The Scottish Government are consulting on proposals for regulating short term lets. Neil Collar considers the implications for the planning system.
Licensing
The main proposal in the recent Scottish Government consultation paper is that every short-term let (as defined) will require a licence from the local authority, irrespective of how few nights per year the accommodation is let or available for let. The licensing system will be rolled out between 1 April 2021 and 1 April 2022. Fiona's blog gives more details.
Licensing would apply to short term let accommodation which is all or part of a house or flat or serviced apartment. Exclusions include accommodation on the premises of a hotel or guest house; caravans, pods and mobile dwellings such as canal boats. Inevitably, there are uncertainties around formats such as aparthotels.
The consultation paper states that the licence application must confirm that planning permission (if required) has been obtained or has been applied for, that it remains current and that the planning conditions are being complied with.
While that may seem a reasonable and straight-forward requirement, the reality is that there is no clarity on what planning permission is required: as the consultation paper acknowledges, it is a "case-by-case consideration".
"material change of use"
The requirement for planning permission arises when there is a "material change of use". The ruling from the courts is that short term lets can, but do not necessarily, involve a material change of use from residential use.
The rapid growth of the short term let market has led to confusion about whether separate planning permission is required. Since the first appeal decision in August 2018, there have been approximately 50 appeals decided, mainly involving enforcement action by planning authorities. Most, but not all, have decided that permission was required in the specific circumstances of the case.
Implications for planning system
The introduction of the licensing system seems likely to increase work for planning authorities, with licensees either seeking confirmation that the existing planning permission authorises the use (which isn't necessarily clear, as mentioned above); no permission is required because the use has existed for 10+ years (which, again, can raise issues about the nature of the "use"); or applying for the necessary planning permission.
Control areas
The consultation paper also refers to commencement of the provisions in the Planning (Scotland) Act 2019 for planning authorities to designate control areas.
Unlike licensing, control areas are optional rather than mandatory. If a planning authority wants to designate a control area, the proposal is to use a similar process as designation of conservation areas: consultation and notification to the Ministers for approval.
Within those areas, the use of a house or flat or a cottage or any independent dwelling for secondary letting (where the host does not normally live) will require planning permission. This will replace the "material change of use" test (in control areas). It is unclear from the consultation paper whether the requirement excludes properties which already benefit from planning permission or lawfulness through the 10 year use rule.
Only general guidance is provided on determining an application for planning permission:
"… it would be open to individual planning authorities to consider the inclusion of policies relating to short-term lets in their relevant local plans. Whether or not the various adverse impacts that have been cited are material planning matters in respect of any individual application, and what weight to attach to them in considering the application, would continue to be assessed on a case-by-case basis within a control area."
Within control areas, the consultation paper also indicates:
• No planning permission will be required for the property to revert back to residential use
• Planning permission will be granted for 10 years, with the power for the planning authority to specify a shorter or longer period
• Permitted development rights for 28 days temporary use will be removed for secondary letting
Comment
The uncertainties around the planning status of short term lets seem likely to continue to cause problems even after the introduction of the licensing system and control areas.
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