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[2025] NSWLEC 1335
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-14
Espinosa C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Apparition Media Pty Ltd v City of Sydney Council [2025] NSWLEC 1335
Hearing dates: Conciliation conference on 9 May 2025
Date of orders: 14 May 2025
Decision date: 14 May 2025
Jurisdiction: Class 1
Before: Espinosa C
Decision: The Court orders:
(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Council’s costs thrown away as a result of the amendments made in the sum of $2,000 as agreed within 28 days from the date of these orders being made.
(2) The appeal is upheld.
(3) Development application RD/2023/969/A for the installation of hand painted signage on the ground floor of the Eastern elevation of 88-108 William Street, Woolloomooloo is determined by the grant of consent, subject to the conditions set out in Annexure A.
Catchwords: DEVELOPMENT APPEAL – advertising signage – wall sign - conciliation conference – agreement between the parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16, 8.7
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 35B, 37, 38
State Environmental Planning Policy (Industry and Employment) 2021, ss 3.6, 3.16, 3.20, Ch 3
Sydney Local Environmental Plan 2012, cl 4.6, 5.10, 6.21C
Category: Principal judgment
Parties: Apparition Media Pty Ltd (Applicant)
City of Sydney Council (Respondent)
Representation: Counsel:
B Bourke (Solicitor)(Applicant)
J Mort (Solicitor)(Respondent)
Solicitors:
Colin Biggers Paisley (Applicant)
City of Sydney Council (Respondent)
File Number(s): 2024/459396
Publication restriction: Nil
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application RD/2023/969/A seeking consent for the installation of third party advertising signage (Proposed Development) at 88-108 William Street, Woolloomooloo legally described as SP45499 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 9 May 2025. I presided over the conciliation conference.
The parties agree that the contentions raised in the SOFAC have been resolved through:
the relocation of the mural site onto another-wall of the building;
amended material referred to at [23];
Clause 4.6 variation request dated 15 April 2025 (Clause 4.6 Request); and
agreed conditions of consent.
The key features of the Proposed Development are set out in the Amended Statement of Environmental Effects prepared by GLN Planning Consulting Strategy dated 7 March 2025 (SEE) at p 4 as follows:
Total display area of approximately 26m2;
Advertising mural located at ground level (Palmer Street);
The advertising mural will be hand painted and non-illuminated;
Contents of the mural will change approximately once per month;
Dedication of the advertising space to community purposes on a regular basis (equivalent to approximately one month per year);
15 year duration of consent.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of Ch 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) regarding the advertising and signage and cl 4.6 of the Sydney Local Environmental Plan 2012 (SLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the court.
The Proposed Development was notified by the Respondent and no submissions were received.
The Site is located within the MU1 Mixed Use Zone pursuant to the SLEP and the Site is not listed as a heritage item and it is not located within a heritage conversation area: cl 5.10, SLEP.
Prior to granting consent to display signage, s 3.6 of the Industry and Employment SEPP requires that the consent authority, in this case the Court, must be satisfied as follows:
(a) that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and
(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5.
is compatible with the desired amenity and visual character of an area, and
provides effective communication in suitable locations, and
is of high quality design and finish.
The parties agree that the proposed signage meets these objectives and in relation to the high-quality design and finish, they rely on the Clause 4.6 Request and the Addendum Statement of Environmental Effects dated 15 April 2025 to satisfy this provision.
As the Proposed Development is a wall advertisement, the development standards set out in s 3.20 of the Industry and Employment SEPP must be complied with. All of the requirements of s 3.20 apart from s 3.20(2)(g) are met by the proposed signage.
The Applicant relies on a Written Request pursuant to cl 4.6 of the SLEP to justify the contravention of the development standard in s 3.20(2)(g) of the Industry and Employment SEPP which relates to a building identification sign or business identification sign not being displayed on the building elevation. The Written Request explains at p 2 that:
“given that the proposed development is an “advertisement mural”, the wall advertisement development standard applies and would require the Applicant to potentially remove two pre-existing signs on the façade under clause [sic] 2(g).”
“Relevantly, there are two pre-existing signs on the eastern façade, being:
A parking sign on the eastern side of Palmer Street, on the top of a pole (traffic/wayfinding sign); and
A small business sign on the eastern side of Palmer Street (business identification sign).”
I am satisfied that the Proposed Development will be the only advertisement.
The Court is satisfied that the applicant’s Written Request seeking to justify the contravention of the development standard in s 3.20(g) of the Industry and Employment SEPP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SLEP.
Transport for New South Wales has advised in correspondence dated 28 March 2025 that concurrence has been granted in accordance with s 3.16 of the Industry and Employment SEPP, and recommended that the following requirement be included in any consent issued:
"The proposed signage shall be installed be in accordance with the Transport Corridor Outdoor Advertising and Signage Guidelines 2017 and relevant Australian Standards."
This has been included as Condition 10 in the proposed Conditions of Consent.
The parties have addressed the terms of cl 6.21C of the SLEP regarding design excellence and they agree that the revised scheme achieves a higher standard of architectural design and protects the existing materiality of the building, as required by cl 6.21C Design Excellence of the SLEP. I note that cl 6.21C of the SLEP appears within Part 6 of the SLEP which is titled “Local Provisions – height and floor space” and it is my view that cl 6.21C is not applicable to the Proposed Development which relates only to advertising signage on an external wall to an existing building. However, to the extent that the terms of cl 6.21C of the SLEP may apply to the Proposed Development, I am satisfied that the Proposed Development exhibits design excellence for the reasons set out by the parties addressing the subclauses of cl 6.21C of the SLEP as follows:
“(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved.
The relocation of the mural signage from the western facade to the eastern facade provides a more sympathetic fit with the architecture and detailing on the eastern elevation.
The application of a self-adhesive vinyl canvas to the tiled facade prior to painting ensures lasting protection to the fabric of the building from potential paint residue/ leaching during the lifetime of application.
The western elevation remains intact, without disruption to the architectural uniformity.
(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain.
The area nominated on the eastern facade extends from immediately below the window and utilises the tile base within the last alcove to cover a total area of 26sqm. 27.5 The ground level architecture on the eastern facade is considered more fragmented than the western facade, with a greater mixture of materials including glazing, tiling and render.
The addition of mural signage in this location would result in an enhanced architectural 'fit' for the streetscape, and the building, and is considered to be a more appropriate location for the addition of signage.
(c) whether the proposed development detrimentally impacts on view corridors.
No obstruction to existing view corridors would occur from the proposed signage.
(d) how the proposed development addresses the following matters-
(i) the suitability of the land for development.
The facade fronts a highly trafficked classified road. The site does not have any heritage designation and is appropriate for the proposed development.
(ii) the existing and proposed uses and use mix
The area on the western facade utilised for the mural signage would be in situ with the retention hotel use of the site, The development is considered compatible in the revised location.
(iii) any heritage issues and streetscape constraints.
The site does not fall within a designated heritage area.
(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form.
No physical structures are proposed for this development.
(v) the bulk, massing and modulation of buildings.
No physical structures are proposed for this development.
(vi) street frontage heights.
No physical structures are proposed for this development.
(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity.
No physical structures are proposed for this development.
(viii) the achievement of the principles of ecologically sustainable development.
The proposed development is limited in time and would not conflict with the principles of ecologically sustainable development.
(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network.
No physical structures are proposed for this development.
(x) the impact on, and any proposed improvements to, the public domain.
No physical structures are proposed for this development.
(xi) the impact on any special character area.
The site does not fall within a special character area.
(xii) achieving appropriate interfaces at ground level between the building and the public domain.
The signage does not detract from the adjoining commercial uses and will add visual 'artistic' interest within the public realm.
(xiii) excellence and integration of landscape design.
No landscaping is proposed as part of the proposal. No pruning works are required to the existing street tree in proximity to the area dedicated for signage.”
I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.
As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes that:
Pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (the EPA Regulation) the applicant applied to the respondent consent authority for an amendment to Development Application No RD/2023/969/A (the Development Application), in the following respects:
(a) the inclusion of architectural drawings prepared by Rob Pickett Design in replacement of corresponding earlier drawings as follows:
| Drawing No. | Title | Date | | A01 | Site Plan | 15 April, 2025 | | A02 | South and East Elevations | 15 April, 2025 |
(b) the inclusion of an Addendum to the Statement of Environmental Effects prepared by GLN Planning dated 15 April, 2025; (c) the inclusion of a document pursuant to s 35B of the EPA Regulation prepared by Colin Biggers & Paisley dated 15 April, 2025 justifying a contravention of the development standard in s 3.20 of the State Environmental Planning Policy (Industry and Employment) 2021 pursuant to cl 4.6 of the SLEP; (d) the inclusion of a Plan of Management prepared by the Applicant on 14 March 2025; (e) the inclusion of a request for waiver of Signage Strategy prepared by Colin Biggers & Paisley dated 5 March, 2025.
The Court orders:
Pursuant to section 8.15(3) of the of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Council’s costs thrown away as a result of the amendments made in the sum of $2,000 as agreed within 28 days from the date of these orders being made.
The appeal is upheld.
Development application RD/2023/969/A for the installation of hand painted signage on the ground floor of the Eastern elevation of 88-108 William Street, Woolloomooloo is determined by the grant of consent, subject to the conditions set out in Annexure A.
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Annexure A (176 KB, pdf)
POM (9.96 MB, pdf)
Plans (705 KB, pdf)
Apparition Media Pty Ltd
City of Sydney Council [2025] NSWLEC 1335