Hello Amy
I agree it would be great if we had legislative clarity here, I do not envy you Amy as these ones are tricky.
some quick thoughts below –
– despite what they call themselves what consent do they have as per their DA? What does their DA say about their permitted operation and site set up and configuration?
– check if you’ve got any definitions of what they call themselves, say, does your council define a ‘bed & breakfast’ or ‘guest house’ under its LEP? Any definitions anywhere else, like the EP&A Act?
– could the VG apply a MDAF to the situation?
– you’re wanting to determine ‘dominant use’, have you got them to fill in an declaration about how they use the site and provide you with info. like their tariffs, no. of rooms, days of the year operating, occupancy rates, services provided, etc (ie, how intense is their accommodation operation v their operation of residing their themselves).
– look at the rental aspect … how much annual rent would they get for their residence v how much annual income they get their ‘bed and breakfast/guest accommodation’ operation.
If your research and gut feeling makes you believe that the dominant use is commercial then try to work with them in a way that leads to proof of that (difficult, yes, but worth a try).
If your area is getting more and more of this scenario it would be great if you could get a policy developed because whatever you do ‘do’ – you’ll want to be able to be consistent. Maybe there are some policies out there already that you could look at – maybe Jane at Byron Bay Council has a policy for this.
Overall – whatever decision is made you want to be able to think you could defend it in Court … you might consider getting a legal opinion if you haven’t already.
Good luck with it Amy.
Cherie
.
