Cheetham v Goulburn Motorcycle Club Inc

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. McCOLL JA and SACKVILLE AJA: Basten JA has explained the issues in this appeal. We shall not repeat what his Honour has said. However, it is convenient to recount in a little more detail the process by which the third respondent (Council) granted development consent for a "Motorcycle Facility" on land at Sydney Road, Boxers Creek, Goulburn (Land).

The consent

1. The Council granted the original development consent on 18 August 2015 in a Notice of Determination (Original Determination) issued to the second respondent (Spacelab), pursuant to s 81(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Spacelab lodged the development application on behalf of the first respondent (Club), the registered proprietor of the Land.
2. The Original Determination granted consent to the proposed development of a Motorcycle Facility subject to the conditions stated in the attached schedule. General Condition 1 provided as follows: "This consent is for the construction and operation of a motorcycle facility for the subject property only. The development is to be carried out generally in accordance with the plans and details submitted with the application except where varied by the following conditions of consent. The development consent incorporates the plans and documents stamped and detailed below:" (Emphasis added.) There followed a chart identifying thirteen documents including the following: Plan No/Ref Description Prepared by Date Unreferenced Additional information letter SPACELAB 1 May 2015 Unreferenced Site Plan SOWDES Pty Ltd March 2015 Unreferenced Statement of Environmental Effects SPACELAB March 2015

1. General Condition 1 stated that: "In the event of any inconsistency between conditions of this approval and the plans and documentation referred to above, the conditions of this approval prevail. In the event of any inconsistency between documents cited above, the most recent document shall prevail for the inconsistency."
2. General Condition 2 provided as follows: "This consent is for the use of the riding and racing of motorbikes within the subject property and in the areas marked on the approved plans described above. As per the application information, the consent is limited to the following unless otherwise approved by Council: • The facility shall be limited to a maximum use of 36 days within the first calendar year (30 full day equivalents) where motorbike activities are undertaken and in a manner consistent with the Noise Report of the Acoustics and Vibration Unit, of the University of New South Wales. • Use shall be limited to local and regional events. Larger events including National competitions are not part of this consent. • Operational times shall be limited to: • Thursday to Sunday 9.00 am to 5.00 pm, plus • One additional weekday to a maximum of 8 times per year 9.00 am to 5.00 pm, plus • A maximum of 8 'twilight' events per year between 5.00 pm and 8.30 pm weekdays. • All activities on-site shall be limited to: • motorbikes which have been scrutinised and passed by the Motorcycling Australia noise standard requirements • days where the adjacent Speedway is not operational." (Emphasis added.)
3. The Club subsequently applied to the Council to review Condition 2 of the Original Determination. On 17 February 2016, the Council issued pursuant to s 82A of the EPA Act a Notice of Determination of the Club's application (Review Determination). The effect of the Review Determination was to remove the words "unless otherwise approved by Council" from Condition 2 and to add the following paragraph to Condition 2: "For each subsequent year to the first calendar year, the use of the facility shall be limited to a maximum of 108 days (90 full day equivalents) subject to compliance with condition 6 and the applicant demonstrating that the use of the facility complies with the noise levels contained in condition 4."
4. The Review Determination identified the same thirteen documents as had been identified in the Original Determination, although they were set out in a different order. [1] We shall refer to the Original Determination as varied by the Review Determination as the Consent.
5. The Site Plan referred to in General Condition 1 of the Consent is reproduced in an Appendix to this judgment. Although it is difficult to read, the Site Plan shows a small proposed club house with the dimensions of the roof area being approximately 100 m2. It also shows three apparently small areas set aside for spectators near the motorcycle circuit. Provision is made for 40 car parking spaces and an additional 20 spaces for larger vehicles.
6. One of the documents identified in Condition 1 of the Consent is a floor plan for what is described as a "proposed canteen and ammenities [sic]", corresponding to what is described as the "club house" on the Site Plan. The floor plan shows that the building will have a total of four toilets. The Site Plan does not incorporate buildings providing amenities for visitors other than the club house.
7. The letter of 1 May 2015 from Spacelab (May Letter) referred to in Condition 1 of the Consent addressed requests made by the Council for additional information in relation to the development application. The letter included the following information: "1. Details of Proposed Use The table at Part 3.1 of the Statement of Environmental Effects (SEE) submitted with the Development Application has been expanded to provide the additional detail Council has requested in relation to the frequency and timing of the various riding activities proposed to be carried out by the GMCC at the proposed facility, and the type and number of motor cycles used. Activity Frequency Hours Likely Event Duration No. of Races Type of Bikes Used Number of Bikes Used Social Riding/Practice Between 9:00 am and 5:00 pm Thursday to Sunday 8 hours 0 All classes Approx. 20-40b (Intra-Club) (on other days to a maximum of 8 per year) Daytime Club Meets Up to 6 per year Between 9:00 am and 5:00 pm Saturday or Sunday 8 hours 30-40a All classes Up to 150 (Intra-Club) Twilight Club Meets Maximum 8 per year (between October and April) Between 5:00 pm and 8:30 pm Weekdays only 3.5 hours 10-15a All classes Up to 80 (Intra-Club) Inter-Club Meets Up to 2 per year Between 9:00 am and 5:00 pm Saturday or Sunday 8 hours 30-40a All classes Up to 150

a - the number depends on number of entrants as classes can be combined b - this number includes both junior (on bikes with lower engine capacity) and senior riders. … 7. RMS Referral Comments SPACELAB have received and reviewed the referral comments Council received from Roads and Maritime Services, and have also received and reviewed (and are thankful for) Council's partial response to those referral comments. In response to the first of the five points made in the RMS' request for additional information: • while it is difficult to put an exact number on the likely attendees at any intra-club or inter-club activity or event at the proposed facility given the number of participants can vary widely, it can be reasonably expected that any event (given the GMCC membership of 140) could reasonably attract a maximum of approximately 250 people at any one time, and a maximum of approximately 400 people over an entire day. The number of attendees is generally likely to be less those [sic] expected maximums, and certainly far less for practice sessions, which will make up the bulk of the use of the facility; • participants in the various events (50-100, some in groups) would travel to the facility by car or utility/SUV vehicles with trailers to transport motor cycles and associated equipment to the site; • spectators would generally arrive with participants; • given all of the above, and given there are no generation rates for such a facility specified in the RMS' Guide to Traffic Generating Developments, a 'peak hour' on a general weekend event day (which would probably occur between 8:00 a.m. to 9:00 a.m.) would likely result in approximately 30-40 vehicles arriving via Speedway Road (which has extremely low traffic volume) within that hour - or one vehicle every 1.5-2 minutes."

1. The Statement of Environmental Effects (SEE) was prepared by Spacelab. Section 3 of the SEE explained the proposal embodied in the development application. Section 3.1 stated as follows: "3.1 Use The proposed motorcycle facility would be used, principally, for the riding of motorbikes by members of the Goulburn Motor Cycle Club (GMCC)." Section 3.1 then set out in tabular form the proposed activities to be carried out at the Motorcycle Facility. The table was replaced by the updated version in the May Letter.

Primary Judge's error

1. We agree with Basten JA that the primary Judge erred in failing to consider for himself whether the Consent issued by the third respondent (Council) to the first respondent (Club) was for a use prohibited by the Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009). The primary Judge was required to determine whether the Consent, properly construed, purported to permit a development on the Club's land for the purpose of "Recreation facilities (major)". [2]

Construction of LEP 2009

1. The expression "Recreation facilities (major)" appears in "Zone RU6 Transition" in the Land Use Table in the LEP 2009. The objectives of Zone RU6 are: "• To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities. • To minimise conflict between land uses within this zone and land uses within adjoining zones."
2. The developments that are prohibited in Zone RU6 include "Recreation facilities (major)". LEP 2009 defines "recreation facility (major)" to mean: [3] "a building or place used for large-scale sporting or recreational activities that are attended by large numbers of people whether regularly or periodically, and includes theme parks, sports stadiums, showgrounds, racecourses and motor racing tracks".
3. We agree with Basten JA that the five facilities specified in the definition of "recreation facility (major)" are intended to be illustrative of the general requirements stated in the first part of the definition. That is, each of the five identified facilities is within the definition only if it is "a building or place used for large-scale sporting or recreation activities that are attended by large numbers of people". It follows that use of the Land for the purpose of "motor racing tracks" is not a prohibited use as such for the purposes of Zone RU6. It is only prohibited if development consent permits motor racing tracks to be used for large-scale sporting or recreation activities that are attended by large numbers of people, whether regularly or periodically.
4. Even if the five identified facilities were intended to be exhaustive of the facilities included within the definition, the expression "motor racing tracks" would not be read in isolation. Each of the other four facilities clearly would be used for large-scale sporting or recreation activities that are attended by large numbers of people, whether regularly or periodically. The specified facilities constitute a genus, the common feature of which is that the facility is used for large-scale sporting or recreation activities that are attended by large numbers of people. Accordingly, use of a facility for the purpose of "motor racing tracks" is within the definition only if the use is for large-scale sporting or recreation activities that are attended by large numbers of people.
5. When the definition is understood in the manner identified in the preceding two paragraphs, it can be seen that an element common to each of the identified facilities is the use of a building or place for sporting activities on a large scale to which large numbers of members of the public are invited to attend. Theme parks, sports stadiums, showgrounds and racecourses also share the characteristic of being commercial undertakings which seek to attract paying customers. Thus, members of the public who attend events at these four places will normally (if not universally) be required to purchase a ticket. The numbers of spectators or participants might vary considerably, but could be expected often to run into thousands, perhaps tens of thousands.

The approach to construction

1. The ordinary principles of interpretation apply to a development consent as they do to other statutory instruments. [4] However, in construing a development consent it is necessary to bear in mind that a development consent is a public document which is often said to operate in rem. [5]
2. The approach that should be taken to the construction of a development consent was explained by Hope J in Auburn Municipal Council v Szabo: [6] "… in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved." In that case, Hope J held that an approval for the use of a building as a garage was not subject to an unexpressed limitation that the garage could only be used to store trucks. The only documents incorporated in the development consent were the plans and specifications and these did not support the imposition of a condition restricting use of the garage to trucks.
3. Difficulties can arise where a development consent refers to or specifically incorporates other documents in the conditions of consent. In Allandale Blue Metal Pty Ltd v Roads and Maritime Services [7] (Allandale), Meagher JA summarised the relevant principles as follows: [8] "[43] The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication. [44] Evidence may also be led to identify a thing or place referred to in the consent … That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose. [45] A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it. However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself." (Citations omitted.) Meagher JA observed that what is sufficient to constitute incorporation by necessary implication for the purposes of these principles is less clear. [9]
4. One frequently cited statement warning of the dangers of travelling too far beyond the development consent itself was given by Else-Mitchell J in Ryde Municipal Council v The Royal Ryde Homes (Royal Ryde Homes): [10] "the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent."
5. His Honour held that development consent for use of premises as a laundry did not incorporate any restrictions on the hours of use even though the applicant stated in the development application that it intended to use the premises only during specified hours.

The present case

1. The Consent granted by the Council in the present case does not reflect close attention to the stricture of Else-Mitchell J in Royal Ryde Homes that: [11] "the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty". Condition 1 of the Consent simply incorporates thirteen documents without identifying which parts of the documents, if any, are intended to constitute conditions of consent.
2. The Consent is "for the construction and operation of a motorcycle facility" on the Land. It is clear from Condition 2 that the Consent authorises the use of the Land for the riding and racing of motorcycles in the areas marked on the approved plans. Condition 2 also makes it clear that the activities authorised by the Consent are subject to limitations. Thus use is "limited to local and regional events" and "[l]arger events … are not part of this [C]onsent".
3. These limitations suggest that the owner or occupier of the Land for the time being is not entitled to operate "large-scale sporting or recreation activities that are attended by large numbers of people" within the meaning of that expression in the definition of "recreation facility (major)". The exclusion of "larger events" from the range of permissible activities makes it difficult to contend that the Consent authorises large-scale sporting activities. It is equally difficult to contend that the permitted motorcycle activities are of a kind that are attended by members of the public in large numbers.
4. To the extent that the language of the Consent leaves uncertain the scale and nature of the activities permitted on the Land, it is necessary to consider how far the contents of the documents referred to in Condition 1 can be taken into account. It is clearly impermissible to construe the Consent on the basis that everything stated in the May Letter or the SEE is intended to be a condition of consent. For example, the estimates given in the May Letter of likely attendees at intra-club or inter-club events are statements of intention that cannot be construed as conditions limiting the number of persons allowed to attend motorcycle events.
5. But in our view, the Site Plan and other plans specifically identified in Condition 1 of the Consent fall into a different category. It is impossible to understand the nature and scope of the development approved by the Council without referring to the Site Plan. If there is any doubt about the scale of the activities permitted by the Consent, that doubt cannot be resolved without consulting the Site Plan showing the works to be undertaken on the Land. [12] Moreover, the Site Plan is a document to which any potential purchaser or other person interested in the development consents relating to the Land might be expected to have resort.
6. The Site Plan strongly suggests that the Consent does not authorise motorcycle activities on the Land that will attract members of the public in large numbers. The Consent permits the construction of only one building on the Land that might cater for the needs of participants or spectators attending the facility. The Site Plan does not incorporate the permanent structures that are characteristic of theme parks, sports stadiums, showgrounds or racecourses that attract members of the public in large numbers. For example, no provision is made for shelter (other than the club house) or for facilities to provide refreshments to participants or spectators. The Site Plan allows for a total of four permanent toilets on the Land. The facilities to be provided as contemplated by the Consent are ill-adapted to the purpose of attracting large numbers of members of the public to events on the Land.
7. The Site Plan sets aside two apparently small areas for spectators. There is nothing to indicate that any buildings or permanent structures will be erected on these areas. The limited provision for spectators militates against the appellants' submissions that the Consent contemplates "large-scale" motorcycle events conducted with a view to attracting members of the public in large numbers as spectators. Similarly, the limited provision for parking, although by no means conclusive, is a further indication that motorcycle racing and related activities are to be conducted on a relatively modest scale.
8. As we have explained, the definition of "recreation facility (major)" in the 2009 LEP, properly construed, is not satisfied simply because particular numbers of people are likely to attend motorcycle events conducted on the Land in conformity with the Consent. The motorcycle activities must be conducted on a "large scale" and must be attended by large numbers of people. The definition requires the attendees to include large numbers of members of the public (as distinct, for example, from the limited membership of a club) who are required, at least on some occasions, to pay for admission to the events.
9. For these reasons, the Consent does not permit the Land to be developed for the prohibited use as "recreation facility (major)".

Orders

1. The appeal should be dismissed. The appellants should pay the costs of the first and second respondents (the Club and Spacelab).
2. BASTEN JA: In August 2015, the Goulburn Mulwaree Council approved a development application for the construction of a proposed motorcycle facility on Sydney Road, near Goulburn. (A revised application was approved in February 2016.) On 2 March 2016 the appellants, who had objected to the development, sought judicial review of the determination in the Land and Environment Court. On 6 July 2016 that application was dismissed. [13] The matter before this Court is an appeal from that judgment.
3. The question before the Land and Environment Court was whether the proposed development was a development of a kind permitted with consent pursuant to the Goulburn Mulwaree Local Environmental Plan 2009 ("the LEP"). The area was zoned "RU6 Transition", the first object of the zone being to protect and maintain land that "provides a transition between rural and other land uses of varying intensities or environmental sensitivities." The second object was "[t]o minimise conflict between land uses within this zone and land uses within adjoining zones." A number of specified uses were permitted with consent; more generally, that which was permitted with consent included any development not specified as permitted without consent or prohibited. Numerous uses were prohibited, but the question in the present case was whether the proposed development fell within the prohibited use identified as "recreation facilities (major)".

Issues on appeal

1. The definition of "recreation facility (major)" was in the following terms: recreation facility (major) means a building or place used for large-scale sporting or recreation activities that are attended by large numbers of people whether regularly or periodically, and includes theme parks, sports stadiums, showgrounds, racecourses and motor racing tracks.
2. Another defined use which was not prohibited and was therefore said to be permitted with consent was the following: recreation facility (outdoor) means a building or place (other than a recreation area) used predominantly for outdoor recreation, whether or not operated for the purposes of gain, including a golf course, golf driving range, mini-golf centre, tennis court, paint-ball centre, lawn bowling green, outdoor swimming pool, equestrian centre, skate board ramp, go-kart track, rifle range, water-ski centre or any other building or place of a like character used for outdoor recreation (including any ancillary buildings), but does not include an entertainment facility or a recreation facility (major).
3. It was common ground in the Court below (and in this Court) that the question whether the development application, as approved, was a permitted use was an issue to be determined by the court undertaking judicial review. In administrative law terms, that question was identified as involving a "jurisdictional fact". However, that designation can be misleading. Although it includes questions of fact, it also includes the construction of the LEP and the application of the relevant terms to the proposed development. The issue was whether there was an essential precondition to the exercise of a power which was not satisfied. [14]

Approach of trial judge

1. The trial judge identified four questions which were to be determined by the Court in order to resolve the judicial review application. These involved extracting from the definition of "recreation facility (major)" a number of elements, which were then separately considered. While it was important to note that there were a number of elements which needed to be addressed, care needed to be taken in separating the definition into parts; the definition needed to be read as a whole, though not without reference to its constituent parts.
2. The focus of the appeal was on the approach adopted by the trial judge to the questions to be resolved. The reasoning commenced with the following propositions: "[52] It is clear that, for the purposes of these proceedings, proper characterisation of the development requires consideration of a jurisdictional fact: in this instance, whether or not the development is permissible in this zone. [53] This determination is to be made on the evidence before the Court in these proceedings and is not confined to the material that was before the Council."
3. Unfortunately, in considering each of the terms used in the definition of the relevant prohibited use, the trial judge did not adopt that approach. First, he considered the phrase "large-scale sporting or recreation activities". All he said with respect to that phrase was as follows: "In assessing what is contemplated by the descriptor 'large-scale sporting or recreation activities', it is clear that the Council has considered the nature of the works proposed by the application, including the extent of the necessary waste water treatment system required, and concluded that the facilities proposed are not ones that would accommodate activities that would fall within this element of the definition."
4. Secondly, he turned to the phrase "large numbers of people". He noted the evidence that on days of "most intense activity" there would be 600 or so people and on other occasions involving regional events, there would be some 450 people present. [15] The judge then concluded that "it was not unreasonable for the Council to conclude that the Club's activities could not fall within the description of the events attended by large numbers of people", [16] and that "[i]t was certainly open to the Council to conclude that there was a functional maximum number of spectators limited by the proposed facilities." [17]
5. The next two matters involved what was meant by the word "includes" and by the phrase "motor racing track". It is convenient to set out in full the reasoning with respect to the latter phrase, commencing with the reference to submissions made by senior counsel for the applicants: "[74] However, the position Mr Larkin advanced was that, as a matter of fact, the proposed facility should be regarded as being a 'motor-racing track' and, as a consequence of the inclusionary nature of the final portion of the LEP definition, it was deemed to fall within this provision and, as the further consequence, it was rendered prohibited. [75] It seems to me that Mr Larkin's concession (a necessary one, in my assessment) somewhat shifts the nature of that which I need to consider. This arises because the determination by the Council of how to categorise the proposed facility (not being a motor-racing track for the purposes of 'recreation facility (major)') is one that was made by the Council on the basis of the factual information provided by the Club and its … advisers. [76] Indeed, as earlier observed at [32], the Council officer's assessment report considered the objector submissions on this point and rejected them. [77] That is a classic merit assessment determination: a determination on the facts not amenable to be appealed against in judicial review proceeding on any ordinary basis seeking review of the merits of that decision."
6. It is apparent from each of the conclusions set out above that the trial judge did not in fact undertake the exercise he had set for himself, of determining whether the development properly characterised was a prohibited development, but rather addressed the different question, namely whether the decision of the Council was afflicted by any legal error. The fact that the trial judge thus misunderstood the Court's function was confirmed by the passage directly following that set out above in relation to "motor-racing track". The judge then stated that no ground had been advanced based on "Wednesbury unreasonableness", noting that "this was the only possible basis" for challenge to the Council's August 2015 decision. "Wednesbury unreasonableness" is a description of a legal error committed by an administrative body; it is irrelevant in circumstances where the reviewing court is required to find the facts constituting a precondition to the exercise of a function by an administrative body. [18]
7. Consistently, that erroneous approach is confirmed by the conclusions reached by the trial judge in the following passages: "[83] I have concluded that the Council, through its merit development assessment and determination process, determined that the Club's proposed facility might properly be classified as a 'recreation facility (outdoor)' on the basis of the factual material before it. Proper consideration of the proposed facility, when tested against the definition of 'recreation facility (major)', discloses no factual features that would have required the Council to determine its characterisation as falling within that definition. [84] Properly understood, the implied conclusion of the Council that the first elements of the definition are not applicable to the proposed facility was open to it and, on an assessment of fact and degree available to the Council, it was also open to the Council to conclude that the proposed facility did not constitute a 'motor-racing track' of a type requiring to be brought within the inclusionary elements of the concluding section of the definition of 'recreation facility (major)'. [85] As these proceedings do not provide a basis upon which the merits of the factual assessment and determination process undertaken by the Council [can be challenged?] and no error has been shown to exist in the assessment or determination processes that would vitiate the outcome determined by the Council, it follows that the Applicants must fail and the summons be dismissed."
8. The trial judge having determined the challenge before him on a legally erroneous basis, it is necessary to consider what course this Court should take. The orders sought in the notice of appeal included a declaration that the consent was invalid. In this Court both the proponents and the Council submitted, by a notice of contention, that "[t]he primary judge ought to have found that the development the subject of the development application did not fall within the definition of "recreation facility (major)" and was for that reason permissible with consent. It is, therefore, both appropriate and necessary for this Court to resolve the issue in dispute between the parties.

(a) construing the LEP

1. There was (and could be) no real dispute that the proposed use involved a "motor racing track". The question was whether all motor racing tracks fell within the prohibited use. The appellants' primary submission was that all motor racing tracks were prohibited uses; the respondents submitted that only those which fell within the opening words of the definition were included.
2. The structure of the definition militates against the reading proposed by the appellants. The first limb of the definition identifies what the defined term "means" by reference to a descriptive (composite) criterion; the second limb identifies specific uses which are said to be included. The fact that the examples follow the conjunctive "and" is inconsistent with them constituting a separate, or alternative, basis for satisfying the definition. Further, the verb "includes" is apt to serve an illustrative or an expansionary function. If the items specified would not ordinarily be understood to fall within the descriptive criterion, the effect may be expansionary. If, on the other hand, they naturally fall within the descriptive criterion, they may be understood as illustrations.
3. Generally speaking, it is not good drafting practice to use the verb "includes" when indicating an exhaustive list. However, the term "means" is properly so used. [19] As Kitto J stated in YZ Finance Co Pty Ltd v Cummings: [20] "Unlike the verb 'means', 'includes' has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject." And as has been succinctly stated by Herzfeld, Prince and Tully: [21] "The words 'means' and 'includes' are sometimes used in combination, in the form 'X means Y and includes Z'. That exhaustively defines X to mean Y but makes it clear, by way of clarification or extension, that this includes Z."
4. The appellants' construction would lead to the conclusion that the term "motor racing tracks" is expansive in the sense that all such motor racing tracks will be included, whether or not they satisfy the descriptive criterion in the first limb of the definition. There is, however, good reason for not adopting that approach. If that approach were to apply to "motor racing tracks" it should also apply to the other four inclusions. However, read together, the inclusions provide clarity with respect to the descriptive criterion, which uses imprecise language taking its meaning from its context. [22] Thus, what may be a "large-scale" activity and what may be a "large" number of people will depend on the kind of uses being considered.
5. Further, the composite descriptive criterion includes activities "that are attended" by large numbers of people, indicating that spectator sports are involved. The examples all involve spectator activities which, in the case of sports, are likely to involve competition ("sports stadiums … race courses and motor racing tracks") and recreational activities involving numbers of members of the public ("theme parks, … showgrounds"). Without those examples, the indefinite descriptions would lack a scale against which a proposed development or use might be assessed. Accordingly, read as a whole, the examples should be seen as illustrative and, indeed, a helpful, if not an essential, elaboration of the first limb of the definition. There is no advantage to an expansionary reading; such a reading would not fit well with the other four items (that is, other than motor racing tracks). It follows that the appellants' primary submission should be rejected.
6. The appellants' alternative submission was that the items provided by way of illustration gave a relevant scale by which to judge what was identified by the descriptive criterion and, so understood, the proposed development fell within this category of prohibited uses. That submission should be accepted.
7. The proponents also relied upon the fact that there was potential overlap between the prohibited use and the permissible use of "recreation facility (outdoor)". That was because the latter definition included references to "go-kart track" and to "any other … place of a like character used for outdoor recreation". Because a go-kart is a form of motor vehicle which is commonly raced, it was apparent, the submission continued, that some motor racing tracks did not fall within the prohibited use.
8. It may be accepted that a go-kart is a motor vehicle and that go-kart tracks may be used for racing. However, the fact of a potential overlap does little to assist the proponents' case. The definition of "recreation facility (outdoor)" ends with the statement that the identified category of uses "does not include … a recreation facility (major)." Thus, the possibility of overlap with the category of "recreation facility (major)" is acknowledged and the latter category is given predominance. Accordingly, the fact that there is a possible overlap is largely immaterial.
9. The first limb of the definition refers to a place "used for" such activities. There is a degree of ambiguity in that language. Clearly the proposed development will not have been undertaken and accordingly the description cannot be taken to refer to current activities. The necessary adaptation of the language of the definition must be to refer either (a) to a use which is intended to be carried out, or (b) to a use which is capable of being carried out; the alternatives being apt to describe either the subjective intentions of the proponents of the development, or the objective capacity of the development in the terms proposed.
10. The appellants argued for an objective assessment of capacity, based on the material contained within the application and the consent determination. Reference was made in the course of submissions to the reasoning of this Court in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd [23] and to Woollahra Municipal Council v Minister for the Environment; [24] however, the former case dealt with existing uses and the latter with the limits on a purposive power - neither provided much assistance in relation to the present question. Nevertheless, at least by way of analogy, the statement of Gleeson CJ in Woollahra Municipal Council may be adopted: [25] "In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the persons involved in that activity. The question in the present case is whether the use to which the land is being put, which is to be identified by reference to the nature of the activity being conducted upon it, is a use for a purpose authorised by the Act." The application of that statement must be qualified for the purposes of the present case: the relevant activity is that which is proposed, not that which is occurring.
11. The respondents did not in terms deny the relevance of such an assessment, but submitted that the development should be understood to be limited by the social (and non-commercial) purposes of the proponent Club and the "family and friends" nature of the race days which it proposed to organise. If the facility were to be taken over by a commercial entity, the proponent contended that a further development application would be required.

(b) relevant evidence

1. So far as the evidence went, the difference between the two approaches was more nuanced than the statements set out above suggest. However, the submissions in favour of the competing approaches relied on cases dealing with the construction of the terms of a development consent. Those cases are not determinative and may not be relevant. At least in principle, the issue could be raised in a court prior to any determination of a development application by the relevant consent authority. If the power to grant consent is not engaged, a matter which can only be determined authoritatively by a court, the fact that consent has been granted, on specified terms, should be irrelevant.
2. On the other hand, because the existence of a precondition is likely to involve both a question of construction of a relevant statutory instrument and an assessment of the facts relevant to the satisfaction of the condition of engagement, the opinion of the primary decision-maker may be relevant to the latter part of the exercise. So much was accepted in City of Enfield v Development Assessment Commission [26] adopting the reasoning of Mason J in The Queen v Alley; Ex parte NSW Plumbers & Gas Fitters Employees' Union [27] and The Queen v Ludeke; Ex parte Queensland Electricity Commission. [28] The effect of a consent determination may therefore be relevant. Consent had been granted in the present case.
3. In Hillpalm Pty Ltd v Heaven's Door Pty Ltd, [29] Meagher JA stated: [30] "Moreover, the council's consent to the subdivision operates to create a right in rem, so that it may be relied on (inter alia) by all later transferees of any lot. This has been decided by a long series of cases at both a State and Federal level. It has also been decided that the transferee from time to time of any lot which has the apparent benefit of any condition may enforce that condition …."
4. That approach was not accepted by the High Court on appeal. [31] However, in considering the power conferred on a court under s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (to "remedy or restrain a breach of this Act"), the majority stated: [32] "In the common case where the relevant development of the land is a particular permitted use of the land, any person who uses the land in some other way carries out a development of the land (by using it in that other way) contrary to the consent that was given. It matters not whether the user of the land was the applicant for consent."
5. On this approach it should be accepted that what travels with the land and applies to any user of the land is the consent given by the relevant consent authority, subject to such conditions as may be imposed. For this reason, a somewhat inflexible approach has been adopted to the construction of a consent, which generally eschews reference to any document other than the consent and such documents as may be incorporated into the consent, expressly or by necessary implication. The authorities supporting such an approach were recently considered in Allandale Blue Metal Pty Ltd v Roads and Maritime Services. [33] Reliance was placed in Allandale on my summary of the earlier authorities in Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd. [34] However, in overturning the latter decision, the High Court noted that it was not necessary to address "[t]he general approach to construction of development consents" and that it was "not necessary in this case to consider what reference may be made to the development application to which the consent responds." [35] It should, perhaps, be inferred that such an inflexible approach may need to be revisited in the future.
6. For two reasons, the last issue is of little importance in the present case. First, the schedule of conditions in the Council's determination notice expressly incorporated various documents which accompanied the application, including the statement of environmental effects, an indicative site layout plan and a noise management plan. Secondly, and more importantly, the present case is not concerned with the proper construction of the consent, but rather with the identification of the scope of the proposal for which consent was sought.
7. It is possible in these circumstances to identify the nature of the activity to be undertaken by reference to relevant contemporaneous evidence, as explained by Spigelman CJ in Woolworths Ltd v Pallas Newco Pty Ltd. [36] That exercise may properly include reference to the statement of environmental effects lodged in support of the development application. Although the relevant material need not be limited to that before the consent authority, evidence as to the nature and history of the Club and the composition of its present membership was not directly relevant for that limited permissible purpose. The affidavit of the President of the Club, sworn on 25 May 2016, was of relevance at a level of generality, to the extent that it described the activities undertaken, presumably at similar facilities elsewhere.
8. Although the statement of environmental effects, dated March 2015, provided some background information in relation to the proposed use of the land, it was primarily directed to discretionary factors, such as the potential of the facility to reduce existing motorbike riding in environmentally sensitive areas, such as the nearby Mount Gray Reserve. [37] In any event, no issue was taken with the factual assessment undertaken by the trial judge, based on the objective circumstances as known at the time of the development proposal. The judge also took account of the constraints imposed on the use of the facility in the Council's determination of the application and no issue was taken with that approach.

(c) application of LEP to evidence

1. Applying the first limb of the definition, the proposed development must satisfy a three-part criterion. First, the motor racing track itself must satisfy the description of a "place used for large-scale sporting or recreation activities". The track was 1.8km long and may, according to the affidavit filed by the President of the Club, involve up to 40 riders being on the track at any one time. [38] The assessment of "large-scale … activities" must be undertaken with an eye to the likely effects on surrounding land. As the restrictions on noise contained within the conditions in the consent recognised, a feature of the proposed motorcycle racing track was that it would create significant noise, thus affecting the amenity of surrounding land. The number of machines operating at one time, and the period over which the operations would take place, were directly relevant to the scale of the activities.
2. The proposal satisfied the first element.
3. Secondly, the activities must be attended by large numbers of people. In relation to the likely number of persons in attendance, the second respondent provided the following information to the Council on 1 May 2015: "In response to the first of the five points made in the RMS' request for additional information: ● while it is difficult to put an exact number on the likely attendees at any intra-club or inter-club activity or event at the proposed facility given the number of participants can vary widely, it can reasonably be expected that any event (given the GMCC membership of 140) could reasonably attract a maximum of approximately 250 people at any one time, and a maximum of approximately 400 people over an entire day. The number of attendees is generally likely to be less than those expected maximums, and certainly far less for practice sessions, which will make up the bulk of the use of the facility; ● participants in the various events (50-100, some in groups) would travel to the facility by car or utility/SUV vehicles with trailers to transport motor cycles and associated equipment to the site; ● spectators would generally arrive with participants; ● given all of the above, and given there are no generation rates for such a facility specified in the RMS' Guide to Traffic Generating Developments, a 'peak hour' on a general weekend event day (which would probably occur between 8.00 am to 9.00 am) would likely result in approximately 30-40 vehicles arriving via Speedway Road (which has extremely low traffic volume) within that hour - or one vehicle every 1.5-2 minutes."
4. Further, the trial judge, in a passage not challenged on appeal, stated: [39] "[60] … Taking the case for the Applicants at its highest, based on Mr Toparis' evidence, even if there were to be more than one accompanying spectator per rider (making the assumption against the Club's interests that there might be up to two spectators per rider), the maximum number of people who would attend on the most intense activity day would be 600 or so (and this only twice a year). [61] On the basis of the table which has earlier been reproduced, the numbers on ordinary activity days will be much more modest. [62] On the date of the regional events, when the Club itself expects that there might be up to 150 motorcycles involved, applying the same assumption (against the Club's interests) that would result in some 450 persons present at the facility for such activities, a number lower than that which might be derived from consideration of the Young Motorcycle Club's program of events. [63] Taking the Applicants' case at its highest (on the basis of Mr Toparis' affidavit and noting that, although Mr Larkin objected to Mr Toparis' affidavit, Mr Toparis was not required for cross-examination), the attendance of 600 people at the largest event (clearly a highly improbable position on any regular basis - given the expectation of 40 motorcycles only at the first category of events set out in the table), the expanded category of events that in the second and later years' operating condition of the development consent …."
5. The respondents' submission that this level of usage would not involve large-scale sporting or recreation activities was largely based on the proposition that other social activities, including school events, could involve more people. They also noted that the car parking area was limited to 40 cars and 22 trailers, and that there was no grandstand or seating to be provided. Those are all material considerations; however, the fact that some similar facilities could cater for larger numbers of people is not a reason for finding that the proposed development will not involve activities attended by large numbers of people. Nor did the evidence suggest that the limits on parking areas confined the number of persons likely to attend.
6. Regard should be had in identifying the scale or standard to be applied to the other inclusions in the definition, but also to geographical considerations. Expectations as to the amenity of surrounding land in a "transition" zone is to be judged according to standards relevant to the environmental sensitivity of the surrounding lands and the amenity of people living or working on the outskirts of a regional city, and not by reference to similar kinds of development in Sydney. For example, the reference to "showgrounds" should be understood to include the Goulburn Showground, where activities may attract a large number of people, although probably a small proportion of the people attracted to the Sydney Easter Show. A similar approach may be taken to the size of crowds likely to attend meetings at the Goulburn racecourse. Further, given that the amenity of the surrounding areas is likely to be affected by the number of persons attending an activity, whether as participants, spectators or organisers, there is no justification for distinguishing between spectators and others, although it may be accepted that spectators must be part of the calculation.
7. Bearing these considerations in mind, the figures for attendances set out above qualify as a large number of people. No doubt this finding must involve a hint of irony for the Club; the greater the number of people involved in its activities, the greater the need for a facility such as that proposed, but the greater the difficulty in satisfying the Court that the proposal is not a prohibited use under the applicable zoning.
8. Thirdly, it seems that the activities involving large numbers of people must occur "regularly or periodically". The schedule of conditions of consent, following the February 2016 amendment application, included the following: "2. This consent is for the use of the riding and racing of motorbikes within the subject property and in the areas marked on the approved plans described above. As per the application information, the consent is limited to the following: ● The facility shall be limited to a maximum use of 36 days within the first calendar year (30 full day equivalents) where motorbike activities are undertaken and in a manner consistent with the Noise Reports of the Acoustics and Vibration Unit, of the University of New South Wales. ● For each subsequent year to the first calendar year, the use of the facility shall be limited to a maximum of 108 days (90 full day equivalents) subject to compliance with condition 6 and the applicant demonstrating that the use of the facility complies with the noise levels contained in condition 4. ● Use shall be limited to local and regional events. Larger events including National competitions are not part of this consent. Operational times shall be limited to: ● Thursday to Sunday 9.00am to 5.00pm, plus ● One additional weekday to a maximum of 8 times per year 9.00am to 5.00pm, plus ● A maximum of 8 'twilight' events per year between 5.00pm and 8.30pm weekdays."
9. There is little doubt that the third element is satisfied.

Conclusions

1. These features of the proposed development are sufficient to warrant characterisation of the proposed use as a large-scale sporting or recreational activity attended by large numbers of people, which occurs regularly or periodically. Although those terms are relative, and may involve different assessments in different contexts, the objective of the zone is to provide a transition between rural and other land uses. Amongst the prohibited uses are business premises, camping grounds, caravan parks, dual occupancies, retail premises, storage premises, transport depots and vehicle body repair workshops. These uses indicate the level of intensity and environmental insensitivity which is not tolerated in the zone. The concepts of "large-scale" and "large numbers of people" involved in sporting activities must be assessed according to that standard.
2. The question in the present case is not whether the Council was unreasonable in failing to find that this was a prohibited use; the question is whether the Court is satisfied that the proposed development involves a prohibited use. The Court may accept that Council addressed and formed a contrary view to that adopted here, although there was no evidence of the consideration of that issue, or the formation of the opinion. Accordingly, that opinion can be given little weight. The factors set out above militate in favour of the conclusion that the use is prohibited. Accordingly, the appeal should be allowed and the declaration sought by the appellants should be made.

Costs

1. The appellants, having succeeded in overturning the decision of the trial judge and in establishing the invalidity of the consent, should have their costs in this Court. Those costs should be payable by the proponents and the Council.
2. The trial judge reserved the question of costs before him, but given the result of the appeal, it is appropriate that this Court dispose of those costs, if permissible. The appeal was brought from a judgment in the Class 4 jurisdiction of the Land and Environment Court, pursuant to s 58 of the Land and Environment Court Act 1979 (NSW). Such an appeal is not limited to a question of law and the Court may make such orders as seem fit in relation to the appeal. [40] The appellants sought an order that the respondents pay their costs in the Land and Environment Court, to which no opposition was indicated by the respondents, with one qualification, in either written or oral submissions. The qualification relates to the position of the Council. In circumstances where the proponents were represented by counsel, the Court queried the role of the respondent Council in actively seeking to uphold its own decision. As noted by Gaudron and Gummow JJ in Oshlack v Richmond River Council: [41] "In a significant number of such litigious disputes, it will, in accordance with the reasoning in R v Australian Broadcasting Tribunal; Ex parte Hardiman, [42] be entirely appropriate for, if not incumbent upon, the local government body not to assume the position of a protagonist and to avoid incurring substantial costs. The position of protagonist will be filled by the party against which injunctive relief is sought and which is the real contradictor in respect of the application for declaratory relief."
3. That issue need not be pursued, but in the course of addressing its position, the Council, while accepting that it would be jointly and severally liable for any costs if the appeal succeeded, also submitted that, with respect to the costs in the Land and Environment Court, its liability should not exceed 75% of the applicants' costs in that Court. The Council explained that it had not participated in a contested issue in relation to an extension of time sought by the applicants; it submitted that the issue was clearly severable and occupied a "not insignificant amount of time and cost". That submission may be accepted and the liability of the Council in the Court below should be limited accordingly.

Orders

1. In their notice of appeal, the appellants sought both a declaration as to the invalidity of the consent and an order restraining the Club from carrying out the development the subject of the consent. There was no evidence suggesting that any such steps had been taken, or would be taken given the absence of a consent to the development application. The declaration should be made, but there is no present call for injunctive relief. (If the situation changes, it is a matter which can be dealt with in the Land and Environment Court.)
2. The Court should make the following orders: 1. Allow the appeal and set aside the judgment and orders made in the Land and Environment Court on 6 July 2016. 2. Declare that the consent granted by the Council to development application DA/0307/1415 on land comprising Lot 6, DP 243887 and Lot 2, DP 636858, at Sydney Road, Boxers Creek, Goulburn is invalid. 3. Order that the respondents pay the applicants' costs in the Land and Environment Court, the Council's liability being limited to 75% thereof. 4. Order that the respondents pay the appellants' costs of the appeal. Annexure A

Endnotes

1. The chart included a fourteenth document, namely the Club's request for a review of Condition 2.
2. LEP 2009 cl 2.3(1)(c); Land Use Table Zone RU6 cl 4. See the Environmental Planning and Assessment Act 1979 (EPA Act), ss 76B, 79C(1)(a)(i).
3. LEP 2009 Dictionary.
4. Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; 167 LGERA 395 (Ko-veda) at [99] (Tobias JA, Young JA and Bergin CJ in Eq agreeing).
5. Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [41] (Hodgson JA, Tobias and Basten JJA agreeing), citing House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23] (Mason P, Stein and Giles JJA agreeing).
6. (1971) 67 LGRA 427 at 433-434. This passage has frequently been cited with approval: see, for example, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 at [43] (Meagher JA), [156] (Ward JA); Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 at [36] (Basten JA, Spigelman CJ and McColl JA agreeing). The latter decision was reversed on appeal but not on this point: see Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; 239 ALR 641 at [17] per curiam.
7. [2013] NSWCA 103; 195 LGERA 182.
8. Allandale at [43]-[45].
9. Allandale at [46].
10. (1970) 19 LGRA 321 at 323-324.
11. Royal Ryde Homes at 324.
12. Cf Ko-veda at [100], where this Court construed a condition of consent relating to landscape works within the "matrix" of provisions of an Environmental Impact Statement.
13. Cheetham v Goulburn Motorcycle Club Inc [2016] NSWLEC 80 (Moore J) ("Cheetham").
14. Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [9]-[11].
15. Cheetham at [60] and [62].
16. Cheetham at [63].
17. Cheetham at [65].
18. Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [92]-[93] (Spigelman CJ).
19. See Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [41]-[44] (McColl JA, Beazley JA agreeing).
20. (1964) 109 CLR 395 at 401-402.
21. P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources - The Laws of Australia (2013, Thomson Reuters) at [25.1.1070], referring to Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 329-330 (Toohey, McHugh and Gummow JJ).
22. Cranbrook School at [88].
23. (1989) 16 NSWLR 50 (Kirby P, Samuels and Priestley JJA).
24. (1991) 23 NSWLR 710 (Gleeson CJ, Kirby P and Samuels JA).
25. Woollahra Municipal Council at 714-715.
26. (2000) 199 CLR 135; [2000] HCA 5 at [48]-[49].
27. (1981) 153 CLR 376 at 390.
28. (1985) 159 CLR 178 at 184.
29. (2002) 55 NSWLR 446; [2002] NSWCA 301.
30. Hillpalm at [13].
31. Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 at [50] and [51]-[55] (McHugh ACJ, Hayne and Heydon JJ).
32. Hillpalm (High Court) at [49]. See also Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293 (Stephen J, albeit in dissent as to the result); Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4].
33. [2013] NSWCA 103; (2013) 195 LGERA 182 at [24]-[25] (Macfarlan JA), [42]-[48] (Meagher JA) and [155]-[163] (Ward JA).
34. [2006] NSWCA 273; 148 LGERA 439 (Spigelman CJ, McColl JA agreeing).
35. Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; 82 ALJR 74 at [17].
36. (2004) 61 NSWLR 707; [2004] NSWCA 422 at [107]-[108] (with the agreement of Mason P, Handley JA, Sheller JA and Cripps AJA).
37. Statement of Environmental Effects, pp 34-35.
38. Affidavit, Richard Anastasios Toparis, 25 May 2016, par 27.
39. Cheetham at [60].
40. Land and Environment Court Act, s 58(1) and (2)(d).
41. (1998) 193 CLR 72; [1998] HCA 11 at [46].
42. (1980) 144 CLR 13 at 35-36.

Amendments 27 April 2017 - Coversheet - date of decision should read 27 April 2017 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. Decision last updated: 27 April 2017