By Mareike Riedel
Max Planck Institute for Social Anthropology
In May 2015 the Australian Jewish News reported proudly that Sydney’s second eruv, located in the Sydney North Shore neighbourhood of St Ives, had finally became functional. The eruv is a symbolic, almost invisible enclosure marked by existing demarcations and thin wires that facilitates Shabbat observance by virtually extending the private realm to the public space. During Shabbat, the Jewish day of rest, the transport of objects outside of the domestic sphere is prohibited. This includes the pushing of prams, the carrying of keys or the use of a wheelchair. An eruv allows these things to be carried outside in public. Eruvin (Aramaic plural for eruv; modern Hebrew eruvim) exist in several cities in Australia (in Melbourne, Perth and in Sydney’s eastern suburbs), but also in Europe, North America, South Africa, and Israel. The establishment of Sydney’s second eruv marked the end of the almost decade-long struggle of the local Orthodox Jewish community to install this religious structure against the fierce opposition of a significant number of local residents, who portrayed the eruv as “out of place.”
Urban space has become a contested arena where diverging concepts of space, boundaries, and community identity are constantly contested and redrawn. Majorities and minorities contend for the scarce resource of space and the power to leave their distinct footprint in the urban landscape – often by means of law. “The city, a complex type of place has once again become a lens through which to examine major processes that unsettle existing arrangements,” observes Saskia Sassen in light of globalisation, migration, and increasing diversity. Despite its propensity to reinforce the anonymity of its inhabitants, the city simultaneously reinforces and exposes difference and otherness through its material culture and the spatial claims of the various groups that live within it. The St Ives eruv case provides a lens through which these negotiations over the place of a minority religion in public space can be critically observed. Moreover, it shows how the interpretation and use of purportedly neutral planning law provisions can legitimise a majority’s fears, making them appear to be neutral objections even as they constrain the minority’s right to religious freedom.
Minority Religions and Urban Space
The ordering and managing of space is an integral aspect of state governance. The state acts through its local planning authorities, which process development applications and grant or deny consent to build within the framework of planning regulations. The attempts of religious groups to dedicate and use space for religious purposes are the moments when planning law and religious freedom intersect. Neutral on the surface and designed to be “one law for all,” planning regulations in fact often disadvantage minority religions. Planning provisions and their interpretation may provide “fertile ground” for channelling intolerance and discrimination, which infringes on international standards for religious freedom. An international human rights based approach is particularly relevant because the Australian Constitution lacks a bill of rights. Fundamental rights are also not comprehensively protected in state and territory legislation, with the exception of the ACT and Victoria, both of which have human rights acts. Although international human rights conventions are not directly enforceable in Australian courts, they provide a benchmark against which Australian compliance with its obligations can be measured. At the very least, planning applicants can legitimately expect that their right to religious freedom will be taken into account by local authorities.
An Eyesore? The eruv’s encounter with local planning provisions
Although mainly a symbolic religious action, the establishment of the enclosure of an eruv requires physical demarcations through poles and wires when existing demarcation lines like railway tracks or cliffs are not sufficient. Obtaining planning permission from local authorities is therefore a necessary requirement for the creation of these structures. The establishment of the St Ives eruv was preceded by four development applications, and it was the fourth and final application that created a heated debate in this leafy northern Sydney neighbourhood. The local council received five petitions from local residents, two in support of the eruv (with a total of 678 signatures) and three opposing the eruv (with a total of 1423 signatures). The objecting petitions were particularly concerned with the purportedly negative visual impact of the eruv. The religious structure was portrayed as “ugly,” “intrusive,” as affecting detrimentally the amenity of the area, and as “an eyesore.” It is worth noting that the eruv is an almost invisible structure that blends in with existing poles and lines. For someone who is not familiar with this structure, it is hard to even notice its presence in between the existing cables and poles for electricity and telecommunication. As Vic Alhadeff from the New South Wales Jewish Board of Deputies summarised: “An eruv is a non-event to most of us.” This view was shared by the two petitions in support of the eruv: “We feel that the proposed ERUV will make a difference to those that will use it with no impact on the wider community.”
One petition claimed that the construction of an eruv would make property in the area less marketable to the general society. This objection is particularly troublesome because it links a potential migration of Jewish families, for whom the eruv is an important asset, to a loss in property value of an entire neighbourhood. More than one petition was worried about the “negative social consequences” of the eruv that had the “propensity to develop into a religious enclave.” Some (among them a Jewish Holocaust survivor) even feared that it would create a Jewish ghetto in St Ives. Although opponents of the eruv were eager to stress that religious intolerance did not motivate their behaviour, the petitions speak another language. Ultimately, the local council rejected the development application to construct the eruv. Deputy Mayor Jennifer Anderson said: “The majority of residents objected to the proposed eruv, with many residents concerned with the negative impact the visual clutter from the additional poles and wires would have on the streetscape. This was the major concern and not religious or racial views.”
Planning Law’s complicity
It is often the case that the planning category of “visual amenity” plays a pivotal role in disputes over the permissibility of religious places for minorities. Unlike physical amenity, the visual component of amenity is an elusive concept, which is open to interpretation to planners and residents alike. Planning law scholar Leslie Stein writes: “Visual amenity is about perception, matters of taste, memory, and ascribing a benefit to beauty which has deep psychological roots. It is illustrative of the ability of the general concept of amenity to absorb intangible matters that draw from the source of psychological well-being and are not capable of measurement.” Visual amenity’s highly subjective nature makes it an apt tool to camouflage prejudice and religious intolerance. The eruv is by no means an exception in this regard. The reference to negative visual impact often serves as the justification for the refusal to build a mosque or a temple. Planning law thus becomes an accomplice in the restriction of the religious freedom of minorities, seriously limiting their ability to set up houses of worship.
To be sure, the protection of religious practice, under which the construction of an eruv can be subsumed, is not without limitation. For example, it can be legitimately restricted if it conflicts with the rights of others. However, it is hard to imagine a competing right that the eruv violates in the particular setting of St Ives. The eruv’s subtlety does not conflict with the right of freedom from religion. The burden of having some additional wire next to existing cables does not outweigh the right to religious freedom of the religious group. Fear of potential social change in the neighbourhood is similarly not a legitimate reason to infringe on the religious freedom of a minority group.
In the case of the St Ives eruv state law did not provide an adequate solution. A subsequent appeal to the New South Wales Land and Environment Court was dismissed because the court lacked jurisdiction under the Roads Act, however the Court did note that the eruv’s visual impact was in fact marginal. How was it then that the eruv nevertheless became a reality in 2015? Eruv supporters looked for alternative solutions beyond state law and with the help of power company Ausgrid were finally able to set up the eruv. This outcome teaches an interesting lesson about the law’s role in highly pluralistic processes of regulation where political, religious, and social forces are all involved in the complex regulation of religious practice.
Political actors play a significant role in Australia’s system of the protection of religious freedom. While this approach may often prove successful, it has some pitfalls. At a local level, religious minorities run the risk of being marginalised when local council members give in to pressure from the majority society. The lack of legislative human rights protection at a state level in New South Wales or a constitutionally-entrenched bill of rights constitutes a legal void in an already patchy and fragmented system of protection of the human right to religious freedom – a void through which the eruv fell. The public demonstration of religious or cultural difference in public urban space remains a contested issue even in states that embrace multiculturalism as official policies, such as Australia. Difference, it seems, is still a matter that many prefer to relegate to the private. This contradiction between official multiculturalism and the politics of everyday life was articulated clearly by one of my respondents: “I do think that Australia is a Judeo-Christian country. However, for me as a Jew, it is all about visibility. You just don’t make it too visible that you are a Jew.”
 Saskia Sassen (2007), Sociology of Globalization, p. 99.
 Noel Villaroman (2015), Treading on Sacred Grounds, p. 173; see also Carolyn Evans (2010), “Religion and the Secular State in Australia,” in: Javier Martínez-Torrón and W. Cole Durham (General Reporters), Religion and the Secular State: National Reports, p. 92 (108).
 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273. The legitimate expectations doctrine continues to be used in Australian law although later decisions were more restrictive.
 Leslie Stein (2008), Principles of Planning Law, p. 194-195.
 See article 18 paragraph 3 ICCPR: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
 Evans (2010), p. 108.
 For instance, the German constitution (Grundgesetz) states in Article 1 (3) “The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.” Consequently, administrative courts will consider whether the decision of a public authority infringed basic rights, such as the right to religious freedom of an applicant.
 Personal interview, April 2015.