Under the post-1998 Environmental Planning and Assessment Act 1979, the classification of a development as prohibited under Division 1 of Part 4 involves a jurisdictional fact that must be determined objectively, not by reference to what was reasonably open to the council. A development application to a council for a prohibited development is not an application in terms of the Act and any consent granted is void. The Londish v Knox Grammar School approach does not apply to the determination of whether minimum performance criteria are met where that determination goes to the council's jurisdiction. An amendment to an environmental planning instrument that applies to applications 'made but not finally determined' does not extend to applications already determined by the council, even if that determination is under challenge.
The full text is available to signed-in members, including the 29 later cases that cite this judgment.
2 of the 29 citing cases carry a classified treatment. How each court treated it is available to signed-in members.