Jazar Investments Pty Ltd v North Sydney Council

[2023] NSWLEC 1172

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jazar Investments Pty Ltd v North Sydney Council [2023] NSWLEC 1172

Hearing dates:

Conciliation conference on 12 April 2023

Date of orders:

12 April 2023

Decision date:

12 April 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

In relation to proceedings 2022/160129, the Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order contained at Annexure A is substituted for the Development Control Order issued by the Respondent to the Applicant, being Development Control Order No. BCM2 dated 12 May 2022 , issued pursuant to section 9.34 and Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 in relation to the property at 271 Pacific Highway, North Sydney.

In relation to proceedings 2022/361426, the Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,000.00 within 21 days of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA315/22 for the continued use of signage and proposed signage strategy associated with licensed premises at 271 Pacific Highway, North Sydney subject to the conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – APPEAL – development control order – advertising and signage on heritage pub – conciliation conference – agreement reached in both appeals – orders made granting development application – orders made to substitute development control order with a remove advertising order

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.18, 9.34, Sch 5, Pt 1, Div 9.3

Environmental Planning and Assessment Regulation 2021, cll 37, 38

Land and Environment Court Act 1979, s 34

North Sydney Local Environmental Plan 2013 cl 5.10

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

Category:

Principal judgment

Parties:

Jazar Investments Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/160129
2022/361426

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Union Hotel in North Sydney (the premises) is a heritage item, and is owned by Jazar Investments Pty Ltd (Jazar). Building work has been undertaken at the premises for the installation of 60 signs, without the benefit of development consent for that work. On 12 May 2022 North Sydney Council (the Council) issued a development control order requiring the demolition of those signs. On 17 October 2022, Jazar lodged a development application for a proposed signage strategy including the continued use of some of the existing signage. Two appeals are now before the Court. The first is an appeal against the development control order (the order appeal). The second is an appeal following the expiry of the period after which a development application is deemed to be refused (the development appeal). In each appeal, the final orders, which are set out below at [19] and [21], are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The development control order the subject of the order appeal requires the applicant to demolish 60 signs that have been erected at the premises. The order was issued by North Sydney Council pursuant to Div 9.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) and Pt 1 of Sch 5 to the Act. Section 9.34(1)(a) allows a development control order to be given as a general order in accordance with the table to Pt 1 of Sch 5. Item 3 of Pt 1 of Sch 5 allows a Demolish Works Order, one type of development control order, to be issued to demolish or remove a building if the building “requiring a planning approval is erected without approval”. The applicant appeals against the order pursuant to s 8.18 of the EPA Act.

3. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged the development appeal pursuant to s 8.7 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

4. In both appeal proceedings, following an adjournment of the hearing, 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 12 April 2023. I presided over the conciliation conference.

5. At the conciliation conference, agreements under s 34(3) of the LEC Act were reached between the parties as to the terms of a decision in each of the appeal proceedings that are acceptable to the parties. The signed agreements were filed on the same date.

6. In the development appeal, the agreement was reached following the Council’s approval of an application for an amendment to the development application pursuant to cll 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments include the removal of general signage along the awning fascia on the southern and western elevation and its replacement with banding and “Union Hotel” signage, the replacement of black banding on the window signs on the southern and western elevations with, instead, gold lettering to be used for signage on the west elevation and window signage around a central existing opaque board on the south elevation, and the replacement of circular window signage on the eastern elevation with black banding along the top of each window. The amended development application retains the signage along the awning fascia on that eastern elevation. The decision agreed upon is for the grant of development consent to the amended development application, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

7. In the order appeal, the terms of a decision that is agreed upon is for the order to be substituted with a new order that requires that the applicant remove the signs that are not the subject of the development consent.

The power to make orders in accordance with the agreement on the development appeal

8. In the development appeal, the signed agreement is supported by an Agreed Statement on Jurisdiction. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents and the joint report of the experts filed on 5 April 2023, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

9. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for a purpose that is permissible with development consent, for the reason that it is ancillary to the use of the premises as a pub, which is a permissible use in the B4 Mixed Use zone, pursuant to the North Sydney Local Environmental Plan 2013 (NSLEP). The development application does not result in any breaches of a development standard that applies to the site pursuant to the NSLEP.

• The premises is a heritage item pursuant to the NSLEP and the effect of the development on the heritage significance of the heritage items has been considered, as required by cl 5.10(4) of the NSLEP. A Statement of Heritage Impact dated September 2022 accompanied the Class 1 Application and, in the joint report of experts that was filed on 5 April 2023, the heritage experts agree that the amended development application has no adverse impact with respect to heritage. Based on those documents, I am satisfied that the proposed development does not unacceptably impact the heritage significance of the heritage items.

• Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) applies to the proposal. Section 3.6 provides that a consent authority must not grant development consent to an application to display signage unless it is satisfied that the signage is consistent with the objectives in s 3.1(1)(a) and satisfies the assessment criteria in Schedule 5. Based on the Statement of Environmental Effects dated 6 October 2022, the joint report that was filed on 5 April 2023, the preliminary assessment of Electro Light dated 23 September 2022 and the road safety audit dated 6 October 2022, I am satisfied that the signage is consistent with the objectives in s 3.1(1)(a) of the SEPP IE and satisfies the assessment criteria in Schedule 5.

• The development application was notified for 14 days from 4 to 18 November 2022, and I have considered the submissions raised in response to the notification.

The power to make orders in accordance with the agreement on the order appeal

10. To make orders in accordance with the agreement on the order appeal, I must be satisfied that the decision to make orders to substitute the development control order with an order in the agreed terms is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act).

11. The proposed order with which the development control order is to be substituted is a Remove Advertising Order. Item 6 of Pt 1 of Sch 5 to the EPA Act allows a Remove Advertising Order to be issued to the owner of premises to “modify, demolish or remove an advertisement and any associated structure” in any of the following circumstances:

The advertisement is—

• unsightly, objectionable or injurious to the amenity of any natural landscape, foreshore, public reserve or public place at or near where the advertisement is displayed, or

• displayed contrary to a provision made by or under this Act, or

• associated with a structure erected contrary to a provision made by or under this Act.

12. The parties agree, and I accept, that there is power to issue a Remove Advertising Order in circumstances where development consent has not been obtained for the signage that will now be the subject of the order, and that the signage is therefore displayed contrary to the requirements of the EPA Act to obtain development consent.

13. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against an order. Those powers are as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

14. I am satisfied that the power under s 8.18(4)(c) is sufficiently broad to enable the Court to make orders to substitute the development control order the subject of the appeal with a Remove Advertising Order in the terms agreed by the parties.

15. I am therefore satisfied that the decision to make orders to substitute the development control order with a Remove Advertising Order is a decision that the Court can make in the proper exercise of its functions, for the reason that there is a statutory basis under Item 6 of Pt 1 of Sch 5 of the EPA Act to issue a development control order, and s 8.18(4) gives the Court the power, on the hearing of the appeal, to “substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given.”

16. In substituting the development control order with the Remove Advertising Order, with the agreement of the parties I have also modified the order to remove the third last paragraph that makes reference to a right of appeal to the Court, which has now been exhausted by the lodging of these appeal proceedings.

Final orders

17. Having reached the state of satisfaction that each of the decisions agreed upon are decisions that the Court could make in the exercise of its functions in each of the appeal proceedings, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

18. In making the orders to give effect to the agreement between the parties on the development application, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

19. In relation to proceedings 2022/160129, the Court orders that:

1. The appeal is upheld.

2. The Development Control Order contained at Annexure A is substituted for the Development Control Order issued by the Respondent to the Applicant, being Development Control Order No. BCM2 dated 12 May 2022, issued pursuant to section 9.34 and Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 in relation to the property at 271 Pacific Highway, North Sydney.

20. In relation to proceedings 2022/361426:

1. The Court notes that North Sydney Council as the relevant consent authority has agreed under clause 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application in accordance with the following documentation:

1. Amended Plans prepared by Design Collaborative:

DA 01 01	Cover and Location Plan	D	12/04/2023
DA 01 02	Site Plan	D	12/04/2023
DA 02 01	Proposed West Elevation – Pacific Highway	D	12/04/2023
DA 02 02	Proposed South Elevation – West Street	D	12/04/2023
DA 02 03	Proposed East Elevation – West Street	D	12/04/2023
DA 03 01	S1 – West Elevation Under Awning Signage Examples	D	12/04/2023
DA 03 02	S2 – S4 – West + South Elevation Window Signage Examples	D	12/04/2023
DA 03 03	S5 – South Elevation Window Signage Examples	D	12/04/2023
DA 03 04	S6 – South Elevation Under Awning Signage Examples	D	12/04/2023
DA 03 05	S7 – South Elevation Under Awning Signage Examples	D	12/04/2023

2. Supplementary Signage Strategy prepared by John Oultram Heritage & Design dated 4 April 2023,

and directs the Applicant file the amended documentation with the Court by 12 April 2023.

21. In proceedings 2022/361426, the Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $3,000.00 within 21 days of these orders.

2. The appeal is upheld.

3. Development consent is granted to development application DA315/22 for the continued use of signage and proposed signage strategy associated with licensed premises at 271 Pacific Highway, North Sydney subject to the conditions of consent at Annexure “A”.

J Gray

Commissioner of the Court

22.160129 (Annexure A) (200527, pdf)

22.361426 (Annexure A) (232749, pdf)

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Decision last updated: 12 April 2023