Ann Hrovat v Marrickville Council
[2003] NSWLEC 221
•09/26/2003
>
Land and Environment Court
of New South Wales
CITATION: Ann Hrovat v Marrickville Council [2003] NSWLEC 221 PARTIES: Ann Hrovat v Marrickville Council FILE NUMBER(S): 10620 of 2003 CORAM: Watts C KEY ISSUES: Development Application :- Signs-whether compatible with the building on which they are displayed and whether or not they meet the requirements of the MLEP2001 and the Code. LEGISLATION CITED: ·Marrickville Local Environmental Plan 2001, (MLEP2001)
Code for the Control of the Erection of Signs and Advertising Structures, (Code)
Environmental Planning and Assessment Act 1979, ss 79C and 97CASES CITED: DATES OF HEARING: 26 September 2003 DATE OF JUDGMENT:
09/26/2003LEGAL REPRESENTATIVES:
Dr S Berveling, barrister, instructed by Mr J M Thompson, solicitor (Applicant)
Mr G A Christmas, solicitor (Respondent)
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10620 of 2003
26 September 2003S Watts C
- Applicant
- Respondent
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Marrickville Council (the council) to refuse a development application to advertising signs at premises Lots 1, 2 and 3, SP 3842, being No 466 Marrickville Road, Dulwich Hill.
2 The premises and the proposed signs, which have been already erected, were viewed at the on-site hearing with the parties present.
3 By consent the parties have agreed to modification of two of the signs and the removal of one non-illuminated sign on the Wardell Road frontage. The parties have agreed to conditions.
4 The land is situated on the southern corner of Marrickville and Wardell Roads. It has a frontage to Marrickville Road of about 12.2m, and a depth of about 17.8m and an area of 217m2. Erected on the land is a two-storey commercial building occupied on the ground floor by a real estate office. The real estate office occupies Lots 1, 2 and 3 SP 3842 and has the street address of No 466 Marrickville Road.
5 Access to the first floor of the premises is off Wardell Road via a staircase from the ground floor and is occupied for residential purposes.
6 The surrounding area is characterised by residential properties. On the southern side of Marrickville Road there are single-storey dwelling houses, doctors’ surgeries and on the northern side of Marrickville Road there are residential flat buildings. A three-storey walk-up residential flat building is directly opposite the land on the southwestern corner of Marrickville and Wardell Roads.
7 Further to the south on Wardell Road, there is a two-storey commercial building and dwelling houses. Shops are located on the remaining corners of Marrickville and Wardell Roads.
· The Marrickville Local Environmental Plan 2001, (MLEP2001)
Clause 41(2) relates to advertisements and advertising structures.
· Code for the Control of the Erection of Signs and Advertising Structures, (Code)
8 Development application No 200200200 was lodged with the respondent council on 28 March 2002, to display the following signs on the building:
- Wardell Road Frontage
(ii) One (1) illuminated flush wall sign measuring approximately 3m x 0.6m reading “Professionals”.
- Marrickville Road Frontage
9 By notice dated 29 October 1969, the council granted consent to use the premises (No 466 Marrickville Road) for the purpose of a real estate agency - Development Permit No 4706.
10 By notice dated 14 May 1974, the council granted consent to use the premises (No 466A Marrickville Road) for the purpose of a real estate agency and travel agency - Development Permit No 092.
11 On 17 October 2001 a resident complained to the council (Crms No 106167187) advising that the fluorescent signs shine light through the blinds of his bedroom window causing sleep disturbance.
12 On 3 January 2002 a Notice of Proposed Order was issued under s 121H of the Environmental Planning and Assessment Act 1979 to require the removal of the following advertising structures:
- The flush wall panel sign (illuminated) located on the Wardell Road façade and reads ‘Professionals, Fabos Real Estate Dulwich Hill with telephone number’. The wall panel sign (non-illuminated) located on the Wardell Road facade and reads: ‘Award winning office, sales, property management, commercial leasing and strata management with telephone number’.
The flush wall sign (illuminated) located on the Marrickville Road facade and reads: “Professionals Fabos Real Estate - Dulwich Hill with telephone number”.
13 On 4 February 2002, an Order under s 121B of the Environmental Planning and Assessment Act 1979 issued requiring the signs, as stipulated in the Notice of Proposed Order, be removed.
14 On 2 April 2002, Ann Hrovat lodged a development application to display advertising structures on the premises (“DA”).
15 On 3 July 2002, the DA was refused under delegated authority, for the following reasons:
1. The proposed signs are not compatible with, or complimentary (sic) to the building to which they are displayed or to the surrounding locality contrary to the requirements under clause 41 of the Marrickville Local Environmental Plan 2001.
8. Insufficient information was submitted with the application to make a proper assessment of the application in accordance with the heads of consideration under Section 79C of the Environmental Planning and Assessment Act [1979].
16 On 9 July 2002, a letter from the council advised that enforcement action would be commenced unless the unauthorized signs are removed.
17 The application was notified to nearby owners and occupants and the council received one (1) submission:
- The neon sign shines directly into my bedroom…The lights are turned off at approximately 9.00pm then switched back on again at 3.00am, then switched of at 6.00am…the neon lights are disruptive to sleep.
7. The hearing
18 The appeal was filed on 29 June 2003.
19 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr J R Norman, town planner, Marrickville Council.
20 On behalf of the applicant evidence was given by:
· Mr K Burrell, consultant town planner.
8. The issues
21 On 1 July 2003 the council filed a statement of issues.
1. The plans submitted with the development application are inadequate in that they do not provide dimensions of either the signage or the building on which they are erected and therefore preclude the proper assessment of the development application.
2. The signage does not comply with the Council's Code for the Control of the Erection of Signs and Advertising Structures.
3. The signs are not compatible with the building on which they are displayed and are contrary to the requirements of clause 41(a) of Marrickville Local Environmental Plan 2001 ("the LEP").
4. The signage dominates and detracts from the architectural features of the building.
5. The illumination of a number of the signs impacts on the amenity of nearby residents and is contrary to the requirements of clause 41(b) of the LEP.
6. The size, location, number and visual impact of the signs will be detrimental to the amenity of the locality.
7. The total signage is excessive in area and is not in scale with the building upon which they are displayed.
8. The signage represents a proliferation of similar advertising material.
22 The following emerged as the salient issue:
· Whether or not the signs are compatible with the building on which they are displayed and whether or not they meet the requirements of cl 41(a) of MLEP2001 and the Code.
9. The evidence and findings
Whether or not the signs are compatible with the building on which they are displayed and whether or not they meet the requirements of cl 41(a) of MLEP2001 and the Code
23 The parties have agreed that the larger illuminated signs be relocated to be more sympathetic to the character of the architecture of the building.
24 They also agreed that the flush wall sign fronting Wardell Road be removed.
25 To resolve any issues concerning the illumination the parties have agreed that the illuminated signs are to have a timer installed, which would prevent illumination between the hours of 10.00pm and 7.00am.
26 The parties have agreed that the non-illuminated sign to Wardell Road is removed within 28 days from the date of this judgement, and the other works within 60 days.
27 For the above reasons, the appeal is upheld.
10. Conditions
28 The conditions are those in Exhibit 6 as amended during the on-site hearing.
11. Orders by consent
29 My orders by consent are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 200200200 lodged with the respondent council on 28 March 2002 to display advertising signs on premises at Lots 1, 2 and 3, SP 3842 being No 466 Marrickville Road, Dulwich Hill, is approved subject to Conditions 1 to 7 in Annexure A.
3. The exhibits with the exception of Exhibits A, 5 and 6 are returned.
S J Watts
Commissioner of the Court
sw
- Ann Hrovat
- Marrickville Council
1. The advertising signs being displayed substantially in accordance with the plans prepared by S J Dixon and Associates Pty Limited, Reference No 40446, undated, Sheets No 1, 1A, 2, 2A and 3 and as amended by hatching and notation in Exhibit A. Reason: To confirm the details of the application as submitted by the applicant.
2. A separate development application being submitted to, and approved by, Council prior to the erection of any further advertisements or advertising structures other than the signs approved in this consent. The shop windows are not to be painted with advertisements and no flashing lights are to be installed on the premises. Reason: To ensure the compliance of any further advertisements or advertising structures with the requirements of Council's Advertising Code.
3. The advertising structures and associated advertisements being properly and safely maintained at all times. Reason: To ensure that the advertising structures and advertisements do not have any detrimental effect upon the amenity of the area or endanger the safety of the public.
4. The advertisements shall:-
(i) not flash, move, be animated, or be decorated with rotating or flashing lights at any time without the consent of Council;
(ii) not have any apparatus attached to it which will provide sound of any description whether associated with the sign or other object or activity;
(iii) be neatly affixed to the building and any damage to the building caused to the exterior of the building by the erection of the advertising structure shall be promptly repaired with materials to match those of the existing building.
- Reason : To confirm the terms of Council's approval.
5. No flashing, moving or intermittent lighting, visible from the public way being installed on the premises or any external sign associated with the development. Reason: To enhance the visual presentation of the locality.
6. The advertising signs are not to be illuminated between the hours of 10.00pm and 7.00am. Reason: To ensure that the signs do not interfere with the amenity of the surrounding neighbourhood.
7. Certification by a Structural Engineer as to the adequacy of the method of affixing the signs is to be submitted to Council within one (1) month of the date of this consent. Reason: To ensure public safety.
S J Watts
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