Trives v Hornsby Shire Council  NSWCA 158 (11 June 2015) found that a decision by an accredited certifier that a development was a ‘complying development’ under theEnvironment and Planning Assessment Act 1979 (NSW) (EPA Act) was not a jurisdictional fact and could not be upset by the Land and Environment Court (LEC).
BACKGROUND TO THE CASE
The appeal arose out of the decision by Craig J in the Land and Environment Court that various complying development certificates issued by Simon Trives, an accredited certifier, were invalid.
Trives appealed on the basis that the LEC was invited by Hornsby Council to act on the assumption that the characterisation of the proposed developments, as ‘complying development’, was a matter that could be determined by the LEC because that characterisation is a ‘jurisdictional fact’.
COURT OF APPEAL’S DECISION
Finding against the Council, the Court of Appeal said the characterisation of a ‘complying development’ was solely for the accredited certifier to decide:
- Whether a proposed development is ‘complying development’, is specifically identified as a question to be determined by the certifier (s 85A(1) and (3)).
- The certifier has no discretion in deciding whether a development is ‘complying development’ - if the certifier forms the opinion that a development meets the criteria for ‘complying development’, he or she is then required to issue a certificate.
- As the EPA Act prevents appeals relating to the issue of complying development certificates, it would be inconsistent for the LEC to then be able to determine whether or not the proposed development was ‘complying development’.
HOW TO REVIEW AN OPINION FORMED BY A CERTIFIER
The Court of Appeal emphasised that the certifier in this case was still required to act in accordance with to the law in forming his opinion. Specifically, he or she must act rationally and not unreasonably. As a certifier is not required to give reasons for his or her decision, any inference of unreasonableness on the certifier’s part will need to be drawn from objective considerations. The Court will take note of the issues before the certifier when making his or her decision, as well as the decision itself.
When issues of statutory construction arise, parties may be better to frame their application for judicial review as an error of law rather than a jurisdictional fact.