#28265
Lady Penelope
Strataguru

    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.