Maitland City Council v Anambah Homes Pty Limited

(2005) 64 NSWLR 695; [2005] NSWCA 455

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Privative provisions
3. › Hickman principle
4. › Third limb — whether decision reasonably capable of reference to power
5. › Whether excess of jurisdiction must appear on face of decision
6. › Whether 'manifest jurisdictional error' is the correct test
1. Administrative Law
2. › Privative provisions
3. › Inviolable restraints
4. › Whether mandatory statutory precondition constitutes inviolable restraint not protected by privative clause
5. › Environmental Planning and Assessment Act 1979 (NSW), ss 94(11), 101
1. Environment and Planning
2. › Development consent
3. › Conditions
4. › Condition requiring dedication of land free of cost
5. › Whether condition imposed in breach of s 94(11)
6. › Whether privative provision in s 101 protects condition from challenge
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 80A(1), 94, 94B, 101
1. Environment and Planning
2. › Development consent
3. › Severability of conditions
4. › Whether invalid condition severable from balance of consent
5. › Whether deletion of condition would alter operation of remaining consent

Quick Take

Section 94(11) of the EP&A Act constitutes an inviolable restraint on the power to impose conditions requiring dedication of land, such that the privative provision in s 101 cannot protect a condition imposed in breach of s 94(11). The third limb of the Hickman principle is satisfied where the excess of jurisdiction does not appear on the face of the consent itself, requiring resort to extrinsic material (such as a contributions plan) to establish invalidity. 'Manifest jurisdictional error' is not a standalone test for the operation of privative clauses.