Enforcement – EACC Saturday Morning Question Time – January 9th 2010-01-11
City Chambers, Council Chamber 10 am to 12 noon (Final)
The meeting was chaired by EACC Chairman David Salton
Notes provided by EACC secretary Jenny MacKenzie
Attending for the panel were:
Graham Drummond – Acting Community Protection, Manager for Services for Communities
Charlie Holt -- Community Safety Manager, East NP
Tom Stirling, -- Environmental Protection Manager, Services for Communities.
Alistair Somerville – Head of Section, HMO Licensing and Inspection.
Derek Henderson, Group Leader Development Monitoring for the Planning Department.
Each member of the panel briefly described their duties and areas of responsibility:
Graham Drummond noted that he is overall manager of issues relating to anti-social behaviour, noise control, and some environmental issues, such as graffiti and dog fouling, working in close liaison with the police. The department receives 9,000 Antisocial Behaviour Noise calls per year, all coming through the Lothian and Borders Police Call Centre and 2,000 other noise calls direct to the council.
Charlie Holt is a regional Community Safety manager (East Neighbourhood Partnership), with duties similar to those described above. Environmental services include issuing fixed penalties for dog fouling, which is high on the complaint list in any area. Enforcement is a large part of the work of Environmental wardens and Community Safety Concierges. The Neighbourhood Partnership (NP) Action Unit for the East NP will expand to 26 members on 1st March 2010. Their duties include fixed penalties, school patrols, domestic noise and vandalism. As a result of the range of duties there is a lot of enforcement to implement.
Derek Henderson is responsible for enforcement action for the Planning department of CEC and his duties include all matters to do with unauthorised building work, changes of use to buildings and related issues. There is a team leader, six officers and some support staff in the department which deals with almost 1,000 cases a year. There are currently 58 cases in which statutory action is being taken. The action will include all the people with an interest in the property affected by the action.
Tom Stirling is Environmental Protection Manager within the Environmental Health and Trading Standards Division. His remit includes pollution control and licensing standards in pubs, clubs, etc. There is a host of legislation with an enforcement element within Environmental Health and Trading Standards. Much of this work goes on without the public being aware, unless there is a problem which attracts press coverage. For example Food Safety inspections, pollution monitoring in smoke- control areas, Trading Standards work in the business community. Licensing Standards Officers focus on monitoring and compliance issues in all matters to do with premises with liquor licences. The first approach is always to aim for co-operation in meeting the standards required. But if businesses fail to comply, then enforcement action may follow.
Alistair Somerville is a manager for properties licensed for rental as Houses of Multiple Occupation (HMOs). SfC is the Council’s lead department and HMO licensing sits within the Private Rented Sector division. Although a number of departments are involved in this area of work, joint working takes account of synergies between the different related enforcement and advisory functions. There are over 30,000 private sector rented properties in Edinburgh, of which 5,500 are HMOs. Glasgow has about half this number. It is an offence to operate without an HMO licence. Inspections ensure property safety, facility and repair standards are met. Enforcement Officers deal with unlicensed HMO and tenant or neighbour enquiries/complaints. Seconded Fire and Police officers also work in the teams.
Question: A CCllr from Merchiston has a petition bearing 100 signatures from local residents requesting that neglected gardens, derelict houses and neglected properties be required to meet higher standards and ‘clean up their act’. The responsibility lies with the landlord. The Landlord Register will often identify owners, but often the landlords do not live in the city, or even the country. Two areas of legislation that could be invoked – Anti-social behaviour, which causes ‘distress’ to another person, and the Town and Country legislation, relating to lowering the amenity of the area. However, requests by the individual for CEC intervention have not been successful
Graham Drummond: the Antisocial Behaviour (Scotland) Act was introduced to protect the public from behaviour that causes or is likely to cause alarm or distress. It would not be appropriate to use this legislation for neglected gardens.
Two other CCs have indicated problems of a similar nature. In Hutchison Chesser it is noted that overgrown hedges make some pavements unsafe, and discarded items of furniture in front gardens appear to be creating a health hazard. In Leith Central, a derelict former petrol station attracts children climbing on the roof which is seen as a health and safety issue.
Members agreed that neglect of some properties is a city-wide problem. It was suggested that a city-wide working party could be established to decide on the best way forward. Cllr Gordon Buchan has submitted a request for consideration of the issue to full council. Both Merchiston CC and EACC will enquire about the outcome.
One CCllr suggested that asking the CC to intervene and speak to the property owners about improving the upkeep of the property is one alternative. Others preferred that individual rights should be respected – that homeowners and tenants have the right to maintain or not maintain their properties as they wish.
Alistair Somerville: A collective initiative is a good plan. Enforcement has to be based on legislation which is interpreted and applied on the basis of judicial precedent and case law. If there was public health legislation which allowed us to say. 'clean up your garden’ then we would have power to act. No such legislation exists. For this reason community involvement and a collective approach have a lot of merit.
Charlie Holt: When assessing anti-social behaviour we always ask ‘What is the end game?’ “That is, do we have a case that will pass the Procurator’s scrutiny.”
If there is no result to be gained, then we would never get a conviction. However the complaint would still be registered, therefore on record.
Derek Henderson: There is one power under the Planning Act which could deal with untidy gardens. This was originally the 1947 Act, brought in after the war, to deal with bomb damaged sites and derelict land. But the problem would have to be very bad. The question arises – When is it a serious issue? If the problem is due from mere neglect, then we don’t have enough powers. The problem would have to be posing a serious threat to the amenity of the area.
Alistair Somerville. Regarding the suggestion that the Council should deal with private gardens and then charge the owner. We have to be very careful about invading the privacy of individual citizens without any basis in law to do so. However, the suggestion of raising awareness of the issue is a good one. Regarding the Landlord Register -- over 90% of landlords in Edinburgh are now registered, but access to the information is by individual property address. It is not intended to provide a global address list of all rented properties. For example, the register is not there to provide a list to be used for commercial purposes. Although it requires a point of contact for all landlords it is not intended that this should require them to make their home address and phone number public.
(Subsequent to the meeting, the EACC was informed that the query about neglected gardens in Merchiston had been referred to:
(1) Letwise for follow up in terms of landlord information, advice & training and
(2) to the South West Neighbourhood Partnership & Information officer to follow up with the CC for the area)
A question from a prospective landlord re neglected properties: These fall through the net of current legislation. Several organisations such as the Private Rented Housing Panel and Let Wise need legislation to assist them in pressing for change. Is there a Byelaw which is relevant?
The panel responded that a local Byelaw has to be approved by the Scottish Government. Community activists pressing for change in legislation can submit a petition to the Government requesting the change that they are looking for. The problem is of definition – what is deemed a ‘danger’ or ‘unacceptable’ etc. Much debate and consideration of any issue would be required before a Byelaw would be put in place. It is possible to create change in legislation, it is not an easy process, but it can be done. There would need to be sufficient need city-wide for such a change.
One CCllr noted that a tree that badly needed pruning near public paths was quickly trimmed once CEC had been notified. She also noted that petitioning local residents, collecting signatures and enlisting support for an initiative can effect change in an area.
A CCllr asked about premises licensed to sell alcohol creating noise for local residents. Sometimes it is not the business generating the noise, but the people leaving the premises who disturb residents in the surrounding streets.
The panel noted that there is a well-monitored requirement that amplified music and vocal from licensed premises are inaudible in nearby noise sensitive dwellings after 11pm. Notes of complaints do go on record and when licences come up for renewal, a high number of complaints could affect the reissue of a licence.
Question re traders using small bins for disposal of waste.
Charlie Holt: A £50 fine is imposed on traders who illegally use residents’ bins to dispose of waste. Those fined do pay up and usually do not reoffend. Builders who dispose of waste illegally are harder to trace, but if reported they are also fined. Consideration has been given to increasing the fine, but this could be counter-productive. The fine was increased from £25 to the current £50. The maximum of a fiscal fine is £100. Effective monitoring is the key to handling this issue.
The panel noted that the aim of enforcement is to stop the inappropriate behaviour. Too much legislation is not meeting the needs of the individuals. However, when senior officials are aware that legislation is not dealing sufficiently with an issue, they make representations to the Scottish Government advising that a change in legislation may be required. They will also respond to consultations arising out of public and political representations. For example, this was the case with ‘Stag and Hen parties’ held in private dwellings, which can be a source of disturbance to other residents. The Government has asked if this is a problem serious enough to require legislation, but at this point they have advised that this is not regarded as at such high priority.
Graham Drummond: In this case we are producing guidance notes for landlords, users and neighbours. (At present Holiday Lets are exempt from the Landlords Register.)
Tom Stirling: We are also investigating reports that in some cases the landlords are providing alcohol on the premises for these events. This we can pursue because this raises alcohol licensing issues.
Working groups are always being conducted to examine various issues. A lot of changes have occurred as a result of working groups. Community activists are encouraged to press for such a group, or to give information to such a group on any issue of concern.
Question; what proportion of enforcement notices are finally dropped?
The panel noted that enforcement must be backed up by a sufficient proportion of evidence. If deemed insufficient, or not providing sufficient deterrent, the fiscal sometimes doesn’t take up the case. In some cases the fine can be lower than the cost of the original licence. However a significant number are successful and can provide an important deterrent.
Graham Drummond: : Sixty per cent of the fines issued are paid for anti-social noise. The fiscal can issue a fiscal fine against offenders who fail to pay the fixed penalty.
Charlie Holt noted that about 15 cases have been brought to court for anti-social behaviour in the last year. All cases that went to court were 100 per cent successful.
A CCllr noted that developers openly disregard planning permissions.
Derek Henderson: Many breaches of planning control are done in ignorance and most are settled by negotiation. This would apply to most of 1,000 reports of unauthorised activities within the year. Knocking down a building that has breached planning consents is very much a last resort, but we can stop the works, or knock the building down if the breach is a flagrant one. We are aware of developers who do not stick to the agreements. Often, notice that we will attend to demolish the building leads to the required change.
(Subsequent to the meeting, Derek Henderson noted: “It was clear from some comments towards the end of the meeting and afterwards that some community councils have specific cases which are causing them particular problems. It is difficult for me to comment on cases which are still ongoing, but I am always happy to provide a more detailed written response to particular issues if this is required.)
Question: Am I entitled to use any bin to dispose of my waste? Technically any business producing waste should regard its waste as trade waste. Thus a trader using bins for its waste from areas outside the vicinity of the bin would be breaking the law.
Question: What is the situation re cleaning snow and ice from the pavement in front of your house?
The panel noted that individuals do have personal responsibility for their actions. Third party insurance should cover liability, but insurance companies would be quick to reject an application which did not strictly meet the terms of the agreement. Many choose not to do so because of fear of legal action by others. It is believed that there is a local By Law that does require residents to clear their own paths and driveways, however the panel confirmed that there is no such By Law in place.
(An article appeared in the press subsequent to the meeting, written on legal advice, which emphasized that it is the individual property owner’s responsibility to clear the pathway and entrance to their dwelling to enable reasonable access to people like postmen etc. You could be sued if you don't clear your path, and it is agreed by more than one legal opinion that, should someone fall and sue, no court would take any action against anybody who had made efforts to clear their paths.
Re the Council’s responsibility: It is not in all cases the Council's responsibility to clear roads and pavements. In Edinburgh we do have a category system and if the Council can be shown to have made reasonable efforts to fulfil its responsibility on the top category roads and paths, then it would be not be liable for damages in court action.)
Question about noise from public events, such as on the Meadows during the Fringe Festival. Merry Go Rounds, various Fun Fair rides and some performers can have continuous music playing during the whole three week period. It is up to the Council to control the level of noise and to ensure that it stops by 11pm at night. The panel noted that Edinburgh is ground-breaking in insisting on adherence to the inaudibility rule in respect of permanent licensed premises. Members complimented the ‘zero tolerance’ approach to licensed premises that break the rules.
The panel summarised that mediation is always the preferred option and that the Licensing Service Officers work hard to handle complaints in this way, rather than pressing for legal action. This option is always a last resort. Officers in all areas of enforcement work hard to open channels of communication.
The panel also acknowledged that it is still early days in the Neighbourhood Partnership process. Each NP also has different priorities.
EACC Vice chair Richard Ellis emphasized earlier remarks that either a working party, or a strategy group could be formed to further community involvement in seeking changes to legislation. Though members of the panel noted that they could not be directly involved, they would welcome regular communication about such a process.
The meeting concluded with the Chairman’s thanks to all members of the panel for attending on a Saturday morning. It was acknowledged that the meeting was interesting and a good source of information about a range of issues which require enforcement.
