El Khouri v Gemaveld Pty Ltd

The applicants sought judicial review in the Supreme Court of New South Wales of a consent granted by the Land and Environment Court to the respondent for the construction of a new dwelling house. The dispute concerned whether the proposed development complied with a height control stipulated in the relevant Local Environmental Plan. The consent had been granted following a conciliation conference, with the Commissioner of the Land and Environment Court having found, based on the evidence before him, that the proposed development did not exceed the height control.

The primary legal issues before the Supreme Court were whether compliance with the height control constituted a jurisdictional fact, and whether the prohibition in the Local Environmental Plan applied of its own force, irrespective of the consent. The applicants sought to adduce fresh survey evidence in the Supreme Court proceedings, which they contended established that the height control was indeed exceeded. The Court was also required to consider the significance of the consent being granted after a conciliation conference, as opposed to after a formal hearing.

The Court, applying the principles from *Ross v Lane* [2022] NSWCA 235, determined that compliance with the height control was not a jurisdictional fact. The Court reasoned that the prohibition in the Local Environmental Plan did not operate as a prohibition of its own force in the circumstances, and that the Commissioner had acted within his jurisdiction in granting consent based on the evidence presented to him. The fact that the consent was granted following a conciliation conference did not alter this conclusion.

Consequently, the amended summons was dismissed, with costs awarded to the respondent.