The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A LOCAL council has banned the construction of a synagogue in Bondi because it could be a terrorist target, in a shock move that religious leaders say has caved in to Islamic extremism and created a dangerous precedent.
The decision, which has rocked the longstanding Jewish community in the iconic suburb, was upheld in court this week as the nation reeled from the alleged airline terror threat and debate raged over increased security measures at airports and other public places.
The council contended that "the site is not suitable for the proposed synagogue use as the Preliminary Threat and Risk Analysis relied on by the Applicant raises concerns as to the safety and security of future users of the Synagogue, nearby residents, motorists and pedestrians in Wellington Street," and yesterday's court decision (Friends of Refugees of Eastern Europe v. Waverley Council) agreed that there was a sufficient "factual basis" for the council's position. And once such a threat "to users and the community" was shown, then "the guidelines can be used to justify modification of the development to minimise crime risk, or, refusal of the development on the grounds that crime risk cannot be appropriately minimised."
Moreover, the developer (here, the synagogue) bears the burden of showing a "specific risk assessment for the site," and thus specifically justifying why the specific risk reduction measures that the synagogue proposed "respond appropriately to that risk." (Here, the synagogue suggested "using landscaping to soften building form and minimize impact of security devices.") The court concluded that the synagogue hadn't done so. And the court also said that "it is also a valid question to ask whether the raised the [crime prevention through environmental design process] is the appropriate means to address a potential terrorist threat." "It would seem that a more sophisticated risk assessment process could be required for matters such as a potential terrorist threat."
So while in theory this might leave open the possibility that a synagogue might be built—with much delay and expense—if measures that "minimise [terrorism] risk" are proposed to the court's satisfaction, in practice it's not clear that any such measures would suffice. (Recall that one possibility is "refusal of the development on the grounds that crime risk cannot be appropriately minimised.") The risk to "nearby residents, motorists and pedestrians" from, say, a truck bomb is hard to eliminate. Perhaps placing a synagogue in a rural area that is far from neighbors would suffice—but that would banish synagogues from the neighborhoods where Jews actually live.
In any event, the decision imposes a burden on synagogues that other houses of worship (churches, mosques, Buddhist temples) do not have to face. It imposes the burden precisely because synagogues are already burdened by the threat of terrorist attack, thus piling governmental repression on private repression. By giving a "bomber's veto"—a version of the heckler's veto, in which the police shut down a speaker because thugs are threatening violence against him—to the Islamic State and its supporters, it encourages them. ("Look, brother: Already our fight for Islam and against its enemies has led to vile synagogues being blocked even in faraway Australia!") And it encourages would-be copycats of other ideologies, who learn that they can shut down organization X by sufficiently threatening X that the government signs up to help shut X down.
Thanks to Peter Wizenberg for the pointer.
UPDATE: I got the following statement in response from the Waverley Council:
The Waverley community is enriched by our diverse faiths and places of worship including our synagogues. Waverley Council has a strong history of partnerships with the Jewish community and will continue to work closely with the Jewish community and Jewish organisations.
FREE (Friends of Refugees of Eastern Europe) lodged the original DA with Council last year. During the assessment process, FREE chose to take the decision making power out of the hands of Council and instead sought a ruling from the Land and Environment Court.
It was the Land and Environment Court's decision to dismiss the appeal put forward by the applicant and refuse the development application.
As part of their development application, FREE themselves chose to submit a Preliminary Threat & Risk Analysis report prepared by a counter-terrorism consultant. This report outlined in some detail a range of risks and threats to the synagogue, its attendees and also to neighbouring properties and passersby.
Council did not oppose the evidence put forward in FREE's report. FREE's report acknowledged that the risks to neighbouring properties and passersby had not been addressed in the DA because protection measures were focused only on people inside the building. FREE's counter-terrorism consultant gave expert evidence to the Court during proceedings and Waverley Council did not challenge his evidence in any way.
Council presented a number of matters for contention. One of these matters was that the security risks identified by FREE's own report had not yet been fully addressed. Local residents also submitted concerns on this issue.
The Land & Environment Court found that the potential risks outlined by the applicant's own report were not addressed appropriately. In particular, the risks to neighbours and passersby were not sufficiently addressed. The Court found that it was clearly the applicant's responsibility to address these risks. For this reason, the Court refused the appeal.
Waverley Council wishes to reassure the community that Waverley Council did not refuse this development application. It was a decision of the Land and Environment Court.
Council confirms that a synagogue is a permitted use at this location.
I then e-mailed back to ask them how this fit with the court opinion, which said that "The council maintains that the application should be refused for the following reasons," including that "the site is unsuitable for a synagogue because of the potential risk to users and other members of the general public." Likewise, the court quoted the council's Statement of Facts and Contentions as stating that "The proposed development should be refused as the site is not suitable for the proposed synagogue use as the Preliminary Threat and Risk Analysis relied on by the Applicant raises concerns as to the safety and security of future users of the Synagogue, nearby residents, motorists and pedestrians in Wellington Street and the physical measures proposed to deal with the identified threats will have an unacceptable impact on the streetscape and adjoining properties." And the court wrote, "This is an appeal against the refusal of Development Application No. DA 134/2016," which suggests that there was indeed a refusal by the Council, and FREE was appealing that refusal.
The Council then passed along a follow-up response, which I'm also glad to post:
In terms of process—the development application was submitted to Waverley Council last year. Under the relevant planning law here, if the application is not determined by a council within 40 days, the application can be treated as a 'deemed refusal' and the applicant can choose to appeal the deemed refusal to the Land and Environment Court even though Council hasn't actually made a decision. That's what the applicant chose to do, almost immediately the 40 day deadline was reached.
Council then was required to submit documentation to the court and as part of that, Council's legal counsel submitted 17 matters which required resolution, and as you saw the judgement quoted from some of this document. One of the 17 matters was related to security. Council argued that for a number of these matters (including the security one), that if these matters couldn't be resolved that the application should be refused. Progress had actually been made between the parties on a lot of the matters but the court judgement then came down and focused particularly on the security matter—it didn't address waste management issues raised by Council for instance.
In terms of the security matter itself, I've attached here the report provided by the applicant's counterterrorism expert. This report was part of the development application and was public. Perhaps you can understand that neighbouring residents were concerned at the identification of threats like car bombs and suicide bombers, especially as the report itself recognised that the development application did not address the risks to people outside the synagogue. Many local residents made their own submissions to the Court in relation to this. As you know, the Court judgement suggested a more sophisticated risk assessment, and also suggested that the existing report did not assess risks for the specific site.
Of course it is terrible that a synagogue, or anyone, has to consider such security risks and threats. But as the synagogue's own report identified the security risks and threats it was not possible for Council or the Court to ignore them, and State planning guidelines require consent authorities to ensure that developments provide safety and security.
And just to be clear—a synagogue is a permitted use on this site under our planning controls. The applicant can resubmit the development application (with, for instance, a more detailed and specific risk assessment). In this case the application will be considered afresh by Council on its merits.
Finally, as broader context, I am not sure if you are familiar with the Waverley area in Sydney. In our population of about 73,000 residents, 15% are Jewish people. We currently have four synagogues within our 9 square kilometre area, three further synagogues immediately adjacent to us and of course multiple Jewish schools. Although the elected Councillors of Waverley have not voted on or determined this development application, I would mention that there are three Jewish Councillors in our elected Council of twelve. We are lucky to have fantastic Jewish organisations and services operating in Waverley. The Jewish community is part of what makes Waverley such a great place. Waverley Council will continue its long history of partnership with the Jewish community and Jewish programs and services.
I don't think that any of this is inconsistent with the original post, including with the material that I quoted from news.com.au. The relevant zoning law seems to require the council to give a decision in 40 days, or have the application deemed refused. The council, in part because of a worry about "risks to people outside the synagogue" posed by terrorist attacks, didn't give a decision within the 40 days—and then when the applicant appealed, the council argued that if the terrorism risk issue "couldn't be resolved that the application should be refused." But in any event, I'm pleased to be able to pass along the Council's response.