Land and Environment Court New South Wales

• Medium Neutral Citation: The Carrick Group Pty Ltd v Blue Mountains City Council [2011] NSWLEC 1097
• Hearing dates: 15,16,17 November and 23 and 24 December 2010 and written submissions filed on 28 January 2011.
• Decision date: 02 May 2011
• Before: Dixon C and Johnson AC

Decision

1.The appeal is dismissed

2.Development consent to modify an existing commercial building on land at 435-437 Great Western Highway, Falconbridge, for use as a funeral facility as detailed in DA No: X/216/2010 is refused.

3. The exhibits are returned.

• Catchwords: APPEAL - development application for funeral facility including a crematorium - commercial use or an industrial use - permissibility under the planning matrix
• Legislation Cited: Environmental Planning and Assessment Act 1979; The Land and Environment Court Act 1979 The Blue Mountains Local Environmental Plan 2005; Sydney Regional Environmental Plan 20 -Hawkesbury Nepean River; Better Living Development Control Plan; Public Health (Disposal of Bodies) Regulation 2002
• Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Foodbarn Pty Ltd Solicitor General (1975) 32 LGRA 157; Mitchelle V Wollondilly Shire Council [2000] NSWLEC 54; Gazcorp Pty Ltd V Westfield Management Pty Ltd &Anor [2004] NSWCA 63; Caltex Oil (Australia) Pty Ltd V Holroyd; Municipal Council (1983) 49 LGRA 77 Kearney V Parramatta City Council [2007] NSWLEC 786; ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256; Baulkham Hills Shire Council V O'Donnell (1990) 69 LGRA 404; Chamwell Pty Ltd V Strathfield Council (2007) 151 LGERA 400; Cranbrook School v Woollahra Council (2006) 146LGERA; Alderkerk Pty Ltd V Cc Pt Adelaide Enfield &Epa No ERD -00-66 [2000] SAERDC 47 Woollahra Municipal Council &Anor V Sydney City Council &Anor (1966) 12 LGRA 175
• Category: Principal judgment
• Parties: APPLICANT; The Carrick Group Pty Ltd; RESPONDENT; Blue Mountains City Council; INTERVENOR; Leura Memorial Gardens
• Representation: Mr C Leggat SC with; Ms M Carpenter of Counsel; RESPONDENT; Mr J Robson SC; INTERVENOR; Mr J Maston with; Mr C Burgess of counsel; APPLICANT; Robert Tinsey Pty Ltd; RESPONDENT; McPhee Kelshaw Solicitors; INTERVENOR; Michael Flaherty Solicitor
• File Number(s): 10548 of 2010

Judgment

Introduction

1 This is an appeal, pursuant to s97 (1) of the Environmental Planning and Assessment Act 1979. It concerns an application for development consent to modify an existing commercial building on land at 435-437 Great Western Highway, Falconbridge, for use as a funeral facility.

2 The development comprises: administration areas (reception, offices and meeting rooms), a chapel (104 seats), function area, mortuary, crematorium and associated parking.

3 Although the applicant and Blue Mountains City Council agree that the development is characterised "commercial premises " under The Blue Mountains Local Environmental Plan 2005 (LEP 2005), and is permissible with consent, there is no agreement about the acceptability of a funeral facility with a cremator on the site.

4 The Council contends that the development is visually unacceptable and will generate unacceptable noise, parking, traffic and safety impacts. Of particular concern to the council is the impact of the emissions from the crematorium's stack on the air quality of the area.

5 Because of the parties' agreed position with respect to the permissibility of the development, on 12 October 2010 the Court granted leave - pursuant to s38 (2) of the Land and Environment Court Act 1979 - for Leura Memorial Gardens (LMG), to participate in the hearing - on a limited basis- in order to raise the issue of permissibility. It contends the development cannot be characterised as "commercial premises" and is prohibited on two grounds:

(a) First, crematoria are not identified in the applicable land matrix and thereby by force of cl32 (5) they are prohibited.

(b) Second, if cl32 (5) does not apply, the proposed crematorium is an "industry" for the purposes of the land use matrix cl 32 (1)(c) prohibits "industry" in the applicable "Village-Neighbourhood Centre" zone.

6 In an effort to save time and costs it was decided at case management that the permissibility issue should be dealt with as a preliminary point before any hearing of the merits of the application. This course, however, proved problematic. It soon became apparent, after hearing submissions on the issue of permissibility, that it was impossible to characterise the development without a comprehensive understanding of its design detail and operation. Therefore, after hearing oral submissions on the jurisdictional issue at the outset the Court proceeded to hear the merits of the application and gave the parties and LGM further opportunity to make submissions about the jurisdictional issue at the completion of the merits hearing - an opportunity which was taken up by all.

7 The proceedings were further complicated when, (on the third day of the hearing), the applicant sought leave - by notice of motion - to amend paragraph B2.12 of its facts and contentions in reply to read: "the administration area, the chapel, the mortuary, the crematorium unit, the refreshment area and parking [were] part of the whole of the operation of the business of the Blue Mountains Funerals, each one part of the commercial use of the site and ancillary to the business of the funeral home conducted by the Blue Mountains Funerals." In short, it no longer submitted that the crematorium was an independent component of the commercial premises but an ancillary component of the development.

8 The Council and LMG opposed this amendment. They argued that they were prejudiced if the applicant was given leave to amend its application at this late stage because they had prepared their evidence and submissions on the basis that the applicant had conceded that the crematorium was an independent component of the commercial premises. Relying on the principals articulated in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 about delay, cost and an extension of the hearing time they requested that the court deny leave to amend. LMG also submitted that the applicant could not resile from the admission it had made in its pleadings. However, after a consideration of the oral and written submissions and the applicant's agreement to rely on the existing evidence, we determined that there would be no prejudice to the council or LMG provided each was given an opportunity to make further submissions on the applicant's changed position -which they did orally and in written submissions filed in late January 2011.

9 The appeal raises the following questions:

Is the development permissible as "commercial premises"?

Is the development prohibited because it is not named in the planning matrix?

Is the development an "industrial" use and thereby prohibited?

Is the "crematorium" part of the development an ancillary use to the funeral facility and thereby part of the commercial premises?

If the development is permissible, is it acceptable on a merit assessment under s79C of the Act?

Agreed facts

10 In determining to refuse the appeal the Court relies on the agreed facts outlined in t he amended statement of facts and contentions filed by the council on 23 September 2010. It is not necessary to repeat them in this judgment save for the following.

11 The site is described as Lot 2 DP 208478 at 435-437 Great Western Highway, Falconbridge. It contains an existing 3 storey building purpose built for a motor show room.

12 It is on a single allotment of land with an area of 1,998m2 with a 42.2 m frontage to the Great Western Highway and a 43.5m frontage to Coomassie Avenue.

13 The site is zoned Village -Neighbourhood Centre (VNC) under the Blue Mountains Local Environmental Plan 2005 LEP 2005 and clauses 12-14, 19, 22, 24, 27, 32, Part 3 and Part 4 Schedule 1 Part 13 (Other Blue Mountains Villages- Other land zoned Village -Neighbourhood Centre ) are relevant.

14 Also relevant are the Better Living Development Control Plan - Part C and the Sydney Regional Environmental Plan 20 Hawkesbury Nepean River .

15 In order to answer the questions posed by the contentions it is necessary to appreciate the following definitions in the Dictionary in LEP 2005:

Commercial premises : -means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere defined in this dictionary .

Industry: - means an activity involving manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting any goods or articles for commercial purposes and does not include an offensive industry or hazardous industry.

16 The proposed modifications to the existing building consist of the installation of internal partition walls, installation of a cremator and exhaust flue and stack, the insertion of dormer windows into the roof and the insertion of a timber screen walls to 2 areas under cover of the main roof.

17 The proposal includes a 104 seat chapel with an area of 203m2 and function/refreshment room with a floor area of (185m2) including a kitchen, foyer/reception area, toilets, undercover outdoor seating area and under cover hearse parking area.

18 The basement of the building is proposed to contain a mortuary, workrooms, cremator, staff room, loading dock, stacked car parking for 8 staff vehicles, parking for a hearse and a transfer vehicle and hoist.

19 The first floor of the building is proposed to contain 2 offices, staff room, and coffin display, meeting room, storeroom and toilets.

20 The cremator stack is proposed to have a height of 1.3m above the roofline and is to be located on the eastern (Coomassie Ave) side of the main roofline (as depicted in drawing DA-06 Amendment B January 20010).

21 The proposed modifications consist of a reconfiguration of the existing motor display forecourt to a customer parking area and the provision of landscape planting.

22 The applicant proposes to conduct funeral services, provide refreshments, and carry out cremations as integrated development. Funeral services, cremation services and cremations would also be carried out as separate activities but booked and operated by the staff of the Blue Mountains Funerals.

23 The site adjoins a motel (the Pioneer Way Motel) to the east, and a medical centre to the west. Shops are located to the south of the development and on the opposite side of the Highway. Single storey residential development is located to the north and east of the development site, on eh opposite side of Coomassie Avenue and in Churchill Street to the east of Boundary Road.

24 There are a number of dwelling houses and businesses located in close proximity to the development and the crematorium stack. The proposal is controversial and after notification council received 626 submissions in respect of the application including; 417 letters of objection; and, 209 letters in support; and, 12 petitions containing several hundred signatures opposing the development.

25 Several of the objectors addressed the Court at the hearing after the Court returned from a view of the site and locality.

Council's submissions on Permissibility

26 It is Council's primary submission that the development (including the crematorium) is permissible with consent in the VNC zone because it falls within the definition of "commercial premises" in the Dictionary in LEP 2005:

"Commercial premises : -means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere defined in this dictionary ."

27 However, it concedes that the permissibility of the development as "commercial premises" is a default outcome; not an outcome that arises from the designation of development for the purpose of a "cemetery" or a "crematorium" as permissible development in the VNC zone. This is because a " funeral facility" and "crematorium" are not defined in the dictionary to LEP 2005 or in the land use matrix for the VNC zone; and, the development is not an "industry".

28 Relying on the South Australian authorities cited at paragraph 21 of its written submissions dated 9 November 2010, council submits the cremation of bodies is not the "dismantling of goods or articles for commercial purposes" and therefore the crematorium cannot be characterised as "industry".

29 If the development is not characterised as "commercial premises " it becomes an innominate use (unspecified in the development table in cl32 (6) -as opposed to those not defined) and prohibited by cl32 (5) of the LEP. This outcome is unacceptable to council because it frustrates the planning function of the development table. Council submits "...a particular type of development cannot be excluded from a definition within which it falls because of an evolution in public habits": Caltex Oil (Australia) Pty Ltd V Holroyd Municipal Council (1983) 49 LGRA 77 at [78]. In considering whether a convenience store is a shop the Court in Caltex held that a specific category could not be expanded to encompass what otherwise fell within that definition. Council submits the same approach needs to be adopted on the facts of this case.

30 In characterising the development as "commercial premises" the council submits that both the "funeral facility" and the "crematorium" fall squarely within the definition of "commercial premises". It submits that the planning function of a development table "cannot be avoided by armchair creations of unlisted forms of development as species of a listed genus": Gazcorp Pty Ltd V Westfield Management Pty Ltd &Anor [2004] NSWCA 63 at [17] per Giles J.A.

31 Having said that, however, council is of the opinion that the "crematorium" is an independent use within the "commercial premises". This is because of the requirement under the Public Health (Disposal of Bodies) Regulation 2002 ( Regulation ) to accept bodies for lawful cremation if required by another funeral parlour or as directed by a government authority. It submits that in those circumstances the operator of the funeral facility is not in control of the cremator exclusively and therefore the cremator is not ancillary or incidental to the operation of the funeral parlour but has a "life of its own": Foodbarn Pty Ltd Solicitor General (1975) 32 LGRA 157 at [161] per Glass J.A.

32 The cremator component of the development, according to council, is different to the "chapel" and "mortuary" and "workrooms" because they are controlled at all times by the operator of the funeral facility and therefore part of the one "commercial premises".

33 However, the fact that the crematorium is an independent use does not, in council's submission, preclude it from being characterised as "commercial premises". Council relies on the decision of Cowdroy J in Mitchelle V Wollondilly Shire Council [2000] NSWLEC 54 at [12] as authority for the characterisation of a pet crematorium as commercial premises. It submits the Court's reasoning in that case can be applied to the facts at hand.

Applicant's submissions on permissibility

34 The applicant agrees with the council's characterisation of the development as "commercial premises" but says that the crematorium is not an independent use. It submits, on the facts, there is one business operated and that the cremator is subsumed in the operation of the business.

35 At paragraph [25] of its written submissions dated 23 December 2010 it lists factors which substantiate that submission such as:

the cremator unit needs to be housed in the building;

the cremator unit is not a self service cremator;

the person or persons who operate the funeral facility will operate the cremator;

the staff of the operator of the funeral facility will in accord with the plan of management take bookings for the cremator;

there is not a 'cremator unit booking person who only takes bookings for cremations;

there is no distinction between a burial or a cremation in the life celebration service;

the area in which the cremator unit is housed in the basement is not capable of independent use despite the requirement in the Regulation that a cremation authority must not, without lawful excuse, refuse to accept a body for cremation because a member of the public cannot use the cremator unit without a booking through the staff of the operator.

36 It submits that when a patron uses Blue Mountains Funerals, a contractual arrangement arises between the parties. The manner in which the body is disposed of is merely one part of the commercial relationship. The disposal of the body is integral to the business and is subsumed as part of the commercial operation of the business. It relies on the Court's reasoning in Baulkham Hills Shire Council V O'Donnell (1990) 69 LGRA 404 per Meagher J.A at [409-410]

"Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is a question of fact and degree in all the circumstances of the case."

37 While the applicant concedes that a cremator unit and a crematorium could be used as an independent use on the land on the facts of this case it is not capable of independent use.

38 The applicant invites the Court to "characterise the purpose of the development...in a common sense and practical way " Chamwell Pty Ltd V Strathfield Council (2007) 151 LGERA 400 at [408] per Preston CJ. It submits that the cremator unit is an integral and indivisible part of the business of Blue Mountains Funerals to be conducted in the commercial premises.

LMG submissions on permissibility

39 As detailed in the introduction at para [5] of this judgment the intervenor LMG, rejects the characterisation of the development as "commercial premises" on the two grounds.

a) First, crematoria are not identified in the applicable land matrix and thereby by force of cl35 (5) they are prohibited.

(b) Second, if cl32 (5) does not apply, the proposed crematorium is an "industry" for the purposes of the land use matrix. cl 32 (1)(c) prohibits "industry" in the applicable "Village-Neighbourhood Centre" zone.

40 It submits that because crematoria are not identified in the applicable land matrix it is prohibited by cl32 (5) of the LEP.

41 Furthermore, because the applicant does not ask for an approval without the crematorium the appeal must be dismissed.

42 LMG submits that the applicant gives no explanation as to how the very broad genus of development caught by the definition of "commercial premises" interacts with the definition of "industry". Rather it says the applicant simply relies on a submission that the crematorium is development for the purpose of "commercial premises" because it is to be used for a commercial purpose.

43 The intervenor is critical of the applicant's reasoning and submits that it exposes the very reason why cl 32 (5) of the LEP prohibits the development. It submits that every field of commercial endeavour involves a " building or place " used for a commercial purpose" but that does not mean that the development is for "commercial premises".

44 Furthermore, it submits that many developments for a commercial purpose will be incompatible with a residential zone such as the "Village -Neighbourhood Centre "zone in LEP 2005 and where there is a dispute as to whether the development is to be characterised as "commercial premises" or "industry" 32 (5) addresses the " unforseen " and negates the need for " strained constructions" by prohibiting "all development not identified in the land use matrix": Gazcorp at [18] per Giles JA.

45 The intervener is also critical of the applicant's failure to address the scope and purpose of the LEP (including the zone objectives). It rejects the applicant's "fixation" on a narrow literal interpretation of the LEP particularly with respect to the meaning of "Industry" and cautions the Court not to engage in an exercise of "verbal felicity" as discussed in Cranbrook School v Woollahra Council (2006) 146LGERA at [36-37] and [46] when the primary judge "focussed too narrowly " on the definition of "community facilities".

46 LMG submits that a construction of the LEP, which treats a crematorium as an identified permissible development in the VNC zone does not advance the objects or purposes of the LEP. The applicant does not make reference to the overriding exclusion "but does not include..."at the end of the definition of "commercial premises".

47 The intervenor submits that the crematorium falls within the definition of "industry" and that the case law relied upon by the applicant is able to be distinguished on its facts and different planning controls. For example in the decision of Alderkerk Pty Ltd V Cc Pt Adelaide Enfield &Epa No ERD -00-66 [2000] SAERDC 47 at [37] "the Court noted the land lay within the "General Industry (2) Zone." (Para 13 of the written submission filed by the LMG on 12 November 2010).

48 It submits the fact crematoriums were approved under the now repealed Public Health Act 1902 (now repealed) supports a finding that development of crematoria would not have been foreseen by the drafters of LEP 2005as being comprehended by the expression "commercial premises" and therefore, such development must be prohibited by cl 32(5) of the LEP.

Finding on Permissibility

49 The starting point in determining the appropriateness of this development on this site is its permissibility under the relevant planning controls.

50 This requires a characterisation of the development and we accept that the task needs to be approached in a "common sense and practical way": Chamwell Pty Ltd V Strathfield Council (2007) 151 LGERA 400 at [408] per Preston CJ. Furthermore, in characterising the development it is appropriate to look at the whole of the development: Foodbarn.

51 This development is made up of several components including a cremator unit, which has the potential to be an independent use. However, its characterisation as an independent use is a question of fact and degree: Baulkham Hills Shire Council V O'Donnell (1990) 69 LGRA 404 per Meagher JA at [409-410]

52 Based on the evidence, we accept the applicant's submission that "...the disposal of the body is integral to the business and is subsumed as part of the commercial operation of the business." Despite its potential for independent use, in this development the cremator unit is part of the whole of the operation of the business of the Blue Mountains Funerals in the development, which is a "commercial premises".

53 The evidence supports a finding that the crematorium in this development is incapable of independent operation for the reasons detailed at paragraph 35 above. The plan of management supports such a finding it will at all times be controlled by the operator of the development. It is on the evidence an ancillary use to the "commercial premises".

54 The requirement under the Public Health (Disposal of Bodies) Regulation 2002 ( Regulation ) to accept bodies for lawful cremation if required by another funeral parlour or as directed by a government authority does not mean that the cremator unit is an independent use in this development. There is no evidence to support a finding that the Regulation will not be complied with should the need arise although on the facts it would need to be managed by the operator of the development because it is housed in the basement of the commercial premises.

55 The facts support a finding that cremator is ancillary to the development because it is a fundamental part of the business at the "commercial premises". Based on the evidence, the disposal of the body is integral to the business and is subsumed as part of the commercial operation of the business.

56 It is a fact that the development table in clause 32(6) of the LEP 2005 and the Dictionary to the LEP 2005 - do not contain the words "funeral facility" or "crematorium". However, the council and the applicant submit that the development is properly characterised as "commercial premises" because it fits squarely within the definition in the Dictionary to LEP 2005.

57 We accept that submission on the evidence.

58 We also agree with the council's submission that "...a particular type of development cannot be excluded from a definition within which it falls because of an evolution in public habits": Caltex Oil (Australia) Pty Ltd V Holroyd Municipal Council (1983) 49 LGRA 77 at [78].

59 Just as the Court held that a shop included a convenience store in Caltex it follows that the definition of "commercial premises", in the Dictionary to LEP 2005, includes the development of a funeral facility with a crematorium as proposed in this application. There is no logical reason to remove it from the genus of "commercial premises" as defined.

60 The consequence of not characterising a funeral facility with a cremator as "commercial premises" is that a funeral facility or cremator can never be built in the Blue Mountains local government area under the current planning controls. This outcome, we accept as submitted by council, is not a "common sense and practical" planning outcome.

61 We do not accept the intervenor's submission that the cremator unit is an "industry " as defined in the Dictionary to LEP 2005 namely:

"Industry: - means an activity involving manufacturing, assembling, altering, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, processing or adapting any goods or articles for commercial purposes and does not include an offensive industry or hazardous industry".

62 The cremation of bodies is not the "dismantling of goods or articles for commercial purposes". We rely on the authority cited by the applicant and the council which determined that the incinerating of deceased pets, or even garbage, is not "the breaking up or dismantling (or processing) of goods or articles" within the meaning of similar definitions of "industry": Woollahra Municipal Council & Anor V Sydney City Council &Anor (1966) 12 LGRA 175 at 180 per Else Mitchelle J; Mitchelle v Wollondilly Shire Council [2000] NSWLEC 54 at [5]-[7] per Cowdroy J pet crematorium is not an industry.

63 It is true that many developments for a commercial purpose will be incompatible within a residential zone such as the "Village -Neighbourhood Centre "zone in LEP 2005 however, permissibility of a development does not equate to a development consent. Permissibility is the entry door to an assessment under s79C of the Act and a close and careful analysis of the suitability of the development for the site.

64 We do not accept on the facts of this case that the characterisation of the development as a "commercial premises" is a "strained construction", however, its characterisation as an "industry" would be.

65 After a consideration of all of the written and oral submissions we find that the development is permissible as "commercial premises".

Merit Assessment

66 We will now explain why the evidence supports a finding that it is unacceptable on a merit assessment under s79C of the Act.

Air Quality

67 The proposal includes a cremator unit, referred to as the Power Pak II, manufactured by Matthews International in the US. Although the unit will be installed in the basement level of the building, it necessarily includes a chimney or ventilation stack that will allow the gas emissions to vent to the atmosphere.

68 The external chimney of the stack will be a new feature, added to the existing roof of the building, and of the same building materials and colour (colour bond metal sheeting). It will be clearly visible and will project 900mm above the roofline facing the Great Western Highway and 1.3m above the roofline on the eastern or Coomassie Avenue side.

69 Air quality modelling has been carried out by the applicant's consultant and utilised standard software packages such as the CSIRO TAPM model to simulate meteorological conditions and the CALPUFF dispersion model (in single station screening mode). Unfortunately only broad scale terrain data was used in the modelling, rather than specific data for the immediate area of the facility and surrounds. More detailed local terrain data could have been obtained from Council.

70 Meteorological data used in the modelling was the default synoptic data from the TAPM model, as no local meteorological data was available. The Applicant's expert, Mr Fishwick, agreed that actual weather data for the site could have been obtained by the installation of monitoring equipment and collection of data over a period of at least 1 year, and at a cost of approximately $15,000.

71 The air quality modelling clearly indicates that the ground level concentrations of potential airborne contaminants are very low relative to standard NSW DECCW air quality assessment criteria (which are not specifically intended for crematoria, but applied generally in the assessment of industrial/commercial air emissions).

72 The two expert witnesses (Scott Fishwick for the applicant and Aleks Todoroski for the respondent) provided a joint expert report dated 8 November 2010 (Exhibit 15) and an Addendum to that report dated 17 November 2010 (Exhibit 22). The two disagree on a number of issues (such as the suitability of the terrain and meteorological data used, the required stack height to achieve good engineering practice, the way in which the CALPUFF dispersion model was applied and the application of the 200m buffer zone recommended in the ACCA Environmental Guidelines).

73 The two experts do agree, however, that under normal steady state cremator operating conditions, ground level concentrations of air pollutants emitted are not expected to exceed the DECCW criteria. They note that upset or abnormal operating conditions have the potential to occur and could lead to different emissions and impacts, but that the quantification and assessment of impacts from upset conditions is not practicable.

74 The Addendum to the Joint Expert Report of 17 November 2010 (Exhibit 22) was produced following the revelation that the proposed stack had a bent configuration rather than a straight vertical shape. Both witnesses agree that the bent stack will reduce the dispersion performance from that which was modelled and that this shape does not accord with good practice design, particularly in avoiding building 'downwash' effects on emitted pollutants. Mr Todoroski considers the bent stack configuration is likely to result in non-uniform stack exit conditions which will decrease dispersion and increase plume entrapment in the downwash eddy, thereby increasing pollutant concentrations in the vicinity.

75 In his verbal evidence Mr Fishwick claimed that the effects of the bent stack cannot easily be modelled, but that he believes that his conclusions regarding the likely air emission impacts would be the same. He acknowledged however that modelling of the changed stack configuration could certainly be conducted using a more advanced model.

76 We consider the fact that the modelling was conducted on the wrong stack configuration, did not utilise realistic and local terrain data and was based on synthetic meteorological data instead of actual information measured locally, are all serious shortcomings in the Applicant's overall air quality assessment.

77 The question of visibility of emissions is an extremely important one, as the stack or chimney will be visible to a number of residents and to the public. The Court understands that under normal operating conditions, no visible emission will occur from the stack, but that it is common for a heat haze or heat 'shimmer' to be visible above the stack during cremations and for some time after while the stack and cremator remain hot. This evidence was given by two witnesses who are funeral directors and cremator operators, Mr Monte and Mr Claxton.

78 It is evident to the Court that the efficiency of the cremator process and operation is very largely dependant on the practices and experience of the operator, who needs to remain close at hand during the process. This is particularly the case during 'repositioning' of the remains within the cremator, when odours can be released (mostly inside the cremator building).

79 It is also apparent that the occurrence of abnormal operations, possibly leading to altered emissions and odours, can result from the presence of various materials or items within the coffin (such as leather, rubber boots or other extraneous items). Clearly in situations where the operator has control over the contents of the coffin (such as at Mr Monte's crematorium) this can be avoided. However it is understood that the Faulconbridge proposal includes allowance for the receival and cremation of sealed coffins from other funeral directors, over which the cremator operator has no control as to the contents.

80 There remains a concern that if abnormal or non-steady state operating conditions were to occur for any reason (or if the control systems on the cremator failed), then it is possible that visible emissions may result from the stack, or even a (remote) possibility that fine dust may be deposited in the surrounding area. It is imperative that events such as these cannot be allowed to occur, due to the proximity of houses and other commercial establishments. We are not satisfied on the evidence that there is any guarantee that such occurrences will not happen.

Finding on Air Quality

81 Based on the evidence we are of the opinion that the proposal does not satisfactorily address air quality. In particular, the effects of the bent stack design have not been modelled and the experts agree that the bent stack does not accord with good practice design, and it will reduce the dispersion performance of the stack (refer Exhibit 22).

Parking and Traffic

82 The proposal includes a 104 seat chapel, function centre and patron parking for 33 cars, accessed from the Great Western Highway. In addition, there will be 10 stacked parking spaces present on the basement level of the building that are accessed from Coomassie Avenue at the rear. These would require valet parking if used by patrons and in reality are more likely to be occupied by staff and funeral vehicles.

83 The Blue Mountains City Council DCP refers to two approaches to calculating the number of parking spaces required - using the number of seats method, 38 spaces are required while using the floor area methodology, 32 spaces are required. The court agrees with the two parking experts (Mr Varga for the Applicant and Mr Rogers for the Respondent) that perhaps a better way of estimating parking demand for a proposal such as this is to examine actual parking survey information from the existing Leura Memorial Gardens (the only existing funeral and crematorium facility in the Blue Mountains).

84 Various parking surveys have been conducted during funeral services at LMG by the two experts' companies and by LMG themselves, and it was found that there is a very large variation in parking demand at funerals. The average number of attendees from all surveys was 57, and the average parking demand was 27 spaces. 28% of services had a parking demand of over 33 spaces and 15% of services had a parking demand of over 53 spaces. These figures were given in evidence and update the numbers in the experts' Joint Report.

85 The evidence is that it is almost impossible to limit the number of people or vehicles attending a funeral service. Both experts acknowledged that there will, on occasions, be services at the proposed Faulconbridge facility that are very large (such as for a prominent community figure, or for a young person) and the seating capacity will be exceeded. The Applicant is, however, prepared to limit the number of very large services to a maximum of 10 per year, and not more than one per month.

86 It is unclear how the Applicant will limit the size and frequency of large funeral services, as it is not possible to know in advance how many persons will attend a funeral.

87 The only existing crematorium in the Blue Mountains is at Leura Memorial Gardens (LMG), which has seating for only 70 persons, so it is quite possible that larger funeral services may be more likely to be attracted to the larger Faulconbridge facility. Unlike other function centres and facilities used for public events, it is not possible to know or to predict the demand in size or frequency of funeral services at a centre such as that proposed.

88 It is clear from the results of surveys at LMG, that there will be numerous occasions when the parking demand from funeral services at the proposed facility will exceed the on-site parking provision, as 28% of services at LMG required over 33 parking spaces, and this excludes the very large services which will be limited in number.

89 This expected regular exceedance of the parking provision is acknowledged by the Applicant and the Applicant's traffic consultant, Mr Varga, who expects that visitors would also park along the Great Western Highway, in Buttenshaw Park, Churchill Street and Coomassie Avenue, thereby competing with other residential and commercial visitors.

90 It is proposed that services will be limited in number on any day and that they will be required to be separated in time such that no overlap in parking demand occurs. This is considered to be important. We also note that the conditions require a Parking Management Plan to be developed, and that this will stipulate that traffic control personnel will be required to direct patrons parking cars in the main car park at the front of the building for large funeral services.

91 In terms of traffic impacts, no adverse impacts are likely to occur as long as parking controllers are present for large services, to prevent back-up of vehicles attempting to enter the property from the Great Western Highway. It is also important that services are only allowed to take place at times of day when traffic arriving or leaving the facility does not coincide with drop-off or pick-up times at the nearby public school. It is noted that this is also the subject of the draft conditions of consent.

Finding on Parking and Traffic

92 The draft conditions do not satisfactorily address the likely parking demand and expected problems identified in the evidence. This is particularly the case due to the uncertainty in predicting the size and frequency of large funeral services, and the associated parking demand.

Noise

93 Typical activities at the funeral complex that could lead to the generation of noise include intermittent sources such as vehicle movements, voices, amplified music and speakers etc. However semi-continuous sounds such as from air-conditioning plant and the cremator unit itself must also be considered.

94 Of particular significance is the sound of the cremator unit when in operation. For a typical cremation, the fan and motor for the cremator will operate for up to several hours. The cremator will be housed at the rear of the basement level, on the north-east side of the complex and immediately adjacent to the driveway and future public road below the ground floor level chapel and function areas, as shown in the proposed plans.

95 The evidence discloses that that this driveway area immediately adjacent to the cremator room (and passing under part of the ground floor level of the building), is subject to an easement and will become a future public roadway, as an extension to the car park and existing roadway at the rear of the adjacent medical centre and other businesses.

96 The Respondent submits that noise identified by nearby residents, or persons passing the site, as coming from the cremator unit would be perceived differently to noise from other plant and equipment. The fact that noise from the cremator relates to the burning of human remains would be potentially unacceptable to those persons, according to the Respondent.

97 The Applicant, on the other hand, considers that the normal noise limits for new developments should apply, i.e. that the noise level at the boundary of any affected receiver should not exceed the background noise level by more than 5 dBA. The Court acknowledges the concerns raised by Council's planning expert that any sound specifically emanating from the cremator unit will have potentially adverse and negative connotations for the public and adjacent residents. We therefore agree with the Respondent's submission that noise generated by all plant and equipment associated with the cremator unit must not be detectable beyond the rear elevation of the building.

98 In terms of noise from sources and activities at the site, other than the cremator unit, the evidence does not suggest a likelihood of any adverse impacts or nuisance to the public or to nearby residents and businesses.

Finding on Noise

99 The public sensitivity to the noise of the operating cremator is a relevant concern, but not determining of the appeal. Based on the evidence, we prefer Council's planning expert's assertion that noise from the cremator should not be audible beyond the boundary of the development site. The draft condition suggested by the Respondent, if able to be complied with, does address this issue. We consider that the noise issue alone is not a reason for refusal of the application.

100 Based on the above, and a consideration of the relevant matters in section 79C of the Act we are the opinion that the site is not suitable for the development as proposed.

101 The Court makes the following Orders:

(1) 1. The appeal is dismissed.

(2) 2. Development consent to modify an existing commercial building on land at 435-437 Great Western Highway, Falconbridge, for use as a funeral facility as detailed in DA No: X/216/2010 is refused.

(3) 3. The exhibits are returned.

Susan Dixon

Commissioner of the Court

David Johnson

Acting Commissioner of the Court

Decision last updated: 23 May 2011