Regional Dooh Pty Ltd v Coffs Harbour City Council

Cases Cited: Healy Capital Pty Ltd ATF Healy Family Super Fund v The Council of the City of Sydney [2026] NSWLEC 84
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115
Ironlaw Pty Ltd v Wollondilly Shire Council (No 3) [2014] NSWLEC 1057
Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 150
SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112
SLR Consulting Australia Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1402
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133
Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117
Tomasic v Port Stephens Council [2021] NSWLEC 56
Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited: Australian Standards for Outdoor Lighting
Coffs Harbour Bypass Renewal Action Plan
Coffs Harbour Development Control Plan 2015
Macquarie Dictionary
Transport Corridor Outdoor Advertising and Signage Guidelines 2017

Category: Principal judgment

Parties: Regional Dooh Pty Ltd (Applicant)
Coffs Harbour City Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
J Palmer (Solicitor) (Respondent)
Solicitors:
Piper Alderman (Applicant)
Pikes Verekers Lawyers (Respondent)

File Number(s): 2025/338511

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings concern a proposal for the construction of a freestanding structure to contain a digital advertising sign and a static advertising sign (the advertising sign). The proposed advertising sign would display third-party advertising, with the northeastern face displaying digital signage and the southwest face displaying a static sign. The development application also includes the demolition of an existing sign on the site. Following the expiration of the deemed refusal period the Applicant appealed, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA) against the refusal of its development application DA/408/25. The development application proposes the installation of the advertising sign at 10 Ray McCarthy Drive, Coffs Harbour (Lot 126 DP 825107) (the site).

2. At the commencement of the hearing, by consent, the Court granted leave for the Applicant to amend the development application. As amended the development application proposes an advertising sign comprising:

3. A north-eastern facing digital sign with an advertising display area of 19.4m2 and a proposed dwell time of 10 seconds aimed at north bound motorists travelling along the Pacific Highway;

4. A static sign on the south-western elevation of the advertising sign; and

5. A height of 7.9m.

6. The amended development application is the subject of this judgment.

Issues

4. Notwithstanding the amendments to the development application, the Respondent maintains the development application warrants refusal on the following grounds:

5. That the proposed advertising sign is excessive in size and is incompatible with the desired future character of the area. Under this contention the Respondent argues that the development application is contrary to:

(a) the aims and objectives at s 3.1(1)(a) of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE); (b) Assessment criteria 1, 4 and 5 of Sch 5 of the SEPP IE.

2. The Court’s satisfaction that the advertising sign is consistent with the objectives of the SEPP IE and satisfies the criteria in Sch 5 of the SEPP IE is a mandatory precondition to consent. On the evidence of Ms Baker, the Respondent argues the Court would not be so satisfied and that the development application must be refused.
3. The Respondent contends that the proposed development does not reflect design excellence nor a high visual standard. Under this contention the Respondent argues that the development application:

(a) is inconsistent with the following objective of the E4 General Industrial zone, which is a matter for consideration at cl 2.3(2) of the Coffs Harbour Local Environmental Plan 2013 (LEP 2013);

• to ensure development reflects design excellence and a high visual standard within the public domain.

(b) Falls short of satisfying the design excellence consideration at cl 7.12 of the LEP 2013, in particular:

(i) cl 7.12(4)(b) of the LEP 2013: “whether the form and external appearance of the development will improve the quality and amenity of the public domain”. (ii) cl 7.12(4)(d) of the LEP 2013: “the requirements of the Coffs Harbour DCP” and (iii) cl 7.12(4)(e) of the LEP 2013, namely:

(e) how the development relates to the following matters—

….

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

4. That pursuant to s 4.15(1)(a)(iii) of the EPA Act the development application is inconsistent with the provisions of the Coffs Harbour Development Control Plan 2015 (DCP 2015).
5. That the development is likely to cause adverse impacts on the natural and built environment arising from its detrimental visual impact and its role in adding to the cumulative impact of visual clutter: s 4.15(1)(b) of the EPA Act.
6. That the site is not suitable for the proposed development as it would add visual clutter to the streetscape: s 4.15(1)(c) of the EPA Act.

Are the controls in the DCP 2015 inconsistent or incompatible with either the SEPP IE or the LEP 2013?

5. Relevantly “signage” in SEPP IE is defined as follows:

signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes—

(a) building identification signs, and

(b) business identification signs, and

(c) advertisements to which Part 3.3 applies,

but does not include traffic signs or traffic control facilities.

6. The term “signage” in the LEP 2013 and the DCP 2015 has the following nominated meaning:

signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following—

(a) an advertising structure,

(b) a building identification sign,

(c) a business identification sign,

but does not include a traffic sign or traffic control facilities.

7. The Applicant submits that the relevant provisions of the DCP 2015 are inconsistent with the provisions of the SEPP IE and/ or the provisions of the LEP 2013. Accordingly, the Applicant submits that, to the extent of the inconsistency, those provisions are to no effect pursuant to s 3.43(5)(b) of the EPA Act. Dr Smith submits that to the extent that the controls in the DCP 2015 (in particular cll F5.1.1(a) and F5.1(2)) are inconsistent with the provisions of the SEPP IE, or are inconsistent or incompatible with LEP 2013 and that they should be given little or no weight.

8. In advancing this submission the Applicant relies on the decision of the Court in Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [74] (‘Zhang v Canterbury*’*) that establishes that a development control plan cannot operate to prohibit the carry out of development. It states:

"74 A development control plan is not an "environmental planning instrument". (See definition in s 4). Accordingly, the requirement in s 80(2) that a consent authority "must refuse" an application that would "result in a contravention of" such an instrument does not apply to a development control plan. Furthermore, the proscription, by s 76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a "non-discretionary development standard" which, if complied with, would take away a consent authority's discretion under s 79C(2)."

9. Relevantly the EPA Act details the role of development control plans in part at ss 3.42 and 3.43 as follows:

3.42 Purpose and status of development control plans

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development—

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

(2) The other purpose of a development control plan is to make provisions of the kind referred to in section 3.43(1)(b)–(e).

(3) Subsection (1) does not affect any requirement under Division 4.5 in relation to complying development.

…

3.43 Preparation of development control plans

(1) The relevant planning authority may prepare a development control plan (or cause such a plan to be prepared) if it considers it necessary or desirable—

(a) to provide the guidance referred to in section 3.42(1), or

(b) (Repealed)

…

(e) to make provision for anything permitted by this Act to be prescribed by a development control plan.

Note.

See for example section 3.14(4)(a).

….

(5) A provision of a development control plan (whenever made) has no effect to the extent that—

(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or

(b) it is inconsistent or incompatible with a provision of any such instrument.

10. Under s 3.43(5)(b) of the EPA Act a provision of a development control plan is to no effect to the extent that it is inconsistent or incompatible with specific provisions an EPI. However, it is first necessary to determine whether an inconsistency exists and, if so, its nature and extent: Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWCA 106.

The alleged inconsistencies:

11. The Applicant argues that the Court will be required to determine whether, for the purposes of s 3.43(5) of the EPA Act, the identified provisions of the DCP 2015 are inconsistent or incompatible with an environmental planning instrument that applies to the land.

12. The Applicant identifies two alleged inconsistencies or incompatibilities to which s 3.43(5) of the EPA Act is said to apply. Firstly, Dr Smith argues that cll F5.1.1(a) and F5.1(2) of the DCP 2015 are inconsistent or incompatible with s 3.1(2) of the SEPP IE. His reasoning is that s 3.1(2) of the SEPP IE states that consent is not required for the content of a sign. Further, once the sign is in place (or approved) consent is not required for content. However, to be consistent with cl F5.1.1(a) of the DCP 2015 which restricts the signage (including advertising) to be designed to relate to the use of the building, Dr Smith submits that cl F5.1.1(a) seeks to restrict the possible signage to only building or business identification signage.

13. On similar reasoning Dr Smith submits that the restriction at cl F5.1(2) of the DCP 2015, that signage is not to contain advertising promoting products or services not related to the approved use of the premises or site, is inconsistent with s 3.1(2) of the SEPP IE as it restricts the possible signage to only building or business identification signage.

14. Secondly, Dr Smith argues that there is an inconsistency and incompatibility between LEP 2013 and cl F5.1(2) of the DCP 2015. He argues that under the LEP 2013 the land use table at cl 2.3 relevant to the E4 General Industrial zone permits three types of signage under the group term “signage”, namely building identification signs, business identification signs and advertising structures. Whereas cl F5.1(2) of the DCP 2015 requires that signage be restricted to advertising products or services related to the approved use of the premises or the site. In this way, Dr Smith argues that the DCP control at cl F5.1(2) seeks to prohibit a land use (advertising structure) that is within the “permitted with consent” group term of signage under LEP 2013.

15. In detail, the alleged inconsistencies or incompatibilities are:

16. Between cl 3.1(2) of the SEPP IE and:

(a) DCP 2015 Section F5 ‘Signage’, cl F5.1(1)(a); and /or (b) DCP 2015 Section F5 ‘Signage’, cl F5.1 (2).

2. Between LEP 2013 (including the Land use zoning table for the E4 General Industrial zone in LEP 2013 and the definition of business identification sign) and:

(a) DCP 2015 Section F5 ‘Signage’, cl F 5.1(1)(a); and/or (b) DCP 2015 Section F5 ‘Signage’, cl F 5.1 (2).

16. If the Court finds those provisions of the DCP 2015 are inconsistent with cl 3.1(2) of the SEPP IE and/or the LEP 2013 the Applicant argues that the preceding provisions of the DCP 2015 are of no effect to the extent of the inconsistency.

The relevant provisions

17. Clause 3.1 of the SEPP IE:

3.1 Aims, objectives etc

(1) This Chapter aims—

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

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

(ii) provides effective communication in suitable locations, and

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

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

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

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

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

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

18. DCP 2015, Part F: General Development Controls, Section F5 ‘Signage’, cl F5.1 ‘General signage requirements:

(1) Signage is to be designed and located to:

(a) relate to the use of the building; and

….

(2) Signage is not to contain advertising promoting products or services not related to the approved use of the premises or site.

19. The definition of a “Business identification sign” in LEP 2013:

business identification sign means a sign—

(a) that indicates—

(i) the name of the person or business, and

(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and

(b) that may include the address of the premises or place and a logo or other symbol that identifies the business, but that does not contain any advertising relating to a person who does not carry on business at the premises or place.

Note.

Business identification signs are a type of signage—see the definition of that term in this Dictionary.

20. The zoning table for zone E4 General Industrial in LEP 2013:

Zone E4 General Industrial

1 Objectives of zone

…

2 Permitted without consent

Building identification signs; Home occupations

3 Permitted with consent

Agricultural produce industries; Depots; Dwelling houses; Freight transport facilities; Funeral homes; Garden centres; General industries; Goods repair and reuse premises; Hardware and building supplies; Industrial retail outlets; Industrial training facilities; Kiosks; Landscaping material supplies; Light industries; Liquid fuel depots; Local distribution premises; Neighbourhood shops; Oyster aquaculture; Rural supplies; Take away food and drink premises; Tank-based aquaculture; Timber yards; Vehicle sales or hire premises; Warehouse or distribution centres; Any other development not specified in item 2 or 4

4 Prohibited

Agriculture; Air transport facilities; Airstrips; Amusement centres; Boat launching ramps; Boat sheds; Camping grounds; Car parks; Caravan parks; Cemeteries; Centre-based child care facilities; Charter and tourism boating facilities; Commercial premises; Correctional centres; Eco-tourist facilities; Educational establishments; Exhibition homes; Exhibition villages; Farm buildings; Forestry; Health services facilities; Heavy industrial storage establishments; Heavy industries; Highway service centres; Information and education facilities; Jetties; Marinas; Mooring pens; Moorings; Recreation facilities (major); Registered clubs; Residential accommodation; Respite day care centres; Restricted premises; Rural industries; Tourist and visitor accommodation; Water recreation structures; Wharf or boating facilities

Submissions

21. Dr Smith submits that cl 3.1(2) of the SEPP IE is plainly inconsistent with cll F5.1(1)(a) and F5.1(2) of the DCP 2015 because:

22. The effect of cl 3.1(2) of the SEPP IE is that no development consent is required for signage content.

23. In contrast, the provisions of the DCP 2015 require that signage, which includes advertising structures, has to be designed to relate to the use of the building, or the business being carried out.

24. In doing so, the DCP provisions (which are subordinate controls) are in conflict with the provisions of the SEPP IE as they seek to regulate content of signage or limit the breadth of signage permitted in the zone.

25. Further, Dr Smith argues that cl F5.1(2) of the DCP 2015 is in conflict with the definition of business identification signage and the land use table in LEP 2013 which permits all three categories of signage with consent in the E4 General Industrial zone.

26. In the alternative Mr Palmer submits that the effect of cl 3.1(2) of the SEPP IE is only to state that the chapter does not regulate the content of signage and that consent is not required for a change in the content of signage. He disagrees with Dr Smith’s submission that the terms of cl 3.1(2) make any prescription about how any other instrument might consider or contain controls on the content of signage.

The first alleged inconsistency/ incompatibility

Clause 3.1(2) of the SEPP IE and cll F5.1(a) and or F5.1(2) of the DCP 2015

24. Clause 3.1(2) of the SEPP IE contains two distinct propositions. First, it provides that Chapter 3, ‘Advertising and signage’, does not regulate the content of signs to which the Chapter applies. Secondly, it provides that development consent is not required where the content of such signage is changed.

25. In cl 3.1(2) of the SEPP IE, the term signage bears the three-part meaning given in the definition (see the below definition). It encompasses: (a) building identification signs; (b) business identification signs; and (c) advertisements to which Part 3.3 of the SEPP IE applies. It is the content of these three categories of signage that clause 3.1(2) states is not regulated by chapter 3. See definition extracted at [5].

signage means all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage and includes—

(a) building identification signs, and

(b) business identification signs, and

(c) advertisements to which Part 3.3 applies,

but does not include traffic signs or traffic control facilities.

26. The type of signage to which Part 3.3 applies is determined by the application of the definition of “advertisement” and cl 3.7 of the SEPP IE, namely:

3.7 Advertisements to which this Part applies

(1) This Part applies to all signage to which this Chapter applies, other than the following—

(a) business identification signs,

(b) building identification signs,

(c) signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it,

(d) signage on vehicles.

(2) Despite subsection (1)(d), section 3.26 applies to signage on a trailer (within the meaning of the Road Transport Act 2013).

…

advertisement means signage to which Part 3.3 applies and includes any advertising structure for the advertisement.

27. The development for which consent is sought in these proceedings is signage to which Part 3.3 of the SEPP IE applies. Therefore, it falls within the third category of the signage definition, commonly referred to as third party advertising.

28. The EPA Act does not define the term “regulate”. In relation to the first proposition in cl 3.1(2) of the SEPP IE, the Macquarie Dictionary*,* online ed, accessed 30 July 2026, defines “regulate” as follows:

verb (t) (regulated, regulating)

to control or direct by rule, principle, method, etc.;

to adjust to some standard or requirement, as amount, degree, etc.;

to adjust so as to ensure accuracy of operation; and

to put in good order.

29. Giving the word “regulate” its ordinary meaning, and reading cl 3.1(2) in the context of the definition of “signage”, the first proposition is, in my view, that Chapter 3 of the SEPP IE does not contain provisions that control the content of the signs to which the Chapter applies, other than the categorisation of signage into the three classes reflected in the definition of signage, and the subsequent control of content of those categories contained in the definitions of building identification signs, and business identification signs.

30. However, cl 3.1(2) does not state that the content of signage to which Chapter 3 applies (advertisements) cannot be regulated by an environmental planning instrument. Rather, it provides only that Chapter 3 itself does not regulate the content of such signage. In my view there is nothing in the text of cl 3.1(2) that excludes the operation of other statutory provisions which may regulate signage for different planning purposes. I accept Mr Palmers submission in this regard.

31. The second statement has a different intent; it provides that future changes to the content of the sign do not require consent. However, I am not persuaded by Dr Smith’s submission that this provision has the effect of permitting the alteration of the content of a sign to the extent its purpose moves between the subcategories of signs within the definition of signage. For example, I am not persuaded that the effect of cl 3.1(2) is that an approved sign could amend its content such that it changes its category within the definition of signage, for example from a Business Identification Sign to an advertisement to which Part 3.3 of the SEPP IE applies. Rather, in my view, the intent of the provision is to allow for the content of signage to change without the need for consent within the category, for example: when a business changes ownership.

32. I note that the DCP 2015 adopts the LEP 2013 definition of “signage”, which is slightly different to that in the SEPP IE which is extracted at [5]. The provisions of the DCP 2015 are read with the definition of the LEP 2013, but the difference is not to any significant effect in the circumstances of this case.

33. As Preston CJ observed in Tomasic v Port Stephens Council [2021] NSWLEC 56*,* at [103] the principal purpose of a development control plan is to provide guidance to persons proposing to carry out development and to the consent authority for such development on three matters:

“‘(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.’: s 3.42(1) of the EPA Act.”

34. To achieve this purpose, a development control plan can make provisions to achieve particular strategic planning outcomes, such as to control signage, provided that those provisions are not inconsistent or incompatible with the provisions of an environmental planning instrument applying to the same land: s 3.43(5) of the EPA Act and Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 ('Stockland') at 272 and at [87].

35. The provisions of cl F5.1 of the DCP 2015 have the following stated strategic objectives:

"To ensure that signage is of a high quality and complements the architectural design of buildings and the character of the streetscape.

To minimise the amount of signage and avoid visual clutter on buildings and within the streetscape.

To consider the visual quality of the public domain in the design and location of signage."

36. The objectives of cl F5.1 of the DCP 2015 are directed to the characteristics and potential planning impacts of signage: its design quality, its contribution to visual clutter, and its impact on the public domain. Those objectives cover a different field from cl 3.1(2) of the SEPP IE. Clause 3.1(2) is concerned with whether Chapter 3 regulates the content of signage and whether a change in that content requires development consent. The DCP provisions do not regulate the content of signage in that sense. Rather, they provide design guidance directed to achieving identified planning outcomes. Accordingly, I do not consider the objectives or controls in cl F5.1 to be inconsistent with cl 3.1(2) of the SEPP IE.

Findings on the first alleged inconsistency/incompatibility

Clause 3.1(2) of the SEPP IE and cll F5.1(a) and/or F5.1(2) of the DCP 2015

37. Having made the above comments, I make the following findings:

38. The provisions at cl F5.1(1)(a) of the DCP 2015 are not inconsistent with cl 3.1(2) of the SEPP IE.

Clause F5.1(1)(a) is neither the same as, nor substantially the same as, cl 3.1(2) of the SEPP IE. Nor is it inconsistent or incompatible with that provision.

I am satisfied that the provision at cl F 5.1(1)(a) provides additional guidance as to how signs should be located within a site where that signage is either building identification, or business identification signage. In my view this provision of the DCP is not to the effect that only signage relating to the building or the use of the building on the site is compliant with the provision. Where the sign is an advertisement, this provision would not apply. Similarly, the control at cl F5.1(1)(f), which requires signs to have minimal projection from the building, is clearly not applicable if the sign is proposed to be a freestanding sign.

2. The provisions of cl F5.1(2) of the DCP 2015 are not inconsistent with cl 3.1(2) of the SEPP IE.

Applying the DCP definition of signage to the provision, its meaning can be understood as applying to all three components of the signage definition: advertising structure, building identification signage, business identification signage, but also other types of signage. The signage definition is not a closed definition, but is rather formatted as an open category.

To the extent that cl F5.1(2) of the DCP 2015 purports to limit advertisements to those promoting products or services associated with the approved use of the premises or site, I am satisfied that it cannot be inconsistent with cl 3.1(2) of the SEPP IE.

Clause 3.1(2) neither regulates the content of signage nor requires development consent for changes to that content. Relevantly, in my view cl 3.1(2) of the SEPP IE does not state that the content of signage to which Chapter 3 applies (advertisements) cannot be regulated by an environmental planning instrument. Rather it merely provides that Chapter 3 does not regulate the content of such signage. In my view there is nothing in the text of cl 3.1(2) that excludes the operation of other statutory provisions which may regulate signage for different planning purposes. I find that cl F5.1(2) is a provision of the DCP 2015 that provides guidance to persons proposing to carry out development consistent with s 3.42(1) of the EPA Act. I am not persuaded there is an inconsistency or an incompatibility between the provisions.

The second alleged inconsistency/incompatibility

LEP 2013 and cll F5.1(a) and/or F5.1(2) of the DCP 2015

38. I accept Dr Smith’s submission and find that the provisions of the LEP 2013 are inconsistent and incompatible with the provisions at cll F5.1(1)(a) and F5.1(2) of the DCP 2015. To the extent that these provisions of the DCP 2015 seek to rule out signage containing advertising that promotes products or services not related to the approved use of the premises or the site, or to preclude advertising structures, they are inconsistent with the land use table in the LEP 2013 which permits all three subcategories of the signage definition in the E4 General Industrial zone: Ironlaw Pty Ltd v Wollondilly Shire Council (No 3) [2014] NSWLEC 1057 at [96].

39. Signage, as defined, is a group term in LEP 2013 under which there are three land use terms identified: a) an advertising structure b) a building identification sign; and c) a business identification sign. All three land uses in the signage definition are permitted either without consent, or with consent, in the E4 General Industrial zone.

40. The provisions of cl F5.1(2) of the DCP 2015 are inconsistent with cl 2.3(1) of the LEP 2013. These provisions are inconsistent because they operate incompatibly. An advertisement, being a land use permitted with consent, cannot simultaneously comply with a control that effectively requires it to function only as a building identification sign or business identification sign. An advertisement is a different character of signage which is clear in the definition of signage in the LEP 2013. Applying cl 3.43(5)(b) of the EPA Act, cl F5.1(2) of the DCP 2015 has no effect to the extent it seeks to limit the permissible signage for the purpose of business identification or building identification as to do so is inconsistent with cl 2.3(1) of the LEP 2013 which permits signage in the E4 Zone.

41. In relation to the final finding in the preceding paragraph, I note that the Respondent’s evidence in the proceedings includes a planning proposal, PP-2026-343 (the draft LEP), which acknowledges and seeks to address the inconsistency identified. The draft LEP has been notified by the Respondent and is currently with the NSW Department of Planning and Environment. The planning proposal documentation notes in part that the purpose of the amendment is to:

“… address an inconsistency between Coffs Harbour LEP 2013, Coffs Harbour Development Control Plan (DCP) 2015 and cl 3.43(5)(b) of the Environmental Planning and Assessment Act 1979.

Control F5.1(2) of Coffs Harbour DCP 2015 requires that signage (advertising structures) is not to contain advertising promoting products or services not related to the approved use of the premises or site (ie. Billboards, digital signage, commonly referred to as third party advertising signage). The City has consistently applied this requirement under the Coffs Harbour DCP since its inception to minimise negative impacts from third party advertisements whilst supporting businesses to utilise business and building identification signage for marketing purposes.

This DCP control is inconsistent with Coffs Harbour LEP 2013 for certain zones where signage (advertising structures) is permitted with consent. Clause 3.43(5)(b) of the Environmental Planning and Assessment Act 1979 provides that a provision within a DCP has no effect where it is inconsistent with a provision of an environmental planning instrument (Coffs Harbour LEP 2013) that applies to the same land.”

(Exhibit B)

42. I concur with the reasoning detailed in the above extract from the draft LEP.

43. Having found that cl F5.1(2) of the DCP 2015 is inconsistent with cl 2.3(1) of the LEP 2013, the consent authority is required by cl 3.43(5) of the EPA Act to give this provision no effect in the assessment of the development application pursuant to s 4.15(1) of the EPA Act.

The Relevant Planning Framework

44. Prior to considering the contentions raised by the Respondent supporting the refusal of the development application on merit, it is necessary to determine whether the preconditions to the grant of consent are met: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135.

45. The development application was lodged by Regional Dooh Pty Ltd with the consent of the owners of the land, meeting the requirement for owners’ consent at s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

46. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not grant consent to a development unless it has considered whether the site is contaminated, and if the land is contaminated, is satisfied that the site is suitable (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. The Statement of Facts and Contentions detail the history of the approved uses of the site, which have or are occurring at the lower portion of the site some distance from the proposed location of the advertising sign. Further, the development application proposes the removal of the existing sign and involves limited evacuation or disturbance of the site. The annexed conditions require any demolition to be undertaken in accordance with Australian Standard AS 2601-2001. On these bases I accept the clause is satisfied.

State Environmental Planning Policy (Industry and Employment) 2021

47. The development application was referred to Transport for NSW (TfNSW) pursuant to s 3.16 of the SEPP IE as it was at the time of lodgement of the development application. TfNSW responded on 13 February 2025. On 6 March 2026 TfNSW advised that it concurred with the proposed development and recommended its conditions of consent which are incorporated into the conditions at Annexure A.

48. Chapter 3 “Advertising and signage” of the SEPP IE applies to the development. Pursuant to s 3.3 of the SEPP IE, Ch 3 applies to the whole of the State. Further, pursuant to s 3.4(1) it applies to all signage that:

(a) can be displayed with or without development consent under another environmental planning instrument that applies to the signage, and

(b) is visible from any public place or public reserve,

except as provided by this Chapter.

Note—

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

(2) This Chapter does not apply to signage that, or the display of which, is exempt development under an environmental planning instrument that applies to it, or that is exempt development under this Chapter.

49. Section 3.6 of the SEPP IE contains a precondition to consent which requires the consent authority to be satisfied that:

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

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

50. The Court’s consideration of the two matters at s 3.6 of the SEPP IE commences at [67] and concludes that the precondition at s 3.6 of the SEPP IE is met by the proposed signage.

51. Section 3.12 of the SEPP IE provides that any consent granted is subject to a duration of 15 years. That provision states:

3.12 Duration of consents

(1) A consent granted under this Part ceases to be in force—

(a) on the expiration of 15 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or

(b) if a lesser period is specified by the consent authority, on the expiration of the lesser period.

(2) The consent authority may specify a period of less than 15 years only if—

(a) before the commencement of this Part, the consent authority had adopted a policy of granting consents in relation to applications to display advertisements for a lesser period and the duration of the consent specified by the consent authority is consistent with that policy, or

(b) the area in which the advertisement is to be displayed is undergoing change in accordance with an environmental planning instrument that aims to change the nature and character of development and, in the opinion of the consent authority, the proposed advertisement would be inconsistent with that change, or

(c) the specification of a lesser period is required by another provision of this Chapter.

52. Consistent with s 3.12 of the SEPP IE the conditions at Annexure A include a condition which limits the duration of the consent to 15 years.

53. Finally, SEPP IE at s 3.21(1) provides specific controls for freestanding signs. That provision states:

The consent authority may grant consent to the display of a freestanding advertisement only if the advertising structure on which the advertisement is displayed does not protrude above the dominant skyline, including any buildings, structures or tree canopies, when viewed from ground level within a visual catchment of 1 kilometre.

54. The visual impact of the advertising sign was the subject of expert evidence and forms part of the fifth contention of the Respondent. The Court’s consideration of the provision commences at [137]. I find that the advertising structure on which the advertisement is displayed does not protrude above the dominant skyline, including any buildings, structures or tree canopies, when viewed from ground level within a visual catchment of 1 kilometre.

Schedule 5: Assessment Criteria

55. Section 3.6(1) of the SEPP IE contains a precondition to consent which requires the consent authority to be satisfied that the signage the subject of the application satisfies the assessment criteria specified in Sch 5. Those assessment criteria are:

1 Character of the area

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

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

2 Special areas

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

3 Views and vistas

• Does the proposal obscure or compromise important views?

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

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

4 Streetscape, setting or landscape

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

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

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

• Does the proposal screen unsightliness?

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

• Does the proposal require ongoing vegetation management?

5 Site and building

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

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

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

6 Associated devices and logos with advertisements and advertising structures

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

7 Illumination

• Would illumination result in unacceptable glare?

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

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

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

• Is the illumination subject to a curfew?

8 Safety

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

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

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

56. The Court’s consideration of the proposed development against the remaining criteria in Sch 5 of the SEPP IE commences at [101].

Coffs Harbour Local Environmental Plan 2013

57. The site is zoned E4 General Industrial. In determining the development application, I have given consideration to the zone objectives which are:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To permit industrial uses that do not detract from the core commercial functions of the Coffs Harbour City Centre.

• To encourage active living through the provision of healthy, walkable, green and safe built environments and streets, greener connections and walking and cycling infrastructure.

• To ensure development reflects design excellence and a high visual standard within the public domain.

58. The development application seeks consent to construct an advertising sign, which, as detailed at [1], includes a freestanding adverting structure. An advertising structure is defined as a structure used or to be used principally for the display of an advertisement.

59. Under the LEP 2013 the definition of advertisement is defined as “a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water”.

60. Finally, signage is defined under LEP 2013 and is extracted at [6].

61. Development for the purpose of advertising structure with a digital and static advertising sign, proposed in the development application, is an innominate permissible use in the E4 General Industrial zone.

62. The development application is compliant with the development standards for height: cl 4.3 “Height of buildings” in the LEP 2013.

63. Pursuant to cl 7.1 “Acid sulfate soils” in the LEP 2013, the proposed development is located on land mapped on the Acid Sulfate Soils map as Class 5. The proposed works will involve minor excavation to secure footings for the advertising structure. The Statement of Environmental Effects (SEE) estimates that less than 1 tonne of soil will be disturbed. The site is located within 500m of Class 4 land, however, does not propose works that will cause the water table to be lowered below 1m Australian Height Datum. I find that the provisions of cl 7.1 of the LEP 2012 are satisfied.

64. As required by cl 7.2 “Earthworks” I have considered the matters at 7.2(3) of the LEP 2013. The SEE estimates that less than 1 tonne of soil will be disturbed and further that excavation is separate from the existing uses on the site and adjoining properties. Having considered the listed matters in the context of the scope of the development proposed I find cl 7.2 of the LEP 2013 is satisfied.

65. Pursuant to cl 7.11 “Essential Services”, prior to the grant of consent of the consent authority I am satisfied that the following services essential for the development are available or that adequate arrangements have been made to make them available when required. Those services being:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

66. As the site is zoned E4 General Industrial, development consent must not be granted for development on land to which this clause applies unless the consent authority considers that the development exhibits design excellence: cl 7.12(3) of the LEP 2013. The Court’s consideration of the matters at cl 7.12(4) of the LEP 2013 commences at [117] and concludes that the precondition at cl 7.12 of the LEP 2013 is satisfied.

The advertising structure is consistent with the aims of the SEPP IE and satisfies the assessment criteria in Sch 5.

67. The Respondent contends that pursuant to s 3.6(a) of the SEPP IE the Development Application is contrary to the aims and objectives contained in s 3.1(1)(a) of the SEPP IE as the proposed signage is excessive in size and does not achieve the desired future character of the area.

68. Pursuant to s 3.6 of the SEPP IE, a consent authority, in this case the Court, cannot grant consent to display signage until it is satisfied of two matters. Firstly, that signage is consistent with the objectives of Ch 3, set out in s 3.1(1)(a). Secondly, that the signage the subject of the application satisfies the assessment criteria specified in Sch 5 of the SEPP IE: ss 3.6(b) and 3.15(2)(a).

69. The objectives at s 3.1(1) of the SEPP IE that signage must be consistent with are:

3.1 Aims, objectives etc

(1) This Chapter aims—

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

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

(ii) provides effective communication in suitable locations, and

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

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

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

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

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

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

70. In relation to the first matter, the consistency with the objectives, in these proceedings it is not contended that the proposed development is inconsistent with subs (b) through (e) of s 3.1(1) of the SEPP IE. The parties agree, and I accept, that the proposed development is not inconsistent with the objective to regulate signage under Part 4 of the EPA Act. The development application and the conditions of Annexure A are consistent with the objective to provide time limited consent, limiting the duration of the consent’s operation. Consistent with s 3.12 the consent is subject to a 15 year time limitation. The proposed development is not located in, or adjacent to, a transport corridor.

71. The matters in dispute relevant to the objectives of the SEPP IE, and compliance with s 3.6(b) are:

72. 3.1(1)(a) being to ensure that signage (including advertising) is consistent with the following objectives:

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

(ii) provides effective communication in suitable locations, and

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

72. The second matter the consent authority must be satisfied pursuant to s 3.6 of the SEPP IE is that the signage the subject of the application satisfies the assessment criteria in Sch 5 of the SEPP IE. The Respondent argues the development is contrary to cll 1, 4 and 5, namely:

1 Character of the area

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

…

4 Streetscape, setting or landscape

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

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

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

…

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

…

5 Site and building

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

…

Expert evidence in relation to the precondition at s 3.6(a) of the SEPP IE

73. The Court was assisted by urban design experts Mr Alan Cadogan for the Applicant and Ms Rachel Baker for the Respondent. Further, the Court was assisted by planning experts Mr David Waghorn for the Applicant and Ms Rachael Baker for the Respondent. The experts undertook joint conferencing, prepared a joint expert report and provided oral evidence during the hearing.

74. Relevant to the Respondent’s contention that the proposed advertising sign does not achieve the desired future character of the area, the urban design experts agree as follows:

75. That the site is not subject to any existing or desired future character statement in either the LEP 2013 or the DCP 2015.

76. That the road corridor is predominantly bound by E4 General Industrial to the east, and a mix of zones including R1 General Residential, R2 Low Density Residential and E3 Productivity Support to the west.

77. That the relevant area for consideration of character when assessing the advertising structure is the area between Boambee Road to the south and Halls Road to the North, an area approximately 1 kilometre in length (the area).

78. In her evidence Ms Baker concludes that the existing character of the area is defined by a “higher level feel” and expressed in the built environment through the streetscape and the current applicable planning controls. For the following reasons Ms Baker argues that the proposed development, an illuminated advertising sign, is inconsistent with the existing character for the following reasons:

79. Much of the existing industrial development is located on land that is well below (approximately 8AHD) the road alignment of the Pacific Highway (approximately 15.5AHD). She argues that in this context the bulk and scale of the existing buildings is reduced in comparison to the proposed advertising structure which is positioned directly adjacent to the Highway on higher ground.

80. The theme of existing signage in the area is business identification signage in various sizes, forms and locations within the road frontages. In her evidence Ms Baker gives weight to the absence of third party advertising in the area and that the only digital signage is the petrol station price boards.

81. The majority of existing signage was approved prior to the introduction of the development controls in cl F 5.1 of the DCP 2015 which she argues require signage to be designed and located to relate to the use of the building (see F5.1(1)) and are not to contain advertising promoting products or services not related to the approved use of the premises or site (see F5.1(2)).

82. The area includes excessive business identification signage, much of which were established prior to the introduction of the controls in cl F5.1 of the DCP 2015 and have resulted in visual clutter. Ms Baker concludes that this visual clutter is detrimental to the visual amenity of the area. Ms Baker argues that the addition of the proposed advertising sign will add to this detrimental visual clutter and will have a detrimental impact on the streetscape.

83. Notwithstanding the demolition of the existing sign (some 6.11m2) the development application will result in a materially larger sign of a new character (that being it is digital, illuminated and changing content every 10 seconds). The increased size, the inconsistency with the existing signage character and the increased visual clutter make the proposed advertising sign incompatible with the existing character of the area.

84. Further Ms Baker argues that the proposed advertising sign is also inconsistent with the desired future character. In determining the desired future character Ms Baker relies on three elements. Firstly, the draft changes to LEP 2013 in the draft LEP which seeks to prohibit signage (advertising structures) in the E4 General Industrial zone. Secondly, the Coffs Harbour Bypass Renewal Action Plan (Bypass Plan). Ms Baker argues the implementation of the Bypass Plan will improve the streetscape of the area and street level amenity through footpath widening, street trees and landscape planting as well as the undergrounding of powerlines. Thirdly, the controls of the DCP 2015 which Ms Baker argues contain a suite of provisions aimed at requiring signage in the area to be limited to that relating to the use of site or premises and not permitting third party advertising.

85. In conclusion Ms Baker argues that the proposed advertising sign is inconsistent with the existing character of the area, the desired future character of the area and as such is not consistent with objectives in s 3.1(1)(a) of the SEPP IE and does not satisfy criteria 1 “Character of the area” in Sch 5.

86. Accordingly, Mr Palmer submits that if the Court accepts Ms Baker’s evidence, the precondition to consent in s 3.6 of the SEPP IE is not met and consent cannot be granted to the development application by the Court.

87. In the alternative Mr Cadogan disagrees that all of the existing signage in the area is categorised as business identification signage and that no third-party advertising currently exists in the area. He argues that many existing premises have multiple signs not all characterised as either building identification or business identification signs but rather solely contain either logos or names of global brands. In his evidence he gives the example of premises who currently have multiple signs where one is a business identification sign (for example, advertising the name of an equipment supply or repair business) and the subsequent signs are third party advertisements for the brands sold by the business (for example, Mazda, Ford, Kubota etc). Mr Cadogan argues that strictly these subsequent signs, where they currently exist in the area, fall outside his interpretation of the LEP definition of business identification signs. On this basis he disagrees with Ms Baker’s conclusion that the area does not currently have third-party advertising signs as part of its character.

88. Mr Cadogan concludes that the proposed advertising sign is consistent with the existing character of the area.

89. Consistent with the submissions of Dr Smith, Mr Cadogan argues that the analysis of Ms Baker as to the inconsistency of the proposed advertising sign with the controls in cll F5.1(a) and F5.1(2) in the DCP 2015 should be given no weight to the extent those controls are inconsistent with the LEP 2013.

90. Mr Cadogan does not accept that the Bypass Plan can be relied on as a statement of desired future character on the basis that it is a high level document, relates to a 10.2km stretch of highway, is directed to public domain rather than private development and is a plan that forms part of the planning hierarchy.

91. Finally, Mr Cadogan argues that Ms Baker places too much weight on the amendments to the LEP 2013 proposed in the draft LEP changing the existing character to a new, different, desired future character. His reasoning is:

92. the draft LEP is not imminent nor certain.

93. The prohibition on third party advertising signage sought by the draft LEP is at odds with the provisions of the SEPP IE.

94. It is common for such a the draft LEP to incorporate savings provisions for current development applications, such as this matter.

95. Many existing signs in the area, on his evidence, are inconsistent with the provisions but will remain as part of the character of the area into the future.

96. Mr Cadogan concludes that the proposed advertising sign will remain consistent with the desired future character of the area.

97. The planning experts also provided evidence on the contentions raised by the Respondent. In their joint report they reached the following agreements:

98. That the proposed static advertisement on the southwestern face of the advertising sign will largely be shielded by the natural topography of the area and the landscape which adjoins the site to the south. They conclude that this face of the sign will not have a significant visual impact.

99. Further, the planning experts agree that the illumination of the advertising sign, of itself, is not a matter that warrants the refusal of the development application. However, Ms Baker is of the view that the fact of illumination is a relevant matter in determining the compatibility of the advertising sign with the character of the area.

100. In response to Ms Baker’s reliance on the draft LEP to inform desired future character, Mr Waghorn argues it should be given little weight on the following grounds:

101. The subject development application was lodged on 24 January 2025, well before the draft LEP was reported to Council on 19 March 2026.

102. At the time of joint reporting, the planning proposal had received gateway determination and been publicly notified but had not been endorsed by the Council. The draft LEP is not imminent nor certain.

103. The draft LEP may be a matter for consideration, but it cannot, be given determinative weight given there are no proposed changes to the objectives or other relevant controls so it would not change the assessment process applied to the current matter.

104. the draft LEP does not contain savings provisions, however they are customarily included in new environmental planning instruments. Such savings provisions typically provide that a development application, made but not finally determined before the commencement date of the new provisions, should be determined as if the new provisions have not commenced.

105. Mr Waghorn also provided evidence on character. In determining the existing character of the area Mr Waghorn notes that there are no specific character statements for the locality. He argues therefore that both the existing character, and the desired future character, is informed by the planning controls, existing built form and approved development consistent with the decision of the Court in Woollahra Municipal Council v SJD DB**2 Pty Ltd [2020] NSWLEC 115 at [59]. Applying this approach, Mr Waghorn notes:

106. The locality is characterised by an array of eclectic buildings, structures and advertising signs.

107. It is a transport corridor adjoined by a diverse range of land use zones, namely R1 and R2 Residential zones, E3 and E4 Employment zones and RE1 Public Recreation zone.

108. In closest proximity to the site of the advertising signs the character is of large industrial buildings which occupy the majority of the site and are surrounded by concrete aprons. These lots are oriented with the rear of the building fronting the Pacific Highway. Vehicular and pedestrian access to these sites is obtained from the internal road network (Ray McCarthy Drive). The rear road frontages of these sites contain an eclectic range of signage.

109. Mr Waghorn concludes that the advertising sign will complement the eclectic existing and desired future character of the visual catchment of the sign and the area. He disagrees with the weight Ms Baker places on the Bypass Plan and argues that due to the uncertainty of implementation, the focus of the plan on public, rather than private, land and the likelihood that the existing character will persist it should be given little weight in determining the desired future character.

Findings

89. Section 3.6 of the SEPP IE contains a precondition to consent which requires the consent authority to be satisfied firstly that signage is consistent with the objectives of the SEPP IE and secondly that the signage the subject of the application satisfies the assessment criteria in Sch 5 of the SEPP IE.

Is the signage consistent with the objectives at s 3.1(1)(a) of the SEPP IE

90. In addressing the first precondition, determining whether the signage is consistent with the objectives of this Chapter as set out in s 3.1(1)(a), there are three matters of which the Court must be satisfied. They are:

91. that signage is compatible with the desired amenity and visual character of an area

92. that signage provides effective communication in suitable locations, and

93. is of high quality design and finish.

94. To determine whether the advertising sign is compatible, I need to understand first what is the “desired amenity and visual character of an area” in which the signage is proposed.

95. Consistent with the decision of Preston CJ in in Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 150 (‘Save the Robots’) at [16] I accept the amenity of the neighbourhood and the reasonable expectations of its inhabitants are informed by the applicable environmental planning instruments and the uses permitted or prohibited under the current planning controls: see also Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 at [190]-[192] and Healy Capital Pty Ltd ATF Healy Family Super Fund v The Council of the City of Sydney [2026] NSWLEC 84 at [23].

96. The current planning controls in the applicable planning instruments and development control plans are relevant to ascertaining the desired amenity and visual character of the area and the compatibility of the proposed advertising sign with that character: Save the Robots at [14]-[16].

97. Those planning controls in the LEP 2013 are directed to continuation of the general industrial uses permitted in the E4 General Industrial zone and the full range of sign types permitted within the group term signage. Given my findings at [43] to the extent that the provisions in the DCP 2015 related to signage seek to limit the permitted range of signage to exclude advertising signage, those provisions are to no effect. Consistent with the reasoning in Save the Robots at [18] a permissible use is prima facie part of the expected visual amenity of the area as the reasonable expectations of residents as to the amenity of a neighbourhood are informed by the current planning controls in the planning scheme.

98. The Respondent argues that in considering the proposed advertising sign’s compatibility with the desired amenity and visual character of the area, I should give weight to the draft LEP and its objective to prohibit third party advertising in a number of zones, notably including the E4 General Industrial zone. On Ms Baker’s evidence the Respondent argues that the draft LEP, in combination with the Bypass Plan will result in a change to the existing character. I am not persuaded by this submission for three reasons. Firstly, if adopted, the draft LEP will not affect the continued presence of any existing signage in the area which will likely remain. Secondly, the draft LEP, whilst a relevant consideration in the evaluation of the development application pursuant to s 4.15(1)(d)(ii) of the EPA Act, is not drafted in terms directed to revitalisation, or new forms of development which would normally be the focus in precincts where a draft LEP sought a change in the character. For example, by changes to zoning, new permitted uses, or changes to principal development standards such as height, floor space ratio or the like. Thirdly, I accept the evidence of Mr Cadogan and Mr Waghorn that to the extent that the Bypass Plan is relevant to the determination of the future character of the area it is directed to public land and public infrastructure and is not anticipating change that would make the proposed advertising sign incompatible.

99. The existing approved development within the context of the site is also relevant to determining compatibility: SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112. In the context of this matter the location of the proposed sign is adjacent to the road reserve of the Pacific Highway. That road reserve is occupied by a narrow footpath and narrow lawn verges. Within the property boundary of the subject site there is an existing pylon sign (proposed to be removed as part of this development application) and a large, approximately 2000m2, industrial building with an approximate height of 6m. As described by Ms Baker, see [75], the majority of the site is below the road alignment by some 7m.

100. The immediately adjacent site contains an installation encompassing an elevated tractor and wall signage attached to the industrial building. I accept and adopt Mr Waghorn’s evidence on the existing character, summarised at [87]. I find that his evidence, and that of Mr Cadogan, is grounded by the analysis of the area in the Visual Impact Assessment (VIA) which allocates landscape character zones to the locations from which the sign will be visible. The site of the proposed advertising sign is in landscape character zone 3 which is described as being categorised by industrial truck and tractor sales uses. This accords with the observations made by the Court at the site view. The proposed advertising sign is compatible with this visual character.

101. Further, I accept the evidence of Mr Cadogan and Mr Waghorn that a number of signs within the locality are in effect advertising global brands (such as Mazda, Ford, Kubota etc) rather than individual businesses located on the sites. To the lay observer these signs are of the same character as the proposed advertising sign. In my view Ms Baker, in her evidence, places too much weight on her conclusion that the theme of the existing signage in the area is business identification signage.

102. Informed by the preceding I conclude that the proposed signage is compatible with the desired amenity and visual character of an area, thus is consistent with the objective in s 3.1(1)(a)(i) of the SEPP IE.

103. In relation to the remaining objectives in s 3.1(1)(a) of the SEPP IE, I am satisfied that the proposed advertising sign provides effective communication in a suitable location and is of high quality design and finish. The suitability of the location was not ultimately in dispute between the experts, and I accept that the site, adjoining the Pacific Highway within an established industrial locality, is an appropriate location for the display of advertising signage. I am also satisfied that the design of the structure is contemporary and appropriately proportioned to its setting. As discussed in my assessment of the Sch 5 criteria, the advertising sign incorporates high-quality materials and contemporary digital technology, including lighting controls that minimise visual impacts while maintaining the effectiveness of the advertisement. Accordingly, I find that the proposal is consistent with the objectives in s 3.1(1)(a)(ii) and (iii) of the SEPP IE.

Whether the signage satisfies the assessment criteria at Sch 5 of the SEPP IE

101. The second precondition contained in s 3.6 of the SEPP IE is that the consent authority is satisfied that the signage the subject of the development application satisfies the assessment criteria specified in Sch 5 of the SEPP IE.

102. Firstly, addressing the uncontested criteria in Sch 5 of the SEPP IE, I find as follows:

103. Assessment criteria 2: Special Areas.

The subject site is not located within an environmentally sensitive area, heritage conservation area, open space area or the like. The site is physically separated from residential areas to the northwest by the Pacific Highway. The development satisfies assessment criteria 2.

2. Assessment criteria 3: Views and vistas.

There are no identified views or vistas that would be obscured by the proposed signage. Further, the proposed sign will not dominate the skyline nor breach the dominant tree line. Due to the separation of the proposed signage from existing signage, there is no identified interruption of the viewing rights of other advertisers. The development satisfies assessment criteria 3.

3. Assessment criteria 6: Associated devices and logos with advertisements.

The amended design includes a logo within the skirting at the base of the advertisement structure. There are no safety devices, ladders or the like that would add bulk or clutter to the structure are required. The development satisfies assessment criteria 6.

4. Assessment Criteria 7: Illumination

The amended development application includes two reports detailing an assessment of the proposed signage against the applicable Australian Standards for Outdoor Lighting, the Transport Corridor Outdoor Advertising and Signage Guidelines 2017 (TCOAS Guidelines) and examining the design excellence and sustainability merits of the digital componentry. The first report was by Electrolight Australia Pty Ltd (Electrolight Report), the second prepared by BSV Pty Ltd. Only the south bound face is proposed to be digital. The design incorporates a sensor to ensure that luminance levels are only bright enough to ensure legibility and are adaptable in accordance with ambient light levels. The proposed signage will comply with the TCOAS Guidelines with the following maximum luminance levels:

“Daytime: 6000 cd/sqm

Morning and evening twilight and inclement weather: 500 ch/sqm

Night time: 150 cd/sqm”

(Electrolight Report)

With the assistance of these reports and the evidence of the experts in the proceedings I find that the development satisfies criteria 7. Further, based on the preceding I find no basis for the proposed increase in the curfew time from between 12am and 4am to between 11pm to 6am proposed by the Respondent. Accordingly, the following condition will apply to the consent:

“21 Curfew time

The digital advertising sign display must not display advertisements to be switched off between the hours of 12:00am and 4:00am daily.”

5. Assessment Criteria 8: Safety

The development application is accompanied by a Traffic Impact Assessment (TIA) prepared by Bitzios Consulting. The TIA was completed on the basis of a 10 second static dwell time for the digital sign on the south bound face. The TIA concludes that the proposed sign is not expected to reduce the safety of pedestrian, cyclist or motorist movements. Further, the development application was referred to TfNSW which concurred with the development, subject to the following condition being imposed. I have included this condition as a condition of consent in Annexure A.

“22. A road safety check of the digital advertising sign must be carried in accordance with the Transport Corridor Outdoor Advertising and Signage Guidelines (TCOAS) Guidelines, Part 3 Advertisements and Road Safety after 12 months and within 18 months of the installation.”

On the basis of the TIA and the concurrence of TfNSW, I accept that this criterion is met and that a dwell time of 10 seconds is appropriate.

103. The following paragraphs make findings on the contested criteria in Sch 5 of the SEPP IE.

Character of the Area

104. Consistent with my findings at [100] I find that the proposed advertising sign is compatible with the character of the area which is predominantly characterised by industrial, discount retail and auto alley uses. I note that there are no delineated themes for outdoor advertising that apply, beyond the planning controls in the LEP 2013 and the DCP 2015. The development satisfies assessment criteria 1.

Streetscape, setting or landscape.

105. The shape and size of the proposed advertising sign is not of a scale, proportion or form that is in contrast to or incompatible with the types and form of signage that currently exist in the area. The proposed sign is consistent with the types of signage that are permitted by the planning controls.

106. The development application includes the demolition of an existing sign and construction of the proposed advertising sign. Consistent with my findings at [137]-[141], I am not persuaded that the relevant area for the sign is currently characterised by visual clutter. At the conclusion of the implementation of the consent the advertising sign will be the sole sign on the site.

107. The maintenance of visibility of the sign does not rely on ongoing vegetation management.

108. Neither the Respondent nor the Applicant nor their experts argue that the Court should give weight to the potential for the proposed advertising sign to screen ugliness. I agree that this consideration in the criterion is not applicable to the assessment of the current development application.

109. I find that the proposed advertising sign has been designed and located having regard to the views of the sign within the context of the street, nearby buildings, the skyline and tree canopy.

110. The development satisfies assessment criteria 4.

Site and Building

111. The first criterion under this consideration is a duplicate of the assessment of compatibility with the site and the area which is discussed elsewhere in this judgment. I rely on my earlier reasoning and findings to conclude that the first matter is satisfied.

112. The site, as described at [97], provides both visual and topographic separation between the existing building and use of the site and the proposed advertising sign. In doing so the location of the proposed advertising sign respects the existing features of the site.

113. In relation to the final criteria, I am satisfied that the incorporation the technology and lighting controls described at [102(4)] are consistent with the proposal showing innovation.

114. The development satisfies assessment criteria 5.

115. Having assessed the proposed advertising sign against the relevant criteria in Sch 5 of the SEPP IE I am satisfied that the advertising sign will have an acceptable impact: both generally and in relation to the matters particularised by the Respondent.

116. For the reasons stated above, I am satisfied that the proposal achieves those objectives set out in s 3.1(1)(a) of the SEPP IE, and that the signage the subject of the development application satisfies the assessment criteria specified in Sch 5. Accordingly, I am satisfied in respect of the matters about which the Court must be satisfied at s 3.6 of the SEPP IE.

Does the development exhibit design excellence?

117. An Urban Design and Design Excellence Assessment prepared by Mr Cadogan for Urbanac Pty Ltd forms part of the amended development application. Further, an Urban Design Landscape Character and VIA forms part of the application. Ms Rachel Baker has also prepared a Design Excellence Report assessing the amended development against the provisions of cl 7.12 ‘Design excellence’ in the LEP 2013. I have read and considered these reports in the determination of the development application.

118. Clause 7.12 ‘Design excellence’ applies to the development application as the site is zoned E4 General Industrial: cl 7.12(2) of the LEP 2013.

119. Clause 7.12 sets jurisdictional preconditions and mandatory matters for consideration, one in subclause (3) and the other in subclause (4).

120. Clause 7.12 (3) provides:

Development consent must not be granted for development on land to which this clause applies unless the consent authority considers that the development exhibits design excellence.

121. Clause 7.12(4) specifies matters that the consent authority must consider in deciding whether the proposed development exhibits design excellence. They are:

In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters—

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

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

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

(d) the requirements of the Coffs Harbour DCP,

(e) how the development addresses the following matters—

(i) the suitability of the land for development,

(ii) existing and proposed uses and use mix,

(iii) heritage issues and streetscape constraints,

(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

(v) bulk, massing and modulation of buildings,

(vi) street frontage heights,

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

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

(ix) pedestrian, cycle, vehicular and service access, circulation and requirements,

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

122. In determining the development application, the consent authority is required to give consideration to each issue at sub cl (4) in deciding whether a development exhibits design excellence: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 at [70]. The matters for consideration at cl 7.12(4) of the LEP 2013 are cumulative matters which, when considered together, determine whether the proposed development, as a whole, exhibits design excellence.

123. Having considered the matters at cl 7.12(4) of the LEP 2013, I am satisfied that the proposed advertising exhibits design excellence satisfying the precondition at sub cl (3) of the provision. In making this determination of satisfaction I have given consideration to the matters listed at sub cl (4) of the provision. In relation to the specific factors at cl 7.12(4) of the LEP 2013 and the expert evidence I make the following comments in support of my finding of satisfaction.

124. For the reasons given at [90]–[116] and in particular my findings at [100] and [111]–[114], I am satisfied that the proposed advertising sign achieves a high standard of architectural design, materials and detailing appropriate to its function and location. The structure is of high-quality design and finish, is appropriately proportioned to its setting and incorporates contemporary digital technology and lighting controls.

125. In relation to the matter at of cl 7.12(4)(b) concerning quality and amenity of the public domain, I am satisfied that the proposed development will achieve an improvement in the amenity and quality of the public domain. In considering this matter, I have given weight to the compliance of the development with the planning controls. I prefer the reasoning and evidence of Mr Cadogan and Mr Waghorn that the proposed advertising sign is compatible with the existing and desired future character, findings which are consistent with the conclusion that the form and external appearance of the development will improve the quality and amenity of the public domain. For the reasons given at [91]–[110], I am satisfied that the form and external appearance of the development will not detract from the quality or amenity of the public domain. In particular, I have found at [106] that the replacement of the existing sign with a single advertising structure will not result in unacceptable visual clutter and, at [109], that the proposal has been designed having regard to its relationship with the streetscape, nearby buildings, the skyline and tree canopy.

126. With the assistance of the VIA I find that there is no factual or evidentiary basis for a concern that the development will detrimentally impact on view corridors. I am satisfied that the development will not detrimentally impact on view corridors. For the reasons given at [102(2)] and [109], I am satisfied that the proposed development will not detrimentally impact view corridors or significant public vistas. The sign will not dominate the skyline, breach the tree canopy or obscure important views.

127. Consistent with my findings in the following section, I am satisfied that that the development application satisfactorily addresses the requirements of the DCP 2015.

128. Finally, I am satisfied that the development has addressed the matters at cl 7.12(4)(e) as follows:

(i) the suitability of the land for development,

For the reasons given at [74] and [93]–[99], I am satisfied that the site is suitable for the proposed development. The advertising sign is permissible with consent, is compatible with the character of the locality and can be accommodated on the site without unacceptable environmental or amenity impacts.

(ii) existing and proposed uses and use mix,

For the reasons given at [74] and [93]–[99], I am satisfied that the proposal is compatible with the existing pattern of industrial, commercial and transport-related land uses in the area.

(iii) heritage issues and streetscape constraints,

The site is not affected by heritage or specific streetscape constraints.

(iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form,

For the reasons given at [97]–[100] and [111]–[114], I am satisfied that the proposal has an appropriate relationship with existing development on the site and adjoining land. Its siting, scale and separation ensure that it will not give rise to unacceptable amenity impacts.

(v) bulk, massing and modulation of buildings,

For the reasons given at [97], [98], [106] and [112]–[113], I am satisfied that the bulk and massing of the advertising sign are appropriate having regard to the dimensions of the site and the surrounding industrial built form. The structure will not appear excessive or out of scale within its context.

(vi) street frontage heights,

For the reasons given at [98]–[100] and [110], I am satisfied that the height of the proposed advertising sign is appropriate to its location adjacent to the Pacific Highway and is compatible with the character of the area.

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

For the reasons given at [102(2)], [102(4)], [102(5)] and [105], I am satisfied that the proposal will not give rise to unacceptable environmental impacts. In particular, I accept that illumination, visual impacts and road safety have been appropriately addressed by the design of the proposal and the conditions of consent.

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

I am satisfied that the proposal incorporates contemporary lighting technology and operational controls that minimise unnecessary environmental impacts. The proposal therefore achieves an appropriate outcome having regard to the principles of ecologically sustainable development.

(ix) pedestrian, cycle, vehicular and service access, circulation and requirements,

I accept the evidence of the Traffic Impact Assessment and the concurrence of TfNSW that the proposal will not adversely affect pedestrian, cyclist or vehicular movements. Subject to the conditions of consent, I am satisfied that access and circulation issues have been appropriately addressed.

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

I am satisfied that the proposal will have an acceptable relationship with the public domain. No additional public domain works are required to render the development acceptable.

129. For the preceding reasons, having considered the matters at cl 7.12(4) of the LEP 2013 wholistically, I am satisfied that the proposed development exhibits design excellence satisfying the precondition at sub cl (3) of the provision.

Is the development inconsistent with the provisions of the DCP 2015?

130. Given my findings at [43] the evidence of the experts in relation to the provisions at cll F5.1.1(a) and F5.1.2 are not a relevant consideration.

131. The remaining provision contended for consideration is cl F5.1.1(e) which states:

“signage is to be designed and located to:

…

(e) have regard to the view of the sign (and any supporting structure/ cabling) including visibility from the street levels and nearby higher buildings, and against the skyline.”

132. Mr Waghorn, relying on the assessment and analysis contained in the VIA, concludes that this provision of the DCP 2015 is met by the advertising sign. He reasons that the advertising sign will be read in conjunction with a number of existing buildings, signs and elements within the streetscape when viewed from the Pacific Highway. He concludes that when viewed in this context the advertising sign will not be jarring or even readily discernible. From a southbound viewpoint Mr Waghorn adds that the proposed sign will be viewed at a similar elevation to either signage in the locality despite the site being elevated comparative to the location of many of the larger signage elements on the area. Further, he argues that there remains a clear visual and physical separation between the existing signage in the area and the proposed advertising sign which he argues will achieve effective communication.

133. Having analysed the VIA, Mr Waghorn concludes that given the topography and the prevalence of other existing signage there will be only limited vantage points in close proximity to the site where the entirety of the sign will be visible to a passing motorist. At these locations, given the narrow field of view, the sign will be read in conjunction with existing building, other signage, and against the backdrop of trees and landscaping. He concludes that the proposed advertising sign meets the requirements of cl F5.1(1)(e) of the DCP 2015.

134. In the alternative, Ms Baker argues that the advertising sign does not meet the requirements of cl F5.1(1)(e) of the DCP 2015 and the non compliance adds to the grounds for the refusal of consent to the development application. Her reasoning can be summarised as follows:

135. The proposed advertising sign is inconsistent with the existing character of outdoor signage in the area.

136. The development application introduces digital advertising and dwell time characteristics that don’t exist in the area currently.

137. The sign will be visible above the height of the industrial development located in proximity to the site.

138. The scale, location adjacent the Pacific Highway, and the digital illuminated elements increase the magnitude of visibility from street level.

Findings

135. I accept and prefer the evidence of Mr Waghorn summarised at [132] and [133]. Consistent with my earlier findings that the advertising sign is compatible with the desired amenity and existing character of the area, it follows that I don’t accept the evidence of Ms Baker that the advertising sign does not meet the requirements of cl F5.1(1)(e) of the DCP 2015 and the noncompliance adds to the grounds for the refusal of consent to the development application.

136. I find that the proposed advertising sign meets the requirements of cl F5.1(e) as it has been designed and located having regard to the views of the sign within the context of the street, nearby buildings and the skyline. When the proposed advertising sign is considered against each of those parameters it is complementary to them.

Does the development have a detrimental visual impact and contribute to visual clutter?

137. Visual clutter is not a term that is defined in either the SEPP IE, the LEP 2013 or the DCP 2015.

138. The visual impact of the proposed sign, and whether it results in visual clutter, must be considered in the context of its proposed location. When considering that context in the present circumstances, I find that there is no adverse visual impact or unacceptable visual clutter, and the proposed sign will sit appropriately within the streetscape. I reach this conclusion for the following reasons.

139. The development application includes the proposed demolition of an existing vertically oriented pylon sign on the site. If the development application is approved the subject site will contain only one sign structure: the proposed advertising sign. The road verge of the Old Pacific Highway within proximity of the site contains an installation of an elevated tractor and a series of three wall mounted business identification/advertising signs attached to an industrial building at 8 Ray McCarthy Drive.

140. The site is zoned E4 General Industrial, a zoning which seeks to provide land for a range of industrial, warehouse, logistics and related land uses. The presence of signage identifying premises and advertising products and services is part of the expected visual context of the zone.

141. Consistent with the decision of the Court in SLR Consulting Australia Pty Ltd v Wingecarribee Shire Council [2025] NSWLEC 1402 at [71], if the meaning of “visual clutter” is informed by the definition in the Macquarie Dictionary, being “to heap, litter, or strew in a disorderly manner” or “a disorderly heap or assemblage”, I am satisfied that the proposed sign does not create or exacerbate a disorderly assemblage of signs. Instead, the proposed sign replaces an existing sign in a roadside verge where it and any existing signs are spaced sufficiently apart so as to be visually separate.

Conclusion

142. Having considered the mandatory matters relevant to the determination, I am satisfied that the preconditions for the grant of consent have been met. It was therefore necessary to determine the merit issues raised by the Respondent and assess the development under s 4.15 of the EPA Act. Having considered the expert evidence and submissions, I am satisfied that neither the matters raised by the Respondent nor the assessment under s 4.15 of the EPA Act warrant refusal of the application. Accordingly, I find that development consent should be granted for the proposed advertising sign, subject to the conditions in Annexure A.

Orders

143. The Court orders that:

144. The appeal is upheld.

145. Development application DA/0480/2025 for demolition and the construction of a freestanding structure to contain a digital and static advertising sign (advertising sign) at Lot 126 DP 825107, 10 Ray McCarthy Drive, Coffs Harbour is determined by the grant of consent subject to the conditions in Annexure A.

146. Exhibits are returned with the exception of Exhibits A, 1, 2 and 3.

D Dickson

Commissioner of the Court

Annexure A (283 KB, pdf)

**********