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Is holiday letting really illegal?

Syd Craythorn, Byron Bay.

‘Holiday letting’ seems to be a term used mainly by the real estate industry, not the planning law fraternity. To my knowledge there is no definition of ‘holiday letting’ in either the state or local planning instruments.

Those asserting that ‘holiday letting’ is illegal appear to rely largely on the Land and Environment Court (NSWLEC) case of Dobrohotoff v Bennic, where Justice Pepper found that a dwelling said to be used for short term holiday rentals was in fact used for a separate and independent planning use that required development consent.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2013/61.html

I read this case to be about a particular dwelling, not about all dwellings providing short- or long-term accommodation. I believe her honour was correct in her finding, that the large house in question was not being used principally as a dwelling, but principally as a venue for rowdy ‘bucks and hens’ nights, which included ‘topless entertainers and escorts’. Her honour explained the shades of grey between a dwelling used permanently or part time by families, by friends, or even businesses providing holiday opportunities for staff, all of which are ‘residential’ uses; but in the case in question a line had been crossed and the principle use was no longer a residential use.

It would be interesting to know how many of the 1500 local dwellings that are claimed to be offering short term accommodation, about half the dwellings from Ewingsdale to Broken Head, fell outside the interpretation of a residential use, as described in the above LEC case.

So, to address what are probably a small number of poorly managed rental properties, we appear to be proposing to remove the means by which many locals provide themselves with affordable housing!

I for one would be pleased to learn that the Council chose not to waste money on frivolous legal proceedings, but if there is someone out there who feels otherwise, they should not be restrained by a lack of authority; any person has the right under Section 123 of the EP&A Act to redress a breach. Lodge your papers with the court, set aside $25K, and wait a year or more for your hearing date!

 


2 responses to “Is holiday letting really illegal?”

  1. Harold says:

    Mr Craythorn needs to read Justice Pepper’s judgement more closely. I have selected some of the relevant points from the 100 items listed from her judgement. The judgement was done on existing Planning laws.She stated that STRA is illegal and prohibited. In Byron Shire it remains illegal until the LEP is changed. Breaking the planning laws does not amount to a frivolous offense.

    ” The Dobrohotoffs have complained to the Gosford City Council (“the council”) about the use of the property in this way, but to no avail. This is so notwithstanding that, somewhat astonishingly, the council appears to have acknowledged that short term holiday rental of residential premises may be a prohibited use under the relevant planning instrument, the Gosford Planning Scheme Ordinance (“the GPSO”).

    Upon the proper construction of the GPSO as at 8 February 2013, the use of the property as short term holiday rental accommodation is prohibited. This is principally because the use of the property is not sufficiently permanent to comprise a “dwelling-house” for the purposes of the relevant zoning under the GPSO.

    The Current Use of the Property is Prohibited Within the Zone Because it is Not for the Purpose of a “Dwelling-house”

    Furthermore, when considering the first limb of the definition of “dwelling”, regard must be had to the notion of “domicile” contained within it (820 Cawdor Road at [24]), and the critical element of permanence. Inherent within the term “domicile” is, as a long line of authority in this jurisdiction has established, the notion of a permanent home or, at the very least, a significant degree of permanence of habitation or occupancy

    .In the present case, the facts disclose an absence of any permanent habitation or occupation. Tenancies of no more than a week are antithetical to this concept.

    In summary, the current rental of the property as holiday accommodation for periods of a week or less to persons using or occupying it other than in the ordinary family or household way, does not constitute a “domicile”, does not constitute a “dwelling”, and therefore, does not constitute a “dwelling-house” for the purpose of item 2 in the 2(a) Residential Zone. The use of the property not being otherwise permissible, it is prohibited within the Zone and it constitutes development in breach of s 76B of the EPAA

    The breach by Ms Bennic offends and undermines the planning regime of the Gosford LGA and ultimately of the State.”

  2. Tom Tabart says:

    Yep HL is illegal in Residential Zones in Byron Shire (and most other places in Australia). The problem, as with most matters of ‘compliance’, is lack of resources, lack of political will/courage, power of well-resourced lobbying playing to conservative political ideology, political donations, bureaucratic foot-dragging, conflict of interest and pure laziness.
    Not apportioning the above factors in Byron but do recall vividly being advised by council staff (some years back) that HL internet advertising was not legal proof of it happening and that council would need to employ private detectives for extended periods to gather enough evidence for a prosecution but there was no real prospect of success with available resources.
    The mayor sited a number of legal precedents of successful prosecutions elsewhere and these continue to accumulate (see above). Never the less it seems council staff has again succeeded in ‘hosing it down’.
    “The more things change…”

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