513-517 Princes Highway Pty Limited v Bayside Council

[2020] NSWLEC 1657

Land and Environment Court

New South Wales

Medium Neutral Citation:

513-517 Princes Highway Pty Limited v Bayside Council [2020] NSWLEC 1657

Hearing dates:

Conciliation conference on 15 December 2020

Date of orders:

17 December 2020

Decision date:

17 December 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Consent is granted to 2018/94 for:

(a)  the replacement of an existing advertising sign with an LED digital display advertising sign on the corner of Princes Highway, Tramway Arcade and The Seven Ways, 511 Princes Highway, Rockdale;

(b)   construction of a new art deco façade on the first level above the street awning;

(c)  removal of a business identification wall sign (located on the wall above the awning to the Princes Highway frontage), removal of business identification sign (above the door and shop windows to the Princes Highway frontage), and removal of business identification sign (above the door and shop window to the Princes Highway, Tramway Arcade frontage and splay corner);

subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Rockdale Local Environmental Plan 2011

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 64—Advertising and Signage

Cases Cited:

Apparition Media Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1590

Category:

Principal judgment

Parties:

513-517 Princes Highway Pty Limited (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
P Clarke (Solicitor) (Applicant)
A Epstein (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2019/318119

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise following the Council’s refusal of a development application (DA2018/94) seeking approval for the erection of two digital LED screen advertising structures (billboard) for general purpose advertising and alterations to the parapet of the building at 511 Princes Highway, Rockdale (the Site).

2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and the application was amended with the leave of the Court in July 2020 to rely upon amended plans (Revision K) and reports.

3. The proposed development replaces an existing identification/advertising structure, which is not approved for general purpose advertising. The new structure is to be increased in height by 0.94m and is comprised of two LED screens. The larger screen, on the south elevation of the building has an area of 19.5m². The second screen, on the south-western splay frontage of the building is also 19.5m². Collectively, the total area of the screens is 39m², and the structure has a height of 3.36m and a combined width of 12.23m.

4. The advertising structures are proposed to operate between 6.00am and 11.00pm each day. The advertisements will be of a general commercial content with a dwell time of 30 seconds. The intention is to use the two screens for the display of one large advertisement with a wraparound or panoramic presentation.

Background to the s34 agreement

5. Initially, the hearing of this matter was listed to commence onsite on 15 November 2020. Before that happened, the parties requested that the hearing be adjourned, and the matter referred to a s34 conciliation. I was the presiding Commissioner.

6. At the conciliation conference the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

7. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application on a conditional basis.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement dated 15 November 2020.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act for the following reasons.

10. The development application was notified in accordance with the requirements of the EPA Act, Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and Council’s Development Control Plan and Community Participation Plan.

11. No submissions were received by Council in response to the notification.

Rockdale Local Environmental Plan 2011

12. Pursuant to the Rockdale Local Environmental Plan 2011 (RLEP), the site is located within the B2 Local Centre zone.

13. The proposed development is an innominate permissible use in the B2 Local Centre zone.

14. For completeness, it is noted that the following clauses of the RLEP are not applicable to the proposed development or otherwise create a jurisdictional bar to the grant of consent:

• Clause 6.1 of the RLEP is not applicable as the development application does not propose any works below the natural ground surface, or any works by which the water table is likely to be lowered such to impact on Acid Sulfate Soils.

• Clause 6.2 of the RLEP is not applicable as the development application does not propose any earthworks.

• Clause 6.5 of the RLEP is not applicable as the development application does not propose development on land in the foreshore area.

• Clause 6.6 of the RLEP is not applicable as the site is not land to which cl 6.6(2) applies in relation to flood planning.

• Clause 6.8 of the RLEP is not applicable as the site is not land to which cl 6.8(2) applies in relation to biodiversity protection.

• Clause 6.9 of the RLEP is not applicable as the site is not land to which cl 6.9(2) applies in relation to riparian land, watercourses and artificial waterbodies.

• Clause 6.10 of the RLEP is not applicable as the site is not land to which cl 6.10(2) applies in relation to wetlands.

• Clause 6.11 of the RLEP is not applicable as the site is not land to which cl 6.11(2) applies in relation to active street frontages.

• Clause 6.13 of the RLEP is not applicable as the development application does not propose development for the purposes of sex services premises.

• Clause 6.14 of the RLEP is not applicable as the development application does not seek consent for development to which cl 6.14(2) applies.

15. The parties are otherwise satisfied that consent can be granted to the development application in consideration of the matters at:

• Clause 6.3(3) of the RLEP relating to aircraft noise.

• Clause 6.4(2) of the RLEP relating to airspace operations, as the Council is satisfied that the proposed development will not penetrate the Limitation or Operations Surface and therefore consultation with the relevant Commonwealth body is not required (see letter from Sydney Airports dated 10 May 2018 – tab 7 of Council Bundle).

• Clause 6.7(3) of the RLEP relating to stormwater management.

• Clause 6.12 of the RLEP relating to essential services.

State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

16. Clause 7(1)(a) of SEPP 55 requires the consent authority to consider whether the land is contaminated. Council records indicate that the site has been used for commercial purposes for a significant period of time with no prior land uses. In this regard, it is considered that the site poses no risk of contamination and therefore, no further consideration is required under cl 7(1)(b) and (c) of SEPP 55 and the land is considered to be suitable for ongoing commercial land use.

State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64)

17. The proposed development is a “wall advertisement” for the purposes of cl 22 of SEPP 64.

18. Pursuant to cl 11 of SEPP 64, a person must not display an advertisement, except with the consent of the consent authority or except as otherwise provided by this Policy.

19. Clause 8 of SEPP 64 provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:

(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.

20. The parties agreed and I accept on the evidence filed with the Court that the proposed development is consistent with the objectives of SEPP 64 and satisfies the assessment criteria in Sch 1.

21. Clause 13(1) of SEPP 64 (which has a degree of overlap with cl 8) also provides that a consent authority must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires:

(a) is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(c) satisfies any other relevant requirements of this Policy.

22. Pursuant to cll 17 and 18 of SEPP 64, the application was forwarded to RMS who provided its concurrence (by way of letter dated 28 June 2018 – see folio 309 at tab 8 of Council Bundle).

23. For the purposes of cl 13(1)(c), the other relevant requirements of SEPP 64 which apply to the proposed development is cl 22 which provides the following development standards (see Apparition Media Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1590 at [16 ):

“…

(1) Only one wall advertisement may be displayed per building elevation.

(2) The consent authority may grant consent to a wall advertisement only if:

(a) the consent authority is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed, and

(b) for a building having:

(i) an above ground elevation of 200 square metres or more—the advertisement does not exceed 10% of the above ground elevation, and

(ii) an above ground elevation of more than 100 square metres but less than 200 square metres—the advertisement does not exceed 20 square metres, and

(iii) an above ground elevation of 100 square metres or less—the advertisement does not exceed 20% of the above ground elevation, and

(c) the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards require a greater protrusion, and

(d) the advertisement does not protrude above the parapet or eaves, and

(e) the advertisement does not extend over a window or other opening, and

(f) the advertisement does not obscure significant architectural elements of the building, and

(g) a building identification sign or business identification sign is not displayed on the building elevation.

(2A) In the case of the display of a wall advertisement on transport corridor land, subclause (2) does not apply and the consent authority may grant consent only if satisfied that the advertisement is consistent with the Guidelines.

(3) In this clause, building elevation means an elevation of a building as commonly shown on building plans.”

24. The parties agree and I accept on the evidence before me that consent can be granted to the development application in consideration of the matters at cl 22(2).

25. The parties agree and I accept on the evidence before me that the advertisement is integrated with the design of the building on which it is to be displayed (pursuant to cl 22(2)(a)).

26. In relation to cl 22(b)(ii), the parties note that “Advertising display area” is defined under cl 4 of SEPP 64 as:

subject to subclause (2), the area of an advertisement or advertising structure used for signage, and includes any borders of, or surrounds to, the advertisement or advertising structure, but does not include safety devices, platforms or lighting devices associated with advertisements or advertising structures

27. Clause 4(2) referred to above states as follows: -

The advertising display area of an advertising structure that contains advertising on two or more sides is to be calculated separately for each side and is not the sum of the display areas on all sides.

28. Further cl 22(3) of SEPP 64 provides:

In this clause, building elevation means an elevation of a building as commonly shown on building plans.

29. The parties agree and I accept on the evidence before me that the proposed advertising display area of the proposed advertising structure has two sides. The first side comprises the eastern elevation facing Princes Highway and a second side is the southern elevation facing Tramway Arcade. On this point, the parties note the agreed position of their respective town planners in the Joint Experts Report – Planning (at par 68) that there are “two elevations (of) the building”.

30. The parties have formed the agreed position that when one assesses each of the proposed display areas on the two sides, the following figures are arrived at: -

1. Eastern Elevation facing Princes Highway. The proposed side has an area of 145.9m² with a display area of the new sign of 19.5m². Under cl 22(2)(b) of SEPP 64, the proposed sign must not have an area exceeding 20m². The proposed sign has an area of 19.5m² and therefore complies.

2. Southern Elevation facing Tramway Arcade. The proposed southern side has a proposed façade of 132.98m² and a proposed sign display area of 19.5m². Under cl 22(2)(b) of SEPP 64, the proposed sign must not have an area exceeding 20m². The proposed sign has an area of 19.5m² and therefore complies.

31. I agree with their interpretation of the clause and the development is therefore compliant.

32. In relation to the remaining requirements of cl 22(2)(c)-(g) of SEPP 64, the proposed development does not:

• Protrude more than 300 millimetres from the wall;

• Protrude above the parapet or eaves;

• Extend over a window or other opening;

• Obscure significant architectural elements of the building, and

• Result in a building identification sign or business identification sign being displayed on the building elevation.

Conclusion

33. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

34. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to 2018/94 for:

1. the replacement of an existing advertising sign with an LED digital display advertising sign on the corner of Princes Highway, Tramway Arcade and The Seven Ways, 511 Princes Highway, Rockdale;

2. construction of a new art deco façade on the first level above the street awning;

3. removal of a business identification wall sign (located on the wall above the awning to the Princes Highway frontage), removal of business identification sign (above the door and shop windows to the Princes Highway frontage), and removal of business identification sign (above the door and shop window to the Princes Highway, Tramway Arcade frontage and splay corner);

subject to the conditions at Annexure A.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (226009, pdf)

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Decision last updated: 18 December 2020