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CITE

Unreported Judgment

Jephcott v Noosa Shire Council[2024] QPEC 5Cash DCJ
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Jephcott v Noosa Shire Council[2024] QPEC 5

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Jephcott & Anor v Noosa Shire Council [2024] QPEC 5
PARTIES:	PETER JEPHCOTT and DEBORAH JEPHCOTT (appellants) V NOOSA SHIRE COUNCIL (respondent)
FILE NO/S:	129/2022
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
DELIVERED ON:	15 February 2024
DELIVERED AT:	Maroochydore
HEARING DATE:	19 October 2023
JUDGE:	Cash DCJ
ORDERS:	The appeal is dismissed and the decision of the respondent is confirmed.
CATCHWORDS:	ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST REFUSAL – local law – subordinate local law – where the appellants own land at Peregian Beach improved by a single-storey dwelling house – where the appellants wish to use the premises for ‘the operation of short stay letting’ – where such use is subject to approval by the respondent council – where the respondent council refused approval – where the dwelling house was constructed prior to the adoption by the respondent of the Noosa Plan 2020 – whether the premises had the benefit of an existing use right for the operation of short stay letting – whether the operation of short stay letting is otherwise permitted by the Noosa Plan 2020
LEGISLATION:	Local Government Act 2009 (Qld), s 26 Noosa Shire Council Local Law No. 1 (Administration) 2015, s 5, s 6, s 9, sch 1 Noosa Shire Council Subordinate Local Law No. 1 (Administration) 2015, sch 21A Planning Act 2016 (Qld), s 229, sch 1 Planning and Environment Court Act 2016 (Qld), s 43, s 45(1)(b), s 260
CASES:	Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91, [23] – [24] Shire of Perth v O'Keefe (1964) 110 CLR 529, 535 Yu v Brisbane City Council [2006] QPELR 102, [16]
APPEARANCES:	P Jephcott appeared in person for the appellants M J Batty with J E Bowness for the respondent
SOLICITORS:	McCullough Robertson for the respondent

Introduction

[1]
The appellants own premises at Peregian Beach consisting of land improved by a single storey dwelling house.^[1] The appellants want to make the premises available for short-term accommodation on a commercial basis. In early 2022 the respondent caused a new local law to be enacted, pursuant to which the appellants required the respondent’s approval for such a use. The appellants applied for approval, which the respondent refused. The appellants have appealed against this refusal. The determinative question to be answered in the appeal is whether, at the time the Noosa Plan 2020 commenced, there was an existing use of the premises for ‘the operation of short stay letting’ which was preserved by operation of legislation.

[2]
For the reasons that follow, there was no existing use of the premises for the operation of short stay letting when the Noosa Plan 2020 commenced. There was no existing use to be preserved and the planning scheme does not otherwise permit such a use as of right. It follows that the appeal must be dismissed and the decision of the respondent to refuse approval must be confirmed.

The Noosa local law

[3]
Recently, the respondent has attempted to regulate short stay letting through the enactment of Noosa Shore Council Local Law No 1 (Administration) 2015 (‘the local law’). The Local Government Act 2009 (Qld), by section 28, gives local governments the power to make and enforce local laws. This also includes the power to make a subordinate local law, which is concerned with ‘the detailed implementation of the broader principles contained in the local law’.^[2] It was pursuant to this power that the local law was enacted.

[4]
The local law defines the ‘operation of short stay letting’ as a ‘prescribed activity’. The definition of ‘short stay letting’ is found in the dictionary in schedule 1. Subject to some exclusions that are not presently relevant, it means ‘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’. Section 5(a) then provides that a ‘prescribed activity’ means an activity listed in part 1 of schedule 2. This includes the ‘operation of short stay letting or home hosted accommodation’, which 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’. It follows that the letting of premises to someone other than the owner, on a commercial basis, for a period of less than three months is the ‘operation of short stay letting’ and is a ‘prescribed activity’.

[5]
Section 6 of the local law makes it an offence to undertake a prescribed activity without a current approval granted by the respondent. A current approval ‘means an approval that is in force and has not been suspended at the time the prescribed activity is being undertaken.’ The local law then provides the mechanism by which an approval might be sought and granted. Section 9 should be set out in full, as it prescribes the only basis on which approval might be given.

9
Local government’s discretion in granting approvals

(1)
The local government may grant an approval for an applicant to undertake a prescribed activity only if it is satisfied that—

(a)
if the prescribed activity requires a separate approval under an Act, a law of the Commonwealth or the local government’s planning scheme—the separate approval has been granted; and

(b)
the proposed operation and management of the prescribed activity is adequate to protect public health, safety and amenity and prevent environmental harm; and

(d)
the proposed operation and management of the prescribed activity would be consistent with any additional criteria prescribed for the activity under a subordinate local law for this paragraph; and

(e)
if the application relates to trust land—the grant of the approval would be consistent with the terms and conditions of the trust; and

(f)
if the application relates to a prescribed activity mentioned in section 5(b)—the grant of the approval would be consistent with any requirements or criteria specified in the relevant Local Government Act in relation to the approval.

Example for paragraph (a)—

An application for commercial use of a local government controlled area that is held in trust by the local government under the Land Act 1994 may require registration of a trustee lease or issue of a trustee permit prior to the approval being granted for commercial use of the area.

(2)
The local government may, by written notice to the applicant—

(a)
grant the approval unconditionally; or

(b)
grant the approval subject to conditions determined in accordance with section 10; or

(3)
However, the local government’s powers in deciding the application are subject to the provisions of any relevant local law.

[6]
Additional criteria for approval are prescribed under subordinate legislation, pursuant to section 9(1)(d) of the local law. They are found in section 4 of schedule 21A of the Noosa Shire Council Subordinate Local Law No. 1 (Administration) 2015 (‘the subordinate law’).^[3] The terms of section 4 of the schedule are set out below:

4
Additional criteria for the granting of approval

The local government may only grant an approval (or renew an approval) for the operation of short stay letting or home hosted accommodation at premises if it is satisfied the proposed operation and management of the activity would be consistent with each of the following additional criteria—

(a)
the applicant is the owner of the premises, or is authorised in writing by the owner of the premises, used for the short stay letting or home hosted accommodation;

(b)
the operation of the short stay letting or home hosted accommodation can be lawfully conducted on the premises;

(c)
the matters which are the subject of the conditions specified in section 6 of this schedule which are relevant to the operation of the short stay letting or home hosted accommodation at the premises can be adequately addressed by the imposition of conditions;

(d)
the applicant’s history in respect of the operation of short stay letting or home hosted accommodation at the premises or other premises and any suspensions or cancellations pursuant to section 17 or 19 of the authorising local law;

(e)
the operation of the short stay letting or home hosted accommodation must comply with the following criteria—

(i)
the operation of the short stay letting or home hosted accommodation must comply with—

(A)
any relevant development approval; or

(B)
accepted development or accepted development subject to the requirement provisions of the local government’s planning scheme; or

(C)
for premises with lawful use rights — the local government’s planning scheme which applied at the date the lawful use commenced;

(ii)
the operation of the short stay letting or home hosted accommodation at the premises must not detrimentally affect the residential amenity (including, but not limited to, noise, overlooking or light spill) enjoyed by residents adjoining, or in the vicinity of, the premises;

(iii)
adequate on-site vehicular parking facilities must be provided at the premises;

(f)
if the application is for an approval to operate short stay letting at the premises — the applicant must provide to the local government up to date details of a person (contact person) (which may include the name and contact details of an individual, letting agent, property manager, security firm or the like) being a person who—

(i)
is available 24 hours a day, 7 days a week; and

(ii)
resides, or has a place of business, within a 20 kilometre radius of the premises; and

(iii)
will be responsible for the supervision and management of the premises, including addressing complaints about the use of the premises for short stay letting and visitor queries.

[7]
The combined effect of section 9 of the local law and section 4 of schedule 21A of the subordinate law is that an application may only be approved if all the listed criteria are satisfied. These criteria include section 4(b) of schedule 21A, pursuant to which it must be shown that the operation of short stay letting can be lawfully conducted on the premises. The premises do not have the benefit of a current development approval expressly authorising use for the operation of short stay accommodation. Instead, the appellants contend that the premises have the benefit of an existing lawful use right preserved by section 260 of the Planning Act 2016 (Qld) (‘the Planning Act’). Whether or not that is so depends on the effect of section 260 and the evidence as to what use was being made of the premises at the time of the commencement of the Noosa Plan 2020. Before considering this question, something should be said of the nature of this appeal.

The statutory basis for the appeal

[8]
Section 229 of the Planning Act sets out the circumstances in which an appeal lies to the Planning and Environment Court. This calls up schedule 1 to the Planning Act which provides, in table 2 at item 6, that ‘[a]n appeal may be made against a decision of a local government, or conditions applied, under a local law about … the use of premises…’ This is such an appeal. As the Planning Act is the enabling Act for the appeal, the appeal is a ‘planning act appeal’ as that term is defined in the Planning and Environment Court Act 2016 (Qld).^[4] The result is that the appeal is by way of a hearing anew,^[5] and it is for the appellants to establish that the appeal should be upheld.^[6] This is an important consideration in the present appeal. It is for the appellants to point to evidence which establishes the premises had an existing lawful use right preserved by section 260 of the Planning Act, or that the premises may otherwise be lawfully used for the operation of short stay letting.

Existing lawful uses

[9]
Section 260 of the Planning Act is an important provision. Its apparent purpose is to promote certainty and protect those who own land from the effect of changes to planning schemes on existing uses of premises. The section provides:

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

[10]
It may be seen from this text that section 260 does not protect all potential or theoretical uses. The provision is aimed at protecting lawful uses which are actually being undertaken ‘immediately before’ a planning instrument changed. The use which the appellants wish to make of the premises is a use defined in the local law as the operation of short stay letting. It is the provision, or making available, of premises for use by one or more persons, other than the owner of the premises, for less than 3 consecutive months, on a commercial basis. To engage section 260 of the Planning Act, it is necessary for the appellants to demonstrate that such a use was lawfully occurring at the premises ‘immediately before’ the planning instrument – being the Noosa Plan 2020 – commenced.

The appellants’ contention as to an existing lawful use

[11]
As identified in the appellants’ reasons for approval, they contend that section 260 of the Planning Act preserved an existing use right, which has not been abandoned, and which ‘permit[s] a mix of short term accommodation and long term accommodation or a combination of both to occur from time to tome at the premises’. It must immediately be noted that the use of premises for short-term or long-term accommodation is not equivalent to ‘the provision, or making available, on a commercial basis, of short stay letting’. It is the latter for which the appellants require approval pursuant to the local law. The appellants advanced an argument that in determining the use to which the premises is to be put for the purpose of section 260, a broad approach is appropriate. The effect of the appellants’ argument was that the premises were being lawfully used as a ‘dwelling house’ at the time of the commencement of the Noosa Plan 2020, and that the proposed use is a continuation of use as a dwelling house. They say that because there was no temporal limitation on the use of premises as a dwelling house it was and remains lawful for the appellants to use the premises for short-term accommodation. The appellants contended that this use right was preserved by section 260 of the Planning Act, which permits them to lease the premises on a short-term basis, including by the operation of short stay letting, despite the provisions of the local law.

[12]
I do not accept the appellants’ contention. Even if it were assumed that the premises enjoy a preserved right as a dwelling-house to permit persons to stay on a short-term basis, that would be insufficient. The proper characterisation of the use of land is to be determined by asking, ‘what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date’.^[7] A common sense approach is called for,^[8] the application of which must mean that the use proposed by the appellants cannot be properly characterised only by such a broad ‘umbrella’ terms as use as a dwelling house or short-term accommodation. Common sense requires that a more precise definition of the use must be found. The use proposed by the appellants is not just use of the premises as a dwelling house, or even short-term accommodation. It is the commercial letting of the premises on a short-term basis. That, according to the definition in the local law, is the operation of ‘short stay letting’. This is the use which the appellants must show existed and was preserved by section 260 of the Planning Act, or is otherwise lawful at the premises, in order to satisfy the criteria in the local law and subordinate local law.

[13]
The appellants frankly conceded that they had not used the premises for short stay accommodation on a commercial basis, the short-term usage being limited to making the premises available for use by family and friends.^[9] This was a proper concession to make having regard to the affidavit evidence filed by the appellants. This evidence was accurately summarised by the respondent in their written submissions in the following terms:

the subject dwelling house was built and commenced use in the early 1980s;

the history of the use of the dwelling house between its construction and purchase by the appellants is unknown;

the appellants purchased the premises in 2014 with an existing tenancy lease in place for permanent occupancy, which expired on 25 October 2014 and was not renewed;

post 25 October 2014 the appellants carried out renovations and commenced using the dwelling for personal respite and for family and friends to use as a holiday house;

the arrangements with family and friends were not conducted by an agent or public advertisement, but by private verbal agreements;

there was no “payment” by family and friends, other than that “they shout our family a restaurant meal or alcohol or a gift for the house for letting them use it and to clean the house, remove garbage, wash sheets, replace things used and to be respectful to our neighbours and keep pets under control.”;

the use of the premises for personal respite and family and friends continued until April 2017, when the premises was let for permanent use which occurred via a real estate agent until January 2019; and

from January 2019 and up until 31 July 2020 (when the Noosa Plan 2020 came into effect), the use of the premises reverted back to the personal respite/private holiday house use.

[14]
This evidence provides a simple answer to the appellants’ contention regarding section 260 of the Planning Act. Whatever theoretical or intended use may have been available to the appellants immediately before the Noosa Plan 2020 commenced, they were not using the premises for short stay letting on a commercial basis. Because this use did not exist at the time the Noosa Plan 2020 commenced there was nothing for section 260 of the Planning Act to preserve. It follows that unless the use desired by the appellants is permitted under the Noosa Plan 2020 their appeal must fail. As such, it is necessary to consider the provisions of the Noosa Plan 2020 to determine if that scheme permits the use of the premises for commercial short stay letting.

[15]
Under the Noosa Plan 2020, ‘short-term accommodation’ means the use of premises for providing accommodation of less than three consecutive months to tourists or travellers. The use proposed by the appellants would be short-term accommodation according to this definition. If commenced, it would be a material change of use and would require impact assessment unless the relevant table of assessment states otherwise.^[10] The premises being in a low-density residential zone, the table of assessment provides that such a use would only be accepted development, and therefore not require assessment, if it is:

in the applicant’s principal place of residence;

the letting of only one dwelling on site;

occupied by short term guests on no more that 4 occurrences in any calendar year; and

occupied by short term guests for a total of no more than 60 nights in any calendar year.^[11]

[16]
There is no evidence that the proposed use would comply with these requirements. Indeed, it seems clear that the proposed use by the appellants would fall foul of three of the four requirements. It is not the appellants’ principal place of residence, and the proposed use seems likely to be for more than four occurrences, and more than 60 nights, per calendar year. It follows that the Noosa Plan 2020 does not permit the appellants’ proposed ‘short term accommodation’, and by extension the ‘operation of short stay letting’, without impact assessment and a development permit. Absent such a permit, the appellants’ application for the operation of short stay letting could not be approved.^[12]

Conclusion and orders

[17]
For these reasons, I am not satisfied the appellants have shown their application satisfied the criteria contained in the local law and the subordinate local law. Specifically, the appellants have not shown the premises enjoyed an existing law use right for the operation of short stay letting, preserved by section 260 of the Planning Act.^[13] Nor have they shown that there is no need for a separate approval pursuant to the Noosa Plan 2020.

[18]
It follows that the appeal must be dismissed, and the decision of the respondent confirmed.

Footnotes

[1] Properly described as Lot 2 on Survey Plan 183477.

[2] Local Government Act 2009 (Qld), section 26.

[3] Exhibit 1, pp. 132 to 140.

[4] Planning and Environment Court Act 2016 (Qld), schedule 1.

[5] Ibid, section 43.

[6] Ibid, section 45(1)(b).

[7] Shire of Perth v O'Keefe (1964) 110 CLR 529, 535.

[8] Yu v Brisbane City Council [2006] QPELR 102, [16]; Bassingthwaighte v Roma Town Council & Ors [2010] QPEC 91, [23] – [24].

[9] T.1-11.37-41; T.1-20.15-26.

[10] Noosa Plan 2020, 5.3.2(1)(a).

[11] Noosa Plan 2020, Table 5.5.1. There is a further requirement, not presently relevant, that the development also comply with identified benchmarks.

[12] The local law, section 9(1)(a).

[13] The subordinate local law, section 4(b).

Editorial Notes

Published Case Name:
Jephcott & Anor v Noosa Shire Council
Shortened Case Name:
Jephcott v Noosa Shire Council
MNC:
[2024] QPEC 5
Court:
QPEC
Judge(s):
Cash DCJ
Date:
15 Feb 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Bassingthwaighte v Roma Town Council	[2010] QPEC 91	2 citations Jump To Cite 1 - [2010] QPEC 91 Cite 2 - [2010] QPEC 91
Shire of Perth v OKeefe	View on:JADE(1964) 110 CLR 529	2 citations Jump To Cite 1 - (1964) 110 CLR 529 Cite 2 - (1964) 110 CLR 529
Yu v Brisbane City Council	(2006) QPELR 102	2 citations Jump To Cite 1 - (2006) QPELR 102 Cite 2 - (2006) QPELR 102

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

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Jephcott v Noosa Shire Council[2024] QPEC 5