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A Litany of Planning Errors —Bendigo Mosque

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9 Rowena Street, Bendigo East

This is the original set of Planning Concerns served on the Council one week prior to the 18th June 2014 Public Meeting where they passed the Planning Application for proposed Bendigo mosque.

The Planning Application granted by the Council that night had expired and was fraudulent. The Environmental Report was false, produced without officers setting foot on the property. Both of these facts should have been enough to stop the Planning Application process. Yet $200,000 spent on legal fees and put to VCAT, Supreme and High Courts, somehow found this not to be a problem.
 
The Australian Community now has legal precedents that expired, illegal and fraudulent planning applications are allowable and Government Departments can write Environmental reports without viewing a property.
 
We don’t need to be legal experts to know this is WRONG.
It is a good indicator that our present legal system needs an overhaul. Justice needs to be seen to be done. It wasn’t here.
 
The following is what was served on the Bendigo Council on the 12th of June a week before the meeting as a Letter of Demand. (The lack of attendance to the property for the Environmental Report was uncovered prior to VCAT hearing.)

Planning Permit: 9 Rowena Street —DP/937/2013

 1. False Declaration of Land Ownership

Australian Islamic Mission seeking a Planning Permit as “landowners” when they were not the owners of the land. They misrepresented themselves on the planning application.

(This application was put up by an experienced Town Planner working for an ex Mayor of Bendigo (Tompkinson Group.)

 

False declaration of Landowner

Permit application original

 

THE LEGISLATION:
48 What if the applicant is not the owner?
(1) If the applicant is not the owner of the land for
which the permit is needed, an application must—
(a) be signed by the owner of the land; or
(b) include a declaration by the applicant that the
applicant has notified the owner about the
application.
(2) A person must not obtain or attempt to obtain a
permit by wilfully making or causing to be made
any false representation or declaration either
orally or in writing. Penalty: 60 penalty units.

 

Bendigo Council Jan 2014 advised AIM that they were not the holders of the land. In March 11 2014 (the start of advertising) the Town Planner then put in a declaration of the owner being notified and the application was amended.

Permit application 2nd application

Deposit paid May 2014.

 

OBJECT: to this Planning Permit Applications based on false declarations to Council.

THEN THERE ARE THESE ISSUES:

1. That the application of November 25th 2013 is a fraudulent application pursuant to section 48 of the Planning and Environment Act Victoria 1987.

a)   That the application was signed by the applicant as a true and correct record.

b)   That the application of November 25th 2013 stated that the ‘Australian Islamic Mission’ was the owner of the land in relation to application number DP/937/2013.

c)   That it is a known fact that the ‘Australian Islamic Mission’ is not, and has never been, the lawful owner of land that is listed in the planning application.

d)   That this application was submitted to the City of Greater Bendigo as a true and correct application.

e)   That the applicant, Tomkinson Group, being experienced in matters of planning applications, did submit a fraudulent application pursuant to section 48 of the Planning and Environment Act Victoria 1987.

f)    That the applicant, Tomkinson Group, must be deemed to have constructive knowledge of the Planning and Environment Act Victoria 1987.

g)   That the applicant, Tomkinson Group, did, with knowledge of the Planning and Environment Act Victoria 1987, make a fraudulent application to the City of Greater Bendigo.

h)   That the applicant, Tomkinson Group, made no effort prior to being contacted by the City of Greater Bendigo on December 19th 2013 to alter the fraudulently submitted document.

i)     That under section 48 of the Planning and Environment Act it is a punishable offence to submit a fraudulent planning application.

j)     That under section 48 of the Planning and Environment Act it does not give options in regard to a penalty being given to the applicant.

k)   That on March 11th 2014 an amended application was submitted to the City of Greater Bendigo by the applicant, the Tomkinson Group.

l)     That the original application dated 25th November 2013 was fraudulent so therefore is not capable of being amended and must be a completely new application in its entirety.

m)That it would appear that the City of Greater Bendigo has failed to enforce section 48 of the Planning and Environment Act against the applicant.

  1. That in relation to page 9, section 3.5 of the Cardno Traffic and Transport Assessment report, claims information was previously provided to the operation of ‘Islamic Prayer Halls’

a)   that no supporting information has been supplied or provided.

  1. Figures supplied in the Cardno Traffic and Transport Assessment report, referring to the Australian Bureau of Statistics,

a)   That figures relating to the average size of Bendigo families used in the report are misleading and misrepresent the facts in relation to the planning permit application.

b)   That the ABS statistics for the average household size in Bendigo of 2.5 people is based primarily on a Christian population and does not take into account the difference of fertility rates of Muslim families.

c)   That for example, based on latest ABS figures for Punchbowl NSW which has a 29% Muslim population the average Muslin household consist of 6.73 people.

  1. Information suppliedto the Cardno Traffic and Transport Assessment report by the applicant makes claim of prayer times but no source is supplied for these figures.

a)   Based on figures supplied, midday Friday prayer will consist of an estimate of 250 people attending but the report states that there will be only 75 vehicles using the car park. Given prayers consists mainly of males as based on the Tomkinson report then there would not be sufficient car parking.

b)   That current ABS statistics show that there is only a total of 250 Muslims living in the Bendigo area.

  1. That information supplied on the Cardno Traffic and Transport Assessment report, for the indoor sport centre, there is no supporting evidence for the number of people using this facility.
  2. That the application does not state clearly that the ‘the sports hall’ will not be used as a prayer hall.

a)   That given there is no statement in the Application that the sports hall will not be used as a prayer hall then it must be considered that the sports hall could or may be used as a prayer hall thus making both the application and the Cardno traffic report un reliable

  1. That the Cardno report in table 3-2, anticipated prayer times, does not state a start and finish time for daily prayers.

a)   That this makes the Cardno traffic report redundant as no starting times for prayer are stated.

b)   That the report cannot be deemed reliable based on this failure in their report to clearly list both starting and finishing times for prayer.

  1. That information in table 4.1 of the Cardno Traffic and Transport Assessment report uses information based on the Whittlesea planning scheme yet no relevant documentation exists that.

a)   This has any relevant connection to the current proposed planning permit.

b)   Does not state what the Whittlesea planning scheme relates to.

c)   Does not include any documented evidence.

d)   Does not include any information or evidence from similar buildings around Australia.

  1. That in the planning file was an unmarked ‘CD”

a)   That the ‘CD’ was not marked and had no indication of its contents.

b)   That no facilities were supplied by the City of Greater Bendigo at their offices for members of the public to view the contents of said ‘CD’

c)   That it has been discovered that there was information contained within that ‘CD’ directly related to and containing relevant information regarding the planning application.

d)   That the information on the ‘CD’ was information directly relating to the permit application therefore the City of Greater Bendigo failed to adhere to section 51 of the Planning and Environment Act Victoria 1987

e)   That the City of Greater Bendigo therefore is in breach of section 51 of the Planning and Environment Act Victoria 1987.

  1. That on page 8 of the Tomkinson Application it states that activities within the Mosque will be strictly in accordance with the Islamic regulations.

a)   No documented evidence of those regulations have been supplied with the application

b)   That, the statement presumes that the Council and the people of Bendigo know of, understand, and comprehend those regulations.

c)   That it is claimed in the application that nothing within those regulations contravene Local or State laws but no substantive evidence has been supplied to support that claim.

  1. That on page 10, paragraph 4, of the Tomkinson Application it states that the nearest residence is 55 meters, wall to wall, from the proposed Mosque.

a)   That given the level of proposed attendance to the Mosque there are no evidential facts that the people living in that residence will be able to continue the enjoyment of their home and property as they are lawfully entitled to do.

b)   That given that Mosques generally use loud speakers for their call to prayer at times that in some cases are very early morning therefore would breach the EPA laws.

c)   There are no known conditions in the application, or currently being proposed by Council that would ensure the continued enjoyment of their home and their property.

  1. That on page 10, paragraph 4, of the Tomkinson Application it is stated that the proposed mosque location is situated in isolation and has a buffer zone of industrial activities between the residential communities.

a)   That this statement is misleading as industrial zone 3, ‘IN3Z’, may be used for many and varied uses under the Zoning Act.

b)   That this statement is misleading as there are domestic residences on two sides of the proposed site.

c)   That one of those residential boundaries is only 21.36 metres from the mosque building.

  1. That on Page 11 of the Tomkinson Application it states there will be no adverse impact on the nearest residential neighbourhood and on the environment.

a)   That this statement is misleading as no engineering report on the site has been supplied.

b)   That the claim that an engineering report would be supplied after the application is approved would breach standard and accepted practice.

c)   That this statement is misleading as no soil report has been supplied with the application.

d)   That the claim of no adverse impact on the environment is misleading as no soil tests have been carried out.

e)   That nothing in the planning application file would indicate that the planning department or the City of Greater Bendigo Councillors have done an onsite inspection to verify the claims made in the application.

f)    That given the obvious inconsistencies in the application, and the original application being fraudulent pursuant to section 48 of the Planning and Environment Act Victoria 1987, it should be incumbent on the council to carry out an onsite inspection.

  1. That it is stated that a preliminary soil test can be undertaken if requested by the responsible authority.

a)   This statement clearly shows that no soil test has so far been undertaken

b)   That given that this land is zoned IN3Z there should be an absolute need for a soil test.

c)   That given extensive mining has taken place in this area of Bendigo that a soil test should be mandatory.

  1. That on page 11, it is stated that approximately 6 Eucalypts cannot be avoided for removal from the site.

a)   That in the Tomkinson application a photo of a sparsely treed area is used as evidence for their claim of no adverse effect to the environment.

b)   That the picture supplied with the application was purposefully used to mislead and deceive those people inspecting the planning application file.

c)   That in fact the picture supplied in the Tomkinson application would appear to show only part of the corner of the proposed site and in fact shows the clear area where the proposed ring road will be constructed.

d)   This statement is misleading as the proposed site has a moderate density of trees.

e)   That as the construction of buildings, car parks, and roads will take up approximately 50% of the site the statement above is false and misleading.

f)    That an application for a permit to remove vegetation as per the biodiversity report has not been available as part of the planning application so therefore breaches section 51 of the Planning and Environment Act Victoria 1987.

  1. That on page 13 of the Tomkinson Application it states that the majority of the members of the Muslim community have already chosen Bendigo as their permanent place of living.

a)   That according to the ABS most current census, the total Muslim population in Bendigo is 250 people.

b)   That given the Latrobe University has many foreign and non-local students a significant portion of those listing Islam as their faith in the ABS census must be considered transient.

c)   That even if none of the persons on the ABS Census were transient then based on the figures quoting numbers of persons per household, and based on the example used previously regarding Muslim households in Punchbowl NSW then there would be 37 families.

d)   That based on the most recent ABS census, the total number of Muslims living in Bendigo constitutes .0018% of the population.

e)   That these figures, and based on the quote above regarding the Tomkinson Application the requirement for such a large Mosque cannot be substantiated.

f)    That it must be therefore considered that once the proposed Mosque is finished there are plans for many more Muslim families to locate in the Bendigo region.

g)   That the Tomkinson Application is misleading as it gives the impression that the Mosque is only for the current Muslim community.

h)   That the Tomkinson Application for such a substantial Mosque given their statement regarding local families then the report fails to fully disclose the future intensions of the Muslim community to encourage further Muslim immigration into Bendigo.

  1. That section ‘12’, Subsection ‘2c’ and section ‘60’ subsection ‘1A(a)’  clearly state that the council may take into account the social and economic effects of any planning permit application.

a)   Therefore the Act includes social effects as part of the planning process.

b)   That the Council is with substantive knowledge that there are many residents in the Bendigo electorate that have concerns regarding social issues and the impact of the proposed mosque.

c)   That the Council is with substantive knowledge that there are many residents in the Bendigo electorate that have concerns regarding social issues and the impact of the belief and practice of Islam.

d)   That the Council is with substantive knowledge that many residents in the Bendigo electorate have clearly made to the Council and the planning department there social concerns regarding the proposed Mosque being built.

e)   That many people in the Bendigo electorate have concerns with the predicted increase in the number of Muslins that will locate themselves in Bendigo as a result of the Mosque.

f)    That it is clearly obvious from the responses received from many members of the community that the Council must acknowledge and consider their responsibilities under sections 12 and 60 of the Planning and Environment Act Victoria 1987.

  1. That on page 6 of the Cardno report it states that the land use to the North of the sight is predominately residential whilst land to the South of the site is generally industrial.

a)   That once the proposed ring road is completed that the site of the proposed Mosque will be on the only land in that area that will be zoned ‘IN3Z’

b)   That once the proposed ring road is completed the proposed mosque will be the only IN3Z land in an area that is zoned low density residential.

c)   That by the Council granting the proposed planning application then the proposed Mosque will effectively be located in a low density residential zone.

d)   That by not rezoning the land for the proposed Mosque site from industrial to low density residential zoning prior to the planning application being granted the regulations for the Construction and use of the Mosque site will not be as stringent as it would be if the planning application were to be made for low density residential.

e)   That therefore the result of the current application being approved, the effect will be a Mosque in a residential zone.

f)    That the City of Greater Bendigo Council and planning department are with substantive knowledge of

1)   The facts that the planning requirements for the proposed Mosque will be less stringent in IN3Z.

2)   That the proposed Mosque will be effectively in a residential zone but will only be required to comply with less stringent planning requirements being the only land that will effectively be in IN3Z.

3)   That the proposed Mosque will be regulated by laws and regulations for IN3Z but will effectively be in a residential zone.

4)   That given the proposed Mosque being in a low density residential area the traffic infrastructure is suited only to low density residential.

5)   That given that the proposed prayer hall of the Mosque would, in practical terms have the ability to accommodate approximately 500 people then the road infrastructure would not be capable of this level of traffic in a safe manner.

6)   That given that the proposed prayer hall of the Mosque would, in practical terms have the ability to accommodate approximately 500 people then the planned amount of parking on site would not be sufficient.

7)   That in a paper on thermal optimization of Mosques in Saudi Arabia, by Mohammad S. Al-Homoud-phD. Architectural Engineering department King Fahd University of petroleum and minerals, Bahrain, 31261, Saudia Arabia, States occupancy 8ft2/ person (0.73 m2/person, 1.2m x0.6m).

1)   That given the above paper and the proposed prayer hall being 361m2 that would enable occupancy during prayer times of 502 people.

2)   That part of the proposed Mosque there is to be a sports hall of 719m2 that could be used as an alternate prayer hall.

3)   That if this sports hall was to be used as an alternate prayer hall then given the calculations by Mohammad S. Al-Homoud-PhD the sports hall would hold 1,000 people in prayer.

4)   That there is no guarantee in place that this sports hall would not be used as a prayer hall.

5)   That if this sports hall were to be used as a prayer hall then the road infrastructure would not be sufficient to handle the volume of traffic.

6)   That if this sports hall were to be used as a prayer hall then there would not be sufficient parking on site.

7)   That given the calculations by Mohammad S. Al-Homoud-PhD even the proposed prayer hall which could accommodate 502 people then there would be insufficient parking on site.

  1. That as the proposed Mosque will not be a rateable property and given the possibility of an influx of people into Bendigo because of the proposed building of the Mosque the road infrastructure may have to be substantially upgraded. This will be an extra cost burden on the existing Bendigo ratepayers without the Mosque having to contribute to the roads infrastructure needed to accommodate this extra traffic.
  2. That in the proposed Mosque planning application there will be a Minaret and that it is stated in the application that it is just a ‘symbolic’ structure.

1)   There are no foundational plans for the construction of the Minaret.

2)   There are no plans showing the internal structure of the Minaret.

  1. Correspondence from Tomkinson contained in the planning file states that further extensions are being proposed for the proposed Mosque.

a)   That these planned ancillary buildings are not in the planning permit application therefore are in breach of section 51 of the Planning and Environment act Victoria 1987.

b)   That there has been mention of a school facility being constructed on the proposed Mosque site.

1)   The building of a school facility is not in the planning application.

2)   That the school building and other ancillary building would need to be built on the grounds thus reducing or eliminating the proposed buffer zones as claimed will exist in the proposed planning application.

Council just can’t make a valid decision based on flawed data like this.