Helen Lesnewski v Mosman Municipal Council and Anor [2003] NSWLEC 407

Helen Lesnewski v Mosman Municipal Council and Anor [2003] NSWLEC 407

The proceedings were commenced outside the three-month period after the s 101 advertisement. On the lack of jurisdiction ground, Sericott was materially indistinguishable and binding, so s 101 barred the challenge. On the natural justice ground, the pleaded allegations did not show a manifest failure to comply with the Notification Development Control Plan and did not justify holding that s 101 did not apply; there was no bad faith or relevant inconsistency between statutes. However, s 80(12) was not sufficiently clear to make a construction certificate incorporated into a development consent immune from challenge under s 101, so the Applicant's challenge to the construction certificate...

Jurisdiction
Australia
Judgment Date
09 April 2003
Procedural Posture
Class 4 Judicial Review Proceedings / Ex Tempore Judgment on Challenge to Development Consent and Construction Certificate
Outcome
The Respondents succeeded on the lack of jurisdiction and natural justice grounds; the Applicant succeeded in establishing that the construction certificate ground was not barred by s 101.
Legal Topics
['validity of Development Consent' 'section 101 Privative or Time Limit Provision' 'hickman Principle' 'natural Justice' 'delegated Authority' 'construction Certificate']
['environmental Planning and Assessment' 'administrative Law' 'judicial Review'] ['validity of Development Consent' 'section 101 Privative or Time Limit Provision' 'hickman Principle' 'natural Justice' 'delegated Authority' 'construction Certificate']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Ex Tempore Judgment on Challenge to Development Consent and Construction Certificate

Legal Issues

  1. 1 ['Whether s 101 of the Environmental Planning and Assessment Act (1979) barred proceedings commenced more than three months after public notice of the development consent was given.' 'Whether the development consent could be challenged on the ground that the general manager lacked delegated authority to grant it.' "Whether the development consent could be challenged on the ground that the Applicant was denied natural justice through alleged non-compliance with the Council's Notification Development Control Plan." 'Whether the construction certificate was immune from challenge under s 101 because of s 80(12) of the Environmental Planning and Assessment Act (1979).']

Ratio Decidendi

The proceedings were commenced outside the three-month period after the s 101 advertisement. On the lack of jurisdiction ground, Sericott was materially indistinguishable and binding, so s 101 barred the challenge. On the natural justice ground, the pleaded allegations did not show a manifest failure to comply with the Notification Development Control Plan and did not justify holding that s 101 did not apply; there was no bad faith or relevant inconsistency between statutes. However, s 80(12) was not sufficiently clear to make a construction certificate incorporated into a development consent immune from challenge under s 101, so the Applicant's challenge to the construction certificate...

Court Disposition

The Respondents succeeded on the lack of jurisdiction and natural justice grounds; the Applicant succeeded in establishing that the construction certificate ground was not barred by s 101.

Orders

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