58 It is important to note in proceedings such as these that the standard which I am obliged to impose and to assess an application against is acceptability. In shorthand terms, that means, in my view, the attainment of what one might describe as a 50.001% pass mark rather than the achievement of absolute perfection in compliance with the objectives of a zone.
59 The test therefore is "Is the use consistent with the objectives of the zone and will it, to an acceptable level, achieve compliance with them?"
60 I am satisfied, under these circumstances, that both of those questions can be answered in the affirmative. Whilst these applications might not lead to the achievement of a complete revegetation and reinstatement of the property to the pristine condition that might have existed at the end of the 1970s, I consider that an acceptable degree of revegetation will be achieved.
61 The Department is concerned, as it sets out in its letter and as the Council has raised, the question of whether this is an undesirable precedent or not.
62 A number of submissions have been made to me concerning the likelihood of this happening on other sites; the number of other sites that might be available for this to occur and whether, in fact, there are other locations in the hinterland of the Council's area (or perhaps even, by analogy, in the hinterland of other Councils' areas in the vicinity) where there may be dwellings of an unlawful nature that have not been detected for a very long period of time.
63 I am satisfied that, in summary, the proposition that arises from decisions of this Court concerning precedent is, as most recently and frequently cited, that of Goldin v The Minister for Transport and the Minister Administering the Waterways Legislation [2002] 121 LGERA 101 where Lloyd J discussed the earlier authoritative decisions and summarised the position with respect to arguments of precedent.
64 I propose to further summarise my understanding of His Honour's conclusion which essentially is that, if a development is acceptable, it can be a precedent for future acceptable applications and, if it is unacceptable, it should be a precedent for rejecting a present unacceptable development application and be a precedent for the refusal of future unacceptable development applications.
65 In this case, I am satisfied, on balance, that the present application is acceptable and compliant with the relevant provision of the zone objective to which I have turned my attention.
66 In addition, a number of provisions are called up by cll 37 and 38 of the LEP.
67 Cl 37, in particular at cl 37(1)(e), requires that I have regard effectively to the objectives of identifying an area of land as an area of high conservation value (which is the case for the present property) so as to exclude activities which would prejudice the ongoing conservation or rehabilitation of land which is land covered by 37(1)(a).
68 Cl 37(1)(c) effectively repeats the provisions of the zone table to which I have earlier adverted concerning the regeneration of forests and eradication of vegetation.
69 I am satisfied, for the reasons that I enunciated with respect to sufficient satisfaction of the objective in the zone table, that there is sufficient satisfaction of those provisions, particularly the requirement for vegetation management and the removal of the ancillary structures (including the removal of the garage) as excluding activities which would otherwise prejudice the rehabilitation of the land by permitting its revegetation.
70 A number of matters are then called up by cl 38 of the LEP, a provision that deals specifically with the construction of dwellings in high conservation value areas. The first of those, which I will return to in more detail, is the question of minimum allotment sizes.
71 An SEPP 1 objection has been lodged to the requirement to comply with a minimum allotment size that would otherwise apply to this property by virtue of the provisions of cl 38(2) and the fact that it does not satisfy any of the criteria for minimum allotment sizes.
72 Before turning to that, I note that the provisions of cl 38(3) and 38(4) provide a number of matters that I must turn to before I can be satisfied that a dwelling should be permitted to be used (there being an existing dwelling on the property) and, if there were not an existing dwelling on the property, about which satisfaction would have to be achieved for permitting a dwelling to be erected.
73 Cl 38(3), which is in mandatory terms, provides that a consent authority, in this case the Court, shall not grant consent unless it is satisfied about a number of other matters that are there enumerated.
74 I turn to address the only one that Mr Moggach put as being in contention in these proceedings, which is 38(3)(e) that the amount of any vegetation proposed to be removed is as little as possible.
75 I am satisfied from the report of the bushfire experts that the amount of vegetation that is needed to be removed (that will be vegetation that fell in a category of being vegetation of high conservation value) is as little as possible for the proposed use.
76 It is true to note that the vegetation management plan proposed to be required will necessitate the removal of vegetation that is greater than the minimum amount of vegetation required to be removed but that that vegetation removal will be beneficial removal rather than adversely impacting removal. I am therefore satisfied that the removal of the weeds and the non-indigenous vegetation growing on the property does not act as a detriment pursuant to cl 39(3)(e).
77 I am satisfied, having been through all of the matters contained in cl 38(4), that, on the evidence of the flora and fauna experts, none of the matters there set out are transgressed by the application. I note, irreverently, that the provisions of cl 38(5) with respect to fish, crustaceans and molluscs were also not called into play by this application and I need not consider them.
78 I therefore turn to the question of the assessment of the application in the context of the objection lodged pursuant to SEPP 1.
79 Cl 38 of the LEP provides, relevantly, that, if a lot is an existing holding (subject to a number of exceptions that are not relevant in these proceedings), it must have a minimum area of not less than 20 ha for the Council to permit a dwelling house to be erected or, in this case, used.
80 The present allotment is an existing holding and I have evidence that it has been in existence since the middle of the 19th century as a separate allotment. It is 16.19 ha, being approximately 81% of the minimum required by the standard.
81 The planners, Ms Smyth for the Council and Mr Fletcher for the applicant, have considered the question of the SEPP 1 objection and compliance with the minimum allotment size. An earlier SEPP 1 objection lodged was clearly inadequate and a subsequent SEPP 1 objection prepared by Mr Fletcher has been admitted as the amended basis for this application.
82 The tests to be applied to compliance with the objectives of enabling such an objection to be sustained was set out by Lloyd J in Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46. His Honour posed the frequently quoted questions as being five.
83 First - Is the planning control in question a development standard? It is agreed between the experts that that is the case and that that standard arises from cl 38(2)(b).
84 Second, it is now accepted that the underlying objectives or purposes of the standard are, in my assessment, two. The first is to ensure compliance with the various environmental objectives to which I have adverted that are set out in cll 4 and 37 and then the objectives of the 7(e) zone in the land use table.
85 The next question to consider is whether compliance with the development standard is or is not consistent with the aims of the policy which is to provide flexibility in appropriate circumstances for giving variations and, in particular, does compliance with the standard tend to hinder the attainments of the object specified in ss 5A(1) and (2) of the Act.
86 I am satisfied, in this regard, that it is appropriate to consider the question of flexibility, particularly in the context where I am satisfied on the basis of the cadastral mapping and zone land use mapping in the area, that flexibility will not necessarily apply either as a precedent at all or, if it were to be a precedent, as any precedent of any possible significance.
87 Therefore, with respect to the orderly economic development and use of the land, insisting, in this instance, on the compliance with the minimum standard would hinder the attainment of such an objective in the provisions of the Act.
88 I then turn to the question of whether it would be unnecessary to require compliance with the development standard.
89 I am satisfied that it would be unreasonable to do so.
90 I am satisfied as to the lack of reasonableness because this is the only area where I am satisfied where it is appropriate to take into account the consequences of not permitting the use to continue with the beneficial conditions that are to be attached to it, that is beneficial conditions in terms of the revegetation, reafforestation and weed removal and non-indigenous plant removal that will necessarily follow.
91 If I were to conclude that the use was unsatisfactory and that all buildings were to be removed from the property, it necessarily follows that, no matter what the financial circumstances of the resultant owner of the property (and I make it clear that I am not having regard to the financial circumstances of the present owner of the property in making these comments), the property would effectively be rendered entirely without possible utilitarian value.
92 It would not be possible to erect a dwelling on it; any other possibility of use permitted according to the land use table would either be more intrusive or entirely unviable.
93 If I were to require the removal of all structures on the property and thus effectively render the property unusable, there would be no basis upon which it would be reasonable to assume that any owner would undertake the beneficial steps that are otherwise to flow from a consent to use the house thus giving the positive elements of reafforestation, revegetation, weed and exotic species removal.
94 I am satisfied under those circumstances and the extremely limited circumstances of this case that it would be unreasonable to require compliance with the development standard.
95 I am, for all of the above reasons, therefore satisfied that the objection pursuant to SEPP 1 is well founded and such an objection should be sustained.
96 I then turn to the circumstances that are necessary to ensure that those things that would make such an objection sustainable are in fact achieved.
97 I am satisfied that if I were simply to grant an enduring consent for use it would not bring about certainty as to the circumstances that would render the SEPP1 objection sustainable.
98 I am satisfied that the appropriate way to approach the matter is to grant not an unlimited consent but a consent for a period of time subject to conditions. Those conditions are to be conditions that will require the implementation of the various matters required for building certificate compliance and the various matters that are necessary to ensure that the benefits that would flow consistent with the provisions of cl 37 and the objectives of the land use table are in fact achieved.
99 I am therefore satisfied that it would be appropriate to grant a development consent for the use of the property subject to conditions which development consent would be for a period of 15 months from the date of the orders to give effect to my decision.
100 These would provide, in addition, that a number of matters were required to be carried out as agreed by the representatives of the parties by the beginning of September of this year - that is matters relating to vehicle access and car parking; bushfire hazard reduction; demolition of the to be demolished structures and preparation of the vegetation management plan and its submission to the Council - a vegetation management plan that will be subject to the additional matters that I have outlined in this decision.
101 Second, the question of completion of the upgrading of the buildings to Level 3 construction standard is proposed on behalf of the applicant to be achieved within twelve months.
102 I am satisfied that the time limit which I have just outlined would enable that to be done and to have time for the applicant to lodge a further application to the Council, either pursuant to s 97 or s 96 of the Act, to enable the Council to assess whether the necessary prerequisite benefits which I have outlined as being the basis for upholding the SEPP1 objection have in fact been achieved. Such assessment would therefore provide a satisfactory basis for an ongoing or enduring consent or whether, if they were breached, the reasons that I have advanced for sustaining the present SEPP1 objection would fail to exist for some future objection for an ongoing and enduring consent.
103 For completeness I should turn to the question of the garage.
104 I am satisfied that the objectives of the land use table for the zone and those in cl 37 to which I have adverted, in the circumstances of this case, require the minimisation of the intrusion of development in order to maximise the ability of the property to achieve benefits consistent with the provisions of cl 37 and the land use table to which I have adverted.
105 I am satisfied that the discretionary addition of a building which is used, on the applicant's own evidence, solely for the purposes of providing a play space for her grandchildren who visit her now infrequently does not warrant setting aside the possible limitations that might arise on those revegetation and rehabilitation opportunities.
106 I therefore am satisfied that it would not be appropriate, as a matter of discretion on the second stage of the process upon which I have embarked, that is a consent to use, to grant a consent to use to that garage structure. That which is appropriate is a sole dwelling and an access to that dwelling with the maximised opportunity for beneficial environmental outcomes in the otherwise disturbed area surrounding it.
Applicant's submissions on costs