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Saturday, 16 August 2008



The Community Councils represent areas which contain predominantly tenement property and are concerned that the Licensing Authority are not using the full power given to them in the Housing (Scotland) Act 2006 (2006 Act)to protect the amenity and sustainability of the communities in which they live. The Licensing Committee narrowly construe their remit and predominantly consider the safety and security of tenants. They have a much wider responsibility to the community as a whole and as a licensing authority have the power to exercise that responsibility.
The communities concerned are fully aware of the need for safe regulated affordable rented accommodation and, in particular, are aware of the concerns of the student population who require to rent shared accommodation. The communities welcome the diversity and vibrancy that such accommodation brings to their areas. However the need for rented accommodation should not affect the sustainability of any particular community and should not be focussed on a few areas of Edinburgh. It should be distributed throughout the city and a balance struck. Tenement living in particular is community living and where there is a predominance of HMO accommodation in one block or area this leads to overpopulation, tension among residents and a deterioration of the diversity in type of population which is needed to maintain a vibrant and lively popular and sustainable community. The predominance of HMOs in a tenement or area results in , wear and tear on the property, increased noise and disruption where people with differing lifestyles live together and the drift of a individuals and families to other areas. The housing stock requires the input of owner/occupiers to ensure that it is maintained. Individual owners put considerable effort into ensuring the tenement property in which they live is properly maintained and become isolated and disheartened if the effort is entirely theirs and they do not get support for their efforts from landlords or tenants. Properties which have a majority of HMO can be easily distinguished by the lack of care and maintenance. We therefore ask the licensing committee to review their policy and have due regard to the following when considering a licensing application.
1 Suitability of Accomodation
(a) Section131(2) of the 2006 Act empowers the authority to determine whether accommodation is suitable in relation inter alia to location and type and number of persons. Similar provision in The Civic Government (Scotland) Act 1982 Schedule 1 Paragraph 5(3) lists the reasons a licence may be refused “5(3)(c) - the premises are not ... suitable or convenient for the conduct of the activity having regard to ... (i) the location ... (ii) the nature and extent of the proposed use, (iii) kind of persons likely to be in the premises, (iv) the possibility of undue public nuisance. This provision has always been used to consider the effect on the amenity of neighbouring properties and to allow refusal if the amenity is affected. This interpretation has been supported by case law viz Leisure Inns (UK) Ltd v Perth & Kinross District Licensing Board 1991 SC 224. The Opinion in that case stated that the question of amenity can properly arise under s 17 (1) (b) where reference is made to "having regard to their location" and when considering "location" loss of amenity to surrounding properties would be a relevant consideration". Too many HMOs could lead to considerable loss of amenity in the neighbouring properties or other flats in the tenement.
These powers are at present ignored when deciding on the suitability of granting an HMO licence. The licensing authority should use the powers given to them in the legislation to look at the suitability of the property in relation to the area in which it is situated and not confine their remit to ensure it is safe secure living accommodation. Looking at the numbers of HMOs in any one tenement or area will result in a more sustainable community.
(b) In particular the Licensing Committee should have due regard to planning guidance which defines an area as sensitive when the number of HMOs exceeds 30% of the total number of households. Similar guidance requires to be adopted for tenement properties where an HMO licence is required. As explained above the effect of this density of population has a much greater impact in a tenement. The Licensing Committee should not undermine the stated policy of the Planning authority by ignoring these guidelines when they have the power to adopt and apply similar guidance. The Communities expect “joined up Government” from their representatives. They do not expect a different policy to be applied by the Planning authority and a contradictory policy by the licensing authority. The Licensing Committee should consider evidence of the density of HMO’s in the tenement block and in the immediate area when considering the suitability in relation to location and type and number of persons for which the license is to be granted. Where the density in a stair or in a block exceeds 30% then the Committee should invoke the powers given them to refuse a licence.
(c) When considering the number of people for whom a licence is to be granted the Licensing Committee should make it a condition that any occupation of a box room as either living space or a bedroom will be treated as a breach and enforcement action will be taken. A number of 2 bedroom properties are adapted to enable the accommodation of three people and this should be considered when the suitability of the property is assessed as a whole. Changing traditional layout to ensure more rooms and more tenants should also be taken into account when assessing suitability. The properties are often listed buildings which are being altered solely to ensure greater density of population. This does not protect the housing stock or the sustainability of the property in the area.
2 Granting of a new licence where one is already in existence
The 2006 Act makes specific provision for the existing licence lapsing when the property changes hands. The Licensing Committee should make it clear that where there is an application for a new licence the location and type and number of persons will be looked at afresh in accordance with the above policy. This should prevent existing licensed premises becoming a marketable commodity which might add to their value and add to the problem.
3 Enforcement
At Community Council meetings it has become apparent that one of the major concerns is lack of enforcement and meaningful prosecution where conditions are breached. For this reason the following policy should be adopted:
(a) Where there is any breach of conditions of licence and in particular where there is no licence and a licence is required the Committee should prosecute and demand the maximum fine. There is some concern that if the grant of licences is limited in some way that landlords will not make application. It should be sufficient deterrent to any law abiding landlord that there is a real risk of prosecution. With the publication of the Register required under the 2006 Act members of the public should be encouraged by way of a publicity campaign to help police the situation and report suspected breaches of licence conditions or lack of licence. .
(b) The 2006 Act allow some flexibility in the information to be contained in the HMO Register. This should be used to ensure that relevant information is included. The content of the Register should disclose the number of HMOs in a particular tenement with the number of occupants so that this can be used either to identify properties breaching the conditions of licence or as information to be used by the Licensing committee when ascertaining the suitability, density and location for licensing purposes. Residents will also be able to check on the information to decide whether an objection should be made to granting the licence give. The Register should be organised so that it is easy to extract information in relation to a particular street or tenement.
4 Consultation
We are of the view that if the Licensing Committee used their powers as outlined above it would make a considerable contribution to supporting sustainability in our community. However we are aware that no consultation process was carried out prior to the present policy being adopted. Therefore we also suggest that the Licensing Committee consult on their present policy and allow the views of the community to be heard. There are residents who have extreme difficulties where there are too many HMOs in the stair. They should be given the opportunity to put their experiences to the licensing committee so that the committee has a better understanding of the problems in the community. This submission does not deal with anti social behaviour which can also be a problem in some instances but even where there is no anti social behaviour difficulties occur if there are too many HMOs in a stair or area. These range from difficulty in maintaining the property to too much noise because of the number of people using the stairs to access HMO properties at unsocial hours. There is also a problem where the rooms in HMO accommodation have been altered from their original use. This leads to living accommodation being situated above bedrooms and disturbance with neighbours either above or below trying to sleep while others are playing music cooking etc. Once the balance tips one the community loses diversity. We are of the view that a consultation process would enable the committee to get a realistic grasp of the problems involved.
Anne Laird
Marchmont and Sciennes Community Council
11 August 2008

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