Greenfield v The Council of the City of Sydney

[2020] NSWLEC 1006

Land and Environment Court

New South Wales

Medium Neutral Citation:	Greenfield v The Council of the City of Sydney [2020] NSWLEC 1006
Hearing dates:	Conciliation conference on 29 November 2019
Date of orders:	07 January 2020
Decision date:	07 January 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1)   The applicant is granted leave to rely on the amended plans, and the Conditions which are Annexure A to these orders. (2) The Applicant is to pay the Respondent's costs of $1,500 that were thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these orders. (3)   The appeal is upheld. (4)   Development consent is granted to development application D/2019/144 for the erection of three signs and the change of lettering of one existing sign to the East Façade of the building at 63 Miller Street, Pyrmont (also known as 1 Bulwara Road, Pyrmont) subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPEAL – conciliation conference – agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court 1979 State Environmental Planning Policy No 64 – Advertising and Signage Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Darren Greenfield (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: R McCulloch (Solicitor) (Applicant) J Mort (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) The Council of the City of Sydney (Respondent)
File Number(s):	2019/285391
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979(NSW) (EPA Act) relating to the refusal by the Council of the City of Sydney of Development Application No. D/2019/144 for the erection of four (4) signs including three illuminated top of building signs and one fascia sign at 63 Miller Street, Pyrmont.

2. The site is legally described as Lots 2 and 3 in DP 1116503, being located at the intersection of Miller Street and Bulwara Road, and is otherwise known as 1 Bulwara Road Pyrmont.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 November 2019. The proceedings commenced onsite, after which the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference, and adjourned the conference to allow amended plans to be prepared.

4. On 24 December 2019, a signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional preconditions relating to the State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64), and considerations contained in the relevant provisions of the Sydney Local Environmental Plan 2012 (SLEP) arising from the heritage significance of the existing building to which signage is proposed to be affixed.

7. The parties explained to me during the conference as to how the relevant considerations have been satisfied in order to allow the Court to make orders that give effect to the parties’ agreement. I am satisfied that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The land to which the development application relates is within the B4 Mixed Use zone under the provisions of the SLEP. The proposed development is permitted with consent, and I am satisfied that the proposal is consistent with the objectives of the zone which are in the following terms:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

2. Clause 13 of SEPP 64 provides that a consent authority, or the Court on appeal, must not grant consent to an application unless the advertisement or the advertising structure is consistent with the objectives of SEPP 64 as set out in cl 3(1)(a). On the basis of the concurrence of the heritage experts as to the lettering and positioning of the signage, I am satisfied that the proposal is consistent with the objectives of SEPP 64.

3. The site is listed in Schedule 5 to the SLEP as a heritage item of local significance, identified as being a ‘Former warehouse “Festival Records” including interiors’ (I1211). On the basis of the signage strategy prepared by the Applicant, the amended scope of signage, amended lettering and positioning of the top of building signage, I am satisfied that the effect on the heritage item is not unreasonable as required by cl 5.10(4) of the SLEP, and will not impose an adverse effect on the heritage conservation area known as C52 (Pyrmont).

4. Finally, I am also satisfied that the proposed signage exhibits design excellence as required by cl 6.21 of the SLEP considering the amendment of the sign design, incorporation of high quality materials and design that is sympathetic to the heritage item, neighbouring heritage conservation area and the public domain.

8. Having formed an opinion of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application.

10. The Court orders that:

1. The applicant is granted leave to rely on the amended plans, and the Conditions which are Annexure A to these orders.

2. The Applicant is to pay the Respondent's costs of $1,500 that were thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the making of these orders.

3. The appeal is upheld.

4. Development consent is granted to development application D/2019/144 for the erection of three signs and the change of lettering of one existing sign to the East Façade of the building at 63 Miller Street, Pyrmont (also known as 1 Bulwara Road, Pyrmont) subject to the conditions in Annexure A.

……………………………

T Horton

Commissioner of the Court

Annexure A (52.5 KB, pdf)

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