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Category: Legislation

National Planning Framework 4: Adoption Timeline and Implications

Posted on by Fiona Campbell

On Tuesday 8 November, the Minister for Public Finance, Planning and Community Wealth, Tom Arthur, presented the Revised National Planning Framework 4 to Parliament.

See his statement here.

The ASSC responded to the consultation on this earlier this year.

An Explanatory Report that outlines the changes from Draft NPF4 to the Revised Draft is also included.

The analysis of consultation responses can be accessed here, with comments on short-term letting on p231.

The Revised Draft National Planning Framework sets out the following policy for tourism:

Policy 30

  1. e) Development proposals for the reuse of existing buildings for short term holiday letting will not be supported where the proposal will result in:
  2. An unacceptable impact on local amenity or the character of a neighbourhood or area; or
  3. The loss of residential accommodation where such loss is not outweighed by demonstrable local economic benefits.

With the traditional self-catering sector already facing an increased regulatory burden during challenging times, the ASSC has concerns about the potential impact of Policy 30.

We firmly believe that there should be no further short-term let regulations in Scotland until the cumulative effect of licensing and control areas has been fully analysed to ensure there are no unintended consequences and that they are clearly meeting policy objectives. 

 In terms of the next steps for the Draft NPF4, the revised draft will be considered by the Scottish Parliament’s Local Government, Housing and Planning Committee before being voted on by Parliament. We will keep you updated in terms of any further developments on this issue.

The analysis of consultation responses can be accessed here, with comments on short-term letting on p231:https://www.gov.scot/binaries/content/documents/govscot/publications/consultation-analysis/2022/11/draft-fourth-national-planning-framework-analysis-responses-consultation-exercise-analysis-report/documents/fourth-national-planning-framework-analysis-responses-consultation-exercise-analysis-report/fourth-national-planning-framework-analysis-responses-consultation-exercise-analysis-report/govscot%3Adocument/fourth-national-planning-framework-analysis-responses-consultation-exercise-analysis-report.pdf

In terms of the next steps, the revised draft will be considered by the Scottish Parliament’s Local Government, Housing and Planning Committee before being voted on by Parliament.

The revised policy for tourism is set out on p88 of the Revised Draft National Planning Framework:https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2022/11/national-planning-framework-4-revised-draft/documents/national-planning-framework-4-revised-draft/national-planning-framework-4-revised-draft/govscot%3Adocument/national-planning-framework-4-revised-draft.pdf

Publication Timeline

NFP4 has been subject to consultation and committee scrutiny over the last year, and was first laid before the Scottish Parliament in November 2021.  Nearly a year to the day later, the revised NFP4 has now been laid before Parliament for approval. It is accompanied by an Explanatory Report, which explains how the Scottish Government has considered responses to the initial draft NPF4 received during the preceding period of parliamentary scrutiny and consultation, in line with its statutory duty.

This is the final stage of NFP4 being examined before adoption.  The revised NFP4 will be before the Scottish Parliament for six weeks (provided there is no recess for more than four days – importantly this means the 40-day period expires just before the Christmas recess begins on 24 December).

Whilst it is before Parliament, there is the opportunity for the revised NFP4 to be debated, however, its terms will not be subject to change – it will either be approved in whole or rejected.  The Scottish Government has committed to providing an opportunity for evidence to be given by the Parliament’s Local Government, Housing and Planning Committee, to allow for an informed vote.

The legal framework for the adoption of NPF4 provides that if the Scottish Ministers change the whole or any part of their proposals in response to consultation, they must undertake “such further consultation with respect to the changes as they consider appropriate”. The legislation does not set out the circumstances in which it would or would not be appropriate to have a further period of consultation.  What is clear is there is no statutory requirement to consult further.  That said, the Scottish Ministers have a duty to consider whether further consultation is appropriate and must act reasonably (rationally) in this regard.  Despite the changes that have been made to the draft that is now before Parliament, the Scottish Government has confirmed that no further consultation will take place.

Ultimately, the final version of NPF4 can only be adopted once it has been approved by a resolution of the Scottish Parliament; if it is well received then it may well be approved by a vote before the end of the year.

The Delivery Programme published alongside NPF4 will act as a guide to all relevant stakeholders on how it will be implemented in due course. The Local Government, Housing and Planning Committee has also agreed to hold annual sessions on NPF4 to assess its impact.

Development Management Implications

NPF4 will form part of the statutory development plan on adoption and publication (assuming the Scottish Minsters commence the necessary provisions in the Planning Act, as promised).  Until then, the Revised NPF4 is a material consideration in development management decision making.

The weight to be given to it prior to publication is a matter for the decision maker – whether that is a planning officer, a planning committee, a Reporter appointed by the Scottish Ministers, or the Scottish Ministers themselves. There has been an understandable reluctance to attach much (if any) weight to the draft NPF4 to date. However, given its advanced stage, that position may now change.

Our understanding is that the publication of NPF4 will coincide with the implementation of certain parts of the Planning Act. A key provision that will come into effect is that in the event of any incompatibility between a provision of NPF4 and a provision of a local development plan, whichever of them is the later in date will prevail. That will include where a local development plan is silent on an issue that is now provided for in NPF4.

The exact procedure for publication of NPF4 and it becoming part of the statutory development plan is quite complex. This note necessarily provides a simplified overview.  Please contact us if you have any specific questions or concerns about what will happen over the next few weeks leading up to publication of NPF4, and beyond.

Thanks to Burness Paull LLP for this update.

European Commission Adopts a Proposal for a Regulation of Short-Term Rental

Posted on by Fiona Campbell

Today (7th November), the European Commission adopted a proposal for a Regulation to enhance transparency in the field of short-term accommodation rentals. This proposal aims at creating streamlined data collection and sharing obligations for hosts and online platforms. It should replace the current different and complex rules in Member States by one clear and proportionate framework for data collection and sharing throughout the EU Single Market. The new rules should complement existing instruments, such as the Digital Services Act or the Directive on administrative cooperation in the field of taxation (DAC7), which already provide public authorities with certain tools and data.

The new proposed framework (Regulation is a directly applied EU legal act in Member States) should:

  • Harmonise registration requirements for hosts and their short-term rental properties when introduced by national authorities: Relevant authorities will have to set up an online and simple registration process for hosts. Information and documentation to be provided will have to be necessary and proportionate. Once the registration procedure is completed, hosts will receive a unique registration number that will allow them to start their activity. Public authorities will need to make short-term rental rules available on national websites, so that hosts could also benefit from clear information and requirements could be respected. According to the proposal, national and local authorities retain the power to design rules and policies on short-term rentals, to deal, for instance, with health and safety issues, urban planning, security and taxation issues. In doing so, they have to respect the principles of justification and proportionality enshrined in the EU Services Directive. The data collected on the basis of this proposal should allow public authorities to better assess the situation on the ground and make more targeted and proportionate rules. The new rules also stipulate that public authorities are responsible for setting up a registration system. Existing registration schemes, at national, regional or local level, can be maintained but will have to be in line with the requirements set out in this proposal. For instance, public authorities will have to ensure that registration is possible online and to issue a unique registration number per property.
  • Clarify rules to ensure registration numbers are displayed and checked: online platforms will have to facilitate hosts to display registration numbers on their platforms. They will also have to randomly check whether hosts register and display the correct numbers. Public authorities will be able to suspend registration numbers and ask platforms to delist non-compliant hosts.
  • Streamline data sharing between online platforms and public authorities: online platforms will have to share data about the number of rented nights and of guests with public authorities, once a month, in an automated way. Lighter reporting possibilities are foreseen for small and micro platforms. Public authorities will be able to receive this data through national ‘single digital entry points’. This shall support well-targeted policy making. Public authorities, whether at local, regional or national level, will be able to request information only relevant to them. This information will be available to them via the new national single digital entry points, where platforms will make this data available. In practice, this means that, for instance, authorities from a city will only be able to request data about their city but will not get access to the data of hosts in another city, or to the data of hosts in the surrounding regions. Public authorities receiving personal data on hosts and their activity will be duly identified and authorised to receive it in full compliance with rules on personal data protection, in particular the General Data Protection Regulation. Platforms will only share the data listed in the proposal +DAC7+DSA.
  • Lighter data sharing regime for SME platforms: As a rule, platforms will have to share data on a monthly basis automatically. However, micro and small platforms that do not reach a monthly average of 2,500 hosts will have the possibility to benefit from a lighter regime
  • Allow the reuse of data, in aggregate form: the data generated under this proposal will, in aggregate form, contribute to tourism statistics produced by Eurostat and feed into the upcoming European data space for tourism. This information will support the development of innovative, tourism-related services.

Commission noted that “Short-term rentals are developing fast in the EU, largely boosted by the platform economy. They represent about one quarter of all tourist accommodation in the EU and their number is increasing significantly across the EU. This trend was confirmed during the COVID crisis: the number of short-term rental bookings during the summers of 2020 and 2021 were above the equivalent 2018 levels. In addition, the number of bookings over the first half of 2022, has increased by 138% compared with the same period in 2021. Short-term rentals have become critical for the EU tourism ecosystem, including guests and hosts, and for many communities, creating both opportunities and challenges.“

TIMELINE (1+2 years):
The Commission’s proposal will be discussed in view of adoption by the European Parliament and the Council (EHHA notes – for a year or so).
After its adoption and entry into force, Member States will have a two-year period to establish the necessary mechanisms for data exchanges.

FOR MORE INFORMATION:
Proposal for a Regulation on data collection and sharing relating to short-term accommodation rental services
Questions & Answers
Factsheet

Thanks to the European Holiday Homes Association for this update. The ASSC are founding members of the EHHA.

Press Coverage

Posted on by Fiona Campbell

Fiona Campbell, [ASSC’s] chief executive, said: “The Scottish government and councils appear to be comfortable with materially damaging a sector that represents £867 million to the Scottish economy. This draconian scheme will drive many people out of the sector.”