Planning & Environment

The rapid growth in short-term lets, assisted by online accommodation platforms such as Airbnb, has led to concerns about balancing the needs and concerns of communities, with wider economic and tourism interests.

Following calls for regulatory controls, the Scottish Government has issued a consultation paper.

Planning control

Regulation is principally a planning issue at present. This is because the Planning Act requires planning permission to be obtained for a material change of use. As the consultation paper notes, there is no definition of what constitutes a material change of use requiring planning permission. It is a matter of fact and degree for the relevant planning authority to consider on a case-by-case basis.

In other words, planning permission is not necessarily required for a change of use from residential to short-term letting: it depends on the individual circumstances.

This lack of clarity makes it very difficult for landlords to identify whether planning permission is required. Although enforcement action by planning authorities has been successful, there have been 4 certificate of lawfulness appeals where Scottish Government Reporters have held that there was no material change of use.

There are also issues which cannot be regulated by planning controls, such as safety.

Planning (Scotland) Bill

The Planning (Scotland) Bill has been amended to include a clear requirement for planning permission for use of a dwellinghouse for short-term holiday lets.

The Scottish Government is supportive of the intention of the amendment, though believes that it will require amendment at Stage 3 to integrate effectively with other aspects of planning law.

Issues still to be addressed include:

  • the criteria to be applied in deciding planning applications.
  • will the new requirement to obtain planning permission apply to premises already used for short-term lets?

Future regulation

The Scottish Government intends to rely on planning control, until a new regulatory system is introduced, at which point the planning legislation can be amended/ revoked as appropriate.

The consultation paper seeks views on options for a new system:

  • A national framework, enabling local councils to establish regimes appropriate to their local needs
  • Councils would opt-in – if they do nothing, there will be no controls in that council area (except the planning permission requirement)
  • The options are:
    • registration scheme
    • licensing scheme
    • fee/ charge/ tax
  • Should there be a distinction between small scale hosts and those with property portfolios?

Responses are sought by 19 July 2019.

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar