Bayside Council v Outdoor Systems Pty Limited [2024] NSWLEC 1

Land and Environment Court New South Wales

Medium Neutral Citation: Bayside Council v Outdoor Systems Pty Limited [2024] NSWLEC 1 Hearing dates: 29 January 2024 Date of orders: 31 January 2024 Decision date: 31 January 2024 Jurisdiction: Class 4 Before: Pritchard J Decision: The Court declares that: 1. Development Consent 05/123, granted by the Land and Environment Court on 30 November 2006 and as subsequently modified (the consent) ceased to be in force as at 30 November 2021 to the extent that it authorised advertising signage on the pedestrian bridge referred to in declaration 2 below. 2. In breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW), the first respondent has since 30 November 2021 carried out development which is prohibited by the Bayside Local Environmental Plan 2021 (NSW), namely using the digital advertising signage affixed to both sides of the pedestrian bridge constructed over Wentworth Avenue, Pagewood, as shown on the photographs annexed and marked "A" and aerial photograph annexed and marked "B" (the signage). The Court orders that: 1. The first respondent by itself, its servants and/or agents is restrained from operating or using the signage for the purposes of advertising, including any associated use formerly approved by the consent. 2. The operation of Order 1 is stayed until 31 December 2024. 3. The first respondent is to pay the applicant's costs in the agreed sum of $18,000 within 28 days of the making of these orders. 4. Any party has liberty to restore on three days' notice until 31 December 2024 to make an application to the Court to extend the time period in Order 2 above. The Court notes that: 1. The applicant will not unreasonably withhold its consent to any application by the first respondent to extend the dates in Orders 2 and 4 above. 2. The parties are to advise the Court by no later than Friday, 13 December 2024 whether a party proposes to make an application in accordance with Order 4 above. Catchwords: ENVIRONMENT AND PLANNING – consent –duration or lapsing of development consent – breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW) – prohibited development – declarations and injunctive relief – stay of injunctive relief Legislation Cited: Environment Planning and Assessment Act 1979 (NSW) ss 3.28, 9.46 Environment Planning and Assessment Act 1979 (NSW) (as at 15 September 2006) ss 36, 83, 97 Environment Planning and Assessment Act 1979 (NSW) (as at 6 January 2017) s 99AA Evidence Act 1995 (NSW) s 191 Local Government Act 1993 (NSW) Roads Act 1993 (NSW) s 10 State Environmental Planning Policy No 64 – Advertising and Signage (NSW) (repealed) Part 3, cll 5, 6, 7, 9, 11, 13, 14, 17, 18, 19, 22, 24 State Environmental Planning Policy (Industry and Employment) 2001 (NSW) Part 3.3 of Chapter 3 Botany Local Environmental Plan 1995 (NSW) (repealed) cl 19 Botany Bay Local Environment Plan 2013 (NSW) (repealed) Bayside Local Environmental Plan 2021 (NSW) Cases Cited: Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Hill v Blacktown City Council (2007) 154 LGERA 418; [2007] NSWLEC 401 J.K. Williams Staff Pty Limited v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Bayside Council (Applicant) Outdoor Systems (First Respondent) The Eastlake Golf Club Limited (Second Respondent) Representation: Counsel: J Lazarus SC (Applicant) S Berveling (First Respondent) Submitting Appearance (Second Respondent)