Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27

Land and Environment Court New South Wales

Medium Neutral Citation: Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27 Hearing dates: 16 March 2023 Date of orders: 16 March 2023 Decision date: 16 March 2023 Jurisdiction: Class 4 Before: Pain J Decision: The Court orders: (1) A declaration that development consent DA/57736/2019 for the construction of a telecommunications facility on land legally described as Lot 1 in Deposited Plan 616676 also known as 37 Wards Hill Road, Killcare Heights NSW is invalid and of no effect. (2) An order that the First Respondent, by itself, its servants and agents, be restrained from taking any step in reliance upon or otherwise acting upon DA/57736/2019. (3) Costs reserved. Catchwords: JUDICIAL REVIEW – challenge to approval of telecommunications tower – failure of consent authority to be satisfied of matters required under cl 4.6 of Gosford Local Environment Plan 2014 in considering application to vary cl 4.5 height of building development standard Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 2.17, 4.14, 20 Gosford Local Environment Plan 2014, cll 4.3, 4.6 Land and Environment Court Act 1979 (NSW), ss 25B, 25E Cases Cited: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 Elimatta Pty v Read and Anor [2021] NSWLEC 75 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256 IOF Custodian Pty Ltd (atf the 105 Miller Street North Sydney Trust) v Special Minister of State [2022] NSWLEC 86 Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2018) 235 LGERA 176; [2018] NSWCA 304 RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment 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. Lazarus SC with J. McKelvey (First and Second Applicants)