Benmill v North Sydney Council [2007] NSWLEC 680

Land and Environment Court of New South Wales

CITATION : Benmill v North Sydney Council [2007] NSWLEC 680

Applicant: Benmill Pty Ltd JB No 3 Pty Ltd PARTIES : Respondent: North Sydney Council

FILE NUMBER(S) : 10791 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application :- advertising sign

DATES OF HEARING: 15/10/2007, 24/10/2007 and 20/11/2007

DATE OF JUDGMENT: 22 November 2007

Applicant: LEGAL REPRESENTATIVES: Mr P Clay, barrister instructed by Mr D Thomas, solicitor of Hones LA Hood Respondent: Mr A Pickles, instructed by Ms B Cusworth, solicitor of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

22 November 2007

10791 of 2007 Benmill Pty Ltd JB No 3 Pty Ltd v North Sydney Council

JUDGMENT 1 Senior Commissioner: This is an appeal against two conditions contained in the consent dated 3 August 2007 by North Sydney Council (the council) to a development application for the re-cladding of the existing building at 275 Alfred Street, North Sydney and the erection of a roof sign. The effect of the two conditions is to exclude the roof sign from the consent. 2 The existing building, built about thirty years ago, is much higher than its neighbours and the maximum statutory height that now applies to the site. From the northwest to the southwest the building faces the Warringah Expressway and the North Sydney commercial centre. In the other direction it faces mainly residential areas where most of the buildings are two-storey high. The sign, as originally proposed by the applicant, would result in increasing the height and therefore the impact on nearby residential areas. The council's objections are based on the increased impact on the residential areas. 3 Several statutory instruments are relevant to the application. State Environmental Planning Policy 64 – Advertising and Signage (SEPP 64) applies. The North Sydney Local Environmental Plan 2001 (the LEP) and the North Sydney Development Control Plan (the DCP) also apply. The latter includes a section dealing with Outdoor Advertising. 4 During the site visit the Court inspected the property of an objector, Ms Rosemary Dermody, at 3 Bray Street. The approved design takes into account Ms Dermody's concerns. 5 The Court benefited from the assistance of no fewer than four experts. Dr Richard Lamb, a visual analyst, and Mr Stuart Verity, a town planner and urban designer, gave evidence in the applicant's case. Mr Geoffrey Baker, an architect and urban designer, and Mr Ian Pickles, a town planner with the council, gave evidence in the council's case. Mr Duncan Wood, an architect and the designer of the proposal, gave explanatory evidence. 6 Following the site visit, the experts joined in conference in an attempt to reach a design solution that would meet the concerns of the council's experts as well as fulfil the applicant's objectives. While the conference had moved towards agreement, it did not quite reach it. In a process that was much more akin to a design studio than a Court hearing, the conference continued when the Court reconvened at 2 pm. Eventually a solution was devised that all experts considered satisfactory. The main difference between the agreed design and the original application is that the agreed design reduces the size of the advertising sign towards the east (ie the residential areas) and increases it towards the west (ie the Expressway and North Sydney commercial area). 7 It was common ground that, since the new design for the sign decreases its impact towards the residential areas, there was no requirement for re-notification. The experts agreed that the new sign is in part higher and wider than the existing and that pursuant to cl 28G of the LEP and to cl 21(1)(b)(i) of SEPP 64 the applicant must lodge an Objection under State Environmental Planning Policy 1 – Development Standards to the requirement that height and width must not be increased. The applicant lodged an Objection to that effect. The experts agreed that the decrease in the dimension of the sign towards the residential areas justified the increase in dimension towards the Expressway and the commercial area, and that therefore the Objection was well founded. Although this was not specifically stated, I assume on the basis of Mr Pickle's agreement that the revised proposal was acceptable, that the revised proposal is consistent with the DCP. 8 The council submitted that, despite Mr Baker and Mr Pickles' agreement, it did not support the amended design for the sign because it included larger letters for the word "bayer" than the existing ones. However, since all four experts agreed that the proposed sign was acceptable and an improvement on the original, the weight of evidence supports the approval of the application. The appeal is therefore upheld.