Land and Environment Court of New South Wales CITATION : Calardu North Ryde Pty Limited v Ryde City Council [2005] NSWLEC 237 APPLICANT Calardu North Ryde Pty Limited PARTIES : RESPONDENT Ryde City Council FILE NUMBER(S) : 10159 of 2005 CORAM: Brown C KEY ISSUES: Development Application :- erection of two advertising signs on a pedestrian overbridge - parking in nearby residential streets- illumination nuisance - traffic safety Ryde Planning Scheme Ordinance LEGISLATION CITED: State Environmental Planning Policy No. 64 DATES OF HEARING: 28/04/2005 EX TEMPORE JUDGMENT DATE : 04/28/2005 APPLICANT Mr M. G. Craig, QC SOLICITORS Mallesons LEGAL REPRESENTATIVES: RESPONDENT Mr C. W. McEwen, SC SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 28 April 2005 10159 of 2005 Calardu North Ryde Pty Limited v Ryde City Council JUDGMENT 1 This is an appeal against the deemed refusal by Ryde City Council (the council) of Development Application No. 35/2005 for the erection of two advertising signs on a pedestrian overbridge at Epping Road, Macquarie Park. 2 The bridge has not been constructed but approval has been granted by the New South Wales Roads and Traffic Authority (RTA) for its construction; the RTA being the consent authority for the bridge. 3 The proposal involves the installation and display of two signs each 11.7 m in length by 1.8 m in height providing a signage area of 21.15 sq m for each sign. The signage will be internally illuminated or backlit. One sign will be above the easterly lanes of Epping Road and one sign above the westerly lanes. 4 The land adjoining the location of the proposed bridge to the north - east is within a mixed industrial and business zone. The land adjoining the bridge to the south - west is within a residential area characterised by single dwelling houses. Parts of the bridge are located outside the Epping Road road reserve and within the adjacent land. 5 The Ryde Planning Scheme Ordnance (the Ordinance) applies to the proposed development. Cl 42 provides requirements for advertising signs. Cl 42(3) allows advertising signs as part of a structure whose principal purpose is to provide improved safety amenity and convenience for pedestrians and the structure is located on or adjacent to a road. Cl 42(4) provides specific matters that are to be considered in an application for consent. 6 Development Control Plan 28B - Advertising Signs (DCP 28B) also applies to the proposed development. 7 State Environmental Planning Policy No. 64 Advertising and Signage (SEPP 64) also applies. Cl 18(2) requires the prior concurrence of the RTA for the proposed development. Details of the concurrence were provided to the Court. 8 The issues in the proceedings related generally to the potential impact of the signs on the residential areas, particularly: (1) potential for vehicles to park in the residential streets while customers and staff use the bridge to gain access to the business premises on the opposite side of Epping Road; (2) potential nuisance created by illumination; (3) potential impacts created by the distraction of the sign on driver behaviour. 9 The parties agreed to the appointment of Mr Stuart Harding as the Court Appointed town planning expert and Mr Graham Pindar as the Court Appointed traffic expert. Further evidence was provided by Mr Chris Hallam, the applicant's traffic consultant, and Ms Sue Wetherley, a town planner employed by the council. 10 The issue of vehicles using Ryrie Street and other nearby streets was raised by Mr Pindar as a potential problem. He states there is the potential for westbound drivers to park in the adjoining residential precinct and use the bridge for access to the adjacent businesses. This concern is highlighted when the bulky goods establishment currently being constructed at the east of the bridge is a potential advertiser on the bridge. In raising the issue, Mr Pindar states there are various options available to address his concerns. 11 Mr Hallam acknowledges that parking in the residential areas could occur but does not raise his concern to the same level as Mr Pindar. He states that consumers of bulky goods products are not generally impulse shoppers and that their journeys are planned. For this reason, the onsite parking facilities of the bulky goods establishment are likely to be used. Overall, he concludes that any potential adverse impacts would be far outweighed by the benefits that the bridge would bring for both customers and staff of businesses and the local residents commuting by bus. 12 In addressing this issue, Mr Pindar and Mr Hallam propose a condition that seeks to address any increased parking in the residential area around Ryrie Street. The condition proposes a survey prior to the construction of the bridge and a comparative survey 12 months after the operation of the bridge. Depending on the findings of the comparative survey, the applicant may be required to fund appropriate traffic management measures. 13 In accepting the agreed evidence of Mr Pindar and Hallam that it is not possible to accurately estimate the potential impact on the residential streets brought about by the advertising signs, I accept that the condition addresses any potential impacts in a suitable manner. 14 The issue of nuisance created by the illumination of the signs was raised by a number of residents in their submissions to the council and on site. The properties at No. 30 Epping Road and No. 67 Morshead Street were inspected in relation to this concern. 15 Mr Harding addressed the issue of illumination and concludes that in the case of No. 30 Epping Road the signage will only be visible from an acute angle and that the lighting in the street and passing traffic are more likely to generate illumination concerns. 16 For the property at No. 67 Morshead Street, Mr Harding states that the signage is almost perpendicular to the dwelling and is separated from the signage by another dwelling. He concludes that the sign will have little or no impact on the occupants of the property. 17 With the benefit of the site view, I concur with the conclusions of Mr Harding. I also note that the level of illumination is controlled by a condition that is acceptable to the applicant. 18 Mr Pindar and Mr Hallam addressed the issue of traffic safety being compromised by the distraction of the signs. Both agreed that the signage, with appropriate controls on the type of signage, would not impact on the safety of motorists. I agree with this conclusion. 19 Of the council's draft conditions of approval, the applicant objected to the following conditions. 20 Condition 4 requires the illumination of the signs to be switched off between 11pm and 6am. 21 Because of the existing environment of Epping Road, including the existing lighting traffic and considering the limitation on illumination, the impact of the signage is not likely to have any significant impact on the nearby residential area. For these reasons this condition can be deleted. 22 Condition 23 seeks to place restrictions on the use of the advertising signs by the occupier of the bulky goods establishment currently being constructed at the east side of the bridge. The councils concerns were based on the potential for vehicles to park in the residential streets while customers and staff use the bridge to gain access to the business premises on the opposite side of Epping Road, around Ryrie St. 23 The applicant proposed two variations on the condition. Their primary position was that the condition should state that signage should not direct motorists to park in the residential areas on the opposite side of Epping Road. Their secondary position was that the condition should reflect the fact that unless Ryrie St is closed, fully or partially, signage should not indicate the location of retail/commercial outlets on the northern side of Epping Rd. 24 While not disagreeing with the applicant's secondary position the council's sought the condition to be dependent on a reference to the traffic study undertaken as part of condition 26. 25 In balancing these particular submissions, and considering the uncertainty of traffic on the nearby residential areas (see par 13), I agree with the council's submission on condition 23. 26 Condition 27 requires compliance with any approval issued by the RTA. 27 The RTA has a concurrence role for the advertising and, while the RTA may independently enforce its requirements, I see no practical reason why the requirements should not be reinforced through a condition of consent. I also note that in the concurrence letter of 13 April 2005, the RTA requires the conditions of consent to include their specific requirements. 28 For these reasons the orders of the Court are: 1. The appeal is upheld. 2. Development application No. 35/2005 for the erection of 2 advertising signs on a pedestrian overbridge at Epping Road, Macquarie Park, is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits F and 9. __________ G T Brown 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.