Procter v Eurobodalla Shire Council [2008] NSWLEC 22

Land and Environment Court of New South Wales

CITATION : Procter v Eurobodalla Shire Council [2008] NSWLEC 22

Applicants: William Frederick Procter and Susan Margaret Procter PARTIES : Respondent: Eurobodalla Shire Council

FILE NUMBER(S) : 10388 and 11168 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application :- s 211B Order to remove advertising signs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 15/01/2008

EX TEMPORE JUDGMENT DATE : 15 January 2008

Applicant: LEGAL REPRESENTATIVES: Mr Geoffrey Knox, solicitor Respondent: Mr M McMahon, solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

15 January 2008

11168 of 2007 10388 of 2007 William Frederick Procter and Susan Margaret Procter v Eurobodalla Shire Council

JUDGMENT 1 Senior Commissioner: Appeal 10388 of 2007 is an appeal against an Order made by Eurobodalla Shire Council on 17 April 2007 under s 121B of the Environmental Planning and Assessment Act 1979 to remove eighteen of the nineteen existing exterior advertising signs on the property on lot 2 sec6 DP 75688, known as 44 Sydney Street, Mogo. Appeal No 11168 of 2007 is an appeal against the determination of a development application in respect of the nineteen existing external advertising signs on the above property. The consent permits only one of the nineteen signs applied for. 2 The premises at 44 Sydney Street accommodate three businesses: an ice cream shop, a retail shop trading in "lifestyle" products and an outdoor café. The property is listed as a heritage item. 3 The parties have agreed to pursue the appeal in a conference pursuant to s34 of the Land and Environment Court Act 1979. In compliance with s34(3)(a), they negotiated in order to reach an agreed position. While they did not reach full agreement, the conciliation session ended in positions that were closer to each other than they were before the session. At the end of the conciliation session, the parties agreed to my disposing of the matter pursuant to s34(3)(b)(ii). 4 Three objectors attended the conference: Ms Coretta Bride, the owner of Mogo Tearooms; Mr Barry Cavanagh, the owner of the adjoining commercial development containing seven shops called The Clock Tower; and Mr Zoran Pantelic, the ex-owner of the patisserie shop in The Clock Tower. 5 The dispute was complicated by the fact that the council (and the objectors) have grounds in addition to aesthetics and heritage for objecting to the profusion of signs on the property. The additional grounds are that the council disputes the lawfulness of two of the three businesses on the property, namely the retail shop and the cafe. The council has issued an Order to cease use in respect of the café, though not in respect of the shop. For this reason the council wants those signs that refer to unlawful activity removed, even if they are acceptable from an aesthetic and heritage point of view. The applicant disputes that a lawful Order has been issued and even suggests that the Order has been withdrawn. These matters are not before the Court and, in any case, are too complex to be resolved in a s34 conference. However, they are relevant to the appeals that are before the Court. 6 In determining the matter, I had to adopt a position on what to do about those signs that cause no aesthetic or heritage problem but refer to activities of which the lawfulness is in dispute. The position I adopted is that signs that refer to the café should be removed, while those that refer to the retail shop may remain. This is partly because of the higher probability that I assigned to the council approving the retail shop than approving the café and partly because the council has not issued an Order to cease the use of the retail business, while it has done so (or at least had the intention to do so) in respect of the cafe. However, if I am wrong and the dispute about the lawfulness of the café is resolved in the applicant's favour, the applicant may store the aesthetically acceptable signs that refer to the café and reuse them later. 7 The two planning documents of relevance are the Eurobodalla Urban Local Environmental Plan 1999 (dealing with advertising) and the more area-specific Development Control Plan No 170 Mogo Village Commercial Centre. 8 The result of the agreement and decision are below, listed under eight headings referring to the type of sign.