Reported Decision : (2001) 118 LGERA 301 Land and Environment Court of New South Wales CITATION : Misra v Campbelltown City Council [2001] NSWLEC 256 APPLICANT Prem Misra PARTIES : RESPONDENT Campbelltown City Council FILE NUMBER(S) : 10364 of 2001 CORAM: Cowdroy J KEY ISSUES: Development Consent :- Orders LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B, 121ZK CASES CITED: House of Peace Pty Limited v Bankstown City Council (2000) 48 NSWLR 498; The Council of the Municipality of Canterbury v Moslem Alawy Society Limited (1986-1987) 162 CLR 145 DATES OF HEARING: 31/10/01, 4/12/01 DATE OF JUDGMENT: 12/13/2001 APPLICANT Mr J Burrell (Solicitor) SOLICITORS Burrell Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings (Barrister) SOLICITORS Marsdens Solicitors JUDGMENT: IN THE LAND AND MATTER No. 10364 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 13/12/01 Prem Misra Applicant v Campbelltown City Council Respondent JUDGMENT 1. By application class one dated 30 April 2001 the applicant appeals to this Court pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against an order issued by the respondent ("the council") pursuant to s 121B of the EP&A Act requiring the applicant to cease the use of premises known as 203 Eagleview Road, Minto ("the site") as a place of public worship. Facts 2. During 1992 the council granted approval for the development of a Hindu temple at 201 Eagleview Road, Minto. In consequence of public complaint, the prevailing Interim Development Order 24 – City of Campbelltown ("IDO 24") which permitted such development with consent of council was amended by Campbelltown Local Environmental Plan 129 ("LEP 129"), published in the NSW Government Gazette on 21 August 1992. Pursuant to LEP 129 the development of 'institutional uses', 'places of assembly' and 'places of public worship' were deleted from the list of permissible uses in zone 7(c) Scenic Protection Area. As a result such uses became prohibited in the zone. 3. Clause 2(2) of IDO 24 adopts the definition of 'place of assembly' and 'place of public worship' as contained in the Environmental Planning and Assessment Model Provisions 1980 ("the Model Provisions") which provides:- place of assembly means a public hall, theatre, cinema, music hall, concert hall, dance hall, open-air theatre, drive-in theatre, music bowl or any other building of a like character used as such and whether used for the purposes of gain or not, but does not include a place of public worship, an institution or an educational establishment; place of public worship means a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events or religious training; Prior to 12 February 1999 the Model Provisions defined a ' place of public worship ' as ' a church, chapel or other place of public worship or religious instruction or place used for the purpose of religious training '. This amendment is of no consequence in view of the decision of the New South Wales Court of Appeal in House of Peace Pty Limited and Anor v Bankstown City Council (2000) 48 NSWLR 498. 4. By application for development consent 367/95 ("the first application") Gary Murphy Consulting applied for development consent at the site in respect of the following:- Tennis Court as per plan and storage Dam to be used for gardening with overflow to storm drainage system Refer drawing. + Dwelling The addition ' + Dwelling ' has been inserted in handwriting whereas the remaining description is typewritten. 5. Plans submitted with the application detail a very substantial single story building to be constructed entirely below ground level. One wing contains bedrooms; another a library, study, prayer room and meditation room; and another wing a storeroom and amenities block, the latter being separated from the main building. Garages, several storerooms and a wide pedestrian and vehicle access ramp leading to the central courtyard is also shown, together with family rooms, a formal dining room; lounge room and media room; kitchen; and internal courtyard. 6. As a result of a complaint the council wrote to Mr G Murphy by letter dated February 1996 seeking justification of the size of various rooms, their purpose and the purpose of the dividing walls between the library, study and prayer room. In particular the council requested the following:- Clarify that no part of the dwelling is to be used as a religious establishment or for any purpose not directly associated with a dwelling house. 7. By letter dated 8 January 1996 (but which is accepted to be 8 February 1996) G.F. Murphy Consulting responded. The letter states inter alia as follows:- The prayer room is for use by the occupants and occasionally visiting relatives and friends. The letter stated that petitions between the library, study and meditation room were to be constructed of timber stud walling and such rooms were located to one side of the dwelling ' to minimise noise from the dwelling area entering these rooms '. 8. The letter also stated:- It is hereby clarified that no part of the dwelling is to be used as a religious establishment or for any other person not directly associated with a dwelling house and the religious requirements of the occupants. 9. On 25 March 1996 the council granted development consent to the first application subject to conditions. Condition 2 thereof states:- 2. USE OF DWELLING – The dwelling shall be used for residential purposes only. The first order 10. The building was constructed but as a result of complaints council investigated the use and formed the view that it was being used for the purpose of public worship. As a result it issued a Notice of Intention to Serve Order pursuant to s 121B of the EP&A Act giving notice that an order would be served. Such notice contained the following details:- Requirements Cease the unauthorised use of premises as a place of public worship. Reasons for order The use of the property is being carried out without council's development consent and contravenes condition 2 of development consent No. D367/95. 11. The notice was challenged by solicitors retained for the applicant. In a letter dated 18 February 2000 the solicitors wrote, inter alia:- The dwelling itself is not being used other than for residential purposes. Condition 2 of the development consent has not been breached. 12. The applicant, by its consultant, made land use application E60/2000 ("the second application") on 18 July 2000 for the site. The proposed use is described as follows:- Proposed Use Use of the existing building as a community building and educational establishment. 13. By Notice to Applicant of Determination dated 19 December 2000 the council refused the second application for the following reasons:- The proposed development is defined as a ' place of public worship ' under the provisions of Interim Development Order 24 which is a prohibited use in a Scenic Protection 7(c) Zone. The proposed development falls within the definition of a ' religious establishment ' or an ' educational establishment ' which are both prohibited uses in an Environment Protection 7( D 4) zone under the provisions of Draft Local Environmental Plan 1996. Having regard to the number of submissions received, approval of the development application is not in the public interest. 14. On 20 December 2000 the council issued a second intention to serve an order pursuant to s 121B of the EP&A Act. On 10 April 2001 the council issued order which is the subject of these proceedings. 15. On 18 April 2001 solicitors retained by the applicant disputed that the activities being conducted at the site constituted it a place of public worship. In order to 'remove any doubt about conformity with the planning code' the solicitors made an application to the council to re-zone the site to enable it to be used for the purposes of prayer activities, cultural classes and cultural events. 16. At its meeting on 24 July 2001 the council rejected the requested amendment to IDO 24. Findings 17. The evidence establishes that the dwelling is incomplete. Nevertheless, a priest of the Hindu religion is residing in the building described as 'amenities block'. The tennis court has not been constructed but instead a substantial car park has been levelled over the site of the proposed tennis court and flood lighting has been installed to illuminate it. A large water feature and surrounding gardens have been installed adjacent to the driveway. Signs have been erected upon the site indicating the location of the car park and men's toilets. A substantial brick and iron gateway bears the sign 'Mukti-Gupteshwar Mandir'. It is accepted that the word 'Mandir' has several meanings which may loosely be translated as 'sacred place', 'holy place', 'temple' or 'abode of the Lord'. 18. Inside the driveway a sign states 'This way to Mandir' and another sign 'Ram Kuti' which means 'Humble place of God'. To an external wall is affixed eleven polished metal tablets bearing inscriptions. A sign entitled 'Mandir Forthcoming Events' and giving details of the date, time and event is displayed. A framed selection of gold medallions under the banner 'Navgrah Mandal' is affixed to a wall. 19. Photographs taken within the building show that the kitchen has not been completed. A gas bottle stove is used apparently for cooking and some furniture exists in the area described in the plans as meal room. One bedroom contains a bed but no other furniture. The lounge room, comprising a substantial space, is devoid of furniture but there are approximately one hundred stackable chairs placed against one wall. There is no evidence of any other furniture within the building. The bathrooms have also not yet been constructed. 20. There is therefore no evidence that the dwelling is being used for residential purposes and no occupation certificate authorising its use for that purpose has been issued by the council. The 13th Jyotirlinga 21. The applicant and his wife, Rama Misra, acknowledge that they do not yet live at the site. They, together with approximately 120 other persons have formed an association entitled 'Mukti-Gupteshwar Mandir Society Inc' ("the MGM Society"). The MGM society was formed in February 1996 to raise awareness within the Australian Hindu community of the significance of the 13th Jyotirlinga ("the icon"), which is displayed within the building. The icon is the only Jyotirlinga located outside India. 22. The applicant is the sole owner of the site and has stated that he is taking steps to establish a trust so that the property can be held in perpetuity for the preservation of the icon. 23. In the Hindu religion, and according to the applicant, 'Mukti' means release from the cycle of birth and death or escape from reincarnation. 'Gupteshwar' means 'God of the Cave', one of the deities of Lord Shiva. 24. Dr Louise Steding, Heritage and Archaeology Consultant, provided a report for the applicant. Such report states that there are thirteen Jyotirlingas which form part of the Pashupatinath of Nepal which is the main temple of Lord Shiva built in Kathmandu in 1697. Lord Shiva is one of the supreme Hindu Gods who, with Vishnu and Brahma, forms a trinity, or trimurti, in the Hindu religion. All thirteen Jyotirlingas are described as 'self formed icons of egg shape'. In 1999 the icon was given to the Australian people by the late Majesty Maharajadhiraja Birendra Bir Bikram Sháh Dev. 25. The applicant testified that he designed the building at the site to house the icon in accordance with readings of scripture that state that the icon should be located in a cave in a southern island close to Antarctica known as 'Aashtalika' and thought to be Australia. The applicant and his wife were instrumental in arranging for the icon to leave Nepal and to be brought to Australia. Such arrangements were made during a visit to Nepal by the applicant's wife early in 1996. 26. Before the icon was consecrated at the site messages including prayers and hymns were composed specifically for the icon by the Head Priest of Nepal's King Mehendra Bir Bikram Sháh Dev. The applicant also obtained two million mantras from followers of Shiva; waters from 87 rivers around the world and from every major river in Australia; water from five oceans; and eight precious metals. All these items were buried beneath the icon. Letters of good wishes including letters from the Governor General of Australia, the Premier of New South Wales and other dignitaries were also included. The late Crown Prince Dipendra Bir Bikram Sháh Dev visited the prayer room in September 2000 to view the icon. 27. The icon was consecrated between 12 and 14 February 1999 on an auspicious date in the Hindu calendar selected by the Head Priest residing in Nepal. According to the applicant such a date only occurs every 100 years and the applicant believes that the removal of the icon could not take place within 100 years of its consecration. Activities at the site 28. Every day the icon is washed and adorned by the Brahmin priest. The priest chants in Sanskrit before commencing the bathing of the icon. The priest will also move around the larger area of the prayer room towards the end of the ceremony to fan the one thousand and eight icons of Shiva encased along the walls of the prayer room. 29. Rama Misra provided evidence that she spends much of her time at the Mandir conducting religious devotions which includes devotions with friends. Mrs Misra said that neither formal religious gatherings nor group religious worship takes place at the Mandir. 30. Festivals of special significance are celebrated according to dates fixed in the Hindu calendar. On such occasions followers of Lord Shiva may attend at the site for the purpose of the observance of such events. The council tendered evidence to show that for six months between July 2001 and December 2001 ten events were shown in a sign as 'Forthcoming Events at the Mandir'. During the previous year the MGM Society conducted various cultural events at the site. The events included performances of devotional music followed by refreshments. On one occasion a funeral service was held at the site. A wedding has also been held at the site for the son of the applicant and at least three other wedding parties have visited the Mandir for the purpose of receiving the blessing of the Priest. Place of public worship 31. In The Council of the Municipality of Canterbury v Moslem Alawy Society Limited (1986-1987) 162 CLR 145 the High Court of Australia stated in a joint judgment the following principle at 148-149:- It is important to note that the adjective ' public ' in the phrase 'place of public worship ' qualifies the noun 'worship' and not the noun 'place'. The consequence of that is that there is a degree of latent ambiguity in the phrase which can only be resolved by the determination of what constitutes 'public worship' in the context of the phrase as used in the Ordinance. On one approach, 'public worship' means worship carried on in a place that is open to the public generally. On that approach, there is no practical distinction between the phrase 'place of public worship' and the phrase 'public place of worship'. Another approach is to construe 'public worship' as referring to worship that is not private or domestic in the sense of not being within the privacy of 'the closet' or within the confines of close family. On that approach the phrase 'public worship' is used in contradistinction to personal or family devotion which could be expected to be carried on in an ordinary dwelling house. So understood the phrase would encompass worship carried on openly in a place of communal worship of a local congregation whose membership extends beyond a domestic group regardless of whether the particular place be open to the public generally. 32. The applicant submits that the site is not being used as a place of public worship. Rather, they claim that the site is attended only by their friends and devotees of Shiva who visit at an invitation extended by the applicant. 33. The applicant has testified that friends and visitors contact the applicant or his family by telephone to determine whether it is convenient to visit the site. Such friends will usually visit the site on weekends. Upon entry into the Mandir such friends may engage in meditation or prayer which is solely on an individual basis. 34. The applicant said that members of the public may also visit the shrine by appointment. He said that they do not advertise or promote the Mandir but knowledge of its existence is commonly spread by word of mouth. 35. The applicant stressed that the religious devotions and observances that take place at the site are 'individualistic' and not group activities. He said that 'the only group activities are for cultural not religious events'. He said that he and his wife are the 'custodians of a tremendous gift to the Australian people' and that he regarded it as their duty 'to share that gift with all Australians'. 36. However, despite these assertions and despite the assurances provided to the council that the site would be used for a residence the council tendered a letter written by the applicant that was circulated in the Indian community on the letterhead of the MGM Society in or about April 1996. The letter is written in Hindi but an agreed translation relevantly states as follows:- Pleased to inform you that after numerous obstacles, the abode of the Lord is going to commence construction at a new holly [sic] place. We are specially blessed that this House will house thirteenth Jyotirlinga (a form of Lord Shiva, the Deity)... The thirteenth Jyotirlinga will be enshrined in a modern underground cave like temple which will be known as Muktigupteshwar , and the place will become a famous pilgrimage. 37. Since the applicant has acknowledged that the building was specifically designed to house the icon, it is apparent that the true purpose of the building was not revealed to Council. The unchallenged evidence before the Court establishes that the religious observances conducted at the site extends beyond the applicant and his family to those members of their society who are dedicated to Shiva. Adopting the test of the High Court of Australia in Moslem Alawy Society many of the current activities would constitute the site as a 'place of public worship' contrary to IDO 24 as amended by LEP 129. The Court concludes that at all material times the building was intended to be used for the purpose of housing the icon and as a place of religious pilgrimage. The current use of the land does not establish characterisation as a residence. Conclusion 38. The order seeks to restrain the applicant from using the site as a place of public worship. The Court notes that only certain uses of the site constitute the use of the site as a place of public worship. Such use is prohibited in the zone and is contrary to that for which development consent was obtained. Accordingly, the council is entitled to restrain such use of the site. 39. The applicant is entitled to use the site as a residence and incidentally for the religious purposes of the residents. Any use that is offensive to the objectives of the Scenic Protection Zone are prohibited. Advertising of the site as a place of assembly or public devotion and the holding of events which cannot be properly characterised as private gatherings or assembly are prohibited. The requirements of the zone would not however require the applicant to remove the icon. Nor would it require the applicant to remove signage. The name "Mandir" can have a meaning which would not offend the zoning requirements. The existing signs do not necessarily destroy the character of the site as a residence. Further, council has acknowledged that the residence of a priest is not inconsistent with a residential use of the site. 40. The order is accordingly valid. However, in so concluding it should be noted that private events conducted by the residents of the dwelling would not be prohibited unless they could be characterised as constituting 'public worship' as defined by the High Court of Australia in Moslem Alway Society. Orders 41. The Court orders:- 1. That the appeal be dismissed. 2. Costs be reserved. 3. The exhibits be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.