Ministers consider halt to short-term let enforcement amid claims licensing scheme breaches human rights

Aidan O’Neill KC has provided a legal opinion to the Scottish government in which he is unequivocal that the framework for regulating short-term accommodation breaches operators’ rights under the European Convention on Human Rights.

The Association of Scotland’s Self-Caterers (ASSC) has followed this with a formal letter stating that compensation claims are now being prepared for those persons already adversely affected by the introduction and unlawful operation of the STL licensing scheme.

Ministers have replied that they are considering the terms of the letter.

ASSC is pressing for an immediate national moratorium on short-term let licensing and planning enforcement affecting existing operators, a pause that would stop all ongoing enforcement notices requiring people to cease trading.

It said: “We welcome the fact that this issue is now under active ministerial consideration. A moratorium would give the government, industry and other partners the space needed to agree solutions that safeguard responsible businesses, provide clarity for local authorities, and secure a regulatory system that is lawful, workable and proportionate.”

The statutory basis for licensing and planning “control areas” was enacted in 2021, with Edinburgh being the first council to roll out the regime.

Since then, hundreds of operators have received enforcement notices instructing them to remove listings from Airbnb and other platforms, and most retrospective planning applications for change of use have been refused.

In 2023, a group of owners won a Court of Session challenge against Edinburgh’s stance that every operator – including those running a let before the control area was created in September 2022 – had to obtain planning permission before applying for a licence.

A letter sent to the Scottish government, from Burness Paull on behalf of ASSC, states: “With each month that passes, more operators are going out of business, and the public authorities’ liability for just satisfaction damages increases. This will be at a growing cost to the public purse.

“The principal problem with the implementation and operation of the licensing scheme stems from planning judgment having been imported into licensing control due to the licensing requirement not to be in breach of planning control.

“The level of uncertainty about whether a particular use of a particular property is lawful has in many instances resulted in a de facto ban.”