- Something was said about renting out your flat or house on a short-term let and the consequent requirements for a licence from the local authority in both our February 2022 Bullet Point Update 2022 Bullet Point Update 2 – Licensing Shake Up for Airbnb’s & Short Term Lets | Mitchells Roberton (mitchells-roberton.co.uk) and again in our September 2022 Bullet Point Update 2022 Bullet Point Update 9 – Short-Term Lets & Licences | Mitchells Roberton (mitchells-roberton.co.uk). This note does not rehearse all that but focuses on an important case decided this December concerning the need not only for a licence but also for planning permission for such lets. But before turning to look at that December case some preliminary pointers are made.
Preliminary pointers
- Before 2022 one did not need a licence to operate a short-term let. The requirement was introduced by The Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022.
- There is useful guidance about short-term lets on the Glasgow City Council website here Short Term Let Licence – Glasgow City Council and here City of Glasgow Licensing & Regulatory Committee – Short Term Lets Policy and no doubt similar such guidance is available on other Council websites.
- Although, before 2022, one did not need a licence to operate a short-term let one might well have had to get planning permission to do so if its operation involved “a material change of use” and that remains the case.
- And now a local authority has power to introduce “Short Term Let Control Areas” (under The Town and Country Planning (Short-term Let Control Areas) (Scotland) Regulations 2021) under which any change of use for a premises – whether it was a “material” change or not – needs not only a short-term let licence but also planning permission.
- So far there are no Short-term Let Control Areas in place in Glasgow. But there are in Edinburgh. The December court case to which we now turn concerned property in Edinburgh where the local authority had designated the whole of Edinburgh as a short-term let control area with effect from 5 September 2022.
The December case: Muirhead v City of Edinburgh Council ([2023] CSOH 86) (“Muirhead”)
- If a planning authority decides to designate an area as a short-term let control area then 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”.
- That is so even if, in fact, there is no “material change of use”. In other words, “deemed” in the legislation functions so as to assume that the short-term let does involve a material change of use (whether it does or not) so that planning permission is required in all such cases.
- The main point at issue in Muirhead was whether this provision was retrospective. In other words, whether short-term lets in operation before the legislation came into effect were also caught so that pre-existing short-term lets pre-dating the new legislation were also to be deemed to require planning permission.
- The court held that this deemed material change does not apply where a change of use to a short-term let had already occurred before designation of the short-term let control area. If that had been the intention then the legislation would have made that clear in express terms.
- So, the requirement for planning permission therefore depends on whether the short term let use pre-dates the time when the planning authority (in effect the local authority) designates an area as a short-term let control area. In short:
(1) Before such designation planning permission is required if there was or is a material change of use.
(2) And after such designation planning permission is required because there is a deemed material change of use in terms of the legislation.
What counts as a “material” change of use
- As the judge noted in Muirhead:
“Prior to the enactment of [the new legislation] there was little regulation of short-term letting in Scotland. There was no requirement to obtain a licence, and the use of a dwellinghouse for short-term lets did not of itself require planning permission, unless it involved a material change of use of the property. Whether the use of a dwellinghouse for short-term letting does amount to a material change of use is a question of fact and degree depending on the individual circumstances of the accommodation.”
- As regards Glasgow’s (current) Planning Policy (where, as yet, no short-term let control areas have been designated) some guidance City of Glasgow Licensing & Regulatory Committee – Short Term Lets Policy is given as to what constitutes “material change of use” including:
“The occasional use of a Flat as short-stay accommodation, which is otherwise a sole or main residence, is unlikely to constitute a material change of use. Planning permission is deemed not to be required where only one lodger is accommodated in addition to one resident family. Where a Flat is being used frequently to provide short stay accommodation there is likely to be a material change of use.”
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Murtaza Rasul: email murtaza@mitchells-roberton.co.uk