De Cue Pty Ltd v City of Sydney Council
[2007] NSWCA 41
•5 March 2007
New South Wales
Court of Appeal
CITATION: De Cue Pty Ltd v City of Sydney Council [2007] NSWCA 41 HEARING DATE(S): 5 March 2007
JUDGMENT DATE:
5 March 2007JUDGMENT OF: Ipp JA; Tobias JA; McColl JA EX TEMPORE JUDGMENT DATE: 5 March 2007 DECISION: Appeal dismissed with costs CATCHWORDS: Environment and planning – Building control – Restricted Premises Act 1943 s 17 – Manner in which a brothel is operated – Whether personal fault on the part of the owner or occupier of a brothel is required for an order under s 17(a) where the brothel is operating lawfully within a development consent LEGISLATION CITED: Restricted Premises Act 1943
Supreme Court Act 1970CASES CITED: None PARTIES: De Due Pty Limited
City of Sydney CouncilFILE NUMBER(S): CA 40838/06 COUNSEL: A: M Sahade
R: M Craig QCSOLICITORS: A: Comino Prassas Solicitors, Bondi Junction
R: Maddocks Lawyers, SydneyLOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): L&E 40301/06 LOWER COURT JUDICIAL OFFICER: Preston CJ LOWER COURT DATE OF DECISION: 6 December 2006 LOWER COURT MEDIUM NEUTRAL CITATION: City of Sydney Council v De Cue Pty Ltd [2006] NSWLEC 763
CA 40838/06
Monday 5 March 2007IPP JA
TOBIAS JA
McCOLL JA
Judgment
1 THE COURT: This appeal is dismissed with costs. The Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to s 45(4) of the Supreme Court Act 1970, the Court’s reasons in short form are as follows.
2 In the Court’s view, the primary judge’s decision is clearly correct both in terms of his findings of fact, which are not the subject of challenge, as well as his construction of the provisions of s 17 of the Restricted Premises Act 1943 (the RPA).
3 The essence of the appellant’s case, as the Court understands it, is that it was not open to the Land and Environment Court as a matter of construction of s 17(1) to order a particular owner or operator of a brothel not to allow or to use the particular premises as a brothel merely because the existence of the brothel has the external impacts referred to in s 17(5), which are found as a matter of fact to be significant and, therefore, unacceptable.
4 Although there is no doubt that s 17(5) directs attention to the manner of operation of the brothel, it does so on an objective basis, and any finding of personal fault on the part of any particular owner or occupier is irrelevant. What is relevant is the particular manner in which the brothel is operated in terms of the nature of the services it offers, the type of clientele it attracts, the sensitivities of the location in which the brothel is operated and other matters of that nature to which the primary judge referred in [64] and [96] of his judgment. A determination must then be made taking into account the considerations referred to in s 17(5) as to the external impacts caused by these characteristics of its operations.
5 In any event, in [96] of his judgment the primary judge found that the incidents complained of by the local residents were in fact attributable to the manner in which the appellant operated the brothel. To the extent to which fault might be required, it seems to the Court that fault was thus found. However, in the Court’s view, the primary judge was correct in finding that personal fault on the part of the owner or occupier of a brothel is not a precondition to the making of an order under s 17(1) of the Act: cf [110] of his Honour’s judgment.
6 It was submitted by the appellant that it would be an absurdity for an order to be made under s 17(1) where there was in place a development consent that permitted the use of the relevant land for the purposes of a brothel so that any subsequent operator of a brothel lawfully on the premises would then be subject to the making of a further order under s 17(1) of the RPA. The Court sees nothing absurd in such a scenario. Whether or not an order is made against a subsequent owner or occupier will depend upon the facts of the particular case, including the manner of operation of the brothel by that particular owner or occupier.
7 In the present case the brothel was operated for many years prior to the present appellant taking it over in October 2005 in a manner which his Honour found did not cause the unacceptable external impacts which the operation of the brothel by the appellant has caused. Accordingly, it does not necessarily follow that a subsequent operator will have the same difficulties that the current appellant has been unable to overcome.
8 Finally, the appellant submitted that an order could not be made under s 17 where the owner or occupier was operating the brothel in the most reasonable and efficient manner possible. Even if this was so – and the primary judge did not so find – it is an irrelevant consideration if otherwise the nature of the particular operation of the brothel is causing the impacts referred to in s 17(5).
9 The appellant submitted that even if its appeal was dismissed, it was entitled to present the appeal and, therefore, it should be granted a further extension of the stay granted by the primary judge which expires on 9 April 2007. It thus seeks a stay of a further four months. The respondent opposes this. There is no doubt that the appellant had a right to pursue the appeal but in the Court’s view it was doomed to fail and the appellant ought to have been aware of the high risk of failure. It should therefore have at least conditionally put in place arrangements to meet the deadline of the stay.
10 The Chief Judge’s judgment was handed down on 6 December 2006 and a notice of appeal without appointment was filed on 21 December 2007. A notice of appeal with appointment was not filed until 7 February 2007, when an application was made to expedite the hearing of the appeal, which was granted no doubt because of the fact that the stay would expire on 9 April. The Court sees no reasons or circumstances which would justify any further extension of that stay with the result that the application to extend the stay is refused.
11 The order of the Court is, therefore, that the appeal is dismissed with costs.