J. Kirk & Sons Pty Ltd v. Hervey Bay City Council & Ors

[2001] QPEC 69

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	J. Kirk & Sons Pty Ltd v. Hervey Bay City Council & Ors [2001] QPEC 069
PARTIES:	J. KIRK & SONS PTY LTD (ACN 071 654 512)  Appellant and HERVEY BAY CITY COUNCIL                   Respondent and MARGARET JOYCE ROBINSON and WESLEY CHARLES ROBINSON    First Co-Respondents and ROD CULLEN  Second Co-Respondent and LESLIE G ROSS PTY LTD   (ACN 064 136 956)  Third Co-Respondent
FILE NO/S:	1147 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	15 November, 2001
DELIVERED AT:	Brisbane
HEARING DATE:	20 –23 August, 2001
JUDGE:	Judge Quirk
ORDER:	Appeal allowed
CATCHWORDS:	Integrated Planning Act;ss4.1.3(5)(5A), 6.1.29(3)(c) 6.1.30(3)(b) Local Government (Planning and Environment) Act; s.4.4(3)(b) Kempstan v. Hervey Bay City Council (1997) QPELR 253; Arksmead v. Council of the City of Gold Coast (2000) 107 LGERA 60;
COUNSEL:	Mr C.Hughes for the appellant Mr M.Connor  for the respondent Mr T Trotter for the co-respondents
SOLICITORS:	Morton & Morton for the appellant Connor O’Meara for the respondent McCullough Robertson for the co-respondents

1. This appeal is against the respondent’s refusal of an application for approval of a material change of use of land at Hervey Bay.  The site in question occupies about 6.8 hectares and is located at the corner of Urraween Road and Scrub Hill Road.  A little over 200 metres to the east Urraween Road intersects with the Maryborough-Urangan Road.  The land is presently undeveloped and is used for cane farming.

1. The proposal is for a crematorium and caretaker’s residence.  It is to include a chapel, office, on-site car parking and other features normally associated with such an undertaking.  It is not intended that ashes of deceased persons be interred on the site.  The design and layout of the proposal is described fully in the material placed before the court.

1. In the relevant town planning scheme the proposal falls within the definition “Special Use” in which “crematorium” is one of the identified uses.  A Special Use is a column 3 (consent) use in the table of zones for the Rural zone in which the subject land is found.

1. Because the relevant town planning scheme is a “transitional planning scheme” within the meaning of Chapter 6 of the Integrated Planning Act, section 6.1.30(3)(b) of that Act requires that the application (being one for which town planning consent would have been required under the repealed legislation) must be decided under s.4.13(5) and (5A) of that legislation.

1. In the Strategic Plan the subject land is designated “Non Urban”.  In August 1999 the council had resolved to remove an area which included the subject land from the “Urban Residential ” designation.  This designation had applied to the land in 1996 when an application for a comparable proposal was being considered by this Court (Kempstan v. Hervey Bay City Council (1997) QPELR 253). The earlier designation appears to have been influential in the Court’s decision to reject the proposal at that time.

1. The scheme’s stated intent for the Non Urban designation is found in s.1.1.4.6 in these terms

“Non Urban areas are intended to be used predominantly for rural pursuits ranging from agriculture to grazing to hobby farming.  The Non Urban designation covers a large proportion of the City and is intended to provide a natural/rural contrast to the urban areas of the City.  Parts of the area are relatively remote from urban services and/or are physically to develop more intensively.  Included within this designation are areas which are zoned and/or developed for urban or rural residential purposes.  Most of these areas were given development approval many years ago.”

1. The Strategic Plan, in s.1.2.6.2, states specifically that:-

“The following types of uses may be permitted in the Non Urban area subject to meeting the criteria stated below and elsewhere in the Strategic Plan:
……

(iii)Special Uses and Public Facilities.

……”

It was conceded, on behalf of the respondent council, that on the evidence a finding that the proposal is not contrary to the transitional planning scheme or the Strategic Plan should be made.  I agree with that.

1. The matter of State Planning Policy No. 1/92 was raised against the proposal.  This State Planning Policy is concerned with the preservation of good quality agricultural land and by reason of s.6.1.29(3)(c) it must be considered in the assessment of this proposal.  While no technical evidence regarding soil suitability was given in the appeal in a direct sense, the co-respondent pointed to the fact that the land has grown cane for some time and presently supports a crop.  However, the evidence also indicates that the area is one which in transition from rural use in a fundamental sense.  Across Scrub Hill Road there is an area designated and used for industrial purposes. 

1. Across Urraween Road to the north the land has been designated for urban residential use.  Adjoining to the east there is a parcel of land (which was formerly part of the farm area which included the subject land) that has been taken up by the respondent council and is used for tourist and commercial purposes.  The facts would suggest that the subject land itself would not constitute a viable farming unit.  In the Strategic Plan the subject land was not included in the “Agricultural Protection Designation”.  For these reasons I do not believe it appropriate to find, on the evidence given, that State Planning Policy 1/92 stands in the way of the proposal.

1. Impact upon amenity was a matter raised by those who submitted against the proposal.  However, on the evidence given, it is difficult to see the matter as one which would warrant the proposal’s rejection.  There is the inevitable suggestion that there are those of us who would prefer not to be reminded of human mortality, but on the other hand, the need (in a general sense) for facilities of this kind, cannot be denied.  Provided the location is acceptable and reasonable steps are taken to lay out the proposal and present it (in a visual sense) appropriately, such a facility must be accepted as part of the social fabric.

1. In this case, as can be seen from the material before the court, a good deal of thought has gone into the design and layout of the proposal.  Notwithstanding the designation of the land on the opposite side of Urraween Road, close urban settlement has not yet reached the area.  While one must be careful in referring to findings of fact made in other cases, it is to be noted that the area’s character does not appear to have changed markedly since the earlier appeal and His Honour’s remarks under the heading “Amenity” and his finding that the proposal would not unreasonably degrade it (at page 260 of the judgment) would seem to remain pertinent at this point in time.  I would not find against the proposal on the ground of amenity.

1. The real issue in the appeal was that of community interest.  The issue was also referred to as that of “need”.  Traditionally when one was dealing with an application for town planning consent “need” was not a matter of particular concern as it was when a re-zoning was being considered.  A long line of authority recognised the importance of establishing that a proposed amendment of a town planning scheme was in the interests of the community as distinct from those of the proponent. 

1. This was eventually provided for in the relevant legislation (see s.4.4(3)(b) of the Local Government (Planning and Environment) Act).  No comparable legislative provision existed in respect of town planning consent applications.  However, one could not say that, in such cases, the matter of “need” or community interest could never, as a matter of law, be a relevant consideration.  The position is simply that it is not the law that in every application for town planning consent the issue of need must be examined and a finding in favour of a proposal is required.  It may be that in some cases public interest becomes a relevant consideration and the consequences of a proposal (in terms of public interest) may weigh in favour or sometimes against it.  This appears to be the effect of what was said by the Court of Appeal in Arksmead v. Council of the City of Gold Coast (2000) 107 LGERA 60.

1. In this case the issue of need was raised in this context.  It was said, by both the respondent and co-respondent, that there was no requirement for a further crematorium facility in Hervey Bay.  Furthermore, it was contended that to allow this proposal to proceed would have such a detrimental effect on the one existing facility in the area that the probabilities are that it would close.  This facility (Bayside Gardens) is conducted by the co-respondent, Leslie G Ross Pty Ltd.  There are (in columbaria and the like) deposited on the site the ashes of numerous deceased persons.

1. Accordingly it is very much in the interests of the community that the dignity of this site be preserved.  Difficulties in this context would arise if this facility ceased operation as a working crematorium.  It could be that the maintenance of the site in an appropriate way might become a burden on the community, and to that extent, its interests of would be adversely affected.  It was in this manner that the case for the respondent and co-respondent in respect of the matter of need was advanced. 

1. I accept that the community interest, in that sense, is a relevant consideration in this appeal.  I must therefore consider the evidence given on the matter.  The appellant, J. Kirk & Sons Pty Ltd., is a family company.  Generations of the family have been acting as funeral directors in the Maryborough-Hervey Bay area for very many years.  Their first funeral parlour was established in Maryborough in 1865.  The family is still active in that city and has an interest in a crematorium there. 

1. In more recent years there has been substantial growth in the population in centres along the shores of Hervey Bay.  The family opened a funeral parlour there in the mid-1970’s.  Mr James Kirk, the present principal of the family company, explained that the population of the bayside area has continued to grow, and that, with funerals, there has been a notable trend away from burial in favour of cremation.  He explained that families that have, over a long period, turned to the Kirks (when the need for their services has arisen) generally prefer that the funeral (or “final closure” as it is more delicately put) take place in the city where the deceased has lived.

1. For some time the Kirks have attempted to establish a crematorium at Hervey Bay but have been unable to obtain the necessary planning permits.  This has necessitated (when they are called upon to carry out a funeral involving cremation and the use of the Maryborough facility (which is approximately 30 kilometres away) is not desired) their having to turn to their competitor to be allowed the use of Bayside Gardens.

1. The inconvenience for the Kirks in this is understandable and evidence was led regarding what Mr Kirk saw as some level of obstruction from his competitor on some occasions when attempts were made by his company to schedule a service at a time convenient to it and the clients.  Representatives of the co-respondent denied such obstruction but I do not find it necessary to attempt to resolve any question of credibility in this context.  If the possibility of conflict in scheduling did arise, it would not be difficult to understand the co-respondent’s inclination to safeguard its own interests. Perhaps Mr Kirk’s frustration at this commercially awkward situation has coloured his perceptions.  In any event, it is not a matter upon which it is necessary to dwell. 

1. The relevant question in this appeal is whether the establishment of another crematorium would be contrary to the interests of the public rather than those of the appellant and the co-respondent.  In this respect I have the advantage of the evidence of two expert witnesses in the field of economic analysis.  Mr Winter was called by the appellant and Mr Norling by the co-respondent. 

1. Mr Winter had regard to population figures for the area (including projected growth) and statistics regarding mortality rates and the demand from cremation services.  He concluded that:-

“There is and will continue to be sufficient business to support two well-managed operations in Hervey Bay.”

1. Mr Norling’ s conclusion was essentially that to allow the proposal would, in all probability, lead to the closure of the co-respondent’s business.  This opinion followed a careful examination by Mr Norling of the financial records of the co-respondent and his reliance upon what he found is apparent from the content of his report (Exhibit 12).

1. It is true that the cremator at Bayside Gardens is working below its capacity but I do not see this as determinative, or for that matter, unusual.  What is suprising is that, although Bayside Gardens has been the only facility of this kind in Hervey Bay since 1996, Mr Norling found that, for reasons which he outlined in his evidence, the financial position of the co-respondent is quite precarious.  Accumulated losses of nearly half a million dollars were reported to 30 June 2000 and the company is labouring under a high level of indebtedness to the bank.  Mr Norling expressed the opinion that Leslie G Ross Pty Ltd is:-

“Continuing to trade only by virtue of the goodwill of the Westpac Bank and the shareholders and directors of the company.”

1. Unfortunately, Mr Winter was not able to look into this aspect of the matter as the financial position of the co-respondent was introduced as an issue at a relatively late stage in the proceedings, and (so I was informed) material relating to this issue was not discovered.  I have no doubt however, that Mr Norling conveyed to the court a reliable account of what he saw.  What is not at all clear is how the co-respondent finds itself in this difficult position.

1. Mr Norling, from his wide experience, had to admit that activity of this kind is generally relatively profitable.  The figures advanced by Mr Winter suggest that the co-respondent’s predicament is not attributable to lack of opportunity.   Whether it can be put down to management practices, excessive borrowing or whatever else, I am unable to say.  What is of considerable concern is that (irrespective of this proposal) on the evidence before me, the prospect of the co-respondent’s failure cannot be discounted. 

1. However, too much attention should not be focused upon the co-respondent.  If the possibility of its financial failure must be entertained, what is important is what will happen to the Bayside Gardens facility.  Having regard to the general profitability of this form of undertaking and the existing and likely future growth in the Hervey Bay area, I accept the suggestion made in the appellant’s case that the probabilities are that this modern, attractive and well-established facility would be taken up by another entity and would not lapse into undignified abandonment or otherwise become a burden upon the community.

1. For these reasons I am satisfied that it would be in the public interest that the appellant, who is an established operator in the area, should have the opportunity to present a full range of funeral services and that the proposal should not be rejected on the ground of need.

1. On the whole of the evidence, I find that the onus of showing that the application is one that should be approved has been discharged and the appeal will accordingly be allowed.  The matter will be adjourned for the formulation of conditions which are appropriate having regard to the evidence given.