THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND ENVIRONMENTAL PLANNING LAW

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The “jurisdictional fact doctrine” in NSW local
government and environmental planning law
Ian Ellis-Jones* First published (2006) 12 LGLJ 16. All rights reserved.

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Errors made with respect to jurisdictional matters, including errors made with
respect to so-called “jurisdictional facts”, are reviewable for “jurisdictional error”.
A jurisdictional fact is some fact or fact situation which must exist in fact as a
condition precedent or essential prerequisite for the primary decision maker to
exercise its jurisdiction. Over the past 15 years NSW superior courts have
increasingly applied the so-called “jurisdictional fact doctrine” in local
government and environmental planning law cases. This article discusses a
number of important judicial authorities and seeks to identify what are the key
elements or indicators of the presence of a jurisdictional fact situation in a
particular statutory formulation. They include the interrelated elements of
“objectivity” and “essentiality”, the purpose of the formulation in the overall
legislative scheme, the inconvenience, if any, that may arise from the fact
situation being held to be jurisdictional, whether the fact situation occurs or
arises as a matter for consideration or as a matter to be ultimately adjudicated
upon by the tribunal of fact, whether the fact situation occurs or arises in the
actual formulation of the grant of substantive power to the tribunal of fact to
make the ultimate decision on the merits, and whether the fact situation occurs
or arises in a formulation requiring the formation by the tribunal of fact of a
specified mental state. Ultimately, it gets down to statutory construction and
legislative intention, with the reviewing court having the final say, at least on
those matters.

INTRODUCTION

The traditional 1 doctrine of jurisdictional error, in its modern form, of which the so-
called “jurisdictional fact doctrine” 2 forms part, can be traced from the 17th century
when it came to be used to control the activities of inferior courts and statutory

* Solicitor of the Supreme Court of New South Wales and the High Court of Australia, Senior
Lecturer, Faculty of Law, University of Technology, Sydney, and Consultant, Arraj Lawyers, Sydney.
1
There is also a doctrine of “broad” or “extended” jurisdiction error (cf “broad” of “extended” ultra
vires) pursuant to which (at least in its most fulsome application) all errors of law go to jurisdiction:
see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Re Racal Communications
Ltd [1981] AC 374; O’Reilly v Mackman [1983] 2 AC 237; Craig v South Australia (1995) 184 CLR
163.
2
Not all jurists accept that there it is a doctrine as such. For example, in Timbarra Protection
Coalition v Ross Mining NL (1999) 46 NSWLR 55 at … Spigelman CJ (Mason P and Meagher JA
concurring) stated [at 39]: “The academic literature which describes ‘jurisdictional fact’ as some kind
of ‘doctrine’ is, in my opinion, misconceived. The appellation ‘jurisdictional fact’ is a convenient way of
expressing a conclusion - the result of a process of statutory construction.”

2

tribunals. The doctrine is very similar to the doctrine of ultra vires 3 in its modern form
which, in the mid-19th century, became a means of ensuring that executive and
administrative authorities (particularly local government authorities) acted within their
powers. One doctrine speaks in terms of “jurisdiction”, the other in terms of “power”.

A jurisdictional error, 4 in traditional terms, is of 3 kinds: first, a want (or lack) of
jurisdiction; 5 secondly, an excess of jurisdiction; 6 and thirdly, a wrongful failure or
refusal to exercise jurisdiction. 7 However, as McHugh J pointed out in Public Service
Association of South Australia v Federated Clerks’ Union of Australia, South
Australian Branch 8 the phrases “want of jurisdiction” and “excess of jurisdiction” are
“not terms of art”. 9 His Honour went on to say that it is not uncommon for superior
courts to use the phrases interchangeably. 10 Thus, “acting without jurisdiction” may
connote either that the inferior tribunal had no power or authority at all to embark
upon making a decision ab initio or that, although it had such power or authority, it
had gone further than it ought to have gone.

In Baldwin & Francis Ltd v Patents Appeal Tribunal 11 Lord Denning said in obiter:

But an excess of jurisdiction in this sense is very different from want of jurisdiction
altogether which is, of course determinable at the commencement and not at the

3
The grounds of ultra vires and jurisdictional may appear to be “conceptually indistinguishable” but
the distinction between them is not merely terminological. Each ground has a different historical basis
and the bulk of the case law in Australia (if no longer in England) continues to treat them as
distinguishable. In addition, judicial review by way of jurisdictional error (particularly in relation to
decisions of inferior courts) generally has tended to be more restrained than that carried out pursuant
to the doctrine of ultra vires.
4
A non-jurisdictional error of law (being an error made within jurisdiction), in traditional terms, is any
other error of law. Under the traditional doctrine of jurisdictional law, a non-jurisdictional error of law is
unreviewable unless it appears plainly on the face of the record of the inferior court tribunal. In Craig v
South Australia (1995) 184 CLR 163 the High Court rejected expansive formulations of the record for
the purposes of certiorari and concluded that the record did not include the transcript of the earlier
proceedings, nor the reasons for the decision, unless they were actually incorporated in the court or
tribunal’s formal order or decision. See, however, s 69(4) of the Supreme Court Act 1970 (NSW)
which expressly states that, for the purposes of error of law on the face of the record, the face of the
record includes “the reasons expressed by the court or tribunal for its ultimate determination”.
5
See, for example, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co
Ltd (1953) 88 CLR 100; Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47; Potter v Melbourne and
Metropolitan Tramways Board (1957) 98 CLR 337.
6
See, for example, R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407.
7
See, for example, Public Service Association of South Australia v Federated Clerks’ Union of
Australia, South Australian Branch (1991) 173 CLR 132; Ex parte Minister for Corrective Services
(1993) 9 WAR 534.
8
(1991) 173 CLR 132.
9
(1991) 173 CLR 132 at 164.
10
(1991) 173 CLR 132 at 164.
11
[1959] AC 663.

3
conclusion of an inquiry (see R v Bolton [(1841) 1 QB 66; 113 ER 1054]). Whereas
an excess of jurisdiction is determinable in the course of, or at the end of the
inquiry. 12

In Parisienne Basket Shoes Pty Ltd v Whyte 13 Latham CJ had this to say:

It cannot be said that, whenever a court makes an erroneous decision, it acts without
jurisdiction. An order made without jurisdiction - as if a court of petty sessions
purported to make a decree of divorce - is not an order at all. It is completely void
and has no force or effect. 14

Lack of jurisdiction can occur where, for example, a tribunal with limited power
purports to deal with some subject-matter outside that power. In the 1680 case of
Terry v Huntington 15 it was held that a decision tainted by a so-called jurisdictional
error was void and that an action in trespass could be brought against any person
purportedly acting under the authority of the decision. Hale CB spoke of some of the
ways in which jurisdiction could be circumscribed:

And it is to be considered that special jurisdictions may be circumscribed 1. with
respect to the subject matter of their jurisdictions; 2. with respect to place; 3. with
respect to persons ... and therefore if they give judgment in a cause arising in
another place or betwixt private persons or in other matters all is void. 16

In Potter v Melbourne and Metropolitan Tramways Board 17 the High Court (per
Dixon CJ, Webb, Kitto and Taylor JJ) similarly said:

It is evident that the appeal board has a limited power and wherever those limits may
be drawn it seems impossible to suppose that it was intended that by its own
authority the appeal board should exceed them. 18

The appeal board, which had been constituted to hear appeals against “dismissals,
fines, deductions from wages, reductions in rank, grade or pay, or other
punishments”, lacked jurisdiction to hear the appellant’s purported appeal in respect
of his re-classification which was found not to be in the nature of a “punishment”. 19

12
[1959] AC 663 at 695. Lords Reid and Tucker regarded the terms as synonymous.
13
(1938) 59 CLR 369.
14
(1938) 59 CLR 369 at 375.
15
(1680) Hardres 480; 145 ER 557.
16
145 ER 557 at 559. See also Groenvelt v Burwell (1700) 1 Ld Raym 454 at 469; 91 ER 1202 at
1212; R v Inhabitants in Glamorganshire (1700) 1 Ld Raym 580; 91 ER 1287 at 1288.
17
(1957) 98 CLR 337.
1820
(1957) 98 CLR 337 at 343-4.
19
(1957) 98 CLR 337 at 344. See also Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47; Ex parte
Wurth; Re Flanagan (1958) 58 SR (NSW) 51.

4

In Welch v Nash 20 Lord Ellenborough similarly spoke in terms of a misconstruction
of the source of jurisdiction:

This is a question of jurisdiction ... Increasing the width of one old highway is neither
diverting another old highway nor making a new one and the justices cannot make
facts by their determination in order to give to themselves jurisdiction, contrary to the
truth of the case. 21

However, errors of law came to be classified according to whether or not they went
to jurisdiction. In that regard, the reviewing court in judicial review proceedings
traditionally has drawn a distinction between:

* unreviewable 22 matters of fact or law which are within the original decision
maker’s jurisdiction (commonly referred to as “matters going to the merits”
or “matters within jurisdiction”), that is, matters which the tribunal of fact
alone is to decide; and

* reviewable 23 matters of fact or law which are outside the original decision
maker’s jurisdiction (so-called “jurisdictional matters”), that is, matters
which have to be established either as a condition precedent for the
decision maker to exercise its jurisdiction or which otherwise have to be
satisfied in the course of exercising jurisdiction (being, in either case,
matters that by their nature are “extrinsic” or “ancillary” to the actual
process of consideration, evaluation, assessment and determination of the
ultimate matters to be adjudicated upon in the course of decision making).

Thus, in the 1668 case of Terry v Huntington 24 Hale CB spoke of the reviewing
court’s limited role in the following terms:

But if they should commit a mistake in a matter that were within their power, that
would not be examinable here. 25

20
(1807) 8 East 394; 103 ER 394.
21
103 ER 394 at 402-3.
22
In the absence of some statutory right of appeal or review.
23
Irrespective of the existence of some statutory right of appeal or review.
24
(1668) Hardres 480.
25
(1668) Hardres 480 at 483.

5

In Parisienne Basket Shoes Pty Ltd v Whyte 26 Dixon J (as he then was) pointed out
that:

... the clear distinction must be maintained between want of jurisdiction and the
manner of its exercise. Where there is a disregard of or failure to observe the
conditions, whether procedural or otherwise, which attend the exercise of jurisdiction
or govern the determination to be made, the judgment or order may be set aside and
avoided by proceedings by way of error, certiorari or appeal. But, if there be want of
jurisdiction, then the matter is coram non judice. It is as if there were no judge and
the proceedings are as nothing. They are void, not voidable: compare Case of the
Marshalsea (1612) 10 Co Rep 68b at 76a, 76b; 77 ER 1027. 27

The rationale for the distinction between want or lack of jurisdiction and the manner
of its exercise is that if the distinction were not made judicial review for excess of
jurisdiction would be tantamount to administrative review on the merits. 28 Thus, in R
v Bolton 29 Lord Denman stated:

The inquiry before us must be limited to this, whether the magistrates had jurisdiction
to inquire and determine, supposing the facts alleged in the information to be true ...
we must not constitute ourselves into a Court of Appeal where the statute does not
make us such. 30

Similarly, in R v Wakefield 31 Lord Mansfield spoke in terms of a lack of jurisdiction
arising out of a consideration of certain disputed facts:

This part of the case depends on the facts, for if the title actually came in question ...
then the justices had no jurisdiction. It appears on the affidavits that the title was not
in question. 32

In R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and
Draughtsmen of Australia 33 Fullagar J pointed out that:

... the important point is that the decision or finding with regard to the existence of
jurisdiction, whether it be affirmative or negative, stands in a radically different
position from a decision or finding given or made within jurisdiction on the merits of
the case. The latter is conclusive and binding subject only to any appeal that may be
given if no appeal is given, it is absolutely conclusive and binding. The former is not
conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It

26
(1938) 59 CLR 369.
27
(1938) 59 CLR 369 at 389.
28
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 389 per Dixon J.
29
(1841) 1 QB 66; 113 ER 1054.
30
113 ER 1054 at 1058.
31
(1758) 2 Kenny 164; 96 ER 1143.
32
96 ER 1143 at 1144.
33
(1950) 82 CLR 54.

6
34
is open, if it be negative and wrong, to mandamus.

JUDICIAL REVIEW OF JURISDICTIONAL FACTS

Errors made with respect to jurisdictional matters have always been reviewable for
“jurisdictional error”. This includes errors made with respect to so-called
“jurisdictional facts”. 35 A jurisdictional fact is some fact which has to exist as a
condition precedent, or essential prerequisite, for the decision maker to exercise its
jurisdiction. 36 The position was very clearly put by Coleridge J in Bunbury v Fuller: 37

Suppose a judge with jurisdiction limited to a particular hundred, and a matter is
brought before him as having arisen within it, but the party charged contends that it
arose in another hundred, this is clearly a collateral matter independent of the merits;
and on its being presented, the judge must not immediately forbear to proceed, but
must inquire into its truth or falsehood, and for the time decide it, and either proceed
or not proceed with the principal subject matter according as he finds on that point;
but this decision must be open to question, and if he has improperly either foreborne
or proceeded on the main matter in consequence of an error, on this the Court of
Queen’s Bench will issue its mandamus or prohibition to correct his mistake. 38

Thus, in Weaver v Price 39 the question whether certain land was within a particular
parish was held to be a jurisdictional fact. A wrong decision on that matter would
result in the invalidity of the rate levy. Similarly, the question of whether or not a
person was an occupier of land was also held to be a jurisdictional fact in Bristol v
Waite. 40 In White and Collins v Minister of Health 41 a local authority was empowered
by statute to compulsorily acquire land provided it did not form part of any “park,
garden or pleasure ground”. A purported exercise of the power was struck down as
having been made without jurisdiction on the basis that the subject land did form part
of a park. 42

34
(1950) 82 CLR 54 at 91. In this case it was suggested (at 92) that more weight ought to be
accorded to a decision of a tribunal where the collateral issue determinative of jurisdiction depends
for its answer upon a finding of fact (as opposed to some conclusion of law).
35
See, generally, L Pearson, “Jurisdictional Fact: A Dilemma for the Courts” (2000) 17 EPLJ 453; M
Aronson, “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17.
36
Professor Wade asserts that the distinction between jurisdictional facts and facts going to the
merits is necessary because a tribunal has the power to decide facts correctly or incorrectly within the
jurisdiction entrusted to it: see H W R Wade, Administrative Law (4th ed, 1977), 237-8.
37
(1853) 9 Ex 111; 156 ER 47.
38
(1853) 9 Ex 111 at 140-1.
39
(1832) 3 B & Ad 409; 110 ER 147.
40
(1834) 1 Ad & El 264; 110 ER 207.
41
[1939] 2 KB 838.
42
See also Hall v Manchester Corporation (1915) 84 L J Ch 732; Permanent Trustee Co of NSW Ltd
v Campbelltown Municipal Council (1960) 105 CLR 401.

7

In Parisienne Basket Shoes Pty Ltd v Whyte 43 Dixon J (as he then was) pointed out
that any matter can be made one of “jurisdictional fact” if that be the intention of the
legislature:

It cannot be denied that, if the legislature see fit to do it, any event or fact or
circumstance whatever may be made a condition upon the occurrence or existence of
which the jurisdiction of a court shall depend. But, if the legislature does make the
jurisdiction of a court contingent upon the actual existence of a state of facts, as
distinguished from the court’s opinion or determination that the facts do exist, then the
validity of the proceedings and orders must always remain an outstanding question
until some other court or tribunal, possessing power to determine that question,
decides that the requisite state of facts in truth existed and the proceedings of the
court were valid. Conceding the abstract possibility of the legislature adopting such a
course, nevertheless it produces so inconvenient a result that no enactment dealing
with proceedings in any of the ordinary courts of justice should receive such an
interpretation unless the intention is clearly expressed. 44

Where the tribunal of fact is vested with a jurisdiction which includes a jurisdiction to
determine whether, in effect, there is jurisdiction (in the sense of authority to act) in a
particular case, that is, a power to decide not only matters going to the merits but
also jurisdictional matters, the position can be more complex. In R v Commissioners
for Special Purposes of the Income Tax 45 Lord Esher said:

Where an inferior court or tribunal or body which has to exercise the power of
deciding facts is first established by Act of Parliament the legislature has to consider
what powers it will give that tribunal or body. It may in effect say that if a certain state
of facts exists and is shown to such tribunal or body before it proceeds to do certain
things, it shall have jurisdiction to do such things but not otherwise. There it is not for
them conclusively to decide whether that state of facts exists, and, if they exercise
the jurisdiction without its existence what they do may be questioned, and it will be
held that they have acted without jurisdiction. But there is another state of things
which may exist. The legislature may entrust the tribunal or body with a jurisdiction
which includes the jurisdiction to determine whether the preliminary state of facts
exists as well as the jurisdiction, on finding that it does exist to proceed further or do
something more. In the second of the two cases I have mentioned it is an erroneous
application of the formula to say that the tribunal cannot give themselves jurisdiction
by wrongly deciding certain facts to exist, because the legislature gave them
jurisdiction to determine all the facts including the existence of the preliminary facts
on which the further exercise of their jurisdiction depends. 46

43
(1938) 59 CLR 369.
44
(1938) 59 CLR 369 at 391. The approach of Dixon J (in which his Honour appeared to allude to the
existence of a possible presumption against a factual reference being a jurisdictional fact where
inconvenience would consequentially ensue) has been doubted by Handley JA in the NSW Court of
Appeal decision in The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA
376: see [14] per Handley JA, cf [134] per Basten JA.
45
(1888) 21 QBD 313 at 319.
46
(1888) 21 QBD 313 at 319. See also Ex parte Silk; Re Chapman Engine Distributors Pty Ltd (1939)
39 SR (NSW) 42 at 66; 56 WN 13 at 14 per Jordan CJ; Ex parte Redgrave; Re Bennett (1945) 46 SR
(NSW) 122 at 125 per Jordan CJ; R v Ludlow; Ex parte Barnsley Corporation [1947] 1 KB 634; Ex

8

A common way of conferring upon an inferior tribunal jurisdiction to, in effect,
determine its own jurisdiction (at least with respect to preliminary matters) is to
provide, in the empowering legislation, that the exercise of jurisdiction is conditional
upon the tribunal being of a certain mental state (that is, being “of the opinion” or
“satisfied” that a certain state of affairs exists). In a sense, the mental state is a
particular kind of jurisdictional fact, 47 and, despite what Lord Esher said about it
being erroneous to say that a tribunal cannot give itself jurisdiction (even wrongly) in
such circumstances, the courts have displayed a preparedness to intervene in
appropriate cases. For example, in Ex parte Wurth; Re Tully 48 Street CJ said:

It would be an extraordinary interpretation to put upon the section that the Board was
to have unfettered and unchallenged power to define the extent of its own
jurisdiction, and to give any decision or embark upon any proceeding without any
liability to correction. It is unlikely that the legislature would have conferred upon this
tribunal, two of whose members might have no knowledge of law whatever, the right
to determine questions of law and by such determination to extend indefinitely the
limits of the Board’s jurisdiction. 49

In R v Shoreditch Assessment Committee 50 Farwell LJ had this to say about the
matter:

Subjection in this respect to the ... [c]ourt is a necessary and inseparable incident to
all tribunals of limited jurisdiction; for it is a contradiction in terms to create a tribunal
with limited jurisdiction and unlimited power to determine such limit at its own will
and pleasure - such a tribunal would be autocratic, not limited - and it is immaterial
whether the decision of the inferior tribunal on the question of the existence or non-
existence of its own jurisdiction is founded on law or fact. 51

Accordingly, if, for example, the existence of jurisdiction or the exercise of
jurisdiction (or both) is conditional upon the existence of the formation of a subjective
opinion, if the opinion actually formed is incorrectly based in law, then the necessary
opinion does not exist. 52 In the landmark and oft-cited case of R v Connell; Ex parte

parte Moss; Re Board of Fire Commissioners of New South Wales (1961) 61 SR (NSW) 597 per
Kinsella J; cf Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-2.
47
See Craig, Administrative Law, 3rd ed (1994) at 368-370. See also Minister for Immigration and
Ethnic Affairs v Teo (1995) 57 FCR 194, 198; Australian Heritage Commission v Mount Isa Mines Ltd
(1997) 187 CLR 297; and Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at [42]
per Spigelman CJ.
48
(1954) 55 SR (NSW) 47.
49
(1954) 55 SR (NSW) 47 at 53.
50
[1910] 2 KB 859.
51
[1910] 2 KB 859 at 880.
52
A reference to subjective criteria (“opinion”, “satisfied”, etc) is usually one directed to the ultimate
question to be decided rather than to collateral or threshold issues: see, for example, R v Connell; Ex

9

Hetton Bellbird Collieries Ltd 53 Latham CJ, with whom the other members of the
High Court agreed, said:

Where the existence of a particular opinion is made a condition of the exercise of
power, legislation conferring the power is treated as referring to an opinion which is
such that it can be formed by a reasonable man who correctly understands the
meaning of the law under which he acts. 54

Further:

If the opinion which was in fact formed was reached by taking into account irrelevant
considerations or by otherwise misconstruing the terms of the relevant legislation,
then it must be held that the opinion required has not been formed. In that event the
basis for the exercise of power is absent, just as if it were shown that the opinion was
arbitrary, capricious, irrational, or not bona fide. 55

In other words, a superior court, in judicial review proceedings, will enquire into the
reasonableness of the tribunal’s opinion (in the Wednesbury sense). 56 In addition, a
tribunal’s decision on such a matter can still be reviewed for jurisdictional error
where the tribunal either rejects evidence, or makes a decision unsupported by the
evidence, in such a way as to indicate that the tribunal misunderstood the test it had
to apply in determining matters going to jurisdiction. 57 For example, in R v Australian
Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd 58 the
board was empowered to cancel or suspend the registration of an employer if after
an inquiry it was satisfied that the employer was “unfit to continue to be registered as
an employer” or had “acted in a manner whereby the proper performance of
stevedoring operations ha[d] been interfered with”. The High Court (per Dixon CJ,
Williams, Webb and Fullagar JJ, Taylor J delivering a concurring judgment) found

parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407.
53
(1944) 69 CLR 407.
54
(1944) 69 CLR 407 at 430.
55
(1944) 69 CLR 407 at 432 per Latham CJ. The grounds on which such judicial review may be
based are as set out in the grounds on which such review must be based are as set out by Gibbs J in
Buck v Bavone (1976) 135 CLR 110, 118-119 and subsequent authorities. (See Minister for
Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 257-277; Australian Heritage
Commission Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 301, 303; Bruce v Cole
(1998) 45 NSWLR, 184-187. See also Parramatta City Council v Pestell (1972) 128 CLR 305 at 323.)
56
See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. See
also Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 per Spigelman
CJ.
57
The rejection of evidence, or the reaching of a conclusion unsupported by the evidence, is not per
se an error of law: see Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. Nevertheless,
inadequacy of material to support the formation of some necessary “opinion” may support an
inference that the tribunal is applying the wrong test or is not in reality “satisfied” of the requisite
matters R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Ltd (1953) 88
CLR 100 at 120.
58
(1953) 88 CLR 100.

10

that there were no grounds for saying that the company was unfit or that it had acted
in a manner whereby the proper performance of stevedoring operations had been
interfered with. 59 In short, the power to cancel or suspend had not arisen “because
the conditions for its exercise [did] not exist in law and in fact”.60

Until fairly recent years, the concepts and language of jurisdictional error and, mores
specifically, jurisdictional fact were infrequently invoked in a local government
context. There, were, of course, some exceptions. 61 However, over the past 15
years the NSW Land and Environment Court and the NSW Court of Appeal have
increasingly applied the doctrine of jurisdictional error and the jurisdictional fact
concept in the contexts of local government and environmental planning law,
particularly where one or more of the following factors (which are not intended to be
exhaustive) are involved:

• where the administrative decision making process involves a number of
different steps or stages before the final decision is made;
• where the decision maker must decide, as a preliminary or threshold
question, whether there is an application that is capable of lawful
determination;
• where the decision maker must decide whether primary facts, fully found,
come within the ambit of a statutory description (particularly where facts
are involved that are an essential preliminary to the decision making
process and not otherwise the facts to be adjudicated in terms of the
ultimate decision or the “merit” issues to be weighed in the balance in
considering the matter and making the ultimate decision on the “merits”);
• where the characterization or categorization of a particular development in
concerned, and whether the exercise of characterisation or categorisation
requires consideration of matters relevant to the exercise of the decision

59
(1953) 88 CLR 100 at 120.
60
(1953) 88 CLR 100 at 120. Similarly, in Byron Shire Businesses for the Future Inc v Byron Council
& Anor (1994) 84 LGERA 434 it was held that where there is only one conclusion reasonably open to
the tribunal on the facts and a contrary opinion has been reached as to some matter in the nature of a
precondition for the exercise of a power, the exercise of the power is null and void. (See also Hope v
Bathurst City Council (1980) 144 CLR 1.)
61
See, for example, Permanent Trustee Co of NSW Ltd v Campbelltown Municipal Council (1960)
105 CLR 401).

11

maker’s power once properly engaged;
• where the legislation evinces a legislative intention that the absence or
presence of some fact or fact situation will invalidate action under the
statute.

THE CORRECT APPROACH

The definitively authoritative statement of what is meant by the expression
“jurisdictional fact” is contained in the joint judgment of the High Court in Corporation
of the City of Enfield v Development Assessment Commission: 62

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. 63

In that case, the company Collex Waste Management Services Pty Ltd had applied
to the South Australian Development Assessment Commission for consent to make
certain alterations and additions to an existing liquid waste treatment plant within the
Enfield local government area. The Commission, being the relevant consent
authority, was duty bound to consider the development application against the terms
of the relevantly applicable development plan. Under that plan the proposed
development was for the purpose of “special industry”, and such development was
prohibited by the plan. The proposed development would also constitute a “non-
complying development”. This meant that no consent could issue unless certain
concurrences were also given, including one from the local council, Enfield
Corporation. 64 In addition, pubic notice was also required. However, the Commission
treated the development as “general industry”, which required neither public notice
nor the concurrence of the local council.

In a joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ, the High Court
stated:

62
(2000) 199 CLR 135.
63
(2000) 199 CLR 135 at 148 [28]
64
The relevant statutory provision was in s 35(3) of the Development Act 1993 (SA) which stated that
a development that was of the kind described as non-complying “must not be granted a consent
unless … .”

12

Section 35(3) [of the Development Act 1993 (SA)] 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. 65

In other words, the question whether or not the proposed development was “non-
complying development” was a question of jurisdictional fact, the relevant indicators
being, firstly, the prohibition itself of the development, and secondly, the express
statutory provision stating that the consent authority “must not grant” consent except
where otherwise allowed by the legislation. 66 The answer to the jurisdictional fact
question did not depend upon the opinion of the consent authority or any other
person or body involved in the decision making process. It was not a question of
opinion at all. Indeed, the reviewing court, exercising its inherent supervisory
jurisdiction in judicial review proceedings, 67 was duty bound to decide the matter for
itself. In the opinion of the court:

The result is that the Full Court [of the Supreme Court of South Australia] erred in
holding that Debelle J [the primary judge] 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 [Development] Act
and Regulations". 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. Accordingly, the matter will have to be returned
to the Full Court for determination of the outstanding issues on the appeal from
Debelle J to that Court. 68

Their Honours discussed the United States concept of judicial deference to

65
(2000) 199 CLR 135 at 148 [28], original emphasis.
66
See Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 717 per Spigelman CJ.
67
See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-1 where Mason J
(as he then was) pointed out: “The limited role of a court reviewing the exercise of an administrative
discretion must constantly be borne in mind. It is not the function of the court to substitute its own
decision for that of the administrator by exercising a discretion which the legislature has vested in the
administrator. Its role is to set limits on the exercise of the discretion, and a decision made within
those boundaries cannot be impugned … .”
68
(2000) 199 CLR 135 at 151 [38], fns omitted.

13
69
administrative jurisdictional fact finding, before stating that there was no place for
any such deference here with respect to the determination of jurisdictional facts by a
superior court (in this case, the Supreme Court of South Australia):

The weight to be given to the opinion of the tribunal in a particular case will depend
upon the circumstances. These will include such matters as the field in which the
tribunal operates, the criteria for appointment of its members, the materials upon which
it acts in exercising its functions and the extent to which its decisions are supported by
disclosed processes of reasoning. …

Where the question is whether the tribunal acted within jurisdiction, it must be for the
court to determine independently for itself whether that is the case. 70

Gaudron J agreed with the majority, making it clear that the matter was ultimately
one of “accountability”:

The other factor that informs comprehensive statutory schemes for the review of
executive and administrative decisions is what is sometimes referred to as
"accountability". In this context, "accountability" can be taken to refer to the need for
the executive government and administrative bodies to comply with the law and, in
particular, to observe relevant limitations on the exercise of their powers.

Those exercising executive and administrative powers are as much subject to the law
as those who are or may be affected by the exercise of those powers. It follows that,
within the limits of their jurisdiction and consistent with their obligation to act judicially,
the courts should provide whatever remedies are available and appropriate to ensure
that those possessed of executive and administrative powers exercise them only in
accordance with the laws which govern their exercise. The rule of law requires no
less. 71

In a previous NSW Court of Appeal decision, Timbarra Protection Coalition v Ross
Mining NL, 72 the court, in judicial review proceedings, was called upon to scrutinize
the lawfulness of a decision made by a local council to grant development consent
pursuant to the Environmental Planning and Assessment Act 1979 (NSW) (the “EPA
Act”) in circumstances where it was alleged that a species impact statement -
required as a matter of law where, relevantly, the development was “likely to
significantly affect threatened species” - ought to have been so submitted but had
not. The court held that the issue of whether the proposed development was “likely

69
The US approach is known as the Chevron doctrine, after Chevron USA Inc v Natural Resources
Defense Council, Inc 467 US 837 (1984).
70
(2000) 199 CLR 135 at 154-5 [47-8], fns omitted.
71
(2000) 199 CLR 135 at 157 [55-6], fns omitted.
72
(1999) 46 NSWLR 55; 102 LGERA 52.

14

to significantly affect threatened species” involved a question of jurisdictional fact.
Spigelman CJ (Mason P and Meagher JA concurring) stated:

The issue of jurisdictional fact turns, and turns only, on the proper construction of the
Statute. (See eg Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The
Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must
exist in fact (“objectivity”) and that the legislature intends that the absence or presence
of the fact will invalidate action under the statute (“essentiality”). …

“Objectivity” and “essentiality” are two interrelated elements in the determination of
whether a factual reference in a statutory formulation is a jurisdictional fact in the
relevant sense. They are interrelated because indicators of “essentiality” will often
suggest “objectivity”.

Any statutory formulation which contains a factual reference must be construed so as
to determine the meaning of the words chosen by Parliament, having regard to the
context of that statutory formulation and the purpose or object underlying the
legislation. There is nothing special about the task of statutory construction with regard
to the determination of the issue whether the factual reference is a jurisdictional fact.
All the normal rules of statutory construction apply. The academic literature which
describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion,
misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a
conclusion - the result of a process of statutory construction.

Where the process of construction leads to the conclusion that Parliament intended
that the factual reference can only be satisfied by the actual existence (or non-
existence) of the fact or facts, then the rule of law requires a Court with a judicial
review jurisdiction to give effect to that intention by inquiry into the existence of the fact
or facts.

Where the process of construction leads to the conclusion that Parliament intended
that the primary decision maker could authoritatively determine the existence or non-
existence of the fact then, either as a rule of the law of statutory interpretation as to the
intent of Parliament, or as the application of a rule of the common law to the exercise
of a statutory power - it is not necessary to determine which, for present purposes - a
Court with a judicial review jurisdiction will inquire into the reasonableness of the
decision by the primary decision maker (in the Wednesbury sense), but not itself
determine the actual existence or non-existence of the relevant facts. 73

What about the position where, as discussed earlier, there is a subjective grant of
jurisdiction, that is, where the statute provides that the exercise of jurisdiction is dependent
upon the formation by the decision maker of a certain “opinion” or “belief” or the decision
maker being “satisfied” that a certain state of affairs exists? Spigelman CJ had this to say
about the matter:

Where a factual reference appears in a statutory formulation containing words
involving the mental state of the primary decision maker - "opinion", "belief",

73
(1999) 46 NSWLR 55 at 63-4 [37-41].

15
"satisfaction" - the construction is often, although not necessarily, against a conclusion
of jurisdictional fact, other than in the sense that that mental state is a particular kind of
jurisdictional fact. … Where such words do not appear, the construction is more
difficult. 74

The Chief Justice also gave some pointers as to how best to respond to what are
potentially jurisdictional fact situations but which otherwise have the character of
“matters for consideration” or matters to be taken into account in the considering and
deciding a particular matter:

The authorities suggest that an important, and usually determinative, indication of
parliamentary intention, is whether the relevant factual reference occurs in the
statutory formulation of a power to be exercised by the primary decision maker or, in
some other way, necessarily arises in the course of the consideration by that decision
maker of the exercise of such a power. Such a factual reference is unlikely to be a
jurisdictional fact. The conclusion is likely to be different if the factual reference is
preliminary or ancillary to the exercise of a statutory power. The present case is, so far
as I have been able to discover, unique in that the one statutory regime contains the
same factual reference in both kinds of provisions. 75

However, each case turns on the wording of the particular statutory formulation.
Thus, in Franklins Limited v Penrith City Council 76 the NSW Court of Appeal had to
consider cl 32(2) of Penrith Local Environmental Plan No 231 which permitted a
person, with the consent of the council, to carry out development for the purposes of
a wholesale and retail warehouse on land to which the clause applied “but only if”
the council was “satisfied” that not less than 60 percent of the goods sold from the
land would be resold by retail after being removed from the land. At [23] Stein JA
(Powell and Giles JJA agreeing) noted that the above mentioned provision had the
effect that the subject development was prohibited unless the Council formed the
opinion required by the subclause. At [28] his Honour stated:

74
(1999) 46 NSWLR 55 at 64 [42]. It was held in Minister for Immigration and Ethnic Affairs v Eshetu
(1999) 162 ALR 577 that a jurisdictional fact could include an opinion or state of satisfaction.
However, as Spigelman CJ pointed out in Timbarra [at 46 NSWLR 55 at 66 [55]], “every case turns
on the particular statutory regime.” For example, in Australian Heritage Commission v Mount Isa
Mines Ltd (1997) 187 CLR 297, the High Court rejected a submission that the decision whether or not
to enter a place on the Register of the National Estate under s 28 of the Australian Heritage
Commission Act 1975 (Cth) involved a question of jurisdictional fact. In that case, the exercise of the
statutory power was predicated upon whether the Commission "considered" that a place should be
registered. That required the assessment of a wide range of matters of considerable complexity
involving the formation of value judgments. As Spigelman CJ pointed out in Woolworths Ltd v Pallas
Newco Pty Ltd (2004) 61 NSWLR 707 at 719 [58], “[s]uch a decision-making process is unlikely to
involve a jurisdictional fact”.
75
(1999) 46 NSWLR 55 at 65 [44], emphasis added.
76
[1999] NSWCA 134.

16

… What is here involved is a question of power. If the pre-condition in cl 32(2) was not
satisfied, then Council had no power to grant consent. The existence of the mental
state of satisfaction is an “essential condition” or preliminary to the exercise of the
power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection
Coalition Inc v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paras 42 and
94. Accordingly, the Land and Environment Court and this court on appeal can review
whether the Council held the requisite satisfaction. …

Nevertheless, the legal position can vary where there is available, either in the
enabling statute or in some other statute or statutory instrument, a statutory facility
that would operate to alleviate or obviate the need for strict compliance with what
might otherwise involve a jurisdictional fact situation. In the Franklins case the issue
before the reviewing court was simply whether the necessary statutory precondition
had been satisfied. However, in Wingecarribee Shire Council v Pancho Properties
Pty Ltd 77 the NSW Court of Appeal was called upon to determine whether 2
provisions of Wingecarribee Local Environmental Plan 1989 (viz cl 13(3) and (4))
were “development standards” within the meaning of the EPA Act. (If they were
development standards, then the person seeking to carry out the development could
lodge with the consent authority a written objection under State Environmental
Planning Policy No 1 - Development Standards (“SEPP 1”) that compliance with
those development standards was unreasonable or unnecessary in the
circumstances of the case, specifying the grounds of that objection.)

The first provision permitted the erection, with consent, of a dwelling-house “but only
if” the land had an area of not less than 40 hectares. The second provision provided
that not more than 2 additional dwelling-houses could, with consent, be erected on
certain land having an area not less than 40 hectares if the council was “satisfied” as
to certain specified matters. Giles JA (Heydon JA and Young CJ in Eq agreeing)
concluded that the 2 provisions were development standards amenable to objection
under SEPP 1. 78 In the view of the court, although the provisions were worded in
prohibitory terms they were regulatory of otherwise permitted development and did

77
(2001) 117 LGERA 104.
78
This had also been the view of the primary judge (Talbot J): see Pancho Properties Pty Ltd v
Wingecarribee Shire Council (1999) 110 LGERA 352. The decision of Lloyd J in Dixon v
Wingecarribee Shire Council (1999) 103 LGERA 103, in which his Honour held that the very same
provision was not a development standard, must now be considered to be wrong.

17

not amount to “absolute prohibitions”. The court applied Strathfield Municipal Council
v Poynting 79 in which Giles JA (Heydon JA and Young JA in Eq agreeing) said:

If the provision does not prohibit the development in question under any
circumstances, and the development is permissible in circumstances expressed in the
provision (whether positively or negatively, see the forms of provision earlier stated), in
most instances the provision will specify a requirement or fix a standard in respect of
an aspect of the development. … 80

In Gales Holdings Pty Ltd v Tweed Shire Council 81 Lloyd J of the NSW Land and
Environment Court was called upon to determine whether the expression “activity” in
s 110 of the EPA Act involved a question of jurisdictional fact. (If an act, matter or
thing is an “activity”, then the provisions contained in Part 5, as opposed to Part 4, of
the Act apply or at least potentially apply.) Applying the principles enunciated by
Spigelman CJ in Timbarra, 82 his Honour held that the question whether an act,
matter or thing was an “activity” was jurisdictional:

The determination of whether an act, matter or thing is an "activity" in turn determines
which regulatory procedure applies. I accept this as being a threshold question, not
expressed to be dependent upon an opinion but purely a question of objective fact and
a preliminary to the exercise of the decision-making powers and duties rather than a
question arising in the conduct of the decision-making process itself. The absurd
consequences which would follow in the event of a contrary conclusion … confirm the
view to which I have come. 83

In coming to his conclusion Lloyd J had regard not only to such matters as
“objectivity” and “essentiality” (cf Timbarra) but also certain non-textual matters,

79
(2001) 116 LGERA 319. In Poynting the court determined that a provision in a planning scheme
ordinance, which stated that a single dwelling as well as certain other specified forms of residential
development “must not be erected” on certain land having an area of less than a certain specified
amount or a width of less than a certain specified amount, was not a prohibition but a development
standard amenable to objection under SEPP 1.
80
(2001) 116 LGERA 319 at [98]. See also Woollahra Municipal Council v Carr (1987) 62 LGRA 263,
Kruf v Warringah Shire Council (LEC, Holland J, 15 December 1988, unreported), Quinn O’Hanlon
Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114, North Sydney Municipal
Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222, Bell v Shellharbour Municipal Council
(1993) 78 LGERA 429, Scott Revay & Unn v Warringah Council (1995) 88 LGERA 1, Dixon v
Wingecarribee Shire Council (1999) 103 LGERA 103, Bowen v Willoughby City Council (2000) 108
LGERA 149, Fencott Drive Pty Ltd v Lake Macquarie City Council (2000) 110 LGERA 318, Tobin v
Shoalhaven City Council (2001) 113 LGERA 350, Lowy v Land & Environment Court of NSW (2002)
123 LGERA 179, and Georgakis v North Sydney Council (2004) 140 LGERA 379.
81
(1999) 110 LGERA 235.
82
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64-66; 102 LGERA 52
at 61-63 per Spigelman CJ.
83
(1999) 110 LGERA 235 at 247.

18

relevantly, the inconvenience that might arise from the matter being classified as
jurisdictional (which, according to his Honour, was not critical) as well as the purpose
of the definition in the overall legislative scheme (a matter of much more
importance).

In Donnelly v Delta Gold Pty Ltd 84 Bignold J of the NSW Land and Environment
Court was called upon to determine whether the provisions of s 58(6) of the
Protection of the Environment Operations Act 1997 (NSW) involved a question of
jurisdictional fact. The provision stated that if the variation of a licence would have a
certain specified effect, and the proposed variation had not been the subject of
environmental assessment and public consultation under the EPA Act, then the
appropriate regulatory authority was to invite and consider public submissions before
it varied the licence under s 58(1) of the first mentioned Act. His Honour held:

Section 58(6) in its statutory context exerts an altogether separate function, namely
that of imposing a duty, if certain facts exist (being the relevant factual references
contained in pars (a) and (b)), upon the regulatory authority to invite and to consider
public submissions "before it varies the licence". This duty so formulated is clearly a
matter that is "preliminary or ancillary to" the exercise of the statutory power of
variation that is conferred by s 58(1).

In my judgment, it is clear that the legislative intention is that where the factual
reference is engaged in fact, the variation power is not to be exercised without the
regulatory authority first inviting and then considering public submissions. This satisfies
the "essentiality" element identified in Chief Justice's judgment in Timbarra.

It is but a short and obvious step in the reasoning process, to also infer that the
legislative intention is that the duty is enlivened where the requisite facts exist in fact,
rather than where the regulatory authority is of the opinion, or believes, that they exist.
(In this respect it is, of course, significant that the factual reference is not propounded
by reference to the opinion held by the regulatory authority.) This satisfies the
"objectivity" element identified in the Chief Justice's judgment in Timbarra. 85

Accordingly, his Honour held that the question whether a licence variation would
have the specified effect was a question concerning a jurisdictional fact “which this
Court must determine for itself, on the basis of all the relevant evidence”. 86

84
(2001) 113 LGERA 34.
85
(2001) 113 LGERA 34 at 50-1.
86
(2001) 113 LGERA 34 at 53.

19

In Schroders Australia Property Management Ltd v Shoalhaven City Council, 87
which was not a case on whether or not a particular provision was amenable to
objection under SEPP 1, the NSW Court of Appeal was called upon to consider the
construction of cl 9(3) of Shoalhaven Local Environment Plan 1985 which provided
that the council shall not grant consent to the carrying out of development on or of
land to which this plan applied unless the Council was of the opinion that the
carrying out of the development was consistent with the objectives of the zone within
which the development is proposed to be carried out. Ipp AJA (Spigelman CJ and
Sheller JA agreeing) stated:

Part of the site of the development was zoned 3(g) under the LEP. Hence, it was a
condition precedent to a valid grant of consent that the Council form an opinion that
the development was consistent with the objectives of the 3(g) zone. A failure to form
such an opinion would result in the grant being invalid: Franklins Limited v Penrith City
Council [1999] NSWCA 134. 88

In Centro Properties Limited v Warringah Council, 89 a decision of Pain J of the NSW
Land and Environment Court, the court, in judicial review proceedings, was called
upon to determine whether a development consent that had been granted by the
local council for construction of a bulky goods outlet, shops, restaurants,
conservation of bushland and associated parking was valid. Under the relevantly
applicable environmental planning instrument, Warringah Local Environmental Plan
2000, which embodied a system of planning known as “locality based planning”, land
the subject of the instrument was divided into certain “localities” (as opposed to
zones), each with its own detailed “locality statement”. Basically, all development,
other than “exempt development” and “prohibited development”, was permissible
with consent provided, before granting consent, the consent authority was “satisfied”
that the development was “consistent” with various specified matters including the
content of a section of the locality statement for the particular locality entitled
“Desired Future Character” (DFC). The applicant in the proceedings before the
court alleged that the council had, among other things, wrongly assumed to itself
jurisdiction to grant consent to the development application in circumstances where
the condition precedents to the existence of that jurisdiction (viz the reaching of the

87
[2001] NSWCA 74.
88
[2001] NSWCA 74 at [7].
89
(2003) 128 LGERA 17.

20

relevant state of satisfaction of consistency with the DFC of the particular locality as
specified in the locality statement for that locality, as well as the fact of consistency
with that DFC) had not been fulfilled. 90

Her Honour proceeded to hold that the reaching of the relevant state of satisfaction
of consistency with the DFC of the particular locality as specified in the locality
statement for that locality did involve a question of jurisdictional fact:

The requirement under cl 12(3)(b) is that, for Category Two development, the Council
must be satisfied that the development is consistent with the DFC before granting
development consent. On the basis of [Franklins Limited v Penrith City Council [1999]
NSWCA 134 and Schroders Australia Property Management Ltd v Shoalhaven City
Council [2001] NSWCA 74], both of which also consider wording based on the need to
be satisfied with a certain matter before a council can grant development consent, this
provision clearly contains a condition precedent to the exercise of the Council's power
to grant development consent which must be satisfied by the Council before consent
can be granted. 91

Her Honour also held that the fact of consistency with the DFC also involved a
question of jurisdictional fact:

While the wording of cl 20(1) does not include the words "the consent authority must
be satisfied" as in cl 12(3)(b), in the scheme of this LEP I consider cl 20(1) is also a
condition precedent which must be satisfied by the Council before development
consent can be granted. 92

In Gorczynski v Perera, 93 a decision of the NSW Court of Appeal, the court had
before it an appeal in which the primary judge (Cowdroy J, of the NSW Land and
Environment Court) had to consider cl 23(6) of the Leichhardt Local Environmental
Plan 2000 which, relevantly, was follows:

90
See cll 12(3)(a) and (b) and 20(1) of Warringah Local Environmental Plan 2000. Clause 12(3)(a)
required the consent authority to “consider” the DFC described in the relevant locality statement.
Clause 12(3)(b) provided that the consent ”must be satisfied” that the development was “consistent”
with the DFC of the locality. Clause 20(1) provided that consent may be granted to development
despite non-compliance with one or more otherwise relevantly applicable development standards
“provided the resulting development [was] consistent” with the certain specified matters including the
DFC locality.
91
(2003) 128 LGERA 17 at 36 [74].
92
(2003) 128 LGERA 17 at 37 [81], original emphasis.
93
(2004) 132 LGERA 341.

21
Consent may be granted to the use of a building or part of a building situated within the
Residential Zone for any use allowed only with development consent in the Business
Zone, and the alteration of the building so that it can be so used, if:

(a) the whole or part of the building was constructed for a non-residential use,
and

(b) the building is capable of being substantially retained, which means the
building must be structurally capable of conversion while meeting building,
health, amenity and other environmental planning requirements, without the
need for the replacement of most of the structure, and

(c) the consent authority is satisfied that the amenity of the locality will not be
adversely affected.

Essentially, the primary judge was satisfied that paragraphs (a) and (b) of cl 23(6) of
the LEP were not jurisdictional facts prerequisite to the grant of consent but “matters
for consideration” about which Council was merely required to be subjectively
satisfied (but, nevertheless, “reasonably” satisfied, as well, in the Wednesbury 94
sense). The Court of Appeal (per Santow JA, Meagher and Ipp JJA agreeing) did
not find it necessary to determine whether paragraphs (b) and (c) of cl 23(6) involved
questions of jurisdictional fact as there was no live issue in relation to those matters,
but was otherwise satisfied that the matter the subject of paragraph (a) did involve a
question of jurisdictional fact. (Based on the preponderance of judicial authority
discussed in this article the “better” view would appear to be that paragraph (b) also
involves a question of jurisdictional fact. As for paragraph (c), the matter the subject
of that paragraph arguably does not involve a question of jurisdictional fact, but if it
does, the required mental state of “satisfaction” is a particular kind of jurisdictional
about which the consent authority is merely required to be subjectively satisfied
according to the Wednesbury unreasonableness standard.)

One interesting matter that comes out of Gorczynski relates to the burden of proof in
relation to the matter of the proof of jurisdictional facts. Santow JA had this to say
about the matter:

… I agree that the burden of proof falls upon the respondent to demonstrate
satisfaction. The very nature of a jurisdictional fact is that if the pre-condition be not
satisfied, then the jurisdiction of council to grant the development consent would be
absent. Moreover, I consider that the pre-condition here in question is an objective

94
See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

22
one, requiring demonstration by the appellant of whether construction for a non-
residential use has taken place. That entails also determining when that must have
taken place in order to satisfy s 23(6)(a). 95

In Woolworths Ltd v Pallas Newco Pty Ltd, 96 another decision of the NSW Court of
Appeal, the court was called upon to hear an appeal where the legal issue was
whether the particular use proposed by the appellant was a "drive-in take-away
establishment", in which case it was permissible with consent, otherwise the use
was prohibited (as it had not been suggested that the proposed development could
fall within any other classification of permissible use). The court (per Spigelman CJ,
Mason P, Handley and Sheller JJA and Cripps AJA agreeing) held that, taking into
account the legislative purpose and statutory context of Parts 3 and 4 of the EPA
Act, the characterisation of the use nominated in a development application as
permissible with consent under the terms of the applicable environmental planning
instrument involved a question of jurisdictional fact which the court, in judicial review
proceedings, must determine for itself. The court’s previous decision in Londish was
not followed. 97

In Issa v Burwood Council, 98 another decision of the NSW Court of Appeal, the court
was called upon to hear an appeal where the legal issue was whether or not a
proposed subdivision was permissible or prohibited under the relevant
environmental planning instrument. In particular, the issue on appeal depended
upon the proper meaning of the word “allotment” where it appeared in the definition
of “dual occupancy development” in cll 4 and 78Q of the Burwood Planning Scheme
Ordinance. The expression “dual occupancy development” was defined in cl 4(1) of
95
(2004) 132 LGERA 341 at [56].
96
(2004) 61 NSWLR 707; 136 LGERA 288.
97
See also The Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376,
another decision of the NSW Court of Appeal that also involved issues of characterization or
categorization and the question whether those issues involved jurisdictional facts. Handley JA (at
[14]) stated that the analysis of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR
369 at 391 (in which his Honour alluded to the existence of a presumption against a factual reference
in a statutory formulation being construed as a jurisdictional fact where inconvenience would arise
from it being so classified), which was cited with approval (at [134]; see also [128]) by Basten JA (at
least as regards statutory decision-making by inferior courts, as opposed to administrative tribunals),
was confined to judicial decisions and was not reflected in more recent landmark cases such as
Enfield City and Pallas Newco. His Honour (at [14]) also disagreed with Basten JA who opined (at
[134]) that there was also no scope for a weaker presumption to the same effect on the basis that the
local council was a representative body (cf M Aronson, “The Resurgence of Jurisdictional Facts”
(2001) 12 PLR 17; Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed,
2004) at 231-2).
98
(2005) 137 LGERA 221.

23

the Ordinance to mean “development that results in 2 dwellings (whether attached or
detached) on a single allotment of land”. By virtue of cl 78Q of the Ordinance
consent could not be granted for a subdivision (including a strata subdivision) of an
allotment within the subject zone that created separate allotments for each of the
two dwellings resulting from a dual occupancy development. In the case before the
court, the subject land comprised 2 Torrens title lots and it was proposed that the
proposed dual occupancy development straddle the internal boundary between the 2
lots. The appellant thus contended, first, that cl 78Q had no application in this case,
arguing that the 2 dwellings did not result from a “dual occupancy development” as
defined in cl 4(1), because they did not result in 2 dwellings on a “single allotment of
land” and, secondly, that cl 78Q did not operate to prevent subdivision as the
subdivision proposed did not involve the subdivision of a single allotment of land but
only the re-subdivision of 2 existing allotments. However, the council submitted that
the word “allotment” where used in the statutory provisions did not have the same
meaning as “lot” but bore its ordinary, non-technical meaning in the sense of being a
distinct or identifiable area of land. The primary judge (Pain J, of the NSW Land and
Environment Court) agreed with the council’s submission, the result being that the
proposed subdivision was held to be prohibited.

The court (per Pearlman AJA, Mason P and Tobias JA agreeing) first noted that the
question whether an expression (in this case, the word “allotment”) is used in any
sense other than that which it has in ordinary speech is a question of law, 99 before
going on to note that in Woolworths Ltd v Pallas Newco Pty Ltd the court had held
that classification of a development as permissible with consent or prohibited
involved the determination of a jurisdictional fact. Accordingly, the court had the
jurisdiction to judicially review the decision of the primary judge. Ultimately, the
court, after considering a line of authority in the Land and Environment Court on the
meaning of the word “allotment”, 100 agreed with the view of the primary judge on the
meaning of the word “allotment” (viz that it was not synonymous with the word “lot”)

99
See Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR 389 at 397. See also NSW
Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509.
100
The cases cited by the court were Personal Design Projects Pty Ltd v Hornsby Shire Council
[1991] NSWLEC 34, S & I Investments Pty Ltd v Pittwater Municipal Council [1993] NSWLEC 166
and Demihale Pty Ltd v Ku-ring-gai Municipal Council (2002) 123 LGERA 94; cf Ku-ring-gai Municipal
Council v Kuttner (1980) 41 LGERA 1.

24

and proceeded to dismiss the appeal on the basis that the proposed subdivision
application was prohibited development.

In Lesnewski v Mosman Municipal Council, 101 another decision of the NSW Court of
Appeal, the appellant challenged the validity of a development consent granted by
the council for alterations and additions to an existing dwelling-house. The thrust of
the appellant's argument was that it had been the function of the court below, 102 in
judicial review proceedings, to determine for itself whether the design and
construction of the building as depicted in the plans and specifications furnished to
the certifying authority for the purpose of the issue of a construction certificate were
“not inconsistent” with the development consent (that being a requirement of the
relevantly applicable legislation). In other words, it was asserted that lack of
inconsistency was a jurisdictional fact which was required to be determined
objectively before the Council (or its delegate) was empowered to issue a
construction certificate. The relevant provision was cl 145(1)(a) of the
Environmental Planning and Assessment Regulation 2000 (NSW) which provided
that a certifying authority must not issue a construction certificate for building work
unless it is “satisfied” of certain specified matters including, relevantly, that the
design and construction of the building (as depicted in the plans and specifications
furnished to the certifying authority for the purpose of the issue of a construction
certificate) are not inconsistent with the development consent.

Tobias JA (Hodgson and Ipp JJA agreeing) said:

Although in Woolworths [Ltd v Pallas Newco Pty Ltd] the Chief Justice observed (at
[49]) that 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",

his Honour also recognised (at [56]) that 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 error going to jurisdiction.

101
(2005) 138 LGERA 207.
102
The NSW Land and Environment Court.

25
Further, at [58] the Chief Justice acknowledged that an environmental planning
instrument may require the assessment of a wide range of matters of considerable
complexity involving the formation of value judgments which were unlikely to involve a
jurisdictional fact. At [60] his Honour exemplified the number of situations that involved
matters of judgment which had been held to be jurisdictional. But none of them
involved a requirement that the decision maker be "satisfied" as to the existence of
certain facts or hold an "opinion" with respect to those facts. In my opinion, upon the
basis of the Chief Justice's judgment in Woolworths, the only jurisdictional fact required
to be objectively determined pursuant to [clause] 145(1)(a) [of the Environmental
Planning and Assessment Regulation 2000 (NSW)] was that the certifying authority be
"satisfied" of the relevant matters. Once that state of satisfaction is held to exist, that is
the end of the inquiry subject only to judicial review on conventional administrative law
grounds.

Accordingly, it is clear that whether or not the plans the subject of the construction
certificate were in fact "not inconsistent" with the plans the subject of the consent was
not a jurisdictional fact which [clause]145(1)(a) required the court to determine for
itself. In my opinion the primary judge was correct to reject the appellant's argument to
the contrary. 103

In other words, the jurisdictional fact issue was, not whether or not the design and
construction of the building (as depicted in the plans and specifications furnished to
the certifying authority for the purpose of the issue of a construction certificate) were
in fact "not inconsistent" with the development consent, but whether the certifying
authority was "satisfied" of the relevant matters. Indeed, it would appear to follow
that only if the state of satisfaction, looked at objectively, was “manifestly
unreasonable” would there be grounds for setting aside the tribunal of fact’s
determination of that matter.

In Lane Cove Council v Minister for Urban Affairs and Planning 104 the NSW Court of
Appeal did not find it necessary to actually determine whether certain statutory
provisions (one draft, the other gazetted) involved questions of jurisdictional fact.
The first provision stated that consent must not be granted for certain development
unless the consent authority was “satisfied” that the proposed development
demonstrated that adequate regard had been given to certain specified principles.
The second provision (the one actually gazetted) provided that, in determining a
development application for consent to carry out residential flat development, the
consent authority was to “take into consideration” certain specified matters. Santow
JA (Campbell J agreeing, McColl JA agreeing with the orders) said, “Whether either

103
(2005) 138 LGERA 207 at 226 [87-9].
104
[2005] NSWCA 122.

26
105
presage jurisdictional fact need not be decided.” However, it is clear from his
Honour’s judgment that he inclined strongly to the view that neither provision
involved a question of jurisdictional fact. 106

THE WRONG APPROACH

In an earlier decision, being that of Pearlman J of the NSW Land and Environment
Court in Byron Shire Businesses for the Future Inc v Byron Council & Anor (the Club
Med case), 107 a development consent granted by a local council was declared null
and void because, at the time the council purported to grant consent, no fauna
impact statement as required by the EPA Act had been lodged with the council.
Interestingly, Pearlman J never determined that a fauna impact statement was
required. What her Honour did determined was that there was insufficient probative
material before the council as to the likely effect of the proposed development on the
environment of 2 particular species of endangered fauna. 108 In the opinion of her
Honour, the council “started off with at least the possibility of significant effect” and
was “then bound by the [Act] to determine whether or not that was so”. 109 In respect
of one species of endangered fauna, namely, the comb-crested jacana, “the only
reasonable conclusion was that its environment was likely to be significantly
affected”, and as to other species of endangered fauna the council “was required to
make a determination one way or the other as to significant effect on
environment”. 110 The legal consequence of her Honour’s conclusion that the
council’s decision on the fauna question was “not reasonably open” to it was the
invalidation of “the very foundation of the development consent process”. 111 A fauna
impact statement was an essential prerequisite for the council to make a
determination of the development application. 112

Insofar as the above issue of law was concerned there would not appear to be
anything in her Honour’s judgment in the Club Med case that is inconsistent with the

105
[2005] NSWCA 122 at [44].
106
[2005] NSWCA 122 at [44-55].
107
(1994) 84 LGERA 434.
108
The development application before the council disclosed that approximately 33 species of
endangered fauna were likely to be within or near the site of the proposed development. The 2
species in respect of which her Honour held that there was insufficient information before the consent
authority were the wallum froglet and the comb-crested jacana.
109
(1994) 84 LGERA 434 at 446.
110
(1994) 84 LGERA 434 at 446.
111
(1994) 84 LGERA 434 at 447. See also Helman v Byron Shire Council & Anor (1995) 87 LGERA
349.
112
See also Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 209.

27

views subsequently expressed by the NSW Court of Appeal in the Timbarra case.
However, the development consent was alleged to be invalid on other grounds as
well. One of those grounds was that the proposed development was, at least in part,
“designated development” within the meaning of the EPA Act on a number of
different bases. If that were the case, then the legislation required that an
environmental impact statement be submitted to the consent authority (the local
council). However, no such environmental impact statement had ever being
submitted to the council. Ultimately, her Honour concluded that it was “reasonably
open” for the council to have concluded that the proposed development was not
“designated development”. 113 With respect, it is now clear, in light of cases such as
Timbarra and Enfield, that her Honour did not apply the correct approach. The
question whether or not the proposed development was “designated development”
within the meaning of the legislation involved a question of jurisdictional fact. The
court, in judicial review proceedings, was duty bound to determine the jurisdictional
fact or pre-condition anew. It is not a question of whether the decision made by the
tribunal of fact on the issue was one that was “reasonably open” to it.

In Londish v Knox Grammar School, 114 the NSW Court of Appeal was called upon to
judicially review the lawfulness of a development consent granted by a local council
to the school for a change of use of certain premises to a “boys' school residential
area”. It seems that the consent was granted on the basis of existing use rights
provisions that allowed, with consent, a change from one non-conforming use to
another. The subject land was subsequently rezoned such that “educational
establishments” were permissible with consent, but not “boarding-houses” which
were prohibited. Later, a further consent was sought and obtained for additional
boarding accommodation and associated facilities.

The court (per Stein JA, Mason P and Meagher JA agreeing), in dismissing the
appeal, held that the primary judge (Talbot J in the NSW Land and Environment
Court) had not erred when he expressed the test for jurisdictional error as whether
the decision of the council was “reasonably open” to it (in characterising the use as
an educational establishment). Stein JA stated:

113
See (1994) 84 LGERA 434 at 450-5.
114
(1997) 97 LGERA 1.

28
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. 115

In so holding, his Honour relied upon a previous decision of his in Bentham v Kiama
Council 116 which concerned whether a proposed development should be
characterised as an hotel (which was prohibited) or, as the council had found, a
conglomeration of a motel, tavern and conference centre (which was permissible
with consent). In Bentham his Honour (then Stein J) stated that “the fact that minds
might differ and conclude otherwise than did the Council is no reason to vitiate its
decision”: 117

It was a decision which, in my opinion, was reasonably open to Council to make. It
sought and acted on advice from the department. To put the question a different way,
is the decision “looked at objectively,...so devoid of any plausible justification that no
reasonable body of persons could have reached [it]”? (Lord Diplock in Bromley
Borough v Greater London Council [1983] 1 AC 768, 821). I do not believe so. 118

In other words, it was not for the reviewing court, in judicial review proceedings, to
determine whether or not, on whatever evidence might now be available, the subject
development ought to be categorised as an “educational establishment” or a
“boarding-house” (or for that matter some other characterisation). It was simply a
question of whether the determination by the tribunal fact in relation to that matter
was one that was “reasonably open” to it. Once again, it is now clear, in light of
cases such as Timbarra and Enfield that the court did not apply the correct
approach. It should have decided for itself, as a matter of jurisdictional fact, whether
the proposed development was “educational establishment” or “boarding-house” or
whatever.

In Transport Action Group Against Motorways Inc v Roads and Traffic Authority 119
(1999) 104 LGERA 133, being a decision of the NSW Court of Appeal handed down
a few months after the court’s unanimous decision in Timbarra, there was an

115
(1997) 97 LGERA 1 at 8.
116
(1986) 59 LGRA 94.
117
(1986) 59 LGRA 94 at 98.
118
(1986) 59 LGRA 94 at 98.
119
(1999) 46 NSWLR 598; 104 LGERA 133.

29

argument that a decision made by a determining authority pursuant to s 112(4)(b)(i)
of the EPA Act to "modify" a proposed activity involved:

a jurisdictional fact: cf Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46
NSWLR 55. The challenge provoked a contention by the respondents that the
challenged decisions were valid because it was open to the RTA to conclude that the
committed works were modifications within the ambit of s 112(4)(b)(i): cf Londish v
Knox Grammar School (1997) 97 LGERA 1. 120

The majority of the Court (Mason P and Sheller JA) did not find it necessary to
decide whether or not the above mentioned statutory provision involved a
jurisdictional fact 121 but Sheller JA expressed the view, 122 consistent with Londish,
that the task of deciding the various matters arising under s 112 of the EPA Act were
"entrusted to the determining authority" and that provided it acted “bona fide and
reasonably”, its decisions could not be challenged. 123 Fitzgerald JA dissented. In his
view, the question was indeed one of jurisdictional fact. With respect, his view must
now be preferred, for as Bignold J pointed out in Donnelly v Delta Gold Pty Ltd: 124

In particular, it is unlikely … that the decision in Londish can be taken to have survived
the effect of the decision in Enfield. Curiously, Londish was not cited in the argument in
Enfield. 125

Now, if there remained any doubt as to what was the correct approach, it came to an
end with Chambers v Maclean Shire Council. 126 In that case the NSW Court of
Appeal was called upon to judicially review the lawfulness of a development consent
granted by the council in respect of certain proposed development (viz the
establishment of a prawn and research station on certain land used as a farm). The
issue was whether the proposed development was prohibited such that the council
lacked jurisdiction to consent to it. The applicant to the proceedings alleged that the
development was not permissible because the proposed site did not meet the
minimum performance criterion for pond-based aquaculture that elevation be greater

120
(1999) 46 NSWLR 598 at 618; 104 LGERA 133 at 151 per Mason P.
121
See (1999) 46 NSWLR 618-9; 151 per Mason P and 647-8; 172 per Sheller JA.
122
At (1999) 46 NSWLR 648; 104 LGERA 172.
123
At (1999) 46 NSWLR 648; 104 LGERA 172.
124
(2001) 113 LGERA 34.
125
(2001) 113 LGERA 34 at 52.

126
(2003) 57 NSWLR 152; 126 LGERA 7.

30

than 1 metre Australian Height Datum ("AHD") as prescribed by State Environmental
Planning Policy No 62 ("SEPP 62"). In order for the farm to meet the minimum
performance criteria, it had to be "within an area that is above 1 metre AHD and
below 10 metres AHD". The elevation of 40 per cent of the farm was lower than 1
metre AHD.

The primary judge (Sheahan J, in the NSW Land and Environment Court) construed
the word "area" 127 to mean a "district" or "region", which could be categorised as
generally having elevations ranging between 1 and 10 metres. His Honour, relying
upon the reasoning of the NSW Court of Appeal decision in Londish v Knox
Grammar School, 128 found that it was “reasonably open” to the council to have found
that the general area in which the farm was located had a prevailing elevation of
approximately 1 metre AHD or more. That meant that the proposed development
was permissible with consent and the Council was entitled to determine so. On
appeal to the Court of Appeal, it was held that the question of whether or not the
subject development was prohibited involved a question of jurisdictional fact. Ipp JA
(with whose reasons Sheller and Giles JJA generally agreed) said:

… 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 Pt 4 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.

I would refer also to the statement of Spigelman CJ in Timbarra Protection Coalition
Inc v Ross Mining NL (1999) 46 NSWLR 55 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 in this case is whether the
minimum performance criteria are met. 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.

Therefore, the reasoning in Londish does not apply: Timbarra Protection Coalition Inc
v Ross Mining NL at 63. In my opinion, Sheahan J erred in applying the approach
adopted therein. The question whether the minimum performance criteria were met

127
In cl 4 of Sch 1 to SEPP 62.
128
(1997) 97 LGERA 1.

31
involves a jurisdictional fact and, according to the relevant legislation, must be
answered objectively - not by reference to the subjective opinion of the Council. 129

The previous decision of the court in Londish was for all intents and purposes
distinguished or otherwise confined to its own special facts and statutory
circumstances on the basis that Londish predated a number of significant
amendments to the EPA Act that came into effect on 1 July 1998. Prior to that date,
but not thereafter, the Minister had the power to “call up” and affirmatively determine
an application made to a consent authority, not being the Minister, for the carrying
out of what would otherwise be prohibited development. 130 With respect, it would
appear that the court was simply trying to bring itself into line with the approach
taken by the High Court in Enfield City Corporation v Development Assessment
Commission. 131

CONCLUSION

The doctrine of judicial review - indeed, the rule of law - requires that the question
whether a tribunal of fact has acted within jurisdiction be one for the reviewing court
to determine independently for itself. The task of determining whether or not a
particular factual reference (“fact situation”) in a statutory provision (“formulation”) is
or involves a question of jurisdictional fact which the reviewing court must determine
for itself on the basis of all the relevant evidence requires a careful, indeed
meticulous (that is, “proper”) 132 examination of the statute as a whole, and not just
the formulation, applying ordinary principles of statutory construction, having regard
to the legislative intention. The latter is to be deduced not only from express words
but also from “implications found in inferences to be drawn from the language
[used]”. 133

In order for there to be a question of jurisdictional fact - which is a conclusion
reached after the process of statutory construction - the following matters would

129
(2003) 57 NSWLR 152 at 160; 126 LGERA 7 at 16 [46-8].

130
(2003) 57 NSWLR 152 at 159-60; 126 LGERA 7 at 15-6 [43].
131
(2000) 199 CLR 135.
132
Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 60 per Spigelman CJ.
133
Ex parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 298 per Jordan CJ.

32

ordinarily need to be satisfied or fulfilled, having regard to the context of the
formulation and the underlying object or purpose of the statute:

1. The legislative intention must be such that there must be “objective”
compliance with the fact situation. In other words, the fact (or fact situation)
must exist in fact to “enliven” the power or duty to act. This is known as the
element of “objectivity”.
2. The legislative intention must be such that the absence or presence of the
fact situation will invalidate action under the statute. In other words, where
the fact situation is “engaged”, the power or duty to act, or not act, in a
certain specified way is triggered affirmatively or negatively. This is known
as the element of “essentiality”.

Along with such matters as the non-textual indicator of the purpose of the
formulation in the overall legislative scheme (a matter of considerable importance)
and the inconvenience, if any, that may arise from the fact situation being held to be
jurisdictional (a matter of much less importance), indications of legislative intention
(expressed here as questions to be asked) include but are not necessarily limited to
the following:

• Does the fact situation occur or otherwise arise in the actual formulation of
the grant of substantive power to the tribunal of fact to make the ultimate
decision on the merits? If so, the fact situation is unlikely to be or involve
a question of jurisdictional fact.
• Does the fact situation occur or otherwise arise as a matter for
consideration or as a matter to be ultimately adjudicated upon by the
tribunal of fact in the decision making process? If so, the fact situation is
unlikely to be or involve a question of jurisdictional fact, particularly where
the ultimate decision involves the assessment of a wide range of matters
of considerable complexity involving the formation of value judgments in
respect of matters on which reasonable persons might reasonably arrive
at divergent conclusions.

33

• Does the fact situation occur or otherwise arise in the context of a duty,
express or implied, that is preliminary or ancillary to the exercise of the
substantive power to make the ultimate decision on the merits? If so, the
fact situation is likely to be or involve a question of jurisdictional fact.
• Does the fact situation have to be established either as a condition
precedent for the decision maker to exercise its jurisdiction or otherwise
consist of matters that have to be satisfied in the course of exercising
jurisdiction? If so, fact situation will almost certainly involve a question of
jurisdictional fact.
• Does the fact situation occur or otherwise arise in a formulation requiring
the formation by the tribunal of fact of a specified mental state (eg
“opinion”, “satisfaction”). If so, the fact situation itself (as opposed to the
mental state) is unlikely to be or involve a question of jurisdictional fact.
Nevertheless, the reviewing court will ordinarily enquire as to the
“reasonableness” (in the Wednesbury sense) of the actual mental state of
the tribunal of fact.

Other matters to be considered include the following:

• Does the formulation, in its proper context, use the language or
terminology of prohibition? This is relevant, but not necessarily
determinative of the issue.
• Does the statute, or some other statute or statutory instrument, contain a
mechanism or facility that affords flexibility whether by means of
administrative alleviation or otherwise in the application of the provision?
(Thus, what might otherwise be seen to be prohibitory in nature may end
up having to be construed as only regulatory.)

Ultimately, it all seems to get down to statutory construction and legislative intention,
with the reviewing court having the final say … at least on those matters. One thing
is, however, clear: the distinction between facts themselves and facts as we know
them which lies at the heart of the so-called “jurisdictional fact doctrine” will always

34

remain somewhat elusive. In the words of the Scottish-born Australian philosopher
John Anderson:

We cannot, then, make any such distinction as between "things as we know them" and
"things themselves". Unless the former are things themselves, we are not entitled to
speak of things (and hence to speak) at all. 134

134
J Anderson, “Empiricism”, in Studies in Empirical Philosophy (Sydney: Angus & Robertson, 1962),
13.

THE "JURISDICTIONAL FACT DOCTRINE" IN NEW SOUTH WALES LOCAL GOVERNMENT AND ENVIRONMENTAL PLANNING LAW

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