Protect Penrith Action Group Inc v Penrith City Council and Ors

Protect Penrith Action Group Inc v Penrith City Council and Ors - [2015] NSWLEC 159 - NSWLEC 2015 case summary — Zoe

[12]

Introduction

It is clear from the structure of Dr Stubbs' report that she has responded to the instructions given to her by answering three questions that were posed in her instructions and providing what might be regarded as a preliminary (and provisional) outline of the structure of a social assessment report such as might have been required to be undertaken for these two developments.
The first step to be taken in my consideration of her report is an examination of the introduction to her report followed by an examination of each of the questions that were posed for her consideration and her response to each of them. The questions to which she has responded were those which were put to her on behalf of the Applicant and their terms were not settled, in any sense at all, through any "in court" process in which I, or the legal representatives of the other parties to each of the proceedings, participated.
The fact that her instructions on behalf of the Applicant were the exclusive responsibility of those providing them is a matter of fundamental significance, given the comments that follow concerning not only the questions posed for her consideration but of her responses to them.
The three questions posed for her consideration were in the following terms: 1. What issues would a party seeking development consent for a place of worship in general, and a mosque in particular, have to consider as relevant to a social impact assessment for that development? 2. What issues would the parties then consider to determine whether a social impact assessment should be carried out or not? 3. If it is decided to carry out the social impact assessment, what issues would it consider and how would that be done?
In addition to being asked to answer the three questions set out above, Dr Stubbs also noted that: I have been provided with notices of determination for both developments and with parts F3 and F5 of Penrith DCP 2014.
I return, later, to the contextual relevance of this observation by Dr Stubbs.

[13]

The introduction to Dr Stubbs' report

Dr Stubbs noted in her introduction: Each of the questions is addressed below. This is followed by a preliminary assessment of the potential social impacts of the proposed mosques in their localities. This indicates whether a social impact assessment is likely to be required with respect to the application for the mosques. It is my opinion that it would be prudent to conduct such an assessment given the nature and likely perceptions of the proposed development, and the physical and social context within which the mosques are located. Given the size and nature of the proposed development, there is a reasonable risk of amenity impacts as discussed below, including those related to physical nature of the development, and related to community expectations, social cohesion, and the potential for intercultural conflict. The locality of the proposed development also indicates that there may be some adverse amenity impacts on the mosque itself that may need to be fully assessed and mitigated. There are also likely to be significant concerns from some sections of the community about safety and security issues associated with the mosque and its users, as discussed below, regardless of whether there is an evidence base to such community concerns.
Two matters warrant being noted with respect to these comments in Dr Stubbs' introduction.
First (going to the fundamental basis of the subsequent material she has written) is that these remarks make it clear that she has considered each proposed development on the basis that it is a mosque and not simply a place of public worship. This is entirely clear from the terms of that which I have quoted above.
Second, the observations that are set out in the fourth of the paragraphs quoted (suggesting that social impact assessment would be appropriate for a mosque arising from safety and security issues held by some sections of the community regardless of whether there is any evidentiary basis for such community concerns) is expressly contrary to the established legal position as summarised by Lloyd J, in New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; 127 LGERA 303 at 316, where he said: 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 s79C(1) of the EP&A Act.
Dr Stubbs' introductory remarks continued, relevantly, saying: Finally, the likelihood of adverse public reaction to the proposed development is likely to be sufficient to warrant preparation of a social impact assessment, including to put in place positive mitigation strategies in the event of an approval, in order to reduce future conflict. This would include the opportunity for proactive community building and community education about the reasonable expectations of the operation of a mosque, and the Islamic community. If properly addressed through conditions of consent, this could lead to positive intercultural outcomes from a potentially conflictual situation.
It is clear that those aspects of that which could be expected, reasonably, to occur at either site or be feared, no matter how irrationally, to be expected to occur at the site are, in the context within which she has written, entirely and impermissibly coloured by the fact that the form of worship proposed for each of the places of public worship is to be as a mosque to serve the Islamic community.
However, it is also necessary, for these interlocutory purposes, to consider not only the terms of her responses to the questions but also, separately, the terms of the questions themselves.

[14]

Question 1

As set out immediately above, the first question posed to Dr Stubbs was in the following terms: What issues would a party seeking development consent for a place of worship in general, and a mosque in particular, have to consider as relevant to a social impact assessment for that development? (emphasis added)
The emphasis that I have added demonstrates starkly the fact that the questions' author was conflating the nature of the proposed worship with the proposal for development consent for a place of public worship. This, as earlier observed, is simply impermissible.
To the extent that the incorporation of the emphasised words colours (as their inclusion self-evidently does) that which is subsequently set out in Dr Stubbs' discussion of the questions posed to her means that that discussion has no utility whatsoever in providing a foundation for exercising a discretion to permit the adducing of expert evidence - expert evidence which, if permitted, would be required to be confined to the process appropriate to be undertaken by the Council to the precise end of considering an application for a place of public worship simpliciter and not for an application for approval of a place of public worship that was to be a mosque.
The posing of this question to her in this form clearly demonstrates that whoever drafted it simply did not understand, or chose to ignore, the distinction well-known in planning law about the difference between use and purpose (as canvassed, comprehensively, by Preston CJ in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400).
In addition to the failure to deal with these proposed developments simply as places of public worship and setting aside the fact that the worship is as a mosque, the first question addresses solely what would be the appropriate consideration for a party seeking development consent.
This is a matter of irrelevance, as what is being examined in these proceedings has nothing to do with the actions or inactions of the development proponent for either place of public worship but with the processes of the Council in accepting, considering and determining to approve the development application for each place of public worship.
Question 1 and the response to it are irrelevant to the present proceedings and whatever might be said in response to it can be of no assistance to the Court in the consideration and determination of either Class 4 application.
It is, therefore, unnecessary to address the matters that are set out by Dr Stubbs in her response to this first question. It is pertinent to note, briefly, that a number of the matters to which she refers are matters properly, at least initially, falling within areas of expertise other than those of social impact assessment.
However, to the extent that noise or traffic/parking issues (or a combination of them), for example, might give rise to issues of social impact, the matters to be considered are confined to proper planning concerns.
As to acoustic impacts, it matters not whether the sounds summoning the faithful to prayer arise from the pealing of the Angelus bell or from the call of the muezzin, it is the technical attributes of the noise (its sound power, its tonality and the time at which it is proposed to be emitted being amongst them) that are relevant, not the motivation for its emission.
Similarly, it matters not whether parking/traffic concerns arise as a consequence of celebration of the festival of Eid al-Fitr at the end of Ramadan or because of celebrations of the birth of the baby Jesus at Christmas. It is the extent of and impacts from the traffic/parking that are relevant not the nature of the event giving rise to them.
Impacts of these types are theistically neutral and the nature of the religious activity giving rise to them is irrelevant.

[15]

Question 2

As earlier noted, the second question to which Dr Stubbs turned her attention was a question posed to her in the following terms: What issues would the parties then consider to determine whether a social impact assessment should be carried out or not?
This question, although using the words "the parties", deals with matters potentially germane to the activities of a consent authority rather than those of a development proponent or a development proponent and a consent authority conjointly. That which Dr Stubbs wrote in response to this question was in the following terms: The following types of considerations would determine whether a social impact assessment is required. A determination of whether an assessment would be required would not require all of these issues to be present. Rather, the presence of one or more of these issues may be sufficient to warrant prudent consideration of a social impact assessment. ●The significance or seriousness of potential adverse social impacts in the locality; ●The degree of risk associated with potential adverse social impacts in the locality; ●The 'impact history' of the proposed locality, including any social or cultural sensitivities that would make it more vulnerable to adverse social impacts; ●The nature and proximity of sensitive land uses in the locality; ●The cumulative impacts of the development, including other relevant approvals or developments that may intensify any adverse impacts of the approval of this mosque; and ●The nature, extent and quantum of community concerns and/or likely objections regarding the proposed mosque. It is likely that many of these issues would not be evidence without at least a preliminary assessment of the potential social impacts of the proposed development.
However, the defect in regarding this commentary as providing utility in a broad assessment process is the impermissible taint contained in the fifth and sixth dot points by suggesting that a consent authority should have any regard to the fact that each of these development proposals should not be treated solely on a theistically neutral basis but rather on the basis that the form of worship is to be as a mosque. Doing so imports a fundamentally impermissible flavour to the consideration and, in my assessment, removes any broader utility of these comments.

[16]

Question 3

As earlier set out, the third of the questions to which Dr Stubbs was requested to respond was in the following terms: If it is decided to carry out the social impact assessment, what issues would it consider and how would that be done?
Much of that which is set out in response to Question 3 could, at a level of generality, be considered to be a description of that which Dr Stubbs might be proposing should have been addressed through the Council's processes for each of these proposed developments.
However, that is not what her response, on its face, does. The preambular element to the question, "If it is decided to carry out the social impact assessment …", makes it clear that this question arises in a context of being necessarily conditional on a particular response (concluding that such a social impact assessment is necessary) to the first and second questions.
As the first and second questions are tainted, impermissibly, there is little utility in considering the detail of her response to this question even had it been relevant to determination of matters properly before the Court in these two Class 4 proceedings.
However, it is also appropriate to note that, in the eighth subsidiary dot point to her fifth primary dot point in response to this question, Dr Stubbs wrote: Safety or security issues that might potentially arise from the presence of more radical groups among the mosque users, and strategies for addressing this if required…
Such a suggestion is based on the identification of each of the proposed developments as a mosque. What is implied as potentially arising from that may well be a matter for consideration by other authorities (but I am not to be taken to be suggesting that it should be such a consideration in either of these instances) but is certainly entirely outside the scope of a proper assessment against the necessary mandatory criterion engaged by the leave sought pursuant to each of these motions - being of matters of "the likely impacts of that development, including … social … impacts in the locality" (as required by s 79C(1)(b) of the Planning Act) of a place of public worship.

[17]

Dr Stubbs' preliminary assessment

As earlier noted, in her introduction to her report relied upon for these motions, Dr Stubbs has provided what she describes as "a preliminary assessment of the social impacts of the proposed mosques in their localities". In her document, this follows the conclusion of her answer to Question 3 discussed above. Although described by Dr Stubbs in the terms set out, this element of her report is, in fact, entitled "Appendix A: Framing the Assessment of Social and Economic Impacts".
It is unnecessary to set out much of the content of this document as it does, in fact, almost exclusively deal with broad framework issues for such assessments. However, does so under the following broad headings: Overview Considerations under the EP&A Act Best practice in Social Impact Assessment Identification of 'Locality' Penrith DCP 2014
It is, to start, pertinent to set out the short paragraph that comprises the content under the heading "Overview". It is in the following terms: The assessment of relevant social and economic impacts is undertaken within the framework provided by the Environmental Planning and Assessment Act 1979 (NSW), relevant case law, Clause C of Appendix F5 Technical Information of Penrith Development Control Plan 2014, and good practice in impact assessment.
In addition, under the heading "Penrith DCP 2014", the concluding element of Appendix A, Dr Stubbs wrote: Table F5.1 in Appendix F5 Technical Information of Penrith Development Control Plan 2014 sets out possible social impacts to be considered when identifying the issues.
To the extent that Dr Stubbs sets out broad framework matters for social impact assessments, they are unexceptional, although they do not provide, in any functional way, any guidance of what might be the appropriate process or requirements of consideration by a consent authority of social impacts of a development proposal.
However, to the extent that this document might have been anticipated by the Applicant to provide the foundations for a document that might have been sought to be relied upon in the substantive proceedings, its identification of parts of the 2014 DCP as being amongst the foundational elements of such a document demonstrate that such a document was likely to be fundamentally flawed and of limited (if any) utility in the substantive proceedings, no matter what other defects might or might not have been apparent in such a finalised document. The reasons for this are set out below

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