Scottish Sheriff Court Decisions

JUDGMENT OF SHERIFF A. GRANT McCULLOCH

RICHARD POLLOCK -v- DUNDEE CITY COUNCIL, & ORS

B179/06

Dundee, 10 October 2006

The Sheriff having resumed consideration of the cause, sustains the first plea of the respondents, repels the first and second pleas in law for the appellant, and dismisses the appeal.

NOTE :

This is an appeal, by way of summary application, under the Civic Government (Scotland) Act 1982. The appellant seeks to reverse the decision of the respondents, a local authority, dated 30 March 2006, whereby the respondents refused the appellant's application for a Licence for a House in Multiple Occupation, in respect of subjects known as and forming 26D Seafield Road Dundee.

Parties had very helpfully agreed a joint minute of admissions, which agreed the facts of the matter. Put briefly, the appellant had instructed an agent, Jack Reavley, to deal with all matters associated with letting the subjects to tenants. Mr Reavley was appointed property manager, and in that capacity carried out several tasks which involved application to and correspondence with the respondents in respect of the property. On behalf of the appellant, Mr Reavley lodged an application for a Licence for a House in Multiple Occupation on 10 October 2004. The respondents thereafter corresponded with Mr Reavley in connection with the application, and wrote to the applicant and to Mr Reavley on 20 March 2006 advising that a licence application would be considered at a meeting of the respondents committee on 30 March 2006.

Letters of objection to the granting of the application were received, and copied to Mr Reavley. The application was considered at the meeting on 30 March 2006, when one objector attended and made representations. Neither the appellant nor Mr Reavley attended. It was accepted by the parties that intimation had been received by both the appellant and Mr Reavley, but that Mr Reavley had failed to diarise the meeting, and the appellant did not attend, having delegated all matters to do with the licence application to Mr Reavley. At the meeting the licence application was refused by the respondents. Subsequently Mr Reavley applied for a statement of reasons, which was supplied by letter dated 21 April 2006.

This appeal was lodged on 30th May, and the respondents immediately took a preliminary plea to the competence of the appeal. It is in the following terms:-

The appellant having failed to follow all such procedures as were made available to him for stating his case to the respondents in terms of paragraph 18 (2) of schedule 1 to the Civic Government (Scotland) Act 1982, the appeal should be dismissed as incompetent.

The parties were further agreed that if this plea was upheld, then the appeal should be dismissed, but if the court repelled that plea, the appellant's first and second pleas in law should be upheld, the respondents decision to refuse the licence application reversed, and the application should be remitted back to the respondents for fresh consideration. Accordingly the success or otherwise of the appeal is determined by my view of the preliminary plea.

The starting point is clearly the Civic Government (Scotland) Act 1982. The procedure is covered by schedule 1 to the act. For the respondents I was taken to paragraph 4(2) which gives the authority discretion to allow the applicant or objector the opportunity to be heard, and set down the procedure for intimation. In this case the respondents gave the appellant, and his agent, the opportunity to be heard by the letter of 20th March. There was no response to this letter, and no appearance at the meeting. The application was refused in terms of paragraph 5, finding that there was other good reason for refusing the application, namely overprovision. The appellant through his agent sought reasons in terms of paragraph 17 and then lodged the appeal in terms of paragraph 18.

The relevant parts of the paragraph are in the following terms:

18 (1) Subject to sub-paragraph (2) below, a person who may, under this schedule, require a licensing authority to give him reasons for their decision may appeal to the Sheriff against decision.

(2) A person shall be entitled to appeal under this paragraph only if he has followed all such procedures under this schedule for stating his case to the licensing authority as have been made available to him.

The position of Respondents was quite straightforward. The appellant had not followed all the procedures available to him for stating his case as he had not attended at the meeting of 30th March. Neither had his agent, Mr Reavley. Further, the appellant had failed to ensure that his agent was attending, so that was a degree of culpability on the appellant. These failures had precluded him from stating his case at the meeting, where an objector had attended and addressed the meeting. Accordingly the appellant fell within the category described in paragraph 18 (2). He could not proceed with this appeal.

For the appellant I was reminded that paragraph 1 to the schedule anticipated the involvement of an agent. Indeed the authority corresponded with Mr Reavley, and with the exception of the intimation of the meeting, did not correspond with the appellant. The appellant was entitled to assume that his agent would attend the meeting, and accordingly the appellant himself had not failed to take advantage of the procedures available to him for stating his case. The question was posed as the whether if an agent appeared and the appellant did not appear, and in appeal was then marked against the decision of the meeting, would the authority be able to take a similar preliminary plea to this one, on the basis that the appellant himself had not appeared? That was surely a nonsense. I was asked to consider what was the purpose of the section. Surely it was not intended that by failing to attend, or by assuming that an instructed agent would attend, the committee's decision was final and unappealable. Effectively the appellant's position was that it was not his failure, but that of his agent and that therefore the appeal was competent. I was told that there was no similar provision to paragraph 18 (2) in liquor licensing applications, and ordinary court procedures are also different.

There is no doubt in my mind that by failing to attend, and by Mr Reavley failing to attend, the appellant did not avail himself of the opportunity for stating his case to the authority. The appellant cannot ignore the law of agency. The appellant consented to Mr Reavley acting on his behalf, so as to affect his relations with third parties, such as the respondents. However harsh the outcome may be, there is an express provision within the schedule that an appeal is only available to those who follow the procedures.

No authorities were found on this point. Those that considered the relevant paragraph tended to turn on their facts, such as intimation not being received. The notes to the schedule, contained in the Parliament house book, at page E 2 -160 suggests that paragraph 18 (2) "would appear to mean that where an applicant.... does not avail himself of the opportunity to be heard by the authority in relation to application.... he would not be entitled to appeal against a decision at first to him...... This provision makes it important that parties avail themselves of every opportunity to state their case to the authority prior to any decision being made." It is only proper that those seeking to obtain licences ensure that all steps are taken to put their case forward to the authority. The Courts cannot be used as a resource of further appeal, where the opportunity to put forward argument in support of the application has not been taken. Indeed paragraph 18 goes on to restrict the court's ability to uphold an appeal. An appeal can only succeed if the Sheriff considers that in arriving at their decision the licensing authority erred in law, or based their decision on any incorrect material fact or acted contrary to natural justice, or exercise their discretion in an unreasonable manner. There is no scope for new evidence.

In my view there is merit in the preliminary plea advanced by the respondents. Accordingly I shall sustain it, and in terms of the agreement reached by the parties, I shall

repel the appellant's first and second pleas in law, and dismiss the appeal.