Rutherford & Ors v Hume CC [2014] VCAT 786 | Case summary

Rutherford & Ors v Hume CC [2014] VCAT 786 | Case summary | Zoe

[27]

The Al Sadiq Foundation Ltd[2] (Foundation) seeks to establish an Islamic mosque and related facilities on its land in Kyabram Street, Coolaroo. The background of Foundation members is Lebanese, and the mosque is intended as a mosque for the Shia branch of Islam. There is currently no mosque serving the Shi'ite Muslim population in the area, with most mosques in Melbourne being for the Sunni branch of Islam.
Significantly, the mosque is proposed to be sited on land immediately adjacent to the St Mary's Ancient Church of the East (St Mary's Church). The church congregation comprises mainly people of Assyrian background, many of whom have fled violence and human rights abuses in Iraq where the perpetrators were Islamic extremists. St Mary's Church is the only church in Melbourne for followers of the Ancient Church of the East - a small but very particular Christian denomination headquartered in Iraq and that separated from the broader Assyrian Church of the East in the 1960's.
Hume City Council (Council) received over a thousand objections to the proposal on a variety of grounds. These included grounds not related to the proximity of the existing church, but many objectors did raise this issue. In August 2013, the Council resolved to grant a planning permit subject to conditions.
John Rutherford and nine other joint applicants for review[3] (Rutherford group) are members of the Broadmeadows Progress Association, although the application to the Tribunal is brought in their own names. The Rutherford group seek a review of the Council decision to grant the permit. Initially, the review was sought on a number of broad grounds, including traditional planning grounds such as traffic and parking impacts. At the hearing, the grounds for review were limited and recast to just two grounds; namely that the proposal, if permitted:
- would have a significant detrimental impact on the church community; and
- would diminish the safety and amenity of the area.
The Rutherford group essentially contends that the mosque and church are incompatible uses that should not be located next to each other. The proceeding thus raises sensitivities and social issues not commonly addressed in planning disputes. It also raises the requirement in the Planning and Environment Act 1987 that, in considering a permit application, a responsible authority (and this Tribunal on review) must consider any significant social effects and economic effects which it considers the use or development may have. The Rutherford group contends that siting the church and mosque together would have a significant social effect. In particular, they contend that members of the St Mary's Church congregation would be affronted by the location of an Islamic mosque next door to their church, and this may stop their attendance at the church. It would remind them of their past persecution, and prevent their enjoyment of the church as a place of refuge where they can exercise their spiritual belief within a community with people of similar background and faith. The Rutherford group contends that St Mary's church would be forced to close, with a consequential significant social effect on the community as a whole.
Significantly, neither the St Mary's Church nor its leaders are objector parties in the proceedings, although Archdeacon Hirmiz and a member of the congregation were called by the Rutherford group to give evidence. We were told that only one member of the Rutherford group is a member of the church congregation, but no evidence or submissions were provided as to that person's particular involvement with the church, or any special concerns over and above the general issues raised by the group.
The key issues or questions for our determination arising from the above are:
- What general principles (if any) apply to an assessment of the compatibility of locating two places of worship adjacent to each other? To what extent is the particular faith or denomination of the place of worship relevant to this assessment?
- Will the use and development of the proposed mosque create a significant social effect through its location adjacent to St Mary's Church? If so, how should this be assessed and dealt with, within the context of this planning permit application?
- Will the proposal cause inappropriate amenity impacts?
- Are there any other planning reasons that might warrant a refusal to grant a planning permit?

[29]

The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. We must do so according to law and having regard to the relevant provisions, policies, and decision guidelines in the Planning and Environment Act 1987 and the Hume Planning Scheme, and not according to our own particular likes or dislikes, nor those of particular objectors or others in the community.
Having regard to this, and having considered all submissions and evidence, we have decided to affirm the Council's decision, and direct the grant of a planning permit. Although not a substitute for the more detailed reasons that follow, our reasons for granting the permit may be broadly summarised as follows:
- The Hume municipality has a diverse multi-cultural, multi-faith society. In Coolaroo, there is a relatively even population split between Christians and Muslims.
- All faiths are entitled to facilities and services to meet their needs, including places of worship to practise their faith. For planning purposes, a 'place of worship' does not discriminate between religions, nor is it incompatible (in a town planning sense) for one place of worship to be sited adjacent to another.
- Religious freedom and equality is also enshrined in the Charter of Human Rights and Responsibilities Act 2006, to which planning decision-makers must have regard.
- Although many members of the congregation of St Mary's Church have suffered persecution overseas at the hands of Islamist extremists, and have sought refuge and solace in their church, there is no evidence of provocation or violence that will occur if a mosque is located on adjacent land.
- The objectors did not provide any formal or independent social impact assessment to substantiate their claims of a significant social effect or psychological disturbance to members of the church, as would ordinarily be required in a case such as this.
- There may be a significant social effect if some members of St Mary's Church are so affronted by the presence of the mosque that they choose not to attend the church, or that sufficient members leave to the extent the church closes. It is acknowledged that some members of the church will take time to adjust, and will find it difficult to adjust. However, this is a voluntary and reversible social effect.
- Any significant social effect to the church community or the broader community through the development and use of the mosque is, in any event, outweighed by other social and economic impacts and other planning considerations.
- Whilst the followers of one religion may have fled war or persecution overseas, at the hands of extremists from another religion, it would be a poor outcome for planning in Victoria if town planning decisions were made to achieve an outcome that effectively replicates in Australia those same divisions, fear and distrust. Town planning decisions should not set out to separate people, or the use of land, based on ethnicity or religion.
- Town planning decisions should reflect Australia's rich and proud history of welcoming all religions, and provide a society where people of different faiths can live, work and worship side-by-side, without fear of threats, intimidation or violence.
- There are no adverse amenity considerations or other planning considerations that justify a refusal of the permit.
In reaching our decision, we have generally affirmed the decision of the Council, for similar reasons to the Council. Indeed, we think this is a case where the Council should be commended for its careful analysis of difficult and sensitive issues, and its balanced decision on proper planning grounds in the face of significant and sometimes emotive community submissions from both sides of the debate.

[30]

Whilst we deal with a number of specific planning considerations later in these reasons, we think it useful to deal with some general issues, as they are relevant to the discussion that follows.
This proceeding is said to arise from the particular circumstances of the St Mary's Church congregation, many of whom have fled war and persecution in Iraq and have found solace and refuge in their church. The issue is whether this creates a special or unique circumstance that warrants the refusal of a planning permit for a mosque on adjacent land.
We wish to say something up-front about the underlying tension in this case created by these circumstances. We do so whilst attempting to recognise the very real sensitivities of those who have suffered persecution or trauma at the hands of extremists overseas, including having witnessed the death of family members.
It is trite to observe that, throughout much of modern human history, wars have been fought in the name of religion, between religions, and between sects or denominations within religions. Nowhere is this more obvious than the in the Middle East. Sometimes, the wars are actually about religious dominance. Often, they are simply about political power or land. Either way, they create divisions, fear and distrust that can last for generations.
We heard first-hand evidence from a Ms Taylor, a member of the St Mary's Church congregation, about the truly horrific persecution that she and her family suffered at the hands of Islamic extremists in Iraq, the killing of family members in her presence, and the sanctuary now provided by her church. It was impossible not to be moved by Ms Taylor's evidence. She has been in Australia for a relatively short time, and her trauma is still very real and very raw. One hopes that, over time, her fears and trauma will subside. However, she still suffers fear and trauma in the presence of Muslims, and her approach in Australia is to still to avoid interaction with Muslims.
From a different perspective, we also heard from Hussein Ali, who has purchased and donated the land for the mosque and facilitated the setting up of the Foundation. He gave evidence in which he referred to the persecution suffered by his family and other Muslims in the Lebanese civil war, the killing of family members, and the psychological scars of war where childhood friends suddenly became enemies of the moment when sectarian violence erupted. Again, it was impossible not to be moved by this evidence. Mr Ali has been in Australia for some years, and his approach has been to embrace the equal rights, freedom and respect he now finds in Australia.
Unfortunately, the ability to freely practice one's faith has often been a casualty of war in the Middle East. However, on the other hand, Australia has a rich and proud history of welcoming all religions. It is also a society where people of different faiths can live, work and worship side-by-side, without fear of threats, intimidation or violence.
The objectives of planning in Victoria include an objective to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria. As a matter of general principle, we think it would be a very poor outcome for planning in Victoria if town planning decisions were made to achieve an outcome that effectively replicates in Victoria the very same divisions, fear and distrust that have led people of all faiths to flee persecution and war overseas. Town planning decisions should not set out to separate people, or the use of land, based on ethnicity or religion. If anything, planning should provide the opportunity to support our diverse multi-cultural society and, in combination with other state laws, to promote tolerance and understanding within it.
We note that Hume is a very diverse multi-cultural municipality. The municipal strategic statement and local planning policy framework in the Hume Planning Scheme seek to reflect and celebrate that diversity. Its policies support safe and equitable communities, cultures and organisations that are respectful and non-discriminatory. At a broad level, it seeks to facilitate the provision of services and facilities to meet the needs of its changing community, including community, cultural, religious and education facilities.
The 2011 Census data provided to us suggests that Muslims and Christians both form a significant proportion of the municipal population, and there is a relatively even split of persons who identify themselves as Muslims (39.4%) or Christians (41.7%) specifically in Coolaroo. Orderly planning would thus suggest that community, cultural, religious and education facilities be provided for the needs of both religions.
Moreover, ss 14 and 19 of the Charter of Human Rights and Responsibilities Act 2006 seek to protect the right to freedom of culture, religion and belief. The relevant part of s 14 of the Charter states:

[41]

While the particular faiths of the two places of worship, one existing and one proposed, was central to the main submissions before us, the planning permission that is required under the Hume Planning Scheme is not for a particular faith or a particular user. In this case, the proposal is to use the land for a 'place of assembly', incorporating a 'place of worship' and associated community and education facilities. If a permit is granted, then religious bodies of various faiths or denominations could, over time, own or lease, or develop or redevelop, the review site and operate it as place of worship for its faith.
It follows that, although the particular architecture of this proposed place of worship signals its intent to be used for as an Islamic mosque, we are in fact tasked at a more general level to consider whether a 'place of worship' is generally appropriate on the review site having regard to relevant policies and decision guidelines in the Hume Planning Scheme, rather than whether a specific mosque for followers of the Shi'ite Islamic faith is appropriate. A similar principle would have been applied when St Mary's Church received its planning permission. For planning purposes, the land use permission is simply as a 'place of worship'.
For this reason, the siting of two places of worship adjacent to each other is not incompatible in a planning sense per se. They are the same land use. This case differs then from the very occasional case where different land uses may be separated to prevent an amenity impact through psychological disturbance - the classic example of which is a planning decision many years ago to refuse a permit for a funeral parlour adjacent to, and in the direct sightline of, an aged care nursing home. In any event, in this case the Rutherford group withdrew its reliance on a submission that the mental health of members of the church may suffer if a mosque operated next door, as they had no evidence to support such a contention.
Interestingly, the issue of the compatibility of two adjacent places of worship arises in this case primarily because both have sought to locate in an Industrial 3 Zone, where a permit is required to use land for a 'place of assembly' or 'place of worship'. In the new Neighbourhood Residential and General Residential Zones that now apply across much of Melbourne, a place of worship is an 'as of right' land use subject to conditions about maximum floor space of 250 m² and road zone access. A mosque meeting these conditions could theoretically locate immediately adjacent to a church (and vice versa) in many residential-zoned areas without a planning permit or third-party objection, and without any assessment of the compatibility of the two uses, or the identity or character of the users - including their particular faith or special attributes. It is perhaps surprising then that the siting of two places of worship adjacent to each other could (or should) raise greater compatibility issues, from a planning perspective, in an industrial-zoned area than in a residential area.
In making this general observation, we note that the proposed mosque in this case would not have met the 250 m2 floor space condition even if sited in a residential zone, and it would still have required a permit for use and development. But the main considerations that would apply would arise primarily from the larger floor area that triggered the permit requirement (i.e. built form, and traditional planning matters such as additional traffic, parking and impact on residential amenity) rather than compatibility with an adjacent place of worship based on its faith or the special attributes of the congregation.
The purposes of the Industrial 3 Zone include making provision for 'sensitive' industries and associated uses to locate in specific areas where special consideration of their impacts is required or to avoid inter-industry conflict. The purposes also include using the zone as a buffer between 'heavy' industry in Industrial 1 and 2 Zones, and residential zones. Lighter industry and associated uses are encouraged that are more compatible with nearby communities. This forms part of the spatial context of planning we have referred to above.
Given a place of worship is allowed or permissible in a residential zone, the rationale for the permit requirement for a 'place of worship' in an Industrial 3 Zone would ordinarily be to enable an assessment of its compatibility with any special industrial and associated uses that are encouraged to locate in the zone, rather than its compatibility with nearby communities or other places of worship.
The question is whether any of these 'General Considerations' we have discussed above, that would ordinarily support the grant of a planning permit for a mosque at the review site, are affected by the particular or unique circumstances of this case such as to warrant a departure from these principles and the refusal of the permit. On balance, we think not. Whilst these general considerations perhaps deal with the application for review at a threshold level, we will now turn to the specific grounds raised by the Rutherford group.

[47]

Although this provision only took effect in its present form in 2013, it replaced a provision that the responsible authority 'may, if the circumstances so require' consider such effects. It now more clearly puts the significant social and economic effects of a planning decision on an equal footing with environmental effects, all of which 'must' now be considered.
We make a number of observations about the requirement in s 60(1)(f).
First, that the effects to be considered are those that the responsible authority (or the Tribunal on review) considers to be significant, rather than those that may simply be contended as significant by one party or another. This should be objectively ascertained through the decision-maker's expertise and/or the material before it. It is therefore important that we indicate what we consider to be any relevant significant social effect.
Secondly, the significant social and economic effects must have a causal connection to the use or development proposed in the permit application under consideration, and having regard to the purposes of the legislation within which the requirement arises - i.e. the broader objectives of planning under the Planning and Environment Act 1987. As we have earlier indicated, planning decision-making is not the mechanism for addressing all issues of social or community concern, or resolving all issues of human emotion or behaviour.
Thirdly, from a town planning perspective, significant social and economic effects have traditionally been recognised as those that affect the community at large, or an identifiable section of the community, rather than affecting an individual or a small group of individuals.
Fourthly, a consideration of social effects pursuant to the Planning and Environment Act 1987 should be based on a proper evidentiary basis or empirical analysis, preferably through a formal social impact or socio-economic assessment. There must be objective, specific, concrete, observable and likely consequences of the proposed use or development. A consideration of social effects should not be based on philosophical or moral or religious values. Nor is mere opposition by a section of the public, or a large number of objections, of itself, evidence of social effect.
Fifthly, the social or economic effect must be sufficiently probable to be significant. This will depend on the probability of the effect occurring, the consequences of the effect if it occurs, and the utility of the use and development giving rise to the effect. Both the positive and adverse effects must be considered.
Sixthly, a significant adverse social effect, if there is one, must be considered by the decision-maker. That does not mean that it will necessarily be determinative in itself and lead to the refusal of the permit. It must still be balanced with any other significant social and economic effects. Again, this should commonly and preferably occur through a formal and independent social impact or socio-economic assessment. Moreover, the social effect must still be balanced alongside all other relevant planning considerations, as part of an overall assessment of the proposed use or development in deciding whether or not to grant a permit.
Some of these factors clearly overlap. Support for the principles that underscore these factors can be found in many planning decisions of courts and tribunals cited to us, including (but by no means limited to) New Century Developments Pty Limited v Baulkham Hills Shire Council[8], Johnson v Greater Shepparton City Council[9], Tabcorp Holdings Pty Ltd v Moreland City Council[10], and Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd[11], and cases referred to in those decisions. We do not consider it necessary to analyse these cases in detail.

[48]

Having regard to these factors, we consider that, with one exception, there is insufficient material of probative weight to establish a relevant social effect that the use or development may have for the purpose of s 60(1)(f) of the Planning and Environment Act 1987, or that the effect (even if potentially relevant) is significant.
The 'exception', where there is at least an arguable social effect of significance raised by the Rutherford group, is in our view the potential for members of the congregation of St Mary's Church, (who have physical and psychological scars from past atrocities at the hands of extremist-Islamists in Iraq) to feel so affronted by the presence of the mosque that they will cease attending St Mary's Church, and that the church may conceivably close. We will consider and assess this social effect in a separate section of these reasons, but we should perhaps indicate at the outset that we find the material to support the significance of even this social effect to be far less than would ordinarily be appropriate or necessary to establish the ground in a proceeding such as this, having regard to the factors that we have outlined above. There is no formal social impact assessment, or a balancing of other relevant factors. The Rutherford group's case is based on limited evidence of limited probative weight.
On other matters alleged as giving rise to a significant social effect in this proceeding, we find this ground unsubstantiated.
For example, the material in support of the allegation of a potential for an outbreak of violence in the public domain, or that the site would become a 'flashpoint' is very weak. Aside from Mr Rutherford's unsubstantiated opinion that there might 'be a blue,' in the main it was constituted through the evidence of Archdeacon Hirmiz of St Mary's Church. The Archdeacon indicated that he had preached tolerance and understanding within his congregation, but expressed a concern that he might not be able to dissuade some of the members of his church from committing acts of violence against Muslims attending the mosque. At the same time, the Archdeacon acknowledged no threats (and no particular expectation of violence) from those associated with the mosque proposal. He described in good terms the meetings he has had with the Foundation, and indicated a willingness to work with those he described as his Muslim 'brothers'.
In truth, we were presented with no evidence of a real likelihood of violence stemming from the siting of this proposed mosque adjacent to the St Mary's Church, nor any examples of where the presence of a mosque near a church in Melbourne has led to any violence in the surrounding community. Indeed, although not immediately adjacent, there are other mosques and churches sited near each other in other parts of the Hume municipality (e.g. in Meadow Heights, separated by a large car park) without any known adverse social effect.
The Rutherford group also relied on there having been a police presence at the Council meeting when the permit application was approved, and some objections to the Council having raised concerns about violence. We were not made aware of any actual violence, or actual threats of violence, arising from this. The Tribunal is well aware of heightened emotions in many planning approval processes, and occasional police attendance at rowdy Council meetings or public demonstrations. We are also aware of the many very real fears and apprehensions of objectors in planning matters that are not always borne out in reality if a development proceeds. This is not evidence, by itself, of an actual or significant social effect. In our experience, most people accept the umpire's decision and move on. Moreover, we live in a democratic society, generally with respect for the law, and with a policing and justice system well able to deal with breaches of the law.
Based on the very limited material before us, we are not persuaded that an outbreak of violence in the public domain is a likely consequence of the approval of this development, nor that it is a significant social effect for the purposes of this permit application. Despite this, we have nonetheless considered the issue, but weighted it accordingly.
Moreover, despite the unique characteristics of the St Mary's Church congregation, there was no evidence that there is any direct conflict between Iraqi Assyrian Christians, and the predominantly Lebanese Shi'ite Muslims who seek to develop the mosque. Whilst we are very mindful of Ms Taylor's traumatic experiences in Iraq, her evidence was that she is opposed to any mosque or any use of the adjacent site by any Muslims, even if just as an education centre[12]. The Archdeacon indicated that there were others in the congregation holding similar views.
Similarly, the Rutherford group claimed that the mosque, with its dominant built form and minaret, would serve as a reminder of the trauma and persecution suffered by users of the church, 'irrespective of how well meaning, peaceful or benign the neighbouring Muslim population is'[13], and that the case does not concern the identity, cultural background or birthplace of the users of the mosque[14].
We find these assertions to be self-contradictory of the case being put by the Rutherford group. We have indicated elsewhere our broad view that the end-user or faith of a place of worship is theoretically irrelevant for planning purposes. But if the Rutherford group relies upon the identity, cultural background and birthplace of those who attend St Mary's Church (being mainly Assyrians who have fled persecution in Iraq) to support its ground of a significant social effect leading to incompatibility between the two places of worship, it should equally accept the likely characteristics of those who will use the mosque. There is no evidence that they will be predominantly Iraqi, or anti-Assyrian, or threatening or violent. Indeed, the evidence, such as it is, supports a contrary view.
We were astounded that the only real 'evidence' of possible violence came from the Archdeacon, being a concern about violence being committed by members of his church, contrary to his Christian teachings, against followers of the mosque - i.e. by those who have supposedly fled persecution overseas to seek safety and security and religious freedom in Australia, and whose special interests in that regard are now sought to be protected. We are concerned that the Rutherford group may (albeit initially with good intention) be fuelling the flames of a conflict that does not actually exist, rather than working within their Broadmeadows Progress Association to promote the opportunities for tolerance and understanding (and healing) that could eventuate in a community where Christians and Muslims already live and worship in relatively even numbers. For the Rutherford group to use the evidence of Ms Taylor or the Archdeacon to oppose any mosque or any use of the site by any Muslims, or to make similar submissions on their own behalf, gives the impression of a broader anti-Islamist sentiment despite the group's protestations to the contrary.
We might add that, to the extent that the Rutherford group raised the issue of the dominant built form of the mosque as causing affront to members of the church, there was no evidence to support this, apart from a foot-noted reference in submission to two (unnamed) objections to the Council having raised this issue. Moreover, the records of interview (including Ms Taylor's) relied upon by the Rutherford group had indicated a view by those parishioners that the problem was with the people (i.e. the Muslims) and their attitude, rather than the building. The Rutherford group itself raised no grounds and made no submissions generally on built form or development matters. They did not, for example, seek a lowering of the height of the minaret as a means of ameliorating this concern, such as has been a condition of approval for at least one other mosque proposal in Victoria.
Turning to a separate issue, we cannot find, on the basis of the material before us, that this proposal might result in a loss of Assyrian culture from this community. There was no evidence to support this assertion. We agree with the Council that the local Assyrian culture is broader than that symbolised by this one church of some 700 members. That is also evident from the demographics of the surrounding community demonstrated in the census data presented during the hearing. Apart from the St Mary's Ancient Church of the East, we understand that there are Assyrians in Melbourne who are followers of the separate Assyrian Church of the East. We are not persuaded that, despite all of the good work done by and within the St Mary's Church, that it is the sole instrument through which the Assyrian culture of this community is expressed. We have no basis to find that any aspect of Assyrian culture would be lost from the community even if the church were to close or relocate, or the significance of any such event from a social impact perspective. Despite not considering this to be a significant social effect, we have nonetheless considered it in the context of our overall decision-making role in this proceeding, but weighted it accordingly.

[49]

We return to what we have accepted is at least an arguable social effect of significance for the purpose of s 60(1)(f) of the Planning and Environment Act 1987; namely the potential for members of the congregation of St Mary's Church to feel so affronted by the presence of the mosque immediately adjacent to their church that they will cease attending the church, and it may close.
The social effects of this potential are twofold. First, it has the potential to harm the individuals involved, as they will lose touch with the community of their church and the ability to worship at St Mary's Church. Secondly, it will harm St Mary's Church, which might lose a proportion of their membership to the extent it may close. It is presently the only Ancient Church of the East in Melbourne. We believe that these factors thus comprise a significant social effect to which we should have regard.
For the record, we note that the Rutherford group had alleged that the church parishioners may be so affronted by the presence of the mosque that their mental health may suffer. No evidence was led to support this view, and the group's counsel later indicated that they no longer relied upon this assertion in their written submission. For this aspect of the ground of review to have had any weight, or for an amenity impact to be substantiated on the basis of psychological disturbance, we would have required a proper evidentiary basis.
Having said that, if there had been clear evidence of probative weight of particular psychological disturbance or mental health suffering to a significant number of members of the congregation being caused by the development and use of the mosque, this may have affected the weight given to this social effect. The Rutherford group's inability to substantiate this aspect of their case was ultimately, in our view, quite telling.
Ms Taylor made some disturbing comments about Muslims, and her fear of Muslims, and indicated that she would even move from her house if a Muslim moved in next door. We do not seek to criticise her. However, her trauma and antagonism is so patently raw that we do not consider it provides us with an objective basis for considering social effects at a community level (or a congregational level) for the purpose of planning decision-making. Nor are we able, in the absence of expert evidence, to assess the extent of psychological disturbance to people such as Ms Taylor, or the time within which it may start to heal. Ms Taylor indicated that she was not presently obtaining professional assistance to deal with her trauma.
We accept that many members of St Mary's Church may be legitimately affronted by having a mosque next door to their church. We agree with the Council that the development and use of the mosque will require an adjustment by these people, and that this adjustment may be very difficult for some of them, and for some may take time. However, we respectfully disagree with the Council that such an adjustment, in the circumstance of this case, does not comprise a significant social effect. We consider that, if church members cannot make such an adjustment, and thereby exclude themselves from their church community, this would be a significant social effect to which we should have regard.
On the limited material before us, we find it difficult to accurately assess how many people who currently regularly attend St Mary's Church would actually cease attending the church as a result of the development and and use of the proposed mosque. The Rutherford group sought to quantify this, by arranging a survey at the church on a Sunday during an adjournment of the hearing. That survey revealed that 91% of people would leave St Mary's Church if a mosque was constructed next door, and that 86% would not thereafter attend any church.
The survey was contested by both the Council and Foundation, and we also have great misgivings about its reliability and probative weight. In particular:
- the survey was poorly drafted, with some leading questions or questions with limited choice for response, or questions that played to the emotions of those being surveyed - e.g. a reference to Iraqi Muslims possibly attending the mosque, or limited options provided as to the alternatives to attending the church if the mosque was approved;
- the survey was not prepared by a person with experience in the preparation of surveys (having been prepared by the Rutherford group's solicitors);
- the survey was not independent, having been prepared on behalf of a group with a clear opposition to the mosque, to deliver an outcome that had already been promoted by that group in this proceeding;
- we cannot be sure of the manner in which the survey was administered, including any advice, guidance or instructions given to those who completed the survey - either at a congregational level or individually, including to those with language difficulty; and
- less than half of the church membership were involved in the survey.
The survey was also a survey about limited outcomes, rather than a survey of the type one would usually see prepared and presented to this Tribunal as part of an independent social impact assessment.
For these reasons, we do not place great weight on the survey. We are not persuaded that the number of people who would stop attending St Mary's Church if the mosque is constructed, or who would thereafter not attend any church, is as high as the survey indicates. To our sensibility, given what we are told about the importance of their church and faith, it is not a rational or likely outcome that church members would simply disperse if the mosque is built and not even seek, in a worst case scenario, to maintain or re-establish their faith community.
Although not determinative, we also note that many of the church congregation have chosen to reside, and have set up their church, within an area that has a population split almost equally between Christians and Muslims. In other aspects of their lives, they already interact locally with Muslims and followers of other faiths including, presumably, many Shia Muslims who would attend the new mosque. There is no evidence that this represents a serious social issue of concern.
We are however prepared to accept, more generally, the very real potential that many within the congregation would not attend St Mary's Church if the mosque is constructed next door. We find sufficient support for this in the evidence of the Archdeacon who, although a lay witness, is uniquely placed as a leader within his church to give an insight into the views of his parishioners.
However, whilst we accept this potential for members of St Mary's Church to leave the church as a significant social effect, we note that it is a social effect that is entirely voluntary. We do not agree with the Rutherford group that it would be an effect necessarily 'forced' onto the church community, or on individual members of this community. The development and use of the mosque will not physically stop people from being able to attend St Mary's Church or to practise their faith at the place of their choosing. Some may find it difficult or confronting at first, but it is not impossible. The car park will still be accessible from Kyabram Street, and the front doors of the church will still be visible from the street. Access to the church will remain as currently exists. The church has no significant outdoor facilities, and its interior will remain a place of community and sanctuary for those who choose to use it. The main day of worship for church followers will be different to the main day of worship for users of the mosque. The choice will be available to each individual member of the church to listen to their Archdeacon who has taught tolerance and understanding of their Muslim brothers. The choice will be available to each member of the church congregation to continue to use the church, or to leave. These are not matters ordinarily related to a planning analysis, or social effects that are so absolute or unavoidable to the extent they should necessarily impact on a planning decision.
On the other hand, if we refuse to grant a permit, then we will refuse another identifiable group in the same community from having the opportunity to worship in a mosque and practice their faith. Although not a determinative factor, Mr Ali purchased the mosque site before the church site was purchased and developed. Whilst other mosques exist in the area, Mr Ali's evidence is that this will be the first Shi'ite mosque in Melbourne, thus providing for a section of the community for whom there are few facilities at present. Clearly, there is a need for this facility, that has prompted the planning permit application before us. To refuse to allow the establishment of a Shi'ite mosque on this land could have as much of an adverse social effect on the Shia Muslim community (or more) than any adverse social effect on the St Mary's Church congregation. That effect would not be voluntary.
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.
The Rutherford group relied upon the expert evidence of Robert Milner, a town planner, on relevant aspects of the Hume Planning Scheme, and Mr Milner purported to express a view on the social effects of the proposal as well. We found Mr Milner's evidence less than helpful. In particular:
- due to the lateness of his being briefed, Mr Milner had not undertaken any meaningful research of his own, and relied largely on material provided to him. Some of the facts and assumptions upon which he relied were therefore incomplete, or questionable. Mr Milner's evidence about the compatibility of the two places of worship was thus very generalised, and he appeared only to have considered the alleged negative impacts comprised in his instructions.
- Mr Milner did not attempt to undertake a social impact assessment. This is not so much a deficiency on Mr Milner's part, as he is not a qualified social planner, but rather a shortcoming in the way the case has been prepared by the Rutherford group and their advisors given their reliance on significant social effects as the key issue in the proceeding.
We therefore find that, although there may be a significant social effect if a large number of the church congregation were to leave the church, there is insufficient material to suggest that such an outcome should be determinative in this case. Lest there be any doubt, however, our consideration of significant social effects in this case leads us to the view that, even if there was evidence of more probative weight to suggest that St Mary's Church would close as a result of a mosque establishing next door, we would not refuse this permit solely because of the social effect of that outcome.

[50]

We think it appropriate to return to the 'General Considerations' that we set out earlier in these reasons. To our mind, they lead to an outcome that is determinative, and outweigh the opposing material provided by the Rutherford group or the limited expert evidence of Mr Milner. The consideration of significant social effects in this case can draw from what is already to be found in the planning framework including, as we have indicated earlier:
- a 'place of worship' does not discriminate on the basis of faith, and planning permits run with the land in a manner that does not generally concern itself with the identity or character of the end user;
- the Planning and Environment Act 1987 already sits within a broader legislative framework, including the Charter of Human Rights and Responsibilities Act 2006, which does not discriminate on the basis of faith or ethnicity; and
- our view that it would be a poor outcome for planning generally, having regard to the objectives of planning but also in its consideration of significant social effects, to support outcomes that would separate people or land use on the basis of ethnicity or religion.
Although the Rutherford group sought to frame its submissions as being in opposition to this particular mosque being adjacent to this particular church, we are not persuaded that, in looking to significant social effects for the purposes of s 60(1)(f) of the Planning and Environment Act 1987, the concern can be expressed so narrowly. In any event, the evidence from Ms Taylor and the Archdeacon was used to oppose any mosque on this site.
Moreover, there is a line of judicial decisions, albeit not directly on point, that establish that people should not be barred from practising their faith on their chosen site, when others are permitted to do so in the same neighbourhood. We have referred to the New Century decision elsewhere in these reasons. Equally, we note the words of Justice McHugh in Canterbury Municipal Council v Moslem Alawy Society Ltd[15]:

[53]

In our view, there is only one option that is before us that would allow the potential for both faiths to practice their religion at the places that they wish to do so. That is where a planning permit is granted for this proposed mosque. That outcome will clearly allow those of the Shia Islamic faith to practice their religion on the review site. It will not prevent the congregation of St Mary's Church from practising their Christian faith on their site, albeit that many members of the congregation may have difficulty adjusting to this. That is a voluntary decision that individual members of the church will need to make. We heard that it is an approach that Archdeacon Hirmiz and Bishop Emmanuel will urge upon the congregation if the mosque is approved. The approval of the mosque is therefore a scenario which will open the potential for people of both faiths to express their beliefs at their chosen venues.
We share the Councils concern about the broad social impacts of any decision that seeks to separate places of worship from one another. We agree that a decision here to refuse to allow one group to practise their faith due to the close proximity of another faith community has the potential to undermine the co-operative and equal status that all faiths currently enjoy in Australia. Furthermore, if a principle was established that led to a series of planning objections and/or planning decisions that sought to separate faith communities, this would, in our view, have a greater and more significant social effect than the highest case that could possibly be brought against this proposed mosque.
Whilst many might see it as the 'easy way out' for the broader community to separate these two faiths and these two places of worship, in our view it is not an outcome that is fair and equitable, or the best outcome from a planning perspective having considered relevant social effects.
We are satisfied that these two places of worship can co-exist in suburban Melbourne, in a manner that does not involve threats, violence or disturbance of the peace. We are also satisfied that these two places of worship can co-exist, in a modern tolerant and multi-faith society, in a manner which does not infringe on each other's right to worship or otherwise express their faith. We are satisfied that any social impact that will occur to members of the St Mary's Church congregation or the broader community is not so great as to warrant refusal of the grant of a permit, when balanced against the other considerations that are before us. We are also satisfied that any social impact that might occur from our decision to permit the mosque will not outweigh the social impact that is likely from a decision to not allow the mosque on the review site.
We therefore find that the Rutherford group's first ground of review fails.

[65]

Further, it is the evidence of Mr Milner that the proposal will not deliver an outcome of perception of safety for the congregation of St Mary's, as sought to be achieved by the policy quoted above.
We are not persuaded by this evidence. This is, in part, because we are not persuaded that the application before us, to establish a 'place of worship' next to another 'place of worship', is the type of planning scenario that raises safety concerns. From a broader land use perspective, where the particular faith or end-user are largely irrelevant, a place of worship should be seen as a relatively benign use not raising safety concerns.
The safety concerns in this case, if any do eventuate, are likely to result from people's prejudices and responses to others expressing their faith, and human emotions stemming from past conflict overseas. This is perhaps understandable at a general level, but it is different to other instances where safety issues might arise in a more traditional planning context - e.g. where an offensive industry seeks to establish too close to a residential community, or where a dwelling is proposed in a location of high flood or fire risk. Those are examples of where an issue of safety is squarely raised by the particular application that is proposed. Here, the mere construction and use of a mosque, of itself, does not pose a safety risk. Rather, the safety concern here is generated by people's emotional responses to their changed physical context. That is not a safety risk that, in our view, the planning system is intended to deal with. As we have indicated, town planning is not a mechanism to resolve all aspects of human emotion and behaviour.
Having said that, we agree with the Rutherford group that their concern can be considered more generally as a matter of amenity. The concept of amenity is a broad and flexible concept that is more than 'pleasantness' or 'agreeableness' and embraces all the features, benefits and advantages inherent in an environment or locality[17]. We think, in the context of this case, amenity embraces people's perceptions of their safety in the place where they choose to live, work or worship.
However, whilst these so-called amenity impacts were raised as a separate ground in opposition to the mosque, they are intrinsically linked to the matters we have already addressed in relation to potential social effects. We therefore adopt our earlier reasons insofar as they relate to this issue.
The Rutherford group submitted that the surrounding community will potentially suffer an amenity impact as a result of any conflict that may erupt between the local Islamic and Christian communities, if the mosque is constructed on the review site. In truth, we consider this potential to have been somewhat 'overplayed' during the hearing. Whilst not saying that there could never be conflict, there was simply no evidence of any threats or intimidation or provocation that will likely be directed by those of the Islamic faith community towards the local Christian community as the result of the development and use of the mosque at the review site. Specifically, in relation to the congregation of St Mary's Church, this was acknowledged by Archdeacon Hirmiz. Specifically, in their written submissions, the Rutherford group also made clear that they did not rely upon any such threats, or physical harm, stemming from those associated with the mosque proposal, as a basis for refusal of a permit.
Whilst there is evidence of conflict overseas, in Australia there is mostly a history of peaceful co-existence between communities of different religions. We reiterate that we are not persuaded that we should somehow read into the police presence at the Council meeting (where a decision was made on the permit application) that there is necessarily an expectation of violence. The approach may have simply been a precautionary one given the numbers attending the meeting.
The only potential for violence that was raised during the hearing is that which might be perpetrated by some members of St Mary's Church against people of Islamic faith. As we have said, we were astounded at such a suggestion, given the cooperative intent of Archdeacon Hirmiz in his dealings with those associated with the mosque proposal, and the non-violent Christian teachings we are instructed are given at St Mary's Church. In reality, we expect that even this potential for violence is remote, and the threat of it borne more of emotion than likely actual intent. In the passage of time, we would expect a more measured response than the extreme scenario presented to us. At most, it is a matter that we consider can be adequately dealt with through our policing and justice system, rather than being indicative of a major amenity impact.

[66]

While the statement of grounds initially lodged by the Rutherford group had raised a broader range of matters, many grounds were subsequently withdrawn or not relied upon, and the hearing was conducted on the basis that the grounds of social effect and amenity impact were the only two matters requiring our formal determination. Whilst we appreciate this pragmatic approach by the parties, we are required to consider all relevant planning issues as part of our 'review', and we consider that there are a few other matters to which we should briefly refer.
The first is that of car parking and traffic. The site proposes the provision of 228 car parking spaces on site. Under Clause 52.06 of the Hume Planning Scheme, a place of assembly is required to provide 0.3 car parking spaces for every patron. Therefore, the proposed provision of 228 car parking spaces will more than adequately serve the usual weekly capacity of 500 people, for which 150 car parking spaces would be required. However, there will be difficulty in servicing the parking demand when, twice a year, it is expected that up to 1500 people will attend to celebrate the Eid Festival.
The Tribunal has routinely not required a place of assembly, including a place of worship, to provide car parking for the peak demands associated with very occasional festivals or religious events. The Council provided us with some examples of this approach[18]. Similarly, we do not consider it fair or reasonable to assess the car parking demands for this proposed mosque based on a twice-yearly peak. We are satisfied that the car parking proposed here is acceptable.
The issue of traffic generation was addressed in a report prepared by Cardno. Setting aside the absolute peak traffic movements associated with the twice-yearly Eid Festivals (which, for similar reason to car parking, would not be a reasonable basis for assessment), that report estimated that the peak extent of vehicle movements will occur on a Friday when 403 traffic movements will be added to the surrounding road network. At present, Kyabram Street is said to carry an average daily volume of 3,331 vehicles per day, and its environmental capacity is around 7,000 vehicles per day. The projected increase in traffic will therefore be noticeable, particularly around the time of Friday prayers. However, it will still be well under the environmental capacity of the most directly affected road. We find this outcome to be acceptable.
The second relevant matter is that of the architecture and built form of the proposed mosque. The mosque is proposed to have a maximum wall height of 12.5 metres, with the dome having a height of 15 metres, and a minaret with a height of 27 metres. The mosque is provided with a 9.6 metre setback to Kyabram Street. The peak of the dome will be set back approximately 28.5 metres, and the centre of the minaret set back approximately 31.5 metres from Kyabram Street. Kyabram Street has a width of approximately 28 metres, with a central median providing landscaping. Residential properties are located on the opposite side of Kyabram Street.
The assessment of visual bulk of the proposed mosque needs to be understood in its relevant context. Part of this context is the proximity of the affected residential properties to land within an Industrial 3 Zone. Development within such a zone will never imitate the setback and articulation of residential forms. Instead, larger and higher built forms are inevitably expected on industrial-zoned land that interfaces with residential-zoned land.
Another part of the context is the suitability of the Industrial 3 Zone for a place of worship, being a zone which invariably exists at the interface to sensitive areas such as residential neighbourhoods. It is fairly commonplace throughout Melbourne for dwelling to have an outlook to a place of worship, and for the place of worship to have some height in some parts of the built form, depending on the architecture employed.
A further part of the context is the desired style of architecture of a mosque. Different faiths have their own traditions when it comes to architectural styles. While more modern Pentecostal faiths may be content with large modern low scale buildings, all manner of faiths have their firmly held architectural styles. These include the Catholic and Anglican churches with their spires, the Coptic Orthodox Church with its domes, and the equally distinctive architecture associated with the domes or minarets of mosques. It is important, in applying planning principles to the assessment of architectural outcomes, to recognise that such architectural styles are often an important component of the expression of faith from a faith-based community. We note in passing that the minaret proposed for this mosque will not be used for the Muslim call to prayer, nor will the call to prayer be amplified.
Having regard to the reasonable expectations that some built form will be associated with development in an Industrial 3 Zone, and the proposed setbacks involved, particularly to the higher elements of the mosque, we find that the built form outcome proposed here is reasonable and appropriate.

[74]

Our task therefore is to determine whether the proposal before us achieves net community benefit, and a reasonably acceptable outcome, noting that there may be associated benefits and disbenefits.
In the case before us, the potential disbenefits have been thoroughly debated, and described throughout our reasons. They include the potential impacts on individual members of St Mary's Church, some of whom may choose to no longer attend the church, the broader resultant impact on the wider church community. For the reasons we have already set out, we have found that some of these impacts constitute a significant social effect. Occasional car parking or traffic impacts may also be considered a potential disbenefit to some, albeit that we have not found those impacts to be unreasonable in this case.
The proposed mosque entails a number of benefits. These include some measurable benefits, including the economic benefit from the development of the land. The mosque also represents an appropriate use of land within the Industrial 3 Zone, which can provide a buffer between heavier industrial uses in the Industrial 1 Zone to the east and the residentially zoned land to the west. Other places of worship, including St Mary's Church, enjoys the benefits of locating in this buffer.
Some other benefits are harder to measure, but are no less important. They include provision for the first Shi'ite Mosque in Melbourne, thereby allowing people of this branch of Islam to express their own faith and worship in their own mosque. They also include the educational, social and other community activities that will be allowed to occur in this facility for the local Islamic population.
Having regard to these benefits and disbenefits, we are satisfied that a net community benefit will be achieved by the proposed use and development. It does not necessarily follow from this assessment that a planning permit must therefore be granted, but the achievement of a net community benefit is a weighty factor in our considerations.
We consider our task is to assess this proposal having regard to the way that society does, and should, operate in Australia. We live in a tolerant society - one where, for the most part, people of different ethnic and social backgrounds can mix freely in the same city, the same suburb and the same street without fear of the threats and violence that may occur in other parts of the world. Our broader community supports many faiths, not only those of the Islamic and Christian faith, which have all co-existed in this city without fear or favour for many years. Whilst we acknowledge the particular circumstances of St Mary's Church, we do not consider our planning decision should be made on the basis that some (or even many) of its congregation are still finding it difficult to adjust to those Australian societal norms. We consider it to be a realistic, rather than an idealistic, expectation that they will in time embrace the equal rights and equal freedoms of our multi-faith society.
More particularly, we consider our task is make decision according to law and having regard to the relevant provisions, policies, and decision guidelines in the Planning and Environment Act 1987 and the Hume Planning Scheme. Having done so, we consider it appropriate to affirm the decision of the Council and to direct the issue of a permit.

[97]

"Entry"& "Exit" and "No Entry" & "No Exit" signs must be placed at the appropriate access and exit points. Line marking arrows to be placed at the access points to the satisfaction of the responsible authority to highlight the direction of traffic flow onto and off the site and to minimise disruption to the local road network.
Car spaces, access lanes and driveways shown on the endorsed plans must be kept available for these purposes at all times to the satisfaction of the responsible authority.
All loading and unloading of goods from vehicles associated with the approved use must be carried out on the land and must not unreasonably interfere with the circulation and parking of vehicles on the land or on abutting streets.
When the approved use is not in operation, the car park area must be closed and access restricted to the satisfaction of the responsible authority.
Before the development is occupied, vehicle access to and from the land from any roadway or service lane must be by way of vehicle crossings constructed in accordance with Council's Vehicle Crossing Specifications to suit the proposed driveway(s) and the vehicles that will use the crossing(s). After obtaining a road opening permit from Council, the location, design and construction of the vehicle crossing(s) must be approved by the responsible authority.
Before the use commences, any existing unused vehicle crossing(s) must be removed and replaced with kerb and channel, footpath and nature strip to the satisfaction of the responsible authority.
Adequate lighting at driveways and throughout the car park must be provided for safe night time traffic movement. Such lighting must be located and designed with suitable baffles so as to prevent any adverse effect on the adjoining land to the satisfaction of the responsible authority.
Before the use commences 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 removing weeds and replacing dead, diseased and damaged plants in accordance with the endorsed landscape planting schedule.
Provision of litter control at stormwater inlet points within car park and paved areas must be provided. All stormwater pits to be Channel Grated or Grated as per Council's Standard Dwg SD 210/215 or SD225 respectively.
Stormwater from all paved areas must be retained within the property and drained to the sites underground stormwater system, including pavement over the easement area.
Any cut or fill must not interfere with the natural overland stormwater flow.
No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during construction.
This permit will expire if one of the following circumstances applies:
1. The development is not started within three years of the issued date of this permit.
2. The development is not completed, and the use is not started, within six years of the issued date of this permit.

Rutherford & Ors v Hume CC

At a glance

Court

Decision date

Source

Judgment (116 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)

Rutherford & Ors v Hume CC (includes Summary) (Red Dot) [2014] VCAT 786 (14 July 2014)