Land and Environment Court of New South Wales CITATION : Fishfood Holdings Pty Ltd v The Hills Shire Council [2010] NSWLEC 1127 APPLICANT Fishfood Holdings Pty Ltd PARTIES : RESPONDENT The Hills Shire Council FILE NUMBER(S) : 10208 of 2010 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- conversion of an existing take away shop to another take-away food shop - signage Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2005 State Environmental Planning Policy No 64 -.Advertising and Signage Baulkham Hills Development Control Plan Signage DATES OF HEARING: 18 May 2010 EX TEMPORE JUDGMENT DATE : 18 May 2010 APPLICANT Mr A Walmsley, solicitor SOLICITORS A R Walmsley & Co LEGAL REPRESENTATIVES: RESPONDENT Mr C Winn, solicitor SOLICITORS The Hills Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 18 May 2010 10208 of 2010 Fishfood Holdings Pty Ltd v The Hills Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by The Hills Shire Council (the council) of Development Application No. 271/2010/HC for the conversion of an existing take away shop (a delicatessen) to another take-away food shop (KFC), including dine in, drive-through and walk up window facilities and signage at 2 Commercial Road, Rouse Hill (the site). 2 The building to house the proposed take-away food shop forms part of the Mean Fiddler Hotel complex. The principle signage for the hotel is a pylon sign of a height of around 10 m, 2.4 m wide and located on Windsor Road around 25 m from the intersection of Commercial Road. An identified heritage item of regional significance (the Former Royal Oak Inn) is used as part of the hotel complex. 3 On 13 May 2010, the council issued a development consent for the proposed development however not all conditions in the development consent were acceptable to the applicant. The conditions in dispute were: - Condition 1: this condition identifies the approved plans but also contains a requirement for the "Deletion of main pylon sign". - Conditions 13 and 29: these conditions address operating hours but are inconsistent with each other as condition 13 requires an overall closing time of 10 p.m. whereas condition 29 provides for the drive-through and walk up window facilities to operate til 12 midnight 7 days per week. There was agreement between the parties that the inconsistency between the conditions could be addressed through the deletion of the words "An overall closing time of 10 p.m." in condition 13. 4 Mr Walmsley, for the applicant, made an application to amend the appeal to an appeal under s 97(2) of the EPA Act as the dispute now centred on "a condition opposed under section 80A(2)". Leave was granted for this amendment. 5 The proceedings were conducted as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act), initially on site and later at the council's library at Rouse Hill. On site, Superintendent Waites, Senior Constable Crick, the Traffic Supervisor and Constable Walker, the Crime Prevention Officer from The Hills Local Area Command provided evidence. Superintendent Waites and Constable Walker opposed the proposed hours of operation and particularly the walk up window facilities given the poor record of the Mean Fiddler Hotel for anti-social behaviour, assaults and drink-driving incidents. In their opinion, this facility would encourage patrons to congregate at the site after leaving the hotel. Senior Constable Crick indicated potential safety issues with intoxicated patrons using the car park to gain access to the walk up window facility, as well as concerns regarding right turn movements out of the site. 6 The matters raised by the officers of The Hills Local Area Command were also provided to the council in their assessment of the development application, including the attachment of their letters of objection to the report of the council officer. The council officers report addresses their concerns in some detail and while the conclusions of the council officers do not align with the concerns of the police officers, I am satisfied that full and proper consideration has been given to their concerns by the council and it is not necessary to reconsider the matters raised by the police. 7 The remaining issue in the proceedings relates to the main pylon sign. The council maintains the proposed sign, measuring 8.5 m in height, 2.1 m in width at the top, around 1.2 m at its base and containing the letters "KFC", the words "Drive Thru" and a head and shoulders portrait was unacceptable because it would create a proliferation of signs on the site, use an uncharacteristically large proportion of unsympathetic red polycarbonate material and unacceptably impact on the nearby heritage item. 8 Following further discussions between the parties, no agreement was reached and the conciliation conference was terminated in accordance with s 34(4) of the Court Act. The parties consented to me disposing of the proceedings forthwith (s 34(4)(b)(i)) and on the basis of what had occurred at the conciliation conference (s 34(4)(b)(ii)). 9 During the conciliation phase of the proceedings, the applicant had proposed a number of amendments, including the deletion of the proposed 6 m high by 3.1 m advertising sign over the entrance to the take-away shop and the use of solid materials, similar to that of the existing pylon sign for the hotel, except for the area of the letters "KFC", the words "Drive Thru" and the head and shoulders portrait which are to be illuminated. There was also some misunderstanding on the site view as to the location of the proposed pylon sign. While the plans indicated the pylon sign to be located on the corner of Windsor Road and Commercial Road, the sign is to be located in Commercial Road around 20 m from a corner. 10 The site is zoned Residential 2(c) (Tourist Village) under the provisions of Baulkham Hills Local Environmental Plan 2005. The relevant planning documents for signage are Baulkham Hills Development Control Plan Signage (the Signage DCP) and State Environmental Planning Policy No 64 -.Advertising and Signage (the Policy). The Signage DCP addresses signage in terms of zoning and given the residential zoning of the site but with the commercial hotel operation, the residential provisions are not suitable in this case. The Signage DCP has the following relevant aims and objectives: (i) Ensure a high standard of advertising signs and structures within the Shire having regard to the existing amenity and scenic quality of the area. (ii) Ensure through design, construction and use of materials, that advertising signs and structures are in sympathy with development in the vicinity. 11 The Policy defines the sign as a "business identification sign". Clause 8 provides that consent must not be granted unless the signage is consistent with the objectives of this Policy is set out in clause 3(1)(a) and satisfies the assessment criteria are in Schedule 1. The relevant aim is to ensure compatibility with the desired amenity and visual character of an area (cl 3(1)(a)(i)). Schedule 1 contains a number of criteria for assessment. 12 In considering the applicants amended proposal against the requirements of in the Signage DCP and the Policy, I am satisfied that the proposal is satisfactory because the signage: - has attracted no objection from the NSW Heritage Office, - is located in Commercial Road, rather than Windsor Road where it may compete with the existing signage in terms of visual impact, - is smaller than the existing signage, - is sufficiently separated from the existing signage to not create an unacceptable visual agglomeration of signs, - has no impact on the significance of the heritage item on site, - is substantially constructed of material similar to the existing signage, and - is limited in the amount of illuminated area. 13 For these reasons the proposed pylon sign is consistent with the aims of the Signage DCP and the aims and requirements in Schedule 1 of the Policy. Orders 14 The Orders of the Court are: 1. Appeal upheld. 2. Conditions 1, 2 and 13 of development consent no. 271/2010/HC are amended to read as follows: 1. Development in accordance with submitted plans The development being carried out in accordance with the approved plans and details except where amended by other conditions of consent. REFERENCED PLANS DRAWING NO. DESCRIPTION REVISION DATE 2361/A01 Site Plan and Signage Plan G 21 May 2010 2361/A03 Proposed Floor Plan C Undated 2361/A04 Elevations B Undated No work (including excavation, land fill or earth reshaping) shall be undertaken prior to the issue of the Construction Certificate, where a Construction Certificate is required. Note: This does not apply to Development Applications for Demolition. 2. Approved Signage Consent is granted to the following signs: * One (1) drive through directional sign (inside Commercial Road entrance); * One (1) pole sign (west side of building); * Two (2) top hamper signs (one over each entry to building); * A drive-through height bar and menu board sign; and * One (1) main pylon sign (south western side of the site fronting Commercial Road – see Attachment 1). Any alteration to signage and erection of additional signage will require further approval of Council. 13. Compliance with Requirements of NSW Police The proposed development is to be undertaken in accordance with the requirements of the NSW Police – Local Area Command dated 15 September 2009, 15 December 2009 and 9 March 2010 comprising the following:- * Lighting shall meet minimum Australian Standards ensure suitable visibility, with specific regard to the car park area; * Use of full high resolution CCTV coverage to monitor the premises, drive-through and surrounding car park area. The CCTV is to be able to record registration plate details; * Minimum staff levels be maintained to ensure that no staff member is ever left alone; * Implementation of space management strategies to include activity coordination, site cleanliness, rapid repair of vandalism and graffiti, the replacement of burned out pedestrian and car park lighting and removal or refurbishment of decayed physical elements; * Provision of 3 table stools outside the entrance as per the site plan is to be provided. * Provision of security staff by the owner in particular at closing time. 3. Each party to bear its own costs. 4. The exhibits are returned. ____________ 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.