Trives v Hornsby Shire Council

This case concerned an appeal to the New South Wales Court of Appeal regarding the validity of complying development certificates (CDCs) issued by an accredited certifier. The Hornsby Shire Council (the respondent) challenged the validity of these certificates, alleging that the developments in question did not, in fact, constitute "complying development" under the relevant planning instruments. The applicant, Trives, sought to uphold the validity of the CDCs.

The central legal issue before the Court of Appeal was whether the characterisation of a proposed development as "complying development" by an accredited certifier was a jurisdictional fact. This question determined whether the Supreme Court, and by extension the Land and Environment Court, retained the power to review the certifier's decision, particularly in light of a privative clause in the *Environmental Planning and Assessment Act 1979* (NSW) that limited the time for review. The Court also considered whether the validity of the CDC depended on the certifier's satisfaction that the development met the criteria for complying development, or if this was a matter that could be reviewed externally.

The Court of Appeal reasoned that the characterisation of development as "complying development" was not merely a descriptive label but an operative precondition to the exercise of the power to issue a CDC. Applying principles derived from cases concerning jurisdictional facts, the Court held that if a development did not, in reality, meet the definition of complying development, then the certifier lacked the power to issue a CDC for it. This meant that the validity of the CDC was not solely dependent on the certifier's subjective satisfaction but was subject to objective scrutiny. The Court distinguished the present case from *Woolworths Ltd v Pallas Newco Pty Ltd*, finding that the statutory scheme contemplated a review of whether the development truly met the criteria for complying development.

The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the Land and Environment Court that had answered separate questions in favour of the Council. The Court ordered that the Council's applications to the Land and Environment Court be determined according to law and ordered the Council to pay the applicant's costs.