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

6. Control Area Regulations

6.1. There were 869 responses to the question about any issues with the proposed control area regulations as set out in chapter 5 of the consultation paper, and how to resolve them.

6.2. In this chapter, the issues raised by consultees are reviewed in the order the proposals were presented in the consultation paper.

Material change of use

6.3. Paragraph 5.2 of the consultation paper explained that 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. Paragraph 5.5 noted that, 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.

6.4. With regard to what constitutes a material change of use:

Consultation proposal:

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.

Issue:

The Law Society highlighted the need for guidance. They noted that the consultation did not go into detail on when a material change of use takes place (and therefore the property requires planning permission) outwith a control area.

They also suggested that it was important that there were clear principles for assessing planning applications. They thought it would be helpful if there was national guidance on planning considerations for short-term lets.

Resolution:

Clarification.

We will issue guidance on both:

• what constitutes a material change of use with respect to the use of dwellinghouses as short-term lets outside control areas; and
• relevant considerations in determining a planning application in respect of change of use to a short-term let in any area.

Reverting to residential use

6.5. Paragraph 5.8 of the consultation paper proposed that dwellinghouses used for secondary letting could revert to residential use without planning permission:

Consultation proposal:

The consultation paper proposed that dwellinghouses used for secondary letting could revert to residential use without planning permission.

Issue:

One local authority raised a concern around the proposed introduction of a permitted development right to allow a short-term let to revert to a residential use. The concern was that, where a consent had been granted for a change of use to an short-term let and there were associated works carried out (for example to subdivide the property), reverting to residential dwellinghouse use may result in a residential property that does not conform to local plan policies.

Another consultee considered that local authorities should be notified of the change back to residential use.

Resolution:

Clarification through guidance.

With regard to the possibility that some properties reverting to residential use might not comply with local policies, we consider this may occur but is unlikely to be a frequent occurrence. One remedy is for the planning authority, in granting consent for change of use to short-term let, to impose conditions to address these concerns; we will set this out in guidance. For example, changes to the fabric of the building for short-term let use might be highlighted as requiring to be reversed if the property reverts to residential use.

A requirement to notify the local authority of a change back to residential use would help local authorities keep track of concentrations of short-term lets in their area. However, there would potentially be problems in making this enforceable. Active secondary letting will be trackable through the licensing scheme.

On balance, we have decided not to make any specific legislation provision at this time. Whether any change from secondary letting to residential use requires planning permission will depend on whether it constitutes a material change of use. At paragraph 6.4 above, we have said that we will issue guidance to local authorities on material change of use for dwellinghouses becoming short-term lets. We will also issue guidance on the reverse: planning considerations on short-term lets reverting to residential use. In most cases, we would expect that this would not be a material change of use but, where alterations to the fabric of the building have been made for the specific purpose of using it for short-term lets, then such a change might be material.

We are not aware of any problems at present with the sale of holiday accommodation to people intending to make it their home; and these planning considerations are not new.

We will legislate to amend the GPDO later, if guidance proves to be insufficient.

Revocation of planning permission

6.6. Paragraph 5.9 of the consultation paper set out proposals for the revocation of planning permission:

Consultation proposal:

We proposed 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.

Issue:

ASSC raised a concern about having any form of time limit on consent could have implications for businesses in investing in their properties. The Short Term Accommodation Association (STAA) suggested that, where a planning authority intended to revoke a consent, the business should be given one year’s notice in order to prepare for the revocation.

Resolution:

Amendment.

We will not make provision mirroring the advertisement consent process at this time. We will set out in guidance the existing powers available to local authorities in respect of secondary letting with planning permission already granted.

Local authorities can impose a condition when granting planning permission to require the permitted use to be discontinued after a specified period – this is a “planning permission granted for a limited period”. There are also powers under section 43(1)(aa) of the 1997 Act which allow the Scottish Ministers to give directions to planning authorities in relation to the imposition of conditions.

We will set out in guidance that local authorities should consider applying a discontinuation condition of 10 years, or such other time period as they consider appropriate, when granting planning permission for secondary letting in a control area (or outside, if they see fit).

We will also consider how the process of applying for planning permission to continue beyond the specified period might be simplified, noting there is no urgency to do this (as the issue does not arise until we approach the end of the first specified periods, likely to be 10 years hence). In the event no action was taken, a further planning application, or an application under section 42 of the 1997 Act to disapply the discontinuation condition, would be required with the corresponding application process and fees.

Removal of permitted development rights

6.7. Paragraphs 5.10 to 5.13 of the consultation paper set out proposals for the removal of permitted development rights:

Consultation proposal:

The consultation paper proposed to remove permitted development rights within control areas which would otherwise continue to give permission for property to be used for secondary letting for 28 days or less in any calendar year without planning permission.

Issue:

A number of consultees highlighted that this reference to permitted development rights was incorrect. They are right and the consultation paper was wrong on this point. No such permission currently exists.

One local authority also raised the issue of permitted development rights attached to dwellinghouses being lost when they become short-term lets.

Resolution:

Clarification.

Our policy is that there should be no such permitted development right within control areas and there is no change required to give effect to this. Further, there is, and will be, no permitted development right outside control areas either.

Process for establishing a control area

6.8. Paragraph 5.14 of the consultation paper set out proposals for the process which a local authority needed to follow to establish a control area:

Consultation proposal:

We proposed to mirror a similar process to that required to establish conservation areas; this seemed 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.

Issue:

Local authorities were broadly content with this approach whereas hosts operating secondary lets were generally against control areas in general. Some suggestions for refinement were made which have led to the refinement of the proposals set out below.

Resolution:

Amendment.

• Planning authorities should consult on proposals for control areas.
• Community councils should be notified as part of the awareness raising of consultation.
• Ministers will be asked to approve control areas and variations which expand the area they cover.
• Ministers will be notified of variations which reduce their extent or when control area designations are cancelled.

Transitional arrangements

6.9. Paragraphs 5.15 to 5.17 of the consultation paper set out proposals for transitional arrangements. The paper highlighted issues around existing secondary letting hosts operating without planning permission where this should have been sought. The paper noted that these cases would come to light as the licensing scheme is rolled out across Scotland, whether or not the secondary letting was taking place in a control area.

6.10. With regard to the treatment of existing secondary letting:

Consultation proposal:

Within a control area, the use of a dwellinghouse for secondary letting is always deemed to involve a material change of use and requires planning permission.

Issue:

This was commonly understood to mean that the requirement to have planning permission applies to any person using a property for secondary letting within the designated area, irrespective of whether they were using the property for secondary letting prior to the designation. I.e. the control area affects continuing businesses in the same way as it affects new businesses.

Consultees also raised the issue of continued operation for businesses which have been operating for e.g. 10-15 years or more. It was suggested that long-standing businesses should be able to continue operating.

Resolution:

Clarification

If, after a short-term let control area is designated, the use of a dwellinghouse is changed to secondary letting this use will constitute a material change of use and will require planning permission.

If the use of a dwellinghouse has been changed to secondary letting before a short-term let control area is designated, then under the current law planning permission would be required if:

a) the change of use was a material change of use, and

b) the change of use occurred in the last 10 years (assuming no enforcement action had been taken in the meantime).

This means that, where long-standing businesses can evidence use as short-term let for more than 10 years (without previous enforcement action), they can continue to operate in control areas. In practice, this has the effect of delivering the commonly understood application of the provision in the vast majority of cases (as the numbers of short-term lets have only risen dramatically within the last 10 years). Of course, they will need also need a licence to operate and so any long-standing businesses that cause nuisance can be managed through licensing.

We will set out more details in guidance to assist local authorities in applying control area designations effectively.