Class 2 dilemma goes on
Most readers of this article will have read reports of the recent decision of the Supreme Court of Victoria regarding the ability to use class 2 buildings (like most holiday and short term apartment buildings in Brisbane and the east coast of Australia) for short term and holiday accommodation.
The industry had expected the decision to overcome once and for all the uncertainty generated by the former Queensland state government’s discussion paper on the issue. Unfortunately the issue is still not fully resolved with the Melbourne City Council appealing to the Victorian Court of Appeal against the Supreme Court’s decision.
The Supreme Court had ruled in favour of an offsite property manager and overturned a decision of the Victorian Building Appeals Board. The board had ruled that the use for short term accommodation of apartments in a class 2 building contravened the Building Act and the Building Code of Australia. The primary reason given for that was that reference in the class 2 definition in the BCA to “dwelling” did not extend to short term residential usage. Some apartment owners in the building at Docklands in Melbourne became parties to the appeal, also arguing that short term letting was unlawful.
In handing down its decision, the Supreme Court ruled:
• The board misconstrued the BCA when interpreting the word “dwelling” as excluding short term residential usage;
• The concept of dwelling encompasses short term holiday accommodation;
• There is no rational basis for limiting the word dwelling to just long term residential usage;
• Whilst the board may be an expert tribunal, it does not have jurisdiction to make errors of law;
• Whether or not it was desirable for apartments in such buildings to be let out for short term accommodation was irrelevant;
• There was no evidence that the apartments being utilised for short term accommodation were a danger; and
• The board erred in law in making its findings, its decision should be quashed and the matter sent back to a differently constituted board for determination in accordance with the law.
The matter had been sent back to the Building Appeals Board for further determination with the clear intimation from the Supreme Court that the board should follow the court’s reasoning and make a final determination that a class 2 building can lawfully be used for short term and holiday accommodation.
However with the Melbourne City Council having now appealed that decision, the issue is again unresolved. It is difficult to envisage that the Court of Appeal will overturn the Supreme Court’s clear and overwhelming decision on the issue. Whilst then there is every expectation that the Supreme Court’s decision will stand, we will have to wait for the Court of Appeal’s decision to bring absolute certainty.
I and others have previously called for the Queensland state government to legislate to stop the continued uncertainty on this issue. It is now more than three years since the previous Queensland government created confusion and uncertainty in the management rights and tourism industries in issuing a policy statement regarding the issue.
Regrettably the government has consistently refused to retract its published view that apartment buildings throughout Queensland which are class 2 buildings cannot lawfully be used for short term or holiday accommodation. Not only should the government do that, it should legislate to put the matter beyond doubt. By doing so, in the most unlikely event that the Victorian Court of Appeal overturned the Supreme Court’s decision, we would at least have certainty in Queensland.
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