FOI reference: FOI/18/00687
Date received: 28 February 2018
Date responded: 28 March 2018
1. Does the Planning and Environmental Appeals Division consider recent case law on the unlawfulness of AirBnB-style short-term letting (even when restricted to 90 days) in shared/flatted properties, when considering neighbour amenity in relation to planning appeals on SSCVAs?
2. If so, can you provide details of the appeals decisions where these cases have been referred to.
As the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.
This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.
The answer to your first question is that reporters are required to consider cases in accordance with section 25 of the Town and Country Planning (Scotland) Act 1997. This means that each appeal is considered solely on the merits and facts as they relate to the proposal. The reporter is required to consider the appeal before him/her in accordance with the development plan for that area unless material considerations indicated otherwise. Those material considerations cover a wide range including Scottish Planning Policy, National Planning Framework, a proposed strategic or local development plan as well as community concern or support expressed on relevant planning matters.
With regard to your second question, there are no planning appeals where this issue has been raised but you may be interested in 5 appeals (three enforcement notice and two certificate of lawful use appeals) where issues of this type have been raised. The details of those cases are as follows:
Our ref: ENA-230-127, Royal Circus, Edinburgh, EH3 6TL – appeal allowed, planning permission granted
Our ref: ENA-230-127-1,1 Royal Circus, Edinburgh, EH3 6TL – the decision above was appealed to the Court of Session and then returned to this office for redetermination, the appeal was later withdrawn.
Our ref: ENA-230-2107, 2 Eyre Place (Apartment 5) Edinburgh, EH3 5EP – appeal dismissed, the enforcement notice was upheld, and planning permission was not granted.
Our ref: CLUD-230-2003 – 20 Pirniefield Grove, Edinburgh, EH6 7QB – appeal allowed, a certificate of proposed lawful use was granted.
Our ref: CLUD-230-2004 – Flat 1, 1 South Gyle Mains, Edinburgh, EH12 9HS – appeal still ongoing.
Information relating to the above appeals is available from our website www.dpea.scotland.gov.uk Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
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