NSW LAND and ENVIRONMENT COURT REPEATEDLY JUDGED
‘MIXED USE’
“FUNDAMENTALLY INCOMPATIBLE”

“Short-term residents have no long-term interest in the maintenance of the Amenity within the building or the surrounding area.”

“The respondent readily agreed that she could not guarantee compliance
with the ‘Code of Conduct’.  “I have no control over any other person do I really, in realism (sic), I can only control my own conduct. I can’t control other – other people’s conduct”.”

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“The issue of short-term letting is an important and live issue which should come under close scrutiny, especially in light of the Coroner’s Inquiry and Inquest into the death of Connie Zhang at Bankstown.”
Greg Buckley
Assistant Director for NSW Fire & Rescue

HOUSING IS A
BASIC HUMAN RIGHT

“A tenancy granted to persons who are residing in a group situation for periods of a week or less for the purposes of bucks and hens nights, parties
or for the use of escorts or strippers, is,
in my opinion, not consistent with a use or occupation by a family or household group
in the ordinary way of life, and therefore,
not consistent with the use of the property
as that of a “dwelling-house”…

Inherent within the term “domicile” is,
as a long line of authority in this jurisdiction has established, the notion of a permanent home or, at the very least, a significant degree of permanence of habitation or occupation… (The Respondent) readily agreed that she could not guarantee compliance with
the House Rules or the Code of Conduct.
…the harm caused to the environment is not limited to the undermining of the
planning regime.
The adverse impacts on the amenity and wellbeing of the (Residents) has been, as the evidence overwhelmingly demonstrates, severe.

By leaving it to the Court to determine this important issue, the council, by its inaction, has, in my opinion, failed to fulfil its core functions and has failed its constituents.”

“There is a difference in the living and
activity patterns and behaviour of short and long-term residents…
Short term residents have no long-term interest in the maintenance of the amenity within the building or the surrounding area… The proposal will require extensive building upgrades for fire safety and for access for persons with a disability.
The proposal will likely lead to a disproportionate financial burden on long-term residents, in terms of retrofitting the building, and as well, for operational
repairs and maintenance.”

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There are record numbers of homeless
right across NSW and yet… “In 2014, there were an estimated 216,000 STHL (short-term holiday letting) premises in the NSW/ACT.
The number of listings via online platforms is more than doubling each year between
2011-2015…”
Former NSW Ministers Anthony Roberts and Matt Kean

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In some areas of the Shoalhaven…
“Anywhere up to 70-80% of residential dwellings are vacant… that gives an indication that they are holiday homes
of some description.”
Gordon Clark
Strategic Planning Manager
Shoalhaven City Council
NSW Parliamentary Inquiry into the Adequacy of Legislation Covering Short-Term Letting

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NSW LAND & ENVIRONMENT COURT
Case Law Judgments

The NSW Land and Environment Court (NSW LEC) has analysed case law on the definitions of “residential accommodation”, “residential building”, “residential flat building”, “domicile” and “flats”, and concluded that there must be “an element of permanence or residence for a considerable time, or having the character of a person’s settled or usual abode” in order to constitute “residential buildings”; relying particularly on North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 and Derring Lane Pty Ltd v Port Phillip City Council (No 2) (1999)
108 LGERA 129.

NSW LEC CASE LAW JUDGMENTS

 [1992] NSWLEC 43 – Justice J Bignold – North Sydney Council v Sydney Serviced Apartments Pty Ltd
[2001] NSWLEC 10086 – Justice J Cowdroy – Foster v Sutherland Shire Council
[2007] NSWLEC 88 – Justice C Brown – 187 Kent Street v Council of the City of Sydney
[2007] NSWLEC 382 – Justice J Jagot – 187 Kent Street v Council of the City of Sydney – Appeal – “fundamental incompatibility” 
[2008] NSWLEC 97 – Justice J Pain – Council of the City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited and Anor (‘Additional issue, 76’) and “’Finding on discretion, 79’
[2010] NSWLEC 182 – Justice J Sheahan – Council of the City of Sydney v Oaks Hotels and Resorts (NSW) No. 2 Pty Ltd
[2010] NSWLEC 182 [2011] NSWLEC 234 – Justice J Sheahan – Council of the City of Sydney v Oaks Harmony
[2011] NSWLEC 235 – Justice J Sheahan – Council of the City of Sydney v Oaks Hotels and Resorts (re Maestri)
[2011] NSWLEC 1054 – Justice C Murrell – Council of the City of Sydney v Oaks Hotels and Resorts (re Maestri)
[2012]
NSWLEC 40466 – Byron Shire Council v Blaney – 21 Bay Vista Lane, Ewingsdale (pages 46-50 of document)
[2012] NSWLEC 143 – Justice A J Lloyd – GrainCorp Operations Limited v Liverpool Plains Shire Council
[2013] NSWLEC 61 – Justice J Pepper – Dobrohotoff v Bennic
[2014] NSWLEC – Case No. 14/4923 – Council of the City v Con Kotis/Australian Executive Apartments
[2017] NSWLEC 188 – Sun v Randwick City Council
[2019] NSWLEC 45 – Tween Shire Council v Taylor
[2019] NSWLEC 1238 – Sherman v Newcastle City Council

[2022] NSWLEC 1650 – Wookey v Byron Shire Council Examples of substantive case law to support the Class 2 classification position going forward:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2013/365.html

www.corrs.com.au/publications/coors-in-brief/land-and-environment-court-clarifies-meaning-of-residential-buildings/

In the GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 decision, the Land and Environment court’s decision helps clarify the meaning of “residential” use. At all times the management of the site reserved the right to re-allocate rooms to occupants on a needs basis and no occupant was permitted to stay longer than a pre-determined length of time. The Court confirmed the question of the proper characterisation of use as a jurisdictional fact; being a fact that must exist as a condition precedent to the proper exercise of a consent authority’s power.