Sexsy Pty Limited v Parramatta City Council

[2006] NSWLEC 723

Land and Environment Court

of New South Wales

CITATION:	Sexsy Pty Limited v Parramatta City Council [2006] NSWLEC 723
PARTIES:	APPLICANT Sexsy Pty Limited RESPONDENT Parramatta City Council
FILE NUMBER(S):	10686 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- signage associated with an approved Restricted Premises (adult bookshop and associated products)
LEGISLATION CITED:	Sydney Regional Environmental Plan No. 28 - Parramatta State Environmental Planning Policy No. 64
DATES OF HEARING:	6/11/06
EX TEMPORE JUDGMENT DATE:	11/06/2006
LEGAL REPRESENTATIVES:	APPLICANT Ms H Irish, barrister SOLICITORS Minter Ellison RESPONDENT Mr P Marincowitz SOLICITORS Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 November 2006

10686 of 2006 Sexsy Pty Limited v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA/1055/255 by Parramatta City Council (the council) for signage associated with a Restricted Premises (adult bookshop and associated products) approved by the council on 2 September 2005 at 239 - 243 Victoria Rd., Rydalmere (the site).

2 The matter was heard as an On Site Hearing. The judgement reflects the details in the Statement of Basic Facts and the findings given on site on 6 November 2006.

3 The site is Lots 3, 4 and 5 in DP 128732. It is located on the "service lane" area of Victoria Rd, near Bridge Street at Rydalmere. A single storey industrial building is located on the site and is used as a Restricted Premises. Industrial buildings adjoin the site and the predominant land use is industrial. Residential development is located on the opposite side of Victoria Rd and is separated by the service lane and 6 lanes of Victoria Rd.

4 The relevant planning controls are Sydney Regional Environmental Plan No. 28 - Parramatta (REP 28). Clause 40S provides specific controls for The Victoria Road Special Area. Clause 40S(2)(b) requires that the consent authority must be satisfied that "signage has a high standard and provides clear information as to the use of land, the street address and clearly marked entrance and exit ways and is of a scale and nature sympathetic to the building form".

5 Clause 40U provides specific controls for The Rydalmere Station and Environs Special Area. There are no specific requirements for signage although the clause contains general requirements for redevelopment within the area.

6 State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64) also applies. Schedule 1 contains Assessment criteria. The relevant criteria are 1. Character of the area, 2. Special areas, 4. Streetscape, setting and landscape and 5. Site and building.

7 There are no council controls that regulate signage on the site.

8 The proposal seeks the erection of signage attached to the parapet of the existing building. The words "Sexsy - Adult Concepts" are located centrally on the building and occupy the higher portion and larger part of the parapet. The word "Sexsy” is a stylised image and is a Registered Trade Mark (No. 1094354). Sexsy Pty Limited is also a registered company under the Corporations Act 2001. On one side of the parapet are the words "Adult Super Store” and on the opposite side, the web address " The three areas of signage have a total area of 15.17 square metres. The background occupying the remaining area of the parapet is painted black with the remaining part of the building painted dark grey.

9 The council filed a Statement of Issues containing 5 issues although issues 1 to 4 related to the visual impact of the signage and the potential impact on the character and amenity of the area. Issue 5 related to matters raised by objectors.

10 The council proposed an amended signage layout that provided for three smaller areas with a total area of around 4 square metres made up of 2 square metres for the central sign and areas of 1 square metre on either side. The amended signage layout was not acceptable to the applicant.

11 With an understanding of the context and the relevant planning controls, I accept the general layout proposed by the applicant but with some minor changes reduce the area of the black background and replace this area with the dark grey colour of the building.

12 In my view, and in the absence of any specific numerical requirements the proposed signage is acceptable. The sign does not extend above the parapet and is not inconsistent with the signage in immediate area. The existing signage appears to the more haphazard in relation to its location and size than that proposed in this application.

13 The council expressed concern over the size of the word "Sexsy” in the signage although it accepted the use of the word if the signage was smaller. The basis for the opposition was that it would be more visible from people in cars and pedestrians using Victoria Rd. The council's argument, in my view, would have more force if the proposed signage were larger, more prominent in its context and was overtly sexual in its content. I do not accept that the difference between the size proposed by the applicant and that proposed by the council would have any discernible difference in terms of its perception from Victoria Rd and the residential area on the opposite side of Victoria Rd.

14 The council also raised objection to the web address because the site contained images of products available within the premises. I accept that a web address is a legitimate matter to be shown on external signage providing the site depicts goods and products within the approved use of the premises. There was no evidence to suggest anything to the contrary in this case.

15 Overall, I am satisfied that the signage is acceptable considering its context, the absence of any specific numerical requirements and the relevant requirements in REP 28 and SEPP 64.

16 It was agreed that the amendments reducing the black background should be reflected in an amended plan. The amended plan was provided by the applicant on 17 November 2006 and marked as exhibits F.

17 The council’s bundle of documents contained 2 letters of objection however the issues raised addressed the use of the premises rather than the signage or did not relate specifically to the application.

18 Some amendments were made to the council conditions 11 and 12 over the need for an Occupation Certificate and these are reflected in Annexure A.

19 The orders of the Court are:

1) The appeal is upheld.
2) DA/1055/255 for signage associated with a Restricted Premises (adult bookshop and associated products) at 239 - 243 Victoria Rd., Rydalmere is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 3 and F.
____________
G T Brown
Commissioner of the Court