Minute of the meeting of the Highland Licensing Committee held in the Council Chamber, Council Headquarters, Glenurquhart Road, Inverness on Tuesday 6 September 2011 at 10.30 am.
Mr P Corbett, Mr R Greene, Mr W Mackay, Mr D Millar, Mrs M Paterson, Mr R Pedersen, Mr A Rhind
Non Members in Attendance:
Mr R Durham (Local Member Vote for item 4.3)
Mr A Mackenzie, Legal Manager (Clerk)
Inspector J Neil, Northern Constabulary
Inspector R Aitken, Northern Constabulary
Mrs E Gardner, Trading Standards Officer
Mr S Hiddleston, Assistant Trading Standards Officer
Mr A Anderson, Technical Officer (HMO)
Mr M Elsey, Senior Licensing Officer
Ms A Macrae, Committee Administrator
Miss J Green, Clerical Assistant
Also In Attendance:
Item 4.3 – Mr K Macleod, (Applicant)
Item 4.3 – Mrs L Murray (Solicitor for the Applicant)
Item 4.3 – Mr J Campbell (Objector)
Item 4.3 - Mrs G Mackintosh (Objector)
Item 4.3 – Mr I Sandwich (Objector)
Item 4.3 – Mr and Mrs D Campbell (Objectors)
Item 4.3 – Dr P Elbourne (Objector)
Item 6.1 – Mr P Worsfold (Licence Holder)
Item 6.1 – Mrs D Dunbar (Complainant)
Item 6.1 – Mrs M Short (Complainant)
Item 6.3 – Ms M Miller (Applicant)
Item 7.1 – Mr A Wilson (Applicant)
Item 7.2 – Mr A Macdonald (Applicant)
Mr P Corbett 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. Accordingly he advised the Committee that items 8.1 and 8.2 detailed below, would not be webcast due to the disclosure of personal information relating to the applicants/licence holders.
1. Apologies for Absence
Apologies for absence were intimated on behalf of Mr D Flear, Mr A Henderson, Mr G Rimell, and Mrs G Sinclair.
2. Minute of the Meeting on 2 August 2011
There had been circulated for confirmation the minute of the meeting of the Committee on 2 August 2011. The minute was held as read and APPROVED.
Arising from Item 1 of the Minute, the Senior Licensing Officer reported that Democratic Services at Council Headquarters, Inverness had been advised of the clash between the last meeting of the Committee and the CSER Planning Applications Committee with a view to any further clashes being avoided in the future.
Arising from Item 4.2 of the Minute the Senior Licensing Officer reported that the applicant’s agent had indicated verbally that Mr Tasasiz would not be proceeding with the application for an HMO in respect of premises at 42 Island Bank Road, Inverness following withdrawal of the Highland Housing Trust as day to day managers and that written confirmation of this was awaited.
The Committee NOTED the matters arising from the minutes.
3. Licences Granted Under Delegated Powers
There had been circulated Report No HLC-090-11 by the Area Solicitor detailing the 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 20 July to 23 August 2011.
The Committee NOTED the Report.
4. Houses in Multiple Occupation (HMO) – Draft Interim Supplementary Planning Guidance
There had been circulated Report No HLC-091-11 (640kb pdf) by the Legal Manager inviting the Committee to consider its response to the consultation on Planning Supplementary Guidance in relation to HMOs within Inverness City Centre which was approved by the Planning, Environment and Development Committee on 3 August 2011. The Committee was specifically invited to respond to the three questions on pages 8, 10 and 11 of the document.
Following discussion the Committee AGREED:
(i) to support the development guideline HMO1 to avoid a high concentration of HMOs, for new applications only,
(ii) that Options 4 (offering a restriction on the number of HMOs permitted with Inverness City Centre based upon the number of residential properties within a single census output area) and 5 (securing the need for planning permission for change of use to an HMO) should be the preferred approach, and
(iii) there were no further issues which Members wished considered when assessing a planning application for change of use to an HMO.
5. Civic Government (Scotland) Act 1982
Applications for Houses in Multiple Occupation Licence
5.1 Premises – Helmsdale, Heathercroft, Fort William
There had been circulated Report No HLC-092-11 (24kb pdf) by the Legal Manager relating to an application for the grant of a House in Multiple Occupation Licence from M F Wells Hotels Limited in respect of premises at Helmsdale, Heathercroft, Fort William. The Report recommended that the Committee agree to defer determination of the application, either to (i) allow it to be approved under delegated powers in the event that all responses and outstanding documentation were received and the remedial works identified by TECs were completed, or (ii) to a future meeting of the Committee when the application would be determined in terms of the hearings procedure.
The Committee AGREED the recommendation.
5.2 Premises – Flat 3, 75-85 High Street, Fort William
There had been circulated Report No HLC-093-11 (183kb by the Legal Manager relating to an application for the grant of a House in Multiple Occupation Licence from the Partnership of Afsarul and Aktaral Haque in respect of premises at Flat 3, 75-85 High Street, Fort William. The Report advised that the Committee had deferred consideration of the application at its meeting on 30 November 2010 to enable the applicant to address the issues raised by the Fire Authority and TEC Services and to submit documentation in support of the application. The Report also confirmed that to date confirmation that the works had been completed and supporting documentation lodged was still awaited and therefore the application was before the Committee for determination in accordance with the Hearings Procedure.
The Clerk tabled a letter received on 5 September 2011 from the Applicants advising that: due to work commitments they were unable to attend the hearing, confirming that the premises were currently not being used as an HMO and requesting a further period of three months in which to complete the outstanding works and to submit the relevant documentation.
The Clerk advised that in terms of the Section 3(i) of the Civic Government (Scotland) Act 1982 the application had to be determined within a period of 12 months otherwise the application would be granted unconditionally for a period of 12 months. Accordingly he advised that granting a further period of three months to complete the works was not an option open to them in terms of the Act. As an alternative he suggested that there was an option to grant the licence subject to a condition that the works should be completed within a period of three months, however he advised against this as a course of action due to the amount and nature of the works required to bring the property up to HMO standards.
The Techical Officer (HMO) indicated that his last contact with the Applicants had been in June 2011 and at that stage the Applicants had not commenced the works.
In discussion Members expressed the view that the Applicants had had a sufficient period of time to complete the works and suggested that it would not be appropriate to allow a further period of three months particularly given the level and nature of the works and the health and safety issues involved.
The Committee therefore REFUSED the application on the grounds that the premises were not considered suitable for the proposed activity given the amount and nature of the work required to bring the property up to the required standard.
4.3 Premises – Delny House, Delny, Invergordon
Note: Only the following members: Mr P Corbett, Mr R Greene, Mr R Pedersen, Mr A Rhind and Mr R Durham took part in determining this item as the other members present had not taken part in the Hearing at the Committee meeting on 2 August 2011.
Mr D Millar and Mr W Mackay left the meeting at this point. Mrs M Paterson remained in the Chamber but took no part in the determination of the application.
There had been circulated Report No HLC-094-11 (395kb pdf) by the Legal Manager Manager relating to an application for the grant of a House in Multiple Occupation Licence from Macleods WS Solicitors acting on behalf of the Applicants. The Report advised that following deferral of the application at the meeting of the Committee on 2 August 2011 a letter dated 19 August 2011 had been received from Macleod WS Solicitors acting on behalf of the applicant enclosing a Business Plan Summary, site plan and application for relaxation of HMO standard or licence condition in respect of the Environmental Health Report, copies of which were contained in Appendix 1. The Report invited the Committee to determine the application in accordance with the hearings procedure.
Mrs L Murray, Solicitor for the Applicant, spoke in support of the application, advising that:
- the paper work submitted in support of the application represented a snap shot of what it was hoped the proposal would achieve in the longer term and ultimately it was envisaged that the premises would come under the umbrella of Social Care and Social Work Improvement Scotland (SCISWIS) which had replaced the Care Commission
- the premises would be a licensed HMO facility for up to ten men who were homeless and had a dependancy on alcohol, and who were committed to overcoming their addiction
- there would be no medical care or counselling provided at the premises and the residents would be expected to participate in recovery programmes such as the twelve step programme
- the proposal was supported by local GPs, the Minister of Rosskeen Free Church and the Highland Council’s Housing and Property and Social Work Services. The Applicant was aware that it was critical to maintain this support
- residents’ stay at the premises would be structured and they would be encouraged to participate in in daily activities
- a full time manager would be appointed in the near future and no new residents would be accepted into the premises pending her appointment. It was confirmed that the candidate for the post was a former police woman with ten years police experience living locally.
- Other staff appointments were also pending and each candidate would be vetted personally by Mr Macleod. The ratio of staff to residents would be reviewed in light of experience but it was suggested that initially the premises would be overstaffed
- it was acknowledged that there should have been full engagement with neighbouring residents at an earlier stage. Residents had been invited, at admittedly short notice, to attend a consultation meeting over the previous weekend and it was confirmed that Mr Macleod was willing to meet with any of the neighbours at their convenience. Local residents would also be provided with 24 hour contact details for Mr Macleod and the day to day manager, once in post
- an OS Map had been provided which showed the extent of the building and surrounding grounds
- a staff presence would be maintained at the premises at all times and it would be a condition of tenancy that residents abstain from alcohol. Any breach of that condition would result in that resident being removed from the premises.
- transport for the residents would be provided by Sonas Retreat
- the anti social behaviour on the driveway referred to by the objectors did not involve any residents of the premises
- it was significant that the Police had not raised any objection to the proposal
- as a licensed HMO any breach of licence conditions would be dealt with swiftly and the applicant would be willing to accept initially a one year licence to demonstrate that Sonas Retreat could work in harmony with neighbouring residents
Mr J Campbell, on behalf of the Objectors, addressed a number of questions to the applicants in response to which Mrs L Murray confirmed that:
- it was anticipated that there would be 3 to 4 members of staff for the proposed ten residents and that while no formal qualifications would be required experience would be an essential attribute
- there would be at least one member of staff on duty overnight and that staff would also be on call if required. All health and safety requirements in regard to staffing and the operation of the premises would be met
- It was acknowledged that full consultation with local residents should have been undertaken at an earlier stage and that the consultation meeting held the previous weekend had been organised at short notice. It was confirmed that there had been no intention to deny any resident the opportunity to attend the meeting, invitations having been hand delivered, and that the applicants were willing to meet with residents at their convenience
- the proposal had the support of the Minister of Rosskeen Free Church
- Mr Wilson was employed as a caretaker only and had no supervisory or managerial role. If he required a disclosure check this would be done
- all staff who required disclosure checks would have these carried out
- any resident found with alcohol would be removed from the premises and placed back in the care of the Local Authority. Sonas Retreat would also reserve the right to refuse any referrals if it was felt that they were not suitable
- the HMO licence would cover the premises only and the caravan currently located on site would not be used to accommodate residents
Mr J Campbell then spoke on behalf of all the Objectors present stating that:
- the proposal to use the property at Delny House as an alcohol rehabilitation centre bore no relation to the Business Plan which the Applicant had submitted.
- licensing the premises as an HMO was not the most appropriate form of regulation for the type of use proposed and that the facility should be more appropriately registered with the relevant regulatory body
- approximately half of the neighbouring residents had not been invited to the recent hastily convened community consultation meeting organised by the Applicant.
- the nearest public transport was located on the A9 a considerable walking distance away, noting that there were no streetlights and an unmanned level crossing along the route
- neighbours already felt threatened in their own homes with the two residents currently accommodated at the premises.
- expressing concern at the lack of consulation in regard to the proposed tarring of the shared driveway
- alleging that Mr Macleod had exaggerated his close relationship with Rosskeen Free Church at the previous hearing, and that this combined with Mr Macleod’s reference to the neighbours objections as ‘irrelevant’ and ‘nimbies’ in the national press raised concerns as to whether Mr Macleod was a fit and proper person to run an HMO.
In response to a question from Members the Clerk advised that he was satisfied that the hearing could proceed as while the applicant had been asked by the Committee to meet with neighbouring residents as part of the deferral of the application this was not directly relevant to the Committee’s determination of the application.
Thereafter Mrs L Murray, Solicitor for the Applicant, responded to a number of questions from Members and confirmed that the applicant would be content to accept a condition that there would be no residential occupation of the caravan located within the grounds of the premises, noting that the current occupants were related to the caretaker and were not residents; clarifying that the premises would be operated as an HMO for homeless men with alcohol problems; and contending that there were no grounds for suggesting that Mr Macleod was not a fit and proper person to be involved in the venture.
Following on from the above Mrs L Murray and Mr J Campbell both referred to correspondence the Applicant and Objectors had received from the Minister of Rosskeen Free Church in connection with Sonas Retreat’s proposals, the terms of which were read out to the Committee. Mrs Murray indicated that the project had the support of the local Church and that the letter received by the Objectors confirmed that this was not at an official level. Mr Campbell noted that there was a lack of official support from the local Minister for the project which had been inferred by Mr Macleod in his presentation at the previous hearing.
Following a summing up by all parties the Committee AGREED to retire to consider the representations and objections in private. Thereafter the Chairman invited all parties to return to the meeting and invited the Committee to take a decision.
Mr A Rhind and Mr R Durham referred to their concerns regarding the proposal but indicated that the legal advice received from the Clerk was that there were insufficient grounds on which to refuse the application.
On the motion of Mr R Pedersen seconded by Mr R Greene the Committee AGREED that the application be granted for a restricted period of one year only subject to; (i) standard conditions and the renewal being referred to Committee only if there were any unresolved objections, (ii) the licence to be issued once any outstanding works required by TECS were completed and the application for a relaxation to allow the bedroom on the first floor to be used only in an emergency being granted and (iii) the caravan in the walled garden being removed.
Mr A Rhind and Mr R Durham abstained from this decision.
Note: Mr R Greene left the meeting at this point. Mr D Millar and Mr W Mackay returned to the meeting.
6. Civic Government (Scotland) Act 1982
Application for Skin Piercing or Tattooing Licence
6.1 Premises: Braes Cottage, Gower Street, Brora
There had been circulated Report No HLC-095-11 (23kb pdf) by the Legal Manager relating to an application for a skin piercing and tattooing licence received in respect of the Braes Cottage, Gower Street, Brora. The report recommended that the Committee agree to defer determination of the application, either to (i) allow it to be approved under delegated powers in the event that a building warrant completion certificate was received, or (ii) to a future meeting of the Committee when the application would be determined in terms of the hearings procedure.
The Committee AGREED the recommendation.
6.2 Premises: Unit 73, Eastgate Centre, Inverness
There had been circulated Report No HLC-096-11 (1369kb pdf) by the Legal Manager relating to an application for a skin piercing and tattooing licence received in respect of the Braes Cottage, Gower Street, Brora. The report recommended that the Committee agree to defer determination of the application, either to (i) allow it to be approved under delegated powers in the event that all responses and no objections are received, or (ii) to a future meeting of the Committee when the application would be determined in terms of the hearings procedure.
The Committee AGREED the recommendation.
6.3 Premises: Fairfield Medical Practice, 22A Abban Street, Inverness and Inverness Therapy Clinic, 65 Kenneth Street, Inverness
There had been circulated Report No HLC-097-11 (387kb pdf) by the Legal Manager realting to an application for renewal of a skin piercing and tattooing licence received in respect of Fairfield Medical Practice, 22A Abban Street, Inverness and Inverness Therapy Clinic, 65 Kenneth Street, Inverness. The Report advised that the applicant was seeking dispensation from the standard licence condition 53(2) which stated that; ‘smooth and impervious floor and wall surfaces capable of being easily cleaned’. The Report indicated that the Council’s TEC Services (Environmental Health) had no objection to the relaxation of the condition provided that the treatment room was used for the purposes of acupuncture only and no other forms of skin piercing or tattooing.
The Committee AGREED to grant the application subject to condition 53(2) being disapplied on the basis that the activity would consist of acupuncture only.
7. Civic Government (Scotland) Act 1982 Taxi Driver’s Licence
7.1 Licence Holder – Peter Worsfold
There had been circulated Report No HLC-098-11 (16kb pdf) by the Legal Manager relating to a Taxi Driver’s Licence in the name of Mr Peter Worsfold. The Report advised that Mr Worsfold had appealed the decision of the Committee taken on 8 February 2011 to suspend his licence for a period of 3 months to Inverness Sheriff Court and that the case had called on 8 July 2011 noting that one of the grounds of appeal had been that Mr Worsfold had not received the minimum 21 days statutory notice of the Hearing. The Report indicated that in discussion prior to the case being called both parties had agreed that consideration of the suspension be referred back to the Committee for consideration and that the Sherriff had subsequently advised both parties that if the case had been considered by him he would have taken the same decision. The Report therefore invited the Committee to consider whether or not the licence holder continued to be a fit and proper person to hold a taxi driver’s licence and upon determining this matter whether any action should be taken against the licence holder in the form of a warning or a suspension of licence.
Mrs E Gardner read out the statements which had been received from the complainants Mrs D Dunbar, Mrs M Short and Mr P Carpenter, and which were contained in Appendix 1 to the Report.
Prior to the meeting Mr Worsfold had provided the Clerk with a copy of his submission together with information relating to the medical condition tinnitus, a copy of which had been circulated to the Committee. Thereafter Mr Worsfold addressed the Committee and apologised to the complainants for any upset and inconvenicence caused. He explained that his behaviour at that time had been stress related due to a combination of personal and work related problems. Mr Worsfold also indicated that he also suffered from the hearing condition, tinnitus, which made communication with customers problematic. In mitigation he also advised that his record both before and after the period over which the complaints had been received was good.
In discussion the Chairman expressed concern that at the initial hearing Mr Worsfold had sought to hold the complainants responsible for the incidents which had occured, and queried whether he had medical confirmation of his hearing condition.
Mr Worsfold responded that in hindsight he should have presented his own case rather than relying on a representative to address the Committee. He also advised that tinnitus was not a medical condition that could be detected but was a condition he had to live with day to day.
Mrs E Gardner, Trading Standards Officer, indicated that Mr Worsfold had made no mention of a hearing condition in his three interviews with Trading Standards officials. She also advised that in her experience the receipt of three separate complaints in relation to one licence holder over a short period had not occurred before.
Mrs D Dunbar, Complainant, referred to the importance of Mr Worsfold exhibiting good customer care while in charge of a taxi.
In discussion Members made reference to the fact that Mr Worsfold had presented a very poor case through his representative at the previous hearing which had not reflected well on him or the local taxi association and the fact that the receipt of three complaints over a short space of time was extremely rare. However reference was also made to the fact that Mr Worsfold had apologised to the complainants and had sought to explain the reasons for his behaviour. Members of the Committee also emphasised to Mr Worsfold the importance of good customer care while on duty as a taxi driver.
Following further disucssion the Committee AGREED to (i) to impose a suspension of 3 months but to suspend implementation for a period of 1 year provided no further complaints are received about the Licence holder, and (ii) to require the Licence holder to undertake a customer care course provided by a recognised Training Body and to provide evidence to the Council that this had been undertaken.
The Committee resolved that, under Section 50A(4) of the Local Government (Scotland) Act 1973, the public be excluded from the meeting during discussion of the following Items 8.1 and 8.2 on the grounds that they involved the likely disclosure of exempt information as defined in paragraph 3 of Part 1 of Schedule 7A of the Act.
8.1 Applicant – Andrew F Wilson
There had been circulated to Members only Report No HLC-099-11 by the Legal Manager regarding an application for the grant of a private hire driver’s licence which had been received from Andrew F Wilson. The Report advised that an objection had been received from the Northern Constabulary outwith the statutory 28 day period. The Committee was invited to consider whether the applicant was a fit and proper person to hold a private hire car driver’s licence.
On hearing from the Senior Licensing Officer, and Inspector R Aitken in regard to the reasons for the late objection, the Committee AGREED to hear the late objection from the Northern Constabulary, a copy of which was circulated to the members.
The Committee then heard from Inspector R Aitken in regard to the objection to the application, and from the Applicant in support of his application.
In disucussion Members emphasised the conduct expected of the Applicant as a licensed private hire car driver.
The Committee AGREED to grant the licence subject to standard conditions.
Note:- Mr A Rhind left the meeting at this point.
8.2 Applicant – Andrew Macdonald
There had been circulated to Members only Report No. HLC-100-11 by the Legal Manager relating to a Taxi Operator’s and Taxi Driver’s Licence in the name of Andrew Macdonald. The Report indicated that no objection to the application had been received from the consultees but that the applicant had incurred 6 penalty points on his licence as a result of a road traffic offence.
After hearing from the Applicant, the Committee AGREED to grant the application subject to standard conditions, the Applicant passing the driver’s medical test and the vehicle passing the Council’s vehicle inspection and meter tests.
The meeting ended at 13.05 pm.