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Escanaba Pty Ltd v Noosa Shire Council [2023] QPEC 14
"This case is another decision about short-term accommodation uses, but in slightly different context. The appeal related to the Council’s decision, under a local law, to refuse an application to allow “the operation of short stay letting” – a prescribed activity under the Noosa Shire Council Local Law No. 1 (Administration) 2015 (Local Law). The statutory basis for the appeal was section 229 of the Planning Act 2016, which allows an appeal to be made against the decision of a local government under a local law about the use of premises.
The Appellant was the owner of a duplex at Sunshine Beach. The premises had the benefit of a development approval, issued in 2015, for a material change of use described as ‘Multiple Housing Type 2 – Duplex’. The owner wanted to use the duplex for short-term accommodation and came up against an approval requirement under the Local Law.
The Local Law made it an offence to carry out a prescribed activity without a current approval granted by the Council. The “prescribed activity” under the Local Law was the “operation of short stay letting” which, by operation of the relevant definition, was letting the premises by the owner to someone else, on a commercial basis, for a period of less than three months. The criteria for granted the approval was set out in the Local Law, and included whether the operation of short stay letting could be lawfully conducted on the premises. That criterial meant the Court had to consider the scope of the 2015 development approval for Multiple Housing Type 2 – Duplex, and whether that authorised short stay letting.
The question was answered in the negative. After considering the planning scheme provisions that applied at the time the 2015 approval was granted, the Court determined that “Multiple housing” – a “use class” under the 2006 Noosa Plan – referred to permanent or semi-permanent residents and could be contrasted to the “visitor accommodation” use class, where the types of uses referred, at least in part, to short-term accommodation. The Court considered that it was clear the scheme drew a distinction between permanent/semi-permanent occupation, and short-term accommodation (and that the 2006 scheme contained a clear indication that the nesting diagram which showed the “use classes” was meant to inform the meaning of the defined uses in the scheme). The Court also considered that the term “short stay letting” under the Local Law was an analogue of “short term accommodation”. The Court concluded that the 2015 approval did not authorise the operation of short stay letting."
Other cases in this "Planning and Environment Quarterly Case Review - June 2023" can be found at https://www.lexology.com/library/detail.aspx?g=a09d57e3-0e0b-4adc-85cb-046d09df1608
Editor's Note:
Do you have a view on the short term accommodation issue in Noosa? We would love to hear from you and are happy to post your contribution here anonymously. The more local stories we have the better. Please always cite sources whenever statistics are quoted. Email to: nnsnoosa1@gmail.com
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