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Reasons for not utilising the Anti-Social Behaviour etc. (Scotland) Act 2004 (“the 2004 Act”) to Regulate the Short-Term Let Sector

The Association of Scotland’s Self-Caterers and Sykes Holiday Cottages have sent a jointly signed letter to the Scottish Government asking for reasons for not utilising the Anti-Social Behaviour etc. (Scotland) Act 2004 (“the 2004 Act”) to regulate the short-term let sector.

“We have received correspondence from Mr McLennan dated 5 June 2023 and from the Directorate for Local Government and Housing dated 22 June 2023, respectively.

The letters contain similar reasons for not utilising the Anti-Social Behaviour etc. (Scotland) Act 2004 (“the 2004 Act”) to regulate the short-term let sector as is the case for the long-term let sector. To address three of the stated reasons:

1. The ability for local authorities to add additional conditions.

  • The ability to add additional conditions has been one of the most significant failings of the licensing scheme with inappropriate and disproportionate use of them being recognised by the Court of Session in the recent judicial review of City of Edinburgh Council’s policy, and by the Scottish Government in needing to write to local authorities to rein in their use of them and amend the guidance to licensing authorities.
  • Our question remains, why is it that local authorities need powers to be able to require additional conditions for the short-term let sector, leading to 32 different licensing schemes, but not for the long-term let sector? What evidenced additional mischief is it required to address?

2. That the 2004 Act doesn’t incorporate the same level of provision as the 1982 Act, and that a licence represents assurance to guests that they can have confidence in the safety status of the accommodation.

  • The 2004 Act, and the Private Landlord Registration (Information) (Scotland) Regulations 2019 under it, provide for a register with a lengthy list of conditions, including health and safety, for landlords to meet.
  • This therefore presents the question: does that register provide sufficient assurance for tenants in long-term lets about the safety status of the accommodation?
  • Further, is there a reason that tenants in long-term lets need a different (lower) level of assurance about the safety status of their accommodation than in a short-term let?

3. The provision relating to enforcement wouldn’t be at the same level.

  • Under section 7 of the Civic Government (Scotland) Act 1982 (under which the licensing scheme sits), the enforcement is through a fine up to level 4 on the standard scale.
  • Under section 93 of the 2004 Act, the enforcement is through a fine up to £50,000, which is clearly more robust.
  • Under both systems the local authority has the individual’s details to pursue enforcement of anti-social or health and safety legislation.
  • As such, we fail to see how the enforcement provisions under the licensing scheme are stronger than those under the 2004 Act.The 2004 Act could be amended with a Scottish Statutory Instrument to put back in the ability of registers under the Act to be for self-catering accommodation (following the SSI that inserted section 83(6)(n) which took them out).

We anticipate an announcement from the Wales Government at the beginning of July that they are to introduce a ‘licensing’ scheme which is in fact in line with proportionate registration: a centralised, low cost register with self-certification for mandatory health & safety conditions and spot checks. The UK Government is currently consulting on a similarly proportionate registration scheme for England which would have similar requirements. Why is it that in Scotland, the risk is deemed so much higher that the licensing scheme as it stands is required? Where is the evidence to necessitate this incredibly heavy-handed approach?

A national, mandatory registration scheme would:

  • Robustly achieve the policy aims;
  • Provide assurances to visitors and residents in the same way that assurances are provided to tenants and neighbours;
  • Allow for a single coherent, proportionate and lawful approach to be established across Scotland;
  • Address the clearly evidenced unintended consequences thrown up by implementation of the existing legislation;
  • Remove the uncertainty for operators who are unable to take bookings into the future while licence applications are being considered (which can take up to 12 months);
  • Remove the reluctance of visitors to book where a booking cannot be confirmed;
  • Remove the barrier to investment;
  • Remove the lack of certainty which is negatively impacting on operators’ ability to maintain and develop their businesses;
  • Protect legitimate businesses and livelihoods;
  • Ensure no further damage to Scotland’s tourism industry;
  • Provide the data required to the Scottish Government and local authorities should further policy intervention be considered; and
  • Provide evidence of a reset of relations between the Scottish Government and industry, as per the New Deal for Business agenda.

We would welcome the opportunity to discuss these matters urgently to understand the reluctance of the Scottish Government to address the real concerns identified by industry, and meaningfully consider the viable solution presented. We would also be grateful for clear answers to the questions raised above.”

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