Lederer v Sydney City Council - [2002] NSWLEC 156

Land and Environment Court

of New South Wales

CITATION: Lederer & Ors v Sydney City Council [2002] NSWLEC 156

PARTIES:
APPLICANTS:
Andrew Lederer, Gizela Fiala & Hexiva Pty Ltd (ACN 001 485 356)
RESPONDENT:
Sydney City Council

FILE NUMBER(S): 10885 of 2001

CORAM: Lloyd J

KEY ISSUES: Development Consent :- modification application - substantially different development - heritage building

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C, s 96(2)(a), s 96(3) and s 96(6)
Central Sydney Local Environmental Plan 1996 cl 23(2)
Central Sydney Heritage Local Environmental Plan 2000
State Environmental Planning Policy No. 64 - Advertising and Signage cl 11 and cl 22

CASES CITED: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning and Others (1999) 106 LGERA 243;
Lederer & Ors v Sydney City Council (2002) 119 LGERA 350, [2001] NSWLEC 272;
Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, [1999] NSWLEC 280;
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 97 LGERA 433;
The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244;
Vacik Pty Ltd v Penrith City Council, NSWLEC, Stein J, 24 February 1992, NSWLEC, unreported;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 05/08/2002 and 06/08/2002

DATE OF JUDGMENT:
09/27/2002

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr J E Robson (barrister)
SOLICITORS:
Abbot Tout
RESPONDENT:
Mr M G Craig QC
SOLICITORS:
Esplins

JUDGMENT:

10885 of 2001
Lloyd J
27 September 2002

ANDREW LEDERER, GIZELA FIALA AND

HEXIVA PTY LIMITED (ACN 001 485 356)

Applicants

SYDNEY CITY COUNCIL

Respondent

REASONS FOR JUDGMENT

1. This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) against the refusal of an application to modify a development consent. The consent which is sought to be modified was granted on 21 December 1983 for “an illuminated painted wall sign” on the western wall of a building known as “Canada House” at No. 822 George Street, Sydney. The sign is the same as the sign that was the subject of the proceedings in Lederer & Ors v Sydney City Council (2002) 119 LGERA 350, [2001] NSWLEC 272 in which I allowed an appeal under s 121ZK of the EP&A Act and revoked an order issued by the Sydney City Council (“the council”) under s 121B of that Act.

2. The modifications which are now sought are firstly, the substitution of the words “illuminated painted wall sign” with the words “illuminated flush wall advertising sign”; and secondly, the deletion of the condition requiring that details of the colouring and wording of proposed advertisement be submitted to the council with an application for an advertising licence.

3. The second modification is a consequence of the fact that annual licences for advertising signs are no longer required; and the further fact that cl 8.4.2 of Sydney Central Development Control Plan 1996 now provides…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 156
Decision Date: 09/27/2002

CaseChat Overview and Summary

Lederer v Sydney City Council is an appeal against the refusal of an application to modify a development consent granted in 1983 for an illuminated painted wall sign on a heritage building. The modifications sought were the substitution of the words “illuminated painted wall sign” with “illuminated flush wall advertising sign” and the deletion of a condition requiring details of the colouring and wording of proposed advertisement to be submitted to the council with an application for an advertising licence. The central issues were whether the proposed modification was substantially the same as the existing consent and whether the current planning controls precluded the modification. The court considered the expert evidence of both parties and found that the proposed modification was not substantially the same as the existing consent, as the primary purpose of the development for which consent was granted was to refurbish the paintwork on the wall, while the proposed modification was primarily for the display of advertisements. Additionally, the court found that the current planning controls precluded the modification, as the proposed sign would not be consistent with the relevant planning instruments. The appeal was dismissed, and the application to modify development consent was refused.

Orders