A farewell to the party house?

The use of short term holiday accommodation continues to be the subject of media attention, with ongoing tensions on the rise between holiday makers and local residents concerning the behaviour and activities of some occupants while staying at such premises, which premises in South Australia, unlike Victoria, NSW, WA and Tasmania, remain unregulated. It is alleged that residents who live next door to “party houses” have had repeated handballing of these ongoing issues between the South Australia Police and local government.

The Short Term Holiday Rental Accommodation Bill 2021 (Bill) was introduced into Parliament in early June 2021 with the aim of such legislation being to provide oversight and regulation of the short term holiday rental property market and to provide protections for neighbouring residents, among other matters.

In its present form, the Bill proposes to create a register of residential premises used for short term accommodation, which register will be established and maintained by the Commissioner for Consumer and Business Affairs (Commissioner). A person (including a booking platform provider (i.e. Airbnb, Stayz etc) who provides or offers to provide such accommodation at residential premises for fee or reward, must register those premises or face a fine of up to $5,000. The register will include details about the premises, including the name and address of the owner, the number of beds, the maximum number of persons that may stay and the number of car parks on the premises.

Short term holiday rental accommodation is defined in the Bill as rental accommodation at a residential premises for a period not exceeding a consecutive 30 day period or one month.

The Bill, if passed, provides for the creation of a Code of Conduct to be observed by short term holiday rental property occupants which will be established by the Commissioner following consultation with the LGA, which must be reviewed every three years.

The Bill also seeks to establish a compensation and civil penalties scheme in relation to activities undertaken at such premises. A person who suffers a loss of amenity caused by the conduct of an occupant at a short term rental property may apply to the South Australian Civil and Administrative Tribunal (Tribunal) for compensation, with the maximum amount currently capped at $2,000.

In addition to the compensation making powers, civil penalties, not exceeding $1,250, may also be imposed by the Tribunal against occupants who breach the Code. A provider and occupant will be jointly and severally liable for any order made by the Tribunal in relation to compensation or the imposition of a civil penalty, except in specific circumstances where the provider of the accommodation can satisfy the Tribunal that they have taken all reasonable steps to prevent the occupant from engaging in the conduct in question.

Naming and shaming of repeat offenders is also proposed under the Bill wherein the Commissioner may make a public statement identifying and giving warnings or information about occupants who have been the subject of any orders of the Tribunal on 2 or more occasions.

If passed through the Parliament, it is suggested that if severe interruption to a neighbourhood is caused by the occupants of such premises, that there will finally be a way that this can be addressed at law.

In 2016, the Government issued an advisory notice in relation to whether short term accommodation at a lawfully approved dwelling constitutes a change in land use. Such advice at the time was that it did not constitute a change in land use and that no development approval was required unless the dwelling was to be physically altered, where a Building Rules consent may be required. Whether such advice is legally correct is a question which is yet to come before the Courts. The definition of dwelling under the Planning, Development & Infrastructure Act 2016 remains unchanged, with a fundamental element of such a land use being a self-contained residence, which contemplates a degree of permanency as opposed to transient accommodation, such as short term holiday accommodation, which the advisory notice fails to address.

The debate on the Bill was adjourned on 9 June 2021.

For further information on the material contained in this update please contact Claire Ryan on +61 8210 1294 or cryan@normans.com.au.