(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 Re Hannigan 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: