Jurisdictional error: why a single legal defect can void a consent
For proponents in the mining, waste management and quarrying sectors, obtaining a development consent or project approval is often the culmination of years of environmental assessment, community consultation and regulatory engagement. It is an investment measured in millions of dollars.
Yet a single legal defect in the assessment and approval process can render that consent void. Not merely voidable or irregular - void from the beginning, as if it had never been granted.
That is the consequence of jurisdictional error: a category of legal defect so fundamental that the decision-maker is taken to have acted beyond the limits of its statutory power. Since the High Court’s landmark decision in Kirk v Industrial Relations Commission of NSW [2010] HCA 1, it has been settled that no State legislation can prevent a court from reviewing a decision for jurisdictional error. The three-month protection clause in section 4.59 of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act) provides no shield.
Recent decisions of the NSW Court of Appeal have brought this issue into sharp focus for the resources and waste sectors. In DAMSHEG Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163, the Court declared the development consent for the expansion of the Mount Pleasant coal mine in the Hunter Valley invalid because the Independent Planning Commission failed to consider the project’s Scope 3 greenhouse gas emissions. That decision has now been granted special leave to appeal to the High Court.
This article examines the jurisdictional error risks most relevant to mining, waste and quarry approvals, identifies where recent projects have come unstuck, and sets out the practical steps that proponents and their advisers should take to protect the integrity of their consents.
What is jurisdictional error?
Jurisdictional error occurs when a decision-maker acts outside the limits of its statutory authority. In the planning context, it means a consent authority has made a decision it had no power to make, or has made the decision in a way that is fundamentally flawed.
A decision affected by jurisdictional error is void. It has no legal effect. Critically, there is flexibility in respect of when such a challenge can be brought (which can occur after the 3-month period specified in section 4.59).
The recognised categories include:
- Granting consent to prohibited development - where the decision-maker had no power to approve the development at all.
- Failing to consider a mandatory relevant consideration - such as failing to consider the likely environmental impacts of a project under s 4.15(1)(b) of the EP&A Act.
- Taking into account an irrelevant consideration - where the decision-maker relies on a matter the legislation does not permit.
- Acting in breach of procedural fairness - including failing to properly notify affected persons or failing to consider public submissions.
- Acting on a fundamental misunderstanding of the law - where the error is so serious that the decision-maker has misapprehended the limits of its own jurisdiction.
- Legal unreasonableness - a decision so unreasonable that no rational decision-maker could have reached it.
Unlike non-jurisdictional errors of law (which can be protected by privative clauses and limitation periods), jurisdictional errors sit beyond the reach of any statutory protection. As the Court of Appeal observed in Ku-ring-gai Council v West [2017] NSWCA 54, the boundaries of jurisdictional error have been expanding, widening the range of defects that can be used to challenge a consent.
The role of the Land and Environment Court Act 1979
The Land and Environment Court Act 1979 (NSW) (the LEC Act) provides the principal statutory framework through which jurisdictional error challenges to the grant of development consents are brought. Several provisions are of particular significance for proponents in the mining, waste and quarry sectors.
First, section 20(2) of the LEC Act confers on the Court jurisdiction to hear proceedings for judicial review of decisions made by consent authorities, including decisions to grant or refuse development consent under the EP&A Act. It is under this provision that challenges for jurisdictional error - including failure to consider mandatory relevant considerations, absence of jurisdictional preconditions and legal unreasonableness - are typically commenced. The Court's Class 4 jurisdiction (environmental planning and protection), established by section 20(1), also empowers the Court to make declarations and grant injunctions in relation to planning matters, providing a further avenue for challenge.
Second, section 9.45 of the EP&A Act (which operates in conjunction with the LEC Act's jurisdictional provisions) confers open standing, enabling "any person" to bring proceedings in the Court to remedy or restrain a breach of the EP&A Act or an environmental planning instrument. This broad standing provision means that proponents cannot assume that only directly affected neighbours or objectors will have standing to challenge a consent - community groups, environmental organisations and competitors may all bring proceedings.
Third, section 34 of the LEC Act provides for conciliation conferences as a means of resolving merit appeals. As the Al Maha decision illustrates, consents arising from s 34 agreements are not immune from jurisdictional error. Decision-makers presiding over conciliation conferences must ensure that all jurisdictional preconditions are satisfied and expressly recorded in the agreement or determination, as the informality of the conciliation process does not relax the requirements of jurisdictional compliance.
These provisions collectively mean that the LEC Act facilitates, rather than constrains, the capacity of third parties to bring jurisdictional error challenges to development consents - often many months after the consent was granted.
Where recent projects have come unstuck
The following recent cases illustrate how jurisdictional error has affected planning approvals in practice, with particular relevance to mining, waste and quarry developments.
Failure to consider mandatory environmental impacts
DAMSHEG Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163
MACH Energy sought a modification to expand the Mount Pleasant open cut coal mine in the Hunter Valley, increasing approved production from 10.5 Mtpa to 21 Mtpa of run of mine coal. The Independent Planning Commission approved the modification.
The Court of Appeal declared the consent invalid, finding that the Commission failed to consider the likely environmental impacts of the project’s Scope 3 greenhouse gas emissions (the emissions resulting from the combustion of the coal by end users) on the locality, as required by s 4.15(1)(b) of the EP&A Act. The error was characterised as jurisdictional because s 4.15(1)(b) imposes a mandatory consideration that the decision-maker must address.
The lesson: Proponents of mining and other carbon-intensive projects must ensure that environmental assessment documents address downstream and cumulative emissions impacts. Failure by the consent authority to consider these matters may render the entire consent void.
Status: Special leave to appeal to the High Court has been granted ([2025] HCADisp 297). The outcome will be determinative for the resources sector.
Legal unreasonableness in certifier decisions
Cameron v Woollahra Municipal Council [2024] NSWCA 216
A development consent granted for a property in Bellevue Hill was modified to expressly refuse a cellar level, with approved plans annotated “Cellar Level Deleted.” A condition required the area to remain unexcavated. A private certifier subsequently issued a construction certificate that permitted excavation of the very area the consent prohibited.
The Court of Appeal held the certifier’s decision was legally unreasonable and involved jurisdictional error. The construction certificate was partially set aside. The Court confirmed that judicial review under s 20(2) of the LEC Act is available to challenge certifier decisions, reinforcing that the LEC's supervisory jurisdiction extends not only to consent authorities but also to private certifiers exercising statutory functions under the EP&A Act.
The lesson: Construction certificates must be rigorously checked for consistency with the development consent. Jurisdictional error is not limited to consent authorities - the decisions made by private certifiers are equally exposed.
Missing jurisdictional preconditions
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
A development consent was granted by a Commissioner of the Land and Environment Court following a s 34 conciliation conference. The consent approved development that encroached on neighbouring land owned by Al Maha. Al Maha had not provided owner’s consent to the DA.
The Court of Appeal quashed the consent, identifying two jurisdictional errors: (1) the absence of owner’s consent from Al Maha; and (2) the Commissioner’s failure to expressly state satisfaction with the clause 4.6 variation request.
The lesson: Jurisdictional preconditions cannot be assumed or glossed over, particularly in s 34 conciliation agreements. Decision-makers must expressly record their satisfaction on all mandatory matters. For mining and quarry proponents, this means ensuring that owner’s consent from all affected landholders is properly documented.
Failure to consider assessment requirements
Brown v Randwick City Council [2011] NSWLEC 172 and Tweed Business [2012] NSWLEC 166
In Brown, Preston CJ held that failure to consider the provisions of a DCP, ecologically sustainable development principles, and public submissions when assessing a DA constituted jurisdictional error. In Tweed Business, Biscoe J held that failure to substantially comply with public notification requirements was a jurisdictional defect.
The lesson: Every element of the assessment checklist matters. For complex mining, waste or quarry DAs involving extensive public notification, specialist environmental studies and DCP compliance, cutting corners at the assessment stage creates vulnerabilities that may surface months later.
What the protection clause will — and won’t - save
Section 4.59 of the EP&A Act provides that legal proceedings to challenge the validity of a development consent cannot be commenced more than three months after public notice of the grant of consent is given in accordance with the regulations.
Many proponents assume this clause provides certainty. It does not.
Following Kirk, the protection clause cannot prevent a challenge based on jurisdictional error. It is also subject to strict notice requirements under clause 124 of the Environmental Planning and Assessment Regulation 2021; if the public notice is defective, the three-month period never starts running.
In practical terms, section 4.59 may protect against:
- Non-jurisdictional errors of law on the face of the record - for example, a minor misapplication of a DCP provision that does not go to jurisdiction.
- Procedural irregularities that do not amount to a denial of procedural fairness - for example, minor deficiencies in the assessment report.
However, section 4.59 will not protect against:
- Consent granted to prohibited development.
- Failure to consider a mandatory relevant consideration under s 4.15;
- Absence of jurisdictional preconditions such as owner’s consent (Al Maha);
- Denial of procedural fairness (not covered by the clause); and
- Legal unreasonableness (Cameron v Woollahra).
The implications for mining, waste and quarry projects - which often face sustained community opposition and intense regulatory scrutiny - are clear. A consent that appears secure after three months may be challenged many months later if a jurisdictional defect is identified (noting also the ability to extend the time under rule 59.10 of the Uniform Civil Procedure Rules 2005).
Understanding the jurisdictional fact distinction
One area where the courts have provided welcome clarity is the distinction between prohibited development and development standards.
Whether development is prohibited under a planning instrument is a jurisdictional fact. This was established in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 and has not been disturbed. A consent to prohibited development is void, regardless of when the error is discovered.
By contrast, the Court of Appeal has now confirmed in a series of decisions - Ross v Lane [2022] NSWCA 235, El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78, and Lahoud v Willoughby City Council [2024] NSWCA 163 - that compliance with development standards (such as height limits and floor space ratios) is not a jurisdictional fact. The Court’s reasoning, grounded in the construction of s 4.15(1)(a), was driven by public policy: development consents should not be perpetually open to challenge based on new evidence about factual compliance with numerical controls.
For mining and quarry proponents, this distinction is particularly important. Extraction limits, setback distances and noise controls in environmental planning instruments may be characterised as development standards rather than prohibitions, meaning that post-consent challenges based on alleged non-compliance with those standards face a higher hurdle. However, this does not eliminate the need for thorough assessment: other grounds of jurisdictional error (failure to consider mandatory matters, legal unreasonableness) remain available.
Best practice: protecting your approvals
Based on the current case law, we recommend the following as best practice for proponents in the mining, waste and quarry sectors:
1. Ensure comprehensive environmental assessment
Following DAMSHEG, environmental impact statements and assessment reports must address the full scope of mandatory considerations under s 4.15(1), including downstream and cumulative environmental impacts. For carbon-intensive projects, this includes Scope 3 emissions. For waste facilities, this includes cumulative impacts on groundwater, air quality and surrounding amenity. Assessment documents should demonstrate that the consent authority has been presented with the information needed to address every paragraph of s 4.15(1) - not just the contentious issues.
2. Verify all jurisdictional preconditions before lodgement
Before lodging a DA or modification application, confirm that all jurisdictional preconditions are satisfied:
- Owner’s consent from all landowners affected by the proposed development, including where access roads, pipelines or conveyor systems cross neighbouring land.
- Clause 4.6 variation requests where any development standard is exceeded. Even though compliance with development standards is not a jurisdictional fact, the requirement to seek a variation where one is necessary has been treated as a jurisdictional precondition (Al Maha).
- Biodiversity Development Assessment Reports where the Biodiversity Conservation Act 2016 thresholds are triggered, which is common for greenfield quarry and mining sites.
- SEARs compliance for State significant development and designated development.
3. Ensure the assessment report addresses every mandatory matter
Following HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, the Court must be satisfied of all jurisdictional preconditions, even if not raised by the parties. This means the assessment report and statement of reasons should systematically address every element of s 4.15(1), including provisions of applicable EPIs, DCPs, likely impacts, site suitability, submissions and the public interest. A checklist approach is prudent.
4. Record reasons with specificity
The Al Maha principle requires decision-makers to expressly state their satisfaction on jurisdictional matters. For Commissioners of the LEC in conciliation conferences conducted under s 34 of the LEC Act, this means the agreement or determination must specifically record satisfaction with clause 4.6 variations and other jurisdictional preconditions. For consent authorities, the statement of reasons or assessment report should demonstrate a genuine engagement with each mandatory consideration - not boilerplate language.
5. Strictly comply with notification requirements
Public notification must strictly or substantially comply with the EP&A Act and Regulation. For mining and quarry DAs that require notification to large numbers of landowners, ensure that the notification process is properly documented and that all required information is included. Additionally, the public notice given for the purposes of s 4.59 must strictly comply with clause 124 of the Regulation to engage the three-month protection period.
6. Conduct a post-consent jurisdictional audit
We increasingly recommend that proponents of major projects commission a jurisdictional audit shortly after consent is granted and before commencing substantive works. This involves a structured review of the assessment process, the statement of reasons and the consent instrument to identify any potential jurisdictional vulnerabilities. Addressing defects early - for example, by seeking a modification to correct an error - is far preferable to defending a judicial review challenge after construction has commenced.
7. Monitor evolving case law
The doctrine of jurisdictional error continues to evolve. The outcome of the DAMSHEG High Court appeal will be significant for the resources sector, particularly in clarifying the scope of mandatory environmental considerations. Proponents should ensure their legal advisers are monitoring developments and updating standard processes accordingly.
What this means for future planning approvals
The current case law reveals two competing tensions in the development of jurisdictional error doctrine:
Greater stability for consents: The El Khouri line of authority, which holds that compliance with development standards is not a jurisdictional fact, provides increased certainty for proponents. Post-consent challenges based on new evidence that a building exceeds a height control, or that an extraction rate exceeds a numerical limit, are now far less likely to succeed.
Greater scrutiny of assessment processes: At the same time, the DAMSHEG decision demonstrates that courts will rigorously examine whether consent authorities have addressed all mandatory considerations. The obligation extends to downstream and cumulative environmental impacts — a significant expansion that is particularly consequential for mining, energy and waste projects.
The materiality requirement identified in Lord v Broken Hill Cobalt Project Pty Ltd [2024] NSWCA 305 may provide some comfort, suggesting that not every legal error will be jurisdictional — the error must be material to the decision. However, this principle is still developing and should not be relied upon as a safeguard against substantive assessment deficiencies.
The High Court’s consideration of DAMSHEG will be the most consequential development for this area of law in recent years. All proponents of mining, energy and waste projects should be watching closely.
If you have concerns about the validity of an existing consent, are planning a new project approval, or wish to discuss how the evolving jurisdictional error case law affects your operations, please contact Simon Ball or Luke Walker from our Environment and Planning team.
