We've Already Voted: Residential!

Let’s talk case law, which some might find boring but it’s critical in the debate over short-term letting.

One Member of the NSW Legislative Assembly wrote this week that strata management must be democratic with Owners Corporations able to vote on the terms that short-term letting is permitted in buildings. The Member went on to say that increasingly he was also hearing from terrace home residents concerned about short-term let party houses in their street and gave an assurance to push for a legal framework that protects amenity and safety. Another North Coast State MP reports that he is receiving more and more complaints from residents about the impacts of party houses in his electorate. We already have a legal framework. And any suggestion that Owners Corporations can retrospectively decide by a 75% vote to overturn the Residential Zoning on a building to permit short-term letting is certainly a breach of one’s democratic right; that right having been exercised at the time of purchase into a Residential building or Residential suburb. A situation such as the 75% vote would deliver an ongoing flow of liquid gold to the Strata Lawyers required to negotiate battles between conflicting interests plus leave some owners finding their homes turned into a hotel and paying for that ‘privilege’. It will also clearly rob those who purchased Commercial properties in areas zoned Commercial.

A propos recommendations to make short-term letting ‘exempt’ and ‘complying development’, when determining the objective intention, one should avoid a construction of a planning instrument that produces irrationality or absurdity, bearing in mind that planning instruments are not always drafted with pellucid clarity or with a keen eye to taxonomy. But this is not a licence to depart from language that is unambiguous and is not otherwise inconsistent with the context and purpose of the instrument, however undesirable the result.

Implicit within the use of homes/areas that are zoned for the purpose of Residential use, is the assumption that a property will be occupied in the same way that a family group or single person in the ordinary way of life would occupy it and that there be a requisite critical degree of residential permanency, which is plainly not demonstrable where the maximum occupancy is perhaps an hour, a night, a week or a month. Short-Term Lets are antithetical to the concept of permanency and Residents must have certainty and consistency when it comes to Planning.

The records are there: short-term holiday lets are not compatible with a “low density residential environment” that “affords services to residents at a local level”. In fact, short-term lets “adversely affect residential amenity” and “place demands on services”, on the police and the council in particular by having to deal with complaints relating to use in a manner well “beyond the level reasonably required for low scale housing”.

Yes, cities and towns derive revenue from tourism however cities and towns also need teachers, doctors, nurses and small business owners, and in order to attract tourism, services, amenities and housing must be offered to the permanent population. Local Newspapers are reporting that Airbnb has shattered their permanent rental market. Urgent action is required on short-term letting of Residential buildings in Residential zones.

Our Courts consistently judge that the “adverse impacts on the amenity and wellbeing of Residents” caused by short-term letting are, “as the evidence overwhelmingly demonstrates, severe”.

NSW ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

http://www.legislation.nsw.gov.au/#/view/act/1979/203

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

119B Appointment of investigation officers

1. 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”.

2. 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

1. 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.

2. 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.

3. A person must not intentionally delay or obstruct an investigation officer in the exercise of the officer’s powers under this Division.

4. 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:

1. 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

1. 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

1. 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.