Australian Muslim Welfare Centre Inc v Campbelltown City Council

Land and Environment Court (NSW)|2024-10-03

COMMISSIONER:

This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order 1262/2023/N-EPA issued by the respondent under s 9.34 and Part 1 of Schedule 5 of the EPA Act to the applicant on 27 July 2023 (and modified on 21 August 2023), requiring the applicant to stop use of land identified as Lot 7 in Deposited Plan 39165, known as 13-17 Eagleview Road, Minto (Premises), as a place of public worship.
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Issues

Based on the way the case was pleaded by the parties at hearing, the issues that require determination in this case are: 1. What is the use of the Premises? 2. If the use of the Premises is mixed, are the uses independent of each other or is one use ancillary or subservient to the other? 3. If the use of the Premises is for a place of public worship, is it appropriate to modify the Order to extend the timeframe for compliance to allow the applicant a reasonable opportunity to pursue its Planning Proposal?
For the reasons that follow, I consider it appropriate to dismiss the appeal and uphold the terms of the Order.

The role of the Court on appeal

In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the LEC Act provides as follows: 39 Powers of Court on appeals … (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows: (4) On hearing an appeal, the Court may: (a) revoke the development control order; or (b) modify the development control order; or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.

Evidence

The applicant relies on the following evidence: 1. expert evidence of Mr Anton Reisch (traffic); 2. expert evidence of Ms Pip Hyde (town planning); 3. expert report of Dr Jan Ali (Senior Lecturer in Islam and Modernity at the Western Sydney University, Sociologist of Religion specialising in Islam, author), filed 6 September 2024 (Ex C); and 4. Affidavit of Dr Anisul Afsar (President of the Australian Muslim Welfare Centre Incorporated) filed 28 June 2024 (Ex D).
The respondent relies on the following evidence: 1. expert evidence of Mr Paul Corbett (traffic); 2. expert evidence of Mr Jeremy Swan (town planning); 3. Affidavit of Mr Sheldon Rodricks (former Team Leader Development and Environmental Compliance at Council) filed 28 June 2024 (Ex 5); 4. Affidavit of Mr Benjamin Satoru Kelso (paralegal employed by the solicitor on the record for the respondent), filed 28 June 2024 (Ex 6); 5. Affidavit of Mr Chris Clifford (Development Compliance Officer employed by the Council), filed 28 June 2024 (Ex 7); and 6. Affidavit of Mr Liam Saville (Coordinator City Standards and Health employed by the Council), filed 1 July 2024 (Ex 8) (with the exception of [22], [23] and [25] to [67] which I ruled irrelevant to the question of the use of the Premises as at the date the Order was issued, following objection by the applicant).
The following joint experts reports were filed and subsequently tendered at the hearing: 1. Joint Expert Report of the Traffic Experts prepared by Mr Reisch and Mr Corbett filed 2 October 2024 (Ex 3) (Joint Traffic Report); and 2. Joint Expert Report of the Town Planning Experts prepared by Ms Hyde and Mr Swan filed 20 September 2024 (Ex 4) (Joint Planning Report).

Legislative and planning framework

Section 9.34 of the EPA Act relevantly provides that development control orders may be given in accordance with the table in Pt 1 of Sch 5 of the EPA Act.
Relevant to this matter is item 1, extracted as follows: Column 1 Column 2 Column 3 To do what? When? To whom? Premises are being used - • for a prohibited purpose, or • for a purpose for which a planning approval is required but has not been obtained, or • in contravention of a planning approval. Stop Use Order Building is being used - 1 To stop using premises or a building • inconsistently with its classification under this Act or the Local Government Act 1993, and The owner of premises or building the person using the premises or building. Not to conduct or to stop conducting an activity on the premises • in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and • in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that - • constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and • is not regulated or controlled under any other Act by a public authority.

As set out at para [3], the Premises is zoned C4 Environmental Living under the CLEP. The objectives of the C4 zone, to which I have had regard, are extracted below:

To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
To ensure that residential development does not have an adverse effect on those values.
To conserve the rural and bushland character of land that forms the scenic eastern edge of Campbelltown's urban area.
To protect and enhance areas of scenic value and the visual amenity of prominent ridgelines.
To maintain significant stands of native vegetation and wildlife and riparian corridors.
To ensure the preservation and maintenance of environmentally significant and environmentally sensitive land.

Relevantly, "community facilities" are permitted in the C4 Environmental Living zone with consent.
"Community Facility" is defined in the dictionary to the CLEP as follows: community facility means a building or place - (a) owned or controlled by a public authority or non-profit community organisation, and (b) used for the physical, social, cultural or intellectual development or welfare of the community, but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.
The C4 Environmental Living zone prescribes that any development not specified as being permitted without consent or permitted with consent is prohibited in the zone. This means that a "place of public worship" is prohibited in the C4 zone, being a use that is not listed as being permitted with or without consent.
"Place of public worship" is defined in the dictionary to the CLEP as follows: place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

What is the use of the Subject Land?

Relevantly in this case, pursuant to column 2 of Item 1 in Pt 1 of Sch 5 of the EPA Act, in order for the Order to have been validly issued, the Premises must have been being used by the applicant for a "prohibited purpose". The respondent submits that the Premises was and is being used as a place of public worship, being a prohibited use, such that the Order was validly issued and the appeal should be dismissed.
The respondent relies on the consideration of the concept of a "place of public worship" from the caselaw to submit that: 1. the use of the Premises falls within the definition of "place of public worship", namely that the Premises is "a place of congregational, as distinct from private or domestic, worship" - Canterbury Municipal Council v Moslem Alawy Society Limited (1987) 162 CLR 145; [1987] HCA 8, and 2. the definition in the CLEP which states that a place of public worship will still be characterised as a place of public worship "whether or not the building is also used for counselling, social events, instruction or religious training", reflects the observations made in House of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44 that places of public worship have evolved to include "community functions" and the fact that the Premises includes other community functions does not save it from being characterised as a place of public worship.
Conversely, the applicant submits that the Premises was and is being used as a community facility, being a permissible use for which they have development consent. The applicant further submits that although prayer does occur at the Premises, this is incidental or ancillary to the primary community facility purpose due to the nature of the faith of the people attending the Premises. The applicant relies on the fact that airports and schools can have chapels and prayer services taking place on the premises and that this does not transform those establishments into places of public worship.
The applicant therefore argues that the Order should be revoked and the appeal upheld.
Both parties referred to the case of Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 (Pet Carriers) and in particular, the findings of Preston CJ at [27]: [27] The nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: Shire of Perth v O'Keefe at 534-535; at 150; Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301; (1978) 38 LGRA 306 at 308.
The applicant submits that (Applicant's Written Submissions (AWS) at [44]): In planning law, use must be for a purpose: Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [51]. The use of land is the "physical acts by which the land is made to serve some purpose": Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] ALR 277 at 508. The characterisation of the purpose of a use of land "is not carried out by reference to the detailed activities, transactions or processes" (Abret at [52]). Instead, the purpose is "identified as the end for which the premises were being used" (Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 311). So, in this case, the appropriate genus of the purpose of that of community facility because that is the end for which the premises is being used: Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 at [27].
It is therefore necessary to determine the purpose or end to which the Premises is being used and whether this purpose or end is for a community facility (a use permissible with consent) or place of public worship (a prohibited use).
The respondent relies on the affidavit evidence of Mr Benjamin Kelso and Mr Chris Clifford and the affidavit and oral evidence of Mr Sheldon Rodericks, to establish that the Premises is being used as a place of public worship, including: 1. Screenshots taken by Mr Kelso from the Australian Muslim Welfare Centre Inc Facebook page which appear to advertise events at the Premises, including "prayer" and "Islamic Program" and in particular announcements of "Jumma Prayer" on numerous Fridays between 15 October 2021 and 4 February 2022. 2. The evidence of Mr Rodericks of his inspections of the Premises and surrounds between the period of 2 September 2022 to 24 November 2023, including phone and body camera footage played in Court and photographs taken from some of those inspections depicting large numbers of people entering and departing the Premises (particularly at around lunch time on Fridays). For example, in his affidavit, Mr Rodericks estimated that there were "at least 300 people at the Property", "approximately 200-300 prayer mats in the breezeway" and "100 vehicles parked in the vicinity that were attending the Friday prayers" on his inspection of Friday, 28 April 2023. In oral evidence, Mr Rodericks stated that he inspected the Premises 26 times on a Friday generally between noon and 2.30pm, stating as follows (T 1 October 2024 p 25 line 1-10): "So, depending on the prayer times for the day, because we follow the app online and the Facebook page at the time, so it was anywhere between 12 and 1.15 were the prayer times advertised and me and my crew came to the vicinity and we parked and we waited. It was about a 15 minute turnaround for the centre to be full up with cars and then the overflow onto the roadways and side streets all the way from Plowman to Longhurst Road and then once the services were over around - depending on, if it was 12, it was 1.15. If it was 1.15, it was about 2.15. The prayer services got over, people got into their vehicles and made their way out really quickly. So all up, entry into the facility took about ten to 15 minutes, exit the same amount of time." 1. The affidavit evidence of Mr Clifford of his inspections of the Premises and surrounds between the period of 22 March 2023 to 28 April 2023, including photographs and phone camera footage played in Court. Mr Clifford attended the Premises on four Fridays, relevantly stating: 1. Friday 24 March 2023: "I stood in an adjacent driveway and observed the area for approximately 10 minutes with at least 100 people observed entering the facility during that time. I noticed that most of the vehicles waiting to enter the Property had about 3 or 4 occupants". 2. 31 March 2023: "Whilst outside the Property, I continued to observe the Property for approximately 10 minutes. During this time, I observed that the main carpark area of the Property was full, with a row of cars waiting to turn into the driveway… I observed approximately 200 cars within the Property… As I stood in the driveway of the adjacent property, I saw approximately 100 people entering the Property from adjacent side streets and from the number of vehicles that parked along the grass nature strip of Eagleview Road and the nearby Eagleview Road dog park… As we entered the rear grass area, I observed approximately 60-100 males gathered within the enclosed undercover area located at the rear of the main hall/room. I observed the males engaged in prayer and could hear what I understood at that time to be prayers over the public address system." 3. 21 April 2023: "I observed approximately 150 to 200 cars within the Property…. I continued to observe the Property from across the road. I observed approximately another 100 to 150 men, women and children enter the Property and head towards to the Centre…. I remained across the road near the Property for a short duration and counted approximately 200 to 300 people leave the property by foot and approximately 100 to 150 vehicles drive out." 4. 28 April 2023: "At the time of my inspection, I observed: 1. At least 300 people on site; and 2. Some people were washing their hands and feet." 1. The affidavit evidence of Mr Saville which details the complaints the respondent has received in relation to the Premises since 2010 and the inspections Mr Saville carried out of the Premises on 14 May 2021, 2, 3 5 and 8 April 2022 and 28 March 2023. For completeness, I have only considered the complaints detailed in Mr Saville's affidavit from 2023 onwards as being relevant to determining the use of the Premises as at the date of the Order. Mr Saville's inspections were carried out on different days of the week as follows: 1. 2 April 2022 (Saturday): "At 8.30pm on Saturday 2 April 2022, I inspected the Property and made the following observations: 1. When I arrived at the Property, I saw approximately 200 cars at the Property. The car parking area was completely full, and I saw that vehicles were parked on the grassed areas at the front and rear of the property. 2. I saw a large number of males in the main building on the Property, and saw approximately 100 men outside the main building on the Property and observed them to be I a position indicating that they were praying under the rear awning. 3. … 4. At approximately 9:30pm, I counted 74 cars leaving the Property and 24 people leaving the Property on foot. 5. … 6. …. 7. Between 10:30pm to 11:11pm, I counted 177 cars leaving the property and saw 20 people leave on foot. 8. I therefore estimated that 251 vehicles left the property and 44 people left the property on foot on 2 April 2022." 1. 3 April 2022 (Sunday): …"On that night, I counted 219 cars at the Property and 44 people leaving the Property on foot. My inspections on 2 and 3 April; 2022 took place during Ramadan." 2. 5 April 2022 (Tuesday): "Between 8:45pm and 10:10pm, I observed 139 vehicles and 9 people on foot leave the Property…" 3. 8 April 2022 (Friday): "Between 8:20pm and 10:00pm, I observed 166 cars and 16 people on foot leave the Property."
The respondent also relies on the expert evidence of Mr Swan who states in the Joint Town Planning Report (at p 8) "the carrying out of religious prayer as described above and in the affidavits, cannot in my view be described as incidental and therefore the primary purpose from a planning perspective being the community facility."
In response to my question of the meaning of the term "purpose of religious worship", Mr Swan stated (at T 2 October 2024 p 89 line 7-16): "My view would be that the purpose is, I think it is similar in the sense that it's - it's the principal purpose of whatever someone is going to the place for, and I guess all I would qualify it is that you can have multiple uses that - that - that become a mixed use and so if the principal purpose at a particular time, i.e. the Friday area, is for the purpose of religious worship by a congregation, then on a Friday at that time the use is being carried out as a place of public worship. And it maybe that for example, on a Friday it's being carried out as a place of public worship but then the other days when that isn't occurring, it is a community use, therefore you've got effectively a mixed use development being carried out, i.e. two uses."
I note that there was much evidence and submission from the respondent regarding the lack of compliance with the applicant's development consents to date and the alleged adverse impacts of the applicant's activities at the Premises. However, I note that the Order the subject of these proceedings is a stop use order, and not for example, a Compliance Order under item 11. Therefore, the relevant question is whether the Premises is being used for a prohibited purpose, not whether the applicant has complied with its existing development consents or whether the impacts of a relevant use are acceptable. I have therefore not given the traffic evidence or general evidence of impacts weight in the consideration of the characterisation of the use of the Premises.
The applicant relies on the affidavit and oral evidence of Dr Afsar, to establish that the Premises is being used as a community facility, including: 1. "The AMWC is a not for profit incorporated association. It is a community organisation and its purpose is to provide for the welfare of the growing Muslim community living in the Campbelltown Local Government Area" (at [9]). 2. "All members of the AMWC are Muslims and mainly Bangladeshi descendent Australian Muslims" (at [11]). 3. "The community facility is not intended to be a Mosque, which is a place of worship for Muslims. In Islam, the first prayer of the day must be performed before sunrise (between dawn and Sunrise) and all Mosques are open at that time. The AMWC community facility does not open until 9am" (at [28]). 4. "The community facility is used in three ways" (at [36]). 5. "First, the AMWC itself organises and hosts programs at the community facility. Some examples of events at the community facility include: 1. arranging fundraising programs for the victims of natural disasters both in Australia and overseas…. 2. hosting a reception for the elected MPs in the greater Campbelltown area; 3. hosting a reception to the elected councillors of Campbelltown City Council; 4. Winter Pith Uthshob (Traditional Bangladeshi Cake Festival) where the AMWC hosted a lunch where visitors bring a plate to share; 5. arranging weekly and monthly programs with a speaker to deliver a talk on a point of interest; 6. arranging Friday programs; 7. organising volleyball games and other sports tournaments; 8. celebrating achievements or milestones, for example when significant grants are awarded to the AMWV; 9. arranging itfar during Ramadan (the time Muslim people break their fast) almost every day; 10. celebrating the end of Ramadan e.g Eid ul Fitr. Members and guests are encouraged to bring dishes to share with others, hug each other and exchange greetings" (at [37]). 1. "Secondly, the community facility is available for hire to the general public, as well as by members of the AMWC. Although the community facility is available for hire by the general public, generally speaking, it is more often than not used by individuals who are Muslims" (at [38]). 2. "The third way the community facility is used is a less formal way by the AMWC members and their guests where they drop in and use it in any number of ways. These uses do not require bookings. For example, a group of individuals may play volleyball or soccer if there is no booking for the use of that equipment. They may sit in the halls and have a discussion or simply read a book. Older people (both local residents and overseas visitors (mainly from Bangladesh)) come to the community facility to socialise, listen to well-being discussions, exercise and participate in discussions. Young persons and children usually come to the community facility after school or during the weekend for any number of reasons, including wellbeing discussions, exercising/walking and religious discussions" (at [45]). 3. "A practising Muslim must pray five times a day at specific times regardless of the location…." (at [49]). 4. "Similarly, attendees of the AMWC community facility stop to pray during their usual programs or activities at the community facility, if they coincide with the time to pray" (at [50]). 5. "For example, if a booking has been made for an activity or an event and the time for prayer coincides with the holding of the activity or event, then the attendees will ordinarily cease the activity and stop for prayer. This generally lasts 5-15 minutes and then the activity continues" (at [51]). 6. "There is no call to prayer at the community facility…" (at [52]). 7. "Friday is a spiritual day for Muslims. A practising Muslim must pray on Friday at around midday with others. That is, unlike the other times of prayer, on a Friday, Muslims should not pray alone, but pray in congregation" (at [53]). 8. "Each Friday, the AMWC books the community facility between 12pm and 3pm as a booking referred to generally as "Member well-being and intellectual talks." Muslim people may take leave on Friday and come to the community facility along with their friends and elders at around mid-day with some food or other items such as homegrown vegetables to share with others. I observe them socialising and engaging in various activities such as gardening, group discussions, reading the Qu-ran or Islamic books and listening to lectures delivered by Islamic scholars. Whilst they are there at this time, they can take part in community prayer" (at [54]). 9. "The time it takes to pray on a Friday is approximately 15 minutes out of a booking of 3 hours" (at [55]).
During oral evidence, when asked why people frequented the Premises on Friday lunch times, Dr Afsar stated on multiple occasions that he didn't ask anyone individual why they came (T 2 October 2024 p 11 line 38) and "people come for different purpose. I didn't ask everyone why you came here, why came there" (T 2 October 2024 p 11 line 48-49) and emphasised that people come for the "program":
The applicant also relies on the expert evidence of Dr Ali who relevantly states: 1. "Islam rests on what is often described as The Five Pillars of Islam which forms the central framework of a Muslim's faith and practices. These pillars are shahada (the article of faith), salat (the performance of five obligatory daily prayers), zakat (alms giving to the poor and needy), sawm (fasting during the daylight hours in the holy month of Ramadan), and hajj (the performance of pilgrimage to the holy city of Makka by every adult able-bodied Muslim with financial means at least once in one's lifetime)…" (at [10]). 2. "Friday is a day which for Muslims is very important. Friday in Arabic is known as Jumu'ah and is the day when Muslim men in particular are expected to come together as a community to collectively worship Allah (God). On this day Muslim men offer a congregational or a community prayer in a mosque, a hall, a community centre, or in an open-air enclosure… The central distinguishing aspect of Jumu'ah congregational prayer compared to the other give daily prayers is the sermon given by a sheikh or iman (prayer leader). Jumu'ah congregational prayer is one of the most exalted Islamic rituals and its obligation confirmed in the Qur'an …." (at [21]). 3. "Prayer, salah in Arabic, is the main form of worship in Islam. It is the second pillar, after shahadah - article of faith, of Islam consisting of canonical prayers which are supposed to be performed five times a day by every single Muslim who has reached puberty" (at [26]). 4. "Although Islam permits praying individually as a private practice and, therefore, Muslims may pray individually in an office, at home, in a park, or on an aeroplane and one can find specific places allocated for Muslim prayers such as at university campuses, at airports, and even some shopping centres, it places greater emphasis on praying in congregation with greater reward. Thus, Muslims consider praying in a congregation vital as it is more rewarding and they, also, believe that it enables them as a group to produce shared emotions, symbols, beliefs, a world of meaning, a distinctive identity, a community of values, and a structure of selfhood collectively reflecting Islam as a communal faith" (at [30]). 5. "… Friday, known as Jumu'ah in Arabic, is the most holy and superior day of the week for Muslims… Jumu'ah is an obligatory congregational prayer that must be observed by every mature Muslim every Friday, and it replaces the regular middy prayer known as Dhuhr which has four obligatory rak'ats or prayer segments. It is one of the most important acts of worship articulated in Islamic scriptures" (at [34]). 6. "The significance of Jumu'ah is profoundly spiritual and social. Spiritually, attending the Friday congregational payer is seen by Muslims to be a demonstration of their faith and submission to Allah…. When Muslims pray in congregation on Friday, they have the opportunity, which is otherwise unavailable on the same scale during the week, to share their faith with each other and collectively praise their Creator" (at [36]). 7. "As a weekly congregational prayer, for Muslims Friday is not only a sacred day in terms of worship and offering prayers and engaging in rituals but also is an essential social event of them coming together in a powerful act of faith that establishes relations and builds unity. Friday congregational prayer is social not only because a Muslim may interact with follow Muslims when praying together but also because prayer entails an inter subjective relationship with others that is made possible only by the action of praying together" (at [38]). 8. "Jumu'ah prayer, in its social role, performs the function of social glue, that is, it facilitates regular interaction among community members, creates an environment for sharing Islamic beliefs family values, and morals, and enables social cohesion and forward movement of the members of the community at the same speed. The Minot Bangladeshi Muslim community represented by the Australian Muslim Welfare Centre Inc, is a good example of this. Its community centre, as was apparent from my visit and my reading of the affidavits, acts as a forum for Bangladeshi Muslims with shared interests and goals to come together at a central location to renew or build bonds, further develop virtuous ideals, which in turn helps lead to a stronger and more harmonious community…." (at [40]).
The applicant also relies on the expert evidence of Ms Hyde who states in the Joint Town Planning Report (at p 5 -6): "Among other things, the community centre provides a range of physical activities targeted at both adults and children for members at the AMWC. This includes regular table tennis, volleyball, kids soccer and physical fitness sessions. This comprises a number of bookings throughout the week of which members can specifically attend the Site to participate in. However, this would not define the use at the Site as a 'recreation facility (indoor)' or 'recreation facility (outdoor)' but rather one of the many activities that fall within the umbrella of a community facility. The community facility also hosts cultural teachings and intellectual discussions which can include prayer. These discussions are not necessarily religious and can include social topics that are impacting the community…. .. The evidence from Council primarily focuses on the use of the Site around midday on a Friday which includes prayer. It does not show the spread of other activities undertaken at the Site both in conjunction with that prayer or throughout the week or month that are held at the community facility. It is to be expected that there will be activities associated with the community facility that will be better attended by members of the AMWC community compared to others. In particular, Friday is an important day for Muslims in coming together which does include prayer but also provides a much greater social connection as part of a larger program for the community to gather and talk promoting individual wellbeing. The booking register demonstrates the use of the Site is much more varied and consistent with the definition of a community facility under CLEP which includes a mix of physical, social, cultural and intellectual programs aimed at improving the welfare of AMWC members. Focussing on one aspect of a program forming part the of the community facility use does not provide a balanced representation of the overall use. The prayer component at midday on Friday is a small part of the overall operation of the community facility and comprises around 15 minutes of the longer midday program on Friday for members aimed at wellbeing and intellectual talks. It provides an important social aspect within Islamic faith to meet with other Muslims and build bonds within the community. I do not consider this element to trigger the overall use at the Site as a PoPW."
In response to my question of the meaning of the term "purpose of religious worship", Ms Hyde stated (at T 2 October 2024 p 88 line 49-50 and p 89 line 1-5): "I think I would say in terms of the place of public worship it would be the key component of why people are at the site. Obviously whether or not there's other aspect, counselling, social events, but that would be the key reason, and then there would be a host of other activities as opposed to prayer could still occur on a site, but I wouldn't necessarily say it automatically qualified it as a place of public worship depending on other uses and the extent of other uses that also go on."
Ms Hyde went on to state, in response to questioning from the applicant's counsel (at T 2 October 2024, p 90 line 36-46): "O'GORMAN-HUGHES: But you say that the definition is, a key component of the definition is why people are at the site. They're all coming there on a Friday just after midday at the time when the Jummah prayer starts. WITNESS HYDE: Correct. O'GORMAN-HUGHES: So doesn't that suggest to you that that's the key component of why the people are there on the Friday just after midday? WITNESS HYDE: I agree, it's definitely a - a key component of why some people are there, but it's not the only component as to why they're there."

Consideration

There appears to be a distinction in this case between the use of the Premises generally and the use of the Premises on Fridays at lunch time.
The applicant posed the question for determination as follows (see T 1 October 2024, p 15 line 48 to p 16 line 3): "..throughout the week, Monday to Thursday, Friday evenings - other than the Friday lunchtime prayer - Saturday and Sundays, the property is irrefutably, we would submit, having regard to the evidence of Dr Afsar, that the premises are being used for the purpose of community facility. The issue is what, if anything, does the use for the purpose of prayer on Friday lunchtimes have on that characterisation?"
However, in answer to my question to the respondent regarding whether it contended the Premises should be characterised as a place of public worship in its entirety or whether it was just Friday lunch times that the respondent said constituted the place of public worship use, the respondent said (at T 1 October 2024, p 21 line 49-50 & p 22 line 1-2): "My instructions are it's all of the activities or worship cumulatively. Having said that, the strongest aspect of the case relates to the regular Friday prayer sessions, rather than a sporadic prayer session associated with something else."
It appears to be undisputed that large numbers of people from the Muslim faith attend the Premises on Friday lunch times and that prayer forms a component of these Friday lunch time attendances. The question is therefore whether the purpose of the attendances is for prayer/worship or a more general community-based program and whether these Friday lunch time programs (or any times of prayer) amount to the use of the Premises as a place of public worship.
It is clear from Dr Ali's expert report that Friday is a spiritual day for Muslims and a practising Muslim must pray on Friday at around midday with others. Dr Ali states that unlike the other times of prayer, on a Friday, Muslims should not pray alone, but pray in congregation. I place significant weight on the unrefuted expert evidence of Dr Ali that praying on Fridays at lunch time in congregation "is one of the most important acts of worship articulated in Islamic scriptures". I also accept Dr Ali's evidence that praying together in congregation provides many benefits, including social connection, establishing relationships and building unity and that the sermons or khutbahs that form part of the Friday congregations are not always on religious topics.
Dr Ali's views are supported by Dr Afsar who states that: "Friday is a spiritual day for Muslims. A practising Muslim must pray on Friday at around midday with others. That is, unlike the other times of prayer, on a Friday, Muslims should not pray alone, but pray in congregation."
Although Dr Afsar maintained that he did not know the purpose for congregational attendance at the Premises on Fridays at lunch time, it is clear from both his own evidence and the evidence of Dr Ali, that it is extremely important for male members of the Muslim faith to pray in congregation on Fridays at lunch time. Whilst I accept that there are other elements to the Friday "program", that not all sermons delivered at this program are religious in topic, and the prayer component of the program may only last approximately 15 minutes, it is clear that the act of public worship and prayer is the fundamental or key reason for attendance at the Premises at this time.
This is supported by the large numbers of people from the Muslim faith attending the Premises at lunch times on Fridays as documented in the affidavit evidence of Mr Rodricks, Mr Kelso, Mr Clifford and Mr Saville, the advertisements or announcements regarding prayer times and sessions being held at the Premises at around lunch time on Fridays, and the acknowledgement by Ms Hyde that prayer "is a key component of why some people are there" (T 2 October 2024, p 90 line 36-46).
Therefore, on the basis of the evidence in this case, I am satisfied that the primary purpose, or end to which the Premises is seen to serve (as per Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 at [27]) for members of the Muslim faith/congregation attending the Premises on Friday lunch times is for public prayer and worship. This is notwithstanding that there may be other aspects to the "program" as explained by Dr Afsar.
I am also satisfied that at the times the Premises is being used for the primary or dominant purpose of public prayer and worship, the Premises is being used as a place of public worship at that time. I note there is a clear distinction between an airport or school where the primary or dominant purpose for peoples' attendance at this premises is for travel or education, respectively, where people may pray, and a premises where the primary or dominant purpose for peoples' attendance at the premises is for prayer and where other activities may occur.
I therefore find that the Premises is being used as a place of public worship when the dominant reason or purpose for attendance at the Premises is for public prayer and worship. This finding is consistent with the definition of "place of public worship" in the CLEP which relevantly provides that "a building or place used for the purpose of religious worship by a congregation or religious group" will fall within the scope of the use (emphasis added). On the evidence before me, this primarily occurs on Fridays at around lunch time and during Ramadan (as per the undisputed affidavit evidence of Mr Saville) when large numbers of the Muslim congregation or religious group attend the Premises for the primary purpose of public religious worship. As stated in the definition of "place of public worship" in the CLEP, this characterisation can apply "whether or not the building or place is also used for counselling, social events, instruction or religious training".
I am otherwise satisfied based on the evidence of Dr Afsar that at other times, the Premises is used for the dominant reason or primary purpose of a community facility, being a place owned and controlled by a non-profit community organisation and used for the "physical, social, cultural or intellectual development or welfare of the community" (as per the definition of "community facility" in the CLEP). This finding is consistent with both the evidence in this case, and the views of Mr Swan who relevantly states as follows: 1. In the Joint Town Planning Report at [15(j)], Mr Swan states: "In summary, based on the affidavit evidence it is my opinion that the use of the site has been used at times as a place of public worship and not a community facility…" (emphasis added); and 2. In oral evidence, Mr Swan states (at T 2 October 2024 p 89 line 7-16): "My view would be that the purpose is, I think it is similar in the sense that it's - it's the principal purpose of whatever someone is going to the place for, and I guess all I would qualify it is that you can have multiple uses that - that - that become a mixed use and so if the principal purpose at a particular time, i.e. the Friday area, is for the purpose of religious worship by a congregation, then on a Friday at that time the use is being carried out as a place of public worship. And it maybe that for example, on a Friday it's being carried out as a place of public worship but then the other days when that isn't occurring, it is a community use, therefore you've got effectively a mixed use development being carried out, i.e. two uses." (emphasis added)
I therefore find that the Premises is being used as both a community facility and place of public worship, depending on the activities carried out at the Premises and the primary reason or purpose for the use of the Premises.

Is one use ancillary or subservient to the other?

As I have found that the Premises is being used as a community facility and place of public worship at different times, it is necessary to determine whether the prohibited place of public worship use at lunch times on Fridays (or other relevant times when the primary purpose for attendance at the Premises is prayer/public worship) is ancillary or subservient to the permissible community facility use.
Both parties referred to a number of cases in relation to this issue. I have referred to the key cases below.
Both parties referred to the decision of Preston CJ in Pet Carriers (at [28]) which is extracted below: "A use of land can also be for two or more purposes. The purposes may or may not be conflicting. Non conflicting purposes have similarities in character… Conflicting purposes are different in character. Where land is used for two conflicting purposes, difficult questions of construction and characterisation can arise when the environmental planning instrument permits one purpose but prohibits the other. It may be necessary to ascertain, having regard to the character, extent and other features of the uses, whether the prohibited purpose can be regarded as subsumed in the permissible purpose, so that it is legitimate to disregard the prohibited purpose and treat the permissible purpose as that for which the land is used, or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes."
The respondent also referred to the case of Baulkham Hills Shire Council v O'Donnell (1990 69 LGRA 404 at 409 per Meagher JA (Samuels AP and Clarke JA agreeing): "Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensures or not. When a resident uses his land to park is motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant;… But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses … illustrate the point; they show that a "convenience store" and a petrol station are two independent uses, although the former is clearly ancillary to the later".
The applicant relevantly submits in its written submissions (AWS) that: "[56] Even if there was some merit to Council's argument that premises are being used part of the time as a place of public worship, the use would be subordinate to the dominant purpose of the community facility. [57] In this regard, for the purpose of characterisation, one can disregard the subservient use and treat the dominant purpose as that for which the whole is being used. This is the second, alternative way in which the Applicant puts its case. [59] In this case, the overwhelming majority of the use during the week is for use for the purposes of a community facility. This is made clear by the evidence of Dr Afsar, the observations of Council officers, including Sheldon Rodricks, and the monthly booking time sheets. Based on 1 hour of use on Friday in a typical month, Friday prayers equates to 4% of both the weekly hours and 4% of the monthly hours using June 2023."
The respondent states in its written submissions that: "The submissions advanced by the Applicant appear to advance the doctrine that the use of the premises for worship is permissible as subservient to the use of the premises as a community facility. That submissions should be rejected for two reasons" (at [24]). "Firstly, the definition of place of public worship expressly provides that a place will meet the relevant definition, even where it is used for other activities (such as social events, religious instruction, counselling or training) on which the Applicant relies. The definition of community facility specifically excludes a place of public worship" (at [25]). "Secondly, even if the definitions were not crafted in that way, the use is on the evidence of a nature and extent that goes well beyond a subservient use" (at [26]). "The nature and extent of the use of the premises for worship - evidenced by the volume of persons attending to pray in congregation, the advertising of the premises for the purposes of prayer at specified times, and the fact that those times coincide with the times when Dr Ali said that adult male Muslims are required to attend and pray in congregation - provide overwhelming evidence to suggest that the premises are being used for the purposes of a place of public worship. In evidence are videos showing large numbers of people pouring out of the buildings after the obligatory congregational Friday prayer. That use is not - contrary to the submission made by the Applicant - subservient to the other uses of the property. It is an independent use for planning purposes" (at [34]).

Consideration

Having regard to the evidence and submissions in this case, I am satisfied the times during which the Premises is used as a place of public worship are of sufficient character and extent to render the place of public worship use a separate and independent use to that of a community facility use.
This is primarily due to the significant numbers of people (up to approximately 300) that attend the Premises at various times for the dominant purpose of public worship. At these times, there is a significant use of the Premises that is not subsumed within the community facility use. Notwithstanding that I accept there are cultural and social aspects to the act of public worship and the public worship component may be of limited duration, the evidence clearly shows that the dominant purpose is for public worship and it is the cultural and social aspects which are in fact, incidental to, or subsumed within, the public worship use at these times.
However, I am satisfied that where the primary purpose for peoples' attendance at the Premises is for community facility related activities such as sports programs, fundraising events, wellbeing discussions and intellectual talks, birthday parties and other celebrations, and this happens to coincide with prayer times in the Muslim faith, such prayer is incidental and subservient to the community facility use and does not constitute the Premises being used as a place of public worship at those times.
For completeness, I do not consider the Order to be sufficiently uncertain as to render it invalid (see AWS at [30]-[33]). It is clear that any use of the Premises as a place of public worship must stop under the Order. I have determined in this judgment that the Premises is only being used as place of public worship when the primary purpose or reason for peoples' attendance is for public prayer or worship. On the evidence before the Court, this includes Friday lunch time programs or other times, such as Ramadan, when the primary purpose for attending the Premises is for public worship by members of the Muslim congregation.

Is it appropriate to "stay" the Order?

I have determined that the two uses of the Premises are separate and independent uses, and the Order was therefore validly issued. I will now turn to the applicant's third premise, being whether it is appropriate to stay or modify the Order as proposed by the applicant.
The applicant submits that in the event I find that the Order was validly issued, the Court should exercise its discretion to modify the Order to allow an extended timeframe for compliance so as to provide the applicant time to pursue its Planning Proposal. The applicant argues that it is appropriate for the Court to exercise its discretion in this manner because: 1. The applicant now has the benefit of the Modified Consent and is working to enliven that consent (which is dependent on certain conditions being fulfilled). 2. The town planning experts agree that, "if the conditions of the Mod are complied with, there will be no adverse consequences of the uses continuing including for the use of public worship" (AWS at [71]). 3. "The applicant has submitted a planning proposal to Council. Given the absence of impacts, the order should be modified along the lines of the modification in Cai v Fairfield City Council [2022] NSWLEC 58: Unless planning proposal 106/2024/E-PP has been the subject of a Gateway Determination pursuant to s 3.34 of the Environmental Planning and Assessment Act 1979, you are required to cease using the premises for the purposes of a place of public worship by 31 July 2025" (AWS at [72]).
The respondent submits that the Court's discretion should not be exercised in the manner proposed by the applicant because: 1. "… the time for determination of the planning proposal, according to the Council's planner Jeremy Swan, is likely to be several years away, in 2026…" (RWS at [55]). 2. …"to this period would need to be added the time to lodge, assess and determine any subsequent development application before the use of the site as a place of public worship could be lawfully carried out" (RWS at [55]). 3. "… whilst it is not uncommon for the Court to stay or modify orders to permit planning approval to be provided for unauthorised development (via a development consent or building certificate), examples of the Court agreeing to do so where that use is prohibited are hard to find" (at RWS at [57]]. 4. "… there is evidence of repeated breaches of conditions of consent relating to maximum numbers of persons attending the premises in the past…. The Court could have no confidence that, if a stay or modification to the order were granted which permitted the prohibited use to continue, that attendance numbers would be limited based on past experience" (RWS at [59]).
Having regard to the evidence and submissions in this case, I do not accept the applicant's argument that it is appropriate to modify the Order in the manner proposed. This is because: 1. The use of the Premises as a place of public worship is presently a prohibited use, rather than a permissible use being carried out without consent that could be rectified by the lodgement (and approval) of a development application. To this end I note the decision of Lloyd J in Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31; (2003) 123 LGERA 367 at [18]-[20] where the argument to permit a prohibited use to continue pending a rezoning application to permit that use was rejected. 2. There is no certainty that the Planning Proposal lodged by the applicant will succeed and even if it was to be successful, the evidence of the town planning experts is that it would likely take between one and half and three years and then would require a development application and related process. I do not consider it appropriate to stay the Order for a period of this duration and of this level of uncertainty. 3. The date of 31 July 2025 proposed by the applicant is similarly uncertain and does not encompass the time required for the lodgement and determination of a development application even if the Planning Proposal was the subject of a Gateway Determination by this date. This would have the effect of staying the Order until a time by which there would still be no lawful basis for a place of public worship use to be carried out on the Premises This approach would produce an unsatisfactory and ultimately indeterminate result and should not be adopted.

Orders

The Court orders that: 1. (1) The appeal is dismissed. 2. (2) The exhibits are returned except for C, D, 4, 5, 6, 7, 8.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2024

(2011) 180 LGERA 343

(2013) 201 LGERA 116

(2007) 151 LGERA 400

(2003) 123 LGERA 341

(2003) 123 LGERA 367

At a glance

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Decision date

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Judgment (14 paragraphs)

Parties

Cases Cited (14)