[Anita Gillies]

Hi all
Property operating as a resort has now ceased business and the owner is now exclusively using the property as their primary residence. Last approved use is as a tourist facility. Residential use is permitted with consent. Can the rating category be changed from business to residential without the owners applying for DA approval for consent to change from a business use to a residential use.
Thanks

[Robert Hay]

Hi Anita

I take it the owner has made a request for a change of categorisation.

In the 1st instance I would contact regulatory and get them to investigate why the owner hasn’t applied for consent and they can follow that up.

However as long as Section 516 is being complied with the category should be residential as 516 doesn’t rely on the DA consent.

Not applying for consent and it’s enforcement is another matter for Council.

Happy to hear other people thoughts.

Hope this helps.
Robert

[Andrew Butcher]

Hi Anita

I agree with Robert’s post above and would check with the team that looks after approvals at your council, just in case there is something not obvious.

Regards,
Andrew

[Anita Gillies]

That’s great. Thanks so much for your response Robert and Andrew.

[Trevor Holland]

Bit odd. Haven’t come across this situation before.

Might be overthinking this but I am wondering whether categorising the land as residential without consent being granted could cause problems later on. Don’t know enough about planning to answer one way or the other.

Definitely check with your planning section.

If they confirm that planning consent is required for residential use I would insist the owners arrange for this to occur prior to re-categorising and rating residential.

Regards
Trevor

[David Grima]

Hi all,
I wouldn’t allow the category change to residential as DA consent is required.
Early on in my career I had a similar situation but where the owner commenced operating a business (can’t remember what type) and I changed the category to business but the owner’s hadn’t obtained consent.
When our regulatory services finally took action, it ended up in Court and we got in a little strife as my change of category to business was seen as a quasi approval of the use by Council.
Dave

[Robert Hay]

Hi Everyone

This is what happens all the time due to incorrect actions of other Departments within Council and then the correct action taken by Rates Department when these situations occur.

Quasi approval of the DA doesn’t mean that the sections relating to categorisation had not been followed correctly 516 doesn’t rely on zoning except where it is vacant land.

I’ve heard of another case where an individual had illegally converted their business unit into residential accommodation without consent, the planning department decided to do nothing. Under 516 they were compliant. Based on this they were made residential. Further there can be cases where retrospective consent is granted.

As recent caselaw has identified it is based on the “current use” of the land that is the determining factor.

Dave if possible can you get a copy of the court case and this would be great to include on the website.

Robert

[David Grima]

Hi Rob,
Sorry on 2 counts:
1 that I didn’t click the subscribe button so didn’t get notified that you logged a questionsm and
2 the court case was many moons ago so I don’t have the details.
We actually won the case I recall but the judge made mention of the change in rating category and our solicior (think it was Abbott Tout) advised against changing the category without consent.
So when I receive a change of category application now, I ask Development whether a change of use (or other application) is required, if no, I change the category and if yes, I reject the application and refer them to Development.
Haven’t had any issues since and I think it is a reasonable approach to take.
Dave

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