Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big... [2012] NSWLEC 1093 | Case summary

Consideration 41The parties' submissions were made on the basis that there are three elevations to the building, and that in the assessment of the signs, sign 10 in the DA appeal (sign 1 in the Building Certificate appeal) is to be included in the Longueville Road elevation, and sign 18 in the DA appeal (sign 5 in the Building Certificate appeal) is to be included in the Birdwood Avenue elevation. 42Signs 11,12, 14 and 18 are not included in the application for development consent, and were identified on the plans as "exempt". The applicant submits that signs 5, 7, and 9 in the DA appeal are also exempt development, applying cl 2.72A of the Codes SEPP. The applicant submits that those signs which are exempt development and not the subject of the development application can be considered in the context of the Building Certificate and Order appeals. The applicant submits that with the exception of signs 3 and 4, the signs are permissible under SEPP 64 and could be the subject of a building certificate. The applicant submits that the signs for which consent is sought or in respect of which a building certificate could be issued meet the applicable merits assessment criteria. The applicant submits that if the applicants are successful in all or part of the DA or Building Certificate appeals, the Order should be revoked or modified to require alteration of signs. In the alternative, the applicant submits that the Order is invalid because it is undated: the direction to carry out works within a period of 14 days from the order cannot properly be understood or complied with, and the requirement under s 121M to specify a "reasonable period" for compliance, which cannot be known on the current notice. 43In relation to the Building Certificate appeal the Council accepts that there are no issues of structural integrity or safety that need to be addressed. The Council submits that those signs which take the form of window print, and those signs that are prohibited, cannot be the subject of a building certificate, and there is no evidence on which to undertake a merits assessment in the Building Certificate appeal. The Council submits that none of the signs is exempt development, because they are not replacement of an existing business identification sign. In assessing the merits of the signs in the DA appeal, the Council submits that the planning controls have changed since the 1994 approval of Blockbuster signage, in particular by the introduction of SEPP 64. The signs do not meet the aim in cl 3(1)(a)(i), and do not meet the Schedule 1 assessment criteria. The window signs should be assessed by reference to the DCP, and the Council accepts that some of the signs are consistent with the 25 percent limitation. In relation to the Order appeal the Council submits that if the proper outcome is that the signage should be removed the Order can be modified. Exempt development 44In order to address the different issues raised in each of the appeals, the first step is to determine whether any of the proposed or existing signs is exempt development. 45The signs are not exempt development as defined in cl 33 of SEPP 64, and are not exempt development under Part 3 of the LEP. Clause 1.9 of the LEP does not exclude the operation of the Codes SEPP. In considering whether any of the signs are exempt development under the Codes SEPP, the applicant accepts, based on the agreed evidence of the planners, that signs 11 and 18 (signs 2 and 5 respectively in the Building Certificate appeal) are larger than the Blockbuster signs formerly in those locations. The applicant accepts that sign 14 (sign 4 in the Building Certificate appeal) is not a business identification sign. Accordingly, the applicant accepts that signs 11, 14 and 18 are not exempt development as defined in subdivision 36A of the Codes SEPP. 46The applicant submits that signs 5, 7, 9 and 12 are exempt development as they are business identification signs, replace Blockbuster's lawful business identification signs, and are no greater in size than the signs they replace. The applicant submits that cl 2.72A applies to the removal of one business identification sign to be replaced by another, and that is not restricted to a change of signs of a single business or by a requirement that there be a temporal connection for the removal and replacement. The council submits that the applicant has not established that the signs replace those approved for Blockbuster. 47Clause 2.72A of the Codes SEPP requires consideration of whether any or all of these signs is a "business identification sign". That term is not defined in the Codes SEPP. Clause 1.5(2) provides that a word or expression used in the Codes SEPP has the same meaning as it has in the Standard Instrument unless it is otherwise defined. The Dictionary to the Standard Instrument-Principal Local Environmental Plan defines the term as follows: business identification sign means a sign: (a) that indicates: (i) the name of the person or business, and (ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and (b) that may include the address of the premises or place and a logo or other symbol that identifies the business, but that does not contain any advertising relating to a person who does not carry on business at the premises or place. Note. Business identification signs are a type of signage-see the definition of that term in this Dictionary. 48That definition is similar to that in SEPP 64, but includes a reference to "or business" in (a)(i), refers to "the nature of the business" carried on in (a)(ii). While there are differences in wording, in my view they are not so significant as to suggest that the term should be given a different interpretation to the term "business identification sign" as used in SEPP 64. 49The submissions of the parties accepted the interpretation given to "business identification sign" as defined in SEPP 64 in Administration and Marketing Solutions Pty Ltd v Tamworth Regional Council [2011] NSWLEC 1343. Some of the signage at issue in those proceedings was the same as that under consideration in these proceedings, including signage that contained the words "Chemist Warehouse" and "Discount Chemist" in a stylised "house" shape: 51.In considering whether any of these signs is a "business identification sign", the starting point is the confirmation by the Court of Appeal in Bunnings [Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386] that the word "indicates" as used in the definition of business identification sign does not require the sign to explicitly state the two elements in (a). Applying the reasoning of Hodgson and Bryson JJA, words are not essential; however, the indication of the matters in (a)(i) and (ii) must be "relatively clear and concrete" (Bryson JA), and fulfil the function of making known the nominated matters (Pearlman AJA). ... 53 Sign 2 includes the words "Chemist Warehouse" in the stylised red "house" shape. In my view, the Council's submission that to meet (a)(i) of the definition of "business identification sign" a sign must state "Chemist Warehouse Tamworth" rather than "Chemist Warehouse" is contrary to the approach adopted by the Court of Appeal in Bunnings. The definition requires that the sign "indicates" the name of the person, rather than requiring that it be explicitly stated, either generally or in accordance with the requirements of the Business Names Act. The words "Chemist Warehouse" indicates the name of the name of the person as required by (a)(i), and the words "Discount Chemist" indicate the nature of the business as required by (a)(ii). I am satisfied that sign 2 indicates the name of the business, and the business carried on, and is a business identification sign. 50Applying that reasoning, I am satisfied that signs 5, 7, 9, 11, 12 and 18 in the DA appeal are business identification signs. 51In considering whether any are exempt development, cl 2.72A requires determination of whether they are the "replacement" of "an existing" sign, and cl 2.72B whether they replace a "lawful sign". The development consent granted in 1994 to Blockbuster for the erection of signage is in evidence (exhibit E). The plans show signs stating "Blockbuster Video" in the location of proposed signs 11 and 18 (as "torn ticket wall sign"), and in the location of proposed signs 12 and 14 (as "hamper signage to inside of colonnade"). The photographs in exhibit E show an additional "Blockbuster Video" sign on the Birdwood Avenue elevation below the parapet, and "Blockbuster" signs in the windows where proposed signs 15, 17 are located, and the windows along the Birdwood Lane elevation. It is not clear when these photographs were taken. The applicant submits that the Blockbuster consent should be construed liberally in respect of rights already granted pursuant to an existing consent. However, neither the plans (dated 9 October 1994) nor the conditions imposed on the approval granted by the Council to Blockbuster on 6 December 1994 include signs on the windows facing Birdwood Lane, and there is no evidence before me that would support a finding that the "Blockbuster Video" window signs appearing in the photographs attached to exhibit E were authorised. Based on the plans in exhibit E, I am satisfied that only the sign in the location of proposed sign 12 was a "lawful sign". 52The applicant submits that a purposive construction to the Codes SEPP read as a whole would not restrict a change of signage between a single business, or require that the temporal connection for removal and replacement be immediate. In considering whether cl 2.72A requires that a replacement sign be one for the same business, and that replacement be contemporaneous, as submitted by the council, I have had regard to the aims of the Codes SEPP as stated in cl 1.3 which are "to provide streamlined assessment processes for development that complies with specified development standards by" among other things, "identifying, in the General Exempt Development Code, types of development that are of minimal environmental impact that may be carried out without the need for development consent". 53I am not persuaded that cl 2.72A should be read as broadly as contended by the applicant. The requirement that there be a replacement of an "existing" sign or the content of such a sign indicates that a close temporal connection between removal and replacement is envisaged. Such an interpretation would be consistent with the function of the Codes SEPP in facilitating development of minimal environmental impact. A delay between the removal of one sign and the erection of another would not necessarily promote that aim in a context where the surrounding streetscape or land uses, or planning controls, may have changed in the intervening period. 54The evidence as to timing of replacement of the signage is in the form of an email sent from the Senior Property Manager of AMS to the council on 8 December 2010 (p1, exhibit 4) in response to the notice of intention to issue an order, which states: ... I must say I am a little perplexed as the signage erected is directly replacing previously erected signage by the previous tenant, Blockbuster Video. It is also within the area allocated to us by the Landlord for the purposes of erecting our signage/corporate livery. I have spoken to the signage contractor and he confirms that there is definitely an outline of a previous Blockbuster sign on the splayed parapet. Attached are images supplied by the landlord's agent highlighting the areas that are assigned to our tenancy for signage as well as depicting previous erected signage facing Birdwood Avenue. I reiterate that we have only replaced previously erected signage and painted the highlighted areas in our corporate colours and, I might add, have not identified any painting controls, thus don't understand why there should be any issue. ... 55The evidence before me does not support a finding that there was a close temporal connection between removal of the Blockbuster signs and the erection of the Chemist Warehouse signs: rather, the reference in the email of 8 December 2010 to there being an "outline of a previous Blockbuster sign", and to "previously erected signage" supports the conclusion that there was period where there was no signage. That is still the position in relation to proposed sign 12. I am not satisfied that the erection of the Chemist Warehouse signs was a replacement of an "existing" sign or signs. This conclusion makes it unnecessary to decide whether cl 2.72A requires that a replacement sign be one for the same business. 56I am not satisfied that any of the proposed or existing signs are exempt development. There are two signs presently on the building which are not included in the DA appeal and which are included in the Building Certificate appeal. Whether those signs, being sign 2 in the Building Certificate appeal (sign 11 in the DA appeal) and sign 5 in the Building Certificate appeal (sign 18 in the DA appeal), should remain will depend on the determination of the Building Certificate appeal and the appeal against the Order. DA appeal 57It is appropriate to consider first the appeal against refusal of development application D168/11. The expert planning evidence was directed to the issues raised in that application. If consent is granted to that development application, some of the issues in the other two appeals will not need to be addressed. 58SEPP 64, and the DCP, applies to the assessment of the 14 signs that form part of the development application. The assessment criteria to be applied under SEPP 64 are those in cl 8, or cl 13, depending on the characterisation of the particular sign. Clauses 8 and 13 both refer to the objective in cl 3(1)(a) and the assessment criteria in Schedule 1, although in slightly different terms. Both assessment pathways require that the signage be consistent with the objectives of SEPP64 in cl 3(1)(a). In relation to the assessment criteria in Sch 1, cl 8 requires that signage satisfy those criteria, and cl 13 requires that the signage be assessed in accordance with those criteria and the consent authority be satisfied that it is acceptable in terms of its impacts. Signage considered under Part 3 must also satisfy any relevant requirements of SEPP 64. 59Part 3 applies to all signage to which SEPP 64 applies, other than business identification signs, building identification signs, exempt development, and signage on vehicles. The parties in these proceedings accepted the reasoning I adopted in Tamworth on the application of the definition of "business identification sign" to the Chemist Warehouse signs that were the subject of those proceedings. For the reasons discussed in Tamworth at [51]-[53], quoted above, I am satisfied that signs 2, 5, 7, 9, 10, 15, and 17, which all contain the words "Chemist Warehouse Discount Chemist" are business identification signs. At [71] in Tamworth I concluded that signs which when read together stated "Chemist Warehouse Australia's Cheapest Chemist" contained the matters specified in paragraph (a) of the definition, and I am satisfied that signs 1 and 13 in these proceedings which contain the same words are business identification signs. 60Signs 3, 4, 6, 8, 14, and 16 contain additional words, "Up to 50% off prescriptions", "Never beaten on price", and "up to 85% off fragrances". At [60]-[63] in Tamworth I considered the evidence then before me as to the words, colours and style of signs used by Chemist Warehouse, and concluded that the words as used in proposed signs 3, 4, 6, 8, 14 and 16 were not a "logo or other symbol that identifies the business" as permitted in (b) of the definition of "business identification sign". At [78] I concluded that a sign stating "Chemist Warehouse Discount Chemist Up to 50% off prescriptions" included the matters specified in (a) of the definition, however included words not authorised in the optional matters in (b), and was not a "business identification sign". The parties' submissions in these proceedings accepted this reasoning, and applying it to the signs that are the subject of these proceedings, signs 3, 4, 6, 8, 14 and 16 are not business identification signs. 61Signs 1, 2, 5, 7, 9, 10, 13, 15, and 17 are to be assessed in accordance with cl 8 of SEPP 64, and signs 3, 4, 6, 8, 14, and 16 are to be assessed under Part 3 of SEPP 64. The assessment requires consideration of the objective of SEPP64 in cl 3(1)(a), the assessment criteria in Sch 1, and in the case of some of the proposed signs, additional matters specified in Part 3 of SEPP 64. The provisions of the DCP are relevant in informing the assessment of the existing or desired future character of the area, and assessing the proposed signs in the context of their setting. 62I accept the evidence of Mr Sanders, which was consistent with the view, that the section of Longueville Road on which the building is located is a gateway into Lane Cove village centre from Epping Road. It was apparent from the view that the intersection with Birdwood Avenue is heavily used by traffic proceeding both along Longueville Road and turning the corner into Birdwood Avenue. There is a large public carpark at the rear of the building accessed from Birdwood Avenue, and an arcade leading from Birdwood Lane through to Longueville Road. I accept the evidence of Mr Caladine that this carpark will be used by persons that the business is seeking to attract. There are a number of vacant shops in the immediate vicinity of the building. 63Considering first the Longueville Road elevation, the only sign proposed is sign 10, which is an illuminated lightbox on the corner of Birdwood Avenue, and which is already in place. I agree with Mr Caladine that sign 10 provides effective communication to persons passing along Longueville Road, and that its location on the splayed corner of the building assists in identifying the start of the ramp leading to the entry to the business. To that extent it is consistent with the aim in cl 3(1)(a)(ii) of SEPP 64. However, I am not persuaded that it is consistent with the aim in cl 3(1)(a)(i), or that it satisfies the Schedule 1 assessment criterion that its scale, proportion and form are appropriate for the streetscape, setting or landscape. Sign 10 is significantly larger than the existing signs for Flight Centre and Subway which are also visible at the corner location, and the contrast with the bright yellow background paint means that it dominates the corner position and the building itself. I accept Mr Sanders' evidence that this sign is out of scale with the building particularly when compared with the existing parapet signage for the other tenancies in the building. Based on the view, and the photographs in exhibit D, this sign is more dominant than signage on other buildings in the locality. The scale and proportion of this sign is not appropriate for the setting, and accordingly does not satisfy the Schedule 1 assessment criteria as required by cl 8 of SEPP 64. It is not consistent with the objective in the DCP at 3.2 that it complements the building form and contributes to the streetscape. However, if reduced in size it would be consistent with the aims in cl 3(1)(a)(i) and (ii) and satisfy the Schedule 1 assessment criteria relating to character of the area, streetscape, and site and building. There was no issue raised as to the illumination of this sign. 64The Birdwood Avenue elevation includes proposed signs 2, 3, 13, 15, 16, and 17. Signs 11 and 18 are not included in the DA appeal, and are to be considered in the Building Certificate appeal. Signs 2, 13, 15 and 17 are business identification signs, to be assessed in accordance with cl 8 of SEPP 64. Signs 3 and 16 are to be assessed under Part 3 of SEPP 64. 65Signs 15, 16, 17, 2 and 3 are window print. Mr Caladine's evidence was that the window signage is primarily relevant for security reasons to screen shelving and various types of pharmaceutical goods and medicines while at the same time providing advertising exposure. Given the height of that part of the building where these signs are to be located, I am not persuaded that they fulfil a security function. They do provide communication consistent with objective 3(1)(a)(ii). However, I am not satisfied that these signs, because of the number and repetition of content, are consistent with the Sch 1 assessment criteria that the proposal "reduce clutter" by rationalising and simplifying existing advertising, that it be appropriate in scale proportion or form for the streetscape and setting, and that the signs contribute to the visual interest of the streetscape and setting. Part 3.1.1 of the DCP includes the objective of minimising visual clutter, and its restriction of coverage to 25 percent of the area of a shop window fronting a public area or visible from a public area should be read in the context of that objective, and the objective of allowing users to see into shops. If either sign 11 or 18 remains or sign 13 is approved, none of these signs contributes to effective communication. To the extent that any screening function is required, that can, as acknowledged by Mr Caladine, be achieved through the use of a bland vinyl adhesive that would also enable natural light to enter the building. 66Sign 13 is on the parapet, and Mr Sanders' evidence was that the proposed signs on the parapet (being signs 1, 10, 11, 13 and 18) are out of scale with the building. Further, sign 13 extends over columnar elements on the building facades which define the scale and proportion of the façade and does not respect the architectural features of the building. Mr Caladine's evidence was that the building design is poor in relation to the character of the other buildings in the area, and that sign 13 provides communication and is consistent with the council's previous approval of Blockbuster signage. I agree with Mr Sanders that the scale and proportion of sign 13 is dominant. If signs 11 and 18 remain, I am not satisfied that sign 13 provides effective communication. Sign 13 extends across two sections of the parapet and covers the intervening part of the column, which is one of the elements that breaks up the façade of the building. This extension across one of the architectural features of the building means that sign 13 is not, as sought by Part 2.9 of the DCP, integrated into the architectural design of the building. Based on the view and the photographs in exhibit D, that is not consistent with the signage in the immediate locality. I am not satisfied that sign 13 meets the Schedule 1 assessment criteria that it be appropriate for the streetscape, setting or landscape, and that it be compatible with the scape, proportion and characteristics of the building. If signs 11 and 18 are removed, I accept that a business identification sign, reduced in size and contained within one section of the parapet, would be appropriate in this location. 67The Birdwood Lane elevation includes signs 1, 4, 5, 6, 7, 8, and 9. I accept the evidence of Mr Caladine that a function of the signage on this elevation is to inform, and attract, customers who park in the public car park. Given the height of the building facing Birdwood Lane, I do not accept that the window signs 4, 5, 6, 7, 8, and 9 perform a security function. For the reasons applying to signs 2, 3, 15, 16 and 17, they do not minimise, but rather contribute to, clutter. I am not satisfied that signs 5, 7 or 9 satisfy the Sch 1 assessment criteria relating to streetscape, setting or landscape, and I am not satisfied that the impact of signs 4, 6, or 8 is acceptable. Mr Sanders' evidence relating to sign 1 was to the same effect as that for sign 13. I am not persuaded that the impacts are as significant as those identified for sign 13, in the context of the greater height of the building at the Birdwood Lane elevation and its location adjoining the car park. However, it does extend over and obscure the architectural features of the building. The approval of Blockbuster signage in this location in 1994 does not warrant approval of new signage in the context of different planning controls, in particular the detailed assessment criteria introduced by SEPP 64, and the detailed provisions in the DCP made in conjunction with SEPP 64. In the absence of signs 4, 5, 6, 7, 8 and 9, and their replacement by bland vinyl adhesive as suggested by Mr Caladine, I am satisfied that sign 1 does provide effective communication in a suitable location, and if reduced in size and contained within one section of the parapet would not be inconsistent with the Sch 1 assessment criteria relating to character of the area; streetscape, setting or landscape; and site and building. 68Having assessed the 14 signs proposed in the DA appeal, I am of the view that signs 1 and 10 can be approved if reduced in size as discussed above. Approval of sign 13, in a reduced form, depends on whether either of signs 11 and 18 remain. Building Certificate appeal 69Section 149D of the Act identifies the considerations relevant to the determination of an application for a building certificate: 149D Obligations of council to issue building certificate (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993: (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. (2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it. (3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate. (4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a). (5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work. 70The powers of the Court on appeal are those conferred by s 149F(3) of the Act: (3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 71In Ireland v Cessnock City Council (1999) 110 LGERA 311 at [37] Bignold J set out the relevant issues as being first, the structural adequacy of the building, and secondly, the probability of development consent being granted had such approval been sought. The latter consideration was described in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 at [58] as being consideration of a notional development application, which is an appropriate exercise for the Court to undertake in the exercise of the statutory discretion conferred by s 149G(3). 72These proceedings differ from those in Ireland and Taipan where in the former case there was a development application for prospective use of the shed the subject of the building certificate application, and in the latter where there was no separate development application under consideration. In Mineral Wealth Pty Ltd v Gosford City Council (2003) 127 LGERA 74 Pain J considered the approach to be adopted in proceedings concerning both a building certificate appeal and a development application appeal, and held that in the circumstances of that case it was appropriate to determine first the development application and then having been satisfied about the grant of development consent, to direct the issuing of the building certificate. In contrast to the circumstances of that case, in the present proceedings, the DA appeal includes only some of the existing signs. 73There was no dispute as to the structural adequacy of any of the signs. The council submits that there is limited evidence in undertaking a notional development assessment, other than by extrapolation from Mr Caladine's support of all the appeals. The applicant submits that assessment of the merits in both the DA appeal and the Building Certificate appeal is similar, relying on Mr Sanders' acknowledgement in oral evidence that the issues are effectively the same. I agree with the applicant that there is sufficient evidence to undertake the notional development application assessment required in the Building Certificate appeal, in the form of Mr Caladine's evidence on the acceptability of all the signage by reference to the SEPP 64 and DCP criteria, and Mr Sanders' acceptance that both appeals raise similar merits issues. 74Signs 3 and 8 in the Building Certificate appeal are weathertex, and read "Is this Australia's Cheapest Chemist". Neither sign is a business identification sign, and each is a wall advertisement as defined in SEPP64. Clause 22(1)(g) of SEPP 64 prohibits a wall advertisement on an elevation where there is a business identification sign. Signs 2 and 5 are business identification signs. In APN Outdoor (Trading) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1131 Dixon C considered the authorities and concluded that s149F does not confer power to direct the council to issue a building certificate in circumstances where the development is prohibited. The parties in these proceedings accepted this reasoning. If sign 2 is permitted to remain by the issuing of a building certificate, or a modified version of it is approved in the DA appeal, sign 3 is prohibited and, applying APN, cannot be the subject of a building certificate. Similarly, for the Birdwood Lane elevation, if sign 5 is permitted to remain, sign 8 is prohibited and cannot be the subject of a building certificate. 75Signs 2 (sign 11 in the DA appeal) and 5 (sign 18 in the DA appeal) are business identification signs. Both are illuminated. Both are located in a triangular section of the building parapet. Based on the view, sign 2 becomes visible from that part of Longueville Road near the Longueville Hotel to those travelling along Longueville Road from Epping Road. For reasons the same as those expressed in relation to sign 10, I am of the view that this sign is out of scale with the building particularly when compared with the existing parapet signage for Subway on this elevation. The scale and proportion of this sign is not appropriate for the setting or the characteristics of the building, and accordingly it does not satisfy the Schedule 1 assessment criteria relating to character of the area and streetscape, setting or landscape, and site and building as required by cl 8 of SEPP 64. I am not satisfied that in its present form it would be appropriate to direct the issuing of a building certificate for it to remain. 76Sign 5 is located on the splayed corner of the building, and based on the view is visible from the northern end of the car park and along Birdwood Avenue. As is the case for sign 2, and sign 10 in the DA appeal, in scale and form it dominates that section of the building. However, given the height of the building at this location and the angle of the splay corner, an appropriately dimensioned sign would be consistent with the objective in cl 3(1)(a). 77Signs 6, 7 and 9 are window print, described in the application as "self adhesive vinyl". The Council submits that these signs cannot be the subject of a building certificate; the applicant submits that if something falls within the definition of "development" and development consent can be granted, a building certificate can be issued. 78The provisions relating to the issuing of a building certificate are contained in Part 8 of the Act. Section 149D(1) provides that the Council must issue a building certificate if it appears that the matters specified in s 149D(1)(a) and (b) are satisfied. The effect of a building certificate is relevantly to prevent the Council from making an order under the Act or the Local Government Act 1993 "requiring the building to be repaired, demolished, altered, added to or rebuilt" in relation to matters existing or occurring before the date of issue of the certificate (s 149E(1)(a)), or for a period of seven years from the date of issue of the building certificate in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear (s 149E(2)(a)). 79The term "building" is defined in s4 of the Act: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure. 80The definitions in s 4 of the Act distinguish between an "advertisement" and an "advertising structure", the former being a sign, notice, device or representation in the nature of an advertisement, and the latter being the structure used or to be used principally for the display of an advertisement. The definition of "signage" in the LEP incorporates both elements. The window film advertisements in signs 6, 7 and 9 fall within that definition and are permissible with consent under the LEP. However, I do not accept the applicant's submission that it necessarily follows that because advertisements are a form of development controlled under the LEP they can be the subject of an application for a building certificate. The definition of "development" in s 4 is broad, and includes the use, or subdivision, of land, and any act matter or thing referred to in s 26 controlled under an environmental planning instrument, which includes s 26(1)(g) "controlling advertisements". The focus of the building certificate provisions in Part 8 is primarily on physical or structural works, in particular in the reference in s 149D(1) to the building being "demolished, altered, added to or rebuilt", and the similar references in s 149E(1) relating to the effect of a building certificate. Ireland, Taipan and Mineral Wealth concerned a farm shed, a boatshed, and a shed used for storage of bottles used in water bottling, respectively, and can be distinguished from the signage in the forms of signs 6, 7 and 9 in these proceedings. I am not persuaded that the power conferred on the Court by s 149F(3) of the Act extends to authorising the issue of a building certificate to window film. 81If I am wrong in that conclusion, and the discretion extends to signs 6, 7 and 9, the second part of the consideration in Ireland remains. The competing messages, colours and design of these signs are cluttered, and visually dominate the corner of the building. None of these signs is a business identification sign. The number, and location of the signs does not contribute to the restrained, co-ordinated approach to signage reflected in the General Signage Controls at Part N.3 of the DCP. If there is power to issue a building certificate to enable these signs to remain, I am not satisfied that it would be appropriate to do so. The appeal against the refusal of the building certificate should be dismissed.

Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council

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