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Millie – I would be wary of using the Dobrohotof v Bennic case as authority for all short term letting cases, and in interpreting the outcome too widely.
This case only addresses a narrow category of short term letting houses that are used as “party houses”. JT is correct.
You stated that: What is crucial is that the Hon Justice Rachel Pepper clarified what is a “dwelling” and judged that short-term visitor/holiday rentals were not the intended nor appropriate use of a “dwelling”.
The second part of your statement (i.e. the section that I have underlined) is not correct.
The Judge in Dobrohotof v Bennic said this:
In summary, the current rental of the property as holiday accommodation for periods of a week or less to persons using or occupying it other than in the ordinary family or household way, does not constitute a “domicile”, does not constitute a “dwelling”, and therefore, does not constitute a “dwelling-house” for the purpose of item 2 in the 2(a) Residential Zone. The use of the property not being otherwise permissible, it is prohibited within the Zone and it constitutes development in breach of s 76B of the EPAA. (my underling)
There are two limbs to the summary:
(a) holiday accommodation for periods of a week or less,
(b) persons occupying it other than in the ordinary family or household way.
If both limbs are present then the the Judge suggests that the property cannot be defined as a “dwelling”.
When both limbs of the Judge’s summary are applied then a property would still be deemed to be a “dwelling” if it was used as short term accommodation for periods longer than a week by a family or family members, or by a group of non family members using it in a household way.
The case does not act as authority for banning all short term letting.
The Gold Coast City Council have addressed the issue of “party houses” with the following ordinance:
https://www.goldcoast.qld.gov.au/documents/ll/Local-law19-party-house.pdf
Below is the GCC’s meaning of residential property. You will note that it is quite different from the rather ‘clunky’ (and yet to be tested) definition arrived at by the Judge in the D v B case.
A residential property is—
(a) a property of a type that would ordinarily be used, or intended to be used, as a place of residence or mainly as a place of residence; and
(b) another property specified as a residential property in a subordinate local
law.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?
Yes, it is over the top Whoopi. “In house” rules such as that one are not valid.
Go ahead and employ your own tradespeople to do work within your Lot. There is nothing in the Act that prevents you from doing so.
Let the SC seek permission from the OC to take you to NCAT if they believe that you are in the wrong!
It is unlikely that they would do so, and very unlikely that they would succeed in any action against an owner, such as yourself, who employed their own tradies to do maintenance and repairs of their own fixtures and fittings within their own Lot.
Another SC gone ‘rogue’. Sigh.
Mounting a class action against the council would definitely put the =^..^= among the (‘v’)
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.
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.
What are the reasons that the EC are using for not obtaining an assessment? Is it the cost of the assessment? Is it fear of the repercussions if loose fill asbestos was actually found? Or is it something else? Would the insulation have been installed at the time that the building was built or would it have been installed by a previous owner? Would all Lots have the same potential problem?
Apparently there was a program of free assessments available to strata schemes during 2016 but the deadline has now passed. It was offered by the Office of Fair Trade and the assessments were conducted by Licensed Asbestos Assessors.
From the OFT site:
What if my property is within a strata scheme?
Strata schemes that did not register for free testing prior to the 2016 registration deadline and are concerned that the property may contain LFAI should arrange for sample testing at their own expense.
To have been eligible for free testing, strata schemes will have lodged their intent to register with Fair Trading prior to the 2016 deadline and followed up by sending the approved special resolution to Fair Trading before 31 March 2017.
Lot owners should be aware of the implications of a strata scheme being found to contain loose-fill asbestos insulation. Visit the New Laws page on the NSW Fair Trading website for more information. Lot owners and tenants of affected properties are potentially eligible for a range of assistance measures under the Government’s Voluntary Purchase and Demolition Program.
If loose-fill asbestos insulation is found in the strata scheme, individual lot owners will be contacted to arrange for the next phases of the Program. You can read more on the valuation and acquisition processes page on the NSW Fair Trading website.
If the strata scheme did not lodge their intent to register prior to the registration deadline and there is concern that the property contains loose-fill asbestos insulation, the scheme arrange for an LAA to conduct a sample test at their own expense
Did your scheme participate in this scheme? If it didn’t then the OC will need to pay for any assessments by a Licensed Asbestos Assessor.
https://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Loose_fill_asbestos_insulation.page
The Home Building Act 1989 states that all properties with loose fill asbestos must be able to be identified on a publicly available Loose-Fill Asbestos Insulation Register.
If loose fill asbestos is found then Disclosure needs to be made available to any potential buyers, and any occupant of the property including tenants, and any people who work on the property.
The affected premises will also be ‘tagged’, which means a government-approved label is required to be placed at the electrical meter box.
If you are not getting a satisfactory response from the SC about an asbestos assessment then you could by pass them and go straight to the OC.
You could contact an asbestos assessor to obtain a written quote for this service, then submit a Motion for inclusion in the next General Meeting stating:
That the Owner’s Corporation, Strata Plan xxxxxxxxxxx hereby resolves to authorise the approval of the obtaining of an asbestos assessment report by xxxxxxxx ,a licensed asbestos assessor, at a cost of xxxxxxxxxxx to determine whether the common property ceilings contain loose fill asbestos insulation and that the Owners permit access by the assessor to those areas of the common property for the purposes of taking samples of the insulation material from the ceiling space for testing, for a technical analysis of the samples to be undertaken and for a report on the testing to be produced.
Fill in the spaces with the info when you obtain it. Include the quote. Have the OC vote on it.
You can find a list of assessors in your area via this link:
https://www.safework.nsw.gov.au/information-searches/asbestos-and-demolition-licence-holders
The position in QLD is that the Body Corporate (i.e. the OC) elects each person for each committee position. A person may nominate them self for a position, or be nominated by another owner. This occurs at an AGM.
A committee in QLD does not have the power to appoint a Chairperson, a Treasurer or a Secretary from within their cohort – only the Body corporate has this power.
It appears that NSW has this option too, should a scheme wish to adopt this method of selecting committee members.
The QLD system works well.
Back tracking from JT’s comments about the Dividing Fences Act, (in which JT correctly states that the party wanting a more expensive fence pays the difference), you probably should sort out what your own scheme’s position is first before taking this any further.
If the situation is a 50/50 split on your scheme deciding on timber or colorbond then what is your scheme’s position that you would be taking to your neighbour or to NCAT?
I would think that, under the circumstances that you describe, the position would be that if a repair of the timber fence is not possible then a replacement of the same type of fence would be appropriate. There would be no need for your scheme to have a vote on replacing same for same, as nothing is being changed.
However, if some of your owners want a colorbond fence then that is a change that would trigger the issue of “improvement” and “enhancement”. Such a change would require a 75% vote by special resolution – which your scheme clearly does not have.
Therefore, by default, your scheme’s position is that a timber fence is required. That is something that you will need to accept.
Moving forward, your scheme should obtain two quotes for the timber fence replacement and then should serve a Notice to Carry Out Fencing Work on the neighbouring strata scheme, including the quotes.
The process, and an example of a Notice to Carry Out Fencing Work, is described in the fact sheet below:
https://www.swslc.org.au/wp-content/uploads/2015/03/Neighbour-fencing-disputes-Fact-Sheet-final.pdf
Your scheme would only need to apply for an Order from NCAT if you cannot resolve this issue via an Agreement to Carry Out Fencing Works – as described in the Fact Sheet.
After the Notice has been sent and you have progressed to the Agreement phase then a sensible compromise Agreement would need to be worked out.
From your scheme’s perspective, being that your scheme wants a timber fence, it would be reasonable to suggest that your scheme permits the neighbour to erect a colorbond fence on the boundary but only on the condition that the neighbouring property would pay the full cost of the difference between the cost of the timber fence and the colorbond fence plus half of the cost of what a timber fence would cost. Your scheme would only have to pay half of the cost of a timber fence but would end up with a colorbond fence.
You may get what you want afterall and for a cheaper price than you expected!
This is an opinion by Peter Berney, National Business Development Manager, Solutions in Engineering:
“There are no differential standards for buildings on the basis of when they were constructed, or how many units they contain. However, compliance with the Building Code of Australia is not retrospective. Under the Environmental Planning and Assessment Act 1979, a building only has to comply with the Building Code of Australia at the time of construction. As a result, the Building Code of Australia does not require you to continually update your windows, balcony railings and fire doors etc.”
However, the writer goes on to explain that common sense should prevail and safety should be a priority. https://www.lookupstrata.com.au/nsw-older-building-safety-maintenance/#comments
A council may address a perceived fire safety problem in an existing building with a fire upgrading order, which is served under Section 121B Order No. 6 of the EP&A Act. Has your building received such an order?
The price of the fire door that you provided seems a bit expensive; however, does the door need to be custom made? Does the price include labour to install it? Does the frame need to be replaced? Does the sill have to be changed? Do the hinges need to be replaced to make it self closing? Does the door hardware need to be changed?
See this link to page that contains door prices …including fire doors.
Its a real ‘nightmare’!
Perhaps all naked flames should be banned too e.g. no smoking, no gas cook tops or gas stoves or gas ovens, no candles, no gas BBQs on balconies etc.
stressed – Thanks for clarifying your comments, and please let us know what the outcome is. Best wishes 🙂
stressed – You wrote the following statement in another thread with regard to your own renovation dilemmas through Mediation and the Tribunal: The Tribunal Hearing was held on 21 August 2017 with a reserved decision, for which I am still waiting!
Have you received a Ruling yet?
Incidentally, was the material (that you used in your response above) the same material that you included in your application? Has this interpretation been ratified by the Tribunal and did the tribunal reach the same conclusions that you have done?
It is not clear where your problem is at …. have your pavers been rejected and are you being forced to remove them and replace them with another type of paver? Have you been issued with a Notice to Comply?
Is your scheme covered by the NSW Strata Schemes Management legislation, or is it covered by another type of legislation e.g. Community Land Development Act? The reason why I am asking is that there is a stronger dependence on the Community Management Statement ‘rules’ in Community Schemes. Community Management Statements prevail over by-laws.
If you live in a community scheme and you believe that you have been treated unreasonably and that your committee has not followed the correct procedures about providing you with a Notice to Comply, then you can apply to have the problem Mediated and/or resolved via NCAT.
This publication (at page 18) explains the options and the process:
https://www.fairtrading.nsw.gov.au/pdfs/About_us/Publications/ft191.pdf
Renocamp – If I was you I would continue to finish off the paving job.
If you have complied with the requirement of installing grey pavers then that should be sufficient, particularly if no specific brand of paver was specified and no particular shade of grey was specified.
Then sit back and enjoy your finished pavers …. and wait to see what happens next. The OC may, or may not, decide to take you to Mediation or NCAT.
Who has denied you the ability to continue with the paving? Was it the committee (via a committee meeting), or was it the OC (via a general meeting)?
Unless there is a by-law that specifies strict uniformity of the appearance of all items within courtyards then minor aesthetic differences would not be unreasonable in a general Appearance of a Lot by-law.
Apparently there are 50 shades of grey!