1st NCAT case for AirBnB by-laws under SSMA2015 ?

In my opinion the assessment of the NCAT decision was a bit harsh.

NCAT can only decide matters that deal with issues directly arising from the SSMA2015 such as: by-laws; noise; nuisance etc.

If the Act does not allow by-laws to ban a certain type of dealings of a Lot then NCAT can only work within the bounds of the legislation. It is not the duty of NCAT to change legislation. By-laws must be consistent with the Act. It is not within the power of the OC, under the current legislation, to make their own laws banning short term letting.

NCAT does not have the jurisdiction to decide matters that deal with building classifications and regulations; zoning regulations; fire regulations etc. NB: It appears that these areas of the law were not raised by the OC in their submission. Had they been raised then NCAT could justifiably have recommended that these issues be more appropriately dealt with under the legislation that deals specifically with those areas of the law.

Even so, an OC does not have the authority to enforce a council requirement. All it can do is  complain to council about the lack of compliance.

Although the Meuller article referenced a WA Court of Appeal decision where a by-law prohibiting short term letting was upheld, the article made no reference to the many Qld decisions where by-laws prohibiting short term letting have not been upheld. All three states appear to have similar legislative provisions. 

There are jurisdictions, other than NCAT, where short term letting restrictions may have a better chance of success for those seeking to control it and/or ban it.

No sooner had I posted the last time than the actual by-law that was adopted and then overturned appeared in my inbox.

It makes interesting reading and, in my non-legal opinion, tries to cover too many bases and in so doing leaves itself wide open to being overturned in this way.

What do you reckon?

Special By-law- Prohibiting Illegal Uses (Including Short Term lettings)

(1) An owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law or that requires approval or authorisation of an authority or under any law without that approval or authorization.

(2) An owner or occupier of a lot must ensure that the lot is only used as a dwelling or domicile.

(3) An owner or occupier of a lot must not engage in any commercial activity that involves the lot being used by its occupants on a short-term basis for less than thirty (30) days.

(4) An owner or occupier of a lot must ensure that the lot is not used for any commercial purpose that involves the lot being used by its occupants on a short-term basis for less than thirty (30) days.

(5) An owner of occupier of a lot must ensure that the lot is not advertised or promoted for any use whichis prohibited by this by-law.

(6) An owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot.

The short answer to the short term letting issue  – It lies with strengthening the local council regulations and zoning laws, and the enforcement of the regulations by the council itself. Councils could and/or should employ more people to enforce their own rules. 

The long answer to JT’s question about what we reckon about the by-law that was recently deemed to be invalid – The by-law was doomed from the get go.

One of the things that annoys me most about by-laws is that many are superfluous. Too many superfluous by-laws create a scenario where people avoid reading them. They end up being an expensive exercise that only lawyers benefit from.

If an issue is already covered by another piece of legislation either in the SSMA2015 or another Act then why waste time, energy, and money repeating it in a by-law?

The “invalid” by-law’s Items 1 and 6 are already covered in the strata Act so why re-state them?

In Item 2 what does “dwelling” or “domicile” mean? These terms are not defined in the strata Act.  If there is no definition in the Act then the ordinary dictionary meaning should be used.

A “dwelling” is defined as a structure where people live or sleep. The mere fact that people live or sleep in the structure for 3 months or 3 days does not prevent the structure from being a dwelling. The term “dwelling” in an Act is used to create a distinction between a structure that has bedrooms, kitchens and bathrooms (i.e. can be lived in) rather than a structure that is not used to live (i.e. does not have bedrooms – but it may or may not have a kitchenette and a bathroom). The distinction seems to be in the availability of a place to sleep.

These structures are dwellings: a house, an apartment.

These structures are not dwellings: an office, a garage, a shed, a factory.

The by-law is rather confused as on one hand it states that the strata dwelling must only be a “domicile” (i.e. be a permanent place of abode) but at the same time it permits occupancies that are not permanent i.e. occupancies of greater than 30 days are permitted.

A “domicile” is generally defined as a permanent home in taxation law. Incidentally, a domicile for tax purposes is usually a residence that is used by the person for longer than 183 days of the year.  This could mean that the dwelling could be tenanted for the remainder of the year and still be classified as a “domicile”.

Items 3 and 4 refer to “Commercial activity” and “commercial purposes”. Whether an apartment is let for 3 days or 3 months or 3 years does not mean that it is being used for “commercial activity” or “commercial purposes”.

Renting out an apartment is clearly permitted under strata law.  A tenancy of less than 3 months does not make it any more “commercial” than a tenancy of 3 months and 1 day.  It could be argued that longer tenancies are more “commercial” as the longer the tenancy the greater the rent that is paid.  

Instead, “commercial purposes” usually means that owners are not permitted to use their apartments as shops or restaurants or openly trade from them to the public e.g. using an apartment as a massage parlour or a hair salon would be “commercial purposes”.

Even if the owner of the unit was running a commercial enterprise involving the letting out of the unit, the people holidaying in the unit would be putting the unit to a residential rather than a commercial or industrial use. 

JT said: Strata laws already state that you have to abide by the law and that includes zoning.  My building in Sydney, for instance, has zoning that is very specific about the minimum period for lets (three months).

If a law already exists to ban letting that is less than 3 months then the issue is not with the law. The issue is with the enforcement of the law. The problem lies with the Sydney council.

Mounting a class action against the council would definitely put the =^..^= among the (‘v’)

@pielover said:
If the answer to this question too is yes, than, in my opinion, the occupation of the premises is consistent with that of a dwelling.  

I’m sorry – what’s your point? The case you highlighted was one that established that a house used exclusively for holiday rentals was not technically a dwelling.

OK.  But the point of all this is that we know planning laws and zoning are being breached but the only people who can do anything about it – the councils – are doing nothing and the only people who want to do something about it – strata owners – are being prevented from doing so.

That’s it. Whatever legal definitions you come up with, our hands are tied while councils’ hand have their big fat bums on theirs.

This issue is such a ‘hot potato’ that all those who should be responsible for it are ducking for cover and trying to place the responsibility for decision making on some other authority. 

Only the lower courts and tribunals have ever dealt with the short term letting issue (including the defining of terms) and even then there has not been much consistency. 

We are all going in circles here, and in doing so we are tying ourselves in knots.

It is apparent that By-laws can’t fix the problem. 

As it stands now it is councils who are responsible for making the zoning laws and enforcing the zoning laws. They are not doing so. Why not?