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

1. 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).

2. The Central Coast Council (the Council) is the Respondent to the Appeal, and also the owner of the Site. A somewhat curious aspect of this matter is that the Council (which is the consent authority) has already entered into a series of leases through which it has leased the Site to Optus. [1] The current lease is for a 5-year term that expires on 21 December 2026, and provides for Optus to pay rent of $34,000 per annum (plus GST). Three other leases have already been entered into, the last of which has an expiry date of 21 December 2041 (with rental payments of $45,759.52).

   1. Exhibit B.

3. A s 34 Conciliation Conference for the Appeal is to take place on 14 July 2025. Anthony James Denny (Denny), an owner of the land that surrounds the Site, has filed a motion seeking the Court’s leave to be joined to the Appeal pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). Optus opposes the joinder application. The Council neither consents nor opposes.

4. For the reasons that follow, I consider that leave should be granted to Denny to be joined to the Appeal proceedings.

Background

5. Most of the relevant factual background to both the Appeal proceedings and the motion is set out in an affidavit in support of the motion of Danielle Le Breton dated 20 June 2025 (the Le Breton Affidavit), and the Exhibit DLB-1 to that affidavit (Exhibit A). Ms Le Breton is the solicitor on record for Denny.

6. Denny is one of the registered proprietors of the following parcels of land:

1. Lot 2 in Deposited Plan 616676 known as 31 Wards Hill Road, Killcare Heights;

2. Lot 435 in Deposited Plan 755234 known as 45 Wards Hill Road, Killcare Heights; and

3. Lot 434 in Deposited Plan 660287 known as 49 Wards Hill Road, Killcare Heights (the Denny Land).

7. As is depicted in the figure below, the Denny Land (outlined in blue) surrounds the Site (outlined in red).

Figure 1: Aerial of the Site and Denny Land (Exhibit C)

8. As is at least partially clear from Figure 1, low density residential dwellings are located to the south and west of the Site, while Denny’s Land adjoins the Site, and the Denny family home can be seen to the north-east of the Site. Bouddi National Park is nearby, to the north-west and north of the Site. The Site is zoned C4 Environmental Living in the Central Coast Local Environmental Plan 2022 (CCLEP), the objectives of which are:

“1 Objectives of zone

- To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

- To ensure that residential development does not have an adverse effect on those values.

- To allow additional land uses that will not have an adverse impact on those values.” [2]

2. Land Use Table, Zone C4 Environmental Living, Central Coast Local Environmental Plan 2022; Council’s Statement of Facts and Contentions (Council’s SOFAC) at [5.4].

9. Telecommunications facilities are prohibited in the C4 Environmental Living zone, but may be carried out with consent by reason of cl 1.9(1) of the CCLEP and s 2.143 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP).

10. There is a history approaching six years for Optus’ proposed development. On 17 December 2019, it lodged a DA seeking a consent for (amongst other things) construction of a 33m telecommunication pole at the Site. On 15 November 2021, the Panel granted consent to that DA.

11. On 7 February 2022, Denny commenced judicial review proceedings in the Court challenging the validity of that consent. On 16 March 2023, Justice Pain made an order declaring that the consent was invalid: Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27.

12. Following lodgement of the subsequent DA by Optus on 1 May 2023, Denny made a submission objecting to the grant of consent. [3] In his submission, Denny raised the following issues as reasons for it to be refused:

    3. Exhibit A at Tab 2.

1. impact on Indigenous cultural heritage values;

2. inconsistencies within the DA;

3. inconsistency with objectives of the relevant C4 Environmental Living zone;

4. impact on visual amenity;

5. impact on nearby residential dwellings;

6. high visibility of Tower and infrastructure from Wards Hill Road;

7. the Tower will not provide adequate coverage;

8. Flora and Fauna Assessment is out of date;

9. potential impacts of electromagnetic energy;

10. insufficient tree retention information; and

11. impacts on the Bouddi National Park.

13. As stated above, on 5 September 2024 the Panel determined that the DA should be refused. Amongst the reasons for the refusal were the following: [4]

    4. See Exhibit A at Tab 4.

1. the proposed development fails to provide sufficient information to enable proper assessment for the ‘Tests of Significance’ pursuant to s 7.3 of the Biodiversity Conservation Act 2016 (NSW) and the “NSW Threatened Species Test of Significance Guidelines”;

2. insufficient information has been provided to enable proper assessment with regards to the removal of vegetation;

3. the Panel could not be satisfied that the proposed telecommunications facility has been designed and sited to minimise visual impact;

4. insufficient information has been submitted to enable proper assessment and determine that resultant cumulative levels of radio frequency emissions are within the maximum human exposure levels;

5. the Panel cannot be satisfied that the proposed telecommunications facility “minimises disturbance and risk … to flora and fauna”;

6. insufficient information has been provided to identify the likelihood of harming an Aboriginal place and/or Aboriginal object;

7. the Applicant has failed to provide a suitable alternative site assessment;

8. the proposed development is inconsistent with the CCLEP;

9. the proposed development is inconsistent with the Central Coast Development Control Plan 2022 (CCDCP);

10. insufficient information has been submitted to enable proper consideration of potential short- and long-term impacts on nominated flora and fauna, in addition to those from electromagnetic energy (EME) and Aboriginal cultural heritage; and

11. the Panel considered that the application does not contain sufficient information for the consent authority to be satisfied that the development is in the public interest.

14. As also stated above, Optus commenced the Appeal proceedings on 5 March 2025. The Council has filed a Statement of Facts and Contentions (Council’s SOFAC). [5] It contends that the DA should be refused on the following grounds:

    5. Exhibit 1.

1. visual impact;

2. Aboriginal heritage, particularly that the Archaeological Peer Review does not comply with the Aboriginal due diligence assessment requirements of Part 3.6.1.4 and Part 3.6.2.2(a)(i) of the CCDCP; and

3. insufficient information in relation to the following matters:

1. the specific location of the proposed development;

2. the DA is not accompanied by an Aboriginal Cultural Heritage Due Diligence Report;

3. the Landscaping Plan is inconsistent with recommendations of the Bushfire Protection Assessment;

4. the design of the proposal has not had regard to the recommendations or “on-site actions” of the Visual Impact Assessment;

5. the DA is not supported by a complete or cohesive document that demonstrates consideration of alternate design solutions; and

6. various further ecological information is required to allow the consent authority to understand the actual and likely ecological impacts and if all reasonable measures to avoid and minimise impacts have occurred.

15. Denny considers that there are additional grounds that support a determination of refusal. In a draft Statement of Facts and Contentions exhibited to the Le Breton Affidavit (Exhibit A at Tab 6) he contends that the DA should be refused on the basis of the following matters:

1. electromagnetic energy, in particular that “impacts on the occupants of surrounding residential dwellings and flora and fauna are unknown and the precautionary principles should be adopted”;

2. visual impact on the Denny Land;

3. alternative sites – “[t]he Development Application must be refused because inadequate consideration of alternative sites has occurred”;

4. impact on property values;

5. impact on Aboriginal cultural heritage;

6. impacts on public bushland;

7. arboricultural impacts, and in particular the “Development Application should be refused because the proposed development will have unacceptable impacts on trees”;

8. bushfire – “[t]he Development Application should be refused as the consent authority cannot be satisfied that the proposed development conforms to the specifications and requirements of Planning for Bushfire Protection 2019… as required by s 4.14 of the EP&A Act”;

9. biodiversity impacts; and

10. visual impact: locality – the “Development Application should be refused because the visual impacts of the proposed development on views from and to significant local and regional viewpoints are unacceptable”.

16. I am told that Denny has engaged a number of experts to assist him in the Appeal were he to be joined, and that they are available to attend the s 34 Conference on 14 July 2025. [6]

    6. Le Breton Affidavit at [25] and [42].

Motion Hearing and Evidence

17. At the hearing of the motion before me, Denny was represented by Mr P Tomasetti SC, who read the Le Breton Affidavit in support of the motion. Optus was represented by Mr N Eastman SC. The Court was provided with written submissions by both parties to assist me in resolving the motion. In addition, Mr Eastman read an affidavit of Eric Julian Zykov dated 1 July 2025 (Zykov Affidavit). In his affidavit, Mr Zykov (who is the solicitor for Optus with carriage of the matter) attests, amongst other things, to the following matters:

1. that Optus intends to provide further information at the s 34 Conference relating to Council’s “insufficient information contentions” in its SOFAC; and

2. that various submissions have been made in respect to the DA concerning the “impacts of EME”, “arboricultural impacts”, “visual impacts on viewpoints”, and “bushfire risks and adequacy of the Asset Protection Zone”.

Statutory Provision and Legal Principles

18. Section 8.15(2) is in the following terms:

8.15   Miscellaneous provisions relating to appeals under this Division

…

(2)  On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion—

(a)  that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b)  that—

(i)  it is in the interests of justice, or

(ii)  it is in the public interest,

that the person be joined as a party to the appeal.

19. As is clear from its text, pursuant to s 8.15(2)(a), in order to grant leave to a person to be joined to proceedings, the Court must form the opinion that the joinder applicant is able to raise an issue that should be considered on the appeal but would not likely be sufficiently addressed if the joinder applicant was not joined as a party. Joinder therefore can be granted not just in circumstances where the joinder applicant wishes to raise a relevant issue not currently raised on the appeal, but where they raise an issue that is already the subject of the appeal, but is one that would “not be likely to be sufficiently addressed” were they not joined. Alternatively, under s 8.15(2)(b), the Court can grant joinder if it forms the opinion that it is either in the interests of justice or in the public interest that the joinder applicant be joined as a party to the appeal.

20. Case law also provides guidance as to the appropriate approach to an application for joinder such as this. A helpful summary of relevant principles is contained in the judgment of Pepper J in Jon Garling v Northern Beaches Council [2022] NSWLEC 102 where her Honour at [47] noted the following:

“Those observations are supported by a plethora of authorities of this Court and the principles applicable to applications for joinder are well established and may be summarised below:

(a) an application under s 39A of the LEC Act is a two stage process to determine firstly, whether s 39A is met and secondly whether the exercise of discretion justifies an order (Quakers Hill SPV Pty Ltd v Blacktown City Council (No 2) [2012] NSWLEC 243 at [44]);

(b) s 8.15(2) is facultative in the sense of enabling the Court to join a person to proceedings under the EPAA of the types listed in that section who would not otherwise have a right to be a party to such proceedings (Morrison Design Partnership Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 at [42]);

(c) caution should be exercised before an order for joinder is made (Morrison at [41] – [54]):

(i) the power under s 8.15(2) of the EPAA is not intended to be a plenary power to allow, in each and every circumstance, objectors to non-designated development to become a party to an appeal;

(ii) community consultation and public participation under the EPAA are not intended to give the community or affected persons who object to development any entitlement to veto development; and

(iii) mere dissatisfaction with the merit outcome of a determination of a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission;

(d) a multiplicity of parties is undesirable (Bongiorno Hawkins Frassetto at [9] and The Carrick Group Pty Ltd v Blue Mountains City Council [2010] NSWLEC 205 at [34]);

(e) so too is a multiplicity of experts;

(f) both the multiplicity of parties and experts undermines the efficient conduct of litigation and practice of the Court (Azzure-Blacktown Pty Limited v Blacktown City Council [2009] NSWLEC 63 at [15]);

(g) the fact that there are issues that an applicant for joinder wishes to raise which the Council did not think sufficiently important does not automatically warrant an order for joinder under s 8.15(2) of the EPAA (Kavia Holdings Pty Ltd v Sydney City Council (2003) 127 LGERA 293; [2003] NSWLEC 195 at [36] and The Sabian Mandaen Association in Australia Ltd v Wollondilly Shire Council [2009] NSWLEC 94 at [14]);

(h) the Court retains a discretion as to whether or not an order for joinder should be made and would take into account matters such as:

(i) the delay in the application, the likely strength of the issues sought to be raised and any other issue of potential prejudice in the proceedings (Bongiorno Hawkins Frassetto at [6]); and

(ii) the nature of the issues which an applicant for joinder seeks to raise in the context of the overriding objective of the “just, quick and cheap” resolution of the proceedings: see s 56 of the Civil Procedure Act2005 (“the CPA”) (Azzure-Blacktown at [16] and Sabian at [14]).”

Denny Submissions

21. In his oral submissions, Mr Tomasetti relied primarily on the interests of justice/ public interest component of s 8.15(2)(b)(i) and (ii) of the EP&A Act. His submission was partly based on the fact that the proposed Tower will substantially impact the Denny Land, and the enjoyment Denny and his family have of it, [7] and because of the concern Denny has that the Council might not adequately address all issues that tend against the grant of development consent for the Tower, or that it might enter into a s 34 agreement with Optus with him being denied the opportunity of making representations and adducing evidence before the Court as to why consent should be refused.

    7. See also Le Breton Affidavit at [38]-[41].

22. This belief is at least in part because of the concern that Denny has that the Council has placed itself in what he says is a conflict of interest by having already entered into leases with Optus over the Site. Linked to all of this is the submission that the following issues set out in [13] of Denny’s Written Submissions (DWS) either will not be or will not be sufficiently addressed in the Appeal (s 8.15(2)(a)):

“There are reasons for refusal raised by the LPP not raised by the Council. Mr Denny says there are eleven other issues. They should each be raised in the public interest and they are:

i. Insufficient information required under the Biodiversity Conservation Act 2016 (BC Act) upon 5 faunal species with habitat on the site

ii. Potential and likely impact on fauna and flora from electromagnetic emissions.

iii. The impact of removing vegetation in non-rural areas pursuant to Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.

iv. The impact of likely levels of radio frequency emissions and maximum on human health. See the Radiation Protection Standard (RPS).

v. Failure to minimise disturbance and risk in accordance with Principle 4 contained within the NSW Telecommunications Facilities Guideline, Including Broadband (NSW Department of Planning and Environment, October 2022 (the 2022 Guidelines) pursuant to Section 2.143(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I).

vi. The potential short and long term impacts on nominated flora and fauna;

vii. The impacts of EME, and

viii. Aboriginal cultural heritage.

ix. Inadequate coverage.

x. The stated purpose of the DA is to provide better coverage to areas affected by poor service. The tower will provide no coverage to a substantial number of dwellings in Pretty Beach and Wagstaff.

xi. Impacts on Bouddi National Park – Bouddi National Park is less than 100m from the Site. There is no assessment of the impact on the values of the Bouddi National Park in the DA nor is there any consideration of the Bouddi National Park Plan of Management or the Bouddi National Park Planning Considerations.” [8]

8. Denny’s Written Submissions (DWS) at [13].

23. These issues are a slight expansion on the contents of [37] of the Le Breton Affidavit, where nine contentions are set out said to justify the refusal of consent.

Optus Submissions

24. Mr Eastman submitted that the Court could not draw any inference that the Council would not properly address the merits of the DA and the Appeal simply because it had entered into lease agreements with Optus. I accept that no finding quite as blunt as that should be made. He pointed to the “No Fetter” term of the lease in relation to the Council exercising any of its statutory powers and discretions, [9] while I note that Optus may terminate the leases on 28 days’ notice in the event that development consent is not granted. [10] In respect to Denny’s submission concerning whether there are issues that should be considered in the Appeal but will not likely be sufficiently addressed, [5] of Optus’ Written Submissions (OWS) (and also [19] of the Zykov Affidavit) contains a table addressing each of the proposed contentions referred to above (and some additional ones) with an indication as to why the Court would be satisfied that the proposed contentions either should not be addressed as part of the Appeal proceedings, or would likely be sufficiently addressed because:

    9. Exhibit B, cl 17.

    10. Exhibit B, cl 10.1(c).

1. the particular contention is already covered by the Respondent’s SOFAC;

2. substantial submissions have already been made on this issue and must be considered as part of the DA process;

3. the issue has been considered as part of the DA process including by the provision of various expert reports; and

4. the issue is not relevant.

Resolution

Section 8.15(2)(a)

25. I will first deal with the submission that there are issues that should be considered in the Appeal proceedings but are not likely to be sufficiently addressed unless Denny is joined to the proceedings.

26. First, in relation to the asserted “biodiversity impacts”, [11] Contention 1 in Part B(c) of the Council’s SOFAC states that development consent should be refused because the DA “is not supported by sufficient information to determine the likely impacts of the proposal” and in particular:

“f. The following revised ecology information is required, to allow the consent authority to understand the actual and likely ecological impacts and if all reasonable measures to avoid and minimise impacts have occurred. Once received further contentions may be identified.

i. Consideration of the type of fauna utilising hollow-bearing trees within and immediately adjacent to the site. Surveys in accordance with Council’s Flora and Fauna Survey Guidelines are required, including motion activated cameras and ultrasonic bat detection. These surveys are required to inform the 5-part tests of significance which currently do not properly consider if breeding habitat for threatened fauna is being impacted.

ii. Updated field surveys that are less than five years old. The current surveys were completed in November 2018 and November 2019 and may no longer reflect the current site conditions.

iii. Updated Bionet searches considering contemporaneous records within 5 km of the site.

iv. Updated documents to ensure consistency among the ecological assessment, arboricultural impact assessment and landscape plan in terms of tree retention, removal and replanting. Consideration of if the proposed planting will meet the requirements of an Inner Protections Area (IPA) is also required.

v. Inclusion of performance targets for future growth of replanted vegetation for no less than five years, including identifying number of plants and pot sizes.” [12]

11. Exhibit A, Tab 6, p 22 at [9].

12. Council’s SOFAC, pp 21-22.

27. Further, various flora and fauna assessment reports were prepared as part of the DA process. [13]

    13. See [1.7(b)-(e)] of the Council’s SOFAC.

28. While some of these biodiversity issues fall within the range of matters Optus says it will provide further information on “prior to and during the s 34 Conference (as may become relevant)”, [14] I am not persuaded that these issues are not likely to be sufficiently addressed in the Appeal proceedings. They are raised in the Council’s SOFAC. My view about this is reinforced by the fact that Denny has made detailed submissions about this topic generally (and about other asserted reasons for refusal) to the Council both himself, and through his solicitors. [15]

    14. Zykov Affidavit at [13].

    15. Exhibit A at Tabs 2 and 3.

29. Secondly, as to the potential impacts of EME, [16] there was no resistance by Denny to the submission made by Optus that “the Applicant [Optus] has provided the Respondent [the Council] with extensive material concerning EME impacts of the proposal”. [17] I note that this material would include various reports relating to EME described at [1.7(j) and (m)] of the Council’s SOFAC. Denny has also supplied the Council with a report in relation to EME, although this was not expressly referred to in submissions. [18]

    16. DWS at [13(ii), (iv), (vii)]; Exhibit A, Tab 6, p 10 at [i].

    17. Optus’ Written Submissions (OWS) at [5(1)].

    18. Exhibit A at Tab 2.

30. There is no doubt there has been expert evidence about EME through the DA process, and it is a matter that the Council (and the Court hearing the Appeal) is bound to consider by reason of cl 2.143(2) of the Transport and Infrastructure SEPP, and the NSW Telecommunication Facilities Guidelines.

31. Thirdly, as to Aboriginal cultural heritage, the Council’s SOFAC provides that this is a ground for refusal. Although the refusal is expressed to be based on the assertion that “the Archaeological Peer Review does not comply with the Aboriginal due diligence assessment requirements of Part 3.6.1.4 and Part 3.6.2.2(a)(i)” of the CCDCP, the particulars also provide that “insufficient site-specific information has been provided to identify whether or not Aboriginal objects are, or are likely to be, present at the subject site”. I am not convinced that Aboriginal cultural heritage will not be sufficiently addressed in the Appeal proceedings.

32. As to “inadequate coverage”, [19] on the material before me I do not conclude that this is an issue that should be considered in the Appeal.

    19. DWS at [13(ix) and (x)].

33. There are a few issues raised in the Le Breton Affidavit (impacts on property value; impact on public bushland; arboricultural impacts, and “bushfire”) [20] that were not included in [13] of the DWS, and were only faintly pressed in oral submissions. As to arboricultural impacts, I firstly note the issue raised in Contention B(c) paragraph [1(f)(iv)] in the Council’s SOFAC, and that in the DA process a number of flora and fauna reports were provided by Optus to the Council, as well as a Tree Retention and Landscape Plan. [21] This has also been the subject of submissions made by Denny to the Council.

    20. See Le Breton Affidavit at [37(a)-(h)].

    21. See Council's SOFAC at [1.7(g)].

34. The site is not “public bushland” in my view, because it is not land “that is owned, managed or reserved for open space or environmental conservation by the Council” within the meaning of cl 5.23(9)(b) of the CCLEP.

35. As to the issue of “impact on property values”, Mr Tomasetti conceded in oral address that this was not a relevant issue. [22]

    22. T5.17-19.

36. As to “bushfire”, it is an issue that was before the Council as the consent authority by means of an expert report, and submissions by Denny. [23]

    23. See also s 4.14 of the Environmental Planning and Assessment Act 1979 (NSW).

37. If there was nothing more of relevance to this motion, I would not be persuaded that there is an issue that should be raised in the Appeal proceedings that would not likely be sufficiently addressed in that Appeal. Nevertheless, it can be stated now that there are significant and complex issues relating to whether development consent should be granted or refused in relation to Optus’ proposed Tower. That much is clear from the Council’s Contentions in the SOFAC in which it is pleaded that consent should be refused because of adverse visual impacts on the Denny Land, the nearby residences, and the locality generally. [24] In addition, it is said that consent should be refused on Aboriginal heritage grounds as referred to above. It is then stated that the DA should be refused because of an insufficiency in a wide range of information relating to the precise location of the proposed development; the landscaping plan; consideration of alternate design solutions; and various ecological issues relating to both flora and fauna. [25]

    24. See contention B(a) [1(a)-(e)] of the Council’s SOFAC.

    25. See Part B(c)(1) of the Council’s SOFAC.

38. These issues are significant, and are relevant to my consideration to s 8.15(2)(b)(i) and (ii) as to whether joinder should be granted in the interests of justice or in the public interest.

Section 8.15(2)(b): Interests of Justice and the Public Interest

39. There was some suggestion in the submissions made by Mr Tomasetti that Denny would be deprived of an aspect of procedural fairness because the Council and Optus may reach agreement at the s 34 Conference, and thereby leave the Court with the task of only determining if that agreement reflects a decision that the Court could have made in the proper exercise of its functions, which if answered in the affirmative binds the Court to disposing of the Appeal in accordance with the agreement: s 34(3) of the Land and Environment Court Act 1979 (NSW); AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112; Wheeldon v Woollahra Municipal Council [2025] NSWLEC 55.

40. This might be the case, but it is not on its own a proper ground for joinder.

41. Ordinarily, if a Court is not persuaded that all issues that should be considered on an appeal such as this will not likely be adequately addressed, it is unlikely that the Court would find it is somehow in the public interest or in the interests of justice for an order for joinder to be made: see Morrison Design Partnership Pty Ltd v North Sydney Council and Director General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 per Preston CJ of LEC, particularly at [48] to [60].

42. However, there are additional circumstances relevant to this Appeal. The Respondent to the Appeal, which is the consent authority, has entered into a commercial agreement with the Applicant for development consent over the very Site the subject of the DA. Rental for the Site is not a vast sum (approximately $35,000 per annum rising to approximately $45,000 per annum), but it is not trivial either, and the lease terms extend until the end of 2041. It is in the Council’s commercial interest that development consent be approved. In saying this, I do not and cannot find that the Council will not approach the Appeal proceedings in a proper way, or act without integrity.

43. The mere fact of the lease agreements between the Council and Optus over the Site, if considered in isolation, would not cause me to take the view that Denny should, only because of this, be joined to the Appeal. However, the lease agreements should be considered in the context of a DA involving numerous and complex issues ranging from biodiversity through to significant visual impacts and Aboriginal cultural heritage, which may be complemented by the individual most affected by the outcome and who proposes to actively address these issues.

44. It is not lost on me that Denny has had opportunities through the submission process to raise with the Council the various issues he says warrant a refusal of the DA. Nor do I think it likely that the Court would be completely deprived of meaningful assistance on the relevant issues if Denny were not joined. Further, I am conscious of the warnings given by Judges of this Court concerning the undesirability of both a multiplicity of parties, and a multiplicity of experts: see Jon Garling v Northern Beaches Council [2022] NSWLEC 102 (and the various authorities referred to therein) at [47], referred to above at [20].

45. However, whatever range of concepts might be caught within the meaning of the phrase “the interests of justice” in s 8.15(2)(b)(i), in my view it includes notions of fairness, impartiality and integrity. While I do not find that the Council as consent authority will not act appropriately in the Appeal proceedings, the fact is that it is the Respondent consent authority in the Appeal, and it has entered into a commercial arrangement with the Applicant to the DA over the Site where that Applicant proposes to carry out development.

46. It is this combination of factors – the existence of the lease agreement between the Council and Optus over the Site; and the complex and numerous issues said to warrant refusal of consent – that have caused me to form the opinion that it is in the interests of justice to grant leave to the Joinder Applicant (who is likely to be the most affected person by a grant of consent) to be joined to the Appeal proceedings.

47. As for the “public interest”, this is said to be (admittedly in a slightly different context) a “very broad”, “nebulous” and “multi-faceted” concept: 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 (Caroona Coal) at [21] per Preston CJ. There is undoubtedly a public interest in “environmental protection” as there is in “economic development”: Caroona Coal at [22]. In my view, given the circumstances outlined above concerning the leases, coupled with the serious issues and grounds for refusal of consent raised by Denny, and by the Council in its Contentions in its SOFAC, it is also in the public interest that Denny join the Council as a Respondent in this Appeal.

48. In conclusion then, when the existence of the leases is considered in the additional context of the serious and complex issues outlined for refusal in the Council’s SOFAC and proposed by Denny, it is in my view both in the public interest and the interests of justice that there be a contradictor to the Appeal who does not have a commercial relationship with the Applicant for development consent relating to the Site for that proposed development. That contradictor is Denny. I therefore order that Denny be joined to the proceedings. The question of costs can be reserved for the final hearing.

Orders

49. The Court orders that:

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.

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Endnotes

Decision last updated: 09 July 2025