Noosa Town Plan Changes
Short Term Accommodation (holiday homes) to be made inconsistent
in Low-Density Residential Zones
This webpage provides information regarding Noosa Town Plan changes regarding Short Term Accommodation (STA), how property owners may be affected, what an owner’s Existing Use Rights are, and independent legal advice as to what an owner may choose to do in relation to maintaining an Existing Use Right.
The information is presented as a community information service and does not represent the legal opinion of Aspire Property Management, the NSTAA (Noosa Short Term Accommodation Association) or its members. Aspire Property Management has obtained this independent advice on the basis of providing assistance to property owners that may be affected. It cannot take responsibility or be held liable for any action that an owner may take as a result of this advice.
On 16/7/20 Noosa Council voted to amend the Noosa Town Plan to make future Short-Term Accommodation (STA) developments an Inconsistent Use in the Low-Density Residential Zone. This applies to most houses across the whole of Noosa Shire, effective 31 July 2020.
This means that under this plan, Council proposes that any affected property owner, may lose their future right of choice to holiday let their house, on a full-time basis, if they are not currently doing so.
This change has the potential to significantly change your right to choose how your property may be used. It may affect the capital value of your house and possibly affect your ability to sell your house in the future.
What can property owners do?
Who is affected and why?
Every owner of a residential property in the Low-Density Residential Zone, not currently operating a STA, is affected.
This includes owners that may reside in their own home, or rent to permanent tenants, or that may not currently even be interested in STA.
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:
- Your house may not sell because houses that maintain the option to STA are the ones in demand.
- Your house may sell for a lower price, because you have lost the valuable option of STA.
- 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.
Why has Council done this?
Council has done this in response to managing a perceived issue with respect to Party Houses in Noosa and to support housing affordability.
Unfortunately, in attempting to achieve these goals, this onerous condition affecting individual right of choice has now been imposed on thousands of Noosa property owners.
Many citizens have expressed concern that Party Houses could be dealt with in other ways. In fact, there is already provision under the Planning Act for councils in Queensland to deal with Party Houses.
Similarly, many have questioned whether the Town Plan amendment may adversely affect housing availability and affordability in the Medium and High Density Zones as STA investors are funnelled exclusively into purchasing in these zones.
No economic modelling
One of the concerns expressed by community members is that no economic modelling has been done by Council in relation to what the proposed changes might mean.
Council is proposing significant changes that may impact the tourism market in Noosa and individual property values.
Unfortunately, no studies have been done or information made available as to what these impacts might be.
Understanding your Existing Use Right
Aspire Property Management and the Noosa Short Term Accommodation Association have prepared this information to help Noosa property owners understand what changes to the Noosa Town Plan mean for them.
The information is presented as a community information service and does not represent the legal opinion of Aspire Property Management, the NSTAA (Noosa Short Term Accommodation Association) or its members.
Rather, the information relays what the Council has proposed, and how Council intends the changes to work.
The information also contains some independent, professional legal advice that owners may wish to consider.
What happens if you already operate STA or are in another zone?
If you already operate an STA, you can continue to do so as an Existing Use Right.
New STA properties are also proposed to be allowed in other zones, subject to a development application.
Council is also suggesting that if you are a Noosa resident and want to go away for a short while and rent your home as STA, there is provision to do that. The rule is this can be done over 4 occasions totalling no more than 60 days over a 12 month period
More information has been requested from council and will be detailed on this page when it is made available.
Owners can apply under the old scheme
Council says if a property in the impacted zone is not already used for STA, an owner may apply to be assessed for that use, under the old planning scheme.
Council advises that this application window is available for 12 months from implementation of the Plan, subject to an application fee of $1380.
The application may be approved, or not, at Council discretion. We understand the application fee is payable regardless of the outcome.
What is 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) accommodation (STA) that is considered an ongoing Existing Use Right (EUR) under the Plan.
If this is not the case, the following principles apply according to P&E Law.
- If STA has been done at the property 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 have an Existing Use Right.
You can submit the P&E Law template letter to Council, provided below. You should not have to make an application under the superseded planning scheme and you should not have to pay an application fee to Council.
You can complete a P&E Law Statement provided below, to be filed as per the recommended process.
* Note Council may consider abandonment which may include the period of time since you have used the property for STA.
- If a property has not been used for STA in the past and you want to maintain that right. You can apply under the superseded planning scheme for a period of 12 months from the new scheme.
Council has the ability to decide the application under the superseded planning scheme. The application is however at Council discretion.
It may or may not therefore be approved. If an application is made and it is not approved, you may be eligible for compensation and may consider seeking legal opinion regarding that.
The Special Council meeting on the town plan indicated that the cost of the application would be $1380.
- If a property has been used for STA and the owner has no evidence of that, the owner may still choose to make the application under the superseded plan.
What was Council’s legal advice?
This is a big change that has left many owners asking what it means for them and their future right of choice over their property.
One of the issues is that the Council has not to date made available, the legal opinion on which the Council decision has been based.
In effect, community is just being asked to accept that Council is correct, and that it can remove owners’ rights to decide what they may do with their property.
To help clarify whether this is the actual case, we have obtained independent, legal opinion from Planning Law Specialist, Mr Lestar Manning, P&E Law.
Independent legal opinion
Mr Manning 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 is for an interchangeable ability to use accommodation for permanent and short-term residential living.
Under the current Noosa Plan 2006, which is still in place, a detached house can interchangeably be used for either permanent residential living or short-term holiday letting.
That position was not explained during the advertising of the draft planning scheme. Numerous people were advised to the contrary.
However, the misinformation continues which requires a “consistent” use for short-term accommodation.
What is the legal advice to owners?
Mr Manning advises owners to write to the Council to advise that they wish to maintain their Existing Use Right.
He has developed two templated documents, intended to work together, that affected owners may wish to access for this purpose.
The first is a statement to Council that confirms the owner intends to continue to use this property as a Detached house as defined under the Superseded planning scheme for a combination of both permanent and short-term accommodation at the owner’s convenience.
The second statement is to be made, witnessed and kept in your records where it can be accessed if the event occurs that Council alleges you are acting in breach of the planning scheme.
The purpose of this statement is to identify relevant facts and circumstances that support existing use rights for the use of your premises for permanent and short-term accommodation.
What are your options according to independent legal advice?
Download your templated Statement Documents
Why have we provided this advice?
The professional STA 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 as without that we cannot accommodate tourism and hospitality workers close to their places of employment. This is vital to our businesses and our local economy.
We are concerned this Change to the Town Plan is impinging on a basic democratic freedom of choice and may have un-intended negative consequences on housing affordability.
We also believe that Party Houses can be expeditiously dealt with in an efficient and professional manner. In fact, as above, Council already has access to delegated authority to deal with party houses under the Planning Act - it has just never done so.
We believe that in a free democracy such as Australia, these matters can, and must, be dealt with in ways that don’t remove individual freedoms and individual right of choice.
Did the State Government approve removal of an owner’s Existing Use Rights to STA?
No, it did not.
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 STA.
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.
Here is what the State has had to say in relation to the matter of 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 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:
- 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 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)
So, what does that Planning Act 2016 actually say?
You can have a look for yourself here
It says that Existing Uses and Rights are protected.
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 Right?
So it seems the critical question, is STA an Existing Use RIGHT?
As above and according to legal advice, STA is a legitimate Existing Use Right.
Here is additional supportive information to that point.
As Mr Manning explains the Planning and Environment Court recently considered permanent and temporary accommodation:
 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.”
 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.