Short-term Lets, Control Areas and planning consents

The full Opinion can be found here – 2023csoh86.pdf (scotcourts.gov.uk).

This action follows from a previous successful judicial review in June 2023 (see our blog here – https://www.cockburnassociation.org.uk/news/is-edinburghs-short-term-let-licensing-policy-really-unlawful-some-thoughts-on-the-impact-of-the-judicial-review-decision-of-june-2023/ ) which found fault in key aspects of the Council’s licensing policy, but not all of it.  This concentrated on the fact that there are two regulatory systems in play for STLs – planning and licensing.  Lord Braid found the Council’s licensing policy unlawful especially in the restrictive statements regarding tenemental properties as well as the lack of a temporary license provision.  This has now been corrected.

Planning and Short-Term Let Control Areas

This latest Opinion concentrated on the need for planning consent and the Short-Term Let Control Area (STLCA).  Section 26B of the Town and Country Planning (Scotland) Act 1997 provides: “(1) A planning authority may designate all or part of its area as a short-term let control area… (2) In a short-term let control area, the use of a dwellinghouse for the purpose of providing short-term lets is deemed to involve a material change of use of the dwelling house.”  The City of Edinburgh Council designated a STLCA across the whole local authority area on 5 September 2022, following a public consultation.  The designation was endorsed by the Scottish Government.

The issue raised by this judicial review is the scope of section 26B(2), and whether it has any retrospective effect.  In other words, does it apply in cases where a change of use to a short-term let had already occurred before 5 September 2022? The City Council essentially argued that it did. The Petitioner said not.

Retrospective control?

In his 25-page Opinion, Lord Braid finds no evidence that it was intended that the Short-term Let Control Area would have a retrospective impact on properties prior to its designation on 5 September 2022.  It did not appear it was the intention of the Scottish Government when it created control areas for it to be retrospective.  Indeed, he quotes the Scottish Government guidance Short Term Lets in Scotland: Planning Guidance for Hosts and Operators in paragraph 2.7: “It is important to note that section 26B is not itself retrospective, but also that it does not replace or alter any of the requirements for planning permission under section 26.”

Effectively, STL businesses that started on or after the 5^th when Edinburgh designated the city as a Control Area would require planning consent as a deemed material change of use.  Those that have been operating beforehand would not.  However, Lord Braid noted that a planning authority may consider that the use of a home as a secondary let (i.e. a full commercial operation which is not a primary residence) nevertheless constitutes a material change of use and therefore may require planning permission.  This would require a different approach than the STLCA designation.

What does this mean?

So what does this judicial review mean for Edinburgh, and indeed other parts of Scotland thinking of designating control areas?  Firstly, it does not have a retrospective application.  It is a useful tool in managing STLs in pressurised areas but will have little effect if that pressure already exists.

However, the decision does not mean that a change of use consent may not required – this is for the planning authority to decided.  For example, section 123 of the main Planning Act provides that carrying out development without the required planning permission constitutes a breach of planning control.  It seems clear that the City of Edinburgh Council does consider that a using residential accommodation for secondary letting (i.e. commercial short-term accommodation) is a material change of use and may seek to take enforcement action.  However, with thousands of secondary lets already operating in the city, does the Council have the resources to deal with it?

It should also be noted here that the change of use issue has been subject to planning considerations in the city for some time.  For example, in a decision issued on 2 March 2016 against an enforcement notice served on flat in the Canonmills area to stop using it for short term lets, the Reporter found that the nature of the business (e.g. frequent turnovers) indicated a pattern of use dissimilar to that of a permanent resident. Given it was in a typical tenemental property with shared spaces, he felt the protection of residential amenity was a more powerful factor and thought that the use as a commercial leisure apartment could broadly be defined as “leisure” and therefore a Class 11: Assembly and Leisure use.  As such, a Change of Use had taken place and the Council was right to take action. The appeal against the enforcement notice was therefore dismissed.

For many communities in Edinburgh, this will be a very unwelcome decision.  The fact that the City Council have declared a housing crisis illustrates the scale of the problem, of which short-term lets have contributed.  The impact of overtourism and an events-led tourism sector who see the likes of Airbnb as important partners further complicates the picture. What is certain is that the vested interests of operators and the STL industry will continue to push against efforts to regulate their businesses.

The Cockburn understands that the City Council is considering the review very carefully.

 

WHAT CAN I DO?

If you are disturbed by a Short-term let operation and believe that it is having an impact on your local amenity, you can report your concerns to the Council in several ways.

If you think that a property is used for secondary letting* and doesn’t have planning consent, you can report a Breach of Planning Control online – https://www.edinburgh.gov.uk/breachplanningcontrolsform.

It would be worth checking out planning history first by using the Planning Portal and using the simple search tools available – https://www.edinburgh.gov.uk/planningcomments.

If you are submitting comments, you may wish to consider these in the context of existing Local Development Plan Policy Housing 7 – Inappropriate uses in Residential Areas which states, “Developments, including changes of use, which would have a materially detrimental effect on the living conditions of nearby residents, will not be permitted.”  Also, the Council has guidance on STLs and planning which is worth looking at.

Not all STLs will be a material change of use.  To date, greater concern has been shown where there are shared access or shared facilities such as in tenements.

All STL operations require a license.  You can check the register of STLs here to see if an application has been made – https://www.edinburgh.gov.uk/directory-record/1542802/short-term-lets.  You can report a breach of licensing to the local authority in the same way as a breach of planning control.

 

*Secondary Letting refers to the use of a property for commercial purposes and is not a primary residence.  It is different from Home Letting, where it is a someone’s primary residence but they may let it out for a short period, or Home Sharing, where someone may let out a spare bedroom, for example.  These probably do not require planning consent.