Optus Mobile Ltd v Canada Bay City Council

Optus Mobile Ltd sought a stay of an order made by the Land and Environment Court of New South Wales, which had determined that development consent was required for a telecommunications facility erected by Optus. The Council had initiated proceedings in the Land and Environment Court, and despite Optus proceeding with the erection of the facility, the Court found that development consent was indeed necessary. The proceedings were adjourned to allow Optus to apply for consent, but an interim order was made preventing the use of the facility.

The central legal issue before the Court was whether the interim order preventing the use of the telecommunications facility should be stayed pending Optus's appeal against the primary decision. This required the Court to consider the balance of convenience between the parties.

The Court reasoned that Optus had proceeded with the erection of the facility at its own risk, knowing that development consent was likely required and that its use would be illegal without it. Furthermore, the Council had the benefit of a judicial decision supporting its position, which also served to allay public concerns regarding electromagnetic emissions, irrespective of the scientific validity of those concerns. In light of these factors, the Court concluded that the balance of convenience did not favour granting a stay.

Consequently, the notice of motion filed by Optus was dismissed with costs. However, the existing stay was continued for a period of seven days from the date of the decision.