Land and Environment Court of New South Wales CITATION : Fairfield City Council v. Taouk & Ors [1998] NSWLEC 147 APPLICANT The Council of the City of Fairfield PARTIES : RESPONDENT Taoul & Anors FILE NUMBER(S) : 40309 of 1997 CORAM: Lloyd J KEY ISSUES: :- Environmental Planning and Assessment Act 1979, ss 76(3), 123, 124 LEGISLATION CITED: Disorderly Houses Act 1943, Pt 3 s 17 Interpretation Act 1987, s 34 Fairfield Local Environmental Plan 1994 (Amendment No 15) Warringah SC v Sedevcic (1987) 10 NSWLR 335 per Kirby P at 339; CASES CITED: Ashfield MC v Andrews (1986) 60 LGRA 249; Sydney City Council v Howard (Land and Environment Court, NSW, Stein J, 11 February 1986, unreported); Fairfield City Council v Grey (Land and Environment Court, NSW, Stein J, 28 October 1985, unreported) DATES OF HEARING: 11/06/98 DATE OF JUDGMENT: 06/24/1998 APPLICANT W P O'Rourke (Solr) Deacons Graham & James LEGAL REPRESENTATIVES: RESPONDENT J S van Aalst Valenti & Valenti JUDGMENT: 1. The applicant seeks an injunction to restrain the respondents from using premises known as 113A Ware Street, Fairfield (Athe premises@) for the purpose of a brothel or for similar purposes. The first and second respondents are the directors and shareholders of the third respondent, Miz Pty Ltd. The third respondent is the lessee of the premises and is in turn carrying on business at the premises under the registered business name of Butterfly Escorts. The fourth respondent is the owner of the premises. The fourth respondent has entered a submitting appearance save as to costs. This proceeding is brought by the applicant pursuant to the Environmental Planning and Assessment Act 1979, s 123 for a breach of s 76(3) of that Act. The Relevant Facts 2. There is no dispute as to the essential facts. Mr J S van Aalst, who appears for the first, second and third respondents, admits that the premises are being used for the purpose of a brothel. Mr W P O=Rourke, who appears for the applicant, admits that the applicant has known of the existence of the brothel at the premises since February 1991. 3. On 8 May 1996 the first and second respondents lodged a development application for a brothel at the premises. The development application was made following inspections of the premises by officers of the applicant. A brothel was then a permissible use with the consent of the applicant within a business zone, which applies to the premises. 4. On 22 August 1997, Fairfield Local Environmental Plan 1994 (Amendment No 15) was published in the New South Wales Government Gazette, under which brothels became prohibited in business zones (inter alia). Four days later, on 26 August 1997, the applicant refused its consent to the development application. It did so after having taken in excess of fifteen months to determine the application. On 4 December 1997 the applicant commenced the present proceeding. 5. The premises comprise the whole of the upper floor of a building known as 111-121 Ware Street. The building is within the central business district of Fairfield. The lower floor of the building is comprised of two shops, one of which is used as offices for a credit union and the other for the business of a hairdresser. Public access to the premises is obtained by a single doorway at the Ware Street frontage which opens to stairs leading to the upper floor of the building. The only identification of the brothel is the street number of 113A. There is a fire stair at the rear of the premises which provides access to a public laneway. There is ample parking in the vicinity, most of which is little used after 6pm when most customers attend the brothel. The subject premises are not within view from any church, hospital, school or any place regularly frequented by children for recreational or cultural purposes. The nearest church is about 200-250 metres away. There is no bus stop nor any railway station nearby. T he only evidence of any complaint are four complaints from persons of unknown address who object to the presence of the brothel on moral grounds. The applicant advertised the development application and received three objections, one of which appears to be from a school principal, but again they are all based on moral grounds. In addition to the three objections, the applicant received a response to the development application from the Patrol Commander and the Sergeant of police at Fairfield which states: AFrom the information supplied by the Fairfield City Council the premises mentioned have been operating as a brothel for a number of years without problems. The operation appears to have not caused any problems associated with their present location. The location mentioned in the attached file is situated near a number of business premises within the Fairfield Central Business District. There appears to be no concern with the location as the premises are not near any schools or churches.@ In short, there is no evidence of any environmental or other harm or disturbance caused by the carrying on of the business of a brothel at the premises. The Respondents= Submissions 6. Mr van Aalst submits that the Court has no jurisdiction to grant the applicant the relief which it seeks. He relies on Pt 3 of the Disorderly Houses Act 1943. In particular, s 17 relevantly provides as follows: A17. Application to Land and Environment Court for premises not to be used as a brothel (1) The Land and Environment Court may, on application by a local council, 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 purpose of a brothel. (2) The local council must not make an application in relation to a brothel unless it is satisfied that it has received sufficient complaints about the brothel to warrant the making of the application. (3) The complaints must have been made by: (a) residents of the area in which the brothel is situated who live in the vicinity of the brothel, or (b) residents of the area in which the brothel is situated who use, or whose children use, facilities in the vicinity of the brothel, or (c) occupiers of premises that are situated in the area in which the brothel is situated and in the vicinity of the brothel. (4) The application must state the reasons why the local council is of the opinion that the operation of the brothel should cease based on one or more of the considerations referred to in subsection (5)(a), (b), (c), (d), (e) or (f). (5) 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 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 and Environment Court considers is relevant. Y@ 7. Mr van Aalst submits that subss (2) and (3) of s 17 have not been satisfied in this case; and unless those subsections are satisfied the court cannot make the order sought. There are, he submits, no Asufficient complaints@ about Athe brothel@ within the meaning of subs (2). The only complaints made were of a general nature and which are based on moral objections. The objections made in response to the advertising of the development application are not complaints about the conduct of the brothel but an objection to a development application. Those objections are similarly based on moral considerations. Mr van Aalst also submits that there is no evidence that any of the complaints come from residents of the area in which the brothel is situated, so that the requirements of subss (3)(a) and (b) are not satisfied. It appears, however, that the objection to the development application made by the principal of a local school may satisfy subs (3)(c). 8. Next Mr van Aalst submits that even if the court has jurisdiction, none of the discretionary considerations set out in subs (5) of s 17 would lead the Court to grant the relief sought, with the possible exception of par (g) which might include the provisions of the local environmental plan, in particular, there is no evidence to suggest that pars (a) to (f) apply to the facts of this case. 9. Mr van Aalst accepts that the proceedings are brought by the applicant pursuant to s 123 of the Environmental Planning and Assessment Act for a breach of s 76(3) of that Act. Part 3 of the Disorderly Houses Act, however, was inserted into that Act by the Disorderly Houses Amendment Act 1995. It is, thus, a later enactment than the Environmental Planning and Assessment Act. Moreover, s 17 is a specific provision relating to brothels. Accordingly, he submits that since there is an inconsistency with the Environmental Planning and Assessment Act then the later and specific provisions prevail. 10. Finally, Mr van Aalst submits that if his submissions above are not accepted, then in the exercise of its discretion the Court should refuse relief in view of the long period of time for which the applicant has known of the operation of the brothel before taking action, the suspicion that the applicant deliberately delayed its determination of the development application until Amendment No 15 to the Fairfield Local Environmental Plan was made, the absence of any specific complaints about the operation of the brothel and the absence of any environmental or other harm. The Applicant=s Submissions 11. Mr O=Rourke submits that the jurisdiction conferred on the Land and Environment Court under the Environmental Planning and Assessment Act, s 123 to restrain breaches of that Act indicates the importance which the legislature attaches to the Court=s ability to fulfil this function. It would therefore require clear and unambiguous words in a subsequent statute to deprive the Court of this jurisdiction in relation to the operation of brothels. 12. Mr O=Rourke submits that there is no genuine inconsistency in the operation of the Disorderly Houses Act and the Environmental Planning and Assessment Act. Section 17 of the Disorderly Houses Act is an additional source of power to control the use of brothels and is thus independent of the Court=s power to restrain conduct which breaches the Environmental Planning and Assessment Act. Mr O=Rourke further submits that there will be many cases such as the present where there is an acknowledged breach of a planning instrument but in all probability no breach of the Disorderly Houses Act, and that this circumstance is not enough to oust the Court=s jurisdiction conferred by s 20(2) of the Land and Environment Court Act to restrain such a breach of the Environmental Planning and Assessment Act. Mr O=Rourke submits that if the respondent=s argument is accepted, no action could be taken by the Court in an instance where the owners or operators of a brothel breached conditions of development consent unless an appl ication under s 17 of the Disorderly Houses Act could be sustained, and moreover that such a result would be absurd. 13. Mr O=Rourke further submits that the interpretation for which he contends on behalf of the applicant derives support from the text of the Minister=s second reading speech on the Disorderly Houses Amendment Bill in 1995. Although Mr O=Rourke made no express submission on this point, it is clear that he considers that there is sufficient ambiguity in the Disorderly Houses Act, Part 3, or its application in the manner contended for by Mr van Aalst would lead to a result that is so manifestly absurd, that recourse to this extrinsic material is permissible. He cites the following passages from the Minister=s speech: AIt is not our intention with the introduction of these measures to limit those applications appropriately based on planning controls vested under the Environmental Planning and Assessment Act 1979. The only change to existing law to be effected by this proposal will be regarding the basis for, and the jurisdiction of, applications under the Disorderly Houses Act to close a brothel which is not otherwise disorderly@ (Hansard Report, p 1188); and ASection 20 of the Land and Environment Court Act 1979 is amended to include applications under proposed new section 17 of the Disorderly Houses Act 1943 in class 4 of the jurisdiction of the Land and Environment Court which deals with environmental planning protection, among other things. This jurisdiction is also used for applications to close brothels which are based on planning controls under the Environmental Planning and Assessment Act. (my emphasis) (Hansard Report, p 1189) 14. Mr O=Rourke therefore submits that the jurisdiction of this Court to make orders restraining the use of brothels under s 17 of the Disorderly Houses Act and s 123 of the Environmental Planning and Assessment Act is not inconsistent because the power envisaged by the two Acts in relation to making orders restraining brothels applies to different situations, as is revealed by the words of those statutes and the intent of Parliament in enacting them. 15. Mr van Aalst made some additional written submissions in response to Mr O=Rourke=s reliance on the Minister=s second reading speech, with the knowledge and consent of the applicant=s solicitor. He submits that the meaning of Part 3 of the Disorderly Houses Act is clear and unambiguous and that therefore the Court may not have recourse to the Minister=s second reading speech in order to assist in its interpretation of this Part. In the alternative, if the Court does consider that it can have recourse to the Minister=s second reading speech, that speech indicates that Part 3 of the Disorderly Houses Act was intended by Parliament to exclusively govern applications by councils for orders against the operation of brothels, and that in enacting Part 3 of the Disorderly Houses Act Parliament has intended to remove from councils the right to apply to the Court for the closure of brothels except in accordance with Part 3 of that Act. The Relevant Principles 16. The first issue which in contention between the parties is whether Part 3 of the Disorderly Houses Act discloses sufficient ambiguity, or its meaning leads to a result that is manifestly absurd or unreasonable, so as to permit the Court to have recourse to the Minister=s second reading speech. The Interpretation Act 1987 permits recourse to extrinsic material if a provision is ambiguous or obscure (s 34(1)(b)(i)) or if the ordinary meaning conveyed by the text of a provision leads to a manifestly absurd or unreasonable result (s 34(1)(b)(ii)). The Act specifically includes a Minister=s second reading speech as a permissible source of extrinsic material (s 34(2)(f)). Where a Minister=s second reading speech Aclearly indicates which of two interpretations was intended@, it is nevertheless not automatically determinative of the issue of which interpretation should be preferred (Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed, Butterworths 1988, p 47). 17. As I understand Mr van Aalst=s submission, it is that Part 3 of the Disorderly Houses Act prevails over s 123 of the Environmental Planning and Assessment Act and renders the latter without any effect in this State regarding the operation of brothels, despite the fact that the former Act makes no mention of any such intent to have such an effect, and in the absence of any repeal or amendment of s 123 by Parliament. The force of this submission is necessarily difficult (although certainly not impossible) to sustain. I refer to the useful discussion of the implied repeal of a Statute by a later statute dealt with by Pearce and Geddes, supra, pp 146-150. It is unnecessary to examine that discussion in detail, save as to note that there is a very heavy onus on the party who seeks to claim that a later statute has impliedly repealed an earlier statute. Mr van Aalst submits not only that this is the case in this instance, but also that this has been achieved without any ambiguity in the interpretation of Part 3 of the Disorderly Houses Act or without any absurdity or unreasonableness in its application. That is to say, Mr van Aalst submits that the implied repeal of the operation of s 123 of the Environmental Planning and Assessment Act insofar as it relates to brothels by Part 3 of the Disorderly Houses Act is clear and unambiguous from the words of the latter Act. This submission, in my opinion, is incorrect. There is sufficient absurdity or unreasonableness in the operation of Part 3 of the Disorderly Houses Act for this Court to have recourse to extrinsic materials which aid in the interpretation of it. 18. The next question is therefore what intent is evinced by the Minister=s second reading speech. I have above referred to the passages of that speech upon which Mr O=Rourke relies (par 13). Mr van Aalst cites the following passage (which is part of a passage also cited by Mr O=Rourke) in advancement of his contention that the Minister=s speech supports his interpretation of the Disorderly Houses Act: AThe only change to existing law to be effected by this proposal will be regarding the basis for, and the jurisdiction of, applications under the Disorderly Houses Act to close a brothel which is not otherwise disorderly@ (Hansard Report, p 1188). This is a clear intention on the part of the Minister that the only change to the current law effected by the Disorderly Houses Act, Part 3, relates to applications made under that Act. In this proceeding there is no application under that Act. This passage, along with the other passages from the speech cited above, clearly demonstrate the Parliament=s intent in enacting Part 3 of the Disorderly Houses Act. That intent is to leave unaffected the regime for applications for relief against brothels by councils under the Environmental Planning and Assessment Act. 19. The Minister=s second reading speech clearly indicates which of the competing interpretations proffered by the parties is intended by Parliament. However, as I understand the law, that does not axiomatically oblige me to follow that interpretation if there is a clear indication to the contrary in the legislation or in its application. Notwithstanding that, the intention evinced by Parliament is so clear from the Minister=s speech that there would have to be a compelling argument to the contrary to persuade me that an alternative interpretation should be preferred. The argument proffered by Mr O=Rourke for the applicant demonstrates that the two Acts can operate without inconsistency. The activity with which the two Acts are concerned is different. The Environmental Planning and Assessment Act is concerned with brothels which breach relevant planning laws, while the Disorderly Houses Act is concerned with brothels which breach the various criteria established in s 17(5). It is therefore clear, with the aid of the Minister=s second reading speech, that the Parliament intended that the Acts operate together and that they are complementary in their operation. Discretion 20. It is thus clear that this Court can consider the applicant=s application to restrain the respondents pursuant to s 123 of the Environmental Planning and Assessment Act for a breach of s 76(3) of that Act. Section 124(1) of that Act establishes that: AWhere the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach@. The discretion the Court under this section is unfettered; Warringah SC v Sedevcic (1987) 10 NSWLR 335 per Kirby P at 339. Relevant factors for the Court=s consideration in this case include whether the breach complained of is purely technical; any delay in instituting the proceeding; the necessity of upholding the integrated and coordinated nature of planning law; whether the application for enforcement of the Act is made by a public authority; and whether the application of these general factors will produce an unjust result in the circumstances of the particular case (Sedevcic at 339-341). 21. Mr van Aalst submits that the Court should refuse to grant the applicant relief in the exercise of its discretion under s 124 of the Environmental Planning and Assessment Act. Prior to considering the factors in favour of the respondents in the exercise of the Court=s discretion in this case, it should be shortly stated that the relief sought by the applicant ought to be granted. The Court should not sanction a continuing breach of planning laws which are administered by a council in the absence of some compelling reason to the contrary. There is, as pointed out by Kirby P in Warringah SC v Sedevcic, a public interest in upholding the integrated and coordinated nature of planning law (at 340). 22. The Disorderly Houses Act is a specific statute which relates to the operation of brothels in this State. While I have found that it is the Environmental Planning and Assessment Act which is the relevant statute in this proceeding, I consider that the factors mentioned in the Disorderly Houses Act can properly be considered by me in the exercise of the Court=s discretion under s 124 of the Environmental Planning and Assessment Act. The Disorderly Houses Act is a >brothel-specific= statute which operates in a complementary way to the Environmental Planning and Assessment Act. Section 17 of the Disorderly Houses Act requires (prior to permitting a Council to apply to the Court for orders restraining the operation of a brothel) sufficient complaints to have been made (subs (2)) by residents who live in the brothel=s vicinity (subs (3)(a)); or by residents who use, or whose children use facilities in the brothel=s vicinity (subs (3)(b)); or by occupiers of premises situated in the vicinity of the brothel (sub s (3)(c)). The applicant=s evidence in this proceeding might at best satisfy only subs (3)(c) of s 17, and the question of the sufficiency of the complaints would be something that it would have great difficulty in demonstrating, as the complaints are few in number and do not specifically relate to any adverse effect of the operation of the brothel in question. 23. The considerations listed in subs (5) of s 17 which the Court is required to consider before making an order under s 17 include the following: whether the brothel operates near a church, hospital, school or any place likely to attract children (subs (5)(a)); whether the brothel creates a disturbance in the neighbourhood (subss (5)(b) and (e)); whether the brothel has sufficient off-street parking (subs (5)(c)); whether there is suitable access to the brothel (subs (5)(d)); or whether the brothel interferes with the amenity of the neighbourhood (subs (5)(f)). In this case there is no evidence of the third respondent=s business causing any disturbance in the neighbourhood - it has been in use for an extended period of time without incident; nor is it located near a church or school or area where children would be likely to visit for a recreational or cultural purpose; nor is there evidence of any impact of the brothel on the amenity of Fairfield. Moreover, there is evidence that the brothel has access to am ple off-street parking, and access to it is either from the public laneway at the rear or from an unobtrusive entrance via a single doorway on Ware Street. If the applicant=s application were made under the Disorderly Houses Act it would have little chance of obtaining an order restraining the premises from being used as a brothel because it has not received sufficient complaints from the nominated classes of people required under subs (3) of s 17. Moreover, the brothel in question satisfies almost every criteria established by the Act under subs (5) of s 17. In this regard I also refer to the Minister=s second reading speech when introducing the relevant amendments to the Disorderly Houses Act: AThe overriding consideration is that the brothel operates in a discreet manner consistent with the amenity of the neighbourhood@ (Hansard, p 1188). 24. The above factors, which appropriately indicate the matters with which the parliament is concerned in assessing the impact of brothels, together with the other factors mentioned below, indicate that the relief sought by the applicant ought be Asoftened@ by postponing the relief which the applicant seeks. The delay by the applicant in instituting these proceedings; the suspicion that the applicant may have deliberately delayed its determination of the third respondent=s development application until the making of Amendment 15 to the Fairfield Local Environmental Plan; the fact that the breach is technical in nature; and the fact that the application of the relevant planning instrument, will in this instance produce a harsh result, all operate in the respondents= favour. The respondents ought to be allowed adequate time to relocate their business to a area which is zoned for the purpose of a brothel. As Kirby P said in Warringah SC v Sedevcic (at 341): A[The discretion under s 124] permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this >softening= can be achieved by postponing the effect of injunctive relief.@ 25. The applicant also seeks relief against the fourth respondent, who is the owner of the premises on which the third respondent operates its business. Ashfield MC v Andrews (1986) 60 LGRA 249 concerned an application for costs following proceedings brought by the council against, inter alia, the owners of premises which were leased. The Court was required to consider the implications of mere ownership of premises in instances where the use of those premises are in breach of the Environmental Planning and Assessment Act. Cripps J held that the owners were not relevantly carrying out development pursuant to s 76(3) of the Act and were therefore not in breach of that Act. That is the same section which the applicant in the present case alleges the fourth respondent has breached. Cripps J also followed two decisions of this Court (Sydney City Council v Howard (Land and Environment Court, NSW, Stein J, 11 February 1986, unreported) and Fairfield City Council v Grey (Land and Environment Court, NSW, Stein J, 28 O ctober 1985, unreported): A[which] established that mere ownership of a building the subject of a lease is insufficient to entitle the council to a restraining order...@ (emphasis by his Honour) (at 250). Cripps J held that the claim against the owners would have been dismissed and awarded the respondent owners their costs. In this proceeding there is no suggestion that the fourth respondent had any involvement in the third respondent=s business, and it is appropriate that I should follow the decision of Cripps J. The fourth respondent has filed a submitting appearance. It is therefore also appropriate that I make no orders against the fourth respondent, neither should I make any orders for costs against the fourth respondent. Orders 26. Accordingly, I make the following orders: (1) That the first, second and third respondents be restrained, jointly and severally, from using, permitting, causing or allowing to be used, aiding, abetting, causing, procuring or being knowingly concerned in the use of the premises, being Lot 2, Strata Plan 33506, Nos 111-121 Ware Street (also known as 113A Ware Street), Fairfield for any of the following particular purposes: (i) a brothel (as defined in the Disorderly Houses Amendment Act 1995) (ii) a place for the entertainment of male or female persons; or (iii) an escort agency. (2) Such order is postponed for eighteen (18) months from today=s date. (3) The first, second and third respondents are to pay the applicant=s costs. (4) There is no order for costs against the fourth respondent. (5) The exhibits may be returned. 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.