Gold Coast City Council Mediterranean

Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

Date: 12/12/16 CITY OF Contact: Althena Davidson Location: Waterside East GOLD COAST: Telephone: 5582 8042 Your reference: Our reference: 58867067

Jana Koutova Chief Operating Officer Unit Owners Association of Queensland Level 6, 333 Adelaide Street Brisbane OLD 4001

DearJana

Short term tourist accommodation

Recently Council officers met with Wayne Stevens regarding Short term tourist accommodation. A number of points were discussed at the meeting, with officers needing to seek further information before responding in writing. Wayne has requested this response be sent to you on his behalf. Please find below responses to the outstanding matters raised during the meeting.

What is the level of owner's consent required for a short term accommodation application in a building with body corporate? If this scenario is in relation to an existing building with an apartment approval, owner's consent would be required for a Material Change of Use development application to the premises. Even though particular rooms could be located within specif[c exclusive area, users of that room would need to utilise common area such as lifts, waste collection services, recreation services and car parking. Therefore, the body corporate approval would be required for such an application.

What are the changes in the Material Change of Use requirements under City Plan? There is a significant change in the definitions from the 2003 Our Living City Planning Scheme to the City Plan, which commenced on 2 February 2016. Prior to the City Plan, there was no stipulation on whether an apartment use was limited to short term or long term accommodation. The City Plan definitions now require an applicant to specify whether the accommodation use is short or long term. Council have recently received Material Change of Use applications for multiple dwellings and short term accommodation - being two land uses within the one application. The application is required to identify exactly what units are to be used for short term and permanent accommodation. This does have assessment and decision making ramifications, such as car parking numbers and equitable access requirements.

How can a complaint regarding a short term tourist accommodation use be made? The definition of apartment under the 2003 Our Living City Planning Scheme did not prohibit short term tourist accommodation. There were many approvals for apartments issued under this planning scheme where development has resulted in a hybrid of permanent and short term accommodation scenarios. Council officers consider that if the short term accommodation use was operating under such a scenario prior to the City Plan (which commenced 2 February 2016), it is unlikely that a development offence is being committed.

City Panel - Have your say Council of the City of Gold Coast P 1300 GOLDCOAST (1300 465 326) Customer Service Centres Register at gchaveyoursay.com.au PO Box 5042 GCMC OLD 9729 Australia E [email protected] Rnd the closest centra or online service 8 Karp Court, Bundall W cltyofgoldcoa I com.au at cityofgoldcoast.com.au/conta Ius ABN 8485854 60 Page 1 of 25 ..... Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean Small scale tourist accommodation Page 2 PD98/1132/05/03 12 December 2016

In officer's opinion, the continued use of a unit for short term tourist accommodation that was operating prior to the City Plan commenced , where a Material Change of Use for an apartment was approved under the 2003 Planning Scheme, isn 't likely to be generating a development offence.

A valid complaint regarding a short term tourist accommodation land use, could only be made if the use had not lawfully commenced prior to 2 February 2016. To clarify, officers would consider the scenario where an apartment was approved for permanent accommodation, and was changed to short term tourist accommodation use post 2 February 2016, may result in a development offence.

A valid complaint can be forwarded to Council's Development Compliance section at http:/lwww.goldcoast.q ld.qov .au/report-a-problem-town-planning-building-compliance-2417 4. html or on 5582 8184.

If you have any further questions, please contact Althena Davidson on 5582 8042 .

Yours faithfully

Amanda Tzannes Manager City Planning For the Chief Executive Officer Council of the City of Gold Coast

Page 2 of 2

Page 2 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean CITY OF Date: 17 July 2017 Contact Althena Davidson Location: City Planning, Waterside East GOLDCOAST. Telephone: (07) 5582 8042 Your reference Our reference PD98/1 1 32/08/01

Wayne Stevens Unit Owners Association of Queensland Inc GPO Box 2359 BRISBANE QLD 4001

Dear Sir/Madam

LAWFUL USE OF PREMISES

Thank you for your letter, dated 4 July 2017, to Mayor Tom Tate about lawful use of premises for short term accommodation. The Mayor has asked me to respond on his behalf

We reaffirm the stance outlined in the letter to yourself, dated 10 March 2017. Uses established prior to 2 February 2016 continue to be lawful and cannot be further regulated by the City Plan. Many residential definitions under the previous 2003 Planning Scheme. such as the 'apartment ' definition, allowed short term stay in addition to long term occupation.

This is consistent with s. 260 of the P/ann/ng ,4ct 2076 (note that the P/ann/ng 4cf 2076 replaced the Susfa/nab/e P/ann/ngAcf 2009 on 3 July 2017):

260 Existing lawful uses, works and approvals . , ,, (1) if, Immediatelybefore a planninginstrument change, a use or premises was a lawful use of premises, the change does not- (a) stop the use from continuing;or jb) furtherregulate the usd or lc) require the use to be changed.

As you point out in your letter,the apartment(or other development)would have needed to be established lawfullyto benefitfrom protectionof use rights referenced in the clause above, includinglong term residentialuse rights. Uses could have been lawfully established (meeting s. 9 of the St/sta/nal)/e P/ann/ng Acf 2009 and Sch 2 of the P/ann/ng ,4cf 2076) through an approval from Council, or by meeting the self-assessable requirements at the time.

Short term stay established prior to 2 February 2016 within a lawfullyestablished apartment (for example), will continue to be a lawful use of premises. We will be unable to take enforcement action in these instances.

In relation to the issuing of enforcement notices for unlawful use of premises, these would need to be issued by Council to the offending unit owners. and not the body corporate. If

Document: 63213175 Page I of 2

Surfers Administration Centre Nerang Administration Centre Council of the City of Gold Coast E mail@goldcoast:qld.g6v,ad 833 Southport Nerang Road, Nerang w cityofgoldcoast.com.ay 135 Bundall Road, ,Surfers Paradise PO B6X5042 GCMC; QLD 9729 Australia F +61,7 5596 3653 F : .'+61:7 5596 3653 ABN 8485854846Q P 1300 GOLDCOAST (1300 465 326) Page 3 of 25 Page 2 Unit Owners AssociationLAWFUL of Queensland USE Inc. OF PREMISES Gold Coast City Council - Mediterranean PD98/1 1 32/08/01 17 July 2017

you have a specific example of where this has not been the case, please provide further details and we can investigate.

Your correspondence raises matters relating to building class. As noted in our letter dated 10 March 2017, the class of building under the Building Code of Australia (BCA) is a separate consideration to the land use definitions under the City Plan. The Bu//d/ng.4cf 7975 establishes the processes and obligations where the use of premises alters its BCA classification.

Contacting us Should you wish to clarify any issues contained in this letter, please do not hesitate to contact Althena Davidson telephone (07) 5582 8042

Yours faithfully

Dyan Currie FPIA HonRTPI FDIA Director Planning & Environment For the Chief Executive Officer Council of the City of Gold Coast

Page 4 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

Date: 18 June 2017

To: Gold Coast City Council – Development Compliance and Enforcement

Re: AirBnB or Short Term Letting in places of residential dwelling

Dear Responsible Officer – Development Compliance and Enforcement

Request is hereby made that Council take immediate action to prevent further unlawful AirBnB or Short Term Accommodation use of the residential dwellings situated at 220-222 The Esplanade Burleigh Heads. The numerous offending properties are among those of The Mediterranean - East Tower (BUP 104532) and The Mediterranean - North Tower (BUP 105017) and identified in the attached schedule as derived from council records.

Background

The complainant purchased his unit as his home 15 years ago in 2002. At that time, all correct searches were performed whereby development approval as a Class 2 building purposed for residential Dwelling was confirmed. Council records further show no application for any Material Change of Use for Class 3 building use has ever been sought by or approved for any of the 112 registered lots.

During the first 10 years this home of mine became increasing disrupted, costly and lost much of the amenity expected when purchased due to absentee owners increasingly but unlawfully engaging in short term letting of their units. I was a single father trying to raise my daughter in an environment of foul language emanating from adjacent balconies and pool area, doors banging at all hours and holiday makers up for a party at any time. Building management were rarely available and would do nothing as they also profiteered handsomely from letting to short term guests.

The Council eventually took some action to address the obvious incompatibilities between residential dwelling and short term accommodation via the state government ‘Party House’ amendments to the Sustainable Planning Act 2009 in 2014. Unfortunately, little recognition was given to the same loss of amenity being endured by the vast numbers in high density residential dwellings such as mine.

The situation became so intolerable that my daughter and I felt compelled to vacate our home in 2013. Since that time, an extensive and exhaustive campaign of research, meetings and correspondence including with legal practitioners, government officials both state and local (BCC and GCCC), strata industry associations and independent town planners along with relevant case law studies has been conducted.

Current status

More recent communications between the Unit Owner Association of Queensland, the Gold Coast City Council, and the Mayor via Ms Amanda Tzannes, (A/Director Planning and Environment), indicate it is not only within the Councils authority to act on this matter but that the council is indeed obligated to act. Understandably, council has limited resources to regularly inspect premises for enforcement of compliance. Accordingly, Council have advised that its officers can only investigate and act once a complaint is received that identifies such properties.

This correspondence is such a complaint.

Page 5 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

The Grounds of Complaint

Written confirmation is held that:

1. The applicable land use zoning for the site remains High Density Residential and is subject to the Dwelling House overlay for assessment. 2. Before a lot owner in the subject Mediterranean Towers can lawfully use their unit for commercial short term accommodation, a development permit for Material Change of Use must be obtained. 3. All the residential lots and common property of the Mediterranean Towers were correctly approved and built to standards of a Class 2 building – being for residential ‘Dwelling‘ only. 4. Queensland Planning Provision define both ‘Dwelling House’ and ‘Multiple Dwelling’ in terms of exclusive use by one Household - with ‘Household’ defined as An individual or a group of two or more related or unrelated people who reside in the dwelling, with the common intention to live together on a long- term basis and who make common provision for food or other essentials. (emphasis added) 5. No applications for any Material Change of Use have ever been made. Consequently, NO short term letting can be deemed as ‘Lawful Use’ [As defined in the SPA 2009 s9(b)] 6. The use of lots for short term accommodation requires a Material Change of Use permit because, as defined in the Sustainable Planning Act 2009, it represents a) ‘the start of a new use of the premises‘ (in direct conflict with use as a Dwelling) b) ‘a material increase in the intensity or scale of the use of the premises’ 7. Existing Uses and Rights provisions surrounding sections 682 and 685 pertain only to existing ‘Lawful Use’. Pursuant to 5 above, offenders unlawfully engaging in short term accommodation use of their lot are unable to rely upon existing use provisions of the Act. 8. Evidence has existed for some time, that this Class 2 residential dwelling building is being misused as a Class 3 building for short term accommodation including - a) Units misrepresented through being publicly advertised as a Hotel, Resort and alike – all of which must be built to the more stringent standards of the Class 3 building classification is recognition of transient occupiers being unfamiliar with layout, facilities, amenity and occupation. b) Units are incorrectly allocated rating categories of 3T, 3U and alike as applicable to Class 3 buildings as defined in the National Construction Codes. 9. The anomalous situation outlined in 8(b) above occurs due to - a) Data Collection Forms (Section 3 – Statement of Occupancy) returned by rate payers declaring an effective material change of use for “rent to tourists/visitors”. These are wrongly accepted by council without question – presumably to gain the higher rating revenue. Such a Material Change of Use being blindly accepted by council as self- assessable development is inconsistent with requirements for code assessment and impact assessment and does not constitute the required development application or permit. b) Data Collection Form (Section 4 – Application for rental licensing) through the use of terms such as ‘to the best of their knowledge’ further avoids application and proper assessment of the Material Change of Use by placing the onus upon the applicant to become so informed. c) When a completed Data Collection Form is not received by council, a differential rating in category 3 is applied by default instead of category 2 - being the highest lawfully applicable to a class 2 building developed and approved for residential dwelling use only. Note: In 2013 this writer experience precisely this situation. Upon enquiring of the process by which council had allocated the category 3 rating to the property, the written response (retained in email) from the senior council officer claimed it to be a “business decision of the CEO”.

Page 6 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

d) Council have failed to detect misallocation of Rating Categories against Building Classifications even though council records hold the information to enable this to be readily detected if desired. e) Data collection forms requiring lot owners to disclose ‘Type of Use’ allow lot owners to claim renting to itinerants is occurring in Class 2 buildings permitted for use only as a Dwelling (ie principle place of residence or rented to permanent tenants). Council has failed to detect this discrepancy and continues to record rating category 3 use occurring in buildings that are neither Class 3 buildings nor holding development approval for such use as Hotel, Resort etc. f) In short, 9 (a – e) above serve to demonstrate the inherent contradiction of the data collection form being applied to a Class 2 building (where the owner records use as renting to tourists/visitors in Section 3) due to the inherent conflict with the declaration of Sections 4(a) and 4(b).

10. Section 10 of the Building Act 1975 explicitly states

110 Restriction on making BCA classification or use change The owner of a building must ensure a BCA classification or use change is not made to the building unless— (a) a building certifier who is either of the following has approved the change and the building as changed complies with the building assessment provisions— (i) a local government building certifier; (ii) a private certifier (class A); or (b) the change has been approved under section 112. Maximum penalty—165 penalty units.

Risk and Liability Exposure

While ever the unlawful use of units for short term accommodation in this complex continues, all unit owners, the travelling public and from this correspondence forward, the responsible council officers remain considerably exposed due to –

1. The building insurances held by the body corporate placed in jeopardy. The building is only insured as residential premises and NOT for commercial use as tourist accommodation.

2. The health, safety, amenity and sustainability of residents is compromised through significant increases in human traffic, associated wear and tear, noise and disruption, maintenance and operating costs.

3. Safety of the public as short stay guests is compromised due to unfamiliarity with paths of egress and other emergency procedures required of a class 3 building. NCC requirements for Class 2 building are less stringent in recognition of class 2 being for use as a residential dwelling only. The premises standards of the Disability Discrimination Act are also conveniently ignored. Any WH&S scrutiny of premises is also avoided.

4. Council also remains exposed while ever it can be shown to have received notice of such non- compliance and failed to act accordingly [Ref. Civil Liability Act 2003 – section 10]. These concerns of the complainant for the position of council as the responsible authority arise from the following:

I. The note in part 9(c) above tends to indicate council awareness if not complicity in ignoring the issue - possibly due to the higher revenue of the rating category.

Page 7 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

take appropriate action against any offending lot owner. Furthermore, it is not the responsibility of bodies corporate to enforce or give notice of such matters.

III. Council responses to similar previous complaints assert that while council can readily identify buildings engaged in short term accommodation via online booking sites, it has no way of identifying precisely which units are the offending units for sending an M.C.U. show cause notice to the offending lot owner. This complainant believes this to be a false and diversionary tactic of council designed to either avoid or delay prompt and proper action being taken to enforce such building compliance. The complainant has clearly established that the offending units in this complex are readily identifiable via councils own records of rating category compared to the building classification. (see attached listing)

IV. The complainant also experienced council officers providing false statements that obstructed and frustrated a F.O.I. request to obtain the relevant facts that support this complaint. The complainant clearly disputes that differential rating categories can be arbitrarily allocated to a property as “a business decision of the CEO” as was advised in writing by a senior council officer. The claimant questions the motives of council to seemingly be acting toward the vested interest of itself and other parties and against the rights of ratepayers and the interest of public safety.

Action Required

Having provided all the necessary evidence, the complainant requires council compliance and enforcement officers to, without further delay or obstruction, issue the appropriate show cause notices to each of the offending property owners as outlined in the attached schedule and as derived from councils own records.

It should come as little surprise that the recent London fire tragedy has highlighted just how serious further inaction on this matter will be viewed by the community at large. Should it be required, a substantial body of evidence documenting more than a decade of awareness but inaction by authorities on the misuse of class 2 buildings for short term accommodation is able to be released in the interest of public disclosure and to assist council with the matter.

The complainant seeks to resume occupancy of his residence at this address in 2 months. Accordingly, it is expected the residential amenity and health and safety for the complainant and all residents in the buildings will be restored and no longer compromised by the proliferation of short term guests by this time. Failing this, the complainant will seek written explanation from council as to why it is unable to uphold it obligation to the ratepayer to ensure the residential amenity and safety of this class 2 building for which rates are paid.

Yours faithfully

Michael Murray.

Lot Owner

Page 8 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

SCHEDULE OF OFFENDING LOTS

RATE LOT RATE B.U.P. LOT NUMBER B.U.P. CATEGORY NUMBER CATEGORY 104532 5 3T 105017 2 3T 104532 9 3T 105017 3 3T 104532 10 3T 105017 6 3T 104532 11 3T 105017 7 3T 104532 12 3T 105017 11 3T 104532 16 3T 105017 15 3T 104532 17 3T 105017 22 3H 104532 18 3T 105017 24 3G 104532 19 3T 105017 27 3H 104532 21 3T 105017 28 3H 104532 22 3T 105017 29 3G 104532 25 3T 105017 31 3H 104532 28 3H 105017 32 3H 104532 29 3G 105017 38 3H 104532 30 3H 105017 39 3G 104532 31 3H 105017 40 3H 104532 33 3G 105017 42 3H 104532 34 3H 105017 44 3G 104532 35 3G 105017 45 3H 104532 36 3H 105017 47 3H 104532 37 3H 105017 49 3G 104532 38 3H 105017 51 3H 104532 39 3G 104532 40 3H 104532 41 3G 104532 43 3H 104532 44 3H 104532 45 3G 104532 46 3H 104532 47 3G 104532 48 3H 104532 50 3H 104532 52 3H 104532 57 3G 104532 58 3H 104532 59 3G 104532 60 3H 104532 61 3H

Page 9 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

Date: 7 August 2017 CITY OF Contact: Kathryn Sarikas, Development Compliance Location: City Development Telephone: 07 5582 8184 Your reference: Our reference: PN201902/16

Michael Murray Lot 3/239 Brygon Creek Drive UPPER COOMERA QLD 4209

Dear Mr Murray

Customer request 281994 Alleged breach: Unlawful Uses Property description: BUP104532 Property location: 220 The Esplanade Burleigh Heads

I refer to the above matter. A Development Compliance officer from Council of the City of Gold Coast (Council) has investigated the matters raised in your request. The officer has marked the request as completed because no breach was found.

Because the use 'short term accommodation’ was initiated prior to the commencement of the City Plan it has the benefit of existing lawful protection under s260 of the Planning Act, which states that an existing lawful use is protected from a new planning scheme or amendment of a planning scheme stopping the use from continuing, further regulating the use or requiring the use to be changed.

Privacy of information Please note that under the Information Privacy Act 2009, Council cannot disclose any information of a personal nature of a third party that may have been collected in the process of investigating your request. This includes:

• Names, contact details or personal circumstances of individuals who are the subject of the complaint. • Names, contact details or personal circumstances of witnesses or other third parties. • Names, contact details or personal circumstances of individuals who have made a complaint.

Contacting us Should you wish to clarify any issues contained in this letter, please do not hesitate to contact Kathryn Sarikas, Development Compliance, on 07 5582 8184.

Yours faithfully

Kathryn Sarikas Technical Officer, Development Compliance For the Chief Executive Officer Council of the City of Gold Coast

(ks;td)

Document: 63344423

- Have your say Council of the City of Gold Coast P 1300 GOLDCOAST (1300 465 326) Customer Service Centres City Panel PO Box 5042 GCMC QLD 9729 Australia E [email protected] Find the closest centre or online service Register at gchaveyoursay.com.au 8 Karp Court, Bundall W cityofgoldcoast.com.au at cityofgoldcoast.com.au/contactus ABN 84858548460 Page 10 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

15 March 2018 Mayor Councillor Tom Tate City of Gold Coast PO Box 5042 Gold Coast Mail Centre QLD 0729

Dear Mayor Tate,

LAWFUL USE OF PREMISES

I acknowledge letter from Dyan Currie of July 17 2017 on your behalf as attached, dealing with lawful use of premises. I further acknowledge that Ms. Currie has left the City of Gold Coast, and it was important that her letter be responded to. This response has been delayed due to perceived sensitivities of council and its Commonwealth Games obligations.

We have had a matter referred to our Association by a UOAQ member who has raised his concerns as to his complaint lodged with council as attached, and the response letter from Kathryn Sarikas of 7 August 2017, that seems inconsistent with the advice Ms. Currie provided.

Ms. Sarikas has advised that a Development Compliance officer from Council “has marked the request as completed because no breach was found.” Ms. Sarikas goes on to state that “because the use of ‘short term accommodation’ was initiated prior to the commencement of the City Plan it has the benefit of existing lawful protection under s260 of the Planning Act, which states that an existing lawful use is protected”.

Claiming that “Uses established prior to 2 February 2016 ‘continue’ to be lawful …” is flawed because ‘continuance’ of a use cannot be lawful unless that use was established lawfully. The ‘Non-Residential Use’ for ‘Accommodation (short term)’ is diametrically opposed to ‘Residential Use’ and is indisputably unlawful in the absence of a Material Change of Use approval.

Ms. Sarikas and the Development Compliance officer have clearly assumed that the usage prior to the commencement of the City Plan was lawful usage, for they have not confirmed that Material Change of Use approval has been provided by council to the lot owners complained of, to establish lawful usage. This prerequisite would be readily available to council officers to confirm as applications for Material Change of Use are made directly to Council and the lack of essential council approvals establish the breach that forms the basis of this complaint.

Page 11 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

To the contrary, the Body Corporate records show no approval to any application of owners in support of any Material Change of Use application and as the Body Corporate has authority and responsibility for the common property, this approval is essential.

In the 4th and 5th paragraphs of Ms. Currie’s letter, she made it patently clear that the process to establish lawful usage is through an approval from council. Ms. Sarikas has provided no evidence that approval was sought or provided.

It is therefore clear that lawful usage has not been established either prior to the commencement of the City plan or since, and the continued usage of lots at 220 The Esplanade Burleigh Heads for short term accommodation must be a breach of council regulations and subject to enforcement action.

UOAQ would seek that enforcement notices for unlawful use of premises be issued by Council to all offending unit owners at the Mediterranean BUP 104532. Failure of council to enforce these regulations would appear to put it in breach of S257 of the Building Act and expose its officers to the penalties prescribed in these provisions.

Why should UOAQ have safety concerns over building misuse

The Lacrosse building fire (Melbourne 2014); the Grenfell Tower tragedy (London 2017) with more than 80 lives lost; The Palace Hotel fire (Childers 2000) with 15 lives lost to name but a few. In each of these examples, mismanagement, overcrowding and failure of local government authorities to enforce regulatory compliance has been at the cost of the owners and occupiers of the buildings. ‘Party House’ regulation is also violated.

Bodies corporate and their committees are powerless to act to protect their interest with regard to unlawful use other than to rely upon their local government authority to uphold its duty of care by enforcing compliance with regulations when breached.

The executive liability provisions of the Building Act 1975 s257 as they apply to s115(1) of that legislation, may expose individual committee members of a body corporate to being personally liable if use of a building does not comply with its BCA classification of use.

Many strata schemes are BCA Class 2 buildings, consisting of sole occupancy units for use as residential dwellings only. Short term accommodation requires a BCA Class 3 building classification. It remains the responsibility of the Gold Coast City Council to enforce such BCA compliance and Council has a ‘Duty to enforce’ compliance upon all building owners and occupiers when a complaint is lodged, that an individual owner defies the provisions of the Building Act. [Ref. Building Act 1975 - s115 as relating to section s257 and s114, s117, s118 and s119].

Sections 256 and 257 clarify that individual executive officers of the GCCC would also fall within such liability provisions through tacitly permitting such misuse by being aware of yet failing to “take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence.”

Page 12 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

What cannot be disputed is the obligation of council to ensure compliance with the Australian building codes as provided for in the Building Act 1975 with regards to both construction and use of buildings for their approved classification.

Responsible council officers are fully aware that a Class 2 building (such as The Mediterranean Towers) is – ‘A building containing 2 or more sole-occupancy units each being a separate dwelling’. While both the QPP definitions and the Macquarie Dictionary (council’s alternative reliance) both clearly define dwelling as being a long-term or habitual residence, the definition of sole-occupancy should not be overlooked either.

Definitions at law hold that ‘sole-occupancy’ provides the right of ‘exclusive possession’ to the property as is generally arranged under a lease of premises. A lease is a written contract between the property owner and the tenant as occupier that provides the tenant protections of privacy, security of tenure, required periods of notice for any encroachment upon peaceful enjoyment along with avenues for remedy should lease conditions be breached by either party to the lease.

By contrast a simple ‘right to occupy’ as arranged when booking holiday accommodation is merely a licence to occupy and provides very few protections or rights for the occupier – to the point the occupier can be evicted without notice, generally involves no bond with no fixed term binding the parties. The arrangement is usually not made for any specific premises and is more akin to the provision of an accommodation service rather than the renting of premises. The terms and conditions as listed on Airbnb, Stayz and the plethora of similar online accommodation booking sites make this distinction (i.e. the arrangement being merely one of a licence to occupy) very clear.

Therefore, apartments in Class 2 buildings used for short-term accommodation are in breach of their classification of use as they are being used for neither sole-occupancy nor as dwellings. The BCA provisions for a Class 2 building are clearly breached and thereby, through s115(1) of the Building Act being an executive liability provision, exposing bodies corporate and individual committee members to enormous risk of loss, damage, and potential charges of criminal negligence.

Councils own Land use categories provide definitive evidence on pages 11 to 12 of “Council of the City of Gold Coast Charges Resolution (No. 2) of 2016” where ‘78 Short-term accommodation’ is categorised ‘Non-residential’ use. The Mediterranean Towers is an approved Class 2 development and not developed to the more stringent Class 3 specifications for use as a Resort/Hotel as both the ‘Non-Residential’ land use category and the Building Codes of Australia state is required.

According to council’s own documentary evidence, any short-term accommodation use in a class 2 building, whether before or after the city plan, is and always has been, by all definitions of Council planning schemes, the Building Act, the Planning Act, the Queensland Planning Provisions, and the Building Codes of Australia - ‘Unlawful Use’.

Page 13 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

Greater clarity on the enforcement responsibility of council and its officers is provided by Section 3 – ‘Duty to enforce’ of the Queensland Building Work Enforcement Guidelines as published by the Queensland Government Department of Infrastructure and Planning. These guidelines specifically addresses achieving compliance of building work with the provisions of the relevant Building and Planning Acts.

If any hint of doubt remains in the mind of any council officer surrounding their duty to act to remedy the unlawful use of residential apartments for short-term accommodation to safeguard the interest and wellbeing of the local community and public at large, attention is drawn to the Sustainable Planning Act 2009 Section 3 – Purpose of Act, and Section 4 – Advancing Act’s purpose.

Yours faithfully,

Wayne Stevens President

Cc. Mr. Dale Dickson, Gold Coast City Council-Chief Executive Officer Cr. Gary Baildon AM, Gold Coast City Hon Mick de Brenni MP, Minister for Housing and Public Works and Minister for Sport. Mr. Brett Bassett, QBCC Commissioner Hon Yvette D’Ath MP, Attorney-General, Minister for Justice and Minister for Training and Skills Mr. Chris Irons, BCCM Commissioner Mr. David Reardon, Director, Office of Regulatory Policy

Page 14 of 25 Unit Owners'9 Association of Queensland Inc. Gold Coast City Council - Mediterranean 7 Date: 7 June 2018 CITY OF Contact Darren Wright Location: City Development GOLDCOAST: Telephone: 07 5582 8184 Your reference Our reference: PN201902/1 6

Unit Owners Association Qld Attention: MrWayne Stevens Level 7/333 Adelaide Street BRISBANE QLD 4000

Dear Mr Stevens

Lawful Use of Premises Property description: BUPI 04532 Property location: 220 THE ESPLANADE BURLEIGH HEADS

you for your letterof15 March 2018 to Mayor Tom Tate regardingthe lawfuluse of premises knownas the MediterraneanTowers for shortterm accommodation.The Mayor has asked that I respond on his behalf

Your correspondence raises matters relatingplanning and buildingmatters, which are responded to be separately below Plannin We reaffirm the City's position outlined in our letter to you dated 17 July 2017. Uses established pri.orto 2 February 2016 continue to be lawfuland cannot be further regulated by the City Plan. This is because the residentialuse definitionsunder the previous 2003 and 1994 PlanningSchemes such as the 'Apartment' definitionunder the 2003 Planning Scheme and the 'MultiUnit Building' definition under the 1994 Planning Scheme. allowed short term stays in additionto long term occupation

At the time the Mediterranean Towers were established, the site was within the Residential Multi Unit Zone of the 1994 Gold Coast Planning Scheme. The strategic intent for the ResldentiaIMulti UnitZone was to implementthe objectivesof the multi-unitdevelopment Preferred DominantLand Uses(PDLU) in.the Strategic Plan. The PDLU for Multi-UnitDevelopment under the 1994 Planning Scheme stated the following

Multi-unitdevelopment areas are limited to those parts of the coastal strip whichare outside the major touristnodes and to those areas set aside for the :development of medium density housing in close proximity to Southport and Harbour Town. It is envisaged that such areas will accommodate both permanent residents and tourists seeking a quiet, low-key holiday environment. Fhe preferred dominant land use is therefore limited to multi-unit buildings at various densities in an almost exclusively residential environment. "

It was envisaged that this zone would predominantly accommodate permanent residents but would also cater for those tourists who sought a quieter. more relaxed holiday environment. Under the 1994 Planning Scheme there was no separate definition for short term accommodation. and as such accommodation that was provided for tourists was considered an appropriate and lawfuluse within the buildings and did not require a material change of use application

Under the 2003 Gold Coast Planning Scheme the Mediterranean Towers site was identifiedin the Tourist and Residential Domain. Within the 2003 Gold Coast Planning Scheme(as was the case in

Document: 69746488

Council of the City of Gold Coast P 1300 GOLDCOAST (1300 465 326) Customer Service Centres City Panel - Have your say PO Box 5042 GCMC QLD 9729 Australia E [email protected] Find the closest centre or online service Register at gchaveyoursay.com.au 8 Karp Court, Bundall W cityofgoldcoast.com.au at cityofgoldcoast.com.au/contactus ABN 84858548460 Page 15 of 25 Unit Owners Association of QueenslandResponse Inc. to Unit Owners Association Qld Gold Coast City Council - PageMediterranean 2 PN201902/1 6 7 June 2018

the 1994 Gold Coast Planning Scheme) there was no separate defined land use of 'short term accommodation'(or equivalent).

Although short term accommodation is a defined land use under the City Plan and is now regulated there are premises within the city, such as the Mediterranean Towers that have been used to provide short stay accommodation to guests before the City Plan commenced. Those premises will have the benefit of existing lawful use protection under s260 of the P/ann/ng Acf 2076 (note that the P/ann/ng .4cf 2076 replaced the Susfa hal)/e P/ann/ng 4cf 2009 on 3 July 201 7)

Under s260 of the P/ann/ng .4cf, an existing lawful use of premises is protected from a new planning scheme or amendment of a planning scheme stopping the use from continuing, further regulating the use or requiring the use to be changed. This means that short term accommodation provisions in the City Plan will not apply to those premises

In this instance the use of short term accommodation for tourists has been ongoing since the buildings were initiallyconstructed, and as such the use of short term accommodation is considered an existing lawfuluse protected under s260 of the P/ann/ngAcf.

Buildin

The Mediterranean Towers were approved for construction 18 December 1995, with Certificates of Classificationissued in 1996 for basement as class 7 and remainingareas as Class 2

The relevant technical document in place at the time for classifying the buildingwas the BCA (Building Code of Australia) 1990 amendment 7

The BCA definitionfor class 2 and 3 buildingshas remainedunchanged since the BCA90 with the exception of detention buildings being included as class 3 building. This means the definition does can be discussed on either the past or present interpretationsof the definition

Discussion in the Unit Owners Association QLD letter of the 15 March 201 8 centres on the classification of parts of the buildingbeing incorrect due to the short term use of some units

The use of sole occupancy a determinant for deciding the class of building is incorrectla sole occupancy unit may be either a class 2 or 3 building. this approach is clarified in the current National Construction Code definition (extracted below) which lists both classes of building under the definitionof a sole occupancy unit. The underline in this extract has been added for emphasis

Sole-occupancy unit means a room or other part of a buildingfor occupation by one orjoint owner, lessee, tenant, or other occupier to the exclusion of any other owner, lessee. tenant, or other occupier and includes- (a) a dwelling:or (b) a room or suite of rooms in a Class 3 buildingwhich includes sleeping facilitiesl or (c) a room or suite of associated rooms in a Class 5, 6, 7. 8 or 9 building;or (d) a room or suite of associated rooms in a Class 9c building,which includes sleeping facilitiesand any area for the exclusive use of a resident.

The BCA commentary is also useful for guidance when considering lengthof stay as a determinate for class of building and advises for "C/ass 3 6u//d/ngs, fhe /engfh of stay /s un/mporfanf'l this further clarifies the length of stay is not a guiding factor.

The BCA clause A3. I 'Principles of Classification ' states "The c/ass//leaf/on of a hu//d/ngorpa# of the building is determined by the purpose for which is designed. constructed or adapted to be used" Classification of a buildingis based on the purpose for which it is designed, constructed or adapted to be used ensuring the building is safe for its intended use Councilrecords show that the buildingslocated at 220-224The Esplanade, Burleigh Heads have certificates of classification for use as Class 2 buildings consistent with planning approval at the time

Document: 69746488

Page 16 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean Response to Unit Owners Association Qld Page 3 PN201902/1 6 7 June 2018

and the use of the buildingsfor residential purposes whether short or long term is not an offence

Planning and building issues are not interrelated and must be considered separately. Definitions used are spe.cificto each environment, this is true for terms such as 'sole occupancy unit' which are defined building terms whilst terms like 'Non-residential ' under a charges resolution has no relevance to determining how a buildingshould be classified under the Building Code of Australia

It does not follow that categorisation under a Charges resolution affects the classification of a buildingunder the BCA

Whilst Council may proceed with compliance matters there must be a clear breach to justify actions undertaken. In this matter there is insufficientevidence for this and the use of tue Class 2 buildings are consistent with planning approval at the time. The use of the buildings for residentialpurposes is not an offence under the Bu//d//7g,4cf 7975. ' "' r- r Contacting us

Should you wish to clarifyl 84 issues contained in this letter. please do not hesitate to contact Mr

Yours faithfully

Michael Moran Manager City Development For the Chief Executive Officer Councilof the City of Gold Coast

Document: 69746488

Page 17 of 25 Unit Owners Association of Queensland Inc. Gold Coast City Council - Mediterranean

5 July 2018 Mr. Michael Moran Manager City Development Council of the City of Gold Coast PO Box 5042 Gold Coast Mail Centre QLD 0729

Dear Mr Moran

Lawful Use of Premises Property description: BUP 104532 Property location: 220 THE ESPLANADE BURLEIGH HEADS

Thank you for your letter of 7 June 2018.

We have considered your letter and the arguments you have put regarding use of units in the Mediterranean Towers for commercial short-term accommodation.

Given that past city plans allowed short-term stays, building classification under the Australian Building Code established the intended use of the building. You acknowledge that the residential component of the buildings, were classified as Class 2, thereby establishing the intended use of Mediterranean Towers. Should the buildings have been intended to be used as short-term stays, a Class 3 classification was necessary. In the event that the intended usage changed from the time the Class 2 classification was issued, a Material Change of Use approval from council is required to undertake short stay usage.

In the absence of a Material Change of Use approval, short stay usage must be unlawful, and the arguments in our letter to council of 15 March 2018 remain.

The building is used for commercial short-term accommodation in breach of section 115 of the Building Act and the definitions in the Planning Regulation 2017 as attached are taken into account, and such use should be regulated accordingly.

Yours faithfully

Wayne Stevens President

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Pertaining Law Class 2 Building Classification Lawful Use

Building Act 1975 Chapter 5 Inspections, building classification and the use of buildings Current as at 1 January 2018 Page 97 Authorised by the Parliamentary Counsel 115 Compliance with relevant BCA and QDC provisions for occupation and use of building (1) A person must not, unless the person has a reasonable excuse, occupy or use a building if the building does not comply with the following for the occupation or use— (a) any relevant BCA provisions for its class of building; (b) any relevant QDC provisions for the building. Maximum penalty—165 penalty units. Note— This provision is an executive liability provision—see section 257.

[s 257] Building Act 1975 Chapter 10 General provisions Page 296 Current as at 1 January 2018 Authorised by the Parliamentary Counsel 257 Liability of executive officer—particular offences committed by corporation (1) An executive officer of a corporation commits an offence if— (a) the corporation commits an offence against an executive liability provision; and (b) the officer did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence. Maximum penalty—the penalty for a contravention of the executive liability provision by an individual. (2) In deciding whether things done or omitted to be done by the executive officer constitute reasonable steps for subsection (1)(b), a court must have regard to— (a) whether the officer knew, or ought reasonably to have known, of the corporation’s conduct constituting the offence against the executive liability provision; and (b) whether the officer was in a position to influence the corporation’s conduct in relation to the offence against the executive liability provision; and (c) any other relevant matter. (3) The executive officer may be proceeded against for, and

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convicted of, an offence against subsection (1) whether or not the corporation has been proceeded against for, or convicted of, the offence against the executive liability provision. (4) This section does not affect— Building Act 1975 (a) the liability of the corporation for the offence against the executive liability provision; or (b) the liability, under the Criminal Code, chapter 2, of any person, whether or not the person is an executive officer of the corporation, for the offence against the executive liability provision. (5) In this section— executive liability provision means any of the following provisions— •section 114A(2) •section 115(1) •section 231AL(6) •section 232(1) •section 245B(4) •section 245L. executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

Planning Act 2016 Chapter 5 Offences and enforcement Page 154 Current as at 9 May 2018 Authorised by the Parliamentary Counsel 164 Compliance with development approval A person must not contravene a development approval. Maximum penalty—4,500 penalty units.

165 Unlawful use of premises A person must not use premises unless the use— (a) is a lawful use; or (b) for designated premises—complies with any requirements about the use of the premises in the designation. Maximum penalty—4,500 penalty units.

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Risk and Liability Exposure

1. The building insurances held by the body corporate placed in jeopardy. The building is only insured as residential premises and NOT for commercial use as tourist accommodation.

I. The note in part 9(c) above tends to indicate council awareness if not complicity in ignoring the issue - possibly due to the higher revenue of the rating category.

II. A propensity for delaying the issuing of show cause notices to offending rate payers by issuing notices to the relevant bodies corporate of schemes. The bodies corporates have committed no offense and hold no authority to direct or enforce how a lot owner may use their property. A body corporate can only rely upon the local government authority to take appropriate action against any offending lot owner. Furthermore, it is not the responsibility of bodies corporate to enforce or give notice of such matters.

III. Council responses to similar previous complaints assert that while council can readily identify buildings engaged in short term accommodation via online booking sites, it has no way of identifying precisely which units are the offending units for sending an M.C.U. show cause notice to the offending lot owner. This complainant believes this to be a false and diversionary tactic of council designed to either avoid or delay prompt and proper action being taken to enforce such building compliance. The complainant has clearly established that the offending units in this complex are readily identifiable via council’s own records of rating category compared to the building classification. (see attached listing)

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PENALTIES FOR MISUSE OF BUILDINGS

GCCC's written advice confirms that if a lot owner in a Class 2 building wishes to use their lot for short-term accommodation, they are required to make application to the GCCC seeking a development permit for a Material Change of Use of their lot pursuant to City Plan 2016. Such development is deemed to be code assessable and carries a non-refundable application fee.

In addition, lot owners are advised that UOAQ have confirmed that the practice of using lots for short-term accommodation without the required development permit constitutes a development offence under the Planning Act 2016 (see Chapter 5, Part 2, in particular sections 164, Compliance with development approval, & 165, Unlawful use of premises. Lot owners are advised that development offences under these sections carry a Maximum penalty of 4,500 penalty units which equates to $567,675.00 per offense.

Sections 256 and 257 clarify that individual executive officers of the GCCC would also fall within such liability provisions through tacitly permitting such misuse by being aware of, yet failing to “take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence.”

Misuse of buildings that attract such substantial penalties, only reviewed in 2016, indicate governments consider misuse must be dissuaded. Over recent years both State and Local Governments have turned a blind eye, to be generous, to deliberately disregarding these legislative provisions.

Is the state of Qld genuinely subject to the Rule of Law, or are these penalties simply legislative window dressing. Is the Qld Government, as responsible for this state legislation, serious in insuring the use of strata homes in our community are protected in the interests of owners as the legislation suggests. WHICH MINISTER AND STATE GOVERNMENT DEPARTMENT WILL HOLD ITSELF RESPONSIBLE TO SEE THESE LEGISLATIVE PROVISIONS UPHELD, AND LOCAL GOVERNMENT COMPELLED TO ENFORCE THE LAW.

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