LONDISH v KNOX GRAMMAR SCHOOL and ORS [1997] NSWCA 190

LONDISH v KNOX GRAMMAR SCHOOL and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and STEIN JJA 7 November 1997, 22 December 1997

[1997] NSWCA 190

Environmental Planning and Assessment Act 1979 — s104A — interpretation of privative clause — alleged jurisdictional error. Characterisation of use — reasonably open to council — no error of law.

The school purchased premises a short distance from the school campus and obtained council approval for its use as boarding premises in 1987. In 1997 it obtained a further approval to construct further accommodation for boarders and staff. The appellants sought to challenge the validity of both consents.

On appeal the appellants submitted:

1. The council should not have granted the 1987 consent as a change of non-conforming use, because it should have found that the existing use had been abandoned prior to the grant of consent. Notwithstanding s104A the court could resolve a challenge to the 1987 consent because council's error deprived it of jurisdiction.

2. The trial judge erred when he expressed the test for jurisdictional error as whether the decision of council was reasonably open to it (in characterising the use as an educational establishment in granting the 1997 consent).

3. If His Honour was correct in 2, that the test was incorrectly applied by failing to consider whether the existing use relied on in March 1987 had been abandoned.

Held:

1. The privative clause in s104A Environmental Planning and Assessment Act 1979 precludes review of the decision of council to grant consent in 1987 because council's decision satisfies the three limbs of the Hickman principle.

2. The court will not review the decision reached by council because the facts could reasonably have led to more than one conclusion, and the decision reached by council was reasonably open to it and within its discretion.