“THE RICH MOVE IN AND THE POOR JUST HAVE TO MOVE ON…That’s the way it is.”

Yesterday, World Homelessness Day, saw Byron Shire community residents launch a pushback campaign against short-term holiday letting operators in their area. Byron’s Echo News quotes campaign co-founder, Liz Friend: “A real estate agent said to me last year, ‘Well Liz, the rich move in and the poor just have to move on…that’s the way it is’.” While many residents support a plan to cap the use of homes for commercial hotel purposes to 90-nights per year, a group of business owners, calling themselves ‘Byron Deserves Better’, has launched a campaign in a bid to oppose any/all restrictions on their commercial use of housing. A tussle has broken out between short-term holiday operators and Council; conflicting figures have been quoted. It’s worth reading the full story HERE. Liz Friend said: “Turning so many properties into short-term holiday lets for the benefit of a few does not serve the greater majority. It is not the answer. There must be a balance between the permanent, long-term residents of Byron Bay and wealthy tourists. The community is losing out through the monopolistic attitude of a few.”

On 08 October, we wrote that one of the so-called ‘Byron Deserves Better’ mob, Grant Moffitt, had failed to disclose full details of the four “cottages” he operates as short-stays.

In their pushback against any zoning restrictions, the Byron Deserves Better website also quotes Norm Black from TripADeal: "Being one of the biggest employers in town, we have a clear perspective on this issue. We do not believe this Council proposal will have a positive effect on housing availability or affordability. What it will do is have an adverse impact on tourism which the town’s employment is built on. This is a knee jerk response. They won’t get the outcome they are seeking but they will do a lot of damage to Byron Bay."

We are yet to find any references made by Mr Black about the two Airbnb listings we understand are operating under his wife’s name – Black Cockatoo Newrybar ($3,870 for min 2-night stay) and Black Cockatoo Bangalow ($3,177 for min 2-night stay). Combined, the two Airbnb rentals generate $7,047 for a single weekend stay.

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AIRBNB ‘WINNER’ – QUENTIN DEMPSTER:

Airbnb has announced their 2022 Australia’s Host Award Winners. Listed among them, and guaranteeing a headline grab for Media outlets, is Quentin Dempster, journalist and former 30-year veteran of the ABC. His ‘Winged House’ at Table Cape, Tasmania, is heavily booked. It is still available on 26 December @ $578 for the night. The listing says the property is ‘Exempt’ from licensing: “This listing falls under Section 12 of the Land Use Planning and Approvals Act 1993.”

Dempster’s Airbnb may explain his complete neutrality when we notified him of the Airbnb immediately next to his Sydney home. And multiple Airbnbs directly opposite his Sydney home. The other eight Airbnbs in his residential street. And the other 28 Airbnbs in the street behind his Sydney home.

Airbnb ‘judge’, Merrydith Callegari, said of Dempster’s Airbnb: “I think the location of this listing and it’s design as well as the attention to detail of the Hosts makes this a very worthy winner.”

Merrydith Callegari is a member of Airbnb’s ‘Host Advisory Board’, and operates the Airbnb rental City Retreat, Lenah Valley, Tasmania. In 2017 Callegari was the ‘public face’ when the Tasmanian State Government deregulated Airbnb and Stayz. At the time, Planning Minister Peter Gutwin said deregulation would work towards addressing Tasmania’s accommodation demand. Concurrently, calls to protect the State’s demand for housing were ignored by Gutwin and Premier Will Hodgman.

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On today’s ABC Radio National’s Life Matters program they asked: Are there any short term fixes for the rental crisis? It was acknowledged that, due to the Covid pandemic, domestic tourism got a real boost, and that has meant a lot of residential properties going into the tourism sector through Airbnb and other short-term letting platforms. Increasing Commonwealth Government Rent Assistance (paid for by taxpayers) was considered as a (problematic) option to private sector tenants. During the program, broadcaster Hillary Harper said: “Can’t tell you how many text (messages) we are receiving about Airbnb and the terrible effect it is having.” Dr Chris Martin, Senior Research Fellow in the City Futures Research Centre (UNSW) noted that recent reforms to our State’s Planning System “overall, we have taken a really permissive approach to Airbnb and allowing houses to be used as tourism accommodation.”

Again, and without notice, Neighbours Not Strangers has been blocked from posting on the Radio National social media sites (see photo above).

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APPOINTMENT OF THE HONOURABLE JUSTICE JAYNE JAGOT:

The Law Council of Australia recently welcomed the historic appointment of the Honourable Justice Jayne Jagot as a Justice of the High Court of Australia.

“Justice Jagot has served the people of this nation as a Judge of the Federal Court of Australia since 2008 and previously a judge of the Land and Environment Court of New South Wales from 2006,” Law Council of Australia President, Mr Tass Liveris said. “For nearly two decades, Justice Jagot has demonstrated her commitment to the rule of law and access to justice in this country. She will continue to be a dedicated and respected jurist as she takes up this new role in our nation’s highest court.”

It was Justice Jagot who, in our Land and Environment Court (NSWLEC), upheld Justice C Brown’s decision in the case of 187 Kent Street v Council of the City of Sydney. Owners of residential apartments, together with their short-term letting agent – Australian Executive Apartments – had applied to Council to have the Development Approval of Residential Lots altered to permit commercial short-term rentals. The request was denied by Council; the group to Council to the NSWLEC. The group lost.

In the appeal brought to the Court, the Solicitors acting for the Kent Street group argued:

1. The Commissioner erred in law by departing from the rules of procedural fairness in failing to permit the Applicant to call further evidence in relation to the amenity impacts of the proposed development, namely, noise amenity impacts of the proposed development.

2. The Commissioner erred in law in making the following findings of fact that of which there was no evidence which infected the whole of the Commissioner’s reasoning:

(1) The greater frequency of short-term occupants in and out of the building is potentially disruptive for long-term occupants, particularly at times such as early in the morning or late at night through disturbance such as doors closing, noise from adjoining apartments and general conversation in common areas; (2) Noise mitigation measures would be unlikely to remove all the potential noise impacts caused by short-term occupants; (3) Long-term occupants would generally have a greater expectation and promote a more quiet and peaceful amenity than short-term occupants, as they would regard their apartment as a home compared to a temporary place to reside for short-term occupants; and (4) Long-term occupants are also likely to be less tolerant of disturbances and likely to be concerned with activities that may potentially cause damage to the building, as they would have a greater feeling of ownership and ultimately be responsible through the Owners Corporation for repairs. (5) Appropriate amenity cannot be provided with a mix of residential and serviced apartments that share the same floor and access points.

3. The Commissioner erred in law by failing to give proper reasons for concluding that there is a fundamental incompatibility between a mix of residential and serviced apartments that share the same floor and access points and that without further evidence concerning noise amenity impacts such conclusion was without reason or evidence.

Justice Jayne Jagot dismissed the appeal, accepting:

“There is a difference in the living and activity patterns and the behaviour of short and long-term residents, and the responsibility to resolve and control any conflict between the uses and occupants falls entirely upon the serviced apartment managing agency. Short term residents have no long-term interest in the maintenance of the amenity within the building or the surrounding area…”

Justice Jagot’s concluding judgment:

MINISTER ANTHONY ROBERTS – NSW MINISTER FOR PLANNING, MINISTER FOR HOMES:

The State Environmental Planning Policy (Affordable Rental Housing) Amendment (Short-term Rental Accommodation) [SEPP] 2021:

“Exempt development—non-hosted short-term rental accommodation…for a dwelling located in a prescribed area---the dwelling is not used for non-hosted short-term rental accommodation for more than 180 days in any 365 day period.”

Minister Roberts was asked for details of the number of dwellings and action taken by the NSW Department of Planning, where the 180-day limit had been exceeded this year.

No acknowledgement of the question nor details were received.

Minister Roberts was asked why the NSW Department of Planning was issuing licenses where the short-term rental operations were in a structure that does not have Development Approval, and where the short-term rental operations is classified by the Local Government as an “Illegal Use of Premises”, and as per the Determination of Development Application and Certificate of Classification, and as per NSWLEC Ordersand Penal Notice. Luke Watson, Executive Director, Housing and Economic Policy responded [MDPE22/2036]:

“…it is important to clarify that the issuing of a registration number does not mean that the Department has issued an ‘approval’ for the dwelling to be used for STRA, only that the host had declared that the premises is used for STRA and complies with the STRA Fire Safety Standards…Councils in NSW generally have responsibility for undertaking any enforcement action under the STRA policy, including registration compliance.”

“…the NSW Government’s recently released $2.8 billion (of taxpayers’ money) housing package aims to boost housing supply, fast-track critical infrastructure and offer financial relief for first home buyers over the next four years…”

“…NSW residents require confidence and certainty when making economic decisions based on policy decisions…Unless there are new matters that you wish to raise with the Department or the Minister, we will not be entering into further correspondence with you.”

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For those who acquired their residential dwellings fully aware of the development consent conditions intended to prevent commercial short-term lettings, it is considered that Minister Rob Stokes’ SEPP and the legislation now in place in NSW is “akin to an acquisition of valuable proprietary rights without compensation”. Those who had wished to live in a quasi-service apartment building or a tourist compound would have purchased into such a scheme. The Government and its Ministers’ actions are considered by many to be “grossly unfair”.

It ought to be obvious that the enforcement of development consent conditions in the Land and Environment Court is an exercise of statutory enforcement power; and should be respected.

The NSW Government has lightly assumed that the amendment of the exempt development provisions in the SEPP invalidate conditions of development consent that were in force to restrict or prohibit short-term letting.

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

Neighbours not Strangers