Jensen v Brisbane City Council
[2005] QSC 50
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- Unreported Judgment
- Jensen v Brisbane City Council[2005] QSC 50
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Jensen v Brisbane City Council[2005] QSC 50
Jensen v Brisbane City Council[2005] QSC 50
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application for statutory order of review |
DELIVERED ON: | 18 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24-26 November 2004 |
JUDGE: | Mullins J |
ORDER: |
|
CATCHWORDS: | REAL PROPERTY – RATING OF LAND – RATABLE LAND – EXEMPTIONS – CHURCH LAND – whether land improved by a large building and a car park used by the Brethren for public worship – where Council decided that the land was used by the Brethren for private congregational worship and refused to give an exemption from general rates – where there were signs indicating that it was “Brethren’s Meeting Room Place of Public Religious Worship” and a means provided for obtaining details of meeting times – where visitors who appeared well disposed, not looking to make trouble or affected by alcohol and appropriately dressed were admitted to all but one of the services – land was used for public worship The Association of the Franciscan Order of Friars Minor v City of Kew [1944] VLR 199 Broxtowe Borough Council v Birch [1983] 1 WLR 314 Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145 Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525 Church of Jesus Christ of Latter-Day Saints v Henning [1964] AC 420 Joyce v Ashfield Municipal Council [1975] 1 NSWLR 744 Mayor, etc of Sale v Bearup (1890) 16 VLR 658 |
COUNSEL: | G J Gibson QC for the applicants J A Logan SC and E J Morzone for the respondent |
SOLICITORS: | Hemming & Hart for the applicants David Askern, Brisbane City Legal Practice for the respondent |
[1] MULLINS J: On an application by the applicants for exemption from general rates commencing with the financial year 1996-1997, one of the respondent’s employees decided that the applicants’ land situated at 91 Lytton Road, Bulimba (“the land”) could not be included in the schedule of exempt properties, as the land was not used for public worship. That decision was conveyed to the applicants by letter dated 2 June 2000. On 30 June 2000 the applicants applied for judicial review of the decision. The issue upon which this application turns is whether the respondent’s delegate erred in determining that the land was not used for public worship.
The applicants
[2] The applicants are the current trustees of Gospel Trust No 1 (“the trust”) which was constituted by a trust deed made by George Ernest Eade, George Ernest May and William Lloyd Kirkpatrick on 27 February 1975. The Trust Purposes were defined in cl 1(1)(c) of the trust deed as:
“(i)the carrying on of the service of God including the celebration of the Lord’s Supper Gospel Preachings and Bible Readings and Addresses on the Word of God and other meetings of a Christian religious character according to the injunction contained in the Holy Scriptures for those Christians forming part of a world-wide fellowship, variously known and hereinafter referred to as Brethren, who hold and practise the teachings of Christ and his Apostles contained in the Holy Scriptures as expounded by His servants the ministers of the Lord in the Recovery, Mr. J.N. Darby, Mr. F.E. Raven, Mr. J. Taylor Sr., Mr. J. Taylor Jr., and Mr. J.H. Symington and their successors and are in fellowship with Mr. J.H. Symington (so long as he lives) and, after the death of Mr. J.H. Symington, with any other person who for the time being is a successor as a minister of the Lord in the Recovery; and
(ii) any other religious purposes of or connected with Brethren.”
[3] That definition of Trust Purposes was amended by cl 1 of the deed of amendment of the trust deed made on 7 November 2000 as follows:
“The definition of “Trust Purposes” is amended in clause 1(1)(c)(i) by deleting the words “and Mr JH Symington and their successors” to the end of clause (1)(1)(c)(i) and inserting instead the words “Mr JH Symington and Mr JS Hales and their successors, and are in fellowship with Mr JS Hales (so long as he lives) and, after the death of Mr JS Hales, with any other person who thereafter is recognised by Brethren worldwide as the successor as a Minister of the Lord in the Recovery; and”.
[4] The applicants are members of the fellowship of Christians known as the Brethren which is the term that is used by the applicants and other members of the Brethren. That fellowship is sometimes referred to by others as the Exclusive Brethren.
[5] A member of the Brethren, Mr Cooper, provided two affidavits in support of the application. The first affidavit was filed on 30 May 2003 and the second affidavit was filed on 19 August 2004. Mr Cooper explained the establishment of the Brethren in paragraph 2.2 of the first affidavit:
“The fellowship is worldwide. The fellowship traces its roots to a meeting between John Nelson Darby, then an Irish Curate of the Anglican Church of Ireland and four others in 1827 to break bread on the basis of Matthew Chapter 18 Verse 20. The fellowship subscribes to the translation of the Holy Bible by JN Darby, written in the latter part of the 19th century. The fellowship also recognises the worth of the King James version of the Bible, which is used in all public matters.”
[6] Mr Darby was the first of those members of the Brethren who have been designated as the Minister of the Lord in their Recovery. The successors are identified in the trust deed, as amended. There are no ordained clergy, but there is informal recognition of elders in each locality.
[7] In oral evidence Mr Cooper described the beliefs of the Brethren (at Transcript p29):
“Briefly the Brethren are a worldwide company of Christians, believers on (sic) the name of our Lord Jesus Christ, persons who by faith lay hold of his redemptive work, the scripture being the blood of Jesus Christ cleanses us from all sin and who adhere to the teaching of Christ and his apostles, and particularly the Apostle Paul. We seek to live our lives according to the teachings of the Holy Bible. Our practices include, importantly, separation from evil which is our bond and the celebration of the Lord’s Supper, which is the key occasion upon which our fellowship is based.”
[8] Mr Cooper explained that there were a number of passages in Scripture for the foundation of the principle of separation from evil including that found in Mr Darby’s translation of the second book of Timothy, chapter 2, verses 19 to 22:
“Yet the firm foundation of God stands, having this seal, [The] Lord knows those that are his; and, Let every one who names the name of [the] Lord withdraw from iniquity. But in a great house there are not only gold and silver vessels, but also wooden and earthen; and some to honour, and some to dishonour. If therefore one shall have purified himself from these in separating himself from them, he shall be a vessel to honour, sanctified, serviceable to the Master, prepared for every good work. But youthful lusts flee, and pursue righteousness, faith, love, peace with those that call upon the Lord out of a pure heart.”
[9] Mr Cooper explained that the principle of separation from evil requires the members of the Brethren to avoid anything sinful and keeping away from persons who may be identified with what the Brethren regard as evil. By way of illustration, Mr Cooper said that it would be unusual for a member of the Brethren to possess a television or radio or attend the cinema or theatre or join any group that included people who were not in fellowship with the Brethren or live in an apartment building where some of the occupants were not in fellowship with the Brethren.
[10] In paragraph 2.8 of the first affidavit, Mr Cooper dealt with the preaching undertaken by members of the Brethren in the streets of Brisbane:
“Members of the fellowship also preach the gospel of salvation, in which persons are invited to come to God, in the streets. To my knowledge, the gospel of salvation is preached by members of the fellowship at several suburban locations and at four locations in Brisbane City/Fortitude Valley (and in the case of those four, every week day), together with other locations outside Brisbane and, of course, in places all over the world. Persons demonstrating an interest in the Brethren fellowship may be invited to attend one of the meetings held at whatever meeting room may be most appropriate and convenient to them, or visit one of the Brethren’s homes for discussions and help.”
History of the land
[11] After the trust was established, the trustees sought the assistance of the respondent in identifying a suitable site for building a new place of worship. The parcel of land described as Portion 391 and Subdivisions 1 to 12 and 15 to 56 of Allotment 30 on Registered Plan No 60928 was a disused quarry site with frontages to both Lytton Road and Bolan Street. Although it contained an area of 2.538 hectares which was more land than the trust needed for a church, the trustees acquired it in 1977 from the respondent to be held by them as trustees of the trust. The contract between the trustees and the respondent for the purchase required the trustees to make an application to the respondent to use that land for the purpose of a place of public worship. The consent of the respondent to that use was given in March 1978, subject to conditions including that the respondent be granted an easement over part of the land at no cost. The purchase of the parcel of land was then completed in or about April 1978. The trustees granted the drainage easement required by the respondent. Subsequently, two house allotments were subdivided off, leaving an area of land of 2.327 hectares.
[12] The term “meeting room” is generally used by the Brethren to describe their place of worship instead of the word “church”. (There are presently 14 meeting rooms of the Brethren in Brisbane.) In 1979 the trustees applied to the respondent for building approval for the meeting room to be constructed on the land. The meeting room (which the Brethren call the Bolan Street meeting room) was completed by 5 January 1980. Town planning consent permits were obtained by the trustees from the respondent in 1992 and 1993 for alterations and additions to the meeting room, filling part of the land and extending the existing paved car park. A building approval was also obtained for the alterations and additions to the meeting room which were carried out.
[13] The meeting room was first used on 5 January 1980. The respondent granted an exemption from payment of general rates from that time until July 1989 when the respondent sought to revoke the exemption. As a result of correspondence that ensued in 1989 between the Brethren and the respondent, the Brethren commenced to use the following wording on the signs for each of their meeting rooms including the Bolan Street meeting room:
“BRETHREN’S MEETING ROOM
PLACE OF PUBLIC RELIGIOUS WORSHIP
According to Brisbane City Council By-Law …..
INFORMATION ABOUT MEETINGS MAY BE OBTAINED BY
CONTACTING THE TRUSTEES BY TELEPHONE ……OR …..”
[14] After further negotiations the respondent gave an exemption for general rates in respect of the land back to 1 July 1989.
[15] From 1 April 1995 the respondent assessed the land for general rates. It was then realised that the area of the land was greater than 2 hectares which precluded application of the exemption. The trustees then applied for subdivision and rezoning of that part of the land covered by the drainage easement. That resulted in that part of the land on which the meeting room and car park were constructed comprising an allotment containing 1.95 hectares described as Lot 39 on RP901885.
[16] Plan number 901885 was registered on or about 17 September 1996. The balance of the rate account for the land with the respondent as at 30 June 1996 was nil. General rates were assessed by the respondent in respect of the land for every quarter from and including the quarter commencing 1 July 1996. Although the applicants had corresponded with the Councillor for Morningside in June and July 1996 about an exemption for general rates for the land, the respondent required a new application for exemption to be made which was done by the trustees in their letter of 6 June 1997 to the respondent. Much correspondence passed between the parties and their solicitors before the decision to refuse the exemption was made on 2 June 2000 by the respondent’s delegate.
[17] The respondent’s delegate made a file note at the time of making his decision. He noted that:
“The signage on the property, while declaring the premises to be a place of public worship did not provide the public at large with the means of determining the times of services. Nor did it make invitation for the public at large to attend services without prior notification. Apart from small signage at the entrance to the property, the site provided no indication to the general public that public worship was conducted there. The padlocking of gates once all members were present discourages vehicle access to the property by non-members. Visitors not recognised as part of the congregation were challenged and discouraged from attending services.
Notwithstanding the provision of any signage or the amenity of the property for public access, Council officers, who visited the premises during a service, related difficulty in gaining access without prior arrangement. Potential visitors were asked about their motives for wanting to attend and were discouraged from participating without first attending classes at other locations.”
[18] The respondent subsequently provided a statement of reasons pursuant to s 32 of the Judicial Review Act 1991. That statement of reasons largely reflected the notes made by the respondent’s delegate, but noted that the trustees disputed the suggestion that the car park gates were locked when all attendees were present for a meeting. The delegate was prepared to assume that the car park gates were not usually locked during services, but noted that the meeting hall itself was locked during its services. The delegate described the use of the premises as for “private, congregational worship”.
Relevant legislation
[19] Section 47(1) of the City of Brisbane Act 1924 provides that all land is rateable land other than the land which falls within the categories described in paragraphs (a) to (e) of s 47(1). Paragraph (d) provides for that category of land used for public, religious, charitable or educational purposes that is exempt from rating under a resolution of the respondent.
[20] The resolution of the respondent exempting land from general rating for the financial year 1996-1997 is found in the respondent’s budget for that year. The resolution of the respondent applies to “Any land used for public, religious, charitable or educational purposes identified in the Schedule is exempt from rating.” Paragraph (c) of the Schedule provides:
“(c)Any land not exceeding 2 hectares in area and having a building thereon and used entirely for public worship or for public worship and educational purposes whether or not that land has other buildings on it that are utilised in conjunction with the church.”
[21] The resolutions of the respondent for the financial years 1997-1998, 1998-1999 and 1999-2000 relating to the exemption of land used for public, religious, charitable or educational purposes from general rating were in terms that were materially no different to the resolution of the respondent for the financial year 1996-1997.
Authorities
[22] In The Association of the Franciscan Order of Friars Minor v City of Kew [1944] VLR 199 (“Friars”) three orders of the Roman Catholic Church sought declarations that the land occupied by them was not rateable property. On the issue of whether the land was used for public worship Lowe J stated at 202:
“In my opinion worship to be public must not only be open without discrimination to the relevant public, but also be performed in public.”
Lowe J did not expand on what was meant by “the relevant public”.
[23] In the case of one of the orders, the building consisted of 20 rooms and a chapel. It was where the priests, lay brothers and the students who were being trained to enter the priesthood resided and worked. The main purpose and use of the chapel was for the residents of the college. Lowe J accepted that the chapel was used for worship, as he considered that worship may take place even where those attending only take part in the ceremonies by attending them, but described the ceremonies as private, stating at 204:
“The outside public were not encouraged to attend services in the chapel and apart from the residents of the college, the only persons, with the rarest exception, to attend from the outside public were the lay members of a committee to further the missionary work of the college.”
[24] The issue of whether land occupied by the Mormon Church for their Temple was exempt for rating was the subject of Church of Jesus Christ of Latter-Day Saints v Henning [1964] AC 420 (“Henning”). Exemption from rates applied to a “place of public religious worship”. Although the Mormon Church conducted chapels which were open to all members of the public of any denomination, the Temple was open only to Mormons of good standing. A Mormon of good standing was one whose spiritual and secular qualities entitled him, in the view of a local Bishop to a “recommend” to a President who, if in turn satisfied that the holder was entitled by his personal qualities to be a “Mormon of good standing”, endorsed the “recommend”. Until that endorsement was obtained, that person had no right to enter the Temple. The ceremonies performed in the Temple were known to Mormons as “ordinances” and were regarded by the Mormon Church as the most sacred of their services. Their Lordships were unanimous in dismissing the appeal from the Court of Appeal which had declared that the land on which the Temple was built was liable for rates.
[25] The relevant rating legislation originated from the Poor Rate Exemption Act 1833, the purpose of which was to give exemptions from rates, so that all places of religious worship should have the same exemptions as had previously existed in the case of the established Church of England.
[26] Lord Evershed considered that the construction of the words “public religious worship” in the 1833 Act depended on related provisions in the Places of Religious Worship Act 1812 which provided that no congregation or assembly for religious worship of Protestants at which more than 20 persons (other than the immediate family and servants of the owner of the premises) should participate should be permitted unless and until the place of such meeting should have been certified as provided for in the 1812 Act. Lord Evershed stated at 432:
“Reading together the relevant terms of the Acts of 1833 and 1812 there is at the least much support for the view that by ‘public religious worship’ in the former Act was meant religious ceremonies of the kind indicated in the Act of 1812, that is to say, ceremonies at which the participants numbered more than 20 persons other than the immediate family and servants of the owner of the premises, and that the admissibility of members of the public to the ceremonies was not regarded as relevant or as constituting the test for their qualification in ‘public religious worship’.”
Lord Evershed also found support for this view in the ecclesiastical cases that dealt with what was meant by conducting a public reading of the Anglican Prayer Book. Lord Evershed had “grave doubts” about the matter, but was not prepared to reach a different conclusion from the other Law Lords about the disposition of the appeal.
[27] Lord Morris of Borth-y-Gest who agreed with the speech of Lord Pearce stated at 435:
“I consider that there is a distinction between private or domestic or family worship on the one hand and public religious worship on the other. In my view the conception of public religious worship involves the coming together for corporate worship of a congregation or meeting or assembly of people, but I think that it further involves that the worship is in a place which is open to all properly disposed persons who wish to be present.”
[28] Lord Pearce referred to two alternative views of the intention of the relevant statutory provision at 436-437:
“One view, which the appellants put forward, regards the nature of the worship from the standpoint of the individual who attends the meeting rather than the nature of the meeting itself. The individual is worshipping in a congregation as opposed to worshipping in private devotion or in the domestic setting of family prayers. To him the presence of many strangers, albeit drawn from a select circle of his own church, constitutes public religious worship. For this view there is some support to be found in three ecclesiastical cases which were concerned with the behaviour of the individual, namely, the preacher who conducted the service. This notion is conveniently summed up in the words of Goddard J in Cole v Police Constable 443A [1937] 1 K B 316, 334: ‘where there is congregational worship, as distinct from private and family devotion.’
The defect of this view is that it would have to regard the meeting place of a small esoteric circle of some twenty or thirty persons worshipping secretly behind closed doors as a place of public religious worship, a conclusion which offends against one’s common sense.
The opposing view regards the nature and quality of the meeting itself rather than its aspect in the eyes of its individual components. If the public are excluded from the meeting, then the meeting-house is not a place of public religious worship. This view also has authority to support it. Its defect is that it must regard a meeting drawn perhaps from a very wide circle as failing to constitute public religious worship merely because the public beyond that wide circle are not admitted.
There was some discussion in argument as to the Church of England’s power to exclude notorious evil livers, but such exclusions are beside the point. For this purpose the admission of the public means, I think, the admission of those members of the public who are reasonably suitable, who come in reverence, not mockery, and who are prepared to behave in reasonable conformity with the requirements of the religion which they are visiting, eg, by covering their heads where that is required or by removing their shoes on entering a mosque.”
[29] Lord Pearce considered that the wording of the rating provision that was under consideration in Henning bore the same meaning as the 1833 Act. Lord Pearce observed at 440:
“By the Act of 1833 the legislature was intending to extend the privileges of exemption enjoyed by the Anglican churches to similar places of worship belonging to other denominations. Since the Church of England worshipped with open doors and its worship was in that sense public, it is unlikely that the legislators intended by the word ‘public’ some more subjective meaning which would embrace in the phrase ‘public religious worship’ any congregational worship observed behind doors closed to the public.
I find it impossible, therefore, to hold that the words ‘places of public religious worship’ includes places which, though from the worshippers’ point of view they were public as opposed to domestic, yet in the more ordinary sense were not public since the public was excluded.”
[30] It was also noted by Lord Pearce that his conclusion accorded with that of Lowe J in Friars. After referring to Lowe J’s statement that “worship to be public must … be open without discrimination to the relevant public”, Lord Pearce stated (at 440):
“By the word ‘relevant’ he left open the question of how universal and indiscriminating must be the admission of the public. The question is one of fact, and there might clearly be difficult questions whether some discrimination might be insufficient to deprive the worship of its public character.”
[31] Lords Reid and Devlin also agreed with Lord Pearce’s speech.
[32] The issue of the rateability of lands held by trustees on behalf of the Exclusive Brethren was determined by the New South Wales Court of Appeal in Joyce v Ashfield Municipal Council [1975] 1 NSWLR 744 (“Joyce”). On the issue of whether the religious services and exercises conducted in the relevant building constituted public worship, the Court of Appeal applied the decision of the House of Lords in Henning and on the tests propounded by both Lord Morris and Lord Pearce found that the Ministry of the Word was not public worship, as it was worship which was available (even for observation only) to a select and approved class.
[33] The leading judgment in Joyce was given by Hutley JA with whom Reynolds and Samuels JJA agreed. Hutley JA set out, at length, the evidence given by Mr Joyce about the beliefs, practices and worship of the Exclusive Brethren at that time and in Ashfield. Mr Joyce explained that if persons came to a meeting for the Ministry of the Word or the Reading of the Scriptures who were not known to the Brethren, they would be spoken to to ascertain who they were, why they wanted to come and if they could identify themselves such as with a letter of commendation from another assembly of the Brethren or by naming somebody in the Brethren whom they knew or could satisfy the questioner that their interest was genuine in getting help from the Scriptures, before the persons would be admitted. Mr Joyce conceded that the casual visitor, depending on the answers he gave to his questioner, may or may not be allowed to attend. Hutley JA concluded from this evidence that it was clear that strangers were not welcomed to meetings for Ministry of the Word.
[34] The evidence in Joyce was that the ceremony of breaking of bread was done in the presence of only those who were members of the Brethren. Because it was apparent from the evidence that there was the other type of ceremony to which visitors may be permitted to attend, the issue was whether both types of ceremony did not have the character of public worship. Hutley JA stated at 748:
“The fact that, at the time when the ceremony of breaking bread is performed the doors are closed and only those who had been admitted into the circle of the church are then present would not be sufficient. The building does not cease to be in the words of s. 132(h)(i) ‘used or occupied for public worship’ because there are ceremonies of a purely private nature also performed on the premises.”
[35] The other issue in Joyce on which the Council was unsuccessful was whether the subject land was exempt from rating by virtue of the trust on which the hall was held being a public charitable trust. There was an unsuccessful appeal by the Council from the Court of Appeal decision in Joyce to the Privy Council, but only on the issue of whether the exclusive Brethren was a public charity: Ashfield Municipal Council v Joyce [1976] 1 NSWLR 455.
[36] An English decision on whether two buildings used by the Exclusive Brethren for providing meeting places for the preaching of the word of God were exempt for rating purposes is Broxtowe Borough Council v Birch [1983] 1 WLR 314 (“Birch”).
[37] The Hillside Road building contained a meeting hall that seated 450 to 500 people. The Cyprus Avenue building was a prefabricated hut accommodating about 70 to 80 people. There was nothing about either building to indicate that it was a place of worship, either in its architectural design or by way of a notice board. Attendance at the Sunday morning Breaking of Bread and at the monthly Care meeting (where matters of administration and spiritual concern were raised and discussed) was restricted to those who were in fellowship with the Exclusive Brethren. Attendance at the various meetings was mainly of the households of the Brethren. There was occasional attendance by members of the public from outside those households who had showed interest in attending and were “properly disposed”. The notice board that had been on the Hillside Road building had been taken down years previously, in order to comply with the teaching of Mr James Taylor Junior, that the only acceptable form of advertising of the Brethren was by personal example.
[38] Stephenson L J stated at 326:
“A building on private property must somehow declare itself open to the public if activities which are carried on inside it are to be public, and the nature of those activities must be brought to the notice of the outside world if they are not to be private activities. As it was variously put from the Bench, the worship must be made public; the doors of the place of worship must be open not merely subjectively in the minds and hearts of the worshipping community but objectively in some manifestation of their intention that it should be open; there must be signs to indicate at least that the place is a place of religious worship, perhaps also that acts of such worship are performed there at particular times, and that the public would not be trespassers if they entered but have permission, express or implied, to go there and to attend worship there.”
[39] Stephenson LJ concluded that, even though it may not have been the intention, the effect of what was done and not done by the Brethren in respect of the two halls and the meetings and worship in them was to exclude the public and to make and keep the meeting and worship private and, as the meetings were not public, the land was rateable.
[40] Oliver LJ agreed with Stephenson LJ and Slade LJ agreed with the judgments of both Stephenson LJ and Oliver LJ. Oliver LJ stated at 331:
“In my judgment some open invitation or notification of permission is essential before it can be said that such an activity is a ‘public’ activity or is ‘open to all’.”
[41] The question of what was a place of public worship under town planning legislation was considered in Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525 by the New South Wales Court of Appeal and that decision was affirmed by the High Court: Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145 (“Moslem Alawy”).
[42] The respondent in the appeal to each court was a company limited by guarantee whose members belonged to the Moslem Alawy sect of Islam and resided in the neighbourhood of the premises owned by the respondent. The area had a residential zoning, but premises could be used as a place of public worship with the council’s consent. The sect had a total number of members in New South Wales of about 300 and 65 were members of the respondent. Male members of the sect would use the premises to fulfil their prayer obligations as followers of Islam. The planning ordinance defined “place of public worship” to mean “a church, chapel or other place of public worship or religious instruction or place used for the purpose of religious training”. McHugh and Priestley JJA (Mahoney JA dissenting) held that the expression “place of public worship” meant a place of congregational worship and that access by members of the general public was not a necessary attribute of a place of public worship for the purposes of the ordinance.
[43] McHugh JA analysed Henning, Joyce and Birch and appeared to accept (at 540) that for rating purposes that a place of public worship was a place where members of the public have a right of access. McHugh JA referred (at 541-542) to the fact that the overall purpose of the particular residential zoning was to provide that the designated area was to be used essentially for dwelling houses and that the use of land for a place of public worship was a use which the ordinance deemed to be generally compatible with the primary use of land for dwelling houses. McHugh JA noted (at 542) that nothing in any of the other uses for which land in that residential zoning may be used indicated that access by the public to the land was a necessary attribute and could find nothing in the purpose or context of the particular zoning that indicated that the makers of the ordinance thought that it was desirable that only places of worship to which the public could come as a right should qualify for inclusion in the zone. McHugh JA stated (at 542):
“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.”
[44] McHugh JA considered (at 543) that a further ground for distinguishing the reasoning in Henning was that Lord Pearce was influenced by the fact that the Church of England worshiped with open doors and that it was unlikely in 1833 that that the legislature intended to give other denominations greater rights than those enjoyed by the established church, but Australia has never had an established church.
[45] The approach of the joint judgment in the High Court in Moslem Alawy was to construe the phrase “place of public worship” in the context of the planning ordinance. The court made reference to the rating cases of Friars, Henning, Joyce and Birch and observed (at 150):
“It is strongly arguable that, except to the extent that they do little more than follow previous authority (see, e.g., Joyce), those cases are to be explained either by reference to the special situation of worship in the domestic premises used by the members of a closed religious community or as reflecting an approach that, in a country where (unlike Australia) there is an established religion, it is permissible to look to the practices of the established Church to determine what constitutes public worship: cf. the approach adopted in some of the old charitable trust cases. Even if those cases do correctly establish some more general proposition in rating exemption cases however, they cannot properly be treated as authoritative of the meaning of the phrase ‘place of public worship’ in the Ordinance. The considerations of context and policy which might be relevant in resolving the latent ambiguity of that phrase in an exemption clause in rating legislation are plainly different from those which are relevant in determining the meaning of the phrase in planning legislation. In the context of rating legislation, the desirability of open and avowed rather than clandestine religious meetings has been seen by some (as they were seen by the proponents of (1812) 52 Geo. III c. 155 (see the House of Commons debates of 20 July 1812, pp. 1108-1109) to be relevant to whether the place of meeting should enjoy exemption from liability for rates.”
[46] In another reference to the rating cases on the meaning of “public worship”, the court observed at 151-152 “… the rating cases are, plainly enough, relevant authority on the question of the meaning of the phrase as used in provisions of [the Local Government Act 1990 (NSW)] providing for exemption from rating”.
[47] The court considered (at 152) that the definition of “place of public worship” in the ordinance, read in its context, effectively displaced any presumption that the phrase should be understood as having the meaning attributed to it in the rating cases. The court therefore concluded (at 152) that for the purposes of the ordinance the phrase “place of public worship” must be understood as encompassing a place of congregational, as distinct from private or domestic, worship. The court was satisfied there was sufficient evidence to establish that the primary use of the respondent’s premises was as a place to which the male members of the Alawy sect would 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 and that brought the primary use of the premises within the meaning of “place of public worship” as used in the ordinance.
[48] Although the High Court in Moslem Alawy could be said to have some reservations about the rating cases, those observations were obiter dicta. The decision of the High Court to construe the phrase “place of public worship” in a planning ordinance as meaning congregational worship, without importing a requirement that the place be open to members of the public generally, does not destroy the authority of the rating cases for the purpose of construing the same phrase in the context of rating provisions. A similar observation can be made about McHugh JA’s judgment in Moslem Alawy in the Court of Appeal. Although McHugh JA pointed to arguments that could be used to avoid the application of Henning in Australia in a rating case, McHugh JA’s judgment was not concerned with the meaning of the words “place of public worship” in a rating provision.
[49] As was submitted by Mr Logan of Senior Counsel who appeared with Mr Morzone of Counsel for the respondent, the policy considerations behind the use of the description “place of public worship” in the planning context are different to those in the rating context: the planning context is concerned with the impact of the use of a place for public worship in the particular planning area, but the rating context is concerned with the benevolent purpose of an exemption from payment of rates, because the land is used for public worship.
[50] The most recent Australian appellate decision on what amounts to “public worship” in the context of a rating provision is Joyce. It was suggested by Mr Gibson of Queen’s Counsel on behalf of the applicants that the observations of Hutley JA on whether there was public worship on the evidence in that case were obiter dicta, as the outcome of the case ultimately turned on the separate issue of the status of the Exclusive Brethren as a public charity. The Court of Appeal in Joyce did determine the issue of whether the Brethren’s meeting hall at Ashfield was used for public worship and in a way that is authoritative. It was also suggested that Joyce is deficient because the test of congregational worship was not canvassed. As the majority of the court applied Henning which had rejected the congregational worship test, it is not surprising that the reasons for judgment in Joyce do not refer to the congregational worship test.
[51] The law which should be applied in this matter is that which can be gleaned from Henning which was applied in Joyce. To the extent that some of the statements in Birch can be characterised as imposing an additional requirement of “an invitational test” on the test applied by Lord Pearce in Henning, that should not be applied.
Evidence
[52] Mr Cooper supplemented his affidavits with oral evidence and was extensively cross-examined. He was a most impressive witness. He gave thoughtful, responsive and informative answers. I have no hesitation, whatsoever, in accepting his evidence completely.
[53] Of the respondent’s deponents, Mr Mark Henderling and Mr Anthony Croke were cross-examined. To some extent their evidence was coloured by the hypercritical approach which they exhibited in their contact with the Brethren.
[54] At the commencement of the hearing a view of the Bolan Street meeting room was conducted. What was seen during the course of the view accorded with the material that was before the court in the various affidavits and the oral evidence.
[55] The building containing the meeting room is a one storey building that has the appearance of a large industrial warehouse. The building itself does not have any signs or ornamentation. The car park is sealed and there are a large number of marked car parking spaces. There is perimeter fencing. There is a driveway entrance in Bolan Street. There is also an entrance from Lytton Road. Signs which conform with the wording that was proposed by the Brethren to the respondent for all its meeting rooms in 1989 are found both in Bolan Street and Lytton Road. Each sign is easily read from the footpath. All gates to the property are padlocked, when no service or meeting is in progress.
[56] There is usually a member of the Brethren in attendance at the driveway entrance in Bolan Street before the commencement of a meeting. If a visitor attends who is not known to the person at the gate, that person would usually enquire of the visitor as to his or her reason for attending and would provide the visitor with information or assistance regarding the meeting taking place. The person attending the gate may also assist the visitor to park. When the service commences, the driveway gates are pulled together and latched, but not locked. This is done for security reasons, due to the large number of vehicles that are parked in the car park. Any latecomer is able to open the gate, in order to drive a vehicle into the car park after the service has started. There is a pedestrian gate which is left open while services are in progress and through which entry is also able to be obtained.
[57] There are a number of doors to the building, but there is one set of doors which is clearly the main entry to the building. Those doors face Lytton Road. There is a call button at the main entry doors with a notice “For Assistance Please Use Call Button”. The main entry doors open into a vestibule area where there are a large number of coat/hat racks, toilet facilities, notice boards and the main doors to the meeting room. The meeting room has no windows. It is air-conditioned. The meeting room is like an amphitheatre, provides for descending tiered seating and has a semi-octagonal layout. There are individual microphone stands for about 8 rows of the inner, lower group of seats. The call button monitor is at an aisle seat in the lower group of seats. The doors to the meeting room are locked during meetings. The call button allows a person to notify members of the congregation that he or she is outside, so that a congregation member can attend to the person and admit the person, if that is the request.
[58] With respect to the locking of the doors of the Bolan Street meeting room, Mr Cooper explained (at Transcript p 50):
“We believe and hold that the assembly is a heavenly vessel, that the occasions are solemn and Holy occasions together, and that we do not wish any distractions to exist, we wish to just be together wholly to concentrate on our considerations of Christ and the scriptures and the truth.”
When Mr Cooper was being cross examined, it was suggested to him that the reason for locking the doors was to shut out the intrusion of the secular world, but Mr Cooper emphasised that it was to facilitate the assembly being together free of distraction or possible distractions, but acknowledged there was also an element of security involved, in case someone attended who might be ill-disposed towards the Brethren. Mr Cooper had never himself linked the absence of windows in the meeting room with the principle of separation from evil.
[59] It is the custom, though not prescribed, for the majority of the male members of the Brethren to wear a white shirt on Sunday. At other services there will be a variety of types and colours of shirts worn by the men. Men always wear trousers (and not shorts) to the services. Typical dress of a women member is a long skirt with a blouse and a scarf covering her head.
[60] The male members of the Brethren sit in the lower group of seats. It is the male members who read or preach during services. The female members sit in the outer group of seats. They choose the hymns to be sung and distribute the hymn sheets, but do not join in the discussion or read or pray aloud. There are no set words for services, although there is a pattern to the Brethren’s worship. Mr Cooper accepted the description that the worship was neither formal nor a liturgy.
[61] Mr Cooper set out in paragraph 3.10 of the first affidavit a description of 7 meetings that would be held (and were held in a typical week during the relevant period) at the Bolan Street meeting room. He then described in paragraph 3.11 of the first affidavit the nature of those services.
[62] The Bolan Street meeting room is used for meetings of the Brethren for whom that meeting room is their local or suburban meeting room. More importantly, and this is reflected in the size of the building, it is also used for meetings of the whole of the Brisbane congregation and sometimes it is used for “interchange” involving assemblies from nearby cities such as Ipswich and Toowoomba. On other occasions the interchange works so that the whole of the Brisbane congregation travels to another city such as Toowoomba or Warwick.
[63] The calendar of meetings for the Bolan Street meeting room is worked out in conjunction with the meetings proposed for other suburban meeting rooms and the interchanges. An example of a monthly calendar during the relevant period is found as Ex REC52 to the second affidavit. The calendar appears as a complicated document, because it covers all meetings of the Brethren throughout Brisbane for the month and uses abbreviations. Mr Cooper’s telephone number was one of the numbers shown on the signs for the Bolan Street meeting room. He adopted the practice of giving to an inquirer details of meetings which the inquirer might find suitable. He explained that even if he had posted a copy of the calendar to the inquirer, he would still need to spend time on the telephone explaining it.
[64] In a typical week, there would be the worship known as the Lord’s Supper at 6am on a Sunday at the Bolan Street meeting room. The average attendance would be 40 persons from the local area and the service lasts approximately 1 hour. Mr Cooper explained that it is that service that accords with Holy Communion in other Christian denominations. For that service a table is placed in the centre of the meeting room. Bread and wine are placed on the table. That service is not open to any persons who are not in the fellowship of the Brethren. Mr Cooper explained that the belief of the Brethren is that the sharing of the Lord’s Supper is an intimate occasion with Christ, and the presence of a non-member would detract from the intimacy of the occasion.
[65] The Reading of the Scriptures commences at about 9:30am on a Sunday and the average attendance is about 800 persons. That service lasts for approximately 1 hour. It is immediately followed by the Preaching of the Gospel for which the average attendance is also about 800 persons and that part of the service lasts approximately 30 minutes to 45 minutes. Mr Cooper also explained that there are many Preachings of the Gospel at the other suburban meeting rooms on a Sunday afternoon. Mr Cooper explained that, in his experience, it was likely to be more beneficial for a visitor who was “seeking light or seeking help” to attend a meeting of Preaching of the Gospel.
[66] In a typical week a Prayer Meeting will occur at the Bolan Street room on Monday at 7:30pm. That is attended by about 40 persons and takes less than 1 hour. On Tuesday at 7:30pm there is the Meeting for the Prophetic Ministry. The average attendance at the meeting is 650 persons and it takes approximately 1 hour. It commences and finishes with a hymn and prayer and two of the male members will each read a Scripture and then give a word about it. Reading of the Scriptures takes place again on Wednesday at 7:30pm. That is attended by an average of 800 persons and lasts for approximately 1 hour. On a Saturday approximately 2 out of every 3 weeks the Reading of the Scriptures involving the other assemblies takes place at the Bolan Street meeting room. The size of the congregation can vary for that service from 650 persons to 1,200 persons.
[67] There is also a monthly meeting at the Bolan Street meeting room which is called the Care Meeting (which is also referred to as the Business Meeting). That is for the Brethren to attend to financial matters and any other matters of pastoral and priestly care. The financial matters may include repairs and maintenance of the meeting room, aid to those in need through poverty and the giving of a gift to a person who is chosen to travel to spread the Gospel. Care Meetings are attended only by members of the Brethren.
[68] From time to time there are occasions of a special nature for the consideration of church doctrine and its application that take place at the Bolan Street meeting room. Such occasions occur infrequently and at most annually. The special gatherings are attended by some members of the Brethren only and attendance is by invitation.
[69] On occasions marriages and burial services are also conducted at the Bolan Street meeting room. The Brethren is recognised under the Marriage Act 1961 as one of the religious bodies or organisations that has authority to conduct marriage services. One of the elders is licensed under the Act and has the authority to appoint celebrants. There are one or two celebrants in each assembly in Queensland. It is not usual for there to be visitors to a Brethren wedding, as it is usual for a member to marry within the fellowship. One of the male members of the Brethren has the responsibility for funerals. The body is cared for in the home of the relatives of the deceased, until it moves to the meeting room. Funerals are not advertised in advance. Persons who are not in fellowship with the Brethren, but who wish to pay their respects to the person who has died, would be invited to the home of the relatives of the deceased person. Mr Cooper could not see any reason why such a visitor would not be able to come to the meeting room for the funeral service, if the person expressed a desire to do so.
[70] The respondent’s officers, Mr Henderling and Mr Croke, attended at the Bolan Street meeting room at about 9am on Saturday 19 December 1998. They were investigating the use of the premises in the context of the claim for a rates exemption. At no time did they disclose to any member of the Brethren the true purpose of their visit. Each wore slacks, business shirts and leather shoes. Their visit coincided with the time when members of the Brethren were gathering for a service. They drove their vehicle into the driveway at Bolan Street, where a man who has since been identified as Mr Pringle signalled the car to stop and asked them why they were there. Mr Croke indicated that they would like to attend the service. Mr Pringle told them that it was “just a bible reading today” and that “Normally only people from our company attend this meeting”. Mr Croke asked if there were a problem in their attending and the man said “If you absolutely wanted to hear the Gospel we wouldn’t refuse you”. Mr Croke then said “But you wouldn’t be comfortable if we came to this meeting?”. Mr Pringle replied “I wouldn’t want to keep anyone from the Truth but normally this meeting is only attended by members of the company.” Mr Croke then asked if there were a better time for them to come to a meeting at Bolan Street.
[71] Mr Pringle suggested that they could come to the Lord’s Supper which was on Sunday (which despite the suggestion was not possible because attendance at the Lord’s Supper is limited to the members of the Brethren). He then told them there was not a meeting that Sunday (20 December 1998), as they were meeting elsewhere. On 20 December 1998 part of the congregation went to Warwick and the others went to Nambour. Mr Pringle then suggested that it would be better if they spoke to one of the trustees. He took Mr Croke’s telephone number and said he would get one of the trustees to phone him. Another couple of men joined Mr Pringle. Mr Croke asked when would be a good time for them to come to a meeting. The suggestion was made that Messrs Henderling and Croke attend a preaching at Bulimba Street at 4:30pm the following day. Mr Henderling was asked to give his telephone number which he did. The respondent’s officers then left at 9:15am.
[72] Later that morning Mr Croke telephoned the number of one of the trustees that was shown on the sign at the Bolan Street entrance. That person gave Mr Croke more detailed directions about how to find the Brethren meeting place at Bulimba Street. On 22 December 1998 Mr Henderling telephoned one of the telephone numbers displayed outside the Bolan Street meeting room and spoke to Mr Jensen. He enquired about services leading up to Christmas. Mr Jensen informed him there were no such services. Mr Jensen enquired whether Mr Henderling had a link with the Lord and Mr Henderling has recorded that Mr Jensen stated that “Our services are not intended for people if you are just inquisitive”. Mr Jensen suggested for the first time coming to a Gospel reading.
[73] Messrs Henderling and Croke attended the Bolan Street meeting room at about 9:30am on Sunday 24 January 1999. They parked the car in the car park and were approached by Mr Pringle. Mr Croke asked if they could come along to the service. Mr Pringle explained that the service started soon after 9:30am, that they started with a hymn and a prayer, then had a reading of Scripture for about half an hour that was followed by another hymn and a prayer, and that then three brothers preached followed by another hymn and a prayer.
[74] Another member of the Brethren, Mr Kearley, gave Mr Croke the loan of a Bible. Mr Pringle escorted them to the front entrance of the building and pointed out the trustee with whom Mr Croke had spoken on the telephone who was Mr Jensen. Mr Jensen then escorted Messrs Henderling and Croke into the meeting room. There were four plastic chairs that were behind one of the last rows of tiered seats, near the entrance to the meeting room. Messrs Henderling and Croke sat in the two middle seats and a member of the Brethren sat on each side of them. Although Mr Croke described this in his notes as “The seating arrangement had the effect of flanking Mark Henderling and myself with two males”, I accept Mr Cooper’s explanation that the members of the Brethren sat with Messrs Henderling and Croke to assist them, if necessary, in following the service.
[75] Messrs Henderling and Croke described the order of the service which involved the elements of hymn singing, Scripture reading, discussion and preaching that Mr Pringle had foreshadowed. Throughout the readings and hymns, no explanation was offered by the members of the Brethren seated next to Messrs Henderling and Croke about what was happening, but those members did open their books so that Messrs Henderling and Croke could look on. Mr Cooper explained that it was not customary for those in attendance at services to engage in conversation with those sitting nearby during the service.
[76] At the conclusion of the service, one of the Brethren directed Messrs Henderling and Croke to leave. In the foyer area Messrs Henderling and Croke stood with 6 members, including Mr Jensen and Mr Cooper, and a general discussion then took place about their thoughts on the service and the translation of the Bible by Mr Darby. Mr Croke asked for a list of service times. Mr Jensen advised (as was the case) that the services change all the time. Another member showed Mr Croke the list of service times for the month of January. Mr Cooper also showed him a rectangular card with abbreviations arranged in a table format and explained that the card lists the service times for the month of January and the codes stand for the different halls.
[77] Both Messrs Henderling and Croke had experience in attending services of other Christian denominations. Mr Henderling had been attending the Christian Outreach Centre for about 20 years and described their services as inclusive with participation of those present being encouraged. Mr Henderling described the service he attended at the Bolan Street meeting room as subdued and that he felt uncomfortable throughout the service. He did not feel it was a friendly environment.
[78] The experiences of Messrs Henderling and Croke were consistent with what the Brethren had previously conveyed to the respondent in correspondence as to their practices in respect of visitors. This was also set out in paragraph 3.16 of the first affidavit of Mr Cooper. The Brethren would welcome a visitor to attend any meeting at the Bolan Street meeting room (other than a Care Meeting, the infrequent Special Meeting or the Lord’s Supper) provided the visitor appeared to be well disposed, in the sense that his or her purpose was to participate in or to observe worship, was not obviously looking to make trouble or affected by alcohol and was not inappropriately dressed, in the sense that he or she was dressed in such a way that any person would expect to be attired to attend any meeting of any Christian denomination. There was no requirement limiting visitors to those who were known to the Brethren. There was no requirement that visitors identify themselves with a letter of commendation or by naming somebody they knew in the fellowship. There was no requirement that a visitor be a Christian or an intending Christian. There was no requirement that a visitor be permitted to attend only if a member of the Brethren thought that he or she might be accepted as a member in the future.
[79] It was submitted on behalf of the respondent that on the first occasion that Messrs Henderling and Croke attended at the Bolan Street meeting room, they were effectively turned away and did not gain entry. That submission overlooked that Mr Pringle expressly told them that if they wanted to hear the Gospel, they would not be refused. It was as a result of Mr Croke inquiring about other meetings, that they were given the information about the Preaching of the Gospel that the members of the Brethren thought may be more appropriate for them and were encouraged by the members of the Brethren to attend that meeting. Both Mr Henderling and Mr Croke were given information about meetings of the Brethren when they telephoned Mr Jensen.
[80] It was submitted on behalf of the respondent that on the second occasion that Messrs Henderling and Croke attended, they had to make a concerted effort to enter the Bolan Street meeting room. I reject that characterisation of the events. There was acceptance by Mr Pringle that they had come to attend the service. Because they were visitors, they were accompanied by members of the Brethren throughout the service and members of the Brethren then discussed with Messrs Henderling and Croke their experience of the service. The fact that Messrs Henderling and Croke may not have felt particularly welcome was likely to have been due to the nature of the Brethren’s worship and the natural discomfort arising from the task given to Messrs Henderling and Croke by the respondents.
Conclusion
[81] The respondent accepted that religious worship, according to the tenets of the Brethren, was conducted at the Bolan Street meeting room during the relevant period and that the worship was congregational. The respondent submitted, however, that the worship was not public. It is submitted by the respondent that the assertion that well disposed persons were welcome to attend services at the Bolan Street meeting room should be rejected, because it did not accord with the belief of the Brethren of separation from evil. That is not the conclusion that I draw from Mr Cooper’s evidence. Whilst Mr Cooper acknowledged the fundamental importance of the principle of separation from evil in the beliefs and practices of the Brethren, it was clear from his evidence that such belief did not preclude visitors from attending services (other than the Lord’s Supper). That was borne out by the fact that the respondent’s officers did attend services at the Bolan Street meeting room on 24 January 1999 (particularly when the Brethren had no reason to suspect those officers were attending as part of an investigation of the claim for an exemption from rates) and other instances that Mr Cooper gave in his evidence of attendance at services by visitors.
[82] In considering the evidence, it is relevant that in the current secular times, it is unlikely that the population of Brisbane at large would seek entry to the services of the Brethren. The “relevant” public is likely to be persons who are curious or seeking information about the Brethren or their beliefs, whether as a result of hearing the preaching from a member of the Brethren in the streets of the City, Fortitude Valley or the suburban locations where such preaching is carried out or otherwise, or that category of persons identified by Mr Cooper who is “seeking light or seeking help”. It is also not helpful to draw comparisons with the steps taken by other churches to let the public know about their services, when other churches may have a completely different approach to worship or to seeking to expand their congregation. Whether the services in the Bolan Street meeting room were open to the public during the relevant period cannot be determined in isolation from the practices and beliefs of the Brethren.
[83] During the relevant period there were 2 signs for the Bolan Street meeting room each of which notified the public as to what the building was, ie. the Brethren’s meeting room, and that its purpose was as a place of public religious worship. Those signs gave persons outside the Brethren notification that the public was permitted to attend that building for religious worship with the Brethren. Admittedly, the signs did not set out the worship times. The signs did, however, provide the public with means of determining the times of services by providing the telephone numbers of persons who could be contacted for that purpose and did provide that information. The telephone numbers were for Mr Cooper and Mr Jensen. A member of the public who was passing when members of the Brethren were gathering for a service would also be able to obtain information about services from the member of the Brethren who was in the car park to provide assistance. The experience of the respondent’s officers bears out that persons outside the Brethren could obtain information about and attend the services (other than the Lord’s Supper).
[84] It was submitted by the respondent that neither the Bolan Street meeting room’s architectural features nor its streetscape invite attendance. That ignores the notification on the signs that it is a place of public religious worship. The lack of ornamentation and symbols and the lack of windows accords with the austere nature of the Brethren’s worship and practices. The issue is not whether there were better ways of the Brethren making it clear that its services were open to the public, but whether, in fact, the Bolan Street meeting room was a place of public worship during the relevant period.
[85] The Bolan Street meeting room was open, as people gathered for a service. Consistent with the beliefs and practices of the Brethren, the doors were locked to the meeting room when the service began. The meeting room remained open for late comers and any visitors in the sense that a means of access was provided, after the doors had been locked. The means of access through the use of the call button is consistent with the Brethren endeavouring to achieve an environment within the meeting room that enables those present to worship without distraction. The fact that the door was locked does not, in these circumstances, require the conclusion that the public were discouraged from attending.
[86] Late comers or visitors could still gain access to the Bolan Street meeting room, after the service had began. There was the gate that remained open for foot access and vehicle access was still possible, by opening the driveway gates that were not locked.
[87] It is apparent from the evidence that the Brethren who used the Bolan Street meeting room during the relevant period did not apply the same restrictions on potential visitors, as occurred in Joyce. The questioning of visitors to the Bolan Street meeting room (such as the respondent’s officers) was merely to ascertain that they were well disposed to attending the service. It was not an interrogation of the type that prevailed in Joyce.
[88] It is always a matter of degree as to whether or not the activity which takes place is open to the public or not. It was recognised in Joyce (at 748) that the fact that not all services were open to the public did not necessarily preclude the conclusion that the meeting room was a place of public worship. Because Mr Cooper described the weekly celebration of the Lord’s Supper as the “key occasion upon which the fellowship was based”, the respondent places great weight on the fact that it was not possible for someone other than a member of the Brethren to attend the Lord’s Supper service. The Lord’s Supper was only one of many services held at the Bolan Street meeting room in a typical week during the relevant period. The respondent made a proper concession that some minor private use of the Bolan Street meeting room during the relevant period would not preclude the characterisation of what predominantly took place in the meeting room as public worship, if that were otherwise the case: Mayor, etc of Sale v Bearup (1890) 16 VLR 658, 660.
[89] Although the Lord’s Supper is an important service to members of the Brethren, there were so many other services conducted at the Bolan Street meeting room in a typical week during the relevant period, the preclusion of attendance by the public to that 1 service should not preclude the characterisation of the premises as being used for public worship. Mr Logan of Senior Counsel appeared to concede that the Care Meetings (and the infrequent Special Meetings) were ancillary to the worship conducted at the Bolan Street meeting rooms and therefore did not alter the character of the use of the land. Even if that concession were not made, that reflects what the position is.
[90] The evidence in this matter is very different to that which was adduced in Joyce. I am satisfied that the evidence supports the conclusion that during the relevant period the Bolan Street meeting room was used for public worship, despite the exclusion of the public from the Lord’s Supper, the Care Meetings and the Special Meetings.
[91] The respondent’s delegate’s conclusion that the Bolan Street meeting room was not a place of public worship was contrary to the evidence that had been placed before the delegate. The delegate failed to take into account a number of relevant considerations including the beliefs of the members of the Brethren, the nature and the extent of the services conducted at the Bolan Street meeting room and the opportunities available for members of the public other than the Brethren to attend such services.
[92] It follows that the respondent’s decision should be set aside and the matter referred back to the respondent for further consideration. It is also appropriate to make a declaration that the Bolan Street meeting room was used for public worship during the relevant period. Even though the decision of the respondent’s delegate was made in respect of an application for exemption from rates in the 1996/1997 year, it was common ground between the parties that, if the applicants were successful on this application, they could seek orders in relation to the period from 1 July 1996 until 30 June 2000, as there was no material change in the facts or the relevant budget resolutions in that period.
[93] One matter which the respondent’s delegate did not consider was the effect of the word “entirely” in the resolution granting the exemption from rates.
[94] During submissions on the hearing of this application, it was raised on behalf of the respondent that if a finding were made that the Bolan Street meeting room was used for public worship, it could not be concluded that the Bolan Street meeting room was used “entirely” for the purpose of public worship. This was on the basis that neither the Lord’s Supper nor the Care Meetings were open to the public.
[95] The reliance by the respondent on the word “entirely” did not become apparent until submissions were prepared. Mr Gibson of Queen’s Counsel foreshadowed that if the applicants had been aware that the respondent placed significance on the word “entirely” in the resolution, there may have been other evidence explored.
[96] All that it is appropriate for me to do at this stage is to make observations on the arguments that were addressed as to the construction of “Any land …. having a building thereon and used entirely for public worship”.
[97] The word “entirely” qualifies the use of the land. It suggests that the whole of the land, rather than some part of it must be used for public worship. That is consistent with the further beneficial qualification in the resolution found in the words “whether or not that land has other buildings on it that are utilised in conjunction with the church”.
[98] There was no suggestion in the evidence that the Brethren had different uses for different parts of the land. It was accepted that the car park was ancillary to the use of the meeting room for the worship of the Brethren. There was no suggestion in the evidence that the Lord’s Supper and Care Meetings took place in a discrete part of the meeting room that enabled it to be treated as a separate piece of the land being used privately.
Orders
[99] The following orders should be made:
1. The decision of the respondent not to include the applicants’ land situated at 91 Lytton Road, Bulimba in the schedule of exempt properties that was conveyed by the respondent’s letter dated 2 June 2000 is set aside.
2. The applicants’ application for exemption from rates is referred to the respondent for further consideration, according to law.
3. It is declared that during the period from 1 July 1996 to 30 June 2000 the applicants used the land situated at 91 Lytton Road, Bulimba for public worship.
[100] Subject to hearing any submissions to the contrary, I am inclined to make an order for costs in favour of the applicants.