Introduction
In short, not all short-term letting uses require planning permission. In fact, a great many don’t.
A Certificate of Lawfulness demonstrates that an existing (or proposed) use of a property (such as for short-term letting) is already lawful.
Obtaining a Certificate of Lawfulness demonstrates that Planning Permission is not required for an existing or proposed use. It demonstrates that the use is immune from Planning Enforcement Action, makes obtaining and maintaining a licence easier, and demonstrates that certain licensing conditions will not apply in the case of the use. It provides surety of operation for existing owners as well as for potential purchasers or investors.
Therefore, for those who are able to, there is a significant benefit to obtaining such a Certificate.
Certificates of Lawfulness fall into two categories, based on one of two arguments in any given case:-
The law in this area is often contentious, in both its content and its application, and the process of application can be technical. Resulting interactions with local and appeal authorities can be challenging.
We therefore recommend that professional advice be sought before an operator commits time and money to any application.
The FAQs below aim to address the most common questions, but there is no substitute for discussing your circumstances with an experienced planning consultant or solicitor.
Yes. Whilst some Certificates of Lawfulness are issued on the basis that the use in question is a breach of planning control persisting for more than 10 years (which means that use becomes lawful), some STL uses do not require planning permission at all.
In such cases, it is possible to obtain a Certificate of Lawfulness to show that even a new (or as yet contemplated) STL use is (or would be) lawful. 10 years of use is not required in these cases.
The question in such cases is instead whether or not the described use is what is known, in planning law, as a “material change of use.”
There are various considerations which must be addressed when determining this, and different local authorities have different methodologies and interpretations of the law.
Determinations are highly subjective in nature, based on officers’ views of the law and whether the described use is likely to impact neighbouring amenity. Other factors can sometimes apply. Making persuasive arguments that address material planning considerations is therefore vitally important.
It is also strongly recommended that Certificates of Lawfulness be obtained wherever currently possible, protecting operators from changes in policy or legal understanding that may take place in their local authority area in the coming months.
Edinburgh is a cautionary tale in this respect, where many operators who could potentially have obtained a Certificate of Lawfulness based on the council’s historic policies, understanding and practice, now find that the opportunity has been removed in the face of growing political contention (principally associated with the confirmation of the Short-Term Let Control Area- STLCA).
STLCAs do not have retrospective effect. Therefore, for those whose properties were operating before the confirmation (and who are able to evidence this), there will be no legal effect on the ability to procure a Certificate following the subsequent confirmation of any STLCA.
“10-year” operators will be particularly unaffected, and those seeking to “regularise” the use via the “no material change of use” route will not be in any worse a position legally.
However, our experience is that the confirmation of an STLCA has a pronounced political effect, making success more difficult to achieve, particularly for those proceeding on the basis of “no material change of use”. This is because the determination of these applications is more subjective, allowing authorities greater discretion.
Many authorities have recently sought to “tighten up” on granting Certificates of Lawfulness (owing to political pressures), and our advice is to deal with “lawfulness” before the matter becomes contentious in any particular area.
Those seeking to prove “no material change of use” are particularly advised to address matters proactively, before any STLCA (or other matter capable of informing political policy- such as the declaration of a “housing emergency”) comes about or is seriously considered by councillors.
Sadly, yes. As set out above, the confirmation of the Edinburgh STLCA is thought to have significantly changed the council’s subjective attitude towards “no material change of use” Certificate of Lawfulness applications. Uses that would have earlier been considered lawful are now held to be unlawful, requiring planning permission.
Similarly, in West Lothian, the declaration of a housing emergency appears to have had a significant effect on determinations. For example, prior to the declaration, the authority’s Short-Term Let Licensing Policy stated that the use of a house for short-term letting did not require planning permission. On that basis, Certificates of Lawfulness were achievable. Post ‘declaration’, the licensing policy has been amended, and Certificate of Lawfulness applications involving the use of houses as Short-Term Lets are being refused.
Yes. Where houses are concerned, many local authorities consider (correctly in our view) that Short-Term Lettings use is (as a matter of law) a form of use that accords with those properties’ existing Use Class (Class 9- Houses). However, the law in this area is not settled, and the matter is likely to shortly be determined by reference to the Court of Session on Judicial Review.
If the Court holds that STL use is not capable of being construed as “Class 9 Use”, it is likely that those areas currently issuing Certificates of Lawfulness to houses will reverse their position, closing off the current avenue to obtain a certificate.
No. The effect of a Certificate of Lawfulness is that the use in question is “conclusively presumed” to be lawful thereafter. A change in local authority policy, practice or understanding cannot override this.
Generally speaking, a Certificate of Lawfulness can be relied upon in perpetuity after being issued. However, a Certificate of Lawfulness only “protects” the use described by the application that led to the Certificate being issued, and the wording of the Certificate itself.
It is therefore very important to frame applications in the most useful fashion, avoiding ambiguity whilst still ensuring that the resulting Certificate is not too narrowly constructed to be generally useful in future.
Yes. Holding a Certificate of Lawfulness can be a powerful tool in demonstrating to licensing authorities that the use of the property in question for short-term letting is (or would be) lawful (and potentially undisruptive).
For example, a Certificate would be sufficient to prevent the licensing authority from “refusing to consider” a subsequent licensing application on planning grounds. It would also comply with the requirements of any previous “refusal to consider” notice received and would give any operator comfort that Mandatory Condition 13 of any licence held could never apply to them (meaning Planning Permission applications would not be required, even if a Control Area was later confirmed).
In some areas, holding a “no material change of use” Certificate of Lawfulness will make it easier to obtain (or maintain) a licence. This is because certain “amenity-related” issues (that are also material to the licensing system) would already have been assessed, reducing the authority’s ability to refuse to issue (or renew) a licence on ‘amenity’ or ‘nuisance’ grounds.
For example, in Highland, the Short-Term Let Licensing Policy specifically notes that the licensing authority will give special consideration to questions of amenity when determining a licensing application. Other areas have similar policies, and statutory grounds for licensing refusal do exist where it is considered that the use would result in, for example, public nuisance.
A “no material change of use” Certificate of Lawfulness would be a powerful indicator that the STL use of that property was not ‘out of character’ or ‘likely to impact amenity’.
Yes, and yes. The application types are not mutually exclusive. As noted, a Certificate of Lawfulness aims to show that Planning Permission is not required, but there is nothing to prevent an application for Planning Permission following on from a Certificate of Lawfulness application, or vice versa.
There will also be circumstances where a Certificate of Lawfulness could be applied for in the face of an earlier Certificate of Lawfulness application having been refused.
The exact wording of any previous decision documents could inform arguments and strategies when making any subsequent application, so it is best to discuss these with an experienced consultant before proceeding with any “follow-up.”
Obtaining a licence does not remove the potential need for planning permission. The planning and licensing systems are separate but contain many considerations in common (particularly where STLCAs are confirmed or contemplated).
Whilst there is no prima facie onus on any licensee to demonstrate their planning status, a licence will not protect you from potential planning enforcement at a later point in time.
The licensing scheme has made STL uses across Scotland more visible than ever. This visibility extends both to local planning departments and to members of the public who may be interested in raising planning-related complaints.
Furthermore, in some cases (i.e. inside an STLCA), addressing the planning status of a property might be required, in order to comply with Mandatory Condition 13. Taking steps to ascertain if the Condition applies to you could be a powerful “due diligence” defence against any claims of non-compliance (being a criminal offence under Section 7(2) of the Civic Government (Scotland) Act 1982, preventing a potential “strict liability” offence occurring.
For most, however, the benefit of applying for a Certificate of Lawfulness will be the ability to procure a lasting record that the use of their property for Short-Term letting is lawful.
As set out above, our greatest fear is that there will be those for whom a Certificate is currently obtainable, but who might miss the opportunity in the face of future changes in policy, practice or legal understanding on the part of their local authority.
This phenomenon has already played out to varying degrees in Edinburgh and West Lothian, and we believe several other local authorities may follow suit once they have “granted enough” Certificates (or “issued enough” licences).
Every property’s individual character and usage history will be different. Speaking with a consultant is the best way to ascertain the most appropriate planning strategy in any given case.
However, there are some uses which could never obtain a Certificate. These are limited to uses in a control area, where the use started after the area in question has been confirmed. This is because, under those circumstances, a deemed requirement for Planning Permission applies.
In all other cases, the matter may be competently tested, with the outcome resting on those arguments deployed addressing the character of the property and use (whether existing or proposed).
Different consultancies and solicitors operate different fee arrangements. STL Solutions has maintained our current fee amount at 2023 levels. A Certificate of Lawfulness application (whether “no material change of use” or under the “10 year rule” is £1150+VAT, to reflect the staff time required to construct competent arguments, oversee the application and liaise with the planning authorities during the determination of the application and any required appeal.
There is also a planning fee due to the local authority. The current fee level is £714 per 100m2 of floor area of the property in question. This is proposed to rise slightly in April of 2026. “Proposed” use Certificate of Lawfulness applications qualify for a 50% fee reduction in respect of local authority fees, and there may be certain circumstances where a 100% fee discount can be applied.
A consultant will be able to ascertain your exact expected planning fee ahead of application.
Author of guidance: Ross Armstrong, STL Solutions, contact@stlsolutions.co.uk
Date of guidance: 23rd March 2026
Version Number: V1