Captive Vision Pty Limited v North Sydney Council

Parties: Captive Vision Pty Limited (Applicant)
North Sydney Council (Respondent)

Representation: Counsel:
J McKelvey (Applicant)
K Law (Solicitor) (Respondent)
Solicitors:
Norton Rose Fulbright (Applicant)
Matthews Folbigg Lawyers (Respondent)

File Number(s): 2025/451025

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Modification Application No. 193/2018/5 to reduce the dwell time of an existing digital advertising wall sign (the proposal), at 287 Military Road, Cremorne (the site), by North Sydney Council (the Council).

2. The application was made pursuant to s 4.56 of the EPA Act as the original development consent (Development Consent No. 193/2018) and was granted by the Court on 10 September 2019 for the removal of an old sign and the erection of a new digital advertising wall sign (Captive Vision Pty Limited v North Sydney Council [2019] NSWLEC 1425). The development consent was modified by the Court on 11 January 2023 to change the dwell time of the existing digital advertising wall sign from 60 seconds to 25 seconds (Captive Vision Pty Ltd v North Sydney Council [2023] NSWLEC 1011).

3. The proposal is to amend condition 13 of the conditions of consent to reduce the dwell time of the display period from 25 seconds to 10 seconds, so that the sign is fixed or static for the whole of a minimum of 10 seconds. The existing sign is 8.1 m x 4 m and is fixed to an eight-storey mixed-use complex containing the Cremorne Hotel on the ground and first floors.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 20 March 2026. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

5. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent. There are preconditions to the exercise of power to modify a development consent.

Pre-conditions to the grant of consent

6. I am satisfied that the proposal is substantially the same development as the development for which consent was originally granted, pursuant to s 4.56(1)(a) of the EPA Act. The proposal is for a reduction in the permitted minimum dwell time for messages displayed on the existing digital sign, and no changes are proposed to the approved built form, illumination or operating hours of the existing sign.

7. I accept the Council’s submission that the application was notified in accordance with the requirements of s 4.56(1)(b)-(d) of the EPA Act and one submission was received which raised a concern regarding visual clutter and an increased distraction for traffic.

8. I accept the Council’s submission that the concurrence of Transport for NSW (TfNSW) is not required for this application. Section 3.16 of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment) applies to a development application for a new sign to which s 3.15 of SEPP Industry and Employment applies and which is greater than 20 m2 and within 250 m, and visible from, a classified road; but not to an application to modify a development consent, because the consent authority, or the Court exercising the functions of the consent authority, is not granting consent to an application when modifying an existing consent.

Conclusion

9. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 20 March 2026 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

10. The orders of the Court are:

11. The appeal is upheld.

12. Development Consent No. 193/2018 is modified to change the dwell time of the existing digital advertising wall sign, at 287 Military Road, Cremorne, in the form of the conditions of consent at Annexure A.

S O’Neill

Commissioner of the Court

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Annexure A (303 KB, pdf)