Amanda Farmer of Lawyers Chambers

This hypothetical owners corporation is in an enviable position as their local authority actually defines ‘residential’ in this helpful way. In my experience, this is rare [Editor’s note: Most if not all City of Sydney residential-only DAs stipulate a 90-day minimum].

In my view, this by-law would not fall foul of section 139(2): it is not the by-law restricting the lease of the lot, it is the local authority. That is to say, even if the by-law didn’t exist, leases of less than 90 days would be illegal.

The by-law merely confirms the position of the local authority, which can be helpful in situations where the local authority may be slow, or even unwilling, to enforce its planning instrument. The owners’ corporation can rely on and enforce the by-law instead of waiting for the council to act.

We don’t need to rely on the WA Court of Appeal or the Privy Council for the above argument. Those cases are helpful where (a) the local authority is silent on the issue or (b) the local authority actually permits short term lets (perhaps on certain terms) and the owners corporation wants to prohibit it.

In either of those circumstances, the reasoning of the WA Court of Appeal and the Privy Council encourages owners corporations wishing to prohibit short term lets to focus on ‘use’ by using terms such as ‘residential’ or ‘settled and usual abode’ in their by-law drafting, rather than blanket references to time periods.

Of course, the above view is general in nature only and owners corporations wishing to deal with the issue of short term letting need to obtain advice specific to their situation. Your question highlights the fact that such advice should always include proper consideration of the applicable planning instruments.