(d) Those objectives are directed to the development of open space in a manner which optimises the satisfaction of private recreation needs of the community. As a result, any development that fulfils those objectives is permissible and is relevantly for urban purposes.
28 I accept, of course, the remedial and beneficial nature of the Policy and the need to construe it as widely as its language will allow. I also accept the submission that the correct approach to determining the question of whether land is zoned primarily for urban purposes is described in Modog and in Murlan Consulting upon which Mr Hemmings relies.
29 In Modog, Pearlman J adopted (at [12]) the meaning of the word "urban" as "pertaining to, or constituting a city or town". Her Honour also had regard to the aim of the then Policy (State Environmental Planning Policy No. 5) of encouraging the provision of housing that meets the needs of the target community. Her Honour also had regard to a clause in the policy which made it clear that reasonable access to and the availability of facilities and services is a critical consideration.
30 The present Policy also has a similar aim: see, in particular Ch 2 of the Policy. Similarly, cl 25 of the Policy requires that the development must have reasonable access to facilities and services.
31 In Murlan Consulting, Preston J held (at [30]) that the inclusion of non-urban purposes in a zone can be an indicator that land is not zoned primarily for urban purposes. His Honour also had regard (at [32]) to the name of the zone as indicating its character. In Retirement by Design Pty Ltd v Warringah Council (2007) 153 LGERA 372, Preston J took the word "primarily" to mean "chiefly" or "principally" (at [97]). Thus although urban purposes are permitted, overall, land in the locality must be said to be principally for urban purposes.
32 In the present case, the applicants' submission overlooks the word "primarily" in cl 4(1) of the Policy. The objectives of the 6(b) zone apply equally to meeting the recreational needs of the urban community and the non-urban community. It cannot be said, therefore, that the land is zoned primarily for urban purposes.
33 Moreover, as Mr M C Fraser, appearing for the council, points out, support for this conclusion is found in cl 4(2) of the Policy. Clause 4(2) at the relevant time stated that the Policy does not apply to "(a) land described in Schedule 1 (Environmentally sensitive land)". Schedule 1 refers to "land identified by any of the following descriptions or by description that incorporate any of the following words or expression: …(e) open space".
34 In Warringah Shire Council v TC Punnett & Associates Pty Ltd (2002) 122 LGERA 1, the circumstances were almost identical to those in the present case. In that case the land in question was zoned 6(b) Private Recreation "B" in the relevant local environmental plan. The Court of Appeal held that Sch 1 of the then State Environmental Planning Policy No. 5 gave effect to the otherwise neutral heading "Open Space", because the schedule engages these words as one of the descriptions in the local environmental plan that identifies the subject land (at [37], per Mason P). The Court of Appeal accordingly held that the then Policy did not apply to the subject land.
35 The facts in the present case are materially indistinguishable from those that were considered by the Court of Appeal in TC Punnett & Associates. The decision in that case confirms the conclusion which I have stated in par [32] above. I find, that the Policy does not apply to the subject land.