APPLICANTS FOR REVIEW : Kevin Hadley and Anne Hadley

RESPONSIBLE AUTHORITY: Yarra Ranges Shire Council

RESPONSIBLE AUTHORITY: Yarra Ranges Shire Council

RESPONDENT/OBJECTORS: Kevin Hadley and Anne Hadley

MEDIUM NEUTRAL CITATION: [2002] VCAT 921

Lots 1 and 2 on Plan of Subdivision No. 221653K being the land in Certificate of Title Volume 10003/285.

Approximately 31 hectares of land with access to Woods Point Road via a right of way.

The further hearing of these proceedings is adjourned part-heard to recommence at 10.00am on Monday, 7 October 2002 when two (2) days have been allocated.

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Mr Colin Taylor, solicitor of the firm of Russell Kenney, solicitors, appeared for the Responsible Authority. He presented written and oral submissions.

Mr Simon Molesworth QC, barrister, appeared with Mr B Guzzo, barrister, on the instructions of the firm of Tan & Tan for the Victoria Sangha Association Inc. They presented written and oral submissions and called two witnesses namely Mr George McKelvie Wright, town planner and forester (who gave oral evidence and presented a written report) and Ms Bee Lian Soo, an officer and committee member of the Victorian Sangha Association Inc.

Mr David Clarke, barrister, appeared on the instructions of Mericka Legal for Kevin and Anne Hadley. He presented written and oral submissions.

Mr Geoff Adair of the Country Fire Authority appeared for that body.

Various plans, photographs and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under s.82 of the Planning and Environment Act 1987 (PE Act) for review of a decision to grant a permit.

Application under s.80 PE Act for review of conditions in a permit.

Rural Zone and subject to a Wildfire Management Overlay and partly affected by an Erosion Management Overlay under the Yarra Ranges Planning Scheme.

GROUNDS OF APPLICATION FOR REVIEW - P001012/2002

The grounds as set out on the application for review are in the following terms:-

1. Excessively outside planning policies and guidelines.

2. To the detriment of personal and property security and privacy.

3. Farmers' rights, the environment, and community social benefits.

Further grounds were subsequently given in the following terms:-

1. That the developers Fire Management Plan is inadequate, flawed and dangerous to the residents, neighbours, emergency services, and public at large.

2. That the Environment Management Plan is flawed, and the development will provide a net loss to the environment - as acknowledged by both the developers and council - in direct conflict with environment policies.

3. That our rights as farmers, as outlined in policy, will be diminished and effect our capacity to earn a living uninterrupted by the neighbouring development and activities.

4. That our property, and personal safety and security, will be adversely put at risk by the development.

5. That the development falls outside Yarra Ranges Planning Scheme for - Rural Areas, Recreation & Tourism and Municipal Strategic Statement. The development also conflicts with the Regional Strategy Plan and the 2020 Strategic Vision of the Shire.

6. That council have failed to identify any area of policy which supports their decision to grant a permit overriding our objections on reasonable policy guidelines.

7. That the fire management plan is discriminatory.

8. That the site chosen is inappropriate to service communities social and welfare needs.

9. That in providing a peaceful environment for the residents of the monastery it will come at great cost and interruption to our peace and harmony.

10. The development cannot provide screening to secure our privacy.

11. Custom and usage of the narrow access track to the developer's property passes through the middle of our property and has never been open to the public at large. The proposal represents a significant change to road usage.

12. Applicant's proposal being a Place of Worship (Buddhist Monastery) and Education Centre is clearly outside rural planning policies.

13. The car park (10 spaces) overlooking our property is not within policy for rural zoned land.

15. Economic development only a benefit if Monastery (place of assembly) located in township. Refer Tourism Policy.

16. Construction site 6 year timeframe excessive.

18. Environmental scenic landscapes will be changed.

19. Non agricultural use in a rural zone (other than residential) must demonstrate why. Such demonstration has not been established.

20. Any other issue contained in our objection pack provided to council (and made available to the applicant) prior to council's considerations.

21. That some conditions imposed within the notice of decision to grant a permit can not be met and as such the application should be rejected.

22. That the application review summary presented to council by the shire's planning department actually supports our contention that this development is inappropriately sited despite their final recommendation to approve the application.

23. That the imposition of 37 conditions by council clearly recognises the inappropriateness of the selected site.

A further proceeding in relation to this land and this proposal has been commenced by the Victoria Sangha Association Inc. The Tribunal number is P002162/2002. It is a Request under s 87 PE Act for cancellation of an existing permit No. 576 issued on the 1 June 1976 which permit allows logging on the land. This request proceeding was only lodged with the Tribunal and registered a day or two before the commencement of the hearing on the 19 August 2002. Service and other steps in relation to the new proceeding are yet to be carried out. However, the new proceeding is unlikely to be contentious. All parties agree that the old permit from 1976 should be cancelled. It was anticipated that, when the necessary preliminary steps have been carried out, that the case might be dealt with without a hearing pursuant to s 100(2) of the Victorian Civil and Administrative Tribunal Act 1998. However, the current proceedings that were part-heard on the 19 and 20 August 2002 have now been adjourned for further hearing on the 7 and 8 October 2002. It should be possible to have the new proceedings listed at that time and dealt with together with the original two proceedings.

1. A preliminary point was taken that the proposed use of the land is prohibited under the planning scheme and that the permit application giving rise to the current proceedings must fail on that account. It was said that the proposed use of the land is as a place of worship and that this use is prohibited under the planning scheme. The use is not prohibited under the zone controls in relation to the Rural Zone. The argument as to prohibition was based on Clause 53 of the planning scheme dealing with the Upper Valley and Dandenong Ranges Region and the Schedule thereto. It was not seriously contested that these provisions had that effect in the circumstances of this case, and the preliminary legal point proceeded on the basis that place of worship is a prohibited use in the circumstances. It does not follow that the Hadleys' characterisation of the proposal as a place of worship is correct.

2. The permit application giving rise to these proceedings is YR 2001/1159 dated 23 July 2001 and lodged with the Responsible Authority on that day. The application form contains a box headed "THE PROPOSAL" which contains the following words "Describe the way in which the land is proposed to be used or developed:".

3. The application form does not call upon the applicant to specify which particular planning permissions under the planning scheme are being applied for, but rather calls for a description of the proposal in terms that frequently give rise to a layperson's description. The application consists, not only of the form, but of any supporting documents including plans. It is often necessary for the Responsible Authority, on receipt of an application, to examine it to determine what permissions under the planning scheme are required.

4. In this particular application form the proposal section was completed as follows:-

5. The application was subsequently amended by the Responsible Authority with the concurrence of the applicant (indeed at the request of the applicant) to delete the reference to place of worship. Some other amendments, reducing the proposal being applied for, were also made including the deletion of an idea of having up to 100 people attend the land three times per year on the occasion of special festivals. The Victoria Sangha Association Inc. (the Association) as not abandoned that idea, but it is not part of the current proposal. The view is taken that an amendment to the planning scheme would be necessary before that ambition could be realised.

6. The proposal is, in reality, a proposal to establish a small Buddhist monastery on the land. The land is wooded, and this considered by the Association to be an advantage. The particular sort of Buddhist monastery contemplated here is one which apparently normally establishes in forest areas and follows the practices of a branch or part of Buddhism that has monasteries of this style in Thailand and other places. The proposal would retain the current forest cover substantially intact but would involve some buildings and works which require planning permission. Planning permission is also required for the clearing of vegetation that would be involved. However, the controversy which was the subject matter of the hearing on the 19 and 20 August 2002 concerned the question of the "use" of the land, rather than permission for its development.

7. The monastic community for whom the site is intended already exists on other land nearby. At present it has only two monks, but the proposal envisages an increase in numbers up to nine. The plans show three main buildings in a central location and nine small huts known as kutis set in isolated positions in a surrounding bushland. These kutis are small buildings measuring only 2.2 x 3.5 metres with a verandah. Monks sleep in these buildings and spend private time in and around them. There is not much room for anything beyond a mattress. They have no cooking or washing facilities. Those things are provided in the central area.

8. There are three main buildings in the central area. One is a mediation or "Dana hall" which, on the application plans, has dimensions of 19 x 14 metres. There is an entry porch with facilities for the discarding of shoes and two equipment stores. In the main hall would be limited seating and a statute of Buddha. This area would be used for mediation. There are also two meeting rooms and a storeroom in this building. The second building contains an office, library and sickbay with toilet facilities. A third building contains a dining room, kitchen, equipment store, food store, pantry, showers and the like, including facilities for disabled persons. Apart from showers and toilets in this location another ablutions block would be provided further away, closer to some of the kutis. A male and female guesthouse is also planned to accommodate not more than a total of seven visitors. A carpark provides for ten cars.

9. A large part of the daily life of the monks would be occupied in individual and communal contemplation and meditation. Some time in the morning would be devoted to various daily tasks and there would be one main meal in the middle of the day. The monks do not prepare or serve meals but are dependent on supporters from outside coming to the monastery to provide food. In the course of the hearing on the first day there was a good deal of detailed controversy and cross-examination about how many such people might attend and what they might do whilst there. The idea is that such people should not exceed 30 on the site altogether, and normally much smaller numbers would be involved. The fuss about whether these visitors would or would not eat with the monks or enter the Dana hall or indulge in contemplation or receive instruction was considerable, as if these details had an importance far exceeding the relevance and importance we attribute to them. As the guesthouses imply, some people, with the concurrence of the monks or the abbot might reside at the monastery for a week or several weeks as a form of retreat and there would be occasion for accommodating and educating novices and prospective recruits. Also, although they do not drive, monks would not be always confined to the monastery. They might travel to Melbourne or other places for various activities associated with their vocation including instruction, counselling, spiritual care and comfort and the like.

10. This outline account of the main features of the monastery and the communal life of its inhabitants does not, by any means, cover all the details put before us and argued about.

11. The Responsible Authority determined to grant a permit which would allow "Monastery and Education Centre" subject to 37 conditions as set out in its Notice of Decision to Grant a Permit dated 27 March 2002. The objectors have sought a review of the decision to grant the permit and the applicant association has sought a review of some of the conditions.

12. In the course of legal argument in relation to whether the proposal is prohibited many familiar authorities in relation to the classification of land uses in planning terms, questions of whether more than one use is possible on one planning unit (that is to say land to which a permit applies) and whether various activities are ancillary parts of a single or more than one use, were canvassed and discussed in some detail. The principles involved are familiar and it is generally true to say that there was common recognition of their nature and relevance. Although discussed, and where necessary analysed and explained in the course of the hearing, we do not propose to write a treatise on these subjects here.

13. Mr Clarke's primary contention is that the use of the land is as a place of worship and that this is prohibited. He also contended, correctly, that land can be used for more than one purpose, and incorrectly that if one of such uses is prohibited then the whole application must necessarily fail. The law is that if there is more than one use of land they must both or all be lawful. They might be lawful because they are allowed by the planning scheme, or allowed subject to a permit which has been obtained. It does not follow that where there has been an application for permission for 2 or 3 uses that the lawful one or ones must be refused because another one is prohibited.

14. On behalf of the Association and the Responsible Authority it was contended that the use is not a place of worship, but rather monastery or, perhaps, monastery and education establishment. It was noted that monastery might be regarded as an "innominate" (that is to say undefined in the planning scheme) use, or it might be a variety of "residential development" in terms of the definition of that land use in the planning scheme. The distinction is not vital, in this case, because on either view the use comes within Section 2 of the Table of Uses in relation to the Rural Zone. The effect of that is that a permit is required, whether monastery is regarded as an undefined use or as a variety of residential buildings. On the basis of either of these views the proposal is not prohibited and the review hearing should proceed to consider the planning merits of the proposal to decide whether a permit should be granted, or refused, and if granted upon what terms and conditions.

15. It is fair to say that the debate on these matters occupied the second day of hearing. After we had heard the parties in relation to the issue we retired and later returned to give a ruling and reasons. It should be noted in this connection that this preliminary decision, insofar as it concerns a legal question, is the responsibility of the presiding member who is legally qualified.

16. It is also fair to say that some of the submissions raised and argued in the course of the hearing on the second day were dealt with and put to rest during and in the course of discussion. The following is an outline of the ruling and reasons given at the end of the hearing on the 20 August 2002.

17. The proposal was found to be not for a place of worship, but for a monastery. Monastery is, of course, a concept that has been familiar to eastern and western civilization for 2000 years and more. Mr Clarke and Mr Molesworth had referred to dictionary definitions of this word with some reference to authorities as to the usefulness of such definitions. All in all a considerable degree of unanimity over a number of dictionaries was found, and those definitions are in accordance with what we find to be the meaning of the word. A monastery is a community of people who live a communal life in a place (which can also be referred to as a monastery), in seclusion or semi-seclusion from the world in pursuance of a common religious purpose and lifestyle.

18. On the basis of the evidence and application material we concluded that this proposal is for a monastery. We agree that a monastery might be regarded as an undefined or innominant use which would require a permit or as a variety of residential building which likewise would require a permit. In either event a permit is required and the question of whether such a permit should be granted can be assessed on the planning merits of the proposal without it being essential to determine whether monastery is an innominant use or residential building.

19. Having regard to the definition of residential building, monastery probably is a variety of that form of land use. Clause 74 of the planning scheme contains quite a number of definitions of various land use terms. Many of them are grouped together in so called "nests". There is an accommodation group and also a place of assembly group. Some uses in these groups are defined and other are not and the lists are not necessarily exhaustive. Furthermore, some defined land use terms are not in groups. The land use terms include a general one called "Accommodation" which is defined to mean "Land used to accommodate persons". It is clear enough that a monastery accommodates persons. There are various species of accommodation and one of them, the one most appropriate here, is "Residential building". That land use term is defined in the following terms:-

Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependant person's unit, dwelling, group accommodation, host farm, residential village or retirement village.

The expression residential village includes "Backpackers' lodge, Boarding house, Hostel, Nurses' home, Nursing home, Residential college and Residential hotel".

20. Accommodation is an essential element in what is proposed and it is an essential element in the notion of monastery. Monastery, as a place and as a land use, is the place where the monastic community is accommodated. It is a use within the accommodation group rather than another group.

21. It is to be distinguished from place of assembly and the sub-category of place of assembly being place of worship. Place of assembly is defined as:-

Land where people congregate for religious or cultural activities, entertainment, or meetings.

22. It is not a place where they are accommodated in the sense of living, but where they congregate from their places of living or work or whatever. The concept includes amusement parlour, carnival, cinema, circus, drive-in-theatre, exhibition centre, function centre, hall, library, nightclub, place of worship and restricted place of assembly. It includes them but is not necessarily limited to them.

23. We mention the definition of place of assembly with its notion of congregating rather than being accommodated in a residential sense because place of worship, being a sub-category thereof, must satisfy the definition of place of assembly. This is a constraint on the term place of worship and its definition.

24. Place of worship is defined in the following terms:-

Land used for religious activities, such as a church, chapel, mosque, synagogue, and temple.

25. Mr Clarke argued, and others acquiesced, that this definition should be read in accordance with the rule of statutory interpretation known to lawyers as an ejusdem generis. This rules means that where general words are followed by particular words the general words are to be confined to the class created by the particular words. In this case the particular words are church, chapel, mosque, synagogue and temple. These are not the places of accommodation, but rather places where people congregate for worship. Obvious examples are St Paul's Cathedral or Scot's Church.

26. Worship is a religious activity, but a place of worship can involve ancillary activities that might be described as other religious activities including church meetings, prayer groups, bible study groups, Sunday school, choir practice, church use, club meetings, meetings with the church missionary society, ladies guild, mens group and the like. Worship itself is certainly a religious activity, but religious activities are not confined to worship. Religious education and theological training are clearly religious activities but not, of themselves, worship.

27. Furthermore, worship is not confined to places of worship within the understanding of that term in the planning scheme. People or groups of people may conduct worship in other places such as at home, at school, on the beach, in the bush, probably anywhere. The conduct of worship in such other places does not make those locations into "places of worship" within the meaning of that land use term in the planning scheme. The activity which gave rise to the verse which runs in part:-

did not constitute the home of A A Milne as a place of worship in the terms of the planning scheme.

28. A land use, in planning terms, incorporates within itself ancillary activities that are part of that land use. An office and a storeroom associated with a shop used for the administrative work and the storage of stock of the shop are not an office or a store in terms of the planning scheme. They are ancillary parts of the shop. They might be an office or a store if located elsewhere on some other "planning unit". This principle applies generally to land use terms. A domestic tennis court, swimming pool or laundry is merely an ancillary part of a dwelling, even if they would be otherwise located elsewhere. Such ancillaries may be essential or optional aspects of the dwelling. The cooking and washing facilities may be essential and a tennis court or flower garden optional, but they are all ancillaries, just as a heart or big toe are parts of a person's body. A functioning heart is essential and a functioning big toe is not essential, but in either case they are parts of the whole person. They are not separate persons or even separate things, unless detached.

29. In a similar way facilities provided for worship such as a chapel in a mansion, palace, army camp, hospital, school or monastery are ancillary parts of the greater whole in each instance. The chapel at Wesley College in St Kilda Road is not, in planning terms, a place of worship, but an ancillary part of a school. Many schools do not have a chapel, but where, like at Wesley, one is provided, it is not a second or separate purpose for which the land is used; it is an ancillary part of a school.

30. It may be that there are no monasteries that do not have a chapel or Dana hall or equivalent. A religious monastic community is likely to regard worship or its equivalent as an essential part of the life of the community. However, that may well be overstating the situation. Some monasteries related to some religions may practice meditation and contemplation without activities normally regarded as "worship", and even those that do may, or may not have a special building or designated place for the purpose. This particular monastery proposal contemplates development in four stages. The first stage is limited to the essentials of the monks' toilets and three kuti huts. The Dana hall will not come until Stage 4. Until then any communal meditation or worship or worship-like activities would have to be carried on without the advantage of a purpose built building. The point is that where a monastery does have a chapel or Dana hall that facility is merely an ancillary part of the monastery (whether regarded as essential or not). It may be a place for worship, but it is not a separate land use as a place of worship within the meaning of that land use term in the planning scheme.

31. We are satisfied that this is a proposal for a monastery, and it is a monastery whether or not its ancillaries include a Dana hall or a chapel, and whether or not the Dana hall contains a shrine or a consecrated Buddha and whether or not teaching is carried on, or worship, or ordination type ceremonies to mark the acceptance of a novice into the status of a full monk, or whether non-residents who are not monks come onto the property temporarily or are accommodated there for some time, and whether or not they receive instruction or participate in worship or meditation or other ancillary aspects of the monastic life of the religious community while they are there. Practices of various monasteries of various religions and various denominations and orders within religions, vary as to these things without affecting their status as monasteries and without each such activity creating a new and separate land uses for planning purposes.

32. Thus proposed Dana hall, or other places where worship or mediation or contemplation are intended are not separate uses distinct from the monastery, but are parts of it, and the use as a whole is monastery and not place of worship.

33. Whilst it has been suggested that some educational activities, whether in relation to novices or candidates for monkhood or for established monks or for visitors, are contemplated; these activities and the facilities for these activities are likewise ancillary parts of the single real and substantial use of the land as a monastery. A seminary, college, university or school may be seen as an educational establishment, and in relation to a boarding school or college, the accommodation may be seen as ancillary to the educational establishment; but for a monastery, including this proposed monastery, such educational activities (however important) are ancillaries of the single proposed land use as monastery.

34. The proposed use of this land is not as a place of worship and the proposal does not include the use of the land for more than one purpose including place of worship. Thus the proposal is not prohibited in whole or in part. It therefore remains for the hearing to proceed to a consideration of the planning merits of the proposal. The time originally allocated for the hearing on the 19 and 20 August 2002 having been exhausted it was necessary to adjourn the further hearing to another date which is fixed as 10.00am on Monday, 7 October 2002 when two (2) days have been allocated.

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