CITATION:
Eileen Cavanagh Nominees Pty Ltd v Development Consent Authority
NT LMT 49
PARTIES:
EILEEN CAVANAGH NOMINEES PTY LTD
ACN 059 836 264
v
DEVELOPMENT CONSENT AUTHORITY
TITLE OF COURT
LANDS AND MINING TRIBUNAL
JURISDICTION:
LANDS AND MINING TRIBUNAL ACT
FILE NO(s):
LMT-49-2001-P (20116035)
DELIVERED ON:
17 January 2002
DELIVERED AT:
DARWIN
HEARING DATE(s):
Not applicable
DECISION OF:
D LOADMAN, CHAIRPERSON
CATCHWORDS:
FUNERAL PARLOUR – “CHAPEL” – NO DESIGNATION OF AREA AS
“CHAPEL” ON APPLICATION FOR CONSENT 1992 – CONSEQUENCE OF
ABSENCE OF DESIGNATION – APPLICATION OCCASIONED BY INTERNAL RE ARRANGEMENT FOR PURPOSES OF UNIT TITLE ACT – CONDITION
PROHIBITING CHAPEL (AND OR VIEWING ROOM) – APPLICATION FOR
VARIATION
Lands and Mining Tribunal Act NT
Planning Act NT
REPRESENTATION:
Appellant:
Respondent:
Judgment category classification:
Judgment ID number:
Number of paragraphs:
June D’Rozario & Associates Pty Ltd
Self
B
NT LMT 49
50
IN THE LANDS AND MINING TRIBUNAL
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. LMT-49-2001-P (20116035)
BETWEEN:
EILEEN CAVANAGH NOMINEES PTY
LTD
ACN 069 036 264
Appellant
AND:
DEVELOPMENT CONSENT
AUTHORITY
Respondent
DECISION
(Delivered 17 January 2001)
Mr David LOADMAN, CHAIRPERSON
HISTORY
1.
In May 2001 the appellants applied to the Development Consent Authority
(“DCA”) for approval for internal alterations to the three warehouses and
funeral parlour at Lot 1941 (No 6) Charles Street, Darwin (“the land”). A
Development Permit was issued with conditions. The appellants applied to
vary a condition of that development permit.
2.
On 24 September 2001 the DCA issued a document entitled Variation of
Conditions, which reads:
Consent is hereby granted, pursuant to section 57(3) of the Planning Act, to
vary a condition of DP01/0278, the variation resulting in the development not
being substantially different from the development originally permitted.
Variation
1
Alter condition 5 to read: There is to be no chapel on -site and viewing is to be
restricted to a maximum of 6 persons on -site at any one time, excluding staff.
Development is to be in accordance with drawing number 99024/S1/A.
As provided for under section 3 of the Act and subject to the provisions of
sections 58 and 59, this permit will lapse two years from the date of issue of the
original permit. In all other respects DP01/0278 remains unchanged.”
3.
On 16 October 2001 the appellants lodged a Notice of Appeal at the Lands
and Mining Tribunal pursuant to section 116 of the Planning Act (“PA”).
The background and grounds of appeal as set out in the Notice of Appeal are
as follows:
1. RELEVANT BACKGROUND
1.1. In 1992, the appellant established the business of a funeral parlour at Unit
4 Lot 1941 Town of Darwin (6 Charles Street) pursuant to an Instrument of
Determination DV4484 issued under a previous Planning Act. A copy of IOD
DV4484 is at Annexure 1.
1.2. Lot 1941 is owned by Robiden Pty Ltd.
1.3. Lot 1941 contains three other units, constructed as warehouses. A plan of
the units is at Annexure 2.
1.4. In May 2001, the owner applied to the Development Consent Authority for
approval for internal alterations to the three warehouses and funeral parlour
situated at Lot 1941. The purpose of the application was to facilitate unit titlin g
of the four units.
1.5. In the case of the appellants premises, the alteration related to the
construction of an internal wall within the space originally included as "existing
workshop" on the plan appended to IOD DV4484, to enclose an office of 24 m 2 .
This office replaced the space shown as "existing office" of 23 m 2 in IOD
DV4484, which space has been used by the appellant as a room in which to
display caskets, and as a viewing room and chapel.
1.6. In response to the owner's application, the Authority issued Development
Permit DP01/0278, dated 11 July 2001, with a schedule of conditions, including
Condition 5 which states : "There is to be no chapel or viewing area on the
site.". A copy of DPO1/0278 is at Annexure 3.
1.7. The appellant applied, under s 57(1) of the Planning Act, to have the
condition deleted. A copy of the application is at Annexure 4.
1.8. The appellant was provided with an Assessment Report by Development
Assessment Services of the Department of Lands, Planning and Environment,
stating that the proposal (to retain a viewing room/chapel) complied fully with all
the relevant clauses of the Darwin Town Plan. A copy of the Assessment Report
is at Annexure 5.
2
1.9. In response to the application, the Authority issued a Variation of
Conditions DPOI/0278A, which altered Condition 5 to read: "There is to be no
chapel on-site and viewing is to be restricted to a maximum of 6 persons on -site
at any one time, excluding staff.". A copy of DPO1/0278A is at Annexure 6.
1.10. Pursuant to s 116(1), the appellant appeals against the Authority's refusal
to vary Condition 5 in accordance with the application.
2 . GROUNDS OF THE APPEAL
2.1. The Authority should have made a determination in accordance with the
application because2. 1.1. The appellants 1992 development permit (IOD DV 4484), to operate a
funeral parlour from the premises, should not be impaired by reason only that
the appellant altered the office space in its funeral parlour.
2.1.2. The alteration to the office space in the appellants funeral parlour did not
increase the total floor space of the premises, and was merely a reassignment
of floor space within the total space used as a funeral parlour.
2.1.3. Provision of a chapel and viewing room is consistent with the essential
nature of a funeral parlour, which the appellant is authorised to operate
pursuant to IOD DV 4484.
2.1.4. A chapel is specifically included within the definition of funeral parlour, as
that term is defined in the Darwin Town Plan.
2.1.5. The room referred to as a chapel is the same room as the viewing room,
and the room constitutes a chapel only by the addition of candles and religious
objects, and the presence of a cleric in the company of the bereaved.
2.1.6. The facility complies in all respects with the Darwin Town Plan.
4.
Pursuant to section 121 of PA, a mediation conference was fixed by this
Tribunal to commence on 5 November 2001.
5.
On 26 November 2001, a Notice under section 127 PA was received from
the appellants advising that a compromise or settlement had not been
reached. Further that the appellants wished the matter to be determined by
the Tribunal. The parties were accordingly instructed by the Tribunal to
provide written submissions as directed
PRELIMINARY FINDINGS OF THE TRIBUNAL
6.
In terms of paragraph 1.5 of the Notice of Appeal, it is apparent that the
initial determination in IOD DV4484 issued under PA, permitted the usage
3
of 23 square metres of the internal space as “existing office”. In terms of
the paragraph the appellant asserts that the space “has been used by the
appellant as a room in which to which to display caskets, and as a viewing
room and chapel”.
7.
In simplistic terms due to internal re-arrangement said to have been
occasioned by need to facilitate unit titling inter alia of the premises the
subject of this appeal, the “existing office” is sought to be is sought to be
expanded in area to 24 square metres and therefore in itself was a variation
in area terms of the so-called “existing office”(by 1
8.
m 2 ),
The history prior to the application or the decision on the application which
has led to the current appeal is apparent from the Notice of Appeal.
9.
Prior to the meeting of the DCA on 4 September 2001 at which the decision
was made giving rise to the current appeal, the appellant was provided with
an Assessment Report dated 23 August 2001 as set out in paragraph 1.8 of
the Notice of Appeal (“Assessment Report”). That Assessment Report
concludes:
“The Proposal fully complies with all of the relevant clauses of the
Darwin Town Plan 1990”.
10.
Tabled at the meeting of the DCA on 4 September 2001 was Agenda Item
17 which is a summary of the relevant application before the Authority,
prepared by Development Assessment Services (“Agenda Item 17”). The
salient parts of Agenda Item 17 in this Tribunal’s perception that need
recitation is the fact of the objection referred to at paragraph (e).
“(e)
any submissions made under section 49 in relation to the development
application
One written submission was received at the completion of the original application and
a copy is at Attachment E. The submission is from the owner of an automotive repairs
business from Lot 1940 (4) Charles Street, Stuart Park. The submission objects to the
application for the following reasons:
•
the conducting of memorial services from the fu neral parlour has a negative
impact on staff and clients of the motor repairs business on Lot 1942;
4
•
Presley Street is light industrial and therefore not an appropriate location for
a funeral parlour; and
•
the funeral parlour creates a traffic, pedestria n and car parking hazard in
Presley Street which adversely impacts on clients and staff of the motor repairs
business on Lot 1942.
11.
In relation to that submission, the fact of the matter as appears from the
Agenda Item 17, is that the usage is within the parameters of the initial
permit and PA applicable from time to time. Prime facie it does not seem to
this Tribunal that any of the grounds of objection are valid grounds upon
which to refuse the dispensation sought from DCA by the appellant.
12.
The Tribunal observes that if a usage is permitted under PA and all the
conditions relating to the permitted usage satisfy all statutory requirements,
the fact that the carrying out of any permitted use in complete accordance
with statutory requirements is an irritant or perceived to be of an adverse
nature in relation to some adjacent or contiguous business, is an utterly and
totally irrelevant consideration when considering an application such as the
present.
13.
The Development Assessment Services recommendation in Agenda Item 17
is in the following terms:
RECOMMENDATION
That, pursuant to section 57(3) of the Planning Act, the Authority grants consent
to the application to vary Development Permit number DP01/0278 for the
purpose of deleting Condition 5 and allowing a viewing room/chapel, as part of
the funeral parlour in accordance with drawing numbered 99024 S1.
14.
It is significant to observe that the recommendation was to delete the
condition, the subject of the application, and to allow specifically utilisation
of the existing so-called “existing office” as “a viewing room/chapel”.
There is reference to the drawing number 99024 S1.
Reasons are given and
are set out in the following terms:
REASONS FOR THE DECISION
1.
The funeral parlour complies with the relevant cl auses of the Darwin
Town Plan 1990 (as amended).
2.
A funeral parlour is considered to be a compatible use in the locality.
5
15.
Again, the appellant was entitled to expect in this Tribunal’s perception that
if there was going to be some suggestion that the Ass essment Report in its
terms was inappropriate, incorrect or likely not to be followed, it behoved
the DCA to put the appellants on notice of those facts. The resolution of the
DCA is set out above in this decision.
SUBMISSIONS
16.
On 10 December 2001 the Tribunal received the appellants’ submissions in
terms of section 128(1) PA (“appellants’ submissions”), the relevant
material therein being set out below:
1. The appellants 1992 development permit (IOD DV 4484), to operate a
funeral parlour from the premise s, should not be impaired by reason only
that the appellant altered the office space in its funeral parlour.
a) As outlined in the background to this case, the May 2001 development
application by the owner was made to facilitate unit titling. The appellant is not
in a position to comment about the Authority's statement in relation to the other
three units, outlined in its letter of 21 March 2001 (pp 27 - 28), but in the case
of the appellants premises, it is submitted that the statement that IOD DV4484
had "expired" was plainly wrong.
b) It is submitted that IOD DV4484 continues under s 165(2) of the Planning Act
1999, by which provision IOD DV4484 is taken to be a development permit.
c) The circumstances in which a development permit can cease to have effe ct
are
(1) if the permit lapsed, or
(2) if it was revoked; or
(3) if it contained a time limit condition.
d) Antecedent Planning Acts of 1979, under which IOD DV4484 was issued, and
1993, specified the period within which a permit had to be acted on. This period
was generally two years, unless extended. IOD DV 4484 was issued on 5 March
1992, and a Certificate of Occupancy was issued under the Building Act on 15
May 1992. A copy is at p 33. As the use commenced within two years of the
date of the IOD, the permit did not lapse.
e) The Planning Acts of 1979 and 1993, contained provisions under which the
Minister could revoke a permit. Similar provisions are in the present Act.
However, IOD DV4484 was not revoked.
f) The conditions applied to IOD DV4484 are s et out in the permit at pp 6 - 8.
There is no condition which limits the time during which the authorised use may
continue.
6
g) So, as IOD DV4484 did not lapse and was not revoked, and contains no time
limit condition, it continues to be effective under s 1 65(2) of the Planning Act
1999.
h) IOD DV4484 was issued for the purpose of a "funeral parlour in accordance
with drawing number EC I". "Funeral parlour" was defined then, as it is now, in
the Darwin Town Plan as : "means a building used for the storage or preparation
for burial or cremation of human bodies, and includes a funeral chapel
associated with it.". i) The Darwin Town Plan required then, as now, the
provision of 5 car parking spaces per 100 m 2 of floor space used as a chapel.
j) Drawing Number EC1 showed a floor plan of what was a workshop of about
150 m 2 , with an office in one corner and a W C in another, into which a
reception, mortuary and new W C were drawn. A copy of Drawing Number EC1 is
at p 9 .
k) The Certificate of Occupancy (p 33) of 15 May 1992 stated that the building
work in respect of the building, "being a funeral parlour only", had been
completed and that it was fit for occupation for this purpose. The specifications
listed on the certificate also stated "funeral parlour only".
l) From the Certificate of Occupancy, it is clear that no workshop was to operate
from these premises, even though the words "existing workshop" appeared in
Drawing No EC I, and that the only authorised use of the premises was for
funeral parlour.
m) As there was neither the intention, nor the authorisation by either IOD
DV4484 or the Certificate of Occupancy, to use any part of the premises as a
workshop, the draftsman's chosen method of showing a workshop partitioned
into various spaces labelled "mortuary", "new reception" etc is of little
importance. Except for the necessity to show the floor space to be used as a
chapel for the purpose of determining the number of parking spaces required by
the Darwin Town Plan, he could just as validly have labelled the remain der of
the floor space as "funeral parlour".
n) It is submitted that the then NT Planning Authority, which issued IOD
DV4484, interpreted Drawing No EC 1 in accordance with the intention of the
applicant to convert an existing workshop to a funeral parlour , and consented
accordingly.
o) The appellants argument is that, on the definition of a "funeral parlour" and
particularly the word "includes" within it, a funeral chapel is comprehended as
part of a funeral parlour, and that the term "funeral parlour" is to be treated as
comprising a funeral chapel - see also "include" in the Concise Oxford
Dictionary. Therefore, the appellant says that it was not necessary to state
explicitly that its funeral parlour would include a funeral chapel, and that, in the
absence of any explicit exclusion of a funeral chapel in IOD DV4484, the then
NT Planning Authority consented to a funeral parlour as defined in the Darwin
Town Plan, subject to providing 5 parking spaces per 100 m 2 of floor area used
as a chapel.
p) In the case of the appellants premises, the owner's application of May 2001
was only for consent to an internal wall to enclose an office of 24 m 2 . The
appellants argument is that the only issues which the Authority is required to
satisfy itself about are whether the office is part of a funeral parlour, and
whether it has triggered a requirement for additional parking which cannot be
met on the site. The office is clearly part of the funeral parlour business, and no
additional requirement for parking spaces arises fro m it as it is not floor space
7
used as a chapel. Therefore, as the 1992 permit IOD DV4484 continues in
effect, the appellant says that it is not open to the Authority to revisit whether
the appellants operation, or parts of it, are compatible or appropriate in the
locality or to impair that permit by requiring the removal of the chapel or limiting
the number of people who can attend viewings of deceased persons.
q) The only action to be taken to comply with the Unit Titles Act is to line mark
the car parking spaces to comply with Condition 3 of IOD DV4484. It is
submitted that, as this matter is easily remedied, it is insufficient to vitiate the
permit.
2 . The alteration to the office space in the appellants funeral parlour did
not increase the total floor space of the premises, and was merely a
reassignment of floor space within the total space used as a funeral
parlour.
a) As submitted above, the appellants premises were approved in 1992 as a
funeral parlour without limitation on a chapel, subject to the re quirement to
provide 5 car parking spaces for each 100 m 2 of floor space used as the chapel.
b) The plan annexed to IOD DV4484 showed an office of approximately 22 m 2 ,
which the appellant occasionally uses as a chapel. A space of approximately 24
m 2 , adjoining the parlour's mortuary, was enclosed to provide an office to
conduct the funeral parlour business. As IOD DV4484 authorised the use of the
whole of Unit 4 as a funeral parlour, it does not matter how the space within the
building is partitioned as long as the activities conducted therein answer the
description of funeral parlour. Indeed, there remains a space of about 24 m 2 ,
between the "loading bay" shown on the plan annexed to the subject application
and the rear wall of the building, which has no defined use, and the business
would still comply with IOD DV4484 if this space were also enclosed for an
office, mortuary or any other purpose ordinarily associated with the business of
a funeral parlour. The only factor which would make a difference to the
compliance of the business with the original permit is if the floor area used as a
chapel exceeded the number of parking spaces which could be provided at the
premises. The Darwin Town Plan calls for 5 spaces per 100 m 2 , and as there
are 4 outdoor parking spaces, the appellant could use up to 80 m 2 of floor space
as a chapel and still comply.
c) The appellants argument is that the assignment of floor space for an office
from which to run the business should not have triggered imposition of
conditions aimed at restricting the operation of the business because the office
does not expand the business or change its nature.
3 . Provision of a chapel and viewing room is consistent with the essential
nature of a funeral parlour, which the appellant is authorised to operate
pursuant to IOD DV 4484; and
4 . A chapel is specifically included within the definition of funeral parlour,
as that term is defined in the Darwin Town Plan.
a) These grounds of appeal and the Authority's Reason for Decision 2 are
related and are dealt with together.
b) As submitted earlier in this statement, the specific terms of the definition of
"funeral parlour" in the Darwin Town Plan indicates that a funeral chapel is
comprehended as part of a funeral parlour, and the term "funeral parlour" i s to
be treated as comprising a funeral chapel. The appellants argument is that a
8
funeral parlour was approved in 1992, that the permit is still effective, and that it
is not open to the Authority to separate the chapel from the rest of the
business's operation.
c) Regarding the activity of viewing the deceased, the Authority's Reason 2
makes no mention of this. However, it is assumed that the Authority relied on
"parking problems" to limit the number of people attending the premises for this
purpose.
d) The appellants argument is that viewing the deceased is an observance
normally associated with funeral rites, and consequently falls within the scope
of services offered by a funeral parlour. The appellant says that she is
authorised to operate a funeral par lour; the authorisation conferred by IOD
DV4484 is not diminished by the consent sought for a small office; and that
consequently, it is not open to the Authority to limit the number of people who
attend for viewings.
e) The appellant also says that the sp ace used for viewing is small - only 22 m 2
-and that the physical dimensions of the space limit the number of people who
can occupy it. The space can comfortably accommodate 15 mourners.
f) Beyond the physical limitations of the space, the appellant inform ed the
Authority that she takes other steps to manage visitors to the site - see the
Authority's summary of discussion at the hearing of 4 September 2001 at p 32,
and the appellants letter of 28 June 2001 to the Authority at pp 34 - 36. In these
statements, the appellant informed the Authority that she does not actively
promote chapel services at her premises, preferring to organise services at
local churches or at Thorak Chapel, and that she does not host large gatherings
of mourners at her premises. The a ppellant informed the Authority that, apart
from one occasion, the size of the group does not usually exceed 12 people. On
a few occasions, up to 15 people may attend. On the one occasion that a large
group gathered at the site, the deceased person was a y oung Philippino man
who had died in controversial circumstances, and his deeply mourning extended
family and friends attended the appellants premises in larger numbers than had
been arranged.
g) W hilst the appellant takes steps to limit the number of peopl e who attend her
premises, and these steps are generally effective, it is unrealistic for her to
enforce a limit when she is dealing with bereaved people.
h) Although the appellant informed the Authority that chapel services are
conducted infrequently, these services are important to the families that request
them, and the appellant says that she would lose the business of these families
if the permit denied them access to a chapel at her premises. The appellants
argument is that, as she is properly authori sed to operate a funeral parlour
within the meaning of the Darwin Town Plan, the Authority's attempt to restrict
her business is arbitrary.
i) As to the number of 6 mourners, specified by the Authority, the appellants
argument is that there is no valid fou ndation for this number. If the Authority's
reasoning is based upon the parking problems of the locality, the appellant says
that the parking applicable to a funeral parlour is based on the floor space used
as a chapel and not on the number of people who a ttend a viewing or a service.
As the Authority has already determined that the funeral parlour complies with
the Darwin Town Plan, including the parking provisions of the Plan, the
imposition of a limit on the number of mourners is arbitrary and unsustaina ble.
9
j) Regarding the Authority's Reason 2, that a chapel would likely exacerbate
parking problems, it is submitted that the Authority's approach to a business
which complies with current parking requirements is unfair. The appellant gave
detailed information about parking problems in the area in her written and oral
submissions to the Authority - see for example pp 34 - 36. Her account is
consistent with statements in a letter to her from Darwin City Council on 4
February 1998 (pp 37 - 38), wherein the Cou ncil says
"Unfortunately, much of the development within Presley Street was established
at a time when on-site car parking and loading facilities were not required as a
condition of development.".
k) This observation is also consistent with the report to t he Authority from
Development Assessment Services at pp 39 - 47. There it was reported at pp 44
- 45 that
(1) "W ith a lack of parking associated with the W estralia Street shops, Presley
Street often becomes an overspill area for all day parking." and
(2) "[M]otor repairs and panel beating tend to occupy a considerable number of
on-street parking bays because the businesses only have a small amount of
on-site parking bays." and
(3) "During an inspection of Presley Street, .... [o]ther vehicles associated wit h
a motor repair station were illegally parked within the road reserve.".
l) The appellants argument is that as her business complies with the current
parking requirements, and this is acknowledged by the Authority, it is unfair on
the part of the Authorit y to attempt to restrict her business to remedy parking
problems of businesses which were established under older parking regimes
and against which no restrictions can be applied.
m) Regarding the Authority's Reason 2 that a chapel is not considered
appropriate as the applicant advised it is rarely used, the appellant says this is
illogical because if the chapel is rarely used, it will rarely cause a problem. In
any case, the appellant repeats the argument that IOD DV4484 remains in force.
5 . The room referred to as a chapel is the same room as the viewing room,
and the room constitutes a chapel only by the addition of candles and
religious objects, and the presence of a cleric in the company of the
bereaved.
a) W hilst the appellant refers to having a chape l at her premises, the space
referred to is a room in which viewings (without any religious rites) are also
held. The room is not fitted with the permanent fittings customarily associated
with chapels, such as altar, pews, prie -dieu, religious statuary and the like. Nor
are liturgical services conducted. W hen chapel services are required, chairs are
set out in the room, additional flowers and candle stands are brought in, and
various religious objects may be displayed. The only other feature which
distinguishes a chapel service from an ordinary viewing is the presence of a
cleric or other celebrant conducting a religious rite.
b) The features which distinguish an ordinary viewing from a chapel service are
slight, and a viewing could easily become a chapel se rvice, say by a celebrant
saying prayers beside the casket of the deceased. The appellants argument is
that it would be oppressive in the extreme to require her to control at this
marginal level the manner in which the deceased are commemorated.
10
c) Due to the dual purpose served by the room in question, the appellant says
that prohibiting a chapel on the premises may also put at risk her right to
conduct viewings in the room.
d) The appellant repeats the submissions that her 1992 permit cannot be
vitiated in this arbitrary way.
17.
On 10 December 2001 the Tribunal received the respondent’s submissions in
terms of section 128(2) PA (“DCA submission), the relevant material therein
being set out below:
Authority comment
[addressing the points in the appellants gr ounds of appeal]
2. W ith regards to 1(i), Instrument of Determination DV4484 dated 5 March 1992
grants consent to the application to develop Lot 1941 Charles Street, Town of
Darwin for a funeral parlour in accordance with drawing number EC1, endorsed
by the Chairman of the then Northern Territory Planning Authority. A copy of
Instrument DV4484 including drawing EC1 is at Attachment A. The endorsed
drawing shows the internal layout of Unit 4 consisting of a workshop, reception,
office, mortuary and toilets .
As no chapel was proposed in the application for a funeral parlour in 1992 the
car parking requirements were assessed under Clause 21.4 (Parking Assessed
by Authority) of the Darwin Town Plan 1990. The parking area shown in drawing
EC1 can accommodate 4 car parking spaces and this was deemed by the
Authority to be sufficient for the proposed use as a funeral parlour, without an
associated chapel.
3. W ith regards to 1(ii), an application was requested by the Development
Consent Authority for the additions of a display viewing room and office to the
funeral parlour. Drawing PA01/0253/1 (Attachment B) which forms part of
DP01/0278 shows an office addition within the area previously shown as
"workshop" on drawing EC1 of Instrument of Determination
C DV4484, and
a "display/chapel/viewing room" which was shown as an office in the previous
approval. These changes constitute an increase in the intensity and size of the
funeral parlour.
4. W ith regards to 1(iii), as stated in 2 above, the original application for a
funeral parlour did not include a chapel or viewing room and therefore the use
of the former office for these purposes is inconsistent with the endorsed drawing
of the approval. If the appellant wished to provide viewings of the deceased and
chapels services on the site then this should have been included in the original
application. The application lodged on 25 February 1992 (Attachment C) applies
for consent to use the land for the purposes of "using existing built factory unit
No.4 as new reception and m ortuary room".
5. W ith regards to 1(iv), a funeral parlour is defined in the Darwin Town Plan
1990 (as amended) (Attachment D) as "a building used for the storage or
preparation for burial or cremation of human bodies, and includes a funeral
chapel associated with it". The definition of funeral parlour in the Town Plan
does not preclude a funeral parlour from operating without a chapel. Rather, a
funeral parlour may include a chapel but the a funeral parlour is not dependant
on having a chapel.
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6. W ith regards to 1(v), the difference between the room being set up as a
chapel and a viewing room is relevant in relation to potential numbers of
persons attending.
SECTION 51 OF THE PLANNING ACT 1999 - MATTERS TO BE TAKEN INTO
ACCOUNT
Following is an assessment and discussion of the proposal in accordance with
the matters to be taken into account pursuant to section 51 of the Planning Act
1999:
(a) the Planning Scheme as it applies to the land to which the application
relates
Land Use Objectives
The land is within the Stuart Park Locality of the Central Darwin Land Use
Objectives 1996 (Attachment E). The objectives for Stuart Park include the
retention of the existing residential inner suburb of low to medium density
housing. The strip of commercial uses along the S tuart Highway is recognised
as an acceptable use in the locality. There are no land use objectives that
specifically apply to Lot 1941.
Development Provisions
A funeral parlour requires the consent of the Authority in the B3 (Highway
Commercial) zone subject to the relevant control clauses the Darwin Town Plan
1990 (as amended).
The application complies with all of the relevant clauses of the Town Plan. A full
assessment report is at Attachment F.
Incorporated Documents
The land is within the Stuart Park Pr ecinct of the Central Darwin Planning
Concepts and Development Opportunities 1996 (Attachment G). Planning
concepts for Stuart Park encourage the relocation of industrial uses, such as
panel beating/spray painting workshops and other incompatible industrie s, to
designated industrial areas outside Central Darwin. There have been no
proposed amendments to the NT Planning Scheme Development Provisions to
implement these concepts in the Stuart Park Precinct.
(b)
any proposed amendments to the Planning Scheme -
None applicable.
(c)
an interim development control order in respect of the subject land
None applicable.
(d)
an environment protection objective within the meaning of the Waste
Management and Pollution Control Act that is relevant to the land to which the
application relates
None applicable.
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(e)
any submissions made under section 49 in relation to the development
application
One written submission was received at the completion of the original
application and a copy is at Attachment H. The submission is fr om the owner of
an automotive repairs business from Lot 1940 (4) Charles Street, Stuart Park.
The submission objects to the application for the following reasons:
•
the conducting of memorial services from the funeral parlour has a
negative impact on staff and clients of the motor repairs business on Lot 1942;
•
Presley Street is light industrial and therefore not an appropriate location
for a funeral parlour; and
•
the funeral parlour creates a traffic, pedestrian and car parking hazard in
Presley Street which adversely impacts on clients and staff of the motor repairs
business on Lot 1942.
An additional submission by Mr Leo Cleanthous (Attachment I) was tabled at the
Development Consent Authority meeting on 4 September 2001. Mr Cleanthous
is the owner of Lots 2283 and 2284 (5 and 7) W estralia Street, Stuart Park and
these lots have a frontage to Presley Street. The submission objects to the
application on the grounds of insufficient car parking provision on -site,
insufficient facilities on -site for visitors, traffic and pedestrian conflicts and the
use is inappropriate in the locality.
A submission was received from Darwin City Council (Attachment J). Council
object to the proposed variation on the grounds that the additional
chapel/viewing room requires a waiver to the car parking requirements and that
a funeral parlour is inconsistent with the desired outcome of the Stuart Park
Shopping Centre Development Strategy to provide adequate on and off street
car parking without impacting on user amenity.
(f)
a matter that the Minister has, under section 85, directed it to
consider in relation to development applications generally
None applicable.
(g)
any public environmental report or environmental impact statement
prepared under the Environmental Assessment Act in relation to the
proposed development and any assessment of the report or statement by
the Minister administering that Act
None applicable.
(h)
the merits of the proposed development as demonstrated in the
application
The application does not demonstrate a ny special merit.
(j)
the capability of the land to which the proposed development relates to
support the proposed development and the effect of the development on the
land and on other land, the physical characteristics of which may be affected by
the development
13
There is concern that there are not sufficient car parking spaces on -site to
accommodate visitors to the funeral parlour for viewings or chapel services.
The applicant provided the following information during a site inspection by a
planning officer of the Department of Infrastructure, Planning and Environment:
• the mortuary can accommodate three bodies at any one time;
•
chapel and viewing services are offered but are limited by the number of
people that intend to attend;
• a maximum of 12 people is expected for a chapel service; and
• a maximum of 6 people is expected for a viewing;
There are four visitor parking bays on -site and the applicant has said that there
are a maximum of 12 visitors to the site at any one time. The applicant has
explained that the isolated incidents of parking conflict in Presley Street was the
result of people misunderstanding that funeral services were being held at the
funeral parlour. However, the application does not demonstrate how the
business will be restricted to a maximum of 12 visitors on the site for chapel
services or viewings at any one time.
Presley Street is a cul-de-sac with a variety of businesses such as a laundrette,
motor repairs, vehicle sales yard, panel beaters and warehouses. Presley Street
also provides access to the rear of the W estralia Street shops. Unit 3 of Lot
1941 is currently vacant. There are 20 on -street parking bays in Presley Street
limited to one hour and one loading zone limited to 15 minutes. Darwin City
Council has observed that par king problems in Presley Street are usually due to
the number and type of businesses operating in the street.
For example, motor repairs and panel beating tend to occupy a considerable
number of on-street parking bays because the businesses only have a sma ll
amount of on-site car parking bays. W hen some tenancies in Presley Street are
vacant, there is less use of on -street parking bays. During an inspection of
Presley Street, three cars associated with the neighbouring panel beater were
parked in the parking area of a vacant tenancy. Other vehicles associated with a
motor repair station were illegally parked within the road reserve.
There are six car parking spaces provided on -site, two of which are located
within the workshop/loading area of the tenancy and are used for parking the
hearse and by the director of the funeral parlour. Four car parking bays is not
sufficient for a potential maximum of 12 people (the applicants maximum
number) on the site for chapel services at any one time. It is possible that u p to
30 people could attend a chapel service on the site at any one time, if the
applicant does not limit the number of people attending services on site.
However, the applicant has stated that there are not expected to be more than
six people at any one time for the viewings and the car parking facilities on site
could accommodate six visitors to the site. A condition of development consent
could restrict the number of people attending viewings on -site.
(k)
the public facilities or public open space availa ble in the area in
which the land is situated and the requirement, if any, for the facilities, or
land suitable for public recreation, to be provided by the developer
No public open space facilities are required for the existing development.
14
(m)
the public utilities or infrastructure provided in the area in which
the land is situated, the requirement for public facilities and services to be
connected to the land and the requirement, if any, for those facilities,
infrastructure or land to be provided by the developer for that purpose
The proposal was circulated to Darwin City Council, Power and W ater Authority
and Department of Health and Community Services for comment.
Power
The property is provided with limited capacity supply and any new development
that requires additional power supply will be subject to negotiations with the
Authority.
W ater
W ater and sewer reticulation is available and the property is currently serviced.
Any upgrade required of the existing services will be at the developer's expense
and to the standards of the Authority.
Council
Should the application be approved, Council (Attachment J) requests that a
number of conditions be placed on permit relating to kerb crossovers,
stormwater drainage, a monetary contribution in lieu of car parking on-site,
development adjacent to easements and waste bin storage and collection.
Department of Health and Community Services
The Department (Attachment K) advise that the funeral parlour will need to be
certified that it complies with the Building Code of Australia.
(n)
the potential impact on the existing and future amenity of the area
in which the land is situated
The written submission received from the tenant of 4 Charles Street, Stuart Park
details occasions when the funeral parlour has held large mem orial services
from the site and there have been considerable negative impacts of this activity
on the adjoining businesses.
(p) the public interest
Not applicable.
(q)
in the case of a proposed subdivision of land on which a building is
situated - whether the building will cease to comply with the Building Act if the
proposed development were to proceed
None applicable.
(r)
any potential impact on natural, social, cultural or heritage values
There are no perceived impacts on natural, social, cultural or h eritage values as
a result of the proposal.
15
(s)
any beneficial uses, quality standards, criteria, or objectives, that are
declared under section 73 of the W ater Act
None applicable.
(t)
other matters it thinks fit
None.
CONCLUSION
That the Authority does not support the application by Eileen Cavenagh to
delete Condition 5 of Development Permit DP01/0278 and to allow for a room in
the funeral parlour to be used as a chapel and viewing of the deceased (without
restrictions on the number of people attending vi ewings) for the following
reasons:
1.
There are insufficient car parking bays provided on -site for the proposed
use of the land as a funeral parlour with a chapel and unrestricted viewing
room.
2.
The proposal has the potential to adversely impact on the a menity of the
adjoining properties and surrounding area by increased vehicle and pedestrian
traffic on Presley Street.
SUBMISSIONS IN REPLY PURSUANT TO SECTION 128(3) PA
18.
On 18 December 2001 the appellants filed submissions in reply in terms of
section 128(3) PA (“appellants’ 128(3) submissions”). The relevant
material is set out below.
1. W HETHER CHAPEL INCLUDED IN 1992 APPROVAL
1.1. The appellant does not agree with the Authority's submission (at p 2
paragraphs 3 & 4) that the "display/chapel/viewing roo m" was not approved by
the 1992 consent, and the Authority's reliance on the words used on the
prescribed form lodged on 25 February 1992.
1.2. It does not matter what term was used by the applicant in 1992 to describe
the use. The incontrovertible fact is that the then consent authority used the
term "funeral parlour" to describe both what was applied for (see the first
paragraph of IOD DV4484), and what it approved (second paragraph).
1.3. The then authority was entitled to look behind the words used by t he
applicant to determine the use being applied for, and to characterise it as a
funeral parlour. That the then authority did not restrict the consent to "new
reception and mortuary room" does not vitiate the consent given by IOD
DV4484.
16
1.4. Once the then authority applied the term "funeral parlour" to the
development, the development took on the meaning ascribed to "funeral parlour"
in the Darwin Town Plan.
1.5. The appellant notes the Authority's submission that: "The definition of
funeral parlour [.....] does not preclude a funeral parlour from operating without
a chapel. Rather, a funeral parlour may include a chapel but the funeral parlour
is not dependant on having a chapel.". The appellants point is that the chapel
cannot be excluded because a chapel associated with a funeral parlour is taken
to be part of the funeral parlour, and the term "funeral parlour" is to be treated
as comprising a funeral chapel.
1.6. The Authority's submission suggests that, because a funeral parlour can
operate without a chapel, a chapel is not necessarily part of a funeral parlour;
and following from that proposition, the chapel in this case was not approved
when the 1992 consent for funeral parlour was given. The appellant disagrees
with this approach, and says that the wo rd "includes" in the definition expands
the definition rather than restricts it as the Authority suggests.
1.7. The appellant says that the approach which should be adopted to the word
"includes" has been stated in Boans Ltd v Kwinana Hub Shopping Centre (1981)
45 LGRA 369 at 378 by the Supreme Court of W estern Australia, and in Lawlor
v Melbourne & Metropolitan Board of W orks (1976) 10 VPAD 107 at 113 by the
Victorian Town Planning Appeals Tribunal.
1.8. In Boans, the court said : "[in my view] the word "include" in the context in
which it appears in the definition of "lot" is not to be construed as a term of
limitation; `it means what is says - that it includes the matters thereafter
mentioned; in other words it is a word of enlargement rather than or rest riction':
per McCardie J. in Mellows v Low 1 KB 522, at p 526.'.".
1.9. In Lawlor, the Tribunal said: "The Oxford Dictionary meaning of "include" in
a relevant sense is "to contain as a member of an aggregate or a constituent
part of a whole". This word is very generally used in interpretation to enlarge a
meaning of other words and is not in general used as a word of limitation. ".
1.10. The statements at p 6 paragraphs m) to o) of the appellants section 128(1)
submission are consistent with these interpre tations of statutory definitions. The
appellant repeats its previous submissions that the consent authority consented
in 1992 to a funeral parlour as defined in the Darwin Town Plan.
2. CAR PARKING ISSUES
2.1. The appellant notes the Authority's statement at pp 1 - 2 paragraph 2 that
the car parking requirements were assessed under clause 21.4 of the Darwin
Town Plan because no chapel was proposed in the application for a funeral
parlour in 1992. This is non sequitur, but of more importance is that clause 2 1.4
cannot be applied, even if there is any evidence that this occurred.
2.2. Clause 21.4 requires the Authority to determined the number of car parking
spaces required for a development which is not listed in the table to clause
21.1. The authority clearl y consented to a funeral parlour in its IOD DV4484,
and funeral parlour is listed in the table to clause 21.1. Therefore, clause 21.4
does not apply.
2.3. The parking requirements for a funeral parlour are set out in clause 21.1,
and require 5 spaces for each 100 m 2 of net floor space used for a chapel. It is
17
noted in passing that no other components of a funeral parlour are mentioned,
which reinforces the submission that a chapel is comprehended as part of a
funeral parlour. The parking requirement for the appellants premises is 2 spaces
as the chapel has floor space of only about 22 m 2 , and the appellants premises
met these requirements in 1992 and meets them now.
2.4. There is no valid basis for the Authority's position, articulated at p 5 of its
submission, that the parking requirement relates to the number of people who
attend the premises, when the Darwin Town Plan clearly relates the number of
spaces to floor area.
2.5. It is inconsistent for the Authority to persist with this position while also
admitting at p 3 that the application complies with all the requirements of the
Darwin Town Plan, including parking - see also Attachment F of the Authority's
submission.
2.6. The appellant relies on the objective test of parking adequacy provided by
clause 21.1, especially the stated objective of this clause : "to ensure that
developments provide sufficient off -street car parking to service the proposed
use.". The appellant says that by complying with the parking requirements of
clause 21.1, it has met this obj ective and the Authority has no basis for
imposing some other test.
3 . MERITS OF THE APPLICATION
3.1. The appellant disagrees with the Authority's submission at p 4 paragraph
(h) that the application does not demonstrate "any special merit". There is
nothing which requires the application to demonstrate "special merit". Section
51(h) requires the Authority to take into account the merits of the proposed
development as demonstrated in the application.
3.2. The Authority's submission indicates that it did no t do this, but instead
substituted an arbitrary test of "special merit", and an arbitrary test for parking
adequacy.
3.3. The Authority's submission is inconsistent with its finding that the
application complies fully with all the relevant clauses of the D arwin Town Plan
1990.
4. EFFECT ON AMENITY
4.1. The appellant disputes the Authority's claim at p 6 paragraph (n) that the
appellants large memorial services have caused considerable negative impacts
on adjoining businesses. First, the appellant questions the veracity of the claims
made by the person upon whose submission the Authority relies for its
conclusion - see pp 34 - 36 of the appellants s 128(10 submission.
4.2. Secondly, the appellant has consistently stated that she does not host large
memorial services at her premises, and apart from the single occasion on which
a large group gathered, no one has been able to identify another instance when
she is alleged to have conducted a large memorial service.
4.3. The appellant says that it is not acceptable for the Authority to uncritically
embrace the self -serving assessment of the objector, particularly when it has
acknowledged (p 5) that the City Council has attributed the parking problems in
Presley Street to the number and type of businesses operating i n it, and the
Authority has itself observed that motor repair and panel beating businesses
18
"occupy a considerable number of on -street parking bays because they have
only a small amount of on-site parking bays".
5. ORDER SOUGHT BY THE APPELLANT
5.1. The appellant repeats the request for an order that the Authority vary
Development Permit DP01/278 by deleting Condition 5 in accordance with the
appellants application.
19.
On 27 December 2001, the respondent filed submissions in reply in terms of
section 128(3) PA (DCA 128(3) submissions”), as set out below.
1. The appellant states (1 (a) on page 4 of the appellants 128(1) submission)
that a letter by the Authority dated 21 March 2001 refers to Instrument of
Determination DV4484 as expired. W hether this permit has expired or not is
irrelevant.
2. The appellant states (1 (h) on page 5 of the appellants 128(1) submission)
that Instrument of Determination DV4484 grants consent for a funeral parlour on
the site. The definition of funeral parlour in the Town Plan does no t preclude a
funeral parlour from operating without a chapel. Rather, a funeral parlour may
include a chapel but a funeral parlour is not dependant on having a chapel.
3. The appellant states (1 (I) on page 5 of the appellants 128(1) submission)
that drawing No. EC1 of DV4484 shows an area of the funeral parlour as being
classified as "workshop" and the appellant states that it is clear from the
Certificate of Occupancy that no workshop was to operate from the premises.
W hile DV4484 grants consent to use t he site for a funeral parlour, it is not
unreasonable for the Authority to think that a workshop could be a part of a
funeral parlour. For example, the workshop could be used to repair the hearse
or construct and repair coffins. If there was no intenti on to use that part of the
premises as a workshop, then it should not have been shown as such on the
plan?
4. The Authority disagrees with the appellants statement (1 (m) on page 6 of the
appellants 128(1) submission) that the partitioning of the funeral parlour into
areas for "mortuary" and "new reception" is of little importance. A description of
rooms within the premises is to establish the intensity of the use. In considering
the application to vary Development Permit DP01/0278 the Authority considered
the impact of the intensity of the use of the site in the context of car parking
provision.
5. The Authority disagrees with the appellants statement (1 (o) on page 6 of the
appellants 128(1) submission) that it was not necessary for the appellant to
state explicitly that the funeral parlour includes a chapel in DV4484. An
application for a funeral parlour should include details of any proposed chapel
or any other use for assessing car parking requirements on the land. As no
chapel was proposed in the application for a funeral parlour in 1992 the car
parking requirements were assessed under Clause 21.4 (Parking Assessed by
Authority) of the Darwin Town Plan 1990. The parking area shown in drawing
EC1 can accommodate 4 car parking spaces and this was deemed b y the
Authority to be sufficient for the proposed use as a funeral parlour, without an
associated chapel.
19
6. The appellants statement (1 (p) & (q) on page 6 of the appellants 128(1)
submission) that the owner's application of May 2001 was only for consent to an
internal wall to enclose an office is incorrect. The internal layout of the funeral
parlour was significantly altered from the approval and a viewing area was
proposed. It is the Authority's responsibility to request a development
application for the proposed changes and impose any restriction it thinks fit as a
result of its deliberations and consideration of those matter under section 51 of
the Planning Act.
7. The Authority disagrees with the appellants statement (2(a) on page 7 of the
appellants 128(1) submission) that the funeral parlour was approved in 1992
without limitation on a chapel. Just because the approved drawing did not show
a chapel does not mean that the funeral parlour includes a chapel, as explained
in point 2 above. Only those func tions designated for areas on any Development
Permit are consented by the DCA.
8. The Authority disagrees with the appellants statement (2(b) on page 7 of the
appellants 128(1) submission) that it does not matter how the space within the
building is partitioned as long as the activities conducted therein answer the
description of funeral parlour, for reasons raised in points 5 and 6 above.
9. The Authority disagrees with the appellants statement (3 & 4(b) on page 8 of
the appellants 128(1) submission) that the definition of funeral parlour includes
a chapel as explained in point 2 above.
10. The appellant states (3 & 4(c) on page 8 of the appellants 128(1)
submission) that it is assumed that the Authority relied on "parking problems" to
limit the number of people attending the premises for the purposes of viewing
the deceased. In considering the application, the Authority took into account the
car parking spaces on-site and the potential numbers of visitors attending
viewings on the premises.
11. The Authority disagrees with the appellants statement (3 & 4(d) on page 8 of
the appellants 128(1) submission) that viewing the deceased falls within the
scope of services offered by a funeral parlour and DV4484 allows a funeral
parlour to operate from the land. The a pproval DV4484 does not specify the use
of a room on the premises for viewing the deceased and such services can have
an impact on the use of the site by the number of visitors attending the
viewings. It is open to the Authority to limit the numbers of peo ple attending
viewings on the site as a result of consideration of matters under section 51 of
the Planning Act.
12. The Authority disagrees with the appellants statement (3 & 4(e) on page 8 of
the appellants 128(1) submission) that the physical dimensions of the room
used for viewing the deceased limit the number of people who can occupy it.
The appellant did not demonstrate to the Authority how the number of people
attending viewings might be limited to 15 people. The room could accommodate
more than 15 m ourners depending on the amount of furniture in the room
whether the people are sitting or standing and whether mourners overflow to the
outside areas.
13. The Authority disagrees with the appellants statement (3 & 4(g) on page 9 of
the appellants 128(1) submission) that the appellant takes steps to limit the
number of people who attend the premises. The Authority has not been provided
with any evidence of these steps.
14. The Authority disagrees with the appellants statement (3 & 4(h) on page 9 of
the appellants 128(1) submission) that the appellant is properly authorised to
20
operate a funeral parlour and the Authority's attempt to restrict her business is
arbitrary for reasons outlined in points 2, 5 and 6 above.
15. The Authority disagrees with the appella nts statement (3 & 4(i) on page 9 of
the appellants 128(1) submission) that the imposition of a limit on the number of
mourners is arbitrary and unsustainable. The Authority applied a more practical
method of calculating the parking demand and capacity on -site within section 51
of the Planning Act.
16. The Authority disagrees with the appellants statement (3 & 40) on page 9 of
the appellants 128(1) submission) that the Authority's approach to a business
which complies with current parking requirements is un fair. In having regard to
those matters listed under section 51 of the Planning Act the Authority
concluded that there is insufficient car parking on -site to cater for the proposed
use.
17. The Authority disagrees with the appellants statement (3 & 4(I) on page 10
of the appellants 128(1) submission) that it is unfair of the Authority to restrict
the funeral parlour business to remedy parking problems of other businesses in
the area. The Authority was not restricting the appellants business to remedy
parking problems in the area but the business is limited in scale by the number
of car parking spaces provided on -site.
18. The Authority disagrees with the appellants statement (5(a), (b) & (d) on
pages 10 and 11 of the appellants 128(1) submission) that the ro om constitutes
a chapel only by the addition of religious objects and the presence of a cleric in
the company of the bereaved. The appellant misses the point that the difference
between the room including external overflow being used as a chapel and a
viewing room is the potential number of people wishing to attend the site to
attend a viewing or service. The use of the room for these two purposes has a
bearing on whether there is sufficient parking spaces on -site to cater for the
visitors to the premises.
CONCLUSION
20.
The land is located with Zone B3 (Highway Commercial).
21.
At a meeting of the Authority then the Northern Territory Planning
Authority 1992 (“the Authority”), the Authority resolved to “consent to the
application to develop Lot 1941 Charles Street, Town of Darwin for the
purpose of a funeral parlour in accordance with Drawing No EC1, endorsed
by the Chairman and subject to the following considerations :”. [Tribunal’s
underlining].
22.
The Instrument of Determination by the Authority is number DV4484 and is
signed by JM Robertson on 5 March 1992.
21
23.
The drawing EC1 is attachment A4 to the DCA submissions. On that
drawing in respect of that portion of the proposed development to comprise
the business of the funeral parlour there is an endorsement under the typed
words “existing workshop” in longhand which reads “carpark”. To the
north of the area shown as “new reception” and terminating at the
delineating wall of Unit 1 appears to be some form of endorsement, the
document being a copy, it is not particularly clear.
24.
Annexure B to the same submission is the drawing which was the subject of
decision by DCA on 11 July 2001 for the grant of permit D01/0278, the
drawing bearing Drawing Number PA01/02531. On that document in the
area shown as “existing office” on Drawing No EC1 there is endorsed in
type “Display Room”. There is in handwriting endorsed “Chapel/Viewing”.
There is some form of manual circumscription of both those typewritten
legends.
25.
Attachment C of the DCA submissions appears to portion of th e application
for development consent in 1992 and the application is for consent to “use
the land for the purposes of using existing built factory unit no 4 as new
reception and mortuary room”. It is significant in the Tribunal’s perception
that there is no reference to ‘chapel’ or ‘viewing room’. It is of even greater
significance to note that no such legend in any part of Unit 4 appears on
EC1.
26.
The relevant portion of Darwin Town Plan 1990 (as amended) (“DTP”)
relating to parking is Clause 21.1 which (taken from the assessment report
F1 to the DCA submission) reads:
“21.1 (Parking Requirements)
Except with the consent of the DCA provision of car parking bays on site shall
be in accordance with the table to this clause.
27.
The table is not itself appended to the document and were it vital to
determine what the table contained the Tribunal would not proceed to
determine the outcome of the application without consideration of same.
22
That is in the Tribunal’s perception ultimately academic and the Tribunal
proceeds on the basis that the table dictates that the parking requirement for
funeral parlour is “5 spaces for every 100 square metres of net floor area
used as a chapel”. As a matter of pedantry the Tribunal accepts the
submission by the appellant that it was not appropriate for the Authority to
determine parking requirements by reference to some other clause. The
Tribunal’s perception is that the issue is academic and the Tribunal notes
that in any event pursuant to the relevant clause, consent of the DCA was
capable of being given in relation to some other number of parking spaces.
The physical creation of the parking spaces is in any event determined by
the Tribunal to be in accordance with all the legislative requirements
pertaining to parking places.
28.
Attachment J1 to the DCA submissions is a letter from the Darwin City
Council making assertions in relation to parking, but again because of
matters in which in the Tribunal’s perception make this issue somewhat
academic the Tribunal does not propose to descend to examining this issue
any further.
29.
On Drawing EC1, a copy of which is annexure 2 to the appellants’
submissions, the Tribunal notes that the endorsements referred to on the
document attached by DCA to its submissions and referred to at
paragraph 23 of these submissions, there are no manuscript endorsements of
a similar nature.
30.
What is unequivocal is that the portion of the premises of Unit 4 apparently
subsequent to 1992 approval which was used and maybe is used as a
chapel/viewing room, was quite clearly and unequivocally depicted to be
“existing office’. The Tribunal holds that notwithstanding the definition of
‘funeral parlour’ it is incumbent upon an applicant seeking consent to
specifically and depict with utter accuracy those portions to be or intended
to be utilised and the purposes which each portion is intended to fulfil.
23
This Tribunal holds that the Authority’s consent DV4484 was a consent to
the carrying out of a funeral parlour having the facilities depicted on EC1 as
Attachment 2 to the appellants’ submissions, referred to in paragraph 29 of
this decision above, and no other. There was never authority given for the
creation, establishment or utilisation of a ‘chapel’ or of a ‘viewing room’ or
of a dual purpose chapel/viewing room. There is nothing in this Tribunal’s
perception which turns upon the use which is unauthorised in the light of the
Tribunal’s finding which apparently endured from 1992 to 2001 of some
portion of the premises as a chapel, a viewing room, or a chapel/viewing
room. It remained an unauthorised activity and in this Tribunal’s perception
could have been prohibited or terminated by action of the Authority, or the
DCA, or the responsible person.
31.
Whilst the Tribunal is not certain of the date in early 2001, but probably in
March, the appellant applied to DCA for the issue of a Certificate of
Compliance with “a development permit”.
32.
As part of Annexure 6 to the appellants’ submissions there is a letter to the
appellant from DCA dated 21 March 2001. Dealing with the contents of
that letter, sequentially,
1. There is reference to a Development Permit DV2074 which the Tribunal
has no knowledge of. There is further reference to DV4484. At least
insofar as the latter is concerned, the allegation of expiration is untenable.
2. Ignoring the allegation of expiration, it is alleged there is a failure to
carry out the construction on the land in accordance with the “Permits” and
at item d)ii, it is asserted “the area approved as an Office is being used as a
“Chapel” which has not been approved”. That observation assuming it is
correct is valid. The office area was approved for office purposes only and
not for use as a chapel.
Rightly or wrongly in essence the letter concludes with a direction that “a
new and full application for development [will have to be lodged] and it will
24
need to be approved by the Development Consent Authority for all uses,
prior to any Certificate of Compliance being issued”.
33.
An application was accordingly made to the DCA and it would seem there
was a meeting of 5 June 2001 which a director of the appellant could not
attend, a consequence of which was the dispatch of appellants’ letter dated
28 June 2001 addressed to DCA (also part of Annexure 6 to the appellants
submission).
34.
On 11 July 2001 the Development Permit (DP/0278) was issued and that
document and its appurtenances are Annexure 3 of the appellants’
submissions. Pertinently in the schedule of conditions to the Development
Permit DP01/0278 it was specified inter alia “5. The re is to be no chapel or
viewing area on the site”.
35.
An application to vary DP01/0278 was then lodged with DCA together with
a letter dated 7 August 2001 addressed to the Chairman, DCA (Annexure 4
to the appellants’ submissions).
An Assessment Report of Development
Assessment Services of 23 August 2001 addressed to the appellant
(Annexure 5 of the appellants’ submissions) is misleading in the sense that
it postulates the existence of a valid chapel which is, as the Tribunal has
found, not correct, and insofar as it refers to parking spaces, the Tribunal
pays no regard to this document.
36.
On 4 September 2001 the DCA met to consider the application for variation.
Tabled at that meeting and part of Annexure 6 to the Appellants’
submissions is Agenda Item 17 already referred to in this decision. That
Agenda Item 17 document attributes to the appellant a statement “a chapel
service would no longer be conducted on the premises, but a
‘display/viewing room’ would be used for families to view the deceased and
to display coffins and funeral accessories”. It is unclear at what time that
alleged statement was made. The appellant does not now maintain that
position in any event.
25
37.
Agenda Item 17 recites the condition 5 to DP01/0278 which has already
been referred to in this decision and then recites the various criteria set out
in section 51 PA. Dealing with the merits of the proposed development it
recites matters that occurred during a site inspection on a date that is not
specified. Amongst the matters mentioned are references to a maximum of
12 people being expected for a chapel service and 6 people for a viewing.
38.
Under the heading “(j) the capability of the land ... to support the proposed
development" at Agenda Item 17 there is some recitation, part of which is in
relation to people attending for viewings or chapel services “this may be
controlled by restricting the number of people attending the funeral
parlour”.
39.
Under the hearing “Summary of Issues” in the Agenda Item 17, as an
alternative to another proposition, it is propounded “Alternatively, the
development consent could be conditional on a maximum number of visitors
on the street at any one time attending a chapel service or viewing”.
[Tribunal’s underlining].
40.
The Tribunal does not understand how it would be possible to embrace a
limitation of “visitors on the street”.
41.
The Minute of the meeting of the DCA on 4 September 2001 refers to David
Da Silva attending and to the unsigned statutory declaration attributed to
him. It is asserted at paragraph (h)(i) of this statutory declaration
In respect of paragraph 1 referring to car parking, EC [Eileen Cavanagh] points
out there is an error. Currently there are 6 car parking spaces at the premises
and were are in the process of marking out two further car p arks. All of the car
parks comply with the Australian standard. It is simply not correct for it to be
asserted by the Council that there is no room for addition car parking. Annexed
hereto and marked with the letter “B” is assessment report of Lands Pla nning
and Environment.
42.
It is to be noted that Annexure B to the DCA submissions (Drawing Title
Pa01/0253/1; Job no 99024 Sheet No 21 of 1 Dated April 01) bears the
word “chapel” but appended to the Development Permit issued 24 September
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2001 “chapel” does not appear on the plan. The decision of DCA however
was to alter condition 5 and that variation has been set out in paragraph 2 of
this decision.
43.
Firstly the Tribunal opines that if the utility of the office changing to a
display/viewing room is acceptable to the DCA, there firstly does not appear
to be any reason why the designated area should not also be described as a
chapel/display/viewing room.
44.
Secondly there is simply no reason given as to why the designation of that
area as a chapel in part or at all is repugnant to DCA. Assuming for the
moment that any limitation is otherwise valid and enforceable there can be
no justifiable reason for refusing to allow the designation of that same space
to bear the legend ‘chapel’ as part of the permitted use.
45.
It is asserted that the absence of being to so designate that area would have a
deleterious affect on the appellants business. There is nothing adduced by
the DCA to suggest that such a designation (that is “chapel”) would in any
way intensify or exacerbate the attendance of persons at the appellants place
of business. Although at paragraph 18 of the DCA section 128(3)
submissions, DCA suggests that there is an ascertained or ascertainable
difference between numbers of people who attend (a) a viewing r oom and
(b) a chapel/viewing room. There is nothing to support this statement.
Logically in this Tribunal’s perception there cannot be.
46.
The Tribunal upholds the appellants’ 128(3) submissions to the affect that
no special merit needed to be demonstrated by the appellant to succeed.
47.
It is a matter of regret to the Tribunal that the assertion made by Mr
Da Silva on 4 September 2001 was not in any way dealt with by the
appellants in any of their submissions and that may ultimately be
problematical because the Tribunal intends to proceed on that basis that Mr
Da Silva’s information to DCA was valid and correct.
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48.
DP01/0278A specifies its lapsing 2 years from the date of DPO1/0278. The
Tribunal considers that period of approximately 18 months from the handing
down of this decision approximately would be a sufficient period to allow
observation of the implementation of the decision of the Tribunal and
ascertain whether there are problems warranting some different treatment of
the permitted usage.
TRIBUNAL ORDERS
49.
In the circumstances, the appeal against the decision of the DCA on 4
September 2001 is upheld.
50.
The Tribunal directs that the DCA issue an amended Permit amending
DPO1/0278A dated 24 September 2001 in the following manner:
(i) delete after the word ‘Variation’ ..from “Alter condition” ... to “drawing
number 99024/S1/A”;
(ii) amend drawing number 99024/S1/A by adding to the designation
“display/viewing room” (and correcting the spelling of ‘viewing’) the word
“chapel” so that the plan is regarded as designating that area as an approved
chapel/display/viewing room;
(iii) in addition to the 6 car parking places located on the land, the appellant
is required to mark out 2 additional car parks, so that there a total of 8; the
marking out of such car parks to comply with the requirements of the
Darwin City Council, DCA and further to comply with the relevant
Australian Standard; further that one car park selected by the appellant be
designated a “disabled car park” for the use of disabled people.
Dated: 17 January 2002
DAVID LOADMAN
CHAIRPERSON
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