Is Airbnb use a planning matter?

Short stay letting (STL) is in strong demand across Scotland, with more than 9,000 properties listed by Airbnb in Edinburgh. STL is clearly an important aspect of the tourist economy. It remains in demand, with stays mostly ranging from a number of days to weeks.

STL can provide a good income for property owners, with higher rents and tenant flexibility. There has, however, been growing concern by planning authorities over the need for regulation in this area, and in particular for a specific grant of planning permission to operate STL. This concern is based on amenity impacts on neighbours (particularly where there is a common stair), loss of otherwise affordable rental accommodation, price inflation and overall lack of regulation. Those promoting STL are clearly providing essential affordable accommodation for tourism and business. 

This article will be of interest to both owners and advisers in relation to STL, as a number of planning authorities are considering or have taken enforcement action to stop it. Some notices have been appealed, with mixed success. Before acting for a property purchaser it is important to enquire whether they intend to operate STL, and if so to advise them that without specific planning permission this may be subject to enforcement action as a breach of planning control. The law appears to be that change of use from private dwellinghouse to STL could amount to a material change of use requiring planning permission, but this is a question of facts and circumstances. 

Some cases

An important case in this area is Moore v Secretary of State for Communities and Local Government [2012] EWCA Civ 1202. Although English, it is persuasive in terms of Scottish planning law, and whether a material change of use has occurred is a question of fact and degree. 

The answer depended on the particular characteristics of the use as holiday accommodation. It was not correct to say that using a dwellinghouse for commercial holiday lettings would always amount to a material change of use; nor was it correct that it could never amount to a change of use. 

In this case the inspector identified the following factors as relevant: 

• the pattern of arrivals and departures, with associated traffic movements; 
• the unlikelihood of occupation by a family or household group; 
• the numbers of people constituting the visiting group on many occasions; 
• the likely frequency of party type activities and the potential lack of consideration for neighbours. 

On that occasion the inspector considered that use of the property as part of the appellant’s holiday letting business was a material change of use. 

STL is different in character from “party flats” with a code of conduct to minimise adverse amenity effects. Frequently, the occupation is by a household group who are using public transport. Another important case is Gravesham BC v Secretary of State for the Environment (1982) 47 P&CR 142, which considered the meaning of “dwellinghouse” and concluded that the distinctive characteristic was its ability to afford to those who use it the facilities required for day-to-day private domestic existence. The court firmly rejected the notion that such a building ceased to be a dwellinghouse because it was occupied only for part of the year, or at infrequent or irregular intervals or by a series of different persons. 

In Blackpool Borough Council v Secretary of State for the Environment (1980) 40 P&CR 104 the court held: “While not every residential use of a dwellinghouse was necessarily a use as a private house, the inspector had been entitled to conclude as a matter of fact... that the character of the use of the house in question, not being a house that was constantly being let on short holiday lettings, had not been changed by the fact that it was being occupied not only by the second respondent and his family, but also by his friends or members of his office staff, or by paying tenants during the periods in question, being ‘family groups’ in the sense of persons forming one household.”

Material change of use?

It is difficult to give clear guidance, although properties which are let permanently and exclusively for STL will be the most vulnerable to successful enforcement action. The real difficulty is uncertainty on when the use of the dwellinghouse has materially changed, particularly where the use is not for full-time STL. Flats accessed by a common stair would appear to be treated differently from dwellings with their own access. In Greater London STL is now permitted as long as the total number of nights does not exceed 90 in a single calendar year and at least one of the persons providing the STL is liable to pay council tax. 

An attempt has been made to declare that the use of a dwellinghouse as a “short term holiday let” is a material change of use in s 11B of the amended Planning (Scotland)  Bill, although it does not define this term.

This section, which may not find its way into the Act, provides for Scottish ministers to issue guidance on the matter. It would seem likely that there will be some form of regulation of STL.