Cullen v Blacktown City Council & Ors

Development Application :- Funeral parlour in commercial zone KEY ISSUES: Psychological impact on residents Restrictions on operation

Environmental Planning and Assessment Act 1979 Local Government Act 1993 LEGISLATION CITED: Public Health (Disposal of Bodies) Regulation 2002 Blacktown Local Environmental Plan 1988

Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117; CASES CITED: H N Olson Pty Limited v Rockdale City Council (2005) NSWLEC 361

DATES OF HEARING: 17 May and 23 August 2005 EX TEMPORE JUDGMENT DATE : 08/23/2005

APPLICANT Mr B Hones, solicitor Hones Lawyers

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr S Simington, solicitor Lindsay Taylor Lawyers

SECOND & THIRD RESPONDENTS Mr C Maley, solicitor Maclarens Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10115 of 2005 Shannon Cullen v Blacktown City Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT 1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Blacktown City Council (the council) of an application to establish a funeral parlour at Lot 18 DP 30448 at Orcam Lane, Rooty Hill (the site). The application was subsequently refused by resolution of the council on 9 February 2005.

2 When the matter first came before me, it came, in effect, as a proposal to which the council no longer raised objections, the council having further considered the matter. By way of preliminary comment, I would make two observations.

3 The first is, the applicant is entitled, as a long settled matter of law, that if the applicant were to be given a consent, subject to conditions, it would be presumed that he would observe those conditions. 4 Therefore, in these proceedings, to the extent that the conditions are in contention, it is not with respect to their observation but as to, firstly, their reasonableness and, secondly, as to whether in fact it is possible for them to be observed. 5 The second observation I make is with respect to the state of the plans. A number of matters arose during the course of the proceedings, evidence having been given by Mr Nye, the secretary of the registered industrial organisation representing employees in the industry, drawing my attention to the provision of a number of elements of the Public Health (Disposal of Bodies) Regulation 2002, that the plans in fact did not conform with those regulations.

6 I am satisfied that that would have required significant alteration to the internal layout of the building in order to ensure that compliance was achieved. However, I am also satisfied, as a matter of general practicality, that such amendment could be achieved (although with considerable internal realignment of the design of the premises) and that, as a consequence of that, refusal would not be warranted on the basis of those defects in the plans.

7 When the matter first came before me, on-site, I heard informally the evidence of a number of the residents in the vicinity and the proprietors of businesses in the shopping complex known as American Mall (within which the site proposed to be transformed into a funeral parlour are located).

8 As a result of that inspection and arising from it, I directed that the Court appointed town planning expert, Mr Winicott, furnish a supplementary report concerning a parcel of land (zoned residential), which is immediately across Orcam Road from the site and from American Mall shopping centre, as the proposal's possible impact on that had not been considered in light of the planning principle enunciated by Bly C in Seaside Property Developments Pty Limited v Wyong Shire Council [2004] NSWLEC 117 at para 25 concerning development at zone boundaries.

9 As a consequence of that direction, Mr Winicott subsequently further considered the proposal and submitted a supplementary report.

10 It also became obvious to me during the course of the further procedural arrangements for the matter's determination that it was appropriate for Mr Simington, solicitor appearing for the council, to discuss with two of the objectors, Mrs Boros and Mrs Xeureb, whether or not they wished to consider seeking to be joined as parties to the proceedings.

11 He accepted the appropriateness of him having such discussion with them (but not in the context of either he or I advocating that that was a desirable course that they pursue but merely as to whether or not they wished to consider that position).

12 Mr Hones, solicitor for the applicant, did not raise any objection to that path being followed.

13 As a consequence, on 20 July, without objection and by leave from me, Mrs Boros and Mrs Xeureb were joined as the third and second respondents respectively and a number of further directions were given to enable the filing of additional evidence relating to their concerns.

14 I have had the advantage of two Court appointed experts giving evidence in these proceedings.

15 The first is Mr George Porter who has given written evidence concerning social planning issues. He was not required for subsequent detailed oral evidence of any significant dimension. He having come to the conclusion that, on broad social planning bases, there ought be no objection to the proposal. 16 Mr Winicott gave evidence concerning the planning issues. He came to a view, in his initial report, that there were no planning considerations warranting refusal.

17 Mr Winicott's supplementary report includes a document prepared by Mr Apps, a senior statutory planner employed by the council, indicating that that land is dedicated to the council for future vehicle parking purposes but is presently zoned as operational land rather than community land under the Local Government Act 1993. As I understand the position, that gives the council a great deal of further freedom to dispose of or to develop the land than would be case if it were owned as community land whereby an extensive statutory process is required before development or disposal for purposes other than community purposes. 18 After his consideration of the allotment owned by the council to the rear of the premises, Mr Winicott concluded, in his supplementary statement, that there was nothing in the future use of that allotment which would act as a prohibition in light of the planning principle to which I have earlier adverted.

19 I have considered the matters that are put by Mr Winicott in his report and the submissions made by Mr Maley, solicitor on behalf of the second and third respondents, concerning the compliance or otherwise with, firstly, the broad objectives of the Blacktown Local Environmental Plan 1988, the relevant ones of which are contained in cl 22(c) and (d) together with the relevant objective of the 3(a) General Business Zone, which is contained in zone objective (d) of the zone objectives.

20 I am satisfied, overall, that the conclusions which Mr Winicott reaches are the correct ones and that there is no inconsistency with the zone or general objectives of the LEP that would prevent the application being approved.

21 There remained, in effect, four substantive issues contended before me as warranting refusal - these being put on behalf of Mr Maley's clients. o First, that there would be an unacceptable psychological impact on the Xeureb family who live at 2 Leighton Street, Rooty Hill at a distance of some 18 m to 20 m from the nearest bedroom window to the rear access point to the site; o Second, that the proposed conditions of operation concerning the receipt of bodies after hours were such that the conditions of operation confining the use of the premises to the hours specified in the conditions of consent, being essentially daylight hours - Monday to Friday - were not capable of being complied with; o Third, that the requirement that viewing of deceased persons by grieving relatives or mourners being limited to parties of ten was not capable of compliance and that the arrangements for such viewing were themselves inappropriate or unworkable; and o Fourth, that the nature of public interaction with the premises both through accessing through the rear and the operation of the front viewing area were also incapable of being observed.

22 I turn first to the question of the psychological impact on Mr and Mrs Xeureb and their children. I have had the assistance today of concurrent expert evidence from Ms Simpson, for the Xeureb family and Dr Roldan on behalf of the applicant.

23 I do not need to deal extensively with their conclusions, they having conducted a conference in reaching substantial agreement on the matters that are in contention. As I understand their evidence, the apprehension disorder that affects members of the Xeureb family at the present time (to varying degrees) is one which is capable of arising from an extensive range of stimuli, not merely confined to those in the present application, and of effecting some 5% of the community.

24 It is, as I also understand their evidence, the position that, if the cause of that apprehension is to depart, then the symptoms themselves will, within a comparatively short period of time, also disappear.

25 It is put on behalf of the Xeureb family the fact that they have been long-term residents in their home and the cause of their apprehension is coming to them rather than the other way around ought cause me to reject the application.

26 It is my view that the necessary inference that follows from the evidence from the psychologists is that there must be a falling within that five per cent of susceptibility or vulnerability for those feelings of apprehension to be triggered.

27 I am satisfied that that apprehension is held by them and genuinely held by them. The question I need to attend to is whether or not it is reasonable to impose that apprehension upon the totality of the planning system and assume that it ought be regarded as being held on behalf of the whole community.

28 Having stated the matter in that fashion it would seem to me that one is inevitably led to the conclusion - consistent with the conclusion on those matters of principle reached by Nott C in H N Olson Pty Limited v Rockdale City Council (2005) NSWLEC 361 - that such apprehensions should not lead to the refusal of an application. 29 Nonetheless, the feelings are quite obviously genuine and legitimately felt and there may be real some impact on the family. To that extent, they impacts which I should take into account but are ones which would not, in themselves, warrant refusal and, to the extent that they might make a contribution to refusal, that contribution would only be most minor in any event.

30 The second matter relates to the receipt of bodies after hours. 31 Mr Cullen, the applicant, gave evidence in these proceedings and included with a written statement of evidence a copy of a letter from a company known as Statewide Mortuary Transfers, they being an enterprise that collect and hold bodies to be transferred on to businesses such as that proposed by Mr Cullen. 32 That evidence establishes that, if there were a need to collect a cadaver on behalf of the applicant outside the hours when he would be permitted to receive it at the site, Statewide Mortuary Transfers would permit him to collect the body from the place of death at or shortly after the time of death; transfer the body to that company's premises; and then subsequently recollect the body at a time when it could be transferred to the site within the permitted operating hours.

33 Mr Nye, who gave evidence in these proceedings on behalf of the second and third respondents, indicated that he was not aware of any regulatory impediment to such an arrangement.

34 Whilst there were suggestions made on behalf of the second and third respondents that I ought not regard that arrangement as sufficiently certain, I must, in my view, not merely have regard to the letter from Statewide Mortuary Transfers but also to the presumption that the applicant, if granted a consent, would abide by the conditions of consent. I am therefore satisfied that the collection of cadavers after hours does not give rise to any reason to refuse the application.

35 In my opinion, the significant difficulty that the applicant faces and, in the final analysis, the one upon which the applicant fails, relates to the operational limitation on the premises contained in the council's proposed conditions 60 and 61 relating to the dealing with viewing parties and the ability to limit that number of persons to ten. 36 I understood Mr Cullen's evidence to be that he accepted that it is reasonable and necessary that such a condition be imposed on his business. Even if I did not accurately reflect his position, given the size and proposed layout of the operation and its location in a small neighbourhood shopping centre, such a condition would be required in any event.

37 It was Mr Nye's evidence that, in a number of ethnic community groups, very large viewing parties might be expected.

38 It was Mr Cullen's evidence that he would discourage persons from such communities from seeking to avail themselves of his services and, in effect, that he would be seeking to cater solely to the Anglo-Saxon community.

39 I accept that evidence and I accept that he would conduct his business on that basis if he were permitted to do so at the site. As a consequence, I do not consider this application and its fatal failure, in my view, on the basis of the assumption that there might be groups of two or three hundred people seeking to attend for a viewing.

40 The problem that I consider exists is that, as a matter of practicality (no matter how well Mr Cullen explained the arrangements to the parties arranging the funeral [and I accept unreservedly that he would do his best to do so both in any discussions with them and in any written material provided to them] that they should limit their viewing parties to ten), if 11, 12, 13, 14 or some other number larger than the permitted viewing party turned up, it would not be physically possible (short of unseemly intervention), for him to be able effectively to say to those who were gathered, as he said he would say, words to the effect: Select ten of your number who are permitted to view. The remainder of you will either have to sit in your cars at the rear or go somewhere else and get a bite to eat in the shopping centre. 41 Although not quoting Mr Cullen verbatim, he gave evidence that he would say words to that effect. 42 I do not believe that that would be capable of being effective and merely to state the proposition in the form that I have demonstrates the self-evident weakness of that position, in my view.

43 Even if a group in excess of ten arrived and such quarantining were able to be undertaken there is no doubt that those who were turned away would congregate somewhere and might well have a genuine sense of grievance as well as grief and it is unlikely, in my view, that they would simply sit quietly in their separate vehicles in the parking area. 44 I make no assumptions as to how they might behave, simply that the nature of the behaviour pattern postulated by Mr Cullen is, in my view, unreasonable to assume and that it is also reasonable to assume that there is a reasonable likelihood of some adverse impact on the shopping centre under such circumstances.

45 I am therefore satisfied that this condition is not capable of observation. 46 I have also considered whether the limitation to ten in a viewing party would in fact be reasonable to be imposed because, if the limitation were not reasonable and some modestly larger number might have been imposed by way of variation which larger viewing party was capable of being accommodated in the premises, such a defect might therefore not necessarily be fatal to the application.

47 I have concluded that it would not be reasonable under the circumstances to permit viewing by parties greater than ten. I have reached that conclusion for two reasons.

48 The first is that the parking on the premises at the rear is comparatively limited and access from that area will be required to be through a corridor (to be created in part by curtains and in part by proposed structural walls) through the "behind the scenes" operational areas of the premises.

49 The operation, as Mr Cullen has described it, is intended to be a boutique style of funeral parlour with a small number of staff.

50 I am satisfied that it would be difficult, given the confined nature of the premises and the access from the rear, for there to be practical control of any significant number of people moving in a party of mourners through to the viewing area going past the body preparation and body storage areas.

51 Second, the viewing area itself, in my view, is of extremely limited compass. It is in a space in effective dimensions of 4.7 m approximately by some 6.7 m in width which will incorporate, of necessity, a reception desk and its appropriate ancillary equipment together with the doorway vestibule and a privacy screen erected to screen the activities inside from casual observation from the street.

52 The area proposed for the display of the body would itself be comparatively confined. I am satisfied that the management of grieving people within that space in any numbers even modestly in excess of 10 would be difficult (if not impossible) and certainly if numbers attended significantly greater than 10 would be impossible. 53 Certainly there is no plan of management in evidence before me as to how control would be effected if this occurred. I am therefore satisfied that it would not be appropriate for me to contemplate any increase in those numbers beyond ten.

54 Having reached that conclusion and having indicated that other deficiencies might otherwise have arisen in the plans, being matters that relate to the layout of the premises, would, in my view, be capable of resolution by amended plans had there not been that fundamental difficulty with the nature of the application, the orders of the Court are therefore that: 1. The appeal is dismissed. 2. Development Application 04/3501 for the establishment of a funeral parlour at Lot 18 DP 30448 Orcam Lane, Rooty Hill, is determined by the refusal of development consent. 3. The exhibits may be returned.

21/09/2005 - Correct file number - Paragraph(s) Headings

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