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. Business identification signs: three signs · In & Out North sign: this sign is approved, by agreement of the parties, subject to its size being reduced 1800x1200. · Mogo Fudge and Ice Cream sign: this sign was approved by the council in the consent, so it is not in dispute. · Courtyard Café sign: this sign is to be removed by agreement of the parties. Advertising signs: five signs · In & Out North three under-awning signs: these signs are approved by agreement of the parties. · Mogo Fudge plus other items sign: the council wants to remove the sign because of its large size and content referring to the products of the café. I accept that this sign should be removed for these reasons. · In & Out North sign at entry from courtyard: this sign is approved by agreement of the parties. Advertising structure: one double-sided · Courtyard café sign at southwest corner of the allotment: the applicant maintains that this sign is approved; the council disputes that this is the case. The council wants it removed because of its reference to café products and because of its aesthetic impact. The applicant is willing to modify the sign. In my opinion, the sign is visually disruptive and should be removed. Information signs: one · Please order inside sign in the courtyard: the council wants this sign removed only because of its content, as it commits no aesthetic offence. I agree that for this reason it should be removed. Internal/external signs on doors: three signs · In & Out North sign inside door fronting highway: this sign may remain by agreement of the parties. · Mogo Fudge sign inside door facing courtyard: the council wants this sign removed only because of its location in the courtyard, which it considers should not be used as a café. There is no aesthetic objection. In my opinion, the sign may remain. Its reference to some products of the café may be acceptable as the ice cream shop may lawfully offer products that are not strictly ice cream. · Please order sign inside door facing the courtyard: the council wants this sign removed as it clearly refers to food that will be brought to the courtyard to be consumed. I accept that this sign should be removed. Sandwich boards: two signs · Mogo Fudge sign in garden adjoining footpath: this sign may remain by agreement of the parties. · Wire frame sign with changeable inserts: this sign is to be removed by agreement of the parties. Removable signs: two signs · The frames of these signs are screwed to the building. They are promotional signs provided by the manufacturers of products on sale. The council objects to them on aesthetic and heritage grounds. I accept that they should be removed. Windbreak signs for Vittoria coffee: two signs · The council objects to these on aesthetic and heritage grounds. While they are not in harmony with the building or the intended character of Mogo, they appear small and reasonably recessive. I do not think that they cause much visual disruption. They may be retained. Compliance period 9 The parties agreed on a compliance period of fourteen days for the removal of signs and until 15 March 2008 for the In & Out North business identification sign. Conclusion 10 Out of nineteen existing signs, eighteen were in dispute. The dispute was resolved by agreement in respect of nine signs. Of the remaining nine signs in dispute six are to be removed, and three may be retained. In total, eight signs are to be removed, two of them with the applicant's agreement. Orders Appeal No 10388 of 2007 1. The appeal is upheld in part. 2. The Order of Eurobodalla Shire Council, made 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, is amended as follows: In & Out North sign to be reduced to 1800x1200. The following eight signs are to be removed: § Courtyard Café sign. § Mogo Fudge plus other items sign. § Courtyard café sign at southwest corner of the allotment. § Please order inside sign in the courtyard. § Please order sign inside door facing the courtyard. § Wire frame sign with changeable inserts. § Two removable signs with frames screwed to the building. Compliance Period : 31 January 2008 for the removal of signs; 15 March 2008 for the reduction of the In & Out North business identification sign. Orders Appeal No 11168 of 2007 3. The appeal is upheld in part. 4. Development application in respect of the property on lot 2 sec6 DP 75688, known as 44 Sydney Street, Mogo is determined to allow the following eleven signs: § In & Out North sign, subject to its size being reduced to 1800x1200. § Mogo Fudge and Ice Cream sign. § Three In & Out North under-awning signs. § In & Out North sign at entry from courtyard. § In & Out North sign inside door fronting highway. § Mogo Fudge sign inside door facing courtyard. § Mogo Fudge sign in garden adjoining footpath. § Two windbreak signs for Vittoria coffee. ________________________ Dr John Roseth Senior Commissioner 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.