Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27

Denny v Optus Mobile Pty Ltd [2023] NSWLEC 27

The Panel failed to form the necessary legal satisfaction required under cl 4.6 of the Gosford LEP regarding height of buildings, due to legal errors in construction and application of the standard; and failed to form an opinion regarding bushfire protection as required by s 4.14 EPA Act. Both failures constitute jurisdictional errors invalidating the development consent.

Parties
First Applicant: Anthony Denny; Second Applicant: Helena Denny; First Respondent: Optus Mobile Pty Ltd; Second Respondent: Central Coast Local Planning Panel; Third Respondent: Central Coast Council
Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Judicial Review / Final Judgment
Outcome
Development consent declared invalid and restrained; costs reserved.
Legal Topics
Judicial Review, Development Consent, Height of Buildings Standard, Bushfire Prone Land, Gosford LEP Clause 4.6
Administrative Law Environmental Law Planning Law Judicial Review Development Consent Height of Buildings Standard Bushfire Prone Land Gosford LEP Clause 4.6

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 11 Party arguments 2 Amounts and remedies 5
Sign in to unlock

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

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether Central Coast Local Planning Panel validly granted development consent under DA/57736/2019 contrary to height of buildings development standard in cl 4.3 of Gosford Local Environment Plan 2014
  2. 2 Whether the Panel formed required opinion as to bushfire protection under section 4.14 of Environmental Planning and Assessment Act 1979

Ratio Decidendi

The Panel failed to form the necessary legal satisfaction required under cl 4.6 of the Gosford LEP regarding height of buildings, due to legal errors in construction and application of the standard; and failed to form an opinion regarding bushfire protection as required by s 4.14 EPA Act. Both failures constitute jurisdictional errors invalidating the development consent.

Court Disposition

Development consent declared invalid and restrained; costs reserved.

Orders

  • Declaration that development consent DA/57736/2019 for the construction of a telecommunications facility on Lot 1 DP 616676, 37 Wards Hill Road, Killcare Heights NSW is invalid and of no effect.
  • Order restraining the First Respondent from taking any step in reliance upon or acting upon DA/57736/2019.