Case Note: Characterising a ‘Place of Worship’ under a Planning Scheme

Characterising a ‘Place of Worship’ under a Planning Scheme

Case Note

RSSB Australia Pty Ltd v Ross [2017] VSC 314, Emerton J

EXECUTIVE SUMMARY

• This case involved the characterisation of a proposal as a ‘place of worship’ through applying principles of land use characterisation also applicable to other uses such as funeral parlours, schools, etc.
• When determining whether a proposal falls under a certain land use term for planning purposes, the planning decision-maker must look at the nature of the activities to be carried out and their purpose.
• Principles of characterisation are particularly important for zones with highly restrictive use controls, such as the Green Wedge Zone.
• The case also discusses the definition of a ‘religion’ for legal purposes.

BACKGROUND RSSB Pty Ltd is a corporate trustee for Radha Soami Satsang Beas Australia (RSSB), an organisation affiliated with a global organisation called Radha Soami Satsang Beas. The organisation is headquartered in India and ‘promotes the worship of God through spiritual practices’[1]. RSSB applied for a planning permit to construct what it contended to be a place of worship, along with a caretaker’s dwelling and guest dwelling, in a Green Wedge Zone (GWZ). Frankston City Council issued a planning permit on the basis that the proposal was a place of worship. A non-lawyer sole member at VCAT found that the proposal was a place of assembly, not a place of worship, because RSSB was not a religion. Although the proposal was otherwise acceptable, the restrictive GWZ controls prohibit use of places of assembly for more than ten days per year. It set aside Council’s decision and refused the permit application. RSSB appealed to the Supreme Court of Victoria. ISSUES RSSB argued that VCAT’s decision was wrong on two grounds:

1. VCAT wrongly approached the question of whether a proposal is for a ‘place of worship’ by incorrectly treating the question of whether RSSB is a religious organisation as determinative; and
2. In the alternative, RSSB is a religion.

CHARACTERISING PLACES OF WORSHIP Emerton J held that VCAT misdirected itself in approaching the question of whether the proposal was a place of worship. Her Honour found that VCAT restricted itself to determining whether RSSB was a religion as the sole test of whether the proposal was a place of worship. As RSSB was not a religion, VCAT concluded that the proposal was not a place of worship. However, Emerton J held, it was necessary for VCAT to consider ‘what activities were to be undertaken on the land’ and the ‘purpose of the proposed use’ in a ‘common sense and practical way’[2]. By focusing on whether RSSB was a religion, VCAT failed to carry out that essential task. RSSB gave evidence that the land would be used for activities including farming and meditation. The agricultural activities were aimed at developing an ‘ethos of giving for the benefit of others’[3], and the meditation was to ‘connect to the soul of the Lord’[4]. Followers of RSSB would also gather regularly to sing hymns, listen to discourses on the teachings of saints, hold classes on morality and initiate new followers into the meditative and voluntary activities[5]. All these activities were aimed at the promotion of the worship of God and the belief in the divinity of God[6]. Further, in determining whether a development is a ‘place of worship’, a liberal approach to interpretation must be adopted, in line with Australian community standards of religious toleration and equality. DEFINING ‘RELIGION’ Emerton J also found that VCAT’s approach to the meaning of ‘religion’ was erroneous. In particular, VCAT emphasised formal ceremonies and services, the existence of a single set of beliefs and sacred texts, and a concern with persuading members that it was the ‘true faith’. Because RSSB did not have its own set of beliefs (but instead left followers to form their own beliefs relying on the sacred texts of multiple different religions), and it had limited formal ceremonies, VCAT found that it was not a religion. Her Honour held that this approach was rejected in an earlier High Court case as being ‘unacceptable’ and as involving ‘intolerable religious discrimination’[7]. There were differing views on what is required for a religion, but none of them required a unique set of beliefs or sacred texts or a concern with persuading members that its ideas represent the true faith. Freeman Zhong 8 September 2017 Copyright © Kellehers Australia 2017 Liability limited by a scheme approved under Professional Standards Legislation This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances. [1] RSSB Australia Pty Ltd v Ross [2017] VSC 314, [1]. [2] Ibid [32]. [3] Ibid [40]. [4] Ibid [41]. [5] Ibid [42]. [6] Ibid [43]. [7] Ibid [23].