Woolworths Ltd v Pallas Newco Pty Ltd

Woolworths Ltd (the applicant) sought judicial review of a decision by the respondent, Pallas Newco Pty Ltd (the consent authority), to grant development consent for a supermarket and associated retail premises. The dispute concerned the proper interpretation of the relevant environmental planning instrument and whether the proposed development was permissible with consent in the zone in which it was located. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether the classification of a proposed development as "permissible with consent" under an environmental planning instrument constituted a jurisdictional fact. Relatedly, the Court had to consider the effect of a privative clause, specifically section 101 of the *Environmental Planning and Assessment Act 1979* (NSW), on the reviewability of decisions affected by jurisdictional error. The Court also considered the implications of characterising a use as prohibited under the planning instrument.

The Court of Appeal held that the classification of a proposed development as "permissible with consent" was not a jurisdictional fact. Instead, it was a question of statutory construction of the environmental planning instrument. The Court reasoned that jurisdictional facts are conditions precedent to the exercise of a power, the existence of which must be established by the decision-maker. In this instance, the classification of the use was an element of the decision-making process itself, not a prerequisite to it. The Court further held that the privative clause in section 101 of the Act, which referred to the "validity of a consent," did not protect decisions from jurisdictional error, but rather limited the time within which challenges could be brought.

The appeal was dismissed.