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[2025] NSWLEC 1313
General information, not legal advice.
Land and Environment Court (NSW)
2025-05-08
Horton 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: BARR Property and Planning Pty Ltd v Tamworth Regional Council [2025] NSWLEC 1313
Hearing dates: 24-26 March 2025: Submissions 2 and 4 April 2025
Date of orders: 08 May 2025
Decision date: 08 May 2025
Jurisdiction: Class 1
Before: Horton C
Decision: The Court orders that:
(1) The Applicant is granted leave to rely upon amended plans and other documents subject to paying the Respondent’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.
(2) The appeal is upheld.
(3) Development application DA2023-146 for the erection of the digital advertising sign on the external façade fronting the corner of Peel Street and White Street, partial demolition of an existing wall, and construction of a new parapet, removal of existing signage and associated structural works is determined by the grant of development consent, subject to conditions of consent at Annexure A.
(4) Development consent is granted for the proposed works under s 138 of the Roads Act 1993.
(5) All exhibits are returned, except for Exhibit A, B, C, E, H, M and 8 and 9.
Catchwords: DEVELOPMENT APPLICATION: proposed signage structure and digital advertisement display – whether the signage is compatible with the desired amenity and visual character of the area – whether road safety is adversely affected
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 8.15
Land and environment Court Act 1979, s 39
Roads Act 1993, s 138
Environmental Planning and Assessment Regulation 2021, s 38
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, Pt 3.3, Div 2 and 3, ss 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 3.11, 3.12, 3.15, 3.16, 3.17, 3.19, 3.20, 3.22, Sch 1, 5
Tamworth Regional Local Environmental Plan 2010, cll 4.3, 4.4, 5.10, 7.11, Sch 5
Cases Cited: Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259
Redbank United Pty Ltd v Blue Mountains City Council [2024] NSWLEC 1615
Texts Cited: Austroads - Guide to Road Design
Guideline for landscape character and visual impact assessment – Environmental impact assessment practice note EIA-NO4 (December 2018), published by the NSW Roads and Maritime Services
Tamworth Regional Development Control Plan 2010
Transport Corridor Outdoor Advertising and Signage Guidelines Assessing Development Applications Under SEPP 64
Category: Principal judgment
Parties: Barr Property and Planning Pty Ltd (Applicant)
Tamworth Regional Council (Respondent)
Representation: Counsel:
M Seymour SC (Applicant)
C Koikas (Respondent)
Solicitors:
McKees Legal (Applicant)
Urban Legal (Respondent)
File Number(s): 2024/192018
Publication restriction: Nil
COMMISSIONER: A traffic roundabout stands at the intersection of Peel Street and White Street in the centre of the NSW city of Tamworth. The Tamworth Square Shopping Centre occupies one corner of that intersection, on which a digital sign is proposed to display advertising.
In addition to the digital sign and its supporting structure (the proposed Sign), the development also comprises the removal of existing signage, and the construction of a new parapet wall and other structural works.
The Proposed Sign is proposed to be essentially curved around the chamfered corner of the Tamworth Square Shopping Centre (the Shopping Centre), measuring 2100mm high and around 8000mm wide, and with an area of 16.8m2. A frame fixes the Sign to the Shopping Centre above an existing awning so that the Sign protrudes from the existing façade by a dimension that varies along its width.
The Proposed Sign is intended to display static content, changing at 10 second intervals, illuminated at a level that changes throughout the day.
To support the Sign, a new parapet wall is proposed to extend 1,150mm above the existing parapet.
Development application No. DA2023-146 which sought consent for the development so described was lodged by the Applicant in these proceedings, Barr Properties Pty Ltd, (Barr Properties) with Tamworth Regional Council (the Council) on 2 November 2022.
On 24 November 2023, the Council refused the development application. On 23 May 2024, Barr Properties filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
On the eve of the hearing, Barr Properties sought to amend the development application by Notice of Motion filed 21 March 2025, for which an adjournment was granted to permit the Council and its experts to consider the material contained therein.
Prior to the Court resuming, Barr Properties sought to further amend the development application by Notice of Motion filed 24 March 2025.
At the commencement of the second day, the Court granted Barr Property leave to rely on amended plans and other documents and made orders generally consistent with the Notices, including:
Architectural Plans, prepared by Skyline Architects (Rev C)
Design Excellence Review and Visual Impact Assessment, prepared by OG Urban dated 17 February 2025
Management and Maintenance Plan, prepared by oOH! Media dated 23 March 2025
Structural Adequacy Statement prepared by Lewis Consulting Structural Engineers, reference 24021-C01, dated 21 March 2025
Precautionary Clause 4.6 Variation Statement, prepared by Planning Ingenuity Reference M240165 dated 24 March 2025.
On the final day of the hearing, Barr Property was again granted leave to amend the development application on the basis of the following finally amended documents:
Architectural plans, later marked Exhibit G
Structural plans, later marked Exhibit J
Clause 4.6 request prepared by Mr David Waghorn later marked Exhibit J
The parties agree the amendments contained within the documents for which leave is granted are more than minor, and Barr Properties accepts that costs thrown away are to be paid to the council in accordance with s 8.15(3) of the EPA. So understood, the Council, as the relevant consent authority, approved the amendment of the development application before the Court under s 38 of the Environmental Planning and Assessment Regulation 2021.
The existing Shopping Centre and its carpark occupies the majority of the block, which it shares with five items listed for their heritage significance, including:
St Nicholas Catholic Church (item I493)
Dominican Roman Catholic Convent (item I428)
Tamworth Post Office (item I458)
Lands Office (item I373)
Commonwealth Bank Building (item I459)
In broad terms, the built form of the Shopping Centre is concentrated to the south east of the block, at the intersection of Peel Street and White Street. The carpark, various shade structures, entry and exit is concentrated to the north west of the block.
The intersection of White Street and Peel Street is towards what the parties agree may be described as the eastern end of the Peel Street Retail and Commercial hub.
Retail and commercial development predominates along Peel Street, with the character somewhat differentiated to the east and west of the roundabout. The public domain to the west is characterised by street trees, street furniture, lighting, a central paved median and wide footpaths paved in a brick paving pattern of two colours.
The character of Peel Street to the approximate east of the roundabout does not display the features described above, but is instead commercial and light industrial in its visual presentation, absent of street trees and the like.
The urban design experts differ as to the relevance of the distinction described above, however they agree that signage proliferates to both the east and west of the intersection, and to the north and south.
To the north of the intersection, signage is evident on the Shopping Centre itself, with signs for Coles, Liquorland and Kmart affixed to the external wall of the Shopping Centre. Likewise, on the opposite side of White Street, signs are visible above the parapet, and on the glazed facade to the building that addresses the north eastern corner of the intersection, known as 454-456 Peel Street. The ground floor tenancy, occupied by Jaycar Electronics is entirely wrapped in opaque vinyl sheeting at the ground floor that carries various references to electronics brands, including its own business name.
Further north, a standalone, steeply gabled form of entry marker carrying signage marks the entry to the Shopping Centre carpark sitting somewhat incongruously adjacent to St Nicholas’ Catholic Church.
Further still to the north, the Moonbi Ranges are clearly visible, and are a dominant feature of the view to the approximate north along White Street.
To the south of the intersection, signs appear for commercial developments for tyre retailers, Bob Jane and Goodyear Tyres.
In considering the development the subject of the development application, it is first helpful to consider how the proposed development is characterised with reference to the relevant definitions found within s 3.2 of the Industry SEPP.
At the outset, Barr Property submits that the Proposed Sign is not a particular advertisement of a kind described in provisions at Div 3 of the Industry SEPP, but is an advertisement of a kind to which the provisions at Div 2 apply.
In support of its position, Barr Property notes the total area of the Proposed Sign is below the area to which ss 3.15, 3.16 and 3.17 of the Industry SEPP are directed, and that as the Proposed Sign is not displayed on or above the parapet of the Shopping Centre, it does not answer the description of a roof or sky sign to which s 3.19 of the Industry SEPP is directed. Such a conclusion is supported by examples of roof or sky advertisements found within the Transport Corridor Outdoor Advertising and Signage Guidelines published by the Department of Planning and Environment (Advertising Guide) (Exhibit 1, folio 254).
Next, as the Proposed Sign is not painted on, or fixed flat to the wall of the Shopping Centre, it cannot be described as a wall advertisement to which s 3.20 is directed.
Instead, the Proposed Sign is advertising, and is not signage of a kind excluded from the Chapter by s 3.7 of the Industry SEPP, nor is it proposed in a location prohibited by s 3.8 of the Industry SEPP.
An advertisement is defined in the following terms:
advertisement means signage to which Part 3.3 applies and includes any advertising structure for the advertisement.
advertising structure means a structure or vessel that is principally designed for, or that is used for, the display of an advertisement.
building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services.
Note.
Building identification signs are a type of signage—see the definition of that term in this Dictionary.
business identification sign means a sign—
(a) that indicates—
(i) the name of the person or business, and
(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and
(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,
but that does not contain any advertising relating to a person who does not carry on business at the premises or place.
Note.
Business identification signs are a type of signage—see the definition of that term in this Dictionary.
roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.
wall advertisement means an advertisement that is painted on or fixed flat to the wall of a building, but does not include a special promotional advertisement or building wrap advertisement.
signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes—
(a) building identification signs, and
(b) business identification signs, and
(c) advertisements to which Part 3.3 applies,
but does not include traffic signs or traffic control facilities.
The Council contends that even though the sign projects clear of the wall of the Shopping Centre, it is fixed flat when the structure, being an advertising structure consistent with the definition of advertisement at s 3.2 of the Industry SEPP, is understood.
An advertisement so defined includes any advertising structure, such as the structural frame depicted on the structural plans prepared by Lewis Structural Engineers (Exhibit J), which is fixed flat to the parapet of the Shopping Centre that is proposed to be extended upwards.
If the Court finds the Proposed Sign is a wall advertisement, then only one such wall advertisement is permitted on any elevation (s 3.20(1)), and the Court is precluded from the grant of consent unless the advertisement does not protrude more than 300mm from the wall (subs (2)(c)), and a building identification sign or business identification sign is not also displayed on the building elevation (subs (2)(g)).
Barr Property submits that s 3.20(2)(c) of the Industry SEPP, which provides for protrusion of no more than 300mm from the wall for a wall advertisement, would have no work to do if a wall advertisement and structure were together limited to a projection of 300mm from the building.
While Council’s planning expert, Mr Jonathan Swan, considers those signs cited at [19] to be business identification signs, and not wall advertisements, Barr Property submits that this cannot be the case as the nature of the business carried on at the Shopping Centre is not a feature of those signs.
I do not consider the Proposed Sign to be a Roof or Sky Advertisement. While the Council encourages me to read the definition so that an advertisement displayed on a parapet may apply to an advertisement applied to the face of a parapet, I decline to do so for two reasons. Firstly, the Proposed Sign is not wholly displayed on the parapet. While not the subject of submissions, it is unarguable that a wall must be distinguished from a parapet at some point. In my view, that distinction is drawn between a wall that is below a roof, which is no more than a wall, and that part of a wall that is above, and generally concealing, a roof. So understood, Structural drawing S02 (Exhibit J) shows the proposed Sign fixed to both a portion of the wall of the Shopping Centre and the new parapet proposed. Secondly, I prefer Barr Property’s reading that suggests use of the term ‘on’, when read in context with the term ‘erected on or above, the parapet’, must imply a sign fixed atop the parapet. To read the definition otherwise would appear to describe a wall advertisement.
However, neither do I consider the Proposed Sign answers the description of a wall advertisement. Clearly, the proposal is not for an advertisement that is painted. As to whether the proposed Sign is fixed flat to the wall of the Shopping Centre, I accept that the definition of advertisement to which the relevant part of the Industry SEPP applies embraces any structure, and that it is permissible to adopt the language of the definition of advertisement when seeking to define a wall advertisement.
However, two things are to be said about this:
Firstly, any method of fixing of a sign or advertisement of any kind is likely, because of the travel of structural forces at play in the structure, to be generally ‘fixed flat’. However, as I understand the definition of wall advertisement in context and in sensible operation with s 3.20(2)(c) of the Industry SEPP, the wall advertisement must be applied flat against the wall, including but not limited to the advertising structure, with not more than a 300mm protrusion – presumably to allow a lightbox or illumination, control gear and the like.
Secondly, neither the structure nor the sign adopts the alignment of the wall or walls on which the sign is affixed but rather a curved geometry that is wholly independent of the alignment of the wall so that it cannot be described as being fixed flat to the wall or walls on which it is fixed, and at times projecting up to 1170mm beyond the face of the wall.
As the proposed Sign is not a roof or sky advertisement, nor a wall advertisement, I accept the position of Barr Property that the proposed Sign is not identified as a particular advertisement, but is instead an advertisement to which Part 3.3 applies, but for those provisions at Division 3 that apply to particular advertisements.
What follows from this is that the prohibition on more than one wall advertisement at s 3.20(1) of the Industry SEPP does not act to constrain the proposed development, whether or not the signage cited at [19] are wall advertisements or otherwise defined.
What also follows is that the grant of consent is precluded by s 3.11 of the Industry SEPP unless the Proposed Sign is firstly consistent with the objectives of Chapter 3 of the Industry SEPP, and secondly, satisfies the assessment criteria in Sch 5 of the Industry SEPP.
The relevant objectives, that are in actuality described as aims, at s 3.1(1) of the Industry SEPP are as follows:
(a) to ensure that signage (including advertising)—
(i) is compatible with the desired amenity and visual character of an area, and
(ii) provides effective communication in suitable locations, and
(iii) is of high quality design and finish, and
1 Character of the area
• Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?
• Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?
2 Special areas
• Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?
3 Views and vistas
• Does the proposal obscure or compromise important views?
• Does the proposal dominate the skyline and reduce the quality of vistas?
• Does the proposal respect the viewing rights of other advertisers?
4 Streetscape, setting or landscape
• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?
• Does the proposal contribute to the visual interest of the streetscape, setting or landscape?
• Does the proposal reduce clutter by rationalising and simplifying existing advertising?
• Does the proposal screen unsightliness?
• Does the proposal protrude above buildings, structures or tree canopies in the area or locality?
• Does the proposal require ongoing vegetation management?
5 Site and building
• Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?
• Does the proposal respect important features of the site or building, or both?
• Does the proposal show innovation and imagination in its relationship to the site or building, or both?
6 Associated devices and logos with advertisements and advertising structures
• Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?
7 Illumination
• Would illumination result in unacceptable glare?
• Would illumination affect safety for pedestrians, vehicles or aircraft?
• Would illumination detract from the amenity of any residence or other form of accommodation?
• Can the intensity of the illumination be adjusted, if necessary?
• Is the illumination subject to a curfew?
8 Safety
• Would the proposal reduce the safety for any public road?
• Would the proposal reduce the safety for pedestrians or bicyclists?
• Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?
The assessment to be undertaken at Sch 5 is of a kind that, according to Barr Property, prevails over the design excellence provisions found in cl 7.11 of the Tamworth Regional Local Environmental Plan 2010 (TRLEP) because of an inconsistency that arises between the two environmental planning instruments.
Barr Property submits that the provisions of the Industry SEPP, at s 3.4, act to override local planning instruments by stating that Ch 3 applies to all signage that can be displayed with or without development consent under another environmental planning instrument that applies to the signage (subs (1)(a)).
Likewise, s 3.5 of the Industry SEPP provides that, in the event of an inconsistency between Ch 3 and another environmental planning instrument, the provisions of Ch 3 prevail to the extent of the inconsistency.
An inconsistency arises because of the virtually identical assessment required by s 3.11(1) of the Industry SEPP, and that of the design excellence provisions at cl 7.11 of the TRLEP that could give rise to conflicting conclusions such that an adverse or negative conclusion as to design excellence would have the perverse outcome of overturning a positive conclusion formed after an assessment of the proposal against the assessment criteria at Sch 5 of the Industry SEPP.
I do not understand this to be the exercise asked of the Court by the relevant environmental planning instruments. It is entirely proper, in my view, for an assessment of the Proposed Sign, including its advertising structure, to be subject to an assessment of the kind required by s 3.11 of the Industry SEPP, and for the development the subject of the development application, of which the Proposed Sign is a part, to be subject to an assessment under s 4.15 of the EPA, including cl 7.11 of the TRLEP.
As is often the case in matters that come before the Court engaging Ch 3 of the Industry SEPP the Proposed Sign is merely a component of the development the subject of the development application.
Of course, that part of the development application beyond the Proposed Sign also involves more than the new parapet. It includes demolition to permit the construction of the new parapet, requiring stiffening and extension of structural steel elements, and bracing to the roof of the Shopping Centre, and it also proposes the removal of existing signage from the awning of the Shopping Centre.
It is conceivable that signage, when assessed against the assessment criteria at Sch 5 is deemed acceptable in terms of its impacts while the development the subject of the development application, is found not to exhibit design excellence for one or more of the reasons to which regard must be had by cl 7.11 of the TRLEP. That is not an inconsistency, but the proper application of the planning framework in respect of those elements comprising the development.
It is also conceivable that the development is considered acceptable for reasons that are similarly found against the assessment criteria at Sch 5 and the provisions of design excellence at cl 7.11 of the TRLEP.
In written submissions in closing, Barr Property acknowledges the Proposed Sign, its use and its structure are appropriately assessed in accordance with s 3.11 of the Industry and the new parapet, and presumably those other aspects described at [54], would fall within the scope of an assessment under cl 7.11 of the TRLEP.
The site on which the development is proposed is located within an area identified by the TRLEP as E2 Commercial Centre in which development for the purpose of signage, and parapet works is permitted with consent, by virtue of not otherwise being prohibited by the terms of the Land Use Table.
However, the Council contends that the Sign is incompatible with the amenity and visual character of the Tamworth Central Business District and the grant of consent would result in adverse streetscape and visual amenity impacts.
This is, in part, because the Sign is proposed to be mounted high on the Shopping Centre that accentuates its prominence.
In considering the particulars pressed in the contention as to Amenity, Character and Context, the Court was assisted by the evidence of the following experts in urban design and planning:
On behalf of Barr Properties, Mr John O’Grady (urban design) and Mr David Waghorn (planning).
On behalf of the Council, Mr Keiran McInerney (urban design) and Mr Jeremy Swan (planning).
The planning and urban design experts conferred in the preparation of a joint expert report that was filed with the Court on 14 March 2025 (Exhibit 4).
Separately, the Court directed the planning experts to confer for the purposes of preparing a joint expert report on those matters in dispute related to planning. A joint expert report was filed on behalf of the planning experts on 14 March 2025 (Exhibit 5).
The hearing commenced with an onsite view at which the Court, in the company of counsel, experts and others, viewed the site, the roundabout and existing signage and development in the area, including on Peel Street, White Street, Marius Street and Fitzroy Street.
It is relevant to note that at the conclusion of the onsite view, the Court, at the invitation of the parties, utilised the roundabout in its own vehicle, entering the roundabout from all four approaches.
According to Mr McInerney, the beautification of Peel Street is the result of works completed between 1995-2008 to narrow the roadway between Brisbane Street and White Street in order to widen footpaths and provide for street trees, street lighting and other street furniture, and a distinctive paving pattern that is unique to Tamworth.
It is because of these works that a portion of Peel Street west of the site is calm, welcoming and safe, with a hierarchy of elements that can themselves be described as a public amenity with which the Sign is inconsistent.
As the Proposed Sign represents an area approximately 20 times larger than the largest under awning sign, or about the size of a 14 seater airport shuttle bus, Mr McInerney concludes the effect of the proposal will be detrimental to the public domain.
Furthermore, the beautification of Peel Street forms the basis of a plan, known as ‘Blueprint 100’ to extend similar treatment further down Peel Street, past the subject site.
Mr Swan considers the signage evident in Peel Street today to be largely business identification signage that generally displays static content in reasonably sized signage, as distinct from the proposed advertising sign that is large, proposes changing content and would be prominent.
The evidence of the experts for Barr Property is that the desired future character of the precinct is likely be one of intensification, evident in the floor space ratio of 6:1 and 4:1 and the absence of a height limit at cl 4.3 of the TRLEP.
That suggests the character of the Tamworth CBD is evolving, and currently under-developed, or even undergoing change.
On the twin assumptions that future development seeks to achieve the FSR permitted, and that Blueprint 100 extends the beautification further down Peel Street, Mr Waghorn believes the resulting perception will be of a sign that appear less significant in the future.
That said, Mr Waghorn notes the text of criteria 1 in Sch 5 of the Industry SEPP does not seek compatibility with the desired future character alone, but with the alternative which is the existing character.
The existing character of those buildings addressing the intersection of Peel and White Street share the similarity of a single storey built form with parapet above an awning, with signage displayed above.
Barr Property also draw the Court’s attention to digital signage within shopfronts on Peel Street, displaying animated content and notably within close proximity to the intersection.
The visual impact of the proposed development is considered in a Design Excellence Review and Visual Impact Assessment prepared by Mr John O’Grady dated 25 July 2024 (VIA) (Exhibit H, Tab C). Six viewpoints are identified that range in distance from the site, with the following criteria adopted:
Viewpoint sensitivity – the level of value that viewers would be likely to attribute to the quality of view from a given location
Change magnitude – the amount of change to views from given locations that would likely result from implementation of the proposed development.
Composite impact level - value judgment based on the assessed sensitivity of the viewpoint and amount of change that would be likely to occur to the specific view or views from similar locations.
Viewpoints are assessed in a graded manner that is said to be consistent with the Guideline for landscape character and visual impact assessment – Environmental impact assessment practice note EIA-NO4 (December 2018), published by the NSW Roads and Maritime Services, as it was then.
The Court’s attention was drawn to a viewpoint during the onsite view in the approximate location of Viewpoint 4 as marked in the VIA, re-produced below, where the Proposed Sign projects beyond the parapet as a backdrop and obscures a portion of the view to the Moonbi Range in the distance.
Mr Waghorn’s evidence is that view which is obscured is already obstructed by existing built form, with a negligible impact on the existing view and on a view that is likely to be lost by development in the future that seeks to achieve the floor space ratio permitted on the site.
Mr Swan identifies certain viewpoints that have not been assessed in the VIA, and disputes the grading applied by Mr O’Grady to the Viewpoints in the VIA. In respect of Viewpoint 5, re-produced above, Mr Swan believes the structure sitting behind the Proposed Sign will be visible, resulting in an unacceptable impact.
As the colour, material and finish of the advertising structure is not specified anywhere in the development application, the Council submits that no reasonable assessment or opinion of satisfaction could be formed as to the visual impact and compatibility of the proposal with the character of the area, such as the opinion recorded by Mr O’Grady on p 32 of the VIA.
Neither is the size of structural members that comprise the advertising structure nominated anywhere in the development application, which Mr McInerney notes is likely to be visible given the extended projection of the Sign from the parapet.
Heritage issues are also considered on p 32 of the VIA. It is helpful to record here that the site is not identified as an item of heritage significance, nor is it located within a heritage conservation area. However, the Amended Statement of Facts and Contentions, prepared by the Council (Exhibit 6) states that it is within the vicinity of eight heritage items listed for their significance at the local and state level of significance.
In considering the visual impact of the proposal on heritage items in the vicinity of the site, the Court was assisted by the evidence of experts, Ms Lisa Trueman on behalf of the Council, and Mr James Philips on behalf of Barr Properties, who conferred in the preparation of a joint expert report filed 5 March 2025 (Exhibit 2).
In summary, the heritage experts agree the proposed Sign will not have a material impact on the heritage items in the vicinity of the site, notwithstanding Ms Truman’s conclusion that an impact is likely, albeit minor.
I will set out my findings as to the evidence of the experts within the rubric of s 3.1(1) and Sch 1 of the Industry SEPP at [123]-[129].
The Council contends that the Sign will negatively affect the safety of motorists, pedestrians and cyclists using the traffic roundabout because the intersection is a critical junction and the Sign adds visual complexity and clutter, leading to the potential for distraction.
As such the proposal fails in two respects:
Firstly, the proposal fails to exhibit design excellence insofar as it fails to adequately address pedestrian, cycle, vehicular and service access, circulation and requirements as required by cl 7.11(5)(e)(viii) of the TRLEP, and
Secondly, the Sign is not consistent with the assessment criteria in Sch 5 of the Infrastructure SEPP.
The Court was assisted in this regard by experts in traffic engineering Mr Damien Bitzios on behalf of Barr Properties and Mr Paul Corbett on behalf of the Council. A joint report authored by the experts was filed with the Court on 12 March 2025 (Exhibit 3).
While the experts agree on a number of factual matters, they are apart on the whether the Sign will increase the risk of conflict between vehicles, pedestrians and cyclists in the vicinity of the roundabout.
The experts also disagree on whether driving is a complex task, and whether advertising is designed to attract attention, or distract from the task of driving and, in this case, navigating what Mr Corbett describes as 4 potential conflicts between vehicles and pedestrians, and 3 points of potential conflict between a vehicle and another vehicle or cyclist.
A relevant starting point, in my view, is that the experts agree the crash data reported in Table 2 of the Traffic Assessment is not significant for a busy urban intersection, and is not suggestive of a trend that would be necessarily influenced by a Sign such as that proposed. Such crash data is limited by certain factors, such as recording only those incidents attended by police, and excluding data on near-misses.
While a number of like terms are used in evidence, all relate to the distance required to perceive, react and brake to avoid a collision with another vehicle, a pedestrian, cyclist or other human or object.
Of greatest relevance is the Stopping Sight Distance (SSD), a term taken from Part 4A, Section 5.3 of the Austroads - Guide to Road Design. For a roadway such a White Street, subject to a speed limit of 40km/h but in reality having a design speed of 30km/h agreed between the experts, the SSD is 22m.
The concept is also cited in the Advertising Guide (Exhibit 1, Tab 7).
Chapter 3 deals with Advertisements and road safety. The objectives of the Chapter include:
“Advertising displays within the visual catchments of roads are designed to attract the attention of road users. A reduction in driver attention away from the road, however, has the potential to create a road safety risk. The aim is to ensure that the design, location and operation of advertising signage do not create a road safety hazard or increase road safety risk for road users.
…”
Three sections are regarded by the parties as particularly relevant.
Firstly, Section 3.2.2 deals with Line of Sight in the following terms:
To maximise visibility of the road and minimise the time a driver’s attention is directed away from the road, the following criteria apply to all advertising signage:
a. An advertisement must not obstruct the driver’s view of the road, particularly of other vehicles, bicycle riders or pedestrians at crossings.
b. An advertisement must not obstruct a pedestrian or cyclist’s view of the road.
c. The advertisement should not be located in a position that has the potential to give incorrect information on the alignment of the road. In this context, the location and arrangement of signs’ structures should not give visual clues to the driver suggesting that the road alignment is different to the actual alignment. An accurate photo-montage should be used to assess this issue.
d. The advertisement should not distract a driver’s attention away from the road environment for an extended length of time. For example:
i. The sign should not be located in such a way that the driver’s head is required to turn away from the road and the components of the traffic stream in order to view its display and/ or message. All drivers should still be able to see the road when viewing the sign, as well as the main components of the traffic stream in peripheral view.
…
Mr Corbett acknowledges that the Sign does not obstruct a driver’s view of the road, other vehicles, bicycle riders or pedestrians, nor obstruct the view of the road from a pedestrian or cyclist. Neither is the Sign located to give incorrect information. As such, those matters at a), b) and c) of Section 3.2.2 are not offended.
However, diagrams prepared by Mr Corbett in Annexure C of the joint report depict view cones or sight lines from vehicles in certain locations within the roundabout, and entering or exiting the roundabout.
Mr Corbett is of the view that these diagrams show locations where vehicles entering the roundabout, and within 22m of a potential conflict point, may be distracted by the Sign and be placed at risk of conflict, and there are two locations where a driver can view the Sign while looking forward in the road way.
Citing research re-produced within the Austroads Impact of Roadside Advertising on Road Safety, Mr Corbett notes that a glance away from the forward roadway for more than two seconds doubles near-crash and crash risk. Applying this to two locations marked Conflict Point 2 and 6 that are both within the roundabout and within 22m of the Sign, the risk lies in failing to observe oncoming vehicles in sufficient time to react.
Two approaches in particular:
The first is the approach from the south on White street, approaching the pedestrian crossing immediately before the roundabout itself (the White Street approach), shown as Vehicle Position A on Diagram 3.
The second is from a westbound vehicle approaching the roundabout from the east, shown as Vehicle Position A in Diagram 2 (the Peel Street Approach).
In these locations, a driver is not required to turn away from the road to view the display on the Sign or lose sight of the road and so is more susceptible to distraction from the Sign.
In general terms, Mr Bitzios believes it is unlikely that any road user would turn away from a view of the road to view the Sign and voluntarily place themselves at risk.
Mr Bitzios acknowledges that research shows people are more likely to glance at a digital sign than a non-digital sign, but that the duration of a such a glance is 0.5 secs. When such a duration is considered alongside the travel speed of vehicles in this roundabout, and the SSD of 22m, there remains ample time for road users to perceive, react and brake.
In making an assessment against the Transport for NSW (TfNSW) Advertising Sign Assessment Matrix (Table 3.3), the Traffic Assessment identifies a pedestrian crossing sign on the western side of the White Street Approach that overlaps with the Sign when viewed from a northbound vehicle, and places the pedestrian crossing in the sightline of the road user who may glance at the Sign on approach.
The experts view this somewhat differently. Mr Bitzios’ evidence is that pedestrians do not appear from nowhere, but can be seen entering a pedestrian crossing for a period of time prior to being placed in a position of risk.
However, Mr Corbett observes that the Sign is proposed at a height that would direct vision in an upward direction, and that the four corners of the intersection are planted with hedges that would obscure children and the like.
Next, Section 3.2.3 of the Advertising Guide deals with Proximity to decision making points and conflict points, stating:
It is important that drivers are not distracted near decision making points or conflict points to allow concentration to be focused on the driving task where the driver’s attention requirements are greater.
Decision making points include areas in which merging, diverging, turning and weaving traffic manoeuvrers take place. Conflict points are locations such as intersections or pedestrian crossings where crash risk is greater.
To minimise distraction near decision making points and conflict points, and ensure there is sufficient distance for a driver to recognise, react and, if required, stop safely before reaching one of these points, the following criteria apply to all advertising signage:
a. The sign should not be located:
i. less than the safe sight distance from an intersection, merge point, exit ramp, traffic control signal or sharp curves
ii. less than the safe stopping sight distance from a marked foot crossing, pedestrian crossing, pedestrian refuge, cycle crossing, cycleway facility or hazard within the road environment
iii. so that it is visible from the stem of a T-intersection.
Mr Corbett believes the Sign is located less than 22m from the pedestrian crossing on Peel Street, contrary to the guidance at Section 3.2.3(a)(ii).
In the location proposed, and by virtue of its curvature, the Sign would be only party visible from certain approaches, such a southbound vehicle approaching from the direction of St Nicholas’ church. The driver of that vehicle, if turning right, may glance at the sign multiple times in order to fulfil the curiosity of what the remainder of the Sign reveals as the vehicle approaches the pedestrian crossing in Peel Street.
Additionally, the number of changes in the images depicted on the Sign, or the dwell time of images once displayed, determines the number of changes to which a driver is exposed during travel through the intersection. Mr Bitzios calculates that 68% of drivers will see one change in the advertisement displayed at a design speed of 30km/h. At a lower speed of travel, 32% of drivers will see 2 changes, and 64% of drivers will see 3 changes.
Mr Corbett puts the number of changes much higher, when delays at the roundabout, due to congestion or a wait period on account of giving way to pedestrians crossing, might result in drivers seeing between 4-5 changes in image during that period.
The dwell time and duration of transition time between advertisements is dealt with in more detail at Section 3.3.2 and relevantly provides:
Signs which change advertising content are more likely to distract a driver than signs with content that is static. In locations where digital and moving signs are assessed to be appropriate, the minimum dwell time and maximum transition time set out in the criteria must be applied. Longer dwell times may be necessary in more complex locations. Dwell time criteria for digital signs:
a. Each advertisement must be displayed in a completely static manner, without any motion, for the approved dwell time as per criterion (b) below.
b. Dwell times for image display must not be less than:
i. 10 seconds for areas where the speed limit is below 80km/h.
…
…
d. Digital signs must not contain animated or video/movie style advertising or messages including live television, satellite, Internet or similar broadcasts.
e. The transition time between messages must be no longer than 0.1 seconds, and in the event of image failure, the default image must be a black screen.
I accept the agreement of the traffic experts that the design speed for the intersection is 30km/h, and the research at [107] suggesting a driver may glance at a digital sign for a period of 0.5 secs.
However, I do not accept that advertising is so enticing that it would invite multiple glances by a driver using the roundabout, especially where doing so requires turning of a driver’s head at the expense of their own safety.
Where the Proposed Sign does not require a driver to turn their head, and the risk is instead the upward inclination to view the Sign, such as at the White Street Approach and the Peel Street Approach, I consider this to occur at such a distance from the vehicle that the deviation from the road ahead to be so minor that the road would not be outside the driver’s field of vision.
Next, while not seeking to impose the burden of road safety on pedestrians, ensuring safety at pedestrian crossings is a shared undertaking between pedestrians and drivers. Furthermore, it is reasonable in my view to expect that anyone seeking to use the pedestrian crossing that is of a height likely to be concealed by the low landscape planting at the intersection will be in the company of a supervising adult, or be of an age that is reasonable to expect caution to be exercised.
I have given particular consideration to the White Street Approach, where a driver approaching the roundabout has the potential to be distracted by the advertising displayed on the sign, and for it to coincide or overlap with the pedestrian sign to the west of the pedestrian crossing. Such a viewpoint is depicted by Mr Corbett in Annexure E of the joint report, re-produced below:
In the Court’s own assessment, the overlap that occurs for drivers on the White Street Approach is likely to be so minor and fleeting, that I am not troubled by the overlap. I have also considered whether brightness from the digital sign could create glare that diminishes the contrast needed to perceive the pedestrian sign. Given the illumination is proposed to be graduated according to daytime, morning and evening twilight and inclement weather, and nighttime, I consider this to be acceptable.
When the Proposed Sign is assessed against the aims of Ch 3 of the Industry SEPP, I find as follows:
In respect of the desired amenity and visual character of the area, I note Mr Inerney’s considered description of the amenity afforded by the improvements made over time to Peel Street, west of the intersection. The suite of enhancements to the public domain undoubtedly contribute to a rich and pleasant environment. As is so often the case, a strongly defined public domain forgives the multitude of sins otherwise evident in the garish competition between retail interests vying for attention, including, in this case, a variety of fascia and under awning signs, and on shopfronts themselves, opaque and highly coloured vinyl covering shopfronts, animated digital screens and more. In this context, I do not find the Proposed Sign at odds with the visual cacophony that comprises the existing visual character, and for which no specific statements as to the desired character are contained within the Tamworth Regional Development Control Plan 2010 (TRDCP). In the event the improvements to Peel Street continue as foreshadowed in Blueprint 100, I accept Mr Waghorn’s evidence that the scale and prominence of the Proposed Sign would be moderated by those improvements.
The orientation of the Proposed Sign is also, effectively, outward facing from the existing retail precinct within Peel Street, and is located above the awning. As such, it does not add to the signage within the retail precinct. By locating the Proposed Sign above the awning and largely viewed against the backdrop of the new parapet, I accept the location of the Proposed Sign is a suitable location. Next, as the dwell time is consistent with the guidance provided in Section 3.3.2 of the Advertising Guide and will not, in my view, encourage driver’s to turn their head while utilising the roundabout, the communication is effective.
Finally, while it is correct that Barr Property does not specify the finish proposed to the structure, the Structural Plans depict a structural frame with a limited number of members, arranged in an orderly and uncluttered assembly that, if finished to match the dark finish inherent in a digital sign, and considering the shadow likely to be cast by the Proposed Sign onto the parapet wall behind, would be, in my view, of high quality design and appropriate finish.
Next, I will now set out the reasons I find the proposal satisfies the assessment at Sch 5 of the Industry SEPP.
In respect of the character of the area, I note that there is no particular theme evident for outdoor advertising that applies to the area of locality, and that the existing visual character is one of wide variety, other than the admirable consistency in the Peel Street public domain west of the intersection. Again I note the Proposed Sign faces outward to a very different character absent street trees, wide footpaths, street furniture and controlled on-street parking. Should the improvements to Peel Street extend to the east as foreshadowed in Blueprint 100, the location of the Proposed Sign above the awning to the Shopping Centre, and viewed largely against the backdrop of the new parapet, will not be incompatible with the existing or future desired character of Peel Street as the uses cited under Section 2.3 of Blueprint 100 are envisaged to include existing uses, or uses that are not incompatible with the Proposed Sign, such as a new theatre/performing arts precinct.
As to whether the Proposed Sign detracts from the amenity or visual quality of any area nominated in criteria 2 of Sch 5, I note two areas are nominated by the experts as having special qualities; being the Peel Street retail precinct that I have considered above, and the view to the Moonbi Range to the north of the intersection. For reasons stated earlier, I do not find the proposal detracts from either of these, to the extent they may be described as special areas.
Relatedly, while there is an obscuring or obstruction of the Moonbi Range from a particular viewpoint, re-produced at [79], I have found this to be minor and only evident within a limited range of movement to the south of Peel Street, close to the intersection of White Street. As the proposal remains well below the gabled entry features of the Shopping Centre, and adopts a parapet height matching that of the existing Shopping Centre, it does not dominate or reduce the quality of vistas. By being located above the awning and largely visible against the backdrop of the new parapet, I accept the proposal respects the viewing rights of other advertisers, in accordance with criteria 3.
Criteria 4 deals with streetscape, setting and landscape. In respect of the scale, proportion and form, I note Mr McInerney describes the scale as being 20 times the size of an under awning sign in Peel Street today. While probably accurate, such a comparison is useful only up to a point, given the photomontages depict the Proposed Sign as more of a billboard addressing the scale of the intersection and streets beyond, and is not a sign viewed at close quarters when walking on a Peel Street footpath. The proposal includes the removal of three signs from the fascia of the awning, and so proposes to rationalise or simplify signage to the extent that signage is proposed for removal as well as its addition. As stated prior, the Proposed Sign is largely viewed against the backdrop of the new parapet and so, other than the view depicted at [79], does not protrude above or beyond the Shopping Centre, or tree canopies or other structures for that matter. The Proposed Sign does not require ongoing vegetation management, and may not contribute visual interest so much as provide advertising and information in support of local commerce, but I do not understand this to fail to satisfy the assessment criteria given the criteria does not, of itself, seek a definitive response either way.
In respect of Criteria 5, the proposal is compatible with the scale, proportion and corner position, being an important feature, of the Shopping Centre by virtue of it being largely seen against the backdrop of the new parapet, and by adopting a curved geometry to resolve the otherwise obtuse angles of the presentation at this intersection. To the extent imagination has been shown in preparing the proposal, it is, in my view, by extending the parapet so that the Proposed Sign does not assume an undue prominence in the streetscape.
The proposal does not seek consent for any safety devices, platforms, lighting devices or other element cited in Criteria 6 to be integrated into the Proposed Sign or the structures on which it is a part, beyond integrate control and lighting gear.
That lighting provides internal illumination that, as briefly mentioned at [122], is proposed to be graduated and is expressed as follows:
Daytime: 6,000 cd.sqm (candela/m2)
Morning and evening twilight, and during inclement weather: 700 cd/sqm
Nighttime: 350 cd/sqm
The Proposed Sign is to be switched off at 11pm, and the experts do not contend that the illumination as proposed during operation would result in unacceptable glare or affect vehicles, aircraft or pedestrians, not detract from the amenity of any kind of residential accommodation in Tamworth.
For the reasons set out at [52], it is my understanding that the provisions of cl 7.11 of the TRLEP apply to the development the subject of the development application because no inconsistency arises when the provisions of the Industry SEPP are properly understood, and because the site is located within the area designated as such on the relevant map at cl 7.11(2) of the TRLEP.
The VIA sets out reasons as to whether the proposal exhibits design excellence, and how those matters at subl 7.11(5)(e) of the TRLEP are addressed.
In the alternative, Mr McInerney’s evidence at par 1.3-1.27 of the joint report details reasons the proposal fails to exhibit such design excellence, and Mr Swan’s evidence at pars 1.28-1.53 does likewise.
I note here the Proposed Sign will not be illuminated 24 hours as asserted by Mr McInerney, but according to the graduations and timeframes at [131]. Mr McInerney also considers any assessment of the design excellence to lack the assistance of information usually seen in architectural documentation such as the extent of demolition, and new works for that matter, materials and finishes and revisions clouded and annotated, and is absent an accurate survey.
While these deficiencies preclude a finding that the proposal exhibits design excellence, according to Mr McInerney, the scale and complexity of the proposal is a moderating factor in the particular relevance of the deficit in my view. That is, while the materials and finishes are lacking, those materials and finishes associated with large digital screens are somewhat familiar, as is the integrated nature of control gear that is, I note, depicted in the Management and Maintenance Plan (Exhibit M). Next, the parapet is an extension of materials and finishes currently evident in the existing Shopping Centre, allowing an extrapolation of those materials and finishes to the height shown in architectural plans DA201, for example. As for the finish to the structural steel shown on the Structural Plans, I do not share Mr Swan’s concern that painting the structure, or for that matter, screening the underside of the structural frame, which is not proposed, will make the structure appear bigger or bulkier.
Instead, as stated briefly at [123(3)], I consider the advertising structure to be well considered, with limited visibility from the public domain given the proximity of the awning immediately below it, that obstructs a sightline other than from the reasonably distant oblique. While the structural sizes of members comprising the advertising structure are yet to be confirmed, this is unremarkable at a development application stage, and more commonly a part of the documentation prior to the issue of a construction certificate. As to finish, I understand the photomontages to portray a dark painted finish to the structure, in keeping with the predominant colour of the inactive components of the screen to the Proposed Sign.
The Shopping Centre is a permissible use, located on a corner with a more active frontage addressing Peel Street, and a more utilitarian, service-related frontage towards White Street. The Proposed Sign curves to address both streets, and is largely seen against the backdrop of a new parapet designed to achieve a height matching the higher parapet to its west. As such, the proposal aligns its massing to an existing feature of the Shopping Centre. Given these locational cues and extrapolation of existing building modulation, I accept that a high standard of architectural design, materials and detailing appropriate to a digital sign on a shopping centre in a retail precinct, in a commercial town centre, is achieved. In arriving at such a conclusion, I have considered the suitability of the land for the development proposed (subcl (5)(e)(i)), the existing and proposed uses and use mix on the site (subcl (5)(e)(ii)), streetscape issues (subcl (5)(e)(iii)) including street frontage heights (subcl (5)(e)(vi)), and the bulk, massing and modulation of buildings (subcl (5)(e)(v)) of the TRLEP.
The VIA asserts that the public domain will be improved because the Proposed Sign represents a single vehicle for the display of advertising, in lieu of multiple signs that would otherwise be required for the same task. While a proposal for multiple signs on this site may not meet with approval, I accept the removal of signage from the fascia of the awning, being an aspect of the proposed development, is likely to improve the public domain (subcl (5)(e)(ix)).
Mr Swan’s evidence is that the Proposed Sign is inconsistent with the existing character of an upgraded Peel Street – a proposition with which Mr McInerney agrees. As stated at [123(2)], the Proposed Sign adopts a curved, outward facing geometry that is largely concealed from within the bounds of the Peel Street retail precinct as currently defined.
While no view corridor is identified within the TRDCP, the experts engage in discussion on the impact of views to St Nicholas’ Church, and to the Moonbi Range. As stated earlier, I do not find either of these views detrimentally impacted by the proposal (subcl (5)(e)(c)), when the bulk, massing and modulation of the proposal (subcl (5)(e)(v)), heritage issues (subcl (5)(e)(iii)) and the street frontage heights are considered (subcl (5)(e)(vi)).
As the proposal is substantially limited to development above the awning to Peel Street and White Street, I consider whether the development incorporates actives frontage and pedestrian thoroughfares (subcl (5)(d)) to be largely irrelevant to the proposal.
Finally, I have considered pedestrian, cycle, vehicular and service access, circulation and requirements (subcl (5)(e)(viii)) at [90]-[122], and I consider the graduated level of lighting, and proposal to switch off illumination between 11pm-6am an appropriate response to sustainable design for something that otherwise draws energy for its use (subcl (5)(e)(vii)).
On the basis of the above, the proposal exhibits design excellence.
In arriving at this conclusion, I have also had regard to the objectives for development in the E2 Commercial Centre that are:
• To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.
• To encourage investment in commercial development that generates employment opportunities and economic growth.
• To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.
• To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.
• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.
The Council contends that the Court does not have the information before it required to grant approval of a kind sought by Barr Property under s 138 of the Roads Act 1993 (Roads Act) and the provision of such material cannot be the subject of a condition of consent, as is proposed by Barr Property at Condition 26.
Section 138 of the Roads Act is in the following relevant terms:
138 Works and structures
(1) A person must not—
(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.
…
In this case, as the road is not a classified road, the Council is the roads authority.
The Council invites the Court to conclude that the proposal is not sufficiently developed or acceptable to be approved under s 138 of the Roads Act, as was found in Redbank United Pty Ltd v Blue Mountains City Council [2024] NSWLEC 1615.
In written submissions, the Council sets out the kind of material lacking from the development application that would act to preclude the grant of consent of a kind under s 138 of the Roads Act, including, but not limited to, a Traffic Control Plan, a detailed Construction Management Plan, evidence of insurances and dilapidation surveys, a works schedule and dates and notification processes for any road closure that may be required.
The proposal includes alterations and additions to an existing Shopping Centre, entirely within private land. The advertising structure and Proposed Sign are located above the awning located above the public footpath. There is, in my view, no doubt that a crane will be required to hoist the Proposed Sign and its structure in to place, with work to be undertaken to affix it to the parapet. This is, in turn, likely to require some form of barrier below the awning to exclude pedestrians from the area while preparatory work and installation is undertaken.
Craning the Proposed Sign may require some form of road closure and traffic control measures.
These are all matters properly considered prior to the issue of a Construction Certificate in my view and likely to be somewhat uncontroversial, I suspect.
The development application includes an application for development consent under s 138 of the Roads Act. As shown by Biscoe J in Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259, at [10], a ‘separate piece of paper’ constituting an application for such consent is not required.
As is well known, the Court, on appeal, has all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal: s 39(2) of the Land and Environment Court Act 1979 (LEC Act), and the decision of the Court will be deemed to be the final decision and shall be given effect accordingly: (s 39(5) of the LEC Act).
I see no barrier to the Court granting consent to the application under s 138 of the Roads Act, should the court be otherwise minded to grant development consent.
At the close of the hearing, the parties agreed that the Court, if minded to do so, could deliver preliminary judgment with directions for conditions of consent to be subject of conferral between parties. Alternatively, the Court, having so decided those matters in dispute could resolve the conditions as disputed between the parties.
The Court was assisted by submissions on the conditions disputed between the parties and the Court directed that parties confer and file and serve a form of conditions with areas of disagreement so annotated.
On 2 April 2025, the parties complied with the Court’s direction by providing conditions of consent preferred by both parties.
The Council relies on s 3.12(2) of the Industry SEPP to propose a condition that would limit the duration of consent to a period of 5 years.
Barr Property maintains the duration it seeks is for 15 years, consistent with s 3.12(1) of the Industry SEPP.
As I do not understand Council to have adopted a policy in terms set out at s 3.12(2)(a), and I do not find the Proposed Sign inconsistent with a character derived from the FSR controls in the TRLEP, and no lesser period is required by another provision of the Chapter, I see no reason to impose a lesser period than that anticipated by s 3.12(1) of the Industry SEPP.
For identical reasons, I also adopt the period of fifteen years in Condition 3.
The Council also proposes a condition requiring the removal of the Proposed Sign in the event it becomes obsolete or non-functional for a period of 30 days or more. Barr Property contest the necessity for the Condition and identify a similar provision at Condition 41(d) that appears to provide for the same or similar.
When the proposed condition is read in conjunction with the Fault Type and Response times section of the Management and Maintenance Plan (Plan of Management) (Exhibit M), the Condition appears to provide a more than reasonable response time for any faults, and varies in substance from the subject at Condition 41(d). The means by which the Proposed Sign is accessed for maintenance or repair are also set out on p 5 of the Plan of Management.
Such access is the subject of a Safe Work Method Statement at Annexure 3 of the Plan of Management. The Council seeks to impose a requirement for Barr Properties to obtain approval under the Roads Act for any maintenance works or other activities associated with the development in the public road by applying under s 138 for each instance of maintenance.
The Condition is resisted by Barr Property on the basis that the means of access is set out in the Plan of Management, and s 138 of the Roads Act operates on its own terms, separate from conditions of consent. I accept the argument advanced by Barr Property. Condition 46 is deleted.
The Council seeks to impose a condition that the dwell time of images displayed in 24 hours, to change at 6am daily. I have found the dwell time proposed to be consistent with the dwell time stated at Section 3.3.2 of the Advertising Guide and amend Condition 44 accordingly.
The Council proposes to adopt an option proffered by the experts acting on behalf of Barr Property require that 5% of screen time each month during the daytime is to be for community service announcements, public messaging, Council initiatives, road safety, or emergency messages, at the direction of the Council.
Such a condition is described by the Council as a public benefit of a kind provided for in the Industry SEPP. Reference to public benefits appears at s 3.11(2)(b)(iii) but only where the Minister for Planning is the consent authority, or ss 3.16 or 3.22 apply to the proposal. A similar provision invoking ss 3.16 and 3.22 is also at subs (3).
I decline to adopt Council’s proposed condition for two reasons, Firstly, the proposal does not meet any one of the relevant thresholds at sub (2) or (3). The Proposed Sign is not greater than 20m2 and so s 3.16 does not apply. Neither is the Proposed Sign proposed to be affixed to a bridge, to which s 3.22 is directed. When regard is had to the Advertising Guide, I note Chapter 4 deals with what it describes as the public benefit test for advertising proposals, and again sets out the criteria for such a test in terms that are not directed to this proposal.
Secondly, while I acknowledge references to a public benefit originate from Mr Waghorn’s evidence, it is, in my view, an extrapolation made incorrectly from a reference in Section 4.5 of the SEE that does not infer, in my reading, an offer of a public benefit but rather not more than a general statement promoting the development by stating: “Advertisement assists governments in messaging for public benefit and positive social change.” (Exhibit C, p 24)
The Council proposes to impose certain restrictions on the Proposed Sign that are said by Barr Property to be constraints on content, contrary to the aims and objectives found at Ch 3 of the Industry SEPP, and not sought by the TRDCP.
The restrictions to which Barr Property take particular exception are the following sub sections to Condition 13:
…
(d) a method of illumination that unreasonably distracts or dazzles drivers.
(e) any audio elements (signage must be silent).
(f) advertising in languages other than English unless accompanied by an accurate English translation.
While Barr Property maintain that it is impermissible to seek to regulate content, I note the Advertising Guide does precisely that at Section 3.3. Advertisements must not be construed to give instruction to ‘stop’, ‘halt or ‘give way’ (section 3.3.1(b)(i)), must not use red, amber or green circles, octagons or crosses or shapes or patterns that may result in the advertisement being mistaken for a traffic signal (s.3.1(b)(iii)). Likewise, “The amount of text and information supplied on a sign should be kept to a minimum (e.g. no more than a driver can read at a short glance).”
The criteria Council seeks to impose in Condition 13 does not, in my view, constitute a regulation of content by prescribing or prohibiting certain content but does no more than seek to reduce the potential to distract and confuse motorists at the intersection which I accept is a proper planning purpose.
For the reasons set out at [152]-[155], I consider the terms in Condition 26, requiring a Construction Management Plan (CMP) to be no more than would be reasonably expected of development prior to the issue of a Construction Certificate.
The parties are apart on the terms of Condition 30 that requires, in part, details of the barricade construction, area of enclosure and period of work to be submitted to the satisfaction of Council. Barr Property submits such details are appropriately contained within a CMP of a kind required by Condition 26, whereas the Council submits, rightly in my view, that the details to which the condition relates are details of interventions on Council’s footpath, in which Council has a stake and that it is inappropriate for such details to be provided to the certifier to the exclusion of Council.
The proposed terms of Condition 18 deal with materials and structures used in the mounting/support of the sign. Barr Property propose the condition require that all materials and structures used in the mounting/support of the sign (including any materials and structures associated with the maintenance of the sign) are to be a dark recessive colour and located behind the signage such that visibility from the public domain is minimised.
As the finishes are not specified in the development application, the Council submits it is only proper that Council staff be satisfied prior to their adoption.
Had a particular finish been specified, by reference to a powdercoat colour or other similar finish, I would agree with Barr Property that further oversight is unnecessary. However, given Barr Property proposes no more than a ‘dark recessive colour’, I accept a role for Council in the final selection.
Condition 41 sets out the terms of a Plan of Management for Ongoing Maintenance and Operation. For reasons at [173]-[174], reference to public benefit is deleted, but otherwise I find the Council’s preferred terms reasonable and are adopted. I note the requirement for regular structural inspections by a qualified structural engineer to consider all structural elements of the digital advertising sign and roof/building structures (including the awning and supports). A stated at [54], the development is not limited to a screen and its structural support, but involves works to stiffen and brace components of the existing Shopping Centre, and so inspection of a kind proposed by the Council is entirely reasonable.
That said, I agree with the submissions by Barr Property that Condition 42 would appear to be dealt with by the preparation of a Plan of Management for Ongoing Maintenance and Operation in the form required by Condition 41.
The Court orders that:
The Applicant is granted leave to rely upon amended plans and other documents subject to paying the Respondent’s costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.
The appeal is upheld.
Development application DA2023-146 for the erection of the digital advertising sign on the external façade fronting the corner of Peel Street and White Street, partial demolition of an existing wall, and construction of a new parapet, removal of existing signage and associated structural works is determined by the grant of development consent, subject to conditions of consent at Annexure A.
Development consent is granted for the proposed works under s 138 of the Roads Act 1993.
All exhibits are returned, except for Exhibit A, B, C, E, H, M and 8 and 9.
Annexure A (233 KB, pdf)
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BARR Property and Planning Pty Ltd
Tamworth Regional Council [2025] NSWLEC 1313
(2007) 156 LGERA 27