Botany Municipal Council v Tsolakis

[1988] NSWLEC 148

Land and Environment Court

of New South Wales

CITATION:

Botany Municipal Council v Tsolakis & Ors [1988] NSWLEC 148

PARTIES:

FIRST RESPONDENTS
Fotios Tsolakis and Theoni Tsolakis

SECOND RESPONDENT
Elias Taouk t/as E. & R. Trading

THIRD RESPONDENT
Elias Romanous t/as Eastside Health Studio

FILE NUMBER(S):

40051 of 1988

CORAM:

Holland J

KEY ISSUES:

:-

LEGISLATION CITED:

Environment Planning And Assessmenr Act (1979)
Summary Offences Act (1988)
Prostitution Act (1979)
Land And Environment Act (1979)

CASES CITED:

Samuels v Bosch (1972)

DATES OF HEARING:

DATE OF JUDGMENT:

11/30/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The applicant, Botany Municipal Council, made on 24 March 1988 a Class IV application, which it amended on 6 May 1988, for injunction to restrain the respondents from using or causing or permitting the use of certain premises as:-

(a) a brothel, or

(b) a health studio, or

(c) a place for the entertainment of male or female persons, or

(d) an escort agency.

The subject premises are known as 1397A Botany Road, Botany, and consist of the first floor of a building which has stairway access from Botany Road at the front entrance and a laneway at the rear entrance.

The first respondents are named as Fotios Tsolakis and Theoni Tsolakis. They are alleged to be the owners of the subject premises, which they admitted; but they denied using or allowing the premises to be used for any of the above purposes. On the second day of the case their counsel withdrew after informing the Court that his clients submitted to such order as the Court saw fit to make except as to costs.

The second respondent was named as "Elias Taouk t/as E. & R. Trading". The third respondent was named as "Elias Romanous t/as Eastside Health Studio". When appearances were announced the counsel appearing for the second and third named respondents informed the Court that the two persons named were one and the same and that his correct name was Elias Taouk Romanous. At that counsel's request, I amended the application accordingly.

Shortly afterwards counsel for the applicant called for the production of documents on subpoenas addressed to the second and third respondents as originally named in the application and, when none were produced by counsel appearing for those respondents, called for the subpoenas to be answered personally. A man came forward without any documents and was called into the witness box to answer on oath. After being sworn he gave his name as Elias Romanous Taouk. Counsel who had appeared acknowledged that this man was his client and the person misnamed as second and third respondent. I again amended the application, this time to show Elias Romanous Taouk as second and third respondent. I shall refer to him as Mr. Taouk.

Mr. Taouk is alleged by the Council to be the person who is using the premises for the purpose of whatever activities are conducted there and the Council alleges that, on the evidence, those activities, by whatever name called, consist of running a brothel. However, the Council's case for injunctive relief is that the activities being conducted in the subject premises are in breach of s.76 of the Environmental Planning and Assessment Act, 1979 in that under the relevant zoning law, and depending on how they are correctly to be described, they are development that is either prohibited absolutely or prohibited without the consent of the Council, no such consent ever having been given.

Development of the subject premises is controlled by Interim Development Order No. 19 - Municipality of Botany (published in the Government Gazette 16 September 1977) under which the land is in a block zoned 3(a) Business General. The buildings in this block have frontages to Botany Road which is a County Road, and rear access to Nilsson Lane. The block is bounded at the sides by Bay and Banksia Streets. The land in the block at the rear adjacent to Nilsson Lane is zoned 2(a) Residential "A", except for the land at the corner of Banksia Street and Nilsson Lane on which is erected a post office and which is zoned Special Uses "A".

On land zoned Business General no development may be carried out without the consent of the Council. Certain shops and commercial premises are permitted subject to conditions which the Council may impose. Other specified forms of development may be carried out only with the Council's consent. All other forms are prohibited.

Counsel for Mr. Taouk elected to make no admissions and to put the Council to proof of all its allegations.

The Council adduced evidence which, in my opinion, proved the following facts:-

1. On 6 November 1985 one E. TAOUK of Rockdale, in the name of ABBCO Enterprises, with the written consent of the first respondents as owner of the premises, applied to the Council for consent to the use of the subject premises as a Health and Therapeutic Centre. The applicant failed to respond when the Council replied to the application by stating that it was deferred and asking whether it was proposed to use any part of the premises for a brothel or other unlawful purpose.

2. In the witness box, Mr. Taouk admitted that he had conducted at the premises referred to in the above application a business he described as a Fitness and Health Studio for four or five months, that the business had customers and that the work of the business was done by "a couple of ladies" who paid him ("for advertising and so on"). Mr. Taouk claimed it was not a success so he left it.

3. On 14 January 1986 Mr. Taouk applied to the Council in the name Elias Roumanos of Rockdale, with the written consent of the first respondents as owner of the premises, for development consent to use the subject premises for:-

"Research Promotions

Import Food and Games"

He signed the application "Elias" followed by a stylish but indecipherable symbol which, in the witness box, he admitted to be his signature. The application form described the proposed development as "Existing office to be used for research and promotions". Additions and alterations proposed were "new amenities and new partitions". When the Council asked for clarification of the use proposed, E. Roumanos, from a post office box address at Rockdale, wrote on 4 February 1986 by hand that the main activity was "Office for advertise for goods import food products exemble (sic) nuts, natural spring water, fatta (sic), cheese, oils, ext (sic)". By letter of 11 March 1986 the Council gave approval for the development of the premises as a "Research and promotions office for the import of foods games (sic)".

4. In the witness box Mr. Taouk claimed that he had carried on a food import and export business in the subject premises in the name "E & R Trading" for over three months in 1986 but "could not do any good" so he stopped but continued to pay the rent while giving the business over to some man. He said he had no records for E & R Trading and had not lodged any tax returns since 1986.

5. On 20 March 1987 the Council received a notice pursuant to clause 7 of State Environmental Planning Policy No. 4 (SEPP No. 4) signed by the first respondents as owners of the building containing the subject premises stating that the first floor of the building (identifying it as the premises the subject of these proceedings) was "presently being lawfully used as a research and promotions office for the import of food pursuant to the approval granted by the Council on 11 March 1986". The notice then, in the names of the first respondents, as such owners, gave notice, pursuant to clause 7 of SEPP No. 4, that they would, after the date of the notice, use the first floor as "a place for entertainment of male and female persons" subject to the conditions attached to the said approval. On the same date the Council wrote back that the proposed use did not appear to be as "commercial premises" as required under SEPP No. 4 but as a "place of assembly" for which a development application was required. Development ap

plication forms were enclosed with a request that they be completed and returned as soon as possible and the applicants were advised not to commence the proposed new use until development consent to it was given. (This letter was not replied to by the first respondents as were three others written in May, June and July 1987, the last of which warned of possible proceedings to restrain the unauthorised use of the premises).

6. On 30 March 1987 D.J. Farrugia & Co. lodged with the Corporate Affairs Commission applications for registration of two business names for an "Escort Agency" to be carried on at the address of the subject premises. One of the names was "Eastside Health Studio"; the other was "Eastside Escort Agency". The business was to commence on 30 March 1987 and the person named as carrying on the business in each case was Elias Romanous of the same address as the subject premises. Both applications were signed by the applicant in the same hand against a date stamp "27 Mar 1986" (which may be incorrect as to the year). When shown copies in the witness box, Mr. Taouk said he did not know if the signatures were his or not but admitted that Mr. Farrugia was his accountant at the time.

7. On 7 April 1987, a match manufacturer called Hanna Match received an order from "East Side Studio" of the same address as the subject premises for the supply of 2,500 "PLaymate Book Matches". With the order was supplied a visiting card giving the name "East Side Studio", the address of the subject premises and two telephone numbers (666.3975 and 666.3140). The card featured a drawing of a rose and said, "24 Hour Service - 7 Days Escorts Available All major credit cards welcome". There were instructions for the form and content of printing that led to the production of book matches featuring the above name, address, phone numbers and rose on the outside of the front cover and an attractive naked woman on the outside of the back cover. Inside the front cover was printed: "24 Hour Service - Hotels-Motels-Homes - Parties a Speciality - Attractive Hostesses for all Occasions - Anywhere, Anytime - All Credit Cards Accepted". The order form stated that the invoice was to go to East Side Studio at the address of t

he subject premises and the person to contact there was "Joe".

8. On 12 May 1987 The Council's Development Control Officer observed in the local newspaper, Southern Courier, in the personal section of the classified advertisements, an advertisement which gave the two telephone numbers just mentioned above and stated: "Botany. Midnight, Ebony. We are young worldly and guaranteed to please. Pay us a visit for a fresh change or phone (phone numbers) for us to call on you. Vacancies available". The Council Officer telephoned one of the numbers and the female voice that answered acknowledged the advertisement and, in answer to a query as to the services offered and the charges, said: "Well love, straight sex $40, $60 for half an hour and $100 for an hour. We also house call if you are unable to call in". He rang again on 15 May 1987 and this time asked for the address and was told the address was that of the subject premises. He received a similar answer as to the services and charges.

9. On 1 August 1987 D.J. Farrugia & Co. lodged another application for registration of a business name for the subject premises. The name was "E & R TRADING", the business was described as "Health Studio -Fitness", the commencing date was to be 1 August 1987. The person to be registered as Carrying on the business was "ELIAS TAOUK" of the same address as the subject premises and E. Taouk signed the application. Again Mr. Taouk said he did not know if the signature was his but admitted Mr. Farrugia was still his accountant at that time.

10. In December 1987 a two year lease of the subject premises from 5 October 1987 was executed by the first named of the first respondents granting the lease to E & R Trading of the same address for the use of the premises as "Chiropractor" with a condition that the lessee obtain all necessary council or other authorities' consents for that use. One Amer Masri was named as guarantor and signed both for the lessee and as guarantor. Mr. Taouk denied that the signature was made by him.

11. On 1 February 1988 the Hanna Match Company received a further order from East Side Studio for another 2,500 "Playmate" book matches. The format ordered was the same as before. Delivery was to be c.o.d. to the same address but no contact name was given this time.

12. On 2 February 1988 the Council's Director of Planning and Environment in the company of its Municipal Health Surveyor made an inspection. The former's description went unchallenged. I quote it:

"I attended at the subject premises which are situated on the 1st Floor with entrance gained from Botany Road. At the top of the stairs there was a locked gate above which was a red light. This light was not lit at the time of my inspection.

The subject premises consisted of a large lounge room at the front of the premises off which ran a single bedroom, then a corridor running back into the premises with three bedrooms each being a double bedroom. At the rear of the premises was a staff room/kitchen and a shower/toilet room which consisted of three large showers and a toilet. In the reception lounge room at the front of the premises there were signs indicating that the premises accepted major credit cards including American Express, Visa, Diners Club etc. In addition, there were restricted publications on a coffee table in the premises, however, these were not displayed for sale.

There were double beds in two of the bedrooms and a single bed in one bedroom. The fourth room was occupied at the time of my inspection. The Manager of the premises Eddie Hakim said to me that the fourth bedroom also had a double bed."

13. On 14 March 1988 these proceedings were commenced against the first respondents.

14. On 20 May 1988 the proceedings were amended to join the second and third respondents.

15. In a publication called "Truth" on July 16, 1988 there appeared under the name "Eastside Escorts and Studio" an advertisement giving the address and 'phone numbers of the subject premises stating: "Beautiful ladies. All Nationalities. Complimentary Champagne. Luxurious surroundings. Call us on ('phone numbers). The Best in Town. Home, Hotel, Motel. 24 hrs. 7 days".

16. On 24 July 1988 a further inspection was made by the same Council officers who inspected on 2 February 1988. Again I quote:-

"I inspected the subject premises, 1397A Botany Road, Botany at 9-15 pm. On arriving at the top of the stairwell leading to the first floor premises I observed to my right a lounge area and then further down the hallway on my right were three bedrooms. The first bedroom was occupied by a woman who was asleep and contained two single beds.

The other two bedrooms contained double beds and in each bedroom there were two towels on the bed and half a dozen towels on a side table.

At the rear of these bedrooms was a bathroom with three large showers and a toilet and behind the bathroom to the right was a stairwell leading down to the rear laneway. Behind the stairwell was a kitchen which backed onto the laneway and there were three girls present. Two were sitting in the kitchen whose ages ranged between 18 years of age to the mid twenties and a third female was asleep in the front bedroom.

Mr Collis and I spoke to the gentleman present who said that he was looking after the premises and his name was Alan Moutafa.

The officers came away with a sample of book matches obtained at the premises. The brand was "Playmate" made by the Hanna Match Company, the form was similar to that earlier described. The message inside the front cover was the same.

17. On 12 October 1988 a licensed commercial agent employed by the Council called at the subject premises to serve on the persons named as second and third respondents subpoenas to produce documents. He interviewed a male person there who represented himself to be Louis Taouk, the Manager. This person told him that neither Elias Taouk nor Elias Romanous were present and did not attend at that address on a regular basis. He suggested that the agent serve the documents on their solicitor named Angelo of Fairfield. After the agent waited, the person later advised him that he had telephoned the solicitor who would accept service on behalf of Elias Taouk and Elias Tomanous. Before leaving the premises the agent collected a box of matches which was on display there. They were made by Hanna Match. One side reads:-

"East Side Studio 24 Hour Service

Complimentary Drink on Arrival Rear Entrance

1397A Botany Road Botany 666 3975 666 3140"

The other side reads:-

"East Side Escort Agency

Open 24 Hours

Attractive Hostesses for all occasions

Anywhere, Anytime

666 3975 - 666 3140"

On another part of the box appears:-

"All major Credit Cards Welcome."

18. On the same day the agent just mentioned called at the office of Angelo Valenti, Solicitor, at Fairfield and served him with the subpoenas. When the hearing commenced counsel who appeared for Mr. Taouk sought leave to file in Court a notice of appearance by Mr. Valenti for the second and third respondents. Mr. Taouk also admitted in the witness box that Mr. Valenti was his solicitor.

19. When Mr. Taouk went into the witness box the agent was called into Court momentarily to observe him. He later gave evidence identifying Mr. Taouk as the male person who, at the premises on 12 October 1988, had represented himself to be Louis Taouk, the Manager.

20. A photograph of the premises on the Botany Road side shows an access door above which is printed "EAST SIDE" and underneath that the word "OPEN". At the side of the door another sign reads "OPEN" indicating by its permanence that the place is always open.

Having called Mr. Taouk to the witness box on subpoena to produce documents, counsel for the applicant examined him so far beyond the question whether there were any documents in existence that I ruled that Mr. Taouk had been made the applicant's witness and was subject to cross examination by his own counsel. In the course of such cross examination Mr. Taouk claimed that he had gone overseas in 1987 and left the business to the Mr. Masri who had signed the lease in December 1987 from the first respondents to E & R Trading. He said that when he returned from overseas Mr. Masri stayed on a while and then left. He also said that Mr. Masri arranged for another person to take the business over and Mr. Taouk agreed to it. He claims to have received no money from Mr. Masri or this other person and to have paid no rent or business expenses in connection with the business. The impression that was sought to be given appeared to me to be that Mr. Taouk no longer had any connection with the premises or the business bein

g conducted there. However, any such impression was dispelled when, after Mr. Taouk had concluded his evidence, the agent who served the subpoenas was called by the applicant to identify Mr. Taouk as the person he encountered at the premises on 12 October 1988 representing himself to be the Manager and to go by the name Louis Taouk. At the same time he falsely represented that he was neither Elias Taouk nor Elias Romanous, the second and third respondents to these proceedings.

Mr. Taouk's council had the opportunity when his client was in the witness box to obtain from him by cross examination explanations of matters contained in the applicant's affidavits that tended to implicate him in the conduct of whatever activities were carried on at the premises but counsel refrained. I do not criticise counsel for refraining, but it makes the Court less reluctant to act upon the implications when the opportunity to explain them away is allowed to pass.

The firstnamed of the first respondents said on affidavit that the premises were leased by them through a Managing Agent, the lease to E & R Trading already mentioned being the current lease. He said that they had received no communication from the Council that the premises were being used for an unlawful purpose and had never consented to the use of the premises for a purpose not authorised by the Council. On 16 June 1988, after the proceedings against them had been commenced, their solicitors wrote a letter addressed to "The Proprietor E & R Trading" alleging that the evidence to be relied on by the Council disclosed serious breaches of the lease and giving notice that under a term of the lease, the same was thereby varied to a periodic lease from week to week. The letter stated that unless satisfactory evidence was forthcoming that the premises were not being used without the necessary consent, a Notice to Quit would be issued. The first respondents offered no evidence that this request had been met or tha

t any Notice to Quit had been given.

The conclusions which now follow are based on the evidence before the Court and the inferences I draw from the facts I have found.

From about November 1985 to the present the subject premises have been used from time to time, if not continuously, for the purpose of conducting a brothel or for the dual purpose of conducting a brothel and a call girl service. These purposes have been thinly disguised by the use of euphemistic titles such as "Health and Therapeutic Centre", "Health Studio", "Escort Agency", "Health Studio and Fitness" and "a place for entertainment of male and female persons". This last one, simple, amusing and, perhaps, original, accompanied a bold attempt to take advantage of cl.7(2)(b) of SEPP No. 4, to which I must return. Whichever title or description was used the intent was to signify that the premises were a place used for prostitution or soliciting for prostitution.

There is the unlikely possibility that for a time in 1986 Mr. Taouk tried his hand at importing food and games under the business name E. & R. Trading, unlikely because of the history of his connection with the premises. However, I have no doubt that from March 1987 when "East Side Health Studio" and "East Side Escort Agency" were registered in the name of Elias Romanous by Mr. Taouk's accountant for the business of an Escort Agency, the business of both a brothel and a call girl service operated at and from the premises.

I infer from the differentiation between "Studio" and "Escort Agency" made by the advertising on the match box described in para. 17 above, the advertising contained under "Studio" in the book matches referred to in paras. 7 and 11 and the advertising in the "Truth" under "Escorts and Studio" mentioned in para. 15 that, although the titles were used interchangeably as to the services offered, "Studio" was meant to imply that the services could be had at the premises and "Escort Agency" implied that they could be made available away from the premises, the services offered in either case being sexual intercourse with a woman for reward.

The advertising in the "Southern Courier" in May 1987, referred to in para. 8, whilst still indicating both kinds of service were available at the premises, was a departure from the pattern with which Mr. Taouk's business names are connected by the evidence and lend some support to his claim that for a time in that year he let someone else in to conduct the business. The signatures of Masri on the lease in December 1987 also lend some support to his claim that he allowed Mr. Masri to take over the business for a time from October 1987 but the lease was taken in the registered business name of E. & R. Trading of which Mr. Taouk is the registered owner.

Then in February, July and October 1988 the advertising of the premises by book matches, "Truth" and match boxes continued the use of the descriptions "Studio" and "Escort Agency" in association with the word "Eastside" (or "East Side") that appear to have begun with the registration of those titles in the business names registered in Mr. Taouk's name by his accountant in March 1987. I conclude that the premises have continued to be used throughout the year for the same purposes of a brothel and call girl service notwithstanding the commencement of these proceedings.

As to whether the respondents or any of them were responsible for the use being made of the premises, I am satisfied that, if not continuously since 1985, from time to time in and since that year and, relevantly, at the time he was joined as second and third respondents and thereafter up to the hearing, Mr. Taouk was responsible. I conclude on the evidence and from the facts found that he was using the subject premises for the purposes I have described and was himself conducting or responsible for the operation of the business or activities occurring at the premises at material times. His admission to the agent serving subpoenas on 12 October last that he was the Manager whilst at the same time endeavouring to conceal his true identity fixes him directly with the conduct of the business being carried on at the premises as well as showing that he felt he had reason to hide the nature of his connection with it. I would conclude that he was the "proprietor" of the business at that time as well as manager and inf

er that he has had the same connection with it in and from 1985.

The position taken by the first respondents in the litigation is ambiguous. They have not expressly denied knowledge of the activities occurring on their property. They say, by way of the affidavit to which I referred (only part of which was read as evidence in the case), that they had not had any communication from the Council that the premises were being used for an unlawful purpose and had not consented to any unauthorised use. They have not provided evidence that they acted on the letter they wrote to the tenant, leaving open the possibility that the letter may have been written for the sake of appearances. They lent themselves to the purported notice pursuant to SEPP No. 4 of intent to alter the use of the premises to a place for entertainment of male and female persons which use, if not to be made by themselves, must as owners of the premises have excited their curiosity and led to inquiries by them unless they already knew or suspected what was intended. Having regard to this notice and the length of t

ime over which the activities have been going on, I draw the inference on the balance of probabilities that they knew or at least suspected that unauthorised, if not unlawful, uses were being made of their property and chose acquiescence in preference to objection on their part.

It is a common law misdemeanour to use premises for the purpose of conducting a brothel. It is a statutory offence (l) to use for the purposes of prostitution or of soliciting for prostitution any premises held out as being available for the provision of, amongst other things, massage facilities or physical exercise or services of a like nature; (2) for an owner, occupier or manager or a person assisting in the management of premises held out as available for the provision of such activities knowingly to suffer or permit premises to be used for the purposes of prostitution or of soliciting for prostitution; and (3) for a person in any manner to advertise that any premises are used or available for use or that any person is available for the purposes of prostitution: Prostitution Act, 1979, ss.6, 7 and 8; repealed and replaced by Summary Offences Act, 1988, ss.16, 17, 18. These offences would be committed by providing premises for arrangements to be made for sexual acts to take place away from the premises as

well as at the premises: Samuels v. Bosch (1972) 127 C.L.R. 517.

It was submitted for the Council that regardless of the zoning of the land the use of the premises for the purpose of conducting a brothel was unlawful; but, accepting that to be so, as counsel for Mr. Taouk was quick to point out, it does not follow that this Court has jurisdiction to grant an injunction on that ground. It may be that a Council may be justified in refusing development consent to a use of premises that the Council knew or believed to be clearly unlawful by the criminal law, whatever the zoning. I do not have to consider that question. The question here is whether the Council is entitled to have injunctive relief from this Court against these respondents. This Court's jurisdiction in the present case arises under s.20(2)(a), (3) of the Land and Environment Court Act, 1979 and s.124 of the Environmental Planning and Assessment Act, 1979 and depends ultimately upon finding that the respondents are acting in breach of s.76 of the latter, that is to say, carrying out development on the premises co

ntrary to restrictions contained in an environmental planning instrument. It is the unlawful use of land in this sense that this Court may restrain.

There can be no doubt that the use being made of the subject premises was and is unlawful in the relevant sense. At all material times development was restricted by an environmental planning instrument, i.e., I.D.O. No. 19 to which I have already referred. The Council has never consented to the use of the premises for any of the purposes for which I have found the premises to be used. None of such uses qualifies as the kind of shops or commercial premises that are permitted subject to conditions which the Council may impose under the I.D.O. So far as material, "shop" is defined in the I.D.O. to mean a building or place used for the purpose of selling, exposing for sale or offering for sale by retail goods, merchandise or materials and "commercial premises" are limited to those listed in Schedule 1 of the I.D.O., none of which apply to the present case. None of the uses of the premises would, in my opinion, answer the description of any of the categories of development listed in the I.D.O. as development which

may be carried out only with the consent of the Council. I need not list them here. The result is that all of the uses in question are prohibited and it would not be open to the Council to grant development consent for the premises to be used for any of them.

All respondents raised, by the issues filed, the question whether the Council's consent was required anyway, having regard to the notice given under cl.7(2) of SEPP No. 4 which states:-

"7(2) Subject to subclause (5), where -

(a) a building is lawfully used, or has been lawfully constructed to be used, for the purposes of commercial premises of a particular kind; and

(b) the building could not, but for this clause, be used for the purposes of commercial premises of another kind, except with development consent being obtained therefor,

the building may without the necessity for development consent being obtained, upon a sufficient written notice being given to the council, be used for the purposes of commercial premises of another kind."

The provisions of subclause (5) need not be considered although they might be thought to be possibly relevant in this case. The object of the notice was to rely upon the Council approved, and, therefore, supposedly lawful, use of the premises as commercial premises, i.e., as an office, to change the use to commercial premises of another kind, i.e., "a place for entertainment of male and female persons", without the consent of the Council.

SEPP No. 4, by cl.2(2) adopts Part II of the Environmental Planning and Assessment Model Provisions, 1980 under which, in cl.4, commercial premises means "a building or place used as an office or for other business or commercial purposes" but does not include a building or place elsewhere specifically defined in the clause or a building or place used for a purpose elsewhere specifically defined in the clause.

The Council took the view that the other kind of use proposed would make the premises a "place of assembly", which was elsewhere specifically defined in the clause as meaning various places of assembly for public entertainment such as public halls, theatres, music and concert halls and the like. Another possible view put forward at the hearing was that the proposed new use might be regarded as a "recreational facility", also elsewhere specifically defined in the clause to mean such things as a building or place used for indoor recreation, health studio, fun parlour or one of like character used for recreation but not being a "place of assembly". If either of these two views were correct the proposed new use would not fall within the definition of commercial premises and so would not be made lawful by the notice. Council's consent could be given under the IDO to a "place of assembly" but not to "a recreation facility".

I would reject the view that the proposed new use might be regarded as a"place of assembly". The other view, a "recreational facility", has more appeal and is verbally closer to the mark but I would reject that also. In my opinion the use of premises for the purposes of conducting a brothel and/or a call girl service is not a use for business or commercial purposes within the meaning of the definition of "commercial premises" in the Model Provisions. Although some may consider such a use of premises to be commercial in the sense that a personal service is provided for financial gain, I think that, by tradition, the general view would be that the use of premises for such purposes is in a class all by itself, a class that sets it apart from all other kinds of pursuit of financial reward. I do not think it would occur to one asked to make an exhaustive list of uses of premises as commercial premises to include "conducting them for the purposes of prostitution". Prostitution is said to be the oldest of all profes

sions and there are numerous words and phrases commonly used to describe the houses or places where it is practised; but I think that "commercial premises" has never been one of them either in thought or expression.

As I am satisfied that the real purpose attempted to be camouflaged by the euphemism "for entertainment of male and female persons" was prostitution and as, in my view, the use of premises for that purpose is not a use as commercial premises, it follows that the notice given under SEPP No. 4 was ineffective to avoid the need for obtaining development consent from the Council for the use made of the premises on and after the date of giving the notice.

For Mr. Taouk, it was submitted that there were reasons for refusing relief in the exercise of the Court's discretion. There was no evidence of any actual nuisance of any kind or objectionable activity outside of premises having occurred during the time of Mr. Taouk's connection with them. There was no evidence of any complaints having been received by the Council. Counsel for the applicant sought to discount the absence of complaints by suggesting that local residents may be reluctant or fearful of complaining in case of retaliation of some sort or to avoid publicity.

The Council's Director of Planning and Environment, as a qualified Town Planner, gave expert evidence that from a planning point of view the present use of the premises was likely to have an adverse effect on the existing and likely future amenity of the neighbourhood on account of the proximity of the residential area at the rear fronting Nilsson Lane, the availability of access from that lane, the nature of the use and the probable hours of operation causing noise and disturbance to residents when patrons enter and leave the premises. The evidence also asserted that the use was not in the public interest as being prohibited by law and possibly having an undesirable social impact upon the residents in the locality, particularly children. These views were not strengthened by any practical experience by the witness of the effect upon this or any similar neighbourhood of the conduct of a brothel or call girl service. The views were entirely theoretical and not entitled, I think, to much weight on the question w

hether in this case there has been or is any substantial detriment or threat to the amenity of the neighbourhood.

However, I do not think that that is a question I have to decide. Although the criminal unlawfulness of the activities is not a ground by itself for the exercise of this Court's power to grant injunctive relief, it is a matter that the Court may not ignore when asked to exercise its discretion against granting the relief. In my opinion, in the present state of the law regarding prostitution, it is not open to the Court or, if open, is not a proper exercise of the Court's discretion to refuse relief against a breach of the planning laws in order to permit a use of premises that is not only unauthorised by those laws but also criminal to be continued.

The Court will therefore grant the injunctive relief sought by the Council. The first respondents will be included by reason of their apparent acquiescence in the continued use of the premises for the purposes of prostitution after their notice had been drawn to it by the Council and they had had but failed to take the opportunity to take action to terminate the occupancy of those responsible.

The Council sought a declaration that the second and third respondents had used the premises for the unauthorised use as a brothel or health studio. It is unnecessary and, in my view, an inappropriate use of the Court's power to grant declaratory relief merely to declare the facts upon which injunctive relief is based when the Court is bound to make and to express in its reasons for judgment those very facts or other facts that found the relief. It is different when the declaration sought declares rights or facts which establish or give effect to rights of a party. I see no purpose of that kind to be served by the declaration sought here and so decline to make it.

There will be an order for costs against the second and third respondents. I will give the applicant and the first respondents an opportunity to be heard on the question of costs as between those parties.

Order in accordance with para. 2 of the amended Application filed 6 May 1988.

Order that the second and third respondents pay the applicant's costs of the proceedings as regards them from 6 May 1988.

I will hear counsel on the date for arguing the other costs.