Applicant v First Respondent

1 The applicant is beneficially owned by and acts as corporate trustee for Radha Soami Satsang Beas Australia ('RSSB'). RSSB is affiliated with the global organisation, Radha Soami Satsang Beas, which is headquartered in India and promotes the worship of God through spiritual practices.

2 The applicant is the registered proprietor of land at 2 Boundary Road, Carrum Downs and an adjacent block at 724 Frankston-Dandenong Road, Carrum Downs, on which it proposes to build what it contends is a place of worship, along with a caretaker's dwelling and a guest dwelling. The land is situated in the Green Wedge Zone pursuant to the Frankston Planning Scheme.

3 On 18 July 2016, Frankston City Council issued a Notice of Decision to grant a permit to construct a place of worship on the land. However, on 23 February 2017, on the application of the first respondent, the Victorian Civil and Administrative Tribunal set aside the Council's decision to grant a permit and ordered that no permit be granted.

4 The basis for the Tribunal's decision was that RSSB is not a religion and, therefore, its proposed use of the land was for a 'place of assembly' and not a 'place of worship'.[1] As the proposed use was for multiple meetings per week, the Tribunal held that it could not grant a permit for the proposed use.

5 Under the Frankston Planning Scheme, a 'place of worship' is defined to mean 'land used for religious activities, such as a church, chapel, mosque, synagogue, and temple'. A 'place of assembly' is defined to mean 'land where people congregate for religious or cultural activities, entertainment or meetings'. The Planning Scheme prohibits the use of a place of assembly for more than ten days per calendar year in the Green Wedge Zone.

6 The Tribunal otherwise found that the proposed development and use was consistent with the objectives for land within the Green Wedge Zone,[2] involved appropriate land use within Schedule 2 of the Environment Significance Overlay,[3] did not result in any unreasonable offsite amenity impacts,[4] and adequately provided for car parking and traffic movements.[5]

7 The Tribunal identified the key question in the application for review to be whether the site was proposed to be primarily used for religious activities. It observed that the term 'religious activities' was not defined in the Planning Scheme or in the Planning and Environment Act 1987, but that the applicant's written submissions sought to address the question of whether the proposed use was as a place of worship by demonstrating that the RSSB was a religion. The Council had also stated that it was satisfied that the proposal was for a place of worship on the basis that RSSB was a religion. As a consequence, the Tribunal said:[6]

I agree with [RSSB] and Council that the question of whether the proposed land use is a Place of worship can be determined on the question of whether [RSSB] is a religion or practices a (meaning, one) religion.

Having regard to various materials, I have come to the conclusion that [RSSB] is not a religion, nor is it aligned with one particular religion.

8 The Tribunal referred to a number of representations on the applicant's website, which it said identified the applicant as 'a philosophical organisation' where attendees practiced 'spirituality and meditation in addition to their religious backgrounds and beliefs, which could be varied'.[7]

9 The Tribunal considered to be 'relevant' that RSSB had been accepted as a non-profit religious institution by the Australian Tax Office and had been exempted from paying stamp duty and land tax in both New South Wales and Victoria. However, it observed that the classification by the Australian Tax Office of religious institutions included uses falling outside the definition of a 'place of worship' under the Victorian Planning Provisions.[8]

10 On the question of what constitutes a religion, the Tribunal referred to the decision of the Full Court of the Supreme Court of Victoria in Church of the New Faith v Commissioner for Payroll Tax[9] as a consequence of which the Tribunal identified the following indicia to be relevant to determining whether RSSB was religion:[10]

● The nature of the ideas fundamental to the concept of a religion

● Whether the beliefs provide answers to ultimate questions

● Whether the set of ideas involved adherence to formal ceremonies and services

● Public acceptance

● Whether the applicant seeks to persuade members and potential members that the set of ideas represents the true faith or true answers to questions of ultimate concern

● Commercialisation whereby seeking to exploit for commercial advantage was a criterion against activities being of a religious character

11 The Tribunal went on to consider the evidence given by the manager of RSSB, Mr Pradeep Raniga, and, applying the indicia identified by the Full Court, made the following findings:[11]

(a) RSSB have ideas about finding and connecting with God which is fundamental to the concept of a religion.

(b) There does not appear to be a set of beliefs providing answers to ultimate questions, rather people are left to form their own beliefs relying on their times of meditations, their religious background, and the sacred texts of various religions. The use and reliance of the sacred texts of multiple mainstream religions was identified by Mr Raniga in his oral evidence.

(c) RSSB has an element of formal services, meeting at specified times each week. Aside from the importance of meditation, specific ceremonies appear to be limited, and [RSSB] does not appear to have specific ceremonies centred around wedding and funerals. Further, the material quoted earlier in these reasons from [RSSB's] website clearly states that there are no rituals or ceremonies.

(d) There appears to be some public acceptance of the organisation in Australia, and a stronger acceptance in some foreign countries. I am unaware of whether the public acceptance within Australia is that of a religion.

(e) It appears that RSSB does not offer a set of ideas that represent the true faith or true answers to questions of ultimate concern but rather seeks to draw these from various mainstream religions and their sacred texts.

(f) I have no evidence of commercialisation being a component of RSSB Australia. The application before me includes an olive grove and vegetable garden, totalling over seven hectares in size, which is to be tended by volunteer labour drawing on attendees to the site, the produce from which is proposed to be used by the respondent and donated to charities.

12 The Tribunal expressed reservations about the ability of RSSB to meet three of the criteria identified by the Full Court, namely: having beliefs providing answers to ultimate questions; having a set of ideas enfolding adherence to formal ceremonies and services; and seeking to persuade members that the set of ideas represents the true faith or true answers to questions of ultimate concern.[12]

13 The Tribunal observed that RSSB does not have its own series of beliefs and answers to ultimate questions, 'other than those answers which are borrowed from mainstream religions, as they are applied by individual members of [RSSB] which have faith in different religions'.[13] It considered the weekly Sunday service in the context of the need for ritual and concluded that the existence and reliance on a weekly service as evidence of formal ceremonies and services lacked the depth required to satisfy the relevant criteria.[14]

The key matter in my assessment is my understanding that RSSB is not a religion per se. It appears to be a series of activities and character expectations, including meditation, vegetarianism and personal qualities that seek to better connect adherence to their existing faith system and the 'one true God'. A clear indication in my view that RSSB is not a religion, is the absence of any unique sacred texts or set of values and belief systems regarding the person and divinity of God, and man's relationship to God. Rather the services appear to draw on the sacred texts of various religions for instruction, as I was informed through the oral evidence of Mr Raniga. The absence of any unique sacred texts, relates to the second and fifth indicia established in the decision of Church of the New Faith v Commissioner for Payroll Tax.

For these reasons I find that RSSB Australia is not a religion, and therefore does not conduct religious activities. As such it cannot be regarded as proposing a Place of worship for the review site.

16 The Tribunal found that RSSB was a philosophical organisation and that, based on this finding, the proposal was for a place of assembly, more particularly, a place where philosophical or spiritual meetings and instruction could take place.[17]

17 While the Tribunal accepted that 'at the heart of the activities that were to take place on the review site was an intention to assist people to worship their God' and that there was therefore a 'natural connection between those activities and the phrase a "Place of worship"', it held that a 'Place of worship refers specifically to religious activities', which the Tribunal took to mean those activities being undertaken as part of a religion.[18]

18 The applicant has raised two grounds of appeal, the second as an alternative to the first. The proposed grounds of appeal are:

(1) The Tribunal erred in law in holding that the applicant's proposed use does not meet the land use term of a 'place of worship' because RSSB is not a religion.

(2) Alternatively to ground 1, if the Tribunal did not err in holding that the proposed use did not constitute a 'place of worship' because RSSB is not a religion, the Tribunal erred in law in finding that RSSB is not a religion.

19 The applicant contends that in holding that the proposed use does not meet the land use term of a 'place of worship' because RSSB is not a religion, the Tribunal asked itself the wrong question and failed to take into account a relevant consideration, namely, the nature and character of the proposed use of the land. It contends that the Tribunal should have held that the proposed use is a place of worship because of the nature of the intended use and the activities which were to be undertaken, meant that the land was to be used for religious activities.

20 As to ground 2, the applicant submits that having regard to the legal meaning of the word 'religion', the Tribunal was bound to find that RSSB is a religion.

21 The applicant's principal complaint is that rather than asking the correct land use question in relation to whether the development is a 'place of worship', namely, whether the land is proposed to be used for religious activities, the Tribunal limited itself to asking whether the RSSB is a religion.

22 The applicant contends, in the alternative, that even if this was a legitimate way to proceed, the Tribunal applied the wrong indicia. In Church of the New Faith v Commissioner of Pay-Roll Tax (Vic),[19] the High Court articulated broader indicia of a religion than the Full Court of Victoria and was critical of the narrowness of the Full Court's indicia.

23 The Tribunal's application of the indicia of a religion identified in Scientology Full Court[20] clearly involved legal error. The decision of the Full Court was overturned by the High Court of Australia and was the subject of trenchant criticism in the High Court, with one member describing the indicia identified by the Full Court as 'unacceptable' and the decision as involving 'intolerable religious discrimination'.[21]

24 In Scientology High Court, the High Court delivered three judgments, each overruling the decision of the Full Court of Victoria, and each identifying slightly different indicia of a religion. Mason ACJ and Brennan J held that the indicia of a religion are twofold:[22]

First, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.

25 Their Honours also eschewed any attempt to restrict the definition to 'theistic religions', which was 'too narrow a test', the relevant criteria being satisfied by 'belief in supernatural Things or Principles and not to be limited to belief in God or in a supernatural Being otherwise described'.[23]

26 Justice Murphy identified indicia in the broadest terms, while Wilson and Deane JJ took the middle ground, identifying the following indicia of a religion:[24]

(a) the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses;

(b) the ideas relate to man's nature and place in the universe and his relation to things supernatural;

(c) the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance;

(d) however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups; and

(e) the adherents themselves see the collection of ideas and/or practices as constituting a religion.

27 Their Honours cautioned that no single one of the indicia is necessarily determinative of whether a particular collection of ideas and/or practices should be objectively characterised as 'a religion'. They are aids in determining that question and the assistance to be derived from them will vary according to the context in which the question arises.[25]

28 None of the indicia identified by the High Court would require RSSB to have 'unique sacred texts or set of values and belief systems regarding the person and divinity of God, and man's relationship to God' and/or engage in the persuasion of members and potential members that its set of ideas represents 'the true faith' or true answers to questions of ultimate concern.

29 If the indicia described by Mason ACJ and Brennan J are used, namely, a belief in a supernatural Being, Thing or Principle and the acceptance of canons of conduct to give effect to that belief, RSSB would qualify as a religion. It would also satisfy the indicia of Deane and Wilson JJ in subparagraphs (a) to (d) in paragraph 26 above.

30 However, the point at which the Tribunal first fell into error was anterior to its consideration of whether RSSB was a religion. It occurred when the Tribunal was deflected from asking and answering the land use question necessary for the determination of whether the development was a 'place of worship' in the Planning Scheme: what was the purpose of the proposed use of the site? The Tribunal was required to consider how the land was to be used rather than to focus on the character of the applicant for the permit.

31 Whether RSSB is a religion is not determinative of whether the proposed use of the land meets the land use term of a 'place of worship'. It is a factor that may be relevant in the broader analysis, but it is not, alone, determinative. Consideration of that question did not exhaust the exercise to be undertaken in determining whether the land was to be used for religious activities.

32 In characterising the proposed use of land, it is necessary to ascertain the purpose of the proposed use.[26] The task must be undertaken in a common sense and practical way.[27] The Tribunal was called upon to consider what activities were to be undertaken on the land and the purpose of that intended use - to what end the activities were to be undertaken - to determine whether the proposed development satisfied the definition of a 'place of worship' in the Planning Scheme. By focussing on whether RSSB was a religion, the Tribunal did not carry out this task.

33 It is noted that the Tribunal's application of the indicia in Scientology Full Court was the result of submissions made by the applicant to the Tribunal. More generally, the fact that the Tribunal went down the path of asking itself whether RSSB was a religion in lieu of considering what were the activities to be undertaken on the land and what was their purpose, reflected the way in which the matter was argued in the Tribunal.[28] However, whatever it was that led the Tribunal to approach the land use question as it did, it erred in law. It is the role of the Court to remedy such error on appeal.[29]

34 The sole basis for the Tribunal's order that no permit be granted was its holding that the proposed development and use was not a 'place of worship' because RSSB was not a religion. This constituted a vitiating error, in that the proceeding might have been decided differently had the correct task been undertaken.[30]

35 The question then arises as to the disposition of the appeal.

36 The applicant asks the Court to set aside the Order of the Tribunal and to order in its place that the application of the first respondent made on 8 August 2016 be dismissed. This would mean that the decision of the Council to grant a permit for the development would stand.

37 Under the Victorian Civil and Administrative Tribunal Act ('VCAT Act'), the Court can remit the proceeding to the Tribunal to be determined according to law[31] or can itself make the order that the Tribunal could have made in the proceeding.[32] However, as the High Court said in Osland v Secretary, Department of Justice (No 2),[33] in the exercise of its jurisdiction under s 148(7) of the VCAT Act, the Court should not usurp the fact-finding function of the Tribunal and it may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises where no other conclusion could reasonably be entertained.

38 In my view, the present circumstances fall within those described by the High Court in Osland and it is open to and appropriate for the Court to determine whether the proposed development is for a place of worship and thereby to decide the application for review. There is only one issue and its determination involves the correct application of the law to the unchallenged evidence in the Tribunal about the proposed activities on the land. The Tribunal rejected the other bases of objections to the proposed development and there has been no attempt to re-agitate those objections or to contend that the Tribunal was wrong in its conclusions in relation to those issues. The only issue is whether the development and use for is for a place of worship. The Court has before it all unchallenged evidence that was before the Tribunal and is as well placed as the Tribunal to decide this question.

39 In this regard, I have considered the evidence of Mr Raniga in his statement and given orally in the Tribunal. Mr Raniga's evidence was relevantly as follows:[34]

At the core of the RSSB philosophy is a belief that there is a spiritual purpose to human life - to experience the divinity of God who resides in all of us.

...

RSSB has spiritual centres established all around the world in large cities and regional small townships. The role of the centres is very important to our followers as it provides a place where meetings are held for them to listen to spiritual discourses.

...

The role of the property centres in each community is very important to followers. The centre becomes a place of worship where followers gather weekly and focus on their spiritual path. This takes the form of singing hymns of praise and devotion (no musical instruments); listening to discourses on the teaching of past saints; holding classes on morally related issues for young people; initiating new followers into the meditation practice and voluntary service (seva).

...

Having a purpose designed property provides the opportunity for the practical application of the spiritual philosophy. It provides the facilities for followers to focus themselves on activities that focus the mind to support the daily practice of meditation. Primarily these are attending weekly discourses and engaging in voluntary service.

...

The activities proposed for this site include weekly meetings (600 adults on Sunday mornings and 200 adults on Wednesday evenings) and approximately 3500 adults for two large bi-annual meetings. Approximately 200 volunteers will be attending on Saturday mornings to carry out volunteer work...

The site fulfils our requirements and provides us with the following:

• land to the east for farming
• land in the centre for separate buildings to enable worship activities for adults, children and youth, communal kitchen and also land for vegetable farming
• land to the north and south for family enjoyment
• [residence]
• [caretaker residence].

40 The agricultural activities proposed form part of the community service to be performed by followers as part of the development of an ethos of giving for the benefit of others.

41 In his oral evidence, Mr Raniga explained that 'Radha Soami' means 'Lord of the Soul' and that in meditating, followers are trying to connect to the soul of the Lord.

42 Hence, as to 'use' of the development, the evidence before the Tribunal disclosed that the property centres established by RSSB in each community become a 'place of worship where followers gather weekly and focus on their spiritual path'.[35] The activities generally undertaken are religious in flavour and include 'singing hymns of praise and devotion (no music instruments); listening to discourses on the teachings of past Saints; holding classes on morality related issues for young people; initiating new followers into the meditation practice and voluntary service'.[36]

43 As to 'purpose', the evidence before the Tribunal was that the purpose of the intended use was for the 'practical application of RSSB's spiritual philosophy', which includes:

(a) the promotion of the worship of God through the teachings of the Saints and founders of religions throughout history;

(b) a belief that there is a spiritual purpose to human life - to experience the divinity of God who resides in all of us;

(c) a commitment to a way of life that supports spiritual growth while carrying out their responsibilities to family, friends and society; and

(d) members being vegetarian, abstaining from alcohol and recreational drugs, leading a life of high moral values and undertaking the practice of meditation.

44 The evidence before the Tribunal also established that the proposed development is intended to be used for bi-weekly services, for a bi-annual 'national discourse' services and for volunteer and agricultural work.

45 It is significant that the Tribunal itself found that 'at the heart' of the activities which were to be undertaken at the site was an 'intent to assist people to worship their God'.[37] The Tribunal observed that if the definition of 'place of worship' relied on an element of worship taking place (which it did), that element would include the proposed activities on the review site.[38]

46 The applicant submitted that in determining whether the development is to be used as a 'place of worship', a liberal approach to interpretation must be favoured over a narrow one, so as to respect accepted standards of religious equality and tolerance in Australia.[39] The Court should prefer a construction that permits persons to exercise their religion at the place where they wish, over an interpretation or construction which prevents them from doing so.[40] The common law supports the application of this interpretive approach to planning legislation.[41]

48 Historically, a liberal approach has been taken to construing terms describing places of worship in planning legislation, that approach having resulted in the interpretation of the phrase 'place of public worship' to include closed worship[42] and the word 'church' as including 'mosque', notwithstanding that the prospect of worship by Muslims in a church would have been unthinkable at the time the relevant provision was drafted.[43]

49 In this case, the principal activities proposed for the development involve meditation to enhance the follower's connection with his or her God and practices aimed at developing and enhancing that connection. These are religious activities.

50 I am therefore satisfied that the proposed development and use satisfies the definition of 'place of worship' in the Planning Scheme.

51 Leave to appeal is granted, and the appeal is deemed to have been instituted and heard.

53 The order of the Tribunal made on 23 February 2017 is set aside and in lieu thereof it is ordered that the application for review is dismissed.

54 The applicant does not seek its costs, and there is therefore no order as to costs.

[1] Ross v Frankston CC [2017] VCAT 274, [30] ('Tribunal's Reasons').

[9] [1983] VicRp 10; [1983] 1 VR 97 ('Scientology Full Court').

[19] [1983] HCA 40; (1983) 154 CLR 120 ('Scientology High Court').

[20] [1983] VicRp 10; [1983] 1 VR 97.

[21] Scientology High Court [1983] HCA 40; (1983) 154 CLR 120, 154, 161 (Murphy J).

[26] McKinnon Hotels Pty Ltd v Glen Eira City Council [2011] VSC 627, [16].

[27] Dooralong Residents Action Group Pty Ltd v Wyong Shire Council (2011) NSWLEC 251, [99]; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, [45].

[28] The Council, when asked by the Tribunal whether it had a view as to whether, for there to be religious activities, there needed to be a religion that was being observed or practised, told the Tribunal that its understanding was that RSSB was a religious group. Senior Counsel for the applicant told the Tribunal that he would call some evidence to give a better and fuller understanding of what were the activities and purpose of the activities constituting the place of worship, and would, in due course, take the Tribunal to the tests of religion. Nonetheless, Senior Counsel for the applicant drew a distinction between the practice of religion and the undertaking of religious activities in the definition of 'place of worship'.

[29] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (No 2) [2008] VSCA 58.

[30] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 384 (Toohey and Gaudron JJ).

[31] Victorian Civil and Administrative Tribunal Act s 148(7)(c).

[32] Ibid s 148(7)(b).

[33] [2010] HCA 24; (2010) 241 CLR 320, 332 (French CJ, Gummow and Bell JJ) ('Osland').

[34] Statement of Pradeep Raniga, exhibit GC-2 to the affidavit of Gordon Cooper affirmed on 29 March 2017, 1-3.

[39] Canterbury Municipal Council v Moslem Alawy Society Ltd [1987] HCA 8; (1987) 162 CLR 145, 149.

[40] Hoskin v Greater Bendigo City Council (2015) 48 VR 715, 723-724.

[42] Canterbury Municipal Council v Moslem Alawy Society Ltd [1987] HCA 8; (1987) 162 CLR 145.

[43] House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; [2000] 48 NSWLR 498, 509 [46].