Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council
[2012] NSWLEC 1093
•13 April 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council [2012] NSWLEC 1093 Hearing dates: 19, 20 December 2011 Decision date: 13 April 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Paragraphs [84]-[85]
Catchwords: Development application - Building certificate - Section 121B Order - advertising signage Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Lane Cove Local Environmental Plan 2009
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy No 64 - Advertising and SignageCases Cited: Administration and Marketing Solutions Pty Ltd v Tamworth Regional Council [2011] NSWLEC 1343
APN Outdoor (Trading) Pty Ltd v Council of the City of Sydney
Ireland v Cessnock City Council (1999) 110 LGERA 311
Lederer v Sydney City Council (2001) 119 LGERA 350
Mineral Wealth Pty Ltd v Gosford City Council (2003) 127 LGERA 74
Stutchbury v Pittwater Council (1999) 105 LGERA 1
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276
Van Haasteren v South Sydney Council (2000) 109 LGERA 252Category: Principal judgment Parties: 10458 of 2011:
Administration and Marketing Solutions Pty Ltd (Applicant)
Lane Cove Council (Respondent)
10512 of 2011:
Big Country Developments Pty Ltd (Applicant)
Lane Cove Council (Respondent)
10942 of 2011:
Administration and Marketing Solutions Pty Ltd (Applicant)
Lane Cove Council (Respondent)Representation: Mr N Eastman (Applicants)
Mr I Woodward, Storey & Gough Solicitors (Applicants)
Mr S Griffiths, Pikes Lawyers (Respondent)
File Number(s): 10458 of 2011 10512 of 2011 10942 of 2011
Judgment
There are three appeals before the Court relating to advertising signage on a building at 73 Longueville Road Lane Cove (the building).
The building is on the corner of Longueville Road and Birdwood Avenue, and has three street frontages, to Longueville Road, Birdwood Avenue, and Birdwood Lane. The building is single level at Longueville Road and two levels at the rear facing Birdwood Lane. The building is subdivided into a number of small retail shops including Flight Centre on Longueville Road, Subway on the corner of Longueville Road and Birdwood Avenue, and a pizza shop fronting Birdwood Lane. Units 5-7 of the building are accessed on a pedestrian ramp leading from the corner of Longueville Road and Birdwood Avenue. Until 2010 Units 5-7 were used as a "Blockbuster" video store. In 2010 the use changed to that of a "Chemist Warehouse" pharmacy pursuant to a complying development certificate issued by the Council. Chemist Warehouse signage was erected on the building in late 2010 in the course of the fit out of the building.
Appeal 10458 of 2011 is an appeal under s149F of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the Council to issue a building certificate in relation to the advertising signage (the Building Certificate appeal). The applicant in these proceedings is Administration and Marketing Solutions Pty Ltd (AMS), a company which provides administration and marketing services to the various pharmacies operating under the Chemist Warehouse branding.
Appeal 10512 of 2011 is an appeal under s121ZK of the Act against an Order issued under s121B (Item 2(a)) of the Act in relation to the advertising signage (the Order appeal). The applicant in these proceedings is Big Country Developments Pty Ltd (Big Country), the owner of the building.
Appeal 10942 of 2011 is an appeal under s 97(1) of the Act against the deemed refusal of a development application for the erection of advertising signage (the DA appeal). The development application was lodged with the consent of the owner of the building by AMS, which is the applicant in these proceedings.
Background
On 18 March 2011 the Council issued a Notice of Intention to Serve an Order under s 121H of the Act to Big Country on the ground that the advertising signage was installed without prior development consent.
On 25 March 2011 AMS lodged an application under s 149B of the Act for a building certificate. That application included a plan showing 9 signs, being three weathertex signs, three illuminated lightboxes, and three window print. The details of fixings stated that the three weathertex signs were fixed with "nylon anchors 800 mm apart top & bottom"; the three illuminated lightboxes were fixed with "dynabolts fixed through frame structure"; and the window print signs were "self adhesive vinyl". The Council refused the application on12 April 2011 for the following reasons:
Unauthorised signage on building parapets, walls and windows. All signage is unacceptable and not complying with Council's Development Control Plan, Part N, Signage and Advertising.
AMS lodged an appeal on 1 June 2011.
The Council issued an Order under Item 2(a) of s 121B to Big Country. The order is undated and the Council contends it was posted on 2 June 2011. The Order required Big Country to:
Remove all advertising signage to windows and walls which has been installed without consent from a consent authority.
The Reasons for the Order were:
1. The advertising signage is installed without consent from a consent authority.
2.The advertising signage requires consent from a consent authority for the following reasons:
(a) The advertising signage to the windows is in contravention to Lane Cove Councils development Control Plan, Part N, Signage and Advertising, Clause 3.1, where the maximum allowable advertising space per window is 25% of the window.
(b) Advertising signage installed on the parapet of the building is unauthorised as no consent was given for the erection of the signage from a consent authority.
(c) Having regard to the direct presentation of the premises to the streetscape and the corner location, the combined effect of the advertising signage is visually intrusive and derogates from the amenity of the immediate locality.
Big Country lodged an appeal on 15 June 2011.
The Building Certificate and Order appeals were the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979 on 17 August 2011. The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented to Pearson C disposing of the proceedings.
On 5 September 2011 AMS lodged a development application (D168/11) seeking consent for "Erection of 14 signs on existing building". The plans forming part of the development application show four signs on the Birdwood Avenue elevation (signs 11, 12, 14 and 18) which AMS stated were replacements for signage for the former tenant Blockbuster Video approved by the Council in 1994, and 14 new signs. On the Birdwood Lane elevation the plans show nine signs, one being a flush wall sign and the others being window signs. The Longueville Road elevation shows one sign, an illuminated above awning flush wall sign on the splayed corner parapet. The remaining five signs on the Birdwood Avenue elevation are one illuminated above awning flush wall sign on the parapet, one flush wall sign, and three window film signs. On 17 October 2011 AMS lodged an appeal against the deemed refusal of the development application. On 18 October 2011 the Council refused consent.
The plans the subject of the Building Certificate appeal are Annexure A. The plans the subject of the DA appeal are Annexure B. Signs 1, 2, and 5 in the Building Certificate appeal are the same content and location as signs 10, 11 and18 in the DA appeal. Signs 3, 4, 6, 7, 8, and 9 in the Building Certificate appeal are in the same location as signs 13, 14, 15-17, 2 and 3, 1, 4, 6, and 8 in the DA appeal. The signage presently on the building, as at the date of the view, accords with that shown in the plans in the Building Certificate appeal, with the exception that sign 4 in the Building Certificate appeal (sign 14 in the DA appeal) is not present on that part of the wall facing Birdwood Avenue.
Planning controls
The building is in the B2 Local Centre zone under the Lane Cove Local Environmental Plan 2009 (the LEP), and development for the purpose of "signage" is permissible with consent. "Signage" is defined to mean:
signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following:
(a) an advertising structure,
(b) a building identification sign,
(c) a business identification sign,
but does not include a traffic sign or traffic control facilities.
The term "advertising structure" is defined to have the same meaning as in the Act, which defines the term as "a structure used or to be used principally for the display of an advertisement". The terms "building identification sign" and "business identification sign" are defined in the LEP:
building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services.
business identification sign means a sign:
(a) that indicates:
(i) the name of the person or business, and
(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and
(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,
but that does not contain any advertising relating to a person who does not carry on business at the premises or place.
State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) applies to signage that, under another environmental planning instrument, can be displayed with or without development consent, and is visible from a public place or public reserve. SEPP 64 does not apply to signage that is exempt development under an environmental planning instrument, or that is exempt development under SEPP 64.
Clause 8 of SEPP 64 applies to signage generally, and provides:
8 Granting of consent to signage
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.
The objectives in cl 3(1)(a) of SEPP 64 are:
3 Aims, objectives etc
(1) This Policy aims:
(a) to ensure that signage (including advertising):
(i) is compatible with the desired amenity and visual character of an area, and
(ii) provides effective communication in suitable locations, and
(iii) is of high quality design and finish, and
Schedule 1 of SEPP 64 contains Assessment Criteria relating to character of the area; special areas; views and vistas; streetscape, setting and landscape; site and building; associated devices and logos; illumination; and safety.
Part 3 of SEPP 64 applies to all signage to which SEPP 64 applies, other than the signage specified in cl9:
(a) business identification signs,
(b) building identification signs,
(c) signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it,
(d) signage on vehicles.
Clause 11 provides that a person must not display an advertisement except with the consent of the consent authority or as otherwise provided by SEPP 64. Clause 13 provides the matters for consideration, and states in subclause (1):
(1) A consent authority (other than in a case to which subclause (2) applies) 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.
Part 3 Div 3 provides for particular advertisements, including wall advertisements (cl 22).
The relevant definitions in SEPP 64 are:
advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement.
building identification sign means a sign that identifies or names a building, and that may include the name of a business or building, the street number of a building, the nature of the business and a logo or other symbol that identifies the business, but that does not include general advertising of products, goods or services.
business identification sign means a sign:
(a) that indicates:
(i) the name of the person, and
(ii) the business carried on by the person,
at the premises or place at which the sign is displayed, and
(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,
but that does not include any advertising relating to a person who does not carry on business at the premises or place.
signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes:
(a) building identification signs, and
(b) business identification signs, and
(c) advertisements to which Part 3 applies,
but does not include traffic signs or traffic control facilities.
wall advertisement means an advertisement that is painted on or fixed flat to the wall of a building, but does not include a special promotional advertisement or building wrap advertisement.
Subdivision 36A Signage (replacement of identification signs) of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP) provides:
2.72A Specified development
The replacement of:
(a) an existing building identification sign or the content of such a sign, or
(b) an existing business identification sign or the content of such a sign,
is development specified for this code.
2.72B Development standards
The standards specified for that development are that the development must:
(a) replace a lawful sign, and
(b) not be greater in size than the sign that is replaced, and
(c) not be a sign that is flashing or animated, and
(d) not involve any alteration to the structure or vessel on which the sign is displayed, and
(e) not obstruct or interfere with traffic signs.
The Lane Cove Development Control Plan 2010 (the DCP) applies. Part D3 contains provisions for development within Lane Cove Village Centre (B2) Local Centre and Surrounds, and Part N provides for Signage and Advertising.
Part D3 of the DCP identifies the existing character of Lane Cove Village as being defined by its landscaped streetscapes and by a fine grain of retail development of two storeys. It notes that despite the strong main street structure, traffic impacts and fragmented connectivity combined with the extensive areas of on grade public car parking have resulted in pockets of low amenity, empty shopfronts and poorly maintained properties. The objectives for the Lane Cove Village Centre include to "reinforce and celebrate the gateways into the village centre" and "promote an appropriate scale to retail, civic and commercial development".
At N.1 Introduction 1.1 the DCP states that it has been prepared with consideration of the provisions of SEPP 64 and should be read in conjunction with it, and that it does not override SEPP 64.
Part N.2 Background includes character statements for parts of the Lane Cove local government area, and the character statement for the Lane Cove Village Town Centre includes at 2.2.1 the requirement that signage and advertising "should respect and enhance the village character of the Centre, while appropriately informing users of the business type and location in order to promote the economic viability of the Centre".
At Part 2.9 Merits Assessment the DCP provides that signage "should be integrated into the architectural design of the building on which it is located", and that where the DCP controls do not allow for effective and appropriate integration of signage into a building façade and design elements, the applicant must provide justification and a signage application will be assessed on its merits. Where a departure from the DCP is proposed, "the scale of the articulation and modulation of the building will be considered and proposed signage should reflect this".
The Introduction to Part N.3 General Signage Controls states that signage should be contained to one under awning sign for property street frontage; one above awning sign for property frontage; one top hamper sign per property street frontage; one awning sign per property street frontage; and one pylon/plinth sign per property street frontage. The Introduction notes that where multiple tenancies are located within a building, a co-ordinated signage strategy should be prepared and submitted with a development application.
Part 3.1.1 states that window signage should have a maximum coverage of 25 percent of the area of a shop window fronting a public area or visible from a public area, and that it be primarily for the purposes of business identification signage. The objectives of the window signage controls are to encourage relevant and appropriate signage, which contributes to the streetscape, to minimise visual clutter and maximise the effectiveness of signs, to allow users to see into shops and businesses and to permit high quality signage. Part 3.2 addresses above awning signage, and the objectives are to permit consistent and orderly above awning signage which contributes to the streetscape, to minimise visual clutter, to permit high quality above awning signage, and to complement building form. Part 3.2.1 states that one above awning sign per building may be located at first floor level where the building is more than one level and the sign relates directly to the approved business within the building, and that where a building has more than one frontage, an above awning sign may be permitted on each. The objectives of Part 3.3 for below awning signage are to encourage relevant and appropriate below awning signage, to encourage signage, which effectively engages, rather than overwhelming users, and to permit high quality below awning signage. Part 3.3.3 provides that top hamper signs are appropriate and must incorporate predominantly first party signage; one top hamper sign is permitted on each street frontage with maximum dimensions not extending beyond any wall or boundary and below the top of a door/window head. Where a tenancy has a minimum of two frontages flush wall signs are permitted at a rate of one per frontage, where flush wall signage is not located on the primary frontage.
Evidence
The appeals were heard together. The hearing commenced on site with a view of the building and the immediate locality.
Evidence was heard on site from Mr Doug Stuart, convenor of Residents and Shopkeepers for Appropriate Development (RASAD), and Mr Jon Johannsen, Chair of the Lane Cove Alive Leadership Group Inc. Their concerns related to process, and the actions of the applicants in erecting the signage without consent; and the number and appearance of the signs, including non-compliance with the planning controls, and their dominant appearance being out of character with the village character of Lane Cove. Letters of objection from RASAD and Lane Cove Alive Leadership Group Inc were included in the Council's bundles of documents.
Expert planning evidence in relation to the DA appeal was given on behalf of AMS by Mr Alan Caladine and by Mr Harvey Sanders on behalf of the Council.
The experts agreed that signs 11 and 18 are not exempt development because they are larger than the signs they replace. They disagreed as to whether signs 12 and 14 are exempt. The experts agreed that if approved, the relevant existing signs will be removed from the building and new signs erected in accordance with any such consent.
The experts disagreed on characterisation of the signage under SEPP 64, in particular which of the signs are a "business identification sign", and how the restrictions on wall advertisements in cl 22 of SEPP 64 apply. The experts disagreed as to assessment of the signs against the criteria in Schedule 1 to SEPP 64, and whether the proposed signs are consistent with the relevant provisions of the DCP.
Mr Caladine was of the opinion that the northern end of Longueville Road is different in character to the main retail strip along Longueville Road which is a lower order, well established business precinct characterised by predominantly two storey buildings that front Longueville Road. The northern end has no continuous flow of pedestrian traffic, which impacts on the successful operation of retail businesses. Access to the Chemist Warehouse store is not directly off Longueville Road, and the main point of entry is from the corner of Longueville Road and Birdwood Avenue up a pedestrian ramp that is below the building's elevated colonnade. Views of the Chemist Warehouse shop are not available to the general viewer until they reach the corner of Longueville Road and Birdwood Avenue and the viewer looking for Chemist Warehouse will not be able to see any of the subject signs until they arrive at that intersection. Views of the building and signs facing Birdwood Avenue are not available to the average viewer walking or driving south along Longueville Road until they almost arrive at the intersection of Longueville Road and Birdwood Avenue because the building is partially screened by the multi-storey commercial building on the north eastern corner of Longueville Road and Birdwood Avenue. Views of the signs facing Birdwood Lane are only available to the average viewer from the western end of the site in Birdwood Avenue, Birdwood Lane or the adjacent public car park. The persons using the car park are the persons that Chemist Warehouse seeks to engage with, and the signs on the Birdwood Lane and Birdwood Avenue elevations seek to catch the eye of users of the car park and those signs will provide an effective communication to persons in the car park. In Mr Caladine's opinion the signs will provide an effective form of communication to customers, having regard to the locational constraints of the building in the precinct.
Mr Caladine was of the opinion that the window film signs screen direct views of pharmaceutical goods and shelving in the shop, thereby offering security for the shop and breaking up the building's colour, bulk and scale, and provide a more effective screen than blinds and allow natural light to enter the premises. The signs fit comfortably within the building's modern architecture which is contemporary design with feature parapets, vertical piers and horizontal infill panels.
Mr Sanders was of the opinion that the number and variety of the proposed signage detract from the village character of the Town Centre; the number, variety and location and design would dominate the skyline and reduce the quality of vistas along Birdwood Lane and Birdwood Avenue; the general proliferation of signage does not respect the rights of neighbouring businesses; the site is an important gateway for visitors arriving from Epping Road and the adverse impact of the plethora of signs detracts from the attractiveness of the Village centre; the scale, proportion and form of the signage is inappropriate for the streetscape and setting and is not compatible with the scale, proportion and other characteristics of the site and building; the impact of the proposed signage on the streetscape and setting is exacerbated by the use of the bright yellow wall colour; and that if screening of the windows is required it should be a neutral colour.
Consideration
The parties' submissions were made on the basis that there are three elevations to the building, and that in the assessment of the signs, sign 10 in the DA appeal (sign 1 in the Building Certificate appeal) is to be included in the Longueville Road elevation, and sign 18 in the DA appeal (sign 5 in the Building Certificate appeal) is to be included in the Birdwood Avenue elevation.
Signs 11,12, 14 and 18 are not included in the application for development consent, and were identified on the plans as "exempt". The applicant submits that signs 5, 7, and 9 in the DA appeal are also exempt development, applying cl 2.72A of the Codes SEPP. The applicant submits that those signs which are exempt development and not the subject of the development application can be considered in the context of the Building Certificate and Order appeals. The applicant submits that with the exception of signs 3 and 4, the signs are permissible under SEPP 64 and could be the subject of a building certificate. The applicant submits that the signs for which consent is sought or in respect of which a building certificate could be issued meet the applicable merits assessment criteria. The applicant submits that if the applicants are successful in all or part of the DA or Building Certificate appeals, the Order should be revoked or modified to require alteration of signs. In the alternative, the applicant submits that the Order is invalid because it is undated: the direction to carry out works within a period of 14 days from the order cannot properly be understood or complied with, and the requirement under s 121M to specify a "reasonable period" for compliance, which cannot be known on the current notice.
In relation to the Building Certificate appeal the Council accepts that there are no issues of structural integrity or safety that need to be addressed. The Council submits that those signs which take the form of window print, and those signs that are prohibited, cannot be the subject of a building certificate, and there is no evidence on which to undertake a merits assessment in the Building Certificate appeal. The Council submits that none of the signs is exempt development, because they are not replacement of an existing business identification sign. In assessing the merits of the signs in the DA appeal, the Council submits that the planning controls have changed since the 1994 approval of Blockbuster signage, in particular by the introduction of SEPP 64. The signs do not meet the aim in cl 3(1)(a)(i), and do not meet the Schedule 1 assessment criteria. The window signs should be assessed by reference to the DCP, and the Council accepts that some of the signs are consistent with the 25 percent limitation. In relation to the Order appeal the Council submits that if the proper outcome is that the signage should be removed the Order can be modified.
Exempt development
In order to address the different issues raised in each of the appeals, the first step is to determine whether any of the proposed or existing signs is exempt development.
The signs are not exempt development as defined in cl 33 of SEPP 64, and are not exempt development under Part 3 of the LEP. Clause 1.9 of the LEP does not exclude the operation of the Codes SEPP. In considering whether any of the signs are exempt development under the Codes SEPP, the applicant accepts, based on the agreed evidence of the planners, that signs 11 and 18 (signs 2 and 5 respectively in the Building Certificate appeal) are larger than the Blockbuster signs formerly in those locations. The applicant accepts that sign 14 (sign 4 in the Building Certificate appeal) is not a business identification sign. Accordingly, the applicant accepts that signs 11, 14 and 18 are not exempt development as defined in subdivision 36A of the Codes SEPP.
The applicant submits that signs 5, 7, 9 and 12 are exempt development as they are business identification signs, replace Blockbuster's lawful business identification signs, and are no greater in size than the signs they replace. The applicant submits that cl 2.72A applies to the removal of one business identification sign to be replaced by another, and that is not restricted to a change of signs of a single business or by a requirement that there be a temporal connection for the removal and replacement. The council submits that the applicant has not established that the signs replace those approved for Blockbuster.
Clause 2.72A of the Codes SEPP requires consideration of whether any or all of these signs is a "business identification sign". That term is not defined in the Codes SEPP. Clause 1.5(2) provides that a word or expression used in the Codes SEPP has the same meaning as it has in the Standard Instrument unless it is otherwise defined. The Dictionary to the Standard Instrument-Principal Local Environmental Plan defines the term as follows:
business identification sign means a sign:
(a) that indicates:
(i) the name of the person or business, and
(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and
(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,
but that does not contain any advertising relating to a person who does not carry on business at the premises or place.
Note. Business identification signs are a type of signage-see the definition of that term in this Dictionary.
That definition is similar to that in SEPP 64, but includes a reference to "or business" in (a)(i), refers to "the nature of the business" carried on in (a)(ii). While there are differences in wording, in my view they are not so significant as to suggest that the term should be given a different interpretation to the term "business identification sign" as used in SEPP 64.
The submissions of the parties accepted the interpretation given to "business identification sign" as defined in SEPP 64 in Administration and Marketing Solutions Pty Ltd v Tamworth Regional Council [2011] NSWLEC 1343. Some of the signage at issue in those proceedings was the same as that under consideration in these proceedings, including signage that contained the words "Chemist Warehouse" and "Discount Chemist" in a stylised "house" shape:
51.In considering whether any of these signs is a "business identification sign", the starting point is the confirmation by the Court of Appeal in Bunnings [Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386] that the word "indicates" as used in the definition of business identification sign does not require the sign to explicitly state the two elements in (a). Applying the reasoning of Hodgson and Bryson JJA, words are not essential; however, the indication of the matters in (a)(i) and (ii) must be "relatively clear and concrete" (Bryson JA), and fulfil the function of making known the nominated matters (Pearlman AJA).
...
53 Sign 2 includes the words "Chemist Warehouse" in the stylised red "house" shape. In my view, the Council's submission that to meet (a)(i) of the definition of "business identification sign" a sign must state "Chemist Warehouse Tamworth" rather than "Chemist Warehouse" is contrary to the approach adopted by the Court of Appeal in Bunnings. The definition requires that the sign "indicates" the name of the person, rather than requiring that it be explicitly stated, either generally or in accordance with the requirements of the Business Names Act. The words "Chemist Warehouse" indicates the name of the name of the person as required by (a)(i), and the words "Discount Chemist" indicate the nature of the business as required by (a)(ii). I am satisfied that sign 2 indicates the name of the business, and the business carried on, and is a business identification sign.
Applying that reasoning, I am satisfied that signs 5, 7, 9, 11, 12 and 18 in the DA appeal are business identification signs.
In considering whether any are exempt development, cl 2.72A requires determination of whether they are the "replacement" of "an existing" sign, and cl 2.72B whether they replace a "lawful sign". The development consent granted in 1994 to Blockbuster for the erection of signage is in evidence (exhibit E). The plans show signs stating "Blockbuster Video" in the location of proposed signs 11 and 18 (as "torn ticket wall sign"), and in the location of proposed signs 12 and 14 (as "hamper signage to inside of colonnade"). The photographs in exhibit E show an additional "Blockbuster Video" sign on the Birdwood Avenue elevation below the parapet, and "Blockbuster" signs in the windows where proposed signs 15, 17 are located, and the windows along the Birdwood Lane elevation. It is not clear when these photographs were taken. The applicant submits that the Blockbuster consent should be construed liberally in respect of rights already granted pursuant to an existing consent. However, neither the plans (dated 9 October 1994) nor the conditions imposed on the approval granted by the Council to Blockbuster on 6 December 1994 include signs on the windows facing Birdwood Lane, and there is no evidence before me that would support a finding that the "Blockbuster Video" window signs appearing in the photographs attached to exhibit E were authorised. Based on the plans in exhibit E, I am satisfied that only the sign in the location of proposed sign 12 was a "lawful sign".
The applicant submits that a purposive construction to the Codes SEPP read as a whole would not restrict a change of signage between a single business, or require that the temporal connection for removal and replacement be immediate. In considering whether cl 2.72A requires that a replacement sign be one for the same business, and that replacement be contemporaneous, as submitted by the council, I have had regard to the aims of the Codes SEPP as stated in cl 1.3 which are "to provide streamlined assessment processes for development that complies with specified development standards by" among other things, "identifying, in the General Exempt Development Code, types of development that are of minimal environmental impact that may be carried out without the need for development consent".
I am not persuaded that cl 2.72A should be read as broadly as contended by the applicant. The requirement that there be a replacement of an "existing" sign or the content of such a sign indicates that a close temporal connection between removal and replacement is envisaged. Such an interpretation would be consistent with the function of the Codes SEPP in facilitating development of minimal environmental impact. A delay between the removal of one sign and the erection of another would not necessarily promote that aim in a context where the surrounding streetscape or land uses, or planning controls, may have changed in the intervening period.
The evidence as to timing of replacement of the signage is in the form of an email sent from the Senior Property Manager of AMS to the council on 8 December 2010 (p1, exhibit 4) in response to the notice of intention to issue an order, which states:
...
I must say I am a little perplexed as the signage erected is directly replacing previously erected signage by the previous tenant, Blockbuster Video.
It is also within the area allocated to us by the Landlord for the purposes of erecting our signage/corporate livery. I have spoken to the signage contractor and he confirms that there is definitely an outline of a previous Blockbuster sign on the splayed parapet. Attached are images supplied by the landlord's agent highlighting the areas that are assigned to our tenancy for signage as well as depicting previous erected signage facing Birdwood Avenue.
I reiterate that we have only replaced previously erected signage and painted the highlighted areas in our corporate colours and, I might add, have not identified any painting controls, thus don't understand why there should be any issue.
...
The evidence before me does not support a finding that there was a close temporal connection between removal of the Blockbuster signs and the erection of the Chemist Warehouse signs: rather, the reference in the email of 8 December 2010 to there being an "outline of a previous Blockbuster sign", and to "previously erected signage" supports the conclusion that there was period where there was no signage. That is still the position in relation to proposed sign 12. I am not satisfied that the erection of the Chemist Warehouse signs was a replacement of an "existing" sign or signs. This conclusion makes it unnecessary to decide whether cl 2.72A requires that a replacement sign be one for the same business.
I am not satisfied that any of the proposed or existing signs are exempt development. There are two signs presently on the building which are not included in the DA appeal and which are included in the Building Certificate appeal. Whether those signs, being sign 2 in the Building Certificate appeal (sign 11 in the DA appeal) and sign 5 in the Building Certificate appeal (sign 18 in the DA appeal), should remain will depend on the determination of the Building Certificate appeal and the appeal against the Order.
DA appeal
It is appropriate to consider first the appeal against refusal of development application D168/11. The expert planning evidence was directed to the issues raised in that application. If consent is granted to that development application, some of the issues in the other two appeals will not need to be addressed.
SEPP 64, and the DCP, applies to the assessment of the 14 signs that form part of the development application. The assessment criteria to be applied under SEPP 64 are those in cl 8, or cl 13, depending on the characterisation of the particular sign. Clauses 8 and 13 both refer to the objective in cl 3(1)(a) and the assessment criteria in Schedule 1, although in slightly different terms. Both assessment pathways require that the signage be consistent with the objectives of SEPP64 in cl 3(1)(a). In relation to the assessment criteria in Sch 1, cl 8 requires that signage satisfy those criteria, and cl 13 requires that the signage be assessed in accordance with those criteria and the consent authority be satisfied that it is acceptable in terms of its impacts. Signage considered under Part 3 must also satisfy any relevant requirements of SEPP 64.
Part 3 applies to all signage to which SEPP 64 applies, other than business identification signs, building identification signs, exempt development, and signage on vehicles. The parties in these proceedings accepted the reasoning I adopted in Tamworth on the application of the definition of "business identification sign" to the Chemist Warehouse signs that were the subject of those proceedings. For the reasons discussed in Tamworth at [51]-[53], quoted above, I am satisfied that signs 2, 5, 7, 9, 10, 15, and 17, which all contain the words "Chemist Warehouse Discount Chemist" are business identification signs. At [71] in Tamworth I concluded that signs which when read together stated "Chemist Warehouse Australia's Cheapest Chemist" contained the matters specified in paragraph (a) of the definition, and I am satisfied that signs 1 and 13 in these proceedings which contain the same words are business identification signs.
Signs 3, 4, 6, 8, 14, and 16 contain additional words, "Up to 50% off prescriptions", "Never beaten on price", and "up to 85% off fragrances". At [60]-[63] in Tamworth I considered the evidence then before me as to the words, colours and style of signs used by Chemist Warehouse, and concluded that the words as used in proposed signs 3, 4, 6, 8, 14 and 16 were not a "logo or other symbol that identifies the business" as permitted in (b) of the definition of "business identification sign". At [78] I concluded that a sign stating "Chemist Warehouse Discount Chemist Up to 50% off prescriptions" included the matters specified in (a) of the definition, however included words not authorised in the optional matters in (b), and was not a "business identification sign". The parties' submissions in these proceedings accepted this reasoning, and applying it to the signs that are the subject of these proceedings, signs 3, 4, 6, 8, 14 and 16 are not business identification signs.
Signs 1, 2, 5, 7, 9, 10, 13, 15, and 17 are to be assessed in accordance with cl 8 of SEPP 64, and signs 3, 4, 6, 8, 14, and 16 are to be assessed under Part 3 of SEPP 64. The assessment requires consideration of the objective of SEPP64 in cl 3(1)(a), the assessment criteria in Sch 1, and in the case of some of the proposed signs, additional matters specified in Part 3 of SEPP 64. The provisions of the DCP are relevant in informing the assessment of the existing or desired future character of the area, and assessing the proposed signs in the context of their setting.
I accept the evidence of Mr Sanders, which was consistent with the view, that the section of Longueville Road on which the building is located is a gateway into Lane Cove village centre from Epping Road. It was apparent from the view that the intersection with Birdwood Avenue is heavily used by traffic proceeding both along Longueville Road and turning the corner into Birdwood Avenue. There is a large public carpark at the rear of the building accessed from Birdwood Avenue, and an arcade leading from Birdwood Lane through to Longueville Road. I accept the evidence of Mr Caladine that this carpark will be used by persons that the business is seeking to attract. There are a number of vacant shops in the immediate vicinity of the building.
Considering first the Longueville Road elevation, the only sign proposed is sign 10, which is an illuminated lightbox on the corner of Birdwood Avenue, and which is already in place. I agree with Mr Caladine that sign 10 provides effective communication to persons passing along Longueville Road, and that its location on the splayed corner of the building assists in identifying the start of the ramp leading to the entry to the business. To that extent it is consistent with the aim in cl 3(1)(a)(ii) of SEPP 64. However, I am not persuaded that it is consistent with the aim in cl 3(1)(a)(i), or that it satisfies the Schedule 1 assessment criterion that its scale, proportion and form are appropriate for the streetscape, setting or landscape. Sign 10 is significantly larger than the existing signs for Flight Centre and Subway which are also visible at the corner location, and the contrast with the bright yellow background paint means that it dominates the corner position and the building itself. I accept Mr Sanders' evidence that this sign is out of scale with the building particularly when compared with the existing parapet signage for the other tenancies in the building. Based on the view, and the photographs in exhibit D, this sign is more dominant than signage on other buildings in the locality. The scale and proportion of this sign is not appropriate for the setting, and accordingly does not satisfy the Schedule 1 assessment criteria as required by cl 8 of SEPP 64. It is not consistent with the objective in the DCP at 3.2 that it complements the building form and contributes to the streetscape. However, if reduced in size it would be consistent with the aims in cl 3(1)(a)(i) and (ii) and satisfy the Schedule 1 assessment criteria relating to character of the area, streetscape, and site and building. There was no issue raised as to the illumination of this sign.
The Birdwood Avenue elevation includes proposed signs 2, 3, 13, 15, 16, and 17. Signs 11 and 18 are not included in the DA appeal, and are to be considered in the Building Certificate appeal. Signs 2, 13, 15 and 17 are business identification signs, to be assessed in accordance with cl 8 of SEPP 64. Signs 3 and 16 are to be assessed under Part 3 of SEPP 64.
Signs 15, 16, 17, 2 and 3 are window print. Mr Caladine's evidence was that the window signage is primarily relevant for security reasons to screen shelving and various types of pharmaceutical goods and medicines while at the same time providing advertising exposure. Given the height of that part of the building where these signs are to be located, I am not persuaded that they fulfil a security function. They do provide communication consistent with objective 3(1)(a)(ii). However, I am not satisfied that these signs, because of the number and repetition of content, are consistent with the Sch 1 assessment criteria that the proposal "reduce clutter" by rationalising and simplifying existing advertising, that it be appropriate in scale proportion or form for the streetscape and setting, and that the signs contribute to the visual interest of the streetscape and setting. Part 3.1.1 of the DCP includes the objective of minimising visual clutter, and its restriction of coverage to 25 percent of the area of a shop window fronting a public area or visible from a public area should be read in the context of that objective, and the objective of allowing users to see into shops. If either sign 11 or 18 remains or sign 13 is approved, none of these signs contributes to effective communication. To the extent that any screening function is required, that can, as acknowledged by Mr Caladine, be achieved through the use of a bland vinyl adhesive that would also enable natural light to enter the building.
Sign 13 is on the parapet, and Mr Sanders' evidence was that the proposed signs on the parapet (being signs 1, 10, 11, 13 and 18) are out of scale with the building. Further, sign 13 extends over columnar elements on the building facades which define the scale and proportion of the façade and does not respect the architectural features of the building. Mr Caladine's evidence was that the building design is poor in relation to the character of the other buildings in the area, and that sign 13 provides communication and is consistent with the council's previous approval of Blockbuster signage. I agree with Mr Sanders that the scale and proportion of sign 13 is dominant. If signs 11 and 18 remain, I am not satisfied that sign 13 provides effective communication. Sign 13 extends across two sections of the parapet and covers the intervening part of the column, which is one of the elements that breaks up the façade of the building. This extension across one of the architectural features of the building means that sign 13 is not, as sought by Part 2.9 of the DCP, integrated into the architectural design of the building. Based on the view and the photographs in exhibit D, that is not consistent with the signage in the immediate locality. I am not satisfied that sign 13 meets the Schedule 1 assessment criteria that it be appropriate for the streetscape, setting or landscape, and that it be compatible with the scape, proportion and characteristics of the building. If signs 11 and 18 are removed, I accept that a business identification sign, reduced in size and contained within one section of the parapet, would be appropriate in this location.
The Birdwood Lane elevation includes signs 1, 4, 5, 6, 7, 8, and 9. I accept the evidence of Mr Caladine that a function of the signage on this elevation is to inform, and attract, customers who park in the public car park. Given the height of the building facing Birdwood Lane, I do not accept that the window signs 4, 5, 6, 7, 8, and 9 perform a security function. For the reasons applying to signs 2, 3, 15, 16 and 17, they do not minimise, but rather contribute to, clutter. I am not satisfied that signs 5, 7 or 9 satisfy the Sch 1 assessment criteria relating to streetscape, setting or landscape, and I am not satisfied that the impact of signs 4, 6, or 8 is acceptable. Mr Sanders' evidence relating to sign 1 was to the same effect as that for sign 13. I am not persuaded that the impacts are as significant as those identified for sign 13, in the context of the greater height of the building at the Birdwood Lane elevation and its location adjoining the car park. However, it does extend over and obscure the architectural features of the building. The approval of Blockbuster signage in this location in 1994 does not warrant approval of new signage in the context of different planning controls, in particular the detailed assessment criteria introduced by SEPP 64, and the detailed provisions in the DCP made in conjunction with SEPP 64. In the absence of signs 4, 5, 6, 7, 8 and 9, and their replacement by bland vinyl adhesive as suggested by Mr Caladine, I am satisfied that sign 1 does provide effective communication in a suitable location, and if reduced in size and contained within one section of the parapet would not be inconsistent with the Sch 1 assessment criteria relating to character of the area; streetscape, setting or landscape; and site and building.
Having assessed the 14 signs proposed in the DA appeal, I am of the view that signs 1 and 10 can be approved if reduced in size as discussed above. Approval of sign 13, in a reduced form, depends on whether either of signs 11 and 18 remain.
Building Certificate appeal
Section 149D of the Act identifies the considerations relevant to the determination of an application for a building certificate:
149D Obligations of council to issue building certificate
(1) The council must issue a building certificate if it appears that:
(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993:
(i) to order the building to be demolished, altered, added to or rebuilt, or
(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or
(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.
(2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.
(3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.
(4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a).
(5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.
The powers of the Court on appeal are those conferred by s 149F(3) of the Act:
(3) On hearing the appeal, the Court may do any one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b) it may revoke, alter or confirm a notice under section 149C,
(c) it may make any other order that it considers appropriate.
In Ireland v Cessnock City Council (1999) 110 LGERA 311 at [37] Bignold J set out the relevant issues as being first, the structural adequacy of the building, and secondly, the probability of development consent being granted had such approval been sought. The latter consideration was described in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [58] as being consideration of a notional development application, which is an appropriate exercise for the Court to undertake in the exercise of the statutory discretion conferred by s 149G(3).
These proceedings differ from those in Ireland and Taipan where in the former case there was a development application for prospective use of the shed the subject of the building certificate application, and in the latter where there was no separate development application under consideration. In Mineral Wealth Pty Ltd v Gosford City Council (2003) 127 LGERA 74 Pain J considered the approach to be adopted in proceedings concerning both a building certificate appeal and a development application appeal, and held that in the circumstances of that case it was appropriate to determine first the development application and then having been satisfied about the grant of development consent, to direct the issuing of the building certificate. In contrast to the circumstances of that case, in the present proceedings, the DA appeal includes only some of the existing signs.
There was no dispute as to the structural adequacy of any of the signs. The council submits that there is limited evidence in undertaking a notional development assessment, other than by extrapolation from Mr Caladine's support of all the appeals. The applicant submits that assessment of the merits in both the DA appeal and the Building Certificate appeal is similar, relying on Mr Sanders' acknowledgement in oral evidence that the issues are effectively the same. I agree with the applicant that there is sufficient evidence to undertake the notional development application assessment required in the Building Certificate appeal, in the form of Mr Caladine's evidence on the acceptability of all the signage by reference to the SEPP 64 and DCP criteria, and Mr Sanders' acceptance that both appeals raise similar merits issues.
Signs 3 and 8 in the Building Certificate appeal are weathertex, and read "Is this Australia's Cheapest Chemist". Neither sign is a business identification sign, and each is a wall advertisement as defined in SEPP64. Clause 22(1)(g) of SEPP 64 prohibits a wall advertisement on an elevation where there is a business identification sign. Signs 2 and 5 are business identification signs. In APN Outdoor (Trading) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1131 Dixon C considered the authorities and concluded that s149F does not confer power to direct the council to issue a building certificate in circumstances where the development is prohibited. The parties in these proceedings accepted this reasoning. If sign 2 is permitted to remain by the issuing of a building certificate, or a modified version of it is approved in the DA appeal, sign 3 is prohibited and, applying APN, cannot be the subject of a building certificate. Similarly, for the Birdwood Lane elevation, if sign 5 is permitted to remain, sign 8 is prohibited and cannot be the subject of a building certificate.
Signs 2 (sign 11 in the DA appeal) and 5 (sign 18 in the DA appeal) are business identification signs. Both are illuminated. Both are located in a triangular section of the building parapet. Based on the view, sign 2 becomes visible from that part of Longueville Road near the Longueville Hotel to those travelling along Longueville Road from Epping Road. For reasons the same as those expressed in relation to sign 10, I am of the view that this sign is out of scale with the building particularly when compared with the existing parapet signage for Subway on this elevation. The scale and proportion of this sign is not appropriate for the setting or the characteristics of the building, and accordingly it does not satisfy the Schedule 1 assessment criteria relating to character of the area and streetscape, setting or landscape, and site and building as required by cl 8 of SEPP 64. I am not satisfied that in its present form it would be appropriate to direct the issuing of a building certificate for it to remain.
Sign 5 is located on the splayed corner of the building, and based on the view is visible from the northern end of the car park and along Birdwood Avenue. As is the case for sign 2, and sign 10 in the DA appeal, in scale and form it dominates that section of the building. However, given the height of the building at this location and the angle of the splay corner, an appropriately dimensioned sign would be consistent with the objective in cl 3(1)(a).
Signs 6, 7 and 9 are window print, described in the application as "self adhesive vinyl". The Council submits that these signs cannot be the subject of a building certificate; the applicant submits that if something falls within the definition of "development" and development consent can be granted, a building certificate can be issued.
The provisions relating to the issuing of a building certificate are contained in Part 8 of the Act. Section 149D(1) provides that the Council must issue a building certificate if it appears that the matters specified in s 149D(1)(a) and (b) are satisfied. The effect of a building certificate is relevantly to prevent the Council from making an order under the Act or the Local Government Act 1993 "requiring the building to be repaired, demolished, altered, added to or rebuilt" in relation to matters existing or occurring before the date of issue of the certificate (s 149E(1)(a)), or for a period of seven years from the date of issue of the building certificate in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear (s 149E(2)(a)).
The term "building" is defined in s4 of the Act:
building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.
The definitions in s 4 of the Act distinguish between an "advertisement" and an "advertising structure", the former being a sign, notice, device or representation in the nature of an advertisement, and the latter being the structure used or to be used principally for the display of an advertisement. The definition of "signage" in the LEP incorporates both elements. The window film advertisements in signs 6, 7 and 9 fall within that definition and are permissible with consent under the LEP. However, I do not accept the applicant's submission that it necessarily follows that because advertisements are a form of development controlled under the LEP they can be the subject of an application for a building certificate. The definition of "development" in s 4 is broad, and includes the use, or subdivision, of land, and any act matter or thing referred to in s 26 controlled under an environmental planning instrument, which includes s 26(1)(g) "controlling advertisements". The focus of the building certificate provisions in Part 8 is primarily on physical or structural works, in particular in the reference in s 149D(1) to the building being "demolished, altered, added to or rebuilt", and the similar references in s 149E(1) relating to the effect of a building certificate. Ireland, Taipan and Mineral Wealth concerned a farm shed, a boatshed, and a shed used for storage of bottles used in water bottling, respectively, and can be distinguished from the signage in the forms of signs 6, 7 and 9 in these proceedings. I am not persuaded that the power conferred on the Court by s 149F(3) of the Act extends to authorising the issue of a building certificate to window film.
If I am wrong in that conclusion, and the discretion extends to signs 6, 7 and 9, the second part of the consideration in Ireland remains. The competing messages, colours and design of these signs are cluttered, and visually dominate the corner of the building. None of these signs is a business identification sign. The number, and location of the signs does not contribute to the restrained, co-ordinated approach to signage reflected in the General Signage Controls at Part N.3 of the DCP. If there is power to issue a building certificate to enable these signs to remain, I am not satisfied that it would be appropriate to do so. The appeal against the refusal of the building certificate should be dismissed.
Order appeal
The powers of the Court are conferred by s 121ZK(4) of the Act:
(4) On hearing an appeal, the Court may:
(a) revoke the order, or
(b) modify the order, or
(c) substitute for the order any other order that the person who gave the order could have made, or
(d) find that the order is sufficiently complied with, or
(e) make such order with respect to compliance with the order as the Court thinks fit, or
(f) make any other order with respect to the order as the Court thinks fit.
Even if, as the applicant submits, the s 121B Order was defective because it was not dated, the appeal to the Court can be determined: Lederer v Sydney City Council (2001) 119 LGERA 350, Van Haasteren v South Sydney Council (2000) 109 LGERA 252, Stutchbury v Pittwater Council (1999) 105 LGERA 1. In circumstances where some of the signs can be approved in the DA appeal, the appropriate course would be to modify the Order to reflect the final determination of the DA and Building Certificate appeals, to require the removal of all unauthorised signage.
Conclusion
In the DA appeal, approval of signs 1 and 10 would require amendment of the development application to reduce their size and location. Signs 11 and 18 are not included in the development application: it would be appropriate to approve a reduced version of these signs. If the development application is amended to enable consent to be granted to a modified form of signs 1, 10, 11 and 18, signs 3 and 8 in the Building Certificate appeal are prohibited, and on the notional development application assessment, I am not persuaded that it is appropriate to issue a building certificate to enable the other signs included in the Building Certificate appeal to remain on the building.
I propose to allow the parties the opportunity to consider whether an application to amend the development application should be made, and to make submissions on the appropriate form of final orders for each of the appeals.
Linda Pearson
Commissioner of the Court
ANNEXURE A
ANNEXURE B
Decision last updated: 17 April 2012
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