ICC Group Wollongong Pty Ltd v Wollongong City Council

[2022] NSWLEC 1335

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

ICC Group Wollongong Pty Ltd v Wollongong City Council [2022] NSWLEC 1335

Hearing dates:

Conciliation conference on 9 March 2022; 26 April 2022; 17 May 2022; 14 June 2022

Date of orders:

29 June 2022

Decision date:

29 June 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application 2021/435 for the replacement of the existing vinyl skin advertising sign and the associated directional up lights (five in number) located along the underside of the sign with a digital screen in relation to Lots 1 and 2 in DP 387153, known as 325-327 Crown Street, Wollongong, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – removal of an existing advertising sign and floodlights and replacement with an internally illuminated LED advertising sign – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34, 64

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, 3.11, 3.16, 3.20, Sch 5

Wollongong Local Environmental Plan 2009, cl 2.3

Texts Cited:

Australian Standard 4282-2019 Control of Obtrusive Effects of Outdoor Lighting

Transport Corridor Outdoor Advertising and Signage Guidelines (November 2017)

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

ICC Group Wollongong Pty Ltd (Applicant)
Wollongong City Council (First Respondent)
Transport for NSW (Second Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
J Reilly (Solicitor) (First Respondent)
H Kalarostaghi (Solicitor) (Second Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wollongong City Council (First Respondent)
Hunt & Hunt Lawyers (Second Respondent)

File Number(s):

2021/311839

Judgment

1. This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Wollongong City Council’s refusal of development application DA-2021/435 for the replacement of the existing vinyl skin advertising sign and the associated directional up lights with a digital screen at 325-327 Crown Street, Wollongong (DA).

2. Transport for NSW (TfNSW) is the second respondent having filed a Notice of Appearance pursuant to s 64 of the Land and Environment Court Act 1979 (LEC Act).

3. On March 2022, the Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties and I was the presiding Commissioner. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the Court could have made that decision in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA, as amended. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and based on that explanation and the documentation before the Court I am satisfied that I have jurisdiction to deal with the application. I also note the following matters.

State Environmental Planning Policy (Industry and Employment) 2021 (Industry & Employment SEPP)

5. The signage is consistent with the objectives of the Industry & Employment SEPP set out in s 3.1(1) being to ensure that signage (including advertising) “is compatible with the desired amenity and visual character of an area” (s 3.1(1)(i)).

6. In that regard, I note that the DA is for the conversion of an existing illuminated sign to LED digital technology. The upgrade of the existing sign is in keeping with present, emerging and desired character of the locality and the amenity of the area.

7. The signage also satisfies objective (ii) in s 3.1(1) of the Industry & Employment SEPP – “provides effective communication in suitable locations” – as it provides for an update of an existing feature that is compatible and consistent with other signage in shape, form and location within and adjacent to the road corridor. It is “of high quality design and finish” (s 3.1(1)(iii)).

8. Section 3.15(2) of the Industry & Employment SEPP prescribes that a consent authority must not grant consent to an application to display an advertisement unless:

(a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 5 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(b) the consent authority gave a copy of the application to TfNSW before the application is exhibited if the application is an application for the display of an advertisement to which section 3.16 applies.

9. The applicant has carried out an assessment of and is satisfied that the DA satisfies the assessment criteria in Schedule 5. In short, the requirements of, in particular s 3.6, have been met by the amended DA.

Wollongong Local Environmental Plan 2009 (LEP)

10. In relation to the LEP, the DA is for the purpose of ‘an advertising structure’ in particular, ‘advertising structures’ are permissible with consent in the B3 Commercial Core zone. The DA meets the objectives of the B3 Commercial Core zone at cl 2.3.

Character of the area

11. The proposal has been assessed by the Council to be consistent with the existing and desired future character of the area as detailed in the statement for the Wollongong City Centre Precinct defined under the Wollongong Development Control Plan 2009 (DCP).

12. In that regard, I note that the locality statement identifies that Wollongong City Council is looking to enhance vibrancy along streets and provide sustainable growth whilst reinforcing the special characteristics of the Precinct.

13. The evidence is that the existing advertising sign is part of the existing urban fabric and has been in situ for 39 years. In urban design terms, it is an established visual element, and the Council is of the view that it acts as a vertical visual marker that identifies to motorists and pedestrians they are in the CBD. Upgrading this sign to modern technology represents a considerable commercial investment and the Council accepts that it will improve the visual appearance of the western elevation, giving it a contemporary look and feel. Therefore, I accept that the development is consistent with the aims of the DCP to provide vibrancy and sustainable growth.

14. The upgrade to digital technology is also consistent with the current trends that are occurring in the outdoor advertising sector which now seeks to provide real time general advertising content that also incorporates community and civic messaging.

15. The Council has assessed that the proposed digital sign will not be out of place within its CBD setting given the level of activity surrounding the site. The digital conversion is in a commercial core and in Council’s assessment reflects the importance of the area as a commercial centre. Bringing an ageing sign up to modern standards is important for maintaining the relevance of commercial centres.

Special areas - heritage item

16. The Council informs me that a thorough assessment of the visual catchment of the proposal has been carried out and this has incorporated an independent and robust assessment of the impact it will have on the adjoining heritage item at 329 Crown Street being Dicey Riley’s Hotel. The Heritage Impact Assessment (HIA) supporting the DA in Appendix E states that:

“There will be no heritage impacts on the heritage items in the vicinity due to lack of proximity.

The use of updated LED technology for the replacement signage is acceptable in heritage terms as it avoids unnecessary light spill and will allow the management of operating times and brightness levels.

All existing views to and from the heritage item and along Crown Street will be retained and conserved.”

Views and vistas

17. The Council has assessed that the proposal will not significantly change the view of composition, as the existing sign has been displayed on the building for 39 years. Any existing view access to scenic and natural features, waterways or heritage items from the private domain will be not significantly altered by the proposal. The HIA at Appendix E has considered the impact the proposal will have on views to the local adjoining heritage item and has concluded that all views will be conserved.

18. The proposal is fully contained within the profile of the host building. The digital screen is located at the same height and in the same location as the existing sign. It occupies only 5.85% of the western wall elevation. This is well under the 10% allowed under s 3.20 of the Industry & Employment SEPP.

19. The proposal is not located close to any other signage and will not obscure views to other signage. It will not visually compete with other signage.

Streetscape, setting or landscape

20. The Council has assessed that the scale, proportion and form of the proposal are appropriate within its visual setting. The digital screen only occupies 5.85% of the overall western wall elevation.

21. The proposed sign is assessed to be in keeping with the commercial character of the existing locality and the B3 Commercial Core Zone objectives. The conversion to an LED digital screen will present as a contemporary streamlined and integrated structure. The removal of the five (5) flood lights will greatly reduce visual clutter and improve the visual presentation of the western elevation in the skyline.

22. The proposal is located in the same position as the existing sign which does not protrude above buildings, structures or tree canopies in the area or locality.

Associated devices and logos with advertisements and advertising structures

23. The sign will be illuminated with LED technology which will ensure an even distribution of light across the surface of the screen, so as to not generate glare or light spillage. The proposed content management system will ensure that no moving content is displayed. The webcam will ensure that the correct content is being displayed at all times.

Illumination

24. Electrolight has undertaken a thorough LIA which is detailed in Appendix D. This report certifies that installation of the LED digital screen complies in full with the statutory provisions contained in Ch 3 of the Industry & Employment SEPP, the Transport Corridor Outdoor Advertising and Signage Guidelines (November 2017) (the Guidelines) and Australian Standard 4282-2019 Control of Obtrusive Effects of Outdoor Lighting.

Safety

25. The Council and TfNSW accept, after assessment, that the proposal is unlikely to reduce the safety to the public road because the traffic risks associated with a digital screen are not materially different to the traffic risks associated with the existing sign. I am told that there are no crash-related risks linked to the existing sign in the crash data. Similarly, there are very few on-road cyclists in this area and off-road pedestrians and cyclists are protected by the kerb and fence. No sightlines for pedestrians and children are obscured by the proposal as the sign is elevated on the roadside. For those reasons, the parties are agreed that the change in pedestrian and cyclist safety risk associated with a digital sign replacement is considered to be negligible.

26. Section 3.16 of the Industry & Employment SEPP prescribes that a consent authority must not grant development consent to the display of an advertisement to which this section applies without the concurrence of TfNSW.

27. TfNSW provided its concurrence by letter on 8 June 2022 subject to conditions of consent that have been incorporated into the agreed conditions of consent.

28. Section 3.11(3) of the Industry & Employment SEPP applies to the DA and prescribes that if ss 3.16 or 3.22 applies to the DA, the consent authority must not grant consent unless arrangements that are consistent with the Guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement.

29. The relevant conditions of consent ensure that a public benefit is to be provided in accordance with the construction and display of the signage.

30. For these reasons I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, as such I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

31. The Court notes:

1. Wollongong City Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA-2021/435 filed with the Court on 3 November 2021 with the plans listed in Condition 1 of the Conditions of Consent provided as Annexure A.

2. The applicant has uploaded the amended development application on the NSW planning portal on 24 June 2022.

3. The applicant has filed the amended development application with the Court on 24 June 2022.

32. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application 2021/435 for the replacement of the existing vinyl skin advertising sign and the associated directional up lights (five in number) located along the underside of the sign with a digital screen in relation to Lots 1 and 2 in DP 387153, known as 325-327 Crown Street, Wollongong, subject to the conditions set out in Annexure A.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (355633, pdf)

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Amendments

30 June 2022 - Correction to [30].

Decision last updated: 30 June 2022