Land and Environment Court New South Wales Medium Neutral Citation: Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council (No 2) [2012] NSWLEC 1102 Hearing dates: 23 April 2012 Decision date: 27 April 2012 Jurisdiction: Class 1 Before: Pearson C Decision: 10458 of 2011: Appeal dismissed 10512 of 2011: Appeal upheld in part 10942 of 2011: Appeal dismissed Catchwords: Development Application - Building Certificate - Section 121B Order - Advertising signage Legislation Cited: Environmental Planning and Assessment Act 1979 Civil Procedure Act 2005 Environmental Planning and Assessment Act 2005 State Environmental Planning Policy No 64- Advertising and Signage Cases Cited: Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council [2012] NSWLEC 1093 GPT RE Ltd v Belmorgan Property Development Pty Ltd [208] NSWCA 256 Hopkins v Tweed Shire Council (2001) 113 LGERA 406 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Category: Principal judgment Parties: 10458 of 2011: Administration and Marketing Solutions Pty Ltd (Applicant) Lane Cove Council (Respondent) 10512 of 2011: Big Country Developments Pty Ltd (Applicant) Lane Cove Council (Respondent) 10942 of 2011: Administration and Marketing Solutions Pty Ltd (Applicant) Lane Cove Council (Respondent) Representation: Mr N Eastman (Applicants) Mr I Woodward, Storey & Gough Solicitors (Applicants) Mr S Griffiths, Pikes Lawyers (Respondent) File Number(s): 10458 of 2011 10512 of 2011 10942 of 2011 Judgment 1The three appeals before the Court are an appeal under s149F of the Environmental Planning and Assessment Act 1979 (the Act) against refusal of a building certificate (Appeal 10458 of 2011); an appeal under s121ZK of the Act against an Order issued under s121B (Appeal 10512 of 2011); and an appeal under s97 of the Act against refusal of a development application (Appeal 10942 of 2011). 2The appeals relate to present and proposed advertising signage on a building at 73 Longueville Road Lane Cove, part of which is used as a "Chemist Warehouse" pharmacy. The building is owned by Big Country Developments Pty Ltd, which is the applicant in Appeal 10512 of 2011. The applicant in the other two appeals is Administration and Marketing Solutions Pty Ltd. 3In Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council [2012] NSWLEC 1093 I concluded that none of the proposed or existing signage on the building is exempt development. I considered first the appeal against refusal of development consent for 14 signs (the DA appeal), and concluded on the evidence that none of the signs could be approved in the form proposed in the plan TP01-A dated 30 August 2011. I concluded that none of the signs identified in the plan accompanying the application for a building certificate (TP01 dated 21 March 2011), which are not the same as the plans in the DA appeal, could be authorised to remain on the building by the issue of a building certificate. In oral and written submissions the applicant had submitted that if the Court were not satisfied that all of the subject signage ought be granted consent, it could still approve some of that for which permissibility and merit tests are met, and deletion or alteration of any of the signs could be given effect by appropriate wording of conditions. 4The parties have now had the opportunity, as foreshadowed in [85] of the earlier reasons, to consider whether an application to amend the development application should be made, and to make submissions on the appropriate form of final orders for each of the appeals. Applicant's submissions 5The applicant accepts that the Court should dismiss the Building Certificate appeal and the Order appeal; the effect of the latter would be that the applicant is required to remove the signage for which it does not have consent, which it will do within 7 days of the orders being made. 6The applicant has provided an amended version of the plan submitted with the development application, drawing TP01-C dated 18 April 2012. This plan shows five signs. Three, identified as signs 10, 11 and 18 to correspond with the numbering on the original development application plan (exhibit J), are illuminated lightbox signs. Signs 1 and 12 are weathertex. Signs 10, 11 and 18 are in the form, and location, considered in the earlier reasons, reduced in size. Signs 11, 12 and 18 were marked on the plan submitted with the original development application, but not included in it on the basis that each sign was exempt development. Sign 1 is a reduced form of the sign included in the original development application. Sign 12 was not considered in the earlier reasons, as it was not included in the original development application, and is not presently on the building so as to require consideration in the Building Certificate appeal. 7The applicant submits that the DA appeal can be upheld in part with consent being granted for signage and with the draft Conditions of consent being modified to refer to the plan TP01-C. The applicant submits that this condition would be authorised by s 80A(1)(g) of the Act, which provides: (1) Conditions-generally A condition of development consent may be imposed if: ... (g) it modifies details of the development the subject of the development application, or ... 8The applicant submits that the difference between what is in plan TP01-C and what was originally proposed is a matter of detail rather than resulting in a significantly different development. A broad view should be taken of what was the "development" the subject of the development application. 9If such a condition would not be authorised by s 80A(1)(g), the applicant submits that it would seek leave to amend the development application so that it reflects the matters already assessed. The applicant concedes that if the development application is amended, that would not be minor for the purposes of s97B of the Act. The applicant submits that no additional merits assessment would be required for consideration of an amended development application. 10In reply, the applicant submits that signs 10, 11 and 18 were considered by the planning experts, and the acceptability on the merits of signs in those locations is a consequence of the earlier judgment. It is undesirable that there should be a fresh development application considered by the Council which may lead to a difference in views. If some variation of the s121B Order is made to enable some of the signs to remain, it should be for a period of six months. Respondent's submissions 11The Council submits that the development application sought consent for the erection of 14 signs which were detailed in the drawing accompanying the development application, and not for "signage" in a broader sense. The plan accompanying the development application showed signs for which development consent was not being sought. The Council submits that s 80A(1)(g) would not authorise the imposition of a condition as urged by the applicant. 12The Council opposes any application to amend the development application. Any consideration of whether leave should be granted should be undertaken in the context of s58 of the Civil Procedure Act 2005, which provides: 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 13The Council submits that relevant matters for the purposes of s 58(2)(b) include the lack of expedition in the way in which the applicant has approached the proceedings. The applicant erected the signage back in early 2011 without authorisation. The Council served Notice of an Intention to Issue an Order on 18 March 2011. The applicant applied for a building certificate on 25 March 2011 and lodged an appeal against the refusal of that application on 1 June 2011. The Council issued an Order requiring removal of the unauthorised signage in June 2011, and the appeal against the order was lodged on 15 June 2011. Hearing dates were set for those appeals. It was not until 5 September 2011 that the applicant lodged the development application with the Council, and when the appeal was lodged against the deemed refusal of that application, the hearing dates for the other appeals were vacated. 14The Council submits that to allow an amendment to the development application would give rise to injustice, and would be contrary to the public interest. Proper consideration of whether signs 10, 11 and 18 could be approved would require further expert evidence, and the views of the objectors would need to be sought. That would incur costs which are beyond the reach of s97B of the Act. If the development application is not amended and the appeal is dismissed, the applicant would not suffer any injustice in having to apply to the Council for consent to erect signage. That process would have the benefit of the consideration undertaken in the earlier reasons. If the applicant submits that it would suffer an injustice by having to remove all the signage presently on the building while a fresh development application is considered, that could be alleviated by varying the s121B order to allow possibly signs 10 and 11, and possibly sign 1, to remain for a period of four months. 15The Council submits that the public interest requires consideration of the development application by the Council. The present circumstances are of the applicant's making as it did not lodge an application for consent before erecting the signage. Consideration 16The development application lodged on 5 September 2011 described the proposed development as "Erection of 14 Signs on Existing Building". The plans submitted with the development application showed those signs, and an additional four signs that were identified in the plans and in the Statement of Environmental Effects as being exempt development as a replacement of the previous signage in those locations. Signs 1 and 10 were included in the development application; signs 11, 18 and 12 were not. 17While the proper approach to categorisation or characterisation of development is that it is not determined by reference to the type of development nominated by an applicant in an application for development consent (Hopkins v Tweed Shire Council (2001) 113 LGERA 406), in my view the development application should not be read as broadly as contended for by the applicant. As reflected in the development application form and the Statement of Environmental Effects, it was specifically focussed on 14 proposed signs which the applicant identified as requiring consent, in a context where there were on foot parallel proceedings for a building certificate that could potentially authorise the retention of some of the existing signage. 18The decision of the Court of Appeal in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 supports the view that the power to impose a condition under s 80A(1)(g) would authorise a condition that made amendments to the design of the proposed development, leaving some matters open. Section 80A(1)(g) would not support a condition that could "significantly alter" the development: GPT RE Ltd v Belmorgan Property Development Pty Ltd [208] NSWCA 256 at [55]. It is difficult to accept that the addition of three signs expressly not included in the original development application as proposed in plan TP01-C could be the modification of "details of the development the subject of the development application" so that a condition could be imposed under s 80A(1)(g). However, it is not necessary to express a concluded view on this, as for the reasons below I do not consider that this would be appropriate. 19The alternative course would be to consider an application for leave to amend the development application to include those signs in a modified form. Such an amendment would not, in my view, convert the application into an original application, and the power to make such an amendment under cl 55 of the Environmental Planning and Assessment Regulation 2000 would be available: Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292. 20If there is power to approve the signs in plan TP01-C either by imposing a condition, or by permitting amendment of the development application to reflect that plan, the issue is whether either course should be adopted. 21The assessment undertaken by the Council in the Environmental Services Division Report dated 7 November 2011 assessed the proposed signage against the requirements of the relevant planning controls, including State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64). That assessment was undertaken both individually in relation to wall advertisements, window signs, and illuminated signs, and more generally in terms of the visual impact of the signage on each of the three elevations of the building by reference to the number, scale, location and form of the signs. A similar approach was taken in the expert planning evidence in the form of separate and joint reports and oral evidence given at the hearing. Having regard to that evidence and the view, at [63] of the earlier reasons I expressed a view about the size of sign 10; and at [64] I expressed a view about the size and location of sign 1. At [75]-[76] I considered signs 11 and 18 in the context of the Building Certificate appeal only. I did not consider sign 12, as it was not part of the development application, and not being present on the building, could not be the subject of a building certificate. 22I agree with the Council that whether or not the location and dimensions of the signs in plan TP01-C are an appropriate response to the assessment undertaken in the earlier reasons is a matter which requires further consideration. Mr Sanders' evidence was that signs 10, 11 and 18, in the form proposed in the original development application, were much larger than the other existing parapet signs for other premises within the building and "appear disproportionate as a result" (para 2.46, exhibit 7). In the joint report (para 3.3, exhibit 10) he noted that he had assessed the signs claimed to be exempt development and concluded that they would add to the visual clutter resulting from the other signs that were the subject of the development application. The evidence of Mr Caladine was that the signs were acceptable in their present form. The written and oral evidence did not, in terms, address what modifications to signs 1, 10, 12, 11 and 18 would be appropriate, and there may be other issues than size. I agree with the Council that the further consideration required for the signs in TP01-C would be informed and assisted by specific attention by the planning experts. 23The Court has where appropriate in some matters adopted what has sometimes been described as an "amber light" approach, considering not only whether a proposal should be approved in the form before the Court but also asking whether the proposal is capable of approval with specified modifications imposed by the Court within the scope of the present proceedings: The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [66]. That was the course urged by the applicant in submissions. In Benevolent Society, the Court tested during the course of the expert evidence a number of propositions in order to explore whether there were any modifications to the proposal that would cause the council to indicate that an acceptable design had been achieved if such modifications were adopted: at [67]. However, in the context of these proceedings where, in the absence of agreement between the parties, some further merits assessment needs to be undertaken, I am of the view that even if there is power to impose a condition under s 80A(1)(g), that would not be appropriate. 24In considering whether, in the alternative, it is appropriate to grant leave to amend the development application. The consequence of not doing so would be that the DA appeal would be dismissed. The applicant would be required to lodge a fresh development application, which would have to be considered by the Council and potentially on appeal by the Court. That would involve a delay and associated costs. Allowing the amendment would necessitate further assessment in the present proceedings, involving additional expert evidence, which would also involve delay and costs. It is likely that some time would pass before a further hearing date could be obtained. Allowing the amendment would require the Court to order under s97B payment for the Council's costs thrown away as a result of amending the development application unless the amendment is a minor amendment, and the applicant conceded that this would not be the case. 25I am mindful of the requirement imposed by s56 of the Civil Procedure Act 2005 to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the dispute or proceedings. The lodgement of the development application well after the Council served the s 121B Order and the Building Certificate was refused reflects a lack of expedition in approaching the proceedings, and has extended the time required to determine all three appeals. The Council accepts that its consideration of any fresh development application would be undertaken with the benefit of the earlier reasons. In considering the dictates of justice as required by s58 of the Civil Procedure Act 2005, I agree with the Council that any injustice that might arise if the applicant is required to remove the existing signage could be ameliorated by varying the s121B Order to permit some of the signs to remain while a fresh development application is considered. 26Having regard to these factors, I am of the view that the appropriate course is to determine the development application in the form reflected in planTP01-A dated 30 August 2011 (exhibit J). On an assessment of the signs in accordance with the applicable planning controls, as outlined in the earlier reasons, I conclude that none of the signs proposed in the development application should be approved, and the DA appeal should be dismissed. 27At [69]-[81] of the earlier reasons I considered whether any of the signs presently on the building could, or should, be permitted to remain by the issue of a building certificate. The parties agree that consistent with that reasoning, the Building Certificate appeal should be dismissed. 28The refusal of the application for a building certificate and the refusal of consent for any of the proposed signs, in circumstances where, for the reasons expressed in the earlier reasons, none of the signage is exempt development, means that all the signage presently on the building has been erected without development consent where prior development consent was required. The circumstances for the issue of an order under item 2(a) and item 5(b) of s121B of the Act are established. On a merits assessment, none of the present signage should remain. The s121B Order to require removal of the signs should be confirmed. Having regard to the interests of the applicants in the continued operation of the business, and the time likely to be required to apply for and obtain development consent for signage to facilitate that operation, it is appropriate to exercise the power conferred by s 121ZK(4)(b) of the Act to vary the Order to permit two of the present signs to remain for a limited period, and to require removal of all other signs within 7 days. In fixing the period, I note that the period between the lodgement of the original development application and the hearing of the appeal in the present proceedings was some 15 weeks. I consider that in the circumstances where the scope and nature of the development proposed, and the issues in dispute, are clear, it is appropriate to allow the signs to remain for a period of five months. Orders 29The Orders of the Court are: Appeal 10458 of 2011 1. The appeal is dismissed. 2. The exhibits are returned except for exhibits 1, A and G. Appeal 10512 of 2011 1. The appeal is upheld in part. 2. The Order issued under s121B of the Environmental Planning and Assessment Act 1979 in relation to property at 73 Longueville Road Lane Cove is modified as follows: Time Period for Compliance with Order Delete: You are directed to carry out the schedule of works set out above within a period of (14) days from the date of this Order. Substitute: (1) Except as provided in (2), you are directed to carry out the schedule of works set out above within a period of 7 days from the date of the orders made in Land and Environment Court Appeal 10512 of 2011. (2) Signs 10 and 11 as identified on plan TP01-A dated 30 August 2011 are to be removed no later than five months from the date of the orders made in Land and Environment Court Appeal 10512 of 2011. 3. The exhibits are returned except for exhibits 2, B and H. Appeal 10942 of 2011 1. The appeal is dismissed. 2. Development application D168/11 for the erection of 14 advertising signs at 73 Longueville Road Lane Cove is refused. 3. The exhibits are returned except for exhibits 6, C and J. Linda Pearson 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: 27 April 2012