NSW COUNCILS’ “ABROGATION OF FUNDAMENTAL DUTIES”

Last week Local Government NSW held its 2021 Destination & Visitor Economy Conference at Port Macquarie. Present were Minister for Jobs, Investment, Tourism and Western Sydney, Stuart Ayres MP and the Shadow Minister for Primary Industries, Investment and Tourism Jenny Aitchison MP. “Elite sponsor” Eacham Curry, Director, Government & Corporate Affairs Expedia Group/Stayz - Airbnb’s main competitor in the Australia market - welcomed delegates to the Conference Dinner on Thursday night. While Mr Curry wined and dined representatives from across our State, we reflected on the NSW Land and Environment Court’s judgment on a Council’s failure to take action against illegal short-term rental operators:

“…it appears that the council has been content for the Court to resolve the matter. On any view, this is unsatisfactory and amounts to an effective abrogation by the council of its fundamental duties and responsibilities. …The council, by its inaction, has, in my opinion, failed to fulfil its core functions and has failed its constituents.

NSW Fair Trading sent a ‘reminder’ email yesterday mentioning short-term rental accommodation, writing with winter holidays coming soon, it’s important for anyone involved in offering or renting out short-term rental accommodation in a strata property to comply with new requirements. “Owners corporationscan (sic) adopt by-laws that limit short-term rental accommodation in their strata scheme, by banning it in lots that are not the host’s principal place of residence. However, if someone lives in a strata property as their principal place of residence, they will still be able to rent out their home or rooms while they live there, or while they are temporarily away.” And as the Department of Fair Trading rightly notes: “A by-law must not be harsh, unconscionable or oppressive.”

Case law judgments from NSW Land and Environment Court most clearly find a “fundamental incompatibility” between a mix of residential habitation and short-term rental operations. Those who currently have to live near or next to short-term rentals do, most definitely, find their home conditions ‘harsh, unconscionable and/or oppressive’.

It could seem that NSW Fair Trading is deliberately misleading Residents to believe that the rights of those wishing to use residential premises for short-term Airbnb/Stayz/Expedia-type rentals have legislative priority, and that the terms and conditions – and official documents – under which neighbours have purchased or leased a residential dwelling are void.

For the record, and most importantly, Planning Minister Rob Stokes’ NSW Legislation that will come into effect on 31 July – State Environment Planning Policy (Short-term Rental Accommodation) 2021 - includes these clauses:

“Note…adjoining owners’ property rights, the applicable common law and other legislative requirements for approvals, licences, permits and authorities still apply. For example—

a. Section 137A of the Strata schemes Management Act 2015 provides that a by-law may prohibit a lot being used for the purposes of a short-term rental accommodation arrangements, and

b. Conditions of development consent, or a lease, may impose additional restrictions. And

h. The dwelling must not be a movable dwelling within the meaning of the Local Government Act 1993.

For those intent on renting and then ‘claiming’ a property as a principal place of residence, Noosa-based BnB Professional is running “over 5,000 live events all over the country” and free online webinars, coaching wannabe Airbnb ‘hosts’ in using other people’s rental properties to run 6-figure property portfolios. No license required. One suggestion was to avoid using one’s own home in order to circumvent paying federal capital gains tax; make sure your rentals belong to others. Thanks to Bnb Professional’s advice, Karen and Michael now have two rentals. Chris and Angela now know that you can just go out and rent other people's properties to Airbnb. And, other devotees include: Valenia, who has learnt how to ‘approach the owners’ of rental properties. Kalie and Wayne are at five properties and hoping to have 9-10 Airbnbs by the end of the year. Melinda is up to 17 rentals. And Claudio is aiming for 20 properties.

Search Sydney and you’ll find young Inna with 44 Airbnbs, or Kimi with 30 Airbnbs, or someone like Natasha and her 49 Airbnbs.

With Hipcamp, one can camp out in a suburban driveway (see photo), or on a rock ledge in a Curl Curl back yard. Northern Beaches Council, are you OK with that? (28 Adams Street.)

Ballina Shire Council is, according to today’s Echo, the latest council scrambling to implement an affordable housing strategy. In the wake of yet more record-breaking real estate price growth in the Northern Rivers earlier this month, Ballina Shire Councillor Ben Smith says: “We treat housing heavily as an investment or a get rich quick strategy…If households are paying more than 30% of their income for housing, such households are referred to as experiencing ‘housing stress.’” Residents of the Ballina Shire would appear to be facing the same issues with housing availability and affordability as so many others across our State. Ballina today:-