ACM Landmark Pty Limited (ACN 087 236 217) v Cessnock City Council

Mark Makhoul v Sydney City Council [2005] NSWLEC 331; CASES CITED: North Sydney v Michael Standley & Associates (1987) 97 LGERA 443; Segal & Anor v Waverley Council [2005] NSWCA 310 (15 September 2005)

DATES OF HEARING: 17/10/2005, 18/10/2005 and 19/10/2005

APPLICANT: Mr P Larkin, barrister, instructed by Mr G W Williams, solicitor SOLICITORS: Thompson Norrie LEGAL REPRESENTATIVES: RESPONDENT: Mr J Maston, barrister, instructed by Mr A McKelvey, solicitor SOLICITORS: Sparke Helmore Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10377 of 2005 (s96)- ACM Landmark Pty Limited (ACN 087 236 217) v Cessnock City Council

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Cessnock City Council (council) of a modification of development consent, for an intensification of the use of a recently erected crematorium at Lot 100, DP 1052896, Kerlew Street, Nulkaba on the corner of Kerlew Street and Wine Country Drive, Nulkaba. 2 The modification relates to the hours of operation of the crematorium, the number of bodies to be cremated per annum and the temperature required for the operation of the primary combustion chamber. The applicant has also requested that the hours of operation apply only to the cremation process and that these times not include the "heating-up" and "cooling-down" times of the cremator. 3 I visited the land in company with the parties on the morning of the first day of proceedings and heard evidence on site from a number of concerned residents. 4 I have concluded that the modification application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979, for reason that: · it would be substantially the same development as was originally consented to by the council and would be of minimal environmental impact; · it would not have an unacceptable impact on the character and amenity of the locality; · it would be consistent with the character of development nearby; · there would be no change to the physical scale of the crematorium and there would be an intensification of the use of the cremator; · sufficient distance would be provided between the proposal and nearby residential uses; and · the proposal would not be contrary to the principles of the Court. The land 5 The land is situated on the northwestern corner of the intersection of Kerlew Street and Wine Country Drive at Nulkaba. It is an 'L'-shaped lot. The land has a frontage to Kerlew Street of about 107.6m and a frontage to Wine Country Drive of about 38.6m. 6 The land is flat and has an area of 6,096m2. Erected on the land is the historic sandstone former St Patrick's Church and gardens. Also erected on the western rear part of the land is a crematorium approved by Development Consent No 8/2000/433/1 and erected during 2002. 7 The land is about 2.5 kilometres from the centre of Cessnock. To the north and northwest of the existing crematorium are residential premises at about 270m and 350m distant respectively. The nearest residential premises to the crematorium is about 50m distant. However, that residence is associated with the crematorium. The nearest dwelling that is not associated with the crematorium is about 100m from the crematorium on the land. Also on the opposite side of Wine Country Drive there are rural residential premises. To the south of the land on the other side of Kerlew Street is a cemetery that is largely completed. Only plots that were previously secured are now available. Relevant planning controls Cessnock Local Environmental Plan 1989, (CLEP) 8 Under the provisions of the CLEP as amended, the land is zoned Rural 1A, and the proposal is permissible with consent. 9 When the council originally considered the crematorium application, it was found to be consistent with the objectives of the zone. In his report to the council on the present application, Mr Sandell stated, [Exhibit 1, Vol 1, Tab 9, p 8]: …the proposed amendments may also be considered in this regard. The proposed amendments are consistent with the general development principles set down under Clause 10 of the Plan. 10 Other relevant planning instruments include: Development Control Plan No 2 - Car parking, (DCP2) 11 DCP2 sets criteria for car parking. Six (6) car parking spaces were provided to serve the original cremator. There is no issue between the parties as to the provision of car parking for the proposed modification application. Additional traffic to the crematorium would be anticipated; however, it is proposed that the route be via Kerlew Street and removed from residential properties. Development Control Plan No 12 - Nulkaba Village Small Holdings Area, (DCP12) 12 DCP12 came into force on 21 September 1994 and was amended 6 August 1997 and has the objectives to, [Note DCP12, p 5]: a. establish principles for future expansion of the Village of Nulkaba; b. assist people who intend to make applications for development, subdivision or building by providing information and advice on the issues to be addressed and the type of documentation required; c. provide more details about preferred land uses, planning controls and development principles which apply to the land within Nulkaba; d. ensure that applications for development, subdivision and building are fully documented and that the proposed development has been designed to fit the particular site conditions and the principles and standards in the development control plan. 13 There is no reference to crematoria in the DCP12. Development Control Plan No 38 - Public Notification & Advertising, (DCP38) 14 There was no issue between the parties in respect of DCP38. The development applications for 1600 cremations per annum and 1000 cremations per annum was notified in accordance with DCP38, and therefore the council considered it unnecessary to again advertise the application amended to 800 cremations per annum that is before the Court in this appeal. Development Control Plan No 39 - Buffer zones, (DCP39) 15 DCP39 came into force on 17 November 1999 with the purpose "…to provide clear, consistent development guidelines in order to minimise land use conflicts between potentially incompatible uses." 16 There are no guidelines relating to crematoria in DCP39. However, for 4(a) Light industrial zoned land in Category B, the minimum separation distance from Category A land uses is 100m. Category A uses include dwellings and are considered to be 'sensitive land uses'. Category B land uses are those that do not generate significant residual emissions and do not warrant specific protection from them unless the emission is harmful to health. These uses include most light industrial uses, [Note: DCP39 p 7]. 17 Mr Sandell in his report to the council concerning the implications of DCP39 stated, [Note: Exhibit 1, Vol 1, Tab 9, p 9]: The implications of the provisions of this plan received an assessment at the time of consideration of the original application for the cremation facility. The assessment to determine the Buffer Zones required consideration of the detailed Air Quality and Health Risk Assessment undertaken by Holmes Air Sciences in October 2000 together with advice from Council's own air pollution consultant, Mr John Court. The findings of the health risk assessment and Mr Court's conclusions were that the emissions from the cremator would not result in any adverse impacts for residences in the local area. Mr Court's comments remain unchanged in regard to the proposed amendments. Hunter Regional Environmental Plan 1989, (HREP) 18 The former St Patrick's Roman Catholic Church, and the adjoining presbytery located on the subject land, is listed as being of local heritage significance in Schedule 3 of the HREP. Clause 13 of the HREP requires the council, or the Court on appeal, to assess the effect of development on the heritage significance of an item and setting when development is located in the vicinity of the item. As the physical form of the crematorium has been previously assessed there was no dispute between the parties that there would be any adverse impact on the heritage significance of the item. The consent and its history 19 Development Application No 8/2000/433/1 for the original crematorium, was considered by the council at its meeting of 21 November 2001 when it granted consent subject to 56 conditions. This consent issued 13 December 2001. The council had previously considered a statement of environmental effects and a report on risk assessment by Holmes Air Sciences and two (2) reports on air quality impacts by the council's consultant, J D Court and Associates Pty Ltd. 20 Aspects of air quality impact were considered in these reports and compliance with regulatory limits of mercury, dioxin and fine particulate emissions were assessed to be within acceptable limits. In September 2003, after the crematorium had been operating, emission tests were carried out. A final report on this testing was submitted to Council on 8 March 2004 and it concluded, "…the emissions from the cremator complied with the emission limits specified in the NSW Clean Air (Plant and Equipment) Regulation 1997 (CAPER), where applicable, and the Cessnock City Council conditions of consent." 21 The applicant now proposes to modify that development consent No 8/2000/433/1 under s 96(1A) of the Environmental Planning and Assessment Act 1979. The modification application was lodged with the respondent council on 3 November 2003, [Note: Exhibit 1, Tab 1, letter dated 3 November 2003]. The applicant sought to amend Conditions 2, 4 and 44 of the original consent. These conditions are: 2. The proposed cremation facility shall process a maximum of four hundred (400) bodies per annum.

4. The temperature in the primary combustion chamber shall be maintained above 900°C under oxidising conditions whenever a body is being cremated.
5. Following commencement of occupation, the premises shall operate or trade only between the times stated as follows: Mondays to Fridays 8.30a.m. to 4.00p.m. 22 The applicant originally sought by letter dated 3 November 2003, to amend Condition 2 to increase the maximum bodies cremated per annum from four hundred (400) to sixteen hundred (1,600), [Note: Exhibit 1, Vol 1, Tab 1]. This was later amended to 1,000 bodies by letter dated 20 October 2004, [Note: Exhibit 1, Vol 1, Tab 8, Annexure H]. Then by letter dated 3 June 2005, the applicant amended the modification application to fix the maximum number of bodies cremated at 800, [Note: Exhibit 1 Vol 1 Tab 9]. Mr Sandell, the council's reporting officer in his report dated 6 June 2005, stated that the applicant had originally applied to cremate up to 400 bodies per year based on "…a best estimate of the operation of the facility" and "…on the basis of expected funeral services." Hence the council in granting consent to the crematorium had limited the number of bodies per year cremated to that number, [Note: Exhibit 1, Vol 1, Tab 9, p 2]. 23 The applicant seeks to amend Condition 4 to read: The temperature within the primary combustion chamber shall be maintained at or above the manufacturer's specifications to achieve oxidising conditions whenever a body is cremated. 24 Mr Sandell in his report explained that Condition 4 was imposed on the original consent upon the recommendation of the council's consultant Mr J Court, [Note: Exhibit 1, Vol 1, Tab 9, p 2]. In relation to the proposed amendment Mr Court now states, "…the intent of specifying this condition was to ensure complete combustion for minimisation of soot emissions and reduction of dioxin emissions. The testing for soot and dioxins, as discussed above, has indicated low levels of emission at typical operating temperatures." 25 The applicant seeks to amend Condition 44 to extend the hours of operation: · Monday to Friday - 8.00 am to 5.00 pm, · Monday to Friday (daylight saving) 8.00 am to 6.00 pm, · Saturday - 8.00 am to 1.00 pm.

26 The applicant also seeks to modify Condition 44 so that automatic-heat-up/ cool-down of the cremator may occur outside the above-mentioned hours. 27 Mr Sandell in his 6 June 2005 report stated, [Note: Exhibit 1, Vol 1, Tab 9, p 3]: 'Heat-up' of the unit takes approximately one hour; therefore it is recommended that the hours of operation reflect this to allow, 'heat-up' from 7.00am. 'Cool-down' of the unit incorporates a fan-assisted process and is dependent on ambient air temperatures. The ducted fan continues to operate until the unit reaches 585 degrees Celsius. The fan draws air through the cremator unit and air temperature variations impact on the time it takes for the unit to reach 585 degrees Celsius (ie during summer when [ambient] temperatures may reach 40 degrees Celsius, the unit would take longer to cool down than in winter when [ambient] temperatures are lower). The operator of the unit has indicated that the unit may take up to three (3) hours to cool down to 585 degrees Celsius in summer. 28 Mr Sandell recommended to the council in considering the modification application that an allowance of two (2) hours be given for 'cool-down' on top of the recommended hours (ie 'cool-down' being 5.00pm to 7.00pm - Monday to Friday and 6.00pm to 8.00pm during daylight saving and 1.00pm to 3.00pm on Saturdays). He recommended to the council that the allowance for two (2) hours would require the operator to manage the input through the unit to ensure that 'cool-down' can be completed within the stipulated hours. Notification 29 The proposed original modification application for the cremation of 1,600 bodies per annum as outlined in the Director of Corporate and Regulatory Services Report to Council No 150/2004 on 19 January 2005 was advertised and notified in accordance with the provisions of the council's Development Control Plan No 38 - Public notification and advertising plan and the council received seven (7) letters of objection. 30 The amended modification application to cremate 1000 bodies per annum was notified by letter dated 8 March 2005, to nearby owners and occupants and the council received fifty-nine (59) letters of objection and one letter of support. 31 The modification application to cremate 800 bodies per annum has not been advertised and notified due to the reduced environmental impact of the reduction in the number of cremations from 1,000 to 800 per annum. Mr Sandell has identified the following grounds of objection in the submissions to the 8 March 2005 notification, [Note: Exhibit 1, Vol 1, Tab 9, p 5]: · The application for amendment to the consent is invalid, as it does not comply with cl 115 of the Environmental Planning and Assessment Act Regulations 2000, in that the application does not contain a description of the proposed modification and its expected impacts. · The operation of the cremation facility over the past two (2) years has resulted in a number of breaches to the conditions of consent. A significant increase in the number of cremations will only exacerbate these breaches. · A reduction in the temperature of the primary combustion chamber to 700 degrees will reduce the efficiency of the combustion process and lead to the emission of odours that will impact upon the amenity of the surrounding area. The reason for the reduction appears to only relate to economic considerations. · The manufacturer's own information submitted to Council contains operating temperatures for the primary combustion chamber. "If Council consents to a decrease in temperature in the primary chamber to 700 degrees the temperature will be below that required by the manufacturer." · The proposal does not constitute an amendment under s 96(1A) of the Environmental Planning and Assessment Act 1979 as the significant increase in the number of bodies to be cremated will result in a development that is not substantially the same as that approved by Council. · The proposal does not constitute an amendment under s 96(1A) as the modification sought does not involve minimal environmental impact. The increase in emissions of mercury, dioxin and other toxic substances and the increase in the amount of traffic generated to the site cannot be said to be minimal environmental impact. · There is already a serious traffic problem at the intersection of Wine Country Drive and Kerlew Street. The cumulative effect of traffic generated by the proposal and other activities in the area must be considered. A traffic study should be undertaken. · The scale of the proposed activity will be increased from a 'small family business' to a large-scale crematorium facility similar to those conducted in Sydney and is not compatible in the locality. · The proposed extension to the hours of operation into the evenings during daylight savings and over the weekend will result in significant social impacts on the surrounding residential area. Residents will be unable to enjoy their outdoor areas while they can see smoke being emitted from the stack and have concern over what is being emitted into the atmosphere. · The original proposal by the applicant limited the number of cremations to 400 and the hours of operation included the heating-up and cooling-down times. The applicant and developer used these figures to gain the initial approval and should not be supported to change them because it now doesn't suit. · The proposal will have an adverse impact on tourism in the locality particularly its operations on weekends when tourists travelling along Wine Country Drive will be able to view emissions coming from the stack. · The development consent requires compliance with the crematorium guidelines in relation to buffer zones and the height of the emission stack. · The proposal is contrary to planning principles recently handed down by the Land and Environment Court in several court cases. These relate to the intensification of a use and its impact on residential amenity and whether the crematorium would be permitted within adjoining zones. · The testing undertaken on the cremation facility following its commencement was unreliable and was not in compliance with the conditions of consent. No reliance should have been [placed] on these tests or on the previous air studies by Holmes Air Sciences as they were predicated on a small cremator with a maximum capacity of 400 bodies per annum. The hearing 32 The appeal was filed 20 April 2005. 33 On-site on 17 October 2005, the Court heard from many residents including: · Mr G J Thompson, resident of No 18 Austral Street, Nulkaba; · Mr A Bourke, resident of No 75 Wine Country Drive, Nulkaba; · Mr P C Milton, resident of No 3 Occident Street, Nulkaba; · Ms K Thompson, resident of No 1A Austral Street, Nulkaba; · Ms T P Mallik, resident of No 9 Occident Street, Nulkaba; · Mr T Gough, resident of No 1 Kerlew Street, Nulkaba; · Mr K J Goodwin, resident of No 86 Wine Country Drive, Nulkaba; · Ms F Lynch, resident of No 3 Rothbury Street, Nulkaba; · Ms K Mallik, resident of No 9 Occident Street, Nulkaba; · Ms J Goodwin, resident of No 86 Wine Country Drive, Nulkaba; · Mr G Thompson, resident of No 1A Austral Street, Nulkaba; · Mr G P Burke, resident of No 75 Wine Country Drive, Nulkaba; and · Ms B Hudson, resident of Main Road, Brunkerville. 34 In Court, Mrs T P Mallik; Mr P C Milton; Mrs V E Duffy, resident No 1B Occident Street, Nalkaba; Mr G P Bourke; Mrs K Thompson; Mr K J Goodwin, and Mrs C J Crump, resident of No 25 Boreas Street, Nulkaba, gave oral evidence. 35 At the hearing the Court received written evidence on behalf of the respondent council from Mr M Davies, atmospheric scientist, [Note: Statement of evidence, Exhibit 6]. 36 On behalf of the applicant, Mr J D McLean, Manager, Sales and Technology Major Furnace Pty Limited, [Note: Statement of evidence, Exhibit A]; Dr N Holmes, atmospheric physicist, [Note: Statement of evidence, Exhibit B]; Mr A Welbourne, acoustic engineer, [Note: Statement of evidence, Exhibit C]; and Mr C S Bower, manager of the crematorium, [Note: Statement of evidence, Exhibit D]; gave evidence. 37 Mr D Sneddon, consultant town planner was the Court-appointed town-planning expert, [Note: Exhibit 4]. Mr T Keating, was the Court-appointed traffic management and safety consultant, [Note: Statement of evidence, Exhibit 5]. 38 A joint statement was received from Dr Holmes and Mr Davies, concerning air quality and health risk impact associated with the proposal to increase the operations at Nulkaba Cremator from 400 cremations to 800 cremations per annum [Note: Exhibit 3]. They concluded that "…the air quality and health risk impacts of relevant air pollutants have been adequately addressed with respect to up to 800 cremations per year and up to 8.6 cremations [on average] per day and that impacts considered are acceptable", [Note: Exhibit 3 p 2]. 39 Dr Holmes, Messrs McLean, Davies and Court conferred concerning the modified conditions for testing the Nulkaba Cremator, [Note: Exhibit 18]. They were prepared to recommend approval of the increase from 400 to 800 cremations per year on the basis of the conditions proposed. The issues 40 On 22 July 2005 the council filed an amended statement of issues: 1 SUBSTANTIALLY THE SAME DEVELOPMENT 1.1 Whether the proposed modification is substantially the same development as the development for which the consent was originally granted. Particulars (a) The proposal does not constitute an amendment under section 96(1A) of the Environmental Planning & Assessment Act 1979 as the significant increase in the number of bodies to be cremated will result in development that is not substantially the same as that approved by Council. (b) The proposal is likely to significantly increase the emission of mercury and dioxins from the site having an environmental impact, which is not minimal. (c) There will be an increase in traffic in the locality due to the transportation of an increased number of bodies to the cremation facility.

2 MINIMAL ENVIRONMENTAL IMPACT 2.1 Whether the modification proposed in the application is of minimal environmental impact such that the development consent can be validly modified pursuant to s 96(1A) of the Environmental Planning & Assessment Act 1979. Particulars (a) The proposed modification is likely to significantly increase the emission of mercury and dioxins from the site having an environmental impact that is not minimal.

3 AMENITY AND SOCIAL IMPACTS 3.1 Whether the proposed development will have an unacceptable impact on the character and amenity of the locality and sense of place of the local community? Particulars (a) the proposed modified development will lead to a significant increase in the environmental impacts from gaseous emissions from the cremation facility; (b) there will be an increase in traffic in the locality due to the transportation of an increased number of bodies to the cremation facility; (c) there will 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; and (d) there will be an increase in odour to surrounding residents as a result of the increase in cremations and the reduction in furnace temperature.

4 PLANNING ISSUES 4.1 Whether the proposed amendments are consistent with the character of development in the locality? Particulars (a) The size of the amended operation is not in keeping with the "village atmosphere" of Nulkaba. (b) The proposed amendments are not consistent with "Development Control Plan 12 - Nulkaba Small Holdings " and are not conducive to further development in Nulkaba. (c) The proposed amendments do not take into account the form of existing development and/or development likely to occur in the adjoining Zone 2(a) to the south, Zone 1(c) to the west and Zone 5(a) to the south.

5 EMISSIONS 5.1 Whether the proposed amendments to the development consent are likely to create an unreasonable and unsatisfactory increase in gaseous emissions from the cremation facility. Particulars (a) Mercury emissions from crematoria derive primarily from mercury amalgams in dental restorations, which are almost completely volatised in the combustion process. Any increase in cremation numbers will lead to an increase in mercury and dioxin emissions from the cremation facility. (b) Air testing was not conducted by the Applicant strictly in accordance with Council's development consent and therefore it is uncertain if there are any health risks posed by the operation of the cremation facility.

6 TRAFFIC 6.1 Whether the proposed development is likely to create adverse traffic impacts for the area and whether those impacts are so unreasonable that the proposed amendment to the development should be refused? Particulars (a) The proposed development will increase the vehicle movements to and from the site due to the increase in the number of cremations. The Applicant has not adequately assessed traffic issues associated with the increased volume of traffic in the vicinity of the site.

7 ISSUES RAISED BY OBJECTORS 7.1 The application for amendment to the consent is invalid as it does not comply with Clause 115 of the Environmental Planning and Assessment Act Regulations 2000 in that the application does not contain a description of the proposed modification and its expected impacts. 7.2 The proposal does not constitute an amendment under Section 96(1A) of the Environmental Planning and Assessment Act 1979 as the significant increase in the number of bodies to be cremated will result in a development that is not substantially the same as that approved by Council. 7.3 The proposal does not constitute an amendment under Section 96(1A) as the modification sought does not involve minimal environmental impact. The increase in emissions of mercury, dioxin and other toxic substances and the increase in the amount of the traffic generated to the site cannot be said to be of minimal environmental impact. 7.4 There is already a serious traffic problem at the intersection of the Wine Country Drive and Kerlew Street. The cumulative effect of traffic generated by the proposal and other activities in the area must be considered. A traffic study should be undertaken. 7.5 The scale of the proposed activity will be increased from a "small family business" to a large-scale crematorium facility similar to those conducted in Sydney and is not compatible in the locality. 7.6 The operation of the cremation facility over the past two (2) years has resulted in a number of breaches to the conditions of consent. A significant increase in the number of cremations will only exacerbate these breaches. 7.7 A reduction in the temperature of the primary combustion chamber to 700 degrees will reduce the efficiency of the combustion process and lead to the emission of odours that will impact upon the amenity of the surrounding area. The reason for the reduction appears to only relate to economic considerations and not to the health of local residents and is contrary to the figure quoted in the manufacturer's own information submitted to Council. 7.8 The manufacturer's own information submitted to Council contains operating temperatures for the primary combustion chamber. If Council consents to a decrease in temperature in the primary chamber to 700 degrees the temperature will be below that required by the manufacturer. 7.9 The proposed extension to the hours of operation into the evenings during daylight savings and over the weekend will result in significant social impacts on the surrounding residential area. Residents will be unable to enjoy their outdoor areas while they can see smoke being emitted from the stack and have concern over what is being emitted into the atmosphere. 7.10 The original proposal by the Applicant limited the number of cremations to 400 and the hours of operation included the heating up and cooling down times. The Applicant and developer used these figures to gain the initial approval and should not be supported to change them because it now doesn't suit. 7.11 The proposal will have an adverse impact on tourism in the locality, particularly its operations on weekends when tourists travelling along Wine Country Drive will be able to view emissions coming from the stack. 7.12 The development consent requires compliance with the crematorium guidelines in relation to buffer zones and the height of the emission stack. 7.13 The proposal is contrary to Planning Principles recently handed down by the Land and Environment Court in several court cases. These relate to the intensification of a use and its impact on residential amenity and whether the crematorium would be permitted within adjoining zones. 7.14 The testing undertaken on the cremation facility following its commencement was unreliable and was not in compliance with the conditions of consent. No reliance should have been taken on these tests or on the previous air studies by Holmes Air Sciences as they were predicted on a small cremator with a maximum capacity of 400 bodies per annum.

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.

95 These experts also recommended that: (4) Testing shall be carried out on at least four (4) bodies and caskets. Samples shall only be taken during the period of combustion of the body and caskets (ie not during a furnace warm-up). The conditions of the body and caskets are to be recorded in accordance with Condition 10. (5) Emissions from the stack must not exceed the following concentrations: (a) solid particles-100 mg/Nm3; and (b) dioxins (TEQ)-1 ng/Nm3. (6) The concentrations specified above are the NSW regulations limit a solid particles and the dioxin concentration is the limit for existing cremators in the United Kingdom in the absence of any dioxins regulations for non-scheduled NSW cremators. (7) We note that dioxin concentration specified in 5(b) corresponds to the concentration used by Dr Holmes in the health risk assessment in 2(b) above, where it was shown that the health risks complied with the Department of Environment and Conservation's 1-hour criteria for dioxins. (8) If any stack omission test discloses that emissions exceed the above concentrations the operator, in consultation with the council, masked immediately investigate the reasons and take action to reduce emission to comply. Any such reduction is to be confirmed by a further test within one (1) month. (9) We further recommend that the last paragraph in Condition 10 of the existing consent be modified to read: "These records are to be held for at least twenty-four (24) months after the modified consent is granted and made available to council officers on request at any time". 96 The respondent council sought to modify this condition by limiting the number of cremations to four per day in the respondent's without prejudice draft conditions, [Note: Exhibit 19]. I have not acceded to this request by the council. In Condition 2, I have left this open as this would be limited by the operation of the cremator and an upper limit of 800 cremations per year. 97 In Condition 3, I have added the words "…to the satisfaction of the Director, Corporate and Regulatory Services, Cessnock City Council" as sought by the respondent, and that the operator is "…a person trained and experienced in the operation of the cremator, [and] will be present during cremation at all times". 98 In the new Condition 5A I have added the words sought to be included by the council: (iii) A print out of the readings from the measuring instrument shall be kept on the premises for twenty-four (24) months from the date of the modified consent and thereafter for the prior twenty-four (24) month period at all times and be made available to the Council's officers on request at any time. 99 The applicant agreed to include in Condition 11, that I have attached, a yearly summary report to the Council to provide: (c) an estimate of the amount of mercury emitted by monthly period shall be submitted with each report, the estimates being derived from the edentulous status of corpses, the number of cremations undertaken during the period and current information from Australian dental authorities on the mercury burden carried in teeth by the general population. 100 In Condition 12, I have not added mercury and PM10 as requiring testing, or the limits in for Mercury of 0.6 mg/s and for PM10 of 0.03 g/s as requested by the respondent council. I have not reduced the dioxin (TEQ) to 0.1ng/Nm3 as requested by the council. However, I have added the words: If any stack emission test discloses that emissions exceed the above concentrations the operator, in consultation with the Council, must immediately investigate the reasons and take action to reduce emission to comply. Any such reduction is to be confirmed by a further test within one (1) month. 101 In Condition 44, I have included the hours of operation sought by the applicant to exclude heat-up and cool-down times. 102 I have added a new Condition 57: Hearses are to access and leave the premises using only that section of Kerlew Street, Nulkaba, which is between the premises and Wine Country Drive. The operator of the cremator shall direct all drivers accordingly. 103 I have added a new Condition 58 requiring the applicant to prepare a plan of management describing the operation of the cremator. Costs 104 As there were no submissions made in respect of costs. Each party should pay its own costs. Orders 105 My orders are:

1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.
2. The application to modify under s 96(1A) of the Environmental Planning and Assessment Act 1979 development consent No 8/2000/433/1 lodged with the respondent council on 3 November 2003, for a crematorium at Lot 100, DP 1052896, Kerlew Street, Nulkaba on the corner of Kerlew Street and Wine Country Drive, Nulkaba, is approved subject to Conditions 1 to 58 in Annexure A.
3. Each party is to pay its own costs.
4. The exhibits are returned, with the exception of Exhibits J, 3, 4, 18 and 19.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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