The Applicant's expert, Mr Bitzios, gave evidence (Ex C5, par [23]) that the traffic volumes carried by the Pacific Hwy at this location are not unusually high for a State road and that, in any case, high volume roads such as the sections of the Pacific Hwy and Boundary St in visual proximity to the Proposed Sign are not inherently unsafe. He says that the casualty crash rate for this section of the Pacific Hwy is well below the average for urban roads. In his opinion, the intersection of the Pacific Hwy and Boundary St should not be described as a major decision point. While he accepts that many drivers may make decisions at this intersection, in his opinion they are simple decisions not complex decisions (complexity increases with the number of decisions and the difficulty of the thinking needed to make them).
Mr Bitzios says that he attaches little importance to the Advertising Guidelines which he believes are not based on any substantive research. Mr Bitzios says that the Proposed Sign will be in exactly the same location as the current, static sign and in his opinion "the crash risk change due to the digital sign is practically zero" (Ex C5, par 44(d)).
The evidence given by Mr Bitzios was that pedestrian safety is not impacted by the Proposed Sign because pedestrians walk on separated footpaths and enjoy crossings controlled by pedestrian signals. He also gave evidence that he has not observed road cyclists in proximity to the intersection, which he says is likely to be because the intersection provides an unattractive cycling environment because of the narrow lanes and high traffic volumes.
Mr Bitzios does not accept that the digital sign will have any impact on the effectiveness of the traffic signals and says that drivers will continue to slow, stop or go based on the multiple signal changes which occur at once at various points within the field of view. He also disputes that the digital sign will be misconstrued as a traffic signal when compared to the number of traffic signal lanterns in the foreground of a driver's field of view.
Mr Bitzios does concede that some drivers will be reliant on the directional signage but says that this will be an "extremely small proportion of drivers" who are unfamiliar with the area and do not have access to a vehicle-based or mobile phone-based navigation system.
The evidence of Mr Bitzios is that the decisions needed to be made at the intersection of Boundary Street and the Pacific Highway are no more complex than decisions that need to be made at other 4-way signalised intersections. His evidence is that those decisions are probably less complex than at many other 4-way intersections because a number of movements are not allowed, all competing movements are signal controlled and traffic congestion with associated slower speeds mean drivers have longer times in which to make decisions to slow, stop, start or change lanes.
[2]
The Council's expert evidence
The Council's traffic expert, Mr Farrelly, gave evidence that the intersection of the Pacific Hwy and Boundary St carries a high volume of traffic which leads to long queues forming on both the Pacific Hwy and Boundary St during morning and afternoon peak periods. Traffic generated by the service station in particular can, in his opinion, lead to "high and random entry and exit movements onto Pacific Hwy and Boundary St". His evidence is that these movements require high levels of skill by all road users to minimise safety hazards to other road users. He said that motor vehicle drivers have different driving behaviours which can lead to safety hazards and conflicts for other road users. Motor vehicle drivers may, for example, "utilise short duration signalling, sharp braking, accessing small gaps in the traffic stream".
Mr Farrelly's evidence is that driver knowledge of the road network and its connections can vary significantly. He says that drivers who are unfamiliar with the area are required to utilise high levels of concentration to travel safely through the intersection. He says that the guide signs (white text on green background) provided at the intersection provide guidance to drivers in Boundary St as they approach its intersection with the Pacific Hwy and that drivers' ability to identify, read, understand and respond in an acceptable time with safety is essential at all times. Mr Farrelly's evidence is that drivers are required to use the guide signs to understand the direction and lane to use to travel to their destination. In his opinion, a digital advertising sign located above the guide signs will "impact on the road environment, traffic control devices and road and pathway user behaviours including the use of the guide signs" (Ex C 5, par 25(f)). His evidence is that the Proposed Sign will necessitate increased concentration on the approach and traversing through the intersection.
Mr Farrelly gave evidence that the Proposed Sign will be located within an intersection that is controlled by traffic control signals which, he says, are designed and operated with a high number of phases, signals, posts and signal displays. In his opinion, this combination produces "a 'complex' traffic signal arrangement and phasing".
Mr Farrelly's evidence is that the location of the Proposed Sign is inconsistent with the Advertising Guidelines which state that a sign should not be located so that it is visible from the stem of a T-intersection or so that it distracts a driver at a critical time.
Mr Farrelly's evidence is that the design and operation of the proposed digital sign will be "more conspicuous" than the Existing Sign. He says that the digital sign will provide more messages more frequently than the Existing Sign and will lead to drivers, cyclists and pedestrians being more likely to be attracted to view its contents for a longer period of time either at one viewing or over successive intervals. He believes it will increase road user distraction and reduce the level of safety at this heavily utilised intersection. In this regard he points out that there were ten car crashes recorded in the area of influence of the sign between 2018 and 2020 which he says is an indication of the high demands and complexity at this intersection.
Mr Farrelly also gave evidence that Part G.5.3 of the DCP provides that advertisements are to maintain satisfactory road safety by avoiding, amongst other things, advertisements within the driver's line of sight at an intersection or turn.
[3]
The second respondent's expert evidence
The second respondent's traffic expert, Mr Bakovic, gave evidence that the intersection and its approaches involve a considerable number of decision points for road users whether they be drivers, motorcyclists, pedestrians or cyclists. In his opinion, on the Pacific Highway's northern approach and Boundary Street's approach to the intersection, a significant number of decisions are required to be made at a number of decision points in order for a driver to either drive through or turn at the intersection in a safe and convenient manner. He says that these decisions are not only associated with changing of traffic lanes but also involve dealing with surrounding traffic.
Mr Bakovic also gave evidence that traffic flows on both the Pacific Highway and Boundary Street have the characteristics of a 'platoon', especially in peak traffic periods, which is the result of grouping vehicles at one of the upstream signalised intersections. He explained that a 'platoon' is a group of vehicles that travels in close proximity to one another, nose-to-tail, at pretty much the same speed, and where a lead vehicle is followed by a number of other vehicles that closely match their speed and manoeuvres to the lead vehicle. His evidence is that even a small lapse in a driver's concentration resulting from distraction by the Proposed Sign could increase the chance for rear-end collisions between vehicles travelling in such a platoon.
Mr Bakovic believes the ability of the Proposed Sign to vary messages will result in a higher likelihood of distraction. Mr Bakovic gave evidence that during peak traffic periods and throughout much of the day the intersection carries high motor vehicle volumes, including heavy vehicles (which he says pose greater danger because they need more time and distance to stop). The intersection is controlled by traffic signals with phasing that he says requires a high level of attention and concentration by drivers in different road, traffic and environmental conditions. He describes the intersection as being one with a high number of traffic lanes designated for through, shared and designated turning movements which require a high level of attention and concentration by drivers. Mr Bakovic is of the opinion that the current traffic environment is already "quite complex and demanding to drivers" and that the Proposed Sign is designed and likely to distract drivers' attention and, even if this is only momentary, that this will jeopardise traffic safety and increase the likelihood of traffic collisions.
[4]
Applicant's submissions
The Applicant's submissions may be summarised as follows:
1. The Modification Application will result in "very little change" in the size of the sign.
2. It would be inappropriate to assess the Modification Application as if it were a fresh application for development consent for a new advertising structure. The modification application is not an opportunity to reassess those aspects of the advertising structure that were already approved and are not relevant to the modification.
3. The only changes effected by the Modification Application (and that can properly be taken into consideration) are:
1. The sign will be internally lit rather than backlit;
2. The sign will be capable of changing every 10 seconds (but will remain a static advertisement and not one that involves animation, video, flashing, scrolling, flickering or other movement;
3. The Proposed Sign will be finished with a black cabinet and skirt.
1. The Industry SEPP does not apply to the Modification Application at all as it applies only to signage that can be displayed with or without development consent. However, reference may be had to the Industry SEPP "to identify the contemporary standards that apply to such signage".
2. This is not a particularly complex intersection having regard to the simple decisions involved, the traffic signal phasing and lane allocation is no more complex than many other 4-way signalised intersections, the sign is in the same field of view as information required for driving decisions on the westbound and southbound approach, most digital sign changes will occur when drivers are moving slowly or are stopped and the dwell time is consistent with the Advertising Guidelines.
3. The evidence demonstrates that the visibility and effectiveness of the traffic control signals will not be compromised by the advertising sign. There is only one location on approach to the Site where the Proposed Sign is visually behind a traffic signal: westbound on Boundary St in the far left and second left hand lane from 40 m to 20 m from the stop line (Ex C5, [23(k)(ii]) and the Court should accept Mr Bitzios' evidence that it "is unreasonable to assume that that within this very small view range that this would inhibit a driver at all from recognising signal changes".
4. If the lower traffic signals are obscured by trucks or buses drivers would rely on the vehicle in front and brake lights to take cues as to whether the lights are still green and by the time a car reaches the front of the traffic queue it will be past the point at which the mast sign is in front of the advertising sign. Cars driving behind larger vehicles are also likely to be travelling slowly and by the time they reach the stop line the mast sign will be overhead and will not be relied upon.
5. As the location of the sign is not changing, clause 3.2.3(b) of the Advertising Guidelines which deals with sign placement is not relevant to the Modification Application.
[5]
The Council's submissions
The Council's submissions in relation to road safety may be summarised as follows:
1. The Proposed Sign, in particular with its changing advertising content every 10 seconds, is an unacceptable risk to the safety of road users travelling south on the Pacific Hwy and west on Boundary St.
2. The position of the existing billboard is contrary to the Advertising Guidelines which state that an advertising sign should not be located less than the safe sight distance from an intersection or other "decision making points or conflict points" and that the placement of a sign should not distract a driver at a critical time.
3. The intersection of the Pacific Hwy and Boundary St carries a large volume of traffic and is a "fairly complex" intersection with several conflict points which require drivers to make several important decisions within a short space of time.
4. Given those matters, the change from a static vinyl billboard to a digital billboard with changing content every 10 seconds presents an unacceptable risk to the safety of road users because of the likelihood or possibility that it will distract drivers due to the constantly changing advertising messages displayed.
[6]
Transport's submissions
Transport argues that Sch 5 of the Industry SEPP identifies particular criteria in relation to road safety being:
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?
Transport contends that the Proposed Sign will distract road users at critical times and that the proposed minimum dwell time for the digital sign will also cause an unacceptable distraction to road users.
Transport's primary issue is that the Proposed Sign will reduce safety for the users of a public road at a significant and high volume intersection. It says that it reduces safety because it introduces the realistic chance for distraction at a complex intersection. The intersection is complex because of the number of decisions that need to be made by a motorist, many of which it says are contrary to common assumptions. The opportunity for distraction is greatest when a westbound motorist on Boundary St perceives the sign directly behind the overhead signals. Any changing of the sign or dwell time is unacceptable because it creates the opportunity for distraction, no matter when the change happens. It is the change which Transport says has the capacity to distract motorists and reduce safety at this complex intersection.
[7]
Findings on road safety
For the reasons I have given earlier in this judgment, I reject the Applicant's submission that I am only entitled to take into account the impacts of the Proposed Sign to the extent that they are greater than those of the Existing Sign. The decisions in Michael Standley and 1643 Pittwater Road, in my view, are clear authority for the proposition that in the determination of a modification application the consent authority is required to consider any s 4.15 matter relevant to the whole development as modified and that this is not limited to any additional impacts resulting from the modification.
While the Industry SEPP and the Advertising Guidelines do not apply so as to impose mandatory requirements or considerations, they are relevant to the extent that they provide guidance on the potential impacts of advertising signs on road safety. In fact, it seems to me that many of their provisions are little more than statements of common sense (such as pointing out the importance of minimising driver distraction near decision making and conflict points).
I accept the evidence of the two respondents' experts, which corresponds with my own observations during the site inspection, that the intersection of the Pacific Hwy and Boundary St is a busy and complex intersection with numerous decision points and that drivers are required to utilise high levels of concentration to negotiate the intersection safely. Drivers travelling southbound on the Pacific Hwy experience three southbound lanes with an additional left turning lane into Boundary St. Drivers travelling westbound in Boundary St have two traffic lanes up to the railway bridge; they then need to decide whether to stay in one of the two existing lanes to turn left onto the Pacific Hwy or merge into one of two additional right hand turning lanes to vehicles or proceed across the offset intersection to Corona Ave. I accept Mr Farrelly's evidence that, during busy periods, cars turning north onto the Pacific Hwy can form long queues extending beyond the dedicated turning lanes. The left turning lanes also have traffic turning into the service station on the corner of the Pacific Hwy and Boundary St. All of these things combined, in my view, make this a complex intersection for drivers to negotiate.
I find that the presence of an advertising sign, the clear purpose of which is to draw attention to itself, at this busy intersection is likely to distract the attention of drivers travelling westbound on Boundary St and, to a lesser extent, of drivers travelling southbound on the Pacific Hwy. In my view, the Proposed Sign, with a change in the advertisement displayed every 10 seconds, will increase the level of distraction to those drivers above and beyond that which results from the Existing Sign. In this regard, I accept the evidence of the Council's traffic expert, Mr Farrelly, that the Proposed Sign will be more "conspicuous" than the existing sign, by which I understand him to mean that the changing of the sign will itself attract the attention of drivers. I also note that clause 3.3.2 of the Advertising Guidelines states that "Signs which change advertising content are more likely to distract a driver than signs with content that is static" and that clause G.5.3 of the DCP provides that "Advertisements are to maintain satisfactory road safety by avoiding… a. Advertisements within the driver's line of sight at an intersection…". These provisions are a strong indication that the Site is not an appropriate location for the Proposed Sign.
Ultimately, I accept the submission made by both respondents that the Proposed Sign will reduce safety for road users in what is a busy and complex intersection. In my view the Proposed Sign would unacceptably increase the potential for driver distraction and consequently the risk of collisions and for that reason should be refused.
[8]
Visual impact
The Council also contends that the Proposed Sign will have an unacceptable visual impact. Given my findings in relation to jurisdiction and the traffic safety contention, it is unnecessary for me to deal with that issue.
[9]
Conclusion
As I have found that the Proposed Sign is not substantially the same as the development the subject of the Consent, the Court does not have power to approve the Modification Application and the appeal must be dismissed. Even if there had been power to do so, for the reasons given above, I would not have exercised my discretion to approve the Modification Application as to do so would, in my view, result in an unacceptable reduction in safety for road users in this busy and complex intersection.
[10]
Orders of the Court
The orders of the Court are:
1. The appeal is dismissed.
2. Modification Application DA-2021/23 to modify Development Consent DA-86/322 to convert an existing illuminated static advertising sign on the land described as Lot 2 DP 170039 known as 962 Pacific Hwy Roseville to a digital advertising sign is determined by way of refusal.
3. All exhibits are returned with the exception of Exhibits A and C5, which are retained.
…………………………
[11]
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: 28 June 2022
Parties
Applicant/Plaintiff:
Ooh!Media Limited
Respondent/Defendant:
Willoughby City Council and anor
Cases Cited (13)
Jurisdictional prerequisites
The Modification Application indicates that the type of modification proposed is a modification in accordance with s 4.55(2) of the EPA Act. Before I can determine the modification application, I need to be satisfied about the matters raised by subs 4.55(2)(a)-(d). Those matters are:
(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.
Section 4.55(2)(a) of the EPA Act imposes an express statutory limitation on the consent authority's power to modify a development consent. A consent authority can only modify a development consent if 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.
Neither respondent contends that the development as proposed to be modified is not substantially the same development as the development for which consent was originally granted. However, the Court's jurisdiction to modify the Consent depends upon it reaching the requisite level of satisfaction and it is therefore appropriate to deal with this issue at the outset.
On the Court's invitation, the Applicant provided a set of written submissions specifically addressing the "substantially the same" issue on 4 May 2022. The Applicant submits that the development as proposed to be modified will be substantially the same as the development originally approved because it "will comprise a static billboard using a digital display (even though the advertising will change periodically) when compared with the static printed billboard that was already approved on the subject site". The Applicant submits that there are only three "real" changes effected by the Modification Application:
1. The sign will be internally lit rather than backlit, which the Applicant says is immaterial in terms of any change in impact of the sign where:
1. the digital sign utilises inbuilt sensors that automatically dim the signage to suit the ambient lighting conditions so that the sign will have a similar daytime appearance and associated luminance to the Existing Sign;
2. during night time operation the Applicant is prepared to accept a limitation that the sign will be no brighter than the illumination of the Existing Sign at night; and
3. unlike the vinyl sign, the digital sign will not be visible at all beyond a 160 degree angle;
1. The sign will be capable of changing every 10 seconds (the "dwell time") with a 0.1 second transition time, but it will still remain a static advertisement like the Existing Sign and not one that involves animation, video, flashing, scrolling, flickering or other movement. These parameters for the digital sign comply with the Advertising Guidelines; and
2. The finish of the signage with a black cabinet and skirt. This, it says, is simply a modernisation of the Existing Sign to make it appear clean in line with contemporary standards.
The applicable legal principles governing the exercise of the power contained in s 4.55(2) of the EPA Act were summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Westlime) at [173] as follows:
"(1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440);
(2) the modification power is beneficial and facultative (Michael Standley at 440);
(3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]);
(4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8);
(5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]);
(6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]);
(7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]);
(8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik);
(9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and
(10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])."
Section 4.55(2) of the EPA Act requires the Court to form the positive opinion of satisfaction that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted. In Arrage v Inner West Council [2019] NSWLEC 85 ('Arrage') (at [27] to [28]), Preston CJ observed that in most cases the most instructive (but not the only) way to identify whether the modified development is substantially the same as the originally approved development is to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required.
I cannot accept the Applicant's submission that the development as proposed to be modified will remain substantially the same as the development originally approved. What is proposed by the Modification Application here does not involve the modification of the existing vinyl sign but, instead, its replacement with a new and essentially different type of sign. In my view, the Proposed Modification will involve a "radical transformation" of the Existing Sign and the advertising sign as proposed to be modified will not be "essentially or materially having the same essence" as the Existing Sign. There is, in my assessment, an essential difference between the existing static sign, which consists of a metal frame with tensioned vinyl advertising copy replaced manually every 28 days and the proposed digital sign, which will comprise a steel cabinet housing a digital LED screen with advertisements changing every 10 seconds. The Proposed Sign is not unlike a very large LED television and the difference between the Existing Sign and the Proposed Sign is, in my mind, analogous to the difference between a painting or poster, on the one hand, and an LED television, on the other. While they may each display an image they are, on any view, fundamentally different.
I accept that the Proposed Sign will be of a similar size and orientation as the Existing Sign but this does not change my opinion that the Proposed Sign is essentially different to the Existing Sign for the reasons given above.
I also do not agree with the Applicant's submission that it is immaterial that the sign will be internally lit rather than backlit. This in my view is a significant qualitative difference between the type of sign that is the subject of the Consent and the type of sign proposed by the Modification Application.
While the development both before and after the modification will remain an advertising sign, I am conscious of the caution given by Pepper J in Westlime (referred to above) of falling into the trap of finding "that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development". For the reasons given above, I have concluded that the Proposed Sign is qualitatively, essentially and substantially different to the Existing Sign. I am not satisfied that the development to which the consent as modified relates will be substantially the same development as the development for which consent was originally granted, as required by s 4.55(2)(a), and it follows that the essential precondition to the exercise of the power to modify the Consent is not satisfied and consequently that the Court does not have the power to approve the Modification Application.
In relation to the other jurisdictional pre-conditions contained in s 4.55(2):
1. The Modification Application does not propose the modification 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. Section 4.55(2)(b) therefore does not apply.
2. The Council's Statement of Facts and Contentions (Ex C1) indicates that the Modification Application was publicly notified by the Council to adjoining and adjacent property owners in accordance with the Willoughby Community Participation Plan between 18 February 2021 and 11 March 2021. The Council received three submissions which raised concerns about traffic safety and visual amenity.
3. In accordance with s 4.55(2)(d) of the EPA Act I have taken the submissions received by the Council into consideration in determining the Modification Application.
While I have found that the Court does not have jurisdiction to approve the Modification Application, as I have also concluded that the Modification Application does not merit approval because of its likely adverse impact on traffic safety, it is appropriate to set out the evidence and my findings on that issue.
The reasons for the grant of consent
A copy of the Consent is attached to the Statement of Environmental Effects (Ex A, Tab 5). The Consent does not set out any reasons for the grant of the Consent and there are therefore no reasons for the Court to take into account in determining the Modification Application: see Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116 per Robson J at [70] to [71].
Section 4.15(1) - consideration of relevant matters
There was no real disagreement between the parties that the relevant s 4.15 matters for consideration in this appeal fall into two areas. One concerns the impact of the Proposed Sign on road safety. Both respondents contend that the Proposed Sign will have an adverse impact on road safety and that the Modification Application should therefore be refused. The other issue concerns the impact of the Proposed Sign on visual amenity. That issue is relied on only by the Council.
Each of these merit issues properly arises for determination in this appeal having regard to the matters referred to in s 4.15(1) of the EPA Act. The Applicant submits, and I agree, that s 4.55 of the EPA Act constitutes a complete source of power to modify a consent: see SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 (at [31]). It necessarily follows that the provisions of environmental planning instruments which address road safety and visual impact must not be read in the present appeal as imposing mandatory requirements that must be satisfied before the Modification Application can be approved. Those provisions should instead be read, to the extent that they are relevant, as matters for consideration in the determination of the Modification Application.
The Applicant also submits that the issues of road safety and visual amenity are only relevant to the extent that they relate to the impacts of the Proposed Sign and that the Court cannot take into account impacts that arise from the Existing Sign. In this regard the Applicant submits that "the Respondents and their experts repeatedly take issue with aspects of the Existing Sign that have already been approved or impacts that are not associated with the change from a printed to digital billboard": Applicant's Opening Submissions, par [12].
I do not accept that submission. The proper approach to the consideration of relevant s 4.15 matters under a predecessor provision to s 4.55(3) of the EPA Act (being the former s 102(3A)) was explained by Mason P (with whom Sheppard AJA agreed) in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 (Michael Standley) (at 476-477) in the following terms:
"The respondent submitted that s102(3A) cannot mean that the whole of the original development is opened up for reassessment under s90. This submission appears to adopt the prevailing view of the subsection in the Land and Environment Court: see The Uniting Church in Australia NSW v Woollahra Council (Stein J, unreported, 25 May 1995); Crawley v Sydney City Council (Bignold J, unreported, 4 October 1995). In my respectful view, subsection (3A) is not so confined. The critical words are "such of the matters referred to in section 90 as are of relevance to the development the subject of the application " (emphasis added). Had the subsection used the word "modification" in place of the word "development" then it would have been quite different. But, with respect to those who see it otherwise, I find this to be a very plain subsection. The consent authority is directed to consider any s90 matter relevant to the whole development as modified. This is the plain meaning of the provision, and it offers a principled way for limiting the dangers of the "creep factor" to which reference has already been made.
The contrary argument seems to treat the existing consent, whether original or modified, as if there were some issue estoppel with respect to those portions which are not directly affected by the modification application. But there is no justification for such a cramped approach, which is capable of producing an unrealistic and potentially unreasonable outcome. A consent authority is not to be equated with an administrative tribunal deciding a dispute inter partes (cf Lambidis v Commissioner of Police (1995) 37 NSWLR 320). In my view the respondent's approach to s102(3A) is cramped because of the textual and contextual reasons offered in the previous paragraph. And it is unrealistic and potentially unreasonable because a particular development may have to be viewed as a whole before its impact upon the amenity of a neighbourhood can possibly be gauged. For example, a modification which introduces greater usage of a high rise development may necessitate additional lift facilities. It would be unrealistic to consider the modification if hamstrung by the existing consent's provision for lifts. A fortiori if Benalup is correctly decided and if it stands for the broader of the two propositions for which it is said to be authority. It is true that the consent authority might choose to reject the proposed modification, but a purposive approach to the power suggests that it should not do so unless and until its full impact is viewed against the backdrop of all relevant s90 factors. The same point can be demonstrated by reference to the potential evils of the "creep factor" argument raised earlier in a different context. The construction of subsection (3A) which I have espoused offers a principled way of addressing the situation presented by successive modifications that gradually increase the height of a building in a way that is substantial when the original approval is compared with the development embodied in the latest modification proposal. In my view the consent authority is permitted, indeed bound, to assess the environmental impact of the cumulative effect of prior modifications when addressing the latest modification application. In doing so, it does not need to first stop and satisfy itself that the s90 factors touch the development to the extent that it is modified."
The Applicant argued that the approach taken by Mason P in Michael Standley is inconsistent with the decision of McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 (1643 Pittwater Road) and that I am bound to follow his Honour's judgment in the latter decision. However, I am unable to see any relevant inconsistency between the two judgments. McClellan CJ, in my view, accepted the ability of a consent authority to take into account any adverse impacts associated with the existing development when considering an application to modify that development. While his Honour correctly, with respect, pointed out that such considerations could only result in the refusal of the modification application and that this would leave the original consent standing, his Honour expressly acknowledged that the consent authority is required to consider any s 4.15 matter relevant to the whole development as modified:
"[44] Mason P was of the view that when determining an application to modify a consent, the consent authority "is directed to consider any s 90 matter relevant to the whole development as modified" (at LGERA 441). This, his Honour held, included an opportunity "to repent of an earlier decision in the light of a political change of will" (at LGERA 442). Although not stated, I do not understand the President to be suggesting an unconfined capacity to repent. The constraint is, of course, found in the nature of the application being considered. That application, being for approval for a modified consent, could be refused in which event the original consent remains. If approved, the project must still be a development which is "substantially the same" as the original approved development.
[45] …
[46] The construction which the learned President gives to s 102(3A) is obviously apposite to s 96(3). The same formulation - such matters "as are of relevance to the development" - has been used in the replacement section. Accordingly, although obiter, the reasoning of Mason P, with which Sheppard AJA agreed should, in my opinion, be followed unless I am persuaded that it would be erroneous to take this course.
[47] …
[48] Because, as I have indicated, Mason P must be understood as defining the powers of a consent authority when dealing with a modification application, the power to refuse must be confined to the power to refuse that modification application. It could not extend to a power to refuse the original application, which is a matter not raised for consideration. Although the power to approve would include a capacity to approve the modification application, including the imposition of any conditions, it must nevertheless continue, although modified, to be "substantially the same development."
[49] …
[50] …
[51] Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration. If an application is made to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case, extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise. I do not understand the President to be suggesting otherwise.
[52] …
[53] …
[54] It is apparent that the reasoning of the President in Michael Standley would more readily provide for the power which the Council exercised in the present matters. An application to modify the consent having been made, the Council, when considering that application, could reconsider, at least relevant elements of the original consent and, if it perceived a need to cure a problem, which may not have been apparent previously but now is, impose a new condition."
What both Michael Standley and 1643 Pittwater Road, in my view, make clear is that, in considering the Modification Application in this appeal, I am required to consider the impacts of the Proposed Sign on both road safety and visual impact and that these impacts are not confined to impacts that might be said to be additional to the impacts of the Existing Sign. (Emphasis Added.)