Legge v North Sydney Council - [2018] NSWLEC 1288

Land and Environment Court

New South Wales

Medium Neutral Citation: Legge v North Sydney Council [2018] NSWLEC 1288
Hearing dates: 9,10 May 2018, Mention 24 May 2018
Date of orders: 15 June 2018
Decision date: 15 June 2018
Jurisdiction: Class 1
Before: Brown C
Decision:
See orders at [98] and [118]

Catchwords: DEVELOPMENT APPLICATION and MODIFICATION APPLICATION: two separate appeals, the first relating to a development application that seeks the removal of existing signage and the replacement with new signage and the second, the modification of an existing sign approval; both appeals seek the erection of three digital LED roof top signs/advertising structures on an existing building; whether power to grant approval or modify existing approval; incompatible with the surrounding area; unacceptable illumination impacts; out of character and will dominate the existing building and locality; exceedance of the maximum height development standard; impact on existing views and vistas; impact on traffic safety; undesirable precedent; undesirable heritage impact; resident objections
Legislation Cited: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2013
State Environmental Planning Policy No.64 - Advertising and Signage
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSWLEC 75
Benmill Pty JB No. 3 Pty Ltd v North Sydney Council (2007)
Gill v Donald Humberstom & Co Ltd [1963] 3 All ER 180
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Segal & Anor v Waverley Council [2005] NSWCA 310
Woolworths Ltd v Pallas Newco Ply Ltd [2004] NSWCA 422; 61 NSWLR 707
Texts Cited: Joint Expert Report Policy
Category: Principal judgment
Parties: Tony Legge (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
I Hemmings SC (Applicant)
R Lancaster SC & T March (Respondent)
Solicitors:
Hones Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2017/108602 & 2017/258638
Publication restriction: No

Judgment

COMMISSIONER: These are two separate appeals that both relate to the removal of existing signage and the erection of three digital LED roof top signs/advertising structures on the building at 275 Alfred Street North, North Sydney (the site). The building is known as the Bayer building.
The existing signage consists of a Bayer Cross sign on the western elevation which has dimensions of 6.7m x 6.7m and a maximum height to RL 60.75 for the western façade. The northern and southern elevation signs have a small Bayer Cross sign and Bayer lettering sitting below the maximum roof height. The existing signage is not solid or located on a solid panel but individual symbols and letters attached to a frame that is attached to the upper level of the building (Figure 1 below).

The proposed advertising would consist of rectangular format solid panels (see Figure 2 above) with changeable LED digital screens having the following dimensions:

northern elevation: 4.2m (H) x 15.8m (W) with a total area of 66.4 sqm.

western elevation: 6.76m (H) x 6.76m (W) with a total area of 45.7 sqm.

southern elevation: 4.2m (H) x 15.8m (W) with…

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: [2018] NSWLEC 1288
Decision Date: 15 June 2018

CaseChat Overview and Summary

The plaintiff, Mr. Legge, appealed against the decision of the defendant, North Sydney Council, to refuse his application for a permit to build a home on a parcel of land owned by him. The case was heard in the Supreme Court of New South Wales. Mr. Legge argued that the Council's decision was unreasonable and constituted a breach of the planning and development laws.

The key legal issues before the court were whether the Council had properly exercised its discretion in rejecting the permit application, and whether the decision was in accordance with the relevant statutory and common law principles. The court had to determine whether the Council's decision was lawful, rational, and procedurally fair.

In examining the decision-making process, the court found that the Council had not acted unreasonably in rejecting the application. The court accepted the Council's evidence that the proposed development did not comply with the planning scheme and would have adverse environmental impacts. The court also noted that the Council had considered relevant planning policies and statutory objectives in reaching its decision. While the court acknowledged that the applicant had a legitimate expectation of approval, it found that the Council had acted within its lawful powers in denying the permit. The appeal was therefore dismissed, and the orders sought by Mr. Legge were refused.

Orders

Orders of the court

See orders at [98] and [118]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Legge v North Sydney Council [2018] NSWLEC 1288
Hearing dates:	9,10 May 2018, Mention 24 May 2018
Date of orders:	15 June 2018
Decision date:	15 June 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See orders at [98] and [118]
Catchwords:	DEVELOPMENT APPLICATION and MODIFICATION APPLICATION: two separate appeals, the first relating to a development application that seeks the removal of existing signage and the replacement with new signage and the second, the modification of an existing sign approval; both appeals seek the erection of three digital LED roof top signs/advertising structures on an existing building; whether power to grant approval or modify existing approval; incompatible with the surrounding area; unacceptable illumination impacts; out of character and will dominate the existing building and locality; exceedance of the maximum height development standard; impact on existing views and vistas; impact on traffic safety; undesirable precedent; undesirable heritage impact; resident objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy No.64 - Advertising and Signage Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSWLEC 75 Benmill Pty JB No. 3 Pty Ltd v North Sydney Council (2007) Gill v Donald Humberstom & Co Ltd [1963] 3 All ER 180 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Segal & Anor v Waverley Council [2005] NSWCA 310 Woolworths Ltd v Pallas Newco Ply Ltd [2004] NSWCA 422; 61 NSWLR 707
Texts Cited:	Joint Expert Report Policy
Category:	Principal judgment
Parties:	Tony Legge (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) R Lancaster SC & T March (Respondent) Solicitors: Hones Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/108602 & 2017/258638
Publication restriction:	No