Farley Environment Care Inc. v HL Fry Properties Pty Ltd

[2021] NSWLEC 77

Land and Environment Court

New South Wales

Medium Neutral Citation:

Farley Environment Care Inc. v HL Fry Properties Pty Ltd [2021] NSWLEC 77

Hearing dates:

29 June 2021

Date of orders:

20 July 2021

Decision date:

20 July 2021

Jurisdiction:

Class 4

Before:

Pain J

Decision:

(1) Prayers 2 and 3 in the further amended notice of motion dated 24 June 2021 are made

Catchwords:

PROCEDURE – leave sought to rely on expert funeral industry evidence in judicial review proceedings – evidence of funeral industry consultant to inform characterisation of development consent for crematorium and cemetery reasonably necessary

PROCEDURE – leave sought to rely on ecological evidence in judicial review proceedings – whether biodiversity development assessment report required in relation to development consent for crematorium and cemetery a question of jurisdictional fact – ecological evidence permitted

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW) Pt 7 (ss 7.2, 7.4, 7.7)

Biodiversity Conservation Regulation 2017 (NSW) regs 7.2, 7.3

Environmental Planning and Assessment Act 1979 (NSW) s 4.22, (former) s 78A

Evidence Act 1995 (NSW) s 80

Goulburn Mulwaree Local Environmental Plan 2009

Maitland Local Environmental Plan 2011 Dictionary

Standard Instrument—Principal Local Environmental Plan (2006 EPI 155a)

State Environmental Planning Policy No 55—Remediation of Land (1998 EPI 520)

Uniform Civil Procedure Rules 2005 (NSW) Pt 31 Div 2 (rr 31.17, 31.19)

Cases Cited:

Al-Mabarat Benevolent Society Limited v Goulburn Mulwaree Council [2018] NSWLEC 1261

Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404

Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1986] HCA 36

Federal Commissioner of Taxation v American Express Wholesale Currency Services Pty Ltd (2010) 187 FCR 398; [2010] FCAFC 122

Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157

Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384; [2002] FCAFC 392

Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217

Hrdavec v State of New South Wales [2018] NSWSC 1081

Issa v Burwood Council (2005) 137 LGERA 221; [2005] NSWCA 38

Local Democracy Matters Incorporated v Infrastructure NSW (2019) 237 LGERA 74; [2019] NSWCA 65

Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26

Mullaley Gas and Pipeline Accord Inc (MGPA) (Mullaley Gas INC9894330) v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 24

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184

Olivia Ross v Patrick Lane [2021] NSWLEC 61

R v GK (2001) 53 NSWLR 317; [2001] NSWCCA 413

Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195

TheUniting Churchin Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1263

Timbarra Protection Coalition Inc v RossMining NL (1999) 46 NSWLR 55; [1999] NSWCA 8

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Pallas Newco Pty Ltd v Votraint No 1066 Pty Ltd (2003) 129 LGERA 234; [2003] NSWLEC 232

Texts Cited:

Macquarie Dictionary (online at 15 July 2021)

Category:

Procedural rulings

Parties:

Farley Environment Care Inc. (Applicant)
HL Fry Properties Pty Ltd (First Respondent)
Maitland City Council (Second Respondent)
Hill Top Planners Pty Ltd (Third Respondent)

Representation:

COUNSEL:
J Walker (Applicant)
J Lazarus SC (First Respondent)
Submitting appearance (Second Respondent)
Submitting appearance (Third Respondent)
SOLICITORS:
University of Newcastle Legal Centre (Applicant)
Pikes & Verekers Lawyers (First Respondent)
Lindsay Taylor Lawyers (Second Respondent)
Richard Bennet, agent (Third Respondent)

File Number(s):

21/73096

Judgment

1. The Applicant is challenging in judicial review proceedings two development consents issued by Maitland City Council (Council) to the First Respondent HL Fry Properties Pty Ltd (Fry) in relation to land known as 48 Old North Road, Farley (the site). The first consent is for Development Application (DA) 2018/2077 Concept Plan and Stage 1 of a proposed cemetery development which includes a cemetery and crematorium inter alia, and the second is for DA 2018/2078 Stage 2 of that development. The site is zoned RU2 Rural Landscape under the Maitland Local Environmental Plan 2011 (Maitland LEP). The consent authority, the Council, has filed a submitting appearance as has the Third Respondent.

2. The Applicant has filed a further amended notice of motion dated 24 June 2021 which seeks a number of orders, namely that it be granted leave to rely on an amended summons and to adduce expert evidence of a funeral and cemeteries consultant and an ecologist. Fry consents to the amended summons being relied on and an order permitting that reliance has been made.

3. Under Pt 31 Div 2 r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) parties must seek court directions before calling expert evidence. Rule 31.17 identifies the main purposes of Pt 31 Div 2 as:

31.17   Main purposes of Division

The main purposes of this Division are as follows—

(a)   to ensure that the court has control over the giving of expert evidence,

(b)   to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c)   to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d)   if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e)   if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f)   to declare the duty of an expert witness in relation to the court and the parties to proceedings.

4. The orders sought in the further amended notice of motion are as follows:

…

2.   The parties are granted leave to adduce expert evidence from an expert funeral and cemeteries consultant on the following questions:

(a)   What is the difference between a “memorial service” and “funeral” as those terms are understood in the funeral services industry?

(b)   Does the development proposal described in the Statement of Environmental Effects – Concept Development Application – 48 Old North Road Farley include the carrying out of funerals, as that term is understood in the funeral services industry?

(c)   Does the development proposal described in the Statement of Environmental Effects – Stage 2 – 48 Old North Road Farley, include the carrying out of funerals, as that term is understood in the funeral services industry?

(d)   Is the 300 seat chapel described in both SEEs listed above adapted for use solely for the purpose of memorial services, or use for both the purpose of memorial services and funeral services?

(e)   Do the scale and nature of the activities carried on in the mortuary as described in both SEEs listed above indicate that the mortuary is to be used:

(i)   solely to support activities carried out at the crematorium and cemetery proposed for the Land; or

(ii)   as an independent mortuary; and/or

(iii)   to support the conduct of a funeral home and/or funeral services on the Land?

(f)   Do the nature and scale of activities carried on in the funeral home as described in both the SEEs listed above indicate that the funeral home is to be used:

(i)   solely to support activities carried out at the crematorium and cemetery proposed for the Land; or

(ii)   as an independent funeral home.

3.   The parties are granted leave to adduce expert evidence from an expert ecologist on the following questions:

(a)   Will implementation of the Concept Plan approved by the Stage 1 Consent:

(i)   require the clearing of more than 1 ha of native vegetation?

(ii)require the clearing of land included in the Biodiversity Values Map referred to in cl 3.7 [sic] of the Biodiversity Conservation Regulation 2017?

(b)   Will implementation of the Stage 2 Development Consent:

(i)   require the clearing of more than 1 ha of native vegetation?

(ii)   require the clearing of land included in the Biodiversity Values Map referred to in cl 3.7 [sic] of the Biodiversity Conservation Regulation 2017?

5. Fry consents to the order to adduce evidence of an ecologist in relation to question 3(b) but not 3(a).

Amended summons

6. Declarations of invalidity of both development consents are sought in the amended summons. The grounds of judicial review are that these consents are for prohibited development, being approval of a funeral home and mortuary, which are not permitted in a rural zone under the Maitland LEP (prohibited development grounds). Additional grounds argue that a biodiversity development assessment report (BDAR) pursuant to s 7.7 of the Biodiversity Conservation Act 2016 (NSW) (BC Act) should have been provided with both development applications and was not as the proposed development is likely to significantly affect a threatened species (BDAR ground(s)).

Environmental Planning and Assessment Act 1979

7. Section 4.22 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) relevantly provides:

Part 4 Development assessment and consent

…

Division 4.4 Concept development applications

…

4.22   Concept development applications

(1)   For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.

(2)   In the case of a staged development, the application may set out detailed proposals for the first stage of development.

(3)   A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.

(4)   If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless—

(a)   consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b)   the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.

(5)   The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

Biodiversity Conservation Act 2016

8. If proposed development is likely to significantly affect a threatened species, the application for development consent is to be accompanied by a BDAR (BC Act Pt 7 Div 2 s 7.7). Pursuant to ss 7.2(1)(b) and 7.4 of the BC Act, a development is deemed likely to significantly affect a threatened species if it exceeds the biodiversity offsets scheme threshold as specified in the regulation.

Biodiversity Conservation Regulation 2017

9. Thresholds for the likelihood of significantly affecting a threatened species in the Biodiversity Conservation Regulation 2017 (NSW) (Biodiversity Regulation) are the clearing of more than 1 ha of native vegetation pursuant to reg 7.2 (minimum lot size for the site is 40 ha), and the clearing of land within the “Biodiversity Values Map” pursuant to reg 7.3 as follows:

Part 7 Biodiversity assessment and approvals under Planning Act

…

7.2   Clearing of area of land that exceeds threshold

(1)   Clearing of native vegetation is declared by this clause to exceed the biodiversity offsets scheme threshold if the area proposed to be cleared is the area set out in Column 2 of the Table to this clause opposite the minimum lot size applicable to the land to be cleared in Column 1 of that Table.

…

Table
Column 1	Column 2
Minimum lot size of land	Area of clearing
…
Less than 1,000 hectares but not less than 40 hectares	1 hectare or more
…

7.3   Clearing on land within Biodiversity Values Map exceeds threshold

(1)   In this clause—

the Map means the Biodiversity Values Map published, from time to time, on an appropriate Government website under this clause.

(2)   The Environment Agency Head is to prepare and publish a Biodiversity Values Map. The Environment Agency Head may, from time to time, amend or replace the Map.

(3)   The Map may include the following land—

(a)   land that is the coastal wetlands and littoral rainforest area of the coastal zone referred to in the Coastal Management Act 2016,

(b)   land identified as koala habitat in a plan of management made under State Environmental Planning Policy No 44—Koala Habitat Protection, being land that in the opinion of the Environment Agency Head is core koala habitat,

(c)   land that is a declared Ramsar wetland within the meaning of the Environmental Protection and Biodiversity Conservation Act 1999 of the Commonwealth,

(d)   land that, in the opinion of the Environment Agency Head, contains any threatened species or threatened ecological communities that are identified in a list of potential serious and irreversible impacts on biodiversity values under section 6.5(2) of the Act,

…

Maitland Local Environmental Plan 2011

10. The Maitland LEP includes the following definitions:

Dictionary

…

cemetery means a building or place used primarily for the interment of deceased persons or pets or their ashes, whether or not it contains an associated building for conducting memorial services.

…

crematorium means a building in which deceased persons or pets are cremated, whether or not it contains an associated building for conducting memorial services.

…

funeral home means premises that are used to arrange, conduct and cater for funerals and memorial services, whether or not the premises include facilities for the short-term storage, dressing and viewing of bodies of deceased persons.

…

mortuary means premises that are used, or intended to be used, for the receiving, preparation, embalming and storage of bodies of deceased persons pending their interment or cremation.

11. “Memorial service” and “funeral” are undefined in the Maitland LEP.

12. In the “Land Use Table for Zone RU2 Rural Landscape” “cemeteries” and “crematoria” are permitted with development consent under Item 3. “Funeral home” and “mortuary” are prohibited as innominate uses under Item 4 not being otherwise specified in Item 2 (permitted without consent) or Item 3.

Evidence

Applicant’s evidence

Affidavit evidence

13. The Applicant read the affidavit of Jacquie Svenson solicitor dated 28 May 2021 swearing that the Applicant has engaged an ecologist to provide an expert opinion in relation to the proposed development. Ms Svenson annexed to her affidavit a report in which Fry purported to overlay the footprint of the development on the Biodiversity Values Map. Ms Svenson attested that it appeared the development footprint as shown in Fry’s overlay was inaccurate in that the area marked as the development footprint was too small and was located further north than what is shown in the single sheet (DA1101) site masterplan prepared by Shac (Site Masterplan) Revision 2 dated 3 June 2019. Ms Svenson attested that it appeared very likely the approved development footprint intersected with one or more areas mapped on the Biodiversity Values Map under the BC Act, however this would need to be confirmed by expert evidence. Questions posed to the Applicant’s ecologist are annexed to Ms Svenson’s affidavit, one of them being whether the development triggers the requirement to be accompanied by a BDAR pursuant to Pt 7 of the BC Act.

14. Ms Svenson has also engaged a suitably qualified crematorium and funeral expert who is available in July 2021 to provide an expert opinion in relation to the proposed development. Ms Svenson included the questions that have been put to the expert. The Applicant also read a second affidavit of Ms Svenson dated 28 May 2021 correcting a typographical error in the first.

Documentary evidence

15. The Applicant tendered a tender bundle filed 4 June 2021 (Ex A) which relevantly includes:

1. a “Vegetation Community Map and Regrowth Assessment” for 48 Old North Road prepared by Kleinfelder dated August 2018. Figure 2 shows that Lower Hunter Spotted Gum Ironbark Forest is present on the study area;

2. a revised statement of environmental effects “cemetery, crematorium, funeral home and mortuary”, for the Concept Plan and Stage 1 (RSEE Stage 1) and a revised statement of environmental effects for Stage 2 both dated 11 November 2020;

3. the Site Masterplan Revision 2 dated 3 June 2019. Revision 1 of the Site Masterplan was dated 11 December 2018;

4. a “chapel – proposed ground floor plan” prepared by Shac Revision 1 dated 11 December 2018 (Floor Plan); and

5. a development consent for the Concept Plan and Stage 1 and development consent for Stage 2 both dated 8 December 2020.

16. The RSEE Stage 1 provides an overview of the development proposal:

…

2.1   Development Components

The proposed development is for the construction of a Cemetery and Crematorium together with ancillary land uses of funeral home and mortuary on a 41.4 hectare parcel of land at Farley, and includes:

•   Crematorium, Mortuary, Cool room, Storage, and Garaging for vehicles

•   Cemetery and Memorial Gardens

•   Two chapels (1 x 300 and 1 x 100 person capacity) and Bush Chapel

•   Tea room for post memorial service receptions

•   Office facilities

•   Managers residence

•   Car parking for 181 vehicles

•   Secondary access road and entrance to Old North Road

The Concept Development Plan components are summarized as follows:

…

2.2   Development Staging

The development will be undertaking [sic] in a number of Stages as follows:

Stage 1 – Construction of half of the building with provision to accommodate two cremator units, a short term holding cool room, and road access to this building. Site works and advanced landscaping for Stage 2 are also included. DA #1

Stage 2 – Construction of Chapel #1 with seating for 300 people, Cemetery (5000 plots), Memorial Gardens (10,000 niches), new entrance, roadworks and car parking (61 spaces); overflow car parking area, landscaping, pathways and fitout of portion of existing house as tea room and office. Additional onsite effluent disposal system. DA #2

Stage 3 – Construction of stand alone Tea Room, Lakeside Chapel with seating for 100 people, second half of Cremator building for housing the Mortuary, vehicle garaging and storage areas, bush chapel, landscaping additional parking (14 spaces), roadworks and pathways.

Stage 4 – Caretakers cottage and landscaping.

It is proposed that development applications for Stages 1 and 2 will be made to Council together with the Concept Development Plan. Development Applications for Stages 3 and 4 will be made following the completion of the construction of Stages 1 and 2.

2.3   Operational Details – when fully operational

…

Staffing

•   17 staff for funeral home and chapels

•   1 staff for crematorium

•   2 staff for mortuary

•   2 gardeners

•   2 general hands

•   1 caretaker/security

…

Processes undertaken within the Mortuary & Cool Room

• The mortuary will be undertaken in accordance with the requirements of Part 8 NSW Public Health Regulation 2012.

•   Receiving of deceased into mortuary and cool room.

•   Preparation of deceased, washing/cleaning, hair, makeup, dressing and embalming if required.

•   Preparation of coffin, handling, nameplate, lining, and presentation.

•   Placing deceased into coffin.

•   Up to 32 bodies could be stored.

…

17. Development consent dated 8 December 2020 was granted for “Concept Development Application for a Crematorium and Cemetery plus Stage 1 Works – Crematorium and associated site and internal roadworks” subject to conditions specified. A “Schedule of Conditions DA/2018/2077” is organised under the following headings:

1. “Part A – Concept Masterplan”

A1.   Concept approval is granted to the following development as shown on the Site Masterplan prepared by Shac dated 11.12.18:

Stage 1 – Half Cremator Building and site works;

Stage 2 – Lawn Cemetery, Memorial Gardens, New Chapel, Fit out of existing house as tea room, site works, carparking and landscaping.

Stage 3 – Lakeside chapel, second half of cremator building, stand alone tea room, bush chapel, carparking and associated site works. (Indicative only)

Stage 4 – Care takers cottage and yard (Indicative only)

A2. Development of Stages 3 and 4 are subject to separate development applications, in accordance with Section 4.22(4)(a) under the Environmental Planning and Assessment Act 1979.

2. “Part B – Stage One” states that development consent is granted to Stage 1 in accordance with approved plans (including the Site Masterplan Revision 2 dated 3 June 2019) and outlines further conditions of consent.

18. Development consent dated 8 December 2020 was granted for “Crematorium and Cemetery – Stage Two (2) including 300 seat chapel, cemetery, memorial gardens, roadworks, car parking and site and landscaping works” subject to conditions specified. A “Schedule of Conditions DA 18/2078” provides that the development shall be carried out in accordance with approved plans (including Site Masterplan Revision 2 dated 3 June 2019).

Fry’s evidence

19. Fry relied on the RSEE Stage 1 dated 11 November 2020, Site Masterplan Revision 2 dated 3 June 2019 and the development consent for the Concept Plan and Stage 1 dated 8 December 2020.

Applicant’s submissions

Funeral expert necessary

20. Grounds 1 and 3 of the amended summons allege that the Concept Plan and Stage 1 consent and Stage 2 consent allow the use of the site for the prohibited purpose of funeral home and mortuary. Fry submits that consent has been given for the permitted uses of crematorium and cemetery. The characterisation of a development proposal is a jurisdictional fact which the Court can determine on the evidence before it: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 (Pallas Newco CA) per Spigelman CJ at [86], [88]. The Applicant accepts that it must show the evidence is relevant and will be of real assistance in resolving a fact in dispute: Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 (Shellharbour CA) per Hodgson JA at [29] and Giles JA at [35]. The distinction between funeral and memorial service gives rise to a technical meaning in the funeral industry which is not necessarily apparent to a layperson. A funeral occurs before a burial or cremation whereas a memorial service occurs after burial or cremation. Expert evidence about the industry’s understanding of these terms is necessary to inform statutory construction.

21. As the issue of statutory construction is determinative, this evidence is necessary to resolve the issues in dispute. The RSEE Stage 1 refers to the use of a mortuary to prepare bodies and coffins which are not necessary for a memorial service. The Floor Plan for the 300-seat chapel contains markings indicating where the coffin will be located. Similar circumstances arose in Al-Mabarat Benevolent Society Limited v Goulburn Mulwaree Council [2018] NSWLEC 1261 (Al-Mabarat) at [32], [51].

22. The second purpose for which the Applicant intends to adduce evidence from a funeral consultant is to understand the relative importance of the different elements of the proposed use. The proposal is described in the heading to the RSEE Stage 1 as a “cemetery, crematorium, funeral home and mortuary”. However, the same document asserts elsewhere, and Fry evidently intends to argue in the present proceedings, that the funeral home and mortuary components of the use are ancillary to the permissible use of the land for the purpose of a cemetery and crematorium. An expert in the funeral industry is likely to be able to provide the Court with valuable insights about the type and scale of mortuary and funeral arranging facilities which are normally required to support a cemetery and crematorium of the size proposed by Fry. This will assist the Court to determine whether, according to the test in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161, the mortuary and funeral home uses proposed in this case are “subsumed” into the permissible uses, or whether they are uses which are “independent and not merely incidental”.

Ecological expert necessary

23. Whether a development is likely to significantly affect a threatened species within the meaning of the former s 78A(8)(b) the EPA Act is a jurisdictional fact: Timbarra Protection Coalition Inc v RossMining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 (Timbarra) at [94], [108]. The Court of Appeal in Timbarra made this finding in spite of the countervailing consideration that determining whether or not a proposal was likely to significantly affect a threatened species involved the exercise of a broad judgment and was “characteristically, a matter on which reasonable minds may differ” (at [88]-[89]). Section 7.2(1)(a) of the BC Act is in almost identical terms to former s 78A(8)(b) of the EPA Act and fulfills the same purpose in the planning assessment regime. If s 7.2(1)(a) of the BC Act requires a finding of jurisdictional fact, then it should be even clearer that s 7.2.(1)(b) does so, because it refers to a more easily measurable criterion. Therefore, fresh evidence is admissible to determine whether the development will in fact exceed one or more thresholds under the Biodiversity Regulation.

24. Whether a BDAR is required under the BC Act and Biodiversity Regulation is in issue, as Fry accepts in agreeing that question 3(b) in the further amended notice of motion should be considered by an ecologist.

25. The issue remains whether question 3(a) should also be answered by an ecologist. The Applicant submits that s 4.22(4) and (5) of the EPA Act support its approach, as does TheUniting Churchin Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 (Uniting Church) at [50] where “involving” clearing of native vegetation was found to give rise to the application of a clause of a planning instrument that applied to “development involving the erection of a new building” at the concept plan stage. Given the terms of s 4.22(4) of the EPA Act, later development consents cannot be inconsistent with the concept plan. Consequently, the Concept Plan and Stage 1 consent determining the building footprint and the Stage 2 development consent cannot be inconsistent with this. The consent authority is therefore constrained in assessing impacts for Stage 2, including the impact of clearing of native vegetation. The issue of whether the Biodiversity Regulation applies to require a BDAR should be considered at the concept approval stage. Local Democracy Matters Incorporated v Infrastructure NSW (2019) 237 LGERA 74; [2019] NSWCA 65 (LDM CA) relied on by Fry is distinguishable.

Fry’s submissions

Funeral expert not necessary

26. The Concept Plan consent is for a single sheet site plan identified in Part A of the Concept Plan and Stage 1 consent. There is no mention of a funeral home or mortuary on the approved Concept Plan. Part B of the first consent approves conditions to build half the crematoria building in Stage 1.

27. There are three issues in relation to question 2 suggesting it should not be answered. Question 2(a) identifies “memorial service” and “funeral” which are undefined terms in the Maitland LEP and can be assumed to bear their ordinary meaning: Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26 at [117(c)]; Hart v Commissioner of Australian Federal Police (2002) 124 FCR 384; [2002] FCAFC 392 at [64]; and Federal Commissioner of Taxation v American Express Wholesale Currency Services Pty Ltd (2010) 187 FCR 398; [2010] FCAFC 122 at [154]. Expert evidence is unnecessary to determine the ordinary meaning of undefined terms.

28. Shellharbour CA rejected similar evidence concerning expert opinion on the meaning of terms, including biodiversity, in a local environmental plan (LEP). The Applicant has not established that these words have a technical meaning which should be considered in the context of a LEP. If a question of whether an expression is used in any sense other than that which it has in ordinary speech, a question of law arises: Issa v Burwood Council (2005) 137 LGERA 221; [2005] NSWCA 38 at [18] citing Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1986] HCA 36 at 397. Even if these words have technical meanings in the funeral industry that does not mean that these apply in the LEP context.

29. Al-Mabarat was a Class 1 merits appeal against the refusal of a DA for a cemetery and service hall. The conduct of Class 1 matters and the issues that arise are quite different to judicial review proceedings. Submitting that the issue of characterisation of use arose in Al-Mabarat and here is insufficient to support expert evidence as being necessary. It does not follow that it is appropriate for the Court, in the context of these Class 4 proceedings, to consider funeral expert evidence in circumstances where the terms have an ordinary English meaning and where there is nothing to suggest that some technical meaning of the words was intended. In this regard, “funeral” is defined in the Macquarie Dictionary (online at 15 July 2021) as “the ceremonies connected with the disposition of the body of a dead person”. Understood in that way, there is no reason why “funeral” ceremonies may not include a “memorial service”, so long as it is connected to the disposal of a dead body (ie by burial or cremation).

30. In relation to the second purpose of understanding different elements of the approved use, expert evidence for that purpose is unnecessary as these are questions of fact and degree: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409.

31. Questions 2(b)-(f) of the further amended notice of motion involve a trespass onto the role of the Court. Although the ultimate issue rule has been abolished by s 80 of the Evidence Act 1995 (NSW), in R v GK (2001) 53 NSWLR 317; [2001] NSWCCA 413 Mason P observed at [40] that:

In New South Wales opinion evidence is not inadmissible only because it is about the fact in issue or an ultimate issue (Evidence Act, s 80(a)). However, judges should exercise particular scrutiny when experts move close to the ultimate issue, less they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions.

See also Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1263 at [6]-[28] (a case concerned with the admissibility of expert evidence about whether particular activities on the land were “agriculture” within the meaning of the Tweed LEP); Hrdavec v State of New South Wales [2018] NSWSC 1081 at [20]-[27].

32. Questions 2(b)-(d) ask a funeral industry expert to review DA documents to provide an opinion to the trial judge about the carrying out of funerals. This a pure question of fact which the Court can determine. Expert evidence is not required to interpret documents. The circumstances are similar to Shellharbour CA. Further, this type of evidence intrudes onto the role of the Court, see Hrdavec v State of New South Wales at [21]-[23].

33. In relation to questions 2(e) and (f), noting that no mortuary use has been approved in either consent, a funeral industry expert is no better equipped than a judge to determine whether there are independent uses based on the DA documents.

Ecological expert unnecessary in relation to question 3(a)

34. To succeed on the BDAR ground, the Applicant will need to demonstrate that more than 1 ha of native vegetation and land within the Biodiversity Values Map will have to be cleared. Fry agrees that question 3(b) concerning the Stage 2 consent can be the subject of expert ecological evidence. The Concept Plan and Stage 1 consent, the subject of question 3(a), does not require the clearing of vegetation so that the question whether or not a BDAR is required does not arise at that stage and the evidence of an ecologist is not necessary. The Concept Plan approved, being the Site Masterplan dated 11 December 2018, does not authorise any development in accordance with s 4.22(4) of the EPA Act. No approval has been given for native vegetation clearance by the Concept Plan and Stage 1 consent. The concept approval does not “involve” vegetation clearing. The Applicant’s approach gives s 4.22(5) insufficient work to do. Nor does the first consent affect the later assessment of Stage 2 impacts, including assessment for the purposes of the Biodiversity Regulation. The Applicant’s approach would result in the impacts of Stage 2 being assessed twice. LDM CA which considered cl 7 of State Environmental Planning Policy No 55—Remediation of Land (1998) at [101], [103]-[104] supports Fry’s approach to s 4.22. Uniting Church is clearly distinguishable.

Consideration

35. Rule 31.17 of the UCPR identifies that the purposes of Pt 31 Div 2 are to ensure that only expert evidence that is reasonably necessary is placed before a court inter alia. In Shellharbour CA Giles JA stated at [35]:

The primary purpose of the rule is to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap. That evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.

36. Generally documents considered by the Court in judicial review proceedings are limited to those before a decision-maker at the time a decision is made: Caldera Environment Centre Inc v Tweed Shire Council [1993] NSWLEC 102 at 10 (Caldera) and Haughton v Minister for Planning and Macquarie Generation (2011) 185 LGERA 373; [2011] NSWLEC 217 at [196] cited in Mullaley Gas and Pipeline Accord Inc (MGPA) (Mullaley Gas INC9894330) v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 24. Caldera identifies some exceptions at 10 which are not relevant as the grounds of review here are not reflected in that case.

37. Whether expert evidence or any other evidence not before the decision-maker is reasonably necessary depends in large part on the grounds of review. In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184 at [42], extracted in Olivia Ross v Patrick Lane [2021] NSWLEC 61 at [20], Preston CJ usefully stated:

As was noted in Arnold v Minister Administering the Water Management Act 2000 (No 6) at [123], “the admissibility of evidence not actually or constructively before the decision-maker on an application for judicial review of an administrative decision depends on the ground of review, the relevant issue and the nature of the evidence.” See also Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574; [2001] FCA 1700 at [38]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [459]. There is no general rule against the admission of expert evidence in judicial review cases: “everything depends upon the grounds of review and the circumstances of the case”: Australian Retailers Association v Reserve Bank of Australia at [459].

Funeral and cemeteries consultant

38. Considering these principles in the context of this matter, in relation to the prohibited development grounds in these Class 4 proceedings, the Court is being asked to determine a jurisdictional fact namely to characterise the use approved by the Council in the context of the Maitland LEP to determine whether what has been approved is permissible or prohibited development and further, the dominant and ancillary purpose of what has been approved. Material not before the Council is permissible where the issue of characterisation arises, as occurred in Pallas Newco Pty Ltd v Votraint No 1066 Pty Ltd (2003) 129 LGERA 234; [2003] NSWLEC 232 at first instance, an approach upheld on appeal in Pallas Newco CA at [86], [88]. The characterisation issues that arise are broadly similar to those in Al-Mabarat, a Class 1 merits appeal. The same definitions of “crematorium” and “funeral home” in the Goulburn Mulwaree Local Environmental Plan 2009 (Goulburn Mulwaree LEP) were considered at length in order to characterise the purpose of a proposed development to determine its permissibility. A cemetery expert inter alia was relied on by the council in that matter. A broadly similar process is necessary in this case albeit that process occurs in Class 4 proceedings.

39. It is fair to describe the definitions of “crematorium” and “funeral home” in the Maitland LEP as somewhat opaque with no “bright line” concerning their operation being immediately apparent, given both refer to the possibility of a building for the conduct of memorial services. In the case of a funeral home, a building can be used for funerals and memorial services. The difficulty of determining how these definitions operate is highlighted by the last two sentences of Fry’s submissions set out in [29] above which suggests a substantial overlap between them. This suggests that answers from a funeral and cemeteries consultant on questions 2(d)-(f) are permissible, relevant and reasonably necessary for the resolution of the matters in dispute.

40. Having found the above, there is some difficulty in considering questions 2(a)-(c) which seek advice from a funeral and cemeteries consultant concerning the meaning of “funeral” and “memorial service” in the funeral industry and asks whether the development approved in the two SEEs allows funerals as that term is understood in the funeral services industry. I agree with Fry that there is no particular reason to attribute a technical meaning to these terms. These definitions are found in the Standard Instrument—Principal Local Environmental Plan (2006) and can be expected to appear in LEPs throughout New South Wales, as was the case with the Goulburn Mulwaree LEP in Al-Mabarat. It is the application of the four definitions in the Maitland LEP in issue to the development approved that is likely to prove complicated at the hearing, which is what questions 2(d)-(f) can inform.

41. It is highly likely that in answering questions 2(d)-(f), questions 2(a)-(c) will also be answered whether explicitly or implicitly by a funeral industry expert as these essentially underpin questions 2(d)-(f). In these circumstances it is appropriate that all questions be answered.

42. I observe that allowing the Applicant to rely on expert evidence on the questions posed does not bind the trial judge to apply that evidence in any way.

Ecologist

43. There is no dispute that ecological evidence can be adduced in relation to question 3(b) and I agree that the possible extent of clearing of native vegetation by the development approved in Stage 2 and whether a BDAR is required, a jurisdictional fact, can be the subject of expert evidence.

44. Whether ecological evidence is needed to answer question 3(a) requires the determination of an issue that is better left to the final hearing, in my view, as it concerns the construction of s 4.22 of the EPA Act, particularly the intersection of subs (4) and (5) and the documents prepared in support of the two consents and the Council’s approvals. The parties pray in aid different authorities which must also be reconciled or distinguished. According to the Applicant the additional evidence of an ecologist in relation to the Concept Plan over and above the Stage 2 consent is minimal, as appeared to be the case when the approved Concept Plan and the Stage 2 consent plan were compared during the hearing. Although not ideal to have evidence prepared which may not ultimately be relevant, that appears to be the best course at this stage of the proceedings. Accordingly I consider an ecologist can also address question 3(a).

Order

45. The Court orders:

1. Prayers 2 and 3 in the further amended notice of motion dated 24 June 2021 are made.

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Decision last updated: 22 July 2021