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Ficitonarchitect, do you have a copy of the Development Consent on your building? In our case it is quite clear that nothing such as this can be attached to windows:
“All external glazing in the development must be clear and untinted.”
Check that first. If you are in luck, ask the Strata Manager to write to the Owner seeking that their tenant complies with the DA on the property, or the matter could be referred to Council.
Lady Penelope is correct: a short-term rental agreement isn’t a Residential Tenancy Agreement under the NSW Residential Tenancies Act (see sections 7 and 8(h) specifically), hence it could/would be argued that there is no necessity to advise details for the purposes of listing these occupancies on the Strata Roll.
Short-Term Rentals are, from night one, a commercial use of a residential property – a breach of Planning legislation. The NSW Land and Environment Court backs this stance, plus finds mixing STRs with Permanent Residents “fundamentally incompatible”, plus a whole LOT more.
Sounding like a broken record…(obviously): this is a Plannng/Zoning issue = it depends on the Determination of Development Application on your building. If it is zoned Residential, these short-term ‘agreements’ aren’t in keeping with the DA and the conditions of occupancy…back to Local Councils we go and to the State Government to mandate that Local Councils enforce our legislation.
Cheers
Hi JohnH
Yes indeed. There’s a building near me (Sydney CBD). I pointed out to one resident an Airbnb listing in their property. The resident gave the link to their building manager. The apartment @ $2,500/night on Airbnb is a scam. Photos came from a sale listing so they have the furniture of the previous owner. Most of the photos are of the interior of an apartment subsequently purchased and now owned by a City of Sydney councillor. The councillor is aware of the listing.
Funny, some of the other photos on the listing are of a different apartment in the same building.
The link has been sent to Airbnb cowboys Brent Thomas and Sam McDonagh here in Sydney. The building is strictly ‘residential only’. They’ve done feck all about it.
The listing is still there.
Scambnb…
Pielover
You try to address this at a Stata level…you’ll have WWIII breaking out. My life has been utter, utter, utter hell for six years and what has kept me fighting is the desire to never ever see anyone else have to go through such a nightmare. Hence, this must remain a Planning/Zoning issue – State Government Legislation with Local Councils responsible for implementation and regulation.
NCAT does NOT deal with this as it is NOT a strata issue – as written before, I have this in writing from the Deputy President of the NCAT…following three failed applications to the Tribunal, one of which was 1,200-pages of documents.
Simply go to sections 7 and 8(h) of the NSW Residential Tenancies Act – first step. That tells you what agreements and what properties are NOT covered by the Act.
Next: go to your local council and simply, under freedom of information, get: 1) a copy of the Determination of Development Application on your strata building, which should spell out what residential lots can/can’t be used for, and 2) also get from Council a copy of Certification of Classification on your building. Look and see what ‘class’ the floor on which you live is – it will be a ‘class 2’, guaranteed. This relates to the Building Codes of Australia/National Construction Code.
Submissions for Responses to the NSW Parliament’s (No)’Options Paper’ must be submitted by 31 October. You can be assured that this matter will be covered in full and as best as humanly possible by those within the Neighbours Not Strangers coalition.
Hope this helps.
The ‘default’ must be the:
“Determination of Development Application”, plus the
Certificate of Classification Class 2 of the local Government (Approvals) Regulations =
PERMANENT RESIDENTIAL OCCUPATION ONLY, and not for the purposes of a hotel, motel, serviced apartment, tourist accommodation or the like…all occupants must be either owner occupiers or occupants under a Residential Tenancy Agreement.
NSW Land and Environment Court case law backs this, plus it has repeatedly and consistently judged mixing short-term rentals with permanent residents:
“Fundamentally Incompatible.”
The issue of STRs has shot across to another threat.
It is clear that this is a Planning/Zoning matter, as confirmed by JimmyT’s contact in Macquarie Street and as per entries under “1st NCAT case for Airbnb by-laws under SSMA2015′.
There is now a Flat Chat questionnaire and one is being given ‘a choice’.
However long ago we were given a choice: we signed contracts to become homeowners of residential (strata) apartments. Nearly all of us, concurrently, signed with a financial institution, committing ourselves to a residential/homeowner mortgage. That’s when were exercised our ‘choice’ and locked ourselves in.
It is interesting too that in newspaper articles comments are sought from Strata Lawyer/spokesperson for the Owners Corporation Network (OCN). He wants to see Parliament now give those in strata ‘a choice’ of whether their building should continue to function as a residential strata scheme, i.e. housing, or retrospectively now operate as an unlicensed, unregulated hotel.
The OCN’s recommendation to Parliament about ‘choice’ and ‘by laws’ makes no mention of the need and considerable/prohibitive cost to upgrade building infrastructure for commercial use. Nor is there any reference to the Land and Environment Court’s repeated judgements that mixing STRs with permanent residents is “fundamentally incompatible”. Tellingly, the OCN’s recommendation to Parliament is not that which was arrived at and sent to their Board by their Sub-Committee on short-term rentals.
The goal set for the OCN’s Sub-Committee was to present a policy “to support the on-going improvement in communal living by confronting the inherent problems of short-lets of residential property. The goal: ‘to maintain the distinction between residential use and that of holiday/tourist/visitor accommodation.” The six-page document concludes with:
“Actions Required: OCN should press the following initiatives by the State Government: 1) The State Government in the parliamentary reform process must investigate how councils could be mandated to enforce residential planning, zoning or approval to prevent unauthorised short-term commercial letting of residential properties, and 2) The State Government must ensure that Development Consents are clear, comprehensive and precise as to the manner in which short term letting is dealt with; Development Consents for residential use should also state that no person can advertise or organise the use of the property for short term accommodation.”
The Chair of the OCN’s Sub-Committee on short-term letting is also on the record stating:
“(name) is clearly concerned about “where power rests” in a strata scheme despite changes to the Act that limit the number of proxies. She is right to be concerned.
Even under the new Act many tried and tested ways of getting and keeping control of a Strata Committee remain live and well in the world of apathetic owners. I expect we will also see power exercised in new ways as we move to Pre-Meeting Voting. Indeed it would be naive to think that some owners will not be influenced in the way they submit their electronic votes.
All this is important in how we find a solution to the Short Term Letting “STL”/Airbnb challenge.
To call for “Owners to Decide” whether a building allows STL is not a solution. It poses real risks for any owner who has bought an apartment as their “home” in the reasonable expectation that the Residential Development Consent meant that they could expect to live in a community of Residents. Why?
So how would “Let the owners decide” play out?
It is quite conceivable that commercial interests could secure sufficient power to support an application for a change of building status to short term accommodation.
That may not only mean a change of surroundings for any remaining “resident owners”, but they could also be faced with being levied for their pro rata share of the costs of any fire upgrades and compliance works required for the building’s new purpose. Is this fair and equitable?
The new Act has made it very clear that individual owners facing redevelopment of their homes and termination of their schemes needed special safeguards. Individual owners in buildings heading down the Short Term Letting path deserve equal protection.”
As JimmyT is aware, the short-term letting of apartments in the building in which I live made life a ‘living hell’. Former members of our Strata Committee have spoken to him directly and told him of the seriousness and frequency of threats issued against those who have sought to uphold the Residential Determination of Development Application on the building. These serious threats – to date, 34 ‘legal’ (plus 3 phone calls from an unknown caller, asking one individual whether or not they hold ‘funeral insurance’) – have come from others who hold enormous legal and legislative power plus far greater financial resources than the recipients of those threats.
It is incumbent on our legislators to uphold the rights of those seeking safe, secure, affordable housing and to safeguard our Planning and other levels of legislation covering issues such as Building and Construction Codes, Fire & Rescue, Disability Access…to name but a few. From the looks of it, Parliament hasn’t even considered the many other Acts/legislation covering all forms of lodging.
Legislation-wise, reckon we better stick with what we have – it’s excellent – rather than poke the hornets’ nest.
The alternative – to make individuals within a strata scheme (and those who live in residential suburbs) responsible for the actions and behaviour of (often absent) neighbours and off-shore booking platforms – is unrealistic and unfair in the extreme, plus places individuals, at times, in very dangerous and threatening territory, exposing all to financial ruin in the event that an insurer refuses to pay against a major claim.
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.
In a word: Yes.The Ombudsman is empowered to investigate councils who fail to enforce legislation within six weeks of being notified of an issue..One can telephone the Ombudsman to find out how to make a complaint against council for not enforcing the DA on a property. Admitting that there is a classic example where this action could have but hasn’t as yet been taken:Two years ago the City of Sydney took a whoppa of a short-term letting operator to the Land and Environment Court. (The offender was the same protagonist behind the LEC’s 187 Kent Street judgments so knew he didn’t have a twig to stand on in the Bridge Street building matter. He offered no opposition in Court when the case was put and simply accepted the Orders plus a $10,000 fine paid to Council (not a cent went to the OC, of course), having turned over absolute millions in the “illegal use of premises” over the proceeding 18 years.The Orders were against said individual/his company. Short-term rentals disappeared. Peace, for the first time in almost two decades.Some months later, the building started seeing people coming and going again with suitcases, plus cleaning teams regularly race in and out, servicing apartments.All details have been sent to the City of Sydney who now write:“It is noted that you allege that the units detailed….are being used to provide short term residential/tourist style accommodation (a potential breach of the extant development consent). The use of these units for short term residential/tourist style accommodation has been considered in terms of its impact on the amenity of the building and the safety of its occupants to determine if it is within the public interest for Council to proceed with formal enforcement action against those facilitating the use of the units.In this case, Council has elected to not enter into enforcement ction given that there is no significant detrimental effect on the environment and it does not constitute a risk to public health and safety.It is recommended that you raise (or reiterate) your concerns with the Strata Committee who can investigate and take action accordingly.”Said Strata Committee are the old short-term letting cohort and fans, including one big, former State MP. One of the Committee Members has a cleaning crew coming and going…serviced apartment. The Committee won’t lift a finger and have ‘resolved’ that any owner who has issue with STRs should refer the matter to Council. They also fail to list requests for Motions on Agendas…just can’t go on – there’s too much.What should happen is the owner who has so far invested six full years in trying to correct the situation in the building should take the matter to the Ombudsman, as literally volunteered as an option to them by the CEO of the City of Sydney Council. Seems this is all a game to staff at Council.As said previously, this would make an excellent ABC script, similar to that of Utopia. It could perhaps be entitled something along the lines of ‘Death by Exhaustion‘?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.
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].
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?
Hi rthorburn
For the last six+ years I’ve done everything humanly possible to ‘right’ the situation within our Sydney strata scheme. I recently said, again, to the Head of Mediation, NSW Fair Trading that either I have failed spectacularly or the system has failed me. He said to me, again: “The system has failed you.”
They are our homes, our money, our lives; under no circumstances should it be like this.
Thank goodness for our academics at Sydney University and UNSW.
It’s strange that the NSW Tenants’ Union Report is in such disaccord with research and work done by Tenant Union/Bodies across North America, Europe and elsewhere. The Unions’ representatives here in NSW have simply been asked if any of them use/profit from such short-term rentals, given that they are on the public record of saying it’s OK to sublet to Airbnb occupiers. They haven’t responded.
There are interesting figures today – found here.
Seems Airbnb-type occupations are in breach of Federal, State, Local, all the way down to Strata legislation.
What protection for those who’ve undertaken all due diligence and hold Title Deeds on properties where Short-Term Rentals are specifically excluded and when the NSW Land and Environment Court repeatedly judges mixing them with permanent residents “fundamentally incompatible”.
Where will one be able to live if this sort of behaviour/letting/occupation is deemed ‘acceptable’; will they carve out new zones which are ‘Airbnb-free’? And goodness knows what such zones will be called if they’re not ‘Residential’.
And do we throw out regulations and all oversight on every level/type of housing/accommodation/shelter/shack? If it’s ‘complying development’, can we set up bunk beds all the way through our sub-ground garage levels and run a cheapie, stalag-kinda system down there? Then there are the Building Codes/National Construction Codes, Disability Access/Discrimination legislation etc – like all those discussed on last night’s 4 Corners, Coronial Inquests…
Too late. Could never, ever, ever have imagined…
It’s worth an ABC Series along the lines of Utopia!
The latest from the City of Sydney, in connection with residential lots in a building where they previously obtained LEC Oders banning short-term rentals. This email received four days ago:
“The matters raised in your emails to Council (Dated May and June 2017) and the supporting internet links and supporting documentation have been examined.
It is noted that you allege that the units detailed in the email are being used to provide short term residential/tourist style accommodation (A potential breach of the extant development consent).
The use of these units for short term residential/tourist style accommodation has been considered in terms of its impact on the manit of the building and the safety of its occupants to determine if it is within the public interest for Council to proceed with formal enforcement action against those facilitating the use of the units.
In this case, Council has elected not to enter into enforcement action given that there is no significant detrimental effect on te environment and it does not constitute a risk to public health and safety.
It is recommended that you raise (or reiterate) your concerns with the Strata Committee who can investigate and take action accordingly…”
Yet it seems that the strata committee can’t take action and, certainly in our case, won’t take action as those who control our residential building are long, long term advocates of short term rentals.
Perhaps the NSW Government should consider what type of living environment those in strata must cope with – now, and in the future.