SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

SD299/11

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in causa
	SOUTH LANARKSHIRE COUNCIL
	Pursuers and Respondents
	against
	CAROL GILLESPIE
	Defender and Appellant

 

For the defender and appellant :Mr R Carty, Solicitor, Hamilton

 

For the pursuers and respondents: Mrs Bonnar, Solicitor, Motherwell

 

 

HAMILTON: 17 April 2012

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriffs interlocutor of 24 November 2011 complained of; reserves the question of expenses in respect of the appeal and appoints parties to be heard thereon in Airdrie Sheriff Court at 10.30 am on Wednesday 2 May 2012.

 

 

 

Background to the appeal

1.                  This is a summary cause action for recovery of possession of heritable property raised by the pursuers against the defender following on the conviction of the defenders spouse for a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 for being concerned in the supply of cannabis. On 24 November 2011 after proof the Sheriff held that the pursuers were entitled to recover possession of the property at 24 The Croft, Larkhall and granted decree for recovery of possession of that property and ordered removal from the property of the defender, her family subtenants and dependents together with their goods and possessions. On 6 December 2011 the defender marked an appeal and requested the Sheriff to state a case.

2.                  In his stated case the Sheriff records the pursuers evidence was given by Carol Young, one of the Housing Officers, Constable Alan Gill an officer who had been involved in the search of the defenders house on 10 February 2009 and the subsequent arrest of the defender's husband for being concerned in the supply of cannabis, and James Robertson, one of the pursuers Anti Social Investigation Officers, a former Police Officer with some experience in drug matters. The Sheriff stated that he found the pursuer's witnesses to be credible and reliable. The Sheriff stated that the defender gave evidence on her own behalf. He did not accept her evidence that she was unaware of the contents of her tenancy agreement. He did not accept that she was unaware that her husband was concerned in the supply of cannabis and he found certain other aspects of her evidence unconvincing.

 

3.                  The Sheriff made the following findings in fact:-

"1. The Pursuers are South Lanarkshire Council, Housing & Technical Resources, Council Offices, Almada Street, Hamilton. They are the owners and landlords of the heritable property at 28 The Croft, Larkhall (hereinafter the said subjects). The Defender resides in the said subjects and is sole tenant thereof.

2. The Pursuers let the said subjects to the Defender by a tenancy agreement dated 2^nd March 2004. The said subjects were originally let to the Defender and her husband David Gillespie but subsequently a fresh tenancy agreement was entered into with the Defender only. In terms of the Schedule to the Secured Tenancy Agreement entered into by the Defender with the Pursuers the Defender was well aware that she, those living with her and her visitors must not use her house or allow it to be used for illegal or immoral purposes. She was also well aware that neither she nor anyone living with her or her visitors was permitted to misuse, abuse or sell controlled drugs or bring into her house any form of controlled drugs.

3. Although the Defender was at the time of that tenancy agreement being signed separated from her husband David Gillespie, she had resumed residing with him at the said subjects by 16^th December 2005. She remained residing with him at the said subjects until at least April 2011.

4. On 10^th February 2009 while the said David Gillespie was living with the Defender at the said subjects the said David Gillespie, his motor vehicle and the said subjects were searched by the police in connection with offences under the Misuse of Drugs Act. In David Gillespie's right hand jacket pocket a tin was found containing brown resinous material. Within the said David Gillespie's motor vehicle parked outside the said subject's fourteen deals of herbal cannabis were found. They were in the passenger footwell of the said vehicle. The said subjects were then searched under a search warrant. A pillowcase containing three quarters of a kilo approximately of bud cannabis was found in the kitchen cupboard. It was at head height. The kitchen smelt strongly of herbal cannabis. That was noticeable to the police on entering the house and would be obvious to the occupants. Beside the pillowcase, which was the size of a small football, a piece of bud cannabis weighing twelve and a half grams was sitting. The total amount of cannabis recovered, from the motor vehicle and the said premises, was approximately one kilo. It had a minimum street value of £5,000, or more if sub-divided.

5. During the search, quantities of money were also found in the said subjects. Around £1,900 was found in a red box in a drawer in the bedroom shared by the Defender and the said David Gillespie. The Defender herself had a black purse with £300 cash in it and a further £1,000 in mixed notes in her handbag which was found in the living room of the subjects. She claimed that the £300 was for shopping and the £1,000 was a fortieth birthday present. David Gillespie had £580 in mixed notes in his possession. The total amount of cash seized was £3,780.

6. The said David Gillespie was charged on Indictment at Hamilton Sheriff Court and pled guilty to a contravention of Section 4(3)(b) of the Misuse of Drugs Act 1971, by being concerned in the supply of Cannabis a Class B drug, between 1^st January 2009 and 10^th February 2009 at the said subjects and elsewhere in Scotland. On 13^th January 2010 he was sentenced to 275 hours community service with restriction of his liberty, and a forfeiture order was made in respect of the cash found. At this time he was still residing with the Defender in the said subjects.

7. The Defender was well aware that the said David Gillespie was concerned in the supply of Cannabis between the dates above mentioned and allowed the said subjects to be used for that purpose knowingly between those dates.

8. Following on the conviction of the said David Gillespie, information was obtained by the Pursuers' Anti-Social Investigation Officers Department about his conviction. The Pursuers' Anti-Social Investigation Officers attempted to interview the said David Gillespie and the Defender. Neither of them responded to the request for interview. Subsequent to this the Defender and the said David Gillespie, who was still residing with her at the said subjects were served with Notices of Proceedings for Recovery of Possession on 26^th January 2011. Following on service of these Notices the said David Gillespie continued to reside at the said subjects with the Defender. The Defender denies ever having received any requests to attend for interview with the Anti Social Investigation Officers.

9. The Defender was thereafter served with these proceedings, the return day for which was 25^th April 2011. It was only after the service of these proceedings that the Defender got the said David Gillespie to leave the said subjects.

10. The Defender and the said David Gillespie are now separated. The first proof date scheduled for these proceedings was 1^st September 2011 when the case was adjourned. The Defender instructed her solicitor in relation to interdict proceedings to prevent the said David Gillespie coming back to the said subjects approximately one week prior to that proof. The diet of proof from which these findings are made took place on 24^th November 2011. The Defender obtained a power of arrest and an interdict against the Pursuer in that cause interdicting him from inter alia approaching her on 23^rd November 2011. No exclusion order had been applied for or obtained.

11. The Defender's personal circumstances are that she did a nursing qualification and in 2009 was earning up to £1,200 per month. She has not been receiving any housing benefit in respect of the said subjects. She has her own business making a profit of £300 to £400 per week. In April 2011 she made an application to purchase the said subjects from the Pursuers which application was refused because these proceedings were current. In April 2011 her father was prepared to assist her with the finance to allow her to purchase the said subjects. He continues to assist her financially. The Defender also intended to apply for a mortgage to assist with the purchase of the said subjects.

12. In event of the Pursuers recovering possession of the said subjects from the Defender, the Pursuers would assist the Defender were she to present to them as homeless. They would give her assistance in identifying private lets and help if necessary with the deposit for a private let. If she were to apply for further council housing an investigation would be necessary, but pending such an investigation and application, temporary accommodation might be made available to her by the Pursuers. A private tenancy would cost approximately £450 per month. The Defender presently pays approximately £250 per month in rental to the Pursuers.

 

13. The Defender herself has no criminal record. She is regarded by her neighbours as being a good neighbour and no significant complaints have been made about her to the Pursuers' Anti-Social Behaviour Team.

The Sheriff then made the following findings in fact and law;-

1. As the Defender was aware of her husband's behaviour between the dates of 1^st January 2009 and 10^th February 2009 at the said subjects, she is in breach of her tenancy agreement. The Defender's aforesaid breach of her tenancy agreement constitutes grounds for recovery of possession in terms of Part 1 of Schedule 2 to the Housing (Scotland) Act 2001.

2. In light of the Defender's spouse David Gillespie's conviction hereinbefore referred to, he has been a person residing or lodging in the said subjects with the tenant and has been convicted of using the said subjects for immoral or illegal purposes and has also been convicted of offences punishable by imprisonment committed in the locality of the said subjects. This is also a ground for recovery of possession in terms of Paragraph 2 of Part 1 of Schedule 2 to the Housing (Scotland) Act 2001.

3. Valid notices in compliance with Section 14 of the Housing (Scotland) Act 2001 have been served on the Defender and on her spouse the said David Gillespie advising respectively the reasons for the action sought to be taken by the Pursuers. In terms of said notices the Pursuers are entitled to raise these proceedings.

4. In terms therefore of Paragraph 2 of Part 1 of Schedule 2 of the said Act the Pursuers as landlords have established grounds for recovery of possession of the said subjects as set out therein.

5. Taking account of the public interest, that the Defender knew the consequences of the actions of her spouse and knew of his activities, taking account also of the gravity of the offences committed by the Defender's said spouse, the said David Gillespie and taking account finally of the consequences of removal for the Defender it is reasonable for the court to make the orders sought by the Pursuers in terms of Section 16(2)(a)(ii) of the Housing (Scotland) Act 2001."

The Sheriff then made the following finding in law;-

"The pursuers are entitled to recover possession of the said subjects at 28 The Croft, Larkhall."

 

4.                  In her note of appeal the defender appeals on the basis that the Sheriff failed to give sufficient weight in law to the circumstances relating to the appellant (the defender) since the date of her husband's conviction in January 2010, namely;

"(1) The appellant has had no subsequent involvement with the police since the date of the incident in February 2009;

(2) The Officers of South Lanarkshire Council, in evidence, confirmed that no anti-social complaint against the applicant has been made either before or after the date of the incident.

(3) The appellant and her husband separated in early April 2011, because of the tensions introduced into her marriage by her husband through his conduct and conviction;

(4) The appellant has required to obtain an Interdict with Power of Arrest against her husband at Hamilton Sheriff Court to prevent him from approaching or contacting her or from attempting to approach or contact her in any way. This action has been allocated court reference A689/11. Copy interlocutor dated 21 October 2011 and 23 November 2011 are attached and referred to for their terms;

(5) The appellant has required to change the locks in her house to prevent her husband from obtaining access to the house at 28 The Croft Larkhall. He has been denied access to the property since the beginning of April 2011;

(6) There has been no reconciliation between the parties since the time of their separation in April 2011.

 

5.      In the Note which the Sheriff attached to his findings in fact and finding in law the Sheriff states inter alia ;-

"Following on the evidence from the pursuers' witnesses I had no doubt what so ever the defender was well aware of the terms and conditions of the Secure Tenancy Agreement and the schedule thereto that she entered into with the pursuers. The defender gave evidence to the effect that the relevant terms and conditions had not been drawn to her attention. I did not believe this. She did accept the terms and conditions which were subsequently held as breached were reasonable..... Despite the defenders evidence that she and her husband had a volatile relationship and she was afraid of him, I took it to be significant that no effort was made by her to exclude him from the said premises until after service of the Notice of Proceedings for Recovery of Possession. Even then it was only after the summons was served that he left. That in my view did nothing to enhance the defenders credibility. If she had been so appalled by discovering about his drug dealing one might have thought that steps would have been taken to remove him from the said subjects by her immediately after him being charged, or even convicted. Instead she did nothing for over two years.........I also regarded it as being significant that the defender only took interdict proceedings against her said husband a matter of a few days before the original proof, and the interdict only appeared to have been obtained on the day before this one. I thought the proximity of these dates to the proof dates were not without significance and gave me doubts about her expressed views of her husband's activities. I simply did not accept the defenders explanation in relation to the money she held, namely that she had one thousand pounds in cash from a birthday present and three hundred pounds for housekeeping. The fact that the money was subsequently forfeited by the court does nothing in my view to enhance her credibility that she was unaware of her husband's dealings. I simply do not accept that...... I am entirely satisfied and I do not understand it to be disputed, that the local authority taking action against tenancies where the occupants or those for whom they are responsible are involved in drug crime, had a significant positive impact in the local community at large, and that the policy is a perfectly valid and reasonable one to promote. That is particularly the case when the policy is a discriminating one, in that it does not deal simply with personal drug addictions, but seeks to remove tenancies from people whose properties are being used in dealing drugs, as was the case here...... All of that being so the defender is in breach of her tenancy and knowingly so and the nature of the breach is that her husband was convicted of an offence which was punishable by imprisonment, being concerned in the supply of Cannabis for a period of over one month at her address."

 

6.      The appellant now appeals against the Sheriffs decision.

 

SUBMISSIONS FOR THE DEFENDER AND APPELLANT

 

7.      The written submissions on behalf of the defender are in the following terms;-

"It is submitted on behalf of the Defender and appellant, that the grant of the Pursuer's application in this case was not reasonable, given all the circumstances of the case.

The defender and appellant has been a tenant of the Pursuers for approximately twenty years, and although this is not part of the learned Sheriff's findings in fact, the length of her tenancy is within the knowledge of the Pursuers.

Throughout the course of this tenancy, the defender and appellant has been in regular employment, brought up her family, and has in no way come to the adverse notice of the police or Anti-social Behaviour Officers at South Lanarkshire Council until the date of the incident in February 2009. In addition, since the incident in February 2009, she has continued to reside in the tenancy for a period of over three years without coming to the adverse notice of the police or the Anti-social Behaviour Officers at South Lanarkshire Council in relation to any other matters. No anti social complaint or complaints of any kind relating to her tenancy has been made against the defender and appellant either before or after the date of incident in February 2009. The Court at first instance did hear evidence to the effect that she is regarded by her neighbours as being a good neighbour.

The original offence was committed in excess of three years ago; the conviction itself was in excess of two years ago; and the defender and appellant herself has not been charged or convicted of any criminal offence. No evidence was led to suggest that the defender and appellant has been anything other than a satisfactory tenant. There was no evidence to suggest that there has been any other illegal activity, nuisance or annoyance.

As a result of the incident in February 2009 and the subsequent conviction of her husband in January 2010 for drug dealing, her marriage has now disintegrated and she has been residing apart form her husband continuously since April 2011 and there is no prospect of reconciliation. The locks of the property have been changed to prevent him from entering the property. The defender and appellant has required to obtain Interdict with Power of Arrest against him from contacting her or approaching her.

If the remedy sought by the pursuer and respondent is carried out, the defender appellant would suffer a great deal of stress and anxiety. She stands to lose her home of over fifteen years and will require to find alternative accommodation which may not be in the same area as her close friends and family who have acted as a support network to her since the incident in February 2009.

The defender and appellant denies having been invited to an interview with the Anti-social Investigation Officers. If she had attended at the interview she would have been able to explain her circumstances and the facts of the case. This may have resulted in no proceedings been raised against her.

The learned Sheriff, at first instance, found that the removal of the defender from the tenancy is reasonable in all the circumstances of the case. It is respectfully submitted that in the whole circumstances as described above there is no longer any benefit to be achieved in now removing the defender and appellant from the tenancy. In the absence of any benefit, the remedy can no longer be regarded as reasonable in all the circumstances. It is also respectfully submitted that the removal of the defender and appellant from the property is disproportionate to the goal that the pursuer and respondent seeks to achieve in the course of their action regarding protection of the public interest. It is submitted that is disproportionate to the circumstances surrounding her husband's offence at the time, her own behaviour and conduct before the incident and her own behaviour and conduct before the incident and her own behaviour and conduct since.

In all the circumstances, it is respectfully submitted that the learned Sheriff failed to give sufficient weight in law to the whole circumstances relating to the defender and appellant and the facts of the case as a whole, and that on consideration of the whole facts and circumstances is not reasonable to grant decree as craved by the pursuer and respondent."

 

8.                  At the appeal hearing before me solicitor for the defender and appellant referred to the cases of Glasgow City Council v Cavenagh 1999 Hous LR7, Glasgow City Council v Lockhart 1997 Hous LR99, Glasgow City Council v Drummond SCOLAG Journal May 1998 P73 and Glasgow Housing Association v Hetherington 2009 Hous LR28. It was pointed out that in all these cases the tenant was the person who had been convicted of the serious drug offences. This case could be distinguished in that the appellant, who was the tenant of the premises, had not herself been convicted. It was her husband who had pled guilty to be concerned in the supply of cannabis. Solicitor for the appellant emphasised again that the respondents had let the subjects to the appellant by a tenancy agreement dated 2 March 2004. Before that there had been a tenancy agreement between the respondents and the appellant and her husband. This was the only occasion where there had been any concern about the appellant's use of the premises. She was not involved in the criminal prosecution.

 

9.                  I was referred to the ground for recovery of possession in terms of schedule 2 part 1 paragraph 2 of the 2001 Act which was applicable in this case

"... a person residing or lodging in the house with ... the tenant....has been convicted of (a) using the house or allowing it to be used for immoral or illegal purposes or (b) an offence punishable by imprisonment committed in, or in the locality, of the house.

In this case the appellant's husband had been residing or lodging in the house with the appellant and he had been convicted of an offence punishable by imprisonment committed in or in the locality of the house.

 

10. In these circumstances it was suggested it was reasonable that I allow the appeal and

grant decree of absolvitor in favour of the appellant.

 

11.        Solicitor for the appellant made a secondary submission that, if I was not prepared to absolve the defender, I should follow the approach of the Sheriff in the case of Glasgow Housing Association v Hetherington, supra and adjourn the case for a period of six months or one year to ascertain the appellant continued to observe the conditions of her tenancy.

 

SUBMISSIONS FOR THE PURSUERS AND RESPONDENTS

 

12.             Solicitor for the pursuers and respondents, in her written submissions, drew attention to the various statutory provisions and the Sheriffs Findings in Fact. It was concluded ;-

"The Sheriff did not accept that the appellant was unaware of her husband's activities and found aspects if her evidence unconvincing (page2 of the Stated Case). The Sheriff was entitled to assess the credibility and reliability of witnesses (including the Appellant) in the normal course and exercise of his judicial discretion.

In the exercise of his discretion in ascertaining whether it was reasonable or not to evict the defender, the Sheriff had regard to the relevant legislation and case law. He took into account in particular the provisions in the Housing (Scotland) Act 2001 and the authorities he was referred to at Proof by the parties as detailed in pages 13 and 14 of the Stated Case. He specifically referred to and considered the case of South Lanarkshire Council v Nugent to be of assistance.

In considering the issue of reasonableness the relevant factors are those contained in Section 16(3) of the Housing (Scotland) Act 2001 and the test which has emerged from Case Law which involves the Sheriff giving consideration to public interest, whether the defender knew the consequences of her husband's actions, the gravity of the offence and the consequences of removal.

These were each considered by the Sheriff who decided upon the weight to be given to each of them. The Sheriff considered the public interest element of the pursuer's policy; the offence committed by David Gillespie, the seriousness of the charge, the duration of the conduct, the quantity of the drugs found, their condition, their classification and where they were found, the quantity of money found and where it was found, the defenders financial circumstances, the consequences of removal to her and her general personal circumstances. The Sheriff did not believe the defender when she suggested that she did not know about the presence of the drugs in the tenancy or the drug activity, the terms of the conditions of her tenancy, questioned her motives in removing her husband from the tenancy some two years after the offence was committed and the timing of her civil action against him and his assessment of these matters was reflected in his decision. The Sheriff was entitled, given the conclusions or inferences drawn by him on the defender's credibility and evidence, to adjust the weight to be given to each of the factors in the case when exercising his discretion. There are no legislative requirements or case law that requires the Sheriff to give one factor more weight than another. The Sheriff is simply required to have regard to the matters referred to in section 16(3) of the said Act of 2001, amongst other matters he hears evidence on which are the facts and circumstances of the case. The factors/tests referred to in the case law are intended to assist and are not an exhaustive list. The Sheriff considered the weight to be given to each of the relevant factors and considered that all other factors outweighed the consequences of removal of the defender.

It is respectfully submitted that pursuer and respondent had a ground for recovery and it was reasonable to make the order. The decision of the Sheriff was one he was entitled to make based on the evidence heard by him and his assessment of the credibility and reliability of each of the witnesses. He was entitled, for the reasons given by him, to disbelieve the defender in crucial aspects of the case. His decision was one he was entitled to make in the exercise of his judicial discretion. The appellant, it is submitted, has not established that the Sheriff erred in law, nor exercised his judicial discretion wrongly and that for those reasons the appellants appeal must therefore fail.

 

13.             It was submitted at the appeal hearing before me on behalf of the respondents that the Sheriff had exercised his discretion reasonably. It was accepted that this case did not, as the cases quoted above had done, refer to the conviction of the tenant. In this case however, it was the tenant's knowledge of the situation which was the crucial factor. The Sheriff found that the appellant was well aware of the terms and conditions of the secure tenancy agreement and the schedule thereto. He did not believe the defenders evidence to the effect that the relevant terms and conditions had not been drawn to her attention. He did not believe that the appellant was not aware that her husband was concerned in the supply of cannabis. He did not accept the appellant's explanation in relation to the money she held, namely, £1,000 in cash from a birthday present and £300 from housekeeping. He states that the fact that the money was subsequently forfeited by the court did nothing to enhance her credibility that she was unaware of her husband's dealings. He simply did not accept that.

 

14.             It was the appellants case that the Sheriff did not sufficient weight to the factors set out in paragraph 4 of this note. It was submitted that a scrutiny of the Sheriffs note revealed that he had weighed up all the factors involved in the case. He was entitled to conclude that in the whole circumstances it was reasonable for an order to be made for the ejection of the appellant from the property. I was asked to refuse the appeal.

 

 

DECISION

 

15.        In this case the ground on which the Sheriff made an order for the recovery of possession was that contained in schedule 2 part 1 paragraph 2 of the Housing (Scotland) Act 2001, namely that a person residing or lodging in the house with the tenant had been convicted of an offence punishable by imprisonment committed in or around the locality of the house. The offence punishable by imprisonment of which the appellant's husband had been convicted was a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, namely being concerned in the supply of cannabis, a class B drug between 1 January 2009 and 10 February 2009. The minimum street value of the drugs recovered was £5,000 or more if sub divided. The appellant had in her house at the time of the search £300 cash in a black purse and a further £1,000 in mixed notes in her handbag which was found in the living room of the house. She claimed, and the Sheriff did not believe, that the £300 was for shopping and the £1,000 was a fortieth birthday present. The total amount of cash seized in the house was £3780.

 

16.             The Sheriff further held that the appellant was in breach of the Scottish Secure Tenancy Agreement Schedule dated 2 March 2004. Paragraph 3.3 is in the following terms:-

"In particular, you, those living with you, and visitors must not :-...

·         Use your house or allow it to be used for illegal or immoral purposes....

·         Misuse, abuse or sell controlled drugs. "

Valid notices in compliance with section 14 of the 2001 Act were served on the appellant and her spouse and in terms thereof the respondents raised these proceedings. It is clear that there was a ground of repossession available to the respondents. The issue for the Sheriff in terms of section 16(2)(a)(ii) of the 2001 Act was whether it was reasonable to make an order for repossession. It was accepted that such a decision was one for the Sheriff's discretion. I was referred to Macphail 3^rd edition paragraph 18.110:-

"Where an appeal is taken against a decision following the exercise of judicial discretion, it is not the function of the appellate court in the first instance to interfere with the judge's exercise of his discretion merely on the grounds that the appellate court exercise the discretion differently, and to proceed to exercise an independent discretion of its own. The appellate court's function is initially one of appeal only. It may set aside the judge's exercise of his discretion only for certain reasons..."

And at paragraph 18.111

"The appellate court may intervene if it is satisfied that the judge did not exercise his discretion at all; or that in exercising it he misdirects himself in law; or misunderstood or misused the evidence or the material facts before him; or took into account an irrelevant consideration; or failed to take into account some relevant consideration, or if his conclusion is such that, through no erroneous assumption of law or fact can be identified, he must have exercised his discretion wrongly. Expressions which had been judicially employed describes such a conclusion include :"completely" or "plainly" wrong; "wholly unwarranted ";"manifestly inequitable";"unreasonable"; and "unjudicial".

 

17.             In deciding whether any of these descriptions could be attached to the Sheriff's decision in this case, it is of assistance to have regard to the case of Glasgow City Council v Lockhart supra where Sheriff set out the four matters that required to be considered in deciding whether a decision to evict was reasonable in all the circumstances, namely (a) public interest (b) whether the defender knew what he was doing (c) the gravity of the offence and (d) the consequences of removal. I deal with these issues in turn :-

(a) Public interest .

The Sheriff stated in page 11 of his note;

"I am entirely satisfied, and I do not understand it to be a matter of any dispute, that the local authority taking action against tenancies where occupants or those for whom they are responsible are involved in drug crime, had a significant positive impact in the local community at large and that that policy is a perfectly valid and reasonable one to promote. That is particular with a case when the policy is a discriminating one, in that it does not deal simply with persons or drug addictions, but seeks to remove tenancies from people whose properties are used in dealing drugs, as was the case here."

(b) Whether the defender knew what he was doing.

The Sheriff completely rejects the appellant's evidence that she did not know what was taking place in the subjects. In finding in fact 7 the Sheriff concludes :-

"The defender was well aware that the said David Gillespie was concerned in the supply of cannabis in the dates above mentioned and allowed the said subjects to be used for that purpose knowingly between these dates."

(C) The gravity of the offence.

The relevant offence of which the appellant's husband was convicted was being involved in the supply of cannabis in a situation where £5,000 worth of cannabis and cash to the value of £3780 was found in the house occupied by the appellant and her husband. The Sheriff was entitled to regard this as evidence of major drug dealing and to regard this as a very serious offence.

(d) The consequences of removal.

It is clear that the Sheriff took this into account. At page 15 he states:-

"That the consequences of removal for the defender would be significant is not disputed. She was however aware of the consequences of allowing the said premises to be used for drugs activity. That activity went on for a period of over one month. She has financial facilities available to her to assist her with re-housing and taking account of all of the factors in this case it appears to me that the other factors outweigh the consequences of removal for the defender."

18.             The Sheriff referred in his Note to the conclusion reached by Sheriff in the case of South Lanarkshire Council v Lockhart supra at paragraph 21:-

"I have carefully considered all of the evidence led and the submissions made thereon. I have decided to grant decree as craved. I have taken into account each of the relevant circumstances affecting the interests of each of the parties and the possible hardship which might result if the order were to be made as well as the interests of the public. I have persuaded however that the pursuers arguments are valid."

The Sheriff in this case stated that he took the view that such was the case in the present case. The defender was well aware of the pursuer's policy with regard to drug dealing and allowing the house to be used for drug dealing. She had signed the tenancy agreement to that effect. She was aware of her husband's activities and offences which her husband committed were very serious. He concluded that while the consequences of removal for the defender would be significant, it appeared to him that the other factors outweighed the consequences of removal of the defender.

 

19.             I also have regard to the provisions of section 16 of the 2001 Act. Sub section 2 provides that the court must make an order for recovery of possession if it appears to the court that there is a ground for recovery of possession and it is reasonable to make an order. It was accepted in this case that there was a ground for recovery of possession. The issue, in terms of section 16(2) was whether it was reasonable to make the order. Sub section 3 requires the court to have regard to (a) The nature frequency and duration of the conduct taken into account by the court in concluding that the ground was established. It is clear in this case from what I have already said that this has been done. (b) The extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant. In this case the Sheriff has concluded that the main actor in the supply of drugs was the appellant's husband, but he has concluded she was aware of the drug dealing taking place in her house, took no steps to prevent it, and was indeed was herself in possession of money which the Sheriff attributed to the drug dealing. (c) The effect which that conduct has had, is having, and is likely to have on any persons other than the tenant. It was submitted for the respondents that this section was more relevant to a case of anti-social behaviour. The important point in this case was that it was the respondents' policy that there should be zero tolerance in respect of drug dealing in their properties and this was a reasonable policy. I accept that submission. (d) Any action taken by the Landlord before raising the proceedings, with a view to securing the cessation of that conduct. It is clear this provision relates to anti-social behaviour. It is my opinion that the Sheriff has had regard to the provisions of section 16 of the 2001 Act in reaching his decision.

 

20.             Having considered the Sheriff's stated case as a whole it is my opinion that there is no cause for me to interfere with the exercise of his discretion in respect of any of the grounds which are set out in paragraph 18.111 of Macphail, to which I have referred. The decision which the Sheriff was entitled to make in all the circumstances of the case.

 

21.             That being the case, the appeal fails. I was not addressed on the question of expenses. I have appointed a hearing on expenses before me at 10.30 am on 2 May 2012 in Airdrie Sheriff Court, Graham Street, Airdrie ML6 6EE.