Rockdale City Council v Yong Xu [2005] NSWLEC 581

Land and Environment Court of New South Wales

CITATION : Rockdale City Council v Yong Xu [2005] NSWLEC 581

APPLICANT Rockdale City Council PARTIES : RESPONDENT Yong Xu

FILE NUMBER(S) : 40765 of 2005

CORAM: Talbot ACJ

KEY ISSUES: Costs :- whether conduct of council disentitling.

DATES OF HEARING: 27/09/2005 EX TEMPORE JUDGMENT DATE : 09/27/2005

APPLICANT Mr J M Reilly (Solicitor) SOLICITORS LEGAL REPRESENTATIVES: Abbott Tout

RESPONDENT In person

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot ACJ

27 September 2005

40765 of 2005 Rockdale City Council v Yong Xu

JUDGMENT 1 Talbot ACJ: In this matter proceedings were commenced by class 4 application on 14 July 2005 and the first return of the application class 4 was on 11 August 2005 before Bignold J. Directions were made on that day and the matter came before Pain J on 30 August 2005 when final orders were made.

2 Following the making of final orders by Pain J which were, as I understand, effectively by consent, or at least not opposed although the orders do not say they are by consent, nevertheless it is clear from what has been put to me by Mr Xu that he agreed to the making of the orders on 30 August 2005. 3 Following the making of those orders the business was closed. Prior to that Mr Xu had, according to his uncontested evidence, made a number of attempts since February 2005 to obtain from council relevant information to assist him to understand whether or not the property was a property where the business of a brothel could be conducted. 4 It is unfortunate that Mr Xu was not able to get satisfaction from the inquiries made of the council on his behalf, as I say his evidence is uncontested in that respect. He made a number of attempts to understand the position. However it was clear that after he commenced business he took the step of lodging a development application. That was done by 3 May 2005, business having commenced on 22 April 2005. 5 Difficulties were encountered in relation to the processing of the development application but ultimately it was formally rejected after council made some inquiries and became aware that the business was being carried on. Prior to that there had been an interim response to indicate that the brothel was proposed in a prohibited area. However, the fact is that on 18 May 2005 a notice of determination was issued so that from that date the respondent had advice formally from the council that the development application has been refused and that the development was prohibited. 6 Notwithstanding the receipt of that letter, Mr Xu renewed his efforts to obtain plans or diagrams that he required in order to ascertain the zoning position but, nevertheless, continued to trade. 7 The problem lies, after that date, squarely with Mr Xu in that having been told by council that it was prohibited in the letter of 18 May 2005, he nevertheless continued to carry on the business, as it turns out of course quite illegally. 8 True it may be that there has been difficulty in obtaining copies of the relevant material. The council, certainly from the evidence that is before me, has been less than cooperative with Mr Xu in terms of informing him in respect of the zoning that applied to the land upon which he proposed to carry on the business. The fact remains, nevertheless, that business was commenced prior to lodging any application with the council and indeed was continued after the development consent had been refused. 9 I am here to deal with the costs in relation to the proceedings which were not commenced until 14 July 2005. It is commendable that by the time the matter came on for hearing, Mr Xu had become aware of what the true position was and he brought the proceedings to an end shortly by consenting to the orders that were made by Pain J on 30 August 2005. 10 Unfortunately, however, that does not overcome the problem that had arisen following the notice of determination on 18 May 2005 and the continuation of the business after that. The council was justified in seeking to have the use of the property cease. I have not been appraised of any correspondence after 18 May 2005 when a letter attaching the notice of determination was sent to Mr Xu, but it was made clear in that letter that he was advised to cease the use immediately and that the matter would be forwarded to council's solicitors for further action. So that on at least 18 May 2005 there was clear notice that the council was going to do something about it and Mr Xu should have been aware that there was to be some legal proceedings. As it turns out, they did not come before the Court until 11 August 2005. By then affidavits had been served and it must have been quite clear to Mr Xu that the use of the premises would have to cease. 11 I am not here to judge the council in relation to its processes and its efforts, or lack of effort, to assist Mr Xu with his endeavours to ascertain what the position was in relation to the zoning of the proposed property and the permissibility for its use as a brothel. Certainly, as I said before, it would appear that the council was less than cooperative and perhaps there should have been a greater effort on its part to assist the respondent to understand the position. Nevertheless that does not excuse the fact that the business commenced before a development application was lodged. There could have been no misapprehension that a development application was required irrespective of whether or not the use was prohibited. 12 After 18 May 2005 it had been made clear that the use was prohibited and that the use should cease. Further inquiries made after a private inquiry agent was engaged on 15 June 2005 showed that the business was continuing. The business indeed continued until the orders were complied with in early September.