Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL & FIFE AT DUNDEE

 

JUDGEMENT OF SHERIFF G MCCULLOCH

 

In the cause

 

 

JENNIFER COOPER -v- DUNDEE CITY COUNCIL B622/07

 

Dundee, October 2007

 

The Sheriff having resumed consideration of the cause, Repels the Pleas in law for the respondents, and the first plea in law of the appellant; sustains the second and third pleas in law for the appellant; upholds the appeal; reverses the decision of the respondents made on 14 June 2007 to refuse the appellant's application for a grant of a licence premises at 15 Robertson St Dundee as a house in multiple occupancy in terms of the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation Order 2000) in respect that in reaching said decision the respondents erred in law and exercised their discretion in an unreasonable manner; Orders the respondents to grant said application and licence; finds the respondents liable to the appellant and the expenses of the appeal; allows an account thereof to be given in and remit the same when launched 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 Jennifer Cooper. 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 15 Robertson St Dundee as a house in multiple occupancy, (hereafter HMO).

[2].            The appellant submitted her application for an HMO licence in June 2006. In accordance with their practice, the respondents allowed the appellant to tenant the property pending determination of the application.

[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 4 July 2007.

[4].            Following intimation of the application three objections were submitted, by a Mrs Dorman, a Mr Boylan and a Ms Black, all of whom were neighbours. Mrs Dorman and Mr Boylan attended the meeting on 14th June, and addressed the committee. The applicant was represented, and her representative also addressed the committee. In addition the applicant had written to reply in detail in answer to the three written letters of objection. The committee also heard from the respondents Mr McCrae, the Private Sector Services Unit Manager, who confirmed that the premises were fully compliant with the relevant regulations. He also indicated that there were no other HMOs in this block, nor any in Robertson Street.

[5].            The determination of the application was dealt with in accordance with schedule 1 of the Civic Government (Scotland) Act 1982. The application was refused by the committee, unanimously, on the basis that the premises were not suitable for convenient for use as an HMO in terms of paragraph 5(3)(c)(i) of said schedule.

[6].            The committee considered the terms of the objections received. Mrs Dorman's complaints largely related to previous occupants of the flat in question. In one of her letters she referred to the police having to be called several times to attend disturbances at the flat, and in another she commented that people who had lived there in the past had showed no regard at all for the building is all. Someone had broken the security lock, one caller had put his foot through the glass panel in the door, and another resident had urinated through the window into the street. The tenants had not kept their landing or the stairs clean and tidy. At the hearing she commented that nothing had been done since the appellant had purchased the property to improve the condition of the tenement. The stairs are never cleaned and there were holes in the wall. Mr Boylan advised the committee that the condition of the close had deteriorated after the premises had first become used as an HMO. Furniture had been left outside, on the landing. There were difficulties with parking. He alleged that people regularly came into the close with prostitutes, and people urinated at the door. He had problems finding a parking space.

[7].            The applicant's representative, Mr Re stated that all of the complaints related to previous owners and tenants; there had been no complaint for the last 12 months. The furniture that had been left on the landing did not come from the flat in question. The current owner, the applicant, should not have to take the blame for what had gone on before, particularly as there had been two sets of tenants in property since the applicant purchased it, without generating any complaint. Accordingly there was no basis for refusal of the application for the licence.

[8].            The decision letter indicated that the committee accepted that while there had been problems caused by the previous tenants there was nothing in the way of complaint against the applicant or her tenants. Nevertheless it was clear to the committee that the other residents of the block, especially Mrs Dorman and Mr Boylan, had had their quality of life seriously affected by the presence of the previous HMO. The committee did not feel that it was appropriate to sanction the use of these premises as an HMO and thereby risk the same things happening again. Notwithstanding the other residents having contact details for the applicant, in case of problems, the committee was concerned to prevent problems arising in the first place. The previous ownership and occupation of the application premises give a good indication of the sort of problems which can arise when introducing an HMO into a block where there have previously been no such properties. The committee felt therefore that this was an unsuitable location. For those reasons it decided to refuse the application.

[9].            At the appeal, it was agreed that there would be no need for the court to hear any evidence, and the matter was dealt with by submission. In the course of the submissions I was addressed to the following authorities:-

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

Bantrop v City of Glasgow District Licensing Board 1990 SLT 366

Botterill v Hamilton District Licensing Board 1986 SLT 14

William Hill (S) Ltd v Kyle & Carrick District Licensing Board 1991 SLT 559

J E Sheenan (Amusement Arcades) Ltd v Hamilton District Council 1986 SLT 289

Latif v Motherwell District Licensing Board 1994 SLT 414

The Noble Organisation v Kilmarnock & Loudon District Council 1993 SLT 759

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

Buchanan v Dundee City Council, unreported, dated 23 May 2007.

[10].        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.

[11].        The first ground of appeal is that the respondents based their decision on incorrect material facts. The appellant did not accept that the reasons given in the statement accurately reflected what happened at the committee meeting. However as it was agreed that the appeal would be presented on submissions only, this ground of appeal was not seriously insisted on.

[12].        The second ground of appeal relates to the exercise of 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 that. 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.

[13].        It was advanced in behalf of the appellant that Mr McCrae had confirmed that the premises met the standards or HMO use and were fully compliant. Further for a period of 12 to 15 months prior to be application bring considered at the meeting, the premises had been run in a satisfactory manner and had attracted no adverse comment regarding the applicant or the behaviour of her tenants. This 15 month experience was sufficient to suggest that the premises, provided they were run in a reasonable manner were convenient for use as an HMO. The local authority does of course have the power on the paragraph 10 of schedule 1 to the 1982 Act to vary or suspend the licence. Thus if the licence was to have been granted and there were difficulties encountered the matter could have been referred back to the committee. The thrust of this submission was that the local authority placed undue emphasis on the concerns of the objectors regarding the previous owner and tenants in reaching a decision to refuse. On this basis the decision to refuse their appellant's application for an HMO is one which no reasonable authority would have reached.

[14].        The third ground of appeal is that the respondents erred in law in reaching their decision to refuse. Mr Allison for the appellant sought to combine this plea in law with his second plea in law regarding unreasonable exercise of discretion by arguing that the committee applied the test of possibility to the question of the problems which were experienced in relation to the previous tenants and concerns the granting of an HMO licence would impact on existing neighbours' quality of life. I was referred to the case of Leisure Inns UK Ltd v Perth and 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.

[15].        It provision found in paragraph 5(3)(c)(i). The committee had to consider location but, having regard to the written reasons, it was difficult to see how "to risk the same things happening again" could justifiably fall under the heading of "location". The appropriate legislation was in these terms:-

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. It was submitted that the appellant had been refused a licence because the premises were not suitable having regard to their location, the precise statutory

No proper reasons have been given for the decision to refuse, and such reason as was given lacked a proper basis in fact.

[16].        Further and in any event, the committee made no attempt to assess the likelihood of their being future problems with antisocial HMO tenants causing problems, nor has there been any attempt to assess whether the events complained of by the objectors were likely to constitute a future feature of the operation of the premises. Indeed the evidence of a trouble-free operation over the last several months suggested the contrary. I was referred to the case of Risky Business Ltd v City of Glasgow Licensing Board 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 around for refusal: the test was one of likelihood of probability and since section 17(1)(B) was concerned about general issues of suitability and convenience, what was an issue was not the likelihood of 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 Mr Allison submitted that the respondents had erred in law in reaching the decision that they did. 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.

[17].        I was referred also to the case of Bantop v City of Glasgow District Licensing Board as authority for the proposition that the suitability of any particular premises should be considered as at the date of consideration, rather than the condition they had been in previously which in this case would be when the premises were occupied by the previous tenants, several months ago, or indeed the condition that might occur at some point in the future. Such an approach would be speculative. For these reasons the committee's reasoning demonstrated that it had erred in law and accordingly the decision should be reversed. I was urged not to remit to the committee for reconsideration, but instead to remit back with the instruction to grant the HMO licence sought. It was submitted that the committee had demonstrated an inability to deal with the application in a fair manner already, and had demonstrated a preconceived and incorrect assumption that the location was not suitable for HMO premises.

[18].        For the respondents it was accepted that the facts were not in dispute and that it was appropriate to deal with the appeal by way of submissions. It was correct to say that location was the ground of refusal. I was referred to the case of Noble Organisation v Kilmarnock and Loudon District Council which confirmed that there was a balance to be struck between the interests of an applicant and those of affected neighbours. Further, location and character must have a wide definition, to include amenity. See, for example, William Hill v Kyle & Carrick District Licensing Board, and J E Sheehan (Amusement Arcades) v Hamilton District Council. The objectives in the instant case had all referred to the impact on the amenity, and their enjoyment of their homes. These objections were valid and were properly taken into account by the committee.

[19].        The committee had taken all appropriate matters into account, but it could not be said that they had based their decision on any incorrect material facts. It was clear that for such a submission to have any successful basis, the incorrect material fact would have to be significant. The pleadings indicate that it was the issue of the furniture on the landing which was not in fact anything to do with the appellant. This is not a significant issue, but in any event the written reasons note that the appellant's representative indicated that the furniture issue should be disregarded. Accordingly the first plea in law should be repelled as the committee had not based its decision on any incorrect material fact.

[20].        Turning to the second argument which broadly speaking suggested that undue concern had been placed on the actings of the previous landlord and tenants, it was submitted that it was for the committee to determine what weight to place on these points of objection. It was not suggested to the committee that the information put forward by the objectors about the conduct of the previous tenants was incorrect, although it was conceded that the appellant was probably not in a position to admit or deny the allegations. Accordingly the committee were perfectly entitled to have regard to the conduct of the previous tenants and to decide what weight to place on that information. In this regard I was referred to the case of Latif v Motherwell District Licensing Board.

[21].        In considering whether or not there had been an unreasonable exercise of discretion by the committee I was directed to the well-known cases of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, Wordie Property Co Ltd v Secretary of State for Scotland, and 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. But Mrs Dorman in addressing the committee had said that nothing had been done since the appellant acquired the property to improve the condition of the block. Both Mrs Dorman and Mr Boylan had indicated that the quality of their life had been affected by the existence of the previous HMO and it was submitted that this was sufficient for the committee to refuse the application so as not to run the risk that it would happen again.

[22].        I was reminded that it was not for the sheriff to substitute his own view of what was appropriate for that of the committee; the test is not what the sheriff, or another committee might have done, but whether it could be said that no reasonable authority would have reached the decision that the committee did reach. An example of such an inappropriate approach by the sheriff could be found in the case of Ranachan v Renfrew District Council. Accordingly even if the committee had reached a decision which the court would not have reached, the appeal had to fail unless it was so unreasonable that now the reasonable authority would have reached it. That case had not been made out and accordingly the second plea in law should be repelled.

[23].        The third ground of appeal, effectively the combined error in law and unreasonable exercise of discretion should also be refused. It was possible to distinguish the cases of Leisure Inns and Risky Business as they related to different statutory provisions. The Sheriff in the unreported Anderson v Fife Council case had done just that, and I was urged to do so as well. The sheriff in the unreported case of Buchanan v Dundee City Council had followed the decisions in Leisure Inns and Risky Business, but I was urged to distinguish that case on the basis that no objectors had attended, and the written objections were 18 months old by the time of the hearing. In the present case the letters of objection were dated some 11 months before the meeting, and two of the objectors had attended. They spoke of their real experience of an HMO in their tenement. They were entitled to speak of their experiences and the committee was entitled to take those experiences into account. It was quite reasonable for the committee, having taken cognisance of those experiences to consider whether or not they would likely be repeated if a further HMO licence was granted. It was accepted that the committee had to consider what the position was at the time of the meeting rather than speculate into the future, but they had sufficient information before them to come to the view that they did, namely that the location was not suitable.

[24].        I was urged therefore to refuse the appeal. If however the appeal was to succeed than the appropriate course of action would be to remit the matter back to the committee for further consideration. It was preferable for matters of this nature to be decided by elected representatives, rather than imposed by a court. Parties were agreed that expenses should follow success.

[25].        I have come to the view that the appellants first plea in law must fail. It is not at all clear that the committee took into account any incorrect material facts of a significant nature, that being the relevant test. In the circumstances that plea falls to be repelled.

[26].        It seems to me however that the appellant's second and third pleas are inextricably linked. In considering the written reasons to ascertain why the application was refused, it is clear that the first five paragraphs set out the factual basis of the application, of what was said for the objectors, and of what was said for the applicant. The final paragraph is the important one as it purports to give the reasons for refusal. It begins by confirming what was considered by the committee, and states that the unanimous decision was to refuse the application in terms of paragraph 5(3)(c)(i), namely that the premises are not suitable or convenient for use as an HMO having regard to their location. The letter goes on to say that the premises are located in a corner block in the street in which there are currently no other HMOs. I can see no relevance to the premises being in a corner block, as opposed to a block halfway down the street, and assume that this is just a description of the location. The fact there are currently no other HMOs is clearly a factor, but the committee give no weight to this, and it is hard to see what the importance of this might be. It is frequently the case that applications for licences are considered against the background of alleged overprovision. Here it is not said that Robertson Street itself is unsuitable, and I struggle to see what relevance, if any, there is in the fact that there are no other HMOs in the street.

[27].        Thereafter the written reasons refer to there having been considerable problems caused by the previous tenants, although it is conceded that there was nothing in the way of complaint against the applicant's tenants. The letter goes on "Nevertheless it was clear that the other residents, especially Mrs Dorman and Mr Boylan, had their quality of life seriously affected by the presence of an HMO previously and their objections indicate the sort of problems which they had to put up with. The committee did not feel that it was appropriate to sanction the use of these premises as an HMO and thereby risk the same things happening again". It is clear to me that the committee has taken the view that because there were difficult tenants in the past, there would likely be difficult tenants in the future and therefore the existing residents should be protected against that possibility. In my mind they have applied the wrong test. I have no doubt that had there been justified complaints about the appellant or her tenants, then the committee would have been able to apply the test of probability, which in my mind is the correct test. The fact remains however that it was recognised by the committee that "there was nothing in the way of complaint against your client's tenants". I am therefore of the view that the committee has erred in law in their approach to this application. That error has then led them the wrong way to exercise their discretion to refuse the application.

[28].        The written reasons continue by confirming that the committee was concerned to prevent "such problems arising in the first place". This I presumed to be a reference to the sort of problems as were caused by the previous tenants. It seems to me however that this is the sort of remark which could be made when refusing any HMO licence application, and might justify the refusal of all HMO applications, which is clearly not what the Act envisages, given the presumption in favour of grant. As such, and given that it is not supported by reasons, it is an inappropriate consideration. The letter goes on to say that " the previous ownership and occupation of the application premises give a good indication of the sort of problems which can arise when introducing an HMO into a block where there have previously been no such properties and the committee felt, therefore, that this was an unsuitable location". Although this factually appears to be inaccurate, as there was reference to a previous HMO at premises, it is again speculative when considering this application, and again implies a test of possibility rather than probability. The committee has ignored the substantial period has elapsed without complaint after the tenants who caused "the sorts of problems which can arise" had departed, and the appellant assumed responsibility. I am of the view that the committee's decision cannot be considered as one which it was reasonable for them to make. Indeed I am of the opinion that no reasonable committee, properly applying the law would come to the decision to refuse this application. I was asked to follow the decision of the Sheriff in Anderson v Fife Council. In fact, I can distinguish that case. The committee there refused the application under both sections 5(3)(c)(1) and (2). It was refused under subsection (1), location, as the house was in a community of mainly elderly residents. That does not impact on this case. However, it was in connection with subsection(2), nature and extent of proposed activity, that the Court considered, inter alia, the case of Risky Business, and decided that it did not apply, as the committee had considered the possibility of public nuisance, which is itself a reason for refusal. The Sheriff states "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". In my view, if the committee wanted to consider public nuisance as a ground for refusal, they can do so, and the test could well be one of future possibilities. But the committee would then have to find that they were refusing the application under subsection (4), rather than ss(2). I have therefore not found the Anderson case to be relevant to this appeal.

[29].        It is of course for the committee to decide what weight to give to the objections, but it was conceded on behalf of the respondents at the appeal that many of the criticisms made by the objectors, and specifically Mr Boylan, could just as easily relate to other occupiers in the close, or strangers, as to the previous tenants, or to the present applicant. Equally, they could apply to occupiers of the premises in question who might not need to be regulated by HMO regulations, such as a large family, with adult or teenage children. It appears to me therefore that it would not be appropriate to remit the matter back to the committee for reconsideration, given what they have already considered and stated as their reasons. Instead, as I am satisfied that their decision is flawed in law and in the exercise their discretion, I have decided that it is appropriate to grant the application. There is a statutory presumption in favour of a grant of a licence, unless the statutory grounds of refusal are established.

[30].        It was agreed that expenses would follow success, and I have therefore found the respondents liable to the appellant in the expenses of the appeal.