Land and Environment Court of New South Wales CITATION : Claude Group Pty Limited v Willoughby City Council [2005] NSWLEC 4 APPLICANT Claude Group Pty Limited PARTIES : RESPONDENT Willoughby City Council FILE NUMBER(S) : 11222 of 2004 CORAM: Brown C Development Application :- erection of sign KEY ISSUES: impact on residential amenity integration with building design Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 64 DATES OF HEARING: 14/12/04 DATE OF JUDGMENT: 01/19/2005 APPLICANT Mr C Ireland, solicitor SOLICITORS Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Ms E Duenow, solicitor SOLICITORS Mallesons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 19 January 2005 11222 of 2004 Claude Group Pty Limited v Willoughby City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the imposition of a deferred commencement condition by Willoughby City Council (the council) on DA 2004/70(C) for the erection of a sign on the building located at 207 Pacific Highway, St Leonards (the site). The deferred commencement condition 2 The deferred commencement condition states: 1) Amended plans are to be submitted which delete the current signage and replace it with signage limited to the southern (highway facing) facade in the following form: A. The sign (being dimensioned 8.3 m by 2.1 m and fronting Pacific Highway) is to be relocated to with any area nominated for future signage on the southern (Highway facing) elevation under the original consent Plan's (under Development Consent No 2000/1103 dated 30 Jan 2001 approved plan no. DA-551 issue C dated30/10/00) B. The sign is to be centred mid way of this designated signage area and is not to project above a height of RL 122. This south facing sign is to be attached to the outer face of the louvred plant room wall and not projecting generally more than 600 mm from the louvres/plant room wall. C. The content and size of lettering/characters shall remain unchanged from that show on the latest submitted amended plans. D. Illumination of this south facing advertising structure is to be time clocked to switch off no later than 10.00 pm each night. This shall be noted on the plans. The application 3 The application seeks to delete the deferred commencement condition to allow for the installation of a part illuminated and part non - illuminated sign to the building located on the corner of Herbert Street and the Pacific Highway, naming the major tenant as AUSTCORP and their logo. The proposed sign is to be located near the top of the south - eastern corner of the 11 storey building, positioned in front of rooftop louvres approved (but not yet installed) to screen future plant and machinery. The proposed signage is to extend around the corner of the building on both elevations (See Attachment 1). 4 The south facing sign (to the Pacific Hwy) has overall dimensions of 8.3 metres by 2.1 metres. The word AUSCORP has dimensions of 7.45 metres by 0.964 metres. The east facing sign (to Herbert St.) has overall dimensions of 9.5 metres by 2.1 metres. The word AUSCORP has dimensions of 6.505 metres by 0.842 metres. Also included within the east facing sign is a stylised kangaroo corporate logo. This logo has dimensions of 2.036 metres by 0.763 metres (See Attachment 2). 5 The south facing sign is to be illuminated until 10.00 pm each night while only the stylised kangaroo logo and not the lettering or the background to the logo is to illuminated on the east facing sign. The illumination of the logo is also to be switched off at 10.00 pm each night. The planning controls 6 State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64) applies to the proposed development. Clause 18 requires the consent authority to be satisfied that the proposal is consistent with the objectives of the policy and that the application satisfies the assessment criteria in Schedule 1. 7 Willoughby Local Environmental Plan 1995 (the LEP) applies to the proposed development. Clause 9(3) requires that the consent authority must not approve signage where it is considered to "interfere with the amenity of locality". 8 Development Control Plan 20 - Advertising and Advertising Structures (DCP 20) applies to the proposed development. Clause 2.1 contains general provisions to be taken into account in the design and placement of advertising structures. Clause 3.2 contains special provisions relating to advertisements and advertising structures in Business zones. 9 Development Control Plan 24 - 207 Pacific Highway, St Leonards (DCP 24) is a site specific development control plan applicable to the site. Clause 2.1 provides aims and objectives for the development of land, cl 3.4 incorporates objectives and controls relating to setbacks and streetscape and cl 3.5 contains objectives and controls for facade design. The issues 10 The issues in the appeal centre on two main areas. These are: 1) whether the proposed signage creates unacceptable amenity impacts on nearby residential development, and 2) whether the location of the proposed signage integrates acceptably into the overall design of the building. 11 In addressing the issues, the parties agreed to the appointment of Mr Harvey Sanders as the Court appointed town planning expert. Amenity impact 12 The potential impacts on amenity relate to the 23 level residential component of the Forum West development. It is located on the opposite side of Herbert Street and further to the north than the subject site. The subject building can be generally viewed diagonally from this residential development. 13 In considering the application, the council advised 291 residents from the Forum West residential development of the most recent amendment (although only approximately half are potentially affected) and received four objections from this development. As part of the site view, the Court visited Unit 1802 and Unit 2101 accompanied by their respective owners, Ms Wong and Mr Dadswell. They indicated at this time that their concerns related principally to the illumination of the east facing sign and the visual impact of the signage from the Forum West residential development. I did not understand there to be any significant objection to the south facing sign. 14 On this issue, Mr Sanders states that it would be open to the Court to find that there are sound town planning, urban design and residential amenity grounds to justify the retention of the deferred commencement condition, in that the signage could be found to be unacceptable on such grounds. 15 On the issue of illumination, the Assessment Criteria in Schedule 1 of SEPP 64 raise a number of matters. These relate to glare, safety, the impact on the amenity of any residences, intensity and whether the illumination is subject to a curfew. Clause 3.2.2(a)(iii) of DCP 20 requires that "care must be taken to avoid any likely nuisance to nearby residences as a result of glare or light spillage. Illuminated advertisements visible from such adjacent areas may only operate until 10 pm are to be fitted with automatic time clocks as well as suitable baffles and screened as appropriate". 16 Glare is addressed in documentation by Global Perspectives provided with the development application. It concludes that light will not project more than five metres from the sign. For this reason, the report concludes that it is unlikely that illumination of the sign would result in unacceptable glare, given that the Forum West development is located approximately 40 metres to the northeast of the sign. This was a conclusion not challenged by the council. 17 Safety is not likely to be an issue because of the location of the sign. 18 With the benefit of the site view, there are a number of reasons why the illumination will not unacceptably impact on the amenity of any residences. Firstly, the illuminated area is relatively small and limited to the area of the logo only. Secondly, the illumination is to be switched off at 10 p.m. every night. Thirdly, the roof area of the building is already illuminated and with the likely internal illumination of the building, the additional area illuminated by the logo is very small, at best. Fourthly, the illuminated part of the sign is some 40 m and at an oblique angle to the residential units. 19 Visual impact is addressed in the Assessment Criteria in Schedule 1 of SEPP 64. In terms of character, cl 1 asks whether the proposed sign will be compatible with the existing or desired future character of the area. Clause 3.2.1 of DCP 20, under the heading of Business Zones, has a Performance Requirement that requires advertising to "not unduly intrude upon the amenity of adjacent residential properties or public open space". Clause 3.2.2(a)(iii) of DCP 20 further states that signage " be discreet and suitably located to not intrude upon the local amenity of any adjacent residential property or public open space. No advertisements will be allowed on a building wall abutting or facing onto a residential dwelling". 20 In relation to visual impact, I also find the sign to be acceptable. While Ms Wong and Mr Dadswell expressed the view that the sign would be unacceptable when viewed from their balconies, and in some locations from within the units, I am not convinced that the impact is so unreasonable as to warrant the refusal of the application. The westerly views from the units visited on the site view are panoramic and while the proposed sign can be viewed from some locations in these units, it occupies only a very small and less obvious part of the view catchment. It does not disturb the wider panoramic views because of its lower level and a person's more obvious attraction to the more expansive distant views. 21 Even accepting that the proposed sign will be the closest sign to the Forum West residential development, it is at an oblique angle to this development. It will form part of a visual landscape that includes a foreground of commercial buildings and some signage and more distant expansive views. I do not accept that the proposed sign will interfere with the high levels of amenity currently enjoyed by the units (and particularly the higher units) in the Forum West residential development. 22 I have also taken into account the existing or desired future character of the area, as defined by the councils planning instruments. The zoning permits a mix of residential and business or office uses. Dwellings, or residential flat buildings are permissible if attached to other permitted buildings or used in conjunction with other permitted uses in the 3(a) zone. With a mix of land uses, it is a question of finding a reasonable balance. In this case, I accept that the proposed sign achieves an acceptable balance between the reasonable expectation for signage on a commercial building and the potential impact on nearby residential dwellings. 23 While Ms Wong and Mr Dadswell objected to the presence of the sign per se, I am not convinced that this is a reasonable expectation based on the type of development permitted in the 3(a) zone. It is also not the test required by DCP 20 where a sign is not to intrude (or unduly intrude depending on what part of cl 3.2 is read) upon the amenity of adjacent residential properties. I can comfortably conclude that the sign satisfies this test. I also note that cl 3.2.2(a)(iii) of DCP 20 requires signs visible from residential areas are to be subject to limitations on the hours of operation. The hours specified in this clause are satisfied by the proposed development. 24 The council also argued that the proposed signage is inconsistent with the original approval that identified an area on the Pacific Highway frontage for building identification. While this may be the case, it does not preclude the submission of a further application to change the location of any signage. 25 For the reasons mentioned in the preceding paragraphs, I find that the signage does not conflict with any of the requirements in SEPP 64, the LEP or DCP 20. Sign location and integration with the building 26 The signage is to be erected on metal louvres approved by the council in November 2002 (DA 2002/1398) for the screening of plant and machinery. The metal louvres have yet to the constructed. 27 Mr Sanders states that the louvres were approved on the basis that they would only be needed if the area were required for further plant and machinery. He further states that the Court may come to the view that the nature of the signage and its associated structures is different from the approved louvred screening in respect of the manner in which it relates to the design of the building. While the louvred screens would integrate appropriately in the overall presentation of the building, the Court may come to the view that the proposed signage would not. 28 This matter is addressed by cl 5 of the Assessment Criteria in Schedule 1 of SEPP 64 where it is asks if the proposal is compatible with the scale, the proportion and other characteristics of the site or building. Clause 3.2.1 of DCP 20 requires advertising to be "informative, orderly and coordinated business identification which avoids clutter, is compatible with the scale and character of the development….". Clause 3.2.2(a)(i) of DCP 20 further requires that signage "form an integrated part of the building facade, architectural design and scale of the building". 29 In this case, the signage is to occupy the same location and area as the approved louvres. The question the Court must answer is whether the difference between the signage and the approved louvres will impact that significantly on the design of the building that it would warrant the refusal of the application. 30 In my opinion, the question must be answered in the negative. 31 The council has previously accepted the size and location of the louvres as being acceptable in terms of its integration with the building design. The change from louvres to solid construction does not, in my opinion, diminish the architectural qualities of the building to the point where the application could be refused for this reason. 32 While no details were provided on the timing or type of machinery to be installed behind the louvres, the approval is current and the louvres can be constructed at any time without further planning approval from the council. 33 Clause 3.4.2(e) of DCP 24 provides that the building is to incorporate an element or feature (other than advertising site or structure) that reinforces the corner of Herbert Street and the Pacific Highway. The proposal addresses this requirement through the provision of two vertical extensions beyond the main facade of the buildings in the area below the proposed signage. In my opinion, the proposed signage does not unacceptably impact on this feature, largely because the feature is subtle and not overly conspicuous in any event. 34 For the reasons mentioned in the preceding paragraphs, I find that the signage does not conflict with any of the requirements in SEPP 64, DCP 24 or DCP 20. Orders 35 For the foregoing reasons, the Orders of the Court are: 1. The appeal is upheld. 2. DA 2004/70(C) for the erection of a sign on the building located at 207 Pacific Highway, St Leonards is approved subject to conditions in Annexure A. 3. The Exhibits are returned with the exception of Exhibit A. ____________ 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.