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Was compliance with height control a jurisdictional fact?

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


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.


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.

The land is zoned residential. The Kogarah Local Environmental Plan 2012 (Kogarah LEP) imposes a height restriction of 9m over all three blocks.

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.

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.

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)].

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."

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.

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.


Was the height of the proposed building a jurisdictional fact necessary to enliven the LEC's power undef Section 34(3) of the Land and Environment Court Act?


The starting point is to construe the power whose exercise is impugned in this proceeding.

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”.

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."

Jurisdictional fact

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.”

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.

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

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.

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).

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.


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.

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.

Accordingly, the amended summons filed on 2 August 2022 must be dismissed.


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