Land and Environment Court New South Wales Medium Neutral Citation: Captive Vision Pty Ltd v North Sydney Council [2023] NSWLEC 1011 Hearing dates: Conciliation conference on 22 November 2022; 9 and 22 December 2022 Date of orders: 11 January 2023 Decision date: 11 January 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is upheld. (2) The application to modify the conditions of Development Consent No. 193/2018 to change the dwell time of the signage is approved in the form of the conditions in Annexure A to this agreement. Catchwords: MODIFICATION APPLICATION – digital signage on classified road – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.55 Land and Environment Court Act 1979 ss 34, 64(1) North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Industry and Employment) 2021 Ch 3, Sch 5 Cases Cited: Captive Vision Pty Limited v North Sydney Council [2019] NSWLEC1425 Texts Cited: North Sydney Development Control Plan 2013 Transport Corridor Outdoor Advertising and Signage Guidelines November 2017 Category: Principal judgment Parties: Captive Vision Pty Ltd (Applicant) North Sydney Council (First Respondent) Transport for NSW (Second Respondent) Representation: Counsel: N Brunton (Solicitor) (Applicant) K Law (Solicitor) (First Respondent) A Hemmings (Second Respondent) Solicitors: Norton Rose Fulbright (Applicant) Matthews Folbigg Lawyers (First Respondent) Hunt & Hunt (Second Respondent) File Number(s): 2022/213788 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of North Sydney Council's deemed refusal of an application to modify the development application no. 193/2018, for which the Court granted consent on 10 September 2019 in proceedings 2018/393238, Captive Vision Pty Limited v North Sydney Council [2019] NSWLEC1425. 2. The original development consent permitted the erection and operation of a new digital advertising wall sign on the eastern elevation of the Cremorne Hotel building at 287 Military Road, Cremorne, Lot 55 in SP 64303. This modification application seeks to reduce the display period (dwell time) of this sign from the approved 60 seconds to 10 seconds. 3. These proceedings have been brought to the Court under s 4.55 (8) of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 November and further on 9 December and 22 December 2022. I presided over the conciliation conference. 5. Transport for NSW (TfNSW) intervened in these proceedings pursuant to s 64(1) of the LEC Act on 18 November 2022 by way of the Notice of Appearance as an Intervenor. 6. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision reduces the minimum dwell time from 60 seconds to 25 seconds, and involves the Court upholding the appeal and granting consent to the modification application subject to conditions. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to grant consent to the modification application. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following: 1. Pursuant to s 4.55(2)(a) of the EPA Act, the development to which the consent as modified relates must be substantially the same development as the development for which consent was originally granted by the Court. The modification application solely proposes a reduction in the permitted minimum dwell time for displays on an existing sign. No changes are requested to the approved built form, illumination, or operating hours of the subject sign. From this, parties submit and I accept, that the development as modified is substantially the same as that for which consent was originally granted. 2. The modification application has been notified as required. No submissions were made, other than comment received from TfNSW who subsequently intervened in these proceedings. 3. Section 4.55(3) of the EPA Act requires the consent authority to take into consideration any relevant matters referred to in section 4.15(1) of the Act, and also the reasons given by the consent authority for the grant of the consent that is sought to be modified. The parties submit and I accept that the matters referred to in section 4.15(1) are not materially relevant to the development, the subject of this application; and furthermore, that the proposed modification is congruent with the reasons given by the Court in granting the 2019 consent, which do not refer to dwell time. 4. The parties submit and I accept that, although Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2021 (the SEPP) applies to signage, it does not contain any requirements necessitating the Court's satisfaction in order to approve this modification application. They further submit and I accept that irrespective of this, the development as modified is consistent with the objectives of Chapter 3 of the SEPP; and satisfies the assessment criteria specified in Schedule 5 to the SEPP. 5. Sections 2.5.8 and 3.3.2 of the Transport Corridor Outdoor Advertising and Signage Guidelines, dated November 2017 and approved by the Minister for the purposes of Chapter 3 of the SEPP, state that a dwell time of 10 seconds is appropriate for areas where the speed limit is below 80 km/hour. The subject site is located on a section of Military Road that has a speed limit of 60 km/hour. The proposed dwell time of 25 seconds is therefore appropriate pursuant to these guidelines. 6. The parties submit and I accept that the proposed modification does not engage any jurisdictional restrictions under the North Sydney Local Environmental Plan 2013, nor are there any relevant provisions in the North Sydney Development Control Plan 2013 to this modification application given its limited scope. 1. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 3. The Court notes: 1. Transport for New South Wales (TfNSW) intervened in the proceedings pursuant to s 64(1) of the Land and Environment Court Act 1979 on 18 November 2022 by way of the Notice of Appearance as Intervenor. 1. The Court orders: 1. The appeal is upheld. 2. The application to modify the conditions of Development Consent No. 193/2018 to change the dwell time of the signage is approved in the form of the conditions in Annexure A to this agreement. ………………………. E Washington Acting Commissioner of the Court Annexure A (238766, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 January 2023