The ""jurisdictional fact doctrine"" in New South Wales local government and environmental planning law
- Thomson Lawbook Company
- Publication Type:
- Journal Article
- Ellis-Jones Ian 2006, 'The "jurisdictional fact doctrine" in New South Wales local government and environmental planning law', Thomson Lawbook Co., vol. 12, no. 1, pp. 16-35.
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Errors made with respect to jurisdictional matters, including errors made with respect to so-called 'Jurisdictional facts", are reviewable for 'Jurisdictional error". A jurisdictional fact is some fact or fact situation which must exist in fact as a condition precedent or essential prerequisite for the primary decision-maker to exercise its jurisdiction. Over the past 15 years New South Wales superior courts have increasingly applied the so-called 'Jurisdictional fact doctrine" in local government and environmental planning law cases. This article discusses a number of important judicial authorities and seeks to identify what the key elements or indicators of the presence of a jurisdictional fact situation in a particular statutory formulation are. They include: the interrelated elements of "objectivity" and "essentiality"; the purpose of the formulation in the overall legislative scheme; the inconvenience, if any, that may arise from the fact situation being held to be jurisdictional; whether the fact situation occurs or arises as a matter for consideration or as a matter to be ultimately adjudicated upon by the tribunal of fact; whether the fact situation occurs or arises in the actual formulation of the grant of substantive power to the tribunal of fact to make the ultimate decision on the merits; and whether the fact situation occurs or arises in a formulation requiring the formation by the tribunal of fact of a specified mental state. Ultimately, it is an issue of statutory construction and legislative intention, with the reviewing court having the final say, at least on those matters.
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