Highland Short-Term Let Control Areas – What Existing Operators Need to Know

There is understandable confusion about what Highland's new Short-Term Let Control Areas mean for operators who are already trading.

Some existing operators believe they are completely "protected" or "grandfathered". Others have been told that every existing short-term let now needs planning permission.

Neither position is correct.

The position is more nuanced.

When do the new Control Areas actually start?

Scottish Ministers have approved the new Inverness City and Highland Rural Short-Term Let Control Areas and Highland Council has agreed that they will come into effect on 1 April 2027.

Until that date, the new Control Area provisions do not apply in those areas.

There is an important exception: Badenoch & Strathspey is already a Short-Term Let Control Area, having been designated from 4 March 2024. The relevant date for an existing operator therefore depends on which part of Highland the property is in. (Highland Council)

The key distinction: new operators versus existing operators

For a dwellinghouse changing to secondary short-term letting after the relevant Control Area comes into force, section 26B of the Town and Country Planning (Scotland) Act 1997 deems that change to be a material change of use.

In straightforward terms, a new secondary let starting after the Control Area date will require planning permission.

But that automatic rule is not retrospective.

An operator who was already genuinely using the property as a short-term let before the Control Area took effect does not suddenly acquire a new requirement for planning permission merely because the Control Area has subsequently been introduced. (gov.scot)

This was established in Muirhead

This issue was determined by the Court of Session in Muirhead and Dickins Edinburgh Ltd v City of Edinburgh Council [2023] CSOH 86.

The case concerned Edinburgh's attempt to treat its Control Area as applying to properties whose change to short-term letting had already taken place before the Control Area was designated.

Lord Braid rejected that interpretation. Section 26B does not retrospectively deem an earlier change of use to have been material simply because the property continues to operate as a short-term let after designation.

That principle applies equally to the Highland Control Areas.

However, there is an equally important second part of the judgment.

The Court did not decide that every pre-Control Area short-term let was therefore lawful or that planning permission could never have been required.

Lord Braid expressly recognised that a planning authority remains entitled to investigate whether a historic change to short-term letting was already a material change of use under the ordinary planning law in section 26. (Scottish Courts and Tribunals Service)

That distinction is fundamental.

So what is the position for an existing operator?

For an operator who began genuine secondary letting before the relevant Control Area date, the question is:

Did the original change to short-term letting amount to a material change of use at the time it occurred?

That question is one of fact and degree. There is no rule saying that every short-term let is material, but equally there is no rule saying that every pre-existing short-term let is automatically lawful.

Scottish Government guidance expressly confirms that historic changes must continue to be considered on a case-by-case basis. Highland Council's own current guidance says the same. (gov.scot)

Highland says that relevant factors can include the character and size of the property, the number of guests, frequency of arrivals and departures, whether guests typically form a single household, noise and intensity of activity, parking and waste impacts, and use of communal areas or shared access.

It also gives the useful example that a detached rural house occupied by a single household is less likely to involve a material change than a short-term let flat in a multi-unit urban building. But neither result is automatic. (Highland Council)

Being an existing operator does not mean "planning permission is definitely not required"

This is where some of the current advice is becoming confused.

The correct statement is:

The Control Area itself does not create a retrospective planning requirement for an existing operator.

That is very different from saying:

An existing operator can never have required planning permission.

If the original change of use was material under the ordinary planning rules, planning permission may already have been required before the Control Area existed.

Conversely, if there was no material change of use, there was no planning application requirement merely because the property was used for short-term letting.

Highland Council itself now says that existing operators will continue under the current arrangements unless planning permission would already have been required under existing planning legislation. (Highland Council)

What about an existing STL licence?

A short-term let licence does not itself determine the planning status of the property.

Equally, the introduction of the Control Area does not automatically invalidate an existing licence simply because the operator does not have planning permission.

Scottish Government's current licensing guidance is particularly clear: where an existing secondary-let operator has not previously established their planning status, designation of a Control Area does not automatically mean their historic change of use becomes material.

However, the operator can still face planning enforcement if the planning authority considers that the original change of use was material and should have had permission. (gov.scot)

Does the licence condition about planning change anything?

Every short-term let licence in Scotland comes with a set of mandatory conditions. One of them, Mandatory Condition 13 (often shortened to "MC13"), deals with planning permission. It is sometimes misunderstood as creating a new planning requirement.

It does not.

In plain terms, MC13 only applies in a Control Area, and only where the property actually needs planning permission. Where it does, the operator must either have planning permission or have an application waiting to be decided.

The important words are "where planning permission is required."

For an operator who was letting before the Control Area started, that takes us back to the original question: was the change to short-term letting big enough to count as a material change of use? MC13 does not answer that question by itself. (gov.scot)

Do I need to apply for planning permission or prove that I don't need it?

Not automatically.

If your short-term let use began before the relevant Control Area came into force, the Control Area does not retrospectively make that historic use a material change requiring planning permission. The question remains whether, on the particular facts and circumstances, a material change of use had already occurred under the ordinary planning rules.

Importantly, the opinion of James Findlay KC, obtained by the Association of Scotland's Self-Caterers (ASSC), was that the onus is not simply on an STL licence applicant to prove that planning permission was not required. The Council should first have an evidence-based, property-specific reason for considering that a material change of use may have occurred.

So the starting point should not be: "you do not have planning permission, therefore prove you do not need it."

If the Council identifies facts suggesting a material change may have occurred, the operator may then need to respond to that concern or consider whether a planning application or Certificate of Lawfulness is appropriate. If an operator chooses to apply for a Certificate of Lawfulness, the evidential burden then sits with the applicant to establish lawfulness.

What about operators who have traded for more than ten years?

This is another important category.

For most unauthorised changes of use, planning enforcement is subject to a 10-year time limit. Where a relevant use has continued for more than ten years without effective enforcement action, an operator may be able to establish that the use is now lawful and seek a Certificate of Lawfulness of Existing Use or Development.

The evidence of continuity can therefore be extremely important: historic booking records, accounts, advertisements, rates records, correspondence and other evidence showing continuous use should be preserved. (legislation.gov.uk)

A Certificate of Lawfulness can provide formal confirmation, but operators should take advice on their particular circumstances and evidence before deciding which planning route to use.

Establishing that no planning permission is required

A Certificate of Lawfulness is not only for long-established uses. It is also a way for an operator to establish that no planning permission is required.

An operator who began letting before the Control Area date can apply for a Certificate of Lawfulness of Existing Use or Development. If the planning authority accepts that the original change to short-term letting was not a material change of use, the certificate confirms that the use is lawful and that no planning permission was needed.

That gives the operator formal certainty, rather than relying on their own reading of the position, and it is a useful answer to any later question about planning status.

What should existing Highland operators do now?

Existing operators should not panic, but neither should they assume that the word "existing" provides complete immunity.

A sensible approach is to establish and retain evidence of:

• the date short-term letting genuinely commenced;
• the nature and intensity of the historic use;
• whether there have been significant changes since it commenced;
• continuous operation, particularly where the use is approaching or exceeds ten years;
• any previous correspondence with Highland Planning;
• any previous planning permissions, Certificates of Lawfulness or decisions stating that permission was unnecessary; and
• the property's physical and operational characteristics relevant to materiality.

Operators who want certainty should consider applying for a Certificate of Lawfulness.

For operators in the new Inverness City or Highland Rural areas, 1 April 2027 is the critical Control Area date. For Badenoch & Strathspey, the corresponding date is 4 March 2024.

The simplest way to think about it

There are really three categories:

1. New secondary lets after the Control Area date

Planning permission will ordinarily be required because section 26B automatically treats the change as material.

2. Existing secondary lets that began before the Control Area date

They are not retrospectively caught by section 26B. Their planning status depends on whether the historic change was material under the ordinary planning law.

Some will have required planning permission. Others will not. An operator can establish that none was required by obtaining a Certificate of Lawfulness.

3. Long-established uses

Where the relevant use has continued for more than ten years without enforcement, there may additionally be a route to establish lawfulness through the statutory time-limit provisions and a Certificate of Lawfulness.

The bottom line

Existing operators are protected from retrospective application of the new Control Area rule. They are not automatically protected from the planning law that already existed before the Control Area.

Equally, Highland cannot simply assume that every existing short-term let required planning permission merely because it is a short-term let.

For pre-existing uses, the underlying question remains whether there was actually a material change of use, assessed on the individual facts and circumstances.

That distinction is exactly what Muirhead established and is likely to be critical for existing Highland operators as the new Control Areas are implemented.

This is general information about the planning framework and should not be treated as property-specific legal or planning advice.

Photo: Inverness Castle and the River Ness by Roger Davies, via Geograph and Wikimedia Commons, licensed under CC BY-SA 2.0.