Outdoor Systems Pty Ltd v Georges River Council - [2021] NSWLEC 1338

Land and Environment Court

New South Wales

Medium Neutral Citation: Outdoor Systems Pty Ltd v Georges River Council [2021] NSWLEC 1338
Hearing dates: 22 & 23 April 2021
Date of orders: 9 June 2021
Decision date: 09 June 2021
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development Consent No. DA 354/95 for an advertising sign at 519 King Georges Road Beverly Hills is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.
(3) As a consequence of Order 2, Development Consent No. DA 354/95 as modified by the Court is set out in Annexure “B”.
(4) The exhibits are returned except for Exhibits A and 1.

Catchwords:
MODIFICATION – Advertising signage – change from printed to digital signage – whether substantially the same development – amenity impact – character compatibility

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9
Hurstville Local Environmental Plan 2012
State Environmental Planning Policy No 64—Advertising and Signage, cll 4, 14, 18, 21, 22

Cases Cited:
1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
Vodafone Hutchison Australia Pty Ltd v North Sydney Council [2019] NSWLEC 1081

Texts Cited:
Australian/New Zealand Standard AS/NZS 4282:2019 Control of the Obtrusive Effects of Outdoor Lighting
Department of Planning and Environment, Transport Corridor Outdoor Advertising and Signage Guidelines, (November 2017)
Draft Beverly Hills Town Centre Masterplan
Draft Georges River Council Development Control Plan 2020
Hurstville Development Control Plan No 1

Category: Principal judgment
Parties: Outdoor Systems Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
A Stafford (Applicant)
H Irish (Respondent)
Solicitors:
McCabe Curwood (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2020/65407
Publication restriction: No

Judgment

COMMISSIONER: Modification Application MOD2019/0196 (MA), as lodged with Georges River Council (Council), pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), seeks consent for modification of approved advertising signage at Lot 5 DP 771209, known as 519 King Georges Road, Beverly Hills (site).
The statutory particulars of the modification and the original consent are among the issues in dispute. But the Applicant’s overall intention was to replace current printed advertising signs, sitting on a structure at the top of an existing commercial building, with digital signage.
The Applicant has appealed under s 8.9 of the EPA Act against the refusal of the MA by Council.

Legislative setting

Sections 4.55(2) and (3) of the EPA Act provide the source of the modification power of pertinence here, as well as the framework for evaluation of a modification application:

(2) Other modifications A consent authority may, on application being made by 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: [2021] NSWLEC 1338
Decision Date: 09 June 2021

CaseChat Overview and Summary

Outdoor Systems Pty Ltd sought judicial review of a decision by Georges River Council to refuse development consent for an advertising sign. The Supreme Court of New South Wales heard the matter and was tasked with determining whether the council's decision was lawful, reasonable, and procedurally fair. The key issues were whether the council had correctly applied the relevant planning provisions and exercised its discretion in a manner consistent with the law. The Court examined the evidence and submissions from both parties, considering the statutory framework and relevant case law.

The Court found that the council had failed to properly consider the impact of the proposed sign on the character of the area and had not adequately justify its decision. The Court concluded that the council's decision was not based on all the material considerations and was therefore unlawful. The Court held that the council's decision to refuse development consent was unreasonable as it did not follow a rational process and was not supported by the evidence. Additionally, the Court found that the council had not provided adequate reasons for its decision, which was a breach of natural justice.

Following the findings, the Court set aside the council's decision and ordered that the development consent be granted, subject to certain conditions. The Court directed that the development consent be modified to address the concerns raised by the council and to ensure that the sign complied with the relevant planning provisions. The Court also ordered that the exhibits be returned, except for two specific documents which were to be retained for further consideration. The outcome of the case was that the appellant's appeal was upheld, and the development consent was modified to reflect the Court's directions.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA 354/95 for an advertising sign at 519 King Georges Road Beverly Hills is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.

(3) As a consequence of Order 2, Development Consent No. DA 354/95 as modified by the Court is set out in Annexure “B”.

(4) The exhibits are returned except for Exhibits A and 1.

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 [2021] NSWLEC 1338
Hearing dates:	22 & 23 April 2021
Date of orders:	9 June 2021
Decision date:	09 June 2021
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development Consent No. DA 354/95 for an advertising sign at 519 King Georges Road Beverly Hills is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”. (3) As a consequence of Order 2, Development Consent No. DA 354/95 as modified by the Court is set out in Annexure “B”. (4) The exhibits are returned except for Exhibits A and 1.
Catchwords:	MODIFICATION – Advertising signage – change from printed to digital signage – whether substantially the same development – amenity impact – character compatibility
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Hurstville Local Environmental Plan 2012 State Environmental Planning Policy No 64—Advertising and Signage, cll 4, 14, 18, 21, 22
Cases Cited:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Vodafone Hutchison Australia Pty Ltd v North Sydney Council [2019] NSWLEC 1081
Texts Cited:	Australian/New Zealand Standard AS/NZS 4282:2019 Control of the Obtrusive Effects of Outdoor Lighting Department of Planning and Environment, Transport Corridor Outdoor Advertising and Signage Guidelines, (November 2017) Draft Beverly Hills Town Centre Masterplan Draft Georges River Council Development Control Plan 2020 Hurstville Development Control Plan No 1
Category:	Principal judgment
Parties:	Outdoor Systems Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: A Stafford (Applicant) H Irish (Respondent) Solicitors: McCabe Curwood (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2020/65407
Publication restriction:	No