50 However, so expressed, this way is limited. It does not permit of a general inquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose): Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 441; North Sydney Municipal Council v Parlby , unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J at p 7; and Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 10-11.
51 The dispensing power under SEPP 1 also is not a general planning power to be used as an alternative to the plan making power under Part 3 of the Act to change existing planning provisions. An objection cannot be used as a means to effect general planning changes throughout a local government area (in circumvention of the procedures under Part 3 of the Act): Hooker-Rex Estates v Hornsby Shire Council , unreported, LEC No 10506 of 1982, 27 July 1983, Bignold J, at p 22; Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412; Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438 at 442; North Sydney Municipal Council v Parlby , unreported LEC No 10613 of 1985, 13 November 1986, Stein J at p 7; Colvest No. 27 Pty Ltd v Hastings Municipal Council , unreported, LEC No 10617 of 1986, 22 March 1988, Cripps J, pp 11-12; Legal and General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192 at 201-202 (affirmed (1990) 69 LGRA 201 at 203, 210); Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 99; Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001) at [113].
37 Clause 14(2) is a specific provision for the land included as Area B within Zone 1 Rural Conservation, which has distinctive and 'unusual' subdivision patterns. The standard has been a feature of the planning controls since at least 1977, and I must assume that it has a purpose. While it has not achieved consolidation of the 90 lots to which it applies, it has had the effect of concentrating ownership to four owners and maintaining low density of rural settlement. The section of Area B land in which the applicant's land is included is relatively close to Mulgoa Road and Mulgoa Village; it is apparent from the site view, however, that urban development in the area is concentrated in the narrow corridor of land along Mulgoa Road, with land on the roads leading off Mulgoa Road retaining their rural character. It is not the role of the court to enable the use of SEPP 1 to achieve a change to the planning controls.
38 In Precise Planning v Wollondilly Shire Council [2005] NSWLEC 339 Pain J considered the issue of precedent and cumulative effect in the context of a SEPP 1 objection:
41 Although the issue of precedent and cumulative impact were considered separately in argument and in the stated issues, they are clearly intimately connected as the primary reason why precedent is of concern is that one decision will lead to later decisions resulting in developments having adverse cumulative impacts. I therefore intend to deal with these two issues together.
42 Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 relied on Sugarman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177, where he said at 182:
It is sometimes contended that a proposed development, in itself unobjectionable, should not be allowed because it is likely to lead to others of a similar character and the totality would prove objectionable. That depends, inter alia, upon the existence of 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. Here it seems, as I have said, unlikely that all the hypothetical subdivisions shown on the plan tendered by the council would be sought. Applications must be considered on their own merits and it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition. In such a case as the present, if what originally appeared to be a mere possibility or chance turned out later to become a distinct possibility, there would be no reason why the council should not at that stage call a halt, if it should then appear proper to do so. Justice is not offended in these circumstances by the refusal of further applications calculated to lead to objectionable conditions after the granting of one or more earlier applications unobjectionable in themselves.
43 In Goldin Lloyd J analysed a number of decisions following Emmott which considered the issue of precedent in planning appeals. He notes at [31] and [32] that:
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.
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.
44 Applying Goldin to the slightly different circumstances before me, I accept that setting an adverse precedent through approval of a single application that is otherwise not objectionable, but is likely to lead to other approvals giving rise to adverse cumulative impacts, is a relevant matter to consider in relation to a SEPP 1 objection. The Department of Planning's Circular B1 clearly raises the need to take into account potential cumulative impacts when considering SEPP 1 objections.
39 Even if I were to accept the applicant's argument that the impact of the dwelling house, in terms of its built form, would be the same as the approved veterinary clinic (and thus might be considered to be "otherwise not objectionable"), I agree with the council that if the SEPP 1 objection is upheld there is the potential for similar applications to be made for the land within Area B. Leaving aside the council owned land, I am not persuaded that the potential additional dwelling opportunity is limited to the three dwelling houses on the land to the north of the applicant's land and land owned by the objectors, as suggested by Mr Hardy. There is already a Right of Carriageway over part of the 34 lots owned by the applicant, which would facilitate the construction of three dwelling houses on allotments of similar size to the site; and the allotments the site of the pending applications for a child care centre and a gallery could also potentially be the subject of applications for approval of a dwelling house. While Mr Hardy's evidence was that this is not the current intention of the applicant, there is nothing apparent in the topography or access to those allotments that would preclude such an application being made. Creation of a Right of Carriageway over part of the land immediately to the north of the applicant's and would also open up the potential for a further three dwelling houses.
40 For these reasons, I am not satisfied that the objection under SEPP 1 is well founded, and it should not be upheld. The consequence is that the proposed erection of a dwelling house cannot be approved. This means that it is unnecessary to deal with the merits of the proposal.
Orders
41 The Court orders:
1. The appeal is dismissed.
2. Development consent is refused to development application No 09/0314 for the erection of a dwelling house on Lots 21, 22, 23 and 24 DP 2721 known as No 341a Littlefields Road Mulgoa.
3. The exhibits are to be returned.