Barr Property and Planning Pty Ltd v Tamworth Regional Council (No 2) [2026] NSWLEC 1225 | Case summary | Zoe

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Barr Property and Planning Pty Ltd v Tamworth Regional Council (No 2)

[2026] NSWLEC 1225

Land and Environment Court (NSW)|2026-04-28|Before: Horton C

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Court

Land and Environment Court (NSW)

Decision date

2026-04-28

Before

Horton C

Catchwords

APPEAL — remitter — whether Proposed Sign is a wall advertisement — whether Proposed Sign is fixed flat — whether development exhibits design excellence — clause 4.6 variation to development standards

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Catchwords

APPEAL — remitter — whether Proposed Sign is a wall advertisement — whether Proposed Sign is fixed flat — whether development exhibits design excellence — clause 4.6 variation to development standards

Judgment

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 (No 2) [2026] NSWLEC 1225

Hearing dates: 26 February 2026

Date of orders: 28 April 2026

Decision date: 28 April 2026

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 (NSW).
(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, D, E, H, and M.

Catchwords: APPEAL — remitter — whether Proposed Sign is a wall advertisement — whether Proposed Sign is fixed flat — whether development exhibits design excellence — clause 4.6 variation to development standards

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 4, ss 4.15, 8.15 Land and Environment Court Act 1979 (NSW), ss 39, 56A Roads Act 1993 (NSW), s 138 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.2, 3.6, 3.7, 3.11, 3.19, 3.20, Sch 5 Tamworth Regional Local Environmental Plan 2010, cll 4.6, 7.11, 7.14, 7.15

In the Amended Statement of Facts and Contentions prepared by Tamworth Regional Council (the Council) and filed with the Court 15 January 2026, there are seventeen contentions identified.
However, in written submissions filed prior to the hearing, Barr Property submits, unopposed, that it is not necessary in the matter on remitter for the Court to reconsider those particular aspects of the proposal undisturbed by the s 56A Appeal, namely:
Road safety, considered at [88]-[122] of the Initial Appeal;
Impacts on amenity or character arising from the sign, considered at [123]-[131] of the Initial Appeal;
That the sign exhibits design excellence, considered at [137]-[145] of the Initial Appeal;
The assessment of the sign itself against the criteria included in Sch 5 of State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP), considered at [87]-[132] of the Initial Appeal; and
The approval granted under s 138 of the Roads Act 1993 (NSW), considered at [150]-[157] of the Initial Appeal.
I adopt those reasons set out in the Initial Appeal and cited above that are undisturbed by the s 56A Appeal.
On 5 December 2025 the Court granted Barr Property leave to rely upon amended plans and other documents and made orders in accordance with Short Minutes of Order that were not opposed.
Barr Property sought to further amend the development application the subject of this appeal by Notice of Motion filed on 20 February 2026 (20 February Motion), comprising the following amended plans and other documents:
Proposed Stormwater Drainage Plans prepared by Deboke Engineering dated 30 January 2026.
Survey plan of Detail and Levels Over Part of Lot 101 in DP629477 at 432-452 Peel Street, Tamworth prepared by LTS, Revision A dated 17 February 2026.
Statement prepared by Deboke Engineering Consultants dated 30 January 2026.
Clause 4.6 Variation Statement Advertising and Signage – Clause 3.20(1) of State Environmental Planning Policy (Industry and Employment) 2021 prepared by Planning Ingenuity, dated 11 February 2026.
Clause 4.6 Variation Statement Advertising and Signage – Clause 3.0(2)(b)(iii) of State Environmental Planning Policy (Industry and Employment) 2021 prepared by Planning Ingenuity, dated 11 February 2026.
Clause 4.6 Variation Statement Advertising and Signage – Clause 3.20(2)(c) of State Environmental Planning Policy (Industry and Employment) 2021 prepared by Planning Ingenuity, dated 11 February 2026.
Clause 4.6 Variation Statement Advertising and Signage – Clause 3.20(2)(g) of State Environmental Planning Policy (Industry and Employment) 2021 prepared by Planning Ingenuity, dated 11 February 2026.
Barr Property once again sought to amend the application by Notice of Motion dated 24 February 2026 (24 February Motion). An affidavit in the name of Mr Graham McKee reasons that the architectural plans contained in the 20 February Motion failed to depict the removal of certain building elements as are intended. Amended architectural plans prepared by Skyline Architects dated 23 February 2026 and identified as ‘Revision H’ said to remedy this error were annexed.
The hearing listed before me on remitter commenced with Barr Property moving on the 20 February Motion and 24 February Motion. Neither were opposed by Council. Architectural plans annexed to the 20 February Motion were not relied upon for reasons set out at [9]. Instead, the plans otherwise referred to as ‘Revision H’ plans were tendered and marked Exhibit K.
The Council, as the relevant consent authority, approved the amending of the development application as described above under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) subject to Barr Property paying the costs of the Council thrown away as a result of the amendments, as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

In Council’s written submissions (CWS), two primary arguments are made to dispute this proposition:
Firstly, the entirety of the outer wall and new roof shown in Section AA may be considered a parapet, albeit of “unusual thickness” so that the whole of the wall above the level of the existing roof may be considered a parapet, on which the Proposed Sign is erected, and displayed for that matter.
Secondly, to limit a parapet to only that portion of wall above the line of a roof gives rise to anomalous results such as those instances where the intersection of a roof and its bounding wall may not be “even” and so the roof might meet a wall at varying heights and at different points along its length. The consequence of this is that a sign installed at a height close to the top of an external wall may or may not be a “roof or sky advertisement” depending where, along the length of the wall, it is fixed and the roof intersects. To understand a parapet in such a way is said to introduce such complexity to be implausible.
However, the Council’s submission relies firstly on a parapet not being so much a protective wall or barrier at the edge of a roof but an integral part of the roof so that the wall and the roof themselves form the parapet. I do not accept that the arrangement of roof and wall shown in Section AA can be considered so fused as to form a parapet. To read such an arrangement arguably introduces the degree of complexity Council seeks to avoid. To do so requires there to be no distinction between a wall and a parapet.
The Council argues that nothing in the definition of parapet at [26] denotes that part of a wall above the height at which it adjoins the roof.
However, this is answered by reference to the identification of three visible surfaces to a parapet, including an inner face that must be free of, and therefore located above, a roof.
Next, to suggest that a roof and a wall cannot intersect at different levels along its length is to overlook so many instances where that exact scenario is so often played out, such as where a perimeter or party wall rises above a roof that falls differentially to the perimeter or party wall so that the roof is flashed in a stepped fashion into the wall.
I do not accept that such a common scenario can be dismissed simply because it would introduce complexity in the application of the Industry SEPP, that does not itself seek to define the term. This is, in part, because such an understanding proceeds on the assumption that the definition of “roof or sky advertisement” must avoid overlap with the definition of “wall advertisement” where there is no express or implied indication that an advertisement cannot fall within more than one of the types of particular advertisement in Division 3 (the 56A Appeal at [39]).
The Council also hypothesises that a differently shaped parapet wall might fall foul of a definition of parapet preferred by Barr Property, however that is not the application before me and so the geometry is speculative.
Having argued at [33] that nowhere in the definition of parapet is the junction with a roof relevant, the Council goes on to submit that the Court should favour a definition whereby a parapet is that portion of wall above the lowest point of a roof that adjoins. The problem with this is it flies in the face of the common scenario outlined at [35] and with the Council’s submission that an ordinary observer, “if not the entire universe”, would perceive the sign, when viewed from the public domain, to be displayed on a parapet.
The planning expert for the Council, Mr Jeremy Swan, appears to adopt a similar approach, arguing “in practical terms, the building is viewed as having a parapet on the corner of Peel and White Street and introducing a false roof like that proposed does not change this.” (Exhibit 1, par 8.5)
Taken together, I understand the Council to argue that the full height of the wall above the awning might be perceived by passers-by to be a parapet, on which the Proposed Sign is displayed. This is yet another position on from that above, where the lowest point of the roof is urged as a defining datum.
Without an understanding of the roof geometry behind, I accept it may be perceived as such, just as some may refer to the awning above the footpath as a roof which, in some sense, it is. However, terms commonly applied, or misapplied, by passers-by unarmed of the full scope of facts, cannot supplant an assessment by the Court so armed with those facts.
It may be common for a wall to be perceived as a parapet from the public domain while, by virtue of its height above the street, the junction with the intersecting roof behind, is obscured. That does not change what is the parapet and what is not more than a wall that becomes, at the point of intersection with the roof or gutter, a parapet.
Finally, the Council submits that the new roof serves no legitimate purpose and merely seeks to evade the requirements of s 3.19 of the Industry SEPP.
The planning expert for Barr Property, Mr David Waghorn, considers any contention that the new roof serves only to evade the controls at s 3.19 of the Industry SEPP to support Barr Property’s position that the Proposed Sign is not a roof or sky advertisement. (Exhibit 1, par 8.12)
Barr Property submits that the new roof does not seek to evade any control but rather conformity with it, and that there is no need to show a purpose in the new roof beyond achieving conformity with a control.
I cannot accept the submissions made by the Council on the alternative reading of the ‘parapet’ to be taken from the lowest point of the roof, or that it is implausible for a parapet to change its geometry along its length, or that the assembly of wall, roof, eaves and gutter and metal substructure in the south west corner of the Shopping Centre serves to form a parapet.
When Section AA is read with the 3D views at DA-501, re-produced below, the parapet is that portion of perimeter wall, otherwise referred to as a protective wall or barrier at the edge of the roof that displays the three surfaces cited by Preston CJ having an outer face, inner face and top face.
The Proposed Sign is not, therefore, displayed on, or erected on or above, the parapet or eaves of a building.

The first written request on which Barr Property relies is authored by Planning Ingenuity dated 11 February 2026 (the First Request) (Exhibit F). It identifies a number of signs currently displayed on certain elevations of the Shopping Centre denoting ‘Kmart’, ‘Coles’, ‘Liquorland’ and ‘Tamworth Square’ that are identified as wall advertisements for the purposes of the First Request. Additionally, individual tenancies along the perimeter of the Shopping Centre display signs that are below the awning over the footpath.
When the Proposed Sign is counted alongside the existing signs, the First Request identifies 13 wall advertisements on the south-western elevation, five on the south-eastern elevation and two on the southern elevation.
I note here that in the Initial Appeal the Council’s planning expert, Mr Jeremy Swan, considered those signs cited at [60] to be business identification signs, and not wall advertisements while Barr Property submitted 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.
As it is relevant to the Court’s consideration of the First Request, I state my agreement here that the signs for ‘Kmart’, ‘Coles’ and ‘Liquorland’ may be defined as wall advertisements, but as the nature of the business carried on by the person at the premises or place at which the sign is displayed is not displayed, they are not business identification signs. However, the signs displaying ‘Tamworth Square’ are, in my view, most sensibly defined as building identification signs as they identify or name a building and include a logo or other symbol, that being a logo alongside the text “Charter Hall”, but which does not constitute general advertising of products, goods or services.
The First Request relies on what is commonly known as the first and fourth ‘Wehbe ways’ to argue that compliance with the development standard at s 3.20(1) of the Industry SEPP is unreasonable or unnecessary in the circumstances of this case.
The first way of demonstrating that compliance is unreasonable or unnecessary is to demonstrate that the objectives of the standard are achieved notwithstanding non-compliance with the standard.
The fourth way is to argue that the relevant standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents that depart from the standard. To this end, the First Request relies on the “proliferation of signage above and below the awning on the building, coupled with the proliferation of signage elsewhere throughout the TRC (Tamworth Regional Council) area…”. Where more than one wall advertisement or, indeed, multiple business and building identification signs have been approved on a building elevation, it is to be taken that the standard has been virtually abandoned or destroyed.
In the first instance, the objectives of the standard are not found in s 3.20 of the Industry SEPP. Instead, the First Request adopts the aims and objectives found at s 3.1(1) of the Industry SEPP, that are in the following terms:

The Council submits that the four written requests share a common defect by relying on the aims and objectives at s 3.1 of the Industry SEPP rather than more specific objectives of the particular standards at s 3.20.
The Council argues in the first instance that the absence of specific objectives at s 3.20 does not mean there are no specific objectives sought to be achieved by the adoption of each of those standards, and secondly that the aims and objectives at s 3.1 of the Industry SEPP may be relevant to the content and application of the development standard, but do not serve to exhaustively state the objective or objectives to be achieved in adopting such a standard.
The Council submits the relevant objectives must amount to something greater than the aims and objectives of the Chapter, and the Assessment criteria set out in Sch 5 of the Industry SEPP.
When the terms of both s 3.20 and Sch 5 are understood together, the Council argues that the Court must also consider whether the proposal limits the size, number and prominence of wall advertisements and business of building identification signs in a manner reflective of the intent behind the adoption of s 3.20 of the Industry SEPP.
Council’s submissions are not clear as to the origin of the assessment it proposes as to whether the proposal limits the size, number and prominence of wall advertisements, other than to assume Council proffers this as an underlying objective of the standard at s 3.20.
The submission is similar to the statement on p 7 of the First Request that “the general intent of the requirements under Clause 3.20 would be to limit the size and number of wall advertisements for each elevation to minimise the impact of visual clutter on the character of the streetscape fronting that elevation.”
I understand reference to the size, number and prominence of wall advertisements to be not underlying objectives but instead an allusion to the relevant standards at s 3.20 of the Industry SEPP that appear, in short hand, to seek to control the number (subss (1) and (2)(g)), size (subs (2)(b)) and prominence (subs (2)(c)) of such signs.
Nonetheless, I accept that absent an objective or objectives at s 3.20 of the Industry SEPP, the aims and objectives of Ch 3 of the Industry SEPP are reasonable objectives to adopt as underlying objectives of the standards in respect of wall advertisements. In arriving at this conclusion, I am assisted by the terms of s 3.11 of the Industry SEPP which provide, at s 3.11(1)(a), that a consent authority, or the Court on appeal, must not grant consent unless an advertisement is consistent with the objectives set out at 3.1(1)(a) of the Industry SEPP.
In accepting those aims and objectives, I note that not all of the provisions at s 3.1 are applicable to the proposed development or to the site the subject of the development application. First, this is anticipated by reference at s 3.11 to those objectives at s 3.1(1)(a). Second, it is not uncommon for objectives to be only relevant in part. For example, it is not uncommon for certain objectives to be particularised to particular areas within a local government area or with particular characteristics that may not apply to the development the subject of a development application. In such circumstances it is common to note the lack of relevance to that objective, as in this case where some of the matters at s 3.1 titled ‘aims, objectives etc’ are relevant to transport corridors, which is not applicable to the site the subject of these proceedings, and are objectives outside s 3.1(1)(a) to which regard must be had.
In respect of the objective at s 3.1(1)(a)(i) to ensure that signage (including advertising) is compatible with the desired amenity and visual character of an area, it must be said the Court dealt with the character of Peel Street and visual impact in the Initial Appeal.
The First Request distinguishes that which is ‘compatible’ from ‘sameness’ as it is understood in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191, and where the character of the Tamworth CBD is evolving. That evolution is informed by the Tamworth LEP that does not currently impose height controls in the CBD and provides for a floor space ratio standard (FSR) that permits development up to 6:1.
The First Request also observes that signage is permitted in the E2 Commercial Centre zone in which the site is located, and that an array of signage is evident above and below the awning in Peel Street. Below the awning, under awning signs, wall signs and window signs visually clutter. Above the awning, signage is typically larger, less cluttered, structured and illuminated. For example, the Proposed Sign is 12m from the existing ‘Tamworth Square’ signage on Peel Street and 20m to the Tamworth Square sign on White Street.
While the Proposed Sign provides a form of advertising not specifically contemplated by local planning controls, its form responds to its corner location, is not jarring when viewed alongside existing signage and provides visual interest and vibrancy on what is otherwise a largely blank wall.
Finally, the proposed development also includes the removal of three existing signs from the fascia of the awning that will result in greater consistency in how the Shopping Centre presents to the street.
The Court considered the evidence of the experts in respect of the desired amenity and visual character of the area in the Initial Appeal at [58]-[87] and set out its findings at [123]-[133]. Those findings are unchanged and I accept the Proposed Sign is consistent with the objective to ensure that signage is compatible with the desired amenity and visual character of an area.
In respect of the objective at s 3.1(1)(a)(ii) seeking signage that provides effective communication in suitable locations, the First Request relies on the permissibility of signage in the E2 zone as an indicator the location for signage is suitable, and the 10 second dwell time enabled by the digital nature of the advertising displayed on the Proposed Sign to satisfy the objective of effective communication. Additionally, the signage content, movement, colours, lighting and the like comply with the Transport Corridor Advertising and Signage Guidelines (November 2017) (Transport Signage Guidelines).
Next, the objective of achieving a high quality design and finish at s 3.1(1)(a)(iii) is achieved by the curvature of the Proposed Sign around three elevations while remaining below the level of the parapet so that the Shopping Centre remains the highest element. The structure supporting the Proposed Sign is to be painted a dark recessive colour and will not be readily discernible from the public domain. An aspect of the design and finish is also said to be found in the technical features of the advertising such as the dwell and transition time, the switching to black between the hours of 11pm and 6am, dimmable control and ability to automatically adjust the luminance for optimal viewing conditions.
In respect of the objective at s 3.1(1)(b) of the Industry SEPP, signage, but not content, is regulated under Pt 4 of the EPA Act by seeking consent for digital advertising with a 10 second dwell time, which aligns with content requirements of the Australian Association of National Advertisers (AANA) Code of Ethics and those restrictions detailed in the Management and Maintenance Plan, marked Exhibit M in the Initial Appeal. While the terms of the First Request appear to address the content, and not the regulation of signage, I read the objective at s 3.1(1)(b) to be not an end in itself but instead be explanatory of the central purpose of the provisions at Ch 3 of the Industry SEPP, as shown in Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61, at [49]. Rather, the regulation of signage is a means to achieve the goals identified in s 3.1(1)(a), namely to ensure that signage (including advertising) is compatible with the desired amenity and visual character of an area; communicates effectively in suitable locations; and is of high quality design and finish.
The objective at s 3.1(1)(c) of the Industry SEPP is achieved by a limit of 15 years being imposed with the consent.
Finally, while the objectives at s 3.1(1)(d) and (e) deal with advertising in and adjacent to transport corridors, which is not the case with this site, the First Request asserts consistency with that part of the objective for which public benefit is sought to be derived by dedicating 5% of screen time for Council purposes, public service announcements, community or charitable purposes.
I am content that the aims and objectives at s 3.1 of the Industry SEPP are objectives relevant to the purpose of demonstrating compliance with the standards at s 3.20 of the Industry SEPP and are achieved.
I am also satisfied that the size, location and illumination of the Proposed Sign, while not the same as those signs currently displayed on the façade of the Shopping Centre, recorded in images on DA-103 (Exhibit K), are characteristics compatible with the desired amenity and visual character of an area. I note the Reduced Levels shown on the images demonstrate the Coles sign is 1.5m in height, being not dissimilar to the height of 2.1m for the Proposed Sign. Furthermore, that its digital, changeable nature does not render it incompatible with existing signage and does serve to provide effective communication in a location that permits signage and advertising, is visible from a variety of locations and is of high quality design and finish.
As such, I am satisfied that the First Request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) of the Tamworth LEP notwithstanding that more than one wall advertisement is proposed to be displayed per building elevation.
‘Building elevation’ is defined at s 3.20(3) of the Industry SEPP in the following terms:

There is no question in my mind that the intent and proper application of the term elevation in the provision at s 3.20(1) is for each elevation of a building to be identified separately so that each elevation is permitted one wall advertisement.
For the reasons advanced by the First Request at [66], I am also persuaded that the number of existing wall advertisements displayed on the Shopping Centre supports the proposition that the standard that otherwise limits the number of such advertisements to one per building elevation has been virtually abandoned or destroyed by those signs that I have no reason to believe are other than lawfully erected signs approved by the Council.
The Council, in its written submissions, disputes such a conclusion because, firstly, “an organ of local government cannot cause the abandonment of a development standard whose reach covers the entire State” (CWS, par 36). Secondly, in the alternative, the First Request has failed to address the question of whether compliance with the standard is unreasonable or unnecessary by reason of the standard having been abandoned or destroyed.
In respect of the first of Council’s submissions, it is “Council’s own actions in granting consents departing from the standard” that is the focus of the explanation by Preston CJ of the ‘fourth way’ (Wehbe v Pittwater Council [2007] NSWLEC 827 (“Wehbe”) at [47]). Wehbe favourably cites the earlier decision in North Shore Gas Co. Pty Ltd v North Sydney Municipal Council, unreported, LEC No 10185 of 1986, 15 September 1986, Stein J at pp 11-12 in which compliance is found to be unnecessary given the standard in that case had “been severely mauled if not abandoned by Council's own conduct.” No implication need be inferred on the application of the standard at a state-wide scale.
In respect of the second of Council’s submissions, I note the ‘Fourth Wehbe way’ is predicated on the basis that compliance is rendered unreasonable or unnecessary if it can be demonstrated that Council’s decision to grant consents departing from the standard are taken to have virtually abandoned the relevant standard. The First Request does not ask whether decisions by the Council can result in abandonment because it asserts it to be the case.
Next, the First Request sets out eight environmental planning grounds it asserts are sufficient to justify the contravening of the standard at s 3.20 of the Industry SEPP. These may be summarised as follows:
There is an absence of adverse impacts arising from the breach of the standard at s 3.20(1) of the Industry SEPP, such as overshadowing or privacy, noise or views.
Next, if the existing signs fixed to the Shopping Centre described at [60] and [79] are not defined as wall advertisements, then there is no breach of the standard at s 3.20(1) of the Industry SEPP. However, if those signs are found to be wall advertisements, the Shopping Centre already breaches the limitation on one wall advertisement per elevation and the proliferation of signage creates a different context to that anticipated by the standard where the baseline assumes no other wall advertisement on the building.
The size of the Proposed Sign, when considered as a proportion of the frontage to the Shopping Centre along both Peel and White Street equates to approximately 3% of the total façade that measures 82m in length to Peel Street and 170m to White Street. Furthermore, the two existing ‘Tamworth Square’ signs are set forward of the Proposed Sign so that they read on a different visual plane and are only seen with the Proposed Sign when viewed from a distance, against the eclectic nature of existing development, which serves to reduce the visual impact of the Proposed Sign.
When viewed in context, the Proposed Sign is not visually jarring or unharmonious within the commercial setting. Instead, for reasons similar to those at [80] and the reasons set out at [125]-[129] of the Initial Appeal, the Proposed Sign is compatible with the existing and future character of the Tamworth CBD.
Variation of the standard will, in this instance, permit well-located and well-designed digital advertising to contribute visual interest within the streetscape and reinforce the commercial and retail prominence of the Tamworth CBD that will have a positive influence on the character without establishing any precedent given a similar approval at 131 Bridge Street, West Tamworth.
The Proposed Development provides not only for the Proposed Sign but also for the removal of three awning signs that will reduce visual clutter and ensure consistency in presentation of the awning to the Shopping Centre.
For reasons that are virtually identical to the technical features described at [84], the Proposed Sign is superior to static signage, with characteristics that are not contemplated in the Tamworth LEP or the Tamworth Development Control Plan 2010.
Finally, the proposal will provide a dynamic commercial activity to the Tamworth CBD that is anticipated by the relevant Land Use Table and where the particular location is consistent with the objective to provide effective communication and where the orderly and economic use and development of land is achieved.
While my consideration of the matters in cl 4.6(4)(a)(i) of the Tamworth LEP requires that I confine my consideration to the adequacy of the First Request, I note acknowledgement by Barr Property in submissions that the environmental planning grounds advanced in a written request must focus on the aspect or element of the development that contravenes the development standard, not simply promote the benefits of carrying out the development as a whole: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (“Initial Action”) at [24]; Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].
In this instance, a substantial aspect or element of the development is the Proposed Sign itself as it contravenes the standard at s 3.20(1) limiting the number of wall advertisements to one per building elevation. I note the First Request addresses itself to the Proposed Sign with only passing references to the new roof and almost no reference to the increase in wall height and parapet to the Shopping Centre, being elements comprising the development the subject of the development application. As such, the Frist Request does address the particular aspect or element of the breach sought to be justified, being the Proposed Sign.
The Council submits the absence of adverse impacts arising from a contravention is no more than to argue an “absence of grounds for condemning the contravention”. Instead, justifying a contravention requires some planning matter that weighs in favour of permitting a contravention to occur. In short, there must be a positive reason for allowing it to occur (CWS, par 38).
As I read the First Request, it proceeds on more than an absence of impacts, although this has been accepted as an environmental planning ground by the Court: Initial Action at [94(c)].
I accept the environmental planning ground advanced in the First Request that the desired amenity of the Peel Street and White Street area is informed by the consents granted to other wall advertisements on the same building elevations that establish a different context to that anticipated by the standard at s 3.20(1). In my view it is reasonable to argue that the departure arises because the context in which the departure is proposed is other than the context assumed by the standard.
Put another way, the departure from the standard is due in part to the prior consents that also depart from the standard but which must be an aspect of the desired amenity and visual character of this area, and where the desired future character of the neighbourhood or area is shaped not only by the development standards themselves, but also other factors, including approved development that contravenes the development standard in circumstances similar to Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115, at [63].
I also accept the ground advanced at [97(3)], to the effect that the Proposed Sign is only viewed alongside the next nearest signs, being building identification signs, when viewed from a distance and where the separation between the next nearest signs is 12m on the Peel Street elevation and 20m on the White Street elevation. As such, the contravention is a function of the unusual size and scale of the Shopping Centre on which the Proposed Sign is displayed. The First Request asserts a frontage of 82m to Peel Street and 170m to White Street (inclusive of the car park), is a factor. I accept the same outcome, or even a greater number of wall advertisements, would be permitted on Peel Street and White Street if the frontage comprised a collection of buildings because one wall advertisement would be permitted per building elevation to each of those buildings comprising the same frontage.
While that is clearly not the case in this matter, and the Shopping Centre is one building on which a number of wall advertisements are displayed, I accept the ground advanced at [97(3)] is an environmental planning ground.
Accordingly, the Court is able to form an opinion of satisfaction that the First Request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b) of the Tamworth LEP.
Unlike the opinion of satisfaction required of the Court in respect of cl 4.6(3)(a) and (b), the opinion of satisfaction under cl 4.6(4)(a)(ii) differs from the first opinion of satisfaction under cl 4.6(4)(a)(i) in that the consent authority, or the Court on appeal, must be directly satisfied about the matter in cl 4.6(4)(a)(ii), not indirectly satisfied that the applicant’s written request has adequately addressed the matter in cl 4.6(4)(a)(ii): Initial Action at [26].
Additionally, and for the reasons shown in RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [51], the Court, in exercising the functions of the consent authority, must “in fact” be satisfied of the above matters. The state of satisfaction that compliance is “unreasonable or unnecessary” and that there are “sufficient environmental planning grounds” to justify the contravention must be formed by reference to the cl 4.6 request. Whilst the evidence in the proceedings may assist in providing context to the request and in considering its adequacy, it does not supplement or supplant the content of the request.
However, the state of satisfaction that the proposed development is in the public interest (cl 4.6(4)(a)(ii)) can be reached by considering the evidence before the Court, without being limited to what is contained in a written request.
In doing so I note that when reference is had to Figure 9-11 of the Visual Impact Assessment prepared by Mr John O’Grady and appended to the joint report of the Urban designers and planners, two building identification signs would appear on the Peel Street elevation at the entry; one on the roof gable feature above the awning, and a second below the awning above the entry to the building from Peel Street. Likewise, a similar arrangement was evident when the Court undertook the onsite view in the Initial Appeal. In the Court’s mind, there are at least four building identification signs on the two elevations fronting Peel Street and White Street and so contribute to the desired amenity and visual character of the area, being the first objective of the standard at s 3.20(1)(a) of the Industry SEPP. Once again, the Court was not presented with any evidence that the signage on the Shopping Centre are other than approved.
The First Request asserts that the proposal is not antipathetic to the objectives of the E2 zone and is specifically consistent with the first objective of the zone as it will strengthen the role of the commercial centre as a centre of business, promoting business and goods and services within the Tamworth CBD.
According to the First Request, the placement of the Proposed Sign above the awning does not alter the accessibility or amenity of pedestrians, and can only serve to allow more active frontages that attract pedestrian traffic.
For completeness, the objectives of the E2 zone are identical to those considered at [146] of the Initial Appeal, and are in the following terms:

The Proposed Sign exceeds the development standard at s 3.20(2)(b)(iii) that applies a maximum size to a wall advertisement expressed as a maximum of 20% of the above ground elevation.
A second written request, prepared by Ingenuity Planning dated 11 February 2026 (the Second Request) (Exhibit G) states the size of the Proposed Sign, when expressed as a proportion of the southern elevation is 28.5% and so exceeds the standard at s 3.20(2)(b)(iii).
The Second Request relies on the first ‘Wehbe way’ to argue that the Proposed Sign achieves the objectives of the standard notwithstanding the non-compliance and so compliance is unreasonable or unnecessary.
For reasons identical to those at [67]-[77], the Second Request relies on the objectives at s 3.1(1) of the Industry SEPP. The grounds on which consistency with the objectives is argued are also identical to those advanced in the First Request, other than particular references to the size of the Proposed Sign as a proportion of the relevant elevation.
In answer to the first objective at s 3.1(1)(a)(i), the exceedance of the 20% standard, when assessed against the area of the southern elevation, is minor and represents no more than 3% of the total elevational length of the Shopping Centre of 252m.
I note here the Second Request acknowledges the frontage length of 252m is not confined to the length of the building elevations, but is a figure that includes the frontage of the car park to White Street that presents a wall to the White Street frontage and which may or may not meet the definition of building elevation at s 3.20(3) of the Industry SEPP.
I accept and am satisfied that the objectives at s 3.1(1)(a) of the Industry SEPP are achieved notwithstanding the non-compliance with the standard at 3.20(2)(b)(iii) for those reasons summarised above.
Likewise, the environmental planning grounds advanced in the Second Request are virtually the same as those at [97], but for a focus on the size, and not the number of wall advertisements on the Shopping Centre.
One such variation from the environmental planning grounds at [97] is the further development of the rationale at [123] above to state that the southern elevation is an elevation separate and distinct from the south-eastern and south-western elevations, the area of which is 32.34m2 and on which 55% of the Proposed Sign is displayed, resulting in an exceedance of 8.5% beyond the 20% maximum permitted by the standard.
However, the Second Request argues that the southern elevation, being a chamfered corner, is in effect a ‘quirk’ that arises because of a misalignment between the building layout and the lot boundary at this particular corner of the site. That is, the chamfer that gives rise to the southern elevation forms the hypotenuse of a triangle otherwise bounded by the south-eastern and south-western lot boundaries that extend into the footpath. As such, future redevelopment could seek to “square off” the corner and dispense with the southern elevation.
Whether or not a future development might or might not propose, or obtain approval, to extend to the lot boundary and so remove the southern elevation, I accept that the contravention occurs at the southern elevation because of the deviation of the building elevation from the lot boundary. If the corner was not chamfered but adopted the alignment of the lot boundary at this corner, no exceedance of the standard at s 3.20(2)(b)(iii) regulating the maximum size of the sign would occur. Of course, in such an event, it is likely another of the standards under s 3.20(2)(b) would apply but on the basis of the dimensions of the frontage to Peel Street and White Street described in the Second Request, it is probable that no exceedance to those standards would result.
In my view, the above represents sufficient environmental planning grounds to justify the contravention of the standard at s 3.20(2)(b)(iii) and so I am satisfied that the Second Request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b) of the Tamworth LEP.
In considering whether the Proposed Sign is in the public interest because it is consistent with the objectives of the E2 zone and the objectives of the standard as is required of me by cl 4.6(4)(a)(ii) of the Tamworth LEP, I note the Second Request sets out identical reasons for consistency with the zone objectives as at [111]-[115] with which I am satisfied for the identical reasons.
Additionally, I adopt those reasons at [116]-[117] that summarise the consideration given to the Secretary’s concurrence that is the focus of cl 4.6(5) of the Tamworth LEP.
For those reasons above, I am satisfied that the Second Request should be upheld.

In the event the Proposed Sign is found to be a wall advertisement, as has been found at [52], Barr Property relies on a third written request prepared in accordance with cl 4.6 of the Tamworth LEP by Ingenuity Planning dated 11 February 2026 (Third Request) (Exhibit H) that seeks relief from the provisions at s 3.20(2)(c) of the Industry SEPP that would otherwise limit the protrusion of the Proposed Sign to no more than 300mm from the outer face of the wall on which it is displayed.
According to the Third Request, the Proposed Sign:
protrudes between 590-1170mm from the wall elevation, exceeding the development standard at s 3.20(2)(c) by a maximum of 870mm; and
is consistent with the objectives of the standard at s 3.20(2)(c) notwithstanding it does not comply with the standard itself. As such, it is unreasonable or unnecessary to comply with the standard that limits the protrusion of a wall advertisement to 300mm.
For the same reasons set out earlier in this decision at [67]-[76], the objectives of the standard are not explicit and so the Third Request relies on consistency with those objectives at s 3.1(1)(a) of the Industry SEPP, which are identified in the matters for consideration at s 3.11 of the Industry SEPP.
While the reasons set out for consistency with the objectives are virtually identical to those at [77]-[89], the reasons vary to the extent the protrusion is said on p 8 to be located partially in front of the south-western, south-eastern and southern elevation of the Shopping Centre, and where the maximum protrusion will not be appreciated from the public domain. Also relevantly, the curvature of the Proposed Sign around three elevations ensures the exceedance does not result in a sign that is incompatible with the character of other signs in the locality (the first objective at s 3.1(1)(a)), and responds to the corner by that curvature so as to effectively communicate on one curved plane rather than three different planes should the Proposed Sign otherwise adopt the chamfered alignment of the building that would be the result of protruding 300mm or less from the wall, in answer to the second objective at s 3.1(1)(a).
The reasons set out in the Third Request for consistency with the third objective at s 3.1(1)(a) are identical to those at [84]. Likewise, consistency with objectives at s 3.1(1)(b), (c), (d) and (e) are identical to those reasons at [85]-[87].
I accept that the protrusion of the Proposed Sign in excess of 300mm beyond the face of the wall to the Shopping Centre does not give rise to an incompatibility when the size, location and design of the existing wall advertisements are considered. This is primarily because, while the existing wall advertisements may not protrude more than 300mm, the geometry of the Shopping Centre at the location on which the Proposed Sign is fixed is chamfered and so the means by which the Proposed Sign is fixed to the Shopping Centre varies from that used by existing signs.
I also accept the curvature of the Proposed Sign, which contributes to the exceedance, is also in part a function of the particular geometry of the location in which the sign is proposed. The Engineering Drawings (Exhibit B) show the Proposed Sign fixed at locations on the south-western and south-eastern building elevations, and a curved structure supporting the span of the screen between these locations where it traverses the southern elevation and protrudes by 1170mm.
The upshot of the above is that I accept a single curved plane provides effective communication in a suitable location because that plane resolves the chamfered location in which it is proposed, allowing an advertisement to be displayed on that single plane, and address the intersection in a manner that conforms to Transport Signage Guidelines.
Finally, I accept that the design and finish of the Proposed Sign is high quality because of its position below the top of the parapet that subordinates the sign to the built form and due to the unobtrusive structural frame, finished in a dark and recessive colour that will substantially match the finish of the Proposed Screen.
As in the First and Second Request, the environmental planning grounds advanced in the Third Request are virtually the same as those at [97], but for a focus on the protrusion of the Proposed Sign from the Shopping Centre.
One such variation from the environmental planning grounds at [97] is the exception permitted at s 3.20(2)(c) for a protrusion greater than 300mm for reasons of occupational health and safety standards. While it is commonly held between the parties that no such standards apply to require a distance greater than 300mm, the Third Request asserts that a protrusion of more than 300mm is provided for in the standard sought to be varied. Furthermore, the protrusion proposed will not be readily discerned because of the obscuring effect of the awning.
I accept this is an environmental planning ground as the standard anticipates a protrusion greater than 300mm for reasons that may not be obvious or evident to a viewer and yet comply with the standard notwithstanding such a protrusion.
For the reasons above, I am satisfied that the Third Request adequately addressed the matters required to be demonstrated by cl 4.6(3) of the Tamworth LEP.
As stated previously, the Council accepts that the Proposed Sign is consistent with the objectives of the E2 zone but, for the reasons argued at [71]-[75], it maintains the objectives of the development standard have been misidentified and, as a consequence, the Court should find the Third Request fails to demonstrate consistency with the correct objectives and as such, the proposal cannot be said to be in the public interest.
However, as stated at [90]-[96], I have found the objectives to be correctly identified and adequately addressed by the first ‘Wehbe ways’ in the Third Request. I am satisfied that as the proposed development is consistent with the objectives of the standard and those of the E2 zone, the proposal is in the public interest, in accordance with cl 4.6(4)(a)(ii) of the Tamworth LEP.
Having also considered those matters at cl 4.6(5) of the Tamworth LEP, I do not understand the contravention of the development standard at s 3.20(1) of the Industry SEPP to raise any matter of significance for State or regional environmental planning, nor for there to be any particular public benefit of maintaining the development standard that would stay application of the flexibility afforded by the provision at cl 4.6.
For those reasons above, I am satisfied that the Third Request should be upheld.

As stated at [52], the Proposed Sign is a wall advertisement. Section 3.20(2)(g) permits the grant of consent for such a sign where “a building identification sign or business identification sign is not displayed on the building elevation.”
While the Court considers those signs at [63] to be wall advertisements and not a sign of a kind to which subs (2)(g) applies, at least two signs located at entry points to the Shopping Centre are consistent with the definition of ‘building identification signs’. As such, consent for a wall advertisement is precluded by subs (2)(g) of the Industry SEPP.
Barr Property relies upon a written request prepared by Planning Ingenuity Pty Ltd in accordance with cl 4.6 of the Tamworth LEP and dated 11 February 2026 that seeks to justify the contravention of the standard at s 3.20(2)(g) (Exhibit J) (the Fourth Request).
As stated earlier in this decision, the objectives of the standard are not explicit and so the Fourth Request relies on consistency with those objectives at s 3.1(1)(a) of the Industry SEPP, which are identified in the matters for consideration at s 3.11 of the Industry SEPP.
While the reasons set out for consistency with the objectives are virtually identical to those at [77]-[89], the reasons of particular relevance here are by reference, on p 9, to the distance between those wall advertisements for ‘Kmart’ and ‘Coles’ above the awning, and the Proposed Sign that is said to assist in achieving compatibility, as does a distance of 12m to the ‘Tamworth Square’ sign on the Peel Street elevation and a distance of 20m to the ‘Tamworth Square’ sign on the White Street elevation, notwithstanding the non-compliance. Furthermore, the character of signage above the awning varies by virtue of its proliferation and “cluttered appearance” from the character of signage and advertising below the awning.
Additionally, the Fourth Request also argues that the underlying objective or purpose of the standard would be defeated or thwarted if compliance was required and therefore compliance is unreasonable. The position put forward by the Fourth Request is that the Shopping Centre, erected in the late 1980’s, already contains a number of business identification signs and other advertising signs that tenants are entitled to display, and so is unable to comply with the standard at s 3.20(2)(g) that would otherwise seek to limit the type or number of signs.
It should be noted that the Fourth Request understands the underlying objective or purpose to be the provision of the Proposed Sign. However, this is not the objective or purpose to which the third ‘Wehbe way’ alludes. Instead, it is the underlying objective or purpose of the standard that is said to be thwarted or defeated if compliance is required. Given the misdirection evident in the Fourth Request, I will not further consider this aspect of the Fourth Request.
However, I am satisfied that the Fourth Request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) of the Tamworth LEP notwithstanding two existing building identification signs are currently displayed on the Shopping Centre.
The environmental planning grounds advanced in the Fourth Request are also somewhat identical to those already summarised, except in three related respects:
Firstly, the standard at subs (2)(g) imposes a limit on building and/or business identification signs on each elevation, while “there is no numerical restriction on the number of ‘wall advertisements’ or other types of permissible ‘Particular advertisements’ under Division 3 of the I&E SEPP” (p 11). Accordingly, any number of large signs are contemplated on each elevation that obviously produces a result at odds with the outcome sought by compliance with the standard.
Secondly, the elevations fronting Peel Street and White Street already contain a number of existing signs that may be properly described as wall advertisements as well as existing building identification signs. As such, the context already departs from that expected by the standard.
Thirdly, while the scope of the standard at s 3.20(2)(g) of the Industry SEPP extends to regulate the number of wall advertisements, it does not apply to business or building identification signs according to the terms of s 3.7 of the Industry SEPP. So understood, the Industry SEPP would appear to regulate the proliferation of wall advertisements, but not business or building identification signs. Put another way, the Fourth Request argues that where a wall advertisement already exists, there is no restriction on the addition of more business or building identification signs.
The Court notes the excerpt from the Fourth Request at [159(1)] would appear to overlook the numerical restriction on the number of wall advertisements imposed by s 3.20(1) of the Industry SEPP and which is considered at some length at [58]-[118]. As such I cannot accept the premise of this environmental planning ground.
However, I do accept that a context or condition that exists on a site that is already at odds with the outcome desired by application of the standard is a reasonable basis for an environmental planning ground. The Shopping Centre currently has more than one wall advertisement per building elevation, and also displays at least two building identification signs. The Court has found there to be neither one wall advertisement per building elevation to which the control at subs (1) is concerned, nor is there an absence of building identification signs to which the control at subs (2)(g) is directed.
On this basis, I am satisfied that there are sufficient environmental planning grounds to justify the contravention of the standard and that those matters required to be adequately addressed by cl 4.6(4)(a)(i) of the Tamworth LEP are so addressed.
As stated previously, the Council accepts that the Proposed Sign is consistent with the objectives of the E2 zone and I have found, at [90]-[96], the objectives of the standard to be correctly identified and adequately addressed by the first ‘Wehbe way’ in the Fourth Request. I am satisfied that as the proposed development is consistent with the objectives of the standard and those of the E2 zone, the proposal is in the public interest, in accordance with cl 4.6(4)(a)(ii) of the Tamworth LEP.
In arriving at this state of satisfaction, I note, in terms similar to those at [104], the unusual length of the frontage of the Shopping Centre on which a multitude of signage and advertising is displayed. Whether reference is had to Figure 9 of the joint report of the urban design and planning experts (Exhibit A, Tab 4) or Figure 1 of the joint report of the heritage experts (Exhibit A, Tab 2), or to the Survey at Exhibit D, re-produced in part below, the scale of the Shopping Centre stands in distinct contrast to the finer grain of retail to the approximate north further up Peel Street.
The Fourth Request grounds certain of its arguments in the number of wall advertisements displayed, their size and the separation between them on the building elevations.
When the subdivision pattern on Peel Street is properly understood, the scale of the Shopping Centre, when compared to the subdivision pattern to the remainder of this section of Peel Street appears to be somewhat relevant. I consider the Proposed Sign to be “in scale with the buildings to which it is fixed.” Such a test is commended to the Court by Ms Lisa Trueman at p 11 of the joint report of the heritage experts, citing guidance for signage taken from the Tamworth Heritage Main Street Study 2017.
The Court can do no more than speculate that it may be this unusual disparity in scale that has informed the consent granted previously by the Council for the signage and advertising currently displayed on the Shopping Centre. It may also be relevant that a minimum building street frontage of 25m applies to certain uses proposed on land in the E2 zone at cl 7.15 of the Tamworth LEP. When this provision is taken into account, the separation distance of 12m and 20m to the Tamworth Square signage from the Proposed Sign are within what is to be expected by such a building frontage standard, and where development to which cl 7.15 is directed may also display a building identification sign.
Having also considered those matters at cl 4.6(5) of the Tamworth LEP, I do not understand the contravention of the development standard at s 3.20(2)(g) of the Industry SEPP to raise any matter of significance for State or regional environmental planning, nor for there to be any particular public benefit of maintaining the development standard that would stay application of the flexibility afforded by the provision at cl 4.6.
For those reasons above, I am satisfied that the Fourth Request should be upheld.

Barr Property and Planning Pty Ltd v Tamworth Regional Council (No 2)

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

The development the subject of the development application

The proper characterisation of the Proposed Sign

The interpretation of “roof or sky advertisement”.

The parapet is identified

The interpretation of “wall advertisement”

Clause 4.6 – only one wall advertisement may be displayed per building elevation

Clause 4.6 – the advertisement exceeds size

Clause 4.6 - the advertisement protrudes more than 300mm millimetres from the wall

Clause 4.6 – a building identification sign is displayed on the building elevation

Whether exhibits design excellence

Schedule 5 of the Industry SEPP

Conclusion

Orders

T Horton

Commissioner of the Court

Parties

Legislation Cited (7)

Cases Cited (10)