The Planning (Scotland) Act 2019 was passed by the Scottish Parliament and received Royal Assent earlier this year. Although the reforms to planning controls over short-term lets aren't as radical as the amendments proposed at earlier stages of the Parliamentary process, it is worth looking at how the Act changes what permission is needed to rent a property as short stay accommodation.
In January of this year we published a note on the planning requirements for renting residential properties as short stay accommodation. To summarise, planning permission will be required if there is a 'material change' in the way that a property is being used, and there are a number of considerations which will go towards determining whether or not there has been a material change of use.
If the property is a house rather than a flat, use as short stay accommodation might be permitted without an application for planning permission if the house is being occupied by five people or fewer, living together as a household. By contrast, a change from using a flat as a residential property in permanent occupation to using it as short stay accommodation is very likely to need planning permission from the local authority.
Short term let control areas
So how has the current position been changed by the Act? At Stage 2 of the parliamentary process, an amendment was agreed which would have meant that all changes to the use of a residential property for short-term holiday lets would have required express planning permission, except where the property being let is the owner's sole or main residence. This would have applied equally to houses and flats. This wording, however, didn't find its way into the final version of the Act as passed.
What the Act now provides is that planning authorities will be able to designate either the whole or parts(s) of their authority area as a 'short-term let control area', and within those designated areas use of either a flat or a house as short-stay accommodation will require an application for planning permission.
This doesn't include longer-term private tenancies and it also doesn't apply if the property is the main or only home of the owner or occupier. The detail within the Act is relatively modest, and there is scope for the Scottish Ministers to make regulations setting out further detail, including what constitutes a 'short-term let' and whether there are to be any types of property to which the designation doesn't apply. As things stand, it is not known whether the regulations will set a minimum threshold on the number of days per year that a property must be used as a short term let before the requirement for planning permission applies.
Shaping planning policy based on proliferation of 'holiday' lets
It remains to be seen how many planning authorities will choose to implement 'short-term let control areas', and also how widely these control areas will be drawn. We have already seen, particularly within the city authorities, an increase in the number of enforcement cases being raised for unauthorised short-stay use of flats.
Control areas would provide planning authorities with a means of regulating the use of short-stay accommodation; anyone who wanted to use a property within those areas as short stay accommodation, whether it be a flat or a house, would need to make an application for planning permission and the planning authority would be able to shape its policies to set out the circumstances in which short stay use might be acceptable.
It is worth pointing out that short-stay use within these control areas wouldn't be prohibited, but it would be regulated through the planning application process. Where available housing stock, particularly the availability of properties for longer-term lets, is low, control areas could prove to be an attractive option to planning authorities.
The Scottish Government recently published its proposed timetable for implementing the Act. It is intended that the regulations on short term let control areas will be in place by December 2020. The programme of works for implementing the Act can be viewed at: https://www.gov.scot/publications/transforming-planning-practice-post-bill-work-programme/
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If you are looking for guidance as to whether planning permission is likely to be required for a particular use of a property, particularly while the law on this remains subject to change, we are pleased to provide advice.