plaintiff. VCAT ordered the occupiers Bao Xue and You Lu to cease using 29 Wurruk Avenue immediately as a brothel and cease using it for a non-sexual massage business unless and until a valid planning permit...
Key principles
The Tribunal found, on the evidence of private investigators, that the land at 29 Wurruk Avenue was being used as a brothel because sexual services were being provided for...
The Tribunal held that the investigators' covert methods and failure to disclose the purpose of their visits did not invalidate their sworn oral evidence; such evidence was...
A 'brothel' is a prohibited use in the Residential 1 Zone under Clause 32.01-1 of the Darebin Planning Scheme; the Tribunal therefore had power under s114 of the Planning and...
Even if the use had been characterised as a non-sexual massage business, that use would either be prohibited or require a planning permit under the Scheme; no permit existed, so...
Issues before the court
Whether the land at 29 Wurruk Avenue was being used as a brothel contrary to the Darebin Planning Scheme.
Whether covert evidence gathered by private investigators who did not disclose their purpose was admissible and sufficient.
Plain English Summary
VCAT found that 29 Wurruk Avenue in Preston was being used as a brothel contrary to the Darebin Planning Scheme. The Tribunal accepted sworn evidence from private investigators that sexual services were provided for payment on the premises, held that covert investigation did not invalidate that evidence, and ordered the occupiers to stop operating the brothel immediately. The Tribunal also said that even a non-sexual massage business would have been unlawful without a permit. The application against the owner was adjourned to allow him to evict the tenants.
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Deep Dive
1,765 words · generated 06/07/2026
What happened
Darebin City Council (the Responsible Authority) applied to VCAT under s114 of the Planning and Environment Act 1987 for an enforcement order in respect of 29 Wurruk Avenue, Preston. The Council alleged the house, located in a Residential 1 Zone under the Darebin Planning Scheme, was being used as a brothel in contravention of Clause 32.01-1 (Reasons [1], [4], [7]).
Whether a business of 'non sexual massage' would be lawful without a permit in the Residential 1 Zone.
Whether the owner should be the subject of an enforcement order.
Cited legislation
1 cited instrument linked from this judgment.
The owner, Mr Lu Xiang Kang, had leased the property to Mr Bao Xue (tenancy commencing 1 September 2007). Mr Kang served a written notice terminating the tenancy on 1 November 2008, giving 120 days to vacate (Reasons [2], [3]). Occupiers of the property were Mr Xue and Ms You Lu. The occupiers denied the brothel allegation and claimed the premises hosted a non-sexual Chinese relaxation massage business (Reasons [5], [6]).
The Council presented sworn evidence from licensed private investigators and produced advertisements placed in the local press advertising "Chinese Relaxation Massage" with a mobile number connected to the premises (Reasons [6]). The private investigators gave oral evidence that sexual services were provided for payment on the premises. The occupiers argued evidence was insufficient, arguing photographic, video or audio recordings should have been produced and that investigators should have disclosed their purpose (Reasons [8]).
VCAT rejected those objections, accepting the investigators' sworn oral evidence and finding it was not invalidated by their covert approach (Reasons [10], [11]). Applying the Planning Scheme definitions (including the Scheme definition of 'brothel' and the Scheme's reference to the Prostitution Control Act definition of 'sexual services'), the Tribunal concluded the activities amounted to a brothel and were therefore prohibited in the Residential 1 Zone. The Tribunal ordered the occupiers to cease using the land as a brothel immediately and also ordered cessation of any business providing non-sexual massage unless and until a planning permit authorising such use came into effect. The Council's application, insofar as it applied to the owner, was adjourned to allow the owner to pursue eviction of the tenants; costs against the occupiers were reserved (Orders; Reasons [11], [7], [3 under 'In these circumstances']).
Why the court decided this way
Three interlocking lines of reasoning lead to the Tribunal's decision.
Evidential sufficiency and admissibility of the investigators' evidence
The Tribunal accepted the sworn oral evidence of the private investigators as credible and reliable. The Tribunal specifically addressed the Respondents' submission that investigators should have disclosed they acted on behalf of the Responsible Authority and that photographic or recorded proof was necessary (Reasons [8], [9], [10]).
The Tribunal found that the investigators' failure to disclose did not invalidate their evidence and that, while direct photographic or audio-visual recordings might have been compelling, the absence of such recordings did not undermine the sworn evidence (Reasons [9], [10], [11]).
On this basis the Tribunal preferred the investigators' evidence to the Respondents' denials and accepted that sexual services were offered and provided for payment (Reasons [10], [11]).
Proper application of the Planning Scheme definitions and uses
Clause 32.01-1 of the Scheme makes a 'brothel' a prohibited use in a Residential 1 Zone (Reasons [7]). The Scheme defines 'brothel' in Clause 74, and defines 'prostitution' in Clause 72, while 'sexual services' is defined by reference to the Prostitution Control Act (Reasons [12] and following).
The Prostitution Control Act's definition of 'sexual services' includes acts such as 'masturbating another person', which the Tribunal found to be encompassed within the investigators' evidence (Reasons [12]).
Therefore the Tribunal concluded the factual findings established the statutory definitions and that the use was a prohibited 'brothel' (Reasons [11], [12], [2 post-definitions]).
Planning consequences and public interest
The Tribunal observed that even if the occupiers' characterisation as a non-sexual massage business were accepted, such a business would either be prohibited or require a planning permit in the Residential 1 Zone, and none existed (Reasons [7]).
The Tribunal also noted complaints and the broader public policy position that brothels are generally unacceptable in residential areas and may amount to common law nuisance, reinforcing the appropriateness of intervention (Reasons [6], [6 under nuisance comment]).
The combination of these factual and legal findings led the Tribunal to grant the enforcement order against the occupiers, while giving the owner an opportunity to remedy the situation through eviction before making orders against him (Orders; Reasons [3 under 'In these circumstances']).
Before and after state of the law
Before this decision:
The Planning and Environment Act 1987 provided s114 enforcement powers and the Darebin Planning Scheme contained the usual table of uses and definitions in Clauses 32.01-1, 72 and 74. The Prostitution Control Act provided statutory definitions for 'sexual services'.
After this decision:
The decision applies these established statutory provisions to the facts and confirms the Tribunal's willingness to accept sworn oral investigative evidence, even if covertly obtained, as sufficient to establish contravention of a planning scheme use prohibition. The decision also reinforces that operators who claim their activity is non-sexual massage must still satisfy the planning scheme use table; absent a permit, such a business can still be unlawful.
This case does not change statutory law but is a clear application at VCAT level of enforcement tools against brothel activity in residential zones and an articulation of evidential standards for investigator testimony in planning enforcement matters.
Key passages with plain-English translation
"We find that the evidence of the investigators is not invalidated by their failure to disclose the true purpose of their visits." (Reasons [10])
Plain English: The investigators did not have to tell people they were collecting evidence for the Council. The Tribunal still accepted their sworn accounts as valid evidence.
"We in fact accept this evidence which discloses the provision of sexual services for money which establishes the use of the land as a brothel." (Reasons [11])
Plain English: The Tribunal believed the investigators. The services observed were sexual and paid for, so the property was being used as a brothel under the planning rules.
"Even the suggested use of the land for a non sexual massage business would be contrary to the planning scheme and would warrant the granting of an enforcement order to restrain that use." (Reasons [7])
Plain English: Even if the occupiers were telling the truth about non-sexual massages, that sort of business still would not be allowed there without a permit.
"Brothel: Land made available for prostitution by a person carrying on the business of providing prostitution services at the business's premises." (Reasons [12])
Plain English: The Scheme's definition: if someone runs a business at the property where sexual services are offered for payment, it's a brothel.
"Complaints had been received ... and a brothel has long been regarded as unacceptable in a residential area. Indeed it has been held to constitute a nuisance of common law." (Reasons [6])
Plain English: People complained; brothels are generally considered improper in residential neighbourhoods and can be a legal nuisance.
What fact patterns trigger this precedent
The decision is directly engaged where:
A property in a residential zone is alleged to host paid sexual activity, and the Responsible Authority brings an enforcement application under s114 alleging use as a brothel (Reasons [1], [4]).
The primary evidence is investigative rather than documentary, including sworn oral testimony from private investigators, possibly supported by advertisements or other circumstantial evidence (Reasons [6], [8]-[11]).
Occupiers attempt to characterise the activity as legitimate non-sexual massage, but no planning permit exists and multiple non-resident employees are engaged (Reasons [5], [7], [5 under home occupation discussion]).
The owner has served, or seeks to serve, termination of tenancy and may evade an order if eviction proceeds promptly (Reasons [3], [7], Orders para 2).
Practitioners should rely on this decision when advising Councils bringing enforcement actions that credible sworn investigator evidence can be decisive and that simply labelling activities as 'massage' will not avoid planning prohibition where the use table or definitions capture sexual services.
How later courts have treated it
This deep dive is limited to the judgment text and does not incorporate subsequent citation history. The Tribunal's reasoning is framed as a conventional application of statutory definitions and enforcement powers. The holding that investigator testimony is admissible and persuasive is a factual-evidence assessment at VCAT level and would remain persuasive precedent within VCAT and potentially in civil contexts, subject to appellate authority. The decision does not purport to overrule or modify statutory provisions.
Still-open questions
Evidentiary thresholds and covert surveillance
The Tribunal accepted oral sworn investigator evidence in this case; however, it acknowledged that photographic, video or audio recordings would have been more compelling (Reasons [8]-[11]). Future cases may test the limits of admissibility where investigators use covert methods, particularly where privacy or harassment issues arise, or where statutory privacy protections apply.
Owner liability and timing of orders
The Tribunal adjourned action as to the owner to allow eviction. It remains an open, fact-sensitive question when a Tribunal will nonetheless make immediate orders against an owner despite ongoing eviction steps. The decision indicates deference where an owner shows intention and steps to remedy (Reasons [3 under 'In these circumstances']).
Distinguishing lawful massage from prohibited sexual services
The Tribunal noted absence of qualifications and admitted non-residence of employees as relevant to rejecting the non-sexual massage characterisation (Reasons [4], [5]). The boundary between a licit therapeutic massage business and illicit sexual services will continue to be factually driven; documentary proof of qualifications, residency and business structure may be critical.
Remedies beyond cessation orders
The Tribunal declined to order a sign modeled on Prostitution Control Act notices as uninformative (Reasons [9 under sign discussion]). The precise remit for remedial signage, penalties, and costs in such enforcement matters remains a matter for discretion and future litigation.
Interaction with criminal or regulatory prosecutions
This is a planning enforcement decision. It references the Prostitution Control Act for definitions but does not engage criminal enforcement mechanisms. How parallel regulatory or criminal proceedings might affect admissibility or outcomes in planning enforcement remains an operational question for practitioners coordinating multi-agency responses.
Conclusion: Darebin CC v Xue [2009] VCAT 188 is a straightforward enforcement decision applying planning scheme definitions and confirming that credible sworn evidence from investigators can be sufficient to establish use as a brothel. It emphasises that characterisation as 'non-sexual massage' will not automatically avoid planning prohibition and illustrates VCAT's pragmatic remedial approach, including willingness to adjourn owner-directed relief where eviction steps are underway (Reasons [10], [11], [7], [3]).
Judgment (20 paragraphs)
[1]
Darebin CC v Xue [2009] VCAT 188 (6 February 2009)
[2]
Russell Byard, Senior Member & Christina Fong, Member
[3]
Lot 24 on Plan of Subdivision No. 11265 being the Land and Certificate of Title Volume 7785 Folio 061.
We find that the land at 29 Wurruk Avenue Preston has been used as a brothel in contravention of Clause 32.01-1 of the Darebin Planning Scheme which prohibits that use in a Residential 1 Zone, including the Residential 1 Zone in which the land is located, and we order the Respondents Bao Xue and You Lu to cease using the land as a brothel immediately upon being served with a copy of this Order and we further order that they cease using the land for a business providing non sexual massage and that they do not commence or recommence such use unless and until a valid town planning permit granting permission for that use comes into effect.
The application for an enforcement order in so far as it applies to Lu Xiang Kang is adjourned to an administrative mention on 1 May 2009. No parties are required to appear on that date, but the responsible authority and Mr Kang are to advise the Tribunal in writing prior to that date as to the then current situation in relation to the premises including whether the use as a brothel has ceased, whether the tenancy has been terminated and whether the premises have been vacated by the Occupier/Respondents. It is anticipated that the application, in so far as it applies to Mr Kang, might be withdrawn at that stage.
The question of the application by the responsible authority for an order that the respondents Bao Xue and You Lu should be ordered to pay costs of the responsible authority in relation to these proceeding is reserved.
[6]
Mr Matthew Sherwell, solicitor of the firm of Maddocks, solicitors, appeared for the responsible authority. He presented written and oral submissions and called several witnesses who gave sworn evidence. They were Rudie Werner, planning investigations officer of the Responsible Authority, Mark Leslie Tully, licensed private investigator and Peter John Lowe, licensed private investigator.
[7]
Mr Bao Xue, respondent, appeared in person. He made oral submissions and gave sworn evidence. Ms You Lu, respondent, was not present when the hearing commenced on the morning of 30 January 2009 but was present, without her announcing her appearance, when the hearing resumes at 2:15pm on that day. The hearing had been adjourned half way through the morning on account of the interpreter from the Manderin language, Mr Frederick Quach who had ceased to be available at 11:30am but who was present assisting Mr Xue during the hearing on that morning and after 2:15pm on that day. When her presence was appreciated she participated in the hearing and she gave sworn evidence.
[8]
Mr Yen Lu Xiang Kang appeared in person and made oral submissions.
Using the land in a Residential 1 Zone as a brothel where such use is prohibited.
[11]
Residential 1 Zone under the Darebin Planning Scheme.
[12]
The responsible authority has applied under Section 114 of the Planning and Environment Act1987 (PE Act) for an enforcement order to restrain the use of the land at 29 Wurruk Avenue Preston as a brothel. This land is located in a Residential 1 Zone under the Darebin Planning Scheme. There is a house on it and there are other houses nearby.
The land is owned by Mr Lu Xiang Kang. He has leased it to Mr Xue for residential purposes which tenancy commenced on 1 September 2007.
Mr Kang has given Mr Xue notice terminating the tenancy agreement and requiring taking possession of the land. This notice was given in writing by hand on 1 November 2008. It gives 120 days to vacate so that there were several weeks still to run at the time of the hearing of this case on 30 January 2008.
The alleged contravention is that the land is used as a brothel. Brothel is a prohibited use in a Residential 1 Zone.
The defence of Mr Xue and Ms Lu is that the land is not used as a brothel but that they conduct a business offering physical massage which does not include the provision of sexual services.
Copies of advertisements in the local press were produced. They relate to the land, provide a mobile telephone number and offer "Chinese Relaxation Massage".
Even the suggested use of the land for a non sexual massage business would be contrary to the planning scheme and would warrant the granting of an enforcement order to restrain that use. Clause 32.01 of the Planning Scheme contains the provisions that relate to Residential 1 Zone land. Clause 32.01-1 contains a table of uses. Some uses in the table can be carried out without a planning permit whilst others require a planning permit or are prohibited so that a planning permit cannot be granted. Brothel appears in the prohibited list. It appears than none of the uses that are allowed without a permit could cover a non sexual massage business. In those circumstances such business is either prohibited or would require a permit. No permit exists.
[13]
Brothel Land made available for prostitution by a person carrying on the business of providing prostitution services at the business's premises.
[14]
The word "prostitution" is defined in the general terms in the Planning Scheme as
[15]
Prostitution The provision of one person to or for another person (whether or not of a different sex) of sexual services in return for payment or reward.
[16]
That definition appears in Clause 72 of the Planning Scheme, and so does a definition of "Sexual services". That definition reads
The definition of "Sexual services" in the Prostitution Control Act includes "masturbating another person".
We find, on the evidence, that the land has been and is being used as a brothel. All the other evidence is consistent with that finding although the finding is primarily based on the evidence of the private enquiry investigators.
The denials of the Occupier/Respondents are noted, but it is also true, on their own admission, that they were not present in the room when the services were being provided.
A field work record work in relation to a massage training course offered by a college was produced. Ms You Lu gave evidence that she has been attending a course and has that document in relation to the course. However, she has not completed the course and is not qualified. No certificates in relation to such qualifications were seen by witnesses, and it was admitted on behalf of the Occupier/Respondents that the other girls employed are not qualified to give legitimate non sexual massage.
We note too that Ms Lu does not reside on these premises. A defence of the business being a home occupation was not raised, but if it had been, the business would fall outside the limitations of that concept with Ms Lu and two or three other female employees who do not reside on the premises being engaged. In any event, we are satisfied that the activity was or included the provision of sexual services as defined, and was not limited to non sexual massage.
Complaints had been received by the responsible authority in relation to activities on the land and a brothel has long been regarded as unacceptable in a residential area. Indeed it has been held to constitute a nuisance of common law. We are satisfied that the Responsible Authority has proved the contravention and that an enforcement order is appropriate in the circumstances.
Mr Kang is the owner of the land. An order could be made against him. In his submission he explained that he had let the land for residential purposes and not for the conduct of any business, much less a brothel, and that this is why he had given notice of termination of the tenancy. He has indicated that he intends to go ahead with that termination, and with the recovery of possession in the event of our finding that use of the land of the brothel has been proved.
[19]
TAKE NOTICE that on [day] of [month] 2008, the Victoria Civil and Administrative Tribunal granted an enforcement order declaring that the Land was used in contravention of the Darebin Planning Scheme. It is an offence to use the Land in contravention of the Planning Scheme.
[20]
It certainly is an offence to use the land contrary to the planning scheme. That is true of any contravention of the planning scheme.
It was said that this notice was conceived of as being somewhat similar to the notice that might be put on the land in event of it being declared to be a prescribed brothel under the Prostitution Control Act. Such a sign makes sense under that Act. If people are not allowed onto the land for any purpose there needs to be warning to that effect. The same does not really apply here. To say in a sign that there has been a finding that the land was used contrary to the planning scheme, without saying what the nature of the contravention is uninformative and of little use. We do not propose to make orders in relation to the sign.
In these circumstances the Responsible Authority is content that the application, in so far as it relates to Mr Kang, should be adjourned to give him a opportunity to evict the tenants and thereby avoid having an order made against himself. We will follow that course.
The Responsible Authority has not sought an order for costs against him, but has sought an order against the other Occupier/Respondents. The question of costs will be reserved.
Parties
Applicant/Plaintiff:
Darebin CC
Respondent/Defendant:
Xue [2009] VCAT 188
Legislation Cited (1)
Control Act 1994
AI Analysis
Outcomeplaintiff
Disposition:
VCAT ordered the occupiers Bao Xue and You Lu to cease using 29 Wurruk Avenue immediately as a brothel and cease using it for a non-sexual massage business unless and until a valid planning permit is in effect; the application as to owner Lu Xiang Kang was adjourned to allow eviction steps; costs against occupiers reserved.
The Respondents who occupy the premises and conduct the business there claimed that there is no evidence to show that the land is used as a brothel. To satisfy Mr Xue there would have to be evidence in the form of photographs, video footage and audio recording of the visits of the private investigator witnesses. He claimed that they should have declared themselves as agents of the Responsible Authority at the beginning of their visits. The result of that would have been that no relevant evidence of sexual services would have been forth coming. The photographic, video and audio recording evidence that he claims would be necessary would have involved, if the evidence of the witnesses is true, photography and recording the women providing the services when they were fully naked and in the presence of the witnesses who are naked, including masturbating them.
Again, it is most unlikely that these actions would have been performed before cameras, video cameras and audio recording equipment.
We find that the evidence of the investigators is not invalidated by their failure to disclose the true purpose of their visits. The sworn oral evidence that they gave is in fact evidence, whether or not verified with photographs, video footage and audio recordings.
We in fact accept this evidence which discloses the provision of sexual services for money which establishes the use of the land as a brothel.
The land use term "brothel" is defined in Clause 74 of the Planning Scheme to mean
After letting the property he inspected it on a number of occasions and found it to be satisfactory state. He has also been satisfied with the regular payment of his rent. In the course of his inspections he did not find evidence such as massage tables, indicating use as a brothel or as a business for non sexual massage. It appears that his most recent inspection was before the current activities complained of commenced in about August or September 2008.
In its enforcement order application document the responsible authority sought a finding that the land has been used as a brothel, an order that such use cease immediately and an order in relation to its costs of the proceedings. It also sought an order that a notice be fixed to the front of the premises and maintained for three months or until further order such notice to read