Category: Legislation
Visitor Levy (Scotland) Act: Statutory Guidance for Local Authorities and What It Means for Self-Catering Operators
Three Successful Legal Challenges Against City of Edinburgh Council
September 2024: Council’s approach to issuing 3 month suspension notices is unlawful
An opinion went on 30th August 2024 to City of Edinburgh Council containing senior counsel, James Finlay KC, opinion that the Council’s approach to issuing 3 month suspension notices is unlawful.
The opinion was sent on behalf of the ASSC, with funding provided by the Save Self Catering Team. STL Solutions were also heavily involved in the strategy and collating information for the legal teams.
In summary the opinion found:
(i) the Council is taking a blanket and arbitrary approach without giving proper consideration to the particular circumstances of each application;
(ii) there is no rational basis upon which the Council could base its decision to suspend consideration of an application based solely from the information in the Licence Application (or elsewhere in the various assessments);
(iii) the Council has unlawfully imposed an onus on applicants to demonstrate they have planning permission or have a lawful use (which may include still effectively operating on the basis short-term let control areas are
retrospective, contrary to Lord Braid’s opinion); and
(iv) the reasons given were defective.
December 2023: Council’s approach to the requirement for planning permission for STLs is unfair and illogical
Lord Braid has found in favour of Iain Muirhead And Dickins Edinburgh Limited’s Judicial Review Petition regarding City of Edinburgh Council’s Short-Term Let Planning Control Area. It is clear that the Council has got their approach to short-term lets badly wrong.
Lord Braid has found that City of Edinburgh Council’s approach to the requirement for planning permission for STLs is unfair and illogical. Lord Braid also found that CEC’s application process actively discourages existing users from applying for a licence. He found that CEC must change its approach in light of his opinion.
The court has declared that S26B (the requirement for all STLs to apply for planning permission within a Planning Control Area) does not apply retrospectively, and so does not affect STL operators where change of use occurred before the designation of the STL area. This will affect STL operators across the whole of Scotland.
CEC’s Guidance for Businesses on the planning requirements for STLs in Edinburgh has been reduced. That means the Council does not have a policy position to inform STL operators and applicants. They will need to amend their policy and guidance.
This will have ramifications for The Highland Council’s proposed Planning Control Area in Badenoch & Strathspey and other proposed Control areas in Perth and Kinross, Fife and elsewhere.
[16]: “It is plain, then, that the Scottish Government’s view is that section 26B does not require planning permission to be applied for, even in a control area, where the change of use took place before the designated date. That view is diametrically opposed to that of the respondent. But which view is correct?” (my emphasis)
[28]: “That is not only unfair, but illogical.”
[31]: “The nail in the coffin of the [Council’s] fairness argument is that its approach would deprive the operators concerned of any right to obtain compensation…”
[34]: “I accept that the possibility of a successful challenge under A1P1…”
[36]: “If the respondent’s view on that changes (as it will need to, in light of this opinion), the respondent will then be obliged to confirm, in each of the petitioners’ scenarios (i) to (iv) that an application for planning permission is not required.”
[37]: “Of course, the petitioners also criticised the wording of the STL application form, to which I have drawn attention in para [8]. I do not agree with the submission made by senior counsel for the respondent that the wording of the application form is designed simply to open a dialogue with applicants for an STL licence as to what the planning permission is, since, as I have pointed out, the form actively discourages anyone from applying who does not have either planning permission (or a CLU) or an application in the pipeline. That does in my view go too far, since it fails to recognise that there will be cases where planning permission is not required.”
Lord Braid has, this morning, found in favour of Iain Muirhead And Dickins Edinburgh Limited’s Judicial Review Petition regarding City of Edinburgh Council’s Short-Term Let Planning Control Area. It is clear that the Council has got their approach to short-term lets badly wrong.
Lord Braid has found that City of Edinburgh Council’s approach to the requirement for planning permission for STLs is unfair and illogical. Lord Braid also found that CEC’s application process actively discourages existing users from applying for a licence. He found that CEC must change its approach in light of his opinion.
The court has declared that S26B (the requirement for all STLs to apply for planning permission within a Planning Control Area) does not apply retrospectively, and so does not affect STL operators where change of use occurred before the designation of the STL area. This will affect STL operators across the whole of Scotland.
CEC’s Guidance for Businesses on the planning requirements for STLs in Edinburgh has been reduced. That means the Council does not have a policy position to inform STL operators and applicants. They will need to amend their policy and guidance.
This will have ramifications for The Highland Council’s proposed Planning Control Area in Badenoch & Strathspey and other proposed Control areas in Perth and Kinross, Fife and elsewhere.
[16]: “It is plain, then, that the Scottish Government’s view is that section 26B does not require planning permission to be applied for, even in a control area, where the change of use took place before the designated date. That view is diametrically opposed to that of the respondent. But which view is correct?” (my emphasis)
[28]: “That is not only unfair, but illogical.”
[31]: “The nail in the coffin of the [Council’s] fairness argument is that its approach would deprive the operators concerned of any right to obtain compensation…”
[34]: “I accept that the possibility of a successful challenge under A1P1…”
[36]: “If the respondent’s view on that changes (as it will need to, in light of this opinion), the respondent will then be obliged to confirm, in each of the petitioners’ scenarios (i) to (iv) that an application for planning permission is not required.”
[37]: “Of course, the petitioners also criticised the wording of the STL application form, to which I have drawn attention in para [8]. I do not agree with the submission made by senior counsel for the respondent that the wording of the application form is designed simply to open a dialogue with applicants for an STL licence as to what the planning permission is, since, as I have pointed out, the form actively discourages anyone from applying who does not have either planning permission (or a CLU) or an application in the pipeline. That does in my view go too far, since it fails to recognise that there will be cases where planning permission is not required.”
June 2023: Council’s short-term let licensing policy is unlawful regarding their rebuttable presumption against granting a licence, amongst other matters
The Court of Session found that City of Edinburgh’s short-term let licensing policy is unlawful regarding their rebuttable presumption against granting a licence, amongst other matters.
The action was brought by four petitioners, all members of the ASSC – Ralph Averbuch, Glenn Ford, Louise Brook and Craig Douglas – with Iain Muirhead and Anna Morris providing close support. These individuals bore huge personal costs, financial and emotional, and have shown tenacity and perseverance throughout.
In addition, upwards of 1,000 people donated more than £300,000 to the largest Crowdfunder in Scottish legal history, illustrating just how important this action was to the entire sector. The ASSC also expresses thanks to Morag Ross KC and her team, and Rosie Walker and Joanna Millar at Gilson Gray LLP.
The ASSC has long maintained that the Council’s policy amounted to a de-facto ban on short-term lets in Edinburgh and would damage a key component part of the city’s economy for no discernible benefit.
Aside from his verdict on rebuttable presumption, Lord Braid also found the Council’s policy was unlawful in respect of the lack of provision for temporary licenses, as well as the stipulation about floor coverings for all secondary lets. Significantly, Edinburgh’s policy also breaches the Provision of Services Regulations 2009.
This decision should not be viewed as a matter for City of Edinburgh Council alone as it clearly has wider implications for the Scottish Government’s short-term let regulations and seriously calls into question whether licensing can survive in its current form. The ASSC intend to request an urgent meeting with the Scottish Government to discuss the consequences of today’s developments.