The recent Court of Appeal decision in El Khouri v Gemaveld Pty Ltd  NSWCA 78 saw the dismissal of a challenge to a Land and Environment Court (LEC) decision involving the LEC’s grant of consent to a development that was subsequently demonstrated by new evidence to be in breach of the height development standard.
The case raised the issue of whether compliance with development standards, such as the LEP height restriction there in question, are jurisdictional facts, ie a fact that must objectively exist before the power to grant consent was exercised, that can be reviewed and determined by the Court itself in judicial review proceedings, including on the basis of new evidence not before the original decision maker.
The Court of Appeal held that compliance with the height development standard was not a jurisdictional fact. This meant that, even though new survey evidence demonstrated that the LEC’s decision that the proposal complied with the height standard was incorrect, the determination to grant consent was not beyond power.
The Court of Appeal proceedings followed a Class 1 appeal seeking consent for a multi-level dwelling house adjoining Georges River. The appeal was the subject of a conciliation conference and ultimately resolved via an agreement under s34 of the Land and Environment Court Act 1979 (LEC Act). In granting development consent, the Commissioner was required under s34(3) of the LEC Act to be satisfied that the agreement between the parties to grant consent was a decision that the Court could have made in the proper exercise of its functions. The Commissioner was satisfied that the proposed development complied with the 9m height of buildings development standard. Indeed, the plans before the Commissioner, and a jurisdictional statement signed by both parties, provided that the proposed development complied with the 9m height standard.
Following the grant of development consent by the Court, the adjoining neighbours obtained survey evidence which demonstrated that a small portion of the approved development breached the 9m height standard. The neighbours commenced proceedings in the Court of Appeal (a somewhat rare occurrence), seeking judicial review of the LEC Commissioner’s decision on the basis that consent was granted in breach of the height standard without a cl 4.6 request to vary the standard.
On first impressions, one might think that granting consent to a development that breached a height development consent without a cl 4.6 request would be a decision that could be successfully challenged. However, this was not the case – the challenge to the LEC’s grant of consent was dismissed.
The key issue for the Court of Appeal to determine was whether a non-negligent error resulting in an application that breached the 9m height standard was a jurisdictional fact that entitled the Court of Appeal, on different/ new evidence, to decide for itself the height non-compliance issue and set aside the LEC’s decision. The Court of Appeal found that compliance with the height development standard in the relevant LEP was not a jurisdictional fact.
As such, it was not open for the Court of Appeal to determine for itself, including on the basis of the new survey evidence, whether the height standard was breached or not. Whilst compliance with the height development standard under the relevant LEP was a mandatory matter that the Commissioner had to have regard to under s4.15(1)(a) of the Environmental Planning and Assessment Act 1979, this was not a jurisdictional fact – it was not a jurisdictional prerequisite to the power to grant consent. This may be contrasted with decisions involving characterising whether development is prohibited or not, which the Court of Appeal has held involves a jurisdictional fact (see Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707;  NSWCA 422).
Implications of the decision appear to extend not just to LEC decisions, whether via s34 agreements or following a contested hearing, but any decision of a consent authority in relation to compliance with development standards. Examples of some implications include:
- For councils/ consent authorities: Whilst all due diligence and care must be taken when assessing DAs to ensure that development standards are complied with, or if breached supported by a well-founded cl 4.6 request, if later evidence is produced demonstrating there was in fact a breach of a development standard this does not necessarily mean the consent can be held to be invalid; and
- For neighbours of approved development/ applicants/ developers: If you are a neighbour where consent is granted that is subsequently proved on new evidence to involve a breach of a development standard, there may not be any utility seeking to challenge the consent because compliance with the standard is not a matter that can be determined by the Court itself in judicial review proceedings. Similarly, if you are the beneficiary of development consent granted in such circumstances, the prospects of a successful challenge to your consent on the basis of the height breach would not appear good.
This article was written by Philip Brown, Partner and Sofia Bryan, Graduate-at-Law.