TOMORROW: WILL BYRON BAY COUNCIL BETRAY ITS RESIDENTS? And, AIRBNB’s IPO

In yesterday’s Byron Shire Echo (page 9), local John Gudgeon broke what appears to be a two-year silence, claiming:

“Holiday letting is still legal in Byron LGA (local government area) Residential Zones without development consent. It was always an innominate residential use as is longterm (sic) renting.”

Dudgeon is ‘president’ of HLO (Holiday Letting Organisation Byron). Along with Grant Hawkins, Partner, Byron Bay Accom, “a $4 Million Accommodation Booking Service” (81 short-term rentals, 66 of which are currently listed via Airbnb), Dudgeon was invited to appear before a NSW Parliamentary Inquiry back in March 2016. Under oath, Gudgeon told Committee Members his organisation had addresses for 750 holiday rental properties across the Byron shire. Both Gudgeon and Hawkins spoke at length about a ‘code of conduct’ and referred to a HIRA submission to Parliament. HIRA’s Trevor Atherton acknowledged in a subsequent hearing before the Victorian Parliament that short-term rentals are indeed ‘Illegal’ in NSW.

Gudgeon however still argues that his Cape Breeze Byron ($666/night) and second Evans Street property, which still has ‘A Perfect Stay’ 158 Airbnb listings) sign outside, are operating as ‘legal’ holiday rentals. In his 2015 written submission to the NSW Parliament, Dudgeon argues that the 2013 NSW Land & Environment Court (LEC) case law judgment – Dobrohotoff v Bennic – is misunderstood, claiming that activities “such as bucks and hen parties” are not permitted, yet short-term rentals are. And under ‘Land Use, 7.2’ in the same document to Parliament, Mr Dudgeon writes: “…as far as land use is concerned the primary use of the dwelling is the same for short term occupation as it is for long term.” NSW has a long line of jurisdiction in this area, and it can be argued that Mr Dudgeon’s assertions are utterly wrong. The Dobrohotoff v Bennic case and the findings are exceptionally clear. Such a breach:

“Offends and undermines the planning regime of the…LGA and ultimately of the State. The harm caused to the environment is not limited to the undermining of the planning regime. The adverse impact on the amenity and wellbeing of the (neighbouring residents) has been, as the evidence overwhelmingly demonstrates, severe. 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. 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.”

In the event that another respondent continues with his “Illegal Use of Premises” (City of Sydney Council Senior Solicitor), one well-known set of Orders from the Land and Environment Court includes a ‘PENAL NOTICE’.

Dudgeon’s HLO Byron was also party to a 2012 ‘Holiday Rental Code of Conduct’, as reported by the State Government’s DestinationNSW. “The Code provides a uniform, practical guide for those engaged in holiday rentals and a platform for a close working relationship with both the state and local levels of government” says John Gudgeon. The Northern Star wrote of HLO’s “…new batch of fridge magnets carrying the number of a hotline aimed at dealing with rowdy holidaymakers being delivered around Byron Bay…Repeat offenders in holiday let houses face eviction.” Efficacy of this State Government endorsed ‘Code of Conduct’ and HLO’s fridge magnets? A complete failure.

In 2018 Byron Shire Council announced that it would “commence a major prosecution” in the Land and Environment Court. Subsequent to the 2018 conference, in 2019 an appeal was lodged in the Court - Ardill Payne & Partners v Byron Shire Council [2019] NSWLEC 1125 - over Byron Shire Council’s refusal of a Development Application for the conversion of a “shed” and an “observatory” and a “barn” to a Holiday Cabins. The Land & Environment Court dismissed the appeal.

See also Tweed Shire Council v Taylor [2019] NSWLEC 45, “A tree house erected and used unlawfully – Orders the respondents…to demolish and remove the Building…Orders the respondents to pay the applicant’s costs of the proceedings.”

No Mr Dudgeon. According to NSW Land and Environment Court judgments, short-term tourist/visitor rentals of residential housing in the Byron Shire and other areas of NSW are not compliant with Australian Building Codes, Federal Disability Access legislation or the “Standard LEP Template”.

Byron Residents await Council’s meeting tomorrow, where it appears that residential title deed holders will have their proprietary rights retrospectively set aside without financial compensation, and short-term rental operators given unlimited access to residential dwellings and communities. NSW LEC case law precedence would equate this to a Council’s failure to comply with Section 20(2) of the LEC Act, Class 4 - environment planning and protection and development contract civil enforcement: the obligation or duty conferred or imposed by a planning and environment law or development contract, to review or command the exercise of a function conferred or imposed by a planning or environmental law or a development contract, to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, whether or not as provided by section 68 of the Supreme Court Act 1970 – to award damages for a breach of a development contract. We will await the report back from Council’s meeting.

Airbnb has filed its long-awaited IPO with the United States Securities and Exchange Commission. The document can be accessed here. The Company lists ‘Risk Factors’ – pages 27-100. One of the more clear-eyed appraisals we have read is provided by San Francisco’s Business Times. (See attached document for full article.) A summary:

1. Airbnb’s growth was slowing before the virus

2. It has taken action to cut costs

3. Its new businesses have not taken off

4. What is the outlook for hosts?

5. Regulation is looming

The bottom line: Airbnb has never made money and has no clear path to profitability. In fact, it is facing powerful headwinds. Also: “The company said it checks all of its hosts and guests against regulatory, terrorist and sanctions watch lists to increase safety for all parties.” False. Concurrently, Airbnb stated:

“In addition, we have not in the past and may not in the future undertake to independently verify the safety, suitability, location, quality, compliance with Airbnb policies or standards, and legal compliance, such as fire code compliance or the presence of carbon monoxide detectors, of all our hosts’ listings or experiences. We have not in the past and may not in the future undertake to independently verify the location, safety, or suitability of experiences for individual guests, the suitability, qualifications, or credentials of experiences hosts, or the qualifications of individual experiences guests.”

Our NSW Ministers, in particular Minister for Planning Industry and Environment Rob Stokes (Master of Science MSc) from the University of Oxford and honorary life member of the Planning Institute of Australia, along with Kevin Anderson, responsible for Fair Trading, must acknowledge that Airbnb dominates the illegal short-term rental market in Australia and will not, will never, be compliant in terms of any legislation or regulations.

Homes not Hotels Communities not Transit Zones People before Profits

Neighbours not Strangers