IN a case which could have implications for the Scottish Government’s new rules on short-term lets, the highest civil court in Scotland has backed Scottish Ministers over an appeal against a planning decision.

Michael Cameron, owner of Greenloaning Mansion in the village of West Linton, had appealed against a decision by a reporter appointed by the Scottish Government who upheld a decision by Scottish Borders Council to take enforcement action against him. The council had received numerous complaints about noise from Greenloaning which was popular with hen parties and which was known by locals as the “party house”. The owner has since taken steps to reduce that noise nuisance.

The reporter agreed with the council’s action being based on a material change of use from a residential dwelling to “short-stay commercial visitor accommodation”, for which the necessary planning permission had not been obtained.

Now three judges of the Court of Session sitting as an Appeal Court have refused the appeal which centred on Cameron’s claim that the enforcement action was “time barred” as the council had acted more than 10 years after the change of use.

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Delivering the Appeal Court’s judgement, Lord Malcolm, who was sitting with Lords Brodie and Drummond Young, noted: “In his decision the reporter noted that the property can accommodate up to 30 people in 8 bedrooms. It is being used for the provision of short-stay accommodation, which is a sui generis use not covered by any of the use classes. This amounted to a material change of use, having regard to the subject’s previous role as a dwellinghouse.

“In terms of section 26 of the 1997 Act, this was development which should have been the subject of an appropriate planning consent.”

Lord Malcolm continued: “The reporter’s key finding was ‘that the use of the property for letting between April 2008 and November 9, 2008 was ordinarily incidental to its use as a house’. As at November 9, 2008 the lawful use was as a house, and thus the material change of use occurred less than 10 years before the date of the enforcement notice.”

In a clear reference to the Airbnb issues currently being debated in Edinburgh and elsewhere, Lord Malcolm added: “The issue was whether there had been a breach of planning control through its use for short-stay commercial visitor accommodation of a kind which in recent years has become a relatively frequent phenomenon.”

Lord Malcolm concluded: “The court detects no flaw or legal error in the reporter’s analysis and reasoning as summarised earlier. It is well established that a use which is incidental to a primary use is subsumed into that primary use.

“Furthermore, if such a use intensifies to become the main or only use of the subjects, in general that will amount to a material change of use requiring planning permission.”

Lawyers for Michael Cameron refused to comment on the judgement of grounds of client confidentiality but a legal expert told The National: “This judgement gives teeth to the Scottish Government’s plans to let the council crack down on short-term lets, especially if a house becomes effectively a business.”

Housing Minister Kevin Stewart recently announced measures in the Scottish Parliament to provide local authorities with the ability to implement a licensing scheme for every type of short-term let from spring 2021.

He said at the time: “We are empowering local authorities to implement a system that works for their area. By giving councils the power to set conditions around short-term lets licences and put in place planning control areas to tackle hot spots, communities across Scotland will be able to decide what is best for them and their local economy.”