The meaning and application of provisions contained in Part B9 and Part C9 of the NSDCP are disputed. Part B9 is headed 'Advertising and signage'. Part C9 is headed 'Lavender Bay Planning Area'.
The Applicant draws my attention to Part A1.7.3 of the NSDCP which states:
"1.7.3 Part C - Area Character Statements
The LGA comprises a number of neighbourhoods which display distinct characteristics. This Part of the DCP identifies the desired future outcomes for each of these neighbourhoods. In addition, this Part of the DCP contains additional provisions which relate to development within these neighbourhoods. The provisions within this Part take precedence over the provisions within Part B of the DCP."
Mr Duggan considers the provisions of Part B9 of the NSDCP to be limited in their application as the application before the Court is not a development application, but is an application to modify a consent and Part B9.1.2 relevantly provides:
"This Section of the DCP applies to all development applications incorporating signage that can be seen from a public place such as a street, waterway or public reserve…" (emphasis added)
Part B9.1.3 confirms that the provisions of the Part should be read in conjunction with Part C, as follows:
"Where relevant, this Section of the DCP should be read in conjunction with the following Sections of the DCP:
(a) Part A: Section 3 - Submitting an Application;
(b) Part C: Character Area Statements"
Part B9.2 sets out an 'Advertising Design Analysis' and provides, relevantly:
"9.2 ADVERTISING DESIGN ANALYSIS
The following advertising design analysis aims to provide guidance on desirable forms of advertising in North Sydney for different zones and areas. Advertising design should reinforce the character of advertising described in this analysis.
…"
Guidance on desirable forms of advertising for the Milsons Point Town Centre is at Part B9.2.2(a), and is in the following terms:
"9.2.2 B4 - Mixed Use Zone (a) Milson's Point
Milsons Point has a diverse range of land uses including residential, commercial and retail that are mostly located in multi storey buildings that have a prominent location on the foreshores of Sydney Harbour. Signage in Milsons Point is a mixture of small business identification signs (fascia, under awning, wall, projecting wall signs). There are some larger wall and roof signs on building elevations that are quite visible from Sydney Harbour. To enhance the views of North Sydney from Sydney Harbour and the Bradfield Highway, future signage should be limited to small scale business and/or building identification signs at lower levels where commercial development is permitted under NSLEP 2013."
This is distinct from the guidance provided in respect of Crows Nest in Part B9.2.2(b) which provides, relevantly:
"For this reason, further large and/or roof signs are discouraged in the Crows Nest Area…" (emphasis added)
Guidance in respect of St Leonards is in similar terms, at Part B9.2.2(c):
"…There are a number of large existing roof and wall signs that currently dominate the skyline so any additional signage of this type should be avoided. Signage in this area should be limited to small scale business identification advertisements at ground level (under awning, fascia, top hamper) and no new larger illuminated wall and roof signs at upper levels." (Emphasis added)
Mr Duggan is of the view that, firstly, the introduction at Part B9.2 makes clear its purpose relates to advertising, and not to other forms of signage such building identification signs, and secondly reference in Part B9.2.2(a) to 'some larger wall and roof signs on building elevations' is a reference to the subject signs which are, as the provision is worded, accepted to be 'quite visible' from Sydney Harbour and are not the subject of the limitations placed on location of 'future signage'.
This is not consistent with a policy of removal of signs as suggested by Mr Moir in the Milsons Point Town Centre, according to the Applicant.
However, Mr Donovan considers the final sentence of Part B9.2.2(a) at [113] to be a statement to the effect that future signage should be limited to small scale business and/or building identification signs at lower levels (emphasis added).
This suggests to Mr Donovan that while the description at Part B9.2.2(a) follows the introduction re-produced at [110], it must have broader application than to advertising alone and to all future signage.
If I understand Mr To's submission correctly, it is argued that the subject signs would not exist after the date due for the expiry of the consent but for the modification sought by the Applicant.
If the appeal is dismissed, the signs will be removed. This is in contrast to the alternative, where, in the event the appeal is upheld, the signage may then be considered, in effect, future signage that must, by operation of Part B92.2(a) be 'limited to small scale business and/or building identification signs at lower levels'.
However, the subject signs are a visible element in the Milsons Point Town Centre today. In his oral evidence, Mr Donovan acknowledges that the signs are a part of the existing character. The application seeks the continuation of the signs, unamended, in the location and with the colour, format and illumination of today.
While the Respondent submits that the signs will, if the appeal is upheld, exist in the future, I do not understand the provision at Part B9.2.2(a) to consider something that exists in the future to be 'future signage' anymore than the building on which the signs are affixed, standing sometime in the future, to be considered a 'future building'.
For the following reasons, I consider the guidance at Part B9.2.2(a) to be of limited assistance to the Respondent's case:
1. Firstly, the guidance at Part A1.7.3 of the NSDCP is that the provisions of Part B are subordinate to those in Part C of the NSDCP.
2. Secondly, Part B9.2 of the NSDCP appears to apply its focus such that the "…advertising design analysis aims to provide guidance on desirable forms of advertising in North Sydney for different zones and areas."
3. Thirdly, I accept that a plain reading of Part B9.2.2(a) suggests that the subject signs fit the description of being "…larger wall and roof signs on building elevations that are quite visible from Sydney Harbour" and there is no suggestion in the phrasing of the provision that would indicate a preference for such signs to be discouraged, as is the case in Crows Nest (Part B9.2.2(b)) or avoided, as is the case in St Leonards (Part B9.2.2(c)).
4. Fourthly, as stated earlier, I do not consider the subject signs, if the appeal is upheld, to constitute 'future signage' that is sought to be limited by the final sentence in Part B9.2.2(a).
I therefore afford the provisions of Part B9.2 less weight and I conclude that while it would not be appropriate to set them aside, it is appropriate to apply the provisions of Part B9.2 flexibly.
[2]
The signs do not adversely impact upon the 'perceived experience' of the existing character of the area
Mr To submits that the residents of apartments in close proximity to the south-facing sign cannot avoid perceiving the illumination resulting from the sign and, likewise, an absence of those signs would also have an impact on the residents perception of character of the area.
Those apartments said by the Respondent to be affected by the illumination are those shown in the street view captured in November 2019 from Google and enclosed in Exhibit 6 and re-produced below. The subject site is circled red.
The Respondent does not rely upon particular submissions from particular residents in particular buildings located in the area to suggest that the subject signs result in adverse amenity impacts on apartments.
Instead, the signs are said to adversely impact upon the character of the area by virtue of the illumination incurring into west facing apartments, and the absence of any other illuminated roof top signs in the Milsons Point Town Centre.
Ms Morrish considers the perception, or visibility, of the southern sign from nearby apartments to be more a question of amenity, and not character for the reasons stated at [102].
In my view, it is not possible to assess the visual impact of the signs on the local character when viewed from unspecified apartments, other than to observe that the Court was not provided with any evidence from residents in surrounding buildings of such an impact.
The Court is being invited by the Respondent to stand in the shoes of residents unknown, at locations unspecified and to consider what perceptions those residents may have of the southern sign in respect of character of the local area.
I cannot make a finding on the particular matter advanced by the Respondent other than to note the physical separation evident in the image at [125], and the orientation of the buildings which are at a 90-degree angle to each other as identified by Ms Morrish. On these two grounds alone I consider the likely impact to be significantly ameliorated, and accept Ms Morrish's view that to the extent the sign imposes itself in any way, it would be more correctly characterised as an impact on the amenity of those residents.
I also accept the oral evidence of Mr Duggan that the signs are generally not evident from the street as shown in the view in the image at [125] which limits the impact of the sign on the local area when viewed from the public domain in the Milsons Point Town Centre.
[3]
The signs are not inconsistent with the desired future character of the area
The desired future character of the Milsons Point Town Centre and the desired built form are set out at Part C of the NSDCP at Part C9.1.2 and Part C 9.1.3 respectively in the following relevant terms:
"9.1.2 Desired Future Character Diversity
P1 Medium to high-rise mixed residential and commercial development, built boundary to boundary, with setbacks at laneways, above podium and to public spaces.
P2 Variety of different sized non-residential spaces and land uses which serve the local needs of residents (including convenience stores, cafes, medical centres etc).
P3 Development for residential accommodation should be in accordance with Council's Residential Development Strategy, with limited growth envisaged for the area.
P4 Ground floors of mixed use development to operate land uses that promote pedestrian activity.
P5 Existing heritage items shall be protected and retained where practical.
P6 Provide a balance between the working and resident populations of the town centre, to ensure an active environment throughout the day.
P7 Where existing commercial buildings are to be refurbished, retention of the existing level of commercial floor space is encouraged.
….
9.1.3 Desired Built Form
…
Skyline
P10 Ancillary equipment, plant rooms are not visible from Sydney Harbour.
…"
The Applicant submits that, to the extent cl 3(1)(a) applies, the objective does not contain a reference to the desired future character but to the desired amenity and a local character that exists.
Furthermore, as there is no inconsistency between the proposal and the provisions of Part C9.1.2 and Part C9.1.3 of the NSDCP, the subject signs are consistent with the desired future character of the area.
The planning experts agree that Parts C9.1.2 and C9.1.3 are silent on the question of signage.
The Applicant submits, and Mr Donovan accepts, that Part C9.12 of the NSDCP encourages the retention of commercial uses in the Milson Point Town Centre for which business and building identification signs may be sought.
However, while Mr Donovan also accepts that business or building identification signs are permitted in the B4 zone and are likely to form a part of the future character of the area, the location of those signs is, according to Mr Donovan, limited by the provisions at Part B9.2.2(a).
I accept that there is no inconsistency apparent between the subject signs and the desired future character as set out in the performance criteria under Part C9.1.2. To the extent that the performance criteria are silent on the signage, I consider Part B9.2.2(a) a helpful reference, within certain limits.
For the reasons stated at [123], I consider it appropriate to apply the provisions of Part B9.2.2(a) flexibly, and which I read as implying a certain tolerance of the subject signs in respect of the existing character of the area.
The subject signs are consistent, in my view, with the objectives of Part B9. In particular:
"O2 does not detract from significant views, vistas and sensitive streetscapes;
…
O5 minimises the potential for adverse impacts on sky glow from the illumination of signs;"
In respect of Objective O2, the subject signs appear to be impliedly an accepted part of the character of the Milsons Point Town Centre when viewed from Sydney Harbour and so can be said to not detract from the significant views of the area.
In respect of Objective O5, I note the submission prepared by Mr Johnny Chan, a resident of 55 Lavender Street, states that the signage will incur more light pollution (Exhibit 2, folio 110). However, there is no proposal to modify the level of illumination and there is no contention to the effect that the subject signs create an adverse impact on sky glow in the current form.
The Respondent's case includes the assertion that the character of Milsons Point Town Centre has changed since 2005. This assertion is supported by public submissions made in response to the initial notification.
In particular, Mr Laurence Mather, resident of 102 Alfred Street, submits that the "character of the area has changed irrevocably to residential..." (Exhibit 2, folio 95).
While this may be the observation of some residents in the area, it is not reflected in the future character desired by the objectives of the B4 zone, which is:
• To provide a mixture of compatible land uses.
• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
• To create interesting and vibrant mixed use centres with safe, high quality urban environments with residential amenity.
• To maintain existing commercial space and allow for residential development in mixed use buildings, with non-residential uses concentrated on the lower levels and residential uses predominantly on the higher levels.
Likewise the performance criteria evident in Part B9.1.2 supports a future for the area that comprises "Medium to high-rise mixed residential and commercial development…" (P1), a "variety of different sized non-residential spaces and land uses which serve the local needs of residents (including convenience stores, cafes, medical centres etc)." (P2), a "balance between the working and resident populations of the town centre…" (P6), and where "retention of the existing level of commercial floor space is encouraged." (P7)
Relatedly then, I consider the modification application consistent with the existing and desired future character and not, of itself, objectionable. I also consider the Respondent's argument that the subject signs, by virtue of their uniqueness in the area, are unlikely to set a precedent. The circumstances of this matter centre on existing signs that were, at the time of consent, open to an extension of the time limit initially applied in Condition A2.
[4]
The wording of Condition A2
The Court was not assisted by either party in the form of words proposed for a modified Condition A2.
The Respondent advised that draft without prejudice conditions had not been prepared as the appeal is in respect of one condition.
The Applicant does not propose text in the event that the Court upholds the appeal.
I am mindful of the imminent expiry of the time limitation contained in the current Condition A2.
Subject to providing an opportunity for the parties to confer on the appropriate wording for such conditions and to hear from the parties if required, the condition could be as follows:
"This consent shall cease to be in force on the expiration of 30 years after the date on which the consent becomes effective and operate in accordance with Section 8.13 of the Environmental Planning and Assessment Act 1979. Should the owner of the site wish to extend this period, a new development application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.
(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour)."
For the reasons set out above, it is appropriate to modify the consent, subject to the conditions that are agreed between the parties. However, the parties ought to have the opportunity to discuss, and agree on, the terms of the modified Condition A2.
[5]
Directions
The Court directs that:
1. The parties are to confer to finalise the appropriate wording for the conditions of consent resulting from the findings of the Court;
2. If an agreement is reached on the wording of the condition referred to in (1) above, the final conditions of consent are to be filed by the Council by 12pm on 17 August 2020;
3. If no such agreement is reached, the matter is listed for mention before me at 4.15pm on 18 August 2020;
4. The parties have liberty to re-list on two days' notice if there is any dispute about the condition of consent;
5. If directions (1) and (2) are satisfied, I will vacate the mention on 18 August 2020; and
6. The exhibits are returned, except for Exhibits B and 5.
[6]
Addendum on 25 August 2020
As the parties were unable to reach agreement on the wording of Condition A2, the matter was listed for short submissions commencing at 4.15pm on 18 August 2020 in accordance with the Court's directions at [155(3)] and was conducted via teleconference.
At 4.04pm on the day of the mention, by consent of the parties the Applicant provided the Court with a document by email containing Condition A2 as initially proposed by the Court at [153], as proposed by the Applicant, and as proposed by the Respondent.
The Applicant's proposed wording is as follows:
"This consent shall cease to be in force on the expiration of 15 years after the date that the orders made by the Land and Environment Court in proceedings no. 2020/71383 take effect, being 26 August 2020. Should the owner of the site wish to extend this period, an application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.
(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour)."
The Respondent's proposed wording is as follows:
"This consent shall cease to be in force on 26 August 2035. Upon such date the signs and associated structures shall be removed.
(Reason: To protect the amenity of the surrounding area, the character of the Lavender Bay and the visual qualities of Sydney Harbour)"
At the commencement of the mention, Ms Leung, who initially appeared for the Respondent, sought an adjournment in order for the Respondent to prepare written submissions addressing the matter in dispute which she understood to be the purpose of the mention.
Ms Hemmings, counsel for the Applicant, opposed an adjournment on the basis that the Applicant had prepared for the mention which it understood was for the purpose of resolving the matter.
Ms Leung pressed for a ten minute adjournment in order to seek instructions. While I considered the purpose of the mention to be clear from a plain reading of the directions, I expressed a desire to dispose of the proceedings in respect of Condition A2. To this end, I granted a five minute adjournment, after which Mr Drury appeared for the Respondent.
The Applicant submits to me that the Court should decline the Council's preferred wording on the following grounds:
1. Firstly, despite the Court ordering the Applicant to do so, the Respondent did not file draft without prejudice conditions of consent on 8 April 2020. Furthermore, the Respondent advised the Applicant on 20 June 2020 that it did not intend to do so. This is consistent with the Respondent's written and oral submissions at the hearing.
2. Had the Respondent filed the wording as now proposed, the Applicant would have had the opportunity to seek, by a Notice to Produce, those conditions prepared by the Council in like cases as well as policies of Council related to the removal of signage.
3. Additionally, the Applicant could have called evidence on the implications of removing the sign, and the support structure as is now proposed. As the form of the proposed condition was not in evidence, experts were not directed to address the potential impacts of removing the sign and its support structure. What expert evidence was given, by Ms Morrish, was to the effect that even if the signs were removed, it is likely that some light or illumination would remain, such is the integration between sign and building.
4. Secondly, the modification application is limited to an extension to the time-limited condition of consent. Yet the Respondent's proposed condition seeks the removal of the sign and associated structure which cannot be described as an essential feature or element of the modification application. Furthermore, the Respondent proposes to change the reason for the imposition of the condition from the reason given at the time of the 2006 consent.
The Respondent's position is that the Applicant opted to lodge a modification application for a more limited consent in preference to a new development application and so the consent granted by the Court is limited accordingly.
Should the Applicant, or its successors in title, seek to lodge a modification application at some time in the future, the form of words proposed by the Respondent does not limit the Applicant's rights in that regard.
I have sympathy for the Applicant's submission that it should not be prejudiced by the Council's decision to not comply with the orders made by the Court on 8 April 2020 to file draft 'without prejudice' conditions of consent 14 days before the hearing, in response to which the Applicant was ordered to provide draft conditions 7 days before the hearing.
However, the Applicant did not, absent the Respondent's draft conditions, file its own draft conditions. In particular, the Applicant did not propose wording for the condition the subject of the modification application until directed to do so by the Court at [155].
The Applicant submits that it is logical for my consideration at [82]-[84] to extend to a finding that a condition requiring the removal of 'associated structures' at the expiration of the time-limited condition is outside of power as the modification application did not propose any works to the form of the sign, or its means of support.
I consider there to be a close nexus between the sign and the structure whose sole purpose is to effect the display of the sign the subject of the modification application. I also do not think it unreasonable to expect that, should a further application to extend the time for the display of the sign not be made, or for whatever reason the owner of the signage lot elects to remove the sign, the 'associated structures' would also be removed. Such is the nature of such signs and their means of support.
That said, while it may be that the removal of 'associated structures', and presumably the remediation of what remains once the 'associated structures' are removed, is a straightforward task, there is no certainty of this as the precise nature and scope of what is meant by the term 'associated structures' was not the subject of evidence.
The Court was not presented with evidence as to whether the 'associated structures' referred to in the Respondent's preferred wording of the condition is in the form of brackets, or what is commonly referred to as 'secondary steelwork', or some other form of support that may be independent of, or integrated with, the building façade.
To what extent, if any, the removal of the 'associated structures' would impact the existing building on the site is not in evidence. In my view, for the Court to require the removal of the 'associated structures' by way of a condition of consent, without the scope or extent of the 'associated structures' being particularised risks creating in an order of the Court an ambiguity not dissimilar to the sort before Robson J in Benmill.
In respect of the change proposed by the Respondent as to the reason for the imposition of the condition, I do not consider it unreasonable that the Respondent would seek to amend the reason for the proposed condition originally drafted in September 2006. I also note that the weight to be afforded to the reason for the imposition of the condition rises no higher than to assist in understanding Council's intent at the time of drafting.
As I find the wording of the Respondent's preferred condition likely to give rise to ambiguity, I accept and adopt the Applicant's preferred wording of Condition A2.
[7]
Orders
The Court orders that:
1. The appeal is upheld.
2. The application to modify Development Consent No. 92/05 is approved, subject to the wording of Condition A2 that is now modified to read:
"This consent shall cease to be in force on the expiration of 15 years after the date that the orders made by the Land and Environment Court in proceedings no. 2020/71383 take effect, being 26 August 2020. Should the owner of the site wish to extend this period, an application shall be lodged with Council prior to the cessation of the current consent. This requirement shall be included in any further lease arrangement for the new signage lot.
(Reason: To regulate any changes to illumination and protect the amenity of the surrounding area and the visual qualities of the harbour)."
1. All Exhibits are returned, except for Exhibits B and 5.
[8]
Amendments
25 August 2020 - See Addendum at [156]-[175].
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: 25 August 2020
Parties
Applicant/Plaintiff:
LDC Opco Holding Company Pty Limited
Respondent/Defendant:
North Sydney Council
Cases Cited (3)
The development the subject of the modification application
The parties agree that the consideration of the development the subject of the modification application starts with the original consent granted in August 2005 (DA92/05 Consent).
The DA92/05 Consent was for two illuminated 'building identification signs'. As such, the characterisation conforms to a development defined in SEPP 64.
The DA92/05 Consent was then modified in September 2006, at which time the development the subject of the modification application was once again characterised as 'building identification signs'.
According to the Applicant, I must not fall into error by seeking to freshly characterise the development for which consent was granted in DA92/05 as other than that characterised in the determination made at the time.
This is relevant as the Respondent considers the signage to 'fall into the character of general advertising', and so not answer the description of a building identification sign.
In support of which, Mr Donovan relies on images annexed to the joint report (Exhibit 3, Appendix 1, pp 3-12) that show advertisements placed in newspapers for what may be described as market investment services displaying the Platinum logo and name.
The Respondent submits that there is an ambiguity in the DA92/05 consent that must be resolved. The ambiguity arises as the DA92/05 consent is granted to a 'building identification sign', yet the consent is conditioned to expire after ten years, which is consistent with the terms of cl 21 of SEPP 64 applicable to roof or sky advertisements. Furthermore, the name and logo of 'Platinum' bears no connection to the building that is otherwise known as 'Latitude' or 'Latitude Apartments'.
In light of the ambiguity, the modification application can only be understood from reading the consent as a whole, including the conditions of consent at Condition A2, which applies a time-limitation that is now the focus of the appeal.
When the consent to which the modification applies is read as a whole, the sign in question must be considered to be 'advertising' to which Part 3 of SEPP 64 applies because:
1. The time-bound conditions of consent, at Condition A2, are consistent with provisions found in Part 3 of SEPP 64 that only apply to advertising.
2. Part 3 of SEPP 64, from which Condition A2 evidently springs by virtue of its limitation, does not apply to building identification signs, but to advertisements including roof or sky advertisements.
3. The sign does not have a connection to, or a relationship with the building in a manner that is consistent with the definition of a building identification sign. The sign reads 'Platinum', and yet the building is known either as 'Latitude' or 'Latitude Apartments' with no association to Platinum.
Even if I find that the subject sign is a building identification sign and so does not fall within the definition of 'advertising', the Respondent's submission is, in effect that:
1. Firstly, while cl 8 does not directly apply to a modification application, the operation of s 4.55(3) of the EPA Act requires the Court to consider such matters as are relevant in s 4.15(1) of the EPA Act.
2. Matters that are relevant include, at s 4.15(1)(a)(i), environmental planning instruments such as SEPP 64.
3. Given the particular subject matter of the application, consistency with the aims and objectives of SEPP 64, and with the assessment criteria in Schedule 1 is required, as is subcl 8(a) and (b).
4. In the alternative, the Respondent submits that the Court is not constrained to only those considerations that are mandatory, but may consider any issues it considers relevant which would encompass the provisions of cl 8.
However, Mr Hemmings SC, counsel for the Applicant, submits that unlike the circumstances in Benmill Pty Ltd v North Sydney Council (No 2) [2020] NSWLEC 44 (Benmill), where Robson J held that ambiguity had to be found before recourse can be had to context, there is no ambiguity in the terms on which consent was granted in this case.
Is the application substantially the same development?
In considering this appeal, the Court exercises the functions of the Council in determining the modification application pursuant to s 4.55(2) of the EPA Act. Subsection 4.55(2) provides as follows:
(2) Other modifications
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
The exercise of the power in subs 4.55(2) requires the Court to be first satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted".
If the Court is not satisfied, then there is no power to modify the consent, regardless of whether or not the application might be worthy of approval on its merits.
Upon reaching satisfaction that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted" and that the other matters in subs 4.55(2) are satisfied, subs (3) provides that:
In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
The Applicant relies on McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council Doering v Pittwater Council 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 (1643 Pittwater Road) at [51], to the effect that s 4.55 of the EPA Act constrains the Court's power by limiting the discretion that may be exercised to those matters raised for consideration in the modification application.
The practical effect of which is that a modification application in respect of a time-limiting condition cannot invite the Court to re-characterise the original approval granted in respect of the building identification sign to that of advertising or, adopting the phrasing of his Honour in 1643 Pittwater Road quoting Mason P, it is not an opportunity to repent of an earlier decision.
Instead, I should be guided by Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85, at [25], with particular reference to the essential features and elements of the development, and not to the context or the circumstances of the consent, nor the conditions of consent.
According to the Applicant, a comparison of the features and elements of the originally approved and modified development must conclude the application is for a development that is substantially the same development for which consent was originally granted. Of particular relevance here, the Applicant does not seek development consent for a new use, or works associated with the sign.
Yet the Respondent submits that it is precisely the time-limitation, or 'temporality', that is the essential feature or element of this development and that is now sought to be modified by the Applicant. The modification seeks to modify the essential feature of the sign, being the duration or time permitted for its display.
However appealing the Respondent's argument may initially be that the sign is an advertisement, I consider the nature of the sign to have been settled by the Council in March 2005 when it defined the sign as a building identification sign in its determination of DA92/05.
The evidence submitted to me in this matter is not precise on the timing or means by which the sign changed from the original wording 'SHARP' to 'Platinum'. The Respondent's written submissions, at par 7, states that "In about May 2016, the content of the signs were changed…".
I have not been provided with any evidence of consent for a change of use, or a change in the definition set out in SEPP 64 that would lead me to conclude that the sign is a different type than that for which Council gave its consent in DA92/05.
As I do not find the subject sign to be a roof or sky advertisement, I must also conclude that cll 17 and 18 of SEPP 64 do not apply.
While I do not consider the sign to be other than the designation assigned by the Council in DA92/05 and again in 2006, the Respondent's argument that time, or temporality, is an essential feature or element in the development has merit, in my view.
From the outset, Condition A2 prescribes a period of time in which the display of the sign is permitted. It is a kind of 'sunset clause', after which time the consent lapses unless an extension is sought in the form of a new development application lodged with the Council.
That said, other than an extension of the time-limit applicable to the consent, the Applicant does not seek to further modify aspects of the sign in respect of time. It does not, for instance, seek to extend the hours of operation that would have the potential to impose additional adverse impacts.
The Applicant now seeks, as it has once before, to extend the period of time set out in Condition A2, not in a new development application, but in the form of a modification application. The parties are agreed, as am I, that the wording of a condition cannot displace the Applicant's rights to seek a modification in accordance with s 4.55 of the EPA Act.
While I consider the time-limitation to be an essential feature or element in the development, the Applicant does not seek to modify those aspects of time that would modify the development itself. Instead, the Applicant seeks to modify an aspect of the condition that would, in effect, permit the continuation of the development in its current form.
No change of hours of operation are proposed. No change in size, materials, colour, orientation, level of illumination or media is proposed.
For the reasons above, I am therefore satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified.
In arriving at this state of satisfaction, I have considered the Respondent's invitation to consider the original consent as a whole, including the terms of Condition A2. Unlike Benmill, where the ambiguity arose as the sign for which consent had been granted was characterised in the consent as a type of sign that was not defined in SEPP 64, the subject sign in this matter was defined with some care by the Council, and entirely consistent with defined terms set out in SEPP 64.
Even if I were to accept the Respondent's invitation to consider the circumstances of the consent, I note the care taken by Council in characterising the sign at the time of the original consent, and again prior to the consent granted to the modification.
The evidence is that the Council was deliberate in defining the sign as a building identification sign (but for an inconsequential error in referring to Part 3 as Section 3).
1. Firstly, reference is made in a notation that appears on the first page of Council's decision in respect of DA92/05 dated 22 August 2005 to the building identification sign, the subject of the application, being "as defined under SEPP No.64 - Advertising and Signage" (Exhibit 2, Tab 1B).
2. Secondly, in a report prepared for Council in respect of DA92/05/3 dated 19 September 2006 in which the sign, being a building identification sign, is distinguished from advertising in the following manner:
"as separate from a roof or sky advertisement, as the structures were not considered to be advertisements and therefore were considered solely under Schedule 1 of SEPP No.64. It is important that this is noted, as under Section 3, "roof or sky advertisements" are limited to a consent period of 10 years. This limitation does not apply in this instance." (Exhibit 2, folio 24).
1. The report reiterates the point, on folio 25, in the following terms:
"…as previously discussed in this report, the original consent for the signage recognised it as being a 'building identification sign' and therefore not subject to assessment under Section 3 of SEPP No.64. Therefore the limitation of "roof or sky advertisements" to consent duration of 10 years is not applicable in this instance…"
I note that the Respondent considered application DA92/05/3, seeking to modify a condition to extend the time limitation, as does the application now before the Court, to constitute development that was substantially the same development.
It is also not without relevance that the Council consented to DA92/05/3, modifying the terms of the condition to grant a time limitation of 15 years and not 10 years as originally approved.
Relatedly, as the application before the Court is not a development application seeking development consent, the provisions of cl 8 of SEPP 64 do not apply and so cannot be regarded as mandatory considerations in respect of the subject signs.
However, the Respondent invites me to regard those provisions contained in cl 8 of the SEPP 64 to be matters that assist the Court in an assessment of contention 2.
I accept that the provisions of SEPP 64 clearly fall within the scope of s 4.15(1)(a)(i) of the EPA Act for consideration in this case. However, a plain reading of cl 8 of SEPP 64 would appear to preclude its provisions from being considered a matter of relevance as the application before the Court is not seeking development consent, but consent to modify a condition of consent.
That said, I have also considered whether certain provisions of cl 8 of SEPP 64 would assist me in providing a framework by which to consider Contention 2 as it appears in Exhibit 1. I have concluded there is no utility in adopting the provisions of cl 8 in the manner suggested by the Respondent. This is because subcl 8(a) calls up the objectives of SEPP 64 at cl 3(1)(a) to which I must have regard in any event, and as the particular aspects of Schedule 1 of SEPP 64, at subcl 8(b) is in virtually identical terms to the contention as drafted.