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Existing Use Rights: -consent granted under repealed environmental planning instrument - consent remains in force - not capable of abandonment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

Andrew Lederer, Gizela Fiala and

Hexiva Pty Limited (ACN 001 485 356)

Applicants

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.

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2001] NSWLEC 272
Decision Date: 12/03/2001

CaseChat Overview and Summary

The case of Lederer v Sydney City Council, heard in the Land and Environment Court of New South Wales, involved an appeal against an order issued by the Sydney City Council under section 121B of the Environmental Planning and Assessment Act 1979. The order required the removal of an advertising sign on a building at 822 George Street, Sydney. The applicants, Andrew Lederer, Gizela Fiala, and Hexiva Pty Ltd, argued that the sign was lawfully displayed under a consent granted in 1983. The council contended that the sign was objectionable and lacked current development consent.

The court found that the council was not entitled to issue the order as the sign was protected by an existing development consent granted in 1983. The consent authorised a "painted wall sign" and not the current vinyl membrane sign. The court also determined that the order was procedurally invalid due to a fundamental change in the subject matter of the order without proper notification and opportunity for the applicants to make representations. Additionally, the order failed to provide adequate reasons for its issuance.

In conclusion, the court allowed the appeal, revoked the order, and returned the exhibits. The court's decision emphasised the importance of clear and accurate communication in the issuance of orders, as well as the need for adequate reasons to be provided in support of such orders.

Orders