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

5. Setting additional licence conditions

(a) Whether to set additional conditions

5.1. In addition to the mandatory licence conditions, which apply to all short-term lets across Scotland, licensing authorities may impose additional conditions^[21].

5.2. Additional conditions can help licensing authorities to respond to local challenges and concerns specific to short-term lets. Licensing authorities should review their application of additional conditions from time to time.

5.3. An additional condition must not be used to tackle a breach of an existing condition (whether it is a mandatory or additional condition); enforcement notices should be used for this purpose.

5.4. A central policy objective of short-term let licensing is to ensure that the accommodation provided is safe. Where the licensing authority considers that there are significant risks to safety and security, it may be more appropriate to:

• refuse an application
• delay granting an application
• issue an enforcement notice
• vary or suspend a licence
• revoke a licence

5.5. Some of these measures are temporary and allow remedial action to be taken and the licensing authority to be content that the risk has been reduced or removed appropriately.

5.6. When considering whether additional conditions are appropriate, licensing authorities will wish to be satisfied that:

• the matter is not already covered by the requirements of the 1982 Act, Licensing Order or mandatory conditions
• the matter is not already sufficiently covered by other legislation (i.e. already unlawful and enforceable)
• the matter is sufficiently serious to merit an additional condition, rather than a verbal warning, letter or memo
• the matter is not a breach of an existing condition in which case an enforcement notice should be used
• the proposed additional condition does not contradict the requirements of the 1982 Act, Licensing Order or mandatory conditions

5.7. It is advisable for licensing authorities to consider if an additional condition might have unintended consequences that are potentially as severe or worse than the issue to be addressed. For example, measures to limit noise indoors might lead to guests making noise outdoors instead.

5.8. Licensing authorities should give due consideration whether additional conditions they put in place are relevant, proportionate and justified to the use of the accommodation. On 8 June 2023 Lord Braid set out his decision on the

Judicial Review case against the City of Edinburgh’s licensing policy^[22]. We encourage licensing authorities to take note of this judgement (and any subsequent case law) when developing/ reviewing their local licensing policies, including setting additional conditions.

(b) How to publicise additional conditions

5.9. Where licensing authorities choose to use additional conditions they must publish their additional conditions, and failure to do so means the conditions have no effect.

5.10. Where licensing authorities choose to use additional conditions the Scottish Government encourages them to:

• include additional conditions on the licence documentation provided to the licence holder
• publish their additional conditions on their website, together with the criteria and circumstances they will use to determine when these apply

(c) Prohibited condition: limits on nights

5.11. Licensing authorities must not impose an additional condition limiting the number of nights a premises may be used for secondary letting. The policy intention behind this is to ensure premises are not left empty for large periods each year.