Hurstville City Council v Chang [2011] NSWLEC 1288

Land and Environment Court New South Wales

Medium Neutral Citation: Hurstville City Council v Chang [2011] NSWLEC 1288 Hearing dates: 24 August 2011 Decision date: 25 August 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Utilities order made Catchwords: Section 121B order - Brothel closure order - Enforcement - Utilities order Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 1994 Restricted Premises Act 1943 Category: Principal judgment Parties: Hurstville City Council (Applicant) Ming Chang (Respondent) Representation: Ms J Hewitt, HWL Ebsworth (Applicant) N/A (Respondent) File Number(s): 10487 of 2011

Judgment This determination was given extemporaneously and has been edited prior to publication 1This is an application made by Hurstville City Council under s 121ZS of the Environmental Planning and Assessment Act 1979 (the Act) for orders to enforce a Brothel Closure Order issued on 19 May 2011 to Ming Chang (the respondent) in relation to premises at Unit 1, 12-14 Norman Street Peakhurst (the premises). This matter was heard together with Matter No 10486 of 2011. 2The order made under s 121B (Order 1) of the Act (the Order) directed the respondent to cease using the premises for the purposes of: (a) a brothel, (b) the provision of sexual acts or sexual services in exchange for payment; and (c) the provision of massage services in exchange for payment. 3The reason for the making of the Order was that: The premises are being used as a brothel in which sexual services are being provided in exchange for monetary payment which is a use which requires development consent, but has not been obtained. 4The Order specified five days for compliance. 5The Council's records indicate that the Order was served by delivery to the premises and by mail. On 26 May 2011 the Council's solicitors notified the respondent that the Council had evidence that the premises were still being used for the purposes of a brothel in breach of the order and the Act, and that the Council was proceeding to file an application under s121ZS of the Act for a utilities order. 6The Council filed a Class 1 application on 8 June 2011 seeking orders: 1. An order that the Respondent has failed to comply with the attached Brothel Closure Order issued by the Applicant to the Respondent pursuant to section 121B of the Environmental Planning and Assessment Act 1979 (NSW) on 19 May 2011; 2. An order that the utility companies which service the premises at Unit 1/12-14 Norman Street Peakhurst NSW are to cease providing their service(s) to Unit 1/12-14 Norman Street Peakhurst NSW for a period of 3 months from the date of this Order; 3. An order that the Respondent pay the Applicant's costs of these proceedings; and 4. Such or any further order that this Honourable Court deems fit. 7On 15 July 2011 the Court made an order for substituted service. An affidavit of service was filed on behalf of the Council on 29 July 2011. There has been no appearance by the respondent. 8The premises are part of an industrial estate containing 20 units located in zone No 4 (Light Industrial Zone) under the Hurstville Local Environmental Plan 1994. The use of the premises for the purposes of a brothel is permissible with development consent. The Council records indicate that the owner of the premises has lodged three development applications for the fitout and use of the premises as sex services premises since February 2009, the most recent being lodged on 15 December 2010. That application was considered by the Council's Development Assessment Committee on 8 March 2011, and refused on the basis that there was no consent from the Owners Corporation of the Strata Plan. 9Council's evidence included a copy of a title search for premises, which shows that the owner of the premises is Dong Xing Group Pty Limited, and a copy of a commercial lease between the owner and A Ming & Co, for the term 3 December 2010 to 2 December 2012, which provides that the premises "shall be used only as hardware wholesale and general trading". 10That lease was signed on behalf of the tenant by Ming Chang. The Council's evidence includes a search of the ASIC Register of Companies which shows no record of A Ming & Co. In an email from Mr Philip Ding, an agent of the owner, to Mr Ryan Asplet, Council's Development Compliance Officer, dated 21 January 2011, Mr Ding states that "Ming Chang is the person who signed up a lease for his trading business". 11I am satisfied, based on the documentary evidence, that Dong Xing Group Pty Limited is the owner of the premises at Unit 1, 1214 Norman Street Peakhurst and that Ming Chang is the occupier under the terms of a lease signed on 3 December 2010. 12I am satisfied, based on the Council's evidence from Mr Asplet and an affidavit sworn by Mr Mark Raymundo, town planner, on 17 August 2011, that there is no development consent authorising the use of the premises at a brothel or as a sex services premises. 13Section 121ZS of the Act confers powers on the Court to enforce a brothel closure order: 121ZS Enforcement of brothel closure orders by cessation of utilities (1) If a person fails to comply with a brothel closure order, the Local Court or the Land and Environment Court may, on the application of the person who gave the order, make an order (a utilities order) directing that a provider of water, electricity or gas to the premises concerned cease to provide those services. (2) An order may apply to the whole or part of premises. (3) A utilities order ceases to have effect on the date specified in the order, or 3 months after the order is made, whichever occurs first. (4) An application for a utilities order must not be made unless not less than 7 days notice of the proposed application is given to the following persons: (a) any person to whom the brothel closure order was given, (b) any provider of water, electricity or gas to the premises who is affected by the application, (c) any owner or occupier of the premises. (5) An owner or occupier of premises, or a provider of water, electricity or gas to premises, who is affected by an application for a utilities order is entitled to be heard and represented in proceedings for the order. (6) In determining whether to make a utilities order, the court is to take into consideration the following matters: (a) the effects of the failure to comply with the brothel closure order, (b) the uses of the premises, (c) the impact of the order on the owner, occupier or other users of the premises, (d) whether the health or safety of any person, or of the public, will be detrimentally affected by the order, (e) any other matter the court thinks appropriate. (7) A utilities order must not be made for premises, or any part of premises, used for residential purposes. (8) A provider of water, electricity or gas must comply with a utilities order, despite any other law or agreement or arrangement applying to the provision of water, electricity or gas to the premises, or part of premises, concerned. (9) No compensation is payable to any person for any damage or other loss suffered by that person because of the making or operation of a utilities order or this section. (10) A provider of water, electricity or gas must not, during a period that a utilities order is in force in relation to premises, or part of premises, require payment for the provision of water, electricity or gas services to the premises or part of premises (other than services related to the implementation of the order). (11) The Land and Environment Court or the Local Court may make a utilities order when it determines an appeal against a brothel closure order, if subsections (4) and (5) have been complied with. 14A "brothel closure order" is defined in s121ZR of the Act to mean: ...an order No 1 or No 15 under the Table to section 121B (1) to cease using premises as a brothel or in respect of the use of premises as a brothel, whether or not the order also prohibits the premises from being used for, or relates to the use of the premises for, any related sex uses. 15The term "brothel" is defined in the Act to mean: ...a brothel within the meaning the Restricted Premises Act , other than premises used or likely to be used for the purposes of prostitution by no more than one prostitute. 16The Restricted Premises Act 1943 defines a "brothel" to mean premises: (a) habitually used for the purposes of prostitution, or (b) that have been used for the purposes of prostitution and are likely to be used again for that purpose, or (c) that have been expressly or implicitly: (i) advertised (whether by advertisements in or on the premises, newspapers, directories or the internet or by other means), or (ii) represented, as being used for the purposes of prostitution, and that are likely to be used for the purposes of prostitution. Premises may constitute a brothel even though used by only one prostitute for the purposes of prostitution. 17The Council's evidence included an affidavit sworn by Mr Ryan Asplet, Development Compliance Officer, on 25 July 2011 in which he provides evidence of complaints received by Council about the use of the premises from January 2009 to June 2011; inspections by private investigators on 19 January 2009, 16 March 2009, 7 July 2009 and 28 October 2010; inspections by New South Wales Police on 10 February 2011 and 5 March 2011; newspapers advertisements from 13 January 2009, 15 January 2009, 22 January 2009, 10 March 2009, 31 March 2009, and 16 September 2010; and photographs taken by Council compliance officers on 20 August 2010, 16 December 2010, 24 January 2011, 25 February 2011, 29 March 2011 and 13 April 2011. 18Mr Asplet's evidence included evidence of conversations which he had when he attended the premises on 16 September 2010, telephone conversations made after telephoning the contact number provided in the newspaper advertisements in September 2010, 22 December 2010, 20 January 2011, and 15 March 2011, and his observations on attending the premises on 24 January 2011, 25 February 2011, 29 March 2011 and 13 April 2011. 19In oral evidence Mr Asplet stated that he had telephoned the contact number at 4.30pm on 23 August 2011 and spoke to a woman. He asked her whether the premises were open and she answered " yes ", whether they provided full service and she answered " yes ", and what the price was and she answered " Seventy dollars for a half hour and $100 for a full hour" . He drove to the premises at 5.58pm on 23 August 2011 and observed a red light and an illuminated "open" sign at the premises. Photographs taken by Mr Asplet at that time were tendered in evidence. 20I am satisfied based on the affidavit evidence of Mr Asplet that the premises have been used as a brothel after the date for compliance with the brothel closure order. In particular there is the evidence of Mr Asplet's telephone conversations on 25 July 2011 and 23 August 2011, and the photographs taken by him on 23 August 2011. The content of the telephone conversations is consistent with those recorded earlier by Mr Asplet, and the photographs taken on 23 August 2011 showing external lights and signage at the premises is consistent with the photographs of external lighting and signage taken on earlier inspections. I am satisfied that the respondent has failed to comply with the brothel closure order issued on 19 May 2011. 21The Council's evidence as to notification of the providers of the utility services to the premises is in the form of an affidavit sworn by Ms Oksana Shashko on 10 August 2011,which annexes copies of correspondence with Energy Australia, Ausgrid Australia, TRUEnergy, and Sydney Water. Ms Shashko's affidavit includes evidence of a telephone conversation in which she was advised that Energy Australia has changed its name to Ausgrid and has supplied electricity to the premises up to 1 March 2011 and that the account holder is Dong Xing Group Pty Limited, and that from 2 March 2011 the appropriate contact is TRUEnergy. Ausgrid confirmed by letter dated 29 July 2011 that it would neither consent to nor oppose the Council's application. The Council's evidence does not indicate what TRUEnergy's position is in response to the notification of the application by letter of 29 July 2011, however, I am satisfied that TRUEnergy has been advised of the application. Ms Shashko provides evidence of a telephone conversation with the Debt Recovery Manager of Sydney Water in which she was told that Sydney Water did not wish to be involved in the proceedings and would comply with Court orders. I am satisfied that the providers of water and electricity to the premises have been notified of the application for a utilities order in compliance with s 121ZS(4) of the Act. 22Section 121ZS(6) sets out the matters that must be taken into consideration in determining whether to make a utilities order. (a) the effects of the failure to comply with the brothel closure order: 23The evidence before me includes records of complaints made to the Council since January 2009 from the proprietors of neighbouring businesses and from the Owners Corporation of the strata unit complex in which the premises are located, including complaints of damage to common property and security issues. The Owners Corporation of Strata Plan 64228 obtained an order from the Consumer Trader and Tenancy Tribunal on 9 October 2009 directing the owner of the premises to comply with Special Bylaws 2 and 3 of Strata Plan 64228 and immediately cease operating a brothel and/or massage parlour from the premises. That order was confirmed on appeal. 24The Council's evidence including copies of penalty infringement notices issued to the owner of the premises in 2009, 2010 and 2011 and other notices issued to two individuals. 25I am satisfied that the effects of the failure to comply with the brothel closure order is the continuation of an unauthorised use of the premises which is opposed by the Owners Corporation of the Strata Plan and which has had an impact on neighbouring businesses. (b) the uses of the premises: 26Based on the evidence above, I am satisfied that the use of the premises has been since early 2009 as a brothel. The Council's evidence includes photographs taken of the premises at the various inspections undertaken by Council officers which confirm that building works, including the erection of partitions, plumbing and associated works, have been undertaken at the premises. (c) the impact of the order on the owner/occupier or other users of the premises: 27The impact on the respondent would be, on the evidence before the Court, the cessation of a business which is unauthorised. The owner of the premises consents to the making of a utilities order. (d) whether the health or safety of any person or of the public will be detrimentally affected by the order: 28There is no evidence that the health and safety of a person or the public would be detrimentally affected by the making of a utilities order. (e) any other matter the Court thinks appropriate: 29There is detailed evidence before the Court of long term use of the premises as a brothel as evidenced by the newspaper advertisements and the complaints which commenced before the respondent became the tenant of the premises. There is evidence of consistent attempts by the Council, both before and since then, to have the unauthorised use ended, as evidenced by penalty infringement notices and other orders issued under s 121B of the Act, including a s 121B order issued to the owner of the premises on 20 March 2009. 30Subsection 121ZS(7) requires consideration of where the premises or any part of them are used for residential purposes. The Council submits that this provision is directed at a lawful use for residential purposes and that there is no such lawful use. If s121ZS(7) requires consideration of actual, as opposed to lawful, use for residential purposes, the Council submits that the evidence at its highest is that there may occasionally be people sleeping over at the premises but that otherwise the inclusion of the beds, cooking, facilities and bathing facilities is consistent with the use of the premises as a brothel. The photographs forming part of the Council's evidence confirm that there are beds, kitchen facilities including cooking facilities, and showers on the premises. I agree with the Council that there is no indication from those photographs or from the evidence of the Council officers or police officers who have inspected the premises, of any evidence such as the presence of wardrobes that would support a finding of occupation by the premises as residential premises. I am satisfied that s121ZS(7) would not preclude the making of a utilities order. 31Having regard to the matters specified in s 121ZS(6), I am satisfied that it is appropriate to make a utilities order as sought by the Council. 32The orders of the Court are: 1. Pursuant to s 121ZS of the Environmental Planning and Assessment Act 1979 a provider of water or electricity to the subject premises must cease to provide those services for a period of three months from Friday 9 September 2011. 2. Service of this order on the provider of utility services shall be effected by sending a copy of this order by email and registered post by Wednesday 31 August 2011. 3.Exhibits are returned. Details of Subject Premises Subject premises Strata Plan No 64228 Unit 1, 12-14 Norman Street Peakhurst NSW 2010 Details of Service Provider First: Sydney Water PO Box 399 PARRAMATTA NSW 2124 Second: TRUEnergy Pty Ltd ABN 99 086 014 968 Level 33 385 Bourke Street MELBOURNE VIC 3000 Third: Ausgrid 570 George Street SYDNEY NSW 2000 Linda Pearson 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. Decision last updated: 04 October 2011