Liverpool City Council v Palerma Pty Ltd

APPLICANT: Mr M Wright, barrister SOLICITORS Marsdens Law Group LEGAL REPRESENTATIVES: RESPONDENT: Mr E Parilo (director of respondent) SOLICITORS N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT INTRODUCTION 1 HIS HONOUR: These Class 4 proceedings were commenced by Liverpool City Council against Palerma Pty Ltd on 15 August 2007 seeking declarations and injunctions relating to unauthorised signage and advertising structures erected on Palerma's land at Lot 11 in DP 881728 (63) Orange Grove Road, Liverpool ("the land"). The proceedings are undefended although Mr E Parilo, a director of the respondent, has appeared on its behalf this morning. I accept the applicant's submissions.

2 The Property adjoins the road reserve of Orange Grove Road, formerly the Cumberland Highway.

3 Orange Grove Road is a classified road under the provisions of the Roads Act 1993.

4 Erected on the land are three unauthorised advertising structures displaying five signs and sixteen flagpoles from which coloured banners or flags are displayed ("the signage and advertising structures").

5 The signage and advertising structures have been erected without development consent where such consent is required to be obtained from the council. Palerma is therefore In breach of s 76A(1)(a) of the Environmental Planning and Assessment Act ("EPA Act").

6 On 26 October 2007, the Registrar directed, inter alia, that Palerma's points of defence and cross claim together with any affidavits be filed by 9 November 2007. Palerma has not filed any points of defence or affidavits and it is not clear to the council whether Palerma will have the benefit of legal representation at the hearing.

Zoning and Statutory Controls 7 The land is zoned 6(b) "Private Recreation" pursuant to the land use table to cl 9 of the Liverpool Local Environmental Plan 1997 ("LLEP")'.

8 The land use table provides that the land may only be used for the purposes of "advertisement" with development consent.

9 "Advertisement" is defined in cl 6 of the LLEP as: Advertisement means the display of symbols, messages or other devices for promotional purposes or for conveying information, instructions, directions or the like, whether or not the display includes the erection of a structure, or the carrying out of a work.

10 The signage and advertising structures on the land are also regulated by State Environmental Planning Policy No 64 - Advertising and Signage ("SEPP 64"). SEPP 64 commenced on 16 March 2001. It contains the following relevant definitions: advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement.

advertising display area means, subject to subclause (2), the area of an advertisement or advertising structure used for signage, and includes any borders of, or surrounds to, the advertisement or advertising structure, but does not include safety devices, platforms or lighting devices associated with advertisements or advertising structures.

advertising Industry means the Outdoor Media Association and includes, in relation to a locality, a body that represents businesses that manage advertising in the locality.

advertising structure means a structure or vessel that is principally designed for, or that is used for, the display of an advertisement

signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage 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. 11 SEPP 64 applies to the whole State [cl 5] and applies to the following signage:

(1) This Policy applies to all signage: (a) that, under another environmental planning instrument that applies to the signage, can be displayed with or without development consent, and (b) is visible from any public place or public reserve, except as provided by this Policy.

Note. Public place and public reserve are defined in section 4(1) of the Act to have the same meanings as in the Local Government Act 1993 .

(2) This Policy does not apply to signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it, or that is exempt development under this Policy. 12 If there is any inconsistency between SEPP 64 and any other environmental planning instrument, SEPP 64 prevails: [cl 7].

13 The council is the consent authority for any advertisements displayed in the Liverpool local government area: [SEPP 64 cl 12].

14 Clause 17 of SEPP 64 provides: 17 Advertisements with display area greater than 20 square metres or higher than 8 metres above ground

(1) This clause applies to an advertisement: (a) that has a display area greater than 20 square metres , or (b) that is higher than 8 metres above the ground. (2) The display of an advertisement to which this clause applies is advertised development for the purposes of the Act. (3) The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless: (a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (b) the application has been advertised in accordance with section 79A of the Act, and (c) the consent authority gave a copy of the application to the RTA at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies

(emphasis added) 15 For any display of an advertisement within 250 metres of a classified road, or any part of a classified road, the concurrence of the Roads and Traffic Authority ("RTA") is required: [SEPP 64, cll 18(1) and (2)].

The Council's Evidence 16 The council relies upon affidavits of Mr Robert Stone sworn 8 August 2007 and 22 February 2008, Mr Carlo DI Giulio sworn 8 August 2008 and Mr Dararith Meas sworn 22 February 2008.

17 Searches conducted by Mr Stone and Mr Di Giulio of the council's records and register of consents confirm that there is no relevant development consent for the signage and advertising structures.

18 Certain licences were granted in the past for other advertisements on the land but these do not constitute consent under the EPA Act for the signage and advertising structures the subject of these proceedings.

19 The signage and advertising structures are of a kind requiring development consent under cl 17 of SEPP 64 and would require development consent under cl 9 of the LLEP even if SEPP 64 did not apply.

20 The signage and advertising structures are not exempt development under SEPP 64 or the LLEP5.

22 Measurements taken by Mr Dararith Meas demonstrate that signage and advertising structures: · Are erected on the subject land; · The 3 advertising structures have the following dimensions: (a) Sign one - 8 metres wide by 5.49 metres high (43.92 square metres); (b) Sign two - 6 metres wide by 4.7 metres high (28.2 square metres); (c) Sign three - 8 metres wide by 5.9 metres high (43.92 square metres). · Are within 250 metres of the Orange Grove Road road reserve and are visible from Orange Grove Road. Hence concurrence of the RTA is required before development could be granted for the use of any of the signage and advertising structures.

23 Notices of intention to Serve Orders under s 121B of the EPA Act were served on Palerma and demands were made by council's solicitors for the signage and advertising structures to be removed but they remain in place. 24 Since the date of commencement of the proceedings the signs displayed on the advertising structures have been changed.

Conclusion 25 The signage and advertising structures have therefore been erected and continue to be used for the display of advertising without development consent in breach of s 76A(1)(a) of the EPA Act.

26 Mr Parilo, the respondent's director who has appeared on its behalf this morning, has indicated that he proposes to lodge a development application with the council within the next month or so to authorise the signage and advertising structures. Such a course seems to have been contemplated by the respondent as long ago as 2006 but Mr Parilo informed me that the respondent decided not to proceed at that time. The council is agreeable to relief being moulded to give the respondent 60 days to obtain development consent before it is obliged to remove the offending items and to grant liberty to apply. That will enable the respondent to apply to the Court to extend that time in the event that the council has not made a decision by then or if the respondent wishes to appeal to the Court from an adverse decision. The council has amended its Application accordingly this morning.

27 The Court grants the relief claimed in the Amended Application as follows: 1. Declaration that the respondent by itself or its agents is using the land known as Lot 11 in DP 881728 (63) Orange Grove Road, Liverpool (" the land ") for the purpose of the display of advertising on three (3) advertising structures one (1) approximately 8 metres by 5.49 metres in size (" sign A "), one (1) approximately 6 metres by 4.7 metres in size (" sign B ") and one (1) approximately 8 metres by 5.49 metres (" sign C ") (together " the advertising structures ") and the display of flags attached to sixteen (16) flag poles (" the flag poles ") contrary to State Environmental Planning Policy No 64 - Advertising & Signage (" SEPP 64 ") Liverpool Local Environmental Plan 1997 (" LLEP ") and the Environmental Planning and Assessment Act (" EPA Act "). 2. Declaration that the advertising structures and flag poles erected upon the land are structures or works requiring development consent pursuant to the LLEP and that no development consent has been sought or obtained, contrary to the EPA Act . 3. Order that the respondent remove or cause to be removed from the land the advertising structures and flag poles within sixty (60) days of the date of the order unless in the meantime the respondent obtains development consent from the applicant for the continued use of the advertising structures and flagpoles. 4A. Order restraining the respondent its servants and agents from using the land for the purpose of the display of advertising unless or until a development consent authorising that use is granted and operative. Order 4A is suspended for sixty (60) days. 4B Order restraining the respondent, its servants and agents from erecting or causing to be erected on the land any advertising structures unless or until a development consent authorising the erection of any such structures is granted and operative. 5. Order that the respondent pays the applicant's costs of the proceedings. 6. Liberty to both parties to apply on 72 hours' notice.

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