Land and Environment Court of New South Wales CITATION : H N Olsen Pty Ltd v Rockdale City Council [2005] NSWLEC 361 APPLICANT H N Olsen Pty Ltd PARTIES : RESPONDENT Rockdale City Council FILE NUMBER(S) : 11643 of 2004 CORAM: Nott C KEY ISSUES: Development Application :- funeral parlour - traffic and parking - sensibilities and feng shui - dying is part of the reality of living - appeal upheld LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: Lee v Bankstown City Council No.10813 of 1995 (12 February 1996) DATES OF HEARING: 30/03/2005 and 06/06/2005 EX TEMPORE JUDGMENT DATE : 06/06/2005 APPLICANT Mr J. Burrell, solicitor of Burrell Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr B. Tobin, solicitor of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 6 June 2005 11643 of 2004: H N Olsen Pty Ltd v Rockdale City Council JUDGMENT 1 This is an appeal against the council's refusal of a development application for a funeral parlour at 2 Shaw Street, Bexley North. 2 I heard evidence at the site from Dr Y Gascoigne and from local residents who objected to the proposed development and from a police officer. The matter was adjourned back to court for some further evidence including evidence from the Court-appointed town-planning expert Mr S Layman. I also heard evidence from the applicant's traffic engineer, Mr B Conneeley. 3 For the reasons that I will now give, I have concluded that it is appropriate to grant development consent subject to conditions. 4 One of the concerns of the immediately adjoining business proprietor, physiotherapist Mr B Wong, at 6A Shaw Street was that about half his patrons are Asian and that the proposed development presented poor feng shui. Also Ms K Ang was of the opinion that Asian persons walking past the proposed premises from the railway station might find the fact that there are deceased persons at the subject premises to offend their sensibilities. It was the opinion however of the Court-appointed town-planning expert, Mr S Layman, that these concerns were not a sufficient reason for refusal of the development application. 5 It seems to me that while such beliefs of neighbours should be respected, those beliefs should not be used to unduly restrict or prevent the carrying out of other legitimate businesses in the business zone. Death must come to us all, and dying is part of the reality of living. 6 Other concerns were also expressed in writing and orally from objectors in the locality. I should record though that there were letters of support from other persons and churches in the locality. 7 Because of the parking and traffic problems in the locality of the subject land, the subject development can only be approved subject to conditions that limit its operation, and the applicant has agreed to the conditions. Because the applicant has a number of premises from which it operates, it will be able to carry out funeral services at locations other than the subject site if it is considered that any particular funeral service will not be able to meet the requirements of the conditions. 8 The subject site is not located immediately adjoining other businesses on both sides. There is, as I mentioned, a physiotherapy business at 6A Shaw Street, but on the eastern side, the subject land is bound by Shaw Lane. Moreover, the entrance to the subject site is well removed from the entrance to the immediately adjoining business premises to the west. The subject entrance is set back on the subject land from the Shaw Street alignment, unlike other business premises further to the west in Shaw Street. This will enable a canopy that is now proposed in accordance with an amended plan to be erected over the recessed area on the subject land. In addition, subject to consent from the Roads and Traffic Authority, the canopy will extend out over the footpath and connect up with the awning in front of the adjoining premises to the west. 9 This canopy, in my opinion, is important and the proposed funeral services will not commence until such canopy has been erected. Should there be any problem in its approval, and I do not envisage that that would be the case, it would be open to the applicant to seek a modified consent so that the canopy extends only over the subject site itself in the recessed area of the entrance. 10 As I mentioned, because of the particular circumstances of this location, limitations on the proposed use have been proposed or agreed to by the applicant. Likewise, in an earlier decision that I dealt with, Lee v Bankstown City Council No. 10813 of 1995 (12 February 1996), there had to be limitations upon the use of those premises because of the unsatisfactory location in some respects of the premises and the lack of sufficient onsite parking for funeral processions, which in that case were required not to take place from the premises 11 In the present appeal, the premises will be used mostly for non-religious services as indicated by the details in the statement of environmental effects. Before any such service is planned or booked, the proprietor will ensure that it is not likely that the number of attendees will exceed 36. And various conditions have been agreed to which will ensure that funeral processions do not commence from the subject premises. 12 The service or viewing that will take place at the subject premises will not involve a procession. And any funeral arrangements involving such a procession will be allocated to other premises of the applicant. This is important in my opinion, because of the parking and traffic conditions in the subject locality. 13 As regards car parking, four spaces will be provided on the site. There is an historical deficiency of one space, which need not be made up. And in the past, contributions have been made for two spaces. In addition, the applicant will be required and has agreed to contribute for two additional spaces by way of contributions under s 94 of the Environmental Planning and Assessment Act 1979 in the amount of $40,288. These contributions will be used towards augmenting or improving the parking arrangements in the locality together with other contributions that have been received. 14 There is a time limit for parking outside the subject premises and adjoining shops of one hour. Nevertheless, it is likely that persons coming to the subject premises will be able to lawfully park for services that may run more than an hour (including the time of walking from the parked cars to the premises and then leaving in an orderly fashion). If the service runs for more than an hour, there is parking available on the opposite side of Bexley Road in the public car park. 15 As regards traffic, the Roads and Traffic Authority advised that there would be no significant effect on traffic using Bexley Road and I agree with that. A police officer who gave evidence at the site was mainly concerned about public safety, particularly in relation to any changed conditions that might occur in the future with the widening of Bexley Road and the possible creation of an exit ramp into Shaw Lane. This will be a matter for design at a later stage and such a ramp, or the absence of it, is likely to affect not only the subject premises but also other premises which have rear access to Shaw Lane. 16 Because the subject site is immediately adjoining Bexley Road (but for the intervening Shaw Lane), it could be that any future rearrangement of access into Shaw Lane may affect the number of car-parking spaces or access to them at the subject site. If that occurs, one of the conditions, condition 34A, will require the cessation of the present use until and unless a new development consent is obtained, or a modified development consent granted. For example, if one or two car parking spaces were deleted, I would think that the council could, by requiring a new development application, impose further contributions for the deficient spaces as a condition of consent. 17 As regards traffic in Shaw Street and Slade Road, I have taken into account the evidence of the local residents about the backup of traffic in the morning and peak times. And because of the traffic situation, it is appropriate that chapel services should not take place before 10 am and should end no later than 3 pm. The applicant has accepted a condition to this effect. 18 Having regard to the amenity of business premises opposite the subject site and in its vicinity, conditions of consent will not allow any hearses or other vehicles transporting coffins or deceased persons to park in Shaw Street. The loading and unloading of such vehicles will take place on the site with access to it from the rear. 19 In relation to a condition of consent which was proposed by the council requiring a $9,000 contribution for changes to a refuge near Bexley Road, I am of the opinion that that condition is not warranted. It is not supported by Mr Conneeley. 20 As regards the management of people coming to the premises for a chapel service and leaving after it has taken place, there is a traffic management plan prepared by Traffic Impact Services Pty Limited, exhibit H, and it is appropriate to adopt that plan. The plan may be reviewed once only by the council after 12 months and no later than 18 months from the date of the first commencement of funeral services. 21 At the other premises where the applicant conducts services referred to in the evidence, the average number of chapel services per annum is 32. And at one of the premises, the number of services is 35 per annum. Although the Court-appointed expert considered that 50 services per annum could be permitted initially, I am of the opinion that the number should be limited to 35 per annum. This figure is higher than what the applicant originally proposed and it corresponds to what is happening elsewhere. If the conduct of the business at the subject premises does not impose unduly on the amenity of the neighbourhood or otherwise materially adversely affect the business centre, it would be open to the applicant to apply to the council to modify that condition. 22 For those reasons, the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for a funeral parlour at 2 Shaw Street, Bexley North, subject to the conditions in annexure A, initialled by me and placed on the Court file. I make available a copy of annexure A to the parties.* 3. The exhibits other than exhibits B, C, H, K, N and P may be returned. _______________ A J Nott Commissioner of the Court rjs ___________ * This internet version of the judgment does not reproduce the conditions in annexure A. The conditions may be inspected at the council chambers. 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.