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 has provided an expert legal opinion regarding the interpretation and application of laws governing short-term lets in Scotland, specifically in response to advice given in a letter from Burness Paull to Fiona Campbell, Chief Executive of the Association of Scotland’s Self-Caterers.
We hope this 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. We also hope this opinion will simplify the licence determination process, allowing for the prompt issue of a licence for applicants where all other conditions are met.
The opinion reviews relevant sections of the Civic Government (Scotland) Act 1982 as amended by the Licensing of Short-Term Lets Order 2022. It clarifies that a licensing authority has the power to intervene if short-term lets constitute a breach of planning control, provided that there is a definitive determination of such a breach.
Importantly, there is no onus for applicants of short-term let licenses to prove their compliance with planning laws during the application process. The burden to determine if a planning permission breach exists lies with the licensing authority, not the applicant. Therefore a request for a certificate of lawfulness or planning permission based on information contained within a licence application alone would be unlawful. The only exception to this would be within a control area where the applicant’s use has commenced after the date of control area designation.
The opinion also addresses the mandatory conditions (specifically Condition 13 of Schedule 3) of the Licensing Order. This condition applies only if it has been definitively established that planning permission is required. However, it does not place an onus on an applicant to demonstrate what the planning position is when making a relevant application.
The opinion emphasises the need for rational and evidence-based decision-making by licensing authorities and confirms that there is no statutory burden on applicants to prove planning compliance at the time of applying for a short-term let licence. This clarification supports the rights of applicants and underscores the responsibilities of licensing authorities in the regulatory process.