Harris v Hurstville City Council - [2012] NSWLEC 1224

Land and Environment Court

New South Wales

Medium Neutral Citation: Harris v Hurstville City Council [2012] NSWLEC 1224
Hearing dates: 13 August 2012
Decision date: 15 August 2012
Jurisdiction: Class 1
Before: Hussey C
Decision:
(1)The appeal is upheld.
(2)Development consent is granted to development application No 11/DA-242 for the use of the premises at 333 Stoney Creek Road Kingsgrove as a funeral home and mortuary subject to the conditions in Annexure A.
(3)The exhibits may be returned except 1, 6, 7, 10, A and B.

Catchwords: DEVELOPMENT APPLICATION - Mortuary use, suitability of site, access/parking, noise amenity, apprehension of use, public interest
Legislation Cited: Hurstville Local Environmental Plan 1994
Draft Hurstville Local Environmental Plan 2011
Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Cullen v Blacktown City Council & Ors [2005] NSWLEC 516 (23 August 2005)
New Canterbury Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003)
Category: Principal judgment
Parties:
Scott Harris (Applicant)
Hurstville City Council (Respondent)
Representation:
Counsel
Mr J Maston (Applicant)

Ms J Hewitt (Respondent)
Solicitors
Cameron Gillingham Boyd Solicitors (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 10244 of 2012

Judgment

This appeal is against council's refusal of a development application for the conversion of an existing shop containing a funeral home at 333 Stoney Creek Road Kingsgrove to include a mortuary. The application was refused on the basis of inadequate parking and the impact on the amenity of the area.

Subsequently for the appeal, the following contentions were identified:

Suitability of parking arrangements, particularly the reliance on leasing an adjoining property car space
Impacts on adjoining properties in terms of amenity, noise, privacy and traffic
Adequacy of information; partially in terms of the operation of the mortuary
Public interest.

The proceedings commenced by way of a s 34 conference and that involved a view and hearing objections. Following this, the applicant amended the proposal to reduce the impact on neighbouring properties and also updated the Operational Management Plan (OMP).

This resulted in the traffic/parking issues being agreed, along with the amenity impacts being considered satisfactory. Consequently, the parties agreed to conditions of consent but council did not give instructions to enter a s34 Agreement due apparently to the number of objections lodged. Therefore the s 34 Conference was terminated and it proceeded for determination.

The proposal

The revised proposal involves conversion of the premises to provide for:

Foyer entry off Stoney Creek Road that includes disable access ramp

Showroom for display of coffins

Two (2) offices

Cool room for storage of bodies. Maximum of 15 bodies at any one time

Printing room

Kitchen

Two (2) toilets, one accessible

Mortuary room

Internal car park for two (2) vehicles with access of rear laneway

External car park on adjoining property (No 331)

Rear lane access for entry for hearses and delivery van

Signage to front elevation of building

Removal of two roller shutter doors to rear laneway with one to be bricked in and the other…

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: [2012] NSWLEC 1224
Decision Date: 15 August 2012

CaseChat Overview and Summary

In Harris v Hurstville City Council, the appellant, Mr Harris, sought development consent for a funeral home and mortuary at the premises located at 333 Stoney Creek Road, Kingsgrove. The respondent, Hurstville City Council, denied the application, leading to Mr Harris appealing to the Land and Environment Court. The central issue before the court was whether the denial of development consent was unreasonable, focusing on whether the proposed use of the premises as a funeral home and mortuary constituted an unacceptable impact on the surrounding community.

The court considered several factors, including the suitability of the site for such a use, the council's planning policies, and the potential impact on the neighbouring properties. It examined the statutory criteria set out in the Environmental Planning and Assessment Act 1979, particularly focusing on the suitability and compatibility of the proposed use with the surrounding area. The court found that the council's refusal to grant development consent was unreasonable. It held that the appellant had demonstrated a suitable site for a funeral home and mortuary, and the council had not provided sufficient evidence to support its contention that the development would have unacceptable impacts on the community.

Accordingly, the appeal was upheld, and development consent was granted to the appellant for the use of the premises as a funeral home and mortuary, subject to the conditions outlined in Annexure A. The exhibits in the case were ordered to be returned, except for specific documents identified as 1, 6, 7, 10, A, and B.

Orders

Orders of the court

(1)The appeal is upheld.

(2)Development consent is granted to development application No 11/DA-242 for the use of the premises at 333 Stoney Creek Road Kingsgrove as a funeral home and mortuary subject to the conditions in Annexure A.

(3)The exhibits may be returned except 1, 6, 7, 10, A and B.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Harris v Hurstville City Council [2012] NSWLEC 1224
Hearing dates:	13 August 2012
Decision date:	15 August 2012
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	(1)The appeal is upheld. (2)Development consent is granted to development application No 11/DA-242 for the use of the premises at 333 Stoney Creek Road Kingsgrove as a funeral home and mortuary subject to the conditions in Annexure A. (3)The exhibits may be returned except 1, 6, 7, 10, A and B.
Catchwords:	DEVELOPMENT APPLICATION - Mortuary use, suitability of site, access/parking, noise amenity, apprehension of use, public interest
Legislation Cited:	Hurstville Local Environmental Plan 1994 Draft Hurstville Local Environmental Plan 2011
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Cullen v Blacktown City Council & Ors [2005] NSWLEC 516 (23 August 2005) New Canterbury Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003)
Category:	Principal judgment
Parties:	Scott Harris (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel Mr J Maston (Applicant) Ms J Hewitt (Respondent) Solicitors Cameron Gillingham Boyd Solicitors (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	10244 of 2012