888 New Canterbury Road Pty Ltd v Inner West Council

The site and locality

1. Properties to the east of the site consist of shop top housing development forming the Dulwich Hill Commercial Precinct along New Canterbury Road. To the West of the site is a two-storey commercial building occupied by the Salvation Army with residential development beyond into Dulwich Street and Lewisham Street.
2. To the south of the site, on the opposite side of New Canterbury Road are single and two storey shop top housing developments, a three storey pub/hotel building and part 5, part 6 storey shop top housing.

Planning controls

1. The development control order (the order) was issued pursuant to s 9.34(1)(a) and Schedule 5 of the EPA Act on 11 May 2018. The order states: "Development Control Order Under Section 9.34(1) and Schedule 5 Environmental Planning and Assessment Act 1979 Premises: 429-449 New Canterbury Road, Dulwich Hill NSW 2203 Lot 1 DP 1223044 Council previously notified you of its intention to give you an Orders No. 3 as set out in Schedule 5 of the Environmental Planning and Assessment Act 1979 in respect of the above premises. Your written representation/s dated 22 April 2018 have been considered. The Order: 1. Demolish and remove the advertisement signs attached the windows along the street frontage, at the above mentioned premises. 2. Demolish and remove the advertisement signs attached the awning along the street frontage, at the above mentioned premises. From the date of this Order, you will have 28 days to comply Circumstances giving rise to the issue of the Order: The building work has been erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and prior construction certificate are required. Reasons for the Order: 1. The building works have not been assessed by Council as to whether the premises comply with the Environmental Planning and Assessment Act 1979 and the Building Code of Australia (BCA). 2. The building works are not exempt from the development approval under the State Environmental Planning Policy (Exempt and Complying Codes) 2008. 3. A review of Council's records failed to reveal any evidence of a development approval being granted for the above mentioned building works. 4. The commencement of building works without prior consent effectively removes the right of surrounding residents, neighbours, stakeholders and interested parties make submissions in relation to the premises through assessment procedure under the Environmental Planning and Assessment Act 1979. 5. The above mentioned premises is a heritage item under Marrickville Council's - Local Environmental Plan (LEP) 2011 and is required to have a development application prior to any building work." (Exhibit 3)
2. By virtue of s 8.18(4) of the EPA Act, upon hearing this appeal the Court may: 1. revoke the Order, 2. modify the Order, 3. substitute for the Order any other order that the Council could have given, 4. find that the Order is sufficiently complied with, 5. make such order with respect to compliance with the Order as the Court thinks fit, or 6. make such other order with respect to the Order as the Court thinks fit.
3. In relation to the orders appeal (Matter number 2018/176935) the parties have agreed the following consent orders: "1. To the extent necessary, the appeal is upheld. 2. The development control order (ORD002055) given to the applicant by the respondent on or about 11 May 2018 is modified to the extent that its terms must be complied with within 90 days after the date in which the Court make final orders disposing of proceedings no. 2019/122451. 2A. For the purposes of clarity, the above order 2 does not require demolition of the existing facia board if the Court upholds the appeal in the proceedings referred to in that order and the development is completed in accordance with the associated development consent within the time referred to in that order."
4. State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) applies to the Development Application. The Respondent argues SEPP 64 is relevant as the proposed development is inconsistent with the objectives of SEPP 64, namely: 3(1)(a) To ensure that signage (including advertising): (i) is compatible with the desired amenity and visual character of an area; (ii) provides effective communication in suitable locations; and (iii) is of high quality design and finish.
5. Clause 8 of SEPP 64 contains the following precondition: A consent authority must not grant consent 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.
6. Further, the Respondent argues that the proposed development is not acceptable having regard to the assessment criteria contained in Schedule 1 of SEPP 64. In particular: "1. Character of the area - Is the proposal compatible with the existing or desired future character of the 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? … 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? …" (Exhibit 3)
7. Council argues that the precondition at cl 8 of SEPP 64 is not met by the proposed development, but would be met subject to the following conditions being applied to the consent to modify the development The Respondent's proposed conditions are detailed at [26].
8. The development application is subject to the provisions of Marrickville Local Environmental Plan 2011 (LEP 2011). Under LEP 2011 the subject property is a contributory building located within the Dulwich Hill Commercial Precinct Heritage Conservation Area (HCA).
9. The Respondent argues that the design and extent of signage is contrary to Clause 1.2 - (g) and (h) of LEP 2011 in that it fails to exhibit an acceptable level of design quality, fails to conserve the environmental heritage of Marrickville and as such would have an adverse impact on the streetscape contributory building and conservation area
10. The development application is subject to the provisions of Marrickville Development Control Plan 2011 (DCP 2011). The Respondent argues that the proposed development does not meet the objectives of Part 2.12.2, in particular: "O1 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 the streetscape and the size and juxtaposition of other signs in the immediate vicinity. O2 To ensure signage does not dominate or detract from the architectural features of the building and from the white-way lighting found along some retail shops. O3 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. O5 To ensure the use of corporate logos, colour and illumination schemes in signage are compatible. O8 To ensure advertising does not result in visual clutter or other visual impacts upon a locality."
11. The Respondent argues that the development is not compliant with the following controls in DCP 2011:

• Control C1 of Part 2.12.2 of the DCP prohibits signs lower than 2.6 metres above the footpath. The window signage does not demonstrate compliance with this control.
• Control C2 of Part 2.12.2 of the DCP restricts signage content to the street number, name and general nature of the business. The signs with "open 7 days", "since 1988" and "9569 6133" do not demonstrate compliance with this control.
• C4 of Part 2.12.2 of the DCP prescribes that signage colours must be compatible with the colour scheme of the building. The red proposed along the fascia and windows does not demonstrate compliance with this control and bears no relevance and is at odds with the approved colour scheme for the contributory building.
• The placement of the awning fascia signs do not relate to the architectural design of the building therefore not demonstrating compliance with C3 of the DCP.
• Control C13 of Part 2.12.2 of the DCP specifies that window signage must be temporary in nature and not cover more than 60% of the window surface. The proposal does not demonstrate compliance with this control.

1. The Respondent argues that the development is inconsistent with the activation principle contained in Part 2.1 of DCP 2011 and objectives and controls relating to the principles of Crime Prevention Through Environmental Design (CPTED) at Part 2.9 of DCP 2011. The Respondent argues that the window covering proposed is inconsistent with the requirement to provide an active street frontage and passive surveillance to the street.
2. Further the Respondent argues the proposal is contrary to the provisions of Part 5.1.4 of the DCP in that the proposed signage to both the contributory building and infill building is detrimental to its visual presentation and the streetscape and that the development is inconsistent with the following objectives of Part 5 of DCP 2011: "O42 To retain and restore contributory shopfronts for contributory and period buildings. O46 To provide active street frontages."
3. As the subject site is located in a HCA, the provisions of Part 8 of DCP 2011 apply. The Respondent identifies that the following are relevant:

• 8.2.30.1: Statement of Significance: "The Dulwich Hill Commercial Precinct Heritage Conservation Area is of aesthetic significance as a largely intact retailing precinct of the period 1890 to 1938, retaining original parapeted roof forms, recessed shopfronts, generally intact first floor shop facades and some representative examples of inter-war residential flat buildings. It demonstrates the development of a major suburban shopping precinct following the extension of the tramline from Marrickville to Dulwich Hill along Marrickville Road in 1889, later tramline extension in 1913 and the opening of the Dulwich Hill rail station in 1895. Shops and buildings from each major period of retailing have survived and continue to contribute to the aesthetic, historic and social values of Dulwich Hill and the Marrickville LGA. The HCA's streetscapes are of aesthetic significance because they encompass a substantially intact mid to late 19th century retail precinct. The aesthetic value of the area is enhanced by the undulating alignment of New Canterbury Road, which provides a fine series of evolving views and vistas including at the intersection with Marrickville Road. The commercial and retail buildings demonstrate the principal characteristics of the traditional suburban shopping area with narrow shopfronts and clearly defined structural bays providing physical evidence of the regularity of the underlying subdivision pattern. Although evidence of most original shopfronts has been lost, the streetscape at pedestrian level remains cohesive due to the regular spacing of the original shopfronts and the 1920s hanging white-way lights under the awnings, creating a distinctive aesthetic quality to the streetscape and accentuating the curvature of the façade as it follows New Canterbury Road. The consistency of the parapeted and enclosing street wall, with its finely worked detailing, creates a high quality and strongly defined skyline view from the opposing footpath and travelling through the area." (Exhibit 3)
• 8.2.30.5: Elements that contribute to the consistency of the streetscape (visible from the public domain) "… (v) Detailing and finishes appropriate typology and period of construction: … (d) Appropriate colour schemes for detailing; and (e) Advertising signage does not intrude in the streetscape view."

Public submissions

1. In accordance with the provisions of the DCP 2011, the development application was notified to adjoining and nearby properties. The Court also heard from residents objecting to the proposal onsite at the commencement of the hearing.
2. The objections concerning the proposed development raise the following main issues:

• that the signage proposed is excessive,
• a concern in regards to the colour of the signage proposed (red) and its impact on the contributory building, and
• that the signage is inconsistent with the provisions of SEPP 64.

Expert evidence

1. As part of the preparation for the proceedings, Mr Asher Richardson and Mr Ali Hammond, the town planning experts for the Respondent and the Applicant respectively met along with Mr Sinclair Croft and Mr James Phillips heritage experts. These experts joint conferenced on the contentions and produced a joint report which was tendered as Exhibit 2 in the proceedings.
2. As a result of joint conferencing and the grant of leave for amended plans, the principal remaining issues in the proceedings is are: 1. Which colour red is appropriate for the proposed signage design. 2. Whether the signage film is to be applied to the internal or external face of the window glass. 3. The extent of shop front windows to which graphics of generic hardware products are applied. 4. The nature of the display required in windows that do not contain window signage.

Parties' alternative versions of Condition 3 & 4

1. The Respondent proposes that the development application should be approved subject to the following conditions. "3. Window Display … b) In accordance with the approved plans, no more than 6 of the shop front windows (excluding the heritage interpretation signage referred to below) are to contain window graphic. All such window graphic is to reference generic hardware products only and is not to contain specific brand names or pricing relating to specific items sold on the premises. c) The window panes on Lewisham Street containing historical imagery (as per DWG No. 1 Rev. 07) are to exclusively contain imagery selected from the images that appear on the front cover of and in figures 3-6 and 8 to the Heritage Impact Statement - 429-449 New Canterbury Road Dulwich Hill prepared by Weir Phillips Architects and Heritage Consultants dated July 2014. All heritage interpretation signage approved by Council (as amended by this Condition) must be displayed and maintained to a reasonable standard (including to a scale and resolution quality equivalent to the historical imagery shown on DWG No. 1 Rev. 07) at all times that any other window graphic referred to above is displayed. d) Those shop front windows not containing window signage, including the splayed shop front glazing on the corners of Lewisham Street and Dulwich Street, are to exhibit physical product displays within the shop front, between shelving aisles. No shelving, with the exception of the side of shelves permitted along the walls forming the window bays, is to be placed so that it obscures views in and out of the shop. 4. Fascia signage a) The red colour proposed for the fascia must be amended to the commercially available Indian Red as listed in Appendix A of Exterior Paint Colours, Technical Bulletin 1.2, by the Australian Council of National Trusts prior to the erection of the signage. b) The proposed fascia signage, including its colours (as amended by this Condition) must be erected in accordance with this Consent and may not be altered except in accordance with a separate approval of Council."
2. The Applicant argues that, on the evidence, the following conditions are reasonable: "3. Window Display … (b) Every odd numbered window pane on the New Canterbury Road elevation as well as the window pane on the Dulwich Street elevation and Lewisham Street splay corner, may contain imagery of tools or related products sold at the store, excluding specific branding, pricing or other product details. c) The window panes on Lewisham Street containing historical imagery (as per DWG No. 1 Rev. 07) are to exclusively contain imagery selected from the images that appear on the front cover of and in figures 3-6 and 8 to the Heritage Impact Statement - 429-449 New Canterbury Road Dulwich Hill prepared by Weir Phillips Architects and Heritage Consultants dated July 2014. All heritage interpretation signage approved by Council (as amended by this Condition) must be displayed and maintained to a reasonable standard (including to a scale and resolution quality equivalent to the historical imagery shown on DWG No. 1 Rev. 07) at all times that any other window graphic referred to above is displayed. 4. Fascia signage The proposed fascia signage must be erected in accordance with this Consent and may not be altered except in accordance with a separate approval of Council."

Colour

1. Mr Phillips' evidence is that the Statement of Significance for the HCA references the key period of the conservation area as being 1890's -1938. In reaching this conclusion, he relies on the first sentence of statement, namely: "The Dulwich Hill Commercial Precinct Heritage Conservation Area is of aesthetic significance as a largely intact retailing precinct of the period 1890 to 1938, retaining original parapeted roof forms, recessed shopfronts, generally intact first floor shop facades and some representative examples of inter-war residential flat buildings" (Exhibit 3).
2. Further, it is Mr Phillips' evidence that by the 1930's a wide range of colours were available, including a range of reds. Relying on the 'Ramsay's Architectural Catalogue of 1931' (Ramsay Catalogue), which included a number of red finishes, Mr Phillips concludes: "It is therefore reasonable to assume that during part of the key period of the Conservation Area, red could be used as a colour for signage and is, therefore, a suitable colour for use in the Conservation Area." (Exhibit 2)
3. In conclusion, Mr Phillips states that: "the red proposed is sufficiently similar in hue to the 1931 colour charts provided as Appendix F [an extract of the Ramsay Catalogue] and is a suitable colour for the fascia, noting the majority of the fascia is painted dark grey and that only a small portion of the signage as a background to the lettering is in red" (Exhibit 2).
4. A sample of the proposed colour, Pantone Red 199C (Pantone Red) was tendered as Exhibit 6 to assist the Court.
5. In the joint report, it is Mr Croft's evidence that the 'Fascinac Lacquers' listed in the Ramsay Catalogue was not used on buildings. He argues that the applicant has provided no evidence that 'red was used for signage during the key period of the Dulwich Hill Commercial Heritage Conservation Area". Mr Croft concludes that Pantone Red 'is not a suitable colour for use in a Conservation Area' and that the signage colour should be amended (Exhibit 2).
6. Mr Croft argues that a more appropriate guide for the determination of signage colour is the 'National Trust of Australia (Victoria) Technical Bulletin 1.2: Exterior Paint Colours' (Exterior Paint Bulletin). He notes this Exterior Paint Bulletin is referenced as the appropriate source in the guide: 'Australian Council of National Trusts Technical Bulletin 2.2: Lettering and Signs on Buildings c. 1850-1900' (Signage Bulletin). The Signage Bulletin states: "Sign Colours The range of colours set out in the current edition of the National Trust of Australia (Victoria) Technical Bulletin 1.2: Exterior Paint Colours should be the guide for all signs and letter faces."
7. It was Mr Croft's oral evidence that the National Trust Bulletin identifies 'Indian Red' as one of twelve appropriate exterior paint colours. He supports the proposed condition of the Council (at [26]) which requires the colour proposed for the fascia to be amended to Indian Red. A sample of such a colour was tendered as Exhibit 9 to assist the Court.
8. Further, Mr Croft concludes that: "the proposed Alucobond finished in Pantone Red 199c is not supported as this colour is not compatible with the desired future character of the area and will detract from the visual quality of the Dulwich Hill Commercial Precinct Heritage Conservation Areas" (Exhibit 2). It was Mr Croft's oral evidence that the desired future character of the HCA should reflect the architectural era of the buildings (1850-1900).
9. In his oral evidence, Mr Croft agreed that the existing character of the locality in proximity to the site includes examples of the use of Indian Red (fascia and highlights on the Gladstone Hotel) and of red similar to that proposed by the Applicant (notably the IGA opposite the site and Dulwich Hill Newsagency). Mr Phillips accepted these observations.
10. In the joint report, the planners agree that the appropriateness of the proposed colour is a matter for the heritage experts.

Application of signage film

1. Prior to the commencement of their oral evidence, the experts had a further discussion regarding whether any signage film on the windows should be applied to the internal or external face of the glazing. In their oral evidence, the planning experts clarified that the key issue concerning the proposed signage film was its quality and durability.
2. It was observable during the site view that portions of the existing signage film, which is applied to the external face of the glass, had been removed or vandalised.
3. The Applicant's preference is that the signage film is applied to the external face of the window glass as the security bars are affixed internally, making access to the inside face for installation more difficult.
4. The experts prepared the following agreed condition to assist the Court: "(a) All window signage is to be opaque and fixed directly to the exterior of the shop front glazing. i. In the event of damage to the window signage, Council may require the replacement of the signage to Council's satisfaction within 28 days. ii. The condition of the window signage shall be reported with photographic evidence to Council within a period of 12 months after installation and then at regular 12 month intervals thereafter. iii. Detail of the signage material and suitable protective coating must be submitted to and approved by Council prior to installation." (Exhibit 8)
5. This condition was accepted by the Applicant.

Extent of signage

1. The subject premises has three street frontages:

• • Dulwich Street nominated on the Architectural plans as the S-W Elevation;
• • New Canterbury Road, which is the main elevation of the premises, the S-E Elevation; and
• • Lewisham Street, the N-E Elevation.

1. Signage is proposed on each of the elevations. The following photomontage, showing the New Canterbury Road and Lewisham Road elevations, is extracted from Exhibit B:
2. In the joint report, the planning and urban design experts reach the following agreements:

• That the content of the signage on the awning fascia containing 'open seven days', 'since 1988' and '9569 6133' are details that describe the general nature of the business and are appropriate having regard to similar signage in the streetscape and the HCA.
• That the amended proposal to retain every even numbered window bay on the New Canterbury Road façade is 'a positive contribution to the streetscape appearance' (Exhibit 2).
• That Control C13 of DCP 201, which specifies that window signage must be temporary and not cover more than 60% of the window surface, could be resolved by a condition that: "every odd numbered window pane on the New Canterbury Road elevation as well as the window pane on the Dulwich Street elevation may contain imagery of tools or related products sold at the store, excluding specific branding, pricing or other product details." (Exhibit 2)
• That the graphics on the Lewisham Street elevation should be historical images relevant to the building, the site and the commercial precinct along New Canterbury Road.
• That every even numbered window pane on the New Canterbury Road elevation should remain free of any graphics to enable interaction from the street to the shop and vice versa.
• That every odd numbered window pane on the New Canterbury Road elevation as well as the window panel on the Dulwich Street elevation may contain imagery of tools or related products sold in the store. Such imagery should exclude specific branding, pricing and other product details.
• (Exhibit 2)

1. These agreements are captured in the consent conditions, the specifics of which the Applicant and Respondent are not agreed.
2. In particular, the Applicant objects to the Respondent's requirement that the splayed window on the Lewisham Street frontage not contain window signage or historical imagery. The relevant windows are identified below in an extract of the New Canterbury Road elevation:
3. It was Mr Hammond's oral evidence that he had not intended his agreement to retain each of the even window bays as a clear window on the New Canterbury Road elevation to include the splay window to Lewisham Street. Further, Mr Hammond argues that Control C13 of Part 2.12.2 of the DCP 2011 does not apply as the relevant signage is not 'painted' on the glazing.
4. The Respondent's condition would require the amendment of the architectural plans to indicate the splay window to Lewisham Street as a clear glazed window.

Treatment of windows without signage

1. Mr Richardson's evidence is that: "… in order to allow every second window being entirely covered with signage or advertising (images of products sold in the store), the remaining windows must be provided with physical product displays and not the back or side of shelving. The displays should be updated regularly and provide visual interest to divert attention away from the security bars. Passive surveillance in and out of the shop must be maintained. The displays must address the street front to provide a meaningful and engaging shop front presentation and demonstrate consistency with the intention of Control C12 which is to provide passive surveillance and street activation." (Exhibit 2)
2. In his oral evidence, Mr Richardson maintained his view that product display in these windows, or the retention of clear glazing, is required for the alternate windows. His reasoning is that clear glazed windows will maintain visual interest, street activation and passive surveillance.

Submissions

1. Mr Cottom submits that the Respondent no longer seeks for the Court to refuse the proposed development. Rather, the Respondent seeks for the application to be approved subject to the conditions detailed in [26]. These proposed conditions seek to amend the development for which consent is granted: s 4.17(1)(g) of the EPA Act.
2. Mr Cottom argues that the requirement to change the proposed fascia colour to Indian Red (Condition 4 (a)) is warranted based on:

• Mr Croft's evidence that the proposed Pantone Red is not a suitable colour in the HCA and will have a detrimental impact.
• the requirement of SEPP 64 at cl 3(1)(a)(i) to ensure that signage is compatible with the desired future character.
• that in determining the desired future character the Court should give weight to the statement of significance of the HCA and the development controls contained in DCP 2011.
• that the detrimental impact on the HCA argued by Mr Croft is inconsistent with the satisfaction of the Assessment criteria 2 in Schedule 1 of SEPP 64.

1. Further, Mr Cottom argues that Mr Croft's evidence on the detrimental impact of the proposed development on the HCA is relevant to the Court's consideration of the application under cl 5.10(4) of LEP 2011, and the merits of the application.
2. In undertaking the merit assessment of the application, Mr Cottom emphasises the need for the consideration of:

• the HCA controls in DCP 2011, in particular, the elements at 8.2.30.5(v) which contribute to the consistency of streetscape: "(d) Appropriate colour schemes for detailing (e) Advertising signage does not intrude into the streetscape view"
• the requirement at C4 of Part 2.1.2.2 for the colour used in the design of an advertising sign or structure to be compatible with the colour scheme of the structure/building to which it is attached.

1. Mr Cottom argues that subject to the application the Respondent's conditions, in particular condition 3, the application meets the planning controls and warrants approval.
2. In response to Mr Eastman's submission that the Pantone Red proposed by the Applicant is already in the vicinity of the site, Mr Cottom argues that the test for the Court is not one of prevalence, but of compatibility with the HCA. Mr Cottom submits that on Mr Croft's evidence compatibility with the HCA is not achieved.
3. Further, Mr Cottom argues that it is self-evident that the examples of Pantone Red in the context are minor elements of the building or a highlight colour. Mr Cottom argues that this is not the case for the current proposal where the proposed use of Pantone Red is expansive.
4. On the question of which colour is appropriate for the proposed signage design, Mr Cottom concludes that the Court should prefer the Council's proposed condition 4 which requires the substitution of Pantone Red with Indian Red.
5. The Respondent's proposed condition 3 (d), requires that shop front windows, including the splay windows at both Lewisham and Dulwich Street corners to be absent of signage and instead include window displays. Mr Cottom argues that this requirement is supported by Mr Robinson's evidence, summarised at [50]-[51]. Further, Mr Cottom argues that the Court should give weight to the DCP controls which seek to create street activation, passive surveillance and to control the percentage of shopfront glazing utilised for signage.
6. In the alternative, Mr Eastman focuses in his submissions on the statutory test for the Court at cl 8 of SEPP 64 (refer to [12]).
7. Mr Eastman submits that the emphasis of the Court's assessment should be in relation to the tests that form the precondition at cl 8 of SEPP 64. Those being first that the Court must be satisfied that the proposed signage is consistent with the aims of the policy: the compatibility of the proposed signage with the existing and desired future character; provision of effective communication; and being of high quality design and finish. And secondly, that the signage proposed satisfies the assessment criteria at Schedule 1 of SEPP 64.
8. In assessing if the proposed signage is compatible with the character of the locality Mr Eastman notes that the Court's planning principles in Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture v Pittwater) would be an appropriate approach for the Court to take to that assessment.
9. Mr Eastman emphasises that in considering the Signage and Adverting controls at 2.12 of DCP 2011 the objectives and the relevant controls at C4 Signage Colour seek for the signage to be compatible with the host building.
10. Mr Eastman submits that the presence of red signage within the IGA supermarket opposite, and newsagencies and another business in the vicinity are of direct relevance. He argues that Mr Croft's reliance on the National Trust Bulletin is misplaced as the bulletin it is at the incorrect period for the HCA. Further, he argues that the test at cl 8 of SEPP 64 is focussed on the desired future character and that the controls in DCP 2011 seek for signage to be compatible with the host building and on any impact from the proposal on the significance of the HCA.
11. By reference to DCP 2011, Mr Eastman notes that the 'core period of heritage significance is 1890-1940' (cl 8.2.30.6 pf DCP 2011). On his submission, this makes the Ramsay Catalogue, utilised by Mr Phillips more directly applicable, if such a document is required to assist in the application of the DCP controls to an assessment of the proposed development.
12. Mr Eastman concludes that there is no evidence before the Court that the proposed signage is inconsistent with the existing or desired future character or that the proposed signage is incompatible with the existing building. He emphasises that in relation to whether what is proposed is acceptable these questions are the focus of the Court's assessment.
13. Mr Eastman submits that the requirement for installation of window displays in selected windows is onerous and not supported by the controls in DCP 2011. Further, he argues that if the condition requiring displays aims to create street activation this is satisfactorily achieved by being able to see into and out of the store.
14. In relation to the splay windows, Mr Eastman discounts the evidence of Mr Richardson. He notes that Mr Richardson argues that the absence of signage on these windows is required due to Control C12 of 2.12.3 which requires a maximum of 60% of the window surface to be 'painted signs'. Mr Eastman argues that on Mr Hammond's evidence this control does not apply and further if it does apply there is no evidence before the Court to establish any non-compliance with the control or any merit grounds on which these windows should be absent of signage.
15. Mr Eastman concludes that no evidence before the Court establishes that the proposed signage is either inconsistent with the existing character of the locality, its desired future character or that the proposed signage design is detrimental to the building. Thus, on his submission, the proposed development is consistent with the objective of SEPP 64 to ensure that signage is compatible with the desired amenity and visual character of an area, as well as being consistent with the specific assessment criteria at Schedule 1 of SEPP 64. Mr Eastman submits that the Court would conclude the precondition in SEPP 64 is met.

Findings

1. In considering the evidence of the experts, I note that on close examination the architectural plans in Exhibit B are not consistent with the final evidence of the experts. I note: 1. The experts agree that the odd numbered window panes on the New Canterbury Road and Dulwich Street are to contain imagery of tools or related products sold in the store. Currently, the elevations also include separate branding for Sydney Tools on these windows, example sign 3, 12 and 15. To give effect to the agreement of the experts in the joint report, with which I concur, the following condition is also to be imposed on the consent: "Signs 3, 12 and 15 shown on the plans approved in Condition 2 are to be deleted." 1. It is Mr Phillips' evidence that the use of Pantone Red is acceptable as the majority of the fascia is painted dark grey (Exhibit 2). 1. This is inconsistent with the architectural elevations in Exhibit B for which consent is sought. In the current plans, the extent of awning that is grey relates only to a section of the awning on Lewisham Street. 2. The predominant extent of the fascia that will be visible in the public domain is of the proposed Pantone Red colour. 3. I have considered this discrepancy in giving weight to Mr Phillips evidence on the acceptability of the colour proposed.
2. I accept the submissions of Mr Eastman that the first issue for the Court is the satisfaction of the precondition at cl 8 of SEPP 64 (refer to [12]).

Compatibility with the desired amenity and visual character of an area

1. Clause 8 of SEPP 64 requires the consent authority to be satisfied that the signage proposed is consistent with the objectives of the instrument. Relevantly objective 3(1)(a)(i) has an objective, in part, of ensuring that signage is compatible with the visual character of an area.
2. I accept Mr Eastman's submission that visual character encompasses both the existing and desired future character.
3. Applying the planning principle stated in Project Venture v Pittwater, I am satisfied that the Pantone Red signage, as detailed in the architectural plans, is not compatible with the existing visual character of the area due to the proposed extent and the boldness of the proposed colour hue. I am satisfied that the signage, as proposed by the applicant, would be jarring and unsympathetic to the locality.
4. Whilst the existing locality may contain this colour on other business signage I am satisfied on my observations onsite, and a review of Exhibit D, that the extent of the use of this tone of red proposed is uncharacteristic. The businesses within the visual catchment of the subject site have a materially smaller frontage in comparison with the subject site. This results the use of colour for these businesses that is smaller in proportion, but also in quantity, than that which is proposed by this application. I note that the Statement of Significance states that a principal characteristic of the commercial and retail developments within the HCA are there "narrow shop fronts and clearly defined structural bays providing physical evidence of the regularity of the underlying subdivision pattern" (Exhibit 3).
5. Further, given the comments at [71(2)], I have given Mr Phillip's evidence less weight on the basis that the development on which he formed a view of compatibility is not the scheme before the Court.
6. I accept the evidence of Mr Croft that the proposed Pantone Red is not compatible with the desired future character of the area and that it will detract from the visual character of the HCA. Further, I accept his evidence that this incompatibility is capable of being cured by the replacement of the proposed Pantone Red colour with Indian Red. I am persuaded that as an alternative Indian Red would achieve greater compatibility with the proximate buildings in the locality, would be more harmonious with the remaining buildings on the subject site and their greyscale colour scheme, and is of a tone that will be of lower contrast (less jarring) in the streetscape.
7. Given the planning controls applicable to the HCA, I am not persuaded that the lack of compatible with the existing character will be 'cured' by extensive future redevelopment within the visual catchment. This is because many of the controls seek to maintain the dominance of the existing character into the future.
8. In relation to the first issue in dispute between the parties, which colour red is appropriate for the signage design, based on the above reasoning I adopt the draft conditions of the Council as follows: "Fascia signage The red colour proposed for the fascia must be amended to the commercially available Indian Red as listed in Appendix A of Exterior Paint Colours, Technical Bulletin 1.2, by the Australian Council of National Trusts prior to the erection of the signage. The proposed fascia signage, including its colours (as amended by this Condition) must be erected in accordance with this Consent and may not be altered except in accordance with a separate approval of Council."
9. With the imposition of the above condition, I am satisfied that the proposed signage is compatible with the desired amenity and visual character of the area (cl 3(1)(a)(i) of SEPP 64).

Provides effective communication in suitable locations

1. Council does not contend that the signage proposed does not provide effective communication. However, the location of the signage and the distribution of the proposed window treatments are disputed by the parties.
2. The experts disagree as to the extent of windows which are permitted to include graphics of generic hardware products. In particular, there is disagreement as to the treatment of the splay windows.
3. Concerning the number of windows permitted to include graphics of generic hardware products, I accept the evidence of the experts in the joint report, as detailed at [45], notwithstanding the oral evidence of Mr Hammond that it was not his intention that these agreements included the splay windows.
4. I find that the splay windows to Dulwich Street and Lewisham Street, as identified in the extract of the elevation contained at [47], along with the windows shown as clear glazing on the architectural plans (Exhibit B), should remain clear glazing absent any signage. My reasoning is as follows:

• The entry to the Sydney Tools premises is off New Canterbury Road. It is consistent with assessment criteria 4 of SEPP 64 to reduce visual clutter by rationalising the signage provision to the street from which customers can gain entry to the premises.
• I accept the agreement of the experts that the retention of clear glazed windows makes a positive contribution to the streetscape by creating visual interest and an active street frontage.
• The two corner elevations of the site (the splay windows to Dulwich Street and Lewisham Street) are prominent in the streetscape of the locality being corners that define a street block. The primary use of the site overall is residential. I am satisfied the use of imagery or signage relating to Sydney Tools, or the heritage of the site, on the corner splays detracts from the view of the contributory building from within the HCA, and the visual quality of the HCA.

1. However, in relation to the treatment of the clear glazed windows, I am not persuaded by Mr Richardson's evidence that the provision of product display in these windows (and the splay windows) is required.
2. Whilst DCP 2011, at Part 2.1 and Part 5.1.4 seeks to ensure street activation, I am not persuaded this is solely achieved by the insertion of product displays in the shop windows. I am satisfied that views into and out of the premises, as well as the provision of historical images in a number of the windows to the street, will sufficiently achieve this intent.
3. I accept Mr Eastman's submissions in this regard and adopt the alternative wording of the applicant for condition 3(b).

• To give effect to the above findings Condition 3(b) is as follows: "Window Display Every odd numbered window pane on the New Canterbury Road elevation may contain imagery of tools or related products sold at the store, excluding specific branding, pricing or other product details. The window panes on the Dulwich Street elevation and Lewisham Street splay corners are to be retained as clear glazing. Those shop front windows not containing signage or imagery are to be retained as clear glazing and, with the exception of the side of shelves permitted along the walls forming the window bays; no shelving is to be placed so that it obscures views in and out of the shop."

1. With the imposition of the above condition, I am satisfied that the proposed signage provides effective communication in suitable locations.

High quality design and finish

1. I accept the agreement of the experts that the second area of dispute, whether the signage film is applied internally or externally, is capable of resolution with the imposition of the following agreed condition: "Window Display All window signage is to be opaque and fixed directly to the exterior of the shop front glazing. i. In the event of damage to the window signage, Council may require the replacement of the signage to Council's satisfaction within 28 days. ii. The condition of the window signage must be displayed and maintained to a reasonable standard. iii. Detail of the signage material and suitable protective coating must be submitted to and approved by Council prior to installation."
2. With the imposition of the above agreed condition, I am satisfied that the proposed signage will be of a high quality finish.

Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas?

1. Whilst not a heritage item, the proposed development is within a HCA. The Burra Charter 2013 (The Australia ICOMOS charter for the conservation of places of cultural significance). Relevantly, Article 8 of the Burra Charter states the following: "Conservation requires the maintenance of an appropriate visual setting: e.g., form, scale, colour, texture and materials. No new construction, demolition or modification which would adversely affect the setting should be allowed. Environmental intrusions which adversely affect appreciation or enjoyment of the place should be excluded."
2. This intent, and the importance of visual setting and colour, is reflected in the Council's DCP controls, as well as the assessment criteria in Schedule 1 of SEPP 64.
3. I reiterate my findings at [74]-[79] and [85] as being relevant to these criteria.
4. Further, I accept the evidence of Mr Croft that amendments to the proposed signage design are warranted to ameliorate the detrimental impact of the proposed development on the significance of the HCA. I am satisfied that the statement of significance for the HCA (refer to [21]) identifies that in part the significance of the HCA arises from its aesthetic qualities which arise in part from 'the consistency of the parapeted and enclosing street wall'. As can be seen from the photomontage at [44] and the elevations at [47], this street frontage of parapeted retail shops were retained in the redevelopment of the site to retain this significance.
5. I accept Mr Croft's evidence that the proposed Pantone Red will detract from the visual quality of the area and the HCA. My reasoning is as follows: 1. I am not persuaded by Mr Phillips' evidence that the statement of significance is inconsistent. In my reading of the statement of significance, the time period provided in the opening paragraph (1890-1938) addresses the entirety of the precinct. The second time period provided (mid to late 19th century) is a reference to retail streetscapes within the precinct. 2. In the context of my comments at [71], I am not persuaded by Mr Phillips' evidence of the appropriateness of the signage design proposed. 3. I accept the evidence of the heritage experts that at the relevant time of the HCA both tones of red similar to the Pantone Red proposed, and the alternative Indian Red was likely present in the HCA. 4. However, I am not persuaded by the evidence that their presence was as expansive or that the extent proposed by this application is appropriate. 5. I find that the Pantone Red signage design, as proposed, would intrude into the streetscape view, contrary to 8.2.30.5 of DCP 2011. 6. I am not persuaded by Mr Eastman's submissions that the presence of red signage within the IGA supermarket opposite, and newsagencies and another business in the vicinity, are of direct relevance. Relevantly the subject building is identified as a contributory item in the HCA in DCP 2011. This distinguishes the subject site from the IGA supermarket opposite, which is not identified as a contributory building.
6. Consistent with my preceding findings and the amended condition detailed at [80] I am satisfied that the alteration of the dominant colour in the signage to Indian Red is warranted. I am satisfied that following this amendment, along with the reduction in the scope of signage achieved by my concurrent findings at [88], the proposed signage will be compatible with the existing or desired future character of the area.
7. Finally, having considered the effect of the proposed development on the HCA, I am satisfied that the development as amended will not have a detrimental impact on the significance of the HCA: cl 5.10(4) LEP 2011.

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?

1. In considering the controls in DCP 2011 at 2.12: Signage and Advertising Structures I am satisfied that the proposed Pantone Red colour is not compatible with the colour scheme of the building to which it will be attached due to the boldness of its hue for the reasons given in the preceding.
2. However, with the additional and amended conditions proposed in this judgment, I am satisfied that the proposed signage will be compatible with the scale and proportion of the existing buildings on the subject site and will respect its important features.
3. On the preceding basis, I am satisfied that the precondition at cl 8 of SEPP 64 is met. Further, on the basis of a merit assessment pursuant to s 4.15 of the EPA Act I find that the application as amended by the annexed conditions warrants approval.

Costs

1. The Respondent seeks for the Court to make an order under s 8.15(3) of the EPA Act for those costs of the consent authority that have been thrown away as a result of an amendment of the application for development consent.
2. Section 8.15(3) of the EPA Act states: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
3. Section 8.15(3) is of essentially the same terms as the previous s 97B(1) and (2) of the EPA Act.
4. In Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 the then Senior Commissioner pointed out that for s 97B to be of effect, two steps are necessary: "Firstly, that the Court allows the applicant to file an amended development application. Secondly, that the amended development application not constitute 'a minor amendment'."
5. The first test was met during the proceedings by the grant of leave for the tender or amendment of the material generally detailed at [4].
6. A summary of the Court's consideration of what is a 'minor' amendment is detailed in the decision of Pepper, J in Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153 at [42] as follows: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]).
7. In applying the above principles to the current proceedings it is necessary to compare the relevant sets of architectural plans. Those relevant plans are Revision 3 of the Architectural Plans, granted leave by Notice of Motion on 30 August 2019 (Exhibit C) and the Revision 7 of the Architectural Plans for which leave was granted at the commencement of the hearing (Exhibit B)
8. Mr Cottom argues, by reference to the Affidavit of Mr Nicholas Sandstrom of 14 January 2020, that when viewed cumulatively the amendments made by the Applicant are more than minor. He notes that in addition to amendments to the Architectural plans, additional details have been provided. Further, that having formed the view that the changes are not minor the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application.
9. By contrast, Mr Eastman raises two points in support of his submission that the amendments made by the applicant are minor. Firstly that in the context of the application the changes to the signage design in the amended plans are insignificant, and secondly that these amendments were either the subject of the joint conference of the experts or arose from agreed evidence in the joint report.
10. Following consideration of the brief oral submissions of the parties and a review of the architectural plans for which leave was granted, I find the amendments to be minor. I am satisfied that: there are not a number of amendments, significant reassessment of the application was not required, the concept was not changed, new issues were not raised and the amendments were responsive to the issues raised by the experts.

Proceedings 2019/122451

1. The Court orders that: 1. The appeal is upheld. 2. No order as to costs. 3. Development consent is granted to DA201900068 for signage on the ground floor shopfront windows and awning fascia at 429 New Canterbury Road, Dulwich Hill subject to the conditions in Annexure A. 4. Exhibits are returned with the exception of Exhibits A, B, and 1.

Proceedings 2018/176935

1. With the consent of the parties, I make the following orders: 1. To the extent necessary, the appeal is upheld. 2. The development control order (ORD002055), given to the applicant by the respondent on or about 11 May 2018, is modified to the extent that its terms must be complied with within 90 days after the date in which the Court make final orders disposing of proceedings no. 2019/122451. 3. For the purposes of clarity, the above Order 2 does not require demolition of the existing facia board if the Court upholds the appeal in the proceedings referred to in that order and the development is completed in accordance with the associated development consent within the time referred to in that order.

Commissioner of the Court Proceedings 2019/122451 Annexure A (80.9 KB) 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: 19 February 2020