The paper opines that the requirement for planning permission for short-term holiday letting depends on whether the premises are situated within a short-term let control area. Licensing requirements are not made under the planning legislation and are not relevant to determining whether planning permission is necessary.
In all other areas, planning permission is not necessarily required for a change of use to short-term holiday accommodation. In fact, the question of a change in material use depends on the individual circumstances of each premises and planning authorities must take this into account.
“…in law, planning permission is not necessarily required for a change to use to short-term holiday accommodation, as it depends on the facts and circumstances of each individual premises.”
Furthermore, this is not necessarily determined by the applying development plan policy or guidance, nor by using a checklist. While some planning authorities have prepared checklists, this does not remove the legal requirement to consider the individual circumstances of the premises. Policy/guidance cannot be applied as a blanket rule.
When determining the materiality of a change, it is a matter of whether short-term holiday letting necessarily has different planning considerations and impacts.
The paper from Brodies LLP argues that users of a self-catering property are “unlikely to exhibit markedly different characteristics to more permanent residents.” For instance, “Disruptive behaviour or anti-social behaviour is just as likely in residential use as self-catering use”. Another example is provided – “servicing of self-catering accommodation is also not a differentiator” as some residential occupiers use cleaners on a regular basis.
Overall, as the legal opinion concludes:
“…planning permission is not necessarily required for a change of use to short-term holiday accommodation: whether the change of use is material is a question of the facts and circumstances of the individual situation, which is not necessarily determined by applying development plan policy or guidance by using a checklist.
However, guidance from the Scottish Government makes clear that this requirement only applies to new uses only and does not apply retrospectively. In decision letters from the Scottish Government to City of Edinburgh Council and Highland Council on 27th July 2022 and 20th December 2022 respectively, it is clearly stated that:
“A change of use of a dwellinghouse to a short-term let after the designation of the control area will be deemed to be a material change of use by virtue of section 26B of the Act.
Where the change of a dwellinghouse to a short-term let took place before the designation of the control area the existing rules will apply. These require planning permission for a change of use of property where that change is a material change in the use of the property”.
This indicates that Edinburgh and Highlands should not be asking for planning permission in all cases for those properties that were already operating before a PCA was designated.
In March 2023, David Reekie, Planning and Architecture, Scottish Government, further confirmed by email to the ASSC that:
“Section 26B applies to any new change of use from a dwellinghouse (which in this context includes a house or a flat) once the control area has been brought into effect. It does not apply retrospectively. “
“Retrospective planning permission for a change of use outwith an STL control area is required if the change of use is material and planning permission was not obtained prior to the change of use. If the change of use is not material, then planning permission is not required.”
Neil Collar of Brodies LLP prepared a further legal opinion for the ASSC in May 2023, specifically around PCAs, which underlines that planning permission is only required post designation. He agrees with the positions above and concludes:
“In my opinion, that is a correct statement of the law. A new planning permission is not required if, for example:
3.1 the existing short-term letting is authorised by a grant of planning permission issued prior to the establishment of the Control Area; or
3.2 the letting is lawful because it has been carried out for more than 10 years; or
3.3 planning permission was not required at the time the use was commenced – planning permission is required if there is a material change of use; the courts have held that whether a change of use is material is a question of the facts and circumstances of the individual situation; it is not appropriate to refer to new policies adopted after the use was commenced.”
A recent DPEA decision in Feb 2023 confirmed this approach, overturning a CEC enforcement notice decision, determining that no material change of use had occurred for a flat operating prior to the control area designation (ENA-230-2237).