Holiday cancelled: dismissal of appeal against the refusal of a local law permit for short stay letting in Noosa because the relevant approval did not allow for short-term accommodation or a visitor use

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.

Court finds that the 2015 Approval did not authorise short term accommodation

At the outset, the Applicant conceded that if as a matter of construction the 2015 Approval does not authorise the Proposed Use then all of the relevant criteria in section 4 of schedule 21A of the Subordinate Local Law are not satisfied and it follows that the appeal ought to be dismissed (at [10]).

The Court considered in its determination of the construction of the 2015 Approval the relevant provisions of the Noosa Plan 2006 (as at 16 September 2013) (Planning Scheme), being the planning scheme in force at the time the 2015 Approval was granted, as well as other relevant planning instruments which were incorporated expressly or by implication in the terms of the 2015 Approval (at [19]).

The Court found that whilst on its face the 2015 Approval did not contain a temporal restriction on the use of the Premises which might confine the permitted accommodation period, when read in the context of the Planning Scheme which the 2015 Approval expressly referenced, a temporal element may be implied (at [26]).

The Court pointed to the clear distinction in the Planning Scheme between permanent and semi-permanent occupation in the definition of use and use classes contained in section 2.11.5 of the Planning Scheme. The Court stated that semi-permanent occupation is associated with the multiple housing use class of residential uses in contrast to short-term accommodation which is associated with the visitor accommodation use class (at [21]).

In this context the Court found that the 2015 Approval, being the multiple housing use class, did not involve an approval for short-term accommodation (at [21]). The Court further found that planning schemes are to be read sensibly, and for the Planning Scheme, short-term accommodation and short stay letting must be analogues (at [23]).

The Court also considered the Eastern Beaches Locality Plan under which multiple housing is code assessable and visitor accommodation is impact assessable, and found that this further supported the construction that the Planning Scheme intended for the definitions of uses and use classes to convey meaning in the way the Court had concluded (at [21]).

The Court dismissed the Applicant's reliance upon cases in which the Court had previously found that extraneous considerations should not be imported to inform an explicit definition within a planning scheme (see [24] to [25]).

The Court distinguished the present case from those relied on by the Applicant because here there was a clear intention for the meaning of terms to be informed, particularly in relation to any possible temporal limitations, by extraneous considerations namely the Planning Scheme. In the cases relied on by the Applicant, however, the terms critical to the decisions were clearly defined and the outcome turned upon their meaning (see [26] to [28]).

The Court concluded that the relevant provisions of the Planning Scheme ought to be construed "…according to ordinary principles of statutory construction and in the context of the [2015 Approval]" (at [28]).

Conclusion

The Court found that the 2015 Approval did not authorise the operation of short stay accommodation and thus upheld the Council's decision to refuse the Application.