Willoughby City Council v Sahade
[2002] NSWLEC 214
•12/12/2002
Reported Decision: (2002) 123 LGERA 219
Land and Environment Court
of New South Wales
CITATION: Willoughby City Council v Sahade & Ors [2002] NSWLEC 214 PARTIES: APPLICANT
Willoughby City CouncilFIRST RESPONDENT
A. SahadeSECOND RESPONDENT
THIRD RESPONDENT
Kingsford Car Wash Pty Limited
Crystal Carwash Cafe Pty LimitedFILE NUMBER(S): (4)0409 of 2002 CORAM: Cowdroy J KEY ISSUES: Planning Instruments :- unauthorised advertising structure LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Planning Ordinance No. 55 (repealed)
State Environmental Planning Policy No. 64
Willoughby Local Environmental Plan 1995CASES CITED: City of Nunawading v Harrington [1985] VR 641; (1985) 55 LGRA 139;
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421;
Hersfield Developments Corporation Pty Limited v Melbourne and Metropolitan Board of Works (1980-1982) 46 LGRA 180;
Hobday v Nicol [1944] 1 All ER 302;
R v Rose [1965] Q.W.N. 42;
Shire of Perth v O'Keefe (1964) 110 CLR 529; 10 LGRA 147DATES OF HEARING: 31/10/2002 DATE OF JUDGMENT:
12/12/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr P Clay (Barrister)SOLICITORS
Mallesons Stephen JaquesFIRST, SECOND & THIRD RESPONDENTS
SOLICITORS
Mr M Sahade (Barrister)
Comino Prassas
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
(4)0409 of 2002
12 December 2002COWDROY, J
- Applicant
- First Respondent
- Second Respondent
- Third Respondent
Judgment
1 Willoughby City Council (“the council”) by its amended application filed on 31 October 2002 seeks a declaration that the respondents have unlawfully displayed an advertisement contrary to the provisions of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) and for a consequential order restraining such display.
Facts
2 Prior to the institution of these proceedings the respondents had repeatedly parked a two-wheeled boxed trailer (“the trailer”) in Ellis Street, Chatswood, in close proximity to the intersection of that road with the Pacific Highway. Such locality is contained within the Willoughby City local government area and is affected by the provisions of the Willoughby Local Environmental Plan 1995 (“the LEP”).
3 Mounted on the trailer and occupying its entire framework was a large sign advertising the respondents’ car wash and associated café. The sign occupied the length of the trailer, containing text of substantial size and words advertising the location of the respondents’ car wash and the cost of the services. At the left side of the sign the addresses of all of the respondents’ car wash facilities were listed namely, Chatswood, Mosman, Kingsford and Sans Souci.
4 The signs on each side of the trailer were identical and were placed so as to form a triangular shape. At the rear end of the trailer the sign “CRYSTAL CAR WASH CAFÉ” was displayed.
5 The council, by its Senior Development Enforcement Officer, Mr Gerard Timbs, first observed the trailer on 21 January 2002 when it was parked on a vacant property at 523-533 Pacific Highway, Chatswood. A registration search was conducted and according to official records the first respondent was recorded as the registered owner.
6 Mr Timbs again observed the vehicle on 3 June 2002 parked at the side of Ellis Street, Chatswood, at the corner of the Pacific Highway. The rear of the trailer was parked 5.4 metres from such intersection in breach of Rule 170 of the Australian Road Rules which in summary require a minimum distance of 10 metres for the parking of any vehicle from an intersection.
7 The trailer was, as shown in the photographs tendered in evidence, in derelict condition. The tyres were deflated and rust corrosion was evident. Its mudguards were damaged and it was not fitted with brake lights or traffic indicators.
8 On 26 June 2002 Mr Timbs inflated the tyres of the trailer and it was removed to a council depot. On 28 June 2002 he received a telephone call from Mr Nicholas Prassas who identified himself as the solicitor for the second respondent. As a result of negotiations the vehicle was returned to the second respondent. It was later observed on 10 July 2002 parked within the premises of Crystal Carwash Café at 315 Victoria Avenue, Chatswood.
9 On 11 July 2002 Mr Timbs again observed the trailer parked on the southern side of Ellis Street, Chatswood, approximately half way between the eastern end of Ellis Street and the Pacific Highway. The trailer was parked in a “2 hour” parking zone and contrary to the direction of traffic. On 12 July 2002 Mr Timbs observed the trailer parked on the northern side of Ellis Street, within 10 metres of the corner of Ellis Street and the Pacific Highway.
10 No consent had been granted by the council for the trailer to be parked in any of the streets affected by the LEP.
Council submissions
11 The council submits the conduct of the respondents constitutes a breach of cl 9(1) of the LEP which provides:
- 9(1) A person shall not display an advertisement or erect an advertising structure except with the consent of the Council.
The term “advertisement” and “advertising structure” are defined in cl 5(1) of the LEP as follows:
- 5(1) “ advertisement ” means the display of symbols, messages or other devices for promotional purposes or for conveying information, instructions, directions or the like, whether or not the display contains a reference to the use of the premises on which the display occurs and whether or not the display involves the erection of a structure or the carrying out of work.
- “ advertising structure ” means a structure used or to be used principally for the display of an advertisement.
12 Accordingly the council claims entitlement to the relief sought in the amended application.
Respondent’s submissions
13 The first respondent says that at all material times the trailer was registered in the name of the second respondent which uses the trailer regularly for delivering cleaning chemicals and materials to the third respondent’s car wash facilities at Chatswood, Mosman, Kingsford and Blakehurst. The Sans Souci car wash is no longer in operation. The respondents claim that the trailer has always been registered and to their knowledge has been roadworthy. The first respondent submits there is no need for development consent as alleged by council and the primary use of the trailer is for transportation of goods. The first respondent has deposed as follows:
- There is presently no garage for the trailer. It is sometimes inconvenient to park the trailer always on the car wash sites as space is usually scarce in order to drive customer’s cars safely around.
Is the sign displaying an advertisement?
14 The ordinary meaning of the words “advertise” is to provide public notice of something or to make something generally or publicly known: see Hersfield Developments Corporation Pty Limited v Melbourne and Metropolitan Board of Works (1980-1982) 46 LGRA 180 at p 186.
15 The obvious purpose of the sign erected upon the trailer was to bring the existence of the respondents’ car wash facilities to the attention of the public. In this case the signs contain messages and constitute advertising. The Court finds that the signs erected on the trailer constitute advertisements within the definition in cl 5(1) of the LEP.
Is the trailer an advertising structure?
16 The Court is required to determine whether the trailer, being parked repeatedly in the positions referred to, was so placed as to constitute an “advertising structure” within the meaning of cl 5(1) of the LEP. To comply with such definition, not only must there be the display of the advertisement but also the existence of a structure.
17 In Hobday v Nicol [1944] 1 All ER 302, Humphreys J defined ‘structure’ at pp 303-304 as follows:
- Structure, as I understand it, is anything which is constructed; and it involves the notion of something which is put together, consisting of a number of different things which are so put together or built together, constructed as to make one whole which is then called a structure.
18 A structure can include a moveable object. In R v Rose [1965] Q.W.N. 42 Gibbs J at p 43 said:
- The word ‘structure’ in its most natural and ordinary meaning is a building, but the word is capable of having the wider meaning of anything constructed out of material parts, and in that sense undoubtedly would include a machine and a caravan.
19 Several factors establish to the satisfaction of the Court that the trailer, when parked, constituted an advertising structure. From Mr Timbs’ evidence it is apparent that as at April 2002 the trailer was not in regular use. The photographs show there was no provision for carriage of goods on the trailer unless the rear panel of the advertising hoarding was removed. The first respondent acknowledged the trailer was parked in Ellis Street, Chatswood, at a distance of approximately one kilometre from its Chatswood premises. There were parking places in closer proximity to the Chatswood premises where the trailer could have been parked. The parking of the derelict trailer in a manner and at a place remote from any of the respondents’ car wash facilities and the size of the sign confirms its use as an advertising structure.
20 Since the institution of these proceedings the trailer has been substantially renovated and altered but the parking of the trailer was for the purpose of advertising, irrespective of any other use. The Court concludes that the parking of the trailer in the manner described in the evidence renders the trailer an “advertising structure” within the definition in cl 5(1) of the LEP.
Is development consent required by the respondents?
21 The respondents submit that development consent is not required for the parking of the trailer as claimed by the council because it is not the intention of the respondents to make it a “fixture to land”.
22 Clause 3(1) of the LEP defines the local government area to which the LEP applies as follows:
- (1) This plan applies to all land within the City of Willoughby identified on the map.
The map attached to the LEP incorporates, inter alia, Ellis Street.
23 Clause 9(1) of the LEP prohibits the display of an advertisement or erection of an advertising structure except with consent of the council. Clause 9(2) provides that the council shall not consent to display of an advertisement on land or the erection or use of an advertising structure on land in certain circumstances. Significantly cl 9(1) does not refer to or require the display to be on land. The proscribed activity is that of displaying an advertisement or erecting an advertising structure within the Willoughby local government area.
24 The respondents’ submission ignores the circumstance that the trailer may be used for one or more purposes, being the transportation of goods as well as for the purposes of advertising. In City of Nunawading v Harrington [1985] VR 641; (1985) 55 LGRA 139, Supreme Court of Victoria considered the observations of Kitto J in Shire of Perth v O’Keefe (1964) 110 CLR 529; 10 LGRA 147, wherein His Honour had referred to the “real and substantial” test of a use. The Supreme Court said (at 646: 145):
In any case, when Kitto J referred to ‘real and substantial’ use, he was not speaking of the extent of use or the degree of activity but of the method of determining whether the designated purpose was being served by the actual use or uses. What he said is particularly pertinent where premises are variably used to serve different purposes.
Subsidiary issues
By analogy the trailer may have several uses and it is a question of fact in each case to determine the precise nature of a use. The council has established that the real and substantial purpose of the trailer was advertising and accordingly the respondents must seek approval for such use in accordance with cl 9(1) of the LEP.
25 By way of defence, the respondents have sought to rely upon the provisions of a repealed ordinance namely Planning Ordinance No. 55 entitled “Regulation of Advertisement and Structures Used for the Display of Advertisements” (“Ordinance 55”).
26 Ordinance 55 contained a provision which recognised that certain forms of advertising did not require a permit including “an advertisement on an motor vehicle used principally for the conveyance of passengers or goods” (see cl 4(2)(c)). Since the Ordinance ceased to have operation prior to the institution of these proceedings, it cannot assist the respondents.
27 The respondents also rely upon State Environmental Planning Policy No. 64 entitled “Advertising and Signage”. Since such Policy does not impact upon the prohibition contained in cl 9(1) of the LEP it cannot assist the respondents.
28 The respondents also submit that the test of the provisions of cl 9(1) of the LEP is so broad as to prohibit signs on moving vehicles such as buses and vans which might travel through the local government area. Such submission ignores the purpose for which the vehicles are being used. If the principal purpose of the vehicle is to permit transportation of people or goods, such use may not constitute “advertising”. The facts of each case must be considered. In this case the parking of the trailer in the streets of the Willoughby local government area has been undertaken principally for the purpose of advertising and not for transportation.
Relief
29 The applicant acknowledges that the first respondent was never the registered owner of the trailer and that the records to which it was given access from the Roads and Traffic Authority were mistaken. In these circumstances no order is now sought against the first respondent.
30 The respondents have filed a cross claim seeking declarations relating to the use of the trailer. In view of the findings made the cross claim must fail. Further, in its discretion the Court would refuse to make a declaration where the purpose of doing so is essentially advisory: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at p 435.
Orders
31 The Court makes the following declaration and orders:
1. A DECLARATION that the second and third respondents, their servants and agents have carried out, caused, permitted or suffered the displaying of an advertisement without consent of the applicant in breach of the Environmental Planning and Assessment Act 1979.
2. AN ORDER that the second and third respondents, their servants and agents be restrained from using the trailer or other moveable device for the purpose of displaying any advertisement in the Willoughby local government area without prior consent of the council.
3. AN ORDER that the second and third respondents pay the costs of these proceedings.
4. AN ORDER that the proceedings against the first respondent be dismissed.
5. AN ORDER that the applicant pay the first respondent’s costs if any such costs have been incurred separately to those of the second and third respondents.
6. AN ORDER the cross claim of the respondents be dismissed.
7. AN ORDER that the second and third respondents pay the costs of the Cross Claim.
8. AN ORDER the exhibits be returned.
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