Highland Council Establishment of Ward 20 Short-term Let Control Area

The Highland Council has today (26^th May) written to the ASSC to advise that:

“following the Scottish Government publication of Circular 1/2023 (Short-term Lets & Planning) the Council has been considering its position in terms of the final work to establish the Short-term Let Control Area for Ward 20 (Badenoch & Strathspey).  I can advise that at this point in time, we are not proposing running the final press advert to bring the STL CA into force on the 18^th June as agreed by Members at the 4^th May Committee.    

 “We are also not proposing to hold any information session until we are ready to progress with the establishment of the Control Area.

 I am aware this is position is causing uncertainty, but hope to be able to update you next week, on how and when the Council will be in a position to progress the establishment of the Control Area.”

Background:

Following the recent adoption of a PCA in Badenoch & Strathspey, agreed on 4^th May (with a designation date of 18th June 2023), The Highland Council (THC) issued the following policy statement:

“Schedule 3.13 of the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022, makes it a mandatory licence condition of a STL Licence that if the property is within a STL Control Area, the property must either: –

1. a) be subject to an application for planning permission under the 1997 Act and that application has not yet been determined: or
2. b) have planning permission in force under the 1997 Act 

This STL licensing mandatory condition therefore necessitates all existing properties being utilised for Short-term Secondary Letting which fall within a Short-term Let Control Area to obtain planning permission to continue to operate, even if that property has been operating as a short-term secondary letting prior to the Control Area being established.”

The approach appears to be inconsistent with Scottish Government guidance, as well as independent legal advice obtained by the ASSC. 

The introduction of a PCA means that instead of a requirement to consider each short-term let on a case-by-case basis, any secondary let short-term let, regardless of nature of use, requires planning permission. However, guidance from the Scottish Government makes clear that this requirement only applies to new businesses and does not apply retrospectively. In decision letters from the Scottish Government to City of Edinburgh Council and Highland Council on 27^th July 2022 and 20^th 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”.

On 4^th May, the ASSC wrote to the planning department at The Highland Council with legal opinion prepared by Neil Collar, Head of Planning, Brodies LLP. This underlines that planning permission is only required post designation date of a PCA:

“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.”

This indicates that THC should not be asking for planning permission in all cases for those properties that were already operating before the PCA was designated.

On 5^th May, we noted that it is the ASSC’s belief that the licensing team is misinterpreting the planning legislation and any adverts or information sessions scheduled should be paused until the situation is resolved and clarity is achieved. 

Schedule 3: 13 of the STL Licensing Order introduces a planning consideration. A lack of clarity and consistency of approach from different local authorities (from both planning and licensing departments) has led to a lack of understanding and certainty for businesses.

In an attempt to provide clarity in relation to these issues, the Scottish Government released Planning Circular 1/2023: Short-Term Lets and Planning on 17th May 2023. The ASSC has consulted with a number of planning consultants and solicitors who all consider that this guidance does not provide sufficient clarity to address key challenges experienced by our members, and will be open to interpretation by planning authorities.

Whilst we understand the intent of this Planning Circular may be to provide some clarify to local planning authorities, a large number of our members are looking for immediate clarity to assist them with licence decision making process and will therefore be referring to this guidance for clarity. The guidance is simply not clear, and worse, it is contradictory.

In the absence of clear and consistent guidance from the Scottish Government, across local authorities, there will continue to be confusion amongst both planning and licensing authorities as well as applicants for short-term let licences. Operators now have no idea whether they should or must submit planning or certificate of lawfulness applications, and this is now having a bearing on when they apply for short-term let licences.

We will provide an update as soon as we can.