Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83

Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83

By majority, the Court held that the development consent, properly construed including the conditions and incorporated documents, did not permit the use of the land for a 'recreation facility (major)', and thus was not for a prohibited use under the LEP. The number of attendees, limitations on events, and lack of facilities for large crowds indicated the facility was not of the scale captured by the prohibited definition. Accordingly, the appeal was dismissed.

Parties
First Appellant: Nancy Leigh Cheetham; Second Appellant: Jan Scholberg Cheetham; First Respondent: Goulburn Motorcycle Club Inc; Second Respondent: Spacelab Studio Pty Ltd; Third Respondent: Goulburn Mulwaree Council
Jurisdiction
Australia
Judgment Date
27 April 2017
Procedural Posture
Appeal / Determination by Court of Appeal From Judgment of the Land and Environment Court
Outcome
Appeal dismissed
Legal Topics
Development Consent, Prohibited Uses, Statutory Definitions, Judicial Review
Planning Law Administrative Law Statutory Interpretation Development Consent Prohibited Uses Statutory Definitions Judicial Review

Case Brief

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Parties

Nancy Leigh Cheetham

First Appellant

Jan Scholberg Cheetham

Second Appellant

Goulburn Motorcycle Club Inc

First Respondent

Spacelab Studio Pty Ltd

Second Respondent

Goulburn Mulwaree Council

Third Respondent

Procedural Posture

Appeal / Determination by Court of Appeal From Judgment of the Land and Environment Court

Legal Issues

  1. 1 Whether proposed motorcycle facility was prohibited under the Goulburn Mulwaree Local Environmental Plan 2009 as a 'recreation facility (major)'
  2. 2 How to construe the development consent and incorporated documents
  3. 3 Characterisation of the planning proposal as a jurisdictional fact

Ratio Decidendi

By majority, the Court held that the development consent, properly construed including the conditions and incorporated documents, did not permit the use of the land for a 'recreation facility (major)', and thus was not for a prohibited use under the LEP. The number of attendees, limitations on events, and lack of facilities for large crowds indicated the facility was not of the scale captured by the prohibited definition. Accordingly, the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.
  • Appellants to pay the costs of the first and second respondents (the Club and Spacelab).