Invalid consent – Denny v Optus Mobile

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Invalid consent – Denny v Optus Mobile

By Alyce Kliese and Gabriella Hijazi

In the matter of Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27, the Applicants commenced judicial review proceedings in the Land and Environment Court of NSW challenging the validity of a development consent that the Central Coast Planning Panel (the Planning Panel) granted Optus Mobile Pty Ltd (Optus Mobile) for the construction of a telecommunications facility on land owned by Central Coast Council (Council). We note that all three respondents (the Planning Panel, Optus Mobile and Council) filed “submitting appearances”, meaning that the respondents did not actively take part in defending their position and did not put forward any submissions.

Background

By way of background:

  1. the land the subject of the relevant development application which comprises Lot 1 DP 616676, known as 37 Wards Hill Road, Killcare Heights NSW (Site), is owned by Council.
  2. the Site is zoned E4 Environmental Living under the Gosford Local Environment Plan 2014 (GLEP).
  3. the maximum building height for the site is 8.5 meters pursuant to clause 4.3 of GLEP and the height of buildings map.
  4. the Site is identified as bushfire prone land.
  5. on 17 December 2019, Optus Mobile lodged a development application DA/57736/2019 (the DA) with Council, for a 33 metre monopole telecommunications tower and communications equipment shelter for ancillary infrastructure, an access road track and the removal of 33 trees.
  6. Under the GLEP, development consent may not be granted for development that contravenes a development standard except in accordance with clause 4.6 of GLEP. The proposal lodged by Optus Mobile contravenes the height of buildings development standard in clause 4.3 by 24.5 metres or 288%.
  7. The DA was accompanied by a clause 4.6 request to vary the height of building development standard, which was amended during the assessment of the DA.
  8. On 15 November 2021, the Panel held an extraordinary panel meeting. The Panel considered the DA and determined to grant the consent.

Denny appealed the Planning Panel’s decision to grant development consent on the following two grounds:

  1. there was jurisdictional error because, as a decision-maker, the Planning Panel did not form a required state of satisfaction in approving the development. The Applicants submitted that the Planning Panel did not provide valid reasons for granting consent, as it was required to do by Schedule 1, clause 20 of the Environmental Planning and Assessment Act 1979 (EPA Act).
  2. the Planning Panel failed to form the requisite opinion pursuant to section 4.14 of the EPA Act, with respect to consideration of certain bushfire prone land.

The Court upheld the Applicants’ claims and ordered that:

  1. a declaration that development consent for the construction of a telecommunications facility on the Site is invalid and of no effect.
  2. Optus Mobile be restrained from taking any step in reliance upon or otherwise acting upon the DA.

The Court’s reasons are set out below.

Ground 1 – sufficient reasons for the decision

The Applicants submitted that the Planning Panel did not provide sufficient reasons for its decision, as it is required to do pursuant to Schedule 1 clause 20 of the EPA Act.

The only document produced by the Panel that satisfies the description of reasons is the minutes of the Planning Panel meeting held on 15 November 2021 (the Minutes). The Minutes records three opinions expressed in the context of clause 4.6 considering the development standard in clause 4.3 for building height. The three opinions are extracted below.

The Panel formed opinions of satisfaction that:

  • “the cl 4.6 request demonstrates that compliance with the height of buildings development standard is unreasonable and unnecessary in the circumstances: unnecessary because of the minimal environmental impact that would result from noncompliance with the height standard, and unreasonable because compliance with that standard would not allow the proposed telecommunications tower to operate effectively” (First Opinion);
  • “there are sufficient environmental planning grounds to justify contravening the development standard, said to comprise the “demonstrated need for this infrastructure in the location and the broader public interest and benefit” (Second Opinion); and
  • “the proposed development will be in the public interest because it is consistent with the “relevant” objectives of the zone and the “relevant” objectives of the height of buildings development standard” (Third Opinion).

The Court found that the formation of all three opinions were legally flawed for the following reasons:

  1. The First Opinion concerns the clause 4.6(3)(a) requirement that the consent authority be satisfied that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances. The Planning Panel was invited to consider the various tests in the cases of Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) and Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256 at [17]-[21]. Applying the second of the Wehbe tests, the clause 4.6 request contended that the underlying purpose of the height standard was not relevant to the development on the basis that clause 4.3 was only intended to apply to ‘standard’ or ‘traditional’ buildings, not infrastructure such as the telecommunications tower. Therefore, that conclusion was found to be erroneous.
  2. the Planning Panel decision does not refer to the objectives of the height standard in clause 4.3 of the GLEP in addressing whether those objectives have been achieved notwithstanding non-compliance with the standard.
  3. the Planning Panel did not engage with the Wehbe test in the clause 4.6 application and adopted its own bespoke legal standard. This constitutes a legal error of the Panel. The Panel is not permitted to depart from the terms of clause 4.6 and apply its own test.
  4. in relation to the Second Opinion, the Planning Panel’s language does not accord with the statutory language required by clause 4.6(4)(a)(i). That is to say, the Panel was required to form an opinion of satisfaction that there were sufficient environmental planning grounds to justify contravening the development standard. However, the Panel instead “agreed” that there were sufficient environmental planning grounds to justify contravention of the standard.
  5. in relation to the Third Opinion, clause 4.6(4)(a)(ii) required the Panel to look at all the objectives of the height of buildings development standard and all the objectives of the E4 Environmental Living Zone in order to reach the necessary satisfaction. However, the Planning Panel referred to relevant objectives which were not identified.

Ground 2 – jurisdictional error 

The Applicants submitted that subsections 4.14(1) or (1A) of the EPA Act require Council or the Planning Panel to reach a particular state of satisfaction in relation to the conformity (or otherwise) of the proposed development with a policy document named ‘Planning for Bushfire Protection’.

The Court found that:

  1. the council DA Report did not identify section 4.14 of the EPA Act.
  2. other than the referral of a report to the Rural Fire Service (RFS) and the provision of conditions of consent provided by the RFS, there was no material before the Planning Panel which directed it to the state of satisfaction it was required to reach under section 4.14 of the EPA Act.
  3. there was no mention of bushfire or section 4.14 in the Planning Panel’s reasons.

Given the above, the Court considered that it is reasonable to draw the inference that the Planning Panel did not reach the necessary state of satisfaction required by subsections 4.14(1) or (1A) of the EPA Act. Given the terms of section 4.14, failure to do so is a jurisdictional error as reaching that state of satisfaction was required before development consent could be validly granted.