A licence for short-term letting will be refused if the necessary planning permission is not in place. However, it is not straightforward to identify if planning permission is required.
Short-term lets
STLs are residential accommodation provided by a host in the course of a business to a guest, providing certain criteria are met (e.g. it is not the guest's principal home or it is not purpose-built student accommodation). There are also a number of exceptions (e.g. hotels are not classed as STL).
Despite the legal definition, there is a considerable amount of uncertainty over whether some types of accommodation qualify as short term lets given the varying types of accommodation and the different circumstances in which they are provided.
The new licensing system
The Scottish Government introduced a licensing system for STL in Scotland. From 1 October 2022, anyone in Scotland granting a STL for the first time must have a licence before doing so. By 1st October 2023, those who were already granting STLs before 1 October 2022, must have applied for a licence if they wish to continue doing so. A licence is issued by the local authority for the area in which the property is located but that may not be enough.
As well as a licence, planning permission may also be needed, depending on a number of factors including the location of the property, its type, and its long-term use.
Short-term let control areas
If the property is in a short-term let control area, apart from limited exceptions, planning permission will be needed. A STLCA is an area designated by the local authority with the permission of the Scottish Ministers as an area in which the use or change of use of a dwellinghouse for the purpose of providing STL is deemed to involve a material change of use and therefore requires both a licence and planning permission.
The Scottish Ministers have confirmed that the designation of a STLCA does not act retrospectively: where the change of use to a STL took place before the designation of the control area, the normal rules apply (below). Therefore hosts operating prior to 1 October 2022 do not automatically require planning permission because of the designation.
So far, the whole of the City of Edinburgh was the first area to be designated as a STLCA. Highland Council recently agreed that the Badenoch and Strathspey STLCA will commence on 18 June 2023.
Material change of use
In all other parts of Scotland which are not designated as control areas, planning permission is not necessarily required for a change of use to short-term let accommodation. This will depend, like any other use change, on whether the STL use amounts to a material change of use. Individual facts and circumstances of each case will be assessed to determine whether a material change of use has occurred. Such an assessment must take account of material planning considerations including amount and nature of uses and cannot simply be determined by applying development plan policy or guidance or by using a checklist. To do so would be unlawful.
Long term established change of use
A use is lawful for planning purposes and cannot be enforced against if that use has been carried on continuously for 10 years unchallenged. Unfortunately, there is no planning register for this type of information.
Where planning permission is needed for STL, it may be possible to apply for a certificate of lawfulness. However, when applying, the onus of proof will be on the applicant, and they must provide the evidence of the property being used for STL for 10 years. If there has been one owner/ operator during that period, an affidavit can be used as proof; in other situations, it can be surprisingly difficult to find proof of the 10-year use if records have not been kept.
Appeal decisions have confirmed that the covid lockdown period does not necessarily stop the clock for the purposes of establishing the 10 year period.
How will the need for planning permission be assessed?
The licensing section of councils are likely to take a formulaic approach to the requirement for planning permission. That may leave the STL operator to seek advice from the planning section of the council, which may insist that an application is submitted for a certificate of lawfulness or planning permission. Establishing lawfulness, either through 10 years use, or because planning permission is not required, involves legal matters and the gathering of appropriate evidence which may require expert planning law advice.
If you would like any more information or advice on planning issues related to STL or licensing, please get in touch with Neil Collar and George Sismey-Durrant.
[This article is a summary of the planning law issues relating to STL. Further advice should be taken on how the law applies to specific circumstances.]
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