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

1. 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.

1. 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.

1. 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).

1. 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

1. 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 to be replaced.

1. The operational matters involve:

• The proposed number of employees is a maximum of two (2) at any given time.
• The proposed hours of operations are indicated as follows:

(a)The general staff operating hours are from 8.00am to 8.00pm Monday to Friday.

(b)Staff extended hours are from 8.00 am to 8.00 pm Saturday and Sunday.

(c)General access hours are 7.00 am to 10.00 pm Monday to Sunday (7 days); and

(d)Emergency access hours 10.00 pm to 7.00 am Monday to Sunday (7 days).

• There are no funeral services or viewings of deceased persons proposed to be carried out on site at any time.
• The delivery of bodies will be by a delivery van (usually a Toyota Hi-Ace van). This will be via the rear roller door off the rear laneway. Bodies will also be loaded into a hearse for transport to funeral services or burial/cremation.

The site

1. The subject property description is Lot 10 and Lot 11 DP 12459. It is irregular in shape and consists of three (3) attached commercial premises (shops) built to zero side boundaries and known as Lot 10, 11 and 12. The funeral parlour is to occupy Lots 10 and 11 comprising of two shop spaces with a combined area of 240.13 sq m.

1. The subject premises adjoin a furniture and bedding store on the south western side and a comic book store on the north eastern side. The site is located on the south eastern side of the street and adjoins an unnamed laneway from the rear, which is approximately 3.6 m in width. There are existing dwellings on the opposite side of the laneway and at the end of the laneway and this land is zoned residential.

Planning controls

1. The site is subject to the provisions of the Hurstville Local Environmental Plan 1994 (LEP), under which it is in Zone 3C - Business Centre. The proposal is permissible as either "business premises" or as an innominate use.

1. The LEP zone objectives are:

(a) to maintain a commercial and retail focus for larger scale commercial precincts,

(b) to allow for residential development in mixed use buildings, with non-residential uses on at least the ground level and residential uses above, so as to promote the vitality of business centres, and

(c) to provide opportunities for associated development such as parking, service industries and the like.

1. The Draft Hurstville Local Environmental Plan 2011 has been exhibited and is before the Minister for gazettal. It maintains the permissibility of the current proposal

1. Also relevant are the car parking controls in DCP No 1 - Section 3.0 - car parking.

The evidence

1. Detailed evidence was presented by:

• Mr J CoadyTraffic consultant for the applicant
• Mr C McClarenTraffic consultant for the respondent
• Mr G FalsoPlanning consultant for the Respondent
• Mr B DaintyPlanning consultant for the Applicant

1. A considerable number of written objections were presented and those were considered along with the oral evidence.

Traffic parking

1. The primary parking issue concerned the adequacy and long term maintenance of car parking due to the applicant's reliance on 1 external car space on a neighbouring property. This car space is located at the eastern end of the rear public land.

1. The traffic consultants agreed that providing this external car space was securely tied to the consent, it was satisfactory in operational terms.

1. The parties have subsequently agreed that this car space be secured by way of either an easement or appropriate lease. This is to be covered by a deferred commencement condition.

1. The other traffic issues concerned amenity impacts from noise, privacy and traffic, arising from use of the rear land. The traffic experts agreed that the proposed development, as modified with no night -time use will not result in any material traffic impacts so as to cause adverse amenity.

1. Furthermore, they agree that:

• The arrangements for removal of waste from the subject property is satisfactory
• The revised vehicle access arrangements enabled by the relocated entrance and new roller door off the rear lane should be satisfactory
• That deliveries of coffins to the premises will continue to be carried out in the same way that coffins are delivered under the existing consent, which is that coffins are transported to the premises generally in a covered ute or van which sometimes parks in the laneway at the rear of the premises an sometimes in Stoney Creek Road or in Donald Street. Coffins are carried from those vehicles to the premises through either the front door or the back door. This delivery is variable but rarely occurs more than once a week.

Planning matters

1. Whilst Mr Daintry supports the conditional approval of the application, Mr Falson raised some concerns about the access arrangements, particularly the intended "emergency access" during the night time period. Insofar as this "emergency use" involved the occasional delivery of a body to the premises during the night-time period (i.e. probably a maximum of one delivery per month), this aspect of the proposal was deleted by the applicant.

1. In the ultimate, Mr Falzon did not raise any planning issues and agreed with the conditions of consent.

Public Interest

1. The determination of this matter raised several aspects of public interest considerations, particularly the competition between the approval of a complying development relative to a considerable number of objections.

1. These objections were lodged against the initial application and further objections lodged against the modified proposal. Insofar as there are a considerable number, many of which are in a pro forma, they can be summarised in the following categories:

• The mortuary is offensive and should be located in another zone
• The parking is inadequate
• The hours of operation are likely to cause adverse amenity impacts
• Noise and light spill onto adjoining properties.

1. Having considered these objections it is relevant to note the findings of McClelland CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (revised 5/5/2005). McClelland CJ said:

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must be generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

1. Insofar as there was a significant number of objections regarding traffic/parking, I do not consider the revised proposal, which now does not involve "viewing" sessions or late night activities, will make any material change to the existing traffic/parking situation that currently exists.

1. I note that the existing funeral home markets coffins and that these are transported to and from the site in vans and hearses. But this is allowed because it is via public roads and a public laneway. I do not consider the change in use significantly alters this situation.

1. It seems to me that the revised internal layout for the mortuary enables the delivery vehicles to manoeuvre inside the building and the body transfers to be undertaken within the enclosed building. This should not cause any substantive amenity impacts.

1. I accept that the most likely impacted premises will be Dr and Mrs Gordons' adjoining residence at 108 Donald Street, which shares the laneway for access to its rear yard and for maintenance of vegetation along the boundary fence. This property is at the interface with the zoning change to residential.

1. However, the roller door to No 108 is in the order of 2 m high and the adjoining cabana is effectively screened by the fence from direct viewing of the door of the subject building. Therefore, I think that the configuration of the dwelling layout and ancillary structure restricts, to a reasonable level, direct viewing of commercial, or any vehicles using the lane to enter the subject property.

1. In this regard, I note that one aspect of the objection was the nuisance caused by the existing security light, but conditions of consent require this to be shielded.

1. An associated concern was about light spill from vehicles. However as any night - time use is now restricted, and taking into account the existing blocking effect of the fences, I do not consider this is an aspect that warrants refusal.

1. Another objection concerns the actual mortuary activity involving the use of chemicals and possible adverse environmental impacts. But I understand that these activities are strictly controlled in accordance with the Public Health Act and Regulations and Protection of the Environment. Assuming compliance with these controls, I do not then think the proposal should be refused on the basis of these concerns, because I do not consider there should be offensive odours and fumes emitted.

1. In addition to this, strong sentiments were expressed about the possible psychological impacts on the residents of No 108, including the teenage children, based on their apprehensions about the activities of the mortuary. Whilst reference was made to various doctors' opinions and speculation about community reaction, no expert evidence in accordance with Court Practice was provided to the Court in this regard. I therefore give these objections diminished weight, in accordance with the following authorities.

1. These types of psychological impact concerns were addressed to some extent in the matter of Cullen v Blacktown City Council & Ors [2005] NSWLEC 516 (23 August 2005) where that appeal concerned the establishment of a funeral parlour near a residential property and from the expert evidence on possible psychological impacts, Commissioner Moore said:

24 It is, as I also understand their evidence, the position that, if the cause of that apprehension is to depart, then the symptoms themselves will, within a comparatively short period of time, also disappear.

25 It is put on behalf of the Xeureb family the fact that they have been long-term residents in their home and the cause of their apprehension is coming to them rather than the other way around ought cause me to reject the application.

26 It is my view that the necessary inference that follows from the evidence from the psychologists is that there must be a falling within that five per cent of susceptibility or vulnerability for those feelings of apprehension to be triggered.

27 I am satisfied that that apprehension is held by them and genuinely held by them. The question I need to attend to is whether or not it is reasonable to impose that apprehension upon the totality of the planning system and assume that it ought be regarded as being held on behalf of the whole community.

28 Having stated the matter in that fashion it would seem tome that one is inevitable let to the conclusion - consistent with the conclusion on those matters of principle reached by Nott C in H N Olson Pty Limited v Rockdale City Council (2005) NSWLEC 361 - that such apprehensions should not lead to the refusal of an application.

29 Nonetheless, the feelings are quite obviously genuine and legitimately felt and there may be real some impact on the family. To that extent, they impacts are impacts which I should take into account but are one which would not, in themselves, warrant refusal and, to the extent that they might make a contribution to refusal, that contribution would only be most minor in any event.

1. In addition to this I have considered Justice Lloyd's findings on amenity in New Canterbury Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003) where he said:

60 In analysing the substance of such contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate (Venus Enterprises at 69, Fairfield City Council v Liu Lonza & Beauty Holdings, NSWCA, Mason P and Dunford AJA, 17 February 1997, unreported). Indeed, as Mr Officer QC submitted, it is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds (Venus Enterprises per Cripps J at 70, see also Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 349 per Cowdroy J). Such antagonism would amount to a detrimental social impact (Dixon v Burwood Council [2002] NSWLEC 190 at [66] per Pain J). These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak at 237, with the caution that there is room for opinions to differ in weighing the same objective criteria.

61 In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any weight if there is no objective, specified, concrete, observable likely consequence of the establishment of the proposed use.

62 A fear of concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP & A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is not evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]).

63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "...the demonstrable social effect of a particular ... use is relevant under s 90(1)(d) [now s 79C]" (see also Dixon at [48]).

1. The decision in New Century Developments makes the following points on amenity:

• Issues of taste and morality are not necessarily set aside in the consideration of amenity,
• If there is such great offence to a large portion of the community then this may be a valid consideration,
• There is room for opinions to differ in weighting the same objective criteria,
• Evidence on amenity impacts must be objectively assessed before a finding can be made of an adverse effect on the amenity of the area.
• Little, if any, weight can be given to amenity impacts if there is no objective, specific, concrete, observable likely consequence,
• A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant
• A Court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development.

1. Following these findings, I do not consider there was specific evidence in this matter that demonstrated widespread offence to the community arising from the limited expansion and change of use of the funeral parlour. Furthermore, I do not consider there was any compelling, rational basis established by the residents of No 108 Donald Street, that warrants the refusal of this use.

1. In the ultimate, I note that all the issues raised by council have been agreed after consideration of the expert evidence and council makes no submissions against the granting of conditional consent to this application.

1. Insofar as I have carefully considered the objections, I am satisfied that in the circumstances, that determining weight should be given to this complying development and consent be granted, subject to conditions that include the revised times of operation, so as to maintain a reasonable level of amenity for the neighbourhood.

Court orders

1. The Court orders that:

(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.

R Hussey

Commissioner of the Court

Decision last updated: 15 August 2012