SLR Consulting Australia Pty Ltd v Wingecarribee Shire Council

[2025] NSWLEC 1402

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SLR Consulting Australia Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1402

Hearing dates:

26-27 March 2025

Date of orders:

05 June 2025

Decision date:

05 June 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   The development application (23/0540) for the construction of a business identification sign (pylon sign) at 1/61 Sallys Corner Road, Exeter, is determined by the grant of consent subject to the conditions in Annexure A.

(3)   Exhibit 2 is returned, and the remaining exhibits are retained.

Catchwords:

APPEAL – highway service centre – business identification sign – whether signage is business identification sign – whether visual impact – whether visual clutter

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.15, 8.7

Interpretation Act 1987, s 5, 11, 33

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, Pt 3.3, ss 3.1, 3.6, 3.11, 3.12, 3.13, 3.15, 3.16, Sch 5

Wingecarribee Local Environmental Plan 2010, cl 2.5, Sch 1 cl 26

Cases Cited:

Abret Pty Ltd v Wingecarribee Shire Council (2011) LGERA 343; [2011] NSWCA 107

Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22

Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233

Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179

OOH! Media Assets Pty Ltd v Ballina Shire Council [2024] NSWLEC 1363

Scully v Leichhardt Council (1994) 85 LGERA 109

Whitehall Property Services Pty Ltd v Randwick City Council [2021] NSWLEC 1762

Texts Cited:

Macquarie Dictionary, 1990

NSW Government Transport Corridor Outdoor Advertising and Signage Guidelines, November 2017

Rural Lands Development Control Plan 2021

Category:

Principal judgment

Parties:

SLR Consulting Australia Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2024/121693

Publication restriction:

Nil

Judgment

1. COMMISSIONER: On the road from Sydney to Goulburn, the Sutton Forest Service Centre is a popular rest stop for travellers, with services on both the west and east side of the Hume Highway. On the east side of the Hume Highway, adjacent to the southbound exit that serves as the service centre entry and access road, SLR Consulting Australia Pty Ltd (SLR) seeks development consent for the erection of signage for Guzman y Gomez (GYG). A GYG premises has recently been approved for construction, pursuant to a development consent granted on 7 December 2023 (DA 23/0563). SLR lodged a development application for the sign on 11 November 2022, which was refused by Wingecarribee Shire Council (the Council) on 5 October 2023. These proceedings are an appeal against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The proposed development is a pylon sign 15m high and 4m wide, comprising a 4m diameter internally illuminated pylon head and two internally illuminated sign boxes that are 1.5m² each (the proposed sign).

3. The Council remains opposed to the grant of development consent, and contends that the development application should be refused on the basis that the proposed sign has an adverse visual impact and will have a detrimental effect on the rural character of the locality. Whilst the Council also contends that the proposed sign does not meet the definition of “business identification sign”, and is instead an advertising sign, this contention informs the conditions that ought to be imposed on the development consent rather than forming a ground for refusal.

4. As set out below, I find that the proposed sign is a business identification sign, and that it does not have an adverse visual impact in the context in which it is proposed. Accordingly, I have determined that it is appropriate to grant development consent subject to conditions.

The proposed location of the sign

5. The site is known as 61 Sallys Corner Road, Exeter, legally described as Lot 101 DP 1205383 (Lot 101). Lot 101 currently comprises an area of 27.06ha that includes the approved GYG food and drink premises, an approved KFC food and drink premises and vacant land. The approved GYG premises and the approved KFC premises have not yet been constructed. The location of the proposed sign in relation to Lot 101 is shown in Figure 1. The McDonald’s food and drink premises, and the Heatherbrae’s Pies food and drink premises are located adjacent to Lot 101, on Lot 100 and Lot 102 respectively.

6. However, Lot 101 DP 1205383 is the subject of a development consent for a three lot subdivision. If the subdivision is carried out, each of the GYG premises and the KFC premises will be located on separate lots (Lot 3 and Lot 2 respectively) and the proposed sign will be located on Lot 1. The plan of subdivision is shown in Figure 2.

7. The proposed sign is to be located around 350m from the GYG premises, and 60m south-west of an existing pylon sign for McDonalds and a multi-panel sign for Heatherbrae Pies and the Service Centre. The surveyed location of the existing signs and the proposed sign is shown at Figure 3.

8. A photomontage of the proposed sign relative to the existing signs is shown in Figure 4.

9. The broader area, including parts of Lot 101, is characterised by rural landscape with grassland and scattered trees. The Sutton Forest Service Centre, which comprises food and drink premises, parking areas and service stations, stands in contrast to that.

The Service Centre development

10. Lot 101 is within an area that is the subject of site specific provisions under cl 2.5 of the Wingecarribee Local Environmental Plan 2010 (WLEP), which allow development for a range of purposes on “land at Sutton Forest Service Centre, Hume Highway, being Lots 7 and 10, DP 811912 and Lot 12 and part of Lot 11, DP 857127.” The area to which that applies is shown in Figure 5.

11. The specific uses that are permissible with consent in that area are “caravan park (with holiday cabins), highway service centre, hotel or motel accommodation, information and education facility, markets, neighbourhood shop and recreation area” (WLEP, Sch 1, cl 26). A highway service centre is broadly defined in the WLEP as “a building or place used to provide refreshments and vehicle services to highway users”. The definition is as follows:

highway service centre means a building or place used to provide refreshments and vehicle services to highway users. It may include any one or more of the following—

(a) a restaurant or cafe,

(b) take away food and drink premises,

(c) service stations and facilities for emergency vehicle towing and repairs,

(d) parking for vehicles,

(e) rest areas and public amenities.

12. On 28 June 2006 development consent was granted for a fast food court, and on 16 May 2011 development consent was granted for a staged masterplan for a service centre on Lot 10 DP 811912. The Statement of Environmental Effects dated June 2009 by CoePlan Consultants (CoePlan SEE) for the service station development application indicates that its target market is “for traffic travelling along the adjoining Hume Highway”. It states (Ex 2, p.48):

“The proposed Highway Service Centre development is to cater for traffic travelling along the adjoining Hume Highway. As a result, the proposal aims to cater for the servicing of heavy vehicles and tourism-based services. It is unlikely that local traffic will be served by the proposed development, with adequate existing resources being located in closer proximity and more centralised areas for the surrounding towns and villages”.

13. The CoePlan SEE contains an overall concept plan for a highway service centre, which is referred to in the evidence as a master plan. The existing highway service centre, known as the Sutton Forest Service Centre (the Service Centre), comprises a number of land uses including service stations and take away food and drink premises on both sides of the highway, but Lot 10 DP 811912 does not appear to have been developed in a manner consistent with the master plan.

14. On 16 March 2015, Lot 10 DP 811912 was subdivided into three lots, including Lot 100, 101 and 102.

15. One of the existing take away food and drink premises is a McDonald’s operation, with premises on each side of the highway. The Council granted consent to allow a pylon sign to be erected on Lot 101 on 31 October 2013 and subsequently modified this consent on 8 October 2018. The consent for the McDonald’s sign is in two stages, with the second stage a multi-panel sign. The second stage has not yet been carried out, and the existing McDonald’s sign is that which is approved as stage 1. The stage 2 multi-panel sign has two spaces that can be used for other food outlet signage, and is shown at Figure 6. 

16. On 10 April 2015 the Council approved the multi panel sign for Heatherbrae’s pies on Lot 101. That sign is in situ and the applicant for that development consent, Australian Property Services (APS) indicated in the assessment process that APS would control the proposed sign, and would be “solely responsible for the various agreements with future users to display their branding” (Ex 2, p.118). Three of the four panels on the Heatherbrae’s panel sign are already in use.

17. There is also signage located to the southwest of Lot 101, along the access road, that is visible when taking the exit to the Service Centre. This includes two Shell service station signs and a second McDonald’s sign. These are shown in Figure 7, and can be seen in the distance in the photomontage in Figure 4 above.

The planning framework for the proposed sign

18. The site is zoned C3 Environmental Management and signage is a nominated permissible use in the zone, pursuant to the WLEP. The objectives of the C3 zone are as follows:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

• To minimise the proliferation of buildings and other structures in these sensitive landscape areas.

• To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas.

• To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability.

19. Signage is defined in the WLEP as follows:

signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following—

(a) an advertising structure,

(b) a building identification sign,

(c) a business identification sign,

but does not include a traffic sign or traffic control facilities.

20. A business identification sign is defined in the WLEP as follows:

business identification sign means a sign—

(a) that indicates—

(i) the name of the person or business, and

(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and

(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,

but that does not contain any advertising relating to a person who does not carry on business at the premises or place.

21. Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) concerns advertising and signage. Section 3.1(1) sets out the aims of the chapter, as follows:

(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.

22. Section 3.6 of the SEPP IE requires the Court, in exercising the functions of the consent authority, to be satisfied of certain matters prior to the grant of development consent. It provides:

3.6 Granting of consent to signage

A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied—

(a) that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5.

23. Schedule 5 provides eight areas of assessment criteria, posing questions in relation to the character of the area, special areas, views and vistas, streetscape, setting or landscape, site and building associated devices, and illumination. They are as follows:

1 Character of the area

• Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

• Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

2 Special areas

• Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

3 Views and vistas

• Does the proposal obscure or compromise important views?

• Does the proposal dominate the skyline and reduce the quality of vistas?

• Does the proposal respect the viewing rights of other advertisers?

4 Streetscape, setting or landscape

• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

• Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

• Does the proposal reduce clutter by rationalising and simplifying existing advertising?

• Does the proposal screen unsightliness?

• Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

• Does the proposal require ongoing vegetation management?

5 Site and building

• Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

• Does the proposal respect important features of the site or building, or both?

• Does the proposal show innovation and imagination in its relationship to the site or building, or both?

6 Associated devices and logos with advertisements and advertising structures

• Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

7 Illumination

• Would illumination result in unacceptable glare?

• Would illumination affect safety for pedestrians, vehicles or aircraft?

• Would illumination detract from the amenity of any residence or other form of accommodation?

• Can the intensity of the illumination be adjusted, if necessary?

• Is the illumination subject to a curfew?

8 Safety

• Would the proposal reduce the safety for any public road?

• Would the proposal reduce the safety for pedestrians or bicyclists?

• Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

24. Part 3.3 of Chapter 3 concerns advertising signage, but does not apply to business identification signs. It imposes additional requirements on advertisements, including requirements that apply to signage proposed within a rural or non-urban zone. The relevant parts of ss 3.13, 3.15 and 3.16 provide:

3.13 Advertisements on rural or non-urban land

(1) This section applies to land that, under an environmental planning instrument, is within a rural or non-urban zone and on which an advertisement may be displayed with the consent of the consent authority.

(2) Except in a case to which subsection (3) applies, the consent authority must not grant consent to display an advertisement on land to which this section applies—

…

(b) if no such development control plan is in force, unless—

(i) the advertisement relates to the land on which the advertisement is to be displayed, or to premises situated on that land or adjacent land, and

(ii) specifies one or more of the following particulars—

(A) the purpose for which the land or premises is or are used,

(B) the identification of a person residing or carrying on an occupation or business on the land or premises,

(C) a description of an occupation or business referred to in sub-subparagraph (B),

(D) particulars of the goods or services dealt with or provided on the land or premises, or

(c) if no such development control plan is in force, unless the advertisement is a notice directing the travelling public to tourist facilities or activities or to places of scientific, historical or scenic interest.

…

3.15 Advertisements with display area greater than 20 square metres or higher than 8 metres above ground

(1) This section applies to an advertisement—

(a) that has a display area greater than 20 square metres, or

(b) that is higher than 8 metres above the ground.

(2) The consent authority must not grant consent to an application to display an advertisement to which this section applies unless—

(a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 5 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(b) the consent authority gave a copy of the application to TfNSW before the application is exhibited if the application is an application for the display of an advertisement to which section 3.16 applies.

....

3.16 Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road

(1) This section applies to the display of an advertisement to which section 3.15 applies, that is within 250 metres of a classified road any part of which is visible from the classified road.

(2) The consent authority must not grant development consent to the display of an advertisement to which this section applies without the concurrence of TfNSW.

(3) In deciding whether or not concurrence should be granted, TfNSW must take into consideration—

(a) the impact of the display of the advertisement on traffic safety, and

(b) the Guidelines.

(4) If TfNSW has not informed the consent authority within 21 days after the copy of the application is given to it under section 3.15(2)(b) that it has granted, or has declined to grant, its concurrence, TfNSW is taken to have granted its concurrence.

(5) Nothing in this section affects section 3.14.

(6) This section does not apply when the Minister for Planning is the consent authority.

25. The Council’s position is that the proposed sign is an advertisement, which is defined by the SEPP IE in the following way:

advertisement means signage to which Part 3.3 applies and includes any advertising structure for the advertisement.

…

advertising structure means a structure or vessel that is principally designed for, or that is used for, the display of an advertisement.

26. If the proposed sign is an advertisement, s 3.15 applies as it is greater than 8m in height, which means that s 3.16 also applies. By letter dated 17 March 2023, TfNSW indicated that they had no objections to the proposed sign, following an amendment to remove a digital display panel from the design. TfNSW also expressed its view that no formal referral to TfNSW was required.

26. Further, if the proposed sign is not a business identification sign and s 3.16 of the SEPP IE applies, s 3.11(3) of the SEPP IE prevents the grant of development consent “unless arrangements that are consistent with the Guidelines have been entered into for the provision of public benefits”. The Guidelines are the NSW Government Transport Corridor Outdoor Advertising and Signage Guidelines dated November 2017 (the NSW Transport Guidelines).

27. The Wingecaribbee Shire Council has a Rural Lands Development Control Plan 2021 (RLDCP), which contains controls with respect to signage, in Part A6.17. The relevant objectives and controls are as follows:

“A6.17.2 Objectives

The objectives for all signage (whether requiring consent or not) in the rural areas are that such signage:

(a) is compatible with the desired amenity and visual character of the area.

(b) provides effective communication in suitable locations.

(c) shall not be confused with or inhibit instructions given by official traffic management facilities and signs.

(d) shall not affect the amenity of an area due to their size appearance, content or placement.

(e) shall not interfere with the visual prominence of any key features in the rural landscape, including any views and vistas.

A6.17.3 Controls

To meet these objectives, all permissible signage shall comply with the following controls:

(a) The location and design of signage shall not interfere with or adversely impact on any landscape elements, including topography, ridgelines, significant vegetation, farm buildings, roads and gateways.

(b) Signs shall be located so as not to cause any visual obstruction to vehicular or pedestrian traffic.

(c) The design and selection of colours and materials of signs must relate to the existing palette of colours in the rural landscape.

(d) All signage must be designed and finished to a high quality.

(e) Signs shall be assessed as to their cumulative effect to avoid proliferation and visual confusion that would detract from the character of the rural landscape. Where appropriate, integrated signage on behalf of several businesses or properties may be suggested.

(f) Council may issue time limited consents for certain types of signage

(g) Signs seeking the consent of Council may only be sited on the land to which the advertised activity or destination applies.

(h) No signs shall be painted directly on to the building façade, with the exception of listed items of Environmental Heritage.

(i) The following signs are prohibited in rural areas:

(i) Any ‘off–site’ signage; including any signage not directly relating to the property on which it is placed, advertising attached to trailers / motor vehicles etc parked on a road or reserve for more than one day in any one month period.

…”

29. In addition, Section A6.19.1 of the RLDCP sets out the assessment criteria for all signage, which reflects the criteria in Sch 5 of the SEPP IE.

The expert evidence

30. Expert opinion evidence was given by Mr Stephen O’Connor, a town planner engaged by SLR, Mr Stuart McDonald, a town planner engaged by SLR and who conducted a visual impact assessment, and Mr Brian McDonald, an architect and town planner engaged by the Council.

31. Mr Brian McDonald’s evidence is that the proposed sign cannot meet the definition of a business identification sign as its location is too far removed from the GYG business that it is intended to promote. He also opines that the proposed sign is not compatible with the desired amenity and rural character of the area, that it is contrary to the criteria under the SEPP IE to avoid the proliferation of signage, and that it is contrary to the Council’s intention to limit the number of signs in the approach to the Service Centre.

32. On the other hand, Mr O’Connor’s evidence is that the proposed sign is a business identification sign on the basis that it is on the same land as the approved GYG premises, and even if subdivided into separate lots, will be on adjacent land. Further, his evidence that the proposed sign and the GYG premises are in the same “place” to which the definition refers, that place being the Service Centre.

33. Mr Stuart McDonald’s evidence is that the proposed sign will not be out of the ordinary, out of context or visually disorderly, given the context in which it is proposed.

34. The expert evidence is considered in more detail below.

Is the proposed sign a business identification sign?

35. The Council contends that the proposed development is an advertisement, rather than a business identification sign. Whilst the Council does not contend that this is a reason for refusal of the development application, it says that if the proposed sign is an advertisement, then there is a requirement for a time limited consent pursuant to s 3.12 of the SEPP IE and for the provision of a public benefit pursuant to s 3.11(3).

36. The Council submits that the requirement for a business identification sign to indicate “the nature of the business carried on by the person at the premises or place at which the sign is displayed” means that there must be a connection between the sign and the place or premises at which the business is being carried out. The Council relies on the evidence of Mr Brian McDonald, that the approved GYG premises, being located 350m in a straight line and 435m by road, is too far removed from the location of the sign for it to be “at the premises or place at which the sign is displayed”. The Council submits that it is irrelevant that the proposed sign is on the same lot of land, and says that the proposed sign is so visually disconnected that it cannot be “at the premises or place” of the approved GYG premises.

37. SLR instead submits that the business is carried on at both the “premises” and the “place” at which the sign is proposed to be displayed. SLR submits that the Court’s resolution of whether the proposed sign is a business identification sign is a matter of statutory interpretation, and is not a matter of evidence, such that the Court would not be assisted by the views expressed by Mr Brian McDonald concerning the distance and lack of visual connection.

38. SLR relies on the definition of premises, found in s 1.4 of the EPA Act (and therefore applies to the SEPP IE pursuant to s 11 of the Interpretation Act 1987):

premises means any of the following—

(a) a building of any description or any part of it and the appurtenances to it,

(b) manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993,

(b1) a vehicle of any description,

(c) land, whether built on or not,

(d) a tent,

(e) a swimming pool,

(f) a ship or vessel of any description (including a houseboat).

39. At the date of the hearing, the proposed sign is to be located on the same lot of land as the GYG premises. Accordingly, SLR submits that the proposed sign is on the land of the business and the business is therefore “at the premises…. at which the sign is displayed” consistent with the definition of business identification sign.

40. Further, SLR submits that the business is also at the “place” at which the sign is displayed. It relies on the Macquarie Dictionary (1990) definition of place, which includes “a particular portion of space, of definite or indefinite extent…; the portion of space occupied for anything; a space or spot, set apart or used for a particular purpose”. SLR also points to the observations of Commissioner O’Neill in Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233 (Howe Architects) at [46]:

“A “place” is not defined by the EPA Act or LEP 2012. Under the Heritage Act 1977, which is not referenced by the EPA Act, “place” means an area of land, with or without improvements. Place is defined by the Australia ICOMOS Charter for Places of Cultural Significance 2013 (the Burra Charter) at 1.1, for the purposes of the Burra Charter, as:

“Place means a geographically defined area. It may include elements, objects, spaces and views. Place may have tangible and intangible dimensions.””

41. SLR submits that ‘place’ should have a wider application than ‘premises’ and does not appear to require that the sign be located on the same parcel of land as the business. In the context of the present application, SLR submits that the word ‘place’ should be interpreted having regard to its ordinary meaning, and in this context, includes the wider highway service centre precinct of which the GYG premises form part. SLR points out that the McDonald’s sign was approved as a business identification sign.

The proposed sign is a business identification sign

42. The first task in determining whether the proposed sign meets the definition of business identification sign, is one of statutory interpretation. Only once the definition is understood, can the facts be considered to determine whether the facts fit within the definition. In considering the latter, the expert evidence could only be relevant if expert opinion can inform the question of whether the facts fall within the definition. As stated by Preston CJ in Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 at [33], “Statutory interpretation is not a matter of evidence, but rather a question of law applying settled principles of statutory interpretation.”

43. The definition, at (a), requires that the sign indicate “the name of the person or business”, and “the nature of the business carried on by the person at the premises or place at which the sign is displayed”. In (b), a sign only falls within the definition if it “does not contain any advertising relating to a person who does not carry on business at the premises or place”.

44. It is therefore important to understand the meaning of the words “at the premises or place”. I accept SLR’s position that the word “premises” can be understood as the defined term pursuant to the EPA Act, which includes “a building of any description or any part of it and the appurtenances to it” and “land, whether built or not”. The words “at the premises” therefore includes at or on an appurtenance to the building, or on the land. However, the land does not necessarily equate to the Torrens title lot (see Scully v Leichhardt Council (1994) 85 LGERA 109, at 110, and Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179 at [108]).

45. In interpreting the word “place”, I accept SLR’s submission that it should be interpreted according to its ordinary meaning, and I find both the Macquarie Dictionary definition and the observations in Howe Architects helpful. A “place” is a defined area set apart by particular features or by its use for a particular purpose.

46. In determining the breadth of the meaning of “at the premises or place”, including the land to which “premises” might refer, s 33 of the Interpretation Act 1987 (which applies pursuant to s 5(6)) requires that a construction that would promote the purpose of the SEPP IE should be preferred to a construction that would not promote that purpose. One of the purposes of Ch 3 of the SEPP IE is to ensure that signage “provides effective communication in suitable locations” (SEPP IE, s 3.1(1)(a)(ii)). Therefore “at the premises or place” must be interpreted to ensure the sign provides effective communication that there is a particular business at the location of the sign, but not so narrowly to confine the location to where there can be no such “effective communication” because the sign cannot be seen (such as on a building that does not have road frontage). In that respect, I do not accept the Council’s position that a visual connection is required between the location of the sign and the location of the business.

47. In my view, applying this definition to the present circumstances, the word “place” encompasses the Service Centre precinct to the east of the Hume Highway of which the approved GYG premises form part, which includes Lot 101. This place was initially defined by the site specific permitted uses in WLEP, Sch 1, cl 26, and then through the subsequent grant of consent to Lot 10 DP 811912 for the Service Centre on the eastern side of the Hume Highway. Both the proposed sign and the GYG premises are located on Lot 101, which is within the precinct, and therefore at the same “premises or place”. Consistent with the definition of a business identification sign, the proposed sign is located on Lot 101 and therefore “at the… place” at which the GYG business will operate, within the precinct. Even if the subdivision of Lot 101 is registered, and the sign is located on a different lot of land to that on which the GYG premises is operating, I consider that the subdivided lots (Lots 1, 2 and 3) all fall within the “place” that is the Service Centre precinct to the east of the Hume Highway.

48. The proposed sign therefore meets the definition of “business identification sign” because the information displayed indicates “the nature of the business carried on by the person at the premises or place at which the sign is displayed”, as it indicates the nature of the GYG business, which is carried out at the place at which the sign is displayed. It has the specific function of identifying a business that is carried out in the eastern precinct of the Service Centre at which the sign is proposed to be located. It similarly does not “contain any advertising relating to a person who does not carry on business at the premises or place”. It therefore meets the definition of business identification sign, and ss 3.11 and 3.12 of the SEPP IE do not apply. This also means that the SEPP IE does not impose any requirement to consider the NSW Transport Guidelines.

The dispute concerning the need for the business identification sign

49. There was some time spent by the parties on the question of whether the proposed sign was necessary to alert passing motorists of the existence of the GYG premises. Whereas SLR is concerned the passing motorists will not be aware of the GYG premises without such a sign, the Council argued that the GYG premises would be visible from the Hume Highway. Mr Brian McDonald’s evidence was that the signage on the building was sufficient to identify the GYG premises.

50. However, absent any planning provision requiring a demonstration of a need for a building identification sign, and absent any other persuasive reason why I ought to consider the need for the proposed sign, the questions of whether the GYG premises will be visible from the Hume Highway or whether the proposed sign is required for the commercial success of the GYG premises are not relevant matters for my consideration. Instead, I am required to take into consideration those matters in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the development application, and determine whether the proposed sign is acceptable. This includes, in particular, the issues raised by the Council in its Statement of Facts and Contentions.

The visual impact and consistency with the rural character

51. The Council contends that the proposed sign will have an unacceptable visual impact and is incompatible with the rural character of the locality. It submits that the sign will have a detrimental effect on the amenity and visual quality of the rural landscape, that it will create or exacerbate visual clutter on the highway frontage, and that it is contrary to the Council’s intention to group business signage together on panel signs. For those reasons, the Council says that the proposed sign is contrary to objectives of the EPA Act, the aims of the WLEP and the objectives of the C3 zone, and fails to satisfy criteria 1, 2, 4 and 5 of Sch 5 of the SEPP IE.

The evidence and submissions in support of the Council’s position

52. The Council’s position is supported by the evidence of Mr Brian McDonald, who considers that the sign is in a location characterised by a rural landscape of grassland and scattered trees. He opines that this rural landscape character has cultural and aesthetic values that contribute to the experience of travellers in their journey along the Hume Highway. His evidence is that to protect this rural character, objects associated with the Service Centre should be prevented from ‘spilling out’ into the setting or along the roadway.

53. Mr Brian McDonald also points out that whilst there are site specific provisions for the permissibility of a highway service centre pursuant to the WLEP, the master plan contained in the CoePlan SEE shows that the proposed uses are confined to the southern portion of the site. His evidence is that the rural character of the northern part of the site will be retained over time, given that the northern part of the site that contains easements and culturally significant Aboriginal land that will remain undeveloped. His evidence is that views to this landscape will be degraded by a proliferation of signs along the access road to the Service Centre.

54. Mr Brian McDonald opines that if the proposed sign is approved, it will create a precedent for a future KFC sign and other signs, which will increase visual clutter along the approach to the service centre. Mr Brian McDonald contests that the definition of “clutter” from the Macquarie Dictionary should be adopted, and says that this definition is “would defeat the purpose of these planning provisions” by its “too literal interpretation” (Ex 3, p.42). The definition of clutter (Macquarie Dictionary) includes “to heap, litter, or strew in a disorderly manner” or “a disorderly heap or assemblage”. Mr Brian McDonald’s evidence is that the existing signs, together with the proposed sign, could not be considered to be an orderly arrangement.

55. The Council’s position is that the RLDCP seeks to limit signage, which is consistent with the panel signs already approved by the Council. As set out above, the RLDCP, at A6.17.3(e), the controls require that signs be assessed “as to their cumulative effect to avoid proliferation and visual confusion that would detract from the character of the rural landscape” and that “integrated signage on behalf of several businesses or properties may be suggested”. Mr Brian McDonald’s evidence is that, consistent with this provision, the approval of the multi-panel two stage McDonald’s sign and the multi panel Heatherbrae’s Pies sign signals the Council’s intention to group signs in one location. This is supported by a letter from the Council to APS in the assessment process for the Heatherbrae’s Pies sign, which states that “there is a need to control signage for the variety of intended uses, so as to avoid proliferation of signage but also to provide adequate exposure for future users” (Ex 2, p.117). He opines that the proposed sign is inconsistent with that desired intention.

56. The Council also relies on the NSW Transport Guidelines which concern the avoidance of visual clutter, at Section 2.4. They provide:

“2.4 Sign clutter controls

Advertising structures should not be placed in a location that will result in visual clutter. Clutter can be a distraction to drivers, particularly where other signage such as directional or road safety signs are located. Clutter can make a streetscape or landscape visually unattractive. The viewing rights of adjacent advertisers must also be considered when placing advertisements near existing signage.

What constitute, ‘clutter’, will differ depending on the location. For instance, in urban enterprise corridors and within entertainment districts, it is not uncommon to have multiple signs visible along a given sightline. When strategically placed, these signs can contribute to the urban fabric and promote city life in key areas. Clutter in this context may result however if there are too many signs or multiple messages placed on a single advertising site or location.

Multiple advertisement signs in rural or natural areas or along freeways or tollways adversely impacts on visual amenity and road safety. The overall number of signs placed along a transport corridor should be minimised preferably with only one advertising sign visible in a given view.

In assessing advertising proposals, the consent authority is to have regard to clutter:

a. Multiple advertisements on a single block of land, structure or building should be discouraged as they contribute to visual clutter.

b. Where there is advertising clutter, consideration should be given to reducing the overall number of individual advertisements on a site. Replacement of many small signs with a larger single sign is encouraged if the overall advertising display area is not increased.

c. In rural areas, and along freeways and tollways, no more than one advertising structure should be visible along a given sightline.”

57. The Council submits that the proposed sign is an additional structure that will create additional clutter along the highway, contrary to the NSW Transport Guidelines.

The applicant’s position that the proposed sign is acceptable

58. SLR’s position is instead that the proposed sign is consistent with the existing visual context, as well as with the future character of the area that benefits from the special permitted uses clause. SLR submits that the land on which the sign is proposed does not have any special ecological, scientific, cultural or aesthetic values, and the proposed sign will be consistent with the existing and likely future pattern of development in the area.

59. The position of SLR is supported by the evidence of Mr Stuart McDonald, who opines that the character that has evolved, by the grant of development consent, is to allow separate stand alone signs associated with separately located food and drink premises within the Service Centre. He considers that the proposed sign adopts that accepted approach, and will reflect what occurs in the existing landscape. His evidence is that this is in response to the land use pattern within the Service Centre, as well as what can be expected on the land in the circumstances of the site specific provisions.

60. SLR relies on the visual impact assessment carried out by Mr Stuart McDonald, which includes photomontages by Ms Pam Wells (Ex B). Mr Stuart McDonald’s evidence is that this visual impact assessment demonstrates that the sign will integrate with the surrounding built form and existing signage. When having regard to the photomontages in the visual impact assessment, Mr Stuart McDonald opines that the proposed sign sits within the context of the established and evolving built environment associated with the Service Centre, and is located to avoid any clutter or visual disorder by way of overlapping with other signage or signage structures. His evidence is that, to a viewer travelling in a vehicle southbound, “it is clear that the visual experience is one of business identification signage in the foreground to the upcoming food and drive premises and fuelling station that also constitute part of the service centre” (Ex 3, p.19). He opines that the proposed sign will not stand out or be visually disorderly in that context.

61. In relation to the question of what constitutes visual clutter, SLR submits that visual clutter must be assessed contextually, having regard to the existing visual environment, relying on the decisions of the Court in OOH! Media Assets Pty Ltd v Ballina Shire Council [2024] NSWLEC 1363 and Whitehall Property Services Pty Ltd v Randwick City Council [2021] NSWLEC 1762. SLR submits that in the context of the existing visual environment, the design and placement of the proposed sign have been informed by the pattern of existing development, and the sign will be read as part of a consistent signage typology associated with the highway service uses.

62. SLR also submits that the Council has departed from its stated intention of consolidating signage onto a single multi-panel sign by the two development consents that have been granted, and that, further, the use of these panel signs will not accommodate all food and drink premises intended for the Service Centre. This is acknowledged by the letter from TfNSW, which states, concerning the easement for signage (Ex 2, p.13):

“Council should satisfy itself that the easement proposed is of sufficient size to cater for other advertising signage should other users as per the approved master plan for the development of this site (Council Ref: LUA09/0518) wish to place signage adjacent to the Hume Highway”.

63. Further, SLR points out that placing the proposed business identification sign below the future McDonald’s sign is not an option, given that there is no guarantee of when and if McDonald’s will proceed to the stage 2 multi-panel sign, and the Council does not have the power to order McDonald’s to transition to the stage 2 sign. Further, the plan approved by the consent for the McDonald’s sign (Drawing PS10, Ex 2, p.99) provides for two further food outlets that are separate to that of the GYG premises and KFC premises, and that are intended for the multi-panel sign. In addition, the single panel available on the Heatherbrae’s Pies sign is not adequate to accommodate both the GYG premises and the KFC premises. SLR therefore submits that an additional sign will be required in any event.

64. In relation to the consistency with the objectives of the zone and of the WLEP, SLR relies on Abret Pty Ltd v Wingecarribee Shire Council (2011) LGERA 343; [2011] NSWCA 107 that the objectives of the zoning table “are not provisions of the LEP that control development” (at [42]), and submits similarly that there is no requirement for a development application to comply with the aims of the WLEP.

65. Finally, in relation to the issue of a precedent being created by the approval of the proposed sign, SLR submits that it is well-established that each development application must be considered on its own merits. SLR also submits that the precedent has been set by the approval of the two signs thus far, and a departure from this established approach within the Service Centre precinct would undermine both predictability and confidence in the consent process, contrary to orderly planning.

There is no adverse visual impact or unacceptable visual clutter

66. The visual impact of the proposed sign, and whether it results in visual clutter, must be considered in the context of its proposed location. When considering that context in the present circumstances, I find that there is no adverse visual impact or unacceptable visual clutter, and the proposed sign will sit appropriately within the existing setting that is characterised by signage for the Service Centre. I reach this conclusion for the following reasons.

67. Firstly, although the wider area might be characterised by a rural landscape setting that can be appreciated by those travelling along the Hume Highway, that is not the character of the Service Centre where the proposed sign is to be located. Instead, the character of the current Lot 101 and immediate surrounds is informed by the consents that have been granted, including for the Service Centre, the multiple food and drink premises, and the various signs alongside the access road. I accept the evidence of Mr Stuart McDonald that the character that has evolved is for separate stand alone signs associated with separately located premises within the Service Centre. This is not just limited to the Heatherbrae’s pies sign and the stage 1 McDonald’s sign, but also extends to the second McDonald’s sign and the two Shell service station signs further to the south west along the access road. These can be seen in Figures 8 and 9.

68. Whilst there may have been an intention, articulated through the Council’s letter dated 25 February 2015, for the signs to be consolidated on a single multi-panel sign, that intention has not been put into effect. Instead, multiple signs have been the subject of separate grants of development consent by the Council, and result in the pattern of signage that forms the current visual context. One of those signs, the McDonald’s stage 1 sign, was the result of an approval of a development application for a business identification sign (despite any suggestion to the contrary by Mr Brian McDonald). To require the consolidation of signs at this point in time is tantamount to closing the stable door after the horse has bolted. I accept the evidence of Mr Stuart McDonald that there is no mechanism to achieve the consolidation of business identification signage on a single structure, and, consistent with his evidence, I am not aware of any capacity to compel the carrying out of stage 2 of the development consent granted for the multi-panel McDonald’s sign.

69. Secondly, the proposed sign will sit appropriately within that existing character and setting, and will be read as part of a consistent signage typology associated with the Service Centre. In that regard, I accept the evidence of Mr Stuart McDonald that the proposed sign is entirely consistent with the existing pattern of development. It is within a context in which it is bookended by the Heatherbrae’s pies sign and the McDonald’s stage 1 sign at its northern end, and the Shell service station signs and the second McDonald’s sign at its southern end. This is clearly seen in the photomontages in Figures 10 and 11. 

70. I accept the evidence of Mr Stuart McDonald that, to a viewer travelling southbound on the Hume Highway, the visual experience is a line of business identification signage in the foreground to the various food and drink premises. The proposed sign fits neatly within that context, and, to further improve its consistency with the existing visual experience, SLR has proposed a condition of consent to reduce the overall height of the structure from 15m to 13.5m.

71. Thirdly, because of the proposed location of the proposed sign in the existing setting, I consider that it will not cause or exacerbate visual clutter. I accept the meaning of “clutter” ought to be understood in a manner consistent with the definition in the Macquarie Dictionary, being “to heap, litter, or strew in a disorderly manner” or “a disorderly heap or assemblage”. The proposed sign does not create or exacerbate a disorderly assemblage of signs. Instead, the existing assemblage is orderly, in a line adjacent to the access road and spaced sufficiently apart so that they separate as you approach them, and the proposed sign will fit within that orderly line. This is consistent with what is acknowledged in the NSW Transport Guidelines, that “what constitute[s] ‘clutter’, will differ depending on the location. For instance, in urban enterprise corridors… it is not uncommon to have multiple signs visible along a given sightline”. Although the Service Centre is not an urban enterprise corridor, the same principle applies, that in this context, multiple signs visible along the sightline as you travel along the highway adjacent to the Service Centre is not visual clutter.

72. Fourthly, I accept SLR’s submission and the evidence of Mr Stuart McDonald that the proposed sign is consistent with the desired future character of the area, which is informed by the site specific uses that are permitted pursuant to the WLEP and therefore anticipated for the Service Centre. The desired future character is also informed by the development consents that have been granted, including for the KFC and GYG premises and the existing Heatherbrae Pie’s and McDonald’s signs. The proposed sign will be compatible with the pattern of development and built form that currently exists and can be reasonably anticipated in the Service Centre as a whole.

73. For those reasons, I consider that the proposed sign satisfies the requirements of the assessment criteria in Sch 5 of the SEPP IE. The proposed sign is compatible with the existing character of the Service Centre area, is consistent with the existing signage along the access road, does not detract from the visual quality of any rural landscape or environmentally sensitive area, and its scale, proportion and form is appropriate for the setting and compatible with the other signage along the access road. The requirements of assessment criteria 1, 2, 4 and 5 in Sch 5 of the SEPP IE, which were raised by the Council in its Statement of Facts and Contentions, are therefore satisfied. The third question within criterion 4 does not arise as the proposed sign does not relate to existing advertising, is a single sign that is clearly separated from other signs, and fits within the existing visual character of the streetscape along the access road without creating clutter.

74. Similarly, for the reasons expressed above, I find that the requirements of the RLDCP controls identified by the Council in its Statement of Facts and Contentions are satisfied. In the context of where it is proposed to be located, the proposed sign is compatible with the visual character of the area and will not affect the amenity of the area, consistent with objectives (a) and (d) of Section A6.17.2. I have above considered the cumulative effect of both the existing signs and the proposed sign, and find that they form a pattern of development consistent with the existing and intended character of the Service Centre, which will not detract from the rural landscape setting that is beyond the Service Centre. This is consistent with control (e) of Section A6.17.3 of the RLDCP. The proposed sign relates to the property on which it is placed, being within Lot 101 and the Service Centre precinct to the east of the Hume Highway, and therefore does not offend Section A6.17.3(i)(i).

75. Further, in relation to the issue of a precedent being created by the approval of the proposed sign, I accept the submission made by SLR that each development application must be considered on its own merits. Any future sign that is proposed along the access road entry to the Service Centre would need to be considered in its context, on the basis of the design proposed, and against the relevant matters in the RLDCP and the SEPP IE.

76. Finally, there is no general requirement for an applicant for development consent to demonstrate consistency with the zone objectives, the aims of the WLEP or the objects of the EPA Act. Contrary to the Council’s position, there is no requirement for SLR to demonstrate that the proposed sign is required for the orderly and economic use of land. None of the zone objectives, the aims of the WLEP or the objects of the EPA Act are provisions that control development or contain criteria for development assessment. In any event, I have found that the proposed sign is appropriate in its visual setting, does not have an adverse visual impact and will be read as part of a consistent signage typology associated with the Service Centre. The proposed sign therefore does not have any unacceptable impact that would cause it to be antipathetic to the zone objectives, the aims of the WLEP or the aims of the EPA Act.

Development consent should be granted

77. For the above reasons, none of the matters raised by the Council in its Statement of Facts and Contentions warrant refusal of the development application. The proposed sign is a business identification sign that is appropriate in its visual setting and does not have an adverse visual impact. It satisfies the assessment criteria in Sch 5 of the SEPP IE and is consistent with the requirements of the RLDCP.

78. In addition, there is no jurisdictional matter raised by either party that would preclude the grant of development consent. The development application was accompanied by owners’ consent, has been notified and no submissions were received. The relevant provisions of the SEPP IE have been satisfied. Accordingly, development consent should be granted, subject to the agreed conditions of consent. However, the conditions of consent that are sought by the Council that relate to an advertising structure, concerning the duration of the consent and the provision of a material public benefit, need not be imposed.

Final orders

79. The Court orders that:

1. The appeal is upheld.

2. The development application (23/0540) for the construction of a business identification sign (pylon sign) at 1/61 Sallys Corner Road, Exeter, is determined by the grant of consent subject to the conditions in Annexure A.

3. Exhibit 2 is returned, and the remaining exhibits are retained.

J Gray

Commissioner of the Court

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Annexure A (192 KB, pdf)

Amendments

06 June 2025 - Amend image formatting

Decision last updated: 06 June 2025