§ the
use of an entire residential apartment on a year-round basis for a series of
short-term holiday lettings constitutes a change of use;
§ such
change of use raises planning considerations that are materially different to
the planning considerations relating to the ‘normal’ use as a residential
apartment;
§ the
change of use is a material change of use, and therefore constitutes
‘development’ under the Planning and Development Act 2000, as amended; and
§ such
‘development’ is not exempted development, and therefore requires planning
permission.
The case, which received
considerable media attention at the time, concerned whether the use of residential apartment for short
term holiday lettings is or is not development or is or is not exempted
development. The case was taken by Temple Bar Residents and the property
in question was Apartment 1A, 5 – 5A Crown Alley, Dublin 2. The property owner
had advertised the property for sale at a price which could only be justified by
the fact that it generated €79,000 in 2015 from short-term lettings by way of
Airbnb.
The case was taken first to
Dublin City Council via a referral made under Section 5 of the Planning and
Development Act 2000, as amended, and then to An Bord Pleanála under the same
provisions. For those who wish to view them, the case references are: Dublin
City Council - RL3490 and An Bord
Pleanála - PL29S.RL3490. The Board’s assessment of the case and decision can be
reviewed at http://www.pleanala.ie/casenum/RL3490.htm
Dublin City Council’s
Declaration on the Section 5 referral stated:
No provision is made in the Planning and Development Act 2000 (as
amended) or the Planning and Development Regulations 2001 (as amended) by which
the said change of use would constitute exempted development. It is concluded
that the proposed change of use of the subject apartment for short term letting
constitutes development, being a material change of use having regard to its
character and its material impacts on the proper planning and sustainable
development of the area.
The Board’s Planning
Inspector noted how, this question invites an assessment under the following
three headings:
(i) Has a change of use occurred?
(ii) If so, has a material
change of use occurred?
(iii) If development has
occurred, is this development exempted development?
The following summary of
the Inspector's assessment under each point sets out the basis for the Board’s final decision
as set out above.
(i) Has a change of use
occurred?
The critical point arrived at
was that in light of definitions of “house”, “habitable house”, and “dwelling”
cited, no one staying in the subject apartment is now a resident, all are
visitors, and so the presence of a residential use has ceased to apply, i.e. no
one staying in the apartment lives there, resides there, considers it their
home or their abode. Thus, the subject apartment is no longer in use as a
private residential apartment but as short-term holiday lettings accommodation.
It was therefore concluded that a change of use had occurred. However, for a
(ii) If so, has a material
change of use occurred?
Under Section 3(1) of the Planning
Act 2000, as amended, for a change of use to be considered development, it must
be a material change of use. The
Planning Inspector therefore considered this point and concluded that the use
of the subject apartment as short-term holiday lettings accommodation raises
matters that differ from those that would arise under any assessment of this
apartment for residential use. Thus, in accordance with planning case law (Monaghan
County Council -v- Brogan), the test for a material change of use of the
apartment was met and so its use as short-term holiday lettings accommodation was
found to constitute development.
(iii) If development has
occurred, is this development exempted development?
The Inspector then had to
consider whether the Planning Acts or Regulations contain any section or
article under which this development could be considered to be exempt development.
The Inspector noted the following points:
§ The
Act in defining “house” and “habitable house” effectively defines residential
use. However, neither the Act nor the accompanying Regulations define short-term
holiday lettings accommodation or refer to this use.
§ Under
Article 5(1) of the Planning and Development Regulations, 2001 – 2015, the
definition of “business premises” leads on to the definition of “excluded
premises”, which refers to the provision of “overnight guest accommodation”. A
common dictionary definition of “guest” is “a person who is invited to visit
someone’s home” or “a person staying at a hotel or guest house”. It thus does
not include within its ambit the self-catering visitor that characterises the short-term
holiday lettings use in question.
§ Neither
the Act nor the Regulations state that the use of an apartment as short-term
holiday lettings accommodation is exempted development. If the view is taken
that this use is analogous to that of a hostel, then it could be said to be
encompassed by Class 6 of Part 4 of Schedule 2 to Article 10 of the
Regulations. However, as the residential use of an apartment is not included
within this Class or any other Class of the said Part 4, the possibility that
the material change of use of the subject apartment from residential use to
short-term holiday lettings is exempted development does not arise.
Accordingly, the Inspector concluded
that the material change of use of the subject apartment from residential use
to short-term holiday lettings use is development, which is not exempted
development.
The Board's conclusion
In the light of the Inspector’s
assessment, it was concluded that the change of use of Apartment 1A, 5 – 5A
Crown Alley, Dublin 2, from residential use to short-term holiday lettings use
was a material change of use. Accordingly, this change of use constitutes
development under Section 3(1) of the Planning and Development Act, 2000 –
2015, which is not exempted development either under this Act or the
accompanying Planning and Development Regulations, 2001 – 2015.
The Board’s final decision:
On the 17/10/2016, the Board unanimously
upheld its Inspector’s recommendation and decided:
(a) That the use of a
residential apartment for short-term holiday lettings, as described above, at
Apartment 1A, 5 – 5A Crown Alley, Dublin 2 constitutes a change of use,
(b) The change of use to an
apartment for short term holiday lettings, as described above, raises planning
considerations that are materially different to the planning considerations
relating to the permitted use as a residential apartment. In particular, (i)
the extent and frequency of coming and going to and from the apartment by short
term renters and servicing staff (ii) associated concerns for other residents
in respect of security and general disturbance and (iii) the fully commercial
nature of the activity,
(c) Thus, the change of use is
a material change of use and is development, and
(d) Neither the Planning and
Development Act, 2000, as amended nor the Planning and Development Regulations,
2001, as amended provide any exemption in respect of such a change of use.
The change of use of a
residential apartment to an apartment for short term holiday lettings is
development and is not exempted development.
The impact of the decision:
The impact of this decision
was that then Department of Housing, Planning, Community and Local Government produced
and issued a Circular on 22 December 2016 to address this issue. It was
circulated to planning authorities and other interested parties.
The Department’s Circular
explains the differences between properties that are:
a) only made available for
short-term letting purposes on an occasional basis or for particular periods of
the year,
b) partially occupied by the
residential owners on an ongoing basis, and
c) exclusively used for
commercial short-term letting purposes on a year-round basis.
The Department Circular
directs planning authorities to focus planning enforcement action on scenario
(c) above, entire properties which are used for commercial short-term lettings
on a near-continuous basis.
Planning authorities are
encouraged to carry out enforcement action where necessary to ensure that
properties in the scenario (c) above are not operating in contravention of planning
requirements.
What can you do?
If you have a question or
query on any of the above, please give me a call. I note how anyone can complain
to the Enforcement Section of a planning authority and/or refer a question to
one as to whether the use of a particular apartment, house or other property for
Airbnb or other short term letting constitutes unauthorised development using
section 5 of the Planning and Development Act.
Planning authorities must investigate
all complaints made to their enforcement sections and can initiate enforcement
action even in the absence of third party complaint.
Written by Brendan Buck.
