It can be difficult to mount a legal challenge against an administrative decision, such as a planning approval. Courts require mistakes in the exercise of a discretion to be significant, so that they can be said to amount to an error of law, before striking down a challenged decision.

Mere differences of opinion, in a subjective sense, cannot be challenged.But what if a Court is of the view that the “opinion” relates to the determination of an objective fact, which is essential to the process of making the challenged decision? In such a case the Court, calling upon the “jurisdictional fact” principle, can decide for itself whether the “fact” existed or not, and thereby more closely investigate the merits of the decision, and not just whether the decision was made within the wide bounds of permissible discretion.

A recent wave of “jurisdictional fact” cases, and similarities between the laws challenged in those cases and the new Planning and Development Act 2007, gives cause to consider the degree to which the ACT’s new planning approval system might be exposed to similar challenges. We find that litigants will have new rights to challenge ACT development approvals, an outcome that the legislation was designed to prevent.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2008