Etherington v North Sydney Council

[2025] NSWLEC 141

NSW Land and Environment Court

Built by Barristers,
For Australian Law.

1. Appeal
1. s 56A appeal on questions of law
1. no legal obligation of commissioner to uphold part of modification appeal in absence of express case to do so
1. scope of s 22 of Land and Environment Court Act 1979

Section 22 of the Land and Environment Court Act 1979 (NSW) does not impose a positive legal duty on a commissioner to approve uncontested or agreed parts of a modification application where the applicant has not expressly sought partial approval; the section confers power on the Court and requires it to grant remedies in respect of claims properly brought forward, but does not override the Court's decisional freedom in merits appeals.
In a merits appeal involving contested expert evidence on matters such as view loss and privacy, a commissioner must engage with and analyse the substance of that expert evidence in the judgment; a bare statement of conclusions without any identification or analysis of the expert evidence constitutes a failure to give adequate reasons, amounting to an error of law on a s 56A appeal.
Parties in Class 1 proceedings are bound by the case they presented to the commissioner; a position not expressly articulated at first instance cannot be raised for the first time on a s 56A appeal, and it is not reasonable to expect a commissioner to infer a party's unarticulated case.