The determination by a consent authority that a development is not 'likely to significantly affect threatened species' under s 77(3)(d1) of the EPA Act is not conclusive; a court on judicial review may determine for itself whether the fact exists. Whether a factual reference in a statute is a jurisdictional fact depends on the proper construction of the statutory formulation, with a key distinction being whether the factual reference occurs in the formulation of a power to be exercised by the decision-maker (unlikely to be jurisdictional) or is preliminary or ancillary to the exercise of a statutory power (more likely to be jurisdictional). The reasoning in Londish v Knox Grammar School does not apply to statutory provisions that impose requirements on applicants rather than conferring powers on decision-makers.
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