Fadu P/L v Corporation of the City of Noarlunga No. Scgrg-97-1257 Judgment No. S6468

[1997] SASC 6468

FADU PTY LTD v CORPORATION OF THE CITY OF NOARLUNGA

Matheson J

Fadu Pty Ltd ("the appellant") sought provisional development plan consent from the Corporation of the City of Noarlunga ("the Council") for a development comprising, inter alia, the display of four flag signs on land at 52 Babbacombe Drive, Moana.  The Council refused the application and gave the following reasons:

".      Impact on the amenity of the locality;
         Metro Adelaide Objectives 41, 53, 54, Principles 35, 36
Noarlunga (City) Objective 17
.        Proliferation and number of signs
         Noarlunga (City) Objectives 18, 19 Principles 128, 133(d)
.        Equity of exposure
Noarlunga (City) Objective 20
.        Distraction of drivers
Metro Adelaide Principles 43, 47."

The appellant appealed to the Environment Resources and Development Court.  A Commissioner of that Court dismissed the appeal and the appellant now appeals to this Court. 

The Commissioner inspected the subject land, and described it as follows:

"The [subject] land has a frontage to Babbacombe Drive of approximately 38.6m and to Commercial Road of approximately 65m.  Its total area is approximately 2500mý.

The site has been developed as a Mobil service station facility, comprising a building accommodating a retail area, a covered forecourt containing fuel pumps dispensing various petroleum products, underground fuel storage and above ground LPG storage, carparking areas and landscaping.  Existing advertising signs on the site comprise a pylon sign, incorporating a price board and product panels, approximately 6m high, two pole banner signs  incorporating product displays, each approximately 3.8m high, and various site identification signage elements, including fascia and wall signs.  The evidence of Mr Smith, which was not disputed, was that the total surface area of the pylon sign was 19.7mý, and that of each pole banner sign, 4.8mý, producing a total sign area of 29.3mý ...

The subject land lies within a Neighbourhood Centre Zone as depicted on Map No. 36 in the Development Plan for the City of Noarlunga.  That zone is surrounded by a Residential Zone, of which that portion lying to the west of Commercial Road is substantially developed, whereas that portion to the east of Commercial Road has yet to be developed.  Commercial Road is a busy arterial road, and is subject to an 80km per hour speed restriction where it abuts the subject land.  The service station is visible for a distance of about 2km to the north, but only becomes visible at a distance of about 200m to the south.  The balance of the Neighbourhood Centre Zone, which, inclusive of the subject land, has a total area of approximately 11400mý, is as yet undeveloped."

The Commissioner described the proposal as follows:

"The proposal, the subject of these proceedings, envisages the flying of a total of 4 flags from as many flag poles, which are to be located adjacent to the Commercial Road frontage of the subject land.  The flags, which have already been erected, have dimensions of approximately 2.85m x 1.45m and each has a total area per side of 4.13mý.  Each is fabricated from white material and has printed on one side, in a red colour, 3 "Pegasus" symbols.  The image is visible on both sides of the material.  The flagpoles are spaced at 13m centres, and each is 6m high ...

The Commissioner set out in his judgment a number of the Objectives and Principles of Development Control of Metropolitan Adelaide and of the City of Noarlunga. I note in passing that the relevant objectives and principles of the City of Noarlunga Development Plan employ a variety of relevant phrases, including "outdoor advertising", "advertising displays", "advertisements" and "advertising hoarding".  The Commissioner fastened particularly on Principle of Development Control 133 of the City of Noarlunga which reads, omitting the immaterial words:

"133.  Within Neighbourhood Centre and Commercial Zones, advertisements or advertising displays should:
....

(d) be limited to one freestanding advertising hoarding per site or where the site is located on the corner of an arterial, major local or collector road intersection, one freestanding advertising hoarding for each arterial, major local or collector road frontage."

Development is defined in s4(1)(h) of the Development Act 1993 ("the Act") to include "an act or activity ... declared by regulation to constitute development". Regulation 6 of the Development Regulations 1993 ("the Regulations") states that "an act or activity in relation to land specified in schedule 2 is declared to constitute development". Schedule 2 includes, amongst other acts or activities declared to constitute development, the following:

1. Other than within the City of Adelaide, the commencement of the display of an advertisement ..."

Having regard to these provisions, the parties to the appeal understandably have agreed that the proposal constitutes development, and that it requires approval, see s32 et seq of the Act.

Section 4 of the Act includes the following relevant definitions, after the words "In this Act, unless the contrary intention appears -"

‘"advertisement’ means an advertisement or sign that is visible from a street, road or public place or by passengers carried on any form of public transport.’

‘"advertising hoarding" means a structure for the display of an advertisement or advertisements."  (My emphasis.)

The Act does not define a ‘structure’, other than to provide that it "includes a fence or wall".

Section 5 of the Act, so far as is material, provides:

"5.(1) Subject to subsection (2), if a term defined in this Part is used in a Development Plan then the term has, unless the contrary intention appears, the defined meaning.

(2) The Governor may, by regulation, define a term used in a Development Plan, and such a definition, if inconsistent with a definition in this Part, operates to the exclusion of the latter."

(I add a reference to s14 of the Acts Interpretation Act 1915).

Counsel agree that the only other section in the Act where the phrase "advertising hoarding" appears is s74 where the drafter has used the collocation of words "advertisement or advertising hoarding. I quote only ss(1):

"74.(1)  Where, in the opinion of the Development Assessment Commission or a council, an advertisement or advertising hoarding -

(a)     disfigures the natural beauty of a locality or otherwise detracts from the amenity of a locality; or

(b)     is contrary to the character desired for a locality under the relevant Development Plan,

the Development Assessment Commission or council may order ... that person to remove or obliterate the advertisement or to remove the advertising hoarding (or both) ..."

Regulation 7 of the Regulations states:

"7.(1) Subject to this regulation, an act or activity specified in schedule 3 is excluded from the ambit of the definition of ‘development’.

(2)  An exclusion is subject to any condition or limitation prescribed by schedule 3 for the relevant act or activity.

(3) ..."

Paragraph (1)(b)(ii) of Schedule 3 excludes from the ambit of the definition of development:

"[The construction or alteration of, or addition to] a non load-bearing aerial, antenna, flagpole, mast or open framed tower or other similar structure (but not including an advertising hoarding), which is not attached to a building and is not more than ten metres in height ..."  (My emphasis.)

The words I have emphasised also appear in the same collocation of words in par9(c)(ii) of Part 2 of Schedule 4 which deals with Building Rules under the heading of Complying Development.

For the sake of completeness, I refer to Regulation 3(1) which provides:

"3(1) In these regulations and in any Development Plan, the terms set out in schedule 1 have, unless inconsistent with the context, or unless the contrary intention appears, the respective meanings assigned by that schedule."

Schedule 1 includes the following definition:

"’advertising display’ means an advertisement depicted on an advertisement area on -

(a)     a free standing structure on land; or

(b)     a structure attached to a building; or

(c)     a structure similar to a building on land; or

(d)     any surface of a building or structure"

Counsel for the respondent sought to rely on this definition, but I am not persuaded that it assists his argument.

The Commissioner decided that "the flagpoles the subject of these proceedings are ‘advertising hoardings’ inasmuch as their purpose is the display of advertisements in the nature of flags", and concluded that "the subject proposal conflicts, to a substantial degree, with the provisions of Noarlunga (City) Principle 133(d)."

The Macquarie Dictionary gives two meanings for "hoarding" - "a temporary fence enclosing a building during erection", or "a large billboard on which advertisements or notices are displayed".  In the context I am considering it is the second meaning that is appropriate, a very familiar example in Adelaide being the billboard over the Britannia Hotel at 1 Kensington Road, Norwood.

In ordinary parlance, I do not think one would call a flagpole a hoarding. Have the plannings laws effected a change? It is necessary to focus on the definition of "advertising hoarding". It would clearly include the Britannia Hotel billboard, even if the billboard did not contain any actual advertisement. The way s74 of the Act is drafted also seems to support such a conclusion. A flagpole is undoubtedly a structure, but I do not consider it is a structure for the display of an advertisement or advertisements. It is a structure for the display of a flag. The placing of (say) the Australian flag on a flagpole would not constitute development, but as soon as the flagpole’s owner places a flag containing an advertising message it would be caught by par 7 of Schedule 2, supra, and constitute development. Further support for the appellant’s submission is to be found in par (1)(b)(ii) of Schedule 3 and par(9)(c)(ii) of Schedule 4, where the drafter has specifically differentiated between a flagpole and an advertising hoarding.

In my opinion, the Commissioner’s interpretation was erroneous.

Counsel for the appellant referred to the fact that the Council had previously consented to the erection of three advertising hoardings on the subject land, and in the circumstances he submitted that Principle 133(d) no longer speaks to the subject land.  I agree with the Commissioner’s response.  He said:

"... the fact that the Council, having undertaken a planning assessment of the original signage proposal, saw fit to allow signage which went beyond the stipulation of Principle 133 does not, in my view, impair its ability, confronted with a further signage application, to conclude that the additional signage would create so substantial a departure from the relevant provisions of the Development Plan as to warrant refusal."

The Commissioner said that "[Principle 133] has to be accorded considerable weight in assessment of the subject proposal, inasmuch as it speaks to that proposal more directly than any other Principle". Having regard to my conclusion that he was in error in deciding that the relevant flagpoles were "advertising hoardings", I consider in the circumstances of this case that the error was what Wells J called an "identifiable and egregious" one (see Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467 at 480, and that the appeal will have to be allowed. Having regard to the fact that there are other relevant Objectives and Principles of Development Control in the Development Plan, I have concluded that the application should be remitted to the Environment Resources and Development Court for further consideration. Without wishing to indicate that I have any view favourable or unfavourable to the application, there remain a number of other planning considerations to be weighed by a specialist tribunal. I will hear counsel as to whether or not I should direct that the appeal be remitted to the same Commissioner.