LDC Opco Holding Company Pty Limited v North Sydney Council

[2020] NSWLEC 1352

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

LDC Opco Holding Company Pty Limited v North Sydney Council [2020] NSWLEC 1352

Hearing dates:

2-3 July 2020 and 18 August 2020

Date of orders:

25 August 2020

Decision date:

10 August 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The application to modify Development Consent No. 92/05 is approved, subject to the wording of Condition A2 that is now modified to read:

“This consent shall cease to be in force on the expiration of 15 years after the date that the orders made by the Land and Environment Court in proceedings no. 2020/71383 take effect, being 26 August 2020. Should the owner of the site wish to extend this period, an application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.

(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour).”

(3) All Exhibits are returned, except for Exhibits B and 5.

Catchwords:

MODIFICATION APPLICATION – whether the application is substantially the same – State Environmental Planning Policy No 64 – Advertising and Signage – consistency with the character of the local area

Legislation Cited:

Civil Procedures Act 2005

Environmental Planning and Assessment Act 1979

North Sydney Local Environmental Plan 2013

Standard Instrument – Principal Local Environmental Plan

State Environmental Planning Policy No 64 – Advertising and Signage

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council Doering v Pittwater Council 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

Arrage v Inner West Council [2019] NSWLEC 85

Benmill Pty Ltd v North Sydney Council (No 2) [2020] NSWLEC 44

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

LDC Opco Holding Company Pty Limited (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
I Hemmings SC and A Hemmings (Applicant)
T To, and C Drury on 20 August 2020 (Solicitor) (Respondent)

Solicitors:
Corrs Chambers Westgarth (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2020/71383

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of modification application DA92/05/6 in relation to an extension of time-related consent for rooftop signage on land at 55 Lavender Street, Milsons Point (the site).

2. In particular, the application seeks to modify Condition A2 of Development Consent No. 92/05 in order to provide for further extension of fifteen (15) years to the life of the consent such that it would expire on 26 August 2035.

3. It is helpful to state at this point that the sign the subject of the modification application says ‘PLATINUM’, and is affixed to a mixed use building otherwise known as ‘Latitude’ which, in part, gives rise to the grounds on which the appeal is brought.

The site and its context

4. A 22-storey building with 3 levels of basement car parking occupies the site which is on the south-eastern corner of Lavender Street and Harbourview Crescent in Milsons Point and is legally described as Lot 118 in SP 77787.

5. The building was constructed as a commercial office building in or around 1972, and was later converted to the current mixed use building in or around 2006.

6. Most relevantly, at the top the building on the northern and southern elevations are two illuminated signs that each display the word ‘Platinum’, along with a logo that may be simply described as a circle within a pentagon.

7. The site is located within the B4 Mixed Use zone as identified in the North Sydney Local Environmental Plan 2013 (NSLEP), and is within the Milsons Point Town Centre, within the Lavender Bay Planning Area under the North Sydney Development Control Plan 2013 (NSDCP).

8. Milsons Point Town Centre comprises residential, mixed use and commercial buildings, a church and public open space adjacent to the Sydney Harbour Bridge, along the eastern side of Alfred Street.

Chronology of applications on the site

9. On 17 November 2003, consent was granted for Development Application 23/03 (DA23/03) for the conversion of the existing commercial building into a mixed use development comprising commercial and residential uses. The proposal included strata subdivision; extension to the top level plant room; and, of four existing signs, the removal of two rooftop illuminated advertising signs at the eastern and western facades and refurbishment/relocation of the other two signs with free standing letters at the northern and southern facades.

10. Consent was conditional and required, at Condition A5, removal of the rooftop sky signs prior to occupation of the approved works.

11. On 9 March 2005, Development Application No 92/05 (DA92/05) sought consent for the erection of two illuminated building identification signs and works to roof area of approved, but yet to be occupied, mixed use building and creation of strata lots. The consent was in the following relevant terms (Exhibit 2, folio 1):

“Pursuant to Section 81 of the Act, notice is given that Development Application No. 92/05 proposing erection of two illuminated building identification signs and works to roof area of approved, but yet to be occupied, mixed-use building, and creation of signage strata lots on land described at 55 Lavender Street, McMahons Point was determined by Council at its meeting of 22 August 2005 by the granting of consent subject to the conditions below.

…”

12. The only condition relevant to these proceedings is found at Condition A2 which is in following terms (Exhibit 2, folio 2):

“Time-limited consent

A2. This consent shall cease to be in force on the expiration of 10 years after the date on which the consent becomes effective and operates in accordance with Section 83 of the Environmental Planning and assessment Act 1979. Should the owner of the site wish to extend this period, a new development application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any future lease agreements for the new signage lot.

(Reason: To satisfy the provisions of SEPP No. 64 – Advertising and Signage)”

13. At this time, the proposed signage consisted of the word ‘SHARP’ on the top level of the building at the northern and southern elevations, illustrated in drawings contained at Exhibit 2, Tab 1A.

14. On 25 October 2005, a modification application was lodged (DA92/05/2) to replace the SHARP sign, which had been approved in the form of two large ‘light boxes’ with ten light boxes forming the individual letters.

15. On 21 December 2005, the Respondent granted consent to DA92/05/2 and modified the terms of Condition A1 to identify the relevant plans and other documents prepared in support of the modification application. All other conditions attached to the original consent at [11] were retained without amendment (Exhibit 2, Tab 3).

16. On 8 September 2006 a modification application was lodged (DA92/05/3) to modify condition A2 of the consent to extend the timeframe of the consent from 10 years to 15 years (Exhibit 2, folio 20).

17. According to the Applicant, the assessment report prepared by the Council in response to DA92/05/3 relevantly considered the nature of the sign as defined by the State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64) in the following terms:

“The original consent defines the structures as a “Building Identification Sign”, as separate from a “roof or sky advertisement”, as the structures were not considered to be advertisements and therefore were considered solely under Schedule 1 of SEPP No.64. It is important that this is noted, as Under Section 3, “roof or sky advertisements” are limited to a consent period of 10 years. This limitation does not apply in this instance.” (Exhibit 2, folio 24)

18. Additionally, the assessment report considered the application of cl 14 of SEPP 64 which stipulates that the duration of consent for signage is 15 years unless the Council had adopted a policy prior to the commencement of that Part of SEPP 64. The assessment report concludes relevantly:

“…

In relation to subclause (a), there is no Council policy predating the adoption of this part of SEPP No.64 restricting the period of consent for signage to less than 15 years, and therefore this clause is not applicable in this instance.

…

In relation to subclause (c), as previously discussed in this report, the original consent for the signage recognised it as being a “building identification sign” and therefore not subject to assessment under Section 3 of SEPP No.64. Therefore the limitation of “roof or sky advertisements” to consent duration of 10 years is not applicable in this instance. Therefore subclause (c) is not applicable in this instance.” (Exhibit 2, folio 24)

19. On 21 September 2006, the Respondent granted consent to DA92/05/3, and inserted Condition A2 in its present form and as contained in Exhibit 2, folio 28. The condition reads, relevantly:

“This consent shall cease to be in force on the expiration of 15 years after the date on which the consent becomes effective and operate in accordance with Section 83 of the Environmental Planning and Assessment Act 1979. Should the owner of the site wish to extend this period, a new development application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.

(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour).”

20. On 23 December 2016, a modification application was lodged to modify consent DA92/05 so as to remove the time limitation on the sign at Condition A2 attached to the consent for DA92/05/3. The Respondent determined to refuse the modification application (Exhibit 2, folios 87-89).

The issues

21. The issues in this case centre on an application to modify Condition A2 attached to the consent granted in respect of DA92/05 and which limited the consent applicable to the sign to 10 years after the date on which the consent became operative. As stated at [19], Condition A2 was modified on 21 September 2006 to extend the time limitation by a further 5 years after the date on which the consent became operative.

22. The backgrounds facts are contained in the Statement of Facts and Contentions marked Exhibit 1, and the contentions may be summarised as follows:

• Contention 1 – The proposed modified development is not substantially the same as the development for which consent was originally granted.

• Contention 2 – A 15-year extension to the time limit for display of signage at roof level is inconsistent with the existing and desired future character of the area.

• Contention 3 – The application is not in the public interest, by reason of Contention 2, and as it would set an undesirable precedent for inappropriate signage on a now consistent Milsons Point Town Centre skyline.

The Respondent seeks to amend the contentions

23. During the proceedings, Mr To, counsel for the Respondent, sought leave of the Court to amend the contentions as set out in Exhibit 1 to the effect that adverse impacts on the amenity of surrounding apartments negates any public benefit provided in connection with the display of an advertisement with reference Schedule 1 as required by cl 13(2)(b)(iii).

24. The Respondent’s application for leave was opposed by the Applicant on the grounds that further expert evidence would need to be obtained in order to address the matters set out in Schedule 1, and which had not been identified by the Respondent prior to the hearing.

25. Furthermore, as the expiration of the consent for the signage the subject of the modification application occurs on 26 August 2020, the Applicant would be prejudiced by any further delay in proceedings.

26. For the reasons that follow, I declined to grant leave for the Respondent to amend the contentions:

1. Firstly, the Statement of Facts and Contentions was filed with the Court on 27 April 2020, which is some time after the receipt of public submissions in response to the notification undertaken between 17 January 2020 and 31 January 2020, and after which the Respondent had not an insubstantial opportunity to seek leave by Notice of Motion prior to the hearing to further amend the Statement of Facts and Contentions. It chose not to do so.

2. Secondly the nominated experts have conferred on the contentions and particulars prepared by the Council, which excludes the contention now proposed and in respect of which an adjournment would necessarily follow to allow appropriate consideration of the same.

3. Thirdly, given that it is the time-limited condition that is the subject of the proceedings, I consider the disposal of the matter in a manner that is consistent with the Court’s overriding obligation for proceedings to be just, quick and cheap as set out in s 56 of the Civil Procedure Act 2005 to be a significant consideration.

Public submissions

27. Prior to the hearing, the Respondent advised the Court that in addition to written submissions, two objectors wished to address the Court and so were provided with the details to join the hearing via Microsoft Teams (MS Teams).

28. I granted leave for the objectors to join the proceedings via MS Teams. The objectors included:

1. Mr Bernard Smith is a resident of McMahons Point and spoke on behalf of the Lavender Bay Precinct Group. The submission made by Mr Smith may be summarised as follows:

• The subject sign is the only illuminated roof level sign visible in the area, and is visible from private properties, in addition to the assessment of views undertaken from public property.

• The signs have an adverse visual impact that would be improved with its removal.

2. Ms Joycelyn Morton is a resident of Unit 602/55 Lavender Street, and spoke on behalf of the Owners Corporation at 55 Lavender Street, known as ‘Latitude’. Ms Morton’s submission may be summarised as follows:

• ‘Latitude’ has a high proportion of owner-occupiers and the Owners Corporation has given its authority for the objection to be made.

• While the building contains 6 offices, the commercial use associated does not intrude into the residential character of the building.

• However, the sign does affect the residential character of the building in Milsons Point and shines into the bedrooms and living rooms of adjoining buildings.

• Unlike what is suggested by the Applicant, the building does not visually merge into North Sydney, but is distinct in its location as a part of Milsons Point.

• The owner of the Signage Lot is derelict in meeting its obligations under the strata by-laws which require annual certification of the structural integrity of the sign, and is late with strata levies.

The Respondent seeks an onsite view

29. The Respondent submitted to the Court that as Contention 2 relates to the question of the character of the Milsons Point area, an onsite view would assist the Court to consider the signage in context. Furthermore, as the signs are illuminated, any onsite view should be conducted after sunset.

30. The Applicant objected to the onsite view as the relevant contention was not one in which visual impact was raised, and that the late submission by the Respondent had prevented the availability of the relevant experts, afterhours, from being confirmed.

31. It is relevant to record here that the matter was listed for hearing in the context of the Court’s COVID-19 Pandemic Arrangements Policy (March Pandemic Policy), which took effect on 23 March 2020. Consistent with the Court’s approach to avoid in-person appearances, objector submissions were reduced to writing, and no onsite view was set down.

32. However, on the eve of the hearing, the Court published an updated COVID-19 Pandemic Arrangements Policy on 1 July 2020 (July Pandemic Policy) that set out arrangements for the staged return to face-to-face attendances in Court and on-site, commencing 8 July 2020.

33. For the reasons that follow, I directed that an onsite view should be undertaken at the conclusion of the first day of the hearing, commencing at 6pm:

1. Firstly, the Court has traditionally viewed it to be important to visit a site in order to see the site in context, and to assist in a more complete understanding of expert evidence in respect of the site and its context;

2. Secondly, while the July Pandemic Policy had yet to commence, it provides for the staged return to in-person onsite views where appropriate social distancing measures can be assured. Given the limited number of persons required for the onsite view, I was comfortable that appropriate measures were possible that would not place the health and welfare of participants at risk;

3. Thirdly, as both parties rely upon images of particular views in material before the Court, the number and location of particular viewing points were essentially agreed;

4. Fourthly, as the signs are illuminated, a number of the images are taken after sunset where the amount of available light appears to limit the assistance they provide.

34. Following the conclusion of the first day of the hearing, I attended the onsite view along with Mr To, Ms Leung and Mr Donovan, in his capacity as instructing officer and not as an expert, for the Respondent, and Ms Hemmings and Mr Newman for the Applicant.

35. In the company of the above, I was taken to the following locations between 6pm and 7pm on 2 July 2020, which being less than 2 weeks after the winter solstice, may be said to be ‘after dark’:

• View L6, Ridge Street Lookout, as identified in the Character Statement and Visual Impact Assessment prepared by GMU Architecture, later marked Exhibit D.

• View points 19, 15, 16, 8 and 9 (as numbered according to the sequence of the onsite view), as identified in the North Sydney Council, Platinum Signs Photographic Survey & Commentary prepared by Mr David Moir as Attachment 2 to the joint expert urban design report, marked Exhibit 4.

Expert evidence

36. As the issues in dispute relate primarily to questions of town planning and urban design, the Court was assisted by experts in those fields as follows:

1. Mr Luke Donovan, for the Respondent, and Mr Andrew Duggan, for the Applicant, conferred on matters of town planning and prepared a joint expert report marked Exhibit 3.

2. Mr David Moir, for the Respondent, and Ms Gabrielle Morrish, for the Applicant, conferred on matters of urban design and prepared a joint expert report marked Exhibit 4.

37. Mr Hemmings SC, counsel for the Applicant, objected to Mr Moir being considered an expert in respect of matters set out in Contention 2. In particular, and with reference to Mr Moir’s qualifications as a Landscape Architect and experience, Mr Hemmings submitted they were ill-suited to an assessment of character, visual impact and streetscape impacts.

38. Additionally, in cross-examination, Mr Hemmings submitted to Mr Moir that he did not possess formal qualifications in urban design or planning and his experience in visual impact assessment was primarily rurally-based.

39. Furthermore, Mr Hemmings questioned the reliability of Mr Moir’s evidence as some of the view points contained in Attachment 2 of the Exhibit 4 could not have been taken as indicated in the description.

40. On the basis of Mr Moir’s experience as an expert witness in respect of visual impact as set out in his CV, and qualifications as a registered landscape architect, which I understand to encompass competencies in environmental law, planning law and development approvals, I am satisfied that Mr Moir’s knowledge, skills and competencies are suited to the particular issues in respect of the urban setting and street interface.

37. That said, I accept that View Point 10 appears to be zoomed, possibly as a result of the original image being cropped, and then sized to fit the layout of the page. However, as the image is similar to the panorama taken from the same/similar viewing position at View Point 9, I consider the sizing of the subject building and its sign in View Point 10 to be of general assistance, and not one on which my finding is likely to rely.

Planning framework

42. Relevantly, signage is a use permitted in the B4 zone with consent.

43. The aims of the State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64) are, at cl 3, in the following terms:

3   Aims, objectives etc

(1)  This Policy aims:

(a)  to ensure that signage (including advertising):

(i)  is compatible with the desired amenity and visual character of an area, and

(ii)  provides effective communication in suitable locations, and

(iii)  is of high quality design and finish, and

(b)  to regulate signage (but not content) under Part 4 of the Act, and

(c)  to provide time-limited consents for the display of certain advertisements, and

(d)  to regulate the display of advertisements in transport corridors, and

(e)  to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.

(2)  This Policy does not regulate the content of signage and does not require consent for a change in the content of signage.

44. Part 2 of SEPP 64 deals with Signage generally, and Part 3 deals with Advertisements.

45. The SEPP 64 applies, at subcl 6(1), to all signage that:

…

(a)  can be displayed with or without development consent under another environmental planning instrument that applies to the signage, and

(b)  is visible from any public place or public reserve,

except as provided by this Policy.

Note.

Public place and public reserve are defined in section 4 (1) of the Act to have the same meanings as in the Local Government Act 1993.

…

46. The appeal relates to a modification application, and the application of cl 8 of SEPP 64 is contested. Clause 8 precludes the grant of development consent in the following terms:

8   Granting of consent to signage

A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:

(a)  that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b)  that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.

47. Clause 9, which the Respondent submits is applicable, is contained in Part 3 of SEPP 64, and is in the following terms:

9   Advertisements to which this Part applies

(1)  This Part applies to all signage to which this Policy applies, other than the following:

(a)  business identification signs,

(b)  building identification signs,

…

48. Of particular relevance in this case is how the sign is defined under SEPP 64. Clause 4 contains the following relevant definitions:

…

advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement.

…

building identification sign has the same meaning as in the Standard Instrument.

…

business identification sign has the same meaning as in the Standard Instrument.

…

roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.

…

49. The Dictionary of the Standard Instrument – Principal Local Environmental Plan (Standard Instrument) defines a “building identification sign” in the following terms:

building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services.

50. The Dictionary of the Standard Instrument defines a “business identification sign” in the following terms:

business identification sign means a sign—

(a) that indicates—

(i) the name of the person or business, and

(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and

(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,

but that does not contain any advertising relating to a person who does not carry on business at the premises or place.

Note.

Business identification signs are a type of signage—see the definition of that term in this Dictionary.

51. Clause 13 sets out the matters for consideration, and the circumstances in which consent must not be granted:

13   Matters for consideration

(1)  A consent authority (other than in a case to which subclause (2) applies) must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires:

(a)  is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b)  has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(c)  satisfies any other relevant requirements of this Policy.

(2)  If the Minister for Planning is the consent authority or clause 18 or 24 applies to the case, the consent authority must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires:

(a)  is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b)  has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and in the Guidelines and the consent authority is satisfied that the proposal is acceptable in terms of:

(i)  design, and

(ii)  road safety, and

(iii)  the public benefits to be provided in connection with the display of the advertisement, and

(c)  satisfies any other relevant requirements of this Policy.

(3)  In addition, if clause 18 or 24 applies to the case, 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.

52. Schedule 1 of SEPP 64, invoked in cl 8 and cl 13, contains assessment criteria that provides, relevantly:

Schedule 1 Assessment criteria

1   Character of the area

•  Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

…

53. According to the Respondent, the subject sign is greater than 20m² in area and the operation of cl 13 brings cll 17 and 18 into consideration and which provide, respectively:

17   Advertisements with display area greater than 20 square metres or higher than 8 metres above ground

(1)  This clause applies to an advertisement:

(a)  that has a display area greater than 20 square metres, or

(b)  that is higher than 8 metres above the ground.

(2)  The display of an advertisement to which this clause applies is advertised development for the purposes of the Act.

(3)  The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless:

(a)  the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(b)  the application has been advertised in accordance with section 79A of the Act, and

(c)  the consent authority gave a copy of the application to RMS at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies.

18   Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road

(1)  This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road.

(2)  The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of RMS.

(3)  In deciding whether or not concurrence should be granted, RMS must take into consideration:

(a)  the impact of the display of the advertisement on traffic safety, and

(b)  the Guidelines.

(c)    (Repealed)

(4)  If RMS has not informed the consent authority within 21 days after the copy of the application is given to it under clause 17 (3) (c) (ii) that it has granted, or has declined to grant, its concurrence, RMS is taken to have granted its concurrence.

(5)  Nothing in this clause affects clause 16.

(6)  This clause does not apply when the Minister for Planning is the consent authority.

The development the subject of the modification application

54. The parties agree that the consideration of the development the subject of the modification application starts with the original consent granted in August 2005 (DA92/05 Consent).

55. The DA92/05 Consent was for two illuminated ‘building identification signs’. As such, the characterisation conforms to a development defined in SEPP 64.

56. The DA92/05 Consent was then modified in September 2006, at which time the development the subject of the modification application was once again characterised as ‘building identification signs’.

57. According to the Applicant, I must not fall into error by seeking to freshly characterise the development for which consent was granted in DA92/05 as other than that characterised in the determination made at the time.

58. This is relevant as the Respondent considers the signage to ‘fall into the character of general advertising’, and so not answer the description of a building identification sign.

59. In support of which, Mr Donovan relies on images annexed to the joint report (Exhibit 3, Appendix 1, pp 3-12) that show advertisements placed in newspapers for what may be described as market investment services displaying the Platinum logo and name.

60. The Respondent submits that there is an ambiguity in the DA92/05 consent that must be resolved. The ambiguity arises as the DA92/05 consent is granted to a ‘building identification sign’, yet the consent is conditioned to expire after ten years, which is consistent with the terms of cl 21 of SEPP 64 applicable to roof or sky advertisements. Furthermore, the name and logo of ‘Platinum’ bears no connection to the building that is otherwise known as ‘Latitude’ or ‘Latitude Apartments’.

61. In light of the ambiguity, the modification application can only be understood from reading the consent as a whole, including the conditions of consent at Condition A2, which applies a time-limitation that is now the focus of the appeal.

62. When the consent to which the modification applies is read as a whole, the sign in question must be considered to be ‘advertising’ to which Part 3 of SEPP 64 applies because:

1. The time-bound conditions of consent, at Condition A2, are consistent with provisions found in Part 3 of SEPP 64 that only apply to advertising.

2. Part 3 of SEPP 64, from which Condition A2 evidently springs by virtue of its limitation, does not apply to building identification signs, but to advertisements including roof or sky advertisements.

3. The sign does not have a connection to, or a relationship with the building in a manner that is consistent with the definition of a building identification sign. The sign reads ‘Platinum’, and yet the building is known either as ‘Latitude’ or ‘Latitude Apartments’ with no association to Platinum.

63. Even if I find that the subject sign is a building identification sign and so does not fall within the definition of ‘advertising’, the Respondent’s submission is, in effect that:

1. Firstly, while cl 8 does not directly apply to a modification application, the operation of s 4.55(3) of the EPA Act requires the Court to consider such matters as are relevant in s 4.15(1) of the EPA Act.

2. Matters that are relevant include, at s 4.15(1)(a)(i), environmental planning instruments such as SEPP 64.

3. Given the particular subject matter of the application, consistency with the aims and objectives of SEPP 64, and with the assessment criteria in Schedule 1 is required, as is subcl 8(a) and (b).

4. In the alternative, the Respondent submits that the Court is not constrained to only those considerations that are mandatory, but may consider any issues it considers relevant which would encompass the provisions of cl 8.

64. However, Mr Hemmings SC, counsel for the Applicant, submits that unlike the circumstances in Benmill Pty Ltd v North Sydney Council (No 2) [2020] NSWLEC 44 (Benmill), where Robson J held that ambiguity had to be found before recourse can be had to context, there is no ambiguity in the terms on which consent was granted in this case.

Is the application substantially the same development?

65. In considering this appeal, the Court exercises the functions of the Council in determining the modification application pursuant to s 4.55(2) of the EPA Act. Subsection 4.55(2) provides as follows:

(2) Other modifications

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with:

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

66. The exercise of the power in subs 4.55(2) requires the Court to be first satisfied that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted”.

67. If the Court is not satisfied, then there is no power to modify the consent, regardless of whether or not the application might be worthy of approval on its merits.

68. Upon reaching satisfaction that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted” and that the other matters in subs 4.55(2) are satisfied, subs (3) provides that:

In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

69. The Applicant relies on McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council Doering v Pittwater Council 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 (1643 Pittwater Road) at [51], to the effect that s 4.55 of the EPA Act constrains the Court’s power by limiting the discretion that may be exercised to those matters raised for consideration in the modification application.

70. The practical effect of which is that a modification application in respect of a time-limiting condition cannot invite the Court to re-characterise the original approval granted in respect of the building identification sign to that of advertising or, adopting the phrasing of his Honour in 1643 Pittwater Road quoting Mason P, it is not an opportunity to repent of an earlier decision.

71. Instead, I should be guided by Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85, at [25], with particular reference to the essential features and elements of the development, and not to the context or the circumstances of the consent, nor the conditions of consent.

72. According to the Applicant, a comparison of the features and elements of the originally approved and modified development must conclude the application is for a development that is substantially the same development for which consent was originally granted. Of particular relevance here, the Applicant does not seek development consent for a new use, or works associated with the sign.

73. Yet the Respondent submits that it is precisely the time-limitation, or ‘temporality’, that is the essential feature or element of this development and that is now sought to be modified by the Applicant. The modification seeks to modify the essential feature of the sign, being the duration or time permitted for its display.

74. However appealing the Respondent’s argument may initially be that the sign is an advertisement, I consider the nature of the sign to have been settled by the Council in March 2005 when it defined the sign as a building identification sign in its determination of DA92/05.

75. The evidence submitted to me in this matter is not precise on the timing or means by which the sign changed from the original wording ‘SHARP’ to ‘Platinum’. The Respondent’s written submissions, at par 7, states that “In about May 2016, the content of the signs were changed…”.

76. I have not been provided with any evidence of consent for a change of use, or a change in the definition set out in SEPP 64 that would lead me to conclude that the sign is a different type than that for which Council gave its consent in DA92/05.

77. As I do not find the subject sign to be a roof or sky advertisement, I must also conclude that cll 17 and 18 of SEPP 64 do not apply.

78. While I do not consider the sign to be other than the designation assigned by the Council in DA92/05 and again in 2006, the Respondent’s argument that time, or temporality, is an essential feature or element in the development has merit, in my view.

79. From the outset, Condition A2 prescribes a period of time in which the display of the sign is permitted. It is a kind of ‘sunset clause’, after which time the consent lapses unless an extension is sought in the form of a new development application lodged with the Council.

80. That said, other than an extension of the time-limit applicable to the consent, the Applicant does not seek to further modify aspects of the sign in respect of time. It does not, for instance, seek to extend the hours of operation that would have the potential to impose additional adverse impacts.

81. The Applicant now seeks, as it has once before, to extend the period of time set out in Condition A2, not in a new development application, but in the form of a modification application. The parties are agreed, as am I, that the wording of a condition cannot displace the Applicant’s rights to seek a modification in accordance with s 4.55 of the EPA Act.

82. While I consider the time-limitation to be an essential feature or element in the development, the Applicant does not seek to modify those aspects of time that would modify the development itself. Instead, the Applicant seeks to modify an aspect of the condition that would, in effect, permit the continuation of the development in its current form.

69. No change of hours of operation are proposed. No change in size, materials, colour, orientation, level of illumination or media is proposed.

70. For the reasons above, I am therefore satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified.

71. In arriving at this state of satisfaction, I have considered the Respondent’s invitation to consider the original consent as a whole, including the terms of Condition A2. Unlike Benmill, where the ambiguity arose as the sign for which consent had been granted was characterised in the consent as a type of sign that was not defined in SEPP 64, the subject sign in this matter was defined with some care by the Council, and entirely consistent with defined terms set out in SEPP 64.

72. Even if I were to accept the Respondent’s invitation to consider the circumstances of the consent, I note the care taken by Council in characterising the sign at the time of the original consent, and again prior to the consent granted to the modification.

73. The evidence is that the Council was deliberate in defining the sign as a building identification sign (but for an inconsequential error in referring to Part 3 as Section 3).

1. Firstly, reference is made in a notation that appears on the first page of Council’s decision in respect of DA92/05 dated 22 August 2005 to the building identification sign, the subject of the application, being “as defined under SEPP No.64 – Advertising and Signage” (Exhibit 2, Tab 1B).

2. Secondly, in a report prepared for Council in respect of DA92/05/3 dated 19 September 2006 in which the sign, being a building identification sign, is distinguished from advertising in the following manner:

“as separate from a roof or sky advertisement, as the structures were not considered to be advertisements and therefore were considered solely under Schedule 1 of SEPP No.64. It is important that this is noted, as under Section 3, “roof or sky advertisements” are limited to a consent period of 10 years. This limitation does not apply in this instance.” (Exhibit 2, folio 24).

3. The report reiterates the point, on folio 25, in the following terms:

“…as previously discussed in this report, the original consent for the signage recognised it as being a ‘building identification sign’ and therefore not subject to assessment under Section 3 of SEPP No.64. Therefore the limitation of “roof or sky advertisements” to consent duration of 10 years is not applicable in this instance…”

88. I note that the Respondent considered application DA92/05/3, seeking to modify a condition to extend the time limitation, as does the application now before the Court, to constitute development that was substantially the same development.

89. It is also not without relevance that the Council consented to DA92/05/3, modifying the terms of the condition to grant a time limitation of 15 years and not 10 years as originally approved.

90. Relatedly, as the application before the Court is not a development application seeking development consent, the provisions of cl 8 of SEPP 64 do not apply and so cannot be regarded as mandatory considerations in respect of the subject signs.

91. However, the Respondent invites me to regard those provisions contained in cl 8 of the SEPP 64 to be matters that assist the Court in an assessment of contention 2.

92. I accept that the provisions of SEPP 64 clearly fall within the scope of s 4.15(1)(a)(i) of the EPA Act for consideration in this case. However, a plain reading of cl 8 of SEPP 64 would appear to preclude its provisions from being considered a matter of relevance as the application before the Court is not seeking development consent, but consent to modify a condition of consent.

93. That said, I have also considered whether certain provisions of cl 8 of SEPP 64 would assist me in providing a framework by which to consider Contention 2 as it appears in Exhibit 1. I have concluded there is no utility in adopting the provisions of cl 8 in the manner suggested by the Respondent. This is because subcl 8(a) calls up the objectives of SEPP 64 at cl 3(1)(a) to which I must have regard in any event, and as the particular aspects of Schedule 1 of SEPP 64, at subcl 8(b) is in virtually identical terms to the contention as drafted.

Is the proposal consistent with the existing and desired future character of Milsons Point?

94. In its written submissions, the Respondent considers Milsons Point to have undergone a transition over the last 15 years as former office buildings have been converted to residential apartments. Along with this change in use, commercial roof signage has been progressively removed to such an extent that illuminated rooftop signs are now intrusive in the skyline and have an adverse visual impact.

95. For this reason, the continued display of the sign for another 15 years is inconsistent with the existing residential character, and even more so, is inconsistent with the desired future character of the Milsons Point Town Centre.

96. The visual character of Milsons Point has changed since 2005, and is likely to continue to change. For this reason, Mr Donovan considers both the existing and desired future character in the year 2035, being the year for which the Applicant seeks the extension, worthy of consideration.

97. However, according to Ms Morrish, while change has occurred, the area is not zoned residential but is a B4 Mixed Use zone that may attract commercial uses in the future, and for which new signage is permitted by Part B9.11 of the NSDCP where it replaces one or more existing roof or sky signs and improve the visual amenity of the locality (P1); or where they are associated with a non-residential use (P2).

98. Mr Donovan is of the view that the existing visual character of Milsons Point is separate and distinct from that of the North Sydney CBD, in which illuminated rooftop signage is evident.

99. According to Mr Moir, the subject signs are visible during daylight hours from the Bradfield Highway and from locations in North Sydney, and when illuminated, stand in contrast to the dark skyline when viewed from locations that appear in Attachment 2 of Exhibit 4, titled the ‘North Sydney Council, Platinum Signs Photographic Survey and commentary’.

100. Existing views of the subject signs from more distant locations result in the signs forming a part of a broader skyline that is visually connected to the illuminated signs in the North Sydney CBD according to Ms Morrish. When viewed from the south, the south facing sign is visually associated with more prominent development in North Sydney. When viewed from the north, the north facing sign is viewed against the backdrop of the City of Sydney CBD.

101. When viewed in context with what Ms Morrish terms ‘”the wall of towers and signs that line the western side of the freeway”, there is general apartment lighting evident in all the towers in Milsons Point, including at roof level.

102. Furthermore, an illuminated sign has existed in this location since the building was first constructed in 1972 and so can be said to form part of the existing character of Milsons Point that may also pre-date, in Ms Morrish’s view, the conversion of commercial buildings to apartments that are now said by the Respondent to be affected by the display of the sign.

103. Particular (c) in support of the Contention (Exhibit 1) describes the existing visual character of the Milsons Point Town Centre to be ‘the absence of roof top signs’ which Mr Moir attributes to an objective of the Council to remove rooftop signage.

104. However, according to the Applicant, the Respondent’s position contradicts the introduction to Part B9 of the NSDCP which states, in summary, that signage is a prominent and integral part of North Sydney:

“Advertising and signage is a prominent feature of the skyline and streetscape in North Sydney. It is an integral part of the streetscape in commercial centres, shopping villages and mixed uses areas, providing information to people on business locations, products and services. However, there is also a need to ensure that signage does not dominate or detract from the character of an area.

…”

105. Furthermore, a comparison of the different zones and areas described in Part B9.2 of the NSDCP indicates that certain signage is discouraged in Crows Nest and St Leonards. The same cannot be said for the Milsons Point Town Centre.

The application of the NSDCP is disputed

106. The meaning and application of provisions contained in Part B9 and Part C9 of the NSDCP are disputed. Part B9 is headed ‘Advertising and signage’. Part C9 is headed ‘Lavender Bay Planning Area’.

107. The Applicant draws my attention to Part A1.7.3 of the NSDCP which states:

“1.7.3 Part C – Area Character Statements

The LGA comprises a number of neighbourhoods which display distinct characteristics. This Part of the DCP identifies the desired future outcomes for each of these neighbourhoods. In addition, this Part of the DCP contains additional provisions which relate to development within these neighbourhoods. The provisions within this Part take precedence over the provisions within Part B of the DCP.”

108. Mr Duggan considers the provisions of Part B9 of the NSDCP to be limited in their application as the application before the Court is not a development application, but is an application to modify a consent and Part B9.1.2 relevantly provides:

“This Section of the DCP applies to all development applications incorporating signage that can be seen from a public place such as a street, waterway or public reserve…” (emphasis added)

109. Part B9.1.3 confirms that the provisions of the Part should be read in conjunction with Part C, as follows:

“Where relevant, this Section of the DCP should be read in conjunction with the following Sections of the DCP:

(a) Part A: Section 3 – Submitting an Application;

(b) Part C: Character Area Statements”

110. Part B9.2 sets out an ‘Advertising Design Analysis’ and provides, relevantly:

“9.2 ADVERTISING DESIGN ANALYSIS

The following advertising design analysis aims to provide guidance on desirable forms of advertising in North Sydney for different zones and areas. Advertising design should reinforce the character of advertising described in this analysis.

…”

111. Guidance on desirable forms of advertising for the Milsons Point Town Centre is at Part B9.2.2(a), and is in the following terms:

"9.2.2 B4 - Mixed Use Zone (a) Milson’s Point

Milsons Point has a diverse range of land uses including residential, commercial and retail that are mostly located in multi storey buildings that have a prominent location on the foreshores of Sydney Harbour. Signage in Milsons Point is a mixture of small business identification signs (fascia, under awning, wall, projecting wall signs). There are some larger wall and roof signs on building elevations that are quite visible from Sydney Harbour. To enhance the views of North Sydney from Sydney Harbour and the Bradfield Highway, future signage should be limited to small scale business and/or building identification signs at lower levels where commercial development is permitted under NSLEP 2013."

112. This is distinct from the guidance provided in respect of Crows Nest in Part B9.2.2(b) which provides, relevantly:

“For this reason, further large and/or roof signs are discouraged in the Crows Nest Area…” (emphasis added)

113. Guidance in respect of St Leonards is in similar terms, at Part B9.2.2(c):

“…There are a number of large existing roof and wall signs that currently dominate the skyline so any additional signage of this type should be avoided. Signage in this area should be limited to small scale business identification advertisements at ground level (under awning, fascia, top hamper) and no new larger illuminated wall and roof signs at upper levels.” (Emphasis added)

114. Mr Duggan is of the view that, firstly, the introduction at Part B9.2 makes clear its purpose relates to advertising, and not to other forms of signage such building identification signs, and secondly reference in Part B9.2.2(a) to ‘some larger wall and roof signs on building elevations’ is a reference to the subject signs which are, as the provision is worded, accepted to be ‘quite visible’ from Sydney Harbour and are not the subject of the limitations placed on location of ‘future signage’.

115. This is not consistent with a policy of removal of signs as suggested by Mr Moir in the Milsons Point Town Centre, according to the Applicant.

116. However, Mr Donovan considers the final sentence of Part B9.2.2(a) at [113] to be a statement to the effect that future signage should be limited to small scale business and/or building identification signs at lower levels (emphasis added).

117. This suggests to Mr Donovan that while the description at Part B9.2.2(a) follows the introduction re-produced at [110], it must have broader application than to advertising alone and to all future signage.

118. If I understand Mr To’s submission correctly, it is argued that the subject signs would not exist after the date due for the expiry of the consent but for the modification sought by the Applicant.

119. If the appeal is dismissed, the signs will be removed. This is in contrast to the alternative, where, in the event the appeal is upheld, the signage may then be considered, in effect, future signage that must, by operation of Part B92.2(a) be ‘limited to small scale business and/or building identification signs at lower levels’.

120. However, the subject signs are a visible element in the Milsons Point Town Centre today. In his oral evidence, Mr Donovan acknowledges that the signs are a part of the existing character. The application seeks the continuation of the signs, unamended, in the location and with the colour, format and illumination of today.

121. While the Respondent submits that the signs will, if the appeal is upheld, exist in the future, I do not understand the provision at Part B9.2.2(a) to consider something that exists in the future to be ‘future signage’ anymore than the building on which the signs are affixed, standing sometime in the future, to be considered a ‘future building’.

122. For the following reasons, I consider the guidance at Part B9.2.2(a) to be of limited assistance to the Respondent’s case:

1. Firstly, the guidance at Part A1.7.3 of the NSDCP is that the provisions of Part B are subordinate to those in Part C of the NSDCP.

2. Secondly, Part B9.2 of the NSDCP appears to apply its focus such that the “…advertising design analysis aims to provide guidance on desirable forms of advertising in North Sydney for different zones and areas.”

3. Thirdly, I accept that a plain reading of Part B9.2.2(a) suggests that the subject signs fit the description of being “…larger wall and roof signs on building elevations that are quite visible from Sydney Harbour” and there is no suggestion in the phrasing of the provision that would indicate a preference for such signs to be discouraged, as is the case in Crows Nest (Part B9.2.2(b)) or avoided, as is the case in St Leonards (Part B9.2.2(c)).

4. Fourthly, as stated earlier, I do not consider the subject signs, if the appeal is upheld, to constitute ‘future signage’ that is sought to be limited by the final sentence in Part B9.2.2(a).

123. I therefore afford the provisions of Part B9.2 less weight and I conclude that while it would not be appropriate to set them aside, it is appropriate to apply the provisions of Part B9.2 flexibly.

The signs do not adversely impact upon the ‘perceived experience’ of the existing character of the area

124. Mr To submits that the residents of apartments in close proximity to the south-facing sign cannot avoid perceiving the illumination resulting from the sign and, likewise, an absence of those signs would also have an impact on the residents perception of character of the area.

125. Those apartments said by the Respondent to be affected by the illumination are those shown in the street view captured in November 2019 from Google and enclosed in Exhibit 6 and re-produced below. The subject site is circled red.

126. The Respondent does not rely upon particular submissions from particular residents in particular buildings located in the area to suggest that the subject signs result in adverse amenity impacts on apartments.

127. Instead, the signs are said to adversely impact upon the character of the area by virtue of the illumination incurring into west facing apartments, and the absence of any other illuminated roof top signs in the Milsons Point Town Centre.

128. Ms Morrish considers the perception, or visibility, of the southern sign from nearby apartments to be more a question of amenity, and not character for the reasons stated at [102].

129. In my view, it is not possible to assess the visual impact of the signs on the local character when viewed from unspecified apartments, other than to observe that the Court was not provided with any evidence from residents in surrounding buildings of such an impact.

130. The Court is being invited by the Respondent to stand in the shoes of residents unknown, at locations unspecified and to consider what perceptions those residents may have of the southern sign in respect of character of the local area.

131. I cannot make a finding on the particular matter advanced by the Respondent other than to note the physical separation evident in the image at [125], and the orientation of the buildings which are at a 90-degree angle to each other as identified by Ms Morrish. On these two grounds alone I consider the likely impact to be significantly ameliorated, and accept Ms Morrish’s view that to the extent the sign imposes itself in any way, it would be more correctly characterised as an impact on the amenity of those residents.

132. I also accept the oral evidence of Mr Duggan that the signs are generally not evident from the street as shown in the view in the image at [125] which limits the impact of the sign on the local area when viewed from the public domain in the Milsons Point Town Centre.

The signs are not inconsistent with the desired future character of the area

133. The desired future character of the Milsons Point Town Centre and the desired built form are set out at Part C of the NSDCP at Part C9.1.2 and Part C 9.1.3 respectively in the following relevant terms:

“9.1.2 Desired Future Character Diversity

P1 Medium to high-rise mixed residential and commercial development, built boundary to boundary, with setbacks at laneways, above podium and to public spaces.

P2 Variety of different sized non-residential spaces and land uses which serve the local needs of residents (including convenience stores, cafes, medical centres etc).

P3 Development for residential accommodation should be in accordance with Council’s Residential Development Strategy, with limited growth envisaged for the area.

P4 Ground floors of mixed use development to operate land uses that promote pedestrian activity.

P5 Existing heritage items shall be protected and retained where practical.

P6 Provide a balance between the working and resident populations of the town centre, to ensure an active environment throughout the day.

P7 Where existing commercial buildings are to be refurbished, retention of the existing level of commercial floor space is encouraged.

….

9.1.3 Desired Built Form

…

Skyline

P10 Ancillary equipment, plant rooms are not visible from Sydney Harbour.

…”

134. The Applicant submits that, to the extent cl 3(1)(a) applies, the objective does not contain a reference to the desired future character but to the desired amenity and a local character that exists.

135. Furthermore, as there is no inconsistency between the proposal and the provisions of Part C9.1.2 and Part C9.1.3 of the NSDCP, the subject signs are consistent with the desired future character of the area.

136. The planning experts agree that Parts C9.1.2 and C9.1.3 are silent on the question of signage.

137. The Applicant submits, and Mr Donovan accepts, that Part C9.12 of the NSDCP encourages the retention of commercial uses in the Milson Point Town Centre for which business and building identification signs may be sought.

134. However, while Mr Donovan also accepts that business or building identification signs are permitted in the B4 zone and are likely to form a part of the future character of the area, the location of those signs is, according to Mr Donovan, limited by the provisions at Part B9.2.2(a).

135. I accept that there is no inconsistency apparent between the subject signs and the desired future character as set out in the performance criteria under Part C9.1.2. To the extent that the performance criteria are silent on the signage, I consider Part B9.2.2(a) a helpful reference, within certain limits.

136. For the reasons stated at [123], I consider it appropriate to apply the provisions of Part B9.2.2(a) flexibly, and which I read as implying a certain tolerance of the subject signs in respect of the existing character of the area.

137. The subject signs are consistent, in my view, with the objectives of Part B9. In particular:

“O2 does not detract from significant views, vistas and sensitive streetscapes;

…

O5 minimises the potential for adverse impacts on sky glow from the illumination of signs;”

142. In respect of Objective O2, the subject signs appear to be impliedly an accepted part of the character of the Milsons Point Town Centre when viewed from Sydney Harbour and so can be said to not detract from the significant views of the area.

143. In respect of Objective O5, I note the submission prepared by Mr Johnny Chan, a resident of 55 Lavender Street, states that the signage will incur more light pollution (Exhibit 2, folio 110). However, there is no proposal to modify the level of illumination and there is no contention to the effect that the subject signs create an adverse impact on sky glow in the current form.

144. The Respondent’s case includes the assertion that the character of Milsons Point Town Centre has changed since 2005. This assertion is supported by public submissions made in response to the initial notification.

145. In particular, Mr Laurence Mather, resident of 102 Alfred Street, submits that the “character of the area has changed irrevocably to residential...” (Exhibit 2, folio 95).

146. While this may be the observation of some residents in the area, it is not reflected in the future character desired by the objectives of the B4 zone, which is:

•  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 create interesting and vibrant mixed use centres with safe, high quality urban environments with residential amenity.

•  To maintain existing commercial space and allow for residential development in mixed use buildings, with non-residential uses concentrated on the lower levels and residential uses predominantly on the higher levels.

147. Likewise the performance criteria evident in Part B9.1.2 supports a future for the area that comprises “Medium to high-rise mixed residential and commercial development…” (P1), a “variety of different sized non-residential spaces and land uses which serve the local needs of residents (including convenience stores, cafes, medical centres etc).” (P2), a “balance between the working and resident populations of the town centre…” (P6), and where “retention of the existing level of commercial floor space is encouraged.” (P7)

148. Relatedly then, I consider the modification application consistent with the existing and desired future character and not, of itself, objectionable. I also consider the Respondent’s argument that the subject signs, by virtue of their uniqueness in the area, are unlikely to set a precedent. The circumstances of this matter centre on existing signs that were, at the time of consent, open to an extension of the time limit initially applied in Condition A2.

The wording of Condition A2

149. The Court was not assisted by either party in the form of words proposed for a modified Condition A2.

150. The Respondent advised that draft without prejudice conditions had not been prepared as the appeal is in respect of one condition.

151. The Applicant does not propose text in the event that the Court upholds the appeal.

152. I am mindful of the imminent expiry of the time limitation contained in the current Condition A2.

153. Subject to providing an opportunity for the parties to confer on the appropriate wording for such conditions and to hear from the parties if required, the condition could be as follows:

“This consent shall cease to be in force on the expiration of 30 years after the date on which the consent becomes effective and operate in accordance with Section 8.13 of the Environmental Planning and Assessment Act 1979. Should the owner of the site wish to extend this period, a new development application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.

(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour).”

154. For the reasons set out above, it is appropriate to modify the consent, subject to the conditions that are agreed between the parties. However, the parties ought to have the opportunity to discuss, and agree on, the terms of the modified Condition A2.

Directions

155. The Court directs that:

1. The parties are to confer to finalise the appropriate wording for the conditions of consent resulting from the findings of the Court;

2. If an agreement is reached on the wording of the condition referred to in (1) above, the final conditions of consent are to be filed by the Council by 12pm on 17 August 2020;

3. If no such agreement is reached, the matter is listed for mention before me at 4.15pm on 18 August 2020;

4. The parties have liberty to re-list on two days’ notice if there is any dispute about the condition of consent;

5. If directions (1) and (2) are satisfied, I will vacate the mention on 18 August 2020; and

6. The exhibits are returned, except for Exhibits B and 5.

Addendum on 25 August 2020

156. As the parties were unable to reach agreement on the wording of Condition A2, the matter was listed for short submissions commencing at 4.15pm on 18 August 2020 in accordance with the Court’s directions at [155(3)] and was conducted via teleconference.

157. At 4.04pm on the day of the mention, by consent of the parties the Applicant provided the Court with a document by email containing Condition A2 as initially proposed by the Court at [153], as proposed by the Applicant, and as proposed by the Respondent.

158. The Applicant’s proposed wording is as follows:

“This consent shall cease to be in force on the expiration of 15 years after the date that the orders made by the Land and Environment Court in proceedings no. 2020/71383 take effect, being 26 August 2020. Should the owner of the site wish to extend this period, an application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.

(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour).”

159. The Respondent’s proposed wording is as follows:

“This consent shall cease to be in force on 26 August 2035. Upon such date the signs and associated structures shall be removed.

(Reason: To protect the amenity of the surrounding area, the character of the Lavender Bay and the visual qualities of Sydney Harbour)”

160. At the commencement of the mention, Ms Leung, who initially appeared for the Respondent, sought an adjournment in order for the Respondent to prepare written submissions addressing the matter in dispute which she understood to be the purpose of the mention.

161. Ms Hemmings, counsel for the Applicant, opposed an adjournment on the basis that the Applicant had prepared for the mention which it understood was for the purpose of resolving the matter.

162. Ms Leung pressed for a ten minute adjournment in order to seek instructions. While I considered the purpose of the mention to be clear from a plain reading of the directions, I expressed a desire to dispose of the proceedings in respect of Condition A2. To this end, I granted a five minute adjournment, after which Mr Drury appeared for the Respondent.

163. The Applicant submits to me that the Court should decline the Council’s preferred wording on the following grounds:

1. Firstly, despite the Court ordering the Applicant to do so, the Respondent did not file draft without prejudice conditions of consent on 8 April 2020. Furthermore, the Respondent advised the Applicant on 20 June 2020 that it did not intend to do so. This is consistent with the Respondent’s written and oral submissions at the hearing.

2. Had the Respondent filed the wording as now proposed, the Applicant would have had the opportunity to seek, by a Notice to Produce, those conditions prepared by the Council in like cases as well as policies of Council related to the removal of signage.

3. Additionally, the Applicant could have called evidence on the implications of removing the sign, and the support structure as is now proposed. As the form of the proposed condition was not in evidence, experts were not directed to address the potential impacts of removing the sign and its support structure. What expert evidence was given, by Ms Morrish, was to the effect that even if the signs were removed, it is likely that some light or illumination would remain, such is the integration between sign and building.

4. Secondly, the modification application is limited to an extension to the time-limited condition of consent. Yet the Respondent’s proposed condition seeks the removal of the sign and associated structure which cannot be described as an essential feature or element of the modification application. Furthermore, the Respondent proposes to change the reason for the imposition of the condition from the reason given at the time of the 2006 consent.

164. The Respondent’s position is that the Applicant opted to lodge a modification application for a more limited consent in preference to a new development application and so the consent granted by the Court is limited accordingly.

165. Should the Applicant, or its successors in title, seek to lodge a modification application at some time in the future, the form of words proposed by the Respondent does not limit the Applicant’s rights in that regard.

166. I have sympathy for the Applicant’s submission that it should not be prejudiced by the Council’s decision to not comply with the orders made by the Court on 8 April 2020 to file draft ‘without prejudice’ conditions of consent 14 days before the hearing, in response to which the Applicant was ordered to provide draft conditions 7 days before the hearing.

167. However, the Applicant did not, absent the Respondent’s draft conditions, file its own draft conditions. In particular, the Applicant did not propose wording for the condition the subject of the modification application until directed to do so by the Court at [155].

168. The Applicant submits that it is logical for my consideration at [82]-[84] to extend to a finding that a condition requiring the removal of ‘associated structures’ at the expiration of the time-limited condition is outside of power as the modification application did not propose any works to the form of the sign, or its means of support.

169. I consider there to be a close nexus between the sign and the structure whose sole purpose is to effect the display of the sign the subject of the modification application. I also do not think it unreasonable to expect that, should a further application to extend the time for the display of the sign not be made, or for whatever reason the owner of the signage lot elects to remove the sign, the ‘associated structures’ would also be removed. Such is the nature of such signs and their means of support.

170. That said, while it may be that the removal of ‘associated structures’, and presumably the remediation of what remains once the ‘associated structures’ are removed, is a straightforward task, there is no certainty of this as the precise nature and scope of what is meant by the term ‘associated structures’ was not the subject of evidence.

171. The Court was not presented with evidence as to whether the ‘associated structures’ referred to in the Respondent’s preferred wording of the condition is in the form of brackets, or what is commonly referred to as ‘secondary steelwork’, or some other form of support that may be independent of, or integrated with, the building façade.

172. To what extent, if any, the removal of the ‘associated structures’ would impact the existing building on the site is not in evidence. In my view, for the Court to require the removal of the ‘associated structures’ by way of a condition of consent, without the scope or extent of the ‘associated structures’ being particularised risks creating in an order of the Court an ambiguity not dissimilar to the sort before Robson J in Benmill.

173. In respect of the change proposed by the Respondent as to the reason for the imposition of the condition, I do not consider it unreasonable that the Respondent would seek to amend the reason for the proposed condition originally drafted in September 2006. I also note that the weight to be afforded to the reason for the imposition of the condition rises no higher than to assist in understanding Council’s intent at the time of drafting.

174. As I find the wording of the Respondent’s preferred condition likely to give rise to ambiguity, I accept and adopt the Applicant’s preferred wording of Condition A2.

Orders

175. The Court orders that:

1. The appeal is upheld.

2. The application to modify Development Consent No. 92/05 is approved, subject to the wording of Condition A2 that is now modified to read:

“This consent shall cease to be in force on the expiration of 15 years after the date that the orders made by the Land and Environment Court in proceedings no. 2020/71383 take effect, being 26 August 2020. Should the owner of the site wish to extend this period, an application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.

(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour).”

3. All Exhibits are returned, except for Exhibits B and 5.

…………………………

T Horton

Commissioner of the Court

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Amendments

25 August 2020 - See Addendum at [156]-[175].

Decision last updated: 25 August 2020