Posted on April 6, 2020 by Megan Hawley

COVID-19 – AirBNB Regulation Repealed

On Friday 3  April, the State government made the Fair Trading Amendment (Code of Conduct for Short-term Rental Accommodation Industry) Repeal Regulation 2020 (Repeal Regulation), to repeal a regulation it only gazetted on 16 March 2020 regarding short term rental accommodation.

The Fair Trading Amendment (Code of Conduct for Short-term Rental Accommodation Industry) Regulation 2020 (STRA Regulation) was gazetted on 16 March and was due to commence operation on 10 April 2020. The Repeal Regulation will commence on 9 April, thus repealing the STRA Regulation before it takes effect.

The Sydney Morning Herald is today reporting that in response to questioning regarding the Repeal Regulation a spokesperson for the Minister for Better Regulation and Innovation Kevin Anderson, said “There’s zero reason for someone to stay in an Airbnb…It’s illegal to have any guests whatsoever.’

The STRA Regulation was to have the effect of declaring the mandatory Code of Conduct for the Short-term Rental Accommodation Industry (Code), for the purposes of the proposed s54B of the Fair Trading Act 1987, which was also due to commence on 10 April 2020.

See our previous blogs regarding the amendments to the Fair Trading Act and Strata Schemes Management Act 2015 (SSMA) regarding short term accommodation here and here. It is not clear at this stage whether those amendments will all commence on 10 April as proposed. Reporting suggests the amendments to the SSMA may still proceed to enable owners corporations to make by-laws regarding the use of apartments in their strata schemes for short term rental accommodation. Perhaps the commencement of the amendments to the Fair Trading Act will be postponed.

It is perhaps understandable that the Government considers it inappropriate to proceed to enact a framework for the regulation of accommodation which it now says is illegal under the various COVID-19 orders. However, to the extent that there is short term rental accommodation still being used and advertised (albeit that the use may be contrary to the orders), it would seem that there would remain a need for regulation of the industry, and the Code and STRA Regulation would assist in that regard, particularly as they provide for reporting of hosts and other industry participants who are breaching the law.

The draft Code can be viewed here.

The STRA Regulation can be viewed here.

The Act to amend the Fair Trading Act and SSMA can be viewed here.

To discuss this post, please contact Megan Hawley on 02 8235 9703.

2 replies on “COVID-19 – AirBNB Regulation Repealed”

  1. Russell Harrison says:
    April 7, 2020 at 9:02 am

    Hi Megan, Most short term letting facilitated by booking platforms like Airbnb is currently illegal in the City of Sydney. It’s a change in use and therefore development consent is required. Most hosts dont have consent and are not aware of the requirement. The government has scope to stop this activity now with current laws. It does not have to resort to a covid19 reg that doesnt seem to prevent this type of use anyway. Your thoughts?

    1. megan hawley says:
      April 14, 2020 at 11:29 am

      Hi Russell,
      The Regulation which was passed and then repealed was about the Code of Conduct, and did not have any effect on the planning approvals required for short term rental accommodation.
      Part of the State Government’s proposed framework to regulate short term rental accommodation was a SEPP to make it exempt or complying development in certain circumstances. We posted an article about the draft SEPP on our In Focus page in September 2019. That SEPP has not been made and I assume will now also be on hold due to COVID-19 given the repeal of the Regulation. This means existing local planning controls continue to apply and could be enforced.
      Regards
      Megan

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