TPG Telecom Limited (formerly Vodafone Hutchison Australia Pty Limited) v North Sydney Council

[2021] NSWLEC 1360

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

TPG Telecom Limited (formerly Vodafone Hutchison Australia Pty Limited) v North Sydney Council [2021] NSWLEC 1360

Hearing dates:

8-9 March 2021

Date of orders:

30 June 2021

Decision date:

30 June 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent for Development Application No. DA 16/20 for the illumination of existing rooftop sign on western elevation of the building is approved subject to the conditions set out in Annexure A.

(3) The exhibits are returned except for A, E and 2.

Catchwords:

DEVELOPMENT APPLICATION – illumination of existing rooftop sign on western elevation of the building – whether the proposed development is compatible with the existing and desired amenity and visual character of the area – whether the proposed development is unacceptable because of the impact of illuminating the existing sign

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

North Sydney Local Environmental Plan 2013, cll 2.3, 4.3, 6.1, 6.2

State Environmental Planning Policy No 64—Advertising and Signage, cll 3, 8, Sch 1

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

TPG Telecom Limited (formerly Vodafone Hutchison Australia Pty Limited) (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
J Merlino (Solicitor) (Respondent)

Solicitors:
Allens (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/210569

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) against the determination of the North Sydney Council to refuse development consent to Development Application No. DA 16/20 for the illumination of the existing roof top signage on the western elevation of a commercial building at 177 Pacific Highway, North Sydney (the site).

2. The signage proposed to be illuminated comprises the word “Vodafone” and the word “Vodafone” also represents the name of a tenant of the building on which the sign sits.

3. It is accepted that the signage, whether illuminated or not (Tcpt, 8 March 2021, p 30(10-15)) is a “building identification sign” as defined in the North Sydney Local Environmental Plan 2013 (NSLEP), namely:

building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services.

Note—

Building identification signs are a type of signage—see the definition of that term in this Dictionary.

4. According to the agreed facts, on 2 May 2016, the Council granted a conditional approval for the installation of six (6) illuminated building identification signs at roof and podium level of the building on the site allowing all signs - other than the western roof sign - to be illuminated.

5. Five of the approved signs have been installed. The southern roof sign was not installed.

6. On 22 January 2020, the applicant applied to the Council for development consent to illuminate the western sign. The application was notified on 7 February 2020 and 8 submissions were received raising concerns about the proliferation of signage and the impacts of the illumination of the sign on the amenity and character of the area.

7. On 31 March 2020, the application was determined under delegation by Council’s Manger Development Services and on 1 April 2020, the applicant was notified that the application had been refused consent.

8. The applicant filed this Class 1 appeal on 17 July 2020.

The proposal

9. The sign comprises the Vodafone logo and eight individual letters, each consisting of a metal box with translucent face. It is presently attached to walls on the upper level of the building in the mechanical plant area and set back 5 m from the main curtain walls on the facades below. A dark-tinted glass balustrade is formed by the vertical continuation of the glass facades on the three sides of the building currently hosting the roof signs.

10. The proposed sign is identical in design to the two existing illuminated signs on the northern and eastern elevations of the building on the site, and as installed is equipped with the required lighting equipment. The proposal is to illuminate the western sign in the same manner as the existing illuminated signs on the building. The signage will not flash and there will be no illumination after the hour of 1:00am.

The site

11. The site is located on the western side of the Pacific Highway, at the intersection with Berry Street. It has frontages to the Pacific Highway and Berry Street and runs along the western boundary of the North Sydney CBD.

12. The site is zoned B3 Commercial Core under the provisions of the NSLEP. Development for the purposes of signage is permissible with consent.

13. The Land Use Table is set out below:

Zone B3 Commercial Core

1 Objectives of zone

• To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

• To encourage appropriate employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To prohibit further residential development in the core of the North Sydney Centre.

• To minimise the adverse effects of development on residents and occupiers of existing and new development.

2 Permitted without consent

Nil

3 Permitted with consent

Amusement centres; Backpackers’ accommodation; Centre-based child care facilities; Commercial premises; Community facilities; Educational establishments; Entertainment facilities; Function centres; Hotel or motel accommodation; Information and education facilities; Medical centres; Oyster aquaculture; Passenger transport facilities; Places of public worship; Recreation areas; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Roads; Sex services premises; Signage; Tank-based aquaculture; Vehicle repair stations; Veterinary hospitals

4 Prohibited

Pond-based aquaculture; Any other development not specified in item 2 or 3

14. The B3 zone objectives are to provide a wide range of retail, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community, to encourage employment opportunities in accessible locations, encourage public transport, prohibit further residential development in the core and minimise the adverse effects on residents and occupiers of existing and new development.

15. Clause 6.1 of the NSLEP is also relevant to my assessment of this application. It provides as follows:

6.1 Objectives of Division

The objectives of this Division are as follows—

(a) to maintain the status of the North Sydney Centre as a major commercial centre,

(b) to maximise commercial floor space capacity and employment growth within the constraints of the environmental context of the North Sydney Centre,

(c), (d) (Repealed)

(e) to encourage the provision of high-grade commercial space with a floor plate, where appropriate, of at least 1,000 square metres,

(f) (Repealed)

(g) to prevent any net increase in overshadowing during winter months of any land in Zone RE1 Public Recreation (other than Brett Whiteley Plaza) or any land identified as “Special Area” on the North Sydney Centre Map,

(h) to ensure that any land within a residential zone is afforded a reasonable amount of solar access,

(i) to maintain areas of open space on private land and promote the preservation of existing setbacks and landscaped areas, and to protect the amenity of those areas.

This clause sets out specific objectives for the North Sydney Centre where the site is located. Objective (a) seeks to maintain the status of the North Sydney Centre as a major commercial centre, and relevant to any surrounding residential area, the only provision now is subcl (h) of cl 6.1 which seeks to ensure that “any land within a residential zone is afforded a reasonable amount of solar access”. Subclause (f) of cl 6.1 which had sought to protect the amenity of residential zones and existing open space and was a basis of the refusal of the illumination of the sign at issue has since been expressly repealed under the current version of the LEP before the Court.

16. It is necessary to appreciate at the outset of this judgment that while I must consider the zone objectives of the B3 zone as required by cl 2.3 – which includes an objective to protect the amenity of the existing residents, by operation of cl 6.2 – the provisions in Part 6 of the NSLEP dealing with the North Sydney Centre prevail to the extent of inconsistency over any other provision of the Plan.

17. In other words, the focus of the prevailing controls is on maintaining the status of the Centre as a major commercial centre and the other objectives in cl 6.1 and rather than protect the residential zones around the Centre except to ensure that any land within a residential zone is afforded a reasonable amount of solar access (cl 6.1(h)).

18. As such, these provisions of the NSLEP necessarily inform my assessment of the existing and desired character of the area for the purposes of the consideration called up by Sch 1 of State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64) and my assessment under s 4.15 of the EPA Act. This commercial character focus is supported by the area character statements in Part 2 the North Sydney Development Control Plan 2013 (NSDCP) for the North Sydney Planning Area and the Central Business District. The location of the site is described as “an iconic attractive sustainable area with the focus on the CBD which is identified as … a global commercial centre”. An area of the North Sydney CBD where the desired future character is said “… to be enhanced by preventing any further residential development from occurring in its core (ie the B3 – Commercial Core zone)” (NSDCP, Part C, Section 2.1.2 “Desired Future Character”, P4).

19. In assessing the application under s 4.15(1), the relevant parts of the NSDCP must be accorded appropriate weight. They are to be read in conjunction with SEPP 64 (Section 9.1.4 of the NSDCP) and the NSLEP (with the operative provisions in Pt 6 of the NSLEP (cl 6.2 of the LEP) prevailing to the extent of any inconsistency). The Council’s heavy emphasis on the general objectives in Section 9 of the NSDCP – ensuring signs do not detract from significant views, vistas and streetscapes, or complementing the architectural style does not really arise where the application only relates to illumination and not the design of the sign. To be plain, I do not accept the Council’s submission that because the display of the sign will be illuminated at night that the proposal is for a new sign and therefore needs to be assessed as a new development (Tcpt, 8 March 2021, p 38(25-50)).

20. There are no structural works or plans before the Court for signage. I am assessing a proposal for the illumination of the approved existing signage structure located within the existing building mass at a site in the North Sydney CBD.

21. To better understand the impacts of the proposed illumination and the evidence, the Court conducted a night view at the commencement of the hearing. At that time, consistent with the area character statement for the North Sydney CBD, I observed the site is surrounded by commercial development of varying eras and scales with predominate development in the immediate area transitioning from low to mid-scale in height towards the west and north of the site and scaling up to the 34-storey Northpoint development to the south of the site in the centre of the North Sydney CBD.

22. Development to the west of the site is predominantly low rise residential with mixed use and education development directly opposite. The Edward Precinct Conservation Area adjoins the commercial core of North Sydney, and it is accepted that roof level signs on the northern and southern elevations of certain buildings such as the ACU Building can be seen from the Edward Precinct at various locations. There are also other residential areas adjacent to the Edward Precinct that can also view the sign.

Objectors’ evidence

23. During the night view, I also inspected two properties in the Lord Street Conservation Area owned by objectors to the application. Consistent with their written objections, they expressed concern about the illumination of the building itself separate to the signage on the site and on the surrounding development. They apprehend that the illumination of the western sign, as proposed, will exacerbate the existing amenity problems. The evidence of these objectors was reasonable and measured. They accepted that they live proximate to the commercial centre and that night-time illumination of signage and buildings is to be expected. However, they object to the proliferation of unnecessary signage and said that this signage falls into that category and will detract from their already compromised amenity. Similar evidence was received in Court from Mr Claridge who resides at 30 Lord Street. He gave evidence over the telephone before the night view and invited me to inspect the impact of the proposal from his rear yard. As it happened, the Court took a view of his property from the laneway proximate to his rear yard after viewing the other objectors' homes and the area more generally as directed by the parties. At that time, the Court together with the lawyers, the illumination experts, Mr Peter McLean (applicant) and Mr Ryan Shamier (Council) and the Council’s urban design expert, Mr Philip Pollard and the applicant’s visual expert, Dr Richard Lamb and the planners, Mr Rowe and Mr Goodyear, observed a short demonstration of the illumination of the proposed signage from a viewing point in Lord Street and the rear yards of the objectors to better understand its impact.

Contentions

24. As stated, I am dealing with an application for the illumination of an existing sign rather than a new sign as the Council contends. Therefore, many of contentions as particularised in the Statement of Facts and Contentions (SOFAC) and the Council’s evidence about the acceptability of the design and features of the sign as illuminated at night e.g. in Contention 1 relating to Section 9 of Part B of the NSDCP are not relevant to my assessment.

25. Furthermore, during the hearing, the Council indicated that it no longer pressed the reclassification of the sign as brand advertising as particularised in Contention 3. When those matters are removed from the contentions, it seems to me that the case rests upon an assessment of the proposed illumination of the western sign against the relevant provisions of SEPP 64. This requires a determination as to whether the illumination of the signage satisfies the assessment criteria in Sch 1 of SEPP 64 and is consistent with the objectives of the Policy as set out in cl 3(1) to engage my jurisdiction under cl 8. In particular, the Council agitated at the hearing that I consider whether the illumination of the signage is compatible with the existing and desired amenity and visual character of the area (SEPP 64, cl 3(1)(a)(i)); and whether the illumination of the western roof sign will have an unacceptable impact on the amenity of the residential development to the west of the site at night and cause signage clutter contrary to the public interest.

26. To that end, I need to have regard to the objectors’ concerns pursuant to s 4.15(1)(d) and (e) of the EPA Act. The Council contends that the proposed application should not be approved having regard to the matters raised in the submissions received by Council insofar as those matters coincide with the contentions raised in the SOFAC, or are otherwise considered to be determinative in these proceedings.

Decision

27. For the reasons that follow, I am satisfied that the proposed illumination to allow the display of the building identification sign at night on the western elevation is acceptable after assessment under s 4.15 of the EPA Act subject to the imposition of the agreed conditions of consent.

Statutory framework

28. The Council’s SOFAC sets out the planning legislation, instruments and plans that apply to the application.

SEPP 64

29. As the applicant identified in opening, SEPP 64 and the NSLEP work together and then there is the NSDCP. Clause 8 of SEPP 64 requires a consent authority before the grant of consent for the application to display signage to be satisfied of certain things.

30. As development consent for the sign has been granted, I accept that the objectives of SEPP 64 in cl 3(1)(a) are taken to be achieved for the sign by that approval. However, I need to consider the illumination of the sign and the aims of the SEPP. 

31. Next, cl 8(b) provides that the signage the subject of the application needs to satisfy the criteria in Sch 1. Accepting that the application is not to display signage, but rather an application to illuminate as existing sign to the extent that cl 8(b) calls up Sch 1, the relevant matters are as follows:

Criteria 1 – “Character”

32. The first relevant assessment criteria in Sch 1 is – “Character of the area” asks:

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

33. The applicant concedes the inquiry invited is compatibility in respect of both the signage and its illumination, but that it is restricted to a consideration of the area or locality in which it is proposed to be located. There is no reference to any other area other than the area in which the sign is located. Therefore, for the purposes of this criteria, I accept that a consideration of areas outside the North Sydney CBD are not relevant.

34. Focusing on the area in which the illumination is proposed, Mr Rowe gave evidence that the proposed illumination of the existing building identification signage contributes to reinforcing the North Sydney Centre’s role as a global city as identified in the NSLEP and consistent with the Council’s character statement. Therefore, he believes that the illuminated building identification sign is compatible with the amenity and existing and desired visual character of the North Sydney Centre.

35. Mr Rowe’s assessment accords with my understanding of the relevant planning controls as outlined in the beginning of this judgment. Appreciating that the consideration of amenity is subjective, based on my observations of the site and relevant area at the night view, I agree with Mr Rowe’s expert assessment that the illumination of the sign is compatible with the amenity and visual character of the area in what already exists and can reasonably be expected by the residential area immediate adjacent to the North Sydney Centre, where the Council controls provide for such forms of signage on the site (Exhibit C par 15.4). Mr Goodyear also agrees that the proposal is compatible with the desired character of the North Sydney Centre. Accordingly, I am satisfied that the criteria of character in Sch 1 of SEPP 64 is satisfied on that evidence, as summarised. The proposal is compatible.

36. That said, I do not accept as Mr Goodyear states in his evidence to the Court that the consideration invited by Sch 1 criteria 1 extends to a consideration of properties and public places from which the sign can be viewed. The criteria are specific as to location, as the applicant submits, and even applying a visual catchment assessment, the view considered by Mr Goodyear is too broad. The desired future character is informed by the existing built form in the B3 zone and its objectives and those in cl 6.1 of Part 6 of the NSLEP; and the prevailing controls is on promoting the Centre and not the surrounding area outside the relevant location.

33. The second dot point referring to the theme of the advertising is not relevant as this is an identification sign.

Criteria 2 – “Special Areas”

38. Next, is criteria 2 “Special areas”. Again, the provision invites a consideration of the proposal which is illumination of a sign to display at night. While this is a broader assessment beyond that in which the sign is located, it is restricted to a consideration of whether or not the illumination detracts from the visual quality or amenity of any of those areas. A conservation area or a residential area is the most relevant for present purposes.

39. In order to address this question, I accept that in having regard to the impact of the proposed illumination on the amenity and visual quality of the environment, one has to consider what is the visual quality and amenity at night where the impact is occurring. This is an assessment of the impact of illumination, not the sign which is approved.

40. The applicant submits that the amenity of an area includes its location and character and the impact on a conservation area in the day is different to the impact at night. Put simply, buildings and streetscapes within a conservation area cannot be readily observed at night but can in the day. That said, accepting that the illumination level is consistent with the Council’s controls, as agreed by the illumination experts, Mr McLean and Mr Shamier (Joint Expert Report, Exhibit B), Dr Pollard and Dr Lamb agreed when assessed against the light spill from the interior of the building and those nearby that the additional light emanating from the sign “appears unlikely to add significantly to the current situation” (Joint Report, Exhibit D, par 10). I am satisfied that the proposal does not detract in terms of amenity and visual quality of the relevant area.

41. In forming that view, I prefer Mr Rowe’s expert assessment that the illumination of the sign does not detract from the desired amenity and visual character of the relevant environmentally sensitive areas in this case such as the conservation areas and residential areas because an illuminated sign can reasonably be expected in a residential area immediately adjacent to the North Sydney Centre where Council’s controls provide for such illuminated signage. Mr Goodyear gave evidence that the amenity of the area would be incrementally adversely affected with more illumination of signs on the western side of the North Sydney CBD and criticised the proposal on the grounds of undesirable precedent as well as impact (Exhibit C par 11). In my opinion, Mr Goodyear’s assessment places too little weight on the Council’s current planning controls which promote the commercial centre and allow illuminated signage as explained by Mr Rowe. With respect to precedent, each case must be assessed on its individual merits and the possibility of more illuminated signage does not preclude an assessment which, on the expert evidence, supports a finding that this sign will not detract from amenity and visual quality in the relevant areas identified as relevant in this case for the purposes of criteria 2.

Criteria 3 – “Views and vistas” and Criteria 4 – “Streetscape, setting or landscape”

42. With respect to criterion 3, the applicant submits that the second two dot points are not called up by the application as they relate to the approved sign’s structure - reducing the quality of vistas and viewing rights of other advertisers. The relevant inquiry is raised by the question in the criteria – does the proposal dominate the skyline at night by being visible?

43. As indicated earlier, both Dr Lamb and Dr Pollard agreed that the additional light emanating from the illuminated sign will be unlikely to add to the current condition, so on that basis, I accept that the proposal will not dominate the skyline at night by being visible.

44. With respect to criteria 4, the scale, proportion and form in the streetscape setting or landscape as perceived at night are not impacted by the proposed illumination such as to dominate the sky or reduce the quality of vistas as they presently exist. The approved sign sits within the building mass and the illumination is compliant with all relevant controls according to the illumination experts.

45. Accordingly, I am satisfied, based on my inspection of the site and locality and the evidence of Dr Lamb and Mr Rowe and the illumination experts, that the sign satisfies criteria 3 and 4.

Criteria 5 – “Site and building” and Criteria 6 “Associated devices and logos with advertisements and advertising structures”

46. Criteria 5 and 6 are not relevant to the proposal as the form and scale and design characteristics of the sign are approved.

Criteria 7 “Illumination”

47. With respect to the illumination provisions in cl 7 of Sch 1 of SEPP 64, the expert evidence is that these provisions are more than achieved and that the criteria is satisfied.

NSDCP

48. The Council raises through the evidence of Dr Pollard, its urban design expert, objection to the application on the basis of not fulfilling the objectives of Illumination in Section 9.10 of the NSDCP even though the relevant expert evidence is that these provisions are met. In that regard, the illumination experts’ joint report (Exhibit B) concludes that the illumination of the sign will achieve the following provisions in Section 9.10 of the NSDCP:

• P1 – will not be illuminated between 1am and 7am.

• P2 – is fitted with automated timing devices to ensure compliance with operating hours to P1.

• P3 – the illumination experts agree that the illumination levels are consistent with what one would expect for somewhere between a suburban and rural residential property.

• P4 – the positioning of the illumination of the sign does not front a laneway between residential and commercial areas.

• P5 – complies with the relevant requirements of AS 4282 – Control of Obtrusive Effects of Outdoor Lighting.

Criteria 8 “Safety”

49. Criteria 8 is not engaged by the proposal.

NSDCP - Visual Clutter

50. The experts are agreed that there is not currently a significant clutter of roof signs that are visible from the western precincts, at night (Joint Report, Exhibit D, par 11). I accept their expert assessment and, in my assessment, this evidence satisfactorily addresses the issue of proliferation of signs or visual clutter as raised by the Council It also accords with my observations taken during the night view from the rear yards and homes of the objectors and Lord Street and Edward Street.

Conclusion

51. It is clear from the evidence that this large-scale sign on the western elevation of the building at roof level was approved without illumination yet provided with the capacity for illumination at the time of erection. For all of the above reasons, including a consideration of the lay submitters’ written evidence, I am satisfied that the illumination of the signage is consistent with the objectives of SEPP 64 as set out in cl 3(1)(a) and that the illumination of the signage satisfies the relevant assessment criteria specified in Sch 1. Accordingly, I have jurisdiction under cl 8 of SEPP 64 to grant development consent to the application as there is no jurisdictional basis under the NSLEP to preclude consent. After an assessment under s 4.15 of the EPA Act, which includes a consideration of the relevant provisions in the NSDCP, I have decided to grant conditional consent to the application.

52. Accordingly, the Court orders that:

1. The appeal is upheld.

2. Development consent for Development Application No. DA 16/20 for the illumination of existing rooftop sign on western elevation of the building is approved subject to the conditions set out in Annexure A.

3. The exhibits are returned except for A, E and 2.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (246745, pdf)

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Amendments

02 July 2021 - Correction to typographical error at [30].

Decision last updated: 02 July 2021