instructed by Robert Balzola and Associates, Solicitors

9 Rowena Street, Bendigo East VIC 3550 ('the subject land').

The subject land is approximately 2.07 hectares in area, and is irregularly shaped, and located on the south side of Rowena Street. It fronts a bend in Rohs Road and Strathdale-White Hills Road. There are variable heights across the site with a fall overall of some 6 metres to the eastern boundary. The land is vegetated in patches with some scattered trees.

It is proposed to use and develop the subject land as a place of assembly. This comprises a place of worship (mosque), separate sports hall, a caretaker's dwelling, and associated facilities such as an office, education room, shop and café.

The staged development comprises two prayer halls, domed courtyard, and minaret tower. The buildings are centrally located on the land with ground level car parking for 131 vehicles. Vegetation removal is required. Trees abutting the road frontages would be retained. Revegetation is proposed as shown on a landscape plan.

P1142/2014 is an application by the group applicants under s 82 of the Planning and Environment Act 1987 (Vic) ('the PE Act') to review a decision to grant a permit.

P1395/2014 is an application by the permit applicant under s 80 of the PE Act to review Conditions 1, 3, 6, 7, 27, 28 & 30 in the Notice of Decision to Grant a Permit ('notice of decision').

Mr P Tesdorpf (town planner), Mr G Shoobridge (traffic engineer), and Ms J Hoskin (lay witness).

Mr S McGurn (town planner) and Ms C Dunstan (traffic engineer).

Ms C Peterson (town planner). The lay witness statement of Mr H Febriyanto (secretary for the permit applicant) was received as a submission.

Rohs Road/Strathdale-White Hills Road is a road in a Road Zone Category 1.

Clause 33.03-1 - to use the land for a place of assembly/place of worship, sports centre (minor indoor sports and recreation facility) and caretaker's dwelling.

Clause 33.03-4 - to construct a building and carry out works for section 2 uses.

Clauses 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22.05, 52.06, 52.07, 52.34, 52.29 and 65 of the Greater Bendigo Planning Scheme ('planning scheme').

The practice of VCAT is to designate cases of interest as 'Red Dot Decisions'. A summary is published and the reasons why the decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part of the decision or reasons for decision.

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

Use and develop the subject land as a place of assembly. This comprises a place of worship (mosque), separate sports hall and associated facilities.

Legal representation [18]-[20]; Recusal [27]-[29]; Validity of the permit application [52]-[59]; Charter of Human Rights and Responsibilities Act 2006 (Vic) [92]-[105]; Social impacts [106]-[115]; Social impact assessment [125]-[134]; Need [154]-[157]; Industrial Zone 3 [168]-[175]; Economic impacts [184]-[185].

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

Consideration of a wide range of procedural matters raised by the group applicants alleging denial of procedural fairness and impacts on human rights.

LEGISLATION - interpretation or application of statutory provision

Consideration of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Assessment of social impact under the Planning and Environment Act 1987 (Vic).

POLICY - interpretation or application of policy

Consideration of arguments alleging social impacts and a lack of assessment of this matter.

General consideration of the place of worship in terms of the purpose of the Industrial 3 Zone; traffic impacts; land use compatibility; and related issues.

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

The application has generated a high level of public interest about the proposal for a mosque in Bendigo.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. The proposal is for a mosque and associated facilities to be established in Bendigo East. The application was made to the Greater Bendigo City Council ('responsible authority') and was designated application number DP/937/2013 ('permit application'). The responsible authority decided to grant a permit for the proposal.
2. There are two proceedings for determination by the Tribunal:

(1) P1142/2014 ('group application') is an application for review by the group applicants of the notice of decision issued by the responsible authority; and

(2) P1395/2014 ('conditions application') is an application for review brought by the Australian Islamic Mission Incorporated ('permit applicant') for review of seven conditions included on the notice of decision issued by the responsible authority.

1. Initially, there were sixteen group applicants represented by Ms Hoskin who were parties to the group application. Following the withdrawal of some of the group applicants by leave of the Tribunal, eleven group applicants remain parties to the group application. They have not filed statements of grounds (and are therefore not parties) to the conditions application.
2. A number of other objectors unrelated to the group applicants have filed statements of grounds in the conditions application.[1] None have sought to be heard at any of the hearing dates beyond their statements of grounds, which are held on the Tribunal's file, and have been taken into consideration.

1. The hearing was conducted in three parts.
2. The first three days comprised submissions and evidence for the responsible authority, and submissions for the group applicants. At this point, the Tribunal adjourned the hearing to enable the group applicants the opportunity to file and serve expert evidence, in accordance with the Tribunal's order dated 1 December 2014.
3. At the conclusion of Day 3, the Tribunal was advised that the responsible authority and the permit applicant had reached an agreement regarding the conditions application. As no other party appeared in the conditions application, or sought to be heard in addition to their statements of grounds, the conditions application was adjourned at the conclusion of Day 3 for a final decision by the Tribunal.
4. The hearing of the group application continued on Days 4 and 5 after expert evidence was filed and served by the group applicants. The responsible authority recalled Ms Dunstan, and also presented submissions in response to the expert evidence and affidavit material relied upon by the group applicants.
5. The hearing of the group application was completed on Day 6 when the permit applicant's case and evidence were heard. The Tribunal then reserved its decision.
6. Subsequently, the group applicants made an application for the President to recuse himself at a Practice Day Hearing. The President declined to do so as set out later in these reasons.

1. The Tribunal's assessment of this permit application has considered all of the grounds and issues raised by the parties. These reasons address all of the matters raised in submissions, evidence and statement of grounds under the following headings:

(1) procedural matters raised in submissions for the group applicants, and in the evidence and affidavit of Ms Hoskin;

(2) overview of the proposal, the subject land, and its setting;

(3) the legislative framework within which the decision in both proceedings must be made;

(4) submissions relating to social and economic effects of the proposal;

(5) submissions and evidence relating to planning issues;

1. A significant part of the group applicants' case focused on procedural matters. It is appropriate for these matters to be given detailed attention. The Tribunal has a duty of fairness to all parties. The Tribunal takes its obligations under ss 97 and 98(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act') and under its Fair Hearing Practice Note PNPE3 very seriously. It seeks to ensure that all parties receive a fair hearing and that all parties and their representatives are treated with courtesy and respect.
2. The group applicants' submissions commenced on Day 2. Mr Balzola raised a series of issues and concerns with respect to the conduct of the hearing generally, with the common theme that the group applicants had been denied procedural fairness by the Tribunal or had been prejudiced or disadvantaged in preparing for and presenting their case. These submissions were reiterated on a number of occasions during the hearing.
3. While frequently submitting that there had been disadvantage, there has been little or no substantiation by the group applicants of what the disadvantage has been and how it is said to have adversely affected their capacity to present their case at the Tribunal, even after a lengthy adjournment was granted for them to obtain expert evidence, and better prepare their case.
4. In an administrative review proceeding, the Tribunal undertakes a merits review of the decision of the responsible authority.[2] The Tribunal stands in the shoes of the responsible authority and ultimately determines such an application on the submissions and evidence presented to the Tribunal.[3] The Tribunal must consider relevant matters but it also must not have regard to, or place weight on, irrelevant considerations.
5. In accordance with s 107(1) of the VCAT Act, questions of law arising in these proceedings have been decided by the President.

1. Mr Balzola's concerns were wide ranging, but in summary he made the following submissions regarding the conduct of the hearing by the Tribunal:

... the degree of media sensitivity as led into evidence, and the sensationalising of the matter in the media to the point of causing serious detraction of would be objectors coming forward to participate and submit what is naturally in their minds against the development, with the effect of suppressing the quantitative and qualitative nature of the objections against the permit ... the Tribunal has not acted with fairness in conformance with its statutory obligation ... by ensuring parties have proportionate legal representation.[4]

1. Parties before the Tribunal do not have an automatic right to legal representation at the Tribunal, but must obtain leave under s 62 of the VCAT Act in order to be represented by a professional advocate. Each party to a proceeding must decide whether they seek to be represented by somebody else, such as a family member, planner, or lawyer.[5] Many appear at the Tribunal in person and explain and argue their case successfully.
2. It is not the role of the Tribunal to direct what representation a party should have. As is common in a significant case such as the current one, all parties appearing at the substantive merits hearing commencing on 1 December 2014 have obtained and relied on legal representation. The group applicants have been represented by counsel and a very experienced solicitor at different times during the hearing. The Tribunal has afforded the group applicants many opportunities, including a substantial adjournment to prepare and supplement their case with expert evidence and further written submissions. In doing so, the Tribunal has responded to the various difficulties and concerns raised by the group applicants and given them every opportunity to fully prepare and present their case.
3. Each party must decide whether and how to participate in the process afforded by the PE Act with respect to a planning permit application. Whether or not there are, or would be in different circumstances, other 'would be objectors' is speculative and does not assist in the merits decision which the Tribunal is bound to make. In making a decision, the Tribunal is bound to consider the evidence and material before it, and the submissions made to it in the proceeding.

1. 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.
2. 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.
3. 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.
4. 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.

1. A second request for a Practice Day Hearing was received on Friday 8 May 2015. In this request, the group applicants said that the failure to receive a transcript fundamentally impeded their ability to prepare for the hearing. An adjournment was requested. The Tribunal was not provided with any specific reasons as to how or why their capacity to prepare had been detrimentally affected, given that legal representation had been present throughout the previous hearings. Ultimately, the adjournment request was not pursued by Mr Balzola following receipt of the transcript.
2. No party made arrangements to obtain a running transcript of the hearing. All parties were content to obtain CDs or transcripts from the Tribunal's own recording system through a commercial supplier when needed, with inevitably some delays having regard to the Tribunal's limited resources and the need to co-ordinate with the private supplier.

1. 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.
2. 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]
3. 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]

1. 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.
2. 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.
3. 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.
4. 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.
5. Any question of apportionment of the cost of the proceedings will be addressed if and when a costs application is made.

1. Mr Balzola submitted that the statements of expert evidence filed by the respondents were filed out of time, causing the group applicants disadvantage. While the statements of expert evidence in question were filed towards the end of the time frame allowed by the Tribunal under Expert Evidence Practice Note PNVCAT2 ('PNVCAT2'), nonetheless, they were filed and served within time. The permit applicant and the responsible authority complied with the requirements of PNVCAT2.
2. It should be noted that some of the material filed and served by the group applicants following the Tribunal's order dated 1 December 2014 was filed out of time. Neither the responsible authority nor the permit applicant objected to the receipt of this evidence by the Tribunal despite late service by the group applicants.

Insufficient opportunity to call expert evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. As to the Tribunal being an expert jurisdiction, Mr Balzola submitted the Tribunal should:

...require without exception expert reports and experts in order to adduce the questions of fact and law that pertain to the legal questions ... self-represented parties would have little chance in advocating their cause in a designated complex matter of expert jurisdiction.[11]

1. The Tribunal does not accept the premise of this submission. The Tribunal is an expert body and able to utilise its expertise to ensure that it has all the information and material required to make a decision, and that it has fairly ventilated all relevant issues with the parties. Many cases heard and determined by this Tribunal do not involve expert evidence in rebuttal to another party. It ought not be assumed, in such a case, that the sole party that has called expert evidence will succeed.
2. Many proceedings at the Tribunal involve self-represented parties who ably advance their cases and often succeed in their applications. The Tribunal has a long history of ensuring that it is accessible to self-represented persons who appear, present submissions, and have their grounds independently assessed by the Tribunal with expertise relevant to the matters in dispute. Section 98(1)(c) of the VCAT Act states that the Tribunal may inform itself as it sees fit. The Tribunal is not bound by statute or common law to accept any or all of the expert evidence presented.

1. 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.
2. 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.
3. 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]
4. 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.

1. 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.
2. 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.

1. Mr Balzola argued that the proceeding should be declared void and should be recommenced afresh because cl 15(a) of Common Procedures Practice Note PNVCAT1[14], regarding communication with parties to proceedings, had been breached. This was not the case, as the material in question was served on the group applicants' representative as shown on the Tribunal file. Mr Balzola's office is in New South Wales and is out of the Tribunal's jurisdiction. It is not the address for service.[15]
2. The Tribunal explained that material is served on the named representative on the Tribunal's file. The named representative of the group applicants was Ms Hoskin, who provided her email and street addresses. Mr Balzola submitted that it would be a courtesy to provide the material to him. It is a matter between Mr Balzola and his client as to how communications are transmitted between them. The Tribunal does not find any defect that gives rise to a denial of procedural fairness.

Allegations of procedural defects in processing the permit application

1. 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.
2. 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.
3. 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]
4. 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.
5. 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]
6. 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.
7. 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.

Allegations of conflict of interest by the Council

1. A number of serious, unsubstantiated allegations regarding conflicts of interest by some Councillors deciding upon the permit application were made by Ms Hoskin in her evidence and by Mr Balzola in his submissions.
2. These allegations are not relevant to the decision that the Tribunal is required to make with respect to the merits of this permit application. Planning merits have been assessed by the Tribunal independently and having regard to the requirements of the PE Act and the planning scheme. The Tribunal stands in the shoes of the responsible authority and considers the permit application afresh, de novo.[22]

Processing of the permit application by the Council

1. Throughout the group applicants' case, criticisms were made of the responsible authority's assessment and consideration of the permit application. It was suggested that it was insufficient, cursory, or lacking in its consideration of matters contained in the written objections. It was argued that the failure to provide full and timely information to the objectors disadvantaged them unfairly and prejudicially. Further, Ms Hoskin gave evidence about difficulties in obtaining information from the responsible authority and the failure of the responsible authority to conduct a consultation meeting. Mr Balzola submitted:

We submit that the applicant Mrs Julie Hoskin is possessed of human rights being a human being. We further submit that on evidence tendered, objectors were denied access to environmental information, denied participation in environmental causes concerning this development and therefore denied their human rights.[23]

1. The group applicants expected more to be available from the responsible authority or required by the planning process than the PE Act mandates. Even if there are relevant matters that were not explored in sufficient detail during the processing of the permit application by the responsible authority (and this is not established), the Tribunal has heard this permit application afresh based on all of the material placed before it. The parties have had the opportunity for their submissions and evidence to be considered and assessed fully by an expert, independent Tribunal within the scope of the statutory framework for planning decision-making. All parties have been provided with all information tendered in this proceeding by other parties, and the Tribunal's file is able to be inspected. Recordings or transcripts of proceedings have been obtained by the parties. It is noted that the complaint about access to information has not been made in relation to the Tribunal's hearing or access to information before the Tribunal.

1. A range of issues about potential costs applications under the VCAT Act have been raised. Costs have been reserved in these proceedings on a number of occasions, and will be addressed separately at the conclusion of the proceedings upon submissions by the parties.

1. The proposed mosque (place of worship/assembly), caretaker's dwelling and sports/community hall (minor sports and recreation facility) are intended to be constructed in the southern part of the subject land with vegetation retained around the northern and eastern parts of the site.
2. Based on the description in Ms Peterson's statement of evidence, the mosque is proposed to operate as follows:

(1) daily prayers (five times a day). The call to prayer is undertaken using mobile phone technology rather than the traditional loudspeaker;

(2) Juma'a (Friday afternoon prayers), an important religious day of the week, between 12.30pm and 1.30pm;

(3) Eid prayers and community get togethers (twice a year);

(4) religious studies and education for adult, youth and children with education facilities to provide for the provision of religious teaching for all groups within the religious community;

(6) administration office to enable the day to day operation of the mosque;

(8) a small shop to enable the sale of Islamic related religious material such as books;

(6) marriage ceremonies, funeral prayers and social functions associated with a place of worship (but not birthdays, anniversaries or political discussions/campaigns);

(7) operating hours between 5am and 11pm. Flexibility in operating hours is sought because prayer times are informed by the lunar cycle; and

(8) the sports and community centre is proposed to operate between 9.30am and 10.30pm. Permit conditions seek to limit its use when prayers are being held. It would be made available for use by the wider Bendigo community as well as the Muslim community.

(1) the mosque and prayer hall are located centrally on site facing Mecca (west). The main prayer hall is on the ground floor and has an area of 390.31sqm with a mezzanine/women's prayer hall at first floor of 147.35sqm in area. A minaret is proposed to the north of the main entrance as an architectural feature. It has a maximum height of 21.4 metres based on permit conditions;

(2) to the north/north-east is a two storey building comprising amenities, storage, a kitchen for the canteen and a multi-purpose classroom at ground floor. At first floor are further amenities, storage, kitchen, a family room and multi-purpose classroom;

(3) a covered courtyard with domed roof is located to the east of the prayer hall. It includes a central water feature. The dome has a maximum height of 11.4 metres;

(4) east of the covered courtyard, the building comprises a multi-purpose classroom, storage, and waiting and washing rooms on the ground floor. A library, multi-purpose classroom and storage room are provided at the first floor;

(5) an open landscaped courtyard is located to the south of the covered courtyard;

(6) facilities necessary for religious observance are also incorporated, including washing rooms and separate prayer facilities for women;

(7) the sports centre is located to the south of the reception foyer. Its area is 719sqm, with double height provided. The two storey building to the west of the sports centre comprises a shop at ground floor, administration areas and amenities at ground floor. The caretaker's dwelling is located at the first floor, along with a meeting room;

(8) vehicle access would be via Rowena Street, using two separate crossovers. A single crossover is located close to the western boundary, while a double crossover is located closer to the eastern boundary;

(9) car parking will be provided off the driveway, as it approaches the mosque, in the north-west corner of the site and to the south of the buildings;

(10) a total of 131 car spaces are available on site and 10 bicycle spaces are outside the reception foyer entrance; and

(11) removal of 0.856ha of remnant patches of native vegetation, largely comprising mature trees, regrowth trees and understorey shrubs.

1. Staging detailed on the application plans comprises:

(1) stage 1: prayer hall (mosque), associated facilities and car park;

(3) stage 3: sports centre and associated facilities and caretaker's dwelling.

1. The subject land is in East Bendigo. It has an area of 2.072 hectares. The northern and eastern parts of the property are well vegetated, while the balance is generally cleared. The land is undulating in part.

1. The subject land abuts Rohs Road and Rowena Street on three sides. Vehicle access is gained from Rowena Street. The fourth, south-western boundary is shared with vacant land and is earmarked for a new link road, some of which has been constructed. That corridor in turn abuts the rear of industrial premises fronting Prospect Court and the western end of Rowena Street.
2. Two small, separate lots front Rowena Street and Rohs Road that are essentially excised from the large lot. 5 Rowena Street contains a dwelling on a well vegetated lot. The other land parcel is treed and close to the intersection of Rohs Road and Victa Road.
3. Opposite, on the north side of Rowena Street, are a mix of residential and non-residential properties:

(1) 51-53 Rohs Road, on the intersection with Rowena Street, is occupied by a single storey corrugated iron shed fronting Rowena Street and a single dwelling fronting Rohs Road; and

(2) 14 Rowena Street, which occupies a greater proportion of the north side of this street, contains a wholesale plant nursery and a dwelling.

1. Opposite, on the east side of Rohs Road, are a mix of residential and non-residential properties including multiple dwellings, warehouses and factories. The Bendigo airport is further to the east/north-east.
2. The link road is being constructed. Rowena Street will terminate opposite the north-west corner of the subject land. Signage on the road refers to it having carried heavy haulage.

(1) the subject land, the two small lots to which it directly abuts (including the dwelling at 5 Rowena Street), the new link road and the land to the west of that link road, are all within an IN3 Zone;

(2) properties on the north side of Rowena Street are within a Low Density Residential Zone ('LDRZ'), as are several lots on the east side of Rohs Road;

(3) other residential and non-residential properties on the east side of Rohs Road, south of the LDRZ, are within an Industrial 1 Zone ('IN1 Zone'); and

(4) Rohs Road and Strathdale-White Hills Road is a road in a Road Zone Category 1.

The Bendigo airport is further east in a Special Use Zone 7.

1. A permit is required to use and develop the land as proposed under cl 33.03-1 and 33.03-4. The purpose of the IN3 Zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.

To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.

To allow limited retail opportunities including convenience shops, small scale supermarkets and associated shops in appropriate locations.

To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.

1. No application is made under cl 52.06 to reduce car parking or under cl 52.34 with respect to the provision of bicycle parking. This is because the proposed development meets the car parking and bicycle parking standards in the planning scheme.
2. A permit is required pursuant to cl 52.17 to remove native vegetation.
3. No application has been made under cl 52.29 to create access to a road in a Road Zone Category 1. VicRoads is not a referral authority for the application under cl 66. It was, however, notified of the application.
4. The general decision guidelines at cl 65 are relevant including considerations listed in s 60 of the PE Act (addressed below).

1. The subject land is within the urban growth boundary of Bendigo. The Tribunal has had regard to all of the policies and provisions in the planning scheme relevant to the proposal. Through State and local policy in the Scheme, objectives are directed to:

Support Bendigo as the regional city and the major population and economic growth hub for the region, offering a range of employment and services.

Providing for appropriately located supplies of residential, commercial, and industrial land across a region, sufficient to meet community needs in accordance with the relevant regional growth plan.

Responding to changing community needs and facilitating timely provision of, and access to, social infrastructure and services.

Protect industrial activity from sensitive land uses.

1. Key themes in the policy are the minimisation of land use and amenity conflicts in the development of industrial land and the provision of cultural facilities and infrastructure.[24]

1. Industry strategy at State level seeks to plan for an adequate supply of industrial land and industrial uses in locations with good access and appropriate buffers between industrial land and sensitive uses. It is a strategy to:

Avoid approving non-industrial land uses, which will prejudice the availability of land for future industrial requirements, in identified industrial areas.[25]

1. Clauses 21.02 and 21.07 identify the role of East Bendigo for future industrial development. Clause 21.02-4 provides:

This precinct will be developed to ensure industrial land availability is maximised and industrial expansion will be encouraged and promoted.

1. Clause 21.07 refers to the Bendigo Industrial Land Strategy 2002, and the East Bendigo Structure Plan. Consistent with the directions of State policy, it is local policy to (inter alia):
   • Ensure that existing and future industrial land is adequately protected from non-industrial areas.
   • Promote key industrial areas in order to improve the diversification of the municipality's industrial base.
   • Encourage developments to incorporate good quality design, built form, landscaping and environmental standards which will promote the visual amenity and attractiveness of industrial land in Bendigo.[26]

1. The IN3 Zone is applied expressly to provide a buffer between the IN1 and residential zones.[27] The Bendigo aerodrome is to be upgraded and an urban growth boundary defined to better manage the city's outward expansion.[28]
2. Clause 22.05 applies to the use and development of land for industry. The subject proposal is not for industry and consequently this clause is not directly applicable. The clause does, however, assist to explain the vision for the East Bendigo Industrial Precinct.

1. Clauses 19.02-3 and 19.02-4 address cultural facilities and infrastructure with objectives to:

To develop a strong cultural environment and increase access to arts, recreation and other cultural facilities; and

To provide fairer distribution of and access to of social and cultural infrastructure.

1. There is encouragement in State policy for these facilities to be established at locations that are well served by public transport and in activity centres. Local policy at cl 21.09 reiterates support for the appropriate provision of infrastructure that meets Council and community expectations, and adequate community facilities within existing and new neighbourhoods.

1. The Tribunal has had regard to the Bendigo Industrial Land Strategy, 2002 and the East Bendigo Structure Plan. The former foreshadows a structure plan. It shows the subject land in precinct 10 'the largest and strongest cluster of industrial activities in Bendigo', at a key gateway with a management action to minimise impacts on residential areas and/or sensitive uses. The East Bendigo Structure Plan shows the subject land bisected by a new road and within an existing 'light industrial precinct IN3'.

Charter of Human Rights and Responsibilities Act 2006 (Vic)

1. Sections 14 and 19 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter') seek to protect the human rights to freedom of culture, religion and belief. The relevant parts of s 14 of the Charter state:

(1) Every person has the right to freedom of thought, conscience, religion and belief, including -

(a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

1. The relevant part of s 19(1) of the Charter states:

(1) All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language.

1. Section 38(1) and (2) of the Charter provide:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

1. 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).
2. 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.
3. 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.
4. 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:

The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a 'common or garden' activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.[31]

1. While the Tribunal accepts that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified. The Tribunal accepts that the responsible authority does have obligations under the Charter. The responsible authority is a public authority under s 6 of the Charter and, like the Tribunal in this review proceeding, is required to give proper consideration to the rights of individuals and the rights of the potential users of the mosque and associated facilities. That is the case notwithstanding that the permit applicant, as an entity, does not itself have rights under the Charter. It is significant that there are two limbs to s 38(1) of the Charter. The first deals with acting 'incompatibly with a human right'. This limb is certainly applicable to a natural person who is a party and contends for a human right. The second limb prohibits the public authority 'in making a decision' from failing 'to give proper consideration to a relevant human right'. Clearly, there can be a 'relevant human right' whether or not a natural person is a party to the proceedings. Here, the human rights of the individuals who will use the mosque are relevant. Those rights are properly identified by the responsible authority and permit applicant.
2. In Rutherford v Hume City Council,[32] Deputy President Dwyer and Member Deidun said:

We note the Council's view that refusing the permit for the mosque, at the behest of supporters of the church, may offend the Charter by impinging on the ability of an identifiable group of Shi'ite Muslims to practice their faith ... In the interest of preserving religious equality and the freedom to exercise religious beliefs, the Court should be slow to adopt a construction which could have the effect of preventing the use of premises by persons who wish to practice their religion at the place where they wish to do so.[33]

1. Similar views have frequently been expressed by courts. In New Century Developments Pty Limited v Baulkham Hills Shire Council[34] Lloyd J said:

It must be borne in mind that the development application is for a house of prayer. One of the draftsmen of the United States Constitution, Thomas Jefferson, regarded freedom of religion as "the most inalienable and sacred of all human rights". The words of the First Amendment to the United States Constitution found their way into s 116 of the Constitution of the Commonwealth of Australia: "the Commonwealth shall not make any law ... for prohibiting the free exercise of any religion".

In Canterbury Municipal Council v Moslem Alawy Society Ltd, McHugh JA observed, in a case of statutory construction, that we are and always have been a multi-religious society. McHugh JA also said:

Furthermore, in my opinion, Australian courts should be slow to adopt an interpretation of a legislative instrument which would have the effect of preventing the use of premises in a neighbourhood by some of those who wish to practice their religion while at the same time allowing others to practice their religion in the same neighbourhood. The preservation of religious equality has always been a matter of fundamental concern to the people of Australia and finds its place in the Constitution, s 116. As Mason J pointed out in Attorney-General (Vic); ex rel Black v The Commonwealth:

...To the Australian colonists the preservation of religious equality was perhaps more important than the preservation of religious freedom for the simple reason that they had experienced the disadvantages of religious inequality and it posed a more immediate threat than the absence of religious freedom.

Although this case is essentially concerned with a question of statutory construction, at back of the proceedings is a question of freedoms to exercise religious beliefs. "... Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society" If the ordinance is capable of a rational construction which permits persons to exercise their religion at the place where they wish to do so, I think that a court should prefer that construction to one which will prevent them from doing so_._

In my view the comments of McHugh JA apply equally to the construction of the words "social...impacts in the locality" as used in s 79C(1) of the EP&A Act. In the interest of preserving religious equality and the freedom to exercise religious beliefs, the Court should be slow to adopt a construction which could have the effect of preventing the use of premises by persons who wish to practice their religion at the place where they wish to do so.

The views of McHugh JA to which I have referred were expressly adopted and applied by Mason P (Stein and Giles JJA concurring) in House of Peace v Bankstown City Council. That was a case in which the appellants sought to use a disused Presbyterian church as a Muslim mosque. Mason P also said:

Planning law "is concerned with the use of land - not with the identity of the user": per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council. This means that it is no part of the court's function to seek as such to ensure that the pattern of worship adopted by the Presbyterians in 1954 continues. Nor is it open to favour or disfavour any pattern of religious expression. Equality before the law requires judicial agnosticism in this area.

Cripps J's statement that planning law is concerned with the use of land, not with the identity of the user also focuses attention upon the functions of environmental planning instruments and consents. They are concerned with physical use, environmental impact and amenity. In the present context, attention is directed away from "church" as a body of believers to "church" as a building where particular types of activity take place.

In applying what was said by Mason P in House of Peace, I am not to be concerned only with the identity or identities of the user or users of the proposed facility. The consent, if granted, would afford any religious group or denomination the use of the facility. It would not be limited or restricted to use only by the present applicant. Accordingly, the focus must be on the physical building that is proposed and on the environmental impact and amenity impact that the building and its use will have. And I repeat, in accordance with the views of McHugh JA, set out above, in the interests of preserving religious equality and the freedom to exercise religious beliefs the Court should be slow to prevent the use of the premises by persons who wish to practice their religion at the place where they wish to do so.[35]

1. The Tribunal accepts that the group applicants also have relevant rights under the Charter and under the Rio Declaration on Environment and Development 1992 ('Rio Convention'). The Tribunal has already stated that there is no evidence to support the contention that Ms Hoskin's rights to participate in the permit application process have been denied. In addition, the group applicants have had the benefit of an application for review to this Tribunal, de novo.
2. Mr Balzola referred to Article 10[36] of the Rio Convention, of which Australia is a signatory, which provides:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and the activities in their communities and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

1. The Tribunal has considered Principle 10 of the Rio Convention. The current proceeding is exactly the type of proceeding contemplated by that Principle. The Tribunal has not been presented with evidence or submissions that persuade it that Ms Hoskin's rights have been breached notwithstanding her grievances about the administrative process, which have been expressed to the Tribunal.
2. This case is a town planning dispute focused on a specific proposal at a specific location. The Tribunal has recognised all relevant rights when weighing up the matters before it. Those rights include the rights under the Charter of the persons who will use the mosque and associated facilities as well as those of the group applicants.

1. Section 4(2)(d) of the PE Act sets out the objectives of the planning framework:

... to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land.

1. Section 60 of the PE Act includes the following requirements:

(1) Before deciding on an application, the responsible authority must consider -

(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.

1. Environmental, social and economic effects must be considered where the effects are considered by the responsible authority (or the Tribunal on review) as significant and relate to the proposed use or development. Tribunal decisions in the past have held that the consideration of these matters is relevant and necessary where:

(1) the contended effects are on the community, not individuals and their private financial interests;[37]

(2) the effects are demonstrable;[38] and

(3) the effects are significant, using the words of the PE Act.

1. The Tribunal's decisions in Rutherford and Hunt Club Commercial,[39] have reiterated these principles with respect to the operation of the provisions of the current Act.[40] In Rutherford, the Tribunal made six observations about s 60(1)(f), in addition to the principles identified above[41]:

(1) the effects to be considered are those that the decision-maker considers to be significant, rather than those that may simply be contended or alleged as significant by a party;

(2) the significant social and economic effects must have a causal connection to the use or development proposed in the permit application under consideration;

(3) the identification of effects should commonly and preferably occur through a formal and independent social impact or socio-economic assessment, or objectively ascertained through the decision maker's expertise and/or material before it;

(4) consideration of social effects pursuant to the PE Act:

• must be objective, specific, concrete, observable and likely consequences of the proposed use or development;
• must be sufficiently probable to be significant; and
• should not be based on philosophical, moral or religious values;

(5) mere opposition by a section of the public, or a large number of objections is not, of itself, evidence of social effect; and

(6) effects must be balanced with any other significant social and economic effects.[42]

None of these principles were challenged by the group applicants.

1. With respect to social impacts, Mr Balzola referred to Tsang Hui v Council of the Municipality of Strathfield,[43] where Cripps J took into account the views of local residents who did not approve of people of other cultures having places of religious worship in their area, albeit that this did not lead to the refusal of the application.[44] Mr Balzola also emphasised that in New Century Developments, Lloyd J of the New South Wales Land and Environment Court said:

In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate...[45]

1. That finding related to intangible elements as compared with physical environmental effects. Lloyd J went on to say:

... it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds....[46]

1. However in deciding to grant a permit for a place of worship, Lloyd J held:

In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area .... In Broad, de Jersey J explained ... that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.

A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act....Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear....

In the interest of preserving religious equality and the freedom to exercise religious beliefs, the Court should be slow to adopt a construction which could have the effect of preventing the use of premises by persons who wish to practice their religion at the place where they wish to do so....

...I am not to be concerned only with the identity or identities of the user or users of the proposed facility. The consent, if granted, would afford any religious group or denomination the use of the facility. It would not be limited or restricted to use only by the present applicant. Accordingly, the focus must be on the physical building that is proposed and on the environmental impact and amenity impact that the building and its use will have. .... in the interests of preserving religious equality and the freedom to exercise religious beliefs the Court should be slow to prevent the use of the premises by persons who wish to practice their religion at the place where they wish to do so.[47]

1. The Court's conclusions in New Century Developments occurred in a different legislative and statutory planning context to that before this Tribunal. Its conclusions were made in the context of an amenity assessment rather than under s 60(1)(f) of the PE Act. However, a conclusion that the subjective fears and concerns of residents would be accorded little, if any, weight if there was no 'objective, specific, concrete, observable likely consequence'[48] is consistent with previous decisions of this Tribunal.[49]
2. A second decision relied on by Mr White and Mr Balzola is the decision of Commissioner Brown, also of the New South Wales Land and Environment Court, in The Qur'anic Society v Camden Council.[50] In following the New Century Developments decision, Brown C highlighted the need to consider 'public interest' matters raised by local residents under s 79C of the Environmental Planning and Assessment Act 1979 (NSW).[51] While 'public interest' is a wide ranging concept, and local residents were usually given considerable flexibility, not every matter raised by a resident, even though it may genuinely be thought by the residents to be in the 'public interest', is a matter that falls within the power provided by s 79C.[52]
3. While the legislative framework and statutory planning context in New South Wales differ from those in force in Victoria, the approach taken by the Land and Environment Court in New South Wales is consistent with that taken by this Tribunal.

1. The Tribunal summarises the objections pursued by the group applicants through the submissions of Mr White and Mr Balzola, and through Mr Tesdorpf's expert evidence with respect to social impact effects, as follows:

(1) the quantity and quality of objections are a significant factor in this particular development;

(2) a large proportion of the Bendigo community oppose and are offended by this development; and

(3) the number of objections and the controversy that has arisen about this permit application are among the reasons why a social impact assessment should be required.

(1) Mr Tesdorpf said a social impact assessment should have been required because of:

(a) the frequency with which religious, social and cultural issues were cited;

(b) the controversial nature of issues cited by many objectors focusing on opposition to, and concern with, Islam; and

(c) the controversial nature of the proposal in the community and the broader issues of religious diversity under debate in the wider national media landscape;

(2) claims by either side need to be independently tested;

(3) whether or not the fears are founded, they are genuine and have not been properly considered to determine if they are well founded;

(4) the objections are not irrational or unsubstantiated; and

(5) the content of the objections made to the responsible authority and not withdrawn include conflicts and incompatibility of Islam with Australian constitutional law, a need to protect youth from being radicalised, the impact of Sharia Law on the community, safety issues, and that the facilities should not become a recruiting ground.

(1) the responsible authority did not consider, other than in a dismissive and cursory way, the social impacts and effects referred to in the objections. There is no indication that it thought carefully about the concerns and issues raised before making its decision;

(2) it was incumbent on the responsible authority to consider these impacts through s 60(1)(f) of the PE Act rather than the onus being on the group applicants;

(3) there is no objective, independent testing or assessment of social impacts and effects, and this is a failure of both the responsible authority and the permit applicant. Moreover, there is no such assessment before the Tribunal, and the Tribunal is not in a position to determine in favour of the permit applicant;

(4) it is not possible to determine if the objections are general or specific to this proposal because no assessment has been undertaken; and

(5) section 60(1)(f) of the PE Act mandates a social impact assessment.

(1) a mosque has specific and different attributes to other places of worship;

(2) there are concerns about Islam and its integration with western culture;

(3) approval of the use and development will affect social cohesion and a sense of belonging, cause offence and a feeling of exclusion to members of the community, and affect their lifestyle;

(4) fear that approval of the mosque will mean more people dressed in Islamic dress, potential abuse or harassment, and will change the character of the area;

(5) there is a fear of, and lingering concerns about, the 'Islamification of Bendigo'. Approval of the current proposal, and future development plans, will create a concentration of one culture in one location - that is, an enclave or super centre of Islam, and that the size of the centre will attract more people of Islamic faith and drive the demand. Homes will be purchased by Muslims; and

(6) the creation of an Islamic precinct or enclave that proceeds out from the boundaries of the subject land under consideration in this proceeding. The information regarding the acquisition of additional land by the permit applicant was not something available to the public prior to approval by the responsible authority. This in itself has social impact and amenity consequences.

1. The Tribunal's findings on the group applicants' submissions follow.

1. A total of 254 objections had been received by the responsible authority at the time of the officer's report to the Council meeting. Multiple concerns were identified in many of the objections.
2. There is no doubt that the content of objections must be considered. In Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd,[53] Emerton J stated:

For the fact that there were 627 objections to the Lend Lease proposal be a 'salient fact' giving shape to the matter of social impact (assuming for the moment that 'social impact' is coterminous with a 'significant social effect'), there must be something to make it so. Mere evidence of opposition by a section of the public is not, in and of itself, evidence of social impact or social effect. In order to constitute such evidence, the number of objections must say something about the detrimental effect on the community of approving the development. However, nothing was put forward to transform the raw number of objections into evidence of social impact on or evidence of the aspirations of the community.

Indeed, the context would suggest that the number of objections had little or nothing to say about the social impacts of or social effects of the proposal. The proposal is for a residential development in an inner urban municipality of over 100,000 residents. The site itself is, as the Tribunal found, an 'island' site of considerable size that is ripe for redevelopment in accordance with the 'large sites policy' in the Stonnington Planning Scheme. The 627 objections were directed largely to the scale and density of the proposal. This was not a case where a new use was proposed that might be offensive or upsetting to some residents based on their particular beliefs or adherences or where the proposal, on its face, was capable of having a significant adverse effect on the health, happiness or prosperity of the residents of Stonnington . In its submission to the Tribunal, the Council pointed to a 'strong message from the community' that the community wanted lower density, lower scale development with a generosity of open space and it asserted that denial of or failure to respond to this 'aspiration' was a significant social effect. In my view, the 'effect' described is that more than 600 people disagreed that the proposal produced an acceptable planning outcome. That is a difference of opinion. It is not a significant social effect or social impact of the type recognised in Romsey.

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]

1. While it was submitted that the number of objections in this proceeding was high, this is simply not the case. There are numerous permit applications processed by responsible authorities, some of which come to the Tribunal through review proceedings, where there are many hundreds of objections. This reflects the point made by Emerton J that the number of objections, taken alone, is not evidence of a significant social impact. What is unusual in this case is that 38 letters of support for the permit application were received by the responsible authority.
2. Moreover, after the responsible authority decided that a permit should be granted, relatively few residents saw fit to seek review of the notice of decision by the Tribunal. There were only 16 group applicants and by the end of the proceedings, there were only 11 remaining. While there were also other applications for review, none proceeded. These numbers are low in the Tribunal's experience.

1. Mr White submitted that once an objector says an impact is significant, it should be investigated. The Tribunal agrees that all grounds advanced by an objector to the responsible authority, or the group applicants to the Tribunal, need to be considered.
2. In hearing this matter de novo, the Tribunal must first assess the grounds of the objection in order to determine that the ground is within the relevant scope of decision-making, as defined by the PE Act and the planning scheme. Relevant matters include purposes, objectives, permit requirements, and guidelines such as cl 65 of the planning scheme and s 60 of the PE Act. If a ground is relevant, it is then necessary to consider the impact of the proposed use or development, and whether it is the type of impact that could arguably be objectively regarded as significant, specific, and causally connected to the use or development in the location proposed.[55]
3. The Tribunal accepts that grounds and contentions have been raised by the group applicants that are relevant. However, it finds for the reasons given below that none of the suggested significant social impacts have been substantiated by the group applicants. Furthermore, it must be noted that there was little (if any) evidence that the concerns held by the group applicants, such as those relating to Islam and its integration with western culture, had any direct relevance to the specific use at the subject land. As the Tribunal has said, the subject land is in an industrial zone, surrounded by roads on three sides. It is distant from the main residential areas of Bendigo.

Lack of a social impact assessment or any assessment of the objections

1. One of the concerns raised by the group applicants is that neither the responsible authority nor the permit applicant undertook a social impact assessment of the impacts alleged by the group applicants and other objectors.
2. Social effects can be evaluated through a formal and independent social impact or socio-economic assessment, or be objectively assessed through the decision-maker's expertise based on the material before it. In this case, the officer's report to the responsible authority shows that the alleged social impacts identified in objections were considered by the responsible authority in the context of s 60 of the PE Act.
3. The officer's report to the responsible authority assessed the social impacts alleged by objectors in the following manner:

Section 60 (1)(f) of the Planning and Environment Act 1987 (the "Act") mandates the consideration of:

"any significant social effects and economic effects which the responsible authority considers the use of development must have".

Furthermore Clause 10.02 of the Planning Scheme sets out that the objectives of planning in Victoria are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

Therefore it is clear that decision-makers must consider the social impacts of their decisions on planning applications.

Many objectors have raised concerns about the social impact of allowing the construction of a mosque in Bendigo. In particular many have given opinions on the Islamic faith and the impact that this has had on communities in other parts of Australia and other parts of the world. For instance some have said that the building of a mosque will lead to local residents being harassed and abused by attendees. This would clearly be an adverse social impact if it were to occur.

Notwithstanding the opinions held about the impact of the building of mosques in other communities, to refuse the application on social impact grounds would require evidence that the building of a mosque in Bendigo would indeed have adverse social impacts. Officers have considered the comments made and have concluded that opinions that a mosque has had a social impact in other places in Australia and around the world is not compelling evidence that the impacts perceived by those objectors would happen in Bendigo.

Moreover if the application were to be refused on social impact grounds without good reason this would be a failure to provide social and cultural facilities which would be contrary to the objective of State Planning Policy Clause 19.02-4 Distribution of social and cultural infrastructure.

1. It is plain that the officer correctly identified that social effects were relevant to planning decision-making. The officer advised the responsible authority that to refuse the application on social impact grounds would require evidence that the building of a mosque in Bendigo would have adverse social impacts. The report pointed to the fact that there was no compelling evidence that the impacts perceived by objectors would happen in Bendigo or at the subject land. Moreover, the report pointed to the refusal of the application as a failure to provide social and cultural facilities and contrary to the State Planning Policy. Ultimately, the officer concluded that the proposed development would meet the strategic goal of providing cultural facilities for the community thereby providing a net benefit.
2. As has been stated in these reasons, and contrary to submissions on behalf of the group applicants, s 60(1)(f) of the PE Act does not mandate a formal social impact assessment conducted by the responsible authority. Consideration of all objections by the responsible authority is required, but this does not mean that a formal social impact assessment must be undertaken in every case. The decision-maker must consider all relevant matters and must decide whether any social impacts are positive or negative, and if negative, whether they are significant.
3. There was some debate before the Tribunal in this proceeding about which party should substantiate the ground that there will or will not be significant social effects. In Rutherford, the Tribunal stated:

We say that the refusal 'could' have as much or greater effect, because there is simply no proper or independent social impact assessment or socio-economic assessment before us, at a community level, to finally determine his. We think it incumbent on a person asserting a significant social effect to substantiate it in a proper balanced context. We accept that such an assessment would be very difficult at an objective level, having regard to the inherent difficulties in assessing any ethic divisions or prejudices in a community, or comparing the needs and aspirations of different faiths. However, we have nothing to materially assist us in ascertaining or weighing all of the positive and negative effects to determine which outcome would result in the best or worse outcome in terms of 'net community benefit' as a whole. We therefore rely to an extent on the Council's sense of the social needs and well-being of its community, leading to its balanced view in favour of the mosque locating at this site.[56]

1. 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.

1. 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.
2. 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.
3. 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.

1. The group applicants expressed considerable concern about the inadequacy of, and uncertainty regarding, information in and accompanying the permit application. Mr Balzola made both written and oral submissions on this point, as did Ms Hoskin in oral evidence and a sworn affidavit. Mr Tesdorpf also addressed this matter in his evidence. Asserted gaps and shortcomings included:

(1) there is a lack of information about the capacity and floor areas of the facilities which could, across all parts of the development, total more than 2,000 people. Mr Tesdorpf referred to potentially more than 500 people;

(2) the permit applicant has relied on much smaller patronage numbers used in the Cardno report, also relied on by other experts and the responsible authority during their assessment, which is flawed. Insufficient explanation has been given as to how Cardno derived its estimated peak patronage (and therefore car parking requirement) for the sports hall;

(3) it is appropriate for the Tribunal to consider the capacity of the proposed development rather than 'guestimations' based on speculations of secret instructions between the permit applicant and Cardno, regarding 'mythical' Muslim families of two parents and 0.5 children. The Cardno numbers are for prayer only;

(4) there are no comparable attendance statistics for similar sized mosque developments;

(5) there is ambiguity as to whether the sports hall will comprise one or two storeys, and a lack of information about the sports hall, including what types of sports will be catered for, and whether it is designed for players only or also for spectators;

(6) there is no information as to foundations and soil conditions;

(7) there is insufficient information as to the nature and extent of traffic queues and delays expected during Friday prayer times; and

(8) there is insufficient explanation of the reference to the 51 car parking spaces at the southern end of the site as being 'informal landscaped parking'.

1. The planning application was accompanied by a submission by the Tomkinson Group, a report on traffic and parking matters by the Cardno Group, as well as comprehensive plans and photographs. The Tribunal has subsequently received expert evidence from the responsible authority and permit applicant. The Tribunal is satisfied that the nature of the proposal is clear, and that there is sufficient information on which to decide this application. The plans show the extent of proposed development, including in relation to the sports hall, keeping in mind that the hall has a high internal floor level associated with the playing space/arena.
2. The other matters raised by Mr Tesdorpf will be considered later in these reasons.

Changes as a consequence of the agreed conditions

1. Relying on Ms Hoskin's evidence, Mr Balzola submitted that the proposal had changed significantly over the course of the hearing due to negotiations between the responsible authority and the permit applicant during the conditions application. He also argued that the changes to the conditions were so substantial as to warrant being reconsidered by the responsible authority.
2. Mr Balzola contended that the modifications amount to a radical departure from the original application and represent a transformation that warrants the matter being considered through either a fresh application or remittal to the responsible authority. When questioned by the Tribunal, Mr Tesdorpf admitted that he did not agree with this position.
3. The Tribunal finds that the submission has not been substantiated. The Tribunal does not accept these submissions regarding the consequences of the agreement reached in the conditions application. The agreed changes between the responsible authority and the permit applicant maintain the following:

(1) a cap on the numbers of patrons on site at any one time;

(2) an obligation to not use the sports hall during prayers;

1. 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.
2. 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).
3. 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.
4. 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.
5. 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.

1. 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.
2. 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.
3. 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.
4. 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]
5. 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.

1. Mr Tesdorpf questioned the categorisation of the proposed land uses with respect to education and the shop. Mr Tesdorpf suggested that these components of the permit have the potential to be not merely ancillary, but rather separate uses for which an additional permit is required.
2. The responsible authority and permit applicant disagreed, submitting that these components of the proposal will be ancillary to the use of the land as a place of worship and will therefore be controlled through the permit conditions.
3. The Tribunal accepts the submissions of the responsible authority and the permit applicant. It accepts Ms Peterson's evidence that, in addition to being an important meeting place for people with common beliefs, there is a tendency for places of worship of most faiths to also provide associated activities, including administrative functions, counselling, meetings, charitable and community services, seminars and education, some of which are related to religious observance, but others of which are related to broader community or pastoral care programs conducted by the particular organisation. This is consistent with the proposal that is the subject of this permit application.

1. The group applicants argued that there was no need for the facility. Mr White and Mr Balzola submitted that this is a case where lack of need is a reason to refuse a permit.
2. The Tribunal accepts that there is a need and that it is desirable to provide a mosque for the local and regional communities that observe Islam. Communities observing Islam regard the lack of a dedicated facility as a need to be filled, given that classroom facilities at LaTrobe University are currently being used. The permit applicant did not contend that it is required to establish a need, although it did submit a need is amply demonstrated given that the existing facilities have been outgrown.
3. The Tribunal agrees with the group applicants that the critical question is whether the subject land is an appropriate location and that the existence of a need for a mosque is not determinative in this proceeding. This conclusion is based upon a long line of well-established authority founded in Shell Company of Australia Ltd v City of Frankston,[60] to which Mr Balzola also referred:

When the word "need" is used in a town planning sense, it must mean community need. It is not necessary to show an element of urgent community necessity for a facility. Rather need connotes the idea that the well being of a community or some part of it can be better and more conveniently served by the provision of a particular facility.

Need is a relevant consideration, but not an essential requirement.

If an applicant can show a need for a proposed use, then this factor may outweigh other considerations adverse to the use. However, a lack of need will rarely, if ever, be a ground for refusing to grant a permit.[61]

1. The Tribunal finds that there is a need for the proposed facility. Even if there were a lack of need (which the Tribunal does not find), this would not be a basis for refusing to grant a permit.

1. The group applicants argued that the location of the proposed use is not appropriate because of the residentially zoned land opposite and nearby. Some of the written objections to the Council described the subject land as being in a residential area.
2. Mr Tesdorpf did not consider that an industrial zone is an inappropriate zone for a mosque as a matter of principle, and noted that places of worship are permissible in residential areas under the planning scheme. He raised a number of considerations about the location of the site in terms of its relationship with the residential area to its north, and its relationship to Bendigo more generally:

(1) the proposed development falls short of the following strategic directive:

Concentrating key trip generators such as higher density residential development in and around Central Activities Districts, Principal, Major and Specialised Activity Centres on the Principal Public Transport Network.

(2) it is a relatively large complex designed to attract significant numbers of visitors, up to 375 persons at a time, however it is located on the urban fringe of Bendigo, not near an activity centre, and in a location with virtually no public transport save for a very low frequency (once hourly) bus route;

(3) the urban fringe location of the development does little to support low energy forms of transport such as walking or cycling, as it is in a location where travel reliance will primarily be on private cars;

(4) the proposal does not achieve integrated land use and transport planning; and

(5) locating all vehicular ingress and egress on Rowena Street is a less than optimal design outcome. This has the effect of concentrating large numbers of car movements in a residential street, when opportunities exist to utilise other wider roads abutting (and proposed to abut) the subject land.

1. It was not contended or argued that the proposed use and development would have negative impacts on nearby businesses or industries.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Loss of industrial land and relationship with the IN3 Zone purpose

1. The IN3 Zone has been found by the Tribunal in other cases to be an acceptable zone for a place of worship.[62]
2. The group applicants argued that the location of the proposed use is not appropriate on the subject land because:

(1) it will result in the loss of industrial land, in the responsible authority's preferred location for industrial expansion;

(3) it is of a scale and intensity, particularly because of the hours of operation, traffic and numbers of people, that is inconsistent with the role of the IN3 Zone as a buffer and is greater than many uses within the IN1 Zone;

(4) the subject land is at an interface with a LDRZ which is lower density and quieter than a General Residential Zone. This is relevant to the role of the land as a buffer through its IN3 zoning; and

(5) in cases where churches locate in industrial areas, they use existing buildings, contrasting with the current permit application, which will not offer that flexibility.

1. In reply, Ms Peterson agreed that the proposal would result in a loss of industrial land. However, as already stated, she regarded the subject land as suitable for the proposed land use given that the new link road would separate it from the balance of the industrial precinct and lose any synergistic benefits. Ms Peterson also expressed the opinion that:

(1) the proposal will not preclude the East Bendigo Industrial Precinct from continuing to be developed as a focal point for industrial investment;

(2) the Industrial 1 and 2 zones place much greater emphasis on providing opportunities for industry - the use of land for industry is as-of-right, and not discretionary;

(3) the proposal will create additional jobs, albeit modest in number, and based on Council estimates, 23% or 291 hectares of industrial land is vacant within the Greater Bendigo area; and

(4) the use of the land for a minor sports and recreation facility, caretaker's dwelling and other uses ancillary to the mosque does not raise any additional issues regarding land use within the IN3 Zone.

1. The responsible authority submitted that although there would be a preference for industrial use of the land, the land has difficulties for that use, for example the topography and native vegetation.
2. The Tribunal accepts that the subject land has specific characteristics as a function of the developing road network that ensures that the bodies of industrial land to the east, south and south-east are not fragmented by a non-industrial use interposed into an industrial area. There is no evidence before the Tribunal that suggests that the proposed use and development of the subject land will affect existing industrial uses or prevent the designated industrial area being developed in accordance with the planning scheme.
3. The IN3 Zone is intended to provide a buffer between industrial and residential zones. It is intended to accommodate uses that are sufficiently compatible with a residential interface to achieve an acceptable outcome. A place of worship would, typically, be regarded as having fewer amenity impacts than an industrial use with its potential for noise, odour and truck traffic. Places of worship in an IN3 Zone can be a suitable neighbour and buffer from the type of heavier and more intensive industrial uses within the IN1 Zone. The IN3 Zone does not preclude non-industrial land uses. The applicable purpose of the IN3 Zone has already been set out in these reasons.[63]
4. The hours of operation and scale of activity of a place of worship are consistent with the IN3 Zone.
5. The fact that a purpose-built facility is proposed, rather than development of an existing building, is not relevant or determinative.

1. Mr Balzola submitted that amenity impacts are required to be considered under s 60(1) of the PE Act and have not properly been assessed or addressed by the responsible authority. Mr Tesdorpf identified the following main impacts of the development on residential amenity:

Mr Tesdorpf did not consider noise from the proposed facility would be an issue, given appropriate construction methods, but agreed that a permit condition could require an acoustic assessment to ensure that this matter was addressed. The need for noise attenuation was raised in Mr McGurn's evidence.

1. 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.
2. 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.
3. The Tribunal considers that amenity impacts were properly assessed by the responsible authority. They have again been reviewed during these proceedings.
4. 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.
5. 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.
6. Given the separation from other dwellings in the LDRZ, potential impacts are considered to be limited and acceptable because:

(1) other than the minaret, the proposed buildings are sufficiently low profile with deep setbacks from roads. Retained vegetation and new landscaping will provide a setting for the development. The subject land is currently a vacant vegetated lot and its development with sizeable structures and parking is reasonably expected given its zoning;

(2) the visibility of the minaret will be limited from dwellings in the environs. Moreover, when compared with church spires that can be viewed around Bendigo, it would not have an unusual or unreasonable visual presence. That is the case when also taking into account safety lighting atop the structure;

(3) it is doubtful that there will be significant people noise off-site. Ample parking is proposed on-site, including consideration of overflow. People walking along Rowena Street (noting that there are no footpaths) are not likely to be significant in number; and

(4) traffic noise and movement will be experienced but this is not considered to be unreasonable or excessive in the context of the setting of the subject land, which includes a main road (Rohs Road), the new arterial link road and the Bendigo airport that is earmarked for growth.

1. Given separation distances to dwellings in the LDRZ, the Tribunal does not consider an acoustic assessment with respect to the sports hall is required. There will be no call to prayer audible to existing residents due to the use of mobile telephone and internet technology. A permit condition limits noise from loud speakers and music, and it is noted that these noise emissions are controlled by the Environment Protection Act 1970 (Vic) ('EPA legislation').

1. In oral evidence, Ms Hoskin referred to a number of matters that are described by the Tribunal as suggested economic effects or impacts. Ms Hoskin argued that residents cannot sell their properties, or get a usual price for their properties, due to the mosque proposal. Ms Hoskin referred to an economic impact report addressing property values being obtained by the group applicants. No such report has been prepared or relied upon subsequently. No evidence of economic impact has been provided by the group applicants. It has not been shown by the group applicants that there will be any adverse economic effects or impacts.
2. The relevance of economic impacts in planning matters relates to the contended effects on the community, not individuals and their private financial interests.[64] The effects must be demonstrable,[65] and the effects must be 'significant' consistent with the wording in the PE Act. The contentions advanced by Ms Hoskin and Mr Balzola included loss of the value of dwellings, which does not satisfy the principles which must be applied under s 60(1)(f) of the PE Act. There is no valuation evidence or specific evidence in support of the arguments advanced that provide the basis for assessment or could influence the outcome of this proceeding. There is, therefore, no objective basis upon which the Tribunal could conclude that the alleged economic impacts are demonstrated or significant.

1. In her evidence, Ms Hoskin described her understanding that additional land had been acquired by the permit applicant for use as a school. She expressed considerable concern that the current permit application is only part of a much larger complex that is being planned to service the Muslim community. Mr White referred to the expansion and growth of facilities on the additional land and submitted that there was concern that this will grow, ultimately creating an Islamic activity centre.
2. The material attached to Ms Hoskin's affidavit makes reference to the potential for additions and extensions to the facilities in the permit application. She has additional concerns that there is information missing from the permit application, and that the full intent and extent of development have not been disclosed.
3. The Tribunal is obliged to deal with the permit application before it. Even if it is correct that additional land has been purchased, and that other proposals are on foot, this is not influential to the assessment carried out by the Tribunal, which is confined to the permit application the subject of these proceedings.
4. The Tribunal notes Ms Marcus' submission that any further proposals are not known to the responsible authority. There has been no permit application. The Tribunal agrees with her submission that the question of any other use or development is not relevant, as it is not before the responsible authority or the Tribunal. Ms Marcus observed that primary or secondary schools are prohibited uses in the IN3 Zone, meaning that if there was a proposal for a school, then a rezoning would need to be requested. This is an entirely different process to the assessment of the present planning permit application.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. In his evidence, Mr Tesdorpf did not suggest that the built form outcome or urban design response were inappropriate. The Tribunal considers that the scale and massing of the development is acceptable. Significant setbacks are proposed from site boundaries. The environs already have a built form presence associated with the new link road and existing buildings and infrastructure. The minaret will appear as a thin element in the skyline, as do other steeples and towers in Bendigo.[66] Landscaping is proposed that will enable the development to respond to the presence of vegetation remaining on the land.

1. The material attached to Ms Hoskin's affidavit includes the Permitted clearing of native vegetation - Biodiversity assessment guidelines.[67] Ms Hoskin raises questions about the extent of offsets associated with the removal of native vegetation.
2. Standard offset conditions have been included in the notice of decision. The Department of Environment and Primary Industries, then the referral authority in relation to cl 52.17, did not object to the permit application, subject to the imposition of standard conditions. The Tribunal considers the proposal and conditions satisfactory.

1. Ms Hoskin's evidence and affidavit explain her concern that there has been no assessment of the soil conditions and earthworks to ascertain the suitability of the land for the 'massive structure'. Questions of structural stability are addressed through the building permit process. The Tribunal has not been presented with any evidence that suggests it is appropriate or desirable to address soil conditions and earthworks further at the planning stage.

1. Some levels are provided on the plans. Detailed design, such as of the car park, will finalise grades and levels. The plans and information provided are acceptable at the planning stage.

1. Mr Balzola submitted that the capital value estimated for the works of approximately $3 million is entirely unreliable and cannot be true due to the complexity and size of the proposed works. He submitted 'further clerk of works forensic evaluation of the price of the project must be provided by provisions of expert valuation'.[68] Ms Hoskin's affidavit appended an estimate from a quantity surveyor at over $15.424 million.[69] She said this was part of the undertaking given to provide an economic analysis regarding this issue, although no such analysis was ultimately provided by the group applicants. The quantity surveyor was not called to give evidence, and there was no opportunity for him to be cross-examined by the responsible authority or the permit applicant.
2. The list of costs includes items such as road works and 'contributions'. However, it is not necessary for the Tribunal to enquire into this matter. It has not been verified by evidence, and is not germane to the planning merits of the application. As the Tribunal has said, the proceedings are determined on the merits of the proposal having regard to the proposed use, built form and the relevant considerations. Even if the cost estimate on the application form were inaccurate or wrong (and this has not been shown), the Tribunal would exercise its power under cl 62 of sch 1 of the VCAT Act and determine to disregard the failure on the basis that it is in the interests of justice to do so in the circumstances of these proceedings.

1. 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]
2. 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.
3. 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.
4. 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.
5. 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.

1. A number of conditions on the notice of decision were the subject of the conditions application. As already set out in these reasons, changes to the conditions were agreed between the responsible authority and the permit applicant. In summary, these are:

(1) the number of patrons on the site is capped to 150 people, except for twice annual Eid prayers and midday prayers on Friday for which the number of patrons is capped to 375 people. Use of the sports hall is not permitted to coincide;

(2) a staging plan is linked with the permit expiry, allowing eight years for the development to be completed;

(3) hours of operation are as follows: 5.00am-11.00pm for the place of worship, and 9.00am-10.30pm for the sports hall;

(4) the height of the minaret is limited to 21.4 metres; and

1. As has been stated in these reasons, other parties to the conditions application proceeding were not part of the agreement between the responsible authority and the permit applicant. No statement of grounds has been withdrawn. The Tribunal has commented on permit conditions throughout these reasons and is satisfied that the conditions, as revised, are appropriate.
2. The Tribunal does not agree with Mr Tesdorpf's evidence that the conditions are difficult to enforce, are unlikely to pass legal scrutiny or would be ineffective. Conditions that restrict the use to that described in the permit application and at the hearing are not unusual on planning permits. They are no more onerous or complex than many permits relating to places of assembly and other land uses where hours and number of persons on a site are controlled. There is no reason for the Tribunal to doubt that the conditions will not be complied with by the permit applicant, and, in any event, the responsible authority has the responsibility and capacity to see that they are complied with.

• development and use of a place of assembly, place of worship, minor indoor sports and recreation facility (sports hall) and a caretaker's dwelling; and
• removal of native vegetation;

Before the use and/or development start(s), amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be drawn to scale with dimensions and two copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:

(1) landscaping plan including the car parking areas to accord with condition 3; and

(2) a reduction in the height of the minaret from 24.9 to 21.4m.

Any staging of the development is to be in accordance with a staging plan approved under this condition. A staging plan must show the following:

(1) details of the proposed staging; and

(2) a requirement that the endorsed plans for that stage must show compliance with the conditions of the permit as appropriate to that stage;

to the satisfaction of the responsible authority.

The use and/or development permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the responsible authority.

Before the development starts, a landscape plan to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plan will be endorsed and will then form part of the permit.

The plan must be drawn by a qualified landscape professional and be to scale with dimensions and two copies must be provided. The landscaping plan must be generally in accordance with the landscape concept plan dated 25/02/2014. The plan must show:

(1) a survey (including botanical names) of all existing vegetation to be retained;

(2) details of surface finishes of pathways and driveways;

(3) planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant;

(4) unless otherwise agreed in writing with the responsible authority the offsets recommended by DEPI in condition 23 must be provided on site as part of the landscape plan;

(5) extension of pedestrian footpath to the southern boundary to enable pedestrian access to the site; and

(6) planting to reduce the impact of the car park on the streetscape when viewed from the future East Bendigo Link Road.

All species selected must be to the satisfaction of the Responsible Authority.

Before the occupation of the development starts or by such later date as is approved by the responsible authority in writing, the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.

The landscaping shown on the endorsed plans must be maintained to the satisfaction of the responsible authority, including that any dead, diseased or damaged plans are to be replaced.

1. Operating Hours of Place of Worship and Ancillary Uses

Unless otherwise agreed in writing with the responsible authority the permitted hours of the place of worship and ancillary uses excluding the sport centre on the land under this permit shall be:

In relation to all persons who attend at the place of worship by vehicle, all such vehicles must enter and exit the site as close as practicable to the 'start' and 'finish' times listed above. No vehicles may enter the driveway/car park on the land any earlier than 15 minutes before the 'start' time listed above and no vehicle may exit the car park/driveway any later than 15 minutes after the 'finish' time listed above save that nothing in this condition will prevent use of the place of worship for dawn prayer services.

Unless otherwise agreed in writing with the responsible authority the numbers of people present on the site must be limited to the following numbers:

(1) at times of Eid Prayers (twice annually) - 375 persons;

(2) at times of Midday Prayers on Fridays - 375 persons; and

(3) at all other times 150 persons.

Unless otherwise agreed in writing with the responsible authority the permitted hours of the sports centre and on the land under this permit shall be:

Notwithstanding the above permitted operating hours the sport centre's operating hours must not coincide with prayers at the mosque.

The classrooms shown on the endorsed plans must not be used as a school for the purposes of primary or secondary education as defined under relevant legislation.

The minaret tower must only be accessed for maintenance purposes.

Prior to the occupation of the building the minaret must be marked and/or lit in accordance with Civil Aviation Safety Authority Manual of Standards Part 139-Aerodromes, Section 8.10: Obstacle markings and Section 9.4: Obstacle lighting.

All car parking for the proposal must be contained within the site. In the event that patrons park car on the surrounding streets the operator of the facility must use all endeavours to prevent this from occurring.

Outdoor lighting, where provided, must be designed, baffled and located to the satisfaction of the responsible authority such that no direct light is emitted outside the boundaries of the subject land.

Prior to occupation of development details of the proposed fencing of the site must be provided to the responsible authority.

All activities associated with the construction of the development permitted by this permit must be carried out to the satisfaction of the responsible authority and all care must be taken to minimise the effect of such activities on the amenity of the locality.

Prior to the commencement of development, a schedule of the proposed materials and colours to be used for the building, including samples, shall be submitted to and approved in writing by the responsible authority.

Subject to any staging plan approved under Condition 1, before the use or occupation of the development starts, the area(s) set aside for the parking of vehicles, access lanes and pedestrian footpaths as shown on the endorsed plans must be:

(1) constructed;

(2) properly formed to such levels that they can be used in accordance with the plans;

(3) surfaced with an all-weather-seal coat;

(4) drained;

(5) line marked to indicate each car space and all access lanes;

(6) kerbs to separate car parking areas from footpaths, i.e. no wheel stops;

(7) clearly marked to show the direction of traffic along access lanes and driveways to the satisfaction of the responsible authority;

(8) designed by be compliant with Australian Standard AS/NZ 2890.1:2004;

(9) comply with disabled parking bays - Australian Standard AS/NZ 2890.6:2009; and

(10) provided with public lighting in accordance with AS/NZ 1158.0-2005/Amdt 2-2010 minimum light category P11/P12 and the fitting are to minimise spill lighting onto neighbouring property (including road reserves) in accordance with AS/NZ 4282-1997.

Car spaces, access lanes and driveways must be kept available for these purposes at all times.

Prior to the commencement of works plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and then will form part of the permit. The plans must be drawn to scale with dimensions.

Before the use or development is commenced, the owner or applicant must provide onsite surface and stormwater detention to pre-development levels in accordance with plans and specifications to the satisfaction of the responsible authority.

Allowable Discharge: Q5 = 33 l/s per Hectare, Q100 = 75 l/s per Hectare.

Prior to the commencement of use, drainage works must be constructed in accordance with plans approved by the responsible authority in condition 18 above.

Before the development starts, the owner or developer must submit to the responsible authority a written report and photos of any prior damage to public infrastructure. Listed in the report must be the condition of kerb and channel, footpath, seal, street lights, signs and other public infrastructure fronting the property and abutting at least two properties either side of the development. Unless identified with the written report, any damage to infrastructure post construction will be attributed to the development. The owner or developer of the subject land must pay for any damage caused to any public infrastructure caused as a result of the development or use permitted by this permit.

Prior to commencement of works the owner or applicant must submit a 'Construction Management Plan' (CMP) for approval by the responsible authority.

This plan shall include, but not be limited to:

(1) a site specific plan showing proposed erosion and sedimentation control works;

(2) techniques and intervention levels to prevent a dust nuisance;

(3) techniques to prevent mud and dirt being transported from the site to adjacent streets; and

(4) the protection measures taken to preserve any vegetation identified for retention.

During construction works associated with the development, the owner or applicant must employ and provide the protection methods contained in the CMP to the satisfaction of the responsible authority.

Construction management - Notification of permit conditions:

(1) Before works start, the permit holder must advise all persons undertaking the vegetation removal on site of all relevant conditions of this permit.

(2) In order to offset the removal of 0.856 hectares of native vegetation approved as part of this permit, the applicant must provide a native vegetation offset that meets the following requirements, and is in accordance with Permitted clearing of native vegetation - Biodiversity assessment guidelines and the Native vegetation gain scoring manual:

• (a) The offset must:
  • (i) contribute gain on 0.140 general biodiversity equivalence units;
  • (ii) be located with the North Central Catchment Management Authority boundary or City of Greater Bendigo municipal district; and
  • (iii) have a strategic biodiversity score of at least 0.433.

(3) Before any native vegetation is removed, evidence that an offset has been secured must be provided to the satisfaction of the responsible authority. This offset must meet the offset requirements set out in this permit and be in accordance with the requirements of Permitted clearing of native vegetation - Biodiversity assessment guidelines and the Native vegetation gain scoring manual. Offset evidence can be either:

• (a) a credit register extract from the Native Vegetation Credit Register (Third Party Offset); or
• (b) a security arrangement, to the required standard for the offset site or sites; including a 10 year offset management plan to the satisfaction of the Department of Environment and Primary Industries and approved by the responsible authority. Every year, for ten years, after the responsible authority has approved the offset management plan, the applicant must provide notification of the management actions undertaken towards implementing the offset management plan, to the department. An offset site condition statement, including photographs must be included in this notification (First Party Offset).

(1) a type 'BAR' and 'BAL' treatment must be provided on the Strathdale-White Hills Road* intersection. The BAR and BAL treatment must be in accordance with the 2009 edition of the AustRoads Publication "Guide to Road Design, Part 4A - Unsignalised and Signalised Intersections". The treatment must incorporate sealed shoulders (full depth) as shown in Fig. 7.5 (BAR) and Fig 8.2 (BAL) of the above publication for a 60 km/h speed zone; and

(2) all disused or redundant vehicle crossing must be removed and the fencing, verge and naturestrip reinstated to the satisfaction of and at no cost to VicRoads.

*Strathdale-White Hills Road is otherwise known as Rohs Road.

All security alarms or similar devices installed on the land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.

No noise from external sound amplification equipment or loudspeakers for the purpose of announcement (including 'call to prayer') broadcast, playing of music or similar purpose, must be emitted beyond the boundaries of the site.

Prior to the commencement of the use, a Green Travel Plan must be prepared to the satisfaction of the responsible authority. The Plan must be prepared by a suitably qualified person and must encourage the use or non-private vehicle transport modes by the occupiers of the land. The plan must address, but is not necessarily limited to the following:

(1) a designated 'manager' or 'champion' responsible for co-ordination and implementation;

(2) provision of Public Transport maps, timetables and/or real time information of nearby services;

(3) details of GTP funding and management responsibilities, including ongoing monitoring and review; and

(4) include provisions to be updated not less than every 5 years.

When approved, the GTP will form part of the permit and the monitoring and review requirement of dot point (3) must be submitted to the COGB on an annual basis for appropriate auditing.

This permit will expire if one of the following circumstances applies:

(1) the development is not started within two years of the date of this permit; and/or

(2) the development is not completed within eight years of the date of this permit.

[1] Statement of Dean Bellingham dated 9 September 2014; Statement of Melinda Cassidy dated 11 September 2014; Statement of Michelle Cole dated 10 September 2014; Statement of Kerry Cotterill dated 11 September 2014; Statement of Monika Evers dated 11 September 2014; Statement of Glenys Greaves dated 9 September 2014; Statement of Noel Hartwell dated 9 September 2014; Statement of Karen and Simon Kalms dated 8 September 2014; Statement of William Macqueen dated 9 September 2014; Statement of Carrie Mcrcrie dated 9 September 2014; Statement of Carolyn Peat dated 9 September 2014; Statement of Don Ride dated 9 September 2014; Statement of Paul Sloan dated 9 September 2014; Statement of Shannan Vize dated 11 September 2014; Statement of Brian Woods dated 5 September 2014; Statement of Lynn Young dated 9 September 2014; Statement of Margaret Mills dated 31 August 2014.

[2] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, 329 [147] (Kiefel J; Crennan J agreeing); Mond v Perkins Architects Pty Ltd [2013] VSC 455 [10]; Von Hartel v Macedon Ranges SC [2014] VSC 215 [50].

[3] See Jason Pizer and Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters 5th edn, 2015) 130 [VCAT.42.80] ('Pizer and Nekvapil') referring to Rimanic v Business Licensing Authority [2010] VCAT 1997 [27]; Von Shrenk v Dental Practice Board of Victoria [2008] VCAT 2302 [7]; Benvi International Pty Ltd v Business Licensing Authority [2014] VCAT 106 [21]-[25].

[4] Submissions of group applicants dated 19 December 2014 ('group applicants' first written submissions') [22]-[23].

[5] See Aussie Invest Corp Pty Ltd v Hobsons Bay CC [2004] VCAT 2188; (2004) 22 VAR 212, 213 [7].

[6] [2002] VSCA 132; Bringing Contempt Proceedings under Section 137 of the Victorian Civil and Administrative Tribunal Act 1998.

[8] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6]; Isbester v Knox City Council [2015] HCA 20 [21].

[9] Hoskin v Greater Bendigo CC & Anor [2015] VCAT 1125.

[11] Practice Day Application dated 25 November 2014, [H].

[12] Evers v Greater Bendigo CC [2014] VCAT 816.

[13] Group applicants' first written submissions [19].

[14] [sic] correct reference is paragraph 15(a).

[15] See Victorian Civil and Administrative Tribunal Rules 2008 (Vic) r 4.08(1).

[17] [2011] VSCA 101.

[19] [2012] VSCA 69; (2012) 35 VR 389, 396 [24].

[20] Pizer and Nekvapil [VCATAS1.62.10].

[21] Group applicants' first written submission [49].

[23] Group applicants' first written submissions [70].

[24] Planning scheme cl 17.02-1 and 19.02-4.

[28] Planning scheme cl 11.12-4, 21.05-3, 21.09-1 and 21.09-4.

[30] (2010) 28 VR 141.

[32] Rutherford v Hume CC [2014] VCAT 786 ('Rutherford'); Director of Housing v Sudi [2011] VSCA 266 [94], [121]-[127]; Bare v Small [2013] VSC 129 [45]; PJB v Melbourne Health & Anor (Patrick's case) [2011] VSC 327 [123]; See also Swancom Pty Ltd v Yarra CC [2009] VCAT 923 [21]-[22]; Smith v Hobsons Bay CC [2010] VCAT 668 [6]-[11].

[34] New Century Developments Pty Limited v Baulkham Hills Shire Council ('New Century Developments') [2003] NSWLEC 154.

[35] Ibid [65]-[69] (citations omitted).

[36] [sic] correct reference is Principle 10.

[37] Boydell Pty Ltd v Yarra CC & Ors [1998] VCAT 564.

[38] Minawood Pty Ltd v Bayside CC [2009] VCAT 440 [39].

[39] Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 725.

[40] See also New Century Developments [53] applying Broad v Brisbane City Council & Anor (1986) 59 LGRA 296 and [60] applying Dixon v Burwood Council [2002] NSWLEC 190 [66]; Johnson v Greater Shepparton City Council [2005] VCAT 1432 [9]; Tabcorp Holdings Pty Ltd v Moreland City Council [2004] VCAT 693 [13]; and Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505.

[43] [1989] NSWLEC 48; (1989) 130 LGERA 30.

[45] New Century Developments [60] (citations omitted).

[47] Ibid [61]-[62], [67], [69].

[50] [2009] NSWLEC 1171.

[53] [2013] VSC 505.

[54] Ibid [45]-[47] (citations omitted).

[55] The process is described in Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27.

[57] Submission of Mr Febriyanto dated 12 November 2014.

[58] Town planning expert evidence of Colleen Peterson of November 2014 [5.2]-[5.3].

[60] Shell Company of Australia Ltd v City of Frankston (1983) 8 APA 126 ('Shell'). See also Brighton Secondary College v Bayside CC [2005] VCAT 1459; Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675.

[62] See Melbourne Sae Soon Church Inc v Whitehorse CC [2009] VCAT 1698 [17]; South Eastern Samoan Assembly of God Inc v Greater Dandenong CC [2007] VCAT 1026 [18]; Family Matters v Brimbank CC [2006] VCAT 1541.

1. [64] Boydell Pty Ltd v Yarra CC & Ors [1998] VCAT 564.

[65] Minawood Pty Ltd v Bayside CC [2009] VCAT 440 [39].

[66] In Willrath v Keysborough Turkish Islamic v Cultural Centre Inc. [2013] VCAT 996 [7], the Tribunal noted that 'steeples, towers and minarets are a feature of European, Australian and Middle Eastern urban rural landscapes'.

[67] Department of Environment and Primary Industries, September 2013.

[68] Group applicants' first written submissions [50].

[69] Affidavit of Julie Hoskin sworn on 20 February 2015, Exhibit JH-5.

[70] See Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 [30]-[35], referring to Rozen v Macedon Ranges Shire Council [2010] VSC 583; (2010) 181 LGERA 370, 408 [171] and Knox City Council v Tulcany Pty Ltd [2004] VSC 375.