Pepperwood Ridge Pty Limited v Newcastle City Council

Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276; Dainford Ltd v Smith (1985) 155 CLR 342; Druitts Developments Pty Limited v Gosford City Council (2001) 114 LGERA 61; CASES CITED: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Modog v Baulkham Hills Shire Council (2000) 109 LGERA 443; Parkes & Spencer v Rastogi & Newcastle City Council (1992) 78 LGERA 71; Warringah Shire Council v Punnett & Associates Pty Limited (2001) 122 LGERA 1

APPLICANT: Mr J Ayling SC and Ms J Jagot (barrister) SOLICITORS: Cleaves Mallik Gibbs LEGAL REPRESENTATIVES: RESPONDENT: Mr J Maston (barrister) SOLICITORS: Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40027 of 2005 Pepperwood Ridge Pty Limited v Newcastle City Council

JUDGMENT 1 Her Honour: The Applicant has commenced Class 4 proceedings pursuant to s 123 of the Environmental Planning and Assessment Act 1979 ("the Act") seeking the following relief:

1. A declaration that land known as 164-168 Lake Road, Elermore Vale ("the site") owned by the Applicant is land to which State Environmental Planning Policy (Seniors Living) 2004 ("SEPPSL") applies;
2. An order that Newcastle City Council ("the Council") determine Development Application 04/0673 for the erection of seniors housing under SEPPSL on the site in accordance with the law;
3. An order that the Council pay the Applicant's costs of these proceedings; and
4. Such further or other order as this Court thinks fit. Background facts 2 The parties submitted an Agreed Statement of Facts to the Court. The parties agreed that the Newcastle Local Environmental Plan 2003 ("the LEP") applied to the site. Under the LEP, the site is zoned 7(c) Environmental Investigation Zone. The site is separated from land zoned 2(a) Residential by Lake Road. Lake Road is zoned 5(a) Special Uses - Arterial Road and is approximately 30.99m in width.

3 On or about 24 March 2004, the Applicant lodged Development Application 04/0673 with the Council for the development of 51 aged and disabled units on the site. The Council has not determined this development application.

Relevant statutory provisions 4 Under SEPPSL development for the purpose of aged and disabled units is permissible with development consent. Clause 4 of SEPPSL provides that: (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: (i) dwelling-houses, … (2) This Policy does not apply to: (a) land described in Schedule 1 (Environmentally sensitive land) …

5 Schedule 1 of SEPPSL provided that: Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions: … (b) conservation (but not land identified as a heritage conservation area in another environmental planning instrument), … (d) environment protection …

6 The parties agreed that the site is not zoned primarily for urban purposes and that the site is land on which development for the purpose of dwelling houses is permissible with development consent within the meaning of cl 4(1)(b) of SEPPSL.

Issues 7 There are two issues that arise in the current proceedings: (i) Whether the site "adjoins land zoned primarily for urban purposes" pursuant to cl 4(1)(a) of SEPPSL such that SEPPSL does not apply to the site; and (ii) Whether the site is land described in Sch 1 (Environmentally sensitive land) pursuant to cl 4(2) of SEPPSL so that SEPPSL does not apply to the site.

8 The parties agreed that if the Court is satisfied that SEPPSL does not apply to the site by virtue of either cl 4(1)(a) or cl 4(2) of SEPPSL that the development application cannot proceed.

(i) Whether the site "adjoins land zoned primarily for urban purposes" The Applicant's submissions 9 The Applicant submitted that the word "adjoins" in the context of SEPPSL is the same as the meaning given to "adjoins" in the context of the policy's predecessor, State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability ("SEPP 5"). Relying on Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 and other cases dealing with the definition of "adjoins" in the context of SEPP 5, the Applicant submitted that "adjoins" does not mean "is coterminous with" or "is contiguous with", but rather means "is near to" or "is neighbouring on".

10 Accordingly, the Applicant argued that the separation of the site from land zoned 2(a) Residential (a zone that is clearly primarily urban in nature) by Lakes Road is inconsequential and the site nonetheless adjoins the land zoned 2(a) Residential. The Council's submissions 11 The Council submitted that less weight should be given by the Court to earlier cases dealing with the definition of "adjoins" in the context of SEPP 5. The Council argued that this was because the wording of cl 4(1)(a) of SEPPSL differs slightly to cl 11(2)(a) of SEPP 5. Under cl 11(2)(a) of SEPP 5 the consent authority needed to be "satisfied" that the land adjoined land zoned for urban purposes. On the other hand, cl 4(1)(a) of SEPPSL requires that a jurisdictional fact must be found by the Court or the consent authority before it may determine an application.

12 The Council supported its argument by referring to the definition of "adjoin" in the Macquarie Dictionary. The Council noted that in Malcolm the Court of Appeal utilised the definition of "adjoin" in the First Edition of the Macquarie Dictionary. As the definition of "adjoin" in the current Second Edition of the Macquarie Dictionary is narrower than that in the First Edition it is appropriate for the Court to give less weight to the Court of Appeal's interpretation of "adjoins" in Malcolm.

13 The Council argued, accordingly, that in the present circumstances it is appropriate for the Court to have regard to the circumstances of the case. The Council submitted that as Lake Road consists of a major tract of land zoned other than for urban purposes the site was separated from land zoned primarily for urban purposes by a distance of approximately 30m. The zoning of the road indicates that the road is unique in comparison to other residential roads and indicates that there is a break in the zoning landscape. In addition as the road consists of a four-lane highway and a median strip, the Council argued that the site is inaccessible for pedestrians and vehicles from the land zoned 2(a) Residential and is, accordingly, not land that adjoins land zoned primarily for urban purposes. Findings 14 Several cases have established the meaning of "adjoins" in the context of SEPP 5. In Malcolm, Kirby P at 434 and Glass JA (with whom Mahoney JA agreed) at 443 considered that the land in question nonetheless adjoined land zoned for urban purposes despite separation by a roadside reserve for the purposes of cl 11(2) of SEPP 5. For the purposes of SEPP 5 the word "adjoins" means "is near to" or "is neighbouring on". Similarly in Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276, Bignold J at 283-284 found that in the context of SEPP 5, "adjoins" is intended to mean "is near to" or "is neighbouring on", rather than the literal meaning of "is coterminous with". These definitions were adopted by Pearlman J in Parkes & Spencer v Rastogi & Newcastle City Council (1992) 78 LGERA 71 at 76-77 and Modog v Baulkham Hills Shire Council (2000) 109 LGERA 443 at 449.

15 I do not consider there is any relevant difference in the wording between cl 11(2) of SEPP 5 and cl 4(1) of SEPPSL. Accordingly, the reasoning in Malcolm applies and is binding. I consider that "adjoins" in SEPPSL is intended to mean "is near to" or "is neighbouring on", rather than the exact meaning of "is coterminous 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.

16 Accordingly, I find that in the context of cl 4(1)(a) of SEPPSL that the site adjoins land zoned 2(a) Residential. In my view, the separation of the site from land zoned 2(a) Residential by Lake Road is not material. I agree with the Applicant that the presence of a physical barrier of approximately 30m between the site and land zoned 2(a) Residential is not significant in these circumstances. 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.

(ii) Whether the site is land described in Schedule 1 (Environmentally sensitive land) Applicant's submissions 17 The Applicant submitted that the Court is required to adopt a strictly textual approach in determining whether the site is land described in Sch 1 of SEPPSL. Relying on the Court of Appeal judgment in Warringah Shire Council v Punnett & Associates Pty Limited (2001) 122 LGERA 1, the Applicant argued that the description of land caught by Sch 1 is determined by reference to textual descriptions in the relevant environmental planning instrument. What is demanded by the schedule is identification by description. This textual approach is reinforced by the constant reiteration in Sch 1 of verbal markers in the phrase "by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions" (see Punnett at [25] per Mason P).

18 The Applicant contrasted the approach taken by the Court of Appeal in Punnett to the decision of Bignold J in Druitts Developments Pty Limited v Gosford City Council (2001) 114 LGERA 61. In Druitts, Bignold J held that land zoned 2(f) (Residential Beach Frontage) was capable of identification by words of "like description" as land within the equivalent schedule of SEPP 5 on the basis of the zone objectives. The Applicant submitted that it was doubtful that the approach taken by Bignold J was sufficiently textual in light of the Court of Appeal's decision in Punnett.

19 Consistent with the textual approach, the Applicant submitted that it was contrary to the Court of Appeal's findings in Punnett to determine whether the site is land described in Sch 1 by reference to the zone objectives of the site zoned 7(c) Environmental Investigation Zone. The zone objectives do not "describe" or "identify" the land and accordingly are irrelevant to the exercise required by cl 4(2) and Sch 1 of SEPPSL. This is because it is clear from Punnett that it is the textual association, not an association founded on meaning, synonym or planning intent, that governs resolution of the issue of whether the site is caught by Sch 1.

20 If the Court were minded to consider the zone objectives in determining whether the site is land described in Sch 1, the Applicant argued in the alternative that even having regard to the zone objectives the land could not be described as "conservation" or "environment protection" land pursuant to Sch 1. The words used in the zone objectives do not include "environment protection". In addition while one objective referred to "conservation" this was only in the context of investigation. The zoning, therefore, did not identify the site as land worthy of conservation, but rather, only identified the land as land which required investigation to determine whether conservation of the land was appropriate. Accordingly, the Applicant concluded that even having regard to the zone objectives, the marking of the site as an Environmental Investigation Zone did not describe the site as land under Sch 1. The objectives merely described the planning intention that lay behind the decision to allow land within the zone to be used for one purpose while forbidding its use for another. This was supported by the fact that the site was not zoned 7(a) Conservation Zone or 7(b) Environmental Protection Zone.

Council's submissions 21 The Council submitted that in determining whether the site is land described in Sch 1 it is appropriate to have regard to the zone objectives. This is because the zone objectives describe the land by stating what is intended for the land and how a person may develop the land. In arguing this point, the Council relied on Punnett where Mason P at [26] noted the potential width of the application of Sch 1. The Council also relied on Druitts where Bignold J found at [20] that the nomenclature of zones above was not the proper reference point for the application of the list of descriptions under Sch 1 of SEPP 5 and had regard to the zone objectives as a relevant reference point.

22 The Council then argued that, pursuant to Sch 1, as there was a 'like' description in the zone objectives of Zone 7(c) Environmental Investigation Zone to the descriptions of "conservation" and "environment protection" contained in Sch 1, SEPPSL did not apply to the site. The Council submitted that as one of the primary objectives of the zone was to ensure that land is not developed so as to prejudice environmental conservation this necessarily identified the site by like description as "conservation" or "environment protection" land pursuant to Sch 1. Findings 23 The opening words of Sch 1 do not require precise correspondence between the name of the zone and one of the categories of land in Sch 1. It is sufficient that the land is identified in the LEP "by like descriptions or by descriptions that incorporate any" of those itemised descriptions. 24 The Applicant argued that the Court of Appeal decision in Punnett overrules Bignold J in Druitts when considering what these words mean. Druitts and Punnett are not directly comparable cases on their facts or the arguments put to the Court. Punnett does not refer to Druitts. 25 In Punnett the Court of Appeal considered whether land zoned 6(b) (Private Recreation Zone) could be categorised as land described as "open space" pursuant to the relevant schedule of SEPP 5 equivalent to Sch 1 to SEPPSL, such that SEPP 5 did not apply to the subject land. In Punnett no textual markers from the zoning map itself indicated that the subject land could be described as "open space". However, the zoning map contained a legend which categorised the 6(b) (Private Recreation Zone) in the "open space" group. In the absence of any textual reference to "open space" in the relevant local environment plan, Mason P (with whom Beazley JA and Ipp AJA agreed) found at [31] to [35] that the description of the subject land in the legend was sufficient to identify the subject land as within a group identified in the schedule.

26 It is clear from Punnett that what is required in determining whether the site can be categorised as a like description of land itemised in Sch 1 is a textual approach to the matter. However, as Mason P explains at [32] to [33] this does not mean that: the only verbal descriptions capable of attracting the Schedule are those to which the environmental planning instrument assigns some discrete operative effect … lettering and descriptions on maps to planning instruments may explain the purposes or uses which are permissible on particular land. 27 Mason P added further at [35] that: Sch 1 does not require the words to be operable or functional in the sense of explicating the zoning parameters, or indeed any other operative part of the LEP. It is sufficient, in my view, that they are used descriptively with reference to the subject land.

28 In Punnett the heading "Open Space" in a table appearing on the zoning map was held to be a description of land falling within the schedule. That phrase did not otherwise appear anywhere in the relevant instrument. The Court of Appeal did not expressly consider whether the zone objectives in that case were a relevant consideration in determining whether the subject land could be described as a category of land listed in Sch 1 of SEPP 5. 29 Druitts considered the same wording in Sch 1 of SEPP 5 as now appears in Sch 1 of SEPPSL. In Druitts, Bignold J held at [14] that, recognising that the schedule adopts a "deliberately flexible verbal formula", the itemised descriptions in the schedule of SEPP 5 should be taken as a reference to the whole of any one of the descriptions contained in Sch 1, rather than as a reference to part of any one of the verbal descriptions. I adopt his Honour's findings at [14] and [15] in this regard. At [21] to [24], Bignold J considered whether reference to zone objectives "would create such unreasonable or inconvenient or unjust results as to warrant, as a matter of construction, outright rejection of even the possibility that the zone objectives may be held to be a source of identifying relevant land" for the purpose of Sch 1. I also adopt his reasoning at [21] to [24] and his conclusion that express zone objectives can be considered in this context. 30 Bignold J at [28] considered that in order for the relevant zone objective in that case to qualify as a source identifying relevant lands for the purposes of Sch 1 to SEPP 5, two conditions needed to be satisfied: (i) the expression "subject to hazard from coastal erosion and storms (or both)" must satisfy the verbal description of Schedule 1 by being either a "like description" or a "description that incorporates" any of the verbal descriptions contained in Schedule 1 (since it is obvious that the expression does not correspond, in terms, with any of the verbal definitions contained in Schedule 1); and (ii) it must be legitimate for the precise identification of the land postulated in the zone objective to be "subject to hazard from coastal erosion and storms (or both)" to be achieved by reference to "another document or to extrinsic facts" (being an expression employed by Gibbs CJ in giving one of the majority judgments in Dainford Ltd v Smith (1985) 155 CLR 342 at 348).

31 In Druitts, Bignold J did not finally resolve whether the relevant schedule applied because, given his condition (ii), he needed further evidence in order to determine from extrinsic material whether it was satisfied in this case. 32 The approach adopted in Punnett does need to be considered in the context of Druitts, which has similar facts to this case, to determine if the approach in Druitts ought be followed. I consider that the zone objectives may be a relevant consideration in the determination under Sch 1 of SEPPSL if the zone objectives provide relevant and clear descriptors of the subject land. This is consistent with the approach taken by Bignold J in Druitts in his condition (i). It is also broadly supported by the approach in Punnett which takes a broad view of the text in the LEP which may be referred to, as demonstrated in [33] and [35] set out above at par 27. I agree with the Council that there is no conflict between Druitts and Punnett in this regard. However, I consider that condition (ii) of the test espoused by Bignold J in Druitts is inconsistent with Punnett to the extent that it requires further determination of whether the zone objectives do identify land to which the schedule applies by reference to extrinsic facts. This is clearly contrary to the textual approach considered by the Court of Appeal in Punnett. Accordingly, while I accept that zone objectives may be able to provide identification by description of the land, in accordance with Punnett, the zone objectives must identify with words of like description those matters identified in Sch 1 without reference to extrinsic material. Therefore it is necessary to determine if the zone objectives in this case are able to provide that necessary identification by description of the land.

33 The LEP provides for a separate zone 7(a) Conservation Zone and zone 7(b) Environmental Protection Zone. The opening words of Sch 1 clearly provide that like descriptions beyond those in the zone name are able to come within Sch 1 as is clear from both Punnett and Druitts. I do not accept the Applicant's submission that as the site was not zoned 7(a) Conservation Zone or 7(b) Environmental Protection Zone that the land cannot be described by words of like description not found in the zone heading as "conservation" or "environment protection". The zone objectives state that the objectives of the 7(c) zone are: (a) to provide for the development of land for purposes which will not, or will be unlikely to, prejudice its possible future development for urban purposes or its environmental conservation" and

(b) to conserve the rural or bushland character, and the biodiversity values or other conservation values, of the land. 34 I consider that zone objective (a) does identify by description the site as either an area of "conservation" or "environment protection" pursuant to Sch 1 given the reference to "environmental conservation". I agree with the Council that in referring to the need to avoid prejudicing environmental conservation on the site the objectives satisfy the words in Sch 1. I do not consider that the reference to other objectives, such as possible future development for urban purposes, not falling within Sch 1 precludes its application where part of the objectives do satisfy its requirements.

35 I further consider that zone objective (b) provides a "like description" of the land as "conservation" land pursuant to Sch 1. In my view, as zone objective (b) provides that the objective of the zone is to conserve the biodiversity values and conservation values of the land, the site is sufficiently identified by words of like description as "conservation" land. Objective (b) of the 7(c) Environmental Investigation Zone is solely to ensure that the biodiversity and conservation values on land within the zone are preserved. In this sense, I consider that the site is sufficiently identified by words of like description as "conservation" land.

36 Accordingly, I find that the zone objectives describe the site as an area of "conservation" or "environment protection" in Sch 1 pursuant to cl 4(2) of SEPPSL. It follows that SEPPSL does not apply to the site and that the Applicant's development application cannot proceed.

Orders 37 The Court makes the following orders:

1. The Applicant's Class 4 application is dismissed.
2. The question of costs is reserved.
3. Exhibits are to be returned.

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