Edinburgh withdraws suspensions for short-term let operators with no proof of planning permission

A legal opinion by James Findlay KC has forced the City of Edinburgh Council to reverse its policy on issuing three-month suspension notices to short-term let operators who have applied for a licence and were unable to demonstrate that they had applied for planning permission.

Any suspension notices that were issued to operators have now been withdrawn.

In summary, the opinion found:

1. the council is taking a blanket and arbitrary approach without giving proper consideration to the particular circumstances of each application;
2. 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);
3. 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
4. the reasons given were defective.

The opinion, which was sent on behalf of the Association of Scotland’s Self-Caterers (ASSC), is the third time the council has had to change its STL policies as a result of a legal challenge from the self-catering community.

The ASSC said James Findlay KC’s opinion will assist authorities to clarify their obligations, making it clear there is no overriding requirement for a licence to ‘prove a negative’ in relation to planning at the point of application. The organisation added that it hopes the opinion will simplify the licence determination process, allowing for the prompt issue of a licence for applicants where all other conditions are met.

Fiona Campbell, chief executive of the Association of Scotland’s Self-Caterers, 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.”

Councillor Neil Ross, regulatory convener, said: “We issued suspension notices to allow landlords to make relevant planning applications before their licences were determined. However, following the threat of legal challenge, we have decided to withdraw these.

“All short term let properties within Edinburgh remain subject to the statutory licensing regime and where licences are not in place, or conditions are breached, we’ll take appropriate enforcement action.”