TRIVES v HORNSBY SHIRE COUNCIL and Others [2015] NSWCA 158
Court of Appeal: Basten, Macfarlan and Meagher JJA 15 May, 11 June 2015
Building Control and Town Planning — Consents — Validity — Complying
development — Characterisation of development as “complying development” — Environmental
Planning and Assessment Act 1979 (NSW), s 76A, s 84A, s 85A(3), s 85A(10).
Administrative Law — Statutory powers — Judicial review — Ultra
vires —
Jurisdictional facts.
Statutes — Statutory powers and duties — Construction — Prerequisite
to the exercise of power.
Section 76A of the Environmental Planning and Assessment Act 1979 (NSW) provided, relevantly:
“76A Development that needs consent
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must
not carry the development out on land to which the provision applied unless:
such a consent has been obtained and is in force, and
the development is carried out in accordance with the consent and the instrument.
For the purposes of subsection (1), development consent may be obtained:
by the making of a determination by a consent authority to grant development consent, or
in the case of complying development, by the issue of a complying development certificate.
…
(5) Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development
standards is complying development.”
Section 84A of the Environmental Planning and Assessment Act 1979 (NSW) provided that a person may carry out complying development on land if
he or she had been issued with a complying development certificate for the develop- ment.
Section 85(7) of the Environmental Planning and Assessment Act 1979 (NSW) imposed an obligation to issue a complying development certificate on
an accredited certifier if the development was a complying development. Section 85A(10) further provided that there would be “no right of appeal against
the determination of, or a failure or refusal to determine, an application for a complying development certificate”.
The applicant was an accredited certifier under the Environmental Planning and Assessment Act 1979 (NSW). In three separate proceedings in the
Land and Environment Court, the primary judge determined as a separate question that complying development certificates issued by the applicant were
not valid.
The applicant sought leave to appeal on the ground that the primary judge erred in determining that the characterisation of the proposed development as
a complying development was a jurisdictional fact, which did not depend upon the opinion of the accredited certifier.
Held: (1) Whether a particular matter was jurisdictional, in the sense of its existence being a precondition to the engagement of the power, was a question of statutory construction and questions of inconvenience and uncertainty were pragmatic considerations that were secondary to questions of statutory construc- tion. ([17], [44]; [63]; [64])
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
at [6], applied.
The characterisation of the proposed development as complying develop- ment was not a matter to be determined by the court because:
it would be internally inconsistent for a statute to confer power to determine a fact on a certifier, and yet intend the existence of the
fact to be ultimately determined by a court; and
in contrast to the development consent function under consideration in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422;
61 NSWLR 707, the characterisation or classification of a proposed development as “complying development” by a certifier was not ancillary
or extrinsic to the function conferred on them and once that classification had taken place there were no discretionary factors permitted.
([28]–[34], [39], [50]–[51]; [63]; [64])
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
at [49]–[51], distinguished.
(Obiter) The reasoning in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651 regarding the constitutional
limits of the Commonwealth Parliament in relation to imposing time limits on judicial review does not necessarily lead to the same conclusion with
respect to the limits imposed on a state legislature. The question in that regard is whether such a limitation would remove “a defining characteristic”
of the Supreme Court of a state, so as to contravene the requirement of s 73 of the Commonwealth Constitution that such a body continue to exist. ([48])
Discussion of the nature of jurisdictional facts.
CASES CITED
The following cases are cited in the judgments:
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651
Buck v Bavone (1976) 135 CLR 110
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
Duffy v Da Rin [2014] NSWCA 270; 87 NSWLR 495
Hornsby Shire Council v Trives [2014] NSWLEC 171
Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; 310 ALR 113 Minister
for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21;
197 CLR 611
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
APPEAL BY LEAVE
This was an application for leave to appeal heard together with the appeal from the determination of a separate question in three sets of proceedings
by a judge of the Land and Environment Court.
JE Robson SC and L Waterson, for the applicant/appellant.
AE Galasso SC and MJ Astill, for the first respondent.
The second and third respondents, K Sum and YY Sum, appeared in person.
Judgment reserved
11 June 2015
BASTEN JA. The applicant, Simon Trives, acting as an accredited certifier under the Environmental Planning and Assessment Act 1979 (NSW)
(EP&A Act), issued three “complying development certificates” permitting additional development on land used for residential dwelling
houses in the Hornsby Shire Council local government area. On being notified of the determinations, the council took the view that the
proposed development in each case was not “complying development” for which a certificate could issue. It commenced three sets of proceedings
in the Land and Environment Court alleging in each that the certificate was invalid. It sought consequential relief (against Mr Trives
and not the owners of the land) that the unlawful structures erected on the land be demolished and removed.
The three cases proceeded together in the Land and Environment Court. In each, a judge directed the determination of a specific question separately
from other issues arising in the proceedings, namely:
“Did the [applicant] issue valid complying development certificates for development to be carried out on each property identified in those
certificates?”
On 20 October 2014 the primary judge (Craig J) answered the specific question relevant to each proceeding in the negative, holding that each
certificate was invalid.1 Final orders not being made, the judgment in each case was interlocutory. An appeal therefore
required leave.2 Some further aspects of the procedure adopted in the Land and Environment Court must be identified
in order to deal with that issue.
1 Hornsby Shire Council v Trives [2014] NSWLEC 171 at [32] and [35].
2 Land and Environment Court Act 1979 (NSW), s 57(4).
Although it might not be accurate to say that the council consented to a grant of leave, it did not actively resist it. As will appear shortly,
the issue raised by the case is one of potential public importance, warranting a grant of leave. Further, the issue sought to be raised
was clearly arguable. Nevertheless, there is a basis to doubt that this is an appropriate vehicle to consider the issue.
The issue of a complying development certificate constituted a streamlined form of development approval. The separate question identified above
did not reveal the ground upon which the validity of the certificates was challenged. The landowners took no part in the proceedings, either
in the Land and Environment Court, or in this court. It was possible that they did not appreciate the full scope of the challenge to their
development proposals, which ultimately went some way beyond a challenge to the validity of the certificates.
After setting out the generic question in the form set out above,3 the primary judge noted
that each certificate identified the proposed “complying develop- ment” as a “detached studio”.4 The
judge then noted the basis of the council’s challenge in the following terms:
“[5] … The Council contends that, properly characterised, the development proposed could not be so described.”
That language appeared to identify an error of law. That is, on the basic facts, which were agreed, the proposed development did not, in law,
fall within the language of the relevant environmental planning instrument; it therefore could not be a complying development. Thus, any
complying development certificate was in law invalid.
That was not, however, the way in which the issue was addressed by the parties. The judge noted that the parties had agreed upon a statement
of facts and upon the documents relevant in each proceeding, which were primarily the certificate and the attached plans. He then stated:
5
“[7] … They agree that characterisation of the development for the purpose of determining whether the complying development certificates
were lawful is an issue of jurisdictional fact to be determined by the Court (Woolworths Ltd v Pallas Newco Pty Ltd …
6). Thus, the need to consider the evidence that has been tendered by consent.”
The language of “jurisdictional fact” is commonly used as a basis for review of administrative decisions. A “jurisdictional fact” describes
a fact which is an essential precondition to the exercise of a power. For a person to seek to exercise the power absent such a fact is
to act without legal authority.
Preconditions to the engagement of a power come in different forms. One common form is a requirement that the repository of the power be “satisfied”
as to the existence of a particular matter. Perhaps unhelpfully, the existence or absence of such an opinion is itself referred to as a
“jurisdictional fact”.7
For legal purposes, facts do not exist, or not exist, in the ether. The existence or otherwise of a fact depends on a body with authority to
do so making a finding as to the existence of the fact. To describe a fact as jurisdictional is to say that its existence or otherwise
may depend upon a finding, not by the
3 Judgment at [3].
4 Judgment at [5].
5 Judgment at [7].
6 [2004] NSWCA 422; 61 NSWLR 707 at [88].
7 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130] (Gummow J), noting that the phrase is “an awkward one in such circumstances”.
repository of the power, but by a court with the function of reviewing the repository’s decision. As a practical matter, a party challenging
the existence of such a fact will be entitled to call evidence and, in effect, carry out a trial in the original jurisdiction of the court,
to the extent necessary for the court to determine the fact.
Whether a fact is jurisdictional in this sense will be a question of statutory interpretation. As noted by Dixon J with respect to a matter
going to the jurisdiction of a magistrate:8
“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the
occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court
contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do
exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing
power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid.
Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no
enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention
is clearly expressed.”
It cannot be said that the principle applies with the same force with respect to non-judicial officers. Nevertheless, inconvenience will often
be a factor in determining the proper construction of the statutory provision in question, if the language is otherwise susceptible to
such a meaning.
Before considering the relevant statutory provisions, a further qualification on the significance of the principle should be noted. If it were
thought that the validity of the certificate turned on the state of satisfaction of the accredited certifier, that would not place the
certificate beyond challenge. The certifier must act according to the law, and must act rationally and not unreasonably. Whether these
requirements permit close scrutiny of the certifier’s decision, or whether a challenger will bear a heavy burden in seeking to establish
unreasonableness, is not a matter which needs to be considered in this case. It may, however, be noted that the certifier does not give
reasons and, accordingly, any inference of unreasonableness will need to be drawn from an objective consideration of the matters in issue
before the certifier and the actual decision reached.9
These introductory comments are relevant because the question raised by the applicant for this court was limited to the following ground:
“His Honour erred in answering the question posed for determination in the proceedings below on the basis that the issue of the characterisation
of the proposed development for the purpose of determining whether the complying development certificate issued by the appellant under
the Environmental Planning and Assessment Act … was valid was a jurisdictional fact.”
As will be explained, there is doubt as to whether this was a “fact” at all and as to whether the primary judge dealt with it as such. Nevertheless,
it is possible to deal with these matters in a manner which will resolve the legal issue sought to be raised by the parties and, accordingly,
it is appropriate that there be a grant of leave to appeal.
8 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391.
9 See Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
Because the sole ground of appeal challenges a common assumption in the court below, there is no need at this stage to address the reasoning
of the trial judge. As the respondent noted, there had been no challenge to that reasoning. Further, although the approach adopted before
the primary judge was said to derive from the decision of this court in Pallas Newco, the applicant did not seek to challenge
the correctness of that decision. Rather, he sought to distinguish it. There is no doubt, as noted by Spigelman CJ in Pallas Newco,
10 that whether a particular matter is jurisdictional, in the sense of its existence being a precondition
to the engagement of the power, is one of statutory construction. The Chief Justice continued:
“[6] … What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language
of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope
and nature of the jurisdiction and of the fact said to be jurisdictional.”
The statutory power in question in the present case, involving the issue of a complying development certificate, is not the power which was
in issue in Pallas Newco. What is in dispute is whether the statutory scheme with respect to complying development certificates
is materially different from that with respect to grants of development consent by consent authorities considered in Pallas Newco.
The council says there is no material difference, the nature of the exercise being relevantly the same in each case; the applicant says
there is a critical difference in the manner in which such a certificate is given. The answer to this dispute is self-evidently an exercise
which requires careful analysis of the statute.
Part 4 of the EP&A Act contains a structured scheme for the regulation of development, including the use of land and the carrying out of
work on land. As the heading to Div 1 indicates, that structure depends upon a threefold classification. First, some activities, described
as “exempt development”, may be undertaken without the need for consent.11 This case was
not concerned with exempt development. Secondly, there is development that needs consent. Thirdly, there is prohibited development. Prohibited
development is develop- ment which is not to be carried out on land, with or without consent.12 However,
it is an important part of the council’s argument that development which can be carried out with consent is prohibited if carried out without
consent.13
The kinds of development which fall within each category are identified by environmental planning instruments. The relevant instruments in
the present case were the Hornsby Local Environmental Plan 2013 (Hornsby LEP) and the State Environmental Planning Policy (Exempt and Complying
Development Codes) 2008 (NSW) (State Planning Policy). The Hornsby LEP, like most such instruments, regulates permissible forms of development
by reference to the zoning of land within the local government area and categories of develop- ment.
10 Pallas Newco at [6].
11 EP&A Act, s 76.
12 EP&A Act, s 76B.
13 EP&A Act, s 76A(1).
Relevantly for present purposes, there are two sets of procedures for obtaining consent where that is required. The primary procedure is that
identified in Pt 4 Div 2, covering ss 77–83 of the EP&A Act. This requires a development application to be made to the relevant consent
authority, which is usually the local council. Different forms of development may require different steps to be taken. Thus “designated
development” requires that the application be placed on public exhibition, followed by a process of public consultation.14 There
are also special procedures with respect to “staged development”.15
Importantly for present purposes, there is a separate set of procedures with respect to “complying development”, described in the heading to
Pt 4 Div 3 as “Special procedure for complying development”, to be found in ss 84–87 of the EP&A Act. A person may carry out complying
development if he or she has been issued with a “complying development certificate”. This is intended to be a streamlined process available
for development “that can be addressed by specified predetermined development standards”.16 Further
details as to the nature of such development are set out in the State Planning Policy for complying development, but the straightforward
principle is that development which can be determined by reference to predetermined standards does not need to go through a discretionary
process of assessment by a consent authority and the formulation of detailed conditions appropriate to the specific development.
A complying development certificate can be issued by either a local council or “an accredited certifier”.17 Where
a complying development certificate is sought, the developer is not required to make a “development application”, as would be the case
if consent were required in accordance with the discretionary powers conferred by Pt 4 Div 2. Indeed, the term “development application”
is defined to exclude an application for a complying development certificate.18 Nevertheless,
consent for complying development can be given by a consent authority in response to a development application.19
The fact that either course is open was relied upon by the council as a significant reason why the same approach should be taken
to the “characterisation” of the development where consent is sought pursuant to the discretionary power (Pt 4 Div 2) as would be the
case if a certificate were sought under Pt 4 Div 3. However, if the functions and processes differ under the separate divisions, it
would be wrong simply to assume that the available grounds of review will be the same in each case.
There were other factors relied upon by the council to support the conclusion that the proper characterisation of the proposed development
was a matter for the court and not for the consent authority or accredited certifier. First and foremost, the council relied upon the language
of the provisions by which the need for consent and the procedure by which it was to be obtained were identified. These provisions, the
council submitted, all required that the proposed development must, in an objective sense, be development which fell within the language
of the statute and the relevant environmental planning
14 EP&A Act, ss 79–79A.
15 EP&A Act, Pt 4 Div 2A ss 83A–83D.
16 EP&A Act, s 76A(5).
17 EP&A Act, s 85A(1).
18 EP&A Act, s 4(1), “development application”.
19 EP&A Act, s 84A(5).
instrument. This was a structural argument and, to understand its force, it is necessary to set out the relevant passages relied upon.
“76A Development that needs consent
If an environmental planning instrument provides that specified development may not be carried out except with development consent,
a person must not carry the development out on land to which the provision applies unless:
such a consent has been obtained and is in force, and
the development is carried out in accordance with the consent and the instrument.
For the purposes of subsection (1), development consent may be obtained:
by the making of a determination by a consent authority to grant development consent, or
in the case of complying development, by the issue of a complying development certificate.
…
(5) Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed
by specified predetermined development standards is complying development.
…
This Division applies to complying development.
A person may carry out complying development on land if:
the person has been issued with a complying development certificate for the development …”
The particular phrases relied upon by the council have been italicised. Thus, for example, the exception to the prohibition in s 76A(1), namely
the issue of a complying development certificate, pursuant to s 76A(2)(b), only applies, it was submitted, “in the case of complying development”.
Accordingly, if steps were taken to enforce the prohibition, the offending developer would need to produce not only a certificate, but
also proof to the satisfaction of the court that the development in issue was indeed “complying development”. To similar effect, the provisions
of Div 3 only apply to “complying development” (s 84) and the permission granted under s 84A only operates with respect to “complying development”.
Again, the council argued that, in the case of a dispute, whether the impugned development was complying development, or not, was a matter
for the court. That matter was not to be determined by proving that an appropriate authority, whether a council or an accredited certifier,
had formed a particular view. Thus, “complying development” is a defined term, but is not defined according to the state of satisfaction
of any person. It is therefore an objective fact to be made good to the satisfaction of the relevant court.
That the language relied upon is open to such a construction may readily be accepted: it is not however decisive. There is another available
construction, namely that to specify particular provisions which apply in particular circumstances, in this case by reference to “complying
development”, is merely to use the term as a generic label and not as an operative precondition. The use of the label is neutral on the
question of “complying development in whose opinion?”
In many cases the question (in whose opinion?) may seem redundant. Assuming that the relevant standard is one of some clarity, most cases will
readily fall within or without the standard. Nevertheless, people make mistakes and in other cases the answer may not be obvious. Nor do
courts assume that facts are “objectively” established or not established. On the contrary, in civil cases, courts determine facts on the
balance of probabilities. Thus, in borderline cases, the question can be critical. If Parliament has conferred power on a certifier to
decide what is and is not complying development, the court will only intervene in limited circumstances and will not itself seek to answer
the question.
Accepting that the council’s reliance upon the use of the term “complying development” is not conclusive, it is necessary to turn to the primary
arguments relied on by the applicant. These were threefold. First, the applicant submitted that the very question (is the proposed development
complying development?) was expressly identified as the first question to be determined by the certifier. That followed from the terms
of s 85A(1) and (3):
“85A Process for obtaining complying development certificates
An applicant may, in accordance with the regulations, apply to:
the council, or
an accredited certifier,
for a complying development certificate.
…
The council or accredited certifier must consider the application and determine:
whether or not the proposed development is complying development, and
whether or not the proposed development complies with the relevant development standards, and
if the proposed development is complying development because of the provisions of a local environmental plan,
or a local environmental plan in relation to which the council has made a development control plan, that
specifies standards and conditions for the complying development, whether or not the proposed development
complies with those standards and conditions.”
The second matter relied upon by the applicant was that, in answering that question, the certifier might need to make an evaluative judgment,
but it had no discretion. Thus, the certifier “must not refuse to issue a complying development certificate if the proposed development
complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to
the issue of a complying development certificate”.20
In short, s 85A(3) required the certifier to consider the application and form an opinion as to each of the three elements identified. The
obligation to issue the certificate (under subs (7)) must be engaged by the formation of the relevant opinion. No doubt, if the opinion
were not validly formed in accordance with relevant legal requirements, the obligation would fall away; however, it makes little sense
to suggest that the obligation in subs (7) depends
20 EP&A Act, s 85A(7).
upon some objective view of whether the proposed development was complying development or not.
Furthermore, if the operative provisions with respect to complying develop- ment depended on the opinion of the certifier, and not an objective
state of facts, it would be inconsistent to treat the earlier labelling provisions as themselves imposing a limitation based on an objective
fact.
There was a third basis in support of the applicant’s argument, namely that the legislature had expressly provided that there be “no right
of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate”.
21
An appeal is a statutory means of challenging a decision; if no express right of appeal is given, there is no appeal. Thus, a negative provision
of this kind is emphatic in its effect. An appeal is different from the exercise by this court of its constitutionally protected supervisory
jurisdiction, as found in s 69 of the Supreme Court Act 1970 (NSW). Judicial review in exercise of the supervisory jurisdiction
will include determination of jurisdictional facts, but the existence of a jurisdictional fact depends upon the construction of the statute.
It would be internally inconsistent for a statute to confer power to determine a fact on a certifier, deny an appeal from the certifier’s
determination and yet intend that the existence of the fact should ultimately be determined by a court.
This logic, inherent in the applicant’s submissions, must be accepted. The ambivalent indications to the contrary relied upon by the council
do not bear sufficient weight to deny the logic of the applicant’s position. Accordingly, the assumption on which the primary judge was
invited to act, namely that characterisation of the proposed development as a complying development was a matter to be determined by the
court, was erroneous. Unless the decision in Pallas Newco compels a different conclusion, the appeal must be upheld.
Pallas Newco involved a development consent granted by the Ashfield Municipal Council pursuant to a development application considered under Pt 4 Div 2 of the EP&A Act. The proposed use of the land was said to be a “drive-in take-away establishment”, a use which was permitted, with consent, under the relevant environmental planning instrument. Because the exercise of “characterisation” of a proposed development had been accepted in earlier cases to be a function conferred on the council, the case came before a five- judge bench. The principal judgment of Spigelman CJ, on this particular issue, was adopted by Mason P and Handley JA without further elucidation and thus forms the views of a majority of the court. Sheller JA came to the same conclusion, although by reasoning which appears to have placed somewhat greater weight on the joint judgment in Corporation
of the City of Enfield v Development Assessment Commission.22
The fifth member of the court, Cripps AJA, considered that the issue of inconvenience would suggest a contrary conclusion, were it not for
the reasoning of the Chief Justice with respect to the operation of s 101 of the EP&A Act.
The structure of the Chief Justice’s reasons involved the following steps, having acknowledged that the issue was one of statutory construction.
First, the
21 EP&A Act, s 85A(10).
22 [2000] HCA 5; 199 CLR 135, discussed at [154]–[159] and see [181].
broad legislative scheme was identified;23 secondly, “indicators of jurisdictional fact” were identified;24 thirdly,
“indicators against jurisdictional fact” were identified;25 fourthly, reference was made to s 101 of the EP&A
Act, on the proper construction of which the determination of the question was said to turn.26 Finally, a conclusion
was expressed that a balancing of the factors in favour of and against “characterisation” of a proposed development as jurisdictional,
led to the conclusion that it was.27
There were two aspects of this reasoning upon which reliance was placed by the parties. One was the role played by s 101 in the reasoning of
the Chief Justice; the other concerned an analysis of the operation of Pt 4 Div 2 which, as the council conceded, provided a potential
point of distinction from the present case. It is convenient to deal with the latter point first. The passage is in the following terms:
“[49] A factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some
other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process
itself, is a reference of a character that the Parliament intended to exist objectively.
[50] Section 79C of the Act makes provision for a consent authority to take into account a wide range of considerations when determining
to grant or withhold consent under s 80 of the Act. It is not necessary to set them out here. However, the particular facts and matters
which determine whether the proposed develop- ment falls within a classification do not inevitably arise in the course of considering
the exercise of the discretionary power to grant or withhold consent. The classification process is not only distinct but is extrinsic
to the process of determining whether consent should be given. No doubt the features of the development that determine the classification
have implications for the s 79C considerations, but that does not mean that the classification is a matter upon which a consent authority
must adjudicate when making a s 80 determination.
[51] Section 79C(1)(a)(i) requires a consent authority to take into consider- ation the provisions of any environmental planning instrument,
but classification is not a part of the plan that arises during the course of the evaluation process. The determination of whether
a particular development proposal answers the classifi- cation of ‘drive-in take-away establishment’ appears to me to be a reference
accurately described as either extrinsic or preliminary or ancillary to the exercise of the power to grant consent. It is not a matter
that falls to be considered under s 79C, in the course of making a determination under s 80.”
In a practical sense, it may have been somewhat surprising to consent authorities to learn that they were not required to take into account
the proper classification of the proposed development. Nevertheless, the reasoning identified that feature in the clearest terms as a matter
distinct from the discretionary judgment required under s 79C. By contrast, in the present case the characterisation or classification
of the proposed development was not ancillary or extrinsic to the function conferred on the certifier: it was a central and essential function.
Not only that, there were no discretionary factors permitted, once the certifier had determined that the proposal was complying development.
It is difficult in these circumstances to see Pallas Newco as a
23 At [20]–[29].
24 At [30]–[52].
25 At [53]–[66].
26 At [67]–[85].
27 At [86].
binding authority against the arguments presented by the applicant. It can only apply by way of analogous reasoning and, on that basis, application
of the principles set out in the passage at [38] above would support a contrary view to that presented by the council.
The other matter to which attention is required is the emphasis placed in Pallas Newco on the terms of s 101. It was not in dispute
that s 101 has an operation with respect to complying development certificates, to which it expressly refers. It is in the following terms:
“101 Validity of development consents and complying development certificates If public notice of the granting of a consent
or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the
validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person
at any time before the expiration of 3 months from the date on which public notice was so given.”
Section 101 does not purport to prevent judicial review of development consents or complying development certificates; rather, it imposes a
time limit on such challenges. If the time constraint is effective, it will limit the “inconvenience” resulting from the availability of
review in the sense of uncertainty with respect to the valid operation of a relevant consent or certificate, pending the expiration of
three months from the date of public notification.
In Pallas Newco the significance of s 101 related to the degree of inconvenience and uncertainty which would arise from treating the
function of “characterisation” as involving a jurisdictional fact. There had been suggestions in earlier cases that, as a form of privative
clause, s 101 might not be effective to protect against jurisdictional error. If that view had been correct, the validity of a consent
or a certificate could be challenged after, as well as before, the three-month period following public notification. Spigelman CJ, however,
rejected those concerns,28 concluding that the three-month limitation period was effective
and that, thereafter, review would be limited by the strict constraints of the Hickman principle.29
That being so, the Chief Justice concluded that “the degree of inconvenience that may arise from a finding that the fact was jurisdictional
is considerably attenuated by the strict time limit for challenge to a decision to grant consent”.30
The significance of that matter followed from the earlier reasoning that “[t]he most significant element suggesting that classification is
not a juris- dictional fact arises from the degree of inconvenience that can arise if a consent which is valid on its face and, indeed,
is entered upon a register of consents maintained by the Council … cannot be relied upon either by the person receiving consent
or by all those dealing with that person in relation to the land”.31
Questions of inconvenience and uncertainty are pragmatic considerations, by no means irrelevant, but which must be secondary to questions of
statutory construction. If the relevant provisions, construed in their statutory context, lead to the conclusion that characterisation
of a proposed development under Pt 4 Div 3 is not jurisdictional, there is no need to inquire into the
28 Pallas Newco at [83].
29 See The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 (Dixon J).
30 Pallas Newco at [85].
31 Pallas Newco at [63].
inconvenience which would have arisen had a different construction been adopted.
In the event that questions of inconvenience and uncertainty were relevant, the applicant submitted that the comfort taken from the restrictive
effect of s 101 in Pallas Newco could no longer be relied upon as a result of the decision of the High Court in Kirk v Industrial Court of New South Wales.
32 That case held that a “privative provision in State legislation, which purports to strip the Supreme Court of the State of its
authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error,
is beyond the powers of the State legislature”.33 However, the court also stated what it was not saying,
namely “that there can be no legislation affecting the availability of judicial review in the State Supreme Courts”.34
The expansion of Kirk beyond its sphere of operation must be undertaken with caution. It was concerned with review by this court of
a decision of a superior court of record, albeit one with limited jurisdiction, namely the Industrial Court. It was not, in terms, concerned
with decisions of non-judicial bodies. Further, it was concerned with a strong form of privative clause, not a provision imposing a limitation
period on otherwise available relief. Both these matters raise difficult questions which should not be determined unless they squarely
arise. For example, s 101 of the EP&A Act does not directly affect the jurisdiction of this court to review an administrative decision.
It imposes a limit on review by the Land and Environment Court, although the reason for that lies in other statutory provisions which confer
exclusive jurisdiction on the Land and Environment Court with respect to the supervisory jurisdiction involving a planning or environmental
law, which includes the EP&A Act.35
The argument assumed that the vesting of exclusive jurisdiction in the Land and Environment Court is effective, but that the imposition of
a time limit on the exercise of that jurisdiction is not.
With respect to the second aspect, the effect of a limitation period is simply not discussed in Kirk. It was, however, discussed in
a case dealing with the scope of possible regulation of the jurisdiction of the High Court, pursuant to s 73 of the Commonwealth Constitution,
of a limitation period on review of administrative decisions under the Migration Act 1958 (Cth). That decision, Bodruddaza v Minister for Immigration and Multicultural Affairs,
36 held that a similar (12-week) limitation period (imposed by s 486A of the Migration Act) was not effective to diminish
the power of the court to grant remedies under s 75(v) of the Commonwealth Constitution.37 However, that reasoning
with respect to the constitutional limits of the Commonwealth Parliament does not necessarily lead to the same conclusion with respect
to the limits imposed on a state legislature. The question in that regard, as identified in Kirk, is whether such a limitation
would remove “a defining characteristic” of the Supreme Court of a state, so as to contravene the requirement of s 73 of the Commonwealth
Constitution that such a body continue to exist.
32 [2010] HCA 1; 239 CLR 531.
33 Kirk at [55].
34 Kirk at [100].
35 Land and Environment Court Act, s 71, s 20(1)(e) and s 20(3).
36 [2007] HCA 14; 228 CLR 651.
37 Bodruddaza at [53]–[60] and [64].
This is a large question. As Bodruddaza explained, there can be significant practical difficulties with limitation periods expressed
in absolute terms which deny any discretion to a court to extend time in circumstances where the justice of the case so demands.38 On
the other hand, decisions under the EP&A Act are quite different in their nature from decisions under the Migration Act and
operate in a different context, involving quite different elements of public interest.
Given that the applicant’s submissions should be upheld on a different basis, it is not necessary to determine whether this particular submission
should be accepted. Indeed, in significant respects, the issues identified above were not addressed.
For these reasons, Pallas Newco does not govern the outcome in the present case and, indeed, provides a firm basis in principle for
approaching the effect of a complying development certificate differently from a development consent.
It is appropriate, however, to make some further comment as to the approach adopted in Pallas Newco with respect to the concept of
“jurisdictional fact”. As explained in Corporation of the City of Enfield, “[t]he term ‘jurisdictional fact’ (which may be a complex
of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion”.
39 In short, the phrase “jurisdictional fact” is a potentially confusing label for what is better described
as a precondition to the engagement of a statutory power.
There was credence to be given at one time to the view that conditioning a power on the satisfaction of the decision-maker would tend to immunise
an exercise of power from judicial review. The fact that review of a state of satisfaction was likely to be constrained, though not impossible,
was noted by Gibbs J in 1975 in Buck v Bavone.40 Two years later, the task was
made considerably easier, at least in federal jurisdiction, by the introduction of a requirement for reasons pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).
There have been further developments in judicial review, even in the decade since Pallas Newco was decided, which have tended
to expand the grounds of review, for example by reference to a constructive failure to exercise a power, which may extend beyond caprice,
arbitrariness and gross unreasonableness, at least (as here) where the primary facts are not in dispute. That is particularly so where
the real issue, as revealed by the reasoning of the primary judge, turned upon the proper construction of the relevant environmental planning
instruments.
In that context, there has been a further development: the principle that no question of law arose with respect to statutory language involving
words in their ordinary everyday meaning has given way, in many circumstances, to the principle that, as words take their meaning from
their context, the construction of statutory language will usually give rise to a question of law.41 These
factors, in combination, make it unlikely that an application for judicial review
38 Bodruddaza at [56]–[57].
39 Enfield at [28].
40 (1976) 135 CLR 110 at 118–119.
41 Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564 at [50]–[54] (Lindgren J); Mainteck
Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; 310 ALR 113 at [73]–[75] (Leeming JA, Ward and Emmett JJA agreeing); Duffy
v Da Rin [2014] NSWCA 270; 87 NSWLR 495 at [25]–[30] (Basten JA, Meagher and Ward JJA agreeing).
will need to rely upon the somewhat confusing concept of “jurisdictional fact” in order to establish a ground of review in circumstances where
there is truly an arguable issue as to validity of the exercise of a power.
A further point to be noted is that the argument in the present case spoke of “characterisation” of a proposed development, being language
used in Pallas Newco, as if it were a term of art signifying a jurisdictional fact. Such an approach misunderstands the nature
of precedent in the exercise of statutory construction.
It follows that the appeal must be upheld on the only ground upon which the case was argued. At one stage the applicant contended that success
on that point would entitle him to a judgment, presumably dismissing the council’s proceedings in the Land and Environment Court.
That position was not easily supportable. It is true that, in its summons commencing proceedings in the Land and Environment Court, the council
sought a declaration that the certificates were invalid. However, it did so on the basis that the proposed developments could not properly
be characterised as detached studios, as they were in the relevant certificates. That suggested a limited question of law. The convenience
of separating that question from issues relating to relief is far from clear. Had the relatively confined issues raised by the proceedings
in the Land and Environment Court been determined as a whole, much time and energy would have been saved and the matter could have been
finally disposed of by this court on appeal. In the circumstances, that is not possible. Although the primary judge sought to dispose of
the question of “characterisation” as a jurisdictional fact, it might well be open to the court to reach a similar result (namely that
the certificates were invalid) by identifying the proper construction of the relevant environmental planning instruments. However, whether
the judge’s reasoning in this regard was correct or erroneous was not an issue litigated in this court and no finding (nor further comment)
is appropriate. The council put on no notice of contention seeking to support the decision raised by the primary judge on other grounds.
The matters must be remitted to the Land and Environment Court.
The applicant having succeeded in this court on a basis which was not raised before the primary judge, there is a real issue as to the appropriate
orders as to costs, both in this court and in the Land and Environment Court.
So far as the costs below are concerned, the matter remains unresolved. Both parties, not including the landowners who were not active participants
in the proceedings either in the Land and Environment Court or in this court, appear to be partly responsible for this result. The order
that the applicant pay the council’s costs of the proceedings in the Land and Environment Court should be set aside. Those costs should
depend on the final outcome of the council’s application, which is to be remitted.
So far as costs in this court are concerned, the applicant has been successful on the only issue litigated. The council resisted an adverse
costs order if it lost on the basis that the particular issue could have been raised before the primary judge; accordingly, it submitted,
there should at least be no order as to the costs in this court.
While there is something to be said for that position, the council was content to have the matter proceed on the somewhat artificial basis
on which the matter has been dealt with in this court. It actively resisted the applicant’s contentions. The preferable course is to require
the council to pay the applicant’s costs in this court.
The court should make the following orders:
Grant the applicant leave to appeal in each of the proceedings the subject of the judgment in the Land and Environment Court delivered
on 20 October 2014.
With respect to each matter, allow the appeal and set aside orders (1) (answering the separate questions) and (3) (as to costs) made
on 20 October 2014.
Order that the Council’s applications to the Land and Environment Court be determined according to law.
Order the Council to pay the applicant’s costs in this Court.
Orders as per [62]
Solicitors for the applicant/appellant: TressCox Lawyers.
Solicitors for the first respondent: Storey & Gough Lawyers.
Solicitors for the second and third respondents, C Huynh and C Lin:
Wilshire Webb Staunton Beattie Lawyers.
Solicitors for the second and third respondents, L Bardo and J Yan: Hunt & Hunt.
CH PARKIN
Barrister