Short-term lets regulations: an imperfect solution

STOP PRESS:- THURSDAY 18 FEB 2021 1330hrs
The Minister has withdrawn the Licensing Regulation

I launched the Homes First campaign in 2017 to highlight problems with the legislative and regulatory regime around short-term lets (STLs). Throughout my time as an MSP, constituents in the Lothian region have contacted me to express their concern at the impact STLs have on their communities. I have published a range of papers on different aspects of the topic, including taxation, key safe deposit boxes and planning, and have proposed various solutions.

I support two key regulatory changes.

The first is to clarify and tighten up the planning system so that there is better and more effective oversight on the change of use from residential dwellings to commercial short-term lets – when a home stops being a home and becomes a commercial STL.

The second is to give local authorities the powers to licence STLs to ensure that they comply with basic fire, electric and gas safety; have appropriate public liability insurance in place; and that the operators are fit and proper persons.

These two regulatory changes have been the focus of my campaigning. They allow local authorities to regulate STLs in their area as they see fit, reflecting local conditions. Planning and licensing reform are NOT about imposing a uniform solution across Scotland but giving councils the powers that they need to do what they think is appropriate in consultation with the people they represent.

That, in short, is the job of Parliament – to pass regulations that deliver on the above.

The regulations

However, we have instead, two regulations that are in their own ways flawed.

The Town and Country Planning (Short-term Let Control Areas) (Scotland) Regulations 2021 provides for planning authorities to create Short Term Let Control Areas. Within these Control Areas, all STLs must seek planning consent for a change of use from residential to commercial short-term letting.

The Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2021 grants powers to councils to establish a licensing regime for STLs.

It is worth bearing in mind that such regulations (or Scottish Statutory Instruments) are secondary legislation. That is to say, there is primary legislation (Acts) that give explicit powers to Ministers to introduce secondary legislation. In the case of the planning regulations, this is 26B(5) and 275 of the Town and Country Planning (Scotland) Act 1997. The licensing order is introduced using sections 3A(1), 44(1)(b) and (2)(a) and (b) and 136(2) of the Civic Government (Scotland) Act 1982.

The primary legislation from which the powers to introduce these regulations derive stipulates that the regulations must be subject to the affirmative procedure. That means that the statutory instruments become law only if Parliament approves it.

Importantly, however, there is no opportunity for Parliament to amend such legislation.

Parliamentary scrutiny

The regulations were debated at a meeting of the local Government and Communities Committee on Wednesday 3rd February. The Official Report of proceedings can be read here and the Committee’s report to Parliament is available here.

I opposed both regulations and urged the Minister to withdraw them and come back having considered the objections.

I object to the Planning Regulation because it requires Scottish Ministers to approve Short Term Let Control Areas before they can be designated. It’s a power of veto over a matter that should be wholly and exclusively within the competence of local authorities. In the Scottish Government’s consultation on this question, it was claimed that this is similar to the process of designating Conservation Areas. Section 61 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, however, only requires Councils to notify Ministers and when I challenged the Minister on this at Committee, he was forced to write to the Committee and apologise for the error.

I object to the licensing regulation because bed and breakfast businesses are within its scope despite it never having been intended that they would be. The Scottish Government denies this and says that they have always been included, pointing to a rather ambiguous sentence in the 2020 consultation paper.

There is a way round both of these objections if the Minister was prepared to withdraw the regulations and reconsider, but so far he has refused to do so. [see STOP PRESS above- the Licensing Regulation has been withdrawn]

I believe that legislation should be based on informed consultation with those who it affects and that powers for local government should not be subject to central government vetoes.

Thus, despite having campaigned hard for these measures, I find myself in the odd position of voting against the regulations. I would prefer not to be in this position, but without action from the government to improve the legislation, I have little choice.