Short-Term Lets Amendment Order 2024 Legislation and Policy Update Oct 2024
Renfrewshire Council · 14 November 2024
Back to Regulatory Functions Board — 14 November 2024 and its agenda
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___________________________________________________________________ To: Regulatory Functions Board On: 14th November 2024 ___________________________________________________________________ Report by: Director of Finance and Resources ___________________________________________________________________ Heading: Licensing of Short-Term Lets: Implementation of Changes to Legislation and Review of Policy ___________________________________________________________________ 1. Summary 1.1 The purpose of this report is to advise the Board of recent changes to the short-term lets licensing legislation and the steps the Council as licensing authority is required to take to implement these changes. 1.2 The Board is also asked to agree application fees in respect of new statutory processes introduced by the new legislation and to agree necessary updating of the Board’s current short-term lets licensing policy relating to Temporary Exemptions. 1.3 Finally, the Board is asked to recommend to Council that limited changes be made to the Scheme of Delegated Functions to allow the approval of new types of applications relating to short-term let licences and to reflect the change in legislation regarding Temporary Exemptions (where a delegated power already exists within the Scheme). _____________________________________________________________ 2. Recommendations 2.1 Note the changes introduced by the new legislation;
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2.2 Agree the new application fees proposed for provisional short-term let licences and confirmation of these licences; and the proposed application fees for transfer of short-term let licences, all as set out at Paragraph 5.8, Paragraph 5.13 and Appendix 2 to this report; and 2.3 Agree that the changes set out at Appendix 1 to the report be made to the Council’s current policy as it relates to Temporary Exemptions; 2.4 Instruct officers to publish on the Council’s website details of (i) such new fees and (ii) changes to the existing policy, as may be agreed by the Board in relation to the recommendations at Paragraphs 2.2 and 2.3 above; 2.5 Instruct officers to develop new application forms and procedures relative to applications for provisional short-term let licences, as also for confirmation and transfer of short-term let licences; 2.6 Recommend to Council that changes be made to the Scheme of Delegated Functions as set out at Paragraph 6.1; and 2.7 Otherwise note the terms of the report. ___________________________________________________ 3. Background 3.1 In June and September 2022, the Board considered reports relative to a new legal requirement for the Council to introduce a regime for the licensing of short-term lets. This new regime required to be in place to allow applications for short-term let licences to be made from the beginning of October 2022. Officers carried out a consultation exercise in the summer of 2022 and, at their meeting in September that year, the Board agreed a policy in relation to the licensing of short-term lets and a fees structure for applications. The Board also agreed to recommend to Council that some necessary changes be made to the Scheme of Delegated Functions as a result of the new short- term lets licensing legislation. 3.2 The legal requirement to set up a licensing scheme was introduced as a result of the Civic Government (Scotland) Act 1982 (Licensing of Short-Term Lets) Order 2022 (“the Licensing Order”), which introduced short-term lets as a new activity to be licensed. This Order modified the terms of existing legislation, the Civic Government (Scotland) Act 1982 (“the 1982 Act”), in relation to short-term lets. In the period since 1st October 2022 to 30th September 2023, being the deadline for existing operators to apply, the Council received approximately 120 applications. The initial applications received have now been decided, either by officers or at meetings of the Board.
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3.3 On 29th August 2024, amending legislation, the Civic Government (Scotland) Act 1982 (Licensing of Short-Term Lets) Amendment Order 2024 (“the 2024 Order”), was made, which came into force on 30th August 2024. The 2024 Order makes a number of changes to the above legislation for the licensing of short-term lets, as summarised in section 4 of this report. 4. The 2024 Order 4.1 The 2024 Order makes several changes to the legal position previously set out in the Licensing Order in relation to short-term lets. These can be summarised as: the introduction of provisional licences; a facility to transfer licences; changes to the rules on temporary exemptions; and other ancillary changes. These are further detailed in the following paragraphs. Provisional Short-Term Let Licences 4.2 The 2024 Order introduces a new procedure to allow an application for a short-term let licence to be made in respect of premises prior to them being constructed. This type of application, and resulting licence, are known as a provisional licence application/ provisional licence. A provisional licence will not come into effect immediately, but at a later date, when the premises are fully constructed and the Council is satisfied that the mandatory conditions of licence can be met. This is known as the confirmation process and would require a further licensing application to be made to the Council. While a similar, but not identical, process exists under liquor licensing legislation, this has not until now been available for licences applied for under the terms of the 1982 Act, or under the previous modifications made to that Act for short-term lets. The introduction of the process will avoid applicants for licences having to wait until the completion of construction before commencing the licence application process. The Board may wish to note that the introduction of provisional licences for short-term lets only applies to premises to be newly constructed; the legislation does not, unlike its liquor licensing equivalent, apply to premises to be converted for use as a short-term let. Transfer of Short-Term Let Licences 4.3 Similarly to the position with provisional licences, the 1982 Act, and the Licensing Order, did not until now allow an application to be made for transfer of a licence from a licence holder to another person. The 2024 Order changes this position, for short-term lets only, to allow the existing licence holder to apply for transfer of the licence to another party.
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The procedure for transfer of a licence is simpler in comparison to an application for a licence: the suitability of the premises will have been considered when the licence was obtained, so the requirement for a transfer application is to consult Police Scotland who will be able to comment within a period of 28 days from the application being made on the fit and proper status of an applicant. The new transfer provision does, however, allow conditions to be imposed at the time of transfer of a short-term let licence. Temporary Exemptions 4.4 The Licensing Order introduced a temporary exemption from the need for a short-term let licence. This provided a means by which a host/ operator of premises could let their property or properties, without a licence, for up to 6 weeks: for example, for the duration of a festival or sporting event. This temporary exemption provision became the subject of discussion nationally as to whether a temporary exemption required to be for a single continuous period of up to six weeks, or whether it could be cumulative periods of up to six weeks within a calendar year. The 2024 Order now provides some clarity regarding this. It provides that a temporary exemption may only be granted in relation to a specified property or properties if, in one calendar year, there are no more than three separate periods and the total period is 6 weeks or less. In calculating this, the 2024 Order also clarifies that any periods of exemption before it came into force should not be counted. Amendment to Licence Conditions 4.5 The 2024 Order recognises a recommendation made as a result of a Fatal Accident Inquiry regarding the use of mobile gas cabinet heaters in short- term lets. It provides for two additions to one of the mandatory conditions of licence regulating the information to be displayed in premises, including information about the action to be taken when a carbon monoxide alarm sounds and about the operation and movement of these heaters. Miscellaneous 4.6 Otherwise, the 2024 Order makes a few other changes to the Licensing Order. The most significant of these is an exemption for fostering and nursing arrangements and sheltered housing from the requirement to be licensed. 5. Implementation 5.1 While some of the above changes are of a technical nature and will be implemented by officers as required, others will require the authority of the
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Board. In particular, this is the case for temporary exemptions, where a change to the Council’s published policy in relation to the licensing of short- term lets requires to be made, and for provisional licence/ confirmation and transfer applications, where, in addition to forms and application processes being developed by officers, reasonable fee levels require to be agreed by the Board. Finally, as a result of the new procedures which the 2024 Order introduces, changes will be required to the Council’s Scheme of Delegated Functions, which is addressed at section 6 of the report. Change of Policy in relation to Temporary Exemptions 5.2 The Council requires under the terms of the Licensing Order to have a policy in relation to the use of temporary exemptions and to keep this policy under review. The Councils’ current published policy in relation to the licensing of short-term lets, which includes its policy on Temporary Exemptions at section 9 of that policy, can be accessed at: https://www.renfrewshire.gov.uk/article/12823/Short-term-let-licence-for- residential-accommodation 5.3 The Council’s current policy in relation to Temporary Exemptions was prepared in 2022 on the basis of the legislation applicable at that time. While no requests for Temporary Exemptions have been received in Renfrewshire to date, the existing policy assumes a temporary exemption being possible in respect of a single period of up to six weeks within a calendar year. In light of the clarification given by the 2024 Order, the Board is now asked to agree to change the section of the Council’s above policy which deals with Temporary Exemptions to the new version set out at Appendix 1 to this report. The requirement to develop and publish a policy statement on temporary exemptions and to keep it under review is a statutory one, in terms of the Licensing Order. In reviewing the statement, which is required every three years, the Licensing Order requires the Council to consult with such persons as the licensing authority considers appropriate. As the changes proposed to the policy on temporary exemptions are of an entirely technical nature, to reflect the clarity now provided by the 2024 Order (which affords more flexibility to operators) and to incorporate an inflationary increase in the fee level previously agreed by the Council in 2023 (the possibility of such increases having been recognised in the existing policy), it is not considered appropriate to consult any persons at this time on these limited changes. While the Licensing Order’s provisions requiring publication of a policy statement relates only to temporary exemptions, it is anticipated that the Board’s published policy covering wider matters regarding short-term lets will be reviewed in 2025 and consideration will be given to what consultation is to be carried out at that time. Officers have noted that some content within
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the current policy statement relating to short-term lets generally was developed in advance of the transitional period for applications and as such no longer relevant for current applications. It is also recognised that changes to the legislation and guidance, the development of case law and the potential for further guidance in the foreseeable future may result in changes to the Board’s published policy on the licensing of short-term lets. Fees 5.4 As set out above, the Board requires to agree fees in respect of applications for provisional licences, applications for confirmation of provisional licences and applications for transfer. 5.5 The Board will appreciate that fees for licensing applications made under the terms of the Civic Government (Scotland) Act 1982, including short-term let licensing applications, are based on cost recovery. The Board had regard to this requirement when setting various short-term let licensing fees in 2022. Provisional Licence and Confirmation Application Fees 5.6 In relation to provisional short-term let licence applications, the current fee for licence applications, whether for home sharing or letting (or both) or secondary letting includes the full application process from receipt and verification of an application, to considering any objections or representations received, to the Council being satisfied that the conditions of licence can be met, to the grant and issue of a licence. 5.7 While the detail of the new legislation around provisional licences will raise some complexities in practice, it is clear that obtaining a licence in two stages will involve a cumulative amount of work no less than equivalent to, and likely greater than, an application for a full licence, due to the requirement to verify and process two applications rather than one. In addition, there will need to be additional checks at the first stage, to ensure that applications are related to premises to be constructed rather than converted, as set out above. 5.8 Officers have given consideration to an appropriate level of fee to be payable where an application for provisional licence or confirmation is made. Having done so, it is recommended that the fee should be set broadly based on the equivalent fee for a full short-term let licence of the same type. However, it is proposed that the fee should be split between the provisional and confirmation stages, with 65% attributable to the provisional stage and 35% to the confirmation stage, with an extra £100 added in respect of the confirmation application. A summary of the fees, based on this proposal, is set out at Appendix 2. The Board may wish to note that the agreed fees will be subject to any annual increase to Council charges as part of the budget setting process in advance of April 1st 2025, and then similarly in subsequent years. Otherwise
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the fees would immediately fall out of step with those that form the basis of them. 5.9 The Board may wish to note that, while the usual consultation procedure will be followed at the stage of the provisional licence application, detailed checks as to whether the mandatory and additional conditions of licence can be met will require to take place at the stage of confirming a provisional licence. As such, the confirmation process is likely to be less straightforward than under the liquor licensing procedures for confirmation, where the checks carried out are limited to ensuring that full certification exists from Planning, Building Standards and Environmental Health and that there have been no changes to the original layout proposed. Transfer Application Fees 5.10 As indicated above, an application for transfer is likely to be simpler than a full application for a licence. 5.11 Until now, it was not possible to apply for the transfer of a licence relating to a short-term let, or relating to any other premises licensed under the terms of the 1982 Act and the Board will require to determine a reasonable level of fee for this new type of application. 5.12 The Board may wish to note that applications for transfer may currently be made in respect of premises licensed for the sale of alcohol under the Licensing (Scotland) Act 2005 (“the 2005 Act”), albeit the procedure is not identical. The fees for these applications are set by the Licensing Board and are presently £50 (where the transfer is applied for by the existing licence holder, as will be the case for any short-term let transfers applied for as a result of the 2024 Order). 5.13 However, the current transfer application fees under the 2005 Act have not been increased since that Act came fully into force in 2009. Having considered the likely amount of work to transfer a short-term let licence, officers recommend £80 as a proposed fee for an application for transfer of a short-term let licence. 6. Recommended Changes to the Scheme of Delegated Functions 6.1 The changes made by the 2024 Order are likely to necessitate minor changes to the Council’s Scheme of Delegated Functions. While officers recognise that changes to the Scheme can only be made by Council, the Board is asked to recommend the following changes to the Scheme to Council: (i) Revisal of the existing delegated power, numbered 57, in Section E of the Scheme of Delegated Functions to the following- “57. With the Managing Solicitor (Licensing) and the Managing Solicitor (Litigation & Advice), and Senior Solicitor (Litigation and Regulatory
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Services), and in consultation with the Convener of the Regulatory Functions Board, to grant an exemption from the requirement to obtain a short-term let licence in relation to a specified property or properties and during no more than three periods within a calendar year not exceeding a total of six weeks, in terms of Paragraph 1A of Schedule 1 to the Civic Government (Scotland) Act 1982, as modified, in exceptional circumstances where an influx of large numbers of visitors is likely to require increasing accommodation capacity within Renfrewshire due to sporting, cultural or other events or festivals of national or international significance, or due to an emergency situation of similar significance.” (ii) Additional delegated powers to the Head of Corporate Governance, Managing Solicitors and Senior Solicitor (Litigation and Regulatory Services), as follows- “To grant applications for a provisional short-term let licence and confirmation of these licences, in terms of Paragraphs 7A and 7B of the Civic Government (Scotland) Act 1982, as modified by the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022 as amended”; “To extend the period of a provisional premises licence where it cannot be confirmed within three years after the date on which it was issued, in terms of Paragraph 7A(7) of the Civic Government (Scotland) Act 1982, as modified by the Civic Government (Scotland) Act 1982 (Licensing of Short- term Lets) Order 2022, as amended”; and “To grant applications for transfer of a short-term let licence made by a short- term let licence holder in terms of Paragraph 9A(7) of Schedule 1 to the Civic Government (Scotland) Act 1982, as modified by the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022, as amended”. 7. Further Steps 7.1 In addition to the matters set out above, officers will arrange for the development of further online application forms for provisional licences, confirmation and transfers, once the fees for these applications have been agreed by the Board. The new online forms will require to be developed with the assistance of the Customer Service and Digital Experience team. Officers will investigate also whether any upgrades are required to the electronic licensing system used for the processing of applications by the licensing team as a result of the changes. 7.2 Separately, officers will write out to licensed hosts/ operators of short-term lets regarding the further conditions of licence which now apply, as set out at Paragraph 4.5, above. They will also arrange for the short-term lets licensing page of the Council’s website to be necessarily updated, in light of the new legislation and such fees/ changes as may be agreed by the Board.
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8. Additional Information 8.1 The Board may wish to note that the licensing of short-term lets across Scotland continues to be monitored by Scottish Government. The Council, as with other licensing authorities, provide regular updates to the Scottish Government on various matters, including numbers of applications for short- term let licences received and decisions made on these applications. 8.2 The Scottish Government in August this year published an Implementation Update on short-term let licensing. This is available at: https://www.gov.scot/publications/short-term-licensing-implementation- update-report-2024/documents/ 8.3 They have also published further guidance documents, for both hosts/ operators and licensing authorities, which can be accessed at the below links. https://www.gov.scot/publications/short-term-lets-scotland-licensing-scheme- part-1-guidance-hosts-operators-4/ https://www.gov.scot/publications/short-term-lets-scotland-licensing-scheme- part-2-supplementary-guidance-licensing-authorities-letting-agencies- platforms-4/ It is understood that the guidance will continue to be kept under review with possible updated guidance published in due course. _____________________________________________________________ Implications of the Report 1. Financial – Where applications for provisional licences, confirmation and transfer are received, some income will be received by the Council as licensing authority, but it should be noted that licensing fees are charged on a cost recovery basis. 2. HR & Organisational Development - Nil 3. Community/Council Planning – • Our Renfrewshire is safe – the continued monitoring and improvement of licensing processes to ensure the safety of Renfrewshire residents. 4. Legal – As detailed in the report. The Civic Government (Scotland) Act 1982 (Licensing of Short-Term Lets) Amendment Order 2024 sets out changes to the licensing regime which the Council is required by law to operate. Under the Civic Government (Scotland) Act 1982, the Council charges fees for licence applications on a cost recovery basis. 5. Property/Assets – Nil. 6. Information Technology – There is a requirement for assistance from the Customer Service and Digital Experience team for the development of online application forms to support the new legal processes introduced. Some
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upgrades may be required to the electronic licensing system which is provided externally. These will be required as a result of the new legislation, as the Council requires to implement the new provisions. 7. Equality & Human Rights -The Recommendations contained within this report have been assessed in relation to their impact on equalities and human rights. No negative impacts on equality groups or potential for infringement of individuals’ human rights have been identified arising from the recommendations contained in the report, as it seeks to advise the Board on the implementation of recent changes to legislation and to obtain authority on the level of fees payable for the statutory licensing process, minor changes to an existing policy and associated matters. If required following implementation, the actual impact of the recommendations and the mitigating actions will be reviewed and monitored, and the results of the assessment will be published on the Council’s website. 8. Health & Safety – Nil 9. Procurement – Nil 10. Risk – Nil 11. Privacy Impact – Nil 12. Climate Risk – Nil 13. Children’s Rights – the recommendations in the report are not considered to be incompatible with the UNCRC. 14. Cosla Policy Position - Nil ____________________________________________________________ List of Background Papers Background Paper – None _____________________________________________________________ Author: Douglas J. Campbell, Managing Solicitor (Licensing), 0141-487-1096 douglas.campbell@renfrewshire.gov.uk
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APPENDIX 1 Revised Policy on Temporary Exemptions 9. Temporary Exemptions 9.1 The Council requires under the modified provisions of the 1982 Act to publish, and keep under review, a policy statement in relation to its functions relating to Temporary Exemptions. 9.2 The Council, as licensing authority, may, but is not required to, grant a temporary exemption from the requirement to obtain a short-term let licence in relation to a specified property or properties if, in one calendar year, there are no more than three separate periods of temporary exemption for that property or properties and the total period of temporary exemption is six weeks or less. In order to do so, the Council may consult the chief constable and the Scottish Fire and Rescue Service. The Council is also empowered, in granting any temporary exemption, to attach conditions to that exemption. 9.3 The Council requires to publish its first policy statement on temporary exemptions on or before 1st October 2022 and on or before the same date every three years thereafter. The policy statement must be made available on the Council’s website. In preparing/ reviewing their policy statement, the Council must consult with such persons as they consider appropriate. In preparing its policy statement in advance of 1st October 2022, the Board consulted the parties as already set out at Paragraph 1.1 above. The Board agreed a revised policy regarding temporary exemptions with limited changes in November 2024 to reflect legislative amendments made by the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Amendment Order 2024 9.4 Following consultation, the Board has agreed that temporary exemptions will be able to be granted in Renfrewshire in certain circumstances. The Board has agreed that a temporary exemption may be suitable for granting in exceptional circumstances where an influx of large numbers of visitors is likely to require increasing accommodation capacity within Renfrewshire due to sporting, cultural or other events or festivals of national or international significance, or due to an emergency situation of similar significance. 9.5 The fee chargeable for a Temporary Exemption is currently £105 (originally £100). This may change slightly during the period of this policy being in place where fees are reviewed generally by the Council, so those interested in seeking a Temporary Exemption should check the current fee within the Civic Licensing Fees section of the Council’s licensing web pages). The Council will consult Police Scotland and Scottish Fire and Rescue Service in relation to these applications, but considers that, as this is a simpler process than an application for a licence, this lower fee should be charged in comparison to the licensing application fees for short-term lets.
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9.6 Applications for temporary exemptions will be determined by Council officers in consultation with the Convener of the Regulatory Functions Board, taking into account whether the application meets the above requirements of this policy at Paragraph 9.4 and any representations received from Police Scotland and/ or Scottish Fire and Rescue Service. 9.7 The Council will seek to make a decision on a temporary exemption application within a period of two months but will seek to prioritise applications received at shorter notice due to unforeseen circumstances. Where the Council grants a Temporary Exemption, it will do so subject to the same conditions of licence applicable to licensed short-term lets, including both the mandatory and additional conditions published on the Council’s licensing web pages. A unique temporary exemption number will also be provided to the applicant. 9.8 Where an application for a Temporary Exemption is refused, the applicant is entitled to seek written reasons and should seek their own independent legal advice if they are considering whether to appeal the decision to the sheriff.
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APPENDIX 2 Summary of Proposed Provisional Licence and Confirmation Application Fees Type of Licence Bedrooms Provisional Confirmation Home Sharing 1 £171 £192 Home Sharing 2 £239 £229 Home Sharing 3 £239 £229 Home Sharing 4 or more £239 £229 Home Letting 1 £171 £192 Home Letting 2 £239 £229 Home Letting 3 £239 £229 Home Letting 4 or more £239 £229 Home Sharing/ 1 £171 £192 Letting Home Sharing/ 2 £239 £229 Letting Home Sharing/ 3 £239 £229 Letting Home Sharing/ 4 or more £239 £229 Letting Secondary 1 £546 £394 Letting Secondary 2 £614 £431 Letting Secondary 3 £683 £467 Letting Secondary 4 or more £751 £504 Letting