No retrospectivity applies to short term letting law

09 Jan 2024

Edinburgh City Council’s introduction of a restriction on the use of dwellinghouses as short term lets does not apply retrospectively, the Court of Session has ruled in allowing a petition by a claimant against the law.

The city-wide Edinburgh Short-term Let (STL) Control Area came into force on 5 September 2022, which meant that the use of a residential property for short-term let accommodation would constitute a change of use requiring planning permission. It required a landlord to need to either have planning permission in place, or an ongoing application for planning permission, or have it in place confirmation from the council that planning permission was not required.

The claimant sought confirmation from the court that the use of a dwellinghouse within a short-term let control area for the purpose of providing short-term lets was not deemed to involve a material change of use of that dwellinghouse in terms of s.26B(2) of the Town and Country Planning (Scotland) Act 1997 where that use predated the designation of the area as a short-term let control area. Confirmation was also sought that the local planning authority’s adoption of an amendment to its non-statutory planning guidance was irrational in so far as it proceeded upon a material error of law.

Lord Braid in finding in favour of the claimant, held where there was a deemed change of use for all properties already lawfully being used for short-term lets to that same use, there was no logical basis for differentiating between properties according to how that lawfulness was acquired, nor did s.26B(2) attempt to do so. If one operator had a certificate of lawful use but the other did not, it was not obvious why they ought to be in a different position from each other as of 5 September 2022. The council’s argument that the operator with a certificate of lawful use need not apply for planning permission, whereas the other operator would be bound to do so, was unfair and illogical, the judge opined.

The court held that the Scottish Parliament did not intend s.26B to have retrospective effect by requiring planning permission to be applied for where there had already been a change of use. Such an intention would have been made clear in express terms the judge decided. Thus the claim succeeded.

However the court ruled that there was there was nothing inherently wrong or irrational in the aspect of the council’s guidance which stated that in Edinburgh an STL licence holder would need to have either planning permission, or an ongoing application for planning permission, or confirmation from the respondent that planning permission was not required.

Muirhead v City of Edinburgh Council;

Date: 1 December 2023

Ref: [2023] 12 WLUK 2