Short term lets - licensing scheme part 1: guidance for hosts and operators

6. How your licensing application will be determined

Relevant considerations

6.1. 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 overprovision policy, if they have one; and
• their policy on planning control.

6.2. How the local development plan and any overprovision policy affect your application may depend on a number of factors, including: where your premises are located, the type of premises, the type of short-term let, the concentration of short-term lets in the local neighbourhood, the availability of housing for local people etc. This will vary across Scotland so you should check with your licensing and planning authority what their local policies are.

6.3. Your licensing authority may refuse to consider your application if they consider it would be a breach of planning control.

6.4. 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 – see paragraphs 4.9 and following;
• evidence that you are compliant with the mandatory conditions – see paragraphs 4.27 and following;
• whether any additional conditions would be attached to your licence – see paragraph 4.86; and
• any competent objections received, see below.

Planning control

6.5. As stated at paragraphs 4.69 and following, you are advised to check whether you need planning permission to use your property to provide short-term lets. Your licensing authority has the power to refuse to consider an application for a licence if it considers that the use of the premises would breach planning control^[42]. That is to say, if it looks like you need planning permission and you do not have it.

6.6. However, this power will assist licensing authorities in handling applications for secondary letting of a dwellinghouse within a control area. But licensing authorities could use it in other circumstances too.

6.7. 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.

6.8. Once you have obtained planning permission (or a certificate of lawfulness of use or development), you can resubmit your licensing application without any additional charge, providing it is done within 28 days of obtaining planning permission (or certificate).

Confirming the facts of your application

6.9. Your licensing authority will undertake checks to make sure that your application is accurate and complete. They may ask you to submit documentation with your application for this purpose, for example copies of certificates. They will check some information with Police Scotland and the Scottish Fire and Rescue Service.

6.10. Your licensing authority may want to visit your premises to do some checks in person or they may accept evidence from third parties. For example, if you have a report from an appropriately qualified person who has visited your premises and conducted relevant checks.

6.11. Most licensing authorities will take a risk-based approach to how much they look into each application. Usually, premises are visited as part of the application process but this may not always be the case. You will not be charged any extra for this type of visit; the costs are covered by the revenue from everyone's application fees.

Notifying neighbours

6.12. As explained in chapter 3, when the licensing authority receives your application, they will alert your neighbours and give them the chance to raise any objections. They will either send a notice to neighbours or display a notice.

6.13. If you have also made a planning application in respect of the short-term let activity at the same premises, the planning authority will also notify your neighbours. The 1982 Act allows the licensing authority in the planning authority to combine this notice if they wish to do so^[43]. However, the grounds for objection are different for licensing and planning purposes.

6.14. We are encouraging licensing authorities to produce a pro forma template for objections so that you and your neighbours are clear on what might be a reasonable ground to object.

Handling objections

6.15. Objections may be made by neighbours or any other person who wants to raise an objection.

6.16. The primary purpose of the licensing scheme is to ensure short-term lets are safe and to address issues faced by neighbours. Reasonable grounds for objection to a licensing application may include:

• the application is not consistent with the licensing authority's policy on overprovision;
• 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.

6.17. See also the grounds for the licensing authority to refuse your application at paragraph 6.27 below. Objections can be made on any of these grounds.

6.18. Invalid grounds for objection include not liking you or not liking short-term lets in general.

6.19. Where a ground for objection does not relate to grounds for refusal, these can be disregarded by a local authority. They are likely to be disregarded if they relate to another process, for example, an objection to a licensing application on planning grounds.

6.20. 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.

6.21. 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.

6.22. Your licensing authority will decide whether or not to hold a hearing in respect of an application. They do not have to do so and you cannot challenge their decision. If they do 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.

The licensing committee

6.23. 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.

6.24. 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.

6.25. Objectors will be invited to speak to their objections, and you will be invited to state why your application should be granted.

6.26. 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.

Determining your application

6.27. Your licensing authority must grant your application unless there are grounds to refuse it. Possible grounds for refusing your application may include^[44]:

• anybody named on your application is disqualified from having a short-term lets licence^[45];
• 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.

Timescales for determination

6.28. Existing hosts (see paragraph 1.24) who make an application before 1 April 2023 can continue operating whilst their application is being determined^[46]. Licensing authorities have 12 months to determine each application, beginning with the date on which the application was made.

6.29. In all other cases, licensing authorities have 3 months from the date on which the application was made to consider each application, and a further 6 months to determine each application.

6.30. The extended timescale for licensing authorities to determine applications from existing hosts received by 1 April 2023 is designed to help them manage the volume of applications they will receive.

6.31. 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.

Your rights of appeal

6.32. You can appeal against your licensing authority's decision^[47] by summary application to the sheriff, provided that you took every opportunity given to you to make your case to the licensing authority. You are advised to respond to the substance of any relevant objections.

6.33. 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.

6.34. The sheriff may uphold your appeal only if he considers that the licensing authority, in arriving at their decision –

a) erred in law;

b) based their decision on any incorrect material fact;

c) acted contrary to natural justice; or

d) exercised their discretion in an unreasonable manner.

6.35. 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?

6.36. You should expect to pay any solicitor that you instruct to help you. You will also have to pay court fees. Additionally, the sheriff may make an order as 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.

Time limit on reapplying

6.37. 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.

How your data will be managed

6.38. Licensing authorities are responsible for the storage, handling and disposal of all data related to licence applications they receive.

6.39. Licensing authorities are responsible for ensuring compliance with UK General Data Protection Regulations, as data controllers.

6.40. 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 a public register of licences.
• 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.

6.41. 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.

6.42. The following personal information will be published in the register:

• Your name (title, first name, surname)
• Names of any day-to-day managers
• The address of your premises (including postcode and URN).

6.43. Other information about your short-term let will also be published in the register.

6.44. 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?

6.45. Your licensing authority must not keep your personal data for longer than needed. Your licensing authority is responsible for storing your data and 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.