Compliance with LEP controls held not to be a Jurisdictional Fact
In this pivotal decision for NSW local councils, the Court of Appeal held that compliancewith a local environmental plan (LEP) height control was not a jurisdictional fact. As a result, an innocent mistake by a consent authority about factual compliance with an LEP control will not, on its own, invalidate a consent. This decision may also have broader implications for the enforceability of mandatory LEP provisions.
Consent granted by the Land and Environment Court
In 2022, Council refused development consent to Gemaveld for the construction of a multi-level house. Gemaveld appealed the decision in Class 1 proceedings in the NSW Land and Environment Court. One of the issues in dispute was compliance with the height control under the Kogarah Local Environmental Plan 2012 (Kogarah LEP), in which height was measured from the existing ground level to the top of the proposed building.
The calculation of height was not straightforward because the site was steeply sloping and uneven. For the purposes of the appeal, Gemaveld produced a survey which appeared to show compliance. Based upon this survey, an agreement was reached under s 34(3) of the Land and Environment Court Act 1979 (the Court Act). The parties supplied the Court with a jurisdictional statement explaining why, in their view, the Court had jurisdiction to make the decision. This statement was accepted by Horton C, who granted consent for the development in Gemaveld Pty Ltd v Georges River Council  NSWLEC 1182.
The issue in the Court of Appeal
The appellants (objectors who had not been parties to the decision in the Land and Environment Court) sought judicial review of the Commissioner’s decision in the Court of Appeal. They relied on fresh survey evidence to show that the proposal would in fact exceed the height control in Kogarah LEP. However, this survey evidence had not been before Horton C when he decided to grant consent. To the contrary, all of the documentation before Horton C at that time had indicated that the proposal was compliant.
Therefore, the issue to be determined in the Court of Appeal was whether compliance with the height control was jurisdictional fact, such that the consent would be invalid if it had in fact been granted in breach of the height control, notwithstanding that the Commissioner had lawfully considered the height control and formed the opinion that the proposal was compliant.
Indicators of jurisdictional fact
A ‘jurisdictional fact’ was described by the Court of Appeal as “a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question”. The Court observed that whether a criterion constituted a jurisdictional fact was fundamentally a question of statutory construction.
The respondents relied on Ross v Lane  NSWCA 235. In that decision, a majority of the Court of Appeal held that the question of whether a proposal involved a ’substantial redevelopment‘ within the meaning of a relevant State Environmental Planning Policy (SEPP) was not a jurisdictional fact for reasons which included (1) it did not involve making a distinction between prohibited and permissible development (2) it involved the making of an evaluative judgment, and (3) the obligation to consider the SEPP was contained in s 4.15(1)(c), which was a section forming part of the decision-making process, rather than a section conferring power to make a decision. The Court also had regard to the inconvenience which could be caused by making consents liable to be set aside based purely on the Court coming to a different view on a contestable question.
The appellants sought to distinguish Ross v Lane on the grounds that that case had involved judicial review of a decision of a Council to grant consent under s 4.16 of the EP&A Act, whereas this case involved judicial review of a decision by a Commissioner under s 34(3) of the Court Act. However, the Court observed that, under s 34(3), the Commissioner had to be satisfied that the decision was one which the Court could have made in the exercise of its discretion. This, involved the Court exercising the same functions and discretions as if the decision had been made by the Council. The Court found that, apart from this, all of the factors which had led the Court to find that the relevant criterion was not a jurisdictional fact in Ross v Lane also applied in the present case. Therefore, objective compliance with the height control was held not to be a jurisdictional fact.
The appellants further argued that the height control in Kogarah LEP was applied by its own force, independently of s 4.15(1) of the EP&A Act. The Court rejected this proposition, finding that it was inconsistent with the unanimous findings of the Court in Ross v Lane, and also that the requirement to take provisions of an environmental instrument into account in s 4.15(1) of the EP&A Act would be redundant if the environmental planning instrument applied by its own force. The Court emphasised that the scheme of the EP&A Act involved the creation of rights and obligations by reference to the contents of environmental planning instruments rather than directly by means of environmental planning instruments. For example, if an environmental planning instrument provided that development was prohibited, carrying out that development would be an offence against s 4.3 of the EP&A Act rather than an offence against the instrument per se.
A further argument made by the appellants was that, even if the drafters had intended to make some of the more ’evaluative‘ clauses in an LEP, not jurisdictional facts, they likely would have intended for the more “objective” clauses like the height to be jurisdictional. The Court did not agree, finding that the LEP itself could not determine whether the power conferred by the statute was subject to a jurisdictional fact. This finding is significant because it makes it clear that the jurisdictional fact finding was based upon construction of s 4.15(1)(a), rather than on construction of the particular LEP which imposed the control.
This decision only has direct application to a case where the consent authority has made an innocent factual mistake about the application of a control in a particular case. Provided that the consent authority has lawfully formed that opinion and that it was not procured by fraud, then such a decision will not be liable to be set aside merely because the Court forms a different view based upon fresh evidence tendered in judicial review proceedings.
However, with Lane v Ross, this decision potentially has much wider implications for any attempt to challenge a decision of any consent authority based on non-compliance with a mandatory control in an environmental planning instrument.
It has usually been assumed that a consent authority cannot legally grant consent to a development which breaches a mandatory control in the LEP without relying on an express exception such as cl 4.6 of the Standard Instrument (Local Environmental Plans) Order 2006. However, the Court of Appeal has now pointed out that s 4.15(1)(a)(i) only requires that a consent authority “consider” a mandatory control in an LEP, and “it is one thing to take into account a matter, another to be bound by it”. In future cases, this could pave the way for other arguments about the circumstances in which a consent authority may validly depart from a mandatory LEP control.
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