Case: Neowarra v Western Australia [2003] FCA 1402
Outcome: referred to
In relation to the gravel pits, the applicants' position was that none of the existing gravel, the access tracks, nor the additional areas, were adjacent to the relevant public work, being the Stuart Highway or Buchanan Highway. It is convenient to commence by considering what is meant by "adjacent" in s 251D. This issue was addressed in Neowarra v Western Australia [2003] FCA 1402 by Sundberg J. His Honour said the following (at [656]): The word "adjacent" does not just mean "next door to" or "very close to". Its meanings include "adjoining", "contiguous" and "bordering". See the Shorter Oxford English Dictionary (adjoining and bordering) and the Macquarie Dictionary (contiguous). The tracks here fit those descriptions. They adjoin, border and are contiguous to the site even though they only meet it over a small area, namely the width of the track. 215 I accept what his Honour concluded about the meaning of the word. However, the context in which it appears is relevant and ultimately what must be ascertained is what the extended definition was intended to comprehend. That task is not completed by simply ascribing a meaning to one particular word. For my part, I doubt that mere connection in any form between the putative adjacent land and the land on which the public work was constructed, established or situated will engage s 251D. For example a public road might be lit by lights on poles connected by cable running parallel to the road. Those poles and lights might reasonably be viewed as a public work or part of a public work (the road). Ordinarily, one would expect that there would be one or a number of feeder power lines providing power to the network of poles, lights and cable. Putting aside the question of whether any feeder power line was itself a public work, it may be doubted that s 251D was intended to result in the land the feeder power line travelled over for its entire length (and perhaps any land over which lines in the power grid to which the feeder power line was connected and conceivably land on which any power station creating the power was located) was to be treated as land adjacent to the road simply because, at one point, that land intersected the land on which the road (and poles) was constructed. 216 The plain purpose of the extended definition is, in my opinion, to ensure, as its central objective, that areas around and immediately proximate to land on which public works were located were available (and unencumbered by native title rights and interests) to facilitate the initial construction or establishment and ongoing operation of the works. Sundberg J found in Neowarra , that access roads leading to the sites on which public works were located constituted land adjacent to the sites. However, the present factual situation is quite different. The only link between the gravel pits and the highways were the access tracks. The Northern Territory did not submit that the gravel pits were themselves public works. It does not follow from Sundberg J's conclusion that land over which very long access roads travel to connect certain sites (here, gravel pits) to a public work, and those sites themselves, are adjacent to the relevant public work. It may be, as the applicants submitted, that what is required for particular land or waters to be "adjacent" as that term is used in s 251D is that there be both connection and geographical proximity. In the present case I am satisfied that the four gravel pits used to maintain the Stuart Highway and their associated access tracks are adjacent to the highway in the sense contemplated by s 251D. 217 However, the seven gravel pits associated with the Buchanan Highway, and the very long access roads to them cannot, in my opinion, be described as adjacent to those highways. Accordingly only four of the eleven existing gravel pits fall within the scope of s 251D. In relation to the additional areas near the existing gravel pits associated with the Buchanan Highway, it follows that they are not land "adjacent" to a public work within the meaning of s 251D. 218 It follows from the reasoning concerning the meaning of "adjacent" in s 251D that the two storage dams approximately 100 kilometres from the Buchanan Highway and their access roads also were not adjacent to the highway and not comprehended by the extended definition.