable as a location for student dwellings. The objectors advised of their concerns regarding parking and the movement of cars and the noise that would produce. They further expressed concerns regarding potential noise and disturbance.
6. Following on said meeting, the decision was taken to refuse the appellants' application and the respondents issued written reasons for said refusal as per their letter of 25 August 2005 (vide No 6 of the 1^st Inventory of Production for the appellants), ie having regard to their location, character and condition of the premises and the nature and extent of the proposed activity. The statement of reasons stated as follows:-

 

"The Sub-Committee considered the information before it and were concerned in particular about the suitability of the location of the premises in which it was proposed to carry out this activity. In his representation at the meeting Mr McIntosh drew the Sub-Committee's attention to the map depicting the types of households in Lawhead Road West and Lawhead Road East. Of the 55 dwellings, 36 were the residences of retired elderly persons amounting to some 65% of the household type there. In her letter of objection Mrs Elizabeth Smith referred to the established residents of the area being in the main elderly retired people who had moved there to ensure a quiet haven for their retirement. Mr Michael Joy in his letter also said that Lawhead Road West is a very quiet residential street with an above average occupancy of retired elderly residents and one or two handicapped or disabled residents. He expressed his strong belief that Lawhead Road West is wholly unsuitable as a location for student dwellings. In her letter of objection Mrs Sibbett also echoed these views and commented on the community spirit which existed. Reference is made to the residential character of the area and ten of the sixteen letters of objection.

 

One of the concerns expressed in a number of letters of objection related to the possibility of student tenants having cars and the consequences of thoughtless or inconsiderate parking of these in this relatively narrow residential road.

 

The Sub-Committee also noted that a number of the objectors had also expressed their concerns about the possibility that student accommodation in their midst would introduce disturbance and noise to their community.

 

The Sub-Committee did note the high standards to which the house would be refurbished but in considering the information before them they were of the opinion that the use of the house at 14 Lawhead Road West as a house in multiple occupation was not suitable or convenient, having regard to the location of the house in a residential area, housing a community of mainly elderly residents. In its opinion the ground of refusal set out in paragraph 5(3)(c)(1) of Schedule 1 to the Civic Government (Scotland) Act 1982 applied.

 

The Sub-Committee were also concerned as to the nature and extent of the HMO use, in this case occupation of the house by 4/5 students and the impact that this would have on the Lawhead Road West community with regarding to parking, vehicle movement, noise and disturbance. The Sub-Committee were of the opinion that the ground of refusal set out in paragraph 5(3)(c)(2) of Schedule 1 of the 1982 Act applied.

 

The Sub-Committee following a vote by a majority of 5 votes to 2 refused the application."

 

FINDS-IN-LAW:-

 

1. The respondents, by founding their decision on the information supplied to them in the objectors letters Nos 8 to 23 in the appellants' 1^st Inventory of Productions and further oral representations thereon, have not exercised their discretion in an unreasonable manner.

 

Accordingly Sustains the respondents' plea-in-law and Refuses that of the appellants; Refuses the first crave for the appellants and Decerns; Finds the appellants liable to the respondents in the expenses of the action as the same shall be taxed.

 

NOTE:-

 

BACKGROUND

 

This was an appeal by a husband and wife as owners of a house at 14 Lawhead Road West, St Andrews (which they have had extensively adapted to let out as student accommodation), against the refusal by the East Fife Area Regulation Sub-Committee to grant them a license to run the property as a house in multiple occupation for 4/5 people (vide the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000 - PHB E2-196). Without such a decision they may not proceed with their plans for student letting at that property. The appeal proceeds under Schedule 1, para 18 of the Civic Government (Scotland) Act 1982 as amended. The case called before me for a hearing on 13 January 2006. The appellants were represented by Mr Glass, Solicitor, Dundee and the respondents by Miss Barrie, Solicitor, Fife Council, Cupar. Mr Glass explained that as condescendence 4 in the Open Record, No 5 of Process, was now being admitted by the respondents, it was not necessary for me to hear evidence on the matter and the case could be dealt with purely on the basis of submissions. I have accordingly made Finds-in-Fact on that basis and on the basis of the facts set out in Mr Glass's written submissions.

 

SUBMISSIONS FOR THE APPELLANTS

 

Mr Glass submitted that the first ground of refusal, viz the unsuitability and inconvenience of having a house in multiple occupancy in a residential area, housing a community of mainly elderly residents, had no proper factual basis. I was referred to the case of Leisure Inns (UK) Limited v Perth and Kinross District Licensing Board 1991 SCLR721 for the necessity for both adequate reasons to be given and for there to be a proper basis in fact for the reasons given. Mr Glass submitted that the difficulty in the reasons in the instant case was similar to the difficulties existing in the above case of Leisure Inns etc. It was accepted that what was required was to look at the two grounds of refusal. The first ground under Section 53(1)(c), namely that the location in a residential area was unsuitable or inconvenient, simply did not stack up, particularly having regard to the fact that there had been such a license for a house in Lawhead Road East for a period of 2 years. Similarly there was no rationale for looking only at Lawhead Road West and Lawhead Road East. As could be seen from the plan in the case, there were other houses and indeed a primary school adjacent to the premises to the west. Similarly there was no factual basis given as to why a house in multiple occupancy should not be in an area occupied by a number of elderly people. Similarly the location of the premises in a residential area did not provide a basis or indeed a reason for refusal. A house in multiple occupation was by its nature being used for a residential purpose. As to the second ground of refusal, namely the likelihood of disturbance due to parking vehicle movement and noise, again there was no basis for this. In the instant case there was another premise with a license for a similar number of authorised occupants within close proximity. The respondents were unable to point to any particular difficulties with these premises to provide a factual basis to form what was otherwise a speculation that there would be disturbance regarding parking, vehicle movement, noise etc. I was referred here to the case of Risky Business Limited v City of Glasgow Licensing Board 2000 SLT923 where the Board's view that there was likely to be violent conduct from male patrons when under the influence of drink towards women performing as exotic dancers was dismissed as speculation in the absence of adequate material before the Board to justify such a conclusion. Such an outcome should follow here. With regard to parking, there was simply no justification for the conclusion that the respondents reached. Taking into account the garage, 5 parking spaces were to be made available and there was no indication as to whether any of the proposed tenants would have a car in any event. No consideration appeared to have been given as to any particular condition regarding parking. Other residents parked in the street without any inherent difficulty and there was no material to justify the view that vehicle movements might cause disturbance. Anyone moving off in the morning to university or work would just be like many of the other residents in the area. No parking difficulties were expressed in respect of 7 Lawhead Road West. Finally in relation to noise and disturbance, this again appeared to be mere speculation and was not backed up for example by experience in relation to the premises at 7 Lawhead Road West.

 

Mr Glass then turned to attack the adequacy of the Statement and Reasons itself. Under reference to the cases of Robertson v City of Edinburgh District Licensing Board 1995 SLT107 at 108 and Wordie Property Company Limited v Secretary of State for Scotland 1984 SLT345 at 348, it was submitted that the informed reader should be able to understand without any dubiety, from the Statement of Reasons, what the reasoning was that led to the decision and what the material considerations were that were taken into account in reaching that decision. In the instant case, the informed reader was given no real reason for the Committee's conclusion. The Statement of Reasons had substantial parts which related to the procedure and the identification of objectors. There was some information in the bottom half of page 2 of the letter indicating the information before the Committee in what certain people had to say. At the top of page 3, the Committee then jumped to an assessment that the location of an HMO license in the locality was neither suitable nor convenient having regard to the residential nature of the area and a preponderance of elderly residents. They did not state why or how they had come to that view or the information upon which they had formed that view. In particular they did not balance that view with the fact that there was already a house with such a license in existence in the near locality and had been so for a period of 2 years.

 

In page 3 of the letter, the Committee indicated concern regarding the nature and extent of use and the impact in regard to parking, vehicle movement, noise and disturbance. They then assessed that the nature and extent of the proposed activity had been established. They failed to say what the difficulties with parking were, or to assess how these difficulties arose, particularly having regard to the submission on the part of the appellants that some 5 parking spaces would be available. They failed to indicate what vehicle movements would cause difficulties and in particular what hours these might occur at and at what volume. Indeed they did nothing to reflect here that the vehicle movements might be beyond that of a normal house. Again in relation to noise and disturbance, there was nothing to assess that there was any evidence before them, or indeed any local knowledge used, to suggest that noise and disturbance would occur. All that they had was the speculation that some, but by no means all of the objectors, indicating that there might be a nuisance. In this regard, the case fell on all fours with Leisure Inns supra which, along with the case of Risky Business supra was authority that one simply could not speculate but must have a basis to do so. The Statements of Reasons simply did not indicate what the Committee did or did not take into account and gave no basis as to the facts upon which they laid their decision and the information that they took into account in so doing. It seemed plain that the informed reader could not really arrive at the rationale of the respondents' Committee in arriving at the decision.

 

For these various reasons, I was invited to sustain the appeal and the appellants' plea in law. As in the case of Risky Business supra, as there was no factual basis for the Committee to arrive at the decision, the case should be remitted back to the respondents with an instruction to grant. I was also referred in respect of the adequacy of written reasons to the additional case of WGR Trading Limited v Highland Licensing Board 2003 SLT1019.

 

SUBMISSIONS FOR RESPONDENTS

 

In reply, Miss Barrie submitted that the local authority had been given a wide discretion to decide such applications, subject to there being material before them to justify their decision one way or the other. 'Wordie' supra set out the correct test in that context when it stated (at page 348 top): "(the decision) will fall to be quashed ... if, where it is one for which a factual basis is required, there is no proper basis in fact to support it." To be overturned, a decision of the respondents had to be a decision that was so unreasonable that no reasonable authority would have reached it (vide Ranachan v Renfrew District Council 1991 SLT625). In the instant case, the Committee had not taken into account any irrelevant issues. The Statement of Reasons set out what they had had regard to and what their concerns were about the suitability of the house. There was nothing in the appellants' pleadings which specifically challenged the adequacy of the Statement of Reasons. In determining the unsuitability of the house, the Committee were entitled to take into account the character of the locality. Page 2 of the Statement of Reasons set out the factors placed before them and the information which was clearly before the Committee. Without going into detail about the content of the various letters lodged by the objectors, they did supply sufficient information about the character of the locality and the type of housing there. The impact of parking was addressed in the Statement of Reasons and in the letters from the objectors. The fact that a house at 7 Lawhead Road West had already been granted such a license was, it was suggested, a neutral fact that did not form part of the material before the Committee and was not mentioned by any of the objectors. There was nothing to suggest that the existing bed and breakfast catering largely for tourists was in any way a comparable use to what the appellants intended to do. The material adequate for the Committee's decision could be found in the 16 letters of the objectors as well as the responses made by the appellants at the hearing. A lot of the letters mention the residents' concerns about parking, eg numbers 19 and 22. The Committee took the view that parking would still occur outwith the curtilage of the property. There was also material before the Committee to show that students had different lifestyles from the rest of the residents, for example letter number 16 which stated:-

 

"As stated previously this is a residential neighbourhood with the usual ambience of families of growing up. With a possibility of several independent people living together with their obvious different lifestyles there could certainly be some major differences. Lawhead Road is also part of a fairly busy bus route which because of the cars already being parked outside neighbours houses at the moment these buses have great difficulty in passing. Never mind the other vehicles such as refuse lorries and emergency vehicles. If there are to be St Andrews students in this house, then they will almost certainly have cars, as will their friends that visit."

 

That was an example of the kind of material that had been before the Committee. There was thus a fair body of material before them about the existing character of the neighbourhood and the effect that would follow the grant of the application.

 

As to the content of the Statement of Reasons, it was clear from how it was expressed the exact basis on which the Committee had based its decision. It should be borne in mind that a Statement of Reasons was not to be interpreted like a contractual document setting everything out in great detail. It was just an indication how the decision had been arrived at and that was clear here.

 

If I were against that comment Miss Barrie invited me to remit the matter back to the respondents for re-consideration. I was referred to Matchurban Limited v Kyle and Carrick District Council 1995 SLT505 for authority that there had to be compelling reasons for removing from a licensing authority its responsibility for making such decisions.

 

DECISION

 

(i) Sufficiency of Material Before The Committee

 

In my view the submissions for the respondents are to be preferred here. While I accept the ratio of the cases cited to me by Mr Glass (ie 'Leisure Inns UK Ltd' supra and 'Risky Business Ltd' supra) these were both cases involving appeals under the Licensing (Scotland) Act 1976. None of the permitted grounds for refusing a licence under that Act is expressed in terms of possibility (vide Section 17(1)(a) to (d)). That is not so under the Civic Government (Scotland) Act. It expressly provides the following grounds inter alia for refusal, at para 5(3)(c)(d) of Schedule 1 to the Act:-

 

"... where the license applied for relates to an activity consisting of or including the use of premises ... , those premises are not ... suitable or convenient for the conduct of the activity having regard to -

(i)                  The location, character or condition of the premises ... :

(ii)                The nature and extent of the proposed activity:

(iii)               The kind of persons likely to be in the premises ... :

(iv)              The possibility of undue public nuisance: or

(v)                Public Order or public safety ..."

In my view "the possibility of undue public nuisance" is not as high a test for refusal as the use of the premises being "likely to cause undue public nuisance". The hearing before a Licensing Committee of any description cannot be, nor is it meant to be, an exhaustive fact finding exercise. By way of contrast, the case of 'Wordie Property' supra had as its background a 6 week long public planning enquiry which contained "many disputed questions of fact and law of some importance". The reporter was thereafter bound to make Findings-in-Fact, in which context The Lord President (Emslie) made "the broad distinction between Findings-in-Fact, including inferences of fact, and expressions of opinion, reasoning and value judgements on planning merits". Those distinctions also operate in the context of a Licensing Committee in the sense that they would have to disregard mere expressions of prejudice, or opinion, or speculation, in favour of something of more evidential worth. It was argued in 'Leisure Inns UK Ltd' supra that to say that there was a "strong possibility" of damage to amenity was not sufficient to meet the test of a balance of probabilities. Lord Ross found it unnecessary to deal with that argument (vide page 726F), but Lord Morrison stated that "... the reasons given by the appellants do not disclose in what respects they consider that the use of the premises would be likely to have a detrimental effect on the occupation of the dwellinghouses to which they refer ...." That appears to suggest the test of a balance of probability in that context. In 'Risky Business Ltd' supra the Licensing Board refused the license for table dancing as the mostly male patrons' reaction to that kind of entertainment "would be varied and unpredictable. The patrons could include individuals who under the influence of alcohol could be disposed to irrational and sometimes violent and anti-social conduct. Potentially this could include violent conduct of a sexual nature against women." (vide page 926C). The Sheriff took the view that this was mere speculation on the part of the Board and that view was upheld on appeal. The appeal court stated "... whether there was a basis in knowledge and experience or not, these expressions and views are all couched in terms of possibility or the like, without any conclusion in terms of likelihood, or frequency, or general probability." (vide page 927J). These type of comments do not, however, apply in the instant case. The Act in question allows the Committee to consider the possibility only of public nuisance and that is what they have done from the Statement of Reasons. It talks about the possibility of students having cars and the consequences of thoughtless or inconsiderate parking of these and the possibility that student accommodation would introduce disturbance and noise into the existing community. I appreciate that the possibility of public nuisance does not feature as a specific ground for refusal in the Statement of Reasons but it is obviously being used by the Committee to form their assessment of the suitability of having such premises in this particular location and in its assessment of the impact of such premises on the location. If it was considered that the real point was not the standard of proof so much as the presence or absence of material, then, while a lot of the letters do simply consist either of direct questioning or the expression of opinions or prejudice, some are actually based on experience. I would highlight in particular numbers 9, 14, 15 and 23. Number 9 from Mr Auchterlonie, states:-

 

"Experience of HMOs in other locations of the town clearly demonstrates a very clearly perceptible reduction in the tidiness of the precincts of such properties - for example poor upkeeps of the dwellinghouse, minimal maintenance of the garden grounds and, in significant number of cases leaving of emptied dustbins (wheelie bins) on the pavement for days. The Lawhead Road area is kept in a good state of tidiness and thus I object to the granting of the request that HMO license on the grounds that there will be reduction in the quality of the visual aspect and quality of life generally in the area."

 

That then is a letter based on his experience of HMOs in other places in St Andrews. The number 14 from Mrs Smith states:-

 

"Most residents of other areas of the town complain bitterly - and even move out - because of the disruption the students cause when they move into a neighbourhood with excessive noise, anti-social behaviour and a general lack of consideration for others. Inevitably, the gardens, windows and general appearance of the house fall below the standard of the neighbouring properties which, in turn, suffer from a drop in value. This is a serious concern for many of the residents whose home is their greatest asset."

 

She is therefore reporting there the experience of others in St Andrews of the effect that students can have in a neighbourhood. Mr Joy's letter number 15, speaks of his own experience of having students in the family. He stated as follows:-

 

"Lawhead Road West is a very quiet residential street with an above average occupancy of retired elderly residents and one or two handicapped/disabled residents. My wife and I have lived in our home in Lawhead Road West for 50 years during which time we have had two children of our own, both of whom were students themselves. During our support in their student years, we have observed their friends (and themselves) at many social (occasionally anti-social) behaviour. It is with this experience that I strongly believe that Lawhead Road West is wholly unsuitable as a location for student dwellings. In fact, I am already acutely aware of the upset and concern at the prospect of the arrival of students in Lawhead Road West has caused my fellow residents."

 

That then is something based on his own experience. Number 23, a letter from Mrs Richmond, is also based on her own experience and she states as follows:-

 

"I have personal experience of letting a house to students. My husband and I were in a tied house. So, with a view to retirement we modernised a small bungalow in a residential area such as this. With regret - I now say - we let the house to students. Finally, we found that we could not live in that house for our retirement. Perhaps, more importantly, we realised that for 8 years we had subjected the neighbours to a variety of unsought trauma."

 

In my view these letters provide adequate material before the Committee to show the impact of students on a neighbourhood, viz their noisy behaviour and untidy habits, and it is material based both on direct and indirect experience of such behaviour and in one case the very similar case of a house, rather than a flat, being taken over and used by students.

 

It was repeatedly stressed by Mr Glass that the existence of a similar license for the premises at 7 Lawhead Road East granted by the respondents on 1 July 2003 with an expiry date of 14 October 2005 (vide No 6/1 of Process) showed what a nonsense it was for the Committee to hold that a license in such a residential area was unsuitable or inconvenient when it was there already. I agree with Miss Barrie, however, that such a state of affairs must be viewed as having a neutral effect. I accept that there is no onus on the appellants to satisfy the Committee that they should grant them a license but there was simply no material to say one way of another whether or not 7 Lawhead Road East had ever operated at all during this time as a house in multiple occupation, never mind what the effect of such an operation had been. The fact that no objections were lodged in respect of it could simply mean that it had slipped through unnoticed, rather than that there was never any real objection to it. It was simply not a factor in the Committee's deliberations and there was no material one way or the other to indicate that it should have been. As to the Bed and Breakfast run from 8 Lawhead Road West, on the face of it, that would be a more seasonal operation likely to attract more mature visitors. Insofar as it did feature before the Committee, there were at least 2 letters dealing with it. Number 16 for example mentioned that:-

 

"We also have one fairly large B and B with at least 4 letting rooms and we can see the effect of this on our residential road. A further HMO would really not be suitable for this location."

 

And also in Number 19 which states:-

 

"The street at that point is already subjected to parking to allow the guests at the Bed and Breakfast establishment just along the road to leave their vehicles. The additional parking would make things worse."

 

I agree in short, with Miss Barrie that the letters as a whole establish quite firmly the existing nature of the locality and why that would be put under threat by the proposed change in use, given the known character of student tenants and the detrimental effect their presence has had in other neighbourhoods in St Andrews. They also disclose quite clearly that additional thoughtless parking in the street could only make matters worse in what was already a bus route with parking problems.

 

(ii) Sufficiency of Statement of Reasons

 

I accept that the test here is that referred to in 'Wordie Property' supra ie there have to be proper and adequate reasons for a decision so that the decision leaves the informed reader "in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it." Looking at the Statement of Reasons in this case, the reasons themselves are first highlighted in the opening paragraph, viz the Committee took the view that, having regard to (1) the location and character of the premises and (2) the nature and extent of the proposed use, the premises themselves were not suitable or convenient for such a purpose - ie what were the statutory grounds in effect. They then set out the material on which that was based, viz the 16 letters from the objectors in both Lawhead Road West and Lawhead Road East, the verbal representations made at the hearing before the Committee and the copy plan of Lawhead Road East and West with colour coded indications of the type of household at each address. They then set out their understanding of what the nature of the locality was from the information supplied to them by the residents. There were 55 separate houses in all in Lawhead Road East and West. 36 out of the 55, that is 65%, were lived in by retired, elderly residents who had chosen to live there for its quietness. Lawhead Road West in particular was a very quiet residential street with an above average occupation of retired, elderly residents and one or two handicapped or disabled residents. Lawhead Road West, with its strong community spirit and large percentage of retired persons, would be wholly unsuitable for absorbing houses lived in entirely by students. 10 out of the 16 letters from the objectors stressed the residential character of the area. The Committee then set out the nature of the concerns specified by some objectors, viz (a) the possibility of resident students having cars leading to inconsiderate parking in a relatively narrow residential road and (b) the possibility that student accommodation would introduce noise and disturbance into their community. Against that background, the Committee found that, as the house was located in a residential area housing a community of mainly elderly residents, its proposed use as student accommodation was not suitable or convenient. They also found that a house that was going to accommodate up to 4 or 5 students would adversely impact on the level of parking and vehicle movements and the amount of noise and disturbance. An informed reader of such a letter would be in no doubt that the reasons for the decision were two- fold, viz (i) the existing nature of the area, viz a community of mainly elderly residents seeking as quiet an environment as possible, was incompatible with having in its midst a house given over to those with no such aims or requirements and (ii) if the house were full to capacity with student tenants, this would lead to increased parking difficulties and increased noise and disturbance. The material on which both those reasons are advanced is to be found in the material outlined by the Committee, viz the letters, the representations and the plan. I cannot see the difficulty that Mr Glass has outlined, viz that the informed reader cannot really arrive at the rationale of the Committee in arriving at their decision. Again I preferred and accepted the submissions made by Miss Barrie on this matter. I agree with her that the letters as a whole establish quite firmly and fully the existing nature of the locality and why that would be under threat by the proposed change in use, given the known character of student tenants and the detrimental effect their presence has had in other similar neighbourhoods. They also establish quite clearly that additional thoughtless parking in the street could only make matters worse in what was already a bus route with parking problems.

 

(iii) Outcome of Appeal

 

As I have decided to refuse the appeal, there is only one possible outcome. Had I, however, found for the appellants, I agree with Mr Glass that rather than send the matter back to the Committee for their reconsideration the appeal would simply have been granted. That however is only on the footing that I had found that there was no material before the Committee enabling them to refuse the application as was the case in 'Risky Business' supra. In that event I would have granted the application but attached to it a number of conditions, such as limiting the type of students to 3^rd or 4^th years only, limiting the number of cars being used by the occupants to the number of parking places available in the property and ensuring that certain obligations were contained in any lease so as to ensure lack of any noise and disturbance in the neighbourhood. There would also have been a general condition that the appellants would meet any reasonable safety and environmental conditions which in the discretion of the respondents should be attached to my grant of the application. Some such formula could have been used to prevent the matter having to go back to the Committee for reconsideration, contrary to the submission of Miss Barrie in that regard.

 

As the respondents have been successful in the appeal, I have awarded expenses in their favour as the same shall be taxed.