Short Term Lets Licensing Scheme Part 2 - Supplementary Guidance for Licensing Authorities, Letting Agencies and Booking Platforms

4. Handling licence applications

4.1. Licensing authorities will be familiar with the processes under the 1982 Act for determining licence applications. This chapter focuses on obligations and considerations that are specific to the short-term let licensing scheme.

(a) Additional information from applicants

4.2. Licensing authorities may request additional information on licence application forms ^[16]. The following information, if requested, would need to be included in the public register:

• the number of bedrooms in the premises
• contact details for the manager of the premises (if different from the applicant)
• the Energy Performance Certificate rating (where relevant)

(b) Planning considerations

4.3 The Licensing Order contains two provisions relating to planning, which are 1) the power to refuse to consider a licensing application if the use of the premises as a short-term let is considered to be a breach of planning and 2) a mandatory licensing condition in short-term let control areas.

4.4 Licence authorities should consult planning authorities to establish if the use would be considered a breach of planning control. It is important to note that planning permission is not always required for a short-term let. For example, if the change of use was not considered or deemed to be a material change of use, or if the use has become ‘lawful’ in planning terms and immune to planning enforcement action. Planning permission is not normally required for home-sharing or home-letting where the host lives in a house (not a flat) and where (a) they are only letting one bedroom in that house if it has fewer than four bedrooms; or (b) they are only letting one or two bedrooms in that house if it has four or more bedrooms.

4.5. Planning authorities are encouraged to provide guidance to prospective short-term let hosts about planning requirements for their premises. This should explain when use as a short-term let may be regarded as a material change of use and require planning permission. The aim being to support prospective hosts to secure the necessary planning consent they need before they apply for a licence and to reduce the numbers of licence applications being preliminarily refused because of planning breaches.

Refusal to Consider

4.6. A licence authority must tell the host or operator within 28 days of the application being made if they decide to refuse to consider the application on planning grounds.

4.7. A host or operator who has subsequently obtained planning permission (or a certificate of lawfulness of use or development), can resubmit their licensing application and the licensing authority must not charge any additional fee, provided the host or operator submits their application within 28 days of obtaining planning permission (or certificate).

4.8. The power to refuse to consider a licence application should not be used at the point of a licence renewal. Licensing authorities should consult planning authorities to consider what (if any) enforcement action has been taken during the term of the licence and may still decide to refuse to grant the renewal licence on the grounds of planning if they have good reason to do so.

Short-term Let Control Areas

4.9. The Licensing Order contains a mandatory condition relating to planning in Schedule 3 (mandatory condition 13). This states that planning permission must either be in place or have been applied for and not determined where:

• a premises is in a short-term let control area (section 26B of the Town and Country Planning (Scotland) Act 1997) and
• the use of the premises for a short-term let requires planning permission under the 1997 Act

4.10. Under section 26B of the Town and Country Planning (Scotland) Act 1997, after designation of the short-term let control area, a change of use of a dwellinghouse to a short-term let for secondary letting is deemed a material change that will always require planning permission. Section 26B cannot be applied retrospectively, so it will not deem changes which occurred before a control area was designated to automatically be material and require planning permission.

However, the following changes of use of premises to a short-term let in a control area may require planning permission under section 26 of the 1997 Act if those changes of use are considered to be material changes of use:

• a change of use of premises to a short-term let for secondary letting where that change of use occurred before designation of the short-term let control area or
• a change of use of premises to use as a short term let for home-letting or home-sharing where that change of use occurred before or after designation of the short-term let control area

(c) Licence numbers

4.11. The Scottish Government encourages licensing authorities to issue licence numbers in a consistent format across Scotland. This consistency is to aid with data handling and to assist letting agencies and platforms in being able to include the licence number provided by the host or operator in their listings. The format is set out and explained in this chapter and specified in Annex A.

4.12. This consistency in format also applies to:

• provisional licences
• temporary licences
• temporary exemptions

4.13. This means that all short-term let licence holders in Scotland have such a number.

4.14. The format of the licence number, alongside information contained in the public register, will allow anybody to identify:

a) the licensing authority who issued the licence (and therefore the area to which the licence relates)

b) the type of licence (or exemption)

4.15. The licence number will also include a five digit number issued by the licensing authority. The overall licence number will be unique across Scotland.

(d) Notifying residents and neighbours

4.16. Applicants are required to display a site notice at or near the premises so that it can be conveniently read by the public for a period of 21 days beginning with the date on which the application was submitted to the licensing authority.

4.17. A notice must state^[17]:

a) that an application for a licence has been made

b) the main facts of the application

c) that objections and representations in relation to the application may be made to the licensing authority

d) how to make objections or representations

4.18. Applicants are required to certify compliance^[18] that they have displayed the site notice as soon as possible after the 21 days has expired.

Objections

4.19. Licensing authorities will decide whether the objections submitted are valid. Licensing authorities may entertain a late objection if they are satisfied there is a sufficient reason as to why it was not made on time. Where a licensing authority entertains a late objection, they must satisfy themselves as to the sufficiency of the reason for lateness and explain why they have decided to entertain the objection. Licensing authorities that receive an objection may choose to notify the applicant that an objection has been raised before the objection is published.

(e) Mandatory Conditions

Maximum occupancy condition

4.20. Licensing authorities should explain to applicants how they will determine maximum occupancy, to enable prospective hosts and operators to understand how this will be calculated.

4.21. The Scottish Government encourages licensing authorities to consider criteria (a) and (b) below when determining maximum occupancy. They may also wish to take other factors into account as relevant, such as (c), using the lowest of these numbers to determine maximum occupancy:

a) the number requested on the application form

b) the maximum number that can be accommodated safely (broken down to the number of adults and the number of children)

c) the maximum number that can be accommodated within tolerable noise and nuisance standards for neighbours

4.22. Licensing authorities may ask applicants to submit (as part of their application) floor plan(s) for their premises indicating room sizes, fire escape routes and accommodation intended for guests with mobility impairment (where applicable).

4.23. Licensing authorities may also wish to ask for plans to show the location of any steps, stairs, elevators or lifts in the premises, as well as the extent and boundary of the building – if relevant. The Scottish Government encourages licensing authorities to provide a clear rationale for any documentation they request, ensuring that requirements are proportionate and do not place an undue or unreasonable cost burden on applicants. Licensing authorities should accept floor plans in different formats (including hand-drawn plans) subject to these plans providing the information in a clear way to meet their requirements.

4.24. In determining an appropriate maximum occupancy for a short-term let premises, licensing authorities should note that minimum space standards that apply to HMO licensing do not apply to short-term lets. Guests staying in a short-term let may be prepared to accept staying in a smaller room that does not meet the HMO bedroom space standards, such as city breaks where the room is only used as a bed for the night or where the premises has large living accommodation. Policies for short-term lets should therefore take this into account and should not automatically impose HMO minimum space standards.

Children

4.25. Licensing authorities may choose to specify on a licence that guests may bring a certain number of small children under a specified age limit and these would not count towards the occupancy of the premises. Children above the age limit and any additional children of any age would count towards the occupancy. Licensing authorities may wish to set the age limit as under 10 years, which is in line with the reference to children in the context of housing within the Housing (Scotland) Act 1987.

Electrical Safety

4.26. Emergency lighting and exit signage may be necessary under the Fire Safety (Scotland) Regulations 2006. Emergency lighting is lighting designed to come into, or remain in, operation automatically in the event of a local and general power failure. It should be installed in buildings considered to be at higher risk, such as in high rise buildings, buildings with basements or in rooms where the number of people is likely to exceed 60. Licensing authorities should refer to the relevant guidance available on the Scottish Government website^[19] and consult Scottish Fire and Rescue Service if they wish to consider the circumstances of specific licence applications.

Water Safety

4.27. The Scottish Government publishes guidance about the repairing standard to enable hosts/ landlords to understand what they need to do to ensure their premises meets this standard. This includes information about what to do if their premises has lead piping^[20].

(f) Insurance for buildings and public liability

4.28. The Licensing Order stipulates that having valid buildings and public liability insurance are mandatory licensing conditions. Licensing authorities may ask applicants to provide evidence to assure themselves that these are in place.

(g) Facilitating transfer of short-term let licences

4.29. A licence holder may apply to the licensing authority to transfer the licence to a new host/s, subject to there being no objections from the Chief Constable. Where the chief constable does not make any objection or representation the licensing authority must grant the transfer application.

4.30. This will support hosts/operators if they wish to sell by allowing them to market their accommodation as a short-term let (with onward bookings). The licensing authority will consult the Chief Constable as part of the transfer application and prospective hosts/operators will not have to apply for a new full licence. The timeframe left to run on the licence will transfer to the new licence holder. For example, if a licence transfers 13 months into a three year licence, the new licence holder will renew the licence after 23 months.

4.31. We envisage the transfer process will be timely. While the new licence holder should not be routinely asked to re-submit documentation to demonstrate the accommodation still complies with mandatory licensing conditions, licensing authorities may ask for ‘such other information as the authority may reasonably require’. This may relate to PAT testing documentation of any new electrical equipment and/ or statement of compliance with furniture requirements as relevant.

4.32. A licensing authority can charge a fee for handling a short-term let licence transfer.

(h) Provisional licences

4.33. A new host who is building accommodation intended for use as a short-term let can apply for a provisional licence before the construction is complete. The provisional short-term let licence can then be confirmed once the construction is complete and the host demonstrates that they comply with the mandatory licence conditions. This is intended to provide reassurance to lenders at the initial stage but hosts will not be able to take bookings until their licence application is confirmed by the licensing authority once the accommodation is built.

4.34. When the provisional licence application is made, it must be accompanied by a provisional planning certificate (a certificate from the planning authority stating that planning permission in principle or outline planning permission has been obtained or that no such planning permission is required). Otherwise, the application follows the same procedure as an application for any short-term let license. Where a provisional licence is granted, the licensing authority will advise how long this is granted for. The provisional licence will also automatically be revoked if it is not confirmed within 3 years of its issue (although this period can be extended if the licensing authority is satisfied that completion of the construction has been delayed by factors outwith the licence holder’s control).

4.35. When construction is complete, the provisional licence holder may then apply to the licensing authority to confirm the provisional licence. The application must be accompanied by the provisional licence, a planning certificate (if planning permission was required), a buildings standard certificate and such other information as the licensing authority may reasonably require. Provided the licensing authority is satisfied that the mandatory conditions, and any other conditions imposed on the license can be complied with, the provisional licence must be confirmed. From that point, the host can take bookings. The licensing authority will advise the term of the confirmed licence.