Outdoor Systems Pty Ltd v Georges River Council

Contentions

1. There were two contentions pressed by the first respondent at the commencement of the hearing: 1. the Amended Modification Application is not substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified; and 2. the Amended Modification Application fails the public benefit test described at ss 4.1 and 4.2 of the Transport Corridor Outdoor Advertising and Signage Guidelines 2017 (Guidelines) and is therefore inconsistent with State Environmental Planning Policy (Industry and Employment) 2021 (IE SEPP).
2. During the hearing, the parties confirmed that the second contention had been resolved and was no longer pressed by the first respondent.
3. Therefore, the only issue in dispute in the proceedings was whether the Amended Modification Application was substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.55(2)(a) of the EPA Act.
4. For the reasons that follow, I have determined that the appeal should succeed and the Amended Modification Application should be approved subject to conditions.

The Site and its context

1. The following is extracted from the SOFAC and TfNSW SOFAC: 1. The Site is on the northern corner of the intersection of King Georges Road and Stoney Creek Road, Beverly Hills. King Georges Road and Stoney Creek Road are classified roads. 2. The Site is zoned E1 Local Centre (formerly B2) under the Georges River Local Environmental Plan 2021 (LEP).

Original Consent

1. The parties agree that the Original Consent approved "Business Signage & General Advertising" at the Site (see Ex 2, p 205). Condition 2 relevantly provided that the "development shall be implemented in accordance with the details set out in the application form, supporting information received with the application and the schedule of plans and details below except as amended by the conditions of this consent" (Ex 2 p 206). The "plans and details below" are listed as Drawing No 15204, "Site plan, elevations and section", dated 13 July 2000 prepared by Barry Smith Bateman & Associates (Approved Plans) (located at Ex 2, p 203).
2. An extract of the Approved Plans, depicting the "elevation from King Georges Road" is reproduced below:
3. There are some inconsistencies and discrepancies between the Approved Plans and Statement of Environmental effects prepared by Planning Overload Pty Ltd dated August 2000 (2000 SEE) which informed, and formed part of, the Original Consent (to the extent it was not inconsistent with the conditions of consent). However, it was not disputed that: 1. the advertising signage component relevantly approved by the Original Consent is depicted on the Approved Plans as "12.6 x 3.350 SIGN BOARD" (Approved Advertising Sign); 2. the Approved Advertising Sign was referred to as "Panel E" in the 2000 SEE, with Panels A, B, C and D relating to business signage (although no Panel "D" could be clearly ascertained from the Approved Plans); 3. for the purposes of understanding the "consent as originally granted" and before it was modified, the Original Consent relevantly approved: 1. Panels A, B and C as business identification signage in the locations and dimensions generally indicated on the Approved Plans; 2. Panel E as third party advertising signage (being the Approved Advertising Sign) in the location and dimensions generally indicated on the Approved Plans with surrounding cladding and messages that "will change from time to time"; 3. the creation of a new parapet atop the existing roof upon which the advertising signs are mounted; and 4. illumination of the Approved Advertising Sign by four 450 watt floodlights projecting from below the panel and thus hidden behind the proposed lower fascia sign (E) (inferred by the first respondent, and which I accept, to likely be a reference to "19.5m x 0.9m Restaurant Signage" on the Approved Plans (also likely known as "Panel C (middle centre)" in the 2000 SEE)).
4. In addition, I note the following relevant conditions of the Original Consent: "3. Sign Lighting - 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. … 5. Amenity - The siting of the signs and any associated lighting of the signs shall not affect the amenity of the neighbourhood or interfere with traffic movements on the adjoining roads."
5. The Original Consent was modified on 26 April 2001 to add further cladding which was said to be deleted from the Original Consent in error, and access grates.
6. A construction certificate application CC202/01 was approved on or about 21 May 2001.

The proposal

1. The form at Ex A, tab 1, describes the proposed modification as the "conversion of the existing static advertising sign to a digital sign". The Amended Modification Application is accompanied by the SEE (see [11] above).
2. Section 2.2 of the SEE describes the existing development as follows: "The existing advertising sign (large format billboard) on the site is recessed into the parapet of the roof and is illuminated with floodlighting. This existing static sign is visible to northbound traffic on King Georges Road and eastbound traffic in Stoney Creek Road only as a result of the orientation of the building and sign on the site which consists of a return wall along the southern elevation, which obstructs other traffic lands from viewing the sign."
3. Section 3.2 of the SEE describes the proposed modification as follows: "The modification application involves the replacement of the existing static signage on a cladded wall with a digital sign, resulting in a contemporisation of the existing signage… Specifically, the proposal comprises: * Removal of the existing static sign and floodlighting; * Installation of a new digital sign measuring 12.4 metres x 3.2 metres (total area of 39.68m2) with cladding to the top and bottom of the sign; and * Retention of the existing access grating provided along the edges of the new structure. … The proposed digital sign; * has similar dimensions although smaller in height and length (with a resulting smaller overall area) to the existing Council approved static sign, * is in the same location as the existing Council approved static sign, and * is equivalent in nature to the existing Council approved static sign as it will not have features which may distract viewers such as moving elements, flashing elements, rolling elements and the link. …"
4. As stated in [11], the Court granted leave for the Applicant to amend the Modification Application to change the proposed dwell time between static displays from 10 seconds to 25 seconds and to include proposed operating conditions which had been agreed to by the second respondent prior to filing their submitting appearance (although I note there was disagreement between the applicant and first respondent as to appropriate terms of these conditions in the event consent was granted to the Amended Modification Application).

Public Submissions

1. The Modification Application was publicly notified for a period of 14 days from 27 April 2023. No submissions were received.

The site view

1. The Court attended a site view on the morning of the hearing, accompanied by the applicant and first respondent, including crossing over King Georges Road to view the Site from that vantage.

Expert evidence

1. The applicant relies on the town planning evidence of Mr Chris Blyth and the first respondent relies on the town planning evidence of Mr James Lidis.
2. Mr Blyth and Mr Lidis prepared a Joint Town Planning Report filed 12 June 2024 which was subsequently tendered at the hearing (Joint Town Planning Report) (Ex 3).

The role of the Court on appeal

1. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether consent should be granted to the proposed development. Section 39 of the LEC Act provides as follows: 39 Powers of Court on appeals … (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
2. Similarly, section 8.14(1) of the EPA Act provides: (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

Legal and planning framework

1. The Amended Modification Application seeks to modify the Original Consent under s 4.55(2) of the EPA Act. Relevant provisions of s 4.55 are extracted below: (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.
2. As set out at [18], the Site is zoned E1 under the LEP. Development for the purposes of signage is permissible with consent in the E1 zone. The E1 zone objectives to which I have had regard in the assessment of the Amended Modification Application, are extracted below: • To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area. • To encourage investment in local commercial development that generates employment opportunities and economic growth. • To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council's strategic planning for residential development in the area. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. • To maximise public transport patronage and encourage walking and cycling. • To encourage development that is compatible with the centre's position on the centres hierarchy.

Is the Amended Modification Application substantially the same as the development approved by the Original Consent?

Consideration of principles

1. In considering the scope and application of s 4.55(2)(a) of the EPA Act and the concept of whether development is "substantially the same", both parties referred to a number of cases. I refer to the key cases and principles below.
2. Both parties referred to the case of Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Agricultural Equity) in which Pepper J summarised the key principles relating to the predecessor provision of s 4.55(2)(a) of the EPA Act as follows (at [173]): "173 The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated 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])."
3. The applicant also submitted that the following additional considerations were relevant to determining a modification application under s 4.55(2)(a): 1. The environmental impacts of the proposed modifications are relevant to the ultimate factual finding of whether the proposal is substantially the same (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto) at [62]); and 2. While every matter will turn on its own facts, a smaller development is capable of being considered substantially the same notwithstanding a reduction in size (Aveo North Shore Retirement Villages Pty Ltd v Northern Beaches Council [2020] NSWLEC 1035 at [106], [201]-[202]).
4. The first respondent submitted that the following principles were also relevant to the scope and application of s 4.55(2) of the EPA Act: 1. The consent authority must form the positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) per Preston CJ at [37]). 2. As stated by Duggan J in Hunter Development Brokerage Pty Limited trading as HBD Town Planning and Design v Singleton Council [2022] NSWLEC 64 (Hunter Development) at [80]: "…Judicial interpretations of the statutory language of "substantially the same" have approved of the formular adopted in Vacik at 4 of "essentially or materially or having the same essence": see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and 481-482. The term "modify" in this context has been held to mean "to alter without radical transformation": Ilenace at 421." 1. The modification power is "beneficial and facultative" (Agricultural Equity at [173(1)]), however, that "does not mean that the power to modify exists without constraint" (Hunter Development at [79]). 2. One (but not the only) way to undertake the comparative exercise required is "to identify the material and essential features of the originally approved and modified developments" (Arrange at [27]-[28]). 3. 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) (Moto at [56]). 4. As set out in Vacik Pty Limited v Penrith City Council [1992] NSWLEC 8 (Vacik) at [6] (regarding previous s 102): "In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use…and, as amended, it will be precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102".

Applicant's position

1. The applicant emphasises that the correct approach to the application of s 4.55(2)(a) of the EPA Act is to consider and compare the whole of the development as modified and the whole of the development as originally approved. The applicant asserts that the first respondent has applied the wrong test and focussed only on the comparison of the approved static advertising sign and the proposed digital advertising sign, without regard to the development as a whole (see Applicant Written Submissions (AWS) at [22]).
2. Applying the above principles to the Amended Modification Application, the applicant submits that the Amended Modification Application proposes a static billboard using a digital display (which will change periodically), a number of business identification signs, and a building parapet with supporting structures. This can be compared with the Original Consent which approved a static printed billboard (which was changed periodically albeit at lesser intervals), a number of business identification signs, and a building parapet with supporting structures. This means that "only one component of the broader signage and structures the subject of the Original Development Consent is changed by the Amended Modification Application, being the media by which the general advertising sign is delivered (with adjustment to the cladding to accommodate the slightly smaller digital sign)" (AWS at [22]).
3. The applicant relies on the evidence of its town planner, My Blyth, to demonstrate that the Amended Modification Application proposes development that is substantially the same as the development granted by the Original Consent. Mr Blyth sets out his analysis of the "comparative situation" between the "Existing Sign" and "Modified Sign" in the following table in the Joint Town Planning Report (at pp 5-9) as follows:
4. For completeness, although the table columns are titled, "feature", "existing sign" and "modified sign", it was apparent in cross examination (see Tcpt 10 July 2024 p 45 line 44-47) (and from the content of the table itself) that this table considered more than just the third party advertising sign.
5. The applicant relies on this analysis from Mr Blyth to submit that: 1. In this context, the modification is not a "radical transformation" of the development approved under the Original Development Consent (AWS at [24]). 2. The change of illumination from floodlighting to backlighting by virtue of the change to technology, is not a material change in the context of the whole development (AWS at [29]). 3. The fact that the image on the advertising sign can change more frequently is not a significant difference from what was already there as the Original Consent approved advertising signage with a message that "will change from time to time". The image displayed under the proposal will be capable of being changed every 25 seconds which is more conservative than the Guidelines and will not involve the display of moving video or animation, flashing or the like. The proposal merely reflects an evolution in the technology by which the advertising panel is delivered (AWS at [31]).
6. The applicant criticises the evidence of Mr Lidis on the basis that Mr Lidis incorrectly focusses on the single advertising panel rather than the comparative task required between the whole of the original development as approved and the proposed modified development as a whole (Tcpt 10 July 2024 p 20 line 23-32 and Tcpt 10 July 2024 p 56 line 30-42).
7. The applicant refers the Court to the decision of Walsh C in Outdoor Systems Pty Ltd v Georges River Council [2021] NSWLEC 1338 (Outdoor Systems) which considered a modification application to change an existing static sign to a digital sign located diagonally across the subject intersection from the Site. In that case, Walsh C held that the proposed modification was substantially the same development, stating (at [63]): "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 qualitative and/or quantitative advertising intensification, or a setting or advertising saturation, to the extent that it would be described as a radical transformation compared to what exists now…"
8. The applicant submits that the approach taken by Walsh C in Outdoor Systems is correct (albeit not binding).
9. Conversely, the applicant criticises the decision of Bradbury AC in Ooh!Media Limited v Willoughby City Council and Anor [2022] NSWLEC 1332 (Ooh!Media) which also considered a modification application to change an existing static sign to a digital sign. In that case, Bradbury AC held that the proposed modification was not substantially the same, stating (at [17]): "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."
10. The applicant submits that the decision in Ooh!Media should be treated with caution (and not followed in this case) on the basis that: 1. the Commissioner failed to address Walsh C's earlier decision in Outdoor Systems; 2. the matters that the Commissioner found in Ooh!Media were never the subject of argument or evidence in those proceedings because the question of whether the proposed development was substantially the same was not a contention in those proceedings; 3. the Commissioner relied on his own observations to determine that the digital sign was akin to a "large LED television" which was not the subject of evidence or submissions before the Court in that case; and 4. the Commissioner's decision was flawed (or at least of limited relevance to these proceedings) as it focussed only on the change to the display panel itself and not the broader approved development.

First respondent's position

1. The first respondent submits that the Amended Modification Application is not substantially the same development as the development approved by the Original Consent having regard to both a quantitative and qualitative analysis.
2. The first respondent sets out what it submits are the relevant quantitative features of the Original Consent and the proposed modified development at [63] - [64] of the Respondent's Written Submissions (RWS) and what it submits are the relevant qualitative features of the Original Consent and the proposed modified development at [65] - [66] of the RWS (noting that there is some overlap).
3. The first respondent then concludes that the development to which the consent as modified relates is not substantially the same development as the development for which consent was originally granted for the following reasons: 1. The development as modified does not "essentially or materially… [have] the same essence" (Vacik) as the development originally approved. 2. Materially, the "sign board/billboard panel/large format billboard" originally approved in conjunction with predominantly business identification signage, is a passive "sign board" with no internal electronic components. The general advertising component of the development as modified is a digital LED screen. 3. Furthermore, while the approved general advertising sign may "change from to time to time", without further development consent, the modified development will change its content after every 25 seconds except during school speed zone times and is therefore an intensification of the provision of general advertising (Tcpt 10 July 2024 p 74 line 21-27). Based on the evidence of Mr Lidis, this would amount to thousands of changes to the sign per day. 4. Whereas the approved sign requires manual, physical replacement to change its general advertising content, the modified development uses "technology to change the advertising content on a regular basis" with the "material displayed on a digital sign … managed by the applicant with the use of specialised software". 5. The approved sign cannot malfunction. The proposed sign can "malfunction". 6. The approved sign cannot be impacted by "digital security issues". The modified sign can be impacted by "digital security issues". 7. The way in which the development as modified is proposed to be carried out, will be a radical transformation, having regard to the principles set out in Vacik.
4. The first respondent refers to the case of Ooh!Media as a helpful example of a case considering the application of the same provision (namely, s 4.55 of the EPA Act) in similar circumstances (see extract of Bradbury AC's decision at [49] above). The first respondent highlights the following factual similarities between the Ooh!Media case the present: 1. the new sign would be slightly smaller than the existing sign; 2. the new sign would be internally lit rather than backlit; 3. the digital sign utilised inbuilt sensors that automatically dim the signage; 4. the new sign would be capable of changing every 10 seconds with a 0.1 second transition time; and 5. the new sign was proposed to remain a static billboard with no animation, video, flashing etc.
5. Although not binding, the first respondent submits that the facts of Ooh!Media are strikingly similar to the present case and the approach should be considered in the determination of this case.
6. Insofar as the applicant relies on the case of Outdoor Signage, the first respondent submits that there are different facts (for example, the reduction in other existing signage), and the Commissioner in that case conflated the jurisdictional question of whether the modification application was substantially the same development with a consideration of the merits of the application, which suggested legal error (RWS at [78] - [79]). The first respondent therefore urged the Court not to adopt Walsh C's approach.

Consideration

1. The starting point for determining whether the Amended Modification Application can or should be approved is the jurisdictional threshold question set by s 4.55(2), namely if the Court 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).
2. I accept the parties' submissions that this requires a consideration of, and comparison between, the whole of the development as proposed to be modified and the whole of the development as originally approved (before any modification).
3. It is clear that the Original Consent relevantly approved: 1. a static printed billboard (which was manually changed periodically) with associated cladding in the location and dimensions (being 12.6 x 3.350m) indicated on the Approved Plans; 2. four x 450 watt floodlights located behind what I accept is referred to as "Panel C" in the 2000 SEE; 3. three business identification signs in the location and dimensions indicated on the Approved Plans; and 4. a building parapet and supporting structures; subject to conditions of consent, which amongst other things, prohibited illumination or lighting that was "flashing, animated, moving or revolving".
4. The Amended Modification Application relevantly proposes: 1. a static billboard using an internally illuminated digital display (which will change every 25 seconds, except during school zone hours when the display shall be fixed) in the same general location as the static printed billboard depicted on the Approved Plans, but slightly smaller at 12.48 x 3.2m; 2. three business identification signs in the location and dimensions indicated on the Approved Plans; and 3. a building parapet and supporting structures; subject to proposed conditions of consent, which amongst other things, prohibit lighting that is "flashing, animated, moving or revolving".
5. Both parties accept that only one component of the broader signage and structures approved by the Original Consent is proposed to be changed by the Amended Modification Application, this being a change from an advertising billboard sign requiring manual and periodic replacement of content lit by floodlights to a LED backlit digital sign with associated changes in the frequency of image change. This includes some modifications to the existing cladding (that was approved in the Original Consent) to support the new sign and the associated removal of the four floodlights due to the proposed advertising sign being backlit via digital means.
6. I have considered the quantitative and qualitative features of the development approved by the Original Consent and the development as proposed to be modified (noting there is some overlap between the features).
7. On a quantitative basis, the Amended Modification Application proposes the replacement of a billboard sign with a LED digital sign with slightly smaller dimensions, minor changes to the existing cladding to support the new third party advertising sign, and removal of the four floodlights (which I note were not visible from the street as per the Original Consent). To this end, I have had regard to the unchallenged statement in the Visual Impact Assessment prepared by Urbis dated November 2022 that the "the proposed digital advertising sign (LED conversion) replaces one of similar proportions and dimensions in the same location and will largely replicate the visual effects of the sign already in place" (Ex A, tab 5).
8. Although I accept the way in which the proposed third party advertising sign will operate is different to the way in which the Approved Advertising Sign operates, this is but one component of the whole of the development approved by the Original Consent and but one element of the whole of the development as proposed to be modified. I do not consider the fact that this one element will be operated differently renders the whole of the development to not be substantially the same.
9. Further, having regard to the facts and evidence in this case, I do not consider that the change from an externally illuminated static billboard sign to an internally illuminated LED digital sign which will "largely replicate the visual effects of the sign already in place" is, without more, sufficient to necessitate a finding that the Amended Modification Application is not substantially the same development as the development approved by the Original Consent.
10. In my view, these quantitative changes are not a radical transformation of the original development as approved and are not significant enough to mean that the proposed modified development is not substantially the same as the development approved by the Original Consent.
11. On a qualitative basis, I accept that the impact of viewing the Approved Advertising Sign will be largely the same as the impact of viewing the proposed third party digital sign. This is largely due to the: 1. Static nature of the images displayed by both the Approved Advertising Sign and the proposed third party advertising sign (with a dwell time of 25 seconds, except when they are fixed during school zone hours). I accept Mr Blyth's evidence that even though the proposed third party advertising sign will change more frequently, "the result though is on each occasion a static advertisement in a digital form" (Tcpt 10 July 2024, p 34 19-21). 2. Luminosity not being perceptibly different in that it will be illuminated to the extent necessary to view in accordance with AS4282 and the Guidelines during the day (Ex A, tab 4, p 5) and is proposed to be illuminated to a maximum level of 122 cd/m2 at night so that it will not exceed the night time luminance of the Approved Advertising Sign (Ex 3, p 6 and Ex A, tab 4, p 5).
12. I also note the evidence of Mr Lidis in the witness box who answered in the affirmative to the question, "you'd accept that a single person seeing the sign is not confronted with any greater intensity of advertising in the sense that they're only going to see that one panel, aren't they?" (Tcpt 10 July 2024 p 27 line 21-25).
13. I am therefore satisfied based on the evidence that the impact of viewing the whole of the development approved by the Original Consent will be largely the same as the impact of viewing the whole of the development as proposed to be modified by the Amended Modification Application. This view is reinforced by the lack of contention or argument from the second respondent that the Amended Modification Application had unacceptable safety or traffic impacts (which could therefore imply different impacts to the Approved Advertising Sign or development approved by the Original Consent).
14. Having regard to the evidence before the Court and the quantitative and qualitative features of the development as approved and the development as proposed to be modified, I am satisfied that the proposal is of the same essence, serving the same function, with largely the same impacts, and therefore substantially the same for the purpose of s 4.55(2) of the EPA Act.
15. For completeness, I confirm that I have considered the decisions in Ooh!Media and Outdoor Signage and have reached the view that the Amended Modification Application is substantially the same having regard to the facts and evidence before the Court in this case. This judgment makes no comment as to the correctness of the approach taken in Ooh!Media or Outdoor Signage.

Remaining relevant matters in s 4.55 of the EPA Act

1. The parties agree that s 4.55(2)(b) of the EPA Act does not apply to this matter.
2. In relation to s 4.55(2)(c), the Modification Application as lodged was notified in accordance with relevant requirements.
3. In relation to s 4.55(2)(d), no submissions were received as part of the notification process.
4. In respect of s 4.55(3), in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, having regard to the SEE and accompanying documents.
5. In this respect I note that there was no contention remaining before the Court at the hearing that the Amended Modification Application should fail on its merits. I also note that the second respondent's solicitors provided a letter dated 4 July 2024 (Ex D) stating that: "TfNSW does not press its contentions filed 24 July 2023 in the Proceedings in relation to the Amended Modification Application. The submitting appearance filed by TfNSW on 20 June 2024 indicates that TfNSW submits to the Court making all orders sought in the proceedings (save as to costs) regarding the (sic) Amended Modification Application (Uniform Civil Procedure Rules 2005, r 6.11). Accordingly, TfNSW does not object to: 1. the Amended Modification Application; or 2. the Draft Conditions. …"
6. Therefore, I am satisfied that there are no outstanding traffic or safety related issues that would prevent the granting of consent to the Amended Modification Application, provided appropriate conditions of consent are imposed (considered further below).
7. Finally, for the purposes of s 4.55(3), in determining the Amended Modification Application, the parties agree that the Court may consider the Report to Hurstville Council prepared by Leanne Williams, senior town planner (undated) (Ex 2, pp 198-201) recommending approval of the development application the subject of the Original Consent (2000 Council Report), as reflective of the reasons given by Hurstville Council in relation to the grant of the Original Consent. The 2000 Council Report relevantly stated that: 1. The development will rationalise the existing signage that is located over the external walls and roof. The new parapet will hide the plant equipment located on the roof and create a uniform roofline around the corner. 2. The corner of Stoney Creek and King Georges Roads is a significant element of the Beverly Hills commercial zone. The improvements to this corner of the intersection will provide a balance to the other approved billboard sign and contribute to the development of a gateway to the Beverly Hills area. In the circumstances, the development will compliment the building form, provide a balance to the other billboard and will aesthetically contribute to the streetscape and amenity to the area. 3. The development is considered appropriate in the circumstances and suitable in the public interest. It is therefore recommended for approval, subject to appropriate conditions.
8. The respondent also notes the following wording in the Original Consent as relevant to the reasons provided for the grant of the Original Consent (Ex 2, pp 206): "APPROVAL - These conditions have been imposed to ensure that the development is carried out in accordance with statute laws and with this development consent, having regard to the environmental circumstances of the site."
9. Having regard to the above, I am satisfied that there is no reason provided in the 2000 Council Report or the Original Consent that would prevent the granting of the Amended Modification Application.

Conditions

1. The parties agree on the conditions that should be imposed if the Court is minded to grant consent to the Amended Modification Application, with the exception of Condition 23 relating to a trial period. As I have determined to approve the Amended Modification Application, it is necessary to determine the scope and effect of Condition 23.
2. The following background to the evolution of proposed Condition 23 is relevant to the consideration of the terms by which it should be imposed.
3. As set out at [11], the applicant was granted leave on 20 June 2024 to amend the SEE to limit the dwell time of the static images on the digital LED screen to 25 seconds on the basis of discussions with the second respondent. The amendments to the SEE also included proposed conditions of consent should the Amended Modification Application be granted. The second respondent then filed a submitting appearance on the same date.
4. The condition relating to a trial period, which is now known as Condition 23, relevantly provided as follows: "Trial Period (a) In accordance with the Guidelines, a road safety check which focuses on the effects of the placement and operation of the sign with a dwell time of 25 seconds (except during school speed zone times), must be carried out in accordance with Part 3 of the RMS Guidelines for Road Safety Audit Practices after a 12-month period of operation (Trial Period). (b) The Trial Period will commence on the date that the Applicant commences operation of the sign with a dwell time of 25 seconds. (c) The Applicant must notify Georges River Council (Council) and Transport for NSW (TfNSW) of the date on which the Trial Period commenced within 14 days of its commencement. (d) The Trial Period will conclude on the day which is 12 months after the commencement of the Trial Period. (e) After the Trial Period, the Applicant must: (i) have an independent Road Safety Audit (RSA) undertaken by a qualified and accredited road safety auditor that reviews the complex road environment at this location and the impacts of the minimum static display period for the Trial Period referred to at condition (sic) (a). (ii) the RSA must: A. be submitted to TfNSW and to Council no later than 15 months from the Trial Period commencement date; and B. assess the operation of the advertising sign during the Trial Period for a period of at least 12 months. (iii) obtain written confirmation and direction from TfNSW to implement any measures recommended by the Road Safety Auditor in the RSA."
5. In the letter from the second respondent's solicitors dated 4 July 2024 (referred to at [76] above), the letter refers to the Amended Modification Application and "draft conditions of consent provided to us by the First Respondent on 28 June 2024 (Draft Conditions)". The letter goes on to then state that "TfNSW does not object to… the Amended Modification or the Draft Conditions". The Draft Conditions provided on 28 June 2024 are contained in Ex 6 and, in relation to the trial period (proposed condition 20 of this version), relevantly provide: "20. Trial Period (a) The operation of the approved signage is granted conditionally and subject to an 18-month trial period from the date of commencement. The date of commencement is taken to be the date at which the signage is installed and commissioned for operation per Condition 19. Within 3 months prior to the lapse of the trial period, a further modification application must be lodged with Council to remove the requirement for a trial period and continue the approved operation of the signage. Council's consideration of the continued operation of the signage will be based on, among other things, the performance of the signage operator in relation to compliance with development conditions, any substantiated complaints received, and any views expressed by Transport for NSW. If no further modification application made under Condition 20(a) is lodged or approved by Council, the approved operation of digital signage will cease to be in effect. (b) The Applicant must notify Georges River Council and Transport for NSW of the date on which the trial period commences, within 14 days of commencement. (c) In accordance with the Guidelines, a road safety check which focuses on the effects of the placement and operation of the sign with a dwell time of 25 seconds (except during school speed zone times), must be carried out in accordance with Part 3 of the RMS Guidelines for Road Safety Audit Practices after 12 months of operation, but before the end of the 18 month trial period. (d) During the trial period, the Applicant must: i. have an independent Road Safety Audit (RSA) undertaken by a qualified and accredited road safety auditor that reviews the complex road environment at this location and the impacts of the minimum static display period for the trial period referred to at Condition 19(b). ii. The RSA must: A. be submitted to TfNSW and to Council no later than 15 months from the trial period commencement date; and B. assess the operation of the advertising sign during the trial period for a period of at least 12 months. iii. Obtain written confirmation and direction from Transport for NSW to implement any measures recommended by the Road Safety Auditor in the RSA."
6. There is therefore a clear distinction between the trial period condition included in the SEE (as amended on 20 June 2024) that preceded the second respondent's submitting appearance, and the version of the trial period condition referred to in the letter from the second respondent's solicitor dated 28 June 2024. The primary difference being that the trial period condition in the SEE purely required a Road Safety Audit (RSA) to be carried out and the applicant to "obtain written confirmation and direction from TfNSW to implement any measures recommended by the Road Safety Auditor in the RSA". Unlike the version dated 28 June 2024, this version of the trial period condition was not granted conditionally and did not require a further modification application to be lodged to continue the approved operation of the signage.
7. The applicant submits that it is inappropriate to implement a conditional trial period condition, stating (at Tcpt 9 July 2024, p 46 at 10-17): "The real problem with this is, you have no evidence and no contention before you Commissioner, that would indicate or suggest that there's any good reason to end this consent within that period of time and the case I would commend to you dealing with that is the Chief Judge in Gales-Kingscliff Pty Ltd v Tweed Shire Council (No. 2) [2007] NSWLEC 817 which was where the Chief Judge accepted that even if something was brought up in the context of a condition, because council's trying to impose a condition that addresses a particular issue, that it properly has to be the subject of the proceedings."
8. On the other hand, the first respondent submits that the trial period serves no proper purpose in the form contained within the SEE, stating "you need a trial period to have an effect which can be enforced" (Tcpt 9 July 2024 at p 44 line 1). The first respondent went on to state that (at Tcpt 9 July 2024, p 44 at line 35-46): "The development consent runs with the land and anybody who acquires the land should be able to read the development consent and understand the terms relating to that particular sign as a component of the original development consent as modified, including by this proposed modification application. So, it's entirely within the power in 1643 Pittwater Road v Pittwater Council in our respectful submission that it arises as a direct consequence of a modification application that proffers a trial period that there be a further application after the results of that trial period are known to if nothing arises, to delete that condition or to confirm that the sign may continue without further alteration from the provision of a 25 second dwell period, or to make such further adjustment to the terms on which that sign may continue as arise from the audit of the sign's usage over the first period."
9. Having considered the submissions by the parties and evidence before the Court, I accept the applicant's argument that there is no proper basis to impose a conditional trial period in the manner proposed by the first respondent. There is no evidence (relating to traffic, safety or otherwise) before the Court that there is any reason why a consent granted in connection with the Amended Modification Application should cease within 12 (or 18) months without a further modification application. The second respondent filed its submitting appearance on 20 June 2024 following the amendments to the SEE in the form extracted at [84]. It is reasonable to assume that the second respondent was satisfied that its traffic and safety concerns had been addressed on the basis of the amendments to the SEE, including the trial period as proffered by the applicant (which did not include the consent terminating at the end of 12 months without a further modification application).
10. Having said this, I raised during the hearing that the proposed wording in Condition 23(e)(iii) appeared uncertain in terms of the applicant having a positive obligation to action the results of the trial period. Noting that the applicant has subsequently amended the proposed wording of (now) Condition 23(d)(iii) to relevantly require the applicant to "implement any measures recommended by the Road Safety Auditor in the RSA to the satisfaction of Transport for NSW", I am satisfied that this condition is sufficiently clear and capable of being imposed. I further note that if the RSA requires changes or works to the approved development, this will likely require a modification application in any event to satisfy Condition 23(d)(iii) so that the applicant does not breach the conditions of its consent.
11. On this basis, I accept the conditions of consent proposed by the applicant as provided to the Court on 15 July 2024.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No DA2000/671 is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 in the terms in Annexure A. 3. Development Consent No DA2000/671 as modified by the Court is set out in Annexure B. 4. The exhibits are returned except for Exs A and 2.

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