Optus Mobile Pty Ltd v Central Coast Council [2026] NSWLEC 1696 | Case summary | Zoe

NSWNSWLEC

Optus Mobile Pty Ltd v Central Coast Council

[2026] NSWLEC 1696

Land and Environment Court (NSW)|2026-10-15|Before: Porter C

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-10-15

Before

Porter C

Catchwords

DEVELOPMENT APPEAL — telecommunications tower — visual impacts — alternate sites — ecology — procedural fairness

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPEAL — telecommunications tower — visual impacts — alternate sites — ecology — procedural fairness

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Optus Mobile Pty Ltd v Central Coast Council [2026] NSWLEC 1696

Hearing dates: 8-12 December 2025 and 31 March 2026.
Submissions received 8 April 2026.

Date of orders: 15 October 2026

Decision date: 15 October 2026

Jurisdiction: Class 1

Before: Porter C

Decision: The Court orders:
(1) The applicant is to pay the first respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed or assessed. The Court notes that the applicant agrees to pay costs thrown away as agreed or assessed to the second respondent for the amended development application.
(2) The appeal is upheld.
(3) Development application DA/3623/2022, as amended, for construction of a telecommunications facility at 37 Wards Hill Road, Killcare Heights is granted development consent subject to the conditions at Annexure A.

Catchwords: DEVELOPMENT APPEAL — telecommunications tower — visual impacts — alternate sites — ecology — procedural fairness

Legislation Cited: Biodiversity Conservation Act 2016 (NSW), ss 6.4, 6.15, 7.2, 7.7, 7.13, 7.16
Conveyancing Act 1919 (NSW), s 88B
Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 4.17, 4.46, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 39
Local Government Act 1993 (NSW)
Rural Fires Act 1997 (NSW), s 100B
Biodiversity Conservation Regulation 2017 (NSW), s 6.6 Central Coast Local Environmental Plan 2022 Environmental Planning and Assessment Regulation 2021 (NSW), ss 34, 38 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.143

COMMISSIONER: Located in the scenic coastal area of Killcare Heights, this appeal is about the visual impacts of a telecommunications tower on adjoining neighbours, the public domain and district vistas.
The Applicant, Optus Mobile Pty Ltd (Optus) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of DA/3623/2022 by the First Respondent, Central Coast Council (Council). The DA seeks consent for a proposed mobile telecommunications facility at 37 Wards Hill Road, Killcare Heights. The DA was lodged on 1 May 2023 and refused by the Local Planning Panel on 5 September 2024. Optus filed the Class 1 application on 5 March 2025.
On 9 July 2025 the Second Respondent, Mr Anthony James Denny (Mr Denny) was joined as a party to the proceedings: Optus Mobile Pty Ltd v Central Coast Council [2025] NSWLEC 74.
In detail, the DA as described in the Statement of Environmental Effects prepared by Service Stream Limited dated 9 October 2025 (SEE) seeks development consent for installation of a new mobile telecommunications facility comprising:
A 30m monopole and 2.5m long turret mount (with an overall height of 32.5m).
Three Optus panel antennas attached to the turret at the top of the monopole to a height of 31m.
Fifteen Optus remote radio units attached to the monopole in the Optus aperture.
Three 5G Vodafone panel antennas attached to the monopole to a height of 28.6m.
Three 4G Vodafone panel antennas attached to the monopole to a height of 26.75m.
Nine Vodafone remote radio units attached to the monopole in the Vodafone aperture.
Three Telstra panel antennas attached to the monopole to a height of 20m.
Six tower mounted amplifiers and three remote radio units attached to the Telstra aperture.
Establishment of an Optus compound area (7m x 5.7m) containing an Optus and Vodafone shared, five bay, BAL-FZ fire rated outdoor unit (equipment shelter 3.8mL x 1.36mD x 2.25mH) which is to be enclosed by a security fence.
Installation of a Telstra BAL-FZ fire rated outdoor unit inside the Optus compound (measuring 3.3mL x 1.8mD x 2.5mH).
Installation of ancillary equipment including feeder cables, combiners, filters and GPS antennas.
Construction of an access track.
An asset protection zone (APZ) for bushfire protection.
The DA includes facilities for the three major telecommunications carriers being Optus, TPG Telecom / Vodafone Australia Pty Ltd (Vodafone) and Telstra.
The stated purpose described in the SEE is that Optus, Vodafone and Telstra have identified insufficient network coverage in the Killcare Heights, Killcare and Hardys Bay area. The proposed telecommunications facility will form part of the network to provide “mobile voice and data services to the area” (p 1, SEE).
During the hearing, leave was granted to amend the DA pursuant to s 39 of the L**and and Environment Court Act 1979 (NSW) and s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW). The amendments were more than minor. Documentation and plans relating to the site plans, arboricultural impacts, landscaping and ecology (including the Biodiversity Development Assessment Report (BDAR)) were amended to form part of the class 1 application.
With consideration of the evidence and submissions, I find that the amended DA has overcome the issues raised by the Respondents, will not adversely visually impact adjoining and nearby residents or significant landscaped areas in the region and development consent should be granted for the reasons set out below.

The revised plans are sufficient to undertake a visual impact assessment. The amended plans confirmed the level of the platform as 107.02m AHD and an amended landscape plan was provided. The landscaping and tree retention information coordinates with the bushfire protection measures and the required APZ.
Mr O’Grady and Mr Haack agreed that the proposed tower remains consistent with the tower shown in their photomontages / visual impacts assessments.
Views to/from Bouddi National Park are acceptable.
Indigenous cultural heritage is beyond the expertise of the experts and that there is no requirement to assess alternate sites for Indigenous heritage impacts. Mr O’Grady tested view lines west in the direction of Mount Yengo, for consideration of the Court.
Information has been provided in relation to the search area for the required coverage and capacity requirements.
An adequate number of alternative sites was provided (being six additional sites) and a visual impact assessment of the alternate candidate is not required.
Ms Englund, planning expert for Council, gave evidence that the visual impact of the proposed tower as viewed from Mr Denny’s property is not unreasonable. The tower will be visible from various locations, including the rear covered alfresco area, swimming pool, gym above the detached garage and throughout the grounds. The views from the rear alfresco area and swimming pool would be oblique views amongst canopy trees in the foreground. There is less mature planting that may grow to screen the proposed tower in the medium-long term.
Ms Englund’s evidence is that the siting of the proposed tower is reasonable in that the tower is setback from the boundaries, contains perimeter landscaping for screening, is sited with other infrastructure and that the height is a consequence of the tower’s purpose / function. The height above the canopy is required to achieve the appropriate range. The proposed tower does not result in any unreasonable impacts upon views from the Denny land and is appropriately screened. The primary views to the south remain entirely unimpeded.
Ms Englund’s evidence is that the tower will protrude above the tree line and will be seen from certain vantage points. This is largely due to the function of the proposed infrastructure and not uncommon in the Central Coast local government area, given the topography of the area.
In relation to the objectives of the C4 zone, Ms Englund says that the proposal is not antipathetic to the objectives of zone and potential impacts on the Denny land. The proposed tower will be screened by existing landscaping and will have a low impact. It was maintained that existing development in the street and along Stewart Street included powerlines.
Ms Englund agrees with Ms Brandwood in that a suitable selection of sites has been considered. A visual impacts assessment for alternate locations is only required for feasible locations. The feasibility of alternate locations is beyond a town planner’s expertise.
Ms Englund’s evidence about the visual impacts from Stewart Street is that there is sufficient spatial separation between the tower and the street. The proposed tower will be seen in a wider view including existing development and infrastructure, is located within a landscaped setting and cannot be lowered in height in order to fulfil its function.
Ms Englund’s evidence about district views is that the proposed tower will be visible from the waterway and foreshores, including Hardys Bay and Ettalong. With consideration of all the photomontages, the visual impact of the proposed tower will not be unacceptable as the tower, visible along the ridgeline, will not be readily apparent from a distance. Existing development can be seen in the ridgeline including houses and powerlines and the scale of the structure has been limited. The views of the tower shown in VP10 and VP11 are at a distance and would not be an element that catches the eye on a day to day basis. It was agreed the VP10 was currently uninterrupted above the treetop ridgeline, but not VP11 which contained two roof lines and a power pole above the tree line. It was Ms Englund’s evidence that the Ferry ran to Wagstaffe, not Hardys Bay.
In relation to Wards Hill Road, Ms Englund’s evidence was that she was unaware if the road was a nominated tourist route, but agreed it is a road to the Bouddi National Park which received over a million visitors a year.
Ms Brandwood, planning expert for Optus, gave evidence that the proposed tower has been located to respond to its setting. The proposed tower is located within an established rural/residential area on a site that already contains utility and service infrastructure. The positioning of the proposed tower is within existing vegetation to provide natural screening adjoining the existing water reservoir and pump station. There are no buildings or tall structures in the locality that are capable of hosting telecommunications equipment, as the low scale area lacks structures of sufficient height. Co-location opportunities were investigated and were not viable. Despite the APZ requirements, existing trees and vegetation will be retained and filter views of the facility on an already disturbed part of the site.
From the Denny land, Ms Brandwood’s evidence is that the lower section of the proposed tower will be screened by the water reservoir and existing vegetation. The upper section will be intermittently visible through trees and shrubs. If these were allowed to grow naturally, these views of the proposed tower would be further reduced. The views to the horizon are set well back from the principal private open space shown in VP1 and the view is dominated by the sail posts and trees, before the horizon is seen in the context. Depending on the location, views of the horizon and sunset are uninterrupted. The view impacts are intermittent.
Ms Brandwood’s evidence is that efforts were made during the development of the proposed tower to minimise or avoid obstruction of views from public and private land. The location was influenced by existing infrastructure (which reduces sensitivity to change). The height is limited to the minimum requirements to meet the network objectives, and all three network carriers have been co-located on a single pole. The equipment is mounted close to the pole to reduce horizontal spread and to create a slim profile to limit visual encroachment into views. Her evidence is that the proposed development would not be noticed by the casual observer for many of the vantage points where the tower would be observed in the skyline. It was agreed that the tower will be read in the spectacular natural landscape of Bouddi National Park, but the proposed tower will not impact or adversely impact the special, ecological, scientific or aesthetic values.
In relation to the objectives of the C4 zone and impacts on the special aesthetic values, Ms Brandwood says that the limited views of the proposal in varying degrees from the Denny land will not be an adverse impact on the values of the zone. The proposed tower is sited on disturbed and previously developed land, will not remove or change significant landforms or vegetation, is slimline in design and sited amongst trees to provide meaningful coverage of the tower. The subject land is not mapped with environmental constraints to indicate an elevated significance and is not within a pristine or visually sensitive landscape. It was agreed that wherever possible, visual impacts on scenic tourist routes and significant landmarks should be avoided. The site is not in the Bouddi National Park and there was no area in the target coverage area that would avoid impacts.
Ms Brandwood’s evidence is that principle 1 m. needs to be read with principle 5 b. of the Guidelines. An alternate site needs to meet the coverage objectives and be available for occupation. There are no alternative sites that meet the coverage objectives, including the NSW TA facility and candidate A/B, as demonstrated by the coverage plot attached to the Planning and Visual Impacts JER. Network coverage is not the sole criterion for site selection and coverage must be targeted to where people live, work and operate businesses or other community focused locations.
Ms Brandwood’s evidence is that the alternate sites were not suitable on this basis due to being residential in nature (a higher potential for land use / visual impacts conflicts), not co-located with other infrastructure or did not meet the coverage objectives. The subject site achieves the objectives on a modified site with utilities infrastructure.
Ms Brandwood was questioned about the existing coverage and shown extracts from the websites of Telstra and Vodafone (Ex D11). Ms Brandwood’s evidence is that these extracts are sales documents and related to outdoor coverage. Responding to questions about significant coverage already being achieved by the 4G network, Ms Brandwood maintained that reliable, outdoor and indoor coverage for over 1300 homes / the maximum number of people in the area was one of the stated objectives to be achieved by the proposed tower. Ms Brandwood’s evidence is that the site was identified by the Federal Government in 2018 as a black spot and became a priority location along with 125 other priority locations in the Mobile Black Spot Program. The exact total number of households that did not receive service was not able to be identified, however Ms Brandwood said that the area would not be on the black spot program or on a priority list if there was adequate cover. In re-examination, Ms Brandwood was taken to other documents within what became part of Ex D11 which stated that the coverage maps could not be relied upon and that whilst the outdoor coverage maps were generally accurate, there may be areas where a device will not work. Further documents showed the subject site as a mobile blackspot improvement location. Ms Brandwood said that radiofrequency network designers have undertaken drive testing and monitored data from social media to understand the performance of the network to confirm coverage is poor.
In relation to VP10, being a district view from Araluen Drive Hardys Bay, Ms Brandwood’s evidence is that the tower was visible, but not clearly visible, and not objectionable in the landscape. It was agreed that there were no other structures above the skyline in this viewpoint. In VP11, Ms Brandwood maintained that there was other development that penetrates the skyline, including a white roof, aerial and poles. In response to questions about the broader locality, it was stated that there would be intermittent interruptions of a significant natural ridgeline by the tower, but that there would not be adverse impacts to that environment or Bouddi National Park or the special, ecological, scientific or aesthetic values. Ms Brandwood rejected the proposition that the subject site exhibited special aesthetic values because the site could be viewed in VP10 or VP11. In her view, the site with utilities is set aside for the function to serve the people and provide services, and is not a site of high scenic value. There was no area in the target coverage area that would avoid having some impact and this site is not in the Bouddi National Park. Candidate A would also have an impact.
Ms Brandwood was asked about physical characteristics of a site for this type of infrastructure. Her evidence is that characteristics such as elevation and terrain are more related to coverage, including elevation, terrain and vegetation that could interfere with signals. It was agreed that where possible, scenic tourist routes are sought to be avoided and that this is the main road into parts of Bouddi National Park. In relation to alternative means of providing coverage, her evidence was that micro cells could provide coverage between 100m to 400m depending on elevation and vegetation. Micro or small cells present issues and need to connect to each through fibre or a microwave dish about vegetation. There needs to be underground work, with a lot of rock, sandstone and trees (and their roots) being present in this area, as well as utility poles. In addition, micro cells can only provide for one carrier, whereas the proposed tower will cover all three. As an example, coverage for just Hardy’s might involve four to five small cell sites, multiplied for each of the three carriers.
It was agreed that the existing tower provided service for Marine Rescue, Rural Fire Service, Police and the NSW Telco Authority and Surf Life Saving. Ms Brandwood disputed that there was adequate Telstra service and that they had applied for black spot funding in 2018 but been unsuccessful in finding a site to service Killcare, Killcare Heights and Hardys Bay. Optus has been looking in this area for twenty years to find a black spot site.
Mr Haack, urban design expert for Optus, gave evidence that the key views obtained by Mr Denny’s site are to the south. He observes that vegetation has been maintained at a low height to ensure views are retained. Views of the proposed tower would be at an oblique angle of approximately 70 degrees from the southern façade of the residence to the west. The proposed tower will not be readily visible from habitable rooms. The vegetation to the east of the water tank, if left to grow, would screen visible parts of the proposed tower in a relatively short period of time. Mr Haack’s evidence is that the siting of the tower has been well considered, in that it is located immediately adjacent to existing tall and dense vegetation and infrastructure.
Mr Haack says that there are no guidelines for a visual impact assessment of telecommunication towers in NSW from expansive residential properties and identification of visually sensitive areas of a dwelling. Quoting from The Technical Supplement – Landscape and Visual Impact Assessment – Large-Scale Solar Energy Guideline 2022 (DP&E) (Technical Supplement) which relates to large scale solar projects, this document states that sensitive viewpoints for residential properties includes views from the dwelling but not from the property boundary or other parts of the property. The Technical Supplement states that an assessment of visual impacts should focus on the potential worst case views that could be subject to the greatest impacts on residential amenity. Residential amenity includes the overall quality, experience, nature and outlook available for occupants of a residence, including the immediate surrounds (such as pool areas and gardens).
Mr Haack’s evidence is that the proposed tower will have limited visibility from surrounding residential areas and tourist route. Any visibility will be viewed in the context of power and lighting poles. Where the tower is visible from public land in the National Park or foreshore reserves, it will appear as a small, distant element in the context of residential development.
Mr Haack’s evidence is that the removal of vegetation for the APZ does not impact on views from Stewart Street or the Denny land. The narrow band of subcanopy vegetation being removed on the western side of the compound will slightly increase the tower’s visibility immediately towards Wards Hill Road.
Mr Haack says that that the proposed tower is consistent with the objectives of the C4 zone as it has been sited and designed to minimise adverse impacts on scenic landscape and the amenity of rural living areas. The objectives do not require that there be no resulting impacts. Any impacts are not to be adverse and the proposal has minimised these.
Mr Haack’s evidence about impacts on properties along Stewart Street is that views are possible, but the degree of visibility would differ and be relatively limited to the upper part of the proposal. The proposal would be viewed in the context of the existing built forms including power poles.
Mr Haack’s evidence about visual impacts on distant views is that the proposal will occupy a very small percentage of the horizontal field of view. Relying on The Measure of Man and Woman: Human Factors in Design, by Alvin R. Tilley, Mr Haack detailed that extent of degrees ranging from 0.3 to 0.6 of visual prominence given the distance between the land forms / water areas and the proposed tower above the tree canopy. The location is not a visually landscaped setting but one that includes modifications from residential development and infrastructure. At some view points, the masts of moored yachts protrude above the skyline. The selected colour of light grey will blend with the backdrop sky and a range of atmospheric conditions.
Mr Haack’s evidence is that visitors to the Denny land may view parts of Bouddi National Park, depending on the location. It was accepted that the broader setting of parts of the Denny land (towards the coastal edge) are within a ‘spectacular natural landscape’. At certain viewpoints, parts of the proposed tower would break where the sky meets the natural vegetated bushland and into the sky. Mr Haack conceded that evidence in his visual assessment about the proposal sitting below the tree canopy line was incorrect and with some minor caveats about the tapered pole width and horizontal span shown of the antennae paraphernalia / service equipment, generally agreed with the visual representations shown by Mr O’Grady in his photomontages. It was agreed that the visual impact assessments undertaken did not make any reference to Bouddi National Park or the CCDCP. It was not agreed that the proposal would create or add to visual clutter in an area with existing powerlines and other infrastructure. It was accepted that the subject site is located on a transport route to Bouddi National Park which receives a very high level of tourism. In relation to questions about the ferry service in Brisbane Water, Mr Haack did not specifically consider them and that they would fall into the same category as those perceived by people on land.
Mr O’Grady, planning and urban design expert for Mr Denny, gave evidence that the proposed tower will have unacceptable impacts on the visual amenity of the Denny land, in particular to the principal private open space areas associated with the main dwelling. The view impacts are panoramic and include views to the south across Broken Bay and west towards Brisbane Water National Park. These views are enjoyed in the whole from the Denny homestead and integral to the visual amenity of the property. Through an introduction of a vertical built element that will interrupt the natural horizon, the proposed tower will impact on the integrity of the panoramic view at the west facing edge of the panorama. Mr O’Grady agreed that the views to the south and south-west are not the only views enjoyed by the Denny land but qualified that the impacted views are sunset views and formed part of the panoramic views. Expansive views, including views of the ocean, would be retained from sitting and standing on the terrace area. It was agreed that the Court should have regard to the whole of the view. The proposed tower would be seen from the main dwelling towards the west, visually appearing and disappearing depending on the viewer’s location. The presence of the tower would be known and break the ridgeline to the west. In relation to the gym, the direction of the equipment facing away from the view was not relevant as these could be moved any time. Views could be obtained from a standing position.
Mr O’Grady’s evidence was that during his four site inspections, the sail shade cloth had not been observed over the pool but the poles around it were observed. It was unnecessary to consider obstructions from the sail cloth as it can be taken off when an owner wanted to enjoy the view. It was agreed that the cloth would partially obstruct the view. In relation to VP4 above the water tank, Mr O’Grady explained that this was to assist with the anecdotal evidence of cultural significance of the site. He was unsure if there was any cultural significance. He was unsure of the exact location of any cultural significance. VP 4 also shows some of the worst visual impacts.
Mr O’Grady disagreed that the growth of vegetation can be relied on to screen the proposed tower over time and is contrary to good planning practice, through relying on external measures. The owners of the Denny land should not be required to manage the impacts from the proposed tower. It was acknowledged that some of the vegetation was located on the Denny land.
In relation to the Technical Supplement, Mr O’Grady questioned its relevance but agrees with the quoted description of residential amenity. In relation to alternate sites, a visual impacts assessment is required if network coverage objectives are achievable.
Mr O’Grady agreed that the siting of the proposed tower on the site has been considered in its setting, but that the site itself is not suitable due to the unacceptable impacts on local and regional views).
Mr O’Grady’s evidence is that the proposed tower would have unacceptable impacts on significant vistas including Brisbane Water, its foreshore and adjacent ridgelines. Views would be from public places including foreshores and the waterway. Natural horizon views from the Denny land would also be impacted by the proposal as well as views of bushland backdrops from the street and some houses along Stewart Street.
In relation to the objectives of the C4 zone, Mr O’Grady says that the visibility from the Denny land has an unacceptable impact on the visual amenity of the property. The proposed tower is inconsistent with the objective of the C4 zone due to the adverse impacts on the values of the zone.
Mr O’Grady’s evidence is that the properties along Stewart Street from rear yards and lower storeys of the properties would be acceptable. The proposal would impact on views from the street and from the first storey levels of the Stewart Street properties. Stewart Street is a low density environment with single dwellings in a bushland setting. The existing infrastructure is expected in the setting and forms part of the visual environment. In contrast, the proposed tower would be a new built element not anticipated to be part of the service infrastructure of a low density suburb. The proposed tower would present as a skyline element and interrupt the natural skyline to the north. These impacts are unacceptable.
Mr O’Grady agreed that the proposed colour of the tower is suitable regarding visual impacts and that the amended landscaping plan was suitable for assessment of the DA. Whilst the coverage requirements were outside his expertise, a tower on the alternate NSW TA site would be less visible from visually important locations such as the water and foreshore areas of Brisbane Water and Bouddi National Park.
Mr O’Grady’s evidence is that the impacts on district views from the waterway and foreshore of Brisbane Water is unacceptable. The Killcare Heights suburban area is viewed against the backdrop of the forested ridgeline of Bouddi National Park to the east. Existing development is recessive in these views and below the ridgeline (apart from some isolated houses to the south that descend towards the foreshore). The proposed tower will appear as a new built element beyond a continuous and uninterrupted skyline. This presentation is an unacceptable impact on the scenic quality of views from Brisbane Water and its foreshores. In relation to views from Bouddi National Park, he agreed that views are acceptable but that a tower on the candidate A/B site would likely not be visible from Bouddi National Park south of Killcare Heights.
Whilst the experts agree that an assessment of Ch 2.17 character and scenic quality of the CCDCP has been completed, Mr O’Grady’s evidence is that he does not agree with the assessment.

Mr Coffey for Central Coast Council agrees that the visual impacts contentions identified have been resolved and agrees with Optus’ submissions. Council submits that they agree with Optus’ submissions on the approach to Principle 5, alternative sites assessment in the Guidelines and that the reasonableness of visual impacts from Mr Denny’s office, outdoor living area and area adjacent to the pool should include consideration of the sunshade infrastructure / shade cloth over the pool. In terms of the gym area, equipment faced away from the view and the area should be understood as a secondary living area. The visual impact from the Denny Land is reasonable.
Mr Tomasetti SC for Mr Denny submits that the visual impacts of the proposal on the scenic qualities of the locality and neighbouring properties are not acceptable.
It was submitted that the visual quality would likely be further degraded as the proposed tower could be increased in height as exempt development or as complying development. SEPP TI would allow a structure up to 5-5.8m higher as exempt development and up to 7.5-8m higher under complying development. These are relevant considerations under s 4.15(1) of the EPA Act: Burns v Queanbeyan-Palerang Regional Council [2021] NSWLEC 1544 applying Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 and Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349.
Mr Tomasetti SC submits that the proposal is inconsistent with Principles 1, 2, 4 and 5 of the Guidelines.
Alternate sites have not been adequately assessed. The existing tower (known as Candidate A) has limited visual impacts on the locality and Optus has not demonstrated that utilising this site will not provide additional mobile coverage.
It was submitted that the relevant objectives of the C4 zone to minimise any adverse effects is not the language of objective 3. It was submitted that once it is accepted that the subject land is recognised to have special aesthetic values (including the scenic visual qualities of the land in the zone), any development that adversely impacts those values must not be approved. The proposed development has an adverse impact on the special aesthetic values of the land in the zone and surrounding land, which is dispositive of the appeal.
In considering the development’s visual impacts and whether they are adverse, Mr Denny relied on s 4.15(1) of the EPA Act, the CCDCP and various decisions of the Court:
The CCDCP character and scenic quality statements which identify the Bouddi Peninsula, the Killcare Highs Landscape Units and Wagstaff-Daleys Point Land Unit. Visual sensitivity is “high” for all landscape units. Objectives (a) – (g) for land use of these areas are relevant.
The Court has refused development applications for the same or similar infrastructure where these facilities would have adversely impacted on scenic aesthetic values:

Mr Tomasetti SC submits that it is for the Court to assess for itself the visual impact of the development on the special aesthetic qualities of the land and whether it is adverse, and not to adopt without careful analysis the opinions of the experts. Opinions are based on the facts each expert found to be relevant: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [68]. The Court is required to summarise the expert evidence and analyse it: Etherington v North Sydney Council [2025] NSWLEC 141 at [62] – [73]. An analysis of Ms Brandwood and Mr Haack’s opinions on the visual impact of the proposed development show several reasons why their opinions lack any factual substance (p 22 DWS), being:
Ms Brandwood works for a company that has a commercial business obtaining approvals for communications facilities.
Each of the key considerations addressed at p 4 of the Statement of Environmental Effects prepared by Service Stream dated 9 October 2025 (SEE) are disputed and the site selection justification at p 11 of the SEE is not persuasive. Candidate A has not been adequately explored and the coverage objectives for the proposal has not been shown as inadequate on Candidate A.
The objectives of the zone have been considered on a misunderstanding that ‘the land’ does not exhibit special aesthetic values. The objective refers to ‘areas’ with special aesthetic values and not the land.
The opinions expressed about the objectives for areas with a significantly higher level of scenic or landscape quality lack factual foundation and there is no stated desired future character statement to support that the development is compatible with the desired future character of the zone. The CCDCP expressly recognises the sensitivity of the locality to adverse visual impacts.
Despite evidence that residential areas are to be avoided when possible, the site is zoned for environmental living, which is in essence a low density residential zone as demonstrated by surrounding development.
The visual amenity and design case is disputed on the basis that the colouring of the proposal does not render the facility inconspicuous and the facility above the tree canopy and below is still visible. Landscaping should not be relied on to address adverse environmental impacts and there is no ability to provide additional landscaping on the site.
In relation to Mr Haack’s evidence and the two visual impacts assessments dated 27 September 2022 (not relied on by Optus) (VIA 2022) and 9 October 2025 (VIA 2025), it was submitted that:
The montage images in the visual impacts assessment do not comply with the Court’s policy for Use of Photomontages and Visualisation Tools and it is obvious that the images are not accurate. Mr O’Grady’s montages should be preferred and demonstrate that the scale and visual presence of the proposal is not modest and the effect on visual amenity is obvious. Criticism of Mr O’Grady’s images in cross examination cannot be sustained where Mr Haack’s assessment included the use of google map images with superimposed green sticks on the image. Mr O’Grady’s photomontages demonstrate that there will be views of the proposal from residential development and development in the C4 zone. The development would be visible from the district views as demonstrated by the photo montage. The view of the proposal would be a forever view.
Existing power poles and wires in Wards Hill Road and the existing water reservoir are not adequate justification for the proposed development. The proposal will not look like a telephone pole and the proposal will be an industrial style discordant element in a predominantly natural landscape with values accurately described in the CCDCP.
Landscaping and vegetation cannot be relied on to screen the development. The growth of vegetation to screen the proposed development will cause further and extensive view loss to the west of Mr Denny’s property.
The changing degree from different parts of Mr Denny’s property is not justification for approval of the proposed DA. The view will change depending on where one is standing.
The impact of the development when viewed from the gym is not a determining factor.
The need for the proposed development is not relevant to the visual impacts assessment.
Mr Tomasetti SC submits that the visual impact of the proposal is unacceptable. Approval of the application would be the first time a man-made intrusion would be allowed into the viewscape of what the planning controls identify as a “spectacular landscape”. The proposal is to be located in an area with special aesthetic value where the zone objectives require that it must not have an adverse impact on the special aesthetic values of the zone, namely its scenic values.
The Denny Land is used for a low density residential purpose within the C4 environmental living zone, which enjoys special aesthetic values recognised by the zone objectives and CCDCP. These values are adversely impacted by the proposal from the curtilage to the home and grounds, swimming pool, the home and gymnasium. Other residences on Wards Hill Road and The Scenic Road will also suffer adverse visual impacts as demonstrated by the photo montages. It was accepted that there are no ecological or scientific values of a special kind.
The visual impacts of the proposal on the special aesthetic values of the land in the locality will be seen by thousands of people from a large visual catchment including: Ettalong, southern reach of Brisbane Waters, parts of Bouddi National Park, Hardys Bay, residences in Stewart Street, residences in Wards Hill Road and wider areas and by tourists and visitors. Thousands of people reside in the area and over 1.2 million people visit Bouddi National Park each year. A large proportion of tourists travel along Wards Hill Road and past the subject site.
The preservation of the locality’s natural scenic qualities dictates that the DA should be refused. The tower protrudes into a panorama and above a continuous vegetated ridgeline that is uninterrupted for kilometres in a north-south alignment connecting to separate parts of the National Park. The ridgeline is a natural amphitheatre of hillsides surrounding the southern entrance to Brisbane Waters, Ettalong and Hardy’s Bay. The estuary is bounded by vegetated ridges and steeply sloping land that falls to the water. These are pristine conditions currently unbroken, to now be broken by a telecommunications tower.
Mr Tomasetti SC disputed the need for the proposed development. He submits that Optus has failed to prove that there is a lack of satisfactory coverage in Killcare Heights, Killcare or Hardys Bay. The coverage maps published by Vodafone and Telstra suggest to customers that coverage by 4G and 5G services is adequate in Killcare Heights. To accept Ms Brandwood’s evidence that the maps are promotional material would be to accept that these providers misled the public. The purpose of the maps is to let customers know that they will have coverage by the service provider. Vodafone coverage seems not as good as Optus and Telstra.
Accepting the proposal will improve some mobile services and coverage to an area that includes 1300 homes, the actual number of homes in Killcare Heights, Killcare and Hardys Bay that will see improvements is unknown. Optus’ assertions of improvements to coverage are unsupported by evidence and there has been no attempt to prove, with specificity, the number of homes that lack adequate coverage or that will benefit. The diagrams at Ex D11 throw into serious doubt that existing coverage to 1300 homes is inadequate. No evidence has been called from Telstra or Vodafone to support the need for this facility and no other lay evidence was adduced to this point that would give the Court confidence to support the need for a facility. Nevertheless, the public interest in the provision of a telecommunications facility does not enable a consent authority to sidestep the statutory requirements to be considered.
Mr Tomasetti SC submits that there has not been an adequate attempt to prove whether the service can be improved by using the existing tower at Candidate A or in conjunction with other technology, without the impacts that will be caused by the proposed development on the natural values of the area. The need for a service is one in a suite of considerations under s 4.15 of the EPA Act. Optus has made unsubstantiated assertions that Candidate A will not meet the radio frequency requirements and not further pursued the site.
In relation to alternate sites, Mr Tomasetti SC primarily submits that Optus has not adequately demonstrated the need for the proposal, not demonstrated how many properties will receive improved coverage, how the drive testing was undertaken and not demonstrated why Candidate A should not be utilised. Candidate A already contains a communication facility tower, is owned by Council and could be extended. The choice of a site with a maximum elevation is logical, but Candidate A is also well elevated and co-located with existing infrastructure such as a water reservoir and ancillary facilities. Candidate A is adequately sized to accommodate the proposal. The existing tower already has impacts and no adverse visual impacts would result from using this tower for the additional antennae. Optus has chosen to locate the proposal on the most sensitive location possible, with visual impacts and other impacts including removal of 19 trees and a biodiversity assessment provided “on the run” during the hearing. It was submitted on the basis of Ms Howie’s submission (advised as being an Aboriginal elder) that there may be impacts on Aboriginal cultural values, disturbing view lines and the ability of the Indigenous community to celebrate the whale migration fully. These impacts would not arise from use of the Candidate A site. Optus has not demonstrated that the proposal will avoid underground infrastructure on the subject site or Candidate A.
It was submitted that diagram 4 in the Assessment of Sites Report prepared by Ms Brandwood dated 1 October 2025 (Alternate Sites Assessment) demonstrates areas expected by Optus to be covered by a facility at Candidate A. What is not shown in the diagram, is existing coverage from the Ettalong towers which increases the area of coverage (shown in green) on the diagrams. As core mobile service is already available in the area, small cell facilities which have a coverage footprint of between 100m to 400m could instead be strategically located in targeted high demand areas or fill specific blackspots, which occurred in Empire Bay. The submissions detail that the criteria on p 11 of the Alternate Sites Assessment that informed the selection of the subject site were also criteria that could be achieved by Candidate A.
Mr White for Optus submits that the poor coverage of the area has been documented in many of the resident’s submissions and media reports (Ex E). The first coverage plot plan attached to the Planning and Visual Impacts JER demonstrates very little to no mobile coverage to Killcare Heights, Killcare and Hardys Bay area (“Current L1800 Coverage @-90dBm (Without proposed Optus S1872)”). The proposed development is expected to improve coverage for approximately 1,300 homes including dwellings and buildings. Enhanced connectivity will be provided for residents, businesses, visitors and support essential uses such as telehealth, emergency notifications and personal safety in a bushfire prone locality where dependable communication is critical.
The second coverage plot plan attached to the Planning and Visual Impacts JER (“L1800 Coverage @-90dBm ACL 30) demonstrates the extent of mobile coverage in the Killcare Heights, Killcare and Hardys Bay area if the proposed tower is installed. There is a significant difference in coverage compared to the first coverage plot. It shows that most residential areas would receive coverage.
Mr White submits that co-locating Optus, Vodafone and Telstra on a single structure provides an efficient, multi-carrier solution to improve mobile data coverage for customers, avoiding proliferation of towers in the area. Under the CCLEP, there is no maximum height applicable to the site.
In accordance with s 2.143 of SEPP TI, telecommunications facilities are permitted with consent on any land in NSW. Section 2.143(2) requires that a consent authority must take into consideration the Guidelines. The Guidelines contain five principles. Optus relies on the evidence of its experts and Council’s expert that the Guidelines had been considered and adequately addressed.
Mr White submits that no contention has been raised regarding Principle 2: co-located telecommunications facilities wherever practical and that this has been addressed in the SEE. Principle 3 relating to health standards and exposure to radio emissions has been addressed in the SEE and in an Environmental EME Report prepared by Service Stream Mobile Communications dated 27 October 2023 (EME Report). No contention has been raised in relation to Principle 4, however other evidence relates to sub particulars of the principle such as avoiding impacts on threatened species and communities and avoiding disturbance to identified species and communities. The relevant biodiversity impacts have been addressed in response to ecology issues that were previously raised and resolved.
Principle 5 to undertake an alternate site assessment also relates to contention 3 pressed by Mr Denny. The Court’s consideration in accordance with s 4.15 of the EPA Act does not extend to the question of whether the proposed development would be better located elsewhere or an alternate proposal should be pursued: Amplitel Pty L**imited v The Hills Shire Council [2024] NSWLEC 1787 (Amplitel) at [43]. The consideration is whether the proponent should show it has considered alternate sites, not that a proposed development and its impacts should be assessed against a hypothetical alternative elsewhere. There is no obligation on the proponent to establish that the proposed location and design is the best one. The role of the Court is the acceptability of the proposed development in its proposed location in accordance with s 4.15 of the EPA Act and based on the evidence in the proceedings: Amplitel at [44]. The principle has been addressed in the SEE. Council’s expert and Optus’ experts agree that the alternate site assessment has been adequate. Mr Denny’s expert did not comment on the adequacy of the alternative site assessment as it was not within his brief for evidence. The assessment of alternative sites has been thorough and consider six principal candidate sites, amongst others. Only sites that meet coverage objectives are to be assessed. Mr Denny relies on Candidate A, however large parts of the residential suburbs of Hardys Bay, Killcare and Killcare Heights would not receive coverage from Candidate A and it does not meet the coverage objectives. Micro cells were considered in the Alternative Sites Assessment and Optus’ expert explained in oral evidence why the option was unworkable. To the extent that the existing coverage was challenged by Mr Denny (and not be a contention), as shown by the evidence, coverage is lacking for all of the major carriers in the areas of Killcare Heights, Killcare and Hardys Bay.
Principle 1 relates to minimising visual impacts. Mr White submits that the planning and visual impacts experts’ disagreement on the reasonableness of the view impacts can be summarised as being to or from the below viewpoints:
The Denny Land.
Stewart Street; and
Brisbane Water and surrounding foreshores.
The other area of disagreement between those experts relates to consistency with the objectives of the C4 zone.
Mr White submits that the approaches to view impacts taken in Tenacity Consulting v Warringah [2004] NSWLEC 140 (“Tenacity”) (regarding the Denny Land) and Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046 (“Rose Bay Marina”) (regarding Brisbane Water) are relevant. In relation to the Denny Land, as observed on site and stated by Mr Haack, the dwelling is orientated to the south to take advantage of the sweeping ocean views in that direction. Primary views from the residence, including the outside living area are obtained in that direction where only oblique views of the tower are observed. The primary views to the south remain entirely unimpeded. Outdoor areas, depending on the location, would view the tower. Given the size of the property, the protection of views would be difficult and unrealistic. The outdoor living area, gym and extensive gardens are not primarily living areas. The experts all agree that the design has been minimised to limit visual impacts, including the colour. Impacts to the Denny Land are reasonable. To the extent that it was pressed, the experts agreed that views from the northern side of Stewart Street would receive a reasonable impact. Mr Haack’s evidence is that limited and intermittent views otherwise perceived would be acceptable in the context.
In relation to Brisbane Water and the surrounding foreshores, the experts agreed that view impacts from Bouddi National Park are acceptable. The views from the jetty at Hardys Bay and Booker Bay would only be occupied by a very small percentage in the horizontal view and are not contrary to the DCP Scenic Quality Statements. The views are distant, viewed by a limited number of people and the impact will be negligible. Arising in cross examination was the impacts of the tower that might be seen from Ferry users, however the Ferry travels only to the next bay to Wagstaffe, not Hardys Bay.
Mr White submitted that where a development is compliant with all key applicable development standards, there must be an expectation that it has achieved the objectives of the controls, including desired future character: Gunnamatta Bay Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1230. In any event, there are no adverse impacts on the aesthetic values of the area, the site itself is disturbed land, not within a National Park and Wards Hill Road is a typical residential suburban road.
Mr White submitted that the Court carefully consider all the written submissions and those that refer to the actual evidence provided in the case, as opposed to assertions unsupported by evidence. Submissions made by the Second Respondent that the Court is not bound to any agreements between experts were not specific and unclear as to which evidence it was directed to.

The consideration of the visual impacts, objectives of the zone, the Guidelines and associated aspects of the CCDCP are the key issues remaining (but not the sole issues) in the case and are interrelated.
Mr Haack and Mr O’Grady prepared, respectively, a visual impacts assessment or photomontages (including additional or revised photomontages from the Planning and Visual Impacts JER that became Ex D5). In the Planning and Visual Impacts JER, the experts all agreed these images were reasonable to understand the visual impacts from the proposed development. To the extent that there were criticisms or observations about small discrepancies of the tapering or size of the proposed tower, I also accept that both are reasonable representations. I do prefer Mr O’Grady’s photomontages, as the equipment at the top of the tower was better represented. In considering the visual impacts, for each representation or photograph I have considered the larger of the two depictions so that the worst case scenario has been addressed, which were primarily Mr O’Grady’s photomontages. The experts all agreed that the visual impact assessments prepared by Mr Haack and Mr O’Grady were suitable.
Notwithstanding that I had some difficulty locating this issue in the contentions, raised in submissions was the issue of visual impacts from a proposal that could be undertaken under exempt or complying development if the subject proposal was granted consent. It was submitted that these impacts have not been considered by Optus. I accept Mr White’s submissions and find that the focal point of the assessment is the development as proposed, not a hypothetical development that may or could be done in the future. In my view, the facts here are different to Burns v Queanbeyan-Palerang Regional Council [2021] NSWLEC 1544, where the use of the proposed shooting range was conceded by the applicant that it could likely be used as exempt development by the NSW Police (on an order by the NSW Police Commissioner) and that there was inferred evidence about use of the site for that very purpose. Those likely impacts had not been addressed in that case. Here, the proposed tower may be capable of a further extension in height as exempt development, but that does not make it a likely impact. Optus made clear submissions that the height sought in the DA is the one it seeks consent for and I accept that there is no evidence that Optus intends on extending the tower higher than that proposed. Whilst accepting that it will be possible, there is no evidence that it is likely that the tower will be further increased in height on the current application before the Court. The focal point of the assessment is therefore the DA as proposed in the class 1 appeal.
Evidence was adduced about a shade cloth that was observed in photographs over part of the pool, which was removed not only on the date of the site view but also in previous years. I have considered this evidence but given it little weight in the consideration of the visual impacts, as I accept that a shade cloth over a pool can be seasonal and is not a permanent structure that would often obscure the proposed development.
To the extent that it was somewhat submitted that Ms Brandwood’s employment was to obtain approvals for telecommunications facilities, and perhaps an assertion as to her credibility, I find that her evidence was entirely consistent with an expert’s obligations and code of conduct. The submission was not made good by any reference to any part of Ms Brandwood’s evidence.

Dealing first with the broader principles about siting and design before engaging in the disputed view impacts, the Guidelines encourage that as far as practical; telecommunications facilities should be integrated on an existing building or structure. The proposed development is not integrated with a building or structure. However, I accept that its location with other infrastructure, being the water tower, serves a similar purpose of integrating infrastructure. As far as a location on the subject site, all experts agreed that the location on the site causes the least impacts (acknowledging Mr O’Grady’s evidence that the tower should not be located on the subject site at all due to its visual impacts). For the reasons set out in relation to both visual impacts and alternate sites, I accept Ms Brandwood’s evidence that this site is the most suitable to achieve the service coverage objectives and that no buildings or tall structures capable of hosting telecommunications equipment were available in the locality. The facility therefore cannot be integrated with the design or appearances of a building/structure that it is attached to. In this instance, depending on where the proposal is viewed from, the proposed tower is still partly obstructed by the existing water tower, topography and vegetation on the land. Whilst not achieving a. and b. of Principle 1, I accept that it is not practical to integrate the telecommunications facility within a building on this site (as there is no building apart from the water tower) and that this site has been appropriately selected due to the coverage requirements of Optus. I accept that whilst Candidate A would likely be a better site to avoid visual impacts from the Denny Land, dwellings along Stewart Street and potentially district view impacts and would therefore reduce the number of telecommunications facilities, there is no evidence that such an arrangement would reduce visual clutter caused by both facilities or that both facilities would be seen from any of the disputed views. Accordingly, and given these findings, any provisions dealing with telecommunications facilities that are proposed to be co-located on an existing building/structure have been considered but are generally not relevant, as the proposal is a standalone facility. Further, any provisions relating to removing redundant telecommunications facilities and restoring a site are not relevant to this proposal as the proposal is a new facility.
In relation to relevant industry design guides, none were relied on by any party. Mr Haack relied on a design guide for a different type of infrastructure, of which I accept Mr O’Grady’s evidence that the guideline is not relevant but that the principle extracted about consideration of worst case impacts that would be caused by a proposed development is of assistance.
In relation to Principle 1 h. the proposal seeks consent for the removal of 19 trees, which the arboricultural experts agree is acceptable. I accept the agreed evidence further below that there are no ecological or bushfire impacts either.
I accept that the design and visual impact of the tower has been minimised as far as possible, though it is not necessarily sympathetic to the scale and height of adjacent buildings in a low density area. I accept the agreed evidence that the location on the subject site is the best location to minimise impacts and the evidence of Ms Brandwood that the proposed height is what is required by the service providers (noting the evidence that the Telstra equipment is lower in height to accord with their service requirements). I accept Ms Brandwood, Ms Englund and Mr Haack’s evidence that the tapered pole and service equipment have been minimised as far as possible, being located as close to the pole as possible and have co-located all three service providers (Optus, Telstra and Vodafone). As agreed by all experts, the co-location of the service providers and close mounting of service equipment to the pole minimises bulk and reduces cumulative visual clutter. In relation to ancillary services around the ground level, as evidenced from the site view and not disputed in the evidence, these structures will be mostly screened from most vantage points by the existing retained vegetation and seen on a backdrop that includes the existing water tower.
I accept that the proposed development will be higher than any other development in the area, with the agreed evidence of the planning and visual impacts experts that the tower will protrude above the tree canopy and be visible against the sky. The proposed colour of grey was agreed as appropriate by the planning and visual impacts experts, which is also referred to in the Guidelines, and I accept that agreement.
What remains is the key issue between Optus and Mr Denny. Despite any minimisation of the telecommunications facility through its design, Principle 1 requires a consideration of the acceptability of the view impacts and obstruction of views. I accept the premise that the visual impacts of a proposed tower are not acceptable simply on the basis that the design of a tower has been minimised in height and width as far as possible and that the site achieves the coverage requirements. They are related but separate considerations and the slimmest tower may still result in unacceptable view impacts that would warrant refusal.
The experts agreed that the remaining areas related to Principle 1. e and g in relation to responding to a setting and avoiding or minimising obstructing significant views of a heritage item or place, a landmark, a streetscape, vista or a panorama, whether viewed from public or private land. Mr Denny also made submissions in relation to the assessment of visual impacts for alternative site assessments (or lack of assessment undertaken).
In considering the views that would be impacted by the proposed tower, I accept the agreed evidence of Mr Haack and Mr O’Grady that the consideration should focus on the worst case views that would be impacted (p 5, Planning and Visual Impacts JER). In most, if not all instances, that is the depiction shown in Mr O’Grady’s photomontages. The accuracy of Mr O’Grady’s photomontages was generally not disputed save for some minor observations about the tapering of the proposed tower pole. I have considered the proposal as depicted. Finally, I acknowledge the agreement of the experts in the Planning and Visual Impacts JER that the extent of tree removal and landscaping was known at the time of the expert conferencing and accords with the APZ requirements.

Given the size of the property, there are many locations on the Denny Land where approximately half of the proposed tower will be visible, including the service provider equipment. Whilst I have considered the general principles in Tenacity*,* I have been mindful that the experts did not present their evidence through that lens. More importantly, I am mindful that Tenacity dealt with view sharing, whilst Principle 1 of the Guidelines imposes a different test. It is the tests in Principle 1 that I have considered above all others.
The greatest view impacts occur to the private open space areas of the Denny Land. VP1, VP2, VP4, VP13 and VP14 of Mr O’Grady’s photomontages at Ex D5 and attached to the Visual and Planning Impacts JER shows the tower in clear view from the main private open space adjoining the primary dwelling and the swimming pool areas. I accept Mr O’Grady’s evidence and Mr Tomasetti SC’s submissions that the height and location of the tower have an impact on the panoramic views enjoyed from this area and adjoining open space areas / garden areas and recreation areas of the Denny Land. The tower is located to the west of the primary dwelling, and will also be visible from certain locations during sunset views. I agree with Mr O’Grady and accept that mitigation measures discussed in the evidence that Mr Denny could or should grow vegetation to screen the tower are not acceptable, as it is not the responsibility of an impacted party to manage the impacts of a proposed development. I also accept on the basis of Mr O’Grady’s photomontages and the site view that this would likely lead to further impacts to Mr Denny’s views.
The views obtained from the private open space area adjoining the primary dwelling are significant views, also obtained from other positions throughout the grounds as shown in Mr O’Grady’s photomontages in VP 13 and 14 of Ex D5, VP1, VP2 and VP4 in Ex D5 and attached to the Planning and Visual Impacts JER and Mr Haack’s Figure 39 (p 9, VIA 2025). As stated in Mr O’Grady’s evidence, these views include across to Broken Bay to the south, intact bushland of Bouddi National Park to the south west and Brisbane Water National Park to the west. No doubt, these areas were likely designed to capture these panoramic views and would be often utilised by the residents and their visitors.

I accept the evidence of Ms Brandwood, Mr Haack and Ms Englund that the proposed tower, its location and design have minimised its impacts from Stewart Street to both public and private land. The disputed areas of impacts relate to first storey levels on both sides of the street and views from the street. I find that there will be some impacts to views of the bushland and skyline, however these are already broken by existing dwellings and infrastructure. Whilst the impacts from the proposed tower will be greater and higher, they do not impact on significant views obtained from Stewart Street, are partly screened by the existing vegetation and tree canopy and are confined to a slim protrusion of the proposed tower into the sky. I accept the evidence of Ms Englund and find that there is adequate spatial separation between the affected dwellings, street and the proposed tower. Accordingly, I accept these as being reasonable impacts in a residential area with special scenic qualities in a broader National Park setting.
In relation to Wards Hill Road, there is generally a lack of evidence from the experts about impacts or any dispute between them. Mr Haack’s evidence is that the removal of vegetation for the APZ would slightly increase the visibility of the proposed tower immediately adjacent to Wards Hill Road (but no other affected area, including Stewart Street or the Denny Land) and that there would be limited visibility from tourist routes, which I accept. I find, on the basis of the photomontages (including revised VP5 in Ex D5), that the visibility of the proposed tower is a reasonable impact to residential properties that will be seen and somewhat screened amongst dense vegetation and primarily above the tree canopy. The siting and design of the tower has responded appropriately to the dense vegetation and is not unreasonably visually intrusive to the residential properties along Wards Hill Road.
Based on the VIA 2025 and Mr O’Grady’s montages, I find there are very little, if any, impacts to significant views from Stewart Street or Wards Hill Road or the residences along these roads.
Relevantly to these streets and in relation to visual impacts from the proposed tower is the issue of visual clutter. Whilst I accept Mr O’Grady’s evidence that the proposed tower is more intrusive than powerlines or other usual residential infrastructure, I accept Ms Englund and Ms Brandwood’s evidence that the proposed tower will be observed amongst this type of infrastructure. I find that the proposed tower, whilst larger than common residential infrastructure in these streets (and most streets), will be visible but not unreasonably intrusive to residents and visitors. I accept the stated impacts by Mr O’Grady, including intrusion into the skyline and backdrop of bushland vegetation, but find that the existing vegetation and bush setting screens half of the proposed tower (the worst view as shown in VP5). To the extent that it was submitted that the proposal would impact on the views seen by the millions of visitors each year to Bouddi National Park, I find that the intermittent views that would be observed by these visitors passing the site are minimal, confined to broader views given that most of the lower part of the tower would be obscured by vegetation as they drive or walk past and are reasonable impacts to the localised bush vegetation. The proposal does not cause unreasonable impacts in terms of visual clutter or views that would be experienced by tourists. There are no impacts on significant views.

The Aboriginal Assessment detailed that the study area is within the traditional lands of the Darkinjung and Kuringgai people, where the region has numerous sites and evidence displaying Aboriginal cultural significance. The Aboriginal Assessment stated that it undertook a site inspection of the Denny Land with the property owner, who described smoking ceremonies having occurred on site between mid-2000s to mid-2010s. Present at the site inspection was an Associate Archaeologist and a representative from the Darkinjung Local Aboriginal Land Council (Darkinjung LALC). The Darkinjung LALC representative, to the best of his knowledge, was unaware of the ceremonies or any invitation to participate. Ultimately, the Aboriginal Assessment made no positive findings in relation to ceremonies related to whale migration and recommended no further assessment was required.
In considering this aspect of Principle 1, there is no dispute about any impacts to the rock engraving referred to by Mr Denny, which I accept.
Optus has undertaken two investigations in the form of the Peer Review and Aboriginal Assessment, from suitably qualified people. There was no expert evidence adduced by Mr Denny to contradict or dispute any of the evidence presented by Optus. I prefer the evidence of Optus and on their evidence, accept that the proposed tower will not disrupt Indigenous ceremonies as it is likely that there has not been uninterrupted views to migrating whales from his property. The proposed tower itself does not obstruct significant views from what I understood to be the part of the site where ceremonies would be held, with significant vistas retained. Further, assuming VP4 is the area for cultural ceremonies (on Mr Denny’s evidence), there is extensive tree canopy blocking the vast majority of views from that location, with no water views evident. VP4 would correspond with Optus’ evidence that views of the whales migrating would unlikely have been obtained from the property. With consideration of the material before the Court, there is no evidence that the tower itself would disrupt or cause impacts to cultural ceremonies that have or will occur on Mr Denny’s property. There were no other Indigenous cultural impacts, or other heritage impacts identified. I accept that this provision of Principle 1 has been addressed.

Principle 2 and provisions a – e primarily seek to co-locate telecommunications facilities to existing buildings or similar structures to minimise clutter, extend existing towers and co-locate or underground telecommunications lines. Of relevance to the issues in dispute, Principle 2 requires an applicant to demonstrate why co-location is not practical and if a telecommunications tower cannot be co-located, demonstrate that the new facility has been located and designed to ensure that cumulative levels of radio frequency emissions are within the maximum human exposure levels set out in Radiation Protection Series S-1 (RPS S-1).
For the reasons set out in relation to Principle 1 and Principle 5, I accept Ms Brandwood’s evidence that the proposal cannot be co-located with another facility due to issues with either service coverage or owner willingness. The proposed tower itself will co-locate three providers, being Optus, Vodafone and Telstra with existing water utility infrastructure.
The proposal will underground some services and powerlines to minimise clutter, however the facility itself is a wireless facility. I also rely on my findings under Principle 1 that the proposal will not result in visual clutter with existing infrastructure and that there is no evidence that the existing tower located nearby at 223 The Scenic Road, Killcare Heights (also Candidate A in the alternate sites assessment) would be visually read with this proposal in a way that would cause clutter. The evidence of the arboricultural experts is that the undergrounding of services will not cause impacts to the trees, particularly 2 and 5, subject to conditions of consent that have been agreed to. I accept this evidence.
On the basis of the SEE and the EME Report, I accept the evidence that the proposed tower will be within the maximum human exposure levels allowed in RPS S-1.
Accordingly, and with consideration of contention 3 of the Second Respondent’s SOFAC, I have considered Principle 2 and accept that the provisions have been met where they are able to be. Any inconsistencies are acceptable for the reasons stated above.

Principle 5 requires an applicant to undertake an assessment of alternative sites, and an adequate investigation of a number of sites in good faith. In addition to site selection matters in section 4 of the Industry Code C564:2020 Mobile Phone Base Station Deployment, sites should only be included where they meet the coverage objectives and confirmed as available (with an agreeable landowner). A full assessment of an alternative site is only required where the preferred site is owned by the carrier. The weight placed on selection criteria should be indicated and an assessment undertaken before any site is dismissed. The inadequacy of the alternative sites assessment is raised in Mr Denny’s contentions 1, 2 and 3.
I accept Mr White’s submissions that whether an alternative site or alternative proposal would be better or should be pursued instead of the current proposal is not raised by Principle 5 or s 4.15(1) of the EPA Act: Amplitel at [43]-[44], also referring to TPG Telecom Limited v Inner West Council [2023] NSWLEC 1778 at [36]. I accept and agree with this proposition articulated by the respective Commissioners and Mr White.
The test in Principle 5 is to undertake a good faith assessment of a number of alternative sites, within the parameters of Principle 5. b. I accept the agreement of the experts that an adequate number of alternative sites has been provided.
The extent of any disagreement between the experts in relation to any of the requirements of Principle 5, is that a preliminary visual analysis of Candidates A and B indicates that a similar proposal on those sites would have a lesser visual impact in views from Brisbane Water foreshore area and the Bouddi National Park, expressed by Mr O’Grady and demonstrated by the photomontages in VP9, VP10 and VP11. On the basis of those viewpoints, I accept that there would be a lesser visual impact to those views and can also infer a reduced or almost absent visual impact to Mr Denny’s site, Wards Hill Road and Stewart Street, depending on the location of the viewpoint. However, this is not what Principle 5 requires.
I accept Ms Brandwood’s evidence, as demonstrated in the Planning and Visual Impacts JER, the SEE and the Alternative Sites Assessment that the alternative sites have been assessed but none meet the requirements under Principle 5 b. The assessment of Candidates A and B, being a co-location with an existing NSW Telco Facility (monopole tower) close to the subject site, does not provide service coverage to significant parts of Hardys Bay and Killcare as shown in Figure 4 of the Alternative Sites Assessment. I accept this evidence that the service coverage objectives, in an area lacking service coverage, would not be achieved by either Candidate A or B. Candidate C was on the subject site but above the water reservoir. This was not supported by the Council, on the basis of concerns about water security, and was limited in height to 17.2m and therefore could not achieve the coverage objectives. Numerous other locations on the subject site were considered, which I accept from both the Alternative Sites Assessment and evidence of the experts that the location on the subject site is the superior location. Candidate E, located in the National Park in Killcare Heights was considered. There was better coverage than Candidates A and B, but it still did not achieve the coverage objectives sought by Optus, primarily due to the steep topography of some of the nearby land which would interfere with the service coverage. Figure 14 within the Alternative Sites Assessment shows parts of Killcare and Killcare Heights not receiving coverage. This coverage worsens for Candidate F, with more site drawbacks including its zoning within C1 National Parks and Nature Reserve, where tree removal would face challenges. Candidate G on Council land would not achieve service coverage for many parts of the targeted areas, as shown in Figure 20 within the Alternative Sites Assessment, even with a tower of 45m. A number of other sites were briefly considered but discounted due to being in residential ownership, which Optus says are often not agreeable host sites and increase visual impacts. Contrary to the submissions made, small cell facilities were also investigated in the Alternative Sites Assessment, with issues such as limited coverage footprints between 100m – 400m and increased physical impacts from each cell in an undulating and heavily vegetated area. On the basis of this evidence and Ms Brandwood’s oral evidence, I accept that an adequate number of alternative sites were investigated in good faith and that only Candidate D, being the subject site, met the coverage objectives and had an agreeable owner, as are relevant matters for consideration under Principle 5. Accordingly, I accept that Optus has provided adequate information and met the provisions of Principle 5, and by extension, Principle 1 m as no other sites were viable.
There was extensive cross examination and submissions on the issues of coverage, many of which were objected to. The service coverage improvements provided by Optus were not disputed in any contention. Contention 3 raises issues that the alternative sites assessment has not properly considered candidates with similar or higher coverage rates, but did not dispute the actual coverage.
I have therefore predominantly disregarded the submissions made in relation to challenges to the accuracy of the service coverage information provided by Optus. To the extent that it is raised in community submissions, including Mr Denny outside of his role as a party to the proceedings, and therefore a consideration under s 4.15(1)(d) of the EPA Act, I accept the undisputed evidence provided by Optus as attached to the Planning and Visual Impacts JER and within the SEE that the current service coverage is currently inadequate resulting in poor mobile coverage. I accept Ms Brandwood’s oral evidence that the extracts of the website at Ex D11, only provided during the hearing, relates to outdoor coverage and not indoor coverage, and that the existing coverage and proposed coverage provided as part of the DA is based on information from Optus’ radiofrequency network engineers. I accept Ms Brandwood’s mainly unchallenged evidence about poor service in the area and that the area has been identified as a mobile service blackspot for many years, which is supported by the information provided in Ex E tabs 1-9. This information ranges from 2017 community newsletters, numerous newspaper articles and most critically, identification by the Federal Government of the area of Killcare in the Mobile Black Spot Program. In contrast to several submissions questioning the existing service coverage or stating they received adequate coverage, there were many community submissions stating that they received inadequate or patchy coverage. I have no difficulty in accepting the evidence that there are service coverage issues that are sought to be serviced by the proposed telecommunications tower accommodating Optus, Telstra and Vodafone.

I accept the uncontroversial submissions that the provisions of SEPP TI prevail over the CCLEP in the event of any inconsistency. The nuance of Mr White’s submissions was that a prohibited development may not be compatible with some of the zone objectives and that this should not be determinative. This would defeat the purpose of SEPP TI to permit the prohibited use. I also accept Mr Tomasetti SC’s submissions that there is nothing in the C4 zone objectives, save for the proposed development being prohibited, that causes an inconsistency with any part of SEPP TI.
As detailed through my previous findings, I have had regard to and engaged with the objectives of the C4 zone. I accept Ms Brandwood’s evidence that the subject site itself does not exhibit any special aesthetic values. I also accept that the objectives are broader than the site, and that the requirement is to ensure that additional land uses will not have adverse impacts on ‘areas’ with special aesthetic values. Having regard to the evidence, the values described in the zone objectives and the values of Bouddi National Park and Killcare Heights in the CCDCP, I find that the proposed tower will not have an adverse impact on the special aesthetic values. The proposed tower will be seen from within and views to the Killcare Heights Landscape Unit, as well as within the context of Bouddi National Park. I accept that the tower will be seen from within and in the context of an area that has regional scenic significance and recognised as an area of outstanding natural landscape. But the slim nature of the tower, pale grey colour against the vegetation and sky, placement on a disturbed site and coverage of the tower by existing vegetation and tree canopy have minimised those impacts. These impacts, in my view, do not rise to the level of adverse impacts on the special aesthetic values identified by the zone objectives. I do not find that the proposal should be refused having regard to the zone objectives.

The questions Mr Pepper raised were regarding if Tree 5 was to be removed or retained, which was important as Tree 5 contains a hollow. Mr Pepper’s evidence was that if removed, further investigation and assessment would be required. In oral evidence, it was understood that Tree 5 would be retained.
In relation to the microbats surveys, Mr Pepper’s evidence is that whilst they were not conducted during the recommended survey months, as there were bats recorded in the surveys, it can be inferred that more would be present in the recommended months. The surveys are therefore not ideal for some species, but also not a matter of contention. The site can be surmised as forming part of a small portion of a larger foraging habitat for local microbats.
Similarly, whilst the surveys undertaken for owls was for two nights instead of six nights and may be considered inadequate, the existing vegetation within the site and on the adjoining Denny Land is suitable for the Powerful Owl. The site is also mapped as being suitable habitat for owls. Mr Pepper concluded that the site and surrounding land contains suitable foraging habitat for large forest owls, of which a small area of 0.04ha would be removed. The site itself does not contain any large tree hollows. On this basis, Mr Pepper concluded that there was not suitable breeding habitat and overall, that the proposed development is not likely to have an adverse effect on owl breeding.
In oral evidence, Mr Pepper’s evidence is that he did not have enough time to review the versions of the BDAR received 12 December 2025, as he had travelled down from Sydney on the train that morning.
In response to Mr White’s questions, Mr Pepper clarified that he did not quite say he had ‘no major reservations about the document’ to Dr Henderson. He agreed that partly, he had said the concerns relating to the large-eared pied bat had been addressed by a credit obligation. He was unable to continue to respond to Dr Henderson’s emails after 11am as he was meeting with the legal team.
Mr Pepper confirmed that his evidence was that a BDAR was not required, and that his only reservation was about retention of Tree 5. He agreed that he was aware from the evidence of the Arboricultural experts that Tree 5 was able to be retained.
It is clear from the Ecology JER that the additional information provided in joint conferencing did not overcome Dr McLean’s concerns about the squirrel glider. Dr McLean, for Council, details his concerns and reasoning over a number of pages, including his concerns about connectivity for the Squirrel Glider and therefore impacts to a vulnerable species.
Dr McLean’s evidence in relation to microbats was that the surveys undertaken outside of the preferred period in April is adequate, which will capture some species that are usually in lower abundance in summer, but that the breeding period has not be captured. With the assumed presence approach, no issues are raised with the April surveys. His evidence is that it is likely that microbats and birds can effectively cross Wards Hill Road, but it is less certain if Squirrel Gliders can.
Dr McLean’s evidence is that the proposed development will not result in a significant impact on large forest owls.
Dr Henderson’s evidence detailed her reasoning why a BDAR was not required for the squirrel glider and that the amended Ecological Report prepared by Ecological dated 21 November 2025 addressed any impacts on the identified species.
In oral evidence, Dr Henderson confirmed that the changes to the BDAR included removal of references to the vegetation management plan (VMP) for vegetation beyond the landscape plan. The VMP was suggested as one of a suite of measures to avoid and minimise impacts, but not the most important consideration. It was removed on instruction from Optus. In response to questions about a preference to not remove trees, Dr Henderson’s evidence was that the proposed removal of trees would not create an impassable gap. Fauna who occupy the canopy are still able to traverse the site with or without the trees being removed, including the Squirrel Glider who will traverse a 20m gap.
Dr Henderson also confirmed that there are no outstanding biodiversity values on the site.
All experts agreed that the proposed development will not remove any potential owl breeding habitat.
All experts agreed that the development did not provide habitat that would be suitable for threatened flora species. Without raising any issues, Dr McLean detailed his knowledge of known threatened flora in the area.
Relevantly, the Arboricultural experts agreed that Tree 5 could be retained, as proposed by the DA.

In closing, Mr Coffey maintained that prior to the provision of a streamlined BDAR, there was insufficient evidence to establish that a significant impact would not occur to the Squirrel Glider. The BDAR addresses Council’s issues and resolves all the remaining ecology related contentions.
Mr Coffey submitted that any criticism or suggestion of unacceptable behaviour of the experts should be rejected. Council was always clear that it contended a BDAR was required and this was the only matter of dispute between Council and Optus. Mr Denny’s expert did not consider that a BDAR was required. In relation to the procedural fairness issue raised, Mr Coffey submitted that no adjournment was sought by the second respondent to resolve the issue. This was a forensic decision made on behalf of Mr Denny. There was also no cross examination of Optus’ or Council’s expert on the BDAR. Any procedural fairness submission should be rejected.
Mr Tomasetti SC submits that the proposed development should be refused on the basis that Mr Pepper was unable to comment on the last version of the BDAR.
Mr Tomasetti SC submits that the Court should be very cautious accepting the agreements of two of the three experts where one has been excluded from the process and had no opportunity to participate in it.
In response to questions from the Court about why the submissions amount to a refusal instead of a request for an adjournment, Mr Tomasetti SC submitted that this was not a procedural issue and instead a substantive issue as Squirrel Gliders are present on the site and a BDAR is now involved. The BDAR had not been examined by a party to the proceedings. An adjournment would have incurred further costs to the innocent party.
Mr White submits that the ecology issues have been resolved by the provision of the BDAR. Mr White referred to Mr Pepper’s evidence that a BDAR was not required. As he was ill, Mr Pepper was not able to be at the site view, where the experts were conversing about the issues as they normally do. There is nothing in the Court’s policy that prevents experts discussing the issues. If Mr Pepper had been on site, he would have taken part in that discussion. In oral evidence, Mr Pepper gave evidence that he did review the first BDAR. Mr Pepper and Dr Henderson had a conversation about the BDAR. There was no exclusion of him.
Mr White submits that the issue of the BDAR was confined to Council and Optus as Mr Denny’s expert did not think that a BDAR was required. There has been a slight mischaracterisation of the process where, without objection, the last BDAR was tendered. There was no conferencing on this document without Mr Pepper, it is an application document supporting the DA to address a jurisdictional requirement raised by Council. Whilst it was late, there was no objection to it and no adjournment sought. The submissions on behalf of Mr Denny should be rejected. The consideration for the Court is the merits of the BDAR, which should be accepted.

Firstly, on the issue of costs for both BDARs, orders have been made for Optus to pay Council’s costs thrown away, as agreed or assessed, pursuant to s 8.15(3) of the EPA Act as I am satisfied that the amendment to the DA relating to the BDAR’s is more than minor. Similarly, the Court notes that Optus will pay Mr Denny’s costs thrown away, as agreed or assessed, as a result of the amended DA in relation to the BDARs. I note previous orders during the hearing in relation to costs and amendments to the DA.
In understanding the issue raised by Mr Tomasetti SC, it is helpful to outline the critical events that occurred during the hearing, which are as follows:
Mr Pepper was not in attendance for the site view, which occurred for most of the first day of the hearing. I accept he was unable to attend as he was unwell.
On the second day of the hearing, Mr Pepper was still unwell. In discussing the hearing schedule, it was indicated that the ecologists may be cross-examined on Wednesday.
As Mr Pepper was unwell, on request the Court excused him from attending in person until he was required for evidence (Transcript p 60 par 5-20).
On day four of the hearing, Mr White submitted that on the basis of the issue raised about the Squirrel Glider and discussions between Dr Henderson and Dr McLean, Optus had prepared a streamlined BDAR. That morning, a text had been sent to all the experts indicating that the BDAR would be ready by 1:30pm and was intended to be circulated to them. In response to submissions about conferencing without Mr Pepper, Mr White submitted that Mr Pepper’s evidence did not raise concerns about significant impacts on the Squirrel Glider and that he had been excused as he was unwell.
Mr Tomasetti SC submitted that this was the first time hearing of the BDAR and raised issue that the experts had conferred without Mr Pepper.
Mr Coffey submitted that Council had not worked with Optus on the report and that his instructions were that the BDAR had been provided to Dr McLean and Mr Pepper at the same time. He submitted that the experts were not in the witness box and that there was nothing wrong with the experts continuing discussions and attempting to refine the issues.
The BDAR was filed and served over lunch the same day. Following the lunch adjournment, Mr Tomasetti SC submitted that there was no notice to Mr Denny about the incoming BDAR, that it would take at least four hours to review the document and that the hearing needed to be adjourned immediately to provide procedural fairness.
Mr White sought to tender the BDAR to address what he submitted was in response to an insufficient information contention. Mr White submitted that the BDAR arose from that contention and discussions at the site inspection between Dr McLean and Dr Henderson, which is entirely normal and expected from experts. Whilst unfortunate that Mr Pepper was not on site for those discussions, there was nothing to disclose as the BDAR was only ready on day four of the hearing. Both parties were served at the same time. The test for admissibility is relevance, which the BDAR is as it responds to issues raised by Council. Any prejudice can be cured by an adjournment of the hearing for the afternoon which would provide the required four hours needed for Mr Pepper’s review.
Mr Coffey did not consent or oppose the tender of the BDAR and confirmed he had received the document at the same time as Mr Tomasetti SC. Mr Coffey submitted that Dr McLean had commenced his review and would need the afternoon for review and some time in the morning to understand any remaining issues.
Mr Tomasetti SC objected to the tender of the BDAR on the basis that the issue was raised in the contentions and the lateness of the report on day four of the hearing. Further criticism was also submitted about the exclusion of Mr Pepper.
I granted leave to amend the DA and allow for the tender of the BDAR over the objection of Mr Tomasetti SC, on the basis that there was sufficient time for the ecology experts to review the report, for the representatives to take instructions and prepare for cross examination by midday on the following day. Court was adjourned to provide this time on 11 December 2025.
From what I understood between the submissions of the three parties, there were changes made to the 11 December 2025 BDAR and the Final BDAR, culminating in two versions overnight. Version 2 was stated as being received in the morning and version 3 at 2pm on 12 December 2025. The changes between the morning version of 12 December 2025 and the final BDAR were minor and described on pages 223-224 of the Transcript, lines 30-50.
Mr White sought to tender the Final BDAR, being the 2pm version.
Mr Coffey did not object to the Final BDAR.
Despite submitting that Mr Pepper had not seen the final BDAR and had not had enough time to review the morning version, Mr Tomasetti SC did not object to the tender of the Final BDAR.
It ultimately transpired that Dr Henderson was impacted by transport issues. Leave was sought and granted for her to appear via AVL. Mr Pepper ultimately appeared in person, along with Dr McLean.
Cross examination of the experts was completed on 12 December 2025 and the evidence closed. The hearing was adjourned to the next available date and closing submissions were heard on 31 March 2026.
I acknowledge that all experts greatly assisted the Court in the Ecology JER, clearly setting out their respective positions and detailing their reasoning. As submitted in opening, on the basis of Mr Pepper’s evidence, Mr Denny did not have any contention remaining in relation to ecology. The highest it was put was that the second respondent would ‘fall behind Council’. This was not what ultimately transpired.
The issue of whether a BDAR was required or not was between Council and Optus. Mr Pepper gave clear evidence in the Ecology JER and cross examination that he did not consider that a BDAR was required. In what I consider to be said in good faith and to assist the Court, he did not depart from that evidence at any time. Accordingly, the issue of a BDAR is not an issue between Mr Denny and Optus.
Further, the criticisms repeatedly levelled at the experts for any discussions about issues between them without Mr Pepper were unwarranted for the reasons submitted by Mr Coffey and Mr White. The Court reasonably excused Mr Pepper from an in person appearance for the majority of the hearing as he was unwell. Conversations between the experts who are required to attend a hearing in person can be expected to occur. Given the hearing was live streamed and he had leave to appear via AVL, Mr Pepper was able to keep up with hearing, to the extent that the second respondent’s team may not have also been able to do. This was also appropriate as there were no remaining issues raised by Mr Pepper, save for the resolution of Tree 5 by the Arborists. Mr Pepper gave evidence that he was aware that Tree 5 could be retained. On the submissions before the Court, Mr Pepper was given the BDAR at the same time as Dr McLean. To the extent that it was submitted that the experts never reached out to Mr Pepper, which I do not necessarily accept as I consider that the experts reasonably engaged in some discussions when in attendance during the hearing, this submission goes both ways in terms of Mr Pepper keeping himself informed. Nothing turns on that submission.
Dr Henderson and Dr McLean, in good faith and to assist the Court, continued their discussions on the issues solely between them. I reject any criticism of their conduct in these circumstances.
To the extent that the Court’s Conference of Expert Witnesses Policy was referenced, despite the submissions received I cannot identify any breaches to it.
Both Dr McLean and Mr Pepper reviewed the BDAR of 11 December 2025 and were given time to do so through an adjournment of the hearing. I accept there were last minute amendments to the BDARs and am somewhat unclear as to why Dr McLean, who raised the issues, was able to review all of the information but Mr Pepper was unable to. As explained to me by Mr White, these amendments seemed minor. In any event, I accept the amendments came about very late in the hearing and late in the time provided for review.
Ultimately, there was no objection to the tender of the Final BDAR from any party. In my view, procedural fairness is not a reason to refuse a development appeal but is instead a procedural issue with different remedies, such as a further adjournment or a basis to object to a tender. On the Final BDAR, no request for an adjournment was sought and the submissions made to refuse the DA on this basis are difficult to reconcile.
Having considered the submissions and remaining issues in dispute, I find that there was no procedural unfairness to Mr Denny. The issue of a BDAR being required for the Squirrel Glider was not an issue between Mr Denny and Optus. Mr Denny’s contentions about the Squirrel Glider had been resolved during joint expert reporting, where Mr Pepper was satisfied with the information within the Ecological Report and other documentation attached to the Ecology JER. A BDAR was not required, on his evidence. This was confirmed by Mr Denny in opening submissions. Accordingly, I accept that the issue was appropriately considered by Dr McLean and Dr Henderson and did not require input from Mr Pepper on an issue he considered resolved and unnecessary.
I accept and adopt as my reasons Dr McLean’s evidence that a BDAR is required to address the impacts of the development on the Squirrel Glider. I accept the agreement of Dr Henderson and Dr McLean and find that the BDAR has been prepared in accordance with the requirements of the Biodiversity Conservation Act 2016 (NSW) (BC Act) and Biodiversity Conservation Regulation 2017 (NSW) (BC Reg) and that the impacts have been appropriately minimised and will not result in a serious and irreversible impact on the Squirrel Glider. I accept the agreement of all experts that there are no impacts on microbats and owls for the reasons given in the Ecology JER. I accept the submissions of Council and Optus that all the ecology issues in both SOFACs have been resolved. On the basis of the evidence of the experts, I am satisfied that the provisions of the BC Act particularly ss 6.4, 6.15, 7.2, 7.7, 7.13 of the BC Act and s 6.6 of the BC Reg have been met. There are no serious and irreversible impacts to warrant refusal pursuant to s 7.16 of the BC Act. The Final BDAR is appropriately certified and addresses the requirements. On the basis of the Ecological Report, BDAR and evidence of the experts, I am satisfied that the proposed development will not cause a serious and irreversible impact to a threatened species. Appropriate conditions of consent will be imposed in relation to credits, included in Annexure A.
I am satisfied that there are no remaining contentions or issues relating to ecology that would warrant refusal of the DA.

The final notification of the amended DA (amended prior to the hearing) was between 21 October 2025 and 21 November 2025. 63 submissions were received in support of the proposal and six in opposition. Reference was made to the review application, which I note does not form part of this appeal. No amendments made during the hearing required renotification.
During the hearing Mr Denny, in his other capacity as a community objector (and directly adjoining), also provided a further submission. Being mindful of Mr Denny’s role as a party to the proceedings and that amended contentions require leave of the Court, the further submission was partially allowed into evidence subject to a limiting statement about its status as a community submission. Parts of the submission not allowed were in relation to EME and coverage, on the basis that these were previous contentions not pressed or were concerns that were akin to contentions that needed to be pled in that manner.
Section 4.15(1)(d) of the EPA Act requires the consideration of any community submissions made in accordance with the EPA Act or regulations. In considering the submissions, I am mindful that the concerns of the public do not rise to a contested issue that joins the parties (see: Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 at [24] and [78]). It is in this context that I consider the community submissions. I have considered the submissions as provided to the Court by Council as relevant to the proposed development and subject DA.
The overwhelming majority of submissions support the proposed development for the following reasons, which I accept will benefit both individuals and the community. The submissions that supported the development include:
Critical need for reliable mobile coverage.
Need for coverage during emergencies or a medical incident, as well as communication with emergency services. There is only one road in and out of the area.
Poor connectivity for businesses and emergency services.
Ability to connect at home, including telehealth services, business needs (including working from home) and personal banking. Inability to receive phone calls from family members in hospital due to the lack of service.
Aging population and need for mobile connectivity. Concerns about the safety and wellbeing of more senior residents.
Lack of connectivity impacting social cohesion.
Lack of impacts from the proposal.
Lack of evidence about EME or other impacts on health.
The proposal will be a vital community asset.
I accept that the proposed development is clearly in the public interest and will provide essential infrastructure.
Having considered the support for the proposal and concerns raised, I find that none of the concerns raised warrant refusal of the DA for the following reasons.
Visual impacts, proximity to dwellings and alternate sites – addressed previously in the above findings.
Aboriginal cultural heritage – addressed previously in the above findings.
Health impacts – addressed in the previous findings, in that there was no evidence of health impacts that would be caused by the proposal.
APZ and bushfire protection – addressed in the previous findings above.
Inconsistent or insufficient information – I am satisfied that the amended DA has addressed any relevant inconsistencies and provided an adequate level of detailed information to support the DA.
Service coverage is already available – addressed in the previous findings above.

Optus Mobile Pty Ltd v Central Coast Council

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

The site and context

Key Issues

Expert Evidence

Visual impacts from the proposed telecommunications tower, alternative sites and the Guidelines

Evidence

Submissions

Consideration and findings

The Guidelines

Principle 1: Design and site telecommunications facilities to minimise visual impact

View impacts from the Denny Land

Stewart Street and Wards Hill Road

Hawks Head Road, Bouddi National Park

Hardys Bay, Brisbane Water and its foreshore areas

Setting

Visual impacts for alternative sites

Heritage

Principle 2: Co-locate telecommunications facilities wherever practical

Principle 3: Meet health standards for exposure to radio emissions

Principle 4: Minimise disturbance and risk, and maximise compliance

Principle 5: Undertake an alternative site assessment for new mobile phone base stations

Remaining considerations in the Guidelines

Objectives of the C4 zone

CCDCP

Ecology and procedural fairness

Evidence

Submissions

Consideration and findings

Bushfire and the APZ

Submissions

Consideration and findings

Arboriculture

Community submissions

Jurisdiction

Conclusion

Orders

S Porter

Commissioner of the Court

Parties

Legislation Cited (12)

Cases Cited (18)