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Love thy neighbour: the church and the mosque

Feature Articles

Cite as: March 2015 89 (3) LIJ, p.46

VCAT focused on the "significant social effects" when deciding whether to allow the proposed development of a mosque next to an Assyrian Christian Church.

By Charles Noonan

Rutherford & Ors v Hume CC (Red Dot)1(Rutherford) concerned a controversial proposal of a new mosque in Melbourne’s outer northern suburbs next to an Assyrian Christian Church, many members of which fled persecution and human rights abuses in Iraq at the hands of Islamic extremists. In a complex and challenging set of circumstances, this case raised significant considerations of how a place of worship is assessed for planning purposes and important questions regarding land use compatibility, and it provides an enlightening illustration of how significant social effects and amenity impacts will be assessed by decision makers. In particular, this is the first case to closely examine the “significant social effects” of a proposed use or development since it became a mandatory consideration in planning applications. Through analysis of a case that presented a number of difficult sensitivities and social issues not commonly raised in planning disputes, this article will examine how the Victorian Civil and Administrative Tribunal (VCAT) decided this case according to law and having regard to the relevant provisions of the Planning and Environment Act 1987 (Vic)(the Act).

The proposed development

The Al Sadiq Foundation sought planning approval for an Islamic mosque and related facilities on its 9000 square metre site in Kyabram Street, Coolaroo, Victoria. The membership of the Al Sadiq Foundation is comprised predominantly of Lebanese-Australians and the proposed mosque was intended for use by members of the Shia branch of the Islamic faith. The proposed mosque had capacity for 1500 people and made provision for 228 car parking spaces. Controversially, the mosque was proposed to be developed on land immediately adjacent to St Mary’s Ancient Church of the East (St Mary’s Church), membership of which is comprised predominantly of people of Assyrian background and includes many people who have suffered traumatic experiences in Iraq due to the actions of Islamic extremists.2 St Mary’s Church is the only church of its kind in Melbourne for followers of its Christian denomination headquartered in Iraq. Similarly, the proposed Shi’ite mosque would be the only one of its kind in the area.

Council decision and application for review

In August 2013 the Hume City Council resolved to grant a planning permit for development of the mosque subject to certain conditions contained in the permit. Mr John Rutherford and nine other joint applicants (the Applicants) sought review of the Council’s decision to grant the permit in VCAT. While the bases for review initially covered a broad range of grounds including architectural matters, traffic, parking and the suitability of the mosque within an Industrial 3 Zone, many grounds were subsequently withdrawn or not relied on. The review hearing proceeded on the basis that only two grounds of review required formal determination, namely the significant adverse social effects of the proposed mosque and its adverse amenity impacts.3 While adverse amenity impacts embrace “all the features, benefits and advantages inherent in an environment or locality”,4 these two grounds of review were “intrinsically linked” in the sense that they arose from the same factual circumstances and largely relied on the same evidence.5 The way in which VCAT dealt with the social effects of the proposed development will be the primary focus of this article.

Religious freedoms and social effects in planning disputes

The difficulties regarding religious freedoms and significant social effects in planning applications are not new and have been the subject of controversial planning disputes in previous cases. In the seminal case of New Century Developments Pty Ltd v Baulkham Hills Shire Council,6 Lloyd J upheld an appeal against a decision of the Baulkham Hills Shire Council to refuse a planning permit for the development of a mosque in western Sydney. Despite strong community opposition to the mosque, fears of antisocial behaviour arising from its development and submissions that the mosque was “antipathetic to the shared beliefs, customs and values of the local community”,7 Lloyd J held that the proposed development would not have an adverse social impact on the area.8 His Honour noted that fears that the mosque would cause adverse social effects within the community were ill-conceived and further explained:

“The consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect . . .”9

Citing the remarks of Mason P in House of Peace Pty Ltd v Bankstown City Council,10 Lloyd J also endorsed the proposition that planning law “is concerned with the use of land – not the identity of the user” and emphasised that the focus must be on the physical building that is proposed and on the impact that the building and its use will have.11

VCAT’s decision

Similar to New Century Developments, in Rutherford VCAT recognised the need to determine the dispute according to law and with regard to the relevant provisions, policies and guidelines of the Act.12 In affirming the Council’s decision to grant the planning permit, VCAT highlighted the following key reasons for its decision:13

  • all religious groups are free to practise their faith and are entitled to facilities and services to make this possible, including places of worship;
  • for planning purposes in Victoria, a “place of worship” does not discriminate between faiths and it is not incompatible (in a town planning sense) for one place of worship to be sited adjacent to another;
  • religious freedom and equality is enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic);14 and
  • town planning decisions should not achieve an outcome that effectively replicates in Australia the same divisions, fear and distrust that members of particular religious groups have experienced overseas, but rather should reflect Australia’s rich and proud history of welcoming people of all faiths.

In Canterbury Municipal Council v Moslem Alawy Society Ltd15(Moslem Alawy), McHugh J cautioned that courts should be reluctant to interpret a statute in a way that would prevent use of premises by some (but not others) within the community who wish to practise their religion. While observing that the circumstances in Moslem Alawy were not directly analogous to the facts in Rutherford, VCAT nevertheless adopted this principle of statutory interpretation.16

“Significant social effects”

In VCAT’s detailed reasons that followed, it turned to the question of whether the “proposal would have a significant social and economic effect on the locality” in the sense that developing a mosque next to the St Mary’s Church would have a “significant detrimental impact on the church community”.17 Section 60(1)(f) of the Act states that, before making a decision to grant or refuse a permit application, the relevant decision maker must consider “any significant social effects and economic effects which the responsible authority considers the use or development may have”. While significant social effects were traditionally a discretionary consideration that the decision maker “may, if the circumstances require” consider,18 the Planning and Environment Amendment (General) Act 2013 (Vic) now deems this a mandatory consideration for the decision maker.19 While a number of decisions have considered “significant social effects” as a discretionary factor in planning applications, this was the first decision to examine this consideration since its status was elevated to a mandatory consideration on 28 October 2013.

Key characteristics

Before considering the substantive bases of the Applicants’ submissions on this point, VCAT conveniently identified a number of characteristics of this consideration in the context of the Act. VCAT explained that:

  • the social effects to be considered are those effects that the decision maker deems to be significant, rather than those simply contended to be significant by a particular party;20
  • there must be a causal connection between the significant social and economic effects and the use or development proposed in the permit application;21
  • under the Act, significant social and economic effects have been traditionally viewed as capable of affecting the community at large, or a particular identifiable section within the community, rather than an individual or small group of individuals;22
  • consideration of social and economic effects should be based on a proper evidentiary basis or empirical analysis rather than philosophical, moral or religious values;23
  • mere opposition by a section of the public, or a large number of objections, is not of itself evidence of a social effect;24
  • social or economic effects must be sufficiently probable to be significant;25 and
  • the presence of a significant adverse social effect will not necessarily be determinative in itself; the social effect must be balanced alongside all other relevant planning considerations.26

Whether significant social effects established

VCAT then considered whether any significant social effects had been established by the Applicants. VCAT held that, save for one exception, there was “insufficient material of probative weight to establish a relevant social effect that the use or development may have . . . or that the effect (even if potentially relevant) is significant”.27 It noted that the material submitted by the Applicants to support the significance of adverse social effects in the case before it was “far less than would ordinarily be appropriate or necessary to establish the ground in a proceeding such as this”.28 VCAT also noted that a formal social impact assessment, or a balancing of other relevant factors, would have provided more substantial evidentiary value and would have been of a greater probative weight.29

Possible outbreak of violence

While the Applicants adduced evidence from Archdeacon Hirmiz regarding the possibility of members of St Mary’s Church committing acts of violence against Muslims attending the mosque, the Archdeacon acknowledged that no threats had been received from those associated with the mosque proposal, indicated a willingness of the two faiths to cooperate in relation to this matter, and noted that such violence would be contrary to the teachings of tolerance and understanding within the Church.30 As VCAT was presented with “no evidence of a real likelihood of violence stemming from the siting of this proposed mosque adjacent to the St Mary’s Church”,31 it was not persuaded that an outbreak of violence was a likely consequence of the approval of this development and therefore deemed that this was not a significant social effect for the purposes of this permit application.

Feeling affronted by the mosque

Despite this, VCAT accepted that there was at least an arguable significant social effect raised by the Applicants, namely the potential for members of St Mary’s Church to feel so affronted by the presence of the mosque that they would cease attending the church and that, as a consequence, St Mary’s Church may close.32 While VCAT found it difficult to assess how many regular attendees of St Mary’s Church would cease attending the Church if the mosque was developed as proposed, the Applicants adduced evidence in the form of survey results taken at the church during a Sunday service. The results indicated that 91 percent of respondents would leave St Mary’s Church if a mosque was constructed next door and that 86 percent of respondents would not thereafter attend any church.33 However, VCAT questioned the reliability of this survey evidence and therefore attached limited weight to it, noting that it was poorly drafted and was not prepared or administered by parties impartial to the dispute.34 Rather, it held that “given what we are told about the importance of their church and faith, it is not a rational or likely outcome that church members would simply disperse if the mosque is built and not even seek . . . to maintain or re-establish their faith community”.35

Enabling both faiths to practise

While VCAT accepted the real potential that some within the congregation would no longer attend St Mary’s Church if the mosque was constructed next door, it also found that this social effect was entirely voluntary – while some members of St Mary’s Church would find attending the Church difficult or confronting, the presence of the mosque will not physically prevent members of St Mary’s Church from attending the Church or practising their faith.36 Conversely, VCAT explained that “[t]o refuse to allow the establishment of a Shi’ite mosque on this land could have as much of an adverse social effect on the Shia Muslim community (or more) than any adverse social effect on the St Mary’s Church congregation. That effect would not be voluntary”.37 It is for this reason that VCAT held that granting a planning permit for the proposed mosque was the only decision that would allow the potential for both faiths to practise their religion.38 VCAT was not satisfied that the proposed development would have a significant adverse social effect that warranted refusal of a planning permit.

Conclusion

This case presented a challenging and sensitive set of circumstances where the decision of VCAT had the potential to affect the ability of two religious groups to practise their respective faiths. In a decision determined in accordance with the Act and having regard to significant policy considerations, VCAT was able to uphold fundamental notions of religious freedom and equality and prevent further divisions within the community. As the first decision to consider “significant social and economic effects” of a proposed development since this became a mandatory consideration in planning applications, Rutherford provides a useful illustration of what may, or may not, constitute a significant social effect for planning purposes and serves as a reminder of the way in which decision makers may deal with this consideration in planning disputes.


CHARLES NOONAN is a judge’s associate at the Federal Court of Australia.

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  1. Rutherford & Ors v Hume CC (Red Dot)[2014] VCAT 786
  2. Note 1 above,at [2].
  3. Note 1 above,at [110]. While not requiring formal determination, VCAT nevertheless examined these matters at [110]-[118].
  4. Note 1 above,at [105]; Zerbe v City of Doncaster and Templestowe (1984) 12 APA 201, 214.
  5. Note 1 above,at [106].
  6. [2003] NSWLEC 154.
  7. Note 6 above,at [30]-[37].
  8. Note 6 above,at [71].
  9. Note 6 above,at [61]-[62]; Dixon & Anor v Burwood Council [2002] NSWLEC 190 at [53].
  10. (2000) 48 NSWLR 498, 504.
  11. Note 6 above,at [68]-[69].
  12. Note 1 above, at [13] and [131].
  13. Note 1 above,at [14].
  14. Sections 14 and 19.
  15. (1985) 1 NSWLR 525, 543.
  16. Note 1 above,at [89]-[90].
  17. Note 1 above,at [44]-[45]; Applicant’s written submissions at [6.1].
  18. Note 1 above,at [48].
  19. Section 76(2).
  20. Note 1 above,at [50].
  21. Note 1 above,at [51]; Minawood Pty Ltd v Bayside CC (Red Dot)[2009] VCAT 440(Minawood) at [37].
  22. Note 1 above,at [52]; Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505 (Stonnington) at [31]; Minawood at [36].
  23. Rutherford at [53]; Minawood at [38]; Johnson v Greater Shepparton CC (Red Dot)[2005] VCAT 1432(Johnson) at [10]; Tabcorp Holdings Limited v Moreland CC [2004] VCAT 693 at [13].
  24. Note 1 above,at [53]; Stonnington at [45].
  25. Note 1 above,at [54]; Johnson at [9]; Australian Conservation Foundation v Minister for Planning [2004] VCAT 2029 at [41].
  26. Note 1 above,at [55].
  27. Note 1 above,at [57].
  28. Note 1 above,at [58].
  29. Note 1 above.
  30. Note 1 above,at [60].
  31. Note 1 above,at [61].
  32. Note 1 above,at [70].
  33. Note 1 above,at [76].
  34. Note 1 above,at [77].
  35. Note 1 above,at [79].
  36. Note 1 above,at [82].
  37. Note 1 above,at [83].
  38. Note 1 above,at [90].

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