As a new season of celebrity Traitors grips the nation with claim, counterclaim and intrigue from a Highland Castle, local STL owners will also be wondering what to believe, as they consider what the establishment of 2 new STL Control Areas (STLCAs) in the Highlands might mean for the planning status of their properties.
On 28th September the Highland Council’s Economy and Infrastructure Committee agreed to formally propose two further STLCAs for designation. These proposed control areas, which will include Inverness City and all of the West and North-West Highlands, now need to be formally approved by Scottish Ministers before they can be adopted by the Council.
One of the main talking points the proposals have sparked is whether the formation of these Control Areas will require existing secondary STLs to secure planning permission, or whether they will be exempt.
Councillor Patrick Lorgue raised this matter at the Committee. He noted how a recent briefing document to Members which stated that existing STLs would not automatically require Planning Permission or a Certificate of Lawfulness, seemed to contradict advice received at an earlier Area Committee that a Certificate of Lawfulness would be the ‘normal way’ for an operator to prove that Planning Permission was not required. In response, the Council’s Legal Services provided the rather enigmatic explanation that “a Certificate of Lawfulness would be one way of demonstrating or evidencing it, but not the only way…”
In Traitors the TV show, such an equivocal statement would surely have become the subject of fevered debate at that evening’s round table discussions. In September’s committee however, it passed without further challenge. So what is the situation? Is the Council being ‘100% faithful’ in the way it is representing the planning position to existing STL owners?
In my opinion, possibly not. Technically, the Council is correct to reiterate that the planning requirements specifically for STLCAs written into section 26B of the Planning Act, only apply to future STLs and not those that are already operational.
However, what I don’t feel has been particularly well explained in either the Committee papers or the discussion that took place at the meeting, is the fact that under section 26 of the Planning Act, all Council’s in Scotland have actually had powers since 1997 to insist that any ‘material change of use’ must be formalised through the grant of planning permission. Importantly, this provision can also (up to a point) be directed to historic changes of use. For many decades now this measure has allowed Council’s to take control of changes of use where there has hitherto been no planning scrutiny.
It’s perhaps unfair to be too critical of the Council on its selective explanation of this position, as this is all pretty technical stuff. And importantly, for as long as the wrong question is being asked about STLs and planning, ie. ‘do existing STL operators need to apply for planning permission in an STLCA?’, the Council is technically correct by answering in the negative. However, when these questions are asked, what I think would be much more helpful in almost every case, would be to also offer a fuller explanation in reply, noting the existence of both Section 26 and Section 26B, and providing some description on how Section 26 in particular has been used elsewhere in such situations.
On this final point, existing Highland STL operators should take note. In Edinburgh in recent years, the STL licence renewal stage has provided an opportunity for the Council to use section 26 rather than section 26B as a means of refusing literally hundreds of Certificate of Lawfulness applications for existing STLs. By extension, it has subsequently enabled the Council to refuse hundreds more of the planning applications that have followed.
Mindful of all of the above, in the aftermath of the recent Committee the Association of Scottish Self Caterers (ASSC) wrote to the Highland Council last week, seeking assurances that it would not use section 26 in the same way. While I can only applaud the energy of the Association to advocate for its members so swiftly on this issue, I’m not so sure that the Council will voluntarily agree to any proposals that could fetter its discretion to use section 26 in any way.
Accordingly, if the political will continues to be there, I think in the fullness of time it’s probably quite likely that existing STLs in these areas will need to show that they either have a Certificate of Lawfulness or Planning Permission. I refer to the ‘fullness of time’ because I also think it’s unlikely that the Council will use its discretionary planning enforcement powers any time soon to chase up all existing STLs that don’t currently have such consents in hand. As was the case in Edinburgh, it seems more likely that it will rely on the STL licence renewal process as a relatively timeous and resource-efficient way to flush these situations out instead.
So with such planning threats lurking around, are there ways for existing STL operators to earn themselves a ‘shield’ and avoid an untimely demise? Certainly the evidence from across the country seems to be that those that move quickly to try and get their planning house in order, tend to be dealt with more charitably than the Johnny-come-latelys who only act when pushed.
Contour Planning considers that there are currently 3 property categories in the affected areas where early action might be advisable. We would therefore welcome early discussions with any such operators.
The first of these categories are properties that have been operated as STLs in an uninterrupted manner for at least 10 years. If operators have good evidence to support such ongoing use (ideally a full schedule of all guests), the Council should be persuaded to grant a 10 year+ Certificate of Lawfulness for existing use.
The second category of properties do require planning permission, but have been show in the past to be of a form that the Highland Council can support in planning terms. The policy-approach the Council has already taken in its Badenoch and Strathspey STLCA recognises that properties which will only have a very limited local market (ie. that are either very small or very large), and which seem highly unlikely to cause amenity problems (ie. that are either adjacent to high footfall generating commercial uses or in isolated locations), are probably well-suited to STL use.
The final category of properties is a curious one. The Council’s ‘Planning Permission for Short Term Lets’ webpage sets out example situations where Certificates of Lawfulness might be issued (and where section 26 therefore won’t be invoked). Here it notes that a “detached house in a rural location used by a single household as a short term let is less likely to involve a material change of use”.
This category in particular really illustrates the limits of planning as a big stick to ‘sort out’ STLs. Given the partial purpose of designating an STLCA is to help protect local housing resources, the irony cannot be lost on anyone that this type of housing is probably both the most sought after by local people as well as the most difficult to replace in rural areas. Nevertheless, the pages of its own website show that the Council seems to accept that the loss of such housing to STLs might not require planning permission at all!
While these particular categories of property seem to offer the best route to success at the current time, Contour Planning would be delighted to have a chat to any STL operators in the newly proposed Highland STLCAs to see if we can assist you on your planning journey. Over the last 5 years we have delivered over 100 STL-based planning consents across Scotland, and consider that our record in terms of quality and outcomes in this field is one of the very best in the country.
(5 minute read)
If you want to speak to Angus about anything at all concerned with planning, feel free to Get in touch on 07729 873829, or by email at angus@contourtownplanning.com