VCAT Says Objectors Cannot Hide

Most readers will be aware of the recent VCAT decision granting permission for an Islamic Mosque to be constructed in East Bendigo. The permit application made by the Australian Islamic Mission Incorporated sought to use and develop the subject land as a place of assembly, including a place of worship, separate sports hall, a caretaker’s dwelling, and associated facilities such as an office, education room, shop and café.

The proposal, Bendigo’s first mosque, has attracted wide media coverage and seemingly polarized the opinion of some in Victoria’s fourth largest city.

In Hoskin v Greater Bendigo CC and Anor [2015] VCAT 1124, the Tribunal granted a resounding thumbs up to the mosque. However, before the merits of the application were heard by VCAT an earlier hearing in which an objecting party sought to hide her identity (Evers v Greater Bendigo CC & Ors (includes Summary) (Red Dot) [2014] VCAT 816) reinforced the notion that parties to a hearing should be known and publically named.

In refusing to hide the identity of the objecting appellant the Tribunal noted:

An applicant sought a proceeding suppression order to conceal her identity as the objector applicant for review in a proceeding concerning the proposal for a mosque in Bendigo…

Given it is rare for the Open Courts Act 2013 to be invoked in proceedings in VCAT’s Planning and Environment List to conceal a person’s identity, the relatively brief reasons set out some of the relevant considerations.

In particular, s 4 of the Act creates a statutory presumption in favour of disclosure of information in VCAT proceedings, and the Tribunal can only make a suppression order under very limited grounds in s 18. The Tribunal must be satisfied that the order is necessary, as opposed to being merely desirable, to achieve its purpose. Importantly, under s 14 of the OCA, VCAT must be satisfied ‘on the basis of evidence or sufficient credible information’ that the grounds for making the order are established…

Given the public nature of planning decision making at a community level, a citizen or group of citizens taking a stand for or against a particular proposal for the use or development of land should be publicly identifiable so that the extent to which their interests are materially affected by the proposal (if any) can be properly assessed on relevant planning grounds. It would be a very rare circumstance, if ever, that either a permit applicant or objector could satisfy the grounds for a proceeding suppression order to conceal their identity under the Open Courts Act 2013 in a review proceeding at VCAT under the Planning and Environment Act 1987.

In this case, the applicant fell well short of satisfying any possibly relevant ground.

This determination reinforces the preferred ‘open’ and ‘transparent’ process under which both permit applications and VCAT appeals should be determined.

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