Nationwide Realty Parramatta Pty Ltd v Parramatta City Council

[1989] NSWLEC 182

Land and Environment Court

of New South Wales

CITATION:	Nationwide Realty Parramatta Pty Ltd v Parramatta City Council [1989] NSWLEC 182
PARTIES:	APPLICANT Nationwide Realty Parramatta Pty Ltd RESPONDENT Parramatta City Council
FILE NUMBER(S):	10657 of 1988
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:	Sydney City Council v. Claude Neon Ltd. (N.S.W. Court of Appeal 14 April 1989 Unreported
DATES OF HEARING:
DATE OF JUDGMENT:	05/01/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: By application filed in Court on 5 December 1988 Nationwide Realty Parramatta Pty. Ltd. appealed under s.97 of the Environmental Planning and Assessment Act against the decision of the Parramatta City Council on 5 April 1988 to refuse consent in respect of a proposed illuminated advertising structure on commercial premises at 426-428 Church Street, Parramatta.

The applicant had applied for approval with respect to 5 advertising signs and the Council consented to 4 but refused an application with respect to a sign to be located on the splayed concrete panel between ground and first floor on the north-western corner of the building.

Consent to the building was given by the Council in December 1984. The site is located on the south-eastern corner of Church and Grose Streets, Parramatta. The building has considerable architectural merit and is one of the better designed commercial buildings in the Parramatta CBD. It contrasts favourably with much of the nearby commercial development. The owner of the subject building has given exclusive naming rights of the building to the applicant.

The building has two principal entrances from short stairways along the Church Street frontage. Council approved two naming right signs to be erected on the concrete panel between ground and first floors, one above each of the stairway entry points. These flush wall signs, which have not so far been erected, will read "Nationwide House" in gold lettering on a black background. Each will measure 4m long by 1m high. The applicant intends to erect these signs.

Council also consented to the erection of 2 illuminated advertising signs fixed onto the vertical window frames at the ground floor level. Along the Grose Street frontage the sign is 10m long by 620mm high and on the Church Street side it is 8m long by 620mm high. Each of these signs reads "Nationwide Realty 651 1666 Parramatta". "Nationwide Realty" is in gold lettering while the telephone number and "Parramatta" are in white lettering. The signs have a red background and include a gold logo of the applicant on the left side.

The remaining sign is the subject matter of this appeal. It is located on the splay concrete panel between ground and first floor on the north-western corner of the building. The sign measures 4m long by 1m high by 15 centimetres thick. It reads "Nationwide Realty 651 1666 Parramatta". "Nationwide Realty" is in gold while the telephone number and "Parramatta" are in white. The sign also has a red background with the gold company logo situated to the left side of the sign. Notwithstanding Council's refusal the sign has been erected by the applicant. This at least gives the Court a better chance of appreciating its appearance.

At the time of refusal, and also in the Court, the Council expressed concern that the sign encroached over Council's footpath. Council had not given its consent under s.77 of the Environmental Planning and Assessment Act to the making of the application in so far as the sign projected over its public road. However, it seems that this issue has now been set at rest by the recent decision of the Court of Appeal in Sydney City Council v. Claude Neon Ltd. (N.S.W. Court of Appeal 14 April 1989 Unreported). Hope J.A. (with whom the other members of the bench agreed) held that s.39(2) of the Land and Environment Court Act places the Court, on appeal, in the same position as the Council. Further, the Council has the power to give its consent as owner of a public street to the making of a development application over the street. It follows that the Court on appeal has the same power as the Council when dealing with an application before it. The Court is empowered to give consent, which will operate as a consent by the

Council in its capacity as owner of the road, to the lodging of the development application.

In this case the encroachment is slight and no merit considerations arise from it. It is therefore appropriate and in accordance with the decision in Sydney City Council v. Claude Neon Ltd. that the Court give the "owners' consent" to the lodging of the application for development approval of the subject sign in so far as it projects over the footpath.

The remaining issues are merit ones. Evidence was given by Mr. Gerard Turrisi, a town planner employed by the Council. No expert evidence was called on behalf of the applicant. Essentially, the Council planner says that the character and external appearance of the subject sign does not harmonise with the character of the building.

In his Statement of Evidence the planner says:-

"It is of (sic) my opinion that the proposed advertising structure is not in character with the existing commercial building. The buildings architectural design is of a nature that clearly distinguishes the two (2) levels by the use of a concrete panel/band between the ground and first floors. Not only does the use of this predominate horizontal element reduce the scale of the building, it also becomes one of the major or strong architectural features of the buildings facade.

The proposed advertising structure, located on the splay corner panel between the ground and first floors of the north-western corner of the building successfully fulfills its function as an advertising structure. That is, outdoor advertising by its very nature is designed to attract attention. Clearly, with the approval by Council for the erection of the two (2) illuminated advertising structures which are fixed onto the vertical window frames, (one measuring 10 metres long x 620mm high and the other 8 metres long x 620mm high).

It appears that site identification is satisfactorily fulfilled.

It is thus of (sic) my opinion, that approval for the erection of this advertising structure would detract from the architectural design of the building. The predominate horizontal elements will be lost as the subject advertising structure will become the major focal point or predominate feature of the building."

In his oral evidence Mr. Turrisi drew attention to a further design aspect of the external appearance of the building. The concrete panel or band between the ground and first floors continues all around the facade of the building at the street frontages. On this panel is an obvious and decorative horizontal groove. This 'groove' is clearly a design feature to enhance the architectural statement of the building and its predominate horizontal elements. This feature is quite noticeable on many of the photographs of the building tendered in evidence. It is the opinion of the Council planner that this architectural feature will be interfered with and diminished in its contribution to the design elements of the building if the subject sign is placed over the "grooving" on the prominent splay corner.

The applicant submits that since the Council has already approved the installation of the two naming rights signs on the Church Street frontage covering the grooving, it can hardly argue that the subject sign has any real effect on the design. Nevertheless the subject sign is in the most prominent location on the facade and detracts from the "grooving", and what that feature is trying to achieve, to a greater extent than the naming rights signs.

The Court has been fortunate to have received a considerable number of photographs of the building from the parties, photographs both before and after the erection of the subject sign. This enables comparisons to be made. Additionally, large numbers of photographs of the advertising signs on surrounding commercial developments have been tendered. The nature of the evidence placed before the Court means that an inspection is unnecessary and neither side requests one.

The basic submission of the Council is that the character and external appearance of the sign does not harmonise with the character of the subject building. There is apparently no similarly designed building in the Parramatta CBD and it presents an attractive architectural design. It is undoubtedly, in terms of its facade, one of the best designed commercial buildings in the area.

The subject sign is quite large (4m long by 1m high) and takes up the whole of the splay corner. In my opinion it is unnecessarily dominating and detracts from the preponderant horizontal emphasis of the external appearance of the building. I accept the planning evidence of Mr. Turrisi. The sign, in my view, derogates from the external appearance of the building. Moreover, it is unnecessary. It seeks to inform the public of the name and telephone number of the realtor. However, these are more than amply displayed by the large and prominent 10m and 8m long signs on the Church and Grose Street frontages. Additionally, the business name 'Nationwide' will be further prominently displayed by two obvious 4m x 1m signs above the Church Street entrances.

In my opinion the subject sign "shouts" at the street because of its very prominent position on the splay corner of the building. Its size, colour and prominence, in addition to the other 4 signs, tends to diminish the architectural harmony and merit of the building and unnecessarily detracts from its design features.

In my opinion the Council was right in refusing the application and development consent should be refused. The appeal is therefore dismissed. There will be no order as to costs and the exhibits may be returned.