It is a given of any modern conception of the Rule of Law that law must be knowable if it is to be enforceable.

 

Currently, however, the question of whether the Town and Country Planning (Use Classes) (Scotland) Order 1997 (a cornerstone of Scottish Planning Law) is material to the determination of certain Certificate of Lawfulness applications appears unclear.

The issue I write of is that of the treatment of houses put to short-term residential use.

In short, where a house is used as short-stay residential accommodation, it is not necessarily clear whether the Appeal Authority (the DPEA) holds the UCO as material to assessment of potential lawfulness.  (It is also not clear if any given authority holds the correct conception of the terms of the UCO- for more on this, please see other insights.)

By way of a reminder, a use is lawful (in planning terms) if it does not constitute “development” (represented by a material change in the use of buildings or land).  Simply put, where there is no development, there is no invocation of Part 3 of the 1997 Act (“Control Over Development”) and no need to obtain planning permission.  

Furthermore, the Use Classes Order sets out circumstances where certain uses of given properties will (definitively) not constitute development.  These uses are those variously listed by Schedule 1 of the Order, which holds (where houses are concerned) that lawful use extends to;

Use–

• as a house, other than a flat, whether or not as a sole or main residence, by–

• a single person or by people living together as a family, or

• not more than 5 residents living together, including a household where care is provided for residents;

• as a bed and breakfast establishment or guesthouse, where at any one time not more than 2 bedrooms are, or in the case of premises having less than 4 bedrooms 1 bedroom is, used for that purpose.

Caselaw in this area is informative, and it is unclear why these provisions would not extend to short-term let use (i.e., “use whether or not as a sole or main residence”), so long as the property can be properly described as a house, and the assessed occupancy is “residential” in nature (“party venue”, “pop-up bar” or other “commercial use” notwithstanding, for example).  

Indeed, most local authorities confirm in their written guidance that STL use of a house will not (so long as in accordance with that authority’s understanding of the Use Class Order) require planning permission, with such use covered under the UCO.  (Operators in such areas are strongly encouraged to speak with a planning consultant and frame a Certificate of Lawfulness Application in early course. STL Solutions can assist in advising any given authority’s view on the matter.)

Historically, it has appeared that the DPEA has been similarly minded; having previously assessed variously described STL uses against the provisions of the UCO, before passing judgment accordingly whenever a Sec 150/1 application was made related to a house in STL use.

For example, see appeal case 20 Pirniefield Grove, Edinburgh (CLUD-230-2003), where it was noted that the applicable legal precedents do not suggest that frequent changes of occupation necessarily result in a material change of use of a house.  Other previous decisions, such as 103 Restalrig Road (CLUD-230-2006) and 18 Spring Gardens (ENA-230-2217), are also variously informative.

In both Pirniefield and Restalrig, the UCO is referred to (and quoted, specifically) within the reasoning sections of the decision notices, appearing to confirm the applicability of both the spirit and wording of the UCO (as further reflected in case law) to these matters.

Indeed, more recent appeals decisions, issued by DPEA Reporters in 2025, continue to note the definitive applicability of the UCO to short-term letting, recording such in unambiguous terms when confirming the lawfulness of various short-term letting uses. 

For a long time, therefore, the matter has appeared settled.  On this basis, STL Solutions has been successful in obtaining Certificates of Lawfulness on behalf of clients.

Yet, several cases where STL use of houses has complied (on the face of it) with the provisions of the UCO have nevertheless been assessed as not lawful, with no mention of the UCO being made during the relevant Reporters’ deliberations (or noted methodologies) when arriving at their findings.  

Such decisions include ENA-230-2327 and CLUD-230-2044, both related to the use of a house (by up to 4 individuals) on a short-term residential basis. 

In neither decision was the UCO referred to in the formal judgment, and in both instances lawfulness of the use (despite seeming to accord with the UCO) was denied.  These determinations combined to compel the cessation of the use (in the face of a Planning Enforcement Notice), resulting in the destruction of an established business that had hitherto supported the livelihood of a female operator who had already worked hard (and spent significant sums) to obtain an STL Licence from the same council that subsequently sought to force discontinuation of the use on planning grounds.

Given what is therefore at stake (even in purely planning and usage terms), such inconsistencies are confusing, potentially disastrous for operators, and risk undermining the validity of all such Sec. 150/1 decisions. 

Moreover, there are circumstances where the planning status of a property has ramifications in licensing terms (which may or may not lead to potential criminal action thereafter).  This underpins our view that, in the absence of a new Use Class being introduced by the Scottish Government, the DPEA must at least adopt a uniform view, from which operators, investors, lenders and (presumably) local planning authorities can take a consistent lead.  

Let us not forget that, when it comes to planning, stated reasons for decisions must (as a matter of law) be intelligible and adequate; allowing the reader to ascertain how any pertinent matter of law or fact was resolved.  (South Bucks DC v Porter [2004] UKHL 33)

A system which allows some decisions to refer to (and reflect on) important and universally applicable legislation in decision-making methodologies, whilst other decisions (related to applications of exactly the same stripe) do not, does not appear to meet this test.  In this context, all decisions (whether in favour of or against an application) may be at potential risk of further appeal.

Of some comfort is that, at least at present, the STL use of a house for short-term residential purposes can be construed as lawful (at least where the use is by families, individuals and groups of up to 5, and likely in many other cases also).  If cogent arguments and directions can be issued on application, authorities can be moved to issue Certificates of Lawfulness.

However, it appears that, given the confusion above, careful and well-drafted arguments will be necessary if success is to be had (and any potential appeals well-founded). 

It also seems likely that, if inconsistencies regarding the manner of determination persist, these matters will soon find their way before the Lords Ordinary via statutory appeal, with any following judgment certain to have seismic repercussions for operators (and for planning and licensing regimes) all across Scotland.

STL Solutions offers a range of Planning Services (and Appeals and Enforcement Services) for operators seeking to demonstrate that the use of their house is lawful, capable of being licensed for, and immune from planning enforcement action, whether such use meets the exact requirement of the UCO, or not.  

There are also other circumstances where a given use might be deemed as lawful, which are not relevant to this article, and hence have not been addressed here.

As can be seen above, the matter of whether a house might require the benefit of Planning Permission when put to self-catering use appears contentious and may benefit from detailed and nuanced arguments.  We would therefore always recommend consulting with an experienced advisor or engaging the services of a professional planning agent or solicitor before framing or making applications in this area. 

About the Author

 Ross Armstrong LLB (Hons), MA

Head of Professional Services.

 

 

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