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Table of Contents
Introduction ....................................................................................................................... 6 What is short term holiday accommodation? ................................................................ 7 What is a dwelling house? ............................................................................................... 7 What is ‘tourist and visitor accommodation’? ............................................................... 7 Serviced Apartments ........................................................................................................ 7 Secondary Dwellings........................................................................................................ 8 This Strategy will .............................................................................................................. 8 Key Strategy messages ................................................................................................... 8 Existing Situation ............................................................................................................. 8 Case Studies ...................................................................................................................... 9 Case Study 1: South Golden Beach .............................................................................................. 9 Case Study Findings: ..................................................................................................................... 9 Time to Act - Legal precedence..................................................................................... 10 Past Council proposals to regulate holiday homes .................................................... 11 Holiday Rental Code of Conduct ................................................................................... 12 Other Council controls ................................................................................................... 12 Key stakeholder consultation........................................................................................ 12 Summary of Discussion Paper Workshops outcomes ...................................................... 13 Three levels of assessment ........................................................................................... 13 Exempt Development ....................................................................................................... 14 What is exempt short term holiday accommodation (STHA)? ..................................................... 14 Why have exempt controls? ......................................................................................................... 14 What is exempt development? ..................................................................................................... 14 Draft exempt planning controls .................................................................................................... 15 Complying Development................................................................................................... 18 What is complying short term holiday accommodation (STHA)?................................................. 18 Why have complying development controls for STHA?............................................................... 18 What is complying development? ................................................................................................ 18 Draft complying planning controls ................................................................................................ 18 Development Assessment ................................................................................................ 22 Previous development assessment options considered in the Discussion Paper ....................... 22 What is ‘Open’ development consent for STHA? ........................................................................ 22 Draft ‘open’ planning controls ...................................................................................................... 23 Draft Development Control Plan Provisions ................................................................ 23 Conditions of consent which may be imposed ........................................................... 25 Amend Byron DCP 2014 Chapter B4 Traffic Planning, Vehicle parking, circulation
and Access ...................................................................................................................... 27 Compliance ..................................................................................................................... 27 Changes to existing planning controls for other forms of Tourist and Visitor
Accommodation.............................................................................................................. 28 Bed and Breakfast Accommodation ................................................................................. 28 Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
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Serviced Apartments ........................................................................................................ 29 Rural Tourist Accommodation .......................................................................................... 31 Section 94 Contributions................................................................................................... 31 Registration ..................................................................................................................... 32 Rates ................................................................................................................................ 33 Action Plan ...................................................................................................................... 33 Dictionary ........................................................................................................................ 36 Appendices ..................................................................................................................... 37 Appendix A – Holiday Letting Strategy Discussion Paper ................................................ 37 Appendix B - Outcomes of 2014 Discussion paper workshop .......................................... 38 Appendix C – Clause 3.1 Exempt Development............................................................... 39 Appendix D – Clause 3.2 Complying Development .......................................................... 40 Appendix E – Clause 3.3 Environmentally Sensitive Areas excluded .............................. 41 Appendix F - Dobrohotoff v Bennic ................................................................................... 42 Appendix G - Real Estate Institute of NSW Holiday Rental Code of Conduct .................. 44 Appendix H – Example Information Sheet ........................................................................ 45 Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
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Introduction
Holiday letting of dwelling houses is not a new phenomenon in Byron Shire and is
prevalent in many coastal towns around Australia. Its growth as a form of tourist
accommodation has grown significantly in the past two decades and more so in Byron
Shire with its proximity to domestic and international airports, good road access to
Brisbane and the greater South East Queensland, subtropical climate, great beaches, laid
back lifestyle, and other amenities and facilities that tourists demand. Further contributors
to its growth is the ease in which the internet has enabled such accommodation to be
booked from the comfort of your own home on home computers, mobile phones and other
electronic devices and cheap airfares has meant holiday makers can jet away for a
weekend break at a moments notice.
With the growth in this type of tourist and visitor accommodation, issues have arisen
between some holiday makers and permanent residents. Conflict has occurred when the
amenity of a residential neighbourhood is not respected by holiday makers who party loud
and long into the early morning hours. Issues have also arisen when houses are let with
little or no management controls in place such as a code of conduct and a contact person
that neighbours can call in the event of anti-social behaviour occurring. The need to
establish planning controls and guidelines is apparent. One of the objects under Section 5
of the Environmental Planning and Assessment Act 1979 states that Council has a role in
the promotion and co-ordination of the orderly and economic use and development of
land. It is considered that this Strategy in terms of holiday letting is consistent with that
object and it would be an abrogation of Councils duty to not get involved. During 2013 a
number of workshops were held with various stakeholders who had an interest in holiday
letting from which Council resolved (Res 13-530):
1.
That Council prepare a Holiday Letting Strategy with the following purposes in
mind:
(i)
examining issues raised in workshops during 2013;
(ii) examining Zoning/precinct options;
(iii) facilitating the preparation of a future LEP amendment;
(iv) supporting the amendment and hence justifying it to the DOPI; and
(v) pursuing legislative changes to facilitate strategy options.
2.
That staff pursue planning and legislative discussions with the Dept of
Planning.
The Draft Strategy consolidates information and refines options gathered during
workshops with key stakeholders in 2013 and 2014. It outlines draft planning controls to
regulate short term holiday accommodation in Byron Shire and provides details on the
registration system, fees and charges (rates and registration fees) and compliance action.
In developing the Strategy it became apparent that existing Council controls for other
types of tourist and visitor accommodation such as Bed and Breakfast, Serviced
Apartments and Rural Tourist Accommodation were inequitable. Therefore, this Strategy
also proposes amendments to existing planning controls for other forms of tourist and
visitor accommodation to improve equity.
Other Councils have used the words “short term tourist and visitor accommodation”,
“short term rental accommodation”, “holiday accommodation” or “holiday homes” to
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describe holiday letting of dwellings. This Strategy has been named the Short Term
Holiday Accommodation Strategy.
What is short term holiday accommodation?
A dwelling house that is rented to tourists and visitors on a short term basis.
Short term is defined as less than 90 days.
The draft planning controls define short term holiday accommodation as:
tourist and visitor accommodation in a dwelling house that provides short term
accommodation on a commercial basis, but excludes backpackers accommodation,
bed and breakfast accommodation, farm stay accommodation, hotel or motel
accommodation, and serviced apartments.
What is a dwelling house?
Under Byron LEP 2014, a ‘dwelling means a room or suite of rooms occupied or used or
so constructed or adapted as to be capable of being occupied or used as a separate
domicile’ A dwelling house means a building containing only one dwelling.
What is ‘tourist and visitor accommodation’?
Under Byron LEP 2014, tourist and visitor accommodation means a building or place that
provides temporary or short-term accommodation on a commercial basis, and including
any of the following:
(a) Backpackers’ accommodation
(b) Bed and breakfast accommodation
(c) Farm stay accommodation
(d) Hotel or motel accommodation
(e) Serviced apartments”
Serviced Apartments
It is not intended to draft new LEP controls that relate to the use of medium density
development such as residential flat buildings, dual occupancies or other forms of multi
dwelling development, for the purpose of short term holiday accommodation. Such uses
are already covered by the definition “serviced apartments” under the Byron LEP 2014
and means “a building (or part of a building) providing self-contained accommodation to
tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the
owner or manager of the building or part of the building or the owners or managers
agent”.
Serviced apartments are a permissible form of development with consent in a number of
zones including R3 Medium Density Residential, B2 Local centre and SP3 Tourist Zone.
The use could apply to a dwelling(s) in a residential flat building, multi dwelling housing,
dual occupancies or to shop top housing. Development consent can already be sought to
convert such dwellings into serviced apartments under Byron LEP 2014. However there
are no specific prescriptive DCP provisions (such as management measures) to guide
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new applicants should they wish to lodge a development application to obtain an
approval, and the land use is not permitted in the B4 Mixed use zone. This is discussed
further within the Strategy.
Secondary Dwellings
It is not intended that the Strategy will apply to secondary dwellings as these have been
approved as a form of affordable housing under State Environmental Planning Policy
(Affordable Rental Housing) 2009. Further, such developments have benefitted from a
relaxation of planning controls and contributions which are not available to other forms of
residential or tourist and visitor accommodation.
This Strategy will
1. Address community concerns and aspirations.
2. Improve certainty for holiday home owners/managers, guests, neighbours and
community.
3. Improve equity between holiday homes and other uses of a residential dwelling
such as bed and breakfast and rentals under the Residential Tenancies Act 2010.
4. Will reduce the neighbourhood impacts of short term holiday accommodation.
5. Will ensure that there is a regulatory framework in place so that Council can
effectively respond to holiday home complaints.
6. Allow a period of time for compliance.
Key Strategy messages
1. The community’s feedback is valued and will help guide the development of the
new Short Term Holiday Accommodation Strategy.
2. Regulating holiday homes may mean that owners/managers may have to pay
development costs and or business rates. It will mean that some forms of holiday
homes will require a development application; some may be complying
development; and some may be exempt development.
3. Regulating holiday homes will provide certainty for owners/managers, guests,
neighbours and community.
4. Holiday homes are an important component of Byron’s tourist accommodation
market and thus its economy.
Existing Situation
Upward of 900 dwellings are used for holiday letting in the Shire. These dwellings are
primarily found amongst long term residential housing areas and are positioned close to
amenities, beach, town centres and key tourism attractions. Whilst many visitors come to
Byron to enjoy its relaxed vibrant lifestyle and environmental beauty, there are some who
come to party and some, who when on holiday behave out of the ordinary.
Whilst short term holiday accommodation is an important provider of tourist
accommodation in the Shire, providing around 30% of all tourist accommodation, the
impact that some occupiers of holiday homes are having on adjoining long term residents
conflicts with the peace and enjoyment expected in a residential community and needs to
be better addressed.
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Case Studies
In June 2014, Council staff investigated complaints in relation to the use of two properties
at South Golden Beach and Suffolk Park for short-term holiday accommodation in a
manner that has caused substantial negative impacts on neighbourhood amenity in a
residential zone. These case studies are provided as how unregulated and poorly
managed holiday homes can have a detrimental impact on residential amenity.
Case Study 1: South Golden Beach
It was alleged that over a weekend the property was used by about twenty males for a
buck’s party. Strippers were in attendance and there was significant alcohol
consumption.
The noise started at around 4pm on Friday afternoon and went until around 3am. On
the Saturday it started at the same time but was far louder. It went until about 9pm
then recommenced at 2am. There was lots of swearing and yelling.
One female neighbour went outside at around 1am on the Saturday morning to ask
the occupants to keep it down and was met with the response " hey love I'm naked
over here why don't you come over ".
Permanent residents of the street were subject to 9 motor vehicles associated with the
occupants of the dwelling coming and going at all hours of the weekend. Vehicles
were parked at different times in a manner that obstructed the normal flow of local
traffic.
The Police were called to the premises due to noise and disturbance.
Residents described the situation as a party house.
Case Study 2: Suffolk Park
It was alleged that over a weekend the subject premises were used by about twenty
males for a party that went for the duration of the weekend. There was significant
alcohol consumption. There was offensive language, shouting, beer sculling and
chanting.
One female neighbour who had been out walking during the course of the afternoon
was returning to her home when she was subjected to pornography being shown on the
large screen TV adjacent to an unobscured window on the upper level of the property.
The Police were called to the premises on two occasions due to noise and disturbance.
Case Study Findings:
Council’s investigation into both properties concluded that the use of the subject premises
and the resulting impacts on neighbourhood amenity were sufficiently significant so as to
warrant enforcement action. Council issued the land owners with a $750 penalty
infringement notice for development without consent (Environmental Planning and
Assessment Act).
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The erosion of residential amenity, resulting from unacceptable noise levels and antisocial
behaviour, can lead to a loss of sense of community, which could in turn affect the reason
why some tourists and visitors chose to rent a holiday home in the first place. Further, it is
the responsibility of the land owner to ensure that their guests are acting in a manner that
respects the amenity of the neighbourhood, and they or their representative/property
manager should be the first point of call in the event that issues such as antisocial
behaviour and unacceptable noise levels occur.
Regulating short term holiday accommodation will also assist with influencing housing
cost and fulltime rental supply (under the Residential Tenancies Act 2010). Anecdotally,
holiday letting of dwelling houses may be having an impact on the cost of housing in
Byron Shire, with investors valuing property and making decisions based on the potential
returns from holiday letting as opposed to the rental yields from a residential tenant. Such
investors may be willing to pay a much higher price for those dwelling houses and or carry
out substantial renovations to those properties which then has an impact on housing
affordability.
Tourism also has an impact on public infrastructure, including car parking, public
amenities, foreshore reserves and parks. The costs associated with providing and
maintaining this infrastructure is met by Council through the collection of rates, grants and
Developer Contributions. Motels and other forms of approved tourist accommodation,
including some bed and breakfast establishments are rated as a business. There is a
case that the permanent use of a dwelling house for short term holiday accommodation
on a commercial basis should also be rated in a similar manner.
Festivals may in part have taken some of the demand out of the short term holiday
accommodation market with the two main festival sites North Byron Parklands at Yelgun
and the Bluesfest site at Tyagarah having and promoting large onsite camping areas as
part of the festival experience. Belongil Fields in Byron Bay which had limited area for
camping is not being utilised for large festivals and the impacts from the larger festivals
held at Yelgun and Tyagarah, may not be creating the same demand for holiday
accommodation as previously. Potentially though areas such as Brunswick Heads, Ocean
Shores and Mullumbimby due to their proximity to these festival sites may lead to
increase demand for holiday letting in the north of the Shire in the future.
Time to Act - Legal precedence
A recent NSW Land and Environment Court case (Dobrohotoff vs Bennic, 2013 – ‘Terrigal
Case’), found the use of a dwelling house for short term holiday accommodation was
prohibited as the use of the property for was not sufficiently permanent to comprise a
‘dwelling house’ in Gosford City Council’s residential zone.
The Court found Gosford Councils refusal to act on the neighbours complaints was an
‘abrogation of council’s fundamental duties and responsibilities’. The Court also found that
council had a duty to amend the ambiguous terms and remedy any deficiencies in their
planning instruments.
This court case created precedence and an implied requirement for Council to review
their planning controls. Additionally, Byron Council received a letter from the Planning
Minister’s advising that regulating holiday homes is a ‘local issue and as such it is up to
local Councils to manage holiday letting……councils may choose to address amenity
issues relating to holiday letting in their local plans’
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Further information on the Dobrohotoff vs Bennic, 2013 – ‘Terrigal Case’ can be found on
the web and a summary from the Land and Environment Court is provided in Appendix F.
It is Time to Act!
Past Council proposals to regulate holiday homes
Concern about the impact that unregulated holiday letting is having on residential amenity
has been a long standing issue in Byron Shire.
In 2005, Council convened a Holiday Letting Forum in Byron Bay to engage the tourist
accommodation industry and resident groups in examining possible solutions to various
issues relating to holiday letting. Participants at the Forum proposed a number of options
relating to holiday letting. Council considered these options at two meetings in 2006, one
as part of the Draft Local Environmental Plan (LEP) for the Byron Bay Area. These
options did not proceed as the draft LEP was abandoned in October 2006 as Council
resolved to prepare a LEP for the whole of the Shire as required by the State
Government.
On 31 October 2008, Council resolved to publicly exhibit an urban holiday letting precinct
model for Byron Bay and Brunswick Heads and that the draft Shire-wide LEP be
amended to include provisions for holiday letting.
The precinct model was publicly exhibited in February to March 2009 and over 1000
submissions were received. These submissions were summarised and reported to
Council on 2 July 2009. Council resolved to reconfirm its draft LEP holiday letting precinct
position.
Amendments were made to the draft LEP to allow holiday letting of residential properties
in certain mapped areas as complying development. The Department of Planning’s advice
at the time was:
‘that it is not appropriate [for Council] to control holiday tenancies through the
planning system [and that] Council is encouraged to continue the current model of
self regulation/management through the letting agents and landowners as a means
of minimising any impacts’
Also in 2008, Council investigated the option of regulating holiday letting by means other
than a development application and in particular utilising the Local Government Act 1993
to license and register under Section 68. Unfortunately there is no mechanism under
Section 68 for this and there was little support from the State Government to amend the
Local Government Act to provide that licensing regime for Council.
Subsequent advice from the Department received in February 2010 stated:
‘The Department is reviewing the legal and policy context relating to holiday letting
on a State-wide basis as the issue should be considered in the context of all
councils across NSW. We hope to have options available for Councils’ review in the
coming months’.
The Department has changed their opinion in their most recent advice received in July
2012 which states:
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‘I consider the issue of holiday letting to be a local issue and as such it is up to local
Councils to manage holiday letting. In local government areas with a high incidence
of holiday letting councils may choose to address amenity issues relating to holiday
letting in their local plans’
To date, no specific guidelines or directions have been provided by the Department to
instruct Councils’ on the holiday let issue.
Holiday Rental Code of Conduct
The Holiday Rental Code of Conduct (Appendix G) produced by the Real Estate Institute
of NSW and acknowledged by the Department of Planning and Environment is a well
considered framework providing a self-regulatory approach for owners, managers, guests
and visitors of holiday homes. Unfortunately not all holiday homes abide by the code of
conduct, and there is no legal mechanism at present to force land owners to manager
their properties in accordance with the Code.
Other Council controls
Some Councils’ have introduced controls to regulate short term holiday accommodation,
including Gosford, Kiama, Eurobodalla, Wingecarribee, and Shoalhaven.
Kiama, Eurobodalla, Wingecarribee and Shoalhaven Councils planning controls permit
short term holiday letting of residential accommodation without development consent.
Gosford has established a mechanism where dwellings containing no more than four
bedrooms could be considered as exempt development and used for short term rental
accommodation. Dwellings comprising 5 or 6 bedrooms are required to obtain
development consent prior to use for this purpose.
Key stakeholder consultation
The following meetings/workshops with key stakeholder groups commenced in 2013
initiated by Council:

20/6/2013 Holiday Let Meeting with external Stakeholders, department of
planning Staff, Councillors and senior Council staff

6/8/2013 Holiday Let Meeting with Community

7/11/2013 Holiday Let Forum with Holiday Let Organisation, Real Estate and
Property Managers, Victims of Holiday Letting, other interested parties,
Councillors and senior staff.
Staff prepared a Discussion Paper (Appendix A) on the holiday letting strategy in May of
2014 and two workshops were held on the 27 May 2014 and 24 June 2014 to further the
strategy and to gather information on precinct and zoning options, to hear from operators
and property managers of holiday let properties and from those residents and community
groups on issues relating to noise, amenity, anti social behaviour, and management
issues. The outcomes from the two Discussion Paper Workshops have directly resulted in
refinements to the draft planning controls presented in the Discussion Paper. The
outcomes of the workshops are provided in Appendix B and are summarised below.
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Summary of Discussion Paper Workshops outcomes

all agree exempt development should be open to all zones

remove time limiting restrictions for exempt development

amenity issues must be managed

complaints investigated

most agree that it is not the size of the house/number of bedrooms but the
number of people that should be controlled

all agree that number of people should be capped, with varying views on what
this would be eg. 6-8, 8 or 12

all agree to register of short term holiday accommodation properties

12 month trial on each owner

equity issues with other forms of tourist accommodation

license/accreditation/fees required

all agree that neither option (zoning or precinct) is acceptable in current form as
not fair and equitable to all property owners; too restrictive; should be permitted
in rural zone; should be allowed across the Shire

most agree with allowing in rural and village zones
Councillors participated in a workshop on 24 July 2014 to consider the outcomes of the
Discussion Paper workshops and revised the draft planning controls.
It is anticipated that going forward there will be further consultation with Councillors and
the Community when the strategy is placed on exhibition and potentially further
refinement or amendment to the draft Planning Controls.
Three levels of assessment
Three levels of assessment are proposed to regulate short term holiday accommodation.
1. Exempt: holiday homes are only available for rent in Australian School Holiday
periods, for a total of less than 90 days in any calendar year.
2. Complying: maximum of 3 bedrooms, and are rented for less than 90 days at a
time in any calendar year
3. Development Application: 4 or more bedrooms, or for dwelling houses that cant
satisfy the complying provisions and are rented for less than 90 days at a time in
any calendar year
To comply, holiday homes must meet all of the additional provisions stated under the
relevant clauses. These controls will apply to all owners/managers renting a property for
short term holiday accommodation.
The following draft planning controls were informed by workshops held with key
stakeholders in 2013 and refined post the discussion paper workshops in 2014.
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Furtherrefinementandamendmenttothesecontrols
mayoccurfollowingexhibitionoftheStrategyand
consultationwiththecommunityorinthepreparation
oftheplanningcontrolsandtheirsubsequentexhibition
andconsultationpriortoadoption.
Exempt Development
What is exempt short term holiday accommodation (STHA)?
Exempt STHA is aimed at regulating ancillary use of a dwelling house. That is, it’s
predominately used as a residential dwelling and can be rented as a holiday home for less
than 90 days in any one calendar year. Most dwelling houses in the Shire could be
exempt if they can comply with the draft planning provisions below and the standard
exempt provisions as described in Part 3 and Schedule 2 of Byron LEP 2014.
Why have exempt controls?
Exempt development provisions for ancillary use of a dwelling house for short term
holiday accommodation will provide clarity to the community and land owners alike of their
rights and responsibilities. The exempt controls will facilitate the intermittent use of
dwelling houses for STHA during school holiday periods and provide controls for the
management of tenants, when they can be used as such and registration requirements
with Council.
What is exempt development?
Exempt development is detailed in Byron LEP 2014, Part 3 and Schedule 2, however not
everyone can do exempt development. Clauses 3.1 and 3.3 of the Byron LEP 2014 lists
where exempt development cannot be carried out. That is, where there is critical habitat
of an endangered species, populations or communities, wilderness areas, and
environmentally sensitive areas. Environmentally sensitive areas are defined as:
(a) the coastal waters of the State,
(b)
a coastal lake,
(c)
land to which State Environmental Planning Policy No 14—Coastal
Wetlands or State Environmental Planning Policy No 26—Littoral
Rainforests applies,
(d)
land reserved as an aquatic reserve under the Fisheries Management Act
1994 or as a marine park under the Marine Parks Act 1997,
(e)
land within a wetland of international significance declared under the
Ramsar Convention on Wetlands or within a World heritage area declared
under the World Heritage Convention,
(f)
land within 100 metres of land to which paragraph (c), (d) or (e) applies,
(g)
land identified in this or any other environmental planning instrument as
being of high Aboriginal cultural significance or high biodiversity significance,
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(h)
land reserved under the National Parks and Wildlife Act 1974 or land
acquired under Part 11 of that Act,
(i)
land reserved or dedicated under the Crown Lands Act 1989 for the
preservation of flora, fauna, geological formations or for other environmental
protection purposes,
(j)
land identified as being critical habitat under the Threatened Species
Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994.
Additionally, exempt development cannot be carried out on land that comprises or on
which there is an item that is listed on the State Heritage Register under the Heritage Act
1977 or is subject to an interim heritage order under the same act. For further details on
Exempt Development see Appendix C and E for clauses 3.1 and 3.3.
Draft exempt planning controls
As a result of the Discussion Paper Workshops, Council has revised the draft exempt
planning controls. In Table 1 the first column shows what was initially proposed and the
second column shows the final draft that Council is now considering. Council has taken
on board suggestions relating to restricting the number of adult guests to limit the
potential for “party houses” to arise, however, it is also acknowledged that there needs to
be some ability for families with Children to rent holiday homes.
To take effect an amendment to the Byron LEP 2014 Schedule 2 is required.
Table 1: Exempt Planning Controls
Initial Exempt controls proposed in
Discussion Paper
Revised Exempt controls post
Discussion paper workshops
FINAL DRAFT
(1) In this clause short term holiday
accommodation is tourist and visitor
accommodation in a dwelling that
provides short term accommodation on
a commercial basis, but excludes
backpackers accommodation, bed and
breakfast accommodation, farm stay
accommodation, hotel or motel
accommodation, and serviced
apartments.
(1) The subject dwelling must be located in
a zone where dwellings are permitted
with consent,
(2) The subject dwelling house must be
located in a zone where dwelling
houses are permitted under Byron
LEP 2014,
(2) Only during December and January and
for no more than 60 days in any one
year,
(3) Only during Australian public school
holiday periods and for less than 90
days in any one calendar year,
(3) The dwelling must not contain more
than 5 bedrooms
(4) To facilitate family holidays:
I. The maximum number of occupants
is 10
II. The number of occupants 16 years
or over is restricted to 2 per
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Initial Exempt controls proposed in
Discussion Paper
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Revised Exempt controls post
Discussion paper workshops
FINAL DRAFT
bedroom up to a maximum of 8
occupants for 4 or more bedrooms
(4) Garbage and recycling bins to be
provided and serviced on a regular
basis,
(5) Garbage and recycling bins to be
provided, serviced and managed on a
regular basis,
(5) If the dwelling is located in a bush fire
prone area, a bush fire evacuation plan
must be attached to the dwelling in a
prominent location,
No change
(6) Must comply with Building Code of
Australia,
Delete
(6) If the dwelling is located in a bush fire
prone area, a bush fire evacuation
plan must be attached to the dwelling
in a prominent location,
This is already addressed in Byron LEP
2014 Part 3, Cl 3.1 (3) – Exempt
Development.
(7) The dwelling house must have hard
wired smoke alarms, evacuation
lighting, fire blanket and extinguisher
in kitchen.
(7) Carparking to comply with Part B4
Byron Shire DCP 2014,
No change
(8) Carparking to comply with Part B4
Byron Shire DCP 2014
Provisions would need to be included in
DCP Chapter B4 Table B.41 as follows:
No. of bedrooms
Parking
1-2
1 space
3-4
2 spaces
>5
3 spaces
Stacked parking, one vehicle behind the other,
can be used to achieve the parking
requirements.
(8) There must not have been 2
substantiated complaints to the Council
concerning the holiday letting activities
taking place on the property from the
occupiers of separate dwellings located
within the proximity of the subject
dwelling within the preceding 12
months, and
No change
(9) There must be no more than 2
substantiated complaints to the
Council concerning the holiday letting
activities taking place on the property
from the occupiers of separate
dwellings located within the proximity
of the subject dwelling within the
preceding 12 months
No change
(9) Only where use does not interfere with
the amenity of the neighbourhood to the
(10) Only where use does not interfere with
extent that Council could issue a Notice,
the amenity of the neighbourhood to
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Initial Exempt controls proposed in
Discussion Paper
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Revised Exempt controls post
Discussion paper workshops
FINAL DRAFT
Order or Direction.
the extent that Council could issue a
Notice, Order or Direction.
(11) The owner/manager must register the
use of the dwelling house for short
term holiday accommodation on
Council’s register prior to the initial
period used and then updated for each
subsequent period used.
(12) The use of the dwelling house for short
term holiday accommodation must
abide by the REINSW Holiday Rental
Code of Conduct
(13) The land owner or appointed property
manager (eg Real Estate Agent) must
be contactable 24 hours 7 days a
week and to be able to respond within
30minutes in person to complaints
regarding the action of tenants and in
particular issues pertaining to noise
and residential amenity.
(14) A sign with an area of 0.5 m2 to be
placed on the front gate, letterbox or
some other location which can clearly
be seen from the public domain (eg
footpath) advising the public of the
land owners or property managers
details including telephone number to
enable complaints to be readily made
and wording to advise that the
property is ‘Registered with Byron
Shire Council’.
(15) The land owner or appointed property
manager must maintain a logbook to
record the number of quests and their
dates of stay.
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Substantiatingacomplaint
AshasbeensaidbytheHighCourt‘itwouldbewrongtoindicatethatguiltorinnocence
turneduponamerechoicebetweentwoinconsistentversions’.
Substantiatingacomplaintwillnotboildowntosimplydeterminingwhoistobebelieved.
AnadversefindingwillnotbemadeunlessCouncilissatisfiedofthetruthoftheevidence.
Theseriousnessofanallegationmade,theinherentunlikelihoodofanoccurrenceofagiven
description,orthegravityoftheconsequencesflowingfromaparticularfinding,are
considerationswhichmustaffecttheanswertothequestionwhetherthecomplaintis
substantiated.
Substantiatingacomplaintwillnotbebyrelianceon'inexactproofs,indefinitetestimony,or
indirectreferences.'(HighCourt)
Complying Development
What is complying short term holiday accommodation (STHA)?
Complying development allows for dwelling houses with up to 3 bedrooms to be
rented as a holiday home for less than 90 days at a time throughout the calendar
year.
Why have complying development controls for STHA?
The complying controls aim to provide a quicker and cheaper means of approval for
the majority of STHA in the Shire if they meet the complying provisions.
Approximately 67% of all dwellings in the Shire are 3 bedroom homes or less (ABS
2011).
What is complying development?
Complying development is detailed in Byron LEP 2014, Part 3 and Schedule 3. Not
everyone can do complying development. Clauses 3.2 and 3.3 of the Byron LEP
2014 lists where complying development cannot be carried out. That is, where there
is critical habitat of an endangered species, populations or communities, wilderness
areas, and environmentally sensitive areas (as defined above under exempt
development). For further details on Complying Development refer to Appendix D
and E for clauses 3.2 and 3.3.
Draft complying planning controls
As a result of the Discussion Paper Workshops, Council has revised the draft
complying planning controls. In Table 2 the first column shows what was initially
proposed and the second column shows the final draft that Council is now
considering.
To take effect an amendment to the Byron LEP 2014 Schedule 3 is required to insert
the following provisions.
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Table 2: Complying Planning Controls
Complying controls proposed in
Discussion Paper
Revised Complying controls post
Discussion paper workshops
FINAL DRAFT
(1) In this clause short term holiday
accommodation is tourist and visitor
accommodation in a dwelling house
that provides short term
accommodation on a commercial
basis, but excludes backpackers
accommodation, bed and breakfast
accommodation, farm stay
accommodation, hotel or motel
accommodation, and serviced
apartments.
(1) The subject dwelling must be located
in a zone where dwellings are
permitted with consent,
(2) The subject dwelling house must be
located in a zone where dwellings
are permitted under Byron LEP
2014,
(3) The dwelling house must not contain
more than 3 bedrooms
(2) The dwelling must not contain more
than 3 bedrooms,
(4) To facilitate family holidays:
I. The maximum number of
occupants is 8
II. The number of occupants 16
years or over is restricted to 2 per
bedroom up to a maximum of 6
occupants for 3 bedrooms
(3) Garbage and recycling bins to be
provided and serviced on a regular
basis,
(5) Garbage and recycling bins to be
provided, serviced and managed on
a regular basis,
(4) If the dwelling is located in a bush
fire prone area, a bush fire
evacuation plan must be attached to
the dwelling in a prominent location,
No change
(5) Must comply with Building Code of
Australia,
Delete
(6) If the dwelling is located in a bush
fire prone area, a bush fire
evacuation plan must be attached to
the dwelling in a prominent location,
This is already addressed in Byron LEP
2014 Part 3, Cl 3.1 (3) – Exempt
Development
(7) The dwelling house must have hard
wired smoke alarms, evacuation
lighting, fire blanket and extinguisher
in kitchen.
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Complying controls proposed in
Discussion Paper
#E2014/63820
Revised Complying controls post
Discussion paper workshops
FINAL DRAFT
(6) Carparking to comply with Part B4
Byron Shire DCP 2014,
No change
(8) Carparking to comply with Part B4
Byron Shire DCP 2014
Provisions would need to be included in
DCP Chapter B4 Table B.41.
Car parking rates would be the same as
proposed in exempt development above.
(7) There must not have been 2
substantiated complaints to the
Council concerning the holiday letting
activities taking place on the property
from the occupiers of separate
dwellings located within the proximity
of the subject dwelling within the
preceding 12 months, and
No change
(8) Only where use does not interfere
with the amenity of the
neighbourhood to the extent that
Council could issue a Notice, Order
or Direction.
No change
(9) There must be no more than 2
substantiated complaints to the
Council concerning the holiday
letting activities taking place on the
property from the occupiers of
separate dwellings located within
the proximity of the subject dwelling
within the preceding 12 months
(10) Only where use does not interfere
with the amenity of the
neighbourhood to the extent that
Council could issue a Notice, Order
or Direction.
(11) The certifier must register the use of
the dwelling for short term holiday
accommodation on Council’s
register prior to commencement and
the owner must ensure registration
is maintained
(12) The use of the dwelling house for
short term holiday accommodation
must abide by the REINSW Holiday
Rental Code of Conduct. Details to
be provided to the tenant of their
rights and responsibilities.
(13) The land owner or appointed
property manager (eg Real Estate
Agent) must be contactable 24
hours 7 days a week and to be able
to respond within 30minutesin
person to complaints regarding the
action of tenants and in particular
issues pertaining to noise and
residential amenity.
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Complying controls proposed in
Discussion Paper
#E2014/63820
Revised Complying controls post
Discussion paper workshops
FINAL DRAFT
(14) A sign with an area of 0.5 m2 to be
placed on the front gate, letterbox or
some other locations which can
clearly be seen from the public
domain (eg footpath) advising the
public of the land owners or property
managers details including
telephone number to enable
complaints to be readily made and
wording to advise that the property
is ‘Registered with Byron Shire
Council’.
(15) The land owner or appointed
property manager must maintain a
logbook to record the number of
quests and their dates of stay.
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Development Assessment
Previous development assessment options considered in the
Discussion Paper
The Discussion Paper outlined draft controls for two options: precincts and zoning as
required by Council resolution. Both options would have allowed dwelling houses
within defined areas to be holiday let either by inclusion of an overlay map in Byron
LEP 2014 for the precincts option or by permitting the use with consent in the zone
for the zoning option.
Of both options presented, the zoning option garnered more support and still has
merit; although it does not fully address the equity issue for existing holiday lets
outside the zone. The zone option proposed to rezone defined areas of R2 to R1 and
also allow holiday homes in the R3, B2, B4, rural and village zones. One
disadvantage of this option is that any existing holiday homes in a R2 zone that is not
rezoned to R1 will not be able to continue to rent their dwellings for STHA.
Discussions with Department of Planning and Environment on the draft precinct and
zoning options indicated their lack of support to both options as they would
concentrate the location of STHA, potentially create ‘ghost communities’ when
tourists leave and pose equity issues to existing holiday homes outside the zone.
Another disadvantage in applying an R1 General Residential zone is the mandated
additional permitted uses in the Standard Instrument LEP that are prohibited in the
R2 Low Density Zone. These include hostels, residential flat buildings, and shop top
housing, and are at odds with Councils provisions for the Low Density Zone.
Although the zoning option has some merit Council is moving forward with an open
model, which will enable any existing dwelling so long as the dwelling is permissible
under Byron LEP 2014 to be rented as a holiday home. This will enable market
forces of supply and demand to determine the most appropriate location for holiday
homes, whilst planning controls will assist with managing user behaviour. In this
regard it is likely that properties that are not in proximity to beaches, town centre
areas and other amenities will not be highly sought after, and land owners may then
return the property to general residential use.
The option of open controls was not included in the Discussion Paper. However as a
result of the feedback from the Discussion Paper Workshops and preliminary
Department of Planning and Environment advice it is an option that Council is now
considering.
What is ‘Open’ development consent for STHA?
This option will enable development consent to be sought to use dwelling houses not
covered by the exempt and complying provisions as holiday homes. This includes:

Larger dwelling houses of 4 or more bedrooms;

Smaller dwelling houses that cant comply with the complying provisions

Dwelling houses that want to rent for periods outside of School Holidays

Dwelling houses that are constrained by environmentally sensitive land and
the like (eg a house within 100 metres of SEPP 14 Wetland)
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The controls will enable the dwelling house to be used as holiday home permanently
throughout the calendar year. It is noted though should a tenant rent a dwelling
house for more than 3 months, they are considered residential tenants and the land
owner should enter into the appropriate lease under the Residential Tenancies Act
2010. The use of a dwelling house for this purpose would not require consent.
The controls will apply to any dwelling house in the Shire, so long as it’s permitted
under Byron LEP 2014.
Draft ‘open’ planning controls
As a result of the Discussion Paper Workshops, Council has decided to prepare draft
open development assessment controls as provided in Table 3.
Table 3: Open development consent controls
New Open Development consent controls
(1) The objective of this clause is to require development consent for the temporary
use of a dwelling house as short term holiday accommodation.
(2) The subject dwelling must be located in a zone where dwelling houses are
permitted under Byron LEP 2014.
(3) In this clause short term holiday accommodation is tourist and visitor
accommodation in a dwelling house that provides short term accommodation on
a commercial basis, but excludes backpackers accommodation, bed and
breakfast accommodation, farm stay accommodation, hotel or motel
accommodation, and serviced apartments.
(4) Despite any other provision of this Plan, development consent may be granted
for the use of a dwelling house as short term holiday accommodation.
(5) The maximum number of occupants is 2 per bedroom with no more than 8
occupants 16 years or older for 4 or more bedrooms and with no more than 10
occupants in total.
Provisions relating to amenity; car parking; registration; complaints etc are addressed
in the following draft Development Control Plan (DCP) provisions. Applicants will
need to demonstrate to Council through the development assessment process how
they comply with both the LEP and DCP controls.
Draft Development Control Plan Provisions
In support of the LEP clause, an amendment to Byron DCP 2014 Chapter D3 Tourist
Accommodation is required for the following provisions to take affect. It is proposed
that a new section be inserted to cover the use of dwelling houses as holiday homes.
The draft controls are largely focused on management of the property with the aim of
minimising impacts on the residential amenity of the surrounding neighbourhood. The
following draft measures are proposed.
Amend Byron DCP 2014 Part A, Appendix A.1 to include the following definition:
Short Term Holiday Accommodation is tourist and visitor accommodation in a
dwelling house that provides short term accommodation on a commercial basis,
but excludes backpackers accommodation, bed and breakfast accommodation,
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farm stay accommodation, hotel or motel accommodation, and serviced
apartments.
Insert the following new provisions in DCP 2014:
D3.3.8 Short Term Holiday Accommodation
Objectives
1. To ensure that the design and operation of Short term holiday
accommodation is compatible with the amenity and character of the locality
and considers potential impacts of the use on the adjoining and nearby
residents’ enjoyment of their residences.
Performance Criteria
1.
The design and operation of short term holiday accommodation must be
compatible with the streetscape and character of development in the locality.
2.
The design and operation of short term holiday accommodation must not
adversely affect the amenity of the precinct in which it is located.
Prescriptive Measures
Short term holiday accommodation must:
a)
not be for any period greater than 90 days;
b)
provide car parking in accordance with Chapter B4 Traffic Planning,
Vehicle Parking, Circulation and Access;
c)
be no more than 2 substantiated complaints to the Council concerning the
holiday letting activities taking place on the property from the occupiers of
separate dwellings located within the proximity of the subject dwelling
within the preceding 12 months;
d)
provide garbage and recycling bins that are serviced and managed on a
regular basis;
e)
ensure that on-site effluent treatment systems are adequate for short term
holiday letting of dwellings;
f)
provide a bush fire evacuation plan, if the dwelling is located in a bush fire
prone area and the plan must be attached to the dwelling in a prominent
location; (NB. An approval may also be required under Section 100B of the
Rural Fires Act 1997. This can be sought concurrently with the
development application.)
g)
register the use of the dwelling house for STHA on Council’s register prior
to commencement and maintain registration;
h)
Provide details on a sign with an area of 0.5 m2 to be placed on the front
gate, letterbox or some other locations which can clearly be seen from the
public domain (eg footpath) advising the public of the land owners or
property managers details including telephone number to enable easy
contact and wording to advise that the property is ‘Registered with Byron
Shire Council’.
i)
The use of the dwelling house for short term holiday accommodation to
comply with the REINSW Holiday Code of Conduct.
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Submit a Management Plan with the application nominating a manager
who lives in the vicinity of the property. The manager can be the land
owner, a real estate agent or other form of property manager. Plan to
include details on the following:
i)
How nuisance issues such as noise will be managed by the
manager/ land owner and who to contact in the first instance for a
noise / nuisance complaint (ie the manager should be the first
respondent not Council or the Police). Any response to a noise /
nuisance complaint any day of the week to be within 30 minutes of
the complaint being made;
ii) Neighbouring households including those opposite the property to be
provided with contact details of the manager/ land owner and a copy
of the house rules applying to the management of the property;
iii) How guest numbers will be monitored and restricted as per the LEP
requirements, including maintaining a logbook to record the number
of quests and their dates of stay;
iv) Restrictions on utilising outdoor areas between 10pm and 8am
including decks, balconies, swimming pool and spa areas;
v) Prohibition on camping, caravanning, camper vans being used on
the property for additional accommodation;
vi) The dwelling house not to be utilised for private parties, including
hens nights, bucks parties, weddings or other functions at any time;
vii) Management of dogs and other pets;
vii) All car parking to be contained onsite;
viii) Measures to ensure occupants are aware of their obligations and
responsibilities in terms of the management of the property, noise,
use of onsite facilities and (eg pools and spas) and other
requirements of the management plan.
Conditions of consent which may be imposed

Under Clause 80(1) (d) of the EP&A Act 1979 Council may impose time
limited development consent. Approval may be initially granted for a period of
1 year to ensure the property is managed effectively and there are minimal
impacts on neighbours. At the end of the period, consent may be sought for a
longer timeframe. Where two substantiated complaints of a serious nature
that impacted on neighbouring properties have been received, an extension
of the consent may not be granted.

The use of the dwelling house for short term holiday accommodation must
abide by the REINSW Holiday Rental Code of Conduct. Details to be
provided to the tenant of their rights and responsibilities.

Outdoor areas such as swimming pools/spas, outdoor decking/balconies or
other spaces will be limited in their hours of operation in their use.

The use of the dwelling for Holiday letting to not impact on the residential
amenity currently enjoyed by surrounding residents. Use to comply with
POEO Act 1997 and associated Noise Regulations.

The maximum number of occupants who may be on the premises at any time
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
The maximum number of attendants/visitors who may be on the premises
during specified hours.

The maximum number of vehicles that can be parked on the premises at any
time.

Measures to ensure effective communication to occupants of the conditions of
registration and emergency management procedures

The land owner or appointed property manager (eg Real Estate Agent) must
be contactable 24 hours 7 days a week and to be able to respond within
30minutes in person to complaints regarding the action of tenants and in
particular issues pertaining to noise and residential amenity.

A sign with an area of 0.5 m2 to be placed on the front gate, letterbox or
some other locations which can clearly be seen from the public domain (eg
footpath) advising the public of the land owners or property managers details
and to enable complaints to be readily made and wording to advise that the
property is ‘Registered with Byron Shire Council’.

Appropriate tenancy agreement between occupants and the land owner
specifying the obligations of both parties in relation to the conditions of
operation for the property as a holiday home.
Councilcanissuefinesupto$1500forabreachofConditionsofConsent
arisingoutofcomplaints,throughaPenaltyInfringementNotice.Such
fineswouldbeimposedonthelandowner.Whereamatterischallengedin
theLocalCourtortheLandandEnvironmentCourt,suchfinescanincrease
toamaximumof$110,000or$1.1millionrespectively.Landlordswould
needtomanageshorttermtenantsaccordinglytoensuretheresidential
amenityoftheneighbourhoodisnotdetrimentallyimpacted.Landlords
maywishtotakeabondfromtenantstocoverthecostofpotentialfinesas
thefinesmaynotbeservedontheshorttermtenant.Councilcannotlevy
bondsonthelandownerortenantasaconditionofconsentunderSection
80AoftheEPAAct1979inrelationamenityissues,offensivebehaviour,
unacceptablenoiseandthelike.
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Amend Byron DCP 2014 Chapter B4 Traffic
Planning, Vehicle parking, circulation and
Access
As discussed above Table B4.1 needs to be amended to provide car parking rates
for STHA as follows:
Table 4: Car Parking Rates
Land Use
Short Term Holiday
Accommodation
Car parking
Bicycle Spaces
No. of
bedrooms
Parking
1-2
1 space
3-4
2 spaces
>5
3 spaces
No specific rates
Stacked parking permitted
for 1 vehicle.
Compliance
As discussed previously the strategy is aimed at providing a regulatory framework for
short term holiday accommodation, establishing mechanisms for Council to respond
to in terms of complaints, and measures for management of this form of tourist and
visitor accommodation. It will require the goodwill of industry and Council to follow
through on any compliance matters.
With the adoption of planning controls and their implementation through amendments
to Byron Local Environmental Plan 2014, it is anticipated that Council should provide
a grace period for land owners to obtain the necessary approvals to continue
operating, and a period of 12 months is proposed. However in making landowners
aware of their responsibilities, it is recommended that appropriate media releases be
provided to the local media organisations, advice be provided to land owners directly
through mail (eg attachments to Rates Notices) in addition to the standard notices
provided with exhibition of amendments to a Local Environmental Plan.
Notwithstanding the above, Council has the ability to take action against land owners
in relation to poorly operated and managed properties whereby the behaviour of
tenants is considered inappropriate and or is causing a significant impact on the
amenity of the neighbourhood.
There will be an expectation that the strategy will result in a larger Council ‘policing’
presence, and Council will need to consider if additional resources are required. In
particular Rangers may need to be on - call during peak holiday periods to respond to
complaints after hours and to collect evidence when required in relation to breaches
of Councils planning controls, conditions of approval and inappropriate behaviour
which adversely impact on residential amenity.
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Changes to existing planning controls for other
forms of Tourist and Visitor Accommodation
In developing the holiday letting controls it became apparent that other tourist and
visitor uses of a dwelling had more stringent controls. The following matters have
been proposed for review in line with the development of the Short Term Holiday
Accommodation Strategy:
Table 5: Existing forms of tourist and visitor accommodation
Bed and
Breakfast
Couch surfing –
‘Air B&B’
Serviced
Apartments
Rural Tourist
Accommodation
Need to review
LEP and DCP
controls to ensure
equity with Holiday
Let to allow up to 5
bedrooms and
increase number of
guests
Consider exempt
provisions to
enable 1 bed B&
B’s as exempt
Already permitted
in medium density
zones eg Lawson
Street, but
excluded from B4
Mixed use Zone.
Provision for rural
cabins provided in
Clause 6.8 of Byron
LEP 2014 and
Chapter D3 of Byron
DCP 2014
Bushfire prone
land may need to
be excluded
Review carparking
requirements
S94 fees
Bed and Breakfast Accommodation
The number of guests and guest bedrooms are restricted for bed and breakfast
establishments under Byron LEP 2014 and Byron DCP 2014 to 3 bedrooms and 6
guests respectively. As a matter of equity it is appropriate that the controls for bed
and breakfasts be on the same footing as short term holiday accommodation for
dwelling houses. Significantly it is important to remember that a bed and breakfast
has an on-site manager (sometimes the owner) who is able to respond quickly to
issues such as noisy guests, and is a resident of the neighbourhood and member of
the community. It is recommended that the number of guest bedrooms be increased
to 5 and the number of guest to 10. This will require an amendment to Clause 5.4 of
Byron LEP 2014 and D3.3.2 Bed and Breakfast Accommodation under DCP 2014.
It has also come to the attention of Council that there are a number of websites such
as “airbnb” and “riparide” that are also providing bed and breakfast style
accommodation within dwelling houses. In essence development consent is required
for any forms of bed and breakfast establishments under Byron LEP 2014. It is noted
though such sites seem to promote the renting of the spare bedroom with “riparide”
also indicating that a surf board should also be included as part of the holiday
package for travelling surfers during the guest stay. To facilitate this, an addition to
Council exempt provisions under Schedule 2 of Byron LEP 2014 is proposed to
permit 1 bedroom bed and breakfasts without consent as follows:
Bed and Breakfast Accommodation
1. No more than one guest bedroom;
2. A maximum of two guests 16 years or over;
3. Offer at least breakfast to guests;
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4. Owner or operator to be a permanent resident of the dwelling;
5. Register the use of the dwelling house on Council’s register prior to
commencement and maintain registration;
6. The accommodation to be provided within the dwelling house; No guest
accommodation to be provided within secondary dwellings, sheds, tents,
caravans or other structures or vehicles on the site;
7. Guest parking to be provided on site (Stacked parking within the driveway
permitted); and
8. Not permitted on land identified as bushfire prone land.
The exempt provisions will not suit every property or every situation; however
development consent can be obtained in most zones under BLEP 2014 for bed and
breakfasts as an alternative.
The number of car parks for bed and breakfasts was also raised as an issue as too
onerous and had the potential for landowners to holiday let instead. The current
controls require 1 space per guest bedroom and 1 space for the dwelling house.
These controls have recently been reduced from the previous rates in Part G of DCP
2010 which required two spaces for the dwelling house and one for each guest room.
The new controls would require a bed and breakfast with five guest rooms to have 6
car parking spaces; previously 7 spaces would have been required. The current
controls assume a worst case scenario that guests arrive in their own vehicles or
rental cars and make no allowance for those guests that arrive by plane and shuttle
bus/ taxi from the airport. Tweed Shire and Lismore City Council have the same
rates, whilst Ballina require two for the dwelling house and 1 per guest bedroom.
Looking further afield, Gosford City and Port Macquarie Hastings Councils also have
similar rates to our current car parking controls.
In the absence of any specific parking studies, and acknowledging Council’s parking
rates have been reduced from what was previously required under Part G of DCP
2010, no recommendations are made to reduce parking. It is noted though applicants
can seek variations to the numerical standards and it is normal practice for Council to
accept well researched parking studies by applicants that justify a reduction. If further
evidence is provided to or obtained by Council, that the parking rates are generally
incorrect and need reducing, then Council can act accordingly to amend such rates.
It is recommended though that Table B4.1 be amended to include a specific note that
stack parking, the parking of vehicles behind another, is permitted for bed and
breakfast establishments, having regard to an onsite manager who can facilitate the
moving of vehicles as required.
Serviced Apartments
Serviced apartments are a form of tourist and visitor accommodation which are
permitted in the B3 Medium Density Zone, B2 Local Business Zone and the SP3
Tourist Zone. The use has not been listed as a permissible use in the B4 Mixed Use
Zone which permits a range of commercial and residential uses including shop top
housing, residential flat buildings and hotel and motel accommodation. In terms of
the mixed range of uses that are already permitted in the zone it is considered that
Serviced Apartments should also be nominated as permitted with consent in the B4
Zone.
It is also noted that under chapter D3 Tourist Accommodation of DCP 2014 there is a
short section on Serviced Apartments, however there are no specific prescriptive
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measures for this type of tourist accommodation. To facilitate this type of
development and to provide guidance to applicants and the community alike, it is
recommended that the DCP be amended to include a schedule of prescriptive
measures addressing amenity and management issues as detailed below.
It is noted that in some serviced apartments, a manager may live onsite and is readily
available to deal with noise complaints and amenity issues. In such situations the
prescriptive measures can be easily addressed, however as the definition for
serviced apartments does not require an onsite manager, then the potential for
amenity and management issues to arise exists. The following draft prescriptive
measures are proposed:
a)
not be for any period greater than 90 days;
b)
provide car parking in accordance with Chapter B4 Traffic Planning,
Vehicle Parking, Circulation and Access;
c)
provide garbage and recycling bins that are serviced and managed on a
regular basis;
d)
register the use of the serviced apartment for STHA on Council’s register
prior to commencement and maintain registration;
e)
Provide details on a sign with an area of 0.5 m2 to be placed on the front
gate, letterbox or some other locations which can clearly be seen from the
public domain (eg footpath) advising the public of the serviced apartments
managers details including telephone number to enable easy contact and
wording to advise that the property is ‘Registered with Byron Shire
Council’.
f)
The use of the serviced apartment for short term holiday accommodation
to comply with the REINSW Holiday Rental Code of Conduct.
g)
Submit a Management Plan with the application nominating a manager
who lives in the vicinity of the serviced apartment or property. The
manager can be the land owner, a real estate agent or other form of
property manager. Plan to include details on the following:
i)
How nuisance issues such as noise will be managed by the
manager/ land owner and who to contact in the first instance for a
noise / nuisance complaint (ie the manager should be the first
respondent not Council or the Police). Any response to a noise /
nuisance complaint any day of the week to be within 30 minutes of
the complaint being made;
ii) Neighbouring households including those opposite the property to be
provided with contact details of the manager/ land owner and a copy
of the house rules applying to the management of the property;
iii) How guest numbers will be monitored and restricted;
iv) Restrictions on utilising outdoor areas between 10pm and 8am
including decks, balconies, swimming pool and spa areas;
v) Prohibition on camping, caravanning, camper vans being used on
the property for additional accommodation;
vi) The serviced apartment not to be utilised for private parties, including
hens nights, bucks parties, weddings or other functions at any time;
vii) Management of dogs and other pets;
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vii) All car parking to be contained onsite;
viii) Measures to ensure tenants are aware of their obligations and
responsibilities in terms of the management of the property, noise,
use of onsite facilities and (eg pools and spas) and other
requirements of the management plan.
Rural Tourist Accommodation
Byron Shires traditional form of rural tourist accommodation has been based around
stand alone cabins with a maximum of 6 cabins permitted on properties with an area
of more than 20 hectares. The new Byron LEP 2014 includes a definition for farm
stay accommodation, which means:
‘a building or use that provides temporary or short term accommodation to
paying guests on a working farm as a secondary business to primary
production’
This definition does not cover those proposals on large properties which are no
longer working farms. However, Clause 6.8 Rural and nature-based tourism
development in Byron Shire LEP 2014 facilitates those rural cabin type proposals
which don’t fall into the category farm stay accommodation, but to provide clarity and
enable this clause to apply to rural tourist accommodation on rural land an
amendment is required to zones RU1 and RU2 in the Byron LEP 2014. The
amendment would make tourist and visitor accommodation permissible with consent
in these zones and prohibit those forms which remain unsuitable such as hotel and
motel accommodation, serviced apartments and backpackers accommodation.
Chapter D3 Tourist Accommodation in Byron Shire DCP 2014 has established a set
of controls and guidelines which would apply to cabin development used as rural
tourist accommodation with density provisions for the number of bedrooms based on
the area of the land and controls restricting the size of cabins. DCP 2014 defines
rural tourist accommodation as:
‘means (in relation to Section D3.3.4 and D3.3.5 of this DCP) a structure
containing a room or suite of rooms used, or intended to be used, for the
provision of holiday accommodation only. Such accommodation is to have a
maximum of two bedrooms and must be freestanding’
No specific changes are warranted to the DCP.
Section 94 Contributions
The issue of Section 94 Contributions was raised as an unfair restriction and cost
impost on bed and breakfast establishments compared to the use of dwelling houses
as short term holiday accommodation. Councils previous Section 94 Plans did levy
Contributions on this type of tourist and visitor accommodation that was well
managed and raised little issues for Council in terms of amenity complaints. The
current plan (Section 94 Plan 2012) has removed this impost on the payment of
Section 94 Contributions where application is made to convert an existing dwelling
house to a bed and breakfast establishment. However contributions may be payable
if application was made to construct a bed and breakfast establishment under
Section 94A with contributions levied on cost of construction as follows

Cost of works up to $100,000 – nil

Cost of works >$100,000 up to $200,000 – 0.5%
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Cost of works >$200,000 – 1 %
Equally, these levies would also apply to an applicant seeking consent to construct
serviced apartments, farm stay accommodation and a dwelling house to be
specifically used for short term holiday accommodation. It is considered the cost of
the S94A levies are significantly less than previously charged under Byron Section
94 Plan 2005, and any inequity no longer exists for bed and breakfast
establishments.
Registration
It is pertinent that Council is aware of what dwelling houses are being used for short
terms holiday accommodation, and the contact details of land owners and property
managers to enable complaints to be dealt with in an expeditious manner. With
Complying Development and Development Applications there is a paper trail that
Council will have record of but it will be only be accurate at the time the application
was made. For exempt development there is no application and therefore no paper
trail as such.
Out of the Discussion Paper Workshops licensing was requested for holiday let
properties for ongoing approvals; however there is no mechanisms under the Local
Government Act 1993 to establish a licensing regime.
It is intended though that Council create a method for land owners to register their
properties for short term holiday accommodation on Council’s web site.
Registration must:

be made by, or on behalf of the owner/s of the holiday home

nominate a person, who may or may not be the owner (eg. real estate agent),
to be the proposed manager of the holiday home with their contact details,
including phone and email addresses and that person is able and capable of
responding to a noise/nuisance complaint, 7 days a week to be within 30
minutes of that complaint being made.

Nominate what level of approval has been given for the short term holiday
accommodation use (eg exempt, complying development or development
application), including approval numbers and date of approval if applicable.

Nominate number of bedrooms, guests and onsite car parking spaces

Confirm they will abide by the requirements to operate the dwelling house for
short term holiday accommodation in accordance with the requirements of
Council including any conditions of consent or approval.

Be updated when circumstances change (eg change of landowner or property
manager)

For exempt development, advise when the property will be let for short term
holiday accommodation throughout the year having regards to the less than
90 day maximum and school holiday period.
In terms of fees, it is recommended that Council investigate whether a nominal fee
can be charged for registration and to cover the cost of establishing and maintaining
the register.
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At this stage it is uncertain as to what type of registration system is possible on
Council’s current IT systems. Ideally the register should be able to be accessed
directly by owner/managers/certifiers to create and update their details, interface with
other Council systems such as rates and for Council to run reports and interrogate
the data. Council will need to undertake a scoping analysis to determine what’s
required of the register and what’s feasible within Council’s IT systems.
The register could also be used by land owners who are no longer using their
dwellings for short term holiday accommodation to de-register their properties which
would provide information to Councils Finance Section in terms of rates.
Rates
Rates are levied under Chapter 15 Part 3 of the Local Government Act 1993, and are
divided up into four categories being:

Farmland;

Residential;

Mining

Business;
In general rates are based on the dominant use of the property as discussed under
Sections 515, 516, 517,and 518 of the Local Government Act 1993.
Council currently levies business rates on some properties in Byron Shire that are
used as Tourist and Visitor Accommodation. Opportunities would exist for Council to
explore this further and specifically those properties that have been taken out of the
property market and used permanently for short term holiday accommodation may be
levied business rates as the dominant use of the property would be to provide tourist
and visitor accommodation. Should the owner stop using the property for short term
holiday accommodation and the owner returned to live in the property or it was
rented out to tenants on a permanent basis (3 months or more) then the owner could
then apply to have the property rated residential instead of business. Such rating
changes and requests are normal for Council to action in its day to day management
of the rating system under the Local Government Act 1993.
Action Plan
The Strategy will need to be exhibited for a minimum period of 28 days, and following
the close of exhibition any submissions received including from Government
Agencies such as the Department of Planning and Environment, will need to be
considered. It is intended that the final version with any amendments be reported
back to Council for adoption in early 2015. Once the strategy is adopted a number of
actions need to occur and the following Action Plan is proposed.
Action
Detail
When/who/how
Amend Byron
LEP 2014
Insert exempt provisions in Schedule
2 for Short Term Holiday
Accommodation
Councils Environment and
Economic Planning
section within the
Sustainable Environment
Insert complying provisions in
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Detail
When/who/how
Schedule 3 for Short term holiday
Accommodation
and Economic Directorate
prepare a Planning
Proposal to amend the
Byron LEP 2014, refer to
the Department of
Planning for Gateway
determination, and
publicly exhibit and report
to Council as required
under the EPA Act 1979.
Insert new clause 6.10 Short Term
Holiday Accommodation
Insert Serviced Apartments in Zone
B4 as permissible with development
consent
Insert Tourist and Visitor
Accommodation in the RU2 and RU1
Zones as permissible with consent,
and list motel and hotel
accommodation, Backpackers and
Serviced Apartments as prohibited
Time frame: March to
September 2015.
Cost: existing budget
Amend Clause 5.4 to increase the
number of bedrooms to 5
Insert exempt provisions in Schedule
2 for 1 bedroom Bed and breakfast
establishments
Amend Byron
DCP 2014
Chapter B4 Traffic Planning, Vehicle
Parking, Circulation and Access,
Table B4.1 Car parking rates for
STHA and minor amendment to car
parking rate for Bed and Breakfast
with reference to stack parking.
Chapter D3 Tourist Accommodation
– include DCP provisions for STHA
- include prescriptive provisions for
serviced apartments
- amend B and B provisions to
enable 5 bedrooms and 10 guests.
Environment and
Economic Planning
Section within the
Sustainable Environment
and Economic Directorate
prepare the relevant DCP
amendments, publicly
exhibit and report to
Council as required under
the EPA Act 1979
Time frame: March to
September 2015.
Cost: existing budget
Part A, Appendix A.1 – include
definition of STHA
Register
Investigate whether a nominal fee
can be charged for registration and
to cover the cost of establishing and
maintaining the register.
Scoping analysis to determine
register design and what’s feasible
within Council’s IT systems.
Develop web based register for Short
Term Holiday Accommodation and
Serviced Apartments.
Rating of
Properties
Councils Finance Section to be kept
up to date on changes to Councils
planning controls and briefed
Development Assessment
and Compliance Section
with IT.
Timeframe: July to
September 2015.
Cost: development of the
register may require
additional funding. If
required this will be
reported to Council post
the scoping analysis.
Environment and
Economic Planning
Section and Development
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Detail
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When/who/how
accordingly.
Assessment and
Compliance Section within
Advised of any applications approved
the Sustainable
for STHA including complying
Environment and
development and serviced
Economic Directorate
apartments, and properties
registered.
Timeframe: Ongoing
Cost: existing budgets
Compliance
With adoption and implementation of
Controls, Council will need to ensure
compliance with planning provisions.
Development Assessment
and Compliance Section
within the Sustainable
Environment and
Additional resources may be required
Economic Directorate
during peak holiday periods to
respond to after hour complaints and Timeframe: Ongoing
to collect evidence.
Cost: funds may be
required to provide
additional resources
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Dictionary
Bed and Breakfast Establishments
means an existing dwelling in which temporary or short-term accommodation
is provided on a commercial basis by the permanent residents of the dwelling
and where:
(a) meals are provided for guests only, and
(b) cooking facilities for the preparation of meals are not provided within
guests’ rooms, and
(c) dormitory-style accommodation is not provided.
Dwelling
means a room or suite of rooms occupied or used or so constructed or
adapted as to be capable of being occupied or used as a separate domicile’
Dwelling House
means a building containing only one dwelling.
Farm Stay Accommodation
a building or use that provides temporary or short term accommodation to
paying guests on a working farm ass a secondary business to primary
production
Serviced Apartments
a building (or part of a building) providing self-contained accommodation to
tourists or visitors on a commercial basis and that is regularly serviced or
cleaned by the owner or manager of the building or part of the building or the
owners or managers agent
Short term holiday accommodation (STHA)
tourist and visitor accommodation in a dwelling house that provides short term
accommodation on a commercial basis, but excludes backpackers
accommodation, bed and breakfast accommodation, farm stay accommodation,
hotel or motel accommodation, and serviced apartments.
Tourist and Visitor Accommodation
means a building or place that provides temporary or short-term accommodation
on a commercial basis, and including any of the following:
(a) Backpackers’ accommodation
(b) Bed and breakfast accommodation
(c) Farm stay accommodation
(d) Hotel or motel accommodation
(e) Serviced apartments”
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Appendices
Appendix A – Holiday Letting Strategy Discussion Paper
(#E2014/31293, 6pgs)
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
www.byron.nsw.gov.au
Holiday Letting Strategy
Discussion Paper
May 2014
The Holiday Letting Discussion Paper consolidates information and refines options gathered during 2013.
It outlines draft planning control options to regulate holiday letting and poses a number of questions which
will form the basis of a workshop with key stakeholders. The Discussion Paper workshop will inform
the development of Council’s Holiday Letting Strategy, culminating in an amendment to Council’s Local
Environmental Plan to give effect to the planning control provisions.
Holiday Letting Strategy will: What is Holiday Letting?
Basically a dwelling house that is let for a short term period for holiday
accommodation purposes.
1. Address community concerns and
aspirations.
2. Improve certainty for Holiday let owners/
managers, guests, neighbours and
community.
3. Improve equity between holiday lets and
other uses of a residential dwelling such
as bed and breakfast and rentals under
the Residential Tenancies Act.
4. Will reduce the neighbourhood impacts of
holiday letting
5. Will ensure that there is a regulatory
framework in place so that Council
can effectively respond to holiday let
complaints.
It is an important provider of tourist accommodation in the Shire providing around
30% of tourist accommodation in Byron Shire
Time to Act - reasons why
Amenity (noise, antisocial behaviour), equity, certainty, compliance, and loss of sense
of community
Affordable housing - driving up costs of rental accommodation, driving up value of
property with investors looking at potential return from holiday letting instead of
standard rental returns and willing to pay higher prices for dwellings
Infrastructure demands – car parks, amenities etc cost being met by broader
community
6. Allow a period of time for compliance.
Legal precedence
Key Messages:
1. The community’s feedback is valued and
will help guide the development of the
new Holiday Letting Strategy.
2. Regulating Holiday Letting may mean that
Holiday let owners/managers may have
to pay development costs and or business
rates. It will mean that some forms of
holiday letting will require a development
application; some may be complying
development; and some may be exempt
development.
3. Regulating Holiday Letting will provide
certainty for Holiday let owners/managers,
guests, neighbours and community.
4. Holiday Letting is an important component
of Byron’s tourist accommodation market
and thus its economy. Byron Shire Council
Upward of 900 dwellings are used for holiday letting in the Shire.
Dobrohotoff vs Bennic (2013) NSW Land and Environment Court (Terrigal Case);
found the use of a dwelling house for short term holiday rental accommodation was
prohibited as the use of the property was not sufficiently permanent to comprise a
‘dwelling house’ in residential 2(a) zone under Gosford City Councils LEP.
Implications of the decision: Councils refusal to act on the neighbours complaints
was found to be an ‘abrogation of council’s fundamental duties and responsibilities’.
If present, councils have a duty to amend ambiguous terms and remedy any
deficiencies in their planning instruments.
Council received a letter from the Planning Minister’s advising council that it is a
‘local issue and as such it is up to local Councils to manage holiday letting……
councils may choose to address amenity issues relating to holiday letting in their
local plans’
One size fits all?’
Several levels of assessment are proposed to regulate short term holiday letting of
dwellings. All levels of assessment will require goodwill of industry and Council to
follow through on any compliance matters. These controls will apply to all landlords/
managers wanting to holiday let their property.
70-90 Station St, Mullumbimby NSW 2482
Phone: 02 6626 7000
www.byron.nsw.gov.au
Levels of assessment for Short Term Holiday Letting of a Dwelling*
Issue
What
Exempt
Wherever exempt
development
permissible and only
where ‘dwellings’
permissible in the
zone
Complying
Development Assessment
Option 1: Precinct
Option 2: Zoning
Wherever complying
development
permissible and only
where ‘dwellings’
permissible in the zone
Only allowed within defined
precincts, on an overlay map,
in various towns and villages
but only where a ‘dwelling’ is
permissible
R1 zone applied to R2 residential
zone in precinct areas, excluding
business zones and R3 residential
Up to 3 bedrooms
Excludes ‘tourist and visitor
accommodation’
Up to 5 bedrooms
Only during December
and January and for
not more than 60 days
in any one year
Permit ‘Tourist and visitor
accommodation’ in R3 and B4
zones, but exclude any related
land uses already prohibited in
these zones eg. backpackers
accommodation
4 to 5 bedrooms
Considered a form of ‘tourist and
visitor accommodation’
4 to 5 bedrooms
Some
advantages
Enables everyone or
only those in defined
precincts to holiday let
their dwelling house
for a short defined
period
Some
disadvantages
Able to collect business
rate
Clearly defined precinct provides
certainty for everyone
Clearly defined zone provides
certainty for everyone
Approval certainty if can
comply
Permits holiday letting as the only
additional land use
Permits holiday letting as the only
additional land use
Subject to conditions
for noise, fire safety,
building code
Able to collect business rate
Able to collect business rate
Operating certainty if approved
Operating certainty if approved
Able to regulate amenity issues
Able to regulate amenity issues
Ability for public comment on
development applications
Ability for public comment on
development applications
Could issue approval for initial
trial period
Could issue approval for initial trial
period
Dwellings outside the precinct
cannot be holiday let (except if
exempt provisions are open to
everyone)
Dwellings outside the zones
cannot be holiday let (except if
‘tourist and visitor accommodation
already permitted in the zone ie.
B2 Local Centre and SP3 Tourist
zones, and/or if exempt provisions
are open to everyone)
No ability for public
comment on proposal
Will impact on existing holiday
lets outside the precincts
Concentrates holiday lets: higher
impact on long term residents,
loss of community
Will impact on existing holiday lets
outside the zones
Concentrates holiday lets: higher
impact on long term residents,
loss of community
R1 zone mandates additional
permitted uses not permitted in
R2 zone ie. Hostels, Residential
Flat Buildings, Semi-detached
dwellings, Shop top housing
* Dwellings greater than 5 bedrooms would be prohibited from holiday letting.
Land deferred from the draft LEP would need to be considered under Byron LEP 1988 or wait until deferred matters are resolved.
What is a dwelling?
“Dwelling means a room or suite of rooms
occupied or used or so constructed or adapted
as to be capable of being occupied or used as a
separate domicile”
Byron Shire Council
What is ‘tourist and visitor accommodation’?
Tourist and visitor accommodation means a building or place that provides temporary
or short-term accommodation on a commercial basis, and including any of the following:
a) Backpackers’ accommodation
b) Bed and breakfast accommodation c) Farm stay accommodation
70-90 Station St, Mullumbimby NSW 2482
d) Hotel or motel accommodation
e) Serviced apartments
Phone: 02 6626 7000
Holiday Letting Discussion Paper - Planning Controls
Exempt Development
Draft Exempt Development provisions for Schedule 2 Byron
Local Environmental Plan 2014:
Short term holiday letting of a dwelling
1. The subject dwelling must be located in a zone where dwellings
are permitted with consent,
2. Only during December and January and for no more than 60
days in any one year,
3. The dwelling must not contain more than 5 bedrooms,
4. Garbage and recycling bins to be provided and serviced on a
regular basis,
5. If the dwelling is located in a bush fire prone area, a bush
fire evacuation plan must be attached to the dwelling in a
prominent location,
6. Must comply with Building Code of Australia,
7. Carparking to comply with Part B4 Byron Shire DCP 2014,
8. There must not have been 2 substantiated complaints to the
Council concerning the holiday letting activities taking place on
the property from the occupiers of separate dwellings located
within the proximity of the subject dwelling within the preceding
12 months, and
9. Only where use does not interfere with the amenity of the
neighbourhood to the extent that Council could issue a Notice,
Order or Direction.
Complying Development
Draft Complying development provisions for Schedule 3 Byron
Local Environmental Plan 2014:
Short term holiday letting of a dwelling
1. The subject dwelling must be located in a zone where dwellings
are permitted with consent,
2. The dwelling must not contain more than 3 bedrooms,
3. Garbage and recycling bins to be provided and serviced on a
regular basis,
4. If the dwelling is located in a bush fire prone area, a bush
fire evacuation plan must be attached to the dwelling in a
prominent location,
5. Must comply with Building Code of Australia,
6. Carparking to comply with Part B4 Byron Shire DCP 2014,
7. There must not have been 2 substantiated complaints to the
Council concerning the holiday letting activities taking place on
the property from the occupiers of separate dwellings located
within the proximity of the subject dwelling within the preceding
12 months, and
8. Only where use does not interfere with the amenity of the
neighbourhood to the extent that Council could issue a Notice,
Order or Direction.
Q Should exempt holiday let provisions only be allowed in
precincts (as shown on the overlay map) or open to all
zones where a dwelling is permissible?
Q Do you agree with the exempt and complying models?
Q Do you agree with the prohibition of large houses being
holiday let?
Byron Shire Council
Development Assessment
Option 1: Precincts – Draft LEP clause:
Short term holiday letting of dwelling
1. The maximum number of bedrooms for development for
the purposes of short term holiday letting of dwellings is
five (5).
2. In this plan short term holiday letting of dwellings means
an existing dwelling that provides temporary or short term
accommodation on a commercial basis but excludes tourist
and visitor accommodation.
3. Where the dwelling is to be used for short term rental
accommodation development consent is required. Such a
use is only permissible on land identified on the Holiday Let
Overlay Precinct Map (Optional and on RU1, RU2 and R5
zones)
4. The consent authority, must before granting consent
under this clause to the carrying out of short term holiday
letting of dwellings be satisfied that the proposal will not
interfere with the amenity of the neighbourhood in any way,
including by noise or traffic generation.
Option 2: Zoning – Insert a new zone R1 General
Residential to permit holiday letting of a dwelling house
and amend Land Use Tables
Amend the existing R2 zones within the precinct maps to R1
and allow tourist and visitor accommodation as permissible in
the R3 and B4 zones.
Predicated on the understanding that holiday letting of a
dwelling satisfies the parent definition ‘tourist and visitor
accommodation’.
Existing related land uses under ‘tourist and visitor
accommodation’ that are currently prohibited will continue
to be prohibited in these zones, for example, ‘backpackers
accommodation’ in the residential zones.
Option 2: Zoning - Draft LEP clause
Short term holiday letting of dwelling
1. This clause applies to land within zones R1, R3, B2, B4 and
SP3.
2. In this plan short term holiday letting of dwellings is a form
of tourist and visitor accommodation in an existing dwelling
that provides temporary or short term accommodation on a
commercial basis.
3. The consent authority, must before granting consent
under this clause to the carrying out of short term holiday
letting of dwellings be satisfied that the proposal will not
interfere with the amenity of the neighbourhood in any way,
including by noise or traffic generation.
4. The maximum number of bedrooms for development for
the purposes of short term holiday letting of dwellings is
five (5).
Q What option do you prefer – precinct or zoning?
Q Why do you prefer this option?
Q Do you agree with the locations that holiday letting
could occur in?
Q Should holiday letting extend to RU1, RU2, RU5 and R5
zones?
70-90 Station St, Mullumbimby NSW 2482
Phone: 02 6626 7000
Holiday Letting Discussion Paper
Potential DCP provisions for Option 1 and 2:
Amenity - The use of the dwelling for Holiday letting to not impact on the
residential amenity currently enjoyed by surrounding residents. Use to comply
with POEO Act 1997 and associated Noise Regulations.
Where to from here?
May
workshop
Discussion paper
Number of Bedrooms – up to 5 bedrooms
A Management Plan to be submitted with application nominating caretaker/
local manager who lives in the vicinity of the property. Plan to include details
how nuisance issues such as noise will be managed by the landlord and who to
contact in the first instance for a noise / nuisance complaint (ie landlord or real
estate agent should be the first respondent not Council or the Police)
May/July
Prepare draft Holiday
Letting Strategy and
Planning Proposal to
amend LEP
Approval Period – provision to limit initial approval (eg. 2 year period) to ensure
property managed effectively and there are minimal impacts on neighbours. At
end of period, consent can be sought for a longer timeframe.
August
Report draft Holiday
Letting Strategy to
Council for consideration
and release for public
exhibition and Planning
Proposal for Gateway
Determination
Waste – ensure garbage services and on-site treatment systems for sewage are
adequate for short term holiday letting of dwellings
Car parking - Requirements as per Chapter B4 of Byron Shire DCP 2014
Sept/Oct
Complaints and Fines – Council could issue a fine of $1500 for a breach of
Conditions of Consent arising out of complaints – this would be imposed on
the landlord. Landlords would need to manage short term tenants accordingly
to ensure the residential amenity of the neighbourhood is not detrimentally
impacted. Landlords may wish to take a bond from tenants to cover the cost of
such a fine.
Public exhibition of draft
Holiday Letting Strategy
and LEP amendment
Oct/Nov
Prepare public
submissions report
Nov/Dec
Report to Council
to consider public
submissions and
adoption of Holiday
Letting Strategy and
draft LEP. Making of the
draft LEP.
Fire Safety - Each bedroom to be fitted with hard wired smoke detector and
interconnected with lighting for the purposes of evacuation. Fire extinguisher to
be installed in the kitchen. Any outdoor barbeque to be gas or electric. Bushfire
evacuation plan required if in a bushfire prone area.
Q Do you agree with the max number of bedrooms?
Q. Should the controls limit the number of people staying in a house eg
two people per bedroom?
Q. What is a reasonable trial period for development consent?
Q What is a reasonable moratorium period for owners of holiday lets to
comply with the new provisions? Is 12 months an appropriate time
frame? (In Dobrohotoff V Bennic, the Landlord was given two months to
cease use for holiday letting)
What else
Consider developing a register that promotes compliant holiday lets.
Other uses of a dwelling
In developing the holiday letting controls it became apparent that other uses of a dwelling had more stringent controls. The following
will be reviewed in line with the development of the Holiday Letting Strategy:
Bed and Breakfast
Serviced Apartments
Couch surfing – ‘Air B&B’
Rural Farmstays
Need to review LEP controls to
ensure equity with Holiday Let to
allow up to 5 bedrooms
already permitted in medium
density zones eg Lawson
Street
Consider exempt
provisions to enable 1 bed
B& B’s as exempt
Examine LEP options and
negotiate with state government
review carparking requirements
excluded from B4 zone –
should it be included?
Bushfire prone land may
need to be excluded
s94 fees already removed
Ballina solution for tourist and
visitor accommodation in rural
areas
consider options for number of
cabins etc
Byron Shire Council
70-90 Station St, Mullumbimby NSW 2482
Phone: 02 6626 7000
www.byron.nsw.gov.au
Holiday Letting Strategy
Potential Precincts
Potential Precincts for Holiday Let Overlay Map
Under the EP&A Act 1979 Council has a role in ensuring the promotion and co-ordination of the orderly and economic use
and development of land. As such, as a guide, holiday homes are most appropriate in areas of high tourism amenity and close
proximity for ease of pedestrian and cycling access to tourist attractions such as the beach and town centre.
Brunswick Heads
South Golden/ New Brighton
Byron Shire Council
70-90 Station St, Mullumbimby NSW 2482
Phone: 02 6626 7000
Holiday Letting Discussion Paper
Byron Bay
Suffolk Park
Byron Shire Council
70-90 Station St, Mullumbimby NSW 2482
Phone: 02 6626 7000
Draft Byron Shire Short Term Holiday Strategy
#E2014/63820
Appendix B - Outcomes of 2014 Discussion paper workshop
(#E2014/35418, 11pgs)
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
Holiday Letting Discussion Paper Workshop Draft Outcomes
Discussion Paper Questions
Workshop 1 – Tuesday 27 May 2014
Workshop 2 – 24 June 2014
 Ancillary to primary use as a residential dwelling
 Open to all areas, with compliance provisions
for amenity etc
 Develop a Council register for owners to
register their property, consider registration fee,
incentives to register
 Complaints investigated
 Complying Certificate by Council or private
certifier with notification to neighbours (‘like’
mini DA)
 12mth trial for each owner
 Holiday letting industry position is that short
term holiday letting should be allowed in all
zones – no precincts
 Hinterland Collective - zones
Group 1: Exempt and Complying
Should exempt holiday let provisions
only be allowed in precincts (as
shown on the overlay map) or open
to all zones where a dwelling is
permissible?
Do you agree with the exempt and
complying models?
Do you agree with the prohibition of
large houses being holiday let?
 Control maximum number of people
Do you agree with the max number of  Control maximum number of people
bedrooms?
Should the controls limit the number
of people staying in a house eg two
people per bedroom?
# E2014/35418
 Yes, maximum 2 people per bedroom with no
more than 8 people for 4 or more bedrooms
 Holiday letting industry position is that there is
no time limit for exempt development and
supports exempt development
 Holiday letting industry plans to register all
properties with the proviso that they confirm
compliance to the Code of Conduct
 Hinterland Collective concerned about equity
issues between holiday lets and B&Bs/Guest
Houses and don’t support exempt development
 Hinterland collective proposes a register,
license/accreditation, council inspections and
fees paid to council
 Refer below
 Hinterland Collective – 5 bedrooms too many,
should be max 3 bedrooms with 6-8 people
 Holiday letting industry – cap 12 people (code of
conduct) 2 per bedroom
Holiday Letting Discussion Paper Workshop Draft Outcomes
Discussion Paper Questions
Workshop 1 – Tuesday 27 May 2014
Workshop 2 – 24 June 2014
Group 2: Option 1 Precinct & Option 2 Zoning
What option do you prefer – precinct
or zoning?
 Neither option generally
 Sth Golden Beach Elders
- Sth Golden Beach and Ocean Shores very
different
- Know what works
- Different in different locations
 Precincts too restrictive
 Festival impacts in north
 Need to consider outside of Byron as different
issues
 Management a problem – makes it difficult to
regulate
 Rural prefer zoning
 Zones – 4 votes
 Precinct – 2 votes
 Many undecided
 Potentially need to look at laissez-faire
 Precincts better to restrict area, though can be
arbitrary
 Zones higher up in assessment process
 Precinct or zones are neither fair or equitable
for all property owners
 HL Industries preference holiday letting legal in
both residential and rural dwellings
 HL Industry believes that it is a behavioural
issue and believe collaboration between council
and the industry is necessary
 Concern with proposed R1 zone as brings in
higher density issues
 Concern with cost of services due to holiday
letting
 Registration - requires tightening up rules and
regulations and information being available to
the community
 Rates option – different rate to residential and
commercial
 Secondary dwelling issues – will holiday letting
be allowable?
 60 day issue – serious concerns with one off
owners letting – must be local contact/agent –
best to have professional management
 Industry would like more consultation in the
detail
 Did not favour precinct or zone except for one
Brunswick rep
Why do you prefer this option?
 Why prefer either option, see above question
 Neither precinct nor zone supported due to
equity for all. All residents should have the
# E2014/35418
Holiday Letting Discussion Paper Workshop Draft Outcomes
Discussion Paper Questions
Do you agree with the locations that
holiday letting could occur in?
# E2014/35418
Workshop 1 – Tuesday 27 May 2014
 Sth Golden Beach
- many existing holiday lets outside of
suggested mapped locations
- area too small
- need to consider future implications
- festival impacts and dynamics mean this
area requires careful consideration
- see map for alternate area
 New Brighton
- suggested precinct is about right
- perhaps coastal zone needs to be limited for
holiday letting ie. whole coastal zone
currently mapped as precinct
 Brunswick Heads
- demand not necessarily for coastal zones –
most around town centre where amenity and
access to shops is sought. Need to refer to
settlement strategy for guidance on precinct
area
- see map for alternate area
 Byron Bay
- Belongil – high concentration of this
- Shirley St – mixed tourist use
- Reduce area (see map) especially around
area south of recreation grounds
 Suffolk Park
- High concentration of HL on beachside
Alcorn Street. Only 4.8% beyond this.
Suggest retain this and reduce as per map
Workshop 2 – 24 June 2014
opportunity to holiday let.
 No. There should be open boundaries ie
available wherever a dwelling is permitted.
Holiday Letting Discussion Paper Workshop Draft Outcomes
Discussion Paper Questions
Workshop 1 – Tuesday 27 May 2014
Workshop 2 – 24 June 2014
Should holiday letting extend to RU1,
RU2, RU5 and R5 zones?
 Rural prefer zoning as regulation and provide
opportunities
 RU2 and R5 – but not appropriate where
concentration of smaller R5 (eg Ewingsdale) not
compatible with rural amenity
 Bedroom # - maximum people may be better
criteria – possibly both ie. ratio of bedrooms/
people
 Trial period 1 year consider annual licence
Yes, should be permitted in RU1, RU2, RU5 and
R5 zones




1 year - 4 votes
6mths – 1 vote
Yearly licence
No trial period – 1 vote
 Not answered
What is a reasonable moratorium
period for owners of holiday lets to
comply with the new provisions - is
12 months an appropriate time
frame?




 Not answered
Yes, No, other and why

General Comments

12mths – 5 votes
18mths – 1 vote
6mths – 1vote
Don’t agree with holiday lets in 2(a) residential
area
Less if council compliance staff can manage in
a shorter timeframe - 2 votes
Consider options for existing holiday lets
outside of precincts to be able to continue eg.
onsite manager in self-contained separate
dwelling
Exempt - allow all school holiday periods
Council to get on board with compliance
Voting questions
What is a reasonable trial period for
development consent?
1 year, 2 years, >2 years, no trial
period


# E2014/35418
 Introduce a registration system rather than
planning controls
 How do you deal with the issue of holiday letting
reverting to permanent rental?
 Secondary dwelling should not be holiday let
Holiday Letting Discussion Paper Workshop Draft Outcomes
Discussion Paper Questions
# E2014/35418
Workshop 1 – Tuesday 27 May 2014
Workshop 2 – 24 June 2014
 Offensive noise – abatement orders
 Single point of contact for complaints so they
are registered
 Parking – need to clarify DCP controls
 HL Industry has serious concerns about
dwellings being exempt development if
occupied doe holiday letting less than 60 days
 The objectives of why we need a strategy
should be first step: Important economic activity;
controls to prevent neighbourhood impact
 Require a definition ie what is holiday let
 Planning does not deliver solution - it is a
behavioural issue
 HL industry objects to planning controls as a
tool
Holiday Letting Discussion Paper Workshop Draft Outcomes
27 May 2014 Holiday Letting Discussion
Paper workshop participants
24 June 2014 Holiday Letting Discussion
Paper workshop participants

Doug Luke, Victims of Holiday Letting


Chris Pratt, Victims of Holiday Letting
John Gudgeon, Holiday Letting
Organisation

Jen Shiels, Victims of Holiday Letting

Sam Pedlow, Holiday Letting
Organisation

David Wallace, Victims of Holiday
Letting

Colin Hussey

Don Maughan, Suffolk Park Progress
Association

Patricia Warren, Brunswick Heads
Progress Association

Francesca Esposito-Rose, Byron
Hinterland Collective

John Dunn, Brunswick Heads Progress
Association

Robert Eldridge,Community
Representative

Russell Siwicki, Real Estate Industry

Grant Hawkins, Real Estate Industry

Yvonne Jessup, Community
Representative

John West, Australian Residents
Accommodation Managers Association

Sandy Loyall, Community
Representative

Francesca Esposito-Rose, Byron
Hinterland Collective

Angela Dunlop, Sth Golden Beach
Community Association

Robert Rosen, Brunswick Heads
Chamber of Commerce

Kathy Norley, Sth Golden Beach
Community Association

Sheena Sorrell, Elders, New Brighton


Cr Simon Richardson
Ian Clements, Enough is Enough


Cr Duncan Dey
Peter Gough, Enough is Enough


Cr Alan Hunter
Robert Rosen, HLO, real estate and
ARAMA representative

Cr Paul Spooner

Sheena Sorrell, Elders, New Brighton

Ray Darney, Byron Shire Council

Will Sorrell, Elders, New Brighton

Sharyn French, Byron Shire Council

Rosetta Smiriglia, Elders, New Brighton

Joanne McMurtry, Byron Shire Council

Cr Diane Woods

Ken Gainger, Byron Shire Council

Cr Chris Cubis

Cr Basil Cameron

Cr Duncan Dey

Cr Alan Hunter

Cr Paul Spooner

Ray Darney, Byron Shire Council

Sharyn French, Byron Shire Council

Chris Larkin, Byron Shire Council

Ken Gainger, Byron Shire Council
# E2014/35418
E2014/35418
Holiday Letting Discussion Paper Workshop Draft Outcomes
Maps from 27 May Workshop
# E2014/35418
E2014/35418
Holiday Letting Discussion Paper Workshop Draft Outcomes
# E2014/35418
E2014/35418
Holiday Letting Discussion Paper Workshop Draft Outcomes
# E2014/35418
E2014/35418
Holiday Letting Discussion Paper Workshop Draft Outcomes
# E2014/35418
E2014/35418
Holiday Letting Discussion Paper Workshop Draft Outcomes
# E2014/35418
Draft Byron Shire Short Term Holiday Strategy
#E2014/63820
Appendix C – Clause 3.1 Exempt Development
Extract from Byron LEP 2014 as at 7 October 2014
3.1 Exempt development
Under section 76 of the Act, exempt development may be carried out without the need for
development consent under Part 4 of the Act or for assessment under Part 5 of the Act.
The section states that exempt development:
(a) must be of minimal environmental impact, and
(b) cannot be carried out in critical habitat of an endangered species, population or
ecological community (identified under the Threatened Species Conservation Act
1995 or the Fisheries Management Act 1994), and
(c) cannot be carried out in a wilderness area (identified under the Wilderness Act
1987).
(1) The objective of this clause is to identify development of minimal environmental
impact as exempt development.
(2) Development specified in Schedule 2 that meets the standards for the
development contained in that Schedule and that complies with the requirements of
this Part is exempt development.
(3) To be exempt development, the development:
(a) must meet the relevant deemed-to-satisfy provisions of the Building Code
of Australia or, if there are no such relevant provisions, must be structurally
adequate, and
(b) must not, if it relates to an existing building, cause the building to
contravene the Building Code of Australia, and
(c) must not be designated development, and
(d) must not be carried out on land that comprises, or on which there is, an
item that is listed on the State Heritage Register under the Heritage Act 1977
or that is subject to an interim heritage order under the Heritage Act 1977.
(4) Development that relates to an existing building that is classified under the
Building Code of Australia as class 1b or class 2-9 is exempt development only if:
(a) the building has a current fire safety certificate or fire safety statement, or
(b) no fire safety measures are currently implemented, required or proposed
for the building.
(5) To be exempt development, the development must:
(a) be installed in accordance with the manufacturer's specifications, if
applicable, and
(b) not involve the removal or pruning of a tree or other vegetation that
requires a permit or development consent for removal or pruning, unless that
removal or pruning is undertaken in accordance with a permit or development
consent.
A permit for the removal or pruning of a tree or other vegetation may be granted
under this Plan. A development consent for the removal of native vegetation may be
granted where relevant under the Native Vegetation Act 2003.
(6) A heading to an item in Schedule 2 is part of that Schedule.
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
Draft Byron Shire Short Term Holiday Strategy
#E2014/63820
Appendix D – Clause 3.2 Complying Development
Extract from Byron LEP 2014 as at 7 October 2014
3.2 Complying development
(1) The objective of this clause is to identify development as complying development.
(2) Development specified in Part 1 of Schedule 3 that is carried out in compliance
with:
(a) the development standards specified in relation to that development, and
(b) the requirements of this Part,
is complying development. See also clause 5.8 (3) which provides that the conversion
of fire alarms is complying development in certain circumstances.
(3) To be complying development, the development must:
(a) be permissible, with development consent, in the zone in which it is
carried out, and
(b) meet the relevant deemed-to-satisfy provisions of the Building Code of
Australia, and
(c) have an approval, if required by the Local Government Act 1993, from the
Council for an on-site effluent disposal system if the development is
undertaken on unsewered land.
(4) A complying development certificate for development specified in Part 1 of
Schedule 3 is subject to the conditions (if any) set out or referred to in Part 2 of that
Schedule.
(5) A heading to an item in Schedule 3 is part of that Schedule.
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
Draft Byron Shire Short Term Holiday Strategy
#E2014/63820
Appendix E – Clause 3.3 Environmentally Sensitive Areas
excluded
Extract from Byron LEP 2014 as at 7 October 2014
3.3 Environmentally sensitive areas excluded
(1) Exempt or complying development must not be carried out on any
environmentally sensitive area for exempt or complying development.
(2) For the purposes of this clause:"environmentally sensitive area for exempt or
complying development" means any of the following:
(a) the coastal waters of the State,
(b) a coastal lake,
(c) land to which State Environmental Planning Policy No 14--Coastal
Wetlands or State Environmental Planning Policy No 26--Littoral Rainforests
applies,
(d) land reserved as an aquatic reserve under the Fisheries Management Act
1994 or as a marine park under the Marine Parks Act 1997,
(e) land within a wetland of international significance declared under the
Ramsar Convention on Wetlands or within a World heritage area declared
under the World Heritage Convention,
(f) land within 100 metres of land to which paragraph (c), (d) or (e) applies,
(g) land identified in this or any other environmental planning instrument as
being of high Aboriginal cultural significance or high biodiversity
significance,
(h) land reserved under the National Parks and Wildlife Act 1974 or land
acquired under Part 11 of that Act,
(i) land reserved or dedicated under the Crown Lands Act 1989 for the
preservation of flora, fauna, geological formations or for other environmental
protection purposes,
(j) land identified as being critical habitat under the Threatened Species
Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994.
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
Draft Byron Shire Short Term Holiday Strategy
Appendix F - Dobrohotoff v Bennic
Extract from http://www.lgnsw.org.au/files/LE_CourtReporter_Issue_4.pdf
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
#E2014/63820
Draft Byron Shire Short Term Holiday Strategy
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
#E2014/63820
Draft Byron Shire Short Term Holiday Strategy
#E2014/63820
Appendix G - Real Estate Institute of NSW Holiday Rental
Code of Conduct
(#E2014/67481, 21pgs)
http://www.reinsw.com.au/default.aspx?ArticleID=10373
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
HOLIDAY RENTAL
CODE OF CONDUCT
OVERVIEW & ADMINISTRATIVE
FRAMEWORK
VERSION: 1.1 March 2013
Page 1 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
INTRODUCTION
Holiday rental is a long established practice in Australia and serves a range of purposes. The
short term rental of houses and apartments to holiday makers, workers and students makes an
important contribution to the local as well as the broader State and national economy. Holiday
rental is the term used to describe the rental of a dwelling for short periods, most commonly for
weekends or a few weeks for holidays. Short term rental is also used by workers, students and
the like who require residential accommodation for a limited period of time.
The use of a dwelling for the provision of holiday accommodation can be considered to be
ancillary to the main use of the residential property. A dwelling includes a room or suite of
rooms occupied or used as a separate domicile (including a house, villa, town house, apartment
or granny flat) whether for permanent or holiday accommodation.
Holiday rental of a residential property is typically through a licence agreement rather than a
tenancy agreement under the relevant state and territory residential tenancy legislation.
Holiday rental of dwellings can make a positive sustainable contribution to local tourism and
communities, and should be managed so as to minimise any adverse social or environmental
impacts. However in some areas, the increased use of dwellings for holiday rental
accommodation has led to some impacts on amenity such as in relation to noise and car
parking issues.
This Code of Conduct has been developed to provide a self-regulatory approach in the
management of holiday rental. This approach has been used in some areas and has been
found to be successful in managing amenity impacts associated with holiday rental. This Code
of Conduct applies to dwelling properties that are rented for the purposes of holiday
accommodation. This Code may be applied to short term rental for other purposes in due
course.
Page 2 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
This self-regulatory approach to Holiday Rental incorporates four components:
Part 1 This part outlines obligations on Participating Organisations to cooperate and combine
efforts to achieve the Objectives of the Code through appropriate administration and
enforcement of the Code.
Part 2 This part outlines obligations on Managers of Holiday Rental Properties.
Part 3 This part outlines obligations on Owners and Guests required to implement the Code
through the Terms and Conditions of the contract between the Owner and Guests.
Part 4 This part provides a framework for House Rules for Visitors and Guests at a Property to
ensure that the amenity of neighbouring properties is not adversely affected.
Page 3 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
Holiday Rental Code of Conduct
OBJECTIVES OF THIS CODE
The objectives of this Code of Conduct are:
a)
To establish acceptable standards of behaviour for Holiday Rental Guests and Visitors to
minimise any adverse social or environmental impacts;
b)
To assist Owners and Managers of Holiday Rental accommodation to meet the needs of all
stakeholders including Guests, neighbours, local communities, local councils and
government authorities; and
c)
To inform the community of the standards of conduct expected from Holiday Rental Owners,
Managers, Guests and Visitors so as to effectively minimise amenity impacts.
Government authorities and private sector bodies are encouraged to endorse this Code of
Conduct and to work cooperatively with Participating Organisations to achieve its Objectives.
Page 4 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
DEFINITIONS USED IN THIS CODE
•
Holiday Rental means rental of Property for holiday purposes within the maximum term
permitted for rental without a residential tenancy agreement under state and territory
residential tenancy legislation.
•
Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as
to be capable of being occupied or used as a separate domicile.
•
Guest means a person who stays overnight in the Property during the term of the
occupancy.
•
Manager means the Owner or another person appointed by the Owner (such as a real
estate agent), who is responsible for renting the Property.
•
Noise means any sound which is offensive to occupiers of neighbouring properties.
•
Owner means the person or entity who owns the Property. It includes the lessee of a
Property who sublets or licences it to others for Holiday Rental.
•
Participating Organisations comprise those organisations that endorse and agree to
implement this Code of Conduct.
•
Property means Dwellings and residential premises including houses, dual occupancies,
villas, townhouses, apartments, units, secondary dwellings, cabins and the like generally
with a maximum of 6 bedrooms unless the relevant local council permits holiday rental in
properties with more than 6 bedrooms.
•
Visitor means a person a Guest invites or permits to visit the Property during the term of
the occupancy who does not stay overnight.
Page 5 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
Part 1. Holiday Rental – Obligations of Participating Organisations
This Part outlines the arrangements and the role and responsibilities of
Participating Organisations for the promotion, implementation,
administration, monitoring and enforcement of this Code of Conduct.
1.1 Guiding Principles
This Code of Conduct is for use by Participating Organisations to outline to Holiday Rental
Managers, Owners Guests and Visitors what their responsibilities are in order to ensure that the
amenity of the Property and neighbours is maintained.
a)
This Code of Conduct applies to the Holiday Rental of Property owned or managed by
members of Participating Organisations;
b)
Managers (including owners and agents) are encouraged to join Participating Organisations
and may become Participating Organisations;
c)
Participating Organisations consider that compliance with this Code of Conduct is required
to achieve the Objectives and undertake to enforce this Code;
d)
Participating Organisations signify their endorsement and agreement to this Code of
Conduct by signing and lodging a copy of it with the Code Administration Committee;
e)
Participating Organisations may withdraw their endorsement and agreement to this Code of
Conduct at any time by lodging a written notice with the Code Administration Committee;
and
f)
Participating Organisations will implement and promote this Code of Conduct and make a
copy of it available to the public from their website.
g)
The Guiding Principles for Guests and Visitors in the Holiday Rental of a Property under
this Code of Conduct are:
•
•
•
•
This is a home;
Treat it as your own;
Respect your neighbours;
Leave it as you find it.
Page 6 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
1.2 Implementation of the Code
This Code of Conduct will be implemented through the following mechanisms:
1.2.1 Through Participating Organisations:
a) Participating Organisations must require an undertaking from Managers to comply with the
Code of Conduct as a condition of membership of their organisation or of listing their
Property as the case may be; and
b) Where a Participating Organisation is a Manager they must require an undertaking from
Owners as a condition of managing their Property to endorse and comply with relevant
provisions in the Code and agree to this Code so far as the Manager’s own Property is
concerned.
1.2.2 Through Owners and Managers:
a) The Terms and Conditions upon which the Property is offered, booked and occupied for
Holiday Rental must meet the standards in Part 3 of this Code and be incorporated into the
contract between the Owner of the Property and Guests;
b) House Rules including the fundamental obligations of Guests and Visitors on Noise and
Residential Amenity under the Terms and Conditions must meet the standards in Part 4 and
be displayed at all times in a prominent position in the Property to remind Guests of their
key contractual obligations and to inform all Guests and Visitors of the conditions upon
which they are permitted to enter and remain on the Property; and
c) A full printed copy of this Code of Conduct, the Terms and Conditions, the House Rules and
any By Laws relating to the strata or community title must be provided in a Guest & Visitor
Information Folder within the Property in a location which is prominent and easily accessible
to Guests, Visitors and persons authorised by the Manager or law to inspect and enforce
compliance.
Page 7 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
1.3 Sanctions
1.3.1 Through Participating Organisations
Each Participating Organisation is responsible for dealing with instances where Managers are
not complying with this Code of Conduct.
a) Participating Organisations may impose sanctions upon Managers for non compliance with
this Code of Conduct;
b) Such sanctions will be imposed under the terms of their membership or listing arrangements
with Managers;
c) If so directed by the Code Administration Committee, a Participating Organisation must
impose the sanctions;
d) A Manager who disputes a sanction imposed upon it by a Participating Organisation under
this Code may appeal to the Code Administration Committee and in that case the Code
Administration Committee will review the sanction and direct the Participating Organisation
on what it considers to be the appropriate sanction in all the circumstances; and
e) The sanctions should reflect the nature, seriousness and frequency of the breach and
include in increasing severity:
i.
Issuing a censure or warning to the Manager;
ii.
Requesting the Manager to rectify the harm done or compensate for the damage
caused by the breach;
iii.
Requesting the Manager to take remedial action to ensure the breach does not
reoccur. Remedial action may include more restrictive practices, for example
limiting the number of Guests permitted to stay at a Property to a lesser number
or restricting the number of Visitors and the hours when Visitors can be on the
Property ; and
iv.
1.3.2
Expulsion from membership or delisting of the Property as the case may be.
Through the Code Administration Committee
The Code Administration Committee is responsible for dealing with instances where
Participating Organisations are not complying with this Code of Conduct.
Page 8 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
a) The Code Administration Committee may impose sanctions upon Participating
Organisations for non-compliance with the obligations of a Participating Organisation under
this Code of Conduct.
b) If a Participating Organisation disputes a sanction imposed upon it by the Code
Administration Committee under this Code the dispute shall be submitted to arbitration in
accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for
the Conduct of Commercial Arbitrations. Unless the Code Administration Committee and
the Participating Organisation agree upon an arbitrator, either of them may request a
nomination from either the President OR the Chapter Chairman of the Chapter where the
dispute arises.
c) The sanctions should reflect the nature, seriousness and frequency of the breach and
include in increasing severity:
i.
Issuing a censure or warning to the Participating Organisation;
ii.
Requesting the Participating Organisation to rectify the harm done or
compensate for the damage caused by the breach;
iii.
Requesting the Participating Organisation to take remedial action to ensure the
breach does not reoccur; and
iv.
Cancelling the registration of the Participating Organisation under this Code of
Conduct.
1.4 Code Administration
1.4.1 Code Administration Committee
This Code of Conduct will be administered by the Code Administration Committee (“CAC”).
a) The CAC will consist of representatives of Participating Organisations or key stakeholders in
the Holiday Rental industry.
b) The initial CAC will comprise a representative from each of the following:
i.
Stayz or its nominee;
ii.
HLO Byron;
iii.
REINSW;
iv.
A consumer group or tourism body; and
v.
A government or statutory planning body.
Page 9 of 21
Holiday Rental Code of Conduct – Version: 1.1 (MAR 2013)
c) Members of the CAC may be appointed and dismissed by decision of the CAC.
d) The CAC may invite other relevant authorities to act as observers or advisors when
appropriate, for example the Australian Competition and Consumer Commission and State
and Territory Government agencies such as Tourism, Planning and Infrastructure and Fair
Trading Departments, law enforcement and the Local Government and Shires Associations.
e) The chairman and secretary of the CAC will be appointed by decision of the CAC.
f)
The CAC will be industry-funded.
g) Unless otherwise agreed meetings of the CAC will be held in Sydney, NSW and members
from other cities or states may participate by telephone or video conferencing.
h) Meetings of the CAC require a quorum of a majority of members present or participating by
telephone or video conferencing.
i) Decisions of the CAC will be made according to the following:
i.
CAC decisions to amend this Code of Conduct or changes to the membership of
the CAC require a majority of at least 66%;
1.4.2
ii.
All other CAC decisions require a simple majority; and
iii.
In the event of a deadlock the Chairman shall have an additional casting vote.
The role of the CAC
The role of the CAC will be to:
a) Publicise and promote this Code of Conduct;
b) Maintain a register of Participating Organisations, receive and process signed copies of this
Code of Conduct and any notice or decision that any signatory ceases to be a Participating
Organisation;
c) Monitor and review the operation of this Code of Conduct;
d) Give instructions to Participating Organisations and hear and determine appeals from
Managers concerning sanctions under Clause 1.3.1 of this Code of Conduct;
e) Impose sanctions upon Participating Organisations under clause 1.3.2 of this Code of
Conduct;
f) Consult with Participating Organisations and key stakeholders from the Holiday Rental
industry (where appropriate) on proposed amendments to this Code of Conduct;
g) Determine necessary amendments to this Code of Conduct;
h) Provide for the adequate financing of Code of Conduct administration expenses;
i)
Produce an annual report on this Code of Conduct and its administration;
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j)
Report on the operation and effectiveness of this Code of Conduct as required to such state
and territory government Tourism, Fair Trading and Planning and Infrastructure authorities
as have endorsed this Code of Conduct;
k) Report to the Participating Organisations and key stakeholders from the Holiday Rental
industry on the operation and effectiveness of this Code of Conduct; and
l)
Organise an independent review of this Code of Conduct once every three years.
1.5 Monitoring Outcomes of the Use of this Code
The CAC will monitor the implementation of this Code.
1.5.1
Monitoring criteria
The criteria which will be used to monitor and measure the effectiveness of this Code of
Conduct include:
a) Number of Participating Organisations;
b) Number of Owners and Managers of a Property represented by Participating Organisations;
c) Number of endorsing government authorities and private sector bodies;
d) Number of relevant complaints (bearing in mind that implementation of this Code of Conduct
will provide and promote mechanisms for lodging complaints) received by:
i.
Participating Organisations;
ii.
Fair Trading authorities that have endorsed this Code of Conduct (so far as data
is readily available);
iii.
Local councils (so far as data is readily available); and
iv.
State government planning authorities (so far as data is readily available.)
e) Success rate in resolving disputes and complaints without recourse to litigation (so far as
data is readily available); and
f) Instances of acceptance of this Code of Conduct as a practical self regulatory alternative to
government regulation.
1.5.2
Outcomes from the monitoring
a) This Code of Conduct is designed to be a living document that will evolve based on
monitoring outcomes and stakeholder feedback.
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b) The CAC will be responsible for making necessary changes to better achieve the objectives
of this Code of Conduct.
1.6 Compliance with Australian Competition & Consumer Act
This Code of Conduct is intended to comply with the Australian Competition and Consumer Act
2010 (the ‘Act’) and any term or requirement of the Code including Parts 1, 2, 3 and 4 which
conflicts with the Act shall be read and be enforceable as if it complies with the Act.
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HOLIDAY RENTAL CODE OF CONDUCT
OBLIGATIONS & IMPLEMENTATION GUIDE FOR MANAGERS
This Part outlines the role and responsibilities of Managers, including
standards, practices and procedures for implementation of this Code of
Conduct.
2.1 Role and Responsibilities of Managers
a) Managers are required to comply with this Code of Conduct as a condition of membership of
a Participating Organisation or of listing their Property with a Participating Organisation as
the case may be.
b) Managers must also comply with any request made by a Participating Organisation under
the Sanction provisions of this Code of Conduct.
c) Managers must use their best endeavours to ensure that Property under their management
used for Holiday Rental complies with this Code of Conduct generally including in particular
the standards, practices and procedures under this Part.
d) Managers must outline to Guests (and Visitors) the consequences of not complying with any
Terms and Conditions.
e) Managers are to provide information to neighbouring properties on the relevant authority to
contact in the event of a contravention of the Terms and Conditions. This can include the
provision of a telephone number to contact in this event.
2.2 Property Management generally
2.2.1
Managers should:
a) Act with integrity, professionalism, courtesy and consideration when dealing with Guests,
neighbours, Owners corporations and other community stakeholders; and
b) Cooperate with other stakeholders including industry associations, tourism bodies, local
councils and other government authorities to enhance the image, standards and contribution
of Holiday Rental to the economy.
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2.2.2
The Property must not be offered, described, or advertised:
a) In a false or misleading manner;
b) For a purpose inconsistent with this Code of Conduct; or
c) For more than the maximum number of Guests or Visitors determined in accordance with
this Code of Conduct or in any relevant environmental planning instrument.
2.2.3
The Property offered must:
a) Be offered in a clean, safe and habitable state of repair; and
b) Comply with relevant planning, building and fire safety and health regulations.
2.2.4
Managers should:
a) Provide general, after hours and emergency telephone numbers to Guests and neighbours;
and
b) Have a local representative to manage Guests and Property issues.
2.3 Insurance
Owners and Managers should hold appropriate insurance, including comprehensive
landlords’ and public liability insurance (as appropriate.)
2.4 Complaints handling
2.4.1 Managers must:
a) Have a policy, setting out how to deal with disputes or complaints;
b) Retain a log of related communication and actions taken;
c) Respond to complaints professionally and take effective action to stop any problems; and
d) Cooperate and participate in any complaint handling, response or resolution system
implemented by their relevant Participating Organisation or local council.
2.4.2 Managers must also make and maintain a record of the following particulars of
each complaint:
a) Date and time received;
b) Name and designation (e.g. Guest, neighbour, council, police etc) of complainant(c)
contact details of complainant;
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c) Nature of complaint;
d) Action taken (by whom and when); and
e) Outcome and/or further action required (e.g. community consultation, meet with council,
meet with local police, review management systems or issue resolved.)
2.4.3
Participating Organisations and Managers should encourage and facilitate
complaint handling and dispute resolution through the following stages:
a) Initially by the Manager;
b) If not resolved in (a) then through the relevant Participating Organisation; and
c) If not resolved in (b) then through the relevant state or territory Fair Trading or other
authority.
2.5 Consequences of not meeting this Code of Conduct
Where required to ensure compliance, Managers must make Owners, Guests and Visitors
aware that:
a) Depending on the Terms and Conditions of the contract between the Guest and Owner,
the consequences of not meeting the requirements of this Code of Conduct can include
enforcement action from:
i.
the Owner and its agents including Manager and security services;
ii.
local councils or; and
iii.
in some instances, the Police.
b) Enforcement action is subject to the Australian Consumer Law and other relevant
legislation.
c) Such enforcement action could result in termination of permission to occupy the Property,
eviction, loss of rental paid, deductions from security deposits and extra charges.
d) It is therefore important for all Guests to be aware of their obligations and of their
responsibilities to make any Visitors to the Property aware of these requirements to
maintain the amenity of the Property and its neighbourhood.
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2.6 Standards for Terms and Conditions (Part 3) and House Rules (Part 4)
2.6.1 Approach: prescribed standards not solutions
a) It is acknowledged that Holiday Rental Properties, Managers. Guests, Visitors,
neighbourhoods, systems and other circumstances for holiday rental around Australia are
diverse and a prescriptive “one-size-fits-all” approach is unlikely to achieve the Objectives;
b) It is also acknowledged that the industry is dynamic and that alternative, innovative and
technological solutions which achieve the Objectives should be encouraged and not stifled
by undue prescription;
c) Accordingly, in the performance standards set out in Parts 3 and 4, the focus is on the
required outcome to be achieved rather than on prescription of rigid “one-size-fits-all”
solutions.
2.6.2 Deemed to satisfy solutions
a) To provide guidance and assistance to the industry, the Code does provide in Attachments
A and B so far as is practical “deemed to satisfy” solutions to compliance with the
performance standards in Part 3 and Part 4 respectively;
b) The benefit if adopting a “deemed to satisfy” solution to a performance standard is that, in
the event of a complaint about a Property to a Participating Organisation or the CAC which
relates to a performance standard, there is no onus on the Owner to prove that the
relevant Terms and Conditions or House Rules used for the Property meet the relevant
performance standard.
2.6.3 Equivalent solutions
a) Managers are free to adapt or adopt different provisions in their Terms and Conditions and
House Rules from those set out in Attachments A and B respectively which better suit their
own circumstances, provided they are “equivalent solutions”.
b) Equivalent solutions are Terms and Conditions and House Rules for a Property that are
designed to achieve the required performance standards by provisions which are different
from the deemed solutions.
c) In the event of a complaint about a Property to a Participating Organisation or the CAC
which relates to a performance standard where the relevant deemed solution has not been
used, the onus is on the Manager to prove that the performance of the provisions used is
at least equivalent to that of the deemed to satisfy solution.
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2.6.4 Equivalent solutions
Failure to adopt a deemed solution or equivalent solution to each of the performance
standards in Part 3 and Part 4 is a breach of this Code of Conduct.
2.7 Terms, Conditions and House Rules
2.7.1
Managers must ensure that:
a) The Terms and Conditions upon which the Property is offered, booked and occupied for
Holiday Rental must meet the standards specified in Part 3.
b) These Terms and Conditions must be incorporated into the contract between the Owner
and the Guest.
2.7.2
Managers must:
a) Provide and have displayed prominently in the Property, the House Rules;
b) Provide a Guest & Visitor Information Folder containing other information including a copy of
this Code of Conduct and information promoting good neighbourly behaviour;
c) The House Rules upon which Guests and Visitors are permitted to enter and remain upon
the Property must meet the standards specified in Part 4; and
d) The Terms and Conditions and House Rules must not offend the unfair contract terms and
other provisions of the Australian Consumer Law.
2.8 Deemed to Satisfy Provisions
Part 3)
c) Set out the original Terms and Conditions as a “deemed to satisfy” solution
Part 4)
d) Set out the original House Rules as a “deemed to satisfy” solution
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Part 3) Terms and Conditions between Owners and Guests
The Terms and Conditions upon which a Property is offered, booked and
occupied for Holiday Rental under the contract between the Owner and
Guest consistent with the requirements of the Holiday Rental Code of
Conduct.
These are the Performance Standards for the Terms and Conditions of the
Contract between the Owner and the Guest.
3.1 Formalities:
The Terms and Conditions:
a) Must be in writing;
b) May be in electronic, printed or other legally compliant form;
c) Must include the information and cover the matters in Part 3 of this Code of Conduct;
d) May incorporate information by reference including Booking Conditions, Occupancy
Agreement, House Rules, By Laws and information made available to the Guest from web
sites; and
e) May cover such other matters generally required in relation to Holiday Rental of the
Property and any special conditions provided they are not inconsistent with this Code of
Conduct including in particular this Part 3.
3.2 General Content
a) The Terms and Conditions must include:
i. the address and description sufficient to identify the particular Property;
ii. Guest’s name, usual residential address, email and phone number(s);
iii. dates of occupancy and check-in/check-out times;
iv. total rental payable and any other charges;
v. amount and timing for payment of deposit and balance of moneys due;
vi. provisions on variation, cancellation and forfeiture or refund of moneys paid; and
vii. contact details for the Manager or their nominated representative.
b) The Terms and Conditions must not offend the unfair contract terms and other provisions of
the Australian Consumer Law.
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3.3 Licence not a tenancy
The Terms and Conditions must include:
a) Guests are granted a limited permission to occupy the Property for holiday purposes;
b) This is not a residential tenancy agreement under the residential tenancy legislation; and
c) Failure to comply with the Guest's obligations in the Terms and Conditions may result in
termination of permission to occupy the Property and eviction.
3.4 Security Deposits or Bonds
Make effective and fair use of security deposits or bonds to procure compliance.
3.5 Number of Guests and Visitors
a) The maximum number of Guests permitted at a Property must not exceed a maximum of 2
adults per bedroom; and
b) The number of Visitors permitted at a Property must not be such as may conflict with
residential amenity, House Rules and more generally the Holiday Rental Code of Conduct.
3.6 Noise and Residential Amenity
Prohibit offensive noise and antisocial behaviour and enable the Manager to exercise all legal
rights and remedies to promptly deal with any breach.
3.7 Functions and parties
a) Properties located in residential areas must not host commercial catering or functions unless
they have local council permission to do so.
b) So called "party houses" conflict with residential amenity, are damaging to the Holiday
Rental industry and are not permitted.
c) Any gathering, celebration or entertainment permitted at a Property must not conflict with
residential amenity and must comply with all the other requirements of this Code of Conduct
including the Terms and Conditions (Part 3) and House Rules (Part 4) and any other
relevant planning approvals.
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3.8 Access and Parking
Managers must provide information to Guests prior to arrival regarding access or parking
restrictions to ensure ease of access with minimum disturbance to other residents or
neighbouring properties.
3.9 Recycling and Garbage
Managers must:
a) Inform Guests of the garbage disposal or recycling usual practices at the Property
including:
i.
the allocated bins and how excess rubbish should be managed and not left in
public or common areas;
ii.
details of local council garbage and recycling collection days; and
iii.
any special requirements relating to the disposal of garbage or waste minimisation.
b) Make arrangements for the removal of any excess garbage left by Guests and Visitors.
3.10 Complaints and dispute resolution procedure
Provide adequate information on complaints handling and dispute resolution.
3.11 Consequences of not meeting the Terms and Conditions
Clearly set out the consequences of not meeting terms and Conditions and enable the
Manager to exercise all legal rights and remedies to promptly deal with any breach.
[Rationale: Heading should accurately reflect the content of the Part and how it works at law]
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PART 4) HOLIDAY RENTAL CODE OF CONDUCT
House Rules for Guests and Visitors
Holiday rentals provide a unique tourism experience: consider this your
home, treat it as your own, respect your neighbours and leave it as you
find it. These House Rules are provided at the Property to ensure that
Guests and Visitors know and comply with the specific Rules governing
their permission to enter and occupy the Property.
4.9 Deck and balcony areas
4.1 General requirements
Appropriate rules are specified
House Rules are binding on Guests and
Visitors and any issues must be promptly
reported to the Manager
4.10 Smoking
4.2 Noise and Residential amenity
Restrictions are specified to the property
Offensive noise and anti-social behaviour is
prohibited
4.11 Pets
4.3 Visitors
Guests are responsible for Visitors
Restrictions are specified to the property
4.12 BBQ
4.4 Gatherings or functions
Arrangements are specified
Parties and non compliant functions or
gatherings are prohibited
4.13 Damages and breakages
4.5 Parking
Damages and breakages must be reported
to the Manager
Parking regulations and requirements are
specified clearly
4.14 On departure arrangements
4.6 Garbage and recycling
Arrangements for keys, security,
Garbage storage and disposal requirements
are specified clearly
dishwashing, rubbish, etc are specified
4.15 Emergency Contact
4.7 Security
Emergency contact name and telephone
Security arrangements are specified clearly
4.8 Swimming pool/spa (if applicable)
Hours of use and safety measures are
specified
numbers are provided
4.16 Compliance
Consequences of non-compliance are
specified including termination and eviction
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Appendix H – Example Information Sheet
Short term Holiday Accommodation - Clarifications
A holiday home is any dwelling house that is rented to tourists and visitors for less
than 90 days at a time.
Only those holiday homes that charge rent need to comply with Councils planning
controls.
Holiday homes which are for personal and family use do not require approval.
Dwellings let long term under the Residential Tenancies Act 2010, are not holiday
homes.
If you want to operate a holiday home, from 1 up to 90 days (outside the Australian
school holiday periods) you will need approval to operate and be registered with
Council.
If you operate a holiday home only during the Australian school holiday periods and
for no more than 90 days in anyone year, you will be required to register the property
with Council.
Existing holiday homes have one year from the start of the new planning controls to
comply.
It will be an offence to operate a holiday home without a registration and or approval.
Fines may apply.
There are three forms of development holiday homes can operate under:
1. Exempt
2. Complying
3. Development application
Exempt development is for holiday homes that are only available for rent in
Australian School Holiday periods, for a total of less than 90 days in any calendar
year. To be exempt development a holiday home must meet all the exempt
development provisions. If it cannot meet all the provisions then it should be
assessed against the next form of development ie. complying and so on.
Complying development is for up to 3 bedrooms and is rented for less than 90 days
at a time in any calendar year and must meet the additional provisions stated under
the clause.
A Development application is required for holiday homes that cannot meet the
complying development provisions or are 4 or more bedrooms and are rented for less
than 90 days at a time in any calendar year.
Before operating, all holiday homes must be registered and registration is to be kept
up to date.
Owners of holiday homes will be required to nominate a Manager who will be
responsible for day to day management. Owners can nominate themselves as the
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Manager or a real estate agent or other person, but any Manager must be locally
available when the holiday home is operating.
A sign is to be placed on the front gate, letterbox or some other location which can
clearly be seen from the public domain (eg footpath) advising the public of the land
owners or property managers details including telephone number to enable
complaints to be readily made and wording to advise that the property is ‘Registered
with Byron Shire Council’.
Two substantiated complaints of a serious nature impacting on neighbouring
properties could result in registration and or development consent not being
approved.
Need help?
If you have any enquires please talk to a Council planner on 02 6626 7000
Draft Byron Shire Short Term Holiday Accommodation Strategy (#E2014/72069)