Fresh STRA audits and prosecutions ahead

Hundreds of locals who are renting out their studios and granny flats on Airbnb, in breach of consent conditions agreed with Byron Council, could face prosecution under a new measure introduced last week.

In the latest attempt to address Byron Shire’s housing emergency, councillors unanimously voted to enforce the consent conditions, a move that they hope will encourage the owners of secondary dwellings to move them from the short-term accommodation (STRA) to the long-term rental market.

The new enforcement strategy will particularly apply to property owners who made use of Council’s policy of waiving development contributions on the construction of new secondary dwellings in return for an agreement that the new dwelling would not be used for short-term holiday letting.

Having accepted the terms of this consent condition, and saved themselves up to $20,000, it’s estimated hundreds of local property owners turned around and rented the secondary dwellings out on Airbnb anyway. 

‘We have followed up with letters to owners, and we only got responses from half,’ Byron Mayor, Michael Lyon, told last week’s Council Planning meeting, where the motion was passed.

‘I don’t think many were admitting to the use of holiday let for those properties, but we have plenty of evidence that many of those dwellings aren’t being used in accordance with the consent conditions.’

Council staff estimate that there are between 500 and 700 property owners who fit into this category.

It isn’t the first time Council has attempted to enforce the consent condition in question.

In a number of cases, the owners in question stopped renting their secondary dwelling on Airbnb to avoid prosecution.

In at least one other instance, Council gave up on the prosecution process before going to court, owing to their limited chances of success and the time and cost involved.

Lacked evidence

‘We got to the point where the level of evidence we need to prosecute the argument was very burdensome,’ Council’s Director of Sustainable Environment and Economy, Shannon Burt, told last week’s Council meeting.

‘This resolution will signal to the community the support of Council to move forward with a fresh audit and the prosecution of cases that we have very strong chances of success in.’ 

Council has also received advice from senior barrister, Jason Lazarus SC, that the consent condition can be enforced and that doing so could, if necessary, be defended in court.

A key legal issue in prosecuting such cases is the clash between the Council consent condition in question, and the state government’s policy on short term holiday letting, which effectively makes holiday letting a permitted use for secondary dwellings across the state.

Precedent needed

Mr Lazarus’s legal advice is that, despite this clash, the consent condition can be enforced, but that it would need to be tested in court, so that Council had a legal judgment that it could rely upon for future prosecutions.

Obtaining such a judgment is a key factor motivating Council in the latest enforcement push.

‘I think we should test this in court as soon as possible,’ Cr Lyon told last week’s meeting. ‘We should contest it and get a judgment we can rely upon.’

In the motion passed at last week’s meeting, Council also agreed to continue prohibiting the use of short-term holiday letting for newly approved housing, including secondary dwellings and standard homes in residential areas in most parts of the Byron Shire.

The meeting heard that it was less clear that this aspect of Council’s policy could withstand legal challenge.