Invocare Australia Pty Limited v Blacktown City Council

[2024] NSWLEC 1044

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Invocare Australia Pty Limited v Blacktown City Council [2024] NSWLEC 1044

Hearing dates:

Conciliation Conference on 2 February 2024

Date of orders:

13 February 2024

Decision date:

13 February 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is granted leave to rely upon the Amended Development Application.

(2) The appeal is upheld.

(3)   Development Application No. DA-23-00294, as amended, for construction of a new chapel, administrative and lounge buildings, including the proposed widening of an existing internal access to Windsor Road at 712 Windsor Road, Kellyville Ridge, is determined by the grant of consent, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – staged development – construction of new buildings and associated works – continued use as a cemetery and crematorium - upgrade to access to classified road – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.2, 7.3, 7.7

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7, 8.15

Fisheries Management Act 1994

Land and Environment Court Act 1979, s 34

National Parks Act 1974, s 86

Roads Act 1993, ss 87, 138

Water Management Act 2000

Blacktown Local Environmental Plan 2015, cll 4.3, 4.4, 5.10

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 6.6, 6.7

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

State Environmental Planning Policy (Vegetation in Non-Rural Area) 2017

Category:

Principal judgment

Parties:

Invocare Australia Pty Limited (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
E Whitney (Solicitor) (Applicant)
M Fozzard (Respondent)

Solicitors:
Mills Oakley (Applicant)
Bilias & Associates, Solicitors & Barristers (Respondent)

File Number(s):

2023/180721

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No DA-23-00294 for the staged construction of three new buildings (the Proposed Development) at Castlebrook Memorial Park located at 712 Windsor Road, Kellyville Ridge, legally described as Lot 11 DP 1173804, Lot 10 DP 1173804 and Lot 5003 DP 1158929 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 February 2024. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to conditions.

4. The parties’ experts agree that all contentions raised in the Respondent’s Statement of Facts and Contentions (SOFAC) filed on 21 July 2023 have been resolved by the preparation of the amended plans and documents and the agreed conditions of consent.

5. The Development Application, as amended, seeks consent for the staged construction and use of three new buildings (chapel, lounge building and administration building), carparking and extension to the existing internal roads (Stage 1), and an upgrade to the Windsor Road access (Stage 2) to the existing Castlebrook Memorial Park. The parties agree that the amendments are minor and the Respondent does not seek an order for costs pursuant to s 8.15(3) of the EPA Act.

6. Relevantly, the Proposed Development requires approval from Transport for NSW (TfNSW) pursuant to s 87 of the Roads Act 1993 (Roads Act) due to the proposed upgrades and signalisation of the Windsor Road/White Hart Drive/Castlebrook Memorial Park access intersection (Windsor Road access). This approval is distinct from approval pursuant to s 138 of the Roads Act, which would otherwise implicate that the Development Application is “integrated development” as defined in s 4.46 of the EPA Act.

7. Accordingly, proposed consent condition 1.7.1 provides that the Applicant is required to obtain approval pursuant to s 87 of the Roads Act prior to the issue of a construction certificate and prior to commencement of any works to the Windsor Road access.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement.

11. Development for the purpose of “cemetery and crematorium” development is permitted in the SP1 Special Activities zone being the zoning of the Site pursuant to Land Zoning Map (Sheet LZN_012) in the Blacktown Local Environmental Plan 2015 (BLEP). The proposed chapel, function rooms and kitchen are an ancillary use of the Site, none of which would be operational outside the predominant use of the Site as a cemetery and crematorium.

12. Between 11 and 25 May 2023, the Development Application was notified by the Respondent. No submissions were made in response to the notification.

13. The land upon which the Site is located is not subject to a maximum height control and accordingly, the height of building development standard pursuant to cl 4.3 of the BLEP does not apply.

14. Similarly, the land upon which the Site is located is not subject to a maximum floor space ratio (FSR) control and accordingly, the FSR development standard pursuant to cl 4.4(2) of the BLEP does not apply.

15. The Site is not a heritage item nor located within nearby heritage items nor located within a heritage conservation area. However, the Site does contain a heritage item, a war memorial known as “Battle of Vinegar Hill” (Memorial), identified in Heritage Map Sheet HER_012 of the BLEP. Accordingly, cl 5.10 of the BLEP is enlivened by the Proposed Development. The Memorial is not of antiquated, sensitive or fragile construction and unlikely to be affected by the Proposed Development, being located approximately 200 metres away from the Proposed Development.

16. Access to the Site is via a classified road and the terms of s 2.119(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) provides that:

(2)  The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

17. The Site access operates via a signalised ingress and egress road off Windsor Road (to the south) and the Site adjoins Schofields Road (to the east) and both roads are classified roads. The Proposed Development adequately addresses the requirements of s 2.119(2) for the following reasons:

1. The Traffic Impact Assessment prepared by SLR Consulting (Traffic Report) at Tab 18 of the Class 1 Application, concludes that the proposed widening will in fact improve vehicular access to and from the Site and is not likely to detract from the safety and efficacy of the on-going operation of Windsor Road (Figure 3 and pp 21-22 of the Traffic Report);

2. The response from TfNSW dated 19 January 2023, Appendix H to the Traffic Report, confirms access to the Site via Schofields Road is not viable due to poor sight line “which could lead to serious crash of vehicles with pedestrians and cyclist[s]”;

3. The response from TfNSW dated 21 November 2023 regarding the treatment of the Windsor Road access has been considered and incorporated into the conditions of consent at condition 4.2;

4. Alternate road access via Heathfield Street (a non-classified road) has already been considered in a previous development application (DA22-001134) for “alterations to the existing chapel and crematorium, a new administration building, a new chapel, a new car parking area for an additional 53 cars and a new “exit only” driveway fronting Heathfield Street at the intersection of Vinegar Hill Road that will service a new private road within the memorial park” previously lodged with Council. Due to a number of public submissions being made to that development application regarding the proposed access with respect to local traffic impacts on local road network, this development application was withdrawn and the Proposed Development (maintaining the existing Windsor Road access) was submitted to Council (p 6 of the Statement of Environmental Effects (SEE) prepared by SLR Consulting at Tab 6 of the Class 1 Application).

18. The Court is satisfied that the jurisdictional prerequisites set out in the terms of s 2.119 of the SEPP Transport and Infrastructure are satisfied.

19. Portions of the Site are mapped on the Biodiversity Values Map, and ss 7.2 and 7.3 of the Biodiversity Conservation Act 2016 (BC Act) provide that any reference to development that is “likely to significantly affect threatened species” includes critically endangered ecological communities (CEEC). The Proposed Development proposes 0.22ha of clearing vegetation comprising the CEEC identified onsite and the Biodiversity Development Assessment Report (BDAR) prepared by Narla Environmental, included in the Development Application in accordance with s 7.7 of the BC Act, characterises these areas as Cumberland Plan Woodland in the Sydney Basin Bioregion CEEC (see Tab 11 of the Class 1 Application). See also SEE prepared by SLR Consulting (Tab 6 of the Class 1 Application) pp 20 (Fig 8 Map) and 28 (Fig 14 Map).

20. The proposed development satisfies section 7.12(2) of the BC Act given that:

1. a BDAR has been provided; and

2. proposed condition 3.2.1 of the consent provides that the Applicant is to purchase and retire three (3) ecosystem credits from registered Biodiversity Stewardship Sites.

21. Section 86 of the National Parks Act 1974 (National Parks Act) provides that “[a] person must not harm an Aboriginal object”. Relevantly, it is proposed to develop a portion of the Site that has never been developed before, therefore, the Development Application includes an Aboriginal Heritage Due Diligence Assessment Report, at Tab 9 of the Class 1 Application, which concludes at p 33 that “the proposed development is not expected to impact on any Aboriginal sites or potential intact archaeological deposits”.

22. There are a number of provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) that provide jurisdictional prerequisites. Firstly, Ch 2 of the SEPP Biodiversity and Conservation provides that Council approval is required for the clearing of vegetation in non-rural areas and the Site is not mapped within an “Allowable Clearing Area” in accordance with the, now repealed, State Environmental Planning Policy (Vegetation in Non-Rural Area) 2017 Land Application Map, Sheet LAP_002).

23. Accordingly, the Development Application includes an Arboricultural Impact Assessment prepared by Arbor Logix and the BDAR at Tabs 10 and 11 of the Class 1 Application, which both support the clearing required to accommodate the Proposed Development.

24. Chapter 6 of the SEPP Biodiversity and Conservation provides that Council must have regard to development standards specific to development in regulated water catchments and the Site is mapped as being within the Hawkesbury-Nepean catchment as defined in the SEPP Biodiversity and Conservation pursuant to the Hawkesbury-Nepean Catchment Map, Sheet HNC_001.

25. Section 6.6(2) of the SEPP Biodiversity and Conservation provides that the consent authority must be satisfied that the effect on the quality of water entering a natural waterbody will be neutral or beneficial and that the impact on water flow in a natural waterbody will be minimised. The parties agree that the proposed stormwater arrangements, which includes a diversion swale and two onsite stormwater detention (OSD) tanks, will ensure stormwater runoff quantities are dispersed appropriately and reused. There are no natural waterbodies on the Site. Stormwater captured within the three sub-catchment areas onsite is either re-routed (by the diversion swale) or collected for re-use (by the OSDs).

26. Parts 6 and 7 of the Stormwater Management Report (Rev 3) prepared by Warren Smith Consulting Engineering and filed with the s 34 Agreement on 1 February 2024 at Tab 6, details the proposed stormwater drainage design and water treatment plan which goes to water quality. In addition, proposed conditions 2.5 and 3.10 of the consent state that water collected by the OSDs should be re-used for non-potable purposes, namely, toilet flushing, landscape watering and washdown.

27. Clause 6.7(2) of the SEPP Biodiversity and Conservation deals with aquatic ecology and the consent authority can be satisfied that:

1. there is minimal adverse impact on terrestrial/aquatic/migratory animals or vegetation because the impact mitigation and minimisation measures identified in Table 16 of the BDAR (Tab 11 of the Class 1 Application) ensure minimal adverse impacts on animals and vegetation;

2. there is no adverse impact on aquatic reserves because there is no aquatic reserve on the Site;

3. a controlled activity approval pursuant to the Water Management Act 2000 has been obtained and/or a permit pursuant to the Fisheries Management Act 1994 has been obtained if riparian vegetation is proposed to be cleared because the Proposed Development is not a controlled activity nor does riparian vegetation exist onsite;

4. there is minimal erosion of land abutting a natural waterbody because there is no natural waterbody on the Site to be considered; and

5. any impacts on wetlands is minimised because the Site is not a wetland.

28. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties in accordance with this judgment.

29. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

30. The Court notes:

1. The Respondent, Blacktown City Council, as the relevant consent authority, has approved the amendment of Development Application No. DA-23-00294 pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), in accordance with the following plans and documents (collectively, the 'Amended Development Application'):

1. Architectural Plans (Up to Rev H) prepared by RFA Architects:

#	Plan name	Rev	Date
A-1010	Proposed Masterplan – Site Analysis	G	20 September 2023
A-1020	Proposed Site Plan – Cut and Fill	G	20 September 2023
A-2000	Proposed Masterplan	H	20 September 2023
A-2001	Proposed Site Plan – Buildings	G	20 September 2023
A-2002	Proposed Site Plan – Road Widening	H	29 September 2023
A-2010	Proposed Site Plan – Buildings	H	9 October 2023
A-2101	Proposed Site Plan – Chapel	G	20 September 2023
A-2102	Proposed Site Plan – Lounge	F	20 September 2023
A-2103	Proposed Site Plan – Admin	F	20 September 2023
A-2110	Proposed Ground Floor Plan – Chapel	H	9 October 2023
A-2120	Proposed Ground Floor Plan –Lounge	F	20 September 2023
A-2121	Proposed Ground Floor Plan –Admin	F	20 September 2023
A-3001	Proposed North and East Elevations – Lounge	F	20 September 2023
A-3002	Proposed South and West Elevations – Lounge	F	20 September 2023
A-3010	Proposed North and East Elevations – Chapel	F	20 September 2023
A-3011	Proposed South and West Elevations – Chapel	H	9 October 2023
A-3020	Proposed North and East Elevations – Admin	G	20 September 2023
A-3021	Proposed South and West Elevations – Admin	F	20 September 2023
A-4001	Proposed Sections – Lounge Building	F	20 September 2023
A-4010	Proposed Sections – Chapel Building	F	20 September 2023
A-4020	Proposed Sections – Admin Building	F	20 September 2023
A-5001	Schedule of Materials and Finishes	G	20 September 2023
A-5200	Retaining Wall Sections	C	20 September 2023
A-6001	Photomontage – Lounge	F	20 September 2023
A-6010	Photomontage – Chapel	F	20 September 2023
A-6020	Photomontage – Admin	F	20 September 2023
A-7001	Neighbour Notification Plans – Masterplan	C	20 September 2023
A-7002	Neighbour Notification Plans – New Chapel Building	C	20 September 2023
A-7003	Neighbour Notification Plans – New Lounge Building	C	20 September 2023
A-7004	Neighbour Notification Plans – New Admin Building	C	20 September 2023

2. Landscape Plans (Up to Rev G) prepared by EMM Consulting Pty Ltd:

#	Plan name	Rev	Date
L01	Site Context & Report	G	29 September 2023
L02	Overall Site Plan	G	29 September 2023
L03	Landscape Plan	G	29 September 2023
L04	Landscape Plan	G	29 September 2023
L05	Landscape Plan	G	29 September 2023

3. Swept Path Assessment Plans prepared by SLR Consulting:

#	Plan name	Rev	Date
D0100	RCV (Front Load) Swept Path Assessment	D	19 September 2023
D0101	Hearse Swept Path Assessment	D	19 September 2023
D0103	Access Proposal RCV Swept Path Assessment	B	19 September 2023
D0104	Access Proposal B99 Swept Path Assessment	B	19 September 2023
D0105	Access Proposal Fire Appliance Swept Path Assessment	A	19 September 2023

4. Civil and Stormwater Plans – Main Development Area (Up to Rev 3) prepared by Warren Smith Consulting Engineers:

#	Plan name	Rev	Date
C1.1.01	Cover sheet	2	22 September 2023
C1.3.02	Bulk Earthworks Cut and Fill Plan	1	22 September 2023
C1.4.01	Siteworks Plan	3	29 November 2023
C1.4.11	Typical Sections – Sheet 1	1	22 September 2023
C1.4.12	Typical Sections – Sheet 2	1	22 September 2023
C1.4.51	Siteworks Details	1	22 September 2023
C1.6.01	Stormwater Layout Plans – Sheet 1	3	29 November 2023
C1.6.02	Stormwater Layout Plans – Sheet 2	2	29 November 2023
C1.6.07	Stormwater Pit Schedule	2	29 November 2023
C1.6.21	Stormwater Catchment Plan	1	22 September 2023
C1.6.41	OSD Plans, Sections & Details	2	29 November 2023
C1.6.51	Stormwater Drainage Details	2	16 November 2023
C1.6.61	Treatment System Standard Details	1	22 September 2023

5. Civil and Stormwater Plans – Access Road Widening (Up to Rev 4) prepared by Warren Smith Consulting Engineers:

#	Plan name	Rev	Date
C2.1.02	Specification Notes	2	22 September 2023
C2.1.03	Existing Survey	2	22 September 2023
C2.2.01	Sediment & Erosion Control Plan	2	22 September 2023
C2.2.02	Sediment & Erosion Control Details	2	22 September 2023
C2.4.01	Siteworks Plan	4	16 November 2023
C2.4.11	Typical Sections	1	16 November 2023
C2.5.01	Road Longitudinal Sections	1	14 November 2023
C2.5.31	Road Cross Sections	1	14 November 2023
C2.6.01	Stormwater Layout Plans	2	22 September 2023
C2.6.11	Stormwater Pit Schedule	1	June 2023
C2.6.21	Stormwater Catchment Plan	2	22 September 2023
C2.6.51	Stormwater Drainage Details	2	22 September 2023
C2.6.61	Treatment System Standard Details	2	22 September 2023
C2.7.01	Signage and Linemarking	2	22 September 2023

6. Stormwater Management Plan (Rev 3) prepared by Warren Smith Consulting Engineers dated November 2023.

7. OSD Deemed to Comply Spreadsheet (Rev 2.4) prepared by Warren Smith Consulting Engineers.

8. Waste Management Plan prepared by SLR Consulting dated 9 October 2023.

9. Traffic Signals Plan re MR184 Windsor Road, White Hart Drive and North-West T-Way (Issue F) prepared by URS Australia Pty Ltd dated 14 September 2023.

2. The Applicant is not required to lodge the Amended Development Application on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

3. The Applicant filed the Amended Development Application with the Court on 1 February 2024.

Orders

31. The Court orders:

1. The Applicant is granted leave to rely upon the Amended Development Application.

2. The appeal is upheld.

3. Development Application No. DA-23-00294, as amended, for construction of a new chapel, administrative and lounge buildings, including the proposed widening of an existing internal access to Windsor Road at 712 Windsor Road, Kellyville Ridge, is determined by the grant of consent, subject to the conditions of consent in Annexure ‘A’.

E Espinosa

Commissioner of the Court

**********

Annexure A

Architectural Plans

Amendments

14 February 2024 - Amendment to attach the Architectural Plans

Decision last updated: 14 February 2024