Bayside Council v Outdoor Systems Pty Limited

Land and Environment Court (NSW)|2024-01-29|Before: Pritchard J

WLEC 23 PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Bayside Council (Applicant) Outdoor Systems (First Respondent) The Eastlake Golf Club Limited (Second Respondent) Representation: Counsel: J Lazarus SC (Applicant) S Berveling (First Respondent) Submitting Appearance (Second Respondent)

Solicitors: HWL Ebsworth Lawyers (Applicant) Piper Alderman (First Respondent) Piper Alderman (Second Respondent) File Number(s): 2023/92579 Publication restriction: Nil

Introduction

There is a pedestrian footbridge spanning Wentworth Avenue, Pagewood, the footings of which are located on Lot 1 DP 1144655 (the footbridge). The footbridge is otherwise known as the Eastlake Golf Club footbridge.
Affixed to either side of the footbridge are digital advertising signage panels (the signage). The signage is operated by the first respondent, Outdoor Systems Pty Ltd (Outdoor Systems).
The applicant, Bayside Council (Council), commenced these proceedings by summons dated 21 March 2023 seeking declarations and orders concerning the signage located on the footbridge.
Following without prejudice discussions, Council and Outdoor Systems have reached agreement in relation to declarations and orders which they ask the Court to make.
The second respondent, the Eastlake Golf Club Limited (the golf club), has filed a submitting appearance. Accordingly references to 'the parties' in these reasons for judgment are a reference to Council and Outdoor Systems.

The proposed declarations and orders seeking injunctive relief

The parties seek the following declarations and orders by consent: The Court declares that: 1. Development Consent 05/123, granted by the Land and Environment Court on 30 November 2006 and as subsequently modified (the Consent) ceased to be in force as at 30 November 2021 to the extent that it authorised advertising signage on the pedestrian bridge referred to in declaration 2 below. 2. In breach of s 4.3 of the Environmental Planning and Assessment Act 1979, the First Respondent has since 30 November 2021 carried out development which is prohibited by the Bayside Local Environmental Plan 2021, namely using the digital advertising signage affixed to both sides of the pedestrian bridge constructed over Wentworth Avenue, Pagewood, as shown on the photographs annexed and marked "A" and aerial photograph annexed and marked "B" (Signage). The Court orders that: 1. The First Respondent by itself, its servants and/or agents is restrained from operating or using the Signage for the purposes of advertising, including any associated use formerly approved by the Consent. 2. The operation of Order 1 is stayed until 31 December 2024. 3. The First Respondent is to pay the Applicant's costs in the agreed sum of $18,000 within 28 days of the making of these orders. 4. Any party has liberty to restore on three days' notice until 31 December 2024 to make an application to the Court to extend the time period in Order 2 above. The Court notes that: 1. The Applicant will not unreasonably withhold its consent to any application by the First Respondent to extend the dates in Orders 2 and 4 above.

Material relied upon by Council

At the hearing, in support of the proposed declarations and orders, Council: 1. relied on written submissions filed 5 December 2023; 2. tendered an Agreed Statement of Facts, the facts being agreed facts within the meaning of s 191 of the Evidence Act 1995 (NSW), signed on behalf of Council and Outdoor Systems and filed 23 November 2023; and 3. read the affidavit of Felicity Jane Eberhart, a town planner in the employ of Council filed 6 June 2023, and tendered the exhibit thereto.
The respondent did not rely on any written submissions or evidence.

The Agreed Statement of Facts, and material relied on by Council

The parties agreed the following facts for the purpose of Monday's hearing in relation to the declarations and orders they seek by consent, and senior counsel for Council took me to material capable of establishing those facts to the Court's satisfaction.
The applicant is a body politic of the State of NSW constituted under the Local Government Act 1993 (NSW) (LG Act), is entitled to take proceedings in its own name, and, as a council constituted under the LG Act, has the functions of a consent authority under the Environment Planning and Assessment Act 1979 (EPA Act) for the relevant local government area.
The applicant was previously known as Botany Bay City Council until the coming into force of the Local Government (Bayside) Proclamation 2016 on 9 September 2016.
The first respondent, Outdoor Systems, is an Australian Proprietary Company with Australian Company Number (ACN) 002 472 102.
The second respondent, the golf club, is an Australian Proprietary Company with ACN 000 037 847.
Sydney Water Corporation is the registered proprietor of Lot 1 in Deposited Plan 1144644 (the Golf Club Land). That land comprises the Eastlake Golf Club on which the footings of the footbridge are located.
The Golf Club Land is presently leased to the golf club.
On 30 November 2006, the Land and Environment Court (Dixon C) upheld a Class 1 appeal brought by Eastlakes Golf Club Ltd pursuant to s 97 of the EPA Act against Council's refusal on 6 April 2005 of development application 05/123 (the development application), received by Council on 28 September 2004, for the erection of a bridge and two associated advertising signage panels at Eastlake Golf Course, Wentworth Avenue, Pagewood by the granting of development consent subject to conditions (the consent).
The decision of Dixon C followed the decision of Moore C of 23 August 2006 in which Moore C concluded that having considered all relevant matters relating to the proposed signage, there was no impediment to the approval of the two signs, however he was not then in a position to issue final orders of the Court in Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343 (the decision of Moore C). The consequence was, in effect, the granting of development subject to detailed conditions which remained to be settled.
At the time the consent was granted, Botany Local Environmental Plan 1995 (NSW) (BLEP 1995) was in force and applied to the Golf Club Land and to the portion of Wentworth Avenue over which the footbridge was to be erected.
The portion of Wentworth Avenue over which the footbridge was to be built was unzoned pursuant to BLEP 1995. Clause 19 of that LEP made provision in relation to the development of land shown as unzoned on the zoning map.
At the time the consent was granted, State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) was also in force. SEPP 64 was subsequently repealed and its provisions, substantially unamended, reproduced in Part 3.3 of Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2001 (SEPP(I&E)).
However, as at the date consent was granted, Part 3 of SEPP 64 (now Part 3.3 of Chapter 3 of SEPP(I&E)) applied to the display of advertisements on the footbridge.
Accordingly, pursuant to cl 14(1) in Part 3 of SEPP 64, a development consent for the display of advertisements to which Part 3 of SEPP 64 applied ceased to be in force on the expiration of 15 years after the date on which the consent became effective. Subclause 14(1) provided as follows in relation to the duration of consents: 14 Duration of consents (1) A consent granted under this Part ceases to be in force: (a) on the expiration of 15 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or (b) if a lesser period is specified by the consent authority, on the expiration of the lesser period.
The parties agreed that in accordance with cl 14(1) of SEPP 64: 1. the consent (which was granted by Dixon C on 30 November 2006) ceased to be in force on and from 30 November 2021; and 2. the continuing display of advertisements affixed to the footbridge has been unlawful since 30 November 2021.
Relevantly also, cll 5, 6, 7 and 9 of SEPP 64 provided in relation to the area of application of the policy, signage to which the policy applies, its relationship with other environmental planning instruments and advertisements to which Part 3 applies, as follows: 5 Area of application of this Policy (1) This Policy applies to the whole of the State. (2) Without limiting subclause (1), this Policy applies to all land and structures within the State and all vessels on navigable waters. (3) Despite subclause (1), this Policy does not apply to the following land: Land to which State Environmental Planning Policy No 73 - Kosciuszko Ski Resorts applies 6 Signage to which this Policy applies (1) This Policy applies to all signage: (a) that, under another environmental planning instrument that applies to the signage, can be displayed with or without development consent, and (b) is visible from any public place or public reserve, except as provided by this Policy. (2) This Policy does not apply to signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it. 7 Relationship with other environmental planning instruments In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency. Note. This Policy will have the effect of modifying, and having paramountcy over, the provisions of some other environmental planing instruments that permit the display of signage with or without development consent. This is particularly so in the case of large advertisements, being advertisements of the kind referred to in Part 3. This Policy will not overturn or otherwise effect a prohibition on the display of signage that is contained in another environmental planning instrument. Because of some provisions, such as clauses 10, 16 and 21, it may add prohibitions on advertising if the advertising is proposed to be displayed in certain circumstances, such as on environmentally sensitive or environmentally significant land, on freeways or tollways, or in the form of a roof or sky advertisement. … 9 Advertisements to which this Part applies This Part applies to all signage to which this Policy applies, other than the following: (a) business identification signs, (b) building identification signs, (c) signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it, (d) signage on vehicles.
Clauses 11 and 13 of SEPP 64 provided in relation to the requirement for consent to display an advertisement and matters for consideration as follows: 11 Requirement for consent A person must not display an advertisement, except with the consent of the consent authority or except as otherwise provided by this Policy. … 13 Matters for consideration A consent authority must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires: (a) is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (c) satisfies any other relevant requirements of this Policy.
On 17 April 2008, Council (as the Landlord), the golf club (as the Tenant) and Outdoor Systems entered into a Deed (the Deed) for: 1. the construction and use of a bridge over Wentworth Avenue, as approved by the consent granted by the Court on 30 November 2006, including advertising structures on both sides of the bridge; 2. arrangements for pedestrian access between the northern and southern portions of the Eastlake Golf Club; and 3. the use of signage attached to the bridge for advertising.
In the recitals to the Deed, the parties acknowledged that pursuant to cl 14(1)(a) of SEPP 64, the consent in relation to the advertising structures expires 15 years after the date on which the consent became effective, namely 30 November 2021.
The Deed made provision in relation to, inter alia: 1. the granting by the Landlord (Council) to the Tenant (the golf club) of a lease (the lease) for the permitted use as follows: Item 3 (clause 1.1) Term The period ending 29 November 2021 … Item 7 (clause 1.1) Permitted Use Use of the Airbridge is for the construction of a bridge across Wentworth Avenue in accordance with Development Consent 05/123 granted by the Land & Environment Court on 30 November 2006 for the purposes of carrying traffic, both pedestrian and vehicular in a north south direction as part of the operation of The Eastlake Golf Club together with the use of the advertising structures for the purposes of carrying advertisements in accordance with the consent. 1. the payment of rent by the golf club and Outdoor Systems to Council is in accordance with the terms of the lease; 2. the payment of turnover rent by Outdoor Systems to Council; 3. maintenance and repair obligations during the term of the lease; and 4. the lodging of a new development application on or before 29 May 2020 for the use of the two advertising signs, with a consequential possibility of the parties reaching further agreement between themselves for a further term of the deed.
On 30 October 2009, Wentworth Avenue was dedicated as a public road pursuant to s 10 of the Roads Act 1993 (NSW).
On 21 June 2013, Botany Bay Local Environment Plan 2013 (NSW) (BBLEP 2013) came into force. Under the BBLEP 2013, the portion of Wentworth Avenue over and on which the footbridge sits is zoned SP2 Infrastructure Zone (Classified Road). "Advertising structures" and "advertisements" are defined in the BBLEP 2013 and the EPA Act, and are prohibited in the SP2 Infrastructure Zone.
On 13 March 2017, Council approved a modification of the development consent pursuant to former s 99AA of the EPA Act to replace the two existing signage panels with illuminated digital signage panels.

The development consent and SEPP 64

As recorded above at [16], development consent 05/123 was granted by the Court (Dixon C) on 30 November 2006. At the date of the grant of consent, SEPP 64 was in force.
As recorded above at [20], at the date of the grant of consent, cl 14(1) (in Part 3 "Advertisements, Division 2 "Control of Advertisements") of SEPP 64 provided: 14. Duration of consents (1) A consent granted under this Part ceases to be in force: (a) on the expiration of 15 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or (b) if a lesser period is specified by the consent authority, on the expiration of the lesser period.
It was agreed between the parties, and I am satisfied on the material adduced before me and the submissions made by senior counsel for the applicant without objection by counsel for the first respondent, that as a result of the operation of cl 14(1) of SEPP 64: 1. the consent ceased to be in force on 30 November 2021; and 2. the continuing display of advertisements affixed to the footbridge has been unlawful since 30 November 2021.
I find as follows in relation to the applicable statutory provisions as at the date of the granting of consent: 1. pursuant to former s 83(4) of the EPA Act, the consent became effective and operated from 30 November 2006, the date of the decision to grant consent; 2. the consent having been granted under Part 3 of SEPP 64 ("under this Part"), the effect of cl 14(1)(a) of SEPP 64 is that the consent ceased to be in force on 30 November 2021, at least to the extent that it authorised the advertising signage on the footbridge; 3. the 15 year time limit was prescribed by force of law unless the Court as consent authority specified a lesser period under cl 14(1)(b), which it did not; 4. although the advertising signage on the footbridge may have been separately authorised by the BLEP 1995, that does not have the consequence that the consent was not granted under Part 3 of SEPP 64; 5. as Moore C said in his decision of 23 August 2006 at [30], it was "only if there are matters raised by the council's planning instruments that are in addition to and not inconsistent with the requirements of SEPP 64 are such matters brought into play", citing cll 5 and 7 of SEPP 64; 6. Part 3 of SEPP 64 applied to the development application approved by the Court: cll 5, 6 and 9 of SEPP 64; 7. clause 11 of SEPP 64 imposed a requirement for consent to be obtained, and cl 13 specified the relevant matters for consideration; 8. clauses 17, 18 and 19 in Division 3 "Particular advertisements" of Part 3 of SEPP 64 were also relevant in the circumstances of the development application received by Council on 28 September 2001; 9. clause 24 of SEPP 64 imposed specific requirements for development consent for the display of an advertisement on a bridge; 10. as submitted by Outdoor Systems, the word "under" which appears in cl 14.1 of SEPP 64 most commonly takes the meaning "in pursuance of, "under the authority of", "having the source of", or "drawing legal efficacy from": Hill v Blacktown City Council [2007] NSWLEC 401 per Jagot J at 36; 11. insofar as the consent authorised the display of advertisements on a bridge, it did so "under" Part 3 of SEPP 64; 12. to the extent of an inconsistency between SEPP 64 and another environmental planning instrument, whether made before or after SEPP 64, SEPP 64 prevails to the extent of any inconsistency: cl 7; also s 3.28 of the EPA Act, previously s 36 of the EPA Act (now repealed). SEPP 64 imposed express requirements for consent to be obtained for the display of advertisements on the bridge the subject of the development application: cll 11 and 24.
To the extent that it be suggested that condition 22(a)(13) of the consent is relevant to the question of the date of commencement and cessation of the consent, I find, as submitted by the parties, and established by the material to which I was taken: 1. condition 22(a)(13) provides that: "Advertising on the bridge is to be for a limited period (not beyond 31 December 2025) to allow the Club to recover construction costs only"; 2. to the extent of any inconsistency between condition 22(a)(13) and cl 14(1) of SEPP 64, cl 14.1 prevails (cl 7 and s 3.28 of the EPA Act, previously s 36 of the EPA Act (now repealed)). Condition 22(a)(13) would not be construed to extend the operation of the consent beyond 15 years from the date of the determination of the development application by the Court; and 3. in any event, at its highest, condition 22(a)(13) refers to a "limited period (not beyond 31 December 2025)". 15 years from 30 November 2006 is a limited period not beyond 31 December 2025 (emphasis added). Accordingly, there is no obvious inconsistency between the operation of condition 22(a)(13) of the consent and cl 14(1) of SEPP 64.
It follows that I am comfortably satisfied that the consent ceased to be in force on and from 30 November 2021.

Current and historical zoning of the footbridge/signage

Whilst advertising was a permissible use at the time of the grant of the consent in 2006: 1. on 21 June 2013, "advertising structures" and "advertisements" became prohibited in the SPL Infrastructure Zone on the coming into force of BBLEP 2013 which applied to the footbridge and signage; and 2. "advertising structures" and "advertisements" remained prohibited on the coming into force of the current environmental planning instrument applying to the footbridge and signage, being the Bayside Local Environmental Plan 2021 (BLEP 2021).

Carrying out of prohibited development since 30 November 2021

Outdoor Systems continues to use the signage and continues to display advertisements on the signage affixed to the footbridge.
As a consequence of the consent ceasing to be in force on 30 November 2021, Outdoor Systems has been carrying out and is currently carrying out prohibited development in breach of s 4.3 of the EPA Act.

Principles in relation to declaratory relief

The parties accepted that declarations of the kind sought by consent would only be made upon the Court being satisfied as to their appropriateness.
I had occasion recently to summarise the relevant principles in relation to the granting of declaratory relief in PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 at [72] - [74]. The principles were, with respect, helpfully adumbrated by Preston CJ in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [20] - [25].
Applying the relevant principles here: 1. there is a real and not theoretical question as to whether the consent ceased to be in force as at 30 November 2021 which affects the entitlements of Outdoor Systems under the EPA Act; 2. Council, as the relevant local government authority with functions and powers with respect to the carrying out of development under the EPA Act, has a real interest in the question of whether the consent ceased to be in force as at 30 November 2021, and accordingly whether Outdoor Systems is carrying out prohibited development in breach of s 4.3 of the EPA Act; 3. Outdoor Systems is a proper contradictor to the proceedings, notwithstanding that Outdoor Systems consents to the declarations sought by Council; 4. the making of the declarations will have a practical effect in the circumstances, including by confirming that consent ceased to be in force as at 30 November 2021; and 5. the first declaration sought with respect to the operation of the consent clarifies that the consent no longer confers any rights, and accordingly provides an appropriate foundation for the second declaration that Outdoor Systems is carrying out prohibited development.
Further, I am satisfied that it is appropriate to grant the injunctive relief sought in proposed Order 1. There is no dispute that: 1. Outdoor Systems has been carrying out development which is prohibited; 2. it continues to do so despite its acceptance that its continuing conduct has been and will continue to be unlawful; and 3. unless an injunction is granted, there is no reason why the unlawful conduct will not continue.

Stay of Order 1 until 31 December 2024

In relation to the stay of Order 1 which is sought until 31 December 2024, the Court has a broad discretion under s 9.46 of the EPA Act which is to be exercised having regard, inter alia, to the factors collected by Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341. [1]
Of particular relevance here is s 9.46(3) of the EPA Act which provides: (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may - (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
In Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770 at [10] Jagot J said in relation to the precursor to s 9.46(3) of the EPA Act: [10] In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined.
In relation to the stay of Order 1 sought until 31 December 2024, the parties in the Agreed Statement of Facts agreed the following events: Current proceedings 26. On 21 March 2023, the Applicant commenced these Class 4 proceedings (Class 4 Proceedings). 27. On 3 July 2023, the First Respondent lodged planning proposal PP-2023-1358 (Planning Proposal) to add a clause under Schedule 1 Additional Permitted Uses of the VLEP 2021 to, in summary, make advertising signage on the bridge over Wentworth Avenue which is the subject of these Class 4 proceedings permissible with consent. 28. In response to a request from Council for further information, additional information and documentation in relation to the Planning Proposal was submitted on 27 October 2023 by the First Respondent. 29. The Planning Proposal is classed as a 'standard' Planning Proposal under the Local Environmental Plan Making Guideline dated August 2023 published by the NSW Department of Planning and Environment (Guideline). 30. Extracted below is Table 2 of the Guideline (at page 17 of the Guideline) comprising Planning Proposal Benchmark Timeframes: … 31. At the time of preparation of this Agreed Statement of Facts, the estimated time for determination of making of amendment to the LEP is late 2024. 32. It is proposed that the First Respondent will lodge a new development application before 31 December 2023 which will rely on the proposed amendment of BLEP 2021 pursuant to the Planning Proposal, in accordance with the provisions of Division 3.5 of the EPA Act.
In relation to the current proceedings and the question of whether it is appropriate to stay Order 1 until 31 December 2024, I am satisfied that having regard to the evidence placed before the Court as to: 1. the Planning Proposal lodged by Outdoor Systems on 3 July 2023 seeking to make the signage a permissible use and the proposal of Outdoor Systems to lodge a development application for ongoing use of the signage in accordance with Division 3.5 of the EPA Act; and 2. the agreement of the parties that it is an appropriate exercise of the Court's discretion to make Order 1, but to stay the operation of the order until 31 December 2024 to allow the Planning Proposal and associated development application to be determined. It is appropriate to grant the stay of Order 1 sought by the parties.
At the hearing on Monday of this week, counsel for both parties agreed that a new development application had not yet been lodged as Council had requested further information from Outdoor Systems in relation to traffic matters. It was anticipated that the information would be provided to Council shortly following the return of Outdoor Systems' traffic engineer from leave at the end of this week.
Senior counsel for Council stated for the record that Council's agreement to the stay order would in no way fetter the discretion of relevant decision-makers in relation to the new development application, once lodged.
I did, however, ask the parties to agree an appropriate form of order or notification order that the proceedings be brought back to the Court to ensure its finalisation. That agreement is reflected in Note 2 below.

Declarations and orders

Accordingly, I make the following declarations and orders: The Court declares that: 1. Development Consent 05/123, granted by the Land and Environment Court on 30 November 2006 and as subsequently modified (the consent) ceased to be in force as at 30 November 2021 to the extent that it authorised advertising signage on the pedestrian bridge referred to in declaration 2 below. 2. In breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW), the first respondent has since 30 November 2021 carried out development which is prohibited by the Bayside Local Environmental Plan 2021 (NSW), namely using the digital advertising signage affixed to both sides of the pedestrian bridge constructed over Wentworth Avenue, Pagewood, as shown on the photographs annexed and marked "A" and aerial photograph annexed and marked "B" (the signage). Annexure "A" Annexure "B" The Court orders that: 1. The first respondent by itself, its servants and/or agents is restrained from operating or using the signage for the purposes of advertising, including any associated use formerly approved by the consent. 2. The operation of Order 1 is stayed until 31 December 2024. 3. The first respondent is to pay the applicant's costs in the agreed sum of $18,000 within 28 days of the making of these orders. 4. Any party has liberty to restore on three days' notice until 31 December 2024 to make an application to the Court to extend the time period in Order 2 above. The Court notes that: 1. The applicant will not unreasonably withhold its consent to any application by the first respondent to extend the dates in Orders 2 and 4 above. 2. The parties are to advise the Court no later than Friday, 13 December 2024 whether a party proposes to make an application in accordance with Order 4 above.

Endnote

See also J.K. Williams Staff Pty Limited v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 at [307]; [2021] NSWLEC 23 (Preston CJ).

Amendments 01 February 2024 - Correction to typographical error in [34]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2024

PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40

Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

There is a pedestrian footbridge spanning Wentworth Avenue, Pagewood, the footings of which are located on Lot 1 DP 1144655 (the footbridge). The footbridge is otherwise known as the Eastlake Golf Club footbridge.
Affixed to either side of the footbridge are digital advertising signage panels (the signage). The signage is operated by the first respondent, Outdoor Systems Pty Ltd (Outdoor Systems).
The applicant, Bayside Council (Council), commenced these proceedings by summons dated 21 March 2023 seeking declarations and orders concerning the signage located on the footbridge.
Following without prejudice discussions, Council and Outdoor Systems have reached agreement in relation to declarations and orders which they ask the Court to make.
The second respondent, the Eastlake Golf Club Limited (the golf club), has filed a submitting appearance. Accordingly references to 'the parties' in these reasons for judgment are a reference to Council and Outdoor Systems.

The proposed declarations and orders seeking injunctive relief

The parties seek the following declarations and orders by consent:

The Court declares that:

1. Development Consent 05/123, granted by the Land and Environment Court on 30 November 2006 and as subsequently modified (the Consent) ceased to be in force as at 30 November 2021 to the extent that it authorised advertising signage on the pedestrian bridge referred to in declaration 2 below.

2. In breach of s 4.3 of the Environmental Planning and Assessment Act 1979, the First Respondent has since 30 November 2021 carried out development which is prohibited by the Bayside Local Environmental Plan 2021, namely using the digital advertising signage affixed to both sides of the pedestrian bridge constructed over Wentworth Avenue, Pagewood, as shown on the photographs annexed and marked "A" and aerial photograph annexed and marked "B" (Signage).

The Court orders that:

1. The First Respondent by itself, its servants and/or agents is restrained from operating or using the Signage for the purposes of advertising, including any associated use formerly approved by the Consent.

2. The operation of Order 1 is stayed until 31 December 2024.

3. The First Respondent is to pay the Applicant's costs in the agreed sum of $18,000 within 28 days of the making of these orders.

4. Any party has liberty to restore on three days' notice until 31 December 2024 to make an application to the Court to extend the time period in Order 2 above.

The Court notes that:

1. The Applicant will not unreasonably withhold its consent to any application by the First Respondent to extend the dates in Orders 2 and 4 above.

At the hearing, in support of the proposed declarations and orders, Council:

(1) relied on written submissions filed 5 December 2023;

(2) tendered an Agreed Statement of Facts, the facts being agreed facts within the meaning of s 191 of the Evidence Act 1995 (NSW), signed on behalf of Council and Outdoor Systems and filed 23 November 2023; and

(3) read the affidavit of Felicity Jane Eberhart, a town planner in the employ of Council filed 6 June 2023, and tendered the exhibit thereto.

The respondent did not rely on any written submissions or evidence.

The Agreed Statement of Facts, and material relied on by Council

The parties agreed the following facts for the purpose of Monday's hearing in relation to the declarations and orders they seek by consent, and senior counsel for Council took me to material capable of establishing those facts to the Court's satisfaction.
The applicant is a body politic of the State of NSW constituted under the Local Government Act 1993 (NSW) (LG Act), is entitled to take proceedings in its own name, and, as a council constituted under the LG Act, has the functions of a consent authority under the Environment Planning and Assessment Act 1979 (EPA Act) for the relevant local government area.
The applicant was previously known as Botany Bay City Council until the coming into force of the Local Government (Bayside) Proclamation 2016 on 9 September 2016.
The first respondent, Outdoor Systems, is an Australian Proprietary Company with Australian Company Number (ACN) 002 472 102.
The second respondent, the golf club, is an Australian Proprietary Company with ACN 000 037 847.
Sydney Water Corporation is the registered proprietor of Lot 1 in Deposited Plan 1144644 (the Golf Club Land). That land comprises the Eastlake Golf Club on which the footings of the footbridge are located.
The Golf Club Land is presently leased to the golf club.
On 30 November 2006, the Land and Environment Court (Dixon C) upheld a Class 1 appeal brought by Eastlakes Golf Club Ltd pursuant to s 97 of the EPA Act against Council's refusal on 6 April 2005 of development application 05/123 (the development application), received by Council on 28 September 2004, for the erection of a bridge and two associated advertising signage panels at Eastlake Golf Course, Wentworth Avenue, Pagewood by the granting of development consent subject to conditions (the consent).
The decision of Dixon C followed the decision of Moore C of 23 August 2006 in which Moore C concluded that having considered all relevant matters relating to the proposed signage, there was no impediment to the approval of the two signs, however he was not then in a position to issue final orders of the Court in Eastlakes Golf Club v Botany Bay City Council [2006] NSWLEC 343 (the decision of Moore C). The consequence was, in effect, the granting of development subject to detailed conditions which remained to be settled.
At the time the consent was granted, Botany Local Environmental Plan 1995 (NSW) (BLEP 1995) was in force and applied to the Golf Club Land and to the portion of Wentworth Avenue over which the footbridge was to be erected.
The portion of Wentworth Avenue over which the footbridge was to be built was unzoned pursuant to BLEP 1995. Clause 19 of that LEP made provision in relation to the development of land shown as unzoned on the zoning map.
At the time the consent was granted, State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) was also in force. SEPP 64 was subsequently repealed and its provisions, substantially unamended, reproduced in Part 3.3 of Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2001 (SEPP(I&E)).
However, as at the date consent was granted, Part 3 of SEPP 64 (now Part 3.3 of Chapter 3 of SEPP(I&E)) applied to the display of advertisements on the footbridge.
Accordingly, pursuant to cl 14(1) in Part 3 of SEPP 64, a development consent for the display of advertisements to which Part 3 of SEPP 64 applied ceased to be in force on the expiration of 15 years after the date on which the consent became effective. Subclause 14(1) provided as follows in relation to the duration of consents:

14 Duration of consents

(1) A consent granted under this Part ceases to be in force:

(a) on the expiration of 15 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or

(b) if a lesser period is specified by the consent authority, on the expiration of the lesser period.

The parties agreed that in accordance with cl 14(1) of SEPP 64:

(1) the consent (which was granted by Dixon C on 30 November 2006) ceased to be in force on and from 30 November 2021; and

(2) the continuing display of advertisements affixed to the footbridge has been unlawful since 30 November 2021.

Relevantly also, cll 5, 6, 7 and 9 of SEPP 64 provided in relation to the area of application of the policy, signage to which the policy applies, its relationship with other environmental planning instruments and advertisements to which Part 3 applies, as follows:

5 Area of application of this Policy

(1) This Policy applies to the whole of the State.

(2) Without limiting subclause (1), this Policy applies to all land and structures within the State and all vessels on navigable waters.

(3) Despite subclause (1), this Policy does not apply to the following land:

Land to which State Environmental Planning Policy No 73 - Kosciuszko Ski Resorts applies

6 Signage to which this Policy applies

(1) This Policy applies to all signage:

(a) that, under another environmental planning instrument that applies to the signage, can be displayed with or without development consent, and

(b) is visible from any public place or public reserve,

except as provided by this Policy.

(2) This Policy does not apply to signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it.

7 Relationship with other environmental planning instruments

In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

Note. This Policy will have the effect of modifying, and having paramountcy over, the provisions of some other environmental planing instruments that permit the display of signage with or without development consent. This is particularly so in the case of large advertisements, being advertisements of the kind referred to in Part 3. This Policy will not overturn or otherwise effect a prohibition on the display of signage that is contained in another environmental planning instrument. Because of some provisions, such as clauses 10, 16 and 21, it may add prohibitions on advertising if the advertising is proposed to be displayed in certain circumstances, such as on environmentally sensitive or environmentally significant land, on freeways or tollways, or in the form of a roof or sky advertisement.

...

9 Advertisements to which this Part applies

This Part applies to all signage to which this Policy applies, other than the following:

(a) business identification signs,

(b) building identification signs,

(c) signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it,

(d) signage on vehicles.

Clauses 11 and 13 of SEPP 64 provided in relation to the requirement for consent to display an advertisement and matters for consideration as follows:

11 Requirement for consent

A person must not display an advertisement, except with the consent of the consent authority or except as otherwise provided by this Policy.

...

13 Matters for consideration

A consent authority must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires:

(a) is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(c) satisfies any other relevant requirements of this Policy.

On 17 April 2008, Council (as the Landlord), the golf club (as the Tenant) and Outdoor Systems entered into a Deed (the Deed) for:

(1) the construction and use of a bridge over Wentworth Avenue, as approved by the consent granted by the Court on 30 November 2006, including advertising structures on both sides of the bridge;

(2) arrangements for pedestrian access between the northern and southern portions of the Eastlake Golf Club; and

(3) the use of signage attached to the bridge for advertising.

In the recitals to the Deed, the parties acknowledged that pursuant to cl 14(1)(a) of SEPP 64, the consent in relation to the advertising structures expires 15 years after the date on which the consent became effective, namely 30 November 2021.
The Deed made provision in relation to, inter alia:

(1) the granting by the Landlord (Council) to the Tenant (the golf club) of a lease (the lease) for the permitted use as follows:

Item 3 (clause 1.1) Term

The period ending 29 November 2021

...

Item 7 (clause 1.1) Permitted Use

Use of the Airbridge is for the construction of a bridge across Wentworth Avenue in accordance with Development Consent 05/123 granted by the Land & Environment Court on 30 November 2006 for the purposes of carrying traffic, both pedestrian and vehicular in a north south direction as part of the operation of The Eastlake Golf Club together with the use of the advertising structures for the purposes of carrying advertisements in accordance with the consent.

(2) the payment of rent by the golf club and Outdoor Systems to Council is in accordance with the terms of the lease;

(3) the payment of turnover rent by Outdoor Systems to Council;

(4) maintenance and repair obligations during the term of the lease; and

(5) the lodging of a new development application on or before 29 May 2020 for the use of the two advertising signs, with a consequential possibility of the parties reaching further agreement between themselves for a further term of the deed.

On 30 October 2009, Wentworth Avenue was dedicated as a public road pursuant to s 10 of the Roads Act 1993 (NSW).
On 21 June 2013, Botany Bay Local Environment Plan 2013 (NSW) (BBLEP 2013) came into force. Under the BBLEP 2013, the portion of Wentworth Avenue over and on which the footbridge sits is zoned SP2 Infrastructure Zone (Classified Road). "Advertising structures" and "advertisements" are defined in the BBLEP 2013 and the EPA Act, and are prohibited in the SP2 Infrastructure Zone.
On 13 March 2017, Council approved a modification of the development consent pursuant to former s 99AA of the EPA Act to replace the two existing signage panels with illuminated digital signage panels.

As recorded above at [16 ], development consent 05/123 was granted by the Court (Dixon C) on 30 November 2006. At the date of the grant of consent, SEPP 64 was in force.
As recorded above at [20 ], at the date of the grant of consent, cl 14(1) (in Part 3 "Advertisements, Division 2 "Control of Advertisements") of SEPP 64 provided:

14. Duration of consents

(1) A consent granted under this Part ceases to be in force:

(a) on the expiration of 15 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or

(b) if a lesser period is specified by the consent authority, on the expiration of the lesser period.

It was agreed between the parties, and I am satisfied on the material adduced before me and the submissions made by senior counsel for the applicant without objection by counsel for the first respondent, that as a result of the operation of cl 14(1) of SEPP 64:

(1) the consent ceased to be in force on 30 November 2021; and

(2) the continuing display of advertisements affixed to the footbridge has been unlawful since 30 November 2021.

I find as follows in relation to the applicable statutory provisions as at the date of the granting of consent:

(1) pursuant to former s 83(4) of the EPA Act, the consent became effective and operated from 30 November 2006, the date of the decision to grant consent;

(2) the consent having been granted under Part 3 of SEPP 64 ("under this Part"), the effect of cl 14(1)(a) of SEPP 64 is that the consent ceased to be in force on 30 November 2021, at least to the extent that it authorised the advertising signage on the footbridge;

(3) the 15 year time limit was prescribed by force of law unless the Court as consent authority specified a lesser period under cl 14(1)(b), which it did not;

(4) although the advertising signage on the footbridge may have been separately authorised by the BLEP 1995, that does not have the consequence that the consent was not granted under Part 3 of SEPP 64;

(5) as Moore C said in his decision of 23 August 2006 at [30], it was "only if there are matters raised by the council's planning instruments that are in addition to and not inconsistent with the requirements of SEPP 64 are such matters brought into play", citing cll 5 and 7 of SEPP 64;

(6) Part 3 of SEPP 64 applied to the development application approved by the Court: cll 5, 6 and 9 of SEPP 64;

(7) clause 11 of SEPP 64 imposed a requirement for consent to be obtained, and cl 13 specified the relevant matters for consideration;

(8) clauses 17, 18 and 19 in Division 3 "Particular advertisements" of Part 3 of SEPP 64 were also relevant in the circumstances of the development application received by Council on 28 September 2001;

(9) clause 24 of SEPP 64 imposed specific requirements for development consent for the display of an advertisement on a bridge;

(10) as submitted by Outdoor Systems, the word "under" which appears in cl 14.1 of SEPP 64 most commonly takes the meaning "in pursuance of, "under the authority of", "having the source of", or "drawing legal efficacy from": Hill v Blacktown City Council [2007] NSWLEC 401 per Jagot J at [36](4);

(11) insofar as the consent authorised the display of advertisements on a bridge, it did so "under" Part 3 of SEPP 64;

(12) to the extent of an inconsistency between SEPP 64 and another environmental planning instrument, whether made before or after SEPP 64, SEPP 64 prevails to the extent of any inconsistency: cl 7; also s 3.28 of the EPA Act, previously s 36 of the EPA Act (now repealed). SEPP 64 imposed express requirements for consent to be obtained for the display of advertisements on the bridge the subject of the development application: cll 11 and 24.

To the extent that it be suggested that condition 22(a)(13) of the consent is relevant to the question of the date of commencement and cessation of the consent, I find, as submitted by the parties, and established by the material to which I was taken:

(1) condition 22(a)(13) provides that: "Advertising on the bridge is to be for a limited period (not beyond 31 December 2025) to allow the Club to recover construction costs only";

(2) to the extent of any inconsistency between condition 22(a)(13) and cl 14(1) of SEPP 64, cl 14.1 prevails (cl 7 and s 3.28 of the EPA Act, previously s 36 of the EPA Act (now repealed)). Condition 22(a)(13) would not be construed to extend the operation of the consent beyond 15 years from the date of the determination of the development application by the Court; and

(3) in any event, at its highest, condition 22(a)(13) refers to a "limited period (not beyond 31 December 2025)". 15 years from 30 November 2006 is a limited period not beyond 31 December 2025 (emphasis added). Accordingly, there is no obvious inconsistency between the operation of condition 22(a)(13) of the consent and cl 14(1) of SEPP 64.

It follows that I am comfortably satisfied that the consent ceased to be in force on and from 30 November 2021.

Current and historical zoning of the footbridge/signage

Whilst advertising was a permissible use at the time of the grant of the consent in 2006:

(1) on 21 June 2013, "advertising structures" and "advertisements" became prohibited in the SPL Infrastructure Zone on the coming into force of BBLEP 2013 which applied to the footbridge and signage; and

(2) "advertising structures" and "advertisements" remained prohibited on the coming into force of the current environmental planning instrument applying to the footbridge and signage, being the Bayside Local Environmental Plan 2021 (BLEP 2021).

Carrying out of prohibited development since 30 November 2021

Outdoor Systems continues to use the signage and continues to display advertisements on the signage affixed to the footbridge.
As a consequence of the consent ceasing to be in force on 30 November 2021, Outdoor Systems has been carrying out and is currently carrying out prohibited development in breach of s 4.3 of the EPA Act.

The parties accepted that declarations of the kind sought by consent would only be made upon the Court being satisfied as to their appropriateness.
I had occasion recently to summarise the relevant principles in relation to the granting of declaratory relief in PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40 at [72] - [74]. The principles were, with respect, helpfully adumbrated by Preston CJ in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [20] - [25].
Applying the relevant principles here:

(1) there is a real and not theoretical question as to whether the consent ceased to be in force as at 30 November 2021 which affects the entitlements of Outdoor Systems under the EPA Act;

(2) Council, as the relevant local government authority with functions and powers with respect to the carrying out of development under the EPA Act, has a real interest in the question of whether the consent ceased to be in force as at 30 November 2021, and accordingly whether Outdoor Systems is carrying out prohibited development in breach of s 4.3 of the EPA Act;

(3) Outdoor Systems is a proper contradictor to the proceedings, notwithstanding that Outdoor Systems consents to the declarations sought by Council;

(4) the making of the declarations will have a practical effect in the circumstances, including by confirming that consent ceased to be in force as at 30 November 2021; and

(5) the first declaration sought with respect to the operation of the consent clarifies that the consent no longer confers any rights, and accordingly provides an appropriate foundation for the second declaration that Outdoor Systems is carrying out prohibited development.

Further, I am satisfied that it is appropriate to grant the injunctive relief sought in proposed Order 1. There is no dispute that:

(1) Outdoor Systems has been carrying out development which is prohibited;

(2) it continues to do so despite its acceptance that its continuing conduct has been and will continue to be unlawful; and

(3) unless an injunction is granted, there is no reason why the unlawful conduct will not continue.

In relation to the stay of Order 1 which is sought until 31 December 2024, the Court has a broad discretion under s 9.46 of the EPA Act which is to be exercised having regard, inter alia, to the factors collected by Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341.[1]
Of particular relevance here is s 9.46(3) of the EPA Act which provides:

(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may -

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

In Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770 at [10] Jagot J said in relation to the precursor to s 9.46(3) of the EPA Act:

[10] In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined.

In relation to the stay of Order 1 sought until 31 December 2024, the parties in the Agreed Statement of Facts agreed the following events:

Current proceedings

26. On 21 March 2023, the Applicant commenced these Class 4 proceedings (Class 4 Proceedings).

27. On 3 July 2023, the First Respondent lodged planning proposal PP-2023-1358 (Planning Proposal) to add a clause under Schedule 1 Additional Permitted Uses of the VLEP 2021 to, in summary, make advertising signage on the bridge over Wentworth Avenue which is the subject of these Class 4 proceedings permissible with consent.

28. In response to a request from Council for further information, additional information and documentation in relation to the Planning Proposal was submitted on 27 October 2023 by the First Respondent.

29. The Planning Proposal is classed as a 'standard' Planning Proposal under the Local Environmental Plan Making Guideline dated August 2023 published by the NSW Department of Planning and Environment (Guideline).

30. Extracted below is Table 2 of the Guideline (at page 17 of the Guideline) comprising Planning Proposal Benchmark Timeframes:

...

31. At the time of preparation of this Agreed Statement of Facts, the estimated time for determination of making of amendment to the LEP is late 2024.

32. It is proposed that the First Respondent will lodge a new development application before 31 December 2023 which will rely on the proposed amendment of BLEP 2021 pursuant to the Planning Proposal, in accordance with the provisions of Division 3.5 of the EPA Act.

In relation to the current proceedings and the question of whether it is appropriate to stay Order 1 until 31 December 2024, I am satisfied that having regard to the evidence placed before the Court as to:

(1) the Planning Proposal lodged by Outdoor Systems on 3 July 2023 seeking to make the signage a permissible use and the proposal of Outdoor Systems to lodge a development application for ongoing use of the signage in accordance with Division 3.5 of the EPA Act; and

(2) the agreement of the parties that it is an appropriate exercise of the Court's discretion to make Order 1, but to stay the operation of the order until 31 December 2024 to allow the Planning Proposal and associated development application to be determined.

It is appropriate to grant the stay of Order 1 sought by the parties.

At the hearing on Monday of this week, counsel for both parties agreed that a new development application had not yet been lodged as Council had requested further information from Outdoor Systems in relation to traffic matters. It was anticipated that the information would be provided to Council shortly following the return of Outdoor Systems' traffic engineer from leave at the end of this week.
Senior counsel for Council stated for the record that Council's agreement to the stay order would in no way fetter the discretion of relevant decision-makers in relation to the new development application, once lodged.
I did, however, ask the parties to agree an appropriate form of order or notification order that the proceedings be brought back to the Court to ensure its finalisation. That agreement is reflected in Note 2 below.

Accordingly, I make the following declarations and orders:

1. Development Consent 05/123, granted by the Land and Environment Court on 30 November 2006 and as subsequently modified (the consent) ceased to be in force as at 30 November 2021 to the extent that it authorised advertising signage on the pedestrian bridge referred to in declaration 2 below.

2. In breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW), the first respondent has since 30 November 2021 carried out development which is prohibited by the Bayside Local Environmental Plan 2021 (NSW), namely using the digital advertising signage affixed to both sides of the pedestrian bridge constructed over Wentworth Avenue, Pagewood, as shown on the photographs annexed and marked "A" and aerial photograph annexed and marked "B" (the signage).

1. The first respondent by itself, its servants and/or agents is restrained from operating or using the signage for the purposes of advertising, including any associated use formerly approved by the consent.

2. The operation of Order 1 is stayed until 31 December 2024.

3. The first respondent is to pay the applicant's costs in the agreed sum of $18,000 within 28 days of the making of these orders.

4. Any party has liberty to restore on three days' notice until 31 December 2024 to make an application to the Court to extend the time period in Order 2 above.

1. The applicant will not unreasonably withhold its consent to any application by the first respondent to extend the dates in Orders 2 and 4 above.

2. The parties are to advise the Court no later than Friday, 13 December 2024 whether a party proposes to make an application in accordance with Order 4 above.

01 February 2024 - Correction to typographical error in [34].

[1] See also J.K. Williams Staff Pty Limited v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 at [307]; [2021] NSWLEC 23 (Preston CJ).

Environment Planning and Assessment Act 1979(NSW)ss 3.28, 9.46

Planning and Assessment Act 1979

(2007) 154 LGERA 418

(2021) 249 LGERA 109

At a glance

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