Bunnings Pty Ltd v Auburn Council
[2004] NSWCA 224
•8 July 2004
Reported Decision:
134 LGERA 386
Court of Appeal
CITATION: Bunnings Pty Ltd v Auburn Council [2004] NSWCA 224 HEARING DATE(S): 22/06/2004 JUDGMENT DATE:
8 July 2004JUDGMENT OF: Hodgson JA at 1; Bryson JA at 20; Pearlman AJA at 29 DECISION: Appeal dismissed with costs CATCHWORDS: PLANNING LAW - approval of proposed signage - whether proposed signage is "business identification sign" pursuant to SEPP 64 - meaning of "business identification sign" - whether sign "indicates" matters nominated in definition - sign containing logo and "positioning statement" does not fall within definition LEGISLATION CITED: Land and Environment Court Act 1979 s 57
State Environmental Planning Policy No 64 - Advertising and Signage cll 3, 4, 8, 9, 19, Sch 1CASES CITED: Hope v Bathurst City Council (1980) 144 CLR 1
Papadopoulos v Goodwin [1982] 1 NSWLR 413PARTIES :
Bunnings Pty Ltd (Appellant)
Auburn Council (Responent)FILE NUMBER(S): CA 40913/03 COUNSEL: Mr L G Foster SC, Mr P Clay (Appellant)
Submitting appearance (Respondent)SOLICITORS: Lander & Rogers (Appellant)
Pike Pike & Fenwick (Respondent)
LOWER COURTJURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): 10999/02 LOWER COURT
JUDICIAL OFFICER :Pain J
CA 40913/03
Thursday 8 JULY 2004HODGSON JA
BRYSON JA
PEARLMAN AJA
The Appellant uses its premises at Auburn as a retail outlet for hardware and building supplies. The Appellant proposed to affix signage on the façade of its premises, consisting of a stylised “wordmark” on one side of the building’s portico entrance area and a logo together with a stylised “positioning statement”, on the other side of the portico. Applying State Environmental Planning Policy 64 – Advertising and Signage, Pain J in the Land and Environment Court approved the wordmark sign, but refused to approve the sign containing the logo and positioning statement. The Appellant appeals against that refusal.FACTS
The issue of whether what was proposed was one sign or two is one of fact in all the circumstances rather than construction of SEPP 64. Pain J’s finding that two separate signs were proposed was also a finding of fact, and her Honour did not err in law in reaching her conclusion on this issue. [21], [47]HELD
A
(per Pearlman AJA, Bryson JA agreeing, Hodgson JA dissenting)
(per Hodgson JA)
Whether the whole of the relevant signage could be “a sign” may involve questions of law as well as fact. The coherence of the physical set-up and message of the signage in the present case means that both of its parts correctly constitute “a sign” within the definition of “business identification sign” in cl. 4(1) of SEPP 64. [4], [11]
B
(per Pearlman AJA, Hodgson and Bryson JJA agreeing)
The definition of “building identification sign” requires that a sign “indicates” certain matters in order to fall within the definition. In determining that a business identification sign “must contain” the two nominated matters, Pain J committed an error of law. [14], [27], [52]
(per Pearlman AJA, Bryson JA agreeing, Hodgson JA dissenting)
The sign containing the Appellant’s logo and positioning statement did not indicate the Appellant’s name and the business it carried on at the premises for the purposes of cl.4(1) of SEPP 64. Although the logo and positioning statement might indicate a business of selling hardware, they do not indicate the Appellant’s name, and the definition of “business identification sign” requires both nominated matters to be indicated. [59]
Papadopoulos v Goodwin [1982] 1 NSWLR 413 distinguished.
(per Bryson JA)
The indications of the nominated matters in the definition of “business identification sign” must be relatively clear and concrete if they are to conform with the purpose for which the exclusion from the application of Pt 3 of SEPP 64 is made. Although express words are not essential, symbols and slogans will rarely be so universally understood as to give a sufficiently clear and concrete indication. [23], [26], [27]
(per Hodgson JA)
ORDERSThe sign containing the logo and positioning statement did indicate the two nominated matters. There can be more than one business identification sign for one place of business. [17], [18]
Appeal dismissed with costs.
CA 40913/03
Thursday 8 JULY 2004HODGSON JA
BRYSON JA
PEARLMAN AJA
1 HODGSON JA: The circumstances of this case are set out in the judgment of Pearlman AJA. Essentially, what this Court must address is whether the primary judge made an error of law in either or both of two findings:
Two Separate Signs?(1) that the application under consideration was for two separate signs; and
(2) that the right-hand sign was not a business identification sign.
2 As pointed out by Pearlman AJA, the appellant sought to bring the subject of its application into the exception to cl.9 of SEPP64 for “business identification signs”; and “business identification sign” is defined in cl.4(1) of SEPP64 as:
- “business identification sign” means a sign:
(a) that indicates:
- (i) the name of the person, and
(ii) the business carried on by the person at the premises or place at which the sign is displayed, and
but that does not include any advertising relating to a person who does not carry on business at the premises or place.
3 The first submission of the appellant was that the whole of the signage in respect of which the application was made was such a sign.
4 In my opinion, the question of whether the whole of the relevant signage could be “a sign” can involve questions of law as well as fact. It is true that there is no suggestion that the words “a sign” in the definition have any special meaning; but that does not mean that no questions of law can arise in determining their application.
5 In particular, in my opinion it would be an error of law to hold that the physical characteristics of an object or set of objects were necessarily conclusive for a determination whether or not they could constitute a sign, and that any coherence or unity or interdependence of the message of the object or objects and its various parts was irrelevant. A cogent example suggested by Bryson JA in argument was that of three boards on top of a building, one bearing the letter A, another bearing the letter M, and the latter bearing the letter P. In my opinion, the interdependence of these boards to convey the message “AMP”, as being the business carried on in the building, would be relevant to determining whether the three boards together constitute “a sign”; and a holding to the contrary would in my opinion be an error of law.
6 This gives rise to another consideration that could give rise to a question of law. In my opinion, a finding that a certain object or set of objects constitutes (say) two or three signs does not necessarily mean that it cannot also constitute “a sign”. The fact that “The Lord of the Rings” may correctly be considered as made up of three novels does not necessarily mean that it cannot also correctly be considered as a novel, in three parts. It could be an error of law, in my opinion, to approach the question whether an object or set of objects is “one sign or two” on the assumption that two stated alternatives are necessarily mutually exclusive. The real question in this case is whether the relevant object or set of objects is “a sign”, whether or not it may also correctly be regarded as more than one sign.
7 In my opinion, the passage in para.[23] of the judgment of the primary judge, quoted by Pearlman AJA, does display errors of law, namely treating the circumstance that there was one message that would be viewed as a single coherent whole as not relevant; treating the question whether the physical elements were one sign or two as “the issue”; and holding that, because they were two physical signs, this was conclusive.
8 In my opinion, it is appropriate for this Court to reach a view as to whether this was “a sign”, and to give effect to that view. Certainly, the physical characteristics of the object or set of objects are important. In this case, the content of the relevant sign or signs is on one long wall, albeit a wall emphatically divided into two parts by an entrance portico. However, the whole wall has the same basic blue colour, and the characters and symbols on both parts of the wall are in the same red and white colours. There is expert evidence, not challenged, that the characters and symbols would be viewed as a single coherent whole.
9 What this single coherent whole does is, by the characters on the left part, explicitly identify the person carrying on the business, and one aspect of the business, namely that it is carried on in a warehouse; and then, by the symbols and characters on the right part, further identify the nature of the business as a hardware business (by the hammer symbol), and to reinforce the name by a logo and slogan quite widely recognised as associated with the name Bunnings. The right hand part also adds an advertising message about lowest prices and other unstated advantages.
10 The definition of “business identification sign” makes it clear that the sign may contain some advertising that does relate to the person who carries on business at the premises or place, at least so long as that advertising does not make it inappropriate to describe the sign as a sign that indicates the name of the person and the business carried on at the premises.
11 In my opinion, having regard to the coherence of the physical set-up and of the message, both parts of the signage are correctly considered as being “a sign” within the definition of business identification sign in SEPP64.
12 This Court should not undertake a merits assessment of this sign, and the matter should be returned to the Land & Environment Court for that purpose.
Right-Hand Sign a Business Identification Sign?
13 I do not need to decide this second question, having regard to my view on the first question. However, I will consider it briefly.
14 I agree with Pearlman AJA that the primary judge was in error in saying that a business identification sign had to contain the name of the person and the nature of the business: in my opinion, it is clear that those two matters may be indicated by a sign even though the sign does not actually contain them.
15 In order to determine whether a sign “indicates” these matters, it is relevant to ask “indicates to whom?”. If the name and business are stated explicitly in clear English letters and words, this will certainly be sufficient, because that will indicate the necessary matter to literate English-speaking people. In my opinion, it would also be sufficient if the material conveys the relevant matters to the ordinary reasonable potential customer of the business. I think the golden arches McDonalds sign, outside premises suitable to be a restaurant, does indicate to the ordinary reasonable potential customer of that business the name of the person and the nature of the business carried on at those premises.
16 The appellant led evidence before the primary judge of a survey based on a sample of 407 people selected to represent all residents of Sydney 20 years of age and over. There was unchallenged evidence that this survey was such as to produce an overall sampling precision of plus or minus 4.9% at a confidence level described as 95%. The respondents included 35.5% who shopped at hardware stores less often than every six months. Of the respondents, 88.6% were able to say that the material in the right-hand sign indicated a hardware business, and 61% were able to say that it indicated Bunnings. The latter figure in relation to persons who shop in a hardware store at least every month was 73.8%, and in relation to those who shop in a hardware store every two to six months, it was 64.6%. It could be that this sign appearing on a building of the shape, dimensions and colour consistently used by Bunnings warehouses might produce a higher rate again.
17 It follows in my opinion that the right-hand sign does indicate to something like 90% of the ordinary reasonable potential customers of the business that it is a hardware business, and indicates to something approaching 70% of such customers that it is Bunnings. To those persons, this part of the signage does indicate, by making known, the name of the person and the nature of the business carried on. I do not think it would be enough to indicate the name and nature of the business to something barely over 50% of potential customers; but on the whole, I think these figures are enough to show that the right-hand sign does indicate the name of the person carrying on business at the location and the nature of the business.
18 In my opinion, the circumstance that the left-hand sign states the name of the person and implies the nature of the business does not prevent the right-hand sign also being a business identification sign. Plainly, there can be more than one business identification sign for one place of business. In some circumstances, the provision of one clear sign that directly indicates the person and the business could mean that another sign that coveys the same thing indirectly is not a sign that “indicates” these things, because these things are otherwise well and truly indicated. However, if considered independently the latter sign does indicate these things, in my opinion it will be disqualified from being a business identification sign only if it can reasonably be considered to have no identification role, either because any person who sees it would already have seen the other sign or for some other reason. In this case, at least if one accepts that these are two signs, one should accept that persons may see the right-hand sign and not the left-hand sign; and in any event, the hammer logo on the right-hand sign could be considered a clearer indication of the nature of the business than the word “warehouse”.
19 For those reasons, in my opinion the appeal should be allowed, the primary judge’s decision set aside, and the matter remitted to the primary judge so that the application for the totality of the signage can be considered on its merits.
20 BRYSON JA: I agree with the conclusions of Pearlman AJA, but will state my own view on the definition of “business identification sign” in cl.4(1) of SEPP64.
21 In view of some observations in the course of argument it seems desirable to say that it is not necessary that the physical elements which compose one sign should all be connected: they usually will be, but in concept several separated elements could compose one sign. There is no expression inconsistent with this in the judgment of Pain J. Her Honour’s finding that the application relates to two separate signs was well warranted on the evidence and, as Pearlman AJA has shown, it is a finding of fact which is not open to appellate review.
22 The difficulty of construction of cl.4(1) of SEPP64 and its application to the facts arises from the range of meanings for which “indicates” and cognate words are used in the ordinary use of the English language. The word can be used where context shows that the indication referred to is vague. As illustrations, at a railway station we say that a notice board indicates the departure times of trains and a signpost indicates Platform 1: context shows that precision is intended. An inquiry of an uninformed fellow traveller shows that he cannot give any indication of the time: the reference is to more than imprecision, as he has no idea at all. “Indicates” is worse than ambiguous; it yields not alternative meanings, but a wide spectrum of possible shades of meaning. Context and purpose are everything.
23 In SEPP64 Pt.3 Advertisements has a broad application to “signage” to which cl.4 Definitions gives a very comprehensive meaning. By cl.9 four designated kinds of signs are excluded from the application of Pt.3 and the extensive prohibitions and controls which it imposes, including its comprehensive controls on advertisements. “Business identification sign” is one of the designated exceptions. In my opinion the context shows that in the definition of “business identification sign”, “indicates” is used in a sense which is relatively precise: it cannot have been a purpose of cl.9 to create wide or indefinite exclusions from the scheme of control in Pt3, which would not be effective if the exclusions from it were wide. The purpose of the definition is to define the exception for signs identifying name and business, not to open a wide array of signage and advertising which is to be free from the detailed provisions of Pt.3. The indications of the name and the business of the person who carries on business at the place at which the sign is displayed must be relatively clear and concrete if they are to conform to the purpose for which the exclusion is made. The sign on the left hand side, with the words “Bunnings Warehouse” appears to me to exemplify what was intended. Words are not essential: there may be pictograms or other symbols which are so well known that they indicate the name and the business: but there can be few symbols which are so well known as to make an indication of the kind to which the definition of “business identification sign” refers.
24 The sign on the right bears Bunnings’ logo – a hammer in a circle and the text “Lower prices are just the beginning…”. The survey in evidence which showed that 61% of respondents associated the symbol and slogan with Bunnings Warehouse showed that 39% did not, and falls far short of the indication which plain words would give (and in fact, do give on the left hand sign). In the actual circumstances in which the right hand sign is now displayed, the presence of the left hand sign with the words “Bunnings Warehouse” in great prominence means that the right hand sign would have no function at all of indicating to observers the name of the person who carries on business at the premises and the business carried on there: observers would know those things from the plain words of the left hand sign.
25 In the context in which the right hand sign is displayed, including the prominent left hand sign, a finding that the right hand sign indicated Bunnings’ name and business would be close to a perverse finding: in reality, the observer would already know the name and business from the left hand sign, and whatever it was that the right hand sign indicated to the observer, it would be something else.
26 Symbols and slogans are very unlikely to give a sufficiently clear and concrete indication to make a sign quality as a “business identification sign” within the definition in cl.4(1). Express words are not the only way of indicating a name and a business and I see the possibility that a symbolic indication might be so widely understood as to fall within the definition. Examples suggested in argument were McDonalds’ golden arches and the Shell Company’s shell. Whether these give an indication sufficiently clear and concrete to fall within the definition needs not be fully explored now. It does seem worth observing that their claims for consideration are very different, as a shell is a pictogram for the name of the Shell company but is not an indication that the business is a supplier of petroleum products: the association by which golden arches refers to a name or a business does not depend on reference in language to the name or business, by alphabetical representation of words, by a pictogram or in any other way. I would think that something close to universality of recognition of a symbol, as close to universality as the recognition given to plain language, would be necessary. As the survey evidence shows, Bunnings’ logo and slogan fall far short of giving so clear an indication of the name. To understand without prior information that a hammer logo and the words “Lower prices are just the beginning …” refer to a hardware business, requires no great acuity, and it is not surprising that the survey evidence shows 88% recognition: but both the name and the business are to be indicated; they are not merely to be referred to, but they are to be indicated.
27 In my opinion Pain J stated the test somewhat too highly by stating “… a business identification sign under the definition of cl.4(1) of SEPP64 must contain the name of the person and the nature of the business carried on at those premises to which the sign is affixed”. This test and its words “must contain” are too stringent, but not by any great degree. The meaning of “indicates” which should be applied, requires a clear and concrete indication, and indications which are less direct and rely on known associations between logos, slogans or other symbols and an unstated name or business will rarely be so universally understood as to indicate the name and business within the meaning of the definition.
28 Her Honour’s conclusion was correct. In my opinion the Court of Appeal should dismiss the appeal with costs.
29 PEARLMAN AJA: This is an appeal from a decision of Pain J in class 1 of the jurisdiction of the Land and Environment Court relating to proposed signage on the Appellant’s premises at 311 Parramatta Road, Auburn. The Appellant trades under the name Bunnings Warehouse, using the premises as a retail outlet for hardware and building supplies.
30 The proposed signage was to be located on the eastern façade of the premises, the plane of which was broken by a large portico entrance area. On the left hand side of the portico, the Appellant proposed to affix a stylised “wordmark” (“the left hand sign”) showing the words “Bunnings Hardware” and having a display area of about 125 square metres. On the right hand side of the portico the Appellant proposed to affix a logo (“the right hand sign”) comprising a hammer in a circle together with and partially covered by a stylised “positioning statement” containing the words “Lowest prices are just the beginning…”. The display area of the right hand sign was to be about 172 square metres.
31 The Land and Environment Court approved the left hand sign, but refused to approve the right hand sign, and it is against that refusal that the Appellant appeals.
32 The Respondent has filed a submitting appearance, except as to costs.
The Grounds of Appeal
33 An appeal from a decision of the Land and Environment Court to this Court is confined to a question of law (s57(1) Land and Environment Court Act 1979). The Appellant claims that her Honour erred in law:
(1) in determining that the proposed signage was two signs, and not one; and
SEPP 64(2) in determining that the right hand sign was not a business identification sign within the meaning of State Environmental Planning Policy No 64 – Advertising and Signage (“SEPP 64”).
34 SEPP 64 regulates and controls advertisements and signage. It applies to the whole of the State, and it overrides all other environmental planning instruments in the event of an inconsistency.
35 The word “signage” is defined in cl 4(1) 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.”
36 Broadly speaking, the scheme of SEPP 64 is that signage generally must satisfy specified objectives and assessment criteria, and more particular controls apply in certain circumstances to all signage unless exempted. Thus cl 8 of Pt 2 deals with signage generally, and provides 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 (set out in cl 3) and that the signage satisfies assessment criteria specified in Sch 1. The more particular controls are set out in Pt 3, but cl 9 exempts from the operation of Pt 3 certain types of signs, one of which is business identification signs. One of the more particular controls to be found in Pt 3 is cl 19, which provides that the consent authority must not grant development consent to the display of an advertisement with an advertising display area greater than 45 square metres unless a development control plan is in force that has been prepared on the basis of an advertising sign analysis for the relevant area or precinct.
37 The expression “business identification sign” is defined in cl 4(1) as follows:
“‘business identification sign’ means a sign :
(a) that indicates:
(i) the name of the person, and
(ii) the business carried on by the person
at the premises or place at which the sign is displayed, and
(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,
but that does not include any advertising relating to a person who does not carry on business at the premises or place.”
Her Honour’s Judgment
38 Having regard to the provisions of SEPP 64, the issues that arose for determination before her Honour were as follows:
(1) Was the proposed signage two signs, or one?
(2) Did the proposed signage fall within the definition of “business identification sign”?
(4) Did the proposed signage satisfy the objectives of SEPP 64 and the(3) If the proposed signage was not a “business identification sign”,
could it be otherwise approved under SEPP 64?
assessment criteria in Sch 1?
39 On the first issue, her Honour’s finding is set out in par [23] of her judgment as follows:
- “It may be that this signage will be read as one message, as Dr Lamb submitted. The issue which falls to me to determine, however, is not whether the message of the elements of the signage will be considered by a viewer as a single coherent whole but whether or not the physical elements are, in fact and at law, one sign or two within the definition of ‘signage’ in cl 4(1) of SEPP 64. It is entirely logical to conclude that the proposed signage is two physical signs. It necessarily follows that, in a planning context, the application is for two separate signs.”
40 It was common ground between the parties at the hearing that, if the application was determined to be for two separate signs, then the left hand sign was a “business identification sign”. Accordingly, Pt 3 did not apply to it.
41 The question, then, was whether the right hand sign was a “business identification sign”. Her Honour’s finding on this question is set out in par [36] of her judgment as follows:
- “I therefore determine that a business identification sign under the definition in cl 4(1) of SEPP 64 must contain the name of the person and the nature of the business carried on at those premises to which the sign is affixed. It also follows that, in addition, such a sign may include optional elements which are those dealt with in (b) of the definition of this term. As a consequence, it necessarily follows that the separate right hand sign containing the hammer logo and the positioning statement is not a business identification sign”.
42 The consequence of this finding was that Pt 3 applied to the right hand sign. It was common ground that no development control plan as contemplated by cl 19 was in force, and her Honour had found that the right hand sign had a display area greater than 45 square metres. Hence her Honour concluded that the right hand sign was prohibited under cl 19.
43 Her Honour proceeded to assess the left hand sign in accordance with the objectives and assessment criteria as required by cl 8, and concluded that the left hand sign satisfied those matters.
44 Accordingly, her Honour made orders granting development consent but subject to a condition limiting the consent to the left hand sign and subject to another condition requiring the removal of the temporary right hand sign already in place.
The First Ground of Appeal – One Sign or Two?
45 Mr Foster SC, appearing for the Appellant, submitted that her Honour erred in law in focussing on the physical elements of the signage to the exclusion of the message conveyed by the signage and the physical elements in their context. He contended that the left hand sign and the right hand sign would be read as a single coherent whole, and that, furthermore, because the signage is to be attached to one large building, despite the portico in the centre of the building, the context of the signage cannot be ignored.
46 The error of law, so Mr Foster said, is that her Honour misconstrued the proper construction of the word “sign” and asked herself the wrong question by limiting her consideration to the physical elements alone.
47 There is nothing in SEPP 64 that suggests that the word “sign” bears any special meaning, nor can I find anything in SEPP 64 that would assist in determining the approach to be taken to the issue of whether what was proposed was one sign or two. Mr Foster submitted that the reference to “representation” in the definition of “signage” in cl 4(1) “tends” to suggest that, on its proper construction, the word “sign” requires attention to be paid to the elements of meaning and context as well as the physical elements. I do not accept this submission as determinative of the issue. In my opinion, the issue of whether what was proposed was one sign or two does not depend upon any particular construction of SEPP 64. Rather, it is a question of fact in all the circumstances. Different conclusions were possible, and the decision as to which was the correct conclusion seems to me to be a question of fact (Hope v Bathurst City Council (1980) 144 CLR 1 at 8). I take the view that, properly understood, her Honour’s finding that two separate signs were proposed was a finding of fact. It follows that her Honour did not err in law in reaching the conclusion that she did.
The Second Ground of Appeal – Was the Right Hand Sign a “Business Identification Sign”?
48 The Appellant’s contention is that, in determining that a business identification sign “must contain” the two nominated matters, her Honour misdirected herself as to the question to be determined, and erred in law. The definition of “business identification sign” uses the word “indicates” not the expression “must contain”.
49 In Mr Foster’s submission, a sign may “indicate” matters without “containing” them – the former expression is used to convey a relatively vague or partial reference to a thing, and the latter expression is used where more specific reference is required. He took the Court to the Shorter Oxford Dictionary, where the word “indicate” is defined as meaning:
- “To point out, point to, make known, show (more or less distinctly)…To state or express, esp. to express briefly, lightly or without development; to give an indication of.”
50 In Mr Foster’s submission, the words “must contain” impose a more onerous requirement than the word “indicates”, and their use by her Honour constitutes an unwarranted gloss on the definition of “business identification sign”.
51 In my opinion, Mr Foster’s submission on this point is correct. I do not think that the word “indicates” and the words “must contain” are synonymous in the context of the definition of “business identification sign”. To adopt the dictionary definition of the word “indicate”, what is required to bring the sign within the definition of “business identification sign” is that the nominated matters be pointed out, pointed to, made known or shown. The nominated matters are not required to be contained (in the sense of explicitly stated) within the sign.
52 I conclude, therefore, that her Honour has erred in law in determining that, to be a “business identification sign”, the signage “must contain” the nominated matters.
The Application of the Proper Construction
53 The Court was invited to determine for itself whether the right hand sign falls within the definition of “business identification sign” on its proper construction. If it does so, then it will be necessary for the merit consideration to be carried out in accordance with cl 8 – that is, whether the right hand sign meets the objectives and satisfies the assessment criteria. On the finding made by her Honour, this last step did not arise. It was conceded that this last step is a matter for merits review in the court below, and should, if it arises, be remitted to that court for determination.
54 I turn then to consider whether the right hand sign “indicates” the two nominated matters.
55 The difficulty that the Appellant faces, of course, is that neither the name “Bunnings” nor the business of hardware and building supplies is explicitly indicated in the right hand logo.
56 The Appellant sought to overcome this difficulty by contending that, considered as a whole, the hammer logo and the positioning statement bear a reputation such that the right hand sign indicates, by reference, both the name “Bunnings Warehouse” and the business of hardware and building supplies. Mr Foster submitted that this is borne out by the evidence before her Honour which consisted, amongst other things, of a market research report carried out by Right Marketing. That report, which contained a statistical analysis of the market recognition of the right hand sign, was unchallenged in the hearing before her Honour. In brief, the conclusion in that report was that 61% of surveyed respondents correctly identified a representation of the right hand sign as belonging to Bunnings Warehouse, and 88% identified it as referring to a hardware business.
57 This is sufficient, in Mr Foster’s submission, to bring the right hand sign within the definition of a “business identification sign”. In support of this contention, Mr Foster relied upon the decision of Wootten J in Papadopoulos v Goodwin [1982] 1 NSWLR 413. In that case, the issue was whether an instrument complied with a requirement in s88(1) of the Conveyancing Act 1919 that it “clearly indicate” the land to which the benefit of an easement was appurtenant. His Honour held that a document “clearly indicates” the required matter if the document refers to another document in which the matter is clearly stated.
58 I do not find this authority of much assistance. In the first place, it is concerned with the expression “clearly indicates” which, as Wootten J noted at 417, is a more stringent requirement than merely “indicates”. Secondly, however, it is based upon the fact that it referred to another document in which the required matter was stated. That is not the situation here. The right hand sign does not refer to any other sign or representation that indicates the nominated matters.
59 We are asked to infer that the right hand sign indicates the nominated matters because its reputation is such that it is seen by some of those perceiving it to refer to the nominated matters. In my opinion, this is not sufficient. It is conceivable that the hammer logo and the positioning statement might indicate a business of selling hardware. They refer to an item of hardware and to prices. But it is inconceivable, in my opinion, that the hammer logo and the positioning statement indicate the name of the person. The right hand sign does not point out, point to, make known or show the name of the person. There was no dispute that the definition of “business identification sign” requires both matters to be indicated. Accordingly, the right hand sign does not fall within that definition.
60 I have not ignored Mr Foster’s submission that a conclusion such as this would mean that many famous signs – such as the golden arches for McDonalds and the scallop shell for Shell service stations – would not constitute business identification signs. That may well be so, but it would not be the harsh and capricious result for which Mr Foster contends. It would simply mean that, in this State, such a sign might, in all the circumstances, fall to be considered under Pt 3 of SEPP 64 (as well as under the general requirement of satisfaction of the objectives and the assessment criteria) and one of the consequences would be that it would be required to have a display area of not more than 45 square metres.
61 I would dismiss the appeal with costs.
Last Modified: 07/16/2004
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