On 12 July 2019, the Independent Planning Commission (IPC) made its direction to the Sydney Western City Planning Panel for the refusal of the proposed Wallacia Memorial Park development.
As a former Wallacia resident, the principal of Stratos Lawyers supported the local community’s objections to the application on a pro-bono basis. We are pleased with the outcome and congratulate the Wallacia community on its sustained and successful objections to the application.
Background of the site
The subject site is predominately zoned environmentally protected land with parts of the site zoned rural. The site is immediately adjacent to the Wallacia village, which has a population of approximately 1,700 residents (source: 2016 census). Part of the site, formerly the Wallacia Golf Course, drains into tributaries of the Nepean River, and is known for endemic flooding in the region. Wallacia is located within the vicinity of the proposed Nancy Bird Walton Airport at Badgerys Creek.
Wallacia is located on the Nepean floodplains and against the foothills of the Blue Mountains. On this point, there is no other direction in which the village may expand. The application, if consented to, would have resulted in a burial site with 88,000 plots over an area of land exceeding the size of the village itself.
History of the application
The subject site was acquired by the applicant with the consent of the State Government. It was acquired around the time the State Government had intervened to prevent the conversion of a relatively nearby heritage site in Mulgoa, Fernhill, to a burial site.
The application was first lodged with Penrith City Council as the initial consenting authority. The Council’s view was that a drafting omission from the commencement of the Penrith Local Environmental Plan (Penrith LEP) resulted in cemeteries being listed as permissible within the Mulgoa Valley region. The Council took the matter to the State Government seeking an amendment to the Penrith LEP to prohibit cemeteries in the Mulgoa Valley region. That amendment was not progressed by the State Government, it seems, on the basis that a broader review into burial space was completed by the State Government. That findings of that review, if it were ever commenced, has not been published.
In an effort to expedite the determination of the application, the applicant referred the matter to the Sydney Western City Planning Panel (Planning Panel) on the basis it was an application of state significance and by reason of the time lapsed since the lodging of the application. Significant community objection was raised to the application at the public hearing conducted by the Planning Panel.
In the face of further delays encountered in the work of the Planning Panel, the Minister then referred the application to the IPC for determination.
Initially, the application included the provision for a crematorium. This was subsequently removed from the amended plans voluntarily by the applicant, CMCT, a Crown cemetery operator. Another major amendment to the application arose in relation to a second access point to the site from adjacent landowners from whom consent had not been obtained. There were also amendments that arose in relation to the removal of large 1.5 metre grave stones from prominent locations with high visual impact (in this instance, immediately adjacent to residential and commercial premises and along Park Road). It is beyond the scope of this article to fully discuss the procedural law aspects associated with the amendments to the application over time however interested readers may refer to the IPC’s report dated 12 July 2019 for guidance on how to approach such matters where applicable.
Once the matter was in the IPC’s hands, an assessment report was commissioned from the Department by the IPC. The assessment concluded, inter alia, that the development was in the public interests and the technical issues were capable of management with appropriate controls. That report was released in December 2018 in circumstances where it seems Penrith City Council was not notified of the work and findings of the Department.
The IPC’s work
Following the release of the Department’s assessment report, the IPC conducted a series of meetings with the applicant and Penrith City Council. Critically, during the meeting with Penrith City Council, it became apparent that there were significant elements of the application which were downplayed by the applicant and the Department. In particular, whilst the Department supported the positive elements of the application (in boosting burial capacity in Sydney), no specific regard was given to:
- the qualitative aspects affecting local character and sense of community
- access to recreational space
- the scale of the development
- accessibility to the public by distance and transport mode
- compatibility with surrounding land
These are what we would call the “qualitative aspects” of an application, which we think are more difficult to assess as they represent the externalisation of negative aspects of a development and therefore less likely to be addressed adequately, if at all, by an applicant. Consequently, an objective assessment of these factors would require a decision-maker to consider such issues having regard to public consultation and the local council.
To its credit, the IPC investigated public community and key stakeholder concerns by subsequently meeting with representatives from Infrastructure NSW and the Greater Sydney Commission.
Prior to the IPC publishing its findings, in February 2019 the Premier requested the Greater Sydney Commission commence a review of the strategic considerations for the location of burial space in Sydney. Notably, the Greater Sydney Commission’s remit did not involve a consideration of the merits of any particular site such as Wallacia or Varroville.
Analysis of the IPC’s written decision
On the technical merits of the site, it was expected the IPC would endorse the assessment of the Department. On such technical issues, we hold reservations as to the appropriateness of some of those conclusions, however, matters concerning expert assessments are outside the scope of this article and in any event it becomes unnecessary to traverse such issues given the conclusions of the IPC and its direction to the Planning Panel to refuse the application.
On a close read of the IPC’s written decision, it becomes apparent that the Penrith City Council’s views regarding the “sterilisation” of the site from its conversion to burial space was highly persuasive to the IPC, particularly having regard to the site’s proximity and scale of the development. Whilst it could be argued that sterilisation of land use occurs wherever burial space is approved, the IPC’s findings are specifically tied to the site itself and its proximity to the Wallacia village.
Overall, we think the IPC’s decision represent a fair outcome which appropriately acknowledges the need for key social infrastructure but balancing this need against the inherent site characteristics and geographic remoteness of the site from intended users of such a development. We think the decision will be helpful for both proponents and objectors of future burial sites.
We also think there would be greater benefit in future if greater provision for inter-agency and key stakeholder consultation is implemented for state significant developments. In saying this, we acknowledge the Greater Sydney Commission is due to release its report on the strategic considerations for the location of burial space in the second half of 2019.
This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article.