For us to provide you the most useful information on this issue, what is YOUR current situation?
SCENARIO 1
Owned your property PRIOR to 31 July 2020
+
Have been holiday letting the property that is provable by a consistent rental history
SCENARIO 2
Owned your property PRIOR to 31 July 2020
+
Have not holiday let in the past consistently (without a break of more than 12mths)
SCENARIO 3
Purchased an existing holiday let property PRIOR to 31 July 2020
+
Have not holiday let the property consistently
SCENARIO 4
Purchased your property AFTER the 31 July 2020
+
Previous owners DID holiday let the property consistently prior to purchase
SCENARIO 5
Purchased your property AFTER the 31 July 2020
+
Previous owners DID NOT holiday let the property prior to purchase
What exactly is the new Noosa Town Plan?
Essentially under the new plan, Council proposes that any affected property owner, may lose their future right of choice, to holiday-let their house (for short-term accommodation) on a full-time basis, if they are not currently doing so.
New Town Plan commencement – changes to use of houses for short-term accommodation in Low-Density Residential zone.
On 16 July 2020, Noosa Council adopted a new town plan, being Noosa Plan 2020.
One of the new provisions in Noosa Plan 2020, is that Short-term accommodation is now an inconsistent use in the Low-Density Residential zone, and would require an impact assessment development application. This only applies if a new use is proposed in the Low Density Residential zone.
Approval is now required for houses wanting to undertake short term accommodation for the first time.
Short-term letting of an entire dwelling for more than 60 days or four occurrences in a calendar year is an inconsistent use in the Low Density Residential zone and requires an impact assessment application.
Approval is required if you do not have existing use rights to short term let and are proposing to start Short-term letting of an entire dwelling house on a regular or ongoing basis for the first time.
Who is affected and why?
Every owner of a residential property in the Low-Density Residential Zone, not currently operating short-term accommodation, is affected.
This includes owners that live in their own home, or rent to permanent tenants, or that are not currently interested in short-term accommodation.
Why? Because it means that unless your Existing Use Right is maintained (see below), your property will never be able to be used for STA at any stage in the future.
This affects your future right of choice, and it affects the right of choice of any future potential owner.
What might it mean for affected homeowners?
Under the new plan, one home may retain their right to have STA, while a neighbouring home may lose that right.
You may think this doesn’t really matter, and it may not at the moment, but these changes are forever.
When you come to sell your home, this may mean:
1. Your house may not sell because houses that maintain the option to STA are the ones in demand.
2. Your house may sell for a lower price, because you have lost the valuable option of STA.
3. If you want to redraw against your home, the banks may put a lower value on the house as you don’t have the ability to holiday let.
Understanding your current right of choice?
Currently, owners of all houses in the Low-Density Residential Zone have the right of choice to use their property to be owner-occupied, short-term or holiday let, or long-term rental.
Now, with the new plan, Council is proposing the right to undertake short-term/holiday letting is removed, unless an owner has an Existing Use Right based on previous use, or applies, and is approved, under the superseded planning scheme (as above).
As mentioned above, if your property is currently being used (full-time) for short-term (holiday, or short-term accommodation, that is considered an ongoing Existing Use Right (EUR) under the plan.
What is the independent legal opinion?
Independent legal opinion was obtained by Mr Lester Manning, P&E Law, who has been a specialist in this area for over 25 years, including experience working with councils all over Queensland.
Mr Manning’s opinion is based on his detailed knowledge of the Queensland Planning Act and Common Law Precedents, directly in relation to this issue.
Prior to the adoption of the Noosa Plan 2020, Mr Manning asserted:
The right exists under the current planning scheme for an interchangeable ability to use the accommodation for permanent and short-term residential living.
Under the current Noosa Plan 2006, a detached house can interchangeably be used for either permanent residential living or short-term holiday letting.
What action can I take?
Scenario 1
You owned your property PRIOR to 31 July 2020 + you have been holiday letting the property that is provable by a consistent rental history (without a break of more than 12mths).
What action do you take?
Scenario 2
You owned your property PRIOR to 31 July 2020 + have not holiday let in the past consistently.
What action do you take?
Scenario 3
You purchased an existing holiday let property PRIOR to 31 July 2020 + there is no history of holiday letting the property.
What action do you take?
Scenario 4
You purchased your property AFTER the 31 July 2020 + the previous owners DID holiday let the property consistently prior to purchase.
If the property has been used for short term accommodation in the past, in any capacity, prior to the new Town Plan, and you have not abandoned* that use, and you have some evidence (such as a tax return, receipt or statement from a managing agent or Airbnb) then you may have an Existing Use Right.
What action do you take?
Scenario 5
You purchased your property AFTER the 31 July 2020 +but the previous owners DID NOT let the property for holidays and didn’t get the superseded planning scheme.
What action do you take?
Additional important information
What Zone is your property in?
To see the Noosa Plan Zones (2020) and search your property to check what Zone your property is in, go to the Noosa Shire Council Zone Map.
The zoning information is found under the 'Land Parcels' information to the right of the map. Go down the list to find 'Noosa Plan Zones (2020) and your zone is displayed here. Click on the icon in the top right corner of the map page (next to the printer icon), to display the map legend.
Alternatively, use the PDF zoning maps provided by council of the entire shire.
Are you a property investor looking to purchase?
Are you a property investor in Noosa, wishing for more advice or information on the Noosa Town Plan changes?
Please contact us on 1300 810 944 or via email.
Summary from Noosa Shire Council
New Town Plan commencement – changes to use of houses for short term accommodation in Low Density Residential zone
On 16 July 2020, Noosa Council adopted a new town plan, being Noosa Plan 2020.
One of the new provisions in Noosa Plan 2020, is that Short-term accommodation is now an inconsistent use in the Low Density Residential zone, and would require an impact assessment development application. This only applies if a new use is proposed in the Low Density Residential zone.
Approval now required for houses wanting to undertake short term accommodation for the first time
Short-term letting of an entire dwelling for more than 60 days or four occurrences in a calendar year is an inconsistent use in the Low Density Residential zone and requires an impact assessment application.
Approval is required if you do not have existing use rights to short term let and are proposing to start Short-term letting of an entire dwelling house on a regular or ongoing basis for the first time.
Owners of properties currently operating as a holiday let property – no approval needed
Before the commencement of Noosa Plan 2020, planning approval was not required for a detached house to be used for short term letting.
If there has been a consistent pattern of the house being generally available for short-term accommodation prior to the commencement of Noosa Plan 2020, then the site may be considered to have existing use rights. If the use continues substantially in the same form then it continues to be protected, despite the commencement of Noosa Plan 2020.
Properties currently operating short term accommodation who believe they were operating lawfully prior to Noosa Plan 2020 and have existing use rights can continue to operate without further planning approval.
Only properties wishing to confirm they have existing use rights in writing need to make an application for existing use rights confirmation. It is not intended that every short-term accommodation operators make an application to confirm they have existing use rights unless the property owner requests confirmation and / or is unsure.
However, if there is a compliance matter that raises questions regarding the legitimacy of a property being used for short-term accommodation, evidence will need to be provided to demonstrate the property has lawful existing use rights.
Should the use of the house for short-term accommodation cease and be abandoned or change in scale and intensity, then the existing use rights may also cease.
Note NSTAA comment: Owners currently operating a holiday let, especially if for less than 6-months prior to the implementation of the Noosa Plan 2020 on 31 July 2020, may wish to consider independent advice and the option of making the below $631 application to be 100% certain of maintaining this right.
Owners of properties that are not currently operating STA, but believe they have an Existing Use Right as a holiday let property – can apply to establish that right
An application form will be available for applicants to apply for A Written Advice Notice from Council. A fee of $631 will be charged in accordance with Council’s Fees and Charges Schedule 2020-21.
The applicant will require evidence of past use and any other supporting information. Evidence includes for example, letter head property management agreements, letter head online booking platform agreements, commencement dates, advertised property listings, booking history etc.
A written advice will be issued within 10 business days advising of the assessment of existing use rights.
Applications will be administered through the Development Assessment Branch with existing resources.
Whilst the Act refers to “immediately prior” generally an existing lawful use should not be a one off, but have been operating with a consistent pattern prior to commencement to Noosa Plan 2020.
The use must have commenced, and cannot rely on an intention to commence the use. Similarly a one-off use of a house for short term purposes is unlikely to create an existing lawful use right. Such a one-off use would be more in the nature of a temporary use. A more consistent pattern of conduct involving the house being generally available for short term use would need to be demonstrated. This would be assessed on a case by case basis.
Owners of properties that have no existing use rights as a holiday let – may apply
Superseded Planning Scheme applications - 12 month window from 31st July 2020 to apply for short term accommodation under the previous town plan.
Dwelling houses that have not operated short- term accommodation and have no prior consistent pattern of undertaking such a use prior to the commencement of Noosa Plan 2020, do not have existing use rights to operate short-term accommodation.
A superseded planning scheme request is for properties that have no existing use rights. A superseded planning scheme request allows a property owner to make a request to apply for short-term accommodation under the provisions of the superseded planning scheme being Noosa Plan 2006.
$1380 is the adopted fee for a superseded planning scheme requests under Council’s Fees and Charges Schedule 2020-21 to cover Council’s costs of assessing and deciding the request. Council is able to charge a fee for superseded planning scheme requests as per the Planning Regulation 2017, Part 2, Division 3 s11(2)(g).
Once a request has been made, within 30 business days Council will decide whether or not to agree to the request.
In determining whether or not to agree to a superseded planning scheme request, Council may consider a range of factors, including the character of the street in which the property is located, the prevalence of short-term letting in the street and the potential impacts of the use on neighbouring residential amenity.
Council will issue a Decision Notice to the applicant notifying of Council’s decision.
If the Decision Notice approves the request no further planning approval is required for short term accommodation of a dwelling house.
The currency period and the approval is for six years from the date of the Decision Notice, meaning the short term accommodation must be commenced within that timeframe for the approval to remain current.
Why have we provided this advice?
The professional short term accommodation, or holiday letting industry in Noosa is acutely aware of the need to properly manage tourism and tourism growth.
The last thing we want is poorly managed STA affecting neighbourhoods and our destination brand.
As an industry, affordable housing is critically important. Without it, we cannot accommodate tourism and hospitality workers close to their places of employment. This is vital to our businesses and our local economy.
Our role is to support Noosa Council to help manage tourism in ways that are sustainable into the future.
We are providing this information to the community and any citizens affected by the Town Plan changes. This is to give individuals an understanding of what they may be able to do, to maintain what was previously a right of choice, in how their property might be used.
Did the State Government approve removal of an owner’s Existing Use Rights to STA?
The State Government approved the Town Plan and in doing so, imposed several conditions that the Council must adhere to when it comes to the plan’s implementation, including around short term accommodation. However, when conducting what is known as the State Interest Check when approving the Plan, the State does not extend to the issue of Existing Use Rights.
The State said the following on Existing Use Rights.
"The state assessment of the draft Noosa Planning Scheme was against a range of state interests. This did not extend to the legal status of current land uses in the Noosa Shire Council area.
The matter of existing lawful use rights and whether they exist are a matter that needs to be assessed on a case by case basis. The rights are governed by Chapter 7, Part 1 of the Planning Act 2016.
The Ministerial conditions are as follows.
“8. The Council must:
- A) prepare and publish a comprehensive guide explaining the regulatory requirements for operating short-term accommodation in the Noosa Shire Council local government area.”
- B) monitor the provisions relating to short-term accommodation, tourism and housing supply considering the outcomes sought across the residential zones.
The process shall, at a minimum:
- include a detailed analysis of the existing situation within the Noosa Shire, including numbers and types of short-term accommodation uses. This analysis should include annual comparison data that demonstrates the performance of the relevant scheme provisions;
- consider the economic and social benefits of the current situation, and forecast the potential long-term impacts of short-term accommodation across the residential zones;
- consider the zone intent, levels of assessment and regulation of short-term accommodation across the residential zones;
- consider the state interests of housing supply and diversity and tourism;
- the evidence-driven, comprehensive, and prepared in a detailed manner.” (Underlining added)
What does that Planning Act 2016 say?
The relevant section is below and the full Planning Act 2016 is here
Part 1 Existing uses and rights protected
260 Existing lawful uses, works and approvals
(1) If, immediately before a planning instrument change, a use of premises was a lawful use of premises, the change does not— (a) stop the use from continuing; or (b) further regulate the use; or (c) require the use to be changed.
(2) If a planning instrument change happens after building or other works have been lawfully constructed or effected, the change does not require the building or works to be altered or removed.
(3) If a planning instrument change happens after a development approval is given, the change does not— (a) stop or further regulate the development; or (b) otherwise affect the approval to any extent to which the approval remains in effect.
Is STA an Existing Use of Right?
The critical question, is STA an Existing Use RIGHT?
Yes. As above and according to legal advice, STA is a legitimate Existing Use Right.
Additional supportive information to that point.
As Mr Manning explains:
The Planning and Environment Court recently considered permanent and temporary accommodation:
[33] First, the definition of detached house does not preclude use for visitor accommodation. It states:
“Detached house means the use of premises for a single dwelling unit which comprises the whole of the building on one lot. The term includes uses and works incidental to and associated with the detached house. The term includes the temporary use as a display home or removal home. The use is not divided further.”
[34] The town planners agree that the proposed development will not prevent the subject houses from being used for either permanent occupation or visitor accommodation or a combination of both. As such, visitor accommodation will not inevitably be “lost”. Instead, there will be flexibility that will permit the existing houses to be used for permanent occupation as an alternative to visitor accommodation.
The planning scheme definition of multiple housing explicitly permits both permanent or semi-permanent residents.
Disclaimer
Need more information?
Please refer to an information booklet from Planning Law Specialist Lester Manning at P&E Law.
It is important to understand that the history of use, planning scheme changes and any development approvals can affect the general outcome indicated above. Appropriate research needs to be undertaken to determine what existing use rights are protected. Where existing use rights are protected the premises may be used for the purpose of the existing use rights.
Changes to the way in which the premises are operated may cause the loss of existing use rights. By way of example:
1. A owned a “Detached House” and holiday let it;
2. B purchased the “Detached House” before 31 July 2020 and moved into it on a permanent basis; and 3. C purchased from B after 31 July 2020. The Council could maintain that there is no existing use right to short-term let as the right was abandoned.
By way of example:
1. A owned a “Detached House” and holiday let it and also permanently resided in it over a number of years;
2. Since March 2020 there was no short-term letting; and
3. A had intended to travel extensively through Europe and short-term let to cover the travel costs, but Covid stopped that.
Council may argue that there is only long-term use because of the time between short-term letting has lead to the abandonment of the existing use rights. In the two examples above the Council would likely succeed in the first and would less likely succeed in the second in maintaining the existing use rights have been abandoned. Every matter will be looked at on its individual circumstances and proof of intention and actions supporting that intention should be retained. Be careful not to unwittingly abandon existing use rights.
Please see the complete legal factsheet provided by P&E Law for further information regarding this matter.
View e-booklet HERE
Have your templated Statement Documents emailed to you:
These documents include:
Council form to make an application to have an Existing Use Right to operate a full time holiday let property formally recognised ($631 fee to Council).
Legal Statement prepared by P&E Law regarding an Existing Use Right (to be maintained by the owner as evidence).