Since the licensing scheme for short-term lets came into force in Scotland on 1 October 2022, hosts will need to understand the various conditions they must meet to obtain a licence. This article explains when planning permission may be necessary and details the series of conditions that hosts must meet to obtain a licence. If you are wondering if you need to apply for a licence, when the deadlines are, and how to apply, read the first article in our series to find out more. Our FAQ page can also be found here.
In considering whether to grant a licence, the local authority will consider a range of factors. However, before considering your application, the local authority will require you to comply with a suite of conditions in relation to your property. These conditions include having planning permission in place where required, meeting a number of regulatory standards, and complying with some administrative procedures. The Scottish Government has produced a Guidance document that can be found here.
It is a mandatory licence condition to have planning permission in place where the following three criteria are met:
- Your property is located within a “control area”;
- Your property is used for secondary letting (i.e. you are not letting out your home); and
- Your property is a dwellinghouse.
Even if your property is not in a control area you may still need planning permission if there has been a material change of use to short-term letting in the last 10 years.
It has always been the case that it is the planning authority who determines whether the change of use of a dwellinghouse is a material change of use (i.e. such a significant change in the character of the use that it requires planning permission) on a case-by-case basis. In that sense, the short-term let rules have not changed the general position.
However, in a short-term let control area, any change of use from residential to short-term letting will always require planning permission (or a certificate of lawfulness that confirms the property has been used for short-term letting for more than 10 years). At present, the whole of the City of Edinburgh has been designated a control area (from 5 September 2022) and Highland Council has announced plans for Badenoch and Strathspey to be made a control area. Other local authorities may follow suit.
Within these control areas, if you own a second flat or house that has been made into a short-term let, you must have planning permission or a certificate of lawfulness of use in place for your licence to be granted. Each planning application is considered on a case-by-case basis. The Scottish Government has issued planning guidance as to the material planning considerations that will be taken into account by a planning authority when determining whether or not to grant planning permission. For example:
- Whether guests have access to communal stairwells and gardens;
- The arrival and departure times of guests (particularly if these are at unsociable hours);
- The number of guests staying; and
- The cumulative impact on public services and the character and amenity of a neighbourhood.
If a licensing authority considers that the use of premises for a short-term let would constitute a breach of planning control then it is entitled to refuse to consider an application for a short-term let licence. It will therefore be necessary for a host to obtain either planning permission or a certificate of lawfulness of use (i.e. a certificate confirming that the premises has been used as a short-term let for in excess of 10 years, and so formal planning permission is not required).
In addition to the requirement to have planning permission in place where required, you must meet a series of mandatory conditions before the relevant local authority will grant a licence. These conditions apply to every short-term let in Scotland, regardless of which local authority you are applying to and include the following:
- Licence type: As our previous article explained, there are four types of licence available. It is a mandatory condition that you must only operate under the type of licence you have applied for.
- Fire, gas, electricity and water safety: Your property must meet the relevant fire, gas, electricity and water safety standards, and have in place the necessary risk assessments and certificates.
- Safety, repair and insurance: In short, you must take all reasonable steps to ensure your property is safe for guests. Your property must be wind- and water-tight and be in a reasonable state of repair. You must also have valid buildings insurance and valid public liability insurance in place for your licence to be granted.
- Maximum occupancy: The local authority will specify on your licence the maximum number of guests that are permitted to stay at your property. This number must not be exceeded.
- Display of information: You will be required to display certain information to your guests during their stay. In addition, your online listing for your property must include key information such as your licence number.
In addition to the mandatory conditions mentioned above, each local authority has the power to impose their own additional conditions that you must meet to obtain a licence. It will be important to understand these conditions in advance of making your application. If you have multiple short-term lets, it will be particularly important to understand the additional conditions that each relevant local authority has put in place in respect of each of your properties.
Assessing if you need planning permission and determining whether or not your property meets each of the conditions mentioned above may be time consuming and tricky to get right. It is a criminal offence for you to operate without a licence where you are required, so understanding the conditions you must meet to obtain a licence in good time will be important.
Our licensing team, led by Partner and Solicitor Advocate Kevin Clancy, has been advising clients in Edinburgh and throughout Scotland in respect of their applications for short-term lets licences. If you wish to discuss how these new regulations will affect you, please get in touch with our specialist licensing team, or email at email@example.com, who are more than happy to assist.