Willoughby City Council v Chen - [2014] NSWLEC 92

Land and Environment Court

New South Wales

Medium Neutral Citation: Willoughby City Council v Chen [2014] NSWLEC 92
Hearing dates: 3 July 2014
Decision date: 03 July 2014
Jurisdiction: Class 4
Before: Sheahan J
Decision:
The Court:
(1)Declares that the respondent has not complied with Order 2497 issued by the applicant on 22 February 2013 to cease using the Premises, as a brothel or for any related sex uses ("Brothel Closure Order") and, accordingly, is in breach of the Environmental Planning and Assessment Act 1979 ("EPA Act").
(2)Orders that the respondent immediately comply with the Brothel Closure Order.
(3)Declares that the respondent has carried out development in breach of sections 76A and/or 76B of the EPA Act being the use of the Premises as a brothel where such use:
(a)up to and including 30 January 2013 was prohibited by clauses 7J(2)(c) and 36B of the Sydney Regional Environmental Plan No 5 (Chatswood Town Centre) and section 76B of the EPA Act; and
(b)from and including 31 January 2013 was prohibited by the Land Use Table of the Willoughby Local Environmental Plan 2012.
(4)Orders that the respondent, by her employees, servants or agents be restrained from using, causing or permitting the use of the Premises;
(c)as a brothel; or
(d)for related sex uses.
(5)Orders that the respondent pay the applicant's costs of these proceedings.
(6)Exhibit W1 may be returned to Council.

Catchwords: CIVIL ENFORCEMENT: Brothel and sex uses at premises without consent - use and advertising prohibited - Council's closure order disobeyed - use alleged to have ceased.
Legislation Cited: Environmental Planning and Assessment Act 1979
Restricted Premises Act 1943
Willoughby Local Environmental Plan 2012
Cases Cited: Willoughby City Council v Spa & Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101
Category: Principal judgment
Parties: Willoughby City Council (Applicant)
Xia Xia Chen (Respondent)
Representation: Mr N Eastman, barrister with
Ms N Hammond, barrister (Applicant)
Mr J Maspero, solicitor (Respondent)
King & Wood Mallesons (Applicant)
James Maspero, solicitor (Respondent)

File Number(s): 40184 of 2014

Judgment

These class 4 proceedings were commenced by Council on 26 March 2014 to enforce a Brothel Closure Order issued on 22 February 2013.

Council seeks declarations regarding breach of that Order and ongoing breach of the planning laws, and orders (1) requiring immediate compliance with the order, and (2) restraining the use of premises, known as 15/47 Neridah St, and accessed at 15 Oscar St, Chatswood, for the purposes of a brothel, or "for related sex uses".

The respondent has relocated to China, but her solicitor, Mr James Maspero, appeared for her today, and swore an affidavit on her behalf. He received his instructions only in April of this year, obtained a copy of Council's brief, and advised Ms Chen through her agent, "Angela", on 9 May 2014, to close the premises immediately. He inspected again on 18 May, and took further steps to effect closure of the offending use.

Mr Maspero accepted the written and oral submissions made by Mr Eastman on behalf…

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: [2014] NSWLEC 92
Decision Date: 03 July 2014

CaseChat Overview and Summary

The case of Willoughby City Council v Chen was heard in the Supreme Court of New South Wales. The Council brought an action against Chen, the respondent, for breaches of planning laws relating to the use of her property as a brothel. The Council sought declarations that Chen had failed to comply with a closure order and had engaged in unauthorised development. They also sought compliance orders and costs.

The legal issues the Court had to determine included whether Chen had breached the Brothel Closure Order, and whether her use of the premises as a brothel constituted development in breach of the Environmental Planning and Assessment Act 1979 and the relevant planning instruments. The Court also needed to decide whether the Council's orders for compliance and costs were appropriate.

The Court found that Chen had not complied with the Brothel Closure Order and had continued to operate the premises as a brothel, which was prohibited under the relevant planning schemes. The Court held that this constituted a breach of the EPA Act and the planning instruments. The Court granted the Council's declarations, ordering Chen to comply with the Brothel Closure Order and refraining her from using the premises for any brothel or sex-related activities. The Court also ordered Chen to pay the Council's costs of the proceedings.

The final orders of the Court included declaring Chen's non-compliance with the Brothel Closure Order, ordering her to comply with the Order, prohibiting her from using the premises as a brothel or for related sex uses, and ordering her to pay the Council's costs. Additionally, the Court ordered the return of exhibit W1 to the Council.

Orders

Orders of the court

The Court:

(1)Declares that the respondent has not complied with Order 2497 issued by the applicant on 22 February 2013 to cease using the Premises, as a brothel or for any related sex uses ("Brothel Closure Order") and, accordingly, is in breach of the Environmental Planning and Assessment Act 1979 ("EPA Act").

(2)Orders that the respondent immediately comply with the Brothel Closure Order.

(3)Declares that the respondent has carried out development in breach of sections 76A and/or 76B of the EPA Act being the use of the Premises as a brothel where such use:

(a)up to and including 30 January 2013 was prohibited by clauses 7J(2)(c) and 36B of the Sydney Regional Environmental Plan No 5 (Chatswood Town Centre) and section 76B of the EPA Act; and

(b)from and including 31 January 2013 was prohibited by the Land Use Table of the Willoughby Local Environmental Plan 2012.

(4)Orders that the respondent, by her employees, servants or agents be restrained from using, causing or permitting the use of the Premises;

(c)as a brothel; or

(d)for related sex uses.

(5)Orders that the respondent pay the applicant's costs of these proceedings.

(6)Exhibit W1 may be returned to Council.

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:	Willoughby City Council v Chen [2014] NSWLEC 92
Hearing dates:	3 July 2014
Decision date:	03 July 2014
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	The Court: (1)Declares that the respondent has not complied with Order 2497 issued by the applicant on 22 February 2013 to cease using the Premises, as a brothel or for any related sex uses ("Brothel Closure Order") and, accordingly, is in breach of the Environmental Planning and Assessment Act 1979 ("EPA Act"). (2)Orders that the respondent immediately comply with the Brothel Closure Order. (3)Declares that the respondent has carried out development in breach of sections 76A and/or 76B of the EPA Act being the use of the Premises as a brothel where such use: (a)up to and including 30 January 2013 was prohibited by clauses 7J(2)(c) and 36B of the Sydney Regional Environmental Plan No 5 (Chatswood Town Centre) and section 76B of the EPA Act; and (b)from and including 31 January 2013 was prohibited by the Land Use Table of the Willoughby Local Environmental Plan 2012. (4)Orders that the respondent, by her employees, servants or agents be restrained from using, causing or permitting the use of the Premises; (c)as a brothel; or (d)for related sex uses. (5)Orders that the respondent pay the applicant's costs of these proceedings. (6)Exhibit W1 may be returned to Council.
Catchwords:	CIVIL ENFORCEMENT: Brothel and sex uses at premises without consent - use and advertising prohibited - Council's closure order disobeyed - use alleged to have ceased.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Restricted Premises Act 1943 Willoughby Local Environmental Plan 2012
Cases Cited:	Willoughby City Council v Spa & Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101
Category:	Principal judgment
Parties:	Willoughby City Council (Applicant) Xia Xia Chen (Respondent)
Representation:	Mr N Eastman, barrister with Ms N Hammond, barrister (Applicant) Mr J Maspero, solicitor (Respondent) King & Wood Mallesons (Applicant) James Maspero, solicitor (Respondent)
File Number(s):	40184 of 2014