The impact of new town planning laws on tourist accommodation

Having grown up as a boy in Melbourne before coming to the Gold Coast, where I have been in our law practice for many years, I still have an interest in Melbourne and a curiosity as to how different the management rights situation is in both cities.

I have realised that on the Gold Coast we freely integrate our tourists with our resident population and celebrate the tourist industry as a great feature, benefiting both residents and tourists alike We have a very compatible resident and tourist use of our buildings particularly because of our form of management rights where the on-site caretaker and letting agent operates to cater to both residents and tourists alike. It is particularly beneficial for residents to know that the tourist guests are under the assistance and direction of the on-site manager utilising an office and reception facilities as well as residing on the site.

It is a far different situation in Melbourne! There, for many years now, has been legal warfare activated by many residents (particularly in the Docklands area) aimed at stopping any integration of use of apartments for short-term accommodation. There are no ‘live in’ on-site caretaker and letting agent arrangements flourishing and their laws are quite different to ours in Queensland. Currently there is a Supreme Court case being litigated to stop short-term accommodation at the Watergate building and there have been statements by the Victorian minister for planning, as well as action by the Melbourne City Council aimed at firmly restricting the use of apartments for short-term accommodation.

Myself and my firm have been particularly active in investigating and working with the Queensland government as well as Gold Coast Tourism to ensure that the application of laws in Queensland do not interfere with the successful operation of management rights and the integration of short-term guests along with residents in our resort style of strata titled buildings.

In the past ten years, I have been active in ensuring that the classification of a building under the Building Act in Queensland and the National Construction Code (NCC) does not interfere with such use. Many people have tried to use the classification of a building under the Building Act as a means to interfere and restrict short-term use of multi-unit buildings. However, it has been a straight forward task to point out that the Building Act is not a town planning instrument, or a social enactment, designed to give precedence to long-term residents over short-term residents in multi-unit buildings. Instead, it is a measuring of the needs in construction of buildings to ensure that safe measures exist when they are built for their future occupation.

Simply put, there are three classes for residential buildings under the NCC being, class one consisting of single unit buildings i.e. houses, class two being multi-unit residential buildings i.e. home unit apartments and class three being hotels, motels, back-packers and aged care type accommodation i.e. buildings where sleeping arrangements are separated from other living arrangements often with long corridors and a series of bedroom/bathroom type units.

More recently, the town planning implications of the use of an apartment for short-term accommodation has come into play in Queensland. This needs to be understood by developers, town planners and architects. It also needs to be understood by the tourism industry and those operating management rights as serviced apartments, catering to tourists and other short-term accommodation users.

This has come about by the Queensland government introducing Queensland Planning Provisions (QPP) by having standardised provisions for all city plans in the state legislation.

Particularly, this plan legislation has produced a definition of short-term accommodation incorporated in every city’s town plan under the QPP. With the introduction of the QPP definitions, all future buildings receiving town planning approval will effectively need to be approved of by the local authority for both short-term accommodation and permanent occupancy. Short-term accommodation is defined with the reference to occupation for less than three consecutive months by any occupier.

For anyone purchasing a new apartment, where it does not have approval for short-term accommodation under its town planning permit, there will be a difficulty because such use will need an application to council for a change of use. Are we therefore heading in the direction of Melbourne and Victoria, despite our more successful management rights operations currently integrating tourists and permanent residents alike?

Perhaps the introduction of Airbnb and other similar arrangements, where there is no on-site control over the accommodation arrangements, is impacting on government thinking and planning.

The purpose of this article is to alert real estate agents and management right operators that they now need to think in a further dimension before taking on new buildings and expecting to be able to automatically run the letting of apartments for short-term accommodation. They will need to take into account the QPP provisions and ensure that the right town planning items apply, rather than simply relying on the National Construction Code allowing for the use of multi-unit apartment buildings.

In the meantime, it appears as though Melbourne will continue to leave its “tourists out in the cold” because of their failure to grapple with the benefits of management rights legislation successfully operating in Queensland.

Rosie Clarke

Rosie Clarke is managing editor at Multimedia Publishing.

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