Land and Environment Court of New South Wales CITATION : Shenstone & Charles Pty Limited v Waverley Council [2006] NSWLEC 344 APPLICANT Shenstone & Charles Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11563 of 2005 CORAM: Moore C Development Application :- KEY ISSUES: Impact of advertising signs . DATES OF HEARING: 11 April 2006 EX TEMPORE JUDGMENT DATE : 04/11/2006 APPLICANT Mr G Green, solicitor Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 11 April 2006 11563 of 2005 Shenstone & Charles Pty Limited v Waverley Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 concerning premises at Shop 2/10 Jacques Avenue, Bondi Beach, which is a commercial retail premise occupied by a real estate agency in the Richardson & Wrench franchise. It is a partly below ground level, partly above ground level, arcade shop. 2 The application which is the subject of the present proceedings seeks consent to erect two flat unilluminated signs on the façade of the building and two illuminated box signs at right angles to the building. The matter now comes as proposed consent orders. 3 I had the opportunity of inspecting the site this morning with Mr Green, solicitor for the applicant, and Mr Patterson, solicitor for the council, and their advisers. During the course of that view, I had the opportunity of an informal discussion with Mr Pullford, one of the residents who had objected on behalf of the body corporate of 24 Lamrock Avenue, which is a block of units on the opposite side of Lamrock Avenue to the site, the site being on the corner of Lamrock and Jacques Avenue. 4 Mr Pullford indicated that, from the perspective of his body corporate, the alteration to the hours of operation and the diminution of the strength of the illumination of the signs resolved the matters that were of concern to his body corporate. 5 I also have a written objection contained in the council's bundle from the residents of the premises on the upper level on the opposite side of Jacques Avenue from the premises, being Mr Clark and Ms Rees. I have familiarity with their premises and with the site as a consequences of two earlier sets of proceedings in which I had taken part – one being the original approval for the building and the other being a subsequent proposed modification to its upper levels. 6 As a consequence of my familiarity with the site and the relationship between the Clark/Rees residence and the shopfront, which is the subject of this application, I am satisfied that subject to the now revised proposed conditions that the signs are acceptable. They are acceptable for two reasons. 7 The first response to the objection put by Mr Pullford's body corporate, which deals with the general opposition of any advertising signs on the whole site, is that the premises are mixed use premises and it is clearly envisaged that there would be a commercial activity on the ground floor at the location involved. As a consequence, it would be manifestly unreasonable to refuse to have any form of advertising or identification permitted for those premises. 8 With the respect to the objection concerning light impacts of the proposed signage, I am satisfied, as acknowledged by Mr Pullford, that the requirement that the lights cease to illuminate the signs at 10 pm is an appropriate restriction on the illumination. The amended conditions of consent will require that the signs can only be illuminated between 8 am and 10 pm and that they are subject to two further requirements that; - There be automatic time clock mechanisms that enforce those hours; and - After consultation with the applicant's expert, the requirement will be that a maximum of three 36 watt white fluorescent backing type luminaries will be the only permitted form of illumination of the signs. 9 The second of these requirements will have the effect of providing internal illumination to the corporate logo material and the signs and no effective illumination of either the building within which they are located or the footpath below. 10 As a consequence of that I am of the view that the appeal, by consent, should be upheld subject to the conditions which will be incorporated in the orders. Tim Moore Commissioner of the Court 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.