Lederer v Sydney City Council

[2001] NSWLEC 272

Reported Decision: 119 LGERA 350

Land and Environment Court

of New South Wales

CITATION:

Lederer & Ors v Sydney City Council [2001] NSWLEC 272

PARTIES:

APPLICANTS:
Andrew Lederer, Gizela Fiala & Hexiva Pty Ltd

RESPONDENT:
Sydney City Council

FILE NUMBER(S):

10810 of 2000

CORAM:

Lloyd J

KEY ISSUES:

Development Consent :- advertisement and advertising structure - interpretation

Existing Use Rights: -consent granted under repealed environmental planning instrument - consent remains in force - not capable of abandonment

Orders:- section 121B Environmental Planning and Assessment Act 1979 - advertisement or advertising structure - grounds for issue of order - interpretation - modification of order - inadequate reasons

LEGISLATION CITED:

Central Sydney Development Control Plan 1996 cl 8
Central Sydney Heritage Local Environmental Plan 2000 cl7, cl 8
Environmental Planning and Assessment Act 1979 s 4, s 106, s 107, s 109, s 109B, s 121B, s 121H, s 121K, s 121L, s 121ZK
Local Government Act 1919
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Sch 3 cl 2(1)
State Environmental Planning Policy No. 64 - Advertising and Signage cl 11, cl 22

CASES CITED:

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67;
Auburn Council v Nehme (1999) 106 LGERA 19;
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440;
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50;
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 ;
Shannon v Lithgow City Council (1995) 88 LGERA 253;
Shire of Perth v O'Keefe (1964) 110 CLR 529;
Stutchbury v Pittwater Council (1999) 105 LGERA 1;
Sydney Serviced Apartments v North Sydney Municipal Council [No. 2] (1993) 78 LGERA 404;
Ulmarra Council v Clarence River County Council (1998) 101 LGERA 374;
Van Haasteren v South Sydney Council (2000) 109 LGERA 252

DATES OF HEARING:

13/08/2001, 14/08/2001 and 15/08/2001

DATE OF JUDGMENT:

12/03/2001

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr M G Craig QC
SOLICITORS:
Esplins
RESPONDENT:
Mr J E Robson (Barrister)
SOLICITORS:
Abbott Tout

JUDGMENT:

44

Andrew Lederer, Gizela Fiala and

Hexiva Pty Limited (ACN 001 485 356)

Applicants

v

Sydney City Council

Respondent

REASONS FOR JUDGMENT

1. The applicants are the owners of a building at No. 822 George Street, Sydney known as “Canada House”. The building is eight storeys high. The uppermost five floors extend above the roof level of the adjoining Westpac Bank Building to the west. The western wall of Canada House is thus visible above the roof level of the Wespac Building.

2. There is a large advertising sign on the western wall of Canada House which is visually prominent above the roof level of the Westpac Bank Building. The sign is a computer-generated image on stretched fabric held by a supporting metal frame which is either screwed or bolted into the wall. The image on the sign is capable of being changed from time to time by replacing the fabric held by the supporting frame.

3. As well as being prominent, the sign is large, having dimensions of about forty metres wide and about eight metres high. The applicants have leased the wall in question to Cody Outdoor Advertising Pty Ltd at a yearly rental of $240,000. The sign is illuminated by floodlighting affixed to metal arms which extend about 1.5 metres over the roof of the Westpac Bank Building. The applicants have leased part of the air space over the Westpac Bank Building to accommodate the lights.

4. On 1 August 2000 the respondent (“the council”) served upon the applicants an order under s 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) requiring the removal of the sign. The order states that it is issued pursuant to Item 5 in the Table to s 121B of the EP&A Act. The stated reasons for the making of the order are that the advertisement and the advertising structure do not have development consent and the sign is also considered to be objectionable. The applicants now appeal to the Court against the order pursuant to s 121ZK of the EP&A Act, relying (inter alia) on a development consent for an advertising sign granted on 19 December 1983.

5. As discussed below, the word ‘sign’ is not a highly precise term. This is probably why the Act instead uses the words “advertisement” and “advertising structure”. In this judgement I should make it clear, therefore, that in using the word “sign” I am referring to the advertising structure together with the fabric and any advertisement which happens to be displayed on it from time to time. I am not referring to a particular advertisement for a particular product.

The Issues

6. The applicants have put to the court thirteen questions of fact and law which they say are the issues in this case:

Giving the Order Under s.121B EPA Act (“the Order”)

[Omitted.]

[Omitted.]

Development Consent of 19 December 1983 (“the 1983 consent”)

“Existing Use” or Protection by Division 10 of Part 4, EPA Act

7. As will presently appear it will not be necessary, in the course of determining this appeal, to decide all of the above questions. In order to decide this appeal, I must make findings on four broad issues.

8. The first issue is whether the council was entitled to issue the order in the circumstances. The applicants’ questions 5 to 13 all go to this issue. This requires preliminary consideration of whether s 121B items 5(a) to (c) are cumulative or alternative grounds for the order. For the reasons set out below, I find that they are alternatives. The council only needs to show, therefore, that the sign is displayed contrary to the planning law, or that it is objectionable in the sense described in item 5(a). In considering whether it is displayed contrary to the planning law, it is necessary to determine whether it is either sanctioned by an existing use right or an extant consent. If that question is decided in the council’s favour, the question of whether it is objectionable under item 5(a) will not have to be decided.

9. The second issue is what action is actually required by the council’s order issued on 1 August 2000: the removal only of the advertisement which happened to be displayed on the subject structure at that time, or of the whole sign and structure. This is a question purely of construction. It was not raised in the applicants’ questions of law, but it was clearly raised at the hearing.

10. The third issue is whether the procedural requirements for the issuing of the order were satisfied. The applicants submit that the order is invalid either because changes made between the issuing of the notification and the final order were too substantial to be characterised as a “modification” under s 121K, or because they were made otherwise than in response to representations made by the applicants. The applicants further submit that the order is invalid because it does not contain an adequate statement of reasons as required by the EP&A Act. This issue is dealt with in the applicants’ questions 1 and 4.

11. The fourth issue is whether the court, possessing the same discretion as the council, should uphold the order, if it is valid. This is the merits question.

The Relevant Facts

12. The building known as Canada House was completed in about 1910. The adjoining building known as the Westpac Bank Building had been constructed in about 1894. Archival records show that the exposed western wall of Canada House above the roof level of the Westpac Bank Building had a painted advertisement displayed on it in about 1910. Subsequent photographic records show the exposed wall as having different advertisements painted on it, but there are photographs taken in 1977 and 1983 which show the wall blank.

13. On 23 June 1983 a development application was made for a proposed development described as follows:

Painting of Western Wall in conjunction with painting of Advertising Sign with Floodlights.

14. Under the heading “Details of proposed signs” on the development application form, the following is stated:

(a) Size: 10M x 40M
(b) Type: Paint
(c) Lettering: Traditional format - “Coca Cola” - Spenserian script with dynamic ribbon.

15. The following is also stated on the development application form:

Refurbish [sic] of badly deteriorated paint finish on western wall of commercial building. Advertising sign to offset costs of refurbishing.

16. By a notice of determination dated 21 December 1983 the council granted consent to “the development application”. The notice then states:

The conditions of the consent are set out as follows:-
See resolution attached dated 19.12.83
The reason for the imposition of the conditions are set out as follows: -
See resolution attached dated 19.12.83

17. The notice of determination includes, under the heading “NOTE”:

This development consent does not remove the need to obtain any other statutory consent necessary under the Environmental Planning and Assessment Act, 1979, or any other Act. In particular, your attention is drawn to the necessity to lodge –
(a) A Building Application where the erection or alteration of a building is proposed;
(b) an application under Ordinance No. 55 of the Local Government Act 1919, for licence for any sign.

18. The resolution attached to the notice of determination and dated 19 December 1983 is as follows:

Premises, “Canada House”, No. 822 George Street, Sydney – Development application. (44/83/0443).
That the Council as the responsible authority considers that the proposal to display an illuminated painted wall sign at the abovementioned premises constitutes a special case and, accordingly, grants its consent to the application submitted by J. Fiala and A. Lederer for permission to display such a sign on the external western wall of the building facing up broadway between levels 5 and 8, inclusive, and covering an area of some 696.75 m2, subject to the following condition, namely:-
That details of the colouring and wording of the proposed advertisement shall be submitted to Council with an application for an advertising licence, in accordance with the requirements of Clause 7(2) of Council’s Code of Regulations of Advertisements and Structures Used for the Display of Advertisements.
The reason for the Council’s consent being granted subject to the before mentioned condition, is as follows:
That the granting of unrestricted consent would be likely to cause injury to the amenity of the neighbourhood and further would not be in the public interest.

19. On 31 May 1984 an application was made to the council for a licence to erect a sign on the western wall of the building. The size of the sign was specified as being “40 m x 8 m; 320 m2”. The wording was “Fosters Lager” with a pictorial depiction of a can and glass of beer, to be white and blue with gold highlights. The material and “mode of construction” is said to be “paint”. On 1 June 1984 the council granted a licence for the period ending 31 December 1986. The sign so licensed was thereafter displayed on the wall.

20. Between 1986 and 1994 further signs were displayed on the exposed wall for which licences were issued by the council and for which the fees therefor were duly paid. The last record of a licence being paid for is a notice from Council dated February 1995 which refers to a painted wall sign displaying a “Tooheys Gold” sign and requesting an annual licensing fee of $13,200.00. The notice is endorsed by a register stamp which seems to indicate that it was paid.

21. Ordinance No. 55 made under the Local Government Act 1919 was repealed on 1 September 1995. Thereafter the wall was used for several different advertisements but no further licences were either applied for or granted for advertisements or advertising structures on the wall.

22. On 9 June 2000 the council served on the applicants a notice of its intention to give an order under the EP&A Act. The notice of intention to give an order, dated 9 June 2000, was in the following terms:

NOTICE OF INTENTION TO GIVE AN ORDER
The City of Sydney intends to give you an order under the Environmental Planning and Assessment Act 1979 (the “Act”).
Premises:
822 George Street Sydney.
(Property description Lot 2, DP 66316)
Circumstances:
The painted wall sign located on the exterior western wall between floor levels 5 to 8 inclusive, and currently advertising “Power Tel-Future: First” is not the advertisement approved by Council, and accordingly does not have development consent. The advertisement and the advertising structure are therefore displayed/erected contrary to a provision made by or under the Act. The sign is also considered to be objectionable, having an adverse impact on a public place, being the street and the streetscape.
Terms:
The terms of the order will be that the subject sign be removed, minimising damage to the building fabric.

23. In response to the notice, the applicants wrote to the council on 17 July 2000 stating, inter alia:

Consent for the display of advertisements on the premises was granted by Council on 19 December, 1983 (the Consent ). We have acted in accordance with the consent at all times since granting of the Consent .

24. The council replied to the applicants’ representation on 24 July 2000 in the following terms:

I refer to your letter dated 17 July 2000 in relation to the notice of intention to serve an order for the wall sign at 822 George Street.
Indeed, the development consent granted on 19 December 1983 approved an “illuminated painted wall sign”. It is evident that today’s structure is not the same sign Council gave consent to in 1983. However, if you have any documentation that would prove otherwise, please provide Council with the relevant information as soon as possible .

25. On 1 August 2000 the council served on the applicants an order which is in the following terms:

ORDER
This is an Order made under the Environmental Planning and Assessment Act, 1979, “The Act”.
Premises:
822 George Street Sydney.
(Property description Lot 2, DP 66316)
Circumstances:
The wall sign located on the exterior western wall between floor levels 5 to 8 inclusive, and currently advertising “Some people just seem to know how to travel. Are you one of them?” is not the advertisement approved by Council, and accordingly does not have development consent. The advertisement and the advertising structure are therefore displayed/erected contrary to a provision made by or under the Act. The sign is also considered to be objectionable, having an adverse impact on a public place, being the appearance of the building and the street in general being a public place near where the advertisement is displayed.
Terms:
The terms of the Order are:
That the subject sign be removed, minimising damage to the existing fabric.
Reasons:
The subject sign does not have development consent, and is considered to be objectionable, having an adverse impact on the appearance of the building and the street in general being a public place near where the advertisement is displayed.

26. The advertisement which was displayed on the sign at that time depicted a photographic image of a snow skier with the words:

Some people just seem to know how to travel. Are you one of them?
Beneath these words appeared the logos of a number of international airlines.

27. At the date of the hearing this advertisement had been replaced by a different advertisement.

28. Neither the advertisement which existed at the time of issue of the order on 1 August 2000 nor the present advertisement is painted onto the wall. It comprises an image printed or projected onto a vinyl membrane about one millimetre thick and which has been fitted into a six millimetre aluminium sail track fixed onto the exposed wall at the top, bottom and left-hand side of the membrane as viewed from the street. At the point where the vinyl membrane is fitted into the sail track it is about six millimetres proud of the face of the wall. Otherwise it sits flush against the face of the wall. The sign is illuminated from below by sixteen lights affixed to metal arms extending about 1.5 metres from the wall.

Planning Controls

29. In 1983 the requirement for development consent for the erection of advertising signs arose under the EP&A Act, in conjunction with cl 3 of Interim Development Order No. 21 – City of Sydney. Interim Development Order No. 21 predated the EP&A Act, having commenced on 25 July 1975. However, it was a deemed environmental planning instrument pursuant to Sch 3 cl 2(1) of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. Interim Development Order No. 21 provided at cl 3 that development could only be carried out with development consent, except for development for a small number of purposes, which did not include advertising or advertising structures. That requirement had continued force under the EP&A Act by virtue of s 76(2) which specified that if an environmental planning instrument provided that development could not be carried out except with consent, a person must not carry out such development except with consent and in compliance with such consent.

30. Before there had been any requirement for development consent for signs, there was a requirement for such signs to be licensed by the local council under Ordinance No. 55 made under the Local Government Act 1919. This requirement continued to apply in 1983 in addition to the requirement for development consent. Ordinance No. 55 commenced on 30 March 1973. The general conditions (cll 1 to 23) of this Ordinance were adopted by the Council of the City of Sydney on 25 February 1974 and reproduced in a document entitled “Code of Regulations of Advertisements and Structures Used for the Display of Advertisements” (“the Code”). The council also adopted four “Special Conditions” which were included at the end of the Code, and were additional to the requirements of Ordinance No. 55.

31. The council made reference to the Code in its resolution dated 19 December 1983. I therefore set out its terms as they may be relevant to interpretation of the consent. I note, however, that neither the Code nor Ordinance No. 55 on which it is based had force as environmental planning instruments in 1983 and, therefore they placed no statutory fetter on the council’s power to grant development consent under the EP&A Act.

32. Among the “Special Conditions” under the Code is the following:

Wording of Signs
Except where otherwise provided in item 9, Schedule 3 (roof signs) or Clause 8(2) (special cases) of the general provisions of the Code, the wording of all signs licensed under this Code of Regulations shall be limited to the name of any occupier or occupiers of a significant portion of the premises to which the sign shall be attached, and/or his or their business and/or of any commodities or goods sold on the premises, which may be notified in symbols. …

32. Schedule 3 to the Code also contains requirements relating to particular kinds of sign, including the following:

Item 14 Painted Wall signs

33. Clause 8(2) of the Code states:

The council shall not approve an application in respect of the erection of an advertising structure which does not belong to any class or type of advertising structure unless it is satisfied that due to the special circumstances of the particular case it would be unreasonable to refuse to approve the application .

34. It is apparent that in granting the development consent on 21 December 1983 the council had cl 8(2) of the Code in mind, since the consent would not have conformed with the general restriction on the wording of signs, noted above.

35. Ordinance No. 55 was repealed on 1 September 1995 and it appears that the Code fell into disuse after this time.

36. On 27 December 1996, Central Sydney Local Environmental Plan 1996 commenced. The subject land is within the City Edge Zone under this instrument. Clause 29(2) states that development for the use of land for the purpose of advertisements and advertising structures may only be carried out with development consent.

37. On 7 April 2000, Central Sydney Heritage Local Environmental Plan 2000 was made. This also requires consent for structural or non-structural alterations to the exterior of a heritage building or the erection of an advertising structure on a heritage item (see cl 7(1)).

38. Some changes to existing signs also require consent, according to Central Sydney Development Control Plan 1996, which applies to the site. Clause 8.1.22 provides:

A new consent is required in the case of proposals to change the dimensions and/or increase the illumination or the general impact of an existing sign. Changes to the advertising content of a Commercial Advertising Sign does not require consent other than in the Residential Zone.

39. I should also consider the impact of State Environmental Planning Policy No. 64 – Advertising and Signage (“the Policy”), which commenced on 16 March 2001.

40. Clause 11 of the Policy imposes the requirement for development consent before a person may display an advertisement.

41. Under the Policy a consent authority must not grant consent to an application to display an advertisement greater than 20 square metres or higher than 8 metres above ground unless the applicant has provided the consent authority with an impact statement that addresses certain specified assessment criteria, the application has been advertised in accordance with s 79A of the EP&A Act and a copy of the application has been given to the Director-General and to the Roads and Traffic Authority. In the 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 “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”.

42. The Policy expressly does not regulate the content of signage and does not require consent for a change in the content of signage (cl 3(2)).

Expert Evidence
Ms A Warr

43. Ms Anne Warr, the Council’s Area Manager, Heritage, gave evidence on the heritage impacts of the current sign as compared to the painted wall sign referred to in the consent.

44. According to Ms Warr, the current sign, “being an advertising hoarding with a constantly changing message” bears no relationship to the building and its occupants, whereas painted signs, which had been a feature of Sydney buildings since the early days of the city’s development, “have predominantly been related to advertising of the host building.” It is said that, unlike the current sign, “(t)hese signs have heritage value as they tell a story about the host building”.

45. Ms Warr said that a hand painted sign was a unique artefact, unlike a computer-generated image which could be mass-produced. “The relationship between a painter, the paintbrush and the sign” which is evidenced by a painted sign is fundamentally different from the process of producing a sign through printing technology. A painted wall sign must conform to the shape of the building. This in turn places design constraints on the sign, which would make it more unique by requiring any image to be adapted to the shape and features of the wall.

46. Ms Warr opined that the there is a facility with a printed sign to change it more frequently than a painted sign, which would have a negative impact from a heritage point of view, because it would provide a lack of continuity with the facade of the building. At the same time, the ability to produce more intricate designs through computer generation and printing would tend to create advertisements which were less sympathetic to the heritage character of the building.

47. Another advantage of a painted sign from a heritage point of view was said to be that it allows the texture and shape of the underlying wall to be seen through the sign, whereas a vinyl sign obscures the wall over which it is stretched. Ms Warr also pointed out that a vinyl membrane sign would tend to trap moisture against the wall of the building which might cause damage to the fabric of the wall in the long term, in addition to the damage caused by the fixing of the frame to the wall.

48. Ms Warr also gave evidence on the heritage context and impact of the sign from a merits point of view.

49. According to Ms Warr, whose evidence on this aspect is not disputed, the host building, Canada House, is a good and reasonably intact example of an early 20th century brick and stone Federation Free Style warehouse/ showroom building by the prominent Sydney architectural firm of Robertson and Marks. It is representative of the historical development of this area following the construction of the Central Railway terminus complex. It is visually dominant in the precinct of buildings of similar age and scale that surrounds Railway Square.

50. Ms Warr describes the building in its context as follows:

Broadway ends at the junction of Regent Street and Harris Street, where four prominent corner buildings herald the beginning of Railway Square. These four buildings are the Westpac Bank at 824 George St, Sutherlands Hotel at 2-6 Broadway, a retail and commercial building at 1-7 Broadway and the Agincourt Hotel at 871 George Street. All four buildings at this street junction are heritage listed.
The Westpac Bank building, completed in 1894, is a rare and well-executed example of the Federation Romanesque style of which few examples remain in the city. Its arched entry and twin cupolas above its chamfered corner distinguish the building and contribute to its strong streetscape presence. The cupolas resonate with the cupola of the retail building at 1-7 Broadway on the diagonally opposite corner, a fine example of the federation free classical style commonly used for utilitarian retail and commercial buildings in Sydney in this period.
These domes then resonate with the bolder, more elaborate dome of the Sydney TAFE building (former Marcus Clarke Building) and finally the stone dome of the Central station clock tower. These domes form a procession of increasing stature as one approaches the city.
Immediately behind the Westpac Bank Building at 824 George Street rises the eight storey west facing elevation of Canada House. Like 1-7 Broadway, Canada House was a utilitarian building constructed in the Federation Free Classical style.
Travelling down George Street, the road and the vistas widen, with the prominent facades of the former Marcus Clarke building, the former Parcels Post Office Building, the former Lottery Office Building, the former Orchard’s Chambers and Sydney Terminus coming into view, defining Railway Square. These early 20th century buildings, of differing scales and styles create the predominant townscape character of this precinct. Canada House, with its elaborate eight storey brick facade facing towards Railway Square is an integral and significant part of this early 20th century precinct.
.....

51. According to Ms Warr, the subject sign does not have any heritage significance in itself, but detracts from the heritage significance of the host building, surrounding heritage buildings and adjacent heritage streetscape. It totally dominates the western facade of the host building. It is said that its sheer size “overpowers the smaller scale and intricate detailing of the buildings in the heritage street scape”, and is especially detrimental to the setting of the Westpac Bank Building, in that it detracts from the legibility of its facade, especially the distinctive cupolas to which the sign forms a backdrop.

Mr J W Rannard

52. Mr J W Rannard, a town planning and development consultant, gave evidence for the applicants.

53. Mr Rannard expressed the opinion that the sign does not have any adverse impact on the streetscape or scenic quality of the locality. This is especially so because it obscures the “rather bland and uninteresting western wall of the building”. It does not impinge upon the ornate street facade, nor does not extend to the roof level, therefore it does not interfere with the distinctive parapet skyline of the building.

54. According to Mr Rannard, the use of the wall for the display of an advertisement is in keeping with an historic trend going back to around the time the building was constructed.

55. Mr Rannard states that both site-specific and product-oriented advertising has been a ubiquitous element of the built environment throughout the 19th and first half of the 20th century in Sydney. Other significant buildings in the area have been associated with large scale commercial signage since the mid to late Victorian period. Historically, the area along Broadway has been one in which large scale and highly visible advertising signage has predominated.

56. In Mr Rannard’s view, the current vinyl sign has no greater heritage impact than the signs which have previously been painted directly onto the wall of the building. Rather, it represents an evolution in the methods of presenting advertisements.

57. With respect to the sign’s relationship to the fabric of the heritage building Mr Rannard expresses the view that the sign would tend to protect the wall from the effect of the elements, including storms and sunlight from the west. He says that the changing of advertisements on the vinyl membrane would cause less damage to the wall than having to prepare and repaint it frequently as advertisements on the wall changed.

58. Mr Rannard does not accept that there is any necessary connection, however, between the new method of presenting the sign, and the frequency with which the sign is likely to be changed. Rather, the frequency will depend upon the duration of advertising contracts. He points out that, even if the sign were still displayed directly on the wall, there are methods such as collage and stencilling which could be used to create a new design very quickly without the necessity for every element of it to be hand painted, or alternatively, a new design could be created quickly by having several painters at work upon it at once.

59. Mr Rannard says that these methods could also be used to create a very intricate design, so that it is not necessarily correct to say that the vinyl sign will be of a different graphic style to a sign painted on the wall.

The Clive Lucas, Stapleton & Partners Report, 1989

60. This assessment of the heritage significance of Canada House was commissioned by the applicants in 1989 in response to the listing of the property on the Central Sydney Heritage Inventory. It affirms the heritage significance of the building in the Railway Square context. In particular, it states:

822 George Street makes a substantial contribution to the physical definition of Railway Square as an early 20th century urban precinct which is a principal element in the townscape of the city of Sydney.
822 George Street contributes to the overall architectural character of Railway Square; and the intersection of George Street, Broadway, Harris Street and Regent Street.

61. With regard to the advertising on the building it expresses the following opinion:

The advertising billboards of 822 George Street 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.
Mr W Spicer

62. The applicants tendered a facsimile statement from Mr Warwick Spicer of Cactus Imaging which provides a useful summary of the evolution of sign production techniques.

63. According to Mr Spicer, the use of a brush to apply paint to a wall has been “redundant for advertising purposes for approximately 40 years”. Since then, the term “hand painting” has commonly been used to refer to a technique of applying colour to signs by air brushing. This technique is described as follows:

When air brushing, the sign writer draws an outline then uses a spray gun and compressed air to force colour pigments (ink or paint) on to the surface. The colours are deftly blended to form the image.

64. He then goes on to describe the current method of sign production as follows:

Our first printers [of signs] were actually called air brush printers. The only difference between the “hand painting described above is that the hand was not on a spray gun but was on the keys of a computer to produce digital information that then caused the image to be spray painted through ink jets (which are like small spray guns) on to a thin veneer (vinyl) that could then be applied to a wall instead of the painter standing on a ladder or in a cherry picker.
In summary, in all of the application techniques used above paint (or ink) is always physically applied to a surface. It is the technology and method of application that has changed.
Technology continues to move on in the form of the development of the computer software and the accuracy of the print head producing the spray. The crafting of the image, however, still starts with a hand.
Power to Issue Order under s 121B of the EP&A Act

65. Section 121B of the EP&A Act enables the council to give an order to a person to do or to refrain from doing a thing specified in the Table to that section if the circumstances specified opposite in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

66. Item 5 of the Table specifies the thing which the council may order a person to do as follow:

To alter, obliterate, demolish or remove an advertisement and any associated advertising structure

67. The circumstances specified in Column 2 of the Table are as follows;

68. The person referred to in Column 3 is “the person who caused the advertisement to be displayed or advertising structure to be erected or the owner or occupier of the premises on which the advertisement is displayed or the advertising structure is erected”.

69. The question which the applicants have raised - whether the council is empowered to issue an order under s 121B in spite of the sign being protected by a current development consent - is really a question of whether the bases for issuing an order listed in Column 2, sign is erected or the advertisement is displayed contrary to the Act and that the sign is “objectionable”, are alternative or cumulative criteria.

70. In my opinion it is clear that these are intended to be alternative bases for issuing the order. The way in which they are set out, with no conjunctives between them suggests that this is the case. Moreover it is improbable that parliament would have intended (b) and (c) to be cumulative, therefore, why should (a) be such?

71. Reading the rest of the Table confirms that the circumstances listed next to each item in Column 2 are intended to be alternatives. For example, against item 1 (“to cease using premises for a purpose specified in the order”) the circumstances are as follows:

72. Use for a prohibited purpose; use for a purpose for which development consent was required but had not been obtained; and use in breach of development consent, are obviously mutually exclusive concepts. To my mind this puts it beyond doubt that the criteria listed in Column 2 against each item in 121B are intended to be alternative bases for issuing the order.

73. Therefore the council only needs to show that the development is not lawful, or that it is objectionable within the meaning of item 5(a).

Construction of the 1983 Consent
The Applicants’ Submissions

74. Mr M G Craig QC, appearing for the applicants, submits that the vinyl membrane sign currently on the wall of Canada House complies with a current consent, that is, the notice of determination issued by the council on 21 December 2001.

75. That notice refers to the need to obtain a licence “for any sign” under Ordinance No. 55, which the respondent says is a requirement to obtain council’s approval for each change of advertisement on the wall. Admittedly the applicants have not sought approval since 1995 for changes of advertising content on the sign. Mr Craig submits, however, that this condition is no longer operative since Ordinance No 55, to which it refers, has been repealed, and not replaced by any system of licensing for changes in the content of advertising signage.

76. The other question is whether the current vinyl membrane sign is sanctioned by the notice of determination, which refers to a “painted wall sign”. Mr Craig submits that the 1983 consent, in the context of the controls then regulating advertising signage in the City of Sydney, should be read as authorising any flush sign on the wall of Canada House. According to Mr Craig, this interpretation is supported by reference to the Code. Schedule 1 of that document, in effect a definition section, gives a description of several classes of advertising structure, one of which is a “flush wall sign”, being a sign “[a]ttached to the wall of a building (other than the transom of a doorway or display window) and not projecting horizontally more than 12 inches from the wall”. Another is a “commercial sign” which is restricted in size and must relate to an occupant of the building. Schedule 3 at item 14 contains a reference to “painted wall signs” which says that where the greater part of a building is used by one occupant a sign “of a commercial nature” occupying not more than half the wall space may be displayed on a side wall.

77. According to Mr Craig, because the sign consented to in 1983 did not relate to the use being made of the premises, it was neither a commercial sign nor a painted wall sign as defined in the Code. It must therefore fall into the category of “flush wall sign”. The terms of the Code envisage that a flush wall sign may be on a medium other than the wall.

78. Mr Craig further submits that the court may have regard to the planning impact of the subject sign as compared to a sign which is painted directly onto the wall to determine whether there are any relevant differences. He submits that the vinyl membrane sign does not have any distinct planning impact. He contends that the phenomena to which the respondent has referred, such as high turnover and the intricacy of designs are attributable to the market and the state of technology rather than the changed nature of the sign; and he relies on Mr Rannard’s evidence to show that this might equally occur if the sign were painted directly onto the wall.

79. It is also contended that the erection of the six-millimetre sail track and spreading across it of a vinyl membrane to create the present sign, is not development so as to require consent under the EP&A Act. Mr Craig cites my decision in Ulmarra Council v Clarence River County Council (1998) 101 LGERA 374 and the authorities referred to therein for the proposition that the concept of “structure” should not be read too literally in determining what does and does not require planning consent; that in a case such as this where the planning impacts are non-existent the sail track should not be regarded as a structure.

The Respondent’s Submissions

80. Mr J E Robson, appearing for the council, firstly submits that the licensing requirement referred to in the consent has been replaced by cl 8.1.22 of the Central Sydney Development Control Plan 1996, and that there is therefore an ongoing requirement for licensing of the sign, which has not been complied with.

81. Secondly, Mr Robson submits that the vinyl membrane sign does not fall within the terms of the development consent granted in 1983. That development consent was for a painted wall sign, which in terms of finish, content and nature is very dissimilar from the sign erected today. He refutes the applicants’ suggestion that the changing form of the sign merely represents a technologically advanced version of what was originally consented to. The printing of a sign by computerised technology onto a screen is qualitatively different, he says, from the actual painting of a sign onto a wall.

82. Mr Robson further submits that the erection of the sail track would require consent under the current Central Sydney Heritage Local Environmental Plan 2000 which specifies at cl 7(1)(b) that consent is required for “structural or non-structural alterations to the exterior or interior of a heritage item”, and at cl 7(1)(d) that consent is required for the “erection of a sign or advertising structure on a heritage item”. He submits that consent has been required for such activities under the applicable heritage local environmental plans since at least 1992.

83. The construction of the sail track should also be regarded as development for the purposes of the Act, according to Mr Robson, because it was significant in town planning terms, being large in terms of the area covered by the new sign and because it involved interference with the fabric of a heritage building. The innovation was also significant because it allowed for a more intricate design to be represented and for the design to be changed more frequently.

Conclusions

84. The question of what is authorised by the consent which was granted in 1983 may only be resolved by looking at the consent itself, together with any documents incorporated into it expressly or by necessary implication (Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No. 2] (1993) 78 LGERA 404 at 407-8). The council’s Notice of Determination, dated 21 December 1983, expressly incorporates the development application and the council’s resolution dated 19 December 1983. The resolution in turn makes reference to the council’s Code.

85. I will first consider the alleged requirement to obtain approval for changes in advertising signage.

86. The requirement to obtain a licence under Ordinance No. 55 is not expressed to be a “condition” in the notice of determination, rather it is merely noted by way of clarification that the consent does not relieve the applicants of the obligation to obtain that licence. Reading the notice on its own, I would have no hesitation in finding that the consent does not itself require the licensing of the sign content, but merely points to a requirement which arises elsewhere under another instrument. The notice of determination cannot be read totally in isolation, however, as it expressly incorporates, under the heading “conditions”, the council’s resolution of 19 December 1983.

87. In that resolution, quoted above (at par [18]), consent is expressed to be granted subject to the “condition” that “details of the colouring and wording of the proposed advertisement shall be submitted to Council with an application for an advertising licence, in accordance with the requirements of Clause 7(2) of Council’s Code of Regulations of Advertisements and Structures Used for the Display of Advertisements”. It is to be noted that the condition refers to “the proposed advertisement” in the singular, not to subsequent changes of content or periodic licensing of the sign. Reading the notice of determination and the resolution together, I am lead to the conclusion that the effect of this condition was to require compliance with the council’s licensing code as a condition precedent for commencement of the development. Thereafter, any licensing requirements were dictated by the relevant instruments. They were not a condition of the consent.

88. It is also necessary to consider the terms of the development application.

89. The development application was made on a council form which contains a heading “Details of proposed signs”, under which the applicants have filled in the required information: that the sign is to be 10m by 40m, the “Type” is “paint”, and the lettering is “Traditional format – “Coca Cola” – Spencerian script with dynamic ribbon”. These details do refer to a particular advertisement. However, it has never been suggested by the council that consent was only sought, or granted, to the erection of that advertisement. Nor does the nomination of the wording create any implication that subsequent changes of content are to be subject to the council’s approval. The details may have been requested for practical purposes so as to enable the council to consider the issue of the initial licensing of the sign at the same time as it considered the development application.

90. To my mind this is quite consistent with the council having granted consent to an advertising sign, the content of which would be variable but subject to such regulation as was provided under such other instrument as may apply from time to time.

91. As noted above, Ordinance No. 55 was repealed on 1 September 1995 and it appears that the council also ceased to require licensing under the Code from that time onward.

92. I am not convinced that any of the current planning instruments require licensing for advertising changes on existing signs.

93. Clause 8.1.22 of the Central Sydney Development Control Plan 1996, which appears under the heading “Period of Consents and Changes to Signs”, reads as follows:

A new consent is required in the case of proposals to change the dimensions and/or increase the illumination or the general impact of an existing sign. Changes to the advertising content of a Commercial Advertising Sign does not require consent other than in the residential Zone.

94. This clause requires development consent for certain modifications to signs, not the renewal of ongoing licences in respect of signs. It does not stand in the place of the licensing provisions referred to in the consent.

95. I therefore find that the applicants are not in breach of the consent for failure submit license applications periodically, or in respect of new advertisements on the wall.

96. Next it falls to be determined whether the 1983 consent authorises the sign which is currently on the wall, being a vinyl membrane sign attached to an aluminium track which sits 6mm from the surface of the wall.

97. The recent decision of the Court of Appeal in House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440 set out the principles applicable when construing the scope of what is permitted by an historical consent. That case concerned whether an extant consent to use a building as a “church”, granted to the Presbyterian Church of New South Wales in 1954, authorised the use the premises as a mosque in 1995.

98. Mason P stated that because an “extant development consent” was a “species of existing use right”, the same liberal principles should be observed in its construction. (at 449-450). The fact that a development consent operates in rem and indefinitely in respect of a parcel of land should also be born in mind:

The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a land owner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later. (at 450)

99. Mason P also cited the following passage from North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 59:

genus which best describes the activities in question.

genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.

100. It should be noted, however, that in that case, as in Shire of Perth v O’Keefe (1964) 110 CLR 529, the court was concerned to categorise the nature of a past existing use rather than construe a consent. For that reason it was necessary to look at the details of what was taking place on the land at the relevant date in order to arrive at a conceptual categorisation of that use, before the court could proceed to determine whether other activities also fell into that conceptual category. Where the court is instead concerned to determine what is permitted by a consent actually before the court, the same principles may be applied, but the focus is on the words of the consent. As Mason P said in House of Peace, “[t]hat which is to be construed, in the final analysis, is the... consent”.

101. House of Peace offers the following guidance as to the construction of the text of a consent and the permissibility of averting to the context of the consent:

How then is the language of historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to “what, objectively determined, it might be said the Council meant by the permission which it gave to the... predecessor [ in title ] ”. I respectfully agree, but with this emphasis. The search is not for what the council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument [which operates in rem ]... it must speak according to its written terms, construed in context but having regard to its enduring function.... (at 449)

102. A case which is analogous to the present is ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67. In that case there was a consent to use the subject land for a purpose described as “manufacture re-agent chemicals”. One issue was whether the appellant’s business of receiving and processing grease trap waste was permitted by the consent. The Court of Appeal came to the conclusion that it was not:

... it would be to torture the language of the Council’s permission to conclude that the manufacturing process (in which I have held the appellants to be engaged) was manufacturing of “re-agent chemicals”. Although “chemicals” may have been “manufactured”, in a broad sense of that noun, the adjective “re-agent” qualifies “chemicals”. It cannot be wished away. It limits the “chemicals” for whose manufacture permission was given, to “re-agent” chemicals. I do not consider that the product of the processes of distillation on the part of the appellant can be properly described by that term..... I do not consider it to be permissible, having regard to the precise and narrow terms in which the Council’s permission was expressed, to extend the class of permission to a broader category of “chemical manufacture”. If this had been so, the Council would not have used the limiting adjective which it did.... (at 80)

103. I similarly find in the present case that the terms “painted wall” impose a limitation on what might otherwise be a consent for the display of advertising signage generally. The highly specific description of the sign in the consent and incorporated document prevents me from finding that the consent encompasses the kind of sign which is now on the wall.

104. The resolution of the council describes the consent as being for the display of an “illuminated painted wall sign”. It must have intended, by using this expression, to meaningfully distinguish this sign from other kinds of sign. By describing the sign as painted, the council directs that the advertisement should be displayed on the wall using “paint” as that word is commonly understood, not simply any medium which is capable of creating colours. Outside of this courtroom, I have never heard ink from a printer referred to as “paint”. By describing the sign as a “painted wall”, it is conveyed that the paint should be applied to the wall, not to some membrane which happens to be fastened, however closely, to the wall.

105. I am not persuaded by the applicants’ submission that, in the terms of the Code, Council must have consented to a “flush wall sign”. A “painted wall sign” is not defined in the Code, probably because the term was thought to be self-explanatory. The criteria for painted wall signs in Sch 3 Item 14 are not definitional, but limit the circumstances in which consent will normally be granted for such a sign. The council’s resolution refers to the proposal as a “special case”, which shows that the council was aware that the sign, in spite of being a painted wall sign, did not fit the Item 14 criteria. In my view this assists the council, because it can be said that it attached some significance to the fact that the sign was to be painted on the wall rather than presented on some other medium affixed to the wall.

106. I do not find it necessary to decide whether the affixing of an aluminium track to a wall and stretching across it a vinyl membrane is itself “development” for the purposes of the EP&A Act. Whether or not the erection of this item in isolation would have constituted development is not the question. There is no dispute that an advertisement on a wall is something which requires consent. The question is, therefore, whether what is currently there is sanctioned by the current consent. It is clear to me that the sign at present on the wall is not something which conforms with the consent which has been granted.

Application of Pt 4 Div 10 of the EP&A Act
The Applicants’ Submissions

107. Mr Craig QC submits that there has been continuing use of this wall for the display of advertisements since prior to the introduction of planning controls. Therefore, the 1983 consent was unnecessary to render the use lawful, because it was in any case protected by s 109 of the EP&A Act.

108. According to Mr Craig, the respondent’s evidence does not prove that the wall contained no sign between 1977 and 1983. There has admittedly been no systematic recording of the advertisements on the wall, so that it is possible that other advertisements were displayed on the wall during that time. Therefore a physical cessation of use of over one year has not been demonstrated so as to give rise to the presumption under s 109 (3) that the use has been abandoned.

109. Alternatively, Mr Craig submits that there is a consent in force - the 1983 consent, which pursuant to s109B enures forever, and cannot be abandoned and which sanctions the display of the subject sign.

The Respondent’s Submissions

110. Mr Robson submits that the 1983 photograph taken together with correspondence with council concerning the need to paint the wall shows that prior to 1983, for at least a number of years, the wall had not been used for the display of advertisements. This gives rise to the presumption under s 109(3) of the EP&A Act that the use for the purpose of a painted wall sign was abandoned. The applicants have not adduced any evidence to rebut this presumption.

111. As to the 1983 consent, Mr Robson submits that the change to a vinyl membrane sign should be regarded as an abandonment of the use for a “painted wall sign” which was authorised by the consent. Mr Robson submits that the effect of the decision of the Court of Appeal in Auburn Council v Nehme (1999) 106 LGERA 19 is that once the planning instrument under which a consent was granted is repealed, a consent is no longer protected as an existing consent under s109B of the Act, but rather the use is protected by the continuing use provisions of the Act, and is therefore capable of abandonment.

Conclusions

112. The applicants’ questions of law refer to an “existing use” of the wall. It was conceded, however, that the wall cannot be the subject of an existing use as defined in s 106 of the EP&A Act, because that requires that the use should have become prohibited by a planning instrument. There is not currently any absolute prohibition against the display of an advertisement on this site.

113. Rather the question is whether the use is protected by s 109 of the EP&A Act, which is as follows:

109 Continuance of and limitations on other lawful uses
(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.
(2) Nothing in subsection (1) authorises:

(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

114. The evidence shows that there have been advertisements on the wall of this building since before the introduction of the first instrument requiring planning consent for advertising signs, being Interim Development Order No. 21 – City of Sydney, which commenced on 25 July 1975. It seems clear, however, that any continuing use of the wall for the purpose of advertising was abandoned between 1977 and 1983.

115. In my view, the 1977 photograph which shows that the wall was freshly painted, and the 1983 photograph showing the wall painted but in a deteriorated state, taken together, provide prima facie evidence that the wall was not used for advertising during this period. The reference to “badly deteriorated paint” in the development application would also support an inference that there had not been an advertising sign on the wall for some time. This enlivens the presumption under s 109(3) that the use has been abandoned.

116. The applicants have not been able to adduce any evidence either to show that there were advertisements on the wall during this period, or to rebut the presumption that this period of disuse constituted an abandonment. I find, therefore, that the use of the wall for the display of advertisements was not protected by s 109(1). Rather, consent was required for the resumption of the advertising use in 1983.

117. Although I have found that the current use of the wall for the display of a vinyl membrane sign is not in accordance with the 1983 consent, a real question arises as to the current status of that consent; that is, whether it continues in force so as to permit the applicants to again make the use of the wall for a painted wall sign.

118. The decision of the Court of Appeal in Auburn v Nehme confirms the principle that a consent cannot be abandoned. If the consent is in force, therefore, it will continue to apply today irrespective of the uses made of the property in the intervening period. It will be protected by s 109B of the Act which is as follows:

Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

119. As Mr Robson pointed out, however, the Court of Appeal in Auburn v Nehme also found that there were limitations on the circumstances under which a consent will be regarded as being in force, if the planning instrument under which it was granted had been repealed. In that case it was inferred that consent had been granted to the use of premises as squash courts prior to 1970, under the Cumberland Planning Scheme Ordinance. In 1970 the Auburn Planning Scheme Ordinance had come into force prohibiting squash courts in that area. It was found that the consent had ceased to have effect in 1970, although the use itself continued to be protected by the existing use provisions of that ordinance and later under similar provisions of the EP&A Act. That protection was lost with the abandonment of the use sometime in 1990. The consent was therefore no longer in force and the use was no longer lawful when s 109B was introduced into the Act in 1992; therefore, the subject site did not benefit from the protection afforded by this section.

120. Handley JA expressed the reasons of the Court as follows (at 25-26):

The use of land which is authorised by a valid consent is lawful while the planning instrument under which it was granted remains in force. In the absence of appropriate transitional provisions, the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The repeal of that planning instrument, and its replacement by another, will, without more, deprive that consent of further effect.

Where the new planning instrument absolutely prohibits the use previously authorised by a consent, that consent can have no direct operation on that prohibition. The irrelevance of that consent as a protection against that prohibition will not be affected by a transitional provision which continues that consent in force, or deems it to have been granted under the new planning instrument. The prohibition being absolute, the existence of a past consent is an irrelevance.
....
It is now possible to determine the effect of s 109B in this case. The section only applies to a consent which is “in force”, and in my judgement it has no application to the inferred consent which ceased to be “in force” as a consent on the commencement of the Auburn Ordinance in 1970...

121. Although the statement that “the effect of a consent will not extend beyond the life of the planning instrument under which it was granted” was made in general terms, Handley JA was concerned with a consent granted under an earlier ordinance, not a consent granted after the making of the EP&A Act. Different considerations apply in respect of a consent granted within the framework of the present regime.

122. Firstly, a consent granted under the EP&A Act is not granted pursuant to an environmental planning instrument, but pursuant to the Act itself. Section 80(1) of the Act provides the source of power for a consent authority to grant consent. It is not the function of the environmental planning instrument to provide the power to grant consent. The role of the environmental planning instrument (which may be an instrument made pursuant to Pt 3 or deemed environmental planning instrument such as Interim Development Order No. 21 – City of Sydney) is, firstly, under ss 76 to 76B to provide whether certain development, during the currency of the instrument, may be carried on without consent, only with consent, or neither with nor without consent; and secondly under s 79C to provide matters which the Council is to take into consideration when deciding whether or not to grant consent. That being the case, there is no reason why a consent granted under the Act should not be regarded as being “in force”, simply because the repeal of an environmental planning instrument has changed the considerations which will govern the grant of future consents and, possibly, also the consequences which will flow from having or not having an extant consent. If the latter instrument absolutely prohibited the use, it is true that the consent would provide no protection against s 76B which provides that if an environmental planning instrument stipulates that development is prohibited in an area, “a person must not carry out development on the land”, but this only touches on the lawfulness of the use, not the validity of the consent.

123. Moreover, the EP&A Act specifically provides at sub-s 34(4) that the repeal of an environmental planning instrument does not affect any right or privilege acquired under the previous instrument. I would regard development consents as being foremost among the rights or privileges which may be granted under an environmental planning instrument. That sub-s is as follows:

34(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect –

(ii) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument; or...

124. I therefore find that the 1983 consent, granted under the current Act, although not under the current environmental planning instrument, is a consent still “in force” within the meaning of s109B of the Act. Because it has remained in force all along, no change in the use in the intervening period can be found to have effected an abandonment. The applicants are therefore entitled to carry out development in accordance with that consent, although that consent does not authorise the display of the present vinyl membrane sign, as discussed above.

Construction of the s 121B Order
The Applicants’ Submissions

125. Mr Craig QC submits that the effect of the order is spent because, on its terms, it only requires that a particular advertising sign be removed, namely the sign bearing the message “Some people just seem to know how to travel. Are you one of them?”. At the date of the hearing the advertisement referred to in the order had in fact been removed and replaced by a different advertisement.

126. Aspects of the order which are said to support the interpretation that it is directed to a particular advertisement are the statement that the “advertisement” has not been approved and the reference to the sign’s adverse impact (which might be construed as referring to the aesthetic design of the particular advertisement). The fact that the council chose to issue its order pursuant to item 5 of the Table at s 121B which is directed specifically to advertisements and only incidentally to the associated advertising structure also sits well with this interpretation.

127. According to Mr Craig, the Court does not need to inquire whether anyone was in fact misled by the notice. In light of the potential consequences that befall a person who fails to comply with such an order the public authority issuing an order has an obligation to indicate what is required with some particularity and certainty.

The Respondent’s Submissions

128. Mr Robson submits that the council’s order is quite clearly directed to the wall sign and associated structure, not merely the advertisement which happened to be displayed on it at that time. Under the heading “Circumstances”, the order states that both “[t]he advertisement and the advertising structure are... displayed contrary to a provision made by or under the Act”, thereby directing the recipient’s attention to both items. The reference to what is “currently displayed” on the sign is merely by the way of identification.

129. Mr Robson submits that in this context, the word “sign”, in the statement requiring that “the subject sign be removed, minimising damage to the existing fabric” should be understood as referring to both the membrane and the supporting structure. This is especially so because it is only if the supporting structure is to be removed that damage to the fabric of the building would be an issue.

Conclusions

130. The words “advertisement” and “advertising structure” are defined in s 4 of the EP&A Act as follows.

advertisement means a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water.
advertising structure means a structure used or to be used principally for the display of an advertisement.

131. The order issued 1 August 2001 uses neither of the above terms, but instead uses the word “sign”, which is somewhat ambiguous. It seems to me that in ordinary language, the word “sign” is capable of being understood as referring to either an advertisement, that is, a particular image and message; or the image taken together with the board or canvas or other medium on which it is painted or printed; or more broadly still, as encompassing the image, the medium, and any associated structure used for its display.

132. The use of the word “sign” in the above definition, to define the “advertisement” as distinct from an “advertising structure”, shows that the drafters of the Act had in mind the narrowest meaning of the word “sign”. This would tend to favour a reading of the notice which equated the term “sign” with the term “advertisement”, but it is not conclusive.

133. The terms of the order as a whole do not clearly show in what sense the word is being used.

134. Under the heading “circumstances”, the order refers to a “wall sign... currently advertising” a certain product. This tends to identify the subject of the order as being the structure as a whole, because it would not make sense to say that the sign currently bore a certain advertisement, if by “sign” the order intended to refer to the advertisement itself. However, in the same sentence it is said that this “is not the advertisement approved by Council” which would only make sense if the word “sign” were being used as a synonym for the word “advertisement”. We have two contrary indications in the one sentence of what the order is referring to.

135. The next sentence commences by referring to “[t]he advertisement and the advertising structure”. This conveys that there is a problem with both, but is not conclusive of the fact that the order is directed to both. Nor does the statement of council’s objections at the end of this paragraph provide any clarification. These objections could apply equally to an advertisement or an advertising structure.

136. Thus when it comes to the actual terms of the order, where the word “sign” is used, I do not believe that the order clearly conveys that the structure as a whole, as distinct from a particular advertisement, is to be removed. It is true that “damage to the existing fabric” is less likely to be an issue if the advertisement alone has to be removed, but to me this does not overcome the ambiguity of the notice as a whole.

137. It has been said of development consents that, given that a consent “is not personal to the applicant, but enures for the benefit of subsequent owners and occupiers”, the council must bear the consequences of any ambiguity:

Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject. (Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324.)

138. Given the serious consequences which can follow upon non-compliance with an order under s 121B of the Act, including prosecution for a criminal offence (s 125), there is the more reason for construing against the council any ambiguity in the order.

139. I find that this order is utterly ambiguous, and therefore construe it as suggested by the applicants, as referring only to the advertisement displayed upon the wall at the time that the order was issued. This being the case, and the advertisement in question having been removed before the commencement of this hearing, the applicants need do nothing further to comply with the order.

140. It is not necessary for the applicants to show that they were mislead by the order. Since I have construed the order in their favour, they have simply fulfilled what the order required. Whatever apprehension they may have had, arising out of their dialogue with council officers, of what the council intended to require by way of the order is not relevant. That does not give rise to any legal obligation.

Procedural Validity of the Order
The Applicants’ Submissions

141. Alternatively, it is said that the order does not comply with the Act, because there is a difference between the notice of intention to give an order and the final order, in that the notice requires the removal of a sign bearing an advertisement for “Power Tel Future First”, whereas the final order requires the removal of a different sign. There is a power in the Act, at s 121K, to modify the order between the issuing of the notice of the proposed order and the final order. Mr Craig submits, however, that the modification made by the council in this case was not permissible. This is so firstly because the Act anticipates that any such change will be made in response to representations made by the person to whom the notice was issued, whereas this change was not prompted by any representation by the recipients of the notice. Secondly, it is submitted that the section does not permit a modification which changes the subject matter of the order, as in this case, from one sign to another. To do so would nullify the intention of the section which is to allow for meaningful representations to be made and responded to with respect to the subject matter of the proposed order.

142. Further alternatively, Mr Craig submits that the order is invalid for failure to give reasons for the issuing of the order, pursuant to s 121L of the Act. It is said that the matters referred to under the heading “Reasons” do not discharge the responsibility to give reasons, because they are merely a statement of the factors which give rise to the entitlement to issue the order (Stutchbury v Pittwater Council (1999) 105 LGERA 1). In particular, it is submitted that where a council has a statutory discretion whether or not to issue an order in certain circumstances, and the council elects to use that discretion, then the council must give reasons to indicate why the discretion is being exercised in favour of issuing the order (Van Haastenen v South Sydney Council (2000) LGERA 252 109).

The Respondent’s Submissions

143. Mr Robson submits that the difference between the notice of intention to give an order and the order itself is de minimis, having regard to the fact that the changed reference to a particular advertisement was merely for identification purposes and did not touch on the substance of what had to be done. He further submits that the power to modify the order is not conditional upon any representation being received.

144. In response to Mr Craig’s argument regarding the requirement to give reasons, Mr Robson submits that I should not follow Stutchbury v Pittwater Council in finding that a restatement of the criteria which entitles the council to issue the order can never constitute an adequate statement of reasons. Firstly, because Sheahan J’s statement of principles was broader than was necessary to decide that case, where virtually no reasons were in fact given for the council’s order. Secondly, taking a purposive approach, I should find that if reasons are intended to indicate to the recipient the reasons which have driven the council to issue the order, it is possible that there will often be a coincidence between those reasons and the matters set out in the Act which enliven the power to issue the order, but that they nonetheless may perform the role of relevantly informing the recipient of the council’s motives. Thirdly, because the findings in the above cases are inconsistent with the findings of the Pearlman J in Shannon v Lithgow City Council (1995) 88 LGERA 253 which, it is submitted, are more consistent with the scheme of the Act.

Conclusions

145. When giving an order under s 121B, except in the case of an emergency, a council must comply with procedures in ss 121F to 121K (see s 121D). These include the requirement to give notice of a proposed order pursuant to s 121H:

Notice to be given of proposed order
(1) Notice to whom the order is to be given
Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.
(2) The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order.

146. The council must then consider any representations made in response to the notification (s 121J).

147. The power to modify the terms of the order between issuing the notice and the actual order is contained in s 121K, which is as follows:

121K Procedure after hearing and consideration of representations
(1) After hearing and considering any representations made concerning the proposed order, the person who gives the order or the nominated person may determine:

(2) If the determination is to give an order in accordance with modifications made to the proposed order, the person who gives the order is not required to give notice under this Division of the proposed order as so modified.

148. The section does not expressly require that any modifications must be made in response to representations made concerning the proposed order and, in my opinion, there is no necessity to read such a requirement into the section. The objective of allowing the recipient to have a meaningful hearing on the order will continue to be satisfied if subsequent modifications do not relate to submissions made, so long as those modifications do not alter the subject matter of the order.

149. Having construed the order as I have, however, it is clear that there is a difference in substance between the notice of intention and the final order. The first was directed to the removal of a particular sign, the Power Tel sign, whereas the second was directed to the removal of the “Some people just seem to know how to Travel” sign. I agree with Mr Craig’s submission that this cannot properly be called a modification because it constitutes a fundamental change in what is required by the order. It is in substance a different order. To validly issue it, therefore, the council was required to give a further notification and a further opportunity to make representations. Since this has not been done, the order is invalid.

150. Although it is not now necessary to decide the question, for completeness I will also consider whether the order is invalid for failure to give reasons since the question was argued.

151. The content of the obligation to give reasons under s 124 of the Local Government Act 1993 (which performs the same role, and is in almost identical terms to s 121B of the EP&A Act) was considered at length in Stutchbury v Pittwater Council. The order the subject of consideration there was an order to connect to the sewer. The reason was said to be that the applicant’s house was within 75 metres of a sewer, which was also the circumstance which enlivened the council’s power to issue the order.

152. In that case Sheahan J, after a careful consideration of authorities and the principles governing the requirement to give reasons, adopted the following propositions put forward by counsel for the applicant (at 16):

153. This led his Honour to find that the council had not given adequate reasons in the order.

154. Sheahan J’s reasons in that case were endorsed by Bignold J in Van Haasteren v South Sydney Council. In Van Haasteren, Bignold J also expressed the view that the discretionary nature of the power under s 121B governed the content obligation to give reasons (at 258):

Once the nature of the power conferred by s 121B is truly appreciated (both as to (i) the circumstances that enliven it; and (ii) the discretionary basis for its exercise), it becomes tolerably clear that the “reasons” that s 121L requires to be given are the reasons for exercising, in the particular case, the discretionary power.

155. I see no reason to depart from their Honours’ statements of principle in the above cases. They are derived from a careful consideration of authorities and a purposive interpretation of the Act. As Sheehan J said in Stutchbury, “the requirement that council provide reasons is eminently appropriate, given that a failure to obey a council order can result in both civil and criminal consequences” (at 11). The requirement to give reasons is meaningless and of no use to the recipient of the order if the courts do not demand reasons which disclose the true basis of the decision. Armed with adequate reasons, the recipient should be in a position, either to be satisfied that the decision to issue the order has been properly reached, or to know upon which grounds it would appeal against the order.

156. I agree with Mr Robson that Stutchbury and Van Haasteren are difficult to reconcile with Pearlman J’s findings in the earlier case of Shannon v Lithgow City Council. I do not find anything in her Honour’s reasoning in that case, however, which persuades me that I should not follow the two later cases.

157. In Shannon an order had been given requiring the applicant to reduce the number of dogs kept on her property. One of the circumstances which empowered the council to issue such an order was that there was an inappropriate number of animals being kept on the premises. The council’s stated reason was said to be “[t]o reduce the number of dogs being kept on the premises to an appropriate number of four (4) dogs”. It was submitted that the reason was inadequate because the order failed to state the basis upon which four was considered to be an appropriate number. Pearlman J rejected this ground of attack, saying that it did not derogate “from the sufficiency of the reasons given that the specification of four dogs as an appropriate number may be arbitrary”. Her Honour added (at 258) that if the applicant wished to challenge the appropriateness of the number four, the appropriate course would have been to challenge the order on appeal, which the applicant had not done.

158. The statement of reasons which was accepted in Shannon may not satisfy the test set out in Stutchbury. It does not appear, however, that Pearlman J in the former case had the benefit of any argument on the issue of what would constitute an adequate statement of reasons in those circumstances. Neither was her Honour’s attention drawn to the cases which were discussed in Stutchbury showing how the requirement to give reasons had been interpreted in the context of other legislation. The statement of reasons appears to have been attacked solely on the grounds of arbitrariness, which her Honour did not find persuasive.

159. As a consequence, the judgement in Shannon does not contain any contrary statement of principle which would persuade me not to follow Sheahan J’s findings of law in Stutchbury.

160. The subject order gives the following statement of reasons:

The subject sign does not have development consent, and is considered to be objectionable, having an adverse impact on the appearance of the building and the street in general being a public place near where the advertisement is displayed.

161. As noted above, the criteria which entitle the council to issue the order under item 5 of the Table to s 121B are as follows:

162. The statement that the subject sign does not have development consent comes under (b), that is to say that the sign is displayed contrary to the Act. It does not add much to what is already stated as a criterion for making the order, save that it specifies the way in which the sign contravenes the Act, being the absence of development consent. The statement that the sign is “considered to be objectionable”, and “has an adverse impact...” appears to encompass both the grounds of objectionability and injury to amenity set out in (a). It does not go very far in clarifying what has caused the council to exercise its discretion to issue the order, or even narrow down the possible bases of the council’s actions.

163. I do not find that these reasons make intelligible the true basis for the decision to issue the order, or give the recipient sufficient information to decide whether to accept the order, or to appeal. Therefore, it does not satisfy the requirement to give reasons created by s 121L of the Act. On this ground also, the order is invalid.

Discretion
The Applicants’ Submissions

164. Mr Craig QC submits that the Court, in the exercise of its discretion, should not order the removal of the subject sign. In doing so, it should consider that the wall on which the sign is displayed has been used for the display of an advertisement for a long period of time and that the advertisement is integral to the heritage significance of the building and the area.

165. According to Mr Craig, the Court should take into account the fact that there is a consent sanctioning the presence of a sign on the wall. Even if the Court finds that the current sign does not conform with the consent, it is submitted that a sign which did conform with the consent would not be significantly different from a town planning perspective.

166. When it comes to evaluating heritage impacts, Mr Craig submits that the Court should look at the difference in impacts (if any) between the subject sign and what was consented to, not the difference between the presence and absence of an advertising sign on the subject wall.

167. The 1983 consent does not now place any limitation on the nature of designs which may be displayed on the wall, or the frequency with which they may be changed. Nor, it is said, does the fact that the sign may have to be painted on the wall place any real constraint upon these characteristics. The ability to see the texture of the wall is the only relevant difference between a sign painted directly onto the wall and one displayed on a vinyl membrane.

168. Mr Craig submits that there are therefore no heritage town planning considerations of any weight which justify the making of the order.

The Respondent’s Submissions

169. Mr Robson submits that the subject sign is an inappropriate form of development on the host building which is listed as a Heritage item and adjoins a Heritage streetscape identified in Central Sydney Heritage Local Environmental Plan 2000. It comprises a structure which penetrates the fabric of the building and allows for the frequent changing of the advertisement, leading to a lack of continuity which is undesirable from a heritage point of view.

170. In light of Ms Warr’s evidence as to the adverse heritage impacts of the subject sign, and the objectives and provisions of the Central Sydney Heritage Local Environmental Plan 2000 and Central Sydney Development Control Plan 1996, Mr Robson submits that the court should find that the order is justified on its merits.

Conclusions

171. I accept Ms Warr’s evidence, which was not contested, as to the heritage significance of the subject building in the context of the surrounding streetscape. The only real dispute is as to the appropriateness of the subject sign in that context.

172. I prefer Ms Warr’s evidence on this issue, in light of her heritage qualifications and the fact that her opinions were based on a detailed consideration of the particular site and the differences in the nature of advertisements between the period when Canada House was constructed and the present day.

173. Mr Rannard does not have specialist heritage qualifications. I found his evidence less persuasive in that it was addressed to the character of the area as a whole, as being one where advertisements have historically been present, but did not deal with the relationship of this particular wall to neighbouring buildings, particularly the Westpac Bank Building. He equated early twentieth-century advertisements with modern-day advertisements, whereas Ms Warr’s evidence shows that there has been as great a change in the style of advertisements as in the style of buildings over the last century; and the photographic evidence tends to bear this out.

174. I find that the subject sign detracts from the heritage significance of Canada House in that involves interference with the fabric of the heritage building by the attachment of the aluminium frame structure to the wall and the stretching of a fabric across the wall, which prevents the wall itself from being seen from the street. Of greater significance is the impact which it has on overall views of the surrounding buildings and the streetscape. From the west it dominates views of the intersection next to which it is situated, detracting from an appreciation of the four other heritage buildings located there. It is particularly detrimental to the setting of the Westpac Bank Building, in that it forms a backdrop which obscures the distinctive appearance the cupolas which adorn the corner of the building.

175. In exercising my discretion on the merits of the order, I would take account of the fact that the current planning controls affecting the site place a high priority on preserving the heritage value of identified heritage buildings.

176. Canada House is listed as a Heritage item in Sch 1 of Central Sydney Heritage Local Environmental Plan 2000 and is adjacent to two heritage streetscapes identified in the Heritage Streetscapes map attached to that Plan. Clause 7 of that plan provides that a sign may only be erected on a heritage item with consent. Clause 8 provides that a consent authority must take into consideration “the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or of the heritage streetscape” before granting such consent.

177. The site is also affected by the Central Sydney Development Control Plan 1996 which states:

8.4 Signs on Heritage Items
Buildings, streetscapes, landscapes or other works listed as heritage items or heritage streetscapes in Central Sydney Heritage Local Environmental Plan 2000 have special significance. The design and location of signs on or near such items must be carefully considered to achieve a very high degree of compatibility with the heritage significance of the building or streetscape so as not to detract from that significance.

178. The Development Control Plan 1996 also provides:

8.4.2 All signs on a heritage item 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.
8.4.6 Externally illuminated signs are permitted only where:
(i) the design achieves a very high degree of compatibility with the heritage item or heritage streetscape.

179. The subject sign appears to me to be inimical to these considerations. It does not achieve the high degree of compatibility between signs and their heritage context which the Development Control Plan 1996 aims at. The prohibition at cl 8.4.5 signs between the first floor level and the parapet of a heritage item would almost certainly prevent consent being granted to the subject sign if an application were made to erect it today. This is not decisive of the question of whether the order should be issued, but it is an important consideration.

180. In the applicants’ favour, I would take account of the fact that there is an extant consent permitting the display on the wall of a sign of similar dimensions to the subject sign. I would also take account of the fact that this consent does not contain any effective mechanism for controlling the content of any advertisement presented there, or the frequency with which that advertisement may be changed. That is to say, the council has sanctioned, and is bound to tolerate, the display on this wall of a sign having many of the same negative impacts as the subject sign.

181. I accept Ms Warr’s evidence, however, that the subject sign has a greater impact than would a painted wall sign. In particular, the presence of an aluminium frame on the side of a heritage building is incongruous, and the manner of displaying the sign obscures the brick texture of the wall which might otherwise be visible.

182. If the order were valid, I would exercise my discretion in favour of upholding it. My reasons would be that the sign is undesirable from a heritage point of view. If that sign were being displayed in accordance with a development consent it would still be undesirable. As it is, it is being displayed in violation of a development consent, and displayed in such a way that its negative heritage impact is increased. It is therefore entirely appropriate to issue an order to require the applicants to remove the subject sign.

Conclusions and Orders

183. The applicants’ questions can now be answered as follows:

Question 1. Was it legally open to the Council to give the Order dated 1 August 2000 differing from the terms of the Notice of Proposed Order provided to the Applicants in compliance with s 121H of the EPA Act, when there had been no representations made to the Council by them in response to such Notice?
Answer : The notification and the order refer to different signs. Therefore, the order cannot properly be described as a modification of the order which was previously notified and, therefore, the order is invalid for failure to give notice of the intended order.
Question 2. [Omitted.]
Question 3. [Omitted.]
Question 4. Did the Council give reasons for the Order dated 1 August 2000 as required by s 121l of the EPA Act?
Answer : No.
Question 5. To what documents may recourse be had for the purpose of interpreting the 1983 consent?
Answer: The application, the determination, and the minutes which are referred to in the determination.
Question 6. What is the development that was sanctioned by the 1983 consent?
Answer: A painted wall sign, not the current vinyl membrane sign.
Question 7. Upon the repeal of Ordinance No. 55 made under the Local Government Act, 1919 and the revocation of the Council’s Code of Regulations of Advertisements and Structures Used for the Display of Advertisements, what operative effect, if any, did the only condition attaching to the 1983 consent continue to have?
Answer: The condition does not presently require separate council approval for each change of advertisement on the sign.
Question 8. Is the advertisement displayed on the western wall of the building situated at 822 George Street, Sydney (“the subject building”) development sanctioned by the 1983 consent?
Answer : No (for the reasons stated at 6 above).
Question 9 . Can an order under item 5(a) of the Table to s 121B(1) of the EPA Act be lawfully made on the ground that an advertisement is “objectionable” when the advertisement so displayed is the subject of an existing and operative development consent?
Answer: Not necessary to answer, as the current sign is not sanctioned by a development consent.
Question 10 . Is there an “existing use” within the meaning of the EPA Act for the display of an advertisement on the western wall of the subject building?
Answer: No.
Question 11. Is the advertisement displayed on the western wall of the subject building protected as an “existing use” within the meaning of s 107 of the EPA Act or is it otherwise protected by the provisions of Division 10 of Part 4 of the EPA Act?
Answer: No.
Question 12 . Can an order under item 5(a) of the Table to s121B of the EPA Act be lawfully made on the ground that an advertisement is “objectionable” when the advertisement so displayed is either an “existing use”, within the meaning of the EPA Act, or is otherwise protected by the provisions of Division 10 of Part 4 of that Act?
Answer: Does not arise.
Question 13 . Is the advertisement displayed on the western wall of the subject building “objectionable” within the meaning of item 5(a) of the Table to s 121B of the EPA Act?
Answer : Does not arise.

184. The formal orders of the Court are:

1. Appeal allowed.

2. The order under s 121B of the Environmental Planning and Assessment Act 1979 dated 1 August 2000 is revoked.

3. The exhibits may be returned.

I hereby certify that the preceding 184 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated: 3 December 2001