Jeffrey v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2020-10-08

Introduction

This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal of a development application for a development described as "change of use to funeral home and minor internal building works" at Lot 32 Deposited Plan 10105 known as 605 Canterbury Road, Belmore (site).
The principal issue was whether or not the proposed development as a form of business premises could lawfully be approved in the residential R4 zone, after the provision of additional information and some minor amendments to the plans of the proposed development rendered the development satisfactory on the merits.
For the reasons which follow, I have determined that the proposed development cannot be approved and accordingly the appeal must be dismissed.

The proposed activities

In its Statement of Facts and Contentions, the Council identified a significant lack of information about the proposed activities leading to a difficulty in the capacity to take the necessary assessment under s 4.15 of the EP&A Act. Accordingly, the Applicant ultimately provided a statement of activities for "use of the building as a funeral home". In summary the activities would be:

meeting family members (customers) by appointment only;
receiving the body of a deceased, preparing and storing the body;
making all necessary arrangements for a funeral usually at other premises;
conducting a viewing of the body and/or a service at the premises from time to time; and
carrying out embalming when required.

The proposed development is to arrange about 130 funerals per year. There would be in the order of a total of 20 services or viewings (that is, 20 in total) at the premises. No more than eight mourners would be present at a service or viewing at any one time. Embalming of a body would occur 15-20 times per year. Embalming is a process which involves the removal of bodily fluids and their replacement with certain chemical fluids and which is strictly controlled under the Local Government (General) Regulation 2005. The Public Health Regulation 2012 also has detailed provisions in Pt 8 dealing with the disposal of bodies.
The site will provide parking for staff and customers and mourners. That part of the site and premises proposed to be used for the purpose of business premises (as defined) has a gross floor area of 365.5m2.

The course of the proceedings

On 12 March 2020 the Court fixed the matter for hearing to commence on 7 October 2020. The directions made by the Court on that day included a direction that: "3. The parties shall make an online communication on or before 12 May 2020 to advise the Court of the experts to be employed and the service of expert evidence."
At the request of the parties on 14 May 2020 the date for compliance with Direction (3) was extended to 9 June 2020. In the event there was no communication from the parties in accordance with the directions of the Court or at all. Accordingly, the parties did not nominate their experts and no directions were made for the provision of expert evidence.
On 29 September 2020 the solicitor for the Applicant, with the consent of the Respondent, sought a listing for case management. The Court listed a case management conference on 30 September 2020.
It was most unsatisfactory that by a little over a week prior to the hearing no expert evidence had been filed and neither party had brought to the Court's attention the comprehensive failure to comply with the earlier direction concerning information about proposed expert evidence.
On 30 September 2020 at the case management conference I made directions to ensure that the matter would be ready for the hearing to commence on 7 October 2020. Those directions were largely complied with although the Applicant further amended her application during the course of the early part of the hearing, in addition to providing an amended objection pursuant to cl 4.6 of the Canterbury Local Environmental Plan 2012 (CLEP 2012).
The hearing commenced with an inspection of the site, the premises and the nearby development. There were no objections to the proposed development when notified by the Council and accordingly there was no lay evidence at the site inspection.
The issues which had been raised by the Council in its Statement of Facts and Contentions were:

the proposed development was prohibited;
there was insufficient information to assess the development application;
inadequate parking and unsatisfactory impact on traffic; and
unsatisfactory arrangement for movement of coffins within the premises.

Following further discussions between the parties, the provision of information and minor amendments to the plan, it was accepted that the parking and traffic arrangements were acceptable and that there were no unacceptable physical impacts of the proposed development. The only issue of substance remaining was whether or not the proposed use was permissible.

The planning regime

Clause 2.3(1) of CLEP 2012 provides that the Land Use Table identifies the development that may be carried on with or without development consent and development that is prohibited, as well as the objectives for development. Clause 2.3(2) provides that: The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
The site is zoned R4 - High Density Residential pursuant to CLEP 2012. The zone objectives are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The Land Use Table provides that certain nominated uses are permitted with consent, two nominated uses are prohibited, and any other development not specifically permitted with consent is also prohibited. That is, the structure of the Land Use Table is to nominate permissible uses and prohibit all other uses, only two of which are nominated prohibited uses.
The use for the purpose of "Business premises" is a permissible use within zone R4.
However, cl 2.3(4) of CLEP 2012 states that cl 2.3 is "subject to the other provisions of this Plan".
Clause 6.5 of CLEP 2012 deals with development for certain commercial premises in residential zones. The Land Use Table is subject to cl 6.5 because of cl 2.3(4) and is a qualification to what is first observed as the general permissibility of business premises in the R4 zone.
Clause 6.5 of CLEP 2012 provides as follows: (1) The objective of this clause is to provide for the adaptive reuse of existing buildings and sites for business premises, office premises, restaurants or cafes and shops in certain residential zones. (2) This clause applies to land in the following zones - (a) Zone R2 Low Density Residential, (b) Zone R3 Medium Density Residential, (c) Zone R4 High Density Residential. (3) Development consent must not be granted to development for the purposes of business premises, office premises, restaurants or cafes, or shops on land to which this clause applies unless - (a) the development is in, or will replace, a building that was, at the time of its erection, designed, constructed and used for the purpose of a shop (with or without a dwelling), and (b) the gross floor area of the development will not exceed 100 square metres, and (c) the consent authority has considered the following - (i) whether the development will adversely affect the amenity of the surrounding locality, (ii) the suitability of the building or land for adaptive reuse, (iii) the degree of any modification of the footprint or façade of the building.
Clause 6.5 of CLEP 2012 applies to land in all of the three residential zones. It is a precondition to the grant of development consent. There are three elements to be satisfied in cl 6.5 CLEP 2012.
First the development, relevantly here, must be in a building that was at the time of its erection designed, constructed and used for the purpose of a shop. That is effectively a locational criterion - in the residential areas business premises, office premises, restaurants or cafes, or shops can only be on land or in buildings where the building to be used or replaced was designed, constructed and used for a shop at the time of its erection. This means that commercial types of activity is only to be continued or carried out in the residential zones in a location which historically has been the subject of retail activity. There is no issue that this requirement is satisfied.
Second, the gross floor area of the development is not to exceed 100 sqm. There is an issue between the parties as to whether or not this sub-clause is a development standard and therefore subject to the provisions of cl 4.6 of CLEP 2012.
Third, cl 6.5 of CLEP 2012 itself identifies three mandatory relevant considerations - the amenity of the surrounding locality, the suitability of the building for adaptive re-use and the degree of any modification of the building. Again, satisfaction of this element is not in dispute.
There are relevant definitions in CLEP 2012: business premises means a building or place at or on which - (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital. Note - Business premises are a type of commercial premises - see the definition of that term in this Dictionary.
It is to be noted that the substance of definition is in subparagraphs (a) and (b). The definition then sets out types of uses which are to be considered as included within the definition of business premises. It is an inclusive list, rather than an exhaustive list of uses.
One of the uses which is included within the meaning of business premises is a funeral home, which itself is defined: 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. Note - Funeral homes are a type of business premises - see the definition of that term in this Dictionary.
It is accepted by the parties that the substantial part of the activities proposed to be carried out would fall within the definition of funeral home. The Council also draws attention to another definition, that of mortuary, because it argues that the activities also embrace the purpose of mortuary: mortuary means premises that are used, or intended to be used, for the receiving, preparation, embalming and storage of bodies of deceased persons pending their interment or cremation.
I deal with the characterisation issue later. It is pertinent however to observe that the more substantive issue concerned the operation of cl 6.5(3)(b) CLEP 2012.
The Applicant asserts, and the Council denies, that the provisions of cl 6.5(3)(b) of CLEP 2012 - that the gross floor area will not exceed 100 sqm - is a development standard. If the provision is not a development standard then there is no power to grant consent because the gross floor area exceeds 100 sqm.
If it is a development standard then consent cannot be granted otherwise than in accordance with cl 4.6(2) of the CLEP 2012. Clause 4.6 provides, at (3) and (4): (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
In order for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),
The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),
The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and
The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)). (Initial Action Pty Ltd v Woollahra Municipal Council (2008) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action))

The Court, in exercising the functions of the consent authority, must "in fact" be satisfied of the above matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130). The state of satisfaction that compliance is "unreasonable or unnecessary" and that there are "sufficient environmental planning grounds" to justify the contravention (the first two dot points above) must be reached only by reference to the written request (cl 4.6 objection). Whilst the evidence in the proceedings can assist in understanding the request and in considering the adequacy of the cl 4.6 objection, it cannot supplement what is in the cl 4.6 objection.
On the other hand, the state of satisfaction that the proposed development is in the public interest (the last two dot points above) can be reached by considering the evidence before the Court, without being limited to what is contained in the cl 4.6 objection.
A further precondition in cl 4.6(4), which must be satisfied before the power can be exercised to grant development consent for development that contravenes a development standard, is that the concurrence of the Secretary has been obtained. The Secretary's concurrence can be assumed as a result of written notice dated 21 February 2018 attached to the Planning Circular PS 18-003 (Initial Action at [28]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]. Although Wehbe concerned a State Environmental Planning Policy No 1 - Development Standards objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action at [16]): 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary; 3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable; 4. the development standard has been abandoned by the council; 5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

The cl 4.6 Objection

In this case, the Applicant points to path (a) from Wehbe to demonstrate that compliance is unreasonable or unnecessary because, she says, the objectives of the standard are met.
It is plain that it is important to focus upon the terms of the cl 4.6 objection itself first because in relation to demonstrating that the application of the development standard is unreasonable or unnecessary (in this case because the objectives of the standard are met) and that there are sufficient environmental planning grounds, the Court must be satisfied that the written request has adequately addressed those matters.
Whilst cl 6.5 itself has an objective - "…to provide for the adaptive reuse of existing buildings and sites for business premises, office premises, restaurants or cafes and shops in certain residential zones" - the limitation on gross floor area to 100 sqm in cl 6.5(3)(b) does not have its own stated objective.
The cl 4.6 objection does seek to identify the underlying objective of the development standard: "The assumed objective of this development standard is to limit the scale of commercial premises in certain residential zones (including zone R4) to promote higher density - mainly - residential land uses."
The objection then seeks to identify how the proposed development meets the underlying objective of the standard: "Whilst the proposed development does not strictly comply with the floor space limitation and does not constitute high density residential development, it remains consistent with the core objective of the development standard in that it proposes a permissible use that provides an essential service to the medium to high density residential uses that surround the subject site. Notwithstanding the strategic desire to promote high density residential development, a reasonable degree of flexibility is to be afforded pursuant to clause 4.6 of CLEP 2012 to enable the development of other permissible land uses - including funeral homes - that will serve the locality. The subject site is located in an area where the character is undergoing transformation to a medium to high density residential - led mixed use locality. As such the resident population in the area is going and the subsequent demand for essential services, such as funeral homes is also growing. The proposed development provides a funeral home use in an accessible location that is ideally located in close vicinity to Canterbury Hospital and will serve the growing local community. There are no other funeral home businesses within close vicinity of the site and the proposed development will not result in the proliferation of non-residential uses in zone R4. Furthermore, it is important to note that a funeral home is a land use that will not comfortably integrate into a mixed-use development such as on the ground level of shop top housing. It is somewhat different to a typical shop or business premises such as a bank, travel agency or hairdressers. The land use is unique and requires an individual site with separate vehicular access, which the subject site suitably provides. Accordingly, despite the non-compliance with the commercial floor area limitation, the proposed development remains consistent with the objective of the development standard in that it provides a permissible land use that will serve the needs of the growing community in a R4 High Density Residential zone."
The cl 4.6 objection goes on to observe that the proposed development involves the adaptive re-use of an existing building consistent with the stated objective of the clause, and that the proposed development would not be refused having regard to the mandatory relevant considerations in cl 6.5(3)(c) of CLEP 2012.
It is on that basis that the cl 4.6 objection concludes that the objectives of the standard have been met and therefore compliance with the standard is unreasonable or unnecessary.
The "sufficient environmental planning grounds" relied upon in the cl 4.6 objection are summarised as follows:

The proposed development is an adaptive re-use of an existing building;
The proposed use is unlikely to have any adverse impact on the locality despite the floor space non-compliance;
The internal layout could be re-designed to reduce the gross floor area for business premises/commercial use and increase the area for car parking or other uses not included in gross floor area and that would be an inefficient use of the premises;
The additional floor space uses existing floor area with no significant external building works and therefore no adverse impacts on the character and appearance of the streetscape;
The additional floor space does not give rise to any adverse parking or traffic impacts;
The extent of non-compliance does not create any additional impacts to adjoining properties;
The proposed development meets the objectives of the development standard and meets the objectives of the R4 zone;
The proposed development promotes the orderly and economic use and development of land;
The grounds are unique circumstances to the proposed development. The additional commercial gross floor area allows for the adaptive re-use of the existing building which currently exceeds the allowable commercial floor area and raises no additional adverse impacts on the amenity of the locality. These are not simply benefits of the development as a whole but are benefits emanating from the commercial gross floor area breach. In determining whether the proposed development will be in the public interest because it is consistent with the objectives of the R4 zone, the Court is not limited to the cl 4.6 objection.

There is only one of the zone objectives which is relevant which is: • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
As to "day to day needs" the cl 4.6 objection provides: "… the proposed development is for a funeral home which is a business premises that will serve the day to day needs of the local community. The land use is permissible with consent in zone R4 and is located on a site that is suitable for the proposed use. The site is ideally located in close proximity to Canterbury Hospital and provides a service that is essential to the growing population in the locality. There are no other funeral homes in close proximity to the subject site and the proposed development will not result in a proliferation of such uses. Indeed, the proposal is well placed to take advantage of the existing site characteristics, being an individual building of an appropriate size for the proposed use with separate vehicular access. Given the unique nature of the proposed use it is not a land use that can comfortably integrate into a larger mixed use development and the adaptive re-use of the existing non-residential building enables the provision of a funeral home use that will meet the day to day needs of existing and future residents in zone R4 and surrounding residential zones. Furthermore, the development will not prejudice the operation of other land uses that provide facilities and services in the zone, ensuring that the day to day needs of residents continues to be met, despite the non-compliance with the commercial floor space limitation."

Evidence

The traffic experts retained by the parties (M McCarthy for Applicant and S Wais for Respondent) prepared a joint report prior to the final amendment of the plans in which they expressed differences of opinion about the parking requirements and manoeuvrability of vehicles. During the course of the site inspection, after an amended proposal had been provided, the Council's expert agreed that those issues had been resolved. Accordingly, they were not required to give oral evidence.
Planning evidence was provided by R Meachin retained by the Applicant and J Kavanagh employed by the Respondent. They prepared a joint report and gave oral evidence.
Ms Kavanagh provided a supplementary statement in response to the amended cl 4.6 objection.
Mr Meachin did not add any material of significance to his cl 4.6 objection but in cross-examination agreed that there are not less than eight funeral homes within about 5km of the site (using a diameter of 5km from the site), and that when he said in the cl 4.6 objection that the proposed development was not a land use that cannot comfortably integrate into a larger mixed use development it was because of the particular vehicle accessibility issues involving hearses for a use such a funeral home.
Ms Kavanagh opined that the extent of variation from the standard is one that is beyond the scope of cl 4.6 and should be achieved, if at all, by a planning proposal. She said that the proposed development was not a day to day requirement and there are equivalent services available within the general area, her evidence in that regard being similar to that of Mr Meachin. Ms Kavanagh agreed that an objective of the control is to ensure that a business premises development is not of a size or character to create amenity impacts and this proposed development met that objective. She said that an objective of the control is not to undermine the viability of a business/commercial zone and that the limitation of 100 sqm allows for the objectives of the zone to be met by providing facilities that meet the day to day needs of the residents.

Submissions

Any merit issues having been resolved during the course of the hearing, the parties' submissions focused on the remaining issue as to whether or not the activities proposed to be carried out by the Applicant were properly characterised as a form of permissible form of development and whether cl 6.5 precluded the Court from granting consent.
The Applicant submitted that the proposed development was for business premises, a nominated permissible use in the zoning table, being a funeral home one of the uses specifically referred to in the definition of business premises. The extent to which embalming activities were included, it was said that that did not constitute a separate and independent use of the land and was ancillary to the principal use as a funeral home.
The Applicant also submitted that if the embalming activities amounted to the use of the premises for a mortuary, although it was a defined term in CLEP 2012, that it was an innominate prohibited use, and applying the principles in Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 (Pet Carriers) that aspect of the proposed development was nevertheless permissible as business premises. Whilst the proposed development was permissible as business premises, the Applicant properly acknowledged the operation of cl 6.5, and in particular the provision limiting the gross floor of a development for business premises to no more than 100 sqm. The Applicant argued that upon the proper construction of CLEP 2012 the provision did not operate as a prohibition and the provisions of cl 4.6 of CLEP 2012 applied to it. Second, the Applicant submitted that consistently with the "2-step process" in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 (Poynting) the provision is a development standard.
The Applicant submitted that the cl 4.6 objection demonstrated first that the application of the standard was unreasonable or unnecessary because the objectives of the standard were met notwithstanding non-compliance. The objective of the standard identified in the cl 4.6 objection is to limit the scale of commercial premises in certain residential zones including zone R4 to promote high density - mainly - residential land uses. It was said to be consistent with that objective in that the proposed development was a permissible use that provides an essential service to the medium to high density residential uses that surround the subject site and a reasonable degree of flexibility is to be afforded pursuant to cl 4.6 to enable the development of other permissible land uses including funeral homes that will serve the locality.
It was submitted consistently with the cl 4.6 objection that the proposed development was consistent with the only relevant zone objective - to enable other (non-residential) land uses that provide facilities or services to meet the day to day needs of residents. It was said that the proposed development provides a service that is essential to the growing population of the locality, that there are no other funeral homes in close proximity to the subject site, and the proposed development will not result in a proliferation of such uses. As to environmental planning grounds the Applicant points to the cl 4.6 objection dealing with the adaptive re-use of the existing building; the lack of adverse impact on the locality and that the proposed development could be rendered compliant by reducing the amount of gross floor space for the actual business purposes and increasing other uses such as car parking which is not counted as gross floor space.
The Applicant also submitted that if a use for a purpose was identified in cl 6.5 as permissible then it must be compatible or consistent with the objectives of the zone. The fact that the drafter had identified the particular land uses in cl 6.5 was a textual indication that they must be considered by the Council in its instrument to meet the day to day needs of residents in the zone.
The Council submitted that whilst a funeral home was a permissible use as business premises, the activity of embalming amounted to use of the land as a mortuary and was prohibited. The Council argued that because there was a specific statutory regime under the Public Health Regulation 2012 and the Local Government (General) Regulation 2005 which defined any embalming activity as constituting the use of the premises for a mortuary, the use must be categorised under the planning legislation also as a mortuary. Further, it was said that the very nature of the carrying out of embalming placed it outside the notion of any business premises use and must be prohibited.
The Council also submitted that the provision in cl 6.5(3)(b) limiting gross floor area to 100 sqm was not a development standard but was a prohibition. It was said the language of the clause led to that result.
In relation to the cl 4.6 objection, on the assumption that its primary submission was wrong, the Council submitted that the extent of the variation amounted to a "de facto rezoning" and cited Hooker Corp Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438. To grant the cl 4.6 objection the Council submitted would amount to an attempt to circumvent planning law.
The Council further submitted that there were a good number of funeral homes in the general area and that in any event the provision of a funeral home was not the provision of facilities or services to meet the day to day needs of residents and therefore did not meet the relevant objective of the zone.

Consideration

In Pet Carriers Preston CJ reviewed a number of decisions concerning characterisation of purposes and at [55] explained with great clarity: "The decisions fall roughly into two categories. First, there are decisions which involve a purpose which is a genus and one or more species of purposes falling within that genus. If the genus is a nominate prohibited purpose, development for that purpose will be prohibited even if it could also come within one or more species of purposes that are innominate permissible purposes. Conversely, if the genus is a nominate permissible purpose, development for that purpose will be permissible even if it could also come within one or more species of purposes that are innominate prohibited purposes. Decisions in this first category include Egan v Hawkesbury City Council (1993) 79 LGERA 321; Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171; Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343; and Friends of Pryor Park Inc v Ryde City Council."
In this case the genus is business premises. The definition of business premises (extracted in full at [30] above) means a building or place at which an occupation is carried on for the provision of services directly to members of the public or a services provided directly to members of the public on a regular basis. The definition then identifies certain uses which are expressly included within the definition of business premises. Those other uses include funeral homes. It hardly needs saying that the types of uses identified are part of an inclusive definition and there are many other occupations or trades or services which may be provided directly to the public which are not identified in the definition.
There is agreement, understandably, that a funeral home is a permissible use according to the zoning table as business premises. The parties differ when it comes to that aspect of the proposed activities involving embalming.
The embalming proposed is not a separate service provided by the Applicant. It is part of the range of services to be provided, but only in conjunction with a viewing and/or service conducted by or arranged by the Applicant.
Whilst the act of embalming is one of the elements of the activities of a mortuary, it is a service being provided directly to members of the public on a regular basis. Therefore, it is an occupation, professional, or trade carried on for the provision of services directly to members of the public on a regular basis. That is, to the extent that the activities proposed to be carried out fall within the characterisation of mortuary, mortuary is an innominate prohibited purpose and a species of the genus of a nominated permissible purpose, business premises.
I reject the Council submission that because the activity of embalming is the subject of public health legislation and is described as being a mortuary, it is to be characterised as a mortuary for the purposes of the planning regime. Whilst an activity can be the subject of regulation by another legislative regime as well as the planning regime, it can only be the planning regime which determines the characterisation of the purpose of the activities for the purpose of the application of the provisions of that very same planning regime.
Accordingly, in my view, if the activity of embalming means that the Applicant proposes to conduct embalming as a service to the members of the public then it is permissible as business premises.
Alternatively, the activity of embalming is ancillary to the dominant use of premises as a funeral home (Foodbarn Pty Ltd v The Solicitor-General (1975) 32 LGERA 157).
Here it is proposed first that any embalming that takes place will be part of the process of preparation of a body for viewing and/or a service. That is, the embalming is not an end in itself, but is serving the broader purpose of the funeral home. Second, embalming will take place in only 10%-15% of the services conducted or arranged by the Applicant of approximately 130 per year. It forms a very small part of the overall services provided by the Applicant and it should also be observed that the floor space occupied by that activity is a very minor part of the facilities.
It follows then in my opinion that insofar as the proposed development is concerned it falls within business premises and by virtue of the zoning table is a permissible use.
The zoning table which operates by virtue of cl 2.3 of CLEP 2012 is nevertheless subject to cl 6.5 of CLEP 2012. That clause (extracted in full at [25] above) operates as a constraint upon the power to grant consent to business premises and other otherwise permissible uses in the residential zones including the present R4 zone. To reiterate, first the development must be in or replace a building that was at the time of its erection designed, constructed and used for the purposes of shop. In this case it is common ground that the building in which the proposed development is to take place was designed, constructed and used for the purposes of a shop, a motorcycle retail store in this case.
The second constraint is that development consent must not be granted unless the gross floor area of the development will not exceed 100 sqm. This was a significant area of dispute because the proposed development occupies some 365 sqm of gross floor area.
Third, there are mandatory relevant considerations concerning the amenity of the surrounding locality, the suitability of the building for adaptive re-use and the extent of modification, if any, of the building. Those matters were considered and at the end of the day it was accepted by the parties, and by me, that the proposed development was satisfactory having regard to those considerations.
The first issue with the gross floor area limitation in cl 6.5(3)(b) of CLEP 2012 was whether the clause is a prohibition or development standard.
Development standard is defined in the EP&A Act as follows: development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of - (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed.
In Principal Healthcare Finance Pty Ltd v Ryde City Council (2016) 222 LGERA 212; [2016] NSWLEC 153, Robson J very helpfully analysed the authorities on the subject matter of determining whether a provision operates as a prohibition or is a development standard. Whilst at [76] decrying the failure of careful drafting which would avoid such debate, his Honour concluded that what is described as the 2-step approach in Poynting as defined by Jagot J in Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 (Laurence Browning) was the preferred approach. I agree. Those principles outlined in Laurence Browning are: "(1) The provision in question must be "seen as part of the environmental planning instrument as a whole" ( Poynting at 342 [94]). The "wider context" of the provision, as part of the instrument overall, should be considered in construing the provision ( Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182 - 183 [2] per Mason P). (2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of "development standard", that fact alone does not mean that the provision is thereby a development standard. The provision must be "in relation to the carrying out of development" and must fix requirements or standards in respect of an aspect of the development ( Poynting at 333 -334 [58]). (3) Although we must distinguish between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act. As this conceptual division "will bring finely divided decisions", "care must be taken lest form govern rather than substance" ( Poynting at 342 [93]). (4) A provision that prohibits the development under any circumstances controls development, but is not a development standard ( Poynting at 343 [96] and [98]). (5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then "in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development". Hence: Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard. ( Poynting at 343 [98]). (6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development ( Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269-270 per McHugh JA and Poynting at 343 [97]). (7) An essential condition of the definition of "development standard" is that the "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" ( Carr at 269 -270 per McHugh JA). (8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of "development standard" shows that "a broad view of what is an aspect of a development should be taken" (Poynting at 343 [99]).
I regard the application of the 2-step test relatively straightforward in this case.
The provision does not prohibit the development under any circumstances. The development for the purpose of business premises is permissible firstly in the zoning table and subject to the constraint in cl 6.5. Plainly, if the gross floor area for business premises is less than 100 sqm then the use is not prohibited by that provision. That is the first step.
The second step is whether the maximum area for gross floor space specifies a requirement or fixes a standard in respect of an aspect of the development. In my view it certainly does. The standard is that the development can only be carried out within the amount of area identified. The aspect of the development concerned is the land or building occupied by it.
Accordingly, it follows in my view that the requirement in cl 6.5(3)(b) that the gross floor area of the development will not exceed 100 sqm is a development standard.
The Applicant pointed out that cl 4.6 of CLEP 2012 excludes certain provisions from its operation but does not exclude cl 6.5. In the context of the whole of the instrument, the Applicant submitted that cl 6.5(3)(b) was amenable to variation pursuant to cl 4.6 of CLEP 2012 simply as a matter of construction of CLEP 2012. That approach is, in part, an application of the expressio unius principle of construction. Whilst that approach has some attraction, I would prefer the conventional approach in considering the 2-step approach initially identified in Poynting carried out above, whilst I do note that there are no textual indications in CLEP 2012 which would suggest any conclusion other than the provision is a development standard and amenable to variation under cl 4.6.
Having determined that the provision of cl 6.5(3)(b) constitutes a development standard then cl 4.6 of CLEP 2012 applies because cl 4.6(2) provides: Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
The questions then are whether I am satisfied that:

the cl 4.6 objection has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary (cl 4.6(3)(a) and cl 4.6(4)(a)(i));
the cl 4.6 objection has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i));
the proposed development will be in the public interest because it is consistent with the objectives of the standard (cl 4.6(4)(a)(ii));
that the proposed development will be in the public interest because it is consistent with the objectives for development within the R4 zone (cl 4.6(4)(a)(ii)).

The Applicant says that compliance with the development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding non-compliance with the standard, often referred to as the first method identified in Wehbe. Where the objectives of the standard are not expressed within the clause itself it is necessary to determine what are the underlying objectives of the development standard.
The cl 4.6 objection says this: "The assumed objective of this development standard is to limit the scale of commercial premises in certain residential zones (including zone R4) to promote higher density - mainly - residential land uses."
That can be described as a strategic objective. That is, whilst the commercial use can occur within or replacing an existing or historical retail use, its size should be limited so as not to hinder redevelopment for the purposes of high density residential uses as the R4 zone intends. The Council agreed that that was an underlying objective of the standard.
In submissions, the Applicant did not entirely embrace that statement of underlying objective but said that: "looking for the objective of the standard of the 100 sqm, it relates to small scale commerciality being of its nature unlikely to create the amenity impacts, therefore being suitable in terms of power (c)(2), and not having a significant degree of any modification of the footprint or façade of the building. So that it is then compatible with the way the other provisions work." (T56-32-37)
In my opinion the statement of the underlying objective of the provision stated in the cl 4.6 objection is correct. Whilst it does not matter in the circumstances of the present case (because there are no unacceptable amenity impacts) I do not regard the gross floor area limitation as having an underlying objective of controlling amenity impacts. The development standard falls within two other provisions of cl 6.5 - the first confining uses such as business premises to buildings which have historically been used for the purposes of a shop. That is a locational criteria to confine future commercial uses to locations where they have historically occurred, or more specifically, where shops have existed for some presumably considerable time.
The third provision provides for mandatory consideration of the amenity of the surrounding locality which is presumed to be a high density residential environment. That is, the whole of the clause makes no assumption about the acceptability of the impacts of a commercial use limited to 100 sqm of gross floor area but emphasises that it is a mandatory relevant consideration to consider the impacts in the context of the residential environment. The provision under consideration within that context focuses upon the strategic goal of limiting future commercial uses in size so that the promotion of higher density residential uses is not hindered.
In my opinion the cl 4.6 objection fails to properly address the underlying objective of the standard. The question is not whether the proposed development itself meets a particular need, or can be carried on in the premises, but rather whether because of its size in excess of the standard it will impede the promotion of higher density residential land uses. There is no analysis of the likelihood of redevelopment which would include the site, whether there are any site-specific constraints upon development for high density residential purposes, whether there is any demand in the short to medium term for high density residential development by way of example. Addressing such matters has the capacity to establish whether allowing the use for business premises substantially in excess of the development standard because it does not impede the high-density residential development anticipated.

Conclusion

Whilst recognising that the proposed activities are properly characterised as a permissible use and there are no unreasonable amenity impacts, the Applicant has failed to sustain its objection pursuant to cl 4.6 of CLEP 2012 to the development standard in cl 6.5(3)(b) of CLEP 2012.
Accordingly, the appeal must be dismissed.
The Court orders that: 1. The appeal is dismissed. 2. Development application for change of use to funeral home including minor internal building works at 605 Canterbury Road, Belmore is refused. 3. The exhibits other than Exhibits A, 1 and 2 be returned.

Amendments 25 November 2020 - Correction to the cover sheet 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: 25 November 2020

(2004) 138 LGERA 237

(2013) 201 LGERA 116

(2002) 124 LGERA 147

(1986) 130 LGERA 438

(2016) 222 LGERA 212

(2001) 116 LGERA 319

(2007) 156 LGERA 446

(2008) 236 LGERA 256

(2002) 119 LGERA 171

(2011) 180 LGERA 343

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