appellant. Proceeding 2019/138551: appeal upheld; development application determined by grant of consent for an illuminated northern rooftop sign at 127-131 Macquarie Street, subject to conditions (including...
Key principles
The proposed signs were business identification signs within the meaning of SEPP 64 and therefore excluded from Part 3 (including cl 21) of SEPP 64; consequently cl 21 did not...
Clause 6.17 (Sun Access Planes) of the Sydney LEP applies only where the proposed development will result in a building projecting higher than the relevant sun access plane;...
Clause 4.3 (Height of Buildings) of the Sydney LEP is not engaged where proposed works do not alter the objectively measured height of an existing building so as to create a new...
The northern rooftop sign satisfied the preconditions to consent under SEPP 64 (objectives and Schedule 1 assessment) and demonstrated design excellence under cl 6.21 of the LEP;...
Issues before the court
Whether the proposed rooftop signs were 'advertisements' to which Part 3 of SEPP 64 (and cl 21 prohibition on roof/sky advertisements) applied, or...
Plain English Summary
Landcorp appealed against Council's deemed refusal of rooftop signage at Hudson House. Council argued the signs were prohibited under SEPP 64 (roof advertisements), breached sun-access and height controls in the Sydney LEP, and would harm heritage and amenity. The Court held the signs were business identification signs (excluded from SEPP 64 Part 3), that the sun-access plane and height controls only apply where the development would cause a new projection or increase height (which these signs did not), and that the northern sign met SEPP 64 Schedule 1 and LEP design excellence requirements. The Court approved the northern sign (limiting total rooftop signs to two and imposing a five-year consent) and dismissed the separate modification proceeding.
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Deep Dive
2,054 words · generated 19/06/2026
What happened
Landcorp Australia Pty Ltd applied for two illuminated top-of-building signs atop Hudson House, 127–131 Macquarie Street, Sydney. The DA proposed one sign on the northern rooftop elevation and one on the western elevation; an existing eastern-facing 'HUDSON' sign was already present. The City of Sydney effectively refused (deemed refusal) the DA and later deemed refused a modification application to extend a prior consent to add the northern sign. Landcorp filed two Class 1 appeals in the Land and Environment Court: (1) against the deemed refusal of the DA (2019/138551), and (2) against the deemed refusal of the modification application (2020/173692). Hearing took place 11 November 2020; Duggan J delivered reasons and orders on 14 December 2020 (decision relies on paragraphs 130–131 for orders).
Whether cl 6.17 Sun Access Planes in the Sydney LEP prohibited the proposed works because the signs (or works) would result in a building projecting...
Whether cl 4.3 Height of Buildings applied so as to prohibit or require a cl 4.6 variation because the works would cause the building to exceed the...
Whether the proposed northern sign satisfied the preconditions for consent under SEPP 64 (cl 8 and Schedule 1) and displayed design excellence under...
Cited legislation
No linked legislation citations have been extracted yet.
The Council advanced two groups of arguments: (A) the proposals were prohibited development, contending SEPP 64's Part 3 (especially cl 21) captured the signs as roof/sky advertisements, that the signs constituted a 'building' for the purposes of Sydney LEP cl 6.17 (sun access plane) and cl 4.3 (height of buildings); and (B) merits grounds, adverse heritage impacts, failure to satisfy SEPP 64 Schedule 1 assessment criteria, failure to demonstrate design excellence under LEP cl 6.21, amenity impacts on the Astor Apartments rooftop, visual clutter and noncompliance with DCP limits on top-of-building signs.
Duggan J rejected the Council's prohibition arguments: he concluded the signs were business identification signs under SEPP 64 and so excluded from Part 3; cl 6.17 applied only where proposed development would result in a building projecting above the sun access plane (a forward-looking 'result' test), and the signs did not change the existing projection; and cl 4.3 is concerned with development that alters the objectively measured height so as to create or alter an exceedance, the signs did not do so as they left the objectively measured height unchanged. On merits, the Court accepted expert evidence (lighting and heritage) and the town-planning assessment that the northern sign satisfied SEPP 64 Schedule 1 factors and demonstrated design excellence under cl 6.21. The Court granted consent for the northern sign only (so total rooftop signs limited to two), with conditions including a five-year duration, and dismissed the modification appeal as unnecessary.
Why the court decided this way
Three central legal constructions drove the outcome:
Characterisation under SEPP 64: The definition of "business identification sign" requires that the sign indicate both the name of the business and the nature of the business carried on at the premises. The Court emphasised that 'indicate' is a less demanding test than 'indicate clearly' (following the reasoning in Bunnings Pty Ltd v Auburn Council, as relied upon, see the judgment's discussion at [26]). In context, "Crescent Wealth" conveyed sufficiently the nature of the business (financial/investment services), with 'Crescent' operating as a distinguishing name or descriptive of focus (ethical/muslim-centric investment), not as an obscuring element. The result was that Part 3 (including cl 21 prohibiting most roof or sky advertisements) did not apply, removing a categorical bar.
Sun access plane (LEP cl 6.17) interpretation: Duggan J applied a purposive/textual construction consistent with the Interpretation Act approach and authority cited (Environment Protection Authority v Grafil at [257] quoted at [46] of the reasons). Clause 6.17 is expressed in terms of whether the proposed development "will result" in a building projecting higher than the plane. The Court read 'will result' as referring to the operational consequence of the proposed development on projection or sunlight, not as a frozen inquiry into the existence of any part of the building presently projecting into the plane. Because the rooftop structure already projected above the plane and the proposed sign did not increase that projection or worsen sunlight outcomes, the clause was not engaged (see the reasoning at [46]-[51]).
Height control (LEP cl 4.3) interpretation: The Court read the height control as an instrument regulating developments that change the objectively measured height so as to create or increase exceedances. The clause's context (development standards governing new development) implies the clause is triggered by development that contributes to or alters the building's height measurement. Adding signs that sit within the existing envelope and do not alter that objective measurement do not engage cl 4.3; accordingly the Council's contention that the signs (being 'building' parts) required a cl 4.6 variation was rejected.
Once the prohibitions fell away, the Court proceeded to s 4.15 merits analysis. Central features influencing the merits decision were:
Expert evidence on lighting: Joint report showing illumination and light spill would be under acceptable levels and not materially affect Astor Apartments' amenity (subject to conditions).
Heritage analysis: Joint heritage reports concluded visibility of the sign from heritage items did not diminish heritage significance to a sufficiently adverse extent. The Court stressed visibility alone is not dispositive; diminution of heritage significance must be established.
DCP and design excellence: The northern sign was found to demonstrate design excellence per cl 6.21 and s 3.16.6.2 of the DCP, factors included materiality, lighting controls, contextual appropriateness, and that the sign did not cause visual clutter or unacceptable impacts. However, DCP expectation limited top-of-building signs to two per building; with the existing eastern HUDSON sign present, the DA proposing two new signs would exceed that and therefore the Court approved only the northern sign to maintain the two-sign limit.
The Court set conditions including a five-year consent term for rooftop top-of-building signs, aligning with DCP s 3.16.5.2(14) and the Council's existing practice for rooftop signs.
Before and after state of the law
Before:
SEPP 64 Part 3 prohibits most roof/sky advertisements unless specified exceptions apply. The definitions in SEPP 64 (business and building identification signs) are fact-sensitive.
LEP controls on sun access planes (cl 6.17) and heights (cl 4.3) had been applied in cases where development increased projections or height.
DCP provisions set expectations on rooftop signage (number and appearance) and required design excellence for departures.
After (as applied by this judgment):
Reinforced that SEPP 64 'business identification sign' requires only that the wording 'indicate' the nature of business, read contextually; signs like 'Crescent Wealth' can qualify where they convey business nature.
Clarified that under Sydney LEP cl 6.17 the operative enquiry is whether the proposed development will result in a new or increased projection above the sun access plane, and not automatically engaged because the underlying building already projects above the plane.
Confirmed cl 4.3 height control targets developments that alter objectively measured building height; works that do not change that objective height will not necessarily engage the height development standard.
Validated a framework where a court will limit approvals to preserve DCP expectations (here number of rooftop signs) even when a sign demonstrates design excellence.
Practically, the decision tightens focus on the causal/resultant effect of proposed works when considering sun-access and height controls, and affirms contextual textual interpretation of SEPP 64 definitions.
Key passages with plain-English translation
"The proper approach to the construction of statutory instruments is the same as for legislation: Environment Protection Authority v Grafil..." ([46])
Plain English: The Court will interpret plan provisions the same way we interpret laws, by looking at the wording, the rest of the document, and the purpose behind it.
"The requirement is for an 'indication' of the nature of the business and not a more onerous requirement..." (discussion of SEPP 64, referencing Bunnings at [26])
Plain English: A sign does not have to fully explain the company's activities; it only has to show or point to the kind of business being run there.
"The enquiry is... whether the development proposed will have the consequence of the building ... causing a projection higher than the Sun Access Plane." ([46]-[51])
Plain English: For sun-access rules, ask if this new work will make the building stick up higher than the allowed plane, if it won't change the current projection, the rule does not apply.
"Accordingly, the signs are business identification signs... Part 3... does not apply." ([82])
Plain English: The signs are the kind of signs that name the business at the site, so the special ban on roof advertisements does not apply.
"For all of those reasons... the northern sign displays design excellence." ([112])
Plain English: Taking all design criteria into account, the northern sign is of high quality and appropriate for approval.
What fact patterns trigger this precedent
Patterns where this decision will be most instructive:
Applications for rooftop signage where the applicant argues the sign is a business identification sign rather than a roof advertisement under SEPP 64.
Applications involving buildings already projecting into mapped sun-access planes where proposed works do not increase projection or decrease sunlight, invoking cl 6.17 questions.
Cases where a building already exceeds mapped height limits and the development proposed does not alter the objectively measured highest point; dispute arises about whether cl 4.3 and cl 4.6 are engaged.
Situations where heritage visibility is asserted but the contention is simply that a new sign will be visible from a heritage item, the decision underscores that visibility alone is insufficient; diminution of heritage significance must be shown.
DCP contexts where the number and location of rooftop signs are limited; the Court's willingness to impose stricter numbers to maintain local character is notable.
Patterns where the reasoning is less applicable:
New buildings or alterations that increase absolute building height or create new projections into sun-access planes; cl 6.17 and cl 4.3 will then directly engage.
Signs whose text plainly advertises products or businesses not on the premises, or where wording cannot be read as indicating the nature of the business at the site.
How later courts have treated it
(As of this decision's date and based solely on the instant judgment; subsequent treatment requires case research beyond this judgment text. The Court relied on established authorities for statutory interpretation and for the meaning of 'indicate' from Bunnings. The decision itself clarifies constructional points likely to be followed where similar factual constellations arise: (1) purposive construction of sun-access clauses, (2) contextual reading of 'building' and height controls, and (3) factual assessment of whether signage indicates business nature. Subsequent courts are likely to follow Duggan J's approach when presented with comparable LEP and SEPP provisions unless contrary higher-court authority intervenes.)
Still-open questions
Boundary between 'indication' and insufficient wording: The Court accepted 'Crescent Wealth' indicated financial services in context. But the precise boundary remains fact-sensitive: signs with more ambiguous commercial terms may lead to litigation on a similar point. There is no bright-line test from this decision beyond contextual assessment.
Interaction where proposed works are minor but nevertheless change light-reflecting surfaces or materials: The Court's 'resultant projection' test for cl 6.17 focuses on projection and sunlight; where new materials or illumination change solar reflection or shadowing in more complex ways, courts will need to clarify how cl 6.17 applies to indirect sunlight effects.
Height measurement edge cases: The decision treats the Height of Buildings control as driven by objective measurement. But cases where a sign is not plainly within exclusions to measurement (e.g. some plant or lift overrun style structures) may test the boundary of what constitutes an alteration that 'alters the height' for cl 4.3.
Consistency across local government DCPs: Duggan J applied rooftop sign limits from the City of Sydney DCP (s 3.16.5.2(7)) to a business identification sign despite no express rooftop business-sign provision. Different councils' DCP drafting could produce divergent outcomes; the decision does not resolve how general DCP sign expectations should be applied when statutory text differs.
Temporal conditions on rooftop signage: The Court adopted a five-year consent limitation for the rooftop business sign, aligning with DCP practice for building identification signs. Whether this is a general principle or specific to the DCP's aims may be tested in future cases.
Practical takeaways: when assessing rooftop signage in Sydney and similar contexts, carefully analyse (A) whether the words 'indicate' the nature of the business; (B) whether the proposed works change objective measurements relevant to sun-access or height rules; and (C) whether the proposal demonstrably meets SEPP 64 Schedule 1 and local DCP design excellence criteria, with robust joint expert evidence on lighting and heritage to address amenity and heritage contentions.
Judgment (30 paragraphs)
[1]
Nature of proceedings
Landcorp Australia Pty Ltd (the Applicant) has lodged two appeals against two deemed refusals by the Council of the City of Sydney (the Council) of a development application and a modification application concerning top of building signage.
[2]
Proceedings 2019/138551 - appeal against development application
On 18 February 2019, the Applicant lodged Development Application D/2019/136 with the Council for consent to erect two internally illuminated top of building signs (the DA). The proposed signs had an aggregate area of 67sqm and were to be installed on the north and west elevations of the existing rooftop plant structure at 127 - 131 Macquarie Street, Sydney (the Subject Site) as is illustrated below:
Figure 1: Day time signage montages.
Figure 2: Night time montage of the northern sign.
On 3 May 2019, the Applicant filed a Class 1 appeal to this Court against the deemed refusal of the DA.
The Subject Site comprises a 17-storey mixed-use commercial building known as Hudson House which was constructed in the late 1960s. Commercial offices occupy the upper floors and tenancy two on the ground floor. A licensed restaurant occupies tenancy one on the ground floor. A commercial car park is located within the basement.
The rooftop of the Subject Site is identified as Lot 20 in Strata Plan 52728. It is a separate strata lot owned privately with exclusive use rights. Crescent Wealth Investments Australasia Pty Ltd (Crescent Wealth) in the lessee of Lot 20 and have the owner's consent to lodge the DA and a modification application for signage. Crescent Wealth additionally occupies one of the commercial floors of the Subject Site as a tenant.
The Subject Site has an area of approximately 847sqm with a 27.4m primary frontage to Macquarie Street to the east and a 27.4m secondary frontage to Philip Lane to the west. The Subject Site is located approximately 59.5m to the south of the intersection of Macquarie Street and Bridge Street.
A top of building name sign displaying the text "HUDSON" is currently installed on the eastern elevation of the rooftop plant. The sign is exposed white neon 6500k. On the ground floor frontage of the building there is a sign displaying the text "HUDSON HOUSE" on a wall adjacent to the main entrance to the building.
The surrounding area is characterised by a mixture of: commercial and retail uses; visitor accommodation; residential apartment buildings; and open space.
The Subject Site is not a heritage item but is surrounded by heritage items as identified on the plan below. The heritage items are coloured in a brown colour (non-heritage items are grey) and the site is marked in red:
Figure 3: Subject Site (in red) shown in an extract of the heritage map (sheet HER_014). State and local heritage listed items are shown in brown.
History House, a 4-storey commercial building, adjoins the site to the immediate south at 133 Macquarie Street and is a state listed heritage item. The Astor Apartments, a 13-storey residential apartment block, adjoins the site to the immediate north at 123 - 125 Macquarie Street and is a local heritage item. The rooftop common terrace area of the Astor Apartments sits directly below the proposed northern sign. The rooftop area is the only outdoor area within the Astor Apartments available for use by the residents. Other surrounding state listed items include MBA House, which adjoins the Site to the immediate south at 135 - 137 Macquarie Street; the Chief Secretary's Building, located to the north of the Astor Apartments at the intersection of Macquarie Street and Bridge Street; and the site of the First Parliament House, located to the north-west of the Site at the intersection of Bridge Street and Philip Street.
The Subject Site is located within the Macquarie Street Special Character Area and is opposite the state listed Royal Botanic Garden and Domain. The Subject Site is also located within the boundary of an area described as Governors Domain and Civic Precinct which has been nominated to the Australian Heritage Council by the Heritage Office as being of national significance for National Heritage Listing.
Both signs proposed in the DA comprise aluminium fabricated letters with white opal acrylic face displaying the text "CRESCENT WEALTH". It is proposed that the signs will be backlit with LED 5200k.
The proposed sign on the northern facade comprises the word "CRESCENT", which measures 6260mm in length x 1240mm in height. Below would be the word "WEALTH", which measures 4400mm in length x 1200mm in height (aggregate area 13.04sqm). Notwithstanding what is stated at the Respondent's Amended Statement of Facts and Contentions at [54], the DA plans (at [55] of the Amended Statement of Facts and Contentions) show that the sign is recessed into the existing cladding at roof level at a height of RL 92.7 such that the face of the sign does not protrude beyond the face of the cladding.
The proposed sign on the western facade comprises the words "CRESCENT "WEALTH which measures 16345mm in length x 1820mm in height (aggregate area 29.75sqm). The sign projects 150mm beyond the existing rooftop cladding at a height of RL 92.07.
[3]
Proceedings 2020/173692 - appeal against modification application
On 5 June 2000, the Council granted development consent D/2000/205 for the installation of a neon illuminated rooftop sign on the eastern facade of the Site to display the text "HUDSON". The sign measures 15960mm in length x 4200mm in height.
Condition 4 required the sign to be removed within a period of three years or a new development application was to be lodged if the sign was to be retained. This period expired and a modification application made pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (EP&A Act) was lodged on 22 January 2018.
The modification application was approved on 5 March 2018 which had the effect of permitting the sign to remain for a further five years. The consent will lapse on 28 February 2023.
On 28 April 2020, the Applicant lodged modification application D/2000/205/B to modify development consent D/2000/205 (the Modification Application). The Modification Application sought to install an illuminated rooftop sign on the northern facade of the Subject Site in addition to the current HUDSON sign on the eastern facade. On 11 June 2020, the Applicant filed a Class 1 appeal to this Court against the deemed refusal of the Modification Application.
The proposed sign on the northern facade in the Modification Application is identical to the proposed northern facade sign in the DA: see [13] above for the relevant sign features.
The details relevant to the site the subject of this Modification Application are identical to the Subject Site details as outlined above for the DA.
[4]
Contentions - DA
In its Amended Statement of Facts and Contentions filed on 23 July 2020 the Council raised a number of contentions that are said to warrant refusal of the DA which can be summarised as follows:
1. The development is prohibited: The Council contends that the development proposed is prohibited as:
1. State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) applied to the signs the subject of the DA and the provisions of cl 21 of SEPP 64 prohibit the granting of development consent for a roof sign such as what is proposed in the DA unless it improves the visual amenity of the location in which it is displayed or it replaces an existing roof sign. This development does not meet the exceptions in cl 21 and is, therefore, incapable of being approved: Contention 1;
2. The signs breach the provisions of cl 6.17(2) of the Sydney Local Environmental Plan 2012 (the LEP) which prohibits development of a height that exceeds the Royal Botanic Garden sun access plane (the Sun Access Plane) (which is not amenable to a variation pursuant to cl 4.6 of the LEP): Contention 2;
3. The signs breach the height control in cl 4.3(1)(a) of the LEP (the Height Control) and the cl 4.6 variation lodged with the DA is not a sufficient justification of the breach such that the DA is incapable of being approved: Contention 2;
1. The development should be refused on merit: The Council contends that the following merit considerations would warrant refusal of the DA for the reasons summarised as follows:
1. Heritage impacts (Contention 3): The Subject Site is located adjacent to a number of State Heritage items and Local Heritage items (as illustrated in Figure 3 above). Further, there is a draft proposal to list the "Governor's Domain and Civic Precinct" as an item of National Heritage, which is an area in which the Subject Site is located. In particular:
1. The proposed signs have an adverse impact on the heritage significance of these items as its scale, location, and illumination will detract from the heritage setting of the neighbouring items;
2. The proximity and illumination will have an adverse effect on setting of the Astor Apartments and, in particular, its heritage listed portico and rooftop garden;
3. The proximity and illumination will have an adverse setting on the adjoining Chief Secretary's Building and the First Parliament House location adjacent to the Museum of Sydney due to its location and illumination;
4. It fails to meet the provisions of the LEP cl 5.10(1)(b) objective which requires the setting of heritage items to be conserved;
5. It fails to meet the requirements of cls 3.9.5(3)(d); 3.16.12.6(3) and 3.16.3(4) of the Sydney Development Control Plan 2012 (the DCP)
6. The Subject Site is located within the Macquarie Street special character area (DCP cl 2.1.6) and fails to meet the requirements (a), (b) and (c) for that area nor the signage precinct at 3.16.12.6 of the DCP.
1. Town Planning impacts (Contentions 4, 5, 6, 7 and 8):
1. The signs should not be approved as they do not meet the requirements of SEPP 64 Schedule 1 and are inconsistent with the objects of SEPP 64 which are a precondition to the grant of consent pursuant to cl 8 of the SEPP;
2. The signs also do not display design excellence which is a mandatory precondition to the grant of consent pursuant to cl 6.21 of the LEP;
3. The amenity of the users of the rooftop garden at the Astor Apartments will be adversely affected due to the proximity and the illumination of the sign, particularly the northern sign, which will unsatisfactorily diminish the useability of the only outdoor area for the apartment occupants;
4. The signs are inconsistent with the provisions of the DCP that limit rooftop signs to building identifications signs and the signs are not a building identification sign. Even if the sign were to be considered as a building identification sign the DCP only permits two top of building signs and the DA (with the existing "HUDSON" sign) proposes three signs;
5. If the Height Control provisions apply to the DA or modification, whether the cl 4.6 variation should not be upheld;
6. The design, number and location of the signs will also produce unacceptable visual clutter in the locality; and
7. Failure to provide sufficient signage strategy as required by s 3.16.1 of the DCP.
[5]
Contentions - modification application
The Applicant filed the Modification Application as a failsafe in the event that the DA was found to be prohibited. If the DA is not prohibited and is otherwise acceptable on merit the Applicant does not require the Modification Application to be determined and it can be dismissed. However, if it is required to be determined the Council has raised a number of contentions that reflect the same heritage and town planning issues raised in the DA appeal and the additional contention that the proposed additional sign in the Modification Application is not development that is substantially the same as that which was originally approved and as such is incapable of being approved by the Court.
[6]
Is the development proposed by the DA prohibited development?
[7]
SEPP 64
The Council submitted that the proper characterisation of the signs proposed in the DA was "Signage" as defined in SEPP 64 but not signage that was either a "Building Identification Sign" or a "Business Identification Sign". Each of these terms are defined as meaning:
signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes:
(a) building identification signs, and
(b) business identification signs, and
(c) advertisements to which Part 3 applies,
but does not include traffic signs or traffic control facilities.
building identification sign means a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services.
business identification sign means a sign -
(a) that indicates -
(i) the name of the person or business, and
(ii) the nature of 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 contain any advertising relating to a person who does not carry on business at the premises or place.
The signs proposed could not be characterised as a building identification sign as the sign does not represent the name of the building at the Subject Site that is known as Hudson House. Nor can the signs be business identification signs as the wording of the sign as "CRESENT WEALTH" does not identify the nature of the business being carried on by the company. It was submitted that the concept of "Wealth" could relate to many products other than financial services and may speak more of "wellbeing" and "abundance" rather than financial services. The Council relied on the dictionary definition of the word "Wealth" that defines the word as:
wealth
noun 1. a great store of valuable possessions, property, or riches: the wealth of a city.
2. a rich abundance or profusion of anything: a wealth of imagery.
3. Economics
a. all things having a value in money, in exchange, or in use.
b. anything having utility and capable of being appropriated or exchanged.
4. rich or valuable contents or produce: the wealth of the soil.
5. the state of being rich; affluence: persons of wealth and standing.
6. Obsolete wellbeing or prosperity.
(Macquarie Dictionary online)
[8]
Sun Access Plane
Clause 6.17 of the LEP makes provision for certain specific areas where solar access is important and fixes a relevant Sun Access Plane. That clause provides:
6.17 Sun access planes
(1) The objective of this clause are -
(a) to ensure that buildings maximise sunlight access to the public places set out in this clause, and
(b) to ensure sunlight access to the facades of sandstone buildings in special character areas to assist the conservation of the sandstone and to maintain the amenity of those areas.
(2) The consent authority must not grant development consent to development on land if the development will result in any building on the land projecting higher than any part of a sun access plane taken to extend over the land under this clause.
(3) Each of subclauses (5)-(19) describes a different sun access plane that is taken to extend over land. The front of each plane is a line between two specified points (X and Y) and the sides of the plane extend back from those points along a specified horizontal bearing (B) and vertical angle (V).
It was an agreed fact that the part of the existing building upon which the signs were to be affixed (or recessed into the existing facade) were located on a part of the building that projected higher than the relevant Sun Access Plane for the Royal Botanic Garden. The extent of the projection is illustrated below:
Figure 4: Royal Botanic Garden Sun Access Plane north and west facades.
This clause is not amenable to a variation under cl 4.6 as it has been specifically excluded from its operation in cl 4.6(8)(ce). The Sun Access Plane provisions may only be varied in the manner set out in cl 6.18 that provides:
6.18 Exceptions to sun access planes
(1) Development consent may be granted to development that will result in a building on land projecting higher than a sun access plane that is taken by this Part to extend over the land if any one or more of the following apply -
(a) two sun access planes specified in any one of the following subparagraphs are both taken to extend over the land and the building does not project above the higher of those two planes -
(i) Hyde Park North 2A and Hyde Park North 2B,
(ii) Pitt Street Mall 6A and Pitt Street Mall 6B,
(iii) Wynyard Park 9A and Wynyard Park 9B,
(b) the parts of the building that project higher than the sun access plane are on category B land that adjoins category A land and will not exceed the height of an existing building on the category A land,
(c) the parts of the building that project higher than the sun access plane are on category A land and will result in at least a 50% reduction in the overshadowing on land at Belmore Park, Hyde Park or Wynyard Park (as shown on the Sun Access Protection Map) between 12.00 and 14.00 on 21 June in each year, caused by all buildings on the site of the proposed development.
(2) In this clause -
category A land means land shown on the Sun Access Protection Map as being in category A.
category B land means land shown on the Sun Access Protection Map as being in category B.
In this case, the Applicant cannot satisfy the requirements of that clause and the DA is, therefore, prohibited.
[9]
Building Height
It was an agreed fact that the existing building exceeds the maximum 55m height limit for the Subject Site as identified in the Council's Height of Buildings Map. The Council submitted that the signs were a building, on the same basis as it identified that the sign was a building with respect to the Sun Access Plane contention. As the signs were a building, DA engaged the provisions of cl 4.3 in that the height of a building, namely the signs, will be higher than 55m. The provisions of cl 4.3 relevant to the determination of this DA provides:
4.3 Height of buildings
(1) The objectives of this clause are as follows -
(a) to ensure the height of development is appropriate to the condition of the site and its context,
(b) to ensure appropriate height transitions between new development and heritage items and buildings in heritage conservation areas or special character areas,
(c) to promote the sharing of views,
…
(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.
Whilst the height standard is amenable to a variation pursuant to cl 4.6, the Applicant had not demonstrated that the variation should be granted as:
1. The cl 4.6 variation fails to demonstrate compliance with the objectives; and
2. The cl 4.6 variation does not demonstrate sufficient environmental benefits in the proposal.
[10]
SEPP 64
The Applicant submitted that the signs were to be properly characterised as business identification signs and that the Court would be satisfied that the context and words of SEPP 64 do not require a detailed explanation of the nature of the business but merely that the words are sufficient to identify the "nature" of the business being carried on rather than the particular specific focus of the business. "Crescent Wealth" is sufficient to ensure that the nature of the business as the provider of financial services is conveyed. The reference to "Crescent" does not obscure the meaning conveyed by the term "Wealth".
As properly characterised as a business identification sign the DA is excluded from the operation of Part 3 (including cl 21) of SEPP 64 by operation of cl 9 (which is within Part 3) that provides:
9 Advertisements to which this Part applies
(1) This Part applies to all signage to which this Policy applies, other than the following:
(a) business identification signs,
(b) building identification signs,
(c) signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it,
(d) signage on vehicles.
(2) Despite subclause (1) (d), clause 27A applies to signage on a trailer (within the meaning of the Road Transport Act 2013).
Therefore, Part 3 does not apply and cl 21 of the SEPP is not engaged. In the alternative, even if cl 21 is engaged, the sign meets the requirements of the clause.
[11]
Sun Access Plane
The Sun Access Plane clause only applies to buildings that result in a building projecting above it: cl 6.17(2). This building already projects above the plane and the proposed signs do not increase or alter the extent to which the building projects above the plane. Therefore, even if the signs are said to be a building independent of the underlying building, they do not result in the relevant projection to which cl 6.17 of the CEP is directed.
The construction of the meaning of "result" in this clause contended for by the Applicant is consistent with both the language of the clause and a purposive construction when the objects of the clause are considered. The objects of the clause speak specifically to changes that result in a lessening of sunlight and, therefore, the "result" to which the clause is directed is one that lessens sunlight not one that relates to changes to an existing protrusion that does not affect a change.
[12]
Building Height
The Applicant contended that the addition of the signs did not comprise a building exceeding the Height of Buildings Map height as it did not change the height relationship already fixed by the existing building on the Subject Site.
The determination of whether the proposed signs are a "building" to which the provision operates requires an interpretation of the terms of the clause having regard to its text and context. The approach taken by the Council by applying the definition from the EP&A Act without considering the text and context was erroneous as: qualification in the definitions provisions of the EP&A Act; the operation of s 6 of the Interpretation Act 1987; and the common law, all require definitions to be applied only where it is consistent with the context in which it is used. The context of the use of the term "building" in cl 4.3 of the CEP indicates a new building that effects a breach of the Height Control not a change to an existing building where such change does not result in an increase in the height of the building by reference to the maximum height indicated on the Height of Buildings Map in the LEP.
If, contrary to the submissions made by the Applicant, cl 4.3 of the LEP is engaged, the cl 4.6 variation would be upheld for the reasons identified by Mr Harding, the town planner for the Applicant.
[13]
SEPP 64
There is no dispute that the proposed signs contain the name of a business being carried on at the premises. The only issue is whether the wording of the signs "indicate the nature of the business". In order for a sign to be characterised as a business identification sign it must satisfy both of the elements in the definition: Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386.
It is apparent from the formulation of the words in the definition of business identification sign that the requirement is for an "indication" of the nature of the business and not a more onerous requirement, such as "indicate clearly" or some other test as was indicated at [51] of Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386 recited at [26] above.
The sign in this case, comprises the words "Crescent Wealth" and the business is the provision of investment and financial services with a particular emphasis on financial products that accord with the tenets of the Muslim faith. I do not accept the Council's submission that the reference to "Wealth" is insufficient to indicate the nature of the business as wealth, by reference to the dictionary definition, means a profusion of something, not necessarily money. Whilst the dictionary definition relied upon does provide the full gamut of the possible meanings of the word, it also makes it plain that the primary theme of the meaning is an abundance in material possessions and has a direct meaning relating to economic abundance. The use of the word "Wealth" in the present context indicates that the nature of the business is the accumulation of material wealth by way of the provision of assistance to achieve such an accumulation. The common theme of the word as defined and the usual use of it in common parlance is related to affluence which is able to be achieved through the accumulation of money. It is also noted that the reference in the definition to wellbeing is an obsolete use of this word. Accordingly, the use of the word "Wealth" is sufficient to indicate the nature of the business (being financial services) for the purposes of the definition of a business identification sign as applies to SEPP 64.
The addition of the word "Crescent" does not diminish the reference to "Wealth". The reference to "Crescent" is either a reference to a name to distinguish one financial product from another or a clear indication of the focus of this particular business towards those who choose to invest with a particular ethical foundation. Neither of the meanings available to this term diminish the clarity of the term "Wealth" as an indication of the nature of the business being carried on at the premises. Accordingly, the proposed signs are properly characterised as business identification signs for the purposes of SEPP 64 and Part 3 of that SEPP does not apply to the signs. Therefore, the signs are permissible whether or not they are in breach of cl 21 of Part 3 of SEPP 64.
[14]
Sun Access Plane
The contention raised by the Council turns upon the construction of the provision of cl 6.17 of the LEP. The proper approach to the construction of statutory instruments is the same as for legislation: Environment Protection Authority v Grafil Pty Ltd (2019) 101 NSWLR 245 at [257]. In broad terms the meaning is to be determined from both the text and the context of the provision and where a construction would promote the object or purpose underlying the instrument such is to be preferred over a construction that would not: s 33 Interpretation Act 1987.
The subject provision of the LEP is expressed in terms of an outcome, namely that if a development as proposed is approved it will result in the building projecting higher than the identified Sun Access Plane. The enquiry is, therefore, directed not to whether the building on which the development is proposed projects through the Sun Access Plane (present factual situation) but whether the development proposed will have the consequence of the building (that is, the development proposed) itself causing a projection higher than the Sun Access Plane (proposed future situation).
In the context of the text of the clause it matters not whether the signs themselves are a "building" (being a part of a structure or building) as the clause is looking to the consequence of the development proposed. On the agreed facts of this DA the answer must be: alter or change the existing projection above the Sun Access Plane.
This is not to say that all development applications that rely on a building that is in existence above a Sun Access Plane will not be subject to cl 6.17 where a proposal operates to increase the loss of sunlight from a projection into the area above the Sun Access Plane. It would result in a building that was higher that the plane and, therefore, be subject to the provision of cl 6.17.
This approach to the construction of the text of the clause is also consistent with the context in which the clause is found. The stated objective of the clause is to maximise sunlight access. The concept of maximising sunlight access can only have application where a proposal will have the capacity to affect the desired level of sunlight access (by decrease or the possibility of increase if, by way of example, the building was to be demolished and rebuilt). The provision is to control projections into the plane that may reduce the amount of sunlight on certain nominated features of the public domain and sandstone buildings. This context indicates that where the building exists and there is no change to the sunlight impacts of that building from other development on the Subject Site (including on that part of the building that projects higher than the Sun Access Plane) the provisions of the clause are not relevantly applicable to that development. This context is reinforced by the similar terminology of a "result" the exceptions expressed in cl 6.18.
[15]
Building Height
This contention also turns on the construction of the LEP as a statutory instrument and the same considerations to that task as were identified at [46] above apply to the task of construing the meaning of cl 4.3 and determining whether it relevantly applies to the facts of this DA.
The text of the operative part of cl 4.3 makes the clear statement that the height of a building on land is not to exceed the maximum height fixed by reference to a map. The Dictionary to the LEP defines the manner in which the building height or height of building is to be determined as:
building height (or height of building) means -
(a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or
(b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building,
including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.
The difference in the defined term ("Height of Building) and the term used in the clause("Height of a Building") is of no consequence as the clause refers to the particular building in question and the defined term is formulated such that it refers to the determination of the height of any building and then in its substantive provisions relates to "a" building for the purposes of the application of the means of measuring height.
The development as proposed in the DA is not development that contributes to or is altering the height of the building. It is, as it presently exists, at a height of 64m and, therefore, in excess of the maximum height of 55m fixed in the Height of Buildings Map for the Subject Site.
The context of this clause is that it is located in that part of the LEP which is directed to the provision of development standards for new development. It manages change. To read the clause in this context it can only be relevantly operative where the development proposed creates some exceedance to the height of a building as objectively determined by reference to the objective means of measuring height as provided for in the LEP.
This does not have the consequence that only wholly new buildings will be the subject of the development standard in this clause. In some cases this may be where an alteration to an existing building alters the nature and extent of an existing exceedance, or, where a compliant existing building is altered such that it exceeds the Height of Buildings Map. However, where development is related to a part of an existing building and the introduction of that development does not alter the height of the building the context does not indicate that the clause would operate relevantly on that development.
[16]
Conclusion on whether development is prohibited
For the reasons outlined above, the DA is not prohibited development as:
1. The signs are business identification signs. Accordingly, Part 3 and cl 21 in particular, do not apply to the DA;
2. The DA is not development that results is a projection of the Sun Access Plane and, therefore, cl 6.17 of the LEP does not apply to a determination of the DA; and
3. The DA is not development for a building that exceeds the maximum height shown for the land and, therefore, the development standard in cl 4.3 of the LEP does not apply to a determination of the DA.
[17]
Should the development be approved having regard to the relevant considerations in s 4.15 of the EP&A Act?
[18]
Evidence
The Court, in the company of representatives of the parties, undertook an inspection of the locality generally and the rooftop area of the Astor Apartments. Evidence from those who were opposed to the granting of consent was provided by way of the tender of the written submission received by the Council and were considered in the determination of these appeals.
To address the Council's contentions relating to the impacts from the illumination of the sign/s evidence from experts in lighting, by way of a Joint Expert Report, was prepared in each proceeding by Mr Shamier for the Applicant and Mr Nammuni for the Council. The experts agreed that (subject to the imposition of some agreed conditions) the amenity of the area generally and the amenity of the interior and exterior of the Astor Apartments would not be adversely affected by the illumination of the sign/s. In addition, the lighting experts agreed that the light spill and illumination of the sign/s would be well below acceptable levels for the environment in which they were proposed as the signs emit a lighting level more akin to a rural environment than a densely developed urban CBD. These witnesses were not required for cross-examination and did not give oral evidence in the proceedings.
[19]
Heritage
Evidence relating to the assessment of heritage impacts of the DA and the Modification Application was given by way of Joint Reports prepared by Mr Stephen Davies for the Applicant and Mr Hui Wang for the Council. These witnesses also gave oral evidence at the hearing.
The experts identified that the relevant provisions of the LEP relating to heritage impacts were:
1. Clause 5.10(5) of the LEP provides:
(5) Heritage assessment The consent authority may, before granting consent to any development -
(a) on land on which a heritage item is located, or
(b) on land that is within a heritage conservation area, or
(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),
require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
The relevant provisions of the DCP to which the heritage experts gave evidence were:
1. The objectives at cl 3.9 which state:
Objectives
(a) Ensure that heritage significance is considered for heritage items, development within heritage conservation areas, and development affecting archaeological sites and places of Aboriginal heritage significance.
(b) Enhance the character and heritage significance of heritage items and heritage conservation areas and ensure that infill development is designed to respond positively to the heritage character of adjoining and nearby buildings and features of the public domain.
1. And the operative provisions:
3.9.5 Heritage items
Development in the vicinity of a heritage item can have an impact upon the heritage significance of the item. The determination of the setting of a heritage item should consider the historical property boundaries, significant vegetation and landscaping, archaeological features, and significant views to and from the property.
Objective
Ensure that development in the vicinity of heritage items is designed and sited to protect the heritage significance of the item.
Provisions
…
(4) Development in the vicinity of a heritage item is to minimise the impact on the setting of the item by:
(a) providing an adequate area around the building to allow interpretation of the heritage item;
…; and
(d) Retaining and respecting significant views to and from the heritage item
Mr Wang opposed the granting of consent to either application on heritage grounds as:
1. The heritage significance of the adjoining Astor Apartments included the rooftop portico and garden. A sign or signs visible from this location would diminish the setting of the heritage item when viewed from public locations along Macquarie Street, the Royal Botanic Garden and adjoining public places and Bridge Street;
2. The enjoyment of the heritage significant rooftop would be diminished by the proximity of the illuminated sign/s, although he accepted this was likely to be an amenity concern rather than a heritage impact;
3. Viewing the sign/s over the Chief Secretary's Building would diminish the heritage significance of that building which includes the roofscape (the copper cupola which is particularly significant and visible). In addition, the present environment in the locality and setting of this heritage item is largely devoid of signage, or where there is signage, it is sufficiently distant by vertical and horizontal distance that the impact is not great. The sign/s will be too close and thereby diminish the heritage significance;
4. The site of the First Parliament House which is in the forecourt of the Sydney Museum is a location where the sign/s will be visible and will impact on the heritage significance of this item. He did acknowledge that the heritage significance of the First Parliament House was primarily archaeological and was, therefore, not likely to be adversely diminished by the sign/s, but he remained concern that they could be viewed from that location;
5. As a matter of general heritage concern this was a location where there were many heritage items and the area had been identified as a special character area due to the density of heritage items; visible illuminated sign/s would detract from the heritage character of the area.
[20]
Town Planning
Evidence relating to the assessment of Town Planning impacts of the DA and Modification Application was given by way of Joint Reports prepared by Mr Harding for the Applicant and Ms Music for the Council. These witnesses also gave oral evidence in the hearing.
The Town Planning experts agreed that irrespective of whether Part 3 of SEPP 64 applies to the DA, the sign/s still require consideration pursuant to the provisions of the SEPP by operation of cl 8 which provides:
8 Granting of consent to signage
A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:
(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and
(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.
This provision as a consequence also requires a consideration of the objectives of the SEPP and Schedule 1. The provisions of Schedule 1 are reproduced in Annexure 1 to this decision due to its length.
In addition to the building height provisions of the LEP the town planners also gave evidence with respect to whether the DA met the requirements of cl 6.21 of the LEP relating to design excellence. The provisions of cl 6.21 are reproduced as Annexure 2 hereto due to its length.
The town planners addressed whether the cl 4.6 variation should be upheld. As I have found that the DA is not development that results in a projection of the Sun Access Plane and that Height Control does not apply to the DA, a consideration of cl 4.6 variation is not required.
The relevant provisions of the DCP to which the witnesses referred were:
3.16.12 Signage precincts
(1) The following provisions apply to areas identified as signage precincts on the Signage Precincts Map.
(2) Signage within a signage precinct is to satisfy all development standards for the relevant precinct. The general development standards contained in this section continue to apply where a component of a sign or advertisement is not referred to in the signage precinct standards.
(3) All signage within a signage precinct is to have regard to the locality statements in Section 2 of this DCP, any statement of significance in a heritage inventory sheet and any approved signage strategy applying to the land.
3.16.12.6 Macquarie Street and College Street East signage precincts
(1) Signage is to be designed to respond to the significant heritage, ceremonial and institutional character within these precincts, as outlined in the locality statements in section 2 of this DCP and the relative heritage statement of significance.
(2) Signage on heritage items is to utilise individual lettering where attached to a building having regard to the potential impact from attaching a sign to significant fabric. Where a back mounting or sign plate is required, it is to be constructed of a high quality material that is reflective of the heritage significance, such as bronze, brass or stainless steel. Business identification signs are not permitted to be displayed on the facades of buildings, unless such signage is an integral component of the heritage significance. Signs inside windows are to be setback a minimum of 1m from the glass.
(3) Signage on non-heritage items is to be complementary to the significance of heritage items in the precinct.
(4) Dynamic content signs for business identification or on-premises advertisements are not permitted fronting Macquarie Street between Queens Square and Bent Street. Dynamic content signs are only to be considered where:
(a) associated with an approved civic, curatorial, institutional or public interest land use where the signage is integral to convey community information related to the approved use; or
(b) the sign achieves design excellence under Section 3.16.6.2.
(5) The replacement, modification or conversion of an existing approved advertising structure to an electronic variable content advertising structure is not permitted.
[21]
Findings on merit considerations of the DA
Having determined that the development the subject of the DA is capable of approval, in that it is not prohibited, the merits of the matter are to be considered in order to determine whether development consent should be granted at all, and if approved, what conditions should be imposed upon any such development consent. There are two matters that relate to the merit determination of the DA upon which the consent authority must be satisfied as a precondition to the granting of consent. These are:
1. That the signage is consistent with the objectives of SEPP 64 as set out in cl 3(1)(a) and that the signage satisfies the assessment criteria specified in Schedule 1 to the SEPP; and
2. That the proposed development exhibits design excellence and in determining whether design excellence is exhibited the matters in cl 6.21(4) of the LEP must be considered.
If the state of satisfaction required by those provisions is not achieved, the consent authority is not permitted to grant development consent. As these provisions are preconditions to the grant of any consent I will consider each of these matters first to determine whether the state of satisfaction has been reached and only if such satisfaction is reached is it appropriate to consider the other merit matters raised as contentions in this appeal.
[22]
SEPP 64 objectives and Schedule 1
The objectives of SEPP 64 in cl 3(1)(a) provide:
3 Aims, objectives etc
(1) This Policy aims:
(a) to ensure that signage (including advertising):
(i) is compatible with the desired amenity and visual character of an area, and
(ii) provides effective communication in suitable locations, and
(iii) is of high quality design and finish, and
…
These objectives raise for consideration factors that are also required to be considered in the provisions of Schedule 1 and I will deal with the matters raised by the objectives and the relevant matters in Schedule 1 together.
The parties agreed that not all of the matters raised for consideration in Schedule 1 would arise for consideration in these proceedings as the signs in the DA do not have a consequence that would require a consideration on all of the matters in Schedule 1. Having considered the totality of the matters listed in Schedule 1 I concur with the assessment of the parties that the matters relevant for consideration as raised by the Schedule are set out in those parts of sections 1, 2, 3, 4, 5, and 7 that have been underlined in the reproduction of Schedule 1 at Annexure 1. I will deal with each of these underlined matters in turn.
[23]
Character of the area
For the reasons that follow, I determine that (subject to a reduction in the number of signs as outlined below) the DA is compatible with the existing and desired future character of the area/locality, is in a suitable location and is of high quality design and finish. The existing character of the area and the desired future character are generally expressed in s 2.1.6 of the DCP for the Macquarie Street Special Character Area within which the Subject Site is located that provides:
Macquarie Street contains a collection of highly significant buildings dating from the early 19th century to the late 20th century. Originally a government precinct, it has expanded to embrace first residential, professional, then commercial and tourism uses. Macquarie Street forms the eastern built edge of the City Centre. It is characterised by two distinct sides: its western built edge consists of medium scale buildings, stepping up to the city high rise beyond, creating a prominent city skyline when viewed from the Botanic Gardens; while the eastern edge includes the Botanic Gardens and to the south a cohesive rare group of public buildings of national significance, that terminate east-west streets and create significant vistas, particularly from Martin Place. Macquarie Street is an important civic street providing a vista terminated to the south by Hyde Park, with views north to the Opera House.
Whilst this statement of the existing and desired future character does not expressly refer to signage (or rooftop signs) the identification of the features expressed in this special character area provides a framework to assist in identifying the important features from which the character of the area is derived.
The desired future character, in so far as it deals with signage in particular, is also expressed in the DCP by reference to "signage precincts". This Subject Site falls within the Macquarie Street and College Street East signage precinct at s 3.16.12.6 of the DCP, the extent of which is illustrated on the signage precincts map as Area 9. The relevant components of that provision is recited at [73] above:
3.16.12.6 Macquarie Street and College Street East signage precincts
(1) Signage is to be designed to respond to the significant heritage, ceremonial and institutional character within these precincts, as outlined in the locality statements in section 2 of this DCP and the relative heritage statement of significance.
…
(3) Signage on non-heritage items is to be complementary to the significance of heritage items in the precinct….
[24]
Illumination
The desired and future character of the area identified above required an assessment of that character and a determination of whether the sign was consistent with that character. The elements of the character of this area required a consideration of the matters identified in Schedule 1 at 2, 3, 4, 5 and 7. For those reasons outlined above, I am therefore also satisfied that the northern sign satisfies the assessment criteria in each of the heads of consideration in Schedule 1 of SEPP 64 relevant to a determination of this DA.
[25]
Design excellence - cl 6.21 LEP
Satisfaction that the signs the subject of the DA exhibit design excellence after consideration of the matters referred to in cl 6.21(4) of the LEP is a precondition to the grant of development consent. Absent such satisfaction development consent cannot be granted.
Each of the matters required to be considered in order to determine whether the DA (comprising the northern sign alone) demonstrates design excellence, whilst relevant, are not all considerations which would require detailed assessment in the circumstances of this case. The parties identified (and after considering the clause and the evidence I accept) that the particular sub-clauses of cl 6.21(4) that are engaged by the DA are: (a), (b), (d)(iii), (d)(x) and (d)(xi). For the reasons I have set out above, I am satisfied that the DA for the northern sign displays design excellence on the grounds that: the signs display a high standard of architectural design, materials and detailing appropriate to the building type and location; the proposal has satisfactorily addressed heritage issues; the impact on the public domain and the special character area also appropriately addressed.
The remaining consideration under cl 6.21 that has not already been dealt with is cl 6.21(4)(b):
1. Whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain.
The Council submitted that the consent authority could not be satisfied that the sign would "improve" the quality and amenity of the public domain. The suggestion being that some measurable betterment needed to be demonstrated, which this proposal did not display - even if it was otherwise acceptable on merit.
The concept of "improve" is quite a subjective term when applied to development generally, and signs more particularly. Signage may be considered by some as undesirable in all cases as they are not considered a desirable form of development and certainly could not be said to improve the public domain if visible at all.
However, this is not the position as expressed in the Council controls. The Council in the LEP and the DCP has identified signage as a permissible form of development in the Zone in which the Subject Site is located. Further, the Council by the DCP provision expressly encourages signage. The stated purpose of the DCP s 3.16 signage provision is:
These provisions encourage signs and advertisements (signage) that contribute positively to the public domain by achieving high design quality. The provisions promote signage that is appropriately located and will protect the significant characteristics of buildings, streetscapes, vistas and the city skyline. They also protect the amenity of residents, workers and visitors, and ensure the safety of all road users.
[26]
Other merit considerations
The reference in the contentions to the inadequacy of the signage strategy is not a reason for refusal of this application. The requirement for a strategy is imposed by s 3.16.1 of the DCP but provides no guidance as to the context of such strategy as the Council has not adopted any guidelines. I find that the strategy submitted by the Applicant (Exhibit P) is sufficient to meet the DCP requirement.
The two relevant preconditions to the grant of consent being SEPP 64 and cl 6.21 of the LEP have required a determination upon all matters in dispute between the parties as raised in the Amended Statement of Facts and Contentions. I note that the Amended Statement of Facts and Contentions raised the subject matters for consideration by way of multiple references that were in fact raising a single issue for determination. As I have addressed above, the subject matters grouped together (rather than by reference to the multiple repetitions of the issue in separate contentions) there remain no further matters that require separate determination. For completeness, however, to the extent that a contention was raised in slightly different language, and lest it be said that it was not addressed in this determination, for the reasons outlined above, I determine that on merit that the northern sign is worthy of approval subject to conditions.
[27]
Conditions
For the reasons outlined above, it is appropriate that only one of the signs the subject of the DA be approved in order that the total number of signs on the Subject Site is limited to two signs comprising the proposed northern sign and the existing sign on the eastern facade of the building. Accordingly, I propose to amend condition 1 which was proposed by the parties as an agreed condition in the following manner:
1. Approved Development
1. Development consent is granted for an illuminated sign to the northern elevation of the existing building at 127-131 Macquarie Street Sydney (The Development).
2. This consent does not grant development consent for any sign on the western elevation of the existing building.
3. The Development must be in accordance with Development Application No D/2019/136 dated 18 February 2019 and the drawings contained in signage package issue 08- North and West Elevations labelled "LDC20778" and dated 29 January 2020 detailing the north elevation and west elevation to the extent that such Development Application and drawings relate to the sign on the northern elevation.
And as amended by the conditions of this consent.
1. In the event of any inconsistency between the approved plans and supplementary documentation, the drawings will prevail.
The proposed conditions to be imposed upon any consent were in large part agreed between the parties. The only dispute that remained was whether the term of the time limitation of the consent should be for five years as proposed by the Council or 15 years as proposed by the Applicant. As identified in the reasoning above, as the sign is characterised as a business identification sign there is no express provision in the DCP that makes provision for such signs at a rooftop. However, s 3.16.5.2(14) in the DCP relates to rooftop building identification signs which include the requirement that:
(14) Development consents for top of building signs are to be limited to 5 years. Applications for renewal in the form of a Section 96 Application to modify the original consent or a new development application can be lodged up to 6 months before the expiration of a development consent.
In these circumstances, as the sign is proposed as a rooftop business identification sign and I have found that the desired future character of the area would limit such signs as if they were building identification rooftop signs, I also consider that it is appropriate that the northern sign be subject to the same time limitation as any other rooftop sign. Accordingly, I propose to grant the consent subject to a condition that limits the duration of the consent to five years.
[28]
Conclusions and Orders
The development application for the northern sign should be determined by the grant of consent subject to conditions.
The Court orders that:
1. In proceedings 2019/138551:
1. The appeal is upheld; and
2. The development application is determined by the grant of consent subject to conditions, in accordance with Annexure A.
1. In proceedings 2020/173692:
1. The proceedings are dismissed.
1. The exhibits, other than Exhibit G are to be returned.
Amendments
14 December 2020 - Coversheet - typographical error - amend representation
15 December 2020 - Coversheet - typographical error - amend medium neutral citation
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 December 2020
Proceeding 2019/138551: appeal upheld; development application determined by grant of consent for an illuminated northern rooftop sign at 127-131 Macquarie Street, subject to conditions (including only northern sign approved, western sign not approved, and time-limited five-year consent). Proceeding 2020/173692: modification proceedings dismissed.
Further, the use of the term "Crescent" does not add to the understanding of the nature of the business but operates to obscure any meaning relating to financial services. Again, by reference to the Dictionary that word is defined as:
Crescent
noun 1.
a. the shape of the moon in its first or last quarter; the shape bounded by two convex lines which intersect twice.
b. any of the similar aspects of Venus or Mercury when less than half of the illuminated hemisphere can be seen.
2. a representation of this.
3.
a. a representation of this shape used as the symbol of Islam.
b. the, (usually upper case) (especially formerly) the political power of the Ottoman Empire or of Islam generally.
4. any crescent-shaped object, as a roll of bread.
5. US a percussion instrument used in military bands, consisting of a crescent-shaped metal plate hung with a set of little bells.
6. a curved street.
7. Chiefly WA and Tasmania → crescent spanner.
-adjective 8. shaped like the moon in its first quarter.
9. increasing; growing.
In support of this submission the Council relied upon the decision in Bunnings Pty Ltd v Auburn Council (2004) 134 LGERA 386 at [51] where it was held by Pearlman AJA that:
In my opinion, Mr Foster's submission on this point is correct. I do not think that the word "indicates" and the words "must contain" are synonymous in the context of the definition of "business identification sign". To adopt the dictionary definition of the word "indicate", what is required to bring the sign within the definition of "business identification sign" is that the nominated matters be pointed out, pointed to, made known or shown. The nominated matters are not required to be contained (in the sense of explicitly stated) within the sign.
As the signs were properly characterised as "Signage" it would fall within the definition of roof or sky advertisement defined as:
roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.
If the signs were characterised as a roof or sky advertisement, Part 3 of SEPP 64 applied to the DA and by operation of Part 3 cl 21(1)(a) the sign was prohibited as it could not meet the requirements set out in cl 21(1)(a) which are the only basis on which a consent could be granted. The relevant provision of cl 21(1)(a) are:
21 Roof or sky advertisements
(1) The consent authority may grant consent to a roof or sky advertisement only if:
(a) the consent authority is satisfied:
(i) that the advertisement replaces one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed, or
(ii) that the advertisement improves the finish and appearance of the building and the streetscape, and
…
The Council submitted that notwithstanding that the projecting component of the building already existed, this clause applied to the DA as the proposed signs were, relevantly, a "building" and, therefore, are incapable of being approved in a location that projects above the identified Sun Access Plane. The appropriate definition of building being that imported into the LEP from the definition in the EP&A Act as:
building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.
The sign comprises a "building" as it is part of a building or structure. Therefore, the clause applies to the signs and thereby prohibits them.
Accordingly, the signs proposed are not development that will result in any building on the Subject Site projecting higher that any part of the Sun Access Plane relevant to Subject Site.
Contrary to what was submitted by the Council this clause cannot be construed by a consideration of the merits or the particular characteristics of a building that exceeds the height provided for in the map. The Council's suggestion that the text of this clause applies even where there is no increase in height proposed, because in this case the quality of views and the relationship to heritage buildings and special character areas are relevant considerations and the relationship of height to those features, is referenced in the objectives of the clause. Those features are identified in the objectives as the reason why the clause is formulated and the heights fixed in the map are determined; they are not drafted to identify circumstances in which the provision of the control will operate. That is, it is not intended that a merit consideration of impacts would be necessary to determine if the clause is operative on a particular development. Whether the clause applies is intended to be objectively ascertained. The height of a development and the impact on matters such as the views and the relationship to heritage areas may be relevant to the consideration of the merits under s 4.15 of the EP&A Act but it does not have the consequence that it is subject to the operation of the development standard and requires a variation pursuant to cl 4.6 of the LEP to be permissible development.
Further, I accept the Applicant's submission that the definitions of words must be read subject to the context in which they are used. In this clause the reference to a building is not a reference to anything that may fall within that defined term but to a thing so defined that has the consequence of the building, objectively measured, exceeding the maximum height. In the circumstances of this case, it does not matter if the sign can be defined as a "building"; the sign does not have the consequence of the breach of the Height Control - the existing building upon which the sign is to be affixed already breaches it, such that the clause does not apply to the elements affixed to the existing built form.
Mr Davies considered that the heritage significance of the items would not be adversely affected as:
1. The particular identified significance of the heritage items did not include a notion of curtilage or setting that required signs to be excluded from the location generally or specifically for any of the listed items. Further, the area did comprise, as part of its character, illuminated rooftop signage and the backdrop of high rise commercial and hotel facilities that illuminated the area at night;
2. The sign is sufficiently distant vertically from both the Astor Apartments and the Chief Secretary's Building that the impacts on them in their visual setting, even if that were part of the heritage significance, would not be adversely affected such that it would diminish the heritage significance, as is illustrated in the figure below;
Figure 5: The northern wall of the Subject Site viewed from the rooftop communal area of the Astor Apartments.
1. The users of the Astor Apartments rooftop at night are part of a vibrant scene of the city at night and the sign/s will do no more than become part of that backdrop. The appreciation of the rooftop at night would not be diminished by the sign/s and he agreed that this was not a heritage issue but one going to the amenity of the users in a general sense.
The DCP at s 3.16.12 reinforces that the desired future character as it relates to signage is expressed, at least in part by these requirements, by the operation of s 3.16.12 of the DCP that is recited at [73] above:
The provisions of s 3.16.12(2) require that the general development standards in s 3.16 continue to apply where a component of a sign is not referred to in the signage precinct standards. As the relevant signage precinct standards make no reference to either rooftop signs or business identification signs the relevant parts of those standards as they apply to the DA also reflect an expectation of the desired future character of the precinct in so far as a sign is either a rooftop sign or a business identification sign.
As has been determined in this matter the signs proposed in the DA are business identification signs and, therefore, the provisions of s 3.16.6 apply. The general requirements indicate that signs such as those proposed in the DA are to accord with the following requirements:
3.16.6 Business identification signs and on-premises advertisements
3.16.6.1 General requirements
(1) The arrangement, individual size and aggregate area of business identification signs is to:
(a) avoid clutter to the street and building elevation; and
(b) be compatible with and not cover architectural elements of a building.
(2) Unless otherwise provided for in Section 3.16.12 (Signage precincts), all business identification signs and on-premises advertisements on land zoned Business (B1-B8) are to be located below the height of a ground floor awning, or 5m where no awning exists
…
The DCP also provides that the general requirement as to the location of business identification signs being located proximate to ground floor level may be varied in two express circumstances. The first is in accordance with s 3.16.6.2 which provides:
3.16.6.2 Signs with design excellence
(1) A business identification sign that varies the standards of this section may be approved if the consent authority is satisfied the variation provides for a sign that demonstrates design excellence and is a better outcome for the public domain and the building. In determining whether the proposed sign achieves design excellence, the consent authority is to consider the following:
(a) Does the sign enhance the character of the area, the streetscape and the architecture of the building on which the sign is located?
(b) Does the sign positively contribute to and is it consistent with the range of uses in the area and the intensity of activity in the public domain?
(c) Does the sign and building facade create interest and activity in the public domain through architectural detailing, use of materials or the provision of views into and out of the premises;
(d) Does the design quality of the sign demonstrates creativity and innovation, including through the use technology or artistic, cultural or human endeavour?
(e) Is there discernible artistic quality or a designer or artist involved?
(f) Is there a commitment and demonstrated capacity to provide high quality and well-designed content for any dynamic content signs?
(g) Does the sign decrease the cumulative visual clutter in the area and on the building?
(h) Does the sign meet objectives and general requirements for signage of this DCP and the assessment criteria under Schedule 1 of State Environmental Planning Policy 64?
(i) Is there an impact on road safety?
(j) Is there an impact on the amenity of surrounding land uses and users of the public domain?
(2) A signage strategy submitted in support of a sign proposal under 3.16.6.2 is to include an analysis of the design quality of the sign prepared by a registered architect, including a written statement addressing each of the matters in 3.16.6.2(1).
The second provision of the DCP that expressly permits a sign to be located differently than the general requirements is contained in s 3.16.6.13 that provides:
3.16.6.13 Other business identification signage
(1) Business identification signage that is not specified in this section may be considered where the signage is of high visual quality, appropriate in size, suitable in location and satisfies the objectives of this section.
In addition to the express provisions of the DCP, s 4.15(3A) of the EP&A Act requires a flexible application of the DCP controls where the development proposed meets the objectives of the provisions notwithstanding the non-conformity with the standards set.
If a rooftop business identification sign were permitted there is no express provision that relates to such a sign either in this signage precinct, or at all. However, the DCP does provide expressly for rooftop signs in the context of a building identification sign. Such provision does indicate an expression of the desired future character of the locality as it relates to the location and number of signs located on the rooftop and expresses that expectation in the following terms:
3.16.5.2 Top of building signs
…
(7) The maximum number of top of building signs per building is two, with no more than one top of building sign per elevation. Each top of building sign is to be similar in size and appearance
…
Whilst this provision does not directly relate to a business identification sign, I am satisfied from the context of the provision relating to signage in the DCP that it expresses an expectation in respect of rooftop signage generally and does not identify an expectation with respect to building identification signs alone. This provision represents the expectation that where rooftop signs are to be introduced into a locality they are limited in total number and the number of signs on each facade. This expectation of the character of signage would apply equally to a sign that is a business identification sign that is proposed to be located at the top of the building.
From the site inspection it was also observed that the existing character of the area as it is expressed by rooftop signs, is that some other rooftop signs are present on non-heritage listed properties at the rooftop. There was no evidence as to whether such signs were building identification signs or business identification signs; it is sufficient to observe that there were rooftop signs. In addition, the rooftop signs were on buildings adjacent to heritage items and in some cases - such as the Intercontinental Hotel (the Treasury Building) and the Museum of Sydney on the location of the First Parliament House site - were located on heritage items. It is noted that there is no current example of a building with more than one rooftop sign.
Having regard to all of the factors indicated above, it is apparent that the existing and desired future character of the area anticipates rooftop signage even for business identification signs provided that such signs:
1. Number no more than those identified in s 3.16.5.2(7);
2. Do not adversely affect the heritage significance of the items and the heritage values of the locality generally;
3. Do not adversely affect the amenity of the streetscape or adjoining properties including by way of impacts on views and vistas to and from adjoining premises; and
4. Display design excellence having regard to the provisions of the DCP at s 3.16.6.2 or is a sign that would be appropriate having regard to the provisions of s 3.16.6.13 of the DCP.
The first consideration that arises in a determination of whether this DA is compatible with the character of the area is the number of signs. Whilst the signs do not exceed the number of signs for each facade, when taken with the existing building identification sign the DA would exceed the expected number of signs per building by one sign. The provision of a third top of building sign would produce an outcome that is not presently characteristic of the locality nor of the anticipated density of signage provided for in the DCP. For that reason, I consider it appropriate to limit the number of top of building signs for the Subject Site to two so as to bring the number of signs into conformity with this aspect of the desired future character of the area.
The second consideration is whether the northern sign adversely affects the heritage significance of the heritage items or the heritage values of the locality generally.
In this case, the primary focus of the contentions relating to the impact on heritage significance related to the setting of the Royal Botanic Garden; the locality where the heritage items were located; and the specific items setting of the Astor Apartments, the Chief Secretary's Office and the location of the First Parliament House. The issue raised related primarily to the capacity to view the sign either from within the location of a heritage item or viewing it in conjunction with views of the heritage items.
In order to determine whether there is an adverse effect of the heritage significance of a heritage item, the heritage significance must be identified.
With respect to the Astor Apartments the heritage significance has been determined by the Council, as per the listing sheet, to be:
Statement of significance:
The Astor Flats, a thirteen storey reinforced concrete residential apartment building constructed in the Interwar Free Classical Style has a prestige Macquarie Street address with commanding views of the Harbour and Botanic Gardens. The building has high historic significance as an example of the initial development of residential apartments in Sydney as a prestige housing form. It is an important building in professional work of Esplin and Mould. The building facade and interior public spaces have high aesthetic significance as a fine and largely intact example of the style and includes many of the identifying elements such as the cornice, the large spandrel fenestration and three storey classical base and the timber and terrazzo foyer. The building has medium scientific significance for its early use of reversible steel windows and reinforced concrete frame.
In the listing sheet that provides detail of that statement of significance attention was drawn to the references to the rooftop of the item and the recommended management. These references were:
Physical description
…A classical loggia is located on the roof garden.
High Significance:
All the intact original fabric of the façade and public space including the roof garden and loggia, the ground floor foyer and upper level vestibule.
Recommended Management
General: The overall form of the Astor Flats should be retained and conserved and continue to be used as a prestige apartment building. A Conservation Plan is required prior to any proposal for new works which may impact on the exterior form and finishes or ground floor foyer and roof garden. A rooftop extension to the building could be contemplated, providing that there is no impact on the existing roof garden and loggia, and the existing view of the cornice from the street. Finishes never intended for painting should continue to be appropriately maintained. Originally painted surfaces should continue to be painted in appropriate colours, finishes and techniques.
Exterior: All remaining intact fabric on the external facades such as the rooftop loggia should be retained and conserved. Future refurbishment should attempt to recover significance by reinstating the external decorative detail and awning. Any future development should preserve the existing form, external surfaces and materials of the facade, and protect remaining intact interiors. Door and window openings should not be enlarged or closed in.
Interior: All remaining intact fabric such as the ground floor entry foyer and original doors to upper levels should be retained and conserved. Generally where interiors have been extensively remodelled and there is little of significance remaining further alterations could be acceptable provided that the facades of the building are not compromised. (Emphasis added)
With respect to the Chief Secretary's Building the heritage significance that was identified as being relevant for a consideration of this DA was outlined in the heritage expert's Joint Report as:
The (Chief Secretary's) building is one of the most significant late nineteenth century architectural works in Sydney. It embodies two of the most significant projects of Barnet and Vernon and was ranked, by contemporary accounts, with pre-eminent public works of the time such as the GPO. It remains a dominant element in the Victorian streetscapes of this part of Sydney (Statement of Significance, State Heritage Inventory).
The Conservation Management Policy 2016 for future management of the item also provided:
Policy 2.2: Any alterations to the setting of the chief secretary's building should be considered in terms of the visual effect that it may have on the appreciation of the place, especially when alterations to the setting may interfere with important views to and from the roofscape, from the Harbour, the Conservatorium of Music, Government House, the Royal Botanic Gardens and Macquarie, Phillip and Bridge streets.
As set out in the heritage experts' Joint Report, the heritage significance of the site of First Government House is identified by the States Heritage Inventory as:
First Government House is of great symbolic importance to the Australian people. The site is our most tangible link to our past and the foundation of white settlement in this country. Its use as both home and seat of authority and its siting and subsequent development determined to a large extent the pattern of growth of Sydney. This entails both the physical pattern of the streets and its cultural pattern of political, official, recreational and residential and mercantile quarters. The site provides a balance between the dominant verticality of buildings in the city. The primary site and precinct with their associated structures and grounds are significant because they constitute an archive of the development of architectural history, building technology and changing land uses in urban development over a 200 year period.
Also as set out in the Joint Report, the heritage significance of the Royal Botanic Garden as it relates to the Macquarie Street buildings has been identified by the State Heritage Inventory as:
Because of the reciprocal visual relationship between the Gardens and Domain and the historic buildings group along Macquarie Street, Hospital Road and St. Mary's Cathedral. These buildings are part of the setting of the Gardens and Domain, and the Gardens and Domain in turn form a parkland backdrop setting for these buildings, which is appreciated by their users and the public.
The particular feature of this locality represented by the heritage items is also recognised as an important contributor to the character of the locality by reference to the Locality Statement of Signage Precinct provisions recited above. Accordingly, whilst the heritage items are relevant as individual items, it is also relevant that the density of items in this locality and the contribution the items make collectively to the character of this area is also viewed/included etc in this context.
Whilst the signs will be visible from within items of heritage significance and in the vicinity of these items when viewed from public spaces, such visibility itself does not operate to diminish the heritage significance of the items. The locality (the setting) in which these items sit includes a dominant backdrop of tall high rise commercial and accommodation buildings, and the emission of ambient light from the surrounding buildings and the presence in that setting of some existing illuminated signage on buildings proximate to or (in the case of the Intercontinental Hotel which occupies the Treasury Building, and the Museum of Sydney at the site of the First Parliament House) on the site of the heritage item. The mere visibility of the sign absent some identified diminution of the heritage significance of the items or the character of the area to which these items contribute is not a sufficient reason to refuse the DA.
The visual context of these heritage items is illustrated in the figures below. These vantage points, identified as the locations from which the views of the sign will have the most impact, demonstrate the retention of views to the Chief Secretary's Building and roofscape; the retention of views to the significant facade of the Astor Apartments and the setting of the First Parliament House site. The introduction of a sign into this vista will not diminish to any sufficiently adverse extent the heritage significance of these heritage items.
Figures 6 and 7: Northern elevation of the site reviewed from the Royal Botanic Garden and the intersection/corner of Macquarie Street and Bridge Street.
Figures 8 and 9: Northern elevation of the site viewed from Macquarie Street looking south.
Figure 10: Western elevation of the site viewed from Bridge Street showing the context of the site in relation to surrounding state heritage items.
The view from the Royal Botanic Garden illustrated in the figure below also demonstrates the sign will form part of the built form backdrop and will not dominate or diminish the existing relationship from this heritage item.
Figure 11: View towards Macquarie Street buildings in 1999 (City of Sydney Archives).
The impact on the heritage significance of the Astor Apartments' roof garden was accepted by the heritage experts as being a matter related to amenity and not a diminution of the heritage significance of the item. Accordingly, this factor will be considered in the town planning context.
The third consideration relates to the impacts on the amenity of the adjoining properties and views and vistas. The primary location from which there was said to be a direct amenity impact was from the roof terrace at the Astor Apartments. The amenity impacts identified on the users of the rooftop area of the Astor Apartments focussed on the illumination of the sign at night and what was said to be the overbearing nature such sign would have on the amenity of the users of the rooftop.
An inspection of the rooftop of the Astor Apartments identified that the loggia and outdoor area had three significant view directions: the north towards the harbour; the west towards the Royal Botanic Garden, Government House and the Conservatorium of Music; and the west over the roof scape of the Chief Secretary's Building towards the buildings of the CBD. The only direction where an expansive outlook was constrained was to the south where the majority of the outlook was obscured by the existing building on the Subject Site. Smaller outlook opportunities existed past the building from limited parts of the rooftop at either end of the Subject Site, but such views were not affording a particularly attractive or iconic view when compared to those at the other three compass points. The proposed sign to the north of the Subject Site could be viewed from locations within the outdoor area if a viewer turned their back to the view and looked to the south. At this point the sign could be visible, particularly when illuminated, at a location some twenty metres above the floor level of the outdoor area and above two commercial storeys on the Subject Site that have windows on that facade. This is illustrated in Figure 5 above.
The joint evidence of the lighting experts is that when illuminated the signs will not produce a light spill that would affect the amenity of the occupants of the Astor Apartments. This does not mean that the sign will not be able to be seen, but that the illumination from the sign will not appreciably illuminate the rooftop areas or internal areas of the Astor Apartments.
The Astor Apartments is exclusively residential on the floors above ground floor. This residential use is largely surrounded by commercial and accommodation uses. The interface of these non-residential uses has the consequence that the ambient lighting of the area at night is more constant and to a higher degree than if the area were primarily residential. The introduction of a further light source at a vertical distance of 20m from the floor level of the viewing location when the direction of viewing is not a primary or even an attractive view does not diminish the amenity of the users of the common open space on the roof of the apartment such as would warrant refusal of the application. Whilst the eye may be drawn to the sign from time to time, the consequence of that visibility is that it forms part of the patchwork of night lighting and activities that draw the eye in this vibrant and cosmopolitan locality in which the users of this space reside, such that it will not adversely affect the amenity of the occupants so as to warrant refusal of the DA.
There was no view to the south from within the loggia, however, expansive views to the east and north were available within the loggia. There was minor viewing opportunity of the north facing sign from within the loggia if a person stood pressed against the glass wall and looked up through the glass roofed portion of the loggia but it was otherwise obscured from within this structure. This impact is minor and has no real impact on the amenity of the users of the loggia.
The fourth characteristic of the desired future character is that the sign should display design excellence or would be a sign of the type anticipated by s 3.16.6.13. For the following reasons I find that the northern sign displays both design excellence under the DCP and would also be a sign to which the provisions of s 3.16.6.13 would apply:
1. Section 3.16.6.2 of the DCP permits variation of the standards if the consent authority is satisfied of the variation produces an outcome that demonstrates design excellence and is a better outcome for the public domain and the building. In this respect, the matters identified in the section are to be considered in determining whether design excellence has been achieved. The section requires those factors to be considered but it does not require all of those factors to be present. As with all applications different considerations will have a different bearing or weight in the determination of whether design excellence is displayed. In this case, after considering the factors enumerated, it is considered that the location of the proposed northern sign displays design excellence. Particular to this proposal, the following factors were considered to be important in the determination of design excellence:
1. The location of the sign above the parapet provides a vertical physical separation from the facades and roof scapes of the adjoining heritage items. Whilst the sign may be visible in the vista that includes such heritage buildings, its location, design, or illumination method is such that it relates appropriate to its location and the setting of heritage items;
2. When viewed from a distance the sign is lower than the backdrop of adjoining high-rise buildings such that it is not prominent in the skyline but at a mid-level height. As illustrated in Figures 6 - 9, which are the viewing locations from which the sign will be most prominent in the skyline, even from these locations the prominence of the sign is ameliorated by the surrounding built form context;
3. It is in a location where top of building signs are present and acceptable;
4. The signs demonstrates innovative sign design and management appropriate with the location in which the sign is proposed by: the design, manner of lighting, controls as to time of illumination and level of illumination;
5. The sign location, design and proposed management of illumination ensure that there are no unacceptable adverse impacts on the amenity of the adjoining building or the public domain, including those buildings and areas of heritage significance;
6. The existing density of signs in the locality at the rooftop are not creating visual clutter and the addition of the proposed signs would not produce such a result. The signs by way of location and means of illumination are sufficiently harmonious with the existing character of the area as represented by signage that the character of the area will remain one with signs. With respect to signs at the rooftop level there is not by the number or design features of those signs visual clutter or unacceptable visual clutter with the addition of the northern sign;
7. The sign meets the general requirements for signage in the DCP. These general requirements for signage are set out in s 3.16.3. The Council submitted that requirements (1), (4), (5) and (6) were relevant to this DA. For the reasons outlined in this paragraph, the sign is compatible with the architecture and other features of the building and streetscape; it will not detract from the visual quality of any heritage item or residential area; and it does not create visual clutter; and the signs do allow the main facade to be free of clutter and generally free of signage. Therefore, I am satisfied that it meets the requirements (1), (4), (5) and (6) of the general requirements.
1. Section 3.16.6.13 of the DCP provides that business identification signage that is not specified in the relevant section of the DCP may be considered where the signage is: of high visual quality; appropriate in size; suitable in location; and satisfies the objectives of that section of the DCP (which are contained in s 3.16 on page 3.16-2 of the DCP). For the reasons already canvassed above, the sign is considered to be of high visual quality and appropriate in size and location. The objectives of the signage provisions of the DCP are additionally met both for those reasons.
For all of the reasons outlined above, I am satisfied that the subject DA as it relates only to the northern sign satisfies the assessment criteria in schedule 1 of SEPP 64 as it relates to compatibility with the existing or desired future character of the area in which it is proposed to be located.
This notion of signs having a positive contribution where appropriately designed and located is reinforced by the following objects of DCP s 3.16:
Objectives
(1) To recognise the City of Sydney council area as a globally competitive city with a strong retail sector and promote innovative, unique and creative signs that support retailers and show design excellence.
(2) To recognise that well designed and located signs can have a positive effect on the economy of the City of Sydney council area.
(3) To deliver and maintain a high quality public domain.
(4) To promote signage that demonstrates design excellence and contributes positively to the appearance and significant characteristics of buildings, streetscapes and the city skyline.
In this context, for the reasons outlined at [112] above, I find that the northern sign does improve the public domain as it is innovative and shows design excellence; it is well designed and located; and it will contribute positively to the city skyline.
For all of those reasons, I am satisfied that having regard to the provisions of cl 6.21 and the matters in cl 6.21(4) that the northern sign displays design excellence.
As identified at [22] above, the Applicant invited the dismissal of the Modification Application in the event that a sign or signs were approved in the determination of the DA. As it is determined that the northern sign should be approved there is no utility in determining the Modification Application and, as registered by the Applicant, it will be dismissed.