City of Sydney Council v De Cue Pty Ltd [2006] NSWLEC 763

Land and Environment Court of New South Wales

CITATION : City of Sydney Council v De Cue Pty Ltd [2006] NSWLEC 763

APPLICANT City of Sydney Council PARTIES : RESPONDENT De Cue Pty Ltd

FILE NUMBER(S) : 40301 of 2006

CORAM: Preston CJ

KEY ISSUES: Brothel :- order that occupier cease use of premises as brothel - operation of brothel causes disturbances in and interference with amenity of neighbourhood

LEGISLATION CITED: Environmental Planning & Assessment Act 1979 (NSW) s 123 Restricted Premises Act 1943 (NSW) s 17(1)-17(5), s 17A

CASES CITED: Suzelle Antic v City of Sydney Council [2006] NSWLEC 276 (23 June 2006); Suzelle Antic v Waverley Council [2005] NSWLEC 125 (24 March 2005)

DATES OF HEARING: 09/10/2006, 10/10/2006, 01/12/2006, 06/12/2006

EX TEMPORE JUDGMENT DATE : 12/06/2006

APPLICANT Mr M Craig QC with Mr E Ozen SOLICITORS LEGAL REPRESENTATIVES: Maddocks RESPONDENT Mr J Robson SC with Mr M Sahade SOLICITORS Comino Prassas

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

6 DECEMBER 2006

40301 OF 2006

CITY OF SYDNEY COUNCIL V DE CUE PTY LTD

JUDGMENT

1 HIS HONOUR: Mistys is a brothel operated by a company, De Cue Pty Ltd ("De Cue"). The principal of the company is Ms Suzelle Antic. 2 Mistys' current business address is 3 Tusculum Street, Potts Point. Mistys moved to these premises in October 2005. Previously, Mistys had operated in Bondi. Mistys operates from the premises under a lease between De Cue and the owner entered into in August 2005. 3 From the time Mistys commenced operation at 3 Tusculum Street, residents and other occupiers of premises in the area around Mistys have experienced disturbances in and interference with the amenity of the neighbourhood. The residents and occupiers claimed that the cause of the disturbances in and interference with the amenity of the neighbourhood are the clients of Mistys and their associates. They claim that clients of Mistys and their associates have illegally parked in and around Tusculum Street, generated loud noise from their cars, caused loud noise by yelling and boisterous behaviour while congregating in the neighbourhood and engaged in antisocial behaviour including urinating, fighting, using offence language, throwing rubbish and intimidating residents and students of a nearby school. 4 The residents and occupiers have made numerous complaints to the City of Sydney Council and to the police over an extended period, from shortly after the commencement of operation of Mistys in October 2005 to date. 5 The Council, being satisfied that it had received sufficient complaints about Mistys, made application to this Court for an order that the operator of Mistys, De Cue, not use or allow the use of the premises at 3 Tusculum Street for the purposes of a brothel. This Court has power to make such an order under s 17(1) of the Restricted Premises Act 1943 (NSW). 6 De Cue contests the Council's application for such an order. Although conceding the Court has power to make the order, De Cue submits that the Court would exercise its discretion not to do so. De Cue submits that the disturbances in and interferences with the amenity of the neighbourhood have not been sufficient to warrant making an order, the operation of the brothel has improved and will continue to improve as De Cue implements a plan of management for Mistys. De Cue relies on the fact that the Council and the Court on appeal determined to grant deferred commencement consent earlier in the year. De Cue also submits that an order would cause financial hardship to De Cue and to the sex workers who work at Mistys. 7 The Court's task is to determine whether the Court should make an order restraining De Cue from operating its brothel on the premises at 3 Tusculum Street. The power to order premises not to be used as a brothel 8 The Court has power, on application by a local council, to make an order that an owner or occupier of premises that are a brothel and that are situated within the area of the Council, is not to use or allow the use of the premises for the purposes of a brothel: s 17(1) of the Act. 9 The Court is restricted in the matters it can take into consideration in making an order under s 17(1) to the matters enumerated in s 17(5) of the Act. Subsection 17(5) provides that: "In making an order under this section the Land and Environment Court is to take into consideration only the following: (a) whether the brothel is operating near or within view from a church, hospital, school or any place regularly frequented by children for recreational or cultural activities, (b) whether the operation of the brothel causes a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood or other land use within the neighbourhood involving similar hours of operation and creating similar amounts of noise and vehicular and pedestrian traffic, (c) whether sufficient off-street parking has been provided if appropriate in the circumstances, (d) whether suitable access has been provided to the brothel, (e) whether the operation of the brothel causes a disturbance in the neighbourhood because of its size and the number of people working in it, (f) whether the operation of the brothel interferes with the amenity of the neighbourhood, (g) any other matter that the Land & Environment Court considers relevant" 10 The chapeau of the subsection operates both to make matters listed in the subsection relevant matters that must be considered as well as to make matters outside the subsection irrelevant matters that must be ignored. Paragraph (g) mitigates this effect to some extent by permitting the Court to take into consideration any other matter which the Court considers relevant. However, any matter the Court might wish to consider would still have to be within the subject matter, scope and purpose of the power under s 17 of the Restricted Premises Act. 11 The power to make an order under s 17(1) of the Restricted Premises Act is available irrespective of whether the use of the premises as a brothel is lawful or unlawful under the Environmental Planning and Assessment Act 1979. Hence, even if development consent has been granted under the Environmental Planning and Assessment Act 1979 authorising the use of premises as a brothel, the Court would still have power to make an order under s 17(1) that the premises not be used as a brothel if the circumstances (being those in s 17(2), (3) and (5)) warrant it. 12 De Cue submitted that the considerations in s 17(5) require fault on the part of the owner or operator of the brothel where the use of the brothel is lawful under the Environmental Planning & Assessment Act 1979 (such as where development consent has been granted to use the premises for the purpose of a brothel) but not where the use was unlawful under the Act (such as where use of the premises as a brothel is prohibited or the use is permissible with consent but no consent has been obtained or the use is being carried out otherwise than in accordance with a consent). If fault is not proven, De Cue submitted, the Court has no power under s 17(5) to make an order. De Cue was unable to point to any word or phrase in s 17(5) which either expressly stated fault was required or from which such an implication could be drawn. De Cue instead submitted that such an implication would be drawn from the fact that an order under s 17(1) is an in personam order against the owner or occupier of the brothel. 13 I reject this submission. There is no warrant in the words of s 17(5) or s 17(1) or from the in personam nature of the order under s17(1) to require fault on the part of the owner or occupier of the brothel before the Court has power under s 17(1) to make an order. 14 Further, it would be impossible to draw an implication of a requirement for fault in one situation where operation of the brothel is lawful under the Environmental Planning & Assessment Act 1979 but not in another situation where the operation is unlawful under that Act. I note that neither situation is even referred to in s 17(1). Section 17A does refer to proceedings that can be brought under s 123 of the Environmental Planning & Assessment Act 1979 to remedy or restrain a breach of that Act in relation to the use of premises as a brothel. This is in a different context, namely, the use of circumstantial evidence to find that particular premises are used as a brothel. But it does show that the legislative draftsman was aware of that Act and those proceedings, yet chose not to refer to either in s 17(5). This reinforces the conclusion that s 17(5) is not concerned with fault and lawfulness under that Act. Facts not in issue between the parties 15 There are a number of facts that are not in issue between the Council and De Cue: