Cheetham v Goulburn Motorcycle Club Inc

1. [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. [2]

   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. [3]

   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:

3. [4]

   General Condition 1 stated that:

4. [5]

   General Condition 2 provided as follows:

5. [6]

   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:

6. [7]

   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.

7. [8]

   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.

8. [9]

   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.

9. [10]

   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:

10. [11]

    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:

Reasoning

1. [12]

   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]

2. [13]

   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:

3. [14]

   The developments that are prohibited in Zone RU6 include “Recreation facilities (major)”. LEP 2009 defines “recreation facility (major)” to mean: [3]

4. [15]

   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.

5. [16]

   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.

6. [17]

   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.

7. [18]

   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]

8. [19]

   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]

9. [20]

   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]

10. [21]

    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]

11. [22]

    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.

12. [23]

    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]

13. [24]

    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”.

14. [25]

    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.

15. [26]

    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.

16. [27]

    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.

17. [28]

    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.

18. [29]

    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.

19. [30]

    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.

20. [31]

    For these reasons, the Consent does not permit the Land to be developed for the prohibited use as “recreation facility (major)”.

Orders

1. [32]

   The appeal should be dismissed. The appellants should pay the costs of the first and second respondents (the Club and Spacelab).

2. [33]

   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. [34]

   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. [35]

   The definition of “recreation facility (major)” was in the following terms:

2. [36]

   Another defined use which was not prohibited and was therefore said to be permitted with consent was the following:

3. [37]

   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. [38]

   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. [39]

   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:

3. [40]

   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:

4. [41]

   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. [42]

   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:

6. [43]

   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. [44]

   Consistently, that erroneous approach is confirmed by the conclusions reached by the trial judge in the following passages:

8. [45]

   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. [46]

   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. [47]

   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. [48]

   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]

4. [49]

   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. [50]

   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. [51]

   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. [52]

   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. [53]

   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. [54]

   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. [55]

    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]

11. [56]

    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. [57]

   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. [58]

   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. [59]

   In Hillpalm Pty Ltd v Heaven’s Door Pty Ltd, [29] Meagher JA stated: [30]

4. [60]

   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]

5. [61]

   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. [62]

   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. [63]

   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. [64]

   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. [65]

   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. [66]

   The proposal satisfied the first element.

3. [67]

   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:

4. [68]

   Further, the trial judge, in a passage not challenged on appeal, stated: [39]

5. [69]

   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. [70]

   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. [71]

   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. [72]

   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:

9. [73]

   There is little doubt that the third element is satisfied.

Conclusions

1. [74]

   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. [75]

   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. [76]

   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. [77]

   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]

3. [78]

   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. [79]

   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. [80]

   The Court should make the following orders:

   1. (1)

      Allow the appeal and set aside the judgment and orders made in the Land and Environment Court on 6 July 2016.

   2. (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. (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. (4)

      Order that the respondents pay the appellants’ costs of the appeal.