About
Join
Log in
Back
27/09/2024

Highland Council Revises Short-Term Let Policy After Legal Review

Since the implementation of short term let licensing, the conflation between licensing and planning has caused widespread delays with the licensing process and significant confusion, limiting the effectiveness of the licensing scheme.

To assist with this situation, James Findlay KC provided the ASSC with an expert legal opinion regarding the interpretation and application of laws governing short-term lets in Scotland. This was sent to The Highland Council on 29th August 2024.

Key points of the opinion include:

  1. Licensing authorities can only act if they conclude there would be a breach of planning control, not that there might be.
  2. There is no legal requirement for an applicant to prove the planning status when submitting a licence application, including under mandatory condition 13 of the Order.
  3. Condition 13 applies only if planning permission is required, which is a decision for the licensing authority, not the applicant.
  4. Licensing authorities must make rational, evidence-based decisions, and cannot impose a burden of proof on applicants without legal backing.
  5. The letter overstates the legal requirement on applicants, although in practical terms, applicants may still need to show they have or are seeking planning permission in some cases.

In summary, the advice highlights that the legal onus remains with the licensing authority, not the applicant, although practical considerations may influence outcomes.

Today, we have received the following from The Highland Council:

“We have obtained our own KC’s opinion on this matter. Following consideration of this opinion and that of James Finlay KC; we acknowledge the position detailed in Mr Finlay’s opinion and can confirm that we will review our policy and practices accordingly. 

To confirm; STL licence applications submitted prior to the designation of the STL Control Area date, namely 4 March 2024, will now be processed without us requiring evidence that planning permission has been applied for, is in place or is not required. 

As such, our guidance and website will be updated shortly. We will be contacting applicants whom we requested such evidence from shortly to confirm that we will proceed with their licence application. 

We must, however, point out that any decision to proceed and process a licence application should not be taken as acceptance that an applicant has the correct planning permission in place. Applicants must, therefore, be aware that they may find themselves in breach of a condition of their licence if they do not have the correct planning permission in place. We will be including an informative point on granted licences to this effect and providing sign posting to the planning department, who can advise further on this point.”

Fiona Campbell, CEO of the Association of Scotland’s Self-Caterers, said:

“We welcome the decision of The Highland Council to review and update elements of their short-term let policy following consideration of James Findlay KC’s legal opinion as well as their own legal advice.

This means that short-term let licence applications that were submitted before the commencement of the STL Control Area on 4th March 2024 will be processed without the Council requiring evidence of planning permission.

This development closely follows the third successful legal challenge against Edinburgh Council, with the latest showing their approach to issuing 3-month suspension notices was unlawful. Across the country, legally unsound policies are coming unstuck. It should never has come to this had insights from industry been acted upon.

The Scottish Government’s legislation was flawed from the very outset and remains unfit for purpose. However, the ASSC stands ready to work with both national and local government to iron out the deficiencies and overcome the outstanding challenges.”

 

Read the Senior Council’s Opinion below.

Get the latest from the sector

Stay up to date with our self-catering newsletter

Contact us

membership@assc.co.uk

07379 257749

Follow us

https://www.facebook.com/asscscotlandhttps://twitter.com/asscnewshttps://www.linkedin.com/company/association-of-scotland's-self-caterershttps://www.instagram.com/embracescotland
Terms and Conditions | Privacy Policy