SGH Property Holdings Pty Ltd v Canterbury-Bankstown Council

[2025] NSWLEC 1031

Land and Environment Court

New South Wales

Medium Neutral Citation:

SGH Property Holdings Pty Ltd v Canterbury-Bankstown Council [2025] NSWLEC 1031

Hearing dates:

Conciliation conference on 15 and 30 October 2024, 19 November 2024,11 and 16 December 2024.

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The Applicant is granted leave to rely on the External Signage Lighting Compliance Report by Marline Building Services dated 27 September 2024.

(2) The appeal is upheld.

(3) Development Application no. DA-642/2024 for the use of eight (8) business identification signs at St George Hotel, 618 Canterbury Road Belmore NSW 2152 being the whole of the land in Lot 1 Deposited Plan 125346 and Lot 1 Deposited Plan 917680 is granted consent subject to Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – use of signage – classified road - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.5, 4.12, 4.15, 4.16, 8.7, 8.10

Land and Environment Court Act 1979, ss 17, 34, 64

Liquor Act 2007

Canterbury-Bankstown Local Environmental Plan 2023

Environmental Planning and Assessment Regulation 2021, ss 4.5, 98.1

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, Pt 3.3, ss 3.1, 3.7, Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and infrastructure) 2021, s 2.119

Texts Cited:

Canterbury-Bankstown Community Participation Plan

Transport Corridor Outdoor Advertising and Signage Guidelines 2017

Category:

Principal judgment

Parties:

SGH Property Holdings Pty Ltd ACN 635 582 160) (Applicant)
Canterbury-Bankstown Council ABN 45 985 891 846
(Respondent)
Transport for NSW (Intervenor on behalf of the Crown)

Representation:

Counsel:
D Plowman (Solicitor)(Applicant)
M Bonnano (Solicitor)(Respondent)
M Winram (Solicitor)(Intervenor)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)
Maddocks (Intervenor)

File Number(s):

2024/334400

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against Canterbury-Bankstown Council’s (Council) refusal of DA-642/2024 for the use of eight (8) business identification signs (five of which are digital signs) (DA) which have been constructed at, and relate to, the business of St George Hotel (St George Hotel) located at 618 Canterbury Road, Belmore being the whole of the land in Lot 1 Deposited Plan 125346 and Lot 1 Deposited Plan 917680 (Land).

2. The proceedings were filed on 10 September 2024 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

4. The statutory power or function to be exercised in determining the proceedings are s 4.16(1) of the EPA Act and s 34(3) of the LEC Act.

5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 15 and 30 October 2024, 19 November 2024, 11 and 16 December 2024. I presided over the conciliation conference.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA subject to conditions in Annexure A.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16(1) of the EPA Act and s 34(3) of the LEC Act to uphold the appeal and grant consent to the DA subject to Annexure A. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied as follows:

1. The DA was made pursuant to s 4.12(1) of the EPA Act.

2. On 20 July 2024 the Applicant lodged the DA with Council, and on 23 August 2024 Council refused the DA pursuant to the power in s 4.16(1)(b) of the EPA Act.

3. The Applicant commenced these proceedings in accordance with the time provision in s 8.10(1)(a) of the EPA Act.

4. As the Applicant is also the registered proprietor of the Land, it is empowered to make the DA pursuant to s 23.1(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. Council is the consent authority pursuant to s 4.5(d) of the EPA Act.

6. On or about 16 October 2024 Transport for NSW (TfNSW) formally intervened in these proceedings pursuant to s 64(1) of the LEC Act, and I have acknowledged TfNSW as the ‘Intervenor’” but note it has not sought nor been granted leave to be formally joined as a party.

7. Subsequently TfNSW granted concurrence to the DA by executing the Agreement between the Parties pursuant to s 34(3) of the LEC Act on 16 December 2024.

8. The DA was notified for 14 days from 17 to 31 July 2024 in accordance Council’s Community Participation Plan.

9. Matters for consideration under s 4.15(1)(a) of the EPA Act are set out below.

10. Canterbury-Bankstown Local Environment Plan 2023 (CBLEP) applies to the Land:

1. The St George Hotel benefits from a hotel licence under the Liquor Act 2007 and its use as a licensed hotel has been approved by Council under earlier development consents.

2. The Land is zoned B2 Local Centre under the CBLEP Land Use Map. The signs, the subject of the DA, are business identification signs, which are permitted with consent within the B2 Local Centre zone.

3. The objects of the B2 Local Centre Zone (zone) are:

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

5. “To encourage employment opportunities in accessible locations.

6. “To maximise public transport patronage and encourage walking or cycling.

7. “To provide for certain residential uses that are compatible with a mix of uses in local centres.

8. “To promote a high standard of urban design and local amenity.”

9. The parties agree that the use of the signs will satisfy the objectives of the zone, in particular by promoting a high standard of urban design and local amenity, encouraging employment opportunities by permitting the hotel to advertise itself more effectively, and by enhancing its ability to serve the needs of people who live in, work in or visit the area.

10. The St George Hotel is not a heritage item under CBLEP, and nor is it located in a heritage conservation zone.

11. In accordance with s 4.15(d) of the EPA Act, the matter raised in the objector’s submission has been considered by Council and the Applicant. The Applicant provided an External Signage Lighting Compliance Report Rev 2 by Marline Building Services Engineers dated 27/9/24 which addressed the potential for lighting spillage, and the concern of the objector has been addressed in so far as a condition of consent in Annexure A regulates light spillage from the digital signs onto adjoining properties.

11. The parties have considered the provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and in particular s 4.6, and agree there is no obvious evidence or history of contamination on the Land. The parties agree the Land is suitable for the proposed use under the DA.

12. State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP), Ch 3 relates to advertising and signage. The aims and objectives are set out in s 3.1:

3.1   Aims, objectives etc

“(1)  This Chapter aims—

(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.

“(2)  This Chapter does not regulate the content of signage and does not require consent for a change in the content of signage.”

1. The parties agree that the signage satisfies the objectives and aims set out in s 3.1 above as it is compatible with the desired amenity and visual character of the area; provides effective communication in suitable locations; and is of high-quality design and finish, all of which gives a public benefit.

2. The parties also agree that the signage complies with the assessment criteria in Sch 5 of the Industry SEPP, and in particular in relation to illumination, flashing and visual dynamics.

3. The more prescriptive requirements of Pt 3.3 of Ch 3 of the Industry SEPP do not apply as the signage is classified as ‘business identification signs’ which are exempt pursuant to s 3.7(1)(a) of the Industry SEPP.

13. The Transport Corridor Outdoor Advertising and Signage Guidelines 2017 (Transport Guidelines) do not apply to business identification signage pursuant to Pt 3.3 of Ch 3 of the Industry SEPP. However, the parties have considered the Transport Guidelines in assessing the substantive aspects of the DA under s 3.1 and Sch 5 of the Industry SEPP, and subject to the conditions of consent in Annexure A, agree that the DA complies with the Transport Guidelines, particularly in relation to consent conditions 4 (illumination) and 10 (which prevents the signage from resembling traffic lights).

14. The provisions of s 2.119(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) applies, and the parties agree that the objectives and the requirements of s 2.119(2) have been met.

2.119   Development with frontage to classified road

(1)  The objectives of this section are—

(a)  to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b)  to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2)  The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

1. Vehicular access to the Land is provided by Kingsgrove Road, and not Canterbury Road. The proposal in the DA is not sensitive to traffic noise or vehicle emissions.

2. The conditions of consent in Annexure A address the requirements of cl 2.119(2) in that the granting of consent to the DA will not adversely affect the safety, efficiency and ongoing operation of the classified road (Canterbury Road) as a result of:

1. The design of the vehicular access to the land;

2. The emission of smoke or dust from the St George Hotel; or

3. The nature, volume or frequency of vehicles using the classified road (Canterbury Road) to gain access to the Land.

15. Pursuant to s 4.15(1)(e) of the EPA Act, the parties agree that the proposed DA, subject to conditions in Annexure A is suitable for the Land and is in the public interest.

16. The parties agree that the DA satisfies all remaining considerations of s 4.15(1) of the EPA Act. There are no proposed instruments that are relevant under s 4.15(1)(a)(ii), nor any planning agreement or draft planning agreement relevant under s 4.15(1)(a)(iiia).

17. The parties further agree that the conditions of consent in Annexure A are lawful having regard to the EPA Act and applicable principles.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The one objector did not attend the commencement of the s 34(1) conciliation conference on 15 October 2024 which was held on the Land. I have perused the written submission of the objector and considered what issues were raised. I have also considered the matters set out above in par [7], and consider that the DA meets the objectives of the B2 Local Centre Zone by promoting a high standard of urban design and local amenity, encouraging employment opportunities by permitting St George Hotel to advertise itself more effectively, and by enhancing its ability to serve the needs of people who live in, work nearby or visit the area.

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

10. I am not required to, and I have not, considered the merit issues in these proceedings.

11. The Court orders:

1. The Applicant is granted leave to rely on the External Signage Lighting Compliance Report by Marline Building Services dated 27 September 2024.

2. The appeal is upheld.

3. Development Application no. DA-642/2024 for the use of eight (8) business identification signs at St George Hotel, 618 Canterbury Road Belmore NSW 2152 being the whole of the land in Lot 1 Deposited Plan 125346 and Lot 1 Deposited Plan 917680 is granted consent subject to Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A

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Decision last updated: 23 January 2025