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Scotland: A legal opinion by James Findlay KC has forced City of Edinburgh Council to reverse its policy on issuing three-month suspension notices to short-term let [STL] operators who had applied for a licence and were unable to demonstrate that they had applied for planning permission.
The opinion was sent on behalf of the Association of Scotland’s Self-Caterers [ASSC].
It is the third time that City of Edinburgh Council has had to change its STL policies as a result of a legal challenge from the self-catering community.
Since the implementation of short-term let licensing in Scotland last October, the conflation between licensing and planning has caused widespread delays with the licensing process and significant confusion, limiting the effectiveness of the licensing scheme, according to the ASSC. The association says that this is due to “fundamental deficiencies” in the Scottish government legislation.
The KC’s opinion will assist authorities in clarifying their obligations, making it clear that there is no overriding requirement for a licence to “prove a negative” in relation to planning at the point of application.
The ASSC wants the opinion to simplify the licence determination process, allowing for the prompt issue of a licence for applicants where all other conditions are met.
Importantly, there is now no onus for applicants of short-term let licences to prove their compliance with planning laws during the application process.
Furthermore, it confirms that self-catering businesses do not necessarily require planning permission. The burden to determine if a planning permission breach exists lies with the licensing authority, not the applicant.
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.
Fiona Campbell, chief executive of the ASSC, said: “While we are obviously delighted that City of Edinburgh Council has been pushed to reverse its position on three-month suspensions, we also must look again at why we are here. Despite countless engagements with Scottish government ministers and officials spanning years, the legislation which has been forced on the short term let sector in Scotland is, once again, shown to be not fit for purpose.
“This is now the third successful challenge to the legislation, and we will continue our efforts to make any necessary interventions in Edinburgh and beyond in the best interests of our members,” she added.
In June last year, a licensing scheme for short-term let hosts and property managers proposed by the City of Edinburgh Council was deemed unlawful in a landmark ruling at the Court of Session in Scotland.
