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

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.
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.
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.
…

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

Background

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.
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.
The Notice of Motion was filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 1627
Decision Date: 02 September 2025

CaseChat Overview and Summary

The case of Etherington v North Sydney Council (No 2) was heard in the Supreme Court of New South Wales. The dispute arose from a motion filed by Etherington against North Sydney Council, seeking to set aside a decision made by the council. The core of the dispute centred on the council's refusal to grant a particular development approval, and Etherington's contention that this refusal was unlawful.

The primary legal issues before the court were whether the council's decision was made in accordance with the applicable legislation and whether the decision-making process was fair and lawful. Specifically, Etherington argued that the council had failed to consider relevant statutory factors and had acted outside the scope of its statutory powers. The council, on the other hand, contended that its decision was within its legal authority and that the process followed was fair and in compliance with the law.

The court carefully examined the statutory provisions and the decision-making process undertaken by the council. It found that the council had adhered to the legislative requirements and had not acted beyond its powers. The court also determined that the council had properly considered the relevant factors and that its decision-making process was fair and lawful. Consequently, the court dismissed Etherington's motion to set aside the council's decision.

Orders

Orders of the court

The orders of the Court are:

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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