Blacktown City Council v Kellyville Ridge Health Centre Pty Ltd

[2021] NSWLEC 65

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blacktown City Council v Kellyville Ridge Health Centre Pty Ltd [2021] NSWLEC 65

Hearing dates:

31 May 2021

Date of orders:

21 June 2021

Decision date:

21 June 2021

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [72]

Catchwords:

ENVIRONMENT AND PLANNING — Environmental planning instruments — Prohibited uses — Undertaking prohibited development — Civil enforcement proceedings — Discretion to grant relief

ENVIRONMENT AND PLANNING — Orders — Brothels — Failure to comply with requirements of order — Civil enforcement proceedings — Discretion to grant relief

Legislation Cited:

Blacktown Local Environmental Plan 2015

Corporations Act 2001 (Cth) s 109X

Environmental Planning and Assessment Act1979 (NSW) Div 9.3, Sch 5, ss 1.4, 4.3, 9.34, 9.37, 9.45, 9.46, 9.48, 10.11

Restricted Premises Act 1943 (NSW) s 2

Summary Offences Act 1988 (NSW) ss 16, 17

Uniform Civil Procedure Rules 2005 (NSW) Sch 1, rr 1.5 10.5, 10.20, 10.22, 42.1, 42.2

Cases Cited:

Bankstown City Council v Le [2003] NSWLEC 362; (2003) 133 LGERA 155

Begley v Police [1996] SASC 5851

Campbelltown City Council v Dunn [2003] NSWLEC 122

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6

Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1

Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62

Polnibs Pty Ltd v Bankstown City Council [1997] NSWLEC 55

WarringahShire CouncilvSedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361

Willoughby City Council v Chen [2014] NSWLEC 92

Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101

Willoughby City Council v Wu [2014] NSWLEC 165

Texts Cited:

Macquarie Dictionary (online ed), accessed 21 June 2021

Category:

Principal judgment

Parties:

Blacktown City Council (Applicant)
Kellyville Ridge Health Centre Pty Ltd (ACN 635 076 872) (Respondent)

Representation:

Counsel:
S Shneider, solicitor (Applicant)
No appearance for the Respondent

Solicitors:
Houston Dearn O’Connor (Applicant)

File Number(s):

2020/00291093

Publication restriction:

Nil

Judgment

1. Before the Court are civil enforcement proceedings brought by Blacktown City Council (‘Council’), in the Court’s Class 4 jurisdiction against the respondent, Kellyville Ridge Health Centre Pty Ltd (‘Respondent’).

2. Council seeks orders pursuant to s 9.45 of the Environmental Planning and Assessment Act1979 (NSW) (‘EPA Act’) in relation to the Respondent’s use of Shop 3, 14 Merriville Road, Kellyville Ridge (the ‘premises’), located on land identified as Lot 4 in DP 1203813, for the purposes of a brothel or for related sex uses.

3. Council asserts that the Respondent has breached s 4.3 of the EPA Act, by undertaking development that is specified in an environmental planning instrument to be prohibited, and seeks orders that the Respondent must not use, and must not cause, permit or allow the use of, the premises for the purposes of a brothel or for related sex uses.

4. Council also asserts that the Respondent has breached s 9.37(1) of the EPA Act, by failing to comply with the requirements of a development control order, and seeks a declaration that the Respondent has failed to comply with a Brothel Closure Order dated 28 July 2020 (‘BCO’).

5. Mr S Shneider, solicitor, appeared for Council. The hearing proceeded in the absence of the Respondent.

6. For the reasons that follow, I consider that Council is entitled to injunctive relief, generally in accordance with the injunctive relief sought in the summons.

Procedural history

7. In circumstances where there was no appearance for the Respondent, it is appropriate to outline the procedural history of these proceedings and record the evidence of service of material on the Respondent.

8. In relation to service, Council reads the affidavits of Steven Elias Shneider sworn 15 October 2020, Christina Tran sworn 15 October 2020, Justin Veitch sworn 18 November 2020, and Jason Roberts sworn 19 November 2020. The substance of this evidence is as follows.

9. Council filed the summons commencing the proceedings, and the points of claim, on 9 October 2020. That same day, Council’s solicitors served the Respondent with the summons and points of claim by posting these documents to the registered office of the Respondent (also being the residential address for one of the directors of the Respondent), in accordance with s 109X of the Corporations Act 2001 (Cth).

10. On 12 October 2020, Council’s solicitors served the Respondent with the affidavit of Jason Roberts sworn 6 October 2020 and the exhibits to that affidavit, by posting them to registered office of the Respondent (as indicated by the address of the covering letter providing these documents), in accordance with s 109X of the Corporations Act 2001 (Cth).

11. The proceedings were listed for a directions hearing before a judge of the Court on 6 November 2020. There was no appearance for the Respondent, and the proceedings were adjourned to allow Council to effect further service of material on the Respondent. Also on 6 November 2020, Mr Roberts served the summons, points of claim, affidavit of Mr Roberts sworn 6 October 2020 and the exhibits to that affidavit on the Respondent by handing them to a person named ‘Wen Cai’ who appeared over the age of 18 years, and to hold a position of control, at the premises.

12. On 17 November 2020, a licenced process server attended the registered office of the Respondent and served an employee named ‘Ed Hung’ with the summons, points of claim, affidavit of Mr Roberts sworn 6 October 2020 and the exhibits to that affidavit. Ed Hung was apparently over the age of 16 years and verbally confirmed he was authorised to accept service of documents on behalf of the Respondent.

13. The proceedings were listed before judges of this Court for directions hearings on two further occasions, with no appearance for the Respondent on either occasion. On 12 March 2021, the proceedings were set down for hearing on 31 May 2021.

14. On the day of the hearing there was no appearance for the Respondent. I caused the Respondent to be called three times outside the Court. The Council, having read the affidavits relating to service noted at [8] above, submitted that the Respondent had been given “ample warning” of the proceedings. Council submitted that the Respondent had been properly served with the summons and other material relevant to the proceedings on a number of occasions.

15. On the basis of the evidence set out above, I was satisfied that the Respondent had been properly served with the summons and other material related to these proceedings, and that it was appropriate that the hearing proceed in the Respondent’s absence. In particular, I was satisfied that the service of the summons complied with the requirement for originating processes in the Court to be personally served on the Respondent: rr 1.5, 10.20(2)(a), 10.22(b) and Sch 1 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). I was also satisfied that the service of other material (by posting it to the registered office of the Respondent or leaving it with a person apparently 16 years or over and employed at the premises) complies with the general requirements for service of documents in proceedings, in accordance with r 10.5(1) (c) and (d) of the UCPR.

16. In addition to the evidence regarding service referred to above, Mr Schneider made submissions in relation to the service of the evidence book and court book on the Respondent. Details of this service were deposed to in the affidavit of Rachel O’Connor sworn 1 June 2021 and provided to the Court shortly after the hearing. These submissions (and the further evidence) indicated that on 27 May 2021, copies of the evidence book and court book were delivered to the Respondent at the premises, by courier.

Background

Evidence

17. In relation to its primary case, Council reads the affidavit of Mr Roberts sworn 6 October 2020 (which exhibits a detailed bundle of documents and materials extracted from Council’s files) and the affidavit of Robert Askew affirmed 14 December 2020.

Salient facts

18. The salient facts relevant to the proceedings can be summarised as follows.

19. The premises are occupied by the Respondent pursuant to a lease between the owners of the premises and the Respondent dated 17 January 2020, for a term of three years which commenced on 19 September 2019 and will expire on 18 September 2022, subject to an option of three years. The lease was signed for the Respondent by Jianhua Li, a director of the Respondent on 3 December 2019.

20. On 18 September 2019, a complying development certificate (‘CDC’) was issued in respect of “internal alterations to a business premises” for the premises. The Respondent was identified as the applicant for the CDC. Later, on 22 November 2019, a final occupation certificate for completion of “internal alterations to a business premises” at the premises was issued to the Respondent.

21. Relevant to these proceedings, on 20 July 2020, Council received a complaint about the use of the premises from a Federal Member of Parliament. As a result of the complaint, Council retained a private inquiry agent to attend the premises with instructions to “establish whether the occupants were carrying on business providing sexual services for the payment of money…”. The private inquiry agent attended the premises on 23 July 2020 and provided a report of that attendance to Council dated 24 July 2020. The details of the attendance do not require recitation, except to note that the private inquiry agent received sexual services in exchange for payment of money, and that a number of persons were observed working at the premises on that day.

22. On 28 July 2020, Council issued the BCO pursuant to Div 9.3 of the EPA Act to the Respondent. The BCO was addressed to the Respondent at the premises, with a copy to the registered office of the Respondent and to the real estate agent managing the premises for the attention of the landowner.

23. The BCO provided as follows:

“What you must do (column 1 of the Table at Part 3 of Schedule 5 (of the Act)

Blacktown City Council orders you, being the occupier of the premises and accordingly a person or persons prescribed by column 3 of the table at Part 3 of Schedule 5 of the Act, within 7 days of the date of this Order to prohibit using premises for the following uses:

a.   sexual acts or services in exchange for payment, or

b.   massage services (other than genuine remedial or therapeutic massage services) in exchange for payment, or

c.   adult entertainment involving nudity, indecent acts or sexual activity in exchange for payment or ancillary to other goods or services.”

24. Some months later, Council again retained the same private inquiry agent to attend the premises with the same instructions as set out at [21] above. The private inquiry agent attended the premises on 2 September 2020 and provided a report of that attendance to Council dated 18 September 2020. Again, the details of the attendance do not require recitation, except to note that the private inquiry agent received sexual services in exchange for payment of money, and that a number of persons were observed working at the premises on that day.

Relevant legislative regime

25. Section 4.3 of the EPA Act provides as follows:

4.3   Development that is prohibited

If an environmental planning instrument provides that—

(a)   specified development is prohibited on land to which the provision applies, or

(b)   development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

…

26. At the relevant times, the premises were located on land zoned “B1 Neighbourhood Centre” under the relevant environmental planning instrument, the Blacktown Local Environmental Plan 2015 (‘BLEP’). Under the BLEP, “sex service premises” are prohibited development in land zoned B1 Neighbourhood Centre.

27. “Sex service premises” are defined in the dictionary to the BLEP to mean a brothel, but to exclude “home occupation (sex services)” (which, in short, relate to the provision of sex services in a brothel by no more than two permanent residents, without employment of persons other than the residents, interference with neighbourhood amenity, signage, and retail sale of items). “Brothel” has the same meaning in the BLEP as in the EPA Act, where it is defined by reference to the definition in the Restricted Premises Act 1943 (NSW) (‘RP Act’), but excludes “premises used or likely to be used for the purposes of prostitution by no more than one prostitute”: s 1.4 EPA Act.

28. Section 2 of the RP Act defines “brothel” as premises:

…

(a)   habitually used for the purposes of prostitution, or

(b)   that have been used for the purposes of prostitution and are likely to be used again for that purpose, or

(c)   that have been expressly or implicitly—

(i)   advertised (whether by advertisements in or on the premises, newspapers, directories or the internet or by other means), or

(ii)   represented,

as being used for the purposes of prostitution, and that are likely to be used for the purposes of prostitution.

...

29. While “prostitution” is not defined in the RP Act, the meaning of the term in the environment and planning context has previously been considered by this Court. In Polnibs Pty Ltd v Bankstown City Council [1997] NSWLEC 55, Sheahan J properly noted that the definition of prostitution must be “appropriate to today’s circumstances” and can be “gleaned” from recent authorities and relevant dictionaries. In that case, Sheahan J considered the authorities, and cited with approval the comment of Doyle CJ in Begley v Police [1996] SASC 5851 at [20] that “… the essence of prostitution is the offering of the body for hire for the gratification or satisfaction of sexual appetites”.

30. This definition of prostitution has been adopted in later cases in this Court including Campbelltown City Council v Dunn [2003] NSWLEC 122 at [22], where Pearlman J considered whether there was evidence of a sexual act or sexual gratification in forming her view as to whether prostitution had occurred, and Bankstown City Council v Le [2003] NSWLEC 362; (2003) 133 LGERA 155 (‘Bankstown City Council v Le’) at [50].

31. The contemporary meaning of prostitution can also be informed by the first definition in the current Macquarie Dictionary, being “the act or practice of engaging in sexual intercourse for money”, where “sexual intercourse” is relevantly defined as “sexual contact involving the genitals of at least one of the individuals”. I note that although I am bound by the terms of the legislation to use the terms prostitution and prostitute, I do so in a non-pejorative legal sense and without disrespect.

32. Finally, for completeness, I am cognisant that pursuant to s 9.48(5)(a) of the EPA Act, the Court may rely on circumstantial evidence to find that premises are used as a brothel, and premises may be found to be a brothel without any direct evidence of use as a brothel.

33. Section 9.37(1) of the EPA Act provides as follows:

“(1)   A person to whom a development control order is given or is taken to have been given must comply with the terms of the order.”

34. The relevant development control order in these proceedings is the BCO issued pursuant to Div 9.3 of the EPA Act. Section 9.34 of the EPA Act provides that brothel closure orders may be given in accordance with the table to Pt 3 of Sch 5 of the EPA Act. That table provides as follows:

Part 3 Brothel closure orders

Column 1 To do what? To stop using premises as a brothel, including to specifically stop using the premises for— •   sexual acts or services in exchange for payment, or •   massage services (other than genuine remedial or therapeutic massage services) in exchange for payment, or •   adult entertainment involving nudity, indecent acts or sexual activity in exchange for payment or ancillary to other goods or services. To prohibit using premises for any of the above uses if those uses are prohibited under an environmental planning instrument or require planning approval and no approval has been granted. To comply with the conditions of a planning approval for the use of premises as a brothel. Column 2 In what circumstances? When premises are being used for a purpose that is prohibited. When premises are being used for a purpose for which a planning approval is required but has not been obtained. When premises are being used in contravention of a planning approval. Column 3 To whom? The owner of the premises, or the person using premises for the purpose specified in the order. The person entitled to act on a planning approval who is acting in contravention of the approval. Any person apparently in control of, or managing, or assisting in the control or management of, the brothel.

35. Schedule 5 of the EPA Act contains requirements for the giving of development control orders, including special provisions relating to brothel closure orders in Pt 9 of Sch 5. Relevantly, a development control order is given by serving a copy of the order on the person to whom it is addressed in accordance with cl 4 of Sch 5 of the EPA Act.

36. Section 10.11 of the EPA Act provides that where a notice is required to be served on a corporation, it may be served by:

1. leaving it at the corporation’s place of business or registered office with a person apparently not less than 16 years of age and apparently in the service of the corporation;

2. sending it by prepaid post addressed to a corporation at the address specified for giving notices under the EPA Act or where no address is specified, the corporation’s last known place of business; or

3. sending it by facsimile or electronic transmission in accordance with arrangements indicated by the corporation.

Submissions

37. Council provided written and made oral submissions. Without disrespect to the careful submissions made, I summarise the key submissions as follows:

1. The Respondent occupied the premises and used the premises as a “brothel / sex services premises”;

2. The BCO was properly issued to the Respondent as a result of the Respondent’s use of the premises for sex services;

3. The BCO was properly served on the Respondent, by sending it to the Respondent’s principal place of business and the registered office of the Respondent (being the residential address of one of its directors) and to the real estate agent managing the premises for the attention of the landowner;

4. Notwithstanding that the BCO was issued to and served on the Respondent, the premises continued to be used for “sex services”;

5. The Respondent is in breach of s 9.37(1) of the EPA Act as the Respondent has not complied with the BCO;

6. The use of the premises for the purposes of sex services is prohibited because the premises are in land zoned B1 Neighbourhood Centre;

7. The Respondent is in breach of s 4.3 of the EPA Act because the Respondent has carried out development at the premises that is prohibited; and

8. Given the prohibited nature of the use of the premises, the Court would be “justified” in granting the relief sought by Council in the summons.

38. Council seeks the following relief (as extracted from the summons):

“1.   From the date of these Orders the Respondent must not use Shop 3, 14 Merriville Road Kellyville Ridge NSW 2155 ("the premises") for the purposes of a brothel or for related sex uses including:

(a)   Sexual acts or services in exchange for payment; or,

(b)   Massage services (other than genuine remedial or therapeutic massage services) in exchange for payment; or,

(c)   Adult entertainment involving nudity, indecent acts, or sexual activity in exchange for payment or ancillary to other goods or services.

2.   From the date of these Orders the Respondent must not cause, permit or allow the premises to be used as a brothel or for related sex uses including:

(a)   Sexual acts or services in exchange for payment; or,

(b)   Massage services (other than genuine remedial or therapeutic massage services) in exchange for payment; or,

(c)   Adult entertainment involving nudity, indecent acts, or sexual activity in exchange for payment or ancillary to other goods or services

3.   Orders 1 and 2 herein shall cease to have force and effect in the event that the Respondent obtains development consent for such use.

4.   A declaration that the Respondent has failed to comply with the Brothel Closure Order dated 28 July 2020.

5.   The Respondent to pay the applicant's costs as agreed or assessed.

6.   Any other Order that this honourable Court deems fit to make in the circumstances”

Consideration

Use of the premises

39. As an initial comment, I note that Council’s contentions in relation to the breaches of ss 9.37(1) and 4.3 of the EPA Act relate to different parts of the relevant legislative regime. However, they are derived from the same factual circumstances and involve similar threshold findings in relation to those factual circumstances. In these circumstances, it is apt to first consider the use of the premises.

40. The evidence before the Court indicates that the Respondent had a lease for the occupation of the premises, which provides for the use of the premises as a “Massage Centre”. The Respondent has also undertaken fit-out works at the premises to facilitate the use of the premises. On this basis, I am satisfied that the Respondent occupied and used the premises at the relevant time.

41. The evidence of the private inquiry agent indicates that sexual services were received at the premises in exchange for the payment of money, on the two occasions that the private inquiry agent was in attendance. I further note that the evidence indicates that there were three persons working at the premises on each of the occasions when the private inquiry agent was in attendance (suggesting there were at least six separate persons working at the premises).

42. Having regard to the definitions of sex service premises and brothel, and the meaning of prostitution, set out above at [27]-[31], I note the following:

1. On the basis that sexual services, involving a sexual act and sexual gratification, were received in return for the payment of money at the premises during the attendances of the private inquiry agent, prostitution occurred at the premises;

2. While the two attendances of the private inquiry agent at the premises do not necessarily meet the threshold of the premises being “habitually used” for the purposes of prostitution, I accept that the premises have been used for the purposes of prostitution, and that they are likely to be used again for that purpose. In this respect, I have taken into account how, during the attendances of the private inquiry agent, the services provided went beyond massages to include sexual services: see also the findings of Bignold J in Bankstown City Council v Le at [63]-[65];

3. Given this, I am satisfied that the premises were used as a brothel for the purposes of s 2 of the RP Act;

4. Noting that three persons were working at the premises during the attendances of the private inquiry agent, I am satisfied that the premises were also used as a brothel for the purposes of the EPA Act (and therefore the BLEP); and

5. Again, noting that there were three persons working at the premises during the attendances of the private inquiry agent, the premises were not being used for home occupation (sex services), and therefore meet the definition of sex service premises for the purposes of the BLEP.

Issuing and serving the BCO

43. I accept that the BCO that was issued by Council was consistent with the requirements of the table to Pt 3 of Sch 5 of the EPA Act.

44. The BCO required the Respondent to “prohibit using premises” for sexual acts or services in exchange for payment, massage services (other than genuine remedial or therapeutic massage services) in exchange for payment, and adult entertainment involving nudity, indecent acts or sexual activity in exchange for payment or ancillary to other goods or services. I note that pursuant to the BLEP, innominate uses such as those listed above are permitted with consent, however, no consent had been granted. Further, the use of the premises for sex services premises is prohibited under the BLEP. Given this, the BCO was consistent with Column 1 of the table to Pt 3 of Sch 5 of the EPA Act.

45. The BCO was issued in circumstances where the premises were being used for the purpose of sex service premises, which is prohibited under the BLEP. As a result, the BCO was also consistent with Column 2 of the table to Pt 3 of Sch 5 of the EPA Act.

46. Finally, the text of the BCO indicates that it was issued to the Respondent as “the occupier of the premises and accordingly a person or persons prescribed by column 3 of the table at Part 3 of Schedule 5 of the Act”, however I note that “occupier” does not appear in Column 3 of the table at Pt 3 of Sch 5 of the EPA Act. Notwithstanding this, I am satisfied that the BCO was properly issued to the Respondent as “the person using premises for the purpose specified in the order” – see [42] above – which appears in Column 3 of the table at Pt 3 of Sch 5 of the EPA Act.

47. In these circumstances, I am satisfied that, on the evidence before the Court, the BCO was properly issued by Council to the Respondent.

48. The evidence of Mr Roberts indicates that the BCO was “given” to the Respondent, which raises a question as to whether the BCO was properly served on the Respondent. However, the submissions made by Council were that the BCO was “sent” to the Respondent at its “principal place of business” and at its registered office. Further, the copy of the BCO available to the Court illustrates that it was directed to the address of the premises, with a copy to the registered office of the Respondent.

49. In these circumstances, and cognisant of the requirements of s 10.11 of the EPA Act in relation to the service or giving of notices under the EPA Act, I accept that the BCO was properly served on the Respondent.

Breach of s 9.37(1) of the EPA Act

50. I am satisfied that the evidence marshalled by Council indicates that after the BCO was given to the Respondent, sexual services were received at the premises in exchange for payment of money.

51. As the BCO prohibits the use of the premises for “sexual acts or services in exchange for payment”, “massage services (other than genuine remedial or therapeutic massage services) in exchange for payment” and “adult entertainment involving nudity, indecent acts or sexual activity in exchange for payment”, I am satisfied that the Respondent has not complied with the terms of the BCO. As a result, I find that the Respondent has breached s 9.37(1) of the EPA Act.

Breach of s 4.3 of the EPA Act

52. Separate to the BCO, s 4.3 of the EPA Act imposes a broad restriction on the carrying out of development that is prohibited under relevant environment planning instruments.

53. I am satisfied that “sex service premises” are prohibited on land zoned B1 Neighbourhood Centre, such as the premises. Noting my finding above at [42] that the Respondent is using the premises as sex service premises, I am satisfied that the Respondent has carried out prohibited development at the premises. As a result, the Respondent has breached s 4.3 of the EPA Act.

Discretion as to relief

54. Council has established that the Respondent has breached ss 4.3 and 9.37(1) of the EPA Act. I now turn to the relief sought by Council.

55. It is trite that the Court has broad powers to make declarations and grant injunctive relief. I note that, pursuant to s 9.46 of the EPA Act, the Court may make such order as it thinks fit to remedy or restrain a breach or anticipated breach of the EPA Act.

56. Given this, the question is whether I exercise my discretion to grant the relief sought by Council. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 (‘Warringah v Sedevcic’) at 339-341, Kirby P (as his Honour then was) identified guidelines applicable to the exercise of the Court’s discretion to grant relief and make orders under what was then s 124 (now s 9.46) of the EPA Act. Shortly summarised, these guidelines include:

1. That the Court’s discretionary power to grant relief is wide;

2. While it is undesirable to attempt to catalogue or classify the circumstances which will enliven the exercise of the discretion, it can be instructive to consider previous circumstances in which the discretion has been exercised;

3. The restraint sought through the grant of relief is not the enforcement of a private right, but rather a public duty imposed under the EPA Act (where broad standing provisions indicate that Parliament has evinced an intention to uphold the integrated and co-ordinated nature of planning law);

4. The intention of the EPA Act is that, normally, those concerned with development and use of the environment will comply with the EPA Act;

5. The Court may be less likely to deny equitable relief sought by councils or the Attorney-General (as proper guardians of public rights) than it would in litigation between private citizens;

6. Where relief is sought against a “static” development which can only be remedied at great cost or inconvenience, the discretion may be more readily exercised than where relief is sought against continuing conduct which could quite easily be modified to bring it into compliance with the law;

7. The wide discretion is an important feature of ensuring a just result is achieved; and

8. On appeal, due regard will be had to the exercise by a judge of this Court of their discretion to decline or grant relief.

57. I have taken these guidelines into account when deciding whether to grant the relief sought by Council. In the circumstances, I note the following:

1. Declarations and injunctions have been granted by the Court in previous cases involving brothels: Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101; Willoughby City Council v Chen [2014] NSWLEC 92; Willoughby City Council v Wu [2014] NSWLEC 165 (‘Willoughby v Wu’);

2. Allowing the ongoing use of the premises as a brothel or sex services premises runs the risk of undermining the EPA Act, as “if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124 [now s 9.46], the equal and orderly enforcement of the Act could be undermined”: Warringah v Sedevcic at 340;

3. The proceedings have been brought by Council, where councils are the proper guardians of public rights; and

4. The relief is sought against continuing conduct of the Respondent, being the use of the premises as a sex services premises / brothel. As noted in oral submissions, Council is not seeking that the Respondent stop using the premises for their lawful use, but rather seeking relief that proscribes the Respondent from using the premises for unlawful uses. Given this, I consider that the use of the premises could quite easily be modified to bring it into compliance with the law.

58. These considerations support the grant of injunctive relief on terms similar to those sought by Council in the summons. I consider that the grant of injunctive relief is appropriate and proportionate to the purpose of the enforcement provisions in the EPA Act.

59. In my view, injunctive relief is likely to be effective at guarding against and deterring future breaches of the EPA Act by the Respondent, in circumstances where those breaches involve a use rather than “static” development (and accordingly the risk of future breaches would appear to arise relatively easily). Compounding this, I note that as a result of the Respondent’s failure to appear in these proceedings, the Court has not received an explanation or excuse for the use of the premises which resulted in the breaches of the EPA Act. In the absence of a reason for the breaches, I cannot rule out the likelihood of the Respondent committing future breaches of the EPA Act. I therefore feel that the imposition of a restraint on the Respondent in the form of injunctive relief is justified.

60. The injunctive relief will cause minimal or no hardship to the Respondent, in circumstances where it can continue its use of the premises within the bounds of planning law, without disruption. On this note, I consider that the injunctive relief granted against the Respondent should take effect five days after the date of the orders in these proceedings, to provide for the Respondent to be served notice of the orders made by the Court.

61. Finally, I consider that this relief effectively responds to the recorded concerns of the community (in the form of the complaint received by Council about the use of the premises). It actively proscribes future breaches of the EPA Act, and therefore future adverse impacts on the community as a result of such breaches. It clearly sets out the expectations of the Court in relation to compliance with planning law, and in this respect enforces the public duty imposed by the EPA Act.

62. Council also seeks declaratory relief in the form of a declaration that the Respondent has not complied with the BCO. Council did not seek declaratory relief in relation to the prohibited use. In considering whether to exercise my discretion to grant declaratory relief specifically, I note that the declaration “has come to be seen as an emphatic way for the Court, in appropriate circumstances, to mark the community's disapproval of the respondent's conduct”: Willoughby v Wu at [23]. In that case, Biscoe J noted that while a declaration must serve a useful purpose, “[a] declaration serves a useful purpose if it is in the public interest to make it” and the enforcement of planning laws protects the public interest: at [24].

63. However, as noted by Preston CJ of LEC in Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1 (‘Lani’) at [25], the judgment of the Court in successful civil enforcement proceedings is a public pronouncement that a breach of the law has occurred. In some cases, a judgment will be sufficient to “publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged”, meaning a declaration is not required: Lani at [25]; Willoughby v Wu at [24].

64. In Lani, Preston J declined to grant declaratory relief for the following reasons: first, a declaration would not have a practical effect in the circumstances; second, a declaration is not required to activate the Court’s jurisdiction to make orders including injunctive orders (unlike other regulatory regimes); third, declarations do not remedy past breaches or restrain future breaches of legislation; fourth, “care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution”; and fifth, as noted above, a public pronouncement that a breach of the law has occurred can be achieved by the Court making findings in a judgment: Lani at [20]-[25]. Preston J’s comments have been considered in a number of cases in this Court, including in cases where declaratory relief has been granted: Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6; Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62.

65. I adopt Preston J’s remarks and consider, for reasons similar to those expressed in Lani, that in circumstances where I consider it appropriate to grant injunctive relief, it is not appropriate to make the declaration sought by Council.

66. In summary, I am not convinced that the declaration sought by the Council serves a useful purpose. It is uncontentious that the relevant legislative regime in the EPA Act does not require a declaration to be made to trigger the Court’s jurisdiction to make other orders. Further, I am not convinced that a declaration will have a practical effect in the circumstances, where it relates to the non-compliance of the Respondent with a specific development control order at a particular time (that is, the date the declaration is made by the Court).

67. A declaration will not remedy past breaches of the EPA Act by the Respondent or restrain future breaches. For the reasons outlined above at [58]-[61], I am satisfied that the injunctive relief sought by the Council is the appropriate relief to restrain future breaches. I am also cognisant that a declaration must not be utilised as a substitute for a criminal prosecution. Analogous to the circumstances in Lani, criminal proceedings could have been pursued against the Respondent: see ss 16 and 17 of the Summary Offences Act 1988 (NSW), but to date do not appear to have been. In these circumstances, I am reticent to grant declaratory relief.

68. Finally, I consider that this judgment constitutes an appropriate public pronouncement that the Respondent has breached the law, and is sufficient to “publicly expose and denounce on behalf of the community the unlawful behaviour”: Lani at [25].

Costs

69. The Council seeks an order that the Respondent pays its costs as agreed or assessed.

70. The usual order in Class 4 of the Court’s jurisdiction is that the costs follow the event pursuant to r 42.1 of the UCPR. As a result, Council's costs would be paid by the Respondent. There is no reason to depart from this position. Council has been successful in establishing that the Respondent has breached ss 4.3 and 9.37(1) of the EPA Act, and has been successful in obtaining Court orders restraining the use of the premises.

71. The amount of the costs can be assessed in the usual manner. Council will prepare and provide to the Respondent a bill of costs, assessed on the ordinary basis pursuant to r 42.2 of the UCPR. The Respondent will have an opportunity to negotiate and agree on the amount of the costs. If agreement is not able to be reached, the amount of costs will need to be determined by a costs assessor.

Orders

72. In all the circumstances, I make the following orders:

1. From 5 days after the date of these orders Kellyville Ridge Health Centre Pty Ltd (ACN 635 076 872) (the ‘Respondent’) must not use Shop 3, 14 Merriville Road, Kellyville Ridge (the ‘premises’) for the purposes of a brothel or for related sex uses including:

1. Sexual acts or services in exchange for payment; or,

2. Massage services (other than genuine remedial or therapeutic massage services) in exchange for payment; or,

3. Adult entertainment involving nudity, indecent acts, or sexual activity in exchange for payment or ancillary to other goods or services.

2. From 5 days after the date of these orders the Respondent must not cause, permit or allow the premises to be used as a brothel or for related sex uses including:

1. Sexual acts or services in exchange for payment; or,

2. Massage services (other than genuine remedial or therapeutic massage services) in exchange for payment; or,

3. Adult entertainment involving nudity, indecent acts, or sexual activity in exchange for payment or ancillary to other goods or services.

3. Blacktown City Council is to serve a copy of these orders on the Respondent within 2 days after the date of these orders.

4. The Respondent is to pay the costs of Blacktown City Council as agreed or assessed.

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Decision last updated: 21 June 2021