Sports and Outdoor Media Pty Ltd v Goulburn Mulwaree Council
[2007] NSWLEC 207
•5 April 2007
Land and Environment Court
of New South Wales
CITATION: Sports and Outdoor Media Pty Ltd v Goulburn Mulwaree Council [2007] NSWLEC 207 PARTIES: APPLICANT
RESPONDENT
Sports and Outdoor Media Pty Ltd
Goulburn Mulwaree CouncilFILE NUMBER(S): 11043, 11044, 11045 of 2006 CORAM: Hoffman C KEY ISSUES: Section 96 Application :- advertising structures and advertising sign, permissibility in zone 1(a) General Rural, content of signs, impact on the character of rural scenery, proximity to a road boundary, comments by authorities LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Rivers and Foreshores Act
State Environmental Planning Policy No. 1
State Environmental Planning Policy No. 64
Mulwaree Local Environmental Plan 1995DATES OF HEARING: 28/2/2007 and 21/03/2007 and 05/04/2007 EX TEMPORE JUDGMENT DATE: 5 April 2007 LEGAL REPRESENTATIVES: APPLICANT
Ms S. Duggan, barrister
instructed by Mr P. Vergotis
of Cutler, Hughes and HarrisRESPONDENT
Ms S. Hill, solicitor
of Susan Hill and Associates
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
5 April 2007
JUDGMENT11043 of 2006 Sports and Outdoor Media Pty Ltd v
11044 of 2006 Goulburn Mulwaree Council
11045 of 2006
1 This is three Class 1 appeals, Nos 11043, 11044 and 11045 of 2006 between Sports and Outdoor Media Pty Limited v Goulburn Mulwaree Council in regard to the refusal of consent for three advertising structures and signs at Lots 43 DP786121 being No. 7082 Federal Highway, Currawang, Lot 101 DP8193931 No. 1750 Hume Highway, Towrang and Lot 38 portion 124 DP750057 being No. 19897 Hume Highway, Yarra.
2 The parties came to the hearing initially seeking time to consider amended drawings and details, revised site plans and to negotiate potential consent orders. After an adjournment the parties came with Consent Orders in Exhibits A, B and C.
3 The issues had been the same for each matter as in Exhibit 4:
A. PRELIMINARY POINTS OF LAW FOR DETERMINATION
1. Whether the proposed development is a prohibited use in the No. 1(a) (General Rural) Zone pursuant to Mulwaree Local Environmental Plan 1995 ("LEP").
PARTICULARS
1.2 Advertising structures are not identified in the LEP as either being permissible without development consent or prohibited and therefore may be erected with development consent except as otherwise provided by the LEP.
1.3 Clause 6 of the LEP adopts, by reference, the Environmental Planning & Assessment Model Provisions 1980 ("Model Provisions").
1.4 In accordance with the Environmental Planning & Assessment Amendment (Infrastructure & Other Planning Reform) Act 2005 the Model Provisions continue to apply to existing planning instruments that adopt the Model Provisions.
1.5 The advertising structure, the subject of the appeal, is not advertising of the kind permitted by subclause 33(1) of the Model Provisions.
1.6 The advertising structure, the subject of the appeal, is not advertising of the kind permitted by subclause 33(2)(b) of the, Model Provisions.
2 . Further, and in the alternative, whether the proposed development is a prohibited use pursuant to the provisions of State Environmental Planning Policy 64 - Advertising & Signage ("SEPP 64").
2.1 SEPP64 applies to this development application.
2.2 Pursuant to subclause 15(2)(b) of SEPP 64, a consent authority must not grant consent to display an advertisement on rural land unless advertisements meet the requirements of clause 33 of the Model Provisions.
2.3 The advertising structure, the subject of the appeal, is not advertising of the kind permitted by subclause 33(1) of the Model Provisions.
2.4 The advertising structure, the subject of the appeal, is not advertising of the kind permitted by subclause 33(2)(b) of the Model Provisions.
2.5 The provisions of clause 33 of the Model Provisions operate as a prohibition and not a development standard.
B MERIT ISSUES
3 In the event that the preliminary questions are determined on the basis that the relevant provisions do not operate as prohibitions, whether the proposed development constitutes a notice directing the travelling public to tourist facilities or activities or to places of scientific, historical or scenic interest as required by clause 15(2)(b) of SEPP 64 and clause 33(2)(b) of the Model Provisions.
- PARTICULARS
4 Whether the proposed development is appropriate in terms of the effectiveness of promoting Goulburn as a "place of scientific, historical or scenic interest".
- PARTICULARS
4.2 The advertising structure, the subject of the appeal, is to be erected on
the opposite side of the highway to motorist approaching Goulburn.
4.3 The portion of the advertising structure promoting Goulburn as a "place of scientific, historical or scenic interest" represents only 20 (approximately) of the display area.
5. Whether the proposed development is appropriate in terms of visual impact upon the rural landscape.
- PARTICULARS
5.2 The assessment criteria in Schedule 1 of SEPP 64 set out a number of specific considerations for the Council to evaluate in determining an application to erect advertising structures.
5.3 The advertising structure, the subject of the appeal, is inconsistent with Schedule 1 of SEPP 64 in that:
- (a) The proposal detracts from the amenity or visual quality of the open space area and rural landscape.
(b) The scale, proportion and form of the proposal are inappropriate for the setting or landscape.
(c) The proposal does not reduce clutter by rationalising and simplifying existing advertising.
(d) The proposal reduces the safety for the public road.
- PARTICULARS
7. Whether the proposed development satisfies the assessment criteria in Schedule 1 to SEPP 64.
- PARTICULARS
8 Whether the proposed development is appropriate in terms of the LEP variation sought in accordance with State Environmental Planning Policy No 1 ("SEPP 1").
- PARTICULARS
8.2 The advertising structure, the subject of the appeal, will be erected "in close proximity to the road, within 50 metres of the property boundary".
8.3 The LEP variation is considered to be unreasonable and / or unnecessary in this particular case given that:
(a) The advertising structure will compromise the objective of the development ' standard, That is, to reduce clutter along road frontages and promote a rural setting by creating a sense of open space,
(b) The scale, proportion and form of the proposal are inappropriate for the setting or landscape,
- PARTICULARS
9.2 RTA comments have been sought with respect to the advertising structure, The submissions contained a general warning that advertising signs "are likely to compromise road safety".
4 The proposals had been publicly exhibited and there were no objectors. The proposal had been notified to the relevant authorities. The Roads and Traffic Authority had required that any signs should be in conformity with State Environmental Planning Policy No. 64 advertising and signage and that the Roads and Traffic Authority had the impression the applicable Local Environmental Plan of the former Mulwaree Shire had prohibited such signs beside highways and that signs may compromise road safety.
5 The respondent put that the currently applicable Mulwaree Local Environmental Plan 1995 for the zone No. 1(a), General Rural, applied to all three applications and allowed the signs with consent as an innominate use. But, cl 38 of the statute did not allow structures within 50 m of a road boundary in that zone.
6 The applicant had submitted objections under State Environmental Planning Policy No. 1 to enable the signs to be erected just inside the road boundary of each property. The respondent supported the State Environmental Planning Policy No. 1 objections in each case.
7 I have read the objections for each application in Exhibit 4, tabs C, D and E. Each assesses the location of the related sign and its surroundings in conjunction with the objectives of the zone.
8 As the standard itself does not contain any stated objectives it is necessary to refer to the objectives of the zone. They are:
- “The objectives of this zone are to promote the proper management and utilisation of resources by,
- (a) Promoting, enhancing and conserving,
(i) Agricultural land, particularly prime crop and pastureland in a manner which sustains its efficient and effective agricultural production potential.
(ii) Soil stability by controlling and relocating development in accordance with soil capability as identified by the Department of Conservation and Land Management.
(iii) Forests of existing and potential commercial value for timber production.
(iv) Valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits.
(v) Trees and other vegetation in sensitive areas and in any place where the conservation of the vegetation is significant to the protection of scenic amenity or natural wildlife habitat or is likely to control or contribute to the control of land degradation.
(vi) Water resources and water catchment areas for use in the public interest,
(viii) Places and buildings of archaeological or heritage significance, including Aboriginal relics and places.(vii) Localities of significance for nature conservation, including localities with rare plants, wetlands, permanent watercourses and significant wildlife habitat.
- (b) Minimising the costs to the community of,
(ii) Providing and extending and maintaining public amenities and services.(i) Fragmented and isolated development of rural land.
- (c) Providing land for future urban development for rural residential development and for development for other non-agricultural purposes in accordance with the need for that development and subject to the capability to the land and its importance in terms of the other objections of this zone.”
9 It can be seen there is no direct conflict between the signs and the objectives.
10 I agree with the submitted SEPP 1 objections in each case and its reasons that compliance with the standard is unreasonable and unnecessary in these particular cases.
11 The content of the signs complies with State Environmental Planning Policy No. 64 definition that arises from the Model Provisions cl 33(2)(b) in that the signs direct travelling public to tourist facilities.
12 The council officers’ reports have assessed each sign in accordance with sch 1 of State Environmental Planning Policy No. 64 and the State Environmental Planning Policy No. 1 objections largely assess the same criteria.
13 The council reports conclude that each development is satisfactory on items 1 to 6 and item 8 of sch 1.
14 Item 7 deals with the illumination of the signs and the parties have agreed no illumination will be provided and a condition is inserted in each consent order.
15 Each consent is limited to 15 years from the date of any approval, not the date of any commencement of the use. This is in accordance with SEPP 64 and upon expiry any structure is to be demolished.
16 The council officers’ report advise that there are watercourses in each subject property but the location of the sign in each related to the watercourse is not shown on plan. The parties have agreed on a condition that at the time of preparation of construction drawings a survey will be needed and when the exact distance of the sign from any watercourse is known, if it is within 40 m, then a s 96 amendment application will need to be considered and, if needed, a pt 3(a) permit sought under the Rivers and Foreshores Act from the Department of Natural Resources.
17 The council and the applicant have agreed on community event signage to be incorporated on each sign as well as the tourist facility signage.
18 The community signs will be changed at council’s request and cost when required.
19 Overall, I have considered the reports tendered and have concluded that there is nothing sufficient for refusal of all or any of the three signs in these particular cases.
20 Therefore, the Orders of the Court by consent of the parties, are
1. Appeal Nos. 11043 –11044 -11045 of 2006 are upheld.
2. Development consent is granted to DA No.476/0506 for the erection of a freestanding pylon advertising structure and signage at Lot 43 DP786121 (No.7082) Federal Highway, Currawang subject to the conditions in Annexure A hereto.
3. Development consent is granted to DA No. 444/0506 for the erection of a freestanding pylon advertising structure and signage at Lot 101 DP8193931 (No.1750) Hume highway, Towrang subject to the conditions in Annexure B hereto.
5. The exhibits are returned to the parties except Exhibits 1, 2, 3 and 4 tabs A & B, and Exhibits A, B and C.4. Development Consent is granted to DA No. 445/0506 for the erection of a freestanding pylon advertising structure and signage at Lot 38 Pt 124 DP750057 (No.19897) Hume Highway, Yarra subject to the conditions in Annexure C hereto.
The Court notes the agreement of the parties on each to pay its own costs.
___________________
- K G Hoffman
Commissioner of the Court
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