Use Class 9 Under Strain: Glasgow Refuses a CLEUD, and Why That Matters Everywhere

The question of whether the Use Classes Order's Class 9 (UC9) applies to short-term let use of a house has been quietly contentious for the better part of two years. For most of that period, the position adopted by a number of Scottish Local Planning Authorities has been the one we have advocated and acted upon for clients: that a house used as a short-term let, where occupancy falls within the categories described at UC9 a)i) or a)ii), does not amount to "development" and therefore does not require planning permission.

Several authorities, including East Lothian, Glasgow City Council (until recently), and others, have taken that position consistently enough that operators in those areas have been able to obtain short-term let licences without addressing their planning status separately. The result, in practice, has been a generation of operators holding valid licences but without any formal determination that their use is planning-lawful.

I have spent the last several years advising every operator we work with that, regardless of whether their LPA currently appears comfortable with their position, a Certificate of Lawfulness for Existing Use or Development (CLEUD) should be sought. The point of a CLEUD is precisely to lock in lawful status when it is achievable, so that a subsequent change in LPA policy or interpretation does not leave you exposed.

That advice has now been vindicated in the most concrete way possible.

The Glasgow change

Over the last several months the Directorate for Planning and Environmental Appeals (DPEA) has been issuing decisions on STL CLEUD appeals that adopt an increasingly restrictive view of UC9. The reasoning in those decisions, in our analysis, is incorrect as a matter of law (see our earlier piece A Class 9 Conundrum?), but it has nonetheless provided cover for any LPA minded to take a similar line.

In Glasgow specifically, we are aware of three recent CLEUD decisions concerning the use of houses as short-term lets. In two of them, granted some months ago, the planning authority accepted that the described use fell within UC9 and that no planning permission was therefore needed. In the third, issued in the last few days, the Council has refused.

The refusal rests, in part, on a misreading of the law around "described use" versus "potential use". But more significantly, the Council now appears to consider that UC9 a)i) is available to STL use (i.e. where the property is let to "a single person or by people living together as a family"), while treating UC9 a)ii) (occupancy by up to five "residents living together") as inapplicable.

This is, in our view, irrational. A planning authority cannot lawfully choose to apply one limb of a statutory instrument while disapplying another. The Use Classes Order is the statutory framework; its provisions either engage or they do not. Selective reading of the statute is not a permissible interpretive move.

But knowing that the position is wrong, and persuading the appellate body to say so, are different things. Appeals from Glasgow CLEUD refusals go to the DPEA. Given the line the DPEA has taken in recent decisions, an appeal in this case is more likely to result in the Reporter disapplying UC9 entirely than in the authority being corrected.

The position is now grave for Glasgow operators who hold a licence but have not yet secured a CLEUD. On the current trajectory, it appears that Glasgow will only accept short-term let use of a house where the property is rented as an entire unit and where occupancy is limited to "families", however that comes to be defined.

Why this matters everywhere else

The reason this matters well beyond Glasgow is that authorities tend to follow each other. We are already seeing indications that other LPAs (West Lothian is one) may be moving in a similar direction. The tacit or informal reassurances some operators have been given by their council that no planning permission is required for their use have a shelf life. Those positions can and do change, often quickly and often without warning.

Once an authority changes its position, the operators who have not formally established their lawful status are exposed. A retrospective application for planning permission in a hostile environment is materially harder, slower, and more expensive than securing a CLEUD while the LPA is still receptive.

What we are doing

A recent DPEA appeal, which had been driving much of the recent restrictive interpretation of UC9, has been remitted back to the DPEA for redetermination. The assigned Reporter, in our experience, is fair-minded and thorough. We have made detailed written submissions clarifying our argument and putting forward what we believe are all pertinent points supporting the proposition that UC9 is engaged by short-term let use. The decision is presently held pending further advice, which we read as a sign that the matter is being taken seriously by both the Reporter and the Scottish Government's planning officials.

We do not, however, expect the redetermination on its own to resolve the underlying problem. Even a favourable outcome would not bind every LPA or every future Reporter, and considerable legal resources will undoubtedly be deployed on the other side of the argument.

The structural fix is for the Scottish Government to introduce a specific use class for short-term lets. The current arrangement, in which the lawfulness of a short-term let use is being determined not by an unambiguous statutory test but by the shifting interpretation of the wording of an old Use Class, against a backdrop of inconsistent appellate decisions, is bad law and worse policy. It creates uncertainty for operators, unfairness between substantively similar cases in different jurisdictions, and an environment in which honest businesses can find themselves on the wrong side of the line through no fault of their own. In this respect, there are some who hold that the Scottish planning system has a serious "rule of law" problem surrounding short-term letting, which is likely to be just as unhelpful to authorities as it is to operators (or their financial backers). It is hard to see how this situation is in any way compatible with the current stated aims of the Scottish planning system: to streamline planning processes and to position Scotland as the most attractive part of the UK to invest.

We will continue to press that case with the Scottish Government, with the ASSC, and with other industry bodies.

What you should do now

If you operate a short-term let in Scotland from a house, and you have not already obtained a Certificate of Lawfulness:

1. Assume the window in your area is narrower than it looks. The Glasgow refusal shows how quickly a friendly LPA position can shift. Acting before that shift is your best protection. 2. Apply for a CLEUD now, while UC9 is still being applied broadly in your area. A CLEUD granted today is a durable position; it is preserved even if your LPA's interpretation changes tomorrow. 3. Do not rely on tacit or informal LPA reassurances. The fact that your council has historically been comfortable with your position is not the same as a formal determination of lawfulness. Get the formal determination. 4. If you already hold a CLEUD, you are in a much stronger position. Keep the documentation safe and make sure your operating model has not drifted from what was described in the original application.

STL Solutions has handled hundreds of CLEUD applications and is active across all 32 Scottish councils, including in areas where the regulatory environment has subsequently tightened, or may be about to. If you are uncertain about your position, please get in touch.

Book a free 15-minute consultation or start a Certificate of Lawfulness application.

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Ross Armstrong Head of Professional Services, STL Solutions