Helen Lesnewski v Mosman Municipal Council and Anor

Case [2003] NSWLEC 407

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Land and Environment Court


of New South Wales


CITATION: Helen Lesnewski v Mosman Municipal Council and Anor [2003] NSWLEC 407 revised - 10/05/2004
PARTIES: Helen Lesnewski
Mosman Municipal Council
RJ Wright and C Wright
FILE NUMBER(S): 40085 of 2002
CORAM: Pain J
KEY ISSUES: Judicial Review :- Operation of s 101 of the Environmental Planning and Assessment Act (1979)
LEGISLATION CITED: Environmental Planning and Assessment Act (1979) s 101
CASES CITED: Breitkopf v Wyong Shire Council (1996) 90 LGERA 269;
Calkovics v Minister for Local Government and Planning [1988] NSWLEC 66 (22 September 1988);
Coles Supermarket Australia Pty Limited v Minister of Urban Affairs and Planning (1996) 90 LGERA 34;
Londish v Knox Grammar School (1997) 97 LGERA;
P W Rygate & West v Shoalhaven City Council [1990] NSWLEC 50 (1 May 1990);
R v Hickman, ex parte Fox and Clinton (1945) 70 CLR 598;
Sericott Pty Ltd v Snowy River Council(1999) 108 LGERA 66;
The Queen v. Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415;
Vanmeld v Fairfield City Council (1999) 101 LGERA 297;
Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55;
Yadle Investments v RTA (1991) 72 LGRA 409
DATES OF HEARING: 07/04/03
EX TEMPORE
JUDGMENT DATE :
04/09/2003
LEGAL REPRESENTATIVES:


APPLICANT:
Mr J Webster
SOLICITORS:
Hunt and Hunt

FIRST RESPONDENT:
Mr P. Tomasetti
SOLICITORS:
Pike Pike and Fenwick

SECOND RESPONDENTS:
Mr J.E. Robson
SOLICITORS:
Freehills


JUDGMENT:

    IN THE LAND AND
    ENVIRONMENT COURT
    OF NEW SOUTH WALES

                            40085 of 2002

                            Pain J

                            9 April 2003
    HELEN LESNEWSKI
                                    Applicant
        v
    MOSMAN MUNICIPAL COUNCIL
                                    First Respondent

    RJ WRIGHT and C WRIGHT
                                    Second Respondents
    Judgment


    1. This case concerns a development consent granted by the Council on 28 August 2000 to the Second Respondents to undertake certain building work, including the construction of a swimming pool. A construction certificate was granted in relation to the development consent on 4 December 2000 and, most importantly for this particular matter, a s 101 advertisement, dated 7 September 2000, was published by the Council in the relevant local paper. The Applicant commenced class 4 proceedings in May 2002 which was outside the three-month time limit specified in s 101.

    2. Section 101 of the Environmental Planning and Assessment Act (1979) (“the EP&A Act”) provides that, if public notice of the granting of consent or of a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consental certificate cannot be questioned in any legal proceedings, except those commenced in the Court by any person at any time before the expiration of three months from the date on which public notice was given.

    3. The Applicant in its Class 4 application, seeks declarations, on three separate grounds, that the development consent granted by the Council on 28 August 2000 and the construction certificate dated 4 December 2000 granted by the Council are null and void.

    4. The three grounds claimed by the Applicant are as…
Details
AGLC
Helen Lesnewski v Mosman Municipal Council [2003] NSWLEC 407
Case
[2003] NSWLEC 407
Decision Date

CaseChat Overview and Summary

The case of Helen Lesnewski v Mosman Municipal Council and Anor was heard in the Land and Environment Court of New South Wales. The applicant, Helen Lesnewski, challenged the development consent granted by the Mosman Municipal Council to the respondents, RJ Wright and C Wright, for construction work that included the building of a swimming pool. The applicant's challenge was based on three grounds: failure to accord natural justice, lack of jurisdiction, and the inconsistency of the construction certificate with the development consent. The dispute centred on the operation of section 101 of the Environmental Planning and Assessment Act 1979, which provides that the validity of development consent cannot be questioned in legal proceedings unless commenced within three months from the date of public notice. Lesnewski's proceedings were filed outside this three-month period, raising the preliminary issue of whether section 101 barred her claims.

The court considered whether the Hickman principle, which limits the grounds upon which a decision can be challenged when a privative clause is present, applied to bar Lesnewski's claims. The court found that the principle applied to section 101, meaning that the applicant's claims could only proceed if there was manifest jurisdictional error, bad faith, or manifest ultra vires. Lesnewski argued that the alleged failure to comply with the Council's Notification Development Control Plan constituted a breach of natural justice significant enough to avoid the bar of section 101. The court held that, even assuming the breach occurred, it did not rise to the level of a manifest failure justifying the application of the Hickman principle. Similarly, the court found that the alleged lack of jurisdiction did not warrant circumvention of section 101's bar. However, concerning the construction certificate, the court found that it was not clear from section 80(12) of the Act that such certificates are immune from challenge under section 101, allowing Lesnewski's challenge on this ground to proceed.

The court's decision effectively dismissed Lesnewski's claims of natural justice failure and lack of jurisdiction, due to the bar imposed by section 101, but allowed her challenge regarding the construction certificate to continue. This nuanced application of statutory interpretation and the principles of administrative law showcased the court's careful consideration of the balance between statutory protections for development consents and the rights of aggrieved parties.

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