Land and Environment Court of New South Wales CITATION : BANKSTOWN CITY COUNCIL v. JOSEPH ATTALLAH [1998] NSWLEC 23 PARTIES : BANKSTOWN CITY COUNCIL v. JOSEPH ATTALLAH FILE NUMBER(S) : 40107 of 1998 CORAM: Cowdroy J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Walsh v Bankstown City Council 96 LGERA 62; CASES CITED: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341; Fatsel Pty Limited v ACR Trading Pty Limited & Another [3] (1987) 64 LGRA 177 DATES OF HEARING: 23 September 1998 DATE OF JUDGMENT: 09/25/1998 Mr A Seton Solicitor LEGAL REPRESENTATIVES: Mr W G Hodgekiss Barrister JUDGMENT: 4 Zoning 1. By Application Class filed 4 June 1998 Bankstown City Council ("the Council") seeks declarations and orders to restrain the use of premises situated at 2 Clements Avenue, Bankstown ("the premises") from being used for the purpose of prostitution. Such premises are located within Zone 4(a) Industrial General "A" under the Bankstown Planning Scheme Ordinance ("the Ordinance"). Within such zone, commercial purposes other than rag collecting and dealing is prohibited. Specifically, the use of a brothel is prohibited in such zone pursuant to Clause 77D as detailed hereunder which was inserted into the Ordinance on 24 April 1998 in consequence of the gazettal on that date of the Bankstown Local Environmental Plan No 201 ("the LEP"). 2. Clause 4(1) of the Ordinance was amended the LEP by insertion of the following definition:- "brothel" means premises habitually used for the purposes of prostitution or are designed for the purpose. Premises may constitute a brothel even though used by only one prostitute for the purposes of prostitution. A brothel cannot, for the purposes of this Ordinance, be considered to be commercial premises or a home business. The second amendment to the Ordinance was the insertion of Clause 77D which provides:- "(1) Despite any other provision of this Ordinance, brothels are prohibited on the land to which this Ordinance applies, subject to subclause (2). (2) A person may, with the consent of the Council, carry out development for the purpose of a brothel on certain industrial land in Villawood, Greenacre, Milperra and South Bankstown, as shown edged heavy black on Sheets 1-4 of the map marked "Bankstown Local Environmental Plan No. 201 (Location of Brothels) deposited in the office of the Council." 3. On 9 June 1998 the Council adopted a Development Control Plan known as Development Control Plan 37 for the Regulation of Brothels within Bankstown City which took effect on 17 June 1998 (hereafter referred to as "the DCP"). The DCP provides controls to regulate the activity of brothels within the industrial area of Bankstown City, and specifies the locations where brothels are permitted, as detailed on maps attached to the Plan. One of the locations where such activity is permitted includes a portion of Clements Avenue but on the opposite side of the road to the premises and further from the intersection of that street with Canterbury Road. The requirements of the DCP include a provision prohibiting brothels being located within 100 metres of a state road. A state road includes, as detailed in Schedule 1 to the DCP, Canterbury Road. The premises are located approximately 40 yards from the intersection of Clements with Canterbury Road. 4. Accordingly, as a result of these recent planning changes, a "brothel" is a permissible use in the designated areas, but the premises are not within the designated area. The Use 5. Evidence adduced in support of the Council's application establishes that the premises are being used for the purposes of prostitution. Pursuant to Clause 4(1), such use renders the premises a "brothel" and therefore a prohibited use. Not only does the Council's evidence establish such use, but also an unchallenged admission was made by the Second Respondent that the premises were being used as a brothel. 6. The Respondents did not challenge use but rather seek a suspension of any order restraining the use. The Respondents rely upon a series of circumstances commencing with the lodgement of a development application by the Second Respondent dated 5 June 1997 seeking permission from the Council to use such premises as a brothel. Such application was refused by Council on 26 June 1997 upon the ground that the proposed was a prohibited use within the General Industrial 4(a) Zone under the Ordinance. An appeal against Council's refusal; was made to this Court and a preliminary question of law was decided against the Respondents (see Walsh v Bankstown City Council 96 LGERA 62). Such decision was delivered on 5 September 1997. Exercise of Discretion 7. In April 1998 a Consultant Town Planner, Mr Victor Schubert of Figgis & Jefferson Planners was engaged to advise the Respondents. In consequence of the investigations made by Mr Schubert, a submission was lodged with the Council which, in summary, seeks an alteration to the LEP to include the premises in the area in which brothels are permitted. A copy of the detailed submission reveals that the premises are located at a distance approximately 50 metres north of the approved zone for brothels in Clements Avenue. Such submission is dated 21 September 1998 and has been provided to Council only days before this hearing. It is the Respondents submission that Council could, in consequence of this application, amend its existing LEP to include the premises and for this reason a suspension for a period of forty-five days of any orders restraining the prohibited use is sought. 8. The Respondents also rely upon the fact that there is no evidence of any complaints concerning the conduct of the illegal use. 9. The Council points to the fact that the current proceedings were instituted only after Notices requiring the cessation of the illegal use had been served upon the respondents on or about 26 March 1998. The matter came before the Court on 2 July 1998 when directions were given for the Respondent to file any affidavit evidence by 30 July 1998. Such date was extended at the call-over held on 4 August 1998 until 18 August 1998. No affidavits were prepared until 15 September 1998. The Council seeks orders having immediate effect. 10. The exercise of the Court's discretion in such matters has been the subject of detailed analysis by the Court of Appeal of New South Wales in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341, and in Fatsel Pty Limited v ACR Trading Pty Limited & Another [3] (1987) 64 LGRA 177. Although the power conferred by Section 124 of the Environmental Planning and Assessment Act 1979 is wide, care must be taken in the exercise of such power. 11. The evidence establishes that the Respondents, despite the rejection by the Council of their development application, and of the preliminary point of law decided by this Court, proceeded to effect building work at the premise without Council approval, for the very purpose of converting the factory premises for use as a brothel. According to their counsel, a state of uncertainty existed concerning the approved areas for brothels until the publication of the LEP in June of 1998. There is no evidence before the Court that the respondents had any valid expectation that the premises would be incorporated in the zone in which brothels were to be permissible under the LEP. 12. This Court has no power to direct a Council to effect changes to the LEP of the type now sought by the Respondents in their submission to the Council, and it is not for this Court to speculate upon the likely outcome of such application. However, the fact that the application has been made, combined with the fact that there is no evidence of any detriment to the public, warrants a short period of suspension to enable Council to express its decision in answer to the Respondents submission. The use, being illegal, should be terminated forthwith but in the circumstances a suspension for a period of one month from the date of this judgment should be adequate for Council's decision. In allowing this period, the Court is mindful that the activity has been carried on in the premises and known to Council since at least March 1998 and no urgent relief has apparently been regarded as necessary to obtain a cessation of the illegal use. Orders 14. The Court makes the following declaration and orders: (1) A declaration that the Respondents by themselves, their servants, agents or assigns are using, suffering or permitting to be used the premises 2 Clements Avenue, Bankstown (hereafter referred to as "the premises") for the purpose of prostitution without the consent of the Applicant having been obtained therefor beforehand. (2) Order that the Respondents by themselves, their servants, agents and assigns be and the same are hereby restrained from using, suffering or permitting to be used the premises for the purpose of prostitution. (3) Order that the Respondents by themselves, their servants, agents or assigns be and the same are hereby restrained from using, suffering or permitting to be used the premises otherwise in accordance with the provisions of the Environmental Planning and Assessment Act 1979. (4) Order that the operation of each of the above orders be suspended up to and including Sunday 18 October 1998. (5) Order that the First and Second Respondents pay the Applicant's costs. (6) The exhibits may be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM ASSOCIATE 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.