Part 2 – Local Council Regulations
This is the final part of a two-part article on the issue of the regulation of Airbnb listings. Part one of this article can be found here.
Irrespective of whether or not a lot is in a community titles scheme, local council regulations will apply.
As local laws and city plans continue to change and update, a host can rely on the rules that were in force at the time they initiated their listing, even if they are now superseded. The Gold Coast City Plan Version 4 (3 July 2017) (the ‘City Plan’) notes at 1.1 that the objective is to set “out the city of Gold Coast’s intention for the future development in the City Plan area…” Following this, the City Plan does not have retrospective power. This suggestion is substantiated by the presence of “existing lawful use rights”, which are explained at section 260 of the Planning Act 2016 (Qld). In the context of short-term residential letting, existing lawful use rights ensure that hosts; who obtained the relevant Council and State approvals at the time they initiated their operations, will continue to be protected under the Planning Act 2016 (Qld) even when the planning instruments periodically change and their property would no longer be permitted to engage in same.
In other words, Airbnb hosts who obtained a material change of use and their rental property licence (free under Gold Coast Local Law) at a time when this was permitted by their local applicable planning scheme/city plan are still protected by those instruments, despite those instruments now being superseded. For example, if an Airbnb host started letting their unit in 2012 – at which time the local planning scheme allowed for this – and the host continues to let the unit presently (despite the scheme now prohibiting this practice), the host in theory is permitted to continue under the rule of existing lawful use rights.
For those new to the world of Airbnb and eager to join the sharing economy on the Gold Coast, the circumstances differ. Without existing use rights, hosts are under the control of the City Plan. If they reside in a zone that does not permit short term accommodation (such as low density or medium density residential), they will need to apply to the Gold Coast City Council for a Material Change of Use development approval (MCU). With no guarantee of success, and an undesirable price tag in excess of $8,000.00, the prospect of renting out your extra bedroom now seems a lot more complicated than it used to.
There is certainly no one-size-fits-all answer for Gold Coast Airbnb hosts. Unless a host is covered by existing use rights, or is in a zone which permits short term letting (such as high density residential), they will need to apply for a MCU in addition to a rental property licence. Whilst the rental property licence itself is free, another important consideration for hosts is how this licence affects council rates. In essence, the minimum general council rates imposed for lots engaged in short term accommodation activities are significantly more than the rates imposed on a principal residence.
The local hosting community is unhappy with the Gold Coast City Council’s decision to enforce development application obligations for Airbnb hosts in the area. Airbnb National Manager Sam McDonagh has condemned the move, and in 2016, it was reported that two Gold Coast hosts received show cause notices from the Council after being found letting their properties without the appropriate permits. Whilst at this stage, the figures seem low, hosting an Airbnb without first obtaining the applicable planning approvals opens Gold Coast hosts up to a variety of risks and penalties down the track.
This article is intended to provide a brief overview of a developing area of the law. For legal advice tailored to your individual circumstances and concerns, please contact ABKJ Lawyers on 07 5532 3199.