1st NCAT case for AirBnB by-laws under SSMA2015 ?

JimmyT said, of Dobrohotof v Bennic:  “The case you highlighted was one that established that a house used exclusively for holiday rentals was not technically a dwelling.”  What is crucial is that the Hon Justice Rachel Pepper clarified what is a “dwelling” and judged that short-term visitor/holiday rentals were not the intended nor appropriate use of a “dwelling”.

JimmyT said:  “the only people who want to do something about it – strata owners…”  There are NSW Resident Action Groups – non-strata – who have been campaigning on this issue for over a decade.  (One such rocket – item of correspondence – was sent yesterday by those leading the charge on the far north coast.  They are coalition partners of Neighbours Not Strangers.) The impacts of STRs are the same the world over, be it in Residential zones (suburbs) or Resdential strata.  The “severe” impacts on neighbours are exacerbated in strata as we share the costs of common property upkeep plus the disruption/destruction caused is a mere wall away.

Dobrohotof v Bennic must still be considered the definitive ruling on STRs – former Commissioner of the Land and Environment Court referred us back to this judgment a few days ago.  Read this judgment carefully; it contains many points of reference which are critical to the case and arguments against STRs

For those living in strata in NSW there is further weight given to us in another LEC case, where the infamous STR operator at the Bridgeport building had earlier applied to have the DA on the residential strata levels at 187 Kent Street altered to ‘mixed use’ (which is effectively what the ‘by-law option’ being proposed now could do – ie enforce or overturn a DA of ‘residential use only’).   The Application plus the Appeal to the LEC – championed by the Council of the City of Sydney, who are now recommending that STRs be deemed ‘complying or exempt development’,  lay out precisely why mixng STRs with permanent residents is “fundamentally incompatible”.  If you’ve not yet been affected by STRs…just you wait.

To place the responsibility on individual owners to see to the enforcement of a DA, plus all other levels of compliance with Federal, State and Local Government Legislation, is insane plus so damaging and unfair.

It should and must be Local Councils who are responsible for enforcing Planning law, not an individual owner in a Strata scheme:

“…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. These duties include, amongst other things, to manage development and coordinate the orderly and economic use of land within the area under its control. By leaving it to the Court to determine this important issue, the council, by its inaction, has, in my opinion, failed to fulfil its core functions and has failed its constituents.” (Justice Rachel Pepper, Dobrohotof v Bennic.)

Tell us:  what other issue and area of legislation is completely set aside with Councils declaring that they won’t enforce the law?  Our NSW Minister for Local Government should be coming down hard and fast; Local Councils must be mandated to enforce the legislation.  Could it be that Gabrielle Upton is influenced by the fact that just one of Deputy Premier John Barilaro’s properties is rented out on Airbnb for $1,850/night, plus one of her former Staffers is now a member of Airbnb’s army of employees here in NSW?

Lady Penelope

As a lay person, I’d think the verdict is ‘in’ on how the NSW Land and Environment Court judges mixing STRs with permanent residents?  (see below)  I’m just referring to the following case law, which doesn’t include the Blues Point Tower 1990 judgement which all the STR operators refer to as deeming their activities “illegal”.  This is a Planning/Zoning issue.  As an individual who has had to deal with this within a large strata complex, to put the onus onto individuals to cope with then attempt to sort this issue out is unfair, to say the absolute minimum.

There should be fines issued by Councils for breaking Zoning regulation, as with any other fine.  And if the offender doesn’t comply, they should then be marched swiftly into the Land and Environment Court.:

(Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 288; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538A-B; [1992] North Sydney Council v Sydney Serviced Apartments Pty Ltd; [2001] Foster v Sutherland Shire Council; KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; (2006) 148 LGERA 117 at [8]-[18]; City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd; [2007] 187 Kent street v Council of the City of Sydney; [2007] 187 Kent street v Council of the City of Sydney Appeal; [2008] NSWLEC 97; (2008) 158 LGERA 67 at [38]; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 at [35]-[36]; Najask Pty Ltd v Palerang Council [2009] NSWLEC 39; (2009) 165 LGERA 171 at [15]; Vic Vellar at [32]; Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 at [110]; 820 Cawdor Road at [24]; [2011] Council of the City of Sydney v Oaks Harmony; [2011] Council of the City of Sydney v Oaks Hotels and Resorts (re Maestri) 234; [2011] Council of the City of Sydney v Oaks Hotels and Resorts (re Maestri) 235; GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 at [20]-[27] and Haddad at [47]); [2013] Dobrohotoff v Bennic; [2014] Council of the City of Sydney v Con Kotis/Australian Executive Apartments at [14/4923].

Correct Ziggy.

This is a Zoning (Local Council) issue, not a strata issue.  Councils must be mandated to enforce zoning legislation.  

Have you noticed Councils no longer issue parking and other fines?  Well, they still do this, so they need to be enforcing our Determination of Development Applications and the Residential certificates of occupation too.

It’s unfair that individuals and groups within residential buildings/suburbs have to struggle through the Tribunal/Courts when they have clearly bought into a residential property/suburb.  We’re being pitted against multi-billion dollar platforms who use ‘privacy concerns’ to hide the extent of what’s going on.

In 2013 a 1,200-page Request for Orders to the Tribunal was dismissed; it’s zoning…go to Council.  The Council in question finally took the matter to the Land and Environment Court and Orders were issued there, together with a Penal Notice.  There was NO contest.  The respondent knew he was absolutely in the wrong.

Thanks JimmyT.

Can one add, it’s inconceivable that local government employees to not understand our legislation or that the ‘burden of proof’ in circumstances such as the illegal short-term tourist/visitor rental of residential homes is asolutely straight forward and uncomplicated:  it is based on the ‘balance of probability’ and not that required as ‘criminal proof’ ie, ‘beyond a reasonable doubt’.

All the available evidence, such as availability calendars that are clearly viewed on booking platforms, real estate agents’ booking calendars that can be freely subpoenaed, advertising signage, affidavits from neighbours, photographs, copies of reviews, etc, is more than enough evidence to proved that a change of use has occurred when an apartment is operating in breach of zoning as a short-term rental.  

Is it a case that all Council Staff across NSW are so profoundly incompetent, or is this a sign of collusion between those working within councils and the short-term rental platforms.

We should all contact the Ombudsman.  Now.