Reported Decision : 136 LGERA 288 61 NSWLR 707 New South Wales Court of Appeal CITATION : WOOLWORTHS LTD v PALLAS NEWCO PTY LTD & ANOR [2004] NSWCA 422 revised - 29/03/2005 HEARING DATE(S) : 23 June 2004 26 August 2004 JUDGMENT DATE : 19 November 2004 JUDGMENT OF : Spigelman CJ at 1; Mason P at 136; Handley JA at 146; Sheller JA at 149; Cripps AJA at 183 DECISION : Appeal dismissed CATCHWORDS : ADMINISTRATIVE LAW - judicial review - jurisdictional facts or conditions precedent - planning legislation - development applications - provisions for approval of development applications - where environmental planning instrument includes detailed zoning table - where environmental planning instrument provides certain nominate uses permissible with consent - whether classification of proposed development as permissible constitutes jurisdictional fact - nature of jurisdictional fact - Environmental Planning and Assessment Act 1979, Pt 3 and Pt 4, Div 2 - ADMINISTRATIVE LAW - privative clauses - statutory construction - effect of reference to "validity of a consent" in privative clause - where privative clause permits any form of challenge within specified time period - whether privative clause protects decisions from jurisdictional error - Environmental Planning and Assessment Act 1979 s101 - BUILDING CONTROL AND TOWN PLANNING - environmental planning instruments - development applications - zoning provisions - where flexibility in certain circumstances - effect of characterising use identified in development application as prohibited - Environmental Planning and Assessment Act 1979, Pt 3 and Pt 4, Div 2 Environmental Planning and Assessment Act 1979 ss 4, 26, 35, 54, 57, 62, 63, 64, 65, 66, 67, 78, 69, 70, 72A, 72J, 76, 76A, 76B, 76C, 77, 78A, 79C, 80, 88A, 89, 100, 101, 106, 123, 124, 125 LEGISLATION CITED : Environmental Planning and Assessment Regulation 2000 reg 264 Local Government Act 1919 Abebe v Commonwealth (1999) 197 CLR 510 Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd (1907) 5 CLR 33 Andrews v Styrap (1872) 26 LT(NS) 704 Auburn Municipal Council v Szabo (1988-89) 67 LGRA 427 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 291 Australian Heritage Commission v Mount Isa Mines (1995) 60 FCR 456 Baxter v New South Wales Clickers' Association (1909) 10 CLR 114 Bentham v Kiama Municipal Council (1986) 59 LGRA 94 Breitkopf v Wyong Council (1996) 90 LGERA 269 Brown v Rezitis (1971) 127 CLR 157 Cabal v Attorney General (Cth) (2001) 113 FCR 154 Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1999) 86 FCR 266 Chambers v Maclean Shire Council (2003) 57 NSWLR 152 Chevron USA Inc v Natural Resources Defense Council Inc (1984) 467 US 837 Clancy v Butchers' Shop Employés Union (1904) 1 CLR 181 Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs & Planning (1996) 90 LGERA 341 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 Currey v Sutherland Shire Council (2003) 129 LGERA 223 Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 D.M.W. v C.G.W. (1982) 151 CLR 491 Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 Giddings v Ashfield Council [1999] NSWLEC 238 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Helman v Byron Shire Council (1995) 87 LGERA 349 Hornsby Shire Council v Vitone Developments Pty Ltd (2003) 132 LGERA 122 House of Peace v Bankstown Municipal Council (2000) 48 NSWLR 498 Hunter Valley Vineyards Association v Council of the City of Cessnock [1998] NSWLEC 76 Lizzio v Ryde Municipal Council (1984) 155 CLR 211 Londish v Knox Grammar School (1997) 97 LGERA 1 Magrath v Goldsborough Mort & Co Limited (1932) 47 CLR 121 CASES CITED : Manly Council v Hortis (2001) 113 LGERA 321 McGrath v Kristensen 340 US 162 (1950) Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 224 Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGRA 333 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 Ostrowski v Palmer (2004) 78 ALJR 957 Perrin v Peters (1983) 48 LGRA 123 Perrin v Peters (1983) 52 LGRA 198 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355 R v Gray; Ex parte Marsh (1985) 157 CLR 351 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 R v Nat Bell Liquors Limited [1922] 2 AC 128 R (Profile Alliance) v British Broadcasting Corporation [2004] 1 AC 185 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 Scott v Wollongong City Council [1986] NSWLEC 85 Sericott v Snowy River Shire Council (1999) 108 LGERA 66 Shire of Perth v O'Keefe (1963) 110 CLR 529 Sutherland Shire Council v Finch (1969) 123 CLR 657 Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 Taylor v Hornsby Shire Council (1990) 69 LGRA 281 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 Warehouse Group (Australia) Pty Ltd v Woolworths Limited [2003] NSWCA 270 Winn v Director General of National Parks & Wildlife [2001] NSWCA 17 Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38 Wykanak v Rockdale City Council (1998) 100 LGERA 27 Woolworths Limited (Appellant) PARTIES : Pallas Newco Pty Limited (First Respondent) Ashfield Municipal Council (Second Respondent) FILE NUMBER(S) : CA 40985/03 Dr J Griffiths SC / B Preston SC / J Jagot (Appellant) COUNSEL : T Hale SC / S Brockwell (First Respondent) P Jackson (Second Respondent - submitting appearance) Corrs Chambers Westgarth (Appellant) SOLICITORS : Freehills (First Respondent) Pike Pike & Fenwick (Second Respondent) LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 40443/03 FILE NUMBER(S) : LOWER COURT Talbot J JUDICIAL OFFICER : - 76 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40985/03 SPIGELMAN CJ MASON P HANDLEY JA SHELLER JA CRIPPS AJA Friday 19 November 2004 WOOLWORTHS LIMITED v PALLAS NEWCO PTY LIMITED & ANOR FACTS On 20 January 2003, Ashfield Municipal Council granted development consent to an application by Woolworths Limited to use an existing building on Parramatta Road as a drive-through liquor outlet. A number of conditions were attached to the grant of consent. Under the Ashfield Local Environmental Plan 1985, development that was permissible with consent within the subject zone included "drive-in take-away establishments". In April 2003, Pallas Newco Pty Ltd made an application for a declaration that the development consent was void and of no effect, as well as an order that Woolworths be restrained from acting on it, in the Class 4 jurisdiction of the Land and Environment Court. Talbot J made the declaration and order sought. His Honour held that the characterisation of the nominated permissible use for which development consent was sought and granted involved a jurisdictional fact, and that the proposed development was not a "drive-in take-away establishment". His Honour also held that the decision should be overturned on the basis of unreasonableness. Woolworths appeals from Talbot J's decision. HELD A. (per Spigelman CJ, Mason P, Handley and Sheller JJA and Cripps AJA agreeing) Taking into account the legislative purpose and statutory context of Pts 3 and 4 of the Environmental Planning and Assessment Act 1979, the characterisation of the use nominated in a development application as permissible with consent under the terms of the applicable environmental planning instrument is a jurisdictional fact, which the Land and Environment Court must determine for itself. [86], [89], [136], [139], [140], [142], [181], [182], [219] Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 applied; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, Perrin v Peters (1983) 48 LGRA 123, (1983) 52 LGRA 198, Chambers v Maclean Shire Council (2003) 57 NSWLR 152 referred to; Londish v Knox Grammar School (1997) 97 LGERA 1 not followed. B. (per Sheller JA) The criterion rendering development permissible, namely use as a drive-in take-away establishment, is indistinguishable from the criteria of non-complying development in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135, because the absence or presence of both criteria mandate a particular outcome. [181] C. (per Spigelman CJ, Mason P, Sheller JA and Cripps AJA agreeing) The reference to "validity of a consent" in the privative clause in s101 of the Environmental Planning and Assessment Act , identifying the kind of challenge protected by the section, is intended to protect decisions from jurisdictional error. This minimises the degree of inconvenience arising from the finding that a consent authority's characterisation of a development as permissible is a jurisdictional fact. [79], [80], [85], [136], [182], [219] Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 considered. R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 , Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602, Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 referred to. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 distinguished. (per Handley JA) A consent entitled to the protection conferred by s101 is no answer to proceedings for contravention of s76B. Either the jurisdictional defect in the consent is manifest and the Hickman principle will operate, or the requirement that the proposed development be permissible with consent is essential, imperative and inviolable. [145], [146] D. (per Spigelman CJ, Mason P, Handley and Sheller JJA and Cripps AJA agreeing) Talbot J was accordingly bound to determine the case on the basis of the evidence before the Court, and was not confined to the evidence before the primary decision-maker. His Honour was not required to exclude evidence not in existence as at the date of the primary decision. [88], [105]–[107], [136], [142], [182], [207] Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 followed. E. (per Spigelman CJ, Mason P, Sheller JA and Cripps AJA agreeing, Handley JA dissenting) The decision of the Council to characterise the development as a "drive-in take-away establishment" did not satisfy the stringent requirements of the Wednesbury unreasonableness test. [91], [92], [136], [182], [201], [202], [215] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 referred to. F. (per Spigelman CJ, Mason P, Handley and Sheller JJA and Cripps AJA agreeing) Talbot J applied the statutory formulation by asking whether the proposed development was a drive-in take-away establishment. His Honour did not err in his approach to determining the appropriate characterisation of the development proposal. The challenge to his factual findings should be rejected. [99], [103], [116], [118], [126], [136], [142], [182], [203] Shire of Perth v O'Keefe (1963) 110 CLR 529 applied. Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138, Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 referred to. G. (per Spigelman CJ, Mason P, Handley and Sheller JJA and Cripps AJA agreeing) Condition H1 of the development consent could not alter the failure of the development to conform with the applicable zoning. [128], [132], [136], [142], [182] Mison v Randwick Municipal Council (1991) 23 NSWLR 734, Winn v Director General of National Parks & Wildlife [2001] NSWCA 17 referred to. ORDERS Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40985/03 SPIGELMAN CJ MASON P HANDLEY JA SHELLER JA CRIPPS AJA Friday 19 November 2004 WOOLWORTHS LIMITED v PALLAS NEWCO PTY LIMITED & ANOR Judgment 1 SPIGELMAN CJ: The facts and issues are set out in the judgment of Cripps AJA which I have read in draft. The issue raised in these proceedings is a fundamental one for the administration of environmental law in New South Wales under the Environmental Planning and Assessment Act 1979 ("the Act"). 2 The jurisdictional fact issue that has arisen in the present case concerns the Special Business Zone 3(b) in the Ashfield Local Environmental Plan 1985 ("Ashfield LEP"). That zoning has the conventional threefold structure: first, identifying a range of uses that can be undertaken without development consent; secondly, identifying a range of uses that can be undertaken only with development consent and, finally, identifying a range of prohibited uses. The case turns, as the judgment of Cripps AJA shows, on the classification in the second of this threefold division (Item 2), identifying "drive-in take-away establishments" as a permissible use with consent. The third category of prohibited use has the frequently adopted format of prohibiting: "Any purpose other than a purpose included in Item 2". 3 Accordingly, if the use proposed by the Appellant is not a "drive-in take-away establishment", then the use is prohibited, as it falls within Item 3 of the relevant zoning. It has not been suggested that the proposed development could fall within any other classification of permissible use. 4 The orders made by Talbot J declaring the consent void and of no effect and restraining the Appellant from acting on the purported consent, flow from his Honour's conclusion that the proposed development was not a "drive-in take-away establishment". Accordingly, the proposed development was a prohibited development under the Ashfield LEP. 5 The case law and legal literature contains a great deal of terminological confusion about the concepts of "jurisdiction" and "jurisdictional facts". The authoritative statement of the relevant concept for Australia is set out in the joint judgment of the High Court in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at [28]: "The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome." 6 The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional. 7 What is involved is a specific application of the fundamental principle of judicial review of statutory decision-making, which Brennan J expressed in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power." 8 This has become the most frequently cited statement of principle in subsequent judgments in the High Court. (See, e.g. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth (1999) 197 CLR 510 at 579-80, [195]; City of Enfield at [43].) 9 The determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ. There is no bright line between jurisdictional error and error in the exercise of a jurisdiction. (See, e.g. Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163] per Hayne J.) Nevertheless, the Court, being called upon to do so, must determine whether the repository of a statutory power has acted, or proposes to act, in a manner which transgresses the limits upon the exercise of the power that Parliament has conferred. 10 The requisite approach is the same as the High Court determined was required in the context of discussing the terminology of "mandatory" or "directory" provisions, previously applied to breach of procedural conditions. The joint judgment of the Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 195 CLR 355 said at [93]: "The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning … A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." 11 The joint judgment in Project Blue Sky also said: "[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." 12 This is the same general approach as would later be adopted in City of Enfield to the determination of whether a fact was "jurisdictional". 13 This was not the approach adopted by this Court in Londish v Knox Grammar School (1997) 97 LGERA 1 esp at 7-8: "It is a question of law whether the primary facts can necessarily fit the statutory description: Azzopardi v Tasman UEB Industries Ltd [(1985) 4 NSWLR 139 at 156]. However, whether facts fall within the meaning of an ordinary expression, such as 'educational establishment' as a matter of common understanding, is a question of fact. Although more than one conclusion might reasonably have been reached by a decisionmaker, an incorrect finding will not involve an error of law: see Hope v Bathurst City Council [(1980) 144 CLR 1; 41 LGRA 262]. In such cases, it is not for the court to substitute its own opinion for that of the primary decision maker: Minister for Aboriginal Affairs v Peko Wallsend Ltd [(1986) 162 CLR 24]. The present case was commenced in class 4 of the Land and Environment Court's jurisdiction, by way of judicial review. There is a line of authority in the Land and Environment Court commencing in 1986, to the effect that if the opinion formed by the decisionmaker was not vitiated by irrelevant considerations and one which was reasonably open to make, the court will not review the substance of the decision: see for example, Bentham v Kiama Municipal Council [(1986) 59 LGRA 94], Leichhardt Municipal Council v Maritime Services Board (NSW) [(1985) 57 LGRA 169. See also Taylor v Hornsby Shire Council (1990) 69 LGRA 281, Malcolm v Newcastle City Council (1991) 73 LGRA 356, Save Blue Lagoon Beach Action Group Inc v Kelvest Pty Ltd (1993) 81 LGERA 144, Oshlack v Richmond River Shire Council (1994) 82 LGERA 236] and other cases cited in the footnote. See also my article discussing the policy issues concerning agency deference 'Relationship of Tribunals to the Decision-Maker, Deference to Agency Expertise – The Experience of the Land and Environment Court in New South Wales' [in R Creyke (ed), Administrative Tribunals: Taking Stock (1992), Centre for International and Public Law, ANU]." 14 This passage begins with a statement that what is involved is a question of fact. There is no recognition that this proposition is not determinative of whether a fact is jurisdictional, for the reasons I identified in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [28]: "The issue in Londish was purely a question of characterisation. The Court applied the well-established principle that whether the matter under consideration fell within the meaning of an ordinary English expression was a question of fact. To say that the issue is whether or not a proposal answers a specific statutory description, identifies the issue as one of fact. It says nothing about whether or not a finding of fact by a primary decision-maker can be called into question. It is not the law that the determination of whether or not something answers a statutory description cannot be a jurisdictional fact. (Sometimes called 'collateral fact' or 'condition precedent'.) Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears." 15 It is particularly significant that Londish does not contain any analysis of the legislative scheme of the character undertaken, for example, in City of Enfield or Timbarra. 16 Furthermore, as Stein JA acknowledged by his reference in Londish to his article "Relationship of Tribunals to the Decision-Maker, Deference to Agency Expertise – The Experience of the Land and Environment Court in New South Wales" in Robyn Creyke (ed) Administrative Tribunals: Taking Stock, Canberra 1992, the line of authority in the Land and Environment Court, which commenced with his Honour's own judgment when a judge of that Court in Bentham v Kiama Municipal Council (1986) 59 LGRA 94, was influenced by considerations of deference. In City of Enfield at [39]-[50], the High Court expressly rejected the proposition that Australian law contained any doctrine of deference. 17 Finally, in neither the line of authority in the Land and Environment Court, nor in Londish itself, was there any reference to the earlier decisions at first instance and in this Court in Perrin v Peters (1983) 48 LGRA 123 and on appeal (1983) 52 LGRA 198. The issue was whether tennis courts and a clubhouse constituted the permissible use for a "sportsground". Council gave consent. Perrignon J dismissed an appeal. This Court, consisting of Samuels, Mahoney and Priestley JJA, allowed the appeal. Both at first instance and on appeal their Honours assessed the facts for themselves. This Court held, on the evidence, that the particular development was not for use as a "sportsground". The approach adopted was inconsistent with the proposition that the Land and Environment Court, or this Court, was restricted to determining whether it was reasonably open to the Council, on the evidence before the Council, to classify the development as being within the permissible use. 18 For these reasons, and by reason of the views expressed in Chambers v Maclean Shire Council (2003) 57 NSWLR 152 esp at 159-160, the Court should reconsider Londish. A bench of five has been convened to do so. 19 The issue before this Court is whether the characterisation of a proposed development in an environmental planning instrument under the Environmental Planning and Assessment Act 1979 is so fundamental to the operation of the legislative scheme that, unless the proposed development is, as a matter of objective fact, accurately characterised as a use which is permissible, then a purported consent is not valid. The Legislative Scheme 20 In order to serve a wide range of broadly stated objects set out in s5 of the Act, which it is not presently necessary to repeat, land use planning and decision-making in New South Wales is conducted in accordance with a scheme comprised in the Act and the regulations under the Act together with environmental planning instruments of which the Ashfield LEP is one. Part 3 of the Act makes provisions for the promulgation of environmental planning instruments including local environmental plans. Detailed provision is made for the steps which must be undertaken prior to the promulgation of a plan. The relevant steps are as follows: · The council prepares a draft local environmental plan (s54). · The council prepares a relevant environmental study of the land (s57). · The two previous steps occur after consultation with, inter alia, relevant public authorities (s62) on the basis of information provided by public authorities (s63). · The draft local environmental plan is submitted to the Director General of the Department and a certificate, certifying that the plan may be publicly exhibited, is issued by the Director General (s64 and s65). · The draft local environmental plan is publicly exhibited (s66). · Public submissions are made (s67) and the council makes such amendments to the draft plan, based on those submissions, as it wishes to make (s68). · The Director General furnishes a report to the Minister concerning consistency between the draft plan and any State or regional policies or plans or directions (s69). · The Minister, in his or her discretion, makes the plan, subject to such alterations with respect to matters of State or regional environmental significance, and such deferrals, as the Minister determines (s70). 21 Part 3 of the Act does not contain detailed provisions concerning the content of an environmental planning instrument. The Parliament has adopted a policy of permitting the maximum degree of flexibility with respect to the content of environmental planning instruments, including local environmental plans. 22 The predecessor legislative scheme found in Pt XIIA of the Local Government Act 1919 was less flexible than the 1979 scheme. Nevertheless, certain traditions had developed with respect to the content of planning instruments which, it appears, it was envisaged may continue under the 1979 scheme. 23 Part 4 of the Act is concerned with Development Assessment. Division 1 of that Part is entitled "Carrying out of development – the threefold classification". This threefold classification is a reference to what had, by then, become a conventional tripartite division in zoning under the Local Government Act 1919. The three parts were: first, identifying development that does not need consent, secondly, identifying development that is permissible with consent and, thirdly, identifying development that is prohibited. By amendment in 1997 the Act made provision for two additional kinds of classification: "exempt development" and "complying development", but the Division is still headed "the threefold classification". The concept of "exempt development" is a particular category of development that does not need consent and "complying development" is a particular category of development that needs consent. Further, special provision was made for a new category of "State significant development", but nothing turns on these classifications for present purposes. 24 Nothing in the Act requires the adoption of particular kind of zones, even at the highest level of generality such as business, residential, industrial. Nor is there anything that requires each of the three classifications – permissible without consent, permissible with consent, prohibited – to be adopted. There are environmental planning instruments that have no use that is identified as prohibited in particular zones and a council may approve any development which it regards as consistent with the objectives of the zone. (See, e.g. Manly Council v Hortis (2001) 113 LGERA 321.) 25 The definition of development in s4 of the Act includes, relevantly, "use of land". This part of the definition clearly requires some kind of wording descriptive of a "use". However, such wording does not necessarily involve the kind of classifications of particular uses that has been traditionally adopted (e.g. the definitions contained in the Model Provisions). Subject to any relevant State plans, policies and ministerial directions, the legislative regime maximises flexibility in the identification of controls on development. For example, classifications turning on the opinion or satisfaction of a consent authority are permissible. A criterion expressed in terms of the opinion or satisfaction of a decision-maker may be a jurisdictional fact of a special kind, one more readily established. (See, e.g. City of Enfield at [34]; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198 per Gummow J; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 291 at 303.) The Court may subject the opinion to judicial review. It will not determine whether the development was, in fact, consistent with the objectives of the zone. 26 Another indication of flexibility is manifest in the very provisions under consideration in the present case. Special Business Zone 3(b) in the Ashfield LEP identifies, as noted above, a specific list of uses in Item 2 and adopts a residual – all other uses – in Item 3, which are prohibited. This is in contrast with the Ashfield LEP's General Business Zone 3(a) in which the specific list of uses is set out in Item 3, containing the prohibition, with the residual category being Item 2, permitting any other kind of use with consent. 27 The consent in issue in the present proceedings was granted by the Council in accordance with the procedures set out in Div 2 of Pt 4 of the Act. For present purposes, perhaps the pivotal section of the Act is the section with which that Division commences: "77 This Division: (a) applies to development that may not be carried out except with development consent …" 28 The process of development assessment relevantly commences with an 'application' "for consent to carry out development" (s78A) and culminates in a 'determination' by the consent authority "granting consent to the application … or refusing consent to the application" (s80). As delegated legislation, a plan occupies a position in the legal hierarchy higher than an administrative decision, such as a consent. That a consent authority has a wide ranging discretion with respect to granting consent, does not indicate that a similar discretion exists with respect to the determination of whether development is permissible at all. 29 These proceedings raise the issue of what, if any, is the effect of a consent under Div 2 of Pt 4 if, as a matter of objective fact, the development is a prohibited development to which, on a literal interpretation of s77(a), the Division does not apply. Indicators of Jurisdictional Fact 30 The first indicator arises from the scope and purpose of the legislative scheme creating zones and identifying permissible and prohibited uses within zones. The purpose of such zoning is to segregate uses from each other and to concentrate particular uses within specific areas. This process of segregation and concentration serves a variety of social and economic purposes which are considered through the detailed stages of the promulgation of a local environmental plan. 31 As indicated above the contents of a local environmental plan are not rigidly specified. Subject to State plans and policies, any requisite degree of flexibility can be incorporated in a plan. Parliament has enacted a scheme which permits, but does not require, inflexible distinctions and classifications. Where, as a result of the detailed planning process, a scheme of that character is adopted, Parliament is likely to have intended that it be implemented so that, as a matter of fact, uses are segregated and/or concentrated in the manner for which the plan provides. If greater flexibility had been thought desirable it could have been incorporated in the plan so that the relevant criterion would not be regarded as a jurisdictional fact at all or, as in the case of a criterion turning on opinion or satisfaction, would be readily established. That was not done here. 32 The second indicator is the terminology of "prohibition" itself and the statutory implications of development being prohibited. The very word "prohibited" has a level of force more consistent with a finding of jurisdictional fact than with the conferral of an ability to err within jurisdiction. In the present scheme, the force of the terminology adopted is reinforced by specific statutory provision. 33 "Prohibited development" is defined in s4 to mean: "(a) development the carrying out of which is prohibited on land by the provisions of an environmental planning instrument that apply to the land, or (b) development that cannot be carried out on land with or without development consent." 34 Section 76B provides: "76B If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land." 35 This prohibition operates subject to other provisions of the Act, as expressly provided in s76C. I will consider s101 which is directed to the "validity" of a consent below. Relevantly, there is nothing in the subsequent legislative scheme that suggests that a purported consent for a use which is in fact prohibited operates as an exception to s76B. 36 A person who carries out prohibited development contravenes the Act. A consent does not turn prohibited development into permissible development. That would constitute an amendment to an environmental planning instrument, without satisfying the procedural requirements of Pt 3. 37 The use of the land for a prohibited use constitutes a contravention of s76B. Accordingly, the person who carries it out commits an offence under s125 of the Act. The person may have a defence of honest and reasonable mistake of fact in a future criminal prosecution. (The defence was recently considered by the High Court in Ostrowski v Palmer (2004) 78 ALJR 957.) This Court did not receive submissions on this issue and it is unnecessary to decide it. Nevertheless, the fact that what is involved is a contravention of the Act that constitutes a criminal offence is a strong indicator that the fact is jurisdictional. 38 The legislative regime considered in the City of Enfield case had similar provisions to those in the Act. The plan there under consideration, called a Development Plan, prohibited use for "special industry" as defined. A prohibited use was called "non-complying development". (See at [6] and fn 17.) Persons were forbidden from undertaking such development and anyone who did so committed an offence. (The equivalent sections to s76B and s125 of the Act are referred to at [3].) The ultimate issue that arose in the proceedings was whether the prohibition on the developer had not been lifted by the purported consent of the consent authority, the Development Assessment Commission ([30]). 39 The legislative regime under consideration in City of Enfield went beyond that under consideration here. There was an express provision that a consent "must not be granted" for a prohibited use by the Development Assessment Commission, unless the local council had agreed to consent being given. (See esp at [6] and [32]-[33].) There is no similar provision directed to the consent authority in the Act. 40 Substituting the words "prohibited" for "non-complying" and "local environmental plan" for "development plan", in order to adapt the provision for the present case, the South Australian Act, and the determinative passages of the High Court judgment would read: "A development that is of a kind described as a [prohibited] development under the relevant [local environmental plan] must not be granted a … consent unless … the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent." 41 Of this section the High Court said: "[28] … The determination of the question whether [the applicant] proposed a [prohibited] development, which turned upon the application of a criterion of 'special industry', was a condition upon the existence of which there operated the obligation that the Commission not grant consent." 42 The High Court rejected the submission that the section creating an obligation to refuse consent "rests upon [the consent authority's] own classification of the relevant circumstances". Nothing in the section turned on the opinion of the consent authority. (At [33]-[34].) 43 The High Court concluded that the section required the objective existence of the facts said to constitute development for "special industry" and the trial judge had to determine that issue on the facts before the Court, not on the facts before the consent authority (at [38]). 44 In the City of Enfield case the indicators of jurisdictional fact were found in both the prohibition of the development and in the express statutory provision to the effect that the consent authority "must not grant consent unless". By reason of the latter element, City of Enfield does not determine this case. 45 A third indicator in the legislative scheme under consideration is found in provisions of the Act which increase the flexibility of the legislative scheme in specific circumstances. The significance of these provisions for present purposes is that they operate on the assumption that a prohibition on use means what it says. The following sections appear to be of this character. · Under Div 4A of Pt 3 a proponent of a prescribed residential development can apply for the preparation of a local environmental plan in the case of a development which may not be carried out (See s72A(2)). · Under Div 4B of Pt 3 a development application may be made to and considered by a consent authority although the development can only be carried out if an environmental planning instrument is amended (see s72J). · With respect to a prohibited development which, in the Minister's opinion, is of significance for State or regional environmental planning, the Minister may direct that such development may be the subject of an application for determination by the Minister. If the Minister grants consent, the person may carry out the development "despite any other provision of this Act or an environmental planning instrument" (s89(2)). · The protection of an existing use from the effect of an environmental planning instrument which would prohibit the use, applies only to the prior use of land "for a lawful purpose". (s106). 46 Finally, as the Privy Council identified in a seminal authority on this area of the law (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443), there is a distinction between a fact that is an "essential preliminary to the decision-making process" and a "fact … to be adjudicated upon in the course of the inquiry". (See also, e.g. Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd (1907) 5 CLR 33 at 53; Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 at 33.) 47 The word "preliminary" does not, in this context, refer to a chronological sequence of events, but to matter that is legally antecedent to the decision-making process. A decision-maker may well determine whether or not s/he has jurisdiction at the same time as s/he carries out the substantive decision-making process. 48 The extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional. (See Colonial Bank of Australasia v Willan at 443; R v Nat Bell Liquors Limited [1922] 2 AC 128 at 158; Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 300; Ex parte Hulin; Re Gillespie at 33; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 539; Timbarra Protection Coalition at [44] and [50]-[60]. See also M Aronson, "The Resurgence of Jurisdictional Facts" (2001) 12 Public Law Rev 17 at 34.) 49 A factual reference that is appropriately characterised as preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of the substantive decision-making process itself, is a reference of a character that the Parliament intended to exist objectively. 50 Section 79C of the Act makes provision for a consent authority to take into account a wide range of considerations when determining to grant or withhold consent under s80 of the Act. It is not necessary to set them out here. However, the particular facts and matters which determine whether the proposed development falls within a classification do not inevitably arise in the course of considering the exercise of the discretionary power to grant or withhold consent. The classification process is not only distinct but is extrinsic to the process of determining whether consent should be given. No doubt the features of the development that determine the classification have implications for the s79C considerations, but that does not mean that the classification is a matter upon which a consent authority must adjudicate when making a s80 determination. 51 Section 79C(1)(a)(i) requires a consent authority to take into consideration the provisions of any environmental planning instrument, but classification is not a part of the plan that arises during the course of the evaluation process. The determination of whether a particular development proposal answers the classification of "drive-in take-away establishment" appears to me to be a reference accurately described as either extrinsic or preliminary or ancillary to the exercise of the power to grant consent. It is not a matter that falls to be considered under s79C, in the course of making a determination under s80. 52 That this is so is strongly suggested by 77(a), quoted above, which provides that the Division, including all of the steps from s79A to s80, only applies if the development may not be carried on except with consent. Unless the development proposal can be accurately said to fall within the classification, none of the steps are applicable. In any event, in my opinion, classification is by its nature extrinsic or ancillary to the process of evaluation under s79C and s80. Indicators Against Jurisdictional Fact 53 The first factor which may support a conclusion that the appropriate classification of a proposed development is not jurisdictional concerns the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description. 54 In Shire of Perth v O'Keefe (1963) 110 CLR 529 at 535, Kitto J was concerned with an assertion of existing use rights, requiring the Court to determine whether a particular use was or was not "really and substantially a use for the … purpose" for which the property was being used as at the date on which a statutory prohibition came into effect. His Honour said at 535: "That will often be a question of fact and degree … and for that reason border-line cases will inevitably arise in which opinions will differ." (See also Lizzio v Ryde Municipal Council (1984) 155 CLR 211 at 217.) 55 That such considerations arise in the present case is confirmed by the judgment of Talbot J who said: "[26] … Obviously questions of fact and degree arise here. For example, it could not be said that the provision of a drive-in parcel pick-up area for a major department store would entitle that business to be regarded as a drive-in take-away establishment." 56 Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction. 57 Determining whether a factual reference is jurisdictional in the context of classification under an environmental planning instrument will depend on the way the classification is expressed. The degree of flexibility which the Act permits with respect to the description of uses is such that Parliament must be taken to have authorised the adoption of classifications which are not jurisdictional as well as those which are jurisdictional. 58 For example, an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. Such a decision-making process is unlikely to involve a jurisdictional fact. (See, e.g. the High Court's endorsement in Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 at 303-304 of the judgment of Black CJ in Australian Heritage Commission v Mount Isa Mines (1995) 60 FCR 456 at 465-466, an approach also affirmed in Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning (1999) 86 FCR 266 at 272.) 59 The decision to grant consent, which is based on a wide range of broadly stated considerations set out in s79C of the Act, is a decision of that character. In my opinion, the process of characterisation of a particular development of the character involved here is not. 60 It is not always the case that matters of judgment involved in determining the existence of facts, let alone matters of fact and degree, mean that the fact is not jurisdictional. For example: · whether or not a report about an employee was "substantially favourable" was found to be an objective test. (See Sutherland Shire Council v Finch (1969) 123 CLR 657 at 663-666 and see below Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315 at 324-325 per Mason JA as his Honour then was.) · whether development was "likely to significantly affect threatened species" was found to be jurisdictional. (Timbarra) · whether an industry was "likely … to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land" was found to be jurisdictional. (City of Enfield fn 16, [6] and [28].) · whether a particular service was "necessary" for the purpose of enabling the supply of a broadcasting service was jurisdictional. (Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [123]-[124].) · whether property "may be material as evidence in proving" an offence for which extradition is sought was jurisdictional. (Cabal v Attorney General (Cth) (2001) 113 FCR 154 at [19], [74]-[76].) · the High Court divided equally on whether or not a test expressed in terms of the existence of an "irregularity" constituted a jurisdictional fact. (R v Gray; Ex parte Marsh (1985) 157 CLR 351.) 61 In each case it was the overall statutory context that proved determinative as to whether or not Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed. 62 In the present case, the determination of whether a proposed development is a "drive-in take-away establishment" raises questions of fact and degree but not of such a character as to suggest that Parliament intended that such a characterisation should turn on the opinion of the consent authority. This may be an issue on which reasonable minds may differ, but there is nothing to suggest that the decision requires any particular expertise or local knowledge, let alone that it turns in any way on contestable value judgments. It is a conclusion about which an independent non-expert impartial observer could make an assessment as to whether it is right or wrong. It is not the kind of test which, by its very nature, is unlikely to be jurisdictional. 63 The most significant element suggesting that classification is not a jurisdictional fact arises from the degree of inconvenience that can arise if a consent which is valid on its face and, indeed, is entered upon a register of consents maintained by the Council under reg 264 of the Environmental Planning and Assessment Regulation 2000, cannot be relied upon either by the person receiving consent or by all those dealing with that person in relation to the land. 64 A development consent has an in rem quality and attaches to the land. (Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 at 279; Auburn Municipal Council v Szabo (1988-89) 67 LGRA 427 at 433-434; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407; House of Peace v Bankstown Municipal Council (2000) 48 NSWLR 498.) 65 Section 123 of the Act authorises any person to bring proceedings for an order to remedy or restrain a breach of the Act. If it were the case that a consent could be set aside at any time after its grant this would significantly inhibit the effective operation of the legislative scheme. 66 Of course the Court retains a discretion to grant relief which, in the case of delay, will frequently be denied. Nevertheless, with respect to the system of development consent of such wide-ranging significance, involving, as it no doubt does, thousands of decisions every year, a discretionary denial of relief appears to be an inadequate restraint. As McClellan J, Chief Judge of the Land and Environment Court, said in Hornsby Shire Council v Vitone Developments Pty Ltd (2003) 132 LGERA 122: "[58] Although the court maintains in all cases the capacity to ameliorate the consequences of a challenge by the exercise of its discretion … this can never be a complete answer to the problem. The mere prospect of a challenge will be enough to imperil many proposed developments. The principal, or the almost inevitable financier, may not invest where there is a prospect of litigation which, even if a challenge fails, will inevitably bring uncertainty and delay." 67 In my opinion, the determination of this question turns on the proper construction of s101 of the Act which provides: "101. If public notice of the granting of a consent … is given in accordance with the regulations by a consent authority … the validity of the consent … cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given." 68 I note that a register of consents is required to be kept by s100 of the Act and must be available for public inspection. The Effect of s101 69 Privative clauses are strictly construed. Accordingly, a clause which seeks to protect a "decision" or a "determination" is read down so that it does not have the effect of protecting a decision or determination affected by jurisdictional error. There is a long line of authority in Australia to this effect, commencing with Clancy v Butchers' Shop Employés Union (1904) 1 CLR 181 and Baxter v New South Wales Clickers' Association (1909) 10 CLR 114 and continuing with Brown v Rezitis (1971) 127 CLR 157, which has been frequently applied by intermediate courts of appeal. This line of authority has recently been reaffirmed in the authoritative joint judgment of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 70 Plaintiff S157 affirmed that a privative clause which protected "decisions made under this Act" did not protect decisions which involved a failure to exercise jurisdiction or an excess of jurisdiction (see at [72], [75], [76] and [89]). It is by no means clear that this formulation coincides with the matters identified as "jurisdictional errors" in administrative law. (See my address "Integrity and Privative Clauses", 2 September 2004, at pp18-23: accessible at www.lawlink.nsw.gov.au/sc). 71 The Parliament can make it clear that it intends a privative clause to protect decisions from invalidity for jurisdictional error, for example by adopting terminology which extends the protection to "purported decisions". (See Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 635; Mitchforce Pty Ltd v Industrial Relations Commission of NSW (2003) 57 NSWLR 212 at [62]-[65].) 72 Dr J Griffiths SC, who appeared for the Appellant on the hearing of the reconvened appeal, submitted that Plaintiff S157 was applicable to s101 on the basis that the word "consent" was equivalent to the word "decision" in the privative clause which the High Court determined in Plaintiff S157 did not extend to protect decisions from challenge based on a failure to exercise, or an excess of, jurisdiction. 73 The analogy between s101 and the section under consideration in Plaintiff S157, and the numerous cases which preceded it, is inexact. 74 First, there is a precondition to the operation of s101 that public notice of the granting of a consent is to be given. This precondition does reinforce the operation of the privative clause. 75 Secondly, there is no absolute bar. On the contrary, s101 permits any form of challenge within a specified time period. Although the time period may be regarded as short, that does not detract from the fact that, unlike Plaintiff S157 and the earlier decisions, there is no complete bar to legal challenge on the grounds of jurisdictional error. There is not the same compulsion to strictly construe the section by reason of the application of the principle of statutory construction that Parliament does not intend to deny access to the Courts save by clear and unmistakeable words. (See for example Magrath v Goldsborough Mort & Co Limited (1932) 47 CLR 121 at 128, 134.) 76 As I said with respect to the parallel provision in s35 of the Act, applying to a challenge to the validity of an environmental planning instrument, in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78: "[131] The fact that the legislative scheme permits unrestricted challenge for a period of three months from the date of promulgation of the environmental planning instrument, is, of course, an exceptionally significant aspect for its construction. The force of the principle of statutory construction to which I have referred above, that a statute which restricts access to the courts is construed strictly, must be attenuated by this fact. [132] Nevertheless the issue, as I have identified it above, is whether or not the particular conduct that is alleged to vitiate the exercise of the statutory power is such as to deprive a purported 'environmental planning instrument' of the quality of such an instrument for the purposes of s35. This question is not to be answered in the same way with respect to every basis on which such conduct can be challenged after the expiration of a three month period. The principle of statutory construction that such a provision must be strictly construed remains operative." 77 The third factor which differentiates s101 from the section considered in Plaintiff S157 is that s101 refers to questioning "the validity of the consent". It does not say that "the consent … cannot be questioned". In Plaintiff S157, and the long line of cases which it affirmed, the reference to "decision", or the other words equivalent to the word "consent" in the present case, was not qualified by a word such as "validity". 78 The word "validity" could refer only to the correctness of the decision made by a consent authority. It could be read down to apply only to errors within jurisdiction. (See, e.g. Ex parte Hulin; Re Gillespie at 33.) If s101 had constituted a complete bar, so that the principle that Parliament does not intend to deny access to the courts was given its full force, then I would have read down "validity" accordingly. 79 However, the word "validity" in s101, which permits challenge for a discrete period, is, in my opinion, intended to protect decisions from jurisdictional error. 80 The Parliament was well aware of the adverse consequences of uncertainty in this sphere of discourse. It balanced the conflicting elements by providing certainty, after a short period. The reference to "validity of a consent", identifying the kind of challenge protected by s101, does, in my opinion, extend to protection from jurisdictional error. In this regard it is analogous to an extension of a privative provision to a "purported consent". I would, accordingly, wish to qualify some of the views I expressed in Vanmeld supra at [121]-[127]. 81 As I set out in Mitchforce at [68], Plaintiff S157 affirms a number of propositions established by prior High Court authority as applicable where an issue arises concerning the interaction between a jurisdictional limit and a privative provision in an Act: • "The co-existence of two such provisions gives rise to an issue of inconsistency requiring reconciliation between the provisions (at [10], [17], [19], [58], [59], [60]). • The issue is one of statutory construction and all the relevant rules of construction apply, notably the rule that particular provisions must be construed in the context of the whole of the Act (at [17], [19], [26], [27], [33], [58], [72], [159]) and that one provision, including the privative provision, cannot be construed as controlling the meaning of the remainder of the Act ([35]). • A privative provision on its proper construction will not protect a 'manifest' defect, in the sense that a decision is not a bona fide attempt to exercise the power; that it does not relate to the subject matter of the legislation and that it is not reasonably capable of reference to the power given to the decision-maker ([13], [18], [56], [57]). • A provision containing a restriction or requirement may, on the proper construction of the Act as a whole including the privative provision, be construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is, as variously expressed in the authorities, 'essential', 'indispensable', 'imperative' or 'inviolable' ([20], [21], [26], [65], [66], [70], [76], [157], [159], [160])." 82 A view has been expressed that s35 and s101 or its predecessor should be construed to be a time bar clause and, accordingly, that no challenge of any character could occur after the expiration of the period. This was said to extend to exclude even the core basis for challenge identified in Australian jurisprudence as the Hickman principle (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) reflected in the third and, perhaps, the fourth bullet point of the previous paragraph. (See Breitkopf v Wyong Council (1996) 90 LGERA 269; a view accepted by Powell JA in Vanmeld at [189] and Sericott v Snowy River Shire Council (1999) 108 LGERA 66 at 67-78.) 83 I maintain the opinion I expressed in Vanmeld at [143]-[150] that the Hickman principle does apply, even after the expiration of the three month period. This appears to have become the preponderant view. (See Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs & Planning (1996) 90 LGERA 341; Wykanak v Rockdale City Council (1998) 100 LGERA 27; and the majority in this Court in Sericott at [37]-[41] per Beazley JA, with whom Handley JA agreed at [1]; see also Hornsby Shire Council v Vitone Developments at [52]-[58].) 84 There has been no suggestion in the present case that the privative clause could be overcome by operation of the threefold Hickman principle or by reason of an "imperative duty" or "inviolable restraint". Although there remains some scope for uncertainty, and therefore for inconvenience, because of the possibility that the privative clause may not apply, any uncertainty would be in a very narrow compass because of the restricted basis on which the Hickman principle applies. 85 Accordingly, the degree of inconvenience that may arise from a finding that the fact was jurisdictional is considerably attenuated by the strict time limit for challenge to a decision to grant consent. Conclusion on Jurisdictional Fact 86 Balancing the factors in favour of and those against a conclusion that the relevant classification is jurisdictional, leads me to conclude that it is. 87 The First Respondent commenced these proceedings within the three month period for which s101 provides. Therefore, the privative clause does not operate. 88 On the above analysis his Honour was correct to proceed on the basis that the issue of characterisation that arose involved a jurisdictional fact. Accordingly, his Honour had to determine the case on the basis of the evidence before the Court. He was not confined to the evidence before the Council as the primary decision-maker. (See, e.g. City of Enfield at [38] and [50].) His Honour was entitled to give weight to the opinion of the Council. (See City of Enfield at [45]-[50].) The Court did not receive any submissions that his Honour failed to do so in any relevant respect. In any event, his Honour had available to him significant additional evidence. 89 The grounds of appeal on the jurisdictional fact issue should be dismissed. Unreasonableness 90 After outlining his own reasons for coming to the conclusion that the development could not be characterised as a "drive-in take-away establishment", his Honour concluded, in the alternative, that the decision of the Council should be overturned on the basis of unreasonableness. The finding was expressed in one cryptic sentence. He said: "[31] … Moreover, I do not consider that any other conclusion based solely upon the documents before it was reasonably open to the council." 91 His Honour gave no reasons given for this conclusion. The reasons earlier expressed in his Honour's judgment did not distinguish in any respect between the documents available to him and the documents available to the Council. Although he purported to act only on the basis of documents before the Council, his Honour did not identify what aspects of those documents formed the basis of this conclusion. Nor did his reasons indicate why the conclusion on the more limited range of evidence, with respect to the proper characterisation of the development proposal, was overwhelmingly clear so that a decision to the contrary was so plainly incorrect as to satisfy the stringent requirements of the Wednesbury unreasonableness test. 92 I note that the submissions in this Court proceeded on the basis that his Honour's finding was based on Wednesbury unreasonableness. The Respondents did not rely on a test of manifest illogicality. (Cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 esp at [32], [37], [52], [73], [173] and [126]-[128], cf [9]. See also Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [57]-[66].) 93 This ground of appeal should be allowed. However, in view of the conclusion I have come to the jurisdictional fact issue, it is not necessary for the Respondents to rely on this alternative basis to support his Honour's orders. Factual Findings 94 Under the heading "Characterisation of the Development", his Honour set out the factual matters to which he had particular regard for that purpose: "[12] In an affidavit sworn in support of an application for the conditional removal of an off-licence in the Licensing Court of New South Wales Mr Hardy, the National Manager Licensing and Acquisitions of the third respondent, described the proposed layout of the premises as follows:- The premises are large (approximately 1,310 sqm which includes a total trading area of 978 sqm (including the drive-in area)) and can comfortably contain the liquor stock which will comprise approximately 5,000 items spread throughout the premises. By comparison, a typical traditional liquor store has a product range of between 1,200 to 1,300 items. By way of further comparison, there is a range of approximately 350 items which are common to all reasonably stocked liquor stores. [13] The Statement of Environmental Effects ("SEE") which supported the development application described the proposal as the use of existing premises as a ' Dan Murphy's drive-in takeaway liquor store ' . The concept of a Dan Murphy's operation was explained in the SEE as follows:- Dan Murphy Liquor Merchants was established in Victoria in 1878 and there are currently 9 outlets operating throughout Victoria…The Dan Murphy Liquor outlet displays and sells a wide range of liquor and has regular specials on market leader wines. The Dan Murphy Liquor outlet also focuses on service delivery by providing expert advice on all their products. [14] Notwithstanding contentions made to the contrary in the documents supporting the development application, the Court is entitled to conclude on the evidence before it that there will be provision for seven cars to park in the driveway serving area at any one time. The consent conditions require a minimum of 80 car spaces to be made available for the whole site, including the demand for about 39 spaces attributable to the subject development. Approximately one to four counter staff will be employed within the drive-in component of the store, whereas up to 35 staff will be required overall, according to demand. [15] Mr Hardy describes the layout of the store with gondolas and shelves located throughout the store in such a manner so as to allow easy access by customers in wide aisles using specially designed trolleys which cater for large and small purchases. The cool room comprises a 15 door width opening that allows customers access to the products contained in the cool room either by themselves entering the cool room or by use of the door opening. Mr Hardy also states that this Dan Murphy's store will also provide a two-lane 'drive-in' service where the staff will take and fill a customer's order alongside two cash registers positioned near the drive-in laneways. For the main part of the store, exiting customers will have a choice of up to six checkouts. [16] The plans approved by the council show that a customer can enter the store through the driveway car park, may leave the vehicle for a short period and enter the main store on foot. Alternatively, customers can park and wait in the vehicle until service is provided at the car window or leave the vehicle for a short period to select items from the shelves, refrigerated cupboards and displays that align the driveway. [17] It is proposed that wine tastings will be held at the premises and a delivery service with phone orders being taken will be available. [18] The plans lodged with the development application show that the drive-in facility will be operated as a separate entity, with separate stock, shelving, cash registers and staff. … [20] Clayton Luke Rowston is the National Property Manager Liquor and Petrol for the third respondent. In cross-examination he conceded he knew of no other Dan Murphy store with a drive-in facility at present although some large Woolworths did have one. He recognises that the decision to introduce the drive-in facility is directed at complying with the requirements of the LEP but that intention coincides with the business opportunity to maximise the generation of sales even if, as he admits, the evidence that there would be additional sales specifically attributable to the drive-in facility is, at this stage, speculative, tenuous and unsubstantiated. [21] There is a direct path of ingress and egress to and from the principal trading area through the drive-in area but the dedicated access to the major and primary display and sales area is quite distinct and will, on the Court's reading of the plans, present as a separate entrance. The driveway is constituted as part of the building but there will be separate racking and service facilities confined to the driveway area." 95 His Honour summarised his approach to the evidence as follows: "[23] The Court also accepts that the character of the development must be determined objectively by reference to such plans and material presented to the council in support of the development application as well as any extraneous material that can be relied upon and is relevant to determine whether or not the development, as it will in fact be carried out, is prohibited. If it is a development that is prohibited then not only did the council not have jurisdiction to receive and consider the development application, the decision to determine the application by a grant of consent is invalid." 96 His Honour assessed the facts in the following passage: "[27] Generally there can be no real doubt that a conventional suburban bottle shop that solely relies on a stand-alone drive through facility for access and sales answers the description in the LEP. A bottle shop or liquor store without any driveway access would obviously be characterised as a shop. [28] An establishment in day-to-day parlance is generally descriptive of a business or place of business. It is appropriate, therefore, to look at the entirety of the proposal to determine whether the whole business or enterprise will fall within the concept of the drive-in. [29] The whole enterprise cannot be regarded as one solely dependent on the drive-in facility. Obviously, the business is one of the take-away species. But so too is any other shop that deals in goods that are readily portable. I do not understand it to be contended by either respondent that the combination of parking spaces and the sale of readily transportable items, but without the drive through element as proposed, would comply with the statutory description in the LEP of a drive-in take-away establishment. [30] The substantial and dominant purpose of the proposed use as a conventional bottle shop comprised within the major and principal trading area. The drive-in is a feature of a convenience but it either operates separately as a distinct entity or it is a separate and distinct use. It does not provide the commanding and dominant feature that enables the business to be characterised wholly as a drive-in take-away establishment. At best it is a liquor store or bottle shop with an ancillary feature of a driveway or pick-up area … [31] The Court is not satisfied that it is correct to categorise the whole development as a drive-in take-away establishment given the predominance and concentration of the aspect of in-store selling that will occur. The drive-in aspect is truly a minor part of the overall establishment notwithstanding that it is nevertheless a prominent feature in what is otherwise a large-scale development … [32] The LEP expressly raises the concept of scale by reference to the prohibition of shops exceeding 90m² floor space. As mentioned earlier, the LEP reflects the classification of acceptable uses in town planning terms. It is clear the LEP did not envisage a large warehouse style liquor outlet in the zone. [33] Accordingly, I am satisfied that the drive-in aspect of the approved development is subordinate to the shop purpose of the Dan Murphy store. In that case, the drive-in use should be disregarded and the whole development regarded as a prohibited shop. If I am not right about that, nevertheless there are two distinct uses proposed for the site, neither of which subserves the other. A minor use is not to be ignored simply because it is minor and the fact that it is overshadowed by another use does not make it less a use ( Steedman and Another v Baulkham Hills Sire Council [No 2] (1993) 31 NSWLR 562). In the latter case, the use of the Dan Murphy store area is prohibited as a shop. [34] In either case, the council did not have jurisdiction to entertain the development application and, accordingly, the purported grant of consent is a nullity. Alternatively, the consent has been granted in respect of a prohibited development and, accordingly, is void and of no effect." The Approach to Characterisation 97 The Appellant submitted that his Honour erred in his approach to the characterisation task because his reasons manifest the application of inappropriate tests or the adoption of criteria which were impermissibly stringent. 98 The general approach to characterisation for planning purposes has often been stated in terms such as those adopted by Kitto J in Shire of Perth v O'Keefe at 535: "The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date." (See also Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 145-147; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310-311.) For present purposes it is unnecessary to consider whether a different approach is appropriate when determining existing uses, than that which is used when dealing with a development application. 99 The reasons of his Honour were, in my opinion, consistent with this approach. His Honour did apply the statutory formulation by asking whether, as a matter of ordinary English, the proposed development was a "drive-in take-away establishment". Each of the criticisms advanced in this regard should be rejected. 100 The Appellant relied on the reference in par [32] quoted above: "It is clear the LEP did not envisage a large warehouse style liquor outlet in the zone". It was submitted that his Honour must have approached the task of characterisation on the basis of an erroneous preconception that a "large warehouse style liquor outlet" was necessarily outside the designation of a "drive-in take-away establishment". Occurring as this reference does in the middle of his Honour's reasons and after his Honour had identified the nature of the development, it can hardly be said that this was in any way a "misconception". His Honour was contrasting a development in which the "drive-in" component was so significant that it could be used to characterise the nature of the development, with a quite different kind of development, namely a "large warehouse style liquor outlet" in which there was either no, or no significant drive-in, component. The distinction was pertinent. His Honour did not in terms characterise the development as a "large warehouse style liquor outlet" though, in my opinion, it would have been appropriate for his Honour to do so. 101 Criticism was then directed to that part of par [28] quoted above in which his Honour said that it was "appropriate … to look at the entirety of the proposal to determine whether the whole business or enterprise will fall within the concept of a drive-in". It was submitted that the reference to a "drive-in take-away establishment" did not require that the "whole business or enterprise fall within the purpose" and that accordingly his Honour applied a wrong test. In my opinion, his Honour was correct to say that it was appropriate to look at the entirety of the proposal for the purpose of characterisation. The "drive-in" element was of central significance for the characterisation task that his Honour had to perform. Like most retail establishments, where goods are not consumed on the premises, the "take-away" component was readily satisfied. The "drive-in" component was critical. In order to assess whether or not the development proposal could satisfy the relevant test it was essential for his Honour to assess the overall nature of the proposal without, to use the terminology of Kitto J in Shire of Perth v O'Keefe quoted above, conducting a "meticulous examination of the details of processes or activities". Indeed, if his Honour had not undertaken the task of assessing the proposal in its "entirety", in the way he did, he would have erred. 102 Criticism was then directed to his Honour's reference in par [29] that "[t]he whole enterprise cannot be regarded as one solely dependent on the drive-in facility" and the reference in par [30] that the drive-in component "does not provide the commanding and dominant feature" for the purposes of characterisation. It was submitted that neither of these matters was an essential requirement of a "drive-in take-away establishment" and that his Honour erred by applying an incorrect test in each respect. This submission removes the two references from the context of his Honour's reasons. It was clear that his Honour was not substituting for the statutory question some other question of whether or not the drive-in component was one upon which the whole enterprise was "solely dependent" or that it was a "commanding and dominant feature". Rather, his Honour identified the significance of the drive-in component in the development proposal as a relevant matter in the process of characterising the development. In my opinion his Honour was correct to do so. 103 No error is identified in the approach which his Honour adopted in determining the appropriate characterisation of the development proposal. Admissibility of Evidence 104 The next factual ground of appeal concerned the admission into evidence, over the objection of the Appellant, of certain material that was not before the Council during its decision-making process. It was submitted that even if the prior task of classification was a jurisdictional fact, this evidence was not admissible. The submission concentrated on the use to which his Honour put this material in pars [12], [14], [15], [17] and [20] of his judgment, as set out above. 105 A court which is reviewing a decision with respect to a jurisdictional fact must determine the matter on the evidence before the court and not on the evidence before the primary decision-maker. All of the authorities are clear on that. It is accepted in the joint judgment in City of Enfield (see esp at [24], [38]). Indeed, this was the very issue which was determined in Timbarra where the trial judge had refused to admit evidence about the fact found to be jurisdictional. (See Timbarra at [23]-[24] and [121].) See also D.M.W. v C.G.W. (1982) 151 CLR 491 at 510. 106 The submission appears to turn on a distinction between facts that were in existence as at the date of the determination of the development application by the primary decision-maker and facts which came into existence later. 107 The issue before the Court was how to characterise the development proposal. In order to determine that question it was plainly critical to identify with some precision how the building would be structured and how it would operate in practice. There is no reason why evidence of that matter should be confined to evidence that was in existence as at the date of the primary decision or to what was before the primary decision-maker. 108 It seems to me to be clear beyond argument that an affidavit sworn a month after the consent for purposes of an application to the Licensing Court by the Appellant's National Manager Licensing and Acquisitions, identifying the mode of operation of the proposed development, was highly probative of what was intended. Furthermore, it is probative of what was intended at the date of the development consent, if it were necessary, which I do not accept, to confine attention to that point of time. In any event, many of the facts contained in that affidavit to which objection is taken, being those identified in pars [12], [14], [15] and [17] of his Honour's judgment, are identifiable in, or can be inferred from, the plans and the Statement of Environmental Effects lodged with the development application. 109 The matter objected to in par [20] of his Honour's reasons is based on evidence by the Appellant's National Property Manager Liquor and Petrol given during the course of cross-examination in the trial. It was the Appellant that first adduced evidence from this witness and relied on his evidence about how the premises would operate. I do not see how the Appellant can object to his Honour referring to the cross-examination of this witness. In any event, the matter referred to in par [20] does not appear to have been of any significance in his Honour's reasoning at [27]-[34]. 110 It is unnecessary but pertinent to point out that in neither piece of evidence – neither the affidavit for the Licensing Court nor the evidence at the trial – was there any suggestion on the part of the Appellant that the identification of the modus operandi of the proposed development in either piece of evidence constituted a change from what had originally been proposed at the time of the development application. I do not think it would have been material if there was such evidence, but the submission put to this Court is insupportable, if for no other reason, by reason of the absence of such evidence, which was peculiarly within the knowledge of the Appellant. 111 Another reason for rejecting the submission could have been that it operated on the false premise that the only matter before the Court was the application to set aside the consent. That is not so. What was also before the Court was an application to restrain the Appellant from proceeding with the development on the basis of the consent. That order must be based on an assertion that the Appellant threatened to carry out prohibited development. I do not see any other basis for the order sought and made. That the proposal was prohibited was always the Respondents' case. Evidence of such a threat coming into existence at any time up to and including the trial would have been admissible. However, as the Respondents did not rely on such a characterisation for the relief sought, I do not decide this aspect of the case on this basis. Challenges to Factual Findings 112 The Appellant challenges his Honour's findings of fact which can be conveniently dealt with under three headings: · The number of car spaces · The number of staff · The degree of separation of the drive-in facility. 113 It was also submitted that each of these findings, said to be erroneous, was "critical to the trial judge's conclusion that the development was not to be characterised as for the purpose 'drive-in take-away establishment'". 114 The first challenge asserts that Talbot J found that the development would require the provision of 39 car spaces. This calculation, it was submitted, was based on the availability of 80 car parking spaces in a car parking area shared by the proposed development and by the adjacent Burger King and Kentucky Fried Chicken outlets. It was submitted that the 39 spaces were simply those left over from those not required by those other two businesses and that the number of spaces actually required by the development was less than 39. 115 His Honour's finding was not expressed in the form criticised in the submission. First, his Honour did not refer to a requirement of 39 car parking spaces. He said there was a requirement for 80 car parking spaces in the consent conditions which is correct (Blue AB 1, 195E). His Honour then referred to the fact that there would be demand for about 39 spaces attributable to the subject development. The previous consent for the other uses on the site attributed 41 spaces to the fast food outlets (Blue AB 1, 353P and Blue AB 1, 124N). The 39 spaces were simply a deduction from the total number of spaces to be provided by the proposed development. The traffic report submitted with the development application suggested that 30 spaces were required (Blue AB 1, 124U-V; see also Blue AB 2, 353S). Subsequently the Council's traffic engineer concluded that using an estimate of a maximum number of 32 customers on site at any one time would mean that, together with staff parking, "the 39 spaces available for the liquor store would be adequate" (Blue AB 1, 351R). A comparison with provision of spaces at a nearby liquor store suggested a need for 43 spaces of which seven would be in the driveway area (Blue AB 2, 353V). There was conflicting evidence on the issue of what the total demand for car parking spaces arising from the development would be. The thrust of the evidence was that the total number of 39 spaces would be adequate. 116 When his Honour came to the issue of characterisation of the development, nothing turned on the total number of 39 spaces other than perhaps the relationship between the seven spaces available for parking in the driveway and the total number of spaces available for parking in the general parking area that was shared with the fast food outlets. Although his Honour did not refer to this relationship in that part of his judgment where he undertook the characterisation task, it may well be that the insignificance of the number of car parking spaces in the drive-in area, compared with the number available in the general area, was given some weight. His Honour was, in my opinion, entitled to use this information in that manner. The alleged error, if any, with respect to the total demand for car parking spaces does not appear to play any particular role in his reasons. 117 The second alleged factual error was his Honour's reference in par [14] which the submissions state is to the effect: "That the development would employ 35 staff overall". What his Honour in fact said in par [14] set out above was that the development would require "up to 35 staff". This was based on the evidence in the affidavit prepared for the Licensing Court. There was other evidence suggesting that the total may be 26. (Blue AB 1, 220). No doubt for that reason his Honour did not make the definitive finding in the form suggested by the submission, but used the formulation "up to". 118 The thrust of the particular sentence in which the reference to "up to 35 staff" appears, is the comparison between that total and the approximate number of one to four counter staff to be employed within the drive-in component of the store. That estimate was accurately based on the Appellant's Statement of Environmental Effects (Blue AB 1, 66). It was not necessary, in order to make that comparison, for his Honour to determine a precise figure for the number of staff. Nor did he do so. He was entitled, however, to identify as he did, the fact that a small proportion of the staff was attributable to the drive-in component. 119 The final matter raised by way of challenge to his Honour's factual findings refers to a number of respects in which his Honour made reference to the separate nature of the drive-in component of the development. In par [18] of his judgment, as quoted above, he referred to the operation of the drive-in facility "as a separate entity, with separate stock, shelving, cash registers and staff". Furthermore in par [21] his Honour referred to the entrance to the major retail area as "quite distinct" and that it did "present as a separate entrance". He also said that the driveway involved "separate racking and service facilities". 120 In the passage of his Honour's judgment where his Honour expressed his conclusions on the characterisation issue he said at [30] that the drive-in component "either operates separately as a distinct entity or it is a separate and distinct use". His Honour concluded that the feature did not enable the business to be characterised as a drive-in take-away establishment and that the "substantial and dominant" use was a conventional bottle shop. 121 The nature of the proposal appears from the plans. It includes an area where liquor would be displayed and available for purchase in a self-serve display immediately adjacent to the driveway, on both sides of the driveway. There would be low rise shelves and refrigerators enabling persons who use the driveway to see above the shelving into the much larger display area of the establishment. At the two checkout registers immediately adjacent to the driveway there was a point at which persons could enter the larger area. The Applicant submits that the establishment would operate as a single integrated enterprise and that it was inaccurate to characterise the staffing, stocking and other arrangements as "separate", as his Honour did. 122 His Honour accurately identified a significant degree of separation. There were parking spaces, shelving and cash registers which were for the use of persons coming into the driveway. There is no suggestion that customers who entered the premises via the other entrance would use the low-level fridges, shelves or the checkout counters and staff located adjacent to the driveway. His Honour was correct to identify a degree of separation between the two parts of the establishment. This is the inevitable inference from the evidence and, in particular, from the plans lodged with the development application to which his Honour made reference in pars [16], [18], [21] and [23] of his judgment as quoted above. 123 It was submitted that persons who use the driveway component still had access to the general shop. On this basis it was submitted that the whole of the area was used as a "drive-in take-away establishment". This submission does have a tail wagging the dog element about it. His Honour was, in my opinion, entitled to find that the comparative insignificance of the drive-in element was such that it could not be used to categorise or classify the whole development proposal. Contrary to the thrust of this challenge to his Honour's fact finding, it was not appropriate to conclude that merely because the proposal was in some manner integrated that the minor element could be used to categorise the entire proposal. 124 The thrust of the Appellant's submission was to the effect that because of the degree of integration, the drive-in element could be used to categorise the whole development. Even if I had been minded to accept the Appellant's submissions that his Honour's emphasis on the degree of separation was in some manner misplaced, it would not, I believe, assist the Appellant in any respect. The overwhelmingly significant element in the enterprise is contained, as his Honour found, in the non-drive-in part of the development. 125 Accordingly, the greater the degree of integration, the more the characterisation of the development as being for a liquor shop, rather than for a drive-in take-away establishment, is appropriate. This is what his Honour found on the first basis on which he determined the case against the Appellant, namely that the whole development ought to be regarded as a prohibited use for a liquor shop. 126 In this regard his Honour's factual findings about the degree of separation do not appear to have played any role. It is the alternative basis on which his Honour found against the Appellant that the factual finding with respect to separation become significant, i.e. whether or not there was a development for two distinct uses. Even if that were the case, the use of the larger area as a liquor shop was prohibited. Accordingly, even if his Honour erred in specifying the degree of separation in his factual findings challenged under this ground of appeal, it would not avail the Appellant in these proceedings. The Condition Restricting Use 127 The Applicant relied on Condition H1 in the development consent which stated: "The premises shall not be used for any purpose other than that stated in the Development Application, i.e. the modification of the existing building and use of same for the purpose of a drive-in liquor outlet without the prior consent of the Council." 128 The Appellant submits that this condition ensures that the development as actually carried out would conform with the zoning. This submission has a charming bootstraps quality, but should be rejected. 129 First, the condition does not coincide with the zoning. It refers only to a "drive-in liquor outlet" without reference to the take-away element. 130 Secondly, it must be read together with Condition A1 which provides: "The development must be carried out only in accordance with the plans and specifications … stamped 'Approval' by Council and any supporting documentation received with the application, except as amended by the conditions specified hereunder." 131 Condition H1 is not, and was never regarded by either the Appellant or the Council as an 'amendment' of the development proposed in the plans. The Appellant has always contended, and still contends, that the plans were for the permitted use. 132 His Honour found, and I agree, that the dominance of the liquor shop over the drive-in component was such that the development could not be characterised as being for the permitted use. A "drive-in take-away establishment" connotes a use where patrons stay in or close to their cars. It is not the case that a shop with on site parking is sufficient. Notwithstanding the construction of the driveway into the building, the accurate characterisation of the whole development is as a liquor shop with on site parking. This is prohibited. 133 In order to convert the proposal into a "drive-in take-away establishment" the plans would have to be modified so substantially that the application would be fundamentally different. Accordingly, contrary to the requirement of s80(1)(a) of the Act, the condition would transform the consent into something other than a "consent to the application". (See Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737A-D, 740E-F; Winn v Director General of National Parks & Wildlife [2001] NSWCA 17 at [14]-[19], [125].) 134 The Appellant relied on Warehouse Group (Australia) Pty Ltd v Woolworths Limited [2003] NSWCA 270. That case did not involve the validity of the consent. The issue was whether the property was being used for a particular purpose. The approved plans contained features which would not have been consistent with the permitted use for "bulky goods". The plans were able to be read down by the condition restricting use to that purpose. In the present case the plans cannot be read in that way. Conclusion 135 The appeal should be dismissed with costs. 136 MASON P: I agree with Spigelman CJ. 137 Since I was a member of the Court that decided Londish v Knox Grammar School (1997) 97 LGERA 1 and Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333 I should pray in aid Bramwell B's statement that "the matter does not appear to me now as it appears to have appeared to me then" (Andrews v Styrap (1872) 26 LT(NS) 704 at 706. See also McGrath v Kristensen 340 US 162, 177-8 (1950) for a collection of additional judicial palinodes). 138 The reasons of Ipp JA in Chambers v Maclean Shire Council (2003) 126 LGERA 7 at 16 offer a powerful basis for reconsidering Londish. His Honour distinguished Londish because of changes in the Environmental Planning and Assessment Act 1979 made in 1998. I doubt however that those changes had material impact on the matter presently at issue (see Curry v Sutherland Shire Council (2003) 129 LGERA 223 at 230-1 per Spigelman CJ). 139 The Chief Justice's most compelling survey of principle, policy and precedent explains why Londish must be reconsidered and now departed from. 140 HANDLEY JA: In this appeal I have had the benefit of considering the draft reasons for judgment of the Chief Justice. I agree that the characterisation of the proposed development as a drive-in take-away establishment was a jurisdictional fact which the Land and Environment Court was entitled and bound to consider and determine for itself on the evidence before it. 141 In my judgment, and with all respect to those of a different opinion there is a fundamental distinction between a finding that a consent can be granted, and a finding that it should be. This consent could not lawfully be granted unless the proposed development was characterised as permissible with consent. This threshold enquiry is naturally and intrinsically jurisdictional. It is only if the proposed development is so characterised that the decision maker can consider the application on its merits and exercise its discretionary power to grant consent with or without conditions. 142 This threshold or preliminary enquiry (can I?) is legally and logically antecedent to and distinct from the merits enquiry (should I?). I would therefore join in dismissing the appeal. I agree with the reasons of the Chief Justice on the issues relating to jurisdictional fact, the challenges to the trial Judge's findings of fact, the characterisation of the development, the admissibility of evidence and the relevance of the condition. 143 Differing from the Chief Justice I would uphold the decision of the trial Judge, based on the plans submitted with the development application, that the Council's decision that the proposed development was for a drive-in take-away establishment was so unreasonable that it satisfied the Wednesbury test for invalidity. His Honour's reasons, although cryptic, impliedly incorporated his earlier findings based on the plans before the Council. 144 Again differing from the Chief Justice I would prefer to reserve any decision on whether a consent for prohibited development will always be protected by s 101 of the Act, and whether such a consent could be any answer to civil proceedings to restrain prohibited development in contravention of s 76B. These questions do not directly arise in this appeal and were not fully argued. 145 As at present advised I cannot see how a consent entitled to the protection conferred by s 101 could be any answer to proceedings for contravention of s 76B. Consents can be judicially reviewed on various grounds independently of any absolute prohibition on the development. There will still be substantial scope for the operation of s 101 even if a consent protected from direct challenge is no answer to proceedings for contravention of s 76B. 146 Moreover I am not presently satisfied that this consent would have been protected by s 101. I think it is arguable that the jurisdictional defect was manifest, that the consent was not reasonably capable of reference to the power to approve development for a drive-in take-away establishment, and that the requirement that the proposed development be permissible with consent is essential, imperative and inviolable. 147 None of theses issues strictly arise in this case because these judicial review proceedings were commenced within the three months period provided for in s 101. The proceedings were neither in form or in substance proceedings under s 76B for the direct enforcement of the prohibition. 148 The orders proposed by the Chief Justice should be made. 149 SHELLER JA: This appeal comes to this Court from the decision of the Land and Environment Court (Talbot J) upholding the respondent's appeal against Ashfield Municipal Council's consent to the appellant's development application. The development application described the proposal as: "Use of an existing 'My Car' building as a Dan Murphy Drive-In Takeaway Liquor Store. Demolition of a cafe building keeping some of the façade for signage addition of 4 parking spaces, landscaping." The proposed uses of the building/land were described as "Drive-In Takeaway Liquor Store". 150 The appeal was first heard in June 2004 by a Court comprising the President, Cripps AJA and myself. Subsequently, the appeal was re-listed and argued before a Court of five consisting of the Chief Justice, the President, Handley JA, Cripps AJA and myself so that further consideration could be given to whether Londish v Knox Grammar School (1997) 97 LGERA 1 was wrongly decided in the light of what had been said by the Court in Chambers v Maclean Shire Council (2003) 57 NSWLR 152, particularly at 159-160. Londish 151 In Londish the development application sought approval for extensions and alterations to buildings on land zoned Residential C under which "educational establishments" were permitted with consent but "boarding houses" prohibited. The council consented to the application for additional boarding accommodation and associated facilities for a total of 94 students and five staff on the basis that the extensions and alterations were used as an educational establishment. 152 Stein JA, with whose judgment Mason P and Meagher JA agreed, said at 8: "There is a line of authority in the Land and Environment Court commencing in 1986, to the effect that if the opinion formed by the decision maker was not vitiated by irrelevant considerations and one which was reasonably open to make, the court will not review the substance of the decision: see for example, Bentham v Kiama Municipal Council (1986) 59 LGRA 94, Leichhardt Municipal Council v Maritime Services Board (NSW) (1985) 57 LGRA 169 and other cases cited in the footnote. See also my article discussing the policy issues concerning agency deference 'Relationship of Tribunals to the Decision-Maker, Deference to Agency Expertise – The Experience of the Land and Environment Court in New South Wales'. In the circumstances of this case, it is apparent that the evidence and material before the council may have reasonably admitted to more than one conclusion. The decision reached by council to categorise the development as an 'educational establishment' and not a 'boarding house' was one which was reasonably open to it to make and within its discretion. Accordingly, in my opinion the council's decision is not reviewable by the court." Stein JA's reasoning was adopted by this Court in Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333. In that case at 336 I quoted and relied upon the above passage from his Honour's judgment. Timbarra 153 In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 the validity of a development application was challenged for the lack of a species impact statement. The court held that the question as to whether, pursuant to s77(3)(d1) of the Environmental Planning and Assessment Act 1979 (EPA Act), a species impact statement was required in accordance with the Threatened Species Conservation Act 1995 was to be construed as a jurisdictional fact (or condition precedent) which the Land and Environment Court had to determine for itself. At 66 the Chief Justice said: "51 In the present case, the location of the relevant factual reference in a statutory formulation concerned with the requirements of an application, is a significant factor suggesting that the factual reference is jurisdictional. 52 One formulation of the relevant distinction is whether the fact referred to is 'a fact to be adjudicated upon in the course of the inquiry' as distinct from an 'essential preliminary to the decision making process': Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443. 53 See also: '(a fact) which can only be determined as part of the general inquiry into the charge which is being heard': R v Nat Bell Liquors Ltd [1922] 2 AC 128 at 158; Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 300) or 'matters incidental to the exercise of the discretionary powers conferred': Tan Te Lam v Tai A Chan Detention Centre [1997] AC 97 at 112; or '… canvass in a judicial forum the very questions for which the [legislative regime] specifically establishes processes': Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 539. 54 The distinction is as propounded by Sugerman J in Ex parte Hulin; Re Gillespie (1965) 65 SR (NSW) 31 at 33; 82 WN (NSW) (Pt 2) 232 at 234: 'The questions upon which a court of limited jurisdiction may find it necessary to adjudicate in the course of an inquiry before it, may be classified for present purposes into two broad categories. Some relate to matters which are extrinsic to the subject matter of the inquiry itself but, by the terms of the conferment of jurisdiction, are essential to the competence of the court to undertake the inquiry and to carry it to a valid conclusion. Others, although related to the validity of the court's conclusion, are related to validity in a different sense. As to these validity refers only to the correctness of the court's conclusion, in the very inquiry which it was authorised to undertake , as an adjudication upon questions of fact and law which were properly before it for determination upon that inquiry.' (Emphasis added.) 55 In Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, the High Court rejected a submission that the exercise of a power to enter a place on the Register of the National Estate under s28 of the Australian Heritage Commission Act 1975 (Cth) turned on a jurisdictional fact relating to the actual quality of the land. However, the power was expressed in terms of whether the commission 'considers' that a place should be registered. Of course, every case turns on the particular statutory regime." Enfield 154 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 concerned the Development Act 1993 of South Australia which forbade the undertaking of any development not an approved development. The issue was whether an application to the Development Assessment Commission (DAC), "the relevant authority", by a company Collex Waste Management Services Pty Ltd (Collex) to alter and add to an existing liquid waste treatment plant was relevantly "general industry" or relevantly "special industry", a "non-complying" development for the purposes of the Act. Section 35(3) of the Act provided: "A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a provisional development plan consent unless - (a) where the relevant authority is the Development Assessment Commission – the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent; (b) in any other case – the Development Assessment Commission concurs in the granting of the consent." 155 If "general industry" the consent could be granted (as it was) without the concurrence of the Enfield City Corporation (Enfield). The DAC determined that the proposed development was "general industry". This meant that the Act did not require the DAC to refuse consent because Enfield had not concurred in it. The DAC granted Collex a provisional development plan consent to undertake the development and to use its land for the purpose of a liquid waste treatment plant. 156 According to the report of Enfield, neither Londish nor any of the cases cited by Stein JA in Londish, with the exception of Bentham, which was referred to in argument, were mentioned. Conceivably these cases may have been thought to be irrelevant and hence distinguishable. Nor was Timbarra referred to. At 148 four members of the Court, Gleeson CJ, Gummow, Kirby and Hayne JJ (Gaudron J gave separate reasons) said: ' ' Jurisdictional facts' 28 The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a ' non-complying ' development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ' non-complying ' development, which turned upon the application of the criterion of 'special industry', was a condition upon the existence of which there operated the obligation that the Commission not grant consent. 29 Collex contends that the refusal to grant consent by the Commission is required only if, upon the material before the Commission, it classifies the development as a ' non-complying ' development. A corollary of this proposition is said to be that, in any examination of the question in an action such as that before Debelle J, the court is restricted to the material that was before the relevant authority. 30 The ultimate question in the litigation before Debelle J was whether the prohibition placed upon Collex by s32 of the Act had not been lifted because the Commission had exceeded its powers by acting without the consent of Enfield to the proposed development. The effect of these submissions by Collex is that the answer depended, not upon the combined operation of fact and law, but upon the opinion on the matter of the Commission; an opinion based on the evidentiary material before the Commission. As counsel for Collex put it, this would still have left to the Supreme Court such questions as whether the Commission made the relevant assessment under s33, whether statutory procedures were followed, whether the granting of consent could be supported on any reasonable view of the factual material before the Commission and whether a substantial purpose actuating the Commission in granting consent was a purpose ulterior to that for which the Act granted the Commission its powers. 31 Counsel for Collex referred to s33 as throwing light on s35(3). The effect of s33 is to stipulate as necessary conditions for the lifting of the prohibition otherwise imposed by s32 upon development, (i) the granting of consent by the relevant authority after (ii) assessment by the relevant authority of the various matters specified in pars (a)-(f) of s33(1). The relevant authority may request of an applicant the provision of such additional documents or information as it 'may reasonably require to assess the application' (s39(2)(a)). The relevant authority may grant consent subject to such conditions as it 'thinks fit to impose in relation to the development' (s42(1)(a)). Where there is a right of appeal to the Environment Court, for example against refusal to grant a development authorisation or the imposition of conditions, the powers of that Court include confirmation, variation or reversal (s88(a)). 32 Section 35 occupies a position which is in the statutory scheme different to that occupied by these provisions. Unlike s33, s35 is not directed to what the Full Court identified as 'the planning merits' involved in the satisfaction of conditions for the lifting of the prohibition imposed by s32. Rather, s35 mandates circumstances in which the relevant authority must give (s35(1)) or refuse (s35(2), (3)) that consent. A development that is assessed by the relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent (s35(2)). This is subject to the requirement in s35(1) that consent must be granted if the proposed development is of a kind described as a complying development under the relevant Development Plan or the Regulations. Nothing for present purposes directly turns upon either sub-s(1) or sub-s(2), rather than sub-s(3). 33 However, taken as a whole, the text of s35 does not suggest that the determination whether, upon the criteria specified in s35, the responsible authority is or is not obliged to consent rests upon its own classification of the relevant circumstances. Rather, it indicates that it is not for the relevant authority itself to determine, as a matter of its opinion, whether the restriction imposed upon it by s35(3) applies because the development is a ' non-complying ' development. Section 35(3) does not define the criterion of operation as the opinion of the relevant authority as to the classification of the development. 34 Had s35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker. But that is not what s35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent." 157 Their Honours held, that in the result, the Full Court of the Supreme Court of South Australia had erred in holding that Debelle J was obliged to determine the action before him, not by application of the law to the evidence, but from a standpoint that, whilst the Supreme Court should "reserve the right to itself to inquire into the relevant facts and to decide the jurisdictional facts", it would defer "in grey areas of uncertainty to the practical judgment of the planning authority" and that what had to be shown was "a serious departure (in planning terms) from the requirements of the Act and Regulations". Their Honours said at 151 [38]: "It should be added that, contrary to the approach taken by the Full Court, in whatever form the proceeding in the Supreme Court had been cast, it would have been necessary for Debelle J to determine the 'jurisdictional fact' issue upon the evidence before the Supreme Court. " The High Court remitted the matter to the Full Supreme Court of South Australia for determination, inter alia, of the question whether the evidence before the trial Judge justified a finding of "special industry". Compromise was reached and the matter went no further. 158 The submissions in the High Court had referred to the doctrine of "deference", the Chevron doctrine (Chevron USA Inc v Natural Resources Defense Council Inc (1984) 467 US 837), developed in the United States, that courts should defer to administrative fact finding and to administrative interpretation of ambiguous legislation. The joint judgment at [39] – [48] rejected this doctrine. In R (Profile Alliance) v British Broadcasting Corp [2004] 1 AC 185 at 240 [75] Lord Hoffman said: "…although the word 'deference' is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening. In a society based upon the rule of law and the separation of powers, it is necessary to decide which branch of government has in any particular instance the decision making power and what the legal limits of that power are. This is a question of law and must therefore be decided by the courts." 159 While considering the notion of judicial deference, which her Honour considered to have very limited scope with respect to findings by an administrative body of jurisdictional facts, Gaudron J, who agreed with the orders proposed, said at 158 [60]: "Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility." 160 In Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] Hayne J said: "The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. … The former kind of error concerns departures from limits upon the exercise of power. The latter does not." Chambers 161 In Chambers, a council's grant of consent to the second and third opponents' application for development of a prawn and research station on their farm was challenged in class 4 proceedings brought in the Land and Environment Court on the ground that the development proposed was a prohibited development under the EPA Act to which the council had no power to consent. The Land and Environment Court rejected that contention. An appeal was brought to this Court. The basis of the challenge was that the development was not permissible because the proposed site did not meet the minimum performance criterion that it be within "an area" that was above 1 metre AHD [Australian Height Datum] as prescribed by cl 7 in Pt 2 of Sch 1 of SEPP 62", "sustainable aquaculture". The appellant submitted that about 40 percent of the second and third opponents' land was lower than 1 metre AHD and therefore as it did not meet the minimum performance criteria the proposed development was prohibited. The question before the Land and Environment Court (Sheahan J) was the meaning in context of the words "an area". Sheahan J held that "area" was not to be confined to the development site and meant the district or region. This was generally above 1 metre and below 10 metres AHD (the other criterion). This Court held that site specific AHD were required (168 [102]). Clause 6 of SEPP 62 provided that SEPP 1 had no application to aquaculture development under which compliance with a standard might have been dispensed with by the council or the Court. 162 At 158 Ipp JA, who gave the principal judgment, referred to what the Act describes as a three-fold classification in regard to the carrying out of developments and said that the third category, set out in s76B of EPA Act concerned developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent. His Honour said: "35 Section 4 of the Act defines a 'consent authority' in relation to a development application as: '(a) the council having the function to determine the application, or (b) if a provision of this Act, the regulations or an environmental planning instrument specifies a Minister or public authority (other than a council) as having the function to determine the application – that Minister or public authority, as the case may be.' 36 According to the Act, the only way in which a prohibited development may be the subject of a development application is pursuant to s89 (which is not within Div 2). Section 89(1) provides: 'The Minister may direct in writing, that specified prohibited development on specified land may be the subject of a development application for determination by the Minister if, having regard to matters that in the Minister's opinion are of significance for State or regional environmental planning, the Minister considers it is expedient in the public interest to do so.' Section 89(2) provides that, on the giving of a s89(1) direction, a person may make a development application to the Minister as consent authority for consent to carry out the prohibited development and the Minister may determine the development application. 37 In the present case, the Smiths made their development application to the Council, and not to the Minister. Under the Act, by reason of the provisions to which I have referred, the Council is not a consent authority for the purposes of a prohibited development. Only the Minister is a consent authority for such a development. A valid application for a prohibited development can only be made to the Minister. Thus, a development application to a council for a prohibited development is not an application in terms of the Act. 38 Accordingly, if the Smiths' development application was for a prohibited development, it was not an application in terms of the Act and the Council had no power to consent to it." 163 The argument advanced on behalf of the successful appellant in Chambers was that Sheahan J had erred in concluding that the principles laid down in Londish were applicable. Having regard to the particular legislation, there could only be one correct meaning of "area". The question of what "area" meant could not be answered on the basis that the council's construction was "reasonably open" but had to be answered by determining the correct meaning. 164 Ipp JA accepted the submission that the classification of a development, whether it was permissible or prohibited, had become "jurisdictional". His Honour said: "46 … The scheme of the Environmental Planning and Assessment Act relating to the three-fold classification of developments does not suggest that the determination whether an application for development is for a prohibited development (or one of the other two forms of development applications falling within Div 1 of Pt4 of the Act) rests upon a council's own classification of the relevant circumstances. Rather, it indicates that it is not for a council itself to determine, as a matter of its opinion, whether it has power to grant consent to a development application or whether only the Minister has such power: cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 149." 165 Ipp JA referred to the statement of Spigelman CJ in Timbarra at 65 that "if the factual reference is preliminary or ancillary to the exercise of a statutory power", the conclusion is likely to be a jurisdictional fact. The relevant factual reference was whether the minimum performance criteria were met. Ipp JA said: "Whether those criteria are met determines the character of the proposed development, namely, whether it is prohibited or not. That in turn determines whether the Council has the power to consent thereto. Thus, the factual reference is preliminary to the exercise of statutory power by the Council." On this basis, Ipp JA concluded that the reasoning in Londish did not apply. 166 Dr Griffiths SC, who appeared on the re-hearing for the appellant, submitted that the conclusion reached by Ipp JA that there was a significant change in the structure of the Act after 1 July 1998 which meant that the reasoning in Londish did not apply, misconceived the operation of the amended Act. I accept that submission and my own error in agreeing with Ipp JA on that point in Chambers. The Legislation 167 The stated purpose of the EPA Act was to institute a system of environmental planning and assessment for the State of New South Wales. That purpose is substantially achieved by Pt 3 "Environmental planning instruments" and Pt 4 "Development assessment". Section 26 in Div 1 "General" of Pt 3 sets out the contents of environmental planning instruments which are essentially to protect, improve or utilise to the best advantage the environment (subs (1)(a)). The note to Pt 4 states that environmental planning legislation comprises three elements, the Act, the environmental planning instruments and the regulations made under the Act. As Ipp JA had pointed out in Chambers and as the note makes plain, the legislative scheme for environmental planning control is, broadly speaking, distributed between the three elements as follows. Part 4 lays the foundation for the legislative scheme and contains the major concepts and addresses the major matters of principle. The environmental planning instruments identify particular forms of development according to the threefold classification that is established by Division 1 of Pt 4. 168 The first leg of that classification is described in s76, "Development that does not need consent", as that where an environmental planning instrument provides that specified development may be carried out without the need for development consent. In that case, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. Included in that category is exempt development. 169 The second leg of the classification is found in s76A "Development that needs consent", which states in subs (1) that, if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: "(a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument." Subsection (2) provides that for the purposes of subs (1), development consent may be obtained: "(a) by the making of a determination by a consent authority to grant development consent, …" 170 The third leg of the classification is s76B "Development that is prohibited" which states: "If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land." Section 76C "Relationship of this Division [Div 1] to this Act" provides that Div 1 is subject to the other provisions of this Act, unless express provision is made to the contrary. 171 Division 2 is headed "The procedures for development that needs consent" and includes s78A(1) "A person may, subject to the regulations, apply to a consent authority for consent to carry out development". 172 Division 4 is headed "Additional procedures concerning State significant development". Section 88A(1) enables the Minister to direct a council to refer a particular development application made to it for determination by the Minister if, having regard to matters that in the Minister's opinion are of significance for State or regional environmental planning, the Minister considers it is expedient in the public interest to do so. More important in the context of this appeal, is s89(1) which enables the Minister to direct in writing: "that specified prohibited development on specified land may be the subject of a development application for determination by the Minister if, having regard to matters that in the Minister's opinion are of significance for State or regional environmental planning, the Minister considers it is expedient in the public interest to do so." If such a direction is given and the development application is made to the Minister as consent authority, the Minister may determine the development application and may grant consent despite any other provision of the EPA Act or an environmental planning instrument. (Section 89(2)) 173 The language of such provisions, particularly s76B, suggests that a consent authority, other than the Minister, is not empowered to consent to prohibited development, as defined in s4. Discussion 174 The particular difficulty in a case such as the present derives from the need to determine whether the proposed Dan Murphy Drive-In Take-away Liquor Store is a "drive-in take-away establishment(s)" within the meaning of what under the Ashfield Local Environmental Plan 1985 was a permissible development with consent. If it did not answer that description the development was prohibited. Thus, if the council was wrong in concluding that the proposals satisfied the definition, it had consented to prohibited development. 175 The specific question for this Court is whether the reasoning in Londish remains good after the decision in Enfield or must be re-visited and further, whether the decision in Chambers accords with Enfield. If, as the appellant to the Land and Environment Court claimed, the council had consented to prohibited development, did it follow that the grant of consent was beyond the council's authority and was the Land and Environment Court correct in deciding that, on evidence put before it, or could the appeal only succeed if the opinion formed by the council that the development was not prohibited was vitiated by irrelevant considerations or was one not reasonably open to the council on the material before the council? 176 The appeal raises a significant question of convenience. If the council decision can be challenged, if the council's decision was reasonably open but incorrect, can it be challenged at any time? If so, the result would be uncertainty, at least arguably, not overcome by s101 of the EPA Act, which provides under the heading "Validity of development consents and complying development certificates": "If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court [the Land and Environment Court] by any person at any time before the expiration of 3 months from the date on which public notice was so given." Ashfield Local Environmental Plan 1985 177 The relevant part of the LEP followed cl 10, "Development control table", which provided that: "Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which- (a) development may be carried out without development consent; (b) development may be carried out only with development consent; and (c) development is prohibited, are specified under the headings "Without development consent", "Only with development consent", and "Prohibited", respectively, appearing in the matter relating to the zone." 178 The relevant zone was Zone No 3 (b) (Special Business Zone). Under that heading appeared relevantly "2 Only with development consent Boarding-houses; boat sales and services; caravan sales and services; car repair stations; car wash stations; child care centres; clubs; commercial premises other than those used for rag collecting and dealing; drive-in take-away establishments; dwellings used in conjunction with commercial premises; motels; motor showrooms; open space; parking; public buildings; refreshment rooms; roads; service stations; shops not exceeding 90 square metres floor space referred to in Schedule 3; taverns; tyre sales; utility installations (other than gas holders or generating works). 3 Prohibited Any purpose other than a purpose including in item 2." 179 The purposes set out in 2 are stated in very general terms. In many, a precise definition defies lexicography. In the case in point, "take-away" means an establishment where take-away food is sold as distinct from a restaurant or café where food is prepared to be eaten on site. If the concept extends to an establishment selling liquor, it means an establishment where liquor is sold and taken away by customers, that is to say any liquor store. Drive-in means catering for customers in cars, which might be thought to intend that customers are served in cars brought by them onto the premises. How does one balance between such customers and customers who leave their cars before being served or who park off the premises before entering the premises or customers who walk onto the premises before they are served? I am not comfortable with the idea that any Court can "correctly" determine whether an establishment, having the characteristics of the establishment here in question, is or is not a drive-in take-away establishment, except in the obvious case, as where customers proceed by car up a drive-way and are served food through the window of the car to be eaten off the premises. 180 There is much to be said, in my opinion, for the approach expressed by Stein JA in Londish. I accept, as the Chief Justice points out in his reasons for judgment, which I have had the benefit of reading, that in part Stein JA's conclusion may have flowed from an acceptance of the doctrine of deference which has now been rejected in the High Court. But the point Stein JA made is particularly true of the description of the development here in question. The decision by a council may not only be reasonably open but one regarded by many as correct. A contrary decision by a Court on review may also be no more than one reasonably open and thought by others to be correct. 181 However, I do not think there is any sound basis upon which I can distinguish the characterisation of the criterion which makes development here permissible, that is to say, use as a drive-in take-away establishment from the criterion of non-complying development in the Enfield case. Both are criteria, the absence or presence of which mandates, a particular outcome. As already pointed out, s76B of the EPA Act states that if an environmental planning instrument provides that a development cannot be carried out on land with or without development consent, and correctly the development proposed here was other than that of a drive-in take-away establishment, it is prohibited, regardless of consent. Thus, the council on that correct understanding of the meaning of the words had no power to consent to the appellant's application. 182 I otherwise agree with the reasons for judgment of the Chief Justice and the orders he proposes. 183 CRIPPS AJA: This is an appeal by Woolworths against a decision of Talbot J exercising the Class 4 Jurisdiction of the Land and Environment Court in which his Honour declared that a development consent granted to it by Ashfield Municipal Council (the Council) for a "drive-in take-away establishment" was void and of no effect. 184 A significant issue in the appeal is whether the characterisation of the nominated permissible use for which development consent was sought and given, namely, for a "drive-in take-away establishment" involved a "jurisdictional fact" with the consequence that it was for the Land and Environment Court itself on the evidence before it to determine whether the application was for a drive-in take-away establishment uninfluenced by the opinion of the Council. 185 His Honour held that it was a jurisdictional fact and that the proposed use was not, in his Honour's judgment, a drive-in take-away establishment. The opposing view, and the one advanced in the appeal by Woolworths, is that the legislature has left it to the Council to characterise the purpose of the use and a challenge to its decision is limited to what might be called the conventional grounds of judicial review referred to in the judgment of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 224. In this case, and on that basis, the challenge would limit the Court in the exercise of its jurisdiction, to enquiring into the reasonableness of the decision of the Council in the Wednesbury sense (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) but should not itself determine the existence or non-existence of the relevant fact or facts. 186 In this judgment I use the expression "jurisdictional fact" to refer to challenges in the first sense referred to above (and the one adopted by his Honour) and the words "conventional grounds of judicial review" to challenges in the second sense discussed in Peko-Wallsend. 187 The appeal was initially heard by Mason P, Sheller JA and myself. Later the appeal was relisted. That was because there appeared to be conflicting decisions of this Court concerning the nature of the issue before the learned trial judge of the Land and Environment Court – in Londish v Knox Grammar School (1997) 87 LGRA 1 it was held that the characterisation of the purpose of the use was to be determined on conventional judicial review grounds and Chambers v Maclean Shire Council (2003) 57 NSWLR 152 where it was said that the "classification of development" which would include the characterisation of purpose "has now become jurisdictional". A further question arose whether the decision of the High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 has the consequence that this Court is bound to conclude that the characterisation of the purpose of the use applied for was a jurisdictional fact. 188 The issue is not academic. There will, of course, be cases where a challenge would be successful on either ground. But if the Court is required to determine a jurisdictional fact it must do so on the evidence before it in the proceedings whereas if the challenge is limited to conventional grounds of judicial review the Court, when determining whether a conclusion was reasonably open to the Council, is confined to material actually and constructively before the Council at the time it made its decision. That, at least, is my understanding of the authorities. In this appeal Dr Griffiths on behalf of Woolworths has submitted that even if the fact to be determined is a jurisdictional fact the Court may not have regard to evidence that was not actually or constructively before the Council at the time it granted its consent. That submission, however, does not, as it seems to me, accord with the authorities. In a challenge based on jurisdictional fact which of course must necessarily happen after the Council has made its decision the Court may accept proof of facts that were in existence but could not have been known to the Council at the time of its decision. (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, Helman v Byron Shire Council (1995) 87 LGERA 349 and Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135). 189 Woolworths has also submitted that the trial judge made erroneous findings of fact having the consequence that the decision should be set aside even if his Honour was correct in his view that he was to determine a jurisdictional fact. 190 The learned trial judge held that if, contrary to the approach he had taken, he was bound to determine the matter on conventional grounds of judicial review (and in this case the only ground was Wednesbury unreasonableness) he was of the opinion that the challenge had been made out. The appellant submits that on that alternative basis the application should have been dismissed. 191 On 30 August 2002 Woolworths Ltd made application to the Council for development consent for "use of the existing Mycar building as a Dan Murphy drive-in take-away liquor store … demolition of a building keeping some of the façade for signage … addition of four parking spaces, landscaping". In its application and in answer to the question "what are the proposed uses of all parts of the building" the answer was "Drive-in take-away liquor store having a gross floor area of 1310 sq m". 192 Conformably with the Environmental Planning and Assessment Act 1979 (the Act) and the Regulation the application was accompanied by a Statement of Environmental Effects which included plans for the proposed use. Provision was made for a double lane entrance into and out of the premises allowing up to twelve vehicles to be within the area at any one time – six in each lane. 193 The assessment by the town planner which was before the Council when it granted its consent included the following statement: "The proposed use will involve the customer's vehicles entering the building through the drive-in component, parking in this area for a limited time and selecting their purchases from the counter staff. Alternatively, customers may park their vehicles in the car park and enter the building by foot". The town planner recommended consent be granted subject to conditions. 194 On 20 January 2003 the Council consented to: "Demolition of part of the existing café building with retention of front façades and construction and use of the building for a drive through liquor outlet and provision of associated signage". 195 There were two conditions attached to the consent relevant to the present litigation. The first was: "The development must be carried on only in accordance with the plans and specifications set out on drawings number 1, amendment G dated 15 April 02, number 5 amendment F dated 16/08/02 and number 8 amendment H dated 30/8/02 prepared for Woolworths Ltd and stamped "Approval" by Council and any supporting documentation received with the application except as amended by the conditions specified hereunder." 196 The second condition was in the following terms: (1) Approved use. The premises shall not be used for any purpose other than that stated in the Development Application, i.e. the modification of the existing building and the use of the same for the purpose of a drive-in liquor outlet without prior consent of the Council." 197 Under the Ashfield Local Environmental Plan 1985 (LEP) the subject land was zoned "3(b) (SPECIAL BUSINESS ZONE)". Certain development, not here relevant, was permitted without consent. Development that was permissible with consent was nominated as follows: "boarding houses; boat sales and services; caravan sales and services; car repair stations; car wash stations; childcare centres; clubs; commercial premises other than those used for rag collecting and dealing; drive-in take-away establishments; dwellings used in conjunction with commercial premises; motels; motor showrooms; open space; parking; public buildings; refreshment rooms; roads; service stations; shops not exceeding 90 sq metres of floor space referred to in Schedule 3; taverns; tyre sales; utility installations (other than gas holders or generating works)." All other innominate uses were prohibited. 198 On 16 April 2003 Pallas Newco Pty Ltd (Pallas) made application to the Land and Environment Court in its Class 4 Jurisdiction for a declaration that the development consent referred to above and issued by the Council was "void and of no effect" and an order that Woolworths be restrained from acting on it. 199 As I have said on 10 October 2003 Talbot J declared that the development consent was void and of no effect and made an order restraining Woolworths from acting on it. The learned trial judge held that he was to determine for himself whether the proposal was for a drive-in take-away establishment – the opinion of the Council that it was being irrelevant. In the course of so doing he had regard to material that was not before the Council and some of which had not come into existence until after the Council made its decision. 200 Although, as I have said, the learned trial judge was of the opinion that the application was not for a drive-in take-away establishment, he held that, if his approach be wrong in law, he would characterise the decision of the Council as being relevantly unreasonable in the Wednesbury sense. He said: "Moreover I do not consider any other conclusion based solely upon the documents before it was reasonably open to the Council." The learned trial judge did not, in his reasons, separate out and identify what material was available to the Council and what was not. This was probably because he saw the issue as being whether or not he considered the proposal to be for a drive-in take-away establishment and not whether it was open to the Council to come to that conclusion. 201 However in the present case it has been submitted by Pallas that should this Court determine that the characterisation of the purpose of the use for which permission was sought and granted was not a jurisdictional fact then it relied on the above finding by the learned trial judge as an alternative ground for declaring invalid the decision of the Council. If it be assumed that the material which the Court was bound to have regard to would have been different depending upon whether the challenge was a challenge to a jurisdictional fact or a challenge on conventional judicial review grounds the observations referred to above did not, in my opinion, amount to adequate reasons why the challenge should have been successful on conventional judicial review grounds. 202 Woolworths sought permission to carry out permissible development. It was not suggested that its application was a "sham". The consent given by the Council was, as I have said, attended by conditions that the premises could not used for any purpose other than a drive-in take-away establishment. The learned trial judge did not enlarge upon his view that Wednesbury unreasonableness had been established. However his reasoning was, in my respectful submission, open to challenge on the ground that he asked himself the wrong question. He appeared to ask himself whether what was proposed was relevantly a "shop" and he was influenced by the circumstance that it was not a shop referred to in Schedule 3 and, in any event, it exceeded a 90 sq m floor space. 203 However in my opinion the question he was required to ask himself was not whether it was a shop (which in common parlance it plainly was) but whether it was a drive-in take-away establishment and, in my opinion, it did not lose that characterisation because it could also be characterised as a shop. Nor, in my opinion, did it necessarily lose that characterisation because it occupied a large area. 204 The uses that were prohibited under the LEP were the innominate uses which were not nominated as permissible uses. His Honour, correctly in my opinion, applied the decision of Lloyd J in Giddings v Ashfield Council [1999] NSWLEC 238 and concluded that the drive-in take-away bottle shop was relevantly "a drive-in take-away establishment" and the nominated permissible use limiting such a use to take-away food outlets was not warranted. However thereafter his Honour characterised the proposed use by reference to dominant and servient purposes and whether in fact there were two uses (Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157). Moreover his Honour appeared to accept the submission that there was a different standard to be applied when a council was applying its mind to whether it should grant consent to permissible development as opposed to principles to be applied when characterising the nature of an existing use. 205 A council when considering the characterisation of a use for which development consent is requested is, of course, concerned with what is proposed to be done on the land. In doing so, in my opinion, the various tests referred to in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 and North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 provide guidance as to the task to be undertaken by the Council notwithstanding that the tests there set out were stated in the context of existing use rights. In Royal Agricultural Society after referring to the test to be applied McHugh J said with respect to existing uses: "Accordingly a test has been devised which requires the purpose of the use of the land to be described only at that level of generality which is necessary and sufficient to cover individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of the purpose in terms of detailed activities, transactions or processes which have taken place. But it is not so general that a characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities, transactions or processes as a class have made of the land." 206 In Boyts Kirby P (at 90E to F) referred to the fact that what was required was a determination of the "appropriate genus which best describes the activities in question". He continued: "In determining that genus attention should be focused on the purpose for which the determination is being made. That is a town planning purpose." 207 The learned trial judge admitted into evidence (which he was obliged to do bearing in mind his understanding of the task upon which he had embarked) material that was not before the Council when it granted its consent. Statements made by Mr Hardy in an application for a liquor licence after the grant of development consent could not have been before the Council. Nor could the evidence of Mr Rowston concerning proposed wine tastings or his opinion to the effect that the drive-in facility "coincides with the business opportunity to maximise the generation of sales." Moreover, in my opinion, even if the evidence referred to above was admissible on a conventional judicial review challenge it did not have the effect of establishing that the decision of the Council was relevantly unreasonable. 208 It was also submitted that the learned trial judge made findings that were erroneous or taken out of context. For example, his Honour referred to the presence of 39 car parking spaces without referring to the fact that these spaces in the complex of which the development formed part were present in any event. His Honour also found that the drive-in would operate as a separate facility with separate stock, shelving, cash register and staff notwithstanding that the plans which accompanied the application showed one integrated development and no provision was made in them for separate facilities not referable to the drive-in take-away establishment proposed. 209 It was submitted in argument that if the use for which permission was granted could be characterised as a drive-in take-away establishment it would follow that a take-away pick-up area in basement parking would have the effect of allowing the retail store from which the picked-up goods were purchased to be characterised as a drive-in take-away establishment. But that, in my opinion, would not be so. What allows the present purpose to be characterised as a drive-in take-away establishment is the circumstance that people can drive into and out of the premises at which liquor is sold. 210 It is correct, as his Honour observed, that what was proposed occupied a large area. His Honour attached some significance to its size. However the nominate purpose of use made no reference to size. Size was not a limiting factor for any of the permissible nominate uses otherwise than in the case of certain specified shops. Moreover many of the other permissible nominate uses would, in common parlance, be described as "shops" for example "tyre sales", "boat sales and services", "caravan sales and services". 211 Traffic would enter in and leave by two lanes and, as I have said, provision was made for twelve parking spaces in the lanes. The circumstance that people may walk to the store does not, in my opinion, mandate a conclusion that the Council was bound to reject the application because it was not a drive-in take-away establishment. 212 It is to be remembered that the application before the Land and Environment Court was for a declaration that the consent was void and an injunction restraining Woolworths from acting on it. It was not an application to the Court that although Woolworths had permission for a drive-in take-away establishment it was in fact using the premises for a purpose outside the use for which it had obtained planning permission. 213 Counsel for Pallas attached significance to the fact that when giving evidence the planner said in effect that he had not turned his mind to whether what was proposed might be comprised of two uses "namely a shop or liquor store" on the one hand and a "drive-in take-away establishment" on the other. 214 However, in my opinion no inference adverse to the validity of the consent can be derived from that answer. The planner was not required to turn his mind to whether or not, absent a permissible drive-in take-away establishment use, the premises could also be characterised as a shop. He was required to consider whether on his assessment of the material put forward the characterisation of the purpose of the use for which consent was sought was a drive-in take-away establishment. 215 In my opinion the ground of Wednesbury unreasonableness has not been made out. 216 The question remains, however, whether the decision of Talbot J should be set aside on the ground that he wrongly determined that the characterisation of the use was a "jurisdictional fact". If characterisation was a jurisdictional fact his Honour's finding was open and should not be disturbed. 217 In a series of cases in the Court of Appeal and in the Land and Environment Court it has been held that, generally speaking, the characterisation of the purpose of development does not involve a jurisdictional fact. That is to say, it has been held that on a proper construction of the planning legislation Parliament intended that the characterisation of the purpose of development was to be left to Council, the primary decision maker, and its decision would not be set aside otherwise than in accordance with conventional judicial review principles. (See Londish v Knox Grammar School (1997) 97 LGRA 1; Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGRA 333. See also Hunter Valley Vineyards Association v Council of the City of Cessnock [1998] NSWLEC 76; Wotton v Wingecarribee Shire Council (1989) 68 LGRA 38; Taylor v Hornsby Shire Council (1990) 69 LGRA 281 and Scott v Wollongong City Council [1986] NSWLEC 85). There have been other decisions (referred to by the Chief Justice) when the Court has determined for itself the characterisation of purpose. 218 I have not found the resolution of the question, whether the characterisation of purpose in the present case was a jurisdictional fact, an easy one. I was concerned that great inconvenience could follow if the opinion of the court could trump the opinion of a council, in circumstances where, as I thought, s 101 would have no operation – particularly in the light of the provisions of ss 123 and 124 of the Act. I thought there was much to be said for the view that the legislature had left the characterisation of purpose to the consent authority subject, of course, to Wednesbury unreasonableness. And that was my tentative view before the case was reargued before a bench of five. 219 I have now read the draft reasons of the Chief Justice concerning the effect and operation of s 101 and I am persuaded that his Honour's view is correct. I agree with the reasons of the Chief Justice and the order he proposes. ********** - 2 - Last Modified: 07/16/2007 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.