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[2026] NSWLEC 1110
General information, not legal advice.
Land and Environment Court (NSW)
2026-02-06
Dixon SC
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Medium Neutral Citation: Healy Capital Pty Ltd ATF Healy Family Super Fund v The Council of the City of Sydney [2026] NSWLEC 1110
Hearing dates: 25 November 2025
Date of orders: 06 February 2026
Decision date: 06 February 2026
Jurisdiction: Class 1
Before: Dixon SC
Decision: The Court orders:
(1) The appeal is dismissed.
(2) Exhibits are returned except for Ex A.
Catchwords: APPEAL – Development application for illuminated electronic variable content sign and associated roof solar panels – impact on the heritage item – design excellence provisions – public benefit condition – existing character of the area – desired amenity and visual character
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 3.42, 4.15, 8.7 Land and Environment Court Act 1979 (NSW), s 39 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, 3.8, 3.11, 3.15, 3.16, 3.20 Sydney Local Environmental Plan 2012, Sch 5, cll 4.3, 4.6, 5.10, 6.21C
Cases Cited: Abrams v Council of the City of Sydney (No 2) [2018] NSWLEC 85
Currey v Sutherland Shire Council (1998) 100 LGERA 365
MLC Properties v Camden Council (1997) 96 LGERA 52
Telstra Corporation Ltd V Hornsby Shire Council (2006) 146 LGERA 10: [2006] NSWLEC 133
Texts Cited: City of Sydney, Access Strategy and Action Plan – Continuing the Vision 2023
Department of Planning and Environment, Transport Corridor Outdoor Advertising and Signage Guidelines 2017
Sydney Development Control Plan 2012
Category: Principal judgment
Parties: Healy Capital Pty Ltd ATF Healy Family Super Fund (Applicant)
The Council of the City of Sydney (Respondent)
Representation: Counsel:
P Tomasetti SC (Applicant)
P Canning (Solicitor) (Respondent)
Solicitors:
Dentons (Applicant)
City of Sydney (Respondent)
File Number(s): 2025/229811
Publication restriction: Nil
On 13 November 1996, South Sydney Council approved a 4m width x 9m height wall sign on the eastern face of the building. The sign was erected in a different position to that for which approval was obtained. A further DA (U99-664) was approved on the 24 February 2000 for:
an internally illuminated skeletal advertising sign 4.5m x 19m at the roof level of the building, and
relocation of the existing static wall sign to be consistent with the original 1996 consent (existing consent).
Subsequently, both signs were lawfully erected. The frame for the skeletal signage and the wall sign in situ are illustrated in Figure 6 below.
The evidence is that the skeletal advertising sign has been permanently removed. The wall sign was removed in February 2022 to enable the erection of the scaffolding to support other works to the property.
The updated Statement of Environmental Effects (SEE pp 10-11, 4.1-4.3) describes the proposed works, namely:
The installation of a digital wall sign on the east elevation of 185-211 Broadway, replacing the previously constructed sign in the general location of the sign approved under U99-00664; and
The installation of solar panels and battery on the roof to power the digital wall sign.
The proposed sign will have a 4m width and 8.4m height which equates to an area of 33.6m2: it will sit 600mm below the parapet. The sign is backed by an aluminium composite material cladding. The digital sign will be powered by solar panels on the northern side of the roof. The panels will occupy an area of 20x10m and have a maximum height of RL37.88. The solar battery is proposed to be located behind the building’s northern parapet which is RL 38.19.
The proposed sign will be used for the display of advertisements by third-party advertisers, including Government bodies, to display community and emergency information.
A private operator will operate the content management system for the advertising signage. This management system ensures that unapproved content is not downloaded either by mistake or without appropriate authorisation. The visual display board will display content in feed cycles that are subsequentially rotated on a loop cycle. Static digital advertisements will appear on the screen for a 26 second dwell time before changing to a new static digital image. There will be a 0.1 second transition time between images, which appears instantaneous. This is said to be consistent with the Digital Guidelines formulated by TfNSW, DPIE and the Outdoor Media Association.
The application includes an offer of 10% of advertising use to public benefit by a condition of consent. The applicant submits that this is consistent with the Transport Corridor Outdoor Advertising and Signage Guidelines (Guidelines) and the express requirement in section 3.17.7.2(9) of the Sydney Development Control Plan 2012 (DCP).
The Council does not accept the proposed public benefit condition and would prefer that the public benefit be secured by a Voluntary Planning Agreement. The applicant has not made such an offer, and the Court has no power to impose a planning agreement.
Under an exclusive use by-law, the owner of Lot 9, has a right to erect and maintain, relevantly, a wall sign in the same location as the sign to be replaced. The Owners Corporation has provided owner’s consent to the Development Application (Tab 8 Applicant’s Bundle of Documents).
The Owners Corporation and the applicant have also executed a Deed of Agreement which annexes Common Property Rights By-Laws that contemplate not only an exclusive right for the proposed wall sign, but also for the proposed solar panels on the roof (Tab 7 Applicant’s Bundle of Documents).
The building is legally described as SP54026 and is known as the former Grace Bros department store building. It is listed as a local heritage item in Sch 5 of the Sydney Local Environmental Plan 2012 (SLEP) as no. I2018 and described as ‘Former “Grace Bros Homewares” building including interior*’*.
The Statement of Significance and the Conservation Management Plan are before the Court and have been considered in my assessment of the application.
While the building is not located within a conservation area it is proximate to several other heritage items - as identified on the map below.
The primary street frontage of the building is to the north of Broadway, and the secondary street frontage is to the east of Bay Street.
The proposed digital sign is to be located on the secondary frontage of the building.
The building is presently utilised as student accommodation with a retail arcade located at street level.
The site is located within the MU1 Mixed Use zone under the SLEP and signage is permissible as an innominate use with development consent.
The site is located within the Mountain Street Locality which is described in section 2.6.11 of the DCP in the following terms:
“This locality is bounded by Broadway to the south, Wattle Street to the east, Wentworth Park Road to the north, and Cowper Street to the west.
The Mountain Street neighbourhood will retain its role as an important entry to Central Sydney. The area will continue to provide a diverse and sustainable mix of uses in restored and adaptively reused early warehouse buildings or in new buildings whose bulk and scale is appropriate to the large lots and existing urban form.
Views through the precinct along streets towards Wentworth Park (and potentially to the waterfront) are to be retained to provide a strong visual association of the neighbourhood and Wentworth Park. Improved access to open space is important and will enhance the amenity of the area. Avenue planting along Mountain Street is to enhance the streetscape and help break down the scale of larger buildings.
Wentworth Park is to be framed with street-edge buildings and views through the neighbourhood towards Wentworth Park will be retained.”
The statement has several principles and the applicant’s SEE has addressed these matters in particular at p 19 in section 5.1.4 (Ex B Tab 3).
Immediately to the east of the site, at the corner of Mountain Street and Broadway, is St Barnabas Church and the Former National Bank of Australia building (which is now a theatre).
The Council’s SOFC (Ex 1) describes the surrounding area as characterised by a mixture of land uses, primarily being student accommodation and commercial/retail premises. As was observed at the site view, the existing character includes the Broadway shopping strip which is characterised by all types of outdoor advertising signage, albeit very limited above awning variable digital signage within the locality.
Transport for NSW (TfNSW) has provided its concurrence to the application, and its recommended conditions have been incorporated into the Council’s draft conditions of consent (Tab 6 of Applicant’s Bundle of Documents). TfNSW has not raised any traffic safety concerns with the replacement signage.
The SOFC records the relevant planning controls at paragraph 19, which include the following (the bold text was emphasised by the Council in opening as being at issue):
Chapter 3 of the Industry & Employment SEPP:
(a) Section 3.1(1) – 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.
(b) Section 3.6 – 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 Chapter as set out in section 3.1(1)(a), and
(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5.
(c) Schedule 5 – Assessment criteria: (d) Section 3.8(1) – Relevantly, the proposed sign is not prohibited under the SEPP because it does not fall within any of the zones or descriptions identified in that clause, being:
environmentally sensitive area
heritage area (excluding railway stations)
natural or other conservation area
open space
waterway
residential (but not including a mixed residential and business zone, or similar zones)
scenic protection area
national park
nature reserve
(e) Section 3.11(1)(a) – Matters for consideration:
(1) A consent authority (other than in a case to which subsection (2) applies) must not grant consent to an application to display an advertisement to which this Chapter applies unless the advertisement or the advertising structure…
(a) is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and
(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 5 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 Chapter.
(f) Section 3.11(2) – If s 3.16 applies (which is the case), the consent authority must not grant consent unless the advertisement or the advertising structure:
(a) is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and
(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 5 and in the Guidelines and the consent authority is satisfied that the proposal is acceptable in terms of—
(i) design, and
(ii) road safety, and
(iii) the public benefits to be provided in connection with the display of the advertisement, and
(c) satisfies any other relevant requirements of this Chapter.
(g) Section 3.16(3) – If s 3.16 applies (which is the case here), the consent authority must not grant consent unless arrangements that are consistent with the Guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement. (h) Section 3.15 – Advertisements with display areas greater than 20 square metres or higher than 8 metres above ground. The consent authority must not grant consent to an application to display an advertisement to which this section applies unless:
(a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 5 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and
(b) the consent authority gave a copy of the application to TfNSW before the application is exhibited if the application is an application for the display of an advertisement to which section 3.16 applies.
(i) Section 3.16(2) – Consent authority cannot grant development consent to the display of an advertisement to which s 3.15 applies and that is within 250 metres of a classified road any part of which is visible from the classified road, unless TfNSW has provided concurrence. As stated, TfNSW’s concurrence is provided. (j) Section 3.20 – Wall advertisements:
(2) The consent authority may grant consent to a wall advertisement only if—
(a) the consent authority is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed, and
(b) for a building having—
(i) an above ground elevation of 200 square metres or more—the advertisement does not exceed 10% of the above ground elevation, and
(ii) an above ground elevation of more than 100 square metres but less than 200 square metres—the advertisement does not exceed 20 square metres, and
(iii) an above ground elevation of 100 square metres or less—the advertisement does not exceed 20% of the above ground elevation, and
(c) the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards require a greater protrusion, and
(d) the advertisement does not protrude above the parapet or eaves, and
(e) the advertisement does not extend over a window or other opening, and
(f) the advertisement does not obscure significant architectural elements of the building, and
(g) a building identification sign or business identification sign is not displayed on the building elevation.
(a) Land use table – MU1 Mixed Use zone. Signage is permissible as an innominate use with development consent. (b) Clause 4.3 – a height control of 22m. (c) Clause 5.10(4) and (5)– heritage conservation. These provisions emphasise the importance of considering the effect that the proposed signage and associated structure have on the heritage significance of the item. (d) Clause 6.21C – design excellence.
(a) Section 3.9.5 – Heritage Items. (b) Section 3.16.3 – General requirements for signage:
“(1) Signage is to be compatible with the architecture, materials, finishes and colours of the building and the streetscape.
(2) Signage attached to a building is to be positioned in locations or on panels in between any architectural elements (such as awnings, windows, doors and parapet lines). Signs are not to conceal or detract from integral architectural features or cover any mechanical ventilation systems.
(3) Signage is to be installed and secured in accordance with relevant Australian Standards.
(4) Signage that will detract from the amenity or visual quality of heritage items, heritage conservation areas, open space areas, waterways or residential areas is not permitted.
(5) Signage should not create unacceptable visual clutter taking into account existing signs, neighbouring buildings, the streetscape and the cumulative effect of signs.
(6) Signs should allow the main facades of buildings from the first floor to the rooftop or parapet to be uncluttered and generally free of signage.
(7) Signage is not to be supported by, hung from or placed on other signs or advertisements.
(8) Signage that will distract road users, or could be mistaken for a traffic control device, is not permitted.
(9) Signage that will unduly obstruct the passage or sightlines of vehicles, cyclists or pedestrians is not permitted.
(10) Advertisements, dynamic content signs and light projection signs on or within the vicinity and visible from a classified road are to be consistent with the road safety criteria in section 3 of the NSW Transport Corridor Outdoor Advertising and Signage Guidelines.
(11) Signage is not to contain reflective materials, colours and finishes.
(12) Signage is not to incorporate sound, vibration, odour or other emissions, unless the emission is necessary as part of a community message, an approved public artwork or to meet accessibility requirements.
(13) Signage is not to result in the gathering of people in any manner that will limit the movement of motorists, cyclists or pedestrians along a public road, thoroughfare, footway or other access way”
(c) Section 3.16.4 – Illuminated signage. (d) Section 3.16.7 Advertising structures and third party advertisements. (e) Section 3.16.7.2 – Replacement, modification or conversion of an existing approved advertising structure to an electronic variable content advertising structure. (f) Section 3.16.11 – Signage related to heritage items and conservation areas. (g) Section 3.16.12 – Signage Precincts.
(a) 2.3.2 Sign placement in transport corridors in urban areas. (b) 2.4 Sign clutter controls. (c) 2.5.1 General criteria. (d) 2.5.2 Wall advertisements criteria. (e) 2.5.8 Digital signs. (f) 3.2 Sign location criteria. (g) 3.3 Sign design and operation criteria. (h) 3.5 Road safety review of digital signs. (i) 4.2.3 Advertising approved by councils.
The Council’s contentions include:
Design Excellence – whether the proposed sign exhibits design excellence having regard to cl 6.21C(1) of the SLEP (Council’s Contention 5).
Heritage – whether the proposed sign is reasonable and appropriate having regard to the context, which includes the existing approval, and the relevant planning controls (Council’s Contention 6).
Public benefit – whether the applicant’s agreement to provide 10% of advertising time to the Council for the purpose of community advertisements can be dealt with by way of condition of consent, instead of a planning agreement as contended for by the Council (Council’s Contention 2).
Clause 4.6 – whether the height exceedance of the solar panels, at the point of the building to which the panels are proposed to be affixed, is justified.
However, first in importance is the Industry & Employment SEPP namely:
Whether the mandatory provisions of State Environmental Planning Policy (Industry and Employment) 2021 (Industry & Employment SEPP) have been satisfied.
As the development consent which authorised the approved sign on the building was physically commenced, albeit temporarily removed to allow maintenance, I accept that a comparison of impact must be drawn between the approved sign and the proposed digital sign as part of my assessment under s 4.15 of the EPA Act (AWS [15]-[22]). Noting, the Council, through its heritage expert Alice Stapleton, accepts as I do, that the approved sign could be reinstated pursuant to the Existing Consent at any time.
As the applicant submits s 39(4) of the Land and Environment Court Act 1979 (NSW) (LEC Act) applies to Class 1 proceedings and the Court must have regard to:
…this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (Emphasis added)
“A notice of determination of a development application is clearly an “instrument” as that word is ordinarily understood. It is a formal document having the capacity to affect legal rights and obligations. An instrument is not ordinarily limited to a document of a legislative character. It is at least arguable that the definition in s 3 is an inclusive one. The ordinary meaning of “instrument” may be incorporated into the definition by the words “includes an instrument … ”. In Sutherland Shire Council v Moir (1981) 49 LGRA 105, Kearney J held that a deposited plan was an “instrument” within the meaning of s 339(2) of the Local Government Act 1919 (NSW). There is, moreover, a suggestion by Cole J in Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 at 101 that a form prescribed by a regulation is an instrument within the meaning of s 3. Although there is some force in Mr Craig's submission, it is to be noted that the Interpretation Act defines “make”, in relation to an instrument, as including “issue” and “grant” (s 21). I am, accordingly, not persuaded that Wechsler was wrongly decided. In other words, I am not prepared to depart from the findings of Talbot J in Wechsler, namely, that a notice of determination issued in the prescribed form under s 92(1) of the Environmental Planning and Assessment Act is an instrument as defined in s 3 of the Interpretation Act. Accordingly, I should apply s 32(2) of the Interpretation Act to the development consent here.”
The Court also found that “section 39(4) only applies to relevant instruments made under a relevant Act” at [38].
Accordingly, I accept that the existing consent, which has been physically commenced for the approved sign is a relevant instrument under a relevant Act for present purposes.
In the decision of Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374, Stein JA reasoned that:
“a Council can take account of a relevant consideration by reference to a previous decision. But this does not mean that it does not have to address the issue itself. The previous decision may have great relevance, but it needs to be enlivened in the consideration of the application before it for decision. However, the previous decision would need to be sufficiently explicit on the relevant issue before its adoption could satisfy the duty to take that issue into consideration”.
Chapter 3 of the Industry & Employment SEPP regulates advertising and signage. Section 3.6 provides that a consent authority must not grant development consent for signage unless it is satisfied that the signage is consistent with the objectives of Chapter 3, set out in s 3.1 of the SEPP, and satisfies the assessment criteria in Schedule 5.
As identified earlier, the objectives/aims of Chapter 3 include at 3.1(1)(a) “to ensure that signage (including advertising) – (i) is compatible with the desired amenity and visual character of an area” (s 3.1(1)(a)).
Accepting that the proposed signage is not within a specified zone or descriptor which precludes advertising signage (s 3.8(1)), amongst other things, I need to determine whether the proposed signage is consistent with the objective that the signage be “compatible with the desired amenity and visual character of an area”.
To determine whether the proposed signage is compatible, I first need to understand what is the “desired amenity and visual character of an area” in which the signage is proposed to be located.
The applicant relies on the evidence of its planning and heritage experts (reproduced at paragraphs 28, 35 and 37(a) of its written submissions) to submit that the proposed signage structure is consistent with the objectives of the SEPP. In short, that evidence is that the replacement sign, being an electronic advertising structure, is compatible with the site context based on zoning (it is permissible with consent), the surrounding land use (commercial and mixed use development), and the built form of the existing and future desired amenity and visual character of the area as understood by the planning controls (Broadway being a shopping strip) and the fact that the area has been characterised by signage since 1920s.
It is further submitted, on the evidence particularly of Mr Murray that “…the existing character of the area and locality is informed by observations of the urban environment that comprises both the Mountain Street locality (Figure 14 in the JER) and the Broadway and Parramatta Road signage precinct” (Figure 1 in the JER).
Mr Murray’s evidence emphasised the variety of signs presently located within the relevant Mountain Street locality. In particular, the multiple illuminated top of building business identification signs at the Broadway Shopping Centre along Bay Steet (Figure 15 JER), the illustrated under awning signs on the shopfronts along Broadway, and the three digital advertising signs in the public domain on the footpaths (Figure 16 JER). He also believes that the existing consent for the site is relevant to an understanding of character (JER at [150]).
In addressing the proposed sign’s compatibility with the desired amenity and visual character of the area Mr Murray also emphasised the variety of signs located within the Broadway and Paramatta signage precinct, the large illuminated top of building signage at UTS, and the digital advertising signs located on the public footpaths on both sides of Broadway including within the Chippindale heritage conservation area on the southern side of Broadway (JER at [153]).
Simply, the Council argues – having noted the original application was given for a sign removed more than two years prior to this application – that there is no justification for this application being assessed as purported, to the modification or replacement of removed sign. It is an application for a new EVCTP sign.
As such, the Council submits that the proposal is not compatible with the site context based on surrounding land uses, the built form of the subject heritage item and the existing and desired amenity and visual character of the area called up by the Industry & Employment SEPP. It relies on the numerous DCP controls relating to character and signage which reinforce the incompatibility of EVCTP signage with the desired amenity and visual character of this area and streetscape (JER at [43], [49]). Furthermore, that “[generally], new advertising signs and third-party advertisements are not permitted” (JER at [49(a)-(j)]. Mr Colgrave’s evidence is that “EVGTP signs are not a feature of the existing character of the area, with no EVCTP signs located or approved” (JER at [43]).
It is Mr Colgrave’s considered evidence that under awning signage is preferred and has been consistently implemented, especially to this northern edge of Broadway, comprising the majority of heritage items between Wattle and Bay Streets. That description of the immediate area includes third party panels in the public domain. Any above awning signage is not encouraged in this DCP sign precinct (JER at [44]). Moreover, the Council emphasised that the static third party wall sign on the subject building was approved by South Sydney Council in 1996 under different planning controls, as were the existing historically approved static wall and sky signage on the eastern side of Broadway. That signage, together with the approved sky signage on the building at 822 George Street are the result of consents that predate the current DCP controls. Further, since the approval of the signage in 1996, the character of the area has undergone significant transition. There has been considerable investment and improvement to the quality of the built environment and public domain interfaces framing the edge of Broadway that has positively transformed the character of the precinct.
The Council further submits that the desired amenity and visual character is informed by the City of Sydney vision captured in the Access Strategy and Action Plan – Continuing the Vision adopted by the Council in Nov 2023 (Appendix J to the JER). Based on the Action for Broadway – green axis for Tech Central, a city centre gateway involving bidirectional cycleways, low emission buses and a longer term vision for light rail, the Council contends that the proposed EVCTP sign is incompatible with both the existing and desired amenity and visual character and streetscape of this area and will have detrimental effect (JER at [51]-[55]).
The Council further argues that elements such as streetscape constraints, and all the physical elements of and surrounding the site work together to make up the character of the streetscape. The absence of the approved sign on the wall on the site demonstrates the improved presentation of the heritage items’ eastern façade when viewed from the public domain. Broadway is a highly utilised pedestrian route connecting central station with key locations such as Ultimo TAFE, UTS, Broadway shopping centre and Victoria Park adjacent to Sydney University – the proposed EVCTP sign will be more visually dominant and attention seeking in nature compared to the approved static sign. More akin to a large television screen, the sign will be inconsistent with the character of the area.
While acknowledging that the site is not located in a heritage conservation area, the Council contends on its expert evidence that the installation of the proposed EVCTP signage on the eastern elevation of the subject heritage item will have an adverse impact upon the heritage items within proximity to the site. As such, it submits that the development fails a key principle for the locality which is to respond to and complement heritage items.
For present purposes, I accept that the “desired amenity” is the “reasonable expectations of residents of the area [as] informed by the current planning controls”: Telstra Corporation Ltd V Hornsby Shire Council (2006) 146 LGERA 10: [2006] NSWLEC 133 at [190]-[192]. The “visual character of an area” is also informed by these planning controls and clearly understood in the context of the existing built form.
The expectations informed by the current planning controls include the uses permitted and prohibited under those controls.
As there is no outright prohibition of illuminated or electronic variable content advertising signage on the external wall of the former Grace Bros building under the SEPP or SLEP, it must be accepted that such signage (subject to assessment) is a reasonable expectation of the residents and as such shapes the desired amenity and visual character of the area.
While the Statement of Significance for the subject building does not refer to advertising signage, the heritage experts are agreed that the location of the proposed signage on the secondary façade of the heritage building will not adversely impact the primary heritage significance of its Broadway façade.
The fact is that the Council, after assessment, has approved an illuminated static advertising sign in the location intended for the proposed sign and by so doing has shaped the reasonable expectations of the residents. An illuminated static advertising sign is part of the visual character of the area which, in turn, informs the desired amenity and visual character of the area under the current controls.
That said the “desired amenity and visual character of the area” is also shaped by the building’s location outside the identified heritage conservation area under the SLEP, and the permissibility of the proposed signage on this heritage building under s 5.10, subject to heritage assessment under relevant provisions. The Council’s DCP which provides guidance to persons carrying out development and to the Court when exercising the function of the consent authority for development on giving effect to the aims of the SLEP, facilitating development that is permissible under the SLEP and achieving the objectives of land zones under the SLEP (s 3.42(1) of the EPA Act) has divided this LGA into localities and the relevant locality statements also inform the desired amenity and visual character of the area .
In this case the site is located within the Mountain Street Locality in section 2.6.11 of the DCP (Ex 3 p 21) (reproduced above at [20])
The character statement for the Mountain Street neighbourhood states that it “retain its role as an important entry to Central Sydney” and “…continue to provide a diverse and sustainable mix of uses…” including commercial uses.
The first supporting principle for this locality is that the “development must achieve and satisfy the outcomes expressed in the character statement and supporting principles”.
Principle (b), emphasised by the Council in opening as being offended by this development, provides that “development is to respond to and complement heritage items and contributory buildings within conservation areas, including streetscapes and lanes”.
Principle (e) is to “provide commercial uses at least at ground and first floor levels, where appropriate”.
In a locality, where a diverse mix of uses including commercial is encouraged, it must be a reasonable expectation of the community that signage be part of the desired amenity and visual character of the area. An area “…physically bounded by Broadway to the South, Wattle Street to the east Wentworth park to the north and Cowper Street to the West”. This issue then becomes what type of signage is compatible with the desired amenity and the visual character of the area?
The applicant submits the proposal “invigorates” the existing static sign by proposing an upgrade to a digital sign with a reduced environmental impact, because it is proposed to be powered by solar. The proposed sign will be internally illuminated by LED lighting. The supporting frame is reduced in depth from the existing sign to visually recede from the signage presentation, reducing the bulk and form.
However, as the Council’s expert identifies the existing sign was approved under different planning controls. My focus is on the current controls which discourage any above awning wall signs in this DCP precinct. As I observed, signage was as Mr Colgrave states in his evidence typically under awning height signage including third party advertising panels in the public domain.
Relevantly, I did not observe at the site view any EVCTP wall signs above awning on heritage buildings in the relevant area. That is not surprising in light of the Council’s evidence that that such signs are not part of the desired amenity or the visual character of the relevant area. While replacement, modification and conversion of an existing approved advertising structure to an electronic variable content advertising structure may be permitted, subject to consent they must first satisfy the provisions of the Industry & Employment SEPP and I am not so satisfied based on the evidence before me that this has been done.
I accept the Council’s evidence as summarised above which accords with my observations of the area. I find that the sign proposed is not compatible with “the desired amenity and visual character of an area” as called up by the SEPP. The replacement of an approved static sign with an electronic variable content advertising structure on the wall of the heritage building, together with solar panels on the roof to partly power the digital sign will not be in harmony with “the desired amenity and visual character of an area” which is an objective of the Industry & Employment SEPP.
Accepting that the “desired amenity and visual character of an area” is also informed by the provisions of the DCP which allow for EVCTP signage to replace, convert or modify an existing static sign (section 16.7.2 of the DCP) the evidence about this issue requires analysis (Appendix H to the JER).
The applicant relies, amongst other things, on a re-submitted Visual Impact Report prepared by Urbis dated 21 January 2021 in support of its application for the replacement of the approved sign with the proposed EVCTP sign.
The visual assessment report is intended to assist in qualifying the reasonableness of the visual impact of a proposed EVCTP sign on existing and future views (JER at [140]). As such, it is required to be prepared in compliance with the requirements under cl 3.16.7.2 the DCP and in accordance with Council guidelines in cl 11.4 of Schedule 11 of the DCP (Appendix H1 JER).
The Council contends that the submitted document does not “speak to the DCP 11.1 Guidelines for a Visual Impact Assessment Report” (Para 141 JER) and therefore its conclusion that “the proposal has a negligible significance of visual impact when compared to the existing sign” is unreliable (Appendix H1 Summary p 3) and in the absence of a proper assessment that evidence should be rejected.
In particular, the document excludes consideration of nighttime impacts (Appendix H2.1 Assumptions, limitations and exclusions p 5) – which are key considerations under the Guidelines 11.1(6)(b), and relies on static image analysis which has limitations. As the report identifies, the assessment is qualified. At best “…the photomontages provide an indication of the likely visual environment, and they can only provide an approximation of the rich visual experience enabled by the human eye. As they are based on photographs, the limitations that apply to photography, including optical distortion, apply” (Appendix H1 2.1 Assumptions, limitations and exclusions p 5).
Having regard to the limitations of the visual assessment report, the Council’s experts are concerned that “…the EVCTP sign (whether characterised as either a new sign or a replacement sign) will adversely impact the desired amenity and visual character of the area particularly at night. The Council also raises concern about the impact of the proposed sign on the architectural feature lighting of the other heritage items in the area which have not been satisfactorily addressed in the applicant’s visual assessment (JER).
I found persuasive Mr Colgrave’s evidence that the artistically-muted colour advertisement and soft lighting in the photomontages (prepared by Virtual Ideas dated 27/10/25) demonstrates a “best case scenario” and, in reality, in no way equates with the experience of the EVCTP sign – especially at night – when viewed from the relevant area.
As he noted, the digital image on the proposed signage will change 18 times from the point where the sign can first be seen until viewed as if standing directly opposite (JER at [142]); not an equivalent visual impact to that of the approved static floodlit sign – as the applicant’s experts have concluded.
Based on my observations and the applicant’s evidence, I reject the case put by Mr Phillip that, arguably, in context, the proposed sign standing among a “highly varied mixture of commercial buildings, numerous types of signage as well as street lighting and a constant flow of traffic”, together with the argument that “this heritage item has had a long history with signage located on this elevation” makes the proposed digital sign compatible with the “desired amenity and visual character of the area” as required under the objectives of the Industry & Employment SEPP.
Ms Stapleton accepts, I note, the digital sign will be seen from a distance when one travels west along Broadway, and that the imposition of proposed Condition 4 to limit the operation of the signage between 11pm and 7am does not overcome concerns about the impact of the EVCTP sign on the desired amenity and visual character of the area – particularly at night.
The evidence is that EVCTP signage is not a feature of the visual character of the area and no EVCTP signs have been approved or located as Mr Colgrave identified. Typically, under awning height signage is consistently being implemented, especially to the northern edge of Broadway in the area (DCP section 3.16.12.14 Broadway and Parramatta Road signage precinct). Above awning signs are not encouraged. I accept the evidence of Council that such signage is not in keeping with the desired amenity and visual character of the area.
After assessment I accept the Council’s evidence that the digital sign will dominate the skyline and diminish the key qualities of key vistas, particularly the axial visual path along Broadway to the west. As such, it will be incompatible with the desired amenity and visual character described in the Mountain Street locality statement and Parramatta Road precinct under section 3.16.12.14 of the DCP and the area observed by the Court at the site view.
Accordingly, for the reasons stated I find that the development is not compatible with the desired amenity and visual character of the area and, therefore, not consistent with the objectives of the Industry & Employment SEPP.
As I am not satisfied that the development is consistent with the objective of the Industry & Employment SEPP, as required the development must be refused consent.
The Court orders:
The appeal is dismissed.
Exhibits are returned except for Ex A.
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Healy Capital Pty Ltd ATF Healy Family Super Fund
The Council of the City of Sydney [2026] NSWLEC 1110
(1998) 100 LGERA 365
(1997) 96 LGERA 52
(2006) 146 LGERA 10
(1989) 17 NSWLR 86