Trives v Hornsby Shire Council [2015] NSWCA 158

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Trives v Hornsby Shire Council [2015] NSWCA 158 Hearing dates: 15 May 2015 Decision date: 11 June 2015 Before: Basten JA at [1]; Macfarlan JA at [63]; Meagher JA at [64] Decision: (1)Grant the applicant leave to appeal in each of the proceedings the subject of the judgment in the Land and Environment Court delivered on 20 October 2014. (2)With respect to each matter, allow the appeal and set aside orders (1) (answering the separate questions) and (3) (as to costs) made on 20 October 2014. (3)Order that the Council's applications to the Land and Environment Court be determined according to law. (4)Order the Council to pay the applicant's costs in this Court. Catchwords: ADMINISTRATIVE LAW – judicial review – grounds – jurisdictional fact – whether fact extrinsic to the power conferred on the decision-maker or part of the function conferred – whether validity of certificate depends on certifier's satisfaction that proposed development is a "complying development" – relevance of inconvenience and uncertainty as factors

APPEAL – interlocutory decision – determination of separate question – whether complying development certificates issued by accredited certifier invalid – whether characterisation of development as "complying development" a jurisdictional fact – issue clearly arguable – case of public importance – whether leave should be granted

CONSTITUTIONAL LAW – privative clause – State legislation limiting time for review of decision – whether limitation effective – whether limitation removes defining characteristic of Supreme Court – Environmental Planning and Assessment Act 1979 (NSW), s 101 – Kirk v Industrial Court of New South Wales [2010] HCA 1; 228 CLR 651 referred to