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January 26, 2022

Use of legislation against holiday letting too punitive say councillors, staff

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It is estimated that 1,500 homes zoned residential are now let full-time as tourist accommodation. (file pic)

Hans Lovejoy

A plan by former mayoral candidate Matthew Hartley to shut down ‘illegal’ holiday letting has been rejected by both a Labor and Green councillor.

Under 119B and 119C provisions within the Environmental Planning and Assessment Act 1979, there appears to be the power to appoint and empower a special investigative and prosecutorial team to pursue holiday letting.

Hartley says that with an estimated 1,500 homes zoned residential now let full-time as tourist accommodation, action via legislation should be pursued immediately.

But councillor Paul Spooner (Labor) told Echonetdaily that ‘setting vigilante groups onto holiday letting operators is not the way to go.

‘We know it’s affecting communities around the world, and I can’t see why we are not having more of a conversation with the state government around this.

‘While we are vocal about this locally, we really haven’t taken our voice to Sydney.

‘We know homes are being bought in the shire for the purpose of just being an Airbnb proprty. It’s a business, and as a shire that experiences this issue acutely, we need to be a key voice in NSW parliament.’

Cr Spooner says there is a strong case for the state government to implement Airbnb’s tax collection scheme, which is enacted in the US, France, Netherlands, Portugal and India.

Greens councillor Michael Lyon told Echonetdaily he believes a registration fee for holiday lets ‘is doable’. ‘We are still looking at annual fees for registration and how to build a solid case of how holiday letters will pay. I invite Matt [Hartley] to work with us on how to make compliance work without those extreme measures.’

Meanwhile Council’s legal services co-ordinator Ralph James says such action, ‘could result in Council being locked into constant and expensive litigation.’

He told Echonetdaily late last year that the risks and results of such litigation would be counterproductive to achieving a long term strategic planning and compliance solution.

‘Allowing planning instruments for Short Term Rental Accommodation (STRA) is likely to enable neighbours and the community to decide where and how STRA premises can be located and conducted,’ he said.

However, Mr James reaffirmed that instances of safety and environmental harm would have priority, be investigated and where substantiated, enforcement action taken.

Hartley maintains that the activity is still illegal, despite any tax that is imposed.

 


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14 COMMENTS

  1. Holiday letting is still a prohibited and illegal activity in Byron Shire under the current LEP. In 2012/13, Council successfully prosecuted a Ewingsdale holiday let in the Land and Environment Court (LEC) and it ceased operation. This prosecution was brought by Council’s legal governance. They know that holiday letting in residential zones is illegal. On February 28, 2013 a majority of councillors voted to defer prosecuting another holiday let in the LEC. There have been no further prosecutions and at the April 30, 2015, meeting Council voted to instruct compliance not to pursue further action in the LEC. The legality of this measure is doubtful. The DPE in their August 2015 Gateway Determination on the STRA strategy stated “the planning proposal is silent on the legality or otherwise of current operations”.
    There are numerous LEC decisions that clearly indicate that holiday letting is illegal in residential zones. Some of these are Sydney Council vs Australian Executive Apartments (Bridgeport case 2015), Dobrohotoff vs Bennic (Terrigal case 2013), Foster vs Sutherland Council (Cronulla case 2001), Sydney Council vs Waldorf Apartments (2008) and the benchmark Blues Point Tower case. There are many other cases that show this illegality.
    Holiday letting is breaching Section 76B of the NSW Environmental Planning and Assessment Act (1979), which states:
    “Development that is prohibited
    If:
    (a) an environmental planning instrument provides that specified development is prohibited on land to which the provision applies, or
    (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land.
    Section 126 of the Environmental Planning and Assessment Act 1979 provides that the maximum penalty for illegal development or building works under the Act is a fine of $1.1 million and a further fine of $110,000 for each day that the offence is continuing.

  2. pretty simple really

    council has a shortage of money for various reasons.
    holiday/tourist accom raises the values of land.
    council makes majority of its money from rates, based on a percentage of land values.(an economic rent if you like to call it)
    the argument that they are under pressure because of tourists is false. higher land values…. more revenue!!
    there is miss management and missed opportunity due to a few opinionated lower the draw-bridge mentality people. the lawyers/beaurocrats will love this as they will be the big winners.

    smarter to legalise/legislate and collect taxes/fees to benefit the community/environment etc.
    reality is that its a beautiful place within hours of major cities via road or air and people want to come here..
    this will not be stopped, just manage it properly and all can enjoy a well managed sustainable and prosperous area.

    try to find some type of positive out of it. you have this problem because you are lucky enough to live in such a beautiful environment. become a great positive model not a “surfers paradise” or a “greeny basket case”.

    … you do not own byron matt….it obviously makes you very angry …. maybe you should live somewhere else…that makes you happier, its a big old world out there..put it into perspective sometime.

    hope something good comes of all this eventually…

    cheers
    larry

  3. This whole situation is ironically laughable. Any time one of the Land Developers or one of the (overabundant) Music Promoters don’t get what they want from BSC, it’s off to LEC to overturn BSC’s decisions.

    But when Byron Shire Council chooses to squeeze the approx. 11,000 legitimate rate-payers for more and more and more money, they claim they’re unable to use these Legal Entities to ‘help’ them tax, levy, or otherwise collect additional revenues.

    It’s the businesses and private individuals who should be carrying their fair share of the cost to infrastructure that the million or so tourists impose on the Shire! And, in the case of individuals holiday letting in Residential Zones, I fail to believe BSC cannot do anything except claim “We don’t want to encourage vigilantism!” Do they expect irritated residents will start burning holiday houses, Lynch the vacationers in the street and tar & feather the holiday house’s owners?

    It’s already well known that LEC-by way of several established legal precedents- do not tolerate holiday lets in Residential areas…So Byron Council- WHAT’S THE PROBLEM? Perhaps to many Councillors already have a pecuniary interest in this activity?

    In any case, a small group of Rangers, hired to canvas these neighbourhoods, could easily ‘drop in’ to meet the tenants…or owners. if the owners are there-no problem. if Holiday Letters are there-Problem to be sorted by the Rangers. Don’t fine the tourists- fine the property owners a substantial wack. For noise complaints, use a “Three Strikes-You’re OUT” policy with graduated fines.

    First fine:$500- Second fine: $1000- Third and additional Fines $2500 per occurrence. Have the responding Police or Rangers shoot two minutes of video of the excessive noise, bad behaviour, etc. AND also get a signed affidavit then and there from the annoyed neighbours to present in court. Doubtful a Court would nullify both video and an affidavit secured by a Peace Officer. The collected fines would easily cover the Ranger’s salaries too.

    It’s ABOUT TIME a god portion of Byronians stop believing they’re “So Special” and “Above the Law…” They all knew the deal when these properties were purchased and/or turned into Holiday Lets. Also, like in the USA, remove any Capital Gains tax relief when the owners want to sell the property.

    And make it a juicy, easily enforceable crime if holiday let owners- legit or not- and the on-line Holiday Rental Services like AirBnB do not report ALL income to the ATO. Too many owners of these illegal rentals are cruising on Black Money payments while purporting to be broke and collecting Centrelink benefits like New Start and The Age Pension while making $50k-$100k a year!

    It makes me puke that BSC claims the Shire is broke and they need to hammer the legit Rate Payers – when we have one of the highest quantities of visitors in Oz dropping mucho bucks for everything from food, accommodation, grog, and too many Music Festivals, etc. And the profits are seen by a select few that BSC has apparently deemed to be ‘Off Limits” in trying to have them pay their fair share or cease illegal activities.

    As a rate payer, why should I pick up the holidayer’s intrinsic costs to BSC for ‘degradation of infrastructure and services’ when I’m not even out partying with them?

  4. my roommate was asked by his girlfriend if he would sign a lease on a byron house so that she could rent it out on air b and b. she had already signed one lease herself and did not want to sign another.
    she said she would take care of the ads and cleaning and give him a share of the profit. she claimed she made $10,000 last 1/4 on the first house. my roommate was heading overseas, so declined.
    she will probably find another person to do the same deal.

    shameful situation that byron councillors allow this to happen. i remember duncan day saying in the echo that POWERFUL INTERESTS would not let taxing airbnb and holiday lets in byron.
    to paul spooner, vigilante groups form when the law does not due its duty. like now in byron.
    there is already laws against holiday letting. so legally following the law does not make a vigilante group.
    unless we decide to form a real vigilante group to deal with holiday letting as council does not have the heart to do so.

  5. I take exception to Councillor Paul Spooner’s comment “that ‘setting vigilante groups onto holiday letting operators is not the way to go”. Cr Spooner should be reminded what the definition of vigilante is. It is a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate.

    Is Cr Spooner equating the many who are opposed to holiday letting to vigilantes? They only choose to use their democratic right to speak about the illegality of holiday letting that has been demonstrated by the many successful Land and Environment Court results. These LEC cases show that holiday letting and permanent residency in residential zones is fundamentally incompatible.

    Are residents who are neighbours of the many poorly managed holiday lets that disrupt residential amenity and lodge complaints to Council and Police, vigilantes?

    Cr Spooner needs to choose his words carefully. He needs to apologise to the many residents that only want Council to uphold the Planning Laws.

    • Totally agree with your comments, Harry. I would like to comment on another Paul Spooner statement. He said, in relation to holiday letting, “We know it’s affecting communities around the world, and I can’t see why we are not having more of a conversation with the state government around this.” This statement is hypocritical.

      Cr Spooner had the opportunity to lobby the State Government last year by submitting a submission to the Parliamentary Inquiry into holiday letting and speaking at the public inquiries. He did not. Planners from Byron Council certainly did.

      I wonder if he has lobbied our local State MP or any others about maximising protection of residential amenity from out of control holiday lets.?

    • I have had a good laugh at Paul Spooner’s inane comment ‘setting vigilante groups onto holiday letting operators is not the way to go.”

      Cr Spooner has probably received this comment from a real estate agent who has a vested interest in reaping the rewards from the management of illegal holiday lets.

      I have not heard of any neighbours of illegal holiday lets taking illegal action and becoming vigilantes. There have been some neighbours of a problematic let who have used their right and spoken to the local owner who poorly manages the let. They are sick of the screaming, yelling, shouting and shrieking at all hours from the often drunken occupants. The owner makes no effort to control the problems. These neighbours have no confidence in the Police or Council to solve the damage to their residential amenity that regularly occurs. This is not vigilante action Cr Spooner.

      What exactly has Cr Spooner done to protect the residents who live beside out of control holiday lets? He would think differently if he lived beside one.

  6. When ‘activism’ is consumed by anger it’s self defeating. Ranting, raving, attacking those in public service is not only ineffective, it has the opposite effect. People back off and think WTF?
    Too many hot -heads here who think they are agents of social change. But all they achieve is people tuning out.

    • Michael McDougall, I completely disagree with your assertions. There has been no ranting or raving in these comments. There have been no slanderous attacks on people in public positions. In our democracy we are able to put forward a different view to others, as long as it is backed up with evidence and reasonable opinion.

      Tom Tabart’s “stoush” with Simon Richardson and Ken Gainger is just another different opinion being put forward. Richardson and Gainger may not like the criticism that they hear, but the ratepayers have the right to hear it. This is akin to a large number of people criticising Donald Trump’s actions and statements. Trump doesn’t like what he hears but there are valid reasons for the criticism

  7. I am hesitant to enter this discussion but there is a lot of misinformation out there on this topic. Especially around the practitioners of holiday letting. To lump all of holiday letters into one basket is not accurate or fair. Also the profits and incomes bandied around give a false impression. Yes there are places in Byron Bay CBD area where large money is paid per week at peak periods. I agree that non resident landlords who own these properties and run them as a permanent business need to be licensed and fairly taxed by BSC so they can contribute to overloaded infrastructure costs. Most places outside of Byron (and bits of Brunswick Heads) will not gain the return on investment to be run as a year round holiday let as opposed to permanent letting. People with houses in Mullum, or Bangalow often have a studio or granny flat that is holiday let and that can be a good supplement to an income. A lot of people (like myself) pack up and let over a week or two at Xmas or easter and go somewhere else. What could be the harm in that? people who want to completely shut down HL have not fully thought thru the outcome of that. Byron Bay would quickly be transformed into 3 story brick blocks of units and motels and it would loose its small beach town charm. Then no one would want to come here. Is that what people want? If so, I agree with the previous contributor – there are a myriad of coastal country towns along the east coast of Australia that may suit them better.

    • Michael, you fail to recognise that holiday letting is illegal and an affront to the planning laws of NSW.

      When you illegally holiday let your principal residence for 1 to 2 weeks a year what contingency plan do you have in place so that the occupants don’t damage the residential amenity of the neighbourhood? Do you leave contact details for your neighbours if there is a problem with the occupants? Or are the holiday let occupants allowed to run amok for 2 weeks and you only find out when you return?

      • Hi David,
        Thanks for you concern. I have been privately letting my house when we go away for the whole 7 years we have lived here. I have never had any problem. Except for once when a group was excessively noisy. I gave them a bad revue and they will not be able to rent again. My neighbours are aware and (except for that one time) is never an issue.
        I pay tax on the income. I would happily pay a small fee or percentage to BSC if there was a structure set up where that could happen.
        Michael

        • To michael murray. Good on you for making a little effort to control the problem holiday let occupants. Many holiday let owners and managers don’t. You have not answered all of David’s questions. He asked what plan you had in place to control the problem occupants. You say that you have had only one major problem with holiday letting. This is probably due to luck. Did you evict them at the first sign of trouble or did they continue to disrupt your neighbours? Did you apologise to your neighbours for the disruption. Most owners/managers don’t. Do you have a local manager who will act for you and is capable of eviction ? Or do you think that it is alright for your neighbours to put up with the disruption caused by a lot of holiday let occupants who are in holiday mode and strangers in your house?

    • Michael Murray, 3 story blocks of units would not be allowed in R2 residential zones where illegal holiday lets are located. Your assertion that if people are don’t like the illegal holiday letting then they should pack up and leave is ridiculous and immature.

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