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Guidance on Closure of Premises

Antisocial Behaviour etc. (Scotland) Act 2004

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CONTENTS

Introduction
The intention of the new powers
Contact
Definition of terms
Relevant Harm
The meaning of consultation for the purposes of the Act
The context for consultation
The definition of premises
The definition of an interested party
The closure notice explained
The purpose of the closure notice
Requirements for the serving of the notice
The effect of the notice
The decision to issue a closure notice
How a decision to issue a notice should be authorised
Other potential powers
Serving and enforcing a closure notice
The contents of the notice
Whom the notice should be served on
The service of the notice
Dealing with those in the premises
The welfare of those to be removed from a premises
The Sheriff Court
The Application
The Hearing
Dealing with the arguments presented against closure
Dealing with arguments for adjournment
The closure order explained
The effect of the closure order
Enforcing a closure order
Dealing with those still occupying the premises
Management of a closure order
Issues during the closure
Special considerations for non-residential premises
Access while a closure order is in force
Extension, Appeals and Discharge of Orders
The effect of these clauses
Extension
Appeal
Revocation of a closure order
Costs and financial compensation
How this action must be seen in the wider context
Annex A -Closure notice check list for Senior Officers
Annex B - Process where occupier of a closed premises applies as homeless
Annex C - Use of the power

INTRODUCTION

1. This guidance relates to the provisions contained in Part 4 (closure of premises) of the Antisocial Behaviour etc. (Scotland) Act 2004 ("the Act") and is designed to help those who are responsible for the exercise of these powers to:

• Use the powers effectively and efficiently;
• See the use of the powers in the broader context of tackling antisocial behaviour; and
• Understand the implications of the powers as they relate to affected persons and the communities in which they occur

The Act received Royal Assent on 26 July 2004 and can be accessed at: www.scotland-legislation.hmso.gov.uk

2. This guidance is designed principally for:

• The police
• Officers of Court
• Local Authorities

3. Whilst these are essentially police powers, they should be used in consultation with the local authority. The approach to closure of premises under Part 4 of the Act should be set within the overall context of the statutory duty applying to police forces to participate in the creation of a local authority antisocial behaviour strategy under Part 1 of the Act and Section 22A of the Crime and Disorder Act 1998 (due to be repealed on 28 October). This guidance is directly relevant to the local authority as statutory partners in tackling antisocial behaviour. It also addresses the requirement placed on the police to consult them in the use of these powers. It is also directly relevant to local housing authorities, Registered Social Landlords (RSLs) and housing advice providers each of whom may be affected by their application.

4. These powers are designed to enable the police to close premises that are associated with disorder or serious nuisance. The powers will allow police forces to take rapid and effective action against activity which causes great harm to communities.

The intention of the new powers

5. This power has been created in order to allow police forces, working in consultation with Local Authorities, to take action on premises which cause significant and persistent disorder or serious nuisance to the local community. Persistent serious antisocial behaviour has a negative impact on community life, regeneration and social capital. The powers created offer a real opportunity to act swiftly and decisively to control these problems.

Contact

6. If you have any queries about this guidance please contact Police Division at the Justice Department on 0845 774 1741 or e mail: antisocialbehaviour@scotland.gsi.gov.uk

7. In addition, as part of the wider programme of support for the implementation of the Antisocial Behaviour etc (Scotland) Act 2004, the Executive is funding a telephone advice line for practitioners. The service will provide telephone advice and support on a wide variety of technical issues such as how to apply for an Antisocial Behaviour Order, the process of granting a closure notice etc. This service will be available from the end of November 2004 and the number will be widely published in advance. If you want to find out more information about the advice line, you can contact the Executive's Antisocial Behaviour Unit by email at: antisocialbehaviour@scotland.gsi.gov.uk

DEFINITION OF TERMS

Relevant Harm

8. In all cases of the use of this power it is required to demonstrate that persistent and serious disorder or serious nuisance is associated with the use of the premises. When a senior police officer assesses the need for the issue of a closure notice he or she has to have reasonable grounds for believing that:

1) at any time in the preceding three months a person has engaged in antisocial behaviour on the premises; and

2) the use of the premises is associated with the occurrence of relevant harm

Relevant harm is defined in Section 40 of the Act as

(a) significant and persistent disorder; or

(b) significant, persistent and serious nuisance to members of the public.

9. Problems which may constitute relevant harm related to the premises are outlined below. The following suggestions should act as a guideline as to the level of nuisance in and around the premises to be considered serious in this context:

• Intimidating and threatening behaviour towards residents and members of the public
• An increase in crime in the immediate area
• The presence or discharge of a firearm in or adjacent to the premises
• Significant problems with prostitution or sexual acts being committed in public
• Consistent evidence of discarded drugs paraphernalia and other dangerous items
• Serious disorder associated with alcohol abuse, for example in and around drinking dens
• High numbers of people entering and leaving the premises at all times of the day or night and the resultant disruption they cause to residents
• Noise - constant/intrusive noise - excessive noise at all hours associated with visitors to the property

10. Serious nuisance is often demonstrated by accounts from neighbours and/or professional witnesses of the distress caused to the community by the activities of the premises. The accounts should provide an objective basis for an assessment of the gravity of the problem. The accurate recording of events, over time, will also be very important to prove the sustained and intrusive nature of the relevant harm.

The meaning of consultation for the purposes of the Act

The purpose of consultation

11. The purpose of consultation is to seek the views of the local authority. Consideration should be given to those views when received, although there is no obligation as such on the police to accept them or act upon them. The requirement to consult the local authority does not give the authority any right to veto the service of a notice. Nor does informing a RSL as the owner of the premises that are to be closed give them any right of veto.

Who should be consulted

12. The Act places an obligation on the police to consult with the local authority for the area in which the premises are situated before serving a notice. The police may also wish to inform the relevant RSL where they own or manage the premises concerned, or other premises in the area, if this will not compromise the operation.

13. The Chief Executive of the local authority should in turn ensure all the relevant interests within the authority are involved in the consultation for example, housing management, homelessness, housing benefit administration, social work including child protection, licensing departments etc. Local arrangements should dictate a reasonable time period in which this consultation should take place. This period would, however, be expected to be brief considering that the intention of the power is that it can be utilised quickly.

14. Consultation (both the statutory and informal consultation) at as early a stage as is practicable is advantageous in that it enables the police to involve the local authority or RSL in the following ways as appropriate to their function:

• By discussing whether and when closure is appropriate, given the problem identified
• By agreeing the measures which will be used to resolve the problem in the longer term
• By gaining their support for the closure operation, where it is decided to proceed
• By notifying them of the impending action with a view to coordination where necessary
• By obtaining from them any additional intelligence relating to the disorder or serious nuisance
• By obtaining from them information about people affected, whether they are vulnerable and whether they will require support as a result of the closure
• By ensuring that the information about relevant advice providers for the closure notice is correct. Relevant advice providers are persons and organisations in the area that provide advice about housing and legal matters
• By enabling them to consider the likely demands that may be made upon them if the sheriff court makes the closure order

15. Through the consultation, notification can be given to the relevant RSL, and alerting other local authority services, such as social work and housing that may need to be given advance warning of potential demands to be made on their services. Additionally, the local authority or RSL, where they own the premises, may have a dedicated service or contractors essential to the process of securing and sealing the premises subject to the closure order who may need to be prepared. Such services may not usually be available out of hours.

16. There may also be others who could usefully be informed on a case by case basis, for example Private Sector landlords, but this is an operational issue dependent on the judgement of the authorising officer on the requirements of the individual case.

The context for consultation

17. There should be arrangements in place for the overall strategic management of such premises and other problems of this type between the local authority and the police. Such collaborative working in handling disorder of this type should be linked to an overall antisocial behaviour strategy required under Part 1 of the Act.

The definition of premises

18. The Act defines "premises" as including (a) any land or other place (whether enclosed or not); and (b) any outbuildings which are or are used as part of the premises. Any of the following are therefore included:

• Houses
• Flats
• Apartments
• Sheds
• Common areas adjacent to houses or flats
• Garages
• Factories
• Shops
• Pubs
• Clubs
• Public buildings
• Community centres or halls

19. In practice therefore, the definition includes any type of structure or place where at any time during the preceding three months a person has engaged in antisocial behaviour and the use of the premises is associated with the occurrence of relevant harm as defined in section 40 of the Act. This includes licensed premises. While the first forum for disorder associated with pubs and clubs will be the licensing system and local licensing boards are best placed to deal with this, there is no reason why such premises should be excluded from these provisions where the antisocial behaviour meets the tests for a closure notice to be considered. Upon commencement of the power no types or individual properties were currently exempted.

20. In theory the power could be used in relation to definable areas of a path, field or other land. However, the difficulty of securing such premises or areas means that the power is unlikely to be appropriate for these locations. In any case there may be other remedies and other legislative vehicles such as the Countryside (Scotland) Act 1967 and the Land Reform (Scotland) Act 2003.

21. The premises can be a sub-section of a larger building, such as a single flat within a block, or a room within a hostel or bed and breakfast hotel, where the room or flat could be closed while access maintained to the rest of the building. The power can be used flexibly to suit the needs of the individual case.

The definition of an interested party

22. An interested party is an identifiable person with an interest in the premises on whom the police should attempt to serve a closure notice, if they can be identified. The police must take reasonable steps to identify those with an interest in the premises. This should include any person who lives, has control of or responsibility for the premises or any other interests therein.

23. It is not possible to offer a precise definition of the term "interested party". The intention is to include as many people as possible who will be affected by the closure notice and subsequent order.

24. Failure to serve a notice, order or summons on an interested person cannot in anyway invalidate the proceedings of the court if reasonable steps have been taken to identify them. Such a person could however raise the matter on appeal to the Sheriff Principal.

THE CLOSURE NOTICE EXPLAINED

The purpose of the closure notice

25. The closure notice alerts those using the property, those resident, the owner and any others with an interest who can be identified, of the intention to apply to the court for a closure order. It sends a clear message to the community that action is being taken against the premises, and informing those who live in or frequent the premises that their activities will no longer be tolerated. It gives notice that impending closure of the premises is being sought and details of what this entails. In many cases persons in these premises involved in the persistent antisocial behaviour will have been previously warned of impending action, in an attempt to reform their behaviour, or may have been the subject of other law enforcement activity before any notice is served. It is, however, still essential that when the closure notice is served persons in or associated with the premises understand its meaning and that even at this point they have a chance to reform the behaviour associated with the premises. The notice is intended to encourage those who are not habitually resident to find alternative accommodation.

Requirements for the serving of the Notice

26. There is a requirement in the Act for the police to take reasonable steps to identify those with an interest, control or responsibility or who live in the premises before the notice can be authorised. Where possible consultation with local authorities should have involved discussions and exchange of information relating to the identification of these persons.

27. The police are not required to ensure that all such persons, who may have an interest in the premises and who may suffer financial loss as a result of the closure, are notified prior to the notice being issued. The Act requires 'reasonable steps' to have been taken. It may be the case that all such persons are difficult to trace and the delay required to identify them would remove the benefits of the power. However, the closure notice must be served on any such person who is identifiable at the property or who appears to have an interest or to be affected by potential closure, who can be easily identified by immediate enquiries to the tenant or those resident, or neighbours; or through local authority records. The fixing of the notice to the building is also intended to ensure the closure is publicised to anyone with an interest. The notice requires to be fixed at a prominent place on the premises, at each place of access and on any outbuildings.

The effect of the notice

28. It should be remembered that the closure notice in itself may on its own achieve the intended outcome of stopping the persistent disorder and nuisance. For this reason closure notices should be considered as part of strategic and tactical action against antisocial behaviour at a senior level. Before the court considers the application the notice may provide immediate relief to the community. The court must consider the application no later than the first court day after the notice is served (see paragraph 52). ¹

29. It also creates offences, backed with the power of arrest, for any persons who do not habitually reside in the property, who enter or remain in the premises. "Habitually resident" should be taken to mean anyone for whom the premises is their main or only residence. The intention is to encourage all those not properly resident to leave at this point and relief to be obtained during the notice period. However, it allows for the tenant to stay whilst they arrange alternative accommodation.

30. Some persons occupying the property may need alternative accommodation and may seek housing advice. Anyone occupying the property should, as soon as possible, be informed of their legal right to receive advice from the local authority on the basis that they are threatened with homelessness, and of the availability of independent advice in the area.

THE DECISION TO ISSUE A CLOSURE NOTICE

How a decision to issue a notice should be authorised

31. The decision to use the power must be taken by a senior police officer of Superintendent rank or above. He or she holds the appropriate overview of police action as a whole, enabling the decision to issue a closure notice to be made without compromising existing enforcement and intelligence operations. It is essential that this officer ensures that the correct consultation with the relevant local authority has occurred at an early stage, particularly - thought not only - where children or vulnerable people may be affected. The statutory Code of Guidance on Homelessness defines what is meant by "vulnerable people" and can be accessed at: www.scotland.gov.uk/library5/housing/cogh-00.asp

32. The relevant local authority will be the authority for the area in which the premises are situated. The senior police officer may also decide that it is appropriate to inform the RSL, as discussed in paragraph 12 of this guidance.

33. The officer should authorise a closure notice in writing. But where this written consent is not immediately possible, oral authorisation is sufficient as long as it is confirmed in writing at the earliest possible opportunity, and in any case, before the court hearing. In order to authorise the service of the closure notice the authorising officer must be satisfied of the following:

• At any time during the immediately preceding three months a person has engaged in antisocial behaviour on the premises; and
• The use of the premises is associated with the occurrence of relevant harm.

  And

• the local authority for the area in which the premises are situated has been consulted

  And

• That reasonable steps have been taken to establish the identity of any person who lives on, has control of, has responsibility for or an interest in the premises

34. In making this decision the officer should take into account:

• Whether the proposed actions will have the intended impact on the problem at hand
• The suitability of the powers, with all their implications
• The evidence about the level of disorder and nuisance and anti-social behaviour associated with the premises
• How this action is to be followed up ensuring the premises does not become re-occupied for similar purposes and how the closure can be followed up as part of the antisocial behaviour strategy for the area
• The views of the relevant local authority
• Any other powers - such as Antisocial Behaviour Orders - that may be more suitable or achieve the same result, without the need for the implications the closure power contains
• The availability of other powers which can be used alongside the power to support the overall aim of reduction of nuisance

Other potential powers

35. There are a variety of other powers, such as Antisocial Behaviour Orders, that may be suitable for dealing with situations of this type. The police officer is not required to demonstrate that he or she has considered all these options before authorising the issue of a closure notice, but it is a matter of good practice to consider them. If other powers can be used as an alternative to the displacement that might result from the use of these powers, but achieve the same result, then these should be seriously considered. The implications of serving the order on vulnerable persons, and thus what alternative solutions might be better applied in some circumstances, is relevant here.

SERVING AND ENFORCING A CLOSURE NOTICE

The contents of the notice

36. The Sheriff Court Rules Council is considering prescribing a form of notice for use. The closure notice must contain the following information:

• A closure order is being sought
• The premises to which it relates
• Only the owner or persons who are habitually resident at the premises may now enter the building
• The date, time and place at which an application for a closure order will be considered
• An explanation of what will happen should a closure order be granted- in particular that there will be no further entry to the premises and it will be totally sealed. If the premises are residential then the occupier will be forced to find alternate accommodation.
• An explanation that any person who does enter the premises who is not the owner or habitually resident there commits an offence and can be arrested.
• Information on relevant advice providers who will be able to assist in relation to housing and legal matters. This will depend on the particular arrangements in place for the area, and should be agreed with the relevant local authority as part of the consultation. Relevant advice providers would include the Housing Advice Centre or point of contact for applications for homeless persons, the Citizens Advice Bureaux and the Local Law Centre.
• Such matters about the application as may be prescribed in rules of court

Whom the notice should be served on

37. The notice must, where reasonably identified, be served on all those with an interest in the property, including residents (who may not be tenants but who live there nonetheless), the tenant and their dependants at the property; the owner or their representative; and persons affected through access to their property.

38. Identifying these persons need not delay the service of the notice. Normal police information resources and information requests from the local authority in the area in which the premises are situated should identify the owner or occupier. As in all such circumstances partnership working and identification of routes of co-operation make for the best exchange of information. If this information simply identifies a letting agent, serving notice on them is acceptable. Service of the closure notice can be effected by the affixing of the notice to the premises, but effort should also be made to give a copy of the notice to any interested persons. Sending a notice by post is not desirable, due to the speed and effects of the notice. However, if the owner or letting agent identified is not local, posting the notice may be considered sufficient as the only practicable means.

39. It is likely that the Court will require to know who the notice was served upon and when, and where and when it was posted on the premises. The Rules Council may prescribe a certificate of execution - similar to that used in the citation of witnesses and accused persons.

The service of the notice

40. It may be that the police may apply for a warrant to search the property at the same time as serving the closure notice. This may be entirely appropriate. However it is not a requirement. The closure notice may be served by a police officer of any rank.

41. Entry to the property is not required to serve the notice; it can be affixed outside or handed to the residents at the door with clear explanation of its nature and effect.

42. It will be for the police and the relevant local authority to decide the level of joint working on the service of the closure notice. In some areas, where it is considered safe to do so, it may be appropriate for the police to be accompanied by the relevant local authority or RSL officer.

Dealing with those in the premises

43. Once served, those at a premises affected by the closure notice may well choose to leave voluntarily. Those who habitually reside there should be advised to seek alternative accommodation. If they have failed to do so themselves, they should be referred to the closure notice or the advice providers referred to in the Closure Notice, regarding help with accommodation. It may still be possible for those resident to change the way the premises are used. However, it is an offence arrestable without a warrant for a person who does not normally live at the premises or is not the owner to continue to reside at or enter the property in contravention of a closure notice.

44. The extent to which this power of arrest is used is the decision of the officer in charge based on an assessment of the likelihood of continued disorder or serious nuisance. The application of this power is useful if those who have caused the relevant harm are removed from the house. If arrest serves this purpose it should be used. Use of the power may be appropriate as a tool in acting against persons identified through service of notice where intelligence suggests they have engaged in other criminal conduct.

The welfare of those to be removed from a premises.

45. There will be heightened concerns and hence partnership action needed when the closure of a premises which may be home to a family, and especially children, is sought. As in any other operational setting, officers must be alive to their responsibilities in terms of any child's welfare when dealing with such cases. Where a child is found in circumstances where there is reason to believe that child's welfare is at risk, officers must follow relevant force procedures in relation to child protection.

46. In all cases relating to the closure of premises it is essential that early contact is made with the relevant homelessness and housing officials in the local authority in order to establish the potential effects of that closure and, where closure proceeds, to mitigate those effects, particularly - though not only - where children and other vulnerable persons are affected. Contact should be made with the relevant officials as soon as possible to allow local authorities to act to prevent homelessness. Annex B summarises the process where an occupant applies to the local authority as homeless because of closure.

THE SHERIFF COURT

The Application

47. The application process that a senior police officer must go through to obtain a closure order is set out at Section 28 of the Act. Subsection (5) in particular details what should be included in an application, including a statement of the grounds on which the application is made and the form in which supporting evidence should be submitted.

48. In order to simplify procedures the Sheriff Court Rules Council is considering prescribing a form for use in making application for closure.

The Hearing

49. The key issues that will need to be demonstrated - to a civil standard of proof - are that a person has engaged in antisocial behaviour on the premises and that the use of the premises is associated with the occurrence of relevant harm as defined in Section 40 of the Act.

50. The court is asked to decide whether the making of the order is necessary if the occurrence of relevant harm is to be prevented. The court shall also, in determining whether to make a closure order, have regard to:

(a) the ability of any person who habitually resides in the premises to find alternative accommodation; and

(b) any vulnerability of any person such as is mentioned in paragraph (a) above

51. The court may also wish to consider whether alternative methods would be more appropriate, and what other action might have been attempted, which is why the history of action and considered action against the premises and its occupants may be important. It is not a requirement for the court to have evidence that these other methods have been tried first, or exhausted, nor need they have been tried, but the court may feel that other powers have more likelihood of achieving control and prevent occurrence of serious nuisance or disorder more effectively, and as a result the order need not be made.

52. Police must agree with court staff a date, time and place for a hearing, prior to the service of the closure notice. The date, time and place of the hearing must be on the face of the closure notice and must be no later than the first court day after the day on which the constable served the notice (the period excludes Saturdays, Sundays and court holidays). Prior to the hearing the police should ensure that the evidence to be presented is in good order. Support for community witnesses at the court may be necessary to enable them to give evidence.

53. The court is not asked to decide on the relative merits of applying the power to certain types of premises rather than others. The court is simply asked to decide whether the use of the power in the specific circumstances involved is necessary to prevent the occurrence of the behaviour. The court must make its decision upon the balance of probabilities and no property is exempt unless it has been made exempt by order of Scottish Ministers. Therefore, the status of the property in itself is not a necessary consideration of the court, unless the police have taken action against exempted premises.

Dealing with the arguments presented against closure

54. The owner of the premises or any person who has an interest or is affected may contest the making of an order.

55. The court will wish to hear why the order should not be made. The Act does not specify what reasons there should be for not making the order. This will be for the court to decide in each case. Possible reasons include:

• The landlord, owner or tenant has just been appraised of the situation, and can demonstrate that effective action is being taken to deal with it; or
• There is evidence that disputes the evidence presented by the police, or evidence that cannot be presented at this time but which will be presented subsequently, thus presenting a case for adjournment

56. The court operates on a civil rather than a criminal standard of proof (i.e. balance of probabilities).

57. The court can of course decide that notwithstanding the owner or landlord's contention that they will address the problem that a closure order should still be made, whilst they attempt to do so. If they believe they can subsequently demonstrate, sooner than the specified order period, that the problem has been successfully addressed, then an application can be made to the court for the order to be revoked. The court must then make an assessment of the capability or willingness of the landlord to be able to do so.

58. Hence the court nominally has three options, denial of the application, adjournment or closure. In practice the ability to vary the length of the order gives the court flexibility to deal with different circumstances where a shorter order may be appropriate, bring immediate relief whilst the landlord and police deal with the problem, but not leading to extended and costly closure.

59. The maximum length of an order is 3 months with possibility of further extension to total not more than 6 months. The length of the order should reflect the circumstances above and the desire to bring the property back into management as quickly as possible.

Dealing with arguments for adjournment

60. The court can defer hearing of the application for the order by adjournment for 14 days to allow those persons to prepare their case.

61. It is not the intention that all cases should be routinely adjourned. This would defeat the object of the power, which is speed. The court must decide whether an adjournment is needed. Anyone seeking an adjournment must demonstrate reasonable grounds why it is needed.

62. The arguments for an adjournment will be similar to those above for a closure order not to be made. However, in certain circumstances the court may believe that an adjournment, during which the powers of the closure notice continue, is the best way to ensure that the activities of the premises are controlled and other action to resolve the problems with the premises given the correct impetus.

THE CLOSURE ORDER EXPLAINED

63. Part 4 Sections 28 - 36 of the Act define the closure order and how it is used.

The effect of the closure order

64. The closure order gives a power to close a property completely and remove access by any persons, even those with rights of abode or ownership, except where they are allowed to enter the property under the supervision or direction or permission of the police or the court. The order allows for a property to be sealed, closed, and removed from public use for the period of the order. The closure order comes into force immediately the court makes the order.

65. Breach of the closure order is an offence and persons can be arrested if they enter the building.

Enforcing a closure order

66. As soon as a closure order is granted by the courts it should be enforced. This means the premises in question can be cleared of all persons present including residents and those with an interest in the property who may have remained after the service of the closure notice.

67. The police can use reasonable force to enter and seal a property. This is to allow removal of defences that are often built into such premises and to seal the premises with the required temporary building work or shutters.

68. It may be that the service of the notice did not involve entering the premises. The process of entering to enforce the order should be treated with extreme caution. Whilst in many cases the occupants will already have left, in others they may be resistant to leaving. Therefore the operation should be undertaken following a risk assessment and authorised persons such as local authority workers, maintenance staff, utility persons or Housing Officers should not be present until any safety issues have been addressed and the property cleared.

Dealing with those still occupying the premises

69. Those found contravening the closure order can be arrested, as officers on the scene feel is appropriate on the basis of the evidence available. Those inside or residing are likely to fall into these groups:

• The tenant/owner. They may be involved in supply of drugs, but they are as likely to be a vulnerable person, who may have social care and housing needs, related to mental health, age or some other cause, and whilst not involved in supply, may be involved in the use of drugs
• Dependants of the dealer/tenant, including children, all of whom will have a housing need, and some of whom may have welfare needs which require action and support from the local authority
• Drug/alcohol abusers who happen to be there, some of whom may have nowhere to go, and have particular health needs
• Sex workers, who could have problems of vulnerability, dependency and lack of shelter

70. These are only examples of persons likely to be found. The only persons who are able to enter the premises following the closure order are police officers or persons authorised by the chief police officer or those persons granted access by the court.

71. There are real advantages in developing systems and protocols between the police, local authorities and social landlords before the issue of a closure notice to cope with the possible displacement from the closure. Such protocols are actively encouraged and should cover a range of issues such as determining what information should be included on the closure notice itself, advice to those affected by the notice, practical arrangements for managing situations of this type, processes for safeguarding the welfare of affected children and other vulnerable persons, early exchange of information and clear systems for dealing with possible homelessness and housing issues, and access to any legal advice that might be needed.

72. The local authority will have been informed of the service of the order. This enables the local authority to develop appropriate mechanisms for those who may need alternative accommodation.

73. The following are matters in which the local authority may be concerned:

• Housing advice services including homelessness and housing benefit
• Building maintenance to assess the condition of the premises
• Securing the premises, where they are part of their own housing stock, through the imposition of metal window blinds, secure doors and any other measures necessary to prevent further access to the premises
• Local Authority Supporting People Programmes
• Tenancy Management
• Removal of possessions to future addresses

74. The landlord will also need to decide what to do in relation to any tenancy or other rights of abode any person residing at the property may have. When an order is made it has no impact on ownership or tenancy or other rights to the property. If a landlord wishes to obtain possession of the premises or otherwise recover it to be re-allocated to another occupant they will need to follow the appropriate procedures, including obtaining a court order, in each case.

75. It is possible that the tenant or similar will simply give up their rights to the property or they may choose to retain their tenancy after the closure order has expired. In these circumstances the local authority or other landlord will have to decide how it intends to handle this situation.

76. A tenant who intends to return to the property after the closure order has expired may, depending on circumstances, find that he or she is liable for rent on two properties for a period but is able to obtain Housing Benefit for only one rent. This may mean financial vulnerability with an impact on the tenant and on other household members including children. The potential for this to happen will be one of the factors that the Sheriff has regard to in considering an application for a closure order. It is therefore important that the police should liaise with housing and Housing Benefit officers of the local authority on the options available to the tenant and their consequences, and on the advice that should be given.

MANAGEMENT OF A CLOSURE ORDER

Issues during closure

77. It is important that following the closure, the empty premises do not cause greater problems than before the closure order was made, such as through vandalism or being taken over illegally - including by the very persons who have been displaced. They should continue to be monitored and the sealing maintained in good order. It will not be required to obtain another order to re-close the building as the original one still applies until it lapses.

78. The power to close premises can be a genuine quick win with communities who can see the direct consequences of information they may have supplied. It is essential that this trust is built on. The police, the local authority and, if appropriate, RSLs should work to build on the momentum created by closure to build further trust through good community liaison.

Special considerations for non-residential premises

79. This power is available for use against any premises where there is persistent and serious nuisance or disorder. Premises such as licensed premises, warehouses and business premises for example can be closed if subject to a closure order. Closure would have a dramatic effect on the viability of a business, especially a small one and hence can be used as a very effective incentive to reform where this is necessary.

ACCESS WHILE A CLOSURE ORDER IS IN FORCE

80. This is covered by Sections 31 and 34 of the Act. Section 29 allows for the police or persons nominated by the police to conduct building work via access to the building. It enables the police to authorise any non-police persons to enter the premises. This should not be the occupier or other persons unless there are very good grounds for doing so, and such persons should be accompanied if they are permitted, as they may be complicit in the criminal behaviour involved; unless the owner is the local authority or other responsible authority.

81. The intention of Section 34 is to allow persons access to areas such as common parts or stairwells. This section permits the variation of the closure order to allow them access to those common areas.

EXTENSION, APPEALS AND DISCHARGE OF ORDERS

The effect of these clauses

82. The Act entitles any persons on whom a closure notice was served, as well as any person who has an interest in the closed premises, to appeal against the making or extension of a closure order. An appeal may also be brought either by a police constable or by a local authority against the refusal to make or extend an order. Appeals can also be brought against access orders, orders to revoke a closure, and reimbursement of expenses orders. Such appeals must be made to the Sheriff Principal within 21 days of the initial decision.

Extension

83. It is undesirable that the extension of a closure order after three months will be a routine occurrence. There are many disadvantages in leaving properties empty for an extended period, and few advantages. Only where there are real concerns that the property will return to its former use should an extension be made.

84. Only a senior police officer may seek the extension of the closure order. As with closure notices, this must be first authorised by a senior officer, after consultation with the relevant local authority and tests are the same as those for the issue of a closure notice. Where this route is taken it should only be used where more time is needed to change the nature of the premises or to allow proceedings for its compulsorily purchase, for example, to be completed. Where the police had involved the relevant social landlord in the issue of the closure notice, they may wish to involve them again at this stage. Only an order which is still in force can be extended. If it is thought an extension is required this should be applied for at least three weeks prior to the date on which the original order will expire.

85. In the case of buildings not occupied, which have been taken over illegally, then closed by order and which otherwise stand empty, there may be a risk that once they are unsealed, the dealers will return. This is a decision for the court to make, but continuing emptiness through extension on the basis that there is a risk they may return to their former use is not productive. Good housing management rather than this action will help them return to productive use. The owners should be asked to show what would happen once the property is unsealed. It may be necessary to commence compulsory purchase proceedings as soon as possible if these premises continue to pose risks of criminal activity.

Appeal

86. The sheriff principal, in hearing an appeal, shall judge each case on its merits. The Act does not define the grounds on which an appeal shall be granted; simply that the court must make an appropriate order. It may be the case that the appeal case rests on the basis that the problem is now under control rather than that the order should never have been made. The court shall have to decide on the basis of such factors as:

• The case made by the police for the closure order to continue and the evidence presented that continuance of the order is required to prevent re-occurrence of disorder or serious nuisance.
• The evidence that the problem is now under control; and
• The arguments presented that the original decision was wrong

Revocation of a Closure Order

87. The police or local authority may wish to have the order discharged before 3 months expires. This is completely desirable where the problem has been satisfactorily addressed. In relation to discharge, the court must decide that the order is no longer necessary to prevent the occurrence of persistent and serious disorder or serious nuisance. Wherever early discharge is possible it should be encouraged. No property should stay empty longer than is necessary. Where for example the tenant is prepared to surrender the tenancy immediately, the property can be brought back into management almost straightaway and the order can be discharged more quickly. Other occupants with other housing status (such as licensees) may have their rights to occupation of the property taken away where this is felt appropriate, and again the property brought back into management more quickly and the order revoked. Other tenants may not give up their tenancy and the landlord may choose to act against them to recover it by obtaining a possession order, which may take some time, and which therefore may be a ground for continuing the closure. However, many local authorities have considerably speeded up eviction procedures through improved systems and procedures and these should be applied to recover properties of this type. Where this occurs the property can be safely discharged from an order and re-opened for letting more quickly.

88. The court may wish to be reassured that the owner or landlord is prepared and able to provide the required level of support needed to ensure the same pattern does not re-occur, before discharging the order. Certain properties are more prone to be taken over in this way due to their location, or the pattern of allocation of tenancies to vulnerable persons. The court will wish to be satisfied that the right level of support will be available to any vulnerable persons before revocation is considered to prevent events re-occurring. Such re-letting will require strong co-operation between the police, local authority and landlord depending on the circumstances. It may be that the original tenant wishes to return to the premises, but this will have to be thought through very carefully and the person offered considerable support. This is a matter for the court to consider as well as the housing body as discharge in these circumstances may be ill-advised without necessary support and good housing management practice.

89. However, where those with a legal right to occupy or those connected with the premises seek the discharge of the order themselves, careful consideration must be given to the likelihood of the previous behaviour returning and what other solutions are being pursued by the police or local authority to control the behaviour.

90. In the case of private landlords or owners, the court will need to have many of the same reassurances, and in particular evidence that the private landlord will try to manage the situation more firmly. Only if the court is satisfied with their capability and willingness to get the problem under control should the order be discharged. Where the court has grounds for believing the landlord was culpably involved in the original behaviour, discharge of the order should rarely be granted.

COSTS AND FINANCIAL COMPENSATION

91. The court may approve an order of costs against the owner for any expenses incurred by the police or local authority in enforcing the closure order. In order to gain these, the police or local authority must apply to the courts detailing their expenses. If the court decides that the owner of the premises is liable for these costs, for example for the mismanagement of the premises, then appropriate costs can be awarded.

HOW THIS ACTION MUST BE SEEN IN THE WIDER CONTEXT

92. Whilst at the simplest level this guidance is about the specific way these powers should be used, in practice their use needs to be set in the context of the wider need to address persistent antisocial behaviour in such settings.

Scottish Executive
October 2004

Annex A
Closure Notice Approval Check List for Senior Officer

• Is there persistent and serious disorder or serious nuisance from the premises?
• Has evidence of this been appropriately collated?
• Is this within 3 months of the authorisation of the Closure Notice (today)?
• Has the Local Authority been consulted?
• Has this involved an exchange of information and have their views been taken into account where desirable?
• Have those who live, control, own or have responsibility or an interest in the premises been identified?
• Have Notices been prepared to be served upon them?
• Have other options been considered or tried where possible?
• Has a Sheriff Court Hearing been secured for no later than the first court day after the intended date and time of service?
• Does the Closure Notice contain the information required by the Act?
  • Notice of the application for a Closure Order
  • State the date, time and place where this will be heard
  • Inform all persons that access to the premises by those other than the habitual resident or owner is prohibited
  • Explain that access by any other persons is considered an offence
  • Detail the effects of a Closure Order if issued by the court
  • Provide information on how to contact advice providers such as housing or legal advisors or organisations
• Has a risk assessment been made against the premises?
• Has appropriate back up therefore been provided and other policing tactics to be used alongside this action been considered?
• Has the nature of the premises and possible vulnerable persons or children been considered?
• Have appropriate services therefore been notified of the potential demand upon them by these groups?
• Has the social good of closure been considered?
• Have arrangements been made for the secure sealing of the premises and the isolation of utilities?
• Have Scottish Ministers granted any exemptions to types of premises?
• If so does the premises fall within that exemption?
• Have appropriate structures been put in place to ensure witnesses can be contacted for the case and will be kept informed of developments?
• Is there a plan to follow up the closure with renewed efforts to combat antisocial behaviour and criminal activity in the area?

Annex B
Process where occupant of a closed premises applies as homeless

NB*: Different procedures for intentionally homeless applicants in priority need will apply after commencement of relevant provisions of Homelessness etc.(Scotland) Act 2003)

Footnote

1. Has a Sheriff Court Hearing been securedfor no later than the first court day after the intended date and time of service?