Meriton Apartments Pty Limited v City of Sydney [2010] NSWLEC 1190

Land and Environment Court of New South Wales

CITATION : Meriton Apartments Pty Limited v City of Sydney [2010] NSWLEC 1190

APPLICANT Meriton Apartments Pty Limited PARTIES : RESPONDENT City of Sydney

FILE NUMBER(S) : 10775 of 2009

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT CONSENT - DEVELOPMENT CONTROL PLAN - DEVELOPMENT MODIFICATION :-

LEGISLATION CITED: City of Sydney Signage and Advertising Structures Development Control Plan 2005 State Environmental Planning Policy 64

DATES OF HEARING: 28, 29 and 30 April 2010

EX TEMPORE JUDGMENT DATE : 30 April 2010

APPLICANT Mr M Seymour, barrister LEGAL REPRESENTATIVES:

RESPONDENT Ms F Berglund, barrister

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

30 April 2010

09/10775 Meriton Apartments Pty Limited v City of Sydney

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: At the commencement of these proceedings, we undertook an interesting (if mildly neck craning) circumnavigation of Sydney's Central Business District, examining a range of signs at the upper levels of a number, quite a large number, of commercial buildings within the Central Business District. The procedural elements of this hearing have followed a similar leisurely perambulation to reach a conclusion where there are only two matters that remain for my determination. 2 There is, however, a modestly interesting metaphysical aspect to the proceedings – in that a number of the signs that we examined (including the signs that are the subject of the proceedings and the other signs owned by the applicant) are signs that, for the purposes of these proceedings, I am obliged to treat as if they did and do not exist on the city skyline. This arises as none of those signs, whether those subject to the present application or the others owned by the company, currently have development consent for their display. 3 I am, however, satisfied because of the nature of the ongoing operation of a number of the conditions of the development consent sought to be modified to regularise the signs that had originally been approved by it, remain in operation, it is legally possible for me to modify the development consent to regularise the present and some limited future operational existence of the signs. 4 The matters that remain are: o whether proper consideration of the objectives of the City of Sydney Signage and Advertising Structures Development Control Plan 2005, in particular, the provisions of cl 3.10.1 of that DCP relating to the number of signs that are to be permitted as building name signs at the upper levels of a building, act to preclude approval of the present signs; and o it being the agreed position that at least two of the signs are permissible, if I am satisfied on the merits that two or three of the signs that are subject of this application, should be permitted to remain on the merits, the period of time for which they should be permitted to so remain. 5 I do not consider that it requires a great deal of discussion to deal with either of those matters. 6 Although each side had prepared and provided, during the course of the hearing, expert evidence from a planner, much of that expert evidence related to issues that evaporated as part of the analysis of precisely what was the legal framework within which I was to proceed. The resultant oral evidence that was necessary from the planners was limited, and in this respect, I note that the evidence given by the planner on behalf of the respondent Ms Symons was given frankly and candidly and has provided me with significant assistance in dealing with the matter, although perhaps not in the fashion that her employer might have anticipated. 7 Mr Seymour, counsel for the applicant, took Ms Symons through various objectives in cl 2.2 of the DCP that are relevant to the signs in question. She candidly acknowledged that none of the objectives of the DCP were breached and that the only triggered element of the DCP is the numerical requirement expressed as a limitation contained in cl 3.10.1(i) of the DCP. 8 I have had the benefit of a variety of other assessments given by the council to applications for signs in the city. One is particularly relevant, it being an assessment given on a development application for signs on the Citibank building at 2 Park Street Sydney in 2007." 9 The planner making the assessment in that case, a planner more senior to Ms Symons in the council's assessment hierarchy, considered the question of whether those signs should be permitted even though there were four of them rather than the two contended by the council as the interpreted numerical limit arising from cl 3.10.1(i). He said when dealing with this matter, in the second paragraph of his assessment: "It is acknowledged that whilst the signs may not strictly conform to numerical provisions, they do generally meet the objectives of the Signage DCP 2005."