OOH! Media Assets Pty Ltd v Ballina Shire Council

[2024] NSWLEC 1363

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

OOH! Media Assets Pty Ltd v Ballina Shire Council [2024] NSWLEC 1363

Hearing dates:

3, 4 August 2023, 11, 12 March 2024, written submissions 20, 28 March 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development application DA/2022/33, seeking development consent for new digital signage incorporating the construction of an advertising structure to contain a digital advertisement, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits are returned with the exception of Exhibit A, K, 1 and 3

Catchwords:

DEVELOPMENT APPLICATION – proposed signage structure and digital advertisement display – whether the signage is compatible with the desired amenity and visual catchment of the area – whether the proposed signage is a safety risk – precedent – appeal upheld

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.16, 4.18

Land and Environmental Court Act 1979, ss 34

Coastal Management Act 2016, ss 5, 6, 7, 8, 9, 10, 14

Ballina Local Environmental Plan 2012, cll 7.1, 7.7

Environmental Planning and Regulation 2021, ss 23, 76

Ku ring gai Local Environmental Plan 2015, cl 6.3

Pittwater Local Environmental Plan 2014

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Div 2, cll 1.15, 1.16, 2, 2.24,12

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, Sch 1, cl 4,

State Environmental Planning Policy (Industry and Employment) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.2, 2.4, 2.10, 2.11, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 119

Cases Cited:

4Nature Incorporated v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] ST Qd 135

Australian Nursing Home Foundation Limited v Ku ring gai Council [2019] NSWLEC 131

Beckwith v R (1976) 135 CLR 569; [1976] HCA 55

Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; [1947] HCA 17

Collector of Customs v Agfa-Gevaert Ltd (1996) (1996) 186 CLR 389; [1996] HCA 36

Commissioner for ACT Revenue v Dataflex Pty Ltd (2011) 5 ACTLR 271; [2011] ACTCA 14

Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26

Davies v Western Australia (1904) 2 CLR 29; [1904] HCA 46

Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322

Ireland v Johnson, CEO Department of Corrective Services (2009) 189 IR 135; [2009] WASCA 162

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26

Maunsell v Olins [1975] AC 373

MB Investments Pty Ltd v Hawkesbury City Council [2015] NSWLEC 1361

Mills v Meeking (1990) 169 CLR 214; [1990] HCA 6

Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54; (1993) 43 FCR 565

Parry v Osborn [1955] VLR 152

Pepperwood Ridge Pty Ltd v Newcastle Council [2009] NSWLEC 1046

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Rose Bay Marina Pty Limited v Woollahra Municipal Council and anor [2013] NSWLEC 1046

Rosewood Australia Pty Ltd v Ku ring gai Council [2019] NSWLEC 84

S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd (No 2) [2019] NSWLEC 199

Truman v Truman [2008] FamCAFC 4; (2008) 216 FLR 365

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Tomasic v Port Stephens Council [2021] NSWLEC 56

Tovir Investments Pty Limited v Waverley Council [2014] NSWCA 379

Valuer-General v Fivex Pty Ltd [2015] NSWCA 53

Warringah Shire Council v Punnett & Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480

Whittaker v Northern Beaches Council (No 3) (2018) 235 LGERA 5; [2018] NSWLEC 143

Texts Cited:

Australian Standards and Industry Safety Community Guidelines

National Light Pollution Guidelines for Wildlife 2023

Category:

Principal judgment

Parties:

OOH Media Assets Pty Ltd (Applicant)
Ballina Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
J Reid (Respondent)

Solicitors:
McKee Legal Solutions (Applicant)
Parker & Kissane Solicitors (Respondent)

File Number(s):

2022/286729

Publication restriction:

No

Judgment

1. COMMISSONER: This judgment concerns a proposal for a new signage structure to contain digital advertising. The development application (DA2022/33) was originally lodged with Ballina Shire Council. Following the expiration of the deemed refusal period, the Applicant appeals to the Court seeking approval of the development application. The development is proposed at 44 Bangalow Road, Ballina (Lot 2 DP 1154296).

2. The site is located within land upon which the Ballina Shopping Centre is located. Owner’s consent to the development application has been given. The site is located on Bangalow Road which is a Classified Road pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI).

3. The matter was listed for conciliation on 28 February 2023 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated, and the matter was subsequently listed for hearing.

4. On the 28 July 2023, the Court granted leave for the amendment of the development application.

5. The hearing commenced in August 2023, but was adjourned to provide an opportunity for the parties to address the applicability of s 3.8 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry) by 7 August 2023. At the recommencement of the hearing the Respondent argues that the effect of s 3.8 of SEPP Industry is to prohibit the development. The question of the permissibility of the development remains the first issue to determine in the proceedings.

Issues

6. Notwithstanding the amendments to the development application the Respondent maintains the development warrants refusal on the following grounds:

1. Development for the purposes of an advertising structure is prohibited on the land.

2. The proposed signage is incompatible with the desired amenity and visual character of the area.

3. That the proposal will create an undesirable precedent for signage in Bangalow Road which is not associated with business, commercial or industrial businesses in that location.

7. Through the process of joint expert conference and reporting, a number of contentions were resolved by amendment and agreed conditions.

Experts

8. The following experts gave evidence in the proceedings:

• Town Planning: Mr Stuart Gordon (Respondent), Mr Stephen Barr (Applicant).

• Visual assessment: Dr Phillip Pollard (Respondent), Mr Stuart Gordon (Applicant).

9. The experts were also called for cross-examination and oral evidence.

Site and Locality

10. The proposed signage structure is located within the land of the Ballina Central Shopping Centre, in the outdoor carpark fronting Bangalow Road. The approximate location of the proposed signage within the site is nominated below:

Extract of site plan with signage location nominated.

11. The site is located in the Zone E2 Commercial Centre zone pursuant to Ballina Local Environmental Plan 2012 (LEP 2012). An extract of the zoning map is included below:

12. Bangalow Street is characterised by a four-lane road and associated infrastructure. The northern side of the road, in the vicinity of the sign, is zoned E4 General Industry and the southern side E2 Commercial Centre. There is no fencing or structures of any significance fronting the site boundary. Land to the south of Bangalow Road accommodates car parking to support the Ballina Central Shopping Centre. The northern side, immediately adjoining the site, has a landscaped buffer which is approximately 50 metres deep which then transitions to the neighbouring industrial estate.

Planning Framework

13. The development application was lodged with the consent of the owner of the land per s 23 of the Environmental Planning and Assessment Regulation 2021.

14. The development application was placed on public exhibition by the Respondent from 26 April to 13 May 2022. Property owners and occupants in proximity to the site were also advised by letter. No submissions were received.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not grant consent to a development unless it has considered whether the Site is contaminated, and if the land is contaminated, is satisfied that the site is suitable (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. The Statement of Environmental Effects (SEE) accompanying the development application considers the provisions of s 4.6 of SEPP RH. On the basis of those considerations and the nature of the proposed development (limited excavation and disturbance) I accept the agreement of the parties that the clause is satisfied.

16. Pursuant to s 2.4 of SEPP RH, the site is land identified on the Coastal Environment Area Map. Further, the site is land identified on the Coastal Use Area Map. Exhibit 4 confirms that the site is outside the area mapped as ‘proximity area for coastal wetlands and littoral rainforest’. The Respondent submits that both of these areas are within the zone or descriptions of “environmentally sensitive area”, “natural or other conservation area” and “scenic protection” for the purposes of s 3.8(1) of SEPP Industry. The fact of the site being located within these designations is relevant to the Respondent’s contention that the development is prohibited. This contention is discussed later in the judgment commencing at [33].

17. Pursuant to s 2.10 ‘Development on land within the coastal environment area’ development consent must not be granted to development on land so mapped unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following matters:

(a)  the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b)  coastal environmental values and natural coastal processes,

(c)  the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d)  marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e)  existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f)  Aboriginal cultural heritage, practices and places,

(g)  the use of the surf zone.

18. The scope of the proposed development and its location are such that any adverse impact to the above matters arising directly from the development are not likely. I reach this conclusion on the following basis. The sign is proposed is to be located in an existing urban environment and is distant from coastal, marine, foreshore environments and the like. The physical works proposed in the development are minor. Having considered the above matters I find I can be satisfied that the development is designed, sited and will be managed to avoid an adverse impact referred to in the preceding matters, s 2.10(2) of SEPP RH is satisfied.

19. Pursuant to s 2.11 of the SEPP RH ‘Development on land within the coastal use area’, development consent must not be granted to development on land so mapped unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following matters:

(i)  existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)  overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)  the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)  Aboriginal cultural heritage, practices and places,

(v)  cultural and built environment heritage, and

20. Consistent with my findings at [18], and findings later in the judgment in relation to the impact of the proposed development on the visual amenity, I find that any adverse impact to the above matters arising directly from the development are not likely. I am satisfied that the development is not likely to cause an adverse impact on the visual amenity and scenic qualities of the coast that is sufficient to warrant the refusal of the development application. Having considered the above matters I find I can be satisfied that the development is designed, sited and will be managed to avoid an adverse impact referred to in the preceding matters, s 2.11(1)(b) of SEPP RH is satisfied. Specifically, I am satisfied that the siting of the sign in a commercial zone, which is nominated in the strategic planning for the local government area as a key retail centre, adjacent a road reserve assists in demonstrating that it has been designed to avoid adverse impacts. Further, the height of the sign and its siting below the predominate skyline in my view assists in mitigating any adverse visual impact.

State Environmental Planning Policy (Industry and Employment) 2021

21. Chapter 3 ‘Advertising and Signage’ of SEPP Industry applies to the development. Pursuant to s 3.3 of SEPP Industry, Ch 3 applies to the whole of the state. Further, pursuant to s 3.4 it applies to all signage that:

(a)  can be displayed with or without development consent under another environmental planning instrument that applies to the signage, and

(b)  is visible from any public place or public reserve,

except as provided by this Chapter.

Note—

Public place and public reserve are defined in section 4(1) of the Act to have the same meanings as in the Local Government Act 1993.

(2)  This Chapter does not apply to signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it, or that is exempt development under this Chapter.

22. Pursuant to s 3.5 of SEPP Industry, in the event of inconsistency, the provisions of SEPP Industry prevail to the extent of the inconsistency:

3.5   Relationship with other environmental planning instruments

In the event of an inconsistency between this Chapter and another environmental planning instrument, whether made before or after this Chapter, this Chapter prevails to the extent of the inconsistency.

Note—

This Chapter will have the effect of modifying, and having paramountcy over, the provisions of some other environmental planing instruments that permit the display of signage with or without development consent. This is particularly so in the case of large advertisements, being advertisements of the kind referred to in Part 3.3. This Chapter (other than section 3.14) will not override a prohibition on the display of signage that is contained in another environmental planning instrument. Because of some provisions, such as sections 3.8 and 3.19, it may add prohibitions on advertising if the advertising is proposed to be displayed in certain circumstances, such as on environmentally sensitive or environmentally significant land or in the form of a roof or sky advertisement.

23. Section 3.6 of SEPP Industry contains a precondition to consent which requires the consent authority to be satisfied that:

(a)  that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and

(b)  that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5.

24. The Court’s consideration of the two matters at s 3.6 of SEPP Industry commences at [131] and concludes that the precondition at s 3.6 of SEPP Industry is met by the proposed signage.

25. The Respondent submits that by virtue of the development being located on land within the ‘coastal environment area’ and/or ‘coastal use area’ under SEPP RH the land is within the zone or descriptions of “environmentally sensitive area”, “natural or other conservation area” and “scenic protection” for the purposes of s 3.8(1) of SEPP Industry. On the Respondent’s case this would render the proposed development prohibited.

26. Section 3.8 of SEPP Industry is the focus of the first contention in the proceedings. It states:

3.8   Prohibited advertisements

(1)  Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that, under an environmental planning instrument, is within any of the following zones or descriptions—

environmentally sensitive area

heritage area (excluding railway stations)

natural or other conservation area

open space

waterway

residential (but not including a mixed residential and business zone, or similar zones)

scenic protection area

national park

nature reserve

(2)  This section does not apply to the following—

(a)  the Mount Panorama Precinct,

(b)  the display of an advertisement at a public sporting facility situated on land zoned public recreation under an environmental planning instrument, being an advertisement that provides information about the sponsors of the teams or organisations using the sporting facility or about the products of those sponsors.

27. The Court’s consideration of this provision commences at par [55] and concludes that s 3.8 of SEPP Industry does not operate to prohibit the proposed development.

28. Section 3.12 of SEPP Industry provides that any consent granted is subject to a duration of 15 years. That provision states:

3.12   Duration of consents

(1)  A consent granted under this Part ceases to be in force—

(a)  on the expiration of 15 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or

(b)  if a lesser period is specified by the consent authority, on the expiration of the lesser period.

(2)  The consent authority may specify a period of less than 15 years only if—

(a)  before the commencement of this Part, the consent authority had adopted a policy of granting consents in relation to applications to display advertisements for a lesser period and the duration of the consent specified by the consent authority is consistent with that policy, or

(b)  the area in which the advertisement is to be displayed is undergoing change in accordance with an environmental planning instrument that aims to change the nature and character of development and, in the opinion of the consent authority, the proposed advertisement would be inconsistent with that change, or

(c)  the specification of a lesser period is required by another provision of this Chapter.

29. Consistent with s 3.12 of SEPP Industry the annexed conditions of consent include a condition which limits the duration of the consent to 15 years.

30. Finally, SEPP Industry at s 3.21(1) provides specific controls for freestanding signs. That provision states:

The consent authority may grant consent to the display of a freestanding advertisement only if the advertising structure on which the advertisement is displayed does not protrude above the dominant skyline, including any buildings, structures or tree canopies, when viewed from ground level within a visual catchment of 1 kilometre.

31. The operation of this provision was the subject of expert evidence and forms part of the second contention of the Respondent. The Court’s consideration of this provision commences at [146].

State Environmental Planning Policy (Transport and Infrastructure) 2021.

Supply to the proposed sign and construction in proximity to electrical infrastructure.

32. The development application was referred to Essential Energy as the electrical supply authority pursuant to s 2.48(1)(b)(iii) of SEPP TI as it is proposed development within 5m of an exposed overhead electricity power line. Section 2.48(2) of SEPP TI states:

(2) Before determining a development application (or an application for modification of a consent) for development to which this section applies, the consent authority must –

(a) give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

(b) take into consideration any response to the notice that is received within 21 days after the notice is given.

33. The notification and response for this development application satisfy the requirements of s 2.48 of SEPP TI. A response was received from Essential Energy on 17 May 2022 which states in part:

“Strictly based on the documents submitted, Essential Energy has the following comments to make as to the potential safety risks arising from the proposed development:

- There are no distances shown on the plans from the development to the power line. A clearance distance of 6 meters is required (measured horizontally).

…”

(Exhibit E)

34. However, as the development application proposes a clearance distance of less than 6m. This matter was the subject of submissions as to the appropriate conditions of consent. Mr Barr and Mr Gordon disagree as to whether the means of providing electrical supply to the proposed sign is acceptable. The difference of opinion centres on the acceptability of the proposed variation from the safety clearance zone from the sign to the existing overhead electricity infrastructure.

35. Mr Barr’s evidence is that whilst the proposed development will have a safety clearance distance of less than 6m (measured horizontally), it will have a proposed safety clearance that is acceptable. He explains that when the correct voltage of the existing infrastructure is applied, consistent with the document “Developments near Essential Energy’s Infrastructure” (EE Guide), the proposed clearance distance is greater than the nominated distance and is therefore acceptable. Mr Barr also relies on the advice provided by a Level 3 Accredited Service Provider from ‘Consolidated Power Projects’ which firstly clarifies that the EE Guide summarise the requirements under the relevant Australian Standards and Industry Safety Community guidelines and secondary concludes in part:

“The distance from the stationary conductors to the proposed sign is 4.6m which exceeds the 3.0m distance for the construction work area for the 11,000V and 415V electrical infrastructure.”

36. On this basis Mr Barr argues the proposed deferred commencement condition which follows should not be imposed by the Court on any consent:

“Deferred Commencement Condition(s)

Under section 4.18(1) of the EP&A Act, notice is given that the above development application has been determined by the granting of deferred commencement consent using the power in section 4.16(3) of the EP&A Act, subject to the conditions set out in this notice.

Relevant matters

This consent does not operate and may not be acted on until the consent authority is satisfied of the following matter:

1.

Essential Energy

A revised elevation plan is to be submitted to and approved by Essential Energy which shows the required clearance distance from the edge of the proposed structure to the overhead powerline (measured horizontally) demonstrating compliance with ISSC-20 and AS/NZ 7000:2010. Any conditions imposed or recommended by Essential Energy are to be attached to the consent (within Schedule 1) and complied with over the course of construction and operation of the development.

Evidence of the above relevant matter must be produced to the consent authority, within 3 months of the date of determination, [date to be inserted], otherwise the consent will lapse.

Under section 76(4) of the EP&A Regulation, the consent authority will notify you in writing if the matter above has been satisfied and the date from which this consent operates.

The conditions of development consent below will apply from the date that this consent operates.”

(Exhibit F)

37. In lieu of the above condition, sought to be imposed by the Respondent, the Applicant in their oral closing submissions proposes the following condition:

“10A. Essential Energy: Prior to the appointment of the Certifying Authority

A revised elevation plan is to be submitted to and approved by Essential Energy which shows the required clearance distance from the edge of the proposed structure to the overhead powerline (measured horizontally) demonstrating compliance with ISSC 20 and AS/NZS 7000 prior to the appointment of a principal certifier for the development.”

38. In the alternative Stuart Gordon accepts that the letter from Essential Energy demonstrates that energy can be made available to service the proposed sign, meeting the requirements of cl 7.7 of LEP 2012. However, he expresses concern that the development application provides insufficient information to determine the scope and impacts of the development. He states:

“It may be that there is minimal work required to connect electricity to the sign however there is not detail in the plans or within the additional information submitted with the proposal, nor an explanation from the applicant as to the extent of works and structures required to connect the energy to the proposed sign and therefore in my opinion assessment of any impacts associated with such work and provision of any structures (such as removal or pruning of trees or vegetation, or impacts upon the adjacent car park) cannot be undertaken and the second component of Contention 2 remains unresolved.”

(Exhibit C)

39. In her closing submissions Ms Reid accepts that the applicant has met the requirement for adequate arrangements under cl 7.7 of LEP 2012, however maintains that there is a lack of certainty because the development application has not demonstrated that it will have a clearance of a distance of 6 metres measured horizontally from the existing power lines which is required to ensure public safety and protection of the power supply consistent with the requirements of Essential Energy. She submits that the lack of feedback from Essential Energy on the advice supporting a reduced setback from Consolidated Power Projects means that it is unlikely the Court can be satisfied of the requirements of s 2.48 of SEPP TI. Finally, she submits that this is a matter that should be determined prior to the commencement of the consent as the final advice from Essential Energy may require imposition of further operational conditions.

40. Noting the agreement of the experts and Ms Reid that the applicant has met the requirement for adequate arrangements under cl 7.7 of LEP 2012, in his closing submissions Dr Smith draws the Courts attention to the requirements of s 2.48(2) of SEPP TI. He notes that the requirement at subs (2)(a) was met by the process of notice of development application and the reply from Essential Energy. He emphasises that the requirement at subs (2)(b) is for the consent authority to take into consideration the response from Essential Energy. Further, he submits that Essential Energy do not have a concurrence or approval role in the development application.

41. Dr Smith argues that the Court, in taking into consideration the response from Essential Energy and the expert evidence, has sufficient evidence to be satisfied that the requirements of s 2.48 of SEPP TI are met and that there is sufficient certainty for the consent authority to impose an operational condition of any consent. His reasoning can be summarised as:

• the correspondence from Essential Energy notes that any activities sought to be undertaken in proximity to the electrical infrastructure must comply with ISSC20 ‘Guideline for the Management of Activities within Electrical Easements and Close to Infrastructure’. In response The Applicant engaged an expert.

• That the 6m distance nominated by Essential Energy in their correspondence was based on a desktop assessment and is a figure that does not arise from AS/NZS 7000:2016 or ISSC20.

• The expert engaged was a Level 3 certified accredited service provider. Their assessment details compliance with the AS/NZS 7000:2016 and ISSC 20 and concludes:

• - The conductors located in the powerlines adjacent infrastructure comprise an 11kV (bare wire) and Low Voltage (bare wire). Applying the dimensions in Table 3.2 of AS/NZS 7000:2016 the safety distances required are 1.5m and 2.1m respectively.

• - The technical drawing prepared illustrates the proposed sign is located outside the blowout distance of 0.98m, and the required safety distances of 1.5m and 2.1m required by AS/NZS 7000:2016.

• - That the distance from the stationary conductors to the proposed sign is 4.6m which exceeds the 3.0m distance required for construction work and the safety distances for the applicable voltages of the adjacent powerline.

• - That the mapped ‘blow out distances’ of the electrical infrastructure in proximity of the proposed sign demonstrate that, even in high wind conditions, they do not intersect with the sign.

42. Dr Smith concludes that on the basis of this expert evidence the Court can be satisfied that the provision of electrical connection to the sign, and its construction in proximity to the infrastructure, in compliant with the relevant standards and will not generate impacts that are not documented and assessed.

Findings

43. I find that having taken into consideration the response from Essential Energy and the expert evidence, I find I have sufficient evidence to be satisfied that the requirements of s 2.48 of SEPP TI are met. I am not persuaded by the evidence of Mr Barr that the development application lacks sufficient detail for the Court to determine and assess the impacts of the development. In my view the technical drawings, the correspondence from Energy Australia and the advice from the Level 3 certified accredited service provider are sufficient to assess and determine the acceptability of any impacts. I accept and prefer the submissions of Dr Smith for the reasons that follow.

44. With reference to the language of the provision s 2.48(2) of SEPP TI I prefer and adopt the submissions of Dr Smith that the requirement to ‘give written notice’ to Essential Energy is not a concurrent role. I am satisfied that the correspondence from the Respondent, and the subsequent reply by Essential Energy, satisfy the provision at subs (2)(a) of s 2.48. Further, in determining the development application I have taken into consideration the correspondence from Essential Energy, as required by subs (2)(b). In doing so I am satisfied, on the evidence of the Level 3 Accredited Service Provider from ‘Consolidated Power Projects’, that the proposed development is designed to comply with AS/NZS 7000:2016 and ISSC 20. Further, I am satisfied that evidence details the expert has considered any potential adverse impacts that could arise from the development on the electrical infrastructure and from that infrastructure on the development. That assessment concludes that the proposed safety clearances are acceptable for the voltages present on the existing infrastructure. On this basis I impose the condition extracted at [37] and find that s 2.48 of SEPP TI is satisfied.

Impact to the classified road.

45. Section 2.119 of SEPP TI – Development with frontage to a classified road.

1. Pursuant to s 119(2) of SEPP TI the consent authority must not grant consent to development on land fronting the classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

46. The proposed development is located on land fronting Bangalow Road, a classified road. The Court was assisted by evidence from Traffic Experts who undertook joint conferencing and prepared a report which was tendered in the proceedings as Exhibit D. Their joint report addressed the potential for the proposed sign to impact the safety, efficiency and ongoing operation of the classified road. In doing so they assessed three locations along Bangalow Road where driver decision making or potential distraction were relevant. They note their agreement on each of those locations as follows:   

“Location 01

…

(e) The proposed sign will not be in proximity to decision making points withing Location 01 (traffic lights merging lanes or roundabouts), and will not distract from driving decisions. There is no change to the already very low crash risks in this location due to the introduction of the digital sign.

…

Location 02

…

(e) At 103m from the digital sign, which is the eastern end of Location 02, the proposed digital sign will appear as 8cm wide by 2.3cm high at the windscreen and would cover 0.15% of a typical car windscreen area. The digital sign would not be a dominating feature in the forward view.

(f) A glance to the digital sign in Location 02 would not distract a driver from instantaneously observing vehicle indicators, brake lights, deceleration or turning ahead as all of these things would occur in the foreground in the same view line as the digital sign in the background.

(g) Location 02 is a simple driving environment with no need for rapid decision making. Cognitive loads imposed on the driver are low and processing any advertising material on a digital sign would not pose any meaningful increase in cognitive load in this location.

…”

(Exhibit D)

47. In relation to Location 03, the traffic consultants recommend the relocation of an existing roundabout directional sign to separate it from the context of the proposed digital sign. This relocation is agreed by the Respondent. The experts and the parties propose the following agreed condition of consent.

“Prior to the granting of the construction certificate, the green roundabout direction sign along the northern side of Bangalow Road is to be relocated from its current position to approximately 40m further north-west along Bangalow Road and installed in accordance with AS1742.15(2019) and with approval of the Local Traffic Committee.”

48. The traffic experts have also assessed and agreed upon any impact arising from the proposed sign to the safety of pedestrians. They conclude that:

“(a) The proposal will not reduce the safety of pedestrians or bicyclists. By observation, very few pedestrians cross in Location 02 or Location 03 and very few cyclists use Bangalow Road.

Off road paths are provided on both sides of Bangalow Road for use by less experienced and less confident cyclists. In any case, cyclists riding in the road shoulder or pedestrians crossing the Bangalow Road would be in a driver’s forward view and observed from a long distance away on approach to them because there are no sight line obstructions to them.

(b) A glance to the digital sign of 0.5 to 0.75 seconds will not change the ability for an eastbound driver to recognise well in advance a pedestrian moving into a position to cross Bangalow Road or a cyclist in the left lane shoulder. This driver would be compelled to then re-assess the position of the pedestrian or the cyclist as they moved towards and past them, regardless of the presence of the digital sign.

(c) The digital sign will in no way reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas. It does not block any sight lines to any movements.”

(Exhibit G)

49. The parties agree, and I accept, that on the preceding basis I am satisfied that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the proposed sign. Further, I find that it is not a development of a type that is sensitive to traffic noise or vehicle emissions. I note that no access is proposed for the development from Bangalow Road. Section 119(2) of SEPP TI is satisfied.

Ballina Local Environmental Plan 2012

50. The Site is zoned E2 Commercial Centre under LEP 2012 gazetted on 26 April 2023. Development for the purpose of signage is permitted in the zone as an innominate permissible use. In determining the development application, I have given consideration to the objectives of the E2 Commercial Centre zone. They are:

•  To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

•  To encourage investment in commercial development that generates employment opportunities and economic growth.

•  To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

•  To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To enable tourist development that is compatible with the commercial nature of activities in the zone.

•  To encourage development that—

(a)  recognises natural, cultural and built heritage, and

(b)  uses resources efficiently, including energy and water, and

(c)  is compatible with the hierarchy of centres.

51. The proposed signage structure is 7.35m above existing ground level, therefore compliant with the height standard under LEP 2012 of 8.5m.

52. LEP 2012 includes the following relevant definitions that are relevant to the proceedings:

advertising structure has the same meaning as in the Act.

Note—

The term is defined as a structure used or to be used principally for the display of an advertisement.

…

signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following—

(a)  an advertising structure,

(b)  a building identification sign,

(c)  a business identification sign,

but does not include a traffic sign or traffic control facilities.

53. Pursuant to cl 7.1: Acid sulfate soils in LEP 2012, the proposed development is located on land mapped on the Acid Sulfate Soils map as Class 2. The proposed works will involve minor excavation to secure footings for the advertising structure. The SEE estimates that less than 1 tonne of soil will be disturbed. I am satisfied that the site is not located within 500m of Class 1,2,3 or 4 land and does not propose works that will cause the water table to be lowered below 1m Australian Height Datum. The Applicant has prepared an Acid Sulfate Soils management plan for minor works which is tendered in the proceedings as Exhibit 6. I find that the provisions of cl 7.1 of LEP 2012 are satisfied.

54. The town planning experts in their supplementary joint report record their agreement that, firstly the objective of cl 7.7 ‘Essential Services’, namely that development is supplied with adequate and appropriate levels of infrastructure servicing is met, and secondly that the correspondence from Essential Energy demonstrates that electricity can be made available to the site. On the basis of the reasoning at [43-44] in relation to electrical supply, I accept that the services that are essential to the proposed development are available. Thus cl 7.7 ‘Essential Services’ of LEP 2012 is satisfied.

Is the development prohibited?

Agreed principles of statutory construction

55. As part of the Respondent’s written submissions the applicable principles of statutory construction were summarised as follows:

“The principles of statutory construction in relation to subordinate legislation[1] are well defined and may be summarised as:

a. A purposive and practical approach is to be given to the whole of the instrument. [2]

b. All words in an instrument are to have meaning and effect. [3]

c. General words are to be given their plain and ordinary meaning unless the contrary is shown. [4]

d. All words, must prima facie, be given some meaning and effect[5] , and construed to produce’ the greatest harmony and the least inconsistency’. [6]

e. Where there are two provisions in a single piece of legislation which initially appear to be in conflict since it is ‘improbable that the framers of legislation could have intended to insert a provision which has virtually no practically effect, one should look to see whether any other meaning produces a more reasonable result’[7] ; and

f. Interpretation is to give effect to evident purpose or object of the instrument. [8] ”

(Respondent’s written submissions 24 March 2023)

1. Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59 at 65; Parry v Osborn [1955] VLR 152; 4Nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191; (2017) 224 LGERA 301 at [45], [106]; Whittaker v Northern Beaches Council (No 3) [2018] NSWLEC 143; (2018) 235 LGERA 5 at [28]

2. Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16 at [19] and Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323.

3. Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ; Beckwith v R (1976) 135 CLR 569 at 5784; 12 ALR 333 at 337 per Gibbs J; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679; 24 ALR 513 at 518-19 per Mason J, which whom Barwick CJ agreed at 674; 515 and Aickin J agreed at 680; 519

4. Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 per Dixson J at 647; Maunsell v Olins [1975] AC 373 at 382; [1975] 1 All ER 16 at 18 per Lord Reid; Ireland v Johnson, CEO Department of Corrective Services [2009] WASCA 162; (2009) 189 IR 135 at [31] per Miere J, which whom Wheeler and Pullin JJA agreed at 136; Commissioner for ACT Revenue v Dataflex Pty Ltd [2011] ACTCA 14; (2011) 5 ACTLR 271; 252 FLR 50 at [42].

5. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

6. Australian Alliance Assurance Co Ltd v Attorney General (QLD) [1916] ST Qd 135 at 161 per Cooper CJ; T v T [2008] FamVAFC 4; (2008) 216 FLR 365 at [82].

7. Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574; 116 ALR 54 at 63 per Gummow J

8. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151; Davies v Western Australia (1904) 2 CLR 29, noting that where a provision in delegated legislation is so ambiguous that no meaning can be given to it, it may be found to that the delegated legislation has not been properly exercised and the provision will be held to ultra vires.

56. These principles were broadly agreed with the Applicant, with the exception of an emphasis by Dr Smith that:

1. the task of statutory construction must begin with a consideration of the text itself, relying on Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47] and Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 at [26]; and

2. the drafting of section 3.8(1) of SEPP Industry is otherwise not a situation where the drafter of the Policy has been less than “fastidiously precise” in his or her choice of language, such that only limited weight would be given to the particular text used (see Tovir Investments Pty Limited v Waverley Council [2014] NSWCA 379 at [54] per Leeming JA, with whom Macfarlan JA agreed, both agreeing with Basten JA).

The Respondents submissions

57. The Respondent’s contentions raise a threshold issue that the proposed development is prohibited by the operation of s 3.8(1) of SEPP Industry. The terms of the provision is extracted at [26]. The Respondent submits that by virtue of the development being located on land within the ‘coastal environment area’ and/or ‘coastal use area’ under SEPP RH, the land is within the zone or descriptions of “environmentally sensitive area”, “natural or other conservation area” and “scenic protection” for the purposes of s 3.8(1) of SEPP Industry.

58. The Respondent argues that the following sections of SEPP Industry are also relevant to the question of whether the proposed development is prohibited:

3.5   Relationship with other environmental planning instruments

In the event of an inconsistency between this Chapter and another environmental planning instrument, whether made before or after this Chapter, this Chapter prevails to the extent of the inconsistency.

Note—

This Chapter will have the effect of modifying, and having paramountcy over, the provisions of some other environmental planing instruments that permit the display of signage with or without development consent. This is particularly so in the case of large advertisements, being advertisements of the kind referred to in Part 3.3. This Chapter (other than section 3.14) will not override a prohibition on the display of signage that is contained in another environmental planning instrument. Because of some provisions, such as sections 3.8 and 3.19, it may add prohibitions on advertising if the advertising is proposed to be displayed in certain circumstances, such as on environmentally sensitive or environmentally significant land or in the form of a roof or sky advertisement.

….

3.7   Advertisements to which this Part applies

(1)  This Part applies to all signage to which this Chapter applies, other than the following—

(a)  business identification signs,

(b)  building identification signs,

(c)  signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it,

(d)  signage on vehicles.

(2) Despite subsection (1)(d), section 3.26 applies to signage on a trailer (within the meaning of the Road Transport Act 2013).

59. Further, s 3.2 of SEPP Industry sets out the definitions which apply to Chapter 3 of the instrument. I note there is no specified definition for the listed terms in s 3.8(1) of SEPP Industry, relevantly ‘environmentally sensitive development’, ‘natural or conservation area’ or ‘scenic protection area’. However, s 3.2(3) and (4) state:

(3)  In this Chapter, a reference to a zone, in relation to an environmental planning instrument, is a reference to an area, reserve or zone (within the meaning of the instrument) identified in the instrument by the words or expressions used in this Chapter to describe the zone or by like descriptions or by descriptions that incorporate any of those words or expressions.

(4)  Notes in this Chapter do not form part of it.

60. The Respondent argues that the effect of s 3.2(3) is that the prohibition in s 3.8(1) of SEPP Industry is not limited to zones identified in an Environmental Planning Instrument (EPI) but also to a specific ‘area’ identified in an EPI. I note the parties agree that SEPP RH is such an EPI.

61. In addition to the provisions of SEPP RH extracted at [15-19] the Respondent argues the following provisions are relevant to Courts determination of the question of whether the proposed development is prohibited by s 3.8 of SEPP Industry:

2.2   Interpretation

(1)  In this Chapter—

certified coastal management program means the following—

(a) a coastal management program prepared, adopted and certified under Part 3 of the Coastal Management Act 2016,

(b)  a coastal zone management plan under the Coastal Protection Act 1979 that continues to have effect under clause 4 of Schedule 3 to the Coastal Management Act 2016,

(c)  a coastal zone management plan under the Coastal Protection Act 1979, certified and made in accordance with clause 6(1) of Schedule 3 to the Coastal Management Act 2016, that is taken to be a coastal management program prepared and adopted under that Act.

coastal environment area—see section 2.4(4).

Coastal Environment Area Map means the State Environmental Planning Policy (Resilience and Hazards) 2021 Coastal Environment Area Map.

coastal lake means a body of water identified in Schedule 1.

coastal use area—see section 2.4(5).

Coastal Use Area Map means the State Environmental Planning Policy (Resilience and Hazards) 2021 Coastal Use Area Map.

coastal vulnerability area—see section 2.4(3).

Coastal Vulnerability Area Map means the State Environmental Planning Policy (Resilience and Hazards) 2021 Coastal Vulnerability Area Map.

coastal wetlands and littoral rainforests area—see section 2.4(2).

Coastal Wetlands and Littoral Rainforests Area Map means the State Environmental Planning Policy (Resilience and Hazards) 2021 Coastal Wetlands and Littoral Rainforests Area Map.

public authority has the same meaning as in the Act.

the Act means the Environmental Planning and Assessment Act 1979.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Chapter.

(2)  Words and expressions used in this Chapter have the same meanings as they have in the Coastal Management Act 2016, unless otherwise defined in this Chapter.

(3)  Subject to subsection (2), words and expressions used in this Chapter have the same meanings as they have in the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006, unless otherwise defined in this Chapter.

(4)  Notes included in this Chapter do not form part of this Chapter.

62. As s 2.2(3) of SEPP RH makes reference to the Coastal Management Act 2016 (CM Act), Ms Reid relies on the definitions of ‘Coastal environmental area’ and ‘Coastal use area’ in the CM Act as follows:

…

8   Coastal environment area

(1)  The coastal environment area means the land identified by a State environmental planning policy to be the coastal environment area for the purposes of this Act, being land containing coastal features such as the coastal waters of the State, estuaries, coastal lakes, coastal lagoons and land adjoining those features, including headlands and rock platforms.

(2)  The management objectives for the coastal environment area are as follows—

(a)  to protect and enhance the coastal environmental values and natural processes of coastal waters, estuaries, coastal lakes and coastal lagoons, and enhance natural character, scenic value, biological diversity and ecosystem integrity,

(b)  to reduce threats to and improve the resilience of coastal waters, estuaries, coastal lakes and coastal lagoons, including in response to climate change,

(c)  to maintain and improve water quality and estuary health,

(d)  to support the social and cultural values of coastal waters, estuaries, coastal lakes and coastal lagoons,

(e)  to maintain the presence of beaches, dunes and the natural features of foreshores, taking into account the beach system operating at the relevant place,

(f)  to maintain and, where practicable, improve public access, amenity and use of beaches, foreshores, headlands and rock platforms.

…

9   Coastal use area

(1)  The coastal use area means the land identified by a State environmental planning policy to be the coastal use area for the purposes of this Act, being land adjacent to coastal waters, estuaries, coastal lakes and lagoons where development is or may be carried out (at present or in the future).

(2)  The management objectives for the coastal use area are as follows—

(a)  to protect and enhance the scenic, social and cultural values of the coast by ensuring that—

(i)  the type, bulk, scale and size of development is appropriate for the location and natural scenic quality of the coast, and

(ii)  adverse impacts of development on cultural and built environment heritage are avoided or mitigated, and

(iii)  urban design, including water sensitive urban design, is supported and incorporated into development activities, and

(iv)  adequate public open space is provided, including for recreational activities and associated infrastructure, and

(v)  the use of the surf zone is considered,

(b)  to accommodate both urbanised and natural stretches of coastline.

…

63. Ms Reid submits that the descriptor of ‘Coastal Environment Area’, when read with the objectives in the CM Act, identify the area that contains natural coastal features whose values are to be protected and enhanced and identifies the environmentally sensitive features of the area. Further, the descriptor ‘Coastal Use Area’, read with the objectives, identify that the area is adjacent to natural coastal features and that the natural scenic values of the coast in that area are to be protected and enhanced. It is these areas that are the focus of determining whether the areas fall within the descriptors of: ‘environmentally sensitive area’, ‘natural or other conservation area’ or ‘scenic protection’ in s 3.8(1) of SEPP Industry with the effect of rendering the proposed development prohibited.

64. Having regard to the above statutory framework Ms Reid concludes that the land subject of the proposed development is zoned as ‘coastal zone’ and is within the areas described as ‘coastal use area’ and ‘coastal environment area’. Applying this conclusion to the terms of s 3.8(1) of SEPP Industry she notes:

1. The terms of s 3.8(1) of SEPP Industry operates as an express prohibition that extends to ‘land’ that is within any of the listed zones or descriptors of another EPI.

2. The use of the language of ‘within’ a description is expansive.

3. That s 3.2(3) of SEPP Industry expands the concept of zone to include an ‘area’.

4. The use of the word ‘or’ between zones or descriptions is disjunctive and therefore the prohibition is to land not just within the explicit ‘zone’, but also separately to land that falls ‘within’ a description in the list.

65. In conclusion Ms Reid argues the Court would be satisfied that the land is within the ‘coastal use area’ which is an area that is a ‘scenic protection area’. The land is also within the ‘coastal environment area’ which is a natural conservation area and an environmentally sensitive area, by reference to the textural indicators in the definitions of each in the CM Act.

66. I note that Ms Reid further submits that the four matters listed at [64] distinguish the provision at s 3.8(1) of SEPP Industry with the provision in Schedule 1 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors) and the decision of the Court in Rosewood Australia Pty Ltd v Ku ring gai Council [2019] NSWLEC 84 (Rosewood).

67. Further, Ms Reid notes the relevance of the decision of the Court in Pepperwood Ridge Pty Ltd v Newcastle Council [2006] NSWCA 122 (‘Pepperwood’). She notes (emphasis original):

‘The decision in Pepperwood Ridge Pty Ltd v Newcastle City Council [2006] NSWCA 122; (2006) 145 LGERA 340 is instructive. In that case, the applicant argued that land within Zone 7(c) of the Newcastle Local Environmental Plan 2003 (‘NSLEP’) satisfied the chapeau of Schedule 1 to SEPP Seniors on the basis of a descriptor in the zone objectives. The Court of Appeal found, following Punnett [, that it was not confined to the short name given to the relevant zone, however there needed to be words in the text of the NLEP or the map which were used descriptively with reference to the land (at [36]). The Court of Appeal found that it required the words relied upon to be words of description that identified the land in accordance with one or more of the words or expressions set forth in Schedule 1 (at [36], [40]-[42]), and ultimately found that the objectives of a zone could be used for the ‘identification’.

(Respondent’s written submissions 24 March 2023)

68. The decision referred to in the preceding as ‘Punnet´ is a reference to Warringah Shire Council v Punnett & Associates Pty Ltd (2001) 122 LGERA 1; [2001] NSWCA 480.

69. Applying the reasoning of the Court in Pepperwood, Ms Reid concludes in the present case the land is not required to be ‘identified’ by such a descriptor as those listed in s 3.8(1) of SEPP Industry, but is to be within an area or zone meeting the description. Those being relevantly an: ‘environmentally sensitive area’, ‘natural or other conservation area’ or ‘scenic protection area’. She emphasises this test is slightly more relaxed than the requirement for identification that was required in the decisions of Pepperwood and Rosewood which were relevantly applying the provisions in SEPP Seniors.

The Applicant’s submissions

70. The Applicant submits that the proposed development is permitted with consent and not otherwise constrained by the operation of s 3.8(1) of SEPP Industry. That is, the works are not located within an “environmentally sensitive area”, “natural or other conservation area” or “scenic protection area” under any environmental planning instruments when those terms are properly construed.

71. The Applicant argues that ‘coastal environment area’ and the ‘coastal use area’ are not specifically listed or otherwise constitute zones or descriptions consistent with the matters listed in s 3.8(1) of SEPP Industry when considered on their terms or in their context.

72. Applying and giving emphasis to the words used in s 3.8(1) of SEPP Industry, Dr Smith argues the operative text is “any of the following zones or descriptors”. He argues that therefore the relevant enquiry is limited to the specific zones or descriptors listed, of which ‘coastal environment area’ and the ‘coastal use area’ are not listed. Further, he notes that none of the words or expressions in s 3.8(1) incorporate the term “coastal”.

73. Dr Smith argues that for the Respondent’s conclusions to be accepted additional words and required to be inserted into s 3.8(1) of SEPP Industry. To do so, he argues, is contrary to the decision Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 (‘Taylor’) at [38], which states:

“The question of whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of additions or omissions in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provisions. It is answered against a construction that fills “gaps disclosed in the legislation”, or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

74. The Applicant argues the approach advocated by the Respondent is inappropriate as it seeks to either extract a single word from a composite expression used in s 3.8(1), or otherwise compare a single word to an expression, when making a determination as to whether something is a “description” for another term in s 8.3(1) of SEPP Industry

75. In support of his submissions Dr Smith extracts a helpful summary of cases that have previously considered similar provisions in other EPI’s found in the decision of S J Connelly CPP Pty Ltd and Kate Singleton Pty Ltd (No 2) [2019] NSWLEC 199 (Connelly) at [83]. I have considered those cases and detail their reasoning in my findings.

76. Dr Smith argues that the reasoning in none of the previous decisions of the Court support the reliance of the Respondent on the presence of a particular word in the objection of ss 8, 9 of the CM Act to identify the land by a description contained in s 3.8(1) of SEPP Industry and thus engage it. Further, he argues that even if such an approach was permitted, it cannot be said that the site is on land that pertains to a description of any of the expressed terms contained in s 3.8(1) of SEPP Industry.

77. In support of their approach the Applicant makes two further arguments. Firstly, that the text of ss 8,9 of the CM Act is not focussed on identification of land but pertains to the establishment of management objectives in relation to that land. Dr Smith submits that pursuant to s 14 of the CM Act, the Council in preparing a coastal management program, must give effect to the management objectives for the coastal management areas covered by the program. As such, the objectives set out in ss 8 and 9 of the CM Act relate to a management program development function rather than an identification function. Secondly that on its terms the text of s 3.8(1) of SEPP Industry is further constrained than the provisions of SEPP Seniors considered in previous decisions of the Court relied on by Ms Reid. Dr Smith argues:

“Further to the above, the Applicant submits that the issue for Council is even further constrained in this case in light of the clear and limited use of language in section 3.8(1) of SEPP Industry. That is, by comparison to Schedule 1 of the Housing SEPP [SEPP Seniors] considered by the Court above “environmentally sensitive land” was described in Schedule 1 of the SEPP as (emphasis added):

“Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions:

SEPP Housing [SEPP Seniors] used three different operative phrases in Schedule 1 namely: “the following descriptions”, “like description” or “descriptions that incorporate any of the following words or expressions”. However, that is not the case here. The operative phrase in section 3.8(1) of SEPP Industry is limited to “following zones or descriptions” which is clearly, and the Applicant submits intentionally, more restrictive than other “like” descriptions. Accordingly, applying Tovir Investments, the Court would not venture in the extended comparative exercise sought by the Council.

(Applicant’s written submissions 8 March 2024)

78. Finally, Dr Smith emphasises that if the approach advanced by the Respondent is correct, it would have the effect that the display of an ‘advertisement’, as defined by SEPP Industry, would be prohibited in vast areas of the Ballina Local Government Area and the eastern seaboard of NSW. He submits that such a consequence would warrant clear legislative intent.

The relevant caselaw

79. Clause 4 SEPP Seniors had a three step process to determine if it applied to the relevant land. Firstly, it applied to land in NSW that was zoned primarily for urban purposes (or adjoining such land). Secondly, where development for the purpose of the listed uses in sub cl (1)(a) was permitted on the land. And finally, where the land was not excluded by land described in Sch 1 ‘Environmentally Sensitive Land’ of SEPP Seniors. At the time of the judgment in Punnet Sch 1 stated:

“Land identified in another environmental planning instrument by any of the following descriptions or by like descriptions or by descriptions that incorporate any of the following words or expressions—

(a) coastal protection,

(b) conservation (but not land identified as a heritage conservation area in another environmental planning instrument),

(c) critical habitat,

(d) environment protection,

(e) open space,

(f) escarpment,

(g) floodway,

(h) high flooding hazard,

(i) natural hazard,

(j) high bushfire hazard

(k) scenic (but not land that is so identified if—

(i) the land is within a residential zone in which development of two storeys or more in height is permitted, or

(ii) an adjacent residential zone, also identified as scenic, permits development of two storeys or more in height),

(l) water catchment,

(m) natural wetland.”

80. Schedule 1 was drafted in broad terms. To be excluded land could be identified in another EPI in three ways. Firstly, by the listed descriptor, secondly, by a like descriptor or finally by a descriptor that incorporates the word or expression.

81. In Punnet the Court held that it was sufficient for the relevant land to be listed in a category of open space zones in the EPI to be excluded from SEPP Seniors by the operation of Sch 1. Given this, Punnet is the authority for the proposition that in determining whether specific land is identified in Sch 1 of SEPP Seniors the consent authority is not confined to the short name of the zone in determining if the land is identified by the listed descriptors, or like descriptors, or descriptors that incorporate the words: Punnet at [35].

82. In Pepperwood the Court considered whether words in the relevant zone objective identified the land by the description ‘conservation’ in Sch 1 or by like descriptors, or descriptors that incorporate the words. In Pepperwood the Court concluded, on the framing of the specific objectives in the relevant EPI, that Sch 1 was not satisfied merely because zone objectives included the term ‘conservation’ in the objective.

83. In Whittaker the Court was required to determine whether the description ‘geotechnical hazard’, as utilised in the Pittwater Local Environmental Plan 2014, was a like description for the expression ‘natural hazard’ as used in Sch 1(i) of SEPP Seniors. Following a textual analysis of the specific word the Court held that it was not, and that to equate ‘geotechnical hazard’ as being a like descriptor of natural hazards was to impermissibly broaden its meaning.

84. In the matter of Australian Nursing Home Foundation Limited v Ku ring gai Council [2019] NSWLEC (ANH v Ku ring gai) the issue for determination was whether the land being mapped on the Terrestrial Biodiversity Map, pursuant to cl 6.3 of the Ku ring gai Local Environmental Plan 2015 (KLEP), is a description in the EPI which is a descriptor, like descriptor, or a description that incorporates the words either ‘conservation’ or ‘environmental protection’ in Sch 1 of SEPP Seniors. The Court held that the word ‘biodiversity’ is not a like description or a similar verbal description for ‘conservation’ or ‘environmental protection’ because when the meaning is considered in context ‘biodiversity’ is not an attribute of the land and in the specific context did not have anything to do with ‘environmental protection’ or ‘conservation’.

85. The interaction between KLEP and SEPP Seniors was further considered in Rosewood which again raised the issue of whether the description ‘biodiversity’ on the Terrestrial Biodiversity Map under cl 6.3 ‘Biodiversity Protection’ of KLEP was a like descriptor to the words and expressions in Sch 1 of SEPP Seniors. Consistent with ANH v Ku ring gai the Court held that:

“biodiversity’ is not a like description for “environmental protection”, “conservation” or “critical habitat” being the relevant descriptors in sch 1 of SEPP Seniors. The identification of the site on the Map, in my view, does nothing more than identify that the land has “biodiversity” as an attribute.

86. In SJ Connelly the relevant land was mapped under the CM Act as part ‘coastal wetland’ and part ‘proximity area for coastal wetlands’ is a term that was a description, like description or description that incorporated the words or expressions of “natural wetland” or “coastal protection” in Sch 1 of SEPP Seniors. In the proceedings the parties agreed that the area of the site mapped as ‘coastal wetlands’ was a like descriptor for “natural wetlands” in Sch 1 of SEPP Seniors. The remaining issue for the Court was therefore whether ‘proximity area for coastal wetlands’ is a term that was a description, like description or description that incorporated the words or expressions of “coastal protection” in Sch 1 of SEPP Seniors.

87. In SJ Connelly the Court reasoned that:

“If the words ‘proximity area for coastal wetlands’ alone are considered, the term is not a like descriptor for ‘coastal wetland’ or ‘natural wetland’ in sch 1 as the ordinary and natural meaning of ‘proximity’ is land near or close to other land (applying the dictionary definitions of “proximity: from the Macquarie Dictionary (online) is helpful on this occasion).

“The purpose of such an area is to act as a buffer area to coastal wetlands is confirmed by cl 11 of the CM SEPP. As noted above at [88], the development of land subject to cl 11 requires its potential impact on adjacent coastal wetlands to be assessed. The limits on development specified in cl 11 are not connected with attributes of the proximity land itself. Pepperwood, Whittaker and Rosewood suggest that in order to determine whether Sch 1 applies close consideration of the words used to describe particular land is required. In Pepperwood the Court of Appeal rejected construction of words used to describe land by reference to the objectives of the applicable zone in which the land was located. In Rosewood Robson J highlighted the need to identify the description of an attribute of land in an LEP in determining if words of like description applied. Even applying a “flexible verbal formula” as referred to in Whittaker cannot overcome the absence of wording in the phrase “proximity area for coastal wetlands” as denoting land which has itself an attribute of “coastal protection” or “natural wetland”.

88. Considering all these textual and contextual matters, I do not consider that Sch 1 to the Seniors Housing SEPP applies to that part of the Applicant’s land which is identified as within the “proximity area for coastal wetlands”, as shown on the Area Map, a screenshot of which is set out above at [27]. Consequently, the Seniors Housing SEPP applies to that part of Reysson’s land and an SCC can be applied for in relation to it.”

Findings

89. Whilst none of the preceding cases considered the specific provision at s 3.8 of SEPP Industry, their reasoning is informative. I note however that, on its terms, the terms of s 3.8(1) of SEPP Industry is less expansive than that at Sch 1 of SEPP Seniors. The terms of Sch 1 of SEPP Seniors specified three categories into which terms could fall for the schedule to apply. Firstly, the specific descriptors listed in the schedule itself. Secondly, like descriptors, and finally descriptions that incorporated the terms or expressions used in the list. In contrast, the application of the prohibition in s 3.8(1) of SEPP Industry is restricted to land which under an EPI is either within any of the listed zones (and applying cl 3.2(3) of SEPP Industry an “area”), or within a listed description.

90. It is not in dispute that the proposed development falls within the definition of an advertisement for the purposes of cl 3.8 and is not of a type excluded from the provisions of the chapter by s 3.7(1) of SEPP Industry.

91. Further, the proposed development is not of a type which falls within the provisions of s 3.8(2) which excludes the operation of the clause at Mount Panorama and displays of advertisements at specified public sports facilities.

92. In considering the terms of s 3.8(1) of SEPP Industry the display of an advertisement is prohibited on land that is:

1. Under an EPI within any of the following zones:

environmentally sensitive area

heritage area (excluding railway stations)

natural or other conservation area

open space

waterway

residential (but not including a mixed residential and business zone, or similar zones)

scenic protection area

national park

nature reserve

• or

2. Under an EPI within any of the following descriptions

environmentally sensitive area

heritage area (excluding railway stations)

natural or other conservation area

open space

waterway

residential (but not including a mixed residential and business zone, or similar zones)

scenic protection area

national park

nature reserve

93. In the current proceedings the relevant descriptors in dispute are:

‘environmentally sensitive area’;

‘natural or other conservation area’;

‘scenic protection’.

94. The Respondent relies on SEPP RH and the CM Act as the relevant EPI’s. Both are EPIs pursuant to s 1.4 of the EPA Act.

95. The Macquarie Dictionary provides the following relevant definition of the ordinary meaning of the word ‘description’:

1. Representation by written or spoke words, a statement that describes

2. Sort; kind; variety: persons of that description

96. I accept the submission of the Respondent that the plain and ordinary meaning of the term ‘within’ is to be in the compass or limits of, but not beyond a descriptor. The definition in the Macquarie Dictionary is consistent with this submission.

97. The relevant land is mapped under SEPP RH as ‘Coastal Environment Area’ and ‘Coastal Use Area’. By reference to the text of the provisions, extracted at [62], s 5 of the CM Act and s 2.4(4) of SEPP RH have the effect of defining the land as falling within the ‘Coastal Zone’. On the basis of the reasoning which follows, I accept the Applicant’s submissions and find that the proposed development is not prohibited by the operation of s 3.8(1) of SEPP Industry. Further, I accept and agree with the Applicant’s submissions that the terms ‘coastal zone’ is not a zone listed in an EPI that applies to the land, nor does it fall within a descriptor at s 3.8(1) of SEPP Industry.

98. Finally, I accept and agree with the Applicant’s submissions that the terms ‘coastal environment area’ and ‘coastal use area’ are not zones listed in an EPI, nor do they, in my view, fit within any of the listed descriptors at s 3.8(1) of SEPP Industry. My reasoning follows.

Is the “Coastal zone” within a descriptor “environmentally sensitive area” in s 3.8(1)?

99. Applying the first application of s 3.8(1) of SEPP Industry, the term 'coastal zone' is not a zone listed in sub cl (1) of the provision. The remaining question is whether it falls within the description of 'environmentally sensitive area'. Applying a similar reasoning to that detailed in Whittaker I am not persuaded that it is appropriate to read the term 'coastal zone' as within (in the scope of) the description 'environmentally sensitive area'. It is not correct in my view to say the ‘coastal zone’ is a statement that describes a term that is of the same kind as ‘environmentally sensitive area’. In the context of the EPIs relied on by the Respondent, the coastal zone is an expression that has a specific meaning, it is defined at s 5 of the CM Act as comprising four management areas. Not all of those areas are by their nature environmentally sensitive, but are identified by specific hydrological, floristic characteristics (s 6 CM act), specific land features (s 8 CM Act) or by their adjacency those specific features (s 9 CM Act). For example, the land mapped as ‘Coastal use area’ is delineated as such only due to its adjacency to the Coast, not by any specified characteristic of the land itself.

100. When read in context, it is my view, that these descriptions are in contrast to the description 'environmentally sensitive area' which, when given its ordinary meaning, denotes an area that, for example, has significant features of its ecosystem that are vulnerable to destruction.  

101. Applying this reasoning to s 3.8(1) of SEPP Industry, the term ‘coastal zone’ when given its meaning in the CM Act or SEPP RH is not a description under an EPI that in my view falls within the bounds of the descriptor ‘environmentally sensitive area’. In my view they have different meanings, the coastal zone has a specific meaning as defined by the CM Act which includes land which has no nominated environmental attributes. Whereas in the alternative environmentally sensitive land is land which is described as such inherently because of specific environmental attributes. Thereby, they are of a different descriptive nature.

102. Following the principles relevant to the construction of an EPI, I have determined, on the facts of this case that "coastal zone” is not within the descriptor of 'environmentally sensitive area'.

Is the “Coastal use area” within the descriptor “scenic protection area” in s 3.8(1)?

103. Applying the first application, the term 'coastal use area' is not a listed zone under s 3.8(1) of SEPP Industry. I accept the submissions of the Applicant (see [70-78]) that none of the words or descriptions at s 3.8(1) of SEPP Industry incorporate the term ‘coastal’ as a zone or area. Secondly, given the term the meaning detailed at s 8(1) of the CM Act, the ‘Coastal use area’ means land identified by the EPI and mapped as being adjacent to coastal waters, estuaries, coastal lakes and lagoons, none of which are descriptors used in s 3.8(1) of SEPP Industry

104. Considering the second application of the clause, in their submissions the Respondent, relying on the decision in Pepperwood, directs the Court to ss 8 and 9 of the CM Act to define the meaning of the terms ‘Coastal Environment Area’ and ‘Coastal Use Area’ respectively. In doing so the Respondent relies on both sub cl (1) and (2) of ss 8 and 9 of the CM Act. However, in my view, in each of ss 8 and 9 of the CM Act it is only subs (1) of the provision that has such a definition or identification function. Subsection (2) of each provision provides management objectives, which are, in my view, not descriptive or definitional of what the term means. This finding is supported by the definition of ‘management objectives’ contained within the CM Act, which is:

management objectives, for a coastal management area, are the management objectives for the area set out under Part 2.

105. I have accepted the submissions of the Applicant that the text is subs (2) of each provision are relevant to the preparation of Coastal Management Plans, as detailed at s 14 of the CM Act, rather than providing a definition or identification. Given this finding, I note that neither the coastal environment area or the coastal use area as defined by ss 8(1) and 9(1) of the CM Act contain a reference to the term ‘scenic’ as relied on by the Respondent.

106. To the extent, the Respondent argues that the coastal use area is within the description of ‘scenic protection area’ listed in s 3.8(1) of SEPP Industry. I find as follows, the description ‘scenic protection area’ has, in my view, a distinct and separate meaning to the term ‘coastal use area’. The mapped description of ‘Coastal use Area’ and the description contained in s 9(1) of the CM Act, seek to define the delineated area by its proximity to the nominated features. Those listed features are evocative of the coastal environment, but the coastal use area is delineated by proximity to these features, not by the presence of the features themselves on the land within the mapped area.

107. The Macquarie dictionary defines scenic as ‘of or relating to natural scenery; having fine scenery.’ With scenery defined as the general appearance of the place; the aggregate of features that give character to an area’.

108. Reading the term contextually, in my view, scenic protection is a reference to an area where the land is delineated and managed to maintain its aesthetic values or characteristic attributes. That is not the intent of the term ‘coastal use area’ which, applying s 9(1) of the CM Act is an area defined by proximity to listed features where development is or may be carried out in the future. In my view this does not fall within the description of ‘scenic protection area’. In the context of s 3.8(1) of SEPP Industry, to equate the description of the land as a ‘Coastal use area’ as falling within the description ‘scenic protection area’ goes beyond the bounds of the descriptor and would broaden its meaning in a manner similar to that which was held in Whittaker to be impermissible.

109. If my findings at [103-104] are in error and I should give weight to the management objectives in s 9(2) of the CM Act in construing the meaning of the ‘Coastal use area’ I find as follows. Those objectives are directed to the protection of scenic, social and cultural values of ‘the coast’ (a broad term) which is not equivalent to the defined term ‘coastal use zone’. The Respondence reliance on the presence of the word ‘scenic’ in the objective of s 9(2)(a) of the CM Act is insufficient to render the term ‘coastal use area’ as being within the descriptor ‘scenic protection’ for reasons concomitant with those found at [109]-[110] of this judgment.

110. Further, in my view the reasoning and findings in Pepperwood (as summarised at [82]) are not supportive of the submissions of the Respondent because to the extent it may be relevant to consider the management objectives at ss 8(2) and 9(2) of the CM Act neither contain the term ‘scenic protection’ but instead use the terms ‘scenic value’ and ‘natural scenic quality’ respectively.

Is the “Coastal environment area” within the descriptor “natural conservation area” in s 3.8(1)?

111. Pursuant to s 5 ‘Coastal zone’ of the CM Act the coastal zone is comprised of four coastal management areas. They are:

5 Coastal zone

In this Act, the coastal zone means the area of land comprised of the following coastal management areas—

176. LEP 2012 zones the site, and with the exception of the RE1 Public Recreation zone directly across the road from the site, the area E2 Commercial core. Development for the purposes of signage is a permitted innominate use in the zone. To the extent that the zoning table provides an indication of the intended future character of an area, this is a positive integer of signage forming part of that character. Further, the relevant zone objectives seek in part to strengthen the role of the defined area as a centre of business, retail, community and cultural activity.

177. On the Respondent’s case the proposed signage relies on a variation to the signage controls at Table 8.2 of Section 3.4 of DCP 2012. I accept that whilst the proposed sign could be categorised as falling within a number of the nominated descriptors, I find it can be characterised as a Pole or Pylon sign. As so categorised it exceeds the standard of 8m². Applying s 4.15(3A)(b) of the EPA Act, if a DCP standard is sought to be varied by a development the Court, as consent authority, is required to be flexible in applying those provisions and allow reasonable alternative solutions where those alternatives meet the objects of the standard. Those objectives are extracted at [136]. I repeat my findings on compatibility and acceptability of the proposed sign and find that the proposed signage representing effective advertising and communication for the reasons that follow.

178. I note the conclusion of the parties that the signage proposed provides effective communication in a suitable location and is of a high quality design and finish. I find that I can be satisfied that the proposed signage is consistent with these objectives because:

1. The design of the proposed signage is of a streamlined design that does not incorporate extraneous structure, material or components.

2. The supporting structure is proposed to be finished in a recessive colour.

3. The agreed conditions of consent includes a requirement that the sign to be maintained (see condition 30 in Annexure A).

4. The consent is time limited which will ensure that if the sign deteriorates in finish or presentation it will be required to be removed at the conclusion of the term of the consent (see condition 2 in Annexure A).

5. Given my findings on compatibility, and the agreement of the traffic experts at [48] and the maintenance of appropriate light levels [191], I find that the sign is proposed in a suitable location.

181. Further, applying the agreement of the traffic experts and their satisfaction as to the proposed signage not presenting a hazard for the public, I find that the controls at Part 3.4.3 of DCP 2012 are met despite the variation to the advertising area proposed for the proposed pylon sign.

182. Having considered and given weight to the planning controls and the expert evidence I have concluded that the proposed signage is compatible with the desired amenity and visual character of the area in which it is to be carried out.

183. While the proposed sign is not the same as existing signage or structures in the area, that does not mean it is not compatible with the desired amenity and visual character of the area. As Roseth SC observed in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, ‘compatibility’ is different from sameness, saying at [22]:

“22. There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is this different to sameness. It is generally accepted that buildings can exist together without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.”

184. While not the same as existing signage or structures in the area, in my assessment the proposed sign will exist in harmony with its surroundings.

185. For the reasons set out above, I conclude the development the subject of the development application applies is compatible with the desired amenity and visual character of the area, and is of sufficiently high quality design and finish given the purpose and function of the proposed sign, that is subject to the elements. As such, the proposal achieves the objectives at s 3.1(1)(a) of the SEPP Industry.

Expert evidence: Assessment Criteria: Sch 5 of SEPP Industry

186. The second matter of which the consent authority must be satisfied pursuant to s 3.6 of SEPP Industry is that the signage the subject of the application satisfies the assessment criteria specified in Sch 5. Those criteria are:

Schedule 5 Assessment criteria

1   Character of the area

•  Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

•  Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

2   Special areas

•  Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

3   Views and vistas

•  Does the proposal obscure or compromise important views?

•  Does the proposal dominate the skyline and reduce the quality of vistas?

•  Does the proposal respect the viewing rights of other advertisers?

4   Streetscape, setting or landscape

•  Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

•  Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

•  Does the proposal reduce clutter by rationalising and simplifying existing advertising?

•  Does the proposal screen unsightliness?

•  Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

•  Does the proposal require ongoing vegetation management?

5   Site and building

•  Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

•  Does the proposal respect important features of the site or building, or both?

•  Does the proposal show innovation and imagination in its relationship to the site or building, or both?

6   Associated devices and logos with advertisements and advertising structures

•  Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

7   Illumination

•  Would illumination result in unacceptable glare?

•  Would illumination affect safety for pedestrians, vehicles or aircraft?

•  Would illumination detract from the amenity of any residence or other form of accommodation?

•  Can the intensity of the illumination be adjusted, if necessary?

•  Is the illumination subject to a curfew?

8   Safety

•  Would the proposal reduce the safety for any public road?

•  Would the proposal reduce the safety for pedestrians or bicyclists?

•  Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

187. Stuart Gordon, town planning expert for the Respondent, argues that the development is inconsistent with the following assessment criteria in Sch 5 of SEPP Industry. I note that whilst the Respondent’s Statement of Facts and Contentions nominates the development fails to satisfy the criteria in the whole of the schedule, the following are the criteria those which the experts nominate in the joint report:

1. Character of the area:

…

4. Streetscape, setting or landscape:

5. Site and Building

…

188. Mr Gordon’s evidence can be summarised as:

• 1. Character of the area: The sign is inconsistent with the existing character of the locality for three reasons. Firstly, it is a third-party advertising sign, unrelated to the business within the Ballina Central Shopping Centre. Secondly, due to its size, height and scale. Finally, it is out of scale compared to the height of the vegetation and carpark structures within the immediate vicinity of the sign.

• 4. Streetscape, setting or landscape: the scale and proportion of the sign is such that it will be considerably larger that any structures or vegetation in the vicinity of the sign on the southern side of Bangalow Road. It is proposed to be located some 70-75m away from the shopping centre. The sign will protrude 5-10m above the vegetation and the carpark structures. As a result of these attributes, the sign will be inconsistent with the existing landscape of Bangalow Road and will be dominant in the streetscape due to its illumination and digital nature.

• 5. Site and Building: the site is separated by significant distance from the shopping centre and instead is sited within the landscaped edge of the site. The siting of the sign is in a location that is inconsistent with the scale, proportion and characteristics of the built form and landscape in which it is proposed to be located.

189. In contrast Mr Barr’s evidence against the contested criteria in Sch 5 of SEPP Industry can be summarised as:

• 1. Character of the area: The proposed development will blend visually with the existing landscape and built form and will not obstruct views of Little Fisheries Creek nor protrude above the vegetated skyline. It will have limited visual impact and will complement the area's desired amenity and character.

• 4. Streetscape, setting or landscape: The site's current landscape is a heavily developed commercial area with buildings, factories, and infrastructure. The proposed signage will match the visual characteristics of its surroundings in terms of height, scale, and proportion. The proposed signage will add visual interest by its content and the high-quality LED display.

• 5. Site and Building: The scale and proportion of the sign is compatible with the existing built environment which includes the Ballina Central Shopping Centre and it’s at-grade car parking. The site does not contain any identified features of identified significance.

190. Further, the SEE accompanying the development application includes an assessment against the Sch 5 criteria of SEPP Industry. In the joint report the town planning and visual impact experts note their agreement that the criteria in Sch 5 of SEPP Industry, with the exclusion of criteria 1,4, and 5, are satisfied.

Findings

191. I note that the SEE and the Applicant’s closing submissions include an assessment of the development application against the assessment criteria specified in Sch 5 of SEPP Industry. I have read and considered these materials in determining the development application.

192. Dealing first with the body of uncontested criteria, I accept the assessment detailed in the development application and conclude that I am satisfied the impacts of the signage, when assessed against the criteria in Sch 5 of SEPP Industry, are acceptable for the reasons that follow.

• Assessment Criteria 2 Special areas:

• The proposed development is not located in a nominated heritage, environmentally sensitive area or the like. The proposed development will be visible from a portion of land zoned RE1 Public Reserve which is located on the opposite side of Bangalow Road. I note that in this location Bangalow Road is a four-lane road, thus the proposed signage is located a material distance from the public open space. Given this distance, the oblique angle of the view of the proposed sign, and the urban infrastructure setting of Bangalow Road itself, I am satisfied that the proposal will not detract from the amenity or visual quality of this open space area.

• Assessment Criteria 3: Views and vistas:

• The proposed signage does not compromise important views. It is proposed to be located in an urbanised road corridor adjacent to an existing shopping precinct. There are no nominated views or vistas of importance, nor is the proposed sign of a size or scale to detrimentally impact views to the adjacent treed public open space and cycleway.

• Assessment Criteria 6: Associated devices and logos with advertisements and advertising structures.

• The proposed advertising sign is designed to incorporate the capacity to reduce the signs brightness in response to ambient light conditions.

• Assessment Criteria 7: Illumination

• The proposed advertising sign will be illuminated using LEDs installed within the front face of the sign. The development application proposes that the brightness of these LEDs will be controlled to operate within a defined range and be responsive to ambient light conditions.

• Further, the development application is supported by an assessment of the likelihood that the increase in ambient light levels by the introduction of the proposed sign would impact on any local flying fox species. After applying the precautionary principles recommended within the National Light Pollution Guidelines for Wildlife 2023, the assessment concludes that:

• (Exhibit 8)

• The preceding assessment, the mitigation measures and the proposed luminance levels are agreed by the Respondent.

• To ensure the implementation of the mitigation measures, a condition of consent is agreed which states:

‘Luminance levels must comply with the following (cd/sqm):

- Full sun on face of signage – No limit

- Day time luminance (typical sunny day) – 6000 cd/sqm

- Morning and Evening, Twilight and Overcast – 7000 cd/sqm

- Night time 100 cd/sqm

- The screen must display no content from 10pm – 6am.’

• Further, the agreed conditions of consent include verification of lighting levels at the western edge of the Fishery Creek flying fox roost sign post installation of the sign to ensure no increase in illuminance levels.

• I find this criterion has been adequately satisfied.

• Assessment Criteria 8: Safety

• Consistent with my findings at [46-49] I am satisfied that the proposed signage will not reduce the safety of any public road, reduce the safety of pedestrians or obscure sightlines from public areas.

The contested criteria of Schedule 5 of SEPP Industry.

Assessment Criteria 1: Character of the area

193. Consistent with my findings earlier in this judgment I am satisfied that the proposed signage is compatible with the existing character (as described at [12]) and the future character of the area in which it is proposed to be located. I note that there are no delineated themes for outdoor advertising, beyond the controls in DCP 2012, that applies to the area.

194. I find this criterion has been adequately satisfied.

Assessment Criteria 4: Streetscape, setting or landscape.

195. This consideration asks the following questions:

• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

• Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

• Does the proposal reduce clutter by rationalising and simplifying existing advertising?

• Does the proposal screen unsightliness?

• Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

• Does the proposal require ongoing vegetation management?

196. Given my earlier considerations and findings I am satisfied the answer to the first two matters for the proposed signage is ‘yes’. The size of the sign is similar to the existing signage adjacent Bangalow Road and within the Ballina Central Shopping Centre. It is consistent with the types of signage that are permitted by the planning controls in Table 8.3 in DCP 2012. The proposed sign is of a scale, proportion and form that is consistent with the existing streetscape and the planning controls which will govern new development of signage in the area.

197. The third matter does not arise on the evidence in this matter for two reasons. Firstly, the proposed sign does not seek to replace or rationalise any existing signage. Secondly, the proposed pylon sign is located the visual corridor of Bangalow Road which is currently only occupied by road signs and the signage for Ballina Shopping Centre. As such in my assessment the character of the streetscape has the capacity to ‘absorb’ the proposed signage without detrimental impact or clutter. The proposed sign is a single signage element which is clearly separated from any signage nearby.

198. Neither the Respondent or the Applicant, or their experts, argue that the Court should give weight to the potential for the proposed sign to screen unsightliness. I agree that this consideration in the criterion is not applicable to the assessment of the current development application.

199. As to whether the proposed signage will protrude above buildings, structures or tree canopies in the area the evidence of the experts in relation to this matter is summarised earlier in the judgment. The LVIA demonstrates that the surveyed levels of the tree canopy in the vicinity of the proposed development, on particular the existing vegetation to the north and west of it, are approximately twice the height of the proposed sign. Having reviewed the expert evidence, and giving weight to my own observations on site at the commencement of the proceedings of the area relevant to the assessment (as detailed at paragraph [175]), I am satisfied that both support the conclusion that the proposed sign will not protrude above the buildings, structures or tree canopy in the area.

200. Finally, the experts in their oral evidence considered the ongoing maintenance of the existing and proposed additional vegetation within proximity of the proposed sign. I am satisfied that the agreed condition 14 and 28 will ensure ongoing vegetation management.

Assessment Criteria 5. Site and Building.

201. The final contested criterion in Sch 5 is Site and Building. That criteria asks the following questions”

• Is the proposal compatible with the scale, proportion and other characteristics of the site on which the proposed sign is to be located?

• Does the proposal respect important features of the site?

• Does the proposal show innovation and imagination in its relationship to the site or building or both?

202. In relation to the first matter, it is a duplication of the consideration required under s 3.6(1) of SEPP Industry and I rely on my earlier reasoning and findings to conclude the first matter is satisfied. The answer to the question ‘Is proposal compatible with the scale, proportion and other characteristics of the site on which the proposed sign is to be located?’ is yes. In relation to the second matter the key features of the site on which the development is proposed are the Ballina Central Shopping Centre itself, its associated parking and shade structures and stand of existing vegetation. There is no contention that these features are not respected by the proposed development and if fact I find that the height of the proposed sign maintains the dominance of the existing mature fig trees on the site. In relation to the final criteria, I am satisfied that the incorporation of variable and dynamic lighting level controls in the proposed signage is consistent with the proposal showing innovation.

203. Having assessed the proposed sign against the relevant criteria in Sch 5 of SEPP Industry, I am satisfied the signage will have an acceptable impact – both generally and in relation to the matters particularised by the Respondent.

204. For the reasons stated above, I am satisfied that the proposal achieves those objectives set out in s 3.1(1)(a) of the Industry SEPP, and that the signage the subject of the application satisfies the assessment criteria specified in Sch 5. Accordingly, I am satisfied in respect of the matters about which the Court must be satisfied at s 3.6 of SEPP Industry.

Merit Issues

205. Having determined that the jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met, I turn to consider the remaining merit contentions raised by the Respondent in support of the refusal of the development application.

Will approval of the sign create an undesirable precedent?

206. The Respondent argues that the proposed sign will create an undesirable precedent for signage in Bangalow Road as it will establish an example of the acceptability of third-party signage. Further, the Respondent argues that such third-party signage is unconstrained in number as it is not required to be associated with any business, commercial or industrial businesses in the location.

206. Ms Reid argues that the distinction in type of signage (between business identification signage and third party signage) is relevant in the following ways:

1. There is no numerical control in DCP 2012 that restricts the number of third-party signs that are able to be located on a property. A business identification sign is necessarily going to be limited to one sign, you only need to identify the business once and the number of signs permitted on a property is subject to controls in DCP 2012.

2. if this application is approved, it will be the first sign permitted on this stretch of Bangalow Road. Such a location is highly visible and dominated by airport traffic. Subject only to the clutter controls in SEPP Industry, given these characteristics, it is anticipated that further approvals for third party advertising pylon signs would follow.

208. However, Ms Reid acknowledges that in relation to Bangalow Road it would only be the section of the road zoned E2 Commercial Centre in which such signage is permitted. She agrees that such development is not permissible in either the RE2 Public Recreation zoned land or the R2 Low Density Residential land as advertising structures are prohibited in those zones.

209. In the alternative Dr Smith argues two decisions of the Court are relevant to the Courts consideration of precedent. Firstly, the decision of Lloyd J in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 (at [28]):

“A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in tum dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”

210. Secondly, the decision of the Court in MB Investments Pty Ltd v Hawkesbury City Council [2015] NSWLEC 1361 at [53] which states:

“It is not the granting of consent to this proposal that will set a planning precedent for the subdivision of land, within the Grose Wold area, below the minimum lot size shown on the Lot Size Map; but instead the provisions of cl 4.1E of LEP 2012 that provide for the subdivision of land in the Grose Wold area using an alternative qualitative method, that may result in subdivisions below the minimum subdivision lot size shown on the Lot Size Map.”

211. Applying the principles arising from these decisions Dr Smith argues that precedent is not a reason to refuse consent on two grounds. Firstly, it is not the decision to grant consent to the proposed signage in this development application which would create a precent, but rather the provisions of LEP 2012 which permit “signage” which is defined as:

signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following—

(a)  an advertising structure,

(b)  a building identification sign,

(c)  a business identification sign,

but does not include a traffic sign or traffic control facilities.

212. Secondly, in contrast to the decision in Goldin, there is no evidence before the Court to support the Respondent’s proposition that there are other sites in the locality where there is an inevitable consequence of a similar, indistinguishable, application being made.

213. In conclusion Dr Smith submits that for these reasons the granting of consent to the proposed signage structure will not set an undesirable precedent. Further, he argues that the sign is a development that sets a positive precedent as it is consistent with the objectives of the zone and has no unacceptable impacts that arise from it.

Findings

214. As I have found that the Proposed Development is not objectionable in itself, there is no basis on which development consent could reasonably be refused merely because the approval of the application might lead to the making of other similar applications that have an unacceptable adverse impact. I am also not persuaded on the evidence that there is a sufficient probability that further such applications will be made given the development is not permitted in the adjoining zones. Given the current zoning of land in proximity to the site of the proposed signage structure, the area to which such a precedent could apply is limited to the frontage of Bangalow Road zoned E2 Commercial Core, a distance of approximately 480m. In those circumstances, I find that the Respondent’s contention that the approval of the development will create an undesirable precedent is not a reason that supports the refusal of the development application.

215. I accept the submission of Dr Smith that it is appropriate to give weight in the consideration of whether the development will act as a precedent to the choice of the Respondent to designate development for the purpose of signage as permitted in the relevant zone. Further, if future development applications were to be submitted, they, and their impacts, would be assessed on their merits. Such an assessment would include the provisions in the planning instrument in relation to visual clutter and the desired future character of the locality.

216. I do not accept that precedent a valid reason to support the refusal of the development application. Any future development application for signage would need to be considered on its individual merit.

Conclusion

217. I find that development consent should be granted to the proposed signage subject to the annexed conditions which, with the exception of the deferred commencement condition and Condition 10A, were agreed by the parties. Given my findings at [43] I apply Condition 10A to the consent as follows:

10A. Essential Energy

A revised elevation plan is to be submitted to and approved by Essential Energy which shows the required clearance distance from the edge of the proposed structure to the overhead powerline (measured horizontally) prior to the issue of any Construction Certificate.

Orders

218. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2022/33, seeking development consent for new digital signage incorporating the construction of an advertising structure to contain a digital advertisement, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibits are returned with the exception of Exhibit A, K, 1 and 3

D Dickson

Commissioner of the Court

Annexure A

                                                          **********

Endnotes

Amendments

01 July 2024 - Added Annexure A attachment to the bottom of the judgment

Decision last updated: 01 July 2024