Denny v Optus Mobile Pty Ltd

Denny v Optus Mobile Pty Ltd - [2023] NSWLEC 27 - NSWLEC 2023 case summary — Zoe

[5]

GLEP

Clauses 4.3 and 4.6 of GLEP states: Part 4 Principal development standards … 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to establish maximum height limits for buildings, (b) to permit building heights that encourage high quality urban form, (c) to ensure that buildings and public areas continue to receive satisfactory exposure to sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity, (e) to ensure that taller buildings are located appropriately in relation to view corridors and view impacts and in a manner that is complementary to the natural topography of the area, (f) to protect public open space from excessive overshadowing and to allow views to identify natural topographical features. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. … 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating - (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless - (a) the consent authority is satisfied that - (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. …
The Site is zoned E4 Environmental Living under the GLEP. The objectives of the E4 zone state: Part 2 Permitted or prohibited development … Land Use Table … Zone E4 Environmental Living 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 promote ecologically, socially and economically sustainable development and the need for, and value of, biodiversity in Gosford. • To provide land for low-impact tourist-related development that is of a scale that is compatible with the special ecological, scientific or aesthetic values of the area. • To ensure that development is compatible with the desired future character of the zone. …

[8]

Final cl 4.6 application

The relevant sections of the final cl 4.6 application in Tab 5 in Ex A state: A Clause 4.6 variation request must adequately demonstrate each of the required outcomes of Clause 4.6(3) which are that: • compliance with the development standard is unreasonable or unnecessary in the circumstances of the development; and • there are sufficient environmental planning grounds to justify contravening the development standard. This variation request has carefully considered each of these matters and how the proposed development relates to them. It will demonstrate how compliance with each of the above two matters has been achieved. As per both of the above cited cases, the above matters will not be "adequately" addressed unless the non-conformity is justified. This variation request will provide justification for this non-conformity on the basis that the functional use of the proposed essential infrastructure, requires the antennas to be elevated over the Carriers' network coverage areas. Compliance with the development standard is unreasonable or unnecessary in the circumstances of the development. Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) is widely cited throughout considerable Clause 4.6 Variation case law. This case established five potential ways to determine whether a development standard could be considered to be unreasonable or unnecessary. Compliance with the standard can be considered as unreasonable or unnecessary provided it is outlined how the request falls within one of the five justifications raised. 1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard; or 2. the underlying objective or purpose of the standard is not relevant to the development; or 3. the underlying objective or purpose would be defeated or thwarted if compliance was required; or 4. the standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard; or 5. the zoning of land was unreasonable or inappropriate, such that the standards for that zoning are also unreasonable or unnecessary. Wehbe was a decision of the Court dealing with SEPP 1, however it has been also found to be applicable in the consideration and assessment of Clause 4.6. The proposed development is considered to fall within justifications 1 and 2 as demonstrated below. There is also reference to justification 4. This variation request will address justification two first, being that the underlying purpose of the standard is not relevant to the development. The intent of the Height of Building Standard is to limit undesirable impacts from matters such as bulk and scale, overshadowing, solar access and visual dominance. Clause 4.3 is a generic provision and could not possibly anticipate every type of development likely to be proposed. It was not intended to limit infrastructure heights but rather limit the height of standard buildings. Infrastructure such as telecommunications facilities, power poles and masts have far less impact when they breach the Height of Building standard than that of a more traditional building such as a dwelling, office or retail building. The most important consideration of this height provision is what the impact will be. The impact of breaching this height restriction is different depending on the type of development - an office building would have a vastly greater impact on the skyline than that of a monopole of the same height. Whilst it is acknowledged that a large office building of the same height would considerably impact the character of the area and potentially lead to further noncompliant development, the same could not be said for a telecommunications facility. It is for these reasons that we understand that the purpose of this standard is not intended to constrain utility infrastructure development. In accordance with Section 4.3 of the GLEP, the objectives of the Height of Buildings Development Standard are: (a) to establish maximum height limits for buildings, (b) to permit building heights that encourage high quality urban form, (c) to ensure that buildings and public areas continue to receive satisfactory exposure to sky and sunlight, (d) to nominate heights that will provide an appropriate transition in built form and land use intensity, (e) to ensure that taller buildings are located appropriately in relation to view corridors and view impacts and in a manner that is complementary to the natural topography of the area, (f) to protect public open space from excessive overshadowing and to allow views to identify natural topographical features. … There are sufficient environmental planning grounds to justify contravening the development standard. The environmental planning grounds which justify contravening this development standard are: • The proposal is generally in accordance with the objectives of the E4 Environmental Living Zone. • The proposal is in the public interest. • There is a demonstrated need for this infrastructure in the area. • The proposal is in accordance with the objectives of the Gosford Local Environmental Plan 2014 and State Environmental Planning Policy (Infrastructure) 2007 and other State and Federal Legislation, that allow development for the purposes of telecommunications facilities on any land, with consent (refer to Statement of Environmental Effects). • The environmental impact assessment undertaken pursuant to Section 4.15 of the EPA Act 1979 has determined that the proposal would not cause any significant environmental impact and would have minimal impact upon the amenity of the area (refer to Statement of Environmental Effects). The subject site is zoned E4-Environmental Living. The objectives of the E4 Environmental Living zone as well as an assessment of the proposal against each objective are listed below. The proposed facility is not expected to undermine the character or the objectives of zone. …

[10]

Minutes of Panel meeting held on 15 November 2021

The Panel minutes of 15 November 2021 Tab 5 of Ex A state: Central Coast Local Planning Panel Minutes of the Supplementary Local Planning Panel Held Remotely - Online on 15 November 2021 … 2.1 Supplementary Report - DA/57736/2019 - 37 Wards Hill Road, Killcare Heights - Telecommunications Tower - Agenda Item 3.1 Local Planning meeting 19 August 2021 Relevant Considerations: As per Council assessment report and supplementary report Material Considered: • Documentation with application • Council assessment and supplementary assessment report • Submissions and representations made in public meetings Council Recommendation: Approval Panel Decision: 1. The Panel accepts Council's advice on the composition of the Panel considering and determining the application. 2. The Panel agrees that the applicant's clause 4.6 written request demonstrates that compliance with the development standard is unnecessary in the circumstances of the case because of the minimal environmental impact that would result from the non-compliance with the Height of Buildings standard and compliance would be unreasonable in the circumstances of the case because compliance with the Height of Buildings standard would not allow the proposed telecommunications tower to operate effectively. [First opinion]This would not be in the public interest. The Panel agrees that the demonstrated need for this infrastructure in the location and the broader public interest and benefit are sufficient environmental planning grounds to justify contravening the development standard.[Second opinion] Further, the Panel considers that the proposed development will be in the public interest because it is consistent with the relevant objectives of the Height of Buildings development standard and the relevant objectives for development within the E4 Environmental Living zone in which the development is proposed to be carried out. [Third opinion] 3. That the Local Planning Panel grant consent to DA57736/2019 for a telecommunications facility on Lot:1 DP:616676, 37 Wards Hill Road Killcare Heights, subject to the conditions detailed in the schedule attached to the supplementary report and having regard to the matters for consideration detailed in Section 4.15 of the Environmental Planning and Assessment Act. 4. That Council advise those who made written submissions of the Panel's decision. 5. That the Council advise relevant external authorities of the Panel's decision. Reasons: 1. The Panel noted that the matters raised in the Minutes of its meeting of 19 August 2021 had been addressed satisfactorily, including consultation with Darkinjung Local Aboriginal Land Council (DLALC) and the submission of a revised cl. 4.6 request. 2. It is in the public interest to grant consent because of the service the telecommunications tower will provide to the community on a daily basis and in times of emergency.: 3. Any environmental impact of the proposal is not unreasonable and is mitigated by choice and colour of materials, vegetation and design. Votes: The decision was unanimous

[11]

Ground 1 cl 4.6

The Applicants submitted that under Sched 1 cl 20 of the EPA Act reasons are required to be given by the Panel. The only document produced by the Panel that satisfies the description of reasons is the minutes of the Panel meeting held on 15 November 2021. Paragraph 2 under Panel Decision records three opinions expressed in the context of cl 4.6 considering the development standard in cl 4.3 building height.
The Panel formed opinions of satisfaction that: 1. 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); 2. 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 3. 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 formation of all three opinions was legally flawed.
The First opinion concerns cl 4.6(3)(a) the requirement being that the consent authority in fact be satisfied that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances invites attention to the Panel's consideration of the various tests in Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) and Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256 at [17]-[21]. The cl 4.6 request relied on the first and second of the Wehbe tests, namely a) the objectives of the development standard are achieved notwithstanding non-compliance with the standard, and b) the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.
Applying the second of the Wehbe tests the cl 4.6 request contended that the underlying purpose of the height standard was not relevant to the development on the basis that cl 4.3 was only intended to apply to 'standard' or 'traditional' buildings, not infrastructure such as the telecommunications tower. That conclusion is erroneous given the definition of building in the EPA Act which includes structures. The consideration of cl 4.6(3)(a) opinion of the Panel required is therefore also infected by legal error in its entirety given this incorrect consideration of the application of cl 4.3. Clause 4.6(3) requires that the Panel consider a written request from the First Respondent that seek to justify the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The submission in the cl 4.6 application was legally erroneous and the Panel's opinion required under cl 4.6(3)(a) was therefore legally erroneous.
The cl 4.6 application also addresses the objectives of the height standard in cl 4.3 GLEP addressing whether those objectives have been achieved notwithstanding non-compliance with the standard. The Panel decision does not refer to this material. The Panel did not engage with the Wehbe test in the cl 4.6 application and adopted its own bespoke legal standard being reference to general absence of impacts and necessity regarding the operation of the telecommunications facility constitutes legal error of the Panel. The Panel is not permitted to depart from the terms of cl 4.6 and apply its own test.
In relation to the second opinion, the Panel's language does not accord with the statutory language required by cl 4.6(4)(a)(i). The Panel was required to form an opinion of satisfaction that there were sufficient environmental planning grounds to justify contravening the development standard. The Panel agrees that there are sufficient environmental planning grounds to justify contravention of the standard.
In relation to the third opinion, cl 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. The Panel refers to relevant objectives which are not identified. This language does not reflect the test under cl 4.6(4)(a)(ii) suggesting the necessary satisfaction could not have been reached in compliance with cl 4.6.
Further, and as already identified above the Panel can be inferred to have misconstrued the application of cl 4.3 of the building height development standard as the cl 4.6 application was legally incorrect in considering cl 4.6(4)(a)(ii) so that the Panel could not have formed an opinion consistent with law. Where the existence of a particular opinion is made a condition of the exercise of a power, legislation conferring the power is treated as referring to an opinion that can be formed by a reasonable decision-maker that correctly understands the meaning of the law under which the decision-maker acts. If the opinion actually formed is not an opinion of this character then the necessary opinion does not exist, see Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 at [154].

[12]

Ground 1 consideration of opinions 1 and 3

The Applicants accept that they bear the onus of proof of establishing jurisdictional error. In this case the Applicants have the onus of proving the absence of the required state of satisfaction was formed by the Panel. An applicant in judicial review proceedings asserting that a decision-maker did not form a required state of satisfaction must establish that absence of the necessary mental state on the balance of probabilities per Caroona Coal Action Group Inc v Coalmines Australia Pty Ltd (2010) 172 LGERA 35; [2010] ALMD 3485; [2010] NSWLEC 1 affirmed in the Court of Appeal per Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Anor (2010) 178 LGERA 411; [2010] NSWCA 353.
All parts of cl 4.6 where they apply must be satisfied so that the clause operates cumulatively. A failure in relation to one sub-clause means that the clause has not been correctly applied by a consent authority. As the considerations the clause requires are accepted to be jurisdictional in relation to forming of an opinion or state of satisfaction (Elimatta Pty v Read and Anor [2021] NSWLEC 75) that failure will invalidate an approval which was purportedly made in reliance on cl 4.6. It is unnecessary to determine all of the Applicants' arguments in order to make a finding of invalidity in relation to cl 4.6 because of its cumulative operation.
The record of documents before the Panel is contained in the documents produced on subpoena as issued by Ms Mezinec, all of which are contained in Ex A at Tabs 9-14. A response to a subpoena to produce documents is sufficient to discharge an applicant's onus of establishing which documents were before the decision-maker and relied upon in making the decision: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2018) 235 LGERA 176; [2018] NSWCA 304 at [122].
Where a formal statement of reasons has been issued by a decision-maker in accordance with a statutory obligation to provide reasons as in this case as regulated by Sched 1 cl 20 of the EPA Act, a failure to include a reference to a matter in a statement of reasons may justify the inference that, as a matter of fact, the matter was not taken into account or the requisite opinion formed and it can be accepted as evidence that no finding, evidence or reason that was of significance to the decision has been omitted from the document, see Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 at [46] cited in IOF Custodian Pty Ltd (atf the 105 Miller Street North Sydney Trust) v Special Minister of State [2022] NSWLEC 86 at [68]-[70].
As the Applicants submitted, the Court of Appeal in RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 at [1], [4], [51] has held that in order to discharge the obligation in cl 4.6(4)(a) to be satisfied that an applicant's written request has 'adequately addressed' the matters required to be demonstrated by cl 4.6(3), the consent authority needs to be satisfied that those matters in cl 4.6(3) have 'in fact' been demonstrated. Effectively the consent authority needs to form the opinion itself that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and there are sufficient environmental planning grounds to justify the development standard. The requisite opinions must be formed by reference to the contents of the cl 4.6 request.
Three opinions are focussed on by the Applicants reflecting the Panel's presumed reasons, concerning cl 4.6(3)(a), cl 4.6(3)(b) and cl 4.6(4)(a)(ii). I will focus on Opinions 1 and 3. It is unnecessary to consider Opinion 2.
The final cl 4.6 application extracted above contains a fundamental legal error concerning the application of the cl 4.3 Height of buildings development standard in the GLEP, namely that it does not apply to the telecommunications tower the subject of the DA because that is not the type of building to which the clause is directed. Much of the assessment in the cl 4.6 application reflects this misunderstanding. That approach is legally incorrect given the definition of building under the EPA Act to include "…any structure or part of a structure…" which definition applies to the GLEP. As a result the Panel could not have formed the opinion required under cl 4.6(4)(a)(ii) in relation to cl 4.6(3)(a) concerning the adequacy of the written request of the Applicants that compliance with the development standard was unreasonable or unnecessary. This legal error infects Opinion 1 in paragraph 2 of the Panel's reasons for decision, as identified by the Applicants, summarised in [29] above.
The further arguments of the Applicants above in [30] identifying that the Panel applied its own bespoke legal standard not reflective of cl 4.6 and did not engage with the Wehbe test relied on in the cl 4.6 application are also accepted given the terms of the opinion expressed in the Panel's decision.
In relation to Opinion 3, which appears to be the Panel considering cl 4.6(4)(a)(ii) the same fundamental error affects that opinion, as identified by the Applicants in [33] above leading to the conclusion that the Panel could not have formed an opinion consistent with law. Further criticism of Opinion 3 of the Panel identified above in [32] is also accepted given the provisions of cl 4.6(4)(a)(ii) and the expression of the third opinion of the Panel.
These findings means that the Applicants have discharged their onus of establishing that the inference arises that the Panel did not form the necessary state of satisfaction required under cl 4.6 in light of the reasoning given for its decision to approve the First Respondent's DA.
The legally correct formation of that opinion was necessary in order for the application of cl 4.6 to be valid. Consequently the decision to approve the DA was invalid.
Ground 1 is upheld.

[13]

Ground 2 - Failure to form the requisite opinion pursuant to section 4.14 of the EPA Act

Section 4.14 of the EPA Act states: Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.14 Consultation and development consent - certain bush fire prone land (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority - (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. …
The Applicants submitted that ss 4.14(1) or (1A) require the consent authority to reach a particular state of satisfaction in relation to the conformity (or otherwise) of the proposed development with Planning for Bushfire Protection. The relevant version of that document for present purposes is the version published in 2006 (PBP 2006).
A subpoena was issued to the Panel for all documents considered and / or relied upon by it in determining the DA. Those documents are set out at par 18 of Ms Mezinec's affidavit. If the relevant state of satisfaction was in fact reached, it must have been formed by reference only to those documents, see above in [36] referring to Moorebank Recyclers Pty Ltd v Tanlane at [122].
The council officer's DA Report extracted above in [23] refers to the fact that the Applicants' bushfire report and subsequent addendums prepared by ECO Logical AU Pty Ltd were referred to the NSW Rural Fire Service (RFS) for comment under s 4.14 of the EPA Act. It then records that the RFS considered the information submitted and recommended conditions of consent. Neither the DA Report nor the meeting minutes of the Panel of 19 August 2021 or 15 November 2021 demonstrate the expression of a view as to the state of satisfaction by the Council or the Panel in relation to whether "the development conforms to the specifications and requirements" of PBP 2006. In fact, the Council did not bring s 4.14 to the Panel's attention and the minutes of the Panel meeting do not refer to bushfire or the relevant section of the Act.
In the absence of the necessary consideration as to whether "the development conforms to the specification and requirements", the Applicants say that the Panel could not have formed the necessary state of satisfaction.
In this case, as noted above, Council simply records a series of facts regarding the existence of a bushfire assessment, as well as the referral to and response of the RFS. The DA Report does not make any assessment or findings in relation to that assessment.
The Applicants contend that the inference should be drawn that neither Council nor the Panel turned its mind to the requirement that the Panel form a positive opinion regarding the development of bushfire prone land as required by s 4.14 of the EPA Act.
In the absence of the requisite opinion having been formed, development consent could not validly be granted to the development application.

[15]

Application of s 25B not warranted

The Court is required to consider the application of s 25B of the Land and Environment Court Act 1979 (NSW) (LEC Act) in these circumstances in light of s 25E. The decision to apply s 25B is discretionary. Section 25B of the LEC Act states: Part 3 Jurisdiction of the Court … Division 3 Orders of conditional validity for certain development consents … 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order - (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation) - (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. …
In the absence of a contradictor no party is seeking orders in reliance on s 25B. Where the making of a s 25B order requires a substantial part of the merits review process to be undertaken again as part of the future decision-making necessary such orders have been considered to be inappropriate. I have found there was an absence of power to grant the consent necessitating that the application essentially must be determined afresh if it is to be pursued by the First Respondent. The making of appropriate orders to suspend the operation of the consent and specifying terms which will validate the consent in these circumstances are not apparent. I will not make orders under s 25B of the LEC Act.
I will make the declaration sought in the summons and the consequential order given that the First Respondent has submitted and has not therefore suggested that such an order ought not be made.

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Cases Cited (13)

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