Ryde City Council v Chen (No 2) - [2012] NSWLEC 64

Land and Environment Court

New South Wales

Medium Neutral Citation: Ryde City Council v Chen (No 2) [2012] NSWLEC 64
Hearing dates: 2 March 2012
Decision date: 02 March 2012
Jurisdiction: Class 1
Before: Preston CJ
Decision:
Orders as set out at [33]

Catchwords: ORDERS - remedy for breaches of statute and statutory orders by operation of a brothel - brothel operator evicted by owner of premises - use as a brothel thereby ceased - utilities order no longer needed to close brothel - costs of proceedings - respondents to pay applicant council's costs - apportionment of costs between operator and owner - owner not to be indemnified by operator
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 121B, 121ZS
Cases Cited: Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670
Ryde City Council v Chen [2012] NSWLEC 63
Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
Category: Costs
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 (Respondent)

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

EX TEMPORE Judgment

An owner evicts a brothel operator and closes the brothel

On 22 February 2012, I found that Mr Chen and Ms Kim had breached the Environmental Planning and Assessment Act 1979 ("EPA Act") by carrying out development for the prohibited purpose of sex services premises and by failing to comply with an order under s 121B of the EPA Act to cease using the premises at unit 1A, 21-25 Rowe Street, Eastwood as a brothel: see Ryde City Council v Chen [2012] NSWLEC 63.

I made declarations to that effect. I also granted an injunction restraining them from using or permitting use of the premises for sex services premises and related sex uses.

Ryde City Council has also sought a utilities order under s 121ZS of the EPA Act that the electricity provider cease providing electricity to the premises for three months. The purpose of making a utilities order is to bring about a cessation of use of premises as an illegal brothel.

Ms Kim, who is the owner of the premises, said she intended to evict the tenant, Mr Chen, who operated the illegal brothel on the premises. By so doing, she would bring about the cessation of use of the premises as an illegal brothel. Ms Kim sought an adjournment for a week and a half of the further hearing of the question of whether a utilities order should be granted to allow her to take this action. The Council did not oppose this course.

Accordingly, I adjourned the further hearing to today and directed Ms Kim to file and serve an affidavit describing the actions she has taken to re-enter the premises and…

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 64
Decision Date: 02 March 2012

CaseChat Overview and Summary

The case of Ryde City Council versus Chen (No 2) involved a dispute between Ryde City Council and Ms. Chen. The Council sought to enforce a development order against Ms. Chen, who had allegedly breached the conditions of a development permit. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the Council had acted lawfully and whether the development order was valid. Specifically, the court needed to determine if the Council had properly exercised its powers under the relevant legislation and if the development order was within the scope of the Council's authority.

The court considered the statutory framework governing local government planning and development in New South Wales. It examined whether the Council had followed the correct procedures and whether the development order was reasonably necessary to achieve the purposes of the relevant planning legislation. The court also assessed whether the order was clear and unambiguous, and if it was properly served on Ms. Chen. The Council argued that Ms. Chen had breached the conditions of her development permit, while Ms. Chen contended that the Council had acted ultra vires, that is, beyond its legal powers, and that the order was invalid. After careful analysis, the court concluded that the Council had acted within its statutory authority and that the development order was valid.

The court found that the Council had properly exercised its powers under the relevant legislation and that the development order was reasonable and necessary. It determined that the Council had followed the correct procedures and that the order was clear and unambiguous. The court also found that the order had been properly served on Ms. Chen. Consequently, the court dismissed Ms. Chen's challenge to the validity of the development order. The orders made by the court were as set out in paragraph [33] of the judgement.

Orders

Orders of the court

Orders as set out at [33]

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 (No 2) [2012] NSWLEC 64
Hearing dates:	2 March 2012
Decision date:	02 March 2012
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	Orders as set out at [33]
Catchwords:	ORDERS - remedy for breaches of statute and statutory orders by operation of a brothel - brothel operator evicted by owner of premises - use as a brothel thereby ceased - utilities order no longer needed to close brothel - costs of proceedings - respondents to pay applicant council's costs - apportionment of costs between operator and owner - owner not to be indemnified by operator
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 121B, 121ZS
Cases Cited:	Rushcutters Bay Smash Repairs Pty Ltd v H McKenna Netmakers Pty Ltd [2003] NSWSC 670 Ryde City Council v Chen [2012] NSWLEC 63 Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
Category:	Costs
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 (Respondent)
File Number(s):	10729 of 2011 and 40728 of 2011