In New South Wales, planning and development activities are carried out under the Environmental Planning and Assessment Act 1979 (NSW). The legislation creates a complex system of state, regional and local planning.
From my understanding ‘a material change of use’ as defined in the Environmental Planning and Assessment Act 1979 (NSW) is not the same as the ‘change of use’ mentioned in the model by-law. The wording of the by-law has unfortunately created unnecessary confusion.
‘A material change of use’ is a legal term where the character of the use of property must be shown to have been changed substantially.
A case where ‘material change of use’ has been successfully prosecuted involved a situation where a residential property was let out by the owner to non family groups who had the intent of having hens and bucks parties and who stayed for less than a week. The property was not occupied by the owner throughout the year.
A case where ‘material change of use’ has not been successfully prosecuted involved a situation where a house was being occupied by: the owner for holiday periods, by the owner’s friends and by the owner’s staff on a non-paying basis, with, superadded to that, a period in the aggregate of 10 weeks in the year during which it was let as a rent to single households.
Model By-law 17, if it was to be adopted by the strata scheme, does not provide much relief to strata schemes that want to prevent short term accommodation. All By-law 17 provides is that notice must be given to the OC by the Lot owner who plans to rent out their property in this way. There is no provision in By-law 17 for the OC to refuse a Lot owner’s notice.
However, it may be possible for relief to be obtained by the OC in claiming ‘a material change of use’ if it could be shown that the particular Lot had accumulated a substantial number of By-law 17 notices AND that the tenants are using the Lot in a way that is antithetical to how a family would use the Lot AND that the owner did not use the property.