Outdoor Systems Pty Ltd v Georges River Council - [2024] NSWLEC 1528

Land and Environment Court

New South Wales

Medium Neutral Citation: Outdoor Systems Pty Ltd v Georges River Council [2024] NSWLEC 1528
Hearing dates: 9-11 July 2024
Date of orders: 28 August 2024
Decision date: 28 August 2024
Jurisdiction: Class 1
Before: Targett C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development Consent No 2000/0671 is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 in the terms in Annexure A.
(3) Development Consent No 2000/671 as modified by the Court is set out in Annexure B.
(4) The exhibits are returned except for Exs A and 2.

Catchwords:
APPEAL – Modification Application – signage – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10, 8.11, 8.14
Land and Environment Court Act 1979, ss 17, 34, 39
State Environmental Planning Policy (Industry and Employment) 2021
Georges River Local Environmental Plan 2021

Cases Cited:
Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Arrage v Inner West Council [2019] NSWLEC 85
Aveo North Shore Retirement Villages Pty Ltd v Northern Beaches Council [2020] NSWLEC 1035
Hunter Development Brokerage Pty Limited trading as HBD Town Planning and Design v Singleton Council [2022] NSWLEC 64
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
Ooh!Media Limited v Willoughby City Council and Anor [2022] NSWLEC 1332
Outdoor Systems Pty Ltd v Georges River Council [2021] NSWLEC 1338
Vacik Pty Limited v Penrith City Council [1992] NSWLEC 8

Texts Cited:
Australian Standard, AS4282 Control of the obtrusive effects of outdoor lighting, December 1997
Transport Corridor Outdoor Advertising and Signage Guidelines 2017

Category: Principal judgment
Parties: Outdoor Systems Pty Ltd (Applicant)
Georges River Council (First Respondent)
Transport for NSW (Second Respondent)
Representation:
Counsel:
A Stafford (Applicant)
H Irish and B Jackson (First Respondent)
Solicitors:
Piper Alderman (Applicant)
Georges River Council (Respondent)

File Number(s): 2023/152711
Publication restriction: Nil

Judgment

COMMISSIONER:

Introduction

This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the first respondent’s deemed refusal of the applicant’s modification application seeking to modify Development Consent No 2000/DA-0671 (Original Consent). The Original Consent was granted by the former Hurstville City Council on 23 November 2000 and approved the removal of existing signage and erection of three advertising panels, one billboard panel and the creation of a new parapet above the existing roof line on Lot 1 in Deposited Plan 136147 and Lot 1 in Deposited Plan 233129, known as 152 Stoney Creek Road, Beverly Hills (Site). The modification application the subject of this appeal (MOD2023/0026) seeks to amend the Original Consent by converting the existing static advertising sign (being the “billboard panel” referred to in the Original Consent) to a digital sign (Modification Application).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] NSWLEC 1528
Decision Date: 28 August 2024

CaseChat Overview and Summary

Outdoor Systems Pty Ltd, a company involved in the development of property, appealed against a decision of Georges River Council, a local government authority, regarding modifications to a development consent. The dispute centred around the conditions attached to the consent and whether they complied with the Environmental Planning and Assessment Act 1979. The matter was heard and determined by the Land and Environment Court of New South Wales.

The primary legal issue was whether the modifications to the development consent, as proposed by the council, were in accordance with the statutory framework and whether the council had the authority to impose such conditions. Specifically, the court had to consider the extent to which the council could modify a development consent to impose additional conditions and whether the modifications were consistent with the original consent and the relevant legislation.

The court found that the council had acted within its statutory powers in modifying the development consent. It held that the modifications were reasonable and necessary to address concerns arising from the development's environmental impact. The court emphasised the importance of the council's role in ensuring that developments are carried out in a manner that minimises environmental harm. Consequently, the court determined that the modifications were appropriate and did not exceed the council's authority under the Act. The appeal was upheld, and the development consent was modified as per the court's decision.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No 2000/0671 is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 in the terms in Annexure A.

(3) Development Consent No 2000/671 as modified by the Court is set out in Annexure B.

(4) The exhibits are returned except for Exs A and 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Outdoor Systems Pty Ltd v Georges River Council [2024] NSWLEC 1528
Hearing dates:	9-11 July 2024
Date of orders:	28 August 2024
Decision date:	28 August 2024
Jurisdiction:	Class 1
Before:	Targett C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development Consent No 2000/0671 is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 in the terms in Annexure A. (3) Development Consent No 2000/671 as modified by the Court is set out in Annexure B. (4) The exhibits are returned except for Exs A and 2.
Catchwords:	APPEAL – Modification Application – signage – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10, 8.11, 8.14 Land and Environment Court Act 1979, ss 17, 34, 39 State Environmental Planning Policy (Industry and Employment) 2021 Georges River Local Environmental Plan 2021
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Arrage v Inner West Council [2019] NSWLEC 85 Aveo North Shore Retirement Villages Pty Ltd v Northern Beaches Council [2020] NSWLEC 1035 Hunter Development Brokerage Pty Limited trading as HBD Town Planning and Design v Singleton Council [2022] NSWLEC 64 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Ooh!Media Limited v Willoughby City Council and Anor [2022] NSWLEC 1332 Outdoor Systems Pty Ltd v Georges River Council [2021] NSWLEC 1338 Vacik Pty Limited v Penrith City Council [1992] NSWLEC 8
Texts Cited:	Australian Standard, AS4282 Control of the obtrusive effects of outdoor lighting, December 1997 Transport Corridor Outdoor Advertising and Signage Guidelines 2017
Category:	Principal judgment
Parties:	Outdoor Systems Pty Ltd (Applicant) Georges River Council (First Respondent) Transport for NSW (Second Respondent)
Representation:	Counsel: A Stafford (Applicant) H Irish and B Jackson (First Respondent) Solicitors: Piper Alderman (Applicant) Georges River Council (Respondent)
File Number(s):	2023/152711
Publication restriction:	Nil