The Greens NSW Tourism spokesperson and Byron Shire resident, Jan Barham MLC, has warned that Byron Shire Council’s Draft Short Term Holiday Accommodation Strategy is a recipe for the erosion of community in Byron Shire.
“The changes to the planning process proposed by Byron Shire Council would allow holiday letting in all residential areas and diminish the already limited stock of available housing and change the character of Byron Shire,” said Ms Barham.
“The proposal makes a mockery of strategic planning and has had no Social Impact Assessment, which would be required for rezoning residential land for tourism. The council is already under pressure to deliver more residential housing and that was evident in the State Government’s recent approval of the West Byron development.
“The problem with the unapproved use of dwellings for tourism purposes has been an issue in Byron Shire for over a decade and has caused great concern in the community. Currently there are estimates of at least 900 houses approved as residential dwellings being used for tourism purposes. This unapproved use means that permanent residents are deprived access to housing and equates to about 2500 people unable to be housed.”
Ms Barham noted that the legal situation prohibiting holiday letting was clear and that the NSW Government needed to support councils to act in enforcing the law as it stands.
“A recent Land and Environment Court judgment relating to holiday letting in the Gosford area makes clear that the use of dwellings for short term tourism purposes in residential zoned areas is prohibited. Byron Shire Council has tried to deal with the problems with the unapproved use but has been thwarted by the state government in the regulation of the use or taking legal action.
“In the past when Byron council sought to take action it was requested to desist by the State Government with an assurance that they were addressing the issue. What eventuated was Government support for industry regulation. It is outrageous for the same Government that imposes unwanted development on communities to fail to support councils’ efforts to ensure existing housing is available for residential use.
“While tourism is an important economic benefit to the shire, it should not come at the erosion of the community that has protected and created this iconic destination. Council should be acting on the current legal situation rather than considering an approach that would contribute to the lack of affordability and availability of properties and change the character of the community,” Ms Barham concluded.
For Further Comment, please contact Jan Barham directly on 0447 853 891
Motions put on record in the NSW Legislative Council by Jan Barham
Unapproved Tourism Use of Residential Dwellings, Notice given 19 November 2014
1. That this House notes that:
(a) legislation and court decisions define the distinction between the use of residential dwellings for the purpose of permanent occupation and short term tourism uses such as holiday let and serviced apartments, and
(b) court decisions have determined that the use of approved dwellings or dwelling houses for the purpose of tourism use is an unlawful purpose and contrary to the zone objectives and therefore prohibited.
2. That this House notes that many court cases have addressed the use of residential-zoned buildings and land for uses other than residential dwellings, including the following:
(a) in the judgement of Reynolds JA in South Sydney Council v James (1979) 35 LGRA 432 the critical element of reasoning was that some level of permanence is required in that a dwelling requires “at the very least, a significant degree of permanence or habitation or occupation”,
(b) in the Land and Environment Court case of the Sydney Council and the Waldorf Apartments in March 2008, Paine J’s judgment focussed on the question of whether the use of the rooms “is for the purpose of ‘residential accommodation’ or for other purpose, namely short term accommodation” and ruled that consent to use the building for serviced apartments had not been given,
(c) in the Waldorf Apartments case, Paine J noted the similarities with the case in North Sydney regarding the use of Blues Point Towers where, in the Court of Appeal, Mahoney JA (with the agreement of Handley JA and Priestly JA) held that the use of flats as serviced apartments was unauthorised on the grounds that they did not have “the necessary degree of permanence”,
(d) in the 2005 case relating to the York Apartments in York St Sydney, it was noted that the term ‘serviced apartments’ “was first introduced into the City of Sydney Local Environment Plan in 1996 and described inter alia as ‘used to provide short term accommodation’”, and that Lord J, ruling in the appeal to change usage of the York building to incorporate serviced apartments, found against the appeal on the grounds that “the description of a flat as a ‘dwelling’ or ‘domicile’ carried with it the notion of a degree of permanency of habitation or occupancy” and that the owner must comply with the original consent for use as a ‘residential flat building’,
(e) in the more recent case in the Land and Environment Court, Paine J ruled that a unit in Sutherland Shire had a 1960 development consent for use only as a ‘residential flat building’, and quoted the above Mahoney J Court of Appeal decision, noting that a dwelling or residence carries with it the notion of permanency and ruled that the unit in question was, on the balance of probabilities, being used for holiday letting, as indicated by its advertisement for such in the NRMA Open Road magazine,
(f) in a Byron Shire case in the Land and Environment Court involving the appeal against Council’s refusal to permit a proposed development to be re-categorised as ‘holiday cabins’, Lloyd J considered that by definition, a holiday cabin is a tourist facility and therefore is prohibited in that particular zone of the Council’s LEP, and
(g) in the Land and Environment Court in April/May 2013, hearing a matter involving Gosford City Council brought by the neighbours of a six bedroom holiday let with a history of late night parties, loud music and other disturbances, Pepper J found that holiday letting of this property was prohibited on the grounds that the use was not sufficiently “permanent to comprise a ‘dwelling house’ for the purposes of the relevant zoning” and further Pepper J noted that, unlike other Councils like Byron Shire, this Council had not amended its LEP to resolve any ambiguity regarding holiday letting.
3. That ths House notes that there is considerable confusion in the community regarding the rights of property owners to use buildings and land for short-term letting or tourism purposes when the original consent has been for residential use, and in particular that in the Gosford judgment Pepper J stated that, “Whether a building is a dwelling house is a question of fact and degree,” and further that Councils expecting the courts to rule on these matters “amounts to an effective abrogation by the council of its fundamental duties and responsibilities.”
4. That this House notes that while in April 2012 the then Minister for Planning and Infrastructure the Hon. Brad Hazzard MP announced a Code of Conduct for Holiday Letting, this amounted to the industry essentially regulating the industry and little recourse for either the councils or the residents who may be suffering the negative effects of holiday letting in their towns or suburbs.
5. That this House notes that:
(a) due to the legal interpretations of the permissible use of a dwelling house and the determinations that short term letting is a prohibited use, there are concerns regarding liability and insurance protection, and
(b) the use of dwellings for an unapproved use such as short term letting and tourism purposes results in a lack of safeguards for the occupants.
6. That this House notes that the current Standard Instrument LEP definition of a residential accommodation:
(a) means a building or place used predominantly as a place of residence, and includes any of the following:
(i) attached dwellings,
(ii) boarding houses,
(iii) dual occupancies,
(iv) dwelling houses,
(v) group homes,
(vii) multi dwelling housing,
(viii) residential flat buildings,
(ix) rural workers’ dwellings,
(x) secondary dwellings,
(xi) semi-detached dwellings,
(xii) seniors housing,
(xiii) shop top housing, but
(b) does not include tourist and visitor accommodation or caravan parks, and therefore identifies that tourism use of a dwelling is a prohibited use.
7. That this House notes that the use of approved dwellings for short term letting and tourism purposes reduces the available permanent housing stock in a locality and can result in a housing supply shortage, and therefore places availability and affordability stresses on a locality and is contrary to strategic planning objectives to define the potential housing stock and meet permanent population targets.
8. That this House calls on the Government to clarify the legal and planning requirements relating to the use of dwellings for short term letting and tourism purposes and note the impacts and consequences.
Legal Issues Relating to Unapproved Tourism Booked via Websites, Notice given 11 November 2014
1. That this House calls on the Government to resolve the legal issues of properties that are used by tourists or visitors secured via internet sites such as Airbnb and Stayz, which constitute a non-compliant use with state planning and/or local council regulations, as considered by the Legislative Council Inquiry into Tourism in Local Communities, especially under Term of Reference 3.
2. That this House notes that:
(a) the use of internet sites such as Airbnb to locate properties for short term stays by tourists or visitors has been increasing since 2008 when such sites first began,
(b) the use of this form of booking via internet sites results in the true number of tourists or visitors to an area being under-estimated which can mean that government is unable to plan properly for service provision,
(c) most properties listed on such websites are not approved by local government for tourism purposes and are non-compliant with the standards set in the Building Code of Australia for tourist accommodation,
(d) due to the lack of approval these properties may not be covered by insurance while being used by tourists,
(e) fire, safety and other standards of these properties may be inadequate for temporary holiday accommodation,
(f) this type of tourist or visitor accommodation may have negative impacts on neighbours due to issues such as noise, rubbish, parking and anti-social behaviour, and
(g) properties secured via the internet and used by tourists or visitors for short term stays may be competing unfairly with legitimate, approved tourist or visitor accommodation due to lack of:
(i) application approvals and fees,
(ii) compliance with regulation,
(iii) higher cost of commercial property purchase and
(iv) payment of local government commercial rates,
(h) strata managers and strata committees are seeking clarification about the legal issues surrounding the use of residential properties for short term letting.
3. That this House notes that when residential zoned approved dwellings are used for commercial or tourism purposes it diminishes the supply and affordability of housing and therefore contributes to housing affordability pressures.