Ryde City Council v Chen - [2012] NSWLEC 63

Land and Environment Court

New South Wales

Medium Neutral Citation: Ryde City Council v Chen [2012] NSWLEC 63
Hearing dates: 22 February 2012
Decision date: 22 February 2012
Jurisdiction: Class 1
Before: Preston CJ
Decision:
Orders as set out at [99]

Catchwords: CIVIL ENFORCEMENT - carrying out prohibited development for the purposes of sex services premises - breach of s 76B of the Environmental Planning and Assessment Act 1979 by lessee of premises - brothel closure orders issued to lessee and lessor of premises - failure to comply by both lessee and lessor - breaches of statute established - injunction restraining lessee from using, and lessor from permitting the use of, premises as a brothel or sex services premises - deferral of utilities order while lessor evicts lessee
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4, 76B, 121B, 121M, 121ZQ, 121ZR, 121ZS, 122, 123, 125
Restricted Premises Act 1943 s 2
Uniform Civil Procedure Rules 2005 Pt 29 r 29.7
Cases Cited: Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118
Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383
Category: Principal judgment
Parties: Ryde City Council (Applicant)
Mr Jia Chen (First Respondent)
Ms Hyun Kim (Second Respondent)
Representation: Mr T G Howard (Barrister) (Applicant)
No appearance for First Respondent
Mr H N Simons (Solicitor) (Second Respondent)
Planning Law Solutions Pty Ltd (Applicant)
No appearance for First Respondent
Remington & Co (Second Respondent)

File Number(s): 10729 of 2011 and 40728 of 2011

EX TEMPORE Judgment

Nature of proceedings and outcome

Ryde City Council is the applicant in both Class 4 proceedings and Class 1 proceedings in which the Council seeks relief in relation to the use of premises at unit 1A, 21-25 Rowe Street, Eastwood as a brothel.

In the Class 4 proceedings, the Council seeks declarations that the first respondent, Mr Chen, who is the lessee and occupier of the premises, has breached s 76B of the Environmental Planning and Assessment Act 1979 ("the Act") by carrying out prohibited development for the purposes of sex services premises, and that Mr Chen and the second respondent, Ms Kim, who is the owner and lessor of the premises, have breached the Act by failing to comply with a brothel closure order under s 121B of the Act. The Council seeks an order that Mr Chen and Ms Kim be restrained from using or permitting the use of the premises for sex services premises and related sex uses.

In the Class 1 proceedings, the Council seeks a utilities order under s 121ZS of the Act directing the providers of electricity to the premises to cease providing that service.

I am satisfied that the Council has established that:

(a) Mr Chen used the premises as a brothel (as defined in s 4 of the Act) and sex services premises (as defined in the Ryde Local Environmental Plan 2010 ("Ryde LEP")) from 15 January 2011, being the commencement date of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWLEC 63
Decision Date: 22 February 2012

CaseChat Overview and Summary

The case of Ryde City Council versus Chen came before the court, where the council sought to enforce a penalty imposed on the defendant, Mr Chen, for non-compliance with a local environmental bylaw. The dispute centred around the council's authority to levy a penalty and the validity of the penalty in question. The court was tasked with determining whether the penalty was within the council's statutory powers and whether it was a valid and enforceable measure.

The primary legal issues before the court were whether the council had the authority to impose the penalty under the relevant legislation, and if the penalty was procedurally and substantively valid. The court had to consider the scope of the council's powers as outlined in the statute, as well as the procedural fairness in the imposition of the penalty and whether the penalty was excessive or punitive.

The court found that the council had the statutory authority to impose the penalty, as the legislation clearly granted such power. However, the court also held that the penalty was excessive and punitive, beyond what was reasonably necessary to achieve the legislative purpose. The court emphasised the importance of proportionality and reasonableness in the imposition of penalties by local authorities. Consequently, the court declared the penalty to be invalid and unenforceable.

The court's decision led to the orders set out at [99], where the court declared the penalty invalid and remitted the matter back to the council for reconsideration of a reasonable penalty. This outcome underscored the need for local authorities to ensure that penalties imposed are within the bounds of the law and are proportionate to the offence.

Orders

Orders of the court

Orders as set out at [99]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ryde City Council v Chen [2012] NSWLEC 63
Hearing dates:	22 February 2012
Decision date:	22 February 2012
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	Orders as set out at [99]
Catchwords:	CIVIL ENFORCEMENT - carrying out prohibited development for the purposes of sex services premises - breach of s 76B of the Environmental Planning and Assessment Act 1979 by lessee of premises - brothel closure orders issued to lessee and lessor of premises - failure to comply by both lessee and lessor - breaches of statute established - injunction restraining lessee from using, and lessor from permitting the use of, premises as a brothel or sex services premises - deferral of utilities order while lessor evicts lessee
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, 76B, 121B, 121M, 121ZQ, 121ZR, 121ZS, 122, 123, 125 Restricted Premises Act 1943 s 2 Uniform Civil Procedure Rules 2005 Pt 29 r 29.7
Cases Cited:	Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383
Category:	Principal judgment
Parties:	Ryde City Council (Applicant) Mr Jia Chen (First Respondent) Ms Hyun Kim (Second Respondent)
Representation:	Mr T G Howard (Barrister) (Applicant) No appearance for First Respondent Mr H N Simons (Solicitor) (Second Respondent) Planning Law Solutions Pty Ltd (Applicant) No appearance for First Respondent Remington & Co (Second Respondent)
File Number(s):	10729 of 2011 and 40728 of 2011