The Court of Session has confirmed that designation of a short term let control area does not create a requirement for planning permission for a short term let use that commenced prior to the designation.
Short term lets
The growth of short term holiday lets led the Scottish Government to introduce a licencing regime, and a power for planning authorities to designate short term let control areas (STLCA).
Court of Session decision
The Planning (Scotland) Act 2019 added section 26B to the Town and Country Planning (Scotland) Act 1997. That contains the power to designate STLCAs, and states:
"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 Court of Session held this deemed material change does not apply where a change of use to a short-term let had already occurred before designation of the STLCA. Had that been the intention of the Scottish Parliament, it would have made that clear in express terms, or at least, language which was clearer than that used. The interpretation referred to in the City of Edinburgh Council's non-statutory guidance was therefore incorrect.
Consequences
The requirement for planning permission therefore depends on whether the short term let use pre-dates the designation of the STLCA (5 September 2022 for the City of Edinburgh):
- Pre designation – planning permission required if there was/ is a material change of use
- Post designation – planning permission is required because there is a deemed material change of use, by section 26B.
Material change of use
As the Court noted, whether a short-term letting use does amount to a material change of use is a question of fact and degree depending on the individual circumstances of the accommodation.
That is illustrated by a recent certificate of lawfulness appeal decision. The reporter held the use of a flat in Linlithgow for short term letting did not differ materially from the previously established use as a dwelling and therefore did not require planning permission.
The reporter noted there was very little that would distinguish the flat in its present use from a flat used as a dwelling; and that it is not necessarily true in every case that the high turnover of individuals in a short term let creates noise and nuisance for adjoining residents. Given the size of the flat, its self-contained nature, its defined parking, and the layout of the square, there is relatively little opportunity for such adverse interactions between guests and residents of neighbouring flats.
The reporter's comments show how the materiality of the change is dependent on the individual circumstances. That is much easier to assess where there is evidence of the actual use (application for certificate of lawfulness of existing use, enforcement notice appeal); it is more difficult where the use has yet to commence (application for certificate of lawfulness of proposed use).
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