Kearney v Parramatta City Council

Zhang v Canterbury City Council [2001] NSWCA 167; CASES CITED: BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399; Broad v Brisbane Council

APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick

LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz, solicitor SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10233 of 2006 Chris Kearney v Parramatta City Council

JUDGMENT This determination was given extemporaneously and it has been edited prior to publication. 1 This is an appeal under s 97 of the Environmental Planning And Assessment Act against Parramatta City Council's refusal of a development application for a facility described as a "Pet Crematorium". That is the cremation of domestic animals.

2 The subject site is known as 14 Dunlop Street, North Parramatta, and it is within the Employment Zone of the Parramatta LEP. The site is on the edge of the Employment Zone and opposite the subject site is a Residential 2C Zone. On the opposite side of the street there are a number of walk-up residential units in the block where the subject site is located.

3 The subject cottage is adjoined by other heritage listed premises with employment uses. The Court met on site and conducted an on-site hearing. However at that point in time I did not determine the matter but now I have the benefit of reading the judgments and the material that was handed up at the on-site hearing.

4 The premises are heritage listed and they have recently been refurbished. The council approved an extension to the cottage at the rear to provide for a warehouse facility which is where the cremator is located.

5 The proposal is for the business to operate from 8 am to 6 pm Mondays to Fridays and also for administrative tasks to be undertaken on Saturdays and Sundays but without the cremator in operation. The business will employ a maximum of five persons and the area for the cremator is within the warehouse at the rear of what is the heritage cottage.

6 The site has frontage to Dunlop Street of some 11.2 m and a western side boundary setback of 21.3 m, an eastern boundary of 23 m and a rear boundary of some 10 m yielding a total site area of 411 sq m. The general area is, as already described, one that is the zone interface between the employment zone and the Residential 2C Zone opposite. As such, consideration of the interface in the zone needs to be carefully considered.

7 The council refused the development application and its determination was dated 10 May 2006. It refused it on the basis that: the proposal is inconsistent with the zone objectives and the applicant has not satisfactorily demonstrated the use of the premises will not unduly impact on surrounding residential uses; vehicle deliveries and manoeuvring; and the inappropriate location for a sensitive land use as it is located opposite residential flat buildings and does not have an appropriate buffer. The other reasons cited were the insufficient information provided for the assessment, waste disposal issues, and also the public interest.

8 The issues that were identified by the council in the proceedings are: (1) the impact of the emissions and this relates to the nearby residential flat buildings, (2) the impact on the sense of wellbeing in that there will be unacceptable impacts from the use of the premises on the amenity of the occupiers of the nearby flat buildings, and the inappropriate land use zone interface and vehicle access manoeuvring and insufficient information. 9 It is also noted that there was a trial conducted of the cremator and there were air quality tests carried out on that occasion. The Court heard evidence on the view from the Court-appointed expert for air quality issues. Dr Nigel Holmes provided a report to the Court and also was there to advise the Court on the day of the proceedings. In Dr Holmes' report he states that: "The background is the cremator has been installed within a warehouse building. It is referred to as a long-life crematorium. The unit is a twin chamber unit capable of cremating 91 kilograms per hour of animal remains. Animal bodies are placed manually into lower chamber the primary chamber which is fitted with two burners which raise the temperature to the chamber to 927 degrees centigrade using natural gas. The combustion products pass to a secondary chamber which is maintained at 982 degrees centigrade. The combustion products have a residue, residence time in the secondary chamber of approximately one second. This ensures that all material is completely combusted and odorous compounds are oxidised to non-odorous compounds.

10 Dr Holmes also stated that: "Using the results of the material that was submitted with the application will either cause me to correctly estimate the effects of the cremator or to over-estimate them. It is highly unlikely the effects would be under-estimated. It is my opinion, based on the description of how the cremator operates and my observations of the testing at Parramatta, that the cremator will be able to be operated without any detectable odour in the surrounding community".

11 In summary, Doctor Holmes says: "This report has reviewed the potential air quality impacts of stack emissions from the cremator installed. Model predictions show that the cremator emissions would comply with the DEC's assessment criteria with a significant margin so it is unlikely that any adverse air quality effects would occur". 12 At the on-site hearing there were a number of resident objectors to the proposal and their concerns related to the impact of the proposal in terms of the perception of such a facility opposite residential dwellings. They were also concerned about the operation of the facility and in particular commented on the fact that whilst the testing may have indicated that certain criteria can be satisfied that there is the chance of human error and this, in their mind, was a significant concern in terms of the operation or management of the facility. And the residents were also concerned that the trial was not on the basis of the cremator being to full capacity when the emissions were measured.

13 The perception for the residents is one that is a valid consideration in the Court's consideration. The real question for the Court is whether in this case, having regard to all the circumstances that such perceptions should outweigh all other merit considerations of the application which includes the physical impacts, emissions and traffic. In this regard I will say at this point, although I will clearly detail my reasons, that if there are physical impacts this would clearly be a constant reminder of operating opposite the residential units that are sensitive receptors. The subject use is one that is most uncommon and unique and its assessment must be carefully considered.

14 At this point I will say that I have decided to allow the development on a 12 month trial basis and in this regard I will refer to the judgment in the Court of Appeal of Zhang v Canterbury [2001] NSWCA 167. In the circumstances of this case I consider that a trial period is appropriate to allow the residents' concerns about emissions, odour, fumes, noise, dust, to be assessed and monitored during the trial period and it will also give the applicant the opportunity to demonstrate that the facility can be operated without any physical environmental impacts on the area.

15 I have considered this case of a pet crematorium in terms of the case law referred to me and it is distinguishable from crematoriums for humans and funeral parlours because there are generally a much greater range of activities associated with such establishments or institutions, even though they are generally managed and operated in a discrete manner. But there are significant numbers of people that visit human crematoriums funeral parlours, as opposed to what is proposed in this application which is a relatively small scale pet crematorium for the use only of incinerating pets.

16 The residents' concerns also went to the fact that there may be: bereaved pet owners visiting the site; signage that may be associated with the site and the perception would be, in their words, "off-putting in terms of the idea of a pet crematorium opposite a residential area".

17 I am satisfied that the site itself in terms of the heritage building will not be impacted and this was not raised as an issue by the council. I am satisfied that the premises could be discretely run with the conditions as proposed by the council, but that the trial period should be undertaken to ensure that there are no physical impacts as a constant reminder for the residents in terms of the continued use of the subject premises.

18 The Court at this point needs to point out the planning regime for the subject site. As I stated, it is covered by the Parramatta Local Environmental Plan 2001 and in terms of Clause 16(3) consent should not be granted to the carrying out of development on land to which the plan applies unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. In this regard the more relevant objectives of the zone known as No. 4 Employment Zone include: (a) to encourage a range of employment enterprises that are compatible with existing land uses within both this Zone and the surrounding areas.

(h) to ensure that development is carried out in a manner which does not detract from the amenity enjoyed by residents in adjoining localities or from the operation of local or regional road systems. 19 The other objectives are: (b) to limit the extent of commercial development in the employment zone to ensure the viability of nearby businesses. (c) to retain a predominant role of Parramatta Industrial areas,

(d) to facilitate a range of non-industrial land uses that serve the needs of workers and visitors,

(e) to enable limited development for commercial premises to enhance the viability of land uses within the zone.

(g) to ensure that development improves the environmental quality of the City of Parramatta and industries conform to best practise environmental and hazard reduction standards. 20 The dictionary to the plan provides for the definition of "Industry" and "Offensive Industry". Suffice to say that the council does not consider that the development is not permissible in the subject zone and as such this is not raised as a point of law or a question as to the permissibility of the use in the Zone. The council officer's report states.: "As the development is considered to have an adverse impact but not a significant adverse impact, the proposal is considered to be a permissible form of development in the Zone 21 There were a number and very articulate objectors that gave evidence to the Court in these proceedings and as I stated, their concerns are primarily with respect to perceptions as well as in the event of failure of the operation or the technology, an assurity that there would not be any physical environment impacts of the proposed development. The objectors that gave evidence included Mr Makris at No. 12 Dunlop Street, Mr Vincent at No. 18 in a heritage building, and Ms Gooch, Mr Spindlier, Mr Donaldson and a number of other residents from the residential flat buildings.

22 The Parramatta Development Control Plan for Industrial Development also has a number of provisions that relate to the objectives. That is: "to ensure that the design of the development enhances the planned future streetscape and visual quality of the public domain in the employment area generally; and to enhance the interface between new development surrounding land users and the public domain".

23 The objectives the social impacts and community benefits section of the plan are: "to identify the negative impacts arising from development; to implement strategies to minimise these; and to ensure that developments do not adversely impact on community cohesion and wellbeing but actively enhance and build cultural communities".

24 The Court in considering the use has also had regard to the Parramatta LEP Heritage and Conservation although it is not contested that the proposed development is contrary to the heritage provisions of the plan. The subject premises are identified in the Schedule to the LEP for heritage provisions.

25 The other relevant control is that relating to the Parramatta Sydney Regional Environmental Plan No. 28. In particular the matter raised was parking and transport and it is noted that this plan provides for a transport strategy and the aim of the plan with regard to transport provision includes to implement parking policies that discourage continued reliance on private vehicle use, reduced traffic congestion and improve pedestrian amenity.

26 The car parking provisions of the REP are in cl 57 and it states "the number of car parking spaces provided for use for the purposes of a building of a kind described in the table are not to exceed that calculated in accordance with the table and any fraction is to be disregarded". For commercial development in this precinct it is one space per 50 sq m and for the industrial one space per 70 sq m. The parking provision is considered to be adequate and in accordance with the Council's planning philosophy and regime and that articulated in terms of SEPP No. 28.

27 Concerning the number of vehicles to the site it was proposed that three vehicles be used for the collection of the deceased animals. The applicant has agreed that this be reduced to two vehicles to service the premises and there are car parking spaces within the warehouse area and all activities are to be confined to the rear of the building where the warehouse is located, with the access coming from Dunlop Street. The BCA requirements are that the garage door can be opened just for the entry and exit of vehicles and at all other times the roller doors can remain shut.

28 The judgment that I refer to is that of Zhang v Canterbury. This is a judgment on an appeal, s 56A appeal that was then heard in the Court of Appeal and the relevant section of this judgment relates to the time limited condition and Spigelman, CJ NSW states: "I do not accept the characterisation of the Commissioner's decision as having effectively postponed determination of an essential matter for one year. As I understand the Commissioner's decision he was not satisfied that the likely impact was such that an unlimited consent should be given. He was satisfied that the likely impact during a period of 12 months was such that a consent for that period of should be given. This involved an assessment of the merits which was open to him. There was no error of law in this respect. … I do not see any necessary incompatibility between the imposition of a condition limiting a proposed use to a probationary or trial period and the statutory requirement the decision-maker take into consideration both the likely impact of the development and the suitability of the site for the development. It is possible to take into consideration matters even though their full significant cannot be known with precision. Where, as in this case, the nature of the development application is for the use of existing premises and accordingly adverse effects are readily reversible a probationary or trial period may be an appropriate exercise of the statutory discretion. The likely impact or suitability will never be capable of complete assessment. Indeed that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation at least in circumstances where adverse effects will cease if the development consent were not in the event extended. The focus is then on the likely impact during the probationary period.

29 It seems to my mind that the trial period and the purpose of the trial period as articulated in the above judgment is most relevant to the circumstances of this case to allow the monitoring of the physical impacts that are of concern to the residents and it will also allow for the monitoring of the management of the facility. If the operation of the facility is discrete then the use should not create an unreasonable impact on the perception of the sense of well being.

30 In terms of the issue of the zoning, the Court recognises that the zoning does permit the proposed use. It also recognises that being at the interface with a residential zone, that the application warrants closer consideration and in that regard a trial period is appropriate.

31 I refer to the matter of the former Chief Judge of this Court, McClelland CJ in BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 where he refers to the zoning and the fact that one must have regard to and give some weight to the zoning. It is also acknowledged in that judgment that there must be consideration in terms of how broad a zoning is and is a matter that I have also considered in my assessment of the suitability of this site for the proposed development. However, I am satisfied the proposal could be operated in a discrete manner. The issue here is that there be no unreasonable impacts in terms of emissions from the stack at the rear of the premises in the warehouse portion. This is not highly visible although from some of the residential buildings or units it is observable.

32 The respondent provided the Court with a most comprehensive set of judgments which go to the issue of amenity and perceptions, and as I said, I do consider that perceptions are a valid consideration, but the question is whether one would give determinative weight to perceptions. In this case I do not consider that determinative weight should be given to perceptions alone, but if in combination with an adverse physical impact in terms of emissions this could be a reason to refuse the application as such and should be further considered during the trial period. That is, if there was not only a perception but there was a more tangible and concrete concern in terms of emissions, this would then create concerns about amenity impacts on the residential units about the perception of the use and this is worthy of further consideration.

33 The case that is often quoted in many matters such as funeral parlours and brothels is that of Broad v Brisbane Council, in the Supreme Court of Queensland. And in this judgment, whilst it is a very old judgment of 1986, nonetheless it is one that probably provides for a recognition that perceptions and the concept of amenity is a very broad issue. I quote: "The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible, such as traffic generation, noise nuisance and even the way of life of a neighbourhood. Other concerns are more elusive such as the standard or class of a neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect that can be measured by the additional traffic and all council agreed that the provision of a funeral parlour was a good example of an institution which whilst discrete in its conduct and relatively small in its production of physical consequences would be likely to have an effect in the way of atmosphere. Where this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident. These remarks are not intended to encourage resort of vague statements as justification for an irrational conclusion but it is necessary to recognise that some matters in this area although intangible and difficult to articulate, may be real and may be properly taken into consideration".

34 At the end of the day it is whether determinative weight should be given to those perceptions. The perceptions that were expressed by the residents also related to the impacts or the physical impacts and the fear of those physical impacts and the 12 month period will allow for these to be monitored.

35 The judgement of Broad also states: "In determining the likely effect of a proposed development on the amenity, the Local Government Court is clearly entitled to have regard to the views of residents. The question is whether a resident's view should be disregarded where it appears to be purely subjective with no suggested justification in objective observable likely consequences of the establishment of the proposed use. In my opinion such a subjective view need not necessarily be disregarded. Very often of course the evidence of such a view would be accorded little, if any weight. In forming his own view on the likely effect of the proposed development on the amenity of an area a Judge would, I think, ordinarily prefer views from residents which find justification in specific concrete likely effects of the proposed development..." He suggested that central to the significance of apprehended injury to amenity is a question of what residents are justly entitled to expect. But that question is ordinarily not to be answered by reference to absolute immutable standards but will usually itself depend in turn on other questions of degree.

36 I am of the opinion that in terms of the issue of degree a pet crematorium, whilst there may be concerns initially expressed should not create long term adverse amenity impacts and the trial period is appropriate.

37 The issue of the conditions is a matter that I need to further ask the parties about. The conditions have been formulated such that some of the residents' concerns are addressed, that is in terms of the hours of operation and the fact that it is a Monday to Friday activity from 8 till 6 pm. The loading and unloading by the vehicles that service the facility is also addressed in council's conditions and the need for the premises to be operated in a discrete manner by the closure of the roller shutter door at all times except when vehicles are entering and leaving the premises. There is also a complaints register that has been identified within the conditions and this is also of importance for the 12 month trial period. The condition about no advertising of the premises as a pet crematorium is imposed however, for the vehicles that deliver the deceased animals to the facility. I have determined that this is unreasonable to impose and therefore it is to be deleted.

38 In terms of the trial period, this forms part of the conditions and clearly if the applicant wishes to continue the operation after the 12 month period it will be necessary to submit a Development Application to the council and to provide the council with enough time to process the application prior to the expiration of the 12 month period. (The trial period is to begin from the time the premises commence operation for the use of the pet crematorium.)

1. The appeal in respect of the property known as 14 Dunlop Street, North Parramatta, is upheld in part.

2. The development application submitted to Parramatta City Council, and as amended for a pet crematorium is granted a 12 month trial period subject to the conditions contained in Annexure 'A'.

3. The exhibits except, the plans and conditions are returned to the parties.

              J S Murrell
              Commissioner of the Court
              rjs

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.