Does letting property on Airbnb require planning permission?

Following my posting on Twitter of an Airbnb story in the Irish Times this morning, I had a call from the owner of a small apartment building, who wanted to know if he needed planning permission to start letting it full time on Airbnb. This raises a question which was answered by An Bord Pleanála (the planning appeals board) back in 2016. I would have thought this question had been put to bed (if you excuse the pun ...). The details of the 2016 case are:

The Board decided then that

§  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.