Legal challenge to short-term lets regulation

22 August, 2018 - 17:26

This week the Association of Scotland’s Self-Caterers (ASSC) launched Phase 3 of a crowdfunding campaign to fund litigation against the City of Edinburgh Council and Scottish Ministers in the Court of Session. The case follows an enforcement notice served by the council on the owner of 3F1, 14 Chancelot Terrace for an unapproved change of use from a flat to a short-term let. The owner appealed to Scottish Ministers who upheld the Council’s decision and the decisions of both the Council and Scottish Ministers are now being challenged in the courts.

Having already gained nearly £19,000 in pledges, at the time of writing, the ASSC hope to raise £130,000 in the next couple of weeks to fund legal action, and according to an article in the press today, they will contribute £112,000 to the appeal.

The case documents are available on the Scottish Government’s Planning and Environmental Appeals Division website.

The appellant (the property owner), Nicola Golden, who lives in the United States and having purchased the flat in 1996, she began to let it out long-term from 1999 to 2017 before operating as a short-term let. In the last year she notes that this was let for 36.7% through a property management company.

According to the evidence, Mrs Golden disputes the decision that there has been a material change of use and instead suggests that “it is only the period of time spent in my home that has changed”.

However, the Reporter disagrees citing that the property is managed by a commercial agency for the purposes of short-term letting. The property is also advertised on three websites to attract potential customers including their own website.

The Council issued an enforcement notice based on the evidence that the pattern of use suggested a commercial holiday let enterprise rather than a residential property. This view was backed by the Reporter.

So why is this case significant?

To my knowledge, this is the first test case in court regarding what constitutes a change of use by turning a residential property into a short-term let (or short stay commercial visitor accommodation, as the City of Edinburgh Council terms it).

Through the Homes First campaign, I have long campaigned for tighter legislation to better regulate the short-term lets sector. The ASSC is opposed to any more interventions in the short-term letting market. It appears that this case is a key part of a wider campaign to oppose more effective regulation.

Of course, at this stage, we do not know the legal grounds for the action but they are likely to resolve around the tests and the evidence necessary to demonstrate that a material change of use has taken place. The test currently applied by the Council involves an assessment of the intensity of use of a home in terms of numbers of guests and their frequency.

This is a complicated test as it depends on detailed evidence of use which can only realistically be obtained by diligent monitoring of each property – as task beyond the capacity of planning officials or most local residents.

The stakes are high.

Will the court find that the council and reporter were acting unlawfully in coming to their decision? That is possible and it is in anticipation of the possible weakness of the powers currently being deployed by the Council that I have tabled amendments to the Planning (Scotland) Bill currently before Parliament.

No date has yet been set for a hearing in the Court of Session but this is a very significant case which I and many constituents will be watching very closely.

 

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