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To Airbnb or not to Airbnb... that is the question
The Scottish Government last week published its report Research into the impact of short-term lets on communities across Scotland. This paints a picture of the effects of home sharing/letting sites such as AirBnb on communities and economies in certain parts of Scotland. Focussing on Edinburgh, Glasgow for urban context and Skye and Fort William for rural, the report brings into sharp focus the economic benefits that are being experienced alongside disruptive impacts on communities and residential markets. In Edinburgh, pressure for visitor accommodation during its summer and winter festivals leads to hotel occupancy rates in excess of 90%. Airbnb can offer an often cheaper and more flexible alternative which may take some pressure off hotel stock, but also open up our city to new visitors who may otherwise not have visited. But these pressures are having a reported effect on the supply of housing and cost of rents. As at 25 September, there were 11,985 Airbnb listings in Edinburgh, 7,366 (65%) of which were entire properties. With around 30% occupancy it is evident that many of these cannot be permanent residences for Edinburgh’s population and must be full-time short-term lets. To put this into context, these figures represent 6% and 4% of the total no of privately owned dwellings in the city respectively. In Skye the report highlights that 18% of all residential dwellings on the island are available for short term let. This has nearly obliterated the private rented sector market, posing problems for existing residents, incoming key workers as well as workers in construction and tourism, industries which are expanding in response to the short term lets that they are hindered by. The findings of the consultation summarised in the report point toward consensus that regulation is required, but at this stage stops short of specific recommendations. It is interesting that planning controls are scarcely mentioned. So what might planning do? Earlier this summer, the Planning (Scotland) Act 2019 introduced the ability for planning authorities to designate all or part of its area as a short-term let control area (STLCA). Within these areas, use of a dwelling for a short term let will constitute a material change of use and require planning permission (unless it is already someone’s principal residence or subject to private residential tenancy). It’ll be ok to let out your spare room on rugby weekends, or even your whole house while you’re on holiday, but buy a flat solely for the purpose of short-term lets and you’ll need planning permission. The change introduced by the Act does beg the question when is a change of use not a change of use? The answer will soon be, when it is outside a STLCA. It initially feels as though introduction of regulation such as this would sit better within the General Permitted Development Order (GPDO). Introduction into the GDPO would however result in a blanket approach across Scotland, adding unwelcome regulation in areas where the adverse effects of short-term lets are less prevalent and do not outweigh the economic benefits of increased tourism. This is a bit of a knotty problem.  At present, if it is considered that the introduction of a short term let use represents a material change then it can already be deemed to require planning permission. What constitutes a material change is undefined but can include a number of factors such as frequency of arrivals/departures, number of nights let or impact upon residential amenity. Each individual case must be assessed by the relevant planning authority and there are a growing number of instances where enforcement action has been taken by planning authorities resulting in refusal of planning permission and, in some cases, dismissal of appeals. While these have yet to be tested in the courts, it is evident that the power already exists to deal with problem cases. These case by case instances do not however address authority/city-wide issues of housing supply, or even community-wide impacts upon amenity and residential character arising as a result of multiple short term lets. This points toward a situation where STLCAs, if used across far reaching areas, such as a whole planning authorities, could in theory provide the control required. But, this would of course place a significant burden on planning departments through enforcing these controls and considering applications. Where budgets and resources are already stressed it may result in a reluctance to use these powers. It also raises questions as to what will happen in instances outwith STLCAs, where there has been or will be a material change. By making STLCAs optional and potentially over limited areas means that beyond them the default position will be as existing; demonstrating material change, but with the absence of a STLCA designation further blurring the lines. I suspect the 2019 Act will not be a silver bullet and the discussion will rage on. If you have a question about short term lets and Airbnb and the planning position please contact Gordon Thomson in our Edinburgh office.


Implementing the Planning (Scotland) Act 2019
The Scottish Government has today published its timetable for implementing the Planning (Scotland) Act 2019 in its post-bill work programme to 2021. This indicates where aspects of the Act will be commenced for the purpose of enabling ministers to prepare regulations, with many sections commencing in just over one month’s time. Thereafter, it is expected that the majority of the Act will be implemented by the second quarter of 2021. Some of the key timescales are set out below: National Planning Framework The Act affords until 2024 (10 years post NPF3) to prepare a new National Planning Framework (NPF4). The work programme indicates that the Scottish Government intends to move much quicker. An NPF team has been assembled, led by Assistant Chief Planner Dr Fiona Simpson, and work is underway. Consultation will take place in Qs 1 & 2 2020 with a draft NPF4 in Q3 2020. The final NPF4 is anticipated in Q3 2021 for approval in Q4 2021. Regional Spatial Strategies The Act requires that review of the NPF is to take account of any adopted RSSs and that RSSs are to be prepared as soon as practicably possible following implementation of that part of the Act. Conventional wisdom implied that the first tranche of RSSs would be prepared, to inform and be followed by NPF4 then the first tranche of new LDPs. This update implies otherwise. Scottish Government proposes that guidance on RSSs will be published in Q4 2021, so preparation of RSSs will presumably follow this date. Local Development Plans Guidance and regulations on LDPs are anticipated to be published in Q4 2021, shortly before the majority of current generation LDPs will be adopted. Transitional arrangements will be announced shortly. Community Engagement Regulations and guidance in relation to Local Place Plans, effective community engagement when preparing LDPs, mediation in planning and changes to Pre-Application Consultation will be brought forward by Q1 2021. Other dates of note Agent of Change Principle – Q4 2019 Short Term Let Control Areas – Q4 2020 Duration of Permission and Completion Notices – Q1 2021 Guidance on “similar applications” and “significant change” – Q1 2021 Decision on whether to include a requirement to consult music venue representative body – Q1 2021 Delegation of decisions and local reviews – Q3 2021 Health impact assessment – Q4 2021 Masterplan Consent Areas – Q4 2021   See our Planning (Scotland) Act series: Planning (Scotland) Act 2019Planning (Scotland) Act 2019 - Regional PlanningPlanning (Scotland) Act 2019 - National Planning FrameworkPlanning (Scotland) Act 2019 - Local Development Plans Subscribe to Lichfields’ blog to get all Planning (Scotland) Act 2019 series sent direct to your inbox.