Land and Environment Court of New South Wales CITATION : Stallones Group Pty Ltd v The Council of the City of Sydney [2009] NSWLEC 1246 APPLICANT Stallones Group Pty Ltd PARTIES : RESPONDENT The Council of the City of Sydney FILE NUMBER(S) : 11140 of 2008 CORAM: Murrell C KEY ISSUES: SECTION 97 APPEAL :- signage Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Development Control Plan 1997 South Sydney Local Environment Plan 1998 The City of Sydney Signage and Advertising Structures Development Control Plan 2005 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 1 May 2009, 4 May 2009 EX TEMPORE JUDGMENT DATE : 4 May 2009 APPLICANT Mr P Clay (Barrister) SOLICITOR LEGAL REPRESENTATIVES: HPL Lawyers RESPONDENT Ms L M Byrne (Solicitor) of The Council of the City of Sydney JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 4 May 2009 11140 of 2008 Stallones Group Pty Ltd v City of Sydney Council This determination was given extemporaneously and is edited prior to publication JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 for the property known as 228 William Street, Woolloomooloo that is on the corner of Brougham Street. The site is on the northern side of William Street in the vicinity of the Kings Cross intersection with Darlinghurst Road. 2 The applicant in these proceedings is seeking approval for (as, described in the development application submitted to the City of Sydney Council), the illuminated neon lights and signs that have been placed around the exterior of the O'Malley's Hotel. This includes: the red and green strip lights around the awning/gutter; with the O'Malley's all green sign on the fascia of the corner of the building and the 888 numbers in red colour. 3 The council determined the development application by granting consent however in some respects this was tantamount to a refusal in that it required the deletion or the removal of the green and red strip lighting and the O'Malley's sign on the corner. 4 The Court has the opportunity of a view during the day on the first occasion of the s 34 conciliation conference and also the opportunity of a night time inspection to observe the context and the location of the subject site and the impact of the lighting on the adjoining area. At this stage I should say by way of background that the application is for the use of what are existing lights on the premises known as the O'Malley's Hotel. 5 The applicant provided a statement of contentions and contends that the conditions of consent should be deleted because: 1. the building is located within the Kings Cross business district within an area that has a significant pedestrian access. Furthermore the applicant contends the signage used is consistent with the signage within the business district of Kings Cross and within close proximity of the site. 6 Secondly it is contended, the building is located in close proximity of the heritage listed Coca-Cola sign and does not cause significant social or locality impact. 7 Next the applicant contends, the installation of the awning lights adds light to the area commonly used by pedestrians. And finally the conditions imposed by the council were considered to be unreasonable and unnecessary in the circumstances of the case. 8 The conditions in issue that council imposed are outlined in the council officer's report as follows: The design of the building must be modified as follows: a) the eastern most under awning sign facing William Street is deleted and does not form part of this consent. The sign shall be removed within 40 days. b) the western most under awning sign facing William Street is to be relocated in the front of the doorway leading to the accommodation level above and must maintain a clearance height of 2.6 metres from the footway. c) the illuminated littering on the awning fascia is deleted and does not form part of this consent. The lettering shall be removed within 30 days from the date of the consent and replaced with a painted sign displaying O'Malley's Hotel in a format similar to the existing website address and phone number. d) the neon lighting around the fasciae and the above awning lights are deleted and do not form part of this consent. The unauthorised lighting shall be removed within 30 days. The amended plans are to be submitted illustrating compliance with the above conditions." 9 The council responds to the applicant's contentions as follows: "The City of Sydney encourages a village type of town planning where diversity and unique qualities in different areas is desirable. In this instance the O'Malley's Hotel is located within the William Street special precinct which the city has envisaged that future development should aim to minimise visual clutter associated with the signage and achieve an appropriate balance between building form and dominance of signing, whereas nearby Darlinghurst Road, north of William Street intersection, is encouraged to incorporate imaginatively designed, illuminated and animated signs and particularly neon. In response to condition two the Coca Cola sign is not a heritage item but it has been in the area since the seventies. The sign is an outstanding city landmark and highlights the gateway to the Kings Cross entertainment area. The unauthorised signage and illumination on O'Malley's Hotel does not contribute to land mark status. Furthermore in response to condition two, contention two, the nearest residential views to the Coca Cola sign is above the podium of which it is located. The floodlights on the O'Malley's Hotel shine above and away from the awning causing detriment to the amenity of neighbouring residential users particularly those at 230 William Street. In response to contention three, replacing light bulbs is irrelevant. In response to contention four council acknowledges that lighting below the awning provides better illumination for pedestrian movement however the green neon lighting around the awning fasciae and the floodlights above the awning do not assist pedestrian movement and are not consistent with the objectives of public and pedestrian lighting as in the City of Sydney exterior lighting strategy. In response to contention five the conditions have been imposed to ensure the signage and illumination complies with council's controls in order to achieve the desired character of the William Street special precinct, minimise excessive use of signage, advertising and illumination to protect the public interest." 10 Council also raised the following contention- "The proposed lighting and signage is incompatible with the desired amenity and visual character of the area. It is not of high quality design and finish and does not reduce clutter by rationalising or simplifying existing signage". 11 For the above contention the council made reference to the William Street Precinct in the South Sydney DCP 1997 and the City of Sydney Signage and Advertising Structures Development Control Plan of 2005. 12 Council also contends that the cumulative effect of the proposed O'Malley's Hotel signage and lighting does not contribute to the amenity of the commercial strip or accessibility for the public and is contrary to the South Sydney DCP. Furthermore council contends that evidence has not been provided to indicate proposed illuminated light sources do not give a natural appearance to the surroundings and do not prevent glare or excessive light spill. At the date of completion of the fourteen-day notification period four objections were received, generally related to the nuisance of the light pollution and light spill and contrary to council's DCP. 13 During the proceedings the applicant proposed that the red strip lighting to indicate the gaming facility at the rear of the hotel would be deleted and also proposed that to rationalise signage that the vertical sign on the upper wall of the premises on William Street which on one side that has the words "O'Malley's Hotel" and on the other side facing the Cross "Live music" would be deleted as well as: the two under awning signs would be rationalised by the provision of one under awning sign to the size of the largest sign; and a maximum one square metre signage on the door to the accommodation element of the premises to be on the face of that wall. As such conditions were proffered to this effect. 14 The council still contends that the amended development application in terms of the above conditions proffered is unacceptable and the council considers that the strip lighting and the O'Malley's fascia illuminated lighting on the corner should be deleted. 15 The Court had the opportunity of an extensive site inspection to understand the character of the area. In my assessment it is important to have regard to the statutory planning framework. The subject site is covered by the South Sydney Local Environment Plan 1998 and the zoning is number three, the 'Business Zone' and the objectives of this zone include: a) To encourage suitable types of mixes of business activities including retail, commercial, professional and entertainment related land uses that increase employment opportunities and contribute towards the economic and social vitality of the area. b) to permit appropriate forms of urban residential development within the zone to mutually support the vitality of the commercial strips and centres and in doing so assists successfully urban consolidation. c) to improve the amenity and accessibility of commercial strips and centres for residents, workers and visitors. d) to incorporate contemporary urban design principles in the design of buildings etcetera and a relationship with the public domain." 16 The development that is permitted and requires consent under the business zone includes advertising structures and there is no dispute that the signage as we see on the site including the strip neon lighting, is advertising for the purposes the LEP. 17 Also permitted in the zone are dwellings attached to or within a building used or intended to be used for a land use that is permissible within the zone. The zoning of the subject site is zoned business as is the block that fronts William Street from Victoria Street. Behind the subject site on the other side of the laneway there is a mixed-use zone, number ten. On the opposite side of William Street in the vicinity of the large median strip that splits off to the underpass and an access up to the Cross area. 18 The Court must have regard to the relevant development control plans and there are a number of development control plans that relate to my assessment of this application. The South Sydney DCP of 1997 provides controls for the William Street Precinct, being that: "The desired character and long term vision for William Street a pedestrian friendly boulevard edged with a diverse range of shops and attracting a mix of people. Public spaces will be enhanced, the street lined with trees and durable high quality street furniture installed. The scale of the southern side of the street will be retained and reinforced with heritage items refurbished and upgraded. Gaps in the street edge will be completed with new spaces of in fill buildings." The section focuses on William Street and its immediate urban context. This extends from the tunnel at Kings Cross and terminates at the intersection of Yurong Street, Boomerang Street and William Street and includes one block on either side of William Street. It is seen as the gateway to the CBD and was described by council as the boulevard gateway to the CBD and indeed it can be seen that the character of this area has been changed over recent years with the widening of footpaths and the planting of Plane Trees leading up to the CBD. 19 For signage and advertising contained in the DCP there are a number of objectives including: "to achieve an appropriate balance between the dominance of building forms and the dominance of signage; to minimise visual clutter associated with signage; and to minimise impact of signage on residential amenity". 20 The Signage and Advertising Structures Development Control Plan 2005 of the City of Sydney is also a relevant document for consideration and it states: "Appropriate signs identify and promote institutions, businesses and buildings as well as communicate messages. The well designed signs can contribute to streetscape character and assist people find their way round the city and inappropriate signs by way of location, poor design, excessive numbers, can create visual and physical clutter and degrade the character of streetscapes and reduce the efficiency of other appropriate signs." 21 The objectives include to consider the amenity of residential development and the visual quality of the public domain in the assessment of signage structures. There is a section in this DCP on illumination and animation, stating "excessive or special illumination schemes expressly designed for the purpose of promoting a business activity are not permitted". The DCP also states that "Illuminated signs will have a period of consent of three years". In this regard the applicant does not object to the time limited consent of three years and that is not an issue in these proceedings. 22 The map in the DCP shows the precincts and the Darlinghurst Road Precinct is shown as well as the William Street Precinct. The Darlinghurst Road Precinct is within close proximity of the subject site and there was discussion during the proceedings as to its relationship with the Darlinghurst Precinct despite the fact it falls within the William Street Special Precinct. 23 The DCP also contains provisions for the number of signs and the maximum number of identification signs generally is three. That is building name signs and one under awning sign and one awning fascia sign for each ground floor tenant with a street frontage, and one sign above the entry of a ground floor tenant with a street frontage sign in the form of a hamper sign. 24 Darlinghurst Road Precinct includes a number of provisions in that: Signs are to be visually interesting and consistent with the significant role of Darlinghurst Road as an entertainment precinct. Signs may incorporate imaginatively designed illuminated and animated signs particularly neon in interesting and aesthetic shapes where appropriate. 25 The William Street Precinct requires: i. Signs may be projecting signs of vertical proportion where existing lawful signs of this type exist and where this does not conflict with the heritage significance of buildings. ii. Signs are to be integrated with building features and sensitive to the existing character of buildings. iii. Signs have to respond to the significant role of the area as a gateway into the City of Sydney. iv. Billboard signage is not permitted. 26 On behalf of the council evidence was given to the Court by Ms Pont, a student planner with the council who also provided a statement of evidence and participated in joint conferencing. Mr Lidis, a consultant town planner provided evidence on behalf of the applicant, and prepared a statement and participated in joint conferencing. 27 The applicant provided a report from an expert in lighting Mr Shadbolt In his statement he provided an executive summary which includes that "the cold cathode neon lighting complies with the requirements of AS4282-1997 control of the intrusive effects of outdoor lighting both in terms of illuminance, spill light and illuminates glare. Similarly the O'Malley's Hotel backlit lettering also complies with AS4282. There is very little intrusion relative to AS4282 into the residential units of number 230 William Street and the higher floor level there is less intrusion and there is no distant city scape view for the units with windows facing towards O'Malley's Hotel that I have been able to find that is being compromised". The local area is a bright area at night as there is considerable ambient lighting and some of the immediately adjacent lighting provides extreme levels of illuminance. The street lighting in Brougham Street is quite intrusive to many residents of the terrace accommodation and if the two street lights adjacent O'Malley's Hotel and 230 William Street are switched on they provide a similar high level of light intrusion and flooding of the area rendering everything else insignificant. The lighting is in context and it does not exceed Australian standard requirements and complies with many of the City of Sydney requirements. The rest is a matter of personal choice and interpretation of style and colour as is most art decorative expression. 28 Although not directly triggered by the development application per se the applicant submitted that the development control plan for late night trading premises 2007 of the City of Sydney is a relevant matter to consider. The aims of the strategy in this DCP is: "The city's night time economy is an integral part of the commercial culture and social fabric and late night trading premises are an important part of Sydney social and street life that contribute to Sydney's image as a global city and play an important role in the city's economic growth." People living and working in the city as well as tourists are attracted to these places as a result of their diversity and vitality and late night trading premises can provide employment, jobs etcetera. Generally late night areas identified in the DCP are places within the City of Sydney that are already or have historically been characterised by late night trading and related activity such as Kings Cross and the CBD. 29 The objectives of this DCP include: identify appropriate locations for late night trading premises; ensure that these premises have minimal adverse impact on the amenity of residential or other sensitive land uses; encourage late night trading which contribute to vibrancy and vitality as appropriate for a global city; encourage a broad mix of night time uses and encourage a diversity of night time activity in defined areas. There are category A and category B late night trading premises, those of high impact that is category A include hotels. 30 As a hotel the subject premises would be classified as category A premises - high impact. The subject property is included in a map of the City of Sydney 'late night trading premises' and the subject site is the most western site included in the late night management areas for the City of Sydney. This covers the Kings Cross area and as I stated this property is the last on the western edge in William Street. The other properties going up into Bayswater Road and into Darlinghurst Road. 31 The late night trading area character includes strategies that "these places should be vibrant and multi-functional places where people can go late at night in safety without effecting the amenity of nearby residents. They should be vibrant places both day and night and that late trade should enhance the vibrancy". 32 The respondent did not consider that the above DCP was a relevant matter for consideration. However it would appear to me that it provides an indication in terms of what Council contemplates as the area defined by the map for late night trading premises in which the subject site is included. 33 The development control plans I must make a fundamental element or a focal point for my consideration as required by the authority of Zhang v Canterbury in the Court of Appeal where the Chief Justice of New South Wales stated that a development control plan is not an environmental planning instrument and accordingly the requirement in s 80 (2) that a consent authority must refuse an application that would result in a contravention of such an instrument does not apply to a development control plan. 34 Furthermore the prescription by s 76B of any development prohibited by environmental planning instrument does not extend to a prohibition in a development control plan. Nor can such a plan contain a non discretionary development standard that if complied with would take away a consent authority's discretion. In other words a development control plan is discretionary although I must have regard to it in terms of s 79(c)(ii). 35 The Court has made as a fundamental element the various provisions under the local environmental plan and that includes the development control plans. At the same time I must carry out a merits assessment of the application and there are circumstances in terms of the location and the context of the subject site that should be given consideration in a merit assessment of the application. 36 Strict adherence or blind compliance with development control plans is not the test in assessing developments. However, DCP's must be the central focus to guide a merits assessment while having regard to all the facts and circumstances of the case. Here this includes in the first instance that the subject site is zoned "commercial" under the LEP that also has general the objectives and I must have regard to the individual circumstances. 37 It could be seen on the view the subject site can be seen by a pedestrian standing at the top of the overpass of William Street, in Darlinghurst Road looking west down William Street. In my assessment the subject site is located at a portion of the William Street Precinct which relates very much to the Kings Cross area in terms of its topography and in terms of its location and in terms of the split in the road. It is difficult to view the subject site from William Street itself and indeed the topography and its context, together with the other more fine grained subdivision within this block and the next block, make it distinguishable or distinctive from the rest of William Street where the more one goes to the west it is characterised by very large developments and not fine grained subdivisions. 38 The subject site as I stated is zoned "commercial" and I must have regard to the objectives of the zone that I stated earlier. Also the test for the Court is not whether the complaints have been received but the test is whether the impact is unreasonable in the context of a merits assessment. The mere existence of objections whether it be objections from advertising the development application or other complaints received by the Council is not the test, there must be an assessment as to whether such objections/complaints are well founded and whether in the context of the area the expedition/complaint is reasonable or unreasonable. 39 Clearly from a holistic reading of the Council's controls the site is within a 'late night trading area' and also is zoned "commercial". The site is not only at the interface of zones it is at the interface of the two precincts in the development control plan, that is the Darlinghurst Precinct and the William Street Precinct. This does not mean I disregard the William Street provisions but I must assess it in a merits sense in terms of an expectation of what is reasonable in the zone and an expectation of what one should expect in terms of residential amenity. 40 The experts differed in terms of the impact that the proposed strip lighting has on the residential properties opposite the site. It was agreed during the proceedings that one cannot expect the same residential amenity in an inner-city location and in my assessment an inner-city location that is within an entertainment precinct or a late night trading precinct one can not expect the same residential amenity as other suburban areas. 41 The Court has the opportunity of viewing the lights from within one of the flats at number 230 William Street, the building were three objections to the development application. The applicant agreed to remove the red strip lighting and in my assessment it is not necessary to remove the green strip lighting. The green strip lighting falls under advertising as it provides for identification of the establishment. 42 I am also satisfied that the objectives of the rationalisation of signs is achieved by the conditions proffered by the applicant. That is by the removal of two signs, by the removal of the red strip lighting which was seen to be more intrusive on the view than the green strip lighting. 43 In this location residential development co-exists with the entertainment precinct and late night trading and there cannot be an expectation that there would be the same amenity or lack of lights as in other areas. It could also be seen on the view that the street lighting is most noticeable within the units themselves, that is the street lighting in Brougham Street. If people wish to reside in such premises no doubt there would be an expectation that either heavy drapes or blinds would be required, in particular for bedrooms. 44 I am satisfied that the character and context of the subject site is quite different to a location one and two blocks west on William Street. For the O'Malley's sign I am also satisfied, as agreed between the experts, that this does not interfere with residential amenity. 45 The deletion of the red strip lighting is also appropriate having regard to the interface with the adjoining properties in Brougham Street to the north. These properties are ones that are not zoned commercial and one must have regard to the interface with this area in the assessment of the application. 46 The units at number 230 are permissible in the context of only residential premises used in conjunction with other uses and other commercial uses. As such it is not a residential area in the same context and in terms of an expectation of amenity. 47 The test is whether it is reasonable or unreasonable, not whether there is any impact. Development generally creates some form of impact, but the test on the Court on the merits assessment is whether that impact is unreasonable and whether there are expectations that are reasonable or unreasonable. 48 The Court must also have regard to the provisions of SEPP No 64 in its assessment and the aims and objectives of that policy is to ensure that signage is compatible with the desired amenity and visual character of an area and provides effective communication in suitable locations and is of a high quality design and finish. 49 The assessment criteria also contained within this SEPP require that I have regard to the character of the area and whether the proposed advertising is appropriate and consistent. In terms of the SEPP assessment criteria and in terms of the objectives of the SEPP I am satisfied that the proposed green strip lighting and the O'Malley's sign is satisfactory and there is no reason to warrant refusal of the use of this lighting for the subject premises. 50 The provision to minimise or the requirement to minimise visual and amenity impacts on residential properties and the fact that the residential properties opposite can see the strip lighting and the O'Malleys signage is not the test. The test is as I said is the reasonableness or otherwise in terms of the context of the subject site and in terms of its zoning and the co-location of residents a commercial area. 51 The subject site is one that whilst it is within the William Street Precinct, at the same time it does have a connection with the Kings Cross area in its location on the eastern edge of William Street and in the road configuration within the area. The site is not seen as part of the gateway to the CBD in terms of the boulevard that is envisaged for William Street leading in a westerly direction. 52 The approval of the strip lighting and the O'Malley's sign cannot be seen as a precedent. I am conscious that precedent is a relevant issue in my assessment of the merits of the application, however, there are a number of distinguishing factors as to why variation of the development control plan is warranted in the circumstances of this case. 53 Therefore in terms of my overall assessment of the application the application for the use of the green strip lighting and the O'Malley's green sign warrants approval subject to conditions. The Court will attach the conditions proffered by the applicant for the use of the green lighting and the logo of O'Malley's Hotel on the curved facia. Other conditions include that the applicant is prepared to delete the vertical upper sign on the building and the applicant is also prepared to remove one of the under awning signs with and add a sign for accommodation on the wall. This is also embraced by the Court, it is seen as a rationalisation of the signage on the building. 54 I agree with the applicant's evidence that in terms of approaching the establishment from the eastern side, that is walking down from the Kings Cross area, that the O'Malley's sign is not highly visible because of other awning signs and other structures and therefore the identification of the premises is not inappropriate by use of the curved O'Malley's sign on the fascia and the green strip lighting. I am satisfied the package of signage will not create unreasonable impacts on the residential properties and will not detract from the area in terms of its specific location. 55 The conditions that the applicant proffered concerning the rationalisation of the under awning signs and the red strip lighting must be deleted within thirty days of the consent and the under awning signs rationalised and the vertical sign removed within sixty days. 56 In terms of the condition about a new application being required before the three year period expires for the consent, this is also not objected to by the applicant. The additional words however should be added to that condition "in the event of a development application being submitted the signs may remain in place until the final determination of such an application". I note that council wishes for number 7 to be deleted 57 The applicant and the Council are to agree on a final set of conditions that are consistent with my findings above and e-mail same to the Court. 58 Therefore accordingly the formal orders of the Court in this appeal are: (1) The appeal in respect of the property known as 228 William Street, Woolloomooloo is upheld in part. (2) The development application submitted to the City of Sydney council and as amended is approved subject to the conditions in Annexure A. (3) The exhibits are returned to the parties with the exception of 4 and D. ___________________ J S Murrell Commissioner of the Court ljr/ajl 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.