Des Allen and Co Funeral Directors P/L v Bundaberg City Council

[2000] QPEC 34

PLANNING AND ENVIRONMENT  COURT OF QUEENSLAND

CITATION:	Des Allen & Co. Funeral Directors Pty Ltd  v. Council of City of Bundaberg. [2000] QPE 034
PARTIES:	DES ALLEN & CO. FUNERAL DIRECTORS PTY LTD (Appellant) v. COUNCIL OF CITY OF BUNDABERG (Respondent)
FILE NO:	5 of 1999
DELIVERED ON:	16 May 2000
DELIVERED AT:	Brisbane
HEARING DATES:	8 and 9 May 2000
JUDGE:	Skoien S.J.D.C.
ORDER:	Appeal dismissed.
CATCHWORDS:	Conflict with planning documents;  need;  appropriateness of location.
COUNSEL:	Houston for the appellant Ure for the respondent
SOLICITORS:	Heiner & Doyle for the appellant Baker O’Brien and Toll for the respondent

1. This is an appeal against the decision of the Council to refuse Allen’s application for a material change of use to permit the installation of a cremator at a funeral parlour operated by Allen at Bundaberg.

1. The appeal is brought under s.4.1.28 of the Integrated Planning Act 1997, the onus being placed on Allen by s.4.1.50(1), and the appeal being a hearing anew by virtue of s.4.1.52(1). Sections 6.1.2 and 6.1.3 prescribe that the pre-existing town plan for Bundaberg is a transitional planning scheme which continues to apply and s.6.1.30 requires the matter to be decided under the provisions of the Local Government (Planning and Environment) Act 1990. So, effectively, this was an application to re-zone the land from its current Central Business B Zone to a Special Facilities Zone.

The Site

1. The site is rectangular, level and comprises 1766 m².  It is in Toonburra Street, Bundaberg, in the Central Business District and is within the Central Business B Zone.  Allen’s funeral parlour and chapel is on the site, having been established in 1997 and operates successfully.  It is a single storey building.

The Area

1. The site is within and near the eastern boundary of the CBD and is surrounded by commercial and light industrial premises.  However also within the area are a number of occupied residences of long standing.  The closest, to the south east, is some 50 metres from the site, two others to the north and north east are well within 100 metres of the site.  Another six are within 200 metres of the site.  Most of these (including the three within 100 metres) are occupied.

The Proposal

1. The proposal involves an extension of 67  m² to the area of the existing building to house the cremator, a modern All 2500 Elite machine which is to run on propane gas but can run on natural gas if it were to be available, as seems likely.  It is a modern machine and its ability to perform its function as well as any machine of its type is not disputed.  The cremator’s chimney is intended to stand three metres higher than the roofline of the building.  Lattice fascias are planned which will largely screen it from neighbouring allotments and streets.  It is expected that up to three cremations a day would occur, each cremation, at a temperature of between 500°C and 590°C, taking about two hours.

The Issues

1. The issues in dispute in this appeal can be summarised under the headings of Statutory Planning Documents, Need and Appropriateness of Location.

Statutory Planning Documents

1. Under the Town Planning Scheme for Bundaberg a cremator is a prohibited use in all zones;  it can only be established in a Special Facilities Zone.  That indicates a realisation on the part of the drafters of the planning scheme that an application for the installation of a cremator is a very sensitive matter which must be considered very carefully no matter what zone the site for the proposed use may be in.

1. The site is within the Business Preferred Dominant Land Use designation on the Strategic Plan map, the objectives of which include the encouragement of higher order shopping and commercial development in the city, most particularly the Central Business District (objective 4(a));  to encourage the development of complementary facilities such as entertainment, accommodation and government services in the CBD (objective 4(b));  to improve the efficiency, attractiveness and interest of the town centre (objective 4(c)).

1. The site is also within the overlaid City Image Precinct Preferred Dominant Land Use under the Strategic Plan the categorisation of which is “those parts of the City whose appearance and function are most important to the image of Bundaberg”.  The implementation provisions for that precinct require assessment of development applications to take account of the impact of the development on the overall city image, with particular reference to specified areas including “the CBD”.

1. It has to be said that the appropriateness of the establishment and operation of a cremator on this site does not spring to mind when the provisions in paras [8] and [9] above are read. To the contrary, such a use is positively discouraged by them.

Need

1. The evidence of Mr Norling, who carried out appropriate enquiries and surveys, is that the one existing crematorium in Bundaberg, which is about 9 km from the site, is operating well below capacity and that capacity is unlikely to be reached for many years to come.  The provision of  a second cremator for the city of Bundaberg (and its dependent hinterland) would mean that on a population basis the area would be better served than any other part of Queensland.

1. Of course “need” in a planning sense, does not just look at raw figures, rather:

“need does not mean pressing need, critical need, widespread desire of anything of that nature rather, a thing is needed if its provision, taking all things into account would improve the physical well-being of the community”  (Cut Price Stores Retailers v. Caboolture City Council [1984] Q.P.L.R. 126 at p131);

and

“need in planning terms is a relative concept and does not connote pressing urgency but rather relates to the general well being of the community; a use would be needed if it would, on balance, improve the services and facilities available in a locality”  (Rooster Land Pty Ltd v. Brisbane City Council [1986] 23 A.P.A.D. 58 at p60).

1. What is proposed here is a very specific development which attracts customers who have but one purpose in mind.  Matters of geographic convenience or variations in price giving rise to the opportunity for comparison shopping, or choice, is often sufficient to establish need.  So one looks at the availability of and fees charged by alternative existing institutions elsewhere, in reasonable proximity to the site.   There is one such, 9 km away, which is quite able to meet any demand and the fees for which are not alleged to be markedly different from those which would be charged at the proposed cremator.

1. The evidence of Mr Allen and Mr Drysdale was that some customers prefer to have the cremation carried out on site, that is, on the same premises as the funeral parlour and chapel.  I really cannot accept that as a genuine expression of preference.  Cremation, unlike burial, does not take place in the presence of the mourners.  Nor do the mourners wait to receive the ashes of the deceased.  They take possession of them days later.  So it cannot be of consequence, and therefore a matter of genuine choice, where the actual cremation occurs provided it can occur reasonably promptly.

1. There is evidence of some price-fixing, or unfair trading practices which once prevailed among some of the five funeral parlours in Bundaberg (three of which are related entities).  But the evidence is that a complaint to the Competition and Consumer  Commission ended the practices.  I see no reason why that statutory watchdog would not in future prevent practices which deny proper competition, to the disadvantage of consumers.

1. I conclude that Allen has failed to establish that the proposed cremator is needed.

Appropriateness of Location

1. As I have said the proposed cremator is a modern machine which, operating properly and operated properly, does not produce visible emissions (other than perhaps a heat haze) or detectable odours.  However that statement raises the critical question, will it operate and be operated properly?

1. The expert evidence on this point was given by Mr Kamst (on behalf of Allen) and Dr. Miller (on behalf of the Council).  I thought that their evidence differed only in degree, the approach of Mr Kamst being less cautious than that of Dr. Miller and as will appear I prefer the more cautious approach. 

1. Dr. Miller raised a cogent point when he referred to the fact that the cremator documentation which has been made available, while it refers to an alarm system for malfunctions, does not explain them.  So one cannot feel complete confidence in the system and Dr Miller clearly did not.  Mr. Drysdale, who operates a similar but somewhat older model at another crematorium, gave evidence of visible emissions of smoke occurring “a few times” which, in my view, proves the obvious fact that any machine can malfunction or be improperly operated.  His evidence gave me the impression that the primary means of detecting the emissions was observation of the chimney stack.  I doubt that such observation could be maintained at all times but in any event to see an emission (or to smell one, assuming the observers are standing downwind) would necessarily involve some delay before the cause could be identified and rectified.

1. Mr. Drysdale said that his cremator has not been the subject of any complaints.  I do not doubt his evidence, but given his evidence of the rare occasions when visible emissions occurred, that absence of complaint may be very largely due to chance in that the smoke was not seen by anyone else and no one was then downwind to detect odours.

1. Dr Miller was of the view that nuisance emissions of smoke and odour would occur, even if rarely, and I accept his evidence on the point.  Should an emission of odour occur it is likely to be noticeable to anyone in its plume, that is downwind.  Depending on the direction of the wind that could affect any one of three residences or one or more of a number of commercial and light industrial premises, all within 100 metres of the cremator and some of them much closer than that.  Or it could be smelt by passers-by.

1. The duration of that effect would very probably be short, perhaps a few minutes only.  That period is much shorter than some widely used odour guidelines deem to be improper.  But here the consideration is not one of health.  It is, as Dr. Miller emphasised, one of nuisance.  To my mind few odours or sight of smoke could cause as much adverse reaction as one which is identified as coming from the burning of a human body.  No doubt that is why the Australian Cemeteries Crematorium Association, in guidelines which it has published, recommends a buffer zone of at least 100 metres and preferably  200  metres around a cremator.  That recommendation can only be taken as a recognition of the fact that modern cremators can cause nuisance to people of ordinary sensibilities who are within 100 metres or even 200 metres. I regard such guidelines, produced by the organisation comprising those most experienced in the actual operation of cremators, to be very persuasive.

1. In this case, there is no buffer at all.  So the residents of at least three houses are at potential risk.  So are the owners, employees and customers of a number of commercial premises and possible passers-by, who cannot be expected to be insensitive to offensive smells.   The smells which would be produced, or even the sight of an escape of smoke from a cremator are so offensive to people of ordinary sensibilities that a proper planning authority, in my opinion, would be reasonable in regarding as highly relevant even the bare chance of such events occurring only rarely.

1. That places an undoubtedly high onus on Allen in the application to the Council.  But given the sensitivity of the matter, that is quite appropriate.  The sensitivity partly relates to the question of nuisance discussed in this section of my reasons but also to the fact that the application relates to a site in the CBD of Bundaberg and I refer to my discussion of the Planning Documents in paragraphs [7] – [10].  The happening of an event creating a sight or odour nuisance of the type discussed would be likely to have very severe consequences affecting the reputation of the city and of its elected councillors.  One can easily imagine the derision or disgust which the happening of such a nuisance in the CBD of a modern city would generate.

1. I can place no reliance on the fact that, other than by two commercial competitors, there were no objections to Allen’s application.  One would not expect as much public interest in this proposal as there would be, for example, were a residential zone involved.  Furthermore, the public did not have the benefit of expert advice such as Dr Miller gave in his evidence.  Nor do I infer anything significant from the withdrawal from the appeal of  an  objecting co-respondent who may have done so for any number of reasons.

Conclusion

1. Allen has failed to discharge the onus under s.4.1.50(1).  The appeal is dismissed.