Hans Lovejoy
Byron Shire Council has abandoned compliance against holiday letting owners, with Cr Paul Spooner telling The Echo that there were no ‘results being achieved by sending in the lawyers.’
The Echo understands that the last case pursued was on February 28, 2013, where Council appeared to have been awarded legal costs against a Ewingsdale holiday-let owner.
From a report from the ordinary meeting of February 28, 2013, (page 52) it claims, ‘Council’s legal costs will exceed $50,000. Staff will take immediate steps to recover those costs.’
So given that costs are generally awarded to the successful party in a court case, why has there been no appetite for compliance?
Circumstances
Council’s legal services co-ordinator Ralph James explained that, as a general rule, a successful party to proceedings in classes one, two and three of the Land and Environment Court would not be awarded their appeal costs.
Mr James told The Echo, ‘A holiday-letting case would normally be taken in class one’.
‘Unlike ordinary litigation where “costs follow the event”, the Land and Environment Court Rules 2007 provides that the Court may only make a costs order where it is fair and reasonable in the circumstances. Much will depend on the circumstances.
‘The Court has pointed out that if there were no reasonable basis for the appeal in the first place, it may be fair and reasonable for a costs order to be made against the discontinuing party.
‘On the other hand, if evidence emerges during the course of proceedings and as a result the applicant decides there is an increased risk in the litigation, it may well be sensible for the applicant to discontinue. Imposing a costs order in these circumstances would only serve as a disincentive for an applicant to discontinue,’ Mr James stated.
Unsuccessful
Cr Paul Spooner told The Echo, ‘The last council decided to stop chasing people through the courts in regards to the use of properties for holiday letting because it had not been successful and was costing a heap of money.’
‘Council decided that a more productive path to follow was to develop a management strategy for holiday letting based on regulations. This was then developed in consultation with stakeholders from resident organisations and letting representatives. The developed strategy was adopted by Council and sent to the state government for consideration. The details of this proposed management strategy are still being negotiated.
‘While legal action has been paused, for the planning matters action is still available against holiday lets where there are amenity impacts on local neighbours or fire safety issues.’
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