Forbes Rigby Pty Ltd v Wollongong Council

[2003] NSWLEC 423

>

Land and Environment Court

of New South Wales

CITATION:

Forbes Rigby Pty Ltd v Wollongong Council [2003] NSWLEC 423

PARTIES:

APPLICANT
Forbes Rigby Pty Ltd

RESPONDENT
Wollongong Council

FILE NUMBER(S):

10446 of 2003

CORAM:

Murrell C

KEY ISSUES:

Development Application :- advertising signs on the overpass bridge of the Princes Highway - visual impact - community benefit - safety

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
1990 Local Environmental Plan
State Environmental Planning Policy No. 64
State Environmental Planning Policy No. 1

CASES CITED:

DATES OF HEARING:

17/12/03, 18/12/03 and 19/12/03

EX TEMPORE
JUDGMENT DATE :

12/19/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Newport
instructed by Mr P. Moggach
of Kearns Garside

RESPONDENT
Mr C. Leggatt
instructed by Mr M. Manti
of Peedoms

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10446 of 2003 Murrell C 19 December 2003

Forbes Rigby Pty Ltd
Applicant

v

Wollongong Council
Respondent Judgment

1. This is an extempore judgment in a matter that I heard over the last two days for an appeal under s 97 of the Environmental Planning and Assessment Act against Wollongong City Council’s refusal of a development application for advertising signs on the road overpass bridge known as, Heywoods Bay Bridge, which is adjacent to the Yallah Industrial Area.

2. The proposal is for two signs 2.2 by 8.3 m to be erected in a horizontal manner, one on each side of the bridge yielding an area of 19 m2. It is also proposed that there be one community sign on each side of the bridge, 1 m by 3 m yielding a 3 m2 area.

3. The subject site is towards the southern boundary of the Wollongong City Council area. The area can be described as `most scenic’ with views of the escarpment and the rural hills, together with settlement patterns which are becoming obvious in terms of the Heywoods Bay Estate, which is presently being developed as a 400 lot residential subdivision. The Heywoods Bay Estate is on the eastern side of the road. The interchange that was recently constructed, approved in 1994, but recently completed, incorporates a vehicular overbridge over the Princes Highway as well as a roundabout and separate north bound and south bound on and of ramps, and there is provision for cyclists and pedestrians to cross the bridge.

4. By way of background it is noted that an earlier application was submitted to the council for two very large signs on each side of the bridge, - on the northern and southern side of the bridge, in late 2001. Approval was sought for the two signs on both approaches, and the council refused development consent.

5. A subsequent development application was submitted to the council for two signs of eight by 2 m on both sides of the overpass bridge. However, the application was subsequently amended and it is the subject of these proceedings that the applicant is now seeking approval for one 2.2 by 8.3 sign on each side. During the proceedings, there was an amendment which the council did not object to for the signs to be centrally located on the overpass bridge for both the north and the south. As I stated, the community sign was to remain in the situation as shown on the original plan.

6. The statutory planning framework is that the subject site is zoned ‘5’ under the LEP for Wollongong 1990 Local Environmental Plan, and as amended. The subject site is the airspace to be leased by the council. Council is the owner of the airspace above the highway, and in that regard a lease would have to be entered into with the council.

7. In terms of the LEP, the sign falls under the category of advertisement, which means, “A sign, notice, device, a representation in the nature of an advertisement for promotional purposes, or for conveying information, instructions, directions, or the like, whether or not the sign, notice, device or representation involves the erection of a structure or the carrying out of a work. But does not include a business sign, real estate sign, or a road traffic sign, or signal.”

8. Community facility is defined as, “building or place owned or controlled by a public authority.” And in terms of the objectives of the Special Uses zone, “The objective of the zone is to cater for the provision of community and public facilities and services.

9. Clause 9(3) of the LEP, “except as otherwise provided by this plan, council should not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.”

10. Uses that are permissible with consent in the zone include advertisements, as well as uses ancillary or incidental to such purposes as shown in table 15 to the plan, and this allows for public infrastructure in terms of the particular zone. It is noted that in table 15 the site is shown as 5C, or classified as 5C.

11. Clause 32 is also relevant to the Court’s determination in that, “The council, for an application to carry out development within the view of any waterway or adjacent any main road, shall take into consideration the probable aesthetic appearance of the proposed building or work, when viewed from the main road.”

12. Immediately to the east of the subject site there is the 6C ‘Tourist Zone’, and this allows for facilities to support tourism, such as: service centres; restaurants; service stations; and the like. And that particular area of land, a triangular parcel of land, also has Development Control Plan 47. This particular Development Control Plan does not cover the subject site, however, it is clear from the DCP that council has landscape and other controls in terms of giving effect to a non-proliferation of signage and a rationalisation of signage for that area.

13. Immediately to the west of the subject site, as I stated, there is an industrial area, the Yallah Industrial Area, which has been in existence, it would appear, for many years. One of the uses found here is a large Ford dealership.

14. State Environmental Planning Policy No. 64 is relevant to this matter. I will detail certain provisions in my assessment. The aims of SEPP 64, “to ensure that signage is compatible with the desired amenity and visual character of an area; include provide effective communication and suitable locations; and is of high quality design and finish. And the advertisement means a signage to which Pt 3 applies. In terms of signage generally the SEPP states: “In granting consent, the consent authority must have regard to; the signage is consistent with the objectives of the policy set out in 3(1)(a) (which I have just detailed); and the signage, the subject of the application, satisfies the assessment criteria specified in Sch 1.

15. Part 3 of this policy also requires, in terms of cl 13 that, “consent authority must have regard to the aims and objectives, or the objectives of the policy as well as those criteria set out in Sch 1.” In terms of Sch 1 it was submitted for the council that: “the proposed development does not satisfy the assessment criteria in terms of the character of the area, that the proposal is incompatible with the existing or desired future character of the area or locality.” For views and vistas; “The proposal will obscure or compromise important views, and reduce the quality of vistas in terms of dominating the skyline.” In terms of streetscape setting, or landscape; it was submitted that the sign does not satisfy the provision, that is the scale, proportion and form of the proposal is appropriate for the streetscape setting or landscape. In terms of safety, the criteria that the proposal would reduce the safety for any public road was also raised.

16. In terms of SEPP 64, the other relevant provision is with respect to cl 24, which states that, “The consent authority may grant consent only if the advertisement is located on, or is contained within the main horizontal span of the bridge.” And in the case of sub-clause 1, “A pedestrian or road bridge, the advertisement does not protrude more than 1,000 mm above the road level of the bridge, and sight lines of people using the bridge will not be obstructed by the advertisement.” Sub-clause C reads “the advertisement does not protrude below the structure of the bridge.”

17. In terms of the one metre requirement of not protruding above the road pavement, a State Environmental Planning Policy No. 1 objection was submitted to vary the standard. It was agreed that that is a development standard and a SEPP 1 was submitted in that regard.

18. In terms of the exceedance the proposed signage with the amended location in the centre of the bridge exceeds the one metre height limit by the southern elevation for between 450 to 550 mm, and for the northern elevation, by 500 and 650 mm. The main reason the signs were centred was an attempt to overcome the issue of safety.

19. Issues that were identified by the council were: that the proposed signage is inappropriate in terms of non-compliance with council’s objective for the zone and that in terms of SEPP 64, for the criteria identified in Sch 1 the proposal is not satisfactory. The council is also of the opinion, that the sign does not provide a community or public facility or service.

20. Prior to the proceedings the issue of safety had been raised, but at the beginning of the proceedings council did not press same. However during the proceedings it became clear that safety is an issue. The Court did allow consideration of this because clearly it is a matter that must be taken into consideration in terms of SEPP 64 and SEPP 1.

21. It is noted in council’s reports that an internal traffic report had been prepared. Council’s traffic engineer prepared a statement of evidence on the basis that the proposed signage will pose adverse traffic safety impacts in the locality. And it also transpired during the proceedings that council had engaged a traffic consultant to address this issue. But this was not initially available to the Court. Nonetheless, as I said, the Court considered it was a necessary matter to be addressed, and during the course of the proceedings there was an attempt by the applicants expert, and council’s consultant expert to confer to address this issue.

22. At the end of the day, in terms of the traffic consultant’s conferring, there was an agreement that the sight lines would not satisfy the necessary requirements from a traffic point of view. And in that regard the applicant agreed to the second, without prejudice condition, that is to limit the size of the sign for the southern elevation.

23. Another issues raised by the council was with respect to precedence for future commercial signs in the locality. The application was notified and two submissions were received: one in support of the application: and the National Trust made a submission objecting to the proposal. The National Trust was of the opinion “that it would constitute a danger and hazard to road users, and that the signage over the road should be restricted to road signs. It would be an eyesore, and it would be constructed on public land, and should be left uncluttered. And that the development would favour private interests to the detriment of the public interest”.

24. It is noted that the overbridge was constructed by the developer of the 400 lot subdivision at the developer’s expense of some $4m, although it would appear that the RTA also made a contribution. When the subdivision was approved in 1994, there was not a s94 plan. However, it was considered to be a necessary condition in order to allow access to the highway for the proposed subdivision.

25. The applicant submitted that in this regard the proposed signage on the developer funded bridge could be seen as a community benefit, and that would be one way of satisfying the objective of the zone.

26. The council submitted that the two larger signs proposed were a visual and inappropriate intrusion into the landscape and visual environment of road users and that it would detract from the quality of view, and that the intrusion was incompatible with the character of the roadway on either side of the bridge. And in this regard commercial signage was seen to be incompatible with the character of the area. Furthermore, it was considered that the proposed large signs would increase the visual bulk of the bridge and detract from its transparent design. It was also considered that the SEPP 1 objection could not be justified.

27. On behalf of the council, evidence was given to the Court by: Ms Lappin, a senior planner with the Wollongong City Council, and Mr David Chesterman, an architect, who gave evidence to the Court with respect to the visual assessment of the proposed signage.

28. For the applicant, evidence was given to the Court by:


Mr Richard Lamb, a visual assessment consultant, and
Mr Paul Drake, a town planning consultant.

29 . The traffic engineer experts for the parties had telephone conferences and they are Mr Hallam and Mr McClaren.

30 . Council is of the opinion that the proposed overbridge is a gateway, or marker, of the local government area boundary. The applicant is of the opinion that it does not denote an entry into Wollongong, and to the driver, he would not be aware of this situation. It was agreed however by the applicant that the bridge certainly provides a marker, especially for the new residential Heywoods Bay subdivision, and for the Yallah Industrial Area.

31 . Ms Lappin is of the opinion that a commercial sign could not be consistent with the objective of the zone. And in terms of Mr Chesterman, he considers that the proposed signage would be a significant detraction from the quality of this important view sequence and greatly reduce opportunities to upgrade it in the future. He is also of the opinion that it is incompatible with the existing and desired future character and that the visual bulk of the bridge would be substantially increased and in terms of the actual signage he considered from an architectural point of view, even though he did not consider the bridge had great architectural merit, that the proposed signage would be an addition and not designed into the bridge. He maintained this position even with respect to the centring of the signs. It is noted that the visual consultants agreed that the centring of the signs would suit the architecture of the bridge better but Mr Chesterman was of the opinion this would only be a minor improvement with no change in terms of his views on the main issues.

32 . The State Environmental Planning Policy No. 1 objection is a threshold matter so therefore I will consider the SEPP 1 objection in the first instance. In terms of Winton v North Sydney a Judgment of his Honour Justice Lloyd in this Court, there was agreement that the development standard of one metre for signage protruding above the pavement of the road of the bridge was a development standard. In terms of the objectives of the standard from 24 2(b)(1) the advertisement is not to protrude above one metre for the purpose of ensuring sight lines of people using the bridge will not be obstructed by the advertisement. In this regard there are two underlying objectives that are looked at, that is with respect to the safety of vehicles and the safety of vehicles is an issue in terms of the RTA’s concerns as well and the Court must have regard to that objective. The other objective that the Court must have consideration to is the sight lines of people using the bridge and Ms Lappin was of the opinion that the proposed signage would interfere and obscure the view of pedestrians on the bridge, in particular children, and that it would be inappropriate in that regard.

33 . Mr Drake, on the other hand, was of the opinion that the use of the bridge by people is a purposeful exercise in going from one side to the other and the only part that would be obscured would be whilst one is near the sign and the sign is some 8 m in length for a bridge that spans some 34 m and that it is a momentary obstruction and this obstruction is only to cars underneath the bridge and in his opinion the proposal justifies a variation because it does not offend the objective.

34 . Clearly the sign on the northern elevation is as proposed in the development application and it is higher than the one metre above the pavement and in the Court’s assessment it was agreed that this particular sign would not obstruct views or create any danger in terms of vehicles using the overpass. The issue is the second objective which is with respect to people using the bridge and being able to see over the signage. In this regard, I am persuaded by the applicant’s evidence that the obscuring of views is only a partial obscuring in terms of the time that one takes to cross the bridge and that in the circumstances the one metre standard is unreasonable and unnecessary in the circumstances of this case.

35 . I am satisfied that the objective of the SEPP 1 policy to provide flexibility in the application of planning controls in terms of development standards where strict compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Act. In this regard I am satisfied that the variation is justified and that the SEPP 1 objection is well founded. I have not only the benefit of the SEPP 1 objection that was tendered but all the evidence to the Court and I in conclude that the SEPP 1 objection should be upheld.

36 . At the end of the proceedings, the applicant agreed to the signage for the southern elevation to be conditioned such that it would only be 1 m high. This was agreed because of the issue of safety arising during the proceedings and difficulties in the conferencing process during the proceedings of the traffic engineers.

37 . The merits assessment also overlaps to some extent with the SEPP 1 assessment of the application but there are specific clauses in the LEP which I must turn my mind to and they are with respect to the consistency of the proposal with the objective in the LEP. The LEP does provide the objective of the zone “to cater for the provision of community and public facilities and services”. To assist me in my consideration of that particular clause the applicant handed up a decision of Frank Russo v Kogarah Council and also of assistance is the decision handed up by the respondent of Gillespie v Warringah Council of his Honour Justice Bignold which is a decision in this Court of November 2002.

38 . The slight difference of approach is not necessarily conflicting. I have noted the fact that his Honour Justice Bignold refers to a narrower interpretation in terms of consistency or a more expansive consideration. He considers many of the judgments including the one of the Court of Appeal, the judgment of His Honour Justice Clark in Coffs Harbour Environment v Coffs Harbour City Council and he also turns to the dictionary in terms of the definition. It has been held in this Court quite often that in terms of a development meeting the objectives of a zone that the development does not have to positively promote the objectives and that provided it is not antipathetic to the objectives then it satisfies the provision of consistency. His Honour Justice Bignold in par 71 turns to the dictionary in terms of the definition of antipathetic “having a natural antipathy contrariety or constitutional aversion”. He says this indicates a far stronger but narrower connotation of the word inconsistent. Clearly there can be inconsistency with a stated object which does not involve any element of antipathy to that object.

39 . Bignold J comments at 73:
Accordingly, it is clear in my opinion that whereas something that is antipathetic to a stated object is obviously inconsistent with that object. Antipathy is not a clear synonym of inconsistency and the meaning of inconsistency is not to be confined to the meaning of antipathy. Inconsistency can arise without any antipathy. On the other hand, compatibility in my judgment may reasonably be regarded a synonym of inconsistency and the meaning of these words very similar.

40 . His Honour continues to say:

The primary dictionary meaning of compatible: capable of existing together in harmony is in my judgment both apt and applicable to the interpretation of the word consistent.


41 . I have considered the current development proposal in terms of the meaning that Bignold J. provides as well as consideration in terms of the decision of Clark J.in the Court of Appeal Judgment. The word antipathetic is a strong word, it is not for me to determine the principles that this Court should provide but I have considered this application in terms of the interpretation of compatible and consistent, that is capable of existing together in harmony and being mutually tolerant which does not go as far as antipathetic. I am satisfied that the proposed development with the two signs providing for community use of the signage for six weeks per year, a proposed condition of consent, together with the community signs on either side of the bridge of one metre by 3 m would make the proposed development not inconsistent but also compatible with the clause 9 of the LEP. That is I am satisfied that the proposed development is consistent with clause 9 in determining the application.

42 . The submission by the applicant that the bridge was funded by the developer and therefore it is a way of recouping some of that expenditure I have had regard to but do not accept in terms of the bridge was determined without the signage as such and I must independently look at the merits of this development application in terms of the consistency with clause 9. Nonetheless, I am satisfied that the signs, even though they are of a commercial nature, do provide a service to the community with the signage for six weeks and the smaller community signs which are a part of the development application. The fact that there are commercial signs is mutually tolerant in my assessment of the application.

43 . There was discussion about the fact that Ms Lappin was of the opinion that a commercial sign could not be consistent with the objectives but I must consider the totality of the development application.

44 . With respect to the issues of visual fit I have given careful consideration to this issue. As I stated earlier, this is a most scenic area, the escarpment and the environment in terms of the drive through this area is most expansive and whilst the proposed commercial signs will be most visible they will not protrude above the bridge and in terms of the overall expanse of the view I am satisfied that the view and vista will not be significantly impacted and would not be impacted to the point that would warrant refusal of the development application.

45 . The signs will be clearly ones that are part of urban infrastructure in terms of being located on the bridge and the area is one that is undergoing change. There will be greater signage in the area and the area is one that already has an industrial component and it will be further developed with a residential component. I do not believe that the proposed signage will compromise the visual experience of a motorist in terms of driving down the highway. The proposed signage are designed to attract attention but it is once again a momentary experience in terms of the total experience and the extent of the available vista and view.

46 . In this regard, I note that Dr Lamb provides an assessment and in his assessment he is of the opinion that “there are many different roadside elements seen in relation to the escarpment along this area of the highway. None of these transitory effects on the visual experience of the escarpment decrease its scenic quality to any substantial degree when this is considered as part of the dynamic experience of moving along the road”.

47 . He conceded that yes, the escarpment would be partly obscured momentarily as one is driving along the road, whether from a northerly or southerly direction, but this will not detract from the total experience in a way that would warrant refusal or in a way that would be in any way significant or dominant.

48 . Whilst he agreed that the design of the bridge was one that did incorporate light weight and transparent components, he did not agree that the addition of signage to this structure would significantly alter this. Nonetheless in his opinion the bridge as a result of its size and prominent location within the area will remain dominant. The extent to which the safety screens are seen as a variable transparent element will be fundamentally retained by the position of the signage even though it projects above the bridge. And in his opinion most of what the sign obscures is the bridge itself which in his opinion is hardly a scenic element and that was also agreed to by Mr Chesterman.

49 . In my assessment in scenic terms the extent of additional impact caused by by two signs on each side is minimal and I was persuaded the applicant’s evidence in this regard.

50 . As I stated, the criteria of the SEPP must be considered in terms of Sch 1 and this refers to the desired and future character of the area. And I am satisfied that the proposed signs will not be incompatible or inconsistent with the character of the area.

51 . With respect to the proposal obscuring or compromising important views and dominating the skyline and reducing the quality of vistas I am satisfied that the proposed commercial signs will have a minimal impact and in the total overall picture or expanse the portion that is obscured is minor and it is a momentary experience in the total experience of travelling along the highway.

52 . In terms of the streetscape, the setting and landscape the form of the proposal is appropriate. In this regard landscape is the issue and I am satisfied that even though the proposed sign is not an integral part of the design of the bridge they will not be offensive in terms of the experience of the motorist and that that they will provide a reasonable fit with the bridge.

53 . In terms of the issue of safety of any public road it was agreed the sign on the northern elevation does not interfere with the safety of the road. And in terms of the sign on the southern elevation this is to be limited to one metre because no agreement on safety could be reached during the proceedings.

54 . From the site inspection the bridge does provide a marker and clearly it will be a marker in terms of the new residential subdivision. However, I do not agree at this point in time it is a gateway in terms of people being aware of entering or leaving Wollongong City Council, although this could be provided for by identification or a community sign on the bridge.

55 . In terms of the issue of precedent, precedent is a matter that is relevant and precedent is discussed in the judgment of Golden v The Minister Administering the Ports , a decision of His Honour Justice Lloyd. Precedent must be looked at in terms of whether a proposal is objectionable in itself but it also can be looked at in terms of future applications being triggered. I am satisfied on the merits of this particular application and the circumstances that precedent is not a reason that would warrant refusal of the application. The approval of this application does not flag or trigger a proliferation of signage. The council has controls in terms of the nearby tourism area for signage and I also note in the council report that while council currently has no policy on signs in public areas a policy is being developed. Clearly, any future development applications have to be considered in the context of the statutory framework and guidelines applying at the time and it is open to council to adopt a policy with respect to signage.

56 . In my consideration of all the evidence I am persuaded by the evidence presented on behalf of the applicant that the signage is satisfactory in the circumstances of this case and I have carefully considered the context of this particularly scenic picturesque natural landscape. As I stated, the signage will be attached to urban infrastructure and it will be read as part of the urban area of the industrial estate and the residential development to the east. It is part of the road infrastructure and an experience that one would not be offended by in terms of travelling on the road. Clearly, the proliferation of signage is not desirable but I am of the opinion that approval of this signage will not offend or create a proliferation of signage given every application must be considered on its merits and in the context of the planning controls.

57 . It is noted that the RTA has not given its concurrence to the development but with respect to a previous letter where it had considered four commercial signs the RTA provided comments. The concurrence is triggered by the fact that the signage is in excess of 20 m2, the commercial signs are each 19 m2 together with a community sign on each facade of 3 m2, therefore it does exceed the 20 m2. Under the Court Act the Court can assume the role of concurrence and the issues previously raised by the RTA are matters that have generally been part of my merits assessment. That is: the impact of the advertisement on traffic safety; the environment; character and quality of the road; and the RTA guidelines (in this regard the RTA’s policy of 99(2) was tendered). I am satisfied that the Court can assume the role of concurrence in this regard and there are no issues raised that would warrant refusal of the application.

58 . Therefore, on the basis of my assessment the current proposal is satisfactory and while there is an intrusion into the landscape it is not one that would warrant refusal of the application for it forms but one element in a momentary sense of an experience of travelling along the road.

59 . In terms of the conditions, they are as agreed to between the parties. Condition (2) reads:
“ The proposed advertising structure on the southern side of the bridge must not protrude more than 1,000 mm above the road level of the bridge to ensure the sight lines of vehicles are not obstructed by the advertising structure”.

60 . Condition (7) reads:

“The proposed signs must not be constructed until an arrangement is entered into with the council as the appropriate roads authority for the lease”.


61 . And the additional conditions in terms of the content of the sign and message of the sign which was considered by the council of concern and the Court agrees there should be a condition such that future signage does comply with a number of criteria that the council has identified and the applicant has agreed to and in that regard it is to ensure there is no confusion between traffic signs and the commercial advertising signs, the content of same and the signs do not move or flash in any way.

62 . It was also agreed by the applicant that the signs be made available for a total period of six weeks in any calendar year for the placement of community messages free of charge and that is imposed.

63 . By way of advice to the applicant SEPP 64 generally provides for a 15 year duration of consents and this is considered appropriate in the circumstances of this case.

64 . On the basis of my assessment above the orders of the Court are:

1. The appeal in respect of the overpass bridge known as Haywards Bay Bridge, Yallah, is upheld.

2. The objection under State Environmental Planning Policy No. 1 to vary the 1 m height of the structure above the road pavement as contained in cl 24 of State Environmental Planning Policy No. 64 – Advertising and Signage – is allowed.

3. The development application for advertising structures and signage submitted to Wollongong City Council, and as amended, is determined by the granting of consent subject to the conditions contained in Annexure ‘A’.

4. The exhibits except for exhibits 9 and J are returned.

___________
J S Murrell
Commissioner of the Court

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