Studio 88 Pty Limited v Wollongong City Council
[2004] NSWLEC 62
•03/04/2004
Land and Environment Court
of New South Wales
CITATION: Studio 88 Pty Limited v Wollongong City Council [2004] NSWLEC 62 PARTIES: APPLICANT
RESPONDENT
Studio 88 Pty Limited
Wollongong City Council
.FILE NUMBER(S): 11576 of 2003 CORAM: Moore C KEY ISSUES: Development Application :-
Size of signage structure
Future character of area or locality
.LEGISLATION CITED: State Environmental Planning Policy 64 - Advertising and Signage
City of Wollongong Local Environmental Plan 1990
.CASES CITED: Manzie v Willoughby City Council 96 LEC 26;
Newbury District Council v Secretary of State for the Environment ;
(1980) 1 All E R 73;
.DATES OF HEARING: 24 February 2004 DATE OF JUDGMENT: 03/04/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr T Franks, agent
Mr M Mantei, solicitor
Kells the Lawyers
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11576 of 2003
Moore C
4 March 2004
Studio 88 Pty Limited
Applicant
v
Respondent
Introduction
1 Although the matter was originally scheduled to be an on-site hearing, because of the range of issues involved arising out of State Environmental Planning Policy 64, Advertising and Signage ("SEPP 64"), I indicated to the parties at the conclusion of the on-site hearing on 24 February 2004 that the appeal should be dismissed. Although I also outlined the nature of the formal orders that I proposed to make, I indicated that I proposed to reserve provision of my reasons for decision in order to give more considered reasons dealing with the matters arising out of the provisions of SEPP 64.
2 The appeal is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 against the refusal by Wollongong City Council (“the council”), on 9 December 2003, of Development Application D1874/03 for the direction of a sign structure at premises at 89 Princes Highway, Fairy Meadow ("the site"). The site is Lot B DP396632.
3 Presently erected on the site is retail premises occupied by Clark Rubber and there is a single signage structure on a brick plinth at the centre of the road frontage of the allotment approximately at the allotment boundary and at right angles to it.
4 The application proposes that a substantial additional sign be permitted along the northern boundary of the allotment at right angles to the Princes Highway. This sign is proposed to be elevated ~ 1.8 m above the ground and the display area be ~ 7.3 m in length and ~ 2.4 m in height.
5 During the course of hearing, the applicant sought and was granted leave, by consent, to amend the application to include a 3.6 m setback from the front boundary of the allotment and acceptance of a condition that the northern face of the display area be painted a single neutral colour and not be permitted to be used as a sign. I proceeded to determine the appeal on the basis of application as thus amended.
6 The application is for the erection of the signage structure and does not encompass any application for the display of any sign on the structure. Indeed, the applicant agreed to accept a condition that any material to be displayed was required to be the subject of a separate application and that further application would be necessary each time the material displayed was proposed to be changed.
The issues
7 Although the council filed a formal statement of issues in the proceedings, the issues which fell to be determined essentially were, as a consequence of the size of the proposed signage structure, that:
- it was too large; and
- as a consequence, when assessed against cl 3(1)(a)(i) and schedule 1 of SEPP 64, it was unable to satisfy the relevant tests.
Applicable planning controls
8 In the ordinary course of events, the relevant planning controls would be those derived from the City of Wollongong Local Environmental Plan 1990 ("the LEP"). However, because of the facultative and overriding provisions of SEPP 64, the provisions of the LEP and any other local controls are overridden and the only provisions which require compliance in the present appeal are those of SEPP 64.
9 However, to the extent that the LEP can provide guidance in establishing, for assessment purposes under SEPP 64, what would be the present or desired future character of the area or locality, the provisions of the LEP are relevant.
10 The site is zoned 4(a) Light Industrial Zone. The objectives of the zone, as set out in the LEP, are:
(b) to allow some diversity of activities which will not prejudice the objectives referred to in paragraph (a) from being achieved or significantly detract from the operation of existing or proposed manufacturing and service industries or the amenity of nearby residents.(a) to cater for a wide range of manufacturing and service activities which will not interfere with the amenity of nearby residents; and
Evidence
11 Evidence was given on behalf of the council by Ms A Trezises, a Senior Development Project Officer employed by the council, and by Mr T Franks on behalf of the applicant. Mr Franks is a principal of the applicant and appeared on its behalf as well as giving evidence in the proceedings.
SEPP 64
12 The definitions in SEPP 64 clearly establish that, even if no consent is sought for the content of any sign proposed to be erected on the structure such as that which is the subject of the present appeal, such structures are subject to the provisions of SEPP 64.
13 SEPP 64 contains a number of objectives for signs or structures covered by it. In the present proceedings, the relevant provision is contained in
3 Aims, objectives etc
(1) This Policy aims:
(a) to ensure that signage (including advertising):
(i) is compatible with the desired amenity and visual character of an area,
14 The detailed range of assessment criteria are contained in schedule 1 to SEPP 64. Those which are relevant in present proceedings are:
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?
2 Special areas• …….
3 Views and vistas• …….
4 Streetscape, setting or landscape
• …….
• Does the proposal respect the viewing rights of other advertisers?• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?
• …….
• Does the proposal reduce clutter by rationalising and simplifying existing advertising?
The 2002 consent
15 The applicant has the benefit of an existing development consent D02/1155. The size and layout of the premises presently occupied by Clark Rubber on the site come about as a result of this consent.
16 Along the northern boundary of the site at the Princes Highway frontage, as depicted on the site and floor plan element of the approved plan for this consent, is marked a structure noted as "proposed billboard by others not part of this lease". There are no further details of this proposed structure in any of the elevation or section drawings.
17 Mr Franks put to me th that the structure proposed in the present application had, in fact, been approved by virtue of the notation discussed above.
18 I explained to Mr Franks the difference between proceedings in class 1 and class 4 of the Court’s jurisdiction. I indicated that I did not propose to enter into a debate as to what may or may not have been approved as a consequence of Development Consent D02/1155. I indicated that, should I uphold the present appeal, that issue would be irrelevant and that, should the present appeal not succeed, the applicant would then be in a position to seek appropriate professional advice concerning the earlier consent.
Assessment of the present proposal
19 As Mr Franks, representing the applicant, was a lay agent, I afforded him the leeway usually provided to applicants in person. During the course of his evidence, he tendered photographs of a number of signs located on or in close proximity to buildings fronting the Princes Highway across a distance up to 2.5 kilometres to the north. He also drew attention to:
- a substantial new development comprising a four-storey-building to be constructed on the presently somewhat run down site immediately adjacent to the south of the subject site;
- signage consented to as part of a motor dealer development on the north western corner at the roundabout of the feeder road to the expressway; and
- the substantial signage structures permitted in the newly developed area opposite this roundabout on its eastern side.
20 The issue of the proposal impacting unacceptably on the viewing rights of other advertisers disappeared as a result of the amendment to set the structure back 3.6 m from the front boundary of the site.
21 As a consequence, the three matters which effectively remained to be dealt with were:
- compatibility with the existing or desired future character of the area or locality;
- the appropriateness or otherwise of the scale and proportionality of the proposed structure in its streetscape; and
- whether the proposal reduces clutter by rationalising and simplifying existing advertising.
22 These arise because cl 8 of SEPP 64 requires that proposed signage, including signage structures, be assessed against the objectives of SEPP 64 and the assessment criteria are contained in schedule 1 of SEPP 64.
23 In the context of the present application, the first of these matters arises from cl 3(1)(a)(i) and from element 1 of schedule 1 of SEPP 64. There were significant differences between the parties as to how this matter should be addressed as there was no agreement between them as to what was the appropriate geographic scope for this assessment. The evidence of Ms Trezises was that the visual catchment comprised of the block, on the western side of the Princes Highway at Fairy Meadow, within which the site is located. Mr Franks, on the other hand, submitted that the geographic scope should encompass a more expansive interpretation extending up to several kilometres to the north and to and including the redeveloped area adjacent to the expressway feeder road roundabout to the south. The objectives for the zone, in the LEP, as set out earlier, provide no assistance in this regard.
24 It is reasonable to conclude that the use of the word area, alone, in cl 3(1)(a)(i) compared to the use of the words area or locality in element 1 of schedule 1 means that SEPP 64 intends there to be a distinction between the area and the locality for the purposes of assessment against the present and desired future character within which the site of the proposal is located.
25 Taking this approach, I am satisfied that Ms Trezises correctly identifies the locality within which the site should be assessed but that, on the other hand, Mr Franks has correctly identified the area against which the proposal should be tested as I consider that the word area, in this context, is more expansive than the word locality.
26 During the course of the hearing, I adjourned on several occasions to enable discussions to take place between the parties. With the consent of the parties, whilst these discussions were taking place, I walked or drove to inspect the signs and signage structures to the north and south of the site about which Ms Trezises gave evidence and submissions were made and/or photographic evidence had been tendered by Mr Franks.
27 It is clear that the block within which the site is located is one which is presently undergoing considerable transition as evidenced by the proposed major redevelopment on the large site immediately to the south. Given the significant redevelopment taking place somewhat further to the south, there is also a real possibility that it would be further redevelopment taking place in the foreseeable future between this immediately adjacent redevelopment and the revitalised area in the vicinity of the expressway feeder road roundabout. As a consequence of this, there is little assistance which can be obtained from attempting an assessment of the existing character of this block.
28 An assessment of the desired future character, as a consequence, involves an assessment of a significantly larger geographic scope than the immediate visual catchment of the site. In this regard, I broadly accept Mr Franks's evidence as to the geographic extent against which I should test the proposal. It is clear that, within this larger geographic scope, there are a number of signs on building walls and signs structures which are of significant dimension although, perhaps, only one appeared to be of or close to the size proposed in this application. All the others are somewhat smaller and generally have a proportionality where the height of the signs appeared to be approximately half of its width.
29 As a consequence, I am satisfied that signs which are significantly larger than those immediately in the vicinity are compatible with the desired future character of the area within which the site is located. However, it seems to me that the present proposal is out of scale, being too large, to fit, comfortably and conformably, within this desired future character. I have reached this conclusion based on a consideration of dimensions of the larger signs of which evidence has been given by Mr Franks. This also means that the present proposal does not satisfy the first element of 4 of schedule 1 of SEPP 64.
30 The site presently has, as noted earlier, an existing advertising signage structure located in the centre of the frontage of the site. Although somewhat taller than the present proposal, it is, overall, more modestly dimensioned. It was put on behalf of the council that, as this structure was not proposed to be removed, the third element of 4 of schedule 1 could not be satisfied as there was no rationalisation or simplification of existing advertising. Whilst this is strictly correct, I am satisfied that it must be established that clutter, in the first instance, in fact exists on or in the immediate vicinity of the site before the issues of rationalisation or simplification arise. In the present instance, I had no evidence on signage immediately to the south as signage for this site was not included in the consent for its redevelopment and was to be subject to further future applications. The signage on the building immediately to the north was not extensive and, in my assessment, did not, when added to the existing signage on the site, constitute cluttering in the immediate streetscape. As a consequence, I do not consider that the present application fails this element of schedule 1.
An acceptable proposal
31 As a result of these conclusions, I have considered whether I should provide comments which might assist the parties in further discussions should I conclude that the appeal should otherwise be dismissed. Such commentary, of course, in no way binds the Court in its consideration of any application in subsequent proceedings involving the same site and essentially the same issues if negotiations are unable to resolve the outstanding issues: see Manzie v Willoughby City Council 96 LEC 26.
32 I have concluded that would be appropriate to do so.
33 Ms Trezises's evidence was that, in her opinion, a sign structure of ~ 2.2 m in height with a width of ~ 3.6 m at the height presently proposed above the ground would be acceptable. Construction of this structure would be conditioned so that:
- the northern face would be painted in a neutral colour;
- the sign structure would not be illuminated; and
- a separate application would be required for the first signage and any subsequent changes in signage thereafter.
34 With respect to the size of the structure, the larger signage about which Mr Franks gave evidence showed that that signage evidenced a desirable proportionality for such structures so that the height should be approximately half the width. I am satisfied, with respect of the present application, that appropriate dimensions, having regard to the other range of larger single faced signs within the area, would permit erection of sign structure of ~ 2.25 m in height with a width of ~ 4.5 m at the height presently proposed above the ground. I am satisfied that the conditions proposed by Ms Trezises would be appropriate.
35 However, I would add two further conditions to establish an appropriate regime for the structure.
36 The first additional condition would be to require structure could only be used for a single sign, although its contents may vary from time to time, rather than the possibility of multiple signs as envisaged by the applicant.
37 The second additional condition would be to require the cleaning up and repainting of the brick plinth of the existing signage structure at the centre of the frontage of the site. I am satisfied that the imposition of such a condition would meet the three appropriate tests for a valid imposition of a condition in proceedings such as these: see Newbury District Council v Secretary of State for the Environment (1980) 1 All E R 731.
Conclusion
38 For the reasons discussed above, I am satisfied that the proposed sign, even with its modified setback from the street frontage, is simply too large when tested against the requirements of cl 3(1)(a)(i) and schedule 1 of SEPP 64. For this reason, the appeal cannot succeed.
Orders
39 As a consequence, the orders of the Court are:
- The appeal is dismissed;
- Development application D1874/03 for the erection of a sign structure at premises at 89 Princes Highway, Fairy Meadow, being Lot B DP396632 is determined by the refusal of development consent; and
- The exhibits, other Exhibit 1, may be returned.
Commissioner of the Court
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