Australian Funerals Pty Ltd v Council of the Shire of Maroochy & Anor [1994] QPEC 18

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 246 of 1992 Before Quirk DCJ [Aust. Funerals P/L v. Maroochy S.C.] BETWEEN: AUSTRALIAN FUNERALS PTY. LTD. Appellant - and - THE COUNCIL OF THE SHIRE OF MAROOCHY Judgment delivered: catchwords: Counsel: Solicitors: Hearing Date(s): Respondent - and - MARGARET BOOTH Respondent by Election REASONS FOR JUDGMENT 07.03.1994 J. Clifford QC with J. Barbeler - Appellant C. Hughes - Respondent G. Egan - Respondent by Election Beston & Co - Appellant J.D. Hall - Respondent Boyce Garrick & Eastman - Respondent by Election 23-24/2/94; 03/03/94; 07/03/94 -- 1 of 8 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: AND: Appeal No. 246 of 1992 AUSTRALIAN FUNERALS PTY. LTD. Appellant THE COUNCIL OF THE SHIRE OF MAROOCHY Respondent MARGARET BOOTH Respondent by Election REASONS FOR JUDGMENT - QUIRK D.C.J. Delivered the day of March 1994 This appeal is against the respondent's refusal of an application for town planning consent to the use of premises in Fourth Avenue, Maroochydore as a Funeral Parlour Chapel. The land comprises an area of 635 square metres on the western side of Fourth Avenue and one allotment removed from the intersection with Aerodrome Road. The land is included in the Commercial Zone in the respondent's Town Planning Scheme and at the present time carries a single storeyed modern brick structure in front of which there is a sealed area for on-site carparking. Town planning consent for the construction of this building as a "professional office" (Undertaker's establishment) has been given. The appellant operates facilities concerned with the direction of funeral services in a number of areas. Its -- 2 of 8 -- f ,:CiYf , . 2 operations in this area of the State are based at Nambour. The proposal to make use of the premises as a chapel was prompted by a perceived loss of market share in the coastal region following the establishment there of rival facilities. Up until now the only use being made of the premises involve the attendance by one of its employees on site for a few hours each day for administration purposes. No funeral services are presently conducted from the building. As mentioned, the subject land is included in the commercial Zone in the Town Planning Scheme as is all other land (with the exception of one allotment) in the block bounded by Aerodrome Road, Fourth Avenue and Kingsford Smith Parade. The majority of allotments fronting Aerodrome Road in this part of Maroochydore are also included in the Commercial Zone. Land on the opposite side of Fourth Avenue and to the north of Kingsford Smith Parade is zoned Residential c. The property adjoining the subject land to the south which also has frontage to Aerodrome Road is a commercial building comprising a video hire outlet and a convenience store. The land immediately to the north carries a residential dwelling but the premises have in the past been partly used for commercial purposes. clinic. Further to the north there is a natural therapy There were objections to the proposal and these were given due consideration by the respondent planning authority and by the Court. The respondent initially refused the application mainly because of a perceived inability on the part of the proposal to provide sufficient on-site carparking as required by the Town -- 3 of 8 -- 3 Planning Scheme for a development involving "professional offices". There is no specific requirement for premises from which funerals are conducted. Following negotiations between the appellant and the respondent, the latter agreed to withdraw its opposition to the proposal subject to the imposition of a redrafted set of conditions. The major factor which led to this change of attitude was the appellant's preparedness to abandon that part of the proposal which involved the use of the premises as "professional off ices". The respondent was also assisted by further advice from its recently appointed traffic engineer and data relevant to traffic activity in this area. Aside from problems associated with carparking, it is difficult to see any substantial town planning reason for refusing the application. The issue of need was raised faintly but as this is an appeal in relation to a town planning consent, the issue would, even if shown to have some substance, be of marginal, if any relevance. The proposed use falls within the definition of "undertaker's establishment" which is: "Any premises used or intended for use by an undertaker for activity in connection with his work". At first glance one might have wondered whether the existing town planning consent might have covered the proposal, but it appears to have been accepted that the incorporation of the chapel called for further town planning consideration particularly in regard to carparking. In his evidence, Mr. Dillon (the town planning consultant called by the appellant) demonstrated to my satisfaction and in -- 4 of 8 -- 4 accordance with my interpretation of the relevant provisions of the Town Planning Scheme that the proposal was consistent with the stated intent of the Commercial Zone. Mr. Lightbody (called by the respondent by election) was concerned as to whether the facility would provide a service of a primarily local nature. As the specific objective of the appellant in establishing the chapel was to preserve its share of the local market for the services, it is hard to see any real basis for these concerns. Attention was drawn to the definition of "local services" in which reference is made to activity being carried on in a building or other structure which has a gross floor area "not exceeding 200 square metres". It seems to me that the relevant point here is that, notwithstanding the floor area of the building, the designated chapel area is limited by condition to 90 square metres. Additionally the likelihood appears to be that any funeral conducted here will be that of a person formerly resident in the local area. Mr. Lightbody also sought to raise possible detriment to the amenity of nearby residences as a negative factor. He suggested that the area being "one in transition" called for minimum disruption and amenity loss to those who chose to remain in residence in it. He expressed the view that because of the "sombre nature" of activities on site, its "social impact" on adjoining residences would be adverse. Whether it is too much to ask residents of an area to accept the manifestations of what is perhaps an unwelcome but regrettably inevitable finale to human existence might be considered if the land were otherwise zoned. -- 5 of 8 -- 5 It would appear to me however that the notion advanced by Mr. Lightbody placed quite inadequate emphasis upon the land's zoning and uses that may occur as of right or town planning consent upon it. This proposition was rejected by both Mr. Dillon and Mr. McMahon (the respondent's town planner who assisted the Court with what I considered to be a fair and sensible assessment which favoured the proposal). It is noteworthy that the residents most likely to be effected by the proposal (Mrs. Booth and Mr. Seeto) acquired their land not only with the full understanding of its zoning but also with the specific intention of using it for some form of commercial activity. In my opinion, the only issue of any substance was that which raised the sufficiency of on-site carparking and problems that might be encountered if mourners are required to park kerbside. In relation to this I have the advantage of evidence from two very experienced traffic engineering consultants and from the respondent's own traffic engineer. Mr. Eppell (called by the respondent by election) was concerned that on-site carparking was obviously inadequate for some funerals that will occur and that kerbside parking was inevitable. He felt that this may impact on the operation of other existing businesses and possible future business activity. As Mr. Beard (called by the appellant) demonstrated, the reality is that there are ample and under-utilised opportunities for kerbside carparking in the area. A generously dimensioned indented carparking area which has a 19-20 car capacity is located on the opposite side of Fourth Avenue. Further along -- 6 of 8 -- 6 fourth Avenue in front of the Cotton Tree sports field there is a similar indented carpark that could accommodate up to 60 vehicles. It may be that these spaces might be of limited utility for the frail or infirm but it does not follow that these spaces should therefore be discounted entirely. The evidence is that this area which is about 100 metres from the subject land at its nearest point is rarely used. Unrestricted parallel carparking space is available in Fourth Avenue, in Richards street and in Kingsford Smith Parade. on Mr. Beard's assessment, approximately 100 on-street carparking spaces are available within walking distance of the subject land. Attention was drawn to data which indicated the numbers of persons in vehicles attracted to funerals at other facilities in other places. However the evidence here indicated that the seating capacity of this chapel will be limited by condition to 40 persons. A venue for a funeral is, after all, a matter of family choice and the reality appears to me to be that funerals conducted at the chapel would be unlikely to be large. Even if 60 persons attended and on average only 2 mourners occupied each vehicle, the limitation of on-site parking would result in a shortfall of about 20 carparking spaces. Furthermore the evidence which I accept was that there will be probably only one or two funerals each week in the foreseeable future and that these will occur outside the periods of heavy traffic activity in this area. Mr. Beard stated that it was difficult to imagine this land (with its commercial zoning) being realistically developed in a way that would produce less traffic generation. -- 7 of 8 -- 7 Questions were raised about the capacity and safety of the intersection of Fourth Avenue and Aerodrome Road. These expressed concerns were recognised, but discounted as being relevant to this proposal by Mr. Beard. Evidence of the occurrence of accidents at the intersection was given, but details of these occurrences and the reasons for them were not comprehensively dealt with. I am not able on the evidence to make any finding that activity associated with this proposal is likely to lead to more accidents at this intersection. It appears that the operation of the intersection is presently being examined in a study in which Mr. Eppell is involved as a consultant. An approval of this proposal is no doubt a factor that would need to be taken into account in this study as would likely future development of other commercially zoned land in the area. On the evidence however it does not appear that this approval in itself would call for any intersection upgrading or that any intersection difficulties would warrant the proposal's rejection. It is noted that funeral processions are becoming increasingly infrequent these days and if they are required it is intended that any proposed route be first approved by the local superintendent of traffic. I have concludednon the evidence that there are no matters associated with parking or traffic generation which would warrant this proposal's rejection. In all of the circumstances I find that the onus of showing that the application should be approved has been discharged. The appeal is allowed. -- 8 of 8 --