Land and Environment Court New South Wales Medium Neutral Citation: Cittrus Pty Ltd v Inner West Council [2019] NSWLEC 1558 Hearing dates: 22 October 2019 Date of orders: 15 November 2019 Decision date: 15 November 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development Application No. 2018/00033 is granted subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPLICATION – roof signage – Parramatta Road transport corridor – desired future character – State Environmental Planning Policy No 64 – Advertising and Signage – height standard Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy No 64 – Advertising and Signage Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94 Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446 Texts Cited: Marrickville Development Control Plan 2011 NSW Department of Planning and Environment, 'Transport Corridor Outdoor Advertising and Signage Guidelines' (November 2017) UrbanGrowth NSW, 'Parramatta Road Corridor Urban Transformation Planning and Design Guidelines' (November 2016) UrbanGrowth NSW, 'Parramatta Road Corridor Urban Transformation Strategy' (November 2016) Category: Principal judgment Parties: Cittrus Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: S Nash (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2018/328621 Publication restriction: No Judgment 1. These proceedings concern the replacement of roof signage on a commercial building located on the southern side of Parramatta Road at its intersection with West Street, Lewisham ("site"). 2. The Applicant's building (depicted below) contains two 'older style' static roof signs facing Parramatta Road and a third roof sign facing West Street. The proposal 1. The proposal is to demolish the existing roof signage and replace the two signs facing Parramatta Road with two illuminated digital roof signs ("the development"). The roof sign facing West Street will be demolished and removed. 2. The new signage is approximately 1m lower than the existing signage. It protrudes above the parapet of the existing building and has a maximum height of 9.8m. 3. The surface area of the proposed two signs is 28m2, whereas the existing signage collectively has a surface area of 31m2. 4. All cables and associated plant for the new signage will be integrated into the structures in an effort to reduce visual clutter. The digital screens will display static electronic images successively at set intervals of at least 10 seconds. The content will include third party advertising, with the opportunity for advertising by public authorities such as the Inner West Council. The signage will not contain or imply motion such as scrolling, fading, dissolving or animation. 5. The digital signage will be illuminated using LEDs installed within the front face. 6. The signage is subject to a maximum time limit of ten years in accordance with cl 21(2)(a) of State Environmental Planning Policy No 64 – Advertising and Signage ("SEPP 64") from the date of the grant of development consent (Exhibit 3, Condition 5). The parties' respective positions 1. Despite the RMS' approval of the development on traffic/driver safety grounds, the Council determined on 11 September 2018 to refuse the DA. 2. In summary, the Council contends that the development, in its amended form (Exhibit C), is in breach of the development height standard in cl 21(1)(b) and contrary to the aims and objectives in cl 3(1)(a) of SEPP 64. It also contends that the development is unacceptable, having regard to the assessment criteria in Schedule 1 to SEPP 64; particularly in relation to the criterion of character of the area; streetscape, setting or landscape; and site and building; and the objectives and controls in Part 2.12 of the Marrickville Development Control Plan 2011 ("MDCP"). 3. The Council also contends that the development does not protect or enhance the character of the streetscape and is thereby contrary to the desired future character of the Parramatta Road Precinct ("Precinct 35") under Part 9.35 of the MDCP. 4. The Applicant contends that the development satisfies the provisions of SEPP 64 including the Schedule 1 criteria and is consistent with the existing visual character of Parramatta Road (which is defined by large format advertising signage and predominately commercial development) and compatible with the desired future character as understood under the Council's LEP, DCP and UrbanGrowth NSW's Parramatta Road Corridor Urban Transformation Strategy and Parramatta Road Corridor Urban Transformation Planning and Design Guidelines (including the Taverners Hill Guidelines) ("the Guidelines"). And, with respect to the breach of the height standard in cl 21(1)(b) of SEPP 64, the Applicant relies upon the cl 4.6 written request prepared by its planners, URBIS, to overcome the non-compliance with the standard in this case. Decision 1. It is important to note that in order to engage jurisdiction, I have determined to uphold the Applicant's written request made pursuant to cl 4.6 of the Marrickville Local Environmental Plan 2011 ("MLEP") to vary the height standard in cl 21(1)(b) of SEPP 64 in this case. 2. For the reasons that follow, I have decided to grant consent to the development subject to the agreed conditions (Exhibit 3). Background 1. The background facts and planning controls and contentions arising from the amended application are as stated in the Amended Statement of Facts and Contentions filed on 18 September 2019. The essential matters are as follows: Planning framework Marrickville Local Environmental Plan 2011 1. The site is within the B6 Enterprise Corridor zone under the MLEP and the proposed signage is permitted with consent. 2. The site is not considered a heritage conservation item and it is accepted that the development will not impact the heritage items and conservation areas located to the south of the site. 3. There is no building height control applicable under the MLEP (however, there is a height limit for signage which impacts upon this application under cl 21(1)(b) of SEPP 64 and I will address this shortly). 4. Relevantly, the MLEP requires me to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 5. The objectives of the B6 zone are: • To promote business along main roads and to encourage a mix of compatible uses. • To provide a range of employment uses (including business, office, retail and light industrial uses). • To maintain the economic strength of centres by limiting retail activity. • To provide a residential uses, but only as part of a mixed development. • To enable a purpose-built dwelling house to be used in certain circumstances is a dwelling house. State Environmental Planning Policy No 64 – Advertising and Signage 1. Because this development is for signage that can be displayed with consent, SEPP 64 prevails over other environmental planning instruments to the extent of any inconsistency. 2. 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. 1. The aims in cl 3(1) of SEPP 64 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 (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. (Noting that the aims/objectives stated in cl 3(1)(b), (c), (d) and (e) are not at issue between the parties and I accept are complied with by this development subject to the imposition of the agreed conditions of consent). 2. The assessment criteria in Schedule 1 to SEPP 64 relevant to this application, as identified by the Council during the hearing, 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 settings? … • Does the proposal reduce clutter by rationalising and simplifying existing advertising? 5 Site and building • Is the proposal compatible with the scale, proportion and other characteristic of the site and building? … 1. Clause 18 of SEPP 64 requires the concurrence of the RMS to the display of an advertisement with a display area greater than 20m2 and within 250m of a classified road. Both apply to the present application and the RMS has provided its concurrence to the development by letter dated 11 September 2018 and the conditions proposed by the RMS have been incorporated in the agreed conditions of consent. 2. Clause 21 of SEPP 64 applies to "roof or sky advertisements", which are defined to mean advertisements "displayed on, or erected on or above, the parapet or eaves of a building", and provides: (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. (Emphasis added) 1. In this instance, the signage is above the parapet of the building and thereby in breach of the height standard in cl 21 of SEPP 64. To overcome this breach, the Applicant has lodged a cl 4.6 written request prepared by URBIS dated 17 October 2017 seeking consent to vary the standard (Exhibit D). I will deal with that jurisdictional issue shortly. Marrickville Development Control Plan 2011 1. Also relevant in my assessment is the MDCP which contains generic provisions in relation to advertising structures in Part 2 and controls in respect of signage in commercial areas. While s 4.15 of the Environmental Planning and Assessment Act 1979 ("EPA Act") requires that I consider the MDCP, it is also called up by cl 21(1)(c) of SEPP 64. This provision requires that I am satisfied that "… the display of the advertisement is consistent with the development control plan". 2. In that regard, I note that Control 18 in Part 2.12.4.2 of the MDCP deals with the total permissible advertising area – (the area of the signage). Under the MDCP, the allowable signage area is related to the width of the frontage to a public road. In this case, the Applicant submits that the site has a frontage to two public roads, being Parramatta Road and West Street. On that basis, it calculates that the accumulated area of the proposed signage exceeds the allowable area under Control 18 by 1.1m2 or 4.06%. Whereas the Council argues the primary frontage is Parramatta Road and that the signage exceeds the allowable area by a greater amount. 3. While the Council acknowledges that the MDCP allows flexibility in the application of development controls where strict compliance is unreasonable or unnecessary under the provision in Part 1.1.3 entitled "Variation to development controls", it submits that this opportunity is dependent upon the objectives being achieved and this application fails that test. 4. The relevant objectives are contained in Part 2.12.1 of the MDCP. At the hearing, the Council identified objectives 01, 02, 03 and 08 as being of particular relevance. They provide: "… 01 - To ensure all advertising achieves a high level of design quality and is compatible with the architectural design of the host building, the character of streetscape and the size and juxtaposition of other signage the immediate vicinity. 02 to ensure signage does not dominate or detract from the architectural features of the building and from the white way lighting found long some retail strips. 03 to ensure advertising does not cause amenity loss, or have a detrimental effect on the natural or built environment or the safety, appearance or efficiency of any public area. … 08 to ensure advertising do not result in visual clutter or other visual impacts on a locality. " Evidence 1. As there are no objectors to this application and I inspected the site and its environs at the earlier s34 conference, the parties agreed that my observations taken at that time could be relied upon at the hearing. Therefore, they requested that the appeal commence in the Court house at Sydney without the need for further view. 2. In Court, Mr Simon Wilkes, the Applicant's consultant and Mr Andrew Newman, the Council's senior planner, gave concurrent expert oral evidence in addition to their written evidence in the joint report (Exhibit 2). Clause 4.6 of MLEP 1. As identified at the outset of my judgment, the Court's approval of the Applicant's cl 4.6 written request for a variation to the development standard for height in cl 21(1)(b) of SEPP 64 is necessary in order to engage jurisdiction to entertain this appeal. 2. The text of the clause is an obvious starting point. So far as is relevant, it provides: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. 1. As discussed in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action") at [90] per Preston CJ of the LEC, cl 4.6 does not give substantive effect to the objectives set out in the clause in cl 4.6(1)(a) and (b). That is, there is no provision in cl 4.6 that requires compliance with the objectives of that clause. Neither cl 4.6(3) or (4) expressly nor impliedly requires the development that contravenes a development standard "to achieve better outcomes for and from the development". 2. Instead, subcl (3) sets out the provisions or requirements for the written request. Noting that (a) and (b) are discrete matters. Subclause (4) precludes the grant of consent unless the consent authority is satisfied of the matters in (a)(i) and (a)(ii). Sub (5) deals with the concurrence of the Secretary. 3. When framing the written request, it is important that the requirements of the clause are recognised and adequately addressed. Fundamental to compliance is the preparation of a written request that "seeks to justify" the contravention of the standard by "demonstrating" by a reasoned argument why paragraphs (a) and (b) of subcl (3) are met. Provided that the process of reasoning is adequate, subcl (4)(a)(i) is capable of being satisfied. 4. The particular requirements which need to be addressed pursuant to the clause were identified in Randwick City Council v Micaul Holdings Pty Ltd (2016) 225 LGERA 94 ("Micaul") per Preston J at [11]. They are: 1. That compliance with the relevant development standard must be unreasonable or unnecessary in the circumstances of the case; 2. That there are sufficient environmental planning grounds to justify contravening the development standard; 3. That the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3); 4. That the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the relevant zone. 1. In Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245; (2018) 365 ALR 86; ("Al Maha") at [23] per Basten JA (confirmed in Baron Corporation Pty Ltd v Council of the City of Sydney [2019] NSWLEC 61 by Preston CJ at [74]-[81] as discussed in Al Maha), in considering the written request as required by cl 4.6(4)(a)(i), the consent authority (or the Court on appeal) must be satisfied as a matter of fact that the request has adequately addressed the matters required to be demonstrated by cl 4.6(3). This may involve the consent authority or the Court on appeal forming its own view about the matters in cl 4.6(3) as referenced in the written request in order, first, to consider the request under cl 4.6(3), and secondly, to determine whether it is satisfied under cl 4.6(4)(a)(i) that the request has adequately addressed the matters required to be demonstrated by cl 4.6(3). It now seems that the (obiter), comments of Basten JA (confirmed by Preston CJ in Baron at [74]-[81] and discussed in Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 ("Rebel") at [41]-[50]) reflect the required approach. 2. Put simply, to be "adequately addressed", the matters raised in the written request must, in fact, justify the non-conformity: Rebel at [48] – this is the outcome required by cl 4.6(3) and subcl (4)(a)(i) and it is not sufficient for the written request merely to seek to demonstrate the matters in subcl (3). 3. As the Court observed in Initial Action at [23], that while the adjectival phrase "environmental planning grounds" is not defined, it has been held to refer to the grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3. Additionally, where the benefits of the development are advanced in the written request as "environmental planning grounds", it is now clear that they must discretely relate to the contravention of the standard in order to be sufficient and, not simply promote the benefits of the development as a whole: Baron at [115]; Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 at [60]; Initial Action at [24]. 4. In this case, the written request identifies that there are no roof structures on the site, other than the existing signage, which are to be demolished. Consequently, the effect of cl 21(1)(b) of SEPP 64 is to restrict the height of the proposed new signage to the height of the parapet of the building. 5. In acknowledging that there are no stated objectives to cl 21(1)(b), the written request after referring to the aims of SEPP 64 in cl 3 (reproduced earlier at [23]) identifies the following as underlying objectives of cl 21(1)(b): 1. to ensure that the finish and appearance of the signage has a relationship to the associated building design and streetscape; 2. to ensure that signage does not dominate the streetscape nor skyline. Subclause 4.6(3)(a) 1. I am satisfied, notwithstanding the contravention of the standard, that the written request demonstrates, consistent with the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446 that compliance with the standard in cl 21(1)(b) is unreasonable or unnecessary in the circumstances because the development will achieve the underlying objectives of the clause irrespective of the breach for the following reasons. 2. First, the written request establishes that roof signage above the parapet is not prohibited and envisaged in the streetscape because the definition of "roof and sky advertisement" in cl 4 of SEPP 64 provides for it. The definition reads: roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building 1. Furthermore, the written request establishes that the contravention arises because of the height of the signage above the parapet which becomes a restriction only because the building contains no other structure on the roof such as plant, flag poles, aerials or masts. 2. Next, the written request establishes that roof signs are already part of the established presentation of the associated building and the relevant streetscape along Parramatta Road. It describes the proposed signage as located on an old existing commercial building in a mixed-use area characterised by industrial and commercial uses with a diversity of built form. This description of the building and the signage in the streetscape accords with my observations of the environment around the site, including the Parramatta Road frontage. For example, there is a large non-digital rooftop sign near the Caltex service station past the site and digital/illuminated signage on the face of the footbridge extending out Parramatta Road. 3. Having established what environment the signage must relate to in order to achieve the underlying objectives, the written request then describes the "finish and appearance of the signage" as having a maximum height of 9.8m (lower than the existing roof signage); styling and content in a simplified form with clearly defined visual statics and unambiguous and concise content. This new signage will offer a consistent roofline on the dominate Parramatta streetscape. 4. The written request then establishes the proposal simply replaces the existing roof signage on the same frontage to Parramatta Road in a similar scale (at a lower height) and in proportion to the existing building with signage. The finish and appearance of the signage will have a relationship to the associated building design and streetscape. The written request also demonstrates that the proposal will not change any important features of the building or existing streetscape and thereby will not dominate the streetscape or skyline. Subclause 4.6(3)(b) 1. Next, I am satisfied that the written request adequately demonstrates sufficient environmental planning grounds to justify the contravention of the development standard for the following reasons. In that regard, the written request demonstrates that when the contravention is considered in the context of the existing buildings and other signage along the Parramatta Road transport corridor, it will achieve a positive contribution to visual amenity, by virtue of overall quality and simple form, in addition to adding visual interest by replacing an existing out-dated bulky signage format. Consistent with my observations of the topography of the area, the written request acknowledges that the site is located at a natural low point along Parramatta Road; and for that reason, the written request demonstrates that the contravention of the standard (signage above the parapet of the building) does not dominate the skyline. Additionally, the written request demonstrates that the signage does not extend beyond the width of the building and is therefore an appropriate form and scale relative to the existing building. 2. The written request also establishes that the proposed signage does not dominate the streetscape when considered in its context including the existing buildings and signage along the Parramatta Road transport corridor. 3. The written request establishes that the development includes the removal of the third roof sign facing West Street and this will reduce the existing visual clutter along the Parramatta Road and West Street frontages. And, as already stated, this will also create a consistent roofline with the existing and planned signage along the Parramatta Road transport corridor. The combined and/or cumulative surface area of the two signs is approximately 28m2, representing an overall reduction from the existing cumulative surface area (of the three existing signs) of 31m2. 4. The request establishes that the proposed signage is consistent with the aims of SEPP 64 in cl 3(1)(a)(i), (ii) and (iii) in that the proposal is compatible with the desired amenity and visual character of the area, and offers a high quality design and finish, and will provide an effective means of communication in a suitable location. The signage will be time limited to ten years and this will allow future development planning to be accommodated on the site. In summary, the written request demonstrates that the site is suitable for the development and that irrespective of the contravention of the standard, the signage above the parapet in this case will promote good design and amenity of the built environment in accordance with the objects of the EPA Act. 5. For the above reasons, as required by cl 4.6(4)(i), I am satisfied the Applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3). 6. Next, I am satisfied as required by cl 4.6(4)(ii) that the proposed signage is in the public interest because it is consistent with the underlying objectives of the standard (for the reasons outlined above) and consistent with objectives of the B6 Enterprise Corridor zone in which the development will take place (reproduced at [20]). 7. With respect to the zone objectives, I accept as the written request submits that: 1. the proposal has potential to promote businesses via its third party advertising along main roads; 2. the proposal will not affect the provision of residential uses in the locality; 3. third party advertising is compatible with the future character of the locality i.e. mixed-use commercial. 1. As the development does not raise any matter identified in subcl (5) and for the reasons stated, I accept the variation of the standard in cl 21(1)(b) under cl 4.6 of the MLEP is appropriate in the circumstances of this case, I now have power to grant the development consent to the proposed development. SEPP 64 requirements and other considerations under s 4.15 of the EPA Act 1. In addressing the remaining provisions of SEPP 64, I will deal first with cl 21(1)(c) of the SEPP which requires me to be satisfied that the display of the advertisement is consistent with the provisions of the MDCP. MDCP – total permissible signage area 1. As stated at [30] of my judgment, under C18 of the MDCP, the allowable signage area is related to the width of the frontage of the site to a public road and the total advertising area for the proposed signs fronting Parramatta Road at 28m2, exceeds the permissible area by about 1.1m2 or 4.06% – if both frontages used to calculate the allowable area. However, the parties are at issue as to whether to include both street frontages for the calculation. While they agreed that both frontages are to a major traffic corridor the Council contends that only the Parramatta commercial frontage should be used to calculate the area of the signage. I do not think that this approach is appropriate in this case. The experts agree that the signage of this site does not impact the residences further along the street or the heritage area. And as this corner site is part of the commercial streetscape of Parramatta Road, its frontage to West Street cannot be described as a residential street as understood under C18(ii). West Street is for this site a commercial address – a site identified as a heavy traffic corridor under the Strategy. In those circumstances I do not believe that it is reasonable to apply the reduced area applicable for residential frontages. 2. As identified, even counting both frontages, there is a small exceedence in the area of the allowable signage under C18. The Applicant asks me to accept the variation under Part 1.1.3 of the MDCP which allows for a variation of C18 where the objectives in Part 2.12.1 are achieved notwithstanding the numerical breach. 3. In this case, the Council has identified objectives 01, 02 and 03 and 08 in Part 2.12.1 as being relevant. After a consideration of those objectives and the evidence including the following agreed evidence of the planners, I am of the opinion that a variation of C18 is justified in this case. In short, it would be unreasonable or unnecessary to require strict compliance with the signage area where the planners agree that: 1. there is already significant signage in existence along the Parramatta Road traffic corridor (Joint Report at par 44); 2. the existing streetscape includes signage (both digital and non-digital) and the proposal will not change any important feature of the site or building (Joint Report at par 10); 3. the proposed signs are wholly within the site boundary (Joint Report at par 12); 4. the existing built form is simple and regular and the proposed signage structures are also simple and regular (Joint Report at par 13); 5. the scope of the development includes removal of the three signs and replacement of two signs – a reduction of visual clutter (Joint Report at par 9); 6. all cables and associated plant for the signage will be integrated into the structures to reduce visual clutter (Joint Report at par 17); 7. the desired future character is, in part, set out in the B6 Enterprise Corridor zone and the development meets the zone objectives (Joint Report at par 52); 8. the subject site is identified within the Parramatta Road Corridor Urban Transformation Strategy ("PRCUTS") as part of the Taverners Hill Precinct. This Strategy also establishes (subject to the B6 zone objectives) the desired future character of the area and describes it as consisting of mixed use developments with commercial land uses focussed along Parramatta Road (Joint Report at par 54); 9. the PRCUTS recommends a future building height of 17m for the subject site; 10. the signage will be subject to a ten-year time limitation to accommodate future planning controls. 1. I do not accept that the scale of the roof signage is excessive in relation to the relatively low scale of the building as Mr Newman suggests in the Joint Report. The fact that the building is in a low point of the street assists to lower the impact of the signage. The other traffic signage and lights proximate to the Parramatta Road frontage and the backdrop of the larger, more dominate signage when viewed from Parramatta Road heading south assist to make the signage fit within the existing streetscape. As Mr Wilkes observed, the improved quality of the signage, the introduction of time-limited consent – allowing for future assessment and consideration of the future character – together with the reduction in the height of the signage relative to the existing signs support a finding that the objectives in Part 2.12.1 are achieved in this case. The signage is consistent with the intended land use, the exceedence of the signage area is relatively small in the context of existing streetscape and therefore, it would be unreasonable and unnecessary to require strict compliance with the control. 2. As I am satisfied that the display area of the advertisement is consistent with the MDCP (albeit in a form allowed under the variation clause), I can comfortably say that I am satisfied as required by cl 21(1)(c) of SEPP 64. 3. I will now move to the next hurdle in cl 21(1)(a) of SEPP 64, which provides: (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 1. At the hearing, the Council accepted that the advertisement replaces one or more existing roof signs. I am also satisfied of the fact. Next, cl 21(1)(a) specifically requires that I am satisfied that the advertisement improves the visual amenity of the locality in which it is displayed or that the advertisement improves the finish and appearance of the building and the streetscape. 2. Relevantly, the clause invites satisfaction in relation to cl 21(1)(a)(i) or (ii). In this case, I am satisfied about both limbs. 3. The relevant locality in which the signage will be displayed is the Parramatta Road streetscape. When assessing whether there is an improvement in visual amenity of the locality by the proposed advertisements, this requires a comparison of the "before" and "after". 4. The planners agreed that the site presently contains poor quality roof signage (Joint Report at par 38). In that context, the advertisements will obviously improve the visual amenity of the locality: * by replacing an out-dated signage format with a contemporary high quality replacement; * by reducing visual clutter by offering a simple and regular advertising structure; * by providing an advertisement that is lower in height than the existing signage; * by providing an advertisement that does not detract from the promotion of businesses and a mix of compatible uses along Parramatta Road as anticipated by the statutory framework; * by providing an advertisement that will add visual interest to the locality and be appropriately aligned with the existing and planned future character of the Parramatta Road corridor. A precinct which is intended to have a visual character which consists of commercial mixed-use type developments focussed on Parramatta Road; * by providing advertisements that will contribute to "lively centres" consistent with the character statement in the MDCP and in consistent with the objectives of the MLEP. 1. The proposed advertisements do not compromise the appearance of the building or dominate the streetscape or skyline for the reasons set out in the cl 4.6 request summarised earlier, The advertisements reduce in visual clutter by the removal of the more bulky older style signage and the supporting structures and this will be an improvement of the visual amenity in the locality. The new contemporary streamlined advertisement will, by its finishes and appearance, improve the appearance of the building and the streetscape to Parramatta Road by reducing visual clutter For those reasons, I am satisfied that cl 21(1)(a)(ii) is satisfied. 2. At the hearing, the Council identified that the development's "… [compatibility] with the desired amenity and visual character of an area": cl 3(1)(a)(ii) of SEPP 64 was the central issue of the case. This issue is relevant not only because it is a stated objective of SEPP 64 in cl 3(1)(a) which is a mandatory consideration under cll 8, 13(1)(a) and (2)(a), but also because it arises as a relevant matter under the assessment criteria in Schedule 1. 3. In dealing with the Applicant's written request, I considered this objective in cl 3(1)(a) of SEPP 64 and decided that I am satisfied that the development is consistent with this objective. In forming this view, I had regard to Mr Newman's concerns about an increase in signage projecting into the visual catchment on Parramatta Road and increase in visual clutter in the area. While accepting that the proposed signage structures are simple and regular, Mr Newman took issue with the scale in the context of the Parramatta Road frontage which he considered to be the dominant streetscape for the purposes of analysis. While he conceded that the removal of the roof sign facing West Street resulted in a minor reduction in the total signage area, he was of the view that this did not bear on the proliferation of signage to Parramatta Road (Exhibit 2 at pars 41 and 50). 4. In Court, Mr Newman said that the proposed signage will result in an increase in the size and intensity of roof-mounted signage on the existing building in a manner which he considered to be uncharacteristic in the streetscape. Furthermore, he expressed the view that the proposed signage did not improve the visual amenity of the locality or improve the appearance of the building and streetscape but rather resulted in signage that dominates the building and increases visual clutter. In short, his view is that the proposed signage increases the extent of signage projecting to Parramatta Road. 5. In addressing the predominant character of the area, Mr Wilkes had regard to both the Parramatta and West Street contexts as the relevant streetscape (acknowledging that West Street is a major road and also part of the transport corridor and thereby part of the visual catchment for the purposes of assessment). In his opinion, the proposed new signage together with the removal of the West Street signage reduces overall signage within the streetscape whilst acknowledging that signage is part of the character and proposal is entirely consistent with the character statement and objectives and the MDCP emphasising that Parramatta Road is a major transport corridor and thereby a suitable location for advertising signage. 6. I do not accept Mr Newman's evidence because it does not accord with my observations of the visual character of the area or the desired amenity in the context of the MDCP including Control 9.35 Parramatta Road (Commercial Precinct 35) or the B5 zone objectives. Nor does it sit easily with his comment in the Joint Report at par 44 that "…there is significant signage in existence along the Parramatta Road corridor" or that "digital format signage is commonly located along major transport corridors" at par 45. 7. To my thinking, the removal of the West Street roof signage offers more than a "minor reduction in total signage in the area". This third sign is dominate in the visual character of the area as it is clearly visible from West Street and certain vantage points on Parramatta Road. The photograph below shows the third sign in the visual character of the area. 1. The removal of this signage will clearly have a direct bearing on the proliferation of signage in the relevant area by reducing the visual clutter along West Street and Parramatta Road. Additionally, the improved quality of the new signage, at a reduced height for a limited timeframe must be considered as being compatible with the desired amenity and visual character of the area. The Parramatta Road Commercial Precinct 35 in the MDCP includes the southern side of Parramatta Road and specifically acknowledges this classified road's intersection with West Street (the site). It describes the existing character along Parramatta Road as largely commercial, conveying high volumes of traffic – characterised by congestion during peak commute hours (Exhibit 4, folio 247). This description accords with my observations. I need say no more about cl 3(1)(a), the proposal satisfies this objective. Desired future character 1. The Council is critical of the proposal on the basis that it is not consistent with the desired future character of the area (Contention 3). 2. In addressing the development's consistency with the desired future character of the area, both planners accepted that the applicable development control plan for the subject site is the MDCP and that the desired future character is, in part, set out in the MLEP being located within the B6 Enterprise Corridor zone through the objectives. And, because the site is identified within the Parramatta Road corridor, the PRCUTS as part of the Taverners Hill Precinct are also relevant policy documents as they establish that the desired future character consists of mixed-use developments with commercial land uses focusing along Parramatta Road. Noting that the PRCUTS recommends a future building height of 70m the subject land. 3. Relevantly, both planners agreed that there is potential for the character of the locality to change over the next 15 years through further development and that a time limit on the consent allows for future consideration of this changing character over time. To that end, the proposed conditions of consent provide a maximum time limit for the proposed signage for a period of ten years from the date of determination – consistent with cl 21(2)(a) of SEPP 64. 4. The desired future character is outlined at Part 9.35.2 of the MDCP. This part of the MDCP relates to the commercial area along Parramatta Road within, and outside of, the heritage conservation area. As the building at issue in this case is not within the identified heritage conservation area, some of the elements of the desired future character listed in Part 9.35.1 Parramatta Road (Commercial Precinct 35) is not relevant. 5. At the hearing, the Council identified the following item as relevant to informing the desired future character for the site. "4. To protect and enhance the character of streetscapes and public domain elements within the precinct including prevailing subdivision patterns, building typologies, materials and finishes, setbacks, landscaping, fencing, open space, carriage way and footpath design and curb and guttering" 1. In my assessment, there is nothing proposed in this application which is incompatible with the desired future character as described above or as set out in the B6 Enterprise Corridor Zone objectives. The planners agree that the development in its contemporary form will be lower in height than the existing signage and more simple and contemporary in design and regular in presentation. They also agree that the development which includes the removal of the third sign is an improvement in the visual amenity of the streetscape. After construction, the end result will be a slim line advertisement in a contemporary form in a context of commercial development along a major transport corridor (MDCP Part 2 Generic provisions, folio 200 of the Tender Bundle). With that in mind, I am satisfied that the development will provide innovative and contemporary signage as is encouraged by the MDCP. As such, it will be compatible with the desired future character of the area based on the evidence before me. 2. It is also the case that the development will be compatible with the types of signage envisaged by the Parramatta Road Corridor strategy documents by supporting "… a productive business environment that supports a range of viable and prosperous business and variety of employment opportunities". DCP – General Controls 1. Referring now to the general controls in Part 2.12.2. Of the MDCP in C1 which deals with prohibited signage, the planners agree that the proposed signage will not include flashing or moving graphics and will be permanently fixed to the premises and that the development will not adversely affect traffic lights or obstruct motorists' vision and any intersection or entering or leaving a vehicle crossing. The traffic report provided with the application prepared by TDG dated January 2018 supports this finding as does the letter from the Roads and Maritime Services dated 3 May 2018. 2. Additionally, it is agreed that the signs are wholly within the site and boundary and will not extend over the street boundaries. The 24-hour illumination will be subject to the dimming requirements outlined within the control of the intrusive effects of Outdoor Lighting Standard and the proposal will not cause any lighting impacts or reduction in visual amenity to nearby residences or accommodation (tElectrode light report dated 16 January 2018). 3. Controls Part 2.12.12 objective 1 requires that the scale and location of the sign must be compatible with the architectural design of the building to which it is affixed and nearby buildings, streets and other existing signage. In this case, the signage will be setback from the façade so as to maintain visibility of the building. The experts agree that the structure is minimal and will be compatible with the existing building façade. The signs do not physically extend into this visual corridor. 4. Part 2.12.1 Control C3 also requires that the number of signs on the building, site or adjoining streetscape must be considered to ensure the new signage does not give rise to visual and/or physical clutter. The control also provides that in deciding the location for a sign, the view of the sign and any supporting structure/cabling etc - all angles must be considered including visibility from the street nearby higher buildings and against the skyline. When considering this control, the planning experts in the Joint Report accepted that all cables and associated plant for the signage will be integrated into the structure and reduce visual clutter (Exhibit 2 at par 17). They also accepted that third-party advertising is common along transport corridors and is not of itself relevant to the consideration of the merits of the proposed development. Additionally, they accepted that there is other signage in existence along the Parramatta Road corridor in digital format. 5. The experts disagreed as to whether the proposed signage resulted in an unacceptable proliferation of signage on the building such as to contribute to visual clutter within the streetscape. Mr Wilkes said that the removal of the third sign facing West Street was relevant when assessing whether the proposal contributed to visual clutter within the streetscape. His evidence accords with my observations of the relevant streetscape. The West Street frontage is visible from Parramatta Road and therefore as Mr Wilkes suggests both frontages form part of the visual catchment and relevant streetscape when considering this issue. Therefore, I accept that the removal of that West street sign as part of this proposal reduces visual clutter in the relevant streetscape and does not result in a proliferation of signage. 6. Finally, I turn to the Council's contention that the application does not satisfy assessment criteria in Schedule 1 to SEPP 64. Under cll 8, 13 and 17 of SEPP 64, I am required to be satisfied that the development is acceptable in terms of its impacts. 7. The URBIS, Statement of Environmental Effects, lodged with the application and prepared by Mr Wilkes has addressed each of the assessment criteria at pages 8-11. This assessment was updated and supplemented by Mr Wilkes' oral evidence at the hearing. 8. As identified earlier at [30], the Council is dissatisfied with parts of the Applicant's response to the assessment criteria in Schedule 1 to SEPP 64. However, after a consideration of the Council's evidence and submissions on this issue I do not accept its view that the assessment criteria do not adequately address the impact of the signage. 9. On the basis of the Applicant's EIS prepared by URBIS dated January 2018 (URBIS) lodged with the DA – which addressed the criteria, and Mr Newman and Mr Wilkes' oral evidence, I am satisfied that the signage will have an acceptable impact – generally and particularly in relation to the matters identified by the Council. In terms of site context, the planners have agreed that the proposed displays are situated in an environment characterised by industrial and commercial land uses and a diversity of built form. This was evident at the site view. This exposure of the site and surrounds to large traffic flows on Parramatta Road has encouraged a wide range of signage to be established in this area. And, the proposed signs are in a context of an existing streetscape which includes signage both digital and non-digital (see [49] above for particular examples of signage proximate to the site). This surrounding existing context is as described in the URBIS report as being: * Light industrial/retail land uses generally to the north beyond Parramatta Road, with some to the east (beyond West Street) and immediately west of the subject site. * Detached dwellings and apartment buildings to the south and southwest – which it is accepted are unaffected by this proposal. 1. The focus, as Mr Newman suggests, is the dominate Parramatta Road streetscape. In time, it is anticipated that this locality will be characterised by tall mixed-use developments, with commercial land uses focussed along Parramatta Road (PRCUTS as part of the Taverners Hill Precinct). When the application is considered in that context, I am satisfied that the assessment criteria identified by the Council as being not satisfied is, in fact, satisfied for the reasons stated in the application and the evidence as already summarised – noting that the same planning evidence is referred to in answer to several applicable separate controls. Conclusion 1. After consideration under s 4.15 of the EPA Act, I find that the proposal is acceptable on its merits in terms of design, road safety and the public benefit. The development satisfies all relevant requirements of SEPP 64 and the relevant provisions of the LEP and DCP and identified strategy documents. Therefore, it follows that development consent on a conditional basis is granted. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. 2018/00033 is granted subject to the conditions of consent in Annexure A. …………………… S Dixon Senior Commissioner of the Court Annexure A (107 KB, pdf) ********** Amendments 15 November 2019 - Correction to administrative error at [90] 18 November 2019 - Correction to typographical error at [41] 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: 18 November 2019