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The Federal Election campaign has shone a light on the cost of housing and the plight of many across our society. The #Right2Housing is encapsulated in Article 11 of the United Nations’ International Covenant on Economic, Social and Cultural Rights (ICESCR). Australia signed this declaration on 18 December 1972 (ratified 10 December 1975). Article 11: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

According to Homelessness NSW, back on Census night 2016 there were 37,715 people in NSW who were classified as being homeless (up 37% from 27,479 in 2011). This was higher than the national increase of 14%. The homeless rate was 50.4 persons for every 10,000 persons in the 2016 Census…” Six years later, apparently no further numbers have been released by the Australian Bureau of Statistics. Look then to an official NSW Government report; “research from BIS Shrapnel in 2014 - quoted by the NSW Government - found that:

  • There (were) an estimated 623,000 holiday rental premises across Australia and 215,964 in NSW/ACT,

  • Of the total holiday homes owned in NSW/ACT, an estimated 50 percent, or 108,000 holiday homes, are made available for rent when not in use by their owner,

  • 77 per cent of holiday home owners use their holiday homes for personal use, on an average of 7.5 weeks a year…

In October 2017 we were able to report to the NSW Government that the Sydney metropolitan area had 27,360 Airbnb rentals. As at 07 December 2021 there were 20,880 Airbnb rentals across the same area; 4,931 of these in the City of Sydney local government area alone (InsideAirbnb data). This fall in Airbnb numbers is most certainly a result of the covid pandemic together with constant reports by landlords of high levels of dissatisfaction when attempting to resolve complaints with Airbnb. It must be stressed that Airbnb is one of hundreds of online booking platforms on which residential housing is listed as holiday rentals; prior to Court Orders, former NSW State MPs Thomas George, John Williams and Kevin Humphries had their properties listed on some 150+ platforms.

Despite such clear indications of a major housing crisis, in November last year Rob Stokes MP went ahead with a change in planning legislation. Calling his State Environmental Planning Policy [SEPP] ‘Affordable Rental Housing’ while giving the go ahead to short-term rental accommodation is most certainly an insult to all those living under severe housing stress or indeed the homeless. The Stokes SEPP does clearly state:

“…the use of the dwelling for the purposes of short-term rental accommodation must otherwise be lawful, and

Note. In addition to the requirements set out in this Part, 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 arrangement, and

(b) conditions of development consent, or a lease, may impose additional restrictions.”

In Berlin (as in New South Wales) there is a registration system for short-term rentals with €100,000 fines for non-compliance. Landlords can only rent their property as a short stay for 90 days a year – and said landlords must apply for “change of use” permission; the penalty for non-compliance in this latter instance is €500,000. The NSW Department of Fair Trading writes that from 1 November 2021, hosts must register their STRA premises on the Department of Planning Industry and Environment’s STRA register. Relevant properties must be registered before they can be advertised or offered for short-term rental…

Thousands of homes across NSW are still being advertised without registration numbers, while in so many other cases, landlords are claiming they are ‘Exempt’ from registration. Note too: the NSW Department of Planning is also issuing licences, where such a use is judged by the NSW Land and Environment Court (LEC) and others to be an “Illegal Use of Premises”, ‘Class 4’ of the Court’s jurisdiction. According to the LEC: “A person who fails to comply with an order of the Court is liable to be punished for contempt.” As of 29 July 2015, the maximum penalties imposed under ss 125A – 125C of the Environmental Planning and Assessment Act 1975 have increased significantly, with:

(a) Tier 1 offences (wilful or negligent conduct) now carrying a maximum penalty for corporations of $5 million dollars and $1 million for individuals; and

(b) Tier 2 offences now carrying a maximum penalty for corporations of $2 million dollars and $500,000 for individuals; and

(c) Tier 3 offences now carrying a maximum penalty for corporations of $1 million dollars and $250,000 for an individual. (Pepper J Criminal prosecutions in the LEC.)

Who has the funds available to take action in the NSW Land and Environment Court against the Minister for Planning and Homes, Anthony Roberts, and/or his Department? Or in turn, will they – or any NSW Local Council – take action against Airbnb, Expedia and others for advertising and profiting from housing, when such use is still an illegal use of residential dwellings?

Australia is a signatory to the United Nations’ International Convention on Economic, Social and Cultural Rights. This question, too, must be asked: When will legislators meet our obligations under this convention?


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