JR2 Update
A date has been set for the substantive hearing: 8th November 2023
What is it about? The case focuses on the Guidance for Business issued by the City of Edinburgh Council in April 2023. It examines whether a change of use prior to the implementation of a control area is always deemed a material change of use. The Scottish Government’s view is clear. Their planning circular states, “Section 26B is not retrospective, meaning that the designation of a control area does not, in itself, retrospectively deem any previous change of use of a dwelling house to use for short-term lets within that area to be a material change of use.” Therefore, this is currently the position of the DPEA for any appeals, creating a situation where the appeals body holds a different view from the City of Edinburgh Council.
What are the implications? If this case is successful, it would mean that if you started a short-term let before the control area was designated (September 5th, 2023), this change of use wouldn't automatically be considered a material change of use requiring planning permission. While you might need planning permission, the requirement depends on the specific facts and circumstances of use. There isn't a policy that determines this; the only way to be certain is to apply for a certificate of lawfulness to confirm that a change of use isn't material.
What if the case is successful? This will raise concerns for many who had previously applied for planning permission under the assumption that all existing short-term lets would require it. Since 5th September 2022, over 140 planning decisions have been made, some of which arguably might not have required planning permission in the first place if the case proves successful.
What are the implications for licensing? Given the date of the hearing, nothing can change prior to the 1st October licence deadline. Since planning permission (or proof you don’t require it) is a mandatory requirement as per CEC's licensing policy (aligned with planning policies), it also puts sections 4.10-4.13 of the licensing policy into question. Importantly, as the Scottish Government (and DPEA) align with the position of the petitioners in this case, it places all existing short-term let operators applying for a licence in a challenging position. The Scottish Government, which is introducing the licensing policy, holds a view distinct from that of the City of Edinburgh Council. This is particularly concerning as planning fees (minimum £750) and licensing fees (minimum £653) are mandated for every licence application. Moreover, the overwhelming rejection rate, with 98% of planning applications declined since 5th September 2022, further complicates matters. Many of these might not have required planning permission.
Given this immense uncertainty, cost implications, and the fact that the continuation of numerous operators across Edinburgh relies on a case verdict after the licensing deadline, this provides yet another reason to reconsider the short-term let legislation.