A number of local councils in Scotland have, or are soon expected to launch, consultations in regard to their proposed short-term let licensing regime.[1]
Many of the draft policy statements from councils exhibit a presumption of bad practice against the short-term let industry, from issues such as anti-social behaviour to littering, which we find incredibly disheartening and disappointing given the immense economic opportunities the sector provides to Scotland, as well as the fact that many businesses in the area have been a welcome part of the community for decades.
There has already been a wide variation in the level of estimated fees set by councils[2] perhaps going beyond the principle of cost recovery. Unfortunately, there are also examples of local councils who have not provided any estimated fees as part of their draft policy or consultations, which is causing uncertainty in the sector.
Many councils are proposing that a short-term let licencing application include a layout plan at scale 1:100 which should include a legend explaining the scale used and the symbols used. Such technical layout plans may necessitate an expensive piece of work by a contractor which will be another cost on legitimate small businesses operating without issue for decades. This will be in addition to the cost of a licence fee (currently unknown), compliance with existing regulations, the mandatory and additional conditions, not to mention other factors such as rising energy costs.
In addition, some councils intend to do much more in the way of applying additional conditions than others. While the 2022 Order grants local authorities the power to set additional conditions, many are stretching the boundaries of the legislation, and there are also instances of councils replicating the mandatory conditions or existing regulations.
Some Councils are proposing that the licence holder must ensure that the bedrooms, living room and hallway in the premises are carpeted. Applying a condition that the licence holder must ensure that bedrooms, living room and hallway are carpeted is disproportionate and is yet another cost levied on businesses. This would not be asked of a private landlord renting out a property where noise complaints had been levelled by neighbours, so short-term lets operators should not be discriminated against in this manner.
At a challenging time for small business, not only due to pandemic recovery but the impact of the cost of living crisis and in particular increased energy bills, these often unnecessary additional conditions will not only hit self-caterers in the pocket but will also burden resource-stretched councils.
We have provided examples below of a sample of local councils who may be going beyond the policy intentions of licensing, or who have proposed disproportionate costs for small businesses.
Examples
City of Edinburgh Council
- Edinburgh’s licensing consultation provides the following two options for stakeholder comment:
4.17: Option A) Secondary letting in tenement or shared main door accommodation is considered as unsuitable and there will be a rebuttable presumption against the grant of a licence in such circumstances. Option B) There will be a rebuttable presumption against the grant of a licence for secondary letting in tenement or shared main door accommodation, unless the applicant can demonstrate they have consent from the owners of all accommodation within the stair/close in which their accommodation is located.
- This is ultra vires to licensing, as it pertains to a planning consideration, not a safety consideration. It is conflating planning with licensing and falls outwith the intention and scope of the legislation. This opens up the Council to likely legal challenge.
- Additionally, Questions 4 and 5 in the Council’s licensing consultation relate to limitations on the number of nights for which a short-term let could be used in each year. Capping numbers should not form part of the current consultation relating to short-term let licensing, as this again relates to the use of the property, not the safety of the activity.[3]
Argyll and Bute Council
- Argyll and Bute Council is proposing additional conditions in relation to bike hire, watercraft, swimming pools and ponds, and play equipment, four completely unrelated activities to the activity of short-term letting.
- A short-term let concerns the provision of accommodation to a guest. Accommodation means any building or structure, or any part of that building or structure, that is being let out to visitors. Both mandatory and additional conditions should concern matters directly pertaining to short-term lets. Such proposed additional conditions from Argyll and Bute Council clearly do not relate to the provision of accommodation.
Angus Council
- This Council is proposing that operators ensure that “The external garden area including any facilities located in the garden such as hot tubs, swimming pools, bars or barbeques shall not be used after 2100hrs”. Operators can ask guests not to use hot tubs, swimming pools or barbeques after a certain timeframe but cannot compel them to do so. This has been criticised by Scottish Agritourism as it will have an impact on agritourism businesses located on farms.
- Caroline Millar, owner of The Hideaway Experience in Auchterhouse: “…it’s not relevant because we don’t have neighbours and it would have a big impact on our business…[This is] completely irrelevant to a tourism business located in 650 acres of a farm in rural Angus…We pride ourselves on offering our guests the chance for complete privacy surrounded by nature in the Angus countryside, and driving around policing their behaviour would impact significantly on the guest experience and in turn our business income.”[4]
- Angus Council also propose that “Amplified music shall not be played in the garden area or in any part of the property such that it can be heard in the garden area at any time.” If such an additional condition was taken forward, Angus Council will need to define what amplified music means as what is ‘loud’ to one individual compared to another is relative, as well as how this will be assessed. We would raise the issue of enforceability of this and would also like to see what evidence the Council holds that this is a problem within self-catering units in of itself and compared to other types of property.
Highland Council
- Highland Council also propose limitations on the use of hot tubs. It remains to be seen how this apparent ‘hot tub curfew’ can be enforced by Council officers. Will Councils employ someone to ensure that guests are using hot tubs at appropriate hours? This appears to be another instance of short-term let businesses being discriminated against compared to other accommodation providers or types of property.
- The ASSC believe many of the additional conditions set out by Highland Council are wholly unnecessary. This is either due to a replication of mandatory conditions; that they do not relate to the provision of accommodation through short-term letting; or are not within the control of the individual operator.
Fife Council
- Fife Council (and others) are excluding Guest Houses from the requirement for a licence, despite assurances from Scottish Government that “Guest houses were listed as excluded accommodation in the original Licensing Order, as laid in December 2020. However, they were included in the draft Licensing Order that went to public consultation in June 2021. The rationale for their inclusion is set out in the 2021 consultation paper (item 1 in the table at page 12): Short term lets – draft licensing order and business and regulatory impact assessment (BRIA): consultation – gov.scot (www.gov.scot)” (Comment from David Manderson, More Homes, 23rd Feb 2022).
- Schedule 1, 1c states that Excluded Accommodation includes “a hotel which has planning permission granted for use as a hotel”. It also excludes “hostels” in 1d. Both of the above fall under Use Class Order 7. A Guest House also falls under UCO7, but is not specifically mentioned as an exclusion (Guest Houses were specifically excluded in the previous iteration of the legislation). Fife Council are therefore interpreting it incorrectly.
Orkney Council
- Orkney Council is asking for floor plans reflecting 2005 Act liquor licensing including premises drawings, “possibly professional prepared”, at a scale of 1:100 and a location plan at a scale of 1:1250 or 1:2500 for rural locations.
- floor plans should show the extent of the boundary of the building and the external and internal walls of the premises;
- the location and names of any streets surrounding the building from which guests have access to the premises;
- the location and width of each point of access to and egress from the premises;
- the location and width of any other escape routes from the premises;
- the location of any equipment used for the detection or warning of fire or smoke or for fighting fires;
- the location of any steps, stairs, elevators or lifts in the premises;
- any accommodation intended for guests with mobility impairment;
- the number of rooms intended for sleeping; and
- the maximum occupancy capacity of the building (excluding children under 10 years old).
- A floor plan may include a legend through which the matters narrated above may be sufficiently illustrated by the use of symbols on the plan.
- This is excessive given that the Order merely requires identification of maximum occupancy and that the licence holder must ensure that the number of guests does not exceed this.
- It is a heavy handed, onerous and burdensome approach for a small accommodation provider, which will incur considerable cost.
North Ayrshire Council
- North Ayrshire Council has taken a pragmatic approach and intends to offer a licence for ten years at first renewal. The vast majority of council intend to offer licences for a maximum of three years. City of Edinburgh Council proposes to grant licences for secondary letting for one year only.
- North Ayrshire Council have requested formal architectural plans and 6 copies by post!
Perth & Kinross Council
- Perth & Kinross will be asking ‘do you have planning permission’? “If they click yes we will ask them to upload the permission. If they click ‘no’ then a checklist will pop up and if they answer ‘yes’ to any of the questions on the checklist then they need planning permission”.
- “planning are going to work on this next week”
- This indicates that this Council is asking for planning as a pre-requisite to licensing. . Dumfries and Galloway are unsure what to do in this regard, and are waiting from clarification from the planning department. We will need to clarify this across Scotland and alert operators to this very significant consideration. Planning permission applications and associated fees are significant.
[1] The ASSC’s responses to these local consultations can be viewed here: https://www.assc.co.uk/consultations/
[2] For instance, in Perth and Kinross, there’s a £1,600 licence fee for 11+ secondary letting, in Argyll & Bute, they intend to charge properties accommodating 21+ eight times the basic fee, while City of Glasgow Council only intends to charge £200-450. Further detail can be found in the ASSC’s cost of living briefing.
[3] It should be remembered that overprovision powers were withdrawn from the Scottish Government’s licensing legislation in November 2021. This recognises that the government’s objective with the regulations was about ensuring health and safety across all short-term lets, not addressing housing issues.
[4] Quoted in The Courier, ‘Short-term lets rules hit agritourism’, 26/08/22.
