Canterbury Municipal Council v Moslem Alawy Society Ltd

High Court of Australia|1987-03-10|Before: Dawson JJ, Cripps J

High Court of Australia Mason, Wilson, Brennan, Deane and Dawson JJ. Canterbury Municipal Council v Moslem Alawy Society Ltd [1987] HCA 8

The Court delivered the following written judgment: -

1987, March 10 Mason, Wilson, Brennan, Deane and Dawson JJ.

Like other followers of Islam, members of the Alawy sect see it as a fundamental requirement of their religious observance that they worship five times daily: before sunrise, after midday, in the late afternoon, at sunset and when the night is dark. Ideally, this worship is congregational - upon the call of the muezzin and under the leadership of the imam. It can, however, be performed alone or as a member of a small group. It involves the recitation, sometimes spoken and sometimes mental, of set forms of words, including verses from the Koran, and the adoption of prescribed postures (including standing, bowing, genuflecting, kneeling and prostration) while facing Mecca. In Australian localities where there is a concentration of members of the sect, the local group of Alawy may acquire and equip premises to be used for the religious purposes of the neighbourhood congregation. In the past, this has been done in the Sydney suburb of Marrickville, in Melbourne and in Tasmania.

The respondent, the Moslem Alawy Society Ltd. ("the Society"), is a company limited by guarantee. It was incorporated for the purpose of purchasing the land situate at and known as 29 Matthews Street in the Sydney suburb of Punchbowl, upon which a dwelling-house was erected. In due course, the Society purchased those premises and carried out structural alterations within the building. Ignoring service facilities (kitchen, two bathrooms and a laundry) at the rear, the building now comprises two medium sized rooms (at the front) and one large room or "hall". There are approximately sixty-five members of the Society. All are male. All live within the neighbourhood of 29 Matthews Street. All are members of the Alawy sect.

On their purchase by the Society, the premises ceased to be used as a dwelling-house. Since that time, their primary use has been as a place where the members of the Society can, when they so wish, resort to fulfil their obligations of worship as followers of Islam. Use of the premises is confined to the members of the Society, their sons over thirteen years and, occasionally, other adherents of the Alawy sect. The main such use of the premises is as a convenient and suitable place for the performance of one or other of the five daily rituals of worship. The premises are also used for gatherings "in small numbers for quiet readings of the Koran with the elders", as a religious library and for special celebrations of the feasts of Ramadan, Udha and Ali and the observance of the religious and social customs associated with those feasts. One of the front rooms is used as the Society's office and the premises are also used for the necessary meetings of directors and members of the Society. It is not suggested, however, that this incidental secular use detracts from the primary use of the premises for worship by the male members of the sect who live in the area. The question involved in the present appeal is whether that primary use of the premises is as a "place of public worship" for the purposes of the "Canterbury Planning Scheme Ordinance" ("the Ordinance") which was proclaimed pursuant to the Local Government Act 1919 N.S.W. and which is the applicable local planning ordinance.

For the purposes of the Ordinance, the building is located in an area zoned "Residential 2(c3)". Under that zoning, the only use which is permitted without the consent of the local council is as a dwelling-house. Among the uses permitted with such consent is use as a place of public worship. It is common ground between the parties that, unless the current use of the building is as a place of public worship, it is not being used for any purpose for which the local council could lawfully give its consent. In the Land and Environment Court of New South Wales, Cripps J. (as his Honour then was) held that the present use of the building was as a "place of public worship" and granted the consent necessary under the ordinance for its future lawful use for that purpose. Such consent had been previously refused by the appellant, the Council of the Municipality of Canterbury, which is the local council. His Honour's decision that the building was being used as a place of public worship for the purposes of the Ordinance was confirmed by the New South Wales Court of Appeal (Priestley and McHugh JJ.A., Mahoney J.A. dissenting) on an appeal by the Council to that Court. The Council now appeals to this Court from that decision of the Court of Appeal.

It is important to note that the adjective "public" in the phrase "place of public worship" quaifies the noun "worship" and not the noun "place". The consequence of that is that there is a degree of latent ambiguity in the phrase which can only be resolved by the determination of what constitutes "public worship" in the context of the phrase as used in the Ordinance. On one approach, "public worship" means worship carried on in a place which is open to the public generally. On that approach, there is no practical distinction between the phrase "place of public worship" and the phrase "public place of worship". Another approach is to construe the words "public worship" as referring to worship that is not private or domestic in the sense of not being within the privacy of "the closet" or within the confines of close family. On that approach, the phrase "public worship" is used in contradistinction to personal or family devotion which could be expected to be carried on in an ordinary dwelling-house. So understood, the phrase would encompass worship carried on openly in a place of communal worship of a local congregation whose membership extends beyond a domestic group regardless of whether the particular place be open to the public generally.

As a matter of ordinary common sense, it seems to us to be unlikely that the words "public worship" in the phrase "place of public worship" were used in the Ordinance in the restricted sense of referring only to worship in a place that is open to the public generally. Whether the members of a local congregation who gather on premises for the purposes of religious worship restrict attendance to those initiated into the particular religious group or sect or, alternatively, allow any interested non-believer to attend to observe their worship seems to us to have little relevance for the purposes of a planning scheme ordinance for a Sydney suburban municipality. In a context where the Ordinance makes no distinction between places of public worship by reference to the number of people who might gather in them, the result of importing into the notion of public worship a requirement that the worship be in a place open to the public generally would be that, under the Ordinance, use of premises as an open cathedral could be permitted in a residential area notwithstanding a regular attendance of thousands of worshippers while use of premises as a closed church or chapel to which the members of a small local congregation came to worship together was absolutely prohibited. From a planning point of view, such a result would be simply absurd. Moreover, the effect of such a construction of "public worship" would be to give to the Ordinance an operation which discriminated against any group or sect whose rites of worship are, for any of a variety of possible reasons, closed to the general public (cf., e.g., W. E. H. Stanner, On Aboriginal Religion (1966), pp. 5-6 and T. F. O'Dea, The Mormons (1957), p. 58) and reflected an approach tht would lie ill with currently accepted standards of religious equality and tolerance in this country.

When one turns to the cases, one finds that there are authorities which support the view that, at least in the context of an exemption provision in rating legislation, a reference to a "place of public worship" should be construed in the restricted sense of a place (of worship) which is open to the public generally: see, e.g.,Association of the Franciscan Order of Friars Minor v. City of Kew [1] ; Church of Jesus Christ of Latter-Day Saints v. Henning [2] ; Joyce v. Ashfield Municipal Council [3] ; and Broxtowe Borough Council v. Birch [4] . It is strongly arguable that, except to the extent that they do little more than follow previous authority (see, e.g., Joyce ), those cases are to be explained either by reference to the special situation of worship in the domestic premises used by the members of a closed religious community or as reflecting an approach that, in a country where (unlike Australia) there is an established religion, it is permissible to look to the practices of the established Church to determine what constitutes public worship: cf. the approach adopted in some of the old charitable trust cases. Even if those cases do correctly establish some more general proposition in rating exemption cases however, they cannot properly be treated as authoritative of the meaning of the phrase "place of public worship" in the Ordinance. The considerations of context and policy which might be relevant in resolving the latent ambiguity of that phrase in an exemption clause in rating legislation are plainly different from those which are relevant in determining the meaning of the phrase in planning legislation. In the context of rating legislation, the desirability of open and avowed rather than clandestine religious meetings has been seen by some (as they were seen by the proponents of (1812) 52 Geo. III c. 155 (see the House of Commons debates of 20 July 1812, pp. 1108-1109) to be relevant to whether the place of meeting should enjoy exemption from liability for rates. The considerations underlying such a perception are, however, scarcely relevant to the purposes of planning provisions of the kind contained in the Ordinance. Indeed, in the context of the Ordinance where use as a "place of public worship" is permitted, with consent, in residential areas, the fact that a place used by members of a particular religious group for the purposes of their worship was open to the general public is as much a negative as a positive consideration.

[1944] V.L.R. 199. 2. [1964] A.C. 420. 3. [1975] 1 N.S.W.L.R. 744. 4. [1983] 1 W.L.R. 314; [1983] 1 All E.R. 641.

More in point for present purposes than the rating cases is the fact that the Ordinance contains a definition of "place of public worship" which, although partly circular, lends support for the view that the phrase is intended to be read in a sense which would encompass premises which are used as a place to which members of a local religious group or sect resort to worship in the presence of one another regardless of whether they are open to the public generally. A "place of public worship" is defined (cl. 6) as "a church, chapel or other place of public worship or religious instruction or place used for the purpose of religious training". Obviously, a place can be a "chapel" or a "place of religious instruction" or a "place used for the purpose of religious training" regardless of whether or not it is open to the public generally. That being so, the definition precludes any general proposition that a place cannot be a place of public worship for the purposes of the Ordinance unless it is open to the public generally. Moreover, the words "church, chapel or place of public worship" have a long legislative history going back, as McHugh J.A. pointed out in the Court of Appeal in the present case, at least to the Act of Uniformity (1662) 13 & 14 Car. II c. 4, s. III. In the context of that Act, the reference to "public worship" has been properly understood as a reference to "congregational worship" as distinct from "private and family devotion": see, e.g., Cole v. Police Constable 443A [5] . That distinction between private or domestic worship on the one hand and public or congregational worship on the other can also be discerned in both some earlier (see, e.g., (1593) 35 Eliz. I c. 1, s. I) and subsequent United Kingdom legislation: see in particular, the Conventicle Acts (1664) 16 Car. II c. 4, s. I and (1670) 22 Car. II c. 1, s. I, and P. Collinson, "The English Conventicle", p. 223 in W. J. Sheils and D. Wood (eds.), Voluntary Religion, vol. 23 of Studies in Church History (1986). Indeed, in such legislation the prohibition upon congregational worship was sometimes imposed by reference to the presence of a specified number of persons "over and above those of the same household" or "besides the immediate family and servants" who would by joint participation in worship attract the statutory prohibition: see, e.g., the Conventicle Acts and (1812) 52 Geo. III c. 155, s. II and the speech of the Earl of Derby in House of Lords Parliamentary Debates, 6 July 1855, p. 493.

It was submitted on behalf of the appellant Council that s. 18 of the Interpretation Act 1897 N.S.W. supports the view that the rating cases should be applied, at least indirectly, to determine the meaning of the phrase "place of public worship" in the Ordinance. That section provides, for present purposes, that where an Act confers power to make ordinances, "expressions used in any such [ordinance] shall, unless the contrary intention appears, have the same meanings respectively as in the Act conferring the power". The Ordinance was made pursuant to Pt XIIA of the Local Government Act 1919 N.S.W. which contains no definition of the phrase "place of public worship" and the rating cases are, plainly enough, relevant authority on the question of the meaning of the phrase as used in provisions of that Act providing for exemption from rating. Indeed, Joyce's Case was a decision on the meaning of "public worship" in such a provision (s. 132(1)(h)) of the Local Government Act. There is, however, an obvious answer to the submission. It is that the Ordinance contains its own definition of the phrase "place of public worship". That definition in the Ordinance, read in its context in a planning ordinance effectively displaces any presumption that the phrase should be understood as having the meaning attributed to it in the rating cases. As has been seen, the definition plainly indicates that, for the purposes of the Ordinance, a place can be a place of public worship notwithstanding that it is not open to the general public.

It follows from what has been said above that, for the purposes of the Ordinance, the phrase "place of public worship" is to be understood as encompassing a place of congregational, as distinct from private or domestic, worship. So understood, it encompasses a place in which the members of a local congregation or religious group regularly gather together for worship in the presence of one another regardless of whether the place is open to the public generally or, for that matter, to all of the members of that congregation or religious group.

As Priestley J.A. pointed out in the Court of Appeal, the evidence about the precise use made of the premises involved in the present case is somewhat scanty. It does, however, suffice to establish that the primary use of those premises is as a place to which the male members of the Alawy sect living in the Punchbowl area resort to perform acts of worship in the presence of any other local members of the sect who may be present for the same purpose at the time. That being so, the primary use of the premises is as a "place of public worship" within the meaning of that phrase as used in the Ordinance.

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