Are Airbnb Rentals Against Planning Laws?
Article written by Alison Brookman, Special Counsel - Wallmans Lawyers and published in SATIC. Autumn 2018
There has been much discussion recently about Airbnb rentals and whether they fall foul of local planning laws.
Overseas destinations such as Barcelona and New York have banned unlicensed short-term rentals on Airbnb, whilst a local shire in Victoria wants to impose a ban on Airbnb rental guests from socialising outdoors after 10pm.
This situation in South Australia is less clear.
Planning governs land use. if a land use changes it will require approval from the local council. If a building is constructed it requires approval for building code compliance but also for planning compliance, the use of the building must be an appropriate use of the land.
Airbnb is a relatively new model of accommodation - it may not necessarily be short-term or for tourism. So, what is the difference between a holiday house, serviced apartments and Airbnb rental?
There is no clear legal position in SA on the need for planning approval and therefore a form of regulation by local government. There are no cases in the planning area in SA which have looked specifically at the Airbnb situation.
A house or room in a residential neighbourhood rented out for a matter of days or weeks via Airbnb is probably of no concern, and is unlikely to have any adverse impact on the area of the neighbours. But a commercial development of serviced apartments which incorporates all, or a proportion of them, on Airbnb is a different scenario. There may be no regulation of number of occupants, hours kept or noise generated, all of which will be regulated by an approval for a commercial hotel or motel.
If a residence changes its nature from, say, a private house to tourist accommodation on a permanent basis, or where greater numbers of people are housed, this may be sufficient to be a change of use that would require council approval. It is not possible, with the current state of play, to be definitive.
Land use planning is a notoriously grey area. Every different situation will depend on its own facts, the nature of land use, intensity and any detrimental impacts the use may have or may be having on neighbours.
We will keep SATIC members updated should there be clearer direction in the future.
The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.