Outdoor Systems Pty Ltd v Georges River Council

Land and Environment Court (NSW)|2021-04-23

Judgment

COMMISSIONER: Modification Application MOD2019/0196 (MA), as lodged with Georges River Council (Council), pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), seeks consent for modification of approved advertising signage at Lot 5 DP 771209, known as 519 King Georges Road, Beverly Hills (site).
The statutory particulars of the modification and the original consent are among the issues in dispute. But the Applicant's overall intention was to replace current printed advertising signs, sitting on a structure at the top of an existing commercial building, with digital signage.
The Applicant has appealed under s 8.9 of the EPA Act against the refusal of the MA by Council.

Legislative setting

Sections 4.55(2) and (3) of the EPA Act provide the source of the modification power of pertinence here, as well as the framework for evaluation of a modification application: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

Issues

There is a threshold issues as to whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. That is, whether the power to modify the consent under s 4.55(2)(a) of the EPA Act is available in this instance.
There are also questions of merit. I note the site is zoned B2 Local Centre under Hurstville Local Environmental Plan 2012 (HLEP). While I have given consideration to HLEP, including the zone objectives, I would say guidance on the merits questions in this matter, principally relate to the considerations of State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) and Hurstville Development Control Plan No 1 (HDCP).
I note that the proposal was referred to Roads and Maritime Services in accordance with cl 18 of SEPP 64, which raised no objection subject to certain nominated conditions which are included in draft conditions submitted by the parties (without prejudice on Council's part).
I start with the consideration of the jurisdictional threshold in regard to s 4.55(2)(a) of the EPA Act. This takes me into the merits questions. There is then a need to consider further some statutory issues, which I do before drawing conclusions.
I will note here that the experts providing evidence to hearing were as follows: Expert Expertise For C Blyth Town planning Applicant L Love Town planning Council R Sharmier Lighting Applicant J Sawras Lighting Council

The substantially the same development question

A key issue behind this question is the fact that the proposal involves digital signage which, of course, involves illumination. The existing signage is presently floodlight. However, it is contested whether there was ever any approval for this existing illumination.
Council argues that the development for which consent was originally granted was not for illuminated signage, and that as the MA involves digital lighting it could not be seen as substantially the same.

Development for which consent was originally granted - including consideration of whether it involved floodlit or illuminated signage

The particulars of the development for which consent was originally granted are contested. I outline my understanding of the facts below.

Development application DA 354/95

The original development application is referenced as DA 354/95. The first page of the development application (DA) form was tendered into evidence (behind Tab 7 to Council's bundle of documents (Ex 2)). The date on the DA form is 24 July 1995. The then applicant was "Urban Outdoor". The DA form required a description of the "proposed development". The response on the form is: "Advertising roof sign (illuminated). 12.6x 3.3 metres with surrounding architectural structure"
The DA form also requested information on "Plant/Machinery to be installed …". The response on the DA form is: "External flood lights"

Council's letter of 15 July 1997

On 15 July 1997, Council wrote a single page letter to the then applicant. The letter is reproduced in part at Fig 1. Figure 1 - Council letter of 15 July 1997 to applicant for DA 354/95 (Source: Ex 2, Tab 8)
The Applicant in the proceedings now before me submits that this is the original development consent (Applicant's (written) Submissions dated 22 April 2021 (AWS), par 2), as a deferred commencement consent. It points to the heading to the letter referencing "deferred commencement" and the letter's reference to "proposal" as: "advertising roof sign (illuminated)". The Applicant also points to the second paragraph of the letter indicating that the DA has been "determined" by Council "by the granting of "deferred commencement" consent" under the provisions of s 91AA(1) of the then EPA Act. The Applicant also noted the direct reference to consent "for the erection of an illuminated advertising roof sign, subject to the following requirement…".
Council suggested that due to the wording of what I will call the "matters to be satisfied" as prerequisites for the lifting of the deferred status (ie steps required to make the consent operational), the above determination was better understood as approval for staged development. The wording of the matters to be satisfied is reproduced below: "That the applicant lodge detailed plans showing the proposed wording and colour schemes and Council's approval of the overall signage strategy of which this application is a part".
Council saw two parts to these matters to be satisfied. The first part required action of the then applicant, that is the lodgement of more detailed plans. The second part was concerned with Council's finalisation of the "overall signage strategy", something outside the hands of the then applicant (Respondents Outline of Closing Submissions dated 23 April 2021 (ROCS), par 12). In separate evidence (Report to Policy Planning and Environment Committee dated 25 June 1997 (Ex 7)), it was demonstrated that then Hurstville Council was in the process of preparing a Signs Strategy for Beverly Hills Town Centre.
I agree with Council that the wording relating to this second matter to be satisfied does not align with the expected operation of a deferred commencement consent under s 91AA(1) of the then EPA Act. Matters to be satisfied are understood as matters concerning which an applicant must satisfy a consent authority. That is not what is occurring with the second matter to be satisfied. This setting does suggest to me some uncertainty in regard to what might be taken from Council's letter of 15 July 1997. It seems to me I do not need to rely overly on this letter, or engage with the Council's suggestion in regard to staged development, because of my conclusions in regard to the letter which followed it.

Council's letter of 18 November 1997

On 18 November 1997, Council again wrote to the then applicant (Ex 2, Tab 9). This letter also gives notice of the determination of DA 354/95. There was no mention of the letter of 15 July 1997. The proposal is described as "Advertising Sign" (rather than "advertising roof sign (illuminated)" as it was in the letter of 15 July 1997. The determination was under delegated authority and consent was granted subject to four conditions. Conditions 1 and 4 are particularly pertinent, as follows: "(1) Compliance generally with drawing C03762-A01 dated August 1997, and documentation submitted with DA 354/95 except where amended by the conditions of consent. (2) All three panels of the sign must be filled with identical "Foxtel" signs, ensuring that the sign is "filled" each panel as clarified in Attachment No. 1. (3) The words "Beverly Hills" or "Welcome to Beverly Hills" must be limited to the upper central panel only as shown in Attachment No. 1. (4) The use, display or affixing of any flashing, animated, moving or revolving illumination or lighting is expressly prohibited in, upon or attached to any part of the subject premises."
Drawing C03762-A01 dated August 1997, referenced at Condition 1, was tendered into evidence (Ex 1, Tab 10). "Attachment No. 1", referenced at Condition 2, was also tendered (Ex 1, Tab 9).
I note there was a modification to the consent to DA 354/95 approved on 8 September 1998 (Ex 2, Tab 11), however in my view nothing turns on this.
There is a contest about the intention of abovementioned Condition 4. A summary of the contest, prepared by Council, was useful for me, which I paraphrase below (ROCS, par 24): "On the Applicant's case the descriptive words "flashing, animated, moving or revolving" qualify each of the nouns in "illumination or lighting". On Council's case: a. the words "flashing, animated, moving or revolving" qualify "illumination", so that- i. the use, display or affixing of any flashing, animated, moving or revolving illumination is expressly prohibited in, upon or attached to any part of the subject premises, and ii. the use, display or affixing of any lighting is expressly prohibited in. upon or attached to any part of the subject premises; b. alternatively, … (an illuminated advertising sign) offends Condition 4 because it involves a moving or revolving illuminated use/display attached to the subject premises, albeit "of one static message at a time combined across the two remaining panels which become a single digital screen", because "the message will change at the appointed dwell time often (10) seconds"."

Finding in regard to development for which consent was originally granted

The central point of dispute was whether the development for which consent was originally granted included floodlighting or illumination.
Council makes the point that neither of the plans referenced in Conditions 1 (drawing C03762-A01) or Conditions 3 and 4 ("Attachment No. 1") make explicit reference to lighting or illumination. However, I am not convinced that this is telling. Of some assistance to me here was the content of the Council report at Ex 7. I refer here particularly to the following two paragraphs: "It is now considered that the concerns raised in the assessment of the application two years ago no longer present a major concern given the current signage concept for Beverly Hills. The "in principle" approval of this component of the overall signage strategy will enable this development application to be determined, thus providing the applicant with a clearer direction the signage on this critical intersection. The applicant requires some level of assurance in relation to the direction that they are taking with respect to the proposal. This has not been able to be provided until the signage package for Beverly Hills has been complete. It is now recommended that a "deferred commencement" consent be granted subject to the condition that the applicant provide detailed plans outlining the proposed wording and colour schemes."
Drawing C03762-A01 seems to show the size of the proposed signage along with the colour scheme, something Ex 7 suggests was required by Council. The "Attachment No. 1" plan shows wording, again in alignment with Ex 7. Indeed these two plans do also align with the matters to be satisfied in Council's letter of 15 July 1997.
The content of drawing C03762-A01 or "Attachment No. 1" to the DA 354/95 consent conditions, do not tell me anything about the proposed floodlighting or illumination of the approved signage, nor do they need to, given their apparent purpose.
There are some deficiencies in the line of sight between Council's deferred commencement letter (15 July 1997) and what might be thought of as, at least, the notice of an operational consent (18 November 1997). However in the 18 November 1997 consent notice, the explicit reference to the original DA lodgement documentation ("Compliance generally with … documentation submitted with DA 354/95") which itself included clear reference to intended floodlighting and that the signage would be "illuminated", does place considerable weight on Condition 4, noting that any particulars of the original DA 354/95 would be "amended" by it.
Having considered the submissions of the parties, I favour the Applicant's position. It seems to me that a plain reading of Condition 4 suggests it is concerned with restricting a certain type of illumination or lighting: that which is "flashing, animated, moving or revolving". If Condition 4 were seeking to restrict lighting or illumination more generally, then it would be reasonable for it to say so in a straightforward manner. For example, by saying "the use, display or affixing of illumination or lighting is expressly prohibited …". This suggests to me that Condition 4 is seeking to restrict lighting or illumination beyond that proposed with documentation submitted with DA 354/95. Were it seeking to do otherwise, a more direct reference to the change from DA 354/95 might also be expected. I therefore am of the view that the development for which consent was originally granted included illumination.
Beyond this, I see agreement between the parties that the development for which consent was originally granted involved, essentially and with the first modification, the development which can be observed on the site now, with three signs wrapping around and generally aligned with the existing building, albeit sitting above. The signs are now illuminated by floodlighting, although it was not clear from the evidence for what hours through the night. I will also mention here that there also seems to be a significant difference between the dimensions of the signage indicated in the documentation submitted with DA 354/95, suggested as "12.6x 3.3 metres" [13], and that finally approved in the notice of 18 November 1997, and eventually constructed. Drawing C03762-A01 dated August 1997, as referenced in the notice of 18 November 1997, shows signage wrapping around three sides of the building. This seems to align generally with what presents today and submitted by the Applicant to be dimensioned at 25.32 m x 3.292 m (AWS, par 3).

The development to which the consent as modified relates

The modification application form, as submitted to Council, provided for the following: "Conversion of existing advertising sign to digital with 50% less impact than current sign"
The Applicant's Statement of Modification and Environmental Effects (tendered within Ex A) provides further explanation as follows: "This (MA) seeks consent to modify the approval in the following manner: Remove the existing west facing 12.66m x 3.292m advertising panel and paint the area black, this advertising face will no longer be used for advertising Replace the existing north and north-west facing panels with a single digital LED screen with dimensions 12.435m x 3.292 m with a total area of 40.94m² Provide a new internal walkway at the base on the proposed digital panels. … The proposal will display one static message at a time combined across the two remaining panels which become a single digital screen. The message will change at the appointed dwell time of ten (10) seconds as per the Transport Corridor Advertising and Signage Guidelines. The signage is not animated nor does it move or flash in any way in consistency with previous approvals for the site". … A ten second dwell time is proposed between static displays with a transition time of 0.1 seconds between images."
I note that Council disputes the applicant's description that the proposed signage "is not animated nor does it move or flash in any way in consistency with previous approvals for the site".
The plans accompanying the MA confirm that it would be the north-east and north-west faces (currently comprising static signage panels with dimensions of about 12.6 m x 3.3 m) which would be replaced with digital screens; and that the third, west facing, static signage panel would be decommissioned and painted black.
In describing what is proposed it is necessary for me to factor in certain performance parameters, including in regard to the proposed intensity of illumination proposed from the digital signage. These parameters essentially align with the agreed findings of the illumination experts providing evidence in the proceedings (Ex 4 and 8). While there is more to it, I do understand the modified signage and its associated content as being required to meet the current edition of AS/NZS 4282:2019 Control of the Obtrusive Effects of Outdoor Lighting and the Transport Corridor Outdoor Advertising and Signage Guidelines (Department of Planning and Environment, November 2017).

Whether the development as modified would be substantially the same development

The comparative task I need to undertake here is understood from Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto Projects) [54]. For the modification power to become available, it requires a finding of fact, by me, that the development as modified is substantially the same development as the development for which consent was originally granted.
The parties also took me to Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Agricultural Equity), where Pepper J at [173], helpfully outlined legal principles governing the exercise of the power contained in s 4.55(2) (which provides the exact same provisions as s 96(2) of the then EPA Act which was the direct point of attention in Agricultural Equity). I reproduce the principles as follows: "(1) …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])."
Council's submissions relied substantially on an argument that the development for which consent was originally granted did not include floodlighting or illumination. I have found above against this submission above.
In reading both Council's written closing submissions and the evidence of Ms Love (Ex 3, p 5-6), I understood Council's further arguments to be concerned with two main themes. First, that even with floodlighting, the development for which consent was originally granted did not involve the same extent of 24 hour visibility. The point here was the increased visibility of internally lit digital signage, at night but also through the day and from wider afield. Second, that the signage was of a different class or "served a different purpose" (Ex 3, p 5). The point here was the difference between a static printed sign which was relatively infrequently replaced (among other things given the physical task involved) to one which was "changing its message/display after the appointed dwell time of ten (10) seconds 24 hours per day with the exception of school hours" (RCS, par 34)". The sign was seeking to attract new attention every ten seconds, a different purpose from a static sign.
I understood that together these themes were seen by Council to result in an increased "advertising saturation" and in turn a radical transformation (mindful of Principle 7 to Agricultural Equity [173]). There was both a quantitative and qualitative intensification of the development, according to Council, referring to Moto Projects at [56]: "The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)."
While there is much more in the way of the particulars (mindful of Principle 4 to Agricultural Equity [173]), the Applicant's argument is, essentially, that the modification provides for "a simple modification application", in that it proposes "to replace two of three existing "printed" advertising panels with a single digital LED advertising panel (and to decommission the third, west facing, advertising panel)" (AWS, par 1).

Merits consideration related to factual finding on substantially the same development question

In the resolution of the questions of fact and degree involved in the finding as to whether the modification power at s 4.55 of the EPA Act is available, it seems to me useful and also efficient to work through the merits evaluation of the proposal. That is not to say the merits question and finding relating to the "substantially the same development" question are the same. They are clearly not. But in this case, to evaluate the substantive points raised by Council, that a radical transformation is involved due to the quantitative and/or qualitative advertising intensification and providing for a setting of advertising saturation not existing now, it is useful to look at the expert evidence in regard to merits. The efficiency is in that, given my ultimate findings of support for the proposal, it also allows the merits evaluation of itself.
I will return to the jurisdictional threshold as to whether the modification power at s 4.55 of the EPA Act is available in my conclusions.

Merits considerations

The particulars of the policy provisions framing the merits issues are contained within SEPP 64 and HDCP. There is considerable overlap between the two. The issues can be summarised as: (1) residential amenity impacts, (2) local character impacts and (3) public interest concerns. As indicated above, the evaluation of these merits issues also assists in appreciating the quantitative and qualitative aspects of the "advertising intensification" and whether the modification proposal involves a radical transformation or merely "(alteration) without radical transformation" (Principle 7 to Agricultural Equity). These issues are addressed in turn below. But first I need to consider two issues in regard to the scope of the evaluation against policy.

Whether the proposal is wall advertisement or a wall sign

Clause 22(2) of SEPP 64 provides certain constraints relating to the size of wall advertisement. There are also controls relating to wall signs in HDCP. There was a dispute among the parties whether the signage constituted wall advertisement or a wall sign.
Clause 4 of SEPP 64 defines "wall advertisement" as follows: wall advertisement means an advertisement that is painted on or fixed flat to the wall of a building, but does not include a special promotional advertisement or building wrap advertisement.
The signage is now and would in the future be placed upon on a purpose-built structure on the roof of an existing building. So much is clear from the original application [18] and the approval plans (drawing C03762-A01 dated August 1997, which indicates the proposed structural members). The sign is not a wall advertisement.
The Applicant referred me to the definition of "advertising structure" at cl 4 of SEPP 64, and it certainly involves that. While there was no opportunity for examination of this in the hearing, and I see it of limited relevance, I think the signage is better understood as "roof or sky advertisement", which according to cl 4 means: an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.
Similarly, I do not believe HDCP provisions relating to wall signs apply, as the signage is not a wall sign.

General note on scope and limits to evaluation

The Applicant raised concerns that Council, including through its expert evidence, "repeatedly take issue with aspects of the advertising structures that have already been approved (and constructed)", which was seen to be beyond the scope available to an evaluation (AWS, par 32). The Applicant referred to the findings of McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 (1643 Pittwater Road) which also concerned a modification application.
The findings of 1643 Pittwater Road (particularly in consideration of [50]-[51]) suggest to me that while the evaluation here is concerned with the impacts of the signage modification (rather than a kind of wholesale re-appraisal), the matters raised by this application may well have some association with the pre-existing development. That is to say, the evaluation of the MA needs to be considered in its context.
I agree with the Applicant that the fact of the proposal as a modification application means that, under s 4.55(3) of the EPA Act, there is (only) a need to "take into consideration" relevant environmental planning instruments. This means that otherwise potential jurisdictional barriers under SEPP 64 which might present to a (new) development application (such as those involving cl 4 were the proposal "wall advertisement", or cl 21 given my interpretation of the proposal as "roof or sky advertisement", or cl 13 and its requirement for consistency with the objectives of SEPP 64 more generally), are matters for consideration, only, for me in regard to this application for modification.

Amenity impacts

The aims of SEPP 64 include ensuring that signage is compatible with the desired amenity. In regard to HDCP (clause DS2.2 and clause DS2.7 of Section 5.5), concerns are in regard to detrimental impact on nearby residential areas or pedestrians, and general visual amenity impact in the locality.
The evidence from the lighting specialists was in agreement that the proposed digital signage would result in an improvement to the obtrusive lighting outcome over the existing floodlight signage. This was in terms of vertical illuminance to nearby residential properties and in regard to glare to traffic (Ex 4, p 3). Conditions were recommended in regard to the control of lighting levels (a maximum night-time luminance limit of 250cd/m2) and confirmatory reporting requirements.
As I have raised earlier, Ms Love believed that the modification would have greater and different impacts than the existing sign on the visual amenity of the locality due to the electronic form of the signage, the changing nature of the displays, and the different colours and forms of displays for different advertisements, day and night and including from wider afield. The residential area fronting Warrawee Place to the north of Beverly Hills station, 500-600m north of the site, was cited as an example of areas where a new kind of impact from more intrusive sign imagery would be experienced.
Mr Blyth emphasised the reduction in total area of the signage, especially the removal of the western signage which was oriented towards nearby residential properties at present. He did not believe there would be any change experienced from the more distant residential properties.

Local character impacts

The aims of SEPP 64 include ensuring that signage is compatible with the visual character of an area. The concerns of relevance in Schedule 1 (of SEPP 64) include whether the proposal is "compatible with the existing or desired future character of the area or locality" and whether the proposal would "dominate the skyline and reduce the visual quality of the catchment". In regard to Section 5.5 of HDCP, Council issues include: (1) clause DS2.7 concerned with appropriateness in the streetscape, setting or landscape and "not dominating in terms of scale, proportion and form", (2) clause DS2.8 and concerns with digital signage dominating the building, and (3) clause DS2.9 and concerns with cumulative impact of multiple signage in the vicinity and that the proposal is out of context.
Ms Love believed the digital nature of the sign increases the ability to view the sign from a distance and that more people will view the sign, particularly at night. The digital nature of the proposed sign will be visually intrusive, dominating the skyline at night viewed against a black night sky. It would also dominate the presentation of the building and be dominant in the location. Removal of the west-facing signage (ie to the nearby residential areas) would not reduce the visual intrusion of the now illuminated north facing signage.
Mr Bligh argued that the existing signage is part of the existing character and a change from printed signage to digital technology ("contemporary presentation" (Ex 3, p7) would not have an adverse effect in regard to local character compatibility. Again, he thought the cumulative impact of signage would be reduced because removal of the western panel represents a 51% reduction in signage approved in DA 354/95.

Consideration

The agreed evidence of the lighting experts is important in regard to amenity impacts. I accept their shared evidence that the modification would provide an improved obtrusive lighting outcome over the existing signage to nearby residential properties and in regard to glare to traffic, and that it can both comply with the obtrusive lighting standards now, and that a system for ongoing monitoring of compliance is proposed. It is obvious that the removal of the western signage, an orientation involving sightlines for nearby residential properties, would reduce the visual amenity impacts the existing signage has on those properties.
Ms Love's amenity-related concerns relating to the changing nature and the different colours and forms of displays has some parallels to the concerns raised regarding local character, and I will consider these together.
Overall, it is my finding that Council's evidence in regard to the modification bringing about a radical transformation is overstated. Mr Blyth's description that the proposal provides for a contemporisation of the existing signage has considerable resonance. The practical efficiencies in regard to changing signage messaging to the proposed digital form, over the physical work associated with printing and placement, are obvious.
The fact of the much more regular changes to the signage (up to every 10 seconds) and the modernised lighting (albeit to unobtrusive levels according to the lighting experts) does not seem to me to provide for quantitative and/or qualitative advertising intensification, or a setting of advertising saturation, to the extent that it would be described as a radical transformation compared to what exists now. Rather, the particulars of the proposal suggest to me the modification would be compatible and acceptable in this setting. In referring to the "setting", I mean: (1) the physical locality, given its particular King George Road location towards which the sign in its modified form would be oriented almost entirely (noting the somewhat skewed viewline for westbound traffic along Stoney Creek Road); as well as (2) the site as a place in the contemporary world at large where such immediacy of visual image change is commonplace.
I will not say more about the contemporary (screen-based digital) world which surrounds us all; but in regard to the physical locality, some commentary is required. The change would clearly be less intrusive to the residential areas to the west, as the large floodlit signage along this face would no longer exist. In light of an objecting submission, the modification's lighting was also investigated as to its impact on a potential future redevelopment for residential purposes of the property immediately to the north (ie 507 King George's Rd, directly across Stoney Creek Road). A supplementary joint report by the lighting experts dated 23 April 2021 (Ex 8) found the proposal would meet the relevant "curfew limits" of AS/NZS 4282:2019.
In addition, and having visited Warrawee Place, I am not convinced that the modification would have a significant impact there due to distance attenuation and the interruption in sightlines from vegetation and buildings which was apparent.
More generally, I would see the physical (and target) audience for the signage as principally the travelling public along Georges River Road, mostly driving, but to a lesser extent also the walking public within the commercial/retail/entertainment precinct in the environs (as described in Draft Georges River Council Development Control Plan 2020 (draft GRDCP), p 22 (Ex 2, Tab 19)). There would also be visibility along the Stoney Creek Road corridor east of the site but neither from my site observations of the physical setting, nor through the expert evidence, could I see any likelihood of significant wider visual capture in residential areas.
It seems to me that the proposed changes would fit reasonably comfortably with the existing character of this setting, in today's world. I do note the agreed evidence that there is no particular theming for signage in this environs, here I observe that both the draft Beverly Hills Town Centre Masterplan (Ex 2, Tab 16) and draft GRDCP were drawn into evidence.
I note that Council was also concerned that the proposal would set an undesirable precedent. In Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 (Goldin), Lloyd J gave guidance in relation to the question of precedent, and where it may properly be taken into consideration. Justice Lloyd found, inter alia, as follows [28]: "As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration."
The initial test under Goldin goes to whether the proposal is objectionable of itself (or as put by Sugerman J in Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 "not unobjectionable"). In the case before me, my evaluation is that the proposal is acceptable, rather than objectionable in this particular setting.

Construction of modification application

A concern of Council, was whether the MA was correctly constructed (RCS, par 2): "The modification application did not, on its face, explain how it sought to modify the consent (the words in the chapeau of s 4.55(2)). Rather, it described how it sought to modify or convert the existing advertising sign (ie the development).
For example there was no specificity on what, if any, modification was proposed to "Conditions 1-4 of the consent" (ibid).
I am not so concerned with this, noting Principle 1 of Agricultural Equity [173] and the first legal principle outlined by Pepper J (reproduced at [37] above). It is clear how the consent is sought to be modified, and the draft conditions (without prejudice on Council's part) appropriately encompass the requirements for a consolidated consent.

Conclusion

I have earlier found, and against Council's submissions, that the development for which consent was originally granted did include floodlighting or illumination.
Based on the merits evaluation [42]-[64], I also disagree with Council that the modification would involve, through an increased "advertising saturation" among other things, a quantitative or qualitative intensification of the development to extent that it provided for a radical transformation compared to the development for which consent was originally granted.
I am satisfied that the development to which the consent as now proposed to be modified relates is substantially the same development as the development for which consent was originally granted (and before its subsequent modification). I have also taken into consideration such of the matters referred to in section 4.15(1) of the EPA Act as are of relevance to the development the subject of the MA before me, and as indicated above find favourably. It is normally a requirement to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. There are no explicit reasons given in Council's consent notice of 18 November 1997. However, I take some understanding from the mention of Council having had regard to "the existing and likely future amenity of the neighbourhood" in the consent notice, and the broader background to the consent understood from Ex 7. It is clear from the above that these matters have been taken into consideration.
There was considerable agreement in the draft conditions provided by the parties. One significant point of difference related to whether there should be a limit to the duration of the consent. Council sought that the duration of this consent be limited to a period of fifteen (15) years. This was seen to be in accordance with the provisions of cl 14(1)(a) of SEPP 64. The Applicant opposed, noting that no such duration limitation was in place for the approved signage. I agree with the Applicant that it would not be reasonable to impose a new time limitation upon an approved development given I have already found that the development as modified is substantially the same as it. In coming to this conclusion I have also considered cl 21 of SEPP 64 which also suggests the imposition of time limits on roof or sky advertisements, but draw the same conclusion.
I will note briefly that in its submissions, Council raised my findings in Vodafone Hutchison Australia Pty Ltd v North Sydney Council [2019] NSWLEC 1081 (Vodafone). There I found there was no power to modify under s 4.55(2) of the EPA Act, also in relation to advertising signage change. The essence of that finding related to the construction of the original development consent and the clear intention behind it (Vodafone [45]-[46]). The matter before me here does not align with the findings in Vodafone.
The modification is acceptable, with the suggested conditions, as a contemporisation of the existing signage. The removal of the signage to west, currently in the viewline of nearby residential properties, offsets what might be thought of as a greater prominence of the signage along King Georges Road.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development Consent No. DA 354/95 for an advertising sign at 519 King Georges Road Beverly Hills is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure "A". 3. As a consequence of Order 2, Development Consent No. DA 354/95 as modified by the Court is set out in Annexure "B". 4. The exhibits are returned except for Exhibits A and 1.

Commissioner of the Court Annexure A (169974, pdf) Annexure B (171341, pdf) Plans (108959, pdf)

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: 09 June 2021

(2002) 121 LGERA 101

(1999) 106 LGERA 298

(2008) 166 LGERA 342

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