DeiCorp Construction Pty Limited v Council of the City of Sydney
[2013] NSWLEC 1269
•13 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: DeiCorp Construction Pty Limited v Council of the City of Sydney [2013] NSWLEC 1269 Hearing dates: 11 December 2013 Decision date: 13 December 2013 Jurisdiction: Class 1 Before: Dixon C Decision: In matter number 10459 of 2013:
(1)The appeal is upheld.
(2)Development Application No D/2013/153 is granted for the display of four signs at 161 Redfern Street, Redfern subject to the conditions in Annexure "A".
In matter number 10777 of 2013:
(1)The appeal is upheld.
(2)Council is directed to issue a building certificate for the signs following the modification as required by Condition 2 of the Development Consent D/2013/153 as ordered by the Court in proceedings number 10459 of 2013.
Catchwords: APPEAL - illuminated signage Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Major Development) 2005
State Environmental Planning Policy No. 64, Advertising and SignageCategory: Principal judgment Parties: Deicorp Construction Pty Limited (Applicant)
Council of the City of Sydney (Respondent)Representation: Ms J Hewitt (Applicant)
Mr A Hawkes (Respondent)
City of Sydney Council (Respondent)
HWL Ebsworth Lawyers (Applicant)
File Number(s): 10459 of 2013 10777 of 2013
Judgment
The applicant, DeiCorp Constructions Pty Ltd, seeks approval to display four permanent illuminated signs on the roof of a mixed-use building located on the corner of Redfern and Gibbons Street, Redfern. The signs are erected and display the word 'DeiCorp' on the northern and southern sides of the structure and the letters 'DC', which is the applicant's company logo, on the western and eastern sides of the structure.
The respondent, the Sydney City Council, has refused its consent to the display of the signage and that decision founds the applicant's appeal to the Court under s 97(1) of the Environmental Planning and Assessment Act 1979 (EP & A Act). The development appeal is proceedings no: 13/1045.
The Court is also dealing with the applicant's appeal against the Council's refusal of its building certificate application for the development. The building certificate appeal is matter no: 13/10777.
The background facts and the statutory framework against which the Court must determine these applications is set out in the Council's agreed statement of facts and contentions (Exhibit 3). The statement also identifies the matters in dispute. However, most of the issues identified in the statement have been resolved by the provision of further information and/ or the applicant's agreement to the imposition the Council's draft conditions of consent (Exhibit 4).
Contentions
The remaining issues are:
1. The imposition of a 3-year time limit on the consent - as proposed by condition 7.
2. Affixing a perforated backing to the existing signage - as proposed by Condition 2 (a).
3.The modification of the northern and southern signage to read the name of the building as 'Deicota' rather than the applicant's company name of 'DeiCorp'.
Objectors' evidence
In addition to the Council's issues the Court has also received evidence from three local residents who oppose the development. Their written submissions are included in the Council's bundle of documents (Exhibit 2).
Two of the objectors attended the hearing and gave oral evidence to the Court. They were Ms Murray of 122 Renwick Street, Redfern and Mr S Palmer of 62 William Street, Redfern.
Ms Murray told the Court that the illuminated signs were visible from her rear courtyard at night and presented as an intrusive blue light in the night sky. She said the light interferes with her enjoyment of her rear courtyard. The Court inspected her property, albeit in the daylight, to consider the proximity of her property to the development and its impact.
Mr Palmer expressed a similar concern about the illuminated signage at night. He said the blue light stood out against the night sky and interfered with his views from the rear of his property. The Court attended Mr Palmer's premises and inspected the signage from the front of his property. It was unable to gain access to the premises.
Expert evidence
Each party relies upon expert town planning evidence. The Council's planner is Ms C Williamson, and the applicant's consultant planner is Mr A Ludvik. They attended the view and the objectors' properties and gave oral evidence to the Court. They also prepared a joint planning report (Exhibit 5).
The Site
The site is located within the Redfern Waterloo precinct. The precinct is a State significant site. The consent authority for all major development within the precinct (in excess of $10 million) is the Minister.
The Minister approved, on the advice of the Department of Planning, the building on which the signs are erected.
The consent authority for all signage on the building, however, is the Sydney City Council.
The Statutory framework
The State Environmental Planning Policy (Major Development) 2005 (Major Development SEPP) is the main planning control for development of this site. The relevant provisions are contained within Part 5 - The Redfern Waterloo Authority Sites in Schedule 3.
Clause 3 of Pt 5 of Sch 3 to the Major Development SEPP addresses the relationship between that instrument and other environmental planning instruments. It provides that "All other environmental planning instruments do not apply to the Redfern- Waterloo Authority Sites, except for other State environmental planning policies"(SEPPs). Therefore, the Council's usual planning controls - Sydney Local Environmental Plan 2012 and its associated Sydney Development Control Plan 2012-do not apply in this case.
The site is within the Business Zone - Commercial Core under the Major Development SEPP. The planners agree that the development represents 'building identification signs' in accordance with the definitions adopted by cl 2(1) of Pt 5 of Sch 3 to the Major Development SEPP. Development for that purpose is permissible with consent within the zone (p 1 Exhibit 5).
Despite the statutory framework outlined the Minister has approved (in accordance with cl 22(4) of the Part 5 of Schedule 3 of the Major Development SEPP) that the Council's City of Sydney Signage and Advertising Structure Development Control Plan 2005 (DCP) be considered as a guideline as part of the Draft Urban Design Principles, Redfern Centre.
Therefore, in this case the Court must consider the DCP provisions as guidelines for the purpose of cl 22 but not as DCP provisions adopted under the EPA Act.
Clause 22 of Pt 5 of Sch 3 to the Major Development SEPP provides:
22 Design excellence
(1) Consent must not be granted to a new building or to external alterations to an existing building unless the consent authority has considered whether the proposed development exhibits design excellence.
(2) In considering whether proposed development exhibits design excellence, the consent authority must have regard to the following matters:
(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,
(b) whether the form and external appearance of the building will improve the quality and amenity of the public domain,
(c) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency,
(d) if a competition is held as referred to in subclause (3) in relation to the development, the results of the competition.
(3) The consent authority may require a design competition for any development over 12 storeys consistent with guidelines issued by the Redfern-Waterloo Authority and approved by the Minister.
(4) The Redfern-Waterloo Authority may draft a guideline to be approved by the Minister detailing what matters are to be addressed for design excellence and for the conduct of design
competitions.
The provisions of State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64) also apply to this development. They provide controls and assessment criteria for signage on the site. Under SEPP 64 the development is defined in cl 4 (1) as "building identification signage".
The aims and objectives of SEPP 64 are expressed in cl 3(1). It provides:
3Aims, objectives etc
(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.
DCP - a 'building name signage' or 'building identification signage?
The application of the provisions of the DCP as guidelines has generated some debate in this case.
The Council's planner Ms Williamson submits that where SEPP 64 is silent the DCP provisions can operate to supplement those controls. Although, she concedes that the DCP cannot operate inconsistently with the terms of SEPP 64. Despite that, Ms Williamson, told the Court that a 'building identification sign' under the SEPP 64 is the same as a 'building name sign' under the DCP. Therefore, the DCP can control the content of the development.
The applicant's planner disagrees. Mr Ludvik's evidence is that the DCP provisions have little application to the subject development because the signage is not a 'building name sign' as defined under the DCP but rather a 'building identification sign' as defined under SEPP 64. They are very different definitions.
A 'building identification sign' is defined in cl 4 of SEPP 64. It provides:
building identification sign means a sign that identifies or names a building, and that may include the name of a business or building, the street number of a building, the nature of the business and a logo or other symbol that identifies the business, but that does not include general advertising of products, goods or services.
A 'building name sign' as defined in cl 3.3.34 and cl 3.3.11 of the DCP is restricted to the name of the significant tenant of the building or its owner where the tenant or owner occupies the largest amount of floor space within the building relative to the other tenants or occupants.
The evidence taken at the site inspection at the commencement of the hearing is that the word 'DeiCorp' is the business name of a commercial tenant within the building. The Court inspected the premises of the tenant who occupies five of the six suites on one of the commercial floors. The proposed signage refers to that business name.
The applicant submits on the evidence taken at the view and that of its planner Mr Ludvik that the development satisfies the definition of a building identification sign under the SEPP. There is no requirement for a building identification sign (as defined under SEPP 64) to reflect the significant tenant; that is only a requirement of the DCP definition of a building name sign. It submits the two definitions are plainly inconsistent.
In that circumstance the applicant submits (based on Mr Ludvik's oral and written evidence in the joint report at page 9) that the DCP provision can have no effect because of the operation of s 74C(5) of the EP & A Act. The section states:
(5) A provision of a development control plan (whenever made) has no effect to the extent that:
(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or
(b) it is inconsistent or incompatible with a provision of any such instrument.
According to Mr Ludvik SEPP 64 aims " to regulate signage (but not the content) under part 4 of the Act ": cl 3(1)(b). He refers the Court to cl 3(2) that specifically states: "This policy does not regulate content of signage..." Therefore, the applicant submits that in this case the DCP cannot operate inconsistently with that stated aim and the building identification sign definition applicable to this development.
Finding - DCP guidelines
Although there may be some circumstances where the DCP could be applied as a guideline to regulate the content of signage; for example in advertising signage, in my assessment of the evidence it cannot in circumstances where the planners agree that the signage is a building identification sign under the terms of SEPP 64.
The DCP controls building name signs and this application is for a building identification sign as defined by SEPP 64.
For the reasons stated by the applicant, I find that the DCP cannot operate to control the content of this building identification sign.
In my assessment of the evidence and the applicable State Policies, the DCP is only relevant by virtue cl 22 of Pt 5 of Sch 3 to the Major Development SEPP for the purpose indicated in that clause. Therefore the DCP provisions cannot operate inconsistently with the provisions of SEPP 64 that regulate this sign.
I accept Mr Ludvik's expert opinion that in the circumstances of this case where the signage falls within the definition under cl 4 of SEPP 64 the contents of the signage cannot be undermined or controlled by the DCP provisions. I do not accept as contended by the Council's planner that the DCP provisions add to the SEPP provisions. The DCP cannot read down the provisions of the SEPP. I agree with Mr Ludvik assessment that the provisions are inconsistent.
Ms Williamson is of the opinion that because the signage denotes the name of a company which occupies only a small amount of space within the building that the signs serve as advertising for that company rather than denoting the primary use of the building as a residential building.
Her observation however, is not relevant in circumstances where there is no requirement under the SEPP 64 definition of 'building identification sign' for the dominant tenant to be the business named. A business name of a tenant is sufficient to satisfy the SEPP definition. The SEPP allows signage of any business name not necessarily the major tenant. It is the DCP that requires the name of a significant tenant and therein lies the inconsistency between the SEPP and the DCP provisions. In that circumstance the SEPP must prevail.
I find on the evidence taken at the view and based on Mr Ludvik's expert opinion that DeiCorp is the business name of a commercial tenant in the building and the signage does not include general advertising, products, goods and services. Therefore, subject to an assessment of the matters raised by cl 8(a) and (b) of SEPP 64 and cl 22 of Part 5 of the Major Development SEPP and a merit assessment (s79C (1) of the EPA Act), the signage is capable of being approved.
Clause 8(a) of SEPP 64
Clause 8 of SEPP 64 provides as follows:
STATE ENVIRONMENTAL PLANNING POLICY NO 64--ADVERTISING AND SIGNAGE - REG 8
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.
Clause 8(a) requires consistency with the objectives of the policy as set out in cl 3 (1)(a) and cl 8 (b) requires the Court to be satisfied that the subject of this application satisfies the assessment criteria specified in Schedule 1.
The planners have different opinions about the development's consistency with objective expressed in cl 3(1)(a)(ii). It requires the signage to provide effective communication in suitable locations.
Ms Williamson explained to the Court, consistent with her written evidence at p 9 of the joint report, that she did not believe that the signage with the words 'DeiCorp' was consistent with the objective because it does not represent the principal residential use of the building, that is 67% of the total floor space. In her opinion the signage is a form of advertising for the commercial company named rather than the effective communication of the building's primary use. In coming to that opinion she relies upon the provisions in the DCP which expressly state that commercial names or advertising shall not be used for naming of residential or primarily residential buildings. Ms Williamson would like the name changed to 'Deicota' because that is the name of the apartments within the building. In her opinion the name 'Deicota' more effectively communicates and better identifies the primary use of the building.
Mr Ludvik disagrees. He says the signage provides a name for the building that reflects the principal user of the commercial office space in the building. In short it provides an appropriate identification of the site and the development within it. In his assessment the signage is consistent with the objectives in cl 3 of SEPP 64 including that of providing effective communication in suitable locations: cl 3 (1)(a)(ii). The content of the sign does not need to identify the principal tenant of the building under the SEPP 64.
Finding - cl 8(a) of SEPP 64
After consideration of the evidence, including the Court's inspection of the site and the public domain, I accept Mr Ludvik's assessment that this signage is consistent with the aims and objectives of the SEPP 64. In particular by reference to cl 3(1)(a) (ii) the signage provides effective communication in suitable locations of the name of the building.
I do not accept on the evidence, as Ms Williamson suggests, that the signage is advertising of a company name. In my assessment it is the business name of a commercial tenant within the building and that is all that is required under the SEPP. I am satisfied that the signage is, as required by cl 8(a), consistent with the objectives of the Policy.
Finding - Clause 8(b) of SEPP 64 - assessment criteria specified in Schedule 1 and cl 22 of the Major Development SEPP
According to the council's planning evidence, provided the signage is modified in accordance with condition 2(a)(1) and a solid perforated backing is installed behind the existing metal framework, the signage will not protrude and in that case it will satisfy the criteria in Schedule 1. As the Council raises no other issue about the signage in respect of the assessment criteria, subject to the imposition of the draft conditions, I am of the opinion that the backing as proposed in condition 2(a)(1) is appropriate based on the evidence of the Council and my viewing of the site.
While I appreciate the applicant's evidence that the backing may add some bulk to the signage, on balance it will serve to better integrate the signage with the building and preclude it from protruding above the building that is inconsistent with the criteria. Subject to that modification, I am of the opinion that the assessment criteria specified in Schedule 1 is satisfied by the signage and that the development is consistent with the objectives in cl 3.
It is also the case, subject to the imposition of the council's conditions as discussed, and based on Mr Ludvik evidence and my inspection of the locality, that the signage is compatible with the desired amenity and visual character of the area and is of a high quality design and finish. In forming that view I accept the planners' evidence that the level of illumination they observed during their night inspection (from the objectors' streets and the public domain) does not cause unacceptable loss of residential amenity (at page 11 of their joint report).
Furthermore, I am satisfied that the conditions, which are to be imposed on the consent, will adequately address the concerns raised by the residents and the criteria in Schedule 1. In particular, condition 6. It will control the level of illumination to ensure that there will be no objectionable glare or injury to the amenity of the neighbourhood. It requires the lighting to be designed, installed and used in accordance with the Australian Standard 4282 (1997), a standard that seeks to control the obtrusive effects of outdoor lighting. Conditions 6 (2) will ensure that the signs will not be animated or flash and be powered by renewable energy.
I have considered as required by cl 22 of Pt 5 of Sch 3 to the Major Development SEPP, the design excellence, against the matters in cl 22(2). Ms Williamson is of the opinion that the perforated backing achieves security against strong wind that is a relevant consideration under the DCP as a guideline called up by cl 22(4).
Having had regard to the matters in cl 22 (2) and the provisions of the DCP as guidelines as required by cl 22(4). I am satisfied that the development exhibits design excellence and therefore I have decided to grant consent to this development for building identification signage under cl 22(1).
Time limited consent for the development
The last matter in contention concerns the time limit proposed by the Council's draft condition 7. According to Ms Williamson the Council's general practice is to impose a time limit of three years on all signage under Council's control.
The planning basis of this is the DCP. However, under SEPP 64 there is no time limit for signage except in circumstances referred to in cl14 (2). Those circumstances are not presently applicable. Ms Williamson was asked whether a time limit on the consent might be appropriate to allow for an assessment of the impact of the illumination on the resident's amenity. However, in response to that question Ms Williamson agreed with Mr Ludvik that there is no issue with the proposed illumination subject to the conditions being imposed.
Understandably, the applicant opposes a time limit, for commercial reasons. The structure is intended to be permanent and SEPP 64 does not require such a time limitation for this type of signage.
Without a planning basis to justify the imposition of a time-limited consent, I do not choose to impose one.
CONCLUSION
For the above reasons I am satisfied that the signage as constructed is in this Business Zone - Commercial Core area under the Major Development SEPP 2005 is acceptable. The Court makes the following orders:
10459 of 2013:
(1) The appeal is upheld.
(2) Development application No D/2013/153 is granted for the display of four signs at 161 Redfern Street, Redfern subject to the conditions in Annexure "A".
10777 of 2013:
(1) The appeal is upheld.
(2) Council is directed to issue a building certificate for the signs following the modification as required by Condition 2 of the Development Consent D/2013/153 as ordered by the Court in proceedings number 10459 of 2013.
Susan Dixon
Commissioner of the Court
Decision last updated: 15 May 2014
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