Melbourne, 29 June: Melbourne Indian community is familiar with Datta Yoga Centre (or Datta Yoga Centre Australia Pty Ltd) (“DYC”) which formally came into existence in 2007. The group follows Sadguru Sri Ganapathy Sachchidananda Swamiji, as its spiritual guru (head).
DYC’s objective according to the group’s website is of spreading the benefits of Healing Music & Kriya Yoga in Australia. The website says the group is a “Non-Profit” Organisation and its objectives are achieved by involvement of volunteers & devotees who are working towards Sri Swamiji’s mission.
Although DYC has its registered address in Wantirna, since February 1, 2016, it has been the owner of land at 33–49 McLeans Road, Little River, Victoria.
BT understands DYC paid $$1,050,000 for the property which was sold as offering “perfect country lifestyle with 5 minute access to the freeway, a brand new 32 square residence on 17 acres, large barn with living quarters, work shop, sealed road frontage, town water and in the heart of the Little River township”.
The agents used the following description as sales pitch: “… smell the fresh country air, wake up to the sound of the distant crows passing by and have a peaceful evening conversation as the sun sets beyond the You Yangs…”.
Rich in country lifestyle yet so close to Melbourne and Geelong, with 5 minute access to the freeway and only a short drive to all major services including rail access, this property would seem only ideal for a Yoga Centre project.
Or so it would have seemed to DYC when they decided to purchase it in late 2015.
And one would assume the locals in the area should have nothing against the centre.
BT understands after settling the property on February 1, 2016, DYC put together a team of experts and plans to apply (in July 2016) to the council to use the property as temple – to use it as a place of worship and to practice yoga.
While the application was before the council (Wyndham Council), DYC’s spiritual head Sadguru Sri Ganapathy Sachchidananda Swamiji visited Australia in February 2017. Hoping for the permit to come through in time, having been waiting since July 2016, DYC wanted to give its spiritual head a tour of the property and perhaps formally open the temple – with the DYC member attending their ‘new home’.
Or so they thought.
As it turns out, their gatherings at the festival(s) celebrated on site raised discomfort, if not ire, of some locals (neighbours) and the application process hit a road block.
The DYC property is in the Green Wedge Zone under the Wyndham Planning Scheme and abuts properties used for residential and agricultural purposes. Its permit application sought a permit from the Council to use and develop the site as a place of worship. This would involve:
- conversion of an existing dwelling to a place of worship;
- the division of an existing outbuilding into meeting rooms;
- the construction of a new outbuilding to be used for yoga and meditation; and
- the construction of a car park for 18 vehicles.
The applicant proposed a maximum of 60 persons on the site at any one time.
Coinciding with the visit of their Sadguru and big festivity on site (Feb 8-12), sadly the Council on 9 February 2017 refused the permit on various grounds among others saying the proposal is contrary to:
- the objectives of Clause 11.04-7 (Green Wedge);
- Clause 14.01-1 (Protection of agricultural land); and
- Clause 15.01-5 (Cultural identity and neighbourhood character) of the Wyndham Planning Scheme.
There were some other technical breaches also added to the refusal.
A perplexed DYC went to VCAT and sought review of the Council decision. VCAT heard the matter in Sept 2017.
Prior to the Tribunal hearing, the Council prepared draft permit conditions, which included important safeguards intended to achieve planning objectives or standards, or to limit or define use or development, obviate or minimise noise, traffic, road use, parking and other impacts on local residents.
The Council proposed that a possible permit should contain those conditions, if it were to be granted.
Applicants usually satisfy the Tribunal that there would be no harm or deterioration, if not a net community benefit, occasioned by the proposed use and development.
The conditions, among others included:
Except with the prior written consent of the Responsible Authority, the use permitted by this permit must operate only between the following times (on any day):
7.00am – 12.00 midday (opens at 7.30am for morning prayers and worshipping)
5.00pm – 9.00pm
The number of persons attending the premises, at any one time, must not exceed 60 persons, or 90 persons for a maximum of 28 days per year, except with the prior written consent of the Responsible Authority.
Delivery and waste collection times should be restricted to 7.00am – 8.00am Monday to Saturday and 9.00am – 8.00pm Sunday and Public Holidays, in accordance with the Environmental Protection Authorities Noise Control Guidelines Publication 1254, October 2008.
The fight at VCAT
At the VCAT hearing, both the DYC and the Council were represented by town planners.
DYC made submissions and led evidence from a town planner, traffic engineer and an acoustics engineer.
The Council and four resident objectors Bryan Jobling, Karen Fairchild, Keith Pountney and Martin Smith also appeared and made submissions.
- There was no controversy as to the applicable provisions of the planning scheme to the proposed use and development.
- There was no dispute as to the policy framework or the applicable policy guidelines under the planning scheme.
- There was no issue of law or interpretation raised by any party for decision by the Tribunal.
- All parties focussed their submissions on the planning merits of the proposal.
The VCAT decision
The Tribunal was called on to decide whether a permit should be granted and, if so, what conditions should apply in order to protect residents from loss of amenity caused by over-intensive use or development of land.
The Tribunal noted four key issues in assessing the applicant’s permit application:
- Would the use be consistent with the purposes of the Green Wedge Zone and planning policy?
- Does the development respond to the site’s features, context and planning policy?
- Would the use and development adversely affect the amenity of neighbouring properties?
- Would the use and development generate unacceptable traffic?
In some respects, DYC’s activities or festivities while the review of their permit application was pending before VCAT became their own “undoing”.
Their experts had put together some projections in the permit application on the number of devotees attending (maximum of 60 on site at a time, with 18 cars parked on site), vehicles using the country roads to arrive on site and the festivities time frames and prayer sessions (morning 7.30am-12.00 and evening 5.00-9.00pm), which according to the neighbours objectors were vastly different in reality.
One neighbour objector, Bryan Jobling told VCAT that on more than one occasion he had seen 40 & 60 cars and suggested that makes, at an average of 3 persons/car a gathering of 120 to 180 which is two or three times the proposed numbers.
He complained of a food truck with external noisy generator on site well past 9.00pm cut-off time on one festival, with congregants continuing to have conversations up until 11.00pm – which according to the objectors – was unacceptable.
VCAT also considered the definition of Green Wedge Zone and all other specific categorizations and clauses enlisted by the Council, relevant to the permit application for the site.
VCAT decided that no permit should be issued for the use or development of the site, and upheld the Council’s decision.
DYC lodged an appeal in the Supreme Court of Victoria against the Council and VCAT decision affirming the refusal of permit.
The matter was heard in May and the decision delivered on 29 June confirmed the decision of VCAT and Council. As a result, DYC, as of today, does not have the required permit to develop the site into a temple and yoga centre.
The appeal to the Supreme Court failed because the Court found VCAT had not made any errors of law. It said that viewing all the evidence VCAT had before it, it made the decision which it could make and thus declined to reverse the refusal of permit.
BT believes the case to be a little mix of ‘own goal’ and Council ‘stuff-up’.
DYC has got to go back to the drawing boards, ‘reinvent’ the plan to suit the zoning of its proposed new home and re-submit the application which should go through.
On another note, however, Indian community should be curious to know on possibly what basis the Council’s refusal said that the permit would breach (or be against) the “Cultural identity and neighbourhood character of the Wyndham Planning Scheme?”
In today’s multicultural Australia – it is ignominious that a Council in Melbourne’s West claims that setting up a Yoga Centre in nature’s lap and tranquillity filled with pure serenity may breach the Cultural Identity and Neighbourhood character?
Needless to add – the Yoga Centre would welcome all Australians, not just Australians of Indian descent.
The other bizarre claim in the documents was that the proposed development would deliver “no social or economic benefit” to the area.
There are many lessons for DYC and other community groups in this costly legal fight. – DM
(Pictures: DYC Australia Facebook)
Note: DYC did not respond to our request for comment on the Court decision.