The case of Jephcott & Anor v Noosa Shire Council [2024] QPEC 5 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of the Noosa Shire Council (Council) to refuse an application for approval to make premises at Peregian Beach (Premises) available for short-term accommodation on a commercial basis (Application).

The Court considered whether the Premises had the benefit of an existing use right for "short-stay letting" for the purpose of section 260 of the Planning Act 2016 (Qld) (Act) and whether the proposed use of the Premises was accepted development under the Noosa Plan 2020 (Planning Scheme).

The Court found that the use proposed by the Application could not be lawfully conducted on the Premises as the Premises did not have the benefit of an existing use right as the Premises was not used for "short-stay letting" before the Planning Scheme came into effect, and the use of the Premises was not an accepted use under the Planning Scheme. The Court therefore dismissed the appeal and confirmed the decision of the Council to refuse the Application.

The Application was made pursuant to the Noosa Shire Council Local Law No 1 (Administration) 2015 (Local Law) which, in section 6, makes it an offence to undertake a prescribed activity without a current approval granted by the Council. Having regard to relevant sections of the Local Law, the Court identified the prescribed activity as the "operation of short stay letting", which is defined as "…the letting of premises to someone other than the owner, on a commercial basis, for a period of less than three months" (Short Stay Letting) (see [3] to [5]).

Section 9 of the Local Law provides the circumstances in which the Council may grant an approval for Short Stay Letting. Relevantly, section 9(1)(d) of the Local Law requires that the operation and management of the Short Stay Letting is consistent with any additional criteria prescribed by a subordinate local law (see [5] to [6]).

Section 4 of schedule 21A of the Noosa Shire Council Subordinate Local Law No 1 (Administration) 2015 (Subordinate Law) prescribes additional criteria for the granting of an approval for Short Stay Letting. Relevantly, section 4(e)(i) of schedule 21A of the Subordinate Law requires that Short Stay Letting can lawfully be conducted on the Premises (see [6] to [7]).

As the Council had not issued a development permit for Short Stay Letting on the Premises, the Applicant argued that Short Stay Letting could be lawfully conducted on the Premises because there was an existing lawful use right protected by section 260 of the Act (at [7]).

The Appellant argued that the Premises had an existing lawful use right as, immediately before the Planning Scheme came into effect, the Premises was used for a mix of short-term accommodation and long-term accommodation (at [11]).

The Appellant also argued that a broad approach ought to be used when determining the use for the purpose of section 260 of the Act. This approach would mean that the Premises was lawfully used as a dwelling house before the Planning Scheme came into effect and the proposed use for Short Stay Letting would be a continuation of the use of the Premises for a dwelling house (at [7]).

However, the Court found that a more precise definition of the use must be found for the purpose of section 260 of the Act, which in this case is Short Stay Letting. Whilst the Appellant's evidence established that the Premises had been previously used as a private holiday home and let to friends and family for periods of time, the Court found that the Premises was not let on a commercial basis before the Planning Scheme commenced and it therefore followed that the Premises was not used for Short Stay Letting when the Planning Scheme came into effect (see [12] to [14]).

The Court also considered whether the Premises could be used for Short Stay Letting as of right under the Planning Scheme.

The Court found that the use of the Premises for Short Stay Letting would constitute "short-term accommodation" under the Planning Scheme. The Premises is in the low-density residential zone under the Planning Scheme and under the relevant table of assessment "short-term accommodation" is accepted development in that zone only if it complies with the four criteria, and is otherwise assessable development subject to impact assessment (at [15]).

The Court found that the Short Stay Letting proposed by the Appellant would not comply with three of the four criteria required by the Planning Scheme to be considered accepted development and a development permit is therefore required to lawfully conduct Short Stay Letting on the Premises (a [16]).

As the Appellant did not establish that it could lawfully conduct Short Stay Letting on the Premises, the Court confirmed the Council's decision to refuse the Application and dismissed the appeal (at [17]).