23 With regard to the precedent issues, reference was made to Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, where His Honour Justice Lloyd said :
28. A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs" . As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.
29. In the present case the Senior Commissioner noted (at par [42]) that the notion of precedent is treated with considerable caution by the Court. He also found as a fact that one approval would tend to lead inexorably to a further three over time. He also noted the existence of 25 lots that could be seen as benefiting from what seems likely to be an inevitable consequence of approvals in this location. Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality.
30. In Milner v Willoughby Municipal Council, Cripps J expressly adopted the observations of Sugerman J in Emmott . In Maxwell James Maxwell Pty Ltd v North Sydney Municipal Council, Stein J accepted that a precedent argument may be raised, albeit as an argument of the last resort, but did not refer to any authority for that statement. His Honour emphasised, as did Cripps J, that it is the merits of any particular development application that is important. In Dale v Maritime Services Board of New South Wales, Pearlman J followed the judgments of Cripps J in Milner and of Stein J in Maxwell James Maxwell Pty Ltd . In doing so it does not seem, from a reading of her Honour's judgment, that her Honour was departing from what Sugerman J said in Emmott , that forming the basis of the decision of Cripps J in Milner.
31. The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council , Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable". In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications.
32. In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration.