Lesnewski v Mosman Municipal Council

The appeal concerned a challenge to the validity of a development consent granted by Mosman Municipal Council. The appellant, Ms Lesnewski, alleged she was denied procedural fairness by the Council's failure to provide her with reduced plans when notifying her of a development application lodged by the second respondents for works on an adjoining property. The primary judge had dismissed most of the appellant's challenges, including her claim of denial of procedural fairness, finding that section 101 of the *Environmental Planning and Assessment Act 1979* (EPA Act) barred such a challenge. The appellant appealed this decision to the New South Wales Court of Appeal.

The Court of Appeal was required to determine two primary legal issues. First, whether section 101 of the EPA Act, a privative clause, prevented the Land and Environment Court from considering the appellant's allegation that she was denied procedural fairness. Second, the court considered whether the validity of the construction certificate, which was alleged to be inconsistent with the development consent, involved a jurisdictional fact.

The Court of Appeal allowed the appeal in part. It held that section 101 of the EPA Act did not preclude the Land and Environment Court from determining whether the appellant had been denied procedural fairness. The court applied the threefold *Hickman* principle, which dictates that a privative clause only protects decisions that are a bona fide attempt to exercise the power conferred, relate to the subject matter of the legislation, and are reasonably capable of reference to that power. The Court found that a denial of procedural fairness could mean a decision does not conform to these principles, and thus is not protected by the privative clause. The court remitted the issue of procedural fairness and any consequential relief to the Land and Environment Court for determination. The court also set aside the costs orders made at first instance and ordered that the costs of the proceedings at first instance be determined by the Land and Environment Court at the conclusion of the remitted proceedings. The appellant was ordered to pay the respondents' costs for abandoned grounds of appeal, with each party bearing their own costs for the remainder of the appeal.