Agents decide to take on Byron council
By MEGAN KINNINMENT
A GROUP of real estate agents and wealthy property owners are declaring war on Byron Shire Council.
Agents managing 400 holiday homes say the plan by Byron mayor Jan Barham to restrict holiday letting to two months a year in 2A residential zones will be challenged in court.
Real estate agent Tony Farrell said: "There are landlords who have more money than the council itself. It's going to get messy."
The plan, designed to regulate the industry after complaints about noise and garbage from partying holidaymakers, has infuriated agents and their clients.
However the agents themselves face another challenge, with claims they have breached the code of conduct governing their licences, under the Stock and Business Agents Regulation 2003 through the NSW Office of Fair Trading, by promoting the unlawful use of homes.
Breaches can result in an agent being cautioned, fined, suspended or licence cancellation.
Byron Bay First National principal Chris Hanley refused to comment on the licence issue.
However, he said he had been inundated with calls about the crackdown on illegal holiday lettings.
"The owners are fearful and scared, and completely in the dark about the rationale behind this decision," he said.
Mr Farrell, managing director of LJ Hooker Byron Bay, predicted the council would end up in an expensive legal wrangle over the ban.
"It's been going on for 40 or 50 years. Now all of a sudden it's illegal?" he said.
"We manage 60 properties, and these owners are not going to take this lying down.
"Some of these property owners make well over $100,000 a year from their properties.
"There are landlords who have more money than the council itself. It's going to get messy.
"There's 400 property owners. If they put in a couple of thousand dollars each that's a very handy fighting fund."
The principal of Professionals Byron Bay, Owen Lynn, is also threatening legal action over the ban.
"Byron Shire Council claim that it is illegal to rent in a 2A zone. This will be challenged in the court and they will be overhauled," Mr Lynn said.
Mr Farrell said LJ Hooker will keep holiday letting homes in residential zones until there was a directive not to.
"We will continue to rent the property until instructed by the owner not to," he said.
And it was business as usual at First National yesterday with bookings still being taken for holiday lettings.
"Until we get something in writing from the council that it is illegal we will carry on with business as usual," Chris Hanley said.
They may not have to wait for long.
Byron Shire Council's planning director, Ray Darney, confirmed letters are to be issued to the agents informing them it was unlawful under the council's local environment plan to rent out a home in a residential area for the purpose of holiday letting.
"Almost all of them are breaking the current laws," Mr Darney said.
"By using the property as a tourism facility they are operating illegally."
Mr Darney said the council was not trying to initiate legal proceedings, nor had it reported the agents to the Office of Fair Trading.
"We are simply taking action that is appropriate to eliminate the nuisance cause," he said.
"If the property owners will agree not to rent out their homes in that way then the issue is solved for us."
The council is investigating nine properties allegedly being used for illegal holiday lettings, while formal 'cease and desist' notices have been issued to two property owners in South Golden Beach and Lilli Pilli.
The principal of Paul McCarthy Real Estate claims fellow agents have risked their licences by promoting the illegal use of a home in a 2A residential zone.
"They are breaching every law in the book," Mr McCarthy said.
"They've got to be in breach of their licences. That's it in a nutshell.
"An agent must always hold themselves up to be a genuine person, not promote something that's illegal.
Another agent, Michael Maxwell, also said agents had taken big risks.
"There's not one real estate salesperson in this town that hasn't sold property based on its investment potential as a holiday rental," he said.
"You have to suffer the consequences of running a business off something that's illegal.
"Everybody knew. There were whispers about this back in 1995.
"They've all run the risks."
Mr Maxwell said he warns property buyers when they ask him about the potential of holiday rental returns.
"I had a guy email me from Hong Kong last week looking to buy a property in Lilli Pilli and holiday let it.
"I said to him before you go any further, this is a very contentious issue in Byron Bay. I told him to be very aware.
"If you don't warn the buyer, it's misleading.
"It's like the agent who sold the house that a family had been murdered in.
"If you know about it, you can't just ignore it and focus on the lovely nature reserve next door."
(In December 2004 two Sydney LJ Hooker agents were fined $20,000 by the Office of Fair Trading after selling the house in which Stef Gonzales murdered his family without disclosing its grisly history to the buyer.)
A spokesperson for the Office of Fair Trading confirmed an agent could be found to be in breach of their licence code of conduct if they had knowingly promoted an unlawful use.
But no Byron Bay real estate agents were currently being investigated.
"At this stage it's a matter between the landlords and the council," the spokesperson said.