Short-Term Let Regulations Archives - Page 64 of 95

ASSC’s Rebuttal of Evidence Provided by Witnesses on 14th December 2021

Posted on December 20, 2021April 10, 2025 by Melanie Allen

The opinions provided on 14^th December to the Local Government, Housing and Planning Committee – for that is all they were; certainly not evidence – were extremely shocking both in terms of tone and content. The blatant hostility and antipathy levelled at small tourism accommodation providers was astonishing to behold. The self-confessed lack of evidence from supporters of the legislation provides nothing to back up their position, and yet is being given equal weight to the hard data and evidence provided by industry.

The Association of Scotland’s Self Caterers (ASSC) has received numerous comments from members across Scotland expressing their shock at the vitriol expressed by the witnesses towards small tourism accommodation owners. These are micro businesses caught up in the perfect storm of the damaging economic impact of COVID, in an already fragile rural economy – and now impacted by regulations whose aim has been expressly stated as being to ‘manage [them] down’; or, in other words, to put them out of business.

Due to the level of unsubstantiated claims, generalisations and misrepresentations of our sector, the ASSC were compelled to provide a rebuttal so that the Committee have a full appreciation of the facts.

Further to its consultation responses, as well as written evidence to the LGHP Committee, the ASSC has provided evidence that short-term let licensing legislation will detrimentally effect thousands of operators, whether self-caterers or indeed home sharers, for no measurable benefit.

Our key concerns about the evidence provided by witnesses covers seven themes:

Lack of understanding of sector
Economic Impact
Lack of data
Impact on Local Authorities
Anti-social Behaviour
Housing
ASSC’s Registration and Exemption Proposal

Summary of Concerns

There is a general consensus from witnesses that the vast majority of operators are professional and compliant, yet there is also an assumption that operators are “unscrupulous”, “poorly regulated or poorly managed”. These contradictory positions cannot hold.
ASSC members, many of whom have been operating for decades, refute the allegation that the sector is the “Wild West” and at they are “unscrupulous”.
The accusation of drug dealing, sex trafficking and puppy farming is offensive and unsubstantiated.
The value of the sector has been undermined and witnesses suggest that is provides no value to the Scottish economy or local communities – our businesses will seemingly not be missed.
Witnesses evidenced a lack of understanding of the traditional accommodation sector or short-term lets, with repeated discussion regarding one online platform as being ‘the industry’.
Witnesses evidenced a lack of understanding of existing regulations – in relation to anti-social behaviour and health and safety, as well as evidencing confusion of what it is the legislation is attempting to address
There is no evidence or data of the impact of short-term lets on housing
There is no evidence whatsoever to underpin a “reason of general interest”, which is legally required when introducing licensing legislation
Discussion regarding global corporations and large businesses does not reflect ASSC or Scottish Bed & Breakfast (SBBA) membership – they are micro businesses that have been part of communities for decades
Contrary to assertions from the panel that industry has fought against regulation, the ASSC proposed registration, transparency and health and safety compliance in 2017
Witnesses confirmed that the legislation will prove challenging to local authorities
Only one local authority perspective (Edinburgh, a longstanding supporter of licensing) has been provided as oral evidence, while the Committee’s survey results and consultation responses show considerable concern from other local councils about the impact of licensing.
Toxic comments from witnesses looking at cases in isolation have caused deep concern from professional legitimate businesses across Scotland

Read the Rebuttle in Full Here:

Rebuttal of Evidence Provided by Witnesses on 14th December 2021

ASSC Submits Written Evidence to the Local Government, Housing and Planning Committee

Posted on December 16, 2021April 10, 2025 by Fiona Campbell

The ASSC welcomes the opportunity to provide evidence to the Scottish Parliament’s Local Government, Housing and Planning Committee to help inform their scrutiny of the Scottish Government’s short-term let licensing regulations. This elaborates on the oral evidence we provided to the Committee on 7^th December 2021.

Self-catering is hugely important to Scottish tourism in terms of jobs, revenue, and the world-class experiences we’re able to offer our guests. To be such an essential part of Scotland’s tourism mix is even more remarkable for our sector, which generates £867m per annum when we consider that most self-caterers operate small or micro businesses. Scotland’s professional self-caterers are diligent, conscientious, and considerate business people who are too often unfairly maligned. We do not, for example, ‘hollow out communities’, as some have claimed, but rather are part of local communities across Scotland and have been for many, many years.

The ASSC is not averse to regulation; but we do challenge policies which will damage the livelihoods of our members and Scotland’s vital tourism industry. Overall, we want to ensure a balanced and proportionate approach for business, tourism and local communities and get a regulatory framework in place that works for all. It must also be remembered that professional operators are already regulated so the mandatory conditions are essentially duplication and therefore unnecessary.

Any regulations pursued need to be underpinned by robust empirical data. Unfortunately, there has been a tendency to focus on so-called ‘scraped data’ from Airbnb which can lead to misleading conclusions about the nature of the short-term letting landscape in Scotland.

Overall, this one-size fits all, onerous and disproportionate licensing system will damage Scottish tourism and discriminates against small and micro businesses like self-catering and B&Bs, especially in rural and remote areas, and comes at the worst possible time for industry when Covid-19 remains an ongoing issue and when the sector is still in recovery mode.

Committee Evidence December 2021

Over Provision: Opinion of Counsel

Posted on December 16, 2021April 16, 2025 by Fiona Campbell

On 7^th October 2021, the Cabinet Secretary for Housing wrote to the Scottish Government’s Local Government, Housing and Planning Committee,setting out changes to their licensing legislation. The changes included removing over provision powers. She added: “Our licensing scheme proposals deliver national consistency on safety standards, and autonomy for local authorities to add further conditions in response to local needs and concerns”.

While the ASSC and other stakeholders were pleased that over provision was removed, we have concerns relating to what are referred to as ‘additional conditions’, and whether they could result in an over provision policy in all but name. There is no certainty what these additional conditions will be, or how a local authority may be able to introduce them.

With these concerns in mind, the ASSC has sought Opinion of Counsel from Scott Blair, Advocate, Terra Firma Chambers. The issue is whether an over provision test can be derived from the 1982 Act. In short, it can.

The following points relate to the issue of over provision being available as a ground of refusal in terms of paragraph 5(d)(3) of schedule 1 of the 1982 Act, and the legal opinion can be summarised below:

Scott notes the existing planning consideration takes into account the needs of an area and that includes affordable housing. The current consideration for planning is in the SDD circular, 3/2013 at Annex A of that. This annex provides a discussion of Material considerations and planning decision making and the definition within that in relation to the new submit area is “affordable housing”. The planning system therefore recognises housing and related needs and the planning consideration process specifically provides for that.
We require clarification as to why there is a further need for licensing to deal with what is a matter already wholly dealt with by current planning policies. Particularly when the power for Council planning departments to do so is extended by the introduction of planning control zones in terms of the, already approved, planning SSI. We are being told the issue for licensing is a matter of public safety therefore why leave in the option of refusal based on over provision?
The two SSIs, planning and licensing, result in the two separate systems being linked, planning being a pre-exquisite for licensing, see below. The separation then comes in the question of over provision and the consideration of numbers of short term let premises which is different from the assessment of need which the planning authority has to consider in relation to Annex A. This means planning and licensing can take a different view. Scott does not conclude matters but the conclusion here for the ASSC (see Scott’s Opinion at page 13) has to be that given the use of the existing planning restrictions and the introduction of control areas, it is not necessary for the licensing system to consider over provision because the issues are so closely linked that the role of the licensing committee in over provision would be incredibly limited and arguably unnecessary. Over provision should cure a mischief. The ASSC submission here is that mischief is already cured by virtue of the planning control zones.
While over provision has been removed, general licensing in terms of the Civic Government (Scotland) Act 1982 (as opposed to liquor licensing) has always been able to consider a much wider range of matters. Liquor licensing was assisted by the decision in the case of Brightcrew Limited v City of Glasgow Licensing Board, 2011 which determined that licensing boards should only consider matters directly relating to licensing and not other matters. This case related to an adult entertainment venue where the licensing board were trying to put in place specific requirements for there to be certain levels of light, heat, space of changing and similar in relation to the premises staff areas. The court indicated this was a step too far. It is also relevant to planning considerations such as where a restaurant has applied for a licence and the Councillors in the Licensing Board want to consider whether or not there is sufficient parking spaces – this is a planning matter not a licensing matter so cannot be considered by the licensing board.
General licensing regulated by the 1982 Act has schedule 1 which deals with general processing and administration of licence applications and licensing in general. The SSI specifically applies that schedule the provisions to be introduced to the SSI, as one would expect. At Schedule 1, paragraph 5(3)(d) there is a very wide provision for the licensing committee members to consider almost anything – “a licensing authority shall refuse an application to grant or renew a licence if, in their opinion – (d) there is other good reason for refusing the application; and otherwise shall grant the application”.
Scott considers whether, similar to taxi licensing within the 1982 Act, applications could be refused on the basis of over provision even though there is no specific over provision in the legislation. The over provision aspect of taxi licensing is provided for specifically at section 10 of the Act. There is no such specific provisions here therefore could it apply? The answer is yes, which I agree with. If the test can apply (being intra vires as oppose to ultra vires) the second test is the Wednesbury test, which comes down to reasonableness. Scott, at page 15 of his Opinion, considers whether the inclusion of this test would be irrational or unreasonable in terms of Wednesbury. He also narrates case law, Kilmarnock and Loudin DC v Noble Organisation, 1993 which specifically allowed over provision to be an additional matter referred to in paragraph 5(3)(d).
This read along with the case of Caledonian Nightclub v City of Glasgow District Licensing Board, 1996 makes it clear the paragraph 5(3)(d) provision is wide enough to allow licensing authorities to include over provision and that is reasonable to do so, that is, it is reasonable to consider over provision, but the question of refusing the application based on over provision comes down to the merits of each individual application. These cases do not give any guidance on how over provision should be approached there is therefore a significant risk that this could be reincorporated by default given the blanket inclusion of paragraph 5(3)(d) and the previous removal of the specific ability to consider over provision is less helpful if the Scottish Government simply realised they can do so by using 5(3)(d).
There is then the question of suitability. If the planning authority grants planning permission on the basis the premises are not suitable, the licensing authority must consider what makes the premises unsuitable. They can still refuse on the basis premises are unsuitable but have to have a reason. If that is default in safety, eg a lack of proper certification, that is one thing. There may be an argument to be made that if planning have considered the property in question and granted planning consent, the scope for licensing to now look at over provision is narrowed. Suitability is not the same as over provision, and no one is trying to claim it is, but where planning have considered the saturation in an area and allowed the grant of planning for a short term let property, that restricts the scope of licensing to refuse. On that basis would it not be better to be clear that in terms of Short-term let licences, paragraph 5(3)(d) will not extend to over provision.
The proposed SSI on short-term let licensing at paragraph 13 obliges an applicant/operator to have made an application for planning permission or already have planning permission in place. This will significantly increase costs. Many operators do not already have formal planning permission in place as they operate on such a small basis. Those who have mixed use properties and let out part of that property could find the cost of this prohibitive.
Stopping a short-term let being used will result in a number of outcomes mainly though that premises being removed from the market completely and being used for family and friendly only, therefore resulting in a second home; the premises being sold; and the premises being used as a long term let in the form of an HMO. We must go back to the definition in each occasion – “affordable housing”. A vast majority of the short-term let properties will be in an area where there is not a pressing material need for affordable housing or where they would not fall within that category in any event – any six bedroom detached property with its own grounds is unlikely to fall within the definition of affordable housing.
If the Scottish Government insist on going down this route they must be able to justify it therefore they must be able to produce evidence that ceasing short-term lets in such areas would result in affordable housing being available. Looking at the surveys carried out by the trade organisations a number of operators have already confirmed they would simply remove the property from the letting market altogether and it would become a second home used by family and friends only for no payment or payment in kind and therefore largely empty throughout the year, still not assisting the requirement for affordable housing.

Read the full legal opinion: Opinion of Counsel

With thanks to Joanna Millar, Legal Director at Gilson Gray LLP for this summary.