Walsh, J P v Tamworth Regional Council
[2006] NSWLEC 808
•04/12/2006
Land and Environment Court
of New South Wales
CITATION: Walsh, J P v Tamworth Regional Council [2006] NSWLEC 808 PARTIES: APPLICANT:
Jason Patrick Walsh
RESPONDENT:
Tamworth Regional CouncilFILE NUMBER(S): 10539 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Funeral parlour and mortuary: Screening the proposal from view especially the adjoining premises LEGISLATION CITED: Tamworth Local Environmental Plan 1996, (TLEP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 04/12/2006 EX TEMPORE JUDGMENT DATE: 12/04/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr D MacLean, solicitor
SOLICITORS:
MacLean & Curtis, TamworthRESPONDENT:
Mr P Thompson, solicitor
SOLICITORS:
Peter Thompson, General Counsel
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
4 December 2006
10539 of 2006 - Jason Patrick Walsh v Tamworth Regional Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Tamworth Regional Council (the council) to refuse a development application to alter and add to an existing building to establish a funeral parlour and mortuary at Lot 3, DP 150386, being No 6 Byrnes Avenue, Tamworth.
2 I visited the land in company with the parties on the morning of the hearing and I heard from Mr and Mrs Hazlem residents of Nos 2 and 4 Byrnes Avenue.
3 I have concluded that with conditions imposed concerning screening, the proposal would be reasonable and satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated on the northern side of Byrnes Avenue. It has a frontage to Byrnes Avenue of 14.77m, a depth of around 52.305m and an area of some 740m2. Erected on the land is a freestanding single-storey brick and iron roofed building. There is a driveway along the western side of the land along a right-of-way that is shared with the adjoining property at No 4 Byrnes Avenue, and burdens the subject land and benefits that adjoining property to the west.
5 Conditional development consents have previously been issued and in 1988, development consent was granted for a retail shop for leatherwork goods. In 1989 development consent was granted for a hairdressing salon.
6 The land is located within the Tamworth CBD and is within a commercial, retail and residential area. A council public car park abuts the subject land to the east.
7 Abutting to the west are premises at Nos 2 and 4 Byrnes Avenue used for assisted accommodation, respite care and nursing services to frail, aged or disabled members of the community, including palliative care services.
Relevant planning controls
Tamworth Local Environmental Plan 1996, (TLEP)
8 Under the provisions of the TLEP the land is zoned 3(a) Business and the building alterations and additions proposed in the building application are permissible with consent. The change of use of the existing building is considered as exempt development under the TLEP and the building works proposed are subject relevant and reasonable conditions.
9 The land and development is controlled by the following development control plans:
· Development Control Plan No 1- Traffic and Parking Guidelines, (DCP1)
· Development Control Plan No 2 - Guidelines for Commercial and Retail Development, (DCP2)
· Development Control Plan No 9 - Guidelines for Outdoor Lighting, (DCP9)
· Development Control Plan No 20 - Advertising/Notification of Development Applications, (DCP20)
The proposal and its history
Development application No 0319/2006 was lodged with the respondent council on 25 November 2005, and was amended to alter and add to the existing building on the land.
Notification
10 The application was notified to nearby owners and occupants from 22 March 2006 to 06 April 2006 and the council received many objections to the proposal including a petition with 97 signatures.
11 Representations were also received from the local NSW Member of Parliament, the local Commonwealth Member of Parliament and the local Commonwealth Senator. These submissions all related to issues arising from the use of the adjacent property for assisted accommodation including palliative care.
The council’s decision
12 The development application was reported to an Ordinary Meeting of the council held on 26 April 2006. The planning assessment report recommended that the development application be determined by way of conditional consent.
13 The respondent council resolved to refuse the development application.
The hearing
14 The appeal was filed on 21 June 2006.
15 At the hearing the court heard evidence on behalf of the respondent council from Mr and Mrs Hazlem of Nos 2 and 4 Byrnes Avenue.
16 Mr D Lewis, Development & Approvals Manager, Tamworth Regional Council, prepared the statement of basic facts dated 3 August 2006.
The issues
17 On 2 August 2006, the council filed a statement of issues.
1. Whether the proposed change of use of the premises to a funeral parlour and mortuary requires development consent
- Particulars
- Particulars
The amenity of the neighbourhood will be adversely affected by the proposed funeral home and mortuary use because:
- Particulars
- Particulars
- Particulars
a. The proposed funeral home and mortuary is incompatible with the use of the adjoining premises for the purposes of a business offering palliative care services and assisted care services to the terminally ill, frail, aged and disabled people;
b. The proposed development will result in terminally ill people accessing government funded palliative care services sharing a single lane driveway with hearses transporting bodies;
c. The incompatibility of the two adjoining uses will adversely affect the final stages of life of terminally ill community members who wish to access the palliative care services provided at the adjoining premises;
d. The proposed operation of a funeral parlour and mortuary will deter people from accessing the services offered at the adjoining premises;
e. There are currently insufficient places in the Tamworth region, which offer palliative care services, and assisted care services and the proposed development may adversely effect [sic] the quality and the viability of these services as they are currently offered at the adjoining premises.
6. Matters raised by objectors.
18 Before the hearing, the council consulted with the applicant and resolved the outstanding issues and came to Court with consent orders.
19 The concerns of the nearby residents were salient.
The evidence and findings
Residents’ concerns
Screening
20 The applicant agreed to erect fences and gates of Colourbond sheeting to a height of 1.6m and to erect above those fences and gates a lattice screen of 600mm giving a screening height of 2.2m. The neighbours were present when these modifications to the draft conditions were discussed and accepted that sufficient screening would result. I would not refuse the application for reason of inadequate screening.
Signage
21 The neighbours, the Hazlems, had objected to one sign near the right-of-way that referred to hearses using that access, and the applicant agreed to remove that sign on the day of the hearing. The applicant also agreed that hearses be driven onto and off the subject land through the council’s car parking area to the east of the subject land and remote from the premises of the objectors. The council’s representatives present at the hearing also endorsed this. With these modifications I consider the consent orders satisfactory and the application may be approved.
Time for the works to be carried out
22 At the request of the Hazlems the applicant agreed to carry out the fencing and screening by 1 January 2007 and the conditions were amended to include this undertaking.
23 For the above reasons, the appeal is upheld by consent.
Conditions
24 The conditions are those in Exhibit 1. These conditions include:
11. Metal lattice panels, 600 mm high, shall be added to the full length of the existing common boundary fence with No 4 Byrnes Avenue.
22. No signs of any description are to be installed in the driveway or otherwise erected to identify the driveway as a means of access to the rear of the premises as from 4 December 2006.
25. A fence panel of around 2,200mm in length is to be constructed along the prolongation of the northwestern wall of the toilet and shower at the rear of the subject premises to a height of around 1.6m to match the height of the existing Colourbond fence erected on the common boundary with No 4 Byrnes Avenue and a gate of similar height is be to erected between the end of the fence panel described above and the existing Colourbond fence on the common boundary with Nos 4 and 6 Byrnes Avenue. The new fence panel and the gate are to be surmounted by a 600mm high metal lattice panel. The purpose of the above fence, gate and screening is to prevent vision from any standing external observer into the rear of the premises. The above works are to be completed by 1 January 2007.
Consent orders
25 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 0319/2006 lodged with the respondent council (as amended) to alter and add to the existing building on the land described as Lot 3, DP 150386, and known as No 6 Byrnes Avenue, Tamworth is approved subject to the Conditions 1 to 38 in Annexure A.
3. No order as to costs.
4. The exhibits except for Exhibit 1 are returned.
S J Watts
sw
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