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October 16, 2021

Tweed holiday-let owners claim discrimination by council

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La Masion Pacifique (aka 6 Beason Court, Casuarina) has closed its doors to short-term holiday-let tenants following a Tweed Shire Council action. Photo lamaisonpacifique.com

Owners of a Casuarina property that bills itself as offering ‘private beach-front luxury for the discerning traveller’ are shutting their doors, claiming they have been ‘specifically and … unfairly… targeted for legal action by Tweed Shire Council (TSC) as a result of complaints’.

Sally and Chris Johannsen, owners, La Maison Pacifique, say their property at 6 Beason Court is one of 15 that TSC’s May 3 Planning Meeting identified as short-term holiday lets (STHL) ‘operating without approval’.

Of these, the Johannsens say only their property has been targeted for legal action to end their operation.

‘We are devastated to advise that the Tweed Shire Council has issued us with a prohibited use notice as a short-term holiday let . We will be closing, effective immediately and permanent letting our beautiful property,’ they said in a statement last week.

‘We have been specifically (and we feel unfairly) targeted for legal action by TSC as a result of ‘complaints”,’ they wrote.

‘By way of clarification, our complaints have been unable to be substantiated by either any police action, (including noise or parking infringement notices), nor (in the case of noise) been outside the allowable hours set by TSC.

‘We employed Tweed Coast Security to monitor our property and guest behaviour (since December 2014) and no adverse reports have been filed by them – ever. We are the victims of a vexatious campaign by two neighbours who are vehemently opposed to STHLs in their street.

‘We are at a loss to understand TSC’s actions given that STHLs allow them to follow their own… policies in relation to tourism and employment and are an excellent way for them to meet their strategic goals… particularly given it appears that no new large tourism accommodation infrastructure projects appear to be on the horizon. Tourism is the largest industry in the Tweed Shire,’ they wrote.

‘Separately, why are Tweed Shire Council acting now, in the full knowledge that the NSW Parliamentary Enquiry into Short Term Holiday Let’s Key Recommendations were accepted in April 2017?  Under those key recommendations, La Maison Pacifique would be an “exempt and complying development”?

‘We are all eagerly awaiting the NSW Government’s clarification, regulation and guidance on [STHLs] in the full knowledge that one of the key objectives of the Parliamentary Enquiry was to standardize the treatment of STHLs across all council regions in NSW,’ they said.

Council ‘balanced and responsible’

Tweed Planning and Regulation Director Vince Connell, told Echonetdaily the council had been ‘attempting to provide a balanced and reasonable response to both fulfilling its statutory compliance obligations, as well as considering the new pending state government planning policies on STHLs’.

He added that at its November 2017 meeting the council had resolved, ‘That in relation to the unauthorised land use at 6 Beason Court, Casuarina, legal advice be sought regarding options for action (including but not limited to Orders) to cease the continued unauthorised use and this advice be acted upon’.

He said that at its April 5 meeting council had resolved to ‘defer taking any widespread action against any unauthorised or non-compliant STHL uses until the release of new, anticipated state government STHL legislative and planning policy controls, except in those circumstances where it can be demonstrated that such uses are having an unreasonable impact on the amenity of adjoining or surrounding neighbours as determined by Council’.

‘Since that resolution Council officers have received a number of enquiries from the owners of premises that are currently under investigation for alleged unauthorised STHL who are seeking some form of commitment from Council that no compliance or enforcement action will be taken against them until a broader state government policy position is provided.

‘This is proving difficult for Council officers to manage, as the bulk of these sites under investigation are within the Low Density Residential R2 zone, which prohibits these uses. In most of these scenarios, the Council officers have requested the owners to cease the use, for which the owners have not complied with. Unless otherwise directed by Council, the next phase of action for these sites is to issue orders to cease the use,’ Mr Connell said.

 


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6 COMMENTS

  1. “We are at a loss to understand TSC’s actions”

    What’s not to understand about being stopped from letting in a zone where it’s prohibited?

  2. Short-term rentals (from night one) of what would appear to be a class 1(a) Building Codes of Australia dwelling, without major upgrades, consent from neighbours plus full DA approval from Tweed Shire Council, would appear to be, according to NSW Land and Environment Court case law, a clear “Illegal Use of Residential Premises”.

    Also, the Land and Environment Court judges that when a Local Government Authority does not take action against such “Illegal” operations, this is an “abrogation of their core duty” to neighbours in Residential zones.

    Full steam ahead Tweed Shire Council!

  3. This should not be allowed to proceed on the basis of local employment & putting another nail in the coffin of an Australian industry & farmers who are doing it tough.
    Where are the local members when you need them most.?
    not to be seen

  4. It is not necessary for TSC to apply the heavy hand upon these people , the TSC should be advising their ratepayers on their application instead of persecuting them , very poor show on their part .

  5. Neville, FYI holiday letting in R2 residential zones where this illegal holiday let is located is a prohibited activity under the Twed LEP and current State Planing laws. The owners cannot apply for a DA. The owners have been told that they can be taken to the NSW Land and Environment Court and face a criminal prosecution in a class 5 legal action. Fines are up to $1.1 million and $110,000 per day after the LEC judge makes an order if they continue to illegally holiday let. This applies to the 4,000 plus illegal holiday lets in Tweed and Byron Shires. There are numerous LEC case law to support this illegality. As one judge in a LEC case said “mixing holiday letting with residential is fundamentally incompatible.”

  6. The Tweed Shire Council is clearly breaking the law. It is completely legal for any homeowner, under state & federal law, to rent their property out.
    Councils can write what they like in their laws. They can say nobody can ever wear the colour blue. Until a class action & damages are claimed, they will get away with it.
    Hosts need to formulate an action group & get a legal team ready for the announcement i n2 weeks by the state government which will declare STRA LEGAL, completely overriding any zoning restrictions in what will then become unlawful LEP’s

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