Edinburgh Council loses a second STL Judicial Review….
We are DELIGHTED to let you know that Lord Braid published his decision in the Judicial Review which Iain Muirhead and I, Louise Dickins of Dickins Edinburgh Ltd, brought against Edinburgh Council’s STL planning Guidance for Business and we WON. Or should that be we won JR2 too. What a lovely tongue twister that is!
JR1 against Edinburgh’s Licence policy was the icing, but JR2 against its planning policy is the cake.
Edinburgh Council’s policy found to be unlawful, unfair and illogical
The impact on the whole of Scotland’s self catering sector is huge following Lord Braid’s judgement. If we had lost, then it would have, in effect, meant that a quasi planning control area would have existed for all self catering in Scotland because if a Local Authority wanted to introduce a Planning Control Area, like the one Edinburgh has had since 5th September 2022, they could have made it retrospective. That’s what Edinburgh Council had done with their policy and why we needed to challenge it in the Court of Session. Their Guidance for Business was at odds with Scottish Government Guidance. Lord Braid found that Edinburgh’s policy was unlawful, illogical and unfair and that it will need to be changed. He examined the decision making process of the Scottish Government and found that there was never an intention for Planning Control Areas to be retrospective. This was so emphatic that there would be no point in Edinburgh Council appealing Lord Braid’s decision.
Edinburgh Council’s application process discouraged existing users….
Edinburgh Council had also designed an application process which actively discouraged existing users from applying for a licence. We were forced to say that we had made an application for planning permission or a certificate of lawfulness or had permission already. We were not able to say that we didn’t need either because we were existing users and there had never been a material change of use. There are definitely potential repercussions for the 1,800 existing secondary let applications now lodged with the council. Did they need to make a planning application at all? And anyone whose planning application has already been rejected may have renewed cause for hope today.
We are VERY grateful to Alastair Sutherland at Burness Paull and James Findlay KC for their excellent work in helping to achieve achieve this significant victory.
“This is an important decision for short term let operators, and not just in Edinburgh. It will inform the way in which local authorities control the use of short term lets across the whole of Scotland. Lord Braid is clear in his judgment that the City of Edinburgh Council pursued an approach that was unfair, illogical and completely at odds with Government guidance. He also found that the Council’s application process actively discouraged existing users from applying for a licence and that it must now change its approach.” Alastair Sutherland, Burness Paull.
Why didn’t the Scottish Government and Edinburgh Council sort this out themselves?
It does seem ridiculous that Iain and I needed to bring this legal action to resolve what was in essence, a fight between the Scottish Government and the City of Edinburgh Council. But we did. Now that we’ve won, I am relieved that we had enough faith and courage in our convictions to risk asking the Court of Session to decide the matter on behalf of our sector. This was a matter which would always have needed to be resolved. Who knows how long that would have taken if left in the hands of Edinburgh Council and the Scottish Government? Too long!
Both Edinburgh Council’s STL licence and planning policies have been found to be unlawful this year. I hope that this gives them reason to pause and reflect with a sense of humility. They have wasted so much time and risked so much resident’s council tax money by creating unlawful policy, seeking to defend it and then losing. Policy making based on the politics of agenda has not served them well. At the end of the hearing, I said to the Head of Planning for Edinburgh Council, David Givan, that instead of meeting in court rooms, we should be meeting around a table. He appeared to agree. Let’s hope that now comes to fruition. We are, and always have been, interested in getting around a table to find common ground and workable solutions for our sector and Edinburgh.
It turns out that 12,000 Airbnbs in Edinburgh was fiction and not fact….
I called out Edinburgh Council’s assertion that there were 12,000 Airbnbs in the city in a much referenced blog, 12,000 Airbnb’s in Edinburgh – Fact or Fiction? My breakdown was pretty accurate it turns out. My calculations indicated that there were 1,781 entire homes being used for self catering professionally in the city and there have been 1,800 licence applications. Now is the time to move away from fiction and firmly into the realms of fact. We have shown that we do indeed know and understand our market, so please start listening to us.
Scottish Government should review this seriously flawed policy.
You would also hope that the Scottish Government recognise the need to review this seriously flawed policy. When the first two cases which have been brought against Local Authority policies have won, it’s a moment to recognise there are serious issues. The postcode lottery nature of the scheme they created has made an uneven playing field of Scotland which is unfair and illogical too, And then there are the huge numbers who have not applied for licences across the country and the impact that is going to have on Scotland’s economy. Scottish Ministers, Paul McLennan, Neil Gray and Richard Lochhead need to acknowledge that this is not going well.
For me, today gives me such a sense of relief, a dropping of my shoulders and a deepening of my breath. I can see a way forward for my business. This year has been truly bruising. A year in which I’ve needed to be in survival mode almost constantly. I’m looking to leave the negativity behind me in 2023, looking forward to a bright and positive future. Perfect timing with Christmas and New Year a few week’s away!
I want to extend massive heartfelt thanks to everyone who has supported this huge effort. There are thousands of people who have got behind us, giving us the financial support to allow us to keep going. The JR team of Iain, Ralph, Craig, Glenn and Anna and Fiona, Adrienne and Victoria at the ASSC have been immense. I won’t mention other names in case I forget someone. My team at Dickins – Ewa, Flo and Femi have done pretty much everything, allowing me to concentrate on this 100% and I will always be grateful to them for that. It must have felt frustrating at times. And to my husbamd, Simon and our two boys, THANK YOU. There will be much less time on my laptop for the foreseeable. Thank you for your love and faith in me. When I dropped my eldest son at school this morning, he said ‘Don’t worry Mum, you’ll win.’ And we did.