Dach v Kiama Council

Ireland v Cessnock City Council [1999] 110 LGERA 311; Jonah Pty Limited v Pittwater Council [2006] 144 LGERA 408; CASES CITED: Goldin v The Minister for Transport and the Minister Administering the Waterways Legislation [2002] 121 LGERA 101; Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46; .

APPLICANT Mr J Doyle, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Thomson Playford

RESPONDENT Mr P Moggach, solicitor Kearns & Garside

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions and the consequent granting of a building certificate after the development has been carried out. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONER: These are two appeals concerning a single property on Jamberoo Mountain to the west of Kiama and Jamberoo. It is toward the western boundary of the Kiama Council Local Government area and is on the upper slopes of the Jamberoo Valley escarpment. The property's address is 948 Jamberoo Road, Jamberoo (being Lot 176 DP751279) (the property).

2 A number of aerial photographs are in evidence which show that between 1948 and the end of the 1970s significant revegetation took place on the cleared area of the property.

3 Subsequent aerial photographs taken from 1988 onwards show varying degrees of clearing in the vicinity of the present dwelling site. A dwelling was erected on the property in the mid 1980s although there is a degree of uncertainty about the precise date of construction - however, nothing in particular turns on requiring precision in that regard.

4 The property has an area of 16.19 ha and has access from Jamberoo Mountain Road by way of a right of way over the adjacent property generally located to its east. That access way is generally at grade across the slope of both the adjacent property and the property. Erected on the property, in the cleared area, are a number of structures in varying states of repair. None of those structures has been erected with development consent.

5 The applicant in these proceedings is now the sole owner of the property. The applicant in these proceedings came to be the sole proprietor of the property as a consequence of a settlement in Family Court proceedings some eight or nine years ago, in a settlement under the Family Law Act (Cwth) with her former husband. 6 The applicant has given evidence in these proceedings that she was unaware that the erection of the dwelling and other structures on the property was done without Council approval. These were principally constructed by the efforts of her husband, a tradesman boilermaker by occupation (but with assistance from her and from other contracted tradespeople). This construction was carried out entirely without her making any inquiry of him as to whether or not the structures were either lawful or had been subject to the obtaining of the relevant development consent from the Council. 7 The existence of the dwelling and other structures came to the attention of the Council apparently no later than 1999 as a consequence of an application concerning the effluent disposal system on the property.

8 Some years later, the Council became aware that the structures had no development consent and sought to discuss with the applicant a process of regularisation or assessment of that which was located on the property, both as to its structural adequacy and as to questions of appropriateness and safety of the development.

9 That has led to three sets of proceedings being commenced in the Court, two of them are being dealt with by me, namely a building certificate application for some of the structures and an application for development consent for the continued use of those structures for which a building certificate is sought. Class 4 proceedings are presently commenced by the Council on a protective or precautionary basis and not yet substantively pursued by the Council. 10 I turn first to the question of the building certificate.

11 A building certificate is now sought to be granted for two structures on the property. The first is the house and what might be regarded as the associated pergola and barbecue area and the second is a garage structure located to the southwest of the southwestern corner of the house. 12 It is important to note, at this point, that, consistent with the matters discussed by Bignold J in Ireland v Cessnock City Council [1999] 110 LGERA 311, matters of culpability or moral turpitude for the development are not appropriate matters for my consideration in this Class of the Court's jurisdiction.

13 They may, on questions of discretion, arise to be matters considered by another member of this Court in a different class of the Court's jurisdiction but are not matters appropriate to be considered in these proceedings. 14 Having said that, it is also appropriate to note, in my view, that the applicant is the sole proprietor of the property, the applicant is sixty one years of age and is on a part aged pension. The applicant has no other residence and has, on her evidence, no other source of income or any other assets of significance. The applicant occupies herself, in part, by acting as a volunteer at the local HACC operation. 15 I am satisfied in these proceedings that whilst these might be matters which would be appropriate to be considered in Class 4 proceedings as a matter of discretion, they are matters that are not appropriate for me to consider when dealing with the planning issues that necessarily arise in the second of the applications before me for consent to use of the property.

16 I therefore exclude entirely what might be elements regarded on each of the sides of the scales of justice - namely the lengthy period of unauthorised use and development on one side and the personal circumstances of the applicant on the other side. In my assessment, I confine myself to a consideration of those matters which are required to be dealt with for consideration of the building certificate application and consideration of the development application for permission to use.

17 The applicant concedes that there are a number of structures on the property which are appropriate and desirable to be removed.

18 They are what are marked on a survey plan of the property as a greenhouse and a shed located generally to the north northwest of the house. There are, as also observed during the course of the site inspection, a variety of other elements randomly interspersed amongst the understorey on the property that might best be described as accidental detritus and there is, located immediately to the rear of the main dwelling, a large garden shed type structure which is painted in green and blue stripes. Finally, there is a structure (now tipped on its side) constructed by the applicant's former husband and located in the vicinity of a dam which had been constructed, again I infer without consent, generally to the northwest of the house site.

19 All of those ancillary structures and the assorted elements of detritus dispersed around the property are agreed by the applicant as warranting removal. The applicant agrees, through her barrister, Mr Doyle, that if the building certificate and development consent are granted that it is appropriate to require the removal of those within a specified period of time.

20 I turn, therefore, immediately, to the question of what tests are to be applied with respect to the building certificate applications for the two elements that are proposed by the applicant to be consented to in this regard.

21 Bignold J proposed, in Ireland, the adoption of a two stage process. Effectively, in these proceedings, those two stages are embodied by the two separate applications requiring determination.

22 The first stage in his Honour's consideration, a process consistently followed in this jurisdiction after that decision, is to determine whether or not the structures for which a certificate is sought are structurally sound for the purposes for which they are proposed to be used or whether it is possible to render them structurally sound and sound in other respects for those purposes if they are not already in such a state.

23 In this application, it is clear that each of those structures does not presently satisfy the relevant standard that would be necessary to meet an acceptable level of bushfire protection for any habitable use of those buildings.

24 Each of the structures would require upgrading to meet Level 3 construction standard to comply with Australian Standard 3959.

25 However, I have in evidence structural certificates from an appropriately qualified structural engineer, Mr G Reilly of Bilkey Reilly & Associates Pty Limited, that each of the two structures is capable of being brought to the appropriate standard.

26 In addition, as to fitness for use as opposed to appropriateness for use, I have a joint bushfire expert's report which records that, subject to that upgrading and to the designation and preparation to the appropriate requirements for inner and outer asset protection zones, such asset protection zones can be established which would render both structures appropriate for use if use were to be permitted.

27 Finally, in this regard, I have a certification from those joint bushfire experts that a number of comparatively minor matters are required to be undertaken to the access road and, if they were to be undertaken as part of the list of matters to be undertaken, "A level of bushfire protection consistent with Planning for Bushfire Protection 2001 is achieved and an adequate level of bushfire protection is also achieved".

28 I am therefore satisfied that there are no matters of a technical nature that would preclude the issuing of a building certificate for each of those two structures, subject to conditions requiring the works that are proposed to Level 3 construction standards as earlier mentioned.

29 Having reached that conclusion, it is then appropriate to turn to and consider the question of whether the use of either or both of those structures should be permitted and, if so, on what basis.

30 As with my earlier dealing with the question of what I was not going to consider or contemplate, it is appropriate to note at this point that during the course of the hearings I asked the parties if they would consider and address me on the topic of whether, given the personal circumstances of the applicant, it might be appropriate to grant some form of consent for use that in effect provided a life tenancy for the applicant whilst ever she was fit and able to occupy the premises.

31 I also asked, because the Director General of the Department of Planning had expressed a view (about the suitability of the permission of granting consent to use) that was in opposition to such consent to use, whether the Department had a view on that point.

32 I have in evidence correspondence which Mr Moggach, solicitor for the Council, has sent to the Department at my request and the Department's reply. I should record at this stage the final substantive paragraph of the Department's reply. It is in these terms: "The Department does not wish to see Ms Dach evicted from her home at this time. However nor does the Department consider that the subject land is suitable for a dwelling house. This is a difficult situation in which a satisfactory social and emotional outcome is at odds with an appropriate planning outcome. The Department would be supportive of a solution, if it can be legally achieved, which allows Ms Dach to remain in her house but would require the dwelling and associated buildings to be demolished upon cessation of occupation by Ms Dach or the sale of the land".

33 Mr Moggach put the proposition to me that it would be inappropriate to adopt a condition effectively granting a life tenancy during continued occupation to the applicant. However, consistent with my request to him, he drafted a clause which would so provide if I were minded to impose such a condition.

34 I am satisfied, on reflection, that, setting aside the matters of the social circumstances of Ms Dach as I believe I am required to do so, to impose a condition effectively giving a life tenancy during continued occupation to Ms Dach would in effect be creating a consent in personam when it is quite clear that the legislative intention of the Environmental Planning & Assessment Act 1979 (the Act) is that such consents would be in rem and that to create an in personam consent would be entirely inconsistent with a long line of authority in this Court concerning in rem development consents.

35 I have therefore concluded that the only appropriate alternatives for me to consider are either the refusal of the use application simpliciter for either or both of the structures; the granting of an unlimited and enduring consent simpliciter or, if it were appropriate, the granting of a consent for one or other or both of the structures for a limited period of time during which certain things should be required to be undertaken.

36 I have reached the conclusion that the third of those courses of action is the appropriate course to follow.

37 I will shortly turn to explaining why I have reached that conclusion in the context of the provisions of the Kiama Local Environmental Plan 1996 (the LEP) because it is against that instrument and against the provisions of State Environmental Planning Policy No 1 (SEPP 1) (with respect to an objection to compliance with the minimum allotment size) that I am obliged to undertake my assessment.

38 However, I think at this stage I should set out the basis upon which I consider that a limited time period use should be permitted and what would be the consequences of that.

39 First, I am satisfied that it would be appropriate to grant a consent for the use of the dwelling.

40 Second, I am not satisfied that it would be appropriate to grant a consent for the use of the garage structure.

41 Third, I am satisfied that the requirements of a vegetation management plan as envisaged by the joint report of the flora and fauna experts and as canvassed in the Council's without prejudice conditions of consent (at conditions 41 and following) should be subject to a number of specific requirements in addition to those set out in the Council's conditions of consent.

42 These, I believe, are necessary to ensure that future use is consistent with the relevant provisions of the LEP to a sufficient extent of satisfaction - both to ensure an acceptable degree of compliance and to render it unreasonable, under all the circumstances, not to uphold the objection to the minimum allotment size pursuant to SEPP 1. 43 To achieve this would require that the vegetation management plan not merely deal with the identification of invasive species and weed control and the like but would involve the identification of all non-native species that have been introduced in the vicinity of the dwelling (with the possible necessary exception of retaining a lawn area which would otherwise fit within the prohibition that I have just enunciated), to ensure that those non-native species are also to be removed over time as part of the vegetation management plan and that the local vegetation outside the area of the various asset protection zone restrictions should be permitted to revegetate to as near to natural indigenous plant conditions as possible. 44 Such vegetation as will be permitted to remain within the asset protection zones should also be indigenous, endemic vegetation rather than exotic species. 45 Having said that, it is also appropriate to note that I am satisfied I should impose a condition concerning an occupation certificate in the form proposed by the Council that no part of the dwelling house shall be occupied unless an occupation certificate has been issued in terms of the consent. 46 To do that, in my view, imposes an additional layer of obligation on the applicant to make sure, whilst she is remaining lawfully compliant, that there is a prompt and appropriate response to the undertaking of the relevant works. 47 I turn first to the question of the appropriateness of permitting the development when assessed against the objectives of the LEP before turning to the question of the SEPP 1 objection to compliance with the relevant minimum allotment size development standard. 48 The two broad aims and objectives of the LEP are relevant and are called up by cl 41 of the LEP. They are cl 41(b), "To preserve the essence of the special qualities of the Council's area", and cl 41(c), "To manage, develop and conserve the natural and built resources within the Council's area". 49 In furtherance of those, it is appropriate to note that in cl 9(2) of the LEP creates the requirement for compliance with the objectives of the zone within which a proposed development is to be undertaken.

50 Before enumerating the terms of those objectives, it is appropriate to note, in the context of this application, that the development that is proposed is not the erection of the house or any of the past activities associated with the erection of the house (including the removal of vegetation, construction of the access road, benching of the property, construction of the dam and the like), but is the activities proposed to be associated with the ongoing use of the property on the basis that those elements are already there. 51 That approach, that is assessing the likely continuing or arising aspects of the development for which consent is sought, is consistent with the approach taken by Preston CJ in Jonah Pty Limited v Pittwater Council [2006] 144 LGERA 408 at para 38 on p 416. 52 I record that the property is zoned 7(e) Rural Environmental Protection Hinterland and a number of objectives are set out in the land use control table for it. It is to be noted that dwellings are permitted with consent in this zone. 53 The objectives of the zone are: (a) to maintain the environmental attributes of the hinterland environment,

(b) to preserve intact rainforests and promote the regeneration of rainforest areas,

(c) to preserve areas of significant vegetation stands and to promote the regeneration of forests and eradication of introduced vegetation which competes with native flora,

(d) to protect varieties of wildlife and their associated habitats and corridors

and then a number of other objectives that are not specifically necessary to be considered in these proceedings.

54 The principal one of those objectives that arises is that of (c), preserving the areas of significant vegetation stands and promoting the regeneration of forests and eradication of introduced vegetation which competes with native flora. 55 Total removal of all the development on the property would, I am satisfied, over time, lead to revegetation with vegetation cover essentially to the form and in the broad vegetation cover fashion evinced by the transition between the 1940s aerial photograph and the late 1970s aerial photograph. 56 Removal of the structures in their entirety and the imposition of conditions or orders pursuant, for example, to s 121B of the Act requiring the removal of all exotic plants, weeds and the like, would achieve such a perfect outcome if it were capable of being achieved. 57 However I am satisfied that the nature of the orders and conditions that are proposed to be attached to the application for use will satisfy the eradication of introduced vegetation which competes with native flora - particularly if the conditions require the removal of all non-indigenously endemic and exotic vegetation and its replacement over time with such vegetation. This will encourage reafforestation, regeneration of the forests in the areas where that is capable of being achieved.

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

107 COMMISSIONER: I am unable to deal with the question of costs in this appeal as I am precluded from doing so by a combination of the rules and the fact that the Chief Judge's delegation to me of responsibility for hearing and determining these two appeals expressly removed the question of me making any determination from costs pursuant to s 69(8) of the Land and Environment Court Act 1979, a discretion which in any event would have been subject to the concurrence of the Chief Judge. 108 I do, however, note, because of my familiarity with costs decisions in this jurisdiction that, as neither party has obtained the totality of that which they have sought in these proceedings, it would be unlikely, in my assessment, that any costs order would flow from the outcome of these proceedings if any party sought to agitate this issue. Tim Moore Commissioner of the Court

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