QMS Media Ltd v Georges River Council

[2021] NSWLEC 1691

Land and Environment Court

New South Wales

Medium Neutral Citation:

QMS Media Ltd v Georges River Council [2021] NSWLEC 1691

Hearing dates:

Conciliation conference held on 19 October 2021

Date of orders:

12 November 2021

Decision date:

12 November 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $1.00 within 28 days.

(2) The appeal is upheld.

(3) Development Consent is granted to development application No. 2020/0065 (REV2020/0032) lodged with the Respondent on 9 February 2020 for the erection of a freestanding illuminated digital display advertising sign at Lots 1-2 DP 1108360 and Lots 3-4 DP 15839 (Nos. 591-611) Princes Highway, Blakehurst, NSW 2221 subject to the conditions of consent set out in Annexure A.

Catchwords:

APPEAL – development application – advertising sign – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Georges River Local Environmental Plan 2021, cl 1.8A

Kogarah Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 6.1

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 55 — Remediation of Land, cl 7

State Environmental Planning Policy No 64 – Advertising and Signage, cll 3, 8, 13, 17, 18, Sch 1

Category:

Principal judgment

Parties:

QMS Media Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
J Ware (Solicitor) (Respondent)

Solicitors
McCabes (Applicant)
Georges River Council (Respondent)

File Number(s):

2021/177924

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the erection of a freestanding advertising sign on land adjacent to the Princes Highway at Blakehurst.

2. Development Application No. DA2020/0065 (DA) seeks development consent for the erection of a freestanding illuminated digital advertising sign (Proposed Development) on the land described as Lots 1-2 DP 1108360 and Lots 3-4 DP 15839 and known as 591-611 Princes Highway Blakehurst (Site).

3. The DA was lodged with the Respondent on or around 9 February 2020 and was determined by the Respondent's Local Planning Panel on 5 November 2020 by way of refusal. The Applicant appeals from that decision.

4. The DA was amended by the Applicant with the agreement of the Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended application was uploaded to the NSW Planning Portal on 29 October 2021 and filed with the Court on the same day.

5. The appeal was commenced on 21 June 2021 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

6. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

7. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 19 October 2021. I presided over the conciliation conference.

8. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 29 October 2021 and is supported by a Statement of Reasons – Jurisdictional Pre-requisites prepared by the parties which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court granting development consent to the DA subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

1. The DA was made with the consent of the owner of the Site in accordance with cl 49 of the EPA Reg.

2. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

3. The Georges River Local Environmental Plan 2021 (GRLEP), which came into force on 8 October 2021, applies to the Site. The GRLEP contains a savings provision in cl 1.8A which provides that, if a development application had been made before the commencement of the GRLEP in relation to land to which the GRLEP applies and the application had not been finally determined before that commencement, the application must be determined as if the GRLEP had not commenced.

4. The DA was made on 9 February 2020, prior to the commencement of the GRLEP and had not been finally determined on 8 October 2021 when the GRLEP commenced. In accordance with cl 1.8A of the GRLEP the DA must therefore be determined as if the GRLEP had not commenced.

5. Immediately prior to the commencement of the GRLEP, the Site was within Zone B2 – Local Centre under the Kogarah Local Environmental Plan 2012 (KLEP). The Proposed Development may be carried out with development consent on land within that zone.

6. Clause 2.3(2) of the KLEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to, and am satisfied that the Proposed Development is consistent with, the objectives of the B2 – Local Centre zone in the KLEP. Those objectives include the following:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

7. The Proposed Development complies with the applicable development standards in the KLEP relating to building height (cl 4.3) and floor space ratio (FSR) (cl 4.4). The applicable maximum building height is 21m and the maximum height of the Proposed Development is 8.494m. The applicable maximum FSR is 2.5:1 and there is no issue that the FSR of the Proposed Development, which occupies only a small part of the Site, complies with this requirement.

8. Clause 6.1 of the KLEP requires development consent for the carrying out of works on land which is shown on the Acid Sulfate Soils Map. The Site is shown as Class 5 land on that Map. Clause 6.1 requires development consent for the carrying out of works on Class 5 land only if such works are within 500m of adjacent class 1, 2, 3 or 4 land that is below 5m Australian Height Datum (AHD) and by which the water table is likely to be lowered below 1m AHD on adjacent class 1, 2, 3 or 4 land. The parties’ agreed position, which I accept, is that the DA does not contemplate any excavation that is likely to lower the water table.

9. The State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64) applies to the DA. SEPP 64 requires a number of matters to be considered before granting development consent to the DA.

10. Clause 8 of SEPP 64 provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied—

1. that the signage is consistent with the objectives of the Policy as set out in cl 3(1)(a), and

2. that the signage satisfies the assessment criteria specified in Sch 1 of the Policy.

11. The objectives of SEPP 64, as set out in cl 3(1)(a), are as follows:

(a) to ensure that signage (including advertising)—

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish, and

(b) to regulate signage (but not content) under Part 4 of the Act, and

(c) to provide time-limited consents for the display of certain advertisements, and

(d) to regulate the display of advertisements in transport corridors, and

(e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.

12. Clause 17 of SEPP 64 applies to the DA as the proposed sign both has a display area greater than 20m² and will be higher than 8m above ground. Clause 17 provides that the display of an advertisement to which the clause applies is advertised development for the purposes of the Act and that:

(3) The consent authority must not grant consent to such an application unless—

(a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(b) the application has been advertised in accordance with section 79A of the Act, and

(c) the consent authority gave a copy of the application to TfNSW at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies.

13. The Applicant provided the Respondent with an impact statement addressing the assessment criteria in Sch 1 of SEPP 64 in the Statement of Environmental Effects dated February 2020 which accompanied the DA. The DA was publicly notified by the Respondent for the period from 16 March 2020 to 30 March 2020. No submissions were received. The respondent also referred the DA to TfNSW, in accordance with the requirements of cl 18 of SEPP 64. By letter dated 2 April 2020, TfNSW replied raising no objection to the DA and providing conditions of consent to be included in any development consent issued for the DA. Those conditions have been incorporated in the proposed consent conditions. Accordingly, I am satisfied that the requirements of cl 17 of SEPP 64 have been satisfied.

14. As the Proposed Development will be located within 250m of and will be visible from the Princes Highway, a classified road, cl 18 of SEPP 64 applies to the DA and requires compliance with cl 13(2). Clause 13(2) provides that the consent authority must not grant consent to the DA unless it—

(a) is consistent with the objectives of SEPP64 as set out in cl 3(1)(a), and

(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and in the Guidelines and the consent authority is satisfied that the proposal is acceptable in terms of—

(i) design, and

(ii) road safety, and

(iii) the public benefits to be provided in connection with the display of the advertisement, and

(c) satisfies any other relevant requirements of this Policy.

15. The parties agree and I am satisfied that the Proposed Development is consistent with the objectives as stated in cl 3(1)(a) of SEPP 64 and satisfies the assessment criteria specified in Sch 1 in accordance with the requirements of cll 8 and 13(2) of SEPP 64.

16. As cl 18 applies to the DA, cl 13(3) of SEPP 64 provides that the consent authority must not grant consent unless arrangements that are consistent with the Guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement. The applicant has agreed, and condition 24 of the proposed conditions of consent requires, that for at least 10% of its display time the proposed advertising sign is to be made available for promoting community programs, public safety announcements and other public purposes in a program which is to be approved annually by the Respondent. I am satisfied that this arrangement satisfies the requirements of cl 13(3).

17. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. Under cl 7 of this Policy, a consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. The Site is currently developed as a carpark owned by the Respondent and will continue to be used for that purpose. A static advertising sign was present on the Site for many years but was removed prior to the lodgement of the DA. In those circumstances I am satisfied the Site is suitable for the Proposed Development.

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

13. The Court notes that:

1. The Applicant has amended the development application with the consent of the Respondent Council.

2. The Applicant has uploaded the amended application to the NSW planning portal on 29 October 2021.

3. The Applicant filed the amended application with the Court on 29 October 2021.

14. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $1.00 within 28 days.

2. The appeal is upheld.

3. Development Consent is granted to development application No. 2020/0065 (REV2020/0032) lodged with the Respondent on 9 February 2020 for the erection of a freestanding illuminated digital display advertising sign at Lots 1-2 DP 1108360 and Lots 3-4 DP 15839 (Nos. 591-611) Princes Highway, Blakehurst, NSW 2221 subject to the conditions of consent set out in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (261835, pdf)

Plans (4042883, pdf)

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Decision last updated: 12 November 2021