Lesnewski v Mosman Municipal Council [2005] NSWCA 99

Reported Decision : 138 LGERA 207

New South Wales Court of Appeal

CITATION: Lesnewski v Mosman Municipal Council [2005] NSWCA 99

HEARING DATE(S): 3 March 2005

JUDGMENT DATE: 6 April 2005

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 2; Tobias JA at 3

DECISION: (1) Appeal allowed in part; (2) Orders made by Pain J on 2 August 2004 with respect to the costs of the proceedings at first instance be set aside; (3) Declare that s 101 of the Environmental Planning and Assessment Act 1979 does not prevent the Land and Environment Court from determining whether the appellant was denied procedural fairness as alleged by her in her Amended Points of Claim dated 2 October 2002; (4) Order that the issue of whether the appellant was denied procedural fairness and, if so, what relief (if any) should be granted as a consequence thereof be remitted to the Land and Environment Court for determination; (5) Order that the costs of the proceedings to date before Pain J be determined by the Land and Environment Court at the conclusion of the remitter proceedings; (6) Order that the appellant pay the respondents' costs with respect to those grounds of appeal which were abandoned at the hearing of the appeal but that otherwise each party pay her, their or its own costs of the appeal

CATCHWORDS: ADMINISTRATIVE LAW - Judicial review - Privative clauses - Allegation of denial of procedural fairness - Whether s 101 of Environmental Planning and Assessment Act 1979 is a bar to challenge to validity of development consent on ground of denial of procedural fairness - Operation of the threefold Hickman principle - Breach of "imperative duty" or "inviolable restraint" - Whether procedural fairness is an "inviolable limitation or restraint". - ADMINISTRATIVE LAW - Judicial review - Jurisdictional facts - Validity of construction certificate - Requirement that there to be no inconsistency between construction certificate plans and development consent plans - Whether question of inconsistency was a jurisdictional fact. - COSTS - Whether costs orders in Court below should be disturbed - Costs where both sides partially successful on appeal.