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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Valente v. Fife Council [2006] ScotSC 93 (21 November 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/93.html
Cite as: [2006] ScotSC 93
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B101/06
SHERIFFDOM OF TAYSIDE, CENTRAL AND
JUDGEMENT OF
SHERIFF G J EVANS
in causa
ADRIANA VALENTE
residing at
APPELLANT
against
RESPONDENTS
CUPAR,
1. The parties are as designed in the instance.
2.
The respondents considered the
appellant's application for use of the appellant's premises at 8a
3.
The property in question is an
upper floor flat in a small terraced house, the upper storey being provided
with a separate doorway at ground floor level.
The property has a sitting room, kitchen, bathroom and three bedrooms. The appellant intends letting the property to
three tenants at a time. She has rented
it out since September 2004. She
personally manages the premises on a day to day basis. She emphasises to the tenants that they must
respect their neighbours. While
4. The plan and other productions lodged on behalf of the appellant are accurate in their terms.
FINDS-IN-LAW:-
1. The respondents, by founding their decision on the information supplied to them in the objectors' letters attached to their Statement of Reasons, have failed to exercise their discretion in a reasonable manner.
Repels the first and second pleas-in-law for the appellant but Sustains her third plea-in-law; Sustains the first and second pleas-in-law for the respondents but Repels their third plea-in-law; Accordingly Grants the appeal; Reverses the decision of the respondents' East Area Regulation Sub-Committee of 15 June 2006 to refuse the appellant's application for a house in multiple occupation licence for said premises at 8a Park Street, St Andrews without remitting the same back to the respondents' Committee for their reconsideration; Orders the respondents to grant such a licence for occupation by up to 3 persons only at said premises but subject to the following conditions, viz (a) only one car is to be permitted at any one time in respect of all the tenants occupying said premises; (b) waste management plans, including arrangements for end of term disposals, are to be agreed with all tenants; (c) the appellant or her duly appointed agent must respond to all reported incidents arising out of the use of said premises as a house in multiple occupancy within 12 hours; and (d) the appellant must meet all reasonable safety and environmental conditions which in the discretion of the respondents should be attached to their grant of said application; Finds the respondents liable to the appellant in the expenses of the action as the same shall be taxed and Decerns.
Sheriff
NOTE:-
BACKGROUND
This was an appeal by the landlord against the refusal by the East
Fife Area Regulation Sub-Committee to grant her a licence to run her property
at 8a Park Street, St Andrews as a house in multiple occupation for three
people (vide the Civic Government (Scotland) Act 1982 (Licensing of Houses in
Multiple Occupation) Order 2000 - PHBE2-196).
The appeal proceeds under Schedule 1, paragraph 18 of the Civic
Government (
SUBMISSIONS FOR APPELLANT
Mr Murphy dealt with the reasons put forward by the objectors and accepted by the Committee. His submissions largely echoed the way he had set the matter out in the pleadings in the Record, No 7 of Process.
(a) Parking. It was maintained by the objectors that the
perspective occupants of the property would more likely to have cars than a
family but that was not necessarily so.
It was arguable that such occupants were less likely to need parking
spaces than, say, a large family of 6.
If the occupants were students, they would be there for only 30 or so
weeks in the year rather than a full year.
There was no information before the Committee about the magnitude of
parking problems in the area, where parts of
(b) Waste Management. Again the concern in the Statement of Written Reasons that there was a "possibility of HMO tenants failing to properly manage waste and rubbish" was speculation only with no proper basis in fact or evidence and should not have been taken into account by the Committee. This particular property had been let out to 2 tenants for the last 2 years without a single complaint. The appellant would monitor regularly for such problems and take appropriate management steps.
(c) Noise. The position on this factor was exactly the same. There had again been no complaints of any kind during the appellant's ownership of the property and would in any event be managed personally by the appellant if noise problems ever arose.
Mr Murphy then made a general objection in relation to each of these
factors, that none of them had any direct relevance to the suitability or
convenience of the premises for residential use. In any event, Mr Murphy argued, all such
factors could have been dealt with by attaching conditions to the licence or by
suspending or varying it during its lifetime or refusing to renew it at the end
of its 3 year lifespan. The powers
available to a licensing authority provided adequate protection to a
neighbourhood. The reality of the
matter, however, was that the social amenity, character and condition of Park
Street had already been changed through 9 of the 13 properties in the street
already being owned by absentee landlords and there being many HMO properties
in the area around Park Street and in Park Street itself at Nos 2 and 4, which
had had HMO Licences at one point. One
further HMO licence would not mean any significant change to the neighbourhood
and indeed would be in keeping with it.
The decision was therefore perverse in those circumstances. The sub-Committee who met on
"In a small university town where I am informed that
students make up some 30% of the population (presumably in term time), it is
hardly surprising that some central areas close to university facilities will
exhibit concentrations of student accommodation and that this will include many
HMOs. A large student population is
surely one important element of the character of
As was stated at paragraphs 16 and 18 of Production No 8:-
"16. As multiple occupation is a residential use, the proposed change of use would have no effect on the residential character or amenities of the area, thereby satisfying policy H2 of the local plan ...
18. The practical effect of the proposed development would be to permit a third person in a two storey flat, which has the appearance of a terraced house, and which was previously rented to two people. As a house in multiple occupation, a licence is also required and its terms need to be adhered to. Other properties in the area are predominantly in similar residential use, and it no longer has the character of an area of family housing. In relation to sustainability, the proposal would enable an additional person to live within easy walking distance of the town centre and the university, reducing the pressure on accommodation resources elsewhere in the town, or outwith it, where residents are likely to be made more reliant on cars."
I was also referred to Productions 6 and 9 for the appellant, viz planning circular 4/04 and the Scottish Executive Guidance for Licensing Authorities on the mandatory licensing of houses in multiple occupation. While Production No 6 was meant to explain those aspects of the licensing scheme that would be of interest to planners, the comments made were nonetheless of some general value. The purpose of HMO licensing was stated to be the improvement of standards in the private rented sector in terms of both physical accommodation and the management of tenancy issues. The latter factor was described as:-
"The key to tackling the issues which most concerned neighbours of HMOs, such as building maintenance, cleaning, and noise or disturbance. For these reasons, licensing authorities are expected to give equal weight to management issues as to physical standards in deciding whether to grant, renew or suspend a licence." (vide paragraph 13)
And (at paragraph 20) the circular went on to state:-
"Where issues relate to the behaviour of the landlord or tenants, such as maintenance or noise, planners should take account of the controls offered by HMO licencing. They should also be clear that all kinds of people may live in HMO accommodation, and it is not necessarily the case that HMO residents would cause more disturbance than other types of household who occupy the property."
The element of control was also stressed in Production No 9, at Sections 2-3.3 and 3.
The Committee had proceeded under both errors of fact and law. The evidence before them did not entitle them
to conclude that the statutory criteria for refusal had been met. There had been an insufficient factual basis
for their conclusions. The Committee
ought to have proceeded by way of factors (ii) or (iv) in para 5(3)(c) of Schedule 1 of the Act (ie the nature and extent of
the proposed activity and the possibility of undue public nuisance) rather than
(i) (the location, character or condition of the premises). I was also referred to the dicta of Lord
Morison in the Inner House case of The
Noble Organisation Limited v City of
SUBMISSIONS FOR RESPONDENTS
In reply, Miss Barrie submitted that the decision of the Committee
involved a mandatory grant or refusal.
The grounds for refusal were fairly widely expressed and left to the
discretion of the Committee. It was
accepted that there had to be material before the Committee justifying its
decision. It had been accepted by Mr
Murphy that sometimes location was of importance eg in the decision relating to
Looking at the written Statement of Reasons, there was nothing to suggest that the Committee had taken any irrelevant considerations into account. The appeal should be refused on that ground. Considering the material before it, the decision reached by the Committee had been within the bounds of reasonableness and could not be overturned unless it was so unreasonable that no Committee, properly apprised of the facts, could have returned it. The suggestion that Councillor Mitchell had backtracked from her view that there was over provision of HMOs in this case was met by the respondents' averments on Record that "The decision was the collective decision of the Committee and the comments of one member of the Committee are irrelevant." (vide Answer 6 at the foot). I was referred to the case of Piper v Kyle and Carrick District Council 1988 SLT 267 to the effect that even if one particular member's views were shown to be coloured or prejudiced, that would not necessarily invalidate the decision of the Committee taken as a whole. That approach was also valid and relevant in respect of the use by one member of unspecified local knowledge.
In relation to the powers a Committee had to regulate the use of HMOs, such powers were unwieldy and set out various procedural steps that had to be gone through before there could be a hearing. There might not be any action taken for some time. Such powers were moreover subject to appeal and there would be no suspension of the HMO licence during an appeal. The Committee had considered granting a licence subject to certain conditions but was entitled to form the view that it would not have been appropriate to go down that route.
As for the productions lodged by the appellant, the previous
planning decisions were not relevant.
Production No 7, the determination of a planning appeal for change of
use from a flatted dwelling to an HMO for 3 persons at
In short, the decision in question was not made unreasonably, contained no error of law and no breach of natural justice. I was invited to refuse the appeal. If, contrary to that submission, I were to allow the appeal, I was invited to remit it back to the Committee for their consideration on the basis that no technical appreciation of the application had yet been made.
DECISION
I do not accept Mr Murphy's argument that matters of parking, waste
management and noise were "extraneous and collateral to the matters for
consideration by the Committee" as the activity to be carried out in the
premises, viz use as living accommodation, was one to which the premises were
eminently suitable and convenient and such activity per se did not create the
type of problems complained of. It is
widely recognised that the terms "character" and "location" have to be given a
wide meaning and may encompass matters affecting the amenity of an area (vide William Hill (Scotland) Ltd v Kyle and
Carrick District Licensing Board 1991 SLT 559, per the Lord Justice-Clerk
(Ross) at 561L - 562B). The matter of
planning permission is, however, of some relevance, contrary to the submission
of Miss Barrie. I accept that planning
considerations are different from licensing considerations and one need not
affect the other. As was stated by the
Lord Justice-Clerk (Wheatley) in J
"Clearly the decision by the Secretary of State's representative in the planning appeal and the reasons which he gave for that decision were not binding on the Licensing Committee when they came to consider an application for a permit under Section 34 of the Gaming Act 1968. To hold the contrary would be to wipe out the discretion vested in the Licensing Committee by Statute. The planning decision was made by one individual as a result of a view which he took of the evidence before him. Another body, discharging a different statutory function for a different purpose under discretionary powers was perfectly entitled to reach a different decision."
As, however, was stated by the Lord Justice-Clerk (Ross) in Leisure Inns (UK) v Perth and Kinross District Licensing Board 1993 SLT 796 at 799D-E:-
"... I am satisfied that the appellants were entitled to consider the matter of amenity, although since planning permission had been received for this application for a provisional grant of a licence, the appellants should, in my opinion, have been slow to hold at any detrimental effect on amenity was to be apprehended."
It respectfully seems to me that the matters considered by a planning reporter are capable of shedding some light on the concerns of the objectors even if they have been approached from a different angle. Taking each of the factors in turn,
(i) Parking
Mr and Mrs Jones stated that:-
"If more than 2 tenants arrive there will undoubtedly be
more cars to park in a street already saturated with cars. If each house in
The Reverend Lawson Brown stated:-
"
Mr Dyckhoff stated:-
"There is about enough parking on the street for 1.5 cars per house. With the division of 8 into 2 flats, and conversion of 8a to and HMO with 3 inhabitants, the pressure on parking is exacerbated. One car per house (8a and 8b together are regarded as just one house) and space for visitors seems to me about right for this street."
The reporter's views were as follows (at paragraph 18 of Production No 1 of the appellant's inventory):-
"The road outside the flat is wider at this end of
The photograph (No 4/10 in Production No 4 in the appellant's
inventory of productions) certainly shows the fact that
(ii) Noise. Mr and Mrs Jones stated that:-
"It will inevitably mean an increase in noise for us as we live in the next door terraced house."
The Reverend Brown stated:-
"Long term residents are subject to many anti-social indignities from rowdy homecoming revellers in the small hours, taxis coming and going at all hours and disregard for the neighbourly civilities that should enhance local life."
Mr Dyckhoff stated:-
"... HMO occupants are likely to be students; if unsupervised by a resident landlord, they tend to be noisy ..."
The reporter concluded that although properties in HMO use could be used more intensively than those in normal residential use, the licencing process could effectively control that.
(iii) Waste Management. Mr and Mrs Jones stated that:-
"Already there are wheelie bins overflowing and left all over the street."
The Reverend Brown stated:-
"Residents are agreed that their quality of life is diminished by the growing numbers of short terms tenancies with little or no regard for details such as, among others, the routine of waste collection."
Mr Dyckhoff stated:-
"(Students) allow the premises to deteriorate, eg with little care about rubbish bags and positioning of wheelie bins."
The reporter's view, subject to the same comment that the council could adequately control the management of an HMO through the licencing provisions, was that:-
"There is easy access to the refuse bins, which are kept on the pavement outside the property at the very end of the cul-de-sac." (vide paragraph 18)
I do not consider that the material before the Committee, as represented by the letters from the objectors as stated above in respect of all those matters, was of sufficient evidential value so as to discount the more robust view taken by the reporter on each of these matters. The considerations that weighed with the Committee appear, in light of the reporter's views, to be inaccurate, prejudicial and misleading. When taken together with the fact that the proposed use of these premises involves only a marginal increase from their existing use as rented accommodation for 2 persons into rented accommodation for 3 persons in the context of the established character of the street as given over largely to those seeking transient, as opposed to long term, permanent accommodation, it appears to me that they have exercised their discretion in an unreasonable manner. The appellant avers on record at Article 6:-
"The social amenity, character and condition of
Miss Barrie indicated in the appeal that she was not disputing the
assertion that 9 out of the 13 properties in the street were owned by absentee
landlords. According to the respondents'
pleadings "... only one property in
"The Sub-Committee noted that Mrs Valente took personal
interest in the day to day management of the premises and visited
The third proposed condition which the Committee considered attaching to the grant of the licence was in the following terms:-
"That the agent for the property was capable of responding to incidents at the property within 12 hours".
The written Statement of Reasons fails, however, to spell out why that was considered to be inadequate and not meet the objections raised. That aspect of the matter is simply ignored.
I have therefore come to the view that by ignoring the marginal nature of the change proposed by the granting of this HMO licence, by rejecting out of hand the conditions proposed that would go a long way to meet the objections made and by acting inconsistently with their previous grant in respect of properties elsewhere in the street, where similar objections were made, the respondents have exercised their discretion in an unreasonable manner and the appeal should accordingly be allowed on that ground. While I accept on the basis of the authority relied on by Miss Barrie that the decision of the Committee will not be tainted by the opinion and behaviour of one member, it is really the approach of the Committee as a whole to which I take exception. I agree with Mr Murphy for the reasons advanced by him that they have exercised their discretion in an unreasonable manner. I do not otherwise consider that they have erred in law or acted contrary to natural justice.
OUTCOME
As there was insufficient material before the Committee entitling
them to refuse the application, I am prepared to order that it be granted
rather than remitting back to the Committee for reconsideration (cf 'Risky
Business' supra). I am satisfied that
the conditions previously rejected by the Committee should be reinstated as
sufficient to deal with the nature of the objections that were put
forward. As I suggested in 'B & A
Anderson' supra, the fact that the respondents may have to consider attaching
conditions relating to safety and the environment should not prevent the
application being allowed in principle, subject to such conditions being
attached by the respondents as will meet their proper concerns and interests in
such matters. I have accordingly
attached such a fourth condition to the grant of the application. On the basis of success, I find the appellant
entitled to her expenses as the same shall be taxed.