Opinion

The 90 day Rule, further thoughts!

If you operate short term accommodation within London you will be well versed, i’m sure, in the provisions of the 90 Day Rule.

Within London you can sub-let your home for a maximum of 90 days per calendar year. Simply put, if you live in London and put up your whole home on Airbnb, you are allowed to have guests stay for a maximum of 90 nights a year – Airbnb even has a handy ‘nights booked’ counter so that you can see how many nights you have left.

Once you have reached your limit planning permission is needed to extend the number of nights as a ‘material change of use’. That is unless of course you wait until the next calendar year and use another packet of 90 days.

Restrictions on short-term lets in London have in fact been around since the 1970’s. Homeowners letting their home for a period less than 90 days used to require specific planning consent from their local councils. However in 2015 the limit was changed under the provisions of the Deregulation Act to allow for a maximum of 90 days prior to the need for a planning permission. If a homeowner wishes to rent their home using short-lets for more than 90 days, they must now apply for the relevant planning permission

44-Short-term use of London accommodation: relaxation of restrictions
(1)The Greater London Council (General Powers) Act 1973 is amended as follows.
(2)In section 25 (provision of temporary sleeping accommodation to constitute material change of use), after subsection (1) insert—
“(1A)Subsection (1) is subject to section 25A.”
(3)After section 25 insert—
“25AException to section 25
(1)Despite section 25(1), the use as temporary sleeping accommodation of any residential premises in Greater London does not involve a material change of use if two conditions are met.
(2)The first is that the sum of—
(a)the number of nights of use as temporary sleeping accommodation, and
(b)the number of nights (if any) of each previous use of the premises as temporary sleeping accommodation in the same calendar year,does not exceed ninety.
(3)The second is that, in respect of each night which falls to be counted under subsection (2)(a)—
(a)the person who provided the sleeping accommodation for the night was liable to pay council tax under Part 1 of the Local Government Finance Act 1992 in respect of the premises, or
(b)where more than one person provided the sleeping accommodation for the night, at least one of those persons was liable to pay council tax under Part 1 of that Act in respect of the premises.
(4)For the purposes of subsection (2)(b), it does not matter whether any previous use was by the same person.”
(4)After section 25A (inserted by subsection (3) above) insert—
“25BFurther provision about section 25A
(1)The local planning authority or the Secretary of State may direct that section 25A is not to apply—
(a)to particular residential premises specified in the direction;
(b)to residential premises situated in a particular area specified in the direction.
(2)A direction under subsection (1) may be given only if the local planning authority or (as the case may be) the Secretary of State considers that it is necessary to protect the amenity of the locality.
(3)The local planning authority may give a direction under subsection (1) only with the consent of the Secretary of State.
(4)A direction under subsection (1) may be revoked by the person who gave it, whether or not an application is made for the revocation.
(5)The Secretary of State may—
(a)delegate the functions of the Secretary of State under subsection (1) or (4) to the local planning authority;
(b)direct that a local planning authority may give directions under this section without the consent of the Secretary of State.
(6)The Secretary of State may revoke a delegation under subsection (5)(a) or a direction under subsection (5)(b).
(7)The Secretary of State may by regulations made by statutory instrument make provision—
(a)as to the procedure which must be followed in connection with the giving of a direction under subsection (1) or in connection with the revocation of such a direction under subsection (4);
(b)as to the information which must be provided where the local planning authority seeks the consent of the Secretary of State to the giving of a direction under subsection (1).
(8)A statutory instrument containing regulations under subsection (7) is subject to annulment in pursuance of a resolution of either House of Parliament.
(9)In this section, “local planning authority” has the same meaning as in the Town and Country Planning Act 1990 (see section 336(1) of that Act).”

45-Short-term use of London accommodation: power to relax restrictions
(1)The Secretary of State may by regulations made by statutory instrument provide that section 25(1) of the Greater London Council (General Powers) Act 1974 does not apply if conditions specified by the regulations are met.
(2)Regulations under subsection (1) must include provision corresponding to section 25B of that Act.
(3)Regulations under this section may amend the Greater London Council (General Powers) Act 1973.
(4)Regulations under this section may—
(a)make different provision for different purposes;
(b)include incidental, supplementary, consequential, transitional, transitory or saving provision.
(5)A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

Deregulation Act 2015

Whilst this was originally a London only issue the ’90 day concept’ is spreading.

In the case of appeal’s Appeal

A – Ref: APP/Q0505/C/18/3196460 – Notice 1 Flat 3, Roman House (Marino House), Severn Place, Cambridge CB1 1AL
Appeals B to F inclusive – Notices 2 to 6 Flats 6, 7, 8, 9 & 11 Roman House, Cambridge CB1 1AL (See Schedule)
Appeals G to M inclusive – Notices 7 to 13 Flats 1, 2, 3, 4, 5, 6, & 7 Florian House Cambridge CB1 1AQ (See Schedule)

Inspector Wharton concluded that:

In summary, therefore, it is my view that as a matter of fact and degree the variable nature of the transient uses of the properties has resulted in a distinctly different character of usage from that of a Class C3 use. I agree with the Council that the use of the units has resulted in some sort of hybrid use between Class C3 and a hotel Class C1 use. I acknowledge that the services provided are not anywhere near a full hotel service. Nevertheless the flats are let as separate suites of accommodation; they are let and advertised as a hotel might be and, most importantly have been let for many 1 or 2 night stays.

There is no current minimum night’s stay and I agree with the Council that any void in the bookings is likely to be filled to avoid any loss of income and that the character of usage is affected by the unpredictability of the frequency of use. I consider that the shorter periods of residency clearly distinguish the nature of the uses at Roman House and Florian House from the more settled pattern of occupancy of atypical Class C3 use. The fact that letting patterns have significantly changed since the notices were issued does not alter my view that a change of use from Class C3 to a sui generis residential use has occurred.

APP/Q0505/C/18/3196460 et al

Interestingly the Council relied on the judgment in Moore v. SSCLG [2012] EWCA Civ 1202 (“ Holiday lets may be a change of use”). The Council referred to the court’s finding that ‘It was not correct to say either that using a dwelling for commercial holiday lettings would never amount to a material change of use or that it would always amount to a material change of use. Rather in each case, it would be a matter of fact and degree and would depend on the characteristics of the use as holiday accommodation’

The Cambridge case seem’s to have sparked wider interest by LPA’s in understanding both the SA market and the Holiday Market. Indeed a wide variety of reactions has resulted with Southend treating AirBnB style development as C1, Oxford treating the matter as a distinct sui-generis use with a 140 day time limit and BCP treating it as a ‘holiday let use’

I don’t think this is the end of the ’90 day’ question but I do think its time that the Government took one of the more sensible ramblings from the Labour Party Manifesto and consider a ‘Class C5 – Holiday and Short Term Letting’ use class.

By Jon McDermott