Ryde City Council v Zuger

[1999] NSWLEC 172

Land and Environment Court

of New South Wales

CITATION:	Ryde City Council v Zuger & Ors [1999] NSWLEC 172
PARTIES	APPLICANT Ryde City Council
FIRST RESPONDENT Alois Wilhelm Zuger SECOND RESPONDENT Jonathon Wang THIRD RESPONDENT Ling Zhang
NUMBER:	40217 of 1998
CORAM:	Lloyd J
KEY ISSUES:	Injunctions and Declarations :- discretionary considerations
LEGISLATION CITED:	Ryde Local Environmental Plan No.88
DATES OF HEARING:	05/24/1999
EX TEMPORE JUDGMENT DATE:	05/24/1999
LEGAL REPRESENTATIVES:	APPLICANT: Mr I Hemmings (Barrister) SOLICITORS Hill Thomson & Sullivan FIRST RESPONDENT: Mr N Potts (Barristers) SECOND & THIRD RESPONDENTS Mr M Campbell (Barrister)

JUDGMENT:

IN THE LAND AND Matter No: 40217 of 1998

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES 24 May 1999

RYDE CITY COUNCIL

Applicant

v

ALOIS WILHELM ZUGER

First Respondent

JONATHAN WANG

Second Respondent

LING ZHANG

Third Respondent

JUDGMENT

1. In these proceedings the applicant, the council, seeks a declaration that the respondents are using the property known as 22 Constitution Road, Meadowbank, as commercial premises; secondly, a declaration that the respondents are using the same premises as a brothel; and thirdly for orders restraining each such use.

2. The subject premises are within an Industrial 4(a) zone under the Ryde Planning Scheme Ordinance , in which zone the use of premises for commercial purposes is a prohibited use.

3. On 16 April 1998 the first respondent leased the premises, 22 Constitution Road, Meadowbank to the second and third respondents for a use described in the lease as an acupuncture clinic. That is a commercial use. It is a use which is prohibited. Nevertheless, the second and third respondents, on 17 August 1998, lodged a development application to use the premises for a brothel and massage/relaxation centre. That development application was refused on 18 August 1998 on the ground that it was a commercial use and was thus prohibited within the zone.

4. On 3 May 1999 the second respondent became aware of a zoning change which permitted brothels within the Industrial 4(a) zone. On 30 April 1999 Ryde Local Environmental Plan No 88 was made, under which brothels became a use which was permissible with consent in the zone. On 17 May 1999, the second respondent lodged a further development application for a brothel. On 20 May 1999, the third respondent lodged an appeal in this Court against the determination of the development application which had been lodged on 17 August 1998.

5. The respondents consent to the making of the declarations and orders sought, but seek a postponement thereof until after the development lodged on 17 May 1999 has been determined by the applicant and until after the appeal in this Court in relation to the previous development application has been determined.

6. The subject premises, although located within an industrial area, are directly opposite a residential area within which and some 250 metres from the subject premises is a school; and some 350 metres from the subject premises is a church. There is evidence of complaints having been received by the applicant from residents relating to the use of the premises as a brothel.

7. The considerations which apply the exercise of the court’s discretion in a case such as this are unconfined. Some guidance can be taken, however, from the fact that the development control plan which the council has made regulating the use of brothels, refers to the need to take into consideration the location of the brothel and its proximity to (inter alia) educational establishments, places of public worship and residential development.

8. In Warringah Shire Council v Sedevic (1987)10 NSWLR 335, the Court of Appeal usefully set out the considerations which ought to apply when equitable relief is sought in cases where there has been an infringement of planning controls. Mahoney JA (at 346) referred to the fact that the Court will take cognisance of the general harm resulting from breach of the statute and will not normally require proof of specific harm for an injunction to go at the suit of a local council. Mahoney JA also said that courts have, under various planning regimes, emphasised the significance of compliance with planning requirements and the danger of allowing individual hardship in particular cases to erode the general operation of planning controls.

9. In the present case there is no evidence from the second and third respondents of any individual hardship on their part if the planning instrument is enforced. Moreover, the first and second respondents have thus far demonstrated that they have little regard for the need to comply with a planning instrument.

10. In my view the fact that the premises are proximate to residences, a school and a church, suggests that the planning instrument ought to be enforced. Accordingly, the orders sought will be made.

11. The formal orders are declarations as in paragraphs 1 and 2 of the amended application and orders 3 and 4 of the amended application.

12. I also order the respondents to pay the applicant's costs of an incidental to these proceedings.

13. The exhibits may be returned.