published at Colin Biggers & Paisley https://www.cbp.com.au/insights/insights/2024/april/holiday-cancelled-dismissal-of-appeal-against-the
In brief
The case of Escanaba Pty Ltd v Noosa Shire Council [2023] QPEC 14 concerned an appeal to the Planning and Environment Court of Queensland (Court) by Escanaba Pty Ltd (Applicant) against the decision of the Noosa Shire Council (Council) to refuse its application under a local law (Application) for short stay letting (Proposed Use) to allow the Applicant to let a unit which it owns in a duplex at Sunshine Beach, Noosa (Premises).The Court considered the relevant provisions of the local law and an existing development approval for the Premises, and upheld the Council's decision to refuse the Application.
Background
The Noosa Shire Council Local Law No. 1 (Administration) 2015 (Local Law) relevantly defines "short stay letting" as "…the provision, or making available, of premises for use by 1 or more persons, other than the owner of the premises, for less than 3 consecutive months…". Also relevant is section 5(a) of the Local Law which states a "prescribed activity" is an activity listed in part 1 of schedule 2, which includes the "operation of short stay letting or home hosted accommodation" that is defined in part 2 of schedule 2 as "…the provision, or making available, on a commercial basis, of short stay letting or home hosted accommodation".
Under section 6 of the Local Law it is an offence to undertake a prescribed activity without a current approval granted by the Council. Section 9 of the Local Law sets out the Council's discretion to grant an approval where the stated requirements are met, and under section 9(1)(d) reference is to be had to additional criteria prescribed for the activity under a subordinate local law.The relevant additional criteria are contained in section 4 of schedule 21A of the Noosa Shire Council Subordinate Local Law No. 1 (Administration) 2015 (Subordinate Local Law). In particular, section 4(e)(i)(A) of the Subordinate Local Law states that the Council may only grant an approval if it is satisfied that "…the operation of the short stay letting or home hosted accommodation [complies with]…any relevant development approval…".
At the time the Application was made, the Premises had the benefit of a development approval issued in 2015 for a development permit for a material change of use for "Multiple Housing Type 2 - Duplex" (2015 Approval). Accordingly, the Application "…could not…be approved if the [P]roposed [U]se for the operation of short stay accommodation [was] inconsistent with the terms of the [2015 Approval]" (at [8]).On 27 April 2022 the Council refused the Application, finding that the Proposed Use was inconsistent with the terms of the 2015 Approval as it did not permit "visitor or short term accommodation" (at [8]).
The issue for the Court was therefore confined to whether the 2015 Approval authorised the Proposed Use as defined in the Local Law.The Court found that the 2015 Approval did not authorise the Proposed Use as defined in the Local Law.
Continue reading at https://www.cbp.com.au/insights/insights/2024/april/holiday-cancelled-dismissal-of-appeal-against-the
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