Forma Holdings Pty Ltd v Minister for Urban Affairs and Planning
[2000] NSWLEC 113
•06/15/2000
Land and Environment Court
of New South Wales
CITATION: Forma Holdings Pty Ltd v Minister for Urban Affairs and Planning [2000] NSWLEC 113 PARTIES: APPLICANT
RESPONDENT
Forma Holdings Pty Ltd
Minister for Urban Affairs and PlanningFILE NUMBER(S): 10111 of 2000 CORAM: Pearlman J KEY ISSUES: Question of Law :- preliminary question of law - whether signs are "roof signs" LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 25(3), s 88A
Interpretation Act 1987 s 33
Strathfield Development Control Plan No 7 cl 2, pt B cl B.1(viii)(a), Table A, sch 1 item 6, sch 2 item 6
Strathfield Local Environmental Plan No 74 cl 2, cl 47, sch 12
Strathfield Planning Scheme OrdinanceCASES CITED: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297;
Harris v Brights Asphalt Constructors Ltd [1953] 1 QB 616;
Mills v Meeking and Anor (1990) 91 ALR 16DATES OF HEARING: 29/05/2000 DATE OF JUDGMENT:
06/15/2000LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr M H Tobias QC
SOLICITORS
Bray Jackson & Co
Mr P R Clay (Barrister)
SOLICITORS
Department of Urban Affairs and Planning
JUDGMENT:
IN THE LAND AND
10111 of 2000
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 15 June 2000
- Applicant
Respondent
Introduction
1. A preliminary question of law has arisen for determination in this class 1 appeal. The question is as follows:
Whether the two signs attached to the premises of dimensions 17 metres x 4 metres are “roof signs” as defined in Clause 47(2) of the Strathfield Planning Scheme Ordinance and are thereby prohibited.
2. The background to that question is as follows. The applicant has appealed against the deemed refusal of a development application which sought consent from Strathfield Municipal Council (“the council”) for the erection of six advertising signs on land known as 3 - 5 Underwood Road, Homebush upon which is located a building called the Homebush Home Improvement Centre. The Minister for Urban Affairs and Planning directed the council to refer the development application to him for determination in accordance with s 88A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).
3. The preliminary question of law relates to two of the six signs the subject of the development application. Those two signs (“the elevated signs”) will be erected by attachment to the face of the northern wall of the building. The top of each elevated sign will protrude in a vertical plane 2.4 metres higher than the level of the roof or the parapet of the building to which it is affixed. The applicant has explained that the two elevated signs are identical to signs which are presently affixed to the wall of the building, but they will simply be raised higher.
The statutory context
4. Under the Strathfield Planning Scheme Ordinance (“the SPSO”) the land is zoned 4(b) Industrial Light. By the Strathfield Local Environmental Plan No 74 (“LEP 74”) the SPSO was amended by the insertion of a new cl 47 which is relevantly in the following terms:
47(1) The aim of this clause is to ensure that outdoor advertising:
(a) conveys advertisers’ messages and images while complementing and conforming with the visual appearance of the building or other structure on which it is displayed and the amenity of the surrounding environment; and
(c) does not lead to visual clutter through the proliferation of signs.(b) does not adversely affect the area in which it is located in terms of appearance, size, illumination, overshadowing or in any other way; and
(2) In this clause and in Schedule 12:
…
…“roof sign” means a sign erected on or above the roof or parapet of a building.
(3) …
(5) Development for the purpose of erecting or displaying any of the following types of advertisements and signs is prohibited:(4) …
…
(i) roof signs;
5. Schedule 12 contains a list of advertisements that do not require development consent. None of those advertisements apply in this case.
6. The aims of LEP 74 are relevantly set out in cl 2 in the following terms:
2. This plan aims to -
(b) ensure that outdoor advertising complements and conforms with the visual appearance of the buildings on which it is displayed and the amenity of the surrounding environment …(a) regulate outdoor advertising throughout the Strathfield local government area;
7. The Strathfield Development Control Plan No 7 - Erection and Display of Advertising Signs and Structures (“DCP 7”) also applies. It commenced on 27 October 1999 which was subsequent to the commencement of LEP 74.
8. In the light of the statutory context, the question of law turns upon whether, on the proper construction of the definition of “roof sign” in cl 47, the elevated signs fall within that definition being signs that are to be erected “on or above the roof or parapet” of the building.
The competing submissions
9. The submission put by Mr Clay, appearing for the Minister, may be summarised as follows:
(1) The ordinary meaning of the word “above” in its context as part of the definition of “roof sign” means “higher than”.
(2) That follows from the alternatives which the draftsperson adopted. “Above” is in the alternative to “on”. A sign which is “on” a roof is obviously also “above” it, so that it must be presumed that the draftsperson was directing his or her mind to another possibility. If the draftsperson intended that “above” in this context means “over” as distinct from “on” then that could only apply to signs which are “over” roofs but not “on” them, that is, of no physical connection with the roof, and that is an absurd result.
(3) Similarly “parapet” is used as an alternative to “roof”. A parapet is defined in the Macquarie Dictionary as “… any protective wall or barrier at the edge of a balcony, roof, bridge, or the like”. Thus a parapet is “over” a roof. If the draftsperson intended “above” to mean “over”, then a sign “above” a parapet would be a sign which is also “over” the roof, and there would have been no need for the draftsman to have used the word “parapet” at all.
(4) A construction of “above” to mean “higher than” also follows from adopting a purposive approach. Reference to the aims and objectives of LEP 74 reveal the scope and purpose of cl 47. It is intended to control and regulate the impact of outdoor advertising in terms of visual and other amenity. The construction advocated on behalf of the Minister promotes that purpose.
10. Mr Tobias QC, for the applicant, contended that the proper construction of “above” is “physically over” the roof or parapet of a building, or, to adopt a dictionary meaning, “overhead” that roof or parapet. The draftsperson intended to deal with signs which are either resting “on” a roof or parapet, or are erected upon some structure “above” the roof or parapet, and it follows that what is being described is something other than a sign which extends vertically above the level of a roof or parapet but does not extend “over” that roof or parapet.
11. Reference to the aims and objectives of LEP 74 and cl 47 do not, in Mr Tobias’ submission, assist in resolving the problem of construction. The only consequence of the construction which the applicant advances is that the elevated signs will be permissible with development consent rather than prohibited, and, in that circumstance, the matters of impact set out in the aims and objectives are matters to be taken into account by the Minister in determining whether or not, on the merits, to grant development consent to the erection of the elevated signs.
12. Mr Tobias submitted that the construction advanced by the Minister would require reading additional words into the definition for it to clearly capture the elevated signs, so that it would read as follows:
“Roof sign” means a sign or any part of a sign erected on or above the level of the roof or parapet of a building. (emphasis added)
13. Citing Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297, Mr Tobias contended that no irrational or capricious result arises from the meaning of the words in the definition, and hence there is no warrant for reading words into that definition. Furthermore, he cited Mills v Meeking and Anor (1990) 91 ALR 16 at 30 as authority for the proposition that the definition cannot be modified in this way unless such modification is “necessary to effectuate” the purposes of LEP 74, and in this case, no such modification is necessary, particularly since such modification would require reference to part of a sign as well as the whole sign.
14. Mr Tobias also cited Harris v Brights Asphalt Contractors Ltd [1953] 1 QB 617 where, in construing a regulation which used the phrase “where workmen have to pass over or work above such fragile materials”, Slade J at p 628 held that “above” meant “over in the sense of higher in the vertical plane of the fragile roof” rather than “at a greater height”.
15. Finally, Mr Tobias submitted that the construction advanced by the Minister would yield an absurdity, because it would prohibit a sign such as that proposed because it is “higher than” the roof or parapet, yet it would be permissible if it was affixed, rather than to the wall of the building, to a pole adjacent to it.
What is the meaning of “above”?
16. The relevant dictionary meanings of the word “above” which were brought to the attention of the Court are as follows:
The Macquarie Dictionary:The Oxford Dictionary:
1. Directly over, vertically up from; on or over the upper surface; on the top of, upon, over.
4. Higher in absolute elevation than; rising or appearing beyond the level or reach of.
1. In or to a higher place; overhead;
5. In or to a higher place than.
17. It is apparent, therefore, that each of the competing constructions advanced by the parties are available by reference to the dictionary definitions of the word “above”. That supports my conclusion, which is contrary to Mr Tobias’s submission, that the words of the definition of “roof sign” in LEP 74 are not plain and unambiguous, but are unclear generally, and, in particular, in their application to the set of circumstances of this case.
18. Accordingly, the proper approach to the problem of construction which is raised by the preliminary question of law is to have regard to the purpose or object underlying LEP 74, and to adopt a construction that would promote that purpose or object rather than a construction which would not promote that purpose or object (s 33 Interpretation Act 1987).
19. That approach is mandated by s 25(3) of the EP&A Act which provides as follows:
25(3) Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred.
20. In this case, the aim, purpose or object is expressly stated in cl 2 and cl 47 of LEP 74. The aim, purpose or object is to regulate signs so that they complement and conform with the visual appearance of the building, and the amenity of the surrounding environment, and to ensure that signs do not affect the area in which they are located in terms of appearance, size, illumination, overshadowing, or in any other way.
21. That aim, purpose or object would, in my opinion, be promoted by a construction which pays due attention to the visual and other amenity impacts which LEP 74 is intended to control or regulate. Adopting the construction of “above” as meaning “higher than” in this context would promote the purpose and object of LEP 74 whereas adopting a construction of “above” as meaning “over” in this context would not. That is because, in my opinion, the words “higher than” relate more directly to those impacts than does the word “over”. “Higher than” seems to me to connote a visual effect, whilst “over” relates more to the physical location of the sign. Furthermore, “roof signs” are prohibited because, in conformity with the aim, purpose or object of LEP 74, they impact upon the visual appearance of the building to which they are attached. To achieve that aim, purpose or object a wider or more ample approach rather than a narrow approach is required. Construing “above” as meaning “higher than” more fully achieves that aim, purpose or object than “over”, because “higher than” includes “over” and has a wider and more ample meaning.
22. I do not agree with Mr Tobias’s contention that construction of the definition of “roof sign” should not be determined by reference to the aim, purpose or object of LEP 74 because that aim, purpose or object raises questions of impact which are more properly considered in the course of a determination of the development application on its merits. The aim, purpose or object of LEP 74 is expressly stated in two separate places in LEP 74 and it is not less relevant because it is stated in terms of potential impact. It sets the context for LEP 74, which, read as a whole, applies to advertising signs generally, and it is not inconsistent with the aim, purpose or object that a roof sign which is either “on” a roof or parapet or “above” it (in the sense of “higher than”) is prohibited.
23. DCP 7 is of some assistance in the resolution of the construction question, although it is not determinative. It came into force after LEP 74, and cl 2(a) and (b) of its aims and objects mirror the aim, purpose or object of LEP 74, and to that extent it reinforces the construction which I have adopted. In addition it states, in pt B, cl B.1(viii)(a) that a “roof sign or wall sign projecting above the roof or wall to which it is affixed” is development which is prohibited in all zones under the SPSO. The use of the words “projecting above” reflects a construction of “above” as meaning “higher than” rather than “over”.
24. Another provision of DCP 7 merits attention. Table A notes that a “flush wall” sign is permissible with consent in industrial zones under the SPSO. The term “flush wall sign” is defined in sch 1 item 6 as meaning “… a sign attached to the wall of a building … and not projecting horizontally more than 0.3m from the wall on which it is attached” and, in sch 2 item 6, it relevantly states that a flush wall sign “shall not project above the top of the wall to which it is attached more than … 2.4m …” (No doubt the applicant has designed the signs to conform with this requirement). The use of the words “project above” also reflects a construction of “above” as meaning “higher than” rather than “over”. But although at first glance this provision seems to suggest that the elevated signs fall within the description of “flush wall sign” and are thus are permissible with consent, the case is not put by the applicant on this basis, nor could it be, because DCP 7 cannot override the provisions of LEP 74. If the elevated signs fall within the definition of “roof sign” in LEP 74, then they are prohibited development, despite any provision of DCP 7.
25. I do not agree with Mr Tobias’s submission that the construction advanced by the Minister requires words to be read into the definition of “roof sign” or that it would lead to absurd results. That construction simply requires the word “above” to be given the meaning of “higher than” in the definition.
26. No modification of the definition is required, and accordingly the construction principle set out in Mills v Meeking does not apply. Nor is Harris v Brights of any assistance, because that case involved an entirely different set of words in quite a different context.
Conclusion
27. For these reasons, I answer the preliminary question of law as follows:
Question:
Whether the two signs attached to the premises of dimensions 17 metres x 4 metres are “roof signs” as defined in Clause 47(2) of the Strathfield Planning Scheme Ordinance and are thereby prohibited.
Yes, the elevated signs are prohibited because they are “roof signs” so defined.Answer:
28. The hearing should proceed as scheduled and should be determined having regard to the answer I have given.
29. The exhibits may be returned.
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