Scottish Sheriff Court Decisions

JUDGEMENT BY SHERIFF A GRANT McCULLOCH

 

 

 

 

DR CHRISTOPHER KILLEN & MRS ALISON KILLEN -v- DUNDEE CITY COUNCIL B623/07

 

 

Dundee, 17 October 2007

 

The Sheriff having resumed consideration of the cause, repels the appellants pleas in law, Sustains the respondents plea in law; refuses the first crave of the appellants and Decerns; Finds the appellants liable to the respondents in the expenses of the action as same shall be taxed, and remits an account thereof, when lodged to the Auditor of Court to tax and to report.

 

 

 

 

NOTE :

[1].            This is a summary application under paragraph 18 of schedule 1 of the Civic Government (Scotland) Act 1982 as amended, by Dr & Mrs Killen. It is in the form of an appeal against the refusal of Dundee City Council licensing committee to grant a licence for use of premises at 30 Constitution Crescent, Dundee as a house in multiple occupancy, (hereafter HMO).

[2].            The appellants submitted an application for an HMO licence in June 2006, seeking occupation by 4 tenants. In accordance with their practice, the respondents allowed the appellant to tenant the property pending determination of the application, although the property was in fact occupied by the appellants' daughter, and 2 others.

[3].            The application was considered by the respondents licensing committee at their meeting on 14 June 2007. At that meeting the committee decided to refuse the application. Written reasons were sought, and produced on 2 July 2007.

[4].            The matter called on 9 October 2007, when parties were agreed that the facts were such that the appeal could proceed on documents, and submissions, without the necessity of hearing evidence.

[5].            Any appeal against the decision of the licensing authority lies to the sheriff in terms of paragraph 18 of schedule 1 of the Civic Government (Scotland) Act 1982. In terms of paragraph 18 (7) " the sheriff may uphold an appeal under this paragraph only if he considers that the licensing authority, in arriving at their decision; a) erred in law

b) based their decision on any incorrect material fact

c) acted contrary to natural justice; or

d) exercised their discretion in an unreasonable manner.

 

[6].            The letter from the respondents dated 2 July 2007 sets out, in its final paragraph, the Committee's reasons for refusal. It is helpful to quote it in full. "After considering the comments of Mr McCrae, the submissions by the objectors and Mr Glass and the contents of the letters of objection, the committee decided unanimously that the premises are not suitable for use as an HMO having regard to their location, in terms of paragraph 5 (3) (c) (i) of schedule 1 to the Civic Government (Scotland) Act 1982. The committee readily accepted that none of the problems referred to in the letters of objection relates to your clients' premises. Rather the main issue here is a designation of this development as a "Home Zone". This is not a suitable area for HMOs. There is more to the concept of a Home Zone than just pedestrianisation and measures to control traffic. The purpose of developments such as these is also to provide a quiet, safe and stable environment for the likes of retired people and families. This cannot be achieved if there are HMOs in the midst of such an area. The committee recognised that it had granted applications in the past, but it is not bound by its previous decisions and, indeed, the various matters referred to in the letters of objection indicate the sort of difficulties which have been caused in the development by the existence of HMOs already. For these reasons the committee decided to refuse the application.

[7].            I was advised that this appeal was on the basis that the respondents, as the licensing authority, had based their decision on incorrect material facts and had exercised their discretion in an unreasonable manner. I was referred to the following authorities by the parties:

The Noble Organisation Ltd v City of Glasgow District Council (no 3) 1991 SLT 213

Leisure Inns (UK )Ltd v Perth & Kinross District Licensing Board 1993 SLT 796

Risky Business Ltd v City of Glasgow Licensing Board 2000 SLT 923

Botterill v Hamilton District Licensing Board 1986 SLT 14

Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345

Loosefoot Entertainment Ltd v City of Glasgow District Licensing Board 1991 SLT 843

Rannachan v Renfrew District Council 1991 SLT 625

Anderson v Fife Council, unreported, dated 22 March 2006

Cashley v City of Dundee City Council 1994 SLT 1111

Keith v Dunfermline Town Council 1968 SLT 51

Cooper v Leven Town Council 1967 SLT 82

 

[8].            The first ground of appeal supported by the first plea in law is that the respondents based their decision on incorrect material facts. The appellants allege that the respondents' interpretation and application of the definition of Home Zone is incorrect. Further the purpose of a Home Zone is incorrectly stated in the letter of reasons and in particular, at the application hearing the Lord Provost demonstrated a complete misunderstanding of the purpose of a Home Zone.

[9].            Various documents were produced, by both sides, to support their arguments. Firstly, the appellants referred to four pages from the Internet site of the Scottish Centre for Regeneration, which appears to be part of the government agency, Communities Scotland. In this document it is stated that "a Home Zone is a residential area that aims to meet the needs of all road users equally, and for all road users, including pedestrians and cyclists and motorised traffic, share the road space. Streets in the Home Zone are designed to allow local people to use the space rather than being dominated by the needs of passing local traffic. Children's play, social interaction, walking and cycling will all be part of normal use of the street. Vehicles will be regarded as slow moving guests rather than dominant features of the street. The streets within a Home Zone are designed to be safer, to look better and have attractive places for children to play and people to meet." It was submitted for the appellants that Home Zones were a design aspiration, with a focus on community. Much of the emphasis is on shifting the balance from cars to pedestrians and cyclists. Although families and older people are mentioned, there appears to be no intention to keep the area exclusively for families and older people. Community is not complete without single people. HMOs in general cater for single people and for that reason there appears to be no inconsistency with the concept of a Home Zone and an HMO. Home Zones are meant to be socially inclusive not exclusive. The written letter of reasons states that "there is more to the concept of a Home Zone than just pedestrianisation and measures to control traffic. The purpose of developments such as these is to provide a quiet safe and stable environment for the likes of retired people and families." It was submitted for the appellants that this interpretation of the Home Zone policy was incorrect. Thus the respondents had based their decision on incorrect material facts and the appeal should be granted. There was no evidence to show that the supposed ethos of a Home Zone could not be achieved with HMOs in their midst.

[10].        The second ground of appeal was that the Committee had exercised their discretion in an unreasonable manner. The correct approach in dealing with such an appeal was originally laid down by Lord President Emslie in the Wordie Property case. The test was further considered and clarified in the Noble Organisation case in 1991, where Lord Morison stated "The court's entitlement to intervene in a decision based on the exercise of an authority's discretion could only be justified if the decision was so unreasonable that no reasonable tribunal could have reached it. I must confess that I have some difficulty in envisaging a decision which could properly be described as unreasonable, if it is nevertheless one which a reasonable tribunal could have reached. But accepting that these authorities may indicate that, in order to justify the court's intervention on the ground that the tribunal has exceeded its jurisdiction, something more is required than merely to show that a decision is unreasonable." It was submitted by the appellant that the respondent's decision, and their exercise of discretion in refusing the licence is one which no reasonable authority would have reached. The statutory provision dealing with such applications confirms at paragraph 5 (1) of schedule 1 to 1982 act that the licensing authority shall grant a new licence unless one of the grounds of refusal exists.

[11].        I was then directed to the case of Leisure Inns v Perth & Kinross District Licensing Board which involved an application under more or less equivalent provisions but relating to public house licences. In that case the Lord Justice Clerk in his opinion at page 798 stated: --

" behind every ground for refusal there must be adequate reasons, and..... for these reasons there must be a proper basis in fact."

In the same case the Lord Justice Clerk also confirmed that in his view considerations of the location of premises could include the question of amenity to surrounding properties. In that case the licensing board had refused the application for the provisional grant of the public house licence on the ground, inter alia of "there being the strong possibility that the use of the premises as a public house would have a detrimental effect on the amenity of the four dwelling houses." Objections had been submitted by the householders about potential noise from the premises. Mr Allison submitted that this appeal has parallels with the Leisure Inns case and perhaps was the stronger appeal because of the actual experience of 15 months or so of operation of the premises as an HMO without complaint.

[12].        I was urged to consider two points in support of this ground of appeal. Firstly, the committee exercised their discretion unreasonably having regard to the information given by the appellants' agent at the Hearing which was specific to the premises in question; and secondly having regard to the general information to which they would have been aware given the committee's knowledge of the locality. As regards the first point, I was advised that the letters of objection were submitted prior to the tenants moving in, in September 2006, and consequently any complaints of anti social behaviour could not be directed to the fault of these appellants. Further, the Killens could have put the title in name of their daughter, meaning no licence was required. Photographs had been submitted by the solicitor at the hearing showing that the premises were in good order, and not untidy, and finally that none of the tenants had a car, so could not be impacting on the parking issues complained of. I was referred to the Risky Business case, which, although dealing with different legislation, contained the same basic principle of whether premises are suitable or convenient for the use which has been proposed for them. The opinion of the court was delivered by Lord Prosser, stating at page 926: " Furthermore it was accepted by counsel for the board that the mere possibility of some undesirable sequel to the grant of an application was not a ground for refusal: the test was one of likelihood or probability and since section 17(1)(B) was concerned about general issues of suitability and convenience, what was at issue was not the likelihood or probability of some individual but undesirable event occurring on some occasion in the future, but the likelihood or probability of such events constituting a feature or characteristic of the operation of the premises so as to have a bearing upon their suitability for convenience for the sale of alcoholic liquor". Accordingly, whilst recognising that the case dealt with slightly different statutory provisions, Mr Allison submitted that the respondents had made no attempt whatsoever to assess the likelihood of there being future problems. It was not appropriate to rely on the risk of problems in the future as the test. Instead the committee should have considered whether there was a probability of problems occurring which would have a bearing upon the suitability of the premises as an HMO.

[13].        The second argument to support the second ground of appeal related to the area itself. There were already three HMOs in the street, which was very close to Abertay University.There was no question of overprovision, or saturation. The respondents were effectively saying that the granting of this application was contrary to Home Zone policy. This the appellants disagree with. It assumes all HMO tenants are bad tenants, which would be nonsense. In any event, there had been no problems with the current tenants, showing them to be good tenants. The committee has wrongly exercised its discretion in the refusal. I was reminded that conditions could be attached to a grant, and that the licence could be suspended or revoked if problems occurred.

[14].        I was invited to allow the appeal, and remit back with a direction to grant, rather than for reconsideration. The committee had indicated that the area was not suitable for an HMO, and would be prejudiced on reconsideration. Reference was made to the Botterills of Blantyre case. Expenses should follow success.

[15].        For the respondents, I was urged to refuse the appeal. In the first place it was appropriate to look at the legislative basis for the creation of Home Zones. This was to be found in the Transport (Scotland) Act 2001, and the Home Zones (Scotland) Regulations 2002. Additionally, webpages from the Scottish Executive site were produced. The thrust of these documents was to show that whilst the background to the introduction of Home Zones was transport, they could in fact deliver a wide range of social and environmental benefits. " A key theme, however, is that Home Zones are about more than traffic calming or management. Home Zones represent a more holistic approach to residential environments. They have the potential to deliver a wide range of social and environmental benefits." "Ideally Home Zones will be in areas where there is either already a strong sense of community or where there is potential to build capacity and community identity". " Home Zones should aim to achieve a wide range of benefits. Home Zones are about more than traffic calming and management and should aim to achieve a wide range of social, community, health and environmental benefits. Ultimately they should enhance the quality of life for people living within the Home Zone, bringing particular benefits for children, older people and less mobile people whose use of streets is often most significantly inhibited by traffic flows and speeds. It is important therefore, that interests outside the sphere of highways and planning are in force from the outset." " Home Zones should provide new opportunities for play and social interaction. They should reflect the needs of the whole community. While children will be amongst the prime beneficiaries, the design of Home Zones should also aim to improve conditions for the elderly and disabled and those who are visibly impaired." From these various quotes it was clear that the purpose was principally a safe environment, and therefore it was appropriate for the committee to look at activities within the Home Zone to ensure that such activities were in principle conducive to the production of the wide range of social and environmental benefits sought by a Home Zone. Accordingly the committee was quite entitled to consider whether it was appropriate for there to be an HMO within the Home Zone.

[16].        It was accepted by the committee that none of the prior incidents related to these premises, but it was appropriate to consider the objections that have been lodged to show the problems caused in the location by existing HMOs. There were five letters of objection, and they all indicated that difficulties have occurred with the existing HMOs. Problems of noise, car parking, refuse and driving were highlighted. The main thrust of the objections however was that the area is a Home Zone, and is primarily occupied by family homes. As such the area is not suitable for HMOs in general, and another one in particular. I was referred the case of Loosefoot Entertainment Ltd v City of Glasgow District Licensing Board. In the latter case the sheriff dealt with discretion in a way which was approved by the Inner house, viz: " in my view therefore, it is open to me to accept that the board's decision must be upheld in an appeal under section 39 (4) (d) unless it can be said to have acted in the absence of any factual basis for that its decision was so unreasonable that no reasonable board would have reached it or, of course, on the ground that it took account of matters which it should not have taken into account and failed to take into account matters which it should have taken into account: see the Wednesbury case". It was submitted for the respondents that they had acted properly in the exercise of their discretion. It was accepted that the premises met the standard required for an HMO. It was accepted that the bulk of the criticisms, particularly the specific ones, were directed to the period when there were previous occupiers in the property for whom the appellant had no responsibility. However, in giving consideration to the premises being within a Home Zone, the respondents had not misunderstood what that entailed, nor had they taken incorrect facts into account.

[17].        Further the Committee had not wrongly exercised their discretion. By reference to the Leisure Inns case, the question of location had to be considered in its wider context, of amenity. It was clear that the amenity provided to the residents of Constitution Crescent was enhanced by its being a Home Zone. Accordingly the committee were perfectly entitled to exercise their discretion as they did.

[18].        The respondents agent recognised that three other HMO licences had been granted for this street. Two of them were granted unanimously, there being no objections. The first to be lodged, however, had received objections, the committee had been split, and the application was granted on the casting vote of the convener. I was reminded that as a general principle a licensing authority was not bound by its previous decisions, see Sangha v Bute & Cowal Divisional Licencing Board, and McLeod v City of Aberdeen District Council, both referred to in "Licencing Law in Scotland", 2^nd ed, by JC Cummins. Accordingly, provided that the Committee considered each application fairly, and in accordance with the law, there was no reason why one committee might come to a different view from another, or why a committee might now express a policy where previously it had not done so, or acted in a different way. I was reminded that between the grant of the three HMO licences, and this refusal, there had been a local government election, and the constitution of the committee had changed, as had the Convenor. In passing reference was made to the cases of Cashley, Keith, and Cooper.

[19].        Thus I was urged to refuse the appeal, as the committee were entitled to exercise their discretion as they had done, and had not taken any incorrect material into account. However, if I was to allow the appeal, then it would be appropriate to remit the matter for consideration afresh, as it was the local authority, particularly the elected members, who were charged with licensing matters.

[20].        Having considered the matter carefully, I do not consider that the committee was not entitled to consider the issue of the Home Zone as important in reaching a view on the location of the premises. Nor do I consider that they were under any false view or interpretation of what a Home Zone was, or was intended to be. One of the pilot Home Zones was in Dundee, in the very location of this application. The respondents are the roads authority, as well as the licensing authority. There has not been demonstrated any misunderstanding of the purpose of a Home Zone, and accordingly the first ground of appeal fails. In my view it was perfectly reasonable and responsible for the respondents to have the view that Home Zones are primarily for families, and older people, and that HMOs do not fall within the desired ethos or makeup of a Home Zone. That clearly does not preclude HMOs elsewhere, where they would be less unsuitable for the location, nor does it adversely reflect upon the applicants or their current tenants.

[21].        The committee's decision would not have been correct if the sole reason for refusal had related to the possibility of problems from the current tenants at some point in the future, based on past experience of other tenants in other existing HMOs. The appropriate test would be the probability of these tenants causing similar unacceptable difficulties that were noted to have occurred before. This was not, however, the basis for refusal of the application.

[22].        I am also of the view that the committee were not bound by their previous decisions, which led to three HMO licences being granted in Constitution Crescent. If the committee is now enunciating a policy of no HMOs in a Home Zone, then provided that policy is justified, explained and in accordance with their powers, then they are entitled to do so. In that regard, it must be remembered that the powers of the respondents in such licence applications is set out by statute:

3) A licensing authority shall refuse an application to grant or renew a licence if, in their opinion-

(a) the applicant or, where the applicant is not a natural person, any director of it or partner in it or any other person responsible for its management, is either-

(i) for the time being disqualified under section 7(6) of this Act, or

(ii) not a fit and proper person to be the holder of the licence;

(b) the activity to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant or renewal of such a licence if he made the application himself;

(c) where the licence applied for relates to an activity consisting of or including the use of premises or a vehicle or vessel, those premises are not or, as the case may be, that vehicle or vessel is not suitable or convenient for the conduct of the activity having regard to-

(i) the location, character or condition of the premises or the character or condition of the vehicle or vessel;

(ii) the nature and extent of the proposed activity;

(iii) the kind of persons likely to be in the premises, vehicle or vessel;

(iv) the possibility of undue public nuisance; or

(v) public order or public safety; or

(d)there is other good reason for refusing the application;

and otherwise shall grant the application. In this case the decision letter made it clear that refusal was under subsection (i) above, namely "location, character...of the premises". A Home Zone is clearly a "location" with its own "character".

[23].        It has not been shown to my satisfation that the committee has unreasonably exercised its discretion. Full consideration of all material facts was given. The committee were entitled to take the view that they did, and had adequate reasons for doing so. The letter of 2 July 2007 sets out these reasons, and cannot be, indeed was not, criticised as giving insufficient cogent reasons.

[24].        I therefore refuse the appeal. In doing so I have had no regard to the possibility of the title being taken in the name of the appellants' daughter, to circumvent the legislation, or the fact that the effect of the decision is to limit occupation to 3 rather than 4 tenants. Rather, I have refused it on the priciple of the committee's entitlement to take into account when reaching their decision, the fact of location in a Home Zone as a relevant factor. It is of course unfortunate for the appellants that this committee reached a different view from earlier committees, but in doing so they did not improperly or unreasonably exercise their discretion. Nor did they act contrary to natural justice or take account of incorrect facts. It was not suggested that they had erred in law.

[25].        It was agreed that expenses should follow success, so I have found the respondents entitled to the expenses of this appeal.