Religious tolerance and planning decision-making: the Bendigo Mosque case comes to an end with important consequences for planning decision making

In a widely expected outcome, the Court of Appeal yesterday refused leave to appeal against the orders of the Victorian Civil and Administrative Tribunal in Hoskin v Greater Bendigo City Council, commonly known as Bendigo Mosque case.

In the end, the applicants sought leave to appeal on only two relatively narrow issues concerning the proper approach to the assessment of ‘significant social effects’ under s 60(1)(f) of the Planning and Environment Act (‘the Act’).  Given this, the Court could have given a relatively narrow judgment.  Instead, it gave a wide-ranging decision which offers participants in the planning system plenty to think about.

Key issues

The principal issues addressed by the Court were:

·         The relevance of human rights in planning decision-making; and

·         The proper approach to the assessment of ‘significant social effects’.

Overall, the judgment provides a firm legal basis for responsible authorities and the Tribunal to reject objections where the primary motivation for the objection appears to founded in religious intolerance.

Freedom of conscience and planning decision-making

The Court held that the right to freedom of conscience enshrined in the Charter had two important ramifications for the decision-making process in this case.

First, by operation of s 32, the objective of providing a safe and pleasant environment for all Victorians under s 4(1)(c) of the Act should be understood as contemplating the establishment of appropriate religious facilities for Muslims to express their religious beliefs in community and in public, should they so wish.  It followed, the Court held, that

the facilitation of the practice of religious worship as such cannot itself be regarded as constituting a significant adverse social effect of a proposed use or development.  Objections to the religious beliefs of others are not town planning objections.

Second, by virtue of s 38 of the Charter, the responsible authority and the Tribunal on review were required to consider the impact of granting or not granting a permit on the human rights of affected persons.  In Hoskin, this required the decision-maker to consider the benefits of the mosque for potential congregants, even if the permit applicant itself (as an incorporated association) did not possess rights under the Charter.

This analysis has two consequences – one narrower and one broader:

·         The narrow consequence is that, in considering applications for places of worship, responsible authorities will need to take into account the enhancement of adherent’s human rights that comes with having a place of worship.  The weight to be given to any such enhancement will, of course, depend on the particular circumstances of the case – for example, the absence of any other mosques in Bendigo meant that proposed mosque in Hoskin would provide greater enhancement than if there were other mosques operating in Bendigo. 

·         The broader implication is to affirm the significance of Charter rights generally (not merely freedom of conscience) as mandatory relevant considerations for planning decision-makers (including planning authorities) under s 38.  Responsible authorities will need to make sure that they are familiar with the rights which may be implicated by planning decisions to ensure that those are ‘properly considered’.  For example, by parity of reasoning with Hoskin, the freedom of association guaranteed by s 16 and the cultural rights recognised by s 19 may be relevant in determining whether to grant a permit for a place of assembly.

Significant social effects

The other major issue addressed by the Court is the proper approach to the assessment of ‘significant social effects’ under s 60(1)(f) of the Act by decision-makers.  The Court articulated a number of principles relevant to the assessment task:

1. Significant social effects are a mandatory relevant consideration under the Act and must be considered in determining whether to grant a permit.
2. A significant social effect may be positive or negative. A single use or development may have both positive and negative significant social effects.  Both will need to be considered.
3. The weight to be given to a significant social effect is a matter for the decision-maker.  There is no rule that the existence of a significant social effect is necessarily determinative of whether a permit should or should not be granted.
4. What is a ‘social effect’ will depend on all the circumstances of the case as well as the state of society at the time.
5. Whether a particular ‘social effect’ is significant is a question of fact and degree.  The Act does not require a particular approach to be taken in assessing significance.  In particular, a formal ‘social impact assessment’ is not required to determine whether a use may have a significant social effect.  It is open to the decision-maker to make his or her own assessment based on the evidence available.
6. Allegations that a use will have a significant social effect need to be assessed objectively.  The mere assertion of such an effect does not establish that it will or may occur. 
7. The absence of evidence of a significant social effect may, in some circumstances, be evidence that the alleged social effect will not occur or will not be significant.  In Hoskin, the Tribunal relied upon the absence of evidence of adverse social effects associated with other mosques as evidence that the feared social effects associated with this mosque would not arise.  The Court approved this.
8. The question of whether a social effect is significant will be informed by
   a.     The likelihood of the effect occurring; and
   b.    The gravity of the effect if it does occur.
9. In some cases, it may be appropriate to take a precautionary approach to the assessment of significant social effects, i.e., to give an alleged significant social effect some weight notwithstanding a lack of certainty over whether the significant social effect will actually occur.
10. The question of significance will also be informed by the:
    a.     The disclosed intentions of the permit applicant; and
    b.    The ability to ‘confine and control’ the use through the imposition of conditions.

It is now for planning decision-makers to determine the precise contours of what constitutes ‘social effects’ and how these interrelate with issues such as amenity and need.  Interestingly, the Court appeared to take a broad view of ‘social effects’ as encompassing both these issues – in discussing positive and negative effects, it referred to the example of a helipad in or near a park, which would negatively affect the use and enjoyment of the park, but which, positively, could provide urgent medical transport if required.

Much of the Court’s analysis would also be relevant to planning authorities in the assessing the social impacts of planning scheme amendments under s 12(2)(c) of the Act, although – as the Court noted – the social impacts to be considered under that section need not be ‘significant’.

Separately, many of the principles articulated by the Court appear equally applicable to the assessment of significant economic effects under s 60(1)(f) and economic effects more broadly under s 12(2)(c).

Other matters

The Court also commented on two other matters of potentially broader significance:

The test to be applied to appeals from VCAT to the Court of Appeal

The Court noted that there was open question over whether, in light of the new civil appeals regime introduced in 2014, appeals from the Tribunal to the Court of Appeal continued to be governed by the principles articulated in Hulls v Department of Premier and Cabinet or were now subject to the ‘reasonable prospect of success’ test set out in s 14C of the Supreme Court Act 1986.

In practice, it may be that there is little difference between an order which is ‘attended by sufficient doubt’ to warrant the grant of leave and one which has ‘reasonable prospects of success’.  This view is supported by the fact that, in the three cases where the Court has noted the issue (Hoskin, Ikosidekas v Karkanis; and 24 Hour Fitness Pty Ltd v W&B Investment Group Pty Ltd), it has always declined to resolve it on the basis that it would not make any difference.

In Ikosidekas, Mandie and Kyrou JJA both expressed the view, obiter, that, as a matter of statutory construction, the better view was that Hulls continued to govern appeals under s 148.  This approach would have the advantage of consistency as the test for leave against an order of the Tribunal would not vary depending on the identity of the Tribunal member.

The test for the grant of a permit

There has been some debate in the Tribunal’s case law over whether the test for the grant of a permit is one of ‘net community benefit’ or one of ‘acceptable outcomes’.

The Court in Hoskin appears to have come down on the side of ‘net community benefit’.  It commented that the ultimate matter for planning decision-makers to consider in determining whether a permit should be granted is ‘whether the proposed use and development is in the public interest in the sense that it will result in net community benefit.’ 

This impression is reinforced by the Court’s reference to a passage of the judgment of Osborn J, as his Honour then was, in Rozen v Macedon Ranges Shire Council where his Honour appeared to equate an acceptable outcome with an outcome that provides a net community benefit.

Like the question of the test to be applied for the grant of leave, it is likely that this issue will not matter in many cases.  It may, however, be relevant to those marginal cases where the permit applicant seeks to advance a ‘negative’ case in the sense of arguing that all that is required is an outcome that is not unacceptable.

For further information please contact:

Greg Tobin
Principal
Harwood Andrews
T: 03 5225 5252
E: gtobin@harwoodandrews.com.au