Thu 06 May 2021

The (short term lets) show must go on

Apartment close to Edinburgh Tattoo can operate as holiday let

As Scotland emerges slowly from lockdown restrictions and looks forward to the possibility of holidays again, the development of cases in the saga of short-term holiday lets continues.

The DPEA has recently ruled in favour of the change of use of an Edinburgh Old Town tenement flat to permit short term business/holiday accommodation. The first-floor apartment (comprising two bedrooms, accessed through a common close) sits a very short distance from Edinburgh castle and is mere steps (albeit very steep steps, typical of Edinburgh's city layout) from popular tourist sites. The flat is within the Old Town Conservation Area, and the Old and New Towns of Edinburgh World Heritage Site. It is also within a listed building.

It therefore sits at the heart of Edinburgh visitor attractions and amongst streets which would ordinarily be bustling with tourists, pedestrians, and (during August) visitors to the Edinburgh Tattoo. The flat has been operated as a short term holiday let since March 2015.

A retrospective application was submitted to change the use of the apartment from residential to short term business/holiday accommodation. It was refused by the City of Edinburgh Council on the basis that the proposed change of use would have an unacceptable impact on residential amenity which would be contrary to Policy Hou 7 (Inappropriate Uses in Residential Areas). The Council considered factors such as the apartment having no direct access from the street, being accessed via a communal entrance and stair, there being direct interaction between the holiday accommodation guests and the residents of the surrounding properties, the possibility that visitors may "come and go" frequently and that they may have less regard for neighbours' amenity than long standing residents. The Council decided that, notwithstanding the relatively busy, central location of the flat, there was the potential to create disturbance from the operation of the short term let.

However, the DPEA considered the matter on appeal and decided to grant planning permission. The Reporter concluded that, in relation to Policy Hou 7 that the proposed change of use would not cause a materially detrimental effect on any residents given the facts and circumstances of the case, and so the proposed use was not contrary to policy. In reaching this decision, the Reporter considered factors such as the antisocial behaviour which may be associated with the use of the property by its users, the frequency of change, the level of disturbance arising from arrivals and departures, and the loss of a sense of community; as well as the particular circumstances of the location.

The Reporter identified that the external location of the apartment was at a (normally) very busy location and accepted the submissions put forward that the residential car parking in the area has been removed to permit coach parking; and that the erection of the Tattoo staging each year causes disturbance. Given the noise and disturbance created by these activities, the Reporter considered that a resident of the flats could reasonably be expected to accommodate themselves to heightened levels of street noise, and so the use of the holiday let flat would be less noticeable to residents than it may be in other locations. The Reporter also took into account the pattern of use of the property, and noted the number of guests, and length of stay, and concluded it was unlikely to be used as a "party flat". After consideration of the facts of the case, the Reporter concluded that the flat was a relatively unproblematic visitor facility and that planning permission for change of use should be granted in this case. Planning permission was granted for a period of three years.

Short-term holiday lets - the legal position

The law in relation to this topic is in the process of reform - a licensing scheme for short-term lets was proposed in January 2020 in terms of the Civic Government Scotland Act 1982, but the Scottish Government advised in February 2021 that this licensing Order would be withdrawn and re-laid before Parliament in June (subject to the election results) in order to provide draft guidance on the licensing scheme within the new Order. If it is passed, local authorities will still have until 1 April 2022 to establish a scheme, and existing hosts will have until 1 April 2023 to apply.

Local authorities will also have powers in terms the Town and Country Planning (Scotland) Act 1997 (as amended) to designate all or parts of its area as a "short-term let control area", which will mean that the use of a house in that area for short-term accommodation will be deemed to involve a change of use (thus planning permission will be required). The Town and Country Planning (Short-term Let Control Areas) (Scotland) Regulations 2021/154 came into force on 1 April 2021 and provide that, before an area may be designated as a short-term let control area, the proposed designation must be approved by the Scottish Ministers and the planning authority has to give notice of the designation in a local newspaper and online.

The current position

Once the licensing scheme for short term lets becomes established; and the power to designate short-term let control areas becomes utilised by local authorities, then more clarity will be available as to whether a property can operate as a short-term holiday let and what is required for it to do so.

In the interim however, the short-term let case discussed above underlines that the facts and circumstances of the operation of the holiday let will be one of the primary factors to be considered in change of use applications; and that on appeal, detailed scrutiny of these facts and circumstances may take place.

If you require advice in relation to the operation of a short-term holiday let, Morton Fraser's planning team will be happy to assist.

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