Question: Our Brisbane scheme is under the Accommodation Module. Does changing to the Standard Module make it more difficult for landlords to obtain short-stay permits from the BCC?
We are a 78 lot scheme under the Standard Format Plan and the Accommodation Module and in the Brisbane City Council (BCC) area. Most of our lots are owner-occupied. Owners who rent their lots have requested permission for short-stay and holiday letting. Under BCC regulations, landlords are required to obtain a permit for short-term letting.
We are located out of the city but close to a large shopping centre, a train station and have good bus connections. As the present Accommodation Module favours holiday letting, if we change the regulation module to the Standard Module, would it be harder for a landlord to obtain a short stay permit from the BCC?
Answer: There is nothing in either the Standard or Accommodation Module which precludes the short term letting of lots.
I am not familiar with the BCC rules as they vary from Council to Council. However, there is nothing in either the Standard or Accommodation Module that precludes the short term letting of lots. To answer that specific question – it would not make any difference with respect to which Module you are in so far as the questions relate to strata law.
This post appears in the July 2025 edition of The QLD Strata Magazine.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
With this issue of Building Classification very relevant in our 18month old Class 2 complex, the question beckons, “what is the purpose of having Building Classifications if they are just going to be ignored?”
As it is, I can see no difference in the use of 2’s and 3’s albeit many in the construction of each. There is a clear difference in the construction of each, but not in the use apparently
If we are going to have a Class 2 buildings used as a Class 3, (and anyone who is fair dinkum will understand the “intent’ of the BCA/NCC with regards to Classification buildings) then why bother? Sure saves the Developer a stack of money at construction time.
We have failed to have Sunshine Coast Council explain this other than to have them ‘condone’ the practice of Class 2 Buildings being used as Class 3.
Regarding the Q&A about short-term letting on the Sunshine Coast in breach of the planning laws. This already is a live issue up there; a new complex, about 2-years old, was served with a Show Cause Notice earlier this year. Most of the units are owner occupied, but a few are being openly operated as a defacto hotel. The investor/owners tried to submit a group appln for Change of Use w/o referral to, or permission from, the Body Corporate.
This got knocked on the head by Council. I have been advised by a very experienced Planning and Environment lawyer that, unlike the Brisbane City Council and the Gold Coast Council, the Sunshine Coast Council actively pursues breaches of its planning requirements. This includes new complexes, ie those constructed since 2014, not specifically approved for short-term rentals. Finally, one Council is doing what it is supposed to do.
An accurate and worthwhile comment Ross and only half the story.
Council officers that fail to enforce the relevant provisions of the Planning Act (sections 163, 164 and 165 each carrying $600,000 penalty or $1.8M in total) as relating to unlawful short term letting are on a slippery slope also.
These 3 sections are executive liability provisions of section 227 that similarly expose council officers if they fail to enforce once aware of the imminent risks that exceed those of Class 2 buildings (apartments). The lowest risk class that can lawfully accommodate transient accommodation is that of a Class 3 building.
So what does an aggrieved owner do if they wish to continue this unlawful practice? 2 options.
A. Stop the letting and abide by the law – Building Act; Planning Act and BCCM Act etc.
B. Pay a potential $1,800,000 penalty if prosecuted … and then stop.
What should they not do?
A. Believe the spin and misinformation on this topic propagated by strata lawyers and management rights industry –
B. Attempt to gain a resolution without dissent required to register a new CMS under s62 of the BCCMA after having expended likely millions to upgrade the entire build to class 3 specification.
The mis-informers of the Qld Strata are once again attempting to divert enquiry from the facts …. If I see another comment so feebly pointing at s180(3) I will pewk.
The issue of lawfulness of short term accommodation in Qld apartment buildings was ‘Done and Dusted’ long ago when they were built and certified according to the respective DA of the day.
The Gold Coast city plan categorises ‘Short Term Accommodation’ (a defined Land Use) as a NON RESIDENTIAL land use. Therefore, any DA (or By-Law) for Residential Use Only is contravened.
Quite simple really … problem lies in that many strata lawyers have rarely been in the P&E court I suspect … so will therefore only assume to comment with authority.
How many motions can an owner put in to each AGM?
One owner has put in as many as 33 Motions at an AGM, in fact from 5 to 33 motions over 12 years increasing each year.
This Owner has been on Committee but resigned when she called an EGM to be held at our Complex and NO ONE turned up to her Meeting.
This Owner Disrupting meetings and Recording Meetings on the Owner’s Own Personal electronic Device – and taking away Recordings – even though attendees at the Meetings do not want Minutes to be Recorded by Owner.
Owners do not have an Issue with B.C.M. recording Minutes. Thank You.
Hi Irene
Regarding the number of motions, this has been addressed in the new regulation modules which commenced on the 1 March 2021. Details of the changes can be seen here: QLD: A Meeting of the Minds – Submitting a Motion to the Committee in our recent QLD Webinar.
Regarding the other issues, we will come back to you shortly.
Hi Irene
The following response has been provided by Chris Irons, Hynes Legal:
Body corporate legislation doesn’t restrict someone recording a meeting. For information about any other restrictions regarding recording and the issues about using that recording, you might want to contact the Office of the Information Commissioner.
I’ve read the commentary above and have nothing further to add except, earlier this year 10 Chinese individuals arrived from China and stayed in Airbnb in Broadbeach, Qld. I understand that they were the first people to bring Coronavirus with them to Qld, and as a result it spread and 2 people passed away. Therefore, it appears that health concerns will be more important than financial gain for everyone – particularly vulnerable citizens.
You are spot on Julie. Unfortunately we see this all through society … commercial interests putting profit before people.
I can claim to being a ‘close contact’ of 30% of Qld covid 19 fatalities (having disembarked Voyager of the Seas on 18 March – the day before Ruby Princess). Walked of without passport leaving my pocket or any health check onto the street and flew home.
I can further add that Tom Hanks and wife also stayed in that same Broadbeach Airbnb about 3 weeks later and also contracted it ….. Somehow I think you would be hearing more had they died.
While also a Residential apartment building, it is operated and marketed by a foreign multinational corporation as a ‘[removed by Admin]’. Sshhh … unlawful short term letting only if we get caught out … councils know but will continue failing their duty to act until a coronial inquest the like of childers demands so.
Our homes are not hotels but each Gold Coast apartment tower may as well be a Ruby Princess standing on end and being allowed to operate by complicit council officers it appears.
I believe this should go to the QLD Crime and Corruption Commission as it is so blatant.
Perhaps QLD should open its borders only when NSW open theirs to international cruise ships again.
Sounds fair and reasonable … let them walk the walk first.
Thanks Nikki
I am not surprised.
Mike Murray for PM! or at the very least Minister for Lawful Management of Community Title Schemes.
What a knowledgeable and reasonable enquiry as to the veracity of short term accommodation in Class 2 building schemes and compliance with Local and State Regulations. A pity Development Compliance Officer appear to not understand or don’t implement their own local and state regulations – if they did it would be ‘game over’ for unlawful short term letting!
Thank you Mike for your lesson in living with logic and owner-occupier empowerment in residential strata schemes.
Roger
Because of the corona virus it may be dangerous to have short term lets in your building putting residents’ health at risk.
THE OWNERS CORPORATION COULD ALERT THE TAX OFFICE THEY ARE ALWAYS INTERESTED. LOCAL COUNCILS DESIGNATE UNIT BLOCKS AS RESIDENTIAL SO SHORT TERM LETS CHANGE THAT TO COMMERCIAL. THIS CAN INCUR HIGHER RATES AND HIGHER INSURANCE.
DIANA NEUBACHER
Sorry Frank – you’re wrong, DIANA is Right
Tenuous reliance upon the tired old 2013 Docklands case is misinforming readers. If readers here actually read the case they will realise how flawed this purported catch all reference is.
Beyond the above you appear to offer little more clarity than a few adjudications an QCAT decisions. Each of these pertain to specific circumstances of schemes and if examined (as you rely on readers not to), also fail the catch-all ‘by-law’ argument.
We all know 180(3) can’t restrict the type of ‘residential use’ – we can all read.
However, your misleading messaging wrongly assumes and implies ‘short term accommodation’ is a type of ‘residential use’. This is factually wrong and might I suggest somewhat dishonest for someone who ought know better to propagate.
Please refer to Planning regulations with regard to Zoning and Land Use.
‘Short Term Accommodation’ is a defined Land Use and categorised as a NON-Residential in Qld. Game Over.
This position is supported by the 2019 High Court of Australia decision in Pike v Tighe… and further supported by the Privy Council decision defining ‘Residential Use’ and based on NSW strata law.
Unless you are able to provide more authoritative cases than Hilton Park, Macleay Towers or Lynkim Lodge as pertaining to just their specific by-laws or changes thereto ….
Furthermore, bylaws only pertain to ‘occupiers’ and exclude investor owners and holiday guests who can (and do) flout them with impunity. Check out the definition of ‘occupier’ in the BCCM Act … if you are not so familiar with its content.
… I suggest a public retraction of your apparently biased messaging be made in this forum and the above substantive case law be acknowledged as definitive….
… or as you may prefer the Short Term Letting debate is ‘Done and Dusted’.
PS. This writer hold a seat on the QBCC stakeholder advisory panel. In 2013 the ABCB issued a guidance clarifying Class 2 v Class 3 intended use. This guidance explicitly states short term letting and holiday accommodation can only occur in a Class 3 building. Tenure of occupancy if very different to type of use. Game Over again!
I would caution any owner or committee turning a blind eye to permit short term accommodation in a class 2 residential apartment build and suggest they review the executive liability provision of the Planning Act (Qld) 2016 along with their insurance implications. Penalty exposure of $1.2M individual and $6M corporation (ie the body corporate).
Although Qld has so far avoided its own Grenfell Tower tragedy due to such Unlawful Use (see s165 Planning Act) … the sad tragedy upon us all is that COVID19 entered Qld via such Unlawful Use by 9 chinese tourist in an Airbnb in the Oracle building Broadbeach.
Hi Mike
This response from Frank Higginson:
I have nothing further to add to what I have already said and I will simply leave it at that.
If you buy a residential apartment (ie class 2) it is NOT a hotel (class 3), and has never been allow to operate lawfully for ‘short term accommodation’ of any kind – airbnb, stayz, booking. com and alike.
Residential Use and Short Term Accommodation are both defined land uses under the Planning Act Qld. and are mutually exclusive – Residential > 3 months / STL < 3 months. Game Over … or you risk $1.2 Million penalty under sections 164 and 165 of the planning act (likely more than the unit is worth)
Before placing too much stock in responses of F Higginson or C Irons of Hynes (who ought know better) refer to the definition of 'occupier' in schedule 6 of the BCCM Act.
… 'a resident owner or resident lessee of the lot, or someone else who lives on the lot'.
Prof William Duncan overseeing the Qld Property Law Review published a paper that asserts short term accommodation (airbnb and alike) is not a lease but rather a licence to occupy as it does not provide exclusive property right to occupy, no bond or security of tenure for either party.
See High Court of Australia of Pike v Tighe determining that Land Use rights on an MCU (Material Change of Use DA) attach to the land and carry forward to successors in title.
The 56 units referred to are not White Elephants as they can be lawfully let to permanent tenants via an RTA lease as was intended by the original development approval.
However, there is a Huge Elephant in the room at Hynes that Frank or Chris either can't or more likely choose not to see ….
…. the meaning of 'residential use' as referred to in property law is well settled as high as Her Majesty's Privy Council, but also the High Court of Australia and the Supreme Court of NSW.
Therefore, don't believe all you hear from self professed experts … the more you learn about any topic the more you realise there is to know.
Hope some facts help and you source a good long term tenant before a 1.2M penalty from council.
The council want short term letting and oppose long term or owner occupier
The building is Class 3 and the zoning is residential 3.
Can i ask what your field of expertise is please.
Hi Janice,
The circumstance you describe clarifies. Being Class 3 means your building is built to the higher standard of safety and amenity required for use as a hotel, short term accommodation or permanent occupancy as a residence.
While ‘council’ (precisely who purports to represent themselves as being ‘council’ is the question) may ‘want’ STL, it was also ‘council’ that approved the development in a ‘residential 3’ zoning.
In Qld, ‘Short Term Letting’ is a defined Land Use under planning law but is categorised as a ‘Non-Residential’ Land Use. Accordingly, the zoning of ‘Residential’ would preclude any ‘Short Term Accommodation’ use from lawfully occuring in your building – and exposure to 1.2 million dollar penalty under sections outlined earlier. [Review High Court of Australia case of Pike v Tighe]
Finally, I would caution against placing too much stock in unqualified commentary from personel of ‘XXXXX Legal’ as simply a business name. such persons could well be past public servants or interested cleaners and I caution their commentary being regarded as ‘legal advice’.
It may surprise you to learn that, while we assumed most are, BCCM adjudicators, Commissioners and even QCAT members, are not required to hold any formal legal qualifications whatsoever – they can be lay people such as you and I, who demonstrate sufficient knowledge and experience to perform their role.
Consider this: In every courtroom in every case, solicitors and barristers on both sides get paid obscene amounts of money – irrespective of the outcome. It can therefore be deduced that 50% of them get paid all this money to be wrong.
In response to your final question.
I am no more qualified than an informed lot owner with 23 years experience in the Qld strata industry.
I understand the above is not what you would wish to read, however, it is as accurate and as direct advice as I am able to provide.
Hi Mike
We have received this response from Frank Higginson, Hynes Legal:
The position has been conclusively decided by QCAT in Queensland as we wrote about here. The building classification issue was decided in Docklands in Victoria, where it was held that a building being classified as class 2 or class 3 effectively had had nothing to do with the tenure of the occupant. If the arguments being proposed had merit, someone would have run them. They haven’t. There is a good reason for that – because they are baseless.
how tiresome this all is … having to correct self professed experts. I followed the link to ‘HERE’ as conclusively decided by QCAT in Queensland — or as some wrote.
The statement: ‘Holiday letting is a ‘dealing’ with a lot is false.
This has been established in the district court of appeal (Qld) by Barlow with reference to the Land Title Act. (Fairways Island case)
The writer, who now knows the statement is FALSE, will unlikely amend or remove the post but more likely allow such misinformation to propagate on these forums.
Let’s allow readers to determine the veracity of the posts of this commentator and consider the credibility of others as also being potential misinformation to the sector.
We have a slightly different situation. Our buildings of 56 accommodation units was approved at the planning stage as 56 building accommodation units and 1 managers unit There is no mention in the approval of short term letting, tourists or travellers. But the council is insisting that this was the original intention and an error was made in the writing of the judgement. We have had a legal opinion that intent cannot over ride the final legal definition but the Council is sticking to their opinion and warning that penalties will be imposed if their directive is not followed. Restricting the occupancy to holiday letting like this is extremely difficult financially for owners especially in this current climate as they just have to stay empty. Most of the owners are Mum’s and Dad’s and along with all other expenses like BC fees and Council rates etc they have outgoings of approximately $13k a year for a white elephant. And in current times cannot afford further expense of fighting this in court. Is there a Govt dept that could over ride the Council.
Hi Janice
We have received this response back from Chris Irons, Hynes Legal:
While I very much appreciate you don’t want the stress or hassle of legal proceedings, you do need to be realistic here. On one side, you have legal advice supporting your position. On the other hand, you have a regulatory body – council – taking the opposing view. Short of agreeing upon a negotiated outcome or an alternative dispute resolution process, your only option would be to have this determined in the appropriate jurisdiction. Until you do, the status quo remains.
You ask if there’s a government agency which can override council. Council is constituted and provided with powers under legislation like a body corporate is. You could always contact the relevant department with your concerns, or approach the relevant Minister.
Re the question “They run the Airbnb out of their unit. Is it a breach to conduct a business from a unit?”
Running a business out of a unit may or may not be a breach of the body corporate’s by-laws. However, running a rental property is not running a business.
This response from Chris Irons, Hynes Legal:
Hi Ross, that’s a good point. Again though it depends on the circumstances. Important to also clarify that while letting one’s own lot may not be ‘running a business’, letting out other’s people’s lots might be. As might providing services in relation to letting those lots. For example, I know that there are people who get paid to meet guests at an Airbnb on behalf of the host. This might require some legal advice if in doubt.
An interesting position Ross. Fair Trading Victoria clarifies on their website as follows:
‘Holiday accommodation, such as hotels, motels, and bed and breakfasts, are not classified as rental accommodation. Instead, they are classified as a service and regulated by the Australian Consumer Law.’
The question arises as to whether the airbnb operator would be considered a PCBU (person conducting a business or undertaking) under the W.H.& S. laws.
It is because paying guests also pay GST through these booking sites and also use the common facilities under a commercial arrangement with the accommodation provider – it is most likely this would be considered a business or undertaking.
The ATO also have a ruling on criteria for determining commercial residential premises. I suggest those interested look it up.
maybe you could stop being whiny and realise that people want to use airbnb type accomodation.
Like you Greg, I like to use airbnb type accommodation …. but don’t want strangers sharing my home and its common facilities. many people want to use nuclear power also … will you kindly accommodate the reactor in your back yard?
The UOAQ recently obtained advice that in Brisbane it is necessary for an owner to apply to the council for a change of use before short term rental may be exercised.