Korner v Council of the City of Sydney

[2009] NSWLEC 1154

Land and Environment Court

of New South Wales

CITATION:

Korner v Council of the City of Sydney [2009] NSWLEC 1154

PARTIES:

APPLICANT
Judith Korner

RESPONDENT
Council of the City of Sydney

FILE NUMBER(S):

11212 of 2008; 10117 of 2009

CORAM:

Murrell C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Signage: impact on heritage item, streetscape, and conservation area; proliferation of signage.

LEGISLATION CITED:

Land and Environment Court Act 1979
Sydney Local Environmental Plan 2005
Sydney Development Control Plan 2005
Urban Development Plan for Ultimo Pyrmont Precinct 1999

CASES CITED:

Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING:

30 March 2009

EX TEMPORE JUDGMENT DATE:

30 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Bennett (solicitor)
SOLICITOR
Pikes Lawyers

RESPONDENT
Mr M Fozzard (solicitor)
CITY PROSECUTOR'S OFFICE
Council of the City of Sydney

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 March 2009

11212 of 2008 Judith Korner v Sydney City Council
10117 of 2009

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 These proceedings commenced on site as a s 34 conciliation conference and the parties subsequently consented to me adjudicating this matter under s 34(4) of the Land and Environment Court Act.

2 With the leave of the Court the applicant provided an amended application for the signage sought to the building known as No. 1 Union Street, Ultimo which is on the south eastern corner of Paternoster Row and Union Street.

3 By way of background the Court had the opportunity on site this morning to understand the character of the area. The site is located in a heritage conservation area and the subject building is a heritage item

4 There are two related appeals to these proceedings. The first appeal is in respect of an Order issued by the City of Sydney Council to the applicant; that is Appeal No. 11212 of 2008 for unauthorized signage on the building.

5 As is the general course within this Court the applicant submitted a development application to regularise the usage of the signage and this is Appeal No. 10117 of 2009. The council attached conditions that require the removal of certain signs that were submitted in respect of the development application.

6 The subject site has been the premises of Madam Korner since approximately 2002. A development application was approved by the City of Sydney Council for use of the subject premises as a beauty salon and college on the subject site.

7 The council has provided the Court with its regime of planning instruments. The Sydney Local Environmental Plan 2005 zones the subject site residential business zone and the residential business zone allows for uses consistent with the zone objectives and these include:

to promote a wide range of uses particularly business development within the Ultimo Pyrmont area, to accommodate residential development, to accommodate uses which generate employment, to ensure that the total of employment generating development is compatible with the area, to encourage sustainable transport modes.

8 In particular, of relevance the respondent noted, “to limit advertising to a level compatible with the creation of a high quality residential rea”. As such, “consent is to be granted to development within this zone only if the consent authority is satisfied that carrying out the development will be consistent with the planning principles of Ultimo Pyrmont. particularly residential provision and amenity”.

9 The planning principles for Ultimo Pyrmont contained in Part 2 provide for consideration in terms of heritage as follows:

the items and areas of heritage significance in Ultimo Pyrmont are to be conserved and enhanced; new development is to compliment the character of heritage items and conservation areas; the re-use of heritage buildings through adaptation and modification is to be encouraged.

10 The LEP also contains a number of aims and objectives, strategies and principles..

11 Part 3, with respect to advertising, states at cl 91, “On land in the residential business zone advertisements not related to use of the site are prohibited unless they are displayed on public street furniture”, The general requirements for signage come under the Signage and Advertising Structures City of Sydney Development Control Plan 2005 and the DCP has a general strategy in that,

Appropriate signs identify and promote institutions, businesses and buildings as well as communicate messages. Well designed signs contribute to streetscape character and assist people finding their way around the city. Inappropriate signs whether by way of location, poor quality design, excessive number of signs within an area or excessively large signs can create visual and physical clutter, degrade the character of streetscapes and reduce the efficiency of other appropriate signs.

12 There are a number of objectives which include:

• To ensure that all advertising achieves a high level of design quality in terms of its design and its relationship to the architectural design of buildings and character of streetscapes;
• to promote signs which compliment the architectural style of buildings and to promote signs which compliment the use of buildings;
• to encourage suitably located signs that provide a legible and clear message through the use of high quality materials and design;
• to ensure that the use of” but does not adversely impact upon the local streetscape.

13 The general location and design of signs is provided in 2.4 and this includes;

• To consider existing signs in a building site or adjoining streets;
• to ensure new sign design does not give rise to visual and/or physical clutter; and,
• not contain additional advertising promoting products or services than that approved for the uses. There are a number of examples for identification signs which is, “to encourage well designed and suitably located signs which identify the tenants of buildings.

14 Section 3.2 contains a number of examples of different signage including a vertical projecting wall sign that is attached to the side of buildings in a vertical location. Also there are horizontal projecting wall signs, under awning signs and above awning signs. Other identification signs are under 3.9. and include that to banners, flags and other fabric signs are generally not appropriate for identification signs being more suitable for promoting temporary special events.

In the rare situation where a fabric sign is appropriate as an identification sign, the consent authority will consider the design excellence of the sign and whether it meets all the objectives of s2.

15 In terms of non projecting ground level wall signs, 3.7.2 is relevant, “Other signs at ground level are generally not permitted including signs on window and glass, whether internal or external. A wall plaque may be located next to the entrance”. The number of signs is referred to in 3.10, “The maximum number of identification signs generally permitted… three building name signs, a maximum of two signs but no more than one sign per elevation

16 The signs in conservation areas and heritage streetscapes is referred to under s 6 and corporate identification is permitted in these areas where the corporate design is compatible with the character and design of the building.

17 For signs on heritage items, under s 5, “Heritage items and signs with heritage value in the City of Sydney have special significance. The design and location of signs on or near such items must be carefully considered to achieve a very high degree of compatibility with the heritage significance of the building or streetscape so as not to detract from that significance. In some cases the heritage significance of an item may not allow for any signage or only limited opportunities and the objectives include: to encourage signs appropriate to the heritage item, to prevent inappropriate signs on heritage buildings and all signs on a heritage item are to be consistent in design with the architectural form and of a high standard”. There are a number of examples within the section to show signage including bracket style signs and brass plaques at ground level.

18 The Court, was also taken to the Heritage Development Control Plan, City of Sydney 2006. Whilst it is a relevant matter for consideration, there is nothing in particular that the Court was taken to although I recognise it must be considered in an assessment of the development application. Under the heading ‘Changes to Building Elements’ within this DCP there are a number of objectives including to minimise interference to the original form of the building and the original building elements and protect and not overwhelm the scale and architectural integrity of existing buildings.

19 The Urban Development Plan for Ultimo Pyrmont Precinct 1999 was provided and this also contains a number of guidelines for signage. The principal being,

Signage must reflect and contribute to the character and amenity of a street or locality and act as a unifying element. Signage must compliment the architecture and scale of the building and should, wherever possible, be integrated within the design of the building. Advertising must relate to the use of the site.

20 The controls include; “visual clutter should be avoided by paying careful attention to the location and number of signs on a building”.

21 The development application, as originally submitted to the council, was amended and the Court gave leave for the amendments to be the subject of these proceedings. The development application, as submitted to the council, provided for a banner sign near the chamfered corner of Union Street and Paternoster Row and this is of a hot pink colour with black writing. The applicant amended the banner sign to be some thirty per cent smaller than the existing sign and also to be of a white/cream background with “Madam Korner” written longitudinally.

22 The other amendment the applicant provided was for the signage in the windows and it was agreed at the end of the day that the photographs or pictures on the mesh inside the windows of the heritage building that is currently there are six such photographic or graphic representations on the Union Street frontage and three along the Paternoster Row frontage; the three lower panes on the Paternoster Row. On the Union Square there are three photographs on the lower panes and writing on the upper panes of those windows. It was agreed by the council that the three signs below the windows and indented into the masonry work of the heritage building could remain and they are also replicated on the Paternoster Row frontage. These read, “Madam Korner Skincare”, “Madam Korner Treatments”, “Madam Korner College”.

23 With respect to the two signs attached to the masonry sides of the chamfered corner on either side of the doorway, the applicant has agreed that these be in a clear Perspex or of a clear nature attached to the building such that the writing would read against the colour of the building. On the awning over the chamfered corner, it has the name, “Madam Korner”.

24 Ms Kate Wedgewood, an officer of the council, provided expert evidence and assessed the development application and provided a statement to the Court. Mr Kerry Nash, a consultant planner, provided a statement of evidence to the Court for the applicant. Concurrent evidence was also given to the court and the experts differ in that Mr Nash is of the opinion that the banner sign should be allowed to provide for identification of the building in particular for Union Square, especially when approached from Pyrmont Street. Ms Wedgewood is of the opinion that banner signs should not be allowed on heritage buildings and she was also of the opinion that as a fixed sign on the side of the building should not be allowed on this heritage building either.

25 Mr Nash is of the opinion that the banner sign is an appropriate lightweight form of signage that will identify the building and the business and that if a vertical projecting wall sign was on the side of the building would be a much heavier sign that would detract from the heritage of the building and it would also impact on the heritage of the building. In his opinion the banner as proposed is preferable to a vertical projecting wall sign.

26 With respect to the graphics and pictures photographs within the windows on the mesh solar control panelling at the back of the windows, on the internal side of the windows, the experts also disagreed. Ms Wedgewood considers this contributes to visual clutter and proliferation of signage and is not necessary and takes away from the heritage. Mr Nash, on the other hand, describes it as visual interest and stimulation as one walks along the street.

27 By way of background, the area can be described as a pedestrian plaza known as Union Square in front of the subject building, is on the Union Street elevation. The area is also a conservation area and there are a number of heritage items in the vicinity. Directly opposite the subject site in Paternoster Row there is a row of heritage terraces and opposite the site in Union Street there are also heritage items.

28 Generally within the area one could see that there was not a proliferation of signage as such. On the Harris Street corner of Union Street on the north western corner, there is a building which provides for an orange and black identification sign that protrudes from the chamfered corner of that building and there are also two other signs to identify the business. The Commonwealth Bank also had an illuminated sign. One could see that some of the other businesses in the area had their windows with either displays or writing to depict the services provided.

29 The Court has given genuine consideration to the DCP and indeed in terms of Zhang v Canterbury City Council [2001] NSWCA 167 the Court of Appeal judgment the Chief Justice of New South Wales commented that development control plans must be the focal point for assessment. However, they are discretionary and they are not mandatory and one must assess the development application having regard to the guidelines within the DCP. It is noted that the council considers that the banner should not be allowed as it is contrary to the DCP and clearly in S 3.9.3 banners and flags and other fabric signs are generally not appropriate for identification signs. As such, in the circumstances of this case, I must consider whether it is appropriate for a banner sign, having regard to the heritage significance of the building and having regard to the need to marry the need to identify a business.

30 The council contends that a business should not necessarily be able to be identified from all directions in all places in the LGA. The applicant, on the other hand, considers that a business requires for commercial purposes identification to alert persons to its location in terms of passers-by as well as those that have a destination for that business. I am of the opinion that it is appropriate and it is within the spirit of the DCP to allow for commercial uses of heritage buildings and clearly this must be balanced against impact on heritage buildings.

31 In the circumstances of this case and having regard to the DCP provisions, I am of the opinion that the banner should be allowed in the form that has now been submitted or proposed by the applicant; that is a banner to replace the existing banner that would be of a smaller size, some thirty per cent smaller in size and of a white/cream background with writing to depict or to be sympathetic to the writing that one also sees on the other signage on the building. I say this because it is a lighter weight structure than if it were allowed as a vertical projecting wall sign. I do not consider in the circumstances of this case a vertical projecting wall sign would be appropriate for this heritage item that has been restored at significant cost to the applicant. In contrast the proposed lightweight sign is an appropriate addition to identify the business, in particular when one approaches from Pyrmont Street. Going in a westerly direction along Union Street, one would have to be upon the business before one realises that they have arrived at the subject premises. The banner provides for a simple sympathetic addition to the building which more clearly identifies the business than any of the other signage on the premises. It also assists when approaching from the western side, whether it be Harris Street and in its context it is an appropriate simple form of advertising and effective.

32 The council did not take issue with the six indented signs under the windows of the façades. The signage on either side of the front door is not objected to either by the council provided its colour background is changed to something that is more passive; that is so one can see the render of the building behind the signage.

33 With respect to the graphics/ photographs and the writing. The applicant has already stated that the writing is not pressed in the upper panes of the Union Street windows and clearly this would provide for unnecessary clutter and proliferation of signage within the area, whether it is readily readable or not.

34 With respect to the graphics, I have been persuaded by council’s planner that the graphics are unnecessary and contribute to the visual clutter. In my assessment, having regard to the provisions of the DCP and the heritage provisions, the graphics are not sympathetic to the heritage item or the conservation area. One must look at it in the context of what one sees in the area and there has been a clear effort to ensure that there is a rationalisation of signage in the area. The graphics could not be described as anything but signage to promote the business and with the number of signs already on the building, most of them small, I do not consider that the large graphics/photos in the windows are appropriate to this heritage conservation area on the basis of the merits of the application.

35 Not determinative in my consideration but a matter that can be considered is precedent. Clearly this would not represent a good precedent for a heritage conservation area to allow large graphics in the windows of all the heritage buildings and six graphics on this one building is, in my opinion and in my assessment, visual clutter and proliferation of signage detracting from the heritage building and conservation area. I do not accept that it is providing visual interest. Whilst there might be some visual interest, there is a fine line between what is visual interest and what is visual clutter and the number and size of these graphics on this building in my assessment is overwhelming and not conducive to a heritage conservation area and the objectives of same.

36 The identification of the business is important and I am of the opinion that the banner is appropriate to clearly identify this building. The other signs, as I stated, are rather small in nature and do not provide for a clear identification of the building and it is only reasonable, given the council’s objective to encourage businesses within heritage buildings, that they be able to clearly identify themselves to the public.

37 On the basis of my assessment above, the Orders of the Court in respect of the s 121 order appeal is that the banner, as shown in the amended development application, is allowed however the graphics in the windows are to be removed.

38 Accordingly the formal Order for the s 121 appeal reads as follows:

1 Remove the advertising signs applied to the ground floor glass windows along Union and Paternoster Row;
2 The banner displaying “Madam Korner” on the Union Street elevation is to be altered such that it is some two thirds of the size and of a neutral background colour in accordance with the development application;

3 The two plaques adjacent to the entry are to be modified in accordance with the photo montage as appended to the Nash report dated 23 February, namely the signs are to be of dark or black letter on clear Perspex.

39 For the development application Appeal No. 10117 of 2009 the formal Orders of the Court are:

1 The appeal in respect of the property known as number 1 Union Street, corner of Paternoster Row, Ultimo is upheld in part;
2 The development application submitted to the City of Sydney Council and as amended and shown in exhibit C is determined by the granting of consent to the banner sign as shown in that exhibit and the refusal for consent of the graphics in the windows along the two elevations;
3 The exhibits are returned to the parties with the exception of C.

___________________

J S Murrell
Commissioner of the Court
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