Axell v AAI Ltd ACN 005 297 807 T/As GIO (Motor Accident Injuries)

This is an application for review of a decision to approve, subject to conditions, a proposal to construct a new crematorium and associated landscaping and other works on Block 1 Section 3 Symonston (the site). The site is located next to the Callum Brae Nature Reserve (Callum Brae). The Tribunal heard the matter over several days, with the final submissions being made on 26 June 2025. The Tribunal was satisfied development approval should be given, subject to varying the conditions of approval to clarify the limits on the permitted use as a ‘cemetery’, minimise the visual impact of the development on the landscape quality of the locality, including Callum Brae and prevent fragmentation of Swift Parrot habitat, particularly in the next 1 to 5 years. The Tribunal made final orders on 30 June 2025. The Tribunal found the evidence of Professor Robert Heinsohn and Dr Deborah Saunders, both respected experts on Swift Parrots, compelling. Their evidence generally related to the endangerment of the species, material current sightings of Swift Parrots on and near the site, and the importance of preserving the integrity of foraging habitat to ensure the best chance of survival of the species. The Tribunal considered the potential fragmentation of Swift Parrot habitat associated with the development, removal of mature trees and the growth times for compensatory replacement trees, cannot be dismissed considering the evidence of Professor Heinsohn and Dr Saunders regarding the risk of fragmentation of Swift Parrot habitat, particularly in the immediate to short term. The Tribunal considered that several mature trees nominated for removal were important to preserving foraging habitat and should be retained. The Tribunal also considered that minor changes to the development to preserve existing trees that were likely to reach maturity and provide suitable habitat in a shorter timeframe than newly planted trees and a requirement to plant advanced specimens of compensatory trees, was appropriate to ensure fragmentation of habitat did not occur, particularly in the immediate to short term. The Tribunal also found that the impact on the landscape quality on the whole would be negligible and that the proposed development footprint, built form scale and massing, tree retention and planting strategies would enable continuity of and integration with the landscape character and quality of the locality. However, the Tribunal considered the minimal visual buffer between the Narrabundah Lane visitor access road and carpark, the proximity of the crematorium building to the boundary with Callum Brae and the service road within the boundary setback, with associated removal of several mature trees (including a remnant) will detract materially from the landscape quality of the locale, particularly the northern outlook from Callum Brae. To this extent the Tribunal agreed with the applicants’ concerns that this part of the development was likely to “adversely impact and visually intrude on the landscape and environmental quality of the locality”. To ameliorate this, the Tribunal has imposed a condition requiring screen planting of trees and plant species consistent with the existing woodland character along the boundary of the site, extending from Narrabundah Lane to tree TR35 – which is west of the crematorium building – as well as realignment of the service road and retention of several trees slated for removal. The Tribunal considers this will adequately protect the landscape quality of the locality. The Tribunal found that the development proposal should have been assessed in the merit track and that there was no evidence the proponents knew or should have known the proposal was likely to have a significant adverse impact on the Swift Parrot (assuming that fact is established) at the time the development application was submitted. The Tribunal found the development proposal did not provide for the land to be used for internment of the dead, although this fell within the Territory Plan definition of “cemetery”. The Tribunal considered it was appropriate to make this pellucidly clear by inserting the words “(limited to crematorium and memorial park)” after “cemetery” in the description of the approved variation to the Crown lease. The Tribunal found the site was suitable for use as a “cemetery” and that the evident purpose of the requirement was to ensure that use of the land for the purpose of a “cemetery” was constrained by the plans, drawings and other documents forming part of the development approval, including the ongoing management plan. The Tribunal found that the applicants’ submissions that the development should be refused because it did not comply with the zone objectives and probable environmental impacts was adequately addressed by varying condition 5(a)(iv) of the conditions of consent in the manner discussed earlier. The Tribunal considered the applicants’ concerns were adequately addressed by varying condition 5(a)(iv) of the conditions of consent in the manner discussed earlier. The Tribunal refused leave to re-open the case because it would be procedurally unfair to permit an issue to be raised for the first time about whether the development application was duly authorised after the evidence had closed.