Willoughby City Council v Wu [2014] NSWLEC 165

Land and Environment Court New South Wales

Medium Neutral Citation: Willoughby City Council v Wu [2014] NSWLEC 165 Hearing dates: 20 October 2014 Decision date: 20 October 2014 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Declaration that the respondent has not complied with Brothel Closure Order No 2587 issued by the applicant on 27 September 2013 to cease using the land at 218/1 Katherine Street, Chatswood (the Premises) as a brothel or for any related sex uses and, accordingly, is in breach of the Environmental Planning and Assessment Act 1979. (2) Declaration that the respondent has carried out development in breach of s 76A of the Environmental Planning and Assessment Act 1979 being use of the Premises as a brothel without development consent in circumstances where such development is permitted with consent by the Land Use Table of the Willoughby Local Environmental Plan 2012. (3) Order that the respondent by herself, her employees, servants or agents be restrained from using, causing or permitting the use of the Premises: (a) as a brothel; or (b) for related sex uses. (4) Order that the respondent by herself, her employees, servants or agents is to remove within one month of the date of these Orders the partition walls in the premises constructed without development consent and otherwise not in accordance with Development Consent DA 2003/0173 (as modified), and return the Premises to the maximum extent possible to the condition they were in prior to the unauthorised development being undertaken. (5) Order that the respondent pay the applicant's costs of these proceedings. (6) The exhibits may be returned. Catchwords: CIVIL ENFORCEMENT - failure to comply with a statutory brothel closure order issued by a council - carrying out unauthorised development at the subject premises - whether declarations should be made in addition to injunctions - principles relating to declaratory relief. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4, 76A, 96, 121B, 124(1) Land and Environment Court Act 1979 ss 20(2)(c), 71 Restricted Premises Act 1943 s 2 Supreme Court Act 1970 s 75 Willoughby Local Environmental Plan 2012 cl 6.19 Cases Cited: Council of the City of Sydney v Mae [2009] NSWLEC 84 Cutcliffe v Lithgow City Council [2006] NSWLEC 463, (2006) 147 LGERA 330 Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 Great Lakes Council v Lani [2007] NSWLEC 681, (2007) 158 LGERA 1 Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 Massoud v NRMA Insurance Ltd (1995) 8 ANZ Ins Cas 61-257 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, (1988), 194 CLR 355 Ulan Coal Mines v Minister for Mineral Resources (No 2) [2008] NSWCA 251 Willoughby City Council v Chen [2014] NSWLEC 92 Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd [2011] NSWLEC 101 Category: Principal judgment Parties: Willoughby City Council (Applicant) Xiao Yan Wu (Respondent) Representation: COUNSEL: N Eastman and N Hammond (Applicant) N/A (Respondent) SOLICITORS: King & Wood Mallesons (Applicant) N/A (Respondent) File Number(s): 40598/14