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A REVIEW OF THE FIRST YEAR OF THE MANDATORY LICENSING OF HOUSES IN MULTIPLE OCCUPATION IN SCOTLAND

CHAPTER NINE THE BENCHMARK STANDARDS

9.1 This Chapter looks at the requirement for HMOs to meet benchmark standards in order to obtain a licence. The diverse views of local authorities, private sector HMO owners and key player organisations are presented and key issues and concerns about the standards for fire safety are identified. The views of HMO tenants living in licensed HMOs about the standard of their accommodation are described. The relationship between planning consent and licence approval is reviewed and related to the objectives of the licensing scheme as it was originally established.

THE BENCHMARK STANDARDS

9.2 The Executive Guidance (Scottish Executive, 2000b) sets out the national HMO benchmark standards recommended to local authorities for adoption in their own local schemes. The standards cover a wide range of property-related matters. They provide minimum standards for room sizes, kitchen and cooking facilities, space heating, lighting, ventilation, fire safety, electrical safety, handrails and clothes drying. The benchmark standards include existing good practice drawn from previous discretionary HMO licensing schemes but also, as the Guidance points out:

" Some of these benchmark standards have been extracted from the Technical Standards that apply to newly built HMOs" (Scottish Executive, 2000b: 21)

9.3 This means that where an existing HMO does not require a building warrant as part of the process of meeting the benchmark standards, it will still be subject to some parts of the Building Standards Regulations. These include Parts D and E relating to fire safety and Part F relating to appliances (i.e. gas heaters, flues, air circulation, etc). Where an existing HMO requires a building warrant to carry out upgrading works or has to obtain a change of use, it is likely that the full technical standards for a new build property will have to be met. This context is important for understanding the subsequent issues in the Chapter.

9.4 In accordance with the rules that apply to licensing schemes under the Civic (Government) Scotland Act 1982, the benchmark standards are only advisory. They cannot be made mandatory on local authorities. Local authorities are free to adopt or vary the national standards to meet local property conditions. Even if local authorities adopt the national standards, or their own standards, they may still agree relaxations to resolve a problem of an HMO that is unable to meet a particular standard. However, the ethos of the Executive's approach in the promotion of the benchmark standards is to encourage local authorities to apply comparable conditions to achieve comparable minimum standards in HMOs of similar type and size across Scotland.

Adoption of the national benchmark standards

9.5 To gauge whether authorities had followed the Executive's wish for as much national consistency in standards as possible, authorities were asked to what extent they had adopted or varied the benchmark standards in the Guidance. From the postal survey data, 15 local authorities (48%) reported they had adopted the benchmark standards with only minor variations when they approved their own scheme (Table 9.1) and a further 10, (32%) adopted the standards as they were stated in the Executive's Guidance. Therefore, overall, 80% of authorities had adopted the same, or very similar local benchmark standards as the national standards, for comparable types and sizes of HMOs in Scotland.

Table 9.1 Adoption of the national benchmark standards in local licensing schemes

Source: local authority postal survey
* 1 missing case ** rounding up

9.6 However, the benefits of this consistency of approach are tempered by the fact that six authorities (19%) - including Glasgow, Edinburgh and Dundee city councils where the great majority of HMOs in Scotland are to be found - indicated that they had significantly varied the national benchmark standards for their local schemes. Although there was reference in one or two authorities to variations in the ratios for cookers and sinks, fire safety standards were the main focus of modification. As will be discussed below, in respect of certain safety features for small HMOs, fire brigades recommended higher fire safety standards than those in the Guidance. However, it should be noted that in Glasgow's view, its fire safety standards were now lower than the benchmark standards as:

" there was no requirement to provide an 'alternative exit' on storeys over the height limits recommended in the benchmark guidance document" (Glasgow City Council, postal survey )

Technical Standards in the benchmark standards

9.7 As noted above, where a building warrant (e.g. for upgrading or conversion works or change of use) is required, it is expected that the full Technical Standards will have to be met. The Executive Guidance acknowledges that " it may be impossible to apply all those standards to older properties that are already HMOs" (Scottish Executive, 2000b: 21) and that local authorities should take the overall benchmark standards as " reference points" for ensuring acceptable conditions in HMOs. Most HMOs covered by the mandatory licensing scheme are older properties. Three quarters of local authorities found the application of Technical Standards to be 'very or quite helpful' and had no criticisms to make (Table 9.2). However, over half of the authorities that had indicated 'quite helpful' had not approved any applications in the first year of the scheme. Only five authorities (16%) felt that the incorporation of Technical Standards was 'not very helpful'.

Table 9.2 Local authorities' view of the incorporation of Technical Standards into licence assessment

Source: local authority postal survey

9.8 While most authorities thought that the Technical Standards had value, problems were identified. Several authorities were explicit in their view that operating with new build standards was inappropriate because they had no, or very few, new build HMOs. Comments from some of the case study authorities expand on their concerns. Stirling Council said that where new-build standards were expected, they were:

" difficult to always apply to old buildings e.g. for a secondary means of escape with storey height over 11m - in tenements it's a problem" (Stirling Council, lead officer)

9.9 Similarly, Dundee City Council argued:

" It has been difficult to implement current Technical Standards on 100 year old properties and difficult to reconcile current Technical Standards with current health and safety standards i.e. windows" (Dundee City Council, postal survey)

9.10 The City of Edinburgh Council echoed the constraints placed on what was possible in tenements:

" Technical Standards are considered not very helpful as the bulk of HMOs are in tenements and - the Fire Master has even asked for smoke detectors in walk-in cupboards and secondary fire escapes in tenements" (City of Edinburgh Council, lead officer)

Different perspectives on the benchmark standards and fire safety standards

9.11 Although HMO inspections dealt with the overall standards of accommodation to be met, the fire safety requirements had the most influence on the views of private sector HMO owners about the benchmark standards. An important point to note is that the introduction of mandatory licensing did not mean all owners faced demanding fire safety standards and high costs. Of the sample of 10 private owners, four had previously upgraded their HMO (because of a discretionary licensing scheme or as part of the standards they set themselves) and as a result, had relatively minor fire safety improvements to make for mandatory licensing (though some had other costs to meet).

9.12 Most of the 10 owners distinguished between the general principle that fire safety precautions were necessary and made good business sense from the particular standards they were required to meet. Most owners acknowledged the importance of good fire safety standards but there was a split between those who were quite comfortable with the particular standards demanded, even when this cost them several thousand pounds and those who were critical of what they were required to do. Annex 2 illustrates this diversity. It provides a summary from different local authority areas of four owners' views about the fire safety standards they were required to meet when compared with the range of works involved and the approximate costs incurred.

9.13 Criticisms by the owners were either about the costs - no owner had been aware of, or enquired about the possibility of grant aid - about what they deemed a particularly trivial requirement or about particular standards they thought to be inappropriate or excessive. A Highland Council area owner identified as trivial, instructions to change a sign from 'keep fire door shut' to 'keep fire door locked' and to fill in gaps in joints in a cupboard that housed the main electricity board, as did a Glasgow owner who was told to install a smoke detector in a cupboard. Examples of what owners considered excessive or unreasonable were smoke detectors in bedsit rooms because they " keep going off with toasters and the tenants now just ignore them" (Glasgow owner); intumescent strips in a hall door that had no gap round the door (Dumfries & Galloway owner) and replacing original panelled doors with fire resistance doors when smoke detectors in the bedrooms were " adequate" for a 5 person shared flat (Edinburgh owner).

9.14 All 13 HMO tenants lived in licensed HMOs. As the primary purpose of mandatory licensing is to provide tenants with safe, good quality accommodation, their views of the standard of their accommodation provided an important consumer perspective. References to 'benchmark standards' and 'fire safety standards' were not appropriate terms for the tenant interviews. They were asked their views about the standard of their licensed HMO by rating specific features of their accommodation as good, average or poor (Table 9.3). Overall, the tenants had a positive view of their accommodation. The standard of repair of the HMO, its cleanliness and the adequacy of the cooking facilities (in bedsits and shared kitchens) were all rated good or at least, average. While the standard of the heating was generally considered satisfactory, two Glasgow HMO tenants provided with only single bar electric heaters by their landlord's, understandably rated the heating appliances poor.

Table 9.3 HMO tenant' views of the standard of their licensed HMO accommodation

Source: HMO tenant interviews

9.15 There was almost universal awareness by tenants' of fire safety measures. When asked if they were aware of any equipment installed to detect a fire starting (e.g. smoke detectors and smoke alarms) and to fight a fire (e.g. fire blankets and extinguishers), all but one or two of the tenants were able to identify examples of both types of equipment within the accommodation. Smoke alarms were most commonly referred. They were least aware of fire blankets.

9.16 The housing associations were very critical of the fire safety standards being applied to their very sheltered housing schemes. Servite Housing Association said it was faced with a council insisting on two schemes being brought up to the current HMO standards even though they were only 10 years old. The council was not happy with the type of alarm system and would only accept it if the original installer certified that it was 'equivalent to' the current required system. Servite could not see the logic of this, as the fire safety and fire alarm systems in the very sheltered housing schemes were the same as those in its ordinary sheltered schemes that were not licensed. Hanover Housing Association had a very sheltered housing scheme where the residents' rooms were not controlled by door closers. However, the licensing requirements included bedroom door closers, intumescent seals and cold smoke seals. These were seen to create an institutional ethos considered incompatible with the homely ethos fostered in the homes. In the association's view, the requirements actually diminished the quality of life of the residents. The association was also asked to prove that all existing doors were half hour fire resistant.

9.17 One of the associations was also concerned about the interpretation of the scope of the benchmark standards inspections. The inspecting officer provided the association with a large list of issues and comments that the association felt exceeded the remit for HMO licensing. In the association's view, it dealt with matters not connected with HMO licensing, such as the first aid policy, health & safety at work policy, resident medication and whether staff working computers should have eye tests.

9.18 The universities also had some problems with the interpretation of the benchmark standards. For Edinburgh University, fire alarm systems were the main licensing issue and cost. Older properties may only have a smoke detection system but even accommodation only 6 years old did not have an alarm system that conformed to the requirements for a licence. Dundee University accepted that the overall benchmark standards were reasonable especially the fire safety standards but some residences that had full fire certificates still did not meet the HMO requirements. It was also concerned by the council's focus on the external maintenance problems of its older properties which had suffered years of under funding. HMO licensing had highlighted the need to give maintenance more priority. It feared it would not be possible to do the catch up maintenance work within the period of the licence and as a result, " more accommodation may close". Glasgow University was less exercised by potential fire safety issues than by the city council expressing concern that students in the student houses did not get 24 hour heating as it was controlled all year round by the university setting the times central heating went on and off. It believed it would be unreasonable for the licensing requirements to insist on students being able to have control of the heating in their rooms. In the traditional big halls of residence it said it would be impossible to contemplate the works involved and the costs.

9.19 Key player organisations' views on the benchmark standards placed most emphasis on the issue of whether the correct fire safety standards had been recommended by the Executive. There was little consensus across the organisations. Organisations had their own particular 'agenda'. Abbeyfield Scotland, with experience from across Scotland said that different fire safety standards were being demanded for the same types of properties by different authorities. COSLA's submission to the Social Justice Committee admits this is the case because of the use of benchmark rather than " absolute standards" (COSLA, 2002: para13.1) to allow local authorities to take account of local circumstances. While it accepts this could be a problem for some organisations that operated across different authorities, it was not sure what could be done about it. REHIS said it had no information that any of the standards were too onerous or to slack - so far, but when the scheme went to the smaller size of HMOs it thought that some standards may be too onerous. At present, REHIS considered the standards were generally appropriate but did need amendment in terms of their practical application to HMOs by emphasizing the importance of applying relaxations, for example, in relation to standards for facilities such as number of cookers to be provided. SAL thought the standards in general were worthwhile -the problem was how some local authorities were applying them. ARLA was concerned about the approach of fire brigades. They were applying the rules " absolutely correctly for HMOs that were hostels" but the standards were far too high for the types of properties - small shared properties let on joint and several tenancies - that ARLA members let. The Private Rented Housing Forum (2002) put a similar argument forward.

THE FIRE SAFETY STANDARDS DEBATE

9.20 While most authorities indicated they had a good working relationship with fire brigade officers, this understates the tensions between local authorities and their fire brigades about the most appropriate fire safety standards to apply. Some authorities indicated that good relationships existed at front line fire officer level but there were tensions at senior levels where policy was made and handed down. The root of the tensions involved conflicts in professional jurisdiction and fear of making a 'wrong' decision. From the local authority case study interviews, it was clear that there had been a distinct reluctance by councillors and, at times, officers, to agree fire safety standards for their schemes that were lower than recommended by the Fire Master, even when the recommendations exceeded those in the Executive's Guidance. Even where officers proposed acceptance of the Guidance standards, councillors seemed unwilling to accept their own officers' recommendations. One officer used the phrase " belt and braces" to describe the attitude behind this approach. Stirling's lead officer was forthright in her view about the underlying reasons for the situation:

"There is a real problem about the overlap of jurisdiction between the local authority building control function and the responsibilities of the fire brigade. It is clear that fire officers generally take a conservative position of the standards needed and this is very difficult to argue against" (Stirling Council, lead officer)

9.21 In both Edinburgh and Glasgow, councillors backed the fire brigade's standards. As the lead officer in Edinburgh commented: " When the Fire Master has said what he wants (e.g. smoke detectors in each room) councillors have agreed", and similarly in Glasgow:

"There were differences between building control and fire authority over safety standards. Building control was using the Guidance. The Council accepts the Fire Master's recommendations but should take into account building control recommendations" (Glasgow City Council, lead officer)

9.22 Fire officers were seen to carry more weight and they were over-ruled only at considerable risk to the professional reputation of other officers. There was a general fear of 'being wrong' if a disaster struck. As the Stirling lead officer put it:

"…. if it came to a prosecution, the Sheriff would give greater credence to a fire prevention officer in the stand than an Environmental Health Officer" (Stirling Council, lead officer)

9.23 These sharp differences in opinion between local authority officers and fire brigades delayed the development of licensing in its first year in a number of authorities and inevitably had a negative effect on licence approval rates. The differences had to be resolved before owners could be informed what they had to do. In Stirling, the lead officer said that standards were not agreed until mid way through 2001 because of the disagreements between building control officers and fire officers. At the time of the research, this issue had not yet been resolved in all authorities. South Ayrshire lead officer commented on the council's continuing difficulties in March 2002:

" In the early days, the reports from different officers sometimes could have 'differences' i.e. were not in agreement about standards. This is being looked at but not quite resolved yet. Building control is stepping back a bit in relation to the fire brigade" (South Ayrshire Council, lead officer)

THE TECHNICAL BASIS OF THE DISPUTE OVER FIRE SAFETY STANDARDS

9.24 There were several problems with the Guidance as far as the fire brigades were concerned. A key problem lies in the fact that for HMOs with less than 6 occupants, the Guidance recommends a less demanding standard for fire detection and fire warning compared to that for HMOs with more than 6 occupants. This reflects the understanding that risk is proportionate to occupancy numbers, other things been equal (such as type of occupants). At section 6.1, it is stated that:

" An HMO with up to six residents should be provided with either a suitable fire detection and alarm system complying with BS 5839: part 1: 1966: Type L3, or a system set out in Annex D" (Scottish Executive,2 2000b: 31)

9.25 However, fire authorities and their fire brigades were not prepared to accept this standard. As Edinburgh explained, Annex D: " had no requirement for fire detection within rooms" although it was acceptable to building control officers. The outcome described by Stirling's lead officer is typical of what has happened in other authorities: " Smoke detectors are required in every bedroom and a heat detector in kitchen - all to be interlinked".

9.26 According to the Chief and Assistant Chief Fire Officers Association (CACFOA), fire brigades across Scotland had been seeking to apply the same standards to produce " the same outcome for emergency lighting, automatic fire detection and sprinklers" while allowing for minor variations at individual property level depending on particular circumstances. It was emphasised that fire brigades drew on existing sources particularly the Building Regulations and British Standards for their position on specific standards:

" Very, very seldom would they write guidance themselves that differed from existing statutory guidance but fire brigades would identify the fire safety standards where the Technical Standards in the Building Regulations did not cover a particular fire safety requirement" (CACFOA representative)

9.27 The technical explanation given by the CACFOA representative for the stance adopted by fire brigades is set out in Annex 3. CACFOA agreed that the standards used by fire brigades for HMOs of under six persons have been higher than the standards in the Guidance at Annex D. The standards adopted by fire brigades came in, in 1995 and were used for assessing Housing (Scotland) Act 1987 section 162 notices for means of escape from fire. In CACFOA's view, there were no logical grounds for fire brigades moving to the adoption of a lower standard because the Guidance said so.

OTHER CONCERNS ABOUT THE BENCHMARK STANDARDS

9.28 Local authorities expressed concerns about other technical specifications in the benchmark standards:

1. Emergency escape windows

2. South Ayrshire Council noted that at section 6.5 of the Guidance, the requirement for the bottom of the operable area of emergency escape windows to be not more than 1100mm above the floor was a requirement for new domestic dwellings and up until the benchmark standards, had not been an HMO requirement. Now that it was, it could not always be complied with.

3. Lobby enclosure

4. Glasgow City Council pointed out that in section 6.2 para. b (dealing with a lobby enclosure for an HMO flat or maisonette in a building with only a single means of escape via a common stair), the block layout was unnecessary as new buildings with flats or maisonettes would need to comply with the relevant Technical Standards. While for an HMO in an existing block, the council thought it was unreasonable and unnecessary to provide a lobby between it and the stair as it was the occupants of the HMO that were at risk from fire within the HMO. A similar point was made about para. c (dealing with doors and walls between the HMO flat or maisonette and any other part of the building).

5. Common stair lighting

6. Glasgow City Council felt that para. f (dealing with artificial lighting requirements in the escape route) was unreasonable in a common stair of mixed ownership over which the HMO owner could not exercise control.

7. Storey height for secondary means of escape

Several authorities identified a concern with the change introduced into the Guidance via the Technical Standards, from a minimum storey height of 11m to 7.5m for secondary means of escape requirements. Authorities pointed out that in the past, Scottish local authorities worked to an 11m height for secondary means of escape while English authorities operated with 7.5m and 11m. The Scottish standard is now in line with England due to the 6 ^th amendment to the Technical Standards. Scotland now goes from 4.5m to 7.5m to 18m. Some concern was voiced that this will now inappropriately 'catch' HMOs in three storey buildings that had previously been exempt from requiring a secondary means of escape.

LICENCE APPROVAL AND PLANNING PERMISSION

9.29 Before describing the findings from the research about the role that planning issues has played in mandatory licensing, it is useful to appreciate the complex legislative framework of planning in relation to multiple occupancy and the difficult operational relationship that exists between planning powers and licensing powers.

The different objectives of licensing and planning

9.30 Mandatory licensing objectives, as set out in Chapter 4, are to improve internal property standards and fire safety, to prevent 'bad' landlords from operating sub standard HMOs and to enact the scheme without forcing owners out of business, resulting in a reduction in the supply of HMOs. From this perspective, the purpose of HMO licensing is not to regulate any environmental impact caused by concentrations of HMOs in particular localities. That is the proper responsibility of planning legislation and local development control policies. However, as part of a local authority's assessment of an HMO licence application, the Executive's Guidance does support consideration of the impact of an individual HMO on the amenity of an area but not the establishment of specific quotas of HMOs in particular localities.

9.31 In key authorities such as Glasgow and Edinburgh, there have been planning policies in place for some years, to control the numbers of HMOs in particular areas. Glasgow City Council has had a long established planning policy that requires owners of HMOs with three or more occupants to apply for planning consent and the policy is that this would not be granted in tenement flats. This policy applies throughout the city other than the West End area where three person HMOs are exempt because of the impact that refusal of permission would have on the supply of student accommodation. However, the effectiveness of such planning policies can be questioned because of the failures of enforcement - evidenced by the growth in numbers of HMOs without planning permission particularly near universities. The lead HMO officer acknowledged the possibility that a four person tenement flat, not in the West End would be refused planning consent because of the presumption in development control against approval, yet the property could be awarded a licence as it fulfilled all the conditions - of which planning consent was not one.

9.32 In light of the increasing concentration of HMO flats in certain residential parts of the city, the City of Edinburgh Council recently updated its planning policy guidance on the assessment of HMO planning applications and its control of their development (City of Edinburgh Council, 2001). While keen to take action to limit the numbers of HMOs in such areas, its approach differed from Glasgow in respect of how it applied planning controls. Where more than five persons, not living as one family share accommodation, in a flat or house, planning consent will be required. For flats with three or four persons, planning consent will not be required though:

" there may exceptionally be situations where planning permission may be required e.g. where the character of the existing property will be materially altered through the intensity of use in relation to its size" (City of Edinburgh Council, 2001: 2)

9.33 The council rejected control by quota-setting on the grounds that it ran counter to the duty to assess each application on its merits but the adverse impact of a change of use to multiple occupancy in an area of designated " sensitivity" could be a material consideration. Creating the policy framework was one thing, delivering it was seen to be a matter of resources. A need for three staff to deal with applications and enforcement was seen as essential.

9.34 As the national HMO licensing framework will encompass three and four person HMOs, it is clear that it diverges from the planning policy in Edinburgh with its requirement for planning consent to be obtained at a level of more than five persons in flats as well as houses. However, this will not clash with the Executive's Guidance that planning consent should be obtained before approval of a licence application as that is only necessary if consent is required. In Edinburgh for flats with three, four and five persons, consent will not be required except, possibly, where the "exceptional" circumstances apply which would be in the sensitive areas. However, for established HMOs, a certificate of lawful use would give exemption from planning consent if the owner can prove the property has been in continuous use as multiple occupancy for the preceding 10 years

Community concerns

9.35 With the introduction of mandatory licensing, a number of community councils and community groups have seen HMO licensing as a means of 'controlling' HMOs in a way that planning powers have failed to do. Groups such as ' Magpie', an amenity action group in a good quality, residential, tenemental area of Edinburgh close to the main Edinburgh University campus, have hoped that the problems created by lots of young people in shared flats in stairs that not long ago were mainly single-family occupancies, could be resolved by the city's licensing scheme. The hope had been that if planning permission was a prerequisite for approval of a licence, it would lead to reductions in the concentration in areas with a high density of HMOs. However, given the city council's planning policy guidelines for the control of HMOs (see above) and the historical lack of enforcement action, this may prove unlikely.

9.36 There is also a view held by community groups and councillors that licensing should be able to address problems of anti-social behaviour by HMO tenants. This is not something that a licensing regime can respond to at the point of incidents but there is the possibility that unacceptable behaviour by tenants could lead to suspension of a licence, refusal of a licence or refusal to renew a licence on the grounds of the owner's failure to properly manage the HMO by allowing a public nuisance to be caused or a threat to public safety or public order to arise (Scottish Executive, 2000b: 42). Factors that could lead to such an outcome could be neighbour complaints, reports from the police and reports by departments of the authority (e.g. housing and environmental health).

Exemptions from planning consent for change of use

9.37 Depending on the specific circumstances, the change of use of a family dwelling to one occupied on a shared based by a number of separate households, may or may not require planning consent. In 1989, the Scottish Office, extended to certain types of shared living arrangements, exemption from a need to obtain planning consent for a change of use. A new build HMO will require planning permission, as will, subject to certain exceptions, a material change in the use of any buildings (Scottish Office, 1998). Changes of use between the uses listed below, among others, are specifically excluded from planning control:

(a) Use as a house, other than a flat, whether or not as a sole or main residence by:

(b) Use as a bed and breakfast establishment or guesthouse, not in either case being carried out in a flat, where at any one time not more than two bedrooms are, or in the case of premises having less than four bedrooms one bedroom is, used for that purpose.

9.38 Whether a change of use that is not included in the uses described above requires planning permission, will be a matter of fact and degree in each case. Most properties considered HMOs under housing and licensing legislation are not thought to have planning consent yet may require it if they are flats or houses occupied by more than five persons who do not form a single household. However, for such properties, exemption from requiring planning permission can still be obtained if a certificate of lawful use can be obtained.

9.39 The conclusion of the above discussion is that there is not a straightforward relationship between HMO planning powers and policies with HMO licensing schemes. It is a complex relationship, variable across different authorities, employing different definitions, different thresholds for intervention and consequently different decision-making outcomes. The Guidance does not go into the details surrounding planning conditions and policies because of their local diversity but simply makes the point that:

" where an application for planning permission is required, a licence should not be granted unless it has been established that the HMO has received planning permission" (Scottish Executive,2000b: 20)

9.40 This expectation was examined through the local authority postal survey. The study found that authorities had adopted contrary positions and that overall there was a fair degree of confusion about what to do with the planning aspect of licence assessment. Sixteen (50%) authorities made planning consent a prior condition to licence approval (Table 9.4) though, as a number of authorities had approved no applications in the first year of the scheme, it is difficult to know if that policy had been the reason, or whether the licensing process had not actually tested the planning policy at that stage. Two authorities, (South Lanarkshire and Perth & Kinross) adopted a more radical position, indicating that licence applications were not accepted until planning consent had been obtained. On the other hand, 12 authorities (38%) did not make consent a prior condition to licence approval.

Table 9.4 Local authorities' views on the relationship between planning permission and HMO licence approval

Source: local authority postal survey

9.41 Some understanding of why the planning position was in such a confused state came from the case study authorities. South Ayrshire argued that the two issues were covered by completely separate legislation. It did not make planning consent a precondition. On the other hand, Stirling said planning approval was needed and if it were not obtained, the council would go to court and let the outcome rest with a sheriff. In Edinburgh, the position was unclear and the lead HMO officers did not feel it appropriate to discuss the planning dimension of licensing. Glasgow had taken senior counsel's opinion and the view was that planning and licensing were separate issues and could not be made interdependent in the way the Guidance implied. However, pressure for linking the assessment of HMO licence applications to planning consent emanated primarily from councillors. Planning consent was not a precondition for approval of a licence application but despite council's opinion, officers indicated that members still wished to ask the question as to whether an applicant for an HMO licence had made an application for planning approval - not 'had he got planning approval?' - as the lead HMO officer put it: " This must be confusing to owners". Overall, authorities (including some who made prior planning consent a precondition) thought that the Guidance could be more helpful and that the Executive needed to review its position on planning consent prior to licence approval where planning consent was required.

SUMMARY OF KEY FINDINGS

9.42 In the first year of the scheme:

• Over three quarters of authorities had adopted the Scottish Executive's recommended benchmark standards without alteration or with only minor alteration
• However, the 6 authorities that had made significant alterations to the benchmark standards included the city councils of Dundee, Edinburgh and Glasgow where the great majority of HMOs in Scotland are located
• Three quarters of local authorities found the incorporation of parts of the technical Standards into the benchmark standards to be quite helpful
• The main criticism made by local authorities of parts of the Technical Standards was the inclusion of some Technical Standards for new buildings in setting the standards for old buildings, particularly tenement flats. Difficulty with the application of the fire safety standards were the main concern, particularly secondary escape routes
• The owners of private sector HMOs generally agreed with the need for adequate fire safety precautions in HMOs but had mixed views about the appropriateness of the fire safety standards their local authorities had adopted
• While some private HMO owners felt the fire safety standards reasonable and understandable, others thought some standards applied were too onerous or trivial and unnecessary
• The tenants in private sector HMOs generally had a favourable opinion of the standard of their accommodation and a good awareness of the fire safety equipment within the HMO. Their HMO's state of repair, cleanliness and the facilities for cooking were all rated good or average. Occasional examples of dissatisfaction arose with the quality of heating appliances supplied by the landlord
• The housing associations were not favourably disposed to their local authority's standards for fire safety, believing them to be over-onerous. The universities were less exercised by fire safety issues but other aspects of the benchmark standards such as heating systems and building maintenance exercised their concerns
• Delays occurred in promoting schemes and processing applications in some authorities because of differences of opinion between local authority officers and fire officers as to the most appropriate fire safety standards to apply
• Fire brigades wanted a higher standard of fire detection and fire alarm system for HMOs with 5 or less occupants than was recommended in the Scottish Executive Guidance
• Where there was a dispute on the appropriate fire safety standards, local authorities took a conservative view of fire risks in smaller HMOs and adopted the higher standards recommended by fire brigades
• The relationship between planning consent for change of use to multiple occupancy and approval of an HMO licence was confused with local authorities adopting contradictory positions on whether planning consent was a precondition of award of an HMO licence

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