Crackdown on short-term lets ruled 'unlawful' for a second time

Short-term-let operators took the council to court last month as they challenged the roll-out of the city’s 'control area'.

Crackdown on short-term lets in Edinburgh ruled unlawful for a second time by Lord Braid iStock

A crackdown on short-term lets in Edinburgh has been branded “unlawful” for a second time.

Short-term-let (STL) operators took the council to court last month as they challenged the roll-out of the city’s “control area”, which is designed to manage high concentrations of holiday lets.

But Lord Braid described the local authority’s approach as “unfair and illogical”.

Issuing his decision today on Friday, he said it could not be applied retrospectively, making the council’s requirement for all landlords of entire property STLs to seek planning permission unlawful.

He said the petitioners – who in court argued the council was “at odds” with the Scottish Government on the issue – were “correct in submitting that planning permission would need to be applied for” even if it had already been obtained prior to that date.

The ruling follows a judicial review last month and is likely to have huge ramifications for Edinburgh’s STL regulation as a whole.

Five months after parts of the council’s licensing policy to regulate holiday lets were found unlawful, another judicial review was brought by operators – this time looking at the city’s new planning rules for those who let out whole properties on Airbnb and similar sites.

The focus of the latest challenge was whether requirements of the city-wide “control area” designed to manage high concentrations of STLs apply to those who were already operating prior to its implementation on September 5 last year, or just people changing the use of their property after that date.

“Consider the example of two operators each using a property for short-term letting on September 4, 2022, and each doing so lawfully because the change of use in each case was not material,” the judge wrote.

“One had the foresight to apply for and obtain a certificate of lawful use (which merely declares that the use is lawful) but the other did not. It is not at all obvious why they should be in a different position from each other as of September 5, 2022.”

Lord Braid also said the application form for Edinburgh’s STL licencing system “actively discourages anyone from applying who does not have either planning permission” or an application in the pipeline.

He said: “That does in my view go too far, since it fails to recognise that there will be cases where planning permission is not required.”

The case centred on the council’s interpretation of Scottish Government legislation, which states the use of an entire property as a short-term let “will be a material change of use requiring planning permission” in a control area.

Councillor James Dalgleish, planning convener for the City of Edinburgh Council, said: “We acknowledge today’s judgement and will now consider our next steps in more detail.

“We introduced the short term let (STL) control area to help us manage the number and location of STLs across the city. We continue to face uniquely difficult housing pressures with a small but densely populated city centre and fast growing population across the city as a whole.

“We have to strike the right balance between promoting our visitor economy while looking after our residents who live here all year round and, having just announced a housing emergency, it’s more important than ever that we find ways of bringing homes back into residential use.

“It’s important to point out that, following today’s ruling, residential properties that began being used as STLs after the control area came into force on 5 September 2022 still require planning permission. Those that began before that date may still need it and will be considered on a case by case basis.”

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