BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Killen & Anor v. Dundee City Council [2008] ScotCS CSIH_43 (15 July 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_43.html
Cite as: [2008] CSIH 43, [2008] ScotCS CSIH_43

[New search] [Help]


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Osborne

Lord Kingarth

Sir David Edward, Q.C.

 

 

 

 

 

 

[2008] CSIH 43

XA172/07

 

OPINION OF THE COURT

 

delivered by LORD OSBORNE

 

in

 

APPEAL

 

From the Sheriffdom of Tayside, Central and Fife at Dundee

 

in the cause

 

DR. CHRISTOPHER ROBERT JAMES KILLEN and MRS. ALISON KILLEN

Pursuers and Appellants;

 

against

 

DUNDEE CITY COUNCIL

Defenders and Respondents:

 

_______

 

 

 

Act: R.G. Skinner, Advocate; Balfour & Manson (Blackadders, Dundee) (Pursuers and Appellants)

Alt: S.L. Stuart; Dundee City Council (Defenders and Respondents) - Gillespie McAndrew

 

15 July 2008

 

The background circumstances

[1] The appellants are proprietors of residential premises at 30 Constitution Crescent, Dundee. The respondents are the local authority having responsibility in the City of Dundee and, as such, in terms of section 2(2) of the Civic (Government) (Scotland) Act 1982, "the 1982 Act", are the licensing authority for the administration of licensing in relation to activities in connection with which licences are required under Part II of that Act. In particular, the respondents are responsible for the administration of licences for houses in multiple occupation, as required by section 44 of the 1982 Act and the provisions of the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000 (S.S.I. 2000/177).

[2] In or about June 2006, the appellants submitted an application to the respondents seeking a licence for the premises at 30 Constitution Crescent, Dundee, as a house in multiple occupation for occupancy by four tenants. The position in relation to that property was that it had been purchased by the appellants, primarily as the main residence for their daughter, who was a student at Dundee University undertaking a five-year course. It was intended that she would reside in the property along with two of her friends as tenants; it was hoped that a further tenant could be attracted. Several letters of objection were submitted to the respondents shortly after the making of their application by the appellants.

[3] The appellants' application came before the respondents' Licensing Committee at their meeting on 14 June 2007. On that occasion, the appellants' application was presented by a solicitor acting on their behalf. A number of persons who had objected to the grant of the application appeared in person. It was explained to the Licensing Committee that Constitution Crescent was a development of some 39 properties of which three currently were licensed as houses in multiple occupation. The various letters of objection, which had been submitted in June and July 2006, shortly after the making of the appellants' application related to historic events prior to that time. The property of the appellants itself had not been occupied until September 2006. Thus none of the objections that had been lodged related to the particular property which was the subject of the application, nor did any objection relate to the activities of the appellants' daughter, or her friends. The property was well maintained in good condition.

[4] At the meeting on 14 June 2007, the Licensing Committee decided to refuse the appellants' application. Subsequently the appellants requested a statement of reasons for that decision, in terms of paragraph 17 of Schedule 1 to the 1982 Act. The reasons for the decision were set out in a letter, dated 2 July 2007, from the solicitor acting for the respondents to the appellants' solicitors. That letter gave full details of the submissions that were made to the Licensing Committee in relation to the application. Thereafter, in the final paragraph of the letter, the Committee's reasons for refusal of the application were set out. That paragraph is in the following terms:

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

[5] Thereafter, the appellants appealed to the sheriff against the decision of the Licensing Committee, in terms of paragraph 18(1) of Schedule 1 to the 1982 Act. Paragraph 18(7) of Schedule 1 to that Act provides:

"(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."

It is provided by paragraph 18(9) of Schedule 1 to the 1982 Act that:

"(9) On upholding an appeal under this paragraph, the sheriff may -

(a) remit the case with the reasons for his decision to the licensing

authority for reconsideration of their decision; or

(b) reverse or modify the decision of the authority, ... ".

[6] In their appeal to the sheriff, the appellants sought the reversal of the decision taken by the Licensing Committee on 14 June 2007 and also a finding that they were entitled to the licence sought. By interlocutor dated 17 October 2007, the sheriff refused the appeal. Thereafter, the appellants appealed his decision to this court.

[7] In supporting their appeal, the appellants have lodged three grounds of appeal in the following terms:

"(1) The learned sheriff erred in refusing the appeal. In particular he erred in holding that the respondents were entitled to refuse the application on the ground that the premises were unsuitable having regard to their location. This was on the basis that 'this development' had been designated 'as a Home Zone ... The purpose of developments such as these is also to provide a quiet, safe and stable environment for the likes of retired people and families. This cannot be achieved if there are HMOs in the midst of such an area.' The Transport (Scotland) Act 2001 gave a local traffic authority power to designated as a Home Zone any road for which they are the traffic authority. Such designation was to be for the purposes laid down in section 74(2) of the 2001 Act. The designation or otherwise of a road as a Home Zone was irrelevant to the issue of whether the premises were suitable for use as an HMO.

(2) The learned sheriff erred in holding that 'it was reasonable and responsible for the respondents to have the view that Home Zones are primarily for families and older people and that HMOs do not fall within the desired ethos or makeup of a Home Zone.' A Home Zone is a road designated as such by a local traffic authority for the purposes of safety, improvement or preservation of the environment, improving the facilities provided on or near the road, or the implementation of their transport policies. It is a tool for use by transport authorities. Its purpose is to create benefits for all persons using or in the area of the road; not to create an area the 'ethos or makeup' of which was primarily for families and older people.

(3) The learned sheriff erred in refusing the appeal. Having held that there was no basis for a finding of lack of suitability due to possible problems with tenants, he should have held that there was no basis for refusal under paragraph 5(3)(c) of the first Schedule to the Civil Government (Scotland) Act 1982 and should have reversed the respondents' decision."

 

Submissions of the appellants

[8] Counsel for the appellants moved the court to uphold the appeal and to remit the case to the sheriff with a direction to remit it to the respondents ordaining them to grant the application; failing which, the matter should be remitted to the sheriff with a direction that he should remit it to the respondents for reconsideration of their decision. Counsel then outlined the factual background to the matter, to which we have already referred. Thereafter he drew our attention to the statutory framework within which the application of the appellants had had to be considered. The licensing of houses in multiple occupation had been the result of the provisions of section 44 of the 1982 Act and the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000. In practical terms, if a house were to be occupied by three or more persons who were not of the same family, or two or more families, then a licence was required. The main licensing provisions were to be found in Schedule 1 to the 1982 Act. Paragraph 5(1) of the Schedule set out the options which were available to the licensing authority. Paragraph 5(3) set forth the basis upon which an application should be refused. It provided that the licensing authority should refuse an application if, in their opinion, one or more of four sets of circumstances existed. Otherwise they were under a duty to grant the application. The only part of paragraph 5(3) relevant to the present case was sub-paragraph (c). It provided:

"(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;

... ".

[9] Counsel went on to draw our attention to the provisions of the Transport (Scotland) Act 2001, "the 2001 Act", section 74 of which provided for Home Zones. It was important to note that section 74(1) gave a local traffic authority power to designate, as a Home Zone, any "road" for which they were the traffic authority, "with a view to implementing measures for securing any of the purposes mentioned" in section 74(2). It was important to note the purposes referred to in section 74(2) of the 2001 Act. They were:

"(a) to improve the safety of persons using the road or any area in the

vicinity of the road;

(b) to improve or preserve the environment through which the road runs;

(c) to improve the facilities provided on, or in the vicinity of, the road in

such a way as to bring benefits to any persons using the road (not being persons using motor vehicles); and

(d) to any extent to implement their transport policies".

It was interesting to see that when the 2001 Act was passed, no amendment was made to paragraph 5(3) of Schedule 1 to the 1982 Act, entitling or requiring the licensing authority to refuse an application for a house in multiple occupation on the basis that the premises were situated in the vicinity of a Home Zone.

[10] Turning to the particular circumstances of this case, counsel submitted that the sheriff had erred in law in that he had failed to recognise that the Licensing Committee had itself erred in law et separatim exercised its discretion in an unreasonable manner in refusing to grant the application solely because the premises were situated in a Home Zone area. In this connection he relied upon Leisure Inns (UK) Limited v Perth & Kinross District Licensing Board 1993 S.L.T. 796, particularly the observations of Lord Justice Clerk Ross at page 798I-J, where he said that behind every ground for refusal there had to be adequate reasons and for those reasons there had to be a proper basis in fact. The Committee's reasons could be found in he last paragraph of the letter, dated 2 July 2007. It was obvious from its terms that the reasons given for refusal had to be seen as an invocation of paragraph 5(3)(c)(i) of Schedule 1 to the 1982 Act. There were no findings of fact in relation to any other possible basis for refusal. However, it was not even said that the particular premises involved were unsuitable for use as a house in multiple occupation. It appeared that it was the location of the premises which were seen as the problem. The error of the sheriff was in failing to recognise that the Licensing Committee had erred in the manner described. In particular, he had failed to appreciate that the fact that a house was situated in an area in which there were roads designated as Home Zones was not ipso facto, or even prima facie a ground for it being deemed an unsuitable location for a house in multiple occupation. The fact that such a house was situated in a Home Zone was neutral.

[11] Looking at the provisions of section 74 of the 2001 Act it was evident that the purposes for the securing of which a Home Zone might be designated were limited. Looking at those purposes, it could be said that Home Zones might be a tool used by the local transport authority to create safe, or safer, areas for those using the roads in a particular location, in order to preserve the environment, by implementing traffic measures. The kind of purposes that might be served might be the slowing down of traffic at or near a school or in a densely populated area. No doubt, if appropriate traffic calming measures were introduced in a particular area, that would benefit, among others, the children and the elderly living in that area, but that benefit would be available equally to all other sections of society. The purposes of a Home Zone were not confined to children or the elderly. The sheriff had erred in agreeing that the Licensing Committee were entitled to hold that premises with HMO licences did not fall "within the desired ethos or makeup of a Home Zone". In concluding that houses in multiple occupation were unsuited to being in Home Zones, the Committee itself had erred and the sheriff had erred in supporting their decision. No connection had been established by the respondents between what had been done to the particular roads designated as Home Zones in the area in question and the suitability of the particular premises as a house in multiple occupation. The Licensing Committee had made certain unwarranted assumptions about the nature of Home Zones, first, that they were populated by "the likes of retired people and families"; and, second, that a quiet, safe and stable environment would necessarily be prejudiced by the grant of a licence for a house in multiple occupation. Such assumptions were quite unwarranted. Furthermore, the Licensing Committee had no basis for their assumption that the particular premises in question would be likely to cause any disturbance or nuisance, if the licence were granted. Indeed, the sheriff had specifically found at paragraph 21 of his decision that nuisance and disorder were not the reason for the refusal and that if such things had been found, there would have been no basis for such a finding. It was therefore impossible to see how he had concluded that the Licensing Committee were entitled to hold that "a quiet safe and stable environment for the likes of retired people and families ... cannot be achieved if there are HMOs in the midst of such an area." Since there was no proper basis for refusal of the application, the Licensing Committee had been bound to grant it. No other point was involved in the case. Hence there was no purpose in remitting the matter to them for reconsideration.

 

Submissions of the respondents

[12] Counsel for the respondents moved the court to refuse the appeal and affirm the decision of the sheriff. The ground of decision of the Licensing Committee was the ground of refusal enshrined in paragraph 5(3)(c)(i) of Schedule 1 to the 1982 Act. What was in issue was the location of the premises in Constitution Crescent, Dundee. It was important to take into account section 74(2)(b) of the 2001 Act, which enacted that one of the purposes which might justify the designation of a Home Zone was the improvement or preservation of the environment through which the relevant road ran. It should be understood that the designation of a road as a Home Zone did not confer extra powers upon the local traffic authority; the general statutory powers of such an authority continued to be available. It was acknowledged that the Licensing Committee had given a very particular reason for the refusal of the application. Counsel submitted that that reason reflected the inconsistency between the purpose of the Home Zone and the existence of housing in multiple occupation. Counsel drew attention to material published by the Scottish Executive relating to Home Zones, which was available in the appendix from page 40 onwards. That material showed that a designation would normally be made in a residential area.

[13] Counsel accepted that a Home Zone might be enhanced by the creation of a house in multiple occupation, in particular circumstances. The letter dated 2 July 2007, he accepted, contained a very general statement, but it had to be read in the particular context. He agreed that there was nothing specific to this particular proposed house in multiple occupation that could be identified as objectionable in a Home Zone. The respondents had been entitled to have regard to the purpose of the designation in deciding the suitability of the location of the relevant premises. The location of the premises concerned was simply not suitable having regard to the objectives of the Home Zone. That view was based on the possibility of problems emerging from the use of the premises as a house in multiple occupation, although no particular adverse consequences had been envisaged. The Licensing Committee had perceived a general incompatibility between houses in multiple occupation and a Home Zone. The Committee had been entitled to come to the conclusion they did, having regard to their past experience. If that were the position, then the sheriff himself had not erred in upholding the Committee's decision.

[14] As regards remedy, if the court were of the view that the appeal should be allowed, there would require to be a remit to the sheriff to grant the licence sought. Having regard to the reason given by the Committee for their refusal, it was agreed that it would not be appropriate for there to be a remit to them for reconsideration.

 

The decision

[15] In considering whether the licensing authority and subsequently the sheriff erred in law, which was the sole contention before us, it is necessary to examine the reason given by the Licensing Committee for their decision to refuse the application. That reason is to be found in the last paragraph of the letter, dated 2 July 2007. The reason is stated very generally. It is said:

"Rather, the main issue here is the designation of this development as a 'Home Zone'. This is not a suitable area for HMOs. There is more to the concept of a 'Home Zone' than just pedestrianisation and measures to control traffic. The purpose of developments such as these is also to provide a quiet, safe and stable environment for the likes of retired people and families. This cannot be achieved if there are HMOs in the midst of such an area....."

It is quite evident from the language used in the formulation of the Committee's reason for refusal that they perceived there to be a necessary fundamental conflict between the designation of a Home Zone and the authorisation of a house in multiple occupation.

[16] In examining that reason, in our view, it is necessary to consider the nature of Home Zones. Section 74 of the 2001 Act provides:

"(1) A local traffic authority may, with a view to implementing measures for securing any of the purposes mentioned in subsection (2) below, designate as a Home Zone any road for which they are the traffic authority.

(2) The purposes mentioned in subsection (1) above are -

(a) to improve the safety of persons using the road or any area in the

vicinity of the road;

(b) to improve or preserve the environment through which the road runs;

(c) to improve the facilities provided on, or in the vicinity of, the road in

such a way as to bring benefits to any persons using the road (not being persons using motor vehicles); and

(d) to any extent to implement their transport policies."

The reference to "transport policies" in that provision is defined in subsection (5) of section 74. It provides:

"In this section 'transport policies', in relation to a local traffic authority, means the policies formulated from time to time under section 63(2)(b) of the (Transport Act 1985) by the local authority who are the local traffic authority."

[17] Having regard to the range of possible statutory purposes, which are said to be the purposes for which a Home Zone may be designated, it is unclear what was the underlying purpose or purposes sought to be achieved by the designation of this particular Home Zone. There was no evidence before the Committee as to, and we simply do not know, what was the particular purpose or purposes that the local traffic authority in fact had in view, in designating the roads in the particular area in question as a Home Zone. It may have been that one or more of the purposes referred to in section 74(2) of the 2001 Act, other than "to improve or preserve the environment through which the road runs", constituted the reason for the designation. In any event, the benefit of any of these purposes is contemplated by the legislation as being available for all members of the community, not just "retired people and families". Further, it has to be borne in mind that the designation is to be "with a view to implementing measures for securing" any of the relevant purposes. Those measures are to be measures taken by a local traffic authority. Having regard to the nature and functions of a local traffic authority, the measures will plainly be the kind of measures which a local traffic authority might be expected to take with a view securing any of the relevant purposes, as opposed to more general measures.

[18] Having regard to all these considerations, the question is whether the existence of such a designation can be seen as necessarily inconsistent with the grant of a licence for a house in multiple occupation. We have no hesitation in reaching the conclusion that there is no such necessary inconsistency, even where the designation is to achieve a quiet environment. A house in multiple occupation may be premises in which, for example, several elderly or retired persons, who desire to live together in a quiet environment, may live. On the other hand, such a house might be occupied by students, or other young people, whose lifestyles might not be conducive to the attainment of a quiet environment. However, the point which must be kept in view is that there is nothing about the licensing of a house for multiple occupation and its subsequent use as such which would, in itself, necessarily be destructive of a quiet environment. Thus we conclude that the necessary inconsistency perceived by the Licensing Committee represents an error of law on their part, both as to the nature and purposes of Home Zones and also as to the characteristics of houses in multiple occupation. In refusing the appellants' appeal to him, the sheriff, in turn, erred in law in failing to identify the error of law on the part of the Licensing Committee. Had it been the case that the Licensing Committee had concluded, as a fact, that the granting of this particular application in respect of these particular premises would have led with a reasonable degree of probability, to activities jeopardising the environment of the area, the position would have been different. However, in this case, the Committee expressly stated that it "readily accepted that none of the problems referred to in the letters of objection relate to [the appellants'] premises".

[19] For all of these reasons, we conclude that this appeal must be allowed, We shall remit the case to the sheriff, with a direction to him to allow the appeal from the Licensing Committee. Since there is no relevant reason for the refusal of the licence, in consequence of the obligation in paragraph 5(3) of Schedule 1 to the 1998 Act, the Licensing Authority will therefore be under an obligation to grant the application.

[20] It was a matter of agreement before us that the issue of the expenses in this court and in the Sheriff Court should be determined following success. Accordingly, we shall find the respondents liable to the appellants in the expenses of the proceedings in this court and in the Sheriff Court.


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_43.html