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

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

2 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".

3 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.

4 Mr Maspero accepted the written and oral submissions made by Mr Eastman on behalf of Council. He did not contest any of Council's evidence, nor any of Council's arguments, and did not oppose the orders sought in the summons, other than to indicate that, as Ms Chen does not intend to return to Australia, Council may have difficulty recovering its costs of the proceedings.

5 It is clear that since before Ms Chen opened the business in August 2012, the use of the premises as a brothel, or for any massage purposes beyond "genuine remedial or therapeutic massage services", breaches the Environmental Planning and Assessment Act 1979 ("the EPA Act"), by operation also of the Restricted Premises Act 1943, and the relevant local environmental planning instruments (now the Willoughby Local Environmental Plan 2012). The relevant provisions also specifically ban advertising suggestive of such uses.

6 In this case, the Council, through the evidence of its Development Enforcement Officer, Steven Balafas, and a Private Investigator, Adam Gage, has clearly demonstrated the provision in the premises of sexual services for money (to Gage on 3 and 22 October 2013), and the advertisement of such services by signage, internet etc, from at least February 2013, until at least February 2014.

7 On 20 February 2013, Ms Chen denied the provision of sexual services at the premises, but Council issued its order 2 days later, and a penalty notice on 26 February. Advertising and behaviour sufficient to provoke complaints from the public continued. Council's solicitors wrote in early July seeking from Ms Chen an appropriate written undertaking to cease the use. Council suggested she obtain legal advice if in doubt about signing it. She returned to Council on 12 July 2013, and signed the formal undertaking (Exhibit W1, fol 61).

8 However, suggestive advertising and local complaints continued, including from the local State MP, and medical establishments in and near the complex.

9 The complaints to Council commenced in October 2012, and continued beyond the Order, and beyond the undertakings given on and from 23 February 2013 (Exhibit W1, fol 45) that the law would be obeyed. The police became involved when some street solicitation of business was reported on 14 October 2013.

10 I am satisfied of relevant breaches, in terms of both development and use, over a period of almost two years. I acknowledge the apparent benefits of Mr Maspero's recent intervention, but Ms Chen's word is not to be trusted.

11 For the reasons which guided Biscoe J in another Chatswood brothel case Willoughby City Council v Spa & Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101, at [31], and in the absence of any grounds for the contrary exercise of the Court's jurisdiction, I am prepared to make all the orders and declarations sought by Council.

12 Accordingly, 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;

(a) as a brothel; or

(b) 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

**********

Decision last updated: 03 July 2014