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

4. Planning considerations

(a) Establishing whether a planning application is needed

4.1 Section 26B of the 1997 Act sets out that a change of use of a dwellinghouse to short term letting (as defined) in a control area will be deemed to be a material change of use and so require planning permission. The exceptions are exceptions to the effect of section 26B, i.e. whether or not there is deemed to be a material change of use under section 26B.

4.2 Regardless of whether section 26B applies to any particular change of use, it remains the case that both within and outwith a control area a material change of use of a dwellinghouse^[2], whether to use for the purposes of short term letting or other uses, is development under section 26 of the 1997 Act and requires planning permission, unless it is a change of use between uses in use class 9 of the Use Classes Order.

4.3 Section 26B is not retrospective, meaning that the designation of a control area does not, in itself, retrospectively deem any previous change of use of a dwellinghouse to use for short-term lets within that area to be a material change of use. Section 26B applies where a change of use of a dwellinghouse occurs after designation of a control area. However, it is important to bear in mind that section 26B does not replace the existing requirements of the 1997 Act in respect of the need for planning permission for a material change of use. This means that material changes of use to short-term letting whether before or after the designation of a control area would require planning permission.

4.4 Consideration of whether the change of use is material in any particular case may include, but is not restricted to, matters such as the impact on immediate neighbours, the wider local amenity and local infrastructure of the proposed use in the proposed location.

(b) Certificate of Lawfulness of Use or Development

4.5 A Certificate of Lawfulness of Use or Development (CLUD) is in effect a mechanism whereby a person can apply to a planning authority for confirmation as to whether planning permission for a proposed or an existing use of the property is required or not. In essence, a CLUD is confirmation of the lawfulness of the change of use and so confirmation of that subsequent enforcement action would not be taken in respect of the continued use of the property. Anybody can seek a CLUD if they wish to ascertain whether an existing use is lawful.

4.6 Where a CLUD has been granted, a further planning application is not required provided the use continues to comply with the terms of the CLUD.

4.7 There are two types of certificate of lawfulness;

• A certificate of lawfulness of proposed use or development (under section 151 of the 1997 Act). This is applied for before the proposed use takes place.
• A certificate of lawfulness of existing use or development (under section 150 of the 1997 Act). This option is available in respect of the existing use of the building and so where a change of use has already taken place. A CLUD can be sought on various grounds including that use did not involve development ie that the change of use was not material or that no enforcement action can now be taken. This would be the case if a material change of use it took place more than 10 years previously in breach of planning control and is therefore, under section 124(3) immune to enforcement action

4.8 If a person is seeking a CLUD on the basis that the use has already been in place for at least 10 years, it is their responsibility to demonstrate this to the planning authority. Key aspects that should be evidenced include:

• the change of use occurred more than 10 years prior to the CLUD application;
• the use has continued without interruption for at least 10 years;
• the use has not materially increased or intensified during those 10 years; and
• no formal enforcement action has been taken in respect of the use.

4.9 With regard to the second bullet point above, "without interruption" does not mean that the property has to have been occupied by guests on every night for the last 10 years. A holiday home is still a holiday home, even when it is empty.

(c) Determining a planning application

4.10 Under Scottish planning legislation (the 1997 Act) , planning applications are determined in accordance with the relevant local development plan, unless there are material considerations that justify a departure from the development plan. Where a change of use from a dwellinghouse to a short-term let is considered material, a planning application will be required. Such a change of use would generally be considered to be a material change of use of a building under class 21 of The Town and Country Planning Fees for Applications) (Scotland) Regulations 2022 for the purpose of calculating the appropriate fee.

4.11 What is and is not a material planning consideration is not set out in legislation. This means that what constitutes a material planning consideration is a question of what is relevant to the consideration of a particular case. Each planning application is considered on a case-by-case basis; decisions made in other cases are not generally relevant to consideration of any particular case. Only those material planning considerations that apply to that particular application can be considered in determining whether it is approved or not.

(d) Development plan policy

4.12 The fourth National Planning Framework (NPF4) forms part of the statutory development plan against which planning applications are determined. Policy 30 on Tourism sets out at paragraph (e) that Development proposals for the reuse of existing buildings for short term holiday letting will not be supported where the proposal will result in: (i) an unacceptable impact on local amenity or the character of a neighbourhood or area; or (ii) the loss of residential accommodation where such loss is not outweighed by demonstrable local benefits.

4.13 As with all policies in development plans, this policy should be considered in terms of the wider policy objectives, and should be balanced against other policies that might be material to any particular case.

(e) Duration of planning permission

4.14 Planning authorities can impose a condition when granting planning permission to require the permitted use to be discontinued after a specified period – this is known as "planning permission granted for a limited period".

4.15 Planning authorities may consider applying a discontinuation condition of 10 years, or such other time period as they consider appropriate, when granting planning permission for short term letting in a control area (or outside, if they see fit). The standard tests of necessity for conditions should be met in all cases.

4.16 The Scottish Ministers have powers to give directions to planning authorities in relation to the imposition of conditions. The Scottish Government has no intention of using these powers in this context at present.

4.17 Where planning permission has already been granted, planning authorities cannot easily rescind it. Issues with short-term lets arising in property which already has planning permission may be addressed 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.