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Byron Shire
August 4, 2021

Short term holiday letting precedent

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Fast Buck$, Coorabell

A few years ago Council planning staff started adding a consent condition to NSW residential zone approvals stating that the premises were not to be used for short-term accommodation, ie holiday letting. I don’t think that move was a result of any Council resolution.

The anything-goes pro-development crew protested loudly about this and more recently I began to suspect that the practice must have been quietly discontinued.

Accordingly I asked a question about this during public access last week. On this occasion the senior staff didn’t send it to a city lawyer for clever evasion as they usually do; they achieved the same result by putting a more junior staffer onto it.

We were informed that Council does impose such a condition on granny flats, on dual occupancies and secondary dwellings. However, when I subsequently asked said staffer why the condition wasn’t imposed on all new residential developments as it used to be he replied that he hadn’t been given any directive to do so.

It all sounds a bit random to me, leading to the question: who makes the actual decisions in this council?

So: why were such conditions initially imposed and who made the decision? Why was the practice subsequently discontinued and who made that decision? Have any of those who had such a condition imposed subsequently applied for its deletion under Sec 96, and were they successful? Were councillors informed of any of this? Did any councillors actually ask? (The last two are joke questions.)

Mr Mayor went public in The Echo about a year ago claiming that were was no law against holiday letting, illustrating the unwisdom of relying on advice given by some Council staff.

The truth is that there are two sources of law: the parliament and the judiciary.

I accept that probably no parliament has passed a law prohibiting holiday letting. The fact is that there are precedents going back well over 100 years disallowing short-term accommodation in residential zones. A judicial precedent is law.

The staff didn’t actually lie to you; they merely told you only half the story – the half that suits anything-goes development. It is also the half that allows you to go around making pious anti-holiday-letting statements without actually doing anything about it.


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5 COMMENTS

  1. Fast Bucks,
    This sort of thing sometimes happens in the media. It is called “Bias by Omission”. To edit is to take material out of a story but the story must stay the same in legal and moral meaning. You can’t change the story. To take material out and that story then changes in legal and moral meaning, that then is putting a bias into the story.
    Who makes the decisions in Council? You are watching democracy in action for according to law the majority vote by councillors makes decisions.

  2. Following is the actual question asked by Fast Buck$ and the response given by “junior staffer” (as described by Fast Buck$) Chris Larkin.

    Question No. 1 – Holiday Letting

    John Anderson asked the following question:

    A few years ago Council began adding consent conditions to residential developments to prevent holiday letting in residential zones. Does Council still do this and if so, under what circumstances? If not, why was the practice discontinued?

    The Acting Director of Sustainable Environment and Economy provided the following response:

    Standard practice to apply the restriction on holiday letting to secondary dwellings is still our practice, we haven’t discontinued it. Staff also applies the restriction from time to time on medium density forms of housing, including dual occupancies and the like, to ensure such housing is used for that intended purpose.

    Chris Larkin did not answer the question! The section of the question regarding why was the proviso of no holiday letting or no tourist and visitor accommodation that was applied to all dwelling DA’s in residential zones previously was not answered.

    This is an example of gross obfuscation that I have seen many times in Council where difficult and uncomfortable questions (to the staff). have been asked.

    The question still needs to be answered as holiday letting is still an illegal prohibited activity in residential zones. Parliamentary legislation presented last year has still not been gazetted.

    • Ah but Harry, you don’t understand. Nothing new here. The staff member gave a response and according to Council guidelines: response = answer. This equation sets teeth on edge for anyone possessing a basic insight into the nuances of language but it’s damned handy in a tight spot.

  3. The use of residential housing as short-term tourist/visitor rentals is a prohibited use. This is a well-documented legal position. With multiple Agents such as Luxico offering anything up to 36 homes in the Byron Shire alone, and featuring Airbnb’s Sam McDonagh in their publicity photos… How more blatant do these operators need to be to see enforcement action taken against them.

    Byron Shire employees need simply look to Land and Environment Court case law, and consider the proprietary rights of those who have sunk life savings into residential properties plus the position of accredited accommodation providers, ie those who are paying them to do the jobs that are not doing.

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