Lesnewski v Mosman Municipal Council [2005] NSWCA 99

Lesnewski v Mosman Municipal Council [2005] NSWCA 99

Section 101 of the Environmental Planning and Assessment Act 1979 did not prevent the Land and Environment Court from determining whether the appellant was denied procedural fairness, because procedural fairness may operate as an inviolable limitation or restraint not protected by s 101. However, Regulation 145(1)(a) did not require the Court to determine objectively whether the construction certificate plans were not inconsistent with the development consent plans; the relevant jurisdictional fact was the certifying authority's satisfaction, which was established by the certificate and was not pursued on Wednesbury grounds on appeal.

Jurisdiction
Australia
Judgment Date
06 April 2005
Procedural Posture
Class 4 Proceedings in the Land and Environment Court Concerning the Validity of a Development Consent and Construction Certificate / Appeal to the New South Wales Court of Appeal From Decisions and Costs Orders of Pain J
Outcome
Appeal allowed in part.
Legal Topics
['privative Clauses' 'procedural Fairness' 'development Consent' 'construction Certificate' 'jurisdictional Fact' 'wednesbury Unreasonableness' 'costs on Appeal']
['administrative Law' 'environmental Planning and Assessment' 'judicial Review' 'costs'] ['privative Clauses' 'procedural Fairness' 'development Consent' 'construction Certificate' 'jurisdictional Fact' 'wednesbury Unreasonableness' 'costs on Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Proceedings in the Land and Environment Court Concerning the Validity of a Development Consent and Construction Certificate / Appeal to the New South Wales Court of Appeal From Decisions and Costs Orders of Pain J

Legal Issues

  1. 1 ['Whether s 101 of the Environmental Planning and Assessment Act 1979 barred a challenge to the validity of a development consent based on denial of procedural fairness.' 'Whether Regulation 145(1)(a) of the Environmental Planning and Assessment Regulation 2000 required the Court to determine for itself, as a jurisdictional fact, whether construction certificate plans were not inconsistent with development consent plans.' 'Whether the costs orders made at first instance should be set aside following partial success on appeal.']

Ratio Decidendi

Section 101 of the Environmental Planning and Assessment Act 1979 did not prevent the Land and Environment Court from determining whether the appellant was denied procedural fairness, because procedural fairness may operate as an inviolable limitation or restraint not protected by s 101. However, Regulation 145(1)(a) did not require the Court to determine objectively whether the construction certificate plans were not inconsistent with the development consent plans; the relevant jurisdictional fact was the certifying authority's satisfaction, which was established by the certificate and was not pursued on Wednesbury grounds on appeal.

Court Disposition

Appeal allowed in part.

Orders

  • ['Appeal allowed in part.' 'Orders made by Pain J on 2 August 2004 with respect to the costs of the proceedings at first instance be set aside.' 'Declare that s 101 of the Environmental Planning and Assessment Act 1979 does not prevent the Land and Environment Court from determining whether the appellant was denied...