For all who follow with interest the course of environmental enforcement in New South Wales, there is a story in the Sydney Morning Herald on 9 March 2015 that is literally amazing!
The paper reports that Hornsby Shire Council has spent $100,000 on an enforcement case against an allegedly illegal brothel (referred to in the paper as the "Hornsby Massage Centre" or "Hornsby Massage Clinic") - and that the case has gone down in flames!!!
The article in the SMH which reports on the outcome of the case can be found at the following link:
http://www.smh.com.au/nsw/show-me-more-sex-judge-tells-council-in-landmark-legal-case-20150308-13vx7g.html
Unfortunately, the judgement handed down in the case, which was reportedly heard in the North Sydney Local Court, has not yet been reported on the Internet (it is unusual for judgements of the Local Court to appear there).
As best as can be deciphered from the article in the SMH, it appears that the Council prosecuted the operator of the alleged brothel under the Environmental Planning and Assessment Act 1979. Presumably, the charge was commenced by means of a Court Attendance Notice and would have claimed that the alleged brothel was operating without required development approval. Although the SMH report says that the Council enforcement action sought "closure of the brothel", as a matter of law this remedy would have been beyond the powers of the Local Court. A Local Court can do no more than impose a penalty (maximum amount $110,000) against a defendant for a breach of the Act; only the Land and Environment Court can grant an injunction to restrain a breach (i.e. to prevent someone from carrying out an activity on land that requires development consent in circumstances where such consent has not been granted).
On the face of the situation, and again presuming that the report in the SMH is accurate, the Council's strategic choices in this case appear, with respect, to be somewhat "strange". It is our opinion (having ourselves handled many cases against brothels on behalf of local councils) that taking a penalty action in Local Court is not a direct or effective way to seek closure of an unlawful brothel. Rather, in our view, it is much more sensible to proceed, in the first instance, through issuing a "Brothel Closure Order" under section 121ZR of the Act. If that initial step does not prompt closure of the premises, then further civil enforcement remedies are available either by way of an action for an injunction to restrain the illegal use or by way of seeking a "utilities order" under section 121ZS to cut off water, electric and gas services to the illegal brothel.
In the event, the report in the SMH indicates that the Council was not able even to get a fine against the brothel owner/operator (it is not clear from the article precisely who the party was who was prosecuted).
Instead, the entire case went "down the chute" because the magistrate who presided over the case (who is not identified in the article) was not satisfied that the premises as operated indeed fell within the definition of "brothel" as provided in the Act. That definition, at section 4, specifies that the term brothel means premises used or likely to be used for the purposes of prostitution by more than one prostitute. The Herald article indicates that, even though the Council hired a private investigator to inspect the premises, the presiding magistrate was not satisfied that the premises were being used by more than one prostitute.
It appears, again, on the basis of the SMH article, that there were numerous problems in the way that the Council ran this case. For one thing, the article indicates that the Council received complaints about the alleged brothel (which was located at a prominent location, near Hornsby Girls High and the Westfield Shopping Centre in Hornsby) in January 2014, and yet the prosecution was not heard before the Local Court until mid-January 2015. Thus, it appears that a substantial time period elapsed after the Council first received complaints until the charge was filed (in the ordinary course it should take far less than a year's time for a charge in the Local Court to be brought to hearing). Again, it appears that in the year that elapsed from the time that the Council first received complaints, it could easily have issued a Brothel Closure Order and sought enforcement of such an Order in the Land and Environment Court.
Secondly, it seems plain that the Council should have made certain that it was in possession of proof that the premises were being, or were likely to be, used by more than one prostitute before it went forward with the charge (if it indeed it was the case that the Council lacked such proof, as appears to be the case from the report in the SMH).
If there is one saving grace about this story, it is that the SMH's characterisation of the Local Court's decision as a "benchmark" is almost certainly incorrect, because decisions of the Local Court have very little value as precedents and surely are not binding on the Land and Environment Court or other courts of superior jurisdiction in NSW. It is indeed a shame, however, that the Council's enforcement objectives have apparently not been achieved, and that such a large amount of ratepayers' money was lost in this failed enforcement proceeding (in our experience, $100,000 seems to be an exceptionally high cost for any enforcement action in the Local Court, and it is altogether unclear from the SMH report exactly why the Council's costs of running this case were as high as they were).
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