This blog has been prepared in light of recent enquiries into the need for planning permission for holiday lets.
Insight into the need for planning permission to use homes and buildings as holiday lets
The recent press release issued by the Government on 29th June addressed the need to launch a review into the effects of short-term holiday lets, providing an open call for evidence to help understand the impacts caused by the rise of holiday property booking apps.
This call for evidence will last 12 weeks, with the consultation closing at 11:45am on 21 September 2022.
What is the current position on planning permission for holiday lets?
Holiday homes now come in a range of shapes and sizes and found across a variety of locations. Airbnb, for example, even provide categories to choose from which include ‘barns’, ‘yurts’ and ‘chalets’ as well as those falling into the category of ‘caves’, ‘castles’ and ‘OMG!’.
Due to the wide range of offering it is difficult to offer specific planning advice which will apply to all, particularly when these holiday-lets lie in a variety of locations such as city centres, countryside or even national parks.
However, here are some general principles to consider.
The need for planning permission to use second homes as holiday lets
This is the common theme being questioned by many at the moment in light of the recent Government review.
Effectively, like a family home, a holiday let falls under planning use Class C3 of the Use Class Order, this being a dwellinghouse commonly occupied by ‘a single person or by people to be regarded as forming a single household’. A home’s use as a holiday let is not considered to be development purely by virtue of a change in its use from home to a ‘holiday home’. Since its change may not be ‘material’ and therefore may not require planning permission.
The leading case law on this is Moore v Secretary of State for Communities and Local Government (2012). Here, the Court of Appeal found that using a dwellinghouse for commercial holiday lets would not always amount to a material change, and therefore not need planning permission. Although the use of a dwelling for a commercial holiday-let may in some cases be considered a material change on a fact and degree basis, and in each case the answer would depend on the particular characteristics of the use as holiday accommodation.
The Moore case has since been cited in a number of planning and enforcement appeal cases where the use of holiday homes was the main focus. In Crosby, Liverpool (2017), planning permission for the continued use of a Grade II listed windmill building as a holiday-let was dismissed at appeal. This was namely due to the use of the historic windmill for stag and hen weekends, where the resultant noise and disturbance issues were deemed to amount to a material change of use. The Inspector applied Moore, and fact and degree, and considered that the use of the Windmill by groups of people unlikely to be from one family (the C3 use definition) for short weekend visits only was wholly different to that of a holiday let where families usually holiday for a week or so more. The use of the Windmill in this way was therefore not typical of, or similar to a Class C3 residential use.
A further recent planning enforcement appeal decision in Torquay, 2020, where the appellant was subject to an enforcement notice to cease the use of the dwelling for commercial holiday accommodation also applied Moore. Here, the Inspector took account of the fact that the property in question was a 7-bedroom house, which was sometimes advertised as being available for sleeping up 17 people. The Inspector found that this was clearly an indication of a more intensive use than which is expected by a family of single household. The intensity of the use as a holiday-let for this number of people was further compounded by the number of complaints received by neighbouring occupiers with the Inspector commenting that the ‘activity by people living in the property whilst enjoying their holiday, particularly in the good weather, may lead to exuberant activities within the garden including use of swimming pool and hot-tub. The reasonableness of individuals and their ability to judge what is appropriate behaviour is, in my experience, diminished when feeling in the holiday spirits’. Based on the evidence of substantial use beyond the scope of what would normally be considered use by a single household, as a matter of fact and degree, the use as a holiday let in this instance resulted in a distinct change in character leading to a material change of use. Planning permission would therefore be required to regulate the two holiday-let examples referenced above.
Constructing a new building for a holiday let and the need for planning permission
The construction of a new building either within or outside the curtilage of a property to be designed and used for self-contained accommodation will more than likely require planning permission since a new separate dwelling is being created. The General Permitted Development Rights (Sch. 2, Part 1, Class E) – subject to criteria – allow the construction of outbuildings for ‘a purpose incidental to the enjoyment of a dwellinghouse’. This doesn’t therefore allow for a newly built outbuilding with all the necessary day-to-day living facilities, to be used for a holiday let use.
Planning permission to use an existing building as a holiday let
Using an existing residential unit for self-catering holiday purposes follows a similar line. Section 55(2)(d) of the Town and Country Planning Act 1990 allows ‘the use the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such’. The use as a holiday-let is therefore unlikely to be considered to meet this test, and planning permission is expected to be required.
This really applies in this context to the use of an existing annexe which serves a family member, say a ‘granny annexe’. When new annexes are created, particularly to accommodate elderly relatives, a planning condition is expected to be applied to the planning permission which restricts the use of the annexe to accommodate family members only and to not be sold off as a separate dwelling. It is important to check an existing planning consent for this, particularly when purchasing a property which has ancillary accommodation provided serpately to it as using it as a holiday-let may not be an easy proposition.
Attempts to control second homes to be used as holiday lets through planning control have since proved limited. In planning law, a dwelling remains C3 use whether it’s a principle residence, a second home or let as a holiday home. This of course attracts both public and government controversy, but use of development management policies and the imposition of conditions to restrict occupancy to meet local residency-led criteria have been used, albeit these can only really apply to when the dwelling is first created. The referendum held in Whitby Yorkshire (June 2022) which called for restrictions to new build properties being sold as second homes can be considered an agent to this. Ultimately planning permission is made in accordance, first, with the development plan policies. If development plans include such policies then there is potential for new build dwellings to be subject to ‘locals only’ conditions subject to the appropriate circumstances.
The Greater London issue
Greater London apply separate rules on short term lets through a restriction imposed by s.44 of the Deregulation Act 2015 meaning that 1) dwellinghouses in Greater London cannot be let out for more than 90 nights in total over a calendar year; and 2) that while they are being let out, the person that provided the accommodation must be liable to pay Council Tax during the period of short stay. Not meeting these two tests would be unlawful and planning permission is required for periods that add up to more than 90 nights within the calendar year.
This restriction is actually a loosening of a previous restriction, given away by the fact s.44’s full title is ‘Short-term use of London accommodation: relaxation of restrictions’. The relevant legislation relating to the use of homes as holiday lets was previously through the Greater London Council (General Powers) Act 1973. S.44 of the Deregulation Act amended this to clarify that the use as temporary sleeping accommodation of any residential premises in Greater London does not constitute a change of use (for which planning permission would be required) if certain conditions are met (these being the 2 exception tests above).
Key things to take away…
- The use of a home as a holiday-let does not automatically mean a material change of use has occurred and that planning permission is required.
- Be mindful of the size and offering of a holiday-let and the sensitivity of its location. Any increased intensity of its use which would render it outside of what would be considered the ‘normal’ characteristics of a family home may constitute a material change and planning permission may be required, for example, large groups staying at once or use only at weekends.
- When purchasing a home with liveable, self-contained accommodation in the form of an annexe. Check first that planning permission for it exists, and if it does, are there restrictions for its occupancy by a family member only.
- Creating an annexe for use by anyone other than a family member, with no real degree of dependency on the host dwelling will likely constitute development and planning permission will be required.
- Be aware of restrictions in greater London regarding holiday lets and the two key tests which must be met when offering a holiday let.
The Planning Consultancy and Planning Legal team at Paris Smith are on hand to advise on planning matters relating to new, or conversions into residential use.
For further legal advice on the use of homes and holiday lets, please see or blog “Can a residential long-leaseholder use their property for holiday lets?” which was also featured in the Estates Gazette (2021).