El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 (26 April 2023)

Last Updated: 26 April 2023

Court of Appeal Supreme Court New South Wales

Case Name:	El Khouri v Gemaveld Pty Ltd
Medium Neutral Citation:	[2023] NSWCA 78
Hearing Date(s):	6 April 2023
Decision Date:	26 April 2023
Before:	Gleeson JA at [1]; Leeming JA at [2]; Adamson JA at [80]
Decision:	Amended summons dismissed, with costs.
Catchwords:	ENVIRONMENT AND PLANNING – judicial review of consent to build new dwelling house – consent granted following conciliation conference in Land and Environment Court – proposed development in fact exceeded height control – exceedance not clear from material before Land and Environment Court – Commissioner found on basis of evidence before him that proposed development did not exceed height control and could be granted in proper exercise of court's functions – applicants brought proceedings in supervisory jurisdiction of Supreme Court – applicants adduced fresh survey evidence establishing height control exceeded – whether compliance with height control a jurisdictional fact – whether prohibition in Local Environmental Plan applied of its own force – significance of consent being granted following conciliation conference as opposed to after a hearing – Ross v Lane [2022] NSWCA 235 considered and applied – compliance with height control not a jurisdictional fact – summons dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60 Environmental Planning and Assessment Act 1979 (NSW), ss 3.16, 3.19, 3.27, 4.2, 4.3, 4.15, 4.16, 8.7, 8.14, 10.6 Georges River Local Environmental Plan 2021, cl 1.8A Interpretation Act 1987 (NSW), s 21, Pts 5, 6 Kogarah Local Environmental Plan 2012, cll 4.3, 4.6 Land and Environment Court Act 1979 (NSW), ss 4, 34 State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, cl 4 Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3 AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10 Clone Pty Ltd v Players Pty Ltd (in liq) (mgrs and recs apptd) (2018) 264 CLR 165; [2018] HCA 12 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 El Khouri v Gemaveld Pty Ltd [2023] NSWSC 25 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182 Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 R v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113; [1978] HCA 60 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] HCA 8 Ridley v Whipp (1916) 22 CLR 381; [1916] HCA 76 Ross v Lane [2022] NSWCA 235 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2002] NSWCA 422
Category:	Principal judgment
Parties:	Peter John El Khouri (First Applicant) Goumana Therese El Khouri (Second Applicant) Effi Theodorakopoulos (Third Applicant) Gemaveld Pty Ltd (First Respondent) Land and Environment Court (Second Respondent) Georges River Council (Third Respondent)
Representation:	Counsel: J Lazarus SC with J Farrell (Applicants) C Leggat SC with S Berveling and C Koikas (First Respondent) Solicitors: Pikes & Verekers Lawyers (Applicants) Salim Rutherford Lawyers (First Respondent)
File Number(s):	2022/00197368
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Land and Environment Court of New South Wales
Jurisdiction:	Class 1
Citation:	[2022] NSWLEC 1182
Date of Decision:	7 April 2022
Before:	Horton C
File Number(s):	2021/293258

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

1. GLEESON JA: I agree with Leeming JA.
2. LEEMING JA: The applicants invoke this Court’s supervisory jurisdiction seeking to quash development consent granted by the Land and Environment Court over the first respondent’s neighbouring land because they have established on evidence which was not before that Court that the development exceeds a height restriction applicable to the land. Following a remitter at which facts were found, the principal and dispositive issue is one of statutory construction, namely, whether compliance with the height restriction is a jurisdictional fact which can be reviewed by this Court on the basis of evidence not before the Land and Environment Court. For the reasons which follow, I have concluded that it is not a jurisdictional fact. It follows that the summons should be dismissed.

Factual background

3. The applicants, Mr Peter and Ms Goumana El Khouri and Ms Effi Theodorakopoulos, are neighbours to the north and south of land owned by the first respondent, Gemaveld Pty Ltd. All three lots are on Stuart Street, Blakehurst in southern Sydney. All three lots are long, thin and descend steeply from street level on the east to the Georges River to the west, as is seen from the aerial photograph from the Statement of Environmental Effects lodged with the development application (the red line identifies the boundaries of Gemaveld’s land).

4. Gemaveld’s land has a frontage of 15.24m, and northern and southern boundaries of 147.555m and 149.049m respectively, with an area of some 2029m2.
5. Gemaveld applied for approval of development comprising demolition works and the construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works. The plans approved for Gemaveld’s land are for a residence with four levels, numbered 0 (which is street level), -1, -2 and -3.
6. The land is zoned residential. The Kogarah Local Environmental Plan 2012 (Kogarah LEP) imposes a height restriction of 9m over all three blocks. It is not straightforward to apply that restriction. Building height is measured “from ground level (existing) to the highest point of the building”, with “ground level (existing)” defined to mean “the existing level of a site at any point”. The thinness and steepness of the lots has meant that the home constructed by Mr and Ms El Khouri, and that approved for construction by Gemaveld, occupies almost the entirety of the narrow width of the lots, and extends down the slope. There is an existing dwelling on Gemaveld’s land (which is to be demolished) which is apt to complicate determining the existing ground level. Further, the land does not slope evenly from the road level to the Georges River. Instead, it slopes unevenly and there is also a “cross fall”, which is to say that the slope on the northern boundary of Gemaveld’s land is different from the slope on the southern boundary of Gemaveld’s land. Finally, and significantly for present purposes, there is a part of the lot where the land falls away very sharply, referred to by the surveyor as a “rock wall”. Most of the building envelope sits on the high side of the rock wall. However, a small portion of the north west corner of one of the levels of the proposed building (level -1) extends over the edge of the rock wall (as will be made clearer from the surveyor’s plan reproduced below).
7. The Council refused development consent, and Gemaveld commenced proceedings in Class 1 of the jurisdiction of the Land and Environment Court. One of the issues identified in the litigation was the height of the building proposed by Gemaveld, and it seems that Gemaveld obtained new plans showing the building envelope sitting wholly within a line drawn 9m from ground level, on both the northern and southern elevations of the proposed development. Part of one of those elevations (DA-6.02), which shows levels -1, -2 and -3, is reproduced below:

8. The dotted green line on the elevation was found by White J to have been intended to indicate “ground level (existing)” for the purposes of the height restriction, and the dotted orange line along the top of the elevation is 9m above the green line. As will be seen, his Honour also found that the lines were incorrect.
9. Pursuant to s 34 of the Land and Environment Court Act 1979 (NSW), a conciliation conference was conducted and agreement was reached between Gemaveld and the Council. Section 34(3) provides as follows:

(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a) must dispose of the proceedings in accordance with the decision, and
(b) must set out in writing the terms of the decision.

10. In April 2022, a Commissioner of the Land and Environment Court satisfied himself that the agreed decision was one that the Court could have made in the proper exercise of its functions and accordingly made orders granting consent: Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182. The Commissioner was explicitly satisfied that “[t]he proposed development complies with the height of building standard of 9m at cl 4.3 of the [Kogarah] LEP”: at [7(3)].
11. The Commissioner could not have reached any other view, based on the material before him. Height had been an issue between the parties, but following the supply of further plans, the Commissioner had before him a “jurisdictional statement” signed by the solicitors for Gemaveld and the Council which, pursuant to s 34(10), was admissible as to the fact that the parties agreed that “[t]he proposed development pursuant to the Amended DA satisfies the 9m development standard”. Further, the Commissioner had the new elevations mentioned and reproduced above.
12. It seems that these were the only up-to-date materials bearing upon height. If there was any evidence pointing in the other direction, the Court was not taken to it. In particular, if the applicants had information about the height of the north western corner of level -1, it seems not to have been provided to the parties to the Class 1 proceedings or to the Commissioner. As will be seen below, the survey commissioned by them post-dated the grant of consent.
13. By summons filed in this Court on 6 July 2022, shortly before three months after the Commissioner’s decision, the applicants sought judicial review of the Commissioner’s decision. The fact that they did so within three months means that it is unnecessary to consider the effect of the privative clause in s 3.27 of the Environmental Planning and Assessment Act 1979 (NSW) or the time limitation in r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW). The second and third grounds of the summons were based on a failure to notify and a failure to afford procedural fairness. Those grounds were abandoned after the Council served its evidence. The first and only ground which was pressed was that:

The Court had no power to make the decision to grant consent to the DA because it was not a decision that the Court could have made in the proper exercise of its functions, within the meaning of s 34(3) ... in that the height of the proposed development exceeded the relevant height control in the Kogarah [LEP] and there was no request to vary that standard as required by cl 4.6 of that LEP.

14. Whether or not the height control in the Kogarah LEP was exceeded was a question of fact. The summons came before White JA on a referral, and his Honour identified separate factual questions that arose and remitted them for determination by a Judge in a Division. His Honour thereafter conducted a hearing over two days and promptly produced a judgment (El Khouri v Gemaveld Pty Ltd [2023] NSWSC 25) in which two of those questions were answered as follows:

Question 1. For the purposes of cl 4.3(2) of the Kogarah LEP, does the proposed dwelling house approved by the Consent exceed the maximum building height shown for the Site on the relevant height of buildings map in that instrument?

A: Yes, but this did not appear from the plans submitted to the consent authority.

Question 2. If the answer to question 1 is yes, did the First and Second Applicants excavate the Site prior to 7 April 2022 in the portion of the Site that is in breach of the height of buildings development standard for the purposes of question 1, and if so, to what extent?

A: No.

15. Mr Victor Mansell was a surveyor retained by the applicants’ solicitors who attended the neighbouring land to the north on 5 May 2022 (that is to say, after the approval which issued from the Land and Environment Court). From that land, he identified a natural surface at RL17.5 on Gemaveld’s land. The point was slightly more than a metre downhill from the rock wall. The further survey conducted by Mr Mansell disclosed that a triangle of the building envelope on the north-western corner exceeded the 9m height control for a slight area where the building overhung the rock wall. The footprint of that area was approximately a right triangle, some 2.78m along a line parallel to the boundary, some 3.05m across Gemaveld’s site, with the hypotenuse comprising the rock wall, as shown on the following extract from Mr Mansell’s survey:

16. In that survey, the blue hatched triangle is the area where the 9m height limit is exceeded, the green arrow attached to the asterisk identifies the natural ground level identified by Mr Mansell, the hypotenuse of the blue triangle is labelled “TOP OF BANK” and “ROCK WALL”, and the red line to the north is the boundary with the El Khouris’ land, reflecting a curtilage of 1.2m. The natural ground level is some 83m from the street, in around the middle of the lot (it will be recalled that Gemaveld’s land is a thin strip some and 147m long). Only a small fraction of Gemaveld’s land is shown on the extract reproduced above.
17. The exceedance is a tiny proportion of the land, and a tiny proportion of the building envelope, and comes about because the rock wall rather than running north south parallel with the street instead bends eastwards, towards the street, on the northern side of Gemaveld’s lot.
18. It will be clear from the state of the evidence summarised above that the proceedings raised the question of jurisdictional fact acutely. It was common ground in this Court that the 9m height control was exceeded by the proposed developments. But the position before the Commissioner was precisely the opposite. It was common ground before the Commissioner, and the entirety of the evidence pointed in one direction, that there was no exceedance of that height control.
19. Thus, it is clear that the Commissioner formed the opinion that the proposed building did not exceed the 9m height limit, and it is clear that he did so properly in a manner which is not susceptible to challenge based on the evidence before him. On the other hand, if the power to issue consent turns not on the opinion that the building did not exceed the height control, but on the fact that the building did not exceed the height control, then plainly that fact is not established.
20. It was also made clear during argument that not only was there no suggestion of any fraud on the part of any of those involved in preparing or evaluating the development application, but there was also no suggestion of any negligence. Hence the issue may be framed as whether a non-negligent error resulting in a development application which in fact breaches cl 4.3 of the Kogarah LEP is a jurisdictional fact entitling this Court, on different evidence, to set aside the decision of the Land and Environment Court. One reason for reproducing the evidence above is to explain how something seemingly as “objective” as building height may, in its application to the particular site, be quite complex and give rise to non-negligent error. That is so even when plans are prepared by professionals and notwithstanding the fact that it is an offence to provide information in connection with an application which is known, or which the person ought reasonably to know, is false or misleading in a material particular: Environmental Planning and Assessment Act, s 10.6. Different considerations may apply where an administrative decision has been obtained through fraud and different considerations may likewise apply where s 10.6 has been contravened. As was noted during the hearing, the analyses in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 esp at [16], [29] and [52]-[53] and Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [37]- [44] demonstrate that care needs to be taken before relying on some principle that “fraud unravels everything”; see further (bearing in mind that the consent impugned by the applicants is a judgment of a court) Clone Pty Ltd v Players Pty Ltd (in liq) (mgrs and recs apptd) (2018) 264 CLR 165; [2018] HCA 12. This judgment is not intended to express a view one way or the other on the principles applicable in such cases.

Was the height of the proposed building a jurisdictional fact?

21. The starting point is to construe the power whose exercise is impugned in this proceeding.
22. Section 34(3) of the Land and Environment Court Act is reproduced above. There is no issue that agreement was reached between Gemaveld and the Council so as to engage the subsection. The Commissioner was thereupon under an obligation to dispose of the proceedings in accordance with the agreed decision, subject only to the words in brackets: “being a decision that the Court could have made in the proper exercise of its functions”.
23. As Basten JA explained in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [16]:

If a decision of the Land and Environment Court could be set aside or declared invalid by this Court, it is not “a decision that the Court could have made in the proper exercise of its functions”. Nor would it make sense to read s 34(3) as implicitly authorising such a decision. If the development application lacked essential elements, the deficiencies could render a consent one which could not have been granted in the proper exercise of the Court’s functions.

24. To the same effect, Preston CJ of LEC wrote at [71] of the subsection:

A jurisdictional requirement that has remained constant from the original enactment of s 34 to date is that the power of the Commissioner to dispose of the proceedings in accordance with the parties’ decision is made conditional on that decision “being a decision that the Court could have made in the proper exercise of its functions” (in s 34(3) of all versions of the section). If the parties’ decision does not answer that description, the Commissioner has no power to dispose of the proceedings in accordance with the parties’ decision.

25. Substantially the same was said in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [8]- [11].
26. Thus it was necessary for the Commissioner to ask whether the decision to which the parties had agreed was one which the Court could have made in the proper exercise of its functions. “Function” is defined in s 4 of the Land and Environment Court Act to include a power, authority or duty, and “exercise a function” is defined to include perform a duty. There is nothing in s 34(3) to displace the defined meanings. That in turn requires regard to be had to the powers which would have been exercised, and the duties to which the Court would have been subject, had agreement not been reached at the conciliation conference.
27. As Preston CJ at LEC explained in Al Maha at [75], because Gemaveld had appealed against the Council’s refusal of its application pursuant to s 8.7 of the Environmental Planning and Assessment Act, the Court exercised the functions of the Council as the consent authority by reason of s 8.14 of that Act, which relevantly provides:

8.14 Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act)

(1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

28. That in turn would have required the Court to have regard to the matters in s 4.15(1), especially s 4.15(1)(a) which is emphasised below:

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
(v) (Repealed)

that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.

29. Gemaveld’s development application was lodged prior to the commencement of the Georges River Local Environmental Plan 2021, and thus in accordance with cl 1.8A of that plan, the former Kogarah LEP applied to Gemaveld’s land and thereby was an environmental planning instrument which engaged s 4.15(1)(a). Clause 4.3 of the Kogarah LEP provided, at relevant times:

4.3 Height of buildings

(1) The objectives of this clause are as follows—

(a) to establish the maximum height for buildings,
(b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas,
(c) to provide appropriate scale and intensity of development through height controls.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

30. The Height of Buildings Map showed a height of 9m applicable to Gemaveld’s land.
31. There was no doubt that if the parties had not reached agreement at the conciliation conference and the Land and Environment Court had gone on to hear and determine Gemaveld’s appeal, then Court would have been required to have regard to cl 4.3 of the Kogarah LEP as an environmental planning instrument within s 4.15(1)(a). Even though the parties had reached agreement at a conciliation conference, in determining whether the decision reached by Gemaveld and the Council following the conciliation conference was one which “the Court could have made in the proper exercise of its functions” for the purposes of s 34(3) of the Land and Environment Court Act, the Court was required to consider what approvals could have been given following a hearing, and in that way had to have regard to cl 4.3 of the Kogarah LEP.
32. As will be seen below, the applicants disagreed with that analysis on a variety of bases. However, before addressing their submissions, it is convenient to turn to the notion of a “jurisdictional fact” and the most recent consideration of how the powers exercised in a Class 1 appeal engage the principles of statutory construction dealing with jurisdictional facts.

Jurisdictional fact

33. When reference is made to a “jurisdictional fact”, the issue is whether a precondition to the exercise of statutory power has been satisfied. The High Court has described jurisdictional facts as “an essential condition of the jurisdiction of the magistrate” (Ridley v Whipp [1916] HCA 76; (1916) 22 CLR 381 at 385; [1916] HCA 76), “an essential preliminary or a condition precedent” to the jurisdiction (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 385; [1938] HCA 7), “any event or fact or circumstance” which is “made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend” (Parisienne Basket Shoes at 391), a “condition of jurisdiction” (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 399; [1970] HCA 8), and “a preliminary question on the answer to which ... jurisdiction depends” (R v Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113 at 125; [1978] HCA 60). Many of the more modern decisions have arisen in the context of challenges to decisions under planning and environmental laws, including Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; [1997] HCA 10, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2002] NSWCA 422 and Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3. However, there is nothing peculiar to the principles governing jurisdictional facts in decisions made under planning and environmental laws. In Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]- [44], the High Court noted that the term could be used imprecisely, and gave the following description:

The expression “jurisdictional fact” was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd:

“The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act – it is a condition of jurisdiction.”

34. One reason for difficulty is terminological. The precondition may be a question of fact. Alternatively it may be merely that the donee of the power be satisfied of or hold the opinion that the precondition is satisfied. There is a difficulty of nomenclature here, because the attainment of a state of satisfaction or the holding of an opinion is itself a question of fact as to the state of mind of the donee of the power.
35. The difficulty in nomenclature may be acute where one party contends that the “jurisdictional fact” is the fact that the precondition is satisfied, while the other party contends that all that matters is that the decision-maker be satisfied that or be of the opinion that the precondition is satisfied. That is not uncommon, and the present litigation is an example. It is clear that the bracketed words in s 34(3) are a precondition to granting development consent to what has been agreed between the parties. The question is whether that precondition is satisfied by the opinion of the Land and Environment Court on the basis of the materials before it, or whether it must be satisfied as a matter of fact, which can be reviewed including on the basis of different evidence in this Court’s supervisory jurisdiction.
36. Fundamentally, the question in such cases is one of statutory construction. It is clear both in principle and as a matter of authority that it is a question of construing the statute which confers the power whose exercise is impugned. In many cases this has not been properly appreciated. Some of the applicants’ submissions must be rejected because they failed to appreciate as much.

Ross v Lane

37. In Ross v Lane [2022] NSWCA 235, a neighbour brought proceedings in Class 4 of the jurisdiction of the Land and Environment Court to challenge the validity of a consent granted by council, lost and appealed to this Court. Simplifying slightly, the issue in this Court was whether an application for development approval was the “substantial redevelopment or the substantial refurbishment of an existing building”. If so, then State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development applied. That was because of cl 4(1) of that SEPP which provided as follows:

4 Application of Policy

(1) This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if—

(a) the development consists of any of the following—

(i) the erection of a new building,
(ii) the substantial redevelopment or the substantial refurbishment of an existing building,
(iii) the conversion of an existing building, and

(b) the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking), and
(c) the building concerned contains at least 4 or more dwellings.

38. All members of this Court favoured dismissing the appeal, but they divided on whether the application of cl 4(1)(a)(ii) was a jurisdictional fact, or else was a matter left to be determined by the decision-maker. Macfarlan JA and Basten AJA held that the application of cl 4(1)(a)(ii) was not a jurisdictional fact.
39. Macfarlan JA agreed with the reasons on this issue given by Basten AJA (at [1]), but gave four reasons by way of emphasis at [2]-[5], namely:
    • (1) the fact that “[t]he present case does not involve prohibited development, but development which may be carried out with consent”, in contrast with Pallas Newco;
    • (2) the fact that “consideration of what is a ‘substantial’ redevelopment is an inherently evaluative exercise”;
    • (3) the fact that the issue arose under s 4.15 in a context “where many, if not all, of the matters referred to in the following paragraphs of that section are of a clearly non-jurisdictional fact nature”; and
    • (4) characterisation of the application of SEPP as a jurisdictional fact would “render Council consents more readily open to challenge”, which “could be seen as detrimental to the public interest where the point in issue, being a subjective one of planning and development, is one upon which the Council would be well-equipped to opine and (subject to conventional judicial review challenge) reach a final conclusion”.
40. Basten AJA treated the point elaborately, and on the view he took, it was dispositive of the entire appeal. His Honour started with the uncontroversial proposition that the issue whether or not a criterion of the engagement of a power was a jurisdictional fact was one of statutory construction: at [75]. Basten AJA proceeded at [79]-[84] to identify and elaborate three factors bearing on the question of statutory construction, which had been considered in a similar context in Pallas Newco.
41. The first was whether the criterion of engagement of the power required identification of a fact in precise terms (giving as an example whether a building has more than seven storeys above ground level). Where the criterion was evaluative, as to which minds could reasonably differ, that favoured a conclusion that it was not a jurisdictional fact. However, his Honour added at [80]:

There may, however, be a difficulty in drawing such a distinction where the statute includes in one provision criteria some of which are precisely defined and others of which involve matters of degree. It may be unlikely that the legislature intended some to be “jurisdictional facts”, but not others.

42. The second turned on consequences, and picked up what Dixon J had said in Parisienne Basket Shoes at 391:

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.

43. Basten AJA observed that the concern to which Dixon J referred also arose in relation to determinations appearing on a public register and affecting rights in land.
44. The third was the statutory context. His Honour said at [83]-[84]:

An important factor in determining whether a condition or criterion is jurisdictional is to consider how it operates in the particular statutory context in which it appears. In Australian Heritage Commission v Mount Isa Mines Ltd the High Court considered whether a criterion for placing matters on the Register of the National Estate constituted a jurisdictional criterion, or rather one for determination by the Commission. The criterion was identified in inherently evaluative language, the Act providing that “the national estate consists of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have that aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community”. Mount Isa Mines contended that the definition created a jurisdictional criterion. It was not, however, merely the evaluative language which persuaded the High Court otherwise. The Court stated:

“The construction of the Act proposed by MIM would produce the result that, notwithstanding the detailed provisions made in this legislation for the giving of public notices and the receipt and consideration of objections, and notwithstanding the significant steps which may have been taken in public administration for a wide variety of laws by reason of the existence of an entry in the Register, a decision of the Commission to register will at all relevant times remain liable to challenge for absence of the requisite ‘jurisdictional fact’ to enliven the obligation of the Commission to make the entry.
Those detailed mechanisms for public consultation and consideration by the Commission provide guidance on the ultimate issue in this litigation. They suggest that, on the proper construction of the Act, the Commission is given the power conclusively to determine whether or not a place should be recorded as part of the national estate and its determination of that question is not subject to review provided the Commission otherwise conducts itself in accordance with the law.”

It is necessary therefore to have regard to the statutory context which governs the process of obtaining a development consent. (Footnotes omitted.)

45. Basten AJA applied those principles by having regard to the relevant legislation, namely, the Environmental Planning and Assessment Act. Evidently there had been extensive submissions on the operation of cl 4 of the SEPP, but his Honour observed at [101] that “there was no explanation as to how the language of the legislative instruments in question could determine the operation of the statute” and held that “the better view is that they cannot”. Much the same occurred in the present case.
46. At [93]-[94] Basten AJA regarded the facts as differing in “significant respects” from those in Pallas Newco, because:

It does not involve prohibited development, but development which can be carried out with consent. Accordingly, what is now Div 4.3 of the Assessment Act, dealing with development that needs consent, is undoubtedly engaged. It follows that the various steps in Div 4.3, described in s 4.11 as the “main steps in the development consent process” are those set out in ss 4.12-4.18 and relevant parts of the Environmental Planning and Assessment Regulation 2000 (NSW) ... The terms of s 4.15 (Evaluation) have been set out above, and it will be convenient to return to aspects of that provision. First, the terms of s 4.16 should be noted:

4.16 Determination (cf previous s 80)
(1) General A consent authority is to determine a development application by—

(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.

(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
...
(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

Prohibited development aside, a consent authority is obliged to determine whether or not to grant consent to a development application (s 4.16) and is required to carry out an evaluation taking into consideration the matters specified in s 4.15. Some of those matters will apply to some applications but not others, so that the obligation is to take into account “such of the following matters as are of relevance to the development the subject of the development application”. There can be no doubt that such matters as the likely environmental impacts of a development, the suitability of the site, submissions made by members of the public and the public interest (as identified in subs (1)(b)-(e)), are all matters which the consent authority must (so far as relevant) take into account: they cannot reasonably be described as matters which are “preliminary or ancillary to” the decision-making process, nor as raising facts and matters “extrinsic to” that process, so as to require separate determination by a court. There is nothing in the wording of these provisions which would lead to a different view as to operation of par (a) and the matters specified therein. Whilst par (a) qualifies the categories listed with the words “that apply to the land to which the development application relates”, it may be doubted that any different exercise is engaged than that of determining matters as being “of relevance”. (Footnotes omitted.)

47. His Honour added at [96]:

There can be legal questions as to the operation of an environmental planning instrument. However, there is extensive provision in Pt 8 of the Assessment Act for reviews and appeals with respect to the grant of development consent, or the refusal of an application for development consent. The inconvenience which would arise if any question of fact or law as to the application of any instrument identified in par (a) required resolution by a court in order to determine the validity of the process of evaluation undertaken by the consent authority. That consequence militates against the drawing of any such implication. The language of s 4.15 itself provides no basis for such an implication, in circumstances where the section expressly confers power, and indeed obligations, on the consent authority and not on a court.

48. Basten AJA expressed his conclusion at [102]-[103] thus:

There is nothing in the language of the Assessment Act which states or necessarily implies that a question as to the application in a particular case of a particular environmental planning instrument is a matter which can only be determined authoritatively by the court. Rather, by requiring the consent authority to have regard to certain matters, the appropriate implication is that the consent authority is empowered and required to determine which matters are relevant, and how they are engaged, in relation to a particular development application.

By contrast with the issue in Woolworths Ltd (whether a proposed development was prohibited development and therefore did not fall within the assessment function), the engagement, in relation to development concededly permissible with consent, of particular environmental planning instruments is a part of the function conferred on the consent authority under s 4.15 for the purposes of determining whether to grant consent under s 4.16. There is no clearly distinguishable function of classification as there was in determining whether the power of the authority to grant consent was engaged at all.

49. The third member of the Court, Beech-Jones JA, dissented on this issue. Like Basten AJA, his Honour was critical of the fact that much of the argument had turned upon the terms of the SEPP, because the starting point was the Environmental Planning and Assessment Act: at [33]. His Honour said at [37], a passage with which the applicants took issue:

Although many environmental planning instruments, including SEPP 65, are drafted in terms that purport to dictate the matters that must be considered by the consent authority in determining a DA, they do so from a shaky premise. Section 4.15(1)(a)(i) only requires that the consent authority “take into consideration” the provisions of the relevant environmental planning instrument. A statutory requirement to “take into account” a factor in making an administrative decision means it must be “give[n] weight ... as a fundamental element in making” the relevant determination (R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 per Mason J; [1979] HCA 32). A statutory requirement to take an instrument “into consideration” is not relevantly different. However, neither phrase requires the decision maker to apply the instrument as though it were a binding statute.

50. Thereafter, his Honour reached a conclusion that whether or not SEPP 65 applied was a matter to be determined objectively, and was not merely for the consideration of the decision-maker. In the absence of any submission that this Court should reopen what was decided by Ross v Lane it is unnecessary to summarise his Honour’s reasoning in any greater detail.

Application to a consent granted by the Land and Environment Court following a conciliation conference

51. Significantly, the development consent challenged in the present appeal was granted by the Land and Environment Court constituted by a Commissioner exercising the power conferred by s 34(3) of the Land and Environment Court Act , rather than by the local council exercising the powers and functions under ss 4.15 and 4.16 of the Environmental Planning and Assessment Act, as had been the case in Ross v Lane. It was primarily on this basis that the applicants sought to distinguish the result reached in Ross v Lane.
52. However, the only issue for the Commissioner was whether the decision to which Gemaveld and the Council had agreed during the conciliation conference was one which could have been made by the Land and Environment Court in the proper exercise of its functions. That involves a notional inquiry. But it involves the same considerations, and the same powers, as if there had been a hearing by that Court in the exercise of Class 1 of its jurisdiction, and that in turn involves the same powers and functions of the consent authority, including ss 4.15 and 4.16. In order for the Commissioner to determine whether the decision to which the parties had reached agreement was one which “the Court could have made in the proper exercise of its functions” within the meaning of s 34(3), it was necessary to identify the powers and functions of the Court determining an appeal from the refusal of Gemaveld’s application under s 8.7 of the Environmental Planning and Assessment Act, which included at least by reason of s 8.14 “all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”, and that picked up the obligations to have regard to the matters in s 4.15(1) and to exercise the power in s 4.16(1).
53. Thus on the reasoning upheld by this Court in Ross v Lane, compliance with cl 4.3 of the Kogarah LEP being a matter to which regard was required pursuant to s 4.15(1)(a) was not a jurisdictional fact. The same considerations of public inconvenience in the exposure of development consents to be the subject of challenges such as the present apply. The same considerations based on the structure of s 4.15(1) apply – namely, that paragraphs (b), (c), (d) and (e) are all evaluative and could not plausibly be regarded as jurisdictional facts, and for that reason it is unlikely that paragraph (a) would be in a different position. Similar but not identical considerations arise from the nature of the statutory process. In particular, there will ordinarily have been (and there was in the present case) a process of public consultation, during which objectors have an entitlement to make their views known, which tells against a legislative purpose permitting challenges on the basis of different evidence in this Court’s supervisory jurisdiction.
54. What is more, the result accords with a sensible statutory purpose. It would be highly incongruous if the same approval by the Land and Environment Court were differently susceptible to judicial review on the basis of evidence not before the Court depending on whether it were made following a successful conciliation conference as opposed to following a hearing.
55. The applicants’ submissions sought to resist that conclusion on a range of bases.

Clause 4.3 of Kogarah LEP applied of its own force

56. First, the applicants said that cl 4.3 applied directly of its own force. It was said:

an environmental planning instrument has force of law independently of s 4.15 of the Act. It’s delegated legislation authorised by the Act, and there’s no reason for it not to be applied according to its terms, notwithstanding that s 4.15 simply refers to an obligation to take it into consideration.

57. It was said that the power to make an environmental planning instrument contemplated “a great deal of flexibility within the statutory scheme”. Reliance was also placed upon the regime for standard instrument provisions (of which cl 4.3 was one). The conclusion was that “cl 4.3 and 4.6, and indeed any other provision of an environmental planning instrument have effect by it and have force of law simply because of those provisions. They don’t require a separate obligation under s 4.15 to have effect.”
58. No authority was cited in support of that proposition. It is inconsistent with what all members of the Court said in Ross v Lane at [33], [37] and [101]. It is also inconsistent with planning regime in s 4.15(1)(a) which is superfluous and indeed (as Beech-Jones JA pointed out) inconsistent with the applicants’ submission, for it is one thing to take into account a matter, and another thing to be bound by it.
59. A plan is an instrument for the purposes of the Interpretation Act 1987 (NSW), including for the purposes of its construction pursuant to Part 5, but it is not a statutory rule and therefore not subject to disallowance pursuant to Part 6: see Interpretation Act, s 21. Instead it has the benefit of the privative clause in s 3.27 of the Environmental Planning and Assessment Act. It is true that a plan may disapply the application of other laws for the purpose of enabling development to be carried out in accordance with another environmental planning instrument or a consent, so long as the Governor approves the provision before the plan is made (s 3.16, and see Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27), and it is also true that a plan may be expressed to prohibit certain specified development (s 3.19). But none of the foregoing supports the applicants’ proposition that the Kogarah LEP of its own force creates prohibitions and indeed an offence.
60. The applicants’ submission is inconsistent with the basic and longstanding structure of the Environmental Planning and Assessment Act, including s 4.2(1) (the former s 76A) and s 4.3 (the former s 76B) which provide that:

4.2 Development that needs consent (cf previous s 76A)

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

...

4.3 Development that is prohibited (cf previous s 76B)

If an environmental planning instrument provides that—

(a) specified development is prohibited on land to which the provision applies, or
(b) development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

Maximum penalty—Tier 1 monetary penalty.

61. Local environmental plans (and other environmental planning instruments) are important, but not because they directly create rights and obligations, let alone offences. Instead, they operate in conjunction with primary and delegated legislation which themselves create rights and obligations and offences. The planning instrument specifies development which is prohibited (whether conditionally or unconditionally), but it is statute which creates enforceable obligations and indeed offences based on the content of the instruments. Consistently with this, the High Court referred in Cumerlong at [10] to the relevant LEP in that litigation as supplying a “factum” upon which a clause of the planning ordinance operated.

Section 4.15 not engaged because s 34(3) operates independently

62. The applicants also said that s 4.15 was not engaged, because the power came directly from s 34(3):

GLEESON JA: All right. Then is it not appropriate then when you’re referring what had to be considered by the Commissioner, why couldn’t that then link into s 39(2), ie, if the Court heard and disposed this appeal, it would have all the functions and discretions of the body et cetera?

LAZARUS: But the important point is the limitation in s 34(3) is in the proper exercise of its functions, so although there might be some linkage, as your Honour pointed out, as the Court held in Al Maha, it’s of a very limited nature, and it certainly does not involve s 4.15 of the Environmental Planning and Assessment Act.

63. That submission stressed the fact that s 34(3) did not require an actual decision by the Land and Environment Court. As Mr Lazarus SC stressed, it was a “hypothetical exercise”. Nonetheless, that exercise required regard to the powers and functions the Land and Environment Court would exercise when hearing and determining Gemaveld’s Class 1 appeal, and that in turn picked up s 4.15 in the manner indicated above, because the Court had the powers and functions of the Council which had refused the development application.
64. The applicants placed reliance on this Court’s decision in Al Maha. Al Maha confirms that a consent granted pursuant to s 34(3) may be quashed if consent of the owners of land on which the development is to be carried out has not been obtained. Basten JA said at [11]:

The critical aspect of s 34(3) may be found in the words in parentheses providing that the Commissioner could only dispose of proceedings, following an agreement between the parties, if the proposed decision was “a decision that the Court could have made in the proper exercise of its functions”. That language might have been invoked with respect to the lack of owner’s consent. The Land and Environment Court could not have upheld an appeal seeking development consent for an application relating to land owned by Al Maha if Al Maha had not consented to the application.

65. Preston CJ of LEC said at [174]:

The Commissioner’s decision to grant consent to the further amended development application without the owner’s consent of Al Maha involved jurisdictional error. Owner’s consent was a jurisdictional prerequisite to the valid exercise of the power to grant consent to the further amended development application. Owner’s consent is not merely a requirement to be fulfilled before work is undertaken on any affected land. The Commissioner’s decision to grant consent was therefore outside power.

66. Thus even if a consent authority or the Land and Environment Court hearing and determining an appeal is of the opinion that the owners of land on which the development is to be carried out have consented, if that be not the fact, then the approval is liable to be set aside, and the fact that there was no owner’s consent may be established on evidence which was not before the Land and Environment Court. A grant of approval to carry out development on land to which not all of whose owners have consented is not a decision that “the Court could have made in the proper exercise of its functions” and thus may be reviewed in proceedings such as the present.
67. A separate aspect of Al Maha turned on whether the Commissioner had formed the opinions required by cl 4.6 of the relevant LEP so as to enliven the power to grant development consent to development which (coincidentally) contravened a height development standard: see at [17]-[24] and [176]-[207]. But that does not assist the applicants, because Gemaveld (understandably, in light of the evidence then available that its development complied with cl 4.3 of the Kogarah LEP) made no such application.
68. Al Maha does not deal with whether a complaint that there was a factual error in the matters to which the Court had regard pursuant to s 4.15 in order to determine whether the agreed decision was one which could be made by the court in the proper exercise of its functions is jurisdictional.

The “objective” form of certain clauses including cl 4.3 of the Kogarah LEP

69. The applicants engaged in extensive submissions of the various clauses of the Kogarah LEP, with a view to pointing out that the majority were evaluative, but a minority including cl 4.3 were “objective” and therefore lent themselves to being jurisdictional facts. It was said, “The submission that we ultimately put is that if it had been the intention to make height and the other development standards subjective, the instrument would have said so”.
70. This is wrong in principle and contrary to authority. The content of the Kogarah LEP cannot determine whether a power conferred by statute is subject to a precondition which is a jurisdictional fact. The question is one of statutory construction. The same error was made in Ross v Lane and was rejected by this Court at [37] and [101].

Criminal offences

71. The applicants submitted, repeatedly, that contravention of cl 4.3 of the Kogarah LEP was a criminal offence. It was said, “So it’s actually a criminal offence not to comply with cl 4.3 unless dispensation is granted under cl 4.6, and that we say is a matter that bears significant weight.” This submission was expressly based on ss 4.2 and 4.3 of the Environmental Planning and Assessment Act, and thus was supplemental to the primary submission that local environmental plans had force of themselves.
72. It is true that it is a criminal offence to carry out development which is permitted only with consent where consent has not been given, just as it is an offence to carry out prohibited development. But that does not undercut the threefold distinction in the statute, which is a significant aspect of this Court’s decision in Ross v Lane, that attaches significance to the fact that the development was permissible with consent as opposed to being prohibited development.

Public interest

73. The applicants said there was a compelling public interest in ensuring compliance with the height restrictions. That may be acknowledged, although its force is diluted to an extent by the ability to seek dispensation. There is likewise a compelling public interest in preventing third parties such as the applicants from bringing proceedings such as the present, thereby throwing doubt upon consents which may have been granted much earlier in time, and potentially in respect of land which has subsequently been sold, especially where the legislation creates a careful regime of notification and consultation.

Conclusion and orders

74. For those reasons, there is no material difference for the purposes of jurisdictional facts, between a development consent granted “on the merits” whether by the consent authority or by the Land and Environment Court after hearing an appeal, and a development consent granted under s 34(3) following a successful conciliation conference. In both cases, environmental planning instruments are a mandatory consideration by reason of s 4.15(1)(a). In the case of a determination on the merits, that occurs at the time the power is exercised. In the case of a successful conciliation conference, that occurs when the Court forms the opinion required by s 34(3) that the agreed decision is one which the Court could have made in the proper exercise of its functions. But in neither case is compliance with the environmental planning instrument a jurisdictional prerequisite to the power to grant consent.
75. It is plain that the Commissioner had regard to cl 4.3 of the Kogarah LEP. He expressly formed the only view that was open to him on the evidence which was available to him, namely, that there was compliance with the height requirement. That decision is not vitiated merely because the applicants can establish, by evidence not made available to the Commissioner, that there was not compliance with that clause.
76. Accordingly, the amended summons filed on 2 August 2022 must be dismissed.
77. White J reserved the costs of the determination of the questions to this Court. There is no reason for the costs of the questions litigated not to be borne by the applicants. The parties indulged in around 70 pages of submissions on the costs of the grounds which were abandoned by the applicants shortly before the hearing before White J. In fact the submissions on costs occupied more paper than the submissions on the substantive ground of the summons. In addition to the five sets of submissions were some 50 pages of affidavits. None of this reflects well on the parties, and it suggests a disregard of the obligation that costs be proportionate, reflected in s 60 of the Civil Procedure Act 2005 (NSW).
78. The applicants chose to commence proceedings against two active respondents. They have been wholly unsuccessful. Contrary to the applicants’ submissions, the Council was entitled to be separately represented in order to respond to the grounds which the applicants abandoned. Consistently with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, the Council did not thereafter take an active role. Although the applicants complain that the Council’s evidence was supplied belatedly, leading to the eventual abandonment of their grounds, I nonetheless see no reason to depart from the usual rule that the applicants pay the respondents’ costs, including the respondents’ costs on grounds which the applicants commenced but abandoned along the way.
79. Accordingly, I propose that the amended summons be dismissed, with costs.
80. ADAMSON JA: I agree with Leeming JA.

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