Scottish Sheriff Court Decisions

B101/06

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

SHERIFF G J EVANS

in causa

ADRIANA VALENTE

residing at 2 Livingstone Crescent, St Andrews, Fife, KY16 8JL

APPELLANT

against

FIFE COUNCIL

County Buildings, Cupar, Fife

RESPONDENTS

 

CUPAR, 21 November 2006. The Sheriff, having resumed consideration of the cause, FINDS-IN-FACT:-

 

1.      The parties are as designed in the instance.

2.      The respondents considered the appellant's application for use of the appellant's premises at 8a Park Street, St Andrews as a house in multiple occupancy for up to 3 persons at the East Fife Area Regulation Sub-Committee Meeting on 15 June 2006. In reaching their decision, the respondents' Sub-Committee had regard to objections raised by Roger and Oula Jones, the Reverend Lawson R Brown, and Roy Dyckhoff in their letters attached to the written Statement of Reasons by the respondents dated 22 June 2006 to which reference is made brevitatis causa. In general the objections related to concerns regarding parking, waste management and noise.

3.      The property in question is an upper floor flat in a small terraced house, the upper storey being provided with a separate doorway at ground floor level. The property has a sitting room, kitchen, bathroom and three bedrooms. The appellant intends letting the property to three tenants at a time. She has rented it out since September 2004. She personally manages the premises on a day to day basis. She emphasises to the tenants that they must respect their neighbours. While Park Street is entirely residential, the surrounding area is a mixture of both residential and commercial property.

4.      The plan and other productions lodged on behalf of the appellant are accurate in their terms.

 

FINDS-IN-LAW:-

 

1.      The respondents, by founding their decision on the information supplied to them in the objectors' letters attached to their Statement of Reasons, have failed to exercise their discretion in a reasonable manner.

 

Repels the first and second pleas-in-law for the appellant but Sustains her third plea-in-law; Sustains the first and second pleas-in-law for the respondents but Repels their third plea-in-law; Accordingly Grants the appeal; Reverses the decision of the respondents' East Area Regulation Sub-Committee of 15 June 2006 to refuse the appellant's application for a house in multiple occupation licence for said premises at 8a Park Street, St Andrews without remitting the same back to the respondents' Committee for their reconsideration; Orders the respondents to grant such a licence for occupation by up to 3 persons only at said premises but subject to the following conditions, viz (a) only one car is to be permitted at any one time in respect of all the tenants occupying said premises; (b) waste management plans, including arrangements for end of term disposals, are to be agreed with all tenants; (c) the appellant or her duly appointed agent must respond to all reported incidents arising out of the use of said premises as a house in multiple occupancy within 12 hours; and (d) the appellant must meet all reasonable safety and environmental conditions which in the discretion of the respondents should be attached to their grant of said application; Finds the respondents liable to the appellant in the expenses of the action as the same shall be taxed and Decerns.

 

 

 

 

Sheriff

 

NOTE:-

 

BACKGROUND

 

This was an appeal by the landlord against the refusal by the East Fife Area Regulation Sub-Committee to grant her a licence to run her property at 8a Park Street, St Andrews as a house in multiple occupation for three people (vide the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000 - PHBE2-196). The appeal proceeds under Schedule 1, paragraph 18 of the Civic Government (Scotland) Act 1982 as amended. The case called before me for a hearing on 13 October 2006. The appellant was represented by Mr Murphy, Solicitor, St Andrews and the respondents by Miss Barrie, Solicitor, Fife Council, Cupar. The case was dealt with purely on the basis of submissions and I have made restricted Findings-in-Fact accordingly. The written Statement of Reasons (vide No 1 of the respondents' inventory) specifies that the application is refused under paragraph 5(3)(c)(i) of Schedule 1 of the Civic Government (Scotland) Act 1982, the premises not being suitable or convenient for use as a house in multiple occupation having regard to the location and character of the premises. The basis for that view was stated to be the letters of objectors detailed in the Statement and the representations made at the meeting. The Committee had regard to the concerns from the objectors about parking, noise and waste disposal. The Committee discussed the possibility of granting the application subject to certain conditions, viz only car to be permitted in respect of the tenants occupying the property, agreement of waste management plans with the tenants and the agent for the property to be able to respond to complaints or incidents within 12 hours. The prevailing view was that such conditions would not suffice and the social amenity and character of Park Street would be changed to its detriment by the grant of the application. By a majority of 3 votes to 2 the objections were upheld and the application was accordingly refused.

 

SUBMISSIONS FOR APPELLANT

 

Mr Murphy dealt with the reasons put forward by the objectors and accepted by the Committee. His submissions largely echoed the way he had set the matter out in the pleadings in the Record, No 7 of Process.

 

(a) Parking. It was maintained by the objectors that the perspective occupants of the property would more likely to have cars than a family but that was not necessarily so. It was arguable that such occupants were less likely to need parking spaces than, say, a large family of 6. If the occupants were students, they would be there for only 30 or so weeks in the year rather than a full year. There was no information before the Committee about the magnitude of parking problems in the area, where parts of Park Road were available for parking. The concern in the Statement of Written Reasons that there was "a possibility that a house in multiple occupation with 3 occupants plus visitors might lead to an increase in the number of cars" remained merely speculative, and for that reason should not have been taken into account by the Committee.

 

(b) Waste Management. Again the concern in the Statement of Written Reasons that there was a "possibility of HMO tenants failing to properly manage waste and rubbish" was speculation only with no proper basis in fact or evidence and should not have been taken into account by the Committee. This particular property had been let out to 2 tenants for the last 2 years without a single complaint. The appellant would monitor regularly for such problems and take appropriate management steps.

 

(c) Noise. The position on this factor was exactly the same. There had again been no complaints of any kind during the appellant's ownership of the property and would in any event be managed personally by the appellant if noise problems ever arose.

 

Mr Murphy then made a general objection in relation to each of these factors, that none of them had any direct relevance to the suitability or convenience of the premises for residential use. In any event, Mr Murphy argued, all such factors could have been dealt with by attaching conditions to the licence or by suspending or varying it during its lifetime or refusing to renew it at the end of its 3 year lifespan. The powers available to a licensing authority provided adequate protection to a neighbourhood. The reality of the matter, however, was that the social amenity, character and condition of Park Street had already been changed through 9 of the 13 properties in the street already being owned by absentee landlords and there being many HMO properties in the area around Park Street and in Park Street itself at Nos 2 and 4, which had had HMO Licences at one point. One further HMO licence would not mean any significant change to the neighbourhood and indeed would be in keeping with it. The decision was therefore perverse in those circumstances. The sub-Committee who met on 22 August 2002 did not uphold any of the objections about parking, noise and waste management in respect of the application for No 2 Park Street. These objections had been expressed in even more extreme terms than the current ones (vide Productions 4 and 5 for the appellant). I was also referred to Productions 7 and 8 for the appellant. These were 2 successful planning appeals for HMOs, one at 13 Westport Court, Bridge Street, St Andrews and the other at 14 Melbourne Place, St Andrews. As was stated at paragraph 36 of Production No 7:-

 

"In a small university town where I am informed that students make up some 30% of the population (presumably in term time), it is hardly surprising that some central areas close to university facilities will exhibit concentrations of student accommodation and that this will include many HMOs. A large student population is surely one important element of the character of St Andrews, and indeed the conservation area. I am not therefore persuaded that this proposal would have any adverse effect on that character."

 

As was stated at paragraphs 16 and 18 of Production No 8:-

 

"16. As multiple occupation is a residential use, the proposed change of use would have no effect on the residential character or amenities of the area, thereby satisfying policy H2 of the local plan ...

18. The practical effect of the proposed development would be to permit a third person in a two storey flat, which has the appearance of a terraced house, and which was previously rented to two people. As a house in multiple occupation, a licence is also required and its terms need to be adhered to. Other properties in the area are predominantly in similar residential use, and it no longer has the character of an area of family housing. In relation to sustainability, the proposal would enable an additional person to live within easy walking distance of the town centre and the university, reducing the pressure on accommodation resources elsewhere in the town, or outwith it, where residents are likely to be made more reliant on cars."

 

I was also referred to Productions 6 and 9 for the appellant, viz planning circular 4/04 and the Scottish Executive Guidance for Licensing Authorities on the mandatory licensing of houses in multiple occupation. While Production No 6 was meant to explain those aspects of the licensing scheme that would be of interest to planners, the comments made were nonetheless of some general value. The purpose of HMO licensing was stated to be the improvement of standards in the private rented sector in terms of both physical accommodation and the management of tenancy issues. The latter factor was described as:-

"The key to tackling the issues which most concerned neighbours of HMOs, such as building maintenance, cleaning, and noise or disturbance. For these reasons, licensing authorities are expected to give equal weight to management issues as to physical standards in deciding whether to grant, renew or suspend a licence." (vide paragraph 13)

 

And (at paragraph 20) the circular went on to state:-

 

"Where issues relate to the behaviour of the landlord or tenants, such as maintenance or noise, planners should take account of the controls offered by HMO licencing. They should also be clear that all kinds of people may live in HMO accommodation, and it is not necessarily the case that HMO residents would cause more disturbance than other types of household who occupy the property."

 

The element of control was also stressed in Production No 9, at Sections 2-3.3 and 3.

 

The Committee had proceeded under both errors of fact and law. The evidence before them did not entitle them to conclude that the statutory criteria for refusal had been met. There had been an insufficient factual basis for their conclusions. The Committee ought to have proceeded by way of factors (ii) or (iv) in para 5(3)(c) of Schedule 1 of the Act (ie the nature and extent of the proposed activity and the possibility of undue public nuisance) rather than (i) (the location, character or condition of the premises). I was also referred to the dicta of Lord Morison in the Inner House case of The Noble Organisation Limited v City of Glasgow District Council 1991 SCLR380 at 387, showing that the test of unreasonableness in the exercise of a committee's discretion was lower than that highlighted in the 'Wednesbury' test. At best for all the respondents, their committee had acted arbitrarily given their previous decision in respect of the other two properties in the street which had obtained HMO licences or, at worse, perversely. The Committee had hidden behind local knowledge, the contents of which had not been disclosed (cf Risky Business Limited v City of Glasgow Licensing Board 2000 SLT 923). It had to be borne in mind that an HMO was for residential purposes only and in any event the character of the locality and the use of the premises had already changed before the matter came up for consideration. A decision in favour of the appellant could be varied or suspended or conditions imposed that were proportionate to the sort of objections made before the Committee. That would encourage the kind of diligent management of HMOs envisaged by the Scottish Executive. I was invited to grant the appeal and attach any conditions to the grant of the HMO licence as I considered both appropriate and necessary.

 

SUBMISSIONS FOR RESPONDENTS

 

In reply, Miss Barrie submitted that the decision of the Committee involved a mandatory grant or refusal. The grounds for refusal were fairly widely expressed and left to the discretion of the Committee. It was accepted that there had to be material before the Committee justifying its decision. It had been accepted by Mr Murphy that sometimes location was of importance eg in the decision relating to Lawhead Road West. The Act did not give any restricted meaning to "location". I was referred to Sheriff Joanna Johnston's decision in this court in the case of Wilson v Fife Council dated 26 August 2004 in which she agreed that matters relating to locality might be taken into account (vide page 18) and my own decision to the same effect, B Anderson and A Anderson v Fife Council, dated 22 March 2006. Miss Barrie submitted that the correct test was as set out in Wordie Property Company Limited v Secretary of State for Scotland 1984 SLT 345 at 348 that there required to be a proper basis in fact for the decision and if there was no such basis, the decision would be quashed. To be overturned, a decision of the respondents had to be a decision that was so unreasonable that no reasonable authority would have reached it (vide Ranachan v Renfrew District Council 1991 SLT 625). It was permissible for the Committee to look at the factors of limited supply of parking facilities, excessive noise and lack of waste management as these were very specific to the question of the location of a property. The Committee could have adopted a blunderbuss approach and included all the statutory grounds but it was not necessary to do that if they all had a bearing on whether or not the licence should be granted. That had been my approach in 'Anderson' supra.

 

Looking at the written Statement of Reasons, there was nothing to suggest that the Committee had taken any irrelevant considerations into account. The appeal should be refused on that ground. Considering the material before it, the decision reached by the Committee had been within the bounds of reasonableness and could not be overturned unless it was so unreasonable that no Committee, properly apprised of the facts, could have returned it. The suggestion that Councillor Mitchell had backtracked from her view that there was over provision of HMOs in this case was met by the respondents' averments on Record that "The decision was the collective decision of the Committee and the comments of one member of the Committee are irrelevant." (vide Answer 6 at the foot). I was referred to the case of Piper v Kyle and Carrick District Council 1988 SLT 267 to the effect that even if one particular member's views were shown to be coloured or prejudiced, that would not necessarily invalidate the decision of the Committee taken as a whole. That approach was also valid and relevant in respect of the use by one member of unspecified local knowledge.

 

In relation to the powers a Committee had to regulate the use of HMOs, such powers were unwieldy and set out various procedural steps that had to be gone through before there could be a hearing. There might not be any action taken for some time. Such powers were moreover subject to appeal and there would be no suspension of the HMO licence during an appeal. The Committee had considered granting a licence subject to certain conditions but was entitled to form the view that it would not have been appropriate to go down that route.

 

As for the productions lodged by the appellant, the previous planning decisions were not relevant. Production No 7, the determination of a planning appeal for change of use from a flatted dwelling to an HMO for 3 persons at 13 West Port Court, Bridge Street, St Andrews showed that the reporter was considering the character of the property in a special way. I was referred to paragraph 30 of the determination which stressed that special attention had to be paid to the desirability of preserving or enhancing the character or appearance of the conservation area in question. It was not surprising that the reporter had concluded that the change of use would not have any adverse effect on a conservation area as no physical alteration was being made to the façade of the property. That determination did not assist the appellant as "character" in the Civic Government (Scotland) Act had a different meaning altogether. The decisions covered in Production No 5 involving licences for Nos 2 and 4 Park Street, were made 4 years ago by a differently constituted Committee and only 2 members of the present Committee were involved in that. Those 2 members had taken a consistent line but the other members were different. There was no written Statement of Reasons for No 2 Park Street so it was not known what factors weighed with the Committee then. The Scottish Executive Circular, Production No 6, was not a statement of the law. It might have a legal status in planning but it had no such status in the present context.

 

In short, the decision in question was not made unreasonably, contained no error of law and no breach of natural justice. I was invited to refuse the appeal. If, contrary to that submission, I were to allow the appeal, I was invited to remit it back to the Committee for their consideration on the basis that no technical appreciation of the application had yet been made.

 

DECISION

 

I do not accept Mr Murphy's argument that matters of parking, waste management and noise were "extraneous and collateral to the matters for consideration by the Committee" as the activity to be carried out in the premises, viz use as living accommodation, was one to which the premises were eminently suitable and convenient and such activity per se did not create the type of problems complained of. It is widely recognised that the terms "character" and "location" have to be given a wide meaning and may encompass matters affecting the amenity of an area (vide William Hill (Scotland) Ltd v Kyle and Carrick District Licensing Board 1991 SLT 559, per the Lord Justice-Clerk (Ross) at 561L - 562B). The matter of planning permission is, however, of some relevance, contrary to the submission of Miss Barrie. I accept that planning considerations are different from licensing considerations and one need not affect the other. As was stated by the Lord Justice-Clerk (Wheatley) in J E Sheeran(Amusement Arcades) Limited v Hamilton District Council 1986 SLT 289 at 291K-L:

 

"Clearly the decision by the Secretary of State's representative in the planning appeal and the reasons which he gave for that decision were not binding on the Licensing Committee when they came to consider an application for a permit under Section 34 of the Gaming Act 1968. To hold the contrary would be to wipe out the discretion vested in the Licensing Committee by Statute. The planning decision was made by one individual as a result of a view which he took of the evidence before him. Another body, discharging a different statutory function for a different purpose under discretionary powers was perfectly entitled to reach a different decision."

 

As, however, was stated by the Lord Justice-Clerk (Ross) in Leisure Inns (UK) v Perth and Kinross District Licensing Board 1993 SLT 796 at 799D-E:-

 

"... I am satisfied that the appellants were entitled to consider the matter of amenity, although since planning permission had been received for this application for a provisional grant of a licence, the appellants should, in my opinion, have been slow to hold at any detrimental effect on amenity was to be apprehended."

 

It respectfully seems to me that the matters considered by a planning reporter are capable of shedding some light on the concerns of the objectors even if they have been approached from a different angle. Taking each of the factors in turn,

 

(i) Parking

Mr and Mrs Jones stated that:-

 

"If more than 2 tenants arrive there will undoubtedly be more cars to park in a street already saturated with cars. If each house in Park Street has one parked car it's impossible to turn, and as it's a cul-de-sac one has to back out on to a busy road."

 

The Reverend Lawson Brown stated:-

 

"Park Street already attracts vehicles looking for parking space."

 

Mr Dyckhoff stated:-

 

"There is about enough parking on the street for 1.5 cars per house. With the division of 8 into 2 flats, and conversion of 8a to and HMO with 3 inhabitants, the pressure on parking is exacerbated. One car per house (8a and 8b together are regarded as just one house) and space for visitors seems to me about right for this street."

 

The reporter's views were as follows (at paragraph 18 of Production No 1 of the appellant's inventory):-

 

"The road outside the flat is wider at this end of Park Street than it is from most of the street and it would be possible to park on both sides without causing difficulty. In any event, the use of the property as an HMO for 3 people would not be likely to cause a significant parking issue in comparison to family use of the property."

 

The photograph (No 4/10 in Production No 4 in the appellant's inventory of productions) certainly shows the fact that Park Street is at least a car's width wider at the bottom end than at the top. This particular photograph certainly does not give the appearance of a street "saturated with cars". The photograph attached to the note by the Reverend Brown showing cars parked on the morning of 25 July 2006 does show a street more or less full to capacity. These things obviously depend on time of day and season of the year. It does not detract from the reporter's view that there is not going to be a significant parking issue with an increase in the use of this property from 2 persons to 3.

 

(ii) Noise. Mr and Mrs Jones stated that:-

 

"It will inevitably mean an increase in noise for us as we live in the next door terraced house."

 

The Reverend Brown stated:-

 

"Long term residents are subject to many anti-social indignities from rowdy homecoming revellers in the small hours, taxis coming and going at all hours and disregard for the neighbourly civilities that should enhance local life."

 

Mr Dyckhoff stated:-

 

"... HMO occupants are likely to be students; if unsupervised by a resident landlord, they tend to be noisy ..."

 

The reporter concluded that although properties in HMO use could be used more intensively than those in normal residential use, the licencing process could effectively control that.

 

(iii) Waste Management. Mr and Mrs Jones stated that:-

 

"Already there are wheelie bins overflowing and left all over the street."

 

The Reverend Brown stated:-

 

"Residents are agreed that their quality of life is diminished by the growing numbers of short terms tenancies with little or no regard for details such as, among others, the routine of waste collection."

 

Mr Dyckhoff stated:-

 

"(Students) allow the premises to deteriorate, eg with little care about rubbish bags and positioning of wheelie bins."

 

The reporter's view, subject to the same comment that the council could adequately control the management of an HMO through the licencing provisions, was that:-

 

"There is easy access to the refuse bins, which are kept on the pavement outside the property at the very end of the cul-de-sac." (vide paragraph 18)

 

I do not consider that the material before the Committee, as represented by the letters from the objectors as stated above in respect of all those matters, was of sufficient evidential value so as to discount the more robust view taken by the reporter on each of these matters. The considerations that weighed with the Committee appear, in light of the reporter's views, to be inaccurate, prejudicial and misleading. When taken together with the fact that the proposed use of these premises involves only a marginal increase from their existing use as rented accommodation for 2 persons into rented accommodation for 3 persons in the context of the established character of the street as given over largely to those seeking transient, as opposed to long term, permanent accommodation, it appears to me that they have exercised their discretion in an unreasonable manner. The appellant avers on record at Article 6:-

 

"The social amenity, character and condition of Park Street has already been changed through 9 of the 13 properties in the street already being owned by absentee landlords and there being many HMO properties in the area around Park Street (and in Park Street itself where numbers 2 and 4 Park Street have enjoyed HMO licences). Accordingly the addition of one further HMO would not make any change to the social amenity, character or condition of Park Street and indeed would be in keeping with the current social amenity, character and condition of Park Street."

 

Miss Barrie indicated in the appeal that she was not disputing the assertion that 9 out of the 13 properties in the street were owned by absentee landlords. According to the respondents' pleadings "... only one property in Park Street is currently licenced to operate as an HMO. One further property was licenced as an HMO but the licence expired on 17 September 2005 and no application for a renewal has been received by the (respondents)." While that may be so, it does not detract from the overall picture painted by the appellant. The plan of HMOs in the central area of St Andrews (production No 2 for the appellant) shows that in the small area bounded by Nelson Street, Largo Road, Kinnessburn Road and Pipeland Road, (which area includes Park Street within it) already has 25 HMOs. I cannot see how the addition of one more is going to make any material difference, especially for a street where full time residents are already in a minority. I agree with Mr Murphy that refusal in that context does not make a good deal of sense in light of the previous grant to No 2 Park Street in the teeth of the objections listed in the appellant's production No 5, ie extremely noisy parties, loud music, accumulation of garden refuse and lack of responsibility in retrieving the refuse bin from the street after it had been emptied, multiple parking of 5 cars by one tenancy group, anti-social behaviour and allowing the property to deteriorate. That apart, I fail to see how any reasonable Committee could have ignored the marginal difference the grant would have made to the pre-existing character of this locality, especially when, in the ways highlighted by Mr Murphy, a local authority can exert more control over premises with an HMO licence than over those without. While I can appreciate Miss Barrie's point that the control may not always be sufficiently effective given the delay that could occur before it was exercised, the fact remains that the appellant will be in a position to deal with complaints as and when they arise as she lives in the area. The Committee did consider that aspect and put in their written Statement of Reasons:-

 

"The Sub-Committee noted that Mrs Valente took personal interest in the day to day management of the premises and visited St Andrews 3 times per week."

 

The third proposed condition which the Committee considered attaching to the grant of the licence was in the following terms:-

 

"That the agent for the property was capable of responding to incidents at the property within 12 hours".

 

The written Statement of Reasons fails, however, to spell out why that was considered to be inadequate and not meet the objections raised. That aspect of the matter is simply ignored.

 

I have therefore come to the view that by ignoring the marginal nature of the change proposed by the granting of this HMO licence, by rejecting out of hand the conditions proposed that would go a long way to meet the objections made and by acting inconsistently with their previous grant in respect of properties elsewhere in the street, where similar objections were made, the respondents have exercised their discretion in an unreasonable manner and the appeal should accordingly be allowed on that ground. While I accept on the basis of the authority relied on by Miss Barrie that the decision of the Committee will not be tainted by the opinion and behaviour of one member, it is really the approach of the Committee as a whole to which I take exception. I agree with Mr Murphy for the reasons advanced by him that they have exercised their discretion in an unreasonable manner. I do not otherwise consider that they have erred in law or acted contrary to natural justice.

 

OUTCOME

 

As there was insufficient material before the Committee entitling them to refuse the application, I am prepared to order that it be granted rather than remitting back to the Committee for reconsideration (cf 'Risky Business' supra). I am satisfied that the conditions previously rejected by the Committee should be reinstated as sufficient to deal with the nature of the objections that were put forward. As I suggested in 'B & A Anderson' supra, the fact that the respondents may have to consider attaching conditions relating to safety and the environment should not prevent the application being allowed in principle, subject to such conditions being attached by the respondents as will meet their proper concerns and interests in such matters. I have accordingly attached such a fourth condition to the grant of the application. On the basis of success, I find the appellant entitled to her expenses as the same shall be taxed.