ILLEGAL SHORT-TERM RENTALS - WHO’S CALLING THE SHOTS?

John Gudgeon, President of Holiday Letting Organisation Byron Bay (HLO), sat before a Parliamentary Inquiry in March 2016 and, under oath, told Committee Members that, in terms of short-term rental accommodation (STRA): “Basically we are looking at the fundamental use of a dwelling as being residential use. There is no difference in that residential use in regard to time—whether a person is there for a day, a week, a year or whatever.” Not so, according to sections of the NSW Residential Tenancies Act. And certainly not so, according to a long line of jurisdiction in the NSW Land and Environment Court (LEC).

When asked in Parliament if residential properties can be used for any type of leasing purpose – short-term or long-term and that that should comply with residential zoning - Gudgeon replied that that was the situation at that time. Gudgeon also stated under oath that his organisation had sought and obtained legal advice that said: “…any change to a local environment plan (from residential to holiday letting) can be only prospective, not retrospective,” which was at complete odds with his claim. He went on to say that short-term rentals were “a behavioural management problem, not a planning problem…I cannot run something else in a residential dwelling, it must be residential use.”

In last Wednesday’s Byron Shire Echo (page 4), John Gudgeon claimed: “…the matter was finally put to rest when the NSW State Government passed legislation to amend the State Environmental Planning Policy (SEPP) and the Standard Instrument Local Environment Plan (LEP) to include a definition of STRA as a permitted use of residential dwellings...this means all residential dwellings are (and always were) permitted to engage in STRA without any requirement to apply (for permission). It is a standard permitted use of a residential property, full stop. When the definition was being drafted, there was a specific note that stated that STRA was not captured by the Tourist and Visitor Accommodation category.”

We are yet to see any changes to the [SEPP].

One well known Sydney-based short-term rental operator, along with the Council for the City of Sydney, fronted the NSW Land and Environment Court, not once, not twice – when the Court repeatedly judged mixing residential with short-term rentals “incompatible”, but three times. (Other case law judgments of fundamental ‘incompatibility’ exist.) On the third occasion this particular respondent faced the Court he did not contest Council’s application, so no judgment was required. The Orders issue to him went on to include a PENAL NOTICE, in the event that he continued with his short-term letting operations.

John Gudgeon also stated before Parliament that he established his organisation in 2005 and that HLO relies “on residential buildings to provide most of the bricks and mortar accommodation…the code of practice that we wrote back then was transformed by the New South Wales Department of Planning.” It is reported that Gudgeon was on the 2012 Code of Conduct committee. The Code, endorsed by Minister Brad Hazzard, was launched in April 2012 and amounted to the industry essentially regulating itself, with no recourse for either Councils or residents who were suffering the negative effects of holiday letting in their buildings, towns or suburbs. In the interceding 12 years we can find no evidence of any punitive action under this self-administered Code against what the LEC describes as “severe, adverse impact on the amenity and wellbeing” of neighbouring residents. Indeed, readers of the Byron Echo wrote in 2016:

“At the first community meeting held on the Australia Day weekend in 2013, due to the trashing of Byron Bay at New Year, many in the audience said that the Noisy Neighbours Hotline provided by HLO Byron did not work. John Gudgeon later in the year described this security service as a ”work in progress”. Nothing has changed and there has been no improvement. This security service is a complete waste of time. If it is going to be used by holiday let owners it needs a complete overhaul. Start by telling the security people to get out of their vehicle and investigate around the holiday let. Legally they should be able to do this if given permission by the owner. Develop standards that are more in line with community standards in quiet residential areas. Much more effort is required by holiday let owners and managers to retain residential amenity.”

And

“Exactly my feelings. I can verify that HLO Noisy Neighbours Hotline security is ineffectual and plain slack. When their security car pulls up and the person in it leaves the engine running, winds down the window then drives off without getting out of the vehicle then that is flawed investigation. Just slack and a waste of money to the HLO and the holiday let owners. After its introduction about 10 years ago it became obvious that this security service was not going to work and its introduction was a PR stunt. The same as the voluntary code of conduct for the holiday lets with minimal protection for neighbours of HL. Another disaster and PR stunt. The only answer is to move HL out of residential zones. I doubt this will happen.”

Fast forward to today. “‘Quiet Hotline’s’ principal, John Gudgeon, has fifteen years of hands on experience in the STRA sector.” ‘Quiet Hotlines’ gives a ‘quick guide to rental compliance’. The ABN listed on John Gudgeon’s Quiet Hotline website – ABN 123 456 789 – is “not valid”. The site though does list the same telephone number as Gudgeon’s HLO website. Byron residents believe that Mr Gudgeon appears to be advertising for increased business for the security company attached to ‘Quiet Hotline’ and ultimately HLO. We must stress that locals have not been able to verify a story circulating that Mr Gudgeon’s wife is the owner and sole director of the security company linked to ‘Quiet Hotline’. If a complaint from a neighbour is substantiated, the occupants are charged $135 from their ‘bond’. No charge is levied if a complaint is not substantiated.

Australian Short-Term Rental Accommodation (ASTRA) Board Member Joan Bird has in the past encouraged STRA landlords to work with John Gudgeon “to fight the very active antagonists” – those who seek to protect their homes, housing and community (see photo).

Byron resident and coordinator of VOHL (Victims of Holiday Letting) Doug Luke replied to John Gudgeon’s letter of last week and the claim that STRA is “a standard permitted use of a residential property”. Given that John Gudgeon has paid for what appears to be a $800 advertisement for ‘Quiet Hotline’ in today’s Echo (page 6), we can only hope that The Echo will publish Mr Luke’s response, and that advertising dollars do not override the voices of local residents.

Who exactly is calling the shots, in terms of residential housing and illegal holiday rentals – HLO and ASTRA, whose Members are invited by NSW Ministers to sit on advisory committees, while residents groups such as NSW Council for Civil Liberties and others are excluded? Do our Courts have any say on this matter, given they cite such legislation as the Civil Procedure Act 2005, the Environmental Planning and Assessment Act 1979, ss 4, 76B 123, 124, 149, the Interpretation Act 1987, s33, Land and Environment Court Act 1979, ss 16(1A), 20(2), 22, Land and Environment Court Rules 1996, State Environmental Planning Policy No. 65, (numerous) Local Environment Plans, the Uniform Civil Procedure Rules 2005…

Yes, who is exactly calling the shots when it comes to our homes?

Homes not Hotels Communities not Transit Zones People before Profits

Neighbours not Strangers