Land and Environment Court New South Wales Medium Neutral Citation: Blacktown City Council v Li and Ors [2014] NSWLEC 1046 Hearing dates: 24 February 2014 Decision date: 24 February 2014 Jurisdiction: Class 1 Before: Moore SC Decision: Application dismissed Catchwords: Utilities Order Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Blacktown City Council (Applicant) Xiao Hua Li (First Respondent David Bryson (Second Respondent) Darren Stevens (Third Respondent) Sydney Water Corporation (Fourth Respondent) Representation: Mr S Shneider, solicitor (Applicant) Mr J Szeto, solicitor (First Respondent No appearance (Second Respondent) No appearance (Third Respondent) Submitting appearance (Fourth Respondent) Houston Dearn O'Connor (Applicant) Access Legal Solictors (First Respondent) N/A (Second Respondent) N/A (Third Respondent) Sparke Helmore (Fourth Respondent) File Number(s): 10817 of 2013 Judgment 1SENIOR COMMISSIONER: The application that is presently before the Court is an application for an order pursuant to s 121ZS of the Environmental Planning and Assessment Act, seeking a utilities order proposed to be addressed to Sydney Water to cease the provision of water supply to premises at 5/138 Best Road, Seven Hills. Mr Shneider, who appears on behalf of the council, concedes that, at the present time, the premises are no longer being used as a brothel, as that use has ceased. 2I note, in making that observation, that I am satisfied, on the basis of an affidavit of Malcolm Woodward dated 16 December 2013, that the premises relevantly, for the purposes of establishing a foundation for the brothel closure order that was issued in the first instance to the owners and occupier of the premises, were in fact being used for the purposes of prostitution. 3I also note that for the purposes of founding jurisdiction, the orders being sought against four respondents - the proprietor of the brothel, Ms Li; the owners of the premises, Mr Bryson and Mr Stevens; and Sydney Water - that there was, at least with respect to Ms Li, an effective brothel closure order dated 1 August 2013. To the extent that there was an order described as a brothel closure order served on Messrs Bryson and Stevens dated 17 March 2013, it is not necessarily for the purposes of these proceedings for me to deal with the question of whether that is an order that is valid - given that it is one made jointly on two individuals rather than separate orders served on each individual. That, if necessary, is a matter capable of being dealt with elsewhere on another occasion. 4However, I am satisfied that there was a valid brothel closure order, or possibly several valid brothel closure orders; that there was a failure to comply with it; and that there is a proper foundation for the application made pursuant to s 121ZS. 5I am satisfied, as Mr Shneider has advised me he is instructed, that, as at today's date, the use of the premises as a brothel by the first respondent has ceased. 6It is also appropriate to note at this time that there has been, from the material appended to Mr Shneider's affidavit, a significant interaction between Mr Shneider and his office and the owners of the premises. 7Although there was tendered in the proceedings a set of proposed consent orders which became exhibit C, as I advised Mr Shneider, I was unable to make orders in the terms sought, for two reasons. The first is that I was concerned that I did not have jurisdiction to accept the undertaking that was proposed to be given in writing by the second and third respondents - they being the owners of the premises - because the terms of the undertaking were not responsive to the provisions of s 121ZS but were responsive to the provisions that would arise under s 121ZK had there been an appeal against the brothel closure order itself as originally made. 8Second (and more substantively), I was unable to contemplate the accepting of any undertaking proposed to be given by the second and third respondents, because of what can only be described as their persistent and wilful refusal to engage with the Court in these proceedings. I have had Mr Shneider, on my direction, make contact with the second and third respondents, to suggest to them that if they wish to deal with this matter that they should attend the court to do so. I adjourned the proceedings to permit that to occur, if they wished to attend. 9It is clear from the material that has been tendered and from the material appended to Mr Shneider's affidavit that the attitude of the owners of the property has been one of continued intransigence as to their engagement with the court in these proceedings. There has been no appearance made by either of them, either on their own behalf or through any professional representative at any stage during the course of the proceedings. 10That may well be a matter that needs to be dealt with elsewhere, if there were some further application made, for example an application on such additional costs as might have been incurred by the applicant arising out of the conduct of the second and third respondent, as opposed to the attitude of the first respondent or of the fourth respondent, Sydney Water, an entity that has lodged a submitting appearance save as to costs. 11I note with respect to the first respondent that the first respondent had a solicitor attend on her behalf at the two earlier mentions of the matter before the registrar, they being the first return date on 19 November and a second attendance on 3 December. That solicitor, Mr Szeto, attended this court this morning and filed in court, by leave, a notice of appearance, as he had not formally appeared on behalf of the first respondent on either of the earlier occasions. 12I note that in these proceedings the first respondent's legal representative has given an undertaking to the court consistent with the proposed orders that the first respondent has agreed to pay the applicant's cost as agreed in the amount of $3,000, with payment to be made within 28 days of the date of these orders. There has been, as I have earlier noted, no attendance on behalf of the second and third respondents, and I am obliged to deal with the matter on the basis of their nonattendance, the matter having been called three times outside the court by the court officer at the commencement of the proceedings. 13I turn now to consider whether or not it would be appropriate to proceed to issue a utilities order directed to Sydney Water that that entity cease the provision of the service of water and effluent disposal to those premises for a period of three months from today's date. I am satisfied that s 121ZS(1) requires that as a matter of jurisdictional fact I must be satisfied that there has been a failure to comply with a brothel closure order. 14The opening words of the provision are in the present tense. They do not say "If a person has failed to comply". I am satisfied under the circumstances it is not appropriate to read the present tense as if it encompassed the past tense in these circumstances. It is clear from the provisions of s 121ZS(6) that the matters that are required to be taken into consideration include things that are clearly, presently, presentrelated rather than related to past conduct. As a consequence of that, as there is no present failure - I am satisfied that I do not have jurisdiction to make the order sought. 15Although Mr Shneider has attempted to persuade me that, because of the attitude of the second and third respondents, I should have regard to their failure to engage with the court process as an appropriate matter to be considered as to whether or not, in effect, I should "fire a warning shot across their bow" by reinforcing to them the importance of compliance with such an order by ceasing the water supply for a period of three months, I am satisfied that, as a Commissioner of the Court sitting in Class 1 pursuant to s 121ZS, it is not appropriate for me to take such action. 16If it were appropriate for such an order to be made, it might well be one that could be explored in a different class of the Court's jurisdiction, before a differently constituted bench of the Court, but is not one that is appropriate to be exercised by me in this class of the Court's jurisdiction. 17Although I have a deal of sympathy with the position in which the applicant now finds itself as a consequence of the persistent refusal of the second and third respondents to engage with the Court's process, that is a matter where the additional costs that are falling to the applicant as a consequence are to be considered, if there were to be an application made by the applicant, by a different member of the Court who might have the jurisdiction to make some costs order if they considered that it were fair and reasonable to do so. 18Perhaps I might observe under the circumstances that this is one of the few occasions in Class 1 proceedings where I regret that the former discretion that was available for Commissioners of the Court to make costs orders, subject to the concurrence of the Chief Judge, was no longer available to me. As a consequence, it seems to me that the only option that is available to me under the circumstances is to note the undertaking that the first respondent's legal representative has given on her behalf to pay the applicant's costs as agreed in the amount of $3,000, with payment to be made within 28 days of the date of the order that I now make, that: (1)The application is dismissed. Tim Moore Senior Commissioner 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: 14 March 2014