Land and Environment Court New South Wales Medium Neutral Citation: Westfield Management Ltd v Sydney City Council [2012] NSWLEC 1080 Hearing dates: 14 March 2012 Decision date: 30 March 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Modification application, signage. Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy 64 - Advertising and Signage Sydney Local Environmental Plan 2005 Texts Cited: Development Control Plan 2005 - Signage and Advertising Structures Category: Principal judgment Parties: Westfield Management Limited (Applicant) Sydney City Council (Respondent) Representation: Counsel Mr A Pickles (Applicant) Solicitors Ms S Redman Minter Ellison (Applicant) Mr A Hawkes Sydney City Council (Respondent) File Number(s): 11150 of 2011 Judgment 1Westfield Management Ltd had consent to erect temporary signage in two locations on its shopping centre building in the Sydney CBD. That signage has been erected, the temporary period has expired and the company sought to modify the consent to allow its retention. Sydney City Council rejected the application and Westfield is appealing that decision. 2The signage is located below an approved building name sign and incorporates Westfield's web address. 3The issues are whether the signs comply with the council's planning controls, the approved signage strategy for the site, contribute to visual and physical clutter, are likely to establish a precedent and are in the public interest. Background and the proposal 4Westfield own and operate a major retail/commercial development at 188 Pitt Street. The site is located on the northern side of Market Street, has frontage to Pitt and Castlereagh Streets and contains a major mixed use development comprising three basement levels of parking and service areas, seven retailing levels, commercial offices above and Centrepoint Tower. The site has been the subject of a recent major redevelopment in accordance with two development consents issued by the council, including one that added additional land. One of the conditions on the main consent required that a signage strategy be prepared to indicate the location and extent of signage to be erected on the buildings/site. 5The Signage Strategy, dated 15 September 2009, has been approved by the council and, according to its introduction "provides specific information regarding the number, scale, location, type, construction and illumination characteristics of the external signs proposed for the buildings on the site. The signage strategy encompasses external identification and wayfinding signage for the retail podium, new commercial tower at 85 Castlereagh Street and existing commercial towers at 100 Market Street (ATP Tower) and Skygarden Tower. It is recognised that individual retail shopfront signage, including proposed signs that are externally fitted or set behind the glass line and visible from the street, will be subject to separate DA submissions." 6Development application D/2010/518 was approved by the council on 28 May 2010 and authorised the installation of two illuminated building identification signs for Westfield at retail podium level on the Pitt and Market Street facades, each sign being 2.5 m high and 7.5 m wide. The signage contained the wording "Westfield" and one sign is attached to the southern or Market St elevation and the other to the western, Pitt St elevation. 7Following the addition of two smaller signs below the approved signs, Westfield lodged an application under s 96 of the Environmental Planning and Assessment Act 1979 seeking modification of the consent to D/2010/518 to allow the retention of those signs. The signs were erected below the "Westfield" sign and contained the web address (domain name) of the company. The council, on 24 December 2010 approved the application subject to a time-limited period of six months in accordance with a new condition, condition 4A. That condition reads as follows: The website/domain name signs "westfield.com.au" and any associated structure(s) must be removed and the building/site reinstated, within a period of six (6) months from the date of this modified consent. If the sign(s) are to be retained after this period, a new development application must be lodged with Council before the expiration of the consent. 8That time limited period has expired however the signs have not been removed and the council has issued an Order requiring their removal. Westfield lodged a further s 96 application with council on 16 September 2011 and sought consent for the deletion of condition 4A to allow the domain name signage to remain as permanent signage. It is the refusal of that application that is the subject of these proceedings. 9The sign originally approved and containing the words "Westfield" comprises individual lettering attached to and set proud of the southern and western faces of the retail podium level of the building. Overall dimensions of the sign are 7.5 m x 2.5 m and it is red in colour. The sign the subject of the application is located 250 mm below that sign, is 5 m x 0.58 m, red in colour, also in the form of individual lettering and contains the wording "www.westfield.com.au". The planning controls 10The site is zoned City Centre under Sydney Local Environmental Plan 2005 (the LEP) and the signs are permissible with consent. Relevant clauses of the LEP are clause 4 (aims, strategies, principles and policies), 11 (aims of the plan), 12 (strategies for achieving aims of the plan), 13 (principles to be followed in implementing strategies), 26 (design excellence) and 36 (objectives of the City Centre zone). 11State Environmental Planning Policy 64 - Advertising and Signage (SEPP 64) applies to the site and, of relevance to the application, regulates signage but not content under Part 4 of the Environmental Planning and Assessment Act 1979. That policy contains a number of definitions, those relevant to the application are: advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement. advertising structure means a structure or vessel that is principally designed for, or that is used for, the display of an advertisement. building identification sign means a sign that identifies or names a building, and that may include the name of a business or building, the street number of a building, the nature of the business and a logo or other symbol that identifies the business, but that does not include general advertising of products, goods or services. business identification sign means a sign: (a) that indicates: (i) the name of the person, and (ii) the business carried on by the person, at the premises or place at which the sign is displayed, and (b) that may include the address of the premises or place and a logo or other symbol that identifies the business, but that does not include any advertising relating to a person who does not carry on business at the premises or place. wall advertisement means an advertisement that is painted on or fixed flat to the wall of a building, but does not include a special promotional advertisement or building wrap advertisement. 12Development Control Plan 2005 - Signage and Advertising Structures (the DCP), applies to all signage and advertising structures (unless otherwise addressed by Exempt and Complying Development provisions or Convenience Stores provisions) and to other devices including lighting, logos, colour and paint schemes, both on and within buildings (including doorways and windows) and sites. According to clause 1.4, the DCP supplements the provisions of SEPP 64, does not exempt the land to which the DCP applies from the provisions of SEPP 64 and all advertising and signage proposals are to have consideration to that policy. The DCP is to operate in addition to SEPP 64 and remains the governing instrument for a range of signs including, those relevant to the application, advertisements with an area greater than 20 sqm or higher than 8 m above ground, roof or sky advertisements, wall advertisements and special promotional advertisements. 13SEPP 64 contains definitions of different sign types whereas the DCP does not however it makes reference to different sign types and has controls for those types of signs. 14According to the evidence, the domain name was approved for a temporary period only under the provisions of clause 4.4 of the DCP as the council considered the opening of the Westfield Shopping Centre was a special event. Under the provisions of that section, temporary signs and sign structures remain subject to the same design and locational provisions as permanent signs however special consideration may be given to the signs associated with special events of a community or cultural nature and those signs are usually permissible for a period of up to 40 days. The Signage Strategy 15As stated above, the approved Signage Strategy is to guide the location and extent of signs to be erected on the site. Section 3 of the Strategy refers to the primary design objectives, which are to identify, to inform and to direct. Specific design objectives relevant to the application include: * Create a strong and cohesive visual identity for the development as a whole. * Achieve a high level of design quality and carefully consider the architectural design elements and the character of the Pitt, Market and Castlereagh Streetscapes. * Provide sign system that assists with wayfinding and the pedestrian usability of the development and the city as a whole. * Provide a suite of signs that contribute to the vitality of a retail precinct of global standards. * Form an integral element of the development and assist with promoting and identifying the uses of the development and the city as a whole. * Ensure sings do not detract from the amenity of any environmentally sensitive areas in particular the Skygarden heritage façade on Pitt Street. 16Part 4.1 classified eight sign types and under that classification the signs would be Retail Podium Identification Signage. Two such signs were proposed, one on the Pitt Street elevation and the other to Market Street, identified as RPS_PS_01 and RPS_MS_02 respectively. Each are to be positioned at level 5 of the retail podium and the nominal message is to read "Westfield". Those signs have been erected in accordance with development consent D/2010/518 referred to at [6]. 17Part 9 provides particular details of sign size, materials, construction and illumination and in relation to the Retail Podium Identification Signage, these signs are described as signs that relate to the branding of the retail podium that is distinctly separate from the commercial towers in terms of both architectural design and use. These signs are placed at strategic locations on the glass facades of the Pitt and Castlereagh Street buildings between the first floor and the parapet. A total of four of these signs are nominated in the signage strategy. The signs are to have a maximum size of 3 m high x 9 m wide and occupy a minor portion of the building elevations on which they are located, are to be attached to the facades constructed from light weight painted aluminium with steel support framing and acrylic or polycarbonate sign faces and be internally or halo illuminated. The evidence 18Expert planning evidence was heard from Mr B Brown for the applicant and Ms V Aziz for the council. 19Those experts agree that the "Westfield" building name signs approved as part of the original consent are consistent with the Signage Strategy, that the strategy is used as a guide that is considered in the assessment of any signage application for the site, the council has approved signs on the building that were not identified in or were not strictly in accordance with that strategy and the domain sign is not identified or referenced in the strategy. 20They also agree that the web address provides information about online shopping and also provides a means of accessing information about the nature of the Westfield business generally and about this particular building and its tenants. They concur that the consent refers to the approved signage as "building identification signs" which is the term used in SEPP 64, that there is currently no domain name signage in Pitt Street Mall similar to that proposed nor applications lodged proposing domain name signage. They agree that the development is a large shopping centre with hundreds of tenants that have no street presence. 21The experts disagree whether the signs as erected are one sign, if they satisfy the definition of building name sign under the DCP or building identification sign under SEPP 64 due to the web address content and if that content is "general advertising of products, goods or services". 22Ms Aziz says that the domain name signs are contrary to the DCP in that they do not 'add character to the streetscape of the City of Sydney' or 'assist with wayfinding and pedestrian useability'. She also says that they are inconsistent with the approved Signage Strategy which, in Part 3, states that the fundamental and primary objectives of the signage is to identify, inform and direct, that the domain name would be a "general advertising sign" and would present as two signs due to the fact that they were erected at separate times, are separately attached, the words use different font and visually look like two signs however she did concede that if the signs had been painted on a board rather than individually attached to the building they would appear as one sign. 23Mr Brown disagrees and says that the domain name is not general advertising, it forms part of a Building Name Sign (the term used in the DCP) and a Building Identification Sign (as defined in SEPP 64) and relates to both the building (providing information on its operation and tenants) and the business (informs people about the nature of the Westfield business). He says that the Signage Strategy contains no restrictions on the number of words a sign may contain and that a building identification sign may contain elements other than the name of the building or business. He cites the definition contained in SEPP 64 and says that the sign could contain other words or a logo such as "188", a street number or "Shopping Centre" describing the nature of the building. He considers a domain name is another more contemporary way of identifying the name and nature of the building/business, noting the DCP does not make provision for domain names suggesting that the planning controls have not kept up with the times. 24Ms Aziz relies on clause 3.3.10 of the DCP which states that building name signs must not contain any other text other than the name of the significant tenant or owner and clause 2.4.1(iii) which requires main building facades to be uncluttered and generally free of signage. She says the domain name signage gives rise to visual clutter as there is already a total of 3 Westfield building name signs on the elevation facing the corner of Market St and Pitt St Mall. She did concede that if the sign had read "Westfield Management Limited" it would reflect the name of the owner and occupant of the building and would be acceptable. Ms Aziz distinguishes the content of the sign, saying that it is third party advertising and does not identify the building name, nor is it the street address of the business. She does accept that the web address allows identification of all of the other retail tenants within the building, identifies the name of the business and the business carried on by the company but does not agree that the domain name would be a "corporate logo". 25Mr Brown does not agree that the sign contributes to visual clutter and that the main control on proliferation and clutter is the size and overall number of sign zones nominated in the Signage Strategy. He says the sign the subject of the application forms part of the Retail Podium Signs approved under the Strategy and has a size and location consistent with that strategy, occupying a lesser area than provided and only, in a small way, going beyond the nominated dimensions. 26Ms Aziz says that the domain name signage lessens the impact and design of the Westfield sign, resulting in an additional two signs that do not serve any purpose other than general advertising, looks repetitive, is unnecessary and creates visual clutter. She says that the existing signage is sufficient to clearly identify the Westfield building and the retail outlets in Pitt Street Mall and the purpose of the control is to keep the facades generally free of signage and to remain uncluttered. She has identified a number of tenants with ground level access to Pitt Street Mall and Market Street and says those companies, whilst having a domain name, do not include it as part of their retail outlet identification name and is concerned that if consent is granted to the application, a precedent would be established and those companies would seek to add that detail to the signs. 27Mr Brown distinguishes the application and says that the shopping centre contains over 300 different retailers, 200 of which have no street presence and that the domain name provides a means of accessing information about the many internal tenancies. He says the sign has been erected for well over 1 year so has not set an undesirable precedent as agreed with Ms Aziz, no application for similar signage has been made. 28Ms Aziz concludes that because the domain name signage is commercial advertising, it is inconsistent with the DCP, it does not fall under the definition of Building Identification Sign under SEPP 64 or Building Name Sign under the DCP, is inconsistent with the Signage Strategy and its approval would not be in the public interest. Mr Brown holds a contrary view saying the domain name is an element that assists in identifying the building and business it contains in accordance with the SEPP 64 definition for building identification signs, is not general advertising and is part of a building name sign as referred to in the DCP as it relates to the business which is the subject of the building name and is consistent with the approved size and location shown in the Signage Strategy. Conclusion and findings 29Having regard to the planning controls and evidence presented, I accept the evidence of Mr Brown and am satisfied that the proposal to include the domain name within that area nominated as the location for Retail Podium Identification Signs in the Signage Strategy that has been adopted for the site would be consistent with the SEPP 64 definition of a building identification sign. The parties agree that the sign is a building identification sign. I do not consider that the inclusion of the company's web address is "general advertising" and note that the information that can be contained in such a sign can include the name of a business or building, the street number of a building, the nature of the business and a logo or other symbol that identifies the business. I agree that the web address, whilst not a logo or street number, is a symbol that does identify the business conducted in the shopping centre and also provides a person with information regarding tenants of the building so as to assist in wayfinding. That is consistent with the objectives of the council's planning controls. 30Mr Hawkes, for the council, submits that, because the sign would be defined as a building name sign under the DCP, the provisions of clause 3.3.10 must apply and that says that such a sign must not contain any text other than the name of the significant tenant or owner. Clause 3.3.11 is also relevant and this allows the incorporation of a corporate logo under certain circumstances. Whilst there is no evidence that the domain address is part of any company logo, it is a symbol that identifies the business. 31I do not agree that the provisions of the DCP can limit what can be contained in a building identification sign as defined in SEPP 64. That State Policy must prevail in the event of any inconsistency and whilst the DCP is not an environmental planning instrument for the purposes of clause 7 of SEPP 64, it must be given greater weight and application in determining the application. For that reason, even if the sign is a building name sign, I find that the provisions of SEPP 64 would allow the inclusion of the domain name sign as part of the content of that sign. Separate provisions for "Other identification signs" are found at clause 3.9 of the DCP and that requires a more general consideration of the objectives of Sections 2 and 3. I am satisfied that the proposed sign is consistent with those objectives. 32The signage strategy is an important document and has been, to date, successful in controlling signage at the site. It provides for an identification sign with maximum dimensions of 9 m in width x 3 m in height. The approved "Westfield" sign is 7.5 m x 2.5 m and the additional of the domain name increases that overall dimensions to 7.5 m x 3.33 m, being slightly higher but 1.5 m shorter than envisaged under the strategy and the area occupied being considerably less than allocated. I do not consider that the variation in the height is unreasonable, nor is it inconsistent with the strategy. 33The planning experts agree that the sign is only visible when in close proximity to the centre and therefore, its impact would not be significant. As the purpose of SEPP 64 and the signage strategy is to regulate signage but not precise content, (other than to prohibit in this case, general advertising), I accept the evidence of Mr Brown that the inclusion of the web address within the approved sign area and location does not add to visual clutter in such a way that it is undesirable or results in any precedent. This is particularly the case as Ms Aziz agreed that if the wording of the sign added "Management Limited" to the existing sign that would be acceptable. 34In the circumstances of the case, where the site forms such a large part of the City of Sydney's retail area and contains a large building with so many internal tenants, I find that the signs do not add to visual clutter but rather assists in preventing the need for additional signs. For that reason, I am satisfied that the additional two signs do not establish a precedent for those retailers with individual businesses in the centre or who occupy nearby land. This site is unique, the application must be assessed on its particular merits and in particular having regard to the approved signage strategy and the relevant planning controls. Having found that the signs are consistent with those controls, the application should be allowed. The finding however, should not be construed that it is appropriate to allow the addition of a web address to any other signs at the site, nor would it be an appropriate addition to any roof sign. Orders 35The Orders of the Court are: (1)The appeal is upheld. (2)Development consent D/2010/518 is modified by: (a)The deletion of condition 4A, (b)Adding to condition (1)(a), after the words "Ingham Planning Pty Ltd" the following "and amended as shown on the photographs included in Folio 113 of Exhibit 1 of the Land and Environment Court proceedings 11150 of 2011. (3)The exhibits are returned. Sue Morris Commissioner of the Court 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. Decision last updated: 05 April 2012