Kinsgford Car Wash Pty Limited v Willoughby City Council

[2002] NSWLEC 215

Land and Environment Court

of New South Wales

CITATION:

Kinsgford Car Wash Pty Limited v Willoughby City Council [2002] NSWLEC 215

PARTIES:

APPLICANT
Kingsford Car Wash Pty Limited

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

(1)0127 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Appeal :- challenge to validity of council order

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 121B
State Environmental Planning Policy No 64

CASES CITED:

Willoughby City Council v Sahade & Ors [2002] NSWLEC 214

DATES OF HEARING:

31/10/2002

DATE OF JUDGMENT:

12/12/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Sahade (Barrister)

SOLICITORS
Comino Prassas

RESPONDENT
Mr P Clay (Barrister)

SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0127 of 2002

COWDROY, J

12 December 2002

KINGSFORD CAR WASH PTY LIMITED

Applicant
v

WILLOUGHBY CITY COUNCIL

Respondent

Judgment

1 By application class 1 filed on 17 May 2002 the applicant appeals against an order issued by Willoughby City Council (“the council”) dated 1 May 2002 pursuant to s 121B of the Environmental Planning and Assessment Act 1979 which required the applicant to “Remove the prohibited trailer top advertising sign and associated structure”.

2 By notice of motion filed on 2 August 2002 the applicant sought various declarations. It is to be observed at the outset that such relief cannot be entertained in class 1 proceedings.

3 By notice of motion filed on 6 September 2002 the council sought an order that the application class 1 be dismissed. Subsequently the parties agreed that the applicant’s notice of motion dated 1 August 2002 and the council’s notice of motion dated 6 September 2002 be adjourned to the hearing of the appeal which was listed for the same day as proceedings No. 0409 of 2002.

4 The Court has delivered judgment in respect of the claim for injunctive relief by the council in proceedings No. 0409 of 2002 (see Willoughby City Council v Sahade & Ors [2002] NSWLEC 214). In its judgment the Court determined that the conduct of the applicant in parking the subject trailer on the streets of the Willoughby local government area was unlawful.

5 In his evidence Mr Gerard Timbs, Senior Development Enforcement Officer for the council, referred to the provisions of State Environmental Planning Policy No. 64 – entitled “Advertising and Signage” (“SEPP 64”). Schedule 1 of SEPP 64 lists eight assessment criteria which must be satisfied before consent will be granted for signage. Clause 8 of SEPP 64 relevantly provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied that the signage complies with the assessment criteria specified in Schedule 1.

6 Mr Timbs’ evidence establishes that the applicant’s signage is inconsistent with the residential character of Ellis Street and therefore contrary to criterion 1 of Schedule 1. Further the advertising structure detracts from the amenity and visual quality of the residential area contrary to criterion 2 of Schedule 1. The advertisement is also contrary to criterion 4 of Schedule 1 because the sign is unsightly. The advertisement does not relate to the site on which it stands contrary to criterion 5 of Schedule 1 and is contrary to criterion 8 thereof because of safety issues.

7 Council has adopted Development Control Plan No. 20 entitled “Development Control Plan for Advertisements and Advertising Structures”. Clause 1.5 entitled “Prohibited Advertising”, relevantly states:-

Council will generally not consent to the following types of advertisements and advertising structures:
(a) [not relevant]
(b) Advertisements attached to parked motor vehicles and trailers, in accordance with the Department of Urban Affairs and Planning Controls for Outdoor Advertising, Best Practice Guidelines 1995.
(c) [not relevant]

8 There is no provision of Development Control Plan No. 20 which assists the applicant, and the evidence adduced by the applicant does not establish a case to warrant the setting aside of the order of the council dated 1 May 2002.

Orders

9 The Court orders that the application class 1 filed 17 May 2002 be dismissed.

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