Etherington v North Sydney Council (No 2)

[2025] NSWLEC 1627

Land and Environment Court

New South Wales

Medium Neutral Citation:

Etherington v North Sydney Council (No 2) [2025] NSWLEC 1627

Hearing dates:

11 August 2025

Date of orders:

2 September 2025

Decision date:

02 September 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Notice of Motion filed on 2 July 2025 is dismissed.

Catchwords:

Notice of Motion – application under UPCR r 36.16 to vary the orders made by the Court on 19 June 2025 in Etherington v North Sydney Council [2025] NSWLEC 1444

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 4.55

Land and Environment Court Act 1979 (NSW), s 34AA

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

Majak v Rose (No 5) [2017] NSWCA 238

Etherington v North Sydney Council [2025] NSWLEC 1444

Category:

Consequential orders

Parties:

Renata Agnieszka Etherington (First Applicant)
Paul Martin Etherington (Second Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Etheringtons Solicitors (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/459523

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: The applicant, by Notice of Motion (NoM), seeks to vary the orders made on 19 June 2025 in Etherington v North Sydney Council [2025] NSWLEC 1444 pursuant to Uniform Civil Procedure Rules 2005 (UCPR) r 36.16.

2. In Etherington v North Sydney Council [2025] NSWLEC 1444, the Court dismissed the appeal. The applicant seeks orders that the appeal be upheld, and the development consent be modified by the application made under s 4.55(2) of the Environmental Planning and Assessment Act (1979) (EPA Act), subject to the conditions of consent set in in Annexure B to the Affidavit of Mr Etherington.

3. UCPR r 36.16 is in the following terms:

36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2)…

(3)…

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

…

4. The applicant’s NoM was filed within the time prescribed under the rule, and accordingly subr (1) applies.

Background

5. On 12 June 2025, a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) was held. No agreement was reached, and I, as the presiding commissioner, terminated the conciliation conference and a hearing was held forthwith, on 12-13 June 2025.

6. The Court handed down the judgment on 19 June 2025 (Etherington v North Sydney Council [2025] NSWLEC 1444). The Court ordered that the appeal be dismissed.

7. The Notice of Motion was filed on 2 July 2025 and seeks to have the Court’s orders varied to uphold the appeal.

Applicant’s submissions

8. The applicant in their written submissions stated the following:

“This Notice of Motion, filed on 2 July 2025, seeks to have the Court’s orders varied and the appeal being upheld in part subject to conditions of consent, which orders will give effect to the Court’s decision”. [italics added]

9. The applicant submits that the Court proceeded to dismiss the appeal under a misapprehension of relevant facts or applicable law (Majak v Rose (No 5) [2017] NSWCA 238 (Majak (No. 5)) at [13]).

10. The applicant submits:

“…the Court made orders that did not reflect its decision or the issues. This can only be explained by assuming the Court proceeded on a misapprehension of the law. The misapprehension appears to be that the Court decided (not expressly) that it was duty bound to dismiss the whole modification application if it found that any of the modifications were unacceptable.

The Court dismissed the appeal despite finding that the proposed garage structure is acceptable at Judgment [33]. It also refused to modify the development consent despite there being modification that were not objected to by the Council and in respect of which the affected neighbour at No. 2 Folly Point had agreed and the Applicants did not propose any modification to the clerestory window on Level 3 other than to return it to the correct level of 900mm as approved in the original development consent dated 3 May 2023…

The conditions of consent were drafted by the parties in a way that allowed editing to give effect to the Court’s decision. Alternatively, the Court could have invited the parties to bring in orders that reflected its decision as to the unacceptable modifications (the swimming pool and pergola) and the acceptable and agreed modifications…

For these reasons the orders made do not reflect the Court’s decision. It is assumed with respect, that the Court misapprehended that it was bound to dismiss all the modifications sought. If that is the case, then the Court has power to address the problem and is duty bound to do so pursuant to s 22 Land and Environment Court Act 1979.

The applicants are not seeking to re-agitate any issues or findings of the Court. They are merely seeking orders that give effect to the findings. The current order dismissing the appeal does not enable any of the agreed modifications or acceptable modifications to be implemented.

Respondent’s submissions

11. The respondent submits that there is no identifiable misapprehension of the law or fact in the judgment and there must be one in order to exercise the power under UPCR r 36.16.

12. The applicant did not make a submission during the hearing regarding the power of the Court to modify the consent by one component of the application only, nor did the applicant submit that they would agree to the development consent being modified by the addition of the garage only.

13. The applicant is seeking to re-open the case and reverse the decision, then impose new conditions of consent.

Findings

14. In Majak (No 5), in describing the purpose of UCPR r 36.16, the Court relevantly stated the following at [12]:

The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal…

15. For the reasons set out below, I do not accept that there were readily identifiable, readily rectifiable, inadvertent errors made in dismissing the appeal.

16. Under s 4.16(4) of the EPA Act, partial consent can be granted to a development application, as follows:

(4) Total or partial consent A development consent may be granted—

(a) for the development for which the consent is sought, or

(b) for that development, except for a specified part or aspect of that development, or

(c) for a specified part or aspect of that development.

17. The exercise of the power under s 4.16(b) or (c) by the decision-maker is discretionary.

18. A development consent may be modified under s 4.55 of the EPA Act. Under s 4.55(2), a consent authority may, on application being made by the applicant (or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations) modify the consent if the matters under s 4.55(2) are satisfied. There is no equivalent power to s 4.16(4)(b) and (c) for a modification application.

19. A development consent may be partially modified under s 4.55 if the matters under subs (2) are satisfied, but there is no onus on the consent authority, or the Court exercising the functions of the consent authority, to modify the consent by one element only. There is, however, no explicit power to do so.

20. The applicant made a reference during closing submissions to approving "the appeal in whole or in part" (Court transcript 130337, p 79, line 50) and in their submission on the NoM quoted above at [8]. An appeal can be either upheld or dismissed. It cannot be "upheld in part". The applicant sought only the modification of the development consent by the application that was before me. There was no application or submission made by the applicant to modify the consent with only one component of the application (should I be minded to do so), other than the fleeting reference quoted to “approving the appeal in whole or in part” in relation to a condition of consent requiring the deletion of proposed trees on the western boundary.

21. The applicant filed one version only of the conditions of consent (Ex K) which addressed the entirety of the modification application. I do not accept that either the Council’s version or the applicant’s version of the conditions of consent were drafted by the parties in a way that “allowed editing to give effect to the Court’s decision”. It is not for the Court to “edit” conditions of consent. A determination can be made by the Court on a disputed condition following evidence and/or a submission made by the parties regarding the disputed condition.

22. I was not bound to modify the development consent by one element only of the modification application, despite my finding at [33] of the judgment.

23. I do not accept the applicant’s submission that the Court has power to make orders under r 36.16, because I did not proceed in making orders to dismiss the appeal according to some misapprehension of the facts or the relevant law. Contrary to the applicant’s submission, I did not consider I was duty bound to dismiss the appeal because I found the majority of the components proposed by the modification application were unacceptable.

Orders

24. The orders of the Court are:

1. The Notice of Motion filed on 2 July 2025 is dismissed.

Susan O’Neill

Commissioner of the Court

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Decision last updated: 02 September 2025