Willoughby City Council v Wu [2014] NSWLEC 165 | Case summary

Land and Environment Court (NSW)|2014-10-20|Before: Biscoe J

EX TEMPORE Judgment 1These are civil enforcement proceedings in the Court's Class 4 jurisdiction brought by the applicant, Willoughby City Council (Council) against the respondent, Xiao Yan Wu. The applicant seeks a declaration that the respondent has not complied with a Brothel Closure Order issued by Council pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (EPA Act) on 27 September 2013, and a declaration that the respondent has carried out unauthorised development. The applicant also seeks orders requiring compliance by the respondent with the Brothel Closure Order, and orders restraining the use of the relevant premises as a brothel or related sex uses, and an order that the respondent is to remove the partition walls in the premises and return the premises to the condition it was in prior to the unauthorised development being undertaken. The respondent consents to the proposed orders but did not appear at the trial. 2The proceedings concern Lot 218 in Strata Plan 62325 located at 218/1 Katherine Street, Chatswood (Premises), where the respondent operates a business. The Premises are within a 23-storey part residential part commercial building between Chatswood railway station and the Pacific Highway, and within 150 metres of Chatswood Public School, in the heart of the Chatswood non-retail commercial area. 3The Premises do not have development consent to operate as a brothel or for related sex uses. Such a use is only permitted with consent under the Willoughby Local Environmental Plan 2012 (LEP). 4The respondent has not complied with the Brother Closure Order. 5The evidence discloses that the Premises are advertised (inter alia) as "Pretty Baby Massage" and used as a brothel and for related sex uses, and that the respondent has carried out unauthorised development in breach of s 76A of the EPA Act, being use of the Premises as a brothel.

DISCRETION AS TO RELIEF 21The respondent consents to the orders sought including the declarations, but it remains for the Court to be persuaded to make the declarations, which will not be granted by consent: Cutcliffe v Lithgow City Council [2006] NSWLEC 463, (2006) 147 LGERA 330 at [18]-[19] per Biscoe J where the authorities are reviewed. 22I am satisfied that the respondent has committed breaches of the EPA Act and will, unless restrained by order of the Court, continue to commit such breaches. That being so, the Court is empowered and has a discretion to make such order as it sees fit to remedy or restrain the breach: s 124(1) EPA Act. This Court has the same civil jurisdiction as the Supreme Court would have, but for s 71 of the Land and Environment Court Act 1979, to make declarations of right in relation to any right, obligation or duty conferred or imposed by a planning or environmental law: s 20(2)(c) Land and Environment Court Act. The Supreme Court (and therefore this Court within its jurisdiction) may make binding declarations of right whether any consequential relief is or could be claimed or not: s 75 Supreme Court Act 1970. The power of the Court to make a declaration is only limited by its own discretion. A party seeking a declaration has the burden of satisfying the Court of facts which would justify the grant of a declaration and of any matter which is a necessary element of the declaration: Massoud v NRMA Insurance Ltd (1995) 8 ANZ Ins Cas 61-257 at 75,876 per McLelland CJ in Eq. 23A declaratory judgment pronounces upon a legal state of affairs whereby the controversy is determined and is res judicata. But it does not contain any order that can be enforced against the respondent. As a declaration decis non-coercive, it is a relatively unaggressive form of relief. However, in the sphere of civil enforcement of planning and environmental law it has come to be seen as an emphatic way for the Court, in appropriate circumstances, to mark the community's disapproval of the respondent's conduct. Declaratory relief is often coupled with an enforceable injunction. An advantage of seeking both is that if the coercive claim fails, a declaration may still be obtained. There may be circumstances where a declaration is appropriate but an injunction is not: for example, see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, (1988) 194 CLR 355 at [100]-[101]. Conversely, there may be circumstances where an injunction is appropriate but a declaration is not: for example, see Great Lakes Council v Lani [2007] NSWLEC 681, (2007) 158 LGERA 1 at [16]-[26] per Preston CJ of LEC. 24A declaration must serve some useful purpose: Ulan Coal Mines v Minister for Mineral Resources (No 2) [2008] NSWCA 251 at [9]. A declaration that resolves a factual claim that a breach of the law has occurred cannot be described as being of no utility. A declaration serves a useful purpose if it is in the public interest to make it. The planning laws are enforced in the protection of the public interest. Generally, strong countervailing circumstances are required before a Court would fail to enforce a planning consent: Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101 at [30] per Biscoe J, and Willoughby City Council v Chen [2014] NSWLEC 92 at [11] per Sheahan J (both brothel cases in which declarations and injunctions were made). A purpose of civil proceedings for enforcement of the planning laws is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondent, but that does not necessarily require the Court to make a declaration: Great Lakes Council v Lani at [25] per Preston CJ of LEC. It is in the public interest, in appropriate circumstances, for the Court make a declaration of breach of the planning laws to publicly expose and denounce the unlawful behaviour in which a respondent has engaged, thereby to mark the community's disapproval and to deter and educate: Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 at [281] per Preston CJ of LEC. 25A declaration as well as an injunction were granted where a respondent made significant structural alterations to premises without development consent and ignored a council emergency order made under s 121B of the EPA Act: Council of the City of Sydney v Mae [2009] NSWLEC 84 at [29], [45] per Sheahan J. So too where there was repeated and continual breach of conditions of a development consent relating to hours of operation of a business: Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 at [30]-[37] per Pepper J. It was held to be in the public interest to grant a declaration as well as an injunction where a respondent did not admit the breach and put in issue its critical elements, there was a threat or apprehension of continuing breach, the respondent had acted defiantly, his conduct had caused environmental harm, and there was a broader public interest in his unlawful conduct in picking plants of endangered ecological communities: Director-General, Department of Environment, Climate Change and Water v Venn at [278]-[284], [348]. 26In the present case, the respondent has been operating and deriving income from her brothel business in repeated or continual breach of the planning instrument and the statutory Brothel Closure Order for more than a year, and in repeated or continual breach of her own undertaking to desist given to Council almost a year ago. The level of public interest is shown by the significant volume of complaints about this use in a partly residential complex, and by evidence of media commentary concerning such illegal brothels. In the circumstances of this case, a declaration would serve the public interest in ensuring compliance with the law. 27For these reasons, I propose to make the orders sought, including the declarations.

ORDERS 28The orders of the Court are as follows: (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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2014

(2006) 147 LGERA 330

Willoughby City Council v Wu

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