Bunnings Building Supplies Pty Ltd v Auburn Council

Land and Environment Court (NSW)|2003-09-18|Before: Pain J, Mr P

The Applicant contends that no matter how great the distance separating these two groupings of elements, they are nonetheless a single sign. In support of this proposition, Dr Richard Lamb, an expert witness on visual impacts, gave evidence on behalf of the Applicant. Dr Lamb's written statement of evidence describes the proposal as consisting of "2 painted signs on the site of the Bunnings Warehouse …" (at 1.4). At 3.4 under the heading "Is the signage proposed one sign or two signs?" Dr Lamb states: It is an objective matter that the signage proposed is separated into two parts, in effect two physical signs.

He continued later in the paragraph: It is my view that a typical viewer, other than one that has not formerly been exposed to Bunnings' current art work and advertising signage, would see the sign as one, that is containing the business identification element, the logo and the position statement. … The image comes, as do other cognitive codes, with all its attributes, not just one or a few. The two parts of the sign will be read as one.

The Council argued the application was for two signs, as was clear from the physical layout proposed. Council relied on evidence from its senior town planner Ms Leta Webb to that effect.

Finding 23. It may be that this signage will be read as one message, as Dr Lamb submitted. The issue which falls to me to determine, however, is not whether the message of the elements of the signage will be considered by a viewer as a single coherent whole but whether or not the physical elements are, in fact and at law, one sign or two within the definition of "signage" in cl 4(1) of SEPP 64. It is entirely logical to conclude that the proposed signage is two physical signs. It necessarily follows that, in a planning context, the application is for two separate signs.

Issue 2 - Is the signage a business identification sign under SEPP 64? 24. SEPP 64 prevails over any LEP or DCP if these are inconsistent. It is therefore necessary to consider how SEPP 64 applies to this application for two signs.

Clause 4(1) of SEPP 64 includes definitions of different types of signs. In this case the relevant definition is that of a business identification sign. Clause 4(1) states: 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.

If a sign is not a business identification sign it may be an advertising sign to which Pt 3 of SEPP 64 applies.

It is common ground between the parties that, if the application is determined as being for two separate signs, the sign to the left of the entrance portico (which contains the wordmark Bunnings Hardware) is a business identification sign for the purposes of SEPP 64. Is the sign to the right of the entrance portico (which contains the hammer logo and the positioning statement) a business identification sign under SEPP 64?

Bunnings' counsel urges an interpretation of the definition of business identification sign set out above which treats the word "and" in par (a)(i) and(a)(ii) of the definition as implying the disjunctive rather than the conjunctive. If this submission is adopted, Bunnings contends that the hammer logo and the positioning statement should be viewed together as constituting a single logo or symbol. If correct, then both signs would be business identification signs. Bunnings argued that, if the definition were so construed, any one or more of the identified components of the definition comprise a "business identification sign". Bunnings submitted that if the components are conjunctive, then the bulk of business signs would be prohibited even though these identified the businesses at which they are located. That would not, it was argued, achieve the purpose of SEPP 64.

The Council's legal representative submitted that the interpretation pressed by Bunnings was artificial and contrary to a natural and normal reading of the word "and" in the definition, which should be read as conjunctive.

Finding 30. The usual reading of a list whose elements are joined by the word and , is that the requirements in the list would have to be satisfied. It is clear that, in the ordinary course of events, a list whose elements are joined by the word or , will be read so that each of its elements is in the alternative: Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 133 per Windeyer J.

I was taken to the discussion of the construction of conjunctive or disjunctive statutory provisions in DC Pearce and RS Geddes Statutory Interpretation in Australia, 4th ed, Butterworths and to AI MacAdam and TM Smith Statutes - Rules and Examples, 3rd ed, Butterworths, 1993 . Two exceptions emerge to the general propositions noted above. The first of these is when there is a clear mistake in the legislative drafting: see R v Oakes [1959] 2 QB 350. In Re The Licensing Ordinance (1968) 13 FLR 143 at 146 - 7 Blackburn J said if the natural meaning were adopted, the result would be one which was: so extraordinary … that in order to make sense of the provision the court was obliged to say that it must read the word "and" as if it had been "or". It is not submitted by Bunnings that this position applies to the provisions of this definition in SEPP 64 and nor would I accept such a proposition in any event.

Blackburn J in Re The Licensing Ordinance (at 147) identified the second exception as cases: in which there was a list of items, the items being joined by "and" and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word "and", which is used to join the items in the list, is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorise the class, as a whole, as a class of alternatives.

There are no preambular words which could lead to the conclusion that the list of enumerated requirements for a business identification sign should be categorised as a class of alternatives . I therefore do not consider that either of these exceptions to the general rule of construction applies in the present instance.

In addition, if Bunnings' contention were correct, in my view this would lead to a construction which would give results that make little sense. The difficulty with the proposed interpretation arises from the presence of " may ", in the wording of par (b) of the definition. Thus, on Bunnings' interpretation it would be possible to have a business identification sign that includes none of the elements in (a) but may include the various optional elements in (b).

The Council's contention, on the other hand, is that each of the words " and " should be read naturally as being conjunctive. Such a reading has the virtue of certainty and lack of ambiguity. The interpretation proposed by Bunnings' counsel is artificial and requires a straining of the language in the definition. I am satisfied that the Council's interpretation is the legally correct one.

I therefore determine that a business identification sign under the definition in cl 4(1) of SEPP 64 must contain the name of the person and the nature of the business carried on at those premises to which the sign is affixed. It also follows that, in addition, such a sign may include optional elements which are those dealt with in (b) of the definition of this term. As a consequence, it necessarily follows that the separate right hand sign containing the hammer logo and the positioning statement is not a business identification sign.

According to Bunnings' counsel, this interpretation of the definition of business identification sign in SEPP 64 may mean that a significant number of signs which are currently regarded as identifying businesses could not be approved as business identification signs. If so, they must be approved as advertising signs under SEPP 64 in future. The departmental explanatory information on SEPP 64 provided to the Court by the parties does not shed any light on this matter. Issue 3 - If not a business identification sign, is there any other basis the right hand sign can be approved under SEPP 64? 38. The consequence of my determination that the right hand sign is not a business identification sign is that it is an advertising sign to which Pt 3 of SEPP 64 applies. Part 3 includes clause 19 which provides: The consent authority must not grant consent to the display of an advertisement with an advertising display area greater than 45 square metres unless 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. 39. It is common ground that no development control plan, as required by cl 19 of SEPP 64, has been prepared for the area which includes the Bunnings site. It is also common ground that the sign containing the hammer logo and the positioning statement has an area greater than 45 m2. As a result, the right hand sign is prohibited under cl 19 of SEPP 64. Issue 4 - Does the wordmark (left hand) sign, as a business identification sign, satisfy SEPP 64? 40. It is agreed by the parties that the wordmark sign on the left is permissible as a business identification sign. Clause 8 of SEPP 64 requires a merits assessment as a prerequisite to approval. This provides that: 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. 1. Is the proposed signage consistent with the objectives of SEPP 64 in cl 3(1)(a)? 41. The aims and objectives of SEPP 64 set out in cl 3(1)(a) are as follows: (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,

In its statement of issues, the Council did not suggest that the proposed signage was contrary to the second and third of the aims set out above. However, the Council did question whether: (i) the proposed signage would create or contribute to visual clutter and (ii) was compatible with the "visual character of the area or the desired future character, particularly in relation to scale" suggesting cl 3(1)(a)(i) is not met. The Council referred to its planning instruments and policies in addressing this issue. The structure of these planning instruments shows the two issues are closely related.

There is no descriptive statement in the LEP or the DCP of the desired future character of the Parramatta Road locality. Nor does SEPP 64 cl 3(1)(a)(i) refer to "desired future character" but rather "the desired amenity and visual character of an area" . The desired future character of the area is not considered under SEPP 64 cl 3(1)(a), although I note that it is relevant to the criteria in Sch 1 of SEPP 64 discussed below. I also note that while the DCP does refer to intended future character of the locality (see par 46), it provides no details of what is relevantly intended for this locality apart from limiting the proliferation of signs (see par 45).

The LEP 44. The zoning controls for the 4(c) Industrial Enterprise Zone in the LEP at cl 20 deal specifically with this zone. Clause 22 deals with general restrictions on development in industrial zones. Although cl 20 requires, amongst the specific objectives for this zone, the recognition of "the special character of Parramatta Road frontages and surrounding areas" (cl 20(1)(a)), there are no further details in the LEP concerning the desired amenity and visual character of the locality.

The DCP 45. The DCP is in a number of Parts. Part A deals with the general requirements of the DCP. Part E specifically deals with industrial areas. The DCP divides the municipality into 17 different localities including the Parramatta Road locality within which the site is located. Section 11 of Part A sets out the planning intentions for each of these identified localities. For the Parramatta Road Locality, the DCP at 11 of Part A states: The Parramatta Road locality runs from the goods railway crossing in the east near Birnie Street to Rawson Street in the west.

The eastern end of Parramatta Road is characterised by numerous car yards, with some large sites being redeveloped for various purposes such as a large Hardware outlet and a cinema complex. From St Hilliers Road west, numerous bulky goods retail outlets have established along both sides of Parramatta Road. A new homeware outlet has been located between Duck and Junction Streets. Under the heading Intent the DCP states for the Parramatta Road Locality at 12 of Part A, inter alia: …Limiting the proliferation of signage … are also primary concerns for this precinct.

In Part E of the DCP, under 2.0 "Streetscape and Urban Character" , the relevant objective is: (a) To ensure that all new development is compatible with the existing and intended future character of the locality in which it is located.

The relevant performance criterion which follows reads: Streetscape

The appearance of the development and activity generated by that development should be consistent with the existing and intended character of the locality within which it is to be located.

A number of development standards attach to this performance criterion. The first of these, D2.1, reads: The development should be consistent with the planning intentions and locality statements outlined at Part A, Section 11 of this Plan

The Council argued the proposed sign would cause a proliferation of signage which the DCP sought to limit, and was not in conformity with the visual character of the area. The Council considered the size of the sign should be reduced by 50% to reduce visual clutter. The Council relied on the evidence of Mr Bill Royal, landscape architect, who notes that SEPP 64 does not limit the number of business identification signs on premises. His evidence was that the left hand and right hand signs would contribute to visual clutter in a locality which, he acknowledged, already has a visual clutter problem. He also notes that the left hand sign is not highly visible from Parramatta Road but he considered it too large within the car park context. Consequently he recommends the left hand sign be approved with a substantial reduction in size.

Dr Lamb's evidence, for the Applicant, was that the sizes of both the proposed signs in the context of the large building it is proposed to locate them on, and in the general locality, is acceptable.

Finding Limiting the proliferation of signage 51. Planning for the Parramatta Road locality under the DCP is set out above at par 45. As the planning intention is "Limiting the proliferation of signage", the question under cl 3(1)(a) of SEPP 64 is whether approval of this sign would constitute an unacceptable proliferation of signage for the Parramatta Road locality, generally, or in its specific context in that locality.

The Council has already approved signage for the site on the pylon sign adjacent to the Parramatta Road boundary, which is prominent, and on the Parramatta Road frontage of the building.

The proposed sign is consistent with the signage already approved for the site except that it is noticeably larger. Its scale in relation to the painted facade upon which it is proposed to be located is in a similar proportion compared with the similar signage on the Parramatta Road façade of the warehouse, albeit larger overall. Although large, the sign is not visually intrusive from any public place. Indeed, it is not disputed that this proposed sign would have limited (if any) visibility for passing vehicle traffic on Parramatta Road. Pedestrian traffic is likely to be very limited in volume and the sign would also have limited visibility from the street for pedestrians. It would be visible to motorists approaching the site along Short Street - but only from a point very close to the vehicle entrance of the site. It is certainly highly visible in the warehouse carpark, but only people wanting to go to the warehouse will be there in any event. It is not an unacceptable proliferation in the carpark context.

Under the circumstances, I do not consider that the proposed sign would constitute an unacceptable proliferation either generally or in its specific context in the locality.

Visual character/streetscape 55. The relevant parts of the LEP and DCP in relation to the existing desired streetscape are set out at par 44 - 47. Having had the benefit of a view, I agree with Dr Lamb's evidence to the extent that it deals with the only permissible sign, the business identification sign. That sign is compatible with the visual character/streetscape of the area. While the sign is certainly dominant in the carpark due to its large size, its impact is acceptable in this context. I consider the business identification sign will be consistent with the existing and intended character and streetscape of the locality applying the relevant performance criteria under the DCP, Pt E.

I therefore consider that the requirements of cl 3(1)(a) of SEPP 64 have been satisfied by the business identification sign. It follows that cl 8(a) of SEPP 64 is satisfied by the business identification sign. I will now turn to the requirements of cl 8(b), namely whether the business identification sign satisfies the assessment criteria in Sch 1 of SEPP 64. 2. Does the proposed signage satisfy the assessment criteria in Schedule 1 of SEPP 64? 57. Schedule 1 of SEPP 64 contains a number of criteria against which the proposed sign is to be tested. Set out below are the relevant assessment criteria and the consideration of the proposed sign in relation to them.

• Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? 58. The analysis of the LEP and DCP set out earlier dealt with the issue of the existing and intended visual character of the locality. Based on the Applicant's evidence and with the benefit of a view, I consider the proposed sign is compatible with the existing character of the area. As noted above, compatibility with the desired future character was raised in the Council's Statement of Issues, but there is no indication in the LEP or DCP as to what the desired future character is apart from limiting the proliferation of signs. I have dealt with the proliferation of signs at par 51 - 54 and held the business identification sign was not unacceptable on this basis. • Is the proposal consistent with a particular theme for outdoor advertising in the area or locality? 59. There is no theme for outdoor advertising in the area or the locality either as to size or content, so this is inapplicable. 2 Special areas 60. Not relevant 3 Views and vistas 61. Not relevant 4 Streetscape, setting or landscape • Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape? 62. This is considered in the discussion above concerning streetscape issues. Although there is no other single sign of similar scale in the vicinity, there was a prominent sign, more dominant on its facade, facing directly onto Parramatta Road on the south eastern corner of Parramatta Road and Rawson Road. This intersection is the closest intersection on Parramatta Road to the site. In the context of this location the proposal is appropriate. • Does the proposal contribute to the visual interest of the streetscape, setting or landscape? 63. Given the limited visibility of the proposed sign from public places, this criterion is only marginally relevant. As noted by Dr Lamb in his evidence, the sign will reinforce the identification of the building and, as suggested by Dr Lamb, there will be a limited contribution to the visual interest of the site. • Does the proposal reduce clutter by rationalising and simplifying existing advertising? 64. There is no existing advertising signage which is relevant. • Does the proposal screen unsightliness? 65. Not relevant. • Does the proposal protrude above buildings, structures or tree canopies in the area or locality? 66. No. 5 Site and building • Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located? 67. The proposed sign is consistent with the already approved signage for the site. Photographs tendered on behalf of the Applicant show that the proposed signage is part of the implementation of a company policy for consistent signage across all the company's outlets. The present proposal is consistent with the scale, proportion and other characteristics when applied to this building. It is compatible in the context of this building. • Does the proposal respect important features of the site or building, or both? 68. Not relevant • Does the proposal show innovation and imagination in its relationship to the site or building, or both? 69. I do not consider this relevant in this context. 6 Associated devices and logos with advertisements and advertising structures 70. Not relevant 7 Illumination 71. Not relevant 8 Safety 72. Not relevant 73. From all the foregoing, I am satisfied that there is no basis under Sch 1 of SEPP 64 to justify refusal of the business identification sign on any merit basis. The assessment criteria in Sch 1 have been satisfied and accordingly cl 8(b) of SEPP 64 has also been satisfied. The requirements of cl 8 of SEPP 64 are satisfied by the proposed business identification sign. Residual operation of local planning instruments 74. SEPP 64 applies across the whole of New South Wales. Clause 7 provides for the interrelationship between SEPP 64 and other environmental planning instruments in the following terms: In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency. 75. In the present instance, the only possible area where the provisions of the Council's planning instruments are not already subsumed by the provisions of SEPP 64 are the provisions of the DCP which proposed the limitation of the proliferation of advertising signs. This issue has been dealt with earlier in this decision. There are no other matters arising from either the LEP or the DCP which require consideration. Conclusion 76. In summary, therefore, I have concluded that:

· The application seeks consent for the erection of two permanent signs rather than one; · The left hand sign (containing the wordmark) is permissible, subject to a merit assessment;

· The right hand sign (containing the hammer logo and positioning statement) is not a business identification sign within the meaning of SEPP 64. As a consequence of clause 19 of SEPP 64, it is prohibited; and · Having conducted a merit assessment, the left hand (wordmark) sign should be permitted.

As a consequence of these findings, the Applicant succeeds but only to the extent of approval of the left hand (wordmark) sign. This is reflected in the conditions which form part of the Court's orders and make it clear that the consent granted as a consequence of this decision applies solely to the left hand sign. Orders 78. The Court orders that:
1. The appeal is upheld.
2. Development Application 24/02 for the erection of signs at 311 Parramatta Road Auburn in accordance with Australian Corporate Signage plan dated 12th November 2001 is granted subject to the conditions in Annexure A.
3. The exhibits, except exhibit A, may be returned.
4. No order as to costs.

The development is to be carried out in accordance with and confined to the Bunnings Wordmark sign located to the south of the portico entrance area as shown on the east elevation of the un-numbered plan dated 12th November 2001 headed "Bunnings Warehouse Auburn" drawn by ACS Australian Corporate Signage which sign contains the words "BUNNINGS warehouse".

(Note - modifications to the approved plan will require the lodgement and consideration by Council of a modification application pursuant to Section 96 of the Environmental Planning and Assessment Act 1979).

Reason - to confirm and clarify the terms of Council's approval.

Time period of consent This consent shall lapse five (5) years from the date of determination unless the approved building, engineering or construction work has been physically commenced in accordance with this consent.

Development consent for the use of land does not lapse if the approved use of any land, building or work is actually commenced prior to the date on which the consent would otherwise lapse.

Reason - to satisfy the requirements of Section 95 of the Environmental Planning and Assessment Act 1979.

No alteration without prior Council approval The approved sign shall not be altered in character, size or colour without the prior consent of Council.

Reason - to ensure the appearance of the sign is not obtrusive or offensive and does not degrade the visual quality of the surrounding area.

Existing unauthorised signs on the building The existing unauthorised sign attached to the eastern wall of the building (which sign is situated to the right hand of the entry portico and which sign depicts a hammer head within a part circle accompanied by the words "LOWEST PRICES ARE JUST THE BEGINNING …") is to be removed prior to the painting of the sign approved in Condition Number 1 onto the façade of the building.

5 No illumination of signs The proposed sign shall not be illuminated or floodlit.

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.

CITATION : Bunnings Building Supplies Pty Ltd v Auburn Council [2003] NSWLEC 212 APPLICANT Bunnings Building Supplies Pty Ltd PARTIES : RESPONDENT Auburn Council FILE NUMBER(S) : 10999 of 2002 CORAM: Pain J Construction and Interpretation :- whether the proposed signage is a business identification sign under SEPP 64 - proper construction of the definition of business identification sign in cl 4(1) of SEPP 64 - whether "and" in par (a)(i) and (a)(ii) of the definition should be read in the conjunctive or disjunctive KEY ISSUES: Development Application :- appeal against deferred commencement condition in relation to signage - whether the proposed signage is one sign or two - whether signage which is not a business identification sign under SEPP 64 can be approved on any other basis under SEPP 64 - whether that part of the signage which constitutes a business identification sign should be approved on the merits Auburn Development Control Plans 2000 LEGISLATION CITED: Auburn Local Environmental Plan 2000 cl 20, cl 22 Environmental Planning and Assessment Act 1979 s 97 State Environmental Planning Policy No 64 - Advertising and Signage cl 3, cl 4, cl 6, cl 7, cl 8, cl 19, Sch 1 Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106; AI MacAdam and TM Smith Statutes - Rules and Examples, 3rd ed, Butterworths; CASES CITED: DC Pearce and RS Geddes Statutory Interpretation in Australia, 4th ed, Butterworths; R v Oakes [1959] 2 QB 350; Re The Licensing Ordinance (1968) 13 FLR 143 DATES OF HEARING: 18-19/06/2003 DATE OF JUDGMENT: 09/18/2003

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Judgment (55 paragraphs)

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