Short term lets continue to drive a lot of activity in the Scottish planning system. It's worth reminding ourselves of the basics, especially since the introduction of control areas complicates the situation.
Overview
The Annual Report by the Planning and Environmental Appeals Division (DPEA) sums up the position:
"significantly increased numbers of short-term let planning, enforcement and certificate of lawfulness appeals, as a by-product of the introduction of a licencing regime"
In 2023/2024, DPEA received 156 short term let appeals, compared to 58 the previous year, and only 9 in the year before that.
That is the most appeals in any one category. It is double the next highest category – householder building alterations.
As the Report acknowledges, a key factor is the introduction of the licensing regime, which generates a need to clarify the planning status of individual properties.
When is planning permission required?
Outside control areas (discussed below), planning permission is required if the short term let use is a "material change of use".
The courts have confirmed this is an issue of fact and degree, ie. it's circumstance specific. Unfortunately that leaves uncertainty for operators.
That has resulted in submission of applications for certificate of lawfulness, where the operator considers there is no material change of use, or service of enforcement notices, where the planning authority consider there has been a material change of use without planning permission.
The previous use is often residential. That makes it harder to decide whether there is a material change, as there are similarities between residential and short term let uses.
This is why the planning system is having to clarify the status of short term lets that have been operating for many years. For those properties, the change of use occurred at a time when there was no indication that the change of use might be material, so no planning permission was required (with the exception of large "party houses").
Where the change of use occurred less than 10 years ago, and was material, it is still possible for the planning authority to take enforcement action. Additionally, to obtain a short term licence, the operator might need to apply for retrospective planning permission.
If the short term let use has been carried on for a continuous period of 10 years or more, the use is lawful. No enforcement action can be taken against that use. The operator might apply for a certificate of lawfulness to confirm the position.
Where there has already been a change of use, it is easier to decide if it is material, as there is evidence of the new use. Enforcement cases normally involve complaints, which might raise issues suggesting the change is material.
Change of use not material
There are many appeal decisions concluding the change of use is material. It is interesting to look at some decisions which reached the opposite conclusion.
Rothesay Terrace, Edinburgh – this involved a ground floor flat in a predominantly residential area. Access is via a shared entrance. The previous use was residential. The average length of stay was 40 nights, so the frequency of arrivals/ departures was low. The usage pattern was therefore held to be not dissimilar to longer-term occupiers/ residents. The reporter concluded the change of use was not material, and quashed the enforcement notice that had been served against the short term let use.
Regent Square, Linlithgow – this also involved a change of use from residential. The property was in a block of 4 flats, with a common parking area and little communal space. The front door of the flat opens onto the parking area. The surrounding area is not quiet, with a mix of uses. The flat cannot be comfortably occupied by more than 2 people, so is unsuitable as a party venue. The average stays were 5.5 days, resulting in less disturbance from arrivals/ departures. The reporter therefore concluded the change of use was not material, and granted the certificate of lawfulness.
Planning permission granted
There is also a recent appeal where retrospective planning permission was granted. Rather than deciding whether the change is material, the issue was whether the use is acceptable on planning grounds. Broadly speaking, that involves taking into account the same factors, but in a slightly different way.
Stafford Street, Edinburgh – the previous use was office accommodation, so there was no loss of residential accommodation. The surrounding area is commercial in character with few residential properties. There was no evidence of complaints of noise, nuisance or anti-social behaviour arising from the use. The reporter granted planning permission.
Control areas
The position is clearer in control areas, as the use of a residential property for short term lets is deemed to be a material change of use and therefore requires planning permission. However, the Court of Session held that does not apply to changes of use before the control area was designated – it is still, however, necessary to decide whether those involved an actual material change of use.
At present, there are control zones in Edinburgh, and Badenoch and Strathspey in the Highlands. Perth and Kinross Council recently decided not to proceed with a control zone proposal.
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