In the case of Dobrohotoff v Bennic  NSWLEC 61, Pepper J found that the use of a property for short term rental accommodation did not constitute a “dwelling house” for the purposes of the 2(a) residential zone under the Gosford Planning Scheme Ordinance (“the GPSO”).
Facts: the respondent, Ms Bennic, owned a property in Terrigal (“the Property”) which she rented out as short term holiday rental accommodation. The applicants, Dr and Mrs Dobrohotoff resided in the house next door to the property.
The Dobrohotoffs gave evidence of a history of noisy and disruptive tenants renting the property and engaging in antisocial behaviour, including loud music, flashing lights, bucks and hens nights, offensive language, broken glass and parties extending until the morning. This significantly adversely impacted the Dobrohotoffs’ amenity, caused stress and anxiety and resulted in the Dobrohotoffs vacating their house at peak times. They had complained to Gosford City Council (“the Council”), but the council took no action despite apparently acknowledging that short term holiday rental of residential premises may be a prohibited use under the GPSO.
The property was zoned 2(a) Residential under the GPSO under which the use of land for the purposes of a “dwelling house” was permissible with consent. The terms “dwelling house” and “dwelling” were defined as follows:
- “Dwelling house” means a building containing 1, but not more than 1, dwelling.
- “Dwelling” means a room or number of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.
The term domicile was not however defined in the GPSO, but has been the subject of numerous decisions of the Court.
Under the draft Gosford Local Environmental Plan 2009 (“the draft LEP”) it appeared that Ms Bennic’s use would be permissible with development consent. However, the draft LEP was neither certain nor imminent.
(1) whether use of the Property was for a “dwelling-house” for the purpose of the 2(a) Residential Zone;
(2) if not, whether the use of the Property as short term holiday rental accommodation was prohibited;
(3) if that use of the Property was prohibited, whether the Court should grant the following relief:
(a) a declaration that, in breach of s 76B of the EP&A Act, Ms Bennic carried out prohibited development by that use;
(b) an order that Ms Bennic be restrained from using the property for that purpose, including advertising, soliciting or permitting the property to be so used;
(c) an order that, if the draft LEP came into effect permitting that use with consent, Ms Bennic be restrained from doing so without first obtaining consent; and
(d) an order (sought by way of an amendment to the summons) that Ms Bennic notify in writing any party interested in purchasing the property of the orders above.
The Court made the declaration and granted the injunction.
The Court found that the use of the property was prohibited as it was not within the meaning of “dwelling-house” in item 2 of the 2(a) Residential Zone. The meaning of an EPI must be ascertained objectively, having regard to its text, context and purpose. In construing the GPSO, the zoning objectives were relevant. The draft LEP was not relevant. In considering the term “dwelling-house” the Court noted that the term “domicile” was not defined. Upon the proper construction of the GPSO, the use of the property as short term holiday rental accommodation for up to a week to persons using or occupying it other than in the ordinary family or household way, did not satisfy the meaning of the term “domicile”, and lacked the requisite degree of permanence of habitation or occupancy to be a “dwelling-house”. Therefore, Ms Bennic’s use was prohibited and constituted development without consent in breach of s 76B of the EPA Act.
Note: This information is not to be relied upon as legal advice.