Alex Gow Pty Ltd v Redland Shire Council & Ors [2008] QPEC 52 [2009] QPELR 116

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Alex Gow Pty Ltd v Redland Shire Council & Ors [2008] QPEC 52 PARTIES: ALEX GOW PTY LTD Appellant V REDLAND SHIRE COUNCIL Respondent And CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS First co-respondent by election And CORNELIA CIELSA, KIM MITCHELSON AND MONIQUE MITCHELSON, GRAHAM CARR, JOY DRUMM, CHRISTINE FORD, TERESA MURPHY AND ANTHONY MURPHY, JENNY SUTTER AND PETER SUTTER, MEREDITH MCNAB AND GREG MCNAB, ANNETTE WATSON, BRETT SAWYER, MARIE MARCHESE AND ANDERS DE FRANCIS, WILFRED DUMBLE AND BESSIE DUMBLE, PAUL KHOURY Second co-respondents by election And JOHN RICHARD DARBYSHIRE Third co-respondent by election And WENDY DERBYSHIRE Fourth co-respondent by election And ALAN WINSLADE Fifth co-respondent by election And -- 1 of 11 -- 2 JULIE ROBYN WINSLADE Sixth co-respondent by election And NANKO HORVARTH Seventh co-respondent by election And LOIS MARIE STEELE Eighth co-respondent by election FILE NO/S: 1520/2007 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 14 August 2008 DELIVERED AT: Brisbane HEARING DATE: Inspection 28 July; hearing 28, 29, and 30 July 2008; written submissions received 31 July 2008 JUDGE: Alan Wilson SC, DCJ ORDER: Appeal dismissed CATCHWORDS: PLANNING – PLANNING AND ENVIRONMENT – CONSTRUCTION OF PLANNING SCHEMES – CONFLICT WITH PLANNING SCHEMES – WHETHER SUFFICIENT GROUNDS TO OVERCOME CONFLICT – AMENITY – TRAFFIC – proposal for funeral parlour – whether conflict with former or present planning schemes – amenity – whether unacceptable impacts upon amenity – traffic Integrated Planning Act 1997, ss 3.5.14, 4.1.52(2)(a), 6.1.30 Local Government (Planning and Environment) Act 1990, s4.4(5A) Cases considered: Acland Pastoral Co Pty v Rosalie Shire Council [2007] QPEC 112 Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 Australian Funerals Pty Ltd v Maroochy [1994] QPLR 355 Bell v Noosa [1983] QPLR 311 Broad v Brisbane (1986) 2 Qd R 317 Campbell-Brown v Brisbane [1997] QPELR 147 Ecovale Pty Ltd v Gold Coast (1999) 2 Qd R 35 -- 2 of 11 -- 3 Feldhahn v Esk [1989] QPLR 91 Grosser v Gold Coast (2001) 117 LGERA 153 Kotku Education and Welfare Society Inc v Brisbane [2005] QPELR 267 Mackenzie v Brisbane [2000] QPELR 94 Rio Pioneer Gravel Co. Pty. Limited v. Warringah Shire Council (1969) 17 LGRA 153 Sempf v Gatton [1997] QPELR 198 Telstra Corp v Pine Rivers [2001] QPELR 350 Weightman v Gold Coast [2003] 2 Qd R 441 Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273 COUNSEL: C Hughes SC and M Williamson for appellant S Ure for respondent M T Labone , directly briefed for second co-respondents by election SOLICITORS: Connor O’Meara for appellant Deacons Lawyers for respondent [1] Alex Gow, a long established funeral director in south-east Queensland, wishes to construct a funeral parlour on land at Cleveland in a residential area presently occupied by a church (as envisaged by the current local planning scheme). Council refused approval for that purpose and was supported in its opposition by the group of local citizens named as the second co-respondents1 . This is Alex Gow’s appeal against Council’s decision. [2] Modern planning schemes tend to encourage funeral homes or parlours away from residential precincts and towards commercial and industrial areas2 , and the case focussed upon interesting questions about that trend, the nature of the use, and its effect on amenity in residential areas – and, whether the services in a chapel proposed as part of the funeral parlour are so similar to those in a ‘place of worship’ as to extinguish any real difference with a church, and negate any conflict with the planning schemes. [3] A surprising aspect of the case is that, although the Shire contains 140,000 people and is growing fast, it presently has no facility of this kind. [4] The proposal incorporates a reception area and office, a facility for selecting coffins, a viewing room, an area for wakes (‘refreshments’) and associated facilities, the chapel itself, a garage and a parking area. The site would not contain a cremator or mortuary facilities or an embalming room or the like, and the bodies of deceased persons would not be stored or treated there. In essence, then, bereaved persons would attend the premises to make funeral arrangements and later, perhaps, for a funeral service. [5] The land is at 304-8 Bloomfield Street, Cleveland and contains 4576m2 . It is a large open block on a corner with Ocean Street, running through to Werong Crescent 1 The first co-respondent was excused from attendance at the hearing by earlier order; the third to seventh did not appear; and the eighth supported the appellant. 2 See the summary of eight south-east Queensland planning schemes prepared by Ms Marchbank, town planner, in Exhibit 32. -- 3 of 11 -- 4 which is parallel to Bloomfield St. The site is presently occupied by a church on the corner of Bloomfield and Ocean Streets and, at the south, a small hall and a single story residence. The church building and the hall would, under the proposal, remain in situ. [6] The parcel is largely vacant, especially on the Ocean St and Werong Cr sides. Opposite, in each of those streets and across the divided road that is Bloomfield St are detached homes, predominantly of brick and tile. Inspection showed the area is fairly described by one of the town planners, Mr Brown, as ‘…an established, fully developed detached house residential locality with pleasant characteristics’3 . [7] The design of the various buildings comprising the funeral parlour, and associated landscaping, presented as thoughtful. It involves site coverage of only about 30%, low buildings which are not noticeably discordant with the outline of surrounding homes, and extensive new plantings which, ultimately, would largely shield the new structures and activity in and around them from view4 . In the upshot, Council and the submitters did not pursue issues relating to any impacts concerning building bulk or scale, or landscaping (or noise, light, or odour associated with activities on the site). [8] Bloomfield St is a busy, divided four lane road carrying about 16,000 vehicles each day and operating as the major arterial connection between Cleveland and more southerly parts of the Shire. Access to the proposed development would be from both Bloomfield and Ocean Streets with the main entrance, to the front of the chapel, via the latter. There is no access of any kind, including pedestrian access, to or from Werong Cr, where there would be a fence and a 6m landscaped setback. [9] The issues contracted to questions whether the proposal is in conflict with Council’s former planning scheme or prejudicial to its current one – and, if so, the extent of the conflict and whether there are any planning grounds which might overcome it; traffic; and, amenity. [10] When Alex Gow’s application was lodged with Council5 its planning scheme was a ‘transitional’ one – i.e., one promulgated under the legislation (the P&E Act6 ) which preceded Queensland’s current planning statute, the Integrated Planning Act 1997 (IPA)7 . At the time of lodgement, however, the Shire’s new IPA-compliant planning scheme 8 was well advanced and came into effect before Council decided the application. This means it is to be measured against both9 , in the sense that although the new IPA scheme does not operate retrospectively the weight to be given to it is, here, palpable. [11] Two very senior traffic experts, Mr Holland and Mr Beard, disagreed whether the traffic the parlour would attract might make the site unsuitable. The amenity questions focussed heavily upon the effect a facility of this kind may have on 3 Exhibit 2, p 2, para 14. 4 Representations of the future appearance of proposed new buildings appear in Mr Chenoweth’s report, Exhibit 6. 5 On 27 May 2005. 6 The Local Government (Planning and Environment) Act 1990. 7 The 1988 Redlands Shire Planning Scheme, and the 1998 Redlands Shire Strategic Plan. 8 The Redlands Planning Scheme 2006. 9 IPA s 4.1.52(2)(a). -- 4 of 11 -- 5 residents and featured evidence from Mr Hall, a psychologist with experience in aspects of thanatology10 and Dr Cameron, also a psychologist, who interviewed some local residents and concluded that activities at a funeral parlour may have adverse psychological consequences for them. [12] Before these issues are considered, however, it is appropriate to address an aspect of the evidence which received more attention than is usual or, I thought, warranted: whether other sites in the Shire (within zonings under the planning schemes which contemplated facilities of this kind) were suitable, and available. In fairness to the parties, this focus was the product of several aspects of the case: Mr Alistair Gow’s expressed preference for placing a parlour in a quiet neighbourhood and away from the commercial or industrial areas to which both the old and new planning schemes tend to direct funeral homes and the like; the respondents’ efforts to show, in the face of an argument that the need for a facility of this kind is compelling, that land in appropriately designated areas is, in truth, available; and, their contention that merely because no similar facility presently exists in the Shire does not justify placing it in a residential enclave, or overriding scheme provisions. [13] Proceedings of this kind cannot, for a variety of good and obvious reasons, devolve to a comparison of different parcels or require an applicant to demonstrate that the subject land is the ‘best’ site11 . The result would be intolerable for the process of assessment. Evidence of suitably zoned land elsewhere in the area is only relevant to the issue of need, and the weight to be attached to it. [14] Under Council’s 1988 scheme the land was located in the residential zone, but the 1998 Strategic Plan’s Preferred Dominant Land Use (PDLU) for it is ‘Special Facilities/Public Purpose’, with a specific designation for a church. That anticipated use is maintained in the 2006 scheme which places it in the ‘Community Purposes (CP6 – Place of Worship)’ zone. The combined effect of IPA 12 and the P&E Act13 is that because a funeral parlour was a prohibited use under the old schemes and would have required an application for rezoning, the local government must refuse it if it is in conflict with the planning scheme unless there are sufficient planning grounds to justify approval despite that conflict. The testing process is mandatory14 and involves either a two- or three-step enquiry15 , although it is not to be undertaken in an unduly mechanical way16 . The process is not, for present purposes, markedly different under the new IPA planning scheme of 2006 17 . [15] The designation of the land for residential purposes under the 1988 scheme is largely of historical interest now, in light of the change made under the 1998 Strategic Plan, but retains some measure of materiality because all the surrounding land is still, under the 2006 scheme, designated for residential purposes; and, a funeral parlour remains, for this particular site, an inconsistent (‘generally 10 Said, for present purposes, to involve the study of death and bereavement (although, more correctly, the term now means the science which deals with the needs of the terminally ill and their families: Oxford English Dictionary). 11 Ecovale Pty Ltd v Gold Coast (1999) 2 Qd R 35, at 47; Kotku Education and Welfare Society Inc v Brisbane [2005] QPELR 267, at 280. 12 Section 6.1.30. 13 Section 4.4(5A). 14 Weightman v Gold Coast [2003] 2 Qd R 441 at 453. 15 Grosser v Gold Coast (2001) 117 LGERA 153; Weightman v Gold Coast (supra). 16 Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273. 17 IPA, s 3.5.14. -- 5 of 11 -- 6 considered inappropriate’) use and is to be considered according to the most stringent of the IPA assessment regimes – impact assessment. [16] Under the 1998 Plan the intended use is to ‘… accommodate activities of public and semi-government authorities together with other uses not specifically covered by other designations including activities of an institutional, religious and community nature’. In addition, of course, this parcel was specifically designated for a church. [17] The appellant emphasised two matters said to imply little or no conflict between its proposal and this designation: first, the fairly broad range of uses nominated as preferred; and, secondly, what are said to be marked similarities between the activities ordinarily associated with a church and those which would occur in this funeral home and, in particular, its chapel. While it is certainly true that the services conducted in a funeral home chapel18 will usually be similar to funeral services in a church, these propositions do not bear closer scrutiny. [18] At its core, the enterprise to be conducted by the appellant is a commercial one involving not only services in the chapel but also the arrangement of funerals, the selection of caskets, and the transportation and viewing of the bodies of deceased persons. Religious services are an element of those activities but they are adjunctive, not central; and, while it is indisputable that funeral directors provide an important service to the community that does not mean their work fits the phrase ‘activities of an institutional, religious and community nature’. The word ‘community’ is plainly used, in this context, to mean something in the sense of fellowship, or undertakings for community benefit, and not a commercial activity which incidentally provides a service to those members of the community who engage the appellant. [19] Nor can it be said that services in a chapel at a private funeral parlour, because they are similar to services in a church, mean the parlour sits comfortably within the definition of ‘place of worship’ in the 1988 Plan (or the 2006 scheme) . Funeral services in churches are but one of many familiar activities which occur within them, including customary religious services, baptisms, weddings, and social and community activities like youth groups, meetings for religious purposes and study and the like19 . In contrast, the activity in a funeral parlour has only one focus. The fact that the planning schemes do, in fact, make provision for funeral parlours elsewhere means this is not a case in which the definitions might be less stringently construed, or that the comparison blurs20 . [20] The plain difference between the proposed use and what is envisaged by the planning schemes means that conflict with them is readily identified. The nature and extent of the conflict hinges not only, however, upon the apparent differences between the activities in a funeral parlour like this one and those in a church but also, here, on what has been accepted as a matter of obvious relevance in the 18 About 80 percent of which, Mr Gow said, are conducted by ministers of religion: his statement, exhibit 8, para 21. 19 As the 1988 definition says, a ‘place of worship’ is any premises ‘…used or intended to be used for the religious activities of a religious organisation’. 20 See, eg, the ‘service commercial’ designation under the 1998 Strategic Plan, s 4.3.3. -- 6 of 11 -- 7 process of evaluation: the impact of the proposal on the usual amenity of residential use 21 . [21] ‘Amenity’ is a nebulous thing, and the difficulty which attaches to any attempt to define it extends to the exercise of identifying and examining the matters or circumstances which may have an adverse effect upon it. As has previously been said in this court22 , consideration of amenity in a town planning context is not undertaken in the abstract but is informed by the relevant town planning controls, and the notion of reasonableness23 . While the subjective views of those whose amenity may be effected are not to be ignored, questions about the issue must be answered ‘…according to the standards of comfort and enjoyment which are to be expected by ordinary people of plain, sober and simple notion, not effected by some special sensitivity or eccentricity’24 . The weight to be accorded to subjective views can only be judged in the light of all the evidence about the subject; they may be supported by other evidence, or it may be shown in an objective sense that they are overblown, extravagant or unreasonable25 . [22] Analysis of the issue was not, with respect, markedly assisted by the evidence of Mr Hall or Dr Cameron. The latter undertook a commissioned enquiry, in very small compass, amongst local residents who had a previously expressed opposition to the proposal and were selected by one of them whose statement26 made it clear that she was distressed by the proposed development, and instrumental in generating community opposition and lobbying local counsellors against it. Such a small sample of persons with an announced antipathy to the proposal can be given little weight save, perhaps, as a summary of their fears. [23] Mr Hall was an interesting witness whose work has, for some time, focussed on matters surrounding bereavement and death. In his opinion, any initial upset or concern local residents might experience from the presence of a funeral parlour and the activities in it will fade over time, as a consequence of the process of ‘habituation’: i.e., a steady diminution of their concerns as they adapt to the presence of the parlour leading, eventually, to calm acceptance. This proposition was said to be supported by evidence showing that, as I accept, in other places throughout south-east Queensland residential homes closely abut funeral parlours; yet, there is no research or literature suggesting that those living there suffer psychological harm or, indeed, any distress or particular concern. [24] That said, the notion that a funeral parlour has the potential to effect residential amenity is hardly a novel one. In Broad v Brisbane (1986) 2 Qd R 317 both de Jersey J (as his Honour then was) and Thomas J remarked upon that very prospect. As de Jersey J observed even a small funeral parlour, well designed to look like a house and with discreet access and good landscaping so that it is barely noticeable might yet have an unmistakeable ‘air’ or ‘feel’ to it, and would have an adverse effect on residential amenity. Thomas J remarked, at 319-20: 21 Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157, at paras [60], and [61]. 22 Acland Pastoral Co Pty v Rosalie Shire Council [2007] QPEC 112 per Dodds DCJ at [40]. 23 Bell v Noosa [1983] QPLR 311; Feldhahn v Esk [1989] QPLR 91. 24 Broad v Brisbane (1986) 2 Qd R 317, per Thomas J at 319, citing Rio Pioneer Gravel Co. Pty. Limited v. Warringah Shire Council (1969) 17 LGRA 153 at 168 per Else Mitchell J. 25 Telstra Corp v Pine Rivers [2001] QPELR 350. 26 Exhibit 18. -- 7 of 11 -- 8 The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate … The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce. All counsel agreed that the provision of a funeral parlour was a good example of an institution which, whilst discreet in its conduct and relatively small in its production of physical consequences, would be likely to have an effect in the way of “atmosphere”. Whether this is described as prejudice or otherwise does not matter. It is a recognisable and normal enough perception of the ordinary resident. (emphasis added) [25] One of the town planners called in the case, Ms Marchbank, described these potential effects on ‘atmosphere’ in terms which, in light of the nature of the surrounding area revealed in the evidence and confirmed during inspection, were helpful and perceptive: 117. Amenity, especially in residential neighbourhoods, involves more than the physical aspects of neighbourhood amenity, it is the perception of the ‘atmosphere’, ‘ambience’, ‘feeling’ and ‘character’ of the neighbourhood. The atmosphere of the residential neighbourhood, regardless of its socio-economic status, is what influences people’s choices of where to live. Regardless of demographics, religious, spiritual or personal reasons, the perception residents have of the atmosphere of their neighbourhood is real. It is where people live, families grow and interact, where day-to-day life is played out, it is not merely physical existence. 118. The amenity of the neighbourhood surrounding the site would be adversely effected by the perception of the activities associated with the proposal, and not specifically the form of the development, or that it is non-residential activity. Changes to the residential amenity would be imposing, including imposing mortality considerations on the residents on a daily basis. This will negatively effect some residents’ perception of the amenity of their neighbourhood and their general outlook or state of mind, happiness, living conditions, quality of life, which then effects their overall well-being. 27 [26] The absence of tangible evidence of adverse consequences elsewhere, which was an aspect of Mr Hall’s evidence, is not determinative. The question is whether adverse amenity impacts are, on the balance of probability, likely to occur if this proposal is permitted in this locale. [27] The discussion in Broad was (as the judgments show) speculative in the sense it arose in the course of debate during the hearing, but it is compelling as an affirmation that this very use is typically seen as a vivid example of something which may give rise to subtle, but marked, effects upon the amenity of a residential area. [28] It is an entirely fair surmise that the ‘atmosphere’ of this pleasant residential enclave would be effected to some degree by the inevitable reminders of death associated with a funeral parlour and the grief and unhappiness to which that loss, in our society, gives rise. The range of potential effects was fairly summarised in the passage from Ms Marchbank’s report quoted earlier. They will trouble some residents more than others. Some may come to an accommodation with them over time, but others may not. Some will find it necessary to adjust their behaviour in 27 Exhibit 13, p 26. -- 8 of 11 -- 9 ways they feel are inconsistent with enjoyment of ordinary domestic life in a residential street, and some will not. [29] In any event, it is an inescapable conclusion that these effects will change the ‘residential’ atmosphere. There was no evidence to suggest those changes could be beneficial. On any view, immediate or long-term changes are much more likely to be of a nature which alters the feelings of local residents in a way which is not in harmony with – is discordant from – what they expect in their residential neighbourhood. Once that discordance is appreciated it is compelling that the changes can only, properly, (and on the balance of probabilities) be categorised as adverse. It is no answer, I think, that the effects may vary between individual residents, or be subtle. On any view, they will permeate the surrounding neighbourhood. [30] Amenity is an important issue and, perhaps a little unfairly for Alex Gow (in the sense the appellant has struggled to reduce impacts here, and plainly seeks to be a good neighbour) it must be categorised as a significant hurdle for its application. It becomes a greater barrier when the risk of adverse impacts arises, as here, in circumstances where the operative planning schemes turn their face against the impacting use in residential areas. [31] Indeed, the terms of the applicable schemes may be seen as an additional facet of the impact this proposal might have upon amenity because they give rise to a reasonable expectation in local residents that the land will be used for the purposes identified in them (and not for those which the schemes categorise as inimical). The nature of the proposed use, and its plain difference from what the schemes anticipate, is likely to be seen by residents as a serious affront to those expectations, and engender strong opposition. The fact those feelings are subjective does not make them immaterial; this is a case of the kind discussed by Dodds DCJ in Acland Pastoral Company28 – i.e., one in which the individual concerns of residents can fairly be considered as carrying weight in respect of the issue of amenity. [32] The application seeks to introduce a commercial use onto a site designated for a place of worship with discernable, albeit inchoate, impacts upon the amenity of the area in which it would be placed, to the point where it would change that character and amenity in a distinctive and adverse way. This analysis points strongly to the conclusion that the conflict between the proposal and the planning schemes is quite marked and falls more towards the major, rather than the minor, end of the scale. [33] The primary planning ground relied upon by Alex Gow to overcome this conflict was the community need for a facility of this kind in the Shire. That need arises, it was submitted, in the context of the convenience and centrality of this parcel, and the absence of ‘hard’ amenity impacts or any other suitable site. But while the evidence was persuasive that there is a need for a funeral home in Redland Shire, that need cannot be shown to have an immediate link or connection with this particular parcel. When, as here, the planning schemes do provide for the proposed use in other categories in the Shire planning scheme and amenity impacts are apparent it cannot be said that need, as a planning ground, is compelling. 28 Supra. -- 9 of 11 -- 10 [34] Some evidence was directed to the question whether it was inappropriate to meet that need in other zones like those intended for commercial industry because they provide unsuitable surroundings for the kind of quiet dignity to which funeral directors unsurprisingly aspire, but there was no conclusive evidence suggesting that any detriment to that atmosphere could not be ameliorated in those locations by appropriate design and landscaping (or that there was inadequate land within those zones to meet the need for a funeral home in this Shire). [35] It follows that the planning grounds relied upon by the appellant, hinged as they are upon need, are neither strong enough nor sufficiently connected with and referable to the nature of the conflict to overcome it. There are, to adopt the phrase used in Weightman29 , significant planning considerations against those parts of the application which are in conflict with the planning schemes. Nor are there, with reference to the third stage of the Weightman test, other persuasive or good planning grounds in favour of the application. [36] Nor can the appellant take comfort from the current planning scheme. The site is located in land intended to provide a ‘place of worship’ and the scheme dictionary defines that term as ‘…premises used for a church, chapel, mosque, temple, synagogue or similar place of worship, with ancillary facilities’. A funeral parlour is separately defined as premises used to ‘…arrange and conduct funerals, memorial services and uses of a like nature’, and includes ancillary facilities such as a mortuary, crematorium, and funeral chapel or administration area used in connection with that primary purpose. [37] The mere use of the word ‘chapel’ in the definition of ‘funeral parlour’ does not, here, provide support or comfort for the appellant. For reasons already explored in the context of the former schemes, the differences between the two uses (a church, and a chapel at a funeral parlour) are manifest. While it is true that the inclusion of the land in the Community Purpose designation must give rise to a reasonable expectation that the site would be used for some non-residential activity, the designation cannot mean that residents should reasonably and fairly anticipate a non-residential use which is quite different from a church. [38] The particular use planned for this parcel is for a place of worship, but what the appellant pursues is a facility which has the primary purpose of arranging and conducting funerals. Again, while there is some overlap between the activities involved in meeting those purposes, they remain quite distinct. The primary focus of one is upon the reverence of a deity and associated religious activities; the other, to disposal of the mortal remains of a deceased person in a traditional way. The only point of similarity is the occasion for religious observance which often, but not necessarily, occurs during a funeral service. But that is the only similarity – otherwise, a funeral parlour remains a commercial activity involving a number of non-religious elements. [39] I was not, ultimately, persuaded that questions about traffic were sufficient to warrant refusal of this proposal. Concerns about the need for U-turns on Bloomfield Street, and the possibility of pedestrians parking on it and attempting to cross are not compelling when, as inspection showed, they are already an element of the structure of that busy road and are unlikely to be significantly exacerbated by 29 Supra, per Atkinson J at pp 289-293. -- 10 of 11 -- 11 the relatively small number of funerals which, Mr Gow anticipated, would be conducted on this site. A proposed limitation of turns out of the premises so drivers could only go left into Ocean Street would probably reduce the risk of excessive use of nearby residential streets, in preference to the major road. Ultimately, the issue appeared to be a relatively neutral one, neither markedly adverse to the proposal nor capable of constituting a planning ground in support of it. [40] Finally, although the appellant was able to point to decisions of this court in which funeral parlours had been approved within residential localities, or within relatively close proximity to residential uses, each turned very much upon its own facts and none was germane here in the sense that it suggested the conflict was on a lesser scale than that previously estimated, or that the Weightman exercise undertaken previously overlooked any critical features. [41] In Campbell-Brown v Brisbane [1997] QPELR 147 the major issues were traffic and parking, and the nature of the local residential amenity was plainly very different from that of this neighbourhood, with its relatively quiet and attractive ambience. (In ascribing that quality to the area I have not overlooked the presence of traffic on busy Bloomfield Street. Inspection confirmed, however, that the effect quickly evaporates in Ocean St and Werong Cr, and nearby streets.) In Sempf v Gatton [1997] QPELR 198 the amenity of the locality was, in fact, a ‘mixed’ one including a bus depot, other commercial activity and a high level of non-residential traffic, and the land lay within a commercial precinct. [42] Mackenzie v Brisbane [2000] QPELR 94 was, also, quite a different case. The premises were already used by an undertaker for administration and it now sought to add a viewing room. While Quirk DCJ suggested that it would be unrealistic to suppose that undertakers’ establishments should be placed in areas remote from residential use, the comment fell from his Honour in circumstances where the planning scheme apparently did not, as here, turn its face against funeral homes in residential areas. Finally, in Australian Funerals Pty Ltd v Maroochy [1994] QPLR 355 the local authority had refused an application for a funeral parlour chapel in commercial land, it was highly material that those local residents who raised amenity issues had acquired their properties with a full understanding that the land was zoned for commercial activity, and the zoning permitted the use. [43] Mr Alistair Gow said, and I accept he firmly believes, that funeral homes are better placed and more attractive in areas like this one, and planning schemes which divert them into retail or commercial or industrial areas are misguided. There was no reason to doubt that his views arise from a genuine concern for the care and comfort of the bereaved, but they are in plain conflict with the obvious tenor of the planning scheme. During the appellant’s case it was also suggested, from time to time, that its activities would be generally less intrusive than those of, say, a new large church on this site. Again, that may well be true but it is speculative and, whatever else may be said about that kind of eventuality, it could not be described as unexpected. [44] For these reasons, the appeal is dismissed. -- 11 of 11 --