Environment Court gives green light to Airbnb in Christchurch
Environment Court gives green light to Airbnb in Christchurch
Thursday 23 April, 2020
A Christchurch resident has succeeded in the Environment Court against a decision by the Christchurch City Council to decline to grant resource consent for her to rent her home out on Airbnb.[1] The house was located in an area of Christchurch zoned Residential Suburban and the activity was a discretionary activity under the District Plan. Guest accommodation is not a residential activity, so the owner of the house required resource consent.
Section 104 of the Resource Management Act 1991 (RMA or Act) provides that when considering an application for resource consent and any submissions received, the court must consider:
- any actual and potential effects on the environment of allowing the activity;
- the relevant provisions of the Christchurch District Plan; and
- any other matter relevant and reasonably necessary to determine the application.
The relevant provisions of the District Plan are set out below. The key issue was whether the word “restrict” meant “limit” or “prevent”.
14.2.6 Objective - Non-residential activities
- Residential activities remain the dominant activity in residential zones, whilst also recognising the need to:
- provide for community facilities and home occupations which by their nature and character typically need to be located in residential zones; and
- restrict other non-residential activities, unless the activity has a strategic or operational need to locate within a residential zone or is existing guest accommodation on defined sites.
14.2.6.4 Policy - Other non-residential activities
- Restrict the establishment of other non-residential activities, especially those of a commercial or industrial nature, unless the activity has a strategic or operational need to locate within a residential zone, and the effects of such activities on the character and amenity of the residential zones are insignificant.”
In Fright v Christchurch City Council,[2]the Court held that “restrict” meant “limit” but the Commissioner appointed to hear this resource consent application decided that it meant “prevent” if the applicant couldn’t show a strategic or operational need to locate within a residential area.
The Environment Court disagreed with the Commissioner’s interpretation. The Court indicated that “restrict” meant “limit”, so that if an applicant could not bring themselves within the conditions for non-residential activities, the Council could decline the application, but it was a matter of judgment (based on the circumstances of the case) whether it should.
The Court also considered that this particular provision of short-term accommodation was residential, not commercial, in nature, even if a tariff was charged for the accommodation. The activity was of a scale consistent with the outcomes for Residential Zones and the Court agreed with the planners that the effects would be less than minor. The Court also considered that the appellant had an operational need to operate within a residential zone, arising from the character and amenity afforded by residential zones, noting that “need” should be interpreted as meaning “requirement”. Accordingly, the Court granted the resource consent.
How should councils respond to growing Airbnb demand?
The Court noted the Council’s concerns that the plan provisions might be inadequate to respond to a high demand for Airbnb accommodation, but considered that the Council would be better to initiate a plan change to respond directly to any issues created by significant growth in Airbnb numbers in Christchurch, rather than straining to adapt the plan's current provisions to the situation. This approach may strike a chord with cities such as Paris, Barcelona, and Santa Monica which have all introduced restrictions on Airbnb listings.
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