Short term lets - licensing scheme part 1: guidance for hosts and operators

4. How your licensing application will be determined

(a) Relevant considerations

4.1. Your licensing authority will look at the following information in assessing your application:

• whether the people named on your application are fit and proper persons to be involved in providing short-term lets
• evidence that you are compliant (or can secure compliance) with the mandatory conditions
• whether any additional conditions would be attached to your licence
• any competent objections received

(b) Confirming the facts of your application

4.2. As part of considering your application, your licensing authority will want to check that you and your premises are compliant with the mandatory conditions. They might do this through one or a combination of:

• a visit to your premises
• asking to see relevant documentation
• asking you to declare that you have met the conditions

4.3. Your licensing authority will check some information with Police Scotland and the Scottish Fire and Rescue Service.

4.4. The Scottish Government encourages licensing authorities to take a risk-based approach to assessing applications for a licence. Premises may be visited as part of the application process but this may not always be the case.

(c) Notifying neighbours

4.5. You must notify your neighbours about your application for a new licence, and again when you apply to renew a licence. In order to comply with this requirement you will need to display a site notice at or near your premises, so it can be conveniently read by the public.

4.6. The site notice must state the following:

• an application has been made for a licence
• various details including the type of licence applied for, name and address of the applicant and any agents, address of the premises
• details on how to make objections and representations

4.7. The site notice should be displayed for 21 days from the date your licence application was made to your licensing authority.

4.8. Once your site notice has been displayed for 21 days you will be required to send a certificate to your licensing authority confirming you have complied. You may wish to consider submitting evidence to demonstrate compliance, such as a time stamped photograph of the site notice in-situ.

(d) Handling objections

4.9. Objections may be made by neighbours or any other person who wants to raise an objection.

4.10. The primary purpose of the licensing scheme is to ensure short-term lets are safe and take account of local needs and circumstances. Competent grounds for objection to a licensing application may include but are not limited to:

• concerns that the application is inaccurate or misleading
• concerns about the safety of guests, neighbours or others
• concerns about noise or nuisance
• concerns that any actions by or failures to act by the applicant or any manager they have appointed demonstrate that they may not be a fit and proper person to hold a licence

4.11. Invalid grounds for objection could include not liking you or not liking short-term lets in general.

4.12. Where the objection does not relate to the grounds of refusal for licensing applications, these can be disregarded by a licensing authority.

4.13. Your licensing authority will consider any objection which:

• is made in writing
• specifies the grounds of the objection, or nature of the representation
• specifies the name and address of the person making it
• is signed by the objector, or on their behalf

4.14. Objections should be made within 28 days of public notice of the application being given, however, objections may be considered after this date if the licensing authority consider there is sufficient reason for doing so. Your licensing authority will send you a copy of any relevant objections and may do this before they are published. You will have the chance to respond to any objections, either in writing or in person.

4.15. Your licensing authority will decide whether or not to hold a hearing in respect of an application. It does not have to do so and you cannot challenge its decision to hold a hearing or not, although you can appeal their decision on your application. If the authority does not hold a hearing, they will give you at least seven days to give your views in writing on all the objections received. It is for the licensing authority to determine whether any objection received has a material impact upon the licensing application.

(e) The licensing committee

4.16. Where the licensing authority decides to hold a hearing this may be authority officials with delegated power to make decisions about licensing applications or a meeting of the licensing committee. The licensing committee comprises a number of local councillors who consider licensing applications for a range of purposes such as alcohol and taxis, as well as short-term lets. The licensing committee is likely to consider many licensing applications in one sitting.

4.17. If your application is considered at a hearing you, and any person who has made an objection, will be given the opportunity to be heard. Your licensing authority will give you, and any objectors, at least 14 days’ notice of the hearing date. The meeting may be held in public, so other members of the public can observe the proceedings.

4.18. Objectors will be invited to speak to their objections, and you will be invited to state why your application should be granted.

4.19. You may be asked questions, ahead of the authority deciding whether or not to grant your application. The decision and voting may take place in public or private.

(f) Determining your application

4.20. Your licensing authority must grant your application unless there are grounds to refuse it. Possible grounds for refusing your application may include:

• anybody named on your application is disqualified from having a short-term lets licence
• anybody named on your application is not a fit and proper person
• some other person is benefiting from the activity who would be refused a licence if they made the application themselves
• the premises are not suitable or convenient having regard to:

a) the location, character or condition of the premises

b) the nature and extent of the proposed activity

c) the kind of persons likely to be in the premises

d) the possibility of undue public nuisance

e) public order or public safety

f) there is other good reason for refusing the application (this cannot be applied in a blanket fashion without considering the merits of a particular application)

g) you cannot demonstrate, or secure, compliance of the mandatory licence conditions

h) you cannot secure compliance with any other conditions the licensing authority seek to apply in respect of your application

(g) Timescales for determination

4.21. Licensing authorities have 9 months to determine applications beginning with the date on which the application was made.

4.22. If your licensing authority fails to determine your application within the timescales set out above, your licence will be deemed to have been granted, unless the licensing authority has been granted an extension by the court. If your licence were deemed to be granted, it would be valid for one year.

(h) Your rights of appeal

4.23. You can appeal against your licensing authority’s decision by summary application to the sheriff. A Summary Application is made by initial writ and a template can be accessed here (Form 1). You may wish to familiarise yourself with the relevant Summary Application Rules. You may also wish to seek advice and can contact your local Citizens Advice Bureau or you can get contact details for solicitors from the Law Society of Scotland. Sheriff clerk staff cannot give you legal advice in respect of your appeal.

4.24. You have to appeal within 28 days from the date of the licensing authority’s decision, unless you have a good reason for being late. The sheriff can decide whether to consider a late application for an appeal.

4.25. The sheriff may uphold your appeal only if he considers that the licensing authority, in arriving at their decision:

• erred in law
• based their decision on any incorrect material fact
• acted contrary to natural justice
• exercised their discretion in an unreasonable manner

4.26. If the sheriff upholds your appeal, the sheriff may either ask the licensing authority to reconsider their decision or change the decision of the licensing authority.

How much does an appeal cost?

4.27. You should consider that you may have solicitor costs as well as court fees for lodging the initial writ. However, the sheriff may make an order for one party to pay the other party’s costs. For example, the licensing authority may have to pay your costs in making the appeal if the sheriff finds that they acted unreasonably in making their decision. You may be entitled to an exemption from paying court fees depending on your circumstances.

(i) Time limit on reapplying

4.28. If your application for a licence is refused, you cannot reapply for a licence within one year of that decision, unless there has been a material change in your circumstances since then. You may be asked by your licensing authority to provide a covering letter setting out any material changes that have occurred alongside any new application made within one year of the decision to refuse your licence.

(j) How your data will be managed

4.29. Licensing authorities are responsible for ensuring compliance with UK General Data Protection Regulations, as data controllers and for the storage, handling and disposal of all data related to licence applications they receive.

4.30. Certain personal data will be shared, for specific purposes, as follows:

• within and between local authorities, Scottish Fire and Rescue Service and Police Scotland as part of the notification process in order to carry out background checks
• published in public registers of licences (by each licensing authority)
• submissions to Scottish Government, so that data on licences from each local authority can be amalgamated at a national level, and to review against policy objectives. No personal data will be published in Scottish Government reports on short-term letting activity

4.31. Further details on data processing can be found in the Data Protection Impact Assessment (DPIA) . Information about the processing of personal data is set out section C of the DPIA.

4.32. The following personal information will be published in the register:

• Names and registered offices (where an application is made on behalf of a company / corporate body only)
• Names of any day-to-day managers
• The address of your premises (including postcode and Unique Reference Number (URN))

4.33. It should be noted that the name of individual applicants/ licence-holders will not appear on a register unless they are part of a company, business or trading name, or included in contact details of day-to-day manager (e.g. email addresses)

4.34. Other information about your short-term let will also be published in the register, including the type of short-term let you operate, and maximum number of guests permitted to reside on the premises.

4.35. The following personal information from your application or from Police Scotland background checks may be retained:

• your contact details
• the contact details of other people named on your application form
• date and place of birth (for all applicants, and any agent(s))
• unspent convictions involving: fraud and dishonesty; violence; drugs; firearms; and sexual offences

How long will my data be stored for?

4.36. Your licensing authority must not keep your personal data for longer than needed and is responsible for storing your data, then disposing of it when it is no longer needed. Your personal information will only be held for as long as it is necessary for the effective administration of the licensing scheme.