Cheetham v Goulburn Motorcycle Club Incorporated

[2016] NSWLEC 80

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cheetham and Anor v Goulburn Motorcycle Club Incorporated and Ors [2016] NSWLEC 80
Hearing dates:	22 and 23 June 2016
Date of orders:	06 July 2016
Decision date:	06 July 2016
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders at [87]
Catchwords:	JUDICIAL REVIEW – challenge to development consent for motorcycle racing facility – characterisation of proposed facility – council characterised the proposal as recreation facility (outdoor) – contention that the proposal should be characterised as recreation facility (major) – development for a recreation facility (major) prohibited in the zone where site located – interpretation of definition of recreation facility (major) – proposal correctly characterised by the council – development permissible – summons dismissed PROCEDURE – issue of whether applicants needed extension of time to commence proceedings – not necessary to determine if extension required given failure on sole substantive issue in the proceedings
Legislation Cited:	Environmental Planning and Assessment Act 1979 Goulburn Mulwaree Local Environmental Plan 2009 Goulburn Mulwaree s 94 Development Contributions Plan 2009
Cases Cited:	Gardner v R [2003] NSWCCA 199 Levenstrath Community Association Inc v Tomies Timber & Anor [2000] NSWLEC 95; 108 LGERA 176 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) HCA 28; 194 CLR 355 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223
Category:	Principal judgment
Parties:	Nancy Cheetham (First Applicant) Jan Cheetham (Second Applicant) Goulburn Motorcycle Club (First Respondent) Spacelab Studios Pty Ltd (Second Respondent) Goulburn Mulwaree Council (Third Respondent)
Representation:	Counsel: Mr P Larkin SC/Ms N Hammond, barrister (First and Second Applicants) Mr R Gration, barrister (First and Second Respondents) Mr J Lazarus, barrister (Third Respondent)   Solicitors: Woolf Associates (First and Second Applicants) Jacqueline Gore & Associates Pty Ltd (First and Second Respondents) Lindsay Taylor Lawyers (Third Respondent)
File Number(s):	155402 of 2016 (formerly 40146 of 2016)
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The substantive proceedings

Do the Applicants need an extension of time to commence the proceedings?

The relevant provisions of the LEP

The evidence

The s 82A review

The relevant conditions

The Club’s review application

The s 82A review assessment report

The outcome of the s 82A review

The expanded operating approval after Year 1

What is approved to be constructed at the facility?

How is the proposed facility to be used?

Undertaking a process of characterisation

Introduction

Definition elements requiring analysis

Large-scale sporting or recreation activities

Large numbers of people

Includes

Motor-racing track

Wednesbury unreasonableness?

Conclusion

Orders

Judgment

Introduction

1. On 18 August 2015, Goulburn Mulwaree Council (the Council) granted the Goulburn Motorcycle Club (the Club) development consent for what the Council regarded as being a development for the purposes of a “recreation facility (outdoor)”. The proposed development is to be located to the north-east of Goulburn near the more northern of the two motorway exits to Goulburn from the Sydney-Melbourne Motorway.

2. On 17 December 2015, the Club made an application to the Council pursuant to s 82A of the Environmental Planning and Assessment Act 1979 (the EP&A Act) to review the development consent. The application for review sought, relevant to these proceedings, changes to condition 2 of the conditions of development consent attached to the Council's August 2015 approval and set out in the notice of determination issued as a consequence of that approval. The determination of the s 82A review was made by resolution of the Council on 2 February 2016.

3. The Council, as a result of its review, amended condition 2. It will be necessary to discuss, in more detail, the original and amended versions of condition 2 later in this decision.

The substantive proceedings

4. The Cheethams (the Applicants) have brought these proceedings seeking to have the development consent set aside on the basis that, properly characterised, the development for which application was made should be regarded as a “recreation facility (major)”. If correctly so categorised, the development is prohibited. The various relevant elements of the Goulburn Mulwaree Local Environmental Plan 2009 (the LEP) engaged for my consideration of this are set out later.

5. The Club is the First Respondent and Spacelab Studios Pty Ltd (Spacelab) (the planning consultancy which undertook the necessary planning and general coordination tasks for the Club for the original development application and the nominal beneficiary of the development consent) is the Second Respondent in these proceedings. The Council is the Third Respondent.

Do the Applicants need an extension of time to commence the proceedings?

6. The date upon which these proceedings were commenced is clearly within the relevant statutory time period set by s 101 of the EP&A Act to challenge the s 82A determination. This is as a consequence of the Council's determination of the s 82A review being 2 February and the commencement of these proceedings, with the summons being filed on 2 March 2016. It is self-evident that the period between the two dates comfortably satisfies the three-month limitation period set by s 101 of the EP&A Act.

7. The First and Third Respondents take the point that, although the Applicants are in time to challenge the s 82A review determination, they are out of time to challenge the original August 2015 determination. As a consequence, Mr Gration, barrister for the Club and Spacelab, submits that, if the outcome of the s 82A review challenge is successful, the effect will merely be to reinstate the August 2015 consent. Mr Larkin SC (with him, Ms Hammond, barrister), for the Applicants, relies on the provisions of s 82D of the EP&A Act as providing a complete answer.

8. On this basis, Mr Larkin submitted that the outcome of the review process is a new determination, one which subsumes the entirety of the original determination and has a new effective operative and conclusionary date, as can be seen from the face of the s 82A review determination.

9. However, against the eventuality that I might accept the submission advanced by Mr Gration, Mr Larkin also moved on a motion that the Applicants be granted an extension of time to cure any such defect and to make it clear that such extension would permit challenge to the August 2015 development consent. The Notice of Motion was supported by an affidavit of the Applicants’ solicitor, Mr Woolf, setting out a step-by-step explanation concerning two previous proceedings involving the Club and the reasons why those proceedings (both of which could be regarded, broadly, as being for the same purposes as the present proceedings - although the first of them related to an earlier development approval that was surrendered) had not proceeded to determination.

10. It seems to me that these various procedural skirmishes are, in fact, irrelevant given the outcome I have determined on the substantive point engaged in these proceedings. I have reached that conclusion because I have found that the approved development could be characterised, properly, as a “recreation facility (outdoor)”, with there being no error on the Council’s part in determining the development application on that basis. The result is that the appropriate substantive order must be that the summons is dismissed.

11. I do, however, consider it appropriate to express, in short form, my conclusions concerning the application for an extension of time had this been necessary to resolve. I set these conclusions out against the eventuality that I might be found to be incorrect in my conclusion on the Council’s characterisation of the proposed development.

12. I am satisfied that the matters set out in Mr Woolf's affidavit (without the necessity for repeating the detail contained in it) constitute an understandable, valid and acceptable reason why an extension of time would have been granted to the Applicants for commencement of these proceedings were this to be necessary.

13. Although I indicated to the parties, during the course of the hearing, I considered it appropriate to deal with the procedural issues, in a bundled-up fashion, prior to embarking on consideration of the merits of the challenge, given the conclusion I have reached on the substantive point, it is not necessary to do so at any length.

The relevant provisions of the LEP

14. The site of the proposed development is zoned RU6 Transition in the Land Use Table of the LEP. The relevant element of the Land Use Table for this zone, as is conventional for plans based on the Standard Instrument template, sets out the objectives for the zone; development that is permitted without development consent; development that is permitted with development consent; and development that is prohibited. Set out below are the relevant provisions of the LEP:

Zone RU6   Transition

1   Objectives of zone

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   Permitted without consent

Environmental facilities; Environmental protection works; Extensive agriculture; Home occupations; Roads

3   Permitted with consent

Backpackers’ accommodation; Bed and breakfast accommodation; Cellar door premises; Dwelling houses; Farm stay accommodation; Home industries; Kiosks; Landscaping material supplies; Markets; Plant nurseries; Roadside stalls; Rural supplies; Timber yards; Any other development not specified in item 2 or 4

4   Prohibited

Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Attached dwellings; Boat building and repair facilities; Business premises; Camping grounds; Caravan parks; Crematoria; Dual occupancies; Electricity generating works; Exhibition homes; Exhibition villages; Group homes; Heavy industrial storage establishments; Heavy industries; Helipads; Highway service centres; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Intensive livestock agriculture; Intensive plant agriculture; Livestock processing industries; Marinas; Mooring pens; Mortuaries; Multi dwelling housing; Passenger transport facilities; Recreation facilities (major); Registered clubs; Residential flat buildings; Restricted premises; Retail premises; Rural workers’ dwellings; Sawmill or log processing works; Semi-detached dwellings; Seniors housing; Service stations; Sex services premises; Shop top housing; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste or resource management facilities; Water recreation structures; Wharf or boating facilities; Wholesale supplies.

15. It is clear, from the fourth element listing it, that development for the purposes of a “recreation facility (major)” is expressly prohibited.

16. Development for a “recreation facility (outdoor)” is not dealt with by this fourth element of the Land Use Table for the RU6 zone. It is also not expressly listed in (2) or (3) as permissible. However, the list of development permissible with consent in (3) concludes with the words “Any other development not specified in item 2 or 4”.

17. As a consequence, development appropriately classified as “recreation facility (outdoor)” is classified as being an innominate permitted use within the zone as it has not been expressly prohibited and, therefore, falls within the scope of the expansive term at the conclusion of (3).

18. There are two definitions, set out in the dictionary to the LEP, that are relevant in these proceedings. They are the definition of “recreation facility (major)” and “recreation facility (outdoor)”. Those definitions are 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.

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).

The evidence

19. In addition to reading the affidavit of Mr Woolf on the Notice of Motion, Mr Larkin tendered, in the substantive proceedings, the Court Book and two folders of documents relevant to the development subject to challenge. There was no objection by Mr Gration or by Mr Lazarus, counsel for the Council, to any of this material.

20. Mr Gration read the affidavit of Mr Richard Toparis, the President of the Club. I permitted this affidavit to be read over the objections pressed by Mr Larkin. Although there were elements in the affidavit that were clearly irrelevant as, I explained at the time, a deal of the affidavit was expressly relevant or provided appropriate contextual relevance to understanding the remainder of the document. When I indicated to Mr Larkin that I proposed to permit this evidence on that basis, he did not require a detailed parsing and dissection of the contents of the affidavit but accepted that it would be dealt with in the fashion noted above.

21. Mr Gration also tendered an “LEP Practice Note” from the Department of Planning entitled “Preparing LEPs using the Standard Instrument definitions”. Although initially objected to by Mr Larkin, he subsequently did not press his objection. It is convenient, at this time, to note the terms of the portion of the document relied upon by Mr Gration. The relevant passage read:

Terms not defined in the dictionary

Many terms used in the Standard Instrument are not separately defined in the dictionary. In these cases, the ordinary meaning of the word is to be used, which can usually be ascertained by referring to the Macquarie Dictionary.

Some definitions also refer to land uses that are not specifically defined. For example, the definition of an “information and education facility” refers to “library”, “art gallery” and “museum”, which are not defined in the dictionary. These terms have their common meanings, and are included to clarify beyond doubt that these activities are a form of “information and education facility”.

22. As will be obvious from that which follows, it is not necessary to consider this document further.

23. Mr Gration also tendered an extract from the Macquarie Dictionary setting out the definition of “go-kart”. The relevance of this definition arises from the use of the expression “go-kart track” being included in in the LEP definition of “recreation facility (outdoor)” set out above.

The s 82A review

The relevant conditions

24. First, a little like the observation of Sherlock Holmes in the Hound of the Baskervilles noting that the dog did not bark in the night, it is appropriate to note, initially, what is expressly not included in the original conditions. It is to be observed that there is no expressly imposed participant limit, expressly imposed spectator limit or expressly imposed total attendance limit for the proposed development. There is also no expressly imposed limit on the number of motorcycles permitted to be ridden on any day at the proposed development.

25. However, two conditions in the initial determination of August 2015, and the equivalent conditions in the s 82A review determination, are relevant in understanding the actual limits on the proposed facility.

26. The first of them is condition 1. Condition 1, in substance, lists the various documents defining the scope of the proposed development. The list in condition 1 of the August 2015 consent is repeated in the s 82A review determination consent but, in the latter consent, with the addition of the letter dated 17 December 2015 that applied for the review. It is unnecessary to list the totality of the plans and documents set out in these conditions. It is, however, appropriate to set out the chapeau to the conditions (being in identical terms in each document). It reads:

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:

27. Also relevant is the provision (in the same terms in each condition) dealing with the potential for inconsistency between the various documents. This provision is in the following terms:

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.

28. The other condition that is relevant is condition 2 attaching to each determination. The version of condition 2 contained in the August 2015 development consent was in the following terms:

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) when 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 9.00am to 5.00pm, plus

≈   One additional weekday to a maximum of eight times per year 9.00am to 5.00pm, plus

≈   A maximum of 8 ‘twilight’ events per year between 5.00pm and 8.30pm weekdays.

∞   All activities on site shall be limited to:

≈   motorbikes which have been scrutinised and passed by the Motorcycling Australia noise standard requirements

≈   days when the adjacent Speedway is not operational.

The Club’s review application

29. The reason why the Club applied for the s 82A review was that it wished to seek certainty about the permitted scale of its future operations on the assumption that, during its first year, it would demonstrate compliance with the relevant noise control requirements contained in the conditions of the August 2015 consent. The Club did not wish to be left in a position where, as envisaged by the concluding words of the first element of the August 2015 condition 2, any future increase in the number of events able to be conducted by the Club required a further application to the Council and the necessity to renavigate the development assessment process.

The s 82A review assessment report

30. An assessment report was provided to the Council for its meeting on 2 February 2016, the meeting that determined the s 82A review application. The assessment report was prepared by the Council's Director Growth Strategy & Culture.

30. The application for review had been notified to all 54 parties who had made submissions to the original development application (of which 26 objected to the proposal). Ten submissions were received. The matters raised by these submissions, which were all objections, were summarised in a report to the Council. Four of the 10 objections are expressly noted as being wholly or partially based on the increased scope of the development. Copies of these objection submissions are in evidence.

31. The assessment report deals with the question of intensification of the development under the heading “Scope of Development”. This portion of the officer’s report is in the following terms:

A number of submissions raised concern the perceived increase in potential riding days at the site increased the scope of the development. The approved development is best defined under Goulburn Mulwaree Local Environmental Plan 2009 as a “recreation facility (outdoor)” and is permissible with consent in the RU6 Transition zone.

Should Council approve the proposed increase of riding days to 108 in a calendar year it is still considered that the development meets the definition of “recreation facility (outdoor)” as the number of participants and riders per event will not increase compared to the approved development. Council staff do not share the view made in some submissions that the development should be considered as a “recreation facility (major)” which is prohibited development in the RU6 zone.

The development proposes to only host local meets and interclub meets that will only include associated clubs from NSW and the ACT, and conditions to this effect were imposed on the development consent.

The outcome of the s 82A review

33. As a consequence of the s 82A review process, a revised condition 2 was inserted in the conditions attaching to the s 82A review determination. This revised condition is in the following terms:

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) when 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.

∞   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 eight times per year 9.00am to 5.00pm, plus

≈   A maximum of 8 ‘twilight’ events per year between 5.00pm and 8.30pm weekdays.

∞   All activities on site shall be limited to:

≈   motorbikes which have been scrutinised and passed by the Motorcycling Australia noise standard requirements

≈   days when the adjacent Speedway is not operational.

34. As can be observed, there are two differences between the two versions of condition 2.

35. In the second version (that which is in the currently operative determination and conditions), the words “unless otherwise approved by Council” at the end of the first paragraph in the original condition have been deleted.

36. The second amendment is the insertion in the current version of the new element setting an operational regime for the second and subsequent years of operation of the proposed facility, operational limits that are significantly higher than the operational limits in the first year. The effect of this second change is discussed immediately below.

The expanded operating approval after Year 1

37. The outcome of the alteration sought (and granted) was, as noted in the Officer’s Assessment Report on the s 82A review, to effect a tripling of the frequency with which the Club could conduct events at the proposed facility.

38. However, the approval to triple, from 30 full-day equivalents to 90 full-day equivalents, the number of permitted operating days for the facility did not have, on a proper construction of the relevant documents incorporated by effect of condition 1 of the s 82A review determination’s conditions of consent, a tripling of each of the permitted categories of activity able to be carried out at the facility during a calendar year.

39. This conclusion follows from a proper understanding of the table later set out showing the four categories of activity and the frequency with which they are intended to occur. As can later be seen, there is no numerical limit proposed for the first category, one described in the table as “Social Riding/Practice (Intra-Club)”. Each of the three subsequent categories does have a specific numerical limit. By virtue of condition 1, these limits on the number of occurrences of these three categories of event in any year are incorporated into the conditions and therefore constitute limits that bind the Club.

40. The consequence of this is that the only category of activities proposed at the facility which can have the benefit of the additional 60 full-day equivalents in any year must be those falling in the first category of the table.

What is approved to be constructed at the facility?

41. To understand the scope of the proposed facilities, it is necessary to consider the detail of the works that have been approved to be carried out by the Club following the Council's approval. In this context, it is to be noted that the nature of the works, although differing between the first (surrendered) development consent and the August 2015 development consent, were not sought to be altered by the s 82A review application. The approved works fall into a number of categories, these being:

• Bulk earthworks. The approved earthworks comprise, in the main, construction of the track around which the motorcycles are to race and the forming of a number of dams. However, they also necessarily include other elements such as preparation of the proposed parking area (to contain 40 vehicle parking spaces and 22 vehicle-and-trailer parking spaces), creation of the access track; site preparation for the proposed clubhouse and creation of the three identified spectator viewing areas and internal pedestrian pathways to service them;

• The installation of a waste water treatment system. This treatment system is described, in the relevant report which accompanied the development application that led to the August 2015 development consent (and is incorporated in the consent by condition 1) as being a system capable of treating an expected maximum potential daily wastewater load from all sources (toilets and kitchenette) of 3,000 litres; and

• The erection of a clubhouse. The clubhouse is to have a floor area of 100 square metres as shown on its floor plan. The floor plan also shows that there are to be four toilets, a small kitchenette and an outdoor barbecue area immediately adjacent to the northern facade of the structure.

42. The total estimated cost of these works was said, on the development application, to be $150,000. For the purposes of determining the contribution to be exacted from the Club pursuant to the provisions of the Goulburn Mulwaree s 94 Development Contributions Plan 2009, the Council has accepted that the value of the works as declared in the development application and adopted it for the purposes of calculating the contribution. By doing so, the Council has clearly accepted that this is an accurate reflection of the expected cost of the works.

How is the proposed facility to be used?

43. A letter from Spacelab to the Council dated 1 May 2015 is incorporated by express reference in both versions of condition 1. Included in this letter, under the heading “Details of Proposed Use”, there appears an introductory paragraph and then a table setting out a number of matters relevant to the consideration of the characterisation issue arising in these proceedings. The introductory paragraph is in the following terms:

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 motorcycles used.

44. Before setting out the terms of the table, it is appropriate to note that this letter from Spacelab is a reply to a letter from the Council dated 24 April 2015, seeking information concerning the use of the proposed facility. The request was, relevantly, in the following terms:

Further to the lodgement of the Development Application the following details are required by Council to enable further assessment of the proposal -

Planning

Clarification as to when racing shall take place at the site and full details of the proposal required. For each activity/event listed under Section 3.1 of the Statement of Environmental Effects please provide the following detail:

•   maximum number of spectators, patrons, and attendees;

•   maximum number of bikes to be used at any one time during an activity/event;

•   type of bikes to be used;

•   maximum number of races; and

•   the duration of each activity/event.

45. The response to this aspect of the request is set out in the table that appeared after the descriptive paragraph set out above. The table is in the following terms:

Activity	Frequency	Hours	Likely Event Duration	No of Races	Type of Bikes Used	Number of Bikes Used
Social Riding/Practice (Intra-Club)	Between 9.00 am and 5.00 pm Thursday to Sunday (on other days to a maximum of 8 per year)	8 hours	0	All classes	Approx 20-40b
Daytime Club Meets (Intra-Club)	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
Twilight Club Meets (Intra-Club)	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
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

46. The Council's letter of 24 April 2015 also sought responses from Spacelab to questions raised by Roads and Maritime Services (RMS) with respect to the proposed facility. The Council's letter of 24 April indicates that:

Council has received a response from the Roads and Maritime Services (RMS) and a copy is enclosed for your information. Council has responded in part to some of the issues raised by the RMS (a copy of the Council's e-mail response is enclosed for your information). Please respond accordingly to the first bullet-point stated by the RMS and provide any additional comments that may be necessary.

47. The first of the requests for further information from RMS was in the following terms:

RMS requires a description of the traffic impacts associated with the proposed development, specifically on general activity days. RMS requires confirmation the expected number of vehicles likely to access the site during a peak period on general activity days.

48. The relevant portion of the Spacelab letter of 1 May 2015 dealing with this under the heading “RMS Referral Comments” is in the following terms:

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.

49. Although the letter from RMS to the Council and Spacelab's response to the Council's request are in evidence, a copy of the Council's partial response to the RMS referral comments is not in evidence. Nothing would appear to turn on this.

50. The Spacelab letter continued:

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 intraclub or interclub activity or event at the proposed facility given the number of participants can vary widely, it can reasonably be expected that at any event (given the GMCC membership of 140) could reasonably attract a maximum of approximately 250 people at 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) will travel to the facility by car or utility/SUV vehicles with trailers to transport motorcycles 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 at a general weekend event day (which would probably occur between 8.00 am and 9.00 am) would likely result in approximately 30-40 vehicles arriving via Speedway Road (which has extremely low traffic volume) within that our - or one vehicle every 1.5-2 minutes.

51. The incorporation of the table (by effect of condition 1) means that there is an effective numerical limit on participants and the submission that the approval is so uncertain as to fail on this basis cannot be accepted. The Applicants’ reliance on Mison v Randwick Municipal Council (1991) 23 NSWLR 734 is misplaced.

Undertaking a process of characterisation

Introduction

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. It is also to be determined, when considering the terms of the language involved, in a fashion having regard to the necessity to strive to give effect to every word of a provision of an LEP (Roden v Bandora Holdings Pty Ltd (2015) NSWLEC 191 per Pain J, at [48], applying Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) HCA 28; 194 CLR 355).

Definition elements requiring analysis

54. I have earlier set out the terms of the definition of “recreation facility (major)” but repeat it here for convenience:

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.

55. For the purpose of analysing its potential application to the Club’s approved facility, it is appropriate to disaggregate the definition and consider what might be understood, at least potentially, from various elements of the definition. In the context of the submissions made by the advocates, it is appropriate that I consider each of the following:

• large-scale sporting or recreation activities;

• large numbers of people;

• includes; and

• motor-racing track.

56. I now turn to consider each of these terms.

Large-scale sporting or recreation activities

57. 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.

Large numbers of people

58. There is a limited range of material in evidence as to how many people might attend the various events proposed to be conducted by the Club at this facility.

59. In addition to the material able to be derived from the earlier table, I also have evidence in the affidavit of Mr Toparis that can assist in an understanding of this aspect of the proposal. In summary, from Mr Toparis’ affidavit, as I put to Mr Gration during the course the hearing, a calculation can be made based on the terms of [22] of his affidavit and the outline of the likely racing activities on a typical race day as imported by [41] which uses a program of the Young Motorcycle Club as a likely future template for this Club’s typical local race-day activities.

60. Given the conclusion that I have reached on how the Council engaged with this facet of the definition, it is unnecessary to set out extracts from the affidavit or to reproduce, as an appendix to this decision, a copy of the program of events at the Young Motorcycle Club. 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 means 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.

64. In this context, it is unnecessary to address Mr Lazarus' submission that the word “attended” should be interpreted so as to exclude participants and apply merely to spectators. Even on the overall aggregated basis of all persons present at the proposed facility, whether participants or spectators, the numbers attending on even the most intense operating day (being a day that would fit within the descriptor periodically in the LEP definition), the proposed facility is not brought within this element of the definition. This circumstance is quite unlike that arising in Levenstrath Community Association Inc v Tomies Timber & Anor [2000] NSWLEC 95; 108 LGERA 176 relied upon by Mr Larkin.

65. Although Mr Larkin submitted that there was no specified limit for either participants or spectators and that this rendered the approval uncertain in a Mison sense, I have earlier explained why this is not the case for participants. The scale of the proposed facilities is sufficiently constrained as to physically limit the number of spectators (as discussed in the Statement of Environmental Effects – incorporated by condition 1 – at page 30). It was certainly open to the Council to conclude that there was a functional maximum number of spectators limited by the proposed facilities.

Includes

66. The next aspect of the submission made by Mr Larkin is that, whatever the interpretation of the initial elements of the definition, the use of the inclusionary section at the conclusion of the definition, by incorporating the expression “motor-racing track”, means that this facility must be regarded as being deemed to be included (no matter what its scale of activities might be) if it were a motor-racing track.

67. Mr Larkin relied, amongst other authorities, on the decision of the Court of Criminal Appeal in Gardner v R [2003] NSWCCA 199 at [47] for the proposition that the inclusive element of the definition mandated the deeming of any development that fell within the scope of the types of development listed as being “recreation facilities (major)”.

68. Although Mr Larkin put this proposition on an absolute basis at the commencement of the proceedings, as later discussed, his closing submissions withdrew from this absolute proposition. That subsequent withdrawal from the absolute proposition initially advanced significantly changes the manner in which I need to approach the consideration of the Applicants’ case.

69. The essence of Mr Gration's submissions, in my understanding, can be encapsulated in two propositions. First, whether or not something could be regarded as a “motor-racing track” was a question of fact and degree and that the absolute position initially adopted by Mr Larkin was inappropriate. In this context, he pointed to the fact that the range of activities permitted within the zone as a consequence of the definition of “recreation facility (outdoor)” included go-kart tracks (clearly, he submitted, a form of motor-racing track) made this clear.

70. Second, the proper consideration of the (five) identified types of locations mandated to be regarded as included in the definition of “recreation facility (major)” made it clear that they were facilities that would be regarded as being expected to fit within the various elements contained in the general portion of the definition. Mr Gration submitted that, if one were to examine the nature of the other facilities within this inclusionary category (showgrounds, theme parks, racecourses) it was clear that they would broadly satisfy the elements of the general description within the definition of “recreation facility (major)”.

71. Mr Gration used the inclusion of the term “go-kart track” in the definition “recreation facility (outdoor)” to submit that, if viewed in the fashion proposed by Mr Larkin, a go-kart track was a motor-racing track and would need to be determined to fit within the definition of “recreation facility (major)”. He also submitted that two young persons racing model motor vehicles around some small or domestic scale circuit would, on Mr Larkin's initial interpretation, also necessarily be included within that definition. This, as I understood him, demonstrated the fallacy of the approach taken by the Applicants.

72. In his closing submissions, Mr Larkin stepped back from the absolute position that he had initially brought and conceded, as I understood his final position, that there were questions of fact and degree involved in this assessment as necessitated by the requirement to exclude very small-scale examples such as that postulated by Mr Gration.

73. Mr Lazarus, who appeared on behalf of the Council on the limited basis of dealing with matters of statutory interpretation, supported the submissions made by Mr Gration. He also made separate substantive submissions that acted to complement the position taken by Mr Gration, although it is not necessary to address them in detail given Mr Larkin’s resiling from his initial absolutist position on how the inclusionary aspect of the definition should be considered.

Motor-racing track

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 and 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.

Wednesbury unreasonableness?

78. Although no “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223) ground was advanced for the Applicants, it seemed to me that, after Mr Larkin’s concession, this was the only possible basis left for the Applicants to challenge the Council’s August 2015 decision.

79. As a consequence, it seems to me, although never articulated in this fashion during the course of the proceedings as it only arose, potentially, in the context of Mr Larkin stepping back, in his closing submissions, from the absolutist position he took in his initial submissions, to dispose of such potentiality, it is appropriate to examine the Council's decision on this basis.

80. Although the matter was non-argued on that basis, it is sufficient for me to conclude, for the reasons earlier outlined:

1. First, it was open to the Council on the facts to conclude that the nature of the facilities approved to be developed at the site by the Club did not satisfy the necessary criteria in the first portion of the definition of “recreation facility (major)” so as to be categorised as such; and

2. Second, as the numbers contained in the table earlier reproduced are incorporated in condition 1 of the conditions of development consent, the extent of the motorcycle racing activities permitted to be undertaken on the site are defined. It was also open to the Council, on a proper consideration of these facts, as a matter of degree, to conclude that those numbers did not warrant the proposed facility being designated a “motor-racing track” for the purposes of the inclusionary element of the definition of “recreation facility (major)”.

81. In this context, as earlier observed, the officer’s report to the Council meeting that resolved to approve the Club’s proposed facility on the basis that it was properly to be regarded as a “recreation facility (outdoor)” dealt with (and rejected) aspects of the objection submissions that had proposed that the facility should be classified as a “recreation facility (major)”.

82. This analysis, although of short compass, demonstrates that, in the making of its factual merit assessment, the Council officer (and by adoption of the report, the Council) considered and rejected the proposition now advanced by Mr Larkin on behalf the Applicants. On the basis of the factual material earlier set out, it could not be said that such a conclusion was not open to the Council.

Conclusion

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 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.

86. As the question of costs was not the subject of full submissions, in the eventuality that the outcome set out above was to be reached, the appropriate position, as I indicated to the parties would be the case, is that costs are to be reserved.

Orders

87. It therefore follows that the orders of the Court are:

1. The amended summons is dismissed;

2. The exhibits are returned; and

3. Costs are reserved.

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Decision last updated: 06 July 2016