Sevcol Pty Ltd v Sydney City Council
[2001] NSWLEC 36
•11/28/2000
Land and Environment Court
of New South Wales
CITATION: Sevcol Pty Ltd v Sydney City Council [2001] NSWLEC 36 PARTIES: APPLICANT
RESPONDENT
Sevcol Pty Ltd
Sydney City CouncilFILE NUMBER(S): 10211 of 2000 CORAM: Pearlman J KEY ISSUES: Construction & Interpretation :- development consent - advertising structure - modification of s 121B order LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B, s 121K CASES CITED: Auburn Municipal Council v Szabo and Anor (1989) 67 LGRA 427 DATES OF HEARING: 28/11/2000 EX TEMPORE
JUDGMENT DATE :
11/28/2000LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr M S Campbell (Barrister)
SOLICITORS
Craig Milne & Company
Mr J E Robson (Barrister)
SOLICITORS
Abbott Tout
JUDGMENT:
IN THE LAND AND 10211 of 2000
ENVIRONMENT COURT
Pearlman J
OF NEW SOUTH WALES 28 November 2000
- Applicant
Respondent
1. The matter with which I am concerned is a class 1 appeal lodged by Sevcol Pty Limited in respect of an order made by Sydney City Council under s 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).
2. The order relevantly relates to premises known as 16 - 18 Broadway, Chippendale (“the premises”). It provides materially that the applicant must remove from the premises an unauthorised free-standing advertising panel and structure. The order specifies compliance within 28 days.
3. The applicant has appealed against that order and seeks its revocation on three grounds. They are as follows:
(1) it has development consent in respect of the structure erected at the premises which means that there is no basis for the order;
(2) it has no legal capacity to enter upon the premises to remove the advertising structure because that structure is the subject of a lease granted by the applicant which has not yet expired;
(3) it would be fair and reasonable for the structure to remain.
4. I have concluded that I should not revoke the order but that I should in the exercise of my power under s 121ZK of the EP&A Act, modify the order by extending the time for compliance to a period of six months.
5. The reasons for my conclusion are as follows.
6. The critical issue in this case is whether there is on foot a development consent authorising an advertising structure as distinct from an advertising panel at the premises and whether the time limitation expressed as a condition of the original consent was limited to the advertising panel and not the advertising structure.
7. That issue is explained in this way. On 23 July 1990 the council issued a notice of the grant of consent in respect of development application number Z9000050. The consent provided:-
The council as the responsible authority grants its consent to the application submitted by Nettlefold Advertising Pty Limited with the authority of C E Norman for permission to erect on the abovementioned premises a free standing advertising panel measuring 12.5 metres in length and 4.5 metres high to be illuminated by floodlights only and to display various messages as required all in accordance with the submitted Drawing number 6930E1 dated 29 January 1990.
8. That consent was issued subject to eight special conditions. Three are relevant to this issue, and are as follows:
1. The consent for the proposed advertising panel shall be limited to a period of three years.
4. Prior to the erection of the advertising panel the applicant shall lodge with council an undertaking in writing that such advertising panel shall be removed at the expiration of the development consent.3. The visible parts of the advertising structure shall be metal clad and painted in neutral colour to the satisfaction of the director of planning and building.
9. It can be seen from those conditions that the applicant’s case rests on a distinction being drawn between the structure as such and the actual advertising panel because if that distinction is drawn then it could be said that conditions 1 and 4 (which impose a time limit of three years) relate only to that part of the structure which comprises the advertising panel and not to the advertising structure itself.
10. It is relevant to note that the development consent also contained a condition, numbered 8, requiring a building application to be submitted for “the proposed structure”.
11. I should add at this stage that building approval was in fact granted subject to conditions on 2 November 1990 in respect of works set out in plans numbered WD1 and WD2.
12. Once again, condition 11 of the building consent was in the same terms as condition 1 of the development consent, namely, that consent for the proposed advertising panel shall be limited to a period of three years.
13. There has been a string of modifications to that development consent. It has been modified on two occasions to extend the period of three years. In 1997, consent was given to a modification of the proportions of the structure. However, the proper construction of the development consent is, I think, that it granted consent to the erection of an advertising structure on which there would be a free standing advertising panel.
14. The issue is not so much what was the subject of the development consent in 1990 but what is the proper construction of condition 1. Specifically, the issue is whether condition 1, that is, the time period of three years, should be confined to the proposed advertising panel and not the whole structure.
15. Common sense dictates that the council intended, in granting the consent, that the time limit should relate to the structure as well as the advertising panel. That follows I think from the fact that the advertising panel alone could not have been erected without the supporting structure. Indeed, the plan drawing number 6920E1 (which was separately tendered as ex ‘D’) shows the advertising structure as being of the dimensions of 12.6 metres by 13.6 metres.
16. There are other indicators that fortify me in that construction of the consent. In order to determine its proper construction, I am entitled to examine the development consent itself and any documents expressly or by necessary implication forming part of that development consent (Auburn Municipal Council v Szabo and Anor (1989) 67 LGRA 427 at 434).
17. The consent refers to the application submitted and developed by Nettlefold Advertising and it refers to the drawing. I am entitled to look at those documents.
18. The drawing envisages a whole structure. The development application was accompanied by a statement of environmental effects prepared by Geoffrey S Burns dated 20 January 1990 and it describes the proposed structure in the following terms:-
It will be a free standing structure with a panel area 12.5 wide by 4.5 high with the top lining up with the immediately adjacent wall to number 8 and hard against this wall whilst still within number 18.The proposed advertising structure which will be in the form of an advertising panel is to be located in the north-eastern corner of the site such as to gain the greatest visibility and exposure to eastern bound traffic, both vehicular and pedestrian, in Broadway.
19. That suggests to me that the proper construction of condition 1 is that it relates to what was to be erected upon the site. That was a structure with an advertising panel upon which advertising material could be placed.
20. I am fortified in that conclusion by a letter dated 9 November 1993 which was in evidence. It is a letter from Mr Cyril Mellman, architect, who was the owner of the site and concerned about the three year time limitation. He says:
It seemed reasonable to believe that the three years would run for three years from the completion of the construction of the advertising structure and fit out ready to receive advertising material.
21. For all these reasons I consider that the time limit of three years first imposed by condition 1 of the development consent and subsequently extended on two occasions refers to the whole of the structure. Accordingly, the conclusion which follows is that there is no extant development consent in respect of either the advertising structure itself, or that part of it which comprises the advertising panel.
22. The second ground upon which the applicant claims that the order should be revoked is that the applicant does not have the legal capacity to enter upon the premises to remove the structure. That is because of the terms of a lease registered number 2126070 granted by the applicant to Olympic Murals 2000 Pty Limited for a term of seven years commencing on 4 October 1995. The lease relates to that part of the premises being the advertising structure erected upon the premises.
23. Mr Campbell, for the applicant, submitted that if the applicant was to enter upon the premises to remove the structure in the face of that lease, it would be in breach of the lease and exposing itself to an action for damages.
24. In response, Mr Robson, for the council, pointed to the fact that under the terms of s 121B, the council was entitled to issue the notice to the owner. Section 121B.5 relates to an order to, amongst other things, demolish or remove an advertisement or any associated advertising structure. It provides, in column 3, that the person to whom that order can be directed is the person who caused the advertisement or advertising structure to be erected or the owner or the occupier of the premises on which the advertisement is displayed or the advertising structure is erected.
25. The evidence shows that the applicant has been the moving party in relation to this advertising structure. Since it acquired the premises from Mr Mellman pursuant to a contract for sale dated 2 May 1995, it has made various applications itself to the council in relation to the advertising structure and the advertising panel, and it is consistent with that history that the council should issue the order to the applicant.
26. The terms of the lease are relevant, I think, in relation to any relationship between the applicant and the lessee. They are not determinative of the question as to whether the order was properly issued to the applicant as owner, and whether the applicant can enter upon the premises to remove the structure. I only make this observation. It is perfectly clear from the terms of the lease that it was subject to the development consent to which I have earlier referred, being development approval Z9000050. It refers to that and it also refers in cl 26(1)(a) to the initial expiry date of 26 July 1996.
27. I reject therefore the applicant’s claim that it is not empowered to obey the order. The order follows as a matter of law and the applicant is bound to carry out its terms.
28. I have considered the other factors that were raised. Mr Campbell raised a factor of fairness. I did not understand that factor as being a factor that I should take into account in order to revoke the notice. It is important, I think, to consider the question of fairness in relation to the terms of the order.
29. Certainly the applicant has had full knowledge that this was a limited consent. It has by its actions, acted with that knowledge, seeking on two occasions an extension of that time. It is not unreasonable to think that the applicant would be aware that it might at some stage be required to remove the advertising structure and the advertising panel and I do not think that any element of unfairness dictates that I should make any order other than a modification of the order.
30. I have taken into account the fact that the applicant has lodged with the council on 25 October 2000 a development application seeking development consent in respect of the advertising structure. I do not know the terms of the development application precisely, but the statement of environmental effects which accompanied that development application was tendered as ex ‘2’, and it states that the applicant seeks development approval to modify the existing free standing advertising structure and to display a general advertising sign of 46.2 square metres. I have been informed from the bar table that the development application was refused by the council on 24 November 2000.
31. I was also informed by Mr Campbell on instructions that the applicant intends to appeal against council’s refusal of that development application.
32. As I said during the hearing in connection with an application by the applicant to adjourn these proceedings, the subject matter of such an appeal, if there is to be an appeal, is quite different, in my opinion, to the subject matter of these class 1 proceedings. I do not think that the fact that there may be a class 1 appeal against that council refusal at some time in the future is any reason for revoking the order that has now been issued.
33. I have also taken into account the fact that the recent development application was intended by the applicant to be a response to a decision of this Court, made by Commissioner Hussey on 7 August 2000, refusing to grant consent to a development application proposing the use of the advertising panel at the premises.
34. In par 45 of his judgment on that date, Commissioner Hussey said:
I accept that an appropriate sign could be permitted in this location notwithstanding the heritage streetscape constraints, however, the size and specification of the sign should demonstrate reasonable satisfaction of the controls.
35. There may be, as Mr Campbell submits, a prospect of success on an appeal against that latest development application in view of the findings of Commissioner Hussey, but once again, as I have said, such an appeal will deal with a different matter and I do not think it forms a basis for revoking the order.
36. Mr Robson conceded that the removal of the advertising structure and the advertising panel would be expensive, costing about $51,000. That is a considerable sum of money and has prompted me to conclude that I should extend the time for compliance for a period of six months.
37. I make the following orders:
(1) The appeal is upheld insofar as it relates to a modification of the order issued under s 121B of the Environmental Planning and Assessment Act 1979 by the council on 17 February 2000.
(2) I modify the order by extending the terms for compliance to a period of six months from the date of this judgment.
(3) I make no order as to costs.
(4) The exhibits may be returned.
0
0
1