House of Peace Pty Ltd v Bankstown City Council

[2000] NSWCA 44

Reported Decision: [2000] 48 NSWLR 498
106 LGERA 440

New South Wales

Court of Appeal

CITATION:	HOUSE OF PEACE PTY LTD & ANOR v BANKSTOWN CITY COUNCIL [2000] NSWCA 44
FILE NUMBER(S):	CA 40846/98
HEARING DATE(S):	20 July 1999
JUDGMENT DATE:	16 March 2000
PARTIES :	HOUSE OF PEACE PTY LTD & ANOR v BANKSTOWN CITY COUNCIL
JUDGMENT OF:	Mason P at 1; Stein JA at 56; Giles JA at 57

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40047/98
LOWER COURT JUDICIAL OFFICER :	Sheahan J

COUNSEL:	Appellants: T F Robertson Respondent: N A Hemmings QC
SOLICITORS:	Appellants: Woolf Associates Respondent: Marsdens
CATCHWORDS:	Development consent - construing the purposes of an existing use - s109B(1) Environmental Planning and Assessment Act - use of land - place of public worship - mosque as church - the use of dictionaries. D
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40846/98
LEC 40047/98
MASON P

STEIN JA
GILES JA

Thursday 16 March 2000

HOUSE OF PEACE PTY LTD & Anor
v BANKSTOWN CITY COUNCIL

At issue in this appeal is the right of the appellants to rely on development consent given in 1954 for a “church” as planning authority to conduct a mosque. Development consent was originally given to the Presbyterian Church of New South Wales for “the erection of brick church and office”, a consent the second appellant relies on after 1995 to conduct their Muslim mosque in Sefton. Bankstown City Council (the respondent) sought orders in the Land and Environment Court that such use was not authorised by the 1954 consent.

The Trial Judge found that the appellants did not have a consent expressed in terms of use of the land as a place of public worship. His Honour was satisfied that the term “church” did not extend in 1954 to use as a mosque. He referred to a number of dictionary definitions and while some of them applied “church” to buildings used for non-Christian worship, He concluded that the overwhelming indication was that their ordinary meaning of the term as applied to a building would restrict it to Christian establishments.

HELD (by Mason P, Stein JA and Giles JA), upholding the appeal and setting aside the declarations and orders made by the Trial Judge and in lieu dismissing the application to the Land and Environment Court with costs in this Court and the Court below:

The Court is concerned not with the identity of the use of the user, but with the use of land. In the present context, attention is directed away from “church” as a body of believers to “church” as a building where particular types of activity take place.

Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 (referred); Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 (referred).

Dictionaries offer a reasonably authoritative source for describing the range of meanings of a word, but they can illustrate usage in context and never enter a particular interpretative task. While there is in the dictionaries a slight preponderance favouring an exclusive definition of “church” confined to buildings used for Christian worship, the dictionaries do not speak with one voice. Some evidence a broader (non-Christian) meaning. Some are less obviously relevant to Australia in the 1950s and none seek to view the term in a town planning context.

State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 (referred); Provincial Insurance Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 (referred).

An existing use for a development consent should instead be construed broadly and in terms of town planning. In the particular context of religious practice there is an additional reason for a liberal reading. Where an ordinance is capable of a rational construction which allows persons to exercise their religion at the place where they wish to do so, a court should prefer that construction. American law relating to the meaning of “church” in a zoning context is also instructive, the definition generally reflected in the case law is that of a building set apart for public worship. It would be an error to read the term “church” as referring only to Christian worship, it seems likely that “church” was used in its broader and operative planning law sense of a place of worship. The mosque fits this description.

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 (followed); North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 (followed); Royal Agricultural Society of NSW v Sydney CC (1987) 61 LGRA 305 at 310-311 (referred); Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525 (applied).

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40846/98
LEC 40047/98
MASON P

STEIN JA
GILES JA

Thursday 16 March 2000

HOUSE OF PEACE PTY LTD & Anor
v BANKSTOWN CITY COUNCIL

JUDGMENT

1    MASON P: At issue in this appeal is the right of the appellants to rely on development consent given in 1954 for a “church” as planning authority to conduct a mosque. 2    The first appellant owns land at 11-13 Helen Street, Sefton. On it stands a small building of about 100m² that was erected by the Presbyterian Church. Development consent was given to the Presbyterian Church of New South Wales in 1954 for the “erection of brick church and office”. The building erected shortly thereafter was used as a Presbyterian church for about 40 years. Since June 1995, the land has been occupied by the second appellant and used as a Muslim mosque. 3 The essential dispute is whether the appellants require fresh development consent under the current Bankstown Planning Scheme Ordinance. The appellants claim that they are entitled to rely upon the 1954 Consent given pursuant to the County of Cumberland Planning Scheme (CCPS). They rely upon s109B of the Environmental Planning and Assessment Act 1979 (the EPA Act) which stipulates that nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. 4 Use as a mosque is permissible with the consent of the Council under the Bankstown Planning Scheme Ordinance (BPSO) as a “place of public worship”. In 1996 the Council gave conditional consent for twelve months. That period had expired when these proceedings were commenced in the Land and Environment Court in April 1998. 5 The Council obtained declarations that the appellants’ use of the land for an Islamic mosque without the Council’s consent was a contravention of the EPA Act; and that such use was not authorised, as the appellants claimed, by the terms of the 1954 Consent. 6 The gazettal of State Environment Planning Policy No 4 - Development Without Consent (Amendment No 10) on 3 December 1999 qualifies the planning situation to a degree, but it does not remove the dispute. The Amendment inserts a new clause 8A as follows:

8A Places of public worship

(1) If:

(a) a building is or was last lawfully used for the purpose of a place of public worship of a particular kind, and
(b) the building could not, but for this clause, be used for the purposes of a place of public worship of another kind, except with development consent being obtained therefor,
the building may, without the necessity for development consent being obtained therefor, on not less than 40 days written notice being given to the council, be used for the purposes of a place of public worship of another kind, subject to subclause (2).
(2) This clause does not authorise the use of a building for the purposes of a place of public worship if the use will increase or create adverse environmental impacts, such as:
(a) emission of noise, or
(b) movement of motor vehicles, or
(c) parking of motor vehicles, or
(d) significant change in the hours of use.
(3) If, immediately before the commencement of a use of a building authorised by this clause, a condition of a development consent applied to the use of the building or the use of the land on which the building is erected, the condition applies to and in respect of the use of the building so authorised or the use of the land on which it is erected in the same way as it applies to and in respect of the former use.


In view of cl 8A(2) there are likely to be disputes having regard to the nature and extent of current use of the land as a mosque. The appellants maintain their stance that they already have an effective and sufficient consent.

The 1954 Consent

7    The 1954 Consent was for “erection of brick church and office”. Unfortunately, it is the only extant document that throws direct light upon the scope of the development approval then granted. Other records such as building plans have been destroyed by fire. 8 In 1954 development on the land was controlled by the CCPS which took its force from the Local Government (Amendment) Act 1951 (the 1951 Act). For land that was in a Living Area zone, consent was required for the erection or use of buildings for the purpose of a “place of public worship”. “Place of public worship” was defined to mean (cl 24):

… a building used or designed for use as a church, chapel or other place of public worship, and a building used or designed for use for the purpose of religious training.

9    The CCPS allowed a building application to be treated as an application for development consent (cl 41(2)). A file reference in the 1954 Consent indicates that this is what happened in this case. 10    The relevant terms of the 1954 Consent were as follows:

LOCAL GOVERNMENT (AMENDMENT) ACT, 1951

CUMBERLAND COUNTY PLANNING SCHEME
CONSENT TO DEVELOPMENT
The Council of the Municipality of Bankstown, as the Responsible Authority, hereby consents to the undermentioned development, viz:
Lot No 1 & 2 Section Deposited Plan 13939
Street HELEN ST & PROCTOR PARADE
Description of Development ERECTION OF BRICK CHURCH AND OFFICE
Conditions (If any) SUBJECT TO COMPLIANCE WITH COUNCIL’S BUILDING CODE
Name of Applicant PRESBYTERIAN CHURCH OF NSW
Address ASSEMBLY BUILDING, 44 MARGARET ST, SYDNEY
This approval does not relieve the applicant of the obligation to obtain approval of building plans under Part XI of the Local Government Act 1919 and before any building operations are commenced, plans and specifications must be approved by Council and a “Permit to Build” issued under Ordinance No 71.

11    The Consent is expressed in terms of “erection” of the church and office. Since, however, it operated as the development consent, it must be read as authorising the use of the structure for its intended purpose. In one sense, this appeal is all about what intended purpose was expressed in the Consent.

Proceedings in the Land and Environment Court

12    The Council has at all times accepted that the appellants are using the land as a “place of public worship” as that expression is defined in the CCPS. This is clearly established in The Council of the Municipality of Canterbury v Moslem Alawy Society Ltd (1987) 162 CLR 145. (For earlier stages in that litigation, see (1983) 51 LGRA 79 (Cripps J), (1985) 1 NSWLR 525, 55 LGRA 318 (Court of Appeal).) 13 The Council was successful in the Land and Environment Court on the narrower point that the appellants do not have a consent expressed in terms of use of the land as a place of public worship. The 1954 Consent refers to use as a “church”. Whatever the precise scope of the term “church”, Sheahan J was satisfied that it did not extend in 1954 to use as a mosque. 14    Declarations were made in the following terms (the respondents below being the appellants in this Court):

1 The Respondents by themselves, their servants, agents or assigns are using, suffering or permitted to be used the land known as lots 1 and 2 in the Deposited Plan 13939 (No 11-13) Helen Street, Sefton in the State of New South Wales (the “land”) for an Islamic Mosque without the consent of the Applicant under the Environmental Planning and Assessment Act 1979 being first had and obtained.
2 The Respondents by themselves, their servants, agents or assigns are using, suffering or permitting the land to be used for the purpose of an Islamic Mosque in contravention of the Environmental Planning and Assessment Act 1979.
3 The Respondents’ use of the land for the purpose of an Islamic Mosque is not authorised by the consent to development granted by the Applicant to Presbyterian Church of New South Wales on 23 February, 1954 for the erection of a brick church and office on the land.

15    Sheahan J accepted that no problem would have arisen had the 1954 Consent been expressed in terms of approval for a “place of public worship”. However, he accepted the Council’s submission that the primary task was to construe the word “church” in the 1954 Consent. He referred to a number of dictionary definitions, recognising that some of them applied “church” to buildings used for non-Christian worship, such as mosques and synagogues. His Honour concluded that the overwhelming indication from the dictionaries was that the ordinary meaning of the term as applied to a building would restrict it to Christian establishments. 16    The Moslem Alawy Society Case involved an environmental planning instrument that defined place of public worship in terms relevantly indistinguishable from the definition in the 1951 Act. The decision establishes that use of premises for worship falls within the definition notwithstanding that the premises are not open to the general public. This interpretation was applied to the Moslem Alawy Society, which is a small sect of Islam. The High Court described its corporate religious practices in the following terms (162 CLR at 147):

Like other followers of Islam, members of the Alawy sect see it as a fundamental requirement of their religious observance that they worship five times daily: before sunrise, after midday, in the late afternoon, at sunset and when the night is dark. Ideally, this worship is congregational - upon the call of the muezzin and under the leadership of the imam. It can however, be performed alone or as a member of a small group. It involves recitation, sometimes spoken and sometimes mental, of set forms of words, including verses from the Koran, and the adoption of prescribed postures (including standing, bowing, genuflecting, kneeling and prostration) while facing Mecca.

17    In the present case, Sheahan J referred to the evidence in the Moslem Alawy Society Case and in the present case about the actual usage of the site by the appellants. In this context he made the following findings of law and fact (par 66):

There is no doubt, at law or in fact, that a mosque is a place of public worship, as is a church, but the evidence in Canterbury and here indicates that the pattern of behaviour comprising such public worship is very different from that which one would expect of a Christian denomination, such as the neighbours of the subject land had come to expect between 1954 and 1995.

18    His Honour explained the finding by summarising (at par 69) the evidence relating to the actual use of the building during the time when it was used by the Presbyterian Church and the time when it was used as a mosque: ¨ As a Presbyterian church, the building attracted modest crowds, but only on Sunday mornings and for occasional weddings and funerals on other days. Its estimated capacity is 73. ¨ As a mosque, the building attracts between 20 and 50 people five times each day, at various times between 5:00 am and shortly after sunset, for short periods of 15-20 minutes. On Friday at lunchtime, up to 200 people might attend, causing the streets to be full of cars. At least twice a year, there are large functions within the building and in the surrounding yard when major Islamic festivals were celebrated. It is only on these occasions that a microphone is used, for approximately one hour after 8am. 19    This comparison was done in considering whether use as a “church” and use as “[an]other place of public worship” such as a mosque might properly have been conceived in 1954 as differences of significance. 20    After referring to the discussion about characterisation by Kitto J in Shire of Perth v O’Keefe (1964) 110 CLR 529 at 535, Sheahan J held that the approval for a “church” connoted use by Christian denominations and that it was not wide enough to embrace use as a mosque. His Honour recognised that two of the dictionaries included a definition of “church” that extended to a “place of public worship” of any religion, including an Islamic mosque. The nub of his reasoning as to the meaning of “church” appears in the following passage (par 80 of the judgment):

The question is not whether a church or a mosque is a place of public worship, but whether a mosque which embraces non-Christian worship, and indeed may exclude Christian worship, can be considered as a “church”. Even the Macquarie does not define a church as a mosque and an ordinary person would not have resort to the OHP (the “Historical Oxford”). The regular dictionaries in common usage by ordinary citizens make it clear that historically and presently a non-Christian place of public worship would not normally be connoted by the word “church”.

21    Sheahan J made the declarations as sought and awarded costs in favour of the Council.

Some general considerations

22    This dispute arises in a context, planning law. Several matters follow. Planning law “is concerned with the use of land - not with the identity of the user” (per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82). This means that it is no part of the Court’s function to seek as such to ensure that the pattern of worship adopted by the Presbyterians in 1954 continues. Nor is it open to favour or disfavour any pattern of religious expression. Equality before the law requires judicial agnosticism in this area. Notions of an established Church or established religion had passed away well before the end of the nineteenth century, not that Australians were blind to religious or sectarian differences. Even in 1954 Australia was a multicultural society, albeit much less so than now. 23 Emphasis upon the use as distinct from the person using the land reminds that a consent operates in rem. In an oft-cited dictum, Else-Mitchell J described a development consent as “not personal to the applicant but enur[ing] for the benefit of subsequent owners and occupiers, and in some respects … equivalent to a document of title” (Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324). In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293, Stephen J described a consent as “essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor”. 24    Cripps J’s statement that planning law is concerned with the use of land, not with the identity of the user also focuses attention upon the functions of environmental planning instruments and consents. They are concerned with physical use, environmental impact and amenity. In the present context, attention is directed away from “church” as a body of believers to “church” as a building where particular types of activity take place. This said, the physical structure and the activities from which it is designed may take its meaning from the organisation for whose use it was designed or created.

The role of dictionaries

25    The primary judge’s use of the dictionaries is criticised by the appellants as reflecting a search for a majority position and a preference for the narrower, less inclusive definitions over the broader if less generally used meanings. 26    It has been said that “words are only pictures of ideas on paper” (Isaacs J in Fell v Fell (1922) 31 CLR 268 at 276, citing Wilmot CJ in Dodson v Grew (1767) Wilm 272 at 278, 97 ER 106 at 108). Jackson J once remarked that “dictionaries are the last resort of the baffled judge” (Jordan v De George 341 US 223, 234 (1951)). 27 Nevertheless, dictionaries are frequently used, and this approach to statutory interpretation has support from the highest authority (see, eg State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 at 348). Few judges emulate Lord Wilberforce, who never used dictionaries for the purpose of determining the common understanding of words and shut his ears if they were referred to in court (see Bennion, Statutory Interpretation 3rd ed, 1997 p946). 28 A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose. I agree with the following remarks of Judge Randolph of the United States Court of Appeals for the District of Columbia Circuit (“Dictionaries, Plain Meaning, and Context in Statutory Interpretation” (1994) 17 Harv Jo L PP 71 at 72):

…citing … dictionaries creates a sort of optical illusion, conveying the existence of certainty - or “plainness” - when appearance may be all there is. Lexicographers define words. Words in the definition are defined by more words, as are those words. The trail may be endless; sometimes, it is circular. Using a dictionary definition simply pushes the problem back.

29    The limitations of dictionaries are discussed with magisterial clarity by Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1971) 25 NSWLR 541 at 560-1. Because the passage is lengthy I do not set it out. However, I respectfully agree with what his Honour has written there. 30 The task in hand is not a philosophical, linguistic or etymological exercise probing the inner or outer limits of “church” in 1954 Australian usage. In the end it is a search for the meaning of a particular document issued in a particular context. 31 With these caveats, I set out a range of dictionary definitions of “church”, confining myself to usage with reference to a building as distinct from a body of believers. I include the dictionaries cited by Sheahan J, but with reference to editions current in 1954 if available:

CHAMBERS TWENTIETH CENTURY DICTIONARY
(1972)

a house set apart for public worship, esp. that of a parish, and esp. that of any established or once established form of religion ….

COLLINS DICTIONARY OF THE ENGLISH LANGUAGE: An extensive coverage of contemporary international and Australian English
(1979)

1. A building designed for public forms of worship, esp Christian worship.

CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH (“COD”)
(4th ed, 1951)

Building for public Christian worship.

[The current (8th, 1990) edition gives as the corresponding definition “a building for public (usu. Christian) worship” .]

MACQUARIE DICTIONARY
(1981)
1. an edifice for public Christian worship.
….
9. a place of public worship of a non-Christian religion.

OXFORD ENGLISH DICTIONARY (“OED”)
(Corrected re-issue, 1933)

I. The building, the Lord’s house
1. A building for public Christian worship. (Distinguished historically from a CHAPEL or ORATORY, which is a building in some respect private, or not public in the widest sense.)

2. Applied to public places of worship of any religion: as a. (formerly) to heathen temples, Mohammedan mosques.
b. also to the Jewish temple. Obs.

[A symbol adjacent to a. and b. indicates that the usage is obsolete.]

SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES (“OHP”)
(3rd ed, 1944 reprinted with corrections 1959)

I.1. A building for public Christian worship (Cf Chapel, Oratory)
2. Applied to public places of worship of any religion, as Mohammedan mosques etc.

THE AUSTRALIAN POCKET OXFORD DICTIONARY
(5th ed, 1969)

building for public Christian worship esp. according to established religion of country.

32    The Macquarie Dictionary was first published in 1981. One of its Prefaces discusses the need for an Australian Dictionary. It explains the sense in which that publication was the first general reference dictionary offering a comprehensive survey of Australian English. This should caution against undiscriminating selection from the body of material set out above. It certainly cautions against undiscerning aggregation. (I am not inferring that Sheahan J committed either error.) 33    From this material I would draw the following tentative conclusions about the dictionary meaning of “church” in Australian English in the 1950s:

1. There is a slight preponderance favouring an exclusive definition, confined to buildings used for Christian worship.
2. Nevertheless, the dictionaries provide “evidence” of usage that extended beyond Christianity (eg Collins, OHP ), albeit that some (eg OED ) sources indicated this as an obsolete meaning.
3. The most authoritative Australian dictionary ( Macquarie ) supports the wider usage, albeit as at 1981.

This is not an existing use case: the 1954 consent governs

34 The respondent Council correctly submits that this case does not involve existing use in the strict sense of usage presently prohibited which is said to have commenced lawfully prior to current planning control. The trial was not run on that basis. Had it been, a serious issue of abandonment might have been raised, according to the Council (cf EPA Act, s109). 35 The issue is whether the use of the land by the appellants is “development in accordance with a consent that has been granted and is in force” (EPA Act, s109B(1)). No one suggests that the Consent is not continued in force by the transitional provisions of the BPSO. See also Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, Schedule 4 cl 7, Harris v Hawkesbury Shire Council (1989) 68 LGRA 183. Cf Auburn Council v Nehme [1999] NSWCA 383. Accordingly, the appellants have the benefit of the saving provisions of that section, notwithstanding the repeal of the planning instrument under which the consent was given. 36 Since the Consent has not lapsed or otherwise become unenforceable, it is the Consent that sets the boundaries of the appellants’ authority to use the land, not the actual or more limited use of the land by the first appellant’s predecessor in title (see Harris).

Construing consents to determine the development authorised

37    How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to “what, objectively determined, it might be said the Council meant by the permission which it gave to the … predecessor [in title]”. I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at par 23, it must speak according to its written terms, construed in context but having regard to its enduring function. Cases such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427 expound the textual interpretative principles involved. 38 Shire of Perth v O’Keefe is the locus classicus in relation to characterising the purposes of an existing use. It has also been applied to the issue of determining the scope of an extant development consent, which is a species of existing use rights (see eg ACR Trading, North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50). In Shire of Perth, Kitto J (at 535) distinguished between “the precise manner of use for [the identified] purpose” and “use generally for that purpose…. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities … but by asking what, according to ordinary terminology, is the appropriate designation for the purpose being served by the use of the premises at the material date”. 39    Drawing upon this and other decisions, Kirby P stated the following three propositions in Boyts Case (at 59):

1. Defining the “existing use” depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.
2. Nevertheless, the general approach to be taken is one of construing the “use” broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.
3. In determining that genus , attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.

These liberal principles apply notwithstanding recognition that “neighbourhoods change” ( ibid ).

40    In Royal Agricultural Society of NSW v Sydney CC (1987) 61 LGRA 305 at 310-311, McHugh JA said:

…a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions and processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land ….
The foregoing cases were concerned with the activities of a particular business or industry or with activities of a common kind. But I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose.


See also Woollahra MC v Banool Developments Pty Ltd (1973) 129 CLR 138 at 146 , Hudak v Waverley MC (1990) 70 LGRA 130 at 133, 135 and Strathfield MC v Australian Centre for Languages Pty Ltd (1991) 74 LGRA 117 at 119.

41    The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later. 42    In the particular context of religious practice there is an additional reason for a liberal reading. I respectfully adopt and apply to the Consent what McHugh JA said in Moslem Alawy (1985) 1 NSWLR 525 at 544:

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”: per Mason ACJ and Brennan J in Church of New Faith v Commissioner for Pay-roll Tax (1983) 154 CLR 120 at 130. 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.
Two extreme submissions rejected

43    In its boldest aspect, the appellants’ submission asserted that the declarations made by the Land and Environment Court effectively declared that it was unlawful for the appellants to use the brick church for the purposes of non-Christian worship. This does not do justice to the reasoning or order of the Court. Applying the same “logic”, the decision below might be characterised as enforcing the hypothetical proposition that it is unlawful (at least without consent) to use the land as a school. All that has happened, if Sheahan J is correct, is that the appellants’ use of the land has been found to fall outside the line demarcated by the proper scope of the 1954 consent. 44    I would also reject the Council’s submission that the planning authority in 1954 should be taken to have chosen “church” in contradistinction to “chapel or other place of public worship” within the extended statutory definition. First, there is no evidence of this. Secondly, such an imputed choice ignores the overlapping nature of the definition. Thirdly, the Council is unlikely to have had any concern with the liturgy proposed to be adopted in an unbuilt structure on land the development of which was approved in general terms without addition of any relevant conditions. So much is conceded in the Council’s submission that usage for any form of Christian worship would fall within the scope of the consent. 45    In rejecting the extreme version of the Council’s “choice” submission, I am not suggesting that there is no relevance in the fact that the Consent is not expressed in the wider terms of “place of public worship”. But I do not see this as determinative. In my view it would be an error to read the terms “church”, “chapel” and “other places of worship” as hermetically sealed compartments. One hundred years ago in Britain “church” and “chapel” would have recognised a sharp distinction between buildings for the use of the Established Church and other branches of the Christian church (cf Attorney General, ex rel Bedfordshire County Council v Howard United Reformed Church Trustees [1975] QB 41 at 54). But this would not reflect modern Australian or even British usage even in 1954. It is obvious that the expression used “as a church, chapel or other place of public worship” is a composite expression in which each member takes some colour from its fellows (cf Laemthong International Lines Co Ltd v BPS Shipping Ltd (1997) 190 CLR 181 at 192). The important point is that the expressed common feature is the notion of public worship. 46 It is highly unlikely that the Bankstown planners of 1954 ever dreamed that the building might be used for worship by Muslims. Before the late 1960s, with the revision of Australia’s immigration policies and the outbreak of civil war in Lebanon, there was only a trickle of Muslim immigrants in Australia (see Gary G Bouma, Mosques and Muslim Settlement in Australia, AGPS 1994 chapter 4; Wafia Omar and Kirsty Allen, The Muslims in Australia AGPS 1996 chapter 5). But what follows from this historical fact? Even were it permissible to enquire as to the subjective intent of the Bankstown Council in 1954 (which it is not), one could not proceed on the basis of a choice to exclude non-Christians if that choice was not likely to have been adverted to. Furthermore, this would be to go behind the limited material available, ie the terms of the 1954 Consent itself. The Consent used a word of general and uncertain meaning (“church”). Cf Boyts Case (“warehouse”), Harris (“shop”), Parramatta City Council v RA Motors Pty Ltd (1986) 59 LGRA 121 (“car”). It remains to be construed on that basis.

Church life and the scope of the 1954 Consent

47    That which is to be construed, in the final analysis, is the 1954 Consent. This is not to deny the relevance of construing that document having regard to the scope of the power available to the Council in 1954 (as the appellants particularly contend) and the environmental impacts inherent in the particular building application lodged by the Presbyterian Church of New South Wales (as the respondent particularly contends). 48    The appellants challenge Sheahan J’s interpretation of the 1954 Consent by submitting that his Honour failed to give effect to the broader dictionary definitions some of which encompassed a mosque or temple within “church”. The appellants cite judicial statements recognising that in some contexts “church” (in the building sense) may be used generically to refer to a building for public worship (Thames Borough Council v Congregational Church Trustees [1929] NZLR 525 at 527) without definition as to the liturgy taking place or confining it to Christian liturgy (cf Church of Christ (Non-Denominational) Inc v Minister for Territories and Local Government (1985) 10 FCR 152 at 155-6). 49 The appellants do not suggest that his Honour misunderstood the task before him when he drew a comparison as to the nature and extent of the use of the land during the Presbyterian era and the Islamic era that commenced in June 1995. But what does it really show as to the all-important amenity distinctions? Actual use of a particular Christian church may alter significantly over time. Service times may change, congregations may swell, and liturgies and other events may become noisier or otherwise affect the amenity of the neighbourhood. More parishioners may use motor vehicles to attend. 50 American law relating to the meaning of “church” in a zoning context is instructive (see generally 101A Corpus Juris Secundum Zoning and Land Planning §134; Annot 62 ALR 3d 197). The definition generally reflected in the case law is that of a building set apart for public worship (62 ALR 3d 197 at §4). Non-Christian worship is included (see, eg In re McCusker 62 NYS 201 (1900) (synagogue); Community Synagogue v Bates 154 NYS 2d 15 (synagogue); State of New Mexico v Vogenthaler 548 P 2d 112 (1976)). It is hardly surprising that this attitude is influenced by the constitutional principles prohibiting interference with the free exercise of religious profession and worship. For reasons given above such principles should also inform the task of an Australian court. 51 There is also recognition in the American cases that “the concept of what constitutes a church has changed from a place of worship alone, used once or twice a week, to a church used during the entire week, nights as well as days, for various parochial and community functions” (Unitarian Universalist Church of Central Nassau v Shorten 314 NYS 2d 66, 71 (1970)). The same can be said of modern Australian church life. What is encompassed in the modern idea of “church” is not boundless, but it is broad and protean. It has been ever thus, as any study of the history of Christianity would reveal. Some branches of the Christian Church celebrate the sabbath on Saturday. Practices, liturgies and “church activities” have changed and developed. It is an invidious but necessary judicial task to draw lines, but this is a field where a liberal attitude should prevail, especially one that recognises that things change and develop. 52 The Council’s concession that any form of Christian liturgy is within the scope of the 1954 Consent entails recognition that a very wide range of religious observances (and by implication environmental or amenity impacts) would be embraced. Some of these could be guaranteed to take literally the biblical injunctions to “make a joyful noise to the Lord” (Psalm 100 v1. See also Psalms 66, 150.) For most Christian denominations expansion is a goal. Accordingly, the Council’s conceded permissible use could embrace more intensive and frequent use of the site than might be expected with a declining and possibly aging congregation of mainstream Protestants. 53    What then, in ordinary terminology, is encompassed in a 1954 approval of use as a “church”, when that consent is construed according to the liberal and generic interpretation of that word? The dictionaries do not speak with one voice. Some evidence a broader (non-Christian) meaning. Some are less obviously relevant to Australia in the 1950s. None seek to view the term through the refractive prism of a town planning context. 54    The 1954 Consent was not concerned to ensure that liturgy remained orthodox according to Christian standards. It was concerned to authorise the use of a building inter alia as a “church”, the word being apt to the proposed building but illustrative of the genus of a place of public worship being the relevant purpose in the CCPS. In my view, in the operative planning law context the preferable conclusion that “church” was used in a sense in which the dictionaries indicate was open to use it, namely the sense of a place of public worship. The mosque fits this description. 55    I would uphold the appeal, set aside the declarations and orders made by Sheahan J and in lieu thereof dismiss the application to the Land and Environment Court with costs in this Court and the Court below. 56    STEIN JA: I agree with Mason P. 57    GILES JA: I agree with Mason P.

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