NSW United Turkish Islamic Centre v Liverpool City Council - [2013] NSWLEC 1150 - NSWLEC 2013 case summary — Zoe

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NSW United Turkish Islamic Centre v Liverpool City Council

[2013] NSWLEC 1150

Land and Environment Court (NSW)|2013-06-06

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2013-06-06

Catchwords

(2009) 172 LGERA 338 Itaoui v Liverpool City Council [2013] NSWLEC 1003 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Source

Original judgment source is linked above.

Catchwords

(2009) 172 LGERA 338 Itaoui v Liverpool City Council [2013] NSWLEC 1003 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Judgment (3 paragraphs)

[1]

Mr D Baird Solicitor (Respondent) Solicitors Bartier Perry (Applicant)

[2]

HWL Ebsworth Lawyers (Respondent) File Number(s): 10333 of 2012

[3]

Ex Tempore Judgment 1SENIOR COMMISSIONER: 31 Greendale Road at Bringelly (the site) is an allotment of a little over ten hectares in a rural setting. It is surrounded to the east, north and west by rural allotments of similar dimensions. The Turkish United Islamic Association (the Association) has been seeking, for some five or six years, development consent for the use of this site as a cemetery. The present Development Application was made to Liverpool City Council (the Council) in 2010 and is Development Application 957/2010. The Council provided an Amended Statement of Facts and Contentions during the course of the proceedings, proceedings that have been somewhat protracted (for reasons to which I will refer later). 2There are three other approved cemeteries on Greendale Road, one of which (at 41 Greendale Road) is but a few allotments to the west of the site. That is an issue that arises in the context of the Development Control Plan provisions to which I will return. 3The Development Application was referred by the Council to its Independent Hearing and Assessment Panel on 29 September 2011 and that panel recommended the refusal of the application on a wide range of grounds. 4In these proceedings, the revised contentions propose that the application should be refused on a number of bases:

First, that it does not comply with the minimum lot size provided for in the Development Control Plan in part 5 cl 9.13;
Second, that the site is inappropriate because it is both environmentally significant land constrained by areas where the water table is within three metres of the ground surface; and
Thirdly, that there are overland water flow issues that are unable to be resolved satisfactorily. 5In the context of the contentions, I note that the question of the groundwater table has, on my understanding, been resolved between the parties as a consequence of the amendments to the plans to which I will refer shortly. 6The site includes a significant remnant of Cumberland Plain Woodland which is a critically endangered ecological community. 7The Council also suggested that the application should be refused because of its impact on the local area - both as to streetscape and landscaping. This related to cumulative traffic impacts, amenity impacts on the local residences, the necessity to widen the road at the access point and the likely impact that that would have on landscaping (exacerbating the amenity and streetscape impacts) and, finally, that the landscaping did not permit adequate screening from surrounding residential properties. 8Questions of compliance with the zone objectives were raised, overland water flow and flooding issues and then a wide range of matters pressed by objectors (of whom there were a significant number). 9Finally, there were a number of matters that were said to be deficiencies but were matters that were capable of being dealt with by condition - including the question of the design for a changed access to be created at the entrance to the property (with a right turn lane in and a left turn lane out). A number of matters in the Amended Statement of Facts and Contentions were raised concerning insufficiency of information (these were confined to flooding and stormwater matters). 10It is convenient to traverse the state of the plans as this matter has evolved. 11The original application was for a significantly larger development than that which is now proposed (contained in a site plan dated November 2009 and a landscape plan also dated November 2009 - it is unnecessary to refer in detail to those plans). 12On 3 October 2012, the Acting Registrar granted leave to the applicant to rely on a range of plans and documents as an amended form of the application - those included a number of matters that are set out in the first two pages of an affidavit by Mr Loether that was filed in support of the Notice of Motion to rely on amended plans. 13The revised plans significantly altered the internal layout of the proposed cemetery development and were those upon which a variety of joint conferencing discussions were held between relevant experts. This was the state of the plans when the matter first came on for hearing on 4 February 2013. 14During the course of the site inspection (and subsequently), it became obvious that a number of matters, particularly those relating to overland water flow, had not been addressed in an appropriate fashion in the plans for which leave was given in October 2012. 15As a consequence, after three days of hearing, the parties requested that I undertake what amounted to an "in hearing" case management to enable the issues to be clarified between the parties and to provide the applicant with an opportunity to consider further whether additional amendments were required to the plans. 16I agreed to that course of action because it is clear to me (as I have indicated on several occasions during the subsequent hearing) that, contrary to the ordinary circumstances in the Court where an applicant for development is either an individual seeking development of their own property for their own benefit or a commercial developer seeking development consent for reasons of making a profit, in this case what I was, in fact, dealing with were two competing community interests - that is the interests of the community represented by the respondent Council and the interests of the Turkish Islamic community represented by its association. 17For that reason, the further discussion and amendment process was undertaken resulting in a final set of plans that are Revision F plans for the overall site plan and Revision E to the landscape plan. These are provided as the basis for my consideration as to whether those plans should be granted consent - subject to one matter concerning the Council's proposed conditions of approval to which I will return shortly. 18Accompanying the material was a letter (which became exhibit E) from Mr Harding, the town planner giving evidence on behalf of the applicant, setting out the revisions that were contained in the plans and providing a schedule of details of changes to those plans. It makes it clear that those amendments were regarded as responsive (and appropriately so) to those matters that had arisen during the earlier stage of these proceedings. 19When the matter recommenced on site some ten days ago, I asked Ms Pearman, counsel for the applicant, whether any further amendments were sought to the plans and she indicated at that stage that nothing further was sought. 20It is appropriate at this time that I note that the Court customarily deals with development applications on what I have referred to for a number of years as the "amber light" approach - that is instead of merely asking myself, "Is the development capable of approval?" and, if the answer to that is no, refusing it; if the answer to the first question is "no", I then proceed to ask myself the amber light question, that is, "Is the proposal capable of approval with changes that I can require be made to it with the resulting development still falling within the reasonable scope of the application before the Court?" If that question is answered in the affirmative, the amber light turns to green, the changes are imposed and a development consent is granted. 21It is appropriate, in that context, to note two matters with respect to the proposed without prejudice conditions in these proceedings. Consistent with the longstanding practice requirements of the Court, the Council provided a draft set of without prejudice conditions of consent which were subsequently amended and became exhibit 28. Those conditions are ones not that the Council proffers as a desirable basis for approval of the proposal, but are conditions proffered on the basis that, if contrary to the Council's opposition to the proposal, I were minded to grant consent, those are the conditions upon which the Council says consent should be granted. 22In response, at the finality of the hearing (for reasons with respect to timing that I do not suggest were with fault from the applicant) the applicant provided its final revised, amended draft without prejudice conditions of consent in reply. There are two problems with the conditions of consent that are currently before me, one is a major one and arises from the Council's amended draft without prejudice conditions of consent. 23There had, in the original version, been a proposal for a deferred commencement condition, that was deleted. The conditions then refer in what would now be condition 1 to stamped plans being the original development application plans, they are not the plans that are currently before the Court for approval. 24There is no iteration of the plans that are currently before the Court and there is reference in condition 1 to the now deleted part A of those conditions. That is a matter that is capable of rectification - but at the present stage, it is not possible for me to grant consent subject to the conditions that are provided by the Council. However, that is amenable to an amber light approach. 25Second, one of the matters to which I will refer in detail later in the proceedings, relates to the question of access across the drainage swales to the burial plot areas. A proposal is now sought to be dealt with by the applicant's proposed condition 110A (permitted to be relied upon by me despite objection from the Council). This condition proposes there be elevated footway crossings across the swale. The elevated footway crossings are proposed to be at intervals of no less than 40 metres, that would mean there could be one footway crossing within the whole of the development site and comply with that condition. I am sure that the applicant intended to say no more than 40 metres spacing and that too is a matter that could have been dealt with by the amber light approach. It is, might I say at this point, however, an indication of the what can only be described as inadequacy of preparation of the applicant's case in these proceedings. 26The applicant is required, of necessity, to rely on its professional advisors both in the what might be described as development disciplines of town planning, drainage and the like (a number of which are matters of detail to which I will refer). It is also entitled to rely on the expertise of its legal advisors to have regard to the totality of the matters that need to be put before the Court and where there are either inadequacies in (or contradictions between) the opinions expressed by the professional advisors, to assist the applicant to resolve those matters if they are capable of resolution prior to the matter being presented to the Court. 27In 1999, the Nobel Laureate in Economics, Amartya Sen said, "It would be silly to build an ambitious structure on the foundations of quicksand". 28What I am required to do, in these proceedings, is to consider whether that which is proposed by the applicant is built on a foundation of quicksand or not. 29Part of that will necessitate my consideration of a decision given by Dixon C in Itaoui v Liverpool City Council [2013] NSWLEC 1003 in which she upheld an appeal against the refusal of development consent for the proposed cemetery at 41 Greendale Road. Her decision in that matter is a matter to which I will need to refer on a number of occasions later in this decision. 30The relevant environmental planning instrument is the Liverpool Local Environmental Plan 2008. It is a plan pursuant to which the site is zoned RU1 Primary Production, a zone that has a total of seven zone objectives, a number of which are relevant and several of which, quite clearly, are not relevant. The zone objectives are:
To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
To encourage diversity in primary industry enterprises and systems appropriate for the area.
To minimise the fragmentation and alienation of resource lands.
To minimise conflict between land uses within this zone and land uses within adjoining zones.
To ensure that development does not unreasonably increase the demand for public services or public facilities.
To ensure that development does not hinder the development or operation of an airport on Commonwealth land in Badgery's Creek.
To preserve bushland, wildlife corridors and natural habitat. 31It is appropriate to note that cemeteries are a development category permitted with development consent within the zone. 32The primary other matters of the Local Environmental Plan that arise in these proceedings are the matters that are contained in cl 7.8 Flood Planning. Clause 7.8 sets out objectives, they are:
to maintain the existing flood regime and flow conveyance capacity; and
to avoid significant adverse impacts on flood behaviour; and
to limit uses to those compatible with flow conveyance function and flood hazard; and
to minimise the risk to human life and damage to property from flooding. 33Those objectives are in the conjunctive and are thus cumulative. 34The clause then goes on to set out, in sub cll 2 and 2A, restrictions on consideration and granting of development consent to development in flood planning areas and in sub cl 3 to set out what are the matters that must be satisfied prior to the granting of development consent on flood prone land (other than development for the purposes of residential development). 35There is a contest in the proceedings as to whether the lands fall within what might be regarded as a "flood prone" land area or not. The definitions contained in the Local Environmental Plan define a "flood planning area", relevant to sub cll 2 and 2A, as land showed as a "flood planning area" on the flood planning area map that is attached to and forms part of the Local Environmental Plan, a term - that is "flood planning area map" - also being a defined term. 36Flood prone land is land defined as being susceptible to flooding by the largest flood that could conceivably occur at a particular location estimated from the probable maximum precipitation, that is known generally as the PMF. "Flood prone land" is not a defined term. 37Exhibit V comprised extracts from the flood planning area map, mapping that shows those areas that are expressly called up as flood planning areas but also shows areas outside those flood planning areas that are additionally mapped as being flood prone - however, that "flood prone" land mapping is not given any statutory effect by the environmental planning instrument itself. 38There has been some considerable argument as to whether that means that the area of the Bardwell Creek corridor that flows through the site should be regarded as being flood prone for the purposes of the LEP's consideration - that is, is it called up in the relevant portions of the Local Environmental Plan as well as those parts of the Development Control Plan that relate to flooding (both in general and in specific terms). 39I have had the advantage of evidence from Dr Martens, the flooding expert for the applicant, and Mr Caldwell, the flooding expert for the Council. They agreed, on my understanding of their evidence, that the overland water flows across the site primarily from north, west and south to the east needed to be dealt with, however they were to be categorised. 40It is clear from Figure 10 in the supplementary flooding report which became exhibit M (dated April 2013) provided by Dr Martens that there is a significant water volume across the site shown to exist through the TUFLOW modelling results for PMF flood heights on the site as at present. This reinforces the view that the distribution of and impact on overland water flows on the site require to be dealt with. 41Although, to some extent, the formal descriptor of the water flow requirements that need to be dealt with and the status of the land is unnecessary, it is clear to me, from Dr Martens' Figure to which I have referred, that the land satisfies the definition of "flood prone" land that is contained in the LEP despite the fact that the Council's mapping (mapping mandated with respect to flood planning areas and discretionary as to mapping for flood prone areas) is nonetheless relevant and appropriate to be adopted. 42The consequence of that is that the matters that are called up by the Local Environmental Plan as requiring to be satisfied in cl 7.8(3) need to be addressed and satisfied in these proceedings. 43It is also appropriate to note that there are provisions in the Liverpool Development Control Plan 2008 Part 5 Development in Rural and E3 zones contained in cl 9.13 that relates specifically to cemeteries, crematoriums and funeral chapels. These relevant zones include the zone of the site. 44The Court of Appeal, in Zhang v Canterbury City Council [2001] NSWCA 167, has dealt with the appropriate basis for consideration of a development control plan in determining whether or not to grant development consent. From what was said by the (then) Chief Justice, at para 75, three propositions emerge in my view. First, although I have a wide ranging discretion, it is not at large and it is not unfettered. 45Second, the provisions of the Development Control Plan are to be considered as a fundamental element in or a focal point to my decision making process and that that is particularly relevant if there are no issues relating to compliance with the Local Environmental Plan. 46I indicate, at this stage, however, that it is the Council's position that there are significant noncompliances with the Local Environmental Plan's cl 7.8 and they are matters to which I require to turn my attention at a later point in this decision. 47Third, a provision of the DCP that is directly pertinent to the application is entitled to significant weight but is not in itself determinative. 48Contra all of that, however, I am permitted, if I am satisfied - despite the provisions of the Development Control Plan - that a development should be granted approval provided, I can be satisfied that there are circumstances that warrant setting aside those requirements. 49It is certainly not open to me (as was made clear by the Court of Appeal's decision in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338) to indicate that I consider that a provision of the Development Control Plan is wrong. The matters that are contained in 9.13 of the DCP are set out in full below: 9.13 Cemeteries, Crematoriums and Funeral chapels 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 maybe 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 15ha available for burial plots and memorial walls. Landscaped areas, setbacks, parking, driveways and turning areas, internal congregation areas, places of public worship, and areas where ground water is within 3m of the surface will not be counted toward the minimum 15ha 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 6m. 3. Burial plots must not be located in areas where the water table is within 3m of the ground surface. If the water table is between 3m and 5m of the ground surface, deep rooted planting will be required in affected areas. 4. Cemeteries should not be located on flood prone land. Setbacks 1. Buildings and burial plots are to be sited at least 20m from a public street and at least 15m from any side or rear boundary. Landscaping and Fencing 1. A berm is to be provided around the property and must be 1m high and 3m wide. Landscaping is to be provided over the top of the berm. 2. A landscaped buffer zone at least 10 metres 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. 3. 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 1. 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 slip lane is required to enter the site. Operation 1. A Plan of Management must be submitted with a Development Application and must include details of the operation of the use. 2. In the case of perpetual burials, the Plan of Management needs to outline how the perpetual care would occur. 50I earlier referred to the necessity to go through and consider the provisions that are contained in the Development Control Plan. One matter that was quite significantly in contest is that contained under point 1 Site Suitability which reads as follows: Cemeteries and crematoria must locate on a site with a minimum of fifteen hectares available for burial plots and memorial walls. Landscaped areas, set backs, parking, driveways and turning areas, internal congregation areas, places of public worship and areas where groundwater is within three metres of the surface will not be counted towards the minimum fifteen hectare site area. 51There is a note to this provision that reads as follows: 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. 52It is in that context that the area of this site, which is a little over 10 hectares, requires to be addressed. 53It requires to be addressed in the context of Dixon C's decision in Itaoui where she agreed, at para 28, that the DCP should be given significant weight because it had been the subject of community consultation and reflected the community's expectations. 54There was, as I read her decision, no extensive consideration of the basis upon which the minimum site area was adopted - it was merely discussed briefly at paras 24 and 25 in summarising the submissions of the parties on this point. 55Because of the criticality of that provision, I indicated that it was appropriate that I have evidence concerning the development of the provision of the Development Control Plan (which provision was an amendment to the provisions that originally went on display). I indicated that early on in the proceedings and I heard evidence, as a result, from Mr Michael Warrell on 5 February. 56Mr Warrell was, at the time of the original development of the provision in the Development Control Plan, a strategic planner employed by the respondent Council although he has now moved to a nearby council. I have been provided with an informal transcript of his evidence, an informal transcript which became exhibit N in the proceedings. No objection was taken by the Council to the accuracy of this transcript. 57In response to questions from me, Mr Warrell dealt with the discussions that he had had with a Mr Filicomo (from the relevant state authority managing Crown lands upon which cemeteries are located). Mr Warrell expressed the view (consistent with that contained in his affidavit) that the fifteen hectare availability criterion was consistent with that contemplated for Crown land cemetery areas. It was quite clear from his evidence that, if one were to provide sufficient land area for the various matters that are excluded by the site suitability criterion, it is likely that a minimum area of some 20 hectares would be required. 58It was also Mr Warrell's evidence that, although he was aware of the existence of a number of applications before the Council for cemeteries in the rural zones, he was not aware of and did not have regard to the particulars of any application. He said "I knew there were a handful of applications and that's the extent of it." 59Contrary to that, the oral evidence of Mr Cikar on behalf of the Association was that he was not notified of the consultation process for the Development Control Plan, there was no notification of any intention to impose such a minimum allotment size and that, had he had that opportunity, he would have objected to it. A similar position appears to have obtained in the Itaoui application (as is clear from [25] of that decision). 60In this case, the site area is 10.12 hectares and of that site area, after undertaking all of the exclusions, some 1.3 hectares will be available for burials. 61I have carefully considered whether I should regard the site suitability criterion as a basis for refusal in itself. I am satisfied, consistent with the approach taken by Dixon C in the Itaoui case and consistent with the position that was taken by the Court of Appeal in Segal v Waverley Council [2005] NSWCA 310, that I should approach the matter in a manner consistent with my colleague's decision - there being no substantive reasons why I should depart from her approach. Her approach was to undertake a full merit assessment of the proposal and not regard the site area requirement as being determinative - despite the fact that, at approximately 10 hectares, the site is roughly half that which would be needed to satisfy the site suitability criterion to which I have referred (even if the totality of the site were to be available for development for the purposes of a cemetery). 62There are a number of matters that arise out of the Development Control Plan that require to be considered. Some of them go to matters that are pressed by Mr Baird, the solicitor for the Council, as being inadequacies in information and others which he says, in themselves (even if the information were adequate) would not satisfy the provisions of the Development Control Plan or, in some instances, the provisions of the clause in the Local Environmental Plan. 63Rather than doing as he has done in his submissions, that is deal with the informational inadequacies and then turn as a separate and subsequent topic to the question of compliance with the Development Control Plan, it seems to me to be a useful course to follow to deal with both aspects under each topic of consideration as I do so and reach a conclusion in that regard. 64The first matter that I turn to is the question of landscaping. It is clear from the landscaping plan (that is, currently, the one for which development consent is sought) that there are a number of curious and inconsistent features between the landscaping plan and the information from other parts of the applicant's own expert advisors' reports that are necessary to inform the preparation of the landscaping. 65The landscaping, given the constrained nature of the site, is of critical importance - particularly with respect to the residences to the east and the west of the site. 66The landscaping plan, as presently proposed, has discontinuous landscaping along the western, northern and southeastern boundaries. The central portion of the eastern boundary abuts the area of Cumberland Plain Woodland (which is intended to be rehabilitated and maintained as an ecological community). I set this aside (save to the extent that it arises concerning bushfire access) as the question of the endangered ecological community is only relevant as there are restrictions arising from that status as to what could be undertaken in its vicinity. 67However, it is quite clear that significant view corridors are, on the landscaping plan, proposed to be retained from the residences to the west into the site (including viewing across at least one of the major burial areas to the north and to one of the minor burial areas immediately to the south of the dam located along the western boundary of the property). 68In response to questions in the witness box, Mr Frew, the applicant's landscape expert, said continuous planting would be possible along any boundary were it to be required, that the mounding which is noted for relevant sectional or cross-sectional locations was unnecessary and had been proposed simply in order to provide what I might describe as a early boost to the height of the landscaping and that, as noted on the landscaping plan, such mounding was in any event to be subject to any requirements that Dr Martens might have for the management of overland flow paths. I proceed on the basis that if I were to conclude that the application were able to be approved, an amber light approach would require that there be no mounding to the landscaping. 69It is appropriate, at this time, to note that that is quite expressly contrary to the requirements of the first provision under landscaping and fencing contained in the Development Control Plan which envisages that a berm (that is a mound) is to be provided around the property - 1 metre high and 3 metres wide - with landscaping to be provided on top of it. 70For parts of the north and west of the site, the provision of such a berm would be a significant inhibition to proper overland water management flow. I accept that there may be a reasoned argument not to comply with that provision of the Development Control Plan (although in doing so it has an impact on the efficacy in the short term of the landscaping at those areas). 71There is, as I understood Dr Martens' evidence, no reason why, along the south-eastern boundary in the immediate vicinity of the residents to the east, such a berm could not have been provided. The only constraints on doing so in the plans are the location of the one of the six detention basins provided for the site and the location of the effluent irrigation field. The locations of both of those are as a consequence of the size of the Stage 2 burial area located immediately adjacent to the west and are not as a result of any constraints on the land itself to accommodate such a berm and landscaping. 72That, in my view, is a significant area of non-compliance with the Development Control Plan and, whilst in itself not providing a reason to refuse the application, certainly is a significant matter to be considered in that context. 73Mr Frew also indicated, during the course of his oral evidence, that there was no reason why there could not be continuous planting along the relevant portions of the eastern, northern and western boundaries. He said, confidently, (but without expressing a basis for it) that there would be no bushfire problem in doing so. 74He suggested that, in any event, layered landscaping (such as that which is envisaged in the south-eastern corner) could be provided. 75There are two matters that are of concern that arise in that regard. First, on his own landscape plan, under the heading Bushfire Management, it says, "The entire site shall be treated as an inner protection zone and that that requires [inter alia] that there be shrubs and trees which do not form continuous canopies." There is a condition, in the conditions of consent accepted by the applicant on the basis of that which is contained in exhibit X as being an appropriate condition, that requires that the whole of the site be managed as an inner asset protection zone. That is not compatible with continuous landscaping. 76Second, in the vicinity of the residence in the east, there are a number of view corridors from that site into the proposed cemetery from locations in the vicinity of the house and in the garden (which the evidence from the owners of the site is regularly used for garden and landscape maintenance purposes). 77Even if continuous landscaping were appropriate to be considered, a basis upon which I am not satisfied that it could be, there is potentially some difficulty in doing so at the far south-eastern corner of the site in the vicinity of the effluent disposal area, a position that is made clear in the provisions of exhibit U which is the effluent disposal plan prepared by Dr Martens. At 5.8.3, this plan makes it clear that vegetation within the effluent reuse area is to be maintained in a fashion that will maximise the uptake of both nutrients and water. The plan proposes that grassed areas should be maintained with a blade length of no more than 75 millimetres and trees and small shrubs should be regularly pruned (I note that there is no requirement in the conditions of consent for this to occur). 78The site plan showing the available effluent disposal area (forming part of exhibit U) makes it clear that there is a distance of 6 metres between the effluent disposal area and the boundary (one that is not compliant with the requirement for the landscape buffer area contained in the second of the provisions relating to landscaping in the Development Control Plan). As a consequence, any landscaping in that area will have to be pruned. Such pruning, in order to promote what Dr Martens described as vigorous growth, necessarily, on my understanding of it, would not permit continuous screening to be available in that area if required. 79Issues of fencing also arise and I will turn to them shortly. However, it is appropriate to note that the 2012 Planning for Bushfire Protection Pty Limited certificate endorses that the landscaping should incorporate the requirements of Appendix 5 for Planning for Bushfire Protection and the standard for asset protection zones (which is for a discontinuous canopy). 80The Bushfire certificate that was given on 27 February with respect to the revised plans incorporates a similar requirement for the maintenance of asset protection zones and compliance with Appendix 5 of Planning for Bushfire Protection. It includes the comment that the author, Mr Coffey, had received a copy of the revised plans for the proposed development which includes a landscape plan; a bushfire management plan detailing asset protection zone requirements; property maintenance guidelines; and a vegetation management plan. 81There was in that context, although post dating Mr Coffey's certificate, a revised flora and fauna protection report dated 4 March from Mr Bruce included requirements for boundary fencing and for the planting of screening shrubs within that boundary fencing which he described as needing to be a rabbit proof fence, a matter to which I will return shortly. 82The original bushfire protection assessment undertaken by Mr Coffey (it being a document dated November 2009), included a number of recommendations, setting out the requirements for asset protection zones and including that a number of minimum distances for asset protection zone establishment; a series of minimum distances that appear to have been overtaken by the requirement that the totality of the site should be regarded as an inner asset protection zone and thus requiring the nonestablishment of any continuous vegetation canopies. 83The original bushfire management plan authored by Mr Bruce and dated 22 July 2009 also required that garden beds be discontinuous and contain suitable endemic soft leaved plants. 84It is clear that with respect to that, there are garden beds in the north-eastern corner of the site that are proposed presently to be discontinuous and there are garden beds in the vicinity of the north-eastern corner of the dam on the western boundary of the property that are proposed to be discontinuous in the vicinity of the amenity structure proposed at that location. That is consistent with what is required in the bushfire management plan. 85Both of those areas of discontinuity are, however, inconsistent with effective visual screening from adjoining properties. 86In his original proposal, Mr Bruce proposed that there be an access road between what he described as Zone 4 in the southern section of the allotment, that being in general terms the Bardwell Creek corridor and the vegetation area for the Cumberland - zone 1 being the Bardwell Creek corridor. This gave rise to the need for an access road into the Cumberland Plain woodland rehabilitation area. That road does not appear on any current plan. 87It would seem to me that that, however, is a minor point given the fact that Mr Coffey has subsequently endorsed plans as being appropriate for bushfire purposes that do not include that matter. It is, however, a matter not expressly dealt within and is an example of an inconsistency. 88In the context of the flora and fauna management of the site, the question of fencing has arisen. It arises, in part, because of the concerns expressed by Mr Caldwell (in the joint flooding evidence) that the fencing proposed (of a rabbit proof fence around the boundary of the site) was entirely inappropriate in the terms of its impact on flooding. 89Such a fence was required as being necessary in Mr Bruce's revised flora and fauna report of March 2013 where at p 10, at .15 he says, "rabbit proof fencing shall be erected around the boundary of the allotment." 90That position is one which has been adopted in general terms in a somewhat but not completely consistent fashion since the beginning of these proposals. In his original report of July 2009, he proposed, as I read it, fencing of three identified zones (being the burial zones) with rabbit proof fencing, but that there should also be rabbit proof fencing around the entirety of the site. 91It was Dr Martens' oral evidence for the applicant, that rabbit proof fencing cannot and should not be designed to withstand flood pressure. 92That such fencing would, if erected, be one which would have the effect (before it failed) of backing up flood waters some 100 to 200 millimetres deeper to the west of each fence that would be erected across the Bardwell Creek flood plain. 93Whilst that might have little to no effect on flooding within the site (for such backing up occasioning from the eastern boundary), at the western boundary, the rabbit proof fencing would be in close proximity to the driveway to Mr Truong's house and would have a potentially significant impact on the access to that property. 94More fundamentally, however, it was Dr Martens' evidence that rabbit proof fencing should not be built across watercourses such as Bardwell Creek and that it was totally inappropriate to do so. 95I note, in this context, that the applicant proposes a condition of consent containing options which were described to me as being ones between which I should choose. Whether I choose to answer multiple choice questions or not such as not the terms of that which is proposed in the applicant's own conditions document. Proposed condition 55, in lieu of the rabbit proof fencing recommended in the earlier vegetation management plan, proposes an election by the applicant as to what form of rabbit control should be undertaken on the site - with that rabbit control being entirely at the discretion of the applicant. Both of the methods of rabbit control that are contained in that condition rely on matters such as a pindone baiting regime, warren/burrow fumigation, and techniques contained on the Department of Primary Industries website for vegetation protection - all matters about which I have no evidence whatsoever as to their appropriateness. 96It is quite clear to me that, for the various reasons set out in the vegetation management report, it is necessary for the protection of the grave sites (if for no other reason) to have rabbits excluded from the burial areas. There are also, although it is less clear, likely to be substantial reasons why they should be excluded from revegetation areas (at least during the early times of establishment of the vegetation) with a similar position applying to the landscaping areas. 97I have no basis upon which I can be satisfied that that condition is an appropriate replacement for that which has been emphatically proposed in the past by the vegetation management plans and reports. 98I now turn to the question of hydrological modelling and the question of flood flows on the site. 99Before doing so, I note that, in the final version of conditions proposed by the applicant, there is a condition concerning fencing standards which (if there were to be a satisfactory basis upon which a fencing condition for rabbit exclusion could be provided) would appear might provide appropriate technical standards for that. That is a condition contained in condition 92. That, however, does not resolve the underlaying conflict between the information consistently supplied by the applicant's other experts and the position that is now advocated as being incapable of adoption in light of Dr Martens' evidence. 100Dr Martens and Mr Caldwell gave oral evidence - including giving some evidence during the course of site discussions. The evidence was based on a number of fundamental conflicts between Dr Martens' position and Mr Caldwell's position. 101I turn, first, to the position that arises with respect to the downstream and upstream broad flood impacts. It is the single area where it is appropriate, in my view, to comment on the manner in which the evidence unfolded rather than simply the outcome of the evidence. 102Dr Martens has provided, in Figure 16 which was attached to the joint flooding expert report (which was exhibit 25), a TUFLOW model result that showed the change in flood depth between existing and proposed site conditions for the one in a hundred year flood event and allowing for 30% increase in rainfall intensity as a consequence of climate change. That modelling shows no significant alteration to flooding to the west and indeed shows some minor ameliorative changes in the vicinity of the dam on the western boundary. It shows no adverse impact downstream. 103Mr Caldwell indicated his disagreement with these calculations. He said he did so on the basis of an analysis undertaken by a modeller in his office and his consideration of the numerical results that arose there from. That analysis and those results were not disclosed to Dr Martens and were not available to me. That is contrary to the requirement set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 that the facts and assumptions upon which expert evidence is based should be completely disclosed in order to establish the validity of the conclusions reached there from. That is clearly set out in the Expert Witness Code of Conduct and the requirements of the Uniform Civil Procedure Rules 2005 concerning expert evidence. Mr Caldwell did not do so and I decline therefore to accept his evidence on that point - my conclusion being confined to that point. 104I therefore accept that it is appropriate to conclude, on Dr Martens' modellings, that there will be no adverse off site impacts of the post development state of the site if the development were to be approved. 105However it is appropriate to turn to some quite fundamental differences between Dr Martens and Mr Caldwell concerning the nature of the flood works that should be undertaken on the site. This, as I have earlier indicated, has been a significantly moveable position over the last six months or so. 106The fundamental difference that arises between Dr Martens and Mr Caldwell is whether or not the overland water flows should be dealt with by a "pit and pipe" solution or whether they should be dealt with by a series of major trunk swales and a larger series of minor swales picking up localised water coupled with a series of some six detention ponds to be located on site. 107It was during the consideration of this difference in opinion that it became clear to me that, amongst other things, Mr Caldwell misunderstood the nature of the requirements in the Development Control Plan and that he had been relying on provisions in the Development Control Plan, at least in part, that related to drainage that would occur if the site drained to the Council's main trunk drainage scheme - a position that is clearly not the case on a proper consideration of the Development Control Plan. 108Having said that, it is still desirable that I consider whether I am satisfied that the system proposed by Dr Martens is appropriate or not. The fundamental answer to that, there being nothing in the Development Control Plan relating to flooding that would mandate a pit and pipe system, is quite simply put without going through the necessity for a detailed analysis of all of the technical arguments between them having accepted, as I do for the reasons I have recently enunciated, that there are no adverse off site impacts of the scheme proposed by Dr Martens - that is there being, what one might conventionally call, in a pollution sense, no end of pipe problems, then that which is used to derive that result is not a matter, in flooding terms, that requires any further consideration by me. 109There are other matters arising out of the swale design proposal of Dr Martens that do require further consideration but its adequacy as a method of water management, in my view, accepting as I do, Dr Martens' Figure 16 (reproduced below) there is no need to go into those matters. 110There is equally no need to go into the question of whether the size, width, batter and the like of the swales in a flood water management sense requires to be changed as Mr Caldwell has proposed because I have accepted that the design advanced by Dr Martens is appropriate for that purpose. 111It seems to me, in that regard, that condition 113A of the applicant's amended draft without prejudice conditions appears to deal with that matter adequately (although I note that the plans that have been produced by Dr Martens do not form part of the application that is currently before me - despite the invitation to the applicant to deal with those matters of possible amendments to plans). 112I specifically, therefore, say that it is unnecessary for me to reach a decision about the conflicting positions set out in exhibit Y by Dr Martens and Mr Caldwell in which Mr Caldwell advocated changes to batters and volumes and the like, given that I accept that exhibit. That Figure 16 demonstrates the overall acceptability of the process advocated by Dr Martens. 113There was, however, a separate and distinct difference between them concerning the design of the detention ponds with Dr Martens advocating a wetland based solution that would use macrophytes and the like to fix nutrients and Mr Caldwell advocating a dry bed with a remediation and detention basin configuration. Again, on the evidence, I am satisfied that either of them is capable of being effective and that particularly, it seemed to me, that Mr Caldwell had misunderstood the nature of the inlet screen that was provided in Dr Martens' design which extended well beyond the immediacy of the inlet. It seems to me that either of the solutions would potentially be satisfactory and that, as a result, it is not necessary for me to express the opinion that Mr Caldwell's solution is to be preferred over Dr Martens as the applicant, itself, seeks to rely on Dr Martens' design and I am satisfied that that design is satisfactory. 114Mr Caldwell also raised the question of safety in the vicinity of the swales. It is in this area that the applicant's proposed condition about swale bridges at intervals of not less than forty metres is to be considered. As I noted earlier, this would need to be corrected if the applicant were to be granted a development consent. In the exhibits, I had, at exhibit P, photographs of what were proposed to be the swale crossing structures in a typological sense. They are based on swale crossings that exist at the present time at St Ives Showground in Sydney's north. 115The question of safety and the like is called up by cl 1(d) of the objectives in the Local Environmental Plan to minimise the risk to human life and damage to property from flooding. It is clear, from exhibit 25, where Mr Caldwell and Dr Martens set out a number of cross-sections of the drainage swales that - even at any corrected inferred spacing - there would be a need for a series of wooden crossings of the nature contained in either Figure 3A or Figure 3B of exhibit 25 for access to the burial areas. How, I ask myself when I consider this, are those crossings to work if there is to be rabbit proof fencing around the burial areas? I have no information on that point. 116Second, the proposed crossings as shown by Dr Martens would have to be at least (at the one location for which I have a relevant crosssection contained in the diagrams which is in the vicinity of Stages 1 and 2 on the southern side of Bardwell Creek at crosssection 8 in exhibit 25 - which shows on Dr Martens' layout of the swales - a layout which I have accepted is appropriate) any crossing from the roadway to the eastern of the burial plot areas proposed at Stage 2 would have to be at a slope from an RL of a little over 80.6 to an RL of a little over 79.8, that is a difference of some 800 millimetres over a distance of some nineteen metres. 117Whilst that might not be a difficult slope and, whilst that not be in conflict with the requirements for access for those with mobility difficulties, I have no information on that point. I have no crosssectional information about the appropriateness of having such crossings as necessary the other locations, it is not allowed for in the plans. I do not know where they would be or whether they would work. The swale height (absent such crossings) is 600 millimetres over a distance of some three or four metres, something that might in times of rainfall or even in ordinary times provide difficulties for those visiting the site. Whilst not in itself determinative, it is an indication of a defect. 118Mr Caldwell suggested that requiring movements across those swales would present a hazard even at times of minimal rainfall and certainly at times of one in a hundred year rainfall events or PMF rainfall events. He relied for that reason on the Australian Rainfall and Runoff Revision Project Ten which is a current revision of a guide. He was, in that regard, subject of significant disagreement with Dr Martens. 119Table 5 in that document (which was reproduced in attachment to the joint expert report) shows that, for any combined volume and flow rate greater than zero, there is an extreme hazard to infants, small children and frail older persons. Dr Martens correctly pointed out that that would mean that, at a minimum surface flow across an otherwise conventional backyard at times of such rainfall, it would be regarded as an extreme hazard. He put that that was, as I understood him, what I would describe as a logical absurdity. I accept that proposition. 120I am not prepared to conclude that, for hazard reasons, it is necessary to have the swale crossings as discussed. I am, however, prepared to conclude that such swale crossings are necessary for reasons of proper amenity for those persons seeking to access the site of the burial plots - that being a reason that Dr Martens indicated, as I understood his evidence, that such crossings were provided to swales at the St Ives Showground (he evidencing that they were used by people with walking frames, wheelchairs, the elderly and the like). 121It is possible (but I am not confident) that it is appropriate that a modification to the proffered condition requiring the provision of a plan to the Council to the Council's satisfaction as to the location and design of such swale crossings could be acceptable. 122It is however, in its present form, a matter not determinative but not weighing in favour on the applicant to the proceedings. 123I now turn to the question of access to the property. Mr Shiels gave evidence, during the first site inspection, of concerns that he had about access to the property and the potential impact of that access on the landscaping that is proposed for the property. 124Although Mr Shiels is jointly qualified, in general terms, as a town planner and as a traffic expert, in these proceedings he was not giving evidence as a traffic expert. The matters that he raised about access to the site are matters that he raised in a town planning capacity and have been considered by me in that context (and not in any traffic expert context - there being no oral traffic expert evidence in these proceedings). That is quite clearly to be seen in distinction to the position in Itaoui where Dixon C notes, at para 37, that Mr Shiels gave expert traffic assessment evidence on that occasion. In this case, the evidence relates solely to the planning issues that arise with respect to the landscaping and is not in the context of a traffic management position. 125It is my view that condition 136 of the proposed conditions of consent - providing that a design for the access point should be considered by the Liverpool Traffic Committee of a purely technical nature that the prescriptions contained in the conditions for the design of the access way - are sufficiently specific. These do not give any rise to concerns about uncertainty and the like in a Mison v Randwick Municipal Council (1991) 23 NSWLR 734 sense. However, it should be noted that, in the March 2013 traffic and parking impact assessment which is revised, that those consultants - Hemanote Consultants - proposed, on p 44, that a road widening of three metres is required on Greendale Road to accommodate a right turn for westbound traffic into the site. That position is entirely consistent with the identical position advocated in the Hemanote Consultants report dated August 2010 that formed part of the application documents. 126Whilst it is appropriate to refer the design of such a treatment to the Traffic Committee, I have no information as to what that would mean for impact on the landscaping of the site. It is essential, for screening from Greendale Road, that there be landscaping appropriately to provide at least dispersed landscaping. I accept, in this context, that limited view corridors from Greendale Road into a cemetery would not be unacceptable despite the requirements of the provisions of the Development Control Plan for an unbroken berm and landscaping around the boundaries of the site. 127However, I do not know and have no way of knowing what might be the impact of a three metre widening of Greendale Road along on the landscaping that would be proposed along that boundary. The depth of landscaping that is set out on the landscape plan makes it clear that there is some possibility that such a road widening might be able to be accommodated. However, the matter has clearly been a matter of concern on notice to the applicant since at least the Amended Statement of Facts and Contentions, if not earlier from Mr Shiels expressions of concern on site and potentially since the 2010 Traffic Report. The issues that would have arisen in that context would have arisen at least in respect of the second of the landscape plans to which I earlier referred as having been approved to be relied upon as amended plans in October 2012. It is clear to me, in that regard, that the potential for landscaping impact was set out in exhibit 13, the joint report of the town planners where, on p 7, Mr Shiels noted that the widening of the road could reduce the potential for landscaping across along Greendale Road. 128Finally, it is appropriate that I deal with matters that are otherwise raised but in my view do not provide a basis for significant concern. 129The first, although there is no reason for it and it is yet another instance of the failure of the applicant or those representing the applicant to sit down and try and assemble the full mosaic of matters requiring consideration, the vegetation management plan dated 4 March 2013 at 17 sets out a condition proposed in the following terms: Planting of a shrub screen around the boundary and within the rabbit proof exclusion fence consisting of the following species, Bursaria spinosa [which I note is provided for in the present landscaping plan] and Clerodendrum thonentosum [a plant that is one that is a shrub or tree reaching up to ten metres in height which is not proposed anywhere on the landscape plan in the lists of species]. 130Now, I am not suggesting, by raising that matter, that that is a matter of any determinative weight whatsoever. It is still, however, yet another indicator of the failure of those assisting the applicant in these proceedings to reconcile the differences between the various pieces of expert evidence that are provided. 131The final matter to which I need to turn before dealing with uncontroversial matters, I hope, is the question of proliferation. Although this arises in the context of the note that is contained to the first criterion in the site suitability provisions under 9(13) of the Development Control Plan, it is a matter that was separately pressed, at least as I understood it, not only on the basis of that note but on general amenity bases on behalf of the Council. 132Firstly I note that Dixon C dealt with the question of proliferation in her decision on Itaoui (at para 40) where she said amongst other things, "that this will not result," and I paraphrase, "in the proliferation of cemeteries on smaller lots because it is the first cemetery in the locality." Then she said: Each subsequent application must be assessed on its merits under s 79C of the Act at the time of determination, and approval of this cemetery is not to be regarded, to summarise, as a precedent for any other cemetery in the immediate locality. 133There do not seem to me to be any issues of Segal arising in this context. 134Exhibit 26 is a map that shows the three other approved cemeteries on Greendale Road. Two of them, at 992 Greendale Road, and 321 Greendale Road, are some considerable distance to the west from the present proposal and do not, in my view, fall sufficiently within what might be regarded as the locality of the present proposal to give rise to any concerns about proliferation whatsoever. 135A different position arises with respect to 41 Greendale Road. 41 Greendale Road is separated by four similar sized allotments from the present site. To the extent that proliferation is raised as an issue, proliferation can only be considered in my view in two quite limited contexts. First, whether the increase in number will have any common impact on neighbours to more than one site and, second, whether there would be any visual impact that was unacceptable from Greendale Road as a consequence of approving more than one cemetery in the locality. 136The neighbour impacts which I have described earlier are primarily those of visual impact. They are confined to impacts that arise from the particular proposal and do not accumulate from the approval at 41 Greendale. Whilst there may be some increased psychological impact, I do not consider that that is a matter appropriate to have regard. Similarly, having regard to the proposed landscaping on Greendale Road, if it were able to be established in the fashion that is proposed (a matter about which I do not have sufficient knowledge as a consequence of the matters discussed earlier about road widening) - does not cause me concern about proliferation in this vicinity. 137There are then a number of matters to which I should turn in case I am wrong in my overall conclusion about the unacceptability of the proposal, both for inadequacy of information reasons and the incapability of the proposal to provide adequate landscape screening to the neighbouring properties to the east and the west as a consequence of the necessity for compliance with the bushfire requirements (a matter of conflict that may have been resolvable had those matters of conflict been considered by those advising the applicant - a matter about which it is not appropriate for me to speculate). 138I turn to the question of the operative hours of the proposal. A plan of management, in exhibit F, makes it clear that the applicant, if it had been granted a development consent, would have proposed funerals between the hours of 1pm and sunset in summer (defined as 8pm) and in winter (at 5pm). The Council contended for earlier closing hours. I am satisfied, given the extremely limited number of burials that are proposed - a maximum of two on any one day - that it would be appropriate to permit those hours. 139The Development Control Plan also calls up, again by the virtue of the note, the question of the long-term financial viability of such an operation. Exhibit G - a statement of evidence from Mr Kandemir (who in his curriculum vitae makes it clear that he has appropriate accounting and management experience) attached a set of financial projections. Those financial projections are not contested by the Council and I am satisfied they demonstrate that in the longterm basis the proposal was viable. 140Finally, I turn to two matters that were the subject of uncontested expert evidence from Dr Martens. One related to the appropriateness of the extent of fill on the site. It was his evidence that there was no difficulty in undertaking the fill to the extent that it is proposed. I am satisfied, on the basis of that evidence, that that does not stand as an impediment to the approval of the application. 141More problematic is the question of bore approvals in the vicinity. I am not prepared to assume (no matter what might be said by the applicants for the particular bores) these are not associated with the desire to defeat this application in reliance on World Health Organisation guidelines. These bore applications were applied for in the very recent past by the properties to the east and to the north and an application by the property to the west to resuscitate the dormant bore located on that site. The dormant bore, although approved to be resuscitated, has not been so resuscitated. 142Dr Martens' evidence is that the proposal, if approved, would not have any impact on those bores - that being consistent with his opinions expressed in a written statement of evidence on that point. I accept that evidence. However, because of the World Health Organisation guidelines proposing that there not be bores within 250 metres of a burial site, I also express the view that, as those bores have not been sunk had I been prepared to grant a development consent to this proposal in these proceedings I would not have had regard to those bore approvals. It seems to me that they had been sought and obtained solely for the purposes, it is reasonable to infer, of seeking to defeat this proposal and I would therefore not have any regard to them. It is, however, not necessary in my view to deal with them on that basis. 143Overall, I have therefore concluded that, for the reasons I have set out earlier, there is a serious deficiency in or conflicts between the expert advice that has been tendered in these proceedings relating to landscaping, bushfire, fencing, road widening and the like which cumulatively do not leave me in a position to apply the amber light turning to green to this proposal. 144Second, I am satisfied that, on the basis of a proper consideration of the necessity for landscaping as provided for in the Development Control Plan, the noncompliance with the proposed continuous visual buffering around the boundary is unacceptable. For both of those reasons it is appropriate to refuse this application. 145I do not express, in doing so, any opinion as to whether this site would be capable of approval for any cemetery or not, that is a matter (if it ever arises) for the facts and circumstances of such other application as might be made. 146It is, however, completely clear to me that a cemetery of the size and scale of that which is proposed in these proceedings (even if all the evidentiary conflicts and inadequacies were able to be resolved) is incapable of approval because of the unacceptable impact on the neighbouring properties because of the inability to provide appropriate landscaping consistent with bushfire management provisions. 147I have therefore concluded that the orders of the Court are to be that: (1)The appeal is dismissed; (2)The Development Application for a cemetery at 31 Greendale Road Bringelly is determined by the refusal of development consent; and (3)The exhibits, other than Exhibits 12, 15, 28, T and X, are returned. Tim Moore Senior Commissioner 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: 14 August 2013