Edinburgh’s short term lets policy still unlawful
Opponents of Edinburgh Council’s short term lets policy have succeeded for a second time in having it declared unlawful by a Court of Session judge.
Lord Braid in the Outer House granted declarator that an amendment to the guidance for business introduced by the council in April 2023 was irrational in so far as it proceeded on a material error of law, and reduction of the amendment, on a petition for judicial review by Iain Muirhead and Dickins Edinburgh Ltd, both involved in the business of providing short term lets in Edinburgh.
The principal argument before the court was whether s 26B(2) of the Town and Country Planning (Scotland) Act 1997, which provides that “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”, applied to a change of use to a short term let which occurred before 5 September 2022, the date from which the council designated the whole of the City of Edinburgh as a short term let control area. On this point the Scottish Government took the view that the deeming provision did not apply to changes of use before a designation took effect; the council that it applied to all use as a short term let from that date, whenever the change of use first occurred.
The petitioners argued that under the structure of the Act, it was change of use, not use itself, that required planning permission; and that the council’s interpretation would involve some retrospective effect, which was sufficiently unfair that Parliament could not have intended that to have been the case: it would apply even where a certificate of lawful use had been obtained, or a previous change of use was immune from enforcement action The respondents argued that the deeming only applied prospectively, to any relevant use as from 5 September 2022; it did not operate unfairly as the council was not removing any right protected by law; and the petitioners’ interpretation would emasculate the usefulness of the provision.
Agreeing with the petitioners’ arguments, Lord Braid said planning permission was not required for the use of land per se, but only for development, which included a material change from one use to another. Parliament could be expected to have made it clearer if the council’s meaning had been intended; s 26B(2) could “more sensibly be read as applying only to a proposed future change of use”. Where a change of use had occurred before the date, the property was by definition no longer being used as a dwellinghouse, and s 26B could not apply to it.
The council’s argument also led to inconsistencies, as highlighted by the petitioners, for example as between a proprietor who had a certificate of lawful use for short term letting prior to 5 September 2022 (who the council stated would not require planning permission) and one who had been letting but had no certificate. The petitioners were correct as regards retrospectivity. The council’s argument would lead to unfairness if a previously lawful use was stopped with no right to compensation. There was no hint in the Scottish Government material that the provision would be ineffective if only applied to future changes of use.
A subsidiary argument that it was irrational for the council to attempt enforcement on the basis that s 26B applied, but even if it did not, there had still been a material change of use, was rejected.