Approved after revision by the Licensing Committee on Monday 26 September 2022.

North Ayrshire Council are the "Licensing Authority" under the Civic Government (Scotland) Act 1982. That Act regulates the licensing of many activities which are not covered by

• the Alcohol Licensing legislation (the Licensing (Scotland) Act 2005, or
• the Landlord Registration scheme (the Antisocial Behaviour etc. (Scotland) Act 2004, Part 8)
• the Gambling Act 2005;
• the statutes regulating activities involving animal

The 1982 Act covers several activities, including the operation and driving of Taxis and Private Hire Cars, Street Trading and Markets, and Public Entertainment.

On 1 October 2022 this list will extend to a further activity: the operation of a Short-Term Let. This is as a result of a change in the Law which applies across Scotland, and Councils have no choice about:

• whether or not the new system should apply in their areas at all, or
• whether it should apply throughout the Council area or only in certain parts.

This document:

• sets out the Council's approach to the regulation of STL, and
• explains the processes to be followed relating to applications for licences of this kind

The Council recognise that there are several objectives which the STL Licensing scheme should seek to achieve, and that the scheme should balance several factors:

• protecting public safety
• securing compliance with Licence Conditions
• treating complaints both from Guests and neighbours effectively
• limiting Hosts' costs and their administrative burden in having to repeatedly re-apply for Licences
• limiting the Council's regulatory burden in inspecting and monitoring

Accordingly the Council will adopt a risk-based STL system where risk assessments will influence several aspects of the scheme. The general approach of the Council is 'light touch'

For example, although Licences will normally be granted for the 3-year maximum permitted by Law, the position will be different when the Council are later asked to renew the Licence. The Council could time-limit a renewal but would start with the presumption that the renewed licence might be without limit of time.

Instead, there would be an extra condition - that at the time of applying for renewal and at 10-year intervals forever after, the Host should pay the equivalent of the renewal fee as a 'recurring fee'.

This is similar to the arrangement which already operates for alcohol-licensed premises like pubs, restaurants and shops: the Licence is granted 'forever', but the Premises have to pay an Annual Fee each October, and the Licensing Board will only deal with the particular Premises again if:

• there is a complaint (leading to a Review Hearing)'
• the Licence-Holders themselves request a change to the Licence, such as a variation of hours, capacity etc. or a Transfer on the sale of the business, or
• the Licence-Holders don't pay the Annual Fee (the Board might give them more time, but eventually they'll probably revoke the Licence).

So if a STL Host observes the Licence conditions, complies with the legislation, and pays the 'recurring fee', there would be no need:

• for the Host to incur every few years the time and expense of re-applying, or
• for the Council to process the application,

but (as with most other kinds of Licence) there would still be the possibility of review action if there was a complaint.

See Annexes:

• D - Licence Duration
• E - Enforcement
• F - Better Regulation
• G - Existing Hosts
• H - NAC Confirmation for Existing Hosts
• J - Fees

for more information.

This Policy provides guidance for potential Licence applicants and members of the public on the licensing of STL within North Ayrshire. In producing this Policy Document the Committee have taken into consideration the Scottish Government’s Short Term Lets in Scotland Licensing Scheme Guidance published on 18 March 2022.

Guidance is in two parts:

• Part 1: Guidance for Hosts and Operators
• Part 2: Supplementary Guidance for Licensing Authorities, Letting Agencies and Platforms

The 1982 Act is published on the Governments legislations website.

This Policy Statement document often refers to Schedule 1 ("Licensing—Further Provisions as to the General System") which is set out at the end of the 1982 Act. This sets out the procedural rules for most Licensing functions under the 1982 Act.

The Order which adds STL Licensing to the 1982 Act is 'The Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022, No. 32'.

This Order is referred to in this document as the "STL Order".

The new Licensing system will apply throughout North Ayrshire. There are some STLs which do not need Licences (see Part 12 - "STL Exemptions" below).

The STL Order introduced a licensing scheme for STL and requires all STL to be licensed by 1 April 2024. Prior to the introduction of the 2022 Order, there was no requirement to license STLs in Scotland.

Many of the rules apply differently depending on whether you are a 'New Host' or an 'Existing Host'.

• 'Existing Host' - if you are already using these Premises as a Short-Term Let;
• "New Host" - you have not used these Premises as a Short-Term Let

North Ayrshire Council have special procedures to assist Existing Hosts - see Annexes

• G - Existing Hosts
• H - NAC Confirmation for Existing Hosts

You will be treated as a New Host:

• if you have used these Premises as a Short-Term Let in the past but are not so using them on the date of your Application
• if you are using, or have used, other Premises as a Short-Term Let but you are not currently using the Premises covered by the Application as a STL

This description of the Licensing process in NAC applies to everything the Licensing Committee are responsible for (such as the operation and driving of Taxis and Private Hire Cars, Street Trading and Markets, Public Entertainment and - from 1 October 2022 - the operation of a Short-Term Let).

The Licensing functions of NAC are carried out by the Licensing Committee, which is a Committee of Elected Members. The Council have a "Delegated Powers" arrangement, which authorises the Clerk to the Licensing Committee and other officers in the NAC Licensing Section to grant Licence Applications without reference to the Licensing Committee if:

(a) there are no Objections, adverse Representations or adverse consultation responses made by any of:

• Police
• Scottish Fire and Rescue Service (SFRS)
• North Ayrshire Council Departments
• Members of the public

(b) the Application does not breach any North Ayrshire Council policy.

For example, over 90% of Applications for Taxi Driver's Licences are granted under Delegated Powers only a few weeks after the Applications are lodged with NAC, and never need to be considered by the Licensing Committee.

We expect that the position with Applications for STL Licences will be similar, and that the most Licence Applications will be dealt with under Delegated Powers.

If we have one or more of:

• Objections,
• Representations which we consider to be adverse to your Application, or
• an issue with NAC Policy,

your case must be referred to the Licensing Committee (as it is now outside "Delegated Powers"). The Licensing Committee will decide if your case needs a Hearing. If there is a Hearing then you will be invited to attend, and if you cannot attend then you are entitled to send NAC written representations (by letter or email).

The Committee meet in Council Chambers at Cunninghame House, Friars Croft, Irvine. For many months during the Coronavirus Emergency the Committee met remotely, using video-conferences where licence applicants dialled-in, but now the Committee are meeting in-person, as they did before Coronavirus.

The Council have to consider the potential reasons for refusal set out in 1982 Act, Schedule 1, Paragraph 5(3) which are (briefly) that the Licensing Authority consider that:

• the Applicant is not a 'fit and proper person'
• the Premises are not suitable for their proposed use
• there is another good reason for refusing the Application (for example, because of previous breaches of legal requirements).

Following usual practice, any Hearing of your case will be in private following a Resolution made under Local Government (Scotland) Act 1973, Section 50A(4), so the only people present will be:

• you
• representatives of the Police/SFRS/NAC Departments
• any members of the public who have made Objections or Representations.

You are entitled to be present and to be represented by a Solicitor or Advocate. If you do not intend to be present or represented, you can send a written statement of your position. You should ensure that this statement arrives at the Licensing Section before 12 noon on the last business day before the Committee date. Email the Licensing Team on licensing@north-ayrshire.gov.uk.

We advise you to set 'delivery receipt' or equivalent before you send your email.

Please note that although you are free to obtain independent legal advice and representation, the Council will not pay for either.

If you do not attend, are not so represented, and do not send a statement:

1. The Committee may still deal with the case,

2. The Sheriff is likely to reject any Appeal (1982 Act, Schedule 1, Paragraph18(2))

Some of the same rules apply to the members of the Licensing Committee dealing with STL Licensing as in any other kind of licensing: Members of the Committee must take account of the terms of the Councillors’ Code of Conduct published by the Standards Commission for Scotland which sets out the need to ensure:

• that there is a proper and fair hearing for all regulatory decision making and
• that there is no suggestion of pre-judging or bias in the consideration of any applications before the Committee.

Members of the Committee may declare an interest and choose not to participate in the decision-making of any licensing matter in respect of which they have had any prior involvement either personally or in their capacity as a Councillor if they feel that such prior involvement would compromise their impartiality.

A "Short-Term Let" means:

• the use of residential Accommodation,
• provided by a Host,
• in the course of business to a Guest,
• where the Short-Term Let is entered into for Commercial Consideration,

The definition above applies except where any of the "STL Exemptions" apply (see Part 12 - "What are the STL Exemptions?" below).

The STL Order defines “Type of Short-Term Let” as one of the following purposes:

1. Secondary Letting,

2. Home Letting,

3. Home Sharing, or

4. Home Letting and Home Sharing.

(Definition in STL Order, Schedule 3, Paragraph 18)

This definition is important because your Licence will state one of these - (a) to (d) - and you can only use the Premises for that purpose. This is because one of the Mandatory Conditions of the STL Licence is:

"2. Type of licence

1. The Holder of the Licence may only offer the Type of Short-Term Let for which the licence has been granted." (STL Order, Schedule 3, paragraph 2)

There are further definitions in paragraph 18:

"means a Short-term let consisting of the entering into of an agreement for the use of Accommodation which is not, or is not part of, the licence holder's only or principal home"

"means a short-term let consisting of the entering into of an agreement for the use, while the Host is absent, of accommodation which is, or is part of, the host's only or principal home"

"means a short-term let consisting of the entering into of an agreement for the use, while the host is present, of accommodation which is, or is part of, the host's only or principal home"

• Home Sharing and Home Letting concern the use of the host's only principal home.
• Secondary Letting does not relate to the use of the host's principal home.

The application form will ask you to confirm what "Type" of STL Licence you are applying for. You must select one of the above types of the licence.

Any STL Licence anywhere in Scotland has the "Mandatory Conditions" set out in STL Order, Schedule 3. These conditions apply automatically to all Licences in Scotland, and NAC cannot change them. See Annex C - "Mandatory Licence Conditions" for more information.

As well as the national Mandatory Conditions, each Licensing Authority are also able to attach "Standard Conditions" to 1982 Act Licences. In STL Licensing, these are also called "Additional Conditions" - see part (b) of this Section, below.

Breach of a licence condition, whether a Mandatory Condition or a Standard Condition can be enforced, and may lead to one or more of:

• Prosecution
• Revocation or Suspension of the Licence
• Variation of the Licence
• "Enforcement Notice" served on the Licence-Holder

See Annex E - "Enforcement" for more information.

With two exceptions, NAC do not intend to apply any Standard Conditions to STL Licences.

North Ayrshire Council have decided to apply the "template additional condition" set out in the Scottish Government Guidance (Paragraph 5.33):

"1. The licence holder must provide adequate information on, and facilities for, the storage, recycling and disposal of waste.

2. The licence holder must advise Guests of:

• their responsibilities;
• the use of the bins/sacks provided for the premises; and
• the location of the nearest recycling centre or recycling point.

3. The licence holder must:

• clearly label bins as belonging to the premises;
• ensure that Guests manage their waste in compliance with (2), including when they depart; and
• maintain the bin storage area and the exterior of the premises in a clean and tidy condition."

The exception is the "recurring fee" condition for renewed Licences. If a licence is renewed 'without limit of time', it will have an additional condition requiring payment of a "recurring fee" both:

• at the time of applying for renewal, and;
• every ten (10) years afterwards.

If the most recent decision of the Council has been:

• to grant a Licence for the Premises or
• to renew the Licence for a fixed period

There is no recurring fee.

If a recurring fee is not paid when it is due then the Council can revoke your Licence.

One of the mandatory conditions that is attached to all STL licences is that the licence holder must ensure that the number of Guests residing on the premises does not exceed the number specified in the licence: this is the "Maximum Capacity".

The Maximum Capacity you apply for will affect the fee you have to pay, so it's in your interests not to apply for a high capacity if there's a possibility that we might set a lower limit - you might end up paying a higher fee, but it would not be refunded or reduced.

We will look at your application form and your Layout Plan, and will follow any guidance issued by Scottish Fire and Rescue or the Council's Housing or Protective Services Departments.

Children under 10 years of age are not counted when calculating the Maximum Capacity.

All grant applications will ask you to say how many Guests you want to accommodate in the premises.

We will not expect you to state this this when you apply for renewal as we will assume that:

• the Premises already offer the same accommodation as before, and so
• you are applying for the same Maximum Capacity as Licence already allows,

unless you specify a different figure or your Licence has previously been changed to a different capacity.

If you want to change the Maximum Capacity:

• when you apply for renewal, you should complete that part of the application form
• at any other time apart from renewal: you should apply to us for 'consent for a material change' (in NAC we call this an "Amendment", but other Councils might have a different name). There is no form for this and a letter will do. There is a fee: see Annex J - "Fees"). The Law is in 1982 Act, Schedule 1, Paragraph 9(2).

Either way, you should give us information to support your request, for example a new Layout Plan showing that the accommodation has been expanded.

There is no need for a STL Licence if any of these apply:

1. the Guest uses the Accommodation as their only or principal home (if they do, there might be a need for Landlord Registration with the Council under separate legislation, so the Host should check with NAC to see if Landlord Registration is needed),

2. the Guest is an Immediate Family Member of the Host (see Part 13 - "What is the 'Immediate Family Member' exemption?"),

3. the Guest is sharing the Accommodation with the Host for the principal purpose of advancing the Guest’s education as part of an arrangement made or approved by a school, college, or further or higher educational institution, or

4. the Guest is an owner or part-owner of the Accommodation,

5. the Accommodation is provided for the principal purpose of facilitating the provision of work or services by the Guest to the Host or to another member of the Host’s household,

6. the Accommodation is Excluded Accommodation (see Part 14 - "What is 'Excluded Accommodation'?"); or

7. the Short-Term Let is an Excluded Tenancy (see Part 15 - "What are 'Excluded Tenancies'?").

The Council cannot provide legal advice on whether or not premises are excluded from requiring a STL licence. Owners should take their own independent legal advice on this.

You do not need a STL Licence if the Guest is an Immediate Family Member of the Host.

There are further definitions in the legislation of "Qualifying Relationship" and "Qualifying Relative".

No STL Licence is needed if the position is (a), (b) or (c):

The Guest and the Host are:

1. married to each other,
2. in a civil partnership with each other, or
3. living together as though they were married,

The Guest and the Host are related as:

• parent - child
• grandparent - grandchild or
• sibling - sibling
• step-parent - step-child

where:

• two people are to be regarded as siblings if they have at least one parent in common,
• a person is to be regarded as the child of another person, if the 'child' is being or has been treated that person's child

The exemption also extends to situations where the Host and the Guest are connected through a combination of "Qualifying Relationship" and "Qualifying Relative".

This is defined in Paragraph 1 of Schedule 1 to the STL Order. There are many examples of Excluded Accommodation, including:

(a) an Aparthotel,

(b) Premises with a Premises Licence under the alcohol licensing legislation (the Premises covered by an unconfirmed "Provisional Premises Licence", or by an "Occasional Licence", would not be "Excluded Accommodation"),

(c) a hotel which has Planning Permission granted for use as a hotel,

(d) a Hostel,

(e) a Refuge,

(f) a Bothy, or

(g) Accommodation owned by an employer and provided to an employee in terms of a contract of employment or for the better performance of the employee’s duties.

This is defined in Paragraph 2 of Schedule 1 to the STL Order. There are many examples but what they have in common (with one exception) is that they are already regulated under other legislation (it is common for licensing statutes to be worded like this to avoid duplication). An example is the 'Private Residential Tenancy'. The exception is the "Student Residential Tenancy".

The Licensing Authority may, on application, grant an exemption from the requirement to obtain a Short-Term Let Licence in relation to a specified property or properties and during a specified period (which must not exceed 6 weeks in any period of 12 months). (1982 Act, Schedule 1, Paragraph 1A, as added by STL Order, Schedule 2, Paragraph 6).

NAC have elected not to grant exemptions in any case, with one exception (1982 Act, Schedule 1, Paragraph 1A(4)). The reason for this policy is that the STL Licensing legislation has been introduced to maintain safety standards and prevent nuisance, so the Committee consider that it is not appropriate to grant temporary exemptions - apart from a single exception.

The exception is that where a Host undertakes in writing:

(a) that the specified Premises will cease to be used as a STL of any "Type of Short-Term Let" at the end of the shorter of these periods:

• six (6) weeks from the date of Application for a Temporary Exemption, or
• from the date of Application until 31 March 2023, and

(b) will not be used for a period of twelve (12) months after that end date (unless a STL Licence has been granted),

the Licensing Authority will entertain that Application.

The fees chargeable for a Temporary Exemption application are set out in Annex J - "Fees". The time period within which the Licensing Authority will reach a final decision on a temporary exemption application is six (6) months after the application. Hosts wishing a Temporary Exemption should apply with this processing time in mind. The Council may inspect the Premises before deciding whether or not to grant the Temporary Exemption, and may attach conditions to it (1982 Act, Schedule 1, Paragraph 1A(3)).

This is the Statement of Policy required by 1982 Act and is effective on 1 October 2022. It will be reviewed every three (3) years afterwards (1982 Act, Schedule 1, Paragraph 1A(4)-(6)).

In general, the 1982 Act allows (but does not oblige) a Licensing Authority to grant a Temporary Licence (1982 Act, Schedule 1, Paragraph 7). For example, fairgrounds and short-term markets lasting only a few days often use Temporary Licences.

Temporary Licences follow a shortened version of the procedure which applies to 'full' applications.

There are two types of Licence under the 1982 Act:

[a] Full Licence

[b] Temporary Licence

This lasts up to 3 years, and is renewable indefinitely. An example would be a permanent fairground (as well as Licences for business activities, such as driving and operating taxis). The procedure is set out in Schedule 1 to the Act, and includes:

• a requirement to display a site notice for 21 days, to alert the public to the proposal and to inform them of their right to make state objections and representations (Paragraph 2(2)); the site notice is displayed at or near the Application Premises (if there are any), and is often tied to a lamppost or railings;
• a procedure for third parties to state objections and representations (Paragraph 3);
• a right of appeal to the Sheriff by the unsuccessful Applicant or third party (Paragraph 18).

This lasts a maximum of 6 weeks, although it is often requested for only a few days. It is not renewable. A common example is a temporary fairground. The procedure is also set out in Schedule 1, but this is substantially modified by Paragraph 7:

• there is no requirement to display a site notice (as Paragraph 2(2) is disapplied by Paragraph 7(3));
• there is no procedure for third parties to state objections and representations (as Paragraph 3 is disapplied by Paragraph 7(3));
• there is no right of appeal to the Sheriff (as Paragraph 18 is disapplied by Paragraph 7(5)).

Given the considerations below, the Licensing Authority will not entertain applications for Temporary STL licences.

(i) Lack of full consultation

One of the objectives in introducing the STL Licensing scheme was to allow Councils to control the concentration of STL premises as they can be the source of nuisance suffered by neighbours. Therefore the neighbours were given the 'full licence' rights to know about STL proposals and to state their views. The Licensing Authority do not think it is appropriate to defeat one of objectives in introducing the STL Licensing scheme by allowing Hosts to circumvent neighbours' rights by applying for Temporary Licences.

(ii) Safety and suitability

The STL Licensing legislation has been introduced to maintain safety standards and prevent nuisance. This implies that the Council should have an opportunity to inspect Premises which seek Licences to assess whether or not they are suitable and safe for their proposed use. The short time-scales commonly associated with Temporary Licences (which also lead to a lack of full consultation) may mean that the Council have only a few days or weeks to make a decision before the Licence is proposed to take effect - so it is likely to be impossible for the Council to carry out an appropriate assessment in the short time available.

Before you apply for a STL licence of any Type, you should check that you can comply with the Mandatory Conditions attached to the STL licence (see Annex C - "Mandatory Licence Conditions"). You should give particular attention to:

• Part 10(b) above (the Licence condition about waste disposal: heading "The first exception")
• Part 19 ("What information do I have to give Guests?")
• Part 20 ("What do I have to put in listings or adverts?")
• Annex L - What documents do I have to give Guests?

Annex L details the Mandatory Conditions ("MC") which require Hosts to have various documents, and this includes headings:

"MC 15: Insurance"

"Tenement insurance - the 'Prescribed Risks' "

MC 15 is:

"15. The Holder of the Licence must ensure that there is in place for the Premises—

(a) valid buildings insurance for the duration of the licence, and

(b) valid public liability insurance for the duration of each Short-Term Let agreement." Hosts are advised to review their insurance policies to check that they, their Guests, and their Guests' property are covered. The Council have no involvement in this.

One of the Mandatory Conditions your Licence has automatically is Condition 12 ("Information to be displayed"). This requires the licence-holder to provide documentation to Guests:

"12. The Holder of the Licence must make the following information available within the Premises in a place where it is accessible to all Guests—

(a) a certified copy of the licence and the licence conditions,

(b) fire, gas and electrical safety information,

(c) details of how to summon the assistance of emergency services,

(d) a copy of the Gas Safety Report,

(e) a copy of the Electrical Installation Condition Report, and

(f) a copy of the Portable Appliance Testing Report."

See Annex L - "What documents do I have to give Guests?".

You also have to give the Guests information about waste disposal (see Part 10(b) above - the Licence condition about waste disposal: heading "The first exception").

The Licensing Authority or Civic Licensing Standards Officer may ask to see these documents. Failure to produce or have all the documents required may result in an Enforcement Notice being issued or the STL Licence being suspended or revoked.

This is covered by Mandatory Condition 14(1):

"14.—(1) The Holder of the Licence must ensure that any listing or advert (whether electronic or otherwise) for the Short-Term Let of the Premises includes—

(a) the licence number, and

(b) a valid Energy Performance Certificate rating if an Energy Performance Certificate is required for the Premises, in accordance with the Energy Performance of Buildings (Scotland) Regulations 2008."

(a) the licence number is the number which the Council will give to your case and will be on all correspondence from us (This is called the “Unique Licence Number” - see Annex M - "Unique Licence Numbers");

(b) The "Energy Performance Certificate" (see Annex L - "What documents do I have to give Guests?", heading "Energy Performance").

The Licensing Authority recognise the importance of having compliance issues monitored in order to ensure Licensed STLs are not causing an unnecessary nuisance to the community, nearby residents or neighbours. As such they will carry out a risk-based approach to enforcement, with the Civic Licensing Standards Officer using a range of escalating informal measures, prior to an Enforcement Notice being issued and subsequently a complaint being made to the Committee in relation to the STL Licence inviting the Committee to consider holding a Hearing as to the possible revocation or suspension of the STL Licence.

It is essential that Licensed STLs are operated in accordance with the 1982

Act and the licence conditions. However the general approach of the Council is 'light touch' (see Annex F - "Better Regulation").

Accordingly the Enforcement procedures under the 1982 Act are to be seen as a last resort, where problems relating to the operation of a STL cannot be resolved amicably by the licence holder and the complainer, possibly with the Council's Civic Licensing Standards Officer or other Council officers acting as mediators.

If the Council consider that a problem exists but that the Host can fix it, they should be given a chance to do so.

In the first instance, the Licensing Authority would expect any concerns from Guests to be raised with the Host or operator and only where this cannot be resolved should they contact the Licensing Authority.

Similarly, in the first instance the Licensing Authority would expect concerns from neighbours to be raised with the Licence Holder, and only where these cannot be resolved should the neighbours contact the Licensing Authority. See the webpage for our Licensing Board.

Under the heading "Objections and Complaints about Licensed Premises".

The Licensing Board deal with licences for alcohol-selling Premises, like public houses, restaurants and off-sale shops, and the Board sometimes deal with complaints about alcohol premises which are similar to the complaints from neighbours of rented accommodation. So the documents on that webpage:

-"advice"

-"Complaint/Premises Licence review application"

will be useful. In particular the part of the second document under the heading "North Ayrshire Licensing Board/North Ayrshire Council - ASB Diary". This form is used to give details of alleged incidents of Antisocial Behaviour ("ASB") involving Licensed Premises (or rented houses).

It is a statutory requirement that the Licensing Authority maintain a public register of STL Licences. This is part of the "Licensing Register".

Listings have to show Licence Number. When you apply, we will allocate your Application a reference number.