Agendas, reports and minutes

Minute of the meeting of the Highland Licensing Committee held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness on Tuesday 6 August 2013 at 10.30 am.

 

Present:

 

Dr I Cockburn, Mr A Duffy, Mr R Greene, Mr A Henderson, Mr R Laird, Mrs L Macdonald, Mr W Mackay (by video conference from Wick), Mr D Millar, Mr J Rosie (excluding 10.1 – 16.1), Ms M Smith, Mr J Stone and Mr H Wood (excluding 15.1 – 15.7).

 

In Attendance:

 

Mr A Mackenzie, Legal Manager (Clerk)
Ms S Blease, Principal Solicitor (Regulatory Services)
Mr M Elsey, Senior Licensing Officer
Mrs A MacArthur, Administrative Assistant
Ms A Macrae, Committee Administrator

 

Also Attending:

 

Inspector A Henderson, Police Scotland
Sergeant R Nicolson , Police Scotland

 

Also in Attendance:

 

Item 9.1 – Mr M Smyth, Mrs G Smyth, Ms H Trainer, Mr R McKinstry, Mrs A McKinstry, Mr H Black and Mrs L Black – Objectors
Item 9.1 – Ms H Morgan, Applicant
Item 10.1 – Mr C Duncan, Applicant
Item 10.2 – Mr M Afif, Applicant
Item 10.2 – Mr G Watson, Solicitor for the Licence Holder
Item 13.1 – Mr Robin MacBeth, Applicant
Item 14.1 – Mr Kevin Clark – Licence Holder
Item 14.1 – Mr P Taylor, Agent for the Licence Holder
Item 14.2 – Mr P B Roberts, Licence Holder
Item 14.2 – Mr D Mackenzie, Solicitor for the Licence Holder
Item 15.1 – Mr W Rae, Applicant
Item 15.2 – Mr P Brooks, Applicant
Item 15.3 – Mr P Worsfield, Applicant
Item 15.4 – Mr A Brown, Applicant
Item 15.5 – Mr R MacIver, for the Applicant
Item 15.6 – Mr M Bogue, Applicant
Item 15.6 – Ms L Murray, Solicitor for the Applicant
Item 16.1 – Mr A M O’Brien, Applicant

 

Ms M Smith in the Chair

 

The Chairman confirmed that the meeting would be webcast and gave a short briefing on the Council’s webcasting procedure and protocol.

 

Business

 

1. Apologies for Absence
Leisgeulan

 

None.

 

2. Declarations of Interest
Foillseachaidhean Com-pàirt 

 

There were no declarations of interest.

 

3. Confirmation of Minutes
Dearbhadh a’ Gheàrr-chunntais

 

There had been submitted for confirmation as a correct record the minute of meeting of the Committee held on 11 June 2013 which was APPROVED.

 

4. Licences Granted Under Delegated Powers
Ceadachdan a Bhuilicheadh fo Ùghdarras air a Thiomnadh

 

There had been circulated Report No HLC-049-13 (33kb pdf) by the Legal Manager  detailing those licences granted under delegated powers under the Civic Government (Scotland) Act 1982 and the Marriage (Approval of Places) (Scotland) Regulations 2002 in the period from 27 May 2013 to 23 July 2013.

 

The Committee NOTED the report.

 

5. Pending Applications - 3 Monthly Considerations
Iarrtasan ri Thighinn – Beachdachaidhean 3 Mìosach

 

There had been circulated Report No HLC-050-13 (17kb pdf) by the Legal Manager relating to applications which were currently pending for the grant or renewal of licences under the Civic Government (Scotland) Act 1982. The Report recommended that the Committee agree to defer the determination of the applications, either: (i) to allow them to be approved under delegated powers in the event that all responses and no objections were received, and all outstanding documentation has been received from the applicants, or (ii) to a future meeting of the Committee when the applications would be determined in terms of the Hearings Procedure.

 

The Committee AGREED the recommendation.

 

6.  Review of Public Entertainment Licence Activities and Additional Licence Condition
Ath-bhreithneachadh air Gnìomhachd Ceadachd Cur-seachad Poblach agus Cumha Ceadachd a Bharrachd

 

There had been circulated Report No HLC-051-13 (52kb pdf) by the Legal Manager inviting the committee to consider the proposals to review the activities which are currently licensed as public entertainment under Section 41 of the Civic Government (Scotland) Act 1982 and also to consider the introduction of an additional licence condition. 

 

Members had the following concerns:

• Licence requirements for boxing, wrestling and martial arts.
• What was the definition of a rave.  How was electronic music defined in this respect?
• Should all music events held at night not hold a licence in respect of safety issues?
• Do outdoor sports events require a licence? 

The Legal Manager advised that boxing, wrestling and martial arts were covered under Indoor Sports Entertainment Licences.  Raves were more clearly defined as outdoor music but the Senior Licensing Officer was to revisit the definition.  Outdoor events that are specifically fee paying require a licence, those that have no fee do not require a licence.   It was agreed not to alter this in the document before the consultation but to await the outcome of the consultation.

 

Ms M Smith, stated in connection with tanning premises that publicity should be carried out as some of these premises may not realise they require a licence. 

 

The Committee AGREED subject to defining “electronic music”, moving “raves” into musical performances and considering the licensing of outdoor exhibitions both fee paying and non-fee paying:

 

(i)  the proposed amendments to the list of public entertainment licensed activities as a basis for consultation.

 

(ii)  the organisations/persons to be consulted.

 

(iii)  to introduce the condition detailed in paragraph 5.3 of the report.

 

7. Late Hours Catering Licensing Policy
Poileasaidh Ceadachd a thaobh Frithealadh Uairean Anmoch

 

There had been circulated Report No HLC-052-13 (23kb pdf) by the Legal Manager inviting the committee to agree an additional condition relating to the provision of stewarding for late hours catering premises which open after 1.00 am in settlements which have late opening liquor licences (i.e. after 1.00 am). 

 

Members had the following concerns:

• The removal of litter in the area surrounding the late hours catering licence and the enforcement of this.
• Door stewarding – was this necessary in rural areas?
• Reports came from door stewards and there had been a noticeable change in trouble following the introduction of this condition.

The Senior Licensing Officer advised that the conditions already stated that litter was to be removed during and as soon as the premises closed.  It was for the Environmental Health Officers in TEC services to enforce.  The Legal Manager advised that the door steward condition only applied to premises which open after 1.00 am in settlements which have late opening liquor licences (i.e. after 1.00 am) i.e. nightclubs or clubs, and therefore didn’t apply to many rural areas. 

 

The stewarding had been seen to make a difference to the Inverness city centre and it was often the stewards that reported any incidents.

 

The Committee AGREED:

 

i)  the additional condition to provide steward(s) at the premises from 11.00 pm until the premises close;

 

ii) the revised conditions as detailed in Appendix 1 to the report.

 

8. Consultation on Regulation of Sexual Entertainment Venues
Co-chomhairle mu Riaghladh Aitreabhan Chur-seachadan Feiseil

 

There had been circulated Report No HLC-053-13 (42kb pdf) by the Legal Manager inviting the committee to agree a response to this consultation on the regulation of Sexual Entertainment Venues. It was proposed that regulation would be introduced by inserting provisions into the Civic Government (Scotland) Act 1982 and using the architecture and procedures provided by that Act to set conditions and determine the process for dealing with applications.  The local licensing authority would then have discretion to consider whether or not a licensing regime was required in their area. 

 

Members had the following concerns:

• Would the regulation covering female entertainment also cover male entertainment?
• Are there any venues that would be exempt - would this cover one night only events i.e. a stripper at a stag night and how would this be controlled?

The Legal Manager stated that the government could do a lead in time but from a specified date any premises providing sexual entertainment would require to apply for a licence.  One night only events would also need to be covered and it would be for the club/premises owner to control these events. 

 

The Committee AGREED the draft response to the consultation.

 

9.  Housing (Scotland) Act 2006
Applications for House in Multiple Occupation Licence
Achd Riaghaltais Chatharra (Alba) 1982
Iarrtasan airson Ceadachd Thaighean ann an Ioma-sheilbh

 

9.1  Premises – 8 Southside Place, Inverness

 

There had been circulated Report No HLC-054-13 (424kb pdf) by the Legal Manager relating to the application for a House in Multiple Occupation Licence from Taigh Lettings Ltd in respect of premises at 8 Southside Place, Inverness.  The Report invited the Committee to determine the matter in accordance with the hearings procedure.

 

The applicant, Ms Morgan was present.  Mr M Smyth, Mrs G Smyth, Ms H Trainer, Mr R McKinstry, Mrs A McKinstry, Mr H Black, Mrs L Black, Objectors were also present.

 

The Senior Licensing Officer, Mr Michael Elsey, introduced the application.  Mr Elsey advised that if, following the hearing, the Committee was minded to grant the application that delegated powers be provided to the Legal Manager to issue the licence upon completion of any works still required and upon submission of all relevant certification.  He further advised that in addition to the ten letters of objection which were appended to the report, a further letter of objection had been submitted after the deadline.  A separate letter setting out the reasons why the representation had been submitted late was circulated for Members to consider whether they were satisfied that it was reasonable for the respondent to have made the representation after the deadline for doing so.

 

Ms Morgan confirmed that she had no objection to the late letter of objection being considered.  The members, having considered the letter setting out the reasons why the representation had been made late, confirmed that they were satisfied that it had been reasonable for the respondent to have made the representation after the deadline.  The late letter of objection was then circulated to members for consideration.

 

Ms Morgan was then invited to address the Committee and made the following submissions.

• Ms Morgan advised that she understood many of the concerns of the objectors as she was aware that some previous owners had had people staying at the property who had caused problems for the neighbours.  She had been told that in the late 1990s the owner housed emergency homeless people at the property and these people exhibited antisocial behaviour and had frequent loud parties.  This, she believed, occurred before the HMO regulations came in.  Ms Morgan was also aware that the last owner had rented rooms out short term to builders who parked large vans in the street.  Ms Morgan was further aware that HMO had a bad reputation in Inverness but asked the Committee not to tar everyone with the same brush.
• In terms of all the objections, Ms Morven considered that they essentially boiled down to two main points – the type of people thought to occupy HMO and parking.
• In relation to the first concern about the nature of HMO occupants in general, Ms Morgan understood that there had been problems with some large HMOS in the city centre which were run more as hostel style bedsits and which were occupied by jobless, homeless people who had caused some problems.  She was not disputing this, but reminded the Committee that the good HMO did not make the press.  There were many good HMO.  Her own one would be a house for five people only who would share living room, kitchen and dining area.  It would not be a series of bedsits.
• Some of the objectors had queried why professional people would want to live in an HMO.  Ms Morgan advised, however, that she had two friends who lived in perfectly respectable HMO in Inverness and she doubted if their neighbours even realised the properties were HMO.  One was a thirty-year old partner in an accounting firm who chose to live in an HMO on Crown Drive rather than live on his own because he was a sociable type and liked company.  He had lived there for two and a half years.  The other one was a thirty-something social worker who was separated from his wife and had left his house to his wife so that his young children could remain in their family home.  As a result he could not afford to live in his own flat so for the last four years he had lived in an HMO.
• Ms Morgan advised that she would fill her HMO with working professional people who wanted to live in a shared house for a reasonable length of time.  At the moment she had two people living in the house: George, a 25-year old graduate who worked for the ambulance service and Sean who was a 22-year old pharmacist.  Three others were lined up to move in as soon as they were able.  They were Sarah, an anaesthetist, Coinneach a 31 year old graphic designer and Adam a hydrologist who worked for SEPA.  Ms Morgan had met them all and they were all fine upstanding members of society.  She advised that she would be selective about who she offered rooms to, since it was her money and her time which was tied up in this business.  She wanted tenants who would look after the place.  She did not want them to make a nuisance of themselves and disturb the neighbours.  She did not want to have to be called out to sort out disputes or to face the prospect of the HMO licence being revoked or not renewed in three years’ time.  She pointed out that this was not her only source of income so she was not desperate to fill the property with the first person who came along.  In fact, while selecting her first tenants, she had turned down a man who drove vans for AJG as in her opinion he was not suitable and he would have parked a big van outside the property.  She had also turned down a lady who was looking for a job but did not have one at that stage and had turned down a man who was on a six week secondment and only wanted a room for short time.
• In relation to concerns expressed by objectors about Ms Morgan’s experience in running an HMO, Ms Morgan advised that this was not the first property she had rented out.  In the past she had owned properties in both Westcliff on Sea and Nottingham and she had rented out rooms to lodgers, both whilst she was living there and whilst she was living elsewhere.  She advised that she had never had any problems with her lodgers.  They had never made a lot of noise or caused any damage to her property or to anyone else’s property.  They had never done anything to upset or disturb the neighbours. This was because Ms Morgan had always thoroughly vetted prospective tenants before accepting them and she advised that she would continue to do so for Southside Place.  She would only ever accept professional working people.  She would always meet them beforehand as she believed she could get a good idea about people by meeting them.  In addition, her practice was to obtain character references from their employers and from a previous landlord or professional person who knew them.
• Ms Morgan pointed out that she was currently doing everything entirely within the law and intended to continue to do so at all times.  There were two people living in the property at the moment and this was perfectly legal as the requirement for an HMO licence only arose where the property was occupied by three or more unrelated people.  One other person was in a flat which was a self-contained unit and did not come under the HMO licence regime, as had been confirmed by the HMO inspector.
• Ms Morgan advised that she had applied for a building warrant for works to reduce the number of bedrooms. She intended to convert the existing three single bedrooms to two larger double-sized rooms with en-suites.  Again she was going through the correct process and would meet the requirements of both building standards and fire safety in respect of these works.
• On the specific issue of parking, Ms Morgan advised that she had already taken steps to prevent her existing two tenants from inadvertently causing any problems.  She had written out instructions about where they could park and about leaving sufficient space for people to turn out of their drives or garages.  She had gone through this with them as part of their induction and had made them sign a sheet accepting all her instructions.  A laminated copy of this instruction sheet had also been put up by the front door so that any visitors could see it and the tenants had been asked to ensure their visitors abided by the instructions set out in it.  There was space for two small cars on the front drive and all tenants who had cars were required to obtain car parking permits for the street.  Ms Morgan had also given details of the tenants’ names and their car details, including registrations, to several neighbours, along with the phone number for the property so that if any of her tenants parked in any way that blocked any of the neighbours the neighbours could ring up straight away and ask the tenants to move their car.  The details would be updated and reissued to the neighbours when new tenants with cars moved in.
• Ms Morgan pointed out that the concerns raised by objectors about the safety of the street in terms of cars rushing down it and using it as a shortcut were nothing to do with this HMO application.  This was a separate issue which should be raised with the Council and Ms Morgan advised that she would be happy to back any plans for traffic calming measures.
• In conclusion, Ms Morgan asked the Committee not to judge her by the actions of her predecessors and not to assume that her HMO was going to be bad news for the neighbourhood.  She intended to fill it with honest, hardworking, responsible people of good character who would not cause any problems with parking or antisocial behaviour.

Ms Morgan’s instruction sheet which she required all tenants to sign by way of acceptance was circulated to members and to the objectors for consideration.  The Chairman, Councillor Maxine Smith, then asked the objectors whether they had any questions they would like to ask of the applicant.

 

Addressing Ms Morgan, Hester Trainer advised that she did not mean to judge any of Ms Morgan’s tenants, but while they might be working at present who was to say they would be working or what they would be doing once Ms Morgan obtained her licence?  Mrs Trainer expressed concern about the unpredictable nature of the arrangement.  There would be five people in the house and one in the flat, so six people in total.  Six completely independent people leading completely independent lives.  The likelihood was that those six people would have friends, family or partners staying over at some stage.  Mrs Trainer lived next door and had two children aged two and four.  She felt that to have potentially twelve different people a year coming and going from the house next door was just too many people coming and going: too much access by too many.

 

Mrs Trainer was reminded by the Clerk that she would be given the chance to make a statement in due course but at this point in the Hearing she had been asked only if she had any questions she wished to put to Ms Morgan.  Mrs Trainer then asked Ms Morgan whether her tenants’ leases would be renewed on a six-monthly basis.

 

Ms Morgan confirmed that the tenancy agreement she had submitted with the  HMO application was based on the short form of tenancy and was initially for a minimum of six months.   It continued automatically from month to month after that.  Her preference would be for people who would stay for at least a year.

 

Mrs Trainer then asked whether, notwithstanding Ms Morgan’s preference, given that the initial period of the lease was only 6 months, potentially there could be twelve different tenants per year. Ms Morgan confirmed that while theoretically that was correct, she would be looking specifically for people who were likely to stay at least a year as it would cause a lot of hassle for Ms Morgan if tenants kept changing.   It was not possible to know for certain exactly how long someone was going to stay at the property, as their circumstances could change and they might have to move away.  Ms Morgan assured the objectors, however, that she did want long-term tenants.

 

Mark Smyth then asked Ms Morgan what provisions for refuse collection she would make.  Ms Morgan advised that the flat and the house currently had a green bin and a blue bin each and there was also one brown bin, the garden area being very small.  The HMO inspector had suggested that she ask the Council for two blue bins for the house and she had telephoned the Council about this.  She had been told by the Council, however, that they would only issue a second blue bin for the house if there were six or more people living in it.  So she had told the people in the house that if the house bins become full, they should also use the ones for the flat.  Ms Morgan also advised that she had printed and put up in the kitchen the timetable for the bin collections.  Tenants were aware that they must put the bins out and take them back themselves.

 

There being no further questions which the objectors wished to put to Ms Morgan, the Chairman asked the members if they had any questions.

 

Councillor Richard Laird asked Ms Morgan whether the agreement the tenants had signed regarding parking instructions was part of the tenants’ tenancy agreement or was just something she had told them she would like them to abide by.  Ms Morgan advised that it was not part of the tenancy agreement as she had only been made aware of concerns over parking when she was made aware of the objections and had gone to speak to some of the neighbours about their concerns.  However, in the four months during which she had been frequently visiting the house she had never seen Southside Place full of cars.  The first section of the road near to the pub was usually full of cars but the remaining section of the road was often empty.  There were hardly any cars parked along section of the road which was two way.  So Ms Morgan’s understanding was that the concerns were actually more about where people park than about there being an insufficient number of parking spaces and that was what she had addressed very clearly in the instruction sheet for tenants.

 

Councillor Allan Henderson then asked Ms Morgan whether she lived in close proximity to the house and also asked if she had considered giving the neighbours mobile numbers for tenants as well as the house telephone number for use if the tenants were causing parking problems.  Ms Morgan replied that it was likely that if the tenants’ cars were there then the tenants themselves were likely to be in and she had asked them to make sure that if the phone rang they answered it.  She accepted that there was a possibility that they might have parked at the house but not be in.  However, her tenants were responsible people and she had specifically asked them not to park in such a way as to cause problems for neighbours.  If she found out they were ignoring this and were parking in the wrong place and causing problems she would throw them out.

 

Councillor Laird then asked Ms Morgan to describe briefly the application and vetting process she intended to use for prospective tenants.  Ms Morgan advised that she first of all spoke to them on the telephone to find out a bit about them, their age, what they did for a living and why they wanted to live there.  This was so that she did not waste their time coming to the house if they were clearly not suitable.  Those selected for further vetting then came to the house and had a look round to see if it suited them and Ms Morgan would then find out a bit more about them such as what their interests were.  If they seemed suitable and they indicated that they wanted to move in, Ms Morgan then asked them for references.  They required to send her written references from their employer and their landlord.  She had bought a package of different tenancy documents, two of which were suggested letters for use in writing to a previous landlord and an employer asking for references so she usually emailed these to the prospective tenants.

 

Councillor Allan Duffy asked whether, since the parking agreement was not part of the tenancy agreement, it would be possible to throw a tenant out for causing disruption by parking in the wrong place.  Ms Morgan advised that she could alter the tenancy agreement style specifically to cover parking issues if that were required.  However, the tenancy agreement already contained provision requiring the tenants not to cause disturbance or nuisance to neighbours, so any nuisance caused by parking would come under that general catch-all clause.  The first time they did it she would simply speak to them about it and warn them but if they consistently did not park in the right place she would be terminating their tenancy.

 

The Clerk, Alaisdair Mackenzie, Legal Manager, then advised the Committee that this type of short tenancy was not a secure tenancy and therefore there was very little which the landlord had to do in order to terminate the tenancy.

 

There being no further questions from members, the Chairman invited the objectors to address the Committee.

 

Mark Smyth then made the following submissions.

• He clarified that he was not speaking for everybody as it wouldn’t be appropriate but was speaking as someone who has lived in Southside Road for nearly 21 years and who was very aware of the traffic problems that Southside Place presented.  Contrary to what Ms Morgan had stated, generally it was a very congested road.  It was a small one way single track road with only one footpath.  Currently houses from Southside Road had driveways with access to Southside Place.  As a result of these driveways and on-street parking it could be a very difficult road to navigate safely.  Car parking at the Corrie and Aberfeldy Lodge Guest House could also add dramatically to traffic on the street.  Any significant increase in traffic could create serious safety issues.  A lot of young children and a lot of elderly people lived in that area.  The objectors’ concerns about safety issues and increase in traffic were therefore not irrational.  They were also very concerned about increase in general activity.  There would be six people with cars who would each have friends with cars coming to the house.  It was a single track road with only one footpath and there were already times when residents could not get out of their driveway because of parked cars - and this was even before any HMO licence was granted.   They were concerned therefore about the general rise in activity, and all from a safety point of view.

Hester Trainer made the following submission.

• She understood that planning permission was only required, and therefore parking was only considered, when there were to be more than five people in an HMO.   In this case, however there would effectively be six people in one property as there would be five people in the house and another person in the adjoining flat.  The flat and house had an adjoining door from the kitchen so effectively there would be six people in one property.  For this reason, Mrs Trainer considered that the parking should be more of an issue.
• Mrs Trainer advised that she had bought her house next door three years ago and it had needed repairs.  Planning had been very strict about it being a Conservation Area and about protecting the heritage of the property and the surrounding area.  Everybody who lived in that street paid a lot of care and attention to their house.  Ms Morgan’s property as shown in the home report wasn’t immaculate needed a lot of repair.  If six people who did not care about the property became its occupants, this would just exacerbate something which already stuck out like a sore thumb as it was.  Mrs Trainer felt that this was not the place for an HMO.  She was not suggesting that Ms Morgan’s tenants would be bad people, but it would not be their own property and they would not care for it in the way that everybody else cared for their houses.  It was a street where people did look after their properties and it was street with families, children and elderly people.  It was just not the right area for an HMO.

Robert McKinstry made the following submission.

• Mr McKinstry and his wife objected on three main points.  The first was the location of the property.  The Committee members were all aware that the property was in Crown Conservation Area and they would be aware of the Scottish Government’s definition of a Conservation Area – as an area of special architectural or historical interest the character of which it is desirable to preserve or enhance.  In Mr and Mrs McKinstry’s opinion the establishment of an HMO would do neither.
• Mr McKinstry referred to advice offered to the Inverness Planning Committee by its own officers in August 2006: “When the Conservation Area contains many residential properties the effect of small changes can lead to gradual erosion of its quality”.  He submitted that the establishment of an HMO was hardly a small change and would provide immediate erosion of quality in the Conservation Area.
• Mr McKinstry also referred to a Scottish Office Inquiry Reporter’s statement in 1994 that “any form of bedsit use would not be desirable in this wholly residential area”.  He submitted that nothing had changed in the meantime to alter the opinion of the Scottish Office Reporter.
• Secondly Mr and Mrs McKinstry objected on the basis of the condition of the property and the number of persons likely to occupy it.  He drew members’ attention to the site plan at Appendix 1 of the report.   He advised that originally the site had contained a semi-detached three bedroomed family home with front and rear gardens.  The original house had been extended possibly in breach of regulations, in the early 1990s and on that site which was originally a semi-detached family home with a front and rear garden there was now a little house called Rose Cottage occupied by two adults.  Behind the HMO there was another building which had been referred to as a flat or a granny flat and was currently occupied by one adult.  The HMO proposal sought permission for five adults at 8 Southside Place.  That would give a total of eight adults on a site which was originally that of a semi-detached family house.  Ms Morgan had admitted that there would undoubtedly be visitors who will undoubtedly stay overnight or over weekends because that is what visitors sometimes did.   So there was the potential for 14 or 16 adults on site.  Mr McKinstry advised that he was not saying that this would happen, but the potential for it to happen was there.  He therefore submitted that there would be overcrowding on the site as unless the owner proposed to exercise draconian control she would be powerless to stop the reception of visitors.
• Mr and Mrs McKinstry’s third objection was the possibility of undue public nuisance and the type of persons likely to occupy the HMO.  The owner had indicated that rooms would be let to professional people and she had gone some way to explain what she understood by professional people.  Mr McKinstry and his wife, however, considered it was a rather naïve assumption to assume that professional people were always highly reputable.   It was also rather naïve to assume that character could be judged at an initial interview.  The owner had indicated to Mr McKinstry’s neighbours that the property would be her “pension fund” and, although she had indicated in great detail how she could control tenants, the inflow of money would be more important than altruistic feelings for the community.  The owner was unlikely to be able to afford to let rooms other than to whomsoever could afford to pay and sooner or later it would be the case that the fine words about the respectability of the tenants might no longer be so fine.  Mr and Mrs McKinstry were only too aware of the anti-social behaviour of people who already lived in HMO.  This venture was a commercial enterprise and was inappropriate for this small community in this conservation area.
• Finally, in relation to the possibility of undue public nuisance, Mr McKinstry advised that, as had been pointed out, the immediate neighbourhood comprised a mixture of established residents and families with teenagers and young children.  The established residents, some of whom had been there 50 years or more, had invested in the Crown area of Inverness and have chosen to stay because the vicinity was relevantly secure.  Tenants of an HMO might have neither a sense of loyalty to the area nor any feeling of civic responsibility as, by definition, they are going to be transient.  Those with teenagers and young children had chosen to live in the area because of its amenities, particularly the schools and the safe environment in which their children could walk to school and to the local play park.  They trusted that their children could be brought up in an unthreatening, secure neighbourhood where their immediate neighbours were known and relatively constant.  Mr McKinstry submitted that of very considerable relevance to the hearing was the fact that within one hundred metres of the property there was a pre-school nursery.  It behoved all to ensure that the young children attending that nursery could do so in total safety without any chance whatsoever at their impressionable age that they might be confronted with any kind of anti-social behaviour. 

Hugh Black then addressed the Committee.

• Mr and Mrs Black thought this should be a family home not an HMO.  Historically it had been a family home.  It had been overdeveloped in breach of planning controls as had been referred to and the Scottish Office Reporter had had to be called in to sort the problem out.  As Mr McKinstry had advised, the Reporter had stated that any form of bedsit use would not be appropriate for this property.
• The property was now owned by a limited company and not by an individual or by Ms Morgan.  She was the sole director of that company but it was a limited company.  Ms Morgan had told Mr Black that this HMO was her pension fund.  It was a commercial operation there to maximise profits rather than being a normal family residence.  It was a recently formed company with only £100 capital.  There was no track record of that company to look back on and that was worrying.  There was no known experience of that company managing an HMO.
• One of the problems was also the day to day supervision of the HMO as Ms Morgan did not stay there and she would not be there every day as far as Mr Black understood because she worked full time.  How were any day to day problems to be resolved when there would be nobody there on site?
• Historically parking had been a problem at Southside Place and although Mr Black knew that this was probably more of a planning issue than one which could be taken into account in this application it did affect amenity of the area.  In the past illegal parking had taken place obstructing gates and access to garages and causing loss of amenity.  The property had a very small frontage and there were three dwellings on this site as a result of the previous overdevelopment in breach of planning control.  Given the small frontage, available parking there was already used up both on street and off street.  So if another five cars came with the tenants in the HMO that was going to cause problems because they would then spill over and encroach on other residents’ parking places on the street.  Cars could only park with a resident’s parking permit and the resident’s parking permit could only be obtained if the car was registered at the house.  So the tenants would need to re-register their vehicles at 8 Southside Place to obtain a resident’s parking permit.  And as far as visitors were concerned if there were five visitors, four of them would be parking illegally because only one parking ticket per house was allowed for visitors.
• Overall, Mr and Mrs Black thought this property was unsuitable for an HMO and that it should really revert to or be let out as a family home and not as an HMO.

The Chairman ascertained that all of the objectors present who wished to address the Committee had spoken.  She then invited Ms Morgan to address any points raised in the objectors submissions.

 

Ms Morgan responded to points raised by the objectors as follows.

• In terms of the number of occupants, the occupant of the flat had been mentioned, suggesting that the number of people was six rather than five.  However, the flat was a separate residence with its own facilities, including a separate kitchen, lounge, bathroom and bedroom, and the HMO Inspector had said it did not therefore form part of the HMO.  There was currently an adjoining door between the flat and the house which was locked and which could not be opened because nobody could find the key.  This door, however, was being removed and replaced with a sixty minute fire wall as per instructions from the Fire Inspector.  This would be done along with the rest of the works required.
• In terms of the home report, the one which Ms Morgan had seen when she bought the property was prepared by Shepherds in or around April and had indicated only had one problem item which was the woodwork on the porch which was slightly rotten.  Everything else was fine.  Mrs Trainer had also mentioned in her letter that she had been round the house and did not think it was big enough.  It was, however, definitely big enough.  The HMO inspector has already said it was fine and was big enough, with enough kitchen space and bedroom space and everything that an HMO required.
• In terms of the number of people, yes, tenants might potentially have visitors and if there were a lot of visitors they could not all park in the road.  Visitors were unlikely to all be there at the same time, however, and it had to be borne in mind that this was not going to be a house full of bedsits.  It would be five people living together and who wanted to continue living there so there would be peer pressure to ensure that visitors did not cause problems.  The situation would be very different from that at larger properties with ten or twenty bedsits occupied by people who did not know each other.
• With regard to the comments about the Conservation Area, Ms Morgan confirmed that she was changing nothing about the outward appearance of the house.  There were already two HMO in Crown Drive which was also in the Conservation Area, so Ms Morgan did not see how the Conservation Area status affected the HMO application.
• In terms of the flow of money, Ms Morgan felt Mr McKinstry had implied she would become money grabbing as time went on.  She advised, however, that she was in full-time employment and had other pensions she had been paying into for the last 20 years.  She just did not want to put all her money into pension funds as they were all based on the stock market.  So she had decided to invest in property as well as these other pensions.  Ms Morgan further advised that she had set up a company for this property investment for tax reasons.  She would not be taking any profits out of the company until she retired.  It was therefore more tax efficient to run this venture as a company and to put the profits back in and then to keep running it as a company when she retired.  Ms Morgan advised that she had no intention of selling the company as long as she was capable of managing it.  She was undertaking this venture for the long term and not to make a quick buck now.  In terms of the £100 capital, this was the standard amount that was set up in shares and it was what Ms Morgan’s accountant had advised her to set up.  Ms Morgan owned the company and would be paying all the bills.
• In terms of the day to day supervision of the HMO, Ms Morgan lived in Westhill which was ten minutes away by car.  She worked on the Longman Industrial Estate which was also 10 minutes away by car.  She had a mobile phone.  All the tenants had her mobile number and she have given it also to the next door neighbours at number 8A who were retired people so were there a lot of the time.
• Ms Morgan’s understanding in terms parking was that parking was not based on house frontage.  The road was owned by the Council and not by the people who owned the houses.  As long as someone had a valid parking permit and parked responsibly, they could park anywhere on that road.   Ms Morgan had checked this with the Council.  They had advised that provided her tenants could prove that they were living there with a tenancy agreement, that they had a registered car and that they were the owners of the car they could get a parking permit. They would also require to change their address on their driving licences.
• In terms of the comments about public nuisance, it was correct that there was no guarantee that professional people would not cause public nuisance.  The only way of assessing character, however, was by meeting prospective tenants, just as when employers interview people before offering them a job.  The short term tenancy agreement, although it provided for a minimum of six months, did contain provision for Ms Morgan to give tenants a month’s notice if they were causing problems.  Equally there was provision allowing the tenants to give Ms Morgan notice if they circumstances changed and they had to move away.  Ms Morgan stressed therefore that she could get rid of people if they were causing nuisance and she wanted to know if people were causing a nuisance as she did not want other residents upset, but she did not think they would be.

The Chairman then asked the members whether they had any questions to ask the objectors.

 

Councillor Laird asked the objectors whether having heard from the applicant this morning they were satisfied with the application and vetting process she intended to use for prospective tenants and with the traffic parking document she intended getting them all to sign.

 

Mr McKinstry responded that he was absolutely not satisfied as the applicant had just said there was no way that she could check the character of people other than by interview and this was totally wrong.  The other objectors present also advised that they were not satisfied.

 

Councillor Laird sought clarification from the objectors as to whether this was an absolute opposition to the principle of an HMO in this location or whether it was particular specifics of the application that they did not like and, if so, what they would wish to see changed.  Mr Smyth responded that his objection was based on safety concerns and the unsuitability of extra people in the area.  He advised that it was not related to HMO.  Mr Black responded that it was the principle which he opposed.  He had nothing against HMO but this particular house and location were not suitable for an HMO.   The property was suitable as a large family house and not as an HMO.

 

The Chairman pointed out there could be guest houses or B and B’s in that area as well and that would be similar.   There being no further questions, the Chairman asked Ms Morgan whether she wished to add anything to her earlier submissions.

 

Ms Morgan advised that she would just like to point out that this house already had five bedrooms and could have been bought by a family who could have five children all of whom had cars and friends who would be visiting them.   A family could very legally put 10 to 15 family members in it provided they met all the safety regulations.  It was not as if she was asking to have a house built or was extending it.  It already existed as a house and already had five bedrooms.

 

The Chairman then invited the objectors to sum up.

 

Gill Smyth submitted that the objectors only had Ms Morgan’s word that she was  going to do anything she said she was going to do.  Secondly, she advised that her and her husband’s house was their legacy to their children.  An HMO in the area would result in depreciation in the value of the properties in the surrounding area as well.  So it should be borne in mind that whilst the HMO might increase Ms Morgan’s pension fund, it would also reduce the value of her and her husband’s legacy to their children.

 

Mark Smyth then reminded the Committee that before the house was extended it had originally been a three bedroom house.  It had, in Mr Smyth’s opinion, been overextended and the extensions were, in his opinion, a considerable fire risk.  Mr Smyth’s late father-in-law had been an NHBC Inspector and had said that the house would have been condemned were it a member of the NHBC.  One of the walls was plywood which had been rendered with concrete and, in Mr Smyth’s view, this was a serious fire concern.  Mr Smyth considered it ridiculous that there would be up to eight adults on that site.  The house, he submitted, had certainly been overextended and was completely unsuitable.  In conclusion, he stressed this was not an irrational objection from his point of view as it was purely based on concern for the safety for people in the area and the actual tenants within the property itself.

 

Hester Trainer then summed up her objection as based on unsuitability and the unpredictability of the proposal.  She considered it more appropriate that the property be occupied by people who wanted it as a long-term home, and not just as a temporary residence.

 

Robert McKinstry advised that again he would speak on behalf of both his wife and himself.  He referred to the Chairman’s comment that there were bed and breakfast establishments in the area and he accepted that this was true.  He submitted, however, that the difference between a bed and breakfast accommodation and an HMO was that a B&B was supervised generally twenty-four hours a day.  This HMO, like many other HMO, would be left unsupervised, particularly in the evening and through the night and that was what Mr McKinstry and his wife were very concerned about.  He accepted that the house could have been bought by a family comprising a mother and father and three or four adult children, but he considered that would be perfectly acceptable and perfectly organised.  His point was that in that situation there would be someone there exercising some degree of control or restraint or having high expectation of behaviour, whereas in an HMO that would not be the case.  He further advised that he was a little hurt at the words “money grabbing” being quoted by Ms Morgan as he did not recall that he or any of his neighbours had used those words.

 

Hugh Black summed up his objection by pointing out that while it was was history now that the property had been overdeveloped in the past in breach of planning control, this HMO proposal would not have arisen and would not be now under discussion had that overdevelopment not happened.  The fact remained that it had happened, but nevertheless he considered the proposal was not appropriate for this house and for  a turnover of people to be coming into the community and then leaving again - whether they were professional people or not.  He considered that this house, in keeping with the rest of the properties in the area and in Southside Place, should be a family residence for an ordinary family rather than an HMO for strangers.

 

There being no other objectors present wishing to make any closing submission, the Chairman advised that the Committee would move to debate.  Before the debate commenced she reminded members, however, that the issues relevant to the planning assessment of HMO and the licensing assessment of HMO were distinct and that, as members would be aware, many things mentioned during the hearing would be relevant to a planning assessment but not to a licensing assessment.

 

Councillor Willie Mackay then opened the debate.  He advised that having considered the ten letters of objection and the submissions made by the objectors at the hearing, he had the following comments.

• With regard to the objections relating to people visiting the tenants of the HMO, there was no way of knowing how many visitors there would be.  He had noted the other objections including those about the residential nature of the area, elderly residents, perceived parking and road traffic issues and the potential behaviour of tenants.  However, he had also noted that no objections had been raised by any of the agencies and services which had been consulted on the application, as listed on page 44 of the report.  Given this fact, he considered there to be no evidence to support refusal of the application.
• Moreover, having listened to Ms Morgan, he had no doubt that this HMO would be run to a high standard.

Councillor Allan Duffy then commented as follows.

• Having read and listened to all the matters raised by the objectors, he considered there had definitely been a number of assumptions made by the them over HMO.  He considered that HMO should not all be tarred with the same brush.  There were bad people living in some HMO, but there were also very good people living in HMO.
• However, Councillor Duffy did have concerns about the road.  He knew the road very well and had driven up it frequently.  Each time he had driven up it, it had been quite congested by traffic and by people parking.  It was very narrow.  He agreed with Councillor Mackay that Ms Morgan had made the case that she would run a HMO very well.  However, he did not think that this would be the correct place for an HMO and he agreed with the residents in the area that it should be used as a dwelling place for a family.  He advised that he was therefore considering putting forward a motion to refuse the application on the ground that it would cause a nuisance predominantly for the residents in the area and would also causes disruption for traffic in the area and endanger the safety for residents whether young or old.  He advised that he would be looking for a seconder for such a motion.

The Chairman advised Councillor Duffy that before formally proposing his suggested motion he should consider what his evidential basis for it was.

 

Councillor Richard Laird then asked for clarification from the Clerk as to the distinction between the statutory grounds for refusal of planning applications for HMO and applications for HMO licences.  He recalled from a previous debate on an HMO licence application that legal advice had been given to the effect that traffic management and waste management issues were planning considerations but were not licensing considerations, so with respect to these particular considerations the Licensing Committee’s hands were tied.  He requested confirmation from the Clerk that this was the case.

 

The Clerk advised that his advice had not changed.  Waste management could be considered as part of the licence application but could be controlled through enforcement of the standard conditions of the licence.  Parking and traffic considerations were, however, planning considerations rather than licensing considerations.

 

Councillor Laird suggested therefore that the traffic/parking issues which Councillor Duffy had raised as grounds for refusing the licence application were grounds which were relatively slim.  He then commented on the application as follows.

• He considered it unfortunate that the concept of an HMO was now predominantly associated with bedsits housing those with drug and alcohol problems.  This meant that communities now had alarm bells ringing whenever they heard that an HMO was planned for their area.
• Given what the Committee had heard from the applicant at the hearing, however, including the process she intended to use to vet applicants and what she had tried to do to deal with potential parking issues, he was quite satisfied that she would be a responsible manager for an HMO.
• With regard to points raised regarding the impact of an HMO on the Conservation Area, there were already HMO in this Conservation Area.
• The grounds relied on by the objectors seemed to be based on things which “might” happen, but the Committee knew from advice given by the Legal Manager in a previous case that without evidence to indicate that these things would happen, they were not competent grounds on which to refuse the application.
• Councillor Laird’s view therefore was that there were no grounds on which to refuse the application which would be sustainable on appeal.

The Chairman expressed agreement with Councillor Laird and asked whether any other member who wished to speak.  There being no other member wishing to speak, the Chairman asked Councillor Duffy whether he intended to move for refusal of the application, reminding him that if he did wish to do so his motion required to be based on evidence and not on anecdotal thoughts or speculation.

 

Councillor Duffy advised that he still wished to put forward the motion he had referred to earlier and would look for a seconder for it.  He did not consider his knowledge of the area to be “anecdotal thoughts”.  His local knowledge of the area was relevant.  He advised that if he did not get a seconder for his motion, he would like it to be recorded that he objected to the application.

 

The Clerk asked Councillor Duffy to state his reasons for moving refusal of the application and the basis for those reasons.  Councillor Duffy advised that his reasons were that the application should be rejected “on the grounds that it would be a public nuisance and safety for the people in the area”.

 

The Clerk asked Councillor Duffy to state what evidence of public nuisance he was relying on in support of this reason.  Councillor Duffy advised that the public nuisance he was referring to was “the fact the parking issues are a public nuisance in the area.  When there are vehicles parked there it is hard for vehicles to pass them which also incorporates safety into the street as well”.

 

The Clerk asked Councillor Duffy whether that was the full extent of his reasons and his evidence in support of his reasons and Councillor Duffy confirmed that it was.

 

The Clerk then advised the Committee that Councillor Duffy had not put forward a valid basis on which to refuse the application.

 

There being no seconder for Councillor Duffy’s motion, the motion fell.

 

There being no member (other than Councillor Duffy) otherwise minded, the Committee then AGREED to grant the application in principle subject to standard licence conditions, with powers being delegated to the Legal Manager to issue the licence once all works and certification had been submitted, it being noted that Councillor Duffy wished his dissent recorded in the minute.

 

Mr Duffy wished his dissent from the decision to be recorded.

 

10.  Civic Government (Scotland) Act 1982
Application for Late Hours Catering Licence
Achd Riaghaltais Chatharra (Alba) 1982
Iarrtas airson atharrachadh a thaobh Ceadachd Sholarachd Uairean Anmoch

 

10.1 Premises – MacDonald’s Restaurant, 12-22 High Street, Inverness

 

There had been circulated Report No HLC-055-13 (129kb pdf) by the Legal Manager relating to an application for a Late Hours Catering Licence in respect of premises at MacDonald’s Restaurant, 12-22 High Street, Inverness.  The Report invited the Committee to determine the matter in accordance with the hearings procedure.

 

The Applicant, Mr Craig Duncan, was present.

 

On hearing from Inspector A Henderson and the Applicant, the Committee AGREED to hear the late representation from Police Scotland.

 

Mr Duncan stated that the High Street, Inverness was struggling and he wanted to improve this by looking at overnight business.  He currently had 78 employees.  He currently operated late hours catering on Thursday to Saturday to 3.00 am and looked to extend this to Wednesday to Sunday to 3.30 am.  The late hours catering had been very successful and the business was growing.  Seven extra posts had been created to cover these late hours, and another two would also be created.  The safety of both employees and customers was a priority and he had taken on SIA qualified stewards from 10.00 pm.  He had worked one of the late shifts and there had been no problems, with the street having been cleared by 3.45 am.  Burger King at the Retail Park was open until 4.00 am and Tesco had 24 hour opening.  He asked the Committee to grant a late hours catering licence to 3.30 am to give consistency. 

 

Members had the following concerns:

• Had there been any incidents at all in the current late hours opening?
• Was the late hours licence solely for the downstairs area?
• Policy, following consultation, had just been put in place and approval would undermine our policy.
• Nightclubs currently closed at 3.00 am and this provided a drip feed of dispersal from the city centre.  Two night clubs were very close to these premises.

Inspector A Henderson stated that these hours were out with current policy.  If granted this could prolong the congregation of late night revellers in the city centre.  Currently people were dispersed and in taxis by 3.30 am and if the application was granted it would be 4.00 am before people were dispersed from the city centre.

 

The applicant assured members that he provided a safe service with no incidents.  This would be good for customers and good for Inverness.

 

The Senior Licensing Officer stated that it was only Burger King’s drive through that was open at that time and the largest supermarkets. 

 

The Committee AGREED to refuse the application as the hours sought included those outwith the Committee’s Policy agreed on 5 February 2013 and having regard to the possibility of undue public nuisance and public order or public safety.