ILLEGAL AIRBNB LISTINGS – WHO IS DIRECTING GOVERNMENT POLICY?

Airbnb was recently ordered by a French court to pay the owner of a Paris apartment after the tenant sublet the property. Airbnb and the tenant were jointly ordered to pay Euros 52,000 plus Euro 5,000 in legal fees (approximately AUD94,000.00 in total). The judge ruled that Airbnb can be considered a publisher by linking ‘hosts’ with travellers to “act illegally”. In the NSW Land and Environment Court (Case number 14/40923) the agent linking ‘hosts’ with travellers was similarly fined and placed under a Penal Notice. Airbnb continues to list apartments in the same building, yet NSW Fair Trading has accepted the company’s claim – Fair Trading parroted: “Airbnb have advised they are an online platform and do not own, operate, manage or control accommodation. They are however committed to notifying hosts of complaints when received.” NSW Fair Trading – “we are unable to provide further intervention.”

In 2008 the NSW Minister for Fair Trading gave an assurance in Parliament that the Department “would examine any improper or questionable actions undertaken by a real estate agent…Penalties for breaching legislation include a range of disciplinary actions from a reprimand to cancellation of a licence and disqualification from involvement in the real estate business”. We note with quiet interest that Member for Sydney Clover Moore’s parliamentary question and the Minister for Fair Trading’s answer would appear to no longer be visible on Parliament’s Hansard record – see photo for screen shot of earlier Hansard record.

May 2019 correspondence from Fair Trading states: “NSW Fair Trading is unable to make any determinations on the (sic) activities are appropriate under different zoning regulations. This would be a matter to be determined by…local council. Should you have information from council confirming that the activities of an agent are not in accordance with zoning regulations you are welcome to submit this information to Fair Trading for further assessment of the agents (sic) conduct.” Correspondence was sent to Fair Trading on 15 January 2020; the addresses of 368 short-term letting properties operated by eight agents in one NSW North Coast Council area were identified. The Council also confirmed breaches of Residential Zoning. NSW Fair Trading has yet to acknowledge the correspondence.

One of the City of Sydney Council’s most prolific Airbnb Agents – M-Power with 143 Airbnb listings – continues to operate with perceived impunity. Listings include those in Residential Strata where NSW Land and Environment Court Orders uphold the clear and specific ban on short-term rentals.

We have previously quoted a January 2017 submission from a NSW Senior Counsel who specialises in Planning, environmental and local government law, building and construction, plus negligence of statutory authorities. His advice to Ministers of the NSW Parliament on their plans to make Airbnb-type rentals ‘exempt’ and ‘complying development’ state wide was that, for countless owners of NSW residential properties “who acquired their properties fully aware of the development consent conditions intended to prevent short-term letting, if enacted…(Government’s policy) would be akin to an acquisition of valuable proprietary rights without compensation”.

Since August 2017 it appears that all but one Residents Associations have been excluded from direct consultation on Parliamentary policy; included among those now on the outer is the NSW Council for Civil Liberties. The one organisation that was welcomed by State Ministers is that which stated it was seeking Government funding and would take a ”softly, softly approach” on short-term rentals.

The NSW Department of Planning is yet to publish responses to its 2019 ‘Have Your Say’ on Short-term rental accommodation. Nine months ago verbal confirmation was received from Fire & Rescue NSW: they specifically requested that their recommendations to Planning NOT be deemed confidential and kept from Residents. The Tasmanian Fire Services Submission on Short Stay Accommodation is available via the Tasmanian Parliament’s website; their arguments are clear. Federal Building Codes, Fire & Rescue criteria plus recommendations and instructions from various Coroners to State Ministers should not and must not be circumvented. In NSW however that is not the reality.

In November 2018 the Law Society of NSW made a submission on Parliament’s “Short-term rental accommodation – Explanation of Intended Effect” and again lodged a 2019 submission in response to ‘have your say’. In relation to existing development consent conditions the Law Society of NSW noted that (clause 9) of the State Environmental Planning Policy [SEPP] provides that “specifying a type of development as exempt development does not authorise the contravention of any condition of development consent”. The Law Society supports “the preservation of existing development consent conditions prohibiting STRA” and suggested to the Department of Planning: “…for clarity that this be explicitly incorporated in the SEPP…”

Given NSW’s long line of Land and Environment Court judgments on this contentious issue, Federal legislation which sets clear guidelines on types of construction plus restraints on the use of premises, exactly why are Ministers of the NSW Parliament still planning to disregard all in favour of overseas-based booking platforms?

Perhaps a glance at the ‘friends’ listed on the Facebook page of Airbnb’s Australian Director of Public Policy – Brent Thomas – gives an indication of the depth of Airbnb’s penetration in terms of contacts with Federal/State Parliamentarians, Local Government administrators and even ICAC witnesses. (We are blocked from Thomas’ social media pages so cannot provide links to his Facebook or Twitter feed.)

As for the Australian subsidiary of Seattle-based Expedia – Stayz - former NSW Liberal Opposition Leader Peter Collins’ government relations firm Barton Deakin now has company when it comes to those paid to lobby Ministers. Active now is two-time adviser to the former NSW Minister for Industry, Resources and Energy, and then Minister for Planning, Housing and Special Minister of State Anthony Roberts. Young Harry Hughes is a registered third-party paid lobbyist for Stayz. Nephew to Lucy and Malcolm Turnbull, in November 2017 Hughes launched Government Relations/Corporate Advisory firm Axis Strategic Advisory with reportedly a staff of one - himself. The following August The Australian (pay wall) reported that Mr Hughes had been charged with cocaine possession after being busted by undercover police at a Sydney bar. Hughes’ profile also has him as a director of Farrell+Hughes, “a boutique strategic advisory and project delivery firm based in Sydney”, with a total of two employees.

With the State Government’s DestinationNSW openly colluding on illegal short-term rentals, and with Deputy Premier John Barilaro and State Opposition Leader Jody McKay’s Airbnb properties now back in the game after the lifting of travel restrictions, will State Ministers uphold the legal rights of NSW Residents, or will Parliamentarians favour offshore booking platforms whose intent is to maximise profits from residential housing? Who exactly is directing NSW Government policy? The answer to that question in terms of housing is those who are writing the pay cheques - Airbnb and Expedia.

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