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:

5

10885 of 2001
Lloyd J
27 September 2002

ANDREW LEDERER, GIZELA FIALA AND

HEXIVA PTY LIMITED (ACN 001 485 356)

Applicants

v

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 that changes to the advertising content of billboard signs do not require consent, other than in residential zones. It is my understanding that the council does not oppose the second modification which is sought.

4. The sign which is presently displayed on the western wall of Canada House is not a painted wall sign, but is a kind of sign which would be permitted if the consent were to be modified as sought. It is not unlike a billboard in appearance. The advertisement is contained on a vinyl membrane affixed to a six millimetres metal sail track which is in turn fixed to the wall by screws or bolts. It has dimensions of forty metres by eight metres (or 320 square metres). The advertisement can be readily changed by replacing the vinyl membrane which contains the advertising content.

The Relevant Planning Controls

5. Canada House is within the City Edge zone under the Central Sydney Local Environmental Plan 1996 (“the LEP”). Clause 23(2) of that instrument states that development for the use of land for the purpose of advertisements and advertising structures may only be carried out with development consent.

6. Canada House is also listed as a heritage item under Sch 1 of the Central Sydney Heritage Local Environmental Plan 2000 (“the Heritage LEP”). It is adjacent to another heritage item, a former bank on the corner of George Street and Regent Street. All four buildings at that intersection are listed as heritage items, as are several other buildings in the vicinity.

7. State Environmental Planning Policy No. 64 – Advertising and Signage (“the Policy”) also applies. Clause 11 of the Policy imposes a requirement on a person to obtain development consent before displaying advertisement. In a case of wall advertisements, a consent authority may only grant consent if it is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed and satisfies certain other criteria (cl 22). The subject sign fits the definition of “wall advertisement” which is defined in the Policy as “ an advertisement that is painted on or fixed flat to the wall of a building, but does not include a special promotional advertisement or a building wrap advertisement”.

8. Central Sydney Development Control Plan 1996 (“the DCP”) also applies. Clause 8 of the DCP applies to signs. The objectives of that clause include the following:

· To reduce the overall amount of advertising in Central Sydney through the provision of fewer, more effective signs, and to ensure that the number and location of signs is controlled to avoid the creation of visual clutter on buildings and streetscapes.

…

· To reduce the number of large and or freestanding billboard signs in Central Sydney.

…

· To ensure that changes to existing signs are consistent with the requirements that apply to new signs.

9. Clause 8.3 of the DCP applies to commercial advertising signs. Under the heading “Strategy” the following appears;

Commercial Advertising Signs are generally discouraged and restricted in Central Sydney.
…
Signs promoting commercial activities unrelated to or only loosely related to the buildings and uses in Central Sydney detract from signs identifying these buildings and uses, potentially affecting their viability and adding to visual clutter in the city streetscapes.

10. Under the sub-heading “Objectives” the following appears (inter alia):

· To restrict and discourage Commercial Advertising Signs.

· To reduce the number of large or freestanding billboard signs in Central Sydney

…

· To reduce the overall amount of advertising in Central Sydney and to remove existing inappropriate Commercial Advertising Signs.

11. Clause 8.4 of the DCP relates to signs on heritage items. The objectives of that section include the following (inter alia):

· To ensure that signs on heritage items and in heritage streetscapes meet the general sign objectives under Section 8.1 [noted in par [8] above].

…

· To require that a sign (including its supporting structure) on a heritage item or heritage streetscape responds to the significant aesthetic elements of the heritage item or heritage streetscape.

…

· To prevent inappropriate signs on a heritage item or in a heritage streetscape.

…

12. Other relevant provisions in cl 8.4 of the DCP include the following:

8.4.2 All signs on a heritage item or in a heritage streetscape are to be:
(i) restrained in design,
(ii) of a high standard of materials, construction and graphics,
(iii) carefully placed and of compatible design and style with appropriate lettering.
…
8.4.5 Signs between the first floor level and the parapet of a heritage item are not permissible
The Relevance of the Planning Controls

13. The development consent which is sought to be modified was granted in 1983, that is before any of the planning instruments described above were in force. The current planning controls are relevant, however, because s 96(3) of the EP&A Act requires that they be taken into consideration. It provides:

(3) 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 79C(1) as are of relevance to the development the subject of the application.

14. The “matters referred to in s 79C(1)” in turn include the provisions of any relevant environmental planning instrument and any relevant development control plan.

15. In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 97 LGERA 433, Mason P (Sheppard AJA agreeing) held that in exercising its discretion determining in an application for modification of a development consent under then s 102(3A) of the EP&A Act (now s 96(3)), the consent authority is required to consider the totality of the development as proposed to be modified and to take into consideration such of the matters referred to in the then s 90 of the EP&A Act (now s 79C) as are of relevance to that development.

16. It follows that although the planning instruments which I have described above were made well after the consent was granted to the subject development, the application for modification must be considered in the light of those instruments.

17. Importantly, the current planning instruments must be considered as a fundamental element in, or a focal point of, consideration of the present application (Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 602[71] to 603[77]).

The Expert Evidence

18. The applicant relies upon the evidence of Mr R M Staas, (architect and heritage consultant), Ms D Laidlaw (town planner), Mr D Rath (national development manager, Cody Outdoor Advertising Pty Ltd), and on a report prepared by Clive Lucas, Stapleton & Partners Pty Ltd.

19. The respondent council relies upon the evidence of Mr D P Logan (architect, planner and heritage consultant), Mr W A Mackay (area planning manager of the council) and reports of Ms D Banjanin (town planner) and of Ms A Warr (the council’s area manager heritage).

20. The principal witness for the applicant was Mr Staas. In his report which was tendered, Mr Staas noted that a painted sign on the western wall of Canada House appeared soon after the building was erected in 1910 and it is clear that the building was designed to take advantage of the opportunity for a large advertising sign from the beginning, as were many similar buildings in the area. For some years prior to 1983 the wall was left vacant without any signage. In 1983 the existing development consent was granted for an illuminated painted wall sign on the building. In his opinion, archival photographs show that some of the signage in the past was bordered with a distinct projecting frame. The present sign with its metal frame is similar in character to those historic signs. In his opinion, the sign is substantially the same as many of the signs that have historically occupied the wall and does not have a significant impact on heritage values of the area; there would be little perceptible difference in the existing sign over a similar sign painted directly on the wall, particularly from any distance; and the presence of “these signs” is an important heritage feature of the area. In giving his evidence Mr Staas conceded that the current sign obscures the brick fabric of the wall, but said that it is similar in impact to a painted wall sign.

21. Ms Laidlaw’s report sets out the relevant planning controls and she concedes that if this were an application for a new sign then it would not be consistent with the LEP, the Heritage LEP and the DCP; and the combined effect of those instruments would not contemplate approval to a display of the current description sign. The sign would not comply with the council’s current controls. Ms Laidlaw takes the view, however, that since the current proceedings do not relate to the approval of a new sign but to an application for modification of an approved sign, those controls must be set aside in the assessment of this application to the extent that they would preclude the display of any image of the general dimensions and content as now proposed. On the merits of the application Ms Laidlaw is of the opinion that from the vast majority of viewing positions, the impact of the vinyl sign is no different from that of a painted sign.

22. Mr Rath said that a painted wall sign with simple lettering and a background colour would take four to seven days to paint. A more complex graphic would take seven to fourteen days to paint. Painting has its limitations and provides little, if any, opportunity for gradation of colours and tonal changes. This limits the painted displays to simple graphics and primary colours which are less pleasing to the eye and not preferred by advertisers.

23. The report of Clive Lucas, Stapleton & Partners Pty Ltd was prepared in November 1989 and is a report on the heritage significance of Canada House as a result of listing the property in the council’s Central Sydney Heritage Inventory 1989. The authors of the report are Nicholas Jackson and Ian Stapleton. The report concentrates on the heritage significance of the building and contains no specific reference to the sign on the western wall of the building. There is a general reference to the “advertising billboards” which “contribute to an historical continuum of such advertising which has marked the character of this part of Sydney from at least the time of the completion of Central Railway Station”. It is not clear, however, whether this is a reference to billboards on a separate structure on the roof of the building or to the wall sign. The report states that the listing should relate principally to:

1. The bulk and form of the building located at the southern end of Railway Square.
2. The architectural style and character of the exterior of the north and east elevations of the building.
3. The continued existence of large advertising signs facing Railway Square and Broadway.

24. Again, the reference to the large advertising signs facing Railway Square and Broadway may be a reference to the billboards on the separate structure on the roof of the building, which face both Railway Square and Broadway. As noted above, the report makes no specific reference to any sign on the western wall of the building.

25. The council relies principally on the evidence of Mr D P Logan. Mr Logan is extremely well qualified, holding (inter alia) a master degree in building conservation, having served on the National Executive Committee of Australia ICOMOS and as its Vice-President in 1997 and 1998, as a member of the Working Party which prepared the recent revision of the Burra Charter, as a member of the New South Wales Heritage Council’s Working Group which prepared the current version of the Model Heritage Provisions for local environmental plans, also having prepared several heritage-based development controls plans for a variety of councils, and having been extensively involved in the preparation of urban design guidelines both within the City of Sydney and elsewhere.

26. Mr Logan’s firm, Godden Mackay Logan Pty Ltd Heritage Consultants, undertook the heritage assessment of Canada House upon which the current heritage listing in the Heritage LEP was based. He was the project director for the assessment undertaken by his firm. In both the inventory report in the council’s database entry for the building and in the Heritage Council’s State Heritage Inventory listing, the conservation policy (in the former) and the recommended management (in the latter) refer to the masonry character of the building and both contain the statement: “[t]he large advertising structure should be removed from the building at the earliest opportunity”. As with the Clive Lucas, Stapleton & Partners’ report, it is not clear whether this is a reference to the billboard structure on the roof of the building or to the subject wall sign.

27. In his report Mr Logan refers to cl 8.3 of the DCP and states that the proposal would be inconsistent with the specific objectives of the DCP and is contrary to the objectives of the Heritage LEP. In his opinion the proposed sign would obscure the masonry character of the building; and painted signs, by their nature, are a more traditional form of sign and are therefore more appropriate as a backdrop to a significant heritage item.

28. Ms Banjanin’s report notes that there are other buildings within the vicinity of this site that are of heritage significance and that the subject sign does not comply with the planning objectives of the LEP, the Heritage LEP and the DCP.

29. Ms Warr’s report states, inter alia, that the subject site does not comply with the heritage LEP and is specifically not permitted by the DCP.

30. Mr MacKay similarly relies upon the non-compliance of the subject sign with the relevant planning instruments.

The Issues

31. It is clear that there are two major issues which arise from the present application for modification of the consent. The first issue arises under s 96(2)(a) of the EP&A Act, which relevantly states:

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:

32. The second issue arises under s 96(3) of the EP&A Act, which states:

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 79C (1) as are of relevance to the development the subject of the application.
The First Issue
The Applicants’ Submissions

33. Mr M G Craig QC, appearing for the applicants, makes the following submissions in addressing the first issue.

34. In applying s 96(2)(a) of the EP&A Act it is necessary to carry out a comparative exercise between the proposed modification and the development that is the subject of the 1983 consent granted.

35. There are six elements of the development for which consent presently exists:

(1) It authorises the display of advertisement on illuminated painted wall sign.

(2) It identifies the location of the advertisement, that is, the western wall of the building.

(3) It provides the display of advertisement between levels 5 and 8 on the wall.

(4) The advertisement is to have an area of 696.75 square metres, which is the entirety of the western wall of the building, including its recessed parapet height as presented on the western facade.

(5) It provides the advertisement to be illuminated.

(6) It provides the advertisement to be painted on the wall of the building.

36. What elements are substantially the same between the proposed modification and the development that is the subject of the 1983 consent?

· Elements 1 to 3 are the same.

· Element 4 changes to the extent that it proposes a diminution of the area of the advertisement from 696.75 square metres to 320 square metres

· Element 5 is the same.

· Element 6 is different. The advertising sign instead of being painted on the wall will be removed from the wall by a six millimetre track

37. Both the existing development and the proposed modification have “no control” over the sign’s frequency of change because it depends on the “commercial exigencies” .

38. The essence of the existing consent is two fold: (i) it involves the display of an illuminated advertisement on the wall with maximum dimensions fixed; and (ii) it covers or obscures the wall. Both essences remain the same in the proposed development.

39. The test of “substantially the same” involves both the qualitative as well as quantitative assessment. The evidence of Mr Staas shows that there is no or little change in impact from the proposed development but there is change in the technology. Although Mr Logan’s evidence is of the fine detail of whether or not some bricks can be seen at some stage, there is no substantial change in impact perceived.

40. The capacity to obscure the brickwork is also not within the control of either the existing or proposed developments as it depends upon the colours used and the complexity of the advertisement.

The Respondent’s Submissions

41. Mr J E Robson, appearing for the council, makes the following submissions.

42. The Court of Appeal’s decision in North Sydney Council v Michael Standley & Associates Pty Ltd sets the parameters that the Court ought to take in determining this issue. In Michael Standley & Associates Mason P used the expression “creep” for successive s 96 applications to indicate that a development can “creep” further away from that which was originally consented to but “the control” will be the application of the planning instruments.

43. The proposed development is significantly different from the existing development because it proposes to erect a structure that: (i) is not a painted wall sign; (ii) is sited in a different position to the painted wall sign; (ii) sits proud on the wall albeit not very far; and (iv) is a solid structure that is bolted or screwed to the wall.

44. The proposed sign that will be projected using modern technology is less restrained and offers increased flexibility and ability to change the advertising content than the existing sign. The consequence of the increased frequency of change of advertising sign will also mean that there will be a significant change in the existing development.

45. Instead of the paint being applied directly to the wall, the proposed modification involves a different process of application that is pre-application of the paint to a fabric by some mechanical process. Mr Robson submits that according to Mr Logan’s evidence this process provides a platform for regular change of the sign.

46. The proposed structure’s canvass or vinyl sheeting obscures the brickwork completely. The history of the building was to allow some form of signage but the proposed change of sign in a manner that uses modern technology is unwarranted and inappropriate to the heritage building. In Mr Logan's report the proposed structure does not achieve a very high degree of compatibility with the heritage significance of the building nor the streetscape. It detracts from that significance.

47. The essence of the consent which is sought to be changed is the substitution of the new structure. He submits the consequences of the substitution of the new structure materially change the development. He relies upon the Talbot J’s decision in TheSatellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244 at par [29]: “The focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development.”

Conclusions

48. As Mason P noted in North Sydney Council v Michael Standley & Associates Pty Ltd (at 474): “A modified consent must of necessity be different in some respects to its processor.” Moreover, Mason P noted that the essential meaning of the verb “modify” in this context is “to alter without radical transformation”. As to the meaning of “substantially the same development” Mason P said (at 475) that he respectfully agreed with Stein J in Vacik Pty Ltd v Penrith City Council (NSWLEC, 24 February 1992, unreported). In that case Stein J said (at 4): “ in assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situation”. Similarly, in Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, [1999] NSWLEC 280 Bignold J said (at 309[55])): “The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified”. Bignold J went on to say (at [56]):

The comparative task does not merely involve a comparison of the physical features or components of the development …. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contents (including the circumstances in which the development consent was granted) ”.

49. The circumstances in which the development consent was granted are explained in Lederer & Ors v Sydney City Council (2002) 119 LGERA 350, [2001] NSWLEC 272. The wall had been used for many years for advertising signs painted directly onto the brickwork. For several years before the development application was made in 1983 for the approved painted wall sign, the use of the wall for advertising signage had fallen into disuse. The development application stated that it was intended to refurbish the badly deteriorated paint finish on the western wall of the building and the advertising sign was “to offset costs of refurbishing”. The council granted its consent to the display of a painted wall sign as a special case (namely, to refurbish the badly deteriorated paint on the wall).

50. In applying all of the above-mentioned principles to the present application I am inclined, however, to the view, notwithstanding Mr Craig’s carefully formulated and well reasoned argument, that the development as modified is not substantially the same development as that for which was originally granted.

51. Firstly, I accept the six identified element of the development for which consent presently exists (noted in par [35] above). The sixth element, however, is significant. The changes now sought to be made are both qualitative and quantitative. Mr Robson’s identification of the physical differences (noted in par [43] above) suggests a difference in substance. Secondly, in considering the circumstances in which the development consent was granted it seems clear that the purpose was to refurbish the then badly deteriorated paintwork on the wall. That was the primary purpose. The stated purpose of the advertising sign was to offset the cost of doing so. The proposed modification, it seems to me, has little to do with refurbishing the paintwork on the wall. The primary purpose is to display advertisements and it had nothing to do with the primary purpose of the development for which the consent was granted.

52. The conclusion that the development as modified would not be substantially the same development as the development for which consent was originally granted means that it is not strictly necessary to determine the second issue. In case I am wrong in so concluding, however, I nevertheless now consider the second issue, particularly since it was fully argued.

The Second Issue
The Applicants’ Submissions

53. Mr Craig submits that a legal or practical barrier to the grant of the consent to the advertising sign , such as the prohibition in the DCP, does not in itself afford a bar to the grant of a modification application made pursuant to s 96 of the EP&A Act.

54. When considering the modification application that may involve a “creep” factor, one has to consider all such factors and then the s 79C matters afresh.

55. The current planning provisions including the DCP are taken into account in determination of an application for modification, but that cannot mean that some beneficial change to development consent cannot be made because the original development is now prohibited under the current planning instruments.

56. The intent of what was said in North Sydney Council v Michael Standley & Associates Pty Ltd is explained in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning & Ors (1999) 106 LGERA 243. In that case although Michael Standley & Associates Pty Ltd was sought to be re-argued unsuccessfully, Mr Craig submits that Michael Standley & Associates Pty Ltd should only be applied in the light of Coalcliff.

57. The obscuring of the brickwork on the western wall of the subject heritage building is a matter for the Court’s discretion. As the wall has been used for advertising ever since 1930s, there can be no pre-eminent objective to ensure that there remains a visible masonry on the subject building.

58. The capacity to view the brickwork is a function of a number of factors:

· Proximity – only one when comes close to the wall does one could discern the masonry bricks forming the wall.

· Colour and thickness of the textured paint – a matter over which “no control” exists even under the present consent.

· Frequency with which the advertisement changes – the frequency of change is subject to commercial exigencies and is the product of the complexity of the advertising sign.

59. Mr Craig does not accept that the proposed modification would lead to a greater scope to negotiate a suitable sign and in turn will lead to an increased frequency of change. Mr Craig submits that there is no control over frequency of change and content of sign as these occur ad hoc and vary with the complexity and boldness of the advertisement.

60. Mr Craig attempts to distinguish Zhang on the basis that it deals with an application that is development application and not a modification application and which distinction has been drawn in North Sydney Council v Michael Standley & Associates Pty Ltd.

61. Since the 1983 consent that is in force offends the current planning provisions, any modifications to it would also offend the current planning provisions. The modification can be made to the 1983 consent because a valid consent remains that can be implemented.

The Respondent’s Submissions

62. According to Mr Robson in giving consideration to s 79C of the EP&A Act, it is not possible to embrace the DCP without refusing the modification application as the proposed development is contrary to and not consistent with the LEP, the DCP, the Heritage DCP and SEPP No. 64 that are in place.

63. The planning instruments reflect the council’s current planning control desires, the public participation, and reflect the reasonable requirements, long-term plans and strategies of the residents, ratepayers and elected representatives. The proposed structure is contrary to the spirit and intendment of the current planning instruments. The current planning instruments should not be bluntly thrown to one side to allow and permit the proposed sign which, on any view, would not otherwise be permitted.

64. The effect upon the brickwork in context is of importance. The painted wall sign respects and reflects the texture of the brickwork to a greater degree than the proposed sign.

65. The existing painted wall sign for which consent exists is more suitable and compatible with the heritage significance of the building than the proposed modern technology sign. The existing consent is more respectful to the heritage building, the surrounding heritage area and the heritage landscape than the consent for which is now sought.

66. In exercising its discretion, the Court can take into account that the commercial exigencies do not by themselves drive the frequency of change of advertising signs but it is the balancing of the cost or convenience of repainting that will inevitably lead to frequently adopting a structure and changing of the sign.

Conclusions

67. In North Sydney Council v Michael Standley & Associates Pty Ltd, Mason P said in relation to the then s 102(3A), now s 96(3), at 477:

The critical words are “such of the matters referred to in s 90 [now s 79C] as are of relevance to the development the subject of the application” (emphasis added). Had the subsection used the word “modification” in place of the word “development” then it would have been quite different. But, with respect to those who see it otherwise, I find this to be a very plain subsection. The consent authority is required to consider any s 90 matter relevant to the whole development as modified. This is the plain meaning of the provision,…

68. In approaching the second issue I rely to a large extent on the expert evidence. In considering the expert evidence I prefer the evidence and opinions of the expert witnesses of the council, particularly Mr Logan. I have come to this view for the following reasons:

(1) Without in any way being critical of Mr Staas, Mr Logan is exceptionally well qualified and experienced to express the opinion which he did. I have set out in summary form the qualifications and experience (in par [25] above).
(2) Mr Logan expressly refers to and applies the relevant objectives of the DCP to his assessment of this application. Apart from the passing reference to the listing of the building under the Heritage LEP, Mr Staas makes no reference to the controls in the DCP or the other relevant planning instruments in his consideration of the application.
(3) As noted above in pars [5] to [12], the planning controls to which I have earlier referred must be taken into consideration in an application for modification of a consent. This follows from the combined operation of ss 96(3) and 79C(a) together with the decision of the Court of Appeal in North Sydney Municipal Council v Michael Standley & Associates Pty Ltd.
(4) Moreover, the relevant planning controls, and in particular the DCP, must be considered as a focal point for, or a fundamental element in, the consideration of the application ( Zhang v Canterbury City Council ).
(5) In this respect, Ms Laidlaw conceded in cross-examination that the subject sign is not consistent with the Heritage LEP, neither is it consistent with the DCP.
(6) In considering the DCP as a focal point for, or a fundamental element in, the consideration of this application, I find that its provisions would simply not allow approval of the subject sign. The particular provisions of the DCP which relate to the subject sign are those set out in pars [8] to [12] above.
(7) Moreover, as noted in par [7] above, pursuant to the Policy a sign may be approved only if the consent authority is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed. Billboard signs of the kind such as the subject sign did not exist when Canada House was constructed and, as noted by Mr Logan, painted signs, by their nature, are a more traditional form of sign and are therefore more appropriate as a backdrop to a significant heritage item.

69. These considerations suggest that not only is the expert evidence of the council, particularly that of Mr Logan, to be preferred to the expert evidence of the applicant, but the same considerations also persuade me that the application for modification should be refused.

Orders

70. Accordingly, I make the following orders:

(1) The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.

(2) The application to modify development consent is refused.

(3) The exhibits may be returned.

I hereby certify that the preceding 70 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 27 September 2002