Land and Environment Court of New South Wales CITATION : BANKSTOWN CITY COUNCIL v. HOUSE OF PEACE PTY LIMITED [1998] NSWLEC 248 (9 October 1998) [1998] NSWLEC 22 PARTIES : BANKSTOWN CITY COUNCIL v. HOUSE OF PEACE PTY LIMITED [1998] NSWLEC 248 (9 October 1998) FILE NUMBER(S) : 40047 of 1998 CORAM: Sheahan J KEY ISSUES: :- Environmental Planning & Assessment Act 1979 LEGISLATION CITED: County of Cumberland Planning Scheme Ordinance Bankstown Planning Scheme Ordinance Scurr v Brisbane City Council & Anor (No.5) (1973) 28 LGRA 50; Brutus v Cozens [1973] AC 854 ; Perpetual Trustee Company Limited v The Federal Commissioner of Taxation (1931) 45 CLR 224 at 233; Tectran Corporation Pty Limited v Legal Aid Commission of New South Wales and Rajski (1986) 7 NSWLR 340 ; Falconer v Pedersen [1974] VR 185; Francheschini v Melbourne & Metropolitan Board of Works & Ors ("Francheschini") (1980) 57 LGRA 284; CASES CITED: Cole v Police Constable 443A [1937] 1KB 316 ; 36. Canterbury Municipal Council v Moslem Alawy Society Limited ; Henning v Church of Jesus Christ of Latter-day Saints [1964] AC 420 ; Joyce v Ashfield Municipal Council ("Joyce") (1975) 34 LGRA 253; Shire of Perth v O'Keefe (1964) 110 CLR 529; 75. In Harris & Anor v Hawkesbury Shire Council (1989) 68 LGRA 183 ; Cagliostro v Penrith City Council (1997) 97 LGERA 356; Brutus v Cozens DATES OF HEARING: 25 August 1998 DATE OF JUDGMENT: 10/09/1998 Mr Noel Hemmings QC LEGAL REPRESENTATIVES: Mr W O'Rourke, Solicitor JUDGMENT: Introduction 1. In these Class 4 proceedings the Council seeks three declarations, but no injunctions, against the use of the land and buildings at 11-13 Helen Street Sefton (lots 1 & 2 in deposited plan 13939) ("the subject land") for the purposes of an Islamic or Muslim mosque. 2. The first respondent company owns, and the second respondent organisation occupies, the subject land, which falls wholly within zone 2(a1) Residential "A1" under the Bankstown Planning Scheme Ordinance as amended ("BPSO"), within which zone the erection or use of a building for the purpose of a "church chapel or other place of public worship or religious instruction" is permissible with development consent. 3. The land itself has an area of 1,115m2 , and the church building erected upon it occupies 100m2 and faces east towards Helen Street at its corner with Proctor Parade. 4. Since June 1995 the subject land has been used by the second respondent as a mosque. The Development Consents 5. The respondents rely upon a development consent given by the Council on 23 February 1954 to the Presbyterian Church of New South Wales ("the Presbyterians") for "erection of brick church and office" on the subject land ("the 1954 consent"). 6. After the 1954 consent was granted the Presbyterians constructed, or caused to be constructed, on the subject land a brick building for church and office purposes, in accordance with the consent, and then used the subject land for the purposes of a Presbyterian Church until the subject land was purchased by the first respondent in about June 1995. 7. The only other consent ever granted in respect of the subject land was that granted by Council to the second respondent on 3 September 1996 , for a period of 12 months only, to permit "use of existing church as a place of public worship (mosque)". That 1996 consent has now lapsed and the use of the land for the purpose of a mosque can no longer be authorised by it. 8. The Council contends that the use of the subject land as a mosque is not authorised by the 1954 consent, and therefore contravenes the Environmental Planning & Assessment Act 1979 ("EPAA"). Council seeks the following declarations: · that the respondents are using the subject land "for an Islamic Mosque without the consent" of the Council under the EPAA. · that the respondents are using the subject land "for the purpose of an Islamic Mosque in contravention of the" EPAA. · that the respondents' use of the land "for the purpose of an Islamic Mosque is not authorised by the consent granted …on 23 February 1954". 9. To successfully resist the making of the declarations, the respondents rely upon EPAA s 109B, which provides in general terms that a consent validly granted before or after the commencement of the Act cannot be overturned by a subsequent environmental planning instrument. They must satisfy the Court that the construction of the term "church" in the 1954 consent is wide enough to embrace the use "mosque". The respondents say that "church" is not a technical term, but an ordinary word in the English language which should be given by the Court its ordinary meaning , which they say is wide enough to include "mosque". 10. The Council's case is that when it granted the 1954 consent, it could, but did not, grant a consent for use of the subject land as a "place of public worship", which would authorise, it says, a wider use than that of "church". Council submits that there is no question that a "mosque" is a "place of public worship", but asserts that it is neither a "church" nor a "chapel", being the two types of specific "places of public worship" mentioned in the BPSO definition. 11. The Council contends that in the ordinary use of the English language, the ordinary citizen, Muslim or otherwise, would not understand a "church" to be a "mosque", or vice versa, and that a public notice of a development application for a "mosque", which described it as a "church", would be misleading, and therefore void, on the authority of Scurr v Brisbane City Council & Anor (No.5) (1973) 28 LGRA 50 (where the issue was whether the word "shop" was adequate "particulars of the application" when the application was for a "Target Discount Shopping Centre"). The construction task 12. The meaning of an ordinary word in the English language is not a question of law, but the proper construction of the statute or instrument is. If the context shows that a word is used in an unusual sense, the Court will determine, and prescribe in other words, what that unusual sense is. It is for the Tribunal which decides the case to consider, not as law but as fact, whether in all the circumstances the words of the statute do or do not as a matter of ordinary usage cover or apply to the facts which have been proved. See Brutus v Cozens [1973] AC 854 in which the Court was looking for a definition of "insult". Lord Reid said (at 861): "When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for whose meaning one is searching. No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different. Or the court could frame a definition. But then again the tribunal would be left with words to consider. No doubt a statute may contain a definition - which incidentally often creates more problems than it solves - but the purpose of a definition is to limit or modify the ordinary meaning of a word and the court is not entitled to do that". Lord Reid concluded in respect of "insult" that "there can be no definition. But an ordinary sensible man knows an insult when he sees or hears it". 13. Dixon J said in Perpetual Trustee Company Limited v The Federal Commissioner of Taxation (1931) 45 CLR 224 at 233: "… one must often be guided to a great degree by one's own experience in the use of terms. In the present case little help is provided by dictionaries, statutory usage, or judicial decision. For my part the application of the expression 'benevolent institution' to such organisations as Royal Naval House seems odd and inappropriate". 14. In Tectran Corporation Pty Limited v Legal Aid Commission of New South Wales and Rajski (1986) 7 NSWLR 340 Kirby P said (at 344): "… there is no single available construction to the words used by Parliament. The search of the Court is for the preferable construction derived from the language used, its context, the apparent policy which the language effects and rules of construction which the courts have developed for the performance of such a task". 15. The Court in this case was referred to definitions in the relevant planning instruments and in various dictionaries . 16. The County of Cumberland Planning Scheme Ordinance ("CCPSO") which applied from 27 June 1951, and therefore at the time of the 1954 consent, defined "place of public worship" as: "a building used or designed for use as a church, chapel, or other place of public worship, and a building designed for use for the purpose of religious training". 17. The BPSO came into effect on 21 September 1979 and includes the following relevant definitions: " '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 church, chapel or other place of public worship or religious instruction or place used for the purpose of religious training;" 18. A large number of dictionary definitions were presented to the Court. However, dictionary definitions are not necessarily determinative of the ordinary meaning of words, because they often refer also to past and obsolete meanings, and a word must be construed in its context. 19. In Falconer v Pedersen [1974] VR 185, the word "traffic" had to be construed in the context of a drug of addiction. Anderson J said (at 187): "I do not think one can select any one of the several meanings given in the various dictionaries … and leave it at that. One must interpret the phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary definitions". 20. In Francheschini v Melbourne & Metropolitan Board of Works & Ors (" Francheschini ") (1980) 57 LGRA 284, Padgell J was trying to define the term "institutional home", and said (at 293): "a dictionary provides no sure guide to the solution of problems caused by the use in a statute of an ordinary English word". 21. Notwithstanding the limitations of relying on dictionary definitions, as outlined in the above cases, it is appropriate to now consider, for general guidance, the various dictionary definitions of "church". How do the various dictionaries define "church"? 22. The Concise Oxford Dictionary ("COD") gives the primary definition of "church" as "Building for public Christian worship, especially according to established religion of country". The subsidiary definitions all emphasise the Christian element. 23. The New Shorter Oxford Dictionary ("NSO") defines "church" as "A building for public Christian worship especially of the denomination recognised by the State". It goes on to mention as an obsolete use "a temple; a mosque". The subsidiary definitions also emphasise its Christian character. Meaning No.7 is "(In biblical translations) the congregation of Israelites; the faithful Israelites of the Old Testament, regarded as analogous to the Christian Church". No.8: "A non-Christian society or movement regarded as a religion or as having the social, ethical, or spiritual qualities of a religion". 24. The Oxford English Dictionary ("OED") adopts a meaning "which occurs, from the 3rd century at least, used substantively … as a name of the Christian house of Worship". The dictionary records that "the name of assembly passed to that of the building set apart for it; the sense of 'the congregation of the faithful' sought visible embodiment in outward organisation, which necessarily followed the lines of provincial, national, and linguistic distinctions. Thus arose the notion of provincial or national Churches, as parts or branches of the Church Universal or Catholic; and, with widening differences, doctrinal or administrative, there came the revolt of some of these from the increasingly centralised organisation of the Catholic Church, and the formation of rival churches, each claiming to be the church and rejecting the claim of the others". 25. The OED goes on to list the primary definition as "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), and records that in the United States the church is "in general use, applied to all places of worship. Episcopalians however sometimes claim it exclusively for their own; and other bodies in some cases use special names for their own buildings. In the British colonies generally, the usage of England and Scotland is combined, with more or less extension as in the US". It goes on to note that a former use of the term applied it to public places of worship of any religion such as "heathen temples, Mohammedan mosques" and "also to the Jewish temple". Such usage is described as obsolete. 26. The OED's second major definition is as a Christian community and its ecclesiastical organisation. The subsidiary meanings all refer to the Christian community. The third principal meaning is "a congregation of Christians locally organised into a society for religious worship and spiritual purposes, under the direction of one set of spiritual office-bearers". 27. The OED has a special section on "senses not distinctively Christian" but even these relate to the eventual formulation of Christian churches or some more modern religious societies and organisations including e.g. Mormons. I gained no assistance from the verb "church", but the OED goes on to define "church - building" as "the construction of churches or places of worship" or "the material edifice of the church" or "a building for meetings, etc. adjoining a church (US)". 28. The Macquarie Dictionary defines church as: "1. an edifice for public Christian worship; 2. public worship of God in a church; church service; 3. the whole body of Christian believers; 4. any division of this body professing the same creed …; a Christian denomination; 5. that part of the whole Christian body, or of a particular denomination, belonging to the same city, country, nation, etc.; 6. a body of Christians worshipping in a particular building or constituting one congregation. 7. the ecclesiastical organisation or power as distinguished from the state; 8. the clerical profession; 9. a place of public worship of a non-Christian religion; 10. any non-Christian religious society, organisation, or congregation: the Jewish Church". 29. The Universal English Dictionary ("UED") defines church as "A building specially built, and set apart for the conduct of public religious worship; now used only of building devoted to Christian worship". The second definition is "a Formal organisation for the maintenance and dissemination of religious truth, having a definite form of government and various orders of officers, whose main functions are the preservation and teaching of sound doctrine in matters of faith and morals, the guardianship of traditions and mysteries, and the due performance of prescribed rites and ceremonies. The word is chiefly applied to the Church of Christ: the Western, Eastern, Church etc; but is also extended to the religious organisation of the Hebrews: the Jewish Church; … organisation of other Christian bodies … The body of persons who are members of any given church; … more generally the whole body of Christians throughout the world". 30. Mr O'Rourke relied upon the Shorter Oxford English Dictionary on Historical Principles , ("OHP")first published in 1933. The 1950 reprint, third edition, defines church as "A building for public Christian worship" or "applied to public places of worship of any religion, as Mohammedan mosques, etc." The second definition is "the Christian community collectively" and the third "a congregation of Christians locally organised". 31. While there is no doubt some scope to use the word "church" to apply to mosques, synagogues, etc., the overwhelming indication from the dictionaries cited is that the ordinary meaning of the term "church" would restrict it to Christian establishments. 32. Mr Hemmings submits that the only dictionaries that include in "church" a meaning including "temple" or "mosque" show that such use of the term is obsolete, having been recorded only between 1630 and 1669. The UED specifically says "now used only of building devoted to Christian Worship". The Macquarie records a meaning as a place of public worship of a non-Christian religion, but does not comment on whether or not such a meaning is old English and now obsolete. The Cole case - "church" in the context of "place of pubic worship"? 33. In Cole v Police Constable 443A [1937] 1KB 316 (" Cole ") the plaintiff was a professional guide who was excluded from Westminster Abbey after the expiry of his special permit. On a subsequent day he was in the Abbey during a service, wearing his ordinary guide's badge, and a police constable ejected him. He sued for unlawful assault but could produce no evidence of permission to be in the Abbey, and it was held in the lower Court that the Dean had authority to make the order excluding him and that the constable was justified in ejecting him. 34. On appeal he contended that the Abbey was "a public church … open for public service", meaning that it was generally a public building to which any member of the public had access at reasonable times so long as he behaved himself. The Judges discussed the rights of non-parishioners as members of the general public to attend particular churches or "demand admission". Goddard J said (at 333): "I, at any rate, can find no clear authority, and I am by no means satisfied, that anybody has a legal and enforceable right to attend at any church of which he is not a parishioner". 35. Goddard J went on (at 336): "while it is not to be supposed that the Dean of Westminster would ever desire to exclude any person from the Abbey except for some good and sufficient reason, he has, in my opinion …., the right to exclude the public or any member of the public, except perhaps those living in the precincts, without being called upon to justify his action". The Canterbury case - "mosque" in the context of "place of public worship"? 36. Canterbury Municipal Council v Moslem Alawy Society Limited is an important and relevant case in these proceedings. At first instance before Cripps J the case is reported at (1983) 51 LGRA 79; in the Court of Appeal at (1985) 55 LGRA 318; and in the High Court at (1987) 61 LGRA 148. 37. The Canterbury Planning Scheme Ordinance defined places of public worship very much as they are defined in this case, and prescribed that, within the relevant residential zone, buildings may be used as "places of public worship" with consent. 38. The Society applied for consent to use an ordinary suburban cottage as a meeting place for members, as an office, and for religious prayer in the Moslem Alawy Sect of Islam, which began in Syria and North Lebanon where it had extensive membership. Sect members pray together and gather regularly for quiet readings of the Koran with Elders, and use their mosque also for the celebration of three religious feasts. 39. The Society had 65 members and the sect had about 300 members in NSW. Only members of the Sect would be entitled to use the building, and only males were members of the company, which was required to have committee meetings at least every 3 months at the premises. 40. As religious practice is at the centre of this case, the judgments in Canterbury must be examined in some detail. 41. At first instance, Cripps J defined the question before him as whether "a place of public worship in planning law is a place of worship open to the public or a place where members of the public go to worship publicly". 42. Cripps J reviewed the authorities which dealt with rating exemptions. In 1867 "churches, chapels and 'other buildings used exclusively for public worship' were exempted from municipal rates". The requirement was exclusive use. The Local Government Act 1919 exempted land which belongs to a religious body and which is occupied and used in connection with "any church or other building used or occupied for public worship". 43. Cripps J came to the view that the same considerations did not apply to planning law which was concerned with the use of land, not with the identity of the user. Cripps J said (at vol 51 p82) "It is difficult to see the planning sense that permitted, with Council's consent, a building to be used for a place of public worship which must be open to all members of the public but to deny it to a sect allowing admission to a part only of the general public. In my opinion the proposed use of the subject building is a use for a 'place of public worship' within the meaning of the relevant environmental instrument". 44. Cripps J held that town planning considerations relevant to the meaning of the term "place of public worship" were different from the charitable considerations relevant to the meaning of similar expressions in rate exemption provisions, and that the proposed use of the building was for the purpose of a place of public worship within the meaning of the Scheme. 45. The rating cases view public religious worship as involving the coming together for corporate worship of a congregation, meeting or assembly of people, but the place must be open to all properly disposed persons who wish to be present. The rating exemption flows from a concept of benefit arising from activities for the good of the general public. Lord Pearce in Henning v Church of Jesus Christ of Latter-day Saints [1964] AC 420 (" Henning ") at 441 said: "All religious services that open their doors to the public may, in an age of religious tolerance, claim to perform some spiritual service to the general public …. Nevertheless, in considering ambiguous works in a statute granting exemption from rating one cannot wholly disregard what must have weighed with the legislators, namely considerations of fairness and public benefit". 46. The Court of Appeal, by majority, upheld Cripps J's decision. 47. In his dissenting judgment, Mahoney JA said (at vol 55 p 322-3): "The meaning of a phrase of this kind, though interpreted in other contexts, must be determined in the particular context in which the court is called upon to consider it. The fact that the phrase, or a similar phrase, was used in rating and other context in Local Government legislation in this State may have influenced the draftsman to adopt it in the present ordinance. However, as the learned judge has suggested, the court is concerned to determine what meaning is to be given to it in the context of a planning ordinance. …. I do not think that His Honour failed to appreciate that 'public' was retained in the phrase. His Honour, as I understand his reasoning, saw 'public' as being satisfied by 'part only of the general public'. He saw a place used for worship by the present Sect as being used by 'a part … of the general public'. And he therefore concluded that the use of the premises fell within the phrase. …. In my opinion, a place is not a place of public worship if entry to it is open only to a section of the public; … in any event, those to whom the present premises are open, viz, the members of Alawy sect, cannot be properly described as the public or a section of the public. …. Worship may be described as public for one of two reasons: because it is carried on in public, or because it is carried on by the public". 48. Separate majority judgments in the Court of Appeal were given by McHugh and Priestley JJA. 49. McHugh JA felt that the question was whether, within the meaning of the Ordinance, a building used for prayer and the reading of the Koran by members of a religious sect and to which the general public had no access is "a place of public worship". 50. McHugh JA observed that the house consisted of an unused bedroom and office and a hall, and he presumed that the hall furnished with library shelving and about 100 chairs, was used for prayer. Each day about 12 people gathered and on 3 special feasts per year, about 40 members attended. 51. Only members of the sect were allowed to attend to pray and celebrate the feast. They need no be members of the company. The evidence did not indicate whether people who were not members of the sect were able to observe members praying and celebrating their feast and McHugh JA assumed they could not do so. The basic submission was that as the premises were open only to members of the sect, they were not a place of public worship. 52. McHugh JA focussed on the term "place of public worship" as found in the town planning legislation, rather than in the rate exemption legislation. He thought the purposes of town planning legislation had little, if anything, in common with the purposes of rating or religious toleration. He referred to Joyce v Ashfield Municipal Council (" Joyce ") (1975) 34 LGRA 253, Hutley JA, (at 258) with whose judgment Reynolds and Samuels JJA concurred, had said: "The concept of public religious worship means that worship is something in the nature of a spectacle which persons who are interested have a right to see … religious performances and ceremonial are of general interest to all members of the community and only worship which can be seen is public worship…. The essence of public worship is that it is open to the public not in the sense that the public is entitled to participate in the worship - this would be an intolerable interference with the autonomy of religious bodies who have to be left the privilege of determining those who are properly equipped to approach the Deity in the approved manner, but who cannot if they wish to retain privileges attendant upon public worship exclude the general multitude from an observing role". 53. McHugh JA examined another line of authority which made it plain "that public worship is consistent with the public having no right to enter the place of worship" and that "public worship looks at the nature of the worship from the standpoint of the individual who attends the place of worship. For him public worship occurs when he worships in a congregation as opposed to a private or family setting". 54. A Canadian decision identified by McHugh JA had held that services held in a private house constituted public worship. In Canterbury "the use of land for a place of public worship is a use which the ordinance deems to be generally compatible with the primary use of land for dwellinghouses. Nothing in any of the other uses for which land in [the same residential zone] may be used indicates that access by the public to the land is a necessary attribute…. Even a public building does not require public access". (Vol 55 p333). Hence (at 334): "nothing in the purpose or context of the particular zoning indicates that the makers of the ordinance thought that it was desirable that only places of worship to which the public could come as of right should qualify for inclusion in the zone …". "Moreover, a requirement that a place of worship should not qualify unless members of the general public are admitted hardly accords with the reality of public worship in the Australian community. Places of public worship are essentially gathering places for members of particular religious denominations. True it is that, occasionally, an outsider may be present in the premises. But for the most part strangers go to observe rather than to participate in the worship. Access by the general public is an accidental rather than an essential attribute of public worship in this country". 55. McHugh JA also expressed the view that the definition of place of public worship pointed against the requirement of public access because it included places of religious instruction or training. The overall purpose of the zoning was to provide that the designated area would be used essentially for dwelling houses but that Council could consent to the provision of various amenities which promoted the enjoyment of land used for residential purposes. Such an amenity does not have to be available to every person in the zone and residents may not even be the primary beneficiaries of an amenity. His Honour concluded (at 336): "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. In my opinion the purposes of the ordinance are best served by interpreting the expression 'places of public worship' as places where people gather for congregational worship. Access by members of the general public is not a necessary attribute of a place of public worship for the purposes of this ordinance". 56. As the members of the sect used the premises as a place where they pray together and gather for quiet readings with Elders, McHugh JA found that those practices constituted "congregational worship" and the premises were therefore a "place of public worship". 57. Priestley JA formed the impression that the persons using the house "for their religious purposes were doing so for the purpose of private prayer rather than congregational worship". He quoted (at vol 55, p325) from an encyclopaedia entry on Islam: "the five pillars of Islam are belief in one God, prayer, alms-giving, the pilgrimage, and fasting in Ramadan. Prayer should rather be called worship, for the prescribed forms contain no intercession; it is performed 5 times a day: before sunrise, after midday, in the late afternoon, at sunset and when the night is dark. Worship is preceded by an ablution and the worshipper faces Mecca. Each 'prayer' consists of sections, varying in number from 2 to 4 with a prologue and epilogue; a section consists of a litany said in various attitudes, sittings, standing, bowing, and with the forehead touching the ground. Worship may be performed anywhere, but preferably in a mosque. After the set ritual a man may offer what petitions he pleases". 58. Encyclopaedia Britannica supplements this definition by referring to the worshipper facing the Kiblah (the direction of prayer which is now Mecca). In a mosque the Kiblah is indicated by a niche in one of the walls. "The service consists of prescribed ejaculations, and the recital of parts of the Koran , always including the first sura accompanied by prostrations of the body … Detailed physical positions are described for each part of the worship…". (Vol 55 p326). 59. One writer relied upon by Priestley JA said that the second pillar consists of five congregational prayers in a day, although they may be offered individually if one cannot go to the mosque for some reason. Priestley JA thought the word prayer in that sense was being used "in the popular rather than the technical religious sense". He concluded that the materials he had surveyed showed that what was spoken of as private prayer in the evidence before Cripps J was, in technical religious terms, "congregational worship", in the sense propounded by McHugh JA in his judgment. As the Moslem Alawy Sect is a sect within Islam, the institution described as the second pillar binding upon Moslems generally is fully binding upon the sect. 60. In the High Court the decisions of Cripps J and the Court of Appeal were upheld. 61. The five Judges of the High Court delivered a joint judgment in which they found that the definition of "place of public worship" was "circular", but supportive of the view that the phrase was intended to be read in a sense "which would encompass premises which are used as a place to which members of a local religious group or sect resort to worship in the presence of one another regardless of whether they are open to the public generally" (vol 61 p151). 62. Such a definition precludes any general proposition (because of its inclusion of chapel and places of instructions or training) that a place cannot be a place of public worship for the purposes of the ordinance unless it is open to the public generally. 63. The Court adopted Cole on the distinction between private or domestic worship on the one hand, and public or congregational worship on the other. As the ordinance included its own definition of the phrase "place of public worship" and provided its own context, one does not have a need to adopt the meaning of public worship in a rating type provision. 64. The Court found that the evidence established: "that the primary use of those premises is as a place to which the male members of the Alawy Sect living in the Punchbowl area resort to perform acts of worship in the presence of any other local members of the sect who may be present for the same purpose at the time. That being so, the primary use of the premises is as a 'place of public worship' within the meaning of that phrase as used in the ordinance". (at p153). The Evidence presented in this case 65. As the Council's files regarding 1954 were lost in a recent fire, the Court has access only to a one page document of consent, and there is no evidence at all as to whether or not Council contemplated at the time of giving the 1954 consent, the prospect of public worship other than Christian worship taking place in the building it approved. 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. 67. Those differences would pose no problem for the Court had the 1954 consent been for a "place of public worship", even though, as noted in Canterbury , the definition has a circularity not shared with other definitions such as "place of public assembly" or "refreshment room". 68. Some information as to what the respondents' usage of the subject land would and does entail, can be gleaned from: · an examination of the Council Officers' report on the 1996 development application; · the eye witness observations of two near neighbours, Anna Rewak (who has lived at 9 Helen Street since 31 July 1976) and Ludwika Wrczak (who has lived at 17 Proctor Parade directly adjoining the subject property since 1957), and · the evidence of the President of the second respondent, Mr Faruk Ahmed Choudhury. 69. Summarising the evidence presented, the Court notes the following factors: · Apart from the church building itself, there is a small toilet block located on the subject land very close to Mrs Wrezak's bedroom window. · The estimated capacity of the church building is 73. · Whereas relatively modest crowds used to attend the Presbyterians' church building, only on Sunday mornings and for occasional weddings, funerals, etc., now between 20 and 50 people attend the building five times every day, at various times between 5am and shortly after sunset, for short periods of 15-20 minutes. · On Friday at lunchtime up to 200 people may attend and, at least twice a year, there are large functions within the building and in the surrounding yard, lasting for approximately 2 hours. Mr Choudhury concedes that there may be 20 people sitting on the land outside the building. · The streets are full of cars at the peak time, namely lunchtime Friday. · Ablutions take place in the yard outside the building prior to worshippers entering the building. I am not satisfied on the evidence that there is any washing activity that is likely to cause offence. · There is no singing or chanting involved in the prayers, but a prayer leader does lead prayers, and it is conceded that he may do so somewhat loudly on occasions. · The mosque would usually draw its attendance from within a 2-3km radius but Mr Choudhury comes, e.g. from Baulkham Hills. · A microphone would be used only on the two feast days and then during a period of approximately 1 hour after 8am. · Mr Choudhury described the five important principles of Islam, and the practices of Islamic sects, in similar terms to those relied upon and quoted by Priestley JA in his judgment in Canterbury . · In addition to the regular prayer sessions etc. there are occasional weekend community gatherings and lectures of a religious character held at the mosque, as well as language/culture classes for children on Sundays between 10am and 12 noon. · While a mosque may cater for a predominant country of origin, all mosques openly accept worshippers from other origins. Submissions and considerations 70. Mr Hemmings for the Council, draws from Cole the principle that a "church" requires parishioners and that a "mosque" cannot therefore be a church as Muslim worship does not relate specifically to a parish or identifiable local area. Both mosques and churches are places of public worship, but they have different characteristics and different environmental impacts. They are used by worshippers in a different way on different days, in different numbers, and at different times, and, because of washing and overflow crowds, a mosque use may require the use of different parts of the subject land from a church use. 71. The Council submits that it should be entitled to review those impacts, and assess them in the planning context, given that the Council has determined that the use by the current owners is different from the use made of the subject land by the Presbyterians. The old consent cannot underpin the new use because an approval of one use particularised in the definition of "place of public worship", cannot be an approval for others within the definition. 72. The leading case on characterisation is Shire of Perth v O'Keefe (1964) 110 CLR 529 in which Kitto J said (at 535): "… the 'exiting use' bylaws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the bylaw in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorised …, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree … and for that reason border-line cases will inevitably arise in which opinions will differ… If premises were being used as professional offices at the commencement of the bylaws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to by a person speaking in a town-planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher's shop, for example, I should be inclined to think that while it would be immaterial to inquire into the details of the user the 'purpose' in the relevant sense would be the purpose of a butcher's shop, and not of a shop generally. In the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before". 73. Menzies J (at 537) was hesitant on the butchers shop question: "It seems to me that it may be, for instance, that premises used as a butcher's shop at the relevant time could subsequently be used as a small goods shop. It is, of course, common for shops in a shopping centre in a residential area to be used from time to time for the sale of different wares and I would not wish to say anything here to cast any doubt upon the lawfulness of such changes." 74. Kitto J's comments were quoted with approval by Moffitt J in Thompson v Cash Clearances Pty Ltd (1967) 14 LGRA 437, where his Honour was dealing with a building which, immediately prior to the planning instrument, was used as a retail shop for the sale of groceries, soft drinks, fruit and vegetables and was later observed to be used for the retailing of electrical goods. 75. In Harris & Anor v Hawkesbury Shire Council (1989) 68 LGRA 183 the Court of Appeal further considered the question of "shop" in the context of actual use for mixed business or general store and subsequent use for the sale of honey, jams, flowers, bush rock and handicrafts. The Court held that the effect of cl 27(2) of the planning instrument was to enable consent obtained under the CCPSO to be enforced notwithstanding that its permitted uses were wider than the existing use referred to in cl 27(1). The 1971 consent was to use the subject premises as a shop and that involved the satisfaction of conditions which survived and the applicants were thereafter entitled to use the subject premises as a shop of any description. Clarke JA (at 188) said that consent to use premises as a shop was a wide consent. The CCPSO defined shop to mean "any building or place … used or designed for use for the purpose of exposing or offering goods for sale by retail …". He held that the consent therefore enabled the premises to be used as a shop of any description. The actual use at the relevant date was much narrower. See also Cagliostro v Penrith City Council (1997) 97 LGERA 356. 76. In this case there is no argument that the building on the subject land has been used more or less continuously, as a place of public worship since it was constructed following the 1954 consent. However, in 1954, the applicant which used the building until 1995, was a Christian church, and the approval was clear on its face in providing for "erection of brick church and office" on the subject land. 77. I am satisfied that both a Presbyterian church and an Islamic mosque are places of public worship, but that an approval for "church" connotes use by Christian denominations and is not sufficiently wide to embrace use as "mosque". 78. The Council on receipt of an appropriate application may well approve the use of the subject land as a place of public worship, in the broad sense or specifically as a mosque, but the effective consent now applying to the land does so in rem and is a consent for use only as a church. 79. I do not accept Mr O'Rourke's submission that the OHP, published at about the time the Presbyterian application was made in the early 1950's, can be inferred to have been relied upon by the Council in the granting of the 1954 consent, so that, in approving a church for the subject land, the Council was approving a place of public worship. I concede some strength in Mr O'Rourke's argument that the Macquarie , which was published in 1981, and is relied upon heavily by the NSW Courts as representing the relevant use of English language, indicates that to restrict the definition of "church" to Christian worship is to give it a narrow construction. Nonetheless, I think on the evidence available and on the basis of the authorities to which the Court has been referred, such is the appropriate construction of the word in this case. 80. 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". 81. In my opinion, adopting Lord Reid's test in Brutus v Cozens , "an ordinary sensible man" would certainly regard a mosque as a place of public worship, but would not regard it as a "church", which term carries, at least in this country, a Christian connotation. 82. To state the obvious, if "church" embraced non-Christian public worship, there would be no real need to include "other place of public worship" in the planning instrument definitions of "place of public worship." Conclusion 83. Accordingly, I am satisfied that a mosque, while a place of public worship, is not a church, which is a place of public worship in the Christian tradition, and that the 1954 consent permits the use of the subject land for purposes of Christian worship, but not other public worship. 84. The current use has therefore been carried on without consent since the lapsing of the 1996 consent, and is not permitted by the extant 1954 consent. 85. Accordingly, I make the declarations sought in the Class 4 application, namely: 1. The current use is without the consent of the applicant under the EPAA. 2. The respondents by themselves their servants and agents and assigns are using, suffering or permitting the land to be used for purposes in contravention of the EPAA, and 3. The respondent's use is not authorised by the consent to development granted in 1954 for the erection of a brick church and office on the land. 86. As I have come to the conclusion that the applicant has been completely successful, it is appropriate that the respondents be ordered to pay the applicant's costs. 87. The applicant's bundle of documents ( Exhibit A1 ), dictionary extracts and the extract from the County of Cumberland Planning Scheme Ordinance may be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 26 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. 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. 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