Dougruby Pty Ltd v Wingecarribee Shire Council

10157 of 2004 Bly C 30 April 2004 Dougruby Pty Ltd Applicant

v Wingecarribee Shire Council Respondent Judgment

1. This judgement relates to Development Application No. LUA 03/1717 which was lodged with the Wingecarribee Shire Council on the 20 October 2003 for the development of Lots 100 and 101 in DP 841242, being land in Kangaloon Road and Wiseman Road, Bowral ("the site") for a residential retirement development ("the proposal") under State Environmental Planning Policy No. 5 - Housing For Older People or People with a Disability ("SEPP 5")

2. As of 9 March 2004 the application had not been determined and an appeal against the respondent's deemed refusal was lodged with the Court on 12 February 2004. A Statement of Issues containing 17 Issues plus a question of law was filed on 10 March 2004.

3. As a result of a case management hearing it was decided that the following threshold issue which emerged out of the question of law and Issue 1 should be separately heard and determined by the Court: Whether the proposed development is permissible in the 1 (c) Rural (Smallholdings) Zone and SEPP 5 does not apply because the site is not zoned primarily for urban purposes, nor does it adjoin land zoned primarily for urban purposes and is isolated from other urban development (cl 4(1)(a), SEPP 5).

4 . The site is situated in the 1(c) (Rural (Smallholdings) Zone) under the Wingecarribee Local Environmental Plan 1989 ("the LEP"). There was no dispute that the proposal is not permissible in the 1(c) zone and that the only means of obtaining the necessary development consent for the proposal is by the use of SEPP 5 subject to the tests in cl 4 (1) (a) being met.

5 . Relevantly cl 4(1) (a) of SEPP 5 provides that:

4 (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.

6 . This provision relevantly raises two tests which need to be applied to the circumstances of the site in order to decide if SEPP 5 is applicable: is it zoned primarily for urban purposes ; or does it adjoin land zoned primarily for urban purposes.

7 . Mr R. Smyth, a town planner who provided a report in support of the respondent's position explained that because the site is in the 1(c) zone it is not zoned primarily for urban purposes , the 1(c) zone not being an urban zone. I agree with this contention.

8 . It seems that the term urban purposes has been used in SEPP 5 rather than say residential or industrial or commercial purposes because it is intended to include a broad range of purposes that might be found in a town or city rather than in a rural or farming area. The term urban is defined in the Shorter Oxford Dictionary as pertaining to or constituting a city or town.

9 . The objectives of the 1(c) zone are mainly to accommodate demands for rural residential use, rural retreats and hobby farms. Whilst land uses such as rural residential, rural retreats and hobby farms usually include a residential component they are nevertheless non-urban or rural in character. Such uses are visually and functionally different to the urban purposes one would find, for example, in the nearby residential zones especially when matters such as housing density and agricultural purposes are taken into account.

10 . There was no dispute that the site is not zoned primarily for urban purposes and in the circumstances I agree that the site does not meet the first test in cl 4 (1) (a) of SEPP 5.

The second test - adjoins land zoned primarily for urban purposes?

11 . The second test of whether the site adjoins land zoned primarily for urban purposes raises the question as to the meanings of the term adjoins and the phrase zoned primarily for urban purposes in the context of cl 4 (1) (a) of SEPP 5.

12 . In Auckland Lai v Warringah Shire Council (1985) 58 LGRA Bignold J explained in relation to the words adjoins that the preferred interpretation is: … that which ascribes the loose sense to "adjoins" namely "is near to", or "is neighbouring on"…

13 . In Hornsby Shire Council v Malcolm (1986) 60 LGRA the Court of Appeal confirmed Bignold J's conclusion as to the meaning of the term adjoins . It was held that strict abutment was not required and instead, sufficient proximity would bring the development within the relevant meaning. The term adjoins was distinguished from the term immediately adjoins . More recently Pearlman CJ dealt with the term adjoins in Modog Pty Ltd v Baulkham Hills Shire Council (2000) NSWLEC 180 and essentially adopted Bignold J's tests in Malcolm , using the phrase: in the neighbourhood of .

14 . Mr Smyth provided the Court with zoning maps which show the relationship of the site to surrounding lands and their different zonings. To the south and east of the site lands are zoned 1(c) which zone is not, as discussed above, an urban purposes zone. For similar reasons the immediately adjoining land to the west of Wiseman Road in the 7(b) Environmental Protection Zone is also not an urban purposes zone. A short distance beyond the 7(b) zone to the west there is 2(c) Residential zoned land. On the north side of Kangaloon Road to the north-west, north and north-east, lands are variously zoned 2(a) Residential and 6(d) Proposed Recreation Reservation and 9(c) Flood Affected Open Space. Kangaloon Road is unzoned but has a 10 m wide strip of 9(b) Proposed Local Road along its northern side.

15 . More particularly, immediately opposite the site across Kangaloon Road, almost coincidental with its entire frontage, lands are zoned 6(d) and 9(c). The nearest residentially zoned land is about 85 m to the north-east measured from the north-eastern corner of the site.

16 . In Auckland Lai and Malcolm it was held that the existence of a road and a road reserve did not preclude lands on either side from adjoining each other. Utilising this approach it is clear that the site is near to and thus adjoins lands which are zoned 6(d) and 9(c). However it was disputed that these zones comprise zones which are primarily for urban purposes. This question can be answered by considering the objectives and permissible land uses in these zones.

17 . The objective of the 6(d) zone is to acquire land for the purposes of public open space. Permissible purposes in this zone are essentially restricted to gardens, landscaping, bushfire hazard reduction and recreation areas. Once acquired by the council such land can be expected to be rezoned in due course to 6(a) Open Space (Existing Recreation) Zone which has the objective of providing land for public recreation purposes. Such purposes include parks, gardens, recreation areas, camping grounds, caravan parks, children's playgrounds, public baths, public reserves, racecourses, recreation areas, refreshment rooms, showgrounds, sports grounds and the like. In my view the majority of these purposes are associated with urban rather than rural or non-urban purposes, that is to say that they are more likely to service a residential population found within a residential zone which in turn would be found within an existing or proposed town or city.

18 . I have thus decided that the site is near to and thus adjoins land that is zoned primarily for urban purposes.

19 . Taking a wider view and considering the site and its relationship to other surrounding zones particularly the residential zones, it also appears that the site could be considered to be in the neighbourhood of land zoned for urban purposes. However I would reject this approach especially because I have not been persuaded that the distance of separation between the site and these other lands would represent a sufficient proximity . It seems to me that the decisions in Auckland Lai and Malcolm, by referring to is near to or is neighbouring on can be broadly interpreted to mean across the road rather than down the road.

20 . Arguments were also presented on behalf of the respondent based on: the physical separation created by Kangaloon Road which is a main road; the orientation of East Bowral which is designed with its back turned to Kangaloon Road; the absence of any connection to the town sewage system from the subject land; and the absence of any direct pedestrian access between the site and the residential land in East Bowral. I do not accept that these arguments are relevant to the determination of whether the site adjoins land that is zoned primarily for urban purposes . Rather they are merit arguments for consideration in due course associated with the question of whether the site itself is suitable for the proposal.

21 . In the circumstances and for the reasons given above I have decided that because the site adjoins land zoned primarily for urban purposes, SEPP 5 is applicable to Lots 100 and 101 in DP 841242, being land in Kangaloon Road and Wiseman Road, Bowral.

  T A Bly
  Commissioner of the Court
  rjs

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.