Lorbek Luxury Cars Pty Ltd v The Council of the City of Sydney

Texts Cited: Sydney Development Control Plan 2012

Category: Principal judgment

Parties: Lorbek Luxury Cars Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)

Representation: J Lazarus SC (Applicant)
A Singh (Solicitor) (Respondent)
Solicitors:
Foundation Law Group (Applicant)
The Council of the City of Sydney (Respondent)

File Number(s): 2025/379247

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: Located in the midst of a shop top style area within a major road thoroughfare in Rushcutters Bay is a small collection of ground floor commercial premises. This appeal is about the scale of a business identification sign for one of those commercial premises along the blank wall of a tall mixed use building.

2. The Applicant, Lorbek Luxury Cars Pty Ltd (Lorbek) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against a refusal of development application D/2025/563 by the Council of the City of Sydney (Council).

3. The DA seeks development consent for erection of a business identification sign at 141 Bayswater Road, Rushcutters Bay. The proposed signage is 12.5m high, 1.61m wide and 0.08m deep and is sought to be located on the western façade of the existing building. No illumination is proposed and the signage is limited to the word ‘Lorbek’. Indicative photomontages of the proposed signage were included in Annexure C of the Town Planning and Urban Design Joint Expert Report (JER), dated 18 May 2025 extracted below.

Figure 1: Proposed signage

4. With consideration of the evidence and submissions, I find that the proposed sign should be refused due to its excessive vertical scale of 12.5m (equating to three to four storeys) in this location.

The site and context

5. The subject site is located at 141 Bayswater Road, Rushcutters Bay, legally identified as Lot 2 DP 1201478, Lots 1-28 SP 90641. The subject site is occupied by an eight storey development, with ground floor commercial and residential apartments above.

6. As identified in the Amended Statement of Facts and Contentions (ASOFAC) and observed at the site view with the parties, the area comprises a mix of uses. The area includes a number of residential buildings, some with ground floor commercial premises, as well as several commercial only buildings. Further northeast and out of the visual catchment is Rushcutters Bay Park.

7. The hearing commenced on site. The parties drew the Court’s attention to the site itself and existing signage in the visual catchment. This included viewings from numerous viewpoints identified at Appendix B of the Planning and Design JER as well as signage under the underpass and other commercial buildings (including the Mini and BMW multi storey buildings).

8. The subject building is shown below, extracted from the SOFAC (p 4) and JER (Appendix B pp m, p, q).

Figure 2: Subject building (photo taken on 21 October 2025)

Figure 3: View from Bayswater Road

Figure 4: View from Craigend Street

Figure 5: View from corner of Craigend Street and Barcom Avenue

Key Issues

9. At the hearing, Council pressed that the following contentions in the ASOFAC warrant refusal:

10. Whether the proposed signage demonstrates design excellence.

11. Whether the signage contributes positively to the public domain and streetscape.

12. Inaccurate information relating to the photomontage.

13. Public interest.

Evidence

10. The expert evidence was helpfully submitted in a single JER. The experts were as follows:

11. Andrew Piggot – Town planner for Lorbek

12. Damian Corney – Design expert for Lorbek

13. Reese Goh – Town planner for Council

14. Julia Pressick – Urban designer for Council

15. Oral evidence was adduced at the hearing.

Does the proposed sign demonstrate design excellence and is the signage consistent with the character of the area?

12. Council presses contentions 2 and 3 that the proposed signage does not demonstrate design excellence and does not meet a number of signage controls in the Sydney Development Control Plan 2012 (SDCP) and State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE), with resultant impacts on the streetscape and visual clutter (amongst other stated impacts).

13. The following relevant provisions of Ch 3 relating to advertising and signage of SEPP IE state:

3.1 Aims, objectives etc

(1) This Chapter aims—

(a) to ensure that signage (including advertising)—

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish, and

(b) to regulate signage (but not content) under Part 4 of the Act, and

(c) to provide time-limited consents for the display of certain advertisements, and

(d) to regulate the display of advertisements in transport corridors, and

(e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.

(2) This Chapter does not regulate the content of signage and does not require consent for a change in the content of signage.

…

3.2 Definitions

business identification sign has the same meaning as in the Standard Instrument.

…

3.6 Granting of consent to signage

A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied—

(a) that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5.

…

Schedule 5 Assessment criteria

1 Character of the area

• Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

• Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

2 Special areas

• Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

3 Views and vistas

• Does the proposal obscure or compromise important views?

• Does the proposal dominate the skyline and reduce the quality of vistas?

• Does the proposal respect the viewing rights of other advertisers?

4 Streetscape, setting or landscape

• Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

• Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

• Does the proposal reduce clutter by rationalising and simplifying existing advertising?

• Does the proposal screen unsightliness?

• Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

• Does the proposal require ongoing vegetation management?

5 Site and building

• Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

• Does the proposal respect important features of the site or building, or both?

• Does the proposal show innovation and imagination in its relationship to the site or building, or both?

6 Associated devices and logos with advertisements and advertising structures

• Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

7 Illumination

• Would illumination result in unacceptable glare?

• Would illumination affect safety for pedestrians, vehicles or aircraft?

• Would illumination detract from the amenity of any residence or other form of accommodation?

• Can the intensity of the illumination be adjusted, if necessary?

• Is the illumination subject to a curfew?

8 Safety

• Would the proposal reduce the safety for any public road?

• Would the proposal reduce the safety for pedestrians or bicyclists?

• Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

14. The Sydney Local Environmental Plan 2012 (SLEP) permits business identification signs in the MU1 Mixed Use zone with consent.

15. The relevant parts of the design excellence provisions in the SLEP state:

6.21B Application of Division

(1) This Division applies to development involving the erection of a new building or external alterations to an existing building on land to which this Plan applies.

…

6.21C Design excellence

(1) Development consent must not be granted to development to which this Division applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

(2) In considering whether development to which this Division applies exhibits design excellence, the consent authority must have regard to the following matters—

(a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved,

(b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

(c) whether the proposed development detrimentally impacts on view corridors,

(d) how the proposed development addresses the following matters—

(i) the suitability of the land for development,

(ii) the existing and proposed uses and use mix,

(iii) any heritage issues and streetscape constraints,

(iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) the bulk, massing and modulation of buildings,

(vi) street frontage heights,

(vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity,

(viii) the achievement of the principles of ecologically sustainable development,

(ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network,

(x) the impact on, and any proposed improvements to, the public domain,

(xi) the impact on any special character area,

(xii) achieving appropriate interfaces at ground level between the building and the public domain,

(xiii) excellence and integration of landscape design.

16. The following controls in the SDCP are identified as relevant to the proposal. For the purposes of understanding the relevant SDCP controls, the site was formerly zoned B4. The site is located in The Bays locality and is not within a ‘signage precinct’.

“Section 2 Locality Statements

This locality consists of the Elizabeth Bay and Rushcutters Bay neighbourhoods and are bounded by Sydney Harbour and naval lands to the north; the rear of eastern lots along Macleay Street; the rear of lots to the south of Greenknowe Avenue; the rear of lots to the west of Roslyn Gardens; St Lukes Hospital; Roslyn Street to the West; Rushcutters Bay Park to the east and New South Head Road to the south.

The Bays is a predominantly residential area with a diversity of housing styles and densities within a landscape setting that allows view sharing to continue from the private domain and gaps between buildings. Elizabeth Bay House is to be preserved as a heritage item and a landmark heritage building.

There are small clusters of shops at Elizabeth Road and Bayswater Road that complement the Kings Cross centre.

Principles

(a) Development must achieve and satisfy the outcomes expressed in the character statement and supporting principles.

(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes.

(c) Maintain view corridors to Sydney Harbour and parks.

(d) Maintain important views from Elizabeth Bay House towards the harbour, and from the harbour towards Elizabeth Bay house.

(e) Maintain buildings within a landscape setting. New buildings should be positioned in the middle of lots and surrounded by gardens and informal tree planting.

(f) Retain the unique “loop” on Elizabeth Bay Road with grand residences and their significant landscapes, juxtaposed against tall narrow fronted apartment buildings with views through to Sydney Harbour.

(g) Provide a landscaped foreshore setback at the edge of Sydney Harbour.

(h) Retain and improve pedestrian access to Reg Bartley Oval and Rushcutters Bay Park.

(i) Preserve the diversity of building types, architectural periods and heights in the area by retaining buildings from the Federation, Victorian and interwar periods.

(j) New building forms with narrow street frontages and building separations are encouraged to provide views to the harbour and sky and creating opportunities for vegetation/tree planting.

(k) Design new buildings to maintain a consistent height datum (RL) while responding to a change in topography to enable lower building heights on the top of the slope and taller building heights at the bottom of the slope. Built form that steps in elevation with the topography is not supported.

(l) Step built form along Macleay Street and the ridge line and along the bottom of the cliff down towards Sydney Harbour.

(m) Encourage Greenknowe Avenue as a mixed use street with small office and commercial uses along the street frontage at ground level.

Section 3.16 Signs and advertisements

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.

(5) To deliver coordinated and site-specific approaches to signage that respond to, complement and support the architectural design of a building and any heritage significance.

(6) To protect the amenity of residents, workers and visitors.

(7) To ensure signs and advertisements do not create a road safety risk or hazard, confuse, distract or compromise road user safety in any road environment.

(8) To ensure signage does not detract from a high quality pedestrian experience of streets and other public spaces and prioritises way finding and other signs that are in the public interest.

(9) To encourage signs and building frontages that provide and allow for interesting and active streets preferably through views in to and from a premises but also through architectural detailing of the sign and building.

(10) To encourage and provide opportunities for innovative, unique and creative signs.

(11) To ensure that upgrades to existing third party advertising structures deliver improved design quality and community benefits.

(12) To reduce energy consumption and minimise the negative amenity impacts of signs and advertisements.

(13) To ensure signage contributes to the character of identified precincts and is consistent with land uses throughout the city.

…

3.16.2 Changes to content

(1) A new development consent is not required for changes to the content of approved signage.

…

3.16.3 General requirements for signage

(1) Signage is to be compatible with the architecture, materials, finishes and colours of the building and the streetscape.

(2) Signage attached to a building is to be positioned in locations or on

panels in between any architectural elements (such as awnings, windows, doors and parapet lines). Signs are not to conceal or detract from integral architectural features or cover any mechanical ventilation systems.

(3) Signage is to be installed and secured in accordance with relevant Australian Standards.

(4) Signage that will detract from the amenity or visual quality of heritage items, heritage conservation areas, open space areas, waterways or residential areas is not permitted.

(5) Signage should not create unacceptable visual clutter taking into account existing signs, neighbouring buildings, the streetscape and the cumulative effect of signs.

(6) Signs should allow the main facades of buildings from the first floor to the rooftop or parapet to be uncluttered and generally free of signage.

(7) Signage is not to be supported by, hung from or placed on other signs or advertisements.

(8) Signage that will distract road users, or could be mistaken for a traffic control device, is not permitted.

(9) Signage that will unduly obstruct the passage or sightlines of vehicles, cyclists or pedestrians is not permitted.

(10) Advertisements, dynamic content signs and light projection signs on or within the vicinity and visible from a classified road are to be consistent with the road safety criteria in section 3 of the NSW Transport Corridor Outdoor Advertising and Signage Guidelines.

(11) Signage is not to contain reflective materials, colours and finishes.

(12) Signage is not to incorporate sound, vibration, odour or other emissions, unless the emission is necessary as part of a community message, an approved public artwork or to meet accessibility requirements.

(13) Signage is not to result in the gathering of people in any manner that will limit the movement of motorists, cyclists or pedestrians along a public road, thoroughfare, footway or other access way.

…

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.

…

(5) Corporate colour schemes associated with business identification are only

permitted where the consent authority is satisfied that the colour scheme is

compatible with the character of the streetscape and will not detract from

the appearance of the building.

…

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 demonstrate 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).

…

3.16.6.3 Flat mounted wall signs

(1) Flat mounted wall signs for business identification that are not exempt

and complying development may be permitted on blank side elevations

of existing buildings if the consent authority is of the opinion that the sign

improves the elevation of the building, it’s contribution to the public domain

and does not contribute to sign clutter.

(2) Flat mounted wall signs for business identification are to have a maximum

height above ground level (existing) of:

(a) 4.5m on land zoned Business (B1-B8) or Residential (R1-R2);

…”

Evidence

17. The experts agree on the below aspects of the proposal:

18. The dimension of the proposed signage is 12.5m in height and 1.61m wide. There is no border to the sign.

19. The amended signage comprising white lettering on the grey coloured façade is less visually prominent than the original unauthorised signage.

20. Schedule 5 of SEPP IE relating to criteria 2, 6 and 7 are not applicable in these circumstances and criteria 8 (safety) has been satisfied.

21. Ms Pressick, urban designer for Council characterises the area as a cluster of shops amongst shop top housing. Surrounding shops include signage such as top hamper signs, under awnings signs, awning fascia signs and window signs.

22. Ms Pressick’s evidence is that the proposed 12.5m sign sits just below the top of the building and extends to the third floor. This is a significantly scaled sign that is taller than any other business identification sign in the visual catchment and uncharacteristic of the desired future character sought by the SDCP. The SDCP does not permit business identification signage above the street awning or above ground more than 4.5m in this zone and the proposed sign is therefore uncharacteristic of the desired future character of the area.

23. The SDCP allows for other signs so long as they exhibit design excellence. In Ms Pressick’s view, the design excellence provisions of both cl 6.21C of the SLEP and Section 3.13.6.2 of the SDCP are not met. In considering cl 6.21C of the SLEP, Ms Pressick’s evidence is that the size and location of the sign is the issue. The sign is designed to have a significant visual impact to passing cars, pedestrians and residents. It is also visible from the railway (travelling west to east from the railway) and from the footpath. The sign itself does not improve the quality and amenity of the public domain nor improves the blank elevation and is uncharacteristic with this small set of shops, the SDCP and the locality statement for the area.

24. Ms Pressick clarified in her oral evidence that views were not lost as a result of the sign, but simply that the large sign would be visible when viewing towards the heritage listed Rushcutters Bay Park. Ms Pressick’s evidence is that subcll 6.21C(2)(a), (b), (c), (d)(iii) of the SLEP are not satisfied.

25. In relation to the SDCP, Ms Pressick’s evidence is that the SDCP does not seek to add interest to blank building elevations through signage as sought by Section 3.16.6.3. The SDCP encourages this type of signage to remain adjacent to the tenancy and concentrated around ground level or awning height. The desired character is for a strong retail/business ground floor and residential character above awning height. In addressing the matters for consideration under Section 3.16.6.2 for variations that demonstrate design excellence and achieve a better outcome, Ms Pressick says that the size of the building does not justify the scale of the sign, and that the proposed signage covering four storeys adds visual clutter. The sign has been proposed for maximum visibility and is not relative in scale to the relatively small scale of the showroom. It was agreed that the sign has been designed by a designer and that materiality of the sign is of high quality with subtle colouring, however the scale on the side of a residential building does not improve the blank side wall. Further, there are aspects of SEPP IE (referred to in the SDCP by its predecessor, State Environmental Planning Policy No 64—Advertising and Signage) that are not met. Accordingly, the sign does not demonstrate design excellence or a better outcome for the public domain or the building and a variation to justify a variation of the standards.

26. Ms Pressick acknowledges there are exceptions to the SDCP demonstrated by existing signage for Liquorland and a third party advertising sky sign. Her evidence is that they were approved under the former South Sydney planning controls.

27. In response to both cl 6.21C of the SLEP and the raised sections of the SDCP, Ms Pressick raises concerns that once signage is granted development consent, the content including materials, background and colour can be changed as exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). The size and location of the sign is therefore a key issue, rather than the colour and design of this content.

28. Ms Pressick agreed with Mr Corney’s evidence that the proposed white letters against the grey background offer a simple and restrained aesthetic that is visually congruent with the building design, but emphasised that it was the scale and location of the sign that was problematic and the ability of the sign to be altered as exempt development.

29. Ms Goh, town planner for Council agrees with the character of the area as described by Ms Pressick and elaborates that The Bays locality statement (Section 2.4.6 of the SDCP) does not refer to large scale signage or beautification of buildings with signage or art like other statements do (for example, the William Street locality in Kings Cross). The proposed signage is much larger and out of scale compared to other existing business identification signs and would dominate the view from the public domain and eastwards towards Rushcutters Bay Park. The four storeys high signage is inappropriate for The Bays locality and does not contribute to a sense of place for residents. The size of the sign does not provide effective communication in a location suitable for a small tenancy. Ms Goh says that the concern is not about the design, materiality or lettering of the sign. The issue is that the proposed sign is four storeys high, reflecting a small tenancy on the ground floor of an eight storey building with seven storeys of residential development. The scale of the sign is excessive on the building, does not contribute to the visual interest of streetscape and does not reflect the character of uses in the area. The signage therefore disproportionately emphasizes the ground floor use. Due to the size of the sign and its location, for the reasons set out above, Ms Goh says that Criteria 1, 3, 4, 5 of Sch 5 of SEPP IE have not been satisfied.

30. Ms Goh’s evidence is that the signage for the nearby vehicle showrooms (BMW, Polestar, Denza and Mini) comprise appropriately scaled signage on the front façade and are building identification signage, not business signage. These businesses also occupy the majority of the building’s floor area.

31. Ms Goh’s evidence in relation to the two signs at 123-127 Bayswater Road is that these form part of the visual character of the area, but that these were approved under the former South Sydney Council. They are considered anomalies and do not reflect a precedent for future signage for the area.

32. Ms Goh disagrees with Mr Piggot’s interpretation of Sections 3.16.6.3(1) and (2) and says that these provisions of the SDCP are to be read together. Flat mounted wall signs may be permitted on blank side elevations and are also restricted to a maximum height of 4.5m above existing ground level in this zone. The oversized four storey scale of the sign does not improve the elevation, detracts from the visual amenity of a predominantly residential area and adds visual clutter. The oversized scale is atypical of business identification typically seen in a residential area and contrary to the SDCP.

33. Mr Corney, design expert for Lorbek, gave evidence that the proposed sign does meet the design excellence provisions. In addressing Section 3.16.6.2 of the SDCP, Mr Corney said that the lettering is proportionate to the building height, enhances the character of the area by beautifying a drab concrete party wall and completes the façade. The building’s mid-century modernist DNA as expressed by the inset hooded balconies are echoed and reinforced by the vertical design of the lettering of the signage. The neutral colour palette draws on the existing building and surrounding architecture and conveys a message to those who seek it rather than those who do not. The depth of the lettering, at 80mm, creates a premium three dimensional architectural look. Working with the ground level fascia sign, the proposed signage will be readable from distance so that people can locate the business as they drive towards it and at close proximity through the existing fascia sign. There are no impacts on road safety or the amenity of surrounding land or the public domain.

34. Mr Corney’s evidence is that the proposed signage is the antithesis of clutter, in that it is one word, one material, one colour and with no background colours, messaging or slogans. The sign is a restrained design in a commercially focused streetscape. The positioning of the letters on the upper half of the building significantly reduces the visual weight and perceived dominance from street level.

35. Mr Piggot, town planner for Lorbek says that whilst the area is predominantly residential, the site is located in a cluster of local shops along Bayswater Road. The character at street level is distinctly commercial as reflected in the locality statement. Both sides of Bayswater Road in this location feature commercial and retail uses and signage including awning signage, top hamper signs and window signs.

36. Mr Piggot’s evidence is that the area includes larger scale commercial signage. A large Liquorland flat mounted wall sign and third party rooftop signs exist in the area, shown below:

Figure 6: Photograph of the existing streetscape (Source: Pigott 2026)

34. Mr Piggot’s evidence is that criteria 1 of Sch 5 of SEPP IE specifically contemplates the existing or desired future character. This dual test includes consideration of the existing character of the area, which includes these signs. To disregard them is to assess the proposal against a hypothetical streetscape. Whilst it is agreed that large signage above awning height has not been approved in the last fourteen years under the current controls, the SDCP expressly provides a design excellence pathway for variations to these controls. This means that signage above the awning is not contrary to the desired future character.

35. Mr Piggot’s evidence is that the signage is located in an appropriate location so that the business can be identified by those approaching from the west, where the principal façade offers limited visibility from this approach. The western elevation is the only façade visible for approaching traffic and is the most effective and suitable location.

36. Mr Piggot says that the comparisons to the vehicle showrooms (Volvo, Mini and BMW) in the Darlinghurst East locality are not appropriate as these uses occupy the building and allow effect signage at lower levels, which the subject premises cannot. They also provide extensive signage across their buildings.

37. Mr Piggot agreed that the materials of the lettering are of high visual quality and are durable and fade proof. The proposed signage, including its lettering and proportions has been prepared by professional designers and architects. It is this proposed design that is the subject of the DA, not a hypothetical change that is open to all signage approvals under the Codes SEPP. The proper approach is to assess the sign as proposed.

38. Mr Piggot’s evidence was the relevant criteria in Sch 5 and the objectives have been met by the proposed sign, as well as both design excellence provisions in the SDCP and SLEP. In addition to the previous evidence, Mr Piggot’s evidence is that the signage is compatible with the existing signage and desired future character. The cluster of local shops in the locality statement and associated signage is part of the character. The proposed signage incorporates a restrained colour palette that is cohesive with the existing signage. The sign does not obscure or compromise important views and is only 0.8m in depth (flush-mounted to the wall surface). The slender proportions are visually modest against the eight storey building and provides visual interest on an otherwise blank and visually boring grey wall as contemplated with Section 3.16.6.3(1) of the SDCP. There are no impacts on the view corridor to Rushcutters Bay Park as the sign is located on an existing elevation.

39. The proposal achieves the design excellence provisions of the SDCP and Section 3.16.6.3(1) to allow for a variation on its merit for a sign above 4.5m-5m sought in the SDCP. The proposal improves the building elevation, contributes to the public domain by providing visual interest and wayfinding to the business premises whose under awning sign is obscured and does not contribute to sign clutter as it is a single element of an empty wall.

Submissions

40. Mr Singh for Council submits that once this sign is granted consent, ss 2.96 and 2.97 of the Codes SEPP allow for the replacement of the content of the signage without any need for consent. The dimensions and location of the sign are therefore the principal matters of concern.

41. Mr Singh submits that the Court is required to consider the mandatory matters of cl 6.21C – Design excellence of the SLEP in its terms with consideration of the evidence: Toga Penrith Development Pty Ltd v Penrith City Council [2022] NSWLEC 117 at [95]-[97] (“Toga*”*) and Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 at [85] (“Aloke”). The Court must engage with the evidence of the experts concerning each element of cl 6.21C(2). The Applicant’s experts have not directly addressed the matters in cl 6.21C of the SLEP in the JER. Council’s evidence is that cl 6.21C(2)(a)-(c) and (d(iii)) are not satisfied.

42. Mr Lazurus SC for Lorbek submits that the consent authority must consider the development as proposed, not some hypothetical sign of unknown form, colour, design: Ku-ring*-*gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [202]-[204] (“Bunnings”); LFD Homes Pty Ltd ATF The LFD Homes Unit Trust v The Council of the City of Sydney [2025] NSWLEC 145 at [60] (“LFD Homes”). Notwithstanding, in order to address the concerns of Council about future design changes, the Applicant has submitted a written undertaking to the Court that the sign will be removed when the Applicant ceases operation and that the Codes SEPP cannot be utilised.

43. Mr Lazurus SC submits that criteria 1 in Sch 5 of SEPP IE does not require compatibility with both the existing and future character. Character is evaluative and depends on the context. There is no clear statement for the desired future character and the restrained, non-illumined signage on an otherwise blank wall is compatible with the character as detailed in Mr Piggot’s evidence.

44. Mr Lazurus SC submits that the signage does not introduce ‘clutter’ into the streetscape and the meaning of clutter can mean a ‘disorderly assemblage of signs’: SLR Consulting Australia Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1402 at [61] and [71] (“SLR”). The proposed sign is physically separate from the other signs in its context and of a completely different and restrained design: OOH! Media Assets Pty Ltd v Ballina Shire Council [2024] NSWLEC 1363 at [197] (“OO**H! Media”).

Consideration and findings

45. I firstly accept that there is no inconsistency between the proposed sign and the locality statement for The Bays. As explored in cross examination of Council’s experts by Mr Lazarus SC, the principles in the locality statement are not directed to this type of development and I accept that none of them are offended by the proposal. The description of the area being a ‘small cluster of shops’ is agreed between the experts, and I accept Mr Piggot’s evidence that there are no view impacts caused by the proposal due to its location. Whilst it is true that the sign will be perceived by people at certain view points walking towards the heritage listed Rushcutters Bay Park from various vantage points, these are discrete views in the context of a blank elevation and not the types of views or view sharing that the locality statement is concerned about.

46. Secondly, I find that the ability to change the content of the proposed sign without consent under the Codes SEPP is not a relevant to consideration of the proposal. The issues raised are understandable, but the consideration of the proposed signage is focused and limited to the subject proposed development and not any other hypothetical sign as submitted by Mr Lazarus SC: Bunnings at [202]-[204] and LFD Homes at [60].

47. Having considered the evidence and issues raised, I accept Ms Pressick and Ms Goh’s evidence and Mr Singh’s submissions that the scale of the proposed signage is contrary to the relevant provisions of SEPP IE and SDCP for the following reasons.

48. I find that Section 3.16.6.3 (1) and (2) of the SDCP are both applicable. It is not always the case that all controls in a section of a DCP flow from each other, but why both of these controls would not simply apply to the proposal is unclear to me. The proposal seeks consent for a flat mounted wall sign. On its terms, these controls apply to this type of sign and there are no indications in the text of the control that one control takes precedence over the other or that only one applies. I therefore accept that they both apply. I accept Ms Goh and Ms Pressick’s evidence that in this context, the desired future character is shaped by the planning controls that apply. Given it is a state policy, SEPP IE does not, of itself, assist in understanding that character. It was agreed that the two large signs immediately present in the strip of shops were granted consent prior to the current SDCP and by a former Council. I give these signs less weight in the consideration of the character of the area in circumstances where the SDCP seeks a different character, one where it encourages business identification signage to be primarily contained to a ground floor or awning presence. Sections 3.16.6.1(2) and 3.16.6.3(2) both seek to limit business signage to below the height of the awning or up 5m and 4.5m respectively. Whilst I accept that Section 3.16.6.2 permits variations (and reasonable alternatives must be considered in accordance with s 4.15(3A) of the EPA Act) the overall intent of the desired future character sought is clear. I also place more weight on the desired future character as the existing character demonstrated by some of the large signage detracts from the building elevations and the streetscape in a mixed but otherwise mostly residential area – albeit one located within a major road thoroughfare.

49. I accept Mr Piggot’s evidence that the proposed signage would provide effective guidance for those approaching from the west to the business’ location. I also agree with Mr Corney’s evidence about the neutral materials, restrained lettering design and location of the sign reducing the weight and dominance of the signage from some locations at street level. However, the opportunity to utilise an unsightly blank side elevation of the existing building for signage to assist visitors find the premises does not warrant utilising a third to almost half of the height of an eight storey building. The differing vantage points discussed in the JER and viewed onsite demonstrate the range of different views that would perceive the existing signs and the proposed sign. Some views demonstrate this sign and the others as highly visible; others show partial or negligible views of this sign or the others, and other views demonstrate where the proposed sign by itself would be most prominent (particularly up close or as shown from the Darlinghurst East locality).

50. As submitted, I agree that visual clutter in this context can be understood as a disorderly heap or assemblage of signage (SLR at [71]) and must be understood in its context: OOH! Media at [197]. I prefer Ms Pressick’s evidence that the proposed signage, due to its scale and location amongst other existing signs, does create visual clutter at multiple vantage points. The location and scale of this sign that would be read amongst the existing third party provider sign and Liquorland sign would dominate the building facades and detract from the character of the area. The scale of the proposed sign adds to the collection of above awning signs that would present in a disorderly and incongruent manner with a dominant commercial presence. This would be most visible for pedestrians and motorists as shown at Views 4, 7, 13 of the JER (Appendix B, pp d, g and m) and would increase the dominance of signage at a height and scale not sought to be continued by the SDCP. The neutrality of the materials of the proposed sign and its lettering does not go far enough to minimise the impacts of the scale of the proposed signage vertically down the façade for three to four storeys. On its own, it would still be too large but not cause visual clutter. However when read with the other dominant signage, all with varying degrees of heights and configurations, the proposal adds to visual clutter. I find that the proposed signage would create clutter contrary to Sections 3.16.6.1(1)(a), 3.16.6.2(1)(g) and 3.16.6.3(1) of the SDCP.

51. I prefer Ms Pressick’s evidence that the proposed signage does not exhibit design excellence as allowed by Section 3.16.6.2 of the SDCP to justify a variation to the flat mounted wall signage controls. I find that the proposed signage is not compatible with the visual character of the area as sought by s 3.1(1)(a) and reinforced by criteria 1 of Sch 5 of SEPP IE as the sign is too large and unreasonably increases the visual presence of signage for this small section of commercial uses (Section 3.16.6.2(b) and (h) of the SDCP). I accept Ms Pressick and Ms Goh’s evidence that the proposed signage will continue to tip the balance in prioritising signage of commercial tenancies across residential portions of buildings in circumstances where the desired future character is for this type of signage is to be concentrated at ground level, awning level or around 4.5m in height. I find that the previous signs for Liquorland and the third party signage are reflective of previous controls and contrary to the now desired future character of the area set by the SDCP. Whilst these signs exist and form part of the area, they are large, intrusive elements reflective of previous controls that are no longer envisaged for the area by the current planning controls. For the reasons previously articulated, I also accept that the signage adds visual clutter to an area primarily residential in character that is already subject to two large signs. The proposal therefore does not enhance the character of the area through its addition to visual clutter at various vantage points (Section 3.16.6.2(a) and (g)). Having considered the questions in Section 3.16.6.2 and accepting that these are not criteria in and of themselves to be met, my consideration of these aspects leads to a finding that the sign dos not exhibit design excellence pursuant to Section 3.16.6.2 of the SDCP. Accordingly, the variation sought to Section 3.16.6.3 of the SDCP is not supported. I accept that the proposal is contrary to the desired future character of the area and disproportionate to the scale of the building and its uses, contrary to criterions 1, 4 and 5 of Sch 5 and aim 3.1(1)(a)(i) of SEPP IE. Accordingly, I am also not satisfied that s 3.6(a) and (b) of SEPP IE have been met.

52. To the extent that it was argued that Section 3.16.6.3(1) should be read on its own terms and not with Section 3.16.6.3(2), as I have found that the sign contributes to sign clutter then I also accept that Section 3.16.6.3(1) has not been met. For completeness, I note that there was very limited to no evidence addressing the overarching objectives to the controls of Section 3.16 of the SDCP in order to provide flexibility pursuant to s 4.15(3A) of the EPA. In any event, I have been mindful of the duty to be flexible in applying the provisions of the SDCP for reasonable alternative solutions. Given the adverse findings from the variation sought, flexibility is not appropriate in these circumstances.

53. In my view, the building identification signage for the identified car showrooms does not greatly assist. I accept that whilst they are in a different locality, they are within the visual catchment and a relevant consideration. However as they are building identification signage, they are subject to different controls in the SDCP at Section 3.16.5. These controls contemplate top of building signs (albeit, restrained to one ‘typical floor’ in vertical height) and heights to 15m. The proposed sign is in the order of three to four storeys in vertical height. Whilst I accept that these buildings prominently display signage on their buildings, some of which include artistic elements (Polestar) the parts of the signage that were said to be consistent with their consents are proportional to the size and use of the respective buildings. These have ultimately not assisted in the scale of sign sought here.

54. I accept Mr Singh’s submissions that the relevant provisions of cl 6.21C of the SLEP have not been squarely engaged with the Applicant’s experts and that the Court is required to engage with each of the matters for consideration and consider them all as cumulative matters: Toga at [95]-[97] and Aloke at [85]. However, given the findings made with consideration of SEPP IE and the SDCP, there is no reason to also consider cl 6.21C as these findings are determinative.

55. For all of the reasons given above, the application is to be refused.

Conclusion

56. With consideration of the evidence against the planning controls in SEPP IE and the SDCP, I conclude that the scale of the sign spanning three to four storeys of an eight storey building is excessive and would result in visual clutter in its context with other detracting signage. The primarily residential area would be further dominated by commercial signage along residential elements, contrary to and discouraged by the SDCP. The DA is therefore refused.

Orders

57. The Court orders that:

58. The appeal is dismissed.

59. Development application D/2025/563 for installation of a business identification sign on the building at 141 Bayswater Road, Rushcutters Bay is refused.

S Porter

Commissioner of the Court

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