Aitken v Blue Mountains City Council

[2010] NSWLEC 1340

Land and Environment Court

of New South Wales

CITATION:	Aitken v Blue Mountains City Council [2010] NSWLEC 1340
PARTIES:	APPLICANT James Aitken RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10607 of 2010
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Advertising sign Business identification sign
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 64 - Advertising and Signage Blue Mountains Local Environmental Plan 2005 Blue Mountains Development Control Plan No 21 - Advertising and Information Signage Land and Environment Court Act 1979
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
DATES OF HEARING:	17, 23 November 2010
DATE OF JUDGMENT:	14 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr K Webber Wilshire Webb Staunton Beattie RESPONDENT Mr A Seton Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

14 December 2010

10607 of 2010 Aitken v Blue Mountains City Council

JUDGMENT

1 Commissioner: This is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the determination of the Blue Mountains City Council (the Council) to refuse development consent for the erection of an illuminated wall sign on the western elevation of a building at 7 Great Western Highway Valley Heights (lot 200 DP1033450) (the site).

2 The site is located on the northern side of the Great Western Highway and has a single storey building housing three businesses, a real estate office, a café and a gift shop. The proposed sign is triangular in shape, and 4 sqm in area. A canvas sign previously in the same location as that proposed in this application contained the words:

“Fine Food
Great Coffee
CAFÉ”

3 To the west and north of the subject site is bushland. Immediately adjoining the site to the west is a vacant lot. To the east of the site are residential properties, and further to the east along Great Western Highway are commercial premises including a bus depot, a service station, and a Bunnings hardware store.

4 The issues between the parties are whether the development is compatible with the existing and desired amenity and visual character of the area; whether it would result in an unacceptable proliferation of signage; and whether it would have an adverse impact on the amenity of future residential development to the west and north of the site.

Background

5 The three businesses operating on the site do so pursuant to development consent X/05/0595 granted on 1 November 2006 for the conversion of the then existing use. The development consent included consent to one wall sign and three above awning signs on the southern elevation of the building. The hours of operation of the development were limited by condition 13 to 8.30am to 10.00pm seven days a week.

6 On 20 February 2008 the Council granted development consent X/1268/2007 for additional signage, being a pylon sign, and a canvas sign on the western elevation of the building. Condition 2 provided:

To protect the visual amenity of the neighbourhood and city, signage shall be limited to the details included with the application.
Any illumination of the pylon sign is limited to the hours of operation for the development and is to be minimised so as to ensure no adverse impact on adjoining properties. Flashing signs are not permitted.
The temporary sign on the western wall of the building is to be removed within three (3) months from the date of consent.

Planning Controls

7 The site is zoned Living-Bushland Conservation under the Blue Mountains Local Environmental Plan 2005 (the LEP). Clause 32 provides that in the Living-Bushland Conservation zone, advertising structures are permissible with consent; development for the purpose of “commercial premises”, “refreshment rooms” and “shops” is prohibited.

8 Clause 9 of the LEP provides:

9 Considerations before development consent

Before granting consent to the carrying out of any development on land to which this plan applies, the consent authority is to be satisfied that the development:
(a) is consistent with the aim of this plan and the principles and practices of ecologically sustainable development, and
(b) complies with the principal objectives of the plan that are relevant to the development, and
(c) complies with the locality management provisions within Part 2 that apply to the land, and
(d) complies with the assessment requirements and provisions within Part 3 that are relevant to the development, and
(e) complies with the development provisions within Part 4 that are relevant to the development.

9 The principal objectives of the LEP are:

12 Principal objectives of the plan

The principal objectives of this plan are:
(a) To maintain the unique identity and values of the City as the “City within a World Heritage National Park”.
(b) To meet the needs of residents, visitors and the business community through the provision of an appropriate balance of land uses and built forms that respond to the principles of ecologically sustainable development.
(c) To conserve and enhance, for current and future generations, the ecological integrity, environmental heritage and environmental significance of the Blue Mountains.
(d) To identify and conserve the distinct Aboriginal and European cultural heritage of the built forms and landscapes of the Blue Mountains.
(e) To preserve and enhance watercourses, riparian habitats, wetlands and water quality within the Blue Mountains, the Hawkesbury-Nepean River catchment and Sydney’s drinking water catchments.
(f) To prescribe limits to urban development having regard to the potential impacts of development on the natural environment and the provision, capacity and management of infrastructure.
(g) To limit exposure to bush fire hazards and to ensure that development of bush fire prone land incorporates effective measures that protect human life, property and highly valued environmental and other assets from bush fire, without unacceptable environmental impacts.
(h) To identify and retain the diverse built and landscape elements that contribute to the character and image of the Blue Mountains.
(i) To promote the provision of accessible, diverse and affordable housing options to cater for the changing housing needs of the community.
(j) To ensure that the social needs of existing and future residents are met through the provision of appropriate community facilities, open space and services.
(k) To provide sustainable employment opportunities and strengthen the local economic base by encouraging a range of enterprises, including tourism, which respond to lifestyle choices, emerging markets and changes in technology, while protecting local amenity, character and environmental values.
(l) To ensure that the siting and design of new buildings, facilities and structures intended primarily for public use make reasonable provision for safe and comfortable access to those buildings for all people, including older people, people with a disability and those with limited mobility.
(m) To integrate development with transport systems and promote safe and sustainable access opportunities, including public transport initiatives, walking and cycling.

10 The locality provisions are set out in Part 2 Div of the LEP. Clause 13 provides:

13 General locality management

(1) Consent shall not be granted to the carrying out of any development on land to which this plan applies unless:
(a) the development complies with the zone objectives within Division 2 (Zone objectives) that apply to the land and that are relevant to the development, and
(b) the development proposed to be carried out is permissible within the zone applying to the land in accordance with Division 3 (Permissibility of land use).
(2) Consent shall not be granted to development on land that adjoins land in another zone unless the development proposed to be carried out does not compromise achieving the objectives of the adjoining zone and the consent authority is satisfied that sufficient consideration has been given to the measures proposed to reduce any adverse impacts of the development on land within that adjoining zone.

11 Clause 15 provides for locality management in the living zones, and subclause (3) provides:

(3) Consent shall not be granted to development within the Living—Bushland Conservation zone unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified within Part 3 of Schedule 2, and complies with those provisions.

12 The objectives of the Living-Bushland Conservation zone are:

24 Living—Bushland Conservation zone

The objectives for the Living—Bushland Conservation zone are as follows:
(a) To allow for residential development in the form of single detached dwellings where this development is within the capacity of the environment to sustain such development and is undertaken in a manner that minimises impact on environmentally sensitive areas.
(b) To preserve and re-establish native bushland in areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire.
(c) To permit only low density residential land uses and to retain large allotment sizes in fringe urban locations or locations that do not have reasonable access to services and facilities.
(d) To allow a limited range of non-residential land uses only where these are conducted in association with a predominantly residential land use.
(e) To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for and harmonise with the bushland character of the locality.
(f) To encourage the retention and re-establishment of native bushland along significant fauna corridors and in areas of high visual significance, including escarpment areas and along the Regional Transport Corridor.

applies. The aims and objectives 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
(b) to regulate signage (but not content) under Part 4 of the Act, and
(c) to provide time-limited consents for the display of certain advertisements, and
(d) to regulate the display of advertisements in transport corridors, and
(e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.
(2) This Policy does not regulate the content of signage and does not require consent for a change in the content of signage.

14 Clause 8 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.

15 Part 3 of SEPP 64 applies to signage other than business identification signs; building identification signs; signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it; and signage on vehicles. A “business identification sign” is defined as 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.

(the DCP) applies. Clause 3 states that the objectives of the DCP are:

1.To provide a consistent approach to the control, location and design of advertisements and information signage
2.To encourage advertising signs which are compatible with the desired amenity and visual character of an area
3.To ensure that signage is of a high quality design and finish
4.To ensure signage is adequate and effective and recognises the legitimate need for signs providing directions, business identification and promotion
5.To prevent the proliferation of signage and to encourage the rationalisation of existing and proposed signs
6.To ensure signs are not located where they may be hazardous to pedestrians and motorists.

17 Clause 5 defines “ wall sign or wall advertisement” to mean “a sign that is painted on or fixed flat to the front or side wall of the building”.

18 Part 2 of the DCP provides Area Specific Guidelines, which include General Assessment Criteria which the Council is required to consider when determining an application to erect or display an advertisement or advertising structure. Part 2 includes Specific Guidelines and Controls. The controls for “Residential, Rural, Bushland/non-urban Areas and Other zones” state:

Signage is often required in residential areas to advertise the location of a variety of commercial and non-commercial uses such as home businesses and occupations, restaurants, holiday accommodation, schools etc. Generally signage, other than Business or Building Identification signs, are considered unacceptable and in most circumstances are prohibited under the provisions of State Environmental Planning Policy No. 64.
It is essential that the character and visual amenity of these areas are not degraded by a proliferation of inappropriate and poorly located signage. By ensuring that signs are kept to a maximum size and are appropriately located, the visual character of residential, rural, bushland/nonurban areas can be preserved for the future.
Provisions

Existing uses
Signage relating to local shops and lawfully established nonconforming uses shall be determined on its individual merit. Signage must have regard to the scale of development to which it relates and to the character of development in the vicinity. More specifically, such advertising should:
not be permitted on walls adjoining neighbouring residential properties
generally be located on the street facing wall of buildings or address the street frontage
be below the roof eaves line or parapet line, and relate to the architectural appearance of the building and its environs
Signage design and placement
Signs should be discreet and professionally designed and be consistent with the design and style of surrounding development and character. Colour schemes of signs should complement the colour schemes of surrounding properties and not be excessively bright or dominant.
A business or building identification sign in a residential area may be erected on a pole or posts and should be oriented parallel to the street and where possible be located on private property only
Signs must not be placed where they are hazardous or obstructive to traffic
Total signage area:
All signs shall comply with the design criteria in Part 3
Only one business or building identification sign is permitted per property. In LEP 1991 residential zones signs may have a maximum area of 0.7 m² and must relate to home industry or home occupation. In LEP for residential areas science can have a maximum area of 0.75 m² and must relate to a home business or home occupation
Schedule 1 of LEP 4 permits some forms of commercial development under the residential 2(c1), 2(c2) and 2(d) zones. Signage in these areas requires Council consent and must not exceed 0.8 m² in area.
For approved commercial businesses a maximum of two signs are permitted per site and no more than one of these may be a freestanding sign. The total signage area must not exceed 8 m².

Evidence

19 The appeal commenced on site as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The site view included a view by car travelling east on the Great Western Highway past the site. The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented to my determining the matter under s34(4) of the Court Act following a hearing, and consented to the evidence from the site view being part of the evidence in the proceedings.

20 The applicant gave oral evidence, stating that the site had been used previously as a furniture business and then as a restaurant and for wedding receptions. The pylon sign has been there for some time, and he altered it to add the triangular part at the top. The temporary sign on the wall was to provide notice of the new business, with the word “Café”. Local people know the real estate office and the gift shop are there. Since the temporary sign has gone there has been an impact on the business, lots of horns sounding, and he has observed people reversing to enter the drive.

21 Expert town planning evidence was given by Mr Robert McGuinness on behalf of the applicant and Mr Byron Tully on behalf of the Council. Mr McGuiness and Mr Tully prepared a joint report, and gave oral evidence.

22 Mr McGuinness and Mr Tully agreed that the proposed sign would only be visible when approaching from the west, and that the sign would be viewed for a distance of about 80m, or if travelling at the speed limit of 80kph, approximately 3.6 seconds, from the driveway access to the site. Mr McGuinness and Mr Tully disagreed on whether the proposed sign would be compatible with the existing and desired future visual character of the area, and whether it would result in a proliferation of signage.

Consideration

23 It was common ground that the proposed sign is permissible with development consent under the LEP, and under the SEPP if it is a “business identification sign” as defined in the SEPP. If it is not a “business identification sign”, cl10(1) of the SEPP would prohibit it in the Living-Bushland Conservation zone. While the text of the proposed sign is not settled, this appeal has proceeded on the basis that if approved the sign could be worded so as to meet the definition of “business identification sign”.

24 In undertaking the assessment of the application required by s79C of the Act, I have taken into account that the applicant proposes conditions limiting the lux output or brightness of the sign to be equal to or less than that of the existing approved signs on the site, and that it be illuminated between the hours of operation of the café, being 8.30am to 10.00pm each day.

25 The Council’s Statement of Facts and Contentions includes the contention that the proposal would have an adverse impact on the amenity of future residential development to the west and north of the site. The vacant land adjoining the site to the west and north is within the Living-Bushland Conservation zone, and a dwelling house could, with development consent, be erected. It was common ground that the proposed sign would not be seen from the residential property to the north, however if a dwelling house were erected to the west of the site, it would be seen. Mr McGuinness’ evidence was that in that case the sign would most likely be screened from view and would be of little value. The applicant indicated that he would be prepared to accept a condition that the consent would lapse and the sign removed upon the construction of a dwelling house or houses in that part of the zone to the west of the site. On the basis that an appropriate condition to that effect could be imposed, I am satisfied that potential impact on the amenity of future residential development would not be a basis for refusal of the application.

26 The Council’s other contentions concern compatibility with the existing and desired amenity and visual character of the area, and proliferation of signage, and inconsistency with the provisions of the SEPP and the LEP. There was no issue as to the design or aesthetic appearance of the proposed sign.

Character of the Area

27 The Council contends that the proposed sign is not compatible with existing and desired amenity and visual character of the area. The site and adjoining sites are zoned for residential purposes and the site is surrounded by residential uses and bushland, and when combined with the existing signage on the site will be visually intrusive and contribute to a massing of signage. The applicant submits that whether a narrow approach, namely looking at the zone, or a broader approach, to locality or area is taken, the proposed sign is compatible with the design, amenity and visual character of the area. The objectives of the LEP do not readily relate to signs in the unique circumstances and location of this proposal; however the sign does comply with the zone objectives, including cl24(e). The proposal complies with the objectives of the DCP, in particular objectives 2 to 6.

28 Mr McGuinness was of the opinion that that the existing character of the area is that of a mixed urban/commercial precinct with a highly visible railway line, and that the desired future character of the area as identified in the LEP and DCP is unlikely to be achieved given the nature of existing and likely future development. Mr Tully was of the opinion that the existing visual character approaching from the west has a strong bushland presence which is unlikely to change as the land is zoned Environmental Protection.

29 Clause 8 of the SEPP requires that I be satisfied that the sign is consistent with the objectives of the SEPP in cl3(1)(a), and that is satisfies the assessment criteria in Schedule 1 to the SEPP.

30 Part 1 of Schedule 1 addresses the Character of the Area, and the first criterion is whether the proposal is compatible with the existing or desired future character of the area or locality in which it is proposed to be located. The objective in cl 3(1)(a)(i) of the SEPP aims to ensure that the signage is compatible with the desired amenity and visual character of the area.

31 The SEPP does not define the “area” to be considered in assessing compatibility. The site, the vacant land to the west, and the five residential properties to the east, are within the Living-Bushland Conservation zone. The land further to the east is zoned Employment – General; the land on the opposite side of the highway is zoned Regional Transport Corridor – Rail. Land to the west of the site and the adjoining lot is zoned Environmental Protection. That land, and part of land on northern part of the site, is an Ecological Buffer area under the LEP. Given the range of different zonings and land uses in what is a relatively confined area, I am of the view that for the purposes of assessment under the Schedule 1 criteria, the “area or locality” is broader than the area within the Living-Bushland Conservation zone, and that it is more appropriate to regard the “area or locality” as being the immediate surroundings of the site, aptly described by Mr McGuinness as being as a mixed urban/commercial precinct with a highly visible railway line, in the context of the extensive bushland immediately to the west and the more urban development further to the east.

32 Both experts turned to the LEP and the DCP to identify the desired future character of the area. I agree with Mr McGuinness that the existing development on the site and that immediately to the east would make it difficult to achieve for the site the objectives in (b), (c) and (d) of cl24 of the LEP. Mr Tully accepted that the proposed sign would be consistent in appearance with those already approved and erected on the site. Adopting the Macquarie Dictionary definition of “compatible” to mean “capable of existing together in harmony”, given the diverse nature of the area and existing and potential land uses, the proposed sign would not be incompatible with the existing character of the area. If assessment of desired future character of the area is undertaken by reference to the objectives in cl24 of the LEP, the sign in its location on the building would not contribute to achieving objectives (c) and (d).

33 Part 2 of Schedule 1 to the SEPP requires consideration of whether the proposal detracts from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas. Based on the site view, and the photographs of the view along the highway from the west (exhibit B), the sign would be illuminated during the operating hours of the café, and visible as soon as a driver had left that part of the highway dominated by bushland. Its function is to alert such a driver that there is a café ahead, and in doing so, while it does not directly impact on the visual quality of the bushland area to the west it makes the transition from bushland to more urban land uses more distinct.

34 Clause 8 of the SEPP requires that I reach a positive state of satisfaction that the proposed sign is consistent with the objectives of the SEPP in cl3(1)(a). In the absence of a finding that the signage is compatible with the desired amenity and visual character of the area, consent must be refused.

35 The LEP requires consideration of whether the proposal complies with the zone objectives. Using the term “comply with” in the sense defined in the Macquarie Dictionary as “to act in accordance with (wishes, commands, requirements, conditions, etc.)”, I am not satisfied that the proposed sign complies with the objective in cl24(e). While the Council did not take issue with the design or colours of the proposed sign in general terms, its function, particularly when it is illuminated, is to provide an alert to drivers travelling east. In fulfilling that function, the siting and colours of the sign provide a contrast to the bushland immediately to the west, rather than harmonising with it. Applying cl13 of the LEP, consent cannot be granted to the application.

Proliferation of Signage

36 It was common ground that there are on the site four approved advertising signs. The total area of approved signage is 23.4 sqm. The pylon sign as constructed is approximately 3sqm, and the three signs on the southern elevation of the building total approximately 18 sqm, totalling 21 sqm.

37 The Council contends that the proposed sign would result in an unacceptable proliferation of signage on the site contrary to Part 2 of the DCP and the SEPP, and contributes to the existing cluttering of signage on the site creating a distracting element that will have a potential adverse impact on driver safety. The applicant submits that the sign provides effective communication in a suitable location, as it addresses a need (being early warning of the café); is located on the building where the café is located; the wording is large and easily read; and the sign addresses only one view corridor (being cars travelling east). The applicant submits that approval of the sign would represent an increase of 1.6 sqm on the area currently approved, which is an increment not so excessive as to warrant refusal, and that the sign does not create or perpetuate clutter or unnecessary proliferation.

38 The experts agreed that the driveway entry to the site is awkward, and that the pylon sign is not easy to read from the highway when travelling at 80kph. The experts agreed that proliferation of signage relates not simply to the number of signs, but their location. Mr Tully was of the opinion that it depends on how they are read. Mr McGuinness was of the opinion that the signs on the site, including the proposed sign, would be consistent in size, font, and colour scheme. Cluttering would be where there are many signs, with different messages, materials or colours in the same vista, and thus the approval of the proposed sign would not constitute cluttering. Mr Tully agreed generally with Mr McGuinness’ approach to cluttering, however he was of the opinion that to add an extra sign could be cluttering.

39 The assessment criteria in Schedule 1 to the SEPP include whether the proposal “reduce[s] clutter by rationalising and simplifying existing advertising”. The proposed sign adds to the existing signage on the site. Based on the site view and the photographs taken when the temporary sign was in place, I am satisfied that for most of the agreed 80m between first vision of the proposed sign and the driveway, both the proposed sign and the pylon sign would be visible. While I accept that the proposed sign would be similar in colour and font to the existing pylon sign, its purpose is to alert a driver to the existence of the café and it would contain a different message. I am not satisfied that the proposal simplifies the existing advertising, or that it reduces clutter.

40 The Council submits that the proposed sign does not comply with the provisions of the DCP as it faces land zoned for residential purposes, exceeds the total maximum total signage area and number of signs for the site, and does not meet the definition of a “wall sign” as it is illuminated. The Council accepts that it has previously departed from the provisions of the DCP, both in relation to this site, and in relation to another development on the Great Western Highway at Lawson, however submits that departure is not justified in this instance, and that three signs and the pylon sign are sufficient for the three businesses on the site. The applicant submits that the relevant provisions in the DCP are those under the heading “Existing uses”, and submits that the Council has not previously followed the provisions for total signage area for the site, which reinforces the position that it does not consider it applicable.

41 In stating that signage relating to lawfully established non-conforming uses must be determined on individual merit, the DCP recognises that numerical or other objectively determined controls may be difficult to apply to such uses. However, I do not read that statement in the DCP as indicating an intention that the provisions headed “Existing uses” are the only applicable provisions in that part of the DCP. In my view the matters addressed in the “Signage design and placement” and “Total signage area” provisions are as relevant to signage for an existing use as they are in other circumstances, and they should also be considered. It is difficult to apply the “Total signage area” provisions to the site where there are three businesses approved. If “the property” is to be read to mean the site, only one business identification sign would be permitted. If is to be read to refer to each business on the site, it would permit three signs on this site. If the provisions relating to “approved commercial businesses” apply, there would be a maximum of two signs, and a total signage area of 8sqm. Whichever of these provisions applies, the existing signage on the site already exceeds the maximum number of signs, and the total signage area.

42 While the DCP is a “fundamental element” or a “focal point” of the decision-making process, its provisions are not determinative: Zhang v Canterbury City Council (2001) 115 LGERA 373. A DCP which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. The development consents for the Lawson property and the Bunnings development to the east of the site were in evidence in these proceedings. In considering whether to permit a further departure from the provisions of the DCP to approve signage beyond that already approved by the Council for the site, I note that the Assessment Report for the development application at Lawson relied upon by the applicant (exhibit C) includes discussion of the departures from the DCP in the context of the building design, and concludes that despite those departures the proposal then before the Council met the objectives of the DCP (and SEPP 64). In relation to the Bunnings development, development consent XM/504/2009/A of 17 November 2009 as modified on 21 May 2010 (Ex 9) requires a further development application for any new advertising signage. However, an earlier consent X/585/2003 dated 22 August 2003 (Ex 10), which the Council concedes is operative, approved two non-illuminated signs on the western elevation. I am not persuaded that either of these approvals supports the applicant’s position that the provisions of the DCP should be given limited weight. The approval of signage for the Lawson development was a considered departure from the provisions of the DCP by reference to its objectives, while the Bunnings approval relates to a site with different zoning which is further along the highway away from bushland, and which is located in proximity to other commercial development including the bus depot and service station.

43 The critical question in considering whether to permit a further departure from the number and area controls of the DCP for this site is whether to do so would achieve the objectives of the DCP. Those objectives include objective 5, “to prevent the proliferation of signage and to encourage the rationalisation of existing and proposed signs”. The proposal is for an additional sign, and does not assist in the rationalisation of existing signs, and it would not achieve objective 5 of the DCP, and approval should not be granted.

44 The objectives of the SEPP include ensuring that signage provides “effective communication in suitable locations” (cl3(1)(a)(ii)). Objective 4 of the DCP is consistent with that objective. The assessment criteria in Schedule 1 to the SEPP include in Part 8 Safety, whether the proposal would reduce safety for any public road. The experts agreed that any early warning provided by the sign would be limited to a distance of 80m, or 3.6 seconds, from the driveway access. The experts disagreed on the impact of the proposed sign on safety. Mr McGuinness was of the opinion that the proposed sign would improve safety by giving drivers early notice of the café. Mr Tully was of the opinion that the proposed wall sign and the existing pylon sign would become visible simultaneously or close together and split drivers’ attention and delay decision making as they attempt to digest and interpret multiple signs. Mr Tully agreed that if the word “Café” was large the sign would be easier to see and would provide an early warning. However, in Mr Tully’s opinion the issue is that a driver would be reading both signs. In considering this evidence, I note that neither expert has qualifications or expertise in traffic engineering. Neither expert accessed accident history records relating to the site that might support the anecdotal observations of the applicant. In the absence of such evidence, it is not possible to find, as the applicant submits, that the sign would improve safety. In the absence of such a finding, and given the limited distance and time during which the sign would provide warning of the cafe, I am not persuaded that the proposed sign would provide effective communication in its location.

45 The proposed sign does not satisfy the assessment criterion in Schedule 1 to the SEPP relating to rationalising and simplifying existing signage, and is not consistent with the objective in cl3(a)(ii) of the SEPP. Applying cl8 of the SEPP, consent should be refused.

Conclusion

46 I am not satisfied that the proposed signage complies with the zone objectives of the LEP, or that it is consistent with the objectives of the SEPP, or that it is appropriate to depart from the numerical controls in the DCP. Applying clauses 9 and 13 of the LEP and cl 8 of the SEPP, development consent must be refused.

47 The orders of the Court are:

1. The appeal is dismissed.
2. Development Application X/82/2010 for an illuminated advertising sign at 7 Great Western Highway Valley Heights, Lot 200 DP1033450, is refused.
3. Exhibits are returned except for exhibits A and 1.

Linda Pearson
Commissioner of the Court