Itaoui v Liverpool City Council

The Issues 13The main issue in this appeal is whether the site is suitable for the proposed development. The Council has framed the contentions as follows: 1. Does the development comply with the objectives and requirements for the minimum lot size for cemeteries in Part 5 of the Liverpool Development Control Plan 2008 (the DCP); and 2. Does the development comply with the objectives of the RUI- Primary Production zone and is it compatible with the rural character of the surrounding area? 14The background facts and statutory controls are set out in the Council's amended statement of facts and contentions filed on 5 September 2012 and the applicant's statement in reply. In order to understand the reasons for my decision it is necessary to appreciate the following detail.

The site - character of the surrounding area 15The site is located on the northern side of Greendale Road between Tyson Road and Dwyer Road, Bringelly. It is rectangular in shape and has a total area of approximately 10.16 ha. It has a street frontage to Greendale Road of approximately 230 m and depth of approximately 530 m. The width of the existing sealed pavement carriageway along the frontage of the site is 6.2m. 16Erected on the site are a two-storey brick residential dwelling, disused concrete pool, and a number of sheds and dams. These structures are located on the central ridge of the site with a number of gullies leading off to the east and northwest. It is lightly vegetated and a riparian corridor traverses the southwestern corner of the site with two smaller gully corridors intersecting the eastern boundary. It contains Cumberland Plain Woodland with the densest areas of vegetation located within the south- western portion of the site around the riparian corridor that contains an ephemeral stream. 17The site is located in a rural/residential area on the southern edge of the Liverpool Local Government Area. To the north and east lie larger rural allotments (predominantly 10 ha). Immediately to the west is an area of residential zoned land containing smaller allotments of generally around 2 ha. Reticulated sewerage and town water services are not available to the site. The primary route for vehicles to access the area is Greendale Road with a secondary access via Dwyer Road to the west of the site. In close proximity to the site, at 30 Carr Road, is a Vietnamese Catholic Community multi purpose centre. It is a large site that holds retreats, conferences, meetings and religious ceremonies. According to the evidence, it attracts up to 2000 people to its activities. Also in Carr Road, and near the site, is a boarding kennel for animals. 18While the area is primarily rural in character it was evident at the view that the vast majority of properties in the immediate locality are not actively used for agricultural purposes. In my assessment of the evidence the rural character of the locality is largely attributed to the openness as well as the area's scenic qualities that are characterized by the retention of large pockets of vegetation, generous setbacks and undulating topography. 19This is consistent with the town planning evidence that this is not prime rural land. The planners agree in their joint report that the site is designated as agricultural land class 3. The applicant's rural town planner, Mr Sinclair, is of the opinion that development will not result in the alienation of resource land or cause the site to be fragmented, per se, as it is already subdivided. 20The Council has received a number of applications for cemeteries within Liverpool Local Government Area. The sites of those applications are identified on the plan (exhibit 7). At the date of the hearing I was told that the JRPP had approved the development of a crematorium at 992 Greendale Road with a capacity for 10,000 receptacles and issued deferred commencement consent for a cemetery at 321 Greendale Road. The parties' town planning experts (Mr. Sheils for the Council and as I noted above Mr Sinclair for the applicant) agreed during their oral evidence that the approved cemeteries are not within the immediate locality of this site. 21Having regard to that evidence it follows that if this natural burial cemetery is approved it will be the first within the immediate locality. The assessment of any subsequent application for a cemetery within the immediate locality under the DCP would to have regard to this approval in order to avoid a proliferation of cemeteries. Of itself, being the first, it is not proliferating.

Does the development comply with the objectives and requirements for the minimum lot size in cl 9.13 in Part 5 of the Liverpool Development Control Plan 2008 (the DCP)? 22In addressing the first contention it is useful to set out cl9.13 - Cemeteries, Crematoriums and Funeral Chapels of Part 5 of the DCP. It states: Background Cemeteries, Crematoriums and Funeral Chapels are sensitive land uses which can potentially have an impact on the amenity of the surrounding area. In particular, there may be visual and traffic impacts. Objectives a) To ensure that the operation of cemeteries, crematoria and funeral chapels does not have an adverse impact on adjoining land uses and the surrounding area. b) To restrict these uses to appropriate locations. c) To ensure uses locate on appropriate sites. d) To ensure that uses locate on roads with the capacity to accommodate probable traffic generation, and e) To provide for appropriate development controls relating to the ongoing operation of such uses. Controls The following controls are in addition to those in Sections 1-8 of this Part. Site Suitability

1. Cemeteries and crematoria must locate on a site with a minimum of 15 ha available for burial plots and memorial walls. Landscaped areas, setbacks, parking, driveways and turning areas, internal congregational areas, places of public worship, and areas where ground water is within 3 m of the surface will not be counted toward the minimum 15 ha site area. Note: This minimum Lot Size requirement is to ensure financial and operational sustainability of the cemetery and to limit the proliferation of cemeteries and crematoriums on rural land.
2. Cemeteries, Crematoriums and Funeral chapels shall not locate on a road which has a seal width of less than 6 m.
3. Burial plots must not be located in areas where the water table is within 3 m of the ground surface. If the water table is between 3 m and 5 m of the ground surface, deep rooted planting will be required in affected areas.
4. Cemeteries should not be located on flood prone land. Setbacks
5. Buildings and burial plots are to be sited at least 20 m from a public street and at least 15 m from any side or rear boundary. Landscaping and Fencing
6. A berm is to be provided around the property and must be 1 m high and 3 m wide. Landscaping is to be provided over the top of the berm.
7. A landscaped buffer zone at least 10 m wide must be provided to the side and rear boundaries of the site. The buffer zone shall not be used for parking areas or the like.
8. Any proposed cemetery must have an adequate water supply to ensure the ongoing maintenance of landscaping and to assist in the operation of the site. Car Parking and Access
9. A traffic study is to be included with any development application for a cemetery, crematoria or funeral chapel. This study should determine whether or not a turning lane or slop lane is required to enter the site. Operation
10. A Plan of Management must be submitted with a Development Application and must include details of the operation of the use.
11. In the case of perpetual burials, the Plan of Management needs to outline how the perpetual care would occur. 23The applicant seeks approval to develop a natural cemetery on a 10.16 ha site. An area of about 7.29 ha of the site (or 48.6%) is to be available for actual burials. The site has never complied with the minimum area required for burial plots in cl9.13 of the DCP. At the time of lodgment of this application cl 9.13 of the DCP required a minimum lot size of 10 ha however, that clause was amended to 15 ha after lodgment of this proposal. 24It is the Council's case that my "operative discretion" in this appeal is constrained by cl 9.13 of the DCP. In fact it contends that I must refuse this application because the site does not achieve the minimum lot size prescribed by the DCP. This submission is based on the principles in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and the Council's evidence that cl 9.13 of the DCP was adopted after extensive community consultation - including discussions with members of the cemetery industry such as Mr Filocamo from the Department of Primary Industries. The Council submits that the DCP must be the central focus in my assessment of this application and that cl 9.13 must be given significant weight under s 79C of the Act. 25The applicant rejects the claim that the DCP amendment to cl 9.13 followed extensive public consultation. It submits that the community consultation process was limited. The applicant, as the most affected landowner was not consulted about the amendment. It also submits that there is no industry standard for the minimum lot size for cemeteries and the standard adopted is unsupportable. For those reasons, it submits I should give little weight to the minimum lot size provision in the DCP in my assessment of this application under s 79C of the Act. 26In the alternative, the applicant submits that the development achieves the underlying objectives of cl 9.13 of the DCP despite its numerical non-compliance with the provision. 27I will address the weight to be given to the DCP generally and the minimum lot size provision and then deal with the alternative submission.

Finding - what is the weight to be given to the DCP generally and the minimum lot size provision in my assessment of this application under s79C of the Act. 28I agree with the Council for the reasons stated above that the DCP should be a central focus of my assessment of this application under s 79C of the Act. Furthermore, I agree that cl 9 13 of the DCP, which specifically deals with cemeteries in the Liverpool Local Government area, should be given significant weight in that assessment process because it has been the subject of community consultation and reflects the communities' expectations. This approach is consistent with the Court's principles in Stockland at [87]. There is no evidence to support the applicant's submission that the amendment to cl 9.13 of the DCP was made without public consultation or to defeat this application: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, per Mason P. 29Having said that however, there is precedent in this Local Government area for the approval of a cemetery that does not achieve the minimum lot size prescribed by the DCP provision where the objectives of the clause are achieved. 30On 27 August 2012, the Sydney West Joint Regional Panel approved a cemetery and associated works at 321 Greendale Rd, which did not comply with the minium area for burial. According to the evidence, the JRPP decided to approve the development subject to deferred commencement conditions because it assessed (at paragraph 7 of p 4 of the planning report exhibit 11) that: "...departure from the provisions of the recently adopted Liverpool Development Control Plan 2008 that requires cemeteries to be located on a site with a minimum of 15 ha is considered acceptable as strict compliance could be achieved but would increase the impact of the development on the rural landscape character of the site and the locality, and reduce the separation of the proposed burial sites from adjoining land". In that case, the JRPP were dealing with a traditional cemetery (which is more intrusive in the rural landscape) but when focusing on the DCP provisions (in particular the objectives of the clause to reduce the impact of the development on the rural landscape) provided a proposal achieves the objective of the clause numerical compliance can be academic.

Does this development achieve the objectives of cl9.13 of the DCP despite its numerical non compliance with the minimum lot size requirement under the DCP? 31Mr Sinclair believes that the proposed use, subject to the plan of management and the applicant's draft conditions (exhibit H) achieves the objectives (a) to (e) in cl9.13 of the DCP. In short he is of the opinion that the site is suitable for the proposed use despite it being numerically non compliant with the minimum lot size. 32In his assessment departure from the 15 ha minimum lot size is acceptable because strict compliance in this case is not necessary to achieve the objectives of the clause. The development, in his assessment against the objectives of the clause will not have adverse amenity impacts (including visual or traffic impacts) on adjoining land uses and the surrounding area. The land is not prime rural land and the proposed use is compatible with the uses and rural character of the locality. His evidence is that the natural cemetery will look like natural bush land /rural land from most views. While he concedes that the car park setback from the road will be visible when occupied in his assessment it will not adversely impact on the uses of adjoining land. Similarly, the fact that the earthy toned crematorium walls and other structures will be visible through landscaping on berms from some adjoining sites does not mean that the operation of this cemetery will have adverse impacts for those sites. 33The development subject to the conditions will comply with the site suitability criteria in cl 9.13 in all regards accept its size. 34Mr Sheils disagrees with Mr Sinclairs' evidence about the site's suitability for the development. While he concedes that Mr Sinclair has more rural planning experience, his evidence is that the existing rural character of the area will change to be more commercial with the introduction of this cemetery use. Mr Sheils believes in the case of cemeteries the test for site suitability is a minimum burial allotment size (p7 exhibit 11) The intention of the minimum burial allotment size is to limit the proliferation of cemeteries and crematoriums on rural land. While his evidence is that the development does not need to satisfy all 5 objectives it does need to be assessed against them. In his opinion it is questionable whether the proposal reasonably satisfies these objectives. He concludes in the joint report that it does not (p7 exhibit 11).

Finding 35I accept Mr Sinclair's assessment that the development satisfies the objectives of cl 9.13 of the DCP. The Court's view of the site and surrounding area confirms his evidence. In my assessment an approval of this development subject to the draft conditions (exhibit H) and the plan of management will not cause adverse impacts on adjoining land uses and the surrounding area. Objectives (a), (b) and (c) in cl 9.13 of the DCP are satisfied on the evidence. This development is significantly different from the traditional cemeteries that exist in the Sydney area, which are dominated by headstones and have limited or no vegetation where the minimum lot size might be necessary to ensure the satisfaction of the objectives. However, in this case the test for site suitability is not as Mr Sheils believes numerical compliance with the burial allotment size because the objectives are satisfied despite numerical non-compliance. 36I agree with the evidence that the site and surrounding land is native woodland comprising mature trees of up to 10 m and more with buildings and other structures located in a nonuniform setting. The landscape is very much characterized by grasses, shrubs and trees and barns and buildings. The cemetery use will not have an adverse impact on the adjoining uses and the surrounding area. The proposal has limited tree removal and the berms and buffer landscaping around the boundaries of the site. While I concede it will take time for the vegetation to grow to maturity, in time, the regenerated Cumberland woodland and new plantings will be an effective and attractive screen to columbarium walls and other structures, particularly when viewed from the rear of the adjoining property at 30 Finlay Road. 37There is no evidence before me to suggest that Greendale Road does not have the capacity to deal with the traffic generated by this proposal. The traffic evidence supports a finding that the proposal can be conducted in a manner that will not unreasonably impact on existing road safety along Greendale Road or substantially impact on the performance of function of Greendale Road. I accept Mr Sheils' expert traffic assessment that a right turn lane in and a left turn exit lane from the site and some widening of Greendale Road in front of the site is appropriate. Objective (d) of cl9.13 is achieved on the evidence. Further traffic measures can be dealt with at the Sage 2-development assessment process. 38I do not accept Mr Sheils' assessment that the existing rural character of the area will change to be more commercial with the introduction of this cemetery use. The applicant has agreed to accept a condition which limits the number of services to times outside peak times to ensure parking and traffic movements to and from the site are manageable. The introduction of a car park for up to 109 cars at the entry of the site (plus overflow car parking for 20 spaces) will not change the character of the area particularly when one appreciates the surrounding uses such as the approved Vietnamese Catholic centre at 30 Carr Road which attracts up to 2000 people for retreats, conferences meetings and religious ceremonies and offers a capacity to park 1040 vehicles (p 2 exhibit 11). 39The applicant accepts the Council's draft conditions that require arrangements for perpetual site maintenance via deed. Therefore, this development raises no issue in respect of its financial and operational sustainability as a cemetery and in my assessment objective (e) is satisfied and the non-compliance with the minimum site area does not preclude this development's financial and operational sustainability. 40Furthermore. I am satisfied on the evidence that an approval of this unique application for a very different style of natural burial cemetery cannot of itself result in the proliferation of cemeteries on smaller lots because it is the first cemetery in the locality. Each subsequent application must be assessed on its merits under s 79C of the Act at the time of determination. An approval of this natural burial cemetery on this site cannot be a precedent for any other cemetery in the immediate locality of the site. 41The proposed use is permissible within the RU1 Primary Production zone under the LEP and approval of this application will add to the supply of cemetery capacity within the region. It will not result in an unacceptable loss of agricultural production given its classification, size and topography. Nor is there any evidence that the development will cause negative impacts on ground and surface water conditions in the locality. The conditions adequately address water runoff issues raised by the objectors. 42For the above reasons, I am satisfied that the site is suitable for the proposed use because it achieves the stated objectives in cl9.13 of the DCP despite its numerical non compliance with the minimum lot size.

Does the development compatible with the objectives of the RUI- Primary Production zone and the rural character of the surrounding area under the LEP? 43The Council submits that the development should be refused because the proposal does not comply with the objectives of the RUI -Primary Production zone and is incompatible with the rural character of the surrounding area. 44The experts agree in the joint report (exhibit 3) that the objectives of the zone are to establish the character of the zone. They also agree that while I must have regard to the zone objectives under cl12.3 of the LEP it is not necessary that the proposal satisfy every objective. 45In this case the planner believe the following zone objectives are relevant:

• To minimize the fragmentation an alienation of resource land.
• To minimize conflict between land uses within this zone and adjoining zones".
• To preserve bush land, wildlife corridors and natural habitat. 46They disagree about the compatibility of the use with the surrounding area for the reasons articulated in the joint report of the planners. 47Mr Sheils at p5 (exhibit 3) assesses that the proposal will not satisfy any of above the zone objectives and that the site will be alienated from any other use in the foreseeable future. He is of the opinion that the development is not compatible with the amenity of the area because of its traffic impacts and visual intrusion in the rural landscape.

Finding -zone objectives -compatibility with the character of the area 48I find Mr Sheil's evidence difficult to reconcile with the proposed design and my view of the site and surrounding area. The design is reliant on a bush land setting and in fact preserves bush land, wildlife corridors and natural habitat. It fact the proposal is to regenerate and preserve the existing Cumberland woodland on the site and plant further native species to further buffer the built form from the adjoining uses and surrounding area. 49The evidence supports a finding that the development's design and operational plan will minimize conflict between land uses within the zone and land uses within adjoining zones. I accept Mr Sinclair assessment, as a more experienced rural planner than Mr Shiels, that the site is not capable of being called agricultural or resource land as anticipated by the zone objectives because it has very limited opportunity for productive rural land due to its size, the existing vegetation and its steep topography. Having regard to that evidence it follows that its use as a cemetery is not incompatible with the zone objectives because it will not result in an unacceptable loss of agricultural productive land or cause the alienation and/or fragmentation of agricultural or resource land. 50The land, despite its zoning, is not prime rural land. The topography of the site and the sensitive Cumberland woodland vegetation constrain its rural/agricultural use. Based on the assessment of Mr Sinclair an approval of this development will not result in the alienation and fragmentation of agriculture and resource lands. 51I am satisfied that the unique and sensitive design of this proposal is compatible with the character surrounding area amenity of the area thus reducing land use conflict. Much of the natural vegetation will be retained and enhanced by extra vegetative buffers along the site boundaries. The walls will be of a colour to meld into the landscape and in time the proposed vegetation will soften the built form. It will be visible but so too is the existing development along the ridge of this site. I agree with Mr Sinclair that this development is compatible with the rural character of the surrounding area and after a consideration of the zone objectives and the evidence taken at the view it does achieve the objectives identified above. 52This is an approval for the use of the site as a cemetery in accordance with the concept plan and stage 1 works only. The traffic safety concerns raised by Mr Sheils are in my assessment addressed by the draft conditions and the plan of management. Further measures will be addressed in detail when the stage 2-development application is lodged.

Objectors' evidence 53The Court has carefully considered the written and oral evidence of the objectors. It has inspected the most affected properties and analysed the expert evidence about visual impact and traffic impacts. 54I am satisfied that the plan of management and the conditions proposed by the Council satisfactorily address the amenity issues raised by the objectors. This development will regenerate the existing native bush land and provide extensive native landscaping. The colour scheme will integrate into that landscape. The residents' concerns that the built form and use of this site as a natural burial cemetery will adversely impact on their amenity and use of adjoining land is not made out on the evidence before me. 55The use of this site for a cemetery is permissible in the zoning and this development is consistent with the zone objectives. It is not the intention of the objectives of the zone to retain every lot in the RUI zone for agricultural or primary production uses; however those non-agricultural uses must be compatible. I am satisfied on the evidence that this natural burial cemetery is compatible with the character of the surrounding area and when the landscaping is mature the development will integrate better than a more traditional cemetery. 56The residents' concern about ground water contamination and runoff are addressed by the Council's proposed conditions of consent. The traffic concerns raised are also addressed by conditions that include turning lanes and the widening of Greendale Rd in certain areas to avoid safety concerns generated by this development. The objectors' concerns about the financial viability of the use of the site as a cemetery and a proliferation of cemeteries in the immediate locality have been addressed in this judgment. 57In my assessment of the evidence the deficiencies of the application identified by the JRPP are addressed by the amended plans and the draft conditions of consent in exhibit H.

Conclusion 58After a consideration of all of the evidence and an assessment of the merits of the development under s 79C of the Act I am satisfied about the suitability of the site for the development. I also believe that the draft conditions proposed by the applicant in exhibit H as amended by this judgment satisfactorily address the likely impacts of that development. For the reasons stated I propose to uphold the appeal and grant development consent to this application subject to receipt of the draft conditions.

Orders (1)I direct the parties to prepare agreed conditions of consent, which reflect my reasons for judgment and forward them to the Court within 14 days. In the event that there is no agreement then the parties are to approach the Registrar to have the matter listed before me to hear submissions in respect of the conditions in dispute. (2)Upon receipt of the agreed conditions I will make final orders. Susan Dixon Commissioner of the Court

Amendments 23 January 2013 - typographical error "their" changed to "there" Amended paragraphs: Order (1) 07 February 2013 - typographical error"not" inserted into final sentence Amended paragraphs: 54 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: 07 February 2013