Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124

Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124 - VCAT 2015 case summary — Zoe

[32]

The Australian Islamic Mission Incorporated applied to the Greater Bendigo City Council for a planning permit to develop a mosque, sports hall and associated facilities on a site in East Bendigo. This would provide a purpose-built facility for the Muslim community that currently worships at facilities offered by Latrobe University.
The proposal has generated a high level of public interest, both during the processing of the permit application by the responsible authority and since proceedings were lodged with the Tribunal following the Council's decision to grant a permit for the proposal.
Following the withdrawal with leave of the Tribunal of several group applicants for review, and other procedural orders issued by the Tribunal over many months, the proceedings for determination are:
- (1) application P1142/2014, a group application for review of a Notice of Decision issued by the responsible authority to grant a permit for the proposal; and
- (2) application P1395/2014, a conditions review brought by the permit applicant regarding seven conditions included on the Notice of Decision issued by the responsible authority. The responsible authority and permit applicant reached agreement in relation to this proceeding during the hearing.
The case must be decided according to law and having regard to the relevant provisions, policies, and decision guidelines in the Planning and Environment Act 1987 (Vic) and the Greater Bendigo Planning Scheme, and having regard to any significant social effects and other relevant planning considerations. In reaching its decision, the Tribunal has also considered the many procedural issues raised by the group applicants.
In summary, the Tribunal found:
- (1) no evidence of procedural fairness being denied to the group applicants. Rather, the Tribunal has afforded the group applicants every opportunity to prepare and present their case including lengthy adjournments of the proceeding in order to obtain expert evidence;
- (2) no evidence of any significant social or other effects to the community as a result of the development and use of the mosque; and
- (3) on its planning assessment, the proposal is an acceptable outcome having regard to the location of the subject land and the suite of planning scheme policies and provisions that apply. It is a good location that, with main road frontages and its relationship to industrial land, will have limited off-site amenity impacts. Nearby residences, some of which are in the Industrial 3 Zone, will not be unreasonably affected by the proposed use and development.

[48]

On Tuesday 25 November 2014, Ms Hoskin filed a request for a Practice Day Hearing, setting out the orders sought from the Tribunal. The request was not made within the required time under Practice Day Request Practice Note PNPE6. The final hearing of the group application and the conditions application was due to start on 1 December 2014. The parties were advised by the President's Associate that there was insufficient time for the request to be heard before the commencement of the hearing, and that the request would be considered at the beginning of Day 1.
At the commencement of Day 1, no party raised any preliminary matters when given the opportunity to do so by the Tribunal. As is usual practice for proceedings in the Planning and Environment List of the Tribunal, following the opportunity for all parties to raise preliminary matters, the responsible authority commenced with its submissions and evidence. Later, Mr Balzola was critical of the Tribunal for failing to hear the Practice Day Hearing request at the commencement of the hearing, but there was no indication from Mr Balzola at the relevant time that he sought to pursue the Practice Day application at the outset. When asked by the Tribunal, he indicated that it was convenient to deal with Practice Day application matters as part of his main submission. On Day 2 of the hearing, when commencing his case, the concern was raised.
Submissions with respect to the matters raised in the Practice Day Hearing request were then made by the group applicants, to which other parties responded. The Tribunal makes findings on those matters in this decision.
The Tribunal does not consider that the manner in which these points were dealt with denied the group applicants procedural fairness. To the contrary, the points were fully, fairly and appropriately dealt with in the way they were. Procedural matters have been comprehensively addressed by the Tribunal as is evident from the findings that follow. The Tribunal has afforded the group applicants extensive opportunities to prepare and present a case, including allowing a substantial adjournment of the hearing for the filing of expert reports following completion of the responsible authority's case. The Tribunal considers that its approach has provided the group applicants with every opportunity to obtain expert and lay evidence and to thoroughly prepare and present their case as they wished to. In taking this approach, which was described by Mr Townshend QC as affording considerable latitude to the group applicants, the Tribunal took into account the submissions of Mr Balzola, and the evidence of Ms Hoskin, about difficulties in obtaining counsel and preparing evidence.

[50]

A third request for a Practice Day Hearing was received by the Tribunal on Friday 29 May 2015. In this request, the group applicants sought recusal of the President, that the matter be vacated and that a new panel be established to hear the proceeding de novo. The basis of this request was that the President had given instructions for two letters dated 13 March 2015 and 20 March 2015 sent by the Victorian Government Solicitor's Office ('VGSO') on behalf of the Tribunal. In fact, the President had not done so. Instructions had been given by the Principal Registrar to the VGSO in accordance with the decision of the Court of Appeal in R v Perkins and the Tribunal's guidelines relating to contempt proceedings.[6] A strict separation and clear demarcation had been maintained by the Principal Registrar between his role in possible contempt proceedings and that of judicial officers of the Tribunal in determining administrative review and contempt proceedings.
Following a Practice Day Hearing on 27 July 2015 at which submissions were made regarding the application for recusal, the President declined to recuse himself. The basis for the application was misconceived, as the President had had no knowledge of, or involvement whatsoever, in either the instructing of the VGSO by the Tribunal, or the two letters sent by the VGSO on behalf of the Tribunal. The President only became aware of the Tribunal's engagement of the VGSO and the two letters sent by the VGSO upon receiving the group applicants' application for recusal following his return from leave on 22 June 2015. It is not the role of the President, or any other judicial member of the Tribunal, to give instructions to the VGSO regarding possible contempt proceedings in the Tribunal.[7]
The President did not consider that a fair minded lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the questions that stand to be decided in these proceedings.[8] The Tribunal has given reasons for its decision separately.[9]

[51]

The joint listing of the two proceedings was not opposed by the group applicants prior to the lodging of the first Practice Day Hearing request. Subsequently, Mr Balzola criticised the joint conduct of the hearing of both proceedings as being inefficient, wasting time and resources for the group applicants who had elected not to be parties to the conditions application, and expressing concern about the potential for a costs order to be made against the group applicants in the conditions application. Further, he submitted that the outcome of the conditions application could materially change the proposal and, in the reverse, a successful group application would render the conditions application obsolete.
The Tribunal does not accept the submissions by the group applicants that the conduct of the proceedings concurrently resulted in the group applicants being forced to run a case without certainty as to the final conditions of the permit, as was Mr Balzola's submission in part. It is routine across the Planning and Environment List of the Tribunal, and entirely fair, for applications under ss 80 and 82 of the PE Act to be heard and determined during the same hearing. Both relate to the same permit application, and there is much common information, submissions, evidence and discussion. All parties should have an opportunity of hearing and contradicting this material. Concurrent hearings are much more efficient and cost effective for the parties, as well as expediting the hearing process. Such an approach is consistent with s 98(1)(d) of the VCAT Act, and ensures procedural fairness with each party informed of, and able to deal with, the evidence of each other party concerning the proposal.
Orders for the proceedings to be listed jointly were made on 15 September 2014. Objection to the conduct of the hearing in this manner was not raised until the first Practice Day request. The expert evidence called by the group applicants addressed the proposed conditions, and the group applicants were not in any way disadvantaged. In the event, the hearing of the conditions application was concluded at the end of Day 3 whilst the hearing of the group application continued until Day 6.
The Tribunal finds that there has not been any disadvantage or prejudice to the presentation of, or the consideration of, the merits of the group applicants' case. Nor does the agreement reached between the permit applicant and responsible authority seeking to resolve the conditions application result in permit conditions which are significantly different from those in the notice of decision. The changes to conditions that have been agreed upon are modest and do not transform the use or development described in the permit application.
Any question of apportionment of the cost of the proceedings will be addressed if and when a costs application is made.

[54]

A request to adjourn the hearing was made by the group applicants in November 2014. The request was opposed by the responsible authority and permit applicant. An order of the Tribunal dated 20 November 2014 declined the adjournment request, and set out the reasons for the Tribunal's decision.
On Day 2 of the hearing, Mr Balzola again sought an adjournment, submitting that the group applicants had not been given an opportunity to call rebuttal evidence. Ms Hoskin gave oral evidence about the difficulties she, and other group applicants, had experienced in approaching planners. She said some were not willing to participate in the proceeding because of the notoriety of the case. Ms Hoskin undertook, or indicated her intention, to provide expert evidence by the end of January 2015. In answers to questions from Mr Balzola, Ms Hoskin stated that she intended to obtain expert evidence in many disciplines - planning, traffic, geotechnical engineering, flora and fauna, and social and economic impacts (including relating to property values). It was also said that she understood two experts had been engaged but neither had given authority to be named. Mr Balzola made the same point in his submissions. On Day 3, Mr Balzola stated that it was intended to call planning and traffic experts, with the former to address social and economic matters.
The group applicants ultimately led evidence from a planner and a traffic engineer, but not from experts of any of the other disciplines mentioned by Ms Hoskin in her evidence.
It is a matter for each party as to how it wishes to present its case. Expert witness statements are required to be filed and served 10 business days prior to the hearing.[10] The responsible authority and permit applicant complied with this requirement in relation to the group application. It was incumbent on the group applicants to file and serve any expert evidence within the same timeframe, rather than waiting until the other parties served evidence and then seeking to obtain their own expert evidence. Ms Marcus pointed out that the group applicants had ample time to obtain expert evidence, as the group application had been filed with the Tribunal on 15 July 2014.
By order dated 1 December 2014, the Tribunal provided the group applicants a further substantial opportunity to file and serve expert evidence within the timeframe requested by Mr Balzola. This was despite the significant delay that this would cause to the other parties. That expert evidence has been received, heard, and the subject of cross-examination and submissions by other parties. The group applicants have been given every opportunity to prepare and present their case.
As to the Tribunal being an expert jurisdiction, Mr Balzola submitted the Tribunal should:

[57]

On 17 July 2014, Ms Evers, a separate applicant for review of the notice of decision not associated with the group applicants, sought a suppression order.[12] Mr Balzola was critical of the procedure adopted on this date, and the lack of legal representation for Ms Evers. Further, he submitted that the group applicants were invited to attend the hearing at 24 hours' notice. He claimed that the Tribunal did not act fairly in relation to the suppression order. Ms Hoskin's evidence referred to her grievances relating to the hearing on 17 July 2014.
The Tribunal finds that the hearing on 17 July 2014 concerned matters unrelated to the group application. The group applicants did not seek a suppression order. They were invited to attend so that they could be heard on Ms Evers' application if they wished to present submissions. Ms Evers subsequently withdrew her application for review with leave of the Tribunal. This did not involve the group applicants. During the hearing on 17 July 2014, the Tribunal invited submissions from Ms Hoskin. Ms Hoskin declined that invitation and did not raise any complaint or concern.
Applications for suppression orders under the Open Courts Act 2013 (Vic) should be brought on for hearing quickly, as explained in the reasons of Deputy President Dwyer dated 18 July 2014. The group applicants did not request a suppression order. The name under which the group application was made has been public information since the application for review was lodged by Ms Hoskin. Mr Balzola's submission was that some of the group applicants may have, and did, feel concerns in relation to the suppression order proceedings relating to the publication of their names and identities, because they feared reprisal. He further submitted that this 'has materially affected their effectiveness in the Tribunal proceedings'.[13]
It has not been shown that there has been any material effect. The Tribunal is aware that several group applicants have sought and been given leave to withdraw from the group application for reasons explained by Mr Balzola and Ms Hoskin during the hearings. The Tribunal has provided a full opportunity for all parties to present their submissions. The Tribunal finds that there is no evidence or other material to support the submission that the determination of the application by Ms Evers for suppression orders has resulted in a lack of fairness to the group applicants. Further, it is not the role of the Tribunal in hearing the group application to review orders earlier made in a different proceeding involving a different applicant for review who previously withdrew her proceeding having obtained leave from the Tribunal to do so.

[58]

It was argued by the group applicants that the Practice Day directions made on 15 August 2014 striking out some grounds contained within the original group application while they were not legally represented denied procedural and substantive fairness to the group applicants, and affected their capacity to be properly represented and heard. Both Mr White and Mr Balzola pressed this submission that the strike out order should be revoked.
The reasons for some grounds being struck out are set out in the order of the Tribunal dated 15 August 2014. These included the fact that a number of grounds addressed irrelevant considerations, or did not address matters arising under the PE Act, or were vague or not proper grounds for review. As was said at the time, such a ruling in the course of a Practice Day Hearing assists the group applicants, in that it identifies defects in the grounds then relied upon. It permits grounds to be revisited, redrawn or amended. The object was to identify for all parties the issues they have to meet and also to assist the objectors by clearly identifying for them the grounds upon which they might win, and give them focus in the preparation of their case. Later, at the merits hearing, a very wide range of matters were raised by the group applicants without any objection from the responsible authority or the permit applicant. They have all been received by the Tribunal, and are addressed in these reasons. There was no constraint on the matters raised by the group applicants at the hearing and ultimately no need for them to seek to expand or amend the grounds set out in the statement of grounds filed by them. However, it is self-evident from the Tribunal's reasons in this decision that a number of the struck out matters and many other matters were the subject of evidence and submissions by the group applicants and were fully ventilated before the Tribunal. The group applicants were legally represented throughout the merits hearing. All matters raised by the group applicants in written submissions or orally at the hearing have been addressed by the Tribunal regardless of the strikeout order. The Tribunal is satisfied that the group applicants and their legal representatives have not been restricted in any way in the wide ranging submissions and evidence that they have presented.

[61]

The permit application was signed by Mr Munshi Nawaz, a development planner, on behalf of the Tomkinson Group on 25 November 2013. Dr Issa Shaker, who is a member of the Bendigo Islamic Association, and its temporary Imam, was shown as the owner of the land the subject of the permit application. The permit application was accompanied by a submission by the Tomkinson Group which stated that the application was prepared on behalf of Australian Islamic Mission Inc. A register search also submitted with the permit application showed the registered proprietor of the subject land to be Robert Edward Plowright of RSD 2 Rohs Road, Bendigo East VIC 3550.
Subsequently, a second permit application dated 3 March 2014 was submitted to the responsible authority correctly showing Mr Robert Plowright as the owner of the land. The second permit application was not processed by the responsible authority.
When the applications for review came before the Tribunal, the name of the permit applicant was amended to Islamic Mission of Australia Inc. by order dated 18 July 2014 following a Practice Day Hearing conducted on the previous day. The name of the permit applicant was further corrected to Australian Islamic Mission Incorporated at a Practice Day Hearing conducted on 15 September 2014. The Tribunal has wide power to amend documents either on the application of a party or on its own initiative.[16]
Mr White and Mr Balzola submitted that the defect in the permit application in correctly identifying the owner, and in giving notice to the owner of the land under s 48(1)(b) of the PE Act, rendered the notice of decision invalid. They submitted that there were defects with respect to the permit application, and that the responsible authority should have voted on the second permit application. Ms Hoskin also commented on this matter, expressing concern that the identity of the permit applicant was unknown, and had changed without due reference to the group applicants.
The submissions have no substance. Clause 62 of sch 1 of the VCAT Act permits the Tribunal 'to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment', and 'in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so'. In Harvey v Mutsaers,[17] the Court of Appeal held that cl 62 is a power 'of considerable importance to the workings of the Tribunal and the members of the public whose disputes are heard and determined there'.[18] The power is a wide power, and 'extends to all forms of failure to comply with statutory requirements, regardless of effect'.[19] The power has been exercised in a very wide range of circumstances.[20]
The Practice Day order to amend the name of the permit applicant was made on 15 September 2014 in the context of the conditions application. The group applicants were not impeded in any way in presenting their case. They have not demonstrated any specific way in which they were prejudiced. They had long been aware of the true identity of the landowner. Mr Balzola's submission cited 'significant conflict issues'[21] but the nature of these issues were not particularised. The Tribunal is not persuaded that there has been any denial of natural justice or procedural fairness. Moreover, it is usual practice for the Tribunal to ensure that the name of a permit applicant is the correct entity, usually the owner of the land. As Ms Marcus noted, a planning permit runs with the land regardless of ownership, other than in exceptional circumstances when a permit may be personalised.
It is fair and in the interests of justice for the Tribunal to exercise its discretion in relation to the permit application in this proceeding. The Tribunal is not persuaded that any prejudice or disadvantage has been experienced by the group applicants. The identity of the permit applicant and owner of the subject land has been clear since September 2014. The proceeding has been conducted over six hearing days, separated by lengthy adjournments. Extended time has been made available to the group applicants to ensure that any possible disadvantage suffered by them is overcome. The nature of the use and development sought is clear and has been clear from the outset. It is in the interests of justice to disregard any failure associated with the application form or application procedure.

[138]

The responsible authority and permit applicant submitted that the rights conferred by the Charter are required to be considered by the responsible authority as a public authority under s 4(1)(e) of the Charter. Ms Marcus submitted that the responsible authority has had regard to the right to freedom of religion and belief that is engaged in this permit application. While, in the Council's view, there was no substantiated adverse social impact, Ms Marcus submitted that refusing the permit on the basis of social impacts would amount to an unreasonable limit on the rights of both individuals and the Muslim community to freedom of thought, religion and belief under ss 14(1)(b) and 19(1).
Mr Townshend QC agreed with Ms Marcus that under s 38(1) of the Charter, public authorities are obliged to act compatibly with human rights and, in making a decision, to give proper attention to a relevant human right. He also agreed that in acting in its administrative capacity under the PE Act, the responsible authority is a public authority under s 4(1)(e). Consequently, the Tribunal must give proper consideration to relevant human rights and, even if this was not the case, the Charter could be relevant under s 60 of the PE Act. The relevant rights include the right to freedom of religion (including worship) and the right to practice religion.[29] It was not contended that the permit applicant has human rights, as it was accepted that the permit applicant as a corporation is not a person within the meaning of s 6(1) of the Charter.
Mr Balzola disagreed with the responsible authority and permit applicant. He submitted that under s 6 of the Charter, only human beings have human rights. He submitted that as neither the responsible authority nor the permit applicant are human beings, the Tribunal should not fall into the temptation of affording vicarious human rights recognition to persons who are not the subject of these proceedings. He submitted that the Planning and Environment List of the Tribunal was not the proper forum to recognise human rights where the party to the proceedings is a body corporate.
In Castles v Secretary, Department of Justice,[30] Emerton J set out the task of a public authority under s 38(1) of the Charter:

[212]

Furthermore, the 'significant social and economic effects' to which consideration may have to be given pursuant to s 60(1A)(a) of the Planning Act are not the same as 'social impacts' that must be identified and weighed in satisfying the 'no net detriment' test in the Gambling Act, although they may in some cases coincide or overlap. Social impacts are impacts affecting the wellbeing of the community of the municipal district in which the gaming machines are to be located. They are therefore localised, and related to a particular activity which is recognised as having a potentially damaging effect on a section of the community. In contrast, the 'significant social and economic effects' in s 60(1A)(a) of the Planning Act may be assessed by reference to a much larger community or geographic area. The sweep of relevant considerations under the Planning Act is broad: under the State planning policy framework decision-making must endeavour to integrate the range of policies relevant to the permission sought and balance conflicting objectives in favour of 'net community benefit and sustainable development for the benefit of present and future generations'. In a planning appeal, the Tribunal may be called upon to assess more generally the social effects of a proposal, having regard to such matters as adopted strategic plans, policy statements, codes and guidelines, as well as any relevant State environment protection policies. A refusal to allow an intensive development in one area may have a positive social impact in the immediate neighbourhood (for example, by retaining the low density character of the neighbourhood) but may generate less desirable planning outcomes in other areas with significant adverse economic and social consequences for other communities and, potentially, for the State as a whole. Ultimately, it is a matter for the Tribunal to determine the geographic area or community for the consideration of social impacts or effects, having regard to all relevant matters.[54]

[226]

The Tribunal does not consider that the extent of concern and issues identified should have caused a permit to be refused by the responsible authority, or that the permit application should be remitted by the Tribunal back to the responsible authority because the responsible authority did not consider the social impact issues raised to be significant or to justify further investigation. While the Tribunal is cognisant that fears and concerns are held by the group applicants, they have produced no expert evidence and very little material of any type to support the assertions that they make. If there were the types of impacts associated with mosques as submitted by the group applicants, and there are numerous mosques in Australia, then there would be evidence of those impacts available for the group applicants to rely upon. The Tribunal has considered the submissions making brief reference to other cities in which mosques have been built, in which significant impacts have been asserted. However, no evidence or material has been put before the Tribunal which provides a proper basis to establish any similar or likely causal links to the proposal relating to the subject land in these proceedings. The Tribunal accepts the position in Rutherford that it is a matter for the group applicants to provide evidence of the existence of the social impacts submitted. Mere assertion that there will be a concentration of people of the Islamic faith around the subject land following the building of a mosque, or that the facility will expand in the future, does not demonstrate significant adverse social effects. The objections on the basis of adverse social effects fail for want of proof. In the absence of evidence, and having regard to the State and local policy encouraging cultural facilities, the group applicants have not established significant adverse social effects or any net adverse social impact. The group applicants have failed to provide any evidence to satisfy the Tribunal that their social impact concerns are warranted.

[227]

The Tribunal has already stated that it has not been presented with evidence or submissions with any substance as to what the consequences of the fears and assertions would be with respect to the proposed mosque, and its ancillary components, at the subject land. There is no evidence of abuse, harassment, intimidation, or loss of wellbeing or social cohesion associated with the operation of the existing places of Islamic worship in Bendigo, or in any other location in Victoria or beyond. Mr White's reference to cities such as Bradford and Lakemba were not substantiated with any documents or material of any type, and there was no identified specific link with this permit application.
As has already been said, the subject land is located in an industrial zone, and is surrounded by roads on three sides. While there is a mix of residential and non-residential properties in the general vicinity of the subject land, the subject land is well separated from the main residential areas and activity centres of Bendigo. In the Tribunal's view, there is little (if any) prospect, having regard to the site, its size, the road pattern, nearby industrial development and the site's location remote from the principal residential areas and activity centres of Bendigo, that it will experience the variety of concerns advanced by the group applicants. In the Tribunal's view, these are overstated and unfounded.
As will be discussed later in these reasons, there is no known proposal for an expansion of facilities in this location, submitted by the group applicants as being the creation of an 'enclave'. Any future proposal, should it be made, would be considered on its own merits. The presence of the link road will affect the contiguity of land and the prospect of any road connection to the new link road is most unlikely. The subject land will therefore in all likelihood be isolated from land to the west of the link road and, moreover, a rezoning would potentially be required for any uses such as a primary or secondary school. The speculation of the group applicants associated with growth of Islamic education or other facilities is not persuasive and does not have relevance to the decision this Tribunal must make in this proceeding.

[242]

There is plainly no transformation of the proposal and most of the original conditions in the notice of decision made by the responsible authority are retained. The retention of existing restrictions, and the imposition of further restrictions, responds to the grounds upon which the respondents to the conditions application before the Tribunal have sought to resist the permit applicant's review of permit conditions.
The agreement has removed several conditions that were not appropriate for inclusion on a planning permit, including alternative access to the link road (Condition 27 of the notice of decision) and restrictions on political discussions or campaigns occurring on the land (Condition 28 of the notice of decision).
Condition 27 was not appropriate because VicRoads opposes any access to the new ring road for the subject land, as explained by Mr Cybula. This is the normal position with respect to a new arterial road. The roads authority typically discourages new access points when there is an alternative, as is the case here. Mr Cybula explained the safety rationale for this approach. The Tribunal accepts this position.
The submission that access to the link road is necessary because of unacceptable traffic impacts for residents is not borne out in the expert evidence, as discussed later in these reasons. Some parties in the conditions application refer to the closure of Rowena Street as a fire risk. This has not been substantiated by any evidence. The Tribunal does not consider this concern outweighs the safety issues relating to access being made to the link road. The building permit process will include consideration of fire safety.
Condition 28 was not appropriate for several reasons. This condition would have been difficult to enforce, and would place restrictions on freedom of speech. The grounds relied upon by third parties in the conditions application seeking retention of Condition 28 were wide-ranging, and included issues relating to security, the suggestion that the mosque will be a recruiting ground, and the suggested incompatibility of political Islam with the Australian Constitution. None of these grounds have been substantiated. The Tribunal accepts the position of the responsible authority and permit applicant. No good reason was advanced why Condition 28 should be retained in a planning permit.

[243]

The size of the proposed facility was criticised by the group applicants as being able to accommodate a larger capacity than suggested by the reports accompanying the permit application. There was criticism of the basis for the proposed attendance limit of 375 persons and submissions were made that the figure is insufficiently explained, wrongly founded and inconsistently applied.
It is true that the proposed development might be able to physically fit more than 375 people when taking into account the size of the spaces, building regulations and the sports hall. That is not, however, what is proposed or sought by the permit applicant. The permit conditions cap the number of people on the site to 150 at all times except for the two days per annum for Eid prayers and daytime prayer on Fridays where the cap is 375 persons. Use of the sports hall is not permitted to coincide with the use of the mosque for prayers. These limits are linked to car parking provisions, addressed later in these reasons. The proposed provision for car parking exceeds the number of spaces required by the planning scheme. No dispensation of car parking is needed by the permit applicant. The proposal complies with the parking standards of the planning scheme.
The size of the proposed facility was also questioned by the group applicants on the basis that it is intended to be an attractor. That is, it will create a demand and bring more Muslims into Bendigo. In her expert evidence, Ms Peterson agreed that the proposal would be likely to attract more people in time as the population of Bendigo grows. She referred to the lack of any purpose-built mosque facilities currently in Bendigo and, based on the current typical attendances, considered that it will be many years before peak patronage of 375 persons on the site is reached.
The group applicants' concerns regarding capacity and patronage should be considered in perspective. Currently, the permit applicant has a contact list of between 120-150 families across 25 different nationalities, based on Mr Townshend QC's submission, providing for all streams of the Islamic faith. Growth is said to be occurring at a rate of 15-20 families per year.[57] Current regular attendance at the prayer room made available by LaTrobe University at the Bendigo campus is not large, and is said to be around 13-25 persons.[58]
As a matter of principle, it is entirely appropriate for a major regional city such as Bendigo, which welcomes all faiths and nationalities, to have a purpose-built mosque. That is the case even though there might be people who come to Bendigo for that reason alone. The Muslim population associated with the permit application is not large when considered in the context of an estimated 2013 population of Greater Bendigo of over 100,000 people, and a projected 2030 population of 143,685.[59] The Muslim population, as well as that of other faiths, will grow as a result of a number of factors - particularly population growth and not merely as a result of access to a place of worship.

[257]

It was not contended or argued that the proposed use and development would have negative impacts on nearby businesses or industries.
The responsible authority and permit applicant, through the evidence of Mr McGurn and Ms Peterson, submitted that it might be better to find a more central location for the proposed use but there are difficulties with this suggestion, in terms of suitable, large and affordable sites. It was submitted that it is not essential for this type of use to be located in an activity centre. Further, it was submitted that the subject land has difficulties with respect to its potential for industrial use, due to its topography, the presence and extent of native vegetation, the proximity of dwellings, and the new link road which will fragment the industrial area leaving the subject land, as well as two other lots, surrounded by roads and detached from the main industrial precinct. The responsible authority and permit applicant argued that the proposal accords with the purpose of the IN3 Zone to serve as a buffer between the main IN1 Zone, and the LDRZ. Moreover, it was contended that the subject land is located on the periphery of the industrial area, within the established urban area, and is based around an existing and planned industrial precinct to maximise accessibility to facilities and services.
The IN3 Zone does not have the same purpose as, by way of example, the General Residential Zone with respect to providing for non-residential uses that serve local needs. A facility with a regional draw can be a suitable use in this zone, subject to an assessment of the specifics relating to the proposal and the location.
The Tribunal finds that the expert evidence of the group applicants, suggesting that a better location could be found, is a possibility rather than a fundamental failing or lack of suitability of the subject land for the proposed use. The Tribunal accepts the submissions and evidence for the responsible authority and permit applicant that the subject land is well suited for the proposed use and development.
It is true that there are benefits associated with a location that offers public transport as a realistic option for patrons (which the subject land does not). It is also accepted that State policy would prefer such a location for cultural and community facilities. There are, however, some constraints associated with activity centres, such as the ability to find or consolidate a sufficiently large property and, where houses in a residential zone are close, potential amenity issues.
The Tribunal agrees that there will be a reliance on private vehicles. The times at which some prayers occur (such as early morning) means that public transport is unlikely to be a primary form of access for such occasions anyway. However, it is relevant that the subject land is readily accessible by major roads, and avoids local streets that service only residential properties. This is an important factor given that the hours of operation are suitable for an industrial area. The subject land is at the edge of the industrial area and has the benefit of being separated from most dwellings by roads.
The development is able to be sited so that it has deep setbacks from those roads and, with the fragmentation of the IN3 Zone by the link road, the discrete lot is well suited to a use that is sufficiently compatible with industries and dwellings that are at some distance from the mosque and sports hall.
Rowena Street is not a residential street. It abuts land within a LDRZ and land within an IN3 Zone. Much of the northern side of the street, opposite the subject land, is a nursery. Other road access options are not available to the subject land. VicRoads will not agree to the link road providing access, and the narrow frontage to Rohs Road is at a bend in that road. The Tribunal does not accept the submission that Rowena Street is a less than optimal outcome for access, and instead accepts the evidence of Ms Dunstan and the position of VicRoads that the proposed access is acceptable.

[272]

Mr Townshend QC submitted that dwellings within and adjacent to the industrially zoned land cannot have the same amenity expectations as dwellings surrounded by, and within, residential zones. The Tribunal notes that this does not suggest that amenity impacts are not relevant, rather that reasonable amenity expectations must be assessed in that context.
Mr McGurn and Ms Peterson did not regard the proposal as creating unacceptable off-site amenity impacts. Ms Peterson stated that traffic movements, a broader range of hours of operation and some noise and activity emanating from the site are, in her opinion, reasonable outcomes given the zoning of the land, and one of the reasons why larger scale places of worship locate in lower order industrial precincts rather than in residential areas. Ms Peterson described distances to the nearest dwellings, demonstrating separation between the proposed activities on the land and these residential properties. A cap on hours of operation and patron numbers limits impacts off-site. It was also stressed on behalf of the permit applicant that there would be no audible call to prayer, as messages are sent electronically and the prayer timetable is published a year in advance. In addition, the typical day-to-day operation of the mosque, with typical attendance for daily prayers (five times each day) would be modest in number (13-25 people), with larger events restricted to Friday prayer (up to 375 people) and Ramadan morning prayer twice a year (375 people). Ms Peterson observed that it will take some years for the mosque and Islamic Centre to reach these maximum capacities.
The Tribunal considers that amenity impacts were properly assessed by the responsible authority. They have again been reviewed during these proceedings.
The Tribunal accepts the principles upon which the responsible authority and permit applicant have proceeded. Amenity expectations in this location must be tempered by the zoning and physical characteristics. Although there is a dwelling immediately to the east, at 5 Rowena Street, that dwelling is within the IN3 Zone and is now protected through existing use rights. No new dwellings are permitted in the IN3 Zone. Two dwellings are opposite the subject land within the LDRZ. One abuts a nursery and the side of the other presents to Rowena Street. Other dwellings are further north, with the LDRZ fronting Rohs Road, or on the east side of Rohs Road (a Road Zone 1) within the IN1 Zone or LDRZ. Although there are dwellings proximate to the subject land, their amenity expectations must be assessed in terms of their relationship with the main road and proximity to, or location within, industrially-zoned land. Constraints on future development in the LDRZ mean that this area will not experience a substantial increase in housing at standard sized lots unless there is a change in strategic direction. While the land is zoned LDRZ, there is not a prospect of considerable increases in the number of dwellings in the environs of the subject land.
The Tribunal accepts Ms Peterson's assessment that the activity associated with the proposed use will not have a substantial effect in this setting in terms of noise, traffic or visual impact, particularly having regard to the cap on patronage. With regards to headlights and traffic noise affecting dwellings, the main concern is 14 Rowena Street, which is close to the proposed vehicle access. There is some vegetation that would assist to filter vehicle headlights, but that would not mask all night-time headlights. This dwelling appears to be associated with the nursery. There has been no objection received by the responsible authority or the Tribunal from the property owner or occupier. Based on the traffic volumes calculated in Ms Dunstan's evidence, the Tribunal does not regard the number of vehicle movements associated with 150 people on-site into the evening as unacceptable, noting that trucks and heavy vehicles would not be expected. Higher volumes of up to 375 persons at Friday prayers would be during the daytime when there is less likelihood of unacceptable impacts. Twice a year patronage of 375 persons for Eid prayers can be likened to festivals drawing large numbers in other religions, such as Easter and Christmas, where higher volumes are accepted as occurring and are not a reason to refuse a planning permit.
Given the separation from other dwellings in the LDRZ, potential impacts are considered to be limited and acceptable because:

[280]

The group applicants contend that there is insufficient car parking for the proposed use. Relying on the evidence of Mr Shoobridge, the group applicants argued that the demand for parking will be much higher than the assumptions upon which the car parking has been provided (0.3 spaces per patron) because more people will drive on their own, without family groups and passengers. The contended main time period of concern was Friday prayers when, because it was argued that the demand is understated, there will therefore be an overflow of parking in Rowena Street and other streets that will give rise to safety issues. Mr Shoobridge said a travel management plan is required to ensure that no more cars attend than there are spaces for on-site. These concerns were echoed by Mr Tesdorpf. Mr Tesdorpf also referred to the separate use of the sports hall and café and said the additional cars associated with these facilities had not been addressed. Mr White added that there was the potential for guest speakers to attract very large numbers of people.
Mr Tesdorpf and Mr Shoobridge acknowledged that the parking proposed on-site meets and exceeds the rate required by the planning scheme for a place of worship. They also acknowledged the cap of 375 people, but submitted that it is unlikely that people would be turned away. Mr Shoobridge referred to the objectives and car parking demand assessment provisions in cl 52.06 in support of his opinion that more car parking should be provided on-site.
The Tribunal notes that it is common ground in expert evidence that the statutory parking rate is met and exceeded for a place of assembly (including a place of worship) under the table to cl 52.06. No parking reduction or waiver is sought for the place of worship. 19 additional parking spaces are provided over and above the number that the statutory scheme requires, having regard to the minimum calculable figure based on capped patronage. A limit of 150 people on-site will apply other than for Friday and Eid prayers, and as previously noted, use of the sports hall will not coincide with prayers occurring.
The Tribunal does not accept the group applicants' contentions regarding an under-supply of parking. There is no prescribed parking requirement for the ancillary uses - minor indoor sports and recreation facility (sports hall) and a caretaker's dwelling. The provision of parking is to the satisfaction of the responsible authority. The permit applicant does not seek any reduction in car parking.
The car parking arguments relied upon by the group applicants have no valid basis. The responsible authority accepts the car parking demand assessment provided by the permit applicant, as does the Tribunal. Moreover, on Ms Dunstan's evidence, there is little likelihood of overflow parking (which is nonetheless provided for on-site). The Tribunal accepts Mr Townshend QC's and Ms Marcus' submissions that the proposal has adequate parking and complies with car parking requirements under the planning scheme.

[281]

The group applicants were critical of the likely impacts of the proposal on traffic using Rohs Road and Rowena Street. The group applicants were critical of the assumptions in the Cardno traffic report accompanying the permit application. They submitted that there were flaws in the Cardno report that affected the estimate of traffic volumes at the intersection of Rowena Street and Rohs Road. Mr Shoobridge gave evidence that more cars will attend the subject land than has been calculated through the application of cl 52.06 for parking, and that this will impact on the operation of the intersection of Rowena Street and Rohs Road, causing delays. Mr Shoobridge did not undertake a traffic impact assessment of the intersection, but was critical of a failure to consider future traffic growth on the road network.
VicRoads agreed with the responsible authority and permit applicant that intersection works are required to Rohs Road and Rowena Street. VicRoads initially calculated the intersection treatment based on a potential cap of 375 persons at all times, rather than the cap of 150 persons at all times other than Friday and Eid prayers. This was the subject of discussion within Ms Dunstan's evidence.
The agreed permit conditions cap the number of people on-site to 150, other than for Friday prayers and Eid. Given the cap of 150 people on-site, Mr Shoobridge and Ms Dunstan agreed that traffic on Rowena Street, other roads, and the operation of the Rohs Road and Rowena Street intersection, are all acceptable. The twice yearly Eid prayers were not contended to be an issue, on the basis that these are isolated special events. Such events are not a basis upon which traffic works are designed and installed.
The remaining difference is focused on attendance at Friday prayers. Ms Dunstan's evidence was that she had actually undertaken the assessment recommended by Mr Shoobridge in relation to the performance of the Rohs Road and Rowena Street intersection. Ms Dunstan explained how her evidence differed from the findings of the Cardno report, including the time periods over which traffic peaks would occur. Ms Dunstan categorised her analysis as being very conservative because Rowena Street will be closed and Rohs Road is likely to carry less traffic once the full link road is open. Effectively, she said, her analysis allows for future growth because it is based on current flows that will fall in the short term following the opening of the link road.
The extent of intersection treatment works is specified in the modified permit conditions. The Tribunal is satisfied with the proposed treatment which will, on the expert evidence and analysis of Ms Dunstan, accommodate traffic associated with Friday prayers based on a capacity cap of 375 persons. As already observed, the prospect of routinely reaching this number of worshippers on a Friday in the short and medium term is low. The works will benefit other road users by providing space for cars to pass a vehicle waiting to turn right into Rowena Street and intersection flaring for cars waiting to turn out of Rowena Street. The permit applicant has consented to undertake the works. The Tribunal considers the proposed intersection treatment is appropriate and acceptable.

[287]

Clause 10.04 of the planning scheme requires the decision maker to integrate a range of relevant policies, and balance conflicting objectives, in favour of net community benefit and sustainable development for the benefit of present and future generations.[70]
The Tribunal has carefully considered all of the grounds relied upon by the group applicants in this proceeding. For the reasons set out above, the Tribunal is not persuaded that the responsible authority's decision to grant a permit should be set aside, or that changes are required to the conditions agreed upon between the responsible authority and the permit applicant.
The proposal will provide a place of worship and associated facilities that will serve the Muslim community of Greater Bendigo. It is reasonable for a purpose-built facility to be available on a suitably located site. There is no such place of worship currently available to those practising Islam in the region. The subject land is assessed as a good site for the mosque given its locational and physical contexts. Ancillary facilities will be available to others in the community within the restrictions imposed by the permit conditions, notably the sports hall, which would potentially benefit others in the community who are not of the Muslim faith.
The proposed development will bring change to the physical appearance of the locality. It may have some impacts on the environs of the subject land, notably in terms of increased traffic movement. Having regard to the physical and strategic planning contexts that apply to this proposal in this location, including the main road abuttals and limited interface with land within a residential zone, the Tribunal is satisfied that the impacts are acceptable within the parameters set by the zoning, policies and expectations of the planning scheme. The design, landscape and built form outcomes are all acceptable, as are potential amenity impacts subject to the permit conditions restricting the use based on patron numbers and hours of operation.
Alleged social, economic and environmental impacts have not been demonstrated as being significant or likely with respect to the proposed mosque and ancillary uses at the subject land.

At a glance

Court

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Before

Source

Judgment (390 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (8)

Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124 (6 August 2015)