Dexus Funds Management Limited v The Council of the City of Sydney

Case •

[2023] NSWLEC 1637

•

27 October 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Dexus Funds Management Limited v The Council of the City of Sydney [2023] NSWLEC 1637
Hearing dates: 27 September and 9 October 2023
Date of orders: 27 October 2023
Decision date: 27 October 2023
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No D/2022/1103 for the installation of a new illuminated top of building sign on the existing building, with dimensions of 2.78m (h) x 11.13m (w) at 25 Martin Place, Sydney is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All Exhibits are returned, except for Exhibits A, L and N.

Catchwords:

DEVELOPMENT APPLICATION – building signage – whether sign is a building identification sign – heritage conservation – effect of proposed development on local heritage significance – whether a significant tenant

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Standard Instrument (Local Environmental Plans) Order 2006

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3 ss 3.1 3.2, 3.6, Pt 3.3 ss 3.7, 3.11 3.19, Sch 5

State Environmental Planning Policy (No 64) – Advertising and Signage

Sydney Local Environmental Plan 2012, cll 5.10, 6.21C, Sch 5 cll 1, 2, 3, 4, 5

Texts Cited:

Australia International Council on Monuments and Sites, The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, October 2013

Sydney Development Control Plan 2012

Sydney Opera House, Utzon Design Principles, May 2002

Category:Principal judgment
Parties: Dexus Funds Management Limited (Applicant)
Council of the City of Sydney (Respondent)
Representation:

Counsel:
T To (Applicant)
J Lazarus SC (Respondent)

Solicitors:
Dentons Australia (Applicant)
Council of the City of Sydney (Respondent)
File Number(s): 2022/374568
Publication restriction: Nil

Judgment

  1. COMMISSIONER: A building originally designed by the noted Australian architect, Harry Seidler, and currently known as 25 Martin Place, occupies a site that runs between Sydney’s Martin Place, and King Street on Castlereagh Street (the site).

  2. The existing development comprises a 60-storey tower, prominently located at the corner of King Street and Castlereagh Street, a podium that extends to the north along Castlereagh Street towards Martin Place, the Theatre Royal fronting Lees Court and Rowe Street, and an external forecourt, or plaza, fronting Martin Place.

  3. The site has been the subject of substantial refurbishment and ‘renewal’, consistent with consent granted in 2015 (2015 consent) to development application D/2015/66 comprising partial demolition and substantial alterations and additions to the podium and basement levels, modification to vehicular access to the site, landscaping and public domain improvements.

  4. Development consent was also granted to development application D/2019/1219 on 28 February 2020 for signage on the site (2020 Consent).

  5. The Applicant in these proceedings, Dexus Funds Management Limited, now proposes an illuminated sign be erected at the top of the tower component of the complex that is the subject of development application D/2022/1103 (the DA).

  6. The DA was lodged with the Council of the City of Sydney (the Respondent), on 26 October 2022, and subsequently notified between 31 October to 15 November 2022. As the DA was otherwise undetermined, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction on 12 December 2022 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  7. In accordance with its usual practice, the Court arranged a conciliation conference between the parties on 11 May 2023, at which I presided. The parties did not reach an in-principle agreement and the conciliation was terminated, however the parties subsequently consented to me hearing the matter.

  8. On 18 August 2023, the Applicant amended the DA by Notice of Motion (amended DA), relying on amended plans and other documents consisting of:

  1. Architectural plans prepared by Woods Bagot dated 11 August 2023 (Exhibit A)

  2. Visual impact assessment prepared by Urbaine Design Group (Exhibit F)

  1. The proceedings commenced with an onsite view of the rooftop of the tower during which the approximate position and dimensions of the sign were marked by tape measure and height poles.

  2. At the onsite view, it was observed that the rooftop comprises two primary levels;

  1. a lower open area on which tracks for the Building Maintenance Unit (BMU) are located close to the parapet (the lower roof); and

  2. a higher terrace on which building services are located, including air handling plant, exhaust and the like (the rooftop plant).

A sign is proposed

  1. The proposed sign comprises the letters ‘RBC’, preceded by the logo of the Royal Bank of Canada (RBC), all of which is fixed to a mesh screen, supported on a steel frame.

  2. The Class 1 application filed with the Court (Exhibit L) records the overall dimensions of the sign to be 11.13m wide x 2.78m high.

  3. The architectural plans at [8(1)] depict the position of the sign in relation to the topmost parapet of the tower, and the elevated rooftop plant.

  4. While it is commonly held that signage is permitted with consent in the SP5 Metropolitan Centre zone, according to the Sydney Local Environmental Plan 2012 (SLEP), its permissibility is also subject to provisions contained in State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP), and by reference to certain provisions of the Sydney Development Control Plan 2012 (SDCP).

  5. For completeness, the objectives of the SP5 zone are:

•  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 that are 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, including public transport, walking and cycling.

•  To promote land uses with active street frontages within podiums that contribute to the character of the street.

•  To promote the efficient and orderly development of land in a compact urban centre.

•  To promote a diversity of commercial opportunities varying in size, type and function, including new cultural, social and community facilities.

•  To recognise the important role that central Sydney’s public spaces, streets and amenity play in a global city.

•  To promote the primary role of the zone as a centre for employment and permit residential accommodation and serviced apartments where the accommodation complements employment-generating land uses.

  1. The Industry SEPP defines the various signage types, and other terms relevant to this appeal, at s 3.2, as follows:

  1. Advertisement is defined as:

advertisement means signage to which Part 3.3 applies and includes any advertising structure for the advertisement.

  1. Building Identification sign is defined as:

building identification sign has the same meaning as in the Standard Instrument.

  1. I note the definition found in the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument) is:

building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services.

  1. Display is defined as:

display includes the erection of a structure for the purposes of display and the use of land, or a building on land, for the purposes of display.

  1. Roof or sky advertisement is defined as:

roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.

  1. Signage is defined as:

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 3.3 applies,

but does not include traffic signs or traffic control facilities.

  1. It is relevant to note here that the SDCP adopts certain definitions that vary from those found at s 3.2 of the Industry SEPP, however parties find similarities between them.

  2. The Respondent submits that as the sign is located above the parapet of the tower, the sign is appropriately characterised as a ‘roof or sky advertisement’ in terms consistent with the definition at [16(4)], that might otherwise be known as a sky sign as depicted on Figure 3.22 of the SDCP as re-produced below:

  1. If characterised as such, Pt 3.3 of the Industry SEPP applies and the grant of consent is precluded by the terms of s 3.19(1) of the Industry SEPP that relevantly provides:

(1)  The consent authority may grant consent to a roof or sky advertisement only if—

(a)  the consent authority is satisfied—

(i)  that the advertisement replaces one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed, or

(ii)  that the advertisement improves the finish and appearance of the building and the streetscape, and

(b)  the advertisement—

(i)  is no higher than the highest point of any part of the building that is above the building parapet (including that part of the building (if any) that houses any plant but excluding flag poles, aerials, masts and the like), and

(ii)  is no wider than any such part, and

(c)  a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct and the display of the advertisement is consistent with the development control plan.

  1. As the proposed sign does not replace one that exists, does not improve the finish or appearance of the building, is above the building parapet and for which there is no separate development control plan in force for signage in the area, ssubs 3.19(1)(a), (b) and (c) of the Industry SEPP serve to prohibit the grant of consent.

  2. Instead, the Applicant characterises the proposal as a building identification sign that the Applicant submits will, should the Court be minded to grant consent, result in the tower being known as the ‘RBC Tower’. As such, the definition of a building identification sign would be met in as much as it would firstly identify or name a building and secondly, do so in manner that includes a logo but does not include general advertising of products, goods or services.

  3. If the sign is found to be a building identification sign, the Applicant submits that the provisions of s 3.7(1)(b) of the Industry SEPP exclude operation of those aspects of Pt 3.3 of the Industry SEPP held by the Respondent to apply to signage defined as Advertisements.

  4. For clarity, s 3.7 of the Industry SEPP is within Pt 3.3 and is in the following terms:

(1)  This Part applies to all signage to which this Chapter applies, other than the following—

(a)  business identification signs,

(b)  building identification signs,

(c)  signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it,

(d)  signage on vehicles.

  1. Section 3.16 of the SDCP deals with Signs and Advertisements, with the relevant objectives as follows:

“Objectives

1) To recognise the City of Sydney council area as a globally competitive city with a strong retail sector and promote innovative, unique and creative signs that support retailers and show design excellence.

(2) To recognise that well designed and located signs can have a positive effect on the economy of the City of Sydney council area.

…

(4) To promote signage that demonstrates design excellence and contributes positively to the appearance and significant characteristics of buildings, streetscapes and the city skyline.

(5) To deliver coordinated and site-specific approaches to signage that respond to, complement and support the architectural design of a building and any heritage significance.

…

(10) To encourage and provide opportunities for innovative, unique and creative signs.

…”

  1. If the sign is a top of building sign according to Figure 3.22 of the SDCP, as the Applicant submits, Section 3.16.5.2 of the SDCP applies and relevantly provides:

“(1) Unless provided for in a signage precinct in Section 3.16.12 (Signage precincts), a building identification sign should not be higher than 15m above the existing ground level or the top of any existing parapet, whichever is lower, unless the sign is for a building on land zoned B8 Metropolitan Centre or B3 Commercial Core.

(2) Sky signs and other roof signs that project vertically above the roof of a building are not permitted.

(3) Top of building signs are not permitted on heritage items, except where the consent authority is satisfied that the sign is compatible with the heritage significance of the building.

(4) Top of building signs are permitted to incorporate the registered name and a logo of the building or development.

(5) Top of building signs are only to be allocated to a significant tenant of the building or to the building’s owner, if the owner occupies a significant amount of floor space within the building relative to other tenants or there is an exceptional circumstance where the owner has owned the building for over 50 years and can demonstrate an historically significant association with the building. Signs must be removed within three months of the relevant circumstances changing.

…

(8) Top of building signs are, in the opinion of the consent authority, to achieve a high degree of integration and compatibility with the architectural design, materials, finishes and colours of the building.

(9) Top of building signs are to have a maximum vertical height equivalent to one typical floor of the building.

(10) The display area of a top of building sign is to be orientated at right angles to the ground.

(11) Top of building signs are to comprise of individual raised letters, numbers or symbols affixed directly to the building with a concealed static light source. Light boxes and variable content displays are not permitted as top of building signs.

(12) The illumination of top of building signs is to comply with the requirements of Section 3.16.4 (Illuminated signage). The illumination is to be powered by a renewable energy source(s) in accordance with clause 3.16.4(6) of this DCP.

…

(14) Development consents for top of building signs are to be limited to 5 years. Applications for renewal in the form of a Section 4.55 Modification Application to modify the original consent or a new development application can be lodged up to 6 months before the expiration of a development consent.

…”

  1. The site is identified in the SLEP as an item of heritage significance at a local level. As such, the provisions of cl 5.10 of the SLEP apply.

  2. I note here the heritage listing for the site, known as the ‘MLC Centre Complex’ including buildings, plazas, and art identified in the item name in Sch 5 of the SLEP (Exhibit J) includes:

“(i)  tower exterior, internal structure and level 8 vestibule,

(ii)  Theatre Royal exterior and interiors,

(iii)  Commercial Travellers Association building exterior and interiors,

(iv)  King Street cylindrical structure,

(v)  lower plaza on level 7 and upper plaza on level 8,

(vi)  plaza oculus to level 6,

(vii)  levels 6 and 7 Rowe Street through link,

(viii)  artworks by Albers, Perry and Owen

…”

  1. As the site is listed as an item of local heritage significance, Section 3.16.11 of the SDCP also applies in the following relevant terms:

“(1) Prior to development consent being granted for signage related to a heritage item or conservation area, the consent authority may require a heritage impact statement and signage strategy is to be prepared. The signage strategy is to incorporate all existing and future signage and have regard to all relevant policies and recommendations of any Conservation Management Plan and/or heritage inventory report.

…

(3) New signage is to be compatible with the heritage significance of the conservation area or the item, including the built form architectural style and existing signage. Signage is to be appropriately located to prevent significant components or distinguishing features of heritage buildings from being obscured.

(4) The design, style, materials, colours, images and lettering of new signage shall be high quality and consistent with the relevant heritage style and period, such as bronze, brass and stainless steel. Plastics, such as coloured or clear acrylic, are only to be used as an ancillary material. Corporate branding and colour schemes are to be modified to fit in with the character and significance of the area or item.

(5) The construction and installation of new signage is to be high quality and undertaken in a reversible manner that does not damage significant fabric of heritage items. Where signage is attached to stone or brick walls, it is to be attached with non-corrosive fixings to mortar joints rather than to the stone or brickwork. Projecting and cantilevered signage is to use a bracketed system that avoids bulky structural components attached to the stone or brick work.

…

(9) New internally illuminated signage is only permitted where:

(a) it is a reconstruction of an original significant sign;

(b) it can be demonstrated that internally illuminated signage is an important aspect of the heritage significance of the heritage conservation area or item; or

(c) the illumination is low voltage and visible through cut out lettering in high quality metal consistent with the heritage significance.

…”

The contentions are distilled

  1. In the Amended Statement of Facts and Contentions (ASOFAC) prepared by the Respondent (Exhibit 1), the contentions may be broadly summarised as follows:

  1. The sign will adversely affect the heritage significance of the site in accordance with cl 5.10 of the SLEP, and fails to exhibit design excellence pursuant to cl 6.21C of the SLEP.

  2. The sign fails to comply with the provisions of, firstly;

  1. Chapter 3 of the Industry SEPP, and

  2. The SDCP.

  1. For the reasons stated at [14], it is necessary to establish the type of signage that is the subject of the amended DA, as controls vary according to the various signage types.

  2. However, I will first set out the evidence of the heritage experts as to the heritage significance of the development.

Heritage significance is considered

  1. The heritage joint expert report (Exhibit 5) was prepared by Mr Tony Smith on behalf of the Respondent, Ms Fiona Binns on behalf of the Applicant and Mr John Aspinall, also on behalf of the Applicant in the field of visual impact analysis.

  2. According to the ASOFAC (Exhibit 1), the authorship of Mr Harry Seidler is a key aspect of the sites’ heritage significance. The heritage experts agree the development on the site is historically significant and rare as the first private development in central Sydney to provide a wide range of useful amenity and cultural assets to the general public, and that it is an outstanding example of Modernist architecture and urban design.

  3. The experts also agree that the location of the sign as now proposed means there is no visual impact on views within a radius of 545m, depending on the particular elevation of the viewer.

  4. Mr Smith regards the topmost parapet of the tower, and its clean silhouette when viewed against the sky as fundamental to the ‘crystal clear sculptural form’ of the building so emblematic of Mr Seidler’s work.

  5. The tower form has never had signage applied to it or installed on the rooftop, and the proposal will be seen from vantage points around the city, above the topmost parapet. When viewed from certain locations to the east and west of the site, the sign will be seen against sky and not against the backdrop of the rooftop plant.

  1. Mr Smith cites texts by architectural historians that record Harry Seidler’s opposition to signage on buildings designed by him. Extracts from those texts are contained in the Supplementary bundle of documents tendered by the Respondent (Exhibit 3, Tab 5).

  2. In an extract re-produced at folio 96, an exchange is recorded in which the following is attributed to Mr Seidler:

“… about a week earlier Seidler had told Hornery, who wanted to put a sign on the top of the MLC building, ‘No way in hell, over my dead body … forget it, get out of here, man.”

  1. A letter signed by Mr Greg Holman (Exhibit H) is also the subject of submissions as it is said to contain statements from Harry Seidler & Associates as to the degree of support or otherwise of the proposal.

  2. The Court granted leave for Mr Greg Holman to provide oral evidence and be subject to cross examination via AVL.

  3. A summary of Mr Holman’s oral evidence may be summarised as follows:

  1. Mr Holman has worked in the architectural practice of Seidler & Associates for 43 years, and the quote attributed to Harry Seidler at [38] is, according to Mr Holman, accurate.

  2. The fashion of the time was for signage in the form of “plastic boxes” adhered to the façade of buildings.

  3. Seidler & Associates does not object to the proposal in its current form, and would also not object to a condition of consent that requires consultation with Seidler & Associates during design development, should consent be granted.

  4. That said, it remains the case that Harry Seidler was strongly opposed to signage being applied to his buildings, and no provision had been made in the original design of the tower for signage on or above it.

  1. Mr Aspinall prepared a visual impact assessment (Exhibit F) that includes photomontages from four locations, described as follows:

  • The Level 7 plaza,

  • From the bottom of the steps of the site that leads to Martin Place,

  • The other side of Martin Place, opposite the steps of the site, and

  • The corner of Martin Place and Castlereagh Street, next to the Commonwealth Bank Building.

  1. The experts agree that the proposed sign is not visible from the above locations.

  2. Mr Smith regards the analysis completed by Mr Aspinall as deficient as there are no views in which the sign is visible. As it is put by the Respondent, this means the Court does not have the benefit of an assessment of the visual impact of the sign from location where the sign would be viewed, such as from the eastern side of Farm Cove, Embarkation Park and Pyrmont. Photographs from these locations are relied on by the Applicant (Exhibit K), absent the sign.

  3. Mr Aspinall concedes the visual impact assessment is lacking in representing distant views, however it was prepared in accordance with the brief provided to him by the Applicant.

  4. Mr Smith has provided an image at Figure 5 of the joint report that confirms the sign will be visible in intermediate and distant views from the north east, north and north west.

  5. However, Mr Aspinall asserts Figure 5 appears to be generated by use of the City of Sydney 3D model which is a simple block model, with insufficient detail in respect of existing signage on surrounding buildings and certainty in relative levels or verification as to its accurate placement.

The sign is a building identification sign

  1. The Court was assisted in considering the nature of signage proposed with evidence from town planning experts, Mr Robert Chambers on behalf of the Applicant, and Ms Mia Music, on behalf of the Respondent who conferred in the preparation of a joint expert report (Exhibit 4).

  2. Ms Music is of the view that, notwithstanding examples of signage atop buildings in the Sydney CBD proffered by Mr Chambers in Annexure F of the joint expert report, only one other appears on a building listed for its heritage significance and regardless, the architect of the subject building, Harry Seidler, did not support such signs and no building designed by him or his office, Seidler & Associates, bears one.

  3. Whether that is the case or not, Mr Chambers states all signage depicted on developments at Annexure F were characterized at the time of consent as building identification signs; a proposition further supported by assessment reports and conditions of consent for a number of those developments contained in Annexure F, collated by the Applicant (Exhibit M).

  4. Ms Music considers those signs in Exhibit M to be building identification signs because they are located below the parapet and are well integrated into the building, so cannot be characterised as a sky sign or advertisement.

  5. This is distinct from the signage proposed here, which projects vertically above the roof of the tower building, contrary to Section 3.15.5.2(2) although Ms Music agrees, not above the top of the rooftop plant.

  6. Mr Chambers was taken to a bundle prepared by the Respondent, (Exhibit 8) containing reproductions of websites advertising commercial developments in the Sydney CBD, not by a recognised building name, but by their address.

  7. When this bundle is read in conjunction with the developments identified by Mr Chambers in Annexure F of the joint report, the Respondent argues not one of the developments identified by Mr Chambers is known by the name of the signage affixed to it.

  8. Whether this is the case or not, the relevance of the Respondent’s argument appears to be found in the submission that naming a building can only be founded in a contractual arrangement about which the Court has no evidence in this matter.

  9. However, the Respondent’s argument appears to rely heavily, if not solely, on a series of not more than realty websites that appear directed to attracting tenants to sites in the CBD, albeit by reference to a street address and not by reference to a particular building name.

  10. In circumstances where a property owner or leasing agent seeks tenants, it would appear reasonable to assume that it is the features and benefits of those sites that are being promoted, and not terms as to naming or identifying the site which, in a number of instances, appears to already be settled.

  11. In any event, there is nothing to be derived from the Industry SEPP, or the SDCP that would limit the definition of a building identification sign to one that only names or identifies a building if it is permitted by the terms of a contractual arrangement to do so. There is no test to that effect required of a consent authority or the Court, which supports the Applicant’s submission that it is the planning purpose, and not the commercial exchange, to which the Court is directed.

  12. In the case of the subject site, Mr Chambers explained the chronology and effect of the 2020 consent which, in summary, involved a change in name for the site, from ‘MLC Centre’ to ‘25 Martin Place’, which Mr Chambers describes as a convenient means of consolidating reference to a site otherwise bounded by 5 streets and lanes.

  13. Mr Chambers believes this supports his view that 25 Martin Place is an address, and not an identified building or site name. The tower, plaza and indeed the Theatre Royal, share an address at 25 Martin Place. Where there is signage to that effect, it is in the Level 8 lobby, but not in the form of a top of building sign on the tower.

  14. The signage currently on the site comprises wayfinding signage in the podium, described and depicted in the 2020 Consent (Exhibit 3, Tab 3), that may require modification sometime in the future, should the Court be minded to uphold this appeal, but is otherwise silent on signage for the tower component.

  15. Section 3.6 of the Industry SEPP deals with signage generally and precludes the grant of consent for signage unless the consent authority, or the Court on appeal, is satisfied that the signage is consistent with those objectives set out in s 3.1(1)(a) (s 3.6(a)), and that the signage the subject of the application satisfies the assessment criteria specified in Sch 5 (s 3.6(b)).

  16. The Respondent submits that the particular variant of satisfaction required of the Court by s 3.6(b) of the Industry SEPP in respect of signage generally is a lesser kind of satisfaction than the satisfaction required of the Court by s 3.11, should the signage be deemed an advertisement.

  17. In short, s 3.6(b) of the Industry SEPP establishes the relevant test of satisfaction as being one in which the Court must be satisfied that the signage the subject of the application satisfies the assessment criteria specified in Sch 5 whereas the test set out at s 3.11(1)(b) is merely one where the Court must be satisfied that the proposed signage is acceptable in terms of its impacts when assessed against the assessment criteria in Sch 5.

  18. I find the proposed sign is a building identification sign for the following reasons:

  1. Firstly, the sign answers the description of the definition in the Standard Instrument, being the definition adopted by the Industry SEPP. In particular I note the definition does not rely on the building being named in a certain way, but may also merely identify a building. In this case, RBC may be regarded as either a name or an identifier of the tower.

  2. Secondly, the sign does not include general advertising of products, goods or services. The sign may be, as the Respondent submits, identical to “the logo on a company letterhead”, but even if that is the case, a company name and logo does not, in my view, constitute advertising of a product, goods or service.

  3. Thirdly, as stated at [11], the sign features the text ‘RBC’ and a logo. This is entirely consistent with the definition at [16(2)], and is not defined otherwise because, as it is put by Ms Music in par 3.2.3.1(b)(a.), the sign does not feature a street name or number. As is made clear in the definition, these are aspects that may be included in a building identification sign, the absence of which does not alter the fact that the proposal names or identifies the building.

  1. As the sign is a building identification sign, the grant of development consent is contingent upon the Court being satisfied that the signage proposed is consistent with the objectives at s 3.1(1)(a) of the Industry SEPP, and satisfies the assessment criteria specified in Sch 5 of the Industry SEPP.

  2. Relatedly, consideration of those aspects of Pt 3.3 of the Industry SEPP is not necessary for the reasons set out at [22]-[23].

  3. In the first instance, the objectives at s 3.1(1)(a) are as follows:

(1)  This Chapter 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

…

  1. Ms Music believes the proposal is incompatible with the desired amenity and visual character of the area due to the adverse impacts on the visual quality of the tower and, in essence, because the tower does not, and has never had, a sign installed on or above it.

  2. Similarly, the proposal does not achieve a high quality design or finish when the terms of cl 6.21C of the SLEP are considered, which again, Ms Music views as inappropriate due to the building type and location (subcl (2)(a)), being a heritage item designed by Harry Seidler and where the form of the proposal will not improve the quality and amenity of the public domain (subcl (2)(d)(x)).

  3. The basis of Ms Music’s opinion, stated in par 3.2.3.1(a) of the joint report, is that the proposal is for a roof or sky advertisement, when the definition of a ‘building identification sign’ under the now repealed State Environmental Planning Policy No 64 – Advertising and Signage (Repealed SEPP) is read. For the reasons stated at [65(3)], I do not share Ms Music’s reading of the definition in the Industry SEPP, and I do not consider any weight is owed to the former definition in the now Repealed SEPP.

  4. I also do not understand the provisions of the EPA Act, Industry SEPP, or the SDCP to state that merely because a building has not had a sign, disqualifies a building from having one. To the extent it is relevant, I note Mr Holman’s evidence at [41(3)] is that Seidler & Associates have no objection to the proposal, despite the building not having one originally.

  5. I am also assisted by a statement authored by Mr Domenico Alvaro, of architectural practice Woods Bagot, in respect of design excellence (Exhibit B) that addresses the provisions of cl 6.21C of the SLEP. Having considered the proposal, the expert evidence and Mr Alvaro’s statement, I have formed the following opinion:

  1. The proposal achieves a high standard of architectural design, materials and detailing appropriate to the building type and location by selecting materials suited to a top of building sign that is to be illuminated, and where its placement avoids damage to fabric identified as important to the heritage values of the site, and where the parties agree fixing signage to the façade of the tower is wholly inappropriate. While the materials proposed are not those sought by provision (4) of Section 3.16.11 of the SDCP, and the corporate branding and colour scheme has not been modified, in my view, the provision seeks to address the design of signs that are located closer to ground level where proximity of the viewer to the signage and the item of heritage being observed by the viewer, where the nuance of materials, details and colours can be better appreciated than atop what was described as “the second tallest building in the city”.

  2. In having regard to the form and external appearance of the proposal, I consider it relevant that the sign is agreed to be fully visible at a distance of 1.3km from the site, at which point the contribution of the sign to the quality and amenity of the public domain is neutral. In forming this opinion, I note the scale of the rooftop plant, and other plant such as the BMU, that are visible in Exhibit K, assist the Court in evaluating the bulk and scale of the proposal relative to those existing features visible in the images. Where the sign is visible from distant locations such as Farm Cove, Embarkation Park and Pyrmont, it is clearly a side-on view that would so minimise the bulk, scale and even illumination as to be absorbed into the constellation of colour and light within the city skyline.

  3. As the sign is located in close proximity to the rooftop plant, I accept that the sign does not impact view corridors.

  4. When the setback and scale of the proposal is understood, it is my considered view that the sign does not compromise the heritage values of the site. It would join a multitude of other building identification signs in the CBD to which the site is suited, and complements the uses and use mix on the site. I accept Ms Binns’ opinion that there is sufficient separation between the sign and the tower form, and is proposed to be installed in a manner that allows removal or renewal over time without damage to heritage fabric. Put another way, I accept and adopt Ms Binns’ opinion that, as a top of building sign, the proposal achieves a high degree of integration and compatibility with the architectural design, materials, finishes and colours of the building by, in this case, remaining distinct, separate and setback from the distinctive features of the tower form. As such, provisions (4) and (5) of Section 3.16.11 of the SDCP are achieved.

  5. The sign is not seen from any vantage point where the tower, podium, plaza, or any other component of the development on the site is seen in context with its streetscape, and not from anywhere the existing development is viewed as a whole. Instead, the sign is visible from such a distance that the development is obscured or disambiguated to varying degrees, and where the contribution made by the sign to that view is diminished.

  6. The sign does not result in shadow beyond the tower itself, does not compromise the principles of ecologically sustainable development, and does not impact pedestrian, cycle or other mobility networks in any way.

  1. For the reasons set out above, I conclude the development the subject of the development application applies, exhibits design excellence, is compatible with the desired amenity and visual character of an area, and is of sufficiently high quality design and finish given the purpose and function of the proposed sign, that is subject to the elements. As such, the proposal achieves the objectives at s 3.1(1)(a) of the Industry SEPP.

  2. In the second instance, the assessment criteria at Sch 5 of the Industry SEPP is:

Schedule 5 Assessment criteria

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?

…

  1. In respect of character at s 1 of Sch 5, I find the proposal compatible with the existing character of the site, given the sign is simply not visible from within, around, or in the vicinity of the site. Further distant from the site, the sign is compatible as it joins the constellation of similar illuminated signage within the SP5 Metropolitan Centre zone. Furthermore, I accept Mr Chambers’ view that the following objectives of the SP5 zone describe, to some extent, the desired future character of the zone:

•  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.

…

  1. Likewise, to the extent the objectives of the signage section of the SDCP at section 3.16 of the SDCP assist in shaping the desired character of the area, in my view the proposal achieves objectives at objectives (2) and (4) of the SDCP that are in the following relevant terms:

“…

(2) To recognise that well designed and located signs can have a positive effect on the economy of the City of Sydney council area.

…

(4) To promote signage that demonstrates design excellence and contributes positively to the appearance and significant characteristics of buildings, streetscapes and the city skyline.”

  1. The sign is not inconsistent with, or antipathetic to, the objectives above and so I find it is also compatible with the desired future character of the area.

  2. I understand from the parties that the Special Areas invoked by s 2 of Sch 5 is not applicable to the proposal.

  3. For the reasons set out at [73(5)], I find the views and vistas cited at s 3 of Sch 5 are not obscured or compromised by the proposal, and as stated at [73(2)], the sign cannot, in my view, dominate the skyline at daytime or night time because of the scale at which it is viewed when it is visible, and where it is viewed in context with the rooftop plant that, by any estimate, does not rise to the same degree of heritage significance as that of the tower form it is largely separated from by virtue of its setback.

  4. In respect of s 3 of Sch 5, and to the extent the tower form is viewed within the setting of the city skyline, the scale, proportion and form of the proposal is appropriate to the setting because of the setback from the parapet to the tower, which serves to conceal the sign within a radius of around 545m, subject to topography, obscuring buildings and other factors.

  5. When the sign is viewed, it is predominantly seen against the backdrop of the rooftop plant, or adjacent to the BMU, but when viewed side-on the sign would, because of its physical dimensions, diminish in the eye of the viewer. In this way, the sign partly screens the unsightliness of the rooftop plant and BMU, which is a question found in s 4 of Sch 5. As to whether the proposal reduces clutter by rationalising and simplifying existing advertising, I regard the question as irrelevant given no advertising exists to which consideration can be directed.

  6. Section 5 of Sch 5 deals with the site and building. For the reasons stated earlier, the proposal is compatible with the scale, proportion and other characteristics of the building. In part, this is because of the respect shown to the ‘crystal clear sculptural form’ of the tower by the setback of the sign from the perimeter and which is innovative to the extent that the proposed sign does not strictly conform to either a top of building sign or sky sign as depicted in Figure 3.22 of the SDCP at [17] because the sign is not directed affixed to the rooftop plant, as is the top of building sign in Figure 3.22. Nor is it wholly free standing as is the sky sign in Figure 3.22. Instead, the sign is supported on a steel frame, fixed to a concrete plinth on which the rooftop plant stands. In this way, I regard the proposal consistent with the objective (5) at Section 3.16 of the SDCP, which seeks “coordinated and site-specific approaches to signage that respond to, complement and support the architectural design of a building and any heritage significance.” Relatedly I also find the proposal consistent with provision (3), section 3.16.11 which deals with signage on heritage items in the following terms:

“(3) New signage is to be compatible with the heritage significance of the conservation area or the item, including the built form architectural style and existing signage. Signage is to be appropriately located to prevent significant components or distinguishing features of heritage buildings from being obscured.”

  1. Provision 7 deals with illumination which I regard as reasonable given the height at which the signage is proposed, and where conditions of consent are proposed that address intensity, period of intermittency and hours of illumination of the sign, the maximum night time luminance and hours of operation (Condition 7).

  2. For the reasons stated above, I am satisfied that the proposal achieves those objectives set out in s 3.1(1)(a) of the Industry SEPP, and that the signage the subject of the application satisfies the assessment criteria specified in Sch 5. Accordingly, I am satisfied in respect of the matters about which the Court must be satisfied at s 3.6 of the Industry SEPP.

  3. However, as stated at [24]-[28], there are objectives and provisions contained in the SDCP that the Court must take into consideration. A particular dispute is whether the signage may be allocated to a tenant that the Respondent contends cannot be described as a ‘significant tenant’.

Is RBC a “significant tenant”?

  1. Section 3.16.5.2(5) of the SDCP limits the allocation of a top of building sign to a significant tenant, or a building owner.

  2. The Respondent submits that RBC is not a significant tenant when the extent of its floor space in the building is understood.

  3. To this end, the Respondent sought particular documents by the issue of a notice to produce (Exhibit 7) upon the Applicant. The documents were tendered on the second day of the hearing (Exhibit N).

  4. Ms Music’s written evidence is that as RBC occupies only 3% of the floor space available in the tower, such a minor percentage of the tower floor space cannot qualify RBC as a ‘significant tenant’. When the extent of lease area is understood, six other tenants in the building occupy a greater amount of floor space. However, at the time of that assessment, Ms Music was not in possession of the information contained in Exhibit N.

  5. The Applicant submits that, absent any definition in the SDCP, the amount of floor space is only one measure of identifying a ‘significant tenant’ that may otherwise be identified by fame or status, duration of lease or any other measure.

  6. As the terms of RBC’s lease extends until 2032, with certain options thereafter, a lease of such duration is a reasonable ground for deeming RBC a significant tenant.

  7. I accept the Applicant’s submission that, absent any further definition or description as to the means by which a ‘significant tenant’ may be identified, a lease extending almost 20 years in duration, subject to options being exercised, by a tenant occupying an area of floor space agreed to be the 7th largest may be so described.

  8. I am also assisted by a statement prepared by Mr Chambers (Exhibit C) explaining that RBC occupies floor space measuring an area of 2083m2, where the average tenancy is only 702m2.

  9. The provision at Section 3.16.5.2(5) does not seek the tenant to be the most significant, but merely to be ‘significant’. I accept that, for a leasing agent or building owner seeking to attract tenants, this may also embrace concepts such as the corporate prestige of the tenant who may have a particular reputation in the market that is unrelated to floor space.

Impediments to the grant of consent are not impediments

  1. In closing submissions, the Respondent submitted three grounds by which the Court was precluded from the grant of consent. I will briefly explain why I do not consider these grounds to be impediments to the grant of consent.

No contract to assign naming rights to the building

  1. The Respondent contends that a building identification sign cannot be so defined unless and until evidence of a contractual arrangement in respect of naming rights is provided to the Court.

  2. The Applicant submits there is no basis in environmental planning law for such an assertion. The Amended DA describes the development the subject of the development application, in relation to which the Court brings its attention to certain provisions of those environmental planning instruments before the Court.

  3. In her oral evidence, Ms Music acknowledges the Respondent does not retain a register of building names, and does not require a separate application for a change in building name. As such, the Applicant submits there is no procedure beyond seeking consent for a building identification sign that gives effect to the naming of a building.

  4. Commercial arrangements that sit behind the consent sought by the Applicant are not properly considered a planning matter.

Modification is not a barrier

  1. The Amended DA must seek to modify the terms of the 2020 Consent for which consent was granted for the purpose of signage that is now sought to be varied by a change to the signage strategy.

  2. As stated at [61], the terms of the 2020 Consent are primarily focused on wayfinding signage on the podium of the development on the site. There is no provision for a building identification sign at the top of the building the subject of the Notice of Determination, conditions of consent or the supporting signage strategy.

  3. Even a cursory read of the 2020 Consent is sufficient to accept the Applicant’s submission that only the 2020 Consent may require modification, should the Court grant consent to the Amended DA before the Court, but that the Amended DA does not, of itself, propose the modification of an existing consent.

Visual assessment and design development is not an impediment

  1. The Respondent contends that the Court is unable to bring proper consideration to the development the subject of the development application absent further and better visual impact assessment and while the final structural frame bearing the sign is subject to further development.

  2. The Respondent contends that visual assessment in Exhibit F is inadequate as it is from locations at which the sign cannot be seen. With respect, I understand that is the point the Applicant seeks to make in the visual assessment. That is, that a building identification sign atop a heritage item is not visible in the immediate vicinity of the heritage item. The visual assessment is not absent the sign, but is depicted in the ‘Alignment Wireframe/point cloud images (Exhibit F, folio 32-33), being concealed by the form of the tower.

  3. Next, the Respondent submits the Court does not have a visual assessment undertaken at night time. While regrettable that the Applicant, a large property fund, has not provided a night time assessment, whether the image prepared by Mr Smith at Figure 5 of the joint report, or the images at Exhibit K are consulted, the scale of the sign can be approximated by reference to the rooftop plant and , whether illuminated or not, is so limited in proportion when compared to other signs evidence on surrounding buildings, that I consider the material provided to be sufficient for consideration to be given to the impact of the sign during daytime and night time conditions can be understood.

  4. Finally, the Respondent identifies that the structural frame has been amended from that originally shown prior to the amendments at [8], without certification from a structural engineer and where further amendment is likely, given the Applicant proposes a condition of consent to require design development to be undertaken in consultation with Seidler & Associates.

  5. The structural frame is subservient in form and scale to that of the sign. Design development is a necessary stage in any development for which consent is sought, and is always expected to occur within the terms of the consent so as not to depart from the terms of that consent, unless modification of the consent is sought.

Conditions of consent

  1. In accordance with the Court’s usual directions, the parties filed without prejudice conditions of consent, should the Court be minded to grant consent.

  2. The Applicant accepts the conditions proposed by the Respondent (Exhibit 6), but for two conditions that I will briefly deal with.

  3. Firstly, in its preferred form of the conditions (Exhibit G), the Applicant seeks to amend the time for which the consent operates. The Respondent seeks to impose a condition it says is a standard condition of five years. The Applicant seeks to tie the duration of the consent to the lease cited at [92].

  4. However, for reasons similar to those at [100], I consider the commercial arrangements that sit behind the consent sought by the Applicant to be other than a planning matter and so find no reason to link the duration of consent for the sign to the commercial arrangements between the Applicant and RBC.

  5. Secondly, the Applicant seeks to insert a provision requiring the Applicant to consult with Seidler & Associates on the steel support structure prior to the construction certificate being sought. For the reasons stated at [108], I consider such a condition commonplace where new works are proposed to a heritage item and where the original author, or an agent of the original author, is in practice. The Applicant’s preferred form of Condition 12 is adopted.

Conclusion

  1. The development once known widely as the ‘MLC site’, now known as 25 Martin Place, and proposed to be known, perhaps, as RBC Tower, is not a historical relic preserved in aspic but a development that has been substantially remodelled following the 2015 Consent.

  2. The podium and plaza, neither the subject of these proceedings, have been radically transformed.

  3. The proposed sign is an addition to the development, not conceived as a part of the original development. However, the same may be said of much of the redevelopment the subject of the 2015 Consent.

  4. The sign does not need to demonstrate an association or integration with the tower to be deemed to have an acceptable impact on the heritage values of the heritage item. Instead, it is the effect or impact of the sign as proposed on the heritage item that is to be taken into consideration by cl 5.10(4) of the SLEP.

  5. The Respondent argues that the tower has never had signage, and in all likelihood, Mr Seidler would not have supported signage; then or now. Mr Smith notes the proposed sign is not consistent with the principle set out in the Australia International Council on Monuments and Sites’ Charter for Places of Cultural Significance 2013 to “do as much as necessary, but as little as possible” and considers the work to be “deliberate, emphatic and complete” as is.

  6. In summary, the sign does not compromise the legibility of the architectural form, or original intent of the architect for the reasons that follow:

  1. Firstly, the setback of the sign on the rooftop is such that the sign and its structure is not viewed by a viewer standing in, around or close to the site when the entire development is viewed as a whole, to the extent this is possible.

  2. Secondly, the setback and design of the support structure serves to separate the sign from the built form that is acknowledged by Mr Smith as the primary form from which the heritage values derive; that is, the white quartz façade of the tower, and not the roof top plant that sits above.

  3. Thirdly, because the distance at which the sign is visible has the effect of diminishing the scale and prominence of the sign to the degree that it is read as a part of the city skyline, and not in a way that dominates or diminishes the built form of the tower.

  4. Fourthly, while I note the care taken by the heritage experts to consider the integrity of the built form as it exists today, and the attribution that descends from that to the authoring architect, Harry Seidler, I do not accept the proposition that the absence of a sign in the original design necessarily precludes a sign today. Invoking the words of Mr Holman in this respect, the proposal is not for a ‘plastic box adhered to the façade’ of the tower, but one that is elevated, and distinct from the recognisable form of the existing development.

  5. Fifthly, I accept Ms Binn’s argument that the sign is also reversible. Put another way, the sign can be removed, or changed in the future without any physical impact whatsoever on the built form of the tower itself.

  1. In arriving at this conclusion, it seems appropriate to invoke another iconic work of architecture, the Sydney Opera House. When works to refurbish or upgrade the Sydney Opera House were contemplated around the year 2000, the original architect, Mr Jorn Utzon wrote to the Chair of the Sydney Opera House Trust. The text of this letter was later incorporated into a document titled ‘Utzon Design Principles’, published by Sydney Opera House in 2002.

  2. In his letter, Utzon addresses the potential for changes to the Opera House as follows, and in terms that may appear apt:

“…The ideas as they were developed in the sixties, evolved as the result of the needs and technique at the time. As time passes and needs change, it is natural to modify the building to suit the needs and technique of the day. The changes, however, should be such that the original character of the building is maintained.” (p 48)

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development Application No D/2022/1103 for the installation of a new illuminated top of building sign on the existing building, with dimensions of 2.78m (h) x 11.13m (w) at 25 Martin Place, Sydney is determined by the grant of consent, subject to conditions of consent at Annexure A.

  3. All Exhibits are returned, except for Exhibits A, L and N.

T Horton

Commissioner of the Court

Annexure A

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Decision last updated: 21 November 2023

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