Dundee City Council’s recent policy of clamping down on unruly occupants in houses of multiple occupancy (HMOs) has received a setback after a sheriff overturned a recent decision to refuse an HMO licence.
The council’s licensing committee had rejected an application by landlord Kenneth Faulds, of Sunningdale, who wanted to turn a flat in Forebank Road into a student residence.
He appealed the decision to the sheriff court in Dundee and his appeal was upheld by Sheriff Richard McFarlane after a hearing last month.
In his judgment, Sheriff McFarlane ruled that the city council erred in its decision to refuse the licence, stating it was, “an unreasonable exercise of its discretion.”
He added the licensing committee had “purported to make determination that was outwith the scope of the act.”
Sheriff McFarlane has now ordered the council to grant the HMO licence and held the authority liable for expenses.
The sheriff found that the committee had based its decision on “normal day-to-day living noise” which, he said, has “no statutory basis” and had pointed out the committee accepted that “undue public nuisance could be managed by other means”.
Accordingly, he said, the committee “had based all their decisions on an incorrect material fact.”
The court heard the committee’s decision had been made after a female resident at 15c Forebank Road had objected to the application for an HMO for Flat B.
Ms Indigo V pointed out there was already a student flat in the block of four and had complained previously about excess noiseand anti-social behaviour from Flat D.
Having heard representations from Mr Faulds’ legal team and taking into account Indigo’s complaints, the committee ruled it was not suitable for an HMO licence, not because of night-time noise or anti-social behaviour but on the excessive day-to-day living noise of the students.
The sheriff ruled it was not entitled to base its decision on that and stated it was “only when that noise is exceeded and becomes a source of undue public nuisance that other considerations could be applied.”
He found that, in the committee’s experience, the residents of HMOs “can cause more disturbance due to the independent nature of the individual occupation of such premises.”
Council licensing convener Stewart Hunter was “disappointed” with the ruling but said the committee respected the sheriff’s decision.
He added that it would have no effect on the council’s policy or decision-making on HMOs in other areas of the city.
“I think we always treat every HMO application on its own merits,” he said.
“With the ones we have refused over the last year or so, there has been a history of problems so that’s why these decisions were made.
“Public safety always comes first with us and it will continue to so I don’t think it will affect how we deal with any future applications.”
For further coverage of the implications of the sheriff’s ruling, see Wednesday’s Dundee edition of The Courier.