Lesnewski v Mosman Municipal Council

[2005] NSWCA 99

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Privative clauses
4. › Time-limited privative clause
5. › Operation of threefold Hickman principle
6. › Whether procedural fairness is an 'inviolable limitation or restraint'
7. › Whether privative clause bars challenge based on denial of procedural fairness
8. › Environmental Planning and Assessment Act 1979 (NSW), s 101
1. Administrative Law
2. › Judicial review
3. › Jurisdictional facts
4. › Validity of construction certificate
5. › Requirement that certifying authority be 'satisfied'
6. › Whether satisfaction of certifying authority as to consistency is a jurisdictional fact
7. › Environmental Planning and Assessment Regulation 2000 (NSW), reg 145(1)(a)
1. Administrative Law
2. › Procedural fairness
3. › Content of duty
4. › Notification requirements under development control plan
5. › Whether non-compliance with notification DCP constitutes denial of procedural fairness
6. › Environmental Planning and Assessment Act 1979 (NSW), s 79A(2)
1. Costs
2. › Partial success on appeal
3. › Whether costs orders below should be disturbed
4. › Remitter of costs to lower court

Quick Take

Section 101 of the Environmental Planning and Assessment Act 1979 (NSW) does not bar a challenge to the validity of a development consent on the ground of denial of procedural fairness, even after the three-month limitation period has expired, because procedural fairness constitutes an 'inviolable limitation or restraint' within the Hickman principle. Under Regulation 145(1)(a), the only jurisdictional fact is whether the certifying authority was in fact satisfied that the construction certificate plans were not inconsistent with the consent plans; the court will not independently determine whether such inconsistency exists.