In the recent Queensland Planning and Environment Court decision of Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd [2009] QPEC 3591 the Court made enforcement orders sought by the Council in relation to the owner's use of a large dwelling house for short term rental accommodation. The Court held that the use of the premises was properly classified as an 'accommodation building' rather than a 'detached house' and was therefore unlawful in the absence of an effective development approval.

FACTS

The Sunshine Coast Regional Council had received noise complaints from residents that a large house at Little Mountain in Caloundra was being used for short term rental accommodation. The house was located within a rural residential precinct and was being rented by the owner to large groups of up to 20 people, typically for short periods of 2-3 days at a time. The use of 'Accommodation Building' was a defined use under the 2004 Caloundra planning scheme, but no approval for the use had been granted.

The Council applied to the Court for an Enforcement Order preventing the owner from using the house for the purposes of an 'accommodation building'. This use is impact assessable under the planning scheme. No development approval had been granted to authorise the use of the house for the provision of short term holiday accommodation.

The owner took the position that the use of the land was consistent with that of a 'detached house' which did not require a development approval under planning scheme.

The applicable law was the Integrated Planning Act 1997, as the proceedings were commenced prior to 18 December 2009, when that Act was replaced by the Sustainable Planning Act 2009.

DLA Phillips Fox represented the Council in the proceedings.

ARGUMENTS RAISED BY THE PARTIES

In the absence of any significant factual dispute the matter turned upon the interpretation of the relevant use definitions in the Planning Scheme.

The Council argued that the owner's use of the premises constituted an 'Accommodation Building' defined as meaning 'a use of premises for residential accommodation which does not comprise dwelling units.'

A dwelling unit is defined as meaning 'any building or part of a building comprising a self-contained unit designed adapted or used for the exclusive use of one household.' The Council also based its argument upon a flow chart contained in the planning scheme which defines categories of uses for the residential use class and distinguishes between short term accommodation (which includes accommodation building) and long term accommodation (which includes detached house).

The owner argued that the house was used as a 'detached house' which is defined to mean 'a use of premises for residential accommodation comprising a detached dwelling unit on one site. The term includes an outbuilding which is subordinate to the dwelling unit, a home office and a small secondary dwelling unit being an annexed unit.'

COURT'S DECISION

The Court accepted the Council's argument that the house was being used as an 'accommodation building' under the Planning Scheme and accordingly required a development approval.

The Court was satisfied that the use of the premises was for short term residential accommodation which did not comprise dwelling units.

The Court, in considering the definition of 'dwelling unit' and whether the owner's use of the premises was that of a 'household', stated that the word 'household' suggests a common intention of a group of persons to live together on a permanent basis. The Court found that due to the temporary nature of the rentals, no permanent intention to reside together could be held to exist by the renters, and their use of the premises was inconsistent with that of a 'household.'

The Court granted the Enforcement Order sought by the Council to prevent the unlawful use of the house from continuing in the absence of an effective development approval.

The decision clarifies a grey area in the Council's planning scheme, in an important decision that is likely to have implications in the major coastal shires in South East Queensland.

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