New start date announced for short term lets area control area for Badenoch and Strathspey
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The new short-term lets control area for Badenoch and Strathspey will come into force at the start of next month, it has emerged.
The local authority revealed the new starting date of March 4 after the Strathy raised complaints made by a local STL operator in Kingussie over the sector’s treatment.
Gordon Thomson has described himself as a member of the ‘The Forgotten 121’ and said that the long-running uncertainty has been taking its toll on accommodation providers’ mental health.
The council said it will shortly be writing to applicants of pending planning applications to ask how they wish their applications to proceed.
Mr Thomson said the local authority had made many local STL operators shell out money and jump through hoops by applying the controversial policy retrospectively.
But said the Court of Session had then decided otherwise in the case of Edinburgh City Council who are pioneering the control area in the capital.
Mr Thomson commented: “The council has sat on all planning applications made for retrospective planning for properties commenced in last 10 years despite, in law, being required to determine within two months.
“No licenses can therefore be granted.
“This is causing mental distress to operators, inability to obtain finance due to lenders requiring license grant, a number of operators giving up due to uncertainty and cost.
“Edinburgh, the other controlled area, has so far refused 98 per cent of similar applications so why apply?
“A total of 121 local operators are caught in this trap – I am one of them.
“We are taking bookings for summer, next Christmas and New year with no idea whether we can honour.
“It is a unreasonable position to put anyone in – businesses, folk relying on the income to top up pensions, cleaners – over 70 per cent involved in the industry are women, local businesses relying on the tourist and indeed the families booking their holidays
“It is time for the council to accept they have no retrospective powers and grant licenses before further damage occurs. It is time they complied with the law.
A Highland Council spokesman acknowledged there had been difficulties with the process.
He said: “The council understands the frustration felt by the short-term let market around the new licensing regime and the forthcoming STL control area but equally understands the frustration felt by many local residents the impacts short-term letting is having on our communities.
“The new licensing requirements and short-term let control area proposal are part of an emerging, overlapping and in some places contradictory legislation landscape which has been subject to multiple legal challenges and changes in guidance from Scottish Government since its first introduction.
“All of this has influenced the advice the council has been able to provide at any point in time.
“It should be noted that the council is duty bound to take the most recent guidance and legal rulings into consideration in the determination on how we intend to proceed to implement the STL control area.”
On the recent Judicial Review against Edinburgh City Council’s STL control area, he said: “Whilst confirming that not all properties that have previously traded as a short-term let where the owner/occupier does not reside will need planning permission, it confirm that where the use of a dwelling house as a short-term let has resulted in a ‘material change of use’ previously, it would still require planning permission before a licence can be issued.
“The issue around determining what is a ‘material change of use’ is, is not straightforward and is required to be considered on a case by case basis.
“Additionally, it is a condition of the licensing act that planning permission, where required, is in place and it is for the operator to demonstrate that they do not need planning permission to obtain the licence where the property is located within a short-term let control area.
“Unfortunately, there is no easy way to do so without either applying for planning permission or a certificate of lawfulness.”
A number of information sessions are planned by the council to help inform the public and operators. These are:
• an online meeting on February 22;
• two in-person meetings in Aviemore library on February 28 at 2pm and 7pm.
The council has said further information will be made available shortly.
Kingussie STL operator claims that council is acting 'unlawfully'
Mr Thomson's interpretation of the council's stance and legal rulings to date is as follows:
"Whatever our views on the use of residential property for holiday let we can surely agree that change must be carried out lawfully
"Highland Council made it a requirement of the new license for STL that residential property within the proposed controlled zone of Badenoch and Strathspey obtain planning permission for such use, not just for future change to such use but also for property changed to such use in the past, in other words they require retrospective planning.
"However the Judicial Review of December 1, last year, declared that the controlled zone legislation only added such a power for new property, after the controlled zone came into effect. Could not justify a retrospective demand.
"Badenoch and Strathspey has not yet come into effect so all such demands under statute are unlawful.
"All councils' planning departments have the power to decide a change of use is 'material' requiring planning, however, the said Judicial Review stated whether change of use was to be regarded 'minor', not requiring planning or 'material' had to be decided as at date of that change and not based on some new view taken today unless the council was prepared to compensate businesses removed.
"We have a rich history of holiday homes stretching back decades. In the past such use has always been regarded as minor not requiring planning so a blanket requirement for planning under this heading is also unlawful."
