Al-Mabarat Benevolent Society Limited v Goulburn Mulwaree Council

Land and Environment Court (NSW)|2017-06-23

Judgment

This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA/1021/1415 (DA) for the establishment of a cemetery and Service Hall at 247 Highland Way and 15213 Hume Highway, Marulan (site) by Goulburn Mulwaree Council (Council). The Applicant also seeks permission under the Roads Act 1993 for road works on Highland Way and under the Local Government Act 1993 to carry out water supply, sewerage and stormwater drainage work.
For the reasons that follow I have determined that the development proposed by the Applicant in its DA is not permissible.

Background

The site is within a rural landscape characterised by agricultural properties, native vegetation and has unusually high ecological value.

The proposal

The Proposal comprises the following works: 1. The establishment of a cemetery with the capacity for approximately 11, 500 burial plots; 2. Installation of a 100,000L rainwater tank; 3. The construction of a service hall (800m2) plus 3m wide colonnade with a maximum height of 7.4m; 4. Car and bus parking (173 sealed car parking spaces, 40 unsealed parking spaces and three accessible parking spaces); 5. Construction of a vehicular road access (6.5m) from the Highland Way and associated drainage structures; 6. Construction of two amenities buildings with rainwater tanks and septic tanks; and 7. Construction of access road and 12 car parking spaces within the cemetery.
In summary, the further amended DA: 1. repositions the car park and service hall in order to meet bushfire standards and for the car park to act as an acceptable community bushfire refuge; 2. amends the internal road design due to the repositioning of the car park and service hall and extension of the internal access road north / northwest; 3. amends the proposed traffic management solution by proposing the removal of the right hand turn from Highland Way onto the Hume Highway and requiring vehicles leaving the Site and wishing to travel north to Sydney to travel south towards Marulan and then utilise a proposed roundabout at George Street and Brayton Road to enter the Hume Highway ; 4. adopts inner protection zones and outer protection zones which have been agreed by the bushfire experts in joint conferencing and amends the proposed bushfire emergency evacuation plan; 5. proposes a different area of vegetation to be cleared. The area to be cleared is now stated to be 4.35ha ( of which 1 hectare is to be modified); and 6. amends the plan of management.
As it presently stands the amended application has a concurrence (on a conditional basis) from Water NSW and, the proposed road works are supported by all relevant traffic bodies including the RMS (Exhibit 4 Vol 4 folio SB 46-48); and the Council's traffic Committee which includes police representatives (Exhibit 4 Vol 4 folio SB 34-SB 38). The remaining concerns in respect of these matters are raised by the resident evidence.
A number of other contentions have also been resolved subject to the imposition of the Council's conditions of consent (Exhibit 14). These include:

Contention 4 - Indigenous Archaeology and Heritage;
Contention 6- Visual impact;
Contention 7- Bush Fire ;
Contention 9 - Noise and light spillage

Issues

The balance of the issues that remain in dispute turn largely on legal submissions in respect of jurisdictional threshold issues rather than merit issues. The two jurisdictional issues raised can be summarised as follows: 1. Does the Court have jurisdiction to determine the DA in the absence of a species impact statement (SIS) for each threatened species that has been identified by the parties' ecological experts to be significantly impacted by the development? The Council contends that this issue of significant impact is to be determined on what is before the Court as part of the DA, and not what is planned as a condition to be imposed; 1. Is the development properly characterised as a "cemetery" as defined under the GLEP? The Council contends that the intended Service Hall does not conform to the definition of "cemetery" since its facilities and the proposed activities it is to host fall outside the meaning of an "associated building" for "memorial services".

Expert evidence

Expert evidence was provided on behalf of the applicant by Mr Derek Sinclair, Mr Nicholas Skelton, Mr Lance Syme, Ms Natalie Stiles, Ms Katherine Harris, Mr Daniel Dhiacou and on behalf of the Council by Mr Russell Allison, Mr Pat Guinane and Dr Marranci.
The experts prepared individual statements and joint reports and gave oral evidence.
The parties also provided comprehensive written submissions in respect of the evidence and contentions including the jurisdictional issues.
Their submissions are summarised below.

Council's submissions

With respect to permissibility issue the Council's case may be distilled down to the following propositions: 1. the Service Hall is not "an associated building" within the meaning of the definition of cemetery in the GLEP; 2. the definition of "cemetery" only permits the "associated building" to be used for Memorial services, and not funerals; 3. the building will be used as a "funeral home" which is a prohibited use in the zone; and 4. use of the 'wake room' as a 'place for private contemplation' is not for a purpose of a "Memorial service".
When properly characterised, the Council submits that the primary purpose of the development is "a place of public worship", or a "funeral home" or a "mortuary", and not "a cemetery". In submitting this, the Council identifies the proposed Service Hall and the wake room as the two contentious elements of the development.
The Council does not accept that the evidence supports the characterisation of the development contended for by the Applicant. Put simply, it contends that the evidence fails to adequately describe the uses of the wake room and leaves open the possibility for the room to be used for viewing and the Islamic religious law rites of washing and enshrouding of the body. It also believes that the Service Hall is inappropriately characterised due to its size, intensity of use and its multifunction purposes including those of wake room, meeting rooms, reception area, rest rooms, administration office area, amenities, public Service Hall and other areas of use.
In classifying the development the parties agreed it is appropriate to determine the purpose that the development serves as use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535; [1964] HCA 37; 10 LGRA 147 at 150. They also agreed that the proper approach to the question of characterisation of use for the purposes of determining permissibility is identified by Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [27-28]; and Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147.
The Council submits that in order to satisfy the definition of "cemetery" in the GLEP the proposed development must involve a building or place used primarily for the internment of deceased persons or pets or their ashes. The focus of the definition is on a place or building and its primary use (i.e. for the interment of deceased persons or pets of the ashes). "Primary" means "chiefly" or "principally": Madog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGRA 443 at [12]. The proposed "Service Hall" and "wake room" in the present application, according to the Council, are not buildings or places used primarily for the internment of deceased persons.
It is further submitted that the additional words in the cemetery definition "whether or not it contains an associated building for conducting memorial services" are relied upon by the applicant to support the permissibility of the development as a whole. The Council relies on Mr Allison's expert assessment that within the funeral industry "memorial services" are different from "funeral services", in that "funeral services" are conducted prior to the disposition of the body remains, where as a "memorial service" refers to a service held after, or in addition to a funeral. It submits that the distinction between the two types of services is deliberate. A service conducted prior to the dispensing of the body falls within the definition of funeral home which on this site is a prohibited use.
Based on the evidence before the Court including the revised Plan of Management dated August 2016 filed on 2 September 2016, the Applicant in that location includes both funeral and memorial services to be held within the Service Hall. The revised PoM uses a combined definition of funeral and memorial services and has not distinguished between the two. Mr Allison does not consider that the definition of funeral and memorial services in the revised POM adequately explains the proposed uses (joint report page 4). It contains numerous references to the facility being used for "private contemplation" which it is submitted would suggest that it is not proposed to be used for "conducting memorial services", whether solely or otherwise. A place of "private contemplation" is not a place for conducting memorial service. On that basis alone the Council submits that the development is not permissible.
According to the Council if one has regard to the extent of the building in terms of size and the various other functions to be carried out within it including: a wake room; meeting room; offices; kitchen; and religious Minister's office comprising the primary use of the building rather than the cemetery located outside the building. The Council relies on the evidence given by Dr Marranci, an expert in Islamic anthropology. Relevantly, his evidence may be summarised to the following effect: 1. the very large space designed for the likely number of attendees and the infrequent use of the development for the burials and the overall design of the Service Hall indicates that the Service Hall has been designed as, and having regard to Muslim practices, is likely to be used as a "place of public worship". The average attendance at Islamic funerals is only 40 to 80 people, whereas the Service Hall arguably has a capacity for as many as 330 people; 2. the location of the room described as the "wake room" with its tiled floor indicates that the room maybe use the washing of body; and 3. the majority of Muslims prefer to perform the funeral prayer at the local mosque and it is not common for a "wakes" as that term is understood in Christian faith to be held. However, even if one was held, the room identified as the "wake room" is too small and not appropriately designed for that purpose (especially as there is only a thin wall separating it from a toilet).
According to Dr Marranci the development outlined in the application before the Court has " ...all the hallmarks of a Mosque with an attached graveyard'. Relevantly, on that basis it is submitted that the graveyard is the associated use not the Service Hall. Therefore, the development is not a cemetery.
In summary the Council submits on Dr Marranci's evidence that the proposed Service Hall is sufficiently large enough to enable it to be used for another purpose such as to engage the definition of "place in public worship". It has all the necessary facilities including a religious minister's office. It is disproportionately large when compared to the likely attendees. The proposed "wake room" brings into play the prohibited funeral home use or possibly also a mortuary. In that regard, the Council contends it is relevant for the Court to consider that when the DA was first lodged there was specific provision made for a room for the washing of bodies before burial (September 2014 Statement of Environment Affects). When the DA was amended in 2015, the body washing room was deleted, only to be replaced with a cool room or body holding room for holding bodies until the body was ready for burial. In August 2015 the DA was amended again to delete the cool room and body holding room, and convert the meeting room into a wake room.
According to the definition of cemetery in the GLEP the permitted use is limited to the interment of deceased persons etc. and the conducting of a memorial services. The Council submits that the defined term is quite specific in limiting the purpose of the associated building to the conducting of memorial service. Whereas the defined term "funeral home" means "premises that are used to arrange, conduct and cater for funerals and memorial services, whether or not the premises include facilities for the short-term storage, dressing and viewing of bodies of deceased persons." Focusing on the first part of the definition, the Council submits that it is clear that the defined cemetery use is not intended to encompass the use of land for the purpose of arranging or catering funerals or memorial services.
With respect to the second part of the definition of "funeral home" the Council contends it is engaged on the facts because it is inevitable that the proposed wake room will be used for at the very least the short term storage and viewing of bodies. As Mr Allison stated in his evidence there is nothing in the POM to preclude the wake room from being used for the shrouding or the viewing of bodies. Under the Public Health Regulation 2012 a dead body is required to be placed in a body bag for transport to the cemetery (cl 58). Once it is transported to the cemetery, the body will need to be removed from its body bag and shrouded for the burial. The only possible place that might occur is in the wake room. Therefore, it is submitted by the Council that all the facilities necessary to satisfy the definition of a funeral home are present: These are premises used to conduct and arrange funerals and memorial services; and there will be a facility for the short-term storage, dressing and viewing of the body (i.e. the wake room). The references in the Applicant's revised POM to the use of the wake room as a room for private contemplation room it is submitted, is not to detract from this conclusion. Indeed, the Council submits that a place of quiet contemplation is the polar opposite of a memorial service. The revised POM and plans filed on 4 August 2016 do not change Dr Marranci's opinion. The fact that the wake room has a tiled floor and is located immediately adjacent to the toilets demonstrates that the use of the wake room is unlikely to be limited to its stated purpose of a place the quiet contemplation.
Mr Allison the cemetery expert engaged by the Council agrees with Dr Marranci. Relevantly, irrespective of the revised POM he did not change his opinion as outlined his statement of evidence filed on 8 March 2016 namely: 1. That the size of the Service Hall is atypical relative to the number of proposed internments; 2. That the POM does not preclude the Applicant from using the building described as the Service Hall as a funeral business or to store bodies or prepare them for burial.
In fact both Mr Sinclair and Mr Allison agreed that if the Court determines that the development is permissible conditions of consent it was necessary that the revised POM be amended so that it: 1. clearly excludes any shrouding, viewing and storage of bodies, the preparation washing of bodies, "open" meetings; 2. specifies how long the body may be held at the Service Hall; 3. amends the definition of "Funeral and Memorial Services" so that a funeral service is immediately before burial and a memorial service is after a burial; 4. excludes the use of the Service Centre as a place for 'private contemplation' without restriction; and 5. clarifies how the wake room is to be used, (although Mr Allison did not agree with the definition proposed by Mr Sinclair) (Exhibit 10,p.8).
That said, the Council submits that these amendments to the POM go directly to the question of permissibility, and thereby cannot be resolved by conditions of consent. Rather, the Court must be required to determine the permissibility of all aspects of the development at the time at which consent is granted. In short, if the development is prohibited, it cannot be made permissible by imposition of a condition anticipatory of what must occur to overcome the prohibition: Olsson v Goulburn Mulwaree Council (2010) 176L GRA 71 at 26 per Craig J.

Applicant's submissions

The Applicant's submits that the Council's assertions about the intended use of the development are not supported by the evidence and assumes a purpose contrary to the stated purpose. It cautions the Court against assuming that a development will not be carried out in accordance with the law unless it can be demonstrated that the development is sham and a sham has not been asserted in this case. The mere fact a room is perfectly suited to the stated use and also is suitable to another use for which development consent is not sought is irrelevant to the determination of the relevant characterisation as the land is not being put to that physical end and therefore plays no part in serving the ultimate purpose (AWS at [15]). Moreover, to the extent that the Court remains concerned that there remains uncertainty as to the proposed use the Applicant submits that the conditions expressly excluding the preparation of deceased persons; storage of deceased persons and carrying out religious or other services other than those connected with the memorialisation of a person buried immediately thereafter at the adjacent burial area may be imposed and are entirely consistent with the intended use of the land.
According to the Applicant the "wake room" or "family room" is intended to be used by members of the family during the funeral for obtaining privacy and reflection (AWS at [10]). The term, it is submitted, has been coined not to permit other uses but to distinguish it from the area where the actual service will be held. It is further submitted that it is not intended that the body of the deceased at any time will be treated (wrapped, washed or otherwise prepared for burial) in this room or at the premises at all. Rather, this will be done at appropriately licensed facilities off site (as is usual in most faiths - the body is prepared off site and delivered to the site for service and burial - or in some cases moved again for burial after any religious service).
The Applicant contends on the evidence that the wake room has no facilities that would lend itself to funeral home or mortuary uses - for example it has no refrigeration and no plumbing or water supply. While it has a tiled floor, that is also true of all areas with the exception of the Service Hall and the presence of the tiled floor does not indicate use other than that proposed. That said, at the conclusion of the hearing the Applicant agreed to carpet the room to overcome any concern, if required. The wake room is intended to be used during the period allocated for the service - including in that allocated time a period that is for arrival and departure of attendees to permit the giving and receiving of condolences and the taking of light refreshments. The room will only be occupied during the period in which the booking for the funeral will take place and only by those persons attending the booked funeral.

Consideration - permissibility

I accept that the necessary categorisation of the Service Hall as an associated building for conducting memorial services marks the difference between a development that is permissible and that which is prohibited: Woollahra Municipal Council v Carr (1985) 62 LGRA 263 at 267 per Priestly JA. That said, the submission by the Applicant that the legal pre-requisite for consent namely the existence of a Service Hall for conducting memorial services can be addressed by the imposition of conditions is in my opinion impermissible. It is not in accordance with a proper interpretation and application of the statutory instrument: Olsson at [26]. The Courts have held that the permissibility of all aspects of development in contemplation must be found at the time at which the consent is granted.
Put simply, what is a fundamentally prohibited development cannot be transformed into to permissible development by the imposition of conditions to overcome any prohibited use.
There is no doubt that the GLEP renders the use of the land for the purpose of the cemetery as a permissible form of development. While discretionary considerations are engaged when determining whether a particular form of development is appropriate for a site, these matters are not relevant to the proper interpretation of the provision of the planning instrument that seeks to confine or prohibit a form of development which in other circumstances may be permissible.
In this case the words in the definition of "cemetery" are clear. The definition restricts the erection of a building to one associated with the conducting of memorial services subordinate to the primary use for the internment of deceased persons or pets or ashes. The zoning table prohibits the erection of anything other than a development for that end purpose.
I have considered what is to be carried out on the land based on the evidence before me at this time in order to ascribe a purpose to that use. In saying that I have had regard to the DA that describes the proposed use as:

Cemetery and Service Hall (DA from p3 of the Council bundle); and
Amended SEE (August 2015) as "a development application for a cemetery and associated Service Hall with access roads , car parking and toilets with shelters; further detail is set out at the Introduction and at paragraphs 4.11 and 4.12; and
The accompanying Plan of Management (August 2015) which is proposed to be amended in accordance with the joint report of experts) also identifies the uses at 3.7(e).

I have also carefully considered the expert oral and written evidence and the parties' submissions.
I agree with the Applicant that it is inappropriate to attempt to characterise the purpose by reference to the individual uses or processes that make up the proposed purpose because uses of differing natures can still serve the same purpose: Chamwell at [34]-[37]. However, based on the evidence of Dr Marranci (Exhibit 6, [3]) and Mr Allison as summarised earlier I cannot accept the applicant's submission that "…each of the features is representative of the physical action which the land is made to serve for the purpose of a cemetery" (AWS at [9]).
The defined term is quite specific in limiting the purpose of the associated building to the conduct of memorial services. While the word "Memorial" is not defined in the GLEP, if I apply the ordinary principles of statutory construction and the ordinary or usual meaning of the word (including resorting to the term as defined in the Macquarie and Shorter Oxford Dictionaries) it means a "commemorative service" or "remembrance service".
The applicant submits that the evidence before the Court supports a finding that the proposal fits within the relevant definition. That is, a building which can be used for memorial services but lawfully includes amenities and an administration area for the cemetery (i.e. toilets, office and reception). In short, a Service Hall to be used solely for the memorialisation of those buried or to be buried at the cemetery.
However, I believe that the evidence as assessed today supports a different conclusion. In that regard, I accept Mr Sinclair's evidence that there is nothing in the revised PoM which prevents the removal of the body from the body bag (Exhibit 10 p3) or specifies how the deceased's body will be stored but that it could be stored for up to 8 hours (Transcript 30/3/2017, T40.16 and T40.25-28). Nor does the PoM address the leakage of body exudate or odours if the body is stored for up to 8 hours (Transcript 30/3/2017 T40.39.50). In fact both cemetery experts accept that all of the facilities necessary to satisfy the definition of a funeral home are present in the proposal before the Court. For that reason they recommend in their joint report that the final PoM is amended to preclude such uses and to better define the use of the "wake room" (Exhibit 10). However, these matters as the Council submits go to the question of permissibility and cannot be resolved by conditions of consent. The PoM is intended to be a management tool of an otherwise permissible development. Where the development is prohibited it cannot be made permissible by the imposition of a condition anticipatory of what must occur to overcome the prohibition: Olsson at [26].
I am required to determine the permissibility of all aspects of the development now - at the time when consent is to be given. As it presently stands, the evidence supports a finding that the Service Hall is large enough to be used for another purpose - such as to engage the definition of "place of public worship". It includes the necessary facilities - extending to a Minister's office and can accommodate up to 330 people. The PoM before the Court fails to limit the use of the Service Hall to funeral services and memorial services, and proposes hours of operation which are uncertain. Furthermore, it fails to specify when a body will arrive on the Site, and fails to specify how the placement of the deceased into the grave will occur: (Transcript 30/3/17, T45.48 -T46.2) and (Exhibit 10, p5, 6 and 7). The proposed wake room, based on the expert's evidence, as I said, is capable of being used as a funeral home or mortuary. Or at the very least available for the short term storage and viewing of bodies unless the PoM specifically precludes these uses as a condition of consent. The revised PoM also provides a mechanism by which the PoM can be altered unilaterally by the applicant. Mr Sinclair proposes that the PoM be amended so as to only allow changes which are not inconsistent with the development consent and applicable law governing the operation of cemeteries (Transcript30/3/17 T45.35)

Ecology

Following the conclusion of the hearing, the parties by email referred the Court to the Biodiversity Conservation Act 2016 which repeals s5A and s78(8) of the EPA Act and cl 28 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 - entitled "Former planning provision continue to apply to pending or interim planning applications."
Relevantly, cl27 (1) of the Savings and Transitional Regulation defines a pending or interim application at sub paragraph (a) to include : "an application for the planning approval (or for the modification of a planning approval) made before the commandment of the new Act but not finally determined immediately before that commencement …"
As such, the Council considers that its contentions and submissions raised in relation to ecology (contentions 18 -21) of Exhibit 1 and the final submissions continue to reflect the correct legal position in respect of this development application. The Applicant did not dispute this.
However, having reached the conclusion that the development is not permissible I do not need to deal with the ecological issues or any other matter.

Orders

Accordingly, the Court orders: 1. The appeal is dismissed. 2. The Exhibits are to be returned.

Susan Dixon Senior Commissioner of the Land & Environment Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2018

(2013) 201 LGERA 116

(2007) 151 LGERA 400

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Cases Cited (5)

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