Victorian Civil and Administrative Tribunal|2004-04-07

Willrath v Keysborough Turkish Islamic & Cultural Centre Inc. [2013] VCAT 996 (7 April 2004)

Willrath v Keysborough Turkish Islamic & Cultural Centre Inc. [2013] VCAT 996

The order of the Tribunal is that the decision of the Responsible Authority is varied. A permit is granted for place of worship at 396 Greens Road Keysborough generally in accordance with the endorsed plans and subject to the following conditions:-

Before the development starts, three (3) copies of an amended plan/plans drawn to scale and dimensioned, must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans submitted with the application, or some other specified plans, but modified to show:
- (a) Overflow carparking area for 200 cars.
- (b) Landscaping details pursuant to Condition 21 hereunder. All species selected must be native to the Greater Dandenong Area. One canopy tree is to be provided for every 25 sqm of area within the front setback of the site and between the carparking areas shown and the adjoining side title boundaries.
- (c) Minimum of three disabled car spaces associated with the place of worship.
- (d) Schedule of colours and finishes.
- (e) All existing and approved (proposed) buildings and carparking on site, together with a notation of each relevant planning permit number.
- (f) Finished floor levels.

All to the satisfaction of the Responsible Authority.

The development and use as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.
The minarets forming part of the development hereby approved must not be used for the emission of or propagation of amplified sound to the satisfaction of the responsible authority.
Once the development has started, it must be continued and completed all to the satisfaction of the Responsible Authority.
The permitted use must not commence and the subject site must not be occupied for that use until all buildings and works and the conditions of this permit have been complied with, unless with the further written consent of the Responsible Authority.
The place of worship hereby permitted must not be occupied by more than 800 persons during the following times:
- (a) 7.00am to 9.00pm on any day, or;
- (b) 5.00am to 11.00pm during the month of Ramazan, or the week of Kurban;

at all other times no more than 20 persons may occupy the place of worship. The number of persons and the times may be varied with the written consent of the responsible authority.

A sign shall be erected and maintained at the entrance to the property setting out the times and days of services and religious festivals, at least 7 days prior to any service or festival, to the satisfaction of the responsible authority.
Provision must be made for the drainage of the site including landscaped and pavement areas, all to the satisfaction of the Responsible Authority.
Before the use of the land starts, areas set aside for the parking of vehicles and access lanes as shown on the endorsed plans must be:
- (a) Constructed in accordance with the endorsed plan/s.
- (b) Properly formed to such levels that they can be used in accordance with the plans.
- (c) Drained to the legal point of discharge.
- (d) Linemarked to indicate each car space and all access lanes.

Parking areas and access lanes must be kept available for these purposes at all times. All to the satisfaction of the Responsible Authority.

The overflow carparking areas shown on the endorsed plan/s must be graded, compacted, drained and planted with hardwearing grasses and maintained. Clear directions for the use of the overflow carparking areas must be provided All to the satisfaction of the Responsible Authority.
A continuous concrete raised kerb no less than 150mm (or 75mm) in height, or other measures approved by the Responsible Authority, must be provided adjacent to the landscaped areas as protective measures to the landscaping treatment all to the satisfaction of the Responsible Authority.
The carparking area must be lit if in use during hours of darkness, and all lights must be designed, fitted with suitable baffles and located to prevent any adverse effect on adjoining land, all to the satisfaction of the Responsible Authority.
The car parking provided on the land must always be available for use by persons employed on, worshiping at or visiting the subject premises, and no measures may be taken to restrict access to the carpark by such persons, all to the satisfaction of the Responsible Authority.
The car parking space/s for disabled persons designated on the endorsed plan/s must be clearly set aside for such a purpose and must not be used for any other purpose.
The amenity of the area must not be detrimentally affected by the use or development on the land through the emission of noise or artificial light.
All external lighting of the site, including car parking areas and buildings, must be located, directed and shielded and of such limited intensity that no nuisance or loss of amenity is caused to any person beyond the site.
A landscape plan for the site prepared by a person suitably qualified in landscape design shall be submitted to the Responsible Authority. The details of that person's qualifications must be given and the plan must show existing vegetation to be retained, all proposed trees, shrubs and ground cover, including the botanical names and sizes at maturity of all plants and the location of all areas to be covered by grass, lawn or other surface material to be specified. The use of the land shall not be commenced until such time that the submitted plan has been approved by the Responsible Authority. An endorsed copy of the approved plan shall form part of this permit.
Before the use of the building hereby approved commences, landscaping works as shown on the endorsed plan/s must be completed and then maintained, all to the satisfaction of the Responsible Authority.
The unused portion of the property must be kept drained, tidy and mown at all times to the satisfaction of the Responsible Authority.
This permit will expire if -
- (a) The development does not start within two (2) years of the date of this permit, or
- (b) The development is not completed within four (4) years of the date of this permit, or
- (c) The use does not start within one (1) year of the completion of the development, or
- (d) The use is discontinued for a period of two (2) years.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

This is an application to review the decision of the Responsible Authority to grant a permit for a Place of Worship in greens Road, Keysborough. The Applicant sought to review the decision of the Responsible Authority on the following grounds:
1. The proposal is inconsistent with the provisions of the Greater Dandenong Planning Scheme.
2. The proposal is an overdevelopment of the site.
3. The height, scale and visual bulk of the proposed development is excessive and out of neighbourhood character.
4. The proposal will upset the balance between urban and rural uses.
5. The permit applicants/site occupiers are unwilling to comply.
The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal.
At the conclusion of the hearing the Tribunal gave oral reasons for its decision to essentially uphold the decision of the Responsible Authority and direct that a grant of a permit, albeit with some variation of the conditions originally proposed. A summary of the Tribunal's reasons is set out below.
The history of the use and development of the subject land since the 1980's, the particular history of the development of a number of religious institutions along Greens Road, and now the decision in relation to the urban growth boundary all reinforce the continued use of this land for religious, cultural and educational purposes. These factors must influence any decision which might be made in relation to the proposal vis a vis the planning policy framework set out in the planning scheme.
The proposed mosque will not result in any significant intensification of the use, or of the consequent amenity impacts, vis a vie the existing permission. The size and location of the subject land has the effect that the scale and types of activities proposed can be easily accommodated on the land with no undue off site effects. This is not to say that the proposed Place of Worship, or the other uses on the land, could not from time to time be conducted in a way which has an off site effect, but such incidences are unlikely, and capable of management.
I cannot agree that a building with a maximum height of 12.3 metres, and an average height in the order of 6 to 7 metres, setback some 80 metres from the road frontage will be visually dominating, particularly when one has regard to the overall size of the site.
Steeples, towers and minarets are a feature of European, Australian and Middle Eastern urban rural landscapes. Again, having regard to the size of the site, and the proposed siting of the mosque and its minarets, I cannot agree that they will be visually dominating, or unacceptable elements in the landscape.
The notice of decision refers to place of assembly and associated funeral parlour in the description of the permitted use. I think that this is unnecessary these aspects of the use are only permitted in the sense that they are ancillary to or a aspect of the use of the land as a place of worship. Similarly I think it unnecessary to repeat separate health and other regulatory regimes in permit conditions., particularly when such references are uncertain in their effect.

Environment Act 1987

Willrath v Keysborough Turkish Islamic & Cultural Centre Inc. [2013] VCAT 996

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Willrath v Keysborough Turkish Islamic & Cultural Centre Inc. [2013] VCAT 996 (7 April 2004)

Parties

Legislation Cited (1)