Victorian Civil and Administrative Tribunal|2007-11-15

Wooling Hill Garden Estate Pty Ltd v Macedon Ranges SC [2007] VCAT 2226 (15 November 2007)

Planning and Environment; Construction of permit; Permit for Memorial Park; Memorial Park defined to primarily encompass interment of ashes; Permit condition prohibiting use of land for Cemetery or Crematorium; Whether burial of small domestic pets prohibited as falling within meaning of Cemetery; whether cemetery refers only to human burial.

Planning and Environment; Rural Conservation Zone; Planning Permit for Memorial Park; Use of land for burial of small domestic pets an innominate use prohibited under section 3 of the zone; Existing use rights; Whether burial of small domestic pets ancillary to a Memorial Park.

Planning and Environment; Rural Conservation Zone; Planning Permit for Memorial Park; Use of land for burial of small domestic pets an innominate use prohibited under section 3 of the zone; Existing use rights; Whether relief available to amend permit under s.87A Planning and Environment Act 1987, to include pet burial which is prohibited by the zoning provisions.

Wooling Hill Garden Estate Pty Ltd v Macedon Ranges SC [2007] VCAT 2226

Pursuant to the Planning and Environment Act 1987, s. 149A, I declare that the words 'cemetery and crematorium' in the Planning Permit No. P98/0325 issued 30 June 1999, refer to a place for the burial or cremation of human remains and do not mean a place for the burial or burning of animal remains.
The s.87A amendment power cannot be used to add another primary permission for a separate and distinct land use that is now prohibited.
The burial of the bodies of small domestic pets is not an ancillary activity to the interment of human or animal ashes.

Mr Barry Davis, General Manager represented Wooling Hill Garden Estate Pty Ltd

Mr Adrian Salmon, Town Planner of Tomkinson Pty Ltd represented Macedon Ranges Shire Council

Wooling Hill Memorial Park PL ('Wooling Hill') is the only privately owned and operated memorial park in Victoria. The current Cemeteries and Crematoria Act 2003, as did the Cemeteries Act 1958, controls the burial and cremation of human remains. It does not cover the Wooling Hill operation as that is neither a public property nor run by a Cemeteries Trust.
Wooling Hill is on the corner of Barringo Road and Wooling Road, north of the New Gisborne Township. It is irregular in shape, comprises extensive parks and gardens, scattered dams/lakes and a non-denominational chapel. It consists of a vineyard[1], beautifully landscaped gardens and a "field of companions". It is in the 'field of companions' where the ashes of small domestic pets are interred.
Wooling Hill has fielded requests to bury domestic pets (dogs, cats, rabbits, guinea pigs, birds and other small animals that can be classified as domestic pets) due to an increasing demand from their owners for burial. Each pet will be buried in either a bio-degradable bag or in a timber casket to allow for the natural decomposition process to occur.
Apparently, cremation of animals is an expensive process; further, one is never certain that the ashes of one's beloved pet only (not mixed with other people's pets) are returned to the owner.
Wooling Hill Memorial Park is in a garden setting and memorials are plaques located at or near ground level[2]. There are no headstones, crypts or similar structures that normally identify a place of burial.
It appears that the vets, who put down peoples' pets, often send them to landfill. But the public is more sophisticated and wishes they were buried rather than dumped in landfill.
Wooling Hill intends to allocate a very minor portion of its 21.7 hectare site for pet burials[3].
Wooling Hill presently inters the ashes of humans and of pets and conducts memorials for the deceased in its chapels.

The Director of Wooling Hill seeks a declaration under the Planning and Environment Act 1987, s. 149A qualifying the meaning of the word 'cemetery' as recorded in a Tribunal's decision of 1999 to "cemetery for human burials' as defined in the Cemeteries Act 1958, and qualifying the meaning of the word 'crematorium' to 'crematorium for the cremation of human bodies'. The Director manages a memorial park at Barringo Road, Macedon established under Planning Permit No. P98/0325 which issued on 30 June 1999 after a VCAT hearing[4].
Pursuant to condition 1.3 of this permit the land owner had to enter into a Section 173 Agreement under which he covenanted that the land:

shall not be used or developed for the purpose of a cemetery or crematorium. The agreement shall otherwise be on terms to the satisfaction of the responsible authority.

On 8 March 2000 the landowner entered into a Section 173 Agreement under which he covenanted:

unless otherwise agreed to by the responsible authority, the owner agrees not to allow the land to be developed or used for the purpose of a cemetery or crematorium.

The background to this undertaking was a representation made at the VCAT hearing[5] by Wooling through their representative, Mr Cicero, allaying objectors concerns that once a memorial park establishes, it is an easy step to then establish a cemetery which would include a crematorium and burials. Mr Cicero offered:

To put the issue beyond doubt, the permit applicant is prepared to enter into a Section 173 Agreement under which he covenants that he will not use or develop the land for the purpose of a cemetery.

At that time, cemetery and crematorium were innominate uses in the Rural Zone and permissible under Section 2 of that planning scheme.
The responsible authority has advised me[6] that the Macedon Ranges Planning Scheme (State, Regional and Local Sections) contained no separate definition of the words cemetery or crematorium at the date of the VCAT decision[7].

Amendment L21[8] inserted a Permit Required Use of land for the purpose of a 'memorial park' in the Rural Zone of the Macedon Ranges Planning Scheme. Memorial Park was defined to mean:

A landscaped garden area used primarily for the placement of ashes and the erection of monuments and may include ancillary buildings and works including a chapel in which funeral services may be held and car parks. It does not include a cemetery or crematorium.

Condition 3 of Wooling's planning permit issued in 1999 limits the size of plaques and other non-vegetation identification to 300mm x 300mm.

The subject land is presently zoned Rural Conservation, under which any innominate use is prohibited. Therefore, if the subject land did not have an existing use right under its planning permit to use the land as a memorial park, both that use, as well as cemetery and crematorium are prohibited uses, since they are not specifically identified under Section 1 or Section 2 of the Rural Conservation Zone.
The words cemetery and crematorium are now defined in the planning scheme to mean:

Cemetery: Land used to dispose of human remains by burial. It may include funeral, chapels or the like.

Crematorium: Land used to cremate human remains. It may include funeral chapels or the like.

On 9 August 2007, Deputy President Helen Gibson gave Wooling an opportunity to amend its declaration application after pointing out difficulties with the definitions and zoning.
Accordingly, Wooling made an application to me at the commencement of the hearing to amend its planning permit pursuant to the Planning and Environment Act 1987, section 87A to allow for the burial of pets. Section 87A reads:

In addition to the powers conferred by Section 87, the Tribunal may cancel or amend a permit that has been issued at its direction if it considers it appropriate to do so. The Tribunal may only cancel or amend a permit under this section at the request of the owner or occupier of the land concerned or any person who is entitled to use or develop the land concerned.

Wooling can make this application under Section 87A as its permit was issued at the direction of the Tribunal in 1999.
The responsible authority also applied for a declaration that a 'pet cemetery' is an ancillary use to the memorial park.
Council did not oppose these two late amendments to the original application, and was very supportive of Wooling's desire to bury peoples' pets, but opined it had no power under the planning scheme to grant permission therefor.
This proceeding had not been advertised to third parties, as it commenced as an s.149A declaration application.

I have already said that cemetery and crematorium in the planning scheme are defined as limited to human remains.
The same applies to the Cemeteries and Crematoria Act 2003 which defines 'bodily remains' to mean a corpse of a human being, 'crematorium' as a building for the purpose of cremating bodily remains; 'internment' as the placing of human remains; 'cremated human remains' to mean the corpse of a human being; and 'human remains' to mean bodily remains or cremated human remains and body parts.
I have checked the Cemeteries Act 1958 and the definitions only point to the remains of human beings, not animals. For example, Section 2A's reference to 'bury' refers to a 'body'; Section 19 refers to a 'corpse'[9] and Section 62, defining cremation and crematorium, only refers to the ashes of a body of a deceased person and human remains.
Mr Barry Green, the responsible authority's Manager of Planning, received an email from Max Murphy, Regional Environmental Health Officer, explaining that:

Legislation relating to public cemeteries and crematoria relates to the internment and cremation of human remains on Crown land reserves for cemetery purposes. The Department's position is that animals cannot be interred in a public cemetery or cremated in a public crematorium.

The Macquarie Dictionary:
1. defines cemetery as a burial ground especially one not attached to a church; graveyard; and
2. defines a crematorium as an establishment for cremating dead bodies.
The shorter Oxford English Dictionary:
1. defines cemetery as a burial ground; a place, usually a ground, set apart for the burial of the dead; a church yard; any burial ground;
2. defines crematorium as a place for cremation; an erection for the incineration of corpses;
3. defines cremate to consume by fire, to burn; to reduce (a corpse) to ashes.
The unabridged Oxford English Dictionary defines cemetery as:
1. a place, usually a ground, set apart for burial of the dead;
2. the consecrated enclosures around a church; a churchyard;
3. a burial ground generally; now especially a large public park or ground laid out expressly for the internment of the dead, and not being the yard of any church;
The same dictionary defines crematorium in the same terms as the shorter Oxford English Dictionary.
The dictionary definitions do not make it clear that they only refer to human remains rather than animal remains.

The questions I am asked to decide are:
1. does the prohibition on cemetery, in Permit No. P98-0325 issued 30 June 1999 prohibit a pet cemetery or only a cemetery for human remains?
2. does the Tribunal have the power, under s.87A, to amend the planning permit to include a use for the purpose of pet burials?
3. if the Tribunal does have this power, how should this power be exercised? For example, should public notice be given before the Tribunal exercises this power?
4. Can a pet cemetery be ancillary to use of land for a memorial park[10]?

It is my opinion that the words cemetery in the planning permit refers to a place for the burial of human remains and does not mean a place for the burial of animal remains.
I agree there is a silence in the previous legislation and planning schemes as to the disposal of animal remains, compared with current legislation and planning scheme definitions, which make it crystal clear that they only deal with human remains.
The dictionary definitions do not make it clear that they only refer to human remains rather than animal remains.
I form my opinion from my general familiarity with cemeteries, which is a place where humans are buried or human ashes are interred. Imagine community astonishment if a cemetery was to be used for both purposes, that is to say, if one found oneself buried next to a pet or a horse or a cow. It is therefore my opinion that a pet cemetery is a different and distinct use of land to a cemetery and does not fall within the generally accepted meaning of the word.
I am therefore prepared to declare that the words cemetery and crematorium in Condition 1.3 of the planning permit do not include a pet cemetery. Once I make that declaration, the permit itself does not prohibit use of the subject land as a pet cemetery. That means that had the objectors wanted to ensure, in 2000, that the s.173 Agreement prohibited both cemetery and pet cemetery, both uses would have had to be expressed.

Is there power under Section 87A to amend this permit to include a pet cemetery?

Scope of clause 63 dealing with existing use rights

Although a pet cemetery as a distinct and separate land use would be prohibited under the Rural Conservation Zone, as an innominate use, clause 63.01 of the Macedon Ranges Planning Scheme establishes an existing use right.
Pursuant to cl. 63.05, a use in Section 3 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use[11].
If land is used for a use in Section 3 of a zone for which an existing use right is established, a permit may be granted to use the land for an alternative use which does not comply with this scheme, pursuant to cl. 63.08. The permission is available provided the Responsible Authority is satisfied that the use of the land for the alternative use will be less detrimental to the amenity of the locality.
It is my opinion that the cl. 63.08 permission is only available if the entire Memorial park use were to be substituted with the pet cemetery use. In other words, the different use must be an 'alternative' use, not an 'additional' use. But that is not what is sought here. Rather, the pet cemetery use is sought to be added to the Memorial Park use. It is my opinion that that is beyond the scope of the power expressed in cl. 63.08.

If, therefore, a prohibited use of land cannot be applied for under the planning scheme provisions, can one obtain such permission by way of the s.87 or s.87A amendment powers?
In Seventh Columbo Pty Ltd v Melbourne City Council[12] the Supreme Court of Victoria held there was power under s.87 to delete a condition restricting the hours of operation of a brothel expressed in its permit, even though the brothel had become a use prohibited in its zone. That was because the exercise of the s.87 power did not alter or expand the primary use permission, which was for a brothel. It only amended the regulatory conditions. In Beaufonte v City of Yarra & Ors[13] the Court held that there was power under s.87 to amend the permit to extend the hours of operation expressed in a condition, notwithstanding that such a brothel had become a prohibited use as a result of being within 100 metres of a dwelling. Again, the exercise of the s.87 power did not alter or expand the primary use permission, which was for a brothel. It only amended the regulatory conditions.
What the applicant wishes me to do here, however, is use the s.87A amendment power to add another primary permission for a separate and distinct land use that is now prohibited.
Section 87A does not allow me to do more thereunder than I could do in the first place under the planning scheme. Permit amendments operate under the primary permit or permission; they may expand the operation of the primary permission, as in Seventh Columbo and Beaufonte but they cannot alter the permission to include a separate and distinct permission.
Having come to this conclusion, I do not need to consider this question pf how the s.87A amendment power should be exercised.

Can a pet cemetery be ancillary to a memorial park for the interment of ashes of humans and animals?

If I do find that pet burial can be considered ancillary, no planning permission is needed for it, as far as use is concerned, because it will be a part and parcel of the primary permission.
There is a considerable body of case law on what uses can be considered ancillary to their dominant use.
In Pacific Seven PL v Knox CC[14] Deputy President Gibson held that there are two ways in which a use can be regarded as ancillary:

The first is where the ancillary activity is quite different to the activities constituting the primary use of the property but are a necessary adjunct to the primary use. In such cases there must exist a close association between the principal and ancillary uses.

The second type of ancillary uses are those types of activities which grow out of or develop from the primary use and are intended to enhance it.

In Alphonso v Casey City Council[15], Senior Member Byard discussed the above two ways but did not find them all that relevant when assessing a prayer meeting arising from domestic activity. Byard SM held that a limited prayer meeting arising in the context of use of a dwelling was ancillary to the dwelling use of the land and had not metamorphosed into a place of worship. It is always a question of fact and degree in each case.
Is the burial of the bodies of small domestic pets an ancillary activity to the interment of human or animal ashes? I acknowledge it is a service that their owners wish performed. But it is not an adjunct to the interment of ashes, in a way in which a memorial service might be. And since the definition of memorial garden is the interment of ashes, I cannot see how the burial of small domestic pets grows out of the interment of human ashes.
It might be arguable that the interment of the ashes of small domestic pets might grow out of burying those of their owners. It might be arguable that the interment of the ashes of small domestic pet grows out of the activity of the interment of human ashes, but it is my opinion that the burial of bodies is a different activity to the interment of ashes.

I regret I cannot assist the applicant in this instance, as the subject land appears prima facie to be an appropriate location and of such a large size to be able to accommodate a small amount of the desired activity (subject to consideration of the merits). In putting all innominate uses into section 3 in this zone, the planning controls have become extremely stringent. I am not sure that the strategic planning draftspersons envisaged this type of outcome in this type of case.

[1] with individual vines used as memorials

[2] in keeping with condition 3 of its planning permit

[3] while the permit allows use of the whole of the 21.7 hectares for a memorial park, the permit only allows the development of 15.7 hectares thereof

[4] Davies v Macedon Ranges SC [1999] VCAT 196

[5] No. 1998/79999 by Member Liston and Mulcahy, dated 24 June 1999.

[7] Davies v Macedon Ranges SC [1999] VCAT 196

[9] although a corpse could conceivably include an animal corpse. The Macquarie defines corpse as 'the dead body, usually of a human being'.

[10] which means a landscaped garden area used primarily for the placement of ashes and the erection of monuments and which may include ancillary buildings and works including a chapel in which funeral services may be held, and a car park

[11] This is where the s.173 Agreement restriction on burial or cremation is relevant

Wooling Hill Garden Estate Pty Ltd v Macedon Ranges SC [2007] VCAT 2226

At a glance

Court

Decision date

Source

Judgment (53 paragraphs)

Wooling Hill Garden Estate Pty Ltd v Macedon Ranges SC [2007] VCAT 2226 (15 November 2007)

Parties