Bronte RSL Club Limited v Waverley Council
[2006] NSWLEC 61
•02/16/2006
Land and Environment Court
of New South Wales
CITATION: Bronte RSL Club Limited v Waverley Council [2006] NSWLEC 61 PARTIES: APPLICANT:
Bronte RSL Club Limited
RESPONDENT:
Waverley CouncilFILE NUMBER(S): 11332 of 2005 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Whether the proposed sign is appropriate in the streetscape and would not adversely impact on residential amenity LEGISLATION CITED: Waverley Local Environmental Plan 1996, (WLEP)
Development Control Plan No 8 - Advertising Signs and Structures, (DCP8)
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 16/02/2006
DATE OF JUDGMENT:
02/16/2006LEGAL REPRESENTATIVES: APPLICANT:
Mr M E McMahon, solicitor
SOLICITORS:
M E McMahon & AssociatesRESPONDENT:
Mr A McKelvey, solicitor
SOLICITORS:
Sparke Helmore
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
16 February 2006
11332 of 2005 - Bronte RSL Club Limited v Waverley Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Waverley Council (the council) to refuse a development application to erect a new Light Emitting Diode (LED) illuminated, above-awning sign at Lot 22, DP72912; Lot 19, DP 1092094; Lot 20, DP 1092094; and Lot 21, DP 192094; being No 113 Macpherson Street, Bronte.
2 I visited the land in company with the parties on the morning of the s 34B conference, which was held as an on-site hearing.
3 I have concluded that the LED display should be trialled for a period of one year, and I have approved the proposed new sign in the location of the existing above-awning sign subject to conditions.
The land
4 The land is situated on the southern side of Macpherson Street, between Arden and St Thomas Streets and is on a relatively flat section of Macpherson Street.
5 In the surrounding area there is a mixture of single-storey and two-storey residential dwellings and residential flat buildings. Some shops exist further east of the land.
Relevant planning controls
Waverley Local Environmental Plan 1996, (WLEP)
6 Under the provisions of the WLEP the land is zoned and the proposal is permissible with consent.
Development Control Plan No 8 - Advertising Signs and Structures, (DCP8)
Exempt and Complying Development, Development Control Plan No 29, (DCP29)
Advertising and Notification Development Control Plan No 27, (DCP27)
Bronte Commercial Centres Policy, (Draft Policy)
The council adopted the Draft Policy on 5 July 2005. Under cl 5.3.6 the strategy is to ensure that signage and advertising communicate effectively and contribute in a positive way to the public domain. To this end the council seeks to prohibit above-awning signs.
The proposal and its history
7 Development application No 870/2004 was lodged with the respondent council on 22 December 2004 to erect a new single-sided LED illuminated, above awning sign at the Bronte RSL in Macpherson Street.
8 The council received a complaint that a sign had been illegally erected at the abovementioned premises. After being investigated, a development application was invited, and this was received on 22 December 2004.
9 It is proposed to remove the existing sign and replace it with the new sign towards the front or western end of the awning. The new sign would be illuminated between the hours of 10am to 8pm daily, and would be supported by a L-shaped bracket to reduce the prominence of any signage support.
10 The illuminated sign would be located at the front of the club above the awning and would display the club logo with moving word messages of the upcoming events and information for members and guests of the club. The dimensions of the sign would be 2.55m long, 2.0m high and 250mm thick.
11 The club operates until 11.30pm Monday to Thursday, midnight Friday/Saturday and 10pm Sunday and caters for around two thousand members who are predominantly from the local area.
Notification
12 The application was notified to nearby owners and occupants and the council received one objection that was later withdrawn.
13 Another submission was received to the s 82A review.
The council’s decision
14 The application was refused under delegated authority of the council on 24 February 2005. Later a s 82A review lodged with the council on 23 March 2005 was refused by the council on 28 June 2005.
15 By notice dated 28 June 2005 the council refused the development application for four reasons that are reflected in the issues.
The hearing
16 The appeal was filed on 10 November 2005.
17 At the hearing the court heard evidence on behalf of the respondent council from Mr J Coudounaris, Statutory Planner, of Waverley Council.
18 On behalf of the applicant Mr A Betros, consultant town planner, gave evidence.
19 Mr Coudounaris, also prepared the statement of basic facts dated 6 December 2005
The issues
20 On 23 December 2005 the council filed a statement of issues.
- ISSUE 1 - The proposed development should not be approved, as it will have a detrimental impact upon the amenity of the surrounding area.
- Particulars
- Macpherson Street
ISSUE 2 - The proposed development should not be approved, as it does not comply with the requirements of Development Control Plan No 8 - Advertising signs and Signage.
- Particulars
- ISSUE 3 - The proposed development should not be approved, as it is not consistent with specific aims of Waverley LEP 1996.
- Particulars
ISSUE 4 - The proposed development should not be approved, as it is not in the public interest.
21 The salient issue was whether the proposed sign is appropriate in the streetscape and would not adversely impact on residential amenity.
Amended proposal
22 During the hearing the applicant amended the proposal. As amended the proposal is for the new sign in the same location as the existing above-awning sign over the centre of the front door to the club. Thus, it would be a replacement of the existing. However the new sign being 2.55m long, and 2.0m high would be slightly larger than the existing sign and would be placed closer to the front façade of the existing building so that the outside edge would be about 500mm from the outer face of the awning over the footpath. The proposed new sign would be illuminated on the west-facing side and the back or eastern side of the sign would be unilluminated and would display a logo of the club.
23 The top part of the sign facing west would be an illuminated light box 725mm high and the bottom part of the sign would be a computer controlled LED message. The applicant proposes that the top part of the new sign would be illuminated between the hours of 10.00am to 11.30pm, when the club closes. The LED message would be operating between the hours of 10.00am to 8.00pm, the hours originally sought by the applicant.
24 The council did not oppose the amended location of the proposed sign as a replacement of the existing sign, and on the basis that the amenity impact of the proposed new sign in this location would be the same or in fact less than that originally advertised did not require further advertising. The council continued to oppose the way in which the signage would be illuminated and the LED part would be managed by the club, by changing the message at regular intervals or by scrolling or some other electronic means of changing the content. The council was concerned that if approval were given a precedent would be set and other neighbourhood businesses might similarly apply for LED signs.
25 The council sought to impose a condition addressing the LED advertising:
- The LED part of the sign is not permitted to operate after 8.00pm, and shall contain a static text containing the same message for the duration of this approval .
26 The applicant sought a condition to the effect that the LED part of the sign may contain a text which can change at a frequency no shorter than a period of 100 seconds.
The evidence and findings
Whether the proposed sign is appropriate in the streetscape and would not adversely impact on residential amenity
27 The council did not raise objection to the location of the sign in the streetscape in its amended location as it was replacing the existing sign. It did not object to the size of the sign as a replacement of the existing sign. The council did not raise objection to the top part of the sign being illuminated from sunset to 11.30pm and/or closing time.
28 The only issue remaining between the parties was the way in which the content of the lower LED part of the sign would be managed by electronic means. Mr McKelvey for the council submitted that the council would not raise objection to the content of the lower part of the sign if it were to remain static for the approval period.
29 The existing double-sided neon sign is illuminated from sunset to sunrise controlled by a light sensitive switch. In that the proposed new sign is illuminated only on the western side, I consider that any adverse impact the residential amenity on the eastern side of the new sign would be less than with the existing sign. Also, given that the proposed light box on the top part sign would be illuminated on the western side only until closing time of the club, and the light box would be smaller in area than the existing sign, again, I consider any adverse impact residential amenity of that top part of the sign would be less than with the existing. The only issue is whether I should approve the LEP part of the sign on the western side to remain as a fixed display or not.
30 I am satisfied that some flexibility should be applied in the present case as the proposed new sign is replacing an existing sign and new technology, such as the LED display, should be trialled. I have concluded that the LED display should be permitted for a period of one year and if during this trial period there were strong public opposition to it, the council would be given the opportunity to review the consent.
31 For the above reasons, the appeal is upheld.
Conditions
32 The conditions are those in Exhibit 4 as amended during the hearing.
Costs
33 I understand that each party will pay its own costs.
Orders
34 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 870/2004 lodged with the respondent council on 22 December 2004 to erect a new LED illuminated, above-awning sign at the Bronte RSL at Lot 22, DP72912; Lot 19, DP 1092094; Lot 20, DP 1092094; and Lot 21, DP 192094; being No 113 Macpherson Street, Bronte, is approved subject to Conditions 1 to 11 in Annexure A.
3. The exhibits are returned, except for Exhibits 1 and 4.
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site atS J Watts
Commissioner of the Court
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