Meriton Apartments Pty Limited v City of Sydney

[2010] NSWLEC 1190

Land and Environment Court

of New South Wales

CITATION:	Meriton Apartments Pty Limited v City of Sydney [2010] NSWLEC 1190
PARTIES:	APPLICANT Meriton Apartments Pty Limited RESPONDENT City of Sydney
FILE NUMBER(S):	10775 of 2009
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT CONSENT - DEVELOPMENT CONTROL PLAN - DEVELOPMENT MODIFICATION :-
LEGISLATION CITED:	City of Sydney Signage and Advertising Structures Development Control Plan 2005 State Environmental Planning Policy 64
DATES OF HEARING:	28, 29 and 30 April 2010
EX TEMPORE JUDGMENT DATE:	30 April 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr M Seymour, barrister RESPONDENT Ms F Berglund, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

30 April 2010

09/10775 Meriton Apartments Pty Limited v City of Sydney

JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: At the commencement of these proceedings, we undertook an interesting (if mildly neck craning) circumnavigation of Sydney's Central Business District, examining a range of signs at the upper levels of a number, quite a large number, of commercial buildings within the Central Business District. The procedural elements of this hearing have followed a similar leisurely perambulation to reach a conclusion where there are only two matters that remain for my determination.

2 There is, however, a modestly interesting metaphysical aspect to the proceedings – in that a number of the signs that we examined (including the signs that are the subject of the proceedings and the other signs owned by the applicant) are signs that, for the purposes of these proceedings, I am obliged to treat as if they did and do not exist on the city skyline. This arises as none of those signs, whether those subject to the present application or the others owned by the company, currently have development consent for their display.

3 I am, however, satisfied because of the nature of the ongoing operation of a number of the conditions of the development consent sought to be modified to regularise the signs that had originally been approved by it, remain in operation, it is legally possible for me to modify the development consent to regularise the present and some limited future operational existence of the signs.

4 The matters that remain are:

• whether proper consideration of the objectives of the City of Sydney Signage and Advertising Structures Development Control Plan 2005, in particular, the provisions of cl 3.10.1 of that DCP relating to the number of signs that are to be permitted as building name signs at the upper levels of a building, act to preclude approval of the present signs; and
• it being the agreed position that at least two of the signs are permissible, if I am satisfied on the merits that two or three of the signs that are subject of this application, should be permitted to remain on the merits, the period of time for which they should be permitted to so remain.

5 I do not consider that it requires a great deal of discussion to deal with either of those matters.

6 Although each side had prepared and provided, during the course of the hearing, expert evidence from a planner, much of that expert evidence related to issues that evaporated as part of the analysis of precisely what was the legal framework within which I was to proceed. The resultant oral evidence that was necessary from the planners was limited, and in this respect, I note that the evidence given by the planner on behalf of the respondent Ms Symons was given frankly and candidly and has provided me with significant assistance in dealing with the matter, although perhaps not in the fashion that her employer might have anticipated.

7 Mr Seymour, counsel for the applicant, took Ms Symons through various objectives in cl 2.2 of the DCP that are relevant to the signs in question. She candidly acknowledged that none of the objectives of the DCP were breached and that the only triggered element of the DCP is the numerical requirement expressed as a limitation contained in cl 3.10.1(i) of the DCP.

8 I have had the benefit of a variety of other assessments given by the council to applications for signs in the city. One is particularly relevant, it being an assessment given on a development application for signs on the Citibank building at 2 Park Street Sydney in 2007."

9 The planner making the assessment in that case, a planner more senior to Ms Symons in the council's assessment hierarchy, considered the question of whether those signs should be permitted even though there were four of them rather than the two contended by the council as the interpreted numerical limit arising from cl 3.10.1(i). He said when dealing with this matter, in the second paragraph of his assessment:

"It is acknowledged that whilst the signs may not strictly conform to numerical provisions, they do generally meet the objectives of the Signage DCP 2005.”

10 Ms Symons' evidence leads to precisely the same conclusion.

11 The council having been prepared in the past to permit signage that is not strictly numerically compliant, provided it did not transgress any of the objectives of the Signage DCP, seems to me to be an appropriate position for me to adopt in these proceedings.

12 I am therefore satisfied on merits that the three signs that are the subject of this application should be permitted. That is not to say that the permitting of these signs may not create some numerical or other obstacle required to be addressed by the applicant if it wishes to make some further application concerning any of the other of its signs which to not metaphysically exist but are in physical space at the present time.

13 I turn to determine the only other matter and that is the question of for how long this modification to the development consent should operate. The council contends for a period of three years, these signs being illuminated signs, as such a period of consent is specified in cl 2.5.11 of the DCP. The applicant contends for a ten year time period, that being the maximum permissible for such signs pursuant to cl 21(3)(a) of State Environmental Planning Policy 64, these signs being business identification signs for the purposes of that State Environmental Planning Policy.

14 There are some council consents in evidence (such as those for the AMP signs at Circular Quay, at least one of the three of which metaphysically exists but did not physically exist at the time of our inspection), that have consents for longer periods of time. I am satisfied that, despite Mr Seymour's valiant attempt to suggest that residential impacts to be assessed against those signs would be at Kirribilli, a distance of perhaps a kilometre or so away, this consent does not provide comfort to him in these proceedings. Ms Symons gave evidence that, to the best of her knowledge and belief, the council had a generally consistent policy of applying three year consents to signs such as this.

15 I am satisfied that, in face of that evidence and the fact that there is no evidence that there would be a distinct disadvantage to the applicant in these proceedings if I were to adhere to the Development Control Plan, coupled with the fact that the Development Control Plan appears to envisage reviews on the merits of the then circumstances, a three yearly review for such signs is an appropriate basis upon which I should adhere to the terms of the Development Control Plan.

16 Finally, I note that as the applicant has indicated that as it is already complying with the terms of 2.5.10 of the DCP about offsetting purchases of renewable energy product for these signs, it would be appropriate (as agreed by Mr Seymour) that a condition reflecting that should also be incorporated in the modification to the consent.

17 The consequence of the foregoing is that the appeal will be upheld; the existing development consent will be modified in the fashion proposed by the applicant in exhibit D, so that the period will be three years and that the end of the first paragraph of the proposed conditions will refer to the signage or any part of the signage rather the sign, and that there is to be an additional condition to be inserted as 6A in the Development Consent that reflects the matters contained in cl 2.5.10; and the exhibits other than Exhibits 2, 5 and D, will be returned.

18 It seems to me that the only matter that remains is for the terms of a consolidated modified consent being transferred electronically to the Court so that I can make orders reflecting that. So that the Court retains control of the process, I propose to give the parties a week to do that. I therefore direct that:

1. the respondent is to file, electronically and in hard copy, settled, modified consolidated terms of the development consent by the close of business on Friday 7 May;
2. the matter is set down for callover before the Registrar on Tuesday 11 May; and
3. if (1) is complied with, I will make orders in chambers and vacate the mention before the Registrar on Tuesday 11 May.

Tim Moore

Senior Commissioner