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
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).