Short-term let control areas and planning permission

These Airbnb statistics show the short-term let business globally is certainly popular. That said, it’s not without its detractors.

Criticisms levelled at the market include reducing the availability of housing stock, pushing up rental prices, and encouraging anti-social behaviour.

How can Scottish local authorities strike the right balance?

Short-term let control areas may be an answer. And, in August this year, Edinburgh City Council became the first Scottish local authority to establish one: restricting the number of Airbnb-style lets across the Scottish capital.

And Highland Council has applied to the Scottish Government to designate Badenoch and Strathspey as a control area, which will likely be agreed in the early part of 2023.

The control area background

Along with new legislation that means short-term let properties need to go through a licensing process, the Scottish Government also allowed local authorities to establish these control areas under the Town and Country Planning (Short-term Let Control Areas) (Scotland) Regulations 2021.

Ultimately, this move is designed to ensure councils have appropriate regulatory powers to balance the needs and concerns of their communities with wider economic and tourism interests.

The purpose of control areas is to —

• Help manage high concentrations of secondary letting, in particular where it’s negatively affecting housing availability or neighbourhood character

• Restrict or prevent short-term lets in places or types of building where it is not appropriate

• Help local authorities ensure homes are used to best effect

Inside a council-designated control area, a change of use to a short-term let will always need planning permission.

But bear in mind it’s only second home letting that is regulated under these rules. Home letting or home sharing, where the property is the applicant’s only, or principal home, is usually excluded.

Outside a control area however, the local authority must decide on a case-by-case basis if the change in use needs planning permission.

Planning permission

If you need planning permission, then it needs to be in place before any guests stay at your property.

The Scottish planning system is "plan-led". This means planning authorities have a regularly updated local development plan and are required by law to decide applications in line with it, unless there are material considerations dictating otherwise.

They also must take account of local and national policies.

What is a material planning consideration?

Good question.

Material planning considerations are not set out in legislation. This means they’re dependent on the context.

Here are some examples, but please bear in mind this isn’t an exhaustive list.

• Guest arrivals and departures

• Impacts on other residents in flatted buildings

• Impact on public services and residents' amenity

• The size and layout of the neighbourhood

• Number of people staying

In terms of use as a short-term let, the relevant considerations can include —

• Whether the capacity changes the nature of the use, for example accommodation for 12 guests may be more likely to be booked for stag and hen parties than accommodation for four

• Whether the capacity is significantly larger than that what you’d reasonably expect for residential use, for example six bunkbeds to provide capacity for twelve people would be unusual for a residential home

Letting rooms in your own home — do I need planning permission?

You may need planning permission as well if you’re letting out rooms in your own home. Specifically, yYou do not normally need planning permission if you live in a house (not a flat) in the following circumstances —

• Where you are only letting one bedroom in your own home, and it has fewer than four bedrooms

• Where you are only letting one or two bedrooms in your own home, and it has four or more bedrooms

Where you are letting out more rooms than this, or you live in a flat, then you will generally need planning permission.

The examples here should give you a good idea what might trigger the need for a planning application and what you’ll need to consider. You should also check the relevant local development plan and policies; it may well be the case that the planning authority has a policy on short-term lets.

Certificate of Lawfulness of Existing Use or Development (CLUD)

The CLUD is a way to check if planning permission is needed. It will confirm the lawfulness of a development or change of use and confirms enforcement action won’t be taken if you carry on using the property for the same purpose.

Broadly speaking, if you are seeking a CLUD on the grounds that no enforcement action can be taken it is your responsibility to demonstrate to the planning authority that —

• The change of use occurred more than 10 years before your application

• The use has continued without interruption for at least 10 years (it does not have to have been occupied by guests every night for this period, but it can’t have been used for any other purpose)

• The use has not increased or intensified during those 10 years, for example where part of the property was used for the first five year, then all of it for the remainder

• No formal enforcement action has been taken in the in respect of the use

The information you need to provide in support of a CLUD application is different to that required for a planning application. Here, you’re submitting evidence that you don’t need planning permission.

Examples of evidence that might be used include —

• Receipts for guests staying at the property

• Advertisements

• Extracts from business accounts

You may need to spend some time gathering information from your records and corroboration from other sources to prepare the evidence.

Licensing

If your planning application or CLUD application is granted, you’ll still need a licence to operate lawfully. Your licensing application may be refused pending a successful planning application.

A planning authority can take enforcement action where there has been a breach of planning control. This would occur if there were a material change of use of a property without planning permission. Enforcement action can be taken up to 10 years from the date of the breach of planning control and that may mean you’ll need to stop using your property for short-term lets if you do not have the appropriate permission.

Appeals

Planning enforcement notices and decisions to refuse planning permission can both be appealed.

In an appeal against an enforcement notice —

• The appellant argues that it is not development (no material change of use)

• The Scottish Government reporter considers whether there is in fact a material change of use

In an appeal against a planning refusal, or a failure to give a decision —

• The argument is over whether the material change of use should be allowed

• The reporter looks at the planning application afresh and might weigh considerations differently from the planning authority

However, licensing authorities also have the power to refuse to consider a licensing application if they consider see an application as breaching planning control.

This power is primarily designed to help licensing authorities to process applications for secondary letting within control areas.

Plus, it’s a mandatory condition of a short-term let licence — if you’re in a control area so require planning permission — to have made a planning application or to have that permission already before welcoming guests.

Can local authorities rescind permission?

They can, but not easily.

Routes to address issues with short-term lets already with planning permission include —

• Through planning law if there has been a breach in planning control (i.e. the terms of the planning application or conditions have been violated)

• By refusing a licensing application or by applying licensing conditions and sanctions, where there are grounds to do so

While these can give an idea of the issues relevant to planning, you need to bear in mind that each case is considered on its own merits.

Under planning legislation, it is the local authority that decides what weight to give to competing material considerations. If you are unsure whether planning permission is required, it’s worth discussing your proposals with the planning authority and or seeking independent planning advice.

You can speak to our team, or if you’re interested in reading more commentary, our news and view page is regularly updated.