Planning & Environment

Short term lets continue to cause controversy (The Times, 6 Aug 2019). What will the Planning (Scotland) Act 2019 do to regulate this activity?

Requirement for Planning Permission

As discussed in Neil Collar’s blog of 20 May 2019, (Short Term Lets) 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.  Some appeals have been upheld on the grounds that there was no material change of use.

 

The 2019 Act

Section 17 of the Act empowers planning authorities to designate all or part of its areas as ‘short term let control areas’. The idea being that planning permission will be required where a dwellinghouse situated within a control area is to be let out on a short term basis.

As this is a power rather than a requirement, it provides flexibility for planning authorities to decide whether a control area is required in their district.

The Act falls short of defining what constitutes a short term let, but excludes private residential tenancies under Section 1 of the Private Housing (Tenancies) (Scotland) Act 2016, and tenancies where all or part of the dwellinghouse is the only or principal home of the landlord or occupier.

 

Regulations

The Act gives Scottish Ministers the power to make further provisions by regulation, including:

  • Procedures for making, varying or cancelling a designation;
  • The form of designation;
  • What constitutes providing a short term let; and
  • Any circumstances in which, or descriptions of dwellinghouse to which, the designation will not apply.

 

Scottish Government Consultation

Simultaneously, a Scottish Government Consultation seeking views on the regulation of short term lets closed to responses on 22 July 2019, and there have been a number of widely-publicised responses from industry bodies indicating what they believe to be the best approach for future regulation.

Shelter Scotland voiced a view that stronger regulation and licencing should be imposed on ‘whole property hosts’ as opposed to hosts renting a spare room or part of a property.  They argue that this has the potential to limit whole properties being let and will serve to protect other occupants in the neighbouring units who have been the victim of noise and antisocial behaviour by frequent guests.

Similarly, Scottish Lands & Estates (SLE) believes that any licensing scheme introduced should limit whole homes let out for more than 140 days per year in areas where there is a housing shortage.  They also warned that a ‘one-size-fits-all-approach’ to regulation could penalise self-catering businesses in areas which do not have substantial housing supply or anti-social behaviour issues, thus posing a risk to rural tourism.

SLE would like any future regulation to distinguish between those run as businesses and those run part-time on an amateur basis. They would also like to see different property types, such as tenement flats and detached houses, treated separately in terms of regulation.

 

Next steps

Although the Act has received Royal Assent, Section 17 is yet to be commenced.  An announcement is expected from the Scottish Ministers in September about implementation of the Act.  It remains to be seen whether commencement of Section 17 will be delayed pending the outcome of the wider consultation exercise.

 

Update 30 September 2019:

The Scottish Government has now issued its Post-Bill Work Programme, Transforming Planning in Practice.

This confirms that Scottish Ministers’ intention is to take forward immediately their plans for regulation of the short term let sector, with the aim to have regulations in place by December 2020.

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Hannah Darnell

Solicitor at Brodies LLP
Hannah is a newly-qualified Solicitor in the Aberdeen planning team at Brodies LLP, and performs a supporting role assisting her mentor, Elaine Farquharson-Black, but also the wider planning and real estate teams. This provides Hannah with exposure to a variety of planning issues across Scotland.
Hannah Darnell
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