https://www.simplicitylegal.co.uk/business/commercial-conveyancing-leases/A confirmation was recently made by the Court of Session that the classification of a short-term let control area does not necessitate planning permission for a short-term let use that began anterior to the designation.
Temporary renting
The expansion of short-term holiday rentals prompted the Scottish Government to implement a licensing system and grant planning authorities the authority to establish short-term let control areas (STLCA).
Result of the Court of Session
Section 26B was appended to the Town and Country Planning (Scotland) Act 1997 by the Planning (Scotland) Act 2019. That includes the authority to designate STLCAs and declares:
“In a short-term let control area, the use of a dwelling house 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 decided that this presumed material change is not applicable in situations where a short-term lease underwent a change in purpose prior to the STLCA designation. If that had been the intention of the Scottish Parliament, it would have been explicit in its language or, at the very least, utilised more precise language. Therefore, the interpretation referenced in the non-statutory advice of the City of Edinburgh Council was inaccurate.
Resulting consequences
Therefore, whether the short-term rental use predates the designation of the STLCA (5 September 2022 for the City of Edinburgh) will determine whether planning permission is required.
- Pre-designation planning permission is necessary in the event of a substantial alteration in use.
- In accordance with section 26B, post-designation planning permission is necessary due to a presumed material change in use.
Change of materials
The Court observed that the decision of whether a short-term leasing use constitutes a material change of use is contingent upon the specific circumstances of the accommodation and is a matter of fact and degree.
A recent appeal decision involving a certificate of lawfulness exemplifies this point. The reporter maintained that the utilisation of a flat in Linlithgow for short-term lettings did not significantly deviate from its previously designated use as a domicile, and thus did not necessitate planning permission.
The reporter observed that there were a few factors that would separate the flat in its current state from one that had been occupied as a dwelling. Furthermore, the statement that frequent noise and disturbance for adjacent residents are not inherently consequences of a short-term lease wastage is not universally applicable. The square’s design, the dimensions of the flat, its self-contained characteristics, and the designated parking area collectively reduce the likelihood of such negative interactions occurring between guests and occupants of adjacent flats.
The comments made by the reporter illustrate how the significance of the alteration is contingent upon specific contextual factors. This is considerably simpler to evaluate in cases where evidence of the actual use is available (e.g., enforcement notice appeal, application for certificate of lawfulness of existing use); it becomes more challenging in situations where the use has not yet begun (e.g., application for certificate of lawfulness of proposed use).