NSW Government Response to Final Report of Parliamentary Inquiry - Our Reply

The NSW Community Group, Neighbours Not Strangers, is calling upon the Minister for Planning and Housing Anthony Roberts, and Minister for Innovation and Better Regulation Matt Kean, to consult with NSW Residents and those in the Accommodation/Tourism Industry to address the negative impacts provoked by the Short-Term Tourist/Visitor Letting of Residential Housing.

Residential Housing is by its very name and nature for the housing of Residents. No one is against true home sharing, when individuals co-tenant to pay the rent, the mortgage or save for a holiday, ie those in need of housing who are sharing a home. This is what home sharing is and always has been.

What Airbnb, Expedia, Agoda plus thousands of other Internet Platform Providers in countries around the world want is to monetise our homes - at the same time robbing residents of access to those homes. These companies are simply turning residential housing into hotels and serviced apartments, without any of the legislation and protections that have been brought into play over the years following tragic incidents such as the Downunder Hostel fire at Darlinghurst (Sept 1989), the death of Connie Zhang at Bankstown (Sept 2012), and the Palace Backpackers fire at Childers (July 2006). Queensland State Coroner Michael Barnes wrote:

“It is apparent that since the fire there has been a very high level of commitment and activity across numerous State Government departments and local authorities that has seen a metamorphosis in building fire safety. However, there is always a risk that as the horror of the Palace Backpackers Hostel fire fades from the public consciousness, and new priorities demand the commitment of extra financial and human resources, these reforms will be allowed to degrade. I know the professional and volunteer fire fighters of this State who risk their lives when fires occur would prefer sufficient resources continue to be devoted to prevention. It is incumbent on their superiors and the State Government to continue to provide the leadership and the resources to enable that to happen."

Those who live in and have purchased into residential buildings and neighbourhoods have done so in good faith and on the understanding that they will be living in a residential environment and community, and not in a hotel or a transit zone.

There are ever-growing numbers of distressed residents across NSW whose home lives are now in constant turmoil due to their proximity to Short-Term Tourist/Visitor properties. For those living in Residential Suburbs, and particularly so for those living in Strata or Company Title Buildings, the social and economic impacts are profound and ongoing.

While Legislators around the globe are scrambling to introduce legislation to protect their supply of housing for their Residents, the NSW Government’s Response (author/s unknown) to the Recommendations in the report dubbed ‘The Coure Report’, talks of booking services, marketplaces, lowering transaction and accommodation costs, income from assets, economic benefits of tourism etc. There is little-to-no acknowledgement of the impact that the loss (Airbnb alone) of 41,000+ homes across NSW is having on rental and property prices. Thousands of our homes already let short-term, with thousands more to come if Short-Term Letting Operators are blessed with this Government’s ‘green light’, most definitely means thousands more tenant evictions, the mass-yet-silent displacement of so many of our essential workers, and a growing number of Homeless across our State.

And again, one cannot and must not forget the hellish reality that short-term letting delivers on neighbours and neighbourhoods. Community cohesion and support are essential for good health and wellbeing – Members of the NSW Parliament cannot deny this.

And data from San Francisco’s Financial Controllers shows that even when properties generate visitor income, the economic harm associated with higher housing costs is severe and exceeds any benefits from tourist spending/income. San Francisco: For every home removed from their housing market for the purposes of short-term letting they estimate the loss to their economy is between USD250,000-USD350,000 per home, per year, every year.

At New Year, an Airbnb spokesperson told the ABC’s Riley Stuart that Sydney was ranked 4th in the world in terms of the number of Airbnb listings…after Paris, New York and London. Sam McDonagh even boasted last year that Australia was “Airbnb’s most penetrated market”.

The Council for the City of Sydney currently issues Development Approvals in which it is stated that it is not permitted to advertise residential housing for rent for periods of less than three months. New York has introduced this stipulation into their legislation, and so should NSW.

Sydney and NSW already have ‘world’s best’ legislation and case law. Our State and Local Government Officials should be mandated to enforce our legislation. If they won’t enforce, they shouldn’t be in their jobs.

Parliamentarians: Consult with Residents. Don’t ignore us.

THERE SHOULD BE NO RETROSPECTIVE CHANGES TO THE ZONING ON AND RESIDENTIAL STATUS OF OUR HOMES

Repeating: Residential Housing is for the housing of Residents.

SUMMARY NOTES IN REPLY TO GOVERNMENT’S RESPONSE:

RECOMMENDATIONS 1/2/3 – PROPOSED AMENDMENTS TO THE STANDARD INSTRUMENT:

1 a), b) We would strongly recommend that the Government look to the NSW Residential Tenancies Act 2010 (RTA) Sections 7 and 8(h), where that which is NOT a residential tenancy under the RTA is clearly defined and hold very firm on this legislation.

2), 3) Short-term letting of rooms in any property where the landlord or host is present; it is strongly recommended that the Government look to the City of Sydney’s Visitor and Tourist Accommodation Development Control Plan 2006. This 41-page document provides details such as the requirement to have a ‘Site Manager’ - contactable at all times - obligations under the Occupational Health and Safety Act, Building Code of Australia (BCA), Environmental Planning and Assessment Regulations, access for people with disabilities, monthly Fire & Rescue certification and further annual inspections, plus compliance with the Food Regulation Act. Also, the need for Internal Signage Occupancy Schedule, Pool Safety Regulations, Land Tax, ABN Registration, GST, plus the payment of any employees under the Hospitality Industry (General) Award or similar awards/legislation.

RECOMMENDATION 4 – SHORT-TERM LETTING OF EMPTY PROPERTIES BE PERMITTED UNDER STATE ENVIRONMENTAL PLANNING POLICY (EXEMPT AND COMPLYING DEVELOPMENT CODES) 2008:

The NSW Land and Environment Court (LEC) has repeatedly and consistently judged mixing Short-Term Tourist/Visitor Letting with permanent Residents “fundamentally incompatible”. The LEC finds:

“The adverse impact on the amenity and wellbeing of Residents, as the evidence has always overwhelmingly demonstrated, is severe”.

“Short-term residents have no long-term interest in the maintenance of the amenity within a building or the surrounding area."

“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…”

RECOMMENDATION 5 – THE NSW GOVERNMENT TO IDENTIFY OPPORTUNITIES TO REFORM CURRENT REGULATIONS COVERING TRADITIONAL ACCOMMODATION OPERATORS:

From the Government’s response, it is understood that there is the proposal and assumption that there will eventually be winding back of current legislation covering the operations of licensed accommodation providers.

RECOMMENDATION 6 – AN INDUSTRY-LED VOLUNTARY NATIONAL ‘CODE OF CONDUCT’:

With hundreds of Internet Platforms offering short-term letting of residential premises, and with the likes of Deputy Premier John Barilaro listing his country estate on at least three Short-Term Letting Platforms, when one indeed needs to lodge a complaint, one asks how will it be possible to identify the Agent/Platform through which a property has been let? Who is to set the benchmarks for ‘burden of proof’ of extreme behaviour, exactly how will disciplinary action be administered? Who will collect and distributed penalties/compensation, when it is supposed that Industry Members will be regulating themselves? What good will compensation be to neighbours – if indeed any compensation is ever actually paid – for the sever disruption to their home lives?

We again defer to the Land and Environment Court:

"The respondent readily agreed that she could not guarantee compliance with the 'Code of Conduct', confirming that it was impossible to control another’s conduct.”

“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”…. “

“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…”

RECOMMENDATION 7 – COMPLIANCE UNDER THE NSW ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 – DIVISION 1C (Subsection 1):

a) Our current legislation works. Local Government Authorities should be mandated to enforce our current legislation, in particular:

THE POWER TO APPOINT INVESTIGATORS: Division 1c, Subsection 1,

119B Appointment of investigation officers

The Secretary or a council may appoint persons (including any class of persons) as investigation officers for the purposes of this Division. Note: Because of the definition of “investigation officer”, a person appointed by the Secretary becomes a “departmental investigation officer” and a person appointed by the council becomes a “council investigation officer”.
A person’s appointment as an investigation officer may be made generally, or made subject to conditions or restrictions or only for limited purposes.”

THE POWER TO TAKE ACTION:

119C Purposes for which powers under Division may be exercised (2) A council investigation officer may exercise powers under this Division for any of the following purposes: a) enabling a council to exercise its functions under this Act,

THE REQUIREMENT TO ANSWER:

119M Offences

A person must not, without reasonable excuse, fail to comply with a requirement made of the person by an investigation officer in accordance with this Division.
A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Division that the person knows is false or misleading in a material respect.
A person must not intentionally delay or obstruct an investigation officer in the exercise of the officer’s powers under this Division.
The maximum penalty for an offence under section 125 arising under this section is a tier 3 maximum penalty.

Penalties: See Section 125(a), (b) and (c) of Environmental Planning and Assessment Regulations 2000

DOCUMENTS MUST BE PROVIDED AND SEARCHES MAY BE CARRIED OUT:

119J Requirement to provide information and records:

An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose.

119G Search Warrants

An investigation officer may apply to an eligible issuing officer for the issue of a search warrant if the investigation officer believes on reasonable grounds that this Act is being or has been contravened at any premises.

AUTHORISATION TO SERVE PENALTY NOTICES AND IMPOSE FINES:

127A Penalty notices for certain offences

An authorized person may serve a penalty notice on a person if it appears to the authorized person that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.

AND:

PLANNING AND ASSESSMENT REGULATION 2000

FINES THAT MAY BE APPLIED:

Schedule 5 Penalty notice offences

“…in the case of a person referred to in clause 243 (3) (3) or (d), Individual, $3,000 per day. Corporation, $6,000 per day.

125A Maximum penalties for offences against –

Act: Tier 1

A person who is guilty of an offence to which this section applies is liable to a “tier 1 maximum penalty”, being a penalty not exceeding:

(a) in the case of a corporation: (i) $5 million, and (ii) for a continuing offence a further $50,000 for each day the offence continues or (b) in the case of an individual: (i) $1 million, and (ii) for a continuing offence a further $10,000 for each day the offence continues.

b), c), d) STREAMLINED COMPLYING DEVELOPMENT CERTIFICATES and HOLIDAY AND SHORT-TERM RENTAL CODE OF CONDUCT AND ‘PARTY HOUSE’ PROVISIONS’:

Short-Term Tourist/Visitor Letting of Residential Housing should be classified as ‘Complying Development’ – this type of occupation mixed with permanent residential occupation is

FUDAMENTALLY INCOMPATIBLE

RECOMMENDATIONS 8 and 9 – COUNCIL/COMMUNITY COMMUNICATION AND MONITORING PROGRAM:

Local Government Staff will not respond to Residents – reference City of Sydney Council CEO Monica Barone (26 April 2016): “The City will review reports and may contact the owners of those units during any investigations. City Staff may not, however respond to you directly. This decision has been made in line with our Customer Service procedures; you can see more information at http://bit.ly/1HSJKXZ. These procedures include your right to request a review of this decision – see section 8.1, Right of appeal.” And, (18 April 2017): “I acknowledge receipt of your correspondence.” Nothing further from Ms Barone/her Staff.

RECOMMENDATION 10 – POSSIBLE AMENDMENTS TO STRATA REGULATIONS TO GRANT OWNERS CORPORATIONS MORE POWERS TO MANAGE AND RESPOND TO ADVERSE BEHAVIOUR RESULTING FROM SHORT-TERM LETTING:

Shifting responsibility to Strata Owners – requirement to act as Enforcement Agents. In a Strata building under the control of former State MP John Williams, NO action will be taken against those short-term letting; Williams has delegated responsibility to any Resident who is impacted upon by short-term letting.

RECOMMENDATION 11 – NSW GOVERNMENT TO REVIEW IMPACT OF SHORT-TERM LETTING IN THE STRATA ENVIRONMENT AFTER FIVE YEARS:

This response will no doubt send profound shock waves through every NSW Strata Scheme.

The NSW Government MUST review Submission by Maestri Towers plus Submission No. 22 – marked “Confidential”, the author will be held in “Contempt of Parliament” if a copy of this Submission is released…Submission described by the Manager of the Parliamentary Inquiry as “the most graphic of the 212 Submissions received by the Parliament”.

RECOMMENDATION 12 – NSW GOVERNMENT TO COLLECT DATA ON THE HOLIDAY INDUSTRY GENERALLY, AND SHORT-TERM LETTING IN PARTICULAR, TO ASSESS THE ECONOMIC CONTRIBUTION OF SHORT-TERM LETTING AND ITS IMPACT ON HOUSING AFFORDABILITY AND COMMUNITY VIABILITY:

This matter was referred to the NSW Parliament on 09 SEPTEMBER 2015.

The Parliamentary Hearing Committee, in our opinion, failed to address any of the Terms of Reference laid out for them.

NSW Residents/Tax Payers have funded this 19-month process.

Numerous Submissions put to the Parliament are not accessible.

Requests to address the NSW Parliament by those whose lives have been impacted upon by large-scale Short-Term Letting were denied. There is, therefore, no written account available for scrutiny.

- - - -

WHO PAYS? Strata Lot Owners have UNLIMITED LIABILITY. NSW Land and Environment Court:

“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.”

- - - -