< Previous | Contents | Next >

Guidance on the Mandatory Licensing of Houses in Multiple Occupation

appendix

Appendix 1

LICENSING PROVISIONS AND EXPLANATION OF THE ORDER

This appendix falls into two sections. The first explains the relevant licensing provisions laid down in the Civic Government (Scotland) Act 1982, as amended by the 2000 Order, while the second explains in some detail the provisions of the Order itself.

LICENSING PROVISIONS

Introduction

This section summarises the main points of the general provisions on licensing of premises in Part I and Schedule 1 of the Civic Government (Scotland) Act 1982, which apply to mandatory HMO licensing, as modified by the licensing order.

Licensing authorities

Licensing authorities are local authorities (section 2).

Applications for Grant or Renewal of Licence

The application must be made in writing, and detailed contents are set out at Schedule 1, paragraph 1.

Time Limits

Licensing authorities to consider licensing application within 3 months, and to reach a final decision within 12 months (unless period extended by a sheriff); if final decision not reached within time limit, then licence granted or renewed for 12 months (section 3).

Consideration of Application, Including Objections and Representations

Licensing authority to make such reasonable inquiries as they think fit, and to consider relevant objections and representations, before taking a final decision on a licence application, after giving applicant at least 7 days to reply to objections and representations (Schedule 1 paragraph 4).

Notification of Applications and Decisions

Notice of application for licensing of premises to be sent by authority to Chief Constable and fire authority, and displayed at the premises for 21 days. Licensing authority may give public notice of applications in a newspaper (Schedule 1 paragraph 2). Licensing authority to keep a public register of licence applications and decisions on them (Schedule 2, paragraph 14). The applicant, Chief Constable, objectors, and fire authority to be notified of decision on licensing of premises within 7 days (Schedule 1 paragraph 5). Applications for women’s refuges not to be publicly notified, except by letters by the licensing authority to neighbours.

Rights of Entry and Inspection

Authorised officer of licensing authority, fire authority, or police constable has rights of entry and inspection of premises, and to require production of and inspect equipment etc. and records, for premises covered by licence or licence applications (section 5). Police constable or authorised officer of local authority has power to enter and search unlicensed premises, using reasonable force, if a JP or sheriff issues a warrant on being satisfied by evidence on oath that there is reasonable ground for suspecting activities which require a licence, but are not licensed, are being carried out at the premises (section 6).

Decisions on Applications

Licensing authority can grant or renew licence, refuse application, or grant application subject to conditions, which conditions must be reasonable. Licensing authority must refuse an application where, in their opinion, a person involved directly or indirectly in its management is not a fit or proper person, and that premises are not suitable or convenient for proposed activity in specified respects (Schedule 1 paragraph 5). Where application refused, licensing authority cannot consider a fresh application until after a year has passed, unless there has been a material change of circumstances (Schedule 1 paragraph 6).

Material Changes

Licence holder to notify licensing authority of material changes affecting that person, or licensed activity, as soon as reasonably practicable, and for premises prior consent of licensing authority is required for any material change (Schedule 1 paragraph 9).

Variation or Suspension of Licence

Licensing authority can vary or suspend a licence as they think fit, giving at least 7 days notice to the applicant, Chief Constable and fire authority, and a chance to be heard on the proposed decision, and notify the decision in writing within 7 days (Schedule 1 paragraph 10). The licensing authority has power to suspend a licence for premises, whether upon a complaint made to them or not, where a person involved in its management is no longer a fit or proper person, the licensing activity is causing or likely to cause undue public nuisance or a threat to public order or safety, or licence condition is broken. Before suspension, the authority shall give the licence holder, any complainant, the Chief Constable and the fire authority an opportunity to be heard, giving 21 days notice of the hearing in writing. The authority must give written notice of the decision within 7 days (Schedule 1 paragraph 11).

The licensing authority also has a duty to suspend a licence (whether or not on a complaint) if they are of the opinion that the licensed activity is causing or likely to cause a serious threat to public order or safety. Before suspending, the authority may undertake reasonable inquiries, and must notify the licence holder and consult the Chief Constable and fire authority (Schedule 1 paragraph 12). The decision has effect for 6 weeks or until a decision on suspension under paragraph 11, and the licensing authority must notify in writing the licence holder, Chief Constable and fire authority.

Duration of Licences

Licence is for 3 years or such shorter period as the authority decides (Schedule 1 paragraph 8). The authority can grant a temporary licence for not more than 6 weeks, although, if an application for a permanent licence has been made, the temporary licence will continue in effect until final determination of the application (Schedule 1 paragraph 7). The holder can surrender the licence at any time (Schedule 1 paragraph 13).

Fees

Licensing authority can charge fees for licence applications, consideration of material changes of circumstances, and issue of duplicate licences or certified true copies (but not for the issue of the original licence). The fees must be reasonable and cover the authority’s total costs for exercising its licensing functions (Schedule 1 paragraph 15).

Reasons for Decision and Appeal to Sheriff

On request the licensing authority must give reasons for any licensing decision in writing, and within 10 days of the request, if request made within 28 days of decision by relevant person. The relevant persons vary slightly between different decisions, but include the licence holder, Chief Constable, fire authority, and objectors or complainants. The Sheriff can also require an authority to give reasons if hearing an appeal, if they have not already been given (Schedule 1 paragraph 17).

Anyone who can require a licensing authority to give reasons for a licensing decision can appeal to the sheriff against it by summary application. The appeal must be lodged within 28 days (unless the sheriff extends this period for a good cause) and the applicant must have already used procedures under Schedule 1 to state his case to the authority (who can be a party to the appeal). The sheriff can uphold an appeal only if the authority erred in law, based their decision on an incorrect material fact, acted contrary to natural justice, or exercised their discretion in an unreasonable manner. The sheriff can reverse or modify the authority’s decision, or remit the case to the authority, with reasons, for reconsideration (Schedule 1 paragraph 18).

Offences

Offences under licensing provision (including making false statements), and penalties, are set out in sections 5-7 and some individual provisions. Penalties consist of fines, and the court can also revoke a licence and/or disqualify a licence holder from holding a licence for up to 5 years.

EXPLANATION OF THE ORDER

Article 2

2(1) defines a number of terms used in the order.

2(2) explains what types of HMOs are exempted from licensing.

2(3) explicitly includes student accommodation as HMOs, and excludes patients in public hospitals from counting towards the occupation threshold.

2(4) explains that though a building may comprise separate dwellings where there are certain shared facilities, for the purpose of licensing the dwellings are to be considered as part of a single house.

2(5) defines a family for the purposes of the order and 2(5)(a) is drafted to include same sex couples.

Article 3

3(1) and(2)designates the activity which will require a house to be licensed as an HMO, i.e. ‘giving permission for a house to be occupied’ given that ‘a person giving permission permits a house to be occupied if, and only if that person is the owner of that house; and that person knowingly gives permission for that house to be occupied; and that house is a house in multiple occupation.’ The article is worded in this way to include both leasing and other less conventional forms of arrangement. A licence is required if the premises are an HMO or part of an HMO or the result of granting permission to occupy is that the premises will become an HMO or part of an HMO.

3(3) provides a defence to criminal charges, where there is more than one owner of the HMO, to a person if another owner holds a licence.

Article 4

explains that, subject to the modifications in the schedule to the order, Part I of the Civic Government (Scotland) Act 1982 will provide the basic rules for HMO licensing.

Article 5

sets out the occupation thresholds defining a house as an HMO for the purposes of licensing under the order. The thresholds are the number of qualifying persons occupying the premises at certain dates. The threshold will start at six or more at 1 October 2000 and decrease to three or more at 1 October 2003.

Article 6

6(1) provides that where a house was (in effect) an HMO prior to 1 October 2000 but was not required to be licensed under an existing voluntary scheme, a licence under this Order can be applied for before 1 October 2000, provided that the number of qualifying persons is then the same or more than the initial threshold. The effect of this is to exclude criminal charges for operating without a licence until that application is determined.

6(2) identifies who paragraph (1) above covers and specifies the period that provision applies for. Where the licence is granted, this is the period up to grant and where refused gives a period of grace following the refusal, so that the operator can take steps to cease operating an HMO without a licence.

Article 7

excludes licensing (in the first year) where otherwise needed in the case of a licence held under a voluntary scheme, by continuation of such voluntary licence. It provides the point at which the holder of a licence under the 1991 order will have to apply for a licence under the mandatory scheme. Because of the period potentially needed in that first year to deal with applications, 1991 Order licences (for such cases) which expire in the first year are extended until 30 September 2001, at which point a licence under the new Order will be needed where the relevant threshold number of occupiers applies. (Discretionary licenses will though be renewable until the mandatory scheme’s threshold equals the threshold of the discretionary scheme under which they are issued.)

Article 8

makes the same provision where the threshold number of occupiers is triggered after the first year of mandatory licensing, delaying the need in such cases for a licence under this Order. There is however no extension of such licences because there is adequate time in such cases to apply for a licence under this Order to take effect from the expiry of a 1991 Order licence.

Article 9

9(1) provides that the 1991 order is revoked on 1 October 2001 when the mandatory scheme’s threshold comes down to more than four.

9(2) provides however that discretionary licences granted before 1 October 2001 under the 1991 Order will continue in effect after that date until they expire, are withdrawn or are suspended or revoked (after which a mandatory licence will be required).

The Schedule – makes modification to Part I of the 1982 Act by:

• extending the time period for the final consideration of a licence application from 6 months to 12 months (para.1).

• extending powers of entry and search of premises suspected of being an HMO to an authorised officer of the local authority (para. 2).

• increasing the maximum level of fine payable in respect of an offence under Part I of the 1982 Act to level 5 (para. 3).

• dispensing with the need for any publicity (apart from letters to neighbours) when an application is in respect of a women’s refuge (paras. 4, 5, 6 and 8).

• preventing the licensing authority from using licensing powers to control the level of rent charged to tenants of such premises (para. 7).

< Previous | Contents | Next >