What follows is an extract of a conference presentation given with Alexander Laurence, my co-presenter, at the Law and Society Association Global Meeting at Lisbon, 14 July 2022 . The presentation centred on the case of Hoskin v Greater Bendigo City Council [2015] VSCA 350.
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One of our starting positions is that the law, including planning law, is unfamiliar and uncomfortable to the less advantaged in our communities; that the participatory justice planning law claims to offer is most readily exercised by those already privileged in society.[1]
Amenity is a concept that has historically been deployed as a means of preserving the status quo of a place by those with social and economic privilege and legal access.
In Victoria, amenity is explained as ‘all the features, benefits and advantages inherent in the environment’.[2] Amenity is temporally fixed, and grounded in place, so is a concept used by and for existing residents, typically against new developments and newcomers.
In cases concerning places of worship and religious school in Australia, amenity has been the planning law concept most capable of encompassing the range of opposing views.
This is because amenity can let in opinions of a prevailing public that are, ordinarily, inappropriate matters for planning decision-makers to consider.[3] This has included race and religion,[4] particularly when aspects about them are framed as being out of character to a current community.
There are also examples in the law of efforts to hide prejudice within complaints about traffic, car parking or more quantitatively calculable impacts.[5] When a permit was granted to construct a Romanian Orthodox Church in Narre Warren in outer suburban Melbourne, it was unsuccessfully argued that an unreasonable impact on the community’s amenity would be created by ‘ringing bells, singing hymns, burning candles’.[6] It was noted in that case by the Tribunal member that what appeared to have activated the objectors was fear, which they translated into less repugnant amenity positions.[7]
Amenity arguments were available to and were made by Hoskin and the mosque opponents, yet they were unsuccessful in large part because of the lower quality amenity associated with an industrial zone.[8] Those amenity objections were primarily around traffic and the introduction of hundreds of humans into an industrial area where they typically had not been.[9]
It was not in the planning ground of amenity where repugnant views were found in this case.
Rather they were presented, explicitly, with no attempt at nuance or disguise within the newer planning concept of social effects. Both the Tribunal and the Court of Appeal noted a different statutory context applied to the Bendigo mosque than applied in the series of NSW cases that addressed amenity impacts associated with religious land uses.[10]
Social effects became a mandatory consideration for decisions about planning permits in Victoria in 2013.[11] A permit decision maker ‘must consider any significant social effects and economic effects which … the use or development may have’.[12]
The first case to consider social effects was Rutherford v Hume City Council.[13] This was the case concerning the Hume mosque mentioned by Alex.[14]
Deputy President Dwyer offered several comments on the meaning of social effects and the application of planning law to it in the Hume case. The effects must have a causal connection to the development, ‘not [simply] addressing all issues of social or community concern’.[15] There needs to be an affect to an identifiable part of the community, rather than individuals or small groups. It should be based on a proper evidentiary basis, rather than on philosophical or moral or religious values.[16]
Across the Bendigo mosque court cases, Hoskin argued that the social effects to be caused by the mosque were manifold and widespread affecting all Bendigonians.
They included: a likely rise in abuse, harassment and intimidation, a rise in disrespect for women, the creation of a Muslim enclave around the mosque, the implantation of Sharia law and a dilution of a so-called Australian and western culture, losses to wellbeing, a community’s sense of safety, and social cohesion associated with Islamic worship.[17]
Lawyers argued that social disharmony would come to Bendigo if the mosque was approved, referencing religious tensions in cities such as Bradford and Lakemba.
These arguments were not substantiated with any documents or material, and there was no identified specific link with the permit application for the mosque.
It was the absence of evidence of these effects that led to Hoskin’s unsuccess.
The Court of Appeal made the point that ‘the facilitation of the practice of religious worship … cannot itself constitute a significant adverse social effect of a proposed use or development’.[18]
Moreover, the operation of Victoria’s Charter with its right to a freedom to practice religion[19] meant that the starting position for deliberations about the impacts of places of worship is that the effects are positive.
Yet on the other side of the ledger ‘social characteristics’ associated with a land use for religious worship could render that land use inappropriate.[20]
The arguments made by Hoskin were valid planning arguments. The concept of social effects facilitated an elevating of what Hoskin’s own witness described as ‘fears and concerns’ on a ‘controversial issue’ of the compatibility of all religion with an Australian way of life.[21]
We are not sure what we think about this. We know that Hoskin and the mosque opponents were using the law as a platform. So through planning law, and its facilitation of the expression of hatred, Hoskin was able to not simply ventilate but also transmit and elevate religious hatred.
The alternative is to cloak those views, to hide hatred.
[1] Hoskin had worked at the City of Bendigo; she had access to lawyers; she was funded through conventional means. She had a platform within and promoted by hard right segments of the Australian polity
[2] See Victorian Government Solicitor, ‘What is Amenity?’ (Web Page, 2008) <http://vgso.vic.gov.au/content/amenity>, citing in particular Lobb v City of Waverley (1967) 14 LGRA 193.
[3] Leslie Stein, Principles of Planning Law (Oxford University Press, Melbourne: 2008) 176.
[4] New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 253.
[5] Richard Gale and Simon Naylor, ‘Religion, planning and the city: The spatial politics of ethnic minority expressions in British cities and towns’ (2002) 2(3) Ethnicities 387. For an Australian example, see Nasser Hussein v Georges River Council [2016] NSWLEC 1548.
[6] Blue v Casey CC [2011] VCAT 1968 [21].
[7] Ibid [25].
[8] The Tribunal held that amenity impacts were properly assessed by the responsible authority. The President concluded that amenity expectations in this location must be tempered by the zoning and physical characteristics. Although there are dwellings proximate to the subject land, their amenity expectations must be assessed in terms of their relationship with the main road and proximity to, or location within, industrially zoned land.
[9] A witness identified the main impacts of the mosque on residential amenity: traffic movement on a residential street, noise, headlights and the height and lighting of the minaret.
[10] Hoskin v Greater Bendigo City Council [2015] VSCA 350 (‘Hoskin CoA‘) [141].
[11] Planning and Environment Amendment (General) Act 2013 (Vic) s 76.
[12] Planning and Environment Act 1987 (Vic) s 60(1)(f). Note that, in New South Wales, consideration of ‘social and economic impacts in the locality’ was already mandated by the Environment Planning and Assessment Act 1979 (NSW) s 4.15(1)(b).
[13] [2014] VCAT 786 (‘Rutherford’).
[14] Following Rutherford, a second planning law amendment was introduced: a planning decision maker, must, where appropriate, have regard to the number of objectors in considering whether the use or development may have a significant social effect.
[15] Rutherford [51].
[16] This reflected early reasoning in Johnson v Greater Shepparton CC [2005] VCAT 1432 on adult sex bookshops: it is appropriate to simply apply philosophical or moral or religious values. Rather it is necessary to make such decisions on the basis of a true empirical understanding of the facts of the situation
[17] Hoskin CoA [56]-[59].
[18] Ibid [28].
[19] Charter of Human Rights and Responsibilities Act 2006 (Vic), s 14
[20] Hoskin CoA [28].
[21] Ibid [59].
Brad Jessup 