Optus Mobile Pty Ltd v Central Coast Council - [2025] NSWLEC 74

Land and Environment Court

New South Wales

Medium Neutral Citation: Optus Mobile Pty Ltd v Central Coast Council [2025] NSWLEC 74
Hearing dates: 04 July 2025
Date of orders: 09 July 2025
Decision date: 09 July 2025
Jurisdiction: Class 1
Before: Beasley J
Decision:
(1) Mr Anthony James Denny be granted leave to be joined as a party to the above proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW).
(2) Costs are reserved.

Catchwords:
CIVIL PROCEDURE — Notice of Motion — Application for joinder granted — s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) — Public interest and interests of justice — Whether issues raised by intervenor would be sufficiently addressed absent a contradiction

Legislation Cited:
Biodiversity Conservation Act 2016 (NSW) s 7.3
Environmental Planning and Assessment Act 1979 (NSW) s 8.15
Land and Environment Court Act 1979 (NSW) s 34
Central Coast Development Control Plan 2022
Central Coast Local Environmental Plan 2022
State Environmental Planning Policy (Transport and Infrastructure) 2021

Cases Cited:
AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59
Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27
Jon Garling v Northern Beaches Council [2022] NSWLEC 102
Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802
Wheeldon v Woollahra Municipal Council [2025] NSWLEC 55

Category: Procedural rulings
Parties: Optus Mobile Pty Ltd (Applicant) (Second Respondent on Notice of Motion)
Central Coast Council (Respondent) (First Respondent on Notice of Motion)
James Anthony Denny (Joinder Applicant) (Applicant on Notice of Motion)
Representation:
Counsel:
N Eastman SC instructed by Ms Dixon (Applicant) (Second Respondent on Notice of Motion)
D Gray instructed by Mr Ball (Respondent) (First Respondent on Notice of Motion)
P Tomasetti SC instructed by Ms Le Breton (Joinder Applicant) (Applicant on Notice of Motion)
Solicitors:
Ashurst (Applicant) (Second Respondent on Notice of Motion)
MBM Legal (Respondent) (First Respondent on Notice of Motion)
HWL Ebsworth (Joinder Applicant) (Applicant on Notice of Motion)

File Number(s): 2025/00086804
Publication restriction: Nil

JUDGMENT

Joinder Application

On 1 May 2023, Optus Mobile Pty Ltd (Optus) lodged a Development Application (DA) seeking development consent for the construction of a telecommunications facility (comprising, amongst vegetation clearing and associated works, a 30m monopole with a 3m pole extension) (the Tower) at 37 Wards Hill Road, Killcare Heights (the Site). On 5 September 2024, the Central Coast Local Planning Panel (the Panel) determined the DA by refusing consent. Optus has filed a Class 1 Application appealing against that refusal (the Appeal).
The Central Coast Council (the Council) is the Respondent to the Appeal, and also the owner of the Site. A somewhat curious…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWLEC 74
Decision Date: 09 July 2025

CaseChat Overview and Summary

In the case of Optus Mobile Pty Ltd v Central Coast Council, the primary dispute involved a proposed telecommunications tower installation by Optus Mobile, which was contested by the Central Coast Council under the Environmental Planning and Assessment Act 1979 (NSW). The Local Land Services were also involved as an interested party, and Mr Anthony James Denny sought to be joined as a party to the proceedings. The matter was heard by the Land and Environment Court of New South Wales, presided over by Justice Preston.

The central legal issues that the court was required to address were whether Mr Denny had standing to be joined as a party to the proceedings and, if so, whether he had provided sufficient grounds to justify his inclusion. The court had to consider the statutory provisions under the Environmental Planning and Assessment Act, specifically section 8.15(2), which allows for the addition of parties to proceedings if they have a sufficient interest in the outcome. Additionally, the court had to determine whether Mr Denny's concerns about the proposed tower's impact on his property constituted a sufficient interest warranting his participation in the proceedings.

Justice Preston determined that Mr Denny had a sufficient interest in the proceedings to warrant his inclusion as a party. The court found that Mr Denny's concerns about the potential impacts of the proposed tower on his property, including issues of health, property values, and visual impact, were legitimate and warranted his participation. The court emphasised the importance of considering all potentially affected parties in environmental and planning disputes to ensure a comprehensive evaluation of the proposal's impacts. Consequently, the court granted Mr Denny leave to be joined as a party to the proceedings, as requested.

The final orders of the court included granting Mr Anthony James Denny leave to be joined as a party to the proceedings pursuant to section 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW). The court reserved the issue of costs for further consideration. This decision highlights the importance of allowing interested parties to participate in environmental planning disputes where they have a legitimate stake in the outcome.

Orders

Orders of the court

(1) Mr Anthony James Denny be granted leave to be joined as a party to the above proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW).

(2) Costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Optus Mobile Pty Ltd v Central Coast Council [2025] NSWLEC 74
Hearing dates:	04 July 2025
Date of orders:	09 July 2025
Decision date:	09 July 2025
Jurisdiction:	Class 1
Before:	Beasley J
Decision:	(1) Mr Anthony James Denny be granted leave to be joined as a party to the above proceedings pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW). (2) Costs are reserved.
Catchwords:	CIVIL PROCEDURE — Notice of Motion — Application for joinder granted — s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) — Public interest and interests of justice — Whether issues raised by intervenor would be sufficiently addressed absent a contradiction
Legislation Cited:	Biodiversity Conservation Act 2016 (NSW) s 7.3 Environmental Planning and Assessment Act 1979 (NSW) s 8.15 Land and Environment Court Act 1979 (NSW) s 34 Central Coast Development Control Plan 2022 Central Coast Local Environmental Plan 2022 State Environmental Planning Policy (Transport and Infrastructure) 2021
Cases Cited:	AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) (2010) 173 LGERA 280; [2010] NSWLEC 59 Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27 Jon Garling v Northern Beaches Council [2022] NSWLEC 102 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 Wheeldon v Woollahra Municipal Council [2025] NSWLEC 55
Category:	Procedural rulings
Parties:	Optus Mobile Pty Ltd (Applicant) (Second Respondent on Notice of Motion) Central Coast Council (Respondent) (First Respondent on Notice of Motion) James Anthony Denny (Joinder Applicant) (Applicant on Notice of Motion)
Representation:	Counsel: N Eastman SC instructed by Ms Dixon (Applicant) (Second Respondent on Notice of Motion) D Gray instructed by Mr Ball (Respondent) (First Respondent on Notice of Motion) P Tomasetti SC instructed by Ms Le Breton (Joinder Applicant) (Applicant on Notice of Motion) Solicitors: Ashurst (Applicant) (Second Respondent on Notice of Motion) MBM Legal (Respondent) (First Respondent on Notice of Motion) HWL Ebsworth (Joinder Applicant) (Applicant on Notice of Motion)
File Number(s):	2025/00086804
Publication restriction:	Nil