Land and Environment Court New South Wales Medium Neutral Citation: Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1337 Hearing dates: 22 November 2012 Decision date: 22 November 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. The application to modify development consent D/2011/309 for signage for a public car park at 4 Point Street Pyrmont is approved and is subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 5, A and B. Catchwords: APPEAL: application to modify development consent for signage associated with a public car park Legislation Cited: City of Sydney Signage and Advertising Structures Development Control Plan 2005 Environmental Planning and Assessment Act1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 64 Urban Development Plan for Ultimo-Pyrmont Precinct Category: Principal judgment Parties: Wilson Parking Australia 1992 Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Mr G Green, solicitor (Applicant) Mr P Kapetas, solicitor (Respondent) Solicitors Pikes & Verekers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10889 of 2012 Judgment 1COMMISSIONER: This is an appeal against refusal by the Council of the City of Sydney of an application to modify development consent D/2011/309 under s 96(1A) of the Environmental Planning and Assessment Act 1979 granted on 27 April 2011 for signage associated with a public car park at 4 Point Street Pyrmont. 2The appeal was subject of a conciliation conference on 22 November 2012 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceedings forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). 3The conditions in dispute are conditions 2 and 6. These conditions state: (2) Design Modifications. The design of the building must be modified as follows: (a) the two (2) car park identification wall signs are to be reduced in size to 800 mm (w) x 2000 mm (h). The modifications are to be submitted to and approved by Council prior to a Construction Certificate being issued. (6) Signage-Time Limited Consent. The sign(s) and any associated structures must be removed and the building/site reinstated within a period of 3 years from the date of consent or on termination of the subject lease of the property, whichever occurs first. If the sign is to be retained after this period a new development application must be lodged with council before the expiration of the consent. 4The application seeks the deletion of both conditions 2 and 6. Condition 2 5The effect of condition 2 is to reduce the size of each sign from 3 m x 1.2 m to 2 m x 0.8 m. 6The council's town planning expert Mr Ben Chamie maintained that the size of the signs proposed by the applicant and which had been erected without approval are unacceptable for a number of reasons. First, the signs do not satisfy cl 3(1)(a)(i) of State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64), in that they are incompatible with the desired and visual character of the area. Second, the signs do not satisfy cl 4.5 of the Urban Development Plan for Ultimo-Pyrmont Precinct (the Precinct Plan) and cl 2.4 of the City of Sydney Signage and Advertising Structures Development Control Plan 2005 (DCP 2005) in that they are incompatible and do not complement the architecture of the building largely because they extend internally beyond the columns on which they are located. Third, the size of the signs do not satisfy Sch 1 of SEPP 64 and cl 2.4 of DCP 2005, in that the signs would distract a driver's attention and create a safety issue. Fourth, the size of the signs is inconsistent with cl 4.5 of the Precinct Plan in that they create clutter because of their size. 7Mr Coady, the applicant's town planner disagrees and states that the proposed size of the signs is acceptable because the signs are compatible with the desired amenity and visual character of the area and are consistent with the relevant objectives and controls set out in SEPP 64, DCP 2005 and the Precinct Plan. Mr Coady also rejects the suggestion that the signs are incompatible with the architectural features of the building or in this case, the columns to which they are attached. In his opinion, the fact that the signs are wider than the columns does not necessarily lead to a finding of incompatibility. The overhangs are internal and do not extend into the public domain. The overhangs of 470 mm for the northern sign and 270 mm for the southern sign are difficult to observe from the public domain and have little of any impact on the architectural form of the building. 8Mr Coady's conclusions are supported by Mr Robert Staas, an architect. He states that the signs relate well to the car park entry and are well positioned to provide modest but recognisable identification of the commercial car park use. The tall linear form of the signs respects the overall character of the architectural design and are not visually dominant or intrusive in the overall character of the building. 9With the benefit of a site inspection I agree with the conclusions of Mr Coady and Mr Staas. I do not accept that it cannot reasonably be said that the proposed size of the signs, at 3 m x 1.2 m, will have such an effect from that considered acceptable by the council, at 2 m x 0.8, given their location within the site and with limited visibility, that the signs will now be incompatible with the desired amenity and visual character, will reduce safety to an unacceptable level and will unacceptably impact on the architectural qualities of the building. The extent of change is minor, at worst. 10I find that the signs are not in conflict with the objectives in SEPP 64, DCP 2005 and the Precinct Plan and for these reasons condition 2 is deleted. Condition 6 11Condition 6 seeks to place a time limit on the signage. Mr Chamie states that the condition is reasonable and standard practice for the council and is required by cl 2.12 of DCP 2005. Clause 2.12 does not have specific objectives however Mr Charming states that this clause has three specific objectives, first, to ensure maintenance of illuminated signs, second, to ensure the operator of the premises maintains responsibility for the signs, if the site is vacated, and third, the ability to respond to any change to the desired future character of the area through changed planning controls. 12Mr Coady accepts that while time limited consents are appropriate for some forms of development it is not appropriate in this case as the impact of the signage can readily be determined without the need for a three year trial period. Further, the question of maintenance can be addressed through a condition of consent. 13If the need for condition 6 is considered against the underlying objectives for cl 2.12 identified by Mr Chamie and the specific details of the proposed signs, I am satisfied that Mr Coady's conclusions that the condition is unnecessary is correct for a number of reasons. 14First, I am not convinced that there is a valid link between a time limited consent and the on-going maintenance of illuminated signs, when a condition of consent is likely to be more preferable, given that the condition could require immediate repairs to any malfunctioning sign. Second, the use of the area for a public car park is a very specific land use. It is not a land use that can be readily changed to another land use, like a shop or an office. If for some reason there was a desire to change the car park use to a different land use, the question of signage would clearly need to be revisited. Again, I am unclear how a time limited consent would help address the issue of signage associated with a change of use. Third, and while accepting that time limited consents can have a valid planning reason where impacts are uncertain, the existing public car park use does not fall into this category. The impacts of the proposed signage can clearly be addressed at this time, so the use of time-limited consent is not appropriate. 15I find that there is no basis for a time limited consent so condition 6 is deleted. Orders The orders of the Court are: 1. The appeal is upheld. 2. The application to modify development consent D/2011/309 for signage for a public car park at 4 Point Street Pyrmont is approved and is subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 5, A and B. ______________ G T Brown 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: 10 December 2012