Denny v Optus Mobile Pty Ltd (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation:

Denny v Optus Mobile Pty Ltd (No 2) [2023] NSWLEC 57

Hearing dates:

Written submissions received on 6, 20 April 2023

Date of orders:

1 June 2023

Decision date:

01 June 2023

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See below in [17]

Catchwords:

COSTS – successful applicant in judicial review proceedings entitled to costs in absence of disentitling conduct – liability for costs of respondents who filed submitting appearance – consent authority liable to pay costs – beneficiary of development consent declared invalid not subject to costs order in circumstances of case

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Environmental Planning and Assessment Act 1979 (NSW), s 4.14

Gosford Local Environment Plan 2014 (NSW), cll 4.3 4.6

Uniform Civil Procedure Rules 2005 (NSW), rr 1.5 42.1, Sch 1

Cases Cited:

Brown v Randwick City Council (No 2) [2012] NSWLEC 28

Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463

Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27

Lu v Walding(No 3) [2022] NSWLEC 15

Platford v van Veenendaal and Shoalhaven City Council (No 2) [2018] NSWLEC 86

Category:

Costs

Parties:

Anthony Denny (First Applicant)
Helena Denny (Second Applicant)
Optus Mobile Pty Ltd (First Respondent)
Central Coast Local Planning Panel (Second Respondent)
Central Coast Council (Third Respondent)

Representation:

Counsel:
J McKelvey (First and Second Applicants)
N Eastman (First Respondent)

Solicitors:
HWL Ebsworth Lawyers (First and Second Applicants)
Ashurst (First Respondent)
Central Coast Council (Second and Third Respondents)

File Number(s):

2022/35494

JUDGMENT on costs

1. In Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27 (Denny No 1) I declared that a development consent granted to the First Respondent Optus Mobile Pty Ltd by the Second and Third Respondents (collectively the consent authority) for a mobile telephone tower was invalid. All the Respondents filed submitting appearances save as to costs. Consequently costs were reserved to enable any of the respondents to make submissions on costs if they chose within a specified timeframe. The First Respondent has made submissions on costs. I therefore now deal with costs of the substantive proceedings.

2. In Denny No 1 the development consent was declared invalid as the Applicants successfully made out the following grounds as described at [3]-[4]:

3. By Ground 1, the Applicants contend that the Panel had no power to grant the consent because the development was contrary to the height control set by cl 4.3(2) of the Gosford Local Environment Plan 2014 (GLEP), and the Panel made legal errors in its consideration of the cl 4.6 request submitted on behalf of the First Respondent.

4. By Ground 2 the Applicants contend that the Panel did not form the requisite opinion that either:

(a) the development conformed to the specification and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service as required by section 4.14(1) of the EPA…