The recent case of El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 (“El Khouri”) concerned a challenge to the validity of a development consent granted by a Commissioner of the Land and Environment Court (“LEC”) in accordance with an agreement reached between parties to a Class 1 appeal under section 34(3) of the Land and Environment Court Act 1979 (“LEC Act”).
The NSW Court of Appeal held that compliance with clause 4.3 of the former Kogarah Local Environmental Plan 2012 (“LEP”) was not a “jurisdictional fact” amenable to judicial review.
Background
Gemaveld Pty Ltd (“Gemaveld”) applied to Georges River Council for development consent to demolish existing structures and construct a new multi-level dwelling house on a steeply sloping lot fronting the Georges River in Blakehurst.
The Council refused the development application, and Gemaveld subsequently commenced proceedings in Class 1 of the LEC’s jurisdiction against that refusal.
A contention that had been raised by the Council in the proceedings was the contravention of the height of buildings development standard in clause 4.3 of the LEP, which relevantly specified a maximum height of 9 metres for the subject site.
Amended plans were subsequently provided by Gemaveld purportedly demonstrating that the proposed dwelling house had a height of less than 9 metres, and following a conciliation conference the parties entered into an agreement pursuant to section 34(3) of the LEC Act seeking that the LEC grant development consent subject to conditions.
Section 34(3) of the LEC Act relevantly states as follows (with emphasis added):
“(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—
(a) must dispose of the proceedings in accordance with the decision, and
(b) must set out in writing the terms of the decision.”
In relation to the “functions” of the LEC, it is relevant to note that section 8.14 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) specifies that “the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.” (with emphasis added)
The functions and discretions of a consent authority with respect to the assessment and determination of a development application are set out in Part 4 of the EP&A Act. One of the most important provisions contained therein is section 4.15(1), which sets out mandatory matters for consideration in the determination of a development application including the provisions of any environmental planning instrument as are of relevance to the proposed development. The consideration of clause 4.3 of the LEP was accordingly a function of the consent authority conferred upon the LEC for the purposes of hearing and determining the appeal.
In addition to Gemaveld’s amended plans, the Commissioner had before him a “jurisdictional statement” prepared by the solicitors for the parties. The preparation of jurisdictional statements is now commonplace in Class 1 appeals, with the purpose being to assist Commissioners in identifying and satisfying themselves as to the various legislative requirements that affect the determination of an application before them. The jurisdictional statement in the present case relevantly confirmed the parties’ agreement that the proposed development complied with the height of buildings development standard in the LEP.
The Commissioner formed the view that the decision set out in the parties’ agreement was one that the Court could have made in the proper exercise of its functions and accordingly made orders in accordance with the agreement granting the development consent subject to conditions.
Commencement of Judicial Review Proceedings
The owners of the neighbouring properties to the north and south of the subject site commissioned a survey following the grant of the development consent, which relevantly that determined that a small portion of the proposed dwelling house did in fact exceed the maximum height of 9 metres.
The neighbours then commenced proceedings seeking judicial review of the Commissioner’s decision, with the following ground being the only one pressed at the hearing:
“The Court had no power to make the decision to grant consent to the DA because it was not a decision that the Court could have made in the proper exercise of its functions, within the meaning of s 34(3)… in that the height of the proposed development exceeded the relevant height control in the Kogarah [LEP] and there was no request to vary that standard as required by cl 4.6 of that LEP.”
The summons was initially referred to Justice White in the Supreme Court’s Equity Division to determine factually whether the proposed dwelling house exceeded the 9 metre height limit. His Honour determined that it did but that this was not evident from the plans and documentation before the Commissioner, which did not include the neighbours’ survey plan.
As there was no suggestion of fraud or negligence on the part of those persons who had prepared and assessed the development application, Justice Leeming (whom delivered the leading judgment in the Court of Appeal) accordingly framed the issue for the Court’s determination as follows: “whether a non-negligent error resulting in a development application which in fact breaches cl 4.3 of the Kogarah LEP is a jurisdictional fact entitling this Court, on different evidence, to set aside the decision of the Land and Environment Court.”
What is a jurisdictional fact?
A jurisdictional fact is a common basis for judicial review of administrative decisions and refers to a fact that is an essential precondition to the exercise of a statutory power, such as the power to grant a development consent, the existence of which can only be conclusively determined by a Court with appropriate jurisdiction.
The non-existence of a jurisdictional fact means that the exercise of the relevant statutory power is without legal authority.
The question of whether a matter is a jurisdictional fact is one of the construction of the statute conferring the relevant power.
Matters that have been held to constitute a jurisdictional fact include the questions of whether an activity under Part 5 of the EP&A Act is “an activity that is likely to significantly affect the environment” (within the meaning of section 5.7) and the characterisation of the use of land as a prohibited use.
Court of Appeal Decision
Justice Leeming (with Justices Gleeson and Adamson agreeing) held that compliance with provisions of environmental planning instruments is not a jurisdictional fact amenable to judicial review.
In reaching this conclusion, his Honour relied upon the reasoning of the majority decision in the case of Ross v Lane [2022] NSWCA 235.
It was held that clause 4.3 of the LEP was a mandatory matter for consideration by the Commissioner as a decision in the proper exercise of the Court’s functions included the consent authority’s function of considering the matters in s 4.15(1) of the EP&A Act, with this function being imported to the LEC by dint of section 8.14 of the Act.
In this way, there was no material difference between a development consent granted by a consent authority or by the LEC following a hearing, and a consent granted under section 34(3) of the LEC Act following a conciliation conference. The provisions of environmental planning instruments are mandatory considerations under section 4.15(1)(a) of the EP&A Act in all instances.
Notwithstanding this, in construing the relevant statutory context (the EP&A Act) clause 4.3 of the LEP was not a jurisdictional fact because:
- Public inconvenience would arise by rendering development consents more open to challenge;
- The matters referred to in the other sub-sections of section 4.15(1) were clearly non-jurisdictional in nature and involved an inherently evaluative exercise to be undertaken by the consent authority rather than a Court, and it is unlikely that the legislature intended some matters to be jurisdictional and others not;
- The EP&A Act contains a careful regime of notification and consultation, during which objectors have had an opportunity to express their views, and this tends against a legislative intention to permit challenges to consents.
The appeal was dismissed and the Appellants were ordered to pay the Respondent’s costs.
Implications
The decision in El Khouri makes it clear that the determination by a consent authority (or the LEC exercising the functions and discretions of such an authority) that a development complies with the provisions of an environmental planning instrument (such as development standards for height, floor space ratio and so on) will not be amenable to judicial review on the basis of the non-existence of a jurisdictional fact, even if the determination is later established to be factually incorrect.
The case also highlights the difficulties associated with seeking to have a development consent set aside on the basis of invalidity. In practice, this may mean an increase in reliance upon other grounds of judicial review, such as a failure to consider matters relevant to the decision at hand.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
