Short term lets - licensing scheme part 2: supplementary guidance for licensing authorities, letting agencies and 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.

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 – see chapter 6.

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; or
• 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.

The issues that might be addressed

5.6. Some of the issues raised by residents and communities in relation to short-term lets, through the public consultation, research and elsewhere, include:

• noise and nuisance, including drunkenness, smoking and drug-taking;
• litter or other mess in communal areas;
• failure to maintain the property in a good state of repair;
• failure to maintain, or contribute to the cost of maintaining, communal areas;
• damage to property (etc. from key boxes affixed to walls); and
• unlawful activity (e.g. using the property as a brothel).

5.7. Additional conditions allow licensing authorities to tackle many of these issues whilst still allowing the premises to be used for short-term lets.

(b) Scope of additional conditions

5.8. Licensing authorities have broad powers around which premises have additional conditions attached to them. Different additional conditions may be determined:

• in respect of different licences, or different types of licence; or
• otherwise for different purposes, circumstances or cases.

5.9. Licensing authorities cannot use additional conditions to contradict, modify or dilute mandatory conditions.

5.10. 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. 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.

(c) How to publicise additional conditions

5.11. 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.

5.12. 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.

(d) How to draft an additional condition

Preliminary

5.13. Licensing authorities are experienced in applying the Civic Government (Scotland) Act 1982 and, in determining whether additional conditions are appropriate, 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 – see chapter 6; and
• the proposed additional condition does not contradict the requirements of the 1982 Act, Licensing Order or mandatory conditions.

5.14. 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.

(e) Prohibited condition: limits on nights

5.15. Licensing authorities must not impose an additional condition limiting the number of nights a property may be used for secondary letting. The policy intention behind this is to ensure premises are not left empty for large periods each year.^[22]

5.16. This condition does not apply to home sharing and home letting.

Antisocial behaviour

5.17. While there are already a range of powers available to licensing authorities to deal with antisocial behaviour through provisions in the Antisocial Behaviour etc. (Scotland) Act 2004, there are levels of noise and disturbance that may fall short of being described as a statutory nuisance but are considered unacceptable in planning terms (and licensing terms).

5.18. Licensing authorities may wish to include a condition requiring the licence holder to manage their premises in a way to prevent anti-social behaviour as far as reasonably practicable, and to effectively deal with any instances of anti-social behaviour.

Template additional condition

1. The licence holder must take reasonable steps to manage the premises in such a way as to seek to prevent and deal effectively with any antisocial behaviour by guests to anyone else in the short-term let and in the locality of the short-term let.

2. The licence holder must take reasonable steps to:

• ensure that no disturbance or nuisance arises within or from the premises, for example by explaining the house rules to the guests;
• deal effectively with any disturbance or nuisance arising within or from the premises, as soon as reasonably practicable after the licence holder is made aware of it; and
• ensure any vehicles belonging to guests are parked lawfully, for example explaining where any designated parking spaces are to be found and highlighting any local rules.