R & D Beattie Properties Pty Ltd v Inner West Council (No 2)

Category: Principal judgment

Parties: R & D Beattie Properties Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
N Sheerazi (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s): 2024/375193

Publication restriction: Nil

Judgment

1. COMMISSIONER: On 10 March 2026 I handed down my reasons for judgment in R & D Beattie Properties Pty Ltd v Inner West Council [2026] NSWLEC 1115*,* and in [92] gave a direction to the parties to amend the draft Conditions of Consent in proposed Annexures A and B within fourteen days to insert a deferred condition of consent (Judgment No 1).

2. In these proceedings Applicant sought approval for Modification Application MOD/2024/2063 (MA) previously refused by Inner West Council’s (Council) Inner West Planning Panel (IWPP). The MA was lodged with Council relying upon s 4.56(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The MA sought to modify development application consent D/2018/243 (Original DA) which granted consent to site consolidation, alterations and additions to the existing warehouse buildings at the site, and change of use to a multi-dwelling housing development containing three dwellings and two car spaces at 77 Beattie Street Balmain being the whole of the land in Lots 24 and 25 in Deposited Plan 2821 (Site).

4. On 8 August 2025 the Applicant lodged a Building Information Certificate being BIC 2025/0136 (BIC) relating to the Site for works carried out otherwise than in accordance with the Original DA. The BIC remains to be issued by Council.

5. The works identified in the BIC are marked in orange on the MA plans (Ex B and Ex H Tab 2 in particular Plan A04 Terrace 1 First Floor Plan, Plan A05 Terrace 2/3 Ground Floor Plan, Plan A06 Terrace 2/3 First Floor Plan). After the onsite view, I raised an issue for the parties to address in relation to the structural wall being the spine of the building between residences 2 and 3 which formed part of the BIC.

6. In relation to the issue of the BIC, Counsel for the Council submitted that “It is not merely the questions of structural stability or fire safety of the party wall. There are a myriad of other issues that are typically assessed by a building surveyor on an application for a BIC including compliance with the Australian Standards, waterproofing, acoustic separation, and (in this case) the fire safety of the wall separating Terrace 1 from Terraces 2 and 3.” [86]

7. I determined in [90] that I would uphold the appeal and approve the MA subject to Annexures A and B being amended in accordance with the Deferred Condition of Consent in [92]. Judgment No 1 was published on 10 March 2026.

8. In the afternoon on 24 March 2026 the Applicant filed a Notice of Motion (Motion) seeking orders that the Court, pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), vary paragraphs [89]-[90] of Judgment No 1 in accordance with the terms of par [1] (a) and (b) and [2] of the said Motion.

9. Council consents to short notice of service of the Motion but neither consents nor opposes the Motion.

10. I note that the imposition of a Deferred Condition of Consent and imposed by [92] in Judgment No 1, is unenforceable and voids the approval of the MA, as determined by Duggan J in Peake Pearce Pty Ltd v George River Council [2023] NSWLEC 89 at [22]-[28]. The Motion filed by the Applicant intended to resolve the issue of the Deferred Condition of Consent so that the MA as approved would be operable.

11. The Motion was supported by the affidavit of Tomas Bush affirmed on 24 March 2026 relying upon r 36.16(3B) of the UCPR and contained two annexures:

12. Annexure A: email from Tom Bush to Noreen Sheerazi of Council dated 16 March 2026 at 6:17PM.

13. Annexure B: email from Noreen Sheerazi of Council to Tom Bush dated 17 March 2026 at 11:22AM which stated inter alia:

“1. The question of whether the deferred commencement condition imposed by the Court is valid, is not one that is captured by r 36.16(3B) of the UCPR in the present circumstances.”

12. At the hearing on 25 March 2025 Counsel for the Applicant read Mr Bush’s affidavit affirmed 24 March 2026.

13. In its Motion the Applicant relies upon r 36.16(3A) of the UCPR.

14. Rule 36.16 of the UCPR provides:

36.16 Further power to set aside or vary judgment or order

(cf SCR Part 40, rule 9)

(1) ……

(2) The court may set aside or vary a judgment or order after it has been entered if—

……

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it—

……

(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.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

15. The Court has no power to extend time to file an application under subr (3A) or 3(b) of r 36.16. This was confirmed by Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133.

16. However, the Court has power to set aside judgment or order pursuant to r 36.15 of the UCPR:

36.15 General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

17. During the hearing the parties agreed that the part of Judgment No 1 relating to the Deferred Condition of Consent can be set aside in accordance with r 36.15 (2) of the UCPR.

18. As the parties have agreed by consent to Judgment No 1 being amended, there is no requirement for me to hear and determine the Motion.

19. I shall set aside the reasons for judgment in relation to the Deferred Condition of Consent in [89] - [90], and the Direction in [92] of Judgment No 1.

20. The parties agreed to the proposed condition 5B is as follows:

“5B. Building information certificate

Prior to the issue of any additional or modified construction certificate associated with the development as amended under MOD/2024/0263, a building information certificate under s 6.24 of the Environmental Planning and Assessment Act 1979 must be obtained in relation to the structural elements of the existing building which have been erected otherwise than in accordance with this consent.”

21. For the reasons set out in Judgment No 1, I shall approve the MA, subject to Annexure A and Annexure B.

22. I uphold the appeal and approve the MA in accordance with s 4.56(1)(a) of the EPA Act and s 39(1) and (2) of the Land and Environment Court Act 1979 (NSW).

23. The Court orders**:**

24. Judgment in R & D Beattie Properties Pty Ltd v Inner West Council [2026] NSWLEC 1115 is modified by this judgment in accordance with r 36.15(2) of the Uniform Civil Procedure Rules 2005 (NSW) by the amendment of paragraphs [89],[90] and deletion of [92].

25. The appeal is upheld.

26. Modification Application MOD/22024/0263 to modify Development Consent D/2018/243 is approved subject to Annexure A and Annexure B in relation to Lots 24 and 25 in Deposited Plan 2821 known as 77 Beattie Street Balmain NSW.

M Peatman

Acting Commissioner of the Court

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Annexure A (261 KB, pdf)

Annexure B (467 KB, pdf)