Crystal Carwash Pty Ltd v Woollahra Municipal Council

[2008] NSWLEC 1165

Land and Environment Court

of New South Wales

CITATION:

Crystal Carwash Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 1165

PARTIES:

APPLICANT
Crystal Carwash Pty Ltd

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10933 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Building Certificate :- unauthorised signage, streetscape, heritage item, proliferation of signs, necessity for business identification.

LEGISLATION CITED:

State Environmental Planning Policy No. 64
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

01/02/2008

 
DATE OF JUDGMENT: 

1 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Sahade, barrister
of Sydney Chambers

RESPONDENT
Ms J. Hewitt, solicitor
of Home Wilkinson Lowry, solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

1 May 2008

10933 of 2007 Crystal Carwash Pty Ltd v Woollahra Municipal Council

JUDGMENT

1 Commissioner: This is a Class 1 Appeal No. 10933 of 2007 between Crystal Carwash Pty Ltd and Woollahra council in regard to the refusal to issue a Building Certificate for two unauthorised advertising signs for premises at No.759 New South Head Road, Rose Bay.

2 The subject property is a combined service station and carwash. It is actually a redevelopment of an earlier BP service station and carwash that had existed on the site for 20 years. The redevelopment was approved with a condition that any signs needed separate application and approval.

3 Appearing for the applicant was: Mr M Sahade, barrister; Ms N Demos from Arielle Dress Shop that backs onto the site with a door for service station/carwash customers; Mr Scott from Hannan butchers across the street from the site; Mr Brian the barber nearby; Mr J Coady, town planner and traffic expert; Mr M George, town planner.

4 Appearing for the respondent were: Ms J Hewitt, solicitor, Ms M Easton, compliance office; Mr G Fotis, town planner.

5 The supporters evidence could be summarised as: the Rose Bay shopping centre supplies many service and supply functions to the local community. Part of that is the interdependence of the various businesses. For instance, the dress shop, the barber and the butcher all have customers who are waiting for their cars in either the service station or the carwash. They support the retention of the signs as they see them as contributing to the service provision and viability of the subject site and the village.

6 The applicant tendered a petition taken up in the shopping centre to ask council not to prosecute any proprietors for existing signs on their businesses, including the Crystal Carwash. There are about 400 signatories. The petition feared prosecution would result in additional costs and decline in business at Rose Bay.

7 In regard to the subject site, one of the signs, called Sign B in the appeal, is actually fixed to the wall of No.779 New South Head Rd, and did not form part of the application for the Building Certificate. It is about 8.5m long x 1.2m high and placed about 4m above the ground level. There is no owner’s consent to the application and it is described in the application as “Business Identification sign”. It cannot be that as it is not on the subject property and would have to be classified as an “advertising sign”.

8 The earlier BP service station and carwash had a BP pylon sign. It had panels showing “car care” and “car wash” and existed on the northwest corner of the site as shown in photos in Exhibit B. Other signs on the BP service station and carwash appeared to be fascia signs on the building and some lower signs in the paved areas identifying water and air and vacuum and carwash entry/exit and fuel prices.

9 With the redevelopment, there is a replacement of the BP pylon with a typical “Shell-Coles-Discount-fuel-price” pylon sign about 6m high on the northwest corner of the site adjoining the Post Office. That pylon sign is approved and could accommodate a carwash sign except the applicant says that Shell will not permit that.

10 As a result the applicant erected another large pylon sign about 6m tall for Crystal Carwash beside the Shell pylon. Contrary to the Shell sign, the illuminated sign at the top of the pole overhangs the public footpath, and that is called Sign A in this appeal.

11 In the middle of the frontage to the site is a smaller approved illuminated pole sign for Crystal Carwash. It is about 3m tall. The applicant says this is insufficient as the carwash needs to attract drivers, and whilst the service station has good signage, the carwash being at the rear would be un-noticed by drivers if it did not have the bigger signs.

12 The applicant says the council’s Rose Bay Development Control Plan is oriented to allowing signs for pedestrians, and for single use sites, as a result the permissible signs for pedestrians can be smaller. The applicant’s experts went so far as to say the Rose Bay Development Control Plan should not apply to the signs.

13 This is based on the DCP being primarily aimed at future redevelopment of the village and this site with ground floor retail and upper floor commercial/residential development having 4–storeys total. Obviously the service station/carwash is quite different in character.

14 Nevertheless, this appeal is about advertising signs, and the DCP has guidelines and controls specific to signage and advertising. They are principles often seen in statutory instruments and controls that seek to improve the streetscape and character of local shopping centres.

15 Amongst the principles are:

• Be unobtrusive, informative and compatible with an attractive shopping environment.
• Avoid visual clutter
• Comply with Woollahra LEP 1995.
• Building identification signs are the only ones permitted above awning height.
• Co-ordinated presentation for all signs where there are multiple occupancies or uses in the same development.
• Advertising unrelated to the business on the subject premises is not permitted.
• Signs on public footpaths not permitted.
• Maximum sign area of all signs on a property should not exceed 0.5 sq m per metre of frontage to a public road.

16 One of the respondent’s concerns is that the pylon sign is beside the Shell pylon and both are beside the Post office that is a Category 3 heritage item. Mr Fotis is concerned that the Shell pylon was accepted, but the second pylon sign creates visual clutter for the heritage item as well as in the streetscape. The council’s heritage officer however had made no adverse comment on the carwash pylon.

17 The respondent had also reviewed the signs under State Environmental Planning Policy 64. It has similar assessment criteria to the DCP, viz:

• Compliance with applicable controls for future character of an area (in this case the Rose bay DCP).
• Consistency with a particular theme for outdoor advertising inh the locality.
• Scale, proportion and form appropriate for the streetscape
• Make a contribution to visual interest of the streetscape
• Reduce clutter by rationalising or simplifying existing advertising
• Screen any unsightliness
• Do not protrude above buildings, structures or tree canopies.

18 Also under DIPNR’s Guidelines for Outdoor Advertising the guide suggests where a building is setback from the frontage only one pylon sign be permitted and be designed to carry more than one message using replaceable panels. The approval for the service station and carwash included 2 pole signs, being the Shell pylon and the smaller Crystal Carwash pole sign, but refused nine (9) other signs along the side boundaries as excessive.

19 Under the council’s controls awning fascia signs are permitted and there are a considerable number of them along the top hamper of the main building on the site related to carwash services. The canopy over the service station pump area is distinguished by Shell yellow and red banding with no advertising. I was not told whether carwash signs could be incorporated on it.

20 The applicant’s case is essentially that it wants to alert drivers as far away from the site as possible so they can make a decision about using the facility. The disputed pylon sign is visible from well west of the site along New South Head Road, and the other signs come into view as one gets closer. The central approved pole sign is quite visible from 200 m away above the roofs of parked cars, and due to the break in parked cars necessitated by the two drive entries, it is highly noticeable as one passes the site. The disputed wall sign on No. 779 becomes highly visible as one gets closer to the site. There are approved smaller signs for the carwash beside the drive entries to guide drivers. They add to the easy identification of the site.

21 From the east, the approved pole sign in the middle of the site is the most noticeable due to footpath tree canopies that block out the taller pylon sign.

22 The applicant drew attention to a number of signs on other properties in the village that appear to not comply with the DCP. Ms Easton had done a survey of most of them and most were approved prior to the current DCP, or had been there so long council had not taken action. Some of those reviewed would be acted upon she said.

23 In amongst the signs one could appreciate the character of the mostly older buildings and some of the restorations that revealed the potential for the “village streetscape” to be improved and the character enhanced over time. Presumably any new buildings will have to follow the DCP to reflect the village character, and part of this would be the advertising controls.

24 The carwash/service station is a “new” building and is subject to the controls. In seeking to mould the character of Rose Bay over time the council has drafted, exhibited for public comment and finally adopted the control plan. Although the carwash/service station is a lesser form of development to the 4-storey potential allowed under the DCP, its setback from the frontage and its function of vehicle servicing give it a role in the village economy and day-to-day activity of local people that is not intrusive to the streetscape. Clearly by being the site for a service station/carwash for over 20 years the locals all know where it is.

25 The approved pylon signs and the Shell colours and the Crystal Carwash colours are quite distinctive in my opinion, and are readily identifiable as one drives along the road. The disputed signs add further emphasis no doubt, but as this council and many others have found, a proliferation of signage is counter productive to communication with the consumer, and destroys streetscape character. A reasonable limit has to be drawn somewhere, and Woollahra Council has decided on the limit it thinks is appropriate under its DCP.

26 I do not agree with the applicant’s Mr George, that the Rose Bay DCP has little relevance to the subject case and its signage requirements are different to mainstream retail uses. The controls are able to be interpreted in regard to urban design outcomes for the whole village that are the determinants of specific controls. I do not accept that the signage is necessary to further promote the legibility of the site entry. I do not accept the existence of other signs that may not comply with the controls can justify these signs; the other signs may require investigation and action by the council. In time, the signs will change as businesses change, and hopefully not be permitted to be replaced unless with complying signs.

27 In this case I agree with the council’s evidence that the two disputed signs are an unacceptable proliferation for this site, quite apart from the legal complications (that may be overcome) of one sign being off-site on No.779, and the other overhanging the footpath without consent under the Roads Act 1993. The clutter of a second 6m high pylon sign directly adjacent the Post Office heritage item cannot be an improvement to its setting in streetscape terms even if the council’s heritage officer made no adverse comment. The streetscape overall will be better for the simplification of advertising structures on the site.

28 Although the applicant said Shell would not allow a carwash sign on the Shell pylon, there was no confirmation of this in evidence. The principles of :

Co-ordinated presentation for all signs where there are multiple occupancies or uses in the same development,
and
Reduce clutter by rationalising or simplifying existing advertising,
are particularly applicable in that regard, and should be pursued if the applicant wants a higher pylon sign facing west.

29 The Orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 1 and 2.

___________________

K G Hoffman
Commissioner of the Court
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