A warm welcome to Martoo Consulting’s latest planning and development newsletter. Topics for discussion include:
- AirBnb Implications for Additions to Existing Dwellings
- Negotiate Rather than Appeal Development Applications
- Surveying with Noosa Cooloola Land Surveys
- Other Development News
- About Martoo Consulting
As always, we encourage any feedback about the articles or suggestions you may have for future content.
ADDITIONS TO EXISTING DWELLINGS: GUILTY OF BEING A PROPOSED AIRBNB UNTIL PROVEN INNOCENT
The public’s patronage of online services such as AirBNB and Stays has prompted local governments to review their current planning schemes. Local governments are coming under increasing pressure from certain residents, landowners, body corporates, holders of management rights in residential community titles schemes, commercial accommodation operators, and so on, to further clarify the regulation of the renting of residential premises through services like AirBNB. At the same time, landowners are identifying with the opportunities that AirBNB can offer. Local governments realise there is an opportunity to collect additional fees and charges from those operators of premises listed on AirBNB and similar sites.
This is a first in a series of brief articles that Martoo Consulting will publish examining the current AirBNB debate from a town planning perspective.
The process for local governments to amend policies and strategies for new development in their planning schemes is often time consuming. A local government’s need for reviewing certain aspects of its planning scheme differ in urgency, importance and complexity from political, technical and legal perspectives.
Some of these above interested parties are seeking local government’s response as a priority to review AirBNB related amendments. Several Queensland local governments have introduced temporary planning instruments which can be introduced promptly in an effort to increase controls over host management sites. This is an interim measure until local governments are able to formally amend their planning schemes.
It would appear that some local governments are now more closely reviewing proposals by landowners seeking to extend their dwellings. This apparently cautious approach may have, in part resulted from selected landholder’s proposals that would appear to be intentionally proposed for AirBnB-type usage. It is acknowledged that Council would question a proposed ten bedroom dwelling where all bedrooms are double size and have an ensuite.
However, there have been some unusual reactions from local governments when a landowner genuinely proposes to extend the dwelling to include an additional bedroom or rumpus/hobby room for the landowners with no current intent to use the additions for AirBNB. Even if the proposed additions do not include an additional kitchen or laundry, there are local governments who can take the ‘guilty until proven innocent’ approach and levy charges of many thousands of dollars upon approval. Such a charge may be lawful if the proposed addition was a secondary dwelling but not necessarily be considered lawful for a genuine addition to a dwelling house.
Hence, applicants are often questioning and seeking clarification from planners in regards to their property usage. As development planners, Martoo Consulting have extensive expertise in all forms of residential development and welcome the opportunity to share their experience regardless of whether it is an extension to a dwelling, a group units in a community titles scheme or a major tourist resort.
DEVELOPMENT APPLICATIONS: NEGOTIATION OFTEN BETTER THAN AN APPEAL TO THE COURTS…BUT BEWARE!
The current State planning legislation, The Planning Act 2016 commenced on the 7th July 2017. It replaced The Sustainable Planning Act 2009, introducing changes to previous processes and considerations with respect to development applications and their assessment and added certain new processes and considerations. One such example relates to those processes and considerations when undertaking formal negotiations with an assessment manager, such as a local government, immediately after it issues a development approval.
Martoo Consulting has always maintained that the ability to negotiate a development approval with the assessment manager should not be undervalued. Normally it is better to enter into formal negotiations directly with the assessment manager with the intent to obtain an acceptable a Negotiated Decision Notice rather than having to accept unreasonable or irrelevant conditions, or conditions that lack certainty, clarity, or accuracy. In most instances, applicants prefer to enter into formal negotiations directly with the assessment manager rather than through appealing to the courts.
Under the new Planning Act 2016 it is still possible to enter into negotiations with the assessment manager as existed under the now repealed Sustainable Planning Act 2009. The process involves the applicant making representations (now called “change representations”) to the assessment manager about a development approval during that period after the Decision Notice is issued and within which it is possible for the applicant to appeal to the court (i.e. “appeal period”). Applicants also retain the ability to suspend their appeal period to have further time to make representations to the assessment manager.
If an applicant suspends the appeal period to make representations and the assessment manager does not respond within 20 business days (or a longer period agreed with the applicant), the suspension will be lifted and the appeal period as provided for under The Planning Act 2016 will resume. This is a new feature of The Planning Act 2016 and has been referred to as a ‘de facto’ time limit on the consideration of representations by the relevant assessment manager. But beware. It should be appreciated that there is no positive obligation on the assessment manager to respond to representations within this timeframe under The Planning Act 2016.
Importantly, this change under The Planning Act 2016 also means that applicants can be caught out if they are not aware that their appeal period will automatically resume if they do not receive a response from the assessment manager within the 20 business days of the submission of their change representations.
Under The Planning Act 2016, change representations will be assessed by the assessment manager against the same matters that must be considered when deciding the relevant development application. If the assessment manager agrees with all or part of the change representations, a Negotiated Decision Notice is issued by the assessment manager so as to amend the original decision notice to include all agreed changes.
Therefore it is important to obtain advice from an experienced professional to compile and lodge changes representations as soon as a development approval is issued. All professional planning staff at Martoo Consulting have between 10 and 30 years’ experience as private consultants dealing with development applications.
Following careful consideration, Martoo Consulting Pty Ltd has decided to withdraw its direct involvement in land surveying to focus on the core business of town planning, urban development and development management.
Land surveying services for the Sunshine Coast continue to be available through Noosa Cooloola Land Surveys. Contact Mike Campbell on 0412 603 286 (firstname.lastname@example.org) or David Lau on 0419 782 360 (email@example.com).
For the Gympie region, we recommend Kim McCarthy of Kim McCarthy Surveys Pty Ltd who can be contacted on (07) 5482 6144.
OTHER DEVELOPMENT NEWS
Noosaville Foreshore Land Use Masterplan
Following extensive community consultation, the Noosa Council has a new land use master plan for the Noosaville foreshore. Of note is the decision, in line with residents wishes, to allow the sale of coffee from existing kiosks, provided they are small scale. Good news for dog owners too, as residents also expressed their desire to for owners to be able to exercise their pets off-leash at the western end of Noosaville’s Chaplin Park in a 12-month trial to begin later this year. Click here to read more on Noosa Council’s webpage https://www.noosa.qld.gov.au/media-releases