12. Section 129A of the Housing (Scotland) Act 2006 (as added by the Private Rented Housing (Scotland) Act 2011) gives a local authority the discretionary power to refuse to consider an application for an HMO licence if it considers that occupation of the accommodation as an HMO would be carrying out development without the required planning permission or a failure to comply with a condition or limitation of an existing planning permission.
13. The ability to refuse to consider a HMO licence application is separate from any planning enforcement powers, and is not intended to be an alternative to use of those powers. Both regimes should operate together. Prior to local authorities having the ability to refuse to consider a HMO licence application, local authorities could have been faced with having to consider granting a HMO licence solely in terms of applicant and premises suitability. That had the potential to suggest that those determining the application were not concerned about breach of planning control, especially where the licensing authority was not the planning authority. A refusal to consider an application allows the licensing system to complement planning enforcement.
14. The 2011 Act also adds section 131A into the 2006 Act which gives the local authority the discretionary power under HMO licensing to refuse to grant a HMO licence if it considers that there is, or that the grant of a licence would result in, overprovision of HMOs in the locality. It is for the local authority to determine the locality.
15. Where a planning authority establishes a planning policy to manage HMO concentrations, it should ensure that it is enforced. Joint working between local authorities' planning, licensing and housing departments should allow for effective enforcement and avoid circumstances where further legal measures are required.