In a recent procedural ruling, the Land and Environment Court allowed a nearby landowner to join a Class 1 appeal concerning a 30-metre telecommunications tower.

The Background

Optus had lodged a development application with Central Coast Council for a 30-metre monopole and associated equipment at Killcare Heights. Council refused the application, citing concerns including visual impact, biodiversity, Aboriginal heritage, bushfire risk, and electromagnetic emissions. Optus subsequently commenced a Class 1 appeal.

The subject land is leased to Optus by Central Coast Council, with the lease running until 2041 and including a commercial rent. That lease was not disclosed until shortly before the conciliation conference, and understandably drew the attention of a nearby neighbour, Mr Anthony Denny.

Mr Denny, who owns land directly adjacent to the proposed facility, sought leave to be joined to the proceedings. He had made detailed submissions during the DA process and had already engaged expert witnesses to support his concerns.

Submissions in Court

Optus opposed the joinder application, arguing that:

• Council was already defending the refusal, so no additional party was needed;
• Mr Denny’s views and concerns were already considered in the Council’s reasons for refusal; and
• Allowing joinder would add cost, complexity, and delay to the proceedings.

Council, while not supporting joinder, indicated it would abide by the Court’s decision.

The Court’s reasoning

The Court granted the application for joinder, relying on section 8.15(2) of the Environmental Planning and Assessment Act 1979. It was held that the test was whether joinder was:

1. In the interests of justice;
2. In the public interest; or
3. Necessary because an issue would not otherwise be sufficiently addressed.

The Court determined:

• The existence of a lease between Council and Optus gave rise to a potential perception that Council might not act with full independence. While this didn’t create an actual conflict, it meant the usual “neutral contradictor” role might be compromised.
• The range of issues raised – including site suitability, visual impact, heritage, bushfire and electromagnetic emissions – meant that additional contradictors with their own experts could assist the Court.
• Mr Denny had acted promptly, already had experts engaged, and was ready to contribute constructively at the upcoming section 34 conciliation conference.

Importantly, the Court was not persuaded that the joinder would cause unacceptable delay or duplication.

Key takeaways

1. Joinder is more likely when Council is conflicted – Where the consent authority has a commercial relationship with the applicant (e.g. as landlord), the Court may consider it desirable for another party to assist with adversarial testing.
2. Neighbours can be heard – Objectors who raise new perspectives, engage experts, and act early may be allowed to join, especially in complex or controversial matters.
3. Expert preparation matters – The fact that Mr Denny had already engaged experts who could meaningfully participate in the conciliation conference was a key factor in the Court’s decision.
4. Council’s neutrality can be tested – Even if a Council maintains it is defending a refusal, the optics of an undisclosed lease can trigger judicial scrutiny – particularly where rent is being paid by the party seeking consent.

While joinder remains the exception rather than the rule in Class 1 proceedings, this case shows that it can be granted where the Court is satisfied that the interests of justice or public interest would be served. It’s a reminder that third-party objectors can (and sometimes should) become full participants, especially where the existing parties may not be in a position to present the full picture.