In the recent Queensland Planning and Environment Court decision
of Sunshine Coast Regional Council v EBIS Enterprises Pty Ltd
 QPEC 3591 the Court made enforcement orders sought by the
Council in relation to the owner's use of a large dwelling
house for short term rental accommodation. The Court held that the
use of the premises was properly classified as an
'accommodation building' rather than a 'detached
house' and was therefore unlawful in the absence of an
effective development approval.
The Sunshine Coast Regional Council had received noise
complaints from residents that a large house at Little Mountain in
Caloundra was being used for short term rental accommodation. The
house was located within a rural residential precinct and was being
rented by the owner to large groups of up to 20 people, typically
for short periods of 2-3 days at a time. The use of
'Accommodation Building' was a defined use under the 2004
Caloundra planning scheme, but no approval for the use had been
The Council applied to the Court for an Enforcement Order
preventing the owner from using the house for the purposes of an
'accommodation building'. This use is impact assessable
under the planning scheme. No development approval had been granted
to authorise the use of the house for the provision of short term
The owner took the position that the use of the land was
consistent with that of a 'detached house' which did not
require a development approval under planning scheme.
The applicable law was the Integrated Planning Act
1997, as the proceedings were commenced prior to 18 December
2009, when that Act was replaced by the Sustainable Planning
DLA Phillips Fox represented the Council in the proceedings.
ARGUMENTS RAISED BY THE PARTIES
In the absence of any significant factual dispute the matter
turned upon the interpretation of the relevant use definitions in
the Planning Scheme.
The Council argued that the owner's use of the premises
constituted an 'Accommodation Building' defined as
meaning 'a use of premises for residential accommodation which
does not comprise dwelling units.'
A dwelling unit is defined as meaning 'any building or
part of a building comprising a self-contained unit designed
adapted or used for the exclusive use of one household.'
The Council also based its argument upon a flow chart contained in
the planning scheme which defines categories of uses for the
residential use class and distinguishes between short term
accommodation (which includes accommodation building) and long term
accommodation (which includes detached house).
The owner argued that the house was used as a 'detached
house' which is defined to mean 'a use of premises for
residential accommodation comprising a detached dwelling unit on
one site. The term includes an outbuilding which is subordinate to
the dwelling unit, a home office and a small secondary dwelling
unit being an annexed unit.'
The Court accepted the Council's argument that the house was
being used as an 'accommodation building' under the
Planning Scheme and accordingly required a development
The Court was satisfied that the use of the premises was for
short term residential accommodation which did not comprise
The Court, in considering the definition of 'dwelling
unit' and whether the owner's use of the premises was that
of a 'household', stated that the word 'household'
suggests a common intention of a group of persons to live together
on a permanent basis. The Court found that due to the temporary
nature of the rentals, no permanent intention to reside together
could be held to exist by the renters, and their use of the
premises was inconsistent with that of a 'household.'
The Court granted the Enforcement Order sought by the Council to
prevent the unlawful use of the house from continuing in the
absence of an effective development approval.
The decision clarifies a grey area in the Council's planning
scheme, in an important decision that is likely to have
implications in the major coastal shires in South East
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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