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Law Society of Scotland STL Licensing Consultation Submission

Key Quotes from Law Society of Scotland STL Licensing Consultation Submission (2021)

Overprovision and Duplication of Planning/Licensing Regimes

“Our main concerns reflected that once the draft Order is laid and passed that it needs to be right. Principally, there appears to be confusion between the requirements of the separate planning and licensing schemes. These have separate purposes which need to be respected albeit that short term lets will operate under one local authority but crucially, by them wearing different hats. Since the operation of the short term lets is not being set up by new and specific bespoke legislation but instead seeks to add onto the existing schemes set up under the 1982 Act where current caselaw and practices prevail. In setting up a licensing regime, the focus for licensing is about the fit and proper person being the person responsible for the short term let. As the draft Order stands, we consider that the risk of challenge is high – and this could potentially follow on from what has been a high-profile and to an extent controversial decision to proceed by a licensing scheme for short term. That confusion needs resolved before the draft Order should be laid.” (p2-3)

“We do not consider that the implications of these provisions [overprovision] have been fully thought through. This touches on conflating licensing and planning matters. If the issue is not fully resolved now, we suspect that this is going to remain a significant area of challenge, given the existence of these somewhat blurred lines…When considering the implications for overprovision, as we explained, please consider what the “mischief” is. Why include this as a mandatory provision for licensing? This also risks duplication with other areas of policy in planning. With this potential for conflict, Ministers could refuse to grant a planning STL control zone but thereafter the Local Authority may write up an overprovision policy that could have a similar effect.” (p4-5)

“We have concerns about the duplication of conditions under the separate planning and licensing regimes. We predict that this is also going to cause other issues in respect of building standards and fire safety. This may go onto to have implications for different Local Authorities if they provide for or require different standards of evidence etc. for the mandatory conditions. Compliance may vary – which makes it difficult for those operating across different local authority regions.” (p6)

Impact on Local Councils

“As we have indicated previously, there are significant implications arising from these timescales for the licensing authorities. We are concerned with the internal resourcing that will be required and if that provides sufficient time. Some reassurance should be sought to confirm support for these timescales on the proposed implementation.” (p4)


“We consider that there are various aspects which seem problematic. The proposal that notification should be undertaken for all within 20m is disproportionate compared to other regimes such as alcohol licensing where the equivalent area is 4m. (See section 3 of the draft Guidance (paper 4)). This will be very burdensome for local authorities, particularly in densely populated/city centre areas.

Local authorities do not have the resources to cope with site notifications rather than placing the obligation on the applicant to notify as they are best placed to do so, and which forms the current licensing practice. It is much easier for the applicant to undertake and not the local authority…

Issues of competency following the grant of a short term let may well arise if notices have not been displayed in accordance with the requirements. Section 2(7) of Schedule 1 of the 1982 Act sets out the public licence requirements quite clearly – why the short term lets should seek to change them is unclear on what appears to operate effectively meantime. This is not a new regime but involves the use of existing legislation to put in place the proposed new short term let licensing scheme.” (p5)


“…the draft Order does not include any appeal mechanisms. Consideration should be given to the inclusion of an appeal scheme as this should apply in respect of the grant of a licence and/or any refusal of a licence. This is only fair to avoid recourse to judicial review which is expensive, challenging and time consuming. The European Union Services Directive may apply in respect of appeal provisions.” (p5)


“We agree that this is the main purpose of the inclusion of licensing, but we have concerns over several the terms of the draft Order…If the requirements on those seeking to let their property are too onerous or expensive, then they will be deterred from operating short term lets which is not the purpose in providing for a licensing scheme. It is important to maintain or indeed achieve that balance. There are concerns in bringing in this system as a Scotland wide policy that this will adversely affect rural areas and the availability of short- term lets. For instance, the effect/financial impact on the small-time individual lessor, who perhaps uses an old family home very occasionally for a holiday let, will be disproportionally far greater than on a commercial business whose raison d’etre is the letting of properties on a short-term basis.” (p7).


“It is unusual that draft Guidance (Papers 4 and 5) is being drafted before the policy as set out in the draft Order on the short term lets is finalised.” (p3)

“…we would seek the inclusion of a requirement that both sets of Guidance are kept under regular review once they are published and that the responsibility for their maintenance is clarified. We have voiced concerns about Guidance previously that is unclear and is not kept up to date to reflect changes in the law. It is easiest given the work going forward if this is specifically set out as a legislative requirement. This ties in with our observations that the Guidance is not legal advice and cannot be relied upon in that sense. The status and ownership of the Guidance must also be made clear.” (p4)

Read the full submission.

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