Benmill Pty Ltd v North Sydney Council

Land and Environment Court (NSW)|2019-08-12|Before: Robson J

Background

The Property is located within the local government area of North Sydney and contains a 17-storey commercial office building with a parapet height of 52.36 metres and a total overall height of 60.75 metres.
The Property presently has three illuminated roof-top signs facing north, south and west respectively, comprising of fabricated lettering and a logo attached to the roof structure by brackets. The north and south elevation signs have both "BAYER" lettering and associated Bayer logo while the west elevation sign has a "BAYER" logo.
The Property is zoned B3 Commercial Core under the North Sydney Local Environmental Plan 2013 ('2013 LEP') pursuant to which development for the purposes of "signage" as defined in the Dictionary is permissible with development consent. SEPP 64, which has been in force since 16 March 2001 and concerns advertising and signage, has applied to the Property at all relevant times.
Prior to the 2007 Consent, the Property had received several approvals for signage on the building since 26 February 1988, including: 1. Development consent granted by Council on 26 February 1988 for "the erection of neon illuminated flush wall signs to be attached to the north, south and west elevations of the building and each sign bearing the inscription "Konica & Fun Motif"". 2. Development consent granted by Council on 29 April 1996 for "the removal of the existing illuminated signs and on the west, north and south elevation with the wording "Konica" and repositioning on the west, north and southern sides of the roof top" ('1996 Konica Consent'). 3. Development consent granted by Council on 1 September 1996 for "a change in advertisement on the roof top advertising structure", which approved the change from "Konica" to "Bayer" and the inclusion of a logo ('1996 Bayer Consent').
On 22 November 2007, a development consent, being the "2007 Consent", was granted by the Court (comprising Senior Commissioner Roseth) in Benmill v North Sydney Council [2007] NSWLEC 680, making an order in the following terms: "Development application for the re-cladding of the existing building at 275 Alfred Street, North Sydney and the erection of a roof sign is determined by the grant of consent subject to the conditions in Annexure A."

Evidence

The Court received extensive background documentary material in a joint tender bundle, comprising various historical approvals commencing in 1998 in relation to the Property and documentation associated with various development applications. The Court also received documentation including pleadings and submissions in relation to the two appeals determined by the Commissioner in Legge. Objection was taken primarily by Council to the relevance of much of the background material up until the decision of the Senior Commissioner in November 2007.
Benmill also relies upon the affidavits of Joshua Berger, director of Benmill, affirmed 20 December 2018 and Lesli Berger, director of Benmill, affirmed 1 May 2019.
The affidavits contained details of various applications made in relation to the Property; information pertaining to various leasing arrangements involving the signs; and further historical detail leading up to the determination in Legge.
Mr Lesli Berger deposes to concerns arising from the fact that Benmill has been unable to enter leases in relation to the signage and is suffering financial loss. He also deposes as to his understanding that Council will not approve any application for an advertising sign until the question of the construction of the 2007 Consent is resolved.

Issues for determination

Council contends that the decision in Legge (or more particularly, an issue which Council submits was necessarily resolved therein) constitutes a final decision in proceedings between the parties (or their privies) which determined that the use permitted by the 2007 Consent and the 2016 Consent is for a "building identification sign", such that Benmill is now prevented from advancing its claim for the declarations sought on the basis of issue estoppel and/or because to advance its claims would be an abuse of process. Thus, before considering the substance of Benmill's claim, it is necessary to determine Council's contention that Benmill ought to be prevented from now advancing its claim for declaratory relief on the basis of either issue estoppel or abuse of process.
Briefly stated, in considering issue estoppel, the Court is required to determine whether the decision of the Commissioner in Legge in relation to the 2007 Consent and 2016 Consent was a decision with the requisite character to support an issue estoppel and, for the purposes of abuse of process, whether Benmill should be prevented from attempting to relitigate the issue. Council submits that if the Court were to agree with its submissions in relation to issue estoppel or abuse of process, then the Court should not proceed to consideration of Benmill's substantive claims in the proceedings as to do so could possibly result in two inconsistent decisions of the Court in relation to the same issue.
If Benmill's claim is not barred by the application of the principles of issue estoppel or abuse of process, the Court is required to construe the (use) rights granted by the 2007 Consent. That is, the Court is required to determine whether the reference to "roof sign" in the 2007 Consent and 2016 Consent is either a "roof or sky advertisement" or a "building identification sign" within the meaning of SEPP 64 as contended by Benmill and Council respectively.

Issue estoppel

As noted above, the decision of the Commissioner in Legge concerned two separate, but related, appeals that had proceeded concurrently in relation to Council's deemed refusal of DA40/17 (proceedings 2017/00108602) and a modification application (proceedings 2017/00258638) made under s 96(2) (now s 4.55(2)) of the EPA Act. Both applications effectively related to the same work, which was the removal of the existing signage which comprises individual lettering and logos attached to a roof structure. More particularly, the modification application sought approval "to amend the existing approved signage to the rooftop of the Bayer building to dynamic/changeable LED advertising panels" and their replacement with changeable LED screens being rectangular panels of approximately 66sqm to the north and south, and 46sqm to the west. The Commissioner dealt with both appeals in the one judgment by separately considering and making orders in each appeal.
In dismissing the development appeal, the Commissioner gave detailed consideration to the legislative framework, and the relevant provisions of SEPP 64 (including the objectives of the policy and the discrete assessment criteria specified in the policy), as well as the 2013 LEP and the North Sydney Development Control Plan 2013. In summary, he was not satisfied (at [65]-[66]) that, the proposed signage was acceptable in terms of its impacts nor that it "improve(s) the visual amenity of the locality in which it is displayed" in accordance with cl 21(1)(a)(i) of SEPP 64.
Relevant to the current matter, the fundamental issue which the Commissioner was required to determine in relation to the modification appeal was, pursuant to s 4.55(2)(a) of the EPA Act, whether the Commissioner was "satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)".
As considered below, although Council suggested that the relevant paragraphs in Legge from which the issue estoppel is alleged to have arisen are [112]-[116], for context, the whole of the Commissioner's "findings" in the modification appeal are as follows: "Findings [108] On this matter, I agree with the conclusion of Mr Hoy and the submissions of Mr Lancaster that the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. [109] The parties disagreed on how the sign should be considered. Mr Hemmings submits that the 2016 consent expressly incorporated the 2007 consent and this consent included the installation of signage and its use. It set out the form that the signs would take. In addition to incorporating the 2007 consent, the 2016 consent also expressly included the form that the roof or sky advertisement would take. [110] To the extent that the council would suggest that the 2016 consent as originally granted was for a building identification sign the Court would not accept that proposition because the applicant lodged an application to modify the first 2016 consent to rectify a minor error or misdescription, namely the misdescription of what the 2016 consent approved. [111] Mr Hemmings submits that the Modification Appeal involves modifying the form of the signage (something that the 2016 consent expressly sought to control); and continuing the use that was, and is, authorised by the 2016 consent, namely that of a roof or sky sign. In these circumstances, the proposal in the Modification Appeal is substantially the same as the 2016 consent. [112] This is not an approach accepted by Mr Lancaster. He submits that DA 59/07 [2007 Consent] was properly characterised as a "building identification sign" and that the development the subject of DA 163/16 [2016 Consent] was properly characterised as the continued use of the building identification signage the subject of DA 59/07. The use of those descriptions does not alter the proper characterisation of the signage, which is a question of the application of the legal meaning of the defined terms in SEPP64 (and is itself a jurisdictional fact: at Woolworths Ltd v Pallas Newco Ply Ltd [2004] NSWCA 422; 61 NSWLR 707 at [88]). [113] The development the subject of DA 59/07 [2007 Consent], which DA 163/16 [2016 Consent] permitted the continued use of, is properly characterised as building identification signage. The development the subject of the proposal in the Modification Appeal is different and is properly characterised as an "advertisement". [114] Mr Lancaster does not submit that a difference in characterisation between the original and proposed altered use leads inexorably to the conclusion that the developments are not substantially the same. However, it is highly relevant, and effectively determinative, in this particular case as the different characterisation exposes the proposed altered use to a different, and more onerous regime under the relevant environmental planning instruments than would be the case if the proposal continued to be properly characterised as a building identification sign. That is, the different uses are not substantially the same because, among other things, they are so differently regulated by environmental planning instruments. [115] I agree with the submissions of Mr Lancaster that DA 59/07 [2007 Consent], which DA 163/16 [2016 Consent] permitted the continued use of, is properly characterised as building identification signage. The development the subject of the proposal is different and is properly characterised as an "advertisement". I also agree that although there may be two different characterisations of the existing signs and the proposed signs; this does not by itself allow the question posed by s 4.55(2)(a) to be answered either way, but I accept that it is more supportive of the council's position on this matter. [116] What is determinative is the different characteristics of the existing signs and the proposed signs. Qualitatively and quantitively, there are material differences and include some, but not all suggested by Mr Hoy. In my view, the proposed signs are "substantially" different because the proposed signs: • have a larger advertising area (notwithstanding the method of measurement in SEPP 64); • have a different purpose in seeking to attract attention every week rather than the continuation of the static building identification sign; • introduce a different form of signage, (advertisements rather than a building identification sign); • introduce changing signage rather than static signage; • introduce multiple colours associated with different advertisements; and • require demolition of the existing signs. [117] For the above reasons, I am not satisfied the development the subject of the proposal in the Modification Appeal is substantially the same as the development the subject of DA 163/16 [2016 Consent], or the development the subject of DA 59/07 [2007 Consent], which DA 163/16 [2016 Consent] permitted the continued use of the signage. Consequently, the Modification Appeal must be dismissed and the application refused." (Descriptors [2007 Consent] and [2016 Consent] added for clarity.)
Given that Council raises issue estoppel and abuse of process, I will summarise Council's position before turning to Benmill's response.

Council's position

Council submits that the amended summons ought to be dismissed on the ground of issue estoppel primarily because the present proceedings are an attempt to relitigate the issue of the construction of consents which has been previously determined in Legge.
Council submits that, contrary to the interpretation of the Legge decision advanced by Benmill, that issue estoppel can attach to a step along the way to a determination and can apply in circumstances where the previous decision is made by a Commissioner of the Court.
Council points to the three requirements applied by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at 373 ('Kuligowski') being, first, that the same question must be decided; second, the judicial decision which is said to create the estoppel was final; and, third, that the parties were the same persons or their privies as the parties to the proceedings in which the estoppel is raised.
Council submits that the issue involved in the current proceedings, being the issue concerning the characterisation of the use permitted by the 2007 Consent and the 2016 Consent, is the same issue that was resolved by the Commissioner in Legge, when he found that the use permitted by the relevant consents is for a "building identification sign".
Council relies on Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 ('Tomlinson') where French CJ, Bell, Gageler and Keane JJ, citing Dixon J in Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 ('Blair v Curran') at 31, stated at [22]: "[Issue estoppel] operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies"." (Footnotes omitted.)
Council submits that "necessarily resolved" means that a distinction should be drawn between issues that are part and parcel of the decision and those which are superfluous to the resolution of the decision. Council submits that the question of characterisation determined by the Commissioner was an ultimate fact or legal proposition.
Council submits that the Commissioner was necessarily required to find that the characterisation was a "building identification sign" before determining whether the developments were substantially the same. Council submits that it was a considered conclusion that was taken into account in support of the final determination and therefore is a conclusion that has the character to which issue estoppel attaches. As a result, the characterisation of the roof sign was not incidental or collateral, but instead part and parcel of the determination of the issue as to whether the developments were substantially the same.
Council submits that the Commissioner noted that s 4.55(2)(a) of the EPA Act provides for a condition precedent to the exercise of the power to modify a development consent and Council notes that the section provides a power to modify a consent only if the consent authority is satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted…". Accordingly, Council submits that it was necessary for the determination of the modification appeal to consider and determine the character of the development for which consent was originally granted. The Court dismissed the s 96 appeal and refused the modification application: at [117]-[118].
Council submits that in the modification appeal, as recorded by the Commissioner, it contended that the 2007 Consent was properly characterised as a "building identification sign" and that the development the subject of the 2016 Consent was properly characterised as the continued use of the building identification signage the subject of the 2007 Consent: at [112]. Council says that the question of characterisation was "highly relevant, and effectively determinative, in this particular case" to the issue of whether the developments are substantially the same: at [114].
Council notes that, in Legge, the applicant contended that the 2007 Consent and the 2016 Consent were consents for a roof or sky advertisement: at [109]-[111].
Council notes that the Commissioner accepted its submissions, and the Commissioner supported their ultimate conclusion with his finding at [115]. Council submits that the Commissioner had specifically accepted its submissions on characterisation in making a finding, and that the Commissioner's statement, at [116], that "What is determinative is the different characteristics…" should be understood as meaning that, although the finding on characterisation was not itself determinative, when other factors were also taken into account then the development could be considered as not substantially the same. Further, Council submits that the statement "For the above reasons" at [117] is a reference to the reasons contained in both [115] and [116].
By that finding, Council submits that the Commissioner resolved a contested issue between the parties to the modification appeal about the appropriate characterisation of the use permitted by the 2007 Consent and the 2016 Consent.
Council submits that the decision in Legge was a final and binding determination between the parties that the decision of a Commissioner of the Land and Environment Court ('Court') is capable of supporting an issue estoppel, notwithstanding that a Commissioner is not a judicial officer and that a decision in Class 1 is not an exercise of judicial power.
Council notes that Benmill does not contest whether the decision was final for the purposes of establishing issue estoppel, however in response to Benmill's position that the decision of a Commissioner of the Court could not give raise to an estoppel, Council relies upon the judgment of Gibbs J in Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59 ('Daera Guba'), and notes that the jurisdiction of a Commissioner to determine a development application and modification application appeal is derived from statute. Council further notes that the expression "judicial determination" drawn from the cases of Tomlinson and Blair v Curran was expanded upon by Gibbs J in Daera Guba, in that a non-curial decision can found an issue estoppel. Council also relied on the judgment of Leeming JA (McColl and Gleeson JJA agreeing) in Spratt v Perilya Broken Hill; Spratt v Rowe [2016] NSWCA 192 ('Spratt') at [28]-[29], which similarly affirmed this principle and noted that the proposition has not thereafter been doubted.
In response to Benmill's reliance on Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28; (2019) 236 LGERA 35 ('Bunnings'), Council submits that this authority does not provide an escape from the principle that issue estoppel can be sustained in relation to the determination of an issue notwithstanding that the decider is not a judicial officer. Council also submits that the decision of McCallum JA in McGinn v Department of Family and Community Services [2018] NSWSC 103 ('McGinn'), relied upon by Benmill, could not have been intended to be inconsistent with Court of Appeal and High Court authority. Further, Council notes the recent decision of White JA and McCallum JA in Khanna v Baweja [2019] NSWCA 193 in the Court of Appeal referred to issue estoppel arising from a determination made by the Administrative Appeals Tribunal, but did not qualify whether the decision in question concerned the declaration or creation of a right. As such, Council submits that drawing a distinction between the authorities in relation to the declaration and creation of rights is of no assistance.
Council submits that the same parties (or their privies) are involved in the current proceedings as those who were involved in Legge. Council notes that Benmill has not contested the fact that the applicant in the current proceedings are either the same party or a privy in interest of the applicant in Legge. In any event, with reference to DA forms and Mr Lesli Berger's evidence, Council submits that the applicant in Legge, Tony Legge, is an architect who was acting as the agent for or representative of the owners of the Property or was their privy. Council submits that Mr Legge and Messrs Joshua and Lesli Berger have been acting for and on behalf of Benmill in these proceedings, or at least are privies in interest.

Benmill's position

Benmill submits that issue estoppel does not arise in the current proceedings for two reasons: first, the decision of the Commissioner in a Class 1 merit appeal as a matter of law cannot give rise to issue estoppel; and, second, the Commissioner's consideration of the question involved in the current proceedings was not a question necessarily resolved in the making of the Commissioner's decision such that it was merely a step in the reasoning process.
Benmill submits that the decision of the Commissioner in Legge, being a decision of a non-judicial and non-curial character, is not capable of supporting an issue estoppel in light of the distinction that can be drawn between circumstances in which a decision-maker, in this case a Commissioner, is creating a right or imposing a liability as a discretionary administrative decision and circumstances in which they are declaring or enforcing a right or liability.
Benmill relies on comments of Preston CJ of LEC in Bunnings at [178]-[179] (citing Brennan J in Drake v Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634 ('Drake') at 643) to emphasise the distinction between the making of a discretionary administrative decision and the making of a judicial decision, in that a discretionary administrative decision creates a right in or imposes a liability on an individual, whereas a curial decision declares and enforces a right or liability antecedently created or imposed.
While Benmill accepts Council's proposition that non-curial, non-judicial decision-makers such as statutory bodies can in certain circumstances make decisions that can give rise to an issue estoppel, Benmill submits that a distinction must be drawn between the declaration of a right as opposed to the creation of a right by a statutory body. Benmill notes that McCallum J in McGinn at [26] concluded that the NSW Industrial Relations Commission "does have conferred upon it the function of making binding determinations about rights and obligations arising from the operation of the law upon past events or conduct." Benmill submits that the ability of the NSW Industrial Relations Commission to support an issue estoppel is therefore different to the decision of a Commissioner in relation to a development application appeal, as considered by the Court of Appeal in Bunnings. Benmill therefore contends that the decision in Legge is not determinative of its rights as pleaded in this cause of action.
Benmill submits that any issue estoppel would be in relation to whether the developments were substantially the same, as this was the conclusion of the Commissioner in hearing and disposing of the merit appeal. As a result, Benmill submits that for an issue to have been "necessarily resolved", as referred to in Tomlinson at [22], it must have related to whether or not the development was substantially the same. Benmill further relied on Blair v Curran at 532-533 in submitting that, as a matter of fact, the debate in Legge concerning "characterisation" was a step in the reasoning process and not a conclusion that could give rise to an issue estoppel.
Benmill notes that it is important to identify the issue of law which is said to be the subject of an issue estoppel and submits that, in this case, the Commissioner expressly found that the construction of the use approved by the 2007 Consent was not determinative of the issue. Rather, Benmill says that the relevant issue resolved was the finding of fact with respect to the proposed modifications to the sign; that is, the findings regarding the different characteristics of the present signs and the proposed signs: Legge at [116].
Further, Benmill submits that the appeals were dismissed by the Commissioner in Legge on the basis that he was not satisfied that the two developments were substantially the same: Legge at [117]. As such, the declaratory relief sought in these proceedings has nothing to do with the question of whether or not one development was substantially the same as a proposed (modified) development, and so as a question of fact it cannot give rise to an issue estoppel.
Benmill submits that the agreement expressed by the Commissioner in [115] of Legge specifically relates to the summarised submission of Mr Lancaster at [114]. Benmill notes that, as summarised by the Commissioner at [114], Mr Lancaster did not submit "that a difference in characterisation between the original and proposed altered use leads inexorably to the conclusion that the developments are not substantially the same." Benmill submits that the difference in characterisation was instead relevant to the finding that "… the different uses are not substantially the same because, among other things, they are so differently regulated by environmental planning instruments". As a result, Benmill submits that the Commissioner's statement, in [115], "I also agree that although there may be two different characterisations of the existing signs and the proposed signs; this does not by itself allow the question posed by s 4.55(2)(a) to be answered either way, but I accept that it is more supportive of the council's position on this matter", demonstrates that the conclusion relating to characterisation was on the way to an ultimate finding, but did not itself allow the question of whether the developments were substantially the same to be determined.

Consideration

I do not consider that Benmill should be precluded from bringing its claim on the basis of issue estoppel. My reasons follow.
I deal first with the question of whether the determination of a Commissioner hearing a Class 1 merit appeal is capable of grounding an issue estoppel, before considering whether the Commissioner's determination was of the requisite character such that it was "necessarily resolved as a step in reaching the determination made in the judgment": Tomlinson at [22].
In considering the doctrine of issue estoppel, I am cognisant of the approach expressed by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 ('Ramsay v Pigram') at 276 and adopted unanimously by the High Court in Kuligowski at [40]: "Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case."
For completeness and absent any contrary submissions by Benmill, I accept Council's submission that the parties involved in the current proceedings are either the same parties or the privies of the parties involved in the prior decision of Legge.
I consider that, in the present circumstances, the finding made by the Commissioner in relation to the construction of the 2007 Consent and the 2016 Consent (being a step in the reasoning process) is not capable of supporting an issue estoppel.
It is appropriate to first acknowledge that, although a Commissioner is not a judicial officer, this does not in and of itself preclude the application of the principles of issue estoppel to a decision of a Commissioner. It is accepted that non-curial and non-judicial decisions are capable of supporting an estoppel: Daera Guba at 453, Spratt at [28]-[29], Kuligowski at [22]. For example, I note that the High Court in Kuligowski unanimously determined that the decision of a review officer, who was empowered to give directions and make orders pursuant to statute, was final and could therefore give rise to an estoppel. Relevantly, the Court held at [32]: "First, the non-judicial composition of the Directorate, its functions, its speedy and informal processes, the fact that the review officers were not bound by the rules of evidence, and the substantial exclusion of legal representatives - all these things are neutral on the question of finality. The defining feature of a final decision - complete effectiveness unless and until it can be amended - may be absent from proceedings of the most formal and elaborate character, and may be present in proceedings of the most informal and brisk character. Further, as Templeman J pointed out, the legislative goal of having workers' compensation disputes heard and determined in an informal, quick and cheap manner would not be assisted by a construction of the legislation which prevented the doctrine of issue estoppel from ever applying. That would increase the chance of double litigation of issues and vexation of parties." (Footnotes omitted.)
I consider that this reasoning is applicable to the consideration of the Commissioner's decision in Legge as the statutory context and role of the non-judicial decision-maker in Kuligowski is nonetheless similar. These similarities include, for example, that in many merit appeal proceedings heard in Class 1 of the Court's jurisdiction, the Court is comprised of a Commissioner who exercises a non-judicial role; that these merit appeals are not bound by the rules of evidence; and the fact that proceedings in Class 1 (as well as Class 2 and Class 3) of the Court's jurisdiction are subject to a similar legislative goal that proceedings be conducted with expedition and with as little formality and technicality as permissible: Land and Environment Court Act 1979 (NSW) ('Court Act') s 38.
Considering the above authorities, while it is clear that the ultimate conclusion of the Commissioner in Legge (that the proposed modification was not "substantially the same") is capable of grounding an issue estoppel, what the Court is fundamentally concerned with in these proceedings, however, is whether the finding made by the Commissioner as a step in the reasoning process is of a quality to which issue estoppel attaches.
In essence, Benmill submits that, as a Commissioner deciding a merit appeal is only concerned with the creation of rights in relation to the application, the Commissioner's finding (which Benmill submits was made as a step in the reasoning process) cannot be construed as having also adjudicated a dispute regarding existing rights under the 2007 Consent and the 2016 Consent.
I accept the comments of Preston J in Bunnings upon which Benmill relies, that the determination of a development application in a merit appeal before a Commissioner is not an exercise of judicial power to adjudicate a dispute concerning existing rights and obligations. Instead, an appeal in relation to a development application is more properly characterised as a discretionary administrative decision to decide whether an applicant should be given a right. In applying the observation of Brennan J in Drake at 643 to an appeal regarding a development application, Preston J stated at [179]: "The determination of a development application by the Court on the appeal does not involve adjudication of a dispute about the existing rights and obligations of the parties to the appeal (the applicant for consent and the consent authority). Instead, the Court's function on the appeal is to decide whether the applicant should be given the right, in the form of a development consent, to carry out development on land. The object of the Court's investigation and determination of the development application the subject of the appeal, if the Court decides to grant consent to the application, is to create a new set of rights and obligations. These rights and obligations arise from the Court's order to grant consent, being rights and obligations which did not exist antecedently and independently of the making of the order: see Precision Data Holdings Ltd v Wills at 190 and also Luton v Lessels at [22], [67] and [76]. The Court's order to grant consent to a development application entitles the applicant for consent to carry out development in accordance with the consent. The consent lifts the statutory prohibition on carrying out development without consent (in s 4.2(1) of the EPA Act)."
Although the principles identified by Preston J were with respect to an appeal regarding a development application, I consider that this logic is similarly applicable to the present matter which concerns an appeal regarding a modification application, as the function being exercised by a Commissioner in hearing and disposing of an appeal regarding a modification application is likewise of an administrative character.
Adopting the above analysis, I consider that the finding of the Commissioner, which was made incidentally as a step in the process of exercising a discretionary administrative function (being the determination of a merit appeal), cannot be construed as having exercised judicial power to finally adjudicate a dispute concerning the existing rights and obligations of the parties in relation to the 2007 Consent and the 2016 Consent.
Although the Commissioner found that the use permitted by the 2007 Consent and the 2016 Consent was for a "building identification sign", the "legal quality of that fact" cannot be said to have been "finally and conclusively established" for the purposes of establishing an issue estoppel, as the Commissioner hearing a merit appeal was not exercising the requisite judicial power to determine those particular rights and obligations: Blair v Curran at 532 (citing Lord Shaw in Hoystead v Commissioner of Taxation (1925) 37 CLR 290; [1926] AC 155). As a consequence, subject to Benmill's submissions in relation to abuse of process discussed below, the parties therefore cannot be precluded from relitigating the dispute concerning their existing rights and obligations.
Although I consider my above finding to be determinative, the primary point of contention between the parties in relation to issue estoppel concerns whether the interpretation of the 2007 Consent and the 2016 Consent (being the issue for determination in the present proceedings) was "necessarily resolved" as a step in the reasoning process in reaching the Commissioner's final decision, such that the principles of issue estoppel presently arise.
I consider that the relevant test to be applied is whether the determination of the Commissioner was necessarily resolved as the legal foundation or justification of, and therefore legally indispensable to, the Commissioner's conclusion, as considered by Dixon J in Blair v Curran at 531-533: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R v Inhabitants of the Township of Hartington Middle Quarter, at p 293, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of the fact' must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation." (Emphasis added.)
For the reasons below, I find that the question before the Court in these proceedings, being the correct construction of the 2007 Consent and the 2016 Consent, was a matter incidental or subsidiary to the final decision of the Commissioner in Legge and was not therefore necessarily resolved on the way to finding that the proposal the subject of the modification appeal was not substantially the same.
In reaching my finding, I accept the fact that the principles of issue estoppel are not confined to the final legal conclusion in relation to the cause of action pleaded: Blair v Curran at 532. In addition, I note that the High Court in Kuligowski (referring with approval (at [40]) to the judgment of Barwick CJ in Ramsay v Pigram at 276 (at [55] above)) explicitly distinguished issues that may give rise to an issue estoppel from the cause of action they concern.
However, although Tomlinson at [22] specifically contemplated the ability for an issue resolved "as a step in reaching the determination" to give rise to the principles of issue estoppel, as opposed to only the final legal conclusion itself having that quality, I note that any such step cannot be subsidiary or collateral to the decision in order for estoppel to arise. Further, "Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.": Blair v Curran at 532-533 (emphasis added).
It is clear that the Commissioner considered the difference between the different constructions of use permitted by both the 2007 Consent and the 2016 Consent to be one of the factors which led to his ultimate finding: Legge at [114], [116]. However, critically, the Commissioner specifically acknowledged at [115] that the resolution of the "characterisation" issue was not determinative. Instead, he found that it was "more supportive of the council's position", stating: "... I also agree that although there may be two different characterisations of the existing signs and the proposed signs; this does not by itself allow the question posed by s 4.55(2)(a) to be answered either way, but I accept that it is more supportive of the council's position on this matter."
I accept Benmill's submission that the above extract from Legge at [115] demonstrates that the Commissioner's finding in relation to the construction of the consent was incidental or collateral to his conclusion that the two developments were not the same, and, to adopt the expression of Dixon J noted above, that the finding amounts to "no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend".
Further to my finding, I note that there is an alternate expression of the test which suggests that, in circumstances where multiple factors are credited as contributing to an ultimate decision, it is only the findings which, if negatived, would defeat the claim that are capable of supporting an estoppel: Blair v Curran at 532. In the circumstances, noting that the Commissioner has explicitly acknowledged that the question of construction was not determinative, it is not possible to deduce whether, absent the finding of the Commissioner in relation to the construction of the 2007 Consent and the 2016 Consent, the ultimate decision of the Commissioner would otherwise have been different. To the extent that this test is of assistance, I do not consider that it has been satisfied.
In addition, I note that the absence of any realistic prospect of an appeal in relation to an issue is another test, albeit not a conclusive one, which may indicate whether an issue determined was fundamental to the ultimate finding: Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 at [258] (where Tobias JA noted the test referred to by Mance LJ in Sun Life Assurance Co of Canada v Lincoln National Life Insurance Co [2005] 1 Lloyd's LR 606 at 621). In the circumstances, as s 56A of the Court Act allows an appeal against a decision of the Court in proceedings in Class 1 of the Court's jurisdiction "on a question of law", I consider that there was an absence of any realistic prospect of an appeal by Benmill given that, as Benmill submits, it is unlikely that an error of law could be found in the Commissioner's finding as a step in the reasoning process and that, even if such an error was found, it would then be sufficient to vitiate the decision.
In light of the above, I find that the question of construction of the 2007 Consent and the 2016 Consent was a matter subsidiary or collateral to the Commissioner's ultimate decision and thus was not necessarily resolved as a step in reaching the Commissioner's final determination. As such, I do not find that the decision of the Commissioner in Legge is capable of supporting an issue estoppel.

Council's position

In the alternative to its submissions concerning issue estoppel, Council submits that the principles of abuse of process prevent Benmill from contending that the development consents are for the purpose of roof or sky advertisements.
Council submits that abuse of process may be invoked in areas in which estoppel is also applied as it is inherently broader and more flexible than estoppel and may be used in any circumstance in which the use of a court's procedures would be unjustifiably oppressive to a party or bring the administration of justice into disrepute.
Council submits that the present proceedings are an attempt to relitigate an issue that has already been decided between the parties, in a decision that could have been appealed but was not. Council further submits that if the declarations sought were to be granted, there would be inconsistent decisions of this Court about the construction of the development consents, an outcome that would bring the administration of justice into disrepute.
Council further submits that there is a public interest in the finality of litigation and that successive proceedings concerning substantially the same claim would be against this interest: UBS AG v Tyne (2018) 360 ALR 184; [2018] HCA 45 at [1] (Kiefel CJ, Bell and Keane JJ), [61]-[66] (Gageler) ('UBS v Tyne')
Council submits that the Commissioner's decision in Legge would "very comfortably" have formed the basis for an appeal under s 56A of the Court Act and therefore Benmill's submission that there were lack of grounds for an appeal should not prevent an abuse of process.
Finally, in reply to Benmill's submission that any abuse of process would fal in the hands of Council, Council submits that this contention should not be considered as neither Benmill's submissions nor points of claim in the current proceedings allege either an abuse of process or an estoppel against Council.

Benmill's position

Benmill submits that there is no abuse of process in bringing the current proceedings to determine the nature of the rights it enjoys. Benmill submits that the decision of the Commissioner was not determinative in relation to the continued use of advertising on the roof of the building and, as such, there is utility in the declarations sought as its present rights are affected and the future position of Council is relatively certain: Rich v Lennox Palms Estate Pty Ltd [2010] NSWCA 242 at [44]-[49]. Absent the relief sought, Benmill says that it will not be able to modify the existing approved signs, and it is suffering financial loss as a consequence of the position taken by Council as it is unable to renew leases.
Benmill submits that any abuse of process would conversely fall in the hands of Council, as Council previously asserted that the proposed development was for a "roof or sky development" in the 2007 proceedings before the Senior Commissioner.
Benmill, repeating its submission in relation to the issue estoppel claim, contends that it is irrelevant that no appeal was commenced pursuant to s 56A of the Court Act against the "decision" of the Commissioner in Legge as the current proceedings concern, at most, a step in the reasoning of the Commissioner in reaching his decision, and that there was ultimately no utility or legal error that would have grounded an appeal from the Commissioner's final determination as to whether or not it, the proposal then before the Commissioner, was substantially the same. Accordingly, even if the finding in relation to the construction of the 2007 Consent was in error, as that aspect of the reasoning was not determinative, then it could not have vitiated the decision that the modified proposal was not substantially the same.
Benmill submits that there was no utility for it to appeal against the decision in Legge with respect to the characterisation of the sign under the 2007 Consent and/or the 2016 Consent, as the Court had made findings of fact that the proposed modification the subject of the application was not "substantially the same", which were not amenable to an appeal on a question of law. Benmill says that any remitter could not have achieved a different result in the circumstances.
Having regard to Council's conduct in the proceedings for the grant of the 2007 Consent, Benmill further submits that any abuse of process falls in the hands of Council, as Council had previously asserted that the proposed development was for the purposes of "roof or sky advertisement". Benmill contends that the principles of finality of litigation and avoidance of conflicting decisions should not be invoked in circumstances where the application of such principles could perpetuate a miscarriage of justice: Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 ('Brown Brothers') at [208]-[209].

Consideration

The doctrine of abuse of process has been subject to extensive judicial consideration. The doctrine is of a broader application than issue estoppel, in that it may be invoked in circumstances which do not give rise to an issue estoppel if the continuance of the proceedings would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which had already been disposed of by earlier proceedings: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ('Aon') at 193 (French CJ citing Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77), UBS v Tyne at [62]-[63] (Gageler J citing Tomlinson at [26]), at [43] (Keifel CJ, Bell and Keane JJ also citing Tomlinson).
The relationship between issue estoppel and abuse of process was helpfully explained by French CJ, Bell, Gageler and Keane JJ in Tomlinson at [24]-[26]: "[24] ... The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding. [25] Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel. [26] Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel." [Footnotes omitted.]
The doctrine of abuse of process is also intimately tied to the function of the Court to facilitate just, quick and efficient resolution of litigation and is thus intended to prevent any attempts by a party to avoid these fundamental principles. This is not merely a matter of concern to the parties or the Court; it is also a matter of public interest: UBS v Tyne at [38] (Keifel CJ, Bell and Keane JJ).
In light of my findings on issue estoppel above (that the question for determination in the present proceedings was not "necessarily or directly resolved" by the Commissioner) and for the reasons that follow, I do not consider that the reagitation of the issue regarding the construction of the 2007 Consent and 2016 Consent constitutes an abuse of process. As made clear by Dixon J in Blair v Curran, a finding which amounts to no more than "steps in a process of reasoning" that is supportive of the final conclusion, does not estop the parties if the same matters of law arise in subsequent litigation.
In this respect, I consider that my finding in relation to issue estoppel provides some response to the claim made by Council in relation to abuse of process, in the sense that the parties cannot be precluded from relitigating the issue of the construction of the 2007 Consent and the 2016 Consent and thus rely on similar submissions to those which had been made before the Commissioner in Legge. As such, I do not accept Council's submission that the present proceedings constitute an abuse of process because similarities exist in the submissions of Benmill in the prior proceedings (being Legge) and the present proceedings in relation to the construction of consents.
As noted previously, the Commissioner in Legge was concerned with exercising a discretionary administrative function to hear and dispose of a merit appeal and that, as a step in the reasoning process, he considered the question of construction of the consents. Again, I do not consider that the finding of the Commissioner in relation to the construction of the consents can be said to have "finally and conclusively" adjudicated the dispute concerning the existing rights and obligations established by the 2007 Consent as, first, the finding was not legally indispensable to his conclusion; and, second, to view the Commissioner's finding as adjudicating existing rights and obligations necessarily requires that the Commissioner to have exercised judicial power.
I do not accept Council's submission that the present proceedings are either unjustifiably oppressive to Council or that their continuance would bring the administration of justice into disrepute. To the contrary, I consider that it would be oppressive not to allow the parties to relitigate an important issue concerning their existing rights and obligations which were incidentally considered as a step on the way to deciding a merit appeal in Class 1 of the Court's jurisdiction where, inter alia, the rules of evidence do not apply. The more appropriate forum to determine the correct construction of the 2007 Consent and 2016 Consent is in Class 4 of the Court's jurisdiction. As a result, I do not consider that preventing the relitigation of this issue in Class 4 of the Court's jurisdiction to be against the public interest as Council submits.
Further, as noted above and given my finding that the question of construction was incidental to the Commissioner's final conclusion, I accept Benmill's submission and find that there was limited or no utility in an appeal as any such appeal on that particular aspect of the dispute was unlikely to be either available or successful. As such, I do not consider Benmill's failure to appeal to be indicative that the present proceedings are an abuse of process.

Construction of the 2007 Consent

I now turn to the question of construction of the consent granted by the Senior Commissioner in the form of an order of the Court in Benmill v North Sydney Council [2007] NSWLEC 680, being the 2007 Consent. As noted above, Benmill seeks relief as to the nature of the use approved for the signs and submits that the term "roof sign" in the orders of the Court which comprise the development consent is properly construed as a "roof or sky advertisement" for the purposes of Pt 3 of SEPP 64. To the contrary, Council submits that the correct construction of the term is that the approved use of the signs is for the purposes of a "building identification sign". A summary of the respective positions of the parties follows.

Benmill's position

Benmill submits that in order to resolve what it submits to be the ambiguity present in the 2007 Consent, the starting point is to construe the plain and ordinary meaning of the words of the order. Benmill submits that the terms of the 2007 Consent do not contain any express limitation in terms of prohibiting the use of the approved sign for the purposes of any form of "advertising", or any express limitation to the use of the approved sign for the purposes of a "building identification sign".
Benmill submits that, if the Court were to find that the terms of the 2007 Consent as to a "roof sign" were ambiguous or susceptible to more than one meaning, the Court may have regard to extrinsic material to resolve this ambiguity. Benmill relies on various authorities to support this proposition: Brown Brothers at [167], Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 ('Athens') at [29], Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 ('Sertari') at [81], Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 ('Ross') at [30], and Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [245], [60]-[62].
Benmill submits that as the order of the Senior Commissioner (comprising the 2007 Consent) reflects the findings and reasoning at trial, the primary source of extrinsic material are the reasons for judgment: Ross at [30] and Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 at [24]. Benmill notes that such material may include "reference to the proceedings in which the judgment is given, particularly the pleadings": Athens at [140(c)]; Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 at [60]-[62].
Benmill submits that textual indications from the judgment and the pleadings before the Senior Commissioner (including those referred to in Annexure A to Benmill's submissions) indicate that the use approved by the Court was for a "roof or sky advertisement", including: first, the 2007 Consent imposes a 10 year time limitation in relation to the approved "roof sign", with the note thereto (at [9] above) recording that the reason for the condition was to recognise that the provisions of SEPP 64 and the 10 year time limitation provision which only applied to a "roof or sky advertisement" under cl 21(2); second, Benmill submits that the Court had before it generally agreed facts that the proposed development was to replace existing signage on the Property which were agreed to be "roof or sky advertisements"; third, the Court had before it evidence regarding a State Environmental Planning Policy No 1 - Development Standards objection relating to non-compliance with cl 21 of SEPP 64, noting that cl 21 only applies to "Advertisements" under Pt 3 and does not apply to a building identification sign; fourth, even if the Court were to apply the principles of construction applicable to a development consent (rather than the approach above to the construction of court orders), the result would be the same; and, fifth, absent words of limitation with respect to the use of the approved "roof sign", none should be implied: Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432 ('Canny') at [60]-[64], Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 ('Tropic Asphalts').
Further, by applying "a fair but liberal reading" of the use rights it confers, Benmill submits that the construction of the 2007 Consent leads inexorably to the conclusion that the Court approved an "advertising sign", and specifically a "roof or sky advertisement".
In the alternative, Benmill submits that, as the 2007 Consent can be reasonably construed as granting consent for the building of, but not the use of, the signs, s 81A(1) of the EPA Act (as in force at the time) allows for the use of the approved building to be derived from the purpose specified in the development application. This provision provided: 81A Effects of development consents and commencement of development (1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.
Benmill submits that the development application and supporting documentation in relation to the 2007 Consent make clear that the purpose of the use of the new building was to "relocate", "reinstate" or indeed "re-use" the existing advertising signage on the Property, which was the purpose of the use for which the approved "building" (being the approved "roof sign") was to be erected under the 2007 Consent as specified in the development application. Benmill refers to references contained in the development application, the Statement of Environment Effects, and the Statement of Heritage Impact.
Further, Benmill notes that the existing signage had already been approved by Council expressly for the purposes of "advertising". That is, the existing advertising signs to be relocated were approved in the 1996 Konica Consent and the existing advertisement of "Bayer" and the associated logo displayed was approved in the 1996 Bayer Consent.

Council's position

In the event that Benmill is not precluded from maintaining its claim by issue estoppel or abuse of process, Council submits that neither the 2007 Consent nor the 2016 Consent grants consent for the purpose of a "roof or sky advertisement".
Council submits that the use permitted by the 2007 Consent is for a "building identification sign" and that the development the subject of the 2016 Consent is properly construed as the continued use of the building identification sign the subject of the 2007 Consent.
Council submits that, as the proceedings raise issues of construction and characterisation of the development consents that are identified in the declarations sought, the terms of other historical consents granted prior to 2007 in respect of the Property are not material and notes that, in any event, SEPP 64 only commenced in 2001. Council further submits that it is unnecessary to have recourse to the 'context' to which Benmill refers; rather, Council says that the appropriate starting point is to read the order and its reference to "roof sign" by looking to the approved plans to identify the character of the development to which consent has been given.
Council submits that it is necessary to look to the range of potential uses of the sign available under SEPP 64 to identify which use the 2007 Consent granted by the Senior Commissioner falls within. Council submits that there is no doubt that the Bayer signage approved in the 2007 Consent does not include "general advertising of products, goods or services"; instead, the signage instead identifies the name of the building. Council says that there is no reason to 'read up' the approval of a "roof sign" in the 2007 Consent from a "building identification sign" to an "advertisement" so as to permit a more intensive use as an advertisement.
Council notes that, prior to its later modification on 9 September 2016, Condition A2 of the 2016 Consent sought to clarify the scope of the approved signage by stating that consent was granted for a "building identification sign" (at [10] above). In the modification to the 2016 Consent, Council deleted that reference and modified Condition A2 so as to read "continued use of roof sign". Council submits that it may be inferred that this modification was made to ensure consistency of terminology with the 2007 Consent, and that the assessment report indicates that Council considered that the wording "building identification sign" was nonetheless a functionally appropriate definition.
In any event, Council submits that the usage of the above descriptions does not alter the proper construction of the 2007 Consent, as the matter before the Court is a question of the application of the legal meaning of defined terms in SEPP 64 and not how it has previously been referred to by the parties: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [88].
In response to Benmill's submission that the 10 year time limitation in Condition A2 of the 2007 Consent indicates that it was "roof or advertising signage" for the purposes of SEPP 64, Council submits that Benmill gives the note under the condition (at [9] above) too much work to do in circumstances where the "Reason" referred to in the note is not specific. Council says that the 'recognition' therein is not tied specifically to the time limit for a roof or sky advertisement and that there are other provisions which could allow the consent authority discretion to impose such a time limit. As such, Council contends that the 'recognition' of SEPP 64 in the note in Condition A2 is a general rather than a specific recognition of SEPP 64 and does not constitute an acceptance of the time limitation that applies solely to a roof or sky advertisement.
Council submits that the contextual matters referred to by Benmill (including those in Annexure A to its submissions) are of little if any weight to the question of construction of the 2007 Consent. Instead, Council submits that it is necessary to assess the character of the signage applied for against the various categories of signage in SEPP 64 at the time of the 2007 Consent and that, upon fair consideration, the proper construction of the use approved in the 2007 Consent is for a "building identification sign".
Council submits that Benmill's alternative argument (that former s 81A(1) of the EPA Act permits the use of the building as advertising signage as the purpose of the development may be derived from the development application) is flawed as it requires the assumption that the Bayer signage for which consent was granted was advertising signage. Council reiterates its submission that, on the proper construction of the signage for which consent was sought, the consent was not for an advertisement but rather for a building identification sign.

Consideration

The construction of the order made by the Senior Commissioner in Benmill v North Sydney Council [2007] NSWLEC 680, being the 2007 Consent, is not without some nicety. Simply stated, as Benmill seeks to establish that the 2007 Consent was granted for the purposes of a "roof or sky advertisement" as that term is defined in SEPP 64, and Council contends that the approved use of the signs is for the purposes of a "building identification sign", consideration of the terms of the Court's order is necessary. The determination of the use permitted by the 2007 Consent is also relevant to the construction of the 2016 Consent, as the use permitted by the 2016 Consent was for the "continued use of roof sign" in a manner which "[reflected] the description of the sign originally approved by the Land & Environment Court [in the 2007 Consent]".
SEPP 64, which commenced operation on 16 March 2001, applies to the whole of the State, including all land and structures within the State and to all signage that can be displayed with or without development consent and that is visible from any public place or public reserve (cll 5(1), 5(2) and 6(1)). As the submissions of the parties make reference to various provisions of SEPP 64, the relevant provisions at the time of the 2007 Consent provided as follows: Part 1 Preliminary … 3 Aims, objectives etc (1) This Policy aims: (a) to ensure that signage (including advertising): (i) is compatible with the desired amenity and visual character of an area, and (ii) provides effective communication in suitable locations, and (iii) is of high quality design and finish, and (b) to regulate signage (but not content) under Part 4 of the Act, and (c) to provide time-limited consents for the display of certain advertisements, and (d) to regulate the display of advertisements in transport corridors, and (e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors. (2) This Policy does not regulate the content of signage and does not require consent for a change in the content of signage. 4 Definitions (1) In this Policy: advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement ... building identification sign means a sign that identifies or names a building, and that may include the name of a business or building, the street number of a building, the nature of the business and a logo or other symbol that identifies the business, but that does not include general advertising of products, goods or services. ... business identification sign means a sign: (a) that indicates: (i) the name of the person, and (ii) the business carried on by the person, at the premises or place at which the sign is displayed, and (b) that may include the address of the premises or place and a logo or other symbol that identifies the business, but that does not include any advertising relating to a person who does not carry on business at the premises or place. ... roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building. ... signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes: (a) building identification signs, and (b) business identification signs, and (c) advertisements to which Part 3 applies, but does not include traffic signs or traffic control facilities. … Part 2 Signage generally 8 Granting of consent to signage A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied: (a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1. Part 3 Advertisements Division 1 General 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. ... Division 2 Control of advertisements ... 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. ... Division 3 Particular advertisements … 18 Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road (1) This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road. (2) The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of the RTA. (3) In deciding whether or not concurrence should be granted, the RTA must take into consideration: (a) the impact of the display of the advertisement on traffic safety, and (b) the Guidelines. (c) (Repealed) (4) If the RTA has not informed the consent authority within 21 days after the copy of the application is given to it under clause 17 (3) (c) (ii) that it has granted, or has declined to grant, its concurrence, the RTA is taken to have granted its concurrence. (5) Nothing in this clause affects clause 16. (6) This clause does not apply when the Minister for Planning is the consent authority. ... 21 Roof or sky advertisements (1) The consent authority may grant consent to a roof or sky advertisement only if: (a) the consent authority is satisfied: (i) that the advertisement replaces one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed, or (ii) that the advertisement improves the finish and appearance of the building and the streetscape, and (b) the advertisement: (i) is no higher than the highest point of any part of the building that is above the building parapet (including that part of the building (if any) that houses any plant but excluding flag poles, aerials, masts and the like), and (ii) is no wider than any such part, and (c) a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct and the display of the advertisement is consistent with the development control plan. (2) A consent granted under this clause ceases to be in force: (a) on the expiration of 10 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. (3) The consent authority may specify a period of less than 10 years only if: (a) before the commencement of this Part, the consent authority had adopted a policy of granting consents in relation to applications to display advertisements for a lesser period and the duration of the consent specified by the consent authority is consistent with that policy, or (b) the area is undergoing change in accordance with an environmental planning instrument that aims to change the nature and character of development and, in the opinion of the consent authority, the proposed roof or sky advertisement would be inconsistent with that change.
The central issue between the parties springs from the orders made by the Senior Commissioner on 22 November 2007: "1 The appeal is upheld. 2 Development application for the re-cladding of the existing building at 275 Alfred Street, North Sydney and the erection of a roof sign is determined by the grant of consent subject to the conditions in Annexure A. 3 The exhibits are returned except Exhibit D."
As "roof sign" is not defined in SEPP 64, I consider that the threshold question to be determined is whether the words "roof sign" are susceptible to more than one meaning. The approved plans are necessarily incorporated as part of the orders of the Court given that the approved plans were included within the conditions being Annexure A to the orders.
To determine the appropriate construction of the orders, it is necessary to first consider the plain meaning of the words of the orders, which did not refer to the signs as either a "roof or sky advertisement" or as a "building identification sign" but instead referred to the signage as "roof sign". While it is clear that the judgment itself does not form part of the orders made by the Senior Commissioner, both parties accept that, to the extent that the orders contain ambiguity (a matter not accepted by Council), it is appropriate to give consideration to the Senior Commissioner's reasons.
Although not determinative, in passing I note that ambiguity is conceptually related to, but distinct from, a situation where an order made does not reflect the intention of a court.
As a preliminary matter, I accept the fact that "roof sign" was not a defined term under SEPP 64 and does not in itself create an ambiguity that permits recourse to the detailed background matters of context raised by Benmill. While it is sometimes considered as an "open question" (Sertari at [81]) as to whether, before resort can be had to the reasons for judgment of a court for the purpose of construing its orders, particularly where the language of the orders concern an alleged breach of an injunction which may sound in contempt, the orders must contain an ambiguity before a court can have regard to extrinsic evidence (Brown Brothers at [167]), I consider that the appropriate approach in the present matter is to read the orders and the reference to roof sign, including the conditions and approved plans, to identify the character of the development. Only if ambiguity is found after that point may recourse be had to context. Context in this sense, and at this stage, is confined to the reasons for judgment.
Council submits that, with the plans in mind, if consideration is then given to the definition of "building identification sign" in SEPP 64, the signs approved by the 2007 Consent do not include general advertising of products, goods or services but rather identify the name of the building. Council submits that those matters lead to the view that the "characterisation" of that which has been consented to is a building identification sign.
The apparent simplicity in this approach is attractive, however I do not consider it persuasive and that, when consideration is given to the plain meaning of the term "roof sign" along with the approved plans and the conditions, I initially observe little more than what is obviously a reasonably large structure at the top of the building which provides for the display of three large signs with the "BAYER" logo and lettering in various differing forms noted above. As such, and for the reasons below, the wording of the order and perusal of the plans do not, on their own, lead me to the view that that the development approved is either a "building identification sign" or a "roof or sky advertisement".
Despite the fact that the signage depicted by the approved plans has some of the indicia of a building identification sign, I consider that ambiguity arises when the words of the order and the annexed conditions are considered as the conditions for both the 2007 Consent and the 2016 Consent each contain a time limitation condition for the purpose of either recognising or satisfying the provisions of SEPP 64. As noted above, SEPP 64 does not contain any requirement that consent for a building identification sign be time constrained; instead, time limitations are only required to be imposed in the context of general advertising under Pt 3 of SEPP 64 or specifically in relation to "roof or sky advertisements" pursuant to cl 21(2). Although a consent authority may exercise discretion to impose a time limitation in any event, the fact that the "Reason" specifically noted in Condition A2 of the 2007 Consent (and Condition A3 of the 2016 Consent) states that the condition is to "satisfy" or "recognise" the provisions of SEPP 64, in my view indicates that the condition must have been intended to fulfil the requirements of a Pt 3 advertisement which, pursuant to cl 9, does not include a building identification sign. Therefore, and in light of indicia such as the fact that the approved "roof sign" is above the parapet of the building, it appears that use permitted by the 2007 Consent and 2016 Consent is indeed open to more than one possible interpretation.
Therefore, in the present circumstances, given that both parties accept that the Senior Commissioner was determining the matter in accordance with SEPP 64; that he did not use any precise term discretely available under that policy; and that neither interpretation proffered by the parties could be said to contradict the "plain meaning" of the words "roof sign", I consider that the language used in the orders is susceptible of more than one meaning. Thus, I consider that it is appropriate and necessary to proceed to consider the reasons included in the judgment of the Senior Commissioner: Athens at [29], [135]-[136], Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [30], Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [60].
In adopting this approach I am conscious of the comments of Santow JA in Athens at [129]: "To pose the question as simply, can ambiguity in court orders be resolved by reference to their external context, obscures the point of what an order sets out to do. The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order..."
Further, at [136], his Honour continued: "...When the meaning of an order is ambiguous, and that ambiguity is not able to be resolved solely by reference to the judgment itself, resort may be had to the proceedings and in particular the pleadings, which provide an interpretive context. Thus it can be highly relevant to know what the successful claimant sought by way of relief. The judgment may need to be understood by reference to how the parties put their cases."
With the above approach in mind, and having found that the language of the orders and the conditions are susceptible to two meanings, consideration needs to be given to the reasons of the Senior Commissioner which were compendious, comprising eight paragraphs. For clarity, I set out these reasons in full as follows: "[1] This is an appeal against two conditions contained in the consent dated 3 August 2007 by North Sydney Council (the council) to a development application for the re-cladding of the existing building at 275 Alfred Street, North Sydney and the erection of a roof sign. The effect of the two conditions is to exclude the roof sign from the consent. [2] The existing building, built about thirty years ago, is much higher than its neighbours and the maximum statutory height that now applies to the site. From the northwest to the southwest the building faces the Warringah Expressway and the North Sydney commercial centre. In the other direction it faces mainly residential areas where most of the buildings are two-storey high. The sign, as originally proposed by the applicant, would result in increasing the height and therefore the impact on nearby residential areas. The council's objections are based on the increased impact on the residential areas. [3] Several statutory instruments are relevant to the application. State Environmental Planning Policy 64 - Advertising and Signage (SEPP 64) applies. The North Sydney Local Environmental Plan 2001 (the LEP) and the North Sydney Development Control Plan (the DCP) also apply. The latter includes a section dealing with Outdoor Advertising. [4] During the site visit the Court inspected the property of an objector, Ms Rosemary Dermody, at 3 Bray Street. The approved design takes into account Ms Dermody's concerns. [5] The Court benefited from the assistance of no fewer than four experts. Dr Richard Lamb, a visual analyst, and Mr Stuart Verity, a town planner and urban designer, gave evidence in the applicant's case. Mr Geoffrey Baker, an architect and urban designer, and Mr Ian Pickles, a town planner with the council, gave evidence in the council's case. Mr Duncan Wood, an architect and the designer of the proposal, gave explanatory evidence. [6] Following the site visit, the experts joined in conference in an attempt to reach a design solution that would meet the concerns of the council's experts as well as fulfil the applicant's objectives. While the conference had moved towards agreement, it did not quite reach it. In a process that was much more akin to a design studio than a Court hearing, the conference continued when the Court reconvened at 2 pm. Eventually a solution was devised that all experts considered satisfactory. The main difference between the agreed design and the original application is that the agreed design reduces the size of the advertising sign towards the east (ie the residential areas) and increases it towards the west (ie the Expressway and North Sydney commercial area). [7] It was common ground that, since the new design for the sign decreases its impact towards the residential areas, there was no requirement for re-notification. The experts agreed that the new sign is in part higher and wider than the existing and that pursuant to cl 28G of the LEP and to cl 21(1)(b)(i) of SEPP 64 the applicant must lodge an Objection under State Environmental Planning Policy 1 - Development Standards to the requirement that height and width must not be increased. The applicant lodged an Objection to that effect. The experts agreed that the decrease in the dimension of the sign towards the residential areas justified the increase in dimension towards the Expressway and the commercial area, and that therefore the Objection was well founded. Although this was not specifically stated, I assume on the basis of Mr Pickle's agreement that the revised proposal was acceptable, that the revised proposal is consistent with the DCP. [8] The council submitted that, despite Mr Baker and Mr Pickles' agreement, it did not support the amended design for the sign because it included larger letters for the word "bayer" than the existing ones. However, since all four experts agreed that the proposed sign was acceptable and an improvement on the original, the weight of evidence supports the approval of the application. The appeal is therefore upheld."
To the extent that material beyond the reasons for judgment is sought to be relied upon, I consider that, subject to matters below, it would be permissible to look at the nature of the application of the party seeking the orders. To the extent that documents do not resolve the question, the submissions made in the course of the application may be considered. In the present circumstances, however, I do not consider that recourse to such material is necessary as consideration of the orders and reasons of the Senior Commissioner, the conditions imposed, and my perusal of the approved plans is sufficient to lead me to the view, that the appropriate construction of the use permitted by the 2007 Consent and thereafter the 2016 Consent is for a "roof or sky advertisement". My reasons follow.
First, the reasons of the Senior Commissioner refer, at [7], specifically to cl 21(1)(b)(i) of SEPP 64, which (as noted in the extract of SEPP 64 above) specifically relates to "roof or sky advertisements". That is, SEPP 64 provides that the consent authority, be it Council or the Court on appeal, may grant consent to a "roof or sky advertisement" only if "the advertisement" is "no higher than the highest point of any part of the building that is above the building parapet (including that part of the building (if any) that houses any plant but excluding flag poles, aerials, masts and the like)". Put simply, the requirement to lodge an objection pursuant to SEPP 1 for relaxation of what would otherwise be a development standard arises pursuant to cl 21(1)(b)(i), which is a requirement that is only applicable to "roof or sky advertisements".
Second, although it is common ground between the parties that the term "roof sign" is not a defined term in SEPP 64, Condition A2 of the 2007 Consent imposed a 10 year time limitation in relation to the approved "roof sign" in circumstances where a 10 year time limitation provision in SEPP 64 only applied to a "roof or sky advertisement" pursuant to cl 21(2). I note that Condition A3 of the 2016 Consent contains a condition in similar terms. As submitted by Benmill, the fact that there was no time limitation under Pt 2 of SEPP 64 in relation to a "building identification sign" is indicative of the fact that the "Reason" referred to in Condition A2, being "To recognise the provisions of SEPP No. 64 - Advertising and Signage", was intended to reflect the 10 year time limitation applicable only to roof or sky advertisements.
Although Council pointed to other provisions of SEPP 64 which allow for a 15 year time limitation that may be reduced by a consent authority, it is relevant to note that the only references to time limitations in SEPP 64 occur within Pt 3 - that is, in relation to advertising signage which, by operation of cl 9, specifically excludes building identification signs. As such, I consider the fact that Condition A2 of the 2007 Consent and Condition A3 of the 2016 Consent each provide for a time limitation period to recognise and satisfy "the provisions of SEPP No. 64 - Advertising and Signage" is indicative of the fact that the use permitted must, at the very least, be for advertising. Further, the specific "10 year" time limitation nonetheless supports the construction that the 2007 Consent was for a "roof or sky advertisement" in accordance with cl 21.
Third, the Senior Commissioner expressly uses the word "advertising" in the last sentence at par [6] of his reasons noted above, when describing the "advertising sign towards the east".
Fourth, a further reference, although of little assistance, is made in par [3], where the North Sydney Development Control Plan ('DCP') is noted by the Senior Commissioner to include a section dealing with "Outdoor Advertising". A further reference to the DCP is made at [7].
Further, in noting the agreement of the experts as to the acceptability of the proposed signage, the Senior Commissioner recorded the agreement that the proposal was "an improvement on the original" and, although not determinative, subcll 21(1)(a)(i) and (ii) of SEPP 64 each requires that the consent authority be satisfied that "the advertisement improves" either the visual amenity of the locality or the finish and appearance of the building and the streetscape.
I consider that the above matters, while individually not determinative, collectively demonstrate that the proper construction of the 2007 Consent, and consequentially the 2016 Consent, is development consent for a "roof or sky advertisement" as that term is defined under SEPP 64.
Given my findings above, I do not need to consider Benmill's alternate submission, relying upon s 81A of the EPA Act (as it was at 22 November 2007) that, assuming the use for which the approved building was to be erected (which was to relocate "existing advertising signage"), meant that development consent for the erection of those works was itself sufficient, to authorise the use for advertising. In any event, I accept Council's position that this submission requires the assumption that the Bayer signage which was being "relocated" was advertising signage.
For completeness, I note that Benmill also relies upon the principles governing the construction of development consents as summarised in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158]. Benmill also notes that in Canny, at [70]-[71], Payne JA agreed with the well-known comment of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 324 that any lack of clarity or certainty is the responsibility of the consent authority and it must "take the consequences" of any failure to specify accurately or in detail what is consented to. While I consider that this aphorism does not have specific application in this matter, I have given consideration to those principles in making my findings above.
In summary, although as submitted by Council the development the subject of the 2007 Consent could be said to have the name of the business and a logo, and possibly other indicia under the definition of building identification sign, and does not on its face (that is the plans the subject of the consent) appear to be consistent with "general advertising of products, goods or services", I have concluded, however, that this is not the better view of the 2007 Consent. I consider that the orders of the Senior Commissioner, which include the conditions annexed thereto, are susceptible of more than one meaning such that recourse to the reasons for judgment is necessary to resolve this ambiguity. As such, the specific references in the reasons of the Senior Commissioner which undoubtedly direct attention and give consideration to discrete clauses and expressions that appear specifically in SEPP 64 as relating to advertising and advertisement and, more particularly, "roof or sky advertisement", lead me to the view that that which was the subject of the 2007 Consent is properly construed as a consent for a "roof or sky advertisement" as that term is defined by SEPP 64.

Conclusion

For the reasons above, I consider that Benmill is entitled to the relief it seeks and, in accordance with its submissions at hearing, appropriate relief is encompassed by a declaration generally in accordance with par (3) of the amended summons filed 24 August 2018 which relates to the 2016 Consent.
To the extent that it was suggested by Council that there was an absence in utility in the relief sought, I consider that, in light of the evidence marshalled on behalf of Benmill and in particular the material in the affidavits read, it is appropriate that declaratory relief be granted.
The usual course in Class 4 proceedings is that costs follow the event, however as there may be other circumstances in relation to costs which have not been the subject of evidence or submissions, unless an application is made by notice of motion before 12 May 2020, I will order that North Sydney Council pay Benmill Pty Ltd's costs of the proceedings.

Orders

Accordingly, I make the following orders: 1. Declare that, on its proper construction, Development Consent D163/16 granted by North Sydney Council on 11 July 2016 and modified on 9 September 2016 in respect of property being Lot 1 in DP546856, known as 275 Alfred Street, North Sydney, is for a "roof or sky advertisement" as that term is defined under SEPP 64. 2. Unless an application is made by notice of motion before 12 May 2020 for an alternate order, North Sydney Council is to pay Benmill Pty Ltd's costs of the proceedings.

Approved Plans (325 KB, pdf) 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: 05 May 2020

UBS AG v Tyne (2018) 360 ALR 184; [2018] HCA 45 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Category: Principal judgment Parties: Benmill Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: I J Hemmings SC with A Hemmings (Applicant) R P L Lancaster SC (Respondent)

(2018) 233 LGERA 432

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