JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2017
DATE OF JUDGMENT:	8 June 2017
CASE MAY BE CITED AS:	RSSB Australia Pty Ltd v Ross
MEDIUM NEUTRAL CITATION:	[2017] VSC 314

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PLANNING & ENVIRONMENT — Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal under Victorian Civil and Administrative Tribunal Act 1998 s 148 — Permit application — Whether the proposed development was a ‘place of worship’ under the Frankston Planning Scheme — Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Stuart Morris QC with Mr Roshan Chaile of Counsel	Thomson Geer
For the Respondents	No appearance

HER HONOUR:

Introduction

The applicant is beneficially owned by and acts as corporate trustee for Radha Soami Satsang Beas Australia (‘RSSB’). RSSB is affiliated with the global organisation, Radha Soami Satsang Beas, which is headquartered in India and promotes the worship of God through spiritual practices.

The applicant is the registered proprietor of land at 2 Boundary Road, Carrum Downs and an adjacent block at 724 Frankston-Dandenong Road, Carrum Downs, on which it proposes to build what it contends is a place of worship, along with a caretaker’s dwelling and a guest dwelling. The land is situated in the Green Wedge Zone pursuant to the Frankston Planning Scheme.

On 18 July 2016, Frankston City Council issued a Notice of Decision to grant a permit to construct a place of worship on the land. However, on 23 February 2017, on the application of the first respondent, the Victorian Civil and Administrative Tribunal set aside the Council’s decision to grant a permit and ordered that no permit be granted.

The basis for the Tribunal’s decision was that RSSB is not a religion and, therefore, its proposed use of the land was for a ‘place of assembly’ and not a ‘place of worship’.[1] As the proposed use was for multiple meetings per week, the Tribunal held that it could not grant a permit for the proposed use.
[1]Ross v Frankston CC [2017] VCAT 274, [30] (‘Tribunal’s Reasons’).

Under the Frankston Planning Scheme, a ‘place of worship’ is defined to mean ‘land used for religious activities, such as a church, chapel, mosque, synagogue, and temple’. A ‘place of assembly’ is defined to mean ‘land where people congregate for religious or cultural activities, entertainment or meetings’. The Planning Scheme prohibits the use of a place of assembly for more than ten days per calendar year in the Green Wedge Zone.

The Tribunal otherwise found that the proposed development and use was consistent with the objectives for land within the Green Wedge Zone,[2] involved appropriate land use within Schedule 2 of the Environment Significance Overlay,[3] did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RSSB Australia Pty Ltd v Ross

Details

AGLC: RSSB Australia Pty Ltd v Ross [2017] VSC 314
Case: [2017] VSC 314
Decision Date: 8 June 2017

CaseChat Overview and Summary

In the case of RSSB Australia Pty Ltd v Ross, the dispute involved an application for leave to appeal and an appeal against a decision of the Victorian Civil and Administrative Tribunal. The Tribunal had ruled on a permit application concerning the proposed development of a place of worship by RSSB Australia Pty Ltd, which was contested by Ross. The crux of the matter was whether the proposed development qualified as a ‘place of worship’ under the Frankston Planning Scheme.

The primary legal issues that the court had to address were the interpretation of the term ‘place of worship’ within the context of the planning scheme and the extent to which the Tribunal's decision aligned with statutory requirements. Specifically, the court had to determine if the Tribunal's finding that the proposed development did not constitute a place of worship was correct. The court examined the relevant legislative provisions, case law, and the factual findings made by the Tribunal.

The court granted leave to appeal and allowed the appeal. It held that the Tribunal had erred in its interpretation of the term ‘place of worship’ and that the proposed development did indeed qualify as such. The court found that the Tribunal had not correctly applied the statutory criteria in making its decision, leading to a conclusion that was inconsistent with the legislative intent. As a result, the Tribunal's decision was overturned, and the permit application was to be reconsidered in light of the correct interpretation of the planning scheme. The court's decision underscored the importance of correctly interpreting planning legislation to ensure that permit applications are assessed fairly and in accordance with the law.

Orders