A Class 9 Conundrum?

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

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.

A use is lawful in planning terms if it does not constitute "development" (a material change in use). Where there is no development, there is no need to obtain planning permission.

What Class 9 Says

The Use Classes Order sets out that lawful use of a house 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.

This also covers bed and breakfast establishments where not more than 2 bedrooms (or 1 in smaller premises) are used for that purpose.

Historical Support

Most local authorities confirm in their written guidance that STL use of a house will not require planning permission, provided it accords with the UCO.

The DPEA has historically been similarly minded. In the case of 20 Pirniefield Grove, Edinburgh (CLUD-230-2003), it was noted that applicable legal precedents do not suggest that frequent changes of occupation necessarily result in a material change of use. Similar positions were taken in 103 Restalrig Road (CLUD-230-2006) and 18 Spring Gardens (ENA-230-2217).

In both Pirniefield and Restalrig, the UCO was specifically quoted within the reasoning sections, confirming the applicability of the UCO to these matters.

The Inconsistency

Yet several cases where STL use of houses has complied with the UCO have nevertheless been assessed as not lawful, with no mention of the UCO in the Reporters' deliberations.

These include ENA-230-2327 and CLUD-230-2044, both related to houses used by up to 4 individuals on a short-term residential basis. In neither decision was the UCO referred to, and in both instances lawfulness was denied — resulting in the cessation of established businesses.

Why This Matters

Given what is at stake — the destruction of established businesses and livelihoods — such inconsistency in the application of a fundamental piece of legislation is deeply concerning. STL Solutions continues to advocate for clarity and consistency in this area.

If you operate an STL from a house, we strongly recommend seeking expert advice on your planning position. The law in this area continues to evolve.