Trives v Hornsby Shire Council

(2015) 89 NSWLR 268; [2015] NSWCA 158

NSW Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Jurisdictional fact
4. › Whether characterisation of development as 'complying development' is a jurisdictional fact or part of the function conferred on the decision-maker
5. › Relevance of inconvenience and uncertainty as factors
6. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 85A
1. Environment and Planning
2. › Development control
3. › Complying development
4. › Certificate issued by accredited certifier
5. › Validity of certificate challenged by council
6. › Whether development properly characterised as 'complying development'
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 84, 84A, 85A
1. Statutory Interpretation
2. › Whether characterisation of proposed development as 'complying development' is a jurisdictional fact
3. › Whether 'complying development' a generic label or an operative precondition to exercise of power
4. › Whether reasoning by analogy from development consent procedure permissible
5. › Environmental Planning and Assessment Act 1979 (NSW), Pt 4, Divs 2, 3
1. Constitutional Law
2. › Privative clause
3. › State legislation limiting time for review of decision
4. › Whether limitation effective
5. › Whether limitation removes defining characteristic of Supreme Court
6. › Environmental Planning and Assessment Act 1979 (NSW), s 101
7. › Kirk v Industrial Court of New South Wales [2010] HCA 1

Quick Take

The characterisation of proposed development as 'complying development' under Pt 4, Div 3 of the EP&A Act is not a jurisdictional fact to be determined by a court; it is a matter for the accredited certifier's determination under s 85A(3). Pallas Newco, which treated characterisation as a jurisdictional fact in the context of development consent under Div 2, does not apply to complying development certificates because the characterisation function is central to the certifier's role, not extrinsic to it. Challenges to complying development certificates must proceed on grounds of legal error or unreasonableness rather than de novo determination of whether the development is 'complying development'. The question whether s 101 of the EP&A Act is constitutionally valid in light of Kirk remains open.