Five months on, council yet to rule on legality of short-term lets in Rathmines co-living

Five months on, Dublin City Council is yet to decide whether planning laws and conditions allow for short-term letting in Bartra Property’s co-living complex in Rathmines.

On 14 August, the council posted a warning letter to Bartra Property (Rathmines) Limited after evidence that the company was renting some rooms to tourists for a day or two at a time.

It was alleged that the premises were being used for short-term letting without planning permission or the required notifications of exemption, the letter said.

A few days later, on 19 August, Dún Laoghaire-Rathdown County Council issued a warning letter to Bartra Property (Eblana) Limited, saying it was looking into whether short-term letting in another of its complex there was in violation of its planning conditions.

After a back-and-forth with Bartra, Dún Laoghaire planners closed its case in mid-November, citing a looseness in the central government guidelines governing co-living complexes and saying that the lengths of stay weren’t defined in the planning permission.

But it is not clear if Dublin city planners will rule the same way. The decision could have a knock-on impact if the operators of other co-living complexes jump on.

Complexes with more than 1,500 bed spaces had already been granted planning permission, the vast majority in Dublin city, before the ban on new co-living projects went through in November 2020, shows a government report

As the months pass while the Dublin city planners decide how they will rule on the issue, Bartra Property continues to let out rooms at its Rathmines complex for short holiday stays.

It costs from €1,990 a month – about €66 a night – to stay in the Rathmines complex on co-living terms, according to the Niche Living website. But over on Booking.com rates for rooms in Rathmines vary from a low of €129 a night to €369 a night over the weekend before St Patrick’s Day.

For how long?

Before it closed its case, Dún Laoghaire-Rathdown County Council went back and forth with Bartra over whether short-term letting was permitted in the Niche Living on Eblana Avenue, show emails released under the Freedom of Information Act to an independent researcher Zita Casserly.

On 19 August, Dún Laoghaire-Rathdown planners warned Bartra Property that it was looking at two possible breaches of the planning permission.

One condition of that permission had been that the development had to be carried out in line with the plans and particulars lodged with the application.

Another condition had been that the developer operate it in line with the management plan that it had submitted, and had been approved, by the council.

That management plan says that people will stay from two months to 12 months. Shorter-term letting was not exempt development, the council said.

Indeed, the plan submitted in November 2019 and okayed by the council has a section devoted to occupancy length.

“Niche Living will be offering Licence agreements to allow for varying lengths of stay from 2 months to 12 months. Long stay residents will be managed into suites with better levels of amenity, such as non north facing rooms, better outlook etc),” the plan says.

Bartra Property replied to the council on 29 August.

Yes, the operation plan they had submitted as part of their planning compliance did say people would stay for between two and 12 months, the letter says.

But that wasn’t an agreement to stick to that timeframe, they said. Rather, “those time frames were included for illustrative purposes to assist in explaining the proposed management regime for the operation of the Niche Living development as part of the compliance submission”.

There was nothing in the condition explicitly saying that Bartra Property and the council had to agree how long people would stay for, the letter said.

Kieran Rose, a former Dublin city planner, says he doesn’t buy this justification.

Developments do have to be done in line with the particulars of what an owner has submitted as part of a planning permission, he said. “The particulars include letters and reports.”

From homes to hotel?

Another argument Bartra Property made is that the government guidelines always foresaw co-living spots being rented out sometimes as short-term lets.

Short-term letting is defined as lettings of up to 14 days.

In the correspondence with Dún Laoghaire-Rathdown County Council, it pointed to wording in “Sustainable Urban Housing: Design Standards for New Apartments, Guidelines for Planning Authorities”.

Those guidelines note the usefulness of the accommodation to “new employees arriving in urban areas and seeking short term accommodation during an establishment or local acclimatisation period that may be longer than a few weeks”.

Bartra Property’s letter highlights the end of that line. That shows the section “contemplates” short-term letting as a possible use, and that using it for such wasn’t a material change of use – although they agree it couldn’t be the main use, they said.

The company stressed that short-stays weren’t the primary use in the Dún Laoghaire complex. It had been seeking longer-term lettings from residents, a company representative wrote.

But some potential residents had wanted to “trial” living there for shorter periods, they said, and they got requests during “shoulder” periods between longer-term lettings too.

Exactly what percentage of the rooms in each complex are being made available for short-term letting is unclear. Bartra Property didn’t respond to a query about that, sent on Tuesday morning.

In any case, Dún Laoghaire-Rathdown County Council seems to have agreed with that argument.

In a letter on 14 November, a council planner said the council had closed the enforcement case against Bartra over its short-term letting because the letting lengths hadn’t been defined in the planning permission or the conditions, and weren’t in the central government guidelines for co-living.

“The Planning Authority do not consider that there is any further planning enforcement action in respect of the matter raised available at this time,” it said.

Rose, the Dublin city planner, said though he would argue that co-living and what is effectively an apart-hotel use are totally different uses.

For something not to be a material change of use, it has to be reasonable and both be the same class of uses, he said.

That could mean building a home a smidgeon wider than it is meant, or even having an employee stop-over in a room in a co-living complex for a weekend on a complementary break, he says.

But not, in his view, advertising and promoting short-term lets to tourists on a website, says Rose.

If there’s no difference between co-living and an apart-hotel use, does that not mean you could convert apart-hotels to permanent rental, he says. “Which would be a lesser form of housing quality.”

It would be interesting for somebody to go to An Bord Pleanála and ask for a ruling as to whether operating short-term lets within co-living is exempted development, he said.

“Because that is basically what Dún Laoghaire is saying, you know, they’re saying the change from one to another does not require planning permission because that is exempted,” he says.

Casserly, who has written a lengthy research paper on enforcement and short-term lets, has tried to get more answers from Dún Laoghaire-Rathdown about how they came to their decision.

She asked whether the council had considered that short-term letting at the building was a change of use from residential to commercial. She also asked what legal cases were used to justify the argument that commercial use of a residential property was a subsidiary use.

It’s just the idea that you’ve been granted a residential planning permission, said Casserly recently on the phone. “You can’t just use it for commercial purposes.”

She had also asked Dún Laoghaire-Rathdown County Council if staff considered how there wasn’t any exemption in short-term letting regulations from the need for planning permission for “non-principal private residences”.

Those regulations allow people to short-term let their “principal private residence” – the place they usually live – for up to 90 days without planning permission.

So, on the flipside, short-term letting a house or apartment that isn’t somebody’s principal private residence requires change-of-use planning permission.

Dún Laoghaire-Rathdown planners told her they can’t comment on individual cases, show emails.

Rose, the former city planner, says the government’s whole motivation to restrict short-term letting is to prevent homes being siphoned away from long-term renters and used for tourist stays.

“It’s crazy because we are in a housing crisis,” said Rose. “And Dún Laoghaire is basically saying, ah, that’s grand you can reduce housing supply and increase hotel accommodation.”

He wonders if Dún Laoghaire Rathdown County Council was reluctant to take on Bartra Property because it is a big player that can lawyer up.

And maybe why Dublin City Council is taking its time to decide the case in Rathmines too, he said.