Will Anyone in NSW Enforce Legislation?


Late last year, on 01 November, NSW Fair Trading’s Code of Conduct for the short-term rental accommodation industry - aka, commercialisation of residential housing, came into effect. (For the Byron Shire, the start date was 01/12/21.) Regulation 2.2.5 (page 8) of the Code states:

“On and from the day that registration on the premises register becomes mandatory under planning laws, a booking platform must ensure that short-term rental accommodation premises are not advertised on the booking platform’s online booking service unless the premises is registered on the premises register, and the registration number for the premises is displayed alongside the details of the premises on the booking platform’s online booking service.”


Booking platforms must provide relevant information. And, under this Code, (if) a complaint includes an allegation of a contravention of the planning law, the Commissioner may ask the complainant to take the matter to the relevant local council and decline to accept the complaint). Unregistered premises must be delisted from a booking platform. Penalties apply to breaches of the Code.

NSW Fair Trading’s Code is meant to operate in conjunction with Minister Rob Stokes’ Environmental Planning and Assessment Accommodation (Short-term Rental Accommodation) Amendment Regulation (No 2) 2021 [SEPP] (09/04/21). That legislation clearly states that the use of a residential dwelling “for the purposes of short-term rental accommodation must otherwise be lawful” (page 5, Part 9).


As we’ve reported before, on the Hansard record (NSW Parliament) is this response from a former Minister for Fair Trading:


“The Office of Fair Trading would examine any improper or questionable action undertaken by (an agent), including actions that would be a breach of the consumer protection provisions of the Property, Stock and Business Agents Act… Penalties for breaching the legislation include a range of disciplinary actions from a reprimand to cancellation of a licence and disqualification for involvement in a real estate business.”


Data from Inside Airbnb shows that, as of 08 January 2022, there are 20,879 dwellings in the Sydney Metropolitan area listed on Airbnb’s platform. Of those listings:

  • 1,279 properties are showing as ‘Exempt’. Amongst those, the minority are for hotels or accredited B&Bs etc. The vast majority appear to be individuals running anything from 1-40+ homes as short-term rentals,

  • 6,444 properties have a registration number noted in their listing, though often a single registration number is listed against multiple homes,

  • 13,134 homes had not been registered,

  • 10 listings have an ABN shown instead of a registration number, and a remaining eight properties have obscure numbers listed instead of a government issued registration number.

There is of course plenty of case law precedence, when one speaks of judgments in the NSW Land Environment Court and the “Illegal Use” of residential premises for short-term tourist/visitor rentals. It is blindingly clear that Airbnb for one is in clear breach of our State’s legislation. With half a brain, one can also easily identify many short-term rental operators who are intentionally claiming they are ‘exempt’ and have no need to comply with licensing regulations, while at the same time engaging in the “unlawful” use of housing. And there are still many, many more who are failing to register properties, while platforms such as Airbnb, Expedia/Stayz and 100s of others continue to advertise homes with no legitimate registration number entered.


Back in mid-2018, at the time of our current Fair Trading Minister, the Hon. Eleni Petinos’ reported ‘vomitgate’ saga - and ‘sexting exchange’ with the Hon. Matt Kean MP, who then held the Fair Trading portfolio and put together the ‘Code of Conduct’ - Petinos spoke in Parliament in support of Kean altering legislation to permit the short-term letting industry’s use of housing (see hansard). Despite Matt Kean signing off on a document stating that stated, in 2014, there were an estimated 216,000 short-term rentals in NSW/ACT, Petinos (incorrectly) told Parliament: “I reiterate that in my electorate less than 30 people currently let their properties through Airbnb…”


Perhaps we could demonstrate to the Hon. Eleni Petinos just two examples in Sydney of what appear to be clear breaches in legislation:


Airpillows 31 ‘Exempt’ NSW listings (81 Airbnb listings in total)

Accommodation Sydney 44 ‘Exempt’ NSW listings (many appear to involve overcrowding)

And:

Snow Escape Holidays * 19 ‘Exempt’ NSW listings

*This operator was one of two ASTRA representatives invited to collaborate on the Code of Conduct committee, which devised the recently introduced regulations. Residents are asking why all listings for this agent are ‘Exempt’.


Will Minister Petinos now instruct her staff to liaise with Inside Airbnb’s Murray Cox, so that they may understand the true state of Airbnb’s illegal use of our homes? This might start the process whereby other booking platforms are investigated.


In her role as NSW Minister for Fair Trading, will the Hon. Eleni Petinos see to the enforcement of our legislation, or does legislation in our State count for naught?


Will Minister Petinos take action against Airbnb, Stayz and others’ illegal listings and profiteering?

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