[2006] NSWCA 323
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319
[2001] NSWCA 270
Wehbe v Pittwater Council (2007) 156 LGERA 446
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCA 323
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319[2001] NSWCA 270
Wehbe v Pittwater Council (2007) 156 LGERA 446
Judgment (3 paragraphs)
[1]
The application should be granted on its merits
For the above reasons, and based on the evidence of Ms Wong and Mr Woodland, I am satisfied that the proposed wall advertisement is appropriate for the site and will activate the streetscape, given its location and urban context. In accordance with SEPP 64, I am also satisfied that the advertisement is consistent with the objectives of SEPP 64 and will not have an adverse impact. Similarly, I accept that through the Plan of Management the wall advertisement complies with cl 6.21 of the SLEP 2012 and exhibits design excellence. Given that it meets the principles for the Wynyard Park/Lang Park Special Character area, there is no basis to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties.
[2]
The final orders
The Court orders that:
1. The Applicant is granted leave to rely on the amended plans dated 24 September 2018, and referred to in condition 1 of Annexure A.
2. The appeal is upheld.
3. Development Application No. RD/2017/954/A for a painted advertising mural on the northern external wall of an existing single storey building at 4-6 York Street, Sydney, legally known as Lots 13, 14, 15 and Part 16, Section 1 in DP 939718, is approved subject to the conditions set out at Annexure A.
The Court notes the parties' agreement that, for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979, the amendments to the proposal are minor.
Commissioner Gray
Annexure A
[3]
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: 14 November 2018
Parties
Applicant/Plaintiff:
Apparition Media Pty Ltd
Respondent/Defendant:
The Council of the City of Sydney
Cases Cited (13)
Relevant Principles
The question of whether a provision is a development standard or a prohibition has been the subject of much judicial discourse. Central to that discourse is the two step approach of Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 ("Poynting"). The first step requires determination of whether the proposed development is prohibited under any circumstances by the relevant provision, where that provision is construed in the context of the instrument as a whole. The second step requires determination of whether the provision specifies a requirement or fixes a standard in relation to an aspect of the proposed development. In describing the first step, Giles JA considered that anything less than complete prohibition means that the development can take place. At [98]:
"Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided the relevant aspect of the development is identified the control will be by imposition of a development standard."
Giles JA also emphasised that the provision must be "seen as part of the environmental planning instrument as a whole" (at [94]).
In Laurence Browning Pty Ltd v Blue Mountains City Council [2006] NSWLEC 74, Jagot J articulated a summary of relevant legal principles drawn mostly from the decision in Poynting as to what constitutes a development standard. These principles have been adopted on a number of occasions, including by Tobias JA in the Court of Appeal in Residents Against Improper Development Inc and Another v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; [2006] NSWCA 323. Those principles are set out by Jagot J at [26]:
"(1) The provision in question must be "seen as part of the environmental planning instrument as a whole" (Poynting at 342 [94]). The "wider context" of the provision, as part of the instrument overall, should be considered in construing the provision (Lowy v The Land and Environment Court of NSW & Others (2002) 123 LGERA 179 at 182 - 183 [2] per Mason P).
(2) If a provision falls within one of the matters in sub-paras (a) to (o) of the definition of "development standard", that fact alone does not mean that the provision is thereby a development standard. The provision must be "in relation to the carrying out of development" and must fix requirements or standards in respect of an aspect of the development (Poynting at 333 -334 [58]).
(3) Although we must distinguish between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between "regulation" and "prohibition" cannot replace the definition in the EPA Act. As this conceptual division "will bring finely divided decisions", "care must be taken lest form govern rather than substance" (Poynting at 342 [93]).
(4) A provision that prohibits the development under any circumstances controls development, but is not a development standard (Poynting at 343 [96] and [98]).
(5) If the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then "in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development". (Poynting at 343 [98]) .
(6) It is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development (Woollahra Municipal Council v Carr (1985) 62 LGRA 263 a 269-270 per McHugh JA and Poynting at 343 [97]).
(7) An essential condition of the definition of "development standard" is that the "requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development" (Carr at 269 -270 per McHugh JA).
(8) Hence, the key consideration in any debate over this second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development. In this regard, the list of aspects of development in sub-paras (a) to (n) of the definition of "development standard" shows that "a broad view of what is an aspect of a development should be taken" (Poynting at 343 [99])."
The Parties Submissions
Apparition firstly relies on the decision of the Court in Adbooth Pty Ltd v Botany Bay City Council [2006] NSWLEC 710, in which Commissioner Hoffman considered that cl 22(2)(b) applied to the development, with which the proposed wall advertisement did not comply. Notwithstanding this, the Commissioner found that the objection to the development standard (lodged under the State Environmental Planning Policy No 1 - Development Standards) was well founded and that compliance with the standard was unreasonable and unnecessary. Apparition submits that this decision is authority for cl 22(2)(b) having been applied as a development standard, and for development consent having been granted for development even though it contravened that standard.
Secondly, Apparition submits that the development for which consent is sought, being a painted third party wall advertisement, is permissible in Zone B8 - Metropolitan Centre in the SLEP 2012. As such, consistent with the first step in the approach of Giles JA in Poynting, Apparition submits that the development is not prohibited.
Thirdly, Apparition submits that the fact that the development may only be carried out in the circumstances identified in cl 22 does not mean that the development is prohibited under any circumstances by reason of clause 22.
Fourthly, in considering the language of cl 22(2) and the context of the clause within SEPP 64, Apparition submits that cl 22(2)(b) does not seek to forbid the development of wall advertisements, but rather imposes controls that, in effect, provide criteria for the proportion of the wall or elevation that should be used. In support of this submission, Apparition relies on the reasoning of Robson J in Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153, in which His Honour considered that such controls "do not seek to forbid the development... but rather places standards and requirements" for the development (at [62]).
Fifthly, Apparition submits that the wording of cl 22(2) is distinct from that contained in cl 10 of SEPP 64. Clause 10 clearly imposes a prohibition by stating:
(1) Despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that, under an environmental planning instrument, is within any of the following zones or descriptions:
…
Apparition therefore submits that cl 10 of SEPP 64 identifies advertisements that are prohibited, whereas cl 22(2) does not.
Moving to the second step of the approach taken by Giles JA in Poynting, Apparition submits that cl 22(2)(b) clearly specifies a requirement or fixes a standard in relation to an aspect of the proposed development, and therefore falls within the definition of a development standard. Specifically, Apparition submits that each of the elements that form part of the definition of "development standards" are met, as the provision is in relation to the carrying out of development, specifies requirements concerning the percentage of the coverage of the above ground elevation, and relates to a number of the requirements or standards listed in definition contained in s 1.4 of the EPA Act.
The requirements to reach the state of satisfaction required by cl 4.6(4)
Consistent with the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for there to be power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:
The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)),
The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)),
The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), and
The proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)),
The state of satisfaction required by cl 4.6(4)(a) has been reached
I accept that each of these elements has been satisfied.
Firstly, the request establishes that compliance with the dimensional requirement of cl 22(2)(b)(iii) is unreasonable and unnecessary in circumstances where the larger advertising area facilitates the achievement of a substantially positive urban design impact "due to the artistic element of the hand painted nature of the proposed advertising mural as opposed to a standard or regular billboard type advertisement" (Ex B, Tab 3, cl 4.6 request p 5). The request establishes that, consistent with test 3 in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, compliance is unreasonable as it would defeat or thwart the underlying object or purpose of the standard expressed in the objectives of SEPP 64, as it would result in a significantly inferior urban design outcome with a sign of approximately 13.24m2, effectively resulting in less mural/street art space, and would have less of a positive visual impact on the building façade. As such, the request establishes that a strictly compliant scheme would not achieve the objectives of providing high quality signage and would not have adequate public benefit. In so establishing, I am satisfied that the request adequately demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case.
Secondly, the request adequately establishes sufficient environmental planning grounds to justify the contravention of the development standard. It does this by expressing that the contravention of the standard allows the advertisement to activate the streetscape, reinforce the urban room effect of the precinct as identified in the locality statement, enhance the terminating vista along York and Carrington Streets, and improve the visual outcome for the façade. It clearly establishes that, if there was no contravention, a compliant sign will be disproportionate in size to the existing elevation, resulting in a negative visual impact on the streetscape and adjoining public domain, therefore failing to achieve the activation of the streetscape, the reinforcement of the urban room effect and the enhancement of the terminating vista. I accept, therefore, that the request establishes sufficient environmental planning grounds to justify the departure from the requirement for there to be coverage of only 20% of the above ground elevation. The proposal, which seeks a coverage of 36%, is sufficiently justified by these environmental planning grounds.
Thirdly, I accept that the proposed wall advertisement is consistent with the objectives of the B8 Metropolitan Centre zone. The proposal activates the existing street frontage of the retail premises on the site, and contributes to the diversity of compatible land uses characteristic of the area and of Sydney's "global status".
The Council supports the submissions made on behalf of Apparition, and also submits that in considering cl 22(2)(b) within the context of SEPP 64 as a whole, it is not a prohibition but instead provides criteria to assist in determining the appropriate scale of the development.
Specifically, the Council firstly submits that the present proceedings can be distinguished from what was before the Court of Appeal in Woollahra Municipal Council v Carr (1985) 62 LGRA 263 and Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20. In Woollahra Municipal Council v Carr, the development was for professional consulting rooms for dentists, which were defined as rooms having a limit of 3 dentists. Accordingly, part of the description of the development of professional consulting rooms for dentists included the fact that they be restricted to no more than 3 dentists. As such, the development was permissible only if it met that definition. In Agostino v Penrith City Council, the Court of Appeal was dealing with an appeal from Pain J which related to a development for a fruit shop with a maximum floor area of 150m2. Pain J, with the Court of Appeal agreeing, considered that the area of the shop was part of the description of the development and so a breach of the floor area was a prohibition. Tobias JA agreed with this assessment and noted that the relevant development type, namely a fruit and vegetable store, was a prohibited use and the control was inserted as an exception to the general prohibition, so that it was only permissible if it did not exceed the maximum floor area.
The Council submits these cases are distinct from the present proceedings, where wall advertisements are permissible with consent and the definition of "wall advertisement" does not rely on the dimensional requirements. The Council points out that a wall advertisement remains a wall advertisement regardless of its size.
Secondly, the Council submits that it is not the case that wall advertisements that do not meet the dimensional requirements are prohibited in any circumstances. Clause 22(2A) allows for the display of a wall advertisement on transport corridor land that does not comply with the size limitations of Clause 22(2).
Thirdly, the Council submits that a consideration of the wider view of SEPP 64 and the context in which cl 22 operates provides for the dimensional characteristics in Clause 22(2)(b) to be development standards rather than prohibitions. The Council submits that SEPP 64, when looked at in its wider context, includes aims and objectives that include an aim to ensure that signage (including advertising) is compatible with the desired amenity and visual character of an area and to provide effective communication in suitable locations. The consent authority is also required, by virtue of cl 13, to consider the assessment criteria in Schedule 1. This criteria includes streetscape, setting or landscape and requires the consent authority to consider the scale, proportion and form of the proposal. A similar requirement appears in Schedule 1 Cl 5 in considering the compatibility of the proposal with the scale, proportion and other characteristics of the building.
Therefore, the Council submits that in considering the context, SEPP 64 seeks to control development rather than prohibit it. The assessment criteria in Schedule 1, together with the specific requirements in Division 3, appears to help the consent authority to address matters of significance that would help to ensure that the signage complies with the aims and objectives of cl 3 of SEPP 64.
Finally, the Council submits that in seeking to control development, the dimensional requirements of cl 22(2)(b) clearly fall within the definition of a development standard and are therefore amenable to a request pursuant to cl 4.6 for consent to be granted notwithstanding the breach of the development standard.
Fourthly, I accept that, where there are no specific objectives of cl 22(2), the appropriate objectives to consider are the stated objectives of SEPP 64. I accept that the proposal is consistent with those objectives, for all of the reasons outlined in the request, as follows (Ex B, Tab 3, cl 4.6 request p 13):
"• The proposal is consistent with the desired amenity and visual character of the area as it contributes to the 'urban room' identified in the Wynyard Park/Lang Park Special Character Area (section 2.1.9 of the Sydney Development Control Plan 2012 (DCP))
• The third party advertising will include an element of street art, creating a vibrant street frontage and maximising the efficient use of the blank facade
• The proposal enhances the terminating vistas of York Street and Carrington Street
• The subject site is an appropriate location for third party advertising due to high foot and vehicle traffic
• The exceedance of development standard will allow for a larger, more effective advertisement
• Future advertisements will be of high quality design and finish"
I accept those reasons, and on that basis I consider that the proposed wall advertisement is compatible with the desired amenity and visual character of the area, provides effective communication in a suitable location, and is of high quality design and finish. The proposal also provides for a time-limited consent, consistent with objective (1)(c) of SEPP 64.
For these reasons, the state of satisfaction required by cl 4.6(4)(a) has been reached and there is therefore power to grant development consent to the proposed development.