Land and Environment Court of New South Wales CITATION : Hack and anor v Randwick City Council (No 2) [2010] NSWLEC 1075 APPLICANT Gregory Hack and C. Wang PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10258 of 2009 CORAM: Brown C KEY ISSUES: APPEAL :- Brothel Closure Order LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Hack, Hack and Anor v Randwick City Council [2010] NSWLEC 1053 DATES OF HEARING: 16 February 2010, written submissions 23 March 2010 DATE OF JUDGMENT: 6 April 2010 APPLICANT Dr S Berveling, barrister SOLICITORS Russo & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay, barrister SOLICITORS Shaw Reynolds Bowen & Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 6 April 2010 10258 of 2009 Gregory Hack and C. Wang v Randwick City Council JUDGMENT 1 COMMISSIONER: This is an appeal against two Brothel Closure Orders being Order No. 1 in the Table to s 121B and s 121ZR of the Environmental Planning and Assessment Act 1979 (the EPA Act) issued by Randwick City Council (the council) requiring the applicants to cease using Unit 6, 878-890 Anzac Parade, Maroubra for: a. the purpose of a brothel; or b. the provision of sexual acts or sexual services in exchange for payment; or c. the provision of massage services (other than genuine remedial there appeared massage services) in exchange for payment. 2 The appeal was considered in conjunction with two other separate but related appeals for the same site. Appeal No 10796 of 2009 was an appeal against the refusal by the council of DA/586/2009 to use the site as a brothel and Appeal No 10842 of 2009 was an appeal against the refusal by the council to modify Development Consent No. 778/2005 for a remedial massage therapy centre to allow the site to be used as a brothel. On 16 March 2010, Orders were made dismissing Appeal No 10796 of 2009 and Appeal No 10842 of 2009 (Hack, Hack and Anor v Randwick City Council [2010] NSWLEC 1053). 3 On 16 March 2010, Final Orders were not made for Appeal 10258 of 2009 as Dr Berveling, for the applicant, and Mr Clay, for the council, made differing submissions on the councils Orders, including a question of whether the Orders were invalid. Given the findings on the unsuitability of the site for a brothel in Appeal No 10796 of 2009 and Appeal No 10842 of 2009, I allowed the parties to make further short submissions on the form the Orders should take prior to making Final Orders. It was agreed that any submissions should be filed by 23 March 2009. 4 As set out in the earlier judgment, the submissions made by Dr Berveling and Mr Clay, were: Dr Berveling, for the applicant, submits that that the Order is invalid as it does not comply with the requirements in s 121F – s121K of the EPA Act and also that no reasons were given for the Order. Mr Clay, for the council rejects this submission. He submits that a Brothel Closure Order is exempt from the requirement to comply with s 121F – s121K by way of s 121ZR(2) that states: 2) Natural justice requirements not applicable A person who gives a brothel closure order is not required to comply with sections 121G–121K. Note. Sections 121G–121K provide, among other things, for notice of proposed orders. Sections 121L and 121N apply to brothel closure orders and provide for reasons for an order to be given to the person to whom an order is given as well as information about appeal rights. If the submission of Dr Berveling is that the Order is not a Brothel Closure Order and therefore the exemption does not apply then Mr Clay submits that the Order is plainly a Brothel Closure Order as it is an Order to cease the use of the premises for a brothel. Related sex uses is also a defined term within s 121ZR(1)(c) that states: related sex uses means the following: (a) the use of premises for the provision of sexual acts or sexual services in exchange for payment, (b) the use of premises for the provision of massage services (other than genuine remedial or therapeutic massage services) in exchange for payment, (c) the use of premises for the provision of adult entertainment involving nudity, indecent acts or sexual activity if the entertainment is provided in exchange for payment or if the entertainment is ancillary to the provision of other goods or services . Mr Clay also rejects the submission of Dr Berveling that no reasons are given for the Order because it is clear from the history of the use of the premises, the earlier Order in Class 4 proceedings of the Land and Environment Court and the terms of the Order that the unlawful use of the premises is for a brothel, which is both the circumstances enlivening the power and the reasons for the Order. 5 Dr Berveling responded to the direction of 16 March 2010 by stating that the applicant relies on its previous submissions and does not propose to add to these submissions. Mr Clay also relies on his previous submissions. He presses the form of the Orders the council has already made but that the 5 days for compliance with the Orders should be from the date the Orders made by the Court. This time is appropriate having regard to the history and circumstances of the case and the period time that has elapsed since the Orders were served. Mr Clay submits that the applicant has put nothing to show why a different form of Orders should be made and that the Orders should state: 1. The Brothel Closures Orders issued to Gregory Hack and Cindy Wang on 24 March 2009 are upheld but for the time for compliance with the Orders which is modified so that the Orders must be complied with within five (5) working days from the date of the Final Orders of the Court being made. 6 In considering the competing submissions of Dr Berveling and Mr Clay, I agree with the conclusions of Mr Clay. I am satisfied that the Orders are a Brothel Closure Order and as such is exempt from the requirement to comply with s 121F – s121K of the EPA Act. I am also satisfied that appropriate reasons are given for the Orders. 7 In determining this appeal, s 121ZK(4) of the EPA Act provides: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit 8 The Orders of the Court are; 1. The appeal is dismissed. 2. P ursuant to s 121ZK(4)(b) of the EPA Act, the terms of the Orders issued by Randwick Council on 24 March 2009 to Gregory Hack and C. Wang are endorsed with the exception of the paragraph that states: This order is made in relation to the Subject Premises and must be complied with within five (5) working days from the date when this order, or a copy of this order, were served on you. The Order is modified by the deletion of the above paragraph and its replacement with the following paragraph: This order is made in relation to the Subject Premises and must be complied with within five (5) working days from the date of the Order made by the Land and Environment Court of New South Wales in Appeal 10258 of 2009 on 6 April 2010. 3. The exhibits are returned. _____________ G T Brown Commissioner of the Court 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.