Apparition Media Pty Ltd v The Council of the City of Sydney

[2018] NSWLEC 1590

Land and Environment Court

New South Wales

Medium Neutral Citation:	Apparition Media Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1590
Hearing dates:	12 November 2018
Date of orders:	12 November 2018
Decision date:	12 November 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely on the amended plans dated 24 September 2018, and referred to in condition 1 of Annexure A. (2) The appeal is upheld. (3) Development Application No. RD/2017/954/A for a painted advertising mural on the northern external wall of an existing single storey building at 4-6 York Street, Sydney, legally known as Lots 13, 14, 15 and Part 16, Section 1 in DP 939718, is approved subject to the conditions set out at Annexure A. The Court notes that for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties agree that the amendments to the proposal are minor.
Catchwords:	APPEAL – development application – wall advertisement – breach of requirements of SEPP 64 – whether development standard or prohibition – request to grant consent notwithstanding breach of development standard – whether other requirements of SEPP 64 met
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 1 – Development Standards State Environmental Planning Policy No 64 - Advertising and Signage Sydney Local Environmental Plan 2012
Cases Cited:	Adbooth Pty Ltd v Botany Bay City Council [2006] NSWLEC 710 Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74 Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153 Residents Against Improper Development Inc and Another v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Municipal Council v Carr (1985) 62 LGRA 263
Texts Cited:	Sydney Development Control Plan 2012
Category:	Principal judgment
Parties:	Apparition Media Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitors: M Winram, Maddocks Lawyers (Applicant) A Singh (Respondent)
File Number(s):	2018/228805
Publication restriction:	No

EX TEMPORE Judgment

1. COMMISSIONER: At the corner of York and Wynyard Streets in Sydney is an uncharacteristic single storey building, known as 4-6 York Street, currently operating as a convenience and take away store. The store frontage and entrance presents on a splay that directly faces the intersection of the two streets. A blank wall presents to Wynyard Street, and is highly visible from the pedestrian footpath along York Street. Apparition Media Pty Ltd (“Apparition”) seeks development consent for a painted advertising mural on this northern external wall. On 17 July 2017 it lodged a development application with the Council of the City of Sydney (“the Council”), which was refused on 6 September 2017 and again on 21 February 2018 following a review application. Apparition appeals against the refusal of the development application, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).

2. The application proposes a painted wall sign for third party advertising on the northern façade of the existing building. Apparition seeks leave to amend its development application so as to reduce the size of the wall advertisement to a size of 3.3m x 7.2m (24.1m2) and to rely on amended plans that depict the true dimensions of the northern wall. Subject to leave being granted to so amend the application and the plans, the Council now agrees to development consent being granted subject to appropriate conditions. Such conditions have been agreed to by the parties, and include a time limit to the consent of 18 months, compliance with a Plan of Management, and design requirements concerning the content of the sign. As a result of this agreement, the Council agrees that each of the contentions originally raised in the proceedings have now been addressed.

3. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent. In carrying out that assessment in the context of the present application, I am required to consider the provisions of State Environmental Planning Policy No 64 - Advertising and Signage (“SEPP 64”), which applies to the development application. One provision, cl 22, concerns the requirements for a wall advertisement. Specifically, the application does not comply with cl 22(2)(b)(iii), which requires that the advertisement not exceed 20% of the above ground elevation. If this requirement is a development standard, then, pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 (“SLEP 2012”), consent can be granted notwithstanding the breach of the standard. Therefore, the following questions arise on the hearing of the appeal:

• Whether cl 22(2)(b) of SEPP 64 is a prohibition or a development standard,

• If it is a development standard, whether the state of satisfaction required by cl 4.6(4) of the SLEP 2012 has been reached to allow consent to be granted notwithstanding the breach of the development standard,

• If so, whether all other preconditions to the grant of consent arising under SEPP 64 have been satisfied, and

• If so, whether it is appropriate to grant development consent in considering other matters of merit arising pursuant to s 4.15 of the EPA Act.

4. For the reasons that follow, I have determined that it is appropriate for development consent to be granted. The advertisement is permissible with consent pursuant to SLEP 2012, and I am satisfied that cl 22(2)(b) is a development standard. The written request, required by cl 4.6(3) of the SLEP 2012, adequately establishes that compliance with the development standard is unreasonable or unnecessary, and that there are sufficient environmental planning grounds to justify the departure from the standard. Further, I am satisfied that the development application is in the public interest because it is consistent with the objectives of SEPP 64 and the zone. I also consider that, although new wall advertisements are generally discouraged in the Sydney Development Control Plan 2012 (“SDCP 2012”), the advertisement will present as street art and enhance the terminating vista of York Street and Carrington Street, consistent with the special character area in which the site is located.

Site and locality

5. A site inspection was not undertaken at the commencement of the hearing. The site is legally known as lots 13, 14, 15 and Part 16, Section 1 in DP 939718. It comprises a one storey commercial building with car parking located to the rear at the east of the existing building and accessed via Wynyard Street.

6. Surrounding land uses comprise a mix of retail, commercial and residential uses. Immediately to the north of the site is Wynyard Park, which is a heritage item under the SLEP 2012. A wide pedestrian footpath alongside Wynyard Park provides access to bus services on York Street, with the footpath width and adjacent park causing the northern wall of the site to be visually prominent from the north.

7. The site is located within the Wynyard Park and Lang Park Special Character Area which has some heritage significance, although the site is not in a heritage conservation area.

Planning Framework

8. The site is zoned B8 - Metropolitan Centre pursuant to the SLEP 2012. The objectives of the zone are as follows:

• To recognise and provide for the pre-eminent role of business, office, retail, entertainment and tourist premises in Australia’s participation in the global economy.

• To provide opportunities for an intensity of land uses commensurate with Sydney’s global status.

• To permit a diversity of compatible land uses characteristic of Sydney’s global status and that serve the workforce, visitors and wider community.

• To encourage the use of alternatives to private motor vehicles, such as public transport, walking or cycling.

• To promote uses with active street frontages on main streets and on streets in which buildings are used primarily (at street level) for the purposes of retail premises.

9. As outlined earlier, SEPP 64 applies to the development application. Clause 3(1) of SEPP 64 sets out the objectives of the policy, and provides as follows:

3 (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.

10. SEPP 64, in cl 4(1), differentiates between signage and advertisements as follows:

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.

and

advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement.

11. Clause 8 of SEPP 64, which relates to signage only, states that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied that the signage is consistent with the objectives of SEPP 64, and satisfies the assessment criteria specified in Schedule 1. Specifically, cl 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.

12. Clause 13 of SEPP 64, which applies to advertisements, repeats and expands the requirements in cl 8. Clause 13 states that a consent authority must not grant consent to an application to display an advertisement to which SEPP 64 applies, unless the advertisement or advertising structure is consistent with the objectives of SEPP 64, 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 satisfies any other relevant requirements of SEPP 64. Specifically, cl 13(1) provides:

13 Matters for consideration

(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.

13. Clause 17 also applies to the development, and provides as follows (insofar as it is relevant to the application):

17 Advertisements with display area greater than 20 square metres or higher than 8 metres above ground

(1) This clause applies to an advertisement:

(a) that has a display area greater than 20 square metres, or

(b) that is higher than 8 metres above the ground.

(2) The display of an advertisement to which this clause applies is advertised development for the purposes of the Act.

(3) The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless:

(a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(b) the application has been advertised in accordance with section 79A of the Act, and

…

14. The application has been advertised in accordance with the former s 79A of the EPA Act.

15. Clause 22 in Part 3 of SEPP 64 deals with “wall advertisements”, which are defined in clause 4 as follows:

“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.

16. Clause 22 provides:

22 Wall advertisements

(1) Only one wall advertisement may be displayed per building elevation.

(2) The consent authority may grant consent to a wall advertisement only if:

(a) the consent authority is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed, and

(b) for a building having:

(i) an above ground elevation of 200 square metres or more—the advertisement does not exceed 10% of the above ground elevation, and

(ii) an above ground elevation of more than 100 square metres but less than 200 square metres—the advertisement does not exceed 20 square metres, and

(iii) an above ground elevation of 100 square metres or less—the advertisement does not exceed 20% of the above ground elevation, and

(c) the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards require a greater protrusion, and

(d) the advertisement does not protrude above the parapet or eaves, and

(e) the advertisement does not extend over a window or other opening, and

(f) the advertisement does not obscure significant architectural elements of the building, and

(g) a building identification sign or business identification sign is not displayed on the building elevation.

(2A) In the case of the display of a wall advertisement on transport corridor land, subclause (2) does not apply and the consent authority may grant consent only if satisfied that the advertisement is consistent with the Guidelines.

(3) In this clause, building elevation means an elevation of a building as commonly shown on building plans.

17. The parties agree that the proposed development complies with cl 22, other than subcl (2)(b)(iii), as the advertisement exceeds 20% of the above ground elevation of the building on the site. The advertisement seeks coverage of 36%.

18. If subcl (2)(b)(iii) is a development standard, then there is power pursuant to cl 4.6 of the SLEP 2012 to grant development consent notwithstanding the breach of the standard. Clause 4.6 provides:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

…

19. A development standard is defined in s 1.3 of EPA Act as follows:

development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b) the proportion or percentage of the area of a site which a building or work may occupy,

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building or work,

(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h) the volume, nature and type of traffic generated by the development,

(i) road patterns,

(j) drainage,

(k) the carrying out of earthworks,

(l) the effects of development on patterns of wind, sunlight, daylight or shadows,

(m) the provision of services, facilities and amenities demanded by development,

(n) the emission of pollution and means for its prevention or control or mitigation, and

(o) such other matters as may be prescribed.

20. Clause 6.21 of the SLEP 2012 applies to the development, and precludes development consent from being granted to development unless “in the opinion of the consent authority, the proposed development exhibits design excellence.”

21. The site is located in the Wynyard Park/Lang Park Special Character area, which has the following locality statement (found in cl 2.1.9 of Section 2 of the SDCP 2012):

“Wynyard Park is an important space within the public domain and fabric of Central Sydney. The Park is of a Victorian layout and was used as a military parade ground from 1792 to 1848. It was known as Wynyard Square from 1848–1887, and was officially dedicated as a park and an open space for public recreation in 1887.

It is distinguished as a major public transport node. The street edges provide a strong sense of urban enclosure, created by the uniformity of the buildings lining the streets, resulting in the effect of “an urban room”. The majority of these buildings are of a consistent height and street alignment and exhibit similar architectural themes.

…”

22. The principles for development in this locality are as follows:

“(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Recognise Wynyard Park and Lang Park as important elements of the public domain in the northern part of Central Sydney as well as the role of Lang Park as a northern “gateway” to Central Sydney.

(c) Protect and extend mid-winter lunchtime sun access to Wynyard Park and Lang Park.

(d) Retain the sense of urban enclosure provided to Wynyard Park by requiring new buildings to be built to the street alignment, and the street frontage heights and setbacks above them to be compatible with the prevailing form and scale of existing buildings surrounding Wynyard Park.

(e) Enhance the terminating vistas along Carrington Street, and York Street to the south at its corner with Wynyard Street.

(f) Ensure that new development protects and enhances east-west vistas along Regimental Square, Margaret Street and Erskine Street.

(g) Ensure that any development associated with the important public transport interchange provided at Wynyard is consistent with enhancement of the public domain of Wynyard Park.

(h) Conserve and enhance the heritage significance of the area by respecting the significance of the nineteenth and twentieth century public, religious and commercial buildings and their settings.

(i) Ensure that new development lining the edges of Lang Park provides an appropriate backdrop in terms of scale and materials and greater compatibility with the Rocks area to the north and the St. Phillip’s Church precinct to the west.”

23. The SDCP 2012 also provides a number of controls with respect to signage. Specifically, at cl 3.16.7.1 it provides:

“3.16.7.1 General requirements

(1) Generally, new advertising signs and third party advertisements are not permitted. The exceptional circumstances where advertising signs and third party advertisements are permitted shall be assessed against the following criteria:

(a) Whether the sign is advertising a civic or community event in the City of Sydney area;

(b) Whether the sign can be considered as public art in accordance with the City’s policies in relation to public art;

(c) Whether the signs are consistent with the provisions for signage in this DCP;

(d) Whether part of the sign occupied by corporate markings, logos, branding or similar is not more than 5% of the total sign area;

(e) Whether the number of existing signs on the site and in the vicinity do not cumulatively create unacceptable visual clutter;

(f) Whether the sign is associated with the surrender of a consent for an existing sign on a heritage item or on a contributory building in a heritage conservation area.”

24. The proposed conditions of consent seek to achieve compliance with (1)(d), and the Plan of Management contains details with respect to the painting of the mural that seek to achieve (1)(b).

Is clause 22(2)(b) a development standard?

25. The parties agree that the ability to grant development consent is only enlivened if cl 22(2)(b) of SEPP 64 is a development standard and not a prohibition.

Relevant Principles

26. The question of whether a provision is a development standard or a prohibition has been the subject of much judicial discourse. Central to that discourse is the two step approach of Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 (“Poynting”). The first step requires determination of whether the proposed development is prohibited under any circumstances by the relevant provision, where that provision is construed in the context of the instrument as a whole. The second step requires determination of whether the provision specifies a requirement or fixes a standard in relation to an aspect of the proposed development. In describing the first step, Giles JA considered that anything less than complete prohibition means that the development can take place. At [98]:

“Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard.”

27. Giles JA also emphasised that the provision must be “seen as part of the environmental planning instrument as a whole” (at [94]).

28. In Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74, Jagot J articulated a summary of relevant legal principles drawn mostly from the decision in Poynting as to what constitutes a development standard. These principles have been adopted on a number of occasions, including by Tobias JA in the Court of Appeal in Residents Against Improper Development Inc and Another v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323. Those principles are set out by Jagot J at [26]:

“(1) The provision in question must be “seen as part of the environmental planning instrument as a whole” (Poynting at 342 [94]). The “wider context” of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182 – 183 [2] per Mason P).

(2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of “development standard”, that fact alone does not mean that the provision is thereby a development standard. The provision must be “in relation to the carrying out of development” and must fix requirements or standards in respect of an aspect of the development (Poynting at 333 –334 [58]).

(3) Although we must distinguish between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between “regulation” and “prohibition” cannot replace the definition in the EPA Act. As this conceptual division “will bring finely divided decisions”, “care must be taken lest form govern rather than substance” (Poynting at 342 [93]).

(4) A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]).

(5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then “in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development”. (Poynting at 343 [98]) .

(6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269-270 per McHugh JA and Poynting at 343 [97]).

(7) An essential condition of the definition of “development standard” is that the “requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development” (Carr at 269 -270 per McHugh JA).

(8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of “development standard” shows that “a broad view of what is an aspect of a development should be taken” (Poynting at 343 [99]).”

The Parties Submissions

29. Apparition firstly relies on the decision of the Court in Adbooth Pty Ltd v Botany Bay City Council [2006] NSWLEC 710, in which Commissioner Hoffman considered that cl 22(2)(b) applied to the development, with which the proposed wall advertisement did not comply. Notwithstanding this, the Commissioner found that the objection to the development standard (lodged under the State Environmental Planning Policy No 1 – Development Standards) was well founded and that compliance with the standard was unreasonable and unnecessary. Apparition submits that this decision is authority for cl 22(2)(b) having been applied as a development standard, and for development consent having been granted for development even though it contravened that standard.

30. Secondly, Apparition submits that the development for which consent is sought, being a painted third party wall advertisement, is permissible in Zone B8 – Metropolitan Centre in the SLEP 2012. As such, consistent with the first step in the approach of Giles JA in Poynting, Apparition submits that the development is not prohibited.

31. Thirdly, Apparition submits that the fact that the development may only be carried out in the circumstances identified in cl 22 does not mean that the development is prohibited under any circumstances by reason of clause 22.

32. Fourthly, in considering the language of cl 22(2) and the context of the clause within SEPP 64, Apparition submits that cl 22(2)(b) does not seek to forbid the development of wall advertisements, but rather imposes controls that, in effect, provide criteria for the proportion of the wall or elevation that should be used. In support of this submission, Apparition relies on the reasoning of Robson J in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153, in which His Honour considered that such controls “do not seek to forbid the development... but rather places standards and requirements” for the development (at [62]).

33. Fifthly, Apparition submits that the wording of cl 22(2) is distinct from that contained in cl 10 of SEPP 64. Clause 10 clearly imposes a prohibition by stating:

(1) Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that, under an environmental planning instrument, is within any of the following zones or descriptions:

…

34. Apparition therefore submits that cl 10 of SEPP 64 identifies advertisements that are prohibited, whereas cl 22(2) does not.

35. Moving to the second step of the approach taken by Giles JA in Poynting, Apparition submits that cl 22(2)(b) clearly specifies a requirement or fixes a standard in relation to an aspect of the proposed development, and therefore falls within the definition of a development standard. Specifically, Apparition submits that each of the elements that form part of the definition of “development standards” are met, as the provision is in relation to the carrying out of development, specifies requirements concerning the percentage of the coverage of the above ground elevation, and relates to a number of the requirements or standards listed in definition contained in s 1.4 of the EPA Act.

36. The Council supports the submissions made on behalf of Apparition, and also submits that in considering cl 22(2)(b) within the context of SEPP 64 as a whole, it is not a prohibition but instead provides criteria to assist in determining the appropriate scale of the development.

37. Specifically, the Council firstly submits that the present proceedings can be distinguished from what was before the Court of Appeal in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 and Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20. In Woollahra Municipal Council v Carr, the development was for professional consulting rooms for dentists, which were defined as rooms having a limit of 3 dentists. Accordingly, part of the description of the development of professional consulting rooms for dentists included the fact that they be restricted to no more than 3 dentists. As such, the development was permissible only if it met that definition. In Agostino v Penrith City Council, the Court of Appeal was dealing with an appeal from Pain J which related to a development for a fruit shop with a maximum floor area of 150m2. Pain J, with the Court of Appeal agreeing, considered that the area of the shop was part of the description of the development and so a breach of the floor area was a prohibition. Tobias JA agreed with this assessment and noted that the relevant development type, namely a fruit and vegetable store, was a prohibited use and the control was inserted as an exception to the general prohibition, so that it was only permissible if it did not exceed the maximum floor area.

38. The Council submits these cases are distinct from the present proceedings, where wall advertisements are permissible with consent and the definition of “wall advertisement” does not rely on the dimensional requirements. The Council points out that a wall advertisement remains a wall advertisement regardless of its size.

39. Secondly, the Council submits that it is not the case that wall advertisements that do not meet the dimensional requirements are prohibited in any circumstances. Clause 22(2A) allows for the display of a wall advertisement on transport corridor land that does not comply with the size limitations of Clause 22(2).

40. Thirdly, the Council submits that a consideration of the wider view of SEPP 64 and the context in which cl 22 operates provides for the dimensional characteristics in Clause 22(2)(b) to be development standards rather than prohibitions. The Council submits that SEPP 64, when looked at in its wider context, includes aims and objectives that include an aim to ensure that signage (including advertising) is compatible with the desired amenity and visual character of an area and to provide effective communication in suitable locations. The consent authority is also required, by virtue of cl 13, to consider the assessment criteria in Schedule 1. This criteria includes streetscape, setting or landscape and requires the consent authority to consider the scale, proportion and form of the proposal. A similar requirement appears in Schedule 1 Cl 5 in considering the compatibility of the proposal with the scale, proportion and other characteristics of the building.

41. Therefore, the Council submits that in considering the context, SEPP 64 seeks to control development rather than prohibit it. The assessment criteria in Schedule 1, together with the specific requirements in Division 3, appears to help the consent authority to address matters of significance that would help to ensure that the signage complies with the aims and objectives of cl 3 of SEPP 64.

42. Finally, the Council submits that in seeking to control development, the dimensional requirements of cl 22(2)(b) clearly fall within the definition of a development standard and are therefore amenable to a request pursuant to cl 4.6 for consent to be granted notwithstanding the breach of the development standard.

Clause 22(2)(b) is a development standard

43. I accept the submissions of the parties that cl 22(2) is not a prohibition on wall advertisements that do not meet the dimensional requirements of subcl (2)(b), and that those requirements are therefore a development standard.

44. From the outset, it is clear that the requirement to comply with the dimensional requirements arises from two sources. The first is cl 22(2) itself, which states that “The consent authority may grant consent to a wall advertisement only if…”. The second is cl 13(1)(c), which states that a consent authority must not consent to an application to display an advertisement to which SEPP 64 applies unless the advertisement “satisfies any other relevant requirements of this Policy.” Clause 22(2)(b) is one such relevant requirement.

45. As such, cl 13(1) operates as a pre-condition to the grant of development consent, such that a consent authority “must not consent” unless the advertisement satisfies those requirements. However, the mere fact that one of those requirements fixes an aspect of the development (such as cl 22(2)(b)) does not mean that failure to comply creates a prohibition on the development. For example, in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde, the Court considered whether cl 26 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“Seniors Housing SEPP”) is a development standard. Relevantly, cl 26(1) of the Seniors Housing SEPP provides that a consent authority “must not consent” to a development application unless the consent authority is satisfied that the residents of the proposed development will have access to various services and facilities as specified in the provision. Clause 26(2) of the Seniors Housing SEPP prescribes how access is to be satisfied by reference to a number of locational criteria. In determining that clause 26(2) of the Seniors Housing SEPP is not a prohibition, Robson J expressed:

“It is important to note at this stage that the requirements specified and the standards fixed by cl 26 of [Seniors Housing SEPP] described above are not prohibitions. A prohibition seeks to forbid something. As outlined during the first step, these provisions (when read in context) do not seek to forbid the development of seniors housing, but rather places standards and requirements that, in effect, provide criteria for the provision of services and facilities that would be available to the occupants. The adequacy or sufficiency of this availability is a matter for the consent authority and not a matter of prohibition per se.”

46. Cl 13(1) of SEPP 64 takes the same form as cl 26(1) of the Seniors Housing SEPP, and as such the mere fact that it takes the form of wording that a consent authority “must not consent” does not mean that failure to comply with a requirement amounts to a prohibition.

47. Against that background, there are four reasons why I consider that cl 22(2)(b) does not operate as a prohibition.

48. Firstly, advertisements are permissible with development consent in the zone. As submitted by the Council, this is distinguishable from the provision considered by the Court of Appeal in Agostino v Penrith City Council, which provision characterised the permissible development by reference to a minimum area where that development was otherwise a prohibited use in the zone.

49. Secondly, the definition of a wall advertisement is not dependant on its size or its proportion to the elevation on which it is placed. I accept the submission of the Council in that regard. This is distinguishable from the decision of the Court of Appeal in Woollahra Municipal Council v Carr, in which the number of consulting rooms at a dentist was part of the definition.

50. Thirdly, the language of cls 13(1) and 22(2) can be distinguished from the language of cl 10, which clearly seeks to prohibit advertisements in certain areas. I accept the submission of Apparition in that regard.

51. Fourthly, I accept the submissions of the Council that the context of SEPP 64 as a whole, the SEPP provides assessment criteria for consent authorities to consider development for signage and advertisements. I accept the submission of the Council that each part of the SEPP narrows the field of assessment from signage generally in Part 2, to more specific matters for consideration in Part 3 when assessing signage that is advertising. Division 3 of Part 3 then provides the particular requirements for particular advertisements. In light of this, I accept that cll 13(1) and 22(2) of SEPP 64 do not seek to forbid the development of wall advertisements that do not comply with the requirements, but instead provide criteria for assessment of those wall advertisements.

52. Finally, having determined that cl 22(2) does not operate to prohibit development that does not comply with the dimensional requirements in cl 22(2)(b), I accept that those dimensional requirements are development standards. I accept the submissions of the parties that cl 22(2)(b) clearly specifies a requirement or fixes a standard in relation to an aspect of the proposed development, namely the percentage of the above ground elevation that can be occupied by the advertisement. I accept that each of the elements that form part of the definition are met, as the provision is in relation to the carrying out of development, specifies requirements concerning the percentage of the coverage of the above ground elevation, and relates to a number of the requirements or standards listed in the definition of “development standards” contained in s 1.4 of the EPA Act.

The request to vary the development standard

53. Accompanying the amended plans the subject of the proposed development is an amended written request that is lodged pursuant to cl 4.6 of the SLEP 2012 and seeks to justify the contravention of cl 22(2)(b)(iii). The request is thorough and specific to the proposed development. It advances a number of reasons as to why compliance with the development standard on the site is unreasonable and unnecessary, and provides a number of environmental planning grounds relied upon to justify the contravention of the height development standard. The request also outlines how the proposed development is consistent with the objectives of SEPP 64 and of the zone.

The requirements to reach the state of satisfaction required by cl 4.6(4)

54. Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

• The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),

• The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),

• The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and

• The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)),

The state of satisfaction required by cl 4.6(4)(a) has been reached

55. I accept that each of these elements has been satisfied.

56. Firstly, the request establishes that compliance with the dimensional requirement of cl 22(2)(b)(iii) is unreasonable and unnecessary in circumstances where the larger advertising area facilitates the achievement of a substantially positive urban design impact “due to the artistic element of the hand painted nature of the proposed advertising mural as opposed to a standard or regular billboard type advertisement” (Ex B, Tab 3, cl 4.6 request p 5). The request establishes that, consistent with test 3 in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, compliance is unreasonable as it would defeat or thwart the underlying object or purpose of the standard expressed in the objectives of SEPP 64, as it would result in a significantly inferior urban design outcome with a sign of approximately 13.24m2, effectively resulting in less mural/street art space, and would have less of a positive visual impact on the building façade. As such, the request establishes that a strictly compliant scheme would not achieve the objectives of providing high quality signage and would not have adequate public benefit. In so establishing, I am satisfied that the request adequately demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case.

57. Secondly, the request adequately establishes sufficient environmental planning grounds to justify the contravention of the development standard. It does this by expressing that the contravention of the standard allows the advertisement to activate the streetscape, reinforce the urban room effect of the precinct as identified in the locality statement, enhance the terminating vista along York and Carrington Streets, and improve the visual outcome for the façade. It clearly establishes that, if there was no contravention, a compliant sign will be disproportionate in size to the existing elevation, resulting in a negative visual impact on the streetscape and adjoining public domain, therefore failing to achieve the activation of the streetscape, the reinforcement of the urban room effect and the enhancement of the terminating vista. I accept, therefore, that the request establishes sufficient environmental planning grounds to justify the departure from the requirement for there to be coverage of only 20% of the above ground elevation. The proposal, which seeks a coverage of 36%, is sufficiently justified by these environmental planning grounds.

58. Thirdly, I accept that the proposed wall advertisement is consistent with the objectives of the B8 Metropolitan Centre zone. The proposal activates the existing street frontage of the retail premises on the site, and contributes to the diversity of compatible land uses characteristic of the area and of Sydney's “global status”.

59. Fourthly, I accept that, where there are no specific objectives of cl 22(2), the appropriate objectives to consider are the stated objectives of SEPP 64. I accept that the proposal is consistent with those objectives, for all of the reasons outlined in the request, as follows (Ex B, Tab 3, cl 4.6 request p 13):

“• The proposal is consistent with the desired amenity and visual character of the area as it contributes to the ‘urban room’ identified in the Wynyard Park/Lang Park Special Character Area (section 2.1.9 of the Sydney Development Control Plan 2012 (DCP))

• The third party advertising will include an element of street art, creating a vibrant street frontage and maximising the efficient use of the blank facade

• The proposal enhances the terminating vistas of York Street and Carrington Street

• The subject site is an appropriate location for third party advertising due to high foot and vehicle traffic

• The exceedance of development standard will allow for a larger, more effective advertisement

• Future advertisements will be of high quality design and finish”

60. I accept those reasons, and on that basis I consider that the proposed wall advertisement is compatible with the desired amenity and visual character of the area, provides effective communication in a suitable location, and is of high quality design and finish. The proposal also provides for a time-limited consent, consistent with objective (1)(c) of SEPP 64.

61. For these reasons, the state of satisfaction required by cl 4.6(4)(a) has been reached and there is therefore power to grant development consent to the proposed development.

Remaining requirements of SEPP 64 and the merits of the application

62. In carrying out the assessment in accordance with s 4.15 of the EPA Act, I am required to consider the remaining provisions of SEPP 64 as well as any matters of merit that require consideration by virtue of s 4.15(1).

Expert evidence

63. Ms Peggy Wong, and Mr Michael Woodland, town planners, gave oral expert evidence at the hearing. They consider that the proposed wall advertisement activates the site and meets the character test for the “urban room” effect reflected in the special character area statement.

64. Ms Wong's evidence is that each of the contentions initially raised in the proceedings have been resolved by the reduction in size of the advertisement, the limitation of branding to 5% of the advertisement, and by the Plan of Management. In her assessment against the contentions, which was tendered at the hearing, she considers that (Ex 1 pp 1-3):

“The amended proposal is considered to satisfy the considerations under Clause 17 of SEPP 64 as follows:

a. Bespoke artwork/murals that comprise corporate markings, logos, branding or the like of no more than 5% of the total area of the sign will not have any adverse impacts on the character of the Wynyard Signage Precinct of the Wynyard Park/Lang Park Special Character Area. The amended proposal satisfies the provisions for third party advertising under Section 3.16.7.1 of the Sydney Development Control Plan 2012.

b. The use of the signage area for third party advertising will be limited to a maximum time period of 18 months and is subject to compliance with a Plan of Management and Design Brief which will guide appropriate content and graphics.

c. The amended proposal, comprising of predominantly art work/murals, will not visually compete with existing third party printed and dynamic content advertising associated with the transport interchange at Wynyard Park.

The amended proposal will not comprise excessive corporate branding or images that are readily associated with third party advertising products.

In accordance with Clause 8 of SEPP 64, the proposal, as amended, is consistent with the objectives of the SEPP and satisfies the assessment criteria in Schedule 1 as the signage area will not consist of excessive corporate branding and the reduction in size will not have any adverse impacts on the streetscape and pedestrian amenity. The proposal is also time limited and satisfies the objectives of SEPP 64, subject to conditions and can be determined by the consent authority.”

SEPP 64 requirements

65. In carrying out the functions of the consent authority, I must be satisfied in accordance with cll 8, 13 and 17 that the proposed development is consistent with the objectives of SEPP 64 as set out in cl 3(1)(a). Consistent with my determination on the matters required by cl 4.6(4)(a), I am so satisfied.

66. I am also required by cll 8, 13 and 17 of SEPP 64 to assess the proposal in accordance with the assessment criteria in Schedule 1 and to be satisfied that the proposal is acceptable in terms of its impacts.

67. The criteria in Schedule 1 are as follows:

1 Character of the area

• Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

• Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

2 Special areas

• Does the proposal detract 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?

3 Views and vistas

• Does the proposal obscure or compromise important views?

• Does the proposal dominate the skyline and reduce the quality of vistas?

• Does the proposal respect the viewing rights of other advertisers?

4 Streetscape, setting or landscape

• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

• Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

• Does the proposal reduce clutter by rationalising and simplifying existing advertising?

• Does the proposal screen unsightliness?

• Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

• Does the proposal require ongoing vegetation management?

5 Site and building

• Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

• Does the proposal respect important features of the site or building, or both?

• Does the proposal show innovation and imagination in its relationship to the site or building, or both?

6 Associated devices and logos with advertisements and advertising structures

• Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

7 Illumination

• Would illumination result in unacceptable glare?

• Would illumination affect safety for pedestrians, vehicles or aircraft?

• Would illumination detract from the amenity of any residence or other form of accommodation?

• Can the intensity of the illumination be adjusted, if necessary?

• Is the illumination subject to a curfew?

8 Safety

• Would the proposal reduce the safety for any public road?

• Would the proposal reduce the safety for pedestrians or bicyclists?

• Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

68. An outline of how the wall advertisement meets the criteria in Schedule 1 is contained in the Statement of Environmental Effects dated 13 July 2017, and the review application lodged with the Council and dated December 2017.

69. On the basis of those documents, I accept that the wall advertisement has an acceptable impact.

70. Firstly, I accept that the proposal is compatible with the existing character of the area as it enhances the terminating vista along Carrington and York Streets to the south with Wynyard Street, and it is well placed to fit into the urban environment without leading to adverse visual impacts on the desired future character of the area. I accept that it will activate and provide visual interest to an existing blank wall.

71. Secondly, I accept that the proposal does not detract from the amenity or visual quality of the area. It will enhance the existing streetscape by providing visual interest through innovative and creative expression, and will beautify an existing unrelieved and visually prominent blank wall which is located at the termination of important southerly views along Carrington and York Street.

72. Further, the limit on branding to 5% and the fact that it is hand-painted ensures that the proposal will be read as street art and create visual interest, rather than having the appearance of a billboard.

73. Thirdly, I accept that the proposal will not obscure views, dominate the skyline, create clutter, create protrusions or affect the safety of pedestrians. Instead, it will enhance the visual interest of Wynyard Street through the provision of a painted mural that changes from time to time, and will enliven the streetscape, which is currently dominated by a blank wall.

The application should be granted on its merits

74. For the above reasons, and based on the evidence of Ms Wong and Mr Woodland, I am satisfied that the proposed wall advertisement is appropriate for the site and will activate the streetscape, given its location and urban context. In accordance with SEPP 64, I am also satisfied that the advertisement is consistent with the objectives of SEPP 64 and will not have an adverse impact. Similarly, I accept that through the Plan of Management the wall advertisement complies with cl 6.21 of the SLEP 2012 and exhibits design excellence. Given that it meets the principles for the Wynyard Park/Lang Park Special Character area, there is no basis to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties.

The final orders

75. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans dated 24 September 2018, and referred to in condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Application No. RD/2017/954/A for a painted advertising mural on the northern external wall of an existing single storey building at 4-6 York Street, Sydney, legally known as Lots 13, 14, 15 and Part 16, Section 1 in DP 939718, is approved subject to the conditions set out at Annexure A.

76. The Court notes the parties’ agreement that, for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979, the amendments to the proposal are minor.

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Commissioner Gray

Annexure A

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Decision last updated: 14 November 2018