Land and Environment Court New South Wales Medium Neutral Citation: Legge v North Sydney Council [2018] NSWLEC 1288 Hearing dates: 9,10 May 2018, Mention 24 May 2018 Date of orders: 15 June 2018 Decision date: 15 June 2018 Jurisdiction: Class 1 Before: Brown C Decision: See orders at [98] and [118] Catchwords: DEVELOPMENT APPLICATION and MODIFICATION APPLICATION: two separate appeals, the first relating to a development application that seeks the removal of existing signage and the replacement with new signage and the second, the modification of an existing sign approval; both appeals seek the erection of three digital LED roof top signs/advertising structures on an existing building; whether power to grant approval or modify existing approval; incompatible with the surrounding area; unacceptable illumination impacts; out of character and will dominate the existing building and locality; exceedance of the maximum height development standard; impact on existing views and vistas; impact on traffic safety; undesirable precedent; undesirable heritage impact; resident objections Legislation Cited: Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy No.64 - Advertising and Signage Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSWLEC 75 Benmill Pty JB No. 3 Pty Ltd v North Sydney Council (2007) Gill v Donald Humberstom & Co Ltd [1963] 3 All ER 180 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Segal & Anor v Waverley Council [2005] NSWCA 310 Woolworths Ltd v Pallas Newco Ply Ltd [2004] NSWCA 422; 61 NSWLR 707 Texts Cited: Joint Expert Report Policy Category: Principal judgment Parties: Tony Legge (Applicant) North Sydney Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) R Lancaster SC & T March (Respondent) Solicitors: Hones Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/108602 & 2017/258638 Publication restriction: No Judgment 1. COMMISSIONER: These are two separate appeals that both relate to the removal of existing signage and the erection of three digital LED roof top signs/advertising structures on the building at 275 Alfred Street North, North Sydney (the site). The building is known as the Bayer building. 2. The existing signage consists of a Bayer Cross sign on the western elevation which has dimensions of 6.7m x 6.7m and a maximum height to RL 60.75 for the western façade. The northern and southern elevation signs have a small Bayer Cross sign and Bayer lettering sitting below the maximum roof height. The existing signage is not solid or located on a solid panel but individual symbols and letters attached to a frame that is attached to the upper level of the building (Figure 1 below). 1. The proposed advertising would consist of rectangular format solid panels (see Figure 2 above) with changeable LED digital screens having the following dimensions: * northern elevation: 4.2m (H) x 15.8m (W) with a total area of 66.4 sqm. * western elevation: 6.76m (H) x 6.76m (W) with a total area of 45.7 sqm. * southern elevation: 4.2m (H) x 15.8m (W) with a total area of 66.4 sqm. 1. The proposed signs are to be placed in the same location as the existing signage on building's existing roof feature. The signs are to display interchangeable static digital advertisements between 7am and 11pm daily and have a minimum display period (dwell-time) of 1 week. The advertising panels are to be electronically controlled to limit light intensity. The Appeals 1. Proceedings 2017/108602 is an appeal against the deemed refusal of Development Application 40/17 for "removal of rooftop BAYER signage and install three dynamic/changeable LED advertising panels" (Exhibit B, p3)(DA Appeal). The council maintains that the application must be refused because there is no power to approve the DA Appeal because of specific provisions in State Environmental Planning Policy No.64 - Advertising and Signage (SEPP 64) which are set out later in the judgment. The council maintains in their Amended Statement of Facts and Contentions that the application should be refused for the following reasons: * the application is incompatible with the surrounding area, * the application will create unacceptable illumination impacts, * the application is out of character and will dominate the existing building and locality, * the application will exceed the maximum height development standard, * the application will impact on existing views and vistas, * the application will impact on traffic safety, * the application will introduce technology that is inconsistent with the desired future character for signage, * the application will create an undesirable precedent, and * the application will have an undesirable heritage impact. 1. Proceedings 2017/258638 is an appeal against the deemed refusal of, at the time, a s 96(2) (now s 4.55(2)(a)) modification application (the Modification Appeal) of the Environmental Planning and Assessment Act 1979 (the EPA Act). The Modification Appeal "seeks approval to amend the existing approved signage to the rooftop of the Bayer building to dynamic/changeable LED advertising panels" (Exhibit C, p4). The council maintains that the Modification Appeal must be refused because firstly, there is no power to approve the application under SEPP 64 and secondly, the non-satisfaction with the pre-condition that the modification is substantially the same as that originally approved. The council maintains that the application should also be refused for the merit reasons set out in the previous paragraph. 2. A number of residents provided evidence on the site inspection and supported the council's opposition to the DA Appeal and the Modification Appeal largely on the basis that the illumination from the proposed signs would adversely affect the enjoyment of their residential properties and that any approval would be a precedent for similar applications. Background 1. The history of the existing roof signs is relevant and consists of: * 22 November 2007 - the Land & Environment Court upheld an appeal in Benmill Pty JB No. 3 Pty Ltd v North Sydney Council (2007) NSWLEC 680 and granted development consent for "re-cladding of the existing building at 275 Alfred Street, North Sydney and the erection of a roof sign" (the 2007 approval). Condition A2 & A3 of the consent applied a time limit of 10 years on the duration of the consent and required separate and further consent for the approved sign to remain in situ or for further changes to the approved sign, including any change to content. The time limitation imposed by Condition A2 to this consent expired on 22 November 2017. * 11 July 2016 - Development Application No. 163/16 was approved by North Sydney Council for "extension/continued use of rooftop sign" which permits the continuation of the use of the roof sign for a further 10 years subject to compliance with the approved conditions of consent in DA 59/07 (the 2016 approval). Condition A2 of DA 163/16 originally provided that: Separate DA A2. Approval is granted for "building identification signs", as defined in North Sydney Local Environmental Plan 2013. No consent is granted or implied for any displays in the nature of an "advertisement" or for any "advertising structures" as defined in the North Sydney Local Environmental Plan 2013. A separate development application is required to be lodged for any changes to the signage in relation to: (a) Enlargement/alteration of Display area; (b) Signage content; (c) Animation, flashing, changing, scrolling and/or moving imagery; (Reason: To clarify the scope of development approval and to ensure that the approved signage remains "building identification signage" rather than "advertisement" or general advertising) * 9 September 2016 - Condition A2 of Development Application No. 163/16 was modified by North Sydney Council to read: Separate DA A2. A separate development application is required to be lodged for any changes to the design, size, height, colour or external form of the existing signage including any change relating to: (a) Enlargement/alteration of Display area; (b) Signage content; (c) Animation, flashing, changing, scrolling and/or moving imagery; (Reason: To clarify the scope of development approval is for the use of the existing roof sign) The site 1. The site is bounded by Alfred Street North to the west, Little Alfred Street to the east and the Warringah Freeway to the west. The site contains the 17 storey Bayer building which has a roof-top metal clad structure which is pitched and set back from the building parapet. This area houses the lift overrun and mechanical plant for the building. The existing signs are attached to the metal clad structure. 2. The surrounding area is characterised by a mix of commercial development, high rise residential development as well as medium density residential developments, attached and detached dwellings. 3. The Bayer building and roof top signs are prominently located because of the height of the building. The signs can be viewed from the Warringah Freeway, Sydney Harbour Bridge, Sydney Harbour waterway, surrounding residential areas and public spaces, such as St Leonards Park. Relevant planning controls 1. The site is within Zone B3 Commercial Core under North Sydney Local Environmental Plan 2013 (LEP 2013). "Signage" is a permitted use in this zone, with consent. "Signage" is defined in the Dictionary LEP 2013 to mean: signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following: (a) an advertising structure, (b) a building identification sign, (c) a business identification sign, but does not include a traffic sign or traffic control facilities. 1. Other relevant definitions include (some after reference to the EPA Act): advertising structure means a structure used or to be used principally 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 building, the street name and number of a building, and a logo or other symbol but 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 or business, and (ii) the nature of 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 contain any advertising relating to a person who does not carry on business at the premises or place 1. The proposed signage is characterised as an "advertisement" under LEP 2013. 2. Clause 2.3(2) provides that the Court must have regard to the zone objectives when determining a development application although no specific contentions are raised in relation to cl 2.3(2). The B3 zone objectives are: * To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community. * To encourage appropriate employment opportunities in accessible locations. * To maximise public transport patronage and encourage walking and cycling. * To prohibit further residential development in the core of the North Sydney Centre. * To minimise the adverse effects of development on residents and occupiers of existing and new development. 1. Clause 4.3(2) provides that a building "is not to exceed the maximum height shown on the Height of Buildings Map". The height shown on the Height of Buildings Map for the site is 13m whereas the existing building is around 60.75m. In accepting that the overall height of the building will not increase with the proposed signage, a written request was provided under cl 4.6 to show why the variation to the maximum height was acceptable. The council raised no issue with the cl 4.6 written request and after having read the written request, I concur that the variation can be supported, in this instance for the reasons set out in the written request. 2. Clause 5.10 provides Heritage conservation requirements and applies to the site given that adjacent to the east, and also to the north is the Whaling Road Conservation Area (conservation area). The site is also in proximity to a number of heritage items identified in Sch 5 of LEP 2013. 3. North Sydney Development Control Plan 2013 (DCP 2013) applies. Relevant parts are Part B Section 2 Commercial & Mixed Use Developments, s 2.3.8 Views Objectives 01 and 02 and P3, P4 and P5, s 2.4.6 Skyline Objective 01 and P3, P4 and P6 and Part B Section 9 Advertising and Signage. 4. Draft Amendment to Section 9 Advertising and Signage - North Sydney Development Control Plan 2013 (Draft DCP) has been advertised but not adopted by the council. The Draft DCP seeks to amend Section 9 Advertising and Signage of DCP 2013. The proposed amendments include changes to controls for Identification signs including business and building (s 9.11) and controls for Identification signs including business and building identification signs. Additional controls are proposed to regulate development containing 'roof signs' and 'digital signs' (s 9.12). 5. The Draft DCP was advertised in late January 2017 and was considered by the council on 22 May 2017 where, amongst other matters, the council staff were required to prepare a report and report back to council. To date, this report has not been prepared. 6. State Environmental Planning Policy No.64 - Advertising and Signage (SEPP 64) applies and was a source of dispute between the parties. The relevant parts of SEPP 64 are cl 3 - Aims & Objectives, cl 7 - Relationship with other environmental planning instruments, cl 8 - Granting of consent to signage, cl 13 - Matters for consideration, cl 17 - Advertisements with display area greater than 20sqm or higher than 8 metres above ground, cl 21 - Roof or Sky Advertisements and Schedule 1 - Assessment Criteria. 7. The Definitions in SEPP 64 include (some after reference to the Standard Instrument): advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement. signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes: (a) building identification signs, and (b) business identification signs, and (c) advertisements to which Part 3 applies, but does not include traffic signs or traffic control facilities. building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but 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 or business, and (ii) the nature of 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 contain any advertising relating to a person who does not carry on business at the premises or place. roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building. 1. The proposed signage is characterised as an "advertisement" under SEPP 64. 2. The site is located within the Sydney Harbour Catchment under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the REP). The relevant parts are cl 20 General, cl 25 (b) - Foreshore and waterways scenic quality and cl 26 - Maintenance, protection and enhancement of views. The DA Appeal Is there power to approve the DA Appeal? The legislative framework- SEPP 64 1. The relevant parts of SEPP 64 are: 2. Clause 3 states: 3 Aims, objectives etc (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 (b) to regulate signage (but not content) under Part 4 of the Act, and (c) to provide time-limited consents for the display of certain advertisements, and (d) to regulate the display of advertisements in transport corridors, and (e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors. (2) This Policy does not regulate the content of signage and does not require consent for a change in the content of signage. 1. Clause 8 states: 8 Granting of consent to signage A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied: (a) that the signage is consistent with the objectives of this Policy as set out in clause 3(1)(a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1. 1. Clause 13 states: 13 Matters for consideration (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. (2) If the Minister for Planning is the consent authority or clause 18 or 24 applies to the case, the consent authority 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 in the Guidelines and the consent authority is satisfied that the proposal is acceptable in terms of: (i) design, and (ii) road safety, and (iii) the public benefits to be provided in connection with the display of the advertisement, and (c) satisfies any other relevant requirements of this Policy. (3) In addition, if clause 18 or 24 applies to the case, the consent authority must not grant consent unless arrangements that are consistent with the Guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement. 1. Clause 17 states: 17 Advertisements with display area greater than 20 square metres or higher than 8 metres above ground (1) This clause applies to an advertisement: (a) that has a display area greater than 20 square metres, or (b) that is higher than 8 metres above the ground. (2) The display of an advertisement to which this clause applies is advertised development for the purposes of the Act. (3) The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless: (a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (b) the application has been advertised in accordance with section 79A of the Act, and (c) the consent authority gave a copy of the application to RMS at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies. 1. Clause 18 applies to advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road. The clause provides, in part, that the Court must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of Roads and Maritime Services (RMS) (cl 18(2)). As RMS concurrence has been obtained, this clause is satisfied. 2. Clause 19 states: 19 Advertising display area greater than 45 square metres The consent authority must not grant consent to the display of an advertisement with an advertising display area greater than 45 square metres unless: (a) 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, or (b) in the case of the display of an advertisement on transport corridor land, the consent authority is satisfied that the advertisement is consistent with the Guidelines. 1. Clause 21 states: 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. 1. Schedule 1 states: Schedule 1 Assessment criteria (Clauses 8, 13 and 17) 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? • Is the proposal consistent with a particular theme for outdoor advertising in the area or locality? 2 Special areas • Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas? 3 Views and vistas • Does the proposal obscure or compromise important views? • Does the proposal dominate the skyline and reduce the quality of vistas? • Does the proposal respect the viewing rights of other advertisers? 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? • Does the proposal require ongoing vegetation management? 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? 6 Associated devices and logos with advertisements and advertising structures • Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed? 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? The relevant requirements – SEPP 64 1. SEPP 64 provides a number of requirements that apply to the proposed signage. There is also a degree of overlap in these requirements. Unlike some other planning requirements, cll 8,13,17,18,19 and 21 of SEPP 64 are all conditions precedent to the grant of development consent and all conditions precedent must be satisfied before the merits of the application can be considered. While the Amended Statement of Facts and Contentions (p 10) identifies the range of relevant clauses; being cll 8,13,17,18, 19 and 21; the contentions do not address each of the clauses; for example cll 13 and 17 are identified as being relevant but are not raised in the contentions. Of the identified contentions, the submissions focused on cll 19(a) and 21(1)(c) that addresses the situation where a development control plan is in force and has been prepared on the basis of an advertising design analysis. I note that SEPP 64 provides no hierarchy or prioritising of any requirements when considering applications for signage. 2. To understand the parties position on what appeared to be some confusion on the proper consideration of the relevant matters in SEPP 64, a telephone Mention was held on 24 May 2018. Mr Hones, for the applicant, submitted that the applicant relied on the contentions produced by the council and that these contentions were used as the basis for the preparation of the applicant's evidence and the submissions by counsel. Mr Hones described this approach as addressing the "principal contested issues", consistent with the findings in Segal & Anor v Waverley Council [2005] NSWCA 310. He submitted, for example, that the requirements in cl 17 needed to be satisfied, however the council, in not raising this clause as a contention, accepted that the requirements in cl 17 have been addressed to the satisfaction of the council. As I understand, Mr Marsh, for the council, generally accepted the approach of Mr Hones. 3. In considering these submissions, I am not satisfied that the approach adopted by Mr Hones and Mr Marsh is the correct one. For example, cl 17(3)(a) requires that the consent authority to form the opinion that " the assessment criteria in Schedule 1 … is satisfied (and) that the proposal is acceptable in terms of its impacts". Using Mr Hones' approach, cl 17(3)(a) was not identified as a contention (but was identified as being a relevant requirement) so I should assume that the council is satisfied that the assessment criteria in Schedule 1 are satisfied. However, cl 8 was also identified as being a relevant requirement (Exhibit 3, p18) and also identified as a contention. This clause requires the consent authority to be satisfied that "that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1". Clearly, the requirements in cl 8(b) and cl 17(3)(a) require virtually the same test of satisfaction in relation to Schedule 1. 4. In any event, the experts addressed the main areas in dispute even though they may have not specifically addressed the specific relevant clauses in SEPP 64. I am satisfied that I am able to properly address the requirements of SEPP 64 on the evidence provided by the experts. Less confusion would have occurred if the joint report was prepared in accordance with the Court's Joint Expert Report Policy (at par 7) where, amongst other matters, experts are encouraged to "group like contentions together" even if this is not done in the Statement of Facts and Contentions. 5. If the specific contentions are grouped together then SEPP 64 requires the Court to form the opinion that it is satisfied that the proposed signage must: * be consistent with the objectives of SEPP 64 (cll 8(a) and13(a)), * satisfy the assessment criteria specified in Schedule 1 (cll 8(b), 13(1)(b), 17(3)(a)), * have a development control plan in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct, (cl 18(2)(a), cl 21(1)(c)) and * improve the finish and appearance of the building and the streetscape by way of replacement one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed (cl 21(1)(a)(ii)) or that the advertisement improves the finish and appearance of the building and the streetscape (cl 21(1)(a)(ii)). Schedule 1 - cll 8(b), 13(1)(b), 17(3)(a) 1. I propose to address Schedule 1 as the schedule provides the range of matters raised by the council and requires a definitive response as to the acceptability or otherwise of the proposed signs. Schedule 1 is called up in three separate clauses in SEPP 64 and the requirements in these clauses are required to be satisfied prior to any consideration of the merits of the appeal. Schedule 1 also addresses matters that are also identified in other clauses of SEPP 64. Unfortunately, the joint report is unhelpful and does not specifically address Schedule 1 but simply states that "This is a broad particular that overlaps many other contentions and is considered to be dealt with throughout those."(Contention B1.9, Particular (b)). 2. Schedule 1 has a number of requirements, some are relevant and some are not, in this case. In my view, the relevant requirements are: * Character of the area, * Special areas (heritage), * Views and vistas, * Streetscape, setting or landscape, and * Illumination. Character of the area – the evidence 1. The relevant criteria are: * Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? * Is the proposal consistent with a particular theme for outdoor advertising in the area or locality? 1. Expert evidence town planning evidence was provided by Mr David Hoy, for the council and Mr Jeff Mead for the applicant. Mr Michael Neustein also provided urban evidence for the applicant. 2. Mr Hoy states that DCP 2013 restricts roof signs and large signs as cl 9.11 contemplates roof or sky signs only where they replace existing signs, improves the amenity of the locality and appearance of the building and streetscape. Mr Hoy considers that the proposed advertising structures would not improve the local amenity and would also not achieve the objectives in s 9 of DCP 2012 which state: 9.1.1 General Objectives The general objectives of this Section of the DCP are to ensure that signage: O1 is designed, sized and positioned in a consistent manner; O2 does not detract from significant views, vistas and sensitive streetscapes; O3 adds character to the streetscape and complements the architectural style and use of buildings; O4 minimises visual clutter or environmental degradation through proliferation; O5 minimises the potential for adverse impacts on sky glow from the illumination of signs; O6 conveys the advertiser's messages or images without causing an adverse social impact upon the community; and O7 Minimises impacts upon the safety of drivers and pedestrians. 1. Mr Hoy also states that the signage is also contrary to cl 9.11, P1(a) and (b) of DCP 2013. These state: 9.11 Roof or sky signs P1 Roof or sky signs are generally not permitted. However, Council may consider new roof or sky signage, but only where: (a) the new signs replace one or more existing roof or sky signs and improve the visual amenity of the locality; or (b) the new signs improve the finish and appearance of the building and the streetscape; 1. In response to the Visual Impact Assessment (VIA) relied upon by Mr Neustein, Mr Hoy maintains that the proposed advertising structures would present a poor urban design outcome in the context of the site. The VIA relies upon photo montages that are not legible and provide little help in understanding the visual impact of the proposed signs. He rejects the reference to the percentage of the facade occupied by rooftop signage of 4.7% in the VIA as this percentage does not give adequate regard for the tall commercial tower design. Mr Hoy states that the calculations of signage should be compared to the roof top structure and not the roof top structure and the façade of the building. He calculates that approximately 80% of the northern and southern facades of the roof-top metal clad structure would be obscured by the new signage. 2. In Mr Hoy's opinion, the architectural roof design approved under the 2007 approval provides a better resolved response to the roof of the building and a back drop to the approved Bayer roof signs. The substantial majority of the northern and southern elevations of this structure would be obscured by the proposed signage structures. Importantly, Mr Hoy notes that the void areas of the existing signage are considered to be important features of the existing signs that enable views of the roof feature of the building, through the existing signs to the roof plant structures behind. The negative space to the existing signs permits a shadow to be cast onto the roof structure provides thereby providing better legibility to the existing roof structure than the proposed signage. 3. Further, Mr Hoy considers that the design of the proposed signs would obscure an important design feature of the building; being the architectural roof feature, and this would detract from the appearance of the building due to the size of the advertising structures being greater than the existing signage, poor architectural resolution and insufficient set back from the building parapet. 4. Overall, Mr Hoy states that the existing roof signs are a reasonable response to the building design and that the increase in the total signage area is substantial. The proposed signage does not represent best practice in urban design. Large format advertising, including LED screens, may be appropriate in certain locations, but only where this is consistent with public policy and follows appropriate consultation. He states that no such policy or consultation has been undertaken which would support the proposed signage. 5. Mr Mead, on the other hand, states that the proposal meets the requirements in cl 9.11 of DCP 2013 in that the proposal will modify the existing signage to LED advertising signs within the approved height, scale and bulk of the existing signs. In his opinion, the signage does not represent a significant increase to the total signage area. Mr Mead states that Mr Hoy incorrectly arrives at his conclusion that the increase in the total signage area is substantial by excluding from signage area the parts of the background to the existing lettering and symbols. That is inconsistent with the approach to calculating "advertising display area" under SEPP 64. 6. Mr Neustein says that while the proposed panels can be seen from the vantage points and many other places, the area and dimensions of the panels are the same as the squared off edge around the existing signage which has long ago become an accepted part of the North Sydney skyline. There is no basis for the criticism of "excessive" nor is any standard cited in criticism of the proposal. In urban design terms, the panels must be large enough to allow logos to be seen from a distance (the purpose of the advertising) with sufficient clarity. Logos on the panels could be as large as the existing Bayer signage though more likely somewhat smaller where the logo is a word, for example. "Emirates" or "Blackmores". 7. Mr Neustein notes that the Bayer building is a white building, some 17 storeys high. The suggestion that the roof signs proposed will dominate the building elevations is clearly wrong and is evident as the signage, by day or night, does not dominate the building. The signs, at most, cover 4.7% of the area of the facade on which they appear. It is not rational to suggest that the signs can dominate a white building face 21 times the area of the proposed signage. 8. At night, the logos will appear on a black or other dark background leaving a large proportion of the panel invisible. During the day, the level of daylight illumination will overwhelm the luminance levels of the panels which, again, will feature the consistent black or other dark, recessive background. Using black or similar recessive backgrounds will ensure that the graphics displayed on the panels are similar to the older technology used elsewhere in the North Sydney and Sydney CBDs. 9. Mr Mead and Mr Neustein agree that the signage does not encroach beyond the edges (is not wider) than the roof structure. The total signage area is similar to that which exists and the signage display area is a fraction of the overall area of the facade on each elevation of the building. The signage is not proportionately large compared with the building face, and has a size/proportion relationship with the building similar to the existing signage. The setback of the signage from the parapet is similar to the existing signage as shown on the roof plan. The proposed signage will result in an outcome not dissimilar to the existing signage and therefore should also be accepted as a reasonable response. Character of the area – the findings 1. In considering the first criteria in Schedule 1: "Character of the area", the Court must be satisfied that firstly, the proposal is compatible with the existing or desired future character of the area or locality in which it is proposed to be located and secondly, is the proposal consistent with a particular theme for outdoor advertising in the area or locality. 2. In considering the first criterion; I accept that "compatible" has the meaning of "capable of existing together in harmony" (Project Venture Developments v Pittwater Council [2005] NSWLEC 191), the "area or locality" includes the areas adjoining and near the Bayer building, and also the wider area where the signage can be viewed and the "the existing or desired future character" is the character that currently exists or is the form of signage contemplated by the council's planning controls. 3. If these matters are taken into consideration, I am not satisfied that the proposed signage satisfies this criterion for a number of reasons. In seeking guidance from the council's planning controls on addressing "the existing or desired future character of the area or locality", I have given little weight to cl 9.16 New Technologies in DCP 2013. The provisions in cl 9.16 do not take the matter much beyond the other relevant clauses by simply advocating a flexible approach and the need for a merit assessment. In my view, these are matters that are fundamental in the assessment of any requirements under a development control plan. 4. Similarly the Draft DCP can provide no assistance. The Draft DCP provides stricter controls for digital signs than the current cl 9.6 and while the Draft DCP has been advertised it has not adopted by the council. I accept that no weight can be given to the draft DCP because of the uncertainty of the final form of the proposed amendment. There was also no evidence provided on its future progress beyond a council resolution to have the matter referred back to the council at an undetermined date. 5. In terms of relevant council planning controls to address the question of existing and future desired character, cl 9.2 of DCP 2013 provides for an advertising design analysis that aims to provide guidance on desirable forms of advertising in the North Sydney local government area for different zones and areas. The identified zones in cl 9.2 are B1 - Neighbourhood Centre Zone, B4 - Mixed Use Zone, IN2 – Light Industrial Zone and the North Sydney Centre. The site does not fall within any of the identified zones or the North Sydney Centre based on the definition in LEP 2013 and the North Sydney Centre Map. 6. Even though the site is not within the North Sydney Centre, it adjoins this area; separated by the Warringah Freeway but makes the following helpful comments in relation to illuminated roof signs and what is anticipated by the council, in terms of existing or desired future character: The visual impact of the larger illuminated roof and walls signs in the North Sydney Centre is significant given their prominent location on the shores of Sydney Harbour and their close proximity to Bradfield Highway. To enhance views from Sydney Harbour, large business identification wall signs on multi storey buildings above first floor level should be limited to two per building that are incorporated into the overall design of the building. Generally, additional signage should be limited to small scale business identification signs at ground floor level to convey messages to potential customers in preference to large scale roof and/or sky signs. 1. Further guidance on an appropriate future character is found in the provisions in cl 9.11 that state: Roof or sky signs P1 Roof or sky signs are generally not permitted. However, Council may consider new roof or sky signage, but only where: (a) the new signs replace one or more existing roof or sky signs and improve the visual amenity of the locality; or (b) the new signs improve the finish and appearance of the building and the streetscape. 1. What can be gleaned from DCP 2013 is that "roof or sky signs are generally not permitted" but may can be considered where they replace existing roof and sky signs and improve (my emphasis) the visual amenity of the locality or improve the finish and appearance of the building and the streetscape. Coincidentally, a similar requirement is found in cl 21(1)(a)(i) of SEPP 64 that consent may only be granted if "..the advertisement improves the visual amenity of the locality in which it is displayed". 2. I agree with Mr Hoy that the proposed signs do not "improve the visual amenity of the locality". I accept that the proposed signs have a larger surface area and being solid; will be more visible than the existing signs which appear as a see-through light weight structures on the roof form above the parapet of the building. While Mr Hoy and Mr Mead disagreed on the measurement of the existing and proposed signs based on the definition of "advertising display area" in SEPP 64; I am not satisfied that the approach to determine the actual size is overly relevant, in this case The relevant consideration is the physical appearance when viewed from the locality and in this regard, I am satisfied that given the two different structures and form of the signs and the different perception that each type of sign would have when viewed from the locality; the proposed signs will not "improve the visual amenity of the locality". This is clearly shown in Figures 1 and 2 (see par 2). 3. I am satisfied that it can also be reasonably argued that the proposed signage is likely to have a greater impact on the visual amenity of the locality because of the rectangular design of the advertising signs, the changing nature of the displays, the different colours and forms of displays for different advertising rather than the benign and static form of the existing signs. As Mr Neustein stated, and which it is difficult to refute; "the panels must be large enough to allow logos to be seen from a distance (the purpose of the advertising) with sufficient clarity ". I do not accept the existing signage requires the same level of attraction needed for the proposed signage and as such, could not reasonably be said to "improve the visual amenity of the locality". 4. The second criterion asks whether "the proposal is consistent with a particular theme for outdoor advertising in the area or locality". SEPP 64 does not define the word "theme" however if the word is given a meaning of having a constant approach, style, form or similar, it would be reasonable to accept that the "theme" would be similar to that anticipated by the council's planning controls. Nowhere in any of council planning controls does it suggest that illuminated advertisements are appropriate for the area or locality. Consequently, I am not satisfied that "the proposal is consistent with a particular theme for outdoor advertising in the area or locality". 5. In accordance with Sch 1 in cll 8(b), 13(1)(b), 17(3)(a) of SEPP 64 for the reasons in the preceding paragraphs, I am not satisfied that the proposed signage is acceptable in terms of its impacts because the signage is not "compatible with the existing or desired future character of the area or locality in which it is proposed to be located" and the proposal is not "consistent with a particular theme for outdoor advertising in the area or locality". As such the appeal must be dismissed and development consent refused. 6. Also, I am not satisfied that cl 21(1)(a)(i) of SEPP 64 is satisfied in that the advertisement does not "improve(s) the visual amenity of the locality in which it is displayed" and as such the DA Appeal could be refused for this reason alone. 7. For completeness I will briefly deal with the other major issues in dispute. Special areas – heritage 1. The relevant criterion is: * Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas? 1. Expert heritage evidence was provided by Mr Stephen Davies for the applicant and Ms Lucinda Varley for the council. The criterion in Schedule 1 asks whether the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas? "Heritage areas" being the relevant area in this case. 2. The experts agree that signage is satisfactory in principle, in their joint report (Exhibit 6, par 9). Ms Varley contends however, that the visual impact of the signage could be reduced by limiting the background and/or colour range and providing a pale frame to the signage against the skyline. Mr Davies accepts this suggestion. 3. Notwithstanding her acceptance that the sign is satisfactory in principle, Ms Varley raises a number of concerns that relate to the visibility of the signs, particularly the full colour presentation. She states that the signage will be more visually dominant than the existing signage and will intrude further into the setting and backdrop of the sensitive streetscapes of the conservation area. Also, the Bayer building is tall and visually intrusive and any new visually intrusive signage will exacerbate and intensify the perceived difference in scale between the Bayer building and the dwellings in the conservation area. 4. Mr Davies responds by stating that the proposed signage will not be more dominant than the current signage. When viewed from below, in the conservation area, the sign itself will appear black at night as the view shed provides for it not to be visible and then it is turned off after 11 pm. From a heritage perspective, the proposal is considered of neutral impact on the quality of the streetscape and on the views from the conservation area. This is the result of the signage being situated 17 stories above the street level. Further, the height of the Bayer building mitigates the visual impact of the signage both for day and night and therefore is considered supportable from a heritage perspective. 5. On this criterion, and with the benefit of a site inspection, I accept the conclusions of Mr Davies. Accordingly, I am satisfied that the proposal satisfies the above criteria. Views and vistas 1. The relevant criteria are: * Does the proposal obscure or compromise important views? * Does the proposal dominate the skyline and reduce the quality of vistas? * Does the proposal respect the viewing rights of other advertisers? 1. On these criteria, and contrary to the evidence of Mr Hoy but with the benefit of a site inspection that extended beyond the areas around the site, I accept that the proposal satisfies the above criteria. Streetscape, setting or landscape 1. The relevant criteria are: * 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? 1. The question of whether the scale, proportion and form of the proposal is appropriate for the streetscape, setting or landscape raises three separate questions. If streetscape is taken to be the streets immediately around the building, I am satisfied that the scale, proportion and form of the proposal is appropriate. However as the ability to be able to view the proposed signage increases with the distance from the proposed signage, the setting becomes more visible to a greater number of people which raises the concerns raised under the heading of character. These impacts are unacceptable for the reasons set out in pars 54 to 66. 2. I am also satisfied that the proposed signage, through the change from that previously approved in DA 59/07 and DA 163/16 to that proposed in this application could not be said to "contribute to the visual interest of the streetscape, setting or landscape" or "reduce clutter by rationalising and simplifying existing advertising". 3. In accordance with in Schedule 1 of cll 8(b), 13(1)(b), 17(3)(a) of SEPP 64, I am not satisfied that the proposed signage is acceptable in terms of its impacts because the signage is not of a "scale, proportion and form … appropriate for the streetscape, setting or landscape", does not "contribute to the visual interest of the streetscape, setting or landscape" and does not "reduce clutter by rationalising and simplifying existing advertising". The DA Appeal could be refused for this reason alone. 4. Also, I am not satisfied that cl 21(1)(a)(i) of SEPP 64 is satisfied in that the advertisement does not "improve(s) the visual amenity of the locality in which it is displayed" and as such the DA Appeal could be refused for this reason alone. Illumination. 1. The relevant criteria are: * 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? 1. The Court was provided with a number of documents relating to illumination. These were: * Lighting Impact Assessment – Proposed LED Advertising Signage at 275 Alfred Street, North Sydney; 3 March 2017 (Exhibit D), * Lighting Impact assessment – Proposed LED Advertising Signage at 275 Alfred Street, North Sydney; 5 July 2017 (Exhibit K), * Light Measurement Report, Mr R Shamier (Exhibit G), and * Joint Light Expert Report, Mr R Shamier and Mr B Martin (Exhibit 4). 1. Mr Shamier and Mr Martin, in their joint report, recommended conditions of consent that would address the contentions raised by council. These conditions were based on the approach that the proposed signage on each façade has the same total light as the existing signage (within 10%). Consequently, there will be no reduction in the amenity to residences or motorists as a result of the proposed signage. To achieve this result, Mr Shamier and Mr Martin calculate that the proposed signage will need to be reduced to 24.7% for the northern sign, 26.9% for the southern sign and 29.6% for the western sign. The propose signage illumination will also have the ability to be adjusted and will be subject to a curfew. 2. On the basis of this evidence Mr Hoy accepted that there would be no additional amenity impacts on nearby residents however he maintained that the proposed signage would still be unacceptable when viewed from more distant locations. 3. Based on the expert evidence, I accept that the proposal satisfies the above criteria. Is there a development control plan in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct, (cl 19(2)(a), cl 21(1)(c) of SEPP 64) 1. Clause 19(2)(a) requires that consent not be granted "unless": - (a) a development control plan is in force that has been prepared on the basis of an advertising design analysis for the development area or precinct 1. Clause cl 21(1)(c) requires that consent may be granted "only if": (c) a development control plan is in force that has been prepared on the basis of an advertising design analysis for the development area or precinct the display of the advertisement is consistent with the development control plan; 1. The expression "North Sydney Centre" is not defined in DCP 2013, however, s 1.7.4 of Part A of DCP 2013 provides that definitions contained in the Dictionary to LEP 2013 are adopted for the purposes of DCP 2013. "North Sydney Centre" is defined in the Dictionary to the LEP to mean the land identified on a map that forms part of LEP 2013. That map delineates an area, the boundaries of which differ from the Central Business District identified on the maps in Section 2 of Part C of DCP 2013. Relevantly, the area identified as the "North Sydney Centre" on the LEP 2013 map does not extend to the east across the Warringah Freeway to include the B3 Commercial Core zoned land of the site. 2. The council argues that no advertising design analysis for the area or precinct in which the site is located is addressed in DCP 2013. The consequence being that the provisions of cll 19(2)(a) and 21(1)(c) of SEPP 64 operate to deny power to the Court to grant the development consent for the DA Appeal. 3. Mr Hemmings argues that there are several contextual indicators in DCP 2013 that speak against the North Sydney Centre being assigned its defined meaning. First, the text describing the North Sydney Centre in the opening paragraph of s 9.2.4 is not consistent with the boundaries of the North Sydney Centre delineated on the North Sydney Centre Map in LEP 2013. The North Sydney Centre Map neither includes within its boundaries the McLaren Street or the Walker Street conservation areas nor does it include St Thomas Church or the Council Chambers. Mr Hemmings submits there is an obvious disconnect between the text in s 9.2.4 and the North Sydney Centre Map. 4. Second, the opening sentence of s 9.2.4 states: North Sydney Centre is a vibrant, prosperous commercial centre consisting mainly of multi storey commercial buildings. 1. Mr Hemmings submits that the zone under LEP 2013 best matching the description of the "commercial centre" is zoned B3 Commercial Core zone and which includes the site. Moreover, the building erected upon the land itself meets the description of a multi storey commercial building within the B3 zone. 2. Third, it has been identified that there is at least one example of a reference to the "Centre" that, contextually, could not be a reference to the area delineated on the North Sydney Centre Map. That example is found in Part C of DCP 2013. The reference to the "Centre" in par P4 of s 2.1.2, can only be a reference to the Central Business District as delineated on the DCP Map, which includes all of the land zoned B3 at North Sydney. 3. Fourth, the provisions of Part C of DCP 2013 are expressed to prevail to the extent of inconsistency between Part C and the provisions of Part B. As if to emphasise the position, so much is stated in s 1.7.3 of Part A and repeated in s 1.1.2 of Part C. Mr Hemmings submits that it makes no sense that the provisions of Part C should address the likely future character of the Central Business District (that area including all B3 zoned land) yet s 9.2.4 of Part B, addressing the North Sydney Centre should be read as excluding land that is otherwise recognised in DCP 2013 as including all the B3 zoned land in North Sydney. 4. In accepting that the matters raised by Mr Hemmings are factually correct, I am not satisfied that the four matters provide a sufficient reason for disturbing the clear definition of the North Sydney Centre as shown on the North Sydney Centre Map. Mr Lancaster's submission highlights the approach to be undertaken in to the construction of subordinate legislation; such as DCP 2013. He refers the Court to Gill v Donald Humberstom & Co Ltd [1963] 3 All ER 180 at 183, where Lord Reid said the following in respect of the approach to be taken to the construction of subordinate legislation (and adopted as applicable to the interpretation of DCPs in GTAA Pty Lid v South Sydney City Council [2001] NSWLEC 213; (2001) 117 LGERA 51): They are addressed to practical people skilled in the particular trade or industry, They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament. 1. Mr Lancaster provided submissions to refute the submissions of Mr Hemmings, and which I accept but in any event, I have little trouble in concluding that the matters raised by Mr Hemmings fall squarely within "minor inconsistencies, overlapping and gaps" or similar referred to in Gill. 2. Consequently, I am not satisfied that an advertising design analysis for the area or precinct in which the site is located has been prepared so the provisions of cll 19(2)(a) and 21(1)(c) of SEPP 64 operate to deny the Court to grant the ability to grant consent to the DA Appeal. The DA Appeal could be refused for this reason alone. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application 40/17 for removal of rooftop Bayer signage and install three dynamic/changeable LED advertising panels at 275 Alfred Street North Sydney is refused. 3. The exhibits are returned with the exception of exhibits 3, and N. The Modification Appeal Is the proposed signage substantially the same as that originally approved? The legislative framework 1. Section 4.55(2)(a) states: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and 1. Section 4.55(2)(a) is a condition precedent to the exercise of the power to modify a development consent. A failure to satisfy the condition precedent must see the Modification Application refused. Legal principles 1. Mr Lancaster helpfully provides the relevant legal principles in his written submissions for determining the question of whether the proposed signage is substantially the same as that originally approved. He notes that these principles are well established and are set out by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSWLEC 75 at [173]. These principles are: 1. the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); 2. the modification power is beneficial and facultative (Michael Standley at 440); 3.the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); 4. the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); 5. the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); 6. the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]) 7. the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); 8. in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); 9. the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and 10. a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]). The evidence 1. Mr Hoy states that the proposed signage cannot be considered to be substantially the same compared to the nature of the existing roof signs for the following reasons: * the proposes advertising structures would introduce advertisements where none are currently displayed; * the proposed structures are of a height, form and design that is dramatically different to the form of the existing fabricated signs; * the increase in display area represents a significant increase in signage for the building; * the resulting structures would dominate the profile of the roof top feature of the building and would reduce the architectural quality of the building by obscuring this feature during the day and through Illumination or a black screen at night, whereas the existing signs protrude from the existing roof top structure and enables views of the structure through the existing signage and provides relief and articulation at the top of the building; * the proposed signs would increase the visual impact of signage at night due to illumination and would interrupt views of the site and important views from the public domain and private residential properties; * the proposed changeable nature of the content Is vastly different to the existing static signs; * the impact of illumination on residential amenity in the vicinity of the would be substantial and adverse; * the cumulative impact of additional advertising on the building would erode the architectural quality of the building and would result In a proliferation of advertising at the site; * the proposed advertising structures represent a significant increase in signage display area in comparison to the existing and would result in a substantially different form of signage at the site and a greater impact on adjoining land; * the design of the proposed LED screens would introduce a substantially greater display area on each elevation of the building; and * the proposed advertising structures would be essentially and materially different from the existing approved signage. 1. Mr Mead states that he considers that the proposed signage is substantially the same compared to the nature of the existing roof signs for the following reasons: * the architectural appearance or quality of this very large building will not radically transform, particularly because the area of each facade that is occupied by the actual signage is a very minor percentage of the overall facade; * the proposed signage areas are within the same location as the the 2007 approval; * the proposed signage will operate during the same hours of use as approved under the 2007 approval; * the proposed signage is consistent with the 2007 approval in that it provides static images and does not contain features that would distract viewers such as moving elements, flashing or rolling elements. For example, changes to the signage content can occur during the "turn off" period at the end of the day; * the lighting, or luminosity, will be no brighter than exists (based on the evidence of the applicant's lighting expert); * the existing sign uses LED lighting as will the proposal; and * the height of the proposed signage breaches the height limit as did the existing signage when approved but to no material greater extent. 1. In dealing with the two primary differences, being the medium for display and ability to interchange the content of the sign, these aspects do not radically transform or materially change the existing signage because the existing signage comprises lettering and images affixed (combined to form a sign) to the building by structural support. The proposal affixes a box sign to the same structural supports in the same location; 2. Mr Mead further states that the existing signage cannot be construed as the lettering or symbols alone. The lettering and symbols sits against a background in order to be seen clearly. This is no different to any sign board or even shop front advertising where lettering or images sits against a background. This approach is consistent with the definition of "advertising display area" in SEPP 64. The background is the structure for plant associated with the building. The proposal provides a background for the same purpose ie. for the signage to be properly seen. That background will be provided on the LED panel. The visible signage against background will not be materially different from the existing signage. 3. In terms of the proposed sign being interchangeable, other than the casual observer having knowledge of the different display during different weeks by recollection, this would not be apparent when the sign is viewed. That is because the images will change when the sign is off, overnight. Changes in content will never be seen. Therefore, the content of the sign is effectively static even if the medium is described as interchangeable because of its ability to do so. 4. In Mr Mead's opinion, if the conditions relating to lettering size and background are adopted, the extent of words and size of images on the sign will be limited and the appearance of the sign at any given time would not be vastly different to that which exists or other signage in the visual catchment. Findings 1. On this matter, I agree with the conclusion of Mr Hoy and the submissions of Mr Lancaster that the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. 2. The parties disagreed on how the sign should be considered. Mr Hemmings submits that the 2016 consent expressly incorporated the 2007 consent and this consent included the installation of signage and its use. It set out the form that the signs would take. In addition to incorporating the 2007 consent, the 2016 consent also expressly included the form that the roof or sky advertisement would take. 3. To the extent that the council would suggest that the 2016 consent as originally granted was for a building identification sign the Court would not accept that proposition because the applicant lodged an application to modify the first 2016 consent to rectify a minor error or misdescription, namely the misdescription of what the 2016 consent approved. 4. Mr Hemmings submits that the Modification Appeal involves modifying the form of the signage (something that the 2016 consent expressly sought to control); and continuing the use that was, and is, authorised by the 2016 consent, namely that of a roof or sky sign. In these circumstances, the proposal in the Modification Appeal is substantially the same as the 2016 consent. 5. This is not an approach accepted by Mr Lancaster. He submits that DA 59/07 was properly characterised as a "building identification sign" and that the development the subject of DA 163/16 was properly characterised as the continued use of the building identification signage the subject of DA 59/07. The use of those descriptions does not alter the proper characterisation of the signage, which is a question of the application of the legal meaning of the defined terms in SEPP64 (and is itself a jurisdictional fact: at Woolworths Ltd v Pallas Newco Ply Ltd [2004] NSWCA 422; 61 NSWLR 707 at [88]). 6. The development the subject of DA 59/07, which DA 163 / 16 permitted the continued use of, is properly characterised as building identification signage. The development the subject of the proposal in the Modification Appeal is different and is properly characterised as an "advertisement". 7. Mr Lancaster does not submit that a difference in characterisation between the original and proposed altered use leads inexorably to the conclusion that the developments are not substantially the same .However, it is highly relevant, and effectively determinative, in this particular case as the different characterisation exposes the proposed altered use to a different, and more onerous regime under the relevant environmental planning instruments than would be the case if the proposal continued to be properly characterised as a building identification sign. That is, the different uses are not substantially the same because, among other things, they are so differently regulated by environmental planning instruments. 8. I agree with the submissions of Mr Lancaster that DA 59/07, which DA 163/16 permitted the continued use of, is properly characterised as building identification signage. The development the subject of the proposal is different and is properly characterised as an "advertisement". I also agree that although there may be two different characterisations of the existing signs and the proposed signs; this does not by itself allow the question posed by s 4.55(2)(a) to be answered either way, but I accept that it is more supportive of the council's position on this matter. 9. What is determinative is the different characteristics of the existing signs and the proposed signs. Qualitatively and quantitively, there are material differences and include some, but not all suggested by Mr Hoy. In my view, the proposed signs are "substantially" different because the proposed signs: * have a larger advertising area (notwithstanding the method of measurement in SEPP 64); * have a different purpose in seeking to attract attention every week rather than the continuation of the static building identification sign; * introduce a different form of signage, (advertisements rather than a building identification sign); * introduce changing signage rather than static signage; * introduce multiple colours associated with different advertisements; and * require demolition of the existing signs. 1. For the above reasons, I am not satisfied the development the subject of the proposal in the Modification Appeal is substantially the same as the development the subject of DA 163 / 16, or the development the subject of DA 59/07, which DA 163 / 16 permitted the continued use of the signage. Consequently, the Modification Appeal must be dismissed and the application refused. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. The modification application that seeks approval to amend the existing approved signage to the rooftop of the Bayer building to dynamic/changeable LED advertising panels at 275 Alfred Street North Sydney is refused. 3. The exhibits are returned with the exception of exhibits 3, and N. ______________ G 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: 15 June 2018