Cheetham v Goulburn Motorcycle Club Inc

The New South Wales Court of Appeal considered an appeal concerning the validity of development consent granted by the Goulburn Mulwaree Council for a "motorcycle facility". The appellants, Cheetham and others, challenged the consent, arguing that the proposed development was prohibited under the Goulburn Mulwaree Local Environmental Plan 2009 (the LEP). The respondents were the Goulburn Motorcycle Club Inc and Spacelab.

The central legal issue before the Court was whether the development consent, as granted, was for a prohibited use under the LEP. Specifically, the Court had to determine if the "motorcycle facility" constituted a "recreation facility (major)", which was a prohibited use, or if it fell within a permissible category. A further issue involved the extent to which documents referenced within the conditions of the development consent could be used to construe the nature of the consent itself.

The Court analysed the definition of "recreation facility (major)" in the LEP, which included a definition of "recreation facility". It considered the distinction between "means" and "includes" in statutory interpretation, noting that a definition introduced by "means" is exhaustive, while one introduced by "includes" is not. The Court found that the consent was not for a "recreation facility (major)" and that the characterisation of the proposal was a jurisdictional fact to be determined by the Court. The Court also held that it was permissible to refer to documents incorporated by reference into the conditions of consent to understand the scope of the consent.

The appeal was dismissed, and the appellants were ordered to pay the costs of the Goulburn Motorcycle Club Inc and Spacelab.