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Dear M S
I am not a legal professional so, for what it’s worth, I offer the following:
- Check exactly what the Development Consent on your property says. Ours, for example says that the building is for permanent residential occupation only and not for the purposes of a hotel, motel, tourist accommodation or the like…all units must be owner occupied or occupied by a tenant under a residential tenancy lease. Any other type of occupancy is therefore contrary to the Development Approval and contrary to Law. (There goes all the Insurance over your building – how much is it, owners’ contents worth, and what is the going rate for loss of life and permanent injury?)
- A lease held by say NSW Health which sees ‘visitors’ (their staff) staying for one/two nights, would not, I believe, fall into the category of a lease. Firstly the Local Council would argue that there has to be a sense of permanency attributed to the occupancy and stays of a couple/few nights is not permanent occupancy – these individuals have their homes elsewhere. These are ‘visitor’ stays. NSW Health has the option of placing their staff into hotel accommodation or, if the length of stay falls under an enterprise agreement which says that kitchen facilities must be provided, NSW Health should source ‘serviced apartments’ for their staff members. One suspects this kind of ‘use’ of your residential property is a cheap option for this Government body however, if it is in contravention of the Development Approval, if it is NSW Health, they should be looking into how they are sourcing legal accommodation for their staff. Write to Jilliam Skinner, Health Minister: https://www.nsw.gov.au/ministercontactform/minister-health
- See the NSW Residential Tenancies Act, specifically sections 7 and 8(h) of the RTA. These are not leases. Here you can quote NCAT Orders: RT 15/37925 eNumber: 33769HJ18, and RT37922 eNumber: 33769HB18. For about $100 you can take the Owner (listing NSW Health as the tenant) to the NCAT. Phone the NSW Department of Fair Trading to confirm exactly which form you require. If you submit the wrong form, the application will be rejected after all your work.
- Yes, it is the owner of the apartments, not NSW Health, that holds ultimate responsibility for how the apartments are occupied and whether or not the (probable) non-compliance with any Law renders the building insurance policy void. Should the unspeakable ever happen – that’s why Insurance is compulsory, as it sometime does – how much could you sue/get out of this owner?
- Some Councils have altered their Local Envirionment Plan (LEP) so that they now give short-term letting a ‘free kick’. Those who spring to mind include Gosford, Kiama, Shoalhaven. You need to go back to Council, who holds ultimate responsibility for the Development Approvals they have granted.
- The Council should, if there is a clear breach of the Development Approval, take the matter to the NSW Land and Envirionmet Court (LEC). I understand that the maximum penalty is $1 million plus $11,000 for every night that any subsequent breach of an LEC Order is breached. If they claim they need proof, supply as much proof as you have and then tell the Council that they have the power to subpoena the rental and other records of NSW Health – see the conflict of interest between Local and State Government here?!
- The Land and Environment Court has no trouble finding short-term letting a breach of a Development Approval. You can quote to your Local Council the following case numbers: a) (2011) NSWLEC 1054, b) No. 10576 of 2006, c) NSWLEC 315 or 2005, c) NSWLEC 40515 of 2009, d) NSWLEC 40516 or 2009, e) NSWLEC 235 of 2011, f) NSWLEC 61 of 2013, g) NSWLEC 14/40923.
- What you describe, in terms of the behaviour of short-term tenants, mirrors that of anyone I know who has lived in this sort of environment. The NSW LEC has repeatedly judged that there is a “fundamental incompatibility” when one mixes short-term lets with permanent residential occupation. Plenty of quotes from NSW case law can be provided, should you need them.
- It took more than three and a half years of constant lobbying to get ours into Court, then the Court Ordered the Respondent to pay all Council’s costs so there was effectively no cost to Council/Rate Payers. If your Local Council won’t act, tell them you will go to the NSW Minister for Local Government and the NSW Ombudsman. Oh, expect if you are in a large scheme with lots of people complaining that Council will insist that one person to act as the spokesperson and expect that you will eventually be labeled vexatious and have a Council order issued against you at the end of the day…with Council officially stating that they will not respond to any of your correspondence. My experience: That’s how our democracy works. Freedom of Speech…an individual can be officially silenced under legislation available to any Government body.
There is currently a parliamentary inquiry into the adequacy of legislation covering short-term letting in NSW. Every indication is that the short-term letting industry and its participants are lobbying long and very, very, very hard to have short-term letting permitted in every residential building across the state. Some Local Councils have been seen to be actively talking with some high players in the short-term letting industry to work out how to change Local Environment Plans in NSW to suit the commercialisation of residential properties and short-term letting across NSW.
I recommend that you write to your State Member of Parliament expressing your views on this subject and how it is impacting on your home life.
Good luck!