SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

2014SCGLA65

SD238/14

JUDGMENT

by

SHERIFF S. REID, Esquire

in the cause

THE GLASGOW HOUSING ASSOCIATION LIMITED

PURSUER

against

MARK STUART

DEFENDER

______________________________

 

GLASGOW, 26 November 2014. 

The sheriff, having resumed consideration of the cause:

FINDS IN FACT

(1)        The pursuer is the landlord of the subjects known as Flat 10/5, 7 St Mungo Place, Glasgow G4 0PD (“the subjects”).

(2)        The defender is the tenant of the subjects. 

(3)        The subjects comprise a two apartment flat situated on the tenth floor of a multi-story residential block.  There are 24 floors within the block.

(4)        The defender occupies the subjects under a Scottish secure tenancy agreement with the pursuer dated 28 February 2005 (“the tenancy agreement”).

(5)        The defender’s occupation of the subjects under the tenancy agreement commenced on 12 March 2005. 

(6)        The defender occupies the subjects alone.

(7)        On Friday 24 May 2013, acting on intelligence, police officers attended and detected a strong smell of cannabis emanating from the subjects. 

(8)        Later that day, police officers re-attended at the subjects. Upon identifying themselves to the defender, the defender volunteered the following statement to the officers: “I’ve got five plants.  They’re for my own use”.

(9)        The defender consented to a search of the subjects by the police officers.  

(10)      Upon searching the subjects, police officers discovered a cultivation of five cannabis plants, together with equipment for growing the same, in a small hall cupboard within the subjects, and a small quantity of herbal cannabis in the living room within the subjects.

(11)      The equipment used to cultivate the plants comprised a single 400 watt sodium lamp, a fan and a filter, with some reflective sheets attached to the ceiling of the hall cupboard to reflect the light on to the plants.

(12)      The defender had made no attempt to interfere with the electricity supply or meter serving the subjects.

(13)      The cannabis plants had been growing for approximately five weeks and were approximately one foot high. 

(14)      The normal gestation period for such plants is ten weeks.

(15)      The plants were of no material monetary value given their immaturity.

(16)      The defender was cultivating the plants for his personal use only.

(17)      The cultivation was the defender’s first and last attempt at producing a controlled drug.

(18)      No actual alarm, distress, annoyance or nuisance was caused to any person residing, visiting or engaged in lawful activity, in the vicinity of the subjects, by the defender’s conduct in producing the controlled drug.

(19)      On 24 May 2013, the defender was detained for questioning by police officers under section 23 of the Misuse of Drugs Act 1971.

(20)      The defender declined his right to have a solicitor present during police questioning; he made a full admission to police that he had produced the cannabis plants; and he was then arrested, cautioned, and released pending a report to the procurator fiscal.

(21)      On 27 September 2013, the defender tendered a plea of guilty, at the earliest opportunity, to a charge on summary complaint that, on 24 May 2013 at the subjects he produced a controlled drug, namely cannabis (a class B drug specified in part II of schedule 2 to the Misuse of Drugs Act 1971), in contravention of section 4(1) of the said Act, contrary to the Misuse of Drugs Act 1971, section 4(2)(a).

(22)      Upon conviction, the defender was ordered to pay a fine of £300. 

(23)      The defender paid the fine in full and on time.

(24)      With the exception of the foregoing conviction, the defender has no criminal convictions of any nature.

(25)      There are no pending criminal proceedings, or charges, against the defender.

(26)      Since 24 May 2013, the defender has not used and/or produced, or attempted to obtain or produce, cannabis or any other controlled drug.

(27)      Throughout the duration of the tenancy agreement, up to the date of the proof, no complaint has ever been made to the pursuer by any third party regarding the defender, his conduct, or his use or occupation of the subjects. 

(28)      Under exception of the circumstances relating to the defender’s conviction as aforesaid, throughout the duration of the tenancy agreement, up to the date of the proof, the defender has not breached any term of the tenancy agreement and the pursuer has had no cause to take issue with the defender regarding his conduct, or use or occupation of the subjects, or his compliance with the terms of the tenancy agreement.

(29)      On 20 December 2013, a notice of proceedings for recovery of possession was served upon the defender. Item 4 in the pursuer’s first inventory of productions (pages 26 & 27) is a true copy of the said notice.

(30)      Prior to raising the present proceedings, the pursuer did not consider, as a means of securing the cessation of the defender’s drug-related offending, any option, sanction or course of action short of termination of the tenancy and the removal of the defender from the subjects.

(31)      Throughout the period of approximately 15 years preceding the date of the proof, the defender has been in full-time employment as an electrician’s assistant, and remains so employed.

(32)      The defender has recently completed the first year of a three year adult traineeship as an electrician; he continues to undertake that traineeship; and his employment prospects upon completing that traineeship are good.

(33)      Clause 2.7 of the tenancy agreement, so far as material, states that the tenant must not use or allow the subjects to be used for illegal or immoral purposes including, but not limited to, dealing in controlled drugs.

(34)      Clause 3.1 of the tenancy agreement, so far as material, states that the tenant must not harass or act in an anti-social manner towards, or pursue a course of anti-social conduct against, any person in the neighbourhood or in the subjects (such persons to include residents, visitors, the pursuer’s employees, representatives, tradesmen, agents and contractors).

(35)      Clause 3.2 of the tenancy agreement, so far as material, states that, in particular, the tenant must not act in an anti-social manner towards, or pursue a course of anti-social conduct against, any person in the neighbourhood by using the subjects or allowing it to be used for illegal or immoral purposes or by using and/or selling illegal drugs.

(36)      Clause 3.4 of the tenancy agreement, so far as material, states that the word “anti-social” in the tenancy agreement means “causing or likely to cause injury, harm, alarm, distress, nuisance or annoyance to any person or causing damage to anyone’s property”.

(37)      The defender was provided with a copy of the tenancy agreement at the date of its execution.

(38)      If an order is granted for recovery of possession of the subjects, the defender will not be granted another tenancy from the pursuer in the future; he is likely to be categorised by Glasgow City Council as being intentionally homeless; he is likely to experience considerable difficulty in obtaining any other public sector tenancy; and he is unlikely to be able to afford comparable housing in the private sector.

 

FINDS IN FACT AND LAW:

(1)        The pursuer is a registered Scottish charity constituted under the Industrial and Provident Societies Act 1965.

(2)        The pursuer is a registered social landlord, in terms of the Housing (Scotland) Act 2001.

(3)        The defender has breached clause 2.7 of the Agreement by reason of his use of the subjects for a period of approximately five weeks preceding 24 May 2013 for an illegal purpose, namely, the production of a controlled drug, contrary to the Misuse of Drugs Act 1971, section 4(2)(a).

(4)        The defender has breached clause 3.1 of the Agreement by acting in an anti-social manner towards his neighbours, specifically by his cultivation of a controlled drug within the subjects.

(5)        The pursuer has a ground for recovery of possession of the subjects in terms of paragraph 1 of part 1 of schedule 2 to the Housing (Scotland) Act 2001, in respect that the defender has breached clauses 2.7, 3.1 and 3.2 of the tenancy agreement by reason of his conduct in producing a controlled drug in the subjects contrary to section 4(2)(a) of the Misuse of Drugs Act 1971.

(6)        The pursuer has a ground for recovery of possession of the subjects in terms of paragraph 2 of part 1 of schedule 2 to the Housing (Scotland) Act 2001, in respect that the defender has been convicted of using the subjects for an illegal purpose et separatim that the defender has been convicted of an offence punishable by imprisonment committed in the subjects (namely, in each case, the production of a controlled drug contrary to section 4(2)(a) of the Misuse of Drugs Act 1971).

(7)        The pursuer has a ground for recovery of possession of the subjects in terms of paragraph 7(1)(a) of part 1 of schedule 2 to the Housing (Scotland) Act 2011, in respect that the defender has acted in an anti-social manner in relation to persons residing in, visiting or otherwise engaged in lawful activity in the locality.

(8)        In terms of section 16(2)(a)(ii) of the Housing (Scotland) Act 2011, it is not reasonable to make an order for recovery of possession of the subjects;

 

THEREFORE, Grants decree of absolvitor in favour of the defender; reserves the issue of expenses meantime and appoints parties to be heard thereon on a date to be hereafter assigned.

 

 

                                                                                                            SHERIFF

NOTE:

Introduction

[1]        In this summary cause, the pursuer seeks an order for recovery of possession of heritable property.  The proceedings arise as a result of the defender’s conviction for the production of a controlled drug, namely cannabis, in the subjects, contrary to the Misuse of Drugs Act 1971, section 4(2)(a).

[2]        The pursuer seeks an order for recovery of possession of the subjects on the grounds that obligations under the tenancy (other than the obligation to pay rent) have been breached (Housing (Scotland) Act 2011 (“the 2001 Act”), schedule 2, part 1, paragraph 1); that the defender has been convicted of using the subjects for an illegal purpose and/or has been convicted of an offence punishable by imprisonment committed in the subjects (2001 Act, schedule 2, part 1, paragraph 2); and that the defender has acted in an anti-social manner in relation to a person residing in, visiting, or otherwise engaged in lawful activity in the locality (2001 Act, schedule 2, part 1, paragraph 7(1)(a)).

[3]        The defender admitted that the first two statutory grounds were established, but disputed that the third statutory ground was established.  In any event, the defender submitted that it was not reasonable for the court to make an order for recovery of possession on any of the statutory grounds founded upon by the pursuer, in terms of section 16(2)(a)(ii) of the 2001 Act.

 

 

 

Summary of evidence

[4]        The evidence was in short compass.  For the pursuer, evidence was heard from two witnesses: Louise Burns, a Housing Officer, and Joanna Simpson, a Neighbour Relations Officer, both employed by the pursuer.  The defender gave evidence on his own account.

[5]        The parties’ agents had also helpfully entered into a joint minute agreeing various essential facts. 

 

Evidence for the pursuer

Louise Burns

[6]        Louise Burns (35) is a housing officer employed by the pursuer. She has 11 years’ service. She spoke to her knowledge of the defender’s tenancy. She spoke to the terms of the tenancy agreement between the parties (Item 1, first inventory of productions for the pursuer). She referred to the pursuer’s “policy” that “any drug issue” arising in the course of the tenancy is to be dealt with through the court. She testified that the use of illegal drugs by tenants can cause distress to other tenants by, for example, causing smells on a landing or common close.

[7]        In cross-examination, she conceded that she was aware of no complaint ever having been made to the pursuer by any person about the pursuer, his conduct or occupation of the subjects at any point during the defender’s nine year tenancy.  She was aware of no record of any prior (or subsequent) breach of the tenancy by the defender.  She had not met with the defender since the discovery of illegal drugs in the house.  She had not been involved in considering or attempting any lesser form of intervention, short of eviction.  The decision to proceed with the present action was said to be in accordance with the pursuer’s policy (in relation to drugs) and was taken by the pursuer’s area manager.  She was unable to state what factors led to the conclusion in the present case that a court order for removal should be sought (beyond referring to the involvement of the police and to the pursuer’s “policy” which, she testified, “had to be adhered to”).  She was unable to state how the pursuer’s policy is publicised.  She did not know whether the controlled drugs found on the defender’s premises were for personal consumption or for supply to others.  She acknowledged that, if evicted, the defender would probably not be granted another tenancy from the pursuer in the future; that it was likely that he would be categorised as intentionally homeless by Glasgow City Council; and that he was likely to experience considerable difficulty in obtaining any other public sector tenancy.

 

Joanna Simpson

[8]        Joanna Simpson (49) is a neighbour relations officer employed by the pursuer.  She testified that she received information from the police that the defender had been charged with, and convicted of, an offence under the Misuse of Drugs Act 1971, section 4(2)(a) involving the production of a controlled drug, and that the offence occurred within his tenancy.  She also spoke to the terms of the tenancy agreement (item 1, pursuer’s first inventory of productions), specifically clause 2.7, 3.1 & 3.2; the terms of the summary complaint against the defender (item 2, pursuer’s first inventory of productions); the extract conviction report (item 3, pursuer’s first inventory of productions); a disclosure report received from Police Scotland (item 8, pursuer’s first inventory of productions, pages 33 to 40); and the notice of proceedings for recovery of possession dated 20 December 2013 served upon the defender (item 4, pursuer’s first inventory) and related execution of service (item 5). 

[9]        She stated that the pursuer classifies such conduct as “a serious breach” of the tenancy agreement, specifically as a “category A” breach.  Category A was said to include “drug dealing and serious assault”; category B included “anti-social behaviour, loud noise, etc.,”; and category C included “keeping pigeons, not cutting the grass, having untidy gardens”.  She explained that as the present case “involved drugs” it was viewed as a serious offence.  She testified that the pursuer “considers all drug offences to be anti-social behaviour”.  Asked to explain why the pursuer sought eviction in the present case, she stated:

“Because of the quantity [of drugs found on the defender’s premises] it is classed as a serious breach [of the tenancy]; it could have an effect on other tenants who could smell it; we’ve had problems in the area; and it could attract others”.

 

She confirmed that the defender’s conduct came to the pursuer’s attention not through any neighbour complaint but by virtue of a report from the police. The decision to pursue the present action was taken by the pursuer’s area housing manager. The pursuer was said to have a responsibility to ensure that its houses are not used for conduct of this nature. She testified that drug users may be attracted by the smell of cannabis from the premises and that neighbours may be distressed if they detect the smell of cannabis in an adjoining house

[10]      In cross-examination, the witness was challenged to explain why the defender’s conduct on this occasion was classed as a serious breach of the tenancy.  She was unable to provide any information regarding the quantity or value of drugs involved beyond what was stated in the police disclosure report (item 8, pursuer’s first inventory, page 39).  She attached weight to the nature of the offence charged on the complaint, namely production of a controlled drug.  She had no information to dispute the assertion that the drugs found were for personal use only.

[11]      The witness testified that the pursuer would always seek eviction of a tenant in a “category A” case; and that “any drugs activity” is classed by the pursuer as a “serious breach” of the tenancy, resulting in court action to evict.  The pursuer would not have considered any lesser form of intervention for a conviction of this nature. While “serious assaults” are classed as “category A” breaches, a more minor assault would be dealt with as a “category B” breach.

 

Evidence for the defender

Mark Stuart

[12]      Mark Stuart (41) has lived alone in the subjects for nine years.  He is employed as an electrician’s assistant. He has also just completed the first year of a three year adult traineeship leading to qualification as an electrician. He spoke to his employment history and prospects.  He has no other criminal convictions and there are no pending criminal proceedings or charges against him.

[13]      He described the circumstances surrounding the offence.  He had smoked cannabis quite regularly up until his arrest on 24 May 2013.  He had decided he wanted no further involvement with drug dealers.  He decided to produce a small amount of cannabis for his own use.  He set up the cultivation in a small hall cupboard in the house, not much bigger than the witness box.  No alterations were made to the house or its services.  He had been growing the plants for about five weeks. On one occasion he forgot to put the filter fan on before leaving for work.  As a result, the police detected a smell of cannabis emanating from the subjects. He cooperated fully with the police and the court.  He had not used or produced any controlled drug since the date of his arrest. 

[14]      He accepted the terms of the complaint, extract conviction and tenancy agreement.  He claimed to be unaware of the “zero tolerance” policy operated by the pursuer in respect of drug-related offences.  After the offence, he was invited to a meeting with the pursuer. He was told that he would be evicted.  He had never previously had any issues with the pursuer or his neighbours. He had never previously breached his tenancy agreement. He has no alternative accommodation to go to, if evicted.  He was unlikely to obtain any other public sector tenancy. He would find it difficult to afford a private lease.

[15]      In cross-examination, he acknowledged that the idea to grow his own cannabis had come to him in 2012, that he had researched the method of production and had made a conscious decision to enter upon the course of action. 

 

Other evidence

[16]      The parties lodged a joint minute (number 6 of process) agreeing various factual issues.

 

Closing submissions for the pursuer

[17]      For the pursuer, I was invited to conclude that grounds for the recovery of possession of the subjects had been established and that it was reasonable to grant such an order. 

[18]      I was invited to conclude that the defender’s conduct constituted a deliberate breach of the tenancy agreement; that he knew or ought to have known of his obligations under the agreement; that he had chosen to disregard those obligations; that there was a large amount of planning involved in the criminal offence; that his criminality had only stopped when he was caught by the police; that there was a drug problem in the area; that the defender has sought to diminish his responsibility by seeking to argue that this was a small scale cultivation for his own use; that he was guilty of a serious offence; and that he had a sufficient income to seek alternative accommodation in the private sector. 

[19]      Reference was made to paragraphs 1, 2 & 7 of part 1 to schedule 2 of the 2001 Act and to the factors in section 16(3) of the 2001 Act.

 

 

Closing submissions for the defender

[20]      For the defender, I was invited to dismiss the action. It was not disputed that the statutory grounds in paragraphs 1 & 2, part 1, schedule 2 of the 2001 Act were established.  However, it was submitted that the ground in paragraph 7(1)(a) was not established, in that the defender’s conduct, though criminal, did not satisfy the definition of “anti-social” in paragraph 7(2) of schedule 2 to the 2001 Act.  In any event, it was submitted that it was not reasonable for an order for recovery of possession to be made having regard to the factors listed in section 16(3)(a), (c) & (d) of the 2001 Act (namely the nature of the defender’s criminal conduct, the absence of any relevant effect upon others, and the actions of the landlord in applying an unpublished “zero tolerance” policy without flexibility).

[21]      Further, with reference to the factors listed in City of Glasgow Council v Lockhart 1997 Housing LR 99 (namely public interest, the defender’s knowledge (or ignorance) of the likely consequences of his actions, the gravity of the offence, and the consequences of an eviction order), I was invited to conclude that it would not be reasonable to grant the order for recovery of possession. 

[22]      Reference was also made to Glasgow City Council v Cavanagh 1999 Housing LR 7, Glasgow Housing Association Ltd v Hetherington 2009 SLT (Sh Ct) 64 and Glasgow Housing Association Ltd v O’Neill, 2 November 2012, Glasgow Sheriff Court, unreported.

[23]      In the alternative, I was invited to follow the approach of the sheriff in Hetherington, supra and O’Neill, supra to adjourn the proceedings, for such period as I considered fit, to give the defender an opportunity to be of good behaviour.

 

Discussion

[24]      Notwithstanding anything in the tenancy agreement, a Scottish secure tenancy of a house cannot be brought to an end except by one of six mechanisms prescribed by statute (2001 Act, section 12(1)). 

[25]      One such mechanism is a court order in summary cause proceedings for recovery of possession of the house (2001 Act, sections 14 & 16). 

[26]      Schedule 2 to the 2001 Act lists the various grounds that would entitle the landlord to seek to recover possession of the house in such proceedings.  Unless the court exercises its discretion to adjourn  the proceedings, the court must make an order for recovery of possession (i) if the landlord has established a statutory ground for recovery of possession under paragraphs 1 to 7 of schedule 2 to the 2001 Act; (ii) if that statutory ground is specified in a pre-action notice served in the prescribed form in accordance with section 14 of the 2001 Act; and (iii) if it is “reasonable to make the order” (2001 Act, section 16(2)(a)).

[27]      When determining whether it is reasonable to make the order, the court is to have regard, in particular, to certain specified criteria, namely the nature, frequency and duration of the conduct relied upon by the landlord; the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant; the effect which that conduct has had, is having, and is likely to have on any person other the tenant; and any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct (section 16(3), 2001 Act).  These criteria are not exhaustive. 

[28]      In this action, the pursuer, as landlord, seeks to recover possession of the subjects on three of the statutory grounds.

[29]      These grounds are (i) that the defender is in breach of obligations under the tenancy agreement (other than the obligation to pay rent) (2001 Act, schedule 2, part 1, paragraph 1); (ii) that the defender has been convicted of using the house for an illegal purpose et separatim of an offence punishable by imprisonment committed in the house (2001 Act, schedule 2, part 1, paragraphs 2(a) & (b)); and (iii) and that the defender has acted in an anti-social manner (2001 Act, schedule 2, part 1, paragraph 7(1)(a)). 

[30]      The factual basis of each proposed ground for recovery of possession is the same, namely that in or around May 2013 the defender cultivated within the tenancy a class B controlled drug (cannabis); that, in relation to that conduct, he was subsequently convicted on summary complaint of an offence under the Misuse of Drugs Act 1971, section 4(2)(a); and that he was ordered to pay a fine of £300 in respect of that offence. These facts are admitted.

[31]      The defender conceded that the first two statutory grounds for recovery of possession were established, namely the grounds specified in paragraphs 1 and 2(a) & (b) of schedule 2 to the 2001 Act (being the alleged contractual breaches and the alleged conviction for a relevant offence, respectively). However, he disputed that the third statutory ground was established, namely the ground specified in paragraph 7(1)(a) of schedule 2 to the 2001 Act (being the alleged anti-social conduct). In any event, in each case, the defender also submitted that it was not reasonable to grant decree.

 

Alleged anti-social conduct (2001 Act, schedule 2, paragraph 7(1)(a))

[32]      At the outset it may be convenient to address whether the disputed third statutory ground founded upon by the pursuer is established, namely paragraph 7(1)(a) in schedule 2 to the 2011 Act.

[33]      The defender’s solicitor submitted that this ground was not established because there was no evidence that any neighbour, visitor or attending police officer was alarmed, distressed, annoyed, or was caused any nuisance by the defender’s conduct.  

[34]      In my judgment, that analysis is not correct.

[35]      Broadly speaking, this statutory ground deals with anti-social conduct by a tenant or other person living in or visiting the house.  The application of the ground is circumscribed to some extent.  It applies only where the tenant has “acted in an anti-social manner in relation to a person residing in, visiting or otherwise engaged in lawful activity in the locality”.  The use of the conjunctive phrase “in relation to” connotes a wider relationship between those specified persons and the alleged anti-social conduct than the use of words such as “to”, “towards” or “against”.  The use of the phrase “in relation to” means that the conduct complained of must have some relationship to, or connection with, one of the specified persons or group of persons (namely “a person residing in, visiting or otherwise engaged in lawful activity in the locality”), but it need not be targeted at any particular person.

[36]      To take an obvious example, if a tenant acts in an anti-social manner, however reprehensible, in an entirely different part of the city from the tenant’s house, or otherwise outwith the “locality” of the house, and that conduct does not otherwise have any relationship to, or connection with, any person who lives, visits or engages in lawful activity in the locality of the house, then ground 7(1)(a) would not apply.      Conversely, if, for example, the conduct complained of is specifically directed at one of the specified persons (or group of persons) (that is, a person residing in, visiting or otherwise engaged in lawful activity in the locality of the house); or if the conduct, though indiscriminate, in the sense of not being directed at anyone in particular, is likely to cause alarm, distress, nuisance or annoyance to such a person (or persons), then, in either such case, the conduct would fall within the ambit of the statutory ground. The statutory ground would be established whether or not the specified person (or group of persons) “in relation to” whom the conduct is carried on can be individually identified; whether or not alarm, distress, nuisance or annoyance was intended by the tenant; and whether or not alarm, distress, nuisance or annoyance actually occurs.

[37]      This latter conclusion arises from the wide definition of “anti-social”. For the purposes of interpreting paragraph 7(1) of schedule 2 to the 2001 Act, “anti-social” is defined as meaning “causing or likely to cause alarm, distress, nuisance or annoyance” (2001 Act, schedule 2, paragraph 7(2)).  It is implicit in this definition that an objective test is to apply. The ground is established if the conduct complained of is “likely to cause” alarm, distress, nuisance or annoyance to a person (or persons) residing in, visiting or otherwise engaged in lawful activity in the locality.  It is necessarily implied that the specified person is a “reasonable” person, being someone of normal sensitivity, fortitude, temperament and tolerance.  If the position were otherwise, unobjectionable conduct would be at risk of being branded as “anti-social” merely because an unusually sensitive or intolerant neighbour or visitor is alarmed, distressed or annoyed by it. It follows, therefore, that the conduct complained of is to be tested by reference to a hypothetical “reasonable” person. If such a hypothetical “reasonable” person (residing in, visiting or otherwise engaged in lawful activity in the locality) is likely to be caused alarm, distress, nuisance or annoyance by the behaviour complained of then it follows, on the objective test, that the ground is established.  It is no answer that the conduct complained causes no actual fear, alarm, nuisance or annoyance to a real person living in, visiting or working in the locality. If such evidence was required, landlords would be faced with the impracticable burden of having to prove the character, fortitude and reactions (or likely reactions) of persons actually present within the locality of the house on any given occasion. Aside from being impracticable, such an approach would be liable to produce erratic and inconsistent results given the infinite variation in human nature.  Conduct characterised as anti-social in one tenement (or on one occasion) may be found to be unobjectionable in an adjoining tenement (or on another occasion), depending merely upon the fluctuating disposition of the resident or visiting population. In my judgment, given the serious consequences arising from a finding of anti-social conduct, such random outcomes and unpredictability cannot have been intended by Parliament. 

[38]      In summary, the defender’s conduct is to be judged objectively, by determining whether it is likely to cause alarm, distress, nuisance or annoyance to a hypothetical “reasonable” person (being a person of normal sensitivity, fortitude, temperament and tolerance) residing in, visiting or otherwise engaged in lawful activity in the locality. 

[39]      Applying that objective test, I conclude that the conduct of the defender in the present case (in growing an illegal cultivation of cannabis within his flat, in a multi-storey residential block, a fortiori from which a strong smell of cannabis has emanated into the communal hallway) is likely to cause, at least, annoyance and nuisance, and possibly also distress, to a hypothetical reasonable person residing in, visiting or otherwise engaged in lawful activity in the locality of this house. Such conduct is illegal; it carries with it the risk of attracting other drug users; it is associated with criminality, disorder, social blight, and danger to health; it sets a poor example of acceptable social behaviour to children, and others, within the locality; and it may constitute an enticement or encouragement to children, and others, in the locality to become involved in illicit drug cultivation or use.  For these reasons, in my judgment the first component element of the statutory ground for recovery of possession in paragraph 7(1)(a) of schedule 2 to the 2001 Act is established.

[40]      The defender did not seek to challenge the second component element of this statutory ground (namely that it would not be reasonable for the landlord to be required to re-house the defender elsewhere).  Accordingly, I concluded that this second component element of the ground was also satisfied.

 

Service of pre-action notice

[41]      It was not in dispute that the three statutory grounds founded upon by the pursuer were specified in a pre-action notice served in the prescribed form in accordance with section 14 of the 2001 Act. A copy of the notice is also lodged in process. Prima facie it bears to be in compliance with the statutory requirements.

[42]      Accordingly, I concluded that a pre-action notice in the prescribed form was duly served.

 

Is it reasonable to grant decree?

[43]      Lastly, notwithstanding that grounds for recovery of possession of the subjects are established, and that a pre-action notice has been duly served, it is incumbent upon me to determine whether it is reasonable to grant decree against the defender.

[44]      In my judgment, in the particular circumstances of this case, it is not reasonable to make an order for recovery of possession of the subjects.  I reached that conclusion for the following reasons. 

 

The nature, frequency and duration of the conduct in question

[45]      Section 16(3)(a)(i) requires that the court should have regard, in particular, to the nature, frequency and duration of the conduct that is taken into account by the court in concluding that the ground is established. 

[46]      Addressing these factors in reverse order, in the present case the defender’s conviction relates to criminal conduct confined to a single day (namely, 24 May 2013). That said, the undisputed evidence, which I accepted, was to the effect that the defender had been cultivating the controlled drug for a period of approximately five weeks prior to his arrest.  Either way, the duration of the conduct in question is relatively limited (when viewed in the context of the nine year duration of the defender’s tenancy).

[47]      Likewise, the conduct was limited in frequency.  This was the defender’s first and only attempt to cultivate cannabis in the house.  It was persisted in for a period not exceeding approximately five weeks, whereupon it ceased and was not repeated.  The emission of a smell from the cultivation occurred on only one occasion.  There was no evidence of any other complaints of, or incidents involving, similar conduct by the defender, before or since. 

[48]      Lastly, the court is enjoined to have regard to the nature of the conduct underlying the breach of contract (paragraph 1, schedule 2, 2011 Act), the conviction (paragraph 2, schedule 2) and the anti-social conduct (paragraph 7, schedule 2). 

[49]      Undoubtedly, the defender’s conduct in cultivating a controlled drug is illegal, reprehensible and anti-social. However, analysing the conduct, firstly, as a contractual breach (for the purposes of paragraph 1), in my judgment it is not properly regarded as a material breach of contract. Breaches of contract vary in degrees of materiality. Only a material breach of contract will entitle the innocent party to treat the contract as repudiated and to rescind the contract.  The materiality of a breach will involve consideration of, among other things (i) the materiality of the term of the contract (including whether the parties have stipulated that the term is material) (Standard Life Assurance Co v Weems (1884) 11 R (HL) 48; Dawsons v Bonnin 1922 SC (HL) 156); (ii) whether the breach goes to the “root and essence” of the contract (Wade v Waldon 1990 SC 571); (iii) whether the breach makes further performance of the contract impossible; (iv) whether the breach may be said to comprise a total failure of performance by the defaulting party; (v) whether the breach has the effect of depriving the innocent party of substantially the whole benefit which was intended to be provided under the contract; and (vi) whether the breach may be said to be remediable.

[50]      In the present case, the parties have not explicitly agreed in the tenancy agreement that the tenant’s obligations not to use the house for an illegal purpose (clause 2.7) or to act in an anti-social manner (clause 3.1) are to constitute material terms of the contract, breach of which would justify rescission. Of course, such express stipulation would not, of itself, determine whether or not it is “reasonable” for a court to grant decree in any particular case, but the absence of such stipulation tends to illustrate that, in the context of this particular contract, the express obligations founded upon have no higher status, in the context of the tenancy agreement as a whole, than, for example, the tenant’s obligations not to keep a hamster in the house, without the landlord’s prior permission (clause 2.6); or not to store a bicycle in the common close (clause 2.12); or to place recyclable rubbish in the proper bin (clause 2.14).  Each of these obligations, on the face of the tenancy agreement, has equal status; and none are stipulated, explicitly or impliedly, to constitute material terms justifying rescission.  Further, the defender’s breach cannot be said to go to the “root and essence” of the tenancy agreement. The root and essence of the contract is the provision of housing of a specified standard for a specified rental. From a contractual perspective, the obligation in question is ancillary. In a similar vein, the breach cannot be said to represent a total failure of performance on the part of the defender. Lastly, given the relatively minor and isolated nature of the breach, and its limited effect, it cannot be said to prevent further performance of the parties’ obligations under the contract, or to be irremediable. 

[51]      Secondly, if the behaviour is analysed as a criminal offence or as anti-social conduct (for the purposes, respectively, of grounds 2 & 7 of schedule 2), in my judgment the conduct is properly regarded as falling at the lower end of the scale of criminality (and of anti-social conduct). Some crimes are more or less grave due to circumstances peculiar to their type or character, or to the manner of their commission, or to the victim, or to the offender.  An armed robbery is more grave than a petty shoplifting, though both are crimes of dishonesty. Similarly, not all drug-related offences are the same. They vary in gravity.  This is reflected in the legislative classification of drug-related offences, the varying maximum penalties prescribed by statute, and in sentencing practice generally.  Offences involving the supply (or intended supply) of controlled drugs may generally be regarded as more grave than an offence involving mere possession of a controlled drug.  Within that spectrum, an infinite variety of circumstances may aggravate or mitigate the drug-related offence including, for example, the class of drug; the value or quantity of the drug involved; the offender’s inferred intention (such as commercial or social supply or personal use only); the offender’s degree of culpability, planning or involvement; and a whole range of other circumstances peculiar to the offence and the offender.  In short, it cannot be reasonable to treat all drug-related offences, or all drug offenders, in the same way.

[52]      Yet, according to the pursuer’s own evidence in this case, that is precisely how the pursuer has proceeded in the present case as a matter of internal policy. According to the pursuer’s two witnesses, the pursuer operates a “zero tolerance” approach towards drug offences. All drug-related offences are categorised by the pursuer as “category A” breaches, resulting in court action for eviction.  That policy may be understandable as an administrative convenience.  It may be admirable as a social policy objective. However, any such policy must be exercised with discretion, having regard to the particular circumstances and merits of each individual case (Glasgow City Council v Cavanagh [1999] Hous. L.R.7). Besides, in exercising its judicial function, the court cannot grant decree unless “it is reasonable to make the order”, a phrase that necessarily enjoins the court to consider the individual merits of each case.

[53]      In my judgment, the offence in the present case is, in nature, properly regarded as being at the lower end of the scale of criminality. Likewise, the underlying misconduct is, in nature, properly regarded as being at the lower end of the scale of anti-social behaviour. It involved a single, small-scale cultivation by a first offender of a class B drug, of no material quantity or value, for personal use only, prosecuted on summary complaint and resulting in a modest monetary fine. The criminal conduct was limited in duration; it was isolated in frequency; it caused no actual alarm, distress, annoyance or nuisance; and there were no other aggravating features (such as, for example, interference with the electricity meter or supply; the presence of children or other innocent parties in the house; or non-cooperation with the police, court or landlord). 

 

The extent to which the conduct is attributable to a third party

[54]      Section 16(3)(b) requires that the court should have regard, in particular, to the extent to which the conduct complained of is or was conduct of persons other than the tenant. 

[55]      In the present case, the conduct is solely attributable to the defender. He must bear full responsibility for it.

 

The effect the conduct had, or is having, and is likely to have, on others

[56]      Section 16(3)(c) requires that the court should have regard, in particular, to the effect which the conduct has had, is having, and is likely to have on any person other than the tenant.

[57]      There was no evidence that the defender’s conduct had any effect upon anyone (other than the police officers who, on one occasion, detected a strong smell of cannabis emanating from the defender’s house and acted in accordance with their duties).

[58]      Further, since, according to the undisputed evidence, the defender immediately desisted thereafter from further production and use of controlled drugs, and such desistance has endured now for over a year, it follows, absent any evidence to the contrary, that his conduct in around May 2013 is presently having, and is likely to have, no effect whatsoever on any person other the defender himself.

 

 

 

Action taken by the landlord to secure cessation of the conduct

[59]      Section 16(3)(d) requires that the court should have regard, in particular, to any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of the conduct in question.

[60]      At first blush, this provision might be said to be more readily applicable to instances of continuing or previously repeated anti-social behaviour (South Lanarkshire Council v Carol Gillespie, Hamilton Sheriff Court, 17 April 2012, Sheriff Principal B.A. Lockhart, unreported).  However, in my judgment the language is sufficiently broad to include any instance of contractual breach, criminal conduct or anti-social behaviour, where a risk of repetition exists; with the section being aimed at exploring what steps have been taken by the landlord to reduce or eliminate that risk (and thereby secure the cessation of the offending conduct).

[61]      In the present case, on the undisputed evidence, no steps were taken by the landlord, before raising the proceedings, with a view to ascertaining the nature of the risk of repetition, still less to reduce or eliminate that risk (and thereby secure cessation of the offending conduct).  There was no consultation with the defender or informed consideration of his individual circumstances (for example, to determine whether there was an ongoing addiction issue; whether this was an isolated occurrence; what steps had been, or would be, taken by the tenant to secure cessation); there was no evidence of the existence or application of any system for the issuing of a formal written warning, caution or the like, with clear specified sanctions in the event of default; and there was no evidence of the implementation of any enhanced regime for the inspection of the house, over a monitoring period of reasonable duration, to ensure the cessation of further illegal drug cultivation or use (in exercise of the broad powers of entry and inspection under clause 5.11 of the tenancy agreement).  Instead, in accordance with its unpublicised internal policy, apparently with no consideration of the defender’s personal circumstances, the pursuer merely met with the defender to notify him that the present proceedings would be instituted for recovery of possession of the house.

 

The interests of the neighbourhood and the wider public interest

[62]      In addition to the factors listed in section 16 of the 2001 Act, to which particular regard must be had, I also considered the interests of the neighbourhood and the wider public interest in deciding whether it is reasonable to grant decree. 

[63]      While there was, in this case, no evidence of a specific drug problem in the immediate vicinity of this house, I take it as being within judicial knowledge that illegal drug use, drug production and drug dealing is a serious problem in the city (including in the area in which this multi-storey block is situated); that such drug use, production and dealing can have a serious detrimental impact upon the health and well-being of users, neighbouring residents, and the physical and social environment generally; that such drug use, production and dealing is associated with an increased incidence of criminality, disorder, danger to health, social breakdown and social blight; it sets a poor example of acceptable behaviour to children, and others, within the locality; and it may constitute an enticement or encouragement to children, and others, in the locality to become involved in drug use and drug-related offending. I took these factors into account in the present case.

 

The tenant’s personal circumstances

[64]      Further, I also considered the defender’s personal circumstances in deciding whether it is reasonable to grant decree.

[65]      In the present case, the defender, a 44 year old man, had no previous criminal record. He had lived alone in the house for over nine years as at the date of the proof (July 2014), with an otherwise unblemished tenancy record, no previous complaints having been made against him by the landlord or any neighbour or third party. Since the date of the offence (in May 2013), no other criminal charges have been directed against him; no complaints have been made by the landlord, or any neighbour or any third party, regarding his conduct or tenancy; and he has desisted from all illegal drug use or other offending. He pled guilty to the present offence at the first opportunity. He has a lengthy and consistent work record, having been employed as an assistant electrician for 15 years. He has just completed the first year of a three year adult traineeship with a reputable company, with a view to obtaining formal qualification as an electrician. If an order is granted for recovery of possession of the subjects, the defender will not be granted another tenancy from the pursuer in the future; he is likely to be categorised by Glasgow City Council as being intentionally homeless; he is likely to experience considerable difficulty in obtaining any other public sector tenancy; and he is unlikely to be able to afford comparable housing in the private sector.

 

Other decisions

[66]      Lastly, for completeness, I should record that, though I was not referred to them, I was aware of and considered a number of other cases involving broadly similar issues, specifically Fife Council v Gary Buchan, Kirkcaldy Sheriff Court, 11 June 2008, Sheriff W. Holligan, unreported; South Lanarkshire Council v Stephen Nugent, 19 August 2008, Hamilton Sheriff Court, Sheriff Principal B.A. Lockhart, unreported; South Lanarkshire Council v Carol Gillespie, Hamilton Sheriff Court, 17 April 2012, Sheriff Principal B.A. Lockhart, unreported; The Aberdeenshire Council v Bryn Evans, Banff Sheriff Court, 18 July 2013, Sheriff P. Mann, unreported; and South Lanarkshire Council v Edward George, 23 July 2013, Hamilton Sheriff Court, Sheriff Principal B.A. Lockhart, unreported.

[67]      Each of these cases turns upon its facts, and none are binding upon me, though I accorded them due respect and persuasive authority.

[68]      The cases of Gillespie, Nugent and Evans involved substantially more serious offences and misconduct. The case of George is perhaps the most similar to the present case involving a slightly amateurish attempt by the tenant in that case to cultivate cannabis for his personal use, for which he was fined £200. The case primarily involves a consideration, on appeal, of the propriety of the sheriff’s decision to grant decree by default against the tenant due to his failure to appear at a proof diet. To that extent, the forceful comments of the Sheriff Principal in relation to the substantive merits of the tenant’s defence under section 16(2)(a) (i.e. reasonableness) are, strictly, obiter.  In any event, the decision is distinguishable on the basis that it does not disclose any detailed findings on the tenant’s personal circumstances (understandably, perhaps, given that he failed to appear at proof).

 

Conclusion    

[69]      Taking account of the foregoing, in my judgment it is not reasonable to grant decree against the defender in the present case.

[70]      In summary, I reached that conclusion for the following reasons: (i) the defender’s criminality, breach of contract and anti-social conduct, on the basis of which recovery of possession is sought, were, in nature, comparatively minor, involving a single, small-scale cultivation of a class B drug, of no material quantity or value, for personal use only, prosecuted on summary complaint, and resulting in a modest fine following a guilty plea at the earliest opportunity; (ii)  the conduct was isolated in frequency and limited in duration; (iii) no steps had been taken by the pursuer, prior to commencement of the proceedings, to secure the cessation of the offending conduct; (iv) there were no material aggravating features (for example, the defender’s conduct had caused no actual alarm, distress, nuisance or annoyance to any resident or visitor in the locality; there were no children or other innocent parties in the house; and there had been no attempt to interfere with the electricity meter or supply for the purposes of the cultivation);  and (v) the defender’s personal circumstances, taken cumulatively, were mitigating in nature, in that his use and production of controlled drugs had ceased immediately upon his arrest; he had a lengthy and otherwise unblemished record as tenant of the subjects, both before and since the date of the conduct in question; he had no previous criminal convictions; there had been no subsequent criminal offending by him (or any allegation of breach of the tenancy or anti-social conduct) in the 14 month period since the conduct in question; he had cooperated with the police throughout; and, significantly, the defender had a lengthy, consistent work record, with a tangible effort having been made by him (by virtue of his partial completion of an adult traineeship) to further improve himself.

[71]      While there is a public interest in taking a firm approach to drug-related offences, there is also a public interest in not evicting a tenant whose contractual breach and misconduct may properly be regarded as isolated, comparatively minor, and unlikely to be repeated; whose personal circumstances indicate that the individual is otherwise able and willing to adhere to the terms of the tenancy agreement and to make a positive contribution to society; and for whom, viewed in the round, the sanction and consequences of eviction are disproportionate to the gravity of the misconduct upon which the proceedings are based.

[72]      Accordingly, I shall assoilzie the defender. I shall put the case out for a further hearing on the issue of expenses on a date to be hereafter assigned.