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. Issues 6The Council's contentions as pressed relate to compatibility of the proposed sign with the desired amenity and visual character of the area; whether the proposal is satisfactory when assessed against the criteria in Sch 1 of State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64), in particular those criteria relating to character of the area, streetscape, compatibility with the site and building, illumination and safety; whether the proposal meets the requirements of cl 21 of SEPP 64 which applies to roof or sky advertisements; whether the proposal is consistent with the relevant zone objectives, or the objectives of the applicable development control plan; and the public interest, being the interests of the residents in the immediate vicinity of the site. 7It was common ground that the Court's powers under s 39(2) of the Land and Environment Court Act 1979 would extend, if development consent were granted, to the power to consent to that part of the development application constituted by the proposed 300 mm overhang of the William Street footway. Planning controls 8The site is zoned No 10 - Mixed Uses under the South Sydney Local Environmental Plan 1998 (the SSLEP) and is permissible with consent. The objectives of the zone are provided in cl 21, and those identified by the Council as relevant to the present application are: (a) to allow, in appropriate circumstances, a mixture of compatible land uses such a residential, retail, commercial, light-industrial and industrial development, and ... (e) to implement the principles of energy efficiency, travel demand management and other sustainable development practices as part of the development assessment process, and ... (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. 9Clause 10 of the SSLEP provides that the Council "must not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located". 10The site is not a heritage item or within a heritage conservation area under the SSLEP; it is within the Rosebank Conservation Area under the Draft Sydney Local Environmental Plan 2011, which describes its status as "neutral". The façade on which the present and proposed sign are located is a secondary façade, the building having been originally enclosed by a series of Victorian terraces extending to the original alignment of William Street before its widening, most recently for the construction of the William Street Tunnel. The Darlinghurst Fire Station, which is located on the opposite side of Darlinghurst Road to the south east of the site, is listed as a Local Heritage item under the SSLEP. Clause 23B of the SSLEP provides that a consent authority may decline to grant consent to a development application for building work on a building older than 50 years until it has considered a heritage impact statement. Clause 24 provides that the consent authority must not grant consent to development on land in the vicinity of a heritage item unless it has considered an assessment of the impact the proposed development will have on the significance of the item. The Council accepts that APN has provided a heritage impact statement, dated 19 November 2012, in relation to the amended proposal (exhibit 2, p240). 11During the course of the hearing, the Sydney Local Environmental Plan 2012 (the 2012 LEP) came into effect. Under the 2012 LEP the site is zoned B4 Mixed Use, and advertising signage is permissible with consent. Clause 1.8A of the 2012 LEP provides that a development application made and not finally determined before the 2012 LEP commenced must be determined as if the 2012 LEP "had been exhibited but had not commenced". 12State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) applies. Clause 13(1) of SEPP 64 provides: (1) A consent authority (other than in a case to which subclause (2) applies) must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires: (a) is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (c) satisfies any other relevant requirements of this Policy. 13The objectives in cl 3(1)(a) are: (1) This Policy aims: (a) to ensure that signage (including advertising): (i) is compatible with the desired amenity and visual character of an area, and (ii) provides effective communication in suitable locations, and (iii) is of high quality design and finish, and 14The assessment criteria in Schedule 1 to SEPP 64 relevant to the present application, as identified by the Council's contentions, are: 1 Character of the area · Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? ... 4 Streetscape, setting or landscape · Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape? · Does the proposal contribute to the visual interest of the streetscape, setting or landscape? · Does the proposal reduce clutter by rationalising and simplifying existing advertising? · Does the proposal screen unsightliness? · Does the proposal protrude above buildings, structures or tree canopies in the area or locality? ... 5 Site and building · Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located? · Does the proposal respect important features of the site or building, or both? · Does the proposal show innovation and imagination in its relationship to the site or building, or both? ... 7 Illumination · Would illumination result in unacceptable glare? · Would illumination affect safety for pedestrians, vehicles or aircraft? · Would illumination detract from the amenity of any residence or other form of accommodation? · Can the intensity of the illumination be adjusted, if necessary? · Is the illumination subject to a curfew? 8 Safety · Would the proposal reduce the safety for any public road? · Would the proposal reduce the safety for pedestrians or bicyclists? · Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas? 15Clause 18 of SEPP 64 requires the concurrence of the Roads and Traffic Authority (RTA) to the display of an advertisement with a display area greater than 20 sq m and within 250 m of a classified road any part of which is visible from the classified road. Both apply to the present application, and the Council referred the development application to the Roads and Maritime Services (RMS), formerly the RTA, which advised the Council by letter dated 29 February 2012 that concurrence was not granted. The Council referred the amended proposal put as part of the s 82A review, and by letter dated 16 October 2012 the RMS advised that concurrence would be granted subject to five requirements being complied with. Those requirements are that each advertisement must be displayed statically for a minimum of 30 seconds where the posted speed limit is greater than 80 k ph and 45 seconds where the speed limit is less than 80 k ph; the display must be completely static from its first appearance to the commencement of a change to another display; the transition time between advertisements must be not greater than 0.1 seconds; no advertisement displayed is to be dominated by red, yellow, white or green, or any shape or pattern so as to result in it being readily mistaken for a rail or traffic or road sign or signal; and light levels are to be consistent with section 3.2.5 "Illumination and Reflective" of the applicable guidelines. 16Clause 21 of SEPP 64 applies to "roof or sky advertisements", which is defined to mean an advertisement "displayed on, or erected on or above, the parapet or eaves of a building", and provides: 21 Roof or sky advertisements (1) The consent authority may grant consent to a roof or sky advertisement only if: (a) the consent authority is satisfied: (i) that the advertisement replaces one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed, or (ii) that the advertisement improves the finish and appearance of the building and the streetscape, and (b) the advertisement: (i) is no higher than the highest point of any part of the building that is above the building parapet (including that part of the building (if any) that houses any plant but excluding flag poles, aerials, masts and the like), and (ii) is no wider than any such part, and (c) a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct and the display of the advertisement is consistent with the development control plan. (2) A consent granted under this clause ceases to be in force: (a) on the expiration of 10 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or (b) if a lesser period is specified by the consent authority, on the expiration of the lesser period. (3) The consent authority may specify a period of less than 10 years only if: (a) before the commencement of this Part, the consent authority had adopted a policy of granting consents in relation to applications to display advertisements for a lesser period and the duration of the consent specified by the consent authority is consistent with that policy, or (b) the area is undergoing change in accordance with an environmental planning instrument that aims to change the nature and character of development and, in the opinion of the consent authority, the proposed roof or sky advertisement would be inconsistent with that change. 17The City of Sydney Signage and Advertising Development Control Plan 2005 (DCP 2005) commenced on 28 March 2005. The Objectives in cl 2.2 relevantly include considering the amenity of residential development and the visual quality of the public domain in the assessment of signage, and ensuring that the location and design of signs are consistent with road safety principles. 18Part 2.5 Illumination and Animation includes cl 2.5.8: 2.5.8 Animated signs are discouraged in the City of Sydney, unless otherwise stated in this DCP. Such signs include mechanical moving signs, 'moving' LED signs, video/television screens, projected laser advertising and other flashing, intermittently illuminated or sequenced lighting signs. 19Clause 2.5.11, which applies to signs at or near roof level, provides that illuminated signs "will have a period of consent for three years". 20Section 2.9 Signs and Road Safety states at cl 2.9.1 that signs are regarded as prejudicial to the safety of the travelling public if they obscure or interfere with road traffic signs and signals or with the view of other vehicles or persons; are of such a design or arrangement that any variable messages or intensity of lighting impair drivers' vision or distract drivers' attention; or are situated at locations where demands on drivers' concentration due to road conditions are high such as at major intersections. 21Section 6 of DCP 2005 establishes specific provisions for identified signage precincts, heritage conservation areas and heritage streetscapes. The design and location of signs on buildings or sites in the Signage Precinct Map "should be in accordance with" the provisions in section 6 (cl 6.3.1). Clause 6.4.9 applies to the William Street Precinct, in which the site is located, and includes the requirement at (iii) that signs "respond to the significant role of the area as a gateway into the City of Sydney". 22The City of Sydney Heritage Development Control Plan 2006 (the Heritage DCP) includes objectives and requirements for additions to existing buildings more than 50 years old. Evidence 23The hearing commenced on site with a view, including a view along Darlinghurst Road to the south and to the north of the intersection with William Street. Mr Andrew Woodhouse, President of the Potts Point and Kings Cross Heritage Conservation Society, gave oral evidence on site, and agreed notes of that evidence are exhibit 3. Mr Woodhouse stated that while the sign has been amended the impacts remain, and being better than the existing sign is not sufficient to justify approval. Written objections made to the Council by Mr Woodhouse, and by the occupants of 1305/1 Kings Cross Road, 10/274-290 Victoria Street, 17/238 William Street, and 21/238-242 William Street, are included in the Council's bundle (exhibit 2). Those objections relate to light pollution, detrimental effect on amenity, animation of the sign, increased light level, colours and content of the advertisements, and precedent. Exhibit 2 includes submissions in support of the application on behalf of the NSW Business Chamber. 24Expert evidence was given on behalf of the Council by Mr Alexander Scott (planning), Mr Lyle Marshall (traffic), Mr Barry Martin (lighting) and Ms Jennifer Hill (heritage). Expert evidence was given on behalf of APN by Ms Julie Bindon (planning), Mr Brett Maynard (traffic), Mr Gordon Watson (lighting), Professor Peter Webber (urban design) and Mr Robert Staas (heritage). The experts participated in joint conferences and provided separate and joint reports. Oral evidence was given by Mr Scott and Ms Bindon. 25The evidence included viewing a time lapse video, taken over a two hour period in changing light conditions, from a position diagonally opposite the proposed sign. The video shows a photomontage of the proposed sign in the position as proposed in the s 82A review, with changing advertisements timed with a display interval of 15 seconds. Consideration 26Based on the view, and the agreed evidence of the heritage and urban design experts, the sign in the location and at the height now proposed would not be visible from Darlinghurst Road approaching the intersection with William Street from the south. I accept the evidence of Dr Watson, also confirmed on the view, that the sign will be viewed by traffic on the east bound lanes of William Street, the south bound lanes of Darlinghurst Road, and traffic on Kings Cross Road; and that the closest and most impacted residential receiver is the property at 230-232 William Street, which is some 70 m away. I accept the agreed evidence of the heritage and urban design experts that the consequential lowering of the proposed new parapet to match the height of the proposed sign would bring the western elevation of the building into line with the adjoining building in Darlinghurst Road; and that the primary visual impact of the proposed sign is from the north and north-west in views from William Street and Kings Cross. It was common ground that the removal of the supports of the existing sign which are visible from Darlinghurst Road will improve the Darlinghurst Road streetscape. It was common ground that the existing sign is not subject to the controls as to content, colour and luminosity proposed for the replacement sign. Mr Martin and Dr Watson agreed that the proposed sign is operationally more acceptable, as the advertising material can be managed off-site without the need for personnel to physically change the content of the advertising material. 27Accepting this evidence, and noting that cl 21 of SEPP 64 expressly requires a comparison with the existing sign, I note that the determination of the development application in the form now before the Court requires an assessment of the proposed sign in accordance with the requirements of cl 13 of SEPP 64, the SSLEP and the 2005 DCP. The proposed sign must be assessed in its context, which is a part of the city which, based on Dr Watson's evidence, has a relatively high ambient illuminance, and, based on Mr Marshall's evidence and the view, is in a prominent location in view of motorists, pedestrians and cyclists negotiating busy signalised intersections. Illumination of the proposed sign 28Part 7 of Sch 1 to SEPP 64, and section 2.5 of the DCP 2005, require consideration of the illumination of the proposed sign. Dr Watson's evidence (exhibit F, [22]) was that the luminance (brightness) provided by the signage is to be set by local control equipment during the hours of darkness to a maximum luminance of 230 cd/m2, and during daylight hours luminance is to be controlled by local sensors which will regulate the luminance to a level commensurate with the ambient lighting levels. I accept the agreed evidence of Dr Watson and Mr Martin that the proposed sign meets relevant technical requirements, which are those provided in the NSW Transport Corridor Outdoor Advertising and Signage Guidelines (July 2007), and Australian Standard AS 4282-1997 (Control of the obtrusive effects of outdoor lighting). 29Dr Watson and Mr Martin agreed that the signage is in a Zone 1 location under the Transport Corridor Outdoor Advertising and Signage Guidelines, and that there is accordingly no limit on the day or night time luminance of signage. They agreed that the suggested maximum night time signage luminance of 230 cd/m2 is an acceptable level of luminance. 30The experts agreed that AS4282-1997, while excluding illuminated advertising signs, is relevant in assessing the nuisance value of general outdoor lighting. In assessing the proposed sign under the three criteria provided in AS4282, Dr Watson's evidence (exhibit F, [22]-[23]) was that the calculated vertical illuminance provided by the proposed sign on to the plane of the closest building with habitable windows where those windows are located is 1.86 lux. Dr Watson assessed the potential impact on the 15 other properties he identified as being able to view the proposed new signage, which included 1 Kings Cross Road and 238-242 William Street. He concluded that all other properties with a view of the sign will have a vertical illuminance less than that at 230-232 William Street, which is less than the maximum allowable under AS4282-1997 of 4lux. Mr Martin agreed in the joint report that that met the criteria of not being nuisance lighting. In relation to the second criterion, that luminous intensity emitted by signs likely to be troublesome to residents be less than 2500cd, Dr Watson's evidence (exhibit F, [25]) that the luminous intensity would be set, at installation, to be less than 2500cd, was not challenged by Mr Martin. Mr Martin noted (exhibit 7, [3.18]) that the setting of signage parameters to meet this criterion is complex and would need to take place each time the sign content was altered to ensure continuing compliance. Dr Watson and Mr Martin proposed a condition requiring review and certification of proposed images for compliance with AS4282-1997 and section 3.2.5 of the Transport Corridor Outdoor Advertising and Signage Guidelines, before images are put on display. Dr Watson and Mr Martin agreed that the threshold increment had been calculated to be less than 20 percent, which meets the third criterion of AS4282-1997. 31Based on the evidence of Dr Watson and Mr Martin, I am satisfied that the illumination of the sign will not result in unacceptable glare, affect safety for pedestrians or vehicles, or detract from the amenity of any residence, which are relevant assessment criteria under part 7 of Sch 1 to SEPP 64; and that the illumination is not likely to have an adverse effect on residential buildings, which is a requirement at cl 2.5.3 of the DCP 2005. Proposed condition 5(b) requires certification of each image by a chartered professional engineer with expertise in lighting for compliance with AS4282-1997, and condition 9, which incorporates the requirements of the RMS and specifically refers to section 3.2.5 of the Transport Corridor Outdoor Advertising and Signage Guidelines. I accept that these conditions should be imposed to ensure ongoing compliance. Impacts on traffic and safety 32Part 8 of Sch 1 to SEPP 64, and section 2.9 of DCP 2005, require consideration of traffic and safety issues. I accept the evidence of Mr Marshall and Mr Maynard, which was confirmed on the view, that the proposed sign will be visible for a driver travelling southbound along Darlinghurst Road from Bayswater Road, and that a driver travelling east on William Street on the western approach to the tunnel, or on the William Street off-ramp towards Darlinghurst Road, would have to turn their head up from the road to view the sign. The traffic experts assessed the proposed sign against the guidelines in the NSW Transport Corridor Outdoor Advertising and Signage Guidelines, in particular 3.2.1 Sign Location and Design, which includes requirements that advertisements not distract a driver's attention away from the road environment for an extended length of time or distract from or reduce the visibility and effectiveness of directional signs, traffic signals and other traffic control devices; and 3.2.3 Moving Signs, which includes a requirement that the driver should not expect to see more than one message in the period of exposure during normal driving conditions. 33Mr Marshall (exhibit 6) assessed the visibility of the sign for a driver travelling from Bayswater Road to Craigend Street, a driver travelling east in William Street on the western approach to the tunnel, and a driver travelling west on the William Street off-ramp towards Darlinghurst Road. In his opinion the sign needs to be static for 45 seconds to avoid distracting drivers at a critical time. Mr Marshall also assessed the proposed sign against the criteria in Sch 1 to SEPP 64, the objectives in cl 2.2 and requirements in 2.9 Signs and Road Safety in the DCP 2005, and concluded that unless the sign display is in accordance with the RMS requirements it would have a negative impact on traffic safety. In his opinion, the proposed display time of 15 seconds might distract road users at a critical time; compliance with the RMS requirement of 45 seconds was likely to reduce the level of risk. 34Mr Maynard's evidence (exhibit G) was that while Darlinghurst Road has a comparatively high pedestrian accident history, the location of the sign within drivers' line of sight would not result in a quantifiable impact on pedestrian safety. The speed limit along Darlinghurst Road is 50 k ph; based on his assessment of the period of exposure during normal driving conditions, a driver travelling at 30 k ph would typically view and read only one message at 15 seconds display time; and while during congested periods general vehicle speeds may be below 30 k ph, longer exposure times would be coupled with stationary periods or low travel speeds where demands on drivers are not as high. Mr Maynard's position, maintained in the joint report (exhibit 8), was that having reviewed the then proposed display interval of 15 seconds from the perspectives of vehicle travel speeds as recorded on-site, traffic flow characteristics and international guidance, it was appropriate, and consistent with other comparable sites in Sydney and Melbourne where display intervals ranged from 8-15 seconds. 35The acceptance by the applicant of a condition requiring a display interval of 45 seconds and compliance with the other requirements of the RMS means that it is not necessary to decide whether to accept the evidence of Mr Maynard or that of Mr Marshall. On either basis, it can be concluded that the proposed display interval of 45 seconds, with a change time of less than 0.1 second, would minimise the risk of distraction for drivers and others. In considering the assessment criteria in part 8 of Sch 1 to SEPP 64, I am satisfied that the proposed sign would not reduce safety for drivers or other road users; and the proposed sign would not impair drivers' vision or distract attention, or otherwise be prejudicial to the safety of the travelling public in the terms identified in cl 2.9.1 of DCP 2005. Heritage issues 36The Statement of Heritage Impact (November 2012) considered the heritage significance of the Darlinghurst Fire Station, the draft Rosebank Heritage Conservation Area, and the building on which the sign is proposed, and the history of the existing sign, and concluded that the proposed new sign would not adversely affect the identified heritage significance of the Darlinghurst Fire Station or the role of the existing building as a "neutral" element in the draft Conservation Area. The heritage and urban design experts agreed that the existing approved sign already forms part of the visual context of the draft Rosebank Conservation Area, and the setting of the Darlinghurst Fire Station, and that signage in this location has historical precedent. They agreed that because the proposed signage is substantially smaller and lower than the present signage, it relates better with the host building than the currently approved sign in terms of location, size and appearance. They agreed that the adjustments to the height and location, and the lowering of the proposed new parapet in Darlinghurst Road, agreed on during the course of the hearing, would result in an acceptable outcome. I accept that evidence. Planning issues 37The expert planners agreed that the proposed sign provides effective communication and is of high quality design and finish, and thus satisfies cl 3(1)(a)(ii) and (iii) of SEPP 64; that it does not obscure views, impact on viewing rights of other advertisers, and satisfies part 6 of Sch 1 to SEPP 64; and that the proposal that the sign be used for community and emergency messaging for one sixth of the time would be a public benefit. The planners disagreed as to whether the proposed sign is consistent with the objective in cl 3(1)(a)(i) of SEPP 64, and its assessment against the criteria in parts 1, 4 and 5 of Sch 1 to SEPP 64, the objectives of Zone 10-Mixed Uses, and the provisions of DCP 2005. The central point of disagreement related to the changing display, Mr Scott agreeing in oral evidence that if the sign were static, it would be appropriate. 38Mr Scott's evidence was that the appropriate timing for the display interval is five minutes. That evidence was based on his opinion that the sign falls within the provision relating to "animated signs" in cl 2.5.8 of the DCP 2005. In Mr Scott's opinion (exhibit 4, pp19-20), while an LED digital display billboard is not included as one of the examples in cl 2.5.8, the proposed sign could be considered a successor to a "mechanical moving sign", it could also be described as a "moving LED sign", depending on how frequently the images are refreshed; and it also fits the description of "other flashing, intermittently illuminated or sequenced lighting signs". His concern was to identify the dwell time at which the sign would be read as an "animated" sign for the purposes of cl 2.5.8. Mr Scott stated that he derived the time of five minutes based on his walking south along Darlinghurst Road north of the intersection with William Street from a point where he would first see the sign, to the point where he could not longer see it. At a display interval of 45 seconds he would have seen six changes of sign, so at a five minute interval he would have seen one or two different displays. Mr Scott conceded that in reaching this opinion he had not read the statements of evidence provided by Dr Watson or Mr Maynard, both of whom he accepted are experts in their respective fields; or any other published material; and had not made inquiries of any other local government authorities as to their required dwell times for similar signs. 39Ms Bindon did not consider the sign to be an "animated" sign, relying on the dictionary definition of "animated". In her opinion (exhibit C) the sign cannot be reasonably or accurately described as "animated", nor could the messages or images displayed be described as animations. The images are distinct from one another, are static, and change at considerably lower frequency than if the images were animated. 40Clause 2.5.8 does not expressly refer to digital display signs of the kind proposed. Mr Scott's evidence was that this may be because at the time of drafting the DCP 2005, such signs were not widely used in Australia. Whether or not that is so, cl 2.5.8 must be construed, and taken into consideration as required by s 79C(1)(a)(iii) of the Act. Based on the video recording, I agree with Ms Bindon that the sign would not fall within a dictionary definition of the term "animated", which the Macquarie Dictionary (online edition) defines to include "...2. moving or made to move as if alive; 3. of or relating to a film, or part of a film, which consists of a series of drawings, each slightly different from the ones before and after it, so that, when run through a projector, they produce a moving image". However, cl 2.5.8 is not so limited in its terms, and includes mechanical moving signs, and intermittently illuminated or sequenced lighting signs. The proposed sign involves a changing sequence of illuminated displays, and whether that change occurs at intervals of 15 or 45 seconds, or at 5 minutes, it would in my view fall within cl 2.5.8. 41Whether or not it is correct to conclude that the proposed sign would fall within cl 2. 5.8, that provision does not prohibit such signs, but states that they are "discouraged". The basis for such discouragement is to be found in the objectives in cl 2.2, in particular the objectives relating to the amenity of residential development and the visual quality of the public domain, and road safety, and in the specific provisions in section 2.5 Illumination and Animation. Those provisions include provisions addressing residential amenity (cl 2.5.4), and adjustment of light intensity (cl 2.5.6). 42I am not persuaded that a minimum display time of 5 minutes rather than 45 seconds would of itself make the difference suggested by Mr Scott, either in terms of whether the proposed sign would fall within cl 2.5.8 of DCP 2005, or in terms of its acceptability, either because it falls within cl 2.5.8, or more generally. Even if a person walking along Darlinghurst Road towards the sign would see more than one change of sign, based on the video recording, which Mr Scott accepted, there is no flashing or flickering, simply a change from one display to the next. In considering the potential impacts of the changing display, the degree and control of illumination are clearly critical factors, and on the basis of the evidence of Dr Watson and Mr Martin, meet relevant technical standards so as not to constitute nuisance lighting or be troublesome to residents. I accept the evidence of Mr Martin (exhibit 7, [3.20]) that coloured and varying signs may have an annoyance value, such that flickering or regularly changing lighting can be more annoying than a constant light of the same average level. Mr Martin recommended that a logical approach would be to avoid large and sudden changes in colours and intensity. That approach is partially addressed in the condition proposed by Dr Watson and Mr Martin, and included as draft condition 5(b), and also in the requirements of the RMS, incorporated in proposed condition 9, which includes a requirement that the display be completely static from its first appearance to the commencement of a change to another display. Having regard to those factors, I am not persuaded that there is a basis for imposing a requirement for a longer display period than that required by the RMS requirements to address safety concerns. I am satisfied that even if cl 2.5.8 applies, in all the circumstances the sign would be consistent with the objectives expressed in cl 2.2 of the DCP 2005, and cl 2.5.8 would not be a basis for refusal of the application. 43I agree with Ms Bindon that the locality comprises a mixture of uses including apartments, shops and hotels, restaurants, bars and other late night entertainment premises, and that the existing character of the area is that of a vibrant and busy inner city area. The proposed sign is smaller and simpler than the existing sign, and the structural support would be screened. Considering the proposed sign in its context, I agree with Ms Bindon that while the proposal does not reduce the number of signs, the sign is not incompatible with the scale, proportion and other characteristics of the building; and in its context would not dominate the skyline and streetscape. I am satisfied that at the size and in the location now proposed, and subject to the constraints expressed in the proposed conditions as to illumination and timing, the proposed sign is acceptable in terms of its impact when considered against the assessment criteria in parts 1, 2, 3, 4 and 5 of Sch 1 to SEPP 64, and that it is compatible with the desired amenity and visual character of the area and is consistent with cl 3(1)(a)(i) of SEPP 64. Clause 21 and the SEPP 1 objection 44Clause 21 of SEPP 64 applies to the proposed sign. Clause 21 is one of the specific provisions applicable to particular forms of advertising signage in SEPP 64, and permits approval of a roof advertisement only where the proposed sign is a replacement for an existing advertisement, as is the case with the present application, and where it meets a number of additional requirements. The existing building has a pitched roof and chimney structure that extends above the building parapet. Based on the plans (exhibit A), the amended proposal sits below the height of the chimney structure, however it extends beyond the width of the existing pitched roof by approximately 150 mm. 45Based on the agreed evidence of the urban design and heritage experts, I am satisfied that the sign in the location now proposed relates better to the roof of the building in terms of height and width, and that by removing the presently visible supports and structure, improves the visual amenity of the locality, in particular from Darlinghurst Road; and that cl 21(1)(a) is satisfied. The relevant development control plan for the purposes of cl 21(1)(c) is the DCP 2005. I am satisfied that the proposed sign is consistent with the objectives in cl 2.2, and that, for the reasons above, it would be consistent with the specific provisions relating to the relationship to the building, extent of illumination, and safety, in the DCP 2005. Clause 21(1)(c) is satisfied. 46It was common ground that the amended proposal meets cl 21(1)(b)(i), however, it does not meet cl 21(1)(b)(ii). APN provided an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to this development standard in the material in support of the s82A review application. In Wehbe v Pittwater Council (2007) 156 LGERA 446, Preston CJ held (at [37]-[40]), that the Court must be satisfied of three matters before it can uphold a SEPP 1 objection and grant development consent. Those matters are, first, that the Court is satisfied that the objection is well founded (cl 7 of SEPP 1), which places the onus on the applicant making the objection; secondly, the Court must be of the opinion that granting consent to the development is consistent with the aims of the SEPP1 as set out in cl 3 (cl 7 SEPP 1); and thirdly, the Court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the objection. 47I accept APN's submission that the objective of the development standard controlling the width of roof advertisements can be determined by reference to the objects of SEPP 64, in particular cl 3(1)(a), and is to ensure that the design quality and appearance of signage that because of its location is likely to be visible from the public domain, or otherwise potentially of concern, is appropriate in the context of the particular location. Based on the findings above as to compatibility with the desired amenity and visual character of the area; the improved relationship to the roof of the building in terms of height and width; the removal of the presently visible supports and structure; and the improvement to the Darlinghurst Road façade of the building, I accept APN's submission that the proposed sign achieves the objectives of the standard, notwithstanding the non-compliance with cl 21(1)(b)(ii), and on that basis compliance with the development standard is unreasonable or unnecessary. I am satisfied that the objection is well founded and that the granting of consent to the application is consistent with the aims of SEPP 1. I accept APN's submission that the proposed development and non-compliance do not raise any matters of significance for State or regional environmental planning, or in relation to the public benefit in maintaining the planning controls expressed in cl 21(1)(b)(ii). 48I am satisfied that it is appropriate to uphold the SEPP 1 objection. Clause 21 of SEPP 64 is satisfied, and accordingly, consent can be granted. Impact on residential amenity 49The Council contends that approval of the sign would not be in the public interest, on the basis that it would not be in the interest of the residents in the area or a large number of motorists driving past the area. In submissions the Council focussed on impacts on residents, as identified in the written objections. The evidence as to the illumination level and its impact on the potentially affected residences, meets the concerns expressed as to light intensity. The development in the form now proposed, and subject to the conditions proposed to be imposed, would meet the other objections relating to flashing lights, and rapidly changing, animated or moving images. 50Objective (h) of the No 10-Mixed Uses zone under the SSLEP is to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. I am satisfied that in the context of the locality, the proposed illumination level, and the other constraints imposed in the proposed conditions relating to certification of proposed images, prohibition of flashing, and prohibition of objectionable glare or injury to amenity by reason of intensity, period of intermittency and hours of operation, address the concerns raised in the residents' objections. Conclusion 51I am satisfied that the proposed development is consistent with the objectives set out in cl 3(1)(a) of SEPP 64, is acceptable in terms of its impacts when assessed in accordance with the assessment criteria in Sch 1 of SEPP 64, and satisfies cll 18 and 21 of SEPP 64. I am satisfied that the proposed development is consistent with the relevant zone objectives in cl 21 of the SSLEP, in particular objective (h). The proposed conditions, in particular condition 5 requiring compliance with AS4282-1997 and certification of proposed images, condition 9 imposing the RMS requirements (including a minimum display period of 45 seconds), and condition 10 requiring a safety audit and risk analysis to be carried out by an independent RMS accredited road safety auditor after 12 months' operation, are appropriate. 52The Council had initially pressed for a consent limited to a period of three years. While cl 2.5.11 of DCP 2005 imposes such a restriction, the Council accepts that the relevant development control plan in force at the date Part 3 of SEPP 64 commenced (16 March 2001) did not impose a time period for development consents, and that cl 21(3) of SEPP 64 would not permit the specification of a period of less than 10 years. Condition 3 limits the period of the consent to 10 years. 53I am satisfied that it is appropriate to grant consent to the proposed development, subject to the proposed conditions. The Council agreed that if I reached that conclusion, it would be appropriate in the exercise of the power conferred by s 39(2) of the Court Act for the Court to consent to that part of the development application constituted by the proposed overhanging of William Street. In doing so, I note that condition 7 of the proposed conditions requires APN to obtain a separate approval under s 138 of the Roads Act 1993. 54The orders of the Court are: 1. The appeal is upheld. 2. Development application D/2011/2123 for the replacement of an existing rooftop advertising sign at 169 Darlinghurst Road, Kings Cross, is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, B, K, 1 and 12. 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: 09 January 2013