What has happened?
In Etherington v North Sydney Council [2026] NSWCA 137 the Court of Appeal held that a Commissioner was entitled to refuse an entire modification application, even though some of the proposed changes were acceptable and others were not opposed by the Council.
Context
The owners applied under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify their development consent. They sought several changes:
the Council opposed a two-car garage, a louvred pergola and raising the swimming pool; and
the Council did not oppose changes to a privacy screen and a clerestory window.
On appeal, the Commissioner found the garage acceptable but the pergola and pool raising unacceptable. She refused the whole application rather than approving the acceptable and unopposed parts.
The decision
The Court of Appeal held that there was no duty to approve part of the application:
Section 22 of the Land and Environment Court Act 1979, which requires the Court to determine matters completely and finally, did not require partial approval. A modification application is not a "legal or equitable claim" for a "remedy".
The power to modify is discretionary. Once the Commissioner found some changes unacceptable, it was reasonable for her to refuse the application as a whole.
The Court left open whether s 4.55 allows partial approval at all. Unlike the power to grant development consent, the modification power does not expressly allow an application to be approved in part.
The owners did succeed on one point. A Land and Environment Court judge had sent the matter back for redetermination with directions that ruled out partial approval. The Court of Appeal held those directions went beyond power, and remitted the matter without them.
How will this affect you?
Bundling contentious and uncontentious changes into one modification application carries risk. A single unacceptable element may sink the whole application.
Consider lodging separate applications, or be ready to amend the application to drop contested elements before the hearing.
Whether a modification application can be approved in part remains an open question.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.