Posted on June 13, 2017 by Sue Puckeridge
What constitutes a ‘recreation facility (major)’?
A recent decision of the New South Wales Court of Appeal (‘Court‘) in Cheetham v Goulburn Motorcycle Club Inc  NSWCA 83 has considered for the first time the meaning of the term ‘recreation facility (major)’, a definition generally used in local environmental plans (‘LEPs‘) based upon the Standard Instrument.
Goulburn Mulwaree Council (‘Council‘) granted development consent for the construction of a motorcycle facility (‘Consent‘) to be used by the Goulburn Motorcycle Club (‘Motorcycle Club‘) for motorcross and dirt track motorbike racing on land in the Goulburn area (‘Development‘).
Was the Development permissible?
The key issue in the appeal was whether the Development was permissible on land zoned ‘RU6 Transition’ under the Goulburn Mulwaree LEP 2009 (‘GLEP‘). GLEP prohibits numerous uses within this zone including ‘recreation facilities (major)’. However a ‘recreation facility (outdoor)’ is an innominate permissible use.
GLEP defines a recreation facility major as:
‘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.’
Moore J in the Land and Environment Court had found the development was permissible.
Neither the Motorcycle Club or Council sought to uphold the reasoning in the Land and Environment Court but they nevertheless contended that the decision should not be overturned.
Court of Appeal Decision
In dismissing the appeal, the Court of Appeal held that the five facilities specified in the definition of ‘recreation facility (major)’ under the GLEP were intended to be illustrative and not exhaustive. Therefore the use of the land for a motor racing track was not a prohibited use unless it was also to be used for large-scale sporting or recreation activities attended by large numbers of people (at ).
However, the judges differed as to whether, on the facts, the facility was large-scale to be attended by large numbers of people.
The majority (McColl and Sackville JA) held that the definition of ‘recreation facility (major)’ is not satisfied because particular numbers of people are likely to attend the facility. The definition requires attendees to include large numbers of people, which include large numbers of members of the public (as distinct from members of a club), who are required, at least on some occasion to pay for admission to the events (at ).
The Motorcycle Club and the Council argued that documents which were incorporated into the Consent limited the number of bikes to be used, the likely number of attendees and demonstrated that the use would be principally for the riding of motorbikes by members of the Motorcycle Club. Having regard to the principles of construction that apply to development consents, the majority were not satisfied, that these documents had been incorporated into the Consent because the Consent did not carefully specify which elements of the documents formed part of conditions.
Nevertheless, they held that the Development was not a ‘recreation facility (major)’ because at least one condition and the site plan and other plans, which did form part of the consent, identified the scale of activities permitted by the Consent, and strongly suggested the Consent did not authorise motorcycle activities that will attract members of the public in large numbers (- ).
Basten JA (dissenting) held that:
- The use of land for a ‘recreation facility (major)’ was specifically prohibited in the GLEP zoning table in the transition zone. Other uses which were prohibited within this zone indicate a level of intensity and environmental insensitivity which is not acceptable within the zone. ‘The concept of “large-scale” and “large numbers of people involved in sporting activities must be assessed according to that standard.’ (at ).
- The Development was a ‘recreation facility (major)’ because:
- applying the definition to the evidence, the assessment of ‘large-scale’ must be undertaken with an ‘eye to the likely effects on surrounding land’ (at ) having regard to the size of the track, the number of riders (40) and the noise impact, the development met this part of the definition of ‘recreation facility (major)’.
- the proposed number of attendees was large for the purposes of the definition of ‘recreation facility (major)’, because the scale and standard to be applied to the inclusions within the definition should also have regard to geographical considerations. Expectations as to the amenity of surrounding land in a ‘transition’ zone should 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 not by reference to similar kinds of development in Sydney.’ (at ).
- there was little doubt that the activities proposed would occur periodically.
The majority’s reasoning enables the definition to be applied consistently across all zones and does not require an analysis of the particular land and zone within which the use is proposed. It is clear, however, that whether or not the definition is satisfied will be heavily dependent upon not only on the size of the development but also the number of members of the public who may attend the development.
Read the Court’s full judgment here: Cheetham v Goulburn Motorcycle Club Inc  NSWCA 83
Should you have any questions regarding the judgement please contact Sue Puckeridge, Partner on firstname.lastname@example.org or 8235 9702.