Airbnb Stayz - Lawful Land Use or Unlawful Activity?

Airbnb Stayz – Lawful Land Use or Unlawful Activity?

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  • Posted by: Phill Whyte

Airbnb and Identified Demand

The Commonwealth Games has come and gone and while the Gold Coast City Council may have been supportive of all forms of accommodation being provided leading up to the Games’ promise of an “influx of tourists” of more than 600,000 visitors, that moment has past. The Games may have been a great promotion of the Gold Coast as a whole in terms of media exposure across the Commonwealth, however the pre-games “promise of an economic windfall” was not evident for all business sectors. Accommodation providers in particular did not reap the promised rewards with many hotels only reaching 71% capacity for the majority of the games and peaking at 81% according to Gold Coast Tourism chief, Martin Winter.

Since then, Council have come out swinging in support of the hotel industry as one of the Gold Coast’s pillar industries and one of the region’s largest employers with many Airbnb operators now receiving ‘Show Cause Notices’ from Council advising them to, “cease using the premises as an unlawful use and remove all materials and advertisements associated with the unlawful use” and to “restore the premises to comply with the City Plan”.

The majority of short term accommodation operators (Airbnb and Stayz) may have started off renting their property out for some extra pocket money however with the sectors continued growth, this additional cashflow is becoming integral in maintaining the operators’ lifestyle. It stands to reason then to challenge Council’s position rather than simply shutting up shop. While it is unlikely that every dwelling operating an Airbnb, Stayz or other short term holiday provider will be supported by Council, particularly given the need to address key criteria in the City Plan such as ensuring the development, “maintains the reasonable amenity expectations of nearby residents, having regard to local character, built form and residential amenity in terms of noise, parking and other associated impacts”. Some are perfectly suited.

On several occasions in various areas across Queensland, City Plan Planning has been able to provide landowners confirmation that their Airbnb business does not require a formal application to be lodged with their Council saving them thousands of dollars so it is recommended that if in doubt, contact us on 1300 4 CITY PLAN (1300 24 897) or by clicking here.

Airbnb and Body Corporates

In the instance where a development application is required for an apartment, one of the hardest obstacles to overcome is the provision landowner’s consent for the land use which includes the need to provide the body corporate’s consent to enable an application to be ‘properly made’. Depending on the attitude of the body corporate, its not uncommon for body corporates to try and stifle or even prevent the application being made by refusing to provide their consent to an application being submitted. This prevents Council even considering the proposal. While the body corporate’s focus should be limited to the management of the common property and ensuring the ongoing enjoyment and safety of residents’ amenity sometimes they can try to extend these powers. As referenced in section 180 (3) of the Body Corporate and Community Management Act 1997 (BCCM Act), body corporates can prevent the lodgement of a properly made application, yet they are unable to introduce bylaws that, ‘restrict the type of residential use’ occurring within the dwelling. Click here for the relevant section of the BCCM Act as it applies to Queensland body corporates.

A Dynamic Environment

In short, while there are many arguments against the use of “Airbnb” type Short term accommodation land uses being established in residential areas, so too are there many supportive arguments justifying their endorsement. The point is, Airbnb type approvals are playing in a highly dynamic environment. This was played out in NSW recently with the government revising its policy around home sharing to include an 180-night cap on the number of days a property can be rented in Sydney. Councils outside of Sydney will be able to impose their own cap, however, it cannot be lower than 180 days. For more information on these changes in NSW, click here to read more.

So if renting your home out in a short term capacity appeals to you, I suggest that getting in now before you’re locked out in the cold.

Contact us for more information by clicking here.



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