An increasing number of Gold Coast locals using sharing-economy accommodation giant Airbnb have approached ABKJ Lawyers with concerns regarding their liability under Gold Coast local law. Many of them have approached us following receipt of a Show Cause Notice from the Gold Coast City Council – a document which, in most circumstances – effectively requires them to immediately cease their Airbnb operation or face severe financial penalties (on the basis that the correct planning approvals have not been obtained).
In many cases, the inconvenient truth is that at present, the Gold Coast City Council has indisputable power to prevent ‘unlawful’ Airbnb operations (that is, any Airbnb listing where the operators have not obtained the correct planning approval – which is often a material change of use – the application fee for which is in excess of $8,000), and penalize those who are non-compliant. There are, however, some exceptions to the Council’s power to issue a Show Cause Notice. Under the Gold Coast City Plan, ‘a home-based business can operate from a dwelling where the business is secondary to the residence.’ Following this, the City Plan provides a number of specific development criteria that, if satisfied, create an exemption from planning approval requirements for the operator. In essence, if you satisfy the below criteria, you may be exempt from requiring planning approval for your Airbnb:
- You must live at the property
- You must live within a residential zone
- No impact on the amenity of the area
- Other factors to consider
As explained above, the home-based business exemption will only apply where the business is demonstrably secondary to the residence. In other words, the primary use of the property must be as your residence. As a secondary use, you might list a spare bedroom, for example. In addition to this requirement, the ‘home-based business’ part of the property must not exceed 45m2 in total area.
If you host an Airbnb property which you do not live in – such as a holiday apartment – this exemption will not apply to you, and you must ensure that you have obtained the correct planning approvals or run the risk of being penalized for non-compliance with the local law.
The City Plan outlines various zoning categories under which Gold Coast suburbs and areas are classified. The location of the property must be within one of the residential zones under the City Plan; being low-density residential, medium density residential, or high-density residential (including residential precincts).
You can view an interactive map of the Gold Coast, which provides a zoning overlay (to enable you to ascertain the zoning of any Gold Coast address), here:
Intuitively, a home-based business cannot present any nuisance to the surrounding area in the form of noise, odour or other miscellaneous annoyance to the area. Additionally, there may be no more than one delivery to the property per day. This is likely on the basis that a home-based business is regulated with the intention of preventing disturbances to neighbouring properties. Further, there can be no more than four guests at any one time, and only one motor vehicle (if any) associated with the business.
In addition to exemption from planning approval requirements, keeping your guest limit under 4 people at any one time can also classify you as exempt from requiring a rental accommodation licence from the Council, according to Gold Coast Subordinate Local Law 16.1.
If you do opt to host more than four guests – you will not be exempt from either requirement – planning approval or rental accommodation licence. In addition to the financial commitments of seeking planning approval, rental accommodation licenses can also result in heightened expenses. The licence itself is free; however, to apply you must attach a Certificate of Compliance issued by QLD Fire & Rescue Service, a certificate of classification of the building, and relevant site and floor plans, all of which may incur costs.
Further, holding a rental accommodation licence can noticeably impact the Council rates you are required to pay as a lot owner. As a general example, for the 2017-18 financial year, the minimum general rate for a single unit dwelling which was not rented was calculated at $921.80. In contrast, the minimum general rate for the same financial year for a single unit dwelling rented to itinerants (i.e. used to provide rental accommodation) was $2,239.00. So whilst the rental licence itself may not bear a financial burden, consideration should be given to the ongoing demand for higher Council rates that you may be subject to.
There are a number of overlays specific to certain areas of the Gold Coast that may affect an operator’s eligibility under the City Plan’s home-based business criteria. For an exhaustive list of the criteria, see Part 9.3.11 of the Gold Coast City Plan. Each situation should be approached on a case-by-case basis. Learn more about Airbnb and council regulations in one of our previous articles –
Airbnb & The Law On The Gold Coast. For legal advice tailored to your individual circumstances and concerns, please contact ABKJ Lawyers on 07 5532 3199.