4. How your licensing application will be determined
(a) Relevant considerations
4.1. Before considering your application in detail, your licensing authority will consider it in the context of their licensing and planning policies, including:
- their local development plan;
- their policy on planning control.
4.2. Your licensing authority may refuse to consider your application if they consider it would be a breach of planning control. If your licensing authority refuses to consider your application for this reason, they must tell you within seven days and explain why they are refusing to consider the application.
4.3. If your application proceeds to consideration, 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; and
- any competent objections received, see below.
(b) Confirming the facts of your application
4.4. 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; or
- asking you to declare that you have met the conditions.
4.5. Your licensing authority will check some information with Police Scotland and the Scottish Fire and Rescue Service.
4.6. The Scottish Government expects licensing authorities will 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. You may be charged an additional (published) fee if your premises is visited.
(c) Notifying neighbours
4.7. 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.
4.8. 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; and
- details on how to make objections and representations.
4.9. The site notice should be displayed for 21 days from the date your licence application was submitted to your licensing authority.
4.10. 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.
4.11. We have prepared a template site notice and certificate of compliance forms in Annex C. Your licensing authority may also have template site notice and certificate of compliance forms which you can use.
(d) Handling objections
4.12. Objections may be made by neighbours or any other person who wants to raise an objection.
4.13. 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:
- concerns that the application is inaccurate or misleading;
- concerns about the safety of guests, neighbours or others;
- concerns about noise or nuisance; and
- concerns that the application runs contrary to other legal or contractual requirements.
4.14. Invalid grounds for objection could include not liking you or not liking short-term lets in general.
4.15. Where the objection does not relate to grounds for refusal, these can be disregarded by a licensing authority. They are likely to be disregarded if they relate to another process, for example, an objection to a licensing application on planning grounds.
4.16. 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; and
- is signed by the objector, or on their behalf.
4.17. Objections should be made within 28 days of public notice of the application being given. Your licensing authority will send you a copy of any relevant objections. You will have the chance to respond to any objections, either in writing or in person.
4.18. 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
4.19. Where the licensing authority decides to hold a hearing this will be at 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.
4.20. If your application goes to the licensing committee, you, and any person who has made an objection, will be given the opportunity to be heard at the meeting of the licensing committee. Your licensing authority will give you, and any objectors, at least 14 days' notice of the hearing date. The meeting will be held in public, so other members of the public can observe the proceedings.
4.21. Objectors will be invited to speak to their objections, and you will be invited to state why your application should be granted.
4.22. Members of the committee may follow up with questions, ahead of deciding whether or not to grant your application. The decision and voting may take place in public or the committee may retire to consider and decide the applications.
(f) Determining your application
4.23. 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; or
- e) public order or public safety; or
- 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).
- you cannot demonstrate, or secure, compliance of the mandatory licence conditions
- you cannot secure compliance with any other conditions the licensing authority seek to apply in respect of your application.
(g) Timescales for determination
4.24. Existing hosts who make an application before 1 April 2023 can continue operating whilst their application is being determined. Licensing authorities have 12 months to determine these applications, beginning with the date on which the application was made. This extension, to the time limit for determining an initial application, is designed to help them manage the volume of applications they will receive.
4.25. In all other cases, licensing authorities have 9 months from the date on which the application was made to consider and determine each application.
4.26. 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. The mandatory licence conditions that apply to all short-term lets would also apply to the deemed grant of a licence.
(h) Your rights of appeal
4.27. 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 style 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.
4.28. 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.
4.29. 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; or
- exercised their discretion in an unreasonable manner.
4.30. 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?
4.31. You will have to pay any solicitor that you instruct to help you as well as court fees for lodging the initial writ. Additionally, the sheriff may make an order for one or other 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
4.32. 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
4.33. 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.
4.34. 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).
- Quarterly 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.
4.35. Further details on data processing can be found in the Data Protection Impact Assessment (DPIA) in the 2020 consultation report. Information about the processing of personal data is set out section C of the DPIA.
4.36. 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) ).
4.37. 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.
4.38. The following personal information from your application or from Police Scotland background checks will 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?
4.39. 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.
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