Planning circular 1/2023: short-term lets and planning

3. Establishing control areas

(a) Introduction

3.1 Whether a property is inside or outside of a control area, it continues to be the case that any change of use of a dwellinghouse which is a material change of use would require planning permission^[1]. A change of use of a dwellinghouse to use for short-term lets occurring after a planning authority has designated an area as a control area will, (with some exceptions as set out in annex A) be deemed a material change and therefore always require planning permission. The exceptions set out in annex A are exceptions only to the rule that such a change of use is deemed to be a material change of use. They do not alter the underlying position that a change of use that is a material change of use requires planning permission.

3.2 The purpose of control areas is to ensure that all changes of use of dwellinghouses to use for the purpose of short term letting are brought within the scope of the planning system without the need to consider if a particular change of use is or is not a material change of use. This should help manage levels of short-term letting where these affect the availability of residential housing or the character or amenity of a neighbourhood, and help local authorities ensure that homes are used to best effect in their areas.

(b) Legislative basis

3.3 Section 26B of the 1997 Act allows planning authorities to designate all of their area as a control area or parts of their area as one or more control areas. They are not under a duty to designate control areas and may choose not to do so.

3.4 The Control Area Regulations are made under powers contained in section 26B of the 1997 Act. Section 26B provides that the Scottish Ministers may make regulations relating to the procedures planning authorities must follow to make, vary or revoke a control area, the form of a designation of a control area, what constitutes a short-term let for the purposes of section 26B and any circumstances or descriptions of dwellinghouse to which section 26B does not apply.

3.5 Section 26B of the 1997 Act and the Control Area Regulations came into force on 1 April 2021. The Control Area Regulations were amended by The Town and Country Planning (Short-Term Let Control Areas) (Scotland) Amendment Regulations 2022. These made amendments to the list of excluded accommodation and added references to excluded tenancies.

(c) Reasons and evidence

3.6 In order to designate a control area, a planning authority will need to prepare a statement of reasons for their proposal. This is an important step in explaining to people affected by the control area, and the Scottish Ministers, why the planning authority considers it necessary.

3.7 A planning authority might want to designate a control area, and so ensure that planning permission will always be required for a change of use of a dwellinghouse to use for short term letting, for one or more of the following policy objectives:

• to allow consideration of impacts on the availability of residential housing
• to allow consideration of impacts on the character or amenity of a neighbourhood; to allow consideration of impacts on different types of building.

3.8 Planning authorities should consider whether there are systemic material planning considerations across one or more areas in the planning authority area as part of deciding whether to designate one or more control areas. Systemic here might mean the same consideration repeated many times or that there is a cumulative impact from the use of dwellinghouses as short-term lets. Example indicators include:

• Lack of affordable and appropriate housing for local residents, perhaps indicated by a high share of sale volumes to, and high prices paid by, non-residents.
• Detrimental impact on local amenity, with some businesses, schools or other services that serve, and are reliant on, permanent residents closing or relocating.
• Changes to the look and feel of a neighbourhood, such as multiple keyboxes on many buildings or structures or noise on streets and in stairwells.
• Signs that local services are struggling, such as many instances of overflowing bins.
• A significantly higher level of complaints relevant to use of dwellinghouses as short-term lets from neighbours spread across a number of tenements or properties than in a comparable area, within or outside the planning authority area.

3.9 Ultimately, it will be for local authorities to determine whether a control area is required (based on some form of consultation) taking all relevant local circumstances into account. Planning authorities should keep their control area(s), or absence thereof, under review, perhaps aligned with any review of their local development plan.

(d) Designating one or more control areas

3.10 Under the provisions of section 26B of the 1997 Act, a planning authority may designate all of its area, or any part of its area, as a control area.

3.11 The process of designating an area as a control area essentially follows three steps as set out in regulation 3 of the Control Area Regulations.

3.12 The planning authority must undertake:

• notification and consultation: publish notice of their proposal to designate a control area and consult on the proposal;
• submission and approval: submit their proposal to the Scottish Minsters and obtain their approval; and
• publicity: subject to approval of the Scottish Ministers, the planning authority must give notice of the designation, setting out the area to be covered and the date on which the control area will come into effect.

3.13 A similar process is followed for the variation, or cancellation, of an existing control area.

Notification and consultation

3.14 Regulation 4 sets out the process for the notification of the proposed designation of a control area. Regulation 6 sets out the process for varying or cancelling a control area designation. The purpose is to allow members of the public to be aware of, and comment on, the proposed control area.

3.15 The planning authority is required to publish notice of the proposals in a newspaper circulating in the area to be designated as a control area. The planning authority must also publish the notice on their website and send the notice to each community council within the area of the proposed control area (regulation 4(1)).

3.16 The notice must (regulation 4(2)):

• contain a statement that the planning authority proposes to designate the area as a control area and a description, in general terms, of that area;
• state how further information in respect of the proposal, including a map of the area covered by the proposal and a statement of the planning authority's reasons for proposing to designate the area as a control area, can be inspected free of charge; and,
• state how representations can be made to the planning authority and the date by which they must be made.

3.17 The planning authority must allow a minimum period of 28 days from the last date on which notice is given for the submission of representations. The 28 days begins on the date on which the last part of the required notification is completed.

3.18 Regulation 4(3) sets out that the map of the proposed control area and a statement of reasons for proposing the control area must be made available on the planning authority's website and at an office of the planning authority. The latter is important for people who cannot access this information through the internet. Planning authorities should give consideration as to how to support people without internet at home, or with disabilities that prevent them from accessing the internet, to find the information that they need.

3.19 Planning authorities may consider additional notification methods in addition to the statutory requirements (for example by leaflet drops, social media or local signage) where they consider it appropriate to do so.

3.20 Regulation 6 sets out a similar process for the variation or cancellation of a control area designation once it has been created. Where a planning authority proposes to vary or cancel a control area they must make information available and allow for representations to be made in the same way as set out above. They must publish a map showing clearly the area designated as a control area, any proposed changes to the area covered by the control area and a statement of reasons for varying or cancelling the control area, as the case may be.

3.21 Under regulation 7(1), the planning authority can modify the proposal to take account of any representation made in response to the consultation. The planning authority may not, however, make any changes to include an additional area in the control area which was not shown on the map of the control area (or proposed control area) that accompanied the consultation (regulation 7(2)).

Submission and approval

3.22 In accordance with regulation 8, where a planning authority either proposes to designate an area as a control area, or proposes to vary or cancel an existing control area, the authority is required to give notice of the proposal to the Scottish Ministers.

3.23 Where the planning authority proposes to designate an area as a control area the notice must be accompanied by:

• a map of the area which the planning authority propose to designate as a control area; and,
• a statement setting out the planning authority's reasons why the authority propose that the area should be designated as a control area.

3.24 Where the proposal is to vary or cancel a control area the notice must be accompanied by:

• a map of the affected control area;
• if the proposal is to vary a control area designation, a map of the area which it is proposed to exclude from, or include within, the control area; and,
• a statement setting out the planning authority's reasons why the authority propose that the control area should be varied or cancelled.

3.25 The approval of the Scottish Ministers is required before the planning authority can proceed to designate a control area or vary an existing control area. Although the planning authority is required to notify Scottish Ministers of their proposals to cancel an existing control area, Ministerial approval is not required for cancellation of a designation to proceed.

3.26 The Scottish Ministers can either approve or not approve the control area(s). The Scottish Ministers cannot propose amendments to the proposals.

3.27 In considering the proposals, the Scottish Ministers will seek assurance that the planning authority has:

• taken reasonable steps to raise awareness in the proposed control area(s) and consulted appropriately;
• taken account of the views expressed in consultation and considered this with any other relevant evidence; and
• come to a reasoned decision as set out in the accompanying statement.

3.28 Obviously, a range of views may be expressed in consultation and the Scottish Ministers will be looking for a coherent and considered response, recognising that it is unlikely that proposals can be modified to satisfy everyone.

Publicity

3.29 The final stage of the process of designating, varying or cancelling a control area is for the planning authority to publish notice of the designation, variation or cancellation, as the case may be (regulation 9).

3.30 For designation or variation of a control area, the notice cannot be given until after the Scottish Ministers have approved the proposal.

3.31 The planning authority must publish the notice in a newspaper circulating in the area and on the planning authority's website.

3.32 Notice of designation of an area as a control area must state:

• the date on which the area is to be designated as a control area; and
• How a copy of a map of the designated control area can be inspected.

3.33 Notice of variation of a control area must state:

• the date on which the variation is to take effect; and
• how a copy of a map showing the control area as varied can be inspected.

3.36 Notice of cancellation of a control area must:

• state the date on which the cancellation is to take effect; and
• identify the designated control area to be cancelled.

3.37 In all cases, at least 28 days must be allowed between the date of the publication of the notice and the changes taking effect.

3.38 Planning authorities may also wish to establish policies in regard to control areas through the Local Development Plan