Cullen v Blacktown City Council - [2005] NSWLEC 516

Pending Appeal:

Land and Environment Court

of New South Wales

CITATION:
Cullen v Blacktown City Council & Ors [2005] NSWLEC 516
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Shannon Cullen
FIRST RESPONDENT
Blacktown City Council
SECOND RESPONDENT
Helen Xuereb
THIRD RESPONDENT
Dianne Boros

FILE NUMBER(S):
10115 of 2005

CORAM:
Moore C

KEY ISSUES:
Development Application :-
Funeral parlour in commercial zone
Psychological impact on residents
Restrictions on operation

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Local Government Act 1993
Public Health (Disposal of Bodies) Regulation 2002
Blacktown Local Environmental Plan 1988

CASES CITED:
Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117;
H N Olson Pty Limited v Rockdale City Council (2005) NSWLEC 361

DATES OF HEARING: 17 May and 23 August 2005

EX TEMPORE JUDGMENT DATE:
08/23/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr B Hones, solicitor
Hones Lawyers
FIRST RESPONDENT
Mr S Simington, solicitor
Lindsay Taylor Lawyers
SECOND & THIRD RESPONDENTS
Mr C Maley, solicitor
Maclarens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

23 August 2005

10115 of 2005 Shannon Cullen v Blacktown City Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Blacktown City Council (the council) of an application to establish a funeral parlour at Lot 18 DP 30448 at Orcam Lane, Rooty Hill (the site). The application was subsequently refused by resolution of the council on 9 February 2005.

2 When the matter first came before me, it came, in effect, as a proposal to which the council no longer raised objections, the council having further considered the matter. By way of preliminary comment, I would make two observations.

3 The first is, the applicant is entitled, as a long settled matter of law, that if the applicant were to be given a consent, subject to conditions, it would be presumed that he would observe those conditions.

4 Therefore, in these proceedings, to the extent that the conditions are in contention, it is not with respect to their observation but as to, firstly, their reasonableness and, secondly, as to whether in fact it is possible for them to be observed.

5 The second observation I make is with respect to the state of the plans. A number of matters arose during the course of the proceedings, evidence having been given by Mr Nye, the secretary of the registered industrial organisation representing employees in the industry, drawing my attention to the provision of a number of elements of the Public Health (Disposal of Bodies) Regulation 2002, that the plans in fact did not conform with those regulations.

6 I am satisfied that that would have required significant alteration to the internal layout of the building in order to ensure that compliance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 516
Decision Date: 08/23/2005

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an appeal by Shannon Cullen against the Blacktown City Council's refusal to grant a development application for a funeral parlour in a commercial zone. The application was initially deemed refused and subsequently formally refused by the council on 9 February 2005. The applicant contested the refusal and the matter was brought before the court.

The court had to determine whether the council's refusal was justified. This involved assessing the psychological impact on nearby residents, the feasibility of operating conditions, and compliance with relevant regulations and planning objectives. The court also had to consider whether the proposed conditions were reasonable and enforceable.

The court found that while the applicant was entitled to have his conditions presumed to be observed if consent was granted, the conditions themselves needed to be reasonable and practicable. The court noted that the plans did not fully comply with some regulations but found that compliance could be achieved with significant but feasible modifications. The court also considered the impact on nearby residents and businesses and directed a town planning expert to review the potential impact on a neighbouring residential zone.

The court found that the proposed conditions regarding the number of people allowed at a viewing were not reasonable or enforceable. The court concluded that limiting viewing parties to ten people was necessary due to the limited space and access issues but found that enforcing such a limit would be practically impossible and could lead to adverse impacts on the shopping centre. The court also determined that the other conditions were either reasonable or could be amended to ensure compliance.

The court dismissed the appeal and confirmed the council's refusal of development consent for the establishment of a funeral parlour at the specified site. The court's decision was based on the impracticality of enforcing certain conditions and the overall impact on the surrounding community and businesses.

Orders