APN Outdoor (Trading) Pty Ltd v Council of the City of Sydney

Findings 36Section 149F does not explicitly authorize the issue of a building certificate where the council has issued an order and the development is prohibited. Furthermore, the parties agree that there is no authority in support of the issue of a building certificate, in circumstances where the development is prohibited and the Council has issued an order requiring its removal. 37The decisions of the Court in Ireland (No1) and Ireland (No2), Taipan and South Sydney CC v Nettlefold Advertising Pty Ltd [1999] NSWLEC 21 can be distinguished on their facts. The Court did not deal with prohibited development. 38In this appeal, the sign is prohibited under cl 21 of the current LEP and while permissible under the draft LEP, (if it is gazetted in its present form) would be prohibited by cl6 and cl 10 of SEPP 64 because the site is within a heritage/conservation area and thereby prohibited by SEPP64. I do not accept on the authorities cited and the evidence before me that the discretion under s 149F extends to the issue of a building certificate in circumstances where the development is prohibited. 39I do not accept, as submitted by both parties, that the discretion considered by the Court in Sedevcic concerning an appeal under s 124 in class 4 proceedings is the same as that available to the Court in an appeal under s 149F in circumstances where the development is prohibited. There is no authority before me which says as much. 40Therefore, I am of the opinion that the Court does not have jurisdiction to issue the building certificate because the sign is prohibited development and the appeal must be dismissed. 41Having said that, if I am wrong in confining my discretion to the issue of a building certificate, in circumstances where the development is permissible, I have also considered the circumstances and environmental impacts of the sign. An approach, which the Court adopted in Ireland, Tiapan and Mineral Wealth. I accept as discussed by the Court in Ireland at [69] that in the exercise of my discretion under s149F I may have regard to environmental impacts of the development, the objects of the EPA Act, the public policy and the other matter listed therein. 42Based on my assessment of those matters and the evidence in this appeal I have decided not to exercise my discretion to direct the issue of a building certificate for the following reasons. 43The planners; Ms Bindon for the applicant, and Mr Quinn for the respondent, in their joint report which is exhibit C, agree that the development is prohibited under the LEP. Furthermore, they agree the desired future character of the area is identified in Leichhardt DCP 2000 (at Pt A10.4.5, subs 3, pa A161) and that the site is also identified as part of the "St Phillips Commercial Area" which is described at p A159 of the DCP. 44Having regard to that context, Mr Quinn is of the opinion that the sign is visually obtrusive and detracts from the appearance of the streetscape and; therefore; is inconsistent with cl 15 - Heritage Conservation Objectives and cl 16 (8) - Conservation Areas of Leichhardt LEP 2000. I accept his evidence because it was confirmed by the Court's view. 45I cannot accept Ms Bindon's assessment of the environmental impacts of the sign in its locality. She is of the opinion that the sign has no visual impact from within the conservation area, except for the limited views from the buildings opposite on Bridge Road. She describes its impact on the road as "benign in the streetscape and within the context of this visually commercial urban environment." (para 41-42 exhibit A). The view by the Court did not confirm this evidence. 46The heritage experts in their joint report (which is exhibit D) also have different views about the predominant character of the Glebe conservation area. Mr Staas considers that the site is surrounded by commercial development and each business is heavily signed - including the adjacent motor repair business and commercial building opposite in Bridge Road. In his assessment, the desired future character identified in the LEP is for intensification of the commercial use and the infilling of the vacant site. He says these objectives were formed at a time when the sign was in existence and formed part of the existing physical and visual character of the area. When the DCP was adopted the sign existed. It is Mr Staas' evidence that " the sign demonstrates far less visual clutter than road and directional signs in the context. It reads as a single isolated element in the long view of the Bridge Road and its well designed in relation to its location and relation with the host building " at p 4 of exhibit D. 47Mr Poulton, council's planner, is of the opinion that the sign bears no relationship with the surrounding area. It is not an identification sign or a necessary directional sign; therefore, it is at odds with the objectives of the Leichhardt DCP and the City of Sydney DCP. His evidence is that "...The structure is not consistent with the style of the Victorian terrace to which it is attached and is a undesirable "entry marker to the historic suburb of Glebe". Mr Staas believes that the design being "vertical and centred on the facade of the building creates an acceptable and well resolved relationship with its host building" at p 5 of exhibit D. I prefer the evidence of Mr Poulton to that of Mr Staas. 48The sign has been in situ for some time. It is the subject of a lease, which expires on 1 May 2013 and there is an option for a further lease period. I accept, as the experts collectively agree, that the length of time that the sign has been erected on the land is of no relevance in this appeal. 49The view made plain the fact that Bridge Road is a busy road. It carries substantial volumes of traffic from the City and Broadway up to Glebe Point Road. The sign, which is large and backlit, is by reason of its size and position exposed to that large volume of traffic each day and night. Therefore, its environmental impact on the streetscape and the desired future character of the area is relevant to the Court's exercise of its discretion to direct the issue of a building certificate. 50After a consideration of the parties' submissions including: the factors identified as relevant in Ireland at [69] and Taipan ; and, after a view of the sign in its locality I accept the sign is at odds with the desired future character of the area as identified in Leichhardt DCP 2000. It is and will remain prohibited development. I accept the council's submission that there is an overriding public interest in preserving and maintaining the zoning and permissible uses prescribed by the planning scheme. Therefore, for the reasons outlined in this judgment I have decided not to direct the issue of a building certificate in this appeal. 51Accordingly, the Court Orders that: (1)The appeal is dismissed. (2)Application number BC/2010/93 for a building certificate under section 149D of the Environmental Planning and Assessment Act 1979 for an advertising sign located at 11 Bridge Road, Glebe is refused. (3)The exhibits are returned. Susan Dixon Commissioner of the Court 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: 25 May 2011

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