Hoskin v Greater Bendigo City Council

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0088

JULIE HOSKIN & ANOR	Applicants
v
GREATER BENDIGO CITY COUNCIL & ORS (According to the attached Schedule)	Respondents

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JUDGES:	WARREN CJ, OSBORN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 November 2015
DATE OF JUDGMENT:	16 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 350
JUDGMENT APPEALED FROM:	Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124

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ADMINISTRATIVE LAW – Application for leave to appeal – Victorian Civil and Administrative Tribunal – Appeal on questions of law – Whether proper question of law agitated by proposed grounds of appeal – Nature of review jurisdiction of the Tribunal –Whether the Tribunal misdirected itself – Whether the Tribunal had regard to an irrelevant consideration – Whether findings of fact open – Proposed grounds have no prospect of success – Leave to appeal refused.

HUMAN RIGHTS – Charter of Human Rights and Responsibilities Act 2006 – Relevance to the construction of Planning and Environment Act 1987 – Freedom of religion – Proper consideration of a relevant human right in the making of a decision – Castles v Secretary of the Department of Justice (2010) 28 VR 141 approved.

PLANNING LAW – Planning and Environment Act 1987 – Multifactorial assessment for net community benefit and acceptable outcomes – Construction of s 60(1)(f).

WORDS AND PHRASES – ‘significant social effect’.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P King	Robert Balzola & Associates
For the First, Fourth and Fifth Respondents	No appearance
For the Second Respondent	Ms M Foley	Maddocks Lawyers
For the Third Respondent	Mr C J Townshend QC with Ms E C V Porter	Best Hooper Lawyers

WARREN CJ:
OSBORN JA:
SANTAMARIA JA:

Introduction

Australian Islamic Mission Inc (‘the permit applicant’) wishes to construct and use a mosque with associated facilities in an industrial zone in the City of Greater Bendigo. The associated facilities include a community sports hall, an education facility and a caretaker’s dwelling. In order to proceed, the proposed use and development required a planning permit from the Greater Bendigo City Council (‘the Council’).

When notice of the permit application was advertised, it attracted some 254 objections coming from 435 persons. It also attracted a number of expressions of support.

Whilst a very wide range of matters was agitated by the objectors, the majority of the objections expressed central fears and concerns that the grant of the proposed permit would result in an increased practice of the Islamic faith within Bendigo resulting in cultural change and socially objectionable behaviours.

The Council, having considered the material put forward on behalf of both the permit applicant and the objectors, determined to grant a permit for the proposed use and development.

A group of the objectors (‘the group objectors’) then sought a merits review of the Council’s decision pursuant to the provisions of s 82 of the Planning and Environment Act 1987 (‘the P&E Act’). The permit applicant also sought a merits review pursuant to s 80 of the P&E Act in respect of certain conditions imposed by the Council as responsible authority upon the proposed permit. These provisions of the P&E Act invoke the review jurisdiction of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) pursuant to s 48 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).

Pursuant to s 84A of the P&E Act, a party in a proceeding for review under the Act is not restricted at the hearing to any grounds previously notified to the other parties.

At the Tribunal hearing, there was a material amplification of the case for the group objectors which had previously been put to the Council and, in turn, a material amplification of the response of the permit applicant to those objections and of the Council’s analysis of the issues arising from the permit application. Both evidence and submissions were put before the Tribunal which had not been put before the Council.

After a six day hearing, at which detailed submissions were made on behalf of the parties and evidence was called from a series of expert witnesses including town planners, the Tribunal determined to grant a permit on amended conditions.[1] Two of the objectors (‘the appellant objectors’) now seek leave to appeal the Tribunal’s decision pursuant to s 148 of the VCAT Act.
[1]Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124 (‘Reasons’).

Such an appeal is limited to an appeal on questions of law.[2]
[2]Transport Accident Commission v Hoffman [1989] VR 197, 199; Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 59 [44].

It is not open to this Court to entertain further debate as to the merits of the Tribunal’s decision on the facts. It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.[3]
[3]S v Crimes Compensation Tribunal [1998] 1 VR 83, 88–93; Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, 59 [44].

This Court’s function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.

The two appellant objectors who bring the present application both reside more than three kilometres from the proposed mosque site. Not surprisingly perhaps, their application focuses upon the way in which the Tribunal dealt with the group objectors’ case as to alleged significant social effects that they fear the proposed mosque will have upon the community of Greater Bendigo.

The appellant objectors do not challenge the Tribunal’s decision with respect to the following issues:

·alleged inadequacies in the detail of the permit application;
·the modification of the proposal by way of agreement to varied permit conditions;
·the appropriateness of the size of the proposal;
·the categorisation of the proposed use under the planning scheme;
·the need for the facility;
·the appropriateness of the site for the proposed use;
·the consistency of the proposed use with the purposes of the zone;
·residential amenity impacts including traffic, noise, headlights and the height and lighting of the minaret;
·economic impacts;
·future potential development;
·car parking;
·access and traffic considerations;
·built form and design;
·native vegetation;
·geotechnical considerations;
·floor levels;
·the permit applicant’s estimate of the cost of the development.

In essence, the appellant objectors now complain that the Tribunal misdirected itself in the approach which it adopted in assessing their concerns with respect to adverse social effects. In particular it is contended that the Tribunal’s considerations miscarried because of a failure to correctly construe s 60(1)(f) of the P&E Act. That section required the Council at first instance and the Tribunal on review to consider any significant social effects which the decision maker considered the proposed use and development may have.

It is further contended that the Tribunal wrongly treated the absence of supporting evidence as dispositive of the group objectors’ case as to significant social effects when that absence of evidence should have led the Tribunal to remit the matter for further consideration by the Council.

Before turning to the way that the Tribunal resolved the issue of significant social effects and the specific grounds upon which the appellant objectors seek leave to appeal, it is necessary first to say something further both about the test for the grant of leave to appeal and the statutory context in which the Tribunal was required to consider the matter now in issue.

The test for the grant of leave

In the present matter, the parties did not make detailed submissions upon the question of the applicable test for the grant of leave to appeal from a decision of the Tribunal to the Court of Appeal. Following the commencement of the Court of Appeal’s new civil appeals regime on 10 November 2014, there is an extant question[4] as to whether the ‘real prospect of success’ test in s 14C of the Supreme Court Act 1986 displaces the Hulls test[5] that has historically applied under s 148 of the VCAT Act.
[4]See, eg, Ikosidekas v Karkanis [2015] VSCA 121; 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216.
[5]See Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.

The matter was raised with counsel at the hearing of the application and brief oral submissions were made on the issue. No party contended that any distinction between the tests was of significance for this case.

For the reasons that follow, we have concluded that neither of the appellant objectors’ two proposed grounds of appeal has any prospect of success. Accordingly, it is unnecessary to resolve in this case the question of whether the s 14C test applies to this application. As the proposed grounds do not satisfy either test, we would refuse leave to appeal.

The objectives of planning in Victoria

Section 4(1) of the P&E Act states that the objectives of planning in Victoria are:
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c)to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d)to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
(e)to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;
(f)to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
(g)to balance the present and future interests of all Victorians.[6]
[6]Emphasis added.
A central thrust of the permit applicant’s case before the Tribunal was that the community of ‘all Victorians’ includes those who follow Islam. Thus, the proposed permit will facilitate development in accordance with objectives (c), (f) and (g) stated above by enabling the exercise of religious freedom by Bendigo residents within a purpose-built facility in Bendigo. Islamic worship in Bendigo currently occurs within a portion of a building at La Trobe University.

In support of this case, the permit applicant submits that the P&E Act is to be construed in a manner which gives effect to the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).

Sections 14 and 19 of the Charter seek to protect the human rights to freedom of culture, religion and belief. Section 14 states:

(1)Every person has the right to freedom of thought, conscience, religion and belief, including—
(a)the freedom to have or to adopt a religion or belief of his or her choice; and
(b)the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2)A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.[7]

[7]Emphasis added.

Section 19(1) of the Charter states:

All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language.[8]

[8]Emphasis added.

Section 32(1) of the Charter provides:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.[9]

[9]Emphasis added.

We accept that the provisions of ss 14 and 19(1) of the Charter inform the construction of the objectives of planning as they are stated in s 4 of the P&E Act and the terms of s 60(1)(f) of the Act relating to significant social effects upon which the debate in this matter ultimately focussed.

The objective of facilitating development which secures a safe, pleasant and efficient working and living environment for all Victorians must be understood to embrace the development and provision of appropriate facilities for worship by those holding Islamic religious beliefs ‘as part of a community, in public’.

Conversely, 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. It is only if the practice of religious worship has consequential significant adverse social effects that its social characteristics could raise a question of whether a land use for religious worship was inappropriate.

There is a body of common law principle, which the Tribunal referred to, which also supports a like approach to the construction of the relevant provisions of the P&E Act. In Canterbury Municipal Council v Moslem Alawy SocietyLtd,[10] McHugh J observed, in a case of statutory construction, that Australia has always been a multi-religious society. His Honour also said:[11]

Furthermore, in my opinion, Australian courts should be slow to adopt an interpretation of a legislative instrument which would have the effect of preventing the use of premises in a neighbourhood by some of those who wish to practice their religion while at the same time allowing others to practice their religion in the same neighbourhood. The preservation of religious equality has always been a matter of fundamental concern to the people of Australia and finds its place in the Constitution, s 116. As Mason J pointed out in Attorney-General (Vic); ex rel Black v The Commonwealth:[12]
… To the Australian colonists the preservation of religious equality was perhaps more important than the preservation of religious freedom for the simple reason that they had experienced the disadvantages of religious inequality and it posed a more immediate threat than the absence of religious freedom.

Although this case is essentially concerned with a question of statutory construction, at back of the proceedings is a question of freedoms to exercise religious beliefs. ‘… Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society’.[13] If the ordinance is capable of a rational construction which permits persons to exercise their religion at the place where they wish to do so, I think that a court should prefer that construction to one which will prevent them from doing so.

[10](1985) 1 NSWLR 525.

[11]Ibid 543–4 (citations in original). Applied in New Century Developments Pty Limited v Baulkham Hills Shire CouncilDevelopments (2003) 127 LGERA 303, 317 [66].

[12](1981) 146 CLR 559, 617.

[13]Per Mason ACJ and Brennan J in Church of New Faith v Commissioner for Payroll Tax (1983) 154 CLR 120, 130; 57 ALJR 785, 787.

On appeal to the High Court, Mason, Wilson, Brennan, Deane and Dawson JJ referred to a construction of the planning scheme ordinance there in issue which had the effect of discriminating against any group or sect with a particular type of worship as reflecting ‘an approach that would lie ill with currently accepted standards of religious equality and tolerance in this country.’[14]
[14]Canterbury Municipal Council v Moslem Alawy SocietyLtd (1987) 162 CLR 145, 149.

The Charter is relevant in this case not only to the proper construction of the objectives of planning in Victoria and to the proper understanding of the notion of significant social effects. It also imposed an obligation upon the Council and, on review, the Tribunal to have regard to the human rights of the proposed future users of the mosque when deciding whether or not to grant the permit.

The Council is defined under s 4(1)(e) of the Charter as a public authority.

Section 38(1) and (2) provide:

(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

A central thrust of the group objectors’ case before the Tribunal was that there is an unacceptable risk that the community of Greater Bendigo as a whole will be adversely affected if the proposed use is permitted. Further, it was submitted that the Charter was irrelevant to the Tribunal’s decision because neither the Council nor the permit applicant were human beings.[15]
[15]Reasons [97].

The Tribunal applied the following observations of Emerton J in Castles v Secretary of the Department of Justice:[16]

The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a ‘common or garden’ activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

[16](2010) 28 VR 141, 184 [185] (‘Castles’).

We interpolate that this passage in Castles[17] was recently approved of and applied by this Court in Bare v IBAC.[18] In that case, Mr Bare alleged that a police officer had mistreated him in breach of rights recognised by the Charter. He further alleged that he had a right to an independent investigation by the Office of Police Integrity that had been denied, and that the employees of the Office of Police Integrity had not acted compatibly with the Charter when deciding not to investigate his complaint.
[17]Ibid.
[18][2015] VSCA 197.

Mr Bare made an application to the Supreme Court for judicial review of the decision not to investigate his complaint. His application was dismissed. He appealed and his appeal was upheld by majority. The above passage from Emerton J in Castles[19] was accepted by all members of the Court as a correct analysis of the application of s 38(1) to cases where a party alleges a public authority failed to give proper consideration to a relevant human right in making a decision.[20]
[19](2010) 28 VR 141, 184 [185].
[20][2015] VSCA 197 [221] (Warren CJ), [288]–[289] (Tate JA), [535]–[538] (Santamaria JA).

The Tribunal went on to further conclude as follows:[21]

While the Tribunal accepts that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified. The Tribunal accepts that the responsible authority does have obligations under the Charter. The responsible authority is a public authority under s 6 of the Charter and, like the Tribunal in this review proceeding, is required to give proper consideration to the rights of individuals and the rights of the potential users of the mosque and associated facilities. That is the case notwithstanding that the permit applicant, as an entity, does not itself have rights under the Charter. It is significant that there are two limbs to s 38(1) of the Charter. The first deals with acting ‘incompatibly with a human right’. This limb is certainly applicable to a natural person who is a party and contends for a human right. The second limb prohibits the public authority ‘in making a decision’ from failing ‘to give proper consideration to a relevant human right’. Clearly, there can be a ‘relevant human right’ whether or not a natural person is a party to the proceedings. Here, the human rights of the individuals who will use the mosque are relevant. Those rights are properly identified by the responsible authority and permit applicant.

[21]Reasons [99].

These conclusions were not challenged before us. We agree that the human rights of the proposed users of the mosque were relevant to the Tribunal’s decision.

Equally importantly, in terms of the issues raised before this Court, for the reasons we have explained above, the Charter also bears on the proper understanding of the compatibility of the proposed land use with the objectives of planning in Victoria and on the proper understanding of the relevant notion of significant social effects. We shall return to these questions below.

The administrative scheme

The objectives of planning are implemented under the P&E Act through a planning framework of administrative regulation of land use. The initial objectives of that framework are stated in s 4(2):
(a)to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;
(b)to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
(c)to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;
(d)to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;
(e)to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;[22]
[22]Emphasis added.
Consistently with these administrative objectives, the underlying objectives of planning in Victoria are implemented through the mechanism of planning schemes which facilitate and regulate different forms of land use. This is done through a system of zones provided for by standard planning provisions.[23] Within the zones, a specified land use may be as of right, a permit required use, or a prohibited use.
[23]P&E Act ss 4A, 7.

One of the uses provided for in the standard planning scheme provisions and hence contained in the Greater Bendigo Planning Scheme (‘the planning scheme’) is the use of ‘place of assembly’, a sub-category of which is ‘place of worship’. Place of worship is specifically defined to include a ‘mosque’:[24]

Place of worship Land used for religious activities, such as a church, chapel, mosque, synagogue, and temple.

[24]Greater Bendigo Planning Scheme cl 74.

Place of worship, including a mosque, is an as of right use in the General Residential, Township and Mixed Use zones (subject to a limit upon gross floor area) and hence does not require a permit for use within the areas within which most of the residents of Bendigo live. On the other hand, place of worship including a mosque is a permit required use in an Industrial 3 zone, within which the proposed mosque site is located.[25]
[25]The purposes of the Industrial 3 zone (as set out in the Greater Bendigo Planning Scheme cl 33.03) are as follows:
To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid inter-industry conflict.
To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.
To allow limited retail opportunities including convenience shops, small scale supermarkets and associated shops in appropriate locations.
To ensure that uses do not affect the safety and amenity of adjacent, more sensitive land uses.

In determining whether a permit should be granted, the Council, as responsible authority in the first instance, and the Tribunal, in turn, when carrying out a merits review, must ultimately consider whether the proposed use and development is in the public interest in the sense that it will result in net community benefit.

Clause 10.04 of the planning scheme articulates this test as follows:[26]

Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.
Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
Consistent with the objectives of local government under the Local Government Act 1989, municipal planning authorities are required to identify the potential for regional impacts in their decision-making and co-ordinate strategic planning with their neighbours and other public bodies to achieve sustainable development and effective and efficient use of resources.

[26]Greater Bendigo Planning Scheme cl 10.04 (emphasis added).

The test of net community benefit implicitly recognises that a proposal may have both benefits and disbenefits which must be jointly evaluated.

It follows that it will not be sufficient for objectors to simply establish that a particular proposal will or may cause some planning disbenefit in order to demonstrate that a permit should be refused. Conversely, it will not be sufficient for a permit applicant to simply demonstrate that a proposal will or may convey some planning benefit in order to establish that a permit should be granted.

To like effect, cl 65 of the planning scheme requires a responsible authority to decide whether a proposal for which a planning permit is sought will produce ‘acceptable outcomes’:[27]
[27]Ibid cl 65.

DECISION GUIDELINES
Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

In Rozen v Macedon Ranges Shire Council, Osborn J addressed the test of ‘acceptable outcomes’ as follows:[28]

The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. An outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.
[28](2010) 181 LGERA 370, 408 [171]. This test was recently approved by this Court in Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 [32], [34] (Warren CJ) and [102]–[103] (Garde AJA).

Matters which the responsible authority must consider

Section 60(1) of the P&E Act sets out a series of matters which the Council, as responsible authority and, in turn, the Tribunal on review must consider in weighing up a decision concerning a permit application:[29]
[29]Emphasis added.

Before deciding on an application, the responsible authority must consider—
(a)the relevant planning scheme; and
(b)the objectives of planning in Victoria; and
(c)all objections and other submissions which it has received and which have not been withdrawn; and
(d)any decision and comments of a referral authority which it has received; and
(e)any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and
(f)any significant social effects and economic effects which the responsible authority considers the use or development may have.

Section 60(1A) sets out further matters which may be relevant considerations.

Clause 65.01 of the planning scheme also provides as follows:[30]
[30]Greater Bendigo Planning Scheme cl 65.01.

Approval of an application or plan
Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:
· The matters set out in Section 60 of the Act.
·     The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
·     The purpose of the zone, overlay or other provision.
·     Any matter required to be considered in the zone, overlay or other provision.
·     The orderly planning of the area.
·     The effect on the amenity of the area.
·     The proximity of the land to any public land.
·     Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
·     Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
·     The extent and character of native vegetation and the likelihood of its destruction.
·     Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
·     The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

Both the terms of s 60 and the terms of cl 65.01 of the planning scheme mean that the consideration of most planning permit applications is multi-factorial. It will require not only a predictive judgment as to potential factual consequences of the proposed use or development but also an evaluation of the weight to be given to individual matters in the context of the case as a whole.

The debate in this case centres upon s 60(1)(f). We make the following preliminary observations about that provision.

(1) Section 60(1) describes matters which the responsible authority and, in turn, the Tribunal must consider. It does not stipulate that a particular matter should necessarily be determinative of the decision as to whether a permit be granted or refused.

(2) It is for the responsible authority and, in turn, for the Tribunal on review to determine whether something constitutes a significant social effect and what weight it should be given in reaching a decision whether to grant or refuse a permit.

(3) ‘A significant social effect’ might be either positive or negative.

(4) A particular use may have social effects which are both positive and negative. Thus a helipad erected on or adjacent to public parkland may have adverse social effects in the sense that it adversely affects the public use and enjoyment of the parkland but at the same time it may convey overwhelming social benefit if it services an adjoining hospital trauma centre.

(5) Both s 12(2)(c) of the P&E Act, which relates to planning scheme amendments, and s 60(1)(f) give effect to the planning framework objective stated in s 4(2)(c), namely to provide for explicit consideration of social and economic effects when decisions are made about the use and development of land.

(6) The language of s 60(1)(f), however, materially confines the type of social effect which must be considered. The identification of ‘significant’ social effects is to be contrasted with the language of s 12(2)(c) of the P&E Act which simply requires a planning authority in preparing a planning scheme or amendment to take into account ‘its social effects and economic effects’.

(7) The notion of social effect is necessarily a protean one — land uses change, the composition of society changes and particular patterns of behaviour within society change over time.

(8) The notion of significant social effect is not defined by stipulated criteria. ‘Significant’ is an ordinary English word. Whether a potential effect is significant is thus a question of fact.

(9) The mode of assessing the significance of a possible social effect is not prescribed by the P&E Act.

(10) The question of whether something may constitute ‘a significant’ social effect involves an evaluative judgment of fact and degree.

(11) The statutory scheme places the responsibility for that evaluative judgment in the first instance with the responsible authority (ordinarily the elected council)[31] and in the second, in cases such as the present, upon merits review with an expert tribunal.[32] It does not place responsibility for that judgment with this Court. Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[33]
[31]The responsible authority may also be the Minister or a person nominated in the planning scheme, P&E Act ss 13(2), 61A.
[32]See VCAT Act sch 1 cl 52; Attorney-General (Victoria) v The Warehouse Group (Australia) Pty Ltd (2002) 19 VAR 111, 115–6 [17]–[19]; (2002) 11 VPR 113, 117–8 [17]–[19].
[33](1986) 162 CLR 24, 40–1 (citation omitted).

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and the decision made within those boundaries cannot be impugned.

(12) Although s 60(1)(f) requires a prospective judgment about possible effects of a proposed use, the question whether those effects will be significant is logically informed both by the possible gravity of the effect and the probability of its occurrence. It follows that it is proper for a decision-maker to consider the probability of postulated consequences in deciding whether what is in issue is a ‘significant’ possible effect.

(13) In considering whether a possible social effect is significant it will be proper to have regard, not only to the planning scheme definition of the use for which a permit is sought, but also to the applicant’s disclosed intentions[34] and the capacity to confine and control the proposed use by permit conditions.

[34]Franceschini v Melbourne & Metropolitan Board of Works (1980) 57 LGRA 284, 288.

The social effects alleged to be significant

The written objections lodged with the Council in response to the advertised notice of the planning permit application were not put in evidence before this Court. The transcript of the Tribunal hearing demonstrates, however, that in cross-examination Ms Hoskin, the first appellant objector, adopted her written objection to the Council including, in particular, the following statements:

·A permit for an Islamic mosque is a permit for Sharia law.
·The Islamic Mission is used as a loophole to obtain permits, open mosques and overwhelm by the influx of sheer numbers of Muslims.
·When their numbers are sufficient they then try to force the laws of the land to be changed to Sharia law.
·Entire suburbs are now no-go zones in Europe, as they have been totally taken over by Muslims who are enforcing their own Sharia laws instead of those of the host country.
·Ultimately people feel unsafe and are forced to sell their homes and leave the area which makes way for the Muslim population to buy the homes and take over.
·People are intimidated and threatened and pushed out.
·Why would the Bendigo City Council even entertain this planning proposal when the very nature of Islam, Sharia law and Quran stands in direct opposition to our culture, our laws and our own Constitutional foundations?
·To properly assess the proposed planning application for an enormous Islamic mosque to be built here, which, one must conclude, would mean a huge influx of Islamic migrants to Bendigo, there must be thorough investigation of all the issues.

Upon the application for leave to appeal before this Court, counsel for the appellant objectors submitted that Ms Hoskin raised the issue of significant social effects in ‘a very clear way’. We have some real difficulties with this submission. The objection in effect asserted that an Islamic mosque was an intrinsically unacceptable land use because of the very nature of Islam. It went on to postulate a cascading series of catastrophic consequences if the mosque were permitted without articulating any sensible evidentiary basis for the opinion expressed.

The planning officer’s report to Council summarised the objections to permit lodged on social/religious grounds as follows:

·Opposition to and concern over influence of Islam (ie root of violence, negative change in communities, terrorist threat, introduction of Sharia law, dilution of Christian values, treatment of women).
·Concern over a Muslim enclave occurring around the mosque.
·Impact on the health and wellbeing of the community.

The group objectors’ case was materially elaborated by way of submission and evidence called on their behalf at the Tribunal hearing. In particular, Mr Tesdorpf was called to give expert town planning opinion evidence on behalf of the group objectors. He expressed the opinion that no permit should be granted for the proposed mosque until there had been an independent social impact assessment of the proposed use. When asked whether there was anything about this particular use or development which correlated to the need for a social impact assessment, he gave evidence as follows:

The thing that is most noticeable to me is, first of all, there were a large number of objections, there was about 250 as I recall, and they came from a fairly wide field, not just immediately local people. But if you look at the things that those objectors — and I’m not making a judgment here about whether what those objectors are saying is true or not, that’s not what I’m going to talk about — but if you look at the concerns that were expressed in one of those objections, they focused on, I suppose, what we might loosely call the controversial issues about Islam and western culture. You know, it’s in front of us every day in the newspapers and in the news reports and various other things that are happening; it’s a hot button issue, there’s no doubt about that, not just in Australia but in other parts of the world. I think, if you look at some of the fears that were expressed by a lot of the objectors — for example, they felt that Islam was diametrically at odds with the established Australian culture and beliefs and constitutions and, you know, the system of our society, and there were some references made to Sharia law and how women are treated and so on. There were fears and concerns about whether approving a development like this or a use like this might lead to the establishment of what some people referred to as an enclave. Then there were fears and concerns raised about — well, there were allegations made, I suppose — about the degree to which people of the Islamic faith are prepared to fit into our culture, our western culture as we know it.

Mr Tesdorpf went on to say that although it was true that the group objectors had not put forward any evidence to substantiate their concerns, the Council had an equal responsibility to dig into the issue and assess it properly. He expressed the opinion that what the Council had really done was to dismiss the concerns that had been raised by a vast majority of objectors without any evidence one way or the other.

Mr Tesdorpf’s views as to the necessity for a social impact assessment were contested by the Council and the permit applicant both by way of submission and by way of conflicting opinion evidence adduced from town planning witnesses. In particular, Ms Peterson, who was called to give expert opinion evidence on behalf of the permit applicant expressed the forceful opinion that mere expressions of fear of social consequences were not planning considerations and could never justify the refusal of a planning permit which was otherwise demonstrated to be appropriate.

The Tribunal’s decision

The Tribunal commenced its decision with a summary of its conclusions:[35]
[35]Reasons — Summary [1]–[5].

The Australian Islamic Mission Incorporated applied to the Greater Bendigo City Council for a planning permit to develop a mosque, sports hall and associated facilities on a site in East Bendigo. This would provide a purpose built facility for the Muslim community that currently worships at facilities offered by Latrobe University [sic].
The proposal has generated a high level of public interest, both during the processing of the permit application by the responsible authority and since proceedings were lodged with the Tribunal following the Council’s decision to grant a permit for the proposal.
Following the withdrawal with leave of the Tribunal of several group applicants for review, and other procedural orders issued by the Tribunal over many months, the proceedings for determination are:
(1)application P1142/2014, a group application for review of a Notice of Decision issued by the responsible authority to grant a permit for the proposal; and
(2)application P1395/2014, a conditions review brought by the permit applicant regarding seven conditions included on the Notice of Decision issued by the responsible authority. The responsible authority and permit applicant reached agreement in relation to this proceeding during the hearing.

The case must be decided according to law and having regard to the relevant provisions, policies, and decision guidelines in the Planning and Environment Act 1987 (Vic) and the Greater Bendigo Planning Scheme, and having regard to any significant social effects and other relevant planning considerations. In reaching its decision, the Tribunal has also considered the many procedural issues raised by the group applicants.
In summary, the Tribunal found:
(1)no evidence of procedural fairness being denied to the group applicants. Rather, the Tribunal has afforded the group applicants every opportunity to prepare and present their case including lengthy adjournments of the proceeding in order to obtain expert evidence;
(2)no evidence of any significant social or other effects to the community as a result of the development and use of the mosque; and
(3)on its planning assessment, the proposal is an acceptable outcome having regard to the location of the subject land and the suite of planning scheme policies and provisions that apply. It is a good location that, with main road frontages and its relationship to industrial land, will have limited offsite amenity impacts. Nearby residences, some of which are in the Industrial 3 Zone, will not be unreasonably affected by the proposed use and development.

The Tribunal then dealt in turn with the following matters:

·the nature of the applications before it;
·the hearing process;
·procedural matters raised on behalf of the group objectors;
·an overview of the proposal, the subject land and its setting;
·the legislative framework within which the decision in both proceedings must be made;
·submissions relating to social and economic effects of the proposal;
·submissions and evidence relating to planning issues;
·the findings of the Tribunal; and
·the proposed permit conditions.

In the course of dealing with procedural matters, the Tribunal dealt specifically with complaints concerning the processing of the permit application by the Council. The Tribunal emphasised that it had dealt with the permit application afresh based on all of the material placed before it:[36]

Throughout the group applicants’ case, criticisms were made of the responsible authority’s assessment and consideration of the permit application. It was suggested that it was insufficient, cursory, or lacking in its consideration of matters contained in the written objections. It was argued that the failure to provide full and timely information to the objectors disadvantaged them unfairly and prejudicially. Further, Ms Hoskin gave evidence about difficulties in obtaining information from the responsible authority and the failure of the responsible authority to conduct a consultation meeting. Mr Balzola submitted:
We submit that the applicant Mrs Julie Hoskin is possessed of human rights being a human being. We further submit that on evidence tendered, objectors were denied access to environmental information, denied participation in environmental causes concerning this development and therefore denied their human rights.

The group applicants expected more to be available from the responsible authority or required by the planning process than the [P&E Act] mandates. Even if there are relevant matters that were not explored in sufficient detail during the processing of the permit application by the responsible authority (and this is not established), the Tribunal has heard this permit application afresh based on all of the material placed before it. The parties have had the opportunity for their submissions and evidence to be considered and assessed fully by an expert, independent Tribunal within the scope of the statutory framework for planning decision-making. All parties have been provided with all information tendered in this proceeding by other parties, and the Tribunal’s file is able to be inspected. Recordings or transcripts of proceedings have been obtained by the parties. It is noted that the complaint about access to information has not been made in relation to the Tribunal’s hearing or access to information before the Tribunal.

[36]Reasons [62]–[63] (emphasis added) (citation omitted).

In dealing with the planning and legislative contexts within which it was required to make its decisions, the Tribunal canvassed relevant provisions of the planning scheme, including the land use and development controls affecting the subject land, relevant planning scheme policies, a Council strategy relating to the appropriate provision of industrial land and the East Bendigo Structure Plan.

It then considered relevant provisions of the Charter and common law principles bearing on the relevance of freedom of practice of religion.

In dealing with social impacts and effects, the Tribunal referred to s 4(2)(d) of the P&E Act as setting out the relevant objective of the planning framework and then quoted the relevant provisions of s 60 of the P&E Act.[37] It acknowledged that environmental, social and economic effects must be considered where the effects were considered by the responsible authority (or the Tribunal on review) to be significant and related to the proposed use or development. It then referred to prior decisions of the Tribunal concerning the application of s 60(1)(f) and, in particular, the decision of the Tribunal in Rutherford v Hume City Council.[38]
[37]See [41] above.
[38][2014] VCAT 786 (‘Rutherford’).

In Rutherford,[39] the permit applicant sought to establish a Shiite Islamic mosque and related facilities on land at Coolaroo. The site was immediately adjacent to St Mary’s Ancient Church of the East. The congregation of that church was comprised mainly of people of Assyrian background, many of whom had fled violence and human rights abuses in Iraq at the hands of Islamic extremists. The Tribunal accepted that in these particular circumstances there would be a significant social effect if members of the congregation of St Mary’s were so affronted by the proposed mosque that they elected not to continue to use the church. Ultimately, however, the Tribunal concluded that any significant social effects upon the church community and, in turn, the broader community, were outweighed by other social and economic effects and other planning considerations. The Tribunal in the present case noted that in Rutherford the Tribunal had made six observations about s 60(1)(f):[40]
[39]Ibid.
[40]Reasons [109] (citation omitted).

(1)the effects to be considered are those that the decision-maker considers to be significant, rather than those that may simply be contended or alleged as significant by a party;
(2)the significant social and economic effects must have a causal connection to the use or development proposed in the permit application under consideration;
(3)the identification of effects should commonly and preferably occur through a formal and independent social impact or socioeconomic assessment, or [be] objectively ascertained through the decision maker‘s expertise and/or material before it;
(4)consideration of social effects pursuant to the [P&E Act]:
·     must be objective, specific, concrete, observable and likely consequences of the proposed use or development;
·     must be sufficiently probable to be significant; and
·     should not be based on philosophical, moral or religious values;
(5)mere opposition by a section of the public, or a large number of objections is not, of itself, evidence of social effect; and
(6)effects must be balanced with any other significant social and economic effects.

The Tribunal recorded that none of these principles was challenged by the group objectors.

The Tribunal also referred to New South Wales authority relied upon by the group objectors. In particular, it referred to statements by Lloyd J of the New South Wales Land and Environment Court in New Century Developments Pty Limited v Baulkham Hills Shire Council.[41] The Tribunal noted that this decision was concerned with a different legislative and statutory planning context. In particular, the conclusions expressed were made in the context of an amenity assessment rather than a consideration of the requirements of s 60(1)(f) of the P&E Act. The Tribunal nevertheless observed:[42]

However, a conclusion that the subjective fears and concerns of residents would be accorded little, if any, weight if there was no ‘objective, specific, concrete, observable likely consequence’ is consistent with previous decisions of this Tribunal.

[41](2003) 127 LGERA 303.

[42]Reasons [113] (citations omitted).

The Tribunal next elaborated the objections pursued before it by the group objectors through the submissions made on their behalf by legal representatives and through the evidence called from Mr Tesdorpf with respect to social effects. It is not disputed that this elaboration fully and fairly summarises the matters put forward on behalf of the group objectors at the Tribunal hearing:[43]
[43]Reasons [116].

Number of objections:
(1)the quantity and quality of objections are a significant factor in this particular development;
(2)a large proportion of the Bendigo community oppose and are offended by this development; and
(3)the number of objections and the controversy that has arisen about this permit application are among the reasons why a social impact assessment should be required.

Substance of objections:
(1)Mr Tesdorpf said a social impact assessment should have been required because of:
(a)the frequency with which religious, social and cultural issues were cited;
(b)the controversial nature of issues cited by many objectors focusing on opposition to, and concern with, Islam; and
(c)the controversial nature of the proposal in the community and the broader issues of religious diversity under debate in the wider national media landscape;

(2) claims by either side need to be independently tested;
(3)whether or not the fears are founded, they are genuine and have not been properly considered to determine if they are well founded;

(4) the objections are not irrational or unsubstantiated; and
(5)the content of the objections made to the responsible authority and not withdrawn include conflicts and incompatibility of Islam with Australian constitutional law, a need to protect youth from being radicalised, the impact of Sharia Law on the community, safety issues, and that the facilities should not become a recruiting ground.

Lack of assessment:
(1)the responsible authority did not consider, other than in a dismissive and cursory way, the social impacts and effects referred to in the objections. There is no indication that it thought carefully about the concerns and issues raised before making its decision;
(2)it was incumbent on the responsible authority to consider these impacts through s 60(1)(f) of the [P&E Act] rather than the onus being on the group applicants;
(3)there is no objective, independent testing or assessment of social impacts and effects, and this is a failure of both the responsible authority and the permit applicant. Moreover, there is no such assessment before the Tribunal, and the Tribunal is not in a position to determine in favour of the permit applicant;
(4)it is not possible to determine if the objections are general or specific to this proposal because no assessment has been undertaken; and

(5) section 60(1)(f) of the [P&E Act] mandates a social impact assessment.
Contended significant social effects:
(1)a mosque has specific and different attributes to other places of worship;
(2)there are concerns about Islam and its integration with western culture;
(3)approval of the use and development will affect social cohesion and a sense of belonging, cause offence and a feeling of exclusion to members of the community, and affect their lifestyle;
(4)fear that approval of the mosque will mean more people dressed in Islamic dress, potential abuse or harassment, and will change the character of the area;
(5)there is a fear of, and lingering concerns about, the ‘Islamification of Bendigo’. Approval of the current proposal, and future development plans, will create a concentration of one culture in one location — that is, an enclave or super centre of Islam, and that the size of the centre will attract more people of Islamic faith and drive the demand. Homes will be purchased by Muslims; and
(6)the creation of an Islamic precinct or enclave that proceeds out from the boundaries of the subject land under consideration in this proceeding. The information regarding the acquisition of additional land by the permit applicant was not something available to the public prior to approval by the responsible authority. This in itself has social impact and amenity consequences.

The Tribunal then dealt with each of the aspects of the group objectors’ case which it had identified in the summary. In dealing first with the relevance of the number of objections, the Tribunal referred to the decision of Emerton J in Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd.[44] In that case, her Honour concluded, in part, that expressions of disapproval as to the appropriateness of a planning outcome did not of themselves evidence a significant social effect. We respectfully agree.
[44][2013] VSC 505.

The Tribunal then went on to conclude that, in the present case, the level of objection was not, in any event, high. This is hardly a surprising conclusion. The City of Greater Bendigo has a population of approximately 110,000. The objectors were not restricted to those who lived or worked in the vicinity of the subject land or indeed in Bendigo. A total of 11 persons ultimately pursued the group objectors’ application for review.

In dealing with the substance of the objections, the Tribunal again emphasised the process of deciding the matter de novo, referring to the decision of the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd[45] as describing an example of the process of balancing competing objectives which the hearing brought into focus. The Tribunal went on to say:[46]

The Tribunal accepts that grounds and contentions have been raised by the group applicants that are relevant. However, it finds for the reasons given below that none of the suggested significant social impacts have been substantiated by the group applicants. Furthermore, it must be noted that there was little (if any) evidence that the concerns held by the group applicants, such as those relating to Islam and its integration with western culture, had any direct relevance to the specific use at the subject land. As the Tribunal has said, the subject land is in an industrial zone, surrounded by roads on three sides. It is distant from the main residential areas of Bendigo.

[45][2015] VSCA 27.

[46]Reasons [124].

We interpolate that the issue of nexus between the use the subject of the permit application and the feared effects is necessarily implicit in the notion of significant social effects. It was the possible social effects of the specific proposal before the Tribunal with which the Tribunal was concerned.

The Tribunal then turned to the propositions advanced on behalf of the group objectors through the evidence of Mr Tesdorpf that the proposed use and development should be the subject of a social impact assessment before it could properly be permitted:[47]

One of the concerns raised by the group applicants is that neither the responsible authority nor the permit applicant undertook a social impact assessment of the impacts alleged by the group applicants and other objectors.
Social effects can be evaluated through a formal and independent social impact or socio-economic assessment, or be objectively assessed through the decision-maker’s expertise based on the material before it. In this case, the officer’s report to the responsible authority shows that the alleged social impacts identified in objections were considered by the responsible authority in the context of s 60 of the [P&E Act].

[47]Ibid [125]–[126].

Again, we interpolate that we respectfully agree with the Tribunal that the terms of s 60(1)(f) do not require an independent third-party social impact or socio-economic assessment to be undertaken simply because an objector asserts that a proposal will have significant social effects.

It is open to the responsible authority to determine that no formal social impact assessment by an independent expert is required in order for it to determine whether a proposed use will result in net community benefit.

In turn, on review, an absence of adequate information may lead the Tribunal to be unpersuaded of net community benefit. On the other hand, the Tribunal may be satisfied that, in its expert opinion, having regard to the material before it, the question of social effects is capable of proper objective assessment by it.

The Tribunal next set out the passage in the officer’s report to Council which dealt with the social impacts alleged by objectors in their written objections. The terms of this report are now subject to a specific attack which was not put to the Tribunal and we will refer to them in greater detail when dealing with the proposed grounds of appeal.

After referring to the officer’s report the Tribunal went on to state:[48]

As has been stated in these reasons, and contrary to submissions on behalf of the group applicants, s 60(1)(f) of the [P&E Act] does not mandate a formal social impact assessment conducted by the responsible authority. Consideration of all objections by the responsible authority is required, but this does not mean that a formal social impact assessment must be undertaken in every case. The decision-maker must consider all relevant matters and must decide whether any social impacts are positive or negative, and if negative, whether they are significant.

[48]Ibid [129].

We respectfully endorse this conclusion.

The Tribunal then referred to the course followed in the case of Rutherford,[49] where nothing was produced by objectors to materially assist the Tribunal in assessing the alleged adverse social effects of a proposal.
[49][2014] VCAT 786.

In Rutherford, the Tribunal stated:[50]

… To refuse to allow the establishment of a Shiite 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 [this]. 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 ethnic 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.

[50]Ibid [83]–[84] (emphasis added).

The question of the proper approach to be taken by the Tribunal in the absence of evidence of significant social effects is one of the matters agitated on the application for leave to appeal and we shall again return to it in dealing with the proposed grounds.

It should be noted, however, that in the present case the Tribunal did not rely on the opinion of Council as to significant social effects in the way that it did in Rutherford.[51]
[51][2014] VCAT 786.

The Tribunal expressed the following conclusion with respect to the contention that a permit should not be granted in the absence of a further social impact assessment:[52]

The Tribunal does not consider that the extent of concern and issues identified should have caused a permit to be refused by the responsible authority, or that the permit application should be remitted by the Tribunal back to the responsible authority because the responsible authority did not consider the social impact issues raised to be significant or to justify further investigation. While the Tribunal is cognisant that fears and concerns are held by the group applicants, they have produced no expert evidence and very little material of any type to support the assertions that they make. If there were the types of impacts associated with mosques as submitted by the group applicants, and there are numerous mosques in Australia, then there would be evidence of those impacts available for the group applicants to rely upon. The Tribunal has considered the submissions making brief reference to other cities in which mosques have been built, in which significant impacts have been asserted. However, no evidence or material has been put before the Tribunal which provides a proper basis to establish any similar or likely causal links to the proposal relating to the subject land in these proceedings. The Tribunal accepts the position in Rutherford that it is a matter for the group applicants to provide evidence of the existence of the social impacts submitted. Mere assertion that there will be a concentration of people of the Islamic faith around the subject land following the building of a mosque, or that the facility will expand in the future, does not demonstrate significant adverse social effects. The objections on the basis of adverse social effects fail for want of proof. In the absence of evidence, and having regard to the State and local policy encouraging cultural facilities, the group applicants have not established significant adverse social effects or any net adverse social impact. The group applicants have failed to provide any evidence to satisfy the Tribunal that their social impact concerns are warranted.

[52]Reasons [131].

The Tribunal went on to elaborate aspects of these preliminary conclusions and expressed the following ultimate conclusions in respect of the group objectors’ contentions relating to significant social effects:[53]

The Tribunal has already stated that it has not been presented with evidence or submissions with any substance as to what the consequences of the fears and assertions would be with respect to the proposed mosque, and its ancillary components, at the subject land. There is no evidence of abuse, harassment, intimidation, or loss of wellbeing or social cohesion associated with the operation of the existing places of Islamic worship in Bendigo, or in any other location in Victoria or beyond. Mr White’s reference to cities such as Bradford and Lakemba were not substantiated with any documents or material of any type, and there was no identified specific link with this permit application.
As has already been said, the subject land is located in an industrial zone, and is surrounded by roads on three sides. While there is a mix of residential and non-residential properties in the general vicinity of the subject land, the subject land is well separated from the main residential areas and activity centres of Bendigo. In the Tribunal’s view, there is little (if any) prospect, having regard to the site, its size, the road pattern, nearby industrial development and the site’s location remote from the principal residential areas and activity centres of Bendigo, that it will experience the variety of concerns advanced by the group applicants. In the Tribunal’s view, these are overstated and unfounded.
As will be discussed later in these reasons, there is no known proposal for an expansion of facilities in this location, submitted by the group applicants as being the creation of an ‘enclave’. Any future proposal, should it be made, would be considered on its own merits. The presence of the link road will affect the contiguity of land and the prospect of any road connection to the new link road is most unlikely. The subject land will therefore in all likelihood be isolated from land to the west of the link road and, moreover, a rezoning would potentially be required for any uses such as a primary or secondary school. The speculation of the group applicants associated with growth of Islamic education or other facilities is not persuasive and does not have relevance to the decision this Tribunal must make in this proceeding.

[53]Ibid [132]–[134].

On their face, these conclusions were entirely open to the Tribunal. The Tribunal was correct to focus upon the potential consequences of the proposed use. For the reasons we have already explained, the notion of a significant social effect is informed by the relevant provisions of the Charter relating to the exercise of freedom of religion. It follows that it was not open to the group objectors to object to a form of religious worship in itself.

The Tribunal was also correct to conclude at [131] that the mere assertion that there will be a concentration of people practising the Islamic faith around the subject land if the proposal proceeds does not demonstrate a significant adverse social effect. In considering the potential consequences of the proposed use, the Tribunal reasoned that, in the context before it and in the absence of evidence of any specific behavioural problems or loss of wellbeing or social cohesion associated with comparable uses, it was not satisfied that the proposal was likely to result in any significant adverse social effects. We shall return in more detail to this process of reasoning below. It is the subject of attack under the second proposed ground of appeal.

Ultimately, the Tribunal’s conclusions as to significant social effects fed into an evaluation of the merits of the permit application as a whole by reference to the concept of net community benefit:[54]

Clause 10.04 of the planning scheme requires the decision maker to integrate a range of relevant policies, and balance conflicting objectives, in favour of net community benefit and sustainable development for the benefit of present and future generations.[55]
The Tribunal has carefully considered all of the grounds relied upon by the group applicants in this proceeding. For the reasons set out above, the Tribunal is not persuaded that the responsible authority’s decision to grant a permit should be set aside, or that changes are required to the conditions agreed upon between the responsible authority and the permit applicant.
The proposal will provide a place of worship and associated facilities that will serve the Muslim community of Greater Bendigo. It is reasonable for a purpose-built facility to be available on a suitably located site. There is no such place of worship currently available to those practising Islam in the region. The subject land is assessed as a good site for the mosque given its locational and physical contexts. Ancillary facilities will be available to others in the community within the restrictions imposed by the permit conditions, notably the sports hall, which would potentially benefit others in the community who are not of the Muslim faith.
The proposed development will bring change to the physical appearance of the locality. It may have some impacts on the environs of the subject land, notably in terms of increased traffic movement. Having regard to the physical and strategic planning contexts that apply to this proposal in this location, including the main road abuttals and limited interface with land within a residential zone, the Tribunal is satisfied that the impacts are acceptable within the parameters set by the zoning, policies and expectations of the planning scheme. The design, landscape and built form outcomes are all acceptable, as are potential amenity impacts subject to the permit conditions restricting the use based on patron numbers and hours of operation.
Alleged social, economic and environmental impacts have not been demonstrated as being significant or likely with respect to the proposed mosque and ancillary uses at the subject land.
[54]Reasons [207]–[211] (citation in original).
[55]See Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27 [30]-[35], referring to Rozen v Macedon Ranges Shire Council (2010) 181 LGERA 370, 408 [171] and Knox City Council v Tulcany Pty Ltd [2004] VSC 375.

The proposed grounds of appeal

The proposed grounds of appeal as amended are that:

1. The Tribunal erred in finding that the Council had considered the social impact of the subject development in accordance with s 60(1)(f) of the P&E Act; and

2. The Tribunal erred in finding that the objector appellants carried the onus of proving any adverse social impact in accordance with s 60(1)(f) of the P&E Act.

The first ground is unsatisfactory in form because its language is apt to embrace a complaint of error of fact rather than law.[56] As the focus of the proposed ground was elaborated in the written material lodged with the Court prior to argument on this leave application, it appears that it was intended to raise the proposition that the Tribunal was required by the terms of s 60(1)(f) to find that the responsible authority had been obliged to obtain an independent expert social impact assessment before it could determine to grant a permit.
[56]State of Victoria v Bacon [1998] 4 VR 269, 285 and the authorities there cited.

The premise of this proposition is misconceived. As we have already observed,[57] s 60(1)(f) does not in terms require the Council to obtain an independent expert social impact assessment as a precondition to the grant of a planning permit.
[57]See paragraphs [77]–[79] and [81]–[82] of these reasons.

Ground 1 elaborated

As the matter was argued on the application for leave to appeal, however, a new central proposition was advanced. It was submitted that the Council had misdirected itself in applying the terms of s 60(1)(f) and that, in consequence, the Tribunal erred in law:

(a) by itself misconstruing s 60(1)(f); and/or

(b) by having regard to and relying upon the decision of the Council with respect to the considerations raised by s 60(1)(f) when the Council’s decision was fundamentally flawed.

The starting point for these submissions is the terms of the planning officer’s report to Council. The Tribunal set out verbatim the terms of the relevant part of the officer’s report in the course of dealing with the objectors’ submissions concerning the alleged requirement for a social impact assessment. The Tribunal said:[58]
[58]Reasons [127] (emphasis added).

The officer’s report to the responsible authority assessed the social impacts alleged by objectors in the following manner:
Section 60(1)(f) of the Planning and Environment Act 1987 (the ‘Act’) mandates the consideration of:
any significant social effects and economic effects which the responsible authority considers the use of development must have.

Furthermore Clause 10.02 of the Planning Scheme sets out that the objectives of planning in Victoria are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.
Therefore it is clear that decision-makers must consider the social impacts of their decisions on planning applications.
Many objectors have raised concerns about the social impact of allowing the construction of a mosque in Bendigo. In particular many have given opinions on the Islamic faith and the impact that this has had on communities in other parts of Australia and other parts of the world. For instance some have said that the building of a mosque will lead to local residents being harassed and abused by attendees. This would clearly be an adverse social impact if it were to occur.
Notwithstanding the opinions held about the impact of the building of mosques in other communities, to refuse the application on social impact grounds would require evidence that the building of a mosque in Bendigo would indeed have adverse social impacts. Officers have considered the comments made and have concluded that opinions that a mosque has had a social impact in other places in Australia and around the world is not compelling evidence that the impacts perceived by those objectors would happen in Bendigo.
Moreover if the application were to be refused on social impact grounds without good reason this would be a failure to provide social and cultural facilities which would be contrary to the objective of State Planning Policy Clause 19.02–4 Distribution of social and cultural infrastructure.
[sic]

It is submitted that this report misstates the terms of s 60(1)(f). In particular, the appellant objectors now point to the substitution of the word ‘must’ for ‘may’ in the initial quotation of the subsection and the subsequent postulation of a requirement in order to substantiate a relevant social effect for an objector to demonstrate by evidence that the proposed mosque ‘would indeed have adverse social impacts’. Thus it is submitted that the officer’s report denuded s 60(1)(f) of its true meaning by postulating certainty not possibility as a precondition of relevant significant social effects.

This point was not taken before the Tribunal and it is therefore not surprising that it was not specifically addressed in the Tribunal’s Reasons.

Whilst Council did not in terms adopt the officer’s report, it may, however, be accepted for present purposes that the misquoting of the subsection in all probability misled the members of the Council as to the terms of s 60(1)(f).

Nevertheless, it does not follow that the Tribunal made the same error. The relevant test was stated by Smith J (with whom Adam J concurred) in Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works:[59]

… the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal’s reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

[59](1971) 38 LGRA 6, 18.

In the present case, the Tribunal itself correctly stated the terms of the statute[60] and made very clear that it proposed to apply those terms to the evidence before it. We do not accept that when the Tribunal’s decision is read as a whole it is arguable that the Tribunal itself misconstrued s 60(1)(f). We are not satisfied the Tribunal did other than apply the terms of the section as it correctly stated them.
[60]Reasons [107].

Likewise, the fact that the Tribunal set out the advice forming part of the basis on which the Council made its decision does not demonstrate that the Tribunal adopted that advice as the basis of its own decision. When the Tribunal’s Reasons are read as a whole then it is plain that the Tribunal did not. The Tribunal repeatedly emphasised that it proposed to address the merits of the permit application afresh by reference to its own reading of the relevant legislation, planning scheme provisions, the submissions put to it and the evidence before it.

In this regard, it should be noted that at the Tribunal:

(a) the permit application was modified from that before the Council by the permit applicant’s agreement to conditions as to the following matters:

· a cap on the number of patrons on site at any one time;

· an obligation to not use the sports hall during prayers;

· an obligation to make the sports hall available for community use; and

· limitation of hours for the mosque and sports hall.

(b) the group objectors’ grounds of objection were reformulated by way of an amended written application for review which modified and elaborated contentions made in the original objections;

(c) the group objectors called evidence from Mr Tesdorpf substantially elaborating and changing the way the case as to adverse social effects was put from the case which was put to the Council;

(d) the Council and the permit applicant called evidence responding to the group objectors’ case and that evidence was also not before the Council;

(e) the Tribunal received both written and oral submissions which elaborated the basis of the Council’s position significantly more fully than the officer’s report which was provided to Council;

(f) the Tribunal received written and oral submissions both from the group objectors and the permit applicant which materially elaborated their cases as to social effects beyond the cases which were presented to the Council.

It follows that neither the group objectors’ contentions concerning adverse social effects, the arguments of the parties concerning those contentions, nor the evidentiary matrix which was placed before the Tribunal in respect of social effects were the same as those which the Council was asked to consider.

In turn, the Tribunal in this case did not place weight upon the view of the social effects taken by the Council as the elected representatives of the local community. As noted above, it did not conclude, as another division of the Tribunal did in Rutherford,[61] that in the absence of satisfactory evidence as to potential social effects it should ‘rely to an extent on the Council’s sense of the local needs and wellbeing of its community, leading to its balanced view in favour of the mosque locating at this site’.
[61][2014] VCAT 786.

The fact that the evidence before the Tribunal as to relevant social considerations was so different from that placed before the Council necessarily rendered the outcome of the Council’s decision concerning this aspect of the case of little, if any, weight.

In Enfield,[62] the judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ referred to the possibility that the decision of an administrative tribunal as to the characterisation of jurisdictional facts may be a matter to which a court on appeal gives weight when it is itself characterising those facts.[63] The plurality referred to the observations of Mason J in R v Alley; Ex parte New South Wales Plumbers & Gasfitters Employees’ Union:[64]

If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission’s knowledge of the industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent.

[62]City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (‘Enfield’).

[63]Ibid 155 [49].

[64](1981) 153 CLR 376, 390 cited in Enfield (2000) 199 CLR 135, 155 [48] (emphasis added).

The plurality emphasised that what was said should be understood as permitting rather than requiring recourse to the administrative decision.[65] The plurality endorsed Mason J’s statement with the qualification that the requirement that the evidence ‘remains the same’ should be read as including evidence which in all significant respects is substantially the same.
[65]Enfield (2000) 199 CLR 135, 155 [48].

By analogous reasoning in the present case, whilst the view of the Council as the local government body representing the Bendigo community might be regarded by the Tribunal as potentially relevant because of the Council’s representative knowledge and understanding of that community, the evidence before the Tribunal was not in significant respects substantially the same as that before the Council.

It follows that, whilst it was proper for the Tribunal to record the basis on which the Council considered the question of social effects, it was also necessary for the Tribunal to reconsider the question entirely for itself upon the material as it was before it. In this case, it is clear that this is precisely what the Tribunal did. The error of the Council upon which the appellant objectors now belatedly seek to rely was not material to the Tribunal’s decision.[66]
[66]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ).

In the circumstances, it is unnecessary to deal further with the potential consequences of the fact that the point now put at the forefront of the objector appellants’ case was simply not raised in the course of a six day hearing before the Tribunal. We should not, however, be taken to accept that a matter which, on proper analysis, went at best to the weight which could be accorded the Council’s decision by the Tribunal, is a matter which could now properly be said to give rise to an error of law. The Tribunal was entitled to deal with the weight of the evidence in a way which was responsive to the cases advanced before it.

For completeness, we should also record that it was not submitted that a jurisdictional error by the Council necessarily compelled the Tribunal to refuse to direct the grant of a permit. Nor could it be so contended. As Brennan J, when President of the Administrative Appeals Tribunal, said in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW):[67]

Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court of appeal or tribunal to review, quash or otherwise affect the decision.

The Tribunal is vested with the jurisdiction to consider the merits of a planning application both upon the fact of the making of a decision on such an application by the responsible authority or the fact of a failure to do so within the period stipulated by regulations.

[67]Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, 180.

The review jurisdiction of the Tribunal is not conditioned by a requirement for a valid determination of the permit application. Moreover, as the respondents to the leave application emphasised, the fundamental nature of the Tribunal’s jurisdiction was to carry out a merits review of the permit application. In this regard, it may be noted:

(a) as Nettle JA observed in Victorian WorkCover Authority v AB Oxford Cold Storage Co Pty Ltd,[68] the function of the Victorian Civil and Administrative Tribunal on a review of an administrative decision is not to sit in appeal from the decision made, but to re-exercise the essential function of the original decision-maker; in Mond v Perkins Architects Pty Ltd, Emerton J said:[69]
[68]Unreported, Victorian Court of Appeal, Nettle and Ashley JJA, 1 September 2006.
[69][2013] VSC 455 [10] (citations in original).

The Tribunal does not sit as an appellate tribunal in judgment on the findings and conclusions reached by the original decision-maker. Its function on a review of an administrative decision is not to sit in appeal from the decision, but to re-exercise the function of the original decision maker.[70] When exercising its review jurisdiction, the Tribunal reviews decisions on the merits. Its task is to ‘stand in the shoes’ of the original decision-maker and make the ‘correct’ or ‘preferable’ decision having regard to the material before it.[71] The Tribunal’s review must take place without any presumption as to the correctness of the decision under review and it must conduct its own independent assessment and determination of the matters necessary to be addressed.[72] While the Tribunal may have to consider the factual findings upon which the decision under review was based in order to decide whether that decision was the correct or preferable one, it must make its own findings of fact and is not bound by the original decision-maker’s findings of fact.
[70]Victorian WorkCover Authority v AB Oxford Cold Storage Co Pty Ltd (Unreported, Victorian Court of Appeal, Nettle and Ashley JJA, 1 September 2006), 9–10 [29]–[31].
[71]Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.
[72]Thirteenth Beach Coast Watch Inc v The Environment Protection Authority (2009) 29 VR 1, 16.

(b) in its jurisdiction with respect to planning reviews, the Tribunal may disregard failures to comply with the P&E Act.[73] Clause 62 of sch 1 of the VCAT Act provides:
[73]Rumpf v Mornington Peninsula Shire Council (2000) 2 VR 69, 88 [49].

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

(c) the Tribunal may amend an application for permit so as to embrace a use or development other than the use or development described in the original permit application;[74] this power may be exercised to overcome a jurisdictional defect in the original permit application and the potential appropriateness of this course under this and predecessor statutory provisions has been endorsed in emphatic terms;[75]
[74]VCAT Act sch 1 cl 64.
[75]Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157, 163.

(d) parties to the review are not restricted to grounds previously notified to the other parties;[76]
[76]P&E Act s 84A.

(e) the Tribunal is required by s 84B(2) of the P&E Act to take into account a series of matters additional to those to which the Council was required to have regard;

(f) the consideration of relevant circumstances is made as at the date of the Tribunal’s decision, not that of the Council’s decision;[77]
[77]See eg P&E Act s 84B(2)(g), (i), (j) and (ja).

(g) the Tribunal may join parties to the review proceeding who did not participate in the process before the Council;[78]
[78]VCAT Act s 60.

(h) the Tribunal is not bound by the rules of evidence and may inform itself on any matters it sees fit (subject to the rules of natural justice);[79]
[79]VCAT Act s 98(1).

(i) the Tribunal is not limited in its powers to affirming or overturning the Council’s decision. It may direct a permit be granted on conditions materially different from any imposed by the Council;[80]

(j) the Tribunal may direct that the Council may not subsequently amend a provision of a permit granted by the Tribunal;[81]

(k) where the application raises a major issue of policy and in certain other circumstances, the Minister may call in applications for review from the Tribunal.[82] The effect of this regime is to place the Minister in a position of overall supervision of the Tribunal empowering the Minister to make decisions with respect to significant social effects in cases in which he or she is satisfied intervention is warranted.

[80]VCAT Act s 51(1)(b); P&E Act s 85(1)(a), (b) and (e).

[81]P&E Act s 85(1A).

[82]P&E Act s 97B.

Not only do the Tribunal’s powers extend to curing jurisdictional defects in permit applications and overcoming jurisdictional errors in the process adopted by a responsible authority, where that is otherwise appropriate, the exercise of any of these powers may have the effect of materially changing the issues which must be decided on review from those which the responsible authority considered to have or lack significance.

The detailed provisions enabling the Tribunal to undertake a full assessment of a planning application on the basis of the material before it at the date of its decision are directly responsive to the complexity of the factors which may be relevant to a planning permit decision under the P&E Act and a planning scheme.

Moreover, insofar as the objectives of planning stated in the P&E Act envisage not only the regulation but the facilitation of development, the Tribunal’s powers to deal with the merits of an application must be given full effect.

It follows that, in as much as it was submitted in the course of argument on behalf of the appellant objectors that only the Council was given the task by Parliament of assessing significant social effects, this premise of the leave application is entirely misconceived. Likewise, the proposition that the Tribunal itself had no power to make an objective assessment of the question of significant social effects must be rejected.

At base, however, proposed ground 1 of appeal does not identify questions of law which have any prospect of success because:

(a) the Tribunal did not misdirect itself as to the terms of s 60(1)(f); and

(b) the Tribunal did not rely on the Council’s decision concerning significant social effects but formed its own view on this issue having regard to entirely new contentions and evidence.

Accordingly, leave to appeal on proposed ground 1 of appeal should be refused.

Ground 2 — the onus of proving adverse social impact

The appellant objectors next submit that the Tribunal erred in law in the way in which it addressed the lack of evidence of potential significant social effects in this case. As noted above, Mr Tesdorpf conceded, in the course of his evidence, that the group objectors had not put forward any evidence to substantiate their case. Nevertheless, it was submitted on their behalf before the Tribunal and, in turn, in this Court on behalf of the appellant objectors, that the Tribunal was bound to evaluate the potential adverse social effects which were raised by the group objectors by way of fears and concerns and failed to properly do so.

More particularly, it is now submitted:

(a) that the Tribunal erred in holding that, in the absence of evidence of significant adverse social effects, it was not obliged to consider whether the proposed use raised relevant issues of significant social effects; and

(b) that the Tribunal erred in failing to consider whether, in the absence of satisfactory evidence as to the significance of potential adverse social effects, the matter should be remitted for reconsideration by the Council in accordance with its statutory powers to so order.

It must be accepted that s 60(1)(f) imposed an obligation on the Tribunal to consider any significant social effects which it considered the proposed use or development may have.

We also accept that, in some circumstances, if the material before the Tribunal demonstrated a risk of a serious adverse social effect then uncertainty as to the probability of that risk may not justify discounting it as having no significance. An analogy may be drawn with the application of the precautionary principle to the consideration of environmental effects, which requires a decision-maker to take into account the seriousness of the risk in issue when considering scientific uncertainty as to the likelihood of its eventuation.[83]
[83]Rozen v Macedon Ranges Shire Council (2010) 181 LGERA 370; Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256 (Preston CJ) and the authorities there cited.

We do not, however, take the Tribunal in the present case to have done otherwise than squarely address the issue of risk of significant adverse social effect. We do not accept the appellant objectors’ submission that the Tribunal took the position ‘there is no need for us to make a decision because there is no evidence before us.’

First, the Tribunal properly discounted those substantial aspects of the group objectors’ case which could not properly be regarded as raising relevant issues of social effect. In this regard, the Tribunal was both entitled, and indeed required by the operation of the Charter on the proper construction of the P&E Act, to disregard the objections to the practice of Islamic religious worship in mosques as such. These objections bulked large in the case as it was expressed through the evidence of the first appellant objector and in the submissions made on behalf of the group objectors.

Secondly, the Tribunal was also correct to disregard objections to the apprehended possibility of further applications for development approval. Such proposals will fall to be evaluated if and when they are made.

Thirdly, the Tribunal was correct to conclude that mere assertions that a proposal would have adverse social effects do not demonstrate that the proposal may have significant social effects in terms of s 60(1)(f).

Fourthly, and more fundamentally, the Tribunal did not simply rely on the absence of evidence or what it called ‘submissions with any substance’ as to the feared consequences of the proposed mosque in a vacuum. The Tribunal placed reliance upon the absence of evidence in circumstances where there was an obvious evidentiary basis by reference to which the objectors might reasonably have been expected to seek to substantiate their case if there was any basis for it. In particular, there was no evidence of adverse social effects from the existing practice of Islamic worship at temporary premises in Bendigo or at mosques in comparable regional Victorian cities or at any other location in Victoria.

The Tribunal thus relied on an absence of evidence in a context in which it specifically found that it would expect evidence if the group objectors’ fears had an objective basis.

The finding by the Tribunal that it would expect the group objectors to produce evidence if there were any substance to their case with respect to social effects was also made in a broader context which included the following elements supporting the view that the proposed use was likely to be positive in its social effects:

·the land use in issue constituted an exercise of the human right to freedom of religious worship;
·a mosque is a facility expressly recognised by the planning scheme as a potentially appropriate sub-type of place of worship within the relevant zone;
·the proposal was put forward to better accommodate a use currently being conducted by members of the local community in temporary accommodation;
·the proposal accorded with planning scheme policies relating to the appropriate provision of cultural facilities;
·the proposal gave effect to the relevant objective of planning in Victoria, namely to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians, by providing for the specific needs of a section of the community; and
·accordingly, it was on its face reasonable for a purpose-built facility for this use to be made available upon a suitably located site within the municipality.

The Tribunal was entitled to use its expertise as an expert town planning tribunal to evaluate the significance of the absence of evidence supporting the group objectors’ case in this context.

The Tribunal was not bound by the rules of evidence and was entitled to inform itself as it saw fit.[84]
[84]VCAT Act s 98.

It was, in our view, entirely open to the Tribunal to address the possibility of adverse social effects arising from the proposal before it in the way that it did. In turn, the apparently low probability of such effects in the absence of any evidence based on readily observable comparable uses bore directly on the question of whether the perceived potential social effects could be regarded as significant.

It was open to the Tribunal in these circumstances to fail to be satisfied that the possibility of a relevant adverse social effect was material unless the group objectors put forward some objective factual basis on which to conclude that the risks they feared were or might be significant.

It was also proper for the Tribunal to consider the likelihood of potential significant adverse social effects within the context of the pattern of overall land use within Greater Bendigo. Accordingly, it was open to the Tribunal ultimately to conclude:[85]

In the Tribunal’s view, there is little (if any) prospect, having regard to the site, its size, the road pattern, nearby industrial development and the site’s location remote from the principal residential areas and activity centres of Bendigo, that it will experience the variety of concerns advanced by the group applicants. In the Tribunal’s view, these are overstated and unfounded.

[85]Reasons [136].

In City of Camberwell v Nicholson,[86] the Court considered the relevance of ‘perceptions of incompatibility’ of a proposed land use for the purpose of a brothel with the character of the neighbourhood. Ormiston J accepted that the Tribunal had not failed to take into account the perceptions of incompatibility expressed in 1,984 objections and three petitions concerning the proposed use. Rather, the Tribunal had simply not given them the weight which the Council and objectors submitted they should have.
[86]Unreported, Supreme Court of Victoria, Ormiston J, 2 December 1988.

Similar reasoning applies in the present case. The Tribunal has not failed to consider the group objectors’ fears and concerns. It has addressed them in the light of the evidence before it.

In the course of dealing with the relevance of objectors’ perceptions to the issues in the case before him, Ormiston J also stated:[87]

In every decision, in which discretions are exercised of the kind required to be exercised on town planning applications, the responsible authority or the Tribunal must assess as best it can the weight of all the relevant considerations and seek to evaluate them in order to reach a conclusion. As a matter of fact an opinion held by a large number of residents may be given greater weight than the views of a few cranks, but it is for the relevant body to assess that in each case and, if it reaches a conclusion that a particular perception is unreasonable, then surely it does not have to give it substantial weight or indeed any weight.

[87]Ibid 26.

We respectfully agree that perceived fears and concerns of objectors fall to be assessed by the Tribunal in the context of the circumstances of each case. In determining whether to give these fears and concerns any weight, it is for the Tribunal to consider and determine whether it regards the perceived fears and concerns to be unreasonable. When social effects are in issue, it is for the Tribunal to consider and determine whether it is satisfied the perceived fears and concerns can be objectively considered to raise issues of significant potential social effects.

In New Century Developments Pty Ltd v Baulkham Hills Shire Council,[88] Lloyd J in the Land and Environment Court of New South Wales considered whether a planning permit should issue for a mosque in the face of 5,170 objectors.[89] His Honour held that, in analysing the substance of objections from the public, issues of taste and morality should not necessarily be set aside and that it was in his view not difficult to envisage a development which caused such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds. Such antagonism would evidence a detrimental social impact upon the amenity of the area.[90]
[88](2003) 127 LGERA 303.
[89]Ibid 307.
[90]Ibid 316 [60].

On the other hand, Lloyd J also held that the consent authority under the New South Wales legislation should not blindly accept the subjective fears and concerns expressed in public objections and held that there had to be evidence that could be objectively assessed before a finding could be made of an adverse effect upon the amenity of the area. Whilst the authority was entitled to have regard to the views of the residents in the area, those views would be accorded little, if any, weight if there was no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.[91] As the Tribunal noted in the present case, this decision was made in a different statutory context from the present one and was concerned with ‘amenity impacts’ rather than ‘significant social effects’. Nevertheless, Lloyd J’s reasoning reflects the need for the decision-maker reviewing the appropriateness of the grant of a planning permit on the merits to objectively consider the reasonableness of the objections. Absence of evidence substantiating the objections must necessarily tell against the weight, if any, which they can be given.
[91]Ibid 316 [61]–[62].

In Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd,[92] Emerton J, after referring to these authorities, reached a conclusion to like effect, namely that the fact of dispute as to the appropriateness of a planning outcome does not of itself establish that when assessed objectively an objection has substance.
[92][2013] VSC 505, [55].

In the present case, the Tribunal did not hold that it was not obliged to consider the group objectors’ perceived fears and concerns with respect to potential social effects. The Tribunal considered those objections and recognised that they were relevant but was not persuaded that they were of substance in the absence of evidence in the circumstances of this particular case. It follows that the first question of law agitated in support of ground 2 is not reasonably arguable. The Tribunal did not in fact find that in the absence of evidence of significant social effects it was not obliged to consider whether the proposed use raised relevant issues of significant social effects.

Lastly, the argument with respect to the proposed grounds of appeal was put, in part, by reference to an alleged failure by the Tribunal to have regard to its own powers to remit matters for consideration by the Council. This line of argument also fails at the threshold. The Tribunal did expressly consider the group objectors’ submission that there had been a lack of adequate assessment of the proposed use and that accordingly the matter should be remitted to the Council.[93] There is simply no basis for inferring that the Tribunal was not fully aware of its powers. Nor could those powers somehow transform the group objectors’ case as to significant social effects into one of substance if that case in fact lacked substance.
[93]See Reasons [116] and [131] quoted above.

We would add for completeness that once a responsible authority has exercised its discretion as to whether it should request further information from the permit applicant in order to form a decision with respect to a permit application, and the application has been the subject of a completed referral process to public authorities and a completed objection process in accordance with the Act, then the permit applicant is ordinarily entitled to have the application decided by the responsible authority. If necessary, the permit applicant may review a failure by the responsible authority to so decide the matter by way of application to the Tribunal.

On the review of a decision by the responsible authority to grant a permit, refuse a permit, or fail to determine a permit application, the Tribunal under s 85 of the P&E Act has a series of primary powers which do not include referral back to the responsible authority for further consideration. Whilst we do not shut out the possibility that the Tribunal might exercise such a power under s 51(2)(d) of the VCAT Act in appropriate circumstances, in the ordinary course of events when the Tribunal reviews a decision to grant a planning permit and the material before the Tribunal does not enable it to be satisfied that net community benefit will result from a proposed permit, then the Tribunal should simply determine that a permit must not be granted under s 85(1). We add, because some argument was addressed to it, that s 51A gives the Tribunal an interlocutory power to remit matters to the responsible authority which, amongst other things, facilitates the settlement of applications for review prior to their final determination. No reference was made to this power by the group objectors before the Tribunal. Its existence demonstrates no error in the Tribunal’s reasoning.

Consideration of the Tribunal’s powers cannot enable the appellant objectors to overcome the fundamental failure of their case on the facts before the Tribunal. Once it is concluded that it was open to the Tribunal to reason as it did, with respect to the application of the relevant statutory criteria to the facts in this case, then that is the end of the substantive complaint made to this Court.

Reference to the powers of the Tribunal adds nothing to either of the proposed grounds of appeal.

Conclusion

For the above reasons, the application for leave to appeal should be refused. The proposed grounds of appeal do not raise questions of law which are reasonably arguable and they have no prospect of success because:

(a) the Tribunal did not misdirect itself as to the terms of s 60(1)(f);

(b) the Tribunal did not rely upon the decision of the Council with respect to significant social effects when that decision was flawed;

(c) the Tribunal did not find that it had no duty to consider significant social effects in the absence of evidence adduced by the objectors; and

(d) the Tribunal did not fail to consider whether the matter should be remitted for further consideration by the Council.

- - -

SCHEDULE OF PARTIES

S APCI 2015 0088
BETWEEN:
JULIE HOSKIN	Applicant
KATHLEEN HOWARD	Applicant
- and -
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	First Respondent
GREATER BENDIGO CITY COUNCIL	Second Respondent
AUSTRALIAN ISLAMIC MISSION INC	Third Respondent
GREG GARDE AO RFD	Fourth Respondent
MARK DWYER	Fifth Respondent

[2015] VSCA 350

16 December 2015