Short Term Lets Working Group minutes: 4 August 2021

Attendees and apologies

Stakeholders present:

 

Name	Organisation
Marie Lorimer (ML)	Airbnb
Tony Cain (TC)	ALACHO
Fiona Campbell (FC)	Association of Scotland’s Self Caterers
Ryan Pearson (RP)	Booking.com
Chris McKee (CM)	City of Edinburgh Council
Ailsa Raeburn (AR)	Community Land Scotland
Laura Caven (LC)	COSLA
Wayne Mackay (WM)	Electrical Safety First
David Littlejohn (DL)	Heads of Planning Scotland (Perth & Kinross Council)
Sarah Farnham (SF)	Ketchum – representing Booking.com
Alistair McKie* (AMK)	Law Society of Scotland
Alison McNab* (AMN)	Law Society of Scotland
Stephen McGowan*(SMG)	Law Society of Scotland
Eilidh McGuire (EM)	Law Society of Scotland
Hazel Stevenson (HS)	Local Authority Environmental Health Officers
Kirsten Henderson (KH)	PLACE
Claire MacKenzie (CMz)	Police Scotland (Licensing)
Joanna Lennie (JL)	Police Scotland (Serious & Organised Crime)
Gavin Percy (GP)	Quality in Tourism
David Weston (DW)	Scottish Bed & Breakfast Association
James Clark (JC)	Scottish Fire and Rescue Service
Simon Ovenden (SO)	Scottish Land & Estates
Gary Munro (GM)	SOLAR Scotland (Scottish Local Authority Lawyers and Administrators) (Fife Council)
Kimberley Langley (KL)	SOLAR Scotland (Fife Council)
Leon Thompson (LT)	UK Hospitality Scotland
Matthew Niblett (MN)	UK STAA

 

*Part of meeting only

Scottish Government officials:

• Andrew Mott (AM) – More Homes (chair)
• David Manderson (DM) – More Homes
• David Reekie (DR) – Planning and Architecture
• Linzie Liddell (LL) – Tourism and Major Events

 

Items and actions

Welcome and introductions

Apologies had been received from Jean-Philippe Monod, Russel Griggs, Jo Millar, Marc Crothall, Patrick O’Shaughnessy, James Foice and Barry McCulloch. Alistair McKie joined for the first half of the meeting. Alison McNab joined for the second half of the meeting.

AM welcomed Joanna Lennie, who joined Claire MacKenzie in representing Police Scotland, Serious and Organised Crime Interventions.

AM noted Gavin Mowat had moved on from Scottish Land and Estates. AM welcomed Simon Ovenden who had joined the group to represent SLE.

Minutes and actions

The note of third meeting on 13 May 2021 had been published.

With regard to the actions from that meeting:

Action 2.03: DW to share the response to his FOI request to Food Standards Scotland with the group.	Complete – DW provided this response and it has been circulated to the group.
Action 3.01: All group members to submit comments on the draft guidance by close Tuesday 25 May 2021.	Complete – comments were received from many group members
Action 3.02: All group members to submit contributions to the draft planning guidance by close Tuesday 25 May 2021.	Complete – comments were received from many group members
Action 3.03 JPM to share any evidence on deficiencies with licensing schemes in other parts of the world.	Open – JPM to share evidence with AM.
Action 3.04 FC to share examples of registration schemes in Portugal and on the Isle of Man.	Complete – FC provided contact details for registration schemes in Portugal and on the Isle of Man.

Draft Licensing Order and Policy Note (Consultation Paper 2)

AM highlighted that the papers for the meeting were the published consultation papers (Short Term Lets: Consultation on draft Licensing Order and Business and Regulatory Impact Assessment (BRIA) - Scottish Government - Citizen Space).

AM noted that Ms Robison wrote to the Convener of the Local Government, Housing and Planning Committee in June outlining that the Licensing Order would be laid at the Scottish Parliament in September 2021, allowing for consultation on the draft over the summer.

AM asked members to focus on specific issues to help to get the final legislation absolutely right. AM encouraged members to send a formal response to the consultation; this meeting was meant to give members an opportunity to discuss or clarify any points.

The following members were content with the legislation or had only minor comments or no comments at this stage: Ailsa Raeburn (AR), Chris McKie (CM), Claire Mackenzie (CMz), David Littlejohn (DL), Hazel Stevenson (HS), James Clark (JC), Kimberley Langley (KL), Kirsty Henderson (KH), Gary Munro (GM), Laura Caven (LC), Joanna Lennie (JL), Leon Thompson (LT), Tony Cain (TC) and Wayne MacKay (WM).

AR considered that the tone and content of the guidance documents reflected the discussion of the last working group meeting.  CM noted that the City of Edinburgh Council was broadly comfortable with the Licensing Order and would pick up any minor technical points through the consultation.

KH noted that, amongst urban communities, there was considerable support for licensing, as well as support for sustainable tourism.  KH considered the licensing scheme would support well-run businesses by removing bad actors, as well as providing benefits to communities.  

KH noted PLACE’s primary concern was about temporary exemptions being granted for up to 6 weeks, which PLACE felt could result in properties being left empty and used only for the Edinburgh Festival.  PLACE also wanted the public register to be live and for a ban on secondary letting in flats, through the planning system.

AM noted that changes to the Licensing Order now required local authorities to develop and consult on their temporary exemption policy.

GM noted that SOLAR had spotted a drafting error in Schedule 1.  GM’s primary concern was on the likely level of licensing fees (see later).

CMz noted Police Scotland were generally content.  JL noted the use of some short-term lets for criminal purposes, such as brothels.

JC noted that, whilst there had been good collaboration between SFRS and ASSC, there were still premises operating that did not meet minimum fire safety standards.  JC cautioned about the potential for major incidents within premises that provided sleeping accommodation.  JC noted limited capacity within SFRS given the numbers of short-term lets in Scotland.  JC commented that some B&Bs were bigger than small hotels and was concerned that the safety dimension of the licensing proposals was sometimes overlooked.

LT reiterated UK Hospitality’s support for the licensing scheme, which would level the hospitality playing field and noted that many short-term lets would already be compliant with basic safety requirements. LT indicated the Scottish Tourism Alliance (STA) had held a round table recently with members, and the discussion and range of views expressed at the round table would be reflected in the STA submission.

TC noted strong ALACHO support for this legislation, not least to tackle a housing crisis, with acute pressures in Edinburgh and other parts of Scotland. Short-term lets had diverted housing from those who needed it.

Wayne MacKay (WM) was content from an electrical safety angle, and noted that ESF’s comments had been reflected in the guidance.

The following members were not content with the legislation or the progress made by the working group: David Weston (DW), Fiona Campbell (FC), Marie Lorimer (ML) and Matthew Niblett (MN).  Stephen McGowan (SMG) noted that the Law Society did not have a policy view but had some technical concerns.  Gavin Percy (GP) expressed a preference for a registration scheme.  Simon Ovenden (SO) noted the concerns of some rural stakeholders.

David Weston (DW), whilst noting that he would highlight various minor points through the consultation process, was concerned that a licensing scheme was disproportionate and potentially too costly.  DW was also concerned that guesthouses were now included and about overprovision.  AM advised that overprovision did not apply to, and was not relevant to, B&B accommodation in the owner’s home.  AM advised that the overprovision requirements in the legislation and draft guidance now afforded more protections (i.e. was an improvement on the provision in the 2020 Licensing Order) responding to feedback from the Law Society.

Stephen McGowan (SMG) agreed that the Law Society had raised concerns about lack of detail on overprovision in the 2020 Licensing Order.  SM highlighted that the Law Society’s recommendations had been implemented in the consultation draft.

Fiona Campbell (FC) considered that the working group was a “complete sham”.  FC highlighted support for the ASSC’s proposal for mandatory registration as an exemption to licensing.  AM advised that FC’s proposals had been highlighted to relevant officials and Ministers who had considered them.

FC considered that the draft Licensing Order was now worse than the 2020 Licensing Order which was withdrawn in February 2021.

Gavin Percy (GP) noted that Quality in Tourism could adapt their accreditation systems to accommodate either licensing or registration, but felt that registration would be more proportionate. GP wanted any registration scheme to be backed up by independent accreditation to provide checks and balances.

Marie Lorimer (ML) noted that Airbnb supported proportionate legislation of short-term lets, but felt current proposals were disproportionate, complex and costly.  ML was concerned that fees and requirements of the licensing scheme would be a barrier to entering the market.  ML supported registration as a simpler, more cost effective solution.  ML (and MN) also questioned why control areas were needed, when overprovision powers were included in licensing.  MN was concerned that, where Ministerial approval was not given for a control area, local authorities might use overprovision to have the same effect.  

AM asked members to make specific suggestions in respect of the mandatory conditions in order to achieve the policy aims of all short-term lets complying with basic safety requirements.  SMG was concerned about potential duplication of regimes under other statutes and who was responsible for enforcement; two different regulators could come into conflict.

SMG highlighted other technical concerns.  He was concerned that the licensing authority had to notify neighbours within 20 metres of the premises; alcohol licensing had a 4 metre distance.  Further, it was the Law Society’s view that it should be for the applicant to display the notice, as per existing licensing functions under the 1982 Act.

SMG was pleased that the temporary exemptions regime had been fortified in response to previous Law Society feedback, but wanted to see a right of appeal added.  Without this, the only remedy to a potential appellant would be judicial review.

MN felt that the STAA’s suggested improvements had been ignored, including their support for reducing the neighbour notification distance to 4 metres.  In addition to cost and bureaucracy, the STAA had concerns about different rules being applied by different local authorities, which would make it hard for operators with properties in multiple local authorities.  He was also concerned about uncertainty surrounding renewal.  The STAA favoured an annual recurring licence fee and a presumption of renewal.

On the renewal point, AM highlighted the importance of responsible and sustainable tourism to Scottish Government, local authorities and local communities.  Licensing applications and renewals (and planning applications) would only be refused where there was good reason.

SO was concerned that the licensing scheme was designed to address an Edinburgh issue.  SO expressed concern about lack of consultation with rural communities.  AM highlighted issues raised by stakeholders across Scotland, noting that issues varied but were certainly not confined to Edinburgh.  AM highlighted changes made following suggestions by SLE (e.g. exclusion of agricultural tenancies and bothies) and wanted confirmation that the detailed provision was right.  AM noted the Scottish Government had met with a wide range of stakeholders from urban, rural and island communities across three public consultations and independent research had included both urban and rural communities.

Draft Business and Regulatory Impact Assessment (BRIA) (Consultation Paper 3)

ML commented that the draft BRIA published on 25 June 2021 was very similar to the 2020 BRIA, and was disappointed that Airbnb data on economic impact was not included, nor were ASSC survey results.  A recent ASSC survey had suggested nearly half of operators would leave the industry if these regulations were introduced.  Airbnb’s economic analysis outlined the potential for 17,000 job losses.  Airbnb’s view was that the full impact on future tourism capacity had not been considered.

GM was concerned that the average, indicative licence fees set out in the BRIA were too low.  GM noted that Fife Council HMO fees were around £1,400 for a three year licence for a 3-bed property.  Fife Council expected short-term let licence fees to be similar to HMO fees.

DW commented that £1,400-£1,900 fees would be extremely difficult for micro businesses, especially when they were already complying with basic safety requirements.  GM clarified that he was not suggesting that £1,400 would be the average fee, but it was the fee for Fife Council HMOs.  GM suggested the table at Annex B of the BRIA outlining HMO fees across Scotland were more indicative of likely fees than the estimates set out in the BRIA.

AM reminded the group that the average indicative fees set out in the BRIA had been determined by the Scottish Government speaking to five different local authorities covering a mix of urban, rural and island areas.

AM noted that licence fees would be a cost of doing business for hosts and operators which would apply to everyone; the draft guidance to licensing authorities suggested a sliding scale of fees, appropriate to the scale of the operation.  AM noted many operators already paid fees for membership organisations, such as ASSC or SBBA.

LT wondered whether the Scottish Government could consider introducing a fee cap to alleviate concerns about high fees.

KH noted the concerns raised about the cost of licence fees, but highlighted that there were also costs being carried by communities through the impact on their day to day lives, as well as ability to find and/or afford housing.

Action 4.01.  Working group members who wish to do so to submit written responses to the consultation on the draft Licensing Order and BRIA by Friday 13 August 2021; no extensions were possible, given time required to analyse responses.

Draft guidance (Papers 4 to 6)

LC noted that the COSLA Community Wellbeing Board would be considering the draft guidance in September.

Ryan Pearson (RP) highlighted concerns about language in the guidance around platform obligations and wanted clarity on their duties, for example, understanding their enforcement obligations if a licence was revoked.  RP wanted consistent action across platforms, for example in removing listings following a revocation. AM noted the intended interpretation: must related to legal requirements; should where SG were advising; and could when it was a valid option.  AM agreed that clarity and consistent action across platforms was highly preferable and invited specific suggestions to improve the guidance.

CM sought to clarify the deadline for comments on draft guidance.  AM advised that working group members would be given more time to comment on the guidance and the priority was to focus on responding to the consultation on the legislation and the BRIA. 

Action 4.02.  Working group members who wish to do so to submit written comments on the draft guidance documents.  [Post-meeting note: deadline of Friday 3 September 2021.]

AOB

FC (for ASSC) advised that she was resigning from the Working Group and had prepared a statement which she highlighted.  [This statement was later issued as a press release.]  FC was joined by DW (for SBBA), ML (for Airbnb) and MN (for STAA).  These members did not feel their views had been properly considered.

AM expressed regret at this and advised that changes had been made both to the legislation and guidance in response to comments from working group members.  The Scottish Government had valued the input from all working group members.  If members left the group, then it made it harder for the Scottish Government to get this important legislation absolutely right.

Other working group members, including AR and TC, also advised that they considered it unfair to say the Scottish Government had not listened.  AR considered that these stakeholders had not provided viable alternative proposals to address issues of concern to residents.

DONM

AM noted the next meeting (Meeting 5) had not been scheduled.