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Peter Ralph Averbuch & Others for Judicial Review of the City of Edinburgh Council Short Term Lets Licensing Policy [2023] CSOH 35

The Court of Session has partially upheld a challenge to the City of Edinburgh Council’s Short-Term Let (STL) Licensing Policy.

Background

Following recent changes in legislation, short-term letting is now an activity which must be licensed by local authorities, in terms of the Civic Government (Scotland) Act 1982.  Edinburgh has also been designated as a short term let control area under section 26B of the Town and Country Planning (Scotland) Act 1997, meaning that the use of tenement accommodation in Edinburgh for secondary[1] short-term letting is deemed to involve a material change of use for which planning permission is required.

The policy, adopted in September 2022, contains a rebuttable presumption against the grant of an STL licence for secondary letting in a tenement or with a shared main door.  Where such a licence is granted, the duration is restricted to one year (in contrast to the three year period for other types of STL licence).  There is no provision for the grant of temporary licences for tenement accommodation, again in contrast to other types of STL.  Finally, the policy is that a standard condition for all secondary lets whether in a tenement or not that the rooms have carpets or other suitable floor covering.

The arguments

The petitioners (who own or manage tenement properties which are used for secondary STL) argued that these aspects of the policy were irrational and oppressive at common law.  The purpose of the licensing regime was to ensure the safety of the property for visitors.  It was also irrational not to allow for temporary licences for tenemental property, and to restrict the duration to one year.

The Council argued that its policy was a rational and proportionate response to the problems posed by short-term letting in Edinburgh, such as noise and other forms of anti-social behaviour.  Well-run businesses could still expect to receive a licence.

Decision

Lord Braid has ruled that the policy is irrational insofar as it contains a rebuttable presumption against granting a licence for property within a tenement (or shared main door) and does not provide for temporary licences.  The purpose of a policy was to inform the public of the approach which would be taken, and to achieve consistency.  While there could always be exceptions from a policy, it was clear that the Council would in fact grant licences for secondary STLs in tenement accommodation more than exceptionally, and so the rebuttable presumption would not in fact achieve consistency nor assist applicants in knowing whether an application was likely to be granted.  More fundamentally, it was not the function of the licensing authority to decide that a licence should not be granted simply because a property was of a particular type or in a particular area.  The regulatory regime that was set up made clear that the planning and licensing regimes were intended to complement each other, and those were decisions for planning.  The Council remained entitled to refuse a particular application on amenity grounds, but not to have a general policy of refusing a licence simply because the property was in a tenement.

The lack of a regime for temporary licences has also been held to be irrational. The reasons given by the authority for its policy of not issuing temporary licences for properties in a tenement applied equally to other forms of STL, for which temporary licences were available.

As regards floor coverings, Lord Braid has ruled that to the extent the policy required carpets for all secondary lets, including ground floor flats and detached houses, it was irrational and, to the extent that it could expose a licence holder to significant expense for no good reason, it was oppressive.

However, as regards the restriction of licences for tenement properties to a period of one year, Lord Braid has rejected the petitioners’ challenge, holding that this aspect of the policy was rational, proportionate and justified by the need for greater inspections.

The petitioners separately argued that the above aspects of the policy (other than the provision relating to carpets) contravened the Provision of Services Regulations 2009, in that the policy was not clear, unnecessarily duplicated planning law and was likely to dissuade applicants from applying.  Lord Braid also upheld this argument in relation to the rebuttable presumption and the restriction on temporary licences.  In relation to the one year restriction, this did not in itself contravene the regulations.  However the policy ought to have contained a statement of the Council’s position regarding renewals, which is that a renewal of an STL for secondary letting in a tenement is likely to be granted if there has been no change of circumstances since the licence was granted.  The omission of such a statement was a contravention of the Regulations since the Council’s approach was not clearly set out in the policy.

A separate human rights challenge was dismissed as premature.

A hearing will be convened to discuss the precise terms of the order to be made in light of Lord Braid’s decision.

Opinion of Lord Braid can be viewed here.

Ampersand’s Ross Anderson was junior counsel to Morag Ross KC, instructed by Gilson Gray.

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Ampersand Advocates Recognised in The Best Lawyers in the United Kingdom 2024 Edition

Ampersand Advocates is thrilled to announce seven members have been included in the esteemed group of legal professionals recognised in the 2024 edition of The Best Lawyers in the United Kingdom. The accolades were officially published on 8 June 2023 on bestlawyers.com.

The inclusion in Best Lawyers is a result of a rigorous peer-review survey. The founding principle of Best Lawyers, unchanged since 1981, forms the basis of their transparent methodology: the best lawyers know who the best lawyers are.

The advocates from Ampersand Advocates who have been recognised in the 2024 edition of The Best Lawyers in the United Kingdom are:

Ampersand Advocates congratulates all for their well-deserved recognition and extends its appreciation to the legal community for their continued support and trust.

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The SPLG Annual Conference 2023

* External provider: Scottish Public Law Group *

Book online here

Keynote speech from Lord Sales, Justice of the Supreme Court of the United Kingdom.

Essential legal update briefings will be offered by:

We will also have insightful and topical contributions in panel sessions on issues including:

Further speakers will be announced shortly.

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West Lothian Council v Scottish Ministers [2023] CSIH 3

Background

This planning appeal concerned a refusal by West Lothian Council (“Council”) for planning permission to construct around 104 homes on a greenfield site at Hen’s Nest Road, East Whitburn. Ogilvie Homes (“Developers”) appealed the decision to the Scottish Ministers (“Ministers”), who appointed a Reporter. The Reporter granted planning permission. The Council appealed the reporter’s decision to the Inner House.

 

Key Issue

The key issue in dispute was whether there was a shortfall in the “5 year effective housing land supply”. This is a test which acts as a proxy to measure whether sufficient land is being made available for development to meet the Council’s housebuilding targets. The Council is obliged to maintain a minimum of a 5 year effective housing land supply at all times. If there is a shortfall, then policies in the local development plan (“LDP”) and the strategic development plan (“SESplan”) allow for additional greenfield sites to be released for development providing certain criteria are met. Additionally, in terms of Scottish Planning Policy (“SPP”), there is a presumption in favour of sustainable development which becomes a significant material consideration where there is such a shortfall. The greater the shortfall, the more that any adverse impacts would have to outweigh the benefits. This is called applying the ‘tilted balance’.

It was not disputed that the criteria in the LDP and SESplan policies were met. It was not disputed that, if engaged, the tilted balance did not favour development.

However, the Council argued that there was no shortfall and the Reporter had erred in law in arriving at the conclusion that there was. The Council were critical of the method used to calculate the shortfall. The Council argued that an “average method” be used, which involved taking the total housing land requirement over the life of the current plan (19,811), dividing that figure by the number of years (15) and multiplying the result by 5 years. This resulted in a requirement of 6,605 units, which was less than the projected supply of 8,157 units. The average method, however, leaves out of account past under-delivery, but projected that there was over 6 years’ worth of supply in West Lothian.

The Developer had argued that a “residual method” be used which, on the contrary, takes into account any prior under-delivery against housing targets in previous years. Using the residual method there was less than 3 years’ worth of supply. There was, they argued, therefore a significant shortfall in 5 year effective housing land supply.

Reporter’s Decision

Rather than simply accept either the Council or the Developers’ calculation, the Reporter considered he could apply a simpler method to determine whether there was a shortfall. He looked at the number of houses that were targeted to be built by the end of the plan in 2024 (18,010) and estimated that the Council would be at least 4,000 units short. There was no established target beyond 2024 to do a conventional 5 year calculation. The Reporter concluded there was a significant shortfall, and then cross-checked this conclusion was another recent decision in West Lothian at Mossend which proceeded on very similar figures and came to the same result.

Court’s Decision

The Lord President gave the opinion for the First Division, which also included Lords Woolman and Pentland. The Lord President emphasised that reporters were not lawyers and neither, primarily, was their audience. It was desirable for their reasoning to be “intelligible, yet succinct”. This Reporter’s decision readily met that standard. The Reporter asked himself the right question, was aware of the alternative methods of calculation and the recent history of changes and court challenges to planning policy in this area.

The Court was satisfied that there was no basis to interfere with the Reporter’s decision. The answer to the question of whether there is a shortfall is a matter of planning judgement for the Reporter to decide. The Court will only intervene if there were no material before the Reporter to support his conclusion. In this case there was such material.

The Court emphasised that the development plan policies that allow for exceptional release of land when a shortfall is demonstrated are a means to an end and not an end in themselves: “That end is the fulfilment of the overall purpose of a development plan, which is to ensure that the housing need in the area is met”.

It was clear that the Council had fallen far behind its targets. The Reporter was dealing with a situation where there was no target established for 5 years’ time. In the circumstances, the Reporter’s approach was “realistic and accorded with common sense”. The Court was reassured by the fact that the Reporter had cross-checking his conclusions with the decision in Mossend. Ultimately the Court declared that the Reporter’s decision was “entirely coherent”.

West Lothian Council: Douglas Armstrong KC

Scottish Ministers: Michael Way

Ogilvie Homes: AO Sutherland (sol ad)

Opinion of First Division can be found here.

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Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32

Background to the Appeal

The Abortion (Safe Access Zones) (Northern Ireland) Bill (“the Bill”) was passed by the Northern Ireland Assembly (“the Assembly”) on 24 March 2022. The Bill is primarily designed to protect the right of women to access abortion and associated sexual and reproductive health services. It prohibits anti-abortion protests and other specified behaviour within “safe access zones” around abortion clinics and related premises.

This reference concerns clause 5(2)(a) of the Bill, which makes it a criminal offence “to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of… influencing a protected person, whether directly or indirectly”. The persons protected by clause 5(2)(a) include patients, persons accompanying them, and staff who work at the premises where abortion services are provided.

Under the Northern Ireland Act 1998, the power of the Assembly to make legislation (or its “legislative competence”) is limited. A provision of a Bill is outside the Assembly’s legislative competence and therefore not law if it is incompatible with any of the rights protected by the European Convention on Human Rights (“the Convention”) (sections 6(1) and 6(2)(c)).

The Attorney General for Northern Ireland (“the Attorney”) is concerned that, because clause 5(2)(a) of the Bill does not provide any defence of reasonable excuse, it disproportionately interferes with anti-abortion protesters’ rights to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly. These rights are protected by articles 9, 10 and 11 of the Convention. The Attorney therefore asks the Supreme Court to decide whether the penal sanction with no provision for reasonable excuse created by clause 5(2)(a) of the Bill is outside the legislative competence of the Assembly because it involves a disproportionate interference with the article 9, 10 and 11 rights of those who seek to express opposition to the provision of abortion treatment services in Northern Ireland.

Judgment

The Supreme Court unanimously holds that clause 5(2)(a) of the Bill is compatible with the Convention rights of those who seek to express their opposition to the provision of abortion treatment services in Northern Ireland. Accordingly, clause 5(2)(a) is within the legislative competence of the Assembly. Lord Reed gives the judgment, with which all the other members of the Court agree.

Reasons for the Judgment

Before considering clause 5(2)(a) of the Bill, the judgment addresses a number of preliminary issues [10]. First, the Court confirms that a provision of devolved legislation such as clause 5(2)(a) will only be outside legislative competence because it is incompatible with Convention rights if it would give rise to an unjustified interference with those rights in all or almost all cases [12]-[19].

Secondly, the Court considers questions arising from the cases of Director of Public Prosecutions v Ziegler [2021] UKSC 23 and Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin). It holds that, during a criminal trial, it is not always necessary to assess whether a conviction for an offence would be a proportionate interference with a particular defendant’s rights under articles 9, 10 and 11 of the Convention [29], [34]-[41], [45]-[51], [63]. The ingredients of an offence can in themselves ensure that a conviction will be compatible with those Convention rights [34]-[41], [45]-[51], [55], [65]. This may be the case even if the offence does not include a defence of lawful or reasonable excuse [44]-[55], [64]. The assessment of whether an interference with a Convention right is proportionate is not an exercise in fact-finding, but rather involves the application of a series of legal tests in a factual context [30]-[34], [66]. As a result, it does not necessarily need to be conducted by the body responsible for finding the facts at any trial [67].

The Court then turns to the question referred to it by the Attorney, namely, is clause 5(2)(a) outside the legislative competence of the Assembly because it is incompatible with anti-abortion protestors’ rights under articles 9, 10 and 11 of the Convention?

The Court holds that clause 5(2)(a) is compatible with the Convention rights of anti-abortion protestors and is therefore within the legislative competence of the Assembly. It recognises that – although not all anti–abortion protest activities are protected by the Convention – clause 5(2)(a) does restrict the exercise of protesters’ Convention rights [111]-[112]. However, this restriction can be justified.

First, the restriction of the exercise of Convention rights is prescribed by law [113]. Secondly, clause 5(2)(a) pursues a legitimate aim. It seeks to ensure that women have access to advice and treatment relating to the lawful termination of pregnancy under conditions which respect their privacy and dignity, thereby protecting public health. It is also designed to enable staff who work at abortion clinics and related premises to attend their place of work without being intimidated, harassed or abused. These aims fall within the qualifications in articles 9(2), 10(2) and 11(2) of the Convention, which permit the restriction of rights in order to prevent disorder, protect health and protect the rights and freedoms of others. Furthermore, the right to access health care in conditions of privacy and dignity, and the right to pursue employment, are protected by article 8 of the Convention. That right entails a positive obligation which requires states to enable pregnant women to exercise their right of access to lawful abortion services effectively, without being hindered or harmed by protesters in the ways described in the evidence before the Court [114]-[115].

Thirdly, the restrictions imposed by clause 5(2)(a) are proportionate. The aim of the clause is sufficiently important to justify restricting anti-abortion protestors’ rights under articles 9, 10 and 11, and the restrictions the clause imposes have a rational connection to that aim [117]-[118]. Clause 5(2)(a) is not unduly restrictive: rather, it is rational and necessary if the Bill is to achieve its intended aims [119]-[122]. A defence of reasonable excuse would render clause 5(2)(a) less effective [123]. The clause itself strikes a fair balance between competing rights [154]-[155].

In reaching this conclusion, the Court has regard to the following considerations. First, the context is a highly sensitive one in which the protection of the private lives and autonomy of women is of particular importance. Secondly, women who wish to access lawful abortion services have a reasonable expectation of being able to do so without being confronted by protest activity designed to challenge and diminish their autonomy and undermine their resolve. Thirdly, the Bill only prevents anti–abortion protestors from exercising their rights under articles 9, 10 and 11 of the Convention within designated safe access zones. They are free to protest anywhere else they please. Fourthly, the women and staff protected by clause 5(2)(a) are a captive audience who are compelled to witness anti–abortion activity that is unwelcome and intrusive when they visit premises where abortion services are provided. Fifthly, the Bill is intended to implement the UK’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women. Sixthly, the maximum penalty for an offence under clause 5 is a fine of up to £500. Seventhly, in a sensitive context like this one, states have a wide margin of appreciation in situations where it is necessary to strike a balance between competing Convention rights [124]-[131].

For all of these reasons, the Court is satisfied that the restrictions imposed by clause 5(2)(a) of the Bill are justifiable. They are required to protect the rights of women seeking treatment or advice, and are also in the interests of the wider community, including other patients and staff of clinics and hospitals. A conviction under clause 5(2)(a) will not therefore interfere disproportionately with a protestor’s rights under articles 9, 10 and 11 of the Convention [154]. Accordingly, clause 5(2)(a) is within the Assembly’s legislative competence [157].

References in square brackets are to paragraphs in the judgment

Justices

Lord Reed (President), Lord Kitchin, Lord Burrows, Lady Rose, Lord Lloyd–Jones, Lord Carloway, Dame Siobhan KeeganFull judgment can be viewed on the UK Supreme Court website here.

Paul Reid was junior counsel to the Lord Advocate, instructed by the Scottish Government Legal Directorate.

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New panel of Standing Junior Counsel to the Advocate General for Scotland announced

Following the recent appointment process, the Advocate General for Scotland is pleased to announce new additions to his General Panel of Standing Junior Counsel to deal with UK Government work arising in the Scottish Courts.  The appointments, which have been approved by him include two Ampersand Advocates, Alan Cowan and Ayla Iridag.

Full details of all appointments can be found on the UK Government’s website here.

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