Holiday lets in Edinburgh – has the bubble burst?

Fancy a city break anyone? Who could resist a few days in an iconic European city that also happens to be a UNESCO World Heritage Site?

So, where to stay – one of Edinburgh’s many hotels or perhaps a flat is more appealing? There are lots of options to consider. Interestingly, the concentration of Airbnb’s in Edinburgh is four times greater than in London, Paris or New York, but could three recent enforcement notice appeal decisions (1, 2, 3) point the way towards a clampdown on the operation of Airbnb’s and short term holiday lets in Edinburgh?

The appeals related to three separate properties in the same block located in the heart of the tourist centre and lying in close proximity to Princes Street Gardens and the Castle. All three properties were one bedroom flats, with sofa beds in the living room, thereby allowing occupation by up to 4 adults. In summary, the enforcement notices stated that the flats were being used for short term commercial visitor accommodation, without having obtained planning permission and, accordingly, required the alleged use to cease within two months.

The key here was whether there had been a material change of use from residential flats which had resulted in harm to the amenity of adjoining occupiers. Reference was made in the various submissions to City of Edinburgh Council’s Local Development Plan policy Hou 7 (inappropriate uses in residential areas) and the Council’s non-statutory Guidance for Business. The Guidance provides advice on whether the use of a residential property for short term commercial visitor accommodation requires planning permission and refers to the need for an assessment of (i) the character of the new use and the wider area; (ii) the size of the property; (iii) the pattern of activity associated with the use, including the number of occupants, the period of use, issues of noise, disturbance and parking demand; and (iv) the nature and character of any services provided.

In all three cases, the Scottish Government Reporter refused the appeals having concluded that there had been a material change of use, taking account of the number of arrivals and departures, the likelihood of increased noisy activity late in the evening, increased activity due to cleaning the properties, luggage drop-off in between checking in and out and the increased use of the communal drying area by guests for socialising – all of which would be greater than if the properties were in use by a single household.

Meanwhile, the Green MSP, Andy Wightman, has successfully tabled an amendment to the Planning (Scotland) Bill which would require property owners to obtain planning consent in order to change a main residence into a short-term let property such as an Airbnb. This would only apply to a main residence, rather than second homes and is still to be considered by all MSPs at Stage 3 of the Bill next year.

City of Edinburgh Council believes a licensing regime would be the best way to control short term lets and has asked the Scottish Government to consider introducing this.

So, plenty to consider going forward for owners of holiday lets – maybe book that city break sooner rather than later?

You only get what you ask for – High Court confirms approach to unauthorised building immunity

In R (Waters) v Breckland District Council [2016] EWHC 951 (Admin) the High Court considered whether a planning authority determining an application for a Certificate of Lawfulness in relation to buildings constructed without permission had to consider the lawfulness of their use.  The agricultural operator applied only in respect of the lawfulness of the operational development not the use, and the Council concluded that the four year period for accrued immunity applied under Section 171B(1) TCPA 1990.

high courtThe claimant agreed that the Council should have taken into account that:

  • the erection of a building resulting in a material change of use of land is subject to a ten year – not a four year-time limit; and
  • that buildings which are an integral part of an unauthorised use may be liable to removal even if the buildings themselves become immune.

The High Court dismissed the claim on the basis that the law in relation to certificates distinguishes between operational development and use – applicants may specify both in any application. When dealing with an application for a certificate in respect of operational development only, planning authorities are therefore not under any duty to consider the use associated with them.  She distinguished cases dealing with enforcement against unauthorised changes of use where it is recognised that an enforcement notice may require buildings to be removed where they are an integral part of the unauthorised use (Murfitt v Secretary of State for the Environmental (1980) 40P&CR254).  It was relevant that the application for the certificate was for operational development only (and that the building/structures were not solely for the purpose of the alleged industrial intensified use relating to the wider lawful use of the site).  The claimants’ application to require the authority to issue enforcement proceedings also failed.

The key points are that:

  • Applications to regularise the status of new buildings should cover both operational development and the relevant use.
  • Where use is an issue, the ten year immunity period will generally apply.
  • Achieving a certificate for buildings does not rule out subsequent enforcement against the use itself (but is subject to the application of the principle of fairness and good governance that may preclude subsequent enforcement action, noted in Welwyn Hatfield BC v Secretary of State for Communities & Local Government [2011] UKSC15).