For Mark Gauci (Nielsen & Handley Funeral Services)

Ms Joey Whitehead, town planning consultant, JW Planning Services.

Ms Michelle Blackburn, Solicitor, Blackburn Lawyers.

Use and Develop land for a Funeral Chapel with Reduction of Car parking requirements. More specifically, it is proposed to:

• Redevelop the existing dwelling for use as a funeral chapel to seat 200 guests. The building will require alterations to the internal layout as well as a minor extension of 56.65 square metres to the main building and an increase in the carport area of 51.85 square metres.
• Provide 52 car spaces on site. These spaces are to remain unsealed and not line marked.
• The existing chapel is to be returned to general staff office space and additional mortuary space and will not be used or accessed by patrons or the general public.

Application under Section 77 of the Planning and Environment Act 1987.

Clause 32.01-1 Funeral parlour is a Section 2 use.

Clause 52.06 Waiver of car parking required under clause 52.06-5.

Clauses 12, 17.01, 21.02-1, 21.06, 21.11, 22.01, 22.02, 22.02-2, 22.02-3, 52.06 and 65.

The subject land is an 8735 square metres of land. The land forms a wedge shape between two roads, Korumburra Warragul Road to the west and Bona Vista Road to the east.

The property has one shared boundary with the Masonic Lodge to the south.

The site is developed with a single storey building used as a funeral parlour including funeral arranging, a mortuary and chapel. The building includes and attached carport and garage.

There are 40 unsealed and not line marked car spaces on site to the south of the existing funeral parlour building.

1. In May 2011, the Baw Baw Shire Council determined to refuse to grant a planning permit for the Use and Development of the land for a Funeral Chapel with Reduction of Car parking requirements. A number of objections were received raising concerns with the proposal and supporting Council's refusal. It is a decision that the permit applicant has requested by reviewed by the Tribunal.
2. It was evident at the commencement of the hearing, that the detail of what was proposed was either a 'moving feast' or incomplete details had been provided to Council or there was a misunderstanding by Council as to what exactly was proposed. Council was unaware that the existing Chapel would no longer be used. Council assessed the application on the understanding that there would be two Chapels on site. I also note that the parties differed in their calculation of car parking and it was subsequently calculated during the hearing.
3. The Tribunal receives amending plans for consideration during the hearing. There is a process for this[2] and it is required to be undertaken for amending plans to be considered. In this case, there was no such process followed. Therefore, whilst there is an offer to reduce the number of patrons to 160 persons (detailed below) and details that the existing chapel will not be available to the public, these types of details should form part of the information submitted for consideration. I find it necessary to clarify exactly what the application for permit is.
   • It is proposed to extend and convert the existing dwelling on site to a Funeral Chapel to seat 200 people.
   • The existing chapel located within the funeral parlour building will be returned to general staff office space and additional mortuary space and will not be used or accessed by patrons or the general public.
   • There are 40 car spaces existing on site. These spaces remain unsealed and not line marked. It is proposed to provide 52 car spaces, again unsealed and not line marked. Based on the floor area of the proposed Chapel, a total of 64 car spaces are required. There is a deficiency of 12 car spaces. It is proposed to provide these spaces using the Masonic Lodge car park on the adjoining property. Whilst there are currently barriers in place between the two sites, these would be removed and vehicle and pedestrian access provided.
4. During the hearing, Ms Whitehead made the following further submissions:
   • There is a signed car parking Agreement between Nielsen & Handley Funeral Services Pty Ltd and West Gippsland Masonic Centre Inc[3] for the 'non exclusive right to make the land coloured blue available as a car park in conjunction with the land coloured green as a car park for people attending Funeral Chapel Service between the hours of 9.00am and 5.00pm Mondays to Saturdays (inclusive) SAVE AND EXCEPT every third Tuesday of the month between the hours of 9.00am and 12noon and every second Wednesday of the month between 10.00am and 1.00pm'.

It was further put to me that whilst the above agreement is not a Section 173 Agreement, the permit applicant is sure that the Masonic Lodge would enter into a 173 Agreement for the exclusive use of the car park to Nielsen & Handley. I was not provided with any evidence to support this statement.

• Nielsen & Handley would be willing to reduce the patron numbers to 160 persons.

1. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions presented with regard to the applicable policies and provisions of the Baw Baw Planning Scheme, I have decided to affirm the decision of the Council and refuse to grant a planning permit. My reasons follow.

1. I have refused the application as the proposed development has failed to provide adequate car parking. I will also address the issue of the use in response to objector concerns. I also have concerns regarding the level on information submitted with the application.

1. I will firstly deal with the car parking issue. It is proposed to provide a Funeral Chapel for 200 patrons. Clause 52.06 requires:

Funeral parlour - Car spaces to each seat or to each sq m of net floor area, whichever is greater 0.3.

1. Based on the floor area of the proposed Funeral Chapel, 64 car spaces are required. Of these, 52 spaces can be provided. Ms Whitehead submitted that the waiver of 12 spaces is acceptable given the following.
2. Nielsen & Handley Funeral Services undertook a car parking survey. The survey demonstrated that at a Funeral attended by approximately 30 people on a Tuesday at 11.00am there were 22 car spaces unoccupied. At a Funeral on Monday at 3.00pm where 118 people attended there were 6 car spaces unoccupied. Whilst this survey might provide some background information, I find that I cannot give it weight as there was no supporting documentation as to what car parks were surveyed. For instance, did they count the cars parked in the Masonic Lodge or on the street? It has not been prepared by a professional Traffic Engineer and is not considered to be evidence.
3. In any case, what the survey does show is that for a funeral of 118 people, there were only 6 car spaces unoccupied. In the event of a 200 person funeral, those spaces would be used as well as the extra provision of the statutory required 12 car spaces.
4. I do not find that the loose arrangement with the Masonic Lodge acceptable. I was provided with an agreement titled 'THE CARPARK AGREEMENT' signed by both parties on the 11th October 2011. This agreement however permits the non-exclusive[4] right to the car park. My understanding of this agreement is that Nielsen & Handley guests can park in the Masonic Lodge car park, but so to can anybody else. Or indeed, if the Masonic Lodge was to hire out their hall to another group, they could also use the car park.
5. Ms Blackburn submitted that if any car parking agreement is to be provided, it should be a Section 173 Agreement. I agree with this submission. Ms Whitehead then submitted that the Masonic Lodge would indeed enter into a Section 173 Agreement for the exclusive use of the car park to Nielsen & Handley. Ms Whitehead urged me to include the Section 173 Agreement as a condition and if they cannot meet the condition then the permit could not be acted upon.
6. I do not agree with Ms Whitehead's submission to include a condition requiring a Section 173 Agreement, when I have no evidence before me that the exclusive use of the car park would be entertained by the Masonic Lodge. Whilst the use of the Masonic Lodge car parking may be considered a viable option, I have concerns regarding the acceptability of such an agreement with the Masonic Lodge and the existing Funeral Parlour car park. I also have concerns with the current state of the car park. The existing car park is currently unsealed and not line marked. Council included the following as a draft condition:

Before the use and development starts a plan showing the construction of the parking and access areas indicated on the endorsed plans must be submitted to the responsible authority. The plan must be no larger than A3 format, be drawn to scale, and show:-

• Full construction to all weather standard
• Line marking to indicate each car space and all access lanes
• Drainage for stormwater runoff

1. Ms Whitehead objected to this draft condition submitting that they do not want to line mark and seal the car park. I have a concern with this. If they intend to rely on the car park being increased to 52 spaces, in order for these spaces to be provided on the ground, then they will need to be sealed and line marked.
2. I have not been persuaded that the car parking issues have adequately been addressed. I am not convinced that I can waiver the requirement of 12 spaces as required under clause 52.06 or that there has been an acceptable alternate arrangement to provide the shortfall car spaces. The purpose of clause 52.06 amongst other things is to:

To ensure the provision of an appropriate number of car spaces having regard to the activities on the land and the nature of the locality.

To ensure that the design and location of car parking areas:

• Does not adversely affect the amenity of the locality, in particular the amenity of pedestrians and other road users.
• Achieves a high standard of urban design.
• Creates a safe environment for users, particularly at night.
• Enables easy and efficient use.
• Protects the role and function of nearby roads.

1. I find that the proposal as it is presented to me fails to ensure the provision of an appropriate number of car spaces and fails to provide car parking that enables easy and efficient use.

1. Concern was raised by an objector that the use is inappropriate in the location. The site is zoned Residential 1 and is currently used for the purposes of a Funeral Parlour. The Chapel use is to be relocated from one building to another with an increase in patron numbers from approximately 100 to 200. There will be an intensification of the use.
2. The planning scheme offers little assistance in light of planning policies. The planning scheme provides for the rural settings of townships and the high quality landscapes in the Shire, which are highly valued by the local community. There is no policy within the scheme that directs the proposed use to a particular area. I therefore turn to the zoning. The purpose of the Residential 1 zone is:

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

1. Putting aside the car parking issue, I do not have a concern in principle regarding the use of the land for an new Chapel. Whilst there will be an increase in patrons, I do not consider noise would be an issue of concern or visual amenity given there is an existing building that is to be converted and extended in a minor manner.
2. I note the concern from a neighbour regarding the psychological impact of the use on their property opposite the site. I adopt the observations made by Member Hadjigeorgiou in Walsh v Banyule CC[5] in addressing the issue:

From a psychologist's perspective and with specific regard to the well-being of living in the vicinity of a funeral parlour and in the community in general, I strongly believe that the proper place for funeral parlours is amongst the general community, signifying and facilitating our realistic understanding of death in the human life cycle."

1. This is a site with an existing use of a Funeral Parlour and Chapel. It is important to make the distinction that it is not a new use but an intensification of the use on the site. I do not have concerns of the use of the land or the visual impact of the proposed built form.

1. Whilst it is not the role of the Tribunal to comment on any future or possible planning application, in this case, I consider it appropriate to provide the following comments. Any future planning application needs to provide and confirm the following information:
   • The proposed number of patrons.
   • The uses on the land i.e. how is the existing Chapel to be used.
   • Car parking arrangements. If empirical evidence such as car parking surveys are to be relied upon, then they should be undertaken by a professional Traffic Engineer.
   • If an arrangement with the Masonic Lodge is to be relied upon, then evidence that they would be willing to enter into a Section 173 Agreement is warranted.
   • If the car park is not to be sealed or line marked, then this issue needs to be justified.
2. Having regard to the above, the decision of the responsible authority will be affirmed and no permit issued.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] PNPE9 - Amendment of Plans and Applications.

[3] The Car park Agreement dated 11 day of October 2011

[5] Walsh v Banyule CC [2004] VCAT 1131 (9 June 2004)