VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P477/2021
Permit Application no.P306552/11.02 	
CATCHWORDS	
Section 82 Planning and Environment Act 1987; Mitchell Planning Scheme; low density Residential Zone; Environmental Significance Overlay Schedule 3, Floodway Overlay, Amendment to existing permit; Alterations to existing restricted place of assembly, neighbourhood character, impacts on amenity, display of signage.	

Applicant	John Anthony Keeffe OAM	

Responsible Authority	Mitchell Shire Council	
Respondent	Belfield Planning Consultants	

SUBJECT LAND	22 Dempsey Road
SEYMOUR VIC 3660	

HEARING TYPE	Hearing	

DATE OF HEARING	1 November 2021	

DATE OF ORDER	4 February 2022	

CITATION	Keeffe v Mitchell SC [2022] VCAT 134   	

Order
1	The decision of the Responsible Authority is varied.  
2	Planning Permit No. P306552/11 is amended and an amended permit is directed to be issued for the land at 22 Dempsey Road Seymour.  
3	The Tribunal directs that Permit No. P306552/11 must contain the conditions set out in the Notice of Decision P306552/11.02 issued by the Responsible Authority on 23 February 2021 with the following modifications:
(a)	What the permit allows is amended to read as follows:
•	Use and development of the land for a restricted place of assembly and the installation and display of a business identification sign.
(a)	Condition 22 is amended to read:
22	Before the building is occupied, a detailed landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved the plan will be endorsed and will then form part of the permit. The landscape plan must be prepared by a person suitably qualified or experienced in landscape design and must be drawn to scale with dimensions and an electronic copy must be provided. The landscape plan must be generally in accordance with the plan prepared by Rosemont Nursery Landscaping and Design (drawing Number 1294 dated 18 December 2012) but modified to show:
a)	Updated details of the existing vegetation on the site and neighbouring property to be retained (including details of species and size).
b)	Additional screen planting (including canopy trees) along the western boundary of the property and between the northern façade of the building and the accessway.  
c)	a detailed schedule of all proposed trees, shrubs and groundcovers, including botanical names, common names, pot sizes, sizes at maturity and quantities of each plant 
d)	details of the irrigation system to be used on land following completion of the landscaping works
(b)	A new condition 1(c) is included as follows:
1(c)	The orientation of the site correctly identified on the plans and all elevations.  
4	Plans endorsed under the permit are amended and the responsible authority is directed to endorse amended plans generally in accordance with the plans prepared by AT Architecture Design (drawing numbers 01 to 06 inclusive dated 11 August 2020), modified in accordance with the conditions of the amended planning permit No. P306552/11.02.  
5	The Responsible Authority is directed to issue a modified permit in accordance with this order. 

Katherine Paterson
Member			

Appearances
For applicant	Mr John McCaffrey, Town Planner	
For responsible authority	Mr Francis Wong, Town Planner, Mitchell Shire Council	
For respondent	Mr Kim Bellfield, Town Planner	

Information
Description of proposal	Extension to existing restricted place of assembly including the provision of a covered ladies area and bathroom facilities.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Mitchell Planning Scheme	
Zone and overlays	Low Density Residential Zone, Environmental Significance Overlay Schedule 3, Floodway Zone.	
Permit requirements	Clause 32.03-4 – Construct a building or construct or carry out works.  	
Land description	The subject site has an area of 7.749 hectares and currently contains a dwelling and a small place of worship. 	
Tribunal inspection	4 November 2021, accompanied by all parties   	
Cases referred to	Keefe & Ors v Mitchell SC [2012] VCAT 1157	

  Reasons
What is this proceeding about?
1	On 2 August 2012 the Tribunal granted a planning permit for the construction of a restricted place of assembly and a reduction in car parking requirements.  The Tribunal described the then proposal as follows:
[2]	The applicant wishes to construct and use a prayer room of 47.5 square metres connected by a covered walkway to an ablutions block. The complex also includes a pergola, courtyard and barbeque area. A screen fence encloses the buildings and courtyard, with perimeter landscaping on the outside. The proposed development is set back 11.37 metres from the western boundary of the property and 25.89 metres from the northern boundary. The complex is 2 metres southwest of an existing shed and approximately 40 metres west from the existing dwelling.
[3]	The permit applicant submits the proposed development is to be used as a prayer room for private use by up to 20 people comprising the residents of the property and their extended family.
[4]	The prayer room is to be used for daily prayer typically five times during each day, between 4.20 am to 11.10 pm for periods of between 5 and 10 minutes.
[5]	The facility will also be used on nine cultural and religious days celebrated by the Muslim faith throughout the year. On these days, the hours of activity will be during the period 9 am to 9 pm.
2	Conditions of the permit restricted the number of persons on site to 20 at any one time and the hours of operation of the facility.  
3	In the time since the permit was granted, the plans endorsed under the permit have been amended several times.  
4	Plans were endorsed under secondary consent of the permit on 2 August 2012, showing the construction of a 45.5 square metre prayer room, a covered walkway, ablutions block and barbeque pergola.  
5	On the 19 April 2013 the plans were amended again.  The endorsed plans showed the prayer room to be generally the same layout as the 2012 plans, but made changes to the roof form and fencing.  The general layout of the buildings and works were as follows on the site:

6	The endorsed plans also included a landscape plan which included planting along the southern boundary of the site.  It appears that this landscaping was never implemented.  
7	The plans were amended by Mitchell Shire Council in 2017, with the endorsed plans showing a significantly larger and reorientated prayer room generally as follows:

8	The endorsed plans increased the site of the prayer room to 103 square metres, and the overall complex to 338 square metres.  The applicant submits that notice of this amendment was not given under Section 82 of the Planning and Environment Act 1987.  
9	The application now seeks to make further changes to the prayer room to create a ladies area, including bathroom facilities.  The proposal will further extend the complex by 61 square metres to a total of 399 square metres.  The works have been partially constructed, and as such this application is partially retrospective.  The application also sought retrospective approval for the erection of a sign.  The sign was proposed to be 3 square metres, mounted 2.85 metres above ground on 100-millimetre square poles. The sign will be non-illuminated, with raised dark grey text on a light grey background. The wording on the sign will state “Masjid Al-Sahabah” which loosely translates to Companions of Muhammad Mosque.  Council determined to grant an amendment to the permit.  Conditions of the Notice of Decision, which have not been disputed by the permit applicant, require the sign to be reduced in size to 1 square metre and relocated to be adjacent to the prayer room to be only viewable to those entering the site.  The amendment has not sought changes to the number of persons on site, the hours of operation of the facility or to the approved car park.  The changes are generally shown in the extract of the plans provided below:

10	The applicants for review have requested that the Tribunal review the decision to grant an amended permit.  The applicants submit that the changes approved in 2017 significantly increased the impact on the amenity of the adjoining properties through visual bulk, which will be further exacerbated by the proposed verandah and ladies prayer room which moves the buildings closer to the title boundary with the adjoining residential property to the east.  They submit that the proposed changes which would further increase the size of the complex to 399 square metres is inappropriate within a Low Density Residential Zone, as:
•	The building is significantly closer to the adjoining property boundary than that approved by VCAT.
•	Landscaping required by VCAT has not been established.
•	No delineated carparking has been provided.
•	The building layout is no longer that intended for a private prayer room but rather has the form and notoriety of a mosque.
•	The use of the building as a private prayer room is challenged given the promotion of the facility on the internet as a mosque, by the need for the sign for which approval is sought and because of the form of messaging on the sign sought.
•	Given the applicant’s claim, accepted by VCAT, that the use of the site is not a mosque there can be no justification for the signage for which approval is sought, either in size, location or with its messaging.
11	Many of the submissions by the applicants raised issues of non-compliance with the existing planning permit.  It is noted that this application is not an enforcement proceeding and these matters are not before the Tribunal.  What is before the Tribunal is the latest changes sought to the permit, which comprises of the ladies room facilities, verandas and additional windows to the façade.  
What are the key issues?
12	Having considered all the submissions and evidence and inspected the subject land and its locality I am of the opinion that the key issues in this proceeding are:
•	Does the proposal change the use of land?
•	Are the proposed amendments an acceptable response to the Neighbourhood Character of the area?
•	Does the proposal create unacceptable amenity impacts?
•	Is the proposed sign acceptable?
I will consider each in turn.  
Does the proposal change the use of land?
13	The Tribunal in Keefe & Ors v Mitchell SC [2012] VCAT 1157 made the following findings with respect to the use of the facility:
[15]	The definition of a ‘Place of Worship’ is nested under the Place of Assembly Group at Clause 75.09 of the planning scheme. A ‘Restricted Place of Assembly’ is also included with this group. 
[16]	For example, ‘Place of Worship’ nominates land used for religious activities such as a church, chapel, mosque, synagogue and temple. Restricted Place of Assembly refers to “Land where people congregate for religious or cultural activities, entertainment, or meetings.” 
[17]	I do not consider the proposed prayer room is a mosque for general public access, such as is listed in the definition of a Place of Worship. 
[18]	I consider the description of the proposed prayer room is more accurately described as land where people congregate for religious activities. The nomination of the prayer room for private use is not a key factor in the planning context of this definition; rather, the planning issue is the effect of up to twenty people using the subject site for use as a Restricted Place of Assembly. Accordingly, I find the proposed use to be a ‘Restricted Place of Assembly’.
14	The applicants submit that at the time of the approval, the Tribunal considered that the use of the building was as a private prayer room for use by friends and family of the occupants of the dwelling that exists on the land.  They submit that the residents no longer live there on a full-time basis, and information suppled by the applicants indicates that the premises has been made available to members of the general public.  
15	It is important to note that the application to amend the permit has not sought to change the use of the land from a restricted place of assembly to a place of worship, nor the number of persons present on site, the hours of operation of the facility or the approved car park.  As such the question regarding the use of the facility or the function of the existing car park is not before the Tribunal.  The questions as to whether the use of the facility or car park complies with the planning permit will need to be addressed via other mechanisms.  
Are the proposed amendments an acceptable response to the Neighbourhood Character of the area?
16	When considering an application for buildings and works within the Low Density Residential Zone, the decision guidelines require consideration of the Municipal Planning Strategy and the Planning Policy Framework.  Clause 15.01-5S seeks to ensure development responds to its context and reinforces a sense of place and the valued features and characteristics of the local environment and place by respecting the: 
•	Pattern of local urban structure and subdivision. 
•	Underlying natural landscape character and significant vegetation. 
•	Neighbourhood character values and built form that reflect community identity.
17	Clause 21.11-6 provides policy guidance for the development of Seymour, which amongst other things, encourage high standards of urban design and architecture in the development of new buildings.  
18	The subject site is located at the eastern end of Dempsey Road, with the existing facility partially visible from the road.  The main structure that is visible to the street is the existing two storey dwelling on the site, with the prayer room complex partially hidden behind existing roadside vegetation.  
19	The proposed changes in built form will bring the facility closer to the boundary with the adjoining property and the streetscape.  
20	The character of the area could be described as dwellings on large allotments hidden behind vegetation both within the private and public realm.  
21	I find that the amended built form will fit comfortable with this pattern, provided it is nestled behind some additional vegetation.  Conditions 22, 23 and 24 require the submission, endorsement, implementation and maintenance of a landscaping plan.
22	A landscape plan was endorsed under the planning permit on 19 April 2013, an excerpt of which is provided below:

23	This plan appears not to have been implemented and the existing vegetation (shown in green and red on the plan) has been removed on both the subject site and the neighbouring property, with some more recent planting occurring on the neighbouring property to the west.  Given the changes in the built form that are proposed by this application, I consider it is appropriate for a revised landscape plan be prepared showing landscaping planted along the western boundary and within the northern setback of the building to the accessway.  With this change, I consider that the buildings and works will be a comfortable fit within the streetscape.  I have amended the conditions to refer to the previous landscape plan and require these amendments.  
Does the proposal create unacceptable amenity impacts?
24	The proposed buildings and works do have the potential to affect the amenity of the adjoining property through visual bulk and overlooking from the proposed additional windows along the western façade of the building.  

25	As can be seen from the above Nearmap image, the adjoining property to the west has been set back a considerable distance from the road frontage, with the more private recreational areas such as the swimming pool located to the rear of the dwelling.  The prayer room adjoins the area of the site forming the front setback of the dwelling, which I consider to be less sensitive that the section of land to the rear of the dwelling.  
26	The existing built form is very visible when viewed from the front garden of the neighbouring dwelling.  However, I find that the amenity of the adjoining dwelling will not be unreasonably affected through visual bulk, as this section of the property is less sensitive than the rear garden.  The proposed changes in built form, particularly the adding of the verandas may assist in mitigating the impact of the existing built form by breaking up the bulk of the existing built form when viewed from this space.  Furthermore, the landscaping I have required to be planted along the western boundary of the site will also assist in softening the impact the built form when viewed from the adjoining property.  
27	In terms of overlooking, it is acknowledged that the proposal will introduce a series of ground floor windows within 9 metres of the neighbouring property, which will not be screened through a solid fence or other method.  
28	As the building is for a restricted place of assembly, the usual requirements to prevent overlooking that apply to dwellings do not apply to this application.  However, I am satisfied that the amenity of this dwelling will not be unreasonably affected through overlooking from the built form, as it will overlook the front setback, rather than the area to the rear of the dwelling.  Again, my requirement for additional landscaping between the building and the boundary will assist in mitigating this impact on the amenity of the adjoining property.  
Is the proposed sign acceptable?
29	The application also sought retrospective approval for a pole sign.  Conditions of the notice of decision, which have not been disputed by the permit applicant require the sign to be reduced in size to 1 metre and relocated so that it is only visible to those entering the site.  This would reduce the size of the sign so that it is generally consistent with signs allowed “as of right” for places of worship as specified at Clause 52.05-10 of the scheme.  As the use of the land is a restricted place of assembly, a planning permit remains required for the display of the reduced signage, which falls within the definition of a business identification sign.  
30	The applicant for review queried whether there is a need for advertising signage for the facility if it is to be used as a prayer room which is open to family and guests only.  
31	Clause 52.05-8 of the Mitchell Planning Scheme requires consideration of the need for identification and the opportunities for adequate identification on the site or locality.  
32	The permit applicant submits that due to the remote location of the site, it is not unreasonable that the permit applicant would want a sign that correctly identifies the Majid, noting that the planning permit does not prevent people coming to the property for prayer.  
33	The definition of a restricted place of assembly provided at Clause 73.03 of the scheme is:
Land used by members of a club or group, or by members' guests, for religious or cultural activities, Restricted place of assembly entertainment, or meetings. It may include food and drink for consumption on the premises, and gaming.
34	The definition does allow the family to invite guests to the premises to use the prayer facility.  It is reasonable to expect that some form of signage is required to identify the site for these guests, particularly if they are unfamiliar with the site.  I therefore find that the sign as approved by Council is acceptable.  I have amended the preamble of the permit to delete the word “pole sign”, to reflect the sign authorised by the amended planning permit.  
What conditions are appropriate?
35	The plans have incorrectly identified the orientation of the site in several locations.  I have amended the conditions to require the correct orientation to be shown on the plans.  
Conclusion
36	For the reasons given above, the decision of the responsible authority is varied.  An amended permit is granted subject to conditions.

Katherine Paterson
Member