In Scotland, houses of multiple occupation (HMOs), (those properties shared by three or more tenants who are not members of the same family or household) are the subject of a bespoke licensing scheme. Generally it is for local authority committees to grant (or refuse) licences to landlords wishing to lease HMOs. Where an HMO licence is refused, or where conditions are attached to it by a local authority committee, a landlord may appeal that decision to the Sheriff Court.

The recent case of Fieldman v City of Edinburgh Council provides useful judicial guidance, for the first time, on the powers of a Sheriff when tasked with determining such an appeal.

Can a court grant a HMO licence?

In Fieldman, City of Edinbugh Council had refused an HMO application by Elizabeth Fieldman, due to concerns relating to the effect of noise from the HMO on neighbouring properties.

Ms Fieldman appealed against the decision on a number of grounds. She invited the Sheriff, if she was successful, not only to quash the refusal of the application for an HMO, but to grant the application itself.

The Sheriff carefully analysed the provisions of the Housing (Scotland) Act 2006 ("2006 Act"), which govern the licensing scheme for HMOs. The Act provides that a Sheriff can dispose of an appeal by:

  • confirming the committee's decision with or without variations,
  • remitting the decision to the committee, or
  • quashing the committee's decision.

The Sheriff drew a distinction between the limited range of powers explicitly granted to the court under the 2006 Act, with the broader range of powers granted to a Sheriff when dealing with appeals under the Civic Government (Scotland) Act 1982, which governs a variety of other types of licences.

In doing so, the Sheriff concluded that he did not have the power to grant an HMO licence. In his view the Act was clear that only the local authority committee had that authority. This, in our view, has to be correct, standing the terms of the legislation.

Notably, the Sheriff observed that it was correct in principle that the decision to grant an HMO licence was taken by the committee, as they had expertise in such licences. He remitted the case back to the committee for reconsideration.

Powers of direction

Fieldman was heard shortly before the public health crisis struck Scotland. When he pronounced his decision, the Sheriff was keen to ensure that (i) the Committee reconsidered its decision within a reasonable time period and (ii) any procedure which followed before the Committee was 'Covid-resilient'.

Accordingly, the Sheriff fixed a date by which the Committee required to reconsider the application and varied the ordinary rules of procedure under the 2006 Act to allow for any future oral hearing on the application to take place by virtual-means.

Analysis

Fieldman demonstrates the deference that local authority committees can expect to be afforded in relation to decisions taken under the 2006 Act, in recognition of their expertise in handling HMOs. Although the Sheriff assigned a timetable and adapted procedure for any future hearing, he was careful to stress that it was for the committee to ultimately decide how to determine the application.

The case may make appeals against refusals of HMO licences less common, with applicants now being clear, if they were ever in doubt, that even a successful appeal will likely result in their application being remitted to the original decision-making committee for reconsideration.

Brodies is able to advise organisations on all areas of the housing law. For more information, contact Fiona McLeod or your usual Brodies contact.

Contributors

Tony Convery

Associate

Fiona McLeod

Legal Director