Administration and Marketing Solutions Pty Ltd v Tamworth Regional Council

Land and Environment Court (NSW)|2011-08-02

Judgment 1This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application 0235/2011 for the installation of 31 advertisements on three elevations of an existing building at 130-138 Peel Street Tamworth (the site). 2The site is Tenancies 2 and 3 in a single storey masonry building. The building has a frontage to Peel Street (to the east), Jewry Street (to the north) and Brewery Lane (to the west). Vehicular access to the site is provided from the Peel Street and Brewery Lane frontages. There is a separate detached building (Tenancy 1) on the other side of the driveway entrance from Peel Street which is occupied by "Spotlight", and an associated shared car parking area, which also services other retail premises at the rear on the Brewery Lane frontage. 3The building containing Tenancies 2 and 3 is identified as a Heritage Item under Tamworth Local Environmental Plan 1996. The surrounding land uses are a mix of commercial and residential uses, and include a number of other heritage items. 4The site is occupied by a pharmacy, and the development application sought approval for a total of 31 advertisements associated with "Chemist Warehouse", including five illuminated signs. The proposed signs were depicted on plans lodged with the development application, as annexed to these reasons. 5The issues between the parties are whether any of the proposed advertisements are prohibited, and whether on consideration of the merits approval for installation of some or all of the advertisements which are permissible should be granted.

Evidence 21The matter commenced on site as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented to my hearing and determining the matter and to the evidence from the view forming part of the evidence. 22Expert planning evidence was given by Mr Alan Caladine on behalf of the applicant and by Mr David Lewis on behalf of the respondent. Mr Caladine and Mr Patch gave evidence relating to how the proposed signs should be characterised for the purposes of SEPP 64 to address the Council's contention that 12 of the signs do not comply with cl 22 of SEPP 64 and a further two do not comply with cl 21, and cannot be approved. Their evidence also addressed the contentions relating to whether the proposed signs are consistent with the objectives of SEPP 64, whether the signs satisfy the assessment criteria in Schedule 1 of SEPP 64, and the assessment required by the LEP and the DCP. 23Expert evidence on heritage issues was given by Mr Greg Patch on behalf of the applicant, and by Ms Clare James on behalf of the respondent. Mr Patch and Ms James addressed the contentions relating to the Schedule 1 assessment criteria, in particular relating to the number, content and size of the signs and the use of primary colours and illumination of five of the proposed signs; the requirements of cl44 of the LEP; and the assessment criteria in the DCP. 24Mr Jack Gance, one of the founders of the Chemist Warehouse group of pharmacies, swore an affidavit and was cross-examined. The evidence of Mr Gance was that he and Mr Mario Verrocchi, the other founder of the Chemist Warehouse group of pharmacies, own the intellectual property in the brand name "Chemist Warehouse", which includes trademarks for the words and images "Is this Australia's Cheapest Chemist?", "Chemist Warehouse", "Chemist Warehouse Stop Paying Too Much", "Chemist Warehouse Discount Chemist", "Chemist Warehouse Lowest Price Guaranteed", and "Chemist Warehouse Discount Chemist Stop Paying Too Much!". They license the use of the Chemist Warehouse intellectual property rights to various proprietors operating businesses under the Chemist Warehouse branding. Administration and Marketing Solutions Pty Ltd, the applicant in these proceedings, provides administration and marketing services such as book-keeping, payroll, stock-taking, accounts payable, planning and development applications. The pharmacies operating under the Chemist Warehouse branding are not franchised, and are owned by registered pharmacists alone or in partnerships. There are 174 pharmacies across Australia that are members of the Chemist Warehouse group. 25At paragraph [10] of his affidavit Mr Gance states that he and Mr Verrocchi have since May 2002 by themselves or through the licensees, carried on throughout Australia the business of providing retail pharmacy services by reference to the Chemist Warehouse trade marks; a distinctive get-up which consists of a colour scheme of yellow, red, blue and white; signs and slogans including "Chemist Warehouse", "Discount Chemist", "Is this Australia's Cheapest Chemist?", "Stop Paying Too Much", "Up to 50% off prescriptions", "Never Beaten on Price", and "Lowest Price Guaranteed"; and a store image which includes yellow exterior, a colour scheme of bright yellow, red, blue and white, and use of signs. 26At paragraph [16] and following of his affidavit Mr Gance provides details of steps taken, including legal proceedings, against individuals or corporations that have carried on business by reference to the Chemist Warehouse intellectual property, get-up, signs or slogans without authority. 27In oral evidence Mr Gance stated that the proposed signs which were not subject to a trade mark, such as "85% off Fragrances", were indicative of the Chemist Warehouse operation and gave the public a clear idea of what the business did as opposed to the average pharmacy, and were part of the Chemist Warehouse intellectual property by virtue of the use of the distinctive get-up and arrangement.

Application of SEPP 64 28It was common ground that cl 6 is met and that SEPP 64 applies to the proposed signs. Part 3 of SEPP 64 imposes a number of prohibitions and controls. Four specified types of signs are excluded from those controls by cl 9, and Part 3 would not apply to any of the proposed signs that is a "business identification sign", a "building identification sign", or signage that is exempt development. It was common ground that the only basis on which any of the proposed signs would be exempt development would be if it met the definition of "commercial sign" for the purposes of Sch 5 of the LEP. Any proposed sign that is not a business identification sign, a building identification sign, or exempt development, would have to meet the requirements of Part 3 Div 3, relevantly the restrictions on wall advertisements in cl 22, and roof or sky advertisements in cl 21. Whether or not Part 3 applies to any of the signage, a merits assessment is required under cl 8 or cl 13 of SEPP 64.

Applicant's submissions 29The applicant submits that signs 2, 9,12, 27 and 32 are a business identification sign. Sign 12 contains the words "Chemist Warehouse"; and "Australia's Cheapest Chemist" is a logo of Chemist Warehouse. In relation to sign 32, based on the evidence of Mr Gance, the "50% off prescriptions" component of the sign is characterised as a logo. The definition provides that a business identification sign may include "a logo or other symbol that identifies the business". A symbol is both the words and how they are conveyed, by size, colour, font or shape, and the context, namely how those words are put together to be a symbol or logo. 30The applicant submits that signs 4, 7, 14 are a building identification sign. The term "Discount Chemist" when used on its own is a building identification sign, as that is how the Council has characterised sign 4. Given that "Discount Chemist" identifies the business, then based on the evidence of Mr Gance as to the slogans and images for which he has intellectual property and which he licenses, the "85% off fragrances" fits within the category of being a "logo or other symbol that identifies the business". The definition prohibits general advertising, however there is no prohibition on logos appearing in a building identification sign. 31The applicant submits that signs 25 and 26 in effect constitute one sign, which when read together for the purposes of the definition is a building identification sign. The same reasoning applies to signs 28 and 29, and 30 and 31. Signs 21 and 22 can also be read as one sign, and if so, for the same reasons as apply to sign 7, would be a building identification sign.

Respondent's submissions 32The Council submits that none of the proposed signs is a "business identification sign". A sign could be a business identification sign if it contained the description "Chemist Warehouse Tamworth", which is the registered business name for the retail pharmacy on the premises, rather than "Chemist Warehouse". The Council submits that s4 of the Business Names Act 2002 prohibits a person from carrying on a business under a business name unless the business name is registered in the name of that person, and that any attempt to carry on the business simply under the name of "Chemist Warehouse" is contrary to the Business Names Act . 33The Council accepts that the words "Discount Chemist" would satisfy (a)(ii) in the definition of business identification sign. The Council submits that the other words, including "Up to 50% off prescriptions", "Discount vitamins", "Up to 50% off fragrance packs", "Are we Australia's cheapest chemist" and "Never beaten on price" are at best position statements that do not fall within either of the limbs of the name of the business or the type of business required to enable a sign to be treated as a business identification. 34The Council submits that none of the signs comprise building identification signs. There is already a sign that identifies the building, and that is the sign embossed into the front of the building, being "Royal Standard Bottling Department". The sign "Chemist Warehouse" and the other words do not identify or name the building. Words such as "MLC Centre", and "AMP Building" are unique building identification signs, but the words "chemist warehouse" where the words are licensed to be used at numerous other locations around Australia and where there are numerous other uses of that term as registered business name they cannot be said to comprise a building identification sign. 35The Council submits that signs 9 and 27 fall within the definition of a "roof or sky advertisement", and that neither is permissible under cl 21 of SEPP 64.

Consideration 36The Court of Appeal considered the application of SEPP 64 in Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386, an appeal from the decision of Pain J in Bunnings Pty Ltd v Auburn Council [2003] NSWLEC 212 concerning signage proposed for a retail outlet for hardware and building supplies. The proposed signage was to be located on the eastern faade of the building, separated by a portico entrance area. The sign on the left hand side was a stylised wordmark showing the words "Bunnings Hardware". The sign to the right of the entrance was a hammer in a circle, and the words "Lowest prices are just the beginning..." in a stylised font. The issues in the appeal were whether there had been an error of law in the findings that the application under consideration was for two separate signs, and that the right hand sign was not a business identification sign. 37Pain J held that the proposed signage was two signs: 23. The issue which falls to me to determine, however, is not whether the message of the elements of the signage will be considered by a viewer as a single coherent whole but whether or not the physical elements are, in fact and at law, one sign or two within the definition of 'signage' in cl 4(1) of SEPP 64. It is entirely logical to conclude that the proposed signage is two physical signs. 38On appeal, Pearlman AJA held that the issue of whether what was proposed was one sign or two did not depend on any particular construction of SEPP 64, but rather is a question of fact, and that Pain J had not erred in law in reaching the conclusion that two separate signs were proposed. On the issue of whether there was one sign or two, Bryson JA held: 21 In view of some observations in the course of argument it seems desirable to say that it is not necessary that the physical elements which compose one sign should all be connected: they usually will be, but in concept several separated elements could compose one sign. There is no expression inconsistent with this in the judgment of Pain J. Her Honour's finding that the application relates to two separate signs was well warranted on the evidence and, as Pearlman AJA has shown, it is a finding of fact which is not open to appellate review. 39Hodgson JA held that the question of whether the whole of the relevant signage could be a "sign" can involve questions of law as well as fact, and that it would be an error of law to hold that the physical characteristics of an object or set of objects were necessarily conclusive for a determination whether or not they could constitute a sign. Hodgson JA considered whether the proposed signage was "a sign": 8...Certainly, the physical characteristics of the object or set of objects are important. In this case, the content of the relevant sign or signs is on one long wall, albeit a wall emphatically divided into two parts by an entrance portico. However, the whole wall has the same basic blue colour, and the characters and symbols on both parts of the wall are in the same red and white colours. There is expert evidence, not challenged, that the characters and symbols would be viewed as a single coherent whole. 9 What this single coherent whole does is, by the characters on the left part, explicitly identify the person carrying on the business, and one aspect of the business, namely that it is carried on in a warehouse; and then, by the symbols and characters on the right part, further identify the nature of the business as a hardware business (by the hammer symbol), and to reinforce the name by a logo and slogan quite widely recognised as associated with the name Bunnings. The right hand part also adds an advertising message about lowest prices and other unstated advantages. 10 The definition of "business identification sign" makes it clear that the sign may contain some advertising that does relate to the person who carries on business at the premises or place, at least so long as that advertising does not make it inappropriate to describe the sign as a sign that indicates the name of the person and the business carried on at the premises. 11 In my opinion, having regard to the coherence of the physical set-up and of the message, both parts of the signage are correctly considered as being "a sign" within the definition of business identification sign in SEPP64. 40It was common ground before Pain J that if the application was determined as being for two separate signs, the sign to the left of the portico entrance was a "business identification sign". In considering whether the sign on the right hand side of the entrance was a business identification sign, Pain J held that the word "and" at paragraph (a) of the definition of "business identification sign" should be read as being conjunctive, and concluded that: 36...a business identification sign under the definition in cl 4(1) of SEPP 64 must contain the name of the person and the nature of the business carried on at those premises to which the sign is affixed. It also follows that, in addition, such a sign may include optional elements which are those dealt with in (b) of the definition of this term. 41Pain J concluded that the separate right hand sign containing the hammer logo and the positioning statement was not a business identification sign. 42The Court of Appeal held that it was not necessary that signage "must contain" the nominated matters to be a "business identification sign". Pearlman AJA held: 51...I do not think that the word "indicates" and the words "must contain" are synonymous in the context of the definition of "business identification sign". To adopt the dictionary definition of the word "indicate", what is required to bring the sign within the definition of "business identification sign" is that the nominated matters be pointed out, pointed to, made known or shown. The nominated matters are not required to be contained (in the sense of explicitly stated) within the sign. 43Pearlman AJA concluded that while the right hand sign might indicate the business of selling hardware, it did not point out, point to, make known or show the name of the person, and was not a business identification sign. 44Hodgson JA held that the two matters specified in paragraph (a) of the definition could be indicated by a sign even though the sign does not actually contain them, and referred to survey evidence of recognition by potential customers of the business. Hodgson JA held: 18 In my opinion, the circumstance that the left-hand sign states the name of the person and implies the nature of the business does not prevent the right-hand sign also being a business identification sign. Plainly, there can be more than one business identification sign for one place of business. In some circumstances, the provision of one clear sign that directly indicates the person and the business could mean that another sign that coveys the same thing indirectly is not a sign that "indicates" these things, because these things are otherwise well and truly indicated. However, if considered independently the latter sign does indicate these things, in my opinion it will be disqualified from being a business identification sign only if it can reasonably be considered to have no identification role, either because any person who sees it would already have seen the other sign or for some other reason. In this case, at least if one accepts that these are two signs, one should accept that persons may see the right-hand sign and not the left-hand sign; and in any event, the hammer logo on the right-hand sign could be considered a clearer indication of the nature of the business than the word "warehouse". 45Bryson JA held: 23 In SEPP64 Pt.3 Advertisements has a broad application to "signage" to which cl.4 Definitions gives a very comprehensive meaning. By cl.9 four designated kinds of signs are excluded from the application of Pt.3 and the extensive prohibitions and controls which it imposes, including its comprehensive controls on advertisements. "Business identification sign" is one of the designated exceptions. In my opinion the context shows that in the definition of "business identification sign", "indicates" is used in a sense which is relatively precise: it cannot have been a purpose of cl.9 to create wide or indefinite exclusions from the scheme of control in Pt3, which would not be effective if the exclusions from it were wide. The purpose of the definition is to define the exception for signs identifying name and business, not to open a wide array of signage and advertising which is to be free from the detailed provisions of Pt.3. The indications of the name and the business of the person who carries on business at the place at which the sign is displayed must be relatively clear and concrete if they are to conform to the purpose for which the exclusion is made. The sign on the left hand side, with the words "Bunnings Warehouse" appears to me to exemplify what was intended. Words are not essential: there may be pictograms or other symbols which are so well known that they indicate the name and the business: but there can be few symbols which are so well known as to make an indication of the kind to which the definition of "business identification sign" refers. 46Bryson JA considered the survey evidence, concluding that the recognition of the symbol and text fell short of the indication that plain words would give, and did give, on the sign on the left hand side of the entrance. Bryson JA noted: 26 Symbols and slogans are very unlikely to give a sufficiently clear and concrete indication to make a sign quality as a "business identification sign" within the definition in cl.4(1). Express words are not the only way of indicating a name and a business and I see the possibility that a symbolic indication might be so widely understood as to fall within the definition. 47Bryson JA concluded: 27...The meaning of "indicates" which should be applied, requires a clear and concrete indication, and indications which are less direct and rely on known associations between logos, slogans or other symbols and an unstated name or business will rarely be so universally understood as to indicate the name and business within the meaning of the definition. 48The application the subject of these proceedings identified 31 numbered signs. Signs 1, 2, 4, 5, 17, 20 and 32 are described in the plans as being weathertex, to be affixed to the external masonry of the building. Signs 3, 6, 9, 18 and 27 are double sided internally illuminated lightboxes. Signs 7, 8, 19,11, 12, 13, 14, 15, 16, 21,2, 23, 24, 25, 26, 28, 29, 39, and 31 are window print. The Statement of Environmental Effects (SEE) notes (at p 8) that "some of the window signs have been doubled up in the numbers shown on the drawing table, reflecting top and bottom of the window signs". The applicant submits that while signs 11 and 12, 13 and 14, 15 and 16, 21 and 22, 23 and 24, 25 and 26, 28 and 29 and 30 and 31 are separated by the window framing, they should be read together. 49The Council's Statement of Facts and Contentions described signs 2, 3, 4, 5, 6, 10, 11, 13, 15, 16, 18, 21, 23, 24, 25, 28, and 30 as building identification signs, and signs 9 and 27 as roof advertisements, and contended that the remaining 12 signs are "wall advertisements" so that only one is permitted on each elevation of the building. The applicant's SEE identified the type of signage for each of the proposed signs, referring to some as "flush wall sign", and others as "window film sign". My consideration of how each of the proposed signs is to be treated under SEPP 64, including the issue of whether any of them fall within the prohibitions or restrictions contained in Part 3 of SEPP 64, must be undertaken by reference to the definitions in SEPP 64, as interpreted by the Court of Appeal in Bunnings , and not how each of the signs is described in the development application or SEE, or in the Council's assessment report and in its Statement of Facts and Contentions. Each elevation will be considered in turn. Building elevation A (Peel Steet frontage): signs 1, 2, 3, 4 50Signs 1, 2 and 4 are described in the SEE as flush wall signs, and are to be fixed to the masonry exterior wall of the building. 51In considering whether any of these signs is a "business identification sign", the starting point is the confirmation by the Court of Appeal in Bunnings 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). 52Sign 1 states "Up to 50% off prescriptions". The applicant submits that sign 1 contains a logo of the business and may meet (b) of the definition of a business identification sign, however accepts that it does not have sufficient description to meet (a), and as a consequence is a wall sign. Mr Caladine and Mr Lewis agreed that sign 1 is a wall advertisement. I agree that sign 1 does not meet (a) of the definition. It does not indicate, in the sense of providing the "clear and concrete indication" referred to by Bryson JA, or in the sense of making known, as referred to by Pearlman AJA, either the name of the person or the business carried on, and accordingly, sign 1 is not a business identification sign. Sign 1 is 1.8 m by 1.8 m and is not a "commercial sign" as defined in the LEP. Part 3 applies to sign 1. 53Sign 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. 54Sign 3 is an illuminated double sided fin sign projecting from the wall of the building, which states "Chemist Warehouse Discount Chemist". The content of this sign is the same as sign 2, and for the same reasons I am satisfied that it is a business identification sign. 55Sign 4 states "Discount Chemist". The applicant submits that sign 4 is a building identification sign. The definition of "building identification sign" is drafted in a similar way as that for "business identification sign", and requires first that the sign "identifies or names a building"; whether the sign also includes the other matters listed such as street number is optional. The frieze along the Peel Street frontage states "Royal Standard Bottling Department", and Mr Patch and Ms James agreed in oral evidence that the building is known as the Brewery building. I agree with Mr Lewis that sign 4 could be read as stating the nature of the business conducted within the building, which is one of the optional matters included in the definition. However, I agree with the Council that the words "Discount Chemist" do not identify or name the building, and in my view sign 4 is not a building identification sign. Nor does sign 4 indicate the name of the person, and accordingly it does not meet the requirements of (a) of the definition of business identification sign. 56Signs 2 and 3 are business identification signs, and permissible. Whether signs 2 and 3 should be approved depends on the assessment required by cl 8 of SEPP 64, below. Sign 1 and sign 4 are not excluded from Part 3 of SEPP 64, and each is a "wall advertisement" as defined. Clause 22 of SEPP 64 applies to wall advertisements, and provides that only one wall advertisement can be displayed per building elevation (cl 22(1)). Consent may be granted to a wall advertisement only if, inter alia, a building identification sign or business identification sign is not displayed on the building elevation (cl 22(2)(g)). Signs 1 and 4 are on the same elevation as that proposed for signs 2 and 3, and if either of those signs is approved on a merits assessment, cl 22(2)(g) would not permit either sign 1 or sign 4 to be approved. Building elevation B (Facing the carpark and Spotlight): signs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 57Sign 5 includes the word "Entry" on what would otherwise be a business identification sign. That word would not be one of the optional matters provided in (b) of the definition of business identification sign, and if (b) exhausts the matters that can be included, sign 5 is not a business identification sign. Sign 5 is a wall advertisement to which Part 3 applies. 58Sign 6 is an illuminated light box, under the awning, which states "Chemist Warehouse" and "Discount Chemist", and is a business identification sign. 59Sign 7 states "Discount Chemist" and "Up to 85% off fragrances". The applicant submits that sign 7 is a building identification sign. The applicant relies on the evidence of Mr Gance as to the slogans and images for which he has intellectual property and which he licenses, and submits that the words "Up to 85% off fragrances" is a logo or symbol that identifies the business, which would fall within the optional matters permitted in a building identification sign. The applicant submits that "symbol" is both the words used and how they are conveyed, such as size, colour, font, slant and shape, considered in their context, and that on that approach this does not advertise individual products for sale, but identifies what the business does. 60I am not persuaded that this is how sign 7 should be regarded. As noted above, I consider that the words "Discount Chemist" indicates the nature of the business, rather than identifying or naming the building in which it is carried on. The addition of the words "Up to 85% off fragrances" does not in my view go any further to identify or name the building. The Macquarie Dictionary defines "logo" to mean "a trademark or symbol designed to identify a company, organisation, etc", and "symbol" to mean

something used or regarded as standing for or representing something else; a material object representing something immaterial; an emblem, token, or sign.
a letter, figure, or other character or mark, or a combination of letters or the like, used to represent something: the algebraic symbol, x; the chemical symbol, Au.
something which expresses, through suggestion, an idea or mood which would otherwise remain inexpressible or incomprehensible; the meeting-point of many analogies. 61Having regard to these definitions, it is unlikely, in my view, that a statement such as "Up to 85% off fragrances" could be regarded as being a representation of something else, or as constituting a combination of letters used to represent something: it is a statement in words of some of the goods for sale at the premises and how the business is conducted, and would fall within the prohibited general advertising of products, goods or services. While it is proposed in the red and white combination of colours used by Chemist Warehouse, it is not included in the signs and slogans identified at paragraph 10(c) of Mr Gance's affidavit, or in the description of the Chemist Warehouse store image detailed at paragraph 10(d). At best it is, according to Mr Gance's evidence, indicative of the way in which the business is conducted in contrast to an average pharmacy. I am not persuaded that it is a "logo or other symbol that identifies the business" which would be one of the optional inclusions in either a building identification sign or a business identification sign. 62The same reasoning applies to sign 8. Sign 8 states "Chemist Warehouse" and "Never Beaten on Price!". While the latter statement is one of the seven signs or slogans included by Mr Gance in the list of Chemist Warehouse signs and slogans, it is not one of the trademarks listed at paragraph 8 in his affidavit. I accept that its content, colour and style are part of the intellectual property licensed by Mr Gance to Chemist Warehouse Tamworth, however that does not necessarily mean that it is a "symbol or logo that identifies the business", for the purposes of the definitions of building identification sign or business identification sign. It is a combination of words stating how the business is carried on. Sign 8 is not a building identification sign. 63I am not persuaded that the words "Never Beaten on Price" in sign 8 "indicates" the name of the business or the business carried on for the purposes of (a) of the definition of a business identification sign. Whether it has such an effect would depend on whether it is sufficiently distinctive to indicate those matters. While Bryson JA considered in Bunnings that there may be pictograms or other symbols that are so well known that they indicate the name and the business, that was not the case on the survey evidence before the court in Bunnings . While I accept the evidence of Mr Gance that a number of the signs proposed are part of the distinctive get-up licensed to proprietors using the Chemist Warehouse branding, there is no survey evidence as to recognition before me. I am not persuaded that this combination of words, even using a particular colour, font and style, is a "logo or other symbol that identifies the business". 64Signs 7 and 8 each provide part of the indication required to meet paragraph (a) of the definition of business identification sign, but not all. Both signs are larger than the maximum specified for a "commercial sign". Signs 7 and 8 are not business identification signs or otherwise excluded from Part 3. If signs 7 and 8 could be read together as constituting one sign, it would contain the elements required to meet (a) of the definition of "business identification sign", however the inclusion of "Up to 85% off fragrances" and "Never Beaten on Price" would not be included in the optional matters permitted in a business identification sign. Signs 7 and 8 fall within Part 3 of SEPP 64. 65However, I do not agree with the Council that they should be regarded as wall advertisements, and subject to cl 22. Both are proposed to be fixed, as window film, to windows. The definition of "wall advertisement" is restricted to an advertisement painted on, or fixed to, a wall. Clause 22(2)(e) provides that the consent authority may only grant consent if the advertisement "does not extend over a window or other opening", which would confirm a reading of the definition of wall advertisement that it is signage on a wall rather than any other part of a building. Adopting this approach would mean that signs 7 and 8 would not, by virtue of cl 22(2)(g), be prohibited if there is a business identification sign on this elevation, but would still be required to be assessed against the objectives in cl 3(1)(a) and the criteria in Schedule 1. However, if I am wrong on the interpretation of "wall advertisement" and it includes an advertisement fixed to a window, signs 7 and 8 would not be permissible if there is a business identification sign on this elevation. 66Sign 9 is an internally illuminated light box, to be erected on the roof of the building above the entrance adjoining the carpark, which includes the words "Chemist Warehouse" and "Discount Chemist". The applicant submits that this sign is a business identification sign and permissible. The Council submits that the sign is a roof or sky advertisement, and that it is not permissible under cl21 of SEPP 64. Clause 21(1) provides: 21 Roof or sky advertisements (1) The consent authority may grant consent to a roof or sky advertisement only if: (a) the consent authority is satisfied: (i) that the advertisement replaces one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed, or (ii) that the advertisement improves the finish and appearance of the building and the streetscape, and (b) the advertisement: (i) is no higher than the highest point of any part of the building that is above the building parapet (including that part of the building (if any) that houses any plant but excluding flag poles, aerials, masts and the like), and (ii) is no wider than any such part, and (c) a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct and the display of the advertisement is consistent with the development control plan. 67The expert planners were in agreement that sign 9 falls within the definition of "roof or sky advertisement", and that there is no development control plan prepared as specified in paragraph (c) of the definition. 68The content of sign 9 is the same as for sign 2, which I am satisfied is a "business identification sign". Sign 9 is to be erected on the roof, above the eaves of the building, and it falls within the definition of a "roof or sky advertisement". In determining whether sign 9 should be regarded as a business identification sign, and excluded from consideration under Part 3, or considered as a "roof or sky advertisement" which is separately defined in SEPP 64 and for which specific constraints apply in cl 21, the scheme of the SEPP is relevant. At [23] in Bunnings Bryson JA observed that Part 3 of the SEPP imposes extensive prohibitions and controls including comprehensive controls on advertisements, and that the scheme of control in Part 3 "would not be effective if the exclusions from it were wide". That discussion was in the context of applying the definition of "business identification sign", however in my view it is equally relevant to determining whether sign 9 should be considered as a business identification sign and assessed in accordance with cl 8, or be considered as a "roof or sky advertisement" so that it is assessed under Part 3 of SEPP 64, including the specific provisions in cl 21. The definition of business identification sign focuses on the content of the sign; the definition of "roof or sky advertisement" on its location. Clause 21 imposes additional criteria which must be satisfied before a consent authority can grant consent to a roof or sky advertisement, including whether the advertisement improves the visual amenity of the locality, and the finish and appearance of the building and streetscape. These provisions can be read as reflecting a concern that advertisements located on, or above, the parapet or eaves of a building would be more prominent, and potentially more obtrusive, than those located for example on a wall. Having regard to the scheme of SEPP 64, I consider that the location of sign 9 rather than its content is to be regarded as the relevant factor, and sign 9 should be considered on the basis that it is a "roof or sky advertisement". Clause 21(1)(c) is not satisfied, and consent could not be granted to sign 9. If I am wrong on that, and sign 9 should properly be excluded from consideration under Part 3 on the basis that it is a business identification sign, whether it should be approved would depend on its assessment under cl8 of SEPP 64. 69Sign 10 is a window film that reads "Entry", and measures 1700 x 450mm. If reduced in size, it would fall within (b)(iv) of the definition of "commercial sign" in the LEP and be exempt development. As presently proposed, it requires assessment under cl 8. 70Signs 11, 12, 13, 14, 15 and 16 are proposed as window print, and are numbered and dimensioned as separate signs in the development application. Mr Caladine's evidence was that these signs, and signs 21 to 26 and 28 to 31, are located on the windows for security reasons to screen the prescription medicines located within the rear storeroom of the building. Mr Caladine stated in the joint report that the proposed signs achieve the security objective, and serve a dual purpose in providing advertising for the chemist that is primarily visible from the internal car park. Signs 11, 13 and 15 measure1840 mm x 520 mm, and are located on the top glazed section of window. Signs 12 and 16 measure 1840 mm x 1420 mm, and sign 14 is 1840 x 2030; these three signs are located on the lower glazed section of window. 71The applicant submits that these signs should be read as three signs, rather than six separate signs. The Court of Appeal in Bunnings accepted that signs taking the form of separated elements can still constitute one "sign". It is not necessary that the physical elements are all connected, and the issue is whether they are viewed as a coherent whole. The photographs in Exhibit B, and the view, confirm that the metal framing of the windows is relatively narrow, and not readily discernible at a distance. I accept that these signs can be read as three signs, in particular because the content mirrors that proposed for what is clearly one sign in the form of signs 2, 3 and 9. Turning to the content, for the reasons stated in relation to sign 2, I am satisfied that signs 15 and 16 together are a business identification sign. Sign 12 states "Australia's Cheapest Chemist"; I am satisfied that that indicates the nature of the business and that signs 11 and 12 together are a business identification sign. 72Sign 14 states "Up to 50% off prescriptions". For the same reasoning as applied to signs 7 and 8, signs 13 and 14 read together would indicate part of the requirements of (a) in the definition of business identification sign, but not both, and "Up to 50% off prescriptions" could not be included. For the same reasons as apply to signs 7 and 8, if these signs are not a "wall advertisement" they would not be prohibited if there is a business identification sign on this elevation, but would still be required to be assessed against the objectives in cl 3(1)(a) and the criteria in Schedule 1. If I am wrong on that, and they are a wall advertisement, they could not be approved if there is a business identification sign on this elevation. 73Sign 17 states "Open 7 Days", and measures 1800 x 550 mm. It provides general information about the operation of the premises, and could, if reduced in size, fall within (b)(iv) of the definition of "commercial sign" in the LEP and be exempt development. As presently proposed, it is a wall advertisement and would not be permitted if there is a business identification sign on this elevation. Building elevation C (Facing the carpark and Brewery Lane): signs 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 74Sign 18 is a lightbox under the awning stating "Discount Chemist", measuring 2200 x 400mm. It is not a business identification sign, and is too large to be a commercial sign, and must be assessed under Part 3. 75Sign 20 states "Open 7 Days". The applicant accepts that it contains nothing that could be characterised as a business identification sign or a building identification sign because it does not contain any reference to "Chemist Warehouse"; however, it could by appropriate condition be reduced in size to 1.2 m x 0.6 m so that it would fall within the definition of "commercial sign" and be exempt development pursuant to the LEP 1996. In its proposed form, it is a wall advertisement and cannot be approved if there is a business identification sign on this elevation. 76The applicant submits that signs 21 and 22, 23 and 24, 25 and 26, 28 and 29, and 30 and 31, should be read as five, rather than 10 signs. These windows are similar to those on the side elevation, and for the same reasons I agree that these signs can be regarded as five signs. Signs 23 and 24 are a business identification sign. Signs 21 and 22 do not meet (a) of the definition of business identification sign. Signs 25 and 26, 28 and 29, and 30 and 31 provide part, but not both the elements in (a) of the definition. For the same reasons as apply to signs 7 and 8, if these signs are not a "wall advertisement" they would not be prohibited, but would still be required to be assessed against the objectives in cl 3(1)(a) and the criteria in Schedule 1. If I am wrong on that, and they are a wall advertisement, they could not be approved if there is a business identification sign on this elevation. 77Sign 27 is an illuminated lightbox on the roof stating "Chemist Warehouse Discount Chemist". In content it meets the definition of a business identification sign, however, for the reasons given in relation to sign 9, it should be assessed as a roof or sky advertisement, and would be prohibited by c 21. 78Sign 32 includes the matters specified in (a) of the definition of business identification sign, however includes "Up to 50% off prescriptions". That is not included in the optional matters in (b), and sign 32 is a wall advertisement. Conclusion 79On the Peel Street elevation, signs 2 and 3 are business identification signs, and are subject to assessment in accordance with cl 8 of SEPP 64. If either is approved, signs 1 and 4 cannot be approved. On building elevation B, signs 6, and 11 and 12, and 15 and 16, are business identification signs, and subject to assessment under cl 8. If any of these signs is approved, signs 5 and 17 cannot be approved. On building elevation C, signs 23 and 24 are business identification signs, and subject to assessment under cl 8. If either is approved, signs 20 and 32 cannot be approved. If the definition of "wall advertisement" is read to exclude an advertisement wholly contained on a window, signs 7 and 8, 10,13 and 14, 21 and 22, 25 and 26, 28 and 29, 30 and 31, are advertisements which are to be assessed in accordance with cl 13. If the definition has a broader meaning, these signs cannot be approved. Signs 9 and 27 cannot be approved.

Assessment under SEPP 64, the LEP, and the DCP 80In determining whether consent should be granted to those signs identified above as being capable of being approved, I note that both cl 8 and cl 13 of SEPP 64 direct attention to the objectives in cl3(1)(a) and the assessment criteria in Schedule 1, but in slightly different terms. Clause 8 requires that the consent authority must not grant consent unless it is satisfied that the signage is consistent with the objectives, and that it satisfies the assessment criteria in Schedule 1. Clause 13 requires that the consent authority must not grant consent unless the advertising is consistent with the objectives, and the consent authority has assessed it in accordance with the assessment criteria and is satisfied that the proposal is acceptable in terms of its impacts. 81Clause 7 of SEPP 64 provides that SEPP 64 prevails in the event of an inconsistency with another environmental planning instrument. Development consent is required under the LEP for advertising signage, and none of the proposed signs is exempt development under the LEP. In considering whether consent should be granted to those signs identified above as being capable of being approved under SEPP 64, the aims of the LEP and the objectives of the 3(a) Business zone must be taken into consideration. The evidence, and submissions, focussed on the requirements of the heritage provisions in the LEP, in particular cl 44 of the LEP which identifies a number of factors that must be taken into account, including the significance of the building as a heritage item, and the extent to which the carrying out of the development would affect the heritage significance of the building. 82The DCP provides additional matters to be considered, including design, colour scheme, and provides special requirements in cl 12 for historic buildings. 83The Council contends that the proposed advertisements are not consistent with the objectives of SEPP 64 as set out in cl 3(1)(a), on the basis that they are not compatible with the desired amenity and visual character of the area, are not in suitable locations and are not of high quality design and finishes. The Council contends that the proposed advertisements do not satisfy the assessment criteria in Schedule 1. In particular, the Council contends that the excessive number, repetitive content and size of the advertisements combined with the use of primary colours and the illumination of five advertisements will result in a development which is not compatible or consistent with the existing or desired future character of the area which contains a number of heritage items; will have a negative impact on the streetscape view setting and context of the area; will have a negative impact on the Peel Street and Jewry Street intersection which is considered to be a gateway to the Tamworth CBD and the Taminda Industrial area; is not compatible with the scale and proportion of the existing heritage building; will result in the appearance of the heritage building dominated by signage which conflicts with maintaining the prominence and contributory values of the building's architectural features; detracts from the visual interest of the heritage building and results in a cluttering effect of the advertisements on the front faade; does not demonstrate innovation and imagination in design; and has the potential to contribute to driver distraction at the intersection of Peel and Jewry Street. 84The Council contends that the proposal does not comply with cl 44 of the LEP because the excessive number, repetitive content, size and location of the proposed signs, combined with the use of primary colours and illumination of five of the advertisements, results in a detrimental impact on the heritage item. The Council contends that because of those concerns, the proposal does not satisfy the provisions of the DCP, in particular that it is not in scale with the surroundings, is a clutter of "add-ons" or "after thoughts", is not appropriate to the surrounds, does not complement the building, or integrate with the building's form and colouring, and dominates the building. 85The applicant submits that the proposed advertisements should be assessed in two separate categories, namely the Peel Street elevation, and the two elevations facing the carpark. In relation to the Peel Street elevation, the signage is needed to have a viable business, and locating the proposed signs on the pillars of the building is appropriate to achieve a balance without being out of character in the streetscape. The signage is effective because it attracts consumers. The public will have predominantly only the Peel Street elevation to recognise that the building houses a Chemist Warehouse, and the three signs cover at most 3 percent of the Peel Street facade. In relation to the other elevations, the windows are presently screened and would be obscured in any event, and the idea of the windows would not be lost. The applicant would accept a condition that the content of the window signage could not be changed without the consent of the Council. 86The applicant accepts that sign 1 could be changed to read as a building identification sign, and sign 20 could be reduced in size so as to be exempt development. More generally, the applicant submits that if certain signs are susceptible to modification or deletion the applicant would not oppose the court imposing a condition reflecting those findings. The background colour could be changed from a primary yellow to a manila or light yellow colour. Heritage evidence 87The Statement of Heritage Impact prepared by Mr Patch and provided with the development application noted (at p6) that the building, as the former Royal Standard (Brewery) Bottling Department, is a partial remnant of the brewery established in the latter half of the 19 th century and operated until the early 1920s. In oral evidence Mr Patch stated that the building is part of a complex that at one time employed up to 100 people, and is an important building with local association with the brewery. A large part of the complex was demolished in1936. The building was used for industrial purposes by Coco-Cola Amatil, and was refurbished in 2001 for the retail reuse of the site by Spotlight. 88Mr Patch's evidence was that the signage proposed to the Peel Street frontage relates to the pier panels of the faade in the case of the wall mounted signs, and is centred on an inter-arch panel in the case of the projecting wall sign. In his opinion the size and placement of the signs responds positively to the architectural composition of the facade and will serve to reinforce the rhythm of the piers and composition at street level. The design of the signs is simple with plain colours and simple graphics used. The signage to the other two walls is essentially internal to the site of the combined Spotlight, Farmer Bob's, Kays Meats and the Chemist Warehouse store, and here there is competition to attract attention with the majority of the signage largely out of view of Peel Street. In Mr Patch's opinion the signage proposed is reflective of the change in use from its historical industrial use to an essentially retail use. The signs located on the essentially internal facades of the building are to be located on elements of the building that are part of the early 21st century alterations and additions where the facade composition could best be described as utilitarian, and does no impose constraints on location and relationship to architectural features as is the case with the Peel Street facade. 89Mr Patch described the present colours of the building as simulating the "blood and bandages" scheme of the original building, being a deep red/brown and manila/pale biscuit/light stone. These are complex "tertiary" type colours, whereas the signage proposes the corporate essentially primary colours of yellow, red and blue with white or black lettering. The relationship of the signage to the building colours is one of contrast, though with some reference to the base colours. 90In Mr Patch's opinion the extent of signage is such that the salient stylistic architectural features of the building will remain appropriately legible and the original elements will still be able to be interpreted, appreciated and enjoyed. The proposed signage does not dominate the Peel Street facade, and that to the other two elevations is a response to the nature of the carpark area and to the practical matter of screening the dispensary. 91Ms James' evidence was that the area is the most important early industrial heritage precinct of Tamworth, and the other major structure in the vicinity of the site is the former Munro's Flour Mill, now the Tamworth Community College, which has minimal signage. The intent of enhancing the industrial character of the precinct is long standing as demonstrated through the conversion works undertaken for the Spotlight reuse of the site in 2001. In Ms James' opinion it is desirable that the industrial character of the contributory buildings in the vicinity of the site is enhanced by new development which is assisted by maintaining the design integrity of buildings and their detail. A signage scheme which allows the detail and finishes of the building to dominate is a priority, and a single sign to the street elevation (sign 2) with a colour amendment and a projecting sign (sign 3) which is designed to incorporate a stronger industrial character would be an effective outcome to preserve the integrity of the building's architecture. A sympathetic signage scheme should be subservient to maintain the ability of the details and finishes of the building to be enjoyed and interpreted and for them to remain prominent when viewing the building from public vantage points. In her opinion the use of multiple signs and in particular the yellow background colour draws attention away from the building's detail and character to the extent that the integrity of the facade through its conversion in 2001 is detrimentally impacted upon. 92In relation to the side and rear elevations, Ms James' evidence was that in the original design intent of the additions undertaken in 2001 attention was paid to window divisions of a vertical proportion, and to have defined head and sill heights in preference to curtain glass arrangement. In her opinion the ability to appreciate the openings as window elements, articulating the facades and providing some depth to the appearance of the building would be compromised through the use of the openings to apply signage, changing their design function. Ms James was of the opinion that no windows should be used for signage application. Ms James' evidence in relation to the 2001 additions was that the additions behind the original building were of a smaller scale and lower height than that of the original heritage item, and this was achieved by the hipped verandah and low parapet. The side elevation could reasonably accommodate two of the signs positioned on either side of the entry door/window unit, and on the rear elevation two signs could be wall mounted in addition to sign 32. Planning evidence 93Mr Caladine's evidence was that because the precinct is outside the main town centre and the flow of passing traffic is via customers in motor vehicles, advertising signage is important to Chemist Warehouse and other businesses in the area. The successful operation of Chemist Warehouse in this location depends on attracting attention and conveying a message about the type of business operating from the subject site, and Chemist Warehouse relies on being recognised through the provision of advertising signs to convey a message to customers of their location, the types of goods available for purchase, and that they are a discount chemist. There are a number of business premises within the visual catchment of the site that have many types and sizes of signs along their street frontages including some buildings that are heritage items. 94In relation to the Peel Street facade, the proposed three wall signs occupy an area of approximately 3 percent of the facade; the projecting sign is proposed to be illuminated to attract the eye of passing customers in motor vehicles. The proposed signs offer effective communication to passing customers and do not visually dominate the existing and future character of the area. The only other sign visible from Peel Street will be sign 5, and that will be by customers in motor vehicles heading in a general southerly direction into the Tamworth town centre. All the other signage is not primarily visible until after entering the car park, and the signs on the rear addition to the building are there to communicate to customers who enter the private car park to visit Spotlight or the other adjacent premises. 95In Mr Caladine's opinion, the signs satisfy the assessment criteria in Schedule 1. Because of the context of the site, neither existing nor desired future character of the precinct will be affected; the signs do not have any detrimental impact on the significance of the heritage item; there is no impact on views or vistas or interference with viewing rights of other advertisers; the signs are acceptable in terms of their form, scale and proportions; the signs on the street facade do not detract from the qualities of the building's built form and provide a positive contribution to the day and night time character of the area, and the side and rear elevation signs are not clearly visible from the street; the illuminated signs do not spill light outside their frames, and a curfew on the times the signs should be switched off could be dealt with as a condition of consent; and the signs will not reduce safety of any public road. 96In considering the provisions of the DCP, Mr Caladine's evidence was that the number of signs on the Peel Street facade are modest in total and do not detract from the heritage significance of the building, given that they respect the building's architectural design by being attached to the pier panels, and represent approximately 3 percent of the facade. Many of the signs on the windows of the rear addition could be combined to reduce the number of signs and allow them to be defined as building identification signs or business identification signs. The window signs provide advertising and also serve a security purpose. 97Mr Lewis was of the opinion that the proposed colours provide stark contrast to the colour scheme of the building and detract from the presentation of a fine example of industrial scale architecture in the locality. The number of signs also detracts from the architectural quality of the building by providing multiple messages and repetition of advertising material on all elevations. In his opinion the proposed signs do not satisfy the assessment criteria in Schedule 1 because of the excessive number, repetitive content and location of the advertisements. Those factors, combined with the use of primary colours and the illumination of a number of advertisements, will result in a development that is not compatible with the existing or desired future character of the area; will have a negative impact on the streetscape view, and a negative visual impact on the Peel Street and Jewry Street intersection; is not compatible with the scale and proportion of the existing heritage building; will result in the appearance of the heritage building dominated by signage; will result in a cluttering effect of advertisements on all facades; does not demonstrate innovation and imagination in design; and has the potential to contribute to driver distraction at the intersection of Peel and Jewry Streets. 98In relation to the required considerations under cl 44 of the LEP, Mr Lewis' evidence was that the proposed signs are of a scale, type, design, location, material, colour, style and illumination which are not compatible with the design and character of the building; dominate the elevations; are not designed and located sympathetically with the building; and use colours which are not sympathetic. In Mr Lewis' opinion, the DCP provisions seek to void excessive numbers of signs and repetition of content. The signage scheme proposed is not complementary to its host building or its surroundings, does not integrate with the building's form and colouring, and dominates the building instead of complimenting the architectural features of the building. Consideration 99It was common ground that the building is identified as a heritage item, in an area where there are other heritage items including Joe Maguire's Pub (146-148 Peel Street), a group of shops at 146 Peel Street, the former Square Man Hotel and Munro's Flour Mill (169-165 Peel Street). I accept the evidence of Mr Patch that the subject building and Munro's Flour Mill are of former industrial use, and that the subject building is of a similar presence and scale to Munro's Flour Mill. The area in which the subject building is located also includes late 20th/early 21st century development, including the Spotlight store and the Peel Valley Tiles & Ceramics building to the south at the corner of Bligh Street. In considering the expert heritage evidence, the applicant submitted that the evidence of Mr Patch should be preferred to that of Ms James, on the basis that Ms James has been involved as heritage advisor to the Council. I am satisfied that Ms James gave her evidence objectively, drawing on her understanding of the background to development in the locality and in particular to decisions made in relation to other buildings in the precinct. I accept the evidence of Ms James, which was agreed by Mr Patch, that the works undertaken in 2001 for the reuse of the site by Spotlight included research and interpretation through repainting of the original external appearance of the former Brewery building. 100It was common ground that the Peel Street facade of the building is the more important faade in considering the impact on the significance of the building as a heritage item. I agree that the appropriate way to approach the assessment required for those signs that are capable of being approved is that adopted in the expert evidence and in submissions, and to consider the Peel Street facade separately from the other two facades on the newer additions to the building. 101Turning first to the Peel Street frontage, the first issue to consider is whether the proposed signs are consistent with the objectives in cl 3(1)(a) of SEPP 64. The experts disagreed as to the compatibility of the proposed signs on the desired amenity and visual character of the area. It was common ground that while the site is not in a heritage conservation area, it is a heritage item in the vicinity of other heritage items. While the signage on some buildings in the vicinity, such as the former Munro's Mill, is restrained, that on other buildings such as the Peel Valley Tiles and Ceramics Building, is less so. I am satisfied that in its context, the location and content of the two business identification signs, namely signs 2 and 3, on the Peel Street facade would be consistent with the visual character of the area. I accept the evidence of Mr Caladine, which was confirmed on the view, that locating signs on the Peel Street facade, including the projecting wall sign (sign 3) would communicate effectively to motorists passing through the intersection or along Peel Street the nature of the business conducted in the building. 102Considering signs 2 and 3 against the assessment criteria in Schedule 1, in my view the most significant of those in this context are whether the scale, proportion and form of the signs is appropriate for the streetscape and setting; whether the proposal is compatible with the scale, proportion and other characteristics of the building, and respects important features of the building; the impact of the illumination of sign 3; and the impact on safety. I agree with Mr Lewis that the proposed colour scheme for signs 2 and 3 is a stark contrast to the colour scheme of the building, which Mr Patch accepts was intended to simulate that of the original building and was carried out based on investigative sampling and appropriate colour matching. I do not consider that it is compatible with that characteristic of the building. The applicant has indicated that it is prepared to change the background colour to be more consistent with the colour scheme of the building. I agree with Mr Lewis that location of four wall signs together with the projecting wall sign on Peel Street would dominate the appearance of the building and would not be compatible with the scale, proportion and characteristics of the building; however, limiting the signage to signs 2 and 3 would have less impact. I agree with Mr Caladine that the proposed illumination of sign 3 would not detract from the amenity of any residence, given the location of the building. Mr Caladine noted that it might be appropriate to require that the sign be switched off when the business is closed. I accept the evidence of Mr Lewis that a multiplicity of signs containing different messages has the potential to distract drivers, however I accept that if the signage on Peel Street is limited to signs 2 and 3 that is unlikely to occur. 103I am satisfied that limiting the signage on Peel Street to two signs, with a change in background colour to bring it closer to the colours on the facade, would not adversely affect the heritage significance of the site, in consideration of cl 44 of the LEP. I accept Mr Caladine's evidence that advertising signage is important for the successful operation of the business, and that its provision would be consistent with the objectives of the 3(a) zone. The limitation in number of signs, and the change in colour, would avoid the potential dominance of the facade by signage, and meet the objectives of clauses 10, 11 and 12 of the DCP. 104Signs 2 and 3 should be approved, subject to the requirement that the background colour be that proposed in the applicant's submissions. Approval of these signs means that signs 1 and 4 cannot be approved. 105Considering the signs proposed for the side and rear elevations of the building, the 2001 additions behind the original building are of a smaller scale and lower height than that of the original heritage item. I agree with Mr Patch that these facades are essentially internal to the site and largely out of view of Peel Street, and that the location facing the carpark and the adjoining retail uses provides competition to attract attention. I agree with Mr Lewis that the number of signs proposed for these elevations, the repetition of content, and the colours used, would dominate the building, and would not be compatible with the design of the 2001 additions in the context of the original building. 106Sign 6 is a business identification sign located underneath the awning, and provides information about the business in a location and style that is not incompatible with the heritage significance of the building. I am satisfied that it is compatible with the visual character of the area and provides effective communication in a suitable location, and is consistent with the objectives in cl 3(1)(a) of SEPP 64. It is appropriate in its setting and compatible with the characteristics of the site, and satisfies the assessment criteria in Schedule 1. Sign 6 should be approved. I am satisfied that the addition of a further two business identification signs on both the side and rear elevations would communicate to customers in the car park without providing the multiple messages and repetition that make the signage presently proposed for those elevations incompatible with the characteristics of the building. I accept that sign 5 fulfils a role in communicating the location of the business and the carpark for drivers approaching along Peel Street, and that this would be an appropriate location for one of the two business identification signs on the side elevation. If such a sign is located there, only one of 11 and 12, or 15 and 16, could be approved on this elevation. In relation to the rear elevation, I accept that sign 32 is an appropriate location for one of the business identification signs, as it informs drivers entering the carpark from Brewery Lane. Signs 23 and 24 could remain in the present location. 107Sign 18 is a lightbox suspended under the awning and visible from the rear of the building. It is not subject to any of the specific restrictions under Part 3 of SEPP 64, and is to be assessed under cl 13. I am satisfied that by reason of its size, content, and location, it is similar to sign 6, and should be approved for the same reasons. 108Signs 10, 17, 20 and the "Entry" part of sign 5 provide directions and information relevant to the functioning of the business in that context. Their location, colour and design is not incompatible with the building or the locality, and they provide effective communication. While signs 17 and 20 are wall advertisements and cannot be approved, I am satisfied that it would be appropriate to reduce their size so that they meet the definition of "commercial sign" in the LEP, and on that basis would be exempt development. Given the location of the entrance to the carpark on Peel Street I accept that it is appropriate to provide an "Entry" sign at that corner, which, if separated from the remainder of sign 5, and appropriately sized, would be exempt development. Sign 10 is window film, and if it is to be regarded as a wall advertisement could not be approved. It serves a purpose of identifying the entrance to the pharmacy, and is appropriate in its location, and should be reduced in size to meet the definition of "commercial sign". 109As noted above, signs 7, 8, 13 and 14, 21 and 22, 25 and 26, 28 and 29, 30 and 31 are window film. If they are to be regarded as wall advertisements they cannot be approved. If not, they are capable of being approved. However, considering the number, repetition of message, and the colours used, I am not satisfied that these signs would be compatible with the characteristics of the building as required in the assessment criteria in Schedule 1 of SEPP 64. They would dominate the building, and I agree with Mr Lewis that they would contribute to clutter, and not be consistent with the assessment criteria in cl9 of the DCP. While I accept that they serve a dual purpose of advertising the business and providing security, I am not satisfied that they should be approved. 110As noted above, I do not consider that the two roof advertisements (signs 9 and 27) can be approved. If I am wrong in that analysis, the signs would need to be considered in accordance with cl 8 of SEPP 64 and the LEP and DCP. The scale and location of both signs above the building is not appropriate in the context of the 2001 additions to the original building, and these signs would not satisfy the assessment criteria in Schedule 1 and should not be approved.

Conclusion 111For the reasons stated above, signs 1, 4, 5, 7, 8, 9, 10, 13, 14, 17, 20, 21, 22, 25, 26, 27, 28, 29, 30, 31 and 32 are not approved. Signs 2 and 3 can be approved with a modification of the background colour in accordance with the Council's proposed condition 5. I am satisfied that it would be appropriate for signs 10, 17, 20, and the "Entry" component of sign 5 to be altered so as to comply with the definition of "commercial sign" in Schedule 5 to the LEP. Signs 6, 18, 11 and 12, 15 and 16, and 23 and 24 can be approved. Sign 32 can be approved if altered to delete the words "Up to 50% off prescriptions". 112The issue of whether there should be a curfew for illumination of signs 3, 6 and 18 was not directly addressed in evidence, other than by Mr Caladine, or in submissions, and it is appropriate to provide an opportunity for the parties to consider their positions and provide submissions on this issue. I propose to make directions, in consultation with the parties, for the provision of conditions or amended plans that reflect these findings. Linda Pearson Commissioner of the Court PROPOSED SIGNAGE ELEVATIONS A and C PROPOSED SIGNAGE ELEVATION B

Amendments 08 December 2011 - Typographical error sign "2" changed to "3" Amended paragraphs: 112 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: 08 December 2011

(2004) 134 LGERA 386

At a glance

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Decision date

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Judgment (10 paragraphs)

Parties

Cases Cited (2)

Cited By (1)