Willoughby City Council v Wu - [2014] NSWLEC 165

Land and Environment Court

New South Wales

Case Title: Willoughby City Council v Wu

Medium Neutral Citation: [2014] NSWLEC 165

Hearing Date(s): 20 October 2014

Decision Date: 20 October 2014

Jurisdiction: Class 4

Before: Biscoe J

Decision:
(1) Declaration that the respondent has not complied with Brothel Closure Order No 2587 issued by the applicant on 27 September 2013 to cease using the land at 218/1 Katherine Street, Chatswood (the Premises) as a brothel or for any related sex uses and, accordingly, is in breach of the Environmental Planning and Assessment Act 1979.
(2) Declaration that the respondent has carried out development in breach of s 76A of the Environmental Planning and Assessment Act 1979 being use of the Premises as a brothel without development consent in circumstances where such development is permitted with consent by the Land Use Table of the Willoughby Local Environmental Plan 2012.
(3) Order that the respondent by herself, her employees, servants or agents be restrained from using, causing or permitting the use of the Premises:
(a) as a brothel; or
(b) for related sex uses.
(4) Order that the respondent by herself, her employees, servants or agents is to remove within one month of the date of these Orders the partition walls in the premises constructed without development consent and otherwise not in accordance with Development Consent DA 2003/0173 (as modified), and return the Premises to the maximum extent possible to the condition they were in prior to the unauthorised development being undertaken.
(5) Order that the respondent pay the applicant's costs of these proceedings.
(6) The exhibits may be returned.

Catchwords: CIVIL ENFORCEMENT - failure to comply with a statutory brothel closure order issued by a council - carrying out unauthorised development at the subject premises - whether declarations should be made in addition to injunctions - principles relating to declaratory relief.

Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4, 76A, 96, 121B, 124(1)
Land and Environment Court Act 1979 ss 20(2)(c), 71
Restricted Premises Act 1943 s 2
Supreme Court Act 1970 s 75
Willoughby Local Environmental Plan 2012 cl 6.19

Cases Cited: Council of the City of Sydney v Mae [2009] NSWLEC 84
Cutcliffe v Lithgow City Council [2006] NSWLEC 463, (2006) 147 LGERA 330
Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118
Great Lakes Council v Lani [2007] NSWLEC 681, (2007) 158 LGERA 1
Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127
Massoud v NRMA Insurance Ltd (1995) 8 ANZ Ins Cas 61-257
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, (1988), 194 CLR 355
Ulan Coal Mines v Minister for Mineral Resources (No 2) [2008] NSWCA 251
Willoughby City Council v Chen [2014] NSWLEC 92
Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101

Category: Principal judgment

Parties: Willoughby City Council (Applicant)
Xiao Yan Wu (Respondent)

Representation

- Counsel: COUNSEL:
N Eastman and N Hammond (Applicant)
N/A (Respondent)

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 165
Decision Date: 20 October 2014

CaseChat Overview and Summary

The case of Willoughby City Council v Wu involved the Willoughby City Council and Ms Wu, the owner of premises located at 218/1 Katherine Street, Chatswood. The dispute centred around the Council's assertion that Ms Wu had breached a Brothel Closure Order and carried out unauthorised development on the property, specifically using it as a brothel without the necessary consent. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether Ms Wu had indeed contravened the Brothel Closure Order by continuing to operate a brothel on the premises, and whether the modifications she made to the property constituted development that required consent under the Environmental Planning and Assessment Act 1979. The court also had to determine the appropriate remedies and orders to address the breach.

In delivering the judgment, the court found that Ms Wu had not complied with the Brothel Closure Order, as evidenced by the continued operation of a brothel on the premises. The court further ruled that the construction of partition walls without the requisite development consent constituted unauthorised development under the Act. Consequently, the court granted the Council's application for declarations of non-compliance and breach, as well as orders to restrain Ms Wu from using the premises as a brothel or for related sex uses. The court also mandated the removal of the unauthorised partition walls and ordered Ms Wu to restore the premises to their prior condition. In addition, the court ordered Ms Wu to pay the Council's costs of the proceedings.

The court's final orders included a declaration of non-compliance with the Brothel Closure Order, a declaration of unauthorised development, a prohibition on using the premises for brothel activities, a requirement to remove unauthorised modifications, and an order for Ms Wu to pay the Council's costs. The exhibits were to be returned to the parties.

Orders

Orders of the court

(1) Declaration that the respondent has not complied with Brothel Closure Order No 2587 issued by the applicant on 27 September 2013 to cease using the land at 218/1 Katherine Street, Chatswood (the Premises) as a brothel or for any related sex uses and, accordingly, is in breach of the Environmental Planning and Assessment Act 1979.

(2) Declaration that the respondent has carried out development in breach of s 76A of the Environmental Planning and Assessment Act 1979 being use of the Premises as a brothel without development consent in circumstances where such development is permitted with consent by the Land Use Table of the Willoughby Local Environmental Plan 2012.

(3) Order that the respondent by herself, her employees, servants or agents be restrained from using, causing or permitting the use of the Premises:

(a) as a brothel; or

(b) for related sex uses.

(4) Order that the respondent by herself, her employees, servants or agents is to remove within one month of the date of these Orders the partition walls in the premises constructed without development consent and otherwise not in accordance with Development Consent DA 2003/0173 (as modified), and return the Premises to the maximum extent possible to the condition they were in prior to the unauthorised development being undertaken.

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

(6) The exhibits may be returned.

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.

Case Title:	Willoughby City Council v Wu
Medium Neutral Citation:	[2014] NSWLEC 165
Hearing Date(s):	20 October 2014
Decision Date:	20 October 2014
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	(1) Declaration that the respondent has not complied with Brothel Closure Order No 2587 issued by the applicant on 27 September 2013 to cease using the land at 218/1 Katherine Street, Chatswood (the Premises) as a brothel or for any related sex uses and, accordingly, is in breach of the Environmental Planning and Assessment Act 1979. (2) Declaration that the respondent has carried out development in breach of s 76A of the Environmental Planning and Assessment Act 1979 being use of the Premises as a brothel without development consent in circumstances where such development is permitted with consent by the Land Use Table of the Willoughby Local Environmental Plan 2012. (3) Order that the respondent by herself, her employees, servants or agents be restrained from using, causing or permitting the use of the Premises: (a) as a brothel; or (b) for related sex uses. (4) Order that the respondent by herself, her employees, servants or agents is to remove within one month of the date of these Orders the partition walls in the premises constructed without development consent and otherwise not in accordance with Development Consent DA 2003/0173 (as modified), and return the Premises to the maximum extent possible to the condition they were in prior to the unauthorised development being undertaken. (5) Order that the respondent pay the applicant's costs of these proceedings. (6) The exhibits may be returned.
Catchwords:	CIVIL ENFORCEMENT - failure to comply with a statutory brothel closure order issued by a council - carrying out unauthorised development at the subject premises - whether declarations should be made in addition to injunctions - principles relating to declaratory relief.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, 76A, 96, 121B, 124(1) Land and Environment Court Act 1979 ss 20(2)(c), 71 Restricted Premises Act 1943 s 2 Supreme Court Act 1970 s 75 Willoughby Local Environmental Plan 2012 cl 6.19
Cases Cited:	Council of the City of Sydney v Mae [2009] NSWLEC 84 Cutcliffe v Lithgow City Council [2006] NSWLEC 463, (2006) 147 LGERA 330 Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 Great Lakes Council v Lani [2007] NSWLEC 681, (2007) 158 LGERA 1 Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 Massoud v NRMA Insurance Ltd (1995) 8 ANZ Ins Cas 61-257 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, (1988), 194 CLR 355 Ulan Coal Mines v Minister for Mineral Resources (No 2) [2008] NSWCA 251 Willoughby City Council v Chen [2014] NSWLEC 92 Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101
Category:	Principal judgment
Parties:	Willoughby City Council (Applicant) Xiao Yan Wu (Respondent)
Representation
- Counsel:	COUNSEL: N Eastman and N Hammond (Applicant) N/A (Respondent)