Al-Mabarat Benevolent Society Limited v Goulburn Mulwaree Council [2018] NSWLEC 1261

Al-Mabarat Benevolent Society Limited v Goulburn Mulwaree Council [2018] NSWLEC 1261

The proposed development, as presented in the amended development application, includes features and facilities that extend beyond the permissible definition of a 'cemetery' under the Goulburn Mulwaree Local Environment Plan 2009. The proposed Service Hall and wake room are not restricted to memorial services and are capable of prohibited uses such as funeral home, mortuary, or place of public worship. The permissibility of development must be determined at the time consent is granted, and prohibited uses cannot be made permissible by imposing conditions or deferring decision-making. Accordingly, the development is not permissible under the applicable planning instrument.

Parties
Applicant: Al-Mabarat Benevolent Society Limited; Respondent: Goulburn Mulwaree Council
Jurisdiction
Australia
Judgment Date
30 May 2018
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
Development Application, Permissibility of Land Use, Characterisation of Development, Interpretation of Local Environmental Plan
Planning and Environment Development Application Permissibility of Land Use Characterisation of Development Interpretation of Local Environmental Plan

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Parties

Al-Mabarat Benevolent Society Limited

Applicant

Goulburn Mulwaree Council

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the proposed development is permissible under the Goulburn Mulwaree Local Environment Plan 2009 as a cemetery
  2. 2 Whether the Court has jurisdiction in the absence of a species impact statement for threatened species

Ratio Decidendi

The proposed development, as presented in the amended development application, includes features and facilities that extend beyond the permissible definition of a 'cemetery' under the Goulburn Mulwaree Local Environment Plan 2009. The proposed Service Hall and wake room are not restricted to memorial services and are capable of prohibited uses such as funeral home, mortuary, or place of public worship. The permissibility of development must be determined at the time consent is granted, and prohibited uses cannot be made permissible by imposing conditions or deferring decision-making. Accordingly, the development is not permissible under the applicable planning instrument.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The Exhibits are to be returned.