Centro Properties Pty Ltd v Albury City Council

Environmental Planning and Assessment Act 1979 Albury Local Environmental Plan 2000 LEGISLATION CITED: Albury Development Control Plan 2000 State Environmental Planning Policy No. 64

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 16/09/2005, 03/11/2005 - Further evidence 10/11/2005

APPLICANT Ms G Furness, barrister Instructed by: SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr M Rogers, solicitor SOLICITORS Kell Moore Solicitors Pty Ltd

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10605 of 2005 Centro Properties Pty Ltd v Albury City Council

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the consent granted by Albury City Council 7 January 2005 wherein the development is described as an "8 m high internally illuminated pylon sign". The applicant is appealing the height of 8 m and seeks a 12 m sign as depicted in the plan accompanying the development application.

2 The location of the proposed sign is within the Lavington district centre, known as 'Centro Lavington' shopping centre, 351 Griffith Road Lavington. The 12 m high pylon sign is proposed to be located near the intersection of Breen Street, Kotthoff Street, Kaylock Road and Griffith Road, opposite a five ways round-about where there is currently a small sign. Fig. 1 shows the current sign and the proposed.

3 The statement of Basic facts describes the proposed sign as "12 m in height and 3.6 m in width with a surface area of 43.2 sq m".

4 The site is bounded on the north and north-east by a living area zone that is developed predominantly for single storey detached dwelling houses. The eastern, southern and western boundaries of the site are within the 'district centre' zone that is predominantly occupied by commercial premises. Refer to locality and zoning plan at Fig. 2. 5 The respondent's Statement of Issues identifies four issues as follows: 1. Whether the proposal complies with the matters for consideration as outlined at sections 79C(1)(b) and 79C(1)(e) of the Environmental Planning and Assessment Act 1979, namely: * the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality; and, * the public interest; and, in particular whether the proposal: * would adversely impact upon the visual amenity of both Griffith Road and Kotthoff Street streetscapes, particularly in terms of form, bulk and scale; and, * is appropriate for a District Centre Zone and a Living Area Zone residential/commercial land use interface area

2. Whether the proposal complies with the objectives set out in clause 42 of the Albury Local Environmental Plan 2000 relating to Outdoor Advertisements. In particular, whether the proposal: * provides efficient transmission of commercial information with a sign at 8 m high versus a sign 12 m high; and, * causes visual clutter caused by unnecessary or intrusive signage. 3. Whether the proposal complies with Chapter J of the Albury Development Control Plan 2000 relating to Outdoor Advertising Controls. In particular, whether the proposal complies with Chapter J in relation to: * height; * size; * form; * bulk; and scale. 4. Whether the proposal complies with State Environmental Planning Policy No. 64 - Advertising Signage . Specifically, whether the height, size, form, bulk and scale of the proposed sign would adversely impact on the amenity and visual character of Griffith Road and Kotthoff Street and therefore by contrary to clauses 3, 8, 13 and 17 of SEPP 64. 6 The planning regime for the Court to assess the development application includes the Albury Local Environmental Plan 2000 (Albury LEP), Albury Development Control Plan 2000 (Albury DCP) and State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64).

7 The Albury LEP zones the subject site 'district centre' and cl 20 states: "the principle objective of the district centre zone is to promote and reinforce the sub-regional role of the Lavington District Centre, through development and investment with the Lavington Centre Strategy and the key centre projects".

8 The particular objectives of the District Centre Zone are: (a) to promote vitality and a diversity of activity within the Lavington District Centre (b) to encourage highway related business, trades and services to reinforce the function of the Lavington District Centre; (c) to ensure that the densities for commercial development reflect the needs of the local community and the capacity of the existing road and transport network; (d) to encourage a wide range of retail, commercial and professional services within Lavington District Centre; (e) to provide for safe and convenient pedestrian movement within the Lavington District Centre; (f) to enable Lavington to develop as a sub-regional centre in an efficient and equitable manner; (g) to protect residential areas from inappropriate development and any adverse impacts associated with the centre; (h) to encourage high quality urban design along the Hume Highway; (i) to encourage a high standard of appearance for signs. " 9 The LEP also provides zones described as: urban fringe; living area; regional centre; employment area; and national highway. Clause 8 requires that in granting consent within a zone the consent authority is to be of the view that the development is consistent with the objectives of the zone. Subclause 3 provides that consent may be granted where the development is inconsistent with one or more objective if in the circumstances of the case: (a) there is a perceived inconsistency between objectives or

(b) the nature and setting of the development makes it unreasonable to comply with one or more of the objectives and non-compliance with the objective would not result in any significant adverse, social, economic or environmental affect. 10 Clause 9 requires the consent authority to have regard to any provisions of the Development Control Plan that specify development standards to be considered when assessing a particular development application.

11 Clause 22 states that: The consent authority must not grant consent to development within the district centre zone unless: (a) The proposed development is consistent with any strategy adopted by the council for that zone (or for both the regional centre zone and the district centre zone) or any development control plan that applies to that area or (b) In the opinion of the consent authority the development is justified on other reasonable ground. 12 Part 7 of the LEP contains provisions for outdoor advertisements and cl 42 states: The objectives of the controls on outdoor advertising are: (a) to enable efficient transmission of directional, commercial, tourist or service information or the like to persons on the move; (b) to provide an equitable distribution of signage in commercial and industrial areas and (c) to minimise the visual clutter caused by unnecessary or intrusive signage, particularly within business, residential, open space, heritage and other environmentally sensitive areas that include major thoroughfares. 13 Advertisements are defined in the LEP as follows:- Advertising structure means a structure used or to be used principally for the display of an advertisement, and includes the pole or poles on which any pole or pylon sign is erected. Illuminated sign means an advertisement illuminated internally or externally in order in order to make the message readable. Pole or pylon sign means an advertisement erected on a single pole or on poles independent on any building or structure of a total height of no less than 1.8 m and no more than 8 m above the existing ground level. 14 The Albury Development Control Plan 2000 at Chapter J contains the same definitions as in the LEP. The introduction to this chapter states: There is a growing awareness in the community of the impact of outdoor advertising upon the city streetscape. Falling place or excessive signage clutter often reduces the effectiveness of the message intended to be conveyed. it is generally better to have one, clear, suitable size sign on a property rather than a multitude of small signs. 15 One of the key concepts for outdoor advertisements in the DCP states: The council will take the opportunity when issuing development consent to the re-development or change of use of a property to require that advertisements which do not comply with the LEP/DCP, or are considered intrusive or unsightly, are to be removed as part of that development. In this way the council will promote a consistent and equitable approach to outdoor advertising within the city. Advertisements generally must not contribute to the cluttering of the streetscape … 16 Part 5 of the this Chapter provides guidelines for 'multiple occupants and pole signs', and this part states: Where a building is setback at least 4 m from the street property boundary and the road frontage of the property is at least 20 m but the building has more than one occupancy, a pole sign may be erected within the setback with the consent of the council. In this case the total area of the message face of the sign should not be more than 6 sq m with a maximum message phase per occupancy of 2 sq m. The sign is to be a maximum of 2.5 m in width. The pole sign is to be no higher than 8 m above existing ground level (for properties fronting a road classified by the NSWRTA) and no higher than 6 m above existing ground level for properties fronting all other roads. In general only one free standing sign per street frontage may be erected. Sites with extended frontages will be treated upon their merits, as will proposals which incorporate a mix of low level and higher level signs. 17 Part 7 of the DCP chapter states that generally the following signs will not be permitted by the council due to their impact upon the skyline and city streetscape: - roof signs or sky signs - pole, pylon signs above 8 m - signs that are likely to affect the amenity of an area by way of a visual intrusion, clutter, illumination, safety, distraction motorists, … 18 The aims of State Environmental Planning Policy No. 64 gazetted are: To ensure that signage (including advertising): i) is compatible with the desired amenity and visual character of an area; ii) provides effective communication in suitable locations and iii) is of high quality design and finish. 19 Clause 4 sets out definitions including advertisements means signage to which Pt 3 applies and includes any advertising structure for the advertisement. Advertising structure means a structure or vessel that is principally designed for or that is used for the display of an advertisement. 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 …

20 Clause 7 states that: "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.

21 Clause 13 of the SEPP states that "the consent authority must not grant consent to an application to display an advertisement …unless the advertisement or the advertising structure …: (a) is consistent with the objectives of this Policy as set out in clause 3(1) (a), and (b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (c) satisfies any other relevant requirements of this Policy 22 The provisions of Schedule 1 are as follows:

1. Character of the area o Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? o Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?
2. Special areas o Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?
3. Views and vistas o Does the proposal obscure or compromise important views? o Does the proposal dominate the skyline and reduce the quality of vistas? o Does the proposal respect the viewing rights of other advertisers? 4 Streetscape, setting or landscape o Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape? o Does the proposal contribute to the visual interest of the streetscape, setting or landscape? o Does the proposal reduce clutter by rationalising and simplifying existing advertising? o Does the proposal screen unsightliness? o Does the proposal protrude above buildings, structures or tree canopies in the area or locality?
4. Site and building o 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? o Does the proposal respect important features of the site or building, or both? o Does the proposal show innovation and imagination in its relationship to the site or building, or both?
5. Associated devices and logos with advertisements and advertising structures o Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?
6. Illumination o Would illumination result in unacceptable glare? o Would illumination affect safety for pedestrians, vehicles or aircraft? o Would illumination detract from the amenity of any residence or other form of accommodation? o Can the intensity of the illumination be adjusted, if necessary? o Is the illumination subject to a curfew?
7. Safety o Would the proposal reduce the safety for any public road? o Would the proposal reduce the safety for pedestrians or bicyclists? o Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas? 23 Division 3 cl 18 is for advertisements with display areas greater than 20 sq m or higher than 8 m above ground and the display of an advertisement to which this clause applies is advertised development for the purposes of the Act. The council processed the application accordingly and also referred it to the necessary authorities. As required by the subclause the applicant provided an impact statement that addresses the assessment criteria in Sch 1.

24 On behalf of the applicant, evidence was given to the Court by Mr Roger Corey, a corporate manager for Centro, and he advised the Court that the applicant has invested some $35m plus on an extension and refurbishment of the centre and major tenants had also made considerable investments in fitting out their premises.

25 For the respondent, expert evidence was given to the Court by Mr James Laycock, a consultant town planner and a statement of evidence was also provided.

26 A site inspection was carried out in the presence of the parties on the morning of the hearing. At the conclusion of the regional hearing the Court required additional information in order to be able to assess the development application in terms of SEPP 64 and the planning framework. While the required documentation including plans of approved signage and assessment reports was not readily available from council's files at that time, material was subsequently provided to the Court 10 November 2005.

The scale and form of the proposal above 8 m in height would adversely impact upon the visual amenity of both the Griffith and Kotthoff Street streetscapes. It is considered that an increase in height above 8 m would be bulky in relation to nearby development which is generally single storey or approximately 3-4 m in height. The proposal is therefore considered to be out of context to bordering residential development … Despite the area to the east of the site being zoned and used for commercial purposes. The proposal is inappropriate for residential/commercial land use interface area as it is considered that a sign height above 8 m allows for the sign to create an inappropriate relationship to the adjoining residential area to the north and north-east. Principally it is considered that whilst a sign of 8 m may be appropriate for a commercial/residential land use interface, a sign of 12 m in height would not as it would be over bearing as a feature of built form in a land use transition and streetscape amenity sense. 28 It was submitted on behalf of the applicant that three pylon signs would not be excessive for a district centre of the size and importance of Lavington where there is a total investment in the order of $50 million. It was further submitted that a 12 m sign would be compatible with the area and that people in the living area zones are already affected by significant traffic and the proposed sign of 12 m would be compatible and provide for effective communication. It was stated that SEPP 64 clearly contemplates such signage and that it is difficult in the circumstances for the council to say that 8 m is satisfactory and 12 m is not and that this one sign would not tip the balance or be excessive.

29 The respondent on the other hand submitted that the council does not have an objection to an 8 m sign in accordance with its guidelines and that it is not only the height of the proposed sign but the bulk and scale with a display area of some 43.2 sq m that is unacceptable on the interface of the district centre zone with the living area zone. The respondent considers that the proposal would have an unacceptable visual impact in the context of the local residential area and that it would be out of character.

30 The Court was referred to the judgment of Zhang v Canterbury CC [2001] NSWCA 167 in applying the DCP and that the applicant has failed to produce evidence of the need of a 12 m sign in the proposed location which is a substantial departure from the DCP 8 m guideline.

31 The CBD of Albury and Lavington are the only two district centres within the Local Government area. Lavington serves the surrounding rural areas and other towns that do not have centres of this scale offering the same range of goods.

32 The expansion of the centre is consistent with the 'retail sector development strategy for Albury City' and it states:

"The Lavington CBD lacks specialty chain retail tenants, though provides the leading location for convenience and every day shopping item retailing to the faster growing northern areas of the LGA." 33 The analysis identifies a number of weaknesses including, "lack of precinct definition, linkage and signage within the Albury and Lavington CBD. A strength identified is that Lavington shopping centres strong growth trend and performance, reflecting shopping convenience. The strategy also identifies a number of action initiatives including:

To introduce uniform and consistent signage to all existing and new shopping districts in Albury City and strategy transport routes, including the new national highway route. 34 The applicant identified existing signage in the area approved by the council on Wagga Road and Urana Road. For example the KFC sign with a modification approved in 1990 for a 10 m sign, the Caltex/Hungry Jacks sign approved in 1987 at 12 m (erected at 11.8 m), a Coles sign approved in 1994 and erected at 10 m and the McDonalds eastern sign approved in 1997 and erected to 12.2 m, the Rivers signage and structure approved in 2002 at 12.4 m and erected to 12.2 m although the highest part of the sign message is 9 m with the additional height being a pitched tin roof feature.

35 The Development Control Plan was introduced in July 2000 and the respondent submitted that no signs have been approved greater than 8 m since its introduction although it is noted that the Rivers sign and structure exceeds this.

36 The proposed sign in the development application is a solid structure with the bottom section a solid silver panel with no advertising and the advertising of the major tenants in the centre commences at approximately 3.5 m measured from the ground. The signage that exceeds 8 m, including those on the subject site generally do not have solid panels from the ground up but are erected with poles/pylons and at approximately eye level and one can see under the signs with the solid panels above. The Caltex/Safeway sign on the corner of Kaylock Road and Griffith Road has a solid sign erected to a height 5.9 m and this is seen with the Rivers sign in the background at Figure 4.

37 Centro Lavington received approval in September 2002 and has recently been expanded to increase the retail area and provide a 2 level carpark and upgraded with refurbishments and new tenants opening stores. The expansion of the centre has also been the subject of various development applications and s 96 modifications including approval for the current 16 m sign to be redesigned and stand 16 m in height in the location shown on Figure 3.

38 There is an existing Big W sign constructed to 15.3 m in height that was approved in 1979 and this is located on the southern corner of the subject site. Also midway along the south eastern boundary of the site there is a Big W safeway sign constructed to a height of 16 m although the modification in 1993 approved a height of 16.3 m that increased the 1985 consent of 15 m. 39 A separate development application was submitted to the council and approved in August 2005 that relates to signage for Aldi. While this was an application in relation to one tenant in the shopping complex it identified the location of signage for the triangular block that contains the expanded centre. The respondent has provided further evidence to say that attached to the Aldi development consent was a photocopy of a site plan of signage that shows the type of sign to replace the 16 m sign at the southern end of the site noting that the sign will not increase in height and as such was approved by council to modernise the corporate feel of the signage. The Big W sign measuring 15.3 m will remain on Griffith Road further north from the sign of 16 m that has approval to be modified to reflect the new corporate identify and major tenants.

40 Initially when the matter was heard the Court identified the need for an overall plan of the entire site to show placement and scale of signs. It now appears that an overall plan showing the signage of the site has been prepared and there has been various approvals for signage around the site but the total package of signage for Lavington Centro has not been submitted or assessed and approval has only been sought for parts of the overall site plan. The two new pylon entry canopy signs endorsed 25 September 2002 have now been removed. In the consent 28 January 2005.and this is consistent with Mr Cory's evidence at the hearing that Centro Properties had no intention to erect entry canopy signage.

41 The role of the Court in these proceedings is to assess whether a 12 m sign should be approved in the location indicated by the applicant. I am not satisfied that a 12 m sign is compatible in the subject location having regard to the display area over 42 sq m on a solid sign 12 m in height. In my assessment such a sign would be an unreasonable impact and out of character with the adjoining living area zone. It is an established planning principle that an assessment of a development application must have regard to the zone interface and to place a sign of this height and bulk at the extremity of the district centre zone would create an unreasonable visual impact for the residential area. One of the district centre zone objectives is to protect residential areas from inappropriate development and the circumstances of this case do not justify an inconsistency. The fact that there are no objections to the proposal does not make an inappropriate development acceptable. 42 The 12 m sign in my assessment does not satisfy the provisions of SEPP 64 in particular Sch 1 as it is out of character with the area that must have regard to the adjoining living area zone. Furthermore the scale, proportion and form of the 12 m sign is inappropriate in the streetscape and the proposal does not rationalise or simplify existing advertising. The visual impact of this single sign means that this application should be refused. And it is not necessary to consider the cumulative impacts of signage on the site to conclude that a 12 m sign should not be approved. However clearly the proliferation of signage and structures and the impact on the public domain or streetscape would also be unsatisfactory.

43 On the evidence to the Court the proposed development does not satisfy an assessment under Sch 1 of SEPP 64 and the appeal to allow a 12 m sign must fail.

44 Furthermore the provisions of council's DCP must be given serious genuine and proper consideration where they do not conflict with the SEPP 64 provisions. In this regard even though a 12 m sign is not prohibited I have not been persuaded that a 12 m sign on its merits would be appropriate in the context of the adjoining residential area. Furthermore the accumulation of signage for the centre as a whole should be rationalised. The existing approved signs and the current signs of 16 m and the 12 m sign along Griffith Road and another sign of 12 m does not meet the objectives of the SEPP or council's controls.

45 By way of comment, while it is a matter for the applicant, it would appear that the large investment in the enlargement and refurbishment of the centre warrants an overall plan or strategy for advertising and signage structures to provide clear identification for the centre. Rather it appears that a piecemeal incremental approach has occurred to the provision of signage for the centre and this in the long term will only lead to a proliferation of signage and clutter and a lack of clear identity for the centre as a whole. It is also unfortunate that council's system of records of development consents modifications and approved plans make it more difficult for a decision maker to readily consider the cumulative impacts of developments that is necessary for an assessment under SEPP 64 and council's LEP and DCP. With a common aim to reduce the proliferation of signage. 46 For the reasons set out above I am not persuaded that a sign of 12 m should be approved and therefore in these circumstances the appeal cannot be upheld. However, on the basis of the evidence an 8 m sign to the same effect as the council's approval should be allowed in the circumstances.

47 Therefore the appropriate Order for the Court under s 83 (2)(b) of the Act is to dismiss the appeal but not refuse consent. The consequence of this is that the consent already granted by the council and that ceased to be effective on the lodgement of the appeal under s 97 becomes effective and operates from the date of determination of this appeal pursuant to s 83. In circumstances where this Court refuses development consent as well as dismissing an appeal then the council's consent would become void and taken never to have been granted pursuant to s 83(3)(a) of the Act.

48 Accordingly the Orders of the Court in this matter are:

1. The appeal for a 12 m sign on the corner of Breen Street and Griffith Road is dismissed. 2. The exhibits are returned.

      J S Murrell
      Commissioner of the Court
      Rjs/ljr

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