› Flat Chat Strata Forum › Airbnb and holiday lets › 1st NCAT case for AirBnB by-laws under SSMA2015 ? › Current Page
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.