ACN 115 840 509 Pty Ltd v Kiama Municipal Council

[2006] NSWLEC 151

Reported Decision: (2006) 145 LGERA 147

Land and Environment Court

of New South Wales

CITATION:	ACN 115 840 509 Pty Limited v Kiama Municipal Council [2006] NSWLEC 151
PARTIES:	APPLICANT ACN 115 840 509 Pty Limited RESPONDENT Kiama Municipal Council
FILE NUMBER(S):	41524 of 2005
CORAM:	Preston CJ
KEY ISSUES:	Construction and Interpretation :- State Environmental Planning Policy (Seniors Living) 2004, cl 4(1)(a) - whether subject land "adjoins" land zoned primarily for urban purposes - highway road and railway track separating subject land and land zoned primarily for urban purposes - meaning of "adjoins" - sufficient that subject land is "near to" or is "neighbouring on" or is "in sufficient proximity to" the land zoned primarily for urban purposes - subject land held to "adjoin" within meaning of cl 4(1)(a), State Environmental Planning Policy (Seniors Living) 2004.
LEGISLATION CITED:	State Environmental Planning Policy (Seniors Living) 2004 cl 4(1)(a)
CASES CITED:	Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276; Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297; DEM (Aust) Pty Limited v Pittwater Council (2004) 136 LGERA 187; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Kingston v Keprose Pty Limited (1987) 11 NSWLR 404; Lightbound v Higher Bebington Local Board (1885) 16 QBD 577; McCamphill v Northern Ireland Railways [2003] NI Cty 1 (23 December 2003); Mightystream Ltd v Attorney-General [1982] HKCA 14 (21 January 1982); Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443; Pepperwood Ridge Pty Limited v Newcastle City Council [2005] NSWLEC 257 (29 July 2005); Re Hannigan Holdings Ltd [2000] 4 IR 369; [2000] 2 ILRM 438 (13 April 2000); Ware Urban District Council v Gaunt [1960] 3 All ER 778
DATES OF HEARING:	31/03/2006
EX TEMPORE JUDGMENT DATE:	03/31/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr C W McEwen SC SOLICITORS Wilshire Webb RESPONDENT Mr J A Ayling SC SOLICITORS Kearns & Garside

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

31 MARCH 2006

41524 of 2005

ACN 115 840 509 PTY LIMITED V KIAMA MUNICIPAL COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant in these Class 4 proceedings seeks a declaration that land comprised in Lot 2, DP 580497 known as 6 Sims Road, Gerringong (“the subject land”) adjoins land zoned primarily for urban purposes pursuant to cl 4(1)(a) of State Environmental Planning Policy (Seniors Living) 2004 (“SEPP SL”).

Outline of the facts

2 The applicant, on 27 January 2006, had lodged a development application no 10.2006.27 with the respondent, Kiama Municipal Council (“the Council”). The application seeks approval to convert the existing dwelling house on the subject land into a hostel for the aged and disabled under SEPP SL.

3 The subject land is zoned part 1(a) Rural and part 9(a) Proposed Arterial Road under Kiama Local Environmental Plan 1996. The subject land is separated from land zoned 2(a) Residential within the Gerringong town by the Princes Highway (which is unzoned) and the Illawarra Railway (which is zoned 5(b) (Special Uses Railways)).

4 The distances of separation between the subject land and the land zoned 2(a) Residential are as follows:

The shortest distance from the subject land to land zoned 2(a) Residential is 65 metres.

The shortest distance from land zoned 1(a) Rural within the subject land to land zoned 2(a) Residential is 85 metres.

The shortest distance either on foot or by vehicle between the subject land and land zoned 2(a) Residential is 1.15 kilometres.

The shortest distance either on foot or by vehicle from the entry to the proposed hostel on the subject land and land zoned 2(a) Residential is 1.51 kilometres.

The applicable statutory provision

5 Clause 4(1) of SEPP SL provides:

“(1) This Policy applies to land within New South Wales:
(a) that is zoned primarily for urban purposes or that adjoins land zoned primarily for urban purposes, and
(b) on which development for the purpose of any of the following is permitted:
(1) dwelling-houses,
(2) residential flat buildings,
(3) hospitals,
(4) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries”.

6 It is common ground between the parties that the subject land, being zoned part 1(a) Rural and part 9(a) Proposed Arterial Road, is not land that is “zoned primarily for urban purposes” within the first limb of paragraph (a) of cl 4(1) of SEPP SL.

7 It is also common ground between the parties that the 2(a) Residential zoned land answers the description of land that is “zoned primarily for urban purposes” within the second limb of paragraph (a) of cl 4(1).

8 The issue between the parties is whether the subject land “adjoins” the 2(a) Residential zoned land.

Applicant’s submissions

9 The applicant, for whom Mr C W McEwen SC appeared, submitted:

(a) The word “adjoins” means “is near to” or “is neighbouring upon” rather than its exact meaning of abutting or being “conterminous” with: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 443; Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 at 284; Pepperwood Ridge Pty Limited v Newcastle City Council [2005] NSWLEC 257 (29 July 2005) at [15]. Sufficient proximity is all that is required for a sufficient finding that relevant lands adjoin: at [11] of applicant’s written submissions dated 24 March 2006.

(b) The word “adjoins” must take its colour from the context in which it appears: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 443. A determination of whether the relevant land adjoins within the meaning of SEPP SL is guided by established tenets of construction. Specifically, effect is to be given to the intention of the legislature in enacting the particular statutory instrument: Cooper Brooks (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304. A purposive approach to construction is required: Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 at 421. See also s 25(3) of the Environmental Planning and Assessment Act 1979 (NSW) and ss 33 and 5(6) of the Interpretation Act 1987 (NSW): at [12] of applicant’s written submissions dated 24 March 2006.

(c) In Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276, Bignold J observed that the evident purpose of the requirements that lands “adjoin” under the former instrument (SEPP 5) “is to impose requirements as to location of lands which may be developed by housing for aged or disabled persons”: at 284. In Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, in preferring a loose interpretation of the word “adjoins” requiring only that such lands be “near to” or “neighbouring upon”, did not regard the language of SEPP 5 as containing “any persuasive indication that lands which immediately adjoins should be exempt whereas land which adjoins in the lesser sense is not”: at 443. Finally, in DEM (Aust) Pty Limited v Pittwater Council (2004) 136 LGERA 187 at 195, the Court of Appeal confirmed that SEPP 5 contained “remedial or beneficial provisions which should be construed to afford the fullest relief which the fair meaning of its language will allow”: at [13] of applicant’s written submissions dated 24 March 2006.

(d) Unlike SEPP 5, SEPP SL now contemplates and stipulates additional requirements when land is more isolated in the sense of it being land which adjoins land zoned primarily for urban purposes. The aim of SEPP SL in cl 2(2)(c) is to ensure applicants provide support services for development upon land which adjoins land zoned for urban purposes. Clause 19 limits the type of permissible development which may be carried out on land which adjoins land zoned primarily for urban purposes to only two, one of which is a hostel. These additional constraints, coupled with the requirements of cl 25(2)(c) of SEPP SL which apply to a proposed development on land in a local government area outside the Sydney Statistical Division, are designed to amply protect residents in more isolated developments and serve to demonstrate that, arguably, the emphasis under SEPP SL is now less upon proximity to “town” than was the case under the former SEPP 5. Almost by necessity, land which adjoins land zoned primarily for urban purposes will be at the periphery or fringe of urban land but it is not, for that reason, disqualified from consideration under SEPP SL: at [14] of applicant’s written submissions dated 24 March 2006.

(e) The subject land is separated from the 2(a) Residential land only by an unzoned road (Princes Highway) and a railway corridor (Illawarra Railway). Separation of lands by a road may nonetheless result in a finding that the lands, in fact, abut: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 434. Alternatively, separation by a road (whether zoned or not) dictates a finding of close physical proximity between the lands in question sufficient to bring about the necessary result that the lands relevantly “adjoin”. In both Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 and in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 the existence of a road as well as a zoned strip of reserved land was held not to preclude a finding that the land on either side adjoined: at [15] of applicant’s written submissions dated 24 March 2006.

(f) In the subject case, the separation is comprised of both a road (25 metres) and the railway corridor (40 metres). Neither the total distance of 65 metres nor the nature or zoning of the intervening land would prevent a finding that the subject land relevantly adjoins the 2(a) Residential land. If it is legitimate to disregard a road because it exists as a “normal feature of urban development” or because there is “no separate development” on such land ( Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 434) then similar observations may be made with respect to a railway line. It is a transportation corridor, as is a road, and contains no separate development other than the railway lines themselves, which are not different in nature to a constructed road surface, particularly a road which incorporates a median strip or traffic control devices: at [16] of applicant’s written submissions dated 24 March 2006.

(g) The physical nature of the separating elements (in the sense of constituting a physical barrier or otherwise) is of doubtful relevance in the determination of whether the lands adjoin. The evident scheme of SEPP SL is to focus upon geographical proximity for the purpose of determining threshold permissibility and to leave the substance or geometry of the separating land to be dealt with as a merit consideration separate and subsequent to the issue of legal permissibility. By way of example, although it may readily be accepted, pedestrians may have more difficulty crossing a railway line than an unobstructed two land road, that fact cannot be relevant as to whether the lands on either side “adjoin”. Land may directly abut other land and yet be separated from it by an impenetrable barrier erected upon the boundary, such as a fence or deep water course. Such physical obstacles will not prevent a finding, within the meaning of cl 4(1)(a) of SEPP SL, that the lands relevantly adjoin: at [17] of applicant’s written submissions dated 24 March 2006.

(h) Roads and their accompanying reserve lands often have a width in excess of 65 metres. Whether the intervening road is comprised of a single lane or multiple lanes divided by a line, median strip or a more substantial barrier such as rock or concrete walls, should not influence the appropriate conclusion that lands on either side do adjoin. In Pepperwood Ridge Pty Limited v Newcastle City Council [2005] NSWLEC 257 (29 July 2005), Pain J held that a 4 lane highway which incorporated a median strip did not prevent a finding that lands on either side of it adjoined each other. Pain J expressly rejected an argument that the relevant lands did not adjoin because the site was inaccessible to pedestrians and vehicles from the land zoned 2(a) Residential: at [18] of applicant’s written submissions dated 24 March 2006.

(i) An examination of the relationship of the subject land with its close geographical proximity to the 2(a) Residential land compels the conclusion that the subject land adjoins land zoned primarily for urban purposes, in the sense that it is “near to”, “neighbouring upon” and in “sufficient proximity” to such land: at [21] of applicant’s written submissions dated 24 March 2006.

(j) The facts that to travel on foot or by vehicle from the subject land to the land zoned 2(a) Residential at Gerringong may require travelling a distance of 1.15 to 1.51 kilometres is irrelevant to the threshold question in cl 4(1)(a) of SEPP SL of whether the subject land adjoins the 2(a) Residential land. The fact is no doubt relevant in any subsequent consideration of whether the subject land is suitable but this assessment takes place after threshold permissibility has been affirmed. Such an approach finds support in the scheme of SEPP SL, which requires consideration of the adequacy of location (including pedestrian and vehicular access) in Chapter 3 of SEPP SL, which is only the subject of consideration once it has been first determined via cl 4(1) that SEPP SL applies to the land: at [22] of the applicant’s written submissions dated 24 March 2006.

(k) To focus on the distance by foot or vehicle from the site of the hostel to the 2(a) Residential land at the threshold stage is apt to misguide the relevant inquiry. In particular, the present application is for a hostel on land which adjoins land zoned primarily for urban purposes. There are particular requirements in such circumstances and SEPP SL recognises that location and access to facilities should be the subject of different criteria than land within the Sydney Statistical Division. For example, cl 25(2)(c) requires a transport service to be available, the terms of which service are permitted to be different for land not within the Sydney Statistical Division to land within the Sydney Statistical Division: at [23] of applicant’s written submissions dated 24 March 2006.

10 Mr McEwen made oral submissions elaborating on two of these matters, namely: (a) the nature of the barrier posed by the Princes Highway and the Illawarra Railway on the land intervening between the subject land and the land zoned primarily for urban purposes; and (b) the distance of the separation of the lands of 65 metres. These were to a similar effect as I have summarised above.

Respondent’s submissions

11 The respondent Council, for whom Mr J Ayling SC appeared, submitted:

(a) The reason for SEPP SL permitting development to which SEPP SL applies to extend into land not zoned for urban purposes is the reasonable expectation that if such land “adjoins” urban land it will be likely to provide an adequate level of integration with the urban land and will enable the proposed development and its inhabitants to enjoy the benefits of the normal urban facilities provided to persons who reside in an urban community. It is intended to avoid a situation in which land is located where its residents are isolated from urban facilities and become unable to function as a part of the urban community: at [6] of respondent’s written submissions dated 21 March 2006.

(b) That the land proposed to be used for development relying on SEPP SL provides, in terms of its location, a capacity for that kind of integration with an urban area is a sine qua non of permissibility. It is not merely one of the matters of merit which deserve consideration in the process of determining whether the proposed development should receive approval: at [7] of respondent’s written submissions dated 21 March 2006.

(c) The word “adjoin” is not of narrow or fixed definition. It is well established that in the current context it does not mean that immediate physical contiguity must exist: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 433-434. Instead, it denotes proximity to the land in question. The expression “sufficient proximity” is often used, in order to recognise that proximity must be measured against something. In decided cases at first instance in the Land and Environment Court, two parcels separated by a road, or a road and a narrow strip of open space, have been held to be sufficiently proximate to each other as to allow the conclusion that they “adjoin” for the purposes of SEPP 5 (where the words used in this context are similar to those in the successor to SEPP 5, namely SEPP SL: see Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276; Pepperwood Ridge Pty Limited v Newcastle City Council (2005) NSWLEC 257 (29 July 2005): at [8] of respondent’s written submissions dated 21 March 2006.

(d) The substitution of expressions such as “is near to” or “is sufficiently proximate to” for the word “adjoins” has been enough in cases before this one to suggest a fairly clear answer to the question raised. This is because, in all examples, the distance involved has been quite short and, more importantly, because there was no actual impediment (apart from the need for care in crossing the road) to passage on foot by people from the development to the “adjoining” urban area: at [9] of respondent’s written submissions dated 21 March 2006.

(e) The present case is very different. Here the shortest distance measured in metres is irrelevant because between the urban area and the subject site lies the impassable barrier of a railway line, across which at any point near the subject site it is not possible to go: at [10] of respondent’s written submissions dated 21 March 2006.

(f) The position is therefore similar to that which would exist if the area of separation, albeit narrow, was occupied by a deep, fast-flowing, unbridged river or an unscaleable, vertical cliff face. In either of these examples, the test of sufficient proximity, properly applied, would not necessarily lead to the conclusion that the land “adjoined”: at [11] of respondent’s written submissions dated 21 March 2006.

(g) In ordinary English usage the word “adjoin” is not apt in every case where physical contiguity exists: at [12] of respondent’s written submissions dated 21 March 2006.

(h) The current edition of the Guide to SEPP SL circulated by the Department of Planning recognises the necessity for housing to be accessible to shops, recreation facilities and community facilities, general medical practitioners, support services and public transport (p 14). It further recognises that judgments about accessibility based upon distance from facilities must be tempered with knowledge of “topography and other potential obstacles to access (such as roads without safe pedestrian crossing points)” which factors are “just as important as distance, especially for pedestrians and people in wheelchairs” (p 15). The fact that the Guide is at such pains to stress the great importance of matters relating to access, strongly suggests that there is a close connection between the decision to permit certain types of developments only in certain locations and the decisions to control those developments in terms of the availability of access to services: at [13] and [14] of respondent’s written submissions dated 21 March 2006.

(i) In the present case, if one measures the relevant distance between the subject land and the nearest urban-zoned land in other than a straight line – that is, along the shortest path of travel which can be used to gain access to land zoned for urban purposes – the land in question is not sufficiently proximate to or close enough to, or near, that latter land: at [15] of respondent’s written submissions dated 21 March 2006.

(j) Even if, contrary to the above submissions, one is justified in measuring the relevant distance in a straight line, ignoring obstacles, grave doubt must exist as to whether a distance of 65 metres or 85 metres so measured allows the conclusion that the lands “adjoin”. One would not regard land separated by such a distance as being, in the ordinary English use of the word, “adjoining”. Even if sometimes it carries the idea of “across the road”, it does not mean “across the road and on the other side of the tracks”: at [17] of respondent’s written submissions dated 21 March 2006.

12 My Ayling made oral submissions, drawing for support on a number of decisions of overseas courts on the word “adjoining” or similar words. These decisions were Lightbound v Higher Bebington Local Board (1885) 16 QBD 577, Ware Urban District Council v Grant [1960] 3 All ER 778, Mightystream Ltd v Attorney-General [1982] HKCA 14 (21 January 1982), Re Hannigan Holdings [2000] 4 IR 369, [2000] 2 ILRM 438 (13 April 2000) and McCamphill v Northern Ireland Railways [2003] NI Cty 1 (23 December 2003). Mr Ayling submitted that these decisions support a construction of “adjoins” which would not permit land separated from other land by a physical barrier or which is not in close proximity to other land, to be classified as adjoining.

13 Mr Ayling emphasised the importance of determining the question under cl 4(1)(a) having regard to the particular facts of the case. No universal criteria can be or should be applied. Matters of fact and degree are involved.

14 Not all physical or legal barriers to access, whether pedestrian or vehicular, between lands will prevent land from being land that adjoins land zoned primarily for urban purposes. Mr Ayling accepted that the Princes Highway by itself might not constitute a sufficient barrier to cause land on one side not to adjoin land on the other side. However, Mr Ayling submitted that the Illawarra Railway stands in a different position to the Princes Highway. The circumstance that currently there is no lawful means of crossing the Illawarra Railway in close proximity to the subject land, is sufficient to cause the subject land not to adjoin the land zoned primarily for urban purposes on the other side of the railway.

Relationship is between the lands

15 Clause 4(1) of SEPP SL is concerned to determine the land to which SEPP SL applies. SEPP SL substantively is concerned with permitting particular types of development, namely housing for older people or people with a disability, however, these types of development are only permitted on land to which SEPP SL applies. Hence, questions concerning the proposed development, including its accessibility, do not arise unless and until the land on which the proposed development is proposed to be carried out is classified as land to which SEPP SL applies.

16 Clause 4(1)(a) requires either that the land upon which development is proposed be land zoned primarily for urban purposes or that that land adjoins land zoned primarily for urban purposes. In this case, the subject land is not zoned primarily for urban purposes. The question is whether it is land that adjoins land zoned primarily for urban purposes. The inquiry is as to whether the relationship between the two lands – the subject land and the nearest land zoned primarily for urban purposes – answers the description that the former “adjoins” the latter.

Judicial consideration of “adjoins”

17 The relationship that clause 4(1)(a) requires, that of “adjoins”, has been the subject of judicial consideration, both in the context of the predecessor to SEPP SL, namely SEPP 5, and the current SEPP SL.

18 In Auckland Lai v Warringah Shire Council (1985) 58 LGERA 276 at 283-284, Bignold J held that:

“…the word “adjoins” in the phrase “adjoins lands zoned for urban purposes” is intended to bear its loose sense of “is near to” or “is neighbouring on” rather than its exact meaning of “is conterminous with”.”

19 Bignold J set out nine reasons for so concluding: at 284. Bignold J applied this meaning to the facts of the case where the land proposed to be developed was separated from land zoned Residential 2(a) by a constructed public road and a slither of land zoned non-urban ranging in width from 4 to 10 metres: at 278. Bignold J concluded nevertheless the land adjoins the land zoned for urban purposes: at 285.

20 In Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, the Court of Appeal held that land that was separated from land zoned for urban purposes by a road (Mid Dural Road) and a roadside reserve zoned open space and of 15 metres in width, was still land that adjoins that land zoned for urban uses. Kirby P held at 433-434:

“There was no contest but that the Galston Village area on the other side of the Mid Dural Road was so zoned [for urban purposes]. Nor was it contested that the word “adjoins”, in its various forms could mean either physical contiguity or close physical proximity, depending upon the context. There is a useful discussion of the authorities in the judgment of Hogarth J in Minister of Works v Antonia [1966] SASR 54 at 61. I do not repeat what is there said. The authorities are sufficient to sustain the concession properly made by the appellant.
It is therefore necessary to turn to the context in which the word appears in cl 11(2). The appellant contended that the primary meaning of physical contiguity should be insisted upon. It urged this construction on the basis that the purpose of permitting consent, although land was not zoned for urban uses, was to avoid the inconvenience which would otherwise arise, if the proposed development site immediately abutted urban land. Such a construction would, it was urged, avoid the mischief, at the margin, of a zone difference, without undermining the general policy. That policy was said to be that homes for the aged or disabled should be constructed in urban areas both for the interests of the residents and for the saving of costs to the community. Development outside such areas was an exception. So, it was said, the word should be given a narrow meaning in the context.
Even accepting this general approach, I am not at all convinced that the separation of the proposed development site from the Galston Village was such a distance as properly to fall outside the description of abutment. Roads and roadside reserves exist as a normal feature of urban development. In the present case there was no separate development between land undoubtedly zoned for urban use and the proposed development. But even if there were no strict abutment, because of the lack of physical contiguity, there is still a sufficient proximity to bring the proposed development within the word “adjoins” in the context of cl 11(2)(a). Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word “adjoins” is no exception. Whereas originally it might well have connotated immediate physical contiguity, nowadays that idea tends to require the use of the adverb “immediately”, such as “immediately adjoins”. That adverb would not be necessary if the word itself invariably connotated immediate physical proximity.
It is not appropriate in the present facts to speculate upon what would be the case if there were a separation between land zoned for urban uses and the proposed development site other than a road and roadside reserve. The appellant called attention to the terms of s 90(1)(h). By the reference in that paragraph to “in the locality”, it may be suggested that “adjoins” in the policy means something considerably more proximate. But that argument can be conceded, and there is still a sufficiently close proximity in the facts of the present case to uphold the conclusion that the proposed development adjoined urban land”.

21 Glass JA held at 443:

“The trial judge ruled that the word “adjoins” in the statutory phrase “adjoins land zoned for urban purposes” is used in its loose sense of “is near to” and “is neighbouring on” rather than its exact meaning “is conterminous with”. So construed the subject land which is separated from urban land zoned for urban uses by no more than a public road adjoined such land. Mr Hemmings argued for the constriction of “adjoins” as means “abuts” or “is contiguous with”. He referred to s 90(1)(h) of the Environmental Planning and Assessment Act 1979 which distinguishes between adjoining land and land in the locality. In my opinion the word “adjoins” is currently used in both senses and must take its colour from the context in which it appears. I do not find in the language of State Environmental Planning Policy No 5 any persuasive indication that land which immediately adjoins should be exempt whereas land which adjoins in the lesser sense is not. I see no error of law in the construction of the provisions of cl 11(2) which the trial judge adopted”.

22 Mahoney JA agreed with Glass JA: at 443.

23 In Modog Pty Limited v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 449 [23], Pearlman J held:

“In the context of the purpose and object of SEPP 5, to which I have already referred, that is, to provide medium density development for housing older people and people with a disability in an urban setting, I respectfully adopt the loose meaning of the word “adjoins” as being “near to” or “in the neighbourhood of””.

24 There, the subject land was 200 metres from land which was zoned primarily for urban purposes and was separated from that land by land that was zoned Rural 1(c). Accordingly, Pearlman J held that the site was not near to or in the neighbourhood of land zoned primarily for urban purposes: at [24].

25 In DEM (Aust) Pty Limited v Pittwater Council (2004) 136 LGERA 187, land on which development was proposed was not itself zoned primarily for urban purposes; it was zoned 3(e) (Office Business E). However, the land was located diagonally opposite land which was zoned for residential purposes and hence for urban purposes: at 190 [15]. There were intervening cross roads between the lands. The land proposed to be developed was held to be land that adjoins land zoned primarily for urban purposes and hence cl 4(1)(a) of SEPP SL was satisfied: at 190 [15].

26 In Pepperwood Ridge Pty Limited v Newcastle City Council [2005] NSWLEC 257 (29 July 2005) at [15], Pain J held:

“15. I do not consider there is any relevant difference in the wording between cl 11(2) of the SEPP 5 and cl 4(1) of SEPP SL. Accordingly, the reasoning in Malcolm applies and is binding. I consider that “adjoins” in SEPP SL is intended to mean “is near to” or “is neighbouring on”, rather than the exact meaning of “is conterminous with”. I reject the Council’s submission that less weight should be given to the cases listed above on the basis that they were determined in relation to SEPP 5”.

27 There, the land was separated from land zoned 2(a) Residential by a road of 30 metres in width. The road consisted of a four-lane highway and a median strip. The road made the development site inaccessible for pedestrians and vehicles from the land zoned 2(a) Residential: at [13]. However, the presence of this physical barrier was held by Pain J not to be significant:

“While it is true that the site does not abut land that is zoned primarily for urban purposes, I consider that the site is nevertheless in the vicinity of, near to, and adjoins land zoned 2(a) Residential: at [16].

28 The decisions of the English Court of Appeal in Lightbound v Higher Bebington Local Board (1885) 16 QBD 577 and in Ware Urban District Council v Gaunt [1960] 3 All ER 778, the Court of Appeal of Hong Kong in Mightystream Ltd v Attorney General [1982] HKCA 14 (21 January 1982), the Supreme Court of Ireland in ReHannigan Holdings [2000] 4 IR 369; [2000] 2 ILRM 438 (13 April 2000) and the Northern Ireland County Court in McCamphill v Northern Ireland Railways [2003] NI Cty 1 (23 December 2003) do not assist in the interpretation of the word “adjoins” in cl 4(1)(b) of SEPP SL.

29 Words are chameleons that take colour from their context. The context of the word “adjoins”, both in cl 4(1)(a) in particular and in SEPP SL in general, is significantly different to the context in which the words “fronting, adjoining or abutting” (in Lightbound v Higher Bebington Local Board and Ware Urban District Council v Gaunt: whether land in order to be rateable or liable to pay expenses for street works could be said to be “fronting, adjoining or abutting” a road) or “abut” (Mightystream Ltd v Attorney-General: whether a lot abuts a street not less than 4.5m wide) or “adjoining” (Re Hannigan Holdings Ltd: whether premises are attached to or adjoining premises licensed for the sale of intoxicating liquors) or “adjoining” (McCamphill v Northern Ireland Railways: concerning a statutory duty on a governmental railway company to maintain certain works on a railway for the accommodation of the owners and occupiers of lands adjoining the railway) are used.

30 The interpretation of words similar to “adjoins” but in significantly different statutory contexts, cannot displace the interpretation of the word “adjoins” in statutory cl 4(1)(a) of SEPP SL given by the Court of Appeal and this Court in the previous decisions referred to above.

Finding in this case

31 These cases of the Court of Appeal and this Court are consistent in holding that it is not necessary, in order for the subject land to answer the description of being land that “adjoins” land zoned primarily for urban purposes, to be conterminous with (that is, have a common boundary with) or be immediately adjoining the 2(a) Residential land. It is sufficient that the subject land is “near to” or is “neighbouring on” or is “in sufficient proximity to” the 2(a) Residential land which is land zoned primarily for urban purposes.

32 The determination of whether land answers the description of being land that “adjoins” within this meaning involves matters of fact and degree.

33 In my opinion, the facts of the present case do establish that the subject land is near to or neighbouring on or in sufficiently close proximity to land zoned primarily for urban purposes. My reasons accord with and I adopt the reasons given by the applicant, set out in paragraph 9 above.

34 The distance separating the subject land from the land zoned primarily for urban purposes is not great, both in terms of the width of each linear feature (25 metres for the Princes Highway and 40 metres for the Illawarra Railway) or the combined width of 65 metres. Those distances are no more than are necessary and reasonable for such urban transportation systems.

35 The separation of the subject land from the land zoned primarily for urban purposes by the linear features of the Princes Highway and the Illawarra Railway does not disentitle the subject land from being land that “adjoins” land zoned primarily for urban purposes. The decisions of the Court of Appeal in Hornsby Shire Council v Malcolm and in DEM (Aust) Pty Ltd v Pittwater Council and of this Court in Auckland Lai v Warringah Council and Pepperwood Ridge Pty Limited v Newcastle City Council, all involved findings that land, although separated from other land zoned primarily for urban purposes by a road (and also in some cases, other land such as a road reserve), still could be classified as land that “adjoins” the other land.

36 Linear transport routes such as roads and railways are normal features of urban development: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 434. They often run parallel to one another, as they do in this case. They do not cause the subject land on one side of the road and railway to fall outside the description of being land that adjoins land zoned primarily for urban purposes on the other side of the road and railway.

37 The fact that physical access for pedestrians and vehicles across the road and railway may be impeded (there is no overpass or underpass or safe crossing currently) is not determinative of the question of whether the subject land adjoins land zoned primarily for urban purposes. The inquiry demanded by cl 4(1)(a) is simply whether the subject land adjoins land zoned primarily for urban purposes. The statutory provision does not require inquiry into the physical features of the respective lands or whether access is able to be gained between the land either physically or legally, or if so, by what means.

38 There may be many instances where physical or legal access is prevented or restricted between lands, even conterminous lands. There may be fences, walls, vegetation or other physical barriers between lands which prevent pedestrian or vehicular access between lands. There may be no legal entitlement to pass or repass between lands (such as a public thoroughfare or road or a private right of way). Yet the unavailability of physical or legal access for pedestrians and vehicles does not, by itself, disentitle land that is near to or neighbouring on or in sufficient proximity to land that is zoned primarily for urban purposes to be land that adjoins the latter land.

39 The fact that pedestrian or vehicular access between the subject land and the land zoned primarily for urban purposes requires a longer travel distance than the width of the road and railway line that separates the two lands does not alter this conclusion. That fact is relevant in any determination of the merits of the application, having regard to the terms of SEPP SL, but it is not determinative of the question of whether the subject land is land to which SEPP SL applies.

40 For these reasons, I find that the subject land adjoins land zoned primarily for urban purposes within cl 4(1)(a) of SEPP SL and accordingly is land to which SEPP SL applies.

Costs

41 The applicant having been successful in the proceedings should be entitled to its costs.

Orders

42 The Court makes the following orders:

1. The Court declares that the land comprised in Lot 2 DP No. 580497 known as 6 Sims Road, Gerringong, adjoins land zoned primarily for urban purposes pursuant to Clause 4(1)(a) of State Environmental Planning Policy (Seniors Living) 2004.

2. The respondent is to pay the applicant’s costs of the proceedings, as agreed or assessed.

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