Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT ABERDEEN.

 

B907/05

 

JUDGMENT

 

of

 

Sheriff Douglas J. Cusine

 

in

 

Summary Application by

 

PATRICK HART

 

against

 

ABERDEEN CITY COUNCIL.

 

Under the Civic Government (Scotland) Act 1982 Schedule 1. Paragraph 18.

 

 

ABERDEEN, 23 June, 2006.

 

The Sheriff, having resumed consideration of the cause, sustains the first plea-in-law for the applicant and in terms of his first crave grants the same to the extent of reversing the decision of the respondent's Licensing Committee dated 24 October 2005 to refuse the applicant a licence and grants the second crave to the extent of remitting the matter to the respondent's Licensing Committee to grant the applicant a licence for a house in multiple occupation subject to a condition that the respondents' Environmental Health's Houses in Multiple Occupation Unit monitors the situation prevailing at the applicant's subjects at 11 Orchard Walk, Aberdeen and reports any breaches to the said Committee; Reserves meantime the question of expenses; Appoints parties to be heard thereon on 7^th July 2006 at 9.30 am

within the Sheriff Court, Sheriff Court House, Castle Street, Aberdeen.

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NOTE.

 

This is a summary application under the Civic Government (Scotland) Act 1982 Schedule 1 paragraph 18 in which the applicant seeks to reverse or modify the decision of the respondents' Licensing Committee dated 24 October 2005 in which they found the applicant not to be a fit and proper person to hold a licence for a house in multiple occupation and refused to grant him such a licence.

 

 

Background.

 

The applicant is the heritable proprietor of subjects at 11 Orchard Walk, Aberdeen ("the subjects"). He applied to the respondents for a licence to permit the subjects to be in multiple occupancy. The respondents' Licensing Committee having heard from the applicant, Andrew Lamb, a senior environmental health officer with the respondents, four objectors, and having considered 5 validly-constituted objections from inter alios the four objectors, refused the licence. It is against that refusal that the applicant now applies by summary application for a reversal or modification of the decision, or for the matter to be remitted to the respondents to allow their Licensing Committee to reconsider the matter.

 

 

Submissions for the applicant.

 

Mr Campbell advised me of the background which was that between 2002 and 2004, the subjects were leased by the applicant to 5 male students, and from September 2004 until June 2005, the subjects were leased by three of these males who in June 2005 were told to quit. Since September 2005, the subjects have been leased to 5 female students.

 

Between 2002 and June 2005, the male students' behaviour disturbed the neighbours, some of whom had written to the respondents and of them, some had appeared before the Licensing Committee.

 

He referred to the Statement of Reasons ("the Statement") which is No. 5/1/2 of Process and also No. 4/1 of Process. Para. 3 of the Statement refers to a letter dated 5 October 2005 from Andrew Lamb, Senior Environmental Health Officer (No. 5/1/6 of Process) which states that the subjects fully complied with the Guidance issued by the Scottish Executive for the grant of a licence for multiple occupancy. The letter makes reference to the complaints by the neighbours, but noted that the tenancy of those whose conduct had given rise to the complaints had been terminated with effect from 31 July 2005. Mr Lamb's recommendation was to grant a licence to the applicant.

 

In para. 3 of the Statement, reference is made to the complaint of Dr. Pappin about noise, parking problems, and rubbish. She had complained directly to the applicant. Para. 3 notes that "a lot of the problems had now been addressed but that this had not happened until the Applicant had made application for a licence."

 

Para. 4 refers to the complaint by Mrs Jaspers about noise and rubbish. She too had complained directly to the applicant. Para. 5 deals with the complaint by Mrs Hewitson about parking which she saw as "the main issue." Para. 6 refers to the complaint by Mrs Grasby who mentioned noise and rubbish, but who regarded the applicant as an "absentee landlord."

 

In para. 7, reference is made to a letter dated 5 March 2005 which was sent by the applicant to the then tenants. That letter is No 6/1 of Process. The applicant had issued a new lease to the tenants (No. 6/6/ of Process), something of which the Committee were aware and reference was made by Mr Campbell to clauses 6 and 6A dealing with Behaviour and Neighbours respectively.

 

Para. 9 seemed to fail to take account of the fact that the complainers indicated that many of the issues had been resolved. The Committee seemed to suggest that the applicant ought to have terminated the lease earlier, and because of a "history of failing to take appropriate action when complaints were made," the applicant was not a fit and proper person and so the licence would be refused.

 

Mr Campbell questioned the basis upon which the Committee concluded that the applicant had a history of failing to take appropriate action. The Committee ought to have known that the applicant would not have been entitled, as a matter of law, to terminate the lease without following the procedure laid down in legislation.

 

He submitted that the Committee ought not to have refused the licence, but should have granted it, subject to a condition that the position be reviewed.

 

In summary, his position was that the complaints were historic and had been addressed; that it is a criminal offence for persons to occupy premises without a licence; that it is not clear what other action the applicant should have taken, other than terminating the lease in accordance with the law, and that the Committee should have followed the recommendation of Mr Lamb their own expert.

 

The test to be applied by the court is set out in section 18(7)(d) of the Schedule to the 1982 Act, viz:- did the Committee exercise their discretion in an unreasonable manner.

 

Mr Campbell referred to the following:- Cummins on Licensing Law in Scotland (2^nd ed,) p. 355; Wordie Property Co. Ltd. v. Secretary of State for Scotland 1984 SLT 345; The Noble Organisation Ltd. v. City of Glasgow District Council (No. 3) 1991 SLT 213; Latif v. Motherwell District Licensing Board 1994 SLT 414.

 

 

Submission for the respondent.

 

Mr Smith for the respondents submitted that the appeal is concerned only with the Statement of Reasons and that Mr Lamb's recommendation does not bind the respondents' Licensing Committee.

 

He referred to the letters of complaint which are dealt with in the Statement in paras. 3, 4. 5, 6. It is clear that the applicant lives in Kemnay and he submitted that the applicant is not on hand to deal effectively with complaints, as the correspondence demonstrates. When the applicant addressed the Committee, he accepted that the reports which the Committee had were damning and that is accepted also in his pleadings. He submitted that the letter of 5 March 2005 (No. 5/2/5 of Process) is not a strong letter and is not a notice to quit.

 

The exercise in which the Committee was involved a balance between a long history of problems caused by the applicant's tenants and a new lease which comes too late. A reasonable landlord faced with the complaints would know what action to take and the applicant had not taken it.

 

The respondents' Committee had to consider all relevant factors and hear all of the witnesses. The Statement makes it clear that that was done.

 

He referred to Wordie and Latif. In Wordie, the court had set out the tests to be applied and having mentioned some, went on to say, "It [the decision] will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed." (Lord President Emslie at 348). In Latif, the court made it clear that it is not for the court to substitute its own views and interpretation of the evidence for that of the decision-making body. (per Lord President Hope at p. 413.) Mr Smith referred to Ranachan v. Renfrew District Council 1991 SLT 625 at 628D where the court said, "In our opinion, it was for the committee to make their own assessment as to whether or not the fact that the applicant had, on the occasion...behaved in the manner outlined...was something which bore upon the fitness of that person to hold a taxi licence."

 

In Mr Smith's submission, the decision of the Committee was proper and that they correctly exercised their discretion.

 

 

Decision.

 

I have decided to sustain the first plea-in-law for the applicant and in terms of his first crave to grant the same to the extent of reversing the decision of the respondent's licensing Committee to refuse the applicant a licence and to grant the second crave to the extent of requiring the respondent's licensing Committee to grant the applicant a licence for a house in multiple occupation subject to a condition that the respondents' Environmental Health's Houses in Multiple Occupation Unit monitors the situation prevailing at the applicant's subjects and reports any breaches to the said Committee.

 

There is no doubt that the Committee was entitled to take a serious view of the complaints about the applicant's former tenants, the male students. In their Statement of Reasons, however, the Committee does not say what weight it gave to the view expressed by at least one complainer that a lot of the problems had by then been addressed, nor is it clear whether the Committee had ascertained from the others who complained that that view was shared. While I accept that Mr Lamb's view does not bind the Committee, the Committee does not say why it decided not to give effect to his recommendation, and they do not say, in particular, why the presence of new tenants would not make any difference to their decision that the applicant is not a fit and proper person to hold a licence. In my opinion, any Committee acting reasonably would have dealt with these issues, and in failing to do so and in failing to take account of the changed circumstances, the Committee acted unreasonably.