A recent planning appeal decision in Scotland (Reference: ENA-230-2164 – 5/6 Castle Wynd South, Edinburgh) is the latest in a line of cases concerning enforcement action taken by local authorities against dwellings being used as short stay visitor accommodation.
Although a Scottish decision, its facts and findings are also of relevance to planning authorities and landlords across England and Wales.
A three-bedroom duplex apartment in central Edinburgh had been used entirely for short stay visitor accommodation for the past 12 months. The access to the property was via a communal stairway and landing. The average occupancy was four adults with an average length of stay of around three nights. The appellant did not dispute that the property was used for short stay visitor accommodation. However, they did occasionally stay in the property when they were not working abroad. There was also no record of any complaints from neighbours.
The appellant sought to argue that even though the property was used for short term holiday lets, it was still essentially a single residential dwelling. It was also asserted that there was nothing to suggest that the behaviour of the temporary occupants of the property would be any different to that of a permanent resident, including when they come and go from the property.
Breach of planning control
The reporter noted that the key issue was whether the use of the property for short stay commercial visitor accommodation represented a material change of use which would require planning permission.
The case of Moore v Secretary of State for Communities and Local Government  EWCA Civ 1202 was cited, which confirmed that as to whether using a dwelling for commercial short-term lettings would amount to a material change of use was to be assessed on its own facts and circumstances.
In the case of Moore, the court identified the following factors as relevant:
- The pattern of arrivals and departures, with associated traffic movements.
- The unlikelihood of occupation by a family or household group.
- The number of people constituting the visiting group on various occasions.
- The likely frequency of party type activities and the potential lack of consideration for neighbours.
In deciding the appeal, the reporter noted that the key issue was the likely disturbance caused by the use. The number of arrivals and departures, with associated traffic movements within a communal stairway and landing was likely to be much greater than that associated with a single permanent resident. For that reason, the reporter determined that in this case there was a material change of use which would require planning permission.
Record numbers of people are taking advantage of cheap and flexible short-term rentals across the United Kingdom, such as those advertised on Airbnb. Edinburgh, for example, has one of the highest concentrations of such rental properties within Europe, with more than 9,000 listed on the website. These properties clearly form an important part of the local economy.
Yet, there has been growing concern by local authorities about the negative impacts of such growth; principally, the loss of permanent housing and the detriment to neighbouring dwellings’ residential amenity. Consequently, the level of enforcement action being taken by planning authorities against Airbnb type rental properties is on the increase.
As noted above, as to whether there has been a material change of use is a matter for the planning authority to determine, considering the facts and circumstances in each case.
However, there have been growing calls for new regulations to clarify what “material change” means in respect of short stay visitor accommodation.
In Greater London, there is already some clarity. Section 44 of the Deregulation Act 2015 introduced a provision meaning that it is unlawful for homes in London to be used as short-term rented accommodation for a cumulative period of more than 90 days a year without seeking planning permission. This has been supported by Airbnb who now automatically limits landlords taking bookings for more than 90 days unless they can evidence that planning permission has been obtained.
The continuing concern about the negative aspects of short-term visitor accommodation is also reflected in the draft London Plan. The current draft notes the 90-day limit introduced by the Deregulation Act and provides for London boroughs to address impacts on local amenity caused by short-term lettings through development plan policies.
Outside Greater London the position is less clear. It remains for individual planning authorities to consider whether the extent and nature of short-term visitor lettings within a property amounts to a material change in use, considering the guidance provided in the case of Moore.
However, change might be on the horizon. Keen to get ahead of the curve, Airbnb has recently revealed its own outline proposals for new planning regulations for the whole United Kingdom. These include requiring planning permission when a home is used as short-term rented accommodation for a cumulative period of more than 140 nights and support for a tourism levy, the proceeds of which could be used to offset any negative impacts to neighbouring residential amenity.
Airbnb has now commenced a six-month UK roadshow to gather feedback from key stakeholders in response to its proposals. It then aims to collate its findings into a detailed report that it will present to the UK government in Spring 2020.
In Scotland, the Housing Minister, Kevin Stewart, has already confirmed the Scottish Government’s intention to introduce a licencing regime in connection with short-term lets.
This may require owners to be authorised to carry out short-term lets under a personal licencing system, as well as having to comply with planning control.
It remains to be seen whether these proposals will lead to a more coherent system of regulation across the country for short term visitor accommodation.