Trives v Hornsby Shire Council [2015] NSWCA 158

Trives v Hornsby Shire Council [2015] NSWCA 158

The characterisation of proposed development as 'complying development' under the Environmental Planning and Assessment Act 1979 (NSW) is not a jurisdictional fact for the court but a matter for the satisfaction of the accredited certifier or council under s 85A; thus, the primary judge erred in treating the issue as jurisdictional and the orders should be set aside.

Parties
Applicant: Simon Trives; First Respondent: Hornsby Shire Council; Second Respondent: Charles Huynh; Third Respondent: Cassie Lin; Second Respondent (file 2014/376164): Kevin Sum; Third Respondent (file 2014/376164): Yun Yu Sum; Second Respondent (file 2014/376141): Lachlan Bardo; Third Respondent (file 2014/376141): Jing Yan
Jurisdiction
Australia
Judgment Date
11 June 2015
Procedural Posture
Appellate / Leave to Appeal and Appeal From Interlocutory Decision of Land and Environment Court
Outcome
Appeal allowed, leave to appeal granted; primary orders set aside; matter remitted to Land and Environment Court; Council ordered to pay applicant's costs in the Court of Appeal.
Legal Topics
Judicial Review, Jurisdictional Fact, Development Control, Statutory Interpretation, Complying Development, Privative Clause, Appeal – Leave, Certificate Validity
Administrative Law Constitutional Law Environment and Planning Law Judicial Review Jurisdictional Fact Development Control Statutory Interpretation Complying Development +3 more

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Parties

Simon Trives

Applicant

Hornsby Shire Council

First Respondent

Charles Huynh

Second Respondent

Cassie Lin

Third Respondent

Kevin Sum

Second Respondent (file 2014/376164)

Yun Yu Sum

Third Respondent (file 2014/376164)

Lachlan Bardo

Second Respondent (file 2014/376141)

Jing Yan

Third Respondent (file 2014/376141)

Procedural Posture

Appellate / Leave to Appeal and Appeal From Interlocutory Decision of Land and Environment Court

Legal Issues

  1. 1 Whether characterisation of proposed development as 'complying development' is a jurisdictional fact
  2. 2 Whether validity of complying development certificates depends on an objective fact or certifier’s satisfaction
  3. 3 Application and consequence of time limits for challenging certificates under Environmental Planning and Assessment Act s 101

Ratio Decidendi

The characterisation of proposed development as 'complying development' under the Environmental Planning and Assessment Act 1979 (NSW) is not a jurisdictional fact for the court but a matter for the satisfaction of the accredited certifier or council under s 85A; thus, the primary judge erred in treating the issue as jurisdictional and the orders should be set aside.

Court Disposition

Appeal allowed, leave to appeal granted; primary orders set aside; matter remitted to Land and Environment Court; Council ordered to pay applicant's costs in the Court of Appeal.

Orders

  • Grant the applicant leave to appeal in each proceeding.
  • Allow the appeal and set aside orders (1) and (3) made on 20 October 2014.