CLAUDE NEON LID v COUNCIL OF THE MUNICIPALITY OF LEICHHARDT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, MEAGHER JJA and ROGERS AJA 13 April 1989, 13 April 1989 [1989] NSWCA 37 Building control — Advertising hoardings — Local Government Act 1919, Pt XI s317B(1A), s510 and s513 — Ordinance 55 — Licence for advertising structure granted by council under Ordinance 55 — Subsequent order by council under s317B(1A) to demolish the structure — Applicability of Pt XI to advertising structures Whether s510 and s513 (and Ordinance 55) exclusive source of powers of councils in relation to advertising structures Repugnancy between Part XI and s510 and s513 — Held affirming Land and Environment Court (Cripps J) that there was no repugnancy and order of council under s317B(1A) was validly made. Hope JA Capital Holdings Australia Pty Ltd owned at the relevant time the building known as 281 Broadway, Glebe. On 27 October 1986 the Leichhardt Municipal Council, within whose area the property is situated, gave a notice to the owner under s317B(1A) of the Local Government Act 1919 ordering the demolition of an advertising structure mounted on the roof of the building. Before that notice was given the appellant, Claude Neon Limited, had applied to the Council for a licence under Local Government Ordinance 55 for an advertising structure, and presumably associated advertising on that roof sign. There had been a sign erected on the roof of the building for many years. The subject sign was erected in 1985 to replace the previous sign. The licence which was granted to the appellants on 7 March 1986 was to erect or display an advertising structure on those premises during a period ending 31 December 1988. The appellants, not wishing to demolish the structure or to have it demolished, took proceedings in the Land and Environment Court for a declaration that the Council had no power to give the owner the notice under s317B(1A). The application came before Cripps J, who refused to make the declaration. It was put to his Honour that the provisions of Pt XI of the Local Government Act which deal with building control, and the provisions of s510, s513 and s530 of the Local Government Act, the first two sections dealing with the granting of permission for advertising structures and for advertisements and the making of ordinances in that regard respectively, were repugnant to each other, that Pt XI was a general provision and that s510 and s513, coupled with Ordinance 55 (made under s513 and other provisions of the Act), provided an exclusive code for the regulation of the erection of advertising structures. Applying the test laid down by Deane J in Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Livestock Corporation 29 ALR 333 at 347, his Honour concluded there was no such repugnancy and that the Council had power to give the order under s317B(1A). The appellant repeated in this Court the submissions which were made in the court below. I have little to add to what Cripps J said. In my opinion there is no such repugnancy as will attract the application of the principle described by 2 UNREPORTED JUDGMENTS Deane J. It is necessary first to consider and compare the provisions of Pt XI on the one hand and s510 and s513 on the other hand. I do not think that for relevant purposes it is appropriate to go to the provisions of Ordinance 55, save perhaps to understand the extent of the power which is conferred by s510 and s513. However, I see no inconsistency or repugnancy which would preclude or avoid the necessity of seeking consent under both Pt XI and s510 and thus Ordinance 55. It is true that in many respects Pt XI contains general provisions and applies to buildings, which term includes structures generally. It would be unarguable that were it not for s510 and s513, Pt XI would apply to any advertising structure. As it seems to me, that Part applies notwithstanding the presence of the statute of those later sections. Cripps J referred to the existence until recently of the provisions of s319 in Pt XI of the Local Government Act which empowered the Governor to prohibit the erection or use of advertising hoardings in a proclaimed residential district. That would suggest in itself that s510 and s513 and any ordinance made thereunder were not intended to be exclusive sources of power in councils in relation to the erection of advertising structures. Again, Pt XI confers a power on councils in 308 to fix buildings lines. In my opinion, if a council fixed a building line, it could not approve of the erection of an advertising structure between that building line and the adjoining street unless it removed or rescinded that building line. That alteration or rescission would be effected under Pt XI of the Act and not under s510 or s513. There are other provisions in Pt XI which seem to me to point to the non-exclusivity of the provisions of s510 and s513 and of Ordinance 55 as the source of a council's power in relation to the erection of advertising structures. It is not I think irrelevant also to note that it is not in issue that in appropriate cases it would be necessary for any person erecting an advertising structure to apply for and to obtain planning approval. That approval is now applied for and given under the provisions of the Environmental Planning and Assessment Act. However, before the enactment of that statute the application would have been made and the approval would have been given under the provisions of Pt XIIA of the Local Government Act, or of an ordinance made under that Part. It is true that planning considerations are not co-extensive with the considerations which are applicable under Pt XI and under s510, but nonetheless there is a large amount of common ground between all three. Applying the test stated in the judgment of Deane J, I have concluded that there is no such repugnancy as would exempt the appellant from obtaining an approval under Pt XI of the Local Government Act for the erection of the advertising structure, and likewise I find no repugnancy between the provisions of s510 and the provisions of s317B(1A) pursuant to which the Council made the order for demolition. It is submitted that there are analogous provisions to those in s317B(1A) in Ordinance 55. No doubt there are fairly similar provisions, but in my opinion, insofar as it is relevant, the existence of those provisions does not avoid the necessity of obtaining building approval under Pt XI or the application of Pt XI generally to a structure which is an advertising structure for the purposes of s510. In my opinion the appeal should be dismissed with costs. HOPE JA: The appeal is dismissed with costs.