HOUSE OF PEACE PTY LTD & ANOR v BANKSTOWN CITY COUNCIL

HOUSE OF PEACE PTY LTD & ANOR v BANKSTOWN CITY COUNCIL - [2000] NSWCA 44 - NSWCA 1999 case summary — Zoe

[17]

1 MASON P: At issue in this appeal is the right of the appellants to rely on development consent given in 1954 for a "church" as planning authority to conduct a mosque. 2 The first appellant owns land at 11-13 Helen Street, Sefton. On it stands a small building of about 100m² that was erected by the Presbyterian Church. Development consent was given to the Presbyterian Church of New South Wales in 1954 for the "erection of brick church and office". The building erected shortly thereafter was used as a Presbyterian church for about 40 years. Since June 1995, the land has been occupied by the second appellant and used as a Muslim mosque. 3 The essential dispute is whether the appellants require fresh development consent under the current Bankstown Planning Scheme Ordinance. The appellants claim that they are entitled to rely upon the 1954 Consent given pursuant to the County of Cumberland Planning Scheme (CCPS). They rely upon s109B of the Environmental Planning and Assessment Act 1979 (the EPA Act) which stipulates that nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. 4 Use as a mosque is permissible with the consent of the Council under the Bankstown Planning Scheme Ordinance (BPSO) as a "place of public worship". In 1996 the Council gave conditional consent for twelve months. That period had expired when these proceedings were commenced in the Land and Environment Court in April 1998. 5 The Council obtained declarations that the appellants' use of the land for an Islamic mosque without the Council's consent was a contravention of the EPA Act; and that such use was not authorised, as the appellants claimed, by the terms of the 1954 Consent. 6 The gazettal of State Environment Planning Policy No 4 - Development Without Consent (Amendment No 10) on 3 December 1999 qualifies the planning situation to a degree, but it does not remove the dispute. The Amendment inserts a new clause 8A as follows: 8A Places of public worship

[24]

17 In the present case, Sheahan J referred to the evidence in the Moslem Alawy Society Case and in the present case about the actual usage of the site by the appellants. In this context he made the following findings of law and fact (par 66): There is no doubt, at law or in fact, that a mosque is a place of public worship, as is a church, but the evidence in Canterbury and here indicates that the pattern of behaviour comprising such public worship is very different from that which one would expect of a Christian denomination, such as the neighbours of the subject land had come to expect between 1954 and 1995. 18 His Honour explained the finding by summarising (at par 69) the evidence relating to the actual use of the building during the time when it was used by the Presbyterian Church and the time when it was used as a mosque: ¨ As a Presbyterian church, the building attracted modest crowds, but only on Sunday mornings and for occasional weddings and funerals on other days. Its estimated capacity is 73. ¨ As a mosque, the building attracts between 20 and 50 people five times each day, at various times between 5:00 am and shortly after sunset, for short periods of 15-20 minutes. On Friday at lunchtime, up to 200 people might attend, causing the streets to be full of cars. At least twice a year, there are large functions within the building and in the surrounding yard when major Islamic festivals were celebrated. It is only on these occasions that a microphone is used, for approximately one hour after 8am. 19 This comparison was done in considering whether use as a "church" and use as "[an]other place of public worship" such as a mosque might properly have been conceived in 1954 as differences of significance. 20 After referring to the discussion about characterisation by Kitto J in Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535, Sheahan J held that the approval for a "church" connoted use by Christian denominations and that it was not wide enough to embrace use as a mosque. His Honour recognised that two of the dictionaries included a definition of "church" that extended to a "place of public worship" of any religion, including an Islamic mosque. The nub of his reasoning as to the meaning of "church" appears in the following passage (par 80 of the judgment): The question is not whether a church or a mosque is a place of public worship, but whether a mosque which embraces non-Christian worship, and indeed may exclude Christian worship, can be considered as a "church". Even the Macquarie does not define a church as a mosque and an ordinary person would not have resort to the OHP (the "Historical Oxford"). The regular dictionaries in common usage by ordinary citizens make it clear that historically and presently a non-Christian place of public worship would not normally be connoted by the word "church".

[26]

Some general considerations 22 This dispute arises in a context, planning law. Several matters follow. 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 (1983) 51 LGRA 79 at 82). 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. Notions of an established Church or established religion had passed away well before the end of the nineteenth century, not that Australians were blind to religious or sectarian differences. Even in 1954 Australia was a multicultural society, albeit much less so than now. 23 Emphasis upon the use as distinct from the person using the land reminds that a consent operates in rem. In an oft-cited dictum, Else-Mitchell J described a development consent as "not personal to the applicant but enur[ing] for the benefit of subsequent owners and occupiers, and in some respects … equivalent to a document of title" (Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324). In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293, Stephen J described a consent as "essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor". 24 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. This said, the physical structure and the activities from which it is designed may take its meaning from the organisation for whose use it was designed or created.

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The role of dictionaries 25 The primary judge's use of the dictionaries is criticised by the appellants as reflecting a search for a majority position and a preference for the narrower, less inclusive definitions over the broader if less generally used meanings. 26 It has been said that "words are only pictures of ideas on paper" (Isaacs J in Fell v Fell (1922) 31 CLR 268 at 276, citing Wilmot CJ in Dodson v Grew (1767) Wilm 272 at 278, 97 ER 106 at 108). Jackson J once remarked that "dictionaries are the last resort of the baffled judge" (Jordan v De George 341 US 223, 234 (1951)). 27 Nevertheless, dictionaries are frequently used, and this approach to statutory interpretation has support from the highest authority (see, eg State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 348). Few judges emulate Lord Wilberforce, who never used dictionaries for the purpose of determining the common understanding of words and shut his ears if they were referred to in court (see Bennion, Statutory Interpretation 3rd ed, 1997 p946). 28 A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose. I agree with the following remarks of Judge Randolph of the United States Court of Appeals for the District of Columbia Circuit ("Dictionaries, Plain Meaning, and Context in Statutory Interpretation" (1994) 17 Harv Jo L PP 71 at 72): …citing … dictionaries creates a sort of optical illusion, conveying the existence of certainty - or "plainness" - when appearance may be all there is. Lexicographers define words. Words in the definition are defined by more words, as are those words. The trail may be endless; sometimes, it is circular. Using a dictionary definition simply pushes the problem back.

[45]

Construing consents to determine the development authorised 37 How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to "what, objectively determined, it might be said the Council meant by the permission which it gave to the … predecessor [in title]". I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at par 23, it must speak according to its written terms, construed in context but having regard to its enduring function. Cases such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427 expound the textual interpretative principles involved. 38 Shire of Perth v O'Keefe is the locus classicus in relation to characterising the purposes of an existing use. It has also been applied to the issue of determining the scope of an extant development consent, which is a species of existing use rights (see eg ACR Trading, North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50). In Shire of Perth, Kitto J (at 535) distinguished between "the precise manner of use for [the identified] purpose" and "use generally for that purpose…. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities … but by asking what, according to ordinary terminology, is the appropriate designation for the purpose being served by the use of the premises at the material date". 39 Drawing upon this and other decisions, Kirby P stated the following three propositions in Boyts Case (at 59): 1. Defining the "existing use" depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the "use" broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus , attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.

[48]

41 The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later. 42 In the particular context of religious practice there is an additional reason for a liberal reading. I respectfully adopt and apply to the Consent what McHugh JA said in Moslem Alawy (1985) 1 NSWLR 525 at 544: 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": per Mason ACJ and Brennan J in Church of New Faith v Commissioner for Pay-roll Tax (1983) 154 CLR 120 at 130. 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. Two extreme submissions rejected 43 In its boldest aspect, the appellants' submission asserted that the declarations made by the Land and Environment Court effectively declared that it was unlawful for the appellants to use the brick church for the purposes of non-Christian worship. This does not do justice to the reasoning or order of the Court. Applying the same "logic", the decision below might be characterised as enforcing the hypothetical proposition that it is unlawful (at least without consent) to use the land as a school. All that has happened, if Sheahan J is correct, is that the appellants' use of the land has been found to fall outside the line demarcated by the proper scope of the 1954 consent. 44 I would also reject the Council's submission that the planning authority in 1954 should be taken to have chosen "church" in contradistinction to "chapel or other place of public worship" within the extended statutory definition. First, there is no evidence of this. Secondly, such an imputed choice ignores the overlapping nature of the definition. Thirdly, the Council is unlikely to have had any concern with the liturgy proposed to be adopted in an unbuilt structure on land the development of which was approved in general terms without addition of any relevant conditions. So much is conceded in the Council's submission that usage for any form of Christian worship would fall within the scope of the consent. 45 In rejecting the extreme version of the Council's "choice" submission, I am not suggesting that there is no relevance in the fact that the Consent is not expressed in the wider terms of "place of public worship". But I do not see this as determinative. In my view it would be an error to read the terms "church", "chapel" and "other places of worship" as hermetically sealed compartments. One hundred years ago in Britain "church" and "chapel" would have recognised a sharp distinction between buildings for the use of the Established Church and other branches of the Christian church (cf Attorney General, ex rel Bedfordshire County Council v Howard United Reformed Church Trustees [1975] QB 41 at 54). But this would not reflect modern Australian or even British usage even in 1954. It is obvious that the expression used "as a church, chapel or other place of public worship" is a composite expression in which each member takes some colour from its fellows (cf Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 190 CLR 181 at 192). The important point is that the expressed common feature is the notion of public worship. 46 It is highly unlikely that the Bankstown planners of 1954 ever dreamed that the building might be used for worship by Muslims. Before the late 1960s, with the revision of Australia's immigration policies and the outbreak of civil war in Lebanon, there was only a trickle of Muslim immigrants in Australia (see Gary G Bouma, Mosques and Muslim Settlement in Australia, AGPS 1994 chapter 4; Wafia Omar and Kirsty Allen, The Muslims in Australia AGPS 1996 chapter 5). But what follows from this historical fact? Even were it permissible to enquire as to the subjective intent of the Bankstown Council in 1954 (which it is not), one could not proceed on the basis of a choice to exclude non-Christians if that choice was not likely to have been adverted to. Furthermore, this would be to go behind the limited material available, ie the terms of the 1954 Consent itself. The Consent used a word of general and uncertain meaning ("church"). Cf Boyts Case ("warehouse"), Harris ("shop"), Parramatta City Council v RA Motors Pty Ltd (1986) 59 LGRA 121 ("car"). It remains to be construed on that basis.

[49]

Church life and the scope of the 1954 Consent 47 That which is to be construed, in the final analysis, is the 1954 Consent. This is not to deny the relevance of construing that document having regard to the scope of the power available to the Council in 1954 (as the appellants particularly contend) and the environmental impacts inherent in the particular building application lodged by the Presbyterian Church of New South Wales (as the respondent particularly contends). 48 The appellants challenge Sheahan J's interpretation of the 1954 Consent by submitting that his Honour failed to give effect to the broader dictionary definitions some of which encompassed a mosque or temple within "church". The appellants cite judicial statements recognising that in some contexts "church" (in the building sense) may be used generically to refer to a building for public worship (Thames Borough Council v Congregational Church Trustees [1929] NZLR 525 at 527) without definition as to the liturgy taking place or confining it to Christian liturgy (cf Church of Christ (Non-Denominational) Inc v Minister for Territories and Local Government (1985) 10 FCR 152 at 155-6). 49 The appellants do not suggest that his Honour misunderstood the task before him when he drew a comparison as to the nature and extent of the use of the land during the Presbyterian era and the Islamic era that commenced in June 1995. But what does it really show as to the all-important amenity distinctions? Actual use of a particular Christian church may alter significantly over time. Service times may change, congregations may swell, and liturgies and other events may become noisier or otherwise affect the amenity of the neighbourhood. More parishioners may use motor vehicles to attend. 50 American law relating to the meaning of "church" in a zoning context is instructive (see generally 101A Corpus Juris Secundum Zoning and Land Planning s134; Annot 62 ALR 3d 197). The definition generally reflected in the case law is that of a building set apart for public worship (62 ALR 3d 197 at s4). Non-Christian worship is included (see, eg In re McCusker 62 NYS 201 (1900) (synagogue); Community Synagogue v Bates 154 NYS 2d 15 (synagogue); State of New Mexico v Vogenthaler 548 P 2d 112 (1976)). It is hardly surprising that this attitude is influenced by the constitutional principles prohibiting interference with the free exercise of religious profession and worship. For reasons given above such principles should also inform the task of an Australian court. 51 There is also recognition in the American cases that "the concept of what constitutes a church has changed from a place of worship alone, used once or twice a week, to a church used during the entire week, nights as well as days, for various parochial and community functions" (Unitarian Universalist Church of Central Nassau v Shorten 314 NYS 2d 66, 71 (1970)). The same can be said of modern Australian church life. What is encompassed in the modern idea of "church" is not boundless, but it is broad and protean. It has been ever thus, as any study of the history of Christianity would reveal. Some branches of the Christian Church celebrate the sabbath on Saturday. Practices, liturgies and "church activities" have changed and developed. It is an invidious but necessary judicial task to draw lines, but this is a field where a liberal attitude should prevail, especially one that recognises that things change and develop. 52 The Council's concession that any form of Christian liturgy is within the scope of the 1954 Consent entails recognition that a very wide range of religious observances (and by implication environmental or amenity impacts) would be embraced. Some of these could be guaranteed to take literally the biblical injunctions to "make a joyful noise to the Lord" (Psalm 100 v1. See also Psalms 66, 150.) For most Christian denominations expansion is a goal. Accordingly, the Council's conceded permissible use could embrace more intensive and frequent use of the site than might be expected with a declining and possibly aging congregation of mainstream Protestants. 53 What then, in ordinary terminology, is encompassed in a 1954 approval of use as a "church", when that consent is construed according to the liberal and generic interpretation of that word? The dictionaries do not speak with one voice. Some evidence a broader (non-Christian) meaning. Some are less obviously relevant to Australia in the 1950s. None seek to view the term through the refractive prism of a town planning context. 54 The 1954 Consent was not concerned to ensure that liturgy remained orthodox according to Christian standards. It was concerned to authorise the use of a building inter alia as a "church", the word being apt to the proposed building but illustrative of the genus of a place of public worship being the relevant purpose in the CCPS. In my view, in the operative planning law context the preferable conclusion that "church" was used in a sense in which the dictionaries indicate was open to use it, namely the sense of a place of public worship. The mosque fits this description. 55 I would uphold the appeal, set aside the declarations and orders made by Sheahan J and in lieu thereof dismiss the application to the Land and Environment Court with costs in this Court and the Court below. 56 STEIN JA: I agree with Mason P. 57 GILES JA: I agree with Mason P. ***************

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