NSW – MINISTERIAL DISCRETION: AND THE MINISTER HAS SPOKEN


In a 2013 NSW Parliament ‘Briefing Paper’ under ‘Ministerial Discretion’, it states: “The Minister and Director-General of the Department of Planning are able to exercise a number of planning functions under the Exposure Bills. The breadth of Ministerial powers specified in the draft legislation has proven controversial, with several stakeholders commenting on a perceived lack of oversight or accountability. Significant powers available to the Minister include: …The power to make wide-ranging regulations, including exempting any persons or organisations from any provisions of the planning legislation.” The Briefing Paper goes on to say: “The full range of current land zonings will remain as they are.” Section 3 of the paper presents a broad overview of the range of Ministerial powers provided under the Exposure Bills. “A number of Ministerial powers have attracted extensive commentary in submission and in public debate. These include: …The power to make wide-ranging regulations, including exempting any persons or organisations from any provisions of the planning legislation.” A Minister’s obligation ‘to follow standard plan-making procedure’ is removed. The Minister may also ‘make, amend or replace any provision of a local plan’ – typically Local Government Authorities, ie Councils.


NSW Minister for Planning and Public Spaces, the Honourable Robert Gordon Stokes MP, submitted to Her Excellency the Governor, a State Environmental Planning Policy (Affordable Rental Housing) Amendment (Short-term Rental Accommodation) 2021 [SEPP]. The SEPP was published on 9 April 2021. Brief, the SEPP allows dwellings constructed for the purpose of housing residents to be used as commercial tourist/visitor accommodation. If the dwelling is classified under the Building Code of Australia as a class 1b or class 2-9, then the dwelling must have a current fire safety certificate or fire safety statement. By this, one understands a single-family freestanding dwelling (class 1a) does not require any fire safety certification however a residential flat dwelling operating as an Airbnb-type rental must meet some fire safety certification. Under this exercise of Ministerial Discretion, the short-term commercial rental of housing in NSW is ‘exempt development’.


For 14 years Greg Haywood was a Director (President 2013-2016 retired) of Strata Community Association (NSW). Some years ago the SCA welcomed news that the City of Sydney was planning to take action against owners of a building in Sydney’s CBD who had been allowing short-term lets, contrary to zoning and/or approval. Mr Haywood said that Council’s action sent signals to other owners in other buildings who were also illegally allowing short-term rentals: “Short-term leasing, unless specifically allowed and catered for, is quite frankly a pain for long-term residents who have to put up with the comings and goings essentially of holiday-makers who have no regard for the peace and quiet of the other residents. Our members are sick and tired of having to deal with the issues that illegal short-term lettings bring and action by authorities is long overdue…” Mr Haywood went on to say: “The irony is that some of our elected officials are caught up in this... Let’s hope the Minister for Fair Trading speaks to some of his colleagues about their behaviour and the laws concerning residential strata and tenancies.”


In our last Media Release we provided the names and Court Orders with Penal Notice, issued against three of the State MPs in said building – other MPs supported their colleagues in their “Illegal Use of Premises”. General Counsel NSW Premier and Cabinet wrote (Reference: A223460): “If you have any evidence of corruption you should bring the material to the ICAC’s attention...Neither the Premier, nor this Department, has any role in administering the Code of Conduct for Members of Parliament.” The ICAC determined (ref: E18/1157) that the actions of the MPs did not involve conduct warranting any investigative action. One of the MPs lost his seat in Parliament after a reported incident of an ‘abhorrent sexist slur against a female cabinet minister’. (I, too, have been on the receiving end of extremely repugnant, public comments from said individual.) Not all was lost: the former Member for Murray Darling was subsequently awarded an Order of Australia (OAM), and the Chairmanship of The Far West Initiative by Minister for Regional Transport and Roads Paul Toole. The ‘Honourable gent’ still holds the position. The other two MPs and their supportive cohort went on to vote on legislation dealing with short-term rentals, without declaring any conflict of interest or earlier involvement in the “illegal use of premises”.


Mr David Hale was one of the Officers in Attendance at the NSW Parliamentary Inquiry into the ‘Adequacy of the Regulation of Short-Term Holiday Letting in New South Wales’. Parliamentary website records indicate clearly the number of submissions marked by State MPs as ‘Confidential’ – to make available to any third party a ‘confidential’ submission would render an individual ‘in contempt of parliament’. And Mr Hale might well remember the author of one of these ‘confidential’ submissions who was denied an opportunity to address the Inquiry Members and sat in Parliament House throughout the hearings. Mr Hale sought out that individual.


Yesterday the ABC reported Port Douglas real estate agent Phil Holloway saying he has been selling properties to people from Victoria and NSW site unseen. “It just hasn’t happened before…who knows where this will finish up in the next few months.” Many of the new owners won’t reside in the town permanently, and a lot of places being sold are being turned into holiday accommodation, tightening an already tight rental market. Mayor Michael Kerr says, “It’s taken properties that were used for accommodation out of our market, and added extra strain to the employee side. There’s nowhere for employees to live.” Mayor Kerr says the council is trying to approve new housing projects quickly, but it’s limited in what it can do to help:


“Our planning scheme, it clearly states that you can’t have short-term accommodation in these residential areas, and yet we’re bound by a lot of the state laws, and our hands are tied to try and stop that.”


We endeavour to quote government and reliable sources. Our latest posting to social media quoted NSW Land and Environment Court judgments: Dobrohotoff v Bennic [2013] NSWLEC61 and 187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382. In the same post we quoted Chris Brown (AM). Between 1992-2011, Mr Brown led two of Australia’s most high profile CEO-based industry associations – the Tourism & Transport Forum and Infrastructure Partnerships Australia; he is now Executive Chair of Taylor Street Advisory. Again – and apparently – by quoting NSW case law and those who have “contributed a wealth of experience and knowledge”, we have fallen foul of Facebook standards, which prevent things such as false advertising, fraud and security breaches. Facebook goes on to say: “We don’t allow people to get likes, follows, shares or video views in a way that’s misleading to others. We define spam as things such as: Repeating the same comment, Getting fake likes, follows, shares or video views, coordinating likes and shares to mislead others about the popularity of something.”


Does our Neighbours Not Strangers campaigning ever compete with the brilliant provocation of Friendlyjordies’? (See Friendlyjordies latest video, Corruption in our State.) Or would we ever be measured in terms of the downright false information spewed forth by one Donald J Trump, thus seeing us removed from the Facebook platform? We’ve already been thrown off Twitter multiple times.


For years we’ve requested meetings with Ministers of the NSW Parliament – nothing granted. We have lodged multiple submissions – zero acknowledgement or response. We have written and posed direct questions to our legislators – no answers are ever forthcoming. Who/what is campaigning against us through Facebook – the Minister or his Department?


Parliament says in 2014 there were an estimated 216,000 short-term holiday rentals in NSW/ACT. Using Ministerial Discretion, our Minister for Planning and Public Spaces has published new legislation. This, while in other jurisdictions policy makers are scrambling to enact the different levels of legislation and case law precedence that had seen our State with ‘world’s best’ legislation. And it’s looking like our small groups of residents are about to be well and truly silenced.


#Right2Housing Homes not Hotels Communities not Transit Zones People before Profits Neighbours not Strangers

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