Renata Agnieszka Etherington v North Sydney Council

2026/00021405

LAND & ENVIRONMENT – the Etheringtons (the applicants) seek leave to appeal from a decision of Pain J in part, holding that (i) the Commissioner did not have a duty to approve the Modification Application in part in respect of the uncontested aspects of the application and (ii) the matter should be remitted to the same Commissioner. The proceedings concern an appeal under s 56A of the Land and Environment Court Act 1979 against a Commissioner's decision dismissing a Class 1 modification appeal. The appellants had sought several modifications to an existing development consent for a new dwelling in Cammeray. Three aspects were opposed: a two-car garage, an upper level louvred pergola, and the raising of the swimming pool. The Commissioner found the garage acceptable, but refused the pergola and pool raising. On appeal, the appellants argued that there was legal unreasonableness in failing to partially approve the application, failure to determine principle contested issues, and failure to provide adequate reasons. Pain J held that the Commissioner: (i) was not legally obliged to grant partial approval where the appellants had not expressly sought such partial approval at first instance; (ii) failed to provide adequate reasons concerning the swimming pool modification; and (iii) failed to analyse or engage with the expert evidence, which constituted a failure in the fact-finding process and a denial of procedural fairness. Her Honour considered this error material, and therefore remitted the matter to the Commissioner for rehearing. Three grounds of appeal are advanced by the Etheringtons. First, that the primary judge erred in finding that the Commissioner did not have a duty in law to modify the development consent (to the extent that the Commissioner found that discrete modifications of the consent were agreed or otherwise acceptable). Secondly, that the primary judge erred in finding that the Commissioner did not fail to exercise her jurisdiction by failing to modify the development consent. Thirdly, that the primary judge erred in finding that the proceedings should be remitted to Commissioner in circumstances where she had already determined that the development consent ought not be modified to allow the pool level and surrounds to be raised (such that there is a reasonable apprehension of bias).

Etherington v North Sydney Council [2025] NSWLEC 141

Etherington v North Sydney Council (No 2) [2026] NSWLEC 27