Short-term lets - licensing scheme and planning control areas: consultation

5. Control Area Regulations

5.1. All secondary letting (short-term lets of whole properties) will be in scope of the Control Area Regulations. Research commissioned by the Scottish Government into the incidence of short-term lets in Scotland found that, in May 2019, there were just under 22,100 active listings of whole properties on Airbnb; whilst other platforms are active in Scotland, Airbnb comprises a very substantial part of this market and this figure is indicative of the scale of activity.^[9]

5.2. Planning is concerned with the material change of use of a building; for example, its impact on local amenity and the character of a neighbourhood or area, safety and impact on immediate neighbours. How an individual property is advertised, managed or operated is a matter for the licensing scheme.

5.3. Planning permission is required for some changes of use and not for others. For example, change of use of a house to a bed and breakfast or guesthouse where not more than two bedrooms (or a single bedroom if there are less than four bedrooms) is not considered development and this change does not require planning permission^[10]. (This is important for home sharing or home letting.) But, for example, planning permission is required to convert a house into flats.

5.4. Here we are concerned about the use of dwellinghouses for secondary letting. The term dwellinghouse is used a lot in planning law. For the purpose of the Control Area Regulations, a dwellinghouse means a house or a flat or a cottage or any independent dwelling (i.e. with its own front door, kitchen and bathroom). This includes properties adjacent to, or on the same land as, the host’s principal residence.

5.5. Currently, planning authorities (usually the local authority) consider on a case-by-case basis whether use of a dwellinghouse for secondary letting constitutes a material change of use requiring planning consent.

5.6. The Control Area Regulations will allow planning authorities to designate all or part(s) of their area as a control area. Within such a designated area, the use of a dwellinghouse for secondary letting is always deemed to involve a material change of use and requires planning permission. Outside such areas, the current case-by-case consideration would continue to apply.

5.7. The requirement to seek planning permission in a control area would not, of itself, imply any predisposition to refuse consent. However, as planning applications are required to be determined in accordance with local development plans, 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.

5.8. We are proposing that dwellinghouses used for secondary letting can revert to residential use without planning permission.

Revocation of planning permission

5.9. As a primary purpose of control areas is to help manage high concentrations of secondary letting, we are proposing that, in a manner similar to advertising hoardings, any planning permission which is granted would be valid for a default period of ten years (unless a longer or shorter period is set by the authority) but that local authorities should have the power to revoke planning permission after that time. Without such a mechanism, the granting of planning permission for use of residential property for secondary letting is a one-way ratchet, in which the number of properties which can be used for this purpose would only ever increase.

Removal of permitted development rights

5.10. Permitted development rights allow a change to happen without planning permission. Currently, a dwellinghouse may be used for secondary letting for up to 28 days in any calendar year without a requirement for planning permission^[11].

5.11. We propose to remove this permitted development right within control areas.

5.12. Retaining the permitted development right would allow the letting of a property for 14 weekends (Saturday-Sunday), 9 weekends (Friday – Sunday) or a continuous period of four weeks, for example, within an control area without the need to apply for planning permission. We consider this undermines the purpose of establishing a control area, adds to the complexities of enforcement and is confusing for neighbours.

5.13. The change we are proposing would not, however, prevent planning authorities adopting policies that have the effect of reinstating it, if they so wished. This means, in effect, they are being given more discretion by this change. For example, planning authorities could have a policy of universally granting planning permission for secondary letting in a control area subject to a restriction on the period for which the dwellinghouse could be let. This might be useful for large, one-off events.

Process for establishing a control area

5.14. In terms of the process which a local authority needs to follow to establish a control area, we have sought to strike the right balance between, on the one hand, proper consultation and evidence gathering, and, on the other, avoiding unproductive bureaucracy. It is important to note that a control area does not prohibit secondary letting within it, it merely requires planning permission; this is an important consideration in determining an appropriate process. We are proposing to require a similar process to that used to establish conservation areas^[12]; this seems appropriate as conservation areas have a similar effect in making planning permission mandatory within them. The conservation area process requires some form of consultation (not specified in legislation) and notification to Ministers for approval.

Transitional arrangements

5.15. We suspect that there are a number of instances of secondary letting across Scotland operating without planning permission having been sought (i.e. operating illegally, either wilfully or in ignorance). These cases will come to light as the licensing scheme is rolled out across Scotland, whether or not the secondary letting is taking place in a control area.

5.16. As a matter of policy, we want to encourage hosts to apply for licences (and planning permission where this is required). They will be discouraged from doing so if enforcement action is taken for prior operation without planning permission and/or they are prevented from continuing their business pending determination of their planning (and licensing) application.

5.17. Therefore, we propose that local authorities have the power to set a grace period during which a host may submit a planning application for an existing secondary let and during which no enforcement action would be taken against them. (Note that enforcement action is not normally taken following receipt of a planning application and pending its determination.)