OOh!Media Fly Pty Ltd v Bayside Council [2019] NSWLEC 1149

Land and Environment Court New South Wales

Medium Neutral Citation: OOh!Media Fly Pty Ltd v Bayside Council [2019] NSWLEC 1149 Hearing dates: Conciliation conference on 29 March 2019 Date of orders: 29 March 2019 Decision date: 29 March 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [16] - [18] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Botany Bay Local Environment Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 64 – Advertising and Signage Texts Cited: Botany Bay Development Control Plan 2013 Transport Corridor Outdoor Advertising and Signage Guideline, November 2017 Category: Principal judgment Parties: OOh!Media Fly Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Solicitors: G McKee, McKees Legal Solutions (Applicant) P Brown, HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/99461; 2018/99493; 2018/99513 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a deemed refusal by Bayside Council (hereafter the Council) of Development Applications (DA) 2017/1140, 2017/1142, 2017/1142, which together seek digital upgrade of existing bookend advertising signage, in addition to minor landscaping and public art installation on Lot 52 DP 1097377 and Lot 53, DP 747022, also known as 40-54 Baxter Street, Mascot (the site). By request of the parties, and by order of the Registrar, the (three) appeals for these DA's have been run concurrently. 2. With regards to the three DA's under appeal, the following changes to the illuminated signage are sought: * DA 2017/1140, under appeal 18/99461, seeks to replace an existing externally illuminated advertising display panel of 10.24 m x 38.77 m with an integrated digital LED screen of the same dimensions that is mounted on the existing structural steel support and will operate 24 hours, 7 days a week, * DA 2017/1141, under appeal 18/99493, seeks to replace an existing externally illuminated advertising display panel of 10.24 m x 6.58 m with an integrated digital LED screen of the same dimensions that is mounted on the existing structural steel support and will operate 24 hours, 7 days a week, and * DA 2017/1142, under appeal 18/99513, seeks to replace an existing externally illuminated advertising display panel of 5.12 m x 17.92 m with an integrated digital LED screen of the same dimensions that is mounted on the existing structural steel support and will operate 24 hours, 7 days a week. 1. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 29 March 2019. I presided over the conciliation conference. There were no objections heard at this conciliation. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal for all three DA's and grant consent with conditions. 4. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA's 2017/1140, 2017/1141 and 2017/1142 under appeal with conditions. 5. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy No 64–Advertising and Signage (SEPP 64) together with Transport Corridor Outdoor Advertising and Signage Guideline, November 2017 (TCOA&S); Botany Bay Local Environment Plan 2013 (BBLEP 2013); and Botany Bay Development Control Plan 2013 (BBDCP 2013). 6. With regards to the BBLEP 2013, the parties have agreed that the proposed development does not contravene any development standards and therefore satisfies the requirements of the BBLEP 2013. 7. The site is located within a B5 Business Development zone and forms part of transport corridor lands. The proposed replacement of existing signage in this location is permissible in the zone and is not inconsistent with the zone objectives, pursuant to cl 2.3 of the BBLEP 2013. 8. The parties agree that based on the plans and supporting documentation that relate to the three DA's, there is no inconsistency with the requirements of SEPP 64. Specifically, in resolution of the contentions and which satisfy jurisdictional requirements, the following is assessed by the parties: 1. The Visual Impact Assessment Report and Statement of Environmental Effects together with expert reports satisfies the requirements of cll 3(1), 8, 13(1), 17, 18, 19 and 23, which resolve the contentions that relate to permissibility, light spill and clutter. 2. The Voluntary Planning Agreement (VPA) entered into by the parties, dated 20 March 2019, satisfies the requirements of cl 13(3) and resolves the contention that relates to public benefit. 1. As the site and works are located on a classified road, the Roads and Maritime Services (RMS) have provided concurrence with conditions in a letter dated 20 March 2019. These conditions have been incorporated in full into the conditions of consent for the three DA's. Therefore, the contention as it relates to traffic is resolved. 2. Based on the plans and supporting documents, which satisfy the requirements of the TCOA&S and cl 19(a) of the SEPP 64, there is no inconsistency with the BBDCP 2013. 3. The contention that relates to precedence is resolved as: the signs are existing and of the same dimensions; remain in the same location; and all the other contentions are resolved. 4. I am satisfied that there are no jurisdictional impediments to the agreements for all three appeals, and that the three DA's, based on the plans with supporting documents, including the VPA are provided for in the conditions of consent, which satisfies the requirements of s 4.15(1) of the EPA Act 1979. 5. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act 1979 to dispose of the proceedings in accordance with the parties' decision. 6. For Appeal No. 2018/99461, the Court orders: 1. The appeal is upheld. 2. Development Application No. DA 2017/1140 for the replacement of the existing externally illuminated general advertising panel of 10.24m x 38.77m mounted in an existing advertising support structural steel framework with an integrated digital LED screen within the existing structure at 40 – 54 Baxter Road is approved subject to the conditions in Annexure 'A'. 1. For Appeal No. 2018/99493, the Court orders: 1. The appeal is upheld. 2. Development Application No. DA 2017/1141 for the replacement of the existing externally illuminated general advertising panel of 10.24m x 6.58m mounted in an existing advertising support structural steel framework with an integrated digital LED screen within the existing structure at 40 – 54 Baxter Road is approved subject to the conditions in Annexure 'A'. 1. For Appeal No. 2018/99513, the Court orders: 1. The appeal is upheld. 2. Development Application No. DA 2017/1142 for the replacement of two existing externally illuminated general advertising panels of 5.12m x 17.92m mounted in an existing advertising support structural steel framework with an integrated digital LED screen within the existing structure at 40 – 54 Baxter is approved subject to the conditions in Annexure 'A'. ………………………. Sarah Bish Commissioner of the Court Appeal No. 2018/99461 Annexure A Appeal No. 2018/99493 Annexure A Appeal No. 2018/99513 Annexure A