Wahyu Sasterawan v Canterbury-Bankstown Council

Category: Procedural rulings

Parties: Wahyu Sasterawan (first applicant) (applicant on motion)
Aminah Theglory (second applicant) (applicant on motion)
Canterbury-Bankstown Council (respondent) (respondent on motion)

Representation: Counsel:
Self-represented litigant (Applicants)
M Bonanno (solicitor) (Respondent)
Solicitor:
Self-represented litigant (Applicants)
Canterbury-Bankstown Council Legal Team (Respondent)

File Number(s): 2025/00400199

EX-TEMPORE JUDGMENT

Background

1. There was listed before me today a motion filed by the first applicant, who represents himself and the second applicant, on 25 March 2026 (the 25 March motion). In the motion, the applicants seek the following orders:

1. That the Notice of Motion be dealt with as an urgent application.

2. That the matter be listed urgently before a Judge other than the Judge who determined the Applicants’ motion on 20 March 2026, and for that purpose be allocated to the Duty Judge or such other Judge as the Court considers appropriate.

3. That the Online Court listing on 27 March 2026 be vacated.

4. That the proceedings be removed from the Registrar list forthwith pending determination of this motion or further order of the Court.

5. Pursuant to rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), that the order made on 20 March 2026 dismissing the Applicants’ motion be set aside, or alternatively varied.

6. That the operation, enforcement and effect of the Registrar’s orders made on 4 March 2026 be stayed.

7. That the Respondent’s Statement of Facts and Contentions dated 17 November 2025 be struck out in whole.

8. Alternatively, that the Respondent be precluded from relying upon Parts A and B of the Statement of Facts and Contentions for present purposes.

9. Further alternatively, that the Respondent be directed to file and serve an amended Statement of Facts and Contentions which properly identifies and pleads, as a threshold and anterior issue, whether the subject building is a dwelling erected prior to 1950, and the legal consequences arising from that characterisation, including the application of the Local Government Act 1919 and continuing existing use rights.

10. That pending determination of that anterior issue, the Respondent be restrained from relying upon, advancing, or requiring the Applicants to meet any allegation founded upon contemporary planning controls, including allegations of unlawful use, development standard non-compliance, building code compliance, structural adequacy, flooding, drainage, sewer or related technical matters.

11. Liberty to apply.

12. Such further or other orders as the Court considers appropriate

2. The 25 March motion was first listed before me at 10 am yesterday, 1 April 2026. However, the first applicant, Mr Sasterawan, indicated that he was not in a position to proceed. Accordingly, I adjourned the hearing of the motion until 2 pm today. During the course of the morning, Mr Sasterawan advised my chambers that he was content for the motion to be determined on the papers. I have proceeded accordingly. Annexed to Mr Sasterawan’s email advising that he was content for the motion to be determined on the papers was “Further Amended Orders Sought” (the further amended orders sought) and further submissions “prepared for the hearing listed at 2pm and … directed to the applicant’s motion filed 25 March 2026” (today’s further submissions).

3. The 25 March motion was supported by an affidavit of the first applicant dated 24 March 2026.

4. The 25 March motion is brought in relation to a Class 1 appeal filed by the applicants on 17 October 2025 pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Canterbury-Bankstown Council (C****ouncil) to issue a Building Information Certificate (BIC) under Part 6 of the Act in relation to Lot 19, DP 12834, 658 Punchbowl Road, Wiley Park (the property).

5. In the Class 1 appeal, the applicants seek the following orders:

1. The appeal be upheld and the Council’s refusal of Building Information Certificate application No. 96/2025 (dated 25 August 2025) be set aside.

2. The Court issue a Building Information Certificate for the existing two detached dwellings at Lot 19 DP 12834, 658 Punchbowl Road, Wiley Park NSW 2195; or, in the alternative, remit the application to Council with directions to issue the certificate.

6. Order 4 in the 25 March motion seeks to set aside or vary “the order made on 20 March 2026 dismissing the Applicants’ motion”. That is a reference to the judgment of Beasley J in this Court delivered on 20 March 2026. [1] In that judgment, Beasley J dismissed a notice of motion filed by the applicants on 7 March 2026 (the 7 March motion). In the 7 March motion, the applicants sought the following orders which were in numerous respects similar to the orders sought in the motion before me today:

1. The time for service and hearing of this Notice of Motion be abridged to the extent necessary.

2. The proceedings be listed for urgent directions before a Judge of the Court.

3. The Applicant be granted leave to amend the Applicant’s contentions in the proceedings in the form annexed to the affidavit of Wahyu Sasterawan affirmed 6 March 2026, or such other form as the Court considers appropriate.

4. Pending further order of the Court, the directions made on 4 March 2026 requiring expert conferencing and the preparation of joint expert reports be stayed or otherwise not take effect.

5. Alternatively, the directions made on 4 March 2026 requiring expert conferencing and preparation of joint expert reports be set aside or varied.

6. The Respondent identify and particularise the statutory and planning basis upon which the Respondent contends that the dwelling or dwellings on the subject property require development consent, a notional development application assessment, or are otherwise unlawful, including identification of: (a) the statutory provisions relied upon; (b) the planning instrument, provision, or regulatory mechanism said to give rise to that requirement; and (c) the factual basis upon which the Respondent contends development consent is required or was required.

7. The Respondent file and serve a concise statement (not exceeding 5 pages) identifying: (a) the factual basis upon which it contends the dwelling or dwellings are unlawful or require consent; (b) the statutory and planning provisions relied upon; and (c) the issues said to require determination by expert evidence.

8. Following compliance with Orders 6 and 7, the proceedings be relisted for further directions, including directions as to whether expert evidence is required.

9. The parties have liberty to apply on short notice, including pursuant to Order 16 of the orders made on 4 March 2026.

10. The Court make such further or other orders as it considers appropriate.

11. The costs of this Notice of Motion be reserved.

7. The grounds stated in the 7 March motion were:

1. The applicant seeks leave to amend the applicant’s contentions in the proceedings to more clearly identify the historical and factual matters relied upon in relation to the dwelling or dwellings on the subject property.

2. Historical material presently available, including Council records referring to rates from approximately 1925, a 1934 subdivision plan, archival material concerning a cancelled 1948–1949 “new cottage” application, and later Council records, supports the inference that the dwelling or dwellings on the subject property have existed for many decades.

3. Council correspondence dated 3 August 2021, and 24 August 2021 acknowledges the long-standing existence of the front and rear dwellings and the possible age of those dwellings.

4. In the circumstances, the present absence of identified approval records is not, without more, determinative, and may reflect the age of the development and the incompleteness of archival records.

5. A threshold issue arises as to the statutory and planning basis upon which the respondent contends that the dwelling or dwellings require development consent, a notional development application assessment, or are otherwise unlawful, and that issue should be clarified before the parties incur substantial expert costs.

6. By Order 3 made on 4 March 2026, the Court directed expert conferencing and joint expert reporting in relation to town planning issues and building issues by reference to specified contentions in the Respondent’s statement of facts and contentions.

7. The directions made on 4 March 2026 requiring expert conferencing and joint expert reports are premature because they proceed before clarification of the statutory and planning basis of the Respondent’s contention that the dwelling or dwellings require development consent, a notional development application assessment, or are otherwise unlawful.

8. In those circumstances, the necessity, scope and proportionality of the expert evidence directed on 4 March 2026 cannot yet be properly assessed, and compliance with those directions is likely to occasion unnecessary cost and delay.

9. The directions made on 4 March 2026 are, at this stage, disproportionate, overly broad and oppressive having regard to the age and historical context of the dwelling or dwellings, the nature of the issues in dispute, and the unresolved threshold issues identified above.

10. No joint expert conference or joint expert report has yet occurred, and a stay, setting aside or variation of those directions at this stage would avoid unnecessary expense pending clarification of the Respondent’s case and further directions of the Court.

11. It is in the interests of justice, and consistent with the just, quick and cheap resolution of the real issues in the proceedings, that the Applicant be granted leave to amend the Applicant’s contentions, that the proceedings be listed urgently before a Judge, and that the directions made on 4 March 2026 be stayed, set aside or varied.

8. In Orders 4 and 5 in the 7 March motion, the applicants sought to have the Court stay, set aside or vary the “directions made on 4 March 2026 requiring expert conferencing and the preparation of joint expert reports”. That is a reference to orders made by the Registrar on 4 March 2026 (the Registrar’s orders). Likewise, in Order 6 sought in the 25 March motion, the applicants seek that the “the operation, enforcement and effect of the Registrar’s orders made on 4 March 2026 be stayed”. As set out by Beasley J in his Honour’s judgment of 20 March 2026, the orders made by the Registrar on 4 March 2026 in relation to the Class 1 appeal were as follows:

The Court directs that:

1. The proceedings are fixed for hearing on 30.6.26.

2. The hearing is to commence on site at 9:30am and return to Court.

3. Under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (‘UCPR’), the Court makes the following directions regarding expert evidence:

i. ___ for the Applicant and Brett Daintry for the Respondent are to confer in relation to town planning issues under UCPR r 31.24 and prepare a joint expert report in relation to contentions 1 and 2 of the Respondents SOFAC filed 17 November 2025;

ii. the joint expert report is to be filed and served by 2.6.26.

iii. ___ for the Applicant and Brett Daintry for the Respondent are to confer in relation to Building Issues under UCPR r 31.24 and prepare a joint expert report in relation to contentions 3, 4, 5 and 6 Respondents SOFAC filed 17 November 2025;

iv. The joint expert report is to be filed and served by 2.6.26.

Unless the Court otherwise orders, expert evidence may not be adduced at the hearing otherwise than in accordance with the directions made by the Court in accordance with UCPR rr 31.19 and 31.20, including compliance with directions as to the time for service and filing of experts' reports and joint expert reports.

4. Parties are to serve a copy of these directions, the statements of facts and contentions, Division 2 of Pt 31 of the Uniform Civil Procedure Rules, the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules, and the Court policies on Joint Reports and on Conference of Expert Witnesses on all experts upon whose evidence they propose to rely within 3 business days of these orders being made, or, for a statement of facts and contentions (or reply) filed after the making of these orders, within 3 business days of them being filed or served.

5. Experts are directed to give written notice to the Court and the party instructing them if for any reason they anticipate that they cannot comply with these directions. In that case, or if the experts have failed to comply with these directions, the parties will promptly list the matter before the Court for directions and give written notice to the other parties. Default without leave of the Court can result in the imposition of sanctions. Any written expert evidence is to include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct.

6. Experts are to ensure that a joint conference is a genuine dialogue between experts in a common effort to reach agreement with the other expert witness about the relevant facts and issues. Any joint report is to be a product of this genuine dialogue and is not to be a mere summary or compilation of the pre-existing positions of the experts.

7. A joint report is to identify the experts involved in its preparation, the date of their joint conferences, the matters they agreed about, the matters they disagreed about and reasons for agreement and disagreement. A joint report should avoid repetition and be organised to facilitate a clear understanding of the final position of the experts about the matters in issue and the reasoning process they used to reach those positions. Each expert is to sign and date the joint report.

8. Legal representatives are not to attend joint conferences of experts or be involved in the preparation of joint reports without the leave of the Court.

9. A party calling a witness may not, without the leave of the Court, lead evidence from the witness the substance of which is not included in a document served in accordance with the Court's directions.

10. If any witness is required for cross-examination, notice is to be given at least seven days before the conciliation conference and hearing.

11. A party who proposes to object to any part of an affidavit, statement or report is to file and serve notice of its objections, including the grounds in support, at least seven days before the conciliation conference and hearing.

12. The respondent consent authority is to file and serve a bundle of documents by seven (7) days before the conciliation conference and hearing. The bundle is to contain copies of relevant environmental planning instruments, relevant extracts from development control plans and policies, and documents evidencing the lodgement, processing and determination of the application by the consent authority, including all submissions from objectors, and the decision of the consent authority but is not to otherwise include copies of any documents annexed to the residential development appeal. Unnecessary copying and duplication of documents is to be avoided. The bundle is to be subdivided into relevant divisions, paginated and have a table of contents.

13. The respondent consent authority is to file and serve a notice of objectors who wish to give evidence at the hearing, of whom the consent authority is aware, by seven (7) days before the conciliation conference and hearing. The notice is to identify the objector, their address, where they wish to give evidence (on site or in Court) and whether they made a written submission about the application (in which event, the notice is to provide the page number of that submission in the key bundle). If there is no submission, the respondent consent authority should, if possible, file and serve a short statement identifying the topics about which the objector wishes to give evidence.

14. Draft conditions of consent

(a) The respondent consent authority is to file and serve draft conditions of consent (in both hard copy and electronic form) by fourteen (14) days before the conciliation conference and hearing

(b) The applicant for consent is to file and serve its draft conditions in response (in both hard copy and electronic form) by seven (7) days before the conciliation conference and hearing.

(c) Each party's draft conditions of consent are to identify any variance from the standard conditions of consent for residential development, including conditions which have been added, amended or deleted.

15. If any party fails to comply with a direction of the Court that some action be taken by а specified time, and the defaulting party is not able to take that action within two days of the specified time, the defaulting party is to:

(a) relist the matter before the Court within three (3) days of the specified time; and

(b) provide to the Court on the relisting an affidavit explaining the non-compliance, the reason for the non-compliance and what action the party proposes to take and when the party proposes to take action to comply with the direction.

Note: The Court will usually order that the defaulting party pay the costs of the other party of and occasioned by the non-compliance and the relisting unless it appears to the Court that some other order should be made as to the whole or any part of the costs.

16. Liberty to re-list

The parties have liberty to restore on two (2) working days' notice.

17. Concurrent evidence of experts

At the hearing the evidence of experts is to be given by way of concurrent evidence, unless the hearing Commissioner directs otherwise.

9. The 25 March motion, the decision of Beasley J dismissing the 7 March motion, and the Registrar’s orders all refer to Council’s Statement of Facts and Contentions filed on 17 November 2026 (C****ouncil’s SOFAC) which sets out Council’s contentions for its refusal to issue a BIC in relation to the property. Those contentions were summarised by Beasley J at [6] of his reasons for judgment as follows:

(1) Non-compliance with the Canterbury-Bankstown Local Environmental Plan 2023 (LEP) relating to:

(a) land use permissibility - unauthorised dual occupancy;

(b) non-compliance demonstrated with height controls;

(c) floor space ratio control exceedances;

(d) essential services – not demonstrated for stormwater, flood-safe design; and

(e) stormwater management – no stormwater engineering plans.

(2) Non-compliance with the Canterbury-Bankstown Development Control Plan 2023 (DCP) relating to:

(a) boundary setback encroachment;

(b) exceedance of “impervious area” limitation;

(c) landscape and deep soil non-compliance – no landscape plan submitted;

(d) parking non-compliance;

(e) waste management non-compliance – no plan submitted; and

(f) failure to meet dual occupancy design controls.

(3) Insufficient information to assess the application as to:

(a) BCA compliance report;

(b) structural adequacy certification;

(c) stormwater/flooding report;

(d) Sydney Water approvals (BPS, Section 73);

(e) BASIX Certificate;

(f) RL survey;

(g) Waste Management Plan; and

(h) parking plans.

(4) Failure to demonstrate Building Code of Australia compliance.

10. In their submissions for the hearing of the motion before Justice Beasley, the applicants submitted (as summarised by his Honour at [7]) that:

(a) the Council's approach is wrong, and proceeds from an “incorrect legal starting point”. This submission seems to be related to the age of the property;

(b) where longstanding construction “predates the modern planning regime… the legality must be assessed by reference to the law then in force”;

(c) the key issue is one of “historical legality, not merely present administrative record reconstruction”;

(d) if the dwelling or the relevant works or use were lawful when established, “then that historical lawfulness is legally significant under the current statute”;

(e) it is insufficient for the Respondent “merely to point to current BCA non-compliances or the absence of modern approval material”;

(f) under various provisions of the EPA Act, “historical lawfulness is the critical threshold inquiry for the existence of existing use rights or other lawful use protection”; and

(g) the “real issues have not been properly defined” by the Council.

11. In the 25 March motion, the applicants again seek for Council’s SOFAC to be struck out, and for Council to file and serve an amended statement of facts and contentions which “properly identifies and pleads, as a threshold and anterior issue, whether the subject building is a dwelling erected prior to 1950”. The applicants contend that the anterior and determinative issue in the proceedings is whether the subject building fails to be considered within the historical legislative framework, including the Local Government Act 1919 (NSW), together with the applicable transitional provisions, and whether convincing existing use rights arise. They contend that unless and until that anterior issue is properly identified, framed and determined, there is no proper basis for requiring them to engage with technical allegations framed by reference to contemporary planning controls or to identify and commit to expert disciplines directed to such allegations.

12. In relation to the Registrar’s orders made on 4 March 2026, the first applicant in his affidavit dated 24 March 2026 contends that the orders were “premature and wrongly sequenced, because they required the Applicants to take substantive forensic steps before the proper legal framework of the dispute had been identified and determined”. This was largely a repetition of the submission made to Beasley J at the hearing of the 7 March motion where the first applicant submitted that the Registrar’s orders were “[m]aterially wrong in legal conception, seriously misguided in procedural sequence, and misconceived as an exercise of interlocutory case management…[and] …moved the parties into expert or technical processes before the Respondent had articulated the correct statutory pathway of its case", and that before such directions were made, the respondent should be required to "identify the historical legislative basis on which it says the dwelling or use was unlawful".

13. In relation to Council’s SOFAC, the submissions made in support of the 25 March motion were largely the same as those made to Beasley J at the hearing of the 7 March motion. Beasley J said at [12] of those submissions as follows:

the submissions that have been made to me by the Applicants are really the Applicants' seeking to run their appeal before me. That is something that I am not hearing today. Whether or not the contentions in the Council's SOFAC can be successfully maintained at a final hearing is not the key issue on the motion. The contentions are clear and concise, and set out the reasons why the BIC was refused, and why the Council contends it will succeed at the appeal.

14. And at [13], Beasley J said:

Whether or not the Council will succeed on the Applicants' Class 1 Appeal is not in issue before me today. Nothing in the Applicants' evidence or submissions persuades me that I should make orders compelling the Respondent Council to put its contentions in its SOFAC the way the Applicants want the Council to put those contentions. Again, the contentions are clear and appropriately detailed.

15. Beasley J concluded at [14] in relation to the Registrar’s orders as follows:

I am also unconvinced that the orders made by the Registrar on 4 March 2026 should be either stayed or in any way set aside or varied. Those orders are appropriate case management orders for an appeal such as this. They contain an order for experts in town planning and building issues to confer, and produce a joint report, relating to the contentions in the Council’s SOFAC. The Applicants can seek to take up that order, or not, in terms of joint conferencing and a joint report.

16. Attached to the email received from the applicants during the course of today were the following “Further Amended Orders Sought”:

1. Pursuant to UCPR r 36.16(3A), the judgment and orders made on 20 March 2026 be set aside.

2. The directions made on 4 March 2026 insofar as they require the nomination, engagement, briefing, conferencing, joint reporting, or other participation of experts be vacated as premature.

3. In lieu thereof, within 7 days the Respondent file and serve a short written statement identifying, with precision and particularity:

a) the statutory and planning basis upon which it contends that the subject structures or works are unlawful, require development consent, require a notional development application assessment, or are otherwise liable to the relief sought;

b) the statutory provisions, planning instrument provisions, and any regulatory mechanism relied upon in support of those contentions;

c) the factual basis for each such contention, including the basis upon which it is said that any development consent is or was required; and

d) the issue or issues, if any, said to require expert evidence, and the discipline or disciplines of any such evidence.

4. Upon compliance with order 3, the proceedings be listed for short directions to determine whether any expert evidence is necessary at all.

5. Costs be reserved.

6. Liberty to apply.

17. It is not entirely clear whether the “Further Amended Orders Sought” were intended to replace entirely the relief sought in the 25 March motion, however, it is clear that the applicants seek to have the judgment and orders made by Justice Beasley on 20 March 2026 set aside. Further, it is clear from today’s further submissions that the applicants seek that those orders be set aside “because the motion that was before the Court was dismissed without first identifying, isolating, or determining the anterior issue upon which the necessity for expert evidence depended”. The 11 page submissions are apparently addressed to an apprehension that I yesterday “indicated that the difficulty with the Applicants’ current motion was that it had not sufficiently identified why the judgment of 20 March 2026 itself should be set aside”.

Consideration and conclusions

18. In the motion before me, the applicants have again attempted to conduct their Class 1 appeal. Whether or not the contentions in Council’s SOFAC can be successfully maintained at a final hearing is not an issue on the present motion, as it was not an issue on the motion heard by Beasley J. There was nothing in the applicants’ evidence or submissions that satisfies me that I should make an order requiring Council to file and serve an amended statement of facts and contentions that “identifies the historical legislative basis on which it says the dwelling or use was unlawful”.

19. In any event, and more significantly, the applicants on the present motion are in effect seeking to appeal or challenge the decision of Beasley J delivered on 20 March 2026, or otherwise reagitate the issues decided by his Honour. In so doing, the applicants rely on r 36.16(3)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) which provides as follows in relation to the Court’s power to set aside or vary a judgment or order:

36.16 Further power to set aside or vary judgment or order

(cf SCR Part 40, rule 9)

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

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

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(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—

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(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.

20. In their submissions filed on 27 March 2026 in support of today’s motion, the applicants say that their application is properly brought under UCPR r 36.16 and the Court’s interlocutory case management powers: “The relevant principles are that the power must be exercised with caution, that it is not a back door for re-argument, but that it may be exercised where a party has not been heard on a matter decided by the Court, where the Court has proceeded on a misapprehension of fact or law, or where a significant submission has been overlooked”.

21. There is nothing in r 36.16 which confers a power on me to set aside or vary a judgment or order of another judge of the court. Insofar as the applicants rely on Consolidated Lawyers Ltd v Abu-Mahmoud [2] (Consolidated Lawyers) for the proposition that where it appears a primary judge has overlooked a significant point in formulating judgment, the proper course, absent particular reasons to the contrary, is to apply to the judge under r 36.16 on the basis that the significant submission was not dealt with, this is not the course upon which the applicants have embarked here. They have not sought to apply to Beasley J under r 36.16. Rather, the motion has been listed before me as duty judge.

22. In Consolidated Lawyers Ltd v Abu-Mahmoud, Macfarlan JA (Bathurst CJ and Tobias AJA agreeing) said at [39] to [40] as follows (emphasis added):

The appellants asserted on the appeal that although this argument had been put to the primary judge, his Honour had not addressed it. Assuming for the moment that this is correct, the appellants should, in my view, have applied to the primary judge pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) to set aside or vary his Honour’s judgment on the ground that he had not dealt with a significant submission that they had made. …

I do not suggest that parties must always approach a primary judge if it appears that the judge has overlooked a significant point in formulating the Court’s judgment. It is however a course that should be adopted in the absence of particular, valid, reasons for not doing so. The primary judge is almost always in a better position than an appellate court to decide an overlooked point and appellate courts are entitled to have the benefit of a primary judge’s views about matters in issue on appeal. The requirement in s 56 of the Civil Procedure Act 2005 (NSW) to have regard to the “just, quick and cheap resolution of the real issues in the proceedings” strongly supports the adoption of this course in the absence of particular reasons for the point being taken directly on appeal.

23. The applicants have made various written submissions in support of the relief they seek in the motion before me, including that:

24. by delivering the ex tempore judgment on 20 March 2026, “the Court erred in failing to address the Applicants' significant anterior submission” that Council's SOFAC “was advanced on a materially false, misleading and concealed factual premise, including by reliance upon a modern technical framework without proper engagement with Council's own earlier archival material and acknowledgments concerning the long-standing, pre-1950 existence of the dwellings”;

25. whilst they accept that r 36.16 is not to be used to re-agitate arguments already considered, or to improve upon arguments that might have been put differently, that principle is not offended here because the present motion “does not ask the Court simply to prefer the Applicants’ submission over the Respondent’s submission after a concluded merits contest”. Rather, it “asks the Court to address the anterior matter that the applicants say was not dealt with, namely whether expert evidence should have been ordered before the Court first determined the threshold legal and procedural framework for the issues in dispute”;

26. in that sense, the applicants “do not seek a rehearing of the whole controversy”. They seek “correction of a readily identifiable and presently consequential error in sequencing and approach, one that can and should be addressed now rather than by the complication and expense of an appeal; and

27. the respondent’s “present-day planning case wrongly ignores the legal necessity to recognise and evaluate pre-existing status under the historical legislative framework, just as later statutory regimes do not erase earlier lawful status but commonly preserve it through transitional recognition”.

28. Likewise, today’s further submissions contend that the applicants “rely upon a specific and confined procedural error” which is “not expressed as a general disagreement with the Court’s management of the case”, but is rather that “the judgment of 20 March 2026 dismissed the Applicants’ challenge without first determining, or requiring the Respondent to identify, the anterior legal issue upon which the necessity for expert evidence depended”.

29. The difficulty with all of these submissions is that they proceed on a misapprehension as to the powers available to a judge of the same court to set aside or vary a judgment or order of another judge of the same court. Accordingly, I have determined to dismiss the applicants’ notice of motion dated 25 March 2026.

30. Accordingly, I make the following order:

31. The applicants’ notice of motion dated 25 March 2026 is dismissed.

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Endnotes

Sasterawan v Canterbury-Bankstown Council [2026] NSWLEC 29.

[2016] NSWCA 4.