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[2026] NSWLEC 27
Land and Environment Court (NSW)
2026-03-23
Pain J
Original judgment source is linked above.
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 (No 2) [2026] NSWLEC 27
Hearing dates: Written submissions 30 January 2026
19 February 2026
Date of orders: 23 March 2026
Decision date: 23 March 2026
Jurisdiction: Class 1
Before: Pain J
Decision: See [13]
Catchwords: PROCEDURE – making of final orders in s 56A appeal – scope of remitter order – partial award of costs order
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98
Land and Environment Court Act 1979 (NSW) s 22
Suitors' Fund Act 1951 (NSW) s 6(1AA)
Cases Cited: Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd (No 2) [2025] NSWLEC 86
Etherington v North Sydney Council [2025] NSWLEC 141
Etherington v North Sydney Council [2025] NSWLEC 1444
Category: Consequential orders
Parties: Renata Etherington (First Appellant)
Paul Etherington (Second Appellant)
North Sydney Council (Respondent)
Representation: Counsel:
P Tomasetti SC with J Li (Appellants)
T To SC (Respondent)
Solicitors:
Etheringtons Solicitors (Appellants)
Marsdens Law Group (Respondent)
File Number(s): 2025/272788
I delivered judgment in the s 56A appeal commenced by the Appellants in [2025] NSWLEC 141 ( . The Class 1 appeal the subject of the s 56A appeal was the refusal of a modification of development consent in relation to a house in Cammeray. I dismissed two of the three grounds of appeal (Grounds 1 and 2) and upheld part of one ground of appeal (Ground 3). Ground 3 concerned the failure of the Commissioner to provide adequate reasons in light of the expert evidence adduced in relation to alterations to the level of a swimming pool surround; at [71].
The matters in issue before the Commissioner in Etherington v North Sydney Council [2025] NSWLEC 1444 (Etherington Class 1*)* were the merits of a proposed two-car garage, the form of an upper-level pergola and raising of the level of the swimming pool surround. The Commissioner found the proposed two-car garage was acceptable. The other two matters were found not to be acceptable on their merits. The Commissioner dismissed the appeal. Two matters of privacy screens and a change in height of a clerestory window were agreed by the parties. These matters were not in issue before the Commissioner.
Grounds of appeal 1 and 2 which were closely related were dismissed on two main bases. Firstly I found the Appellants did not identify to the Commissioner that a partial approval of the modification application was sought by them, consequently there was no error by the Commissioner in not granting partial consent for the modification sought. Secondly I held that s 22 of the Land and Environment Court Act 1979 (NSW) (Court Act) did not operate in the manner contended for by the Appellants of imposing a duty on the Commissioner to determine every issue between the parties including matters not in contest before the Commissioner. No basis existed for a finding of legal unreasonableness.
At [73] in Etherington s 56A A**ppeal I did not accept the Council’s submission that remitter was unnecessary and stated that the matter ought to be remitted to the Commissioner for a rehearing in accordance with that judgment. It was necessary to provide the parties the opportunity to make further submissions on the scope of any remitter to the Commissioner and on how costs of the appeal should be dealt with. Having received the further written submissions of both parties on these two matters I am now able to finalise orders in the s 56A appeal I have determined.
The Appellants submitted that given the ground of appeal upheld was the failure to give reasons, the usual remitter order would be unconditional citing various cases where this approach has been taken. Support for this approach was stated to be that the Appellants were entitled to invite the Commissioner to uphold the appeal, approve the agreed modifications which were not before the Commissioner as contested issues and seek approval of the garage. The Council is said not to be prejudiced by such an approach.
The Council submitted that a limited remitter order ought to be made reflecting the reasoning in the appeal on Ground 3 as otherwise the further appeal hearing would be conducted contrary to the findings in the s 56A appeal. The alteration to the swimming pool surround was the sole matter in relation to which a finding of inadequate reasoning had been made and any remitter order should be limited to the swimming pool only. This finding was discrete from Grounds 1 and 2, which were not upheld. The Appellant should not be permitted to have a rehearing in a manner inconsistent with the dismissal of Grounds 1 and 2.
I agree with the Appellants that an unconditional remitter order, meaning in this context not limited to a particular issue, is generally made where there has been a failure to provide inadequate reasons. As the Council submitted the finding in relation to inadequate reasons was on a discrete limited matter. The terms of a remitter order is ultimately a matter of discretion with each case determined in light of its circumstances.
The key matter for the remitter to the Commissioner in this case is that the remitter must be determined in accordance with Etherington s 56A 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 A**ppeal. 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.
I will not limit the remitter order to the proposed raising of the level of the swimming pool and surrounding areas only. Such an order would result in lack of utility given that the Appellants’ case in the Class 1 appeal can only be pursued on the basis that approval of the whole modification application is sought. In addition to the swimming pool surrounds, the Appellants will be able to choose to adduce evidence again in relation to the pergola and, to the extent considered necessary, the two-car garage on any remitter.
The Court’s power to award costs in a s 56A appeal is in s 98 of the Civil Procedure Act 2005 (NSW). The Appellants submitted that as the successful party they should have all their costs paid by the Council. They submitted this was the usual order made in s 56A appeal proceedings relying on Canterbury-Bankstown Council v Hampton**s Property Services Pty Ltd (No 2) [2025] NSWLEC 86. They also submitted that the three grounds of appeal were linked. The Council submitted that the costs order ought to be apportioned so that the Council ought to be required to pay one-third of the Appellants’ costs.
The exercise of the costs discretion under s 98 is wide provided that the discretion is exercised judicially. The starting point for costs is that the successful party in an appeal will have its costs paid as the Appellants submitted and the Council accepted. The award of costs can be tailored if appropriate in a particular case so that a partial costs order can be made if justified in the circumstances.
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. In these circumstances a partial award of costs is appropriate as the Council was successful on two of the three grounds in the s 56A hearing. I will order the Council to pay one third of the Appellants’ costs of Etherington s 56A A**ppeal.
The Court orders:
Appeal proceedings no 2025/272788 upheld.
The orders in proceedings no 2024/459523 are set aside.
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].
The Respondent is to pay one third of the Appellants’ costs of Appeal proceedings no 2025/272788.
The Respondent is to have a certificate under s 6(1AA) of the Suitors' Fund Act 1951 (NSW) with respect to the costs of the appeal referred to in Order 4, if otherwise qualified.
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Etherington
North Sydney Council