Whitehall Property Services Pty Ltd v Randwick City Council

[2021] NSWLEC 1762

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

12 and 13 October 2021, site inspection on 4 November 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application no DA/571/2019 for a vertical living garden and integrated digital advertising sign on lot 100 DP 1156327 and Lot 1 DP 104068 known as Nos 305 and 307 Anzac Parade Kingsford is determined by the grant of development consent subject to the conditions in Annexure A.

(3) The exhibits are returned, except for exhibits B, C and D.

Catchwords:

APPEAL – vertical living garden and integrated digital advertising sign – refusal of development consent – whether compatible with desired amenity and visual character of the area – whether proposed development exhibits design excellence – precedent – compatibility with zone objectives

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Randwick Local Environmental Plan 2012

Land and Environment Court Act 1979, s 34

Roads Act 1993

State Environmental Planning Policy No 64 – Advertising and Signage, cll 3, 8, 13, 17, 18, 22, Sch 1

Cases Cited:

Aloke Holdings Pty Ltd v City of Sydney Council [2019] NSWLEC 1177

Cittrus Pty Ltd v Inner West Council [2019] NSWLEC 1558

Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126

MGT 6 Pty Ltd v City of Sydney Council [2017] NSWLEC 1211

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Whitehall Property Services Pty Limited v Randwick City Council [2019] NSWLEC 19

Texts Cited:

Randwick City Council, Planning Strategy – Kensington and Kingsford Town Centres (December 2019)

Randwick Comprehensive Development Control Plan 2013

NSW Department of Planning and Environment, Transport Corridor Outdoor Advertising and Signage Guidelines, (November 2017)

Category:

Principal judgment

Parties:

Whitehall Property Services Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
I Hemmings SC with T Poisel (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

21/44584

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant wishes to install a vertical living garden with an integrated digital advertising sign (Proposed Development) on the existing blank wall of an apartment building in the Kingsford Town Centre. The Council says the signage component of the proposed development is not compatible with the desired amenity and the visual character of the area and refused development consent for the Proposed Development. The Applicant has appealed against the Council’s decision.

2. The Applicant made a development application (DA) for consent to carry out the Proposed Development on 25 October 2019. The DA was made with the consent of the owner of the land. The Randwick Local Planning Panel refused the DA on 20 July 2020. The Applicant commenced this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 16 February 2021, within the time required by s 8.10 of that Act.

3. The appeal was subject to mandatory conciliation on 21 May 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act.

4. The hearing took place on Microsoft Teams on 12 and 13 October 2021. I conducted an inspection of the Site in the company of the parties on 4 November 2021.

The Site

5. The land on which the Proposed Development is to be carried out (Site) comprises Lot 100 DP 1156327 known as 305 Anzac Pde, Kingsford and Lot 1 DP 104068 known as 307 Anzac Pde, Kingsford. Anzac Pde is a classified road under the Roads Act 1993.

6. The building situated on 305 Anzac Pde is a nine storey shop top housing development with retail premises on the ground floor and eight levels of short-term accommodation above. The building at 307 Anzac Pde is a two storey building operating as an Asian supermarket known as “Tokyo Super”.

The Proposed Development

7. The Proposed Development has two principal elements. One is a vertical living garden (Green Wall) that is to be fixed to the existing blank wall on the southern elevation of the building at 305 Anzac Pde. The existing wall can be seen in Figure 1.

Figure 1 – Existing view of south facing wall of 305 Anzac Pde

8. The Green Wall will comprise a three-level green breathing wall with an area of 78m² and six cascading planter boxes with a total area of 35.4m². The Green Wall will be fitted with an automatic watering system.

9. The total area of the Green Wall will be 113.4m², which is roughly 75% of the total area of the Proposed Development. The Proposed Development will overhang the airspace of 307 Anzac Pde. The Green Wall will have a depth of 365mm and the planter boxes will have a depth of 550mm.

10. The second element of the Proposed Development is the integrated digital advertising sign (Proposed Sign). This will have an active display area of 40.94m² and an overall area of 42.77m² including the logo box, borders and cladding. The Proposed Sign will also overhang the airspace of 307 Anzac Pde, with a depth of 300mm, and the bottom of the Proposed Sign will be more than 5m above the existing roof line of 307 Anzac Pde.

Figure 2 – the Proposed Development

Planning framework

11. The Council has recently completed a comprehensive planning strategy review for the Kingsford and Kensington Town Centres, known as the Planning Strategy – Kensington and Kingsford Town Centres (December 2019) (K2K Strategy). This resulted in amendments to the Randwick Local Environmental Plan 2012 (LEP) in August 2020 which inserted a number of new provisions and new maps into the LEP. The Site is within Zone B2 Local Centre under the LEP. The Proposed Development is an innominate land use permissible with development consent on land within that zone.

12. The Randwick Comprehensive Development Control Plan 2013 (DCP) was originally adopted by council on 28 May 2013 and came into effect on 14 June 2013. It has been amended since that time and on 20 November 2020 the DCP was amended to implement the K2K Strategy by including a new Part E6 – Kensington and Kingsford Town Centres. This Part contains a number of provisions of relevance to this appeal which will be discussed later in this judgment.

13. The State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64) applies to the Proposed Sign and contains a number of provisions of relevance to the appeal.

14. Clause 8 of SEPP 64 provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied—

1. that the signage is consistent with the objectives of the Policy as set out in cl 3(1)(a), and

2. that the signage satisfies the assessment criteria specified in Sch 1 of the Policy.

15. The objectives of SEPP 64, as set out in cl 3(1)(a), are 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.

16. Schedule 1 of SEPP 64 sets out detailed criteria for the assessment of development applications for the erection of signage.

17. Clause 17 of SEPP 64 applies to the DA as the proposed sign both has a display area greater than 20m² and will be higher than 8m above ground. Clause 17 provides that the display of an advertisement to which the clause applies is advertised development for the purposes of the EPA Act and that:

(3) The consent authority must not grant consent to such an application unless—

(a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(b) the application has been advertised in accordance with section 79A of the Act, and

(c) the consent authority gave a copy of the application to TfNSW at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies.

18. Clause 18 of SEPP 64 applies to the DA, both because the Proposed Sign will be located within 250m of and will be visible from Anzac Pde, a classified road, and also because cl 17 of SEPP 64 applies to the Proposed Sign. Clause 18 of SEPP 64 requires compliance with cl 13(2). Clause 13(2) provides that the consent authority must not grant consent to the DA unless it—

(a) is consistent with the objectives of SEPP64 as set out in cl 3(1)(a), and

(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and in the Guidelines and the consent authority is satisfied that the proposal is acceptable in terms of—

(i) design, and

(ii) road safety, and

(iii) the public benefits to be provided in connection with the display of the advertisement, and

(c) satisfies any other relevant requirements of this Policy.

19. “Guidelines” is defined in cl 4 of SEPP 64 to mean:

the provisions of the publication titled Transport Corridor Outdoor Advertising and Signage Guidelines approved by the Minister for the purposes of this Policy and published in the Gazette on the date on which State Environmental Planning Policy No 64—Advertising and Signage (Amendment No 3) is published on the NSW legislation website.

20. As cl 18 applies to the DA, cl 13(3)(b)(iii) of SEPP 64 provides that the consent authority must not grant consent unless arrangements that are consistent with the Guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement.

21. The Proposed Sign meets the definition of “wall advertisement” in cl 4(1) of SEPP 64 and cl 22 of SEPP 64 also therefore applies. That clause provides that the consent authority may grant consent to a wall advertisement only if:

(a) the consent authority is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed, and

(b) for a building having—

(i) an above ground elevation of 200 square metres or more—the advertisement does not exceed 10% of the above ground elevation, and

(ii) an above ground elevation of more than 100 square metres but less than 200 square metres—the advertisement does not exceed 20 square metres, and

(iii) an above ground elevation of 100 square metres or less—the advertisement does not exceed 20% of the above ground elevation, and

(c) the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards require a greater protrusion, and

(d) the advertisement does not protrude above the parapet or eaves, and

(e) the advertisement does not extend over a window or other opening, and

(f) the advertisement does not obscure significant architectural elements of the building, and

(g) a building identification sign or business identification sign is not displayed on the building elevation.

22. While the Council’s Statement of Facts and Contentions (Ex 1) contended that the Proposed Development did not comply with cl 22 of SEPP 64, the Council informed the Court at the commencement of the hearing that this contention was no longer pressed. I am satisfied that the Proposed Sign complies with the requirements of cl 22.

Expert evidence

23. A Joint Experts Report (Ex 3) was prepared by the parties’ experts. The Applicant’s experts were: Mr Nigel Dickson (town planning, architecture and urban design), Mr Ryan Shamier (lighting) and Mr Murray Howe (real estate). The respondent’s expert was Mr Michael Brewer (town planning). A supplementary joint expert report (Ex 6) was prepared by Mr Dickson and Mr Brewer during the course of the first day of hearing. I will discuss the expert evidence relevant to the issues in dispute below.

Public submissions

24. The DA was notified to the owners of adjoining and likely affected neighbouring properties for a period of 14 days from 30 October 2019 to 13 November 2019. As mentioned above, a draft planning agreement accompanied the DA and this was publicly notified between 30 January and 2 March 2020. The Council received a total of 10 submissions in response. All but one submission supported the approval of the DA. The one objection raised concerns about the heat load from the signage inside the premises as 307 Anzac Pde.

25. Included as Appendix F to the joint expert report (Ex 3) is a letter from Mr Ryan Bjerkeset, a mechanical engineer, dated 17 September 2021. Mr Bjerkeset states that he has reviewed the structural design of the proposed sign. He expresses the view that the required steel attachments will provide sufficient airflow for natural ventilation and that any heat load from the sign will be negligible. This evidence was not contested by the Council and accordingly I find that the heat load inside the premises at 307 Anzac Pde will be negligible and that development consent should not be refused on this ground.

The issues

26. The issues requiring consideration and determination in this appeal may be summarised as follows:

1. Compatibility of the Proposed Development with the desired amenity and visual character of the local area.

2. Whether the Court is satisfied that the Proposed Development is acceptable in terms of design having regard to:

1. the assessment criteria in Sch 1 of SEPP 64; and

2. the Guidelines.

3. Whether the Proposed Development is required to exhibit design excellence and, if so, whether the Court is satisfied that the Proposed Development does in fact exhibit design excellence.

4. Precedent:

1. Whether the Court should come to the same conclusion as Pain J in an earlier appeal for an advertising sign on the same site; and

2. Whether the grant of development consent would create an undesirable precedent.

5. Whether the Proposed Development is consistent with the relevant zone objectives.

Is the Proposed Development compatible with the desired amenity and visual character of the area?

27. One of the aims expressed in cl 3(1)(a) of SEPP 64 is to ensure that signage (including advertising) is compatible with the desired amenity and visual character of an area. Both cll 8 and 13 of SEPP 64 require consistency with that aim as a prerequisite, or condition precedent, to the grant of development consent. It is also one of the matters requiring assessment under Sch 1 of SEPP 64.

28. The parties agree that the relevant area for the purposes of cl 3(1) is the strip of land within Zone B2 along Anzac Parade that comprises the Kingsford Town Centre extending from Sturt Street at the southern end through to Barker Street at the northern end: Transcript, 13 October 2021,p.75.

The existing character of the area

29. There is little disagreement between the parties about what constitutes the existing visual character of the area. The Council’s evidence (Ex 3 at [48]) is that the existing character of the area can generally be described as a mix of traditional two storey premises containing ground floor retail or commercial activities with the first floor providing a range of commercial services and residential flats. Newer development, stimulated by recent zoning, height and floor space ratio changes and the construction of the light rail, is typically of a larger form and footprint, up to 8 or 9 storeys high with substantial side setbacks and with retail or commercial development at ground floor level. The Kingsford Town Centre has “a distinctive retail and dining character, and a strong evening economy stemming from its proximity to UNSW and its large student demography”: Ex 3 at [46] citing the K2K Strategy. The existing signage in the area is generally restricted to below the awning, on the fascia of the awning or at first floor up to the parapet over the first floor.

30. In oral evidence, the Applicant’s urban design expert, Mr Dickson, agreed that the existing character is predominantly one and two‑storey buildings with some higher level buildings and that advertising is currently limited to nothing higher than the second storey (Transcript, 13 October 2021, p 75).

31. The observations of the parties’ experts are consistent with my own observations of the area made during the site inspection on 4 November 2021.

32. Clause 3(1)(a)(i) of SEPP 64 requires the Court to be satisfied that the Proposed Development is compatible with the desired amenity and visual character of the area (emphasis added). This, in my view, requires consideration to be given both to the existing character of the area and also to the desired future character of the area. The parties disagree about what the desired future character of the area is.

Desired future character

33. Mr Brewer, the Council’s town planning expert, gave evidence (Ex 3 at [53] to [56]) that, in terms of the desired future character of the area, there are now explicit statements and concept plans provided for the Kingsford Town Centre in Part E6 of the DCP. He places reliance on the specific Character Statement for Kingsford in Section 3.1 of Part E6 of the DCP which is as follows:

“Kingsford Town Centre: Statement of Desired Future Character

Kingsford will develop into an exciting and dynamic town centre continuing to draw on its rich multi-cultural identity. The town centre will provide a diverse offer of restaurants, cafes and retail shopping, set within a rejuvenated public domain that supports activation and social interaction. The town centre will be a safe and inclusive place to live, work and visit. Buildings will be designed to the highest quality incorporating a mix of apartments, laneway mews and affordable housing. Highly connected and accessible, the town centre will foster hubs of activity focused around the terminus at Kingsford Junction and Kingsford Mid-Town, the old heart of the Kingsford.

Economic and social transformation of the centre will be facilitated by creating a cohesive and attractive streetscape with reduced visual clutter. The town centre will have a green focus, and set a new performance benchmark for sustainability within the LGA through ESD targets, WSUD practices, public places with canopy trees and landscaping and support of sustainable transport modes such as the light rail, buses, cycling and walking. The integrity of existing heritage items, contributory buildings and/or heritage conservation areas within and around the town centres will continue to be respected and integrated, through high quality architectural design.

Innovative business start-ups will be encouraged to provide a ‘bridge’ between research and business.”

34. Mr Brewer’s evidence is that the existing character of the Kingsford Town Centre has the dominant feature that signage is located at or below first level facing the street frontage and that the advertising is generally related to the building to which it is attached and associated with identifying the premises, goods and services provided (Ex 3 at [50]-[51]). His evidence is that no other building in the vicinity of the Site has signage provided in the location proposed by the DA or has similar physical parameters as the Proposed Sign (Ex 3 at [52]). Mr Brewer’s evidence is that the Proposed Sign will be “highly visible” from a range of locations in a southerly direction from the Site and will “create visual clutter” (Ex 3 at [56]). He says the Proposed Development is not compatible with the desired amenity and visual character of the area “by virtue of its size, location and visual impact on the public domain and desired future character of the Kingsford Town Centre” (Ex 3 at [20]).

34. Mr Brewer’s evidence is that, while the existing blank wall “lacks any visual appeal, it is also consistent with almost all other blank southern facades in the visual catchment of the sign.” (Ex 3 at [61]). These, he says, “contribute to the overall cityscape” (Transcript, 13 October 2021 at p 61). Mr Brewer in cross examination did concede that, viewed in isolation, he would consider the wall to be unsightly (Transcript, 13 October 2021 at p 61).

35. The Council submits that there is nothing in the amended provisions of the LEP or DCP that suggests that the desired future character of the area is one that includes larger signs at the top or in the middle of the higher level buildings that are being promoted by the new controls.

36. The Applicant’s expert, Mr Dickson, gave evidence that, in his opinion, the Proposed Sign is compatible with the future character of the Kingsford Town Centre which, he says, “has been shaped by the completion of the CBD and South East Light Rail”: Ex 3 at [25]. As a result of the light rail project and other redevelopment projects, his evidence is that the Kingsford Town Centre and Anzac Parade corridor will undergo urban changes: Ex 3, at [25]. His evidence is that the newly introduced Part E6 of the DCP envisages a boulevard character along Anzac Parade which will achieve “urban design, place and architectural excellence as well as improving streetscape and removing visual clutter”: Ex 3, at [26]. He says the Proposed Development will “create an attractive streetscape, by covering the aged blank rendered wall of the existing building”: Ex 3, at [27]. Mr Dickson also gave evidence that above awning signage, roof/sky signs and/or signs greater than 20m² are envisaged by clause 33.1((e) of Part E6 of the DCP (Ex 3 at p 15).The Applicant argues that there is no provision in the DCP which precludes the approval of an advertising sign above awning level and says that the only control restricting the location of signage above awning level is that contained in the DCP at section 3.2(vi) of Part F2 – Outdoor Advertising. That control relates only to buildings listed as heritage items or located within a heritage conservation area and does not apply to the Proposed Sign.

37. The Applicant argues that the Proposed Development will improve the appearance of the existing blank wall of the building which it says is unsightly. Mr Dickson’s evidence is that the Proposed Development will create an attractive streetscape as well as providing visual interest with some environmental benefits (Ex 3 at [27] and [107]). These include (Ex H at [6]):

• slowing and cleaning stormwater;

• reducing the impacts of “urban heat island” effect;

• creating additional space for urban greening;

• improving air quality;

• improving amenity and liveability of the city;

• increasing the absorption of carbon dioxide; and

• increasing habitat to support biodiversity.

Findings on compatibility

39. I have concluded that the Proposed Development is compatible with the desired amenity and visual character of the area in which it is to be carried out.

40. While the Proposed Sign is not the same as existing signage in the area, that does not mean that it is not compatible with the desired amenity and visual character of the area. As Roseth SC observed in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191, “compatibility” is different from sameness, saying (at [22]):

“22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.”

41. While not the same as existing signage in the area, in my assessment the Proposed Sign will exist in harmony with its surroundings.

42. The Kingsford Town Centre is in transition and the recent amendments to the DCP describe the desired future character of the area as “an exciting and dynamic town centre”. The DCP says the Kingsford Town Centre will be a “hub of activity” (Ex 2 at folio 263). The DCP recognises that “advertisements and signage are important elements of town centres and are a fundamental component of business communications” (Ex 2 at folio 326). The DCP recognizes that advertising that is “well designed, appropriate in scale and suitably located can add interest, character and vitality to the built environment”: (Ex 2 at folio 351).

43. In my assessment the Proposed Development will add interest, character and vitality to the local area and will make a positive contribution to making this part of Kingsford an exciting and dynamic town centre. I also find that the Proposed Development will screen and make a significant improvement to the appearance of the existing unsightly blank wall on which it is to be carried out.

44. I do not accept Mr Brewer’s evidence that the Sign is not compatible with the desired amenity and visual character of the area by reason of its size, location and visual impact. The parties’ experts agree that the Sign complies with the relevant geometric and size requirements of SEPP 64 (Ex 3 at [14]). I also reject the Council’s argument that the new provisions of the LEP and DCP do not envisage signage of the size proposed by the DA. As pointed out by Mr Dickson (Ex 3 at p 15), clause 33.1(e) in Part E6 of the DCP, which is part of the suite of new provisions implementing the K2K Strategy, expressly contemplates above-awning signage, roof/sky signs and signs greater than 20m², subject to meeting the objectives and controls set out in sub-paragraphs (i) to (v).

45. For these reasons I am satisfied that the Proposed Development is compatible with the desired amenity and visual character of the local area.

Assessment of the DA in accordance with Sch 1

46. There are a number of overlapping provisions of SEPP 64 requiring consideration of Sch 1 of SEPP 64.

47. Clause 8(b) of SEPP 64 provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.

48. Clause 17 of SEPP 64 applies to the DA as the proposed sign both has a display area greater than 20m² and will be higher than 8m above ground. Clause 17(3) relevantly provides that the consent authority must not grant consent to the display of an advertisement to which the clause applies unless the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts.

49. The Applicant has prepared an impact statement that addresses the assessment criteria in Sch 1, although the parties’ experts disagree about whether the impact statement adequately demonstrates that the assessment criteria have been satisfied (Ex 3 at [76]).

50. Clause 18 of SEPP 64 applies to the Proposed Development both because the Proposed Development will be located within 250m of and will be visible from Anzac Pde, a classified road, and also because cl 17 of SEPP 64 applies to the Proposed Development. Clause 18 of SEPP 64 requires compliance with cl 13(2). Clause 13(2)(b) relevantly provides that the consent authority must not grant consent to the DA unless it has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and in the Guidelines and the consent authority is satisfied that the proposal is acceptable in terms of—

(i) design, and

(ii) road safety, and

(iii) the public benefits to be provided in connection with the display of the advertisement.

51. I will deal with whether the Proposed Sign is acceptable in terms of its design below.

52. In relation to road safety, Transport for NSW has provided its concurrence to the granting of development consent to the DA and the Council does not raise any road safety issues in relation to the Proposed Sign. In those circumstances I am satisfied that the Proposed Sign is acceptable in terms of road safety.

53. In relation to the provision of public benefits, the DA is accompanied by an offer by the Applicant to enter into a voluntary planning agreement which the Applicant says will provide the following public benefits:

1. The procurement, installation and ongoing maintenance of the Green Wall and all associated costs including its removal and make good.

2. The procurement, installation and ongoing maintenance of a free community Wi-Fi service for the period during which the Proposed Sign is in use with coverage at least to Meeks Street Plaza and the Strachan Street Light Rail platform.

3. A monetary contribution of $20,000 on an annual basis.

4. Twelve campaigns of one week in duration per annum on the Proposed Sign for the Kingsford Chamber of Commerce Inc to advertise and promote local businesses and activities.

54. The Council resolved to enter into the proposed voluntary planning agreement on 23 June 2020 (Ex 2, Tab 11). The Council does not contend that suitable arrangements have not been made for the provision of public benefits in connection with the Proposed Sign. I am satisfied that the Proposed Development is acceptable in terms of the public benefits to be provided in connection with the display of the Proposed Sign.

55. The assessment of the DA in accordance with the assessment criteria in Sch 1 is therefore required in this case by each of cll 8(b), 13(2)(b) and 17(3)(a).

56. The assessment criteria in Schedule 1 to SEPP 64 relevant to this application, as identified by the Council during the hearing, are:

Schedule 1 Assessment criteria

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?

57. I will deal with each of these matters in turn.

1.   Character of the area

58. The compatibility of the Proposed Development with the existing and desired future character of the area has been addressed above.

59. In terms of whether the proposal is consistent with a particular theme for outdoor advertising in the area or locality, the Council’s expert, Mr Brewer, explained that Part E6 of the DCP “essentially reflects the objective criteria and controls of SEPP 64, but does not adopt specific thematic controls.” (Ex 3 at [58]). His evidence was that the K2K Strategy included several actions “to minimise visible clutter and create legible coherent streetscapes”. These were:

“▪ b) Collaborate with the business chambers to develop a signage strategy that reflects the unique character of the town centres. This may include an Asian themed signage strategy for Kingsford town centre.

▪ c) Strengthen DCP 2013 controls relating to signage within the town centres by requiring that:

- – New works involve the removal of unsympathetic signage where possible.

- – All new signage be set below the street awning or awning fascia

- – a signage plan is submitted as part of the redevelopment of key sites.”

60. Mr Brewer also referred to the Note to Clause 33 .1 of Part E6 of the DCP which is as follows:

“Above awning signage, roof/sky signs and signs greater than 20m2 are generally discouraged where they do not meet the objectives and controls set out in this clause”,

61. His evidence was that this note indicated an appreciation that large signs pose greater risks of adverse impacts on the built environment (Ex 3 at [58]).

62. While the Council does not point to any planning document that sets a particular theme for outdoor advertising, it says that the existing advertising is at ground and first floor level for the whole of the strip and that this is the relevant theme for this area.

63. For the Applicant, Mr Dickson gave evidence (Ex 3 at [36]) that the DCP does not set out a particular theme for outdoor advertising and does not expressly dictate the size, colour, shape or position of signage. His evidence is that above awning signage, roof/sky signs and/or signs greater than 20m² are envisaged by clause 33(1)(e) of part E6 of the DCP. He points out that Part F2 of the DCP states that in business zones an objective is to “reduce the visual complexity of streetscapes by providing fewer, more effective signs”. His evidence is that the Proposed Development achieves this as it “is a streamlined digital sign that cycles, providing a more effective sign by providing multiple vendors space in one location”.

64. Regarding the two “actions” referred to by Mr Brewer relating to signage set out in the K2K strategy, Mr Dickson’s evidence (Ex 3 at [69]) is that the DCP has now been updated to reflect the K2K Strategy but that the Council did not limit signage to awnings and under awnings. He says there is nothing in the DCP which prohibits signs above awnings.

2   Special areas

65. 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?

66. Mr Brewer’s evidence (Ex 3 at [59]) is that, while the Proposed Sign is not located in any of the specified areas, it will be highly visible from adjacent residential areas and buildings containing residential dwellings in both the surrounding B2 Local Centre and the R3 Medium Density Zones, particularly in a western and southerly arc from the Site. In his opinion, it will have an adverse impact on the amenity and visual quality of residences in those zones.

67. For the Applicant, Mr Dickson’s evidence (Ex 3 at [70]) is that the Proposed Sign will not diminish the amenity of nearby properties. He says the Proposed Sign will not be highly visible and the luminance from the Proposed Sign is very low to negligible at most locations. To the extent that the Proposed Sign will be visible from nearby residential properties, Mr Dickson’s evidence (Ex 3 at [68] and [71]) is that it will be an improvement, breaking up the expansiveness of the blank wall and the scale of the façade.

68. The Council argued that the impact of the Proposed Sign must be assessed without regard to the ameliorative effects of the green wall. I cannot accept that submission. Even if cl 13(3) of SEPP 64 focusses the attention of the consent authority on the sign itself, the impact of the Proposed Sign on the amenity of the residential area cannot, in my assessment, be considered in a vacuum and without regard to measures, such as the Green Wall, that will lessen that impact. In this regard I prefer Mr Dickson’s evidence that the Proposed Development will be an improvement on the view of the blank wall currently seen from the nearby residential properties.

3.    Views and vistas

69. There are three aspects to this consideration:

• 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?

70. Mr Brewer’s evidence (Ex 3 at [60]) is that the Proposed Development will obscure or compromise important views. He points out that views do not need to be in the category of “iconic” or “significant” to be “important”. He says the Proposed Sign will dominate and compromise the important northward views along the Anzac Pde corridor. Mr Brewer’s evidence is that this view corridor is important because Anzac Pde is the main transport corridor for both Kingsford and Kensington Town Centres. For this reason and the high-quality design outcomes sought by the planning controls for the area, his evidence is that views of and along this corridor are important and help provide a visual connection to the locality. He says the DA, if approved, will place a large sign at an elevated position within the Town Centre where no other signs exist.

71. Mr Brewer’s evidence is that, for the same reasons, the Proposed Development will dominate the skyline and reduce the quality of vistas (Ex 3 at [60]). In his opinion, the Proposed Development will not make a positive contribution to the northward vista along Anzac Parade. While the Green Wall could exist in its own right, Mr Brewer’s evidence is that it simply serves to draw attention to and heighten the adverse visual impact of the Proposed Sign.

72. In Mr Brewer’s opinion, the Proposed Sign does not respect the viewing rights of other advertisers as it will establish an undesirable precedent by locating a structure that is of a size, function and form that is positioned above all other signs, creating a visually dominant sign (Ex 3 at [60]). He says the Proposed Sign is to be mounted approximately level with the fifth floor of the subject building, well above all other signage associated with the Kingsford Town Centre, providing what he describes as “unparalleled exposure” and adversely dominating other signage within the town centre.

73. Mr Dickson gave evidence (Ex 3 at [36]) for the Applicant that there are no important, iconic or key views or vistas within the Kingsford Town Centre or its immediate surrounds. He says the Proposed Sign is to be affixed to an existing large, blank wall, only projecting 300mm from the wall surface and, in his view, the Proposed Sign will not compromise important views.

74. Mr Dickson also gave evidence (Ex 3 at [36]) that the Proposed Sign will not dominate the skyline or reduce the quality of vistas. His evidence is that the Proposed Sign is to be located 8.73m below the roof parapet of the building, which is approximately 3 storeys below the top of the building. It will be set back from both the eastern and western building edges and will comprise less than 10% of the above ground southern elevation of the building. Mr Dickson’s evidence is that the Green Wall element will soften the prominent and expansive blank wall and the modular arrangement of the landscape and the Proposed Development will mitigate the impact of the bulk and scale of the wall rather than increasing its visual impact.

75. In relation to whether the Proposed Development respects the viewing rights of other advertisers, Mr Dickson’s evidence is that the sign will not impact on the legibility or visibility of other signage. He points out that the Proposed Sign will be the only sign on the façade and will be separated from other signs both on the same building and also on adjoining buildings.

4   Streetscape, setting or landscape

76. This consideration asks the following questions:

• 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?

77. In relation to scale, proportion and form, Mr Brewer’s evidence (Ex 3 at [61]) is that the proposal “fails in this regard” for the reasons given elsewhere in his evidence. Mr Dickson, however, says (Ex 3 at [36]) that in his opinion the Proposed Development responds to the existing large expansive blank side wall which he describes as a detracting element within the Kingsford Town Centre. He says that the existing building does not have a proliferation of signage. It has no awning fascia sign and the only signage is under-awning signage. The Sign in his opinion is in proportion with the side façade.

78. In relation to visual interest, Mr Brewer gave evidence (Ex 3 at [61]) that the Proposed Development “fails” for reasons given elsewhere in his evidence. He adds that the Sign is not located within, but above and thereby disconnected with the two storey commercial and retail development along Anzac Parade. The sign will be located above the commercial activity within an area occupied by taller residential towers, into which the sign will intrude.

79. Mr Dickson’s evidence (Ex 3 at [36]) is that the Proposed Development contributes to the visual interest of the streetscape “by introducing a composed arrangement of green walls, hanging gardens and the (Proposed Sign), and eliminating a broad, unarticulated blank wall”. In his opinion, the Proposed Development will have a lesser impact on the streetscape than building elements that are positioned on lower levels of the building “which have a more immediate connection to the pedestrian realm”. In his opinion, the Proposed Development will contribute to the visual interest of the landscape through the Green Wall. He says that there is currently little landscaping within the Kingsford Town Centre along the Anzac Pde corridor and believes that the Proposed Development will contribute to the landscape “in an arrangement sympathetic to the predominantly commercial character of the corridor”.

80. As for the reduction of visual clutter, Mr Brewer’s evidence (Ex 3 at [61]) is that the Proposed Development will not remove any existing signage within the Kingsford Town Centre, but will add to it. His evidence is that the Proposed Sign, by displaying advertisements in rotation, will generate significant visual clutter compared to a fixed under-awning sign typically found within the town centre which, he says, generally displays a single message associated with the business to which it is attached. Mr Dickson’s evidence (Ex 3 at [36]) is that there is no existing advertising on the proposed façade. The provision of a single advertising sign on the façade, in his opinion, does not comprise clutter. His evidence is that the digital sign as a form of advertising:

“represents a rationalisation and simplification of existing advertising methods because it allows for multiple advertisements to occur in a single location, on a single apparatus with a generous dwell time and seamless cycling of no more than 0.1 s.”

81. On Mr Dickson’s evidence, the Proposed Development will also reduce clutter by being a conscious, modular composition of signage integrated with significant green wall elements (Ex 3 at p 18).

82. As to whether the Proposed Development will protrude above buildings, structures or tree canopies in the area, Mr Brewer’s evidence (Ex 3 at [61]) is that the Proposed Sign will be visible both above the existing two storey development adjoining the Site and the tree canopy. On his evidence, the lack of any other such signs protruding above what he describes as “the established signage zone” will exacerbate the visual protrusion. Mr Dickson disagrees. His evidence (Ex 3 at [36]) is that the Proposed Sign will be below the parapet of the existing building and will read as a part of the building. He says the Proposed Sign will not extend above the tree canopy, and points out that in any case there is a limited tree canopy along Anzac Pde in this location with trees being situated on side streets some distance away from the Site.

83. Finally, the parties agree that the Proposed Development will require ongoing vegetation management as described in the Plan of Management submitted by the Applicant.

Consideration

84. With the benefit of the expert evidence addressing the assessment criteria in Sch 1 of SEPP 64, I am satisfied that the signage the subject of the DA satisfies each relevant assessment criterion specified in Schedule 1 (as required by cl 8(b)). I have assessed the Sign in accordance with the assessment criteria in Sch 1 and am satisfied that it is acceptable in terms of its impacts (as required by cl 13(2)(b) and 17(3)(a)).

85. I generally prefer Mr Dickson’s evidence in relation to the assessment of the Proposed Sign against the criteria in Sch 1. I do not propose to canvass every point discussed by the experts but make the following observations and findings:

1. Notwithstanding Mr Brewer’s evidence to the contrary, I am unable to discern a particular theme for outdoor advertising in the DCP for this area. I cannot accept the Council’s argument that the existing advertising at ground and first floor level sets the theme for this area as it looks only at the existing character of the area and ignores the changes to the character of the area that are likely to result from the recent changes to the LEP and DCP. As previously noted, clause 33.1 of the DCP clearly contemplates above-awning signage, roof/sky signs and signs greater than 20m² in this area subject to meeting the objectives and controls set out in sub-paragraphs (i) to (v). In those circumstances it cannot reasonably be argued that, when the desired future character of the area is taken into account, there is any theme that limits signage to ground and first floor levels. I prefer Mr Dickson’s evidence on this issue.

2. I do not accept Mr Brewer’s evidence that the Proposed Development will have an adverse impact on the amenity and visual quality of residences in the adjacent residential zones. While the Proposed Development will be visible from a few dwellings in the adjacent area, the view will be predominantly of the green wall which, in my view, will be an improvement on the existing view of the blank façade.

3. Nor can I accept Mr Brewer’s evidence on views and vistas. The construction of the Proposed Development on the existing blank wall cannot seriously be thought to compromise important views. To the extent that the Proposed Development will be visible to people travelling north on Anzac Pde, I find that the city view involved will be enhanced by the Proposed Development. Instead of a drab blank wall, viewers will see a green wall and colourful signage. These will contribute to achieving the Council’s aim of making this part of Kingsford “an exciting and dynamic town centre”.

4. Having regard to the examples of visual clutter contained in the Guidelines (discussed further below) I do not accept Mr Brewer’s evidence that the construction of a single sign, which is clearly separated from any other sign nearby, can be described as “clutter”.

5. I also prefer Mr Dickson’s evidence to that of Mr Brewer on whether the Sign will screen unsightliness. I am in no doubt that the wall as it currently exists may fairly be described as being “unsightly” and that the Proposed Development, and the Green Wall component in particular, will both screen and improve the appearance of the existing blank wall.

6. Ultimately, having assessed the Proposed Sign against the relevant criteria in Sch 1, I am satisfied that the signage will have an acceptable impact – both generally and particularly in relation to the matters identified by the Council.

Assessment of the DA in accordance with the Guidelines

86. Clause 13(2)(b) of SEPP 64 provides that the consent authority must not grant consent to an application to display an advertisement to which that clause applies unless the advertisement or the advertising structure, as the case requires, has been assessed by the consent authority in accordance with the Guidelines.

87. The introduction to the Guidelines (Ex 2 at p 344) explains the purpose of the Guidelines:

“The Transport Corridor Outdoor Advertising and Signage Guidelines (Guidelines) outline best practice for the planning and design of outdoor advertisements in transport corridors, such as along or adjacent to classified roads, freeways, tollways, transitways and railway corridors, or on bridges or road and rail overpasses. “

88. The Guidelines are in five sections:

1. Section 1 outlines the main provisions of SEPP 64 and how they relate to the Guidelines.

2. Section 2 outlines:

1. general assessment criteria for all advertisement proposals under SEPP 64;

2. specific design criteria for advertising structures within transport corridors.

3. Section 3 outlines Roads and Maritime Services’ (RMS) road safety guidelines in relation to all signage within road corridors.

4. Section 4 outlines public benefit test requirements for advertisements within transport corridors.

5. Section 5 outlines the various roles of RMS in approving or giving concurrence to certain types of advertising structures.

89. The parties agree that the Site is not located within, but is on land adjacent to, a transport corridor, being Anzac Pde. As noted previously, Transport for NSW has provided its concurrence to the granting of development consent and the Council does not raise any road safety issues in relation to the Sign. There is also no dispute that the public benefit test has been met by the Proposed Development.

90. For the purposes of cl 13(2)(b) of SEPP 64, the relevant part of the Guidelines is Section 2. Section 2.2 of the Guidelines provides:

“The design of a sign and where it is placed affects the character of the environment. Advertising that is well designed, appropriate in scale and suitably located can add interest, character and vitality to the built environment. Poorly designed or placed advertisements, or too many signs in one location, can degrade streetscapes and rural environments, and detract from heritage buildings. The desired character of an area is a key criterion for the assessment of the appropriateness of an advertising sign.”

91. Section 2.3.2 of the Guidelines states:

“Consideration must be given to the compatibility of advertising development with surrounding land uses and whether such advertising will impact on sensitive locations. For instance, placement of advertising along transport corridors should not result in increased visibility of signage in adjacent or surrounding residential areas.”

92. Table 1 – Land Use Compatibility Criteria at p 14 of the Guidelines contains a similar but not identical provision. It provides that advertisements must not be placed on land where the signage is visible from a number of listed areas, “if it is likely to significantly impact on the amenity of those areas”. One of the listed areas is a “residential area (but not including a mixed residential and business zone, or similar zones)”.

93. The Council submits that the Proposed Sign is inconsistent with section 2.3.2 of the Guideline as it places advertising along a transport corridor that will result in increased visibility of signage in adjacent or surrounding residential areas. It says that the Proposed Sign will be seen not only from the commercial area or the strip of road, it will be seen, and will be highly visible from, the adjacent residential area. The Council says that section 2.3.2 should not be read as if it is qualified by reference to whether the advertising will have a significant impact on the surrounding residential area.

94. The Applicant says that the opening words of section 2.3.2 indicate that the section is intended to require consideration to be given to the compatibility of advertising with surrounding land uses by reference to the impact the advertising will have. The example given in the section should not be read as imposing an absolute prohibition on advertising that can be seen from a residential area: it is the impact the advertising will have that determines its compatibility with a sensitive land use and, having regard to the provisions of Table 1, the impact would need to be significant before a consent authority would decide that such advertising would be incompatible with that use.

95. I agree with the Applicant’s interpretation. In my opinion the example given in section 2.3.2 was not intended to suggest that no advertisement could be approved that is visible from a residential area regardless of its impacts. The opening words of section 2.3.2 expressly require consideration of compatibility in the context of the impacts the advertising will have and, read together with Table 1, the Guidelines make it clear that advertising should not be approved if it will have a significant impact on the amenity of a residential area.

96. The impact of the Proposed Development on the amenity of the area has been discussed in some detail earlier in this judgment and I do not propose to repeat that discussion. Suffice to say, in my view, that while the Proposed Development will be visible from the adjacent residential area, its impact will not be unacceptable. The Proposed Sign will, in my assessment, add interest, character and vitality to the streetscape. The Sign will occupy approximately 25% of the Proposed Development with the remaining 75% comprising the Green Wall. The Green Wall will be the dominant feature visible from the nearby residential area and the Proposed Development as a whole will, in my view, screen and improve the appearance of the existing blank wall and will improve the amenity of the local area.

Design excellence and cl 6.11 of the LEP

97. The Council’s Statement of Facts and Contentions does not raise any issue in relation to the DA’s compliance with cl 6.11 of the LEP. Nor was this issue canvassed in the joint experts report (Ex 3). However, if the clause applies to the Proposed Development, it raises a jurisdictional bar to the grant of development consent unless the Court is satisfied that the Proposed Development exhibits design excellence. For this reason, when the issue was first raised by the Council during opening, I requested the parties’ urban design and planning experts to confer and prepare a supplementary joint expert report dealing with this issue. That supplementary report became Ex 6 in the appeal.

98. Clause 6.11 is relevantly as follows:

6.11   Design excellence

(1)  The objective of this clause is to deliver the highest standard of architectural and urban design.

(2)  This clause applies to development involving the construction of a new building or external alterations to an existing building—

(a)  on a site that has an area of 10,000 square metres or greater, or

(b)  on land for which a development control plan is required to be prepared under clause 6.12, or

(c)  that is, or will be, at least 15 metres in height.

(3)  Development consent must not be granted to development to which this clause applies unless the consent authority is satisfied that the proposed development exhibits design excellence.

Does cl 6.11 apply?

99. The Council says that the Proposed Development involves the erection of a “building”, defined in s 1.4 of the EPA Act as including a structure or any part of a structure. It says that the Proposed Development involves the erection of a structure and therefore the erection of a building for the purposes of cl 6.11. The parties agree that the Proposed Development will be at least 15 m in height. Consequently, the Council submits that development consent can only be granted to the Proposed Development if I am satisfied that the Proposed Development exhibits design excellence.

100. The Applicant contends that cl 6.11 does not apply because it does not involve “the construction of a new building” or “external alterations to an existing building”. The Applicant submits that the Proposed Development involves the use of land (i.e. the use of the Site for the Proposed Sign and the Green Wall) and the carrying out of a work (i.e. the fixing of the Proposed Sign and the Green Wall onto the southern elevation). The Applicant argues that the Proposed Development does not involve the erection of a building because the Proposed Sign and Green Wall will not be “erected” – but rather fixed or mounted – and, therefore, does not fall within the concept of a building. It follows that the Proposed Development equally does not involve the construction of a building for the purpose of cl 6.11(2) of the LEP.

101. The Applicant relies on the decision of the Court of Appeal in in Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2018] NSWCA 240 in which Basten JA (with whom Meagher JA and Preston CJ of LEC agreed) made the following observations:

“95 The answer is to be derived from the statutory context. Thus, “building work” is defined in s 4(1) to mean “any physical activity involved in the erection of a building.” Many structures require construction, that is, the putting together of disparate parts, in circumstances where one would not speak of erection. Similarly, many things are built, but do not constitute buildings, despite the common linguistic root. Further, a critical concept in the Environmental Planning and Assessment Act is “development”. That concept underlies the system of regulation. Development is defined in s 4(1) as covering (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work and (e) the demolition of a building or work. Although not entirely separate and independent concepts, these elements of the definition indicate conceptual distinctions. It is clear that “work” is a broader category than “building”.

…

97 It is therefore relevant that one does not ordinarily speak of erecting a road or occupying a road except, in the latter case, perhaps, by protestors. On the other hand, one can envisage many structures which are erected which may not be described as a building in ordinary usage. Television towers and radio masts may be examples. A structure which is never described as having been “erected” does not fall within the concept of a building, even on an expansive view of that term. Importantly, unlike terms such as “development” and “work”, the Act demonstrates no intention to give “building” so expansive a denotation as to encompass all kinds of structures. The fact that something may stand above the natural level of the land (such as the gates in Mulcahy or the large piles of rock envisaged by Mahoney JA in Mulcahy) suggests that such a characteristic is not sufficient to make the thing a structure. Nor would it matter that such an item had a level of permanence or was largely immovable. On the other hand, the construction of a roadway would readily constitute the carrying out of a work and thus a development.”

102. Further, the Applicant submits that the Proposed Development does not comprise “external alterations to an existing building”. The Applicant argues that, while it is true that the Proposed Development will effect a change to the appearance of the southern elevation, it does not follow that the change constitutes “external alterations” to the wall. It says that the painting of the southern elevation and the fixing of the Proposed Development onto the wall are not “alterations” to the existing building. If this were not the case, the Applicant submits, the painting of a façade or the installation of air conditioning units on balconies would constitute external alterations to an existing building which would engage the design excellence provision.

Is the erection of the Proposed Sign the construction of a new building?

103. The Proposed Development is described in the Statement of Environmental Effects that accompanies the DA in the following terms:

“The development involves the installation and ongoing operation of a vertical living garden with integrated digital advertising sign mounted to the existing southern wall of 305 Anzac Parade in Kingsford. The development includes structures that overhang the adjoining property.”

104. I agree with the Applicant’s submissions that the installation and mounting of the vertical living garden and digital sign do not involve the construction of a new building. The “construction” of both components of the Proposed Development does not occur on the Site but takes place elsewhere with the constructed elements being brought to and affixed onto the wall of the building at 305 Anzac Pde. This reading of the provision is, in my view, consistent with both the ordinary meaning of the words used and also with the stated objective of cl 6.11, which is “to deliver the highest standard of architectural and urban design”. While the Proposed Sign and the Green Wall may make a contribution to the standard of architectural and urban design of the building on which they are affixed, in my view they are not themselves capable of being assessed in their own right in terms of their own architectural and/or urban design quality. In this regard I note that cl 6.11 refers to the construction of a new building (emphasis added) and in my view the installation of the Proposed Sign and Green Wall cannot be seen as constituting the construction of a “new building”.

105. It does, however, seem to me that the Proposed Development will involve the making of external alterations to an existing building. The Proposed Development will make a significant change to the appearance of the existing building and the building work involved in affixing the Proposed Sign and Green Wall to the building, in my view, involve the making of external alterations to the building. I have concluded that I cannot grant development consent to the Proposed Development unless I am satisfied that the Proposed Development exhibits design excellence.

Does the Proposed Development exhibit design excellence?

106. Provisions in the same form as cl 6.11 have been considered by the Court on a number of occasions. The Court has held that:

1. Subclause (3) is a precondition to consent. It requires the Court to form an opinion, before granting development consent, as to whether “the proposed development exhibits design excellence”. This phrase is not defined. In considering whether the proposed development exhibits design excellence, the clause requires a consideration of the matters in subcl (4) in order to achieve the objective of the clause being the delivery of “the highest standard of architectural, urban and landscape design”: MGT 6 Pty Ltd v City of Sydney Council [2017] NSWLEC 1211 at [85];

2. The matters for consideration under cl 6.11(4) are cumulative and when considered together determine whether the development, as a whole, exhibits design excellence: Aloke Holdings Pty Ltd v City of Sydney Council [2019] NSWLEC 1177 at [85].

107. In Madss Properties No 2 Pty Ltd ATF Newtown Property Trust (No 2) v Blacktown City Council [2019] NSWLEC 126, Moore J, in considering a provision similar to cl 6.11 in the Blacktown Local Environmental Plan 2015, found that the following assessment was required:

“62 Subject to what I discuss in the next section concerning cl 7.7(4)(a), it would usually be necessary for the Commissioner to engage with the evidence of those experts concerning each of the elements to which he was required to have regard by virtue of cl 7.7(4). Whilst his consideration of those factors, where the experts were in agreement, would not have required extensive analysis (unless the Commissioner disagreed with the conclusion the experts had reached), nonetheless, he was required to address each of the agreed matters and express a view on the experts’ position and his reason for adopting that view.

63 Where there was disagreement between the planning witnesses, the Commissioner needed to engage with that disagreement; reach a conclusion as to what was the appropriate resolution of that disagreement; and explain why he had reached that conclusion.

64 Having undertaken that process with respect to the matters set out in cl 7.7(4), the Commissioner would then need to reach his conclusion, in light of all of that material, as to how the question posed by cl 7.7(3) was to be answered. This would have required weighing his various conclusions concerning the various elements in cl 7.7(4) in order to reach an overall answer to the question posed by cl 7.7(3). He would have needed to give sufficient reasoning in support of that conclusion to enable the parties (particularly whichever party was unsuccessful on that point) to understand why he had made that determination.”

108. The matters requiring consideration under cl 6.11(4) are:

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the development will improve the quality and amenity of the public domain,

(c) how the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the same site and on neighbouring sites,

(d) whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency,

(e) whether the proposed development detrimentally impacts on view corridors and landmarks.

109. As mentioned above, the Court has been assisted by a supplementary joint expert report prepared by the Applicant’s town planning and urban design expert, Mr Dickson, and the Council’s town planning expert, Mr Brewer (Ex 6). The experts themselves agreed that the Proposed Development would be development involving the construction of a new building or external alterations to an existing building that is, or will be, at least 15 metres in height. They also agreed that the Council has no stand-alone adopted Green Wall policy, but that provisions relating to Green Walls are included in Section 20, Part C of Part E6 of the DCP and that Section 32 of the DCP deals with Public Domain and Landscape. The experts agree that green walls can have a variety of environmental benefits but do not agree that the proposed advertising sign exhibits design excellence.

110. In cross-examination (Transcript, 13 October 2021, p 65), Mr Brewer accepted that he does not have professional qualifications in urban design and did not purport to comment upon any matters that rely upon architectural integrity in order to express an opinion as to design excellence for the purposes of cl 6.11. He also agreed that his assessment under cl 6.11 focussed on the Proposed Sign rather that the Proposed Development comprising both the Proposed Sign and the Green Wall. Presumably for that reason, Mr Brewer did not address some of the matters listed in cl 6.11(4) in the Supplementary Joint Expert Report (Ex 6).

111. I will now consider each of the matters raised by cl 6.11(4).

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved

112. This consideration was not directly addressed in Mr Brewer’s evidence.

113. For the Applicant, Mr Dickson points out that the Proposed Development consists of nine landscape elements which cover much of an existing blank wall and the digital signage display. He says that the landscape objective for the Green Wall is directed to improving the pedestrian experience and the appearance of the wall when viewed from the Light Rail, cars and buses passing the site. His evidence is that:

“the extensive area of landscape elements is designed to combine plants to a visually appealing aesthetic while reducing ambient temperature and enhancing the quality of air. It also assists in reducing glare. The plant materials assist in supporting local urban ecology. The wall is south-facing, and the plant material is selected for this situation and the height above ground.”

114. Mr Dickson’s evidence is that the composition of the Proposed Sign and the Green Wall is important. He says that the landscape components of the Green Wall are arranged such that the digital display is surrounded at the top, bottom and to the west side by landscape elements. There is, he says, approximately 9m of landscaping above the Proposed Sign. Mr Dickson says that the Proposed Sign will not dominate the installation because it will be surrounded by landscape elements and will not be located at the pinnacle of the wall surface.

115. Mr Dickson’s evidence is that a high standard of architectural design is achieved by the composition of landscape and signage elements in a form of arrangement in which he says the cascading landscape elements relate to the horizontal bands of the existing building. His evidence is that the Green Wall, which comprises large rectangular surfaces of plants, is similar in proportion to the rectangular shape of the Proposed Sign. Together he says these elements are arranged in a cascading movement as they are placed on the wall surface. The signage elements are relatively flush with the wall surface; the landscape elements have relatively more depth and structure and prominence on the wall surface.

116. I accept Mr Dickson’s evidence that the Proposed Development achieves a high standard of architectural design, materials and detailing appropriate to the building type and location.

(b)   whether the form and external appearance of the development will improve the quality and amenity of the public domain,

117. As noted above, Mr Brewer’s evidence relates only to the Proposed Sign and not to the Proposed Development as a whole. He says that the Proposed Sign is to be located well above the existing ground and first floor level “zone” that he says is evident throughout the town centre and within an area primarily occupied by the residential components of the surrounding mixed use buildings and the adjacent residential zones. In his opinion, the Proposed Sign will have an adverse impact on both the amenity of these residential uses and the public domain of the town centre, regardless of the standard of design, finish, materials or detailing. On his evidence a sign located at this level and that creates such adverse impacts cannot be said to exhibit design excellence.

118. Mr Brewer’s evidence is that the sign will not improve the quality and amenity of the public domain, given that it will be highly visible from a variety of locations within the Anzac Pde corridor and within public areas of the adjoining R3 zoned land. He says the Proposed Sign will have an adverse impact on the amenity and visual quality of residences in those zones and maintains that the Proposed Sign is not compatible with the desired amenity and visual character of the area by virtue of its size, location and visual impact on the public domain and desired future character of the Kingsford town centre.

119. In relation to cl 6.11(4)(b), Mr Dickson gave evidence that the Proposed Development will result in a marked improvement to the form and external appearance of the existing rendered wall of 305 Anzac Pde due to the reduction of aged render surface visible from Anzac Pde. In his opinion, there will be marked improvements in the quality and amenity of the public domain due to the extensive area of landscape material.

120. I prefer Mr Dickson’s evidence on this point. By focussing on the Proposed Sign and failing to consider the impact of the Green Wall, Mr Brewer’s evidence does not properly address whether the Proposed Development as a whole exhibits design excellence. Clause 6.11 is not, in my assessment, concerned only with the Proposed Sign but with the “development” the subject of the DA. In this regard I agree with Mr Dickson that the Proposed Development will make a significant improvement to the appearance of the blank rendered wall of 305 Anzac Pde and consequently will improve the quality and amenity of the public domain in the places from which that wall and the Proposed Development will be seen.

(c)   how the proposed development responds to the environmental and built characteristics of the site and whether it achieves an acceptable relationship with other buildings on the same site and on neighbouring sites

121. Mr Brewer says that the proposed sign does not respond to the environmental and built characteristics of the Site. His evidence is that it will not result in the rationalisation and simplification of existing advertising but will create visual clutter through the introduction of a large wall sign in a dominant location where presently there is no such advertising signage at all in the town centre. Likewise, on his evidence, the Proposed Sign does not achieve an acceptable relationship with other buildings on neighbouring sites.

122. Mr Dickson says that the Proposed Development responds to the environmental and built characteristics of the site, given its southern orientation with the placement of landscape elements and a design and plan of management prepared by well recognised experts. He says the Proposed Development will not be highly visible within the nearby R3 zone or from within many areas of the B2 zone but will be visible primarily from the road environment. His evidence is that illuminance levels are well below established criteria for such signs. He describes the Proposed Development as a “bespoke arrangement for the wall surface”. His evidence is that the Proposed Sign will have landscaping above and below and to the west of the sign area, and is to be placed within a composition of two types of landscape elements. The design in his view has an acceptable relationship with other buildings around the Site and on neighbouring sites because of its hours of operation, the level of illuminance nominated and the temporary nature of the installation, such that when there is development of the blocks to the south the sign will be removed.

123. Clause 6.11(4)(c) does not require the Proposed Development to reduce visual clutter or to rationalise existing signage and I find Mr Brewer’s evidence does not address the consideration required by this provision. In this regard I prefer Mr Dickson’s evidence which directly addresses the considerations raised by cl 6.11(4)(c) and find that, for the reasons he gives, the Proposed Development appropriately responds to the environmental and built characteristics of the Site and achieves an acceptable relationship with the building on which it is to be carried out as well as buildings on neighbouring sites.

(d)   whether the building meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity, visual and acoustic privacy, safety and security and resource, energy and water efficiency,

124. Mr Brewer did not address this issue in his evidence.

125. Mr Dickson says the Proposed Development meets sustainable design principles in terms of sunlight, natural ventilation, wind, reflectivity and has benefits for:

• slowing and cleaning stormwater;

• reducing the impacts of the “urban heat island” effect;

• creating additional space for urban greening, food production and private open space.

• improving air quality;

• improving amenity and liveability of the city;

• increasing the absorption of carbon dioxide;

• increasing habitat to support biodiversity;

• improving building efficiency through heating, cooling and sound insulation.

126. The placement of the Proposed Sign will, on Mr Dickson’s evidence, not impact on the surrounding land uses in the locality. He says the acoustic properties of the Proposed Sign have been demonstrated as being of a low order and “like a refrigerator at 1m” and that there will be no sound transmission to the adjoining residential units. His evidence is that visual amenity loss has been considered in detail at more than 18 locations across the local area considering the existing and transitional outcomes as new buildings are constructed. Finally, he says the sign and illuminance levels have been shown to cause minimal visual and light spillage.

127. I accept Mr Dickson’s evidence that, for the reasons he gives, the Proposed Development meets relevant sustainable design principles.

(e)   whether the proposed development detrimentally impacts on view corridors and landmarks

128. With respect to view corridors, Mr Brewer says that the “proposal” (by which I understand him to be referring to the Sign) will dominate and compromise the important northward views along the Anzac Parade Corridor. He says this view corridor is important because Anzac Parade is the main transport corridor for both Kingsford and Kensington Town Centres. He says:

“For this reason and the high-quality design outcomes sought, views of and along this corridor are important and help provide a visual connection to the locality. The proposal provides for a large sign at an elevated position within the Town Centre where no other signs exist.”

129. Mr Dickson’s evidence is that the Proposed Development does not detrimentally impact on view corridors because it is visible on Anzac Pde primarily from the road pavement area. The placement of the Proposed Sign and Green Wall, he says, has no impact on significant views towards landmarks, important landscape elements within the public domain or iconic features such as the Sydney skyline.

130. I agree with Mr Dickson on this point. The addition of the Proposed Sign and Green Wall to the view experienced from Anzac Pde will, for reasons I have given earlier in this judgment (at [44]), add interest, character and vitality to the local area and will make a positive contribution to making this part of Kingsford an exciting and dynamic town centre. The Proposed Development will also screen and make a significant improvement to the appearance of the existing unsightly blank wall on which it is to be carried out, which is in plain view for people driving north on Anzac Pde. In my opinion, the Proposed Development will not have a detrimental impact on view corridors and landmarks.

131. Having now considered each of the matters raised by cl 6.21(4), I must decide whether, having regard to all of my findings, I am able to conclude that the Proposed Development exhibits design excellence. As set out above, I accept the Applicant’s expert urban design evidence in relation to each of the considerations set out in cl 6.11(4)(a) to (e). Having considered each of those matters, I am satisfied that the Proposed Development exhibits design excellence.

Precedent

132. The issue of precedent arises in this appeal in two ways. One concerns whether I should come to the same conclusion as Pain J in an earlier appeal concerning a development application for an advertising sign on the same site. The second is whether the approval of this DA will itself create an undesirable precedent for the future.

The earlier appeal

133. Dealing with the first issue, the Council contends that the Proposed Development is materially the same as that the subject of an earlier decision of Pain J in Whitehall Property Services Pty Limited v Randwick City Council [2019] NSWLEC 19 (Whitehall v Randwick). It says that I should therefore come to the same conclusion as Her Honour in relation to the compatibility of the Proposed Development with the desired future character of the area.

134. In that case, Pain J found that the advertising sign the subject of the appeal was not compatible with the desired future character of the area. At [55] Her Honour said:

“[55]  I consider that Mr Brewer’s assessment of the character of the Centre reflects its dual nature as both a commercial and retail centre up to two storeys in height with shop top development fronting Anzac Parade and taller residential apartment blocks set back and behind this strip. I agree with Mr Brewer that advertising should be subservient to the mixed use nature of the locality. The proposal represents a significant intrusion into the higher residential zone. It would sit well above the existing large amount of signage (as defined in SEPP 64), consisting of building identification, business identification and advertisement signage in the two-storey commercial and retail strip along Anzac Parade.”

135. It is apparent that those findings were based on the Court’s understanding of the existing character of the local area. In relation to the desired future character, Her Honour said (at [56]):

“There is limited information available about the desired future character of the Centre, being largely the Draft Strategy to which limited weight can be given. The Draft Strategy has no formal status under the EPA Act as a policy document that has been exhibited to the public but is yet to be formalised in an instrument recognised as having legal weight. It can be considered at a general level as providing some indication of the Council’s future intentions for the relevant area. What is envisaged in that document is a continuation of the Centre as a mixed commercial and retail zone with residential uses. Taller residential buildings are intended and the minimisation of visual clutter through co-location of signage is proposed inter alia. The proposed sign does not appear to be compatible with that desired future character.”

136. The Council says that nothing has changed and that I should therefore reach the same conclusion as Pain J.

137. In November 2020, following judgment in Whitehall v Randwick, Part E6 was introduced into the DCP which had the effect of defining the future character of the Kingsford Town Centre. As the Applicant submits, there is now an authoritative document which outlines the desired future character for the Kingsford Town Centre which was not available to Her Honour when the earlier appeal was decided. That desired future character is substantially different to that indicated by the evidence that was before Her Honour in the earlier appeal. The desired future character of the Kingsford Town Centre, is described at Section 3.1 of the DCP, as an “exciting and dynamic town centre… with a diverse offer of restaurants, cafes and retail shopping, set within a rejuvenated public domain that supports activation and social interaction.” This is a significant change from the situation prevailing at the time of the earlier appeal in which Her Honour found the desired future character to be a continuation of the centre as a mixed commercial and retail zone with residential uses.

138. The amendments to the DCP that implemented the K2K Strategy also inserted clause 33 into Part D of the DCP. Clause 33(e) expressly anticipates advertising signs both that are large (more than 20 m²) and above awnings.

139. The previous application was for the installation of a digital sign alone and did not include the Green Wall which is an important component of the Proposed Development the subject of this appeal. For the reasons I have given elsewhere in this judgment, the Green Wall will make a significant positive contribution to the amenity of the area and will result in impacts significantly different to the development the subject of Pain J’s decision.

140. In this appeal I am dealing with a development application for different development to that the subject of the earlier appeal and in very different circumstances given the clear statement in the amended DCP of the desired future character of the area, a desired future character significantly different to that contemplated at the time of the earlier appeal. In those circumstances, I reject the Council’s submission that “nothing has changed” and that I should come to the same conclusion as Her Honour on compatibility with desired future character.

Will approval of this DA create an undesirable precedent?

141. The Council argues that the DA should be refused because its approval will create an undesirable precedent. In this regard, Mr Brewer’s evidence was that there are a number of other sites in the area with “some potential for similar unsatisfactory signs”: Ex 3 at [184]. Mr Dickson did not disagree with the identification of these sites.

142. There is no dispute between the parties that the correct approach to the consideration of this issue is to be found in the decision of Lloyd J in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 (at [28]):

“A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in tum dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs". As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”

143. As I have found that the Proposed Development is not objectionable in itself, there is no basis on which development consent could reasonably be refused merely because the approval of the DA might lead to the making of other similar applications. I am also not persuaded on the evidence that there is a sufficient probability that further such applications will be made. In those circumstances, I find that the approval of the DA will not create an undesirable precedent for the approval of future similar applications.

Compatibility of the Proposed Development with the zone objectives

144. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. Those objectives are:

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

•  To encourage employment opportunities in accessible locations.

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

•  To enable residential development that is well-integrated with, and supports the primary business function of, the zone.

•  To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community.

•  To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones.

•  To facilitate a safe public domain.

145. The Council says that the Proposed Development is not compatible with the objectives of the B2 Zone. It relies, in particular on the alleged incompatibility of the Proposed Development with the objective in the penultimate objective, “To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones”.

146. The Council argues that the visual amenity of the residents in the adjoining residential zone is not “protected” by the Proposed Development (Transcript, 13 October 2021, p 114). The Council submits that the Proposed Development will introduce an “uncharacteristic element” that will be “highly visible from the adjoining residential area and accordingly will be incompatible with the zone objectives” (Transcript, 13 October 2021, p 114).

147. I have had regard to the zone objectives in coming to my decision. The objective referred to by the Council is concerned with minimising, not eliminating, the impact of development and, in my view, the Proposed Development has been designed to minimise its likely impacts by, for example, the incorporation of the Green Wall and also the illuminance levels, which on Mr Dickson’s evidence, have been shown to cause minimal visual and light spillage (see para [130]).

Conclusion

148. Development consent should be granted subject to the conditions, which were agreed between the parties, set out in Annexure A.

149. The Court orders that:

1. The appeal is upheld.

2. Development application no DA/571/2019 for a vertical living garden and integrated digital advertising sign on lot 100 DP 1156327 and Lot 1 DP 104068 known as Nos 305 and 307 Anzac Parade Kingsford is determined by the grant of development consent subject to the conditions in Annexure A.

3. The exhibits are returned, except for exhibits B, C and D.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (401611, pdf)

Architectural Plans (714643, pdf)

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Decision last updated: 10 December 2021