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[2026] NSWCA 137
mixed. The Court granted leave on grounds 1 and 2 but dismissed the appeal on them; granted leave and upheld ground 3 concerning the remitter restrictions; refused leave on ground 4; set aside order 3 made on...
The Court of Appeal decided that the Commissioner was not legally required to approve the parts of a development-consent modification application that she found acceptable or that the Council did not oppose. The power to decide a modification application was discretionary, and the Commissioner could reasonably refuse the whole application after finding that the pergola and raised pool were unacceptable. The Court did not decide whether the statute permits partial approval of a modification application. It did decide that the primary judge went too far by directing the Commissioner not to approve agreed modifications or the garage alone when the matter returned for redetermination. The applicants’ costs challenge failed.
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1,905 words · generated 07/10/2026
Paul and Renata Etherington sought to modify a development consent for a dwelling at 58 Cowdroy Avenue, Cammeray. Their application under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) proposed changes including a garage enclosure, pergolas, and raising the swimming pool. The consent authority, North Sydney Council, approved the lower-level awning and made changes affecting the clerestory window and privacy screening, but did not support three principal modifications: the garage enclosure, the upper-level louvred pergola and the raised pool ([20]-[29]).
10 cited instruments linked from this judgment.
The Etheringtons appealed to the Land and Environment Court under s 8.9. That appeal involved a merits review: the Court exercised the Council’s statutory decision-making function rather than merely reviewing the Council’s reasons for legal error ([30], [72]). Commissioner O’Neill found that the proposed development remained substantially the same as the approved development. She considered the garage enclosure acceptable, but found the upper-level pergola would unreasonably affect views and add to bulk and scale, and that raising the pool would harm the neighbouring property’s rear-yard amenity ([39]-[42]). She dismissed the appeal.
The applicants then sought to have the Commissioner set aside that outcome and approve at least the garage and certain modifications that were not opposed. The Commissioner declined, noting that the applicants had not made an application or submission for approval of only one component, and that s 4.55 did not contain an express equivalent to s 4.16(4), which allows approval of part of a development application ([43]-[48]).
On a subsequent s 56A appeal, the primary judge dismissed arguments that the Commissioner was obliged to approve the acceptable or unopposed modifications, but upheld a ground that the Commissioner had not adequately explained the refusal of the raised-pool modification, particularly in relation to the expert evidence ([49]-[57], [82]). The primary judge remitted the matter, but imposed limits: the applicants could not ask the Commissioner to approve agreed modifications or the garage alone ([59]-[60], [86]).
The Court of Appeal dismissed the appeal on the arguments about a duty to approve acceptable or unopposed modifications. It upheld the challenge to the restrictions in the remitter order, set that order aside and remitted the matter to the Land and Environment Court to be determined according to law ([96]-[97]).
The first issue was whether s 22 of the Land and Environment Court Act 1979 (NSW) required the Commissioner to give effect to findings that the garage was acceptable and some other changes were unopposed. The Court held that s 22 was not the source of such a duty. It concerns the grant of remedies in respect of legal or equitable claims. The statutory merits appeal instead involved re-exercising the power to determine a modification application under s 4.55(2) ([71]-[77]).
The Court described the Commissioner’s function as a discretionary statutory decision. The statutory requirements in s 4.55 constrain that discretion, and the decision remains subject to the common-law limit of legal unreasonableness. But, once the relevant statutory requirements are met, s 4.55 does not require a particular outcome, such as approval rather than refusal ([73]). The applicants therefore could not use s 22 to turn favourable findings or Council non-opposition into a duty to approve particular components.
The legal-unreasonableness argument also failed. The Commissioner had found that the pergola and pool modifications had more significant adverse impacts. Given those findings, it was reasonably open to refuse the modification application as a whole rather than approve only the less impactful components ([79]-[80]). The fact that another decision-maker might reasonably have approved some parts did not establish legal unreasonableness. The Court relied on the principle that a decision on which reasonable minds may differ is not for that reason legally unreasonable, referring to Minister for Immigration and Citizenship v SZMDS and Minister for Immigration and Citizenship v Li ([80]).
The remitter issue was different. The primary judge had found an error because the Commissioner had not adequately analysed expert evidence about the raised pool ([82]). That finding meant that further factual analysis was needed before the modification application could be determined again ([92]). The primary judge could remit the matter for that work, but could not prescribe that the Commissioner must exclude particular outcomes when exercising the s 4.55(2) power. The directions barring approval of agreed modifications or the garage alone impermissibly constrained that statutory decision-making ([87]-[94]).
The Court did not accept the challenge to the primary judge’s costs order. The primary judge had ordered the Council to pay one third of the applicants’ costs below. The Court considered that the applicants had not identified an error of the kind required by House v The King to justify leave to appeal from that discretionary decision ([95]).
The judgment’s central interpretation of s 22 is that it does not dictate how the Land and Environment Court must decide a statutory merits-review application under s 4.55(2). As explained at [75]-[77], the Court treated “remedies” in s 22 as relief enforcing a right or redressing a wrong, and regarded an application to modify a development consent as a statutory application for a discretionary decision, not a legal or equitable claim.
The decision also affirms that the statutory merits-review function involves re-exercising the consent authority’s power. The Court described the Land and Environment Court as metaphorically standing in the Council’s shoes ([72]). The decision-maker must satisfy the statutory conditions and consider relevant matters, but retains decisional freedom within those boundaries, subject to legal unreasonableness ([73]).
A significant question was left open. The Court did not determine whether s 4.55 permits approval of only some modifications in an application. Section 4.55 contains no express equivalent to s 4.16(4), but the possibility of an implied power had not been settled by authority. The Court proceeded on the assumption that partial approval might be available, because that allowed it to decide the appeal without resolving the issue ([5], [67]-[68]). Leeming JA likewise said that his reasons should not be understood as expressing a view either way ([5]).
The remitter ruling clarifies a different boundary: a judge deciding a s 56A appeal can send a matter back for further determination, but cannot use the remitter order to dictate how the Commissioner must exercise the separate statutory discretion. The judgment does not displace the possibility of an appellate court disposing of a matter where no further fact-finding is needed. It notes that this may occur in restricted circumstances, but found that further findings were necessary here ([91]-[93]).
At [71], Preston CJ of LEC says s 22 does not confer jurisdiction; it operates where jurisdiction already exists and allows relief within that jurisdiction. In plain English, s 22 could not create a special obligation to approve the modifications simply because the case was before the Land and Environment Court.
At [76], the Court says a person may apply under s 4.55(2), and the consent authority must determine the application, but the applicant has no entitlement to a particular outcome. In plain English, a right to have an application decided is not the same as a right to have it approved.
At [80], the Court says that the Commissioner could reasonably refuse the whole application after finding that the pergola and pool modifications were sufficiently unacceptable. In plain English, favourable findings on some components did not require the Commissioner to sever them from the rest of the application.
At [87]-[90], the Court explains that the remitter restrictions were outside the primary judge’s power. In plain English, the primary judge could require the matter to be reconsidered according to law, but could not rule out the Commissioner approving specified components when making the new statutory decision.
At [92], the Court points to the further work required: analysis of expert evidence and additional factual findings about the pool. This explains why the primary judge could not simply decide the modification application herself on the material as it stood.
The judgment is most directly relevant where a development-consent modification application is considered on merits appeal, and a party argues that acceptable or unopposed parts must be approved even though other components are refused. It addresses arguments based on s 22 and legal unreasonableness in that setting ([66]-[81]).
It is also relevant where a s 56A appeal results in remittal to a Commissioner, and the remitter order attempts to restrict the possible outcomes of the Commissioner’s renewed decision. The Court’s reasoning focuses on a remitter that required the application to remain indivisible for the applicants’ purposes and barred them from seeking approval of agreed modifications or the garage alone ([86]-[94]).
The decision does not settle whether partial approval is available under s 4.55. Any argument that depends on that statutory power must account for the express reservation at [5] and [67]-[68]. The decision should therefore not be read as conclusively establishing either that a consent authority may approve only some modifications or that it may never do so.
The judgment text supplied here reports no subsequent judicial treatment of Etherington v North Sydney Council [2026] NSWCA 137. It is not possible, on this source alone, to say whether later courts have followed, distinguished, applied or questioned it.
The judgment itself discusses earlier authorities. It cites National Parks and Wildlife Service v Stables Perisher Pty Ltd for the role of s 22 ([71]), Ku-ring-gai Council v Bunnings Properties Pty Ltd for the description of the Court’s merits-review function ([72]), and Li and SZMDS in its discussion of discretionary decision-making and legal unreasonableness ([73], [80]). It also refers to Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council on circumstances in which an appellate court may dispose of a matter without further fact-finding ([91]). These are the relationships expressly available from the judgment; later treatment cannot be inferred from them.
The main unresolved statutory question is whether s 4.55 allows a consent authority, or the Court on merits appeal, to approve only some modifications sought in a single application. The judgment notes the absence of an express partial-approval provision equivalent to s 4.16(4), while leaving open whether such a power is implied ([4]-[5], [67]-[68]). The decision’s reasoning on grounds 1 and 2 proceeds on an assumption favourable to the applicants and should be read in that light.
A further issue is how the discretionary character of s 4.55 applies where some components are acceptable and others are not. This judgment establishes that favourable findings do not, by themselves, create a duty to approve those parts under s 22 or make refusal of the whole legally unreasonable ([77], [79]-[81]). It does not set out an exhaustive framework for deciding when a decision to refuse a whole application might be legally unreasonable on different facts.
The remitter decision also leaves room for case-specific questions about the scope of directions that can lawfully accompany a remittal. Here, further factual findings were needed, and the primary judge had no authority to dictate the Commissioner’s ultimate decision ([92]-[94]). The judgment recognises that a court may sometimes dispose of a matter itself where no further findings are needed, but does not define every circumstance in which that may occur ([91]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Etherington v North Sydney Council [2026] NSWCA 137
Hearing dates: 22 June 2026
Date of orders: 20 July 2026
Decision date: 20 July 2026
Before: Leeming JA at [1];
Free JA at [17];
Preston CJ of LEC at [18]
Decision: (1) Grant leave to appeal on grounds 1 and 2, but dismiss the appeal on those grounds.
(2) Grant leave to appeal on ground 3, and uphold the appeal on that ground.
(3) Refuse leave to appeal on ground 4.
(4) Set aside order 3 of Pain J made on 23 March 2026.
(5) Instead of order 3, remit the matter in proceedings no 2024/459523 to the Land and Environment Court to be determined according to law.
(6) Order the applicants to pay the respondent’s costs of the proceedings in this Court.
(7) If any party wishes to be heard in relation to the order as to costs, application may be made within the period specified in UCPR r 36.16.
Catchwords: ENVIRONMENT AND PLANNING – modification of development consent – only some modifications acceptable or agreed – decision to refuse modification application instead of approve in part – whether duty to determine matter completely and finally – terms of remitter order – whether outside power
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.55, 8.9
Interpretation Act 1987 (NSW), s 33
Judicature Act 1873 (UK), s 24
Land and Environment Court Act 1979 (NSW), ss 17, 22, 56A
Supreme Court Act 1970 (NSW), ss 58-62
Environmental Planning and Assessment Regulation 2021, s 113
Uniform Civil Procedure Rules 2025 (NSW), r 36.16
Cases Cited: Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104
Coroneo v Australian Provincial Assurance Association Ltd (1935) 35 SR (NSW) 391
Etherington v North Sydney Council [2025] NSWLEC 141
Etherington v North Sydney Council [2025] NSWLEC 1444
Etherington v North Sydney Council (No 2) [2025] NSWLEC 1627
Etherington v North Sydney Council (No 2) [2026] NSWLEC 27
Gaunt v Fynney (1872) LR 8 Ch 8
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300
Category: Principal judgment
Parties: Paul Martin Etherington (First Applicant)
Renata Agnieszka Etherington (Second Applicant)
North Sydney Council (Respondent)
Representation: Counsel:
P Tomasetti SC with J Y Li (Applicants)
T To SC with M D Harker (Respondent)
Solicitors:
Etherington Solicitors (Applicants)
Marsdens Law Group (Respondent)
File Number(s): 2026/21405
Publication restriction: Nil
Mr and Mrs Etherington (Etherington) seek leave to appeal against the decision of the primary judge of the Land and Environment Court. The primary judge had upheld only one ground of an appeal under s 56A of the Land and Environment Court Act 1979 (Court Act) against a Commissioner’s decision refusing an application to modify a development consent. Etherington had sought several modifications to a development consent under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Three modifications were opposed by the North Sydney Council (the Council): a two-car garage, a louvred pergola, and the raising of the swimming pool. The Council did not oppose two other modifications to change a privacy screen and change the height of the clerestory window. The Commissioner found the garage to be acceptable, but not the pergola and pool raising. The Commissioner did not address the other modifications. The Commissioner refused the modification application instead of approving in part the acceptable and not opposed modifications.
On the s 56A appeal, Etherington argued that the Commissioner erred in law by failing to approve in part the modification application (ground 1), failing to determine principal contested issues (ground 2) and failing to provide adequate reasons (ground 3). The primary judge upheld the ground of failure to give reasons but dismissed the other grounds of appeal. The primary judge remitted the matter to the Commissioner to be determined according to law and the primary judge’s reasons, which constrained how the Commissioner could determine the modification application.
Etherington sought leave to appeal against the primary judge’s decision to:
(a) dismiss grounds 1 and 2 of the appeal (grounds 1 and 2); (b) uphold ground 3 of the appeal but not make an exclusionary remitter order (ground 3); and (c) order the Council to pay only one third of Etherington’s costs (ground 4).
Grounds 1 and 2: Duty to approve acceptable or agreed modifications?
Ground 3: The terms of the remitter
Ground 4: The terms of the cost**s order
LEEMING JA: I agree with Preston CJ of LEC. The following is by way of supplementing, rather than qualifying, his Honour’s reasons, and presupposes familiarity with them.
The main ground of the appeal (ground 1) turned on s 22 of the Land and Environment Court Act 1979 (NSW):
22 Determination of matter completely and finally
The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
It was contended that by reason of s 22, the Commissioner had erred in dismissing the appeal from the refusal of the Etheringtons’ modification application in its entirety, rather than granting it to the extent that the Council had not opposed it. The submission was that s 22 created an obligation upon the Court constituted by a Commissioner to grant those aspects of a modification application which were either (a) not in contest, and which fell within the scope of the power (because the development is “the same or substantially the same” development) or (b) were conditions which (although contested) the Commissioner found were justified, even in the absence of a party asking for such more limited modification.
In a sense, the entirety of the debate was somewhat artificial, because it proceeded on the basis that s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) conferred power to accede to a modification application in part. There is a question about that, and it may be noted that s 4.55 is not conferred in terms that permit the grant of consent in part, unlike the power to grant approval to a development application in s 4.16. Indeed, the tenor of some of the submissions advanced both at first instance and on appeal was that the function exercised by the Land and Environment Court hearing and determining an appeal from the refusal of an application to modify a consent under s 4.55 was identical to the function exercised by the Land and Environment Court hearing and determining an appeal following the refusal of a development application under s 4.16. That is not necessarily so. First, the powers are distinct, being found in separate sections, and are treated distinctly, notably by s 4.55(4) providing that a modification in accordance with this section is taken not to be the granting of a development consent under this Part, although a reference to the consent is to the consent as so modified. Secondly, the powers are distinctly worded, with the latter but not the former being stated to extend to a power to accede to the application in part. Thirdly, the powers have distinct consequences. In particular, a proponent which obtains development consent is under no obligation to commence the development and thereby subject itself to the conditions which have been imposed (in which event the consent will eventually lapse); on the other hand, a proponent which obtains a modification of a consent which has been commenced is immediately and automatically subject to the conditions of the consent as modified.
As Preston CJ of LEC observes, whether there is power to accede to a modification application in part is unresolved, and this Court heard no submissions on that point. Because it is possible to resolve the appeal without determining that question by assuming favourably to the Etheringtons that there is such power, that is the appropriate course to follow. These reasons are not to be understood as expressing any view, one way or the other, bearing on that question.
The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
The words in bold are substantially identical to the language in s 22 upon which the Etheringtons relied.
The premise of s 24(7) was the newly created High Court of Justice which had vested in it the jurisdiction which had been vested in or was capable of being exercised by 11 named courts (including the High Court of Chancery, the Courts of Queen’s Bench, Common Pleas and Exchequer, the High Court of Admiralty, the Court of Probate and so on). Subsection (7) of s 24 was also the seventh and final subsection in a provision which was directed to the basic consequences of the Judicature system: entitling equitable defences to be given effect in answer to legal claims, and empowering equitable remedies to be granted and equitable estates to be recognised, and abolishing common injunctions. Sections 58-62 of the Supreme Court Act 1970 broadly correspond to those earlier subsections.
Before the Judicature legislation was enacted the position was that proceedings could be dismissed for jurisdictional reasons based on whether a party’s claim was legal or equitable or whether the relief sought was legal or equitable. For example, a plaintiff which had brought proceedings in the Court of Chancery for an injunction to restrain a nuisance which failed as a matter of discretion might be directed to start afresh at common law if damages were also sought: see for example Gaunt v Fynney (1872) LR 8 Ch 8. Or a plaintiff which wished to challenge the exercise by a mortgagee of a power of sale which commenced on the “common law side” of the Supreme Court would have the action dismissed without regard to the merits, no differently from that brought by Mr Coroneo in Coroneo v Australian Provincial Assurance Association Ltd (1935) 35 SR (NSW) 391. Examples could be multiplied; one of the main points of the Judicature legislation of which s 22 formed part was to prevent the need for parties to commence separate proceedings because of the division of common law and equitable jurisdiction in the courts.
When that is borne in mind, it may readily be seen that the words “all such remedies” in respect of “any legal or equitable claim” are apt to bear their ordinary technical legal meaning, extending to equitable remedies in equity’s auxiliary jurisdiction in respect of a claim at law.
The fact that s 22 derives from one aspect of the Judicature legislation does not of itself entail that when that provision was enacted in a different context, in the statute constituting a new specialist superior court of record, it bears the same meaning. Context matters, and the same words in a different context might in principle bear a different meaning, especially when the other Judicature provisions are not found in the statute. But there are limits to the extent to which statutory language can be stretched.
The Etheringtons made much of the proposition that the granting of relief “on such terms and conditions the Court thinks just” might be apt to describe the function of the Land and Environment Court constituted by a Commissioner exercising a merits jurisdiction. But that submission disregards the immediately preceding words “either absolutely or”, which detract from the conclusion that they extend to allowing an appeal from a modification application in part. The natural meaning of those words is that they reflect the fact that equitable relief has always been available on terms. The Etheringtons’ submission also neglects the fact that s 22 is expressly confined to those remedies to which a party is entitled “in respect of a legal or equitable claim”. That language mirrors the force of the same words in its ancestor, s 24(7). The statutory provisions which confer merits jurisdiction on the Land and Environment Court, whereby a person dissatisfied with a decision in a planning application may obtain from a Court clothed with the same powers as the decision-maker a review of that decision on the merits, are well removed from answering the description of “a legal or equitable claim”. The claim is under statute. The consent which issues from the Court is not readily described as a “remedy”; instead it is a product of a particular statutory regime conferring merits review of executive action. Another way of putting this is that rather than being a “remedy” responding to a “legal or equitable claim”, the order sought by the Etheringtons is nothing more nor less than the order which the Court, standing in the shoes of the original decision-maker, considers to be the appropriate order.
The Commissioner had dismissed an appeal by Etherington against the decision of the Council to approve only in part Etherington’s application to modify a development consent granted on 3 May 2023 for the demolition of an existing dwelling house and the erection instead of a new dwelling house on the waterfront at 58 Cowdroy Avenue, Cammeray on terms with which Etherington was dissatisfied.
Etherington had applied on 3 July 2024 under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to modify the development consent to:
(a) erect a new roof over the hard stand parking area to enclose a garage; (b) erect a new operable metal louvre pergola over the upper level paved terrace; (c) erect a new fixed metal pergola (or awning) over the small terrace on the lower level; and (d) raise the height of the swimming pool by 900mm so that the pool enclosure is at the same RL as the Lower Ground Floor finished floor level to provide accessible access, and to conceal the sides of the pool structure with a green wall.
Etherington’s architect had made a without prejudice offer to the Council on 9 September 2024 to reduce the height of a clerestory window above the living/dining room from 900mm to 600mm on the condition that the Council approved the four modifications sought in the modification application.
The Council responded on 17 September 2024 saying:
“In response to your client’s proposed amendments to the application, on a ‘without prejudice’ basis:
1. The height of the clerestory window being reduced to 450mm,
2. The pool level be recommended for approval at RL11.00m as originally recommended to the Panel, with suitable privacy protection with the neighbour,
3. The garage modifications will be considered as proposed,
4. The pergola will be assessed on its merits, also advising that submitting a visual impact/view analysis could be in your client’s interests, and
5. The efficacy of a glass privacy screen on the top-level balcony (RL 17.0m) is questionable, this needs to be suitably located on plans and elevations. Glass being a highly reflective material, can have unintended visual impacts. Another material may be more suitable.
In closing I reiterate my advice to your Mr Woods of 9 September, that we will require submission of application amendments before 11 October, to renotify the application and submit a report regarding same to the North Sydney Local Planning Panel’s meeting of 4th December.
We await your submission of amendments to the application. Should none be received the application as it presently stands will be assessed and recommended for determination by the Panel.”
(a) altering the roof line so as to reduce the height of the clerestory window to be 600mm in the manner explained in the without prejudice offer of 9 September 2024; and (b) deleting the 1.6m high solid privacy screen and replacing it with a 1m high glazed balustrade.
Etherington did not, however, apply formally to amend the modification application under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to reduce the height of the clerestory window or change the privacy screen.
The Council, on 4 December 2024, resolved to approve in part the modification application so as to modify the development consent in only one of the ways sought in the modification application, being the awning over the lower level terrace. The Council did not support the three other modifications stated in the modification application of the enclosure of the garage, erection of the operable metal louvre pergola on the upper level paved terrace, or raising of the height of the swimming pool. The Council’s decision to modify the development consent with respect to the awning over the lower level terrace was subject to conditions which amended or added to the existing conditions of the development consent.
The Council replaced the table to Condition A1 of the development consent identifying the plans describing the works approved, with a new table identifying revised plans. The revised plans referred to in the table included the revised plans that Etherington’s architect had submitted on 10 October 2024, including the plans showing the reduction in height of the clerestory window to 600mm. By this means of substituting the revised plans, the Council modified the development consent to reduce the height of the clerestory window.
The Council also amended existing condition, Condition C1, of the development consent to require numerous design changes to be included in the plans approved with the Construction Certificate, including that:
(a) a louvred/slatted privacy screen, a minimum 1.6m high from finished floor level, be affixed to the eastern edge of the balcony to the upper level adjacent to the open plan living room to obscure lines of sight between the balcony and the neighbouring property east of the site, however, the Council agreed that the balustrade on the northern and western sides of the balcony could be finished in clear unframed glass (Condition C1(a)); (b) a fixed privacy screen be affixed to the eastern side of the outdoor kitchen space at the lower level to obscure direct sight lines between the outdoor kitchen space and the neighbouring property east of the site (Condition C1(b)); and (c) a louvred/slatted privacy screen a minimum 1.6m high from finished floor level to be affixed to the eastern edge of the lower terrace to obscure direct lines of sight between the terrace and the neighbouring property east of the site (Condition C1(n)).
Condition C1(a) overrode Condition A1, so as to require the plans showing the deletion of the 1.6m solid privacy screen and replacement with a 1m glazed balustrade (referenced in the table to Condition A1) to be amended to install instead the 1.6m high louvred/slatted privacy screen referred to in condition C1(a).
The Council issued a notice of determination of the modification application on 11 December 2024 incorporating the modifications that were approved and refused by the Council.
Etherington, being dissatisfied with the Council’s decision, appealed on 12 December 2024 to the Court under s 8.9 of the EPA Act. The Court on the hearing of that appeal had the functions and discretions of the Council to determine the modification application under s 4.55(2) of the EPA Act.
In the Statement of Facts and Contentions in Reply, filed in the Court below on 5 May 2025, Etherington asserted that the modifications sought on the appeal were:
“a. Add a new roof over the hard stand parking area to enclose the carport creating an enclosed garage.
b. Add a new operable metal louvre pergola over part of the external living spaces.
c. Add a new fixed metal pergola over part of the external living spaces (in accordance with the approval of the planning panel above for an awning of no more than 900mm measured outward).
d. Replace the 1.6m solid privacy screen with a 1m glazed glass balustrade on the sides of the balcony to level 3 (the glass balustrade has been approved by the planning panel for the northern and western sides but not for the eastern side).
e. Raise the height of the swimming pool by 900mm so that the pool enclosure is at the same RL as Lower Ground Floor FFL to provide accessible access to the pool. The sides of the pool structure are proposed to be concealed with a landscaped ‘green’ wall.”
These modifications, except for the modification in (d), reflected the four modifications sought in the modification application lodged with the Council. The modification in (d) was responsive to the amendment to Condition C1 on which the Council approved in part that modification application.
The Council’s Statement of Facts and Contentions filed in the Court below on 17 March 2025 records that, on 14 February 2025, Etherington was given leave by the Court to amend the modification application. It is not clear in the information before this Court what was the scope of that amendment.
One of the modifications which was not identified in the modification application itself or the parties’ contentions, but which was shown on the plans filed in the Court in support of the modification application, was the reinstatement of the clerestory window to the height approved by the development consent before it was modified by the Council (900mm instead of 600mm). As noted, the Council in approving in part the modification application, substituted as the approved plans, the plans that had been submitted on 10 October 2024 which lowered the height of the clerestory window to 600mm. Etherington sought, by the plans lodged on the appeal, to reinstate the clerestory window at its original height of 900mm.
The Council raised contentions in its Statement of Facts and Contentions as to why the modifications sought in the amended modified application should be refused:
The development to which the consent as proposed to be modified is not substantially the same development as the development for which the consent was originally granted, as required by s 4.55(2)(a) of the EPA Act.
The height of the development as proposed to be modified is excessive and unacceptable and will have adverse impacts on adjoining residential amenity (this contention related to the proposed pergola on the upper level).
The development as proposed to be modified will cause unacceptable view loss and visual impacts, having regard to the introduction of significantly intrusive built environments and the proposed non-compliant side setbacks (this contention also related to the pergola on the upper level as well as to the garage enclosure).
The development as proposed to be modified will cause unacceptable privacy and amenity impacts and excessive visual bulk (this contention related to the proposed garage enclosure and the increase in height of the pool).
The proposed garage enclosure causes an unacceptable increase in ‘site cover’ and ‘unbuilt upon area’.
The modification application should be refused as it is not in the public interest and having regard to the public submissions received in objection to the proposal (this contention related to all of the modifications sought).
“The applicant seeks to make the following changes to the approved development:
- Adding a two-car garage enclosure (over an approved turntable and hardstand parking area) at the street front of the site;
- adding a metal louvred pergola 3.3m above the approved terrace at RL 17.0; 4.45m deep and 9.07m wide; and
- raising the level of the swimming pool coping level, retaining walls and planter beds surrounding the swimming pool by 900mm”: at [1].
“(1) The development is not substantially the same development as the development for which the original consent was granted because the proposed pergola exceeds the height of buildings development standard, the application proposes a considerable increase in building footprint and bulk by the provision of a double garage and the proposal unreasonably increases adverse privacy and amenity impact on the residents of the dwelling located at 56 Cowdroy Avenue.
(2) The height of the proposed pergola is 2.63m above the 8.5m height of buildings development standard and it will have unacceptable adverse impacts on the adjoining residential amenity.
(3) The garage, pergola and raising of the level of the swimming pool coping would result in unacceptable view loss and amenity impacts.
(4) The proposal increases the bulk of the building and causes unacceptable increase in site cover and unbuilt upon area”: at [3].
(a) the development as proposed to be modified is substantially the same development as the development for which consent was originally granted: at [20]; (b) the proposed enclosure of the carport to be a garage was acceptable: at [21]-[24]; (c) the proposed pergola on the upper level terrace was unacceptable, as it unreasonably impacts on views of the bay from the neighbouring property to the west of the site and unreasonably adds to the bulk and scale of the approved development when viewed from the bay: at [25]-[28]; and (d) the proposal to raise the swimming pool by 900mm was unacceptable as it would have a detrimental effect on the amenity of the rear yard of the neighbouring property to the west of the site: at [29]-[31].
Accordingly, the Commissioner dismissed the appeal: at [35]. This left the Council’s determination of the modification application in effect.
Etherington sought, by notice of motion filed on 2 July 2025, for the Commissioner, pursuant to r 36.16 of the Uniform Civil Procedure Rules 2025 (NSW) (UCPR), to set aside the order dismissing the appeal and to substitute an order that the appeal be upheld and the development consent be modified to approve the proposed enclosure of the garage, which the Commissioner had found to be acceptable, and the replacement of the solid privacy screen on the upper level balcony with glazed glass, which the neighbour to the east had consented to.
Etherington argued that the Commissioner appeared to have proceeded on the misunderstanding that the Court “was duty bound to dismiss the whole modification application if it found that any of the modifications were unacceptable”: at [10] of the Commissioner’s second judgment of 2 September 2025, Etherington v North Sydney Council (No 2) [2025] NSWLEC 1627. Etherington argued that the Commissioner had the power to approve the modification which she had found to be acceptable (the enclosure of the garage) and the modification which was not opposed by the Council and consented to by the neighbour of the deletion of the privacy screen on the eastern side of the balcony on the upper level: at [10]. Etherington argued that the orders made did not reflect these findings of the Court. The Court was duty bound by s 22 of the Land and Environment Court Act 1979 (NSW) (Court Act) to give effect to the findings and modify the development consent accordingly: at [10].
The Commissioner, in her second judgment of 2 September 2025, dismissed Etherington’s notice of motion. The Commissioner said that she was not under a misapprehension concerning the power in s 4.55(2) of the EPA Act to determine the modification application. The Commissioner noted that unlike the position with a consent authority determining a development application where, under s 4.16(4) of the EPA Act, there is power to grant development consent to a specified part or aspect of the development for which the consent is sought, there is no equivalent power in s 4.55 of the EPA Act to approve a part or an aspect of the modifications sought in the modification application: at [16]-[19].
The Commissioner noted that Etherington had sought only the modifications of the development consent specified in the modification application that was before her at the hearing. The Commissioner noted that:
“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”: at [20].
The Commissioner held that she was not bound to modify the development consent by one element only of the modification application, being the enclosure of the garage, despite her finding in [33] of the first judgment that the enclosure of the garage would be acceptable: at [22].
Finally, the Commissioner did not accept Etherington’s submission that the Court had power to set aside the orders under UCPR r 36.16 and substitute orders modifying the development consent to allow the enclosure of the garage and the deletion of the privacy screen: at [23].
“(1) The Commissioner erred on a question of law because it was legally unreasonable to dismiss the appeal in light of the facts that North Sydney Council (the Council) and the affected neighbour consented to the proposed modifications to the privacy screens, the Council did not object to the clerestory window being returned to the originally approved height, and the Commissioner’s finding that the proposed two-car garage was acceptable at Judgment [33].
(2) The Commissioner erred on a question of law by failing to determine the principal contested issues regarding the proposed clerestory window and the proposed privacy screening.
(3) The Commissioner erred on a question of law by failing to provide reasons or alternatively failing to provide adequate reasons for finding that the raising of the level of the swimming pool and surrounding structures are unreasonable at Judgment [34] and ordering that the appeal be dismissed rather than upheld subject to modified conditions of consent at Judgment [35]”: see [4] of the primary judge’s first judgment of 19 December 2025, Etherington v North Sydney Council [2025] NSWLEC 141.
The primary judge dismissed the first two grounds, but upheld the third ground: at [37], [38], [46], [69], [71], [73].
As to the first ground, the primary judge noted in passing that there was no dispute between the parties “that the Commissioner had the power to approve a modification application in part”: at [13]. Whether or not that was the parties’ position, it was not the Commissioner’s finding. The Commissioner in her second judgment noted that there was no express power in s 4.55 of the EPA Act equivalent to s 4.16(4) to approve a modification in part: [18], [19]. This was a reason given by the Commissioner for not setting aside her decision to refuse the modification application and substitute a decision to approve in part the modification application with respect to the enclosure of the garage and the change in the privacy screen on the eastern side of the upper level balcony. The primary judge did not address this reason for refusal of the modification application.
The primary judge instead dealt with Etherington’s argument that the Commissioner was duty-bound by s 22 of the Court Act to have exercised the power under s 4.55(2) of the EPA Act to approve the proposed modification which she had found to be acceptable, being the garage enclosure, and the proposed modifications which the Council did not oppose, being the proposed modifications to the privacy screen and the height of the clerestory window: at [14].
The primary judge rejected Etherington’s argument for two reasons. The first was the same reason that the Commissioner had given in her second judgment for not setting aside her first decision. Etherington had not raised an issue or put a submission that the Commissioner should approve in part the modification application: at [18]-[22]. The second reason was that s 22 of the Court Act did not oblige the Commissioner to approve those modifications that the Commissioner found were acceptable or that were not opposed by the Council: at [28]-[29], [37]-[38].
As to the second ground, the primary judge held that neither of the two matters identified in ground 2 (the privacy screen and the clerestory window) were contested matters before the Commissioner. Although the Commissioner was informed that the Council did not oppose the amendment to the clerestory window and the neighbour to the east of the site had agreed to the change in the privacy screen, the Commissioner was not asked to approve these modifications by Etherington. They were not part of the three contested issues identified by the Commissioner (set out in [9] of the primary judge’s first judgment). In these circumstances, consistent with the primary judge’s finding on ground 1, no duty to approve these modifications arose on the Commissioner’s part: at [45] of the primary judge’s first judgment.
As to the third ground, the primary judge identified two aspects to the ground. The first was that the Commissioner did not give adequate reasons in relation to her decision that the raising of the level of the swimming pool was unacceptable. The second was that the Commissioner did not give adequate reasons as to why she dismissed the appeal when she had found that some modifications were either acceptable or agreed: at [47].
“The Appellants are not able on the remitter to invite the Commissioner to uphold the appeal and approve the modifications agreed by the parties which were not in contest before the Commissioner. Nor can they seek approval for the garage alone being a partial approval of their modification application. To do so would be contrary to my findings on Grounds 1 and 2 and inconsistent with how the Appellants conducted the Class 1 appeal”: at [8].
“(3) The proceedings are remitted to Commissioner O’Neill to be determined according to law, the reasons for judgment in Etherington v North Sydney Council [2025] NSWLEC 141 and this judgment particularly at [8]”: at [13].
“Grounds 1 and 2, which essentially overlapped to a substantial degree, raised entirely different arguments to Ground 3. Ground 3 was discrete. Most of the s 56A appeal hearing was spent considering Grounds 1 and 2”: at [12].
(a) dismiss grounds 1 and 2 of the appeal; (b) not make an exclusionary remitter order; and (c) order the Council to pay only one third of Etherington’s costs: see Amended Summons Seeking Leave to Appeal filed on 12 May 2026.
I would grant leave to appeal against the primary judge’s decision to dismiss grounds 1 and 2 of the appeal, but would dismiss the appeal. Etherington’s appeal against the primary judge’s dismissal of grounds 1 and 2 of the appeal raises issues of construction of the powers under s 4.55(2) of the EPA Act and s 22 of the Court Act that have not been addressed, but would benefit from being addressed, at an appellate level.
I would also grant leave to appeal against the primary judge’s decision to order that the matter be remitted to the Commissioner on the terms stated in the order. The terms of the remitter order are outside the power of remitter in s 56A(2) of the Court Act and would result in the remitter being inutile.
I would not grant leave to appeal against the primary judge’s cost order. No error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 has been identified justifying the grant of leave to appeal.
The first two grounds raise the issue of whether the Commissioner was duty-bound to approve the modification that the Commissioner had found to be acceptable, the garage enclosure, and the modifications that the Council did not oppose, being the reinstatement of the clerestory window at its originally approved height and the replacement of the 1.6m high louvre privacy screen with a 1m clear glass balustrade on the eastern side of the upper level balcony. Etherington argued that this duty flowed from s 22 of the Court Act or the notion of legal unreasonableness.
Etherington’s argument on grounds 1 and 2 assumed that the Commissioner had power under s 4.55(2) of the EPA Act to approve some but not all of the modifications sought in the amended modification application before the Court. That assumption was not grounded in the terms of s 4.55 of the EPA Act. As the Commissioner had observed in her second judgment, there is no express power in s 4.55 equivalent to s 4.16(4) of the EPA Act to approve one or some of the modifications, but not all of the modifications, sought in a modification application. It might be that such a power is implied, but that has not been settled by authority: Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 104 at [25]-[27].
Nevertheless, the parties in the proceedings before the Commissioner and the appeal before the primary judge proceeded on that assumption. On the application for leave to appeal in this Court, both parties submitted that this Court should determine the application for leave to appeal, and any appeal, on this common assumption. As it is possible to determine both the application for leave to appeal and any appeal on this common assumption, I will proceed to do so on this agreed basis, leaving for another day the question of whether there is power to approve one or some of the modifications, sought in an application to modify a development consent, instead of either approving or refusing all of the modifications sought in the modification application.
Starting with s 22 of the Court Act, Etherington argued that s 22 imposes a duty on the Court, when exercising the jurisdiction of the Court (“in every matter before the Court”), to make the decisions and to grant the orders, in the exercise of the powers within jurisdiction, which will give effect to the findings of the Court in the proceedings before it (grant “all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party”). The proceeding before the Commissioner was an appeal under s 8.9 of the EPA Act against the decision of the Council under s 4.55(2) of the EPA Act to approve only in part Etherington’s modification application.
The Commissioner had found that the pre-condition to the exercise of the power in s 4.55(2)(a), that the development as proposed to be modified was the same as the development as originally approved, was satisfied, so as to engage the discretionary power to approve the modification application. The Commissioner found that one of the modifications sought in the modification application, the garage enclosure, was acceptable. The Commissioner was aware that two other modifications sought in the modification application, the replacement of the 1.6m high louvre privacy screen on the eastern side of the upper level balcony with a 1m high clear glass balustrade and the reinstatement of the clerestory window at its originally approved height, were not opposed by the Council. In these circumstances, Etherington argued, the Commissioner was duty-bound by s 22 of the Court Act to exercise the power under s 4.55(2) of the EPA Act to approve those modifications which were acceptable or agreed.
The primary judge upheld only one of Etherington’s grounds of appeal against the Commissioner’s decision. This was the failure to give reasons, including a lack of analysis of the expert evidence, for the Commissioner’s decision to refuse the modification of raising the swimming pool: see [65], [67], [69]-[71] of the primary judge’s first judgment.
The primary judge rejected Etherington’s argument that there should be an exclusionary remitter to a Commissioner other than the Commissioner. The primary judge considered that “the sole ground of a failure to cite adequate reasons does not justify an exclusionary remitter order as I do not consider concerns about an apprehension of bias are justified by my finding”: at [75] of the primary judge’s first judgment.
Etherington sought to challenge that decision in ground 3 of the appeal to this Court. Etherington’s initial focus was on the primary judge’s misunderstanding or misapplication of the principles for making or not making an exclusionary remitter. Etherington’s argument in this regard did not identify legal error sufficient to justify leave to appeal being granted. However, on the hearing of the application for leave to appeal in this Court, Etherington added a further challenge, in the Further Amended Notice of Appeal filed at the hearing of the appeal in this Court, to the terms of the remitter order that the primary judge made. The Court granted Etherington leave to amend in this respect.
In her second judgment, the primary judge framed the remitter order in these terms:
“(3) The proceedings are remitted to Commissioner O’Neill to be determined according to law, the reasons for judgment in Etherington v North Sydney Council [2025] NSWLEC 141 and this judgment particularly at [8].”: at [13].
“The key matter for the remitter to the Commissioner in this case is that the remitter must be determined in accordance with Etherington s 56 Appeal. This means that the Appellants will be required to pursue their appeal on the same basis as before the Commissioner in Etherington Class 1 as the result of me dismissing Grounds 1 and 2. The application for modification must remain on the basis that approval is sought for the whole modification application. The Appellants’ submissions on the scope of the remitter order did not conform with the findings in Etherington s 56A Appeal. The Appellants again sought to rely on s 22 of the Court Act in a manner that is contrary to my findings on Grounds 1 and 2. The Appellants are not able on the remitter to invite the Commissioner to uphold the appeal and approve the modifications agreed by the parties which were not in contest before the Commissioner. Nor can they seek approval for the garage alone being a partial approval of their modification application. To do so would be contrary to my findings on Grounds 1 and 2 and inconsistent with how the Appellants conducted the Class 1 appeal.”
The primary judge’s remitter order constrains how the Commissioner may determine the appeal against the Council’s refusal of Etherington’s modification application by requiring the Commissioner to exercise the power in s 4.55(2) of the EPA Act in accordance with what the primary judge directed in paragraph 8 of the second judgment. Those directions are outside power, not only the power in s 56A(2) of the Court Act but also the power in s 4.55(2) of the EPA Act.
Assuming the Commissioner exercising the consent authority’s functions has power under s 4.55(2) of the EPA Act to approve one or some modifications and refuse other modifications sought in the modification application, the Commissioner on the remitter must be free to exercise that power in whatever way the Commissioner thinks appropriate in the circumstances. The primary judge had no power under s 56A of the Court Act to dictate to the Commissioner any outcome of the exercise of the power in s 4.55(2) of the EPA Act. Yet this is what the primary judge’s remitter order purports to do. The primary judge has directed that the Commissioner cannot “approve the modifications agreed by the parties which were not in contest before the Commissioner” or approve “the garage alone being a partial approval of their modification application”: at [8] of the primary judge’s second judgment.
The power in s 56A(2) of the Court Act allowed the primary judge to “remit the matter to the Commissioner … for determination by the Commissioner … in accordance with the decision of the Court” and to “make such other order in relation to the appeal as seems fit”. The application of this power, however, depends on the nature of the matter involved. Here, the matter is an appeal under s 8.9 of the EPA Act against the Council’s refusal under s 4.55(2) of the EPA Act of the application to modify the development consent in the ways sought in the amended modification application. The Commissioner, in hearing and disposing of that appeal, re-exercises the consent authority’s power under s 4.55(2) of the EPA Act to determine that modification application. The exercise of the power under s 4.55(2) of the EPA Act is indivisible – there can only be one exercise of the power by the person or body in whom the power is reposed and that one exercise of the power is to approve, with or without conditions, or refuse the modifications sought in the modification application.
That indivisible power under s 4.55(2) of the EPA Act was reposed in the Commissioner hearing the appeal under s 8.9 of the EPA Act, both at first instance and on remitter. The primary judge hearing and disposing of an appeal under s 56A of the Court Act against the Commissioner’s exercise of the power under s 4.55(2) of the EPA Act had no power herself to exercise the power under s 4.55(2) of the EPA Act by directing the Commissioner not to approve some of the modifications sought in the modification application. The primary judge was not herself determining the appeal under s 8.9 of the EPA Act and as a consequence did not have the function of the consent authority under s 4.55(2) of the EPA Act to determine the modification application.
Etherington has succeeded in being granted leave to appeal on grounds 1 and 2, but not on the appeal on those grounds, and in being granted leave to appeal on ground 3 and on the appeal on that ground but only in respect of the terms in which the primary judge framed the remitter order. Etherington has not succeeded in being granted leave to appeal on ground 4. Viewed collectively, Etherington’s success on the application for leave to appeal and the appeal is very limited. In these circumstances, it is fair and reasonable that Etherington pay the Council’s costs of the proceedings in this Court.
For the reasons given above, I would make the following orders:
Grant leave to appeal on grounds 1 and 2, but dismiss the appeal on those grounds.
Grant leave to appeal on ground 3, and uphold the appeal on that ground.
Refuse leave to appeal on ground 4.
Set aside order 3 of Pain J made on 23 March 2026.
Instead of order 3, remit the matter in proceedings no 2024/459523 to the Land and Environment Court to be determined according to law.
Order the applicants to pay the respondent’s costs of the proceedings in this Court.
If any party wishes to be heard in relation to the order as to costs, application may be made within the period specified in UCPR r 36.16.
**********
Etherington
North Sydney Council
[1936] HCA 40
(1936) 55 CLR 499
(2019) 236 LGERA 35
(2013) 249 CLR 332
(2010) 240 CLR 611
(1990) 20 NSWLR 573
(2007) 71 NSWLR 230
The Court granted leave on grounds 1 and 2 but dismissed the appeal on them; granted leave and upheld ground 3 concerning the remitter restrictions; refused leave on ground 4; set aside order 3 made on 23 March 2026 and remitted the matter to the Land and Environment Court to be determined according to law; and ordered the applicants to pay the respondent’s costs in the Court of Appeal, subject to the stated UCPR r 36.16 process: [97].
The submissions based on s 22 were advanced without regard to the context or history of the provision, and were instead based on a literalistic approach to its text.
As Gleeson CJ observed in National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 579, s 22 is a provision derived from s 24(7) of the Judicature Act 1873 (UK), with a counterpart in s 63 of the Supreme Court Act 1970 (NSW).
In order to see the closeness of the language, it is worth reproducing s 24(7) of the Judicature Act 1873:
Further, s 22 is a provision which contains its own statement of purpose. That purpose is to resolve matters in controversy between the parties and to prevent multiplicity of proceedings. That stated purpose reflected the former need for separate proceedings to be commenced in separate courts (most obviously, separate common law and equitable proceedings), and s 33 of the Interpretation Act 1987 (NSW) obliges this Court to prefer a construction which will promote that purpose. An attempt was made by the Etheringtons to rely on that purpose. Why, so it was said, should they be forced to make another application to Council in light of the Council’s stated position of non-opposition to particular aspects of the modification sought? But why should a Judicature provision, which was part of the suite of provisions to prevent the need for fresh proceedings to be commenced in a separate court, have anything to do with the Etheringtons’ entitlement under the Environmental Planning and Assessment Act 1979 to make further application to Council for a modification of their development consent? Section 22 is about multiple proceedings in courts, and by no means speaks to multiple applications to local councils for development consent or the modification of development consent.
For those reasons, as well as those given by Preston CJ of LEC, I agree with the orders proposed by his Honour.
FREE JA: I have had the advantage in reading in draft the reasons of Leeming JA and Preston CJ of LEC. I agree with the reasons of Preston CJ of LEC and with his Honour’s proposed orders. I agree with the additional reasons of Leeming JA.
PRESTON CJ of LEC: Mr and Mrs Etherington (who I shall refer to together simply as ‘Etherington’) seek leave to appeal against the decision of Pain J of the Land and Environment Court of New South Wales (the primary judge). The primary judge upheld one ground, but dismissed two other grounds, of appeal against a decision of Commissioner O’Neill of that Court (the Commissioner). The primary judge remitted the matter to the Commissioner to be determined according to law and the primary judge’s reasons. The primary judge made a partial costs order in favour of Etherington. Etherington sought leave to appeal against the primary judge’s decision dismissing two grounds of appeal, remitting the matter for determination by the Commissioner instead of a different Commissioner, and ordering that North Sydney Council (the Council) pay only one third of Etherington’s costs of the appeal.
There was not, but needed to be, a revised BASIX certificate.
Etherington, in the Statement of Facts and Contentions in Reply, joined issue on each of these contentions. Etherington did not address any modification sought in the amended modification application not challenged in the contentions and did not raise any other contentions in reply.
On 3 June 2025, the neighbours of the neighbouring property to the east of the site gave their written consent to the deletion of the 1.6m high privacy screen to the eastern side of the top floor balcony, subject to inclusion of some other conditions.
The Commissioner heard the appeal on 12 and 13 June 2025. At the commencement of the hearing, after the conciliation conference had been terminated, Etherington sought and was granted leave to rely on amended plans. These plans further amended what was proposed for the modifications sought in the amended modification application. These amendments included moving the proposed garage structure away from the side boundary and the street, and replacing the 1.6m louvred privacy screen with a 1m clear glass balustrade. These amendments were proposed to implement agreements reached with neighbours to address their concerns.
In her first judgment on 19 June 2025, Etherington v North Sydney Council [2025] NSWLEC 1444, the Commissioner recorded the modifications sought to be threefold:
The primary judge rejected the second aspect of the third ground for the same reasons that she had rejected the first and second grounds of appeal. The primary judge, however, upheld the first aspect of the third ground. The key reason was the failure of the Commissioner to identify and analyse the parties’ experts’ evidence in relation to the proposed modification to raise the height of the swimming pool: at [65]-[71].
Having upheld only the first aspect of the third ground of appeal, the primary judge did not agree with Etherington that an exclusionary remitter order was justified. The matter could be remitted to the Commissioner to give reasons for her decision not to approve the modification to raise the height of the swimming pool: at [75]. The primary judge deferred, however, finalising the terms of the remitter to provide the parties an opportunity to consider and make submissions on the remitter order. The primary judge also deferred determining the costs order that should be made.
On 23 March 2026, the primary judge gave her second judgment on the terms of the remitter order and costs order: Etherington v North Sydney Council (No 2) [2026] NSWLEC 27.
As to the remitter order, the primary judge did not limit the remitter order to the proposed raising of the level of the swimming pool and surrounding areas only. The primary judge accepted that Etherington would be able to adduce evidence again in relation to the pergola and the two-car garage on any remitter: at [9]. However, the primary judge directed that on the remitter, “[t]he application for modification must remain on the basis that approval is sought for the whole modification application”: at [8]. The primary judge held that:
I reject this argument. Section 22 does not confer jurisdiction on the Court. Instead, where the Court has jurisdiction under the Court Act, s 22 confers a power to grant relief in proceedings brought within jurisdiction. The relief that can be granted must itself be relief that the Court has power to grant in the proceedings that are within jurisdiction. Section 22 provides that, where there is jurisdiction, “it is to be fully exercised to secure the object identified in the section”: National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 579.
Here, the proceeding brought within jurisdiction was an appeal under s 8.9 of the EPA Act against the decision of the Council to approve only in part the application to modify the development consent. That appeal is allocated to Class 1 of the Court’s jurisdiction: s 17 of the Court Act. The appeal is by nature a merits review of the Council’s decision. The Court metaphorically stands in the shoes of the Council whose decision is under review. The Court re-exercises the statutory power under s 4.55(2) of the EPA Act to determine the application to modify the development consent: see the explanation of the Court’s merits review function under the EPA Act in Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [149]-[151].
The power under s 4.55(2) of the EPA Act to approve or refuse a modification application is discretionary. True, the discretionary power is subject to the constraints specified in s 4.55 of the EPA Act. These include the requirements in s 4.55(2) that must be satisfied before the power can be exercised and the requirement in s 4.55(3) to consider relevant matters in s 4.15(1) that must be satisfied in the exercise of the power. But upon satisfying such statutory requirements, the consent authority (or the Court on appeal) has a discretion as to how to exercise the power under s 4.55(2). This is the “decisional freedom” to which reference was made in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28]. Certainly, there is no duty on the consent authority (or the Court on appeal) to determine the modification application in any particular way, whether by approval or refusal or, if approval, by approval with or without conditions. The only check on the decisional freedom, apart from the statutory constraints earlier referred to, is the common law requirement that the decision not be beyond the bounds of legal unreasonableness.
It is in this statutory context that the application of s 22 of the Court Act needs to be considered. Does s 22 impose a duty on the Court when exercising, in an appeal under s 8.9 of the EPA Act, the discretionary power in s 4.55(2) of the EPA Act to determine a modification application? The answer to this question is clearly “no”. Section 22 has no application to the Court’s exercise of the power in s 4.55(2) of the EPA Act.
The outcome of an exercise of the power under s 4.55(2) of the EPA Act to determine an application to modify a development consent cannot properly be described as falling within the term “remedies” as that term is used in s 22 of the Court Act. The notion of a remedy in law is of an order of the court that enforces a right that has been infringed or redresses a wrong that has been committed. That is the sense in which the term “remedies” is used in s 22, as the following phrase in s 22 makes plain: the remedies to which any of the parties appears to be entitled must be “in respect of a legal or equitable claim”. Hence, there must first be a legal or equitable claim that some right has been infringed or some wrong has been committed before the Court can have jurisdiction to grant a remedy to enforce such a right or redress such a wrong.
Neither an application under s 4.55(2) of the EPA Act to modify a development consent nor an appeal under s 8.9 of the EPA Act against a decision of a consent authority determining a modification application under s 4.55(2) of the EPA Act, answers the description of being “a legal or equitable claim”. Whilst an applicant or any other person entitled to act on a development consent is entitled to make an application under s 4.55(2) of the EPA Act to modify the development consent, and the consent authority is under a duty to exercise the power in s 4.55(2) to determine such an application, the applicant or other person does not have any entitlement to any particular outcome of the consent authority’s exercise of the power to determine the application, including that the application be approved, with or without conditions. That is to say, neither the application to modify the development consent nor the appeal against the consent authority’s determination of the application is “a legal or equitable claim”.
As there is neither a legal or equitable claim before the Court in an appeal under s 8.9 of the EPA Act nor any remedies that can be granted in respect of a legal or equitable claim, s 22 of the Court Act is not engaged so as to oblige the Court to exercise the power in s 4.55(2) of the EPA Act in any particular way, including by approving one or some of the modifications, but not all of the modifications, sought in a modification application.
Turning to the notion of legal unreasonableness, Etherington submitted that it was legally unreasonable for the Commissioner not to exercise the power in s 4.55(2) of the EPA Act to approve the acceptable and agreed modifications, unless there were rational reasons for not doing so. The Commissioner gave no reasons at all for not approving the modifications which she found acceptable (the garage enclosure) and the Council did not oppose (the changes in the privacy screen and the clerestory window height). Hence, Etherington submitted, it was legally unreasonable for the Commissioner not to approve the acceptable and agreed modifications.
I reject this legal unreasonableness argument. As I have earlier noted, the power to determine an application to modify a development consent is discretionary. Assuming for the purpose of determining Etherington’s argument of legal unreasonableness that there is power to approve one or some but not all of the modifications sought in the modification application, the Commissioner had a discretion whether to approve one or some of the modifications but to refuse the remaining modifications or instead to refuse all of the modifications sought in the modification application. Once it is recognised that the Commissioner was not obliged to approve those modifications that the Commissioner found to be acceptable or the Council did not oppose, the Commissioner could decide whether that was the preferable decision or instead whether it was preferable to refuse all of the modifications in circumstances where the Commissioner had found that some of the modifications sought were sufficiently unacceptable as to warrant being refused.
The modifications that the Commissioner considered should be refused were the modifications with more significant impacts, being the pergola over the upper level terrace that would obstruct views and the raising of the swimming pool by 900mm that would adversely affect public and private amenity. Once the Commissioner decided to refuse these more impactful modifications, it was reasonably open to the Commissioner to decide to refuse the modification application as a whole, rather than partially to approve only the less impactful modifications and to refuse the remaining modifications. The fact that other minds might reasonably have decided to approve in part some of the modifications does not make the Commissioner’s decision not to do so legally unreasonable. A decision on which reasonable minds may differ is not legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li at [28].
For these reasons, Etherington has not established that the Commissioner was under a duty to approve the modifications that the Commissioner found to be acceptable or the Council did not oppose, arising from either s 22 of the Court Act or the notion of legal unreasonableness. This is sufficient to dispose of grounds 1 and 2. Insofar as ground 2 sought to add a related argument that the Commissioner failed constructively to exercise jurisdiction to decide whether to approve the acceptable or not opposed modifications, this argument should also be rejected for the same reason. If there was no duty to approve the acceptable or not opposed modifications, there could be no constructive failure to exercise jurisdiction to approve those modifications.
There are restricted circumstances where a judge of the Land and Environment Court in disposing of an appeal under s 56A(2) of the Court Act, or this Court in disposing of an appeal under s 57(2) of the Court Act, can dispose of the matter that is the subject of the appeal. Typically, this is where no further findings of fact are required in order for the appellate court to dispose of the matter: see, for example, Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300 at [89], [92]-[93], [102]-[104], [108]-[110].
In the appeal before the primary judge, there were evidently further facts to be found. That was the gravamen of the appeal ground of failure to give reasons that the primary judge upheld. The primary judge remitted the matter to the Commissioner to analyse the expert evidence concerning the modification of raising the swimming pool and to make further findings of fact based on that analysis of the expert evidence. Only when the Commissioner made those findings of fact could the Commissioner decide how to exercise the power under s 4.55(2) of the EPA Act to approve or refuse that modification as well as the other modifications sought in the modification application.
In these circumstances, the primary judge did not have power to dispose of the matter herself under s 56A(2) of the Court Act, and the primary judge did not purport to do so. Equally, the primary judge did not have power to direct the Commissioner as to how the Commissioner on the remitter of the matter must exercise the power under s 4.55(2) of the EPA Act to determine the modification application, as the primary judge purported to do.
Accordingly, leave to appeal should be granted, and the appeal upheld, on this ground of challenge to the primary judge’s remitter order.