Land and Environment Court New South Wales Medium Neutral Citation: Diadem DDM Pty Ltd v North Sydney Council [2024] NSWLEC 1052 Hearing dates: Conciliation Conference 22 January and 12 February 2024 Date of orders: 16 February 2024 Decision date: 16 February 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away in the amount of $7,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of this order. (2) The appeal is upheld. (3) Development application No. DA 223/23 lodged on 19 July 2023 for the removal of existing three (3) 'AAMI' signs off north, south and east elevations plant room facades, repaint the plant room facades and install three new 'Storage King' signs north, south and east in the same locations at 99 Walker Street, North Sydney NSW 2060 (also known as Lot 101 DP 748911) is determined by the granting of consent, subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPEAL – building identification sign – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 23, 38 North Sydney Local Environmental Plan 2013, cl 5.10 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, Sch 5 Category: Principal judgment Parties: Diadem DDM Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: P Murray (Solicitor)(Applicant) S Kondilios (Solicitor)(Respondent) Solicitors: Addisons (Applicant) Hall and Wilcox (Respondent) File Number(s): 2023/338316 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA223/23 for removal of existing 3 'AAMI' signs off north, south and east elevations plant room facades, re-paint the plant room facades and install three new 'Storage King' business identification signs on the north, south and east elevations in the same locations (the Proposed Development) at 99 Walker Street North Sydney legally described as Lot 101 in DP748911 (the Site). 2. The Applicant lodged the Development Application with the Council on 19 July 2023. After the appeal was lodged, and by letter dated 17 November 2023, the Council determined the Development Application by way of approval, subject to conditions of consent (Determination). On 24 November 2023, the Applicant filed its Statement of Facts and Contention with the Court (SOFAC) indicating a contention with condition C9 of the Determination which required the scale of the logo in the signage design to be reduced by 60% on all three proposed elevations. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 22 January 2024. I presided over the conciliation conference. 4. The conciliation conference was adjourned to 9 February 2024 to allow the Applicant to provide the Council with amended plans for the Development Application. 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 involved the Court upholding the appeal and granting development consent to the development application subject to conditions. I dealt with the matter in chambers on 12 February 2024 upon the parties filing an agreement pursuant to s 34 of the LEC Act and I reserved judgment. 5. 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 a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. 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 to be the terms of s 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment) relating to the granting of consent to signage which provides as follows: 3.6 Granting of consent to signage A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied— (a) that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5. 1. The parties explained in a jurisdictional statement that the Proposed Development is consistent with the objectives of s 3.1(1)(a) of the SEPP Industry and Employment and the assessment criteria under Sched 5 of the SEPP Industry and Employment. 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. I adopt the reasons given by the parties as set out below. 2. The Proposed Development meets the objectives of Ch 3 of the SEPP Industry and Employment because the Proposed Development: 1. is scaled appropriately for the building and the broader site in which it is located; 2. is commensurate with the amenity and visual character of the area including the character of the existing surrounding of building signage in addressing the commercial nature of the Site; 3. does not block any significant views and will not have an adverse impact on the amenity or future character of the surrounding area; 4. will effectively communicate the address of a major anchor tenant of the subject building; and 5. will be of a high-quality design and finish. 1. The parties explained that the Proposed Development also satisfied the assessment criteria specified in Sch 5 of the SEPP Industry and Employment as follows: 1. The Site is location with the CBD of North Sydney and as such, the surrounding context is characterised by a mix of tall commercial buildings incorporating prominent and high-quality top of building tower signage that identifies other major tenants and building owners. The proposal comprises a business identification sign which is commensurate with the amenity and visual character of the North Sydney CBD. 2. The Site is in proximity to several heritage items however, the proposal replaces the existing signage in a similar format and execution and will not be visible outside of the Site's immediate vicinity. There will be no additional impacts on surrounding heritage items, nor will it detract from the visual quality of the area as a local commercial precinct. 3. The proposal is compatible with the desired amenity and visual character of the surrounding area and will not block any significant views. The scale, proportion and form of the proposed signage will be contained within the Site and will not impact the quality of vistas, create visual clutter or dominate the skyline within the surrounding area. 4. The proposal's scale, proportion and form have been reduced by amendment and are considered appropriate as the overall size of the proposed sign reflects the scale of similar signage within the North Sydney CBD. Similar to existing signage in the area, the proposal will be mounted directly onto the façade and not rely on any external structures or significant platforms. 5. The proposal does not contain advertising content and is a simple, high-quality design which integrates into the existing architectural forms of the façade of the building and does not dominate the surrounding locality, but rather contributes to the locality as a CBD setting. 6. The proposal will be internally illuminated by backlit LED devices. Its brightness is adjustable and will be illuminated only in the evening and at night. This will not result in unacceptable glare, nor will it affect the safety of pedestrians, vehicles or aircraft. 7. The proposed signage will not reduce safety to pedestrians or cyclists. The design does not contain any flashing lights, moving components or animations. It is appropriately integrated into the roof level façade and will not detract from the safety of the public domain or obscure sightlines from public areas. 1. The Development Application has been made by the Applicant with the consent of the owner of the land in accordance s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 and filed with the Court with the Class 1 Application at Tab 2. 2. The Proposed Development was publicly exhibited and referred to Transport for New South Wales (TfNSW). No objections were received by the Respondent and TfNSW did not raise any objections to the Proposed Development. 3. The Site is zoned E2 Commercial Centre pursuant to the North Sydney Local Environmental Plan 2013 (NSLEP) and in relation to heritage consideration pursuant to cl 5.10 of the NSLEP, there will be no impact on any heritage items or public domain amenity in the locality. 4. 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. Notations: 1. The Court notes: 1. North Sydney Council as the relevant consent authority has, pursuant to cl8 of the Environmental Planning and Assessment Regulation 2021, consented to the following amendments to development application No. DA 223/23: Architectural plans prepared by Diadem, Issue 05: Sheet No. Description Date 3. Building location 31 January 2024 4. Signage locations 31 January 2024 1. 5. North elevation signage layout 31 January 2024 6. South elevation signage layout 31 January 2024 7. East elevation signage layout 31 January 2024 8. Indicative construction details – Crown section 31 January 2024 9. Indicative construction details – Letters section 31 January 2024 1. The Amending plans were filed with the Court with the s 34 Agreement on 12 February 2024. Orders: 1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away in the amount of $7,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of this order. 2. The appeal is upheld. 3. Development application No. DA 223/23 lodged on 19 July 2023 for the removal of existing three 'AAMI' signs off north, south and east elevations plant room facades, repaint the plant room facades and install three new 'Storage King' signs north, south and east in the same locations at 99 Walker Street, North Sydney NSW 2060 (also known as Lot 101 DP 748911) is determined by the granting of consent, subject to the conditions set out in Annexure 'A'. ………………………. E Espinosa Commissioner of the Court Annexure A (276121, pdf) Plans (26512844, 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: 19 February 2024