Alphonso v Casey CC

[4]

1 This case concerns certain religious activities carried on by the applicants (Reginald Alphonso and Pyrenne Alphonso) in relation to their home at 88 Toirram Crescent, Cranbourne. They have apparently resided there since before January 1992. In that year an aunt of Mrs. Alphonso visited the family. Prior to that visit, I am informed, the aunt attended a novena to the Infant Jesus of Prague at the Holy Rosary Church, Slave Island, Colombo in Sri Lanka. A novena is a Roman Catholic service of prayer, commonly conducted on nine consecutive days.

2 The Infant Jesus of Prague is a small statue, apparently made of wax and richly dressed which represents Jesus as a child. The figure, as represented to me, is dressed in a rich crimson cloak or robe richly embroided with gold coloured thread and with a lace collar and lace cuffs. The figure has golden hair and holds a golden coloured orb in the left hand. An overly large eastern style golden coloured crown decorated with coloured stones sits high on the head. The crown is not worn down on the brow of the head. Its circumference is too large for the head of the statue.

3 The aunt brought a replica of the statue to Australia and gave it as a gift to Mrs. Alphonso. Mrs. Alphonso has a shrine in a corner of the living room of her house. Several items of religious statuary stand on parts of the shrine, including the replica of the Prague statue.

4 Mrs. Alphonso is a practising Roman Catholic. After receiving the gift she and others took to conducting religious prayer services before the shrine and thus before the statue of the infant Jesus. She believes that such services conducted in relation to the original Infant Jesus of Prague occasion favourable miracles, and that similar prayer services in relation to her replica also occasion miracles.

5 These services became a regular event on Friday evenings from 8 pm to 9.15 pm. Numbers attending the services increased over time until as many as 60 people were in attendance. These people were, in the main, friends and acquaintances of Mrs. Alphonso, or perhaps members of the congregation with a church she attends. The continuing conduct of the services became known, apparently particularly to people of the Roman Catholic denomination of a Sri Lankan background. They became informed by word of mouth. Sometimes a friend known to Mrs. Alphonso would bring a friend, not necessarily known to Mrs. Alphonso, along to a service.

6 I have been given a copy of a publication referred to as the "novena" used at the services. It is an order of service containing various prayers, responses, hymns and litany. It makes provision for participation by a priest. I did not realise, until perusing the document after the hearing, that a priest might be involved. No reference was made in the course of the hearing, or in the other materials tendered, to the participation of a priest or as to the attitude of any priest to the religious practices being carried out at the Alphonso home. I do not know whether a priest usually, or ever, participated.

7 The conduct of these services went on for approximately 12 years until complaints were made to the responsible authority. Some people walked to the services, including a next door neighbour of Mrs. Alphonso, but others came from further a field, either by public transport or by motor car. One participant was said to live in St. Albans.

[23]

17 It is quite clear that such ancillary activities are correctly regarded as part of the use of the land. For example, in relation to the residential use of a dwelling the people living there might indulge in a variety of hobbies, interests or past-times as part of their living in the house. Such activities may, or may not be essential to the use of the place as a dwelling. Cooking, eating, washing and sleeping would normally be regarded as essential elements. On the other hand, the keeping of a few pet rabbits, the playing of social tennis on a domestic tennis court, or swimming in a domestic swimming pool, or cultivating a vegetable garden or a flower garden or entertaining friends for afternoon tea (regularly or irregularly) or holding a party (regularly or irregularly) or having a book club discussion (regularly or irregularly) or, for that matter, a Bible study or prayer meeting are all activities that would quite commonly and quite properly be regarded as ancillary to and thus part of the domestic use of a house as a dwelling.

18 Of course, it is possible for something to start out as a hobby or past-time that is ancillary to the use of the place as a dwelling and for it to subsequently grow in various ways so as to evolve into something that exceeds the concept of an ancillary activity so as to become a separate use of the land for which planning permission may, if the planning scheme says so, require a permit. If the social playing of tennis on a domestic tennis court evolved to become commercial tennis coaching, a point might be reached where it had changed to a second and separate use. If the vegetable garden became a commercial market garden, or the hobby of restoring of vintage cars became a panel beating business, or the keeping of a few chooks grew into a commercial poultry farm, then a second and separate use would have evolved.

19 An illustration of this sort of evolution was discussed in the course of the hearing. In years gone by the main and almost exclusive use of petrol stations was to sell petrol and oil to motorists. Such a use would clearly be a petrol station however, a little bit of ancillary retailing, particularly if associated with motoring, might properly be regarded as part of the petrol station. Thus the sale of road maps, sunglasses, barley sugar to ward off travel sickness or boredom in juvenile passengers, spare fan belts and the like might be ancillary. However, if this retailing grew into a full scale convenience shop selling multiple lines in groceries, magazines, hardware and other forms of merchandise a situation can arise where there are two uses namely petrol station and convenience shop. There can be two uses on the one premises. It is common now for a new business to be set up that contains a petrol station and a convenience shop where both uses must comply with the planning scheme. It does not matter whether they were set up together when a green field site was developed, or whether one started 50 years ago and the other evolved over time, where there are two uses they must both comply with the planning scheme.

20 There can be a situation where there is clearly one use or the other, but there can also be situations where there are clearly the two uses. There can also be difficult questions of fact and degree in discerning when there has come to be such an amount and style of retailing as to become a shop as well as a petrol station. In the hazey area near the line honest opinions might vary as to how a particular example should be categorised. Nevertheless, a situation sometimes arises where such a categorisation has to be determined upon. In such a case there may be a variety of considerations brought into account and attributed varying degrees of weight according to circumstances. It is, of course, more practical to do this in relation to a concrete example. It can be quite difficult, if not impossible, to do it in relation to a hypothetical theoretical possibility.

[32]

26 In the presentation of his submissions on behalf of the responsible authority Mr. Walker referred to a number of other matters which, so far as I can see, are not to the point. It may be that the thinking in the camp of the responsible authority has been coloured by the exercise that arose in considering whether a permit should be granted for a place of assembly or a place of worship. It must be remembered that there was no review brought to this Tribunal against the decision of the responsible authority to refuse to grant such a permit. If such a review had been applied for, it would be relevant in that proceeding to consider the planning merits of the proposal and to do so, for example, in the light of relevant policies and in relation to potential affects on the amenity of the locality and neighbouring properties.

27 However, the exercise in this case is directed towards working out whether the particular activities of conducting prayer meetings are to be regarded as an ancillary part of the use of the house as a dwelling. Considerations of policy and amenity, which certainly would be relevant to a permit application, are beside the point in the present case. There are questions of fact, perhaps including questions of fact and degree, and there is the application of the law, but there is not a discretion as to planning merits based on policy or amenity. If the proposed prayer meeting activity is an ancillary part of the use of the house as a dwelling, that is determined on a correct analysis of the facts and law involved, and does not turn on questions of policy or the purposes of a Residential 1 zone or potential amenity affects such as noise, parking and traffic.

28 There can well be aspects of the use of land as a dwelling which have adverse amenity affects or which are contrary to planning policy. The limitations that apply to a proposal for two dwellings on a piece of land do not apply to a detached house. A detached house might be large and bulky and out of character with the neighbourhood, it might overlook and overshadow and be detrimental to neighbouring properties and the immediate area in various ways, but there is no planning control and no need for a permit to erect such a structure or to use it as a dwelling.

29 Of course, particular householders or their families might use their land in a way that constitutes a nuisance because of the omission of noise, the smells or the appearance of the property or in other ways. However, the law of nuisance, whether private nuisance or public nuisance, and whether common law or statutory, is something apart from the planning laws and has to be pursued in court, and not by means of permits or proceedings at this Tribunal.

30 When the responsible authority was considering an application for a permit for a place of assembly it apparently considered such things as the parking of cars on the front lawn, the parking of up to 8 cars on the land, whether, with that number of cars, cars could be turned around to drive out in a forward direction off the property and whether there would be parking in nearby streets. Those considerations were, no doubt, to the point in assessing the permit application. They are beside the point in relation to an as of right use of the land as a dwelling. That is so whether or not that as of right use happens to include prayer meetings or other ancillary activities. It might be ugly or unfortunate if people park on their front lawns or park on the curtilage of their houses, but there is nothing to prevent, unless it be the law of nuisance. Furthermore, there is nothing untoward about visitors to a property parking in the street, whether they are there for a party or a games night or a book club meeting or a prayer meeting.

[41]

42 That said, I have had of another sort of reservation about this application. If the past activity was continuing in its original form, or in some modified form, and the responsible authority commenced enforcement proceedings on the basis that a permit for a place of worship was required, I would be dealing with a concrete fact situation. No doubt the defence would be that the activities complained of are ancillary to the use of the place as a dwelling. A fall back defence position might be that, if they are not within that concept, then they might be reduced to come within it. At any event, there would be a real fact situation to be assessed and it would be necessary to determine whether a contravention has been committed. That would, no doubt, have called for an assessment of the question of fact and degree that might be within the hazey area of uncertainty. It would nevertheless be my task to determine the question.

43 However, the matter has not arisen in that way, it has arisen as a somewhat more abstract and hypothetical proposition. The declaration is sought on the basis of three parameters, and on the basis that if these three parameters are satisfied then the proposition that no permit is required will be correct. These three parameters are that there would be up to 25 people per session and no more, perhaps including that they be invited persons; that there be up to two sessions per week with one on Friday evenings between 7 and 8:15 pm and that such sessions not exceed two hours duration.

44 In the course of the hearing some attention to what elements might be relevant to determining whether the prayer meeting activities should be assessed to be a place of worship rather than an ancillary of a dwelling. The list is not necessarily exhaustive, and the weight attributable to various considerations might vary one, and be contingent one upon another. Amongst the things discussed in this respect were numbers attending, a means by which people come to know of the meetings so as to wish to attend, the means of advertising or invitation (whether personal or general or something in between); the regularity, duration, intensity and consistency of meetings and whether any payment was involved. Mr. Walker also thought it relevant to consider whether the proportion of the land used including the driveway and parking and whether people come from close by or far a field. I have my doubts about the relevance of the latter two.

[42]

45 I have considered whether I can or should attempt to make the declaration in these circumstances. A declaration is an authoritative legal judgement stating the law in relation to the rights of a person or persons. The courts, and the Tribunal, are cautious or reluctant to make declarations of a theoretical or hypothetical, abstract, contingent or future nature. This present case might be thought to have some degree of the hypothetical or theoretical about the fact situation. The specification of the parameters has been adopted in an attempt to reduce the fact situation under consideration to one of sufficient certainty that a declaration can be made. I have come to the conclusion that I can make a declaration in this case in similar, but not identical, terms to the declaration sought. In doing so, I have added a parameter in relation to the advertising of prayer meetings and, in deference to the possibility of the existence of unconsidered contingencies, I have not expressed the declaration in absolute terms. Nevertheless, I think the declaration I propose to make should be of practical use to the parties and provide them with the guidance that they seek. The only caveat that I have reserved is in relation to the expression "not otherwise exceed the concept of ancillary activity". However, the conclusion that a permit is not required is on the basis of the facts advanced at the hearing, the submissions made and the limitations written into the terms of the declaration itself. The reservation can only arise from facts, circumstances or aspects not so far considered.

46 I should also say that the declaration is to the effect that the prayer meeting activity within certain limitations is ancillary and does not need a permit. It does not follow that some variation on the restrictions written into the declaration will necessarily mean that the activity ceases to be ancillary. For example, it could be very difficult to draw an absolute line as to the number of participants or the frequency or duration of meetings whereby the activity would cease to be ancillary and become a second and separate use. It is possible that such a line may have to be drawn more clearly at some future time, for example if the responsible authority considers that the activity has become a separate use and has sought an enforcement order. In the meantime, I am saying that prayer meetings within the limitations specified are within the limits of what is ancillary, without attempting to specify those limits and without saying that some exceeding of what is specified would necessarily be beyond those limits.

47 I therefore make a declaration in the following terms:

Alphonso v Casey CC - [2006] VCAT 595 - VCAT 2006 case summary — Zoe

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Judgment (44 paragraphs)

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Cases Cited (1)

Alphonso v Casey CC (Red Dot) [2006] VCAT 595 (6 April 2006)