Administration and Marketing Solutions Pty Ltd v Tamworth Regional Council
[2011] NSWLEC 1343
•29 November 2011
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Administration and Marketing Solutions Pty Ltd v Tamworth Regional Council [2011] NSWLEC 1343 Hearing dates: 1, 2 August 2011 Decision date: 29 November 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Direction to be made in consultation with the parties for provision of conditions or amended plans
Catchwords: Development application - signage -business identification sign - building identification sign - wall advertisement - roof or sky advertisement - heritage item Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 64 - Advertising and Signage
Tamworth Local Environmental Plan 1996
Business Names Act 2002Cases Cited: Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386
Bunnings Pty Ltd v Auburn Council [2003] NSWLEC 212Category: Principal judgment Parties: Administration and Marketing Solutions Pty Ltd (Applicant)
Tamworth Regional Council (Respondent)Representation: Counsel
Mr N Eastman (Applicant)
Solicitors
Mr H Rotstein, Rotstein Lockwood Reddy Lawyers (Applicant)
Mr R Mallick, Mallick Rees Lawyers (Respondent)
File Number(s): 10206 of 2011
Judgment
This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application 0235/2011 for the installation of 31 advertisements on three elevations of an existing building at 130-138 Peel Street Tamworth (the site).
The site is Tenancies 2 and 3 in a single storey masonry building. The building has a frontage to Peel Street (to the east), Jewry Street (to the north) and Brewery Lane (to the west). Vehicular access to the site is provided from the Peel Street and Brewery Lane frontages. There is a separate detached building (Tenancy 1) on the other side of the driveway entrance from Peel Street which is occupied by "Spotlight", and an associated shared car parking area, which also services other retail premises at the rear on the Brewery Lane frontage.
The building containing Tenancies 2 and 3 is identified as a Heritage Item under Tamworth Local Environmental Plan 1996. The surrounding land uses are a mix of commercial and residential uses, and include a number of other heritage items.
The site is occupied by a pharmacy, and the development application sought approval for a total of 31 advertisements associated with "Chemist Warehouse", including five illuminated signs. The proposed signs were depicted on plans lodged with the development application, as annexed to these reasons.
The issues between the parties are whether any of the proposed advertisements are prohibited, and whether on consideration of the merits approval for installation of some or all of the advertisements which are permissible should be granted.
Planning controls
The site is zoned 3(a) Business under the Tamworth Local Environmental Plan 1996 (the LEP). Advertising signage is permissible with development consent. The objectives of the 3(a) zone are:
1 Objectives of the zone
(1) The general objective of this zone is to provide for low intensity commercial and retail facilities which are unlikely to prejudice the viability of the central business district of the City of Tamworth.
(2) The specific objectives of this zone are:
(a) to ensure that the size and functions of both retail and commercial facilities are established in accordance with the Council's preferred hierarchy of retail and commercial centres for the City, and
(b) to restrict development generally to the provision of services required either by the travelling public or which serve the local community and are limited in scale.
(3) Development for the purpose of the following is usually not consistent with the objectives of this zone:
agriculture; dual occupancies; home activities; rural industries.
Clause 9(3) of the LEP provides that the Council must not grant consent for development unless it has taken into consideration the aims of the LEP and is satisfied that the development is consistent with such of the objectives of the relevant zone as are of relevance to the development the subject of the application.
Clause 39 of the LEP provides the factors that must be considered when determining an application for consent to carry out development on land within any zone fronting a classified road. Clause 43 provides that consent is required for, inter alia, alteration of a building that is a heritage item. Clause 44 provides the matters that must be taken into account in determining an application required by cl 43, including, inter alia, the significance of the item as a heritage item, and the extent to which the carrying out of the development would affect the heritage significance of the item and its site. Clause 46 provides that when determining an application for consent to carry out development on land in the vicinity of a heritage item the Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its setting.
Schedule 5 of the LEP lists exempt development, including erection of specified signs. The signs specified in Schedule 5 as exempt development include relevantly:
Commercial signs for the following types of advertisements:
...
a commercial sign, being an advertisement, whether illuminated or not;
...
The term "commercial sign" is defined in cl 6 to mean:
commercial sign means a sign, notice, device or representation in the nature of an advertisement, whether illuminated or not, which:
(a) has dimensions of not greater than 1.2 metres in length and 0.6 metres in height, and
(b) in respect of any place or premises to which it is affixed, contains only:
(i) a reference to the identity or a description of the place or premises,
(ii) a reference to the identity or a description of any person residing or carrying on an occupation at the place or premises,
(iii) particulars of any occupation carried on at the place or premises,
(iv) such directions or cautions as are usual or necessary relating to the place or premises or any occupation carried on there,
(v) particulars or notifications required or permitted to be displayed by or under any State or Commonwealth Act,
(vi) particulars relating to the goods, commodities or services dealt with or provided at the place or premises,
(vii) a notice that the place or premises is or are for sale or letting together with particulars of the sale or letting,
(viii) particulars of any activities held or to be held at the place or premises, or
(ix) a reference to an affiliation with a trade, professional or other association relevant to the business conducted at the place or premises.
The Tamworth Regional Local Environmental Plan 2010 (the 2010 LEP) commenced on 21 January 2011, and provides in cl 1.8A that a development application made before the commencement of the 2010 LEP, and not finally determined before that commencement, must be determined as if the 2010 LEP had not commenced.
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 roof or sky advertisements (cl 21), and 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.
roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.
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.
The Tamworth Development Control Plan No 3 - Outdoor Advertising Guidelines (DCP) includes provision for criteria for consideration (cl 9), design guidelines (cl 10), colour and paint schemes (cl 11), and special requirements relating to advertisements on historic buildings (cl 12).
Evidence
The matter commenced on site as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented to my hearing and determining the matter and to the evidence from the view forming part of the evidence.
Expert planning evidence was given by Mr Alan Caladine on behalf of the applicant and by Mr David Lewis on behalf of the respondent. Mr Caladine and Mr Patch gave evidence relating to how the proposed signs should be characterised for the purposes of SEPP 64 to address the Council's contention that 12 of the signs do not comply with cl 22 of SEPP 64 and a further two do not comply with cl 21, and cannot be approved. Their evidence also addressed the contentions relating to whether the proposed signs are consistent with the objectives of SEPP 64, whether the signs satisfy the assessment criteria in Schedule 1 of SEPP 64, and the assessment required by the LEP and the DCP.
Expert evidence on heritage issues was given by Mr Greg Patch on behalf of the applicant, and by Ms Clare James on behalf of the respondent. Mr Patch and Ms James addressed the contentions relating to the Schedule 1 assessment criteria, in particular relating to the number, content and size of the signs and the use of primary colours and illumination of five of the proposed signs; the requirements of cl44 of the LEP; and the assessment criteria in the DCP.
Mr Jack Gance, one of the founders of the Chemist Warehouse group of pharmacies, swore an affidavit and was cross-examined. The evidence of Mr Gance was that he and Mr Mario Verrocchi, the other founder of the Chemist Warehouse group of pharmacies, own the intellectual property in the brand name "Chemist Warehouse", which includes trademarks for the words and images "Is this Australia's Cheapest Chemist?", "Chemist Warehouse", "Chemist Warehouse Stop Paying Too Much", "Chemist Warehouse Discount Chemist", "Chemist Warehouse Lowest Price Guaranteed", and "Chemist Warehouse Discount Chemist Stop Paying Too Much!". They license the use of the Chemist Warehouse intellectual property rights to various proprietors operating businesses under the Chemist Warehouse branding. Administration and Marketing Solutions Pty Ltd, the applicant in these proceedings, provides administration and marketing services such as book-keeping, payroll, stock-taking, accounts payable, planning and development applications. The pharmacies operating under the Chemist Warehouse branding are not franchised, and are owned by registered pharmacists alone or in partnerships. There are 174 pharmacies across Australia that are members of the Chemist Warehouse group.
At paragraph [10] of his affidavit Mr Gance states that he and Mr Verrocchi have since May 2002 by themselves or through the licensees, carried on throughout Australia the business of providing retail pharmacy services by reference to the Chemist Warehouse trade marks; a distinctive get-up which consists of a colour scheme of yellow, red, blue and white; signs and slogans including "Chemist Warehouse", "Discount Chemist", "Is this Australia's Cheapest Chemist?", "Stop Paying Too Much", "Up to 50% off prescriptions", "Never Beaten on Price", and "Lowest Price Guaranteed"; and a store image which includes yellow exterior, a colour scheme of bright yellow, red, blue and white, and use of signs.
At paragraph [16] and following of his affidavit Mr Gance provides details of steps taken, including legal proceedings, against individuals or corporations that have carried on business by reference to the Chemist Warehouse intellectual property, get-up, signs or slogans without authority.
In oral evidence Mr Gance stated that the proposed signs which were not subject to a trade mark, such as "85% off Fragrances", were indicative of the Chemist Warehouse operation and gave the public a clear idea of what the business did as opposed to the average pharmacy, and were part of the Chemist Warehouse intellectual property by virtue of the use of the distinctive get-up and arrangement.
Application of SEPP 64
It was common ground that cl 6 is met and that SEPP 64 applies to the proposed signs. Part 3 of SEPP 64 imposes a number of prohibitions and controls. Four specified types of signs are excluded from those controls by cl 9, and Part 3 would not apply to any of the proposed signs that is a "business identification sign", a "building identification sign", or signage that is exempt development. It was common ground that the only basis on which any of the proposed signs would be exempt development would be if it met the definition of "commercial sign" for the purposes of Sch 5 of the LEP. Any proposed sign that is not a business identification sign, a building identification sign, or exempt development, would have to meet the requirements of Part 3 Div 3, relevantly the restrictions on wall advertisements in cl 22, and roof or sky advertisements in cl 21. Whether or not Part 3 applies to any of the signage, a merits assessment is required under cl 8 or cl 13 of SEPP 64.
Applicant's submissions
The applicant submits that signs 2, 9,12, 27 and 32 are a business identification sign. Sign 12 contains the words "Chemist Warehouse"; and "Australia's Cheapest Chemist" is a logo of Chemist Warehouse. In relation to sign 32, based on the evidence of Mr Gance, the "50% off prescriptions" component of the sign is characterised as a logo. The definition provides that a business identification sign may include "a logo or other symbol that identifies the business". A symbol is both the words and how they are conveyed, by size, colour, font or shape, and the context, namely how those words are put together to be a symbol or logo.
The applicant submits that signs 4, 7, 14 are a building identification sign. The term "Discount Chemist" when used on its own is a building identification sign, as that is how the Council has characterised sign 4. Given that "Discount Chemist" identifies the business, then based on the evidence of Mr Gance as to the slogans and images for which he has intellectual property and which he licenses, the "85% off fragrances" fits within the category of being a "logo or other symbol that identifies the business". The definition prohibits general advertising, however there is no prohibition on logos appearing in a building identification sign.
The applicant submits that signs 25 and 26 in effect constitute one sign, which when read together for the purposes of the definition is a building identification sign. The same reasoning applies to signs 28 and 29, and 30 and 31. Signs 21 and 22 can also be read as one sign, and if so, for the same reasons as apply to sign 7, would be a building identification sign.
Respondent's submissions
The Council submits that none of the proposed signs is a "business identification sign". A sign could be a business identification sign if it contained the description "Chemist Warehouse Tamworth", which is the registered business name for the retail pharmacy on the premises, rather than "Chemist Warehouse". The Council submits that s4 of the Business Names Act 2002 prohibits a person from carrying on a business under a business name unless the business name is registered in the name of that person, and that any attempt to carry on the business simply under the name of "Chemist Warehouse" is contrary to the Business Names Act .
The Council accepts that the words "Discount Chemist" would satisfy (a)(ii) in the definition of business identification sign. The Council submits that the other words, including "Up to 50% off prescriptions", "Discount vitamins", "Up to 50% off fragrance packs", "Are we Australia's cheapest chemist" and "Never beaten on price" are at best position statements that do not fall within either of the limbs of the name of the business or the type of business required to enable a sign to be treated as a business identification.
The Council submits that none of the signs comprise building identification signs. There is already a sign that identifies the building, and that is the sign embossed into the front of the building, being "Royal Standard Bottling Department". The sign "Chemist Warehouse" and the other words do not identify or name the building. Words such as "MLC Centre", and "AMP Building" are unique building identification signs, but the words "chemist warehouse" where the words are licensed to be used at numerous other locations around Australia and where there are numerous other uses of that term as registered business name they cannot be said to comprise a building identification sign.
The Council submits that signs 9 and 27 fall within the definition of a "roof or sky advertisement", and that neither is permissible under cl 21 of SEPP 64.
Consideration
The Court of Appeal considered the application of SEPP 64 in Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386, an appeal from the decision of Pain J in Bunnings Pty Ltd v Auburn Council [2003] NSWLEC 212 concerning signage proposed for a retail outlet for hardware and building supplies. The proposed signage was to be located on the eastern faade of the building, separated by a portico entrance area. The sign on the left hand side was a stylised wordmark showing the words "Bunnings Hardware". The sign to the right of the entrance was a hammer in a circle, and the words "Lowest prices are just the beginning..." in a stylised font. The issues in the appeal were whether there had been an error of law in the findings that the application under consideration was for two separate signs, and that the right hand sign was not a business identification sign.
Pain J held that the proposed signage was two signs:
23. The issue which falls to me to determine, however, is not whether the message of the elements of the signage will be considered by a viewer as a single coherent whole but whether or not the physical elements are, in fact and at law, one sign or two within the definition of 'signage' in cl 4(1) of SEPP 64. It is entirely logical to conclude that the proposed signage is two physical signs.
On appeal, Pearlman AJA held that the issue of whether what was proposed was one sign or two did not depend on any particular construction of SEPP 64, but rather is a question of fact, and that Pain J had not erred in law in reaching the conclusion that two separate signs were proposed. On the issue of whether there was one sign or two, Bryson JA held:
21 In view of some observations in the course of argument it seems desirable to say that it is not necessary that the physical elements which compose one sign should all be connected: they usually will be, but in concept several separated elements could compose one sign. There is no expression inconsistent with this in the judgment of Pain J. Her Honour's finding that the application relates to two separate signs was well warranted on the evidence and, as Pearlman AJA has shown, it is a finding of fact which is not open to appellate review.
Hodgson JA held that the question of whether the whole of the relevant signage could be a "sign" can involve questions of law as well as fact, and that it would be an error of law to hold that the physical characteristics of an object or set of objects were necessarily conclusive for a determination whether or not they could constitute a sign. Hodgson JA considered whether the proposed signage was "a sign":
8...Certainly, the physical characteristics of the object or set of objects are important. In this case, the content of the relevant sign or signs is on one long wall, albeit a wall emphatically divided into two parts by an entrance portico. However, the whole wall has the same basic blue colour, and the characters and symbols on both parts of the wall are in the same red and white colours. There is expert evidence, not challenged, that the characters and symbols would be viewed as a single coherent whole.
9 What this single coherent whole does is, by the characters on the left part, explicitly identify the person carrying on the business, and one aspect of the business, namely that it is carried on in a warehouse; and then, by the symbols and characters on the right part, further identify the nature of the business as a hardware business (by the hammer symbol), and to reinforce the name by a logo and slogan quite widely recognised as associated with the name Bunnings. The right hand part also adds an advertising message about lowest prices and other unstated advantages.
10 The definition of "business identification sign" makes it clear that the sign may contain some advertising that does relate to the person who carries on business at the premises or place, at least so long as that advertising does not make it inappropriate to describe the sign as a sign that indicates the name of the person and the business carried on at the premises.
11 In my opinion, having regard to the coherence of the physical set-up and of the message, both parts of the signage are correctly considered as being "a sign" within the definition of business identification sign in SEPP64.
It was common ground before Pain J that if the application was determined as being for two separate signs, the sign to the left of the portico entrance was a "business identification sign". In considering whether the sign on the right hand side of the entrance was a business identification sign, Pain J held that the word "and" at paragraph (a) of the definition of "business identification sign" should be read as being conjunctive, and concluded that:
36...a business identification sign under the definition in cl 4(1) of SEPP 64 must contain the name of the person and the nature of the business carried on at those premises to which the sign is affixed. It also follows that, in addition, such a sign may include optional elements which are those dealt with in (b) of the definition of this term.
Pain J concluded that the separate right hand sign containing the hammer logo and the positioning statement was not a business identification sign.
The Court of Appeal held that it was not necessary that signage "must contain" the nominated matters to be a "business identification sign". Pearlman AJA held:
51...I do not think that the word "indicates" and the words "must contain" are synonymous in the context of the definition of "business identification sign". To adopt the dictionary definition of the word "indicate", what is required to bring the sign within the definition of "business identification sign" is that the nominated matters be pointed out, pointed to, made known or shown. The nominated matters are not required to be contained (in the sense of explicitly stated) within the sign.
Pearlman AJA concluded that while the right hand sign might indicate the business of selling hardware, it did not point out, point to, make known or show the name of the person, and was not a business identification sign.
Hodgson JA held that the two matters specified in paragraph (a) of the definition could be indicated by a sign even though the sign does not actually contain them, and referred to survey evidence of recognition by potential customers of the business. Hodgson JA held:
18 In my opinion, the circumstance that the left-hand sign states the name of the person and implies the nature of the business does not prevent the right-hand sign also being a business identification sign. Plainly, there can be more than one business identification sign for one place of business. In some circumstances, the provision of one clear sign that directly indicates the person and the business could mean that another sign that coveys the same thing indirectly is not a sign that "indicates" these things, because these things are otherwise well and truly indicated. However, if considered independently the latter sign does indicate these things, in my opinion it will be disqualified from being a business identification sign only if it can reasonably be considered to have no identification role, either because any person who sees it would already have seen the other sign or for some other reason. In this case, at least if one accepts that these are two signs, one should accept that persons may see the right-hand sign and not the left-hand sign; and in any event, the hammer logo on the right-hand sign could be considered a clearer indication of the nature of the business than the word "warehouse".
Bryson JA held:
23 In SEPP64 Pt.3 Advertisements has a broad application to "signage" to which cl.4 Definitions gives a very comprehensive meaning. By cl.9 four designated kinds of signs are excluded from the application of Pt.3 and the extensive prohibitions and controls which it imposes, including its comprehensive controls on advertisements. "Business identification sign" is one of the designated exceptions. In my opinion the context shows that in the definition of "business identification sign", "indicates" is used in a sense which is relatively precise: it cannot have been a purpose of cl.9 to create wide or indefinite exclusions from the scheme of control in Pt3, which would not be effective if the exclusions from it were wide. The purpose of the definition is to define the exception for signs identifying name and business, not to open a wide array of signage and advertising which is to be free from the detailed provisions of Pt.3. The indications of the name and the business of the person who carries on business at the place at which the sign is displayed must be relatively clear and concrete if they are to conform to the purpose for which the exclusion is made. The sign on the left hand side, with the words "Bunnings Warehouse" appears to me to exemplify what was intended. Words are not essential: there may be pictograms or other symbols which are so well known that they indicate the name and the business: but there can be few symbols which are so well known as to make an indication of the kind to which the definition of "business identification sign" refers.
Bryson JA considered the survey evidence, concluding that the recognition of the symbol and text fell short of the indication that plain words would give, and did give, on the sign on the left hand side of the entrance. Bryson JA noted:
26 Symbols and slogans are very unlikely to give a sufficiently clear and concrete indication to make a sign quality as a "business identification sign" within the definition in cl.4(1). Express words are not the only way of indicating a name and a business and I see the possibility that a symbolic indication might be so widely understood as to fall within the definition.
Bryson JA concluded:
27...The meaning of "indicates" which should be applied, requires a clear and concrete indication, and indications which are less direct and rely on known associations between logos, slogans or other symbols and an unstated name or business will rarely be so universally understood as to indicate the name and business within the meaning of the definition.
The application the subject of these proceedings identified 31 numbered signs. Signs 1, 2, 4, 5, 17, 20 and 32 are described in the plans as being weathertex, to be affixed to the external masonry of the building. Signs 3, 6, 9, 18 and 27 are double sided internally illuminated lightboxes. Signs 7, 8, 19,11, 12, 13, 14, 15, 16, 21,2, 23, 24, 25, 26, 28, 29, 39, and 31 are window print. The Statement of Environmental Effects (SEE) notes (at p 8) that "some of the window signs have been doubled up in the numbers shown on the drawing table, reflecting top and bottom of the window signs". The applicant submits that while signs 11 and 12, 13 and 14, 15 and 16, 21 and 22, 23 and 24, 25 and 26, 28 and 29 and 30 and 31 are separated by the window framing, they should be read together.
The Council's Statement of Facts and Contentions described signs 2, 3, 4, 5, 6, 10, 11, 13, 15, 16, 18, 21, 23, 24, 25, 28, and 30 as building identification signs, and signs 9 and 27 as roof advertisements, and contended that the remaining 12 signs are "wall advertisements" so that only one is permitted on each elevation of the building. The applicant's SEE identified the type of signage for each of the proposed signs, referring to some as "flush wall sign", and others as "window film sign". My consideration of how each of the proposed signs is to be treated under SEPP 64, including the issue of whether any of them fall within the prohibitions or restrictions contained in Part 3 of SEPP 64, must be undertaken by reference to the definitions in SEPP 64, as interpreted by the Court of Appeal in Bunnings , and not how each of the signs is described in the development application or SEE, or in the Council's assessment report and in its Statement of Facts and Contentions. Each elevation will be considered in turn.
Building elevation A (Peel Steet frontage): signs 1, 2, 3, 4
Signs 1, 2 and 4 are described in the SEE as flush wall signs, and are to be fixed to the masonry exterior wall of the building.
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 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).
Sign 1 states "Up to 50% off prescriptions". The applicant submits that sign 1 contains a logo of the business and may meet (b) of the definition of a business identification sign, however accepts that it does not have sufficient description to meet (a), and as a consequence is a wall sign. Mr Caladine and Mr Lewis agreed that sign 1 is a wall advertisement. I agree that sign 1 does not meet (a) of the definition. It does not indicate, in the sense of providing the "clear and concrete indication" referred to by Bryson JA, or in the sense of making known, as referred to by Pearlman AJA, either the name of the person or the business carried on, and accordingly, sign 1 is not a business identification sign. Sign 1 is 1.8 m by 1.8 m and is not a "commercial sign" as defined in the LEP. Part 3 applies to sign 1.
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.
Sign 3 is an illuminated double sided fin sign projecting from the wall of the building, which states "Chemist Warehouse Discount Chemist". The content of this sign is the same as sign 2, and for the same reasons I am satisfied that it is a business identification sign.
Sign 4 states "Discount Chemist". The applicant submits that sign 4 is a building identification sign. The definition of "building identification sign" is drafted in a similar way as that for "business identification sign", and requires first that the sign "identifies or names a building"; whether the sign also includes the other matters listed such as street number is optional. The frieze along the Peel Street frontage states "Royal Standard Bottling Department", and Mr Patch and Ms James agreed in oral evidence that the building is known as the Brewery building. I agree with Mr Lewis that sign 4 could be read as stating the nature of the business conducted within the building, which is one of the optional matters included in the definition. However, I agree with the Council that the words "Discount Chemist" do not identify or name the building, and in my view sign 4 is not a building identification sign. Nor does sign 4 indicate the name of the person, and accordingly it does not meet the requirements of (a) of the definition of business identification sign.
Signs 2 and 3 are business identification signs, and permissible. Whether signs 2 and 3 should be approved depends on the assessment required by cl 8 of SEPP 64, below. Sign 1 and sign 4 are not excluded from Part 3 of SEPP 64, and each is a "wall advertisement" as defined. Clause 22 of SEPP 64 applies to wall advertisements, and provides that only one wall advertisement can be displayed per building elevation (cl 22(1)). Consent may be granted to a wall advertisement only if, inter alia, a building identification sign or business identification sign is not displayed on the building elevation (cl 22(2)(g)). Signs 1 and 4 are on the same elevation as that proposed for signs 2 and 3, and if either of those signs is approved on a merits assessment, cl 22(2)(g) would not permit either sign 1 or sign 4 to be approved.
Building elevation B (Facing the carpark and Spotlight): signs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18
Sign 5 includes the word "Entry" on what would otherwise be a business identification sign. That word would not be one of the optional matters provided in (b) of the definition of business identification sign, and if (b) exhausts the matters that can be included, sign 5 is not a business identification sign. Sign 5 is a wall advertisement to which Part 3 applies.
Sign 6 is an illuminated light box, under the awning, which states "Chemist Warehouse" and "Discount Chemist", and is a business identification sign.
Sign 7 states "Discount Chemist" and "Up to 85% off fragrances". The applicant submits that sign 7 is a building identification sign. The applicant relies on the evidence of Mr Gance as to the slogans and images for which he has intellectual property and which he licenses, and submits that the words "Up to 85% off fragrances" is a logo or symbol that identifies the business, which would fall within the optional matters permitted in a building identification sign. The applicant submits that "symbol" is both the words used and how they are conveyed, such as size, colour, font, slant and shape, considered in their context, and that on that approach this does not advertise individual products for sale, but identifies what the business does.
I am not persuaded that this is how sign 7 should be regarded. As noted above, I consider that the words "Discount Chemist" indicates the nature of the business, rather than identifying or naming the building in which it is carried on. The addition of the words "Up to 85% off fragrances" does not in my view go any further to identify or name the building. The Macquarie Dictionary defines "logo" to mean "a trademark or symbol designed to identify a company, organisation, etc", and "symbol" to mean
1. something used or regarded as standing for or representing something else; a material object representing something immaterial; an emblem, token, or sign.
2. a letter, figure, or other character or mark, or a combination of letters or the like, used to represent something: the algebraic symbol, x; the chemical symbol, Au.
3. something which expresses, through suggestion, an idea or mood which would otherwise remain inexpressible or incomprehensible; the meeting-point of many analogies.
Having regard to these definitions, it is unlikely, in my view, that a statement such as "Up to 85% off fragrances" could be regarded as being a representation of something else, or as constituting a combination of letters used to represent something: it is a statement in words of some of the goods for sale at the premises and how the business is conducted, and would fall within the prohibited general advertising of products, goods or services. While it is proposed in the red and white combination of colours used by Chemist Warehouse, it is not included in the signs and slogans identified at paragraph 10(c) of Mr Gance's affidavit, or in the description of the Chemist Warehouse store image detailed at paragraph 10(d). At best it is, according to Mr Gance's evidence, indicative of the way in which the business is conducted in contrast to an average pharmacy. I am not persuaded that it is a "logo or other symbol that identifies the business" which would be one of the optional inclusions in either a building identification sign or a business identification sign.
The same reasoning applies to sign 8. Sign 8 states "Chemist Warehouse" and "Never Beaten on Price!". While the latter statement is one of the seven signs or slogans included by Mr Gance in the list of Chemist Warehouse signs and slogans, it is not one of the trademarks listed at paragraph 8 in his affidavit. I accept that its content, colour and style are part of the intellectual property licensed by Mr Gance to Chemist Warehouse Tamworth, however that does not necessarily mean that it is a "symbol or logo that identifies the business", for the purposes of the definitions of building identification sign or business identification sign. It is a combination of words stating how the business is carried on. Sign 8 is not a building identification sign.
I am not persuaded that the words "Never Beaten on Price" in sign 8 "indicates" the name of the business or the business carried on for the purposes of (a) of the definition of a business identification sign. Whether it has such an effect would depend on whether it is sufficiently distinctive to indicate those matters. While Bryson JA considered in Bunnings that there may be pictograms or other symbols that are so well known that they indicate the name and the business, that was not the case on the survey evidence before the court in Bunnings . While I accept the evidence of Mr Gance that a number of the signs proposed are part of the distinctive get-up licensed to proprietors using the Chemist Warehouse branding, there is no survey evidence as to recognition before me. I am not persuaded that this combination of words, even using a particular colour, font and style, is a "logo or other symbol that identifies the business".
Signs 7 and 8 each provide part of the indication required to meet paragraph (a) of the definition of business identification sign, but not all. Both signs are larger than the maximum specified for a "commercial sign". Signs 7 and 8 are not business identification signs or otherwise excluded from Part 3. If signs 7 and 8 could be read together as constituting one sign, it would contain the elements required to meet (a) of the definition of "business identification sign", however the inclusion of "Up to 85% off fragrances" and "Never Beaten on Price" would not be included in the optional matters permitted in a business identification sign. Signs 7 and 8 fall within Part 3 of SEPP 64.
However, I do not agree with the Council that they should be regarded as wall advertisements, and subject to cl 22. Both are proposed to be fixed, as window film, to windows. The definition of "wall advertisement" is restricted to an advertisement painted on, or fixed to, a wall. Clause 22(2)(e) provides that the consent authority may only grant consent if the advertisement "does not extend over a window or other opening", which would confirm a reading of the definition of wall advertisement that it is signage on a wall rather than any other part of a building. Adopting this approach would mean that signs 7 and 8 would not, by virtue of cl 22(2)(g), be prohibited if there is a business identification sign on this elevation, but would still be required to be assessed against the objectives in cl 3(1)(a) and the criteria in Schedule 1. However, if I am wrong on the interpretation of "wall advertisement" and it includes an advertisement fixed to a window, signs 7 and 8 would not be permissible if there is a business identification sign on this elevation.
Sign 9 is an internally illuminated light box, to be erected on the roof of the building above the entrance adjoining the carpark, which includes the words "Chemist Warehouse" and "Discount Chemist". The applicant submits that this sign is a business identification sign and permissible. The Council submits that the sign is a roof or sky advertisement, and that it is not permissible under cl21 of SEPP 64. Clause 21(1) provides:
21 Roof or sky advertisements
(1) The consent authority may grant consent to a roof or sky advertisement only if:
(a) the consent authority is satisfied:
(i) that the advertisement replaces one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed, or
(ii) that the advertisement improves the finish and appearance of the building and the streetscape, and
(b) the advertisement:
(i) is no higher than the highest point of any part of the building that is above the building parapet (including that part of the building (if any) that houses any plant but excluding flag poles, aerials, masts and the like), and
(ii) is no wider than any such part, and
(c) a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct and the display of the advertisement is consistent with the development control plan.
The expert planners were in agreement that sign 9 falls within the definition of "roof or sky advertisement", and that there is no development control plan prepared as specified in paragraph (c) of the definition.
The content of sign 9 is the same as for sign 2, which I am satisfied is a "business identification sign". Sign 9 is to be erected on the roof, above the eaves of the building, and it falls within the definition of a "roof or sky advertisement". In determining whether sign 9 should be regarded as a business identification sign, and excluded from consideration under Part 3, or considered as a "roof or sky advertisement" which is separately defined in SEPP 64 and for which specific constraints apply in cl 21, the scheme of the SEPP is relevant. At [23] in Bunnings Bryson JA observed that Part 3 of the SEPP imposes extensive prohibitions and controls including comprehensive controls on advertisements, and that the scheme of control in Part 3 "would not be effective if the exclusions from it were wide". That discussion was in the context of applying the definition of "business identification sign", however in my view it is equally relevant to determining whether sign 9 should be considered as a business identification sign and assessed in accordance with cl 8, or be considered as a "roof or sky advertisement" so that it is assessed under Part 3 of SEPP 64, including the specific provisions in cl 21. The definition of business identification sign focuses on the content of the sign; the definition of "roof or sky advertisement" on its location. Clause 21 imposes additional criteria which must be satisfied before a consent authority can grant consent to a roof or sky advertisement, including whether the advertisement improves the visual amenity of the locality, and the finish and appearance of the building and streetscape. These provisions can be read as reflecting a concern that advertisements located on, or above, the parapet or eaves of a building would be more prominent, and potentially more obtrusive, than those located for example on a wall. Having regard to the scheme of SEPP 64, I consider that the location of sign 9 rather than its content is to be regarded as the relevant factor, and sign 9 should be considered on the basis that it is a "roof or sky advertisement". Clause 21(1)(c) is not satisfied, and consent could not be granted to sign 9. If I am wrong on that, and sign 9 should properly be excluded from consideration under Part 3 on the basis that it is a business identification sign, whether it should be approved would depend on its assessment under cl8 of SEPP 64.
Sign 10 is a window film that reads "Entry", and measures 1700 x 450mm. If reduced in size, it would fall within (b)(iv) of the definition of "commercial sign" in the LEP and be exempt development. As presently proposed, it requires assessment under cl 8.
Signs 11, 12, 13, 14, 15 and 16 are proposed as window print, and are numbered and dimensioned as separate signs in the development application. Mr Caladine's evidence was that these signs, and signs 21 to 26 and 28 to 31, are located on the windows for security reasons to screen the prescription medicines located within the rear storeroom of the building. Mr Caladine stated in the joint report that the proposed signs achieve the security objective, and serve a dual purpose in providing advertising for the chemist that is primarily visible from the internal car park. Signs 11, 13 and 15 measure1840 mm x 520 mm, and are located on the top glazed section of window. Signs 12 and 16 measure 1840 mm x 1420 mm, and sign 14 is 1840 x 2030; these three signs are located on the lower glazed section of window.
The applicant submits that these signs should be read as three signs, rather than six separate signs. The Court of Appeal in Bunnings accepted that signs taking the form of separated elements can still constitute one "sign". It is not necessary that the physical elements are all connected, and the issue is whether they are viewed as a coherent whole. The photographs in Exhibit B, and the view, confirm that the metal framing of the windows is relatively narrow, and not readily discernible at a distance. I accept that these signs can be read as three signs, in particular because the content mirrors that proposed for what is clearly one sign in the form of signs 2, 3 and 9. Turning to the content, for the reasons stated in relation to sign 2, I am satisfied that signs 15 and 16 together are a business identification sign. Sign 12 states "Australia's Cheapest Chemist"; I am satisfied that that indicates the nature of the business and that signs 11 and 12 together are a business identification sign.
Sign 14 states "Up to 50% off prescriptions". For the same reasoning as applied to signs 7 and 8, signs 13 and 14 read together would indicate part of the requirements of (a) in the definition of business identification sign, but not both, and "Up to 50% off prescriptions" could not be included. For the same reasons as apply to signs 7 and 8, if these signs are not a "wall advertisement" they would not be prohibited if there is a business identification sign on this elevation, but would still be required to be assessed against the objectives in cl 3(1)(a) and the criteria in Schedule 1. If I am wrong on that, and they are a wall advertisement, they could not be approved if there is a business identification sign on this elevation.
Sign 17 states "Open 7 Days", and measures 1800 x 550 mm. It provides general information about the operation of the premises, and could, if reduced in size, fall within (b)(iv) of the definition of "commercial sign" in the LEP and be exempt development. As presently proposed, it is a wall advertisement and would not be permitted if there is a business identification sign on this elevation.
Building elevation C (Facing the carpark and Brewery Lane): signs 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31
Sign 18 is a lightbox under the awning stating "Discount Chemist", measuring 2200 x 400mm. It is not a business identification sign, and is too large to be a commercial sign, and must be assessed under Part 3.
Sign 20 states "Open 7 Days". The applicant accepts that it contains nothing that could be characterised as a business identification sign or a building identification sign because it does not contain any reference to "Chemist Warehouse"; however, it could by appropriate condition be reduced in size to 1.2 m x 0.6 m so that it would fall within the definition of "commercial sign" and be exempt development pursuant to the LEP 1996. In its proposed form, it is a wall advertisement and cannot be approved if there is a business identification sign on this elevation.
The applicant submits that signs 21 and 22, 23 and 24, 25 and 26, 28 and 29, and 30 and 31, should be read as five, rather than 10 signs. These windows are similar to those on the side elevation, and for the same reasons I agree that these signs can be regarded as five signs. Signs 23 and 24 are a business identification sign. Signs 21 and 22 do not meet (a) of the definition of business identification sign. Signs 25 and 26, 28 and 29, and 30 and 31 provide part, but not both the elements in (a) of the definition. For the same reasons as apply to signs 7 and 8, if these signs are not a "wall advertisement" they would not be prohibited, but would still be required to be assessed against the objectives in cl 3(1)(a) and the criteria in Schedule 1. If I am wrong on that, and they are a wall advertisement, they could not be approved if there is a business identification sign on this elevation.
Sign 27 is an illuminated lightbox on the roof stating "Chemist Warehouse Discount Chemist". In content it meets the definition of a business identification sign, however, for the reasons given in relation to sign 9, it should be assessed as a roof or sky advertisement, and would be prohibited by c 21.
Sign 32 includes the matters specified in (a) of the definition of business identification sign, however includes "Up to 50% off prescriptions". That is not included in the optional matters in (b), and sign 32 is a wall advertisement.
Conclusion
On the Peel Street elevation, signs 2 and 3 are business identification signs, and are subject to assessment in accordance with cl 8 of SEPP 64. If either is approved, signs 1 and 4 cannot be approved. On building elevation B, signs 6, and 11 and 12, and 15 and 16, are business identification signs, and subject to assessment under cl 8. If any of these signs is approved, signs 5 and 17 cannot be approved. On building elevation C, signs 23 and 24 are business identification signs, and subject to assessment under cl 8. If either is approved, signs 20 and 32 cannot be approved. If the definition of "wall advertisement" is read to exclude an advertisement wholly contained on a window, signs 7 and 8, 10,13 and 14, 21 and 22, 25 and 26, 28 and 29, 30 and 31, are advertisements which are to be assessed in accordance with cl 13. If the definition has a broader meaning, these signs cannot be approved. Signs 9 and 27 cannot be approved.
Assessment under SEPP 64, the LEP, and the DCP
In determining whether consent should be granted to those signs identified above as being capable of being approved, I note that both cl 8 and cl 13 of SEPP 64 direct attention to the objectives in cl3(1)(a) and the assessment criteria in Schedule 1, but in slightly different terms. Clause 8 requires that the consent authority must not grant consent unless it is satisfied that the signage is consistent with the objectives, and that it satisfies the assessment criteria in Schedule 1. Clause 13 requires that the consent authority must not grant consent unless the advertising is consistent with the objectives, and the consent authority has assessed it in accordance with the assessment criteria and is satisfied that the proposal is acceptable in terms of its impacts.
Clause 7 of SEPP 64 provides that SEPP 64 prevails in the event of an inconsistency with another environmental planning instrument. Development consent is required under the LEP for advertising signage, and none of the proposed signs is exempt development under the LEP. In considering whether consent should be granted to those signs identified above as being capable of being approved under SEPP 64, the aims of the LEP and the objectives of the 3(a) Business zone must be taken into consideration. The evidence, and submissions, focussed on the requirements of the heritage provisions in the LEP, in particular cl 44 of the LEP which identifies a number of factors that must be taken into account, including the significance of the building as a heritage item, and the extent to which the carrying out of the development would affect the heritage significance of the building.
The DCP provides additional matters to be considered, including design, colour scheme, and provides special requirements in cl 12 for historic buildings.
The Council contends that the proposed advertisements are not consistent with the objectives of SEPP 64 as set out in cl 3(1)(a), on the basis that they are not compatible with the desired amenity and visual character of the area, are not in suitable locations and are not of high quality design and finishes. The Council contends that the proposed advertisements do not satisfy the assessment criteria in Schedule 1. In particular, the Council contends that the excessive number, repetitive content and size of the advertisements combined with the use of primary colours and the illumination of five advertisements will result in a development which is not compatible or consistent with the existing or desired future character of the area which contains a number of heritage items; will have a negative impact on the streetscape view setting and context of the area; will have a negative impact on the Peel Street and Jewry Street intersection which is considered to be a gateway to the Tamworth CBD and the Taminda Industrial area; is not compatible with the scale and proportion of the existing heritage building; will result in the appearance of the heritage building dominated by signage which conflicts with maintaining the prominence and contributory values of the building's architectural features; detracts from the visual interest of the heritage building and results in a cluttering effect of the advertisements on the front faade; does not demonstrate innovation and imagination in design; and has the potential to contribute to driver distraction at the intersection of Peel and Jewry Street.
The Council contends that the proposal does not comply with cl 44 of the LEP because the excessive number, repetitive content, size and location of the proposed signs, combined with the use of primary colours and illumination of five of the advertisements, results in a detrimental impact on the heritage item. The Council contends that because of those concerns, the proposal does not satisfy the provisions of the DCP, in particular that it is not in scale with the surroundings, is a clutter of "add-ons" or "after thoughts", is not appropriate to the surrounds, does not complement the building, or integrate with the building's form and colouring, and dominates the building.
The applicant submits that the proposed advertisements should be assessed in two separate categories, namely the Peel Street elevation, and the two elevations facing the carpark. In relation to the Peel Street elevation, the signage is needed to have a viable business, and locating the proposed signs on the pillars of the building is appropriate to achieve a balance without being out of character in the streetscape. The signage is effective because it attracts consumers. The public will have predominantly only the Peel Street elevation to recognise that the building houses a Chemist Warehouse, and the three signs cover at most 3 percent of the Peel Street facade. In relation to the other elevations, the windows are presently screened and would be obscured in any event, and the idea of the windows would not be lost. The applicant would accept a condition that the content of the window signage could not be changed without the consent of the Council.
The applicant accepts that sign 1 could be changed to read as a building identification sign, and sign 20 could be reduced in size so as to be exempt development. More generally, the applicant submits that if certain signs are susceptible to modification or deletion the applicant would not oppose the court imposing a condition reflecting those findings. The background colour could be changed from a primary yellow to a manila or light yellow colour.
Heritage evidence
The Statement of Heritage Impact prepared by Mr Patch and provided with the development application noted (at p6) that the building, as the former Royal Standard (Brewery) Bottling Department, is a partial remnant of the brewery established in the latter half of the 19 th century and operated until the early 1920s. In oral evidence Mr Patch stated that the building is part of a complex that at one time employed up to 100 people, and is an important building with local association with the brewery. A large part of the complex was demolished in1936. The building was used for industrial purposes by Coco-Cola Amatil, and was refurbished in 2001 for the retail reuse of the site by Spotlight.
As noted above, I do not consider that the two roof advertisements (signs 9 and 27) can be approved. If I am wrong in that analysis, the signs would need to be considered in accordance with cl 8 of SEPP 64 and the LEP and DCP. The scale and location of both signs above the building is not appropriate in the context of the 2001 additions to the original building, and these signs would not satisfy the assessment criteria in Schedule 1 and should not be approved.
Conclusion
For the reasons stated above, signs 1, 4, 5, 7, 8, 9, 10, 13, 14, 17, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31 and 32 are not approved. Signs 2 and 3 can be approved with a modification of the background colour in accordance with the Council's proposed condition 5. I am satisfied that it would be appropriate for signs 10, 17, 20, and the "Entry" component of sign 5 to be altered so as to comply with the definition of "commercial sign" in Schedule 5 to the LEP. Signs 6, 18, 11 and 12, 15 and 16, and 23 and 24 can be approved. Sign 32 can be approved if altered to delete the words "Up to 50% off prescriptions".
The issue of whether there should be a curfew for illumination of signs 3, 6 and 18 was not directly addressed in evidence, other than by Mr Caladine, or in submissions, and it is appropriate to provide an opportunity for the parties to consider their positions and provide submissions on this issue. I propose to make directions, in consultation with the parties, for the provision of conditions or amended plans that reflect these findings.
Linda Pearson
Commissioner of the Court
PROPOSED SIGNAGE ELEVATIONS A and C
PROPOSED SIGNAGE ELEVATION B
Amendments
08 December 2011 - Typographical error sign "2" changed to "3"
Amended paragraphs: 112
Decision last updated: 08 December 2011
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