APN Outdoor Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1002

Land and Environment Court New South Wales

Medium Neutral Citation: APN Outdoor Pty Ltd v Council of the City of Sydney [2013] NSWLEC 1002 Hearing dates: 13, 14 December 2012 Decision date: 09 January 2013 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION - Advertising sign - LED digital display - Replacement of existing sign Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 South Sydney Local Environmental Plan 1998 State Environment Planning Policy No 64 - Advertising and Signage State Environmental Planning Policy No 1 - Development Standards Sydney Local Environmental Plan 2012 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446 Category: Principal judgment Parties: APN Outdoor Pty Ltd (Applicant) Council of City of Sydney (Respondent) Representation: Counsel Mr J Robson SC (Applicant) Dr S Berveling (Respondent) Solicitors Ms N Bergman, Allens (Applicant) Mr C To, City of Sydney (Respondent) File Number(s): 10858 of 2012

Judgment 1This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the determination of the respondent Council to refuse consent to development application D/2011/2123 made by APN Outdoor Pty Ltd (APN) for the replacement of an existing rooftop advertising sign on a building on the south western corner of Darlinghurst Road and William Street, Kings Cross (the site). 2The building on which the present and proposed advertising sign are located is identified in the development application as 169 Darlinghurst Road, and occupies part of two sites, 169-173 Darlinghurst Road and 5070 William Street. 169-173 Darlinghurst Road contains a three storey Victorian building with basement, with a nightclub on the lower ground floor, a restaurant on the ground floor and commercial uses on the first and second floors. 3The present approved advertising sign is located on the north eastern elevation of the building, with approved dimensions 15.9 m wide by 5.8 m high; and overhangs William Street by 620 mm. The part of William Street underneath the present and proposed sign is occupied by a level terrace area used for outdoor eating associated with the restaurant in the building. The present approved vinyl sign is illuminated by five upward facing fixed lights. The development consent authorising the present sign, originally granted in 1991 and subsequently modified, does not require a separate application for each change to the advertising display, and provides that no changes to the illumination be made without further development consent "including introducing a neon tubing or animation/flashing". 4Development application D/2011/2123 lodged on 22 December 2011 proposed an LED digital display sign 15.2m by 5.6m with a display area of 85.12 sqm. Council refused consent on 23 February 2012 and APN applied under s82A of the Act for a review of the refusal. The s 82A application included an amended scheme which proposed a sign 12.66m wide by 3.34 m high and a total display area of 42.41 sq m, overhanging William Street by approximately 300 mm at a height of 8 m above the roadway; an increase in the height of the building parapet on the eastern elevation of the building by approximately 2.8 m to match the height of the proposed sign; and a change in display every 15 seconds, with transition between advertisements in less than one second. On 18 October 2012 the Council's Small Permits Appeals Panel upheld the refusal of D/2011/2123. 5During the course of these proceedings the proposed development has been further amended. The proposed sign of 12.66 m by 3.55 m, with a total display area of 42.41 sq m, is now proposed to be positioned further to the west on the building elevation, and lower to a point approximately 300 mm above the existing window heads; the proposed extension to the building parapet is correspondingly reduced. This amendment resulted from the discussions between the heritage and urban design experts engaged by the parties, Ms Jennifer Hill on behalf of the Council and Professor Peter Webber and Mr Robert Staas on behalf of APN, reflected in their joint report (exhibit 11). During the course of the hearing APN also accepted an amendment to provide for a minimum 45 seconds per display and 0.1 second transition time.