Adbooth Pty Limited v Ryde City Council

[2006] NSWLEC 783

Reported Decision: (2006) 150 LGERA 401

Land and Environment Court

of New South Wales

CITATION:	Adbooth Pty Limited v Ryde City Council [2006] NSWLEC 783
PARTIES:	APPLICANT Adbooth Pty Limited RESPONDENT Ryde City Council
FILE NUMBER(S):	10715; 10804; 10805 of 2006
CORAM:	Preston CJ
KEY ISSUES:	Appeal :- planning appeal - advertising signs on telephone booths - permissibility - whether principal purpose of telephone booths to provide improved safety, amenity and convenience for pedestrians
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 (NSW) s 4(1) Telecommunications Act 1997 (Cth) cl 6(3) Pt 1 sch 3
CASES CITED:	Daniel v Manly Municipal Council (1975) 34 LGRA 14; Green v Premier Glynrhonwy Slate Co Limited [1928] 1 KB 561; Re The Licensing Ordinance (1968) 13 FLR 143; Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
DATES OF HEARING:	07/12/2006
EX TEMPORE JUDGMENT DATE:	12/07/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC SOLICITORS Gilbert & Tobin RESPONDENT Mr A Seeton (solicitor) SOLICITORS Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

7 DECEMBER 2006

10715 OF 2006
10804 OF 2006
10805 OF 2006

ADBOOTH PTY LIMITED V RYDE CITY COUNCIL

JUDGMENT

1 HIS HONOUR: Adbooth Pty Limited has a national contract with Telstra to manufacture, install and maintain telephone booths across New South Wales. One of the contractual obligations is to secure development consents for advertising signs on these telephone booths.

2 Three of the sites for a telephone booth with advertising are in the road reserve adjacent to 10 Ethel Street, Eastwood, 176 Rowe Street, Eastwood and 1019 Victoria Road, West Ryde. All three sites are in the local government area of the City of Ryde.

3 There are two types of telephone booth proposed. A traditional rectangular box cabinet is proposed for the sites at Ethel Street, Eastwood and Victoria Road, West Ryde and a pedestal type booth for Rowe Street, Eastwood.

4 Development consent is not required for the installation and use of the telephone booth and telephone system. Public pay phone cabinets or booths have been determined by the relevant Commonwealth Minister to be low impact facilities under cl 6(3) of Pt 1 of Sch 3 of the Telecommunications Act 1997 (Cth). A telecommunications carrier or its agent may install and use a low impact facility despite any law of a State.

5 The advertising on the telephone booth is in a different position. The Ministerial determination that made a public pay phone cabinet or booth a low impact facility excepted cabinets or booths used to display commercial advertising other than advertising related to the supply of standard telephone services. Accordingly, commercial advertising on a public pay phone cabinet or booth is not exempt from the laws of a State under the Telecommunications Act.

6 The relevant environmental planning instrument under the Environmental Planning and Assessment Act 1979 (NSW) that applies to the City of Ryde is Ryde Planning Scheme Ordinance. The ordinance classifies land in the City of Ryde into various zones. Each of the three sites the subject of Adbooth’s development applications are in the Business (Urban Village) 3(uv) zone. Clause 22 of the ordinance controls development by prescribing the permissibility of development in each of the zones by way of a development control table.

7 Under cl 22, development in the Business (Urban Village) 3(uv) zone may be carried out or used for any purpose other than those referred to in column II or V of the table with development consent. Advertising signs are not referred to in columns II or V of the table. Clause 22 and the table to it are, however, expressly made subject to other parts of the ordinance, including Pt VII. Part VII includes cl 42. Clause 42 deals specifically with advertising signs. It limits the classes of advertising signs that are permissible with consent, first by the content of the advertisement and, secondly, by the type of structure upon which the advertising sign may be placed.

8 Clause 42 provides in part:

“(1) The consent of the Council is required to display an advertising sign.

(2) An advertising sign may only provide information about a business, industry or profession carried on where it is displayed. The information may include details about the use of the land or a building, goods manufactured or offered for sale, services offered and the name and address of the owner or occupier.

(3) The Council may consent to the display of an advertising sign that does not comply with subcl (2) where that advertising sign is part of a structure the principal purpose of which is to provide improved safety, amenity and convenience for pedestrians, and the structure is located on or adjacent to a road.”

9 The term “advertising sign” is defined in cl 3(1) of the ordinance to mean:

“Any word, letter, image, device or representation or combination of them used for the purpose of advertising, announcement or display. It includes a structure used principally for the display of an advertising sign”.

10 The effect of cl 42 is to define the class of advertising signs that are permissible with consent. Being a specific provision, cl 42 prevails over the general control in cl 22. The consequence for this case is that the permissibility of the advertising signs on the telephone booths at the three sites proposed by Adbooth depends on whether the advertising signs fall within either of the requirements as to content of the advertisement (cl 42(2)) or type of structure on which the advertising sign is to be placed (cl 42(3)). If either requirement is satisfied, the advertising signs will be permissible. If neither requirement is satisfied, the advertising signs will not be permissible.

11 Adbooth does alternatively contend, however, that even in the event that the advertising signs satisfy neither requirement, development consent could still be granted by the making and upholding of an objection under State Environmental Planning Policy No 1 - Development Standards to compliance with the provisions of cl 42(2) and (3). This submission depends on the requirements of cl 42(2) and (3) being “development standards” within the meaning of that term in s 4(1) of the Environmental Planning and Assessment Act.

12 The Council disputes this contention. This alternative submission of Adbooth only needs to be addressed if the advertising signs proposed by Adbooth do not meet either requirement in cl 42(2) or (3) of the ordinance.

13 Both Adbooth and the Council agree that the information which will be conveyed by the advertising signs on the telephone booths at the three sites will not “only provide information about a business, industry or profession carried on where [the advertising sign] is displayed”. Accordingly, the advertising signs will not satisfy the content requirement in cl 42(2) of the ordinance.

14 The debate between Adbooth and the Council is whether the advertising signs will be part of a structure of the type required by cl 42(3) of the ordinance. An advertising sign will be of a type required by cl 42(3) if it satisfies a purpose requirement (that the advertising sign is part of a structure the principal purpose of which is to provide improved safety, amenity and convenience for pedestrians) and a locational requirement (that the structure is located on or adjacent to a road).

15 The parties agree that the advertising signs at the three sites satisfy the locational requirement. The parties disagree, however, that the advertising signs satisfy the purpose requirement.

16 The Council submits the advertising signs do not satisfy the purpose requirement in cl 42(3) for three reasons.

17 First, the advertising signs will be fitted to the cabinet or booth, not to the pay phone itself. The advertising signs will, therefore, be part of the structure of the cabinet or booth, but will not be part of the structure of the pay phone. The two structures are different. Although the pay phone may have a purpose of providing improved safety, amenity or convenience for pedestrians (although not all three - see the second argument below) the cabinet or booth itself does not have such a purpose.

18 Secondly, the requirement that the principal purpose of the structure be “to provide improved safety, amenity and convenience for pedestrians” is conjunctive and not disjunctive. The word “and” generally does not mean “or”: Green v Premier Glynrhonwy Slate Co Limited [1928] 1 KB 561 at 568, Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260 at 263 [13] and Daniel v Manly Municipal Council (1975) 34 LGRA 14 at 18-19.

19 There are two exceptions to this general rule. First, if “and” was given its natural meaning, the result would be so extraordinary that in order to make sense of the provision the Court would be obliged to read the word “and” as if it had been “or”: See Re The Licensing Ordinance (1968) 13 FLR 143 at 146-147. This exception does not apply in this case. No absurdity results by affording the word “and” in the phrase as having its natural meaning.

20 The second exception is where there is a list of items and the items are joined by “and” and the list is governed or affected by words which showed that the list was a list of alternatives. In such a case, the word “and” which is used to join the items in the list is truly cumulative. It links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorise the class, as a whole, as a class of alternatives: see Re The Licensing Ordinance (1968) 13 FLR 143 at 147. The phrase in cl 42(3) is not an example of this second exception.

21 Accordingly, a structure will only satisfy the requirement in cl 42(3) if the principal purpose of the structure is to provide all of the facilities of improved safety, amenity and convenience for pedestrians. The advertising signs at the three sites do not have as their principal purpose the provision of all three of these facilities.

22 Thirdly, not only must the purpose of the structure be to provide all three of the facilities of improved safety, amenity and convenience for pedestrians, that purpose must be the “principal” purpose. Principal means “first or highest in rank, importance, value, et cetera; chief; foremost”: The Macquarie Dictionary.

23 The principal purpose of the advertising signs at the three sites is not to provide improved safety, amenity and convenience for pedestrians. Rather, each of the structures is merely the cabinet or booth, the principal purpose of which is to house, accommodate and protect the pay phone. Alternatively, if the structure is an integrated structure of the cabinet or booth and the pay phone, the purposes are two-fold, neither of which dominate, being to house a pay phone and to accommodate advertising signage. While this structure may provide some improved safety or amenity or convenience for pedestrians, these are not the principal purposes of the structure.

24 Adbooth submits the advertising signs at the three sites do satisfy the purpose requirement in cl 42(3) for three reasons.

25 First, the structure, of which the advertising sign will be a part, is an integrated structure comprising the pay phone and the cabinet or booth. It is artificial to break the structure down into its component parts.

26 Secondly, the requirement that the principal purpose of the structure be “to provide improved safety, amenity and convenience for pedestrians” is disjunctive or dispersive, not conjunctive. The notions of safety, amenity and convenience are not a necessary part of the one genus or concepts which are ordinarily thought to be coincident: See Pearce and Geddes Statutory Interpretation in Australia, 6th edition at [2.25] - [2.26].

27 Accordingly, it is sufficient that the principal purpose of the structure be to provide any one of the facilities of improved safety, amenity or convenience for pedestrians.

28 As a matter of fact, however, the advertising signs will be a part of structures that provide all three facilities of improved safety, amenity and convenience for pedestrians. The evidence of Mr Ingham, both in his statement of evidence to the Court (exhibit A) and in the joint report between Mr Ingham and Mr Smith (exhibit 7) establishes this three-fold purpose of the structures. In the joint report, Mr Ingham states:

“...there is no doubt that the telephone booths provide an amenity for pedestrians in that they allow pedestrians to make telephone calls to other persons which would not be possible if the telephone booths did not exist. The purpose of telephone booths being available in public places is to provide for the amenity of people in the community.

The convenience of pedestrians is satisfied because the telephone booths are located so as to be as convenient as possible to the greatest number of people. Without the telephone booths being available there would not be the possibility of them being convenient.

The concept of amenity and convenience also embraces the ideas that people in emergencies are able to make phone calls which would not otherwise be possible. They are also available for people to make calls requesting that they be picked up by another family member from wherever the telephone booth is located. There is therefore definitely in my opinion amenity and convenience for pedestrians from the provision of the telephone booths.

Thirdly, the matter of safety is one which is not quite as clear as that of amenity and convenience, but in my opinion, the provision of telephone booths does provide some extent of safety because anyone who considers they may be being followed can make an urgent phone call and the provision of lighting within the telephone booths makes the telephone booths generally safer at night than it would otherwise. This additional safety is also a result of the increased lighting on the rear side of the telephone booth.

It is therefore my opinion that each of the matters of safety, amenity and convenience for pedestrians are satisfied by the proposed telephone booths.”

29 Further, the provision of these facilities will be an improvement compared to the situation of not having the telephone cabinets or booths at the three sites.

30 Thirdly, the purpose of each of the proposed structures, of which the advertising sign will be a part, of providing improved safety, amenity and convenience for pedestrians is the principal purpose: see the evidence of Mr Ingham.

31 In my opinion, the advertising signs are part of structures of the type specified in cl 42(3) of the ordinance.

32 The structure, of which the advertising sign will be a part, is an integrated structure of the pay phone and the cabinet or booth around it. The function of the cabinet or booth is, in part, to house and protect the pay phone, but also it is to afford users of the pay phone protection from inclement weather and external noise as well as offer privacy to the user of the pay phone. The cabinet or booth is an integral part of the facility of the pay phone provided.

33 The integrated pay phone structure has as its purpose the provision of improved safety, amenity and convenience for pedestrians. The evidence of Mr Ingham, quoted above, establishes that the structure provides all three of these facilities of improved safety, amenity and convenience. Mr Smith did not give evidence to the contrary.

34 Moreover, the provision of all three facilities of improved safety, amenity and convenience is the principal purpose of each of the structures proposed at the three sites. As I have noted above, it is artificial to break down the purpose of the structures by reference to component parts of the structures such as the pay phone and the cabinet or booth around the pay phone. The relevant purpose is that of the integrated structure. The integrated structure provides a safe, amenable and convenient facility for pedestrians to use a public pay phone. The cabinet or booth does not merely house the pay phone, it provides the environment in which the pay phone may be used. Viewed as an integral whole, the telephone cabinets and booths as have their principal purpose the provision of improved safety, amenity and convenience for pedestrians.

35 The structures at the three sites do incorporate advertising signs. The proposed structures, therefore, can be said to have as a purpose the display of advertising signs. However, this does not necessarily have the consequence that the proposed structures cannot have as their principal purpose the provision of improved safety, amenity and convenience for pedestrians.

36 The concept of “the principal purpose” of the structure in cl 42(3) must be wide enough to accommodate the existence of a purpose of the structure being to display advertising signs. This is because the advertising sign is required to be part of the structure, the principal purpose of which is to be determined. If the advertising sign is part of the structure, then it must logically follow that a purpose of the structure will be to display an advertising sign. Hence, the adjective of “principal” in describing the purpose of the structure cannot mean “only”. Rather, it means that the required purpose of providing improved safety, amenity and convenience is the first or highest in rank or importance among the purposes of the structure.

37 The structures proposed at the three sites in this case have amongst their purposes that of providing improved safety, amenity and convenience as well as displaying advertising signs, but the former ranks as the first in importance.

38 Furthermore, the character, extent and other features of the advertising proposed on each structure at the three sites are not such as to cause the purpose of the structure of providing improved safety, amenity and convenience to lose its rank as being the principal purpose.

39 Finally, the principal purpose of the structure is to provide these facilities of improved safety, amenity and convenience “for pedestrians”. A person has to be on foot to walk to, enter and use the pay phone cabinets or booths. They are there for pedestrians. The fact that some persons might have walked further than others to use the telephone cabinets or booths is irrelevant. A person who parks their car in the street and walks to the telephone booth or a cyclist who cycles to and leaves the cycle outside the telephone booth can still be classified as a pedestrian at the time of their use of the telephone cabinet or booth. This is the evidence of Mr Ingham in the joint report. Even if a person who was not to be classified as a pedestrian were to use the telephone booth on occasions, this does not deny the fact that the principal purpose of the telephone booth is to cater for persons who are pedestrians.

40 For these reasons, each of the structures on the three sites are of the type specified in cl 42(3) of the ordinance. The proposed advertising signs are part of those structures. The facultative power in cl 42(3) is, therefore, enlivened and consent can be granted to the proposed advertising signs.

41 This conclusion makes it unnecessary to determine Adbooth’s alternative argument that cl 42(2) and (3) are development standards, compliance with which is amenable to be dispensed with under State Environmental Planning Policy No 1 - Development Standards.

42 In determining whether consent for the display of the advertising signs should be granted, it is necessary to consider the matters in cl 42(4) of the ordinance. The Council does not raise any of these matters in objection to the proposed advertising signs for these three sites. The Council accepts that the proposed advertising signs on these three sites are acceptable by reference to each of these matters. Each of the matters in cl 42(4) have been addressed in Adbooth’s statement of environmental effects which accompanied each of the development applications: see exhibit 6, pp 41-42, 66 and 92. Mr Ingham also evaluated for each of the three sites each of the matters in cl 42(4) and concluded that the advertising signs are acceptable: see Mr Ingham’s statement of evidence, exhibit A, pp 5-7 of each of the three reports on each of the three sites. I agree with the merit evaluation of the three signs on these three sites as being acceptable.

43 The parties have agreed proposed draft conditions of consent. They are contained in exhibit 9, as amended by agreement. These agreed conditions are, in my opinion, appropriate to mitigate any adverse impacts of the signs on these three sites.

44 Accordingly, the appeals should be upheld and development consent granted to each of Adbooth’s development applications for these three sites.

45 The Court makes the following orders:

In proceedings 10715 of 2006 :

(1) The appeal is upheld.

(2) Development consent is granted to the development application for the purposes of display of an advertising sign (on a new telephone booth) on the road reserve adjacent to 10 Ethel Street, Eastwood, subject to the conditions in annexure A.

(3) The exhibits may be returned.

(4) Each party pay their own costs.

In proceedings 10804 of 2006 :

(1) The appeal is upheld.

(2) Development consent is granted to the development application for the purposes of display of an advertising sign (on a new telephone booth) on the road reserve adjacent to 176 Rowe Street, Eastwood, subject to the conditions in annexure A.

(3) The exhibits may be returned.

(4) Each party pay their own costs.

In proceedings 10805 of 2006 :

(1) The appeal is upheld.

(2) Development consent is granted to the development application for the purposes of display of an advertising sign (on new telephone booth) on the road reserve adjacent to 1019 Victoria Road, West Ryde, subject to the conditions in annexure A.

(3) The exhibits may be returned.

(4) Each party pay their own costs.

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