41 The principal-contested issues were:
· whether the modification is of 'minimal environmental impact'; and
· whether the modification will generate unacceptable levels of air pollution.
The evidence and findings
Whether of 'minimal environmental impact'
42 Issues 1 and 2 were whether the proposed modification would be substantially the same development as the development for which the consent was originally granted and whether that development would be of minimal environmental impact such that the development consent can be validly modified under s 96(1A) of the Environmental Planning & Assessment Act 1979.
43 Mr Maston submitted that the Court of Appeal decision in North Sydney v Michael Standley & Associates (1987) 97 LGERA 443 indicates that a consent authority, or the Court on appeal, is required to consider the totality of development and take into consideration any relevant matters under s 79C of the Environmental Planning and Assessment Act 1979. In considering the merit of this application I have had regard for this decision.
44 Mr Sneddon dealt with this Issues 1 and 2 in detail, [Note: Exhibit 4, pp 5 and 6]. He satisfied himself that the proposed modifications:
"…relate to operational matters and do not involve any alterations to the classification of approved use of the land, the existing building (internal or external) or the site generally, and involve no alterations to the existing approved single unit cremator. The physical setting of the crematorium remains unchanged.
45 He was satisfied that the development is substantially the same as that approved by the council and would be a modification under s 96(1A) of the Environmental Planning & Assessment Act 1979.
46 He considered the increase in the number of bodies to be cremated and was of the opinion that the limitation imposed by the original Condition 3 of 400 bodies cremated per annum has no technical or pollution control basis, and as a result could be modified to 800 on the basis of minimal environmental impact.
47 The limitation under Condition 4 concerning the operating temperature of the primary combustion chamber when a body is being cremated would not change the nature or characteristics of the development to which the consent as modified relates, he said.
48 He considered the proposed modification of the limitation to the hours of operation would also meet the requirements of s 96(1A) of the Act and would not be significant.
49 Mr Keating addressed the issue of a likely increase in local traffic due to the transportation to the crematorium of an increased number of bodies per annum. He was satisfied that there would be no adverse impact on the road network as a result of the proposed modification of the consent, [Note: Exhibit 5].
50 Both Mr Davies and Dr Holmes agreed that the air quality and health risk impacts of an increase from 400 cremations per annum to 800 cremations per annum (8.6 cremations per day), and considered the impacts acceptable, [Note: Exhibit 3, p 2].
51 Mr Maston, barrister for the respondent, submitted that Mr Sneddon had not adequately dealt with the intangible aspects of amenity and the perceived concerns of the residents. As I found in Mark Makhoul v Sydney City Council [2005] NSWLEC 331, residents' perception of an impact on amenity must have a real basis in fact. I am satisfied in the particular circumstances of this case that the perception of residents concerning the impact on amenity of the proposed intensification of the crematorium does not have sufficient basis in fact to warrant refusal of the application. I have dealt with the residents concerns in more detail below. My reason for arriving at that conclusion is based on the experts' views that there would not be any adverse impact on amenity, and on my analysis of the residents' concerns from both written and site-based evidence. Conditions are imposed to ensure that adequate monitoring and control is in place to ameliorate any potential adverse impacts.
52 Given the expert evidence in respect of Issues 1 and 2, and the particulars relating to these, I am satisfied that the proposed modification application is of 'minimal environmental impact' such that the original development consent can be validly modified under s 96(1A) of the Environmental Planning & Assessment Act 1979.
Air pollution
53 Mr Maston submitted that with an increase in the number of cremations from 400 per annum to 800 per annum there would be a 100% increase in emission of pollutants per annum, and this would be adverse to the health of nearby residents. He accepted that the rate of release of emissions would remain the same as presently, as a consequence of there being only one cremation every 70 minutes or thereabouts.
54 Both Mr Davies and Dr Holmes agreed that the air quality and health risk impacts of relevant air pollutants for up to 800 cremations per year and up to 8.6 cremations per day, are considered acceptable when gauged against relevant standards, [Note: Exhibit 3, p 2]. They identified the issues with respect to air quality and health risk as:
· Quantification of air pollutant emissions from the cremator.
· Determination of air quality and health risk criteria for the assessment of impacts.
· Appropriate consideration of meteorological conditions at the site for use in dispersion modelling as required for the impact assessment.
· Accurate assessment of air quality and health risks associated with the proposed extended operations at the cremator by comparison of predicted impacts with the pre-determined criteria.
55 They stated, [Note: Exhibit 3, p 2]:
With respect to the quantification of air pollutant emissions, the pollutants considered for assessment are particulate matter (PM10), mercury and dioxins. The pollutants emission concentrations and emission rates along with stack release parameters, e.g. exhaust flow rates, discharge temperatures and velocities have been determined by ERM (2004).
The health risk criteria adopted for assessment is that provided by NSW DEC (2005) 'Approved methods and guidelines for the modelling and assessment of air pollutants in New South Wales' .
The meteorological data used for the air dispersion modelling assessment is sourced from Lochinvar, NSW. This data was compared with data collected at Cessnock Aerodrome, which is in close proximity to the Nulkaba cremator.
The air quality impacts have been assessed with the AUSPLUME dispersion model, which is approved by the NSW DEC [NSW Department of Environment and Conservation] for assessing air pollutants in NSW. Predicted impacts using worst-case pollutant emission rates have been compared with the relevant DEC, 2005 air quality criteria. In the case of particulate matter (PM10), mercury and dioxins, impacts associated with operations at 800 cremations per year and 8.6 cremations per day during operating hours (8 a.m. to 6 p.m.) are shown to be within the relevant criteria.
56 Table 1 of Exhibit B prepared by Dr Holmes sets out the estimated emissions from the cremator stack with the existing and modified conditions of consent. These emissions were then modelled for the expected meteorological conditions at the land and the predicted concentrations shown in the Figures 3 to 8 in Exhibit B, showed that none would exceed the NSW Department of Environment and Conservation current (2005) assessment criteria. Also it is noted that the measured rate is about one tenth the theoretical value, [Note: Exhibit B p 6], thereby giving a sizable margin of safety.
57 The atmospheric scientists have considered the increase in air pollutants generated by the cremation of 800 bodies per annum when compared with the cremation of 400 bodies per annum and have accepted that the present rate of discharge of pollutant emissions would not change, although gross amount would increase by 100%. Thus, I am satisfied that the experts have adequately assessed the rates of discharge and predicted concentrations and reasonably concluded that these would be within the relevant criteria.
58 Mr Larkin submitted that a requirement suggested by the council that PM10 be monitored would be an unwise inclusion on the basis of expert evidence. He submitted that it would be sufficient to monitor only solid particles. That much is clear from the joint report he submitted. Also, he submitted that, as mercury emission would be very low, monitoring would not be warranted. Thus I accept the joint evidence of the experts and agree that PM10 and mercury need not be monitored.
59 I am also satisfied that sufficient distance is provided between the cremator and nearby residences to limit any adverse impacts, since the crematorium is more than 100m distant from the closest residence not under the control of the applicant. This accords with the buffer provided between dwellings and light industrial uses and is adequate.
Other matters
Resident concerns
60 At the site inspection I heard from many local residents. Although not everyone who spoke on that occasion had objected, the views of nearby residents were well represented by those who did give oral evidence. Some of the residents had prepared written notes, which were taken into evidence.
61 Mr G J Thompson was concerned that ash from the cremation process would be blown on the wind to nearby residential properties when the roller doors to the crematorium were left open. Another factor that concerned him, was that even if the ashes were washed out into the yard, they could be blown around by the wind when dried or if it were to rain could be washed into the nearby watercourse. He said that if the ashes from the crematorium were buried on site as presently exists, the hole might fill with water after rain and wash some of the contents away and cause pollution nearby.
62 There was no expert evidence to support his contention that there would be a health hazard as a result of the current disposal methods of the operators of the crematorium. The expert evidence is that the cremation process reduces the coffin and body to inert ash with no surviving microorganisms. However, the owners are now aware of Mr Thompson's concern and it might be expected that some measures will be taken in the future to ensure that ashes are not blown about or washed away. It is matter that could be dealt with by a management plan.
63 Mr A Bourke was concerned that his residence on the other side of the Jehovah Witness' property, in Wine Country Drive was within 200m of the crematorium and subject to pollution from the operation. He explained that had seen a young girl playing in the crematorium "…with ashes floating around". In answer to his question, Mr Bower told Mr Bourke and those present, of the process for disposal of the ashes. He also explained that the cremator takes up to 2 or 3 days to cool down and the ambient temperature governs the time taken.
64 Mr P C Milton had visited the crematorium at 1.20pm, Monday 26 September 2005, and in answer to his question, was told that some of the ashes from the cremation process are spread around the gardens and lawn surrounding the church and that it was against the law to take the ashes to the tip. He was told that the metal and plastic parts left over from the cremation process are put into a pit on the land. Mr Milton was concerned that children and animals might fall into the pit if it were not properly covered. In answer to this concern Mr Milton was told that the pit is covered. Presently the pit covering was solid, however the photographs in Exhibit 8 show it covered by a metal mesh.
65 Other matters he raised included:
· people cleaning the crematorium with a mop and bucket and the slops are poured into the natural gully that runs into private property;
· ash and particles fall onto the floor of the crematorium and might be distributed to nearby properties along the gully;
· the cool-down period takes up to two hours;
· a little girl might suffer adverse health consequences by playing in the ashes in the crematorium when the operator is on duty;
· because of the fear of contamination he does not enjoy an outdoor barbeque as he used to;
· his children are not happy about bringing their children (his grandchildren) to the house because of the fallout;
· the day of the July 2005 council meeting on the site at 3.45pm there was brown and black smoke whipping around and this continued intermittently until around 4.45pm;
· a couple of times he had smelt a rotten burnt-fleshy smell and "…this smell gets into your lungs";
· he was familiar with the smell as he had been in the fire brigade for 40 years, and black smoke he said, is an indication of incomplete combustion;
· the crematorium was to have been built at Greta but because of objection especially from the local vignerons, it was stopped;
· now it has been built amongst children; and later he said
· the smoke from the cremator was blown by the wind straight over the pre-school and primary school.
66 The applicant has agreed to weigh the bodies and coffins to ensure that heavy bodies are not included in the 'last charge of the day'. The expert evidence is that if this measure is taken it is unlikely there would be any black smoke caused by the cremation process. The operator, Mr Bower, gave evidence that there would only be heat haze emitted if a "…normal sized body" were being cremated.
67 Mr McLean indicated that this 'normal sized body' would be typically for coffin and body weights in the range of 100kg to 120kg. For coffin and body weights of 150kg to 200kg a cycle time of up to 120 minutes is required for complete cremation, [Note: Exhibit, G p 1]. As the 'last charge of the day' cycle is 85 minutes only low coffin and body weights should be selected for this cycle to ensure complete cremation.
68 Mrs K Thompson gave evidence on site and in Court and said that she had visited the crematorium on Tuesday, 27 September 2005 and when she arrived the roller shutter to the crematorium was open. She had noticed a tray of oxidised bones and experienced a smokey sensation in the back of her throat that took all the rest of the day to go away. The cremated remains of a person were still in the cremator after 12 hours.
69 I visited Mrs Thompson's dwelling and viewed the crematorium from the back verandah of her Austral Street home. Ms Thompson provided two photographs of crematorium with smoke rising from the chimney, taken from that same position, [Note: Exhibit 9]. She said that she "…was surrounded by death", and when she tried to get away from the cremator at the back by using the front part of her house, she sees hearses going up and down the road in front of her house.
70 One day the smoke and 'stuff' coming out of the chimney was brown and she was nearly sick. Once, her eldest son came out and saw and smelt the smoke and said that someone's ghost was coming into the house.
71 Mr Larkin submitted that when Mrs Thompson smelled the plume of smoke the wind was not blowing in her direction. He submitted that the expert evidence did not establish the conditions she described.
72 Mrs Thompson had a long list of concerns that were noted by the parties and included in the notes taken on site, [Note: Exhibits 10 and E].
73 Ms T Mallik supported her comprehensive notes in Exhibit 11 by oral evidence in Court and on site. She agreed that from her dwelling it is not possible to see the cremator. She complained to the council about black smoke issuing from the chimney around 4.00pm on Wednesday, 12 October 2005. She said that Mr Sandell of the council had come to the crematorium around 4.20pm with another officer of the council who had taken photographs while they were standing on community land, and black smoke was still coming out of the chimney during the cool-down period. She considered this to be "…very worrying". Again this might be attributed to a greater than normal body and coffin being the last charge of the day. The applicant is now aware of this and will under the conditions weigh the mass of body and coffin to ensure proper primary and secondary combustion.
74 Mr T Gough, said that he too had seen smoke coming out of the chimney outside operating hours. He had seen smoke on one occasion around 6.30pm while he was walking his dog near the crematorium.
75 Mr K J Goodwin asked where the water captured in the sump or pit is discharged and was told that it is washed into the Envirocycle. He also asked about the fridge and microwave in the crematorium and was told that it is not used. However, Mr Bower said he eats lunch in his office, which is to one side of the crematorium space.
76 Ms F Lynch said she had smelt pungent smoke on Saturday that lasted from 1.50pm to 2.20pm and she had closed her kitchen window to reduce the effect.
77 Ms K Mallik asked how does the operator know that there are no ashes from bodies thrown out in the bins? She was told that the ash is sifted, but it is made up of coffin ash and some cremated human remains that are scattered around the garden.
78 Ms J Goodwin asked how long does it take to warm up the cremator and was told that it takes around 50 to 80 minutes and the time is longer in winter when the air is cold.
79 Mr G Thompson later asked whether the operator of the crematorium had placed the cremation process on 'manual' when black smoke was being emitted last Wednesday [12 October 2005]. The operator, Mr Bower, told him that once the system is placed on 'last charge' it couldn't be adjusted. He said that he had allowed 2% air content and was satisfied that the cremation process was completed.
80 Mr G Burke was concerned that if large quantities of rainwater were to fill the ash disposal hole, microorganisms would come out. He asked what stops the microorganisms from getting into the watercourse and affecting cattle? He added there is also a possibility of children falling into an uncapped hole. He later pointed out when standing in his backyard that he bought his place prior to the crematorium being erected, and "…if something goes wrong they [the residents] suffer".
81 Mr T Gough pointed to the need to ensure that public health regulations are met in respect of the ash disposal hole and suggested that the hole should be fenced off.
82 Ms B Hudson asked if people are concerned about water pollution from the crematorium why would they not be concerned about the runoff from the cemetery opposite in Kerlew Street.
83 It is important to remember that in this present case, I am being asked to decide whether the modification application might be approved after consideration of the proposed intensification of the use, in particular the impact of cremating 800 per annum when compared with the existing of 400 bodies per annum. Many of the concerns held by the residents relate to the existing use. I must then weigh up the resident evidence that bears on the modification application. I must put aside the concerns that do not relate to the modifications or have no real basis in fact.
84 Contrary to the evidence of the residents, the expert witnesses, in the present case, were satisfied that the particulate, dioxin and mercury emissions from the stack were likely to be within acceptable limits provided the cremator were operated in accordance with the manufacturer's requirements. I am satisfied that the proposal is sufficiently removed from nearby residences (by at least a distance of some 100m to the nearest non-related residence) to ensure that any impacts would be kept within acceptable limits. Such a buffer zone is similar to that required between light industrial and residential uses.
85 Addressing the issues raised by the resident objectors in their original submissions, Mr Sneddon, the Court-appointed town planning expert stated, [Note: Exhibit 4 pp 9, 10, 11, 12 and 13] that:
· the proposed modifications do not involve any alterations to the physical dimensions or setting of the existing crematorium, or change the character of the locality;
· the proposed modifications do not change the physical scale of the facility to a 'large scale crematorium';
· the facility is generally visually screened from residential/ rural residential areas within the locality by either surrounding buildings or native vegetation;
· the nearest dwelling which is not associated with the facility is located about 100m from the land;
· the proposed extension of hours of operation will not result in significant social impacts on the surrounding residential area. Emissions from the stack have been observed to be generally clear and no adverse health impacts in the vicinity of the cremator are predicted by the increase in cremator [use];
· the proposal will not have an adverse impact on tourism in the locality;
· issues relating to buffer zones and the height of the emission stack have no relevance to the proposed modifications; and
· the proposed modifications to the operation of the crematorium are not contrary to planning principles applied by the Court.
86 The residents were concerned that the proposed intensification of the use would have an unacceptable impact on the character and amenity of the locality and sense of place. However, I am satisfied on the evidence of the air pollution, traffic, noise and town planning experts that:
· the proposed modified development would not lead to a significant increase in the environmental impacts from gaseous emissions from the cremation facility. Certain of the gaseous emissions [namely particulates and dioxin] would be monitored and steps would be taken to ensure that the air quality and health risks would be kept within reasonable limits;
· there would not be an unreasonable increase in traffic in the locality due to the transportation of an increased number of bodies to the cremation facility. This issue did not loom large in the hearing and I am satisfied that with Condition 57 imposed, requiring all hearses to enter and leave the crematorium via Kerlew Street and Wine Country Drive that such impacts would be kept to a minimum;
· there would not be an increase in noise generation from the cremation facility as a result of the proposed increase in the amount of cremations and the extended hours of operation over which those cremations will take place. I am satisfied that the dwellings of nearby residents are sufficiently removed as to ensure that noise of fans used for the cool-down process would not adversely impact on neighbouring residents; and
· there would not be an increase in odour to surrounding residents as a result of the increase in cremations and the reduction in furnace temperature. The operating temperatures of the cremator are to be in accordance with the manufacturers requirements and I am satisfied that with the added precautions for weighing the coffins prior to charging the cremator for the last time each day that the previous concerns with regard to smell and black smoke would be overcome.
Character of the locality
87 Under the heading of planning issues the respondent council questioned whether the proposed modification would be consistent with the character of development in the locality.
88 Based on the evidence of Mr Sneddon, the Court-appointed expert on planning matters, [Note: Exhibit 4, p 8], I am satisfied that the scope of the modified operation of the crematorium will be in keeping with the 'village atmosphere' of Nulkaba. In this respect, I am satisfied that it makes no difference whether there are 400 or 800 bodies cremated each year. Also, Mr Sneddon was of the opinion that the small precinct of St Patrick's Church, the Nulkaba Cemetery would be effectively separated from surrounding rural residential areas by existing buildings and vacant land and remnant vegetation, [Note Exhibit 4, p 7]. There would be no change to the existing physical form of the crematorium.
89 Based on Mr Sneddon's evidence, I am also satisfied, that the modified consent would be consistent with the objectives under DCP12 for Nulkaba smallholdings. I take into account the form of existing development and/or development likely to occur in the adjoining zone 2(a) to the north, zone 1(c) to the west and zone 5(a) to the south.
Authorities
90 Mr Maston took me to a number of authorities, which I have distinguished, largely for the reasons submitted by Mr Larkin. I have dealt with this modification application on its merits, largely on the basis of the principal-contested issues, [Note: Segal & Anor v Waverley Council [2005] NSWCA 310 (15 September 2005).
91 I have also considered the modification application against the principles of the Court relating to amenity impacts. I would not refuse the application for any inconsistency in this regard.
92 For the above reasons, the appeal is upheld.
Conditions
93 The conditions are those in Exhibit 19, as amended during the hearing, having regard to the applicant's response to conditions in Exhibit J and based on the evidence and recommendations of the experts.
94 Dr Homes of Holmes Air Services, Mr McLean of Major Engineering Pty Limited, Mr Davies of SKM Limited and Mr Court of J D Court and Associates Pty Limited conferred on 18 October 2005, concerning a proposed modified consent condition for testing the Nulkaba cremator and agreed to delete the original Condition 12 of the original consent and to replace it with:
(a) The operator shall arrange for stack emission testing to be carried out within six (6) months of the amended consent and then at twenty-four (24) months.
(b) The testing shall determine the following emission characteristics:
(i) solid particles;
(ii) dioxins.
(c) The testing should be carried out according to the 'Approved methods for sampling and analysis of air pollutants in NSW (NSW EPA 2003) as updated from time to time.
(d) The results of the test should be submitted to Council was an appropriate commentary within one month of the test.