Court Finds Brothel Use Not Amenable to SEPP 1 Objection

Justice Biscoe of the Land and Environment Court has ordered a brothel in Chatsood's main business district to close its doors. The orders were made in a judgement that was handed down on 15 June 2011, Willoughby City Council v Spa and Beauty Relaxation Centre Pty Ltd, (2011) NSWLEC.  

Willoughby Council based its application to restrain the operation of the brothel on three separate grounds:

1. The premises were being used as a brothel in contravention of two separate "Brothel Closure Orders"that had been issued by the council under section 121B of the Environmental Planning and Assessment Act;
2. The premises were in breach of a condition of a development consent that had previously been issued that authorised the use of the premises only as a "health and relaxation centre".  The condition stipulated that ""no body massage or sex"was to be offered; and
3. The brothel was operating contrary to a provision of the Sydney Regional Environmental Plan No. 5 (Chatswood Town Centre) which specified that development for the purposes of a brothel was "prohibited"in circumstances where the premises in question were within 100 metres of another brothel for which consent had been granted.

The operator of the brothel defended the proceedings only against the third grounds: she submitted that the provision of the SREP declaring that two brothels could not be operated within100 metres of each other was not in fact a prohibition, but only  a"development standard".  She further submitted that if the Court concluded that the provision was indeed a development standard, it was not compelled to exercise its discretion to close the brothel, and that it could either refuse the remedy sought by the council or adjourn the case so that a development application could be pursued.

Justice Biscoe rejected the suggestion that the clause in the SREP  was a development standard that could be varied.  Instead, His Honour found that the clause in the SREP was a prohibition which prevented two brothels from being operated in close proximity. In reaching this conclusion, Justice Biscoe found it persuasive that the specific wording of the SREP made reference to a "prohibition".

In any event, Justice Biscoe found that resolving the question of whether the SREP constitutes a development standard or a prohibition was not necessary to determination of the proceedings - His Honour concluded that the fact that the premises had been operating in direct breach of the condition of the consent banning their use as a brothel was reason enough to grant the council's application for a restraining order.

The link to the judgement is:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152664

The Land and Environment Court generally has little tolerance for illegal brothels, and this case was no exception.