___________________________________________________________________The “jurisdictional fact doctrine” in NSW localgovernme...
2tribunals. The doctrine is very similar to the doctrine of ultra vires 3 in its modern formwhich, in the mid-19th century...
3       conclusion of an inquiry (see R v Bolton [(1841) 1 QB 66; 113 ER 1054]). Whereas       an excess of jurisdiction i...
4In Welch v Nash 20 Lord Ellenborough similarly spoke in terms of a misconstructionof the source of jurisdiction:         ...
5In Parisienne Basket Shoes Pty Ltd v Whyte 26 Dixon J (as he then was) pointed outthat:       ... the clear distinction m...
6                                                                 34        is open, if it be negative and wrong, to manda...
7In Parisienne Basket Shoes Pty Ltd v Whyte 43 Dixon J (as he then was) pointed outthat any matter can be made one of “jur...
8A common way of conferring upon an inferior tribunal jurisdiction to, in effect,determine its own jurisdiction (at least ...
9Hetton Bellbird Collieries Ltd 53 Latham CJ, with whom the other members of theHigh Court agreed, said:        Where the ...
10that there were no grounds for saying that the company was unfit or that it had actedin a manner whereby the proper perf...
11              maker’s power once properly engaged;     •        where the legislation evinces a legislative intention th...
12      Section 35(3) [of the Development Act 1993 (SA)] forbids the relevant authority      granting a provisional develo...
13                                              69administrative jurisdictional fact finding,        before stating that t...
14to significantly affect threatened species” involved a question of jurisdictional fact.Spigelman CJ (Mason P and Meagher...
15      "satisfaction" - the construction is often, although not necessarily, against a conclusion      of jurisdictional ...
16     … What is here involved is a question of power. If the pre-condition in cl 32(2) was not     satisfied, then Counci...
17not amount to “absolute prohibitions”. The court applied Strathfield Municipal Councilv Poynting 79 in which Giles JA (H...
18relevantly, the inconvenience that might arise from the matter being classified asjurisdictional (which, according to hi...
19In Schroders Australia Property Management Ltd v Shoalhaven City Council, 87which was not a case on whether or not a par...
20relevant state of satisfaction of consistency with the DFC of the particular locality asspecified in the locality statem...
21        Consent may be granted to the use of a building or part of a building situated within the        Residential Zon...
22      one, requiring demonstration by the appellant of whether construction for a non-      residential use has taken pl...
23the Ordinance to mean “development that results in 2 dwellings (whether attached ordetached) on a single allotment of la...
24and proceeded to dismiss the appeal on the basis that the proposed subdivisionapplication was prohibited development.In ...
25        Further, at [58] the Chief Justice acknowledged that an environmental planning        instrument may require the...
26                                                             105presage jurisdictional fact need not be decided.”       ...
27views subsequently expressed by the NSW Court of Appeal in the Timbarra case.However, the development consent was allege...
28      In the circumstances of this case, it is apparent that the evidence and material before      the council may have ...
29argument that a decision made by a determining authority pursuant to s 112(4)(b)(i)of the EPA Act to "modify" a proposed...
30than 1 metre Australian Height Datum ("AHD") as prescribed by State EnvironmentalPlanning Policy No 62 ("SEPP 62"). In o...
31        involves a jurisdictional fact and, according to the relevant legislation, must be        answered objectively -...
32ordinarily need to be satisfied or fulfilled, having regard to the context of theformulation and the underlying object o...
33       •   Does the fact situation occur or otherwise arise in the context of a duty,           express or implied, that...
THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND ENVIRONMENTAL PLANNING LAW
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THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND ENVIRONMENTAL PLANNING LAW

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First Published: (2006) 12 LGLJ 16 - All Rights Reserved. Disclaimer: The information contained in this publication does not constitute legal advice of any kind. The author Ian Ellis-Jones does not guarantee or warrant the current accuracy, legal correctness or up-to-dateness of the information contained in the publication.

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THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND ENVIRONMENTAL PLANNING LAW

  1. 1. ___________________________________________________________________The “jurisdictional fact doctrine” in NSW localgovernment and environmental planning lawIan Ellis-Jones* First published (2006) 12 LGLJ 16. All rights reserved.___________________________________________________________________ Errors made with respect to jurisdictional matters, including errors made with respect to so-called “jurisdictional facts”, are reviewable for “jurisdictional error”. A jurisdictional fact is some fact or fact situation which must exist in fact as a condition precedent or essential prerequisite for the primary decision maker to exercise its jurisdiction. Over the past 15 years NSW superior courts have increasingly applied the so-called “jurisdictional fact doctrine” in local government and environmental planning law cases. This article discusses a number of important judicial authorities and seeks to identify what are the key elements or indicators of the presence of a jurisdictional fact situation in a particular statutory formulation. They include the interrelated elements of “objectivity” and “essentiality”, the purpose of the formulation in the overall legislative scheme, the inconvenience, if any, that may arise from the fact situation being held to be jurisdictional, whether the fact situation occurs or arises as a matter for consideration or as a matter to be ultimately adjudicated upon by the tribunal of fact, whether the fact situation occurs or arises in the actual formulation of the grant of substantive power to the tribunal of fact to make the ultimate decision on the merits, and whether the fact situation occurs or arises in a formulation requiring the formation by the tribunal of fact of a specified mental state. Ultimately, it gets down to statutory construction and legislative intention, with the reviewing court having the final say, at least on those matters.INTRODUCTIONThe traditional 1 doctrine of jurisdictional error, in its modern form, of which the so-called “jurisdictional fact doctrine” 2 forms part, can be traced from the 17th centurywhen it came to be used to control the activities of inferior courts and statutory* Solicitor of the Supreme Court of New South Wales and the High Court of Australia, SeniorLecturer, Faculty of Law, University of Technology, Sydney, and Consultant, Arraj Lawyers, Sydney.1 There is also a doctrine of “broad” or “extended” jurisdiction error (cf “broad” of “extended” ultravires) pursuant to which (at least in its most fulsome application) all errors of law go to jurisdiction:see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Re Racal CommunicationsLtd [1981] AC 374; O’Reilly v Mackman [1983] 2 AC 237; Craig v South Australia (1995) 184 CLR163.2 Not all jurists accept that there it is a doctrine as such. For example, in Timbarra ProtectionCoalition v Ross Mining NL (1999) 46 NSWLR 55 at … Spigelman CJ (Mason P and Meagher JAconcurring) stated [at 39]: “The academic literature which describes ‘jurisdictional fact’ as some kindof ‘doctrine’ is, in my opinion, misconceived. The appellation ‘jurisdictional fact’ is a convenient way ofexpressing a conclusion - the result of a process of statutory construction.”
  2. 2. 2tribunals. The doctrine is very similar to the doctrine of ultra vires 3 in its modern formwhich, in the mid-19th century, became a means of ensuring that executive andadministrative authorities (particularly local government authorities) acted within theirpowers. One doctrine speaks in terms of “jurisdiction”, the other in terms of “power”.A jurisdictional error, 4 in traditional terms, is of 3 kinds: first, a want (or lack) ofjurisdiction; 5 secondly, an excess of jurisdiction; 6 and thirdly, a wrongful failure orrefusal to exercise jurisdiction. 7 However, as McHugh J pointed out in Public ServiceAssociation of South Australia v Federated Clerks’ Union of Australia, SouthAustralian Branch 8 the phrases “want of jurisdiction” and “excess of jurisdiction” are“not terms of art”. 9 His Honour went on to say that it is not uncommon for superiorcourts to use the phrases interchangeably. 10 Thus, “acting without jurisdiction” mayconnote either that the inferior tribunal had no power or authority at all to embarkupon making a decision ab initio or that, although it had such power or authority, ithad gone further than it ought to have gone.In Baldwin & Francis Ltd v Patents Appeal Tribunal 11 Lord Denning said in obiter: But an excess of jurisdiction in this sense is very different from want of jurisdiction altogether which is, of course determinable at the commencement and not at the3 The grounds of ultra vires and jurisdictional may appear to be “conceptually indistinguishable” butthe distinction between them is not merely terminological. Each ground has a different historical basisand the bulk of the case law in Australia (if no longer in England) continues to treat them asdistinguishable. In addition, judicial review by way of jurisdictional error (particularly in relation todecisions of inferior courts) generally has tended to be more restrained than that carried out pursuantto the doctrine of ultra vires.4 A non-jurisdictional error of law (being an error made within jurisdiction), in traditional terms, is anyother error of law. Under the traditional doctrine of jurisdictional law, a non-jurisdictional error of law isunreviewable unless it appears plainly on the face of the record of the inferior court tribunal. In Craig vSouth Australia (1995) 184 CLR 163 the High Court rejected expansive formulations of the record forthe purposes of certiorari and concluded that the record did not include the transcript of the earlierproceedings, nor the reasons for the decision, unless they were actually incorporated in the court ortribunal’s formal order or decision. See, however, s 69(4) of the Supreme Court Act 1970 (NSW)which expressly states that, for the purposes of error of law on the face of the record, the face of therecord includes “the reasons expressed by the court or tribunal for its ultimate determination”.5 See, for example, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring CoLtd (1953) 88 CLR 100; Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47; Potter v Melbourne andMetropolitan Tramways Board (1957) 98 CLR 337.6 See, for example, R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407.7 See, for example, Public Service Association of South Australia v Federated Clerks’ Union ofAustralia, South Australian Branch (1991) 173 CLR 132; Ex parte Minister for Corrective Services(1993) 9 WAR 534.8 (1991) 173 CLR 132.9 (1991) 173 CLR 132 at 164.10 (1991) 173 CLR 132 at 164.11 [1959] AC 663.
  3. 3. 3 conclusion of an inquiry (see R v Bolton [(1841) 1 QB 66; 113 ER 1054]). Whereas an excess of jurisdiction is determinable in the course of, or at the end of the inquiry. 12In Parisienne Basket Shoes Pty Ltd v Whyte 13 Latham CJ had this to say: It cannot be said that, whenever a court makes an erroneous decision, it acts without jurisdiction. An order made without jurisdiction - as if a court of petty sessions purported to make a decree of divorce - is not an order at all. It is completely void and has no force or effect. 14Lack of jurisdiction can occur where, for example, a tribunal with limited powerpurports to deal with some subject-matter outside that power. In the 1680 case ofTerry v Huntington 15 it was held that a decision tainted by a so-called jurisdictionalerror was void and that an action in trespass could be brought against any personpurportedly acting under the authority of the decision. Hale CB spoke of some of theways in which jurisdiction could be circumscribed: And it is to be considered that special jurisdictions may be circumscribed 1. with respect to the subject matter of their jurisdictions; 2. with respect to place; 3. with respect to persons ... and therefore if they give judgment in a cause arising in another place or betwixt private persons or in other matters all is void. 16In Potter v Melbourne and Metropolitan Tramways Board 17 the High Court (perDixon CJ, Webb, Kitto and Taylor JJ) similarly said: It is evident that the appeal board has a limited power and wherever those limits may be drawn it seems impossible to suppose that it was intended that by its own authority the appeal board should exceed them. 18The appeal board, which had been constituted to hear appeals against “dismissals,fines, deductions from wages, reductions in rank, grade or pay, or otherpunishments”, lacked jurisdiction to hear the appellant’s purported appeal in respectof his re-classification which was found not to be in the nature of a “punishment”. 1912 [1959] AC 663 at 695. Lords Reid and Tucker regarded the terms as synonymous.13 (1938) 59 CLR 369.14 (1938) 59 CLR 369 at 375.15 (1680) Hardres 480; 145 ER 557.16 145 ER 557 at 559. See also Groenvelt v Burwell (1700) 1 Ld Raym 454 at 469; 91 ER 1202 at1212; R v Inhabitants in Glamorganshire (1700) 1 Ld Raym 580; 91 ER 1287 at 1288.17 (1957) 98 CLR 337.1820 (1957) 98 CLR 337 at 343-4.19 (1957) 98 CLR 337 at 344. See also Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47; Ex parteWurth; Re Flanagan (1958) 58 SR (NSW) 51.
  4. 4. 4In Welch v Nash 20 Lord Ellenborough similarly spoke in terms of a misconstructionof the source of jurisdiction: This is a question of jurisdiction ... Increasing the width of one old highway is neither diverting another old highway nor making a new one and the justices cannot make facts by their determination in order to give to themselves jurisdiction, contrary to the truth of the case. 21However, errors of law came to be classified according to whether or not they wentto jurisdiction. In that regard, the reviewing court in judicial review proceedingstraditionally has drawn a distinction between: * unreviewable 22 matters of fact or law which are within the original decision maker’s jurisdiction (commonly referred to as “matters going to the merits” or “matters within jurisdiction”), that is, matters which the tribunal of fact alone is to decide; and * reviewable 23 matters of fact or law which are outside the original decision maker’s jurisdiction (so-called “jurisdictional matters”), that is, matters which have to be established either as a condition precedent for the decision maker to exercise its jurisdiction or which otherwise have to be satisfied in the course of exercising jurisdiction (being, in either case, matters that by their nature are “extrinsic” or “ancillary” to the actual process of consideration, evaluation, assessment and determination of the ultimate matters to be adjudicated upon in the course of decision making).Thus, in the 1668 case of Terry v Huntington 24 Hale CB spoke of the reviewingcourt’s limited role in the following terms: But if they should commit a mistake in a matter that were within their power, that would not be examinable here. 2520 (1807) 8 East 394; 103 ER 394.21 103 ER 394 at 402-3.22 In the absence of some statutory right of appeal or review.23 Irrespective of the existence of some statutory right of appeal or review.24 (1668) Hardres 480.25 (1668) Hardres 480 at 483.
  5. 5. 5In Parisienne Basket Shoes Pty Ltd v Whyte 26 Dixon J (as he then was) pointed outthat: ... the clear distinction must be maintained between want of jurisdiction and the manner of its exercise. Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable: compare Case of the Marshalsea (1612) 10 Co Rep 68b at 76a, 76b; 77 ER 1027. 27The rationale for the distinction between want or lack of jurisdiction and the mannerof its exercise is that if the distinction were not made judicial review for excess ofjurisdiction would be tantamount to administrative review on the merits. 28 Thus, in Rv Bolton 29 Lord Denman stated: The inquiry before us must be limited to this, whether the magistrates had jurisdiction to inquire and determine, supposing the facts alleged in the information to be true ... we must not constitute ourselves into a Court of Appeal where the statute does not make us such. 30Similarly, in R v Wakefield 31 Lord Mansfield spoke in terms of a lack of jurisdictionarising out of a consideration of certain disputed facts: This part of the case depends on the facts, for if the title actually came in question ... then the justices had no jurisdiction. It appears on the affidavits that the title was not in question. 32In R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors andDraughtsmen of Australia 33 Fullagar J pointed out that: ... the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that may be given if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It26 (1938) 59 CLR 369.27 (1938) 59 CLR 369 at 389.28 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 389 per Dixon J.29 (1841) 1 QB 66; 113 ER 1054.30 113 ER 1054 at 1058.31 (1758) 2 Kenny 164; 96 ER 1143.32 96 ER 1143 at 1144.33 (1950) 82 CLR 54.
  6. 6. 6 34 is open, if it be negative and wrong, to mandamus.JUDICIAL REVIEW OF JURISDICTIONAL FACTSErrors made with respect to jurisdictional matters have always been reviewable for“jurisdictional error”. This includes errors made with respect to so-called“jurisdictional facts”. 35 A jurisdictional fact is some fact which has to exist as acondition precedent, or essential prerequisite, for the decision maker to exercise itsjurisdiction. 36 The position was very clearly put by Coleridge J in Bunbury v Fuller: 37 Suppose a judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject matter according as he finds on that point; but this decision must be open to question, and if he has improperly either foreborne or proceeded on the main matter in consequence of an error, on this the Court of Queen’s Bench will issue its mandamus or prohibition to correct his mistake. 38Thus, in Weaver v Price 39 the question whether certain land was within a particularparish was held to be a jurisdictional fact. A wrong decision on that matter wouldresult in the invalidity of the rate levy. Similarly, the question of whether or not aperson was an occupier of land was also held to be a jurisdictional fact in Bristol vWaite. 40 In White and Collins v Minister of Health 41 a local authority was empoweredby statute to compulsorily acquire land provided it did not form part of any “park,garden or pleasure ground”. A purported exercise of the power was struck down ashaving been made without jurisdiction on the basis that the subject land did form partof a park. 4234 (1950) 82 CLR 54 at 91. In this case it was suggested (at 92) that more weight ought to beaccorded to a decision of a tribunal where the collateral issue determinative of jurisdiction dependsfor its answer upon a finding of fact (as opposed to some conclusion of law).35 See, generally, L Pearson, “Jurisdictional Fact: A Dilemma for the Courts” (2000) 17 EPLJ 453; MAronson, “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17.36 Professor Wade asserts that the distinction between jurisdictional facts and facts going to themerits is necessary because a tribunal has the power to decide facts correctly or incorrectly within thejurisdiction entrusted to it: see H W R Wade, Administrative Law (4th ed, 1977), 237-8.37 (1853) 9 Ex 111; 156 ER 47.38 (1853) 9 Ex 111 at 140-1.39 (1832) 3 B & Ad 409; 110 ER 147.40 (1834) 1 Ad & El 264; 110 ER 207.41 [1939] 2 KB 838.42 See also Hall v Manchester Corporation (1915) 84 L J Ch 732; Permanent Trustee Co of NSW Ltdv Campbelltown Municipal Council (1960) 105 CLR 401.
  7. 7. 7In Parisienne Basket Shoes Pty Ltd v Whyte 43 Dixon J (as he then was) pointed outthat any matter can be made one of “jurisdictional fact” if that be the intention of thelegislature: It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed. 44Where the tribunal of fact is vested with a jurisdiction which includes a jurisdiction todetermine whether, in effect, there is jurisdiction (in the sense of authority to act) in aparticular case, that is, a power to decide not only matters going to the merits butalso jurisdictional matters, the position can be more complex. In R v Commissionersfor Special Purposes of the Income Tax 45 Lord Esher said: Where an inferior court or tribunal or body which has to exercise the power of deciding facts is first established by Act of Parliament the legislature has to consider what powers it will give that tribunal or body. It may in effect say that if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist to proceed further or do something more. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends. 4643 (1938) 59 CLR 369.44 (1938) 59 CLR 369 at 391. The approach of Dixon J (in which his Honour appeared to allude to theexistence of a possible presumption against a factual reference being a jurisdictional fact whereinconvenience would consequentially ensue) has been doubted by Handley JA in the NSW Court ofAppeal decision in The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA376: see [14] per Handley JA, cf [134] per Basten JA.45 (1888) 21 QBD 313 at 319.46 (1888) 21 QBD 313 at 319. See also Ex parte Silk; Re Chapman Engine Distributors Pty Ltd (1939)39 SR (NSW) 42 at 66; 56 WN 13 at 14 per Jordan CJ; Ex parte Redgrave; Re Bennett (1945) 46 SR(NSW) 122 at 125 per Jordan CJ; R v Ludlow; Ex parte Barnsley Corporation [1947] 1 KB 634; Ex
  8. 8. 8A common way of conferring upon an inferior tribunal jurisdiction to, in effect,determine its own jurisdiction (at least with respect to preliminary matters) is toprovide, in the empowering legislation, that the exercise of jurisdiction is conditionalupon the tribunal being of a certain mental state (that is, being “of the opinion” or“satisfied” that a certain state of affairs exists). In a sense, the mental state is aparticular kind of jurisdictional fact, 47 and, despite what Lord Esher said about itbeing erroneous to say that a tribunal cannot give itself jurisdiction (even wrongly) insuch circumstances, the courts have displayed a preparedness to intervene inappropriate cases. For example, in Ex parte Wurth; Re Tully 48 Street CJ said: It would be an extraordinary interpretation to put upon the section that the Board was to have unfettered and unchallenged power to define the extent of its own jurisdiction, and to give any decision or embark upon any proceeding without any liability to correction. It is unlikely that the legislature would have conferred upon this tribunal, two of whose members might have no knowledge of law whatever, the right to determine questions of law and by such determination to extend indefinitely the limits of the Board’s jurisdiction. 49In R v Shoreditch Assessment Committee 50 Farwell LJ had this to say about thematter: Subjection in this respect to the ... [c]ourt is a necessary and inseparable incident to all tribunals of limited jurisdiction; for it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure - such a tribunal would be autocratic, not limited - and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non- existence of its own jurisdiction is founded on law or fact. 51Accordingly, if, for example, the existence of jurisdiction or the exercise ofjurisdiction (or both) is conditional upon the existence of the formation of a subjectiveopinion, if the opinion actually formed is incorrectly based in law, then the necessaryopinion does not exist. 52 In the landmark and oft-cited case of R v Connell; Ex parteparte Moss; Re Board of Fire Commissioners of New South Wales (1961) 61 SR (NSW) 597 perKinsella J; cf Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-2.47 See Craig, Administrative Law, 3rd ed (1994) at 368-370. See also Minister for Immigration andEthnic Affairs v Teo (1995) 57 FCR 194, 198; Australian Heritage Commission v Mount Isa Mines Ltd(1997) 187 CLR 297; and Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at [42]per Spigelman CJ.48 (1954) 55 SR (NSW) 47.49 (1954) 55 SR (NSW) 47 at 53.50 [1910] 2 KB 859.51 [1910] 2 KB 859 at 880.52 A reference to subjective criteria (“opinion”, “satisfied”, etc) is usually one directed to the ultimatequestion to be decided rather than to collateral or threshold issues: see, for example, R v Connell; Ex
  9. 9. 9Hetton Bellbird Collieries Ltd 53 Latham CJ, with whom the other members of theHigh Court agreed, said: Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. 54Further: If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. 55In other words, a superior court, in judicial review proceedings, will enquire into thereasonableness of the tribunal’s opinion (in the Wednesbury sense). 56 In addition, atribunal’s decision on such a matter can still be reviewed for jurisdictional errorwhere the tribunal either rejects evidence, or makes a decision unsupported by theevidence, in such a way as to indicate that the tribunal misunderstood the test it hadto apply in determining matters going to jurisdiction. 57 For example, in R v AustralianStevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd 58 theboard was empowered to cancel or suspend the registration of an employer if afteran inquiry it was satisfied that the employer was “unfit to continue to be registered asan employer” or had “acted in a manner whereby the proper performance ofstevedoring operations ha[d] been interfered with”. The High Court (per Dixon CJ,Williams, Webb and Fullagar JJ, Taylor J delivering a concurring judgment) foundparte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407.53 (1944) 69 CLR 407.54 (1944) 69 CLR 407 at 430.55 (1944) 69 CLR 407 at 432 per Latham CJ. The grounds on which such judicial review may bebased are as set out in the grounds on which such review must be based are as set out by Gibbs J inBuck v Bavone (1976) 135 CLR 110, 118-119 and subsequent authorities. (See Minister forImmigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 257-277; Australian HeritageCommission Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 301, 303; Bruce v Cole(1998) 45 NSWLR, 184-187. See also Parramatta City Council v Pestell (1972) 128 CLR 305 at 323.)56 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Seealso Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 per SpigelmanCJ.57 The rejection of evidence, or the reaching of a conclusion unsupported by the evidence, is not perse an error of law: see Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. Nevertheless,inadequacy of material to support the formation of some necessary “opinion” may support aninference that the tribunal is applying the wrong test or is not in reality “satisfied” of the requisitematters R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Ltd (1953) 88CLR 100 at 120.58 (1953) 88 CLR 100.
  10. 10. 10that there were no grounds for saying that the company was unfit or that it had actedin a manner whereby the proper performance of stevedoring operations had beeninterfered with. 59 In short, the power to cancel or suspend had not arisen “becausethe conditions for its exercise [did] not exist in law and in fact”.60Until fairly recent years, the concepts and language of jurisdictional error and, moresspecifically, jurisdictional fact were infrequently invoked in a local governmentcontext. There, were, of course, some exceptions. 61 However, over the past 15years the NSW Land and Environment Court and the NSW Court of Appeal haveincreasingly applied the doctrine of jurisdictional error and the jurisdictional factconcept in the contexts of local government and environmental planning law,particularly where one or more of the following factors (which are not intended to beexhaustive) are involved: • where the administrative decision making process involves a number of different steps or stages before the final decision is made; • where the decision maker must decide, as a preliminary or threshold question, whether there is an application that is capable of lawful determination; • where the decision maker must decide whether primary facts, fully found, come within the ambit of a statutory description (particularly where facts are involved that are an essential preliminary to the decision making process and not otherwise the facts to be adjudicated in terms of the ultimate decision or the “merit” issues to be weighed in the balance in considering the matter and making the ultimate decision on the “merits”); • where the characterization or categorization of a particular development in concerned, and whether the exercise of characterisation or categorisation requires consideration of matters relevant to the exercise of the decision59 (1953) 88 CLR 100 at 120.60 (1953) 88 CLR 100 at 120. Similarly, in Byron Shire Businesses for the Future Inc v Byron Council& Anor (1994) 84 LGERA 434 it was held that where there is only one conclusion reasonably open tothe tribunal on the facts and a contrary opinion has been reached as to some matter in the nature of aprecondition for the exercise of a power, the exercise of the power is null and void. (See also Hope vBathurst City Council (1980) 144 CLR 1.)61 See, for example, Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council (1960)105 CLR 401).
  11. 11. 11 maker’s power once properly engaged; • where the legislation evinces a legislative intention that the absence or presence of some fact or fact situation will invalidate action under the statute.THE CORRECT APPROACHThe definitively authoritative statement of what is meant by the expression“jurisdictional fact” is contained in the joint judgment of the High Court in Corporationof the City of Enfield v Development Assessment Commission: 62 The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. 63In that case, the company Collex Waste Management Services Pty Ltd had appliedto the South Australian Development Assessment Commission for consent to makecertain alterations and additions to an existing liquid waste treatment plant within theEnfield local government area. The Commission, being the relevant consentauthority, was duty bound to consider the development application against the termsof the relevantly applicable development plan. Under that plan the proposeddevelopment was for the purpose of “special industry”, and such development wasprohibited by the plan. The proposed development would also constitute a “non-complying development”. This meant that no consent could issue unless certainconcurrences were also given, including one from the local council, EnfieldCorporation. 64 In addition, pubic notice was also required. However, the Commissiontreated the development as “general industry”, which required neither public noticenor the concurrence of the local council.In a joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ, the High Courtstated:62 (2000) 199 CLR 135.63 (2000) 199 CLR 135 at 148 [28]64 The relevant statutory provision was in s 35(3) of the Development Act 1993 (SA) which stated thata development that was of the kind described as non-complying “must not be granted a consentunless … .”
  12. 12. 12 Section 35(3) [of the Development Act 1993 (SA)] forbids the relevant authority granting a provisional development plan consent to a "non-complying" development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a "non-complying" development, which turned upon the application of the criterion of "special industry", was a condition upon the existence of which there operated the obligation that the Commission not grant consent. 65In other words, the question whether or not the proposed development was “non-complying development” was a question of jurisdictional fact, the relevant indicatorsbeing, firstly, the prohibition itself of the development, and secondly, the expressstatutory provision stating that the consent authority “must not grant” consent exceptwhere otherwise allowed by the legislation. 66 The answer to the jurisdictional factquestion did not depend upon the opinion of the consent authority or any otherperson or body involved in the decision making process. It was not a question ofopinion at all. Indeed, the reviewing court, exercising its inherent supervisoryjurisdiction in judicial review proceedings, 67 was duty bound to decide the matter foritself. In the opinion of the court: The result is that the Full Court [of the Supreme Court of South Australia] erred in holding that Debelle J [the primary judge] was obliged to determine the action before him, not by application of the law to the evidence, but from a standpoint that, whilst the Supreme Court should "reserve the right to itself to inquire into the relevant facts and to decide the jurisdictional facts", it would defer "in grey areas of uncertainty to the practical judgment of the planning authority" and that what had to be shown was "a serious departure (in planning terms) from the requirements of the [Development] Act and Regulations". It should be added that, contrary to the approach taken by the Full Court, in whatever form the proceeding in the Supreme Court had been cast, it would have been necessary for Debelle J to determine the "jurisdictional fact" issue upon the evidence before the Supreme Court. Accordingly, the matter will have to be returned to the Full Court for determination of the outstanding issues on the appeal from Debelle J to that Court. 68Their Honours discussed the United States concept of judicial deference to65 (2000) 199 CLR 135 at 148 [28], original emphasis.66 See Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 717 per Spigelman CJ.67 See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-1 where Mason J(as he then was) pointed out: “The limited role of a court reviewing the exercise of an administrativediscretion must constantly be borne in mind. It is not the function of the court to substitute its owndecision for that of the administrator by exercising a discretion which the legislature has vested in theadministrator. Its role is to set limits on the exercise of the discretion, and a decision made withinthose boundaries cannot be impugned … .”68 (2000) 199 CLR 135 at 151 [38], fns omitted.
  13. 13. 13 69administrative jurisdictional fact finding, before stating that there was no place forany such deference here with respect to the determination of jurisdictional facts by asuperior court (in this case, the Supreme Court of South Australia): The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning. … Where the question is whether the tribunal acted within jurisdiction, it must be for the court to determine independently for itself whether that is the case. 70Gaudron J agreed with the majority, making it clear that the matter was ultimatelyone of “accountability”: The other factor that informs comprehensive statutory schemes for the review of executive and administrative decisions is what is sometimes referred to as "accountability". In this context, "accountability" can be taken to refer to the need for the executive government and administrative bodies to comply with the law and, in particular, to observe relevant limitations on the exercise of their powers. Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. 71In a previous NSW Court of Appeal decision, Timbarra Protection Coalition v RossMining NL, 72 the court, in judicial review proceedings, was called upon to scrutinizethe lawfulness of a decision made by a local council to grant development consentpursuant to the Environmental Planning and Assessment Act 1979 (NSW) (the “EPAAct”) in circumstances where it was alleged that a species impact statement -required as a matter of law where, relevantly, the development was “likely tosignificantly affect threatened species” - ought to have been so submitted but hadnot. The court held that the issue of whether the proposed development was “likely69 The US approach is known as the Chevron doctrine, after Chevron USA Inc v Natural ResourcesDefense Council, Inc 467 US 837 (1984).70 (2000) 199 CLR 135 at 154-5 [47-8], fns omitted.71 (2000) 199 CLR 135 at 157 [55-6], fns omitted.72 (1999) 46 NSWLR 55; 102 LGERA 52.
  14. 14. 14to significantly affect threatened species” involved a question of jurisdictional fact.Spigelman CJ (Mason P and Meagher JA concurring) stated: The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See eg Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (“objectivity”) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (“essentiality”). … “Objectivity” and “essentiality” are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of “essentiality” will often suggest “objectivity”. Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction. Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non- existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. Where the process of construction leads to the conclusion that Parliament intended that the primary decision maker could authoritatively determine the existence or non- existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a Court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts. 73What about the position where, as discussed earlier, there is a subjective grant ofjurisdiction, that is, where the statute provides that the exercise of jurisdiction is dependentupon the formation by the decision maker of a certain “opinion” or “belief” or the decisionmaker being “satisfied” that a certain state of affairs exists? Spigelman CJ had this to sayabout the matter: Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief",73 (1999) 46 NSWLR 55 at 63-4 [37-41].
  15. 15. 15 "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. … Where such words do not appear, the construction is more difficult. 74The Chief Justice also gave some pointers as to how best to respond to what arepotentially jurisdictional fact situations but which otherwise have the character of“matters for consideration” or matters to be taken into account in the considering anddeciding a particular matter: The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions. 75However, each case turns on the wording of the particular statutory formulation.Thus, in Franklins Limited v Penrith City Council 76 the NSW Court of Appeal had toconsider cl 32(2) of Penrith Local Environmental Plan No 231 which permitted aperson, with the consent of the council, to carry out development for the purposes ofa wholesale and retail warehouse on land to which the clause applied “but only if”the council was “satisfied” that not less than 60 percent of the goods sold from theland would be resold by retail after being removed from the land. At [23] Stein JA(Powell and Giles JJA agreeing) noted that the above mentioned provision had theeffect that the subject development was prohibited unless the Council formed theopinion required by the subclause. At [28] his Honour stated:74 (1999) 46 NSWLR 55 at 64 [42]. It was held in Minister for Immigration and Ethnic Affairs v Eshetu(1999) 162 ALR 577 that a jurisdictional fact could include an opinion or state of satisfaction.However, as Spigelman CJ pointed out in Timbarra [at 46 NSWLR 55 at 66 [55]], “every case turnson the particular statutory regime.” For example, in Australian Heritage Commission v Mount IsaMines Ltd (1997) 187 CLR 297, the High Court rejected a submission that the decision whether or notto enter a place on the Register of the National Estate under s 28 of the Australian HeritageCommission Act 1975 (Cth) involved a question of jurisdictional fact. In that case, the exercise of thestatutory power was predicated upon whether the Commission "considered" that a place should beregistered. That required the assessment of a wide range of matters of considerable complexityinvolving the formation of value judgments. As Spigelman CJ pointed out in Woolworths Ltd v PallasNewco Pty Ltd (2004) 61 NSWLR 707 at 719 [58], “[s]uch a decision-making process is unlikely toinvolve a jurisdictional fact”.75 (1999) 46 NSWLR 55 at 65 [44], emphasis added.76 [1999] NSWCA 134.
  16. 16. 16 … What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an “essential condition” or preliminary to the exercise of the power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. …Nevertheless, the legal position can vary where there is available, either in theenabling statute or in some other statute or statutory instrument, a statutory facilitythat would operate to alleviate or obviate the need for strict compliance with whatmight otherwise involve a jurisdictional fact situation. In the Franklins case the issuebefore the reviewing court was simply whether the necessary statutory preconditionhad been satisfied. However, in Wingecarribee Shire Council v Pancho PropertiesPty Ltd 77 the NSW Court of Appeal was called upon to determine whether 2provisions of Wingecarribee Local Environmental Plan 1989 (viz cl 13(3) and (4))were “development standards” within the meaning of the EPA Act. (If they weredevelopment standards, then the person seeking to carry out the development couldlodge with the consent authority a written objection under State EnvironmentalPlanning Policy No 1 - Development Standards (“SEPP 1”) that compliance withthose development standards was unreasonable or unnecessary in thecircumstances of the case, specifying the grounds of that objection.)The first provision permitted the erection, with consent, of a dwelling-house “but onlyif” the land had an area of not less than 40 hectares. The second provision providedthat not more than 2 additional dwelling-houses could, with consent, be erected oncertain land having an area not less than 40 hectares if the council was “satisfied” asto certain specified matters. Giles JA (Heydon JA and Young CJ in Eq agreeing)concluded that the 2 provisions were development standards amenable to objectionunder SEPP 1. 78 In the view of the court, although the provisions were worded inprohibitory terms they were regulatory of otherwise permitted development and did77 (2001) 117 LGERA 104.78 This had also been the view of the primary judge (Talbot J): see Pancho Properties Pty Ltd vWingecarribee Shire Council (1999) 110 LGERA 352. The decision of Lloyd J in Dixon vWingecarribee Shire Council (1999) 103 LGERA 103, in which his Honour held that the very sameprovision was not a development standard, must now be considered to be wrong.
  17. 17. 17not amount to “absolute prohibitions”. The court applied Strathfield Municipal Councilv Poynting 79 in which Giles JA (Heydon JA and Young JA in Eq agreeing) said: If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. … 80In Gales Holdings Pty Ltd v Tweed Shire Council 81 Lloyd J of the NSW Land andEnvironment Court was called upon to determine whether the expression “activity” ins 110 of the EPA Act involved a question of jurisdictional fact. (If an act, matter orthing is an “activity”, then the provisions contained in Part 5, as opposed to Part 4, ofthe Act apply or at least potentially apply.) Applying the principles enunciated bySpigelman CJ in Timbarra, 82 his Honour held that the question whether an act,matter or thing was an “activity” was jurisdictional: The determination of whether an act, matter or thing is an "activity" in turn determines which regulatory procedure applies. I accept this as being a threshold question, not expressed to be dependent upon an opinion but purely a question of objective fact and a preliminary to the exercise of the decision-making powers and duties rather than a question arising in the conduct of the decision-making process itself. The absurd consequences which would follow in the event of a contrary conclusion … confirm the view to which I have come. 83In coming to his conclusion Lloyd J had regard not only to such matters as“objectivity” and “essentiality” (cf Timbarra) but also certain non-textual matters,79 (2001) 116 LGERA 319. In Poynting the court determined that a provision in a planning schemeordinance, which stated that a single dwelling as well as certain other specified forms of residentialdevelopment “must not be erected” on certain land having an area of less than a certain specifiedamount or a width of less than a certain specified amount, was not a prohibition but a developmentstandard amenable to objection under SEPP 1.80 (2001) 116 LGERA 319 at [98]. See also Woollahra Municipal Council v Carr (1987) 62 LGRA 263,Kruf v Warringah Shire Council (LEC, Holland J, 15 December 1988, unreported), Quinn O’HanlonArchitects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114, North Sydney MunicipalCouncil v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222, Bell v Shellharbour Municipal Council(1993) 78 LGERA 429, Scott Revay & Unn v Warringah Council (1995) 88 LGERA 1, Dixon vWingecarribee Shire Council (1999) 103 LGERA 103, Bowen v Willoughby City Council (2000) 108LGERA 149, Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318, Tobin vShoalhaven City Council (2001) 113 LGERA 350, Lowy v Land & Environment Court of NSW (2002)123 LGERA 179, and Georgakis v North Sydney Council (2004) 140 LGERA 379.81 (1999) 110 LGERA 235.82 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64-66; 102 LGERA 52at 61-63 per Spigelman CJ.83 (1999) 110 LGERA 235 at 247.
  18. 18. 18relevantly, the inconvenience that might arise from the matter being classified asjurisdictional (which, according to his Honour, was not critical) as well as the purposeof the definition in the overall legislative scheme (a matter of much moreimportance).In Donnelly v Delta Gold Pty Ltd 84 Bignold J of the NSW Land and EnvironmentCourt was called upon to determine whether the provisions of s 58(6) of theProtection of the Environment Operations Act 1997 (NSW) involved a question ofjurisdictional fact. The provision stated that if the variation of a licence would have acertain specified effect, and the proposed variation had not been the subject ofenvironmental assessment and public consultation under the EPA Act, then theappropriate regulatory authority was to invite and consider public submissions beforeit varied the licence under s 58(1) of the first mentioned Act. His Honour held: Section 58(6) in its statutory context exerts an altogether separate function, namely that of imposing a duty, if certain facts exist (being the relevant factual references contained in pars (a) and (b)), upon the regulatory authority to invite and to consider public submissions "before it varies the licence". This duty so formulated is clearly a matter that is "preliminary or ancillary to" the exercise of the statutory power of variation that is conferred by s 58(1). In my judgment, it is clear that the legislative intention is that where the factual reference is engaged in fact, the variation power is not to be exercised without the regulatory authority first inviting and then considering public submissions. This satisfies the "essentiality" element identified in Chief Justices judgment in Timbarra. It is but a short and obvious step in the reasoning process, to also infer that the legislative intention is that the duty is enlivened where the requisite facts exist in fact, rather than where the regulatory authority is of the opinion, or believes, that they exist. (In this respect it is, of course, significant that the factual reference is not propounded by reference to the opinion held by the regulatory authority.) This satisfies the "objectivity" element identified in the Chief Justices judgment in Timbarra. 85Accordingly, his Honour held that the question whether a licence variation wouldhave the specified effect was a question concerning a jurisdictional fact “which thisCourt must determine for itself, on the basis of all the relevant evidence”. 8684 (2001) 113 LGERA 34.85 (2001) 113 LGERA 34 at 50-1.86 (2001) 113 LGERA 34 at 53.
  19. 19. 19In Schroders Australia Property Management Ltd v Shoalhaven City Council, 87which was not a case on whether or not a particular provision was amenable toobjection under SEPP 1, the NSW Court of Appeal was called upon to consider theconstruction of cl 9(3) of Shoalhaven Local Environment Plan 1985 which providedthat the council shall not grant consent to the carrying out of development on or ofland to which this plan applied unless the Council was of the opinion that thecarrying out of the development was consistent with the objectives of the zone withinwhich the development is proposed to be carried out. Ipp AJA (Spigelman CJ andSheller JA agreeing) stated: Part of the site of the development was zoned 3(g) under the LEP. Hence, it was a condition precedent to a valid grant of consent that the Council form an opinion that the development was consistent with the objectives of the 3(g) zone. A failure to form such an opinion would result in the grant being invalid: Franklins Limited v Penrith City Council [1999] NSWCA 134. 88In Centro Properties Limited v Warringah Council, 89 a decision of Pain J of the NSWLand and Environment Court, the court, in judicial review proceedings, was calledupon to determine whether a development consent that had been granted by thelocal council for construction of a bulky goods outlet, shops, restaurants,conservation of bushland and associated parking was valid. Under the relevantlyapplicable environmental planning instrument, Warringah Local Environmental Plan2000, which embodied a system of planning known as “locality based planning”, landthe subject of the instrument was divided into certain “localities” (as opposed tozones), each with its own detailed “locality statement”. Basically, all development,other than “exempt development” and “prohibited development”, was permissiblewith consent provided, before granting consent, the consent authority was “satisfied”that the development was “consistent” with various specified matters including thecontent of a section of the locality statement for the particular locality entitled“Desired Future Character” (DFC). The applicant in the proceedings before thecourt alleged that the council had, among other things, wrongly assumed to itselfjurisdiction to grant consent to the development application in circumstances wherethe condition precedents to the existence of that jurisdiction (viz the reaching of the87 [2001] NSWCA 74.88 [2001] NSWCA 74 at [7].89 (2003) 128 LGERA 17.
  20. 20. 20relevant state of satisfaction of consistency with the DFC of the particular locality asspecified in the locality statement for that locality, as well as the fact of consistencywith that DFC) had not been fulfilled. 90Her Honour proceeded to hold that the reaching of the relevant state of satisfactionof consistency with the DFC of the particular locality as specified in the localitystatement for that locality did involve a question of jurisdictional fact: The requirement under cl 12(3)(b) is that, for Category Two development, the Council must be satisfied that the development is consistent with the DFC before granting development consent. On the basis of [Franklins Limited v Penrith City Council [1999] NSWCA 134 and Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74], both of which also consider wording based on the need to be satisfied with a certain matter before a council can grant development consent, this provision clearly contains a condition precedent to the exercise of the Councils power to grant development consent which must be satisfied by the Council before consent can be granted. 91Her Honour also held that the fact of consistency with the DFC also involved aquestion of jurisdictional fact: While the wording of cl 20(1) does not include the words "the consent authority must be satisfied" as in cl 12(3)(b), in the scheme of this LEP I consider cl 20(1) is also a condition precedent which must be satisfied by the Council before development consent can be granted. 92In Gorczynski v Perera, 93 a decision of the NSW Court of Appeal, the court hadbefore it an appeal in which the primary judge (Cowdroy J, of the NSW Land andEnvironment Court) had to consider cl 23(6) of the Leichhardt Local EnvironmentalPlan 2000 which, relevantly, was follows:90 See cll 12(3)(a) and (b) and 20(1) of Warringah Local Environmental Plan 2000. Clause 12(3)(a)required the consent authority to “consider” the DFC described in the relevant locality statement.Clause 12(3)(b) provided that the consent ”must be satisfied” that the development was “consistent”with the DFC of the locality. Clause 20(1) provided that consent may be granted to developmentdespite non-compliance with one or more otherwise relevantly applicable development standards“provided the resulting development [was] consistent” with the certain specified matters including theDFC locality.91 (2003) 128 LGERA 17 at 36 [74].92 (2003) 128 LGERA 17 at 37 [81], original emphasis.93 (2004) 132 LGERA 341.
  21. 21. 21 Consent may be granted to the use of a building or part of a building situated within the Residential Zone for any use allowed only with development consent in the Business Zone, and the alteration of the building so that it can be so used, if: (a) the whole or part of the building was constructed for a non-residential use, and (b) the building is capable of being substantially retained, which means the building must be structurally capable of conversion while meeting building, health, amenity and other environmental planning requirements, without the need for the replacement of most of the structure, and (c) the consent authority is satisfied that the amenity of the locality will not be adversely affected.Essentially, the primary judge was satisfied that paragraphs (a) and (b) of cl 23(6) ofthe LEP were not jurisdictional facts prerequisite to the grant of consent but “mattersfor consideration” about which Council was merely required to be subjectivelysatisfied (but, nevertheless, “reasonably” satisfied, as well, in the Wednesbury 94sense). The Court of Appeal (per Santow JA, Meagher and Ipp JJA agreeing) didnot find it necessary to determine whether paragraphs (b) and (c) of cl 23(6) involvedquestions of jurisdictional fact as there was no live issue in relation to those matters,but was otherwise satisfied that the matter the subject of paragraph (a) did involve aquestion of jurisdictional fact. (Based on the preponderance of judicial authoritydiscussed in this article the “better” view would appear to be that paragraph (b) alsoinvolves a question of jurisdictional fact. As for paragraph (c), the matter the subjectof that paragraph arguably does not involve a question of jurisdictional fact, but if itdoes, the required mental state of “satisfaction” is a particular kind of jurisdictionalabout which the consent authority is merely required to be subjectively satisfiedaccording to the Wednesbury unreasonableness standard.)One interesting matter that comes out of Gorczynski relates to the burden of proof inrelation to the matter of the proof of jurisdictional facts. Santow JA had this to sayabout the matter: … I agree that the burden of proof falls upon the respondent to demonstrate satisfaction. The very nature of a jurisdictional fact is that if the pre-condition be not satisfied, then the jurisdiction of council to grant the development consent would be absent. Moreover, I consider that the pre-condition here in question is an objective94 See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
  22. 22. 22 one, requiring demonstration by the appellant of whether construction for a non- residential use has taken place. That entails also determining when that must have taken place in order to satisfy s 23(6)(a). 95In Woolworths Ltd v Pallas Newco Pty Ltd, 96 another decision of the NSW Court ofAppeal, the court was called upon to hear an appeal where the legal issue waswhether the particular use proposed by the appellant was a "drive-in take-awayestablishment", in which case it was permissible with consent, otherwise the usewas prohibited (as it had not been suggested that the proposed development couldfall within any other classification of permissible use). The court (per Spigelman CJ,Mason P, Handley and Sheller JJA and Cripps AJA agreeing) held that, taking intoaccount the legislative purpose and statutory context of Parts 3 and 4 of the EPAAct, the characterisation of the use nominated in a development application aspermissible with consent under the terms of the applicable environmental planninginstrument involved a question of jurisdictional fact which the court, in judicial reviewproceedings, must determine for itself. The court’s previous decision in Londish wasnot followed. 97In Issa v Burwood Council, 98 another decision of the NSW Court of Appeal, the courtwas called upon to hear an appeal where the legal issue was whether or not aproposed subdivision was permissible or prohibited under the relevantenvironmental planning instrument. In particular, the issue on appeal dependedupon the proper meaning of the word “allotment” where it appeared in the definitionof “dual occupancy development” in cll 4 and 78Q of the Burwood Planning SchemeOrdinance. The expression “dual occupancy development” was defined in cl 4(1) of95 (2004) 132 LGERA 341 at [56].96 (2004) 61 NSWLR 707; 136 LGERA 288.97 See also The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376,another decision of the NSW Court of Appeal that also involved issues of characterization orcategorization and the question whether those issues involved jurisdictional facts. Handley JA (at[14]) stated that the analysis of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR369 at 391 (in which his Honour alluded to the existence of a presumption against a factual referencein a statutory formulation being construed as a jurisdictional fact where inconvenience would arisefrom it being so classified), which was cited with approval (at [134]; see also [128]) by Basten JA (atleast as regards statutory decision-making by inferior courts, as opposed to administrative tribunals),was confined to judicial decisions and was not reflected in more recent landmark cases such asEnfield City and Pallas Newco. His Honour (at [14]) also disagreed with Basten JA who opined (at[134]) that there was also no scope for a weaker presumption to the same effect on the basis that thelocal council was a representative body (cf M Aronson, “The Resurgence of Jurisdictional Facts”(2001) 12 PLR 17; Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed,2004) at 231-2).98 (2005) 137 LGERA 221.
  23. 23. 23the Ordinance to mean “development that results in 2 dwellings (whether attached ordetached) on a single allotment of land”. By virtue of cl 78Q of the Ordinanceconsent could not be granted for a subdivision (including a strata subdivision) of anallotment within the subject zone that created separate allotments for each of thetwo dwellings resulting from a dual occupancy development. In the case before thecourt, the subject land comprised 2 Torrens title lots and it was proposed that theproposed dual occupancy development straddle the internal boundary between the 2lots. The appellant thus contended, first, that cl 78Q had no application in this case,arguing that the 2 dwellings did not result from a “dual occupancy development” asdefined in cl 4(1), because they did not result in 2 dwellings on a “single allotment ofland” and, secondly, that cl 78Q did not operate to prevent subdivision as thesubdivision proposed did not involve the subdivision of a single allotment of land butonly the re-subdivision of 2 existing allotments. However, the council submitted thatthe word “allotment” where used in the statutory provisions did not have the samemeaning as “lot” but bore its ordinary, non-technical meaning in the sense of being adistinct or identifiable area of land. The primary judge (Pain J, of the NSW Land andEnvironment Court) agreed with the council’s submission, the result being that theproposed subdivision was held to be prohibited.The court (per Pearlman AJA, Mason P and Tobias JA agreeing) first noted that thequestion whether an expression (in this case, the word “allotment”) is used in anysense other than that which it has in ordinary speech is a question of law, 99 beforegoing on to note that in Woolworths Ltd v Pallas Newco Pty Ltd the court had heldthat classification of a development as permissible with consent or prohibitedinvolved the determination of a jurisdictional fact. Accordingly, the court had thejurisdiction to judicially review the decision of the primary judge. Ultimately, thecourt, after considering a line of authority in the Land and Environment Court on themeaning of the word “allotment”, 100 agreed with the view of the primary judge on themeaning of the word “allotment” (viz that it was not synonymous with the word “lot”)99 See Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR 389 at 397. See also NSWAssociated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509.100 The cases cited by the court were Personal Design Projects Pty Ltd v Hornsby Shire Council[1991] NSWLEC 34, S & I Investments Pty Ltd v Pittwater Municipal Council [1993] NSWLEC 166and Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94; cf Ku-ring-gai MunicipalCouncil v Kuttner (1980) 41 LGERA 1.
  24. 24. 24and proceeded to dismiss the appeal on the basis that the proposed subdivisionapplication was prohibited development.In Lesnewski v Mosman Municipal Council, 101 another decision of the NSW Court ofAppeal, the appellant challenged the validity of a development consent granted bythe council for alterations and additions to an existing dwelling-house. The thrust ofthe appellants argument was that it had been the function of the court below, 102 injudicial review proceedings, to determine for itself whether the design andconstruction of the building as depicted in the plans and specifications furnished tothe certifying authority for the purpose of the issue of a construction certificate were“not inconsistent” with the development consent (that being a requirement of therelevantly applicable legislation). In other words, it was asserted that lack ofinconsistency was a jurisdictional fact which was required to be determinedobjectively before the Council (or its delegate) was empowered to issue aconstruction certificate. The relevant provision was cl 145(1)(a) of theEnvironmental Planning and Assessment Regulation 2000 (NSW) which providedthat a certifying authority must not issue a construction certificate for building workunless it is “satisfied” of certain specified matters including, relevantly, that thedesign and construction of the building (as depicted in the plans and specificationsfurnished to the certifying authority for the purpose of the issue of a constructioncertificate) are not inconsistent with the development consent.Tobias JA (Hodgson and Ipp JJA agreeing) said: Although in Woolworths [Ltd v Pallas Newco Pty Ltd] the Chief Justice observed (at [49]) that a "... factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively", his Honour also recognised (at [56]) that where issues of fact and degree arise, it will often be the case that these are matters which a decision maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than error going to jurisdiction.101 (2005) 138 LGERA 207.102 The NSW Land and Environment Court.
  25. 25. 25 Further, at [58] the Chief Justice acknowledged that an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments which were unlikely to involve a jurisdictional fact. At [60] his Honour exemplified the number of situations that involved matters of judgment which had been held to be jurisdictional. But none of them involved a requirement that the decision maker be "satisfied" as to the existence of certain facts or hold an "opinion" with respect to those facts. In my opinion, upon the basis of the Chief Justices judgment in Woolworths, the only jurisdictional fact required to be objectively determined pursuant to [clause] 145(1)(a) [of the Environmental Planning and Assessment Regulation 2000 (NSW)] was that the certifying authority be "satisfied" of the relevant matters. Once that state of satisfaction is held to exist, that is the end of the inquiry subject only to judicial review on conventional administrative law grounds. Accordingly, it is clear that whether or not the plans the subject of the construction certificate were in fact "not inconsistent" with the plans the subject of the consent was not a jurisdictional fact which [clause]145(1)(a) required the court to determine for itself. In my opinion the primary judge was correct to reject the appellants argument to the contrary. 103In other words, the jurisdictional fact issue was, not whether or not the design andconstruction of the building (as depicted in the plans and specifications furnished tothe certifying authority for the purpose of the issue of a construction certificate) werein fact "not inconsistent" with the development consent, but whether the certifyingauthority was "satisfied" of the relevant matters. Indeed, it would appear to followthat only if the state of satisfaction, looked at objectively, was “manifestlyunreasonable” would there be grounds for setting aside the tribunal of fact’sdetermination of that matter.In Lane Cove Council v Minister for Urban Affairs and Planning 104 the NSW Court ofAppeal did not find it necessary to actually determine whether certain statutoryprovisions (one draft, the other gazetted) involved questions of jurisdictional fact.The first provision stated that consent must not be granted for certain developmentunless the consent authority was “satisfied” that the proposed developmentdemonstrated that adequate regard had been given to certain specified principles.The second provision (the one actually gazetted) provided that, in determining adevelopment application for consent to carry out residential flat development, theconsent authority was to “take into consideration” certain specified matters. SantowJA (Campbell J agreeing, McColl JA agreeing with the orders) said, “Whether either103 (2005) 138 LGERA 207 at 226 [87-9].104 [2005] NSWCA 122.
  26. 26. 26 105presage jurisdictional fact need not be decided.” However, it is clear from hisHonour’s judgment that he inclined strongly to the view that neither provisioninvolved a question of jurisdictional fact. 106THE WRONG APPROACHIn an earlier decision, being that of Pearlman J of the NSW Land and EnvironmentCourt in Byron Shire Businesses for the Future Inc v Byron Council & Anor (the ClubMed case), 107 a development consent granted by a local council was declared nulland void because, at the time the council purported to grant consent, no faunaimpact statement as required by the EPA Act had been lodged with the council.Interestingly, Pearlman J never determined that a fauna impact statement wasrequired. What her Honour did determined was that there was insufficient probativematerial before the council as to the likely effect of the proposed development on theenvironment of 2 particular species of endangered fauna. 108 In the opinion of herHonour, the council “started off with at least the possibility of significant effect” andwas “then bound by the [Act] to determine whether or not that was so”. 109 In respectof one species of endangered fauna, namely, the comb-crested jacana, “the onlyreasonable conclusion was that its environment was likely to be significantlyaffected”, and as to other species of endangered fauna the council “was required tomake a determination one way or the other as to significant effect onenvironment”. 110 The legal consequence of her Honour’s conclusion that thecouncil’s decision on the fauna question was “not reasonably open” to it was theinvalidation of “the very foundation of the development consent process”. 111 A faunaimpact statement was an essential prerequisite for the council to make adetermination of the development application. 112Insofar as the above issue of law was concerned there would not appear to beanything in her Honour’s judgment in the Club Med case that is inconsistent with the105 [2005] NSWCA 122 at [44].106 [2005] NSWCA 122 at [44-55].107 (1994) 84 LGERA 434.108 The development application before the council disclosed that approximately 33 species ofendangered fauna were likely to be within or near the site of the proposed development. The 2species in respect of which her Honour held that there was insufficient information before the consentauthority were the wallum froglet and the comb-crested jacana.109 (1994) 84 LGERA 434 at 446.110 (1994) 84 LGERA 434 at 446.111 (1994) 84 LGERA 434 at 447. See also Helman v Byron Shire Council & Anor (1995) 87 LGERA349.112 See also Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 209.
  27. 27. 27views subsequently expressed by the NSW Court of Appeal in the Timbarra case.However, the development consent was alleged to be invalid on other grounds aswell. One of those grounds was that the proposed development was, at least in part,“designated development” within the meaning of the EPA Act on a number ofdifferent bases. If that were the case, then the legislation required that anenvironmental impact statement be submitted to the consent authority (the localcouncil). However, no such environmental impact statement had ever beingsubmitted to the council. Ultimately, her Honour concluded that it was “reasonablyopen” for the council to have concluded that the proposed development was not“designated development”. 113 With respect, it is now clear, in light of cases such asTimbarra and Enfield, that her Honour did not apply the correct approach. Thequestion whether or not the proposed development was “designated development”within the meaning of the legislation involved a question of jurisdictional fact. Thecourt, in judicial review proceedings, was duty bound to determine the jurisdictionalfact or pre-condition anew. It is not a question of whether the decision made by thetribunal of fact on the issue was one that was “reasonably open” to it.In Londish v Knox Grammar School, 114 the NSW Court of Appeal was called upon tojudicially review the lawfulness of a development consent granted by a local councilto the school for a change of use of certain premises to a “boys school residentialarea”. It seems that the consent was granted on the basis of existing use rightsprovisions that allowed, with consent, a change from one non-conforming use toanother. The subject land was subsequently rezoned such that “educationalestablishments” were permissible with consent, but not “boarding-houses” whichwere prohibited. Later, a further consent was sought and obtained for additionalboarding accommodation and associated facilities.The court (per Stein JA, Mason P and Meagher JA agreeing), in dismissing theappeal, held that the primary judge (Talbot J in the NSW Land and EnvironmentCourt) had not erred when he expressed the test for jurisdictional error as whetherthe decision of the council was “reasonably open” to it (in characterising the use asan educational establishment). Stein JA stated:113 See (1994) 84 LGERA 434 at 450-5.114 (1997) 97 LGERA 1.
  28. 28. 28 In the circumstances of this case, it is apparent that the evidence and material before the council may have reasonably admitted to more than one conclusion. The decision reached by council to categorise the development as an “educational establishment” and not a “boarding house” was one which was reasonably open to it to make and within its discretion. Accordingly, in my opinion the councils decision is not reviewable by the court. 115In so holding, his Honour relied upon a previous decision of his in Bentham v KiamaCouncil 116 which concerned whether a proposed development should becharacterised as an hotel (which was prohibited) or, as the council had found, aconglomeration of a motel, tavern and conference centre (which was permissiblewith consent). In Bentham his Honour (then Stein J) stated that “the fact that mindsmight differ and conclude otherwise than did the Council is no reason to vitiate itsdecision”: 117 It was a decision which, in my opinion, was reasonably open to Council to make. It sought and acted on advice from the department. To put the question a different way, is the decision “looked at objectively,...so devoid of any plausible justification that no reasonable body of persons could have reached [it]”? (Lord Diplock in Bromley Borough v Greater London Council [1983] 1 AC 768, 821). I do not believe so. 118In other words, it was not for the reviewing court, in judicial review proceedings, todetermine whether or not, on whatever evidence might now be available, the subjectdevelopment ought to be categorised as an “educational establishment” or a“boarding-house” (or for that matter some other characterisation). It was simply aquestion of whether the determination by the tribunal fact in relation to that matterwas one that was “reasonably open” to it. Once again, it is now clear, in light ofcases such as Timbarra and Enfield that the court did not apply the correctapproach. It should have decided for itself, as a matter of jurisdictional fact, whetherthe proposed development was “educational establishment” or “boarding-house” orwhatever.In Transport Action Group Against Motorways Inc v Roads and Traffic Authority 119(1999) 104 LGERA 133, being a decision of the NSW Court of Appeal handed downa few months after the court’s unanimous decision in Timbarra, there was an115 (1997) 97 LGERA 1 at 8.116 (1986) 59 LGRA 94.117 (1986) 59 LGRA 94 at 98.118 (1986) 59 LGRA 94 at 98.119 (1999) 46 NSWLR 598; 104 LGERA 133.
  29. 29. 29argument that a decision made by a determining authority pursuant to s 112(4)(b)(i)of the EPA Act to "modify" a proposed activity involved: a jurisdictional fact: cf Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. The challenge provoked a contention by the respondents that the challenged decisions were valid because it was open to the RTA to conclude that the committed works were modifications within the ambit of s 112(4)(b)(i): cf Londish v Knox Grammar School (1997) 97 LGERA 1. 120The majority of the Court (Mason P and Sheller JA) did not find it necessary todecide whether or not the above mentioned statutory provision involved ajurisdictional fact 121 but Sheller JA expressed the view, 122 consistent with Londish,that the task of deciding the various matters arising under s 112 of the EPA Act were"entrusted to the determining authority" and that provided it acted “bona fide andreasonably”, its decisions could not be challenged. 123 Fitzgerald JA dissented. In hisview, the question was indeed one of jurisdictional fact. With respect, his view mustnow be preferred, for as Bignold J pointed out in Donnelly v Delta Gold Pty Ltd: 124 In particular, it is unlikely … that the decision in Londish can be taken to have survived the effect of the decision in Enfield. Curiously, Londish was not cited in the argument in Enfield. 125Now, if there remained any doubt as to what was the correct approach, it came to anend with Chambers v Maclean Shire Council. 126 In that case the NSW Court ofAppeal was called upon to judicially review the lawfulness of a development consentgranted by the council in respect of certain proposed development (viz theestablishment of a prawn and research station on certain land used as a farm). Theissue was whether the proposed development was prohibited such that the councillacked jurisdiction to consent to it. The applicant to the proceedings alleged that thedevelopment was not permissible because the proposed site did not meet theminimum performance criterion for pond-based aquaculture that elevation be greater120 (1999) 46 NSWLR 598 at 618; 104 LGERA 133 at 151 per Mason P.121 See (1999) 46 NSWLR 618-9; 151 per Mason P and 647-8; 172 per Sheller JA.122 At (1999) 46 NSWLR 648; 104 LGERA 172.123 At (1999) 46 NSWLR 648; 104 LGERA 172.124 (2001) 113 LGERA 34.125 (2001) 113 LGERA 34 at 52.126 (2003) 57 NSWLR 152; 126 LGERA 7.
  30. 30. 30than 1 metre Australian Height Datum ("AHD") as prescribed by State EnvironmentalPlanning Policy No 62 ("SEPP 62"). In order for the farm to meet the minimumperformance criteria, it had to be "within an area that is above 1 metre AHD andbelow 10 metres AHD". The elevation of 40 per cent of the farm was lower than 1metre AHD.The primary judge (Sheahan J, in the NSW Land and Environment Court) construedthe word "area" 127 to mean a "district" or "region", which could be categorised asgenerally having elevations ranging between 1 and 10 metres. His Honour, relyingupon the reasoning of the NSW Court of Appeal decision in Londish v KnoxGrammar School, 128 found that it was “reasonably open” to the council to have foundthat the general area in which the farm was located had a prevailing elevation ofapproximately 1 metre AHD or more. That meant that the proposed developmentwas permissible with consent and the Council was entitled to determine so. Onappeal to the Court of Appeal, it was held that the question of whether or not thesubject development was prohibited involved a question of jurisdictional fact. Ipp JA(with whose reasons Sheller and Giles JJA generally agreed) said: … The scheme of the Environmental Planning and Assessment Act relating to the three-fold classification of developments does not suggest that the determination whether an application for development is for a prohibited development (or one of the other two forms of development applications falling within Div 1 of Pt 4 of the Act) rests upon a councils own classification of the relevant circumstances. Rather, it indicates that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application or whether only the Minister has such power: cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 149. I would refer also to the statement of Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 65 that "if the factual reference is preliminary or ancillary to the exercise of a statutory power", the conclusion is likely to be a jurisdictional fact. The relevant factual reference in this case is whether the minimum performance criteria are met. Whether those criteria are met determines the character of the proposed development, namely, whether it is prohibited or not. That in turn determines whether the Council has the power to consent thereto. Thus, the factual reference is preliminary to the exercise of statutory power by the Council. Therefore, the reasoning in Londish does not apply: Timbarra Protection Coalition Inc v Ross Mining NL at 63. In my opinion, Sheahan J erred in applying the approach adopted therein. The question whether the minimum performance criteria were met127 In cl 4 of Sch 1 to SEPP 62.128 (1997) 97 LGERA 1.
  31. 31. 31 involves a jurisdictional fact and, according to the relevant legislation, must be answered objectively - not by reference to the subjective opinion of the Council. 129The previous decision of the court in Londish was for all intents and purposesdistinguished or otherwise confined to its own special facts and statutorycircumstances on the basis that Londish predated a number of significantamendments to the EPA Act that came into effect on 1 July 1998. Prior to that date,but not thereafter, the Minister had the power to “call up” and affirmatively determinean application made to a consent authority, not being the Minister, for the carryingout of what would otherwise be prohibited development. 130 With respect, it wouldappear that the court was simply trying to bring itself into line with the approachtaken by the High Court in Enfield City Corporation v Development AssessmentCommission. 131CONCLUSIONThe doctrine of judicial review - indeed, the rule of law - requires that the questionwhether a tribunal of fact has acted within jurisdiction be one for the reviewing courtto determine independently for itself. The task of determining whether or not aparticular factual reference (“fact situation”) in a statutory provision (“formulation”) isor involves a question of jurisdictional fact which the reviewing court must determinefor itself on the basis of all the relevant evidence requires a careful, indeedmeticulous (that is, “proper”) 132 examination of the statute as a whole, and not justthe formulation, applying ordinary principles of statutory construction, having regardto the legislative intention. The latter is to be deduced not only from express wordsbut also from “implications found in inferences to be drawn from the language[used]”. 133In order for there to be a question of jurisdictional fact - which is a conclusionreached after the process of statutory construction - the following matters would129 (2003) 57 NSWLR 152 at 160; 126 LGERA 7 at 16 [46-8].130 (2003) 57 NSWLR 152 at 159-60; 126 LGERA 7 at 15-6 [43].131 (2000) 199 CLR 135.132 Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 60 per Spigelman CJ.133 Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 298 per Jordan CJ.
  32. 32. 32ordinarily need to be satisfied or fulfilled, having regard to the context of theformulation and the underlying object or purpose of the statute: 1. The legislative intention must be such that there must be “objective” compliance with the fact situation. In other words, the fact (or fact situation) must exist in fact to “enliven” the power or duty to act. This is known as the element of “objectivity”. 2. The legislative intention must be such that the absence or presence of the fact situation will invalidate action under the statute. In other words, where the fact situation is “engaged”, the power or duty to act, or not act, in a certain specified way is triggered affirmatively or negatively. This is known as the element of “essentiality”.Along with such matters as the non-textual indicator of the purpose of theformulation in the overall legislative scheme (a matter of considerable importance)and the inconvenience, if any, that may arise from the fact situation being held to bejurisdictional (a matter of much less importance), indications of legislative intention(expressed here as questions to be asked) include but are not necessarily limited tothe following: • Does the fact situation occur or otherwise arise in the actual formulation of the grant of substantive power to the tribunal of fact to make the ultimate decision on the merits? If so, the fact situation is unlikely to be or involve a question of jurisdictional fact. • Does the fact situation occur or otherwise arise as a matter for consideration or as a matter to be ultimately adjudicated upon by the tribunal of fact in the decision making process? If so, the fact situation is unlikely to be or involve a question of jurisdictional fact, particularly where the ultimate decision involves the assessment of a wide range of matters of considerable complexity involving the formation of value judgments in respect of matters on which reasonable persons might reasonably arrive at divergent conclusions.
  33. 33. 33 • Does the fact situation occur or otherwise arise in the context of a duty, express or implied, that is preliminary or ancillary to the exercise of the substantive power to make the ultimate decision on the merits? If so, the fact situation is likely to be or involve a question of jurisdictional fact. • Does the fact situation have to be established either as a condition precedent for the decision maker to exercise its jurisdiction or otherwise consist of matters that have to be satisfied in the course of exercising jurisdiction? If so, fact situation will almost certainly involve a question of jurisdictional fact. • Does the fact situation occur or otherwise arise in a formulation requiring the formation by the tribunal of fact of a specified mental state (eg “opinion”, “satisfaction”). If so, the fact situation itself (as opposed to the mental state) is unlikely to be or involve a question of jurisdictional fact. Nevertheless, the reviewing court will ordinarily enquire as to the “reasonableness” (in the Wednesbury sense) of the actual mental state of the tribunal of fact.Other matters to be considered include the following: • Does the formulation, in its proper context, use the language or terminology of prohibition? This is relevant, but not necessarily determinative of the issue. • Does the statute, or some other statute or statutory instrument, contain a mechanism or facility that affords flexibility whether by means of administrative alleviation or otherwise in the application of the provision? (Thus, what might otherwise be seen to be prohibitory in nature may end up having to be construed as only regulatory.)Ultimately, it all seems to get down to statutory construction and legislative intention,with the reviewing court having the final say … at least on those matters. One thingis, however, clear: the distinction between facts themselves and facts as we knowthem which lies at the heart of the so-called “jurisdictional fact doctrine” will always

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