Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney

Relevant planning controls

1. The site is zoned E1 Local Centre under SLEP. The proposed uses are permissible with consent.
2. The site is subject to maximum height and floor space ratio (FSR) controls under cll 4.3 and 4.4 of SLEP. Alternative height and FSR controls are permissible under cl 6.60D, subject to demonstrating compliance with subcl 6.60D(4), because the site is located within the OSCCP.
3. Clause 5.10 Heritage conservation applies because the site is in a heritage conservation area (HCA). Before granting consent, consideration must be given to the effect of the proposed development on the heritage significance of the area (cl 5.10(4)).
4. Division 4 Design excellence applies. The objective of the Division is "to deliver the highest standard of architectural, urban and landscape design" (cl 6.21). Under cl 6.21C(1), development consent must not be granted unless the consent authority is of the opinion that the proposed development exhibits design excellence. Clause 6.21C(2) specifies matters for consideration by the consent authority in forming that opinion, as follows: (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain, (c) whether the proposed development detrimentally impacts on view corridors, (d) how the proposed development addresses the following matters - (i) the suitability of the land for development, (ii) the existing and proposed uses and use mix, (iii) any heritage issues and streetscape constraints, (iv) the location of any tower proposed, having regard to the need to achieve an acceptable relationship with other towers, existing or proposed, on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) the bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts, such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) the achievement of the principles of ecologically sustainable development, (ix) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of any pedestrian network, (x) the impact on, and any proposed improvements to, the public domain, (xi) the impact on any special character area, (xii) achieving appropriate interfaces at ground level between the building and the public domain, (xiii) excellence and integration of landscape design.
5. Clause 6.60D(5) provides that consent must not be granted unless the consent authority has considered whether the development promotes land uses that will attract pedestrian traffic along ground floor street frontages in the OSCCP.
6. State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP) applies. Chapter 3 applies to signage across the state (ss 3.3 and 3.4).
7. Section 3.6 provides that consent must not be granted for the display of signage unless the consent authority is satisfied that the signage is consistent with the objectives of Ch 3 as set out in s 3.1(1)(a) and satisfies the assessment criteria in Sch 5.
8. Section 3.1(1) sets out the aims of Chapter 3 as follows: (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.
9. The assessment criteria in Sch 5 include: 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? … 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? … 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? … 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?
10. Part 3.3 applies to the proposed billboard (s 3.7), and development consent is required under s 3.9.
11. Section 3.8 prohibits the display of advertisements in HCAs.
12. Section 3.15 applies because the proposed billboard has a display area greater than 20m2 and is higher than 8m above the ground. Section 3.15(2) provides that consent must not be granted unless: (a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 5 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (b) the consent authority gave a copy of the application to TfNSW before the application is exhibited if the application is an application for the display of an advertisement to which section 3.16 applies.
13. Section 3.16 applies because s 3.15 applies and the proposed billboard is within 250m of and visible from a classified road. Section 3.16(2) provides that consent must not be granted without concurrence from Transport. In determining whether to grant concurrence, s 3.16(3) requires Transport to consider: (a) the impact of the display of the advertisement on traffic safety, and (b) the Guidelines.
14. While Transport has not granted concurrence to the proposed billboard, 39(6)(a) of the Court Act provides that the Court "may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted". In relying on s 39(6), the Court must consider the requirements in 3.16(3).
15. Section 3.11 provides that consent must not be granted for the display of an advertisement to which s 3.16 applies unless the advertisement: (a) is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and (b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 5 and the consent authority is satisfied that the proposal is acceptable in terms of - (i) design, and (ii) road safety, and (iii) the public benefits to be provided in connection with the display of the advertisement, and (c) satisfies any other relevant requirements of this Chapter.
16. The Guidelines in s 3.16(3)(b) are defined as "the provisions of the publication titled Transport Corridor Outdoor Advertising and Signage Guidelines approved by the Minister for the purposes of this Chapter and published in the Gazette on the date on which State Environmental Planning Policy No 64-Advertising and Signage (Amendment No 3) is published on the NSW legislation website" (s 3.2).
17. Sydney Development Control Plan 2012 (SDCP) applies to the site and contains requirements for heritage and signage.

Existing use rights

1. Existing uses are regulated under Div 4.11 of the EPA Act. "Existing use" is defined in s 4.65 as follows: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and (b) the use of a building, work or land - (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
2. Section 4.66 provides for the continuation of and limitations on existing uses: (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises - (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. (4) During the period commencing on 25 March 2020 and ending on 25 March 2022, the reference to 12 months in subsection (3) is taken to be a reference to 3 years.
3. Section 4.68 is also relevant, and provides: (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises - (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2)(e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. (4) During the period commencing on 25 March 2020 and ending on 25 March 2022, the reference to 12 months in subsection (3) is taken to be a reference to 3 years.
4. Pursuant to s 4.67 of the EPA Act, s 166 of the EPA Regulation regulates the rebuilding of buildings and works used for existing uses as follows: (1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding must be - (a) for the existing use of the building or work and for no other use, and (b) carried out only on the land on which the building or work was erected or carried out immediately before the relevant day.

Proceedings

1. A site view was conducted at the commencement of the hearing, including the visual catchment of the site as agreed by the parties. The Court heard from one submitter, who had previously objected to the proposal but at the time of the hearing expressed support.
2. The parties relied on evidence from the following experts. Field Experts Joint report/s Planning Applicant: Peter Strudwick Planning and Urban Design Joint Expert Report (JER), 22 August 2024 Respondent: Bryan Li Urban design Applicant: Shaun Carter Respondent: Julia Pressick Heritage Applicant: John Oultram Heritage JER, 16 August 2024 Respondent: John Poulton Traffic Applicant: Tom Steal Traffic JER, 16 September 2024 Respondent: David McTiernan

1. The experts were present for the site view and answered questions during the hearing.

History of the billboard

1. For this section I rely on the expert heritage evidence and the written submissions provided by Save the Robots and Council.
2. The building at 191-195 Oxford Street was designed by Ernest Lindsay Thompson, and the approved plans from 1909 do not include any roof sign. The parties agree that a roof sign was erected at some point in the 1920s, based on two undated photographs from that period (Ex D, tab 25, p 19).
3. The next photographs submitted to the Court show various signs on the roof in 1932 (Ex B, tab 61), 1934 and 1943 (Ex K), 1953, 1954, 1959, 1960, 1961 ('Capstan sign'), 1968 ('Esso sign'), 1978 ('Firestone sign') and 1984 ('Johnnie Walker sign') (Ex B, tabs 61-64). The parties agree that the structures on which these signs are displayed has varied over time, but the timing and extent of the variations are not agreed.

Historical controls: building and planning

1. The Local Government Act 1919 (LG Act) entered into force on 1 January 1920. Section 311 made the erection of a building permissible with consent.
2. In 1945, the LG Act was amended to include planning provisions in Part XIIA. Pursuant to these and upon amendment of the LG Act, on 27 June 1951 the County of Cumberland Planning Scheme Ordinance (CCPSO) came into effect and applied to the site. The site was zoned County Centre and advertising billboards were permissible with consent. CCPSO included provision for existing uses (clause 32).
3. In 1971, the City of Sydney Planning Scheme Ordinance (CSPSO) came into force. The site was subject to a County Road Reservation. Buildings and structures were permissible with consent if it was apparent the road purpose would not be required within a reasonable period (cl 15), and existing uses were protected (cl 26).
4. On 1 September 1980, the EPA Act entered into force. The relevant provisions of SLEP made pursuant to this are outlined above from [24].
5. On 16 March 2001, State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) came into effect. SEPP 64 introduced a prohibition on advertising signage on land within a heritage area (excluding railway stations) (cl 10). This prohibition applied to the site which fell within what was then the Paddington Urban Conservation Area, an HCA under the South Sydney Local Environmental Plan 1998.
6. On 1 March 2022, the Industry SEPP entered into force. The relevant provisions of this SEPP are outlined above from [29]. Section 3.8(1) prohibits advertising in heritage areas in the same terms as cl 10 of SEPP 64.

Historical controls: advertising structures and displays

1. On 24 February 1933, Ordinance 55 under the LG Act entered into force. Clause 4 required permits to be obtained before erecting an advertising structure and before displaying an advertisement. Licences for the direction or use of an advertising structure could be granted (and renewed) for periods up to three years (clause 5).
2. On 30 March 1974, Ordinance 55 was repealed and replaced with a new Ordinance 55. This regulated advertisements and structures used for the display of advertisements, and also required licences to be obtained. Licences could be for up to 5 years until the ordinance was amended on 19 July 1991 to reduce this to a maximum of 2 years. Ordinance 55 remained in force until 1 September 1995.

Historical approvals for the billboard

1. There is no evidence of approval for the erection of the advertising sign or supporting structure in the 1920s.
2. The earliest evidence of approval before the Court is a City Building Surveyor's Department note in 1967, which records approval for a "structural support for a roof sign" in 1967.
3. A detailed overview of the subsequent applications for, grants of and refusals of consent for advertising at the site is provided in Council's written submission filed on 17 October 2024. This may be summarised as follows: 1. 1969: City Building Surveyor's Department note records application for sign structure made in May, disapproved in September. 2. 1979: consent granted for "Johnnie Walker sign", including condition (C)(ii) that approval "shall not be for more than five years after the completion of the necessary works", and a notation requiring approval for the works by the City Planner and Building Surveyor. 3. 1980: building approval granted for works for the Johnnie Walker sign. 4. 1984: Council letter setting out terms and conditions of the 1979 approval, requiring removal of the sign by 31 October 1984. 5. 1984-85: Two applications to extend the consent by 5 years, both of which were refused. Two notices to comply issued by Council. 6. 1985-86: Appeals to this Court, resulting in the grant of consent for a further 5 years until February 1991: Claude Neon Ltd v Sydney City Council (1986) 61 LGRA 195. 7. 1986-87: Applications lodged for a licence and development consent for the "Sterling 25s sign". Appeal to this Court (presumably based on deemed refusal), which was dismissed. 8. 1987: Application for development consent, refused. 9. 1989: Council notice to remove the "Speeding sign" unlawfully installed in 1988. 10. 1989: Application for development consent for "Triple M sign". Approved by Council with the condition that the entire sign be removed on or before 3 February 1991, the date and condition being consistent with those imposed by the Court in 1986. 11. 1991: Council issued notice to comply with the 1986 approval, removing the sign and associated structures. 12. 1991: Application for development consent to continue to display the Triple M sign, granted for a period of 5 years until 31 October 1996 and requiring consent for any changes in wording. 13. 1995: Application to change the display to a "Westpac sign". Granted until 31 October 1996 with a requirement for an application for a licence under Ordinance 55 to be made. 14. 1996: Application to modify the 1995 consent, extending the duration and changing the display to a "Westpac 2 sign". Granted with an end date of 31 October 1997. 15. 1996: Application to modify the consent, extending the duration to 31 December 2001. Modification approved in part, with an expiry of 31 December 1998. 16. 1998: Application for development consent for a "Nokia sign" including electronic display for three years. Granted 1 February 1999 for a static sign for 12 months, with a condition that the sign and all associated structures including pre-existing structures be fully removed and the roof made good. Council's resolution to grant consent included the following: "(B) The Council advise the applicant, that prior to the end of 1999 the applicant shall assist in the preparation of an agreed urban design strategy for a new integrated contemporary structure. This may in turn lead to the submission of a development application for a new advertising structure, which may include LED or LCD displays and should include provisions for community messages/broadcasts. This resolution should in no way be taken as an indication that any structure in this location would necessarily be approved." 1. 1999: Appeal proceedings commenced in this Court and discontinued. 2. 1999: application to extend the consent by 12 months to 10 February 2001. Granted, subject to previous conditions. 3. 2023: Council issued notice of intention to issue an order to demolish under Div 9.3 and Sch 5, Pt 1 of the EPA Act. 4. 2024: Council issued order under Div 9.3 and Sch 5, Pt 1 to remove the sign and associated structures. Save the Robots commenced a class 1 appeal in respect of that order.

Existing use rights

1. The parties agree that the display of advertisements has been prohibited on the site since SEPP 64 came into effect on 16 March 2001. For the display of advertisements to be protected as an existing use, the applicant must establish that the existing billboard was lawfully used for this purpose immediately prior to that date.
2. The applicant bears the onus of establishing an existing use right: Wollongong City Council v Ensile Pty Ltd (No 4) (2008) 71 NSWLR 563; [2008] NSWLEC 149 at [20]-[26]; Liverpool City Council v Maller Holdings Pty Ltd (2013) 211 LGERA 360; [2013] NSWLEC 154 at [68]. The applicant has the onus of proving on the balance of probabilities that it is within the exception identified in ss 4.66 or 4.68.
3. While ss 4.66(1) and 4.68(1) of the EPA Act authorise the continuation of existing uses without the need for development consent, rebuilding and intensification are excluded under subss 4.66(2)(a) and (c) and 4.68(2)(a) and (c).
4. Accordingly, if the display of advertising signage is protected by existing use rights, then the proposed billboard must be within the scope of the rebuilding permissible under s 166 of the EPA Regulation and consent must be obtained under SLEP and the Industry SEPP. Each requires a merit assessment.
5. Below I summarise the submissions made by Save the Robots and Council on existing uses. I return to the merits of the proposed billboard at [95].

The applicant's submissions

1. Save the Robots submits that the development benefits from existing use rights which arose from the lawful use of the site for advertising immediately prior to the introduction of CCPSO in 1951, as follows:
2. The billboard was lawfully used immediately prior to the coming into force of CCPSO in 1951. There is photographic evidence of advertising signs in use at some point in the 1920s, and again in 1932, 1934 and 1943. Although no consent can be found for it, there is evidence that a sign structure was erected in 1948. Assessor O'Neill's 1948 decision refers to Claude Neon having a lease of the site since 1948 (Ex E, tab 3, p 109). Reports to Council in subsequent years refer to a rooftop sign on the site since approximately 1948 (Ex 1, Part B, pp 141, 152, 197, 246).
3. It is not unusual for there to be gaps in evidence for buildings over 100 years. Inferences must be drawn from the available documents which survive Jojeni Investments v Mosman Council (2015) 208 LGERA 54; [2015] NSWCA 147 at [23] and the presumption of regularity Darley Australia v Walfertan Processors (2012) 188 LGERA 26; [2012] NSWCA 48 at [114]-[120]; Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105; [2002] NSWCA 269 at [48]. Save the Robots says that the prominence of this sign is an indicator of its lawfulness.
4. The licencing system under Ordinance 55 did not purport to introduce restrictions on the use of land, but merely on the structure and content of signs. Uses of land continued to be unregulated in NSW until the introduction of town planning controls in 1945, and use of land on the site was not regulated until the coming into force of the CCPSO in 1951.
5. The use of the land for advertising is distinguishable from development consents for specific sign structures or any particular consent to display any particular advertising sign: Kensington and Norwood City Council v Claude Neon Ltd (1979) 22 SASR 91; Parramatta City Council v Australian Posters Pty Limited (1986) 58 LGRA 213 at 218; APN Outdoor (Trading) Pty Limited v Melbourne City Council (2012) 187 LGERA 231. The existing use rights claimed relate to the purpose of advertising signage, separate from any rights derived from development consents for the sign facing or the structure itself under s 4.65(b).
6. The 1999 consent did not expressly require surrender of the existing use right. According to Save the Robots, if Council has pursued enforcement actions such that the structures were physically removed and the advertising use ceased, then it would have had this effect. The 1999 consent expressly contemplated future consents, which should be taken as recognition of existing use rights.
7. There were only a few weeks between the expiry of the 1999 consent and the coming into force of SEPP 64. Save the Robots argues that this short period is not significant.
8. Save the Robots argues that the proposal involves the rebuilding and intensification of the existing use of the land for the purpose of advertising signage, as contemplated by s 166 of the EPA Regulation. The digitalisation of the sign does not change the characterisation of the use, it is a permissible evolution contemplated within existing uses.

The respondent's submissions

1. Council submits that Save the Robots have not established continuing lawful use, as follows:
2. The 1999 consent is the last consent which authorised any advertising use. As modified, it expired on 10 February 2001. The 1999 consent required on its expiry the removal of the sign and all associated supporting structures including any pre-existing structures (by way of condition (4)).
3. Council submits that the use was unlawful after 10 February 2001, both because the 1999 consent had expired and because the condition requiring removal of the sign and structures had not been complied with.
4. The use would have been abandoned under s 4.66(3) of the EPA Act but for the unlawful conduct of not complying with the 1999 consent. Council argues that the applicant cannot rely on unlawful conduct to its advantage.
5. The use was not lawful in 1951 when the CCPSO commenced, as consent has been required for the erection of a billboard since the coming into force of the LG Act in 1920. No evidence has been provided of consent.
6. Additionally, Council argues that the use was also not lawful in 1951 as licensing for the display of advertisements on the billboard structure has been required, in addition to consent for the structure itself, under Ordinance 55 since 1933. No evidence has been provided of licensing in 1951.
7. According to Council, the presumption of regularity is inconsistent with the history of consents for advertising uses, which are for confined periods of time (no more than a few years) and in respect of specific advertisements on an ad hoc basis.
8. Council says that Save the Robots has not even demonstrated continuous use. There are significant gaps in the history presented to the Court. The roof of the building was damaged in a fire in 1923 and the billboard may have been removed at that time (Ex 9). Photographs from the 1920s are undated and may precede the fire.
9. Council argues that the proposed billboard constitutes more than rebuilding and intensification. Even assuming some existing use rights, these could theoretically be no more than the potential ability to continue to use the structure in its original configuration. The sign structure has been completely modified and replaced several times, the structure which exists today is not the same as the structure that existed in 1948.
10. The proposed billboard is an entirely new and different structure from the billboard that exists today. It is proposed to be more akin to a digital television than a billboard, and to be erected not on the existing roof but on the wall of a redeveloped building. Roof and sky signs are different to wall signs, as evidenced by the separate provisions for them in the Industry SEPP. The proposed billboard is beyond the scope of s 166 of the EPA Regulation.

Findings

1. I accept Council's arguments that the advertising use was not lawful immediately prior to the commencement of the prohibition on the display of advertising signage on 16 March 2001. Accordingly, I find that there are no existing use rights applicable to the existing billboard.
2. I accept Council's submission that the applicant has not discharged the onus of demonstrating that existing use rights arose in 1951 when CCPSO came into effect. There is no evidence of either a development consent for the advertising structure or a licence for the sign at this time. While some degree of presumption is appropriate for buildings of this age, the applicant relies too heavily on inferences and presumptions. In light of the contrary evidence raised by Council and the brevity of the historical record presented to the Court, the applicant has not discharged the onus of demonstrating continuous lawful use.
3. Even assuming that existing use rights did arise in 1951, the 1999 consent was clearly inconsistent with their continuation.
4. In MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 ('MM & SW Enterprises'), Pepper J described the relationship between existing uses and development consents under ss 106 and 107 of the EPA Act (the precursors to ss 4.65 and 4.66) as follows: "[81] In circumstances where premises are subject to a development consent, the terms of the consent become the "lawful purpose" from which an existing use can arise pursuant to s 106(b)(i) of the EPAA (Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 at [12]-[14] and House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [36]-[37]). [82] Only the "lawful purpose", that is, the terms and conditions stipulated in the development consent, can be relied upon by the applicant to secure existing use rights. Any other "use" - such as an unlawful use or an actual use that is different from the consenting use - is not a lawful use, and cannot be relied upon to gain existing use rights (Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177 at 190). [83] In order to determine what the lawful purpose is, the Court must look to the ambit of the language in the development consent to determine whether the use is lawful under planning law and therefore protected."
5. The 1999 consent was limited in duration and required the sign and associated structures to be removed upon its expiry. Accordingly, the lawful use provided for under that consent ceased on 10 February 2001.
6. I do not accept the applicant's submission that this consent had no effect on any existing use rights which may have existed prior to 1999. While the applicant submits that the lack of any express provision in the 1999 consent requiring surrender of existing use rights should be taken as recognition of their continuation, this lacuna could equally be read as confirmation that no such rights existed. Similarly, while resolution (B) notes the possibility of a future consent, it states clearly that this would not necessarily be approved. By taking up the consent, Claude Neon agreed to comply with its conditions.
7. In South Sydney City Council v Nettlefold Advertising Pty Ltd [1998] NSWLEC 202 ('Nettlefold'), Pearlman CJ considered facts similar to those in this case. An advertising sign had been in existence on the roof of another building on Oxford Street since 1935, but in 1981 development consent was granted for alterations with a duration of 5 years. Pearlman CJ rejected the claim that the 1981 consent was irrelevant because of existing use rights: "[T]he development consent lapsed in 1986, and the right to use the structure for the purpose specified in the development application ceased as a consequence. Accordingly, after 1986, the respondents were not authorised to use the advertising sign in its present configuration, although, by dint of existing use rights, they may have been able to continue to use the structure as a neon advertising sign in its previous configuration. The conclusion that I have reached is not disturbed by the passage I have quoted from the judgment of McHugh JA in Royal Agricultural Society v Sydney City Council, because what was involved here was not a natural change in the method of using the structure, but structural alteration of the structure. Nor do I agree that the structural changes which were made were merely changes brought about by improved technology in the display of advertisements on billboards. On the contrary, the structural alternations made the advertising sign different from what it had been" [18]-[19]."
8. I do not accept the applicant's submission that the short gap between 10 February and 15 March 2001 should be overlooked to support a finding of lawful use.
9. If I am wrong on existing use rights and the use of 191-195 Oxford Street for the display of advertising signage is not prohibited by the Industry SEPP, then the question turns to whether the proposed billboard involves rebuilding within the scope of s 166 of the EPA Regulation. If it does, then consent is required under SLEP and the Industry SEPP.
10. Evolution is permissible within existing uses. Save the Robots refer to Grace v Thomas Street Café Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359 ('Grace v Thomas St') as authority for this principle. In Grace v Thomas St, Beazley JA held at [89] that "the law recognises a natural evolution of use without losing the protection of existing use". However, in that case, the evolution from milk bar to café was not within the scope of the protection. The crucial issue was the difference in town planning considerations, with differing impacts including the pattern and movement of people, traffic and parking considerations: at [90]. Agreeing with Beazley JA, McClellan CJ reached a similar conclusion: a change in impacts is a significant indication of a change of use (at [140]-[147]).
11. The question of whether the proposal involves a "natural evolution" or a change in use is closely tied to the question of the merits of the proposed billboard. I consider both below, and return to the question of whether the proposed billboard is within the scope of s 166 of the EPA Regulation at [155].

Road safety

1. In addition to Sch 5, s 3.16(3)(b) of the Industry SEPP requires reference to the Guidelines in the assessment of advertising. Road safety is addressed in Chapter 3 of the Guidelines. Relevant provisions include: "3.2.2 Line of sight … d. The advertisement should not distract a driver's attention away from the road environment for an extended length of time. For example: i. The sign should not be located in such a way that the driver's head is required to turn away from the road and the components of the traffic stream in order to view its display and/ or message. All drivers should still be able to see the road when viewing the sign, as well as the main components of the traffic stream in peripheral view. … 3.2.3 Proximity to decision making points and conflict points … To minimise distraction near decision making points and conflict points, and ensure there is sufficient distance for a driver to recognise, react and, if required, stop safely before reaching one of these points, the following criteria apply to all advertising signage: a. The sign should not be located: i. less than the safe sight distance from an intersection, merge point, exit ramp, traffic control signal or sharp curves ii. less than the safe stopping sight distance from a marked foot crossing, pedestrian crossing, pedestrian refuge, cycle crossing, cycleway facility or hazard within the road environment iii. so that it is visible from the stem of a T-intersection. … 3.2.4 Sign spacing A highly cluttered visual field makes it difficult to locate and prioritise driving-critical information, e.g. regulatory and advisory signs and traffic control devices. The proposed site should be assessed to identify any road safety risk in relation to visual clutter and the proximity to other signs. Additional criteria for digital signs: a. Sign spacing should limit drivers view to a single sign at any given time with a distance of no less than 150m between signs in any one corridor. Exemptions for low speed, high pedestrian zones or CBD zones will be assessed by RMS as part of their concurrence role. … 3.3.1 Advertising signage and traffic control devices Signs that display information that is contrary to, or competing with, prescribed traffic control devices or make locating prescribed traffic control devices difficult, have the potential to distract and confuse motorists. Therefore, the following criteria apply to all advertising signage: a. The advertisement must not distract a driver from, obstruct or reduce the visibility and effectiveness of, directional signs, traffic signals, prescribed traffic control devices, regulatory signs or advisory signs or obscure information about the road alignment. … 3.3.2 Dwell time and transition time Signs which change advertising content are more likely to distract a driver than signs with content that is static. In locations where digital and moving signs are assessed to be appropriate, the minimum dwell time and maximum transition time set out in the criteria must be applied. Longer dwell times may be necessary in more complex locations."

The applicant's submissions

1. Save the Robots says that the requirements of section 3.3.1 of the Guidelines are met. The experts agree that the sign will not reduce the visibility or effectiveness of directional signs, traffic signals, prescribed traffic control devices, regulatory signs or information about the road alignment.
2. The sign is located at a distance less than the safe stopping distance from an intersection in section 3.2.3 of the Guidelines and the digitalisation of the sign has the potential to distract drivers contrary to section 3.3.2 of the guidelines. However, given the existence of the present sign, Save the Robots argues that the only real issue is digitalisation and principally the "dwell time" of the proposed sign. According to Save the Robots, both stopping distance and driver distraction concerns can be mitigated by an appropriate dwell time.
3. A dwell time of 45 seconds is proposed. This is longer than the minimum of 10 seconds set in the Guidelines for roads with a speed limit less than 80km/h, and longer than the 35 seconds recommended as sufficient by Mr Steal.
4. Council has installed several digital billboards attached to bus shelters in close proximity to the site. Save the Robots says that clutter is not an issue as the proposed sign does not increase the number of signs visible, and clutter can be resolved by appropriate dwell times.
5. The DA proposes a public benefit in the form of community advertising for 2 hours per day at staggered intervals, and increased to 5 hours per day at staggered intervals during the Sydney Gay and Lesbian Mardi Gras and Pride Month.

Transport's submissions

1. Transport argues that the proposed billboard will have unacceptable impacts on road safety on two classified roads, and that this is demonstrated by the expert evidence. In particular, Transport highlights the following:
2. The experts agree that there is an extensive literature on driver distraction. Mr Steal gave evidence that there are over 90 studies on the topic, but that he had read only one of those. Mr McTiernan relied on a number of peer reviewed studies, including studies more recent than the paper referred to by Mr Steal. Mr McTiernan's evidence should be accepted by the Court.
3. The experts agree that there is a strong correlation between distraction and signage. Mr McTiernan cited numerous studies showing a link between digital billboard advertising and driver distraction, increasing crash risk.
4. While Mr Steal assumes that drivers will only "glance" at the display, it is Mr McTiernan's opinion that the display will attract and hold drivers' attention and may require drivers to turn their heads. Mr McTiernan cited relevant literature and noted that this is potentially exacerbated because of the second rooftop billboard in close proximity to the site.
5. Both the National and NSW road safety strategies adopt vision zero, committing to zero deaths and serious injuries on roads as a central principle.
6. The site is within a black spot. Mr McTiernan gave evidence that the site is in the most dangerous 6% of all signalised intersections in NSW and is in the top 7% for intersections in the Council's local government area.
7. The experts have reviewed and relied on the Austroads Research Paper AP-R420-13 (Ex R2.1, tab 8): sheet 2 and [24]. Section 9.2 Sign Placement Guidance relevantly states: "All installations should consider the overall risk profile of the road environment in question and the driver demand of the road section (e.g. crash history, AusRAP ratings, traffic volume, speed, complexity, clutter). In particular: • Black spots and road sections with less than a 3-star rating (AusRAP or equivalent) should be ruled out for advertising device placement."
8. The experts agree that black spots are ruled out for digital advertising.

Findings

1. I accept Transport's submission that Mr McTiernan's evidence should be preferred over Mr Steal's because it is founded in a more comprehensive review of the literature.
2. I accept Mr McTiernan's evidence that digital billboards can increase driver distraction and reduce road safety.
3. I accept Mr McTiernan's evidence that this is a complex intersection and a black spot. This is consistent with the near miss observed during the site view. I accept that black spots are ruled out for digital advertising.
4. I do not accept Save the Robots' submission that the existence of the present billboard means that a merits review should compare what is proposed with what is being replaced. This was expressly rejected in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 ('Stromness'). Pain J stated at [87]-[88]: "[87]… There is no entitlement to a development consent for a rebuilding, only an entitlement to make a development application. No case to which I have been referred has said that in the assessment of a development application to rebuild or intensify an existing use it is a given that the new proposal must be assessed as against what it replaces to determine if it is satisfactory. … If a merit assessment under s 79C is applied to a new building which is a rebuilding for the purposes of continuing an existing use, it is possible that the existing use holder will not be allowed to build something identical to that which already exists if a merits assessment results in the conclusion that the impacts under s 79C are unacceptable. [88] That is not to say that consideration of the building intended to be replaced is irrelevant to the merit analysis under s 79C. It may well be appropriate depending on the circumstances that the building intending to be replaced is considered, and I consider it is appropriate in this case to do so. The merits assessment is not confined to that comparison only however, it is also necessary to consider the development application more broadly under s 79C..."
5. I do not accept Save the Robots' submission that the increased risk of driver distraction created by the proposed billboard can be mitigated by dwell time.
6. I am not able to reach the state of satisfaction required by ss 3.6, 3.11 and 3.15 of the Industry SEPP that the proposed billboard satisfies the assessment criteria in Sch 5. With respect to road safety, there is strong evidence that digital billboards increase driver distraction and that this can reduce safety, including for pedestrians and bicyclists.
7. I have considered the matters in s 3.16 and concluded that the proposed billboard is likely to reduce road safety, and is inconsistent with the Guidelines.
8. These conclusions are consistent with oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2015] NSWLEC 1269 ('oOH! Media Assets'), in which Brown ASC refused a development application for the replacement of a static billboard with a digital sign on the roof at 134 Oxford St, Darlinghurst, diagonally opposite the site. In that case the parties agreed that existing use rights applied to the existing billboard, so the questions before the Court centred on the impacts of the proposed billboard. Consistent with Stromness, Brown ASC held that the assessment must be made on the basis of the likely impacts of the new sign rather than a comparison with what was existing. In relation to road safety, Brown ASC held: "[163] Even If it is accepted that the academic literature does not provide comprehensive support for a link between electronic billboards and reduced road safety, care must be taken in ensuring that the erection of an electronic billboard is not located where it could exacerbate an already unacceptable traffic and safety situation. In this case, what cannot be disputed or overstated is that the subject intersection has a poor accident record. … [164] Rhetorically, it could be asked why an electronic billboard, that is designed to be noticed, has a prominent location at an intersection that has a poor accident history for vehicles and pedestrians and in an area that attracts large numbers of people is appropriately located in terms of road safety. Unlike many of the voluntary and involuntary distractions identified by Professor Washington, there is the opportunity to avoid a distraction that could be potentially unacceptably impact on road safety at the intersection. [165] In response to the question posed by cl 8 of SEPP 64, I am satisfied that that the proposed sign would "reduce the safety for any public road" and "would reduce the safety for pedestrians or bicyclists" given the potential for driver distraction when combined with the poor accident history of the intersection and, at times, the large number of people that can frequent the area near the location of the proposed sign."
9. I have concluded that consent cannot be granted for the proposed billboard under the Industry SEPP. In accordance with s 3.6, I am satisfied that the rest of the proposed signage (excluding the proposed billboard) is consistent with the objectives of Ch 3 and satisfies the assessment criteria specified in Sch 5.

Heritage impacts

1. SDCP section 2.4.10 provides a locality statement for Oxford Street, Darlinghurst. Relevant principles include: "(b) Development is to respond to and complement heritage items and contributory buildings within heritage conservation areas, including streetscapes and lanes. (c) Retain and enhance the existing heritage buildings along Oxford Street."
2. SDCP section 3.9 includes general heritage provisions, section 3.9.6 contains objectives and provisions for heritage conservation areas, including: "(1) Development within a heritage conservation area is to be compatible with the surrounding built form and urban pattern by addressing the heritage conservation area statement of significance and responding sympathetically to: … (b) views to and from the site; … (d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings; … (4) Development within a heritage conservation area is to be consistent with policy guidelines contained in the Heritage Inventory Assessment Report for the individual conservation area."
3. Section 3.9.7 contains objectives and provisions for contributory buildings, including: "(2) Alterations and additions must not significantly alter the appearance of principal and significant facades of a contributory building, except to remove detracting elements. (3) Alterations and additions to a contributory building are to: (a) respect significant original or characteristic built form; … (e) remove unsympathetic alterations and additions, including inappropriate building elements;"
4. Section 3.16 makes provision for signs and advertisements. Section 3.16.7.2 covers conversion of existing approved advertising to electronic variable advertising, providing the consent authority have regard to matters including: "(a) the compatibility of the electronic advertising structure with the site context based on zoning, surrounding land use, built form and the existing and desired character of the area; … (c) whether the structure maintains or enhances the significance of heritage conservation areas or heritage items; (d) whether the structure improves the appearance of the existing advertising structure it will replace; … (g) whether the signs and advertisements create a road safety risk or hazard or confuse, distract or compromise road user safety in any road environment; (h) the cumulative impact and visual clutter of signage in the locality, including its effect on the pedestrian experience of the public domain; (i) whether the structure reduces the quality of important views and the visual amenity of the skyline, streetscape and site where the advertising structure is located; (j) the extent of public benefit that will be provided in connection with the structure;"
5. Section 3.16.11 includes the following provisions: "(3) New signage is to be compatible with the heritage significance of the conservation area or the item, including the built form architectural style and existing signage. Signage is to be appropriately located to prevent significant components or distinguishing features of heritage buildings from being obscured. … (6) New signage located between the first floor level and parapet for any building is not permitted for heritage items or in heritage conservation areas. This may be varied where upper level signage is an important aspect of the heritage significance of the conservation area or item on which the sign is located. … (9) New internally illuminated signage is only permitted where: (a) it is a reconstruction of an original significant sign; (b) it can be demonstrated that internally illuminated signage is an important aspect of the heritage significance of the heritage conservation area or item; or (c) the illumination is low voltage and visible through cut out lettering in high quality metal consistent with the heritage significance. … (13) New advertising structures and third party advertisements are not permitted on heritage items or within heritage conservation areas. (14) The replacement, modification or conversion of an existing approved advertising structure with an electronic variable content advertising structure on a heritage item or in a heritage conservation area is only permitted where: (a) The requirements of Section 3.16.7 (Advertising structures and third party advertisements) are satisfied; and (b) The consent authority is satisfied that there will be no adverse impact on the heritage character or significance and the relationship and appearance between the building and advertising structure will be improved."
6. General provisions relating to signage are also contained in section 3.16.13, including: "(4) Signage that will detract from the amenity or visual quality of heritage items, heritage conservation areas, open space areas, waterways or residential areas is not permitted. (5) Signage should not create unacceptable visual clutter taking into account existing signs, neighbouring buildings, the streetscape and the cumulative effect of signs. (6) Signs should allow the main facades of buildings from the first floor to the rooftop or parapet to be uncluttered and generally free of signage."
7. Section 5.11.1 is the locality statement for the OSCCP. Section 5.11.3 provides for "Taylor Square and other places on Oxford Street", beginning with the following guidance: "Taylor Square is an important public place, and is historically, visually and physically connected to the Darlinghurst Courthouse and former Darlinghurst Police station across Oxford Street to the north. It is a complex public space extending from the courthouse buildings across Oxford Street, edged by heritage buildings on Flinders, Campbell, Bourke and Oxford Streets and the Rainbow Crossing. The angle at which Oxford Street bisects the grid creates a number of triangular or irregular shaped sites and public spaces at Oxford Square, Whitlam Square, Three Saints Square and Taylor Square. New buildings and additions to heritage buildings in these spaces must provide strong visual and physical edges to the public space through high-quality architecture and construction. Their architectural expression must complement the historical context and allow opportunities for contemporary design. Buildings must strongly define and enhance the quality of the space and provide opportunities for ground level activation."

The applicant's submissions

1. Save the Robots submits that the proposed billboard is consistent with cl 5.10 SLEP and with the controls for contributory buildings in SDCP. The sign is not proposed to be located on, to alter or to obscure a principal or significant façade. All significant fabric is to be retained and the detracting billboard is to be removed. Mr Oultram accepted in cross-examination that the proposed billboard is a major improvement from the existing billboard.
2. There is no reference to signage in the Statement of Significance for the Oxford Street HCA (Ex 3) or locality statement in SDCP. Since signage has long been part of the character of Oxford Street, Save the Robots says that it should be inferred that its presence is neutral.
3. Section 3.16 of SDCP contains provisions specifically directed to signage within heritage areas, including 3.16.7.2 and 3.16.11.14 which contemplate the conversion of existing advertising to electronic variable content. According to Save the Robots, the proposal is consistent with these provisions.

The respondent's submissions

1. Council submits that the heritage impacts of the proposed billboard are unacceptable in regard to the controls in SLEP, SDCP and the Industry SEPP.
2. The building at 191-195 Oxford Street is a contributory item, designed by one of the important architects identified in the Statement of Significance. The roof sign was not part of the original design.
3. The test, as explained by Pain J in Stromness, is not whether the proposed billboard improves upon the current billboard. The proposal is to be assessed on its merits. Mr Oultram's evidence is based on a flawed assessment of the proposed billboard against what is existing.
4. The experts agree that billboards are designed to stand out and draw attention to themselves. The proposed billboard will be very prominent.
5. Council argues that the proposed billboard does not respond to and complement heritage items and contributory buildings as required by section 2.4.10 SDCP, and it is not designed to respect the character of the area, particularly roofscapes, as required in section 3.9.6. Billboards are anomalous and intrusive in the area.
6. The proposed billboard is inconsistent with the controls for contributory buildings. It is contrary to the intent of section 3.9.7.2(e) to remove a detracting element only to replace it with another inappropriate building element. It does not respect the significant original built form as required in section 3.9.7(3)(b).
7. The proposed billboard is inconsistent with the heritage provisions of the Industry SEPP. It would detract from the amenity or visual quality of the heritage area.

Findings

1. I have considered the matters required under cl 5.10(4) of SLEP and have concluded that the heritage impacts of the proposed billboard are unacceptable.
2. I accept Council's submissions that the proposed billboard should be assessed on its merits. The experts agree that billboards are designed to stand out and draw attention to themselves, and that the proposed billboard will be very prominent. It will be a detracting element on top of an important contributory building at the conclusion of a significant vista. As Brown ASC concluded with respect to the digital billboard proposed across the road in oOh! Media Assets, the proposed billboard is inconsistent with the objectives of cl 5.10 SLEP and the required consideration in cl 5.10(4). The proposed billboard is also inconsistent with the provisions of SDCP, particularly sections 3.16.11 and 3.16.13.
3. I agree with the parties that the proposed development is otherwise consistent with cl 5.10 SLEP and with the heritage provisions of SDCP, and without the billboard would be acceptable. The Heritage Impact Statement finds that the proposal will not adversely impact the HCA and is outside the zone of influence of Busby's Bore (Ex B, tab 12).
4. I am not able to reach the state of satisfaction required by ss 3.6, 3.11 and 3.15 of the Industry SEPP that the proposed billboard satisfies the assessment criteria in Sch 5 and is acceptable in terms of design. The proposed billboard would detract from the amenity and visual quality of the heritage area.

Design excellence

1. Section 5.11.3 of SDCP includes the following provisions: "(1) Development is to reinforce the significant view corridor along Oxford Street and views to buildings framing Taylor Square and street intersections and define corner sites through appropriate massing and facade design. (2) Despite any other provision of the DCP, a reduced upper level setback, which may result in a nil upper level setback on heritage listed and contributory buildings facing Taylor Square, Oxford Square, Whitlam Square, and Three Saints Square may be considered where the Consent Authority is satisfied that the design outcome will be of the highest standard in the following areas: (a) the relationship between the architectural language of the existing building and the addition, which is to enhance and emphasise the qualities of both the existing and new parts of the building; and (b) the design and construction quality of the facades, including exposed side walls and expression of the roof."

The applicant's submissions

1. Save the Robots submits that the proposal exhibits design excellence.
2. The additions to the building at 191-195 Oxford Street have been designed, at least in part, to facilitate an advertising sign. Design excellence needs to be answered in respect of the proposal as a whole.
3. Signage has formed part of the essential fabric of the precinct for a long time. Mr Carter is of the opinion that the location is a "place of spectacle" comparable to places such as Shibuya, Tokyo and Times Square, New York.
4. Clause 6.21C(2)(b) of SLEP requires regard to whether the form and external appearance of the building will improve the quality and amenity of the public domain. This requires a comparison with existing development, and the experts agree that the proposed development improves on what is existing.
5. Clause 6.21C(2)(c) also requires consideration of whether the proposal "detrimentally impacts on view corridors". The heritage experts agree that integration of the sign into the façade will reduce the visual impact of the sign. The proposal will improve view corridors.

The respondent's submissions

1. The design experts agree that the building delivers design excellence without the billboard element and is supportable on that basis. The incorporation of the proposed billboard prevents the development achieving design excellence. There is significant overlap between design excellence and heritage, and many of the arguments outlined above apply also in respect to design excellence.
2. The photomontages provided by the applicant do not present the reality of billboard advertising, instead they show mute artworks. Council has prepared photomontages based on recent billboards displayed in the area. Figure 3. Photomontage prepared by Council (Planning and Urban Design JER, Ex 7, p 8).
3. Ms Pressick gave evidence that a digital sign would detract from the view corridor. Her opinion is that the proposal would not necessarily create vitality and is "certainly not the sense of place that the controls are trying to achieve".
4. Mr Carter accepted in evidence that the proposed billboard should be assessed as it will appear most of the time. However, in his evidence he focused on the display of public messages particularly during Mardi Gras. This is not the typical or ordinary use of the billboard. Mr Carter also focused on moving images, which are not proposed in the DA (which proposes a dwell time of 45 seconds).
5. The proposed development does not achieve design excellence when assessed against the mandatory considerations in s 6.21C(2), as follows: 1. A high standard of architectural design, materials and detailing appropriate to the building type and location will not be achieved by the incorporation of the billboard. 2. The proposed billboard means that the development will not improve the public domain, it will be a distracting and detracting element. 3. The view corridor from the Hyde Park end of Oxford Street up to Taylor Square will be detrimentally impacted by a prominent and large illuminated advertising billboard on a terminating vista. 4. The proposed development does not properly address the suitability of the land for the development. 5. The proposed development does not properly address any heritage issues and streetscape constraints. 6. The proposed development does not properly address the impact on, and any proposed improvements to, the public domain. The proposed development detracts from the improvements currently being undertaken to Council owned buildings on the northern side of Oxford Street. 7. The proposed development does not properly address the impact on the Oxford Street HCA.
6. The proposed development incorporating the billboard element would be inconsistent with the specific provisions of SDCP. The architectural expression would not complement the historical context nor strongly define and enhance the quality of the space. The proposal relies on section 5.11.3(2) of SDCP for reduced setbacks, but does not satisfy the requirements for its application. The proposal is inconsistent with the signage provisions of SDCP.
7. The billboard is not integral to the development. Ms Pressick is of the opinion that the development could be approved subject to conditions requiring removal of the billboard and appropriate treatment of the façade.

Findings

1. I have considered the requirements of cl 6.21C and accept Council's submissions that the proposed billboard prevents the development from achieving design excellence. I find that the proposed billboard would have a detrimental impact on the public domain and a significant view corridor. The proposed billboard would detract from the improvements on the northern side of Oxford Street, and with the desired future character of the area as expressed in SLEP and SDCP. There are significant differences between Taylor Square, Shibuya and Times Square, and this is reflected in the planning controls.
2. It is my finding that the proposed billboard is not integral to the development and should be removed. Without this detracting element, I accept the expert evidence and am satisfied that the proposal does achieve design excellence for the following reasons: 1. The proposal achieves a high standard of contemporary architectural design, including materials and detailing that are sympathetic to the retained façades while reading as noticeably contemporary. 2. The proposal is consistent with the OSCCP massing models and vision. 3. No established or significant view corridors will be adversely impacted by the proposal. 4. The land and locality are highly suitable for the proposed development. 5. The form, massing and height are commensurate with the prominence of Taylor Square. 6. The proposed development has been skilfully designed to avoid overshadowing and impacts on solar access to nearby residential properties. 7. The proposal is consistent with the principles of ecologically sustainable development.

Intensification

1. As outlined above, the road safety, heritage and design excellence-related impacts of the proposed billboard are significant. Consistent with authority in Grace v Thomas Street, the magnitude of those impacts points toward a change of use and not a mere "natural evolution". I note also that the proposed billboard is a wall sign, subject to differing provisions than those regulating roof signage, and involves technology very different to the existing static billboard. I find that the proposed billboard is beyond the scope of rebuilding permissible under s 166 of the EPA Regulation.

Contravention of development standard

1. The proposed development breaches the FSR development standard in cl 4.4 of SLEP. The site is subject to a maximum FSR of 3:1 under cl 4.4. Alternative FSR allocations are permissible under cl 6.60D(3)(a), of 4:1 at 191-195 Oxford Street and 3.75:1 at 197-199 and 201 Oxford Street. The DA proposes an FSR of 3.33:1 at 197-199 and 201, which falls within the alternative FSR.
2. The DA proposes an FSR of 4.99:1 at 191-195, which exceeds the alternative FSR. Clause 4.6(8) prevents cl 6.60D from being varied under cl 4.6, so variation sought is to the standard FSR of 3:1. The proposed development at 191-195 Oxford Street contains a total gross floor area (GFA) of 1,003.22m2, equating to an FSR of 4.99:1 which exceeds the base FSR control by 1.99:1.
3. Save the Robots has submitted a written request under cl 4.6(3) of SLEP seeking to justify the contravention of the development standard. The request was prepared by Urbis and dated 21 August 2024 (Ex F, tab 1) (the request). The request explains that the FSR variation results from design amendments made during the joint conferencing process, through which a combination of fixed and operable glazing is proposed for the rooftop terrace. This increases the GFA by 182.12m2, taking the FSR from 3.99:1 to 4.99:1. The ability to enclose the terrace will enhance vitality and viability.
4. The request seeks to justify the contravention of the FSR development standard by demonstrating that compliance is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard.
5. As to the first matter, the request contends that compliance with the height development standard is unreasonable or unnecessary because the objectives are achieved notwithstanding the noncompliance. The objectives of the FSR development standard are set out in cl 4.4(1) as follows: (a) to provide sufficient floor space to meet anticipated development needs for the foreseeable future, (b) to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic, (c) to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure, (d) to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.
6. With regard to the first objective, I accept the argument in the request that the proposal provides floor space for cultural and creative uses and employment-generating activities in a location where there is strong demand. The applicant, through ongoing engagement with Council, has modelled alternative schemes with compliant FSR allocations. This affirmed that the proposal is the most effective distribution of floor space and will positively contribute to the vitality of the site and OSCCP.
7. On (b), I accept the request's argument that this objective is achieved because the proposal is only a minor increase above the FSR envisaged for the site under cl 6.60D. The DA does not propose vehicular access or parking, and relies from the excellent public transport available to the site.
8. With respect to (c), I accept the request's argument that the development can be adequately serviced by utilities and existing and planned infrastructure.
9. With respect to objective (d), I accept the argument in the request that the DA results in an intensity of development that is both compatible and necessary to achieve the desired future character of the area, as envisioned by SLEP and SDCP. The allocation of floor space across the three properties optimises activation and use on the corner site to maximise the corner building's impact, creating a strong visual and activated edge to Taylor Square. Figure 4. Nil setback to Taylor Square providing strong visual and physical edges to the public space. (Ex F, tab 1, p 17)
10. As to the second matter required to be demonstrated, the request contends that there are sufficient environment planning grounds to justify contravening the development standard. These include: 1. The ability to enclose the rooftop terrace optimises the potential use, patronage, viability and vitality of the development and precinct, while reducing impacts on surrounding residential and other development. 2. The proposal is consistent with the proposed built form massing for the site under SLEP and SDCP. It aligns with the existing and desired future character of the site, maximising the impact of the corner building to provide a visually striking and vibrant edge to Taylor Square. 3. The proposal will not create any additional overshadowing impact and will provide a public benefit in cultural and creative GFA beyond the minimum required for the site.
11. The Council was satisfied that the request adequately addressed the matters required to be demonstrated by cl 4.6(3). I am satisfied under cl 4.6(4) that Save the Robots' written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives for development within the E1 Zone.
12. The objectives of the E1 zone are as follows: • 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.
13. In accordance with objectives (1), (2) and (4), the proposal will provide a late-night trading use that will meet the anticipated needs of people who live in, work in, or visit the area. While the proposal does not contain a conventional residential component, the ability to enclose the rooftop terrace reduces impacts on surrounding residential development. The proposal is consistent with (5) in its provision of on-site bicycle parking and reliance on public transport. No vehicular access or car parking is provided.

Jurisdictional preconditions to the grant of consent

1. Before turning to the merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the determination of the development application by the grant of consent have been met. The parties agree that these other jurisdictional preconditions are satisfied and provided a written statement addressing these. The Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Chapter 2 applies because the site is identified as being within the "Coastal Environment Area" and "Coastal use area". Sections 2.10 and 2.11 do not apply as the site is identified as being within the Foreshore and Waterways Area under Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021. No certified coastal management program applies to the site (s 2.13).
2. Section 2.12 provides that a consent authority must not grant development consent unless it is satisfied that the proposed development is not likely to cause increased risk of coastal hazard. The Preliminary Geotechnical Investigation prepared by JK Geotechnics dated 21 July 2021 (Class 1 Application Tab 14), concludes that no geotechnical hazards will be created by the proposed development. I have considered the relevant matters and am satisfied that the requirements of Ch 2 are met.
3. Section 4.6 provides that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land and, if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
4. The site has historically been used for mixed-use purposes. The Preliminary Site Investigation (PSI) (Tab 13 of the Class 1 Application) identified potential sources of contamination that would not preclude the development from being undertaken. Vapour testing was also undertaken and Interim Audit Advice prepared by Ramboll dated 16 September 2024 confirmed that the risk of contamination was low (Tab 21 of Exhibit D) The parties have agreed to a condition that requires that the site be remediated and validated in accordance with the Remedial Action Plan (project no 620.031951.00001, Revision V1.0) prepared by SLR Consulting Australia and dated 9 September 2024 and the Interim Audit Advice prepared by NSW Environment Protection Authority accredited Site Auditor Tom Onus dated 16 September 2024. I have considered the relevant matters and am satisfied that the land can be made suitable for the proposed use in accordance with s 4.6.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. Chapter 6 applies because the site is within the designated hydrological catchment of Sydney Harbour. As the site is not located in the Foreshores or Waterways Area, only the control relating to the improvement of water quality and quantity applies.
2. A stormwater management plan has been prepared by ENTEC Consultants dated 3 May 2024 (Tab 27 of Ex D). I have considered the matters in s 6.6(1) and am satisfied that the effect of the proposal on the quality of water entering a natural waterbody is as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody is minimised.
3. I have considered the matters in s 6.7(1) and am satisfied that the development will not have an impact on terrestrial, aquatic or migratory animals, vegetation or aquatic reserves, and minimises erosion, sedimentation and impacts on wetlands.
4. The site is not located in flood liable land and is not the vicinity of any wetlands or other riverine ecosystems. I have considered the matters in s 6.8(1) and am satisfied that the development will not result in the release of pollutants that may have an adverse impact on the water quality of a natural waterbody if there is a flood, and will not have an adverse impact on the natural recession of floodwaters into wetlands and riverine ecosystems, and therefore will not have an impact on those areas. The proposed stormwater system will reduce overland flow during storm events.
5. I have considered the matters in s 6.9(1) and am satisfied that the development will not have an impact on recreational land uses or access to public land.
6. I am satisfied that the proposal is not likely to have an adverse environmental impact on any adjacent or downstream local government area (s 6.10).
7. The requirements of Ch 6 are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. I am satisfied that the proposed development, excluding the billboard, will not have an adverse impact on the safety, efficiency and ongoing operation of Oxford Street or Flinders Street and is appropriately designed to ameliorate potential traffic noise or vehicle emissions within the site (s 2.119). Servicing and waste collection will take place via the existing loading zones on Oxford Street.
2. Section 2.122 does not apply because the proposed development is not traffic generating development (Tabs 21 and 22 of Class 1 Application).

Sydney Local Environmental Plan 2012

1. The site is identified in the Rushcutters Bay flood catchment area and as such is subject to the Rushcutters Bay Flood Study and Floodplain Risk. A Flood Risk Management Plan Report has been prepared which addresses flood risk management and confirms that the proposal will not adversely impact the flood function of the site or surrounds (Tab 10 of Ex D). I have considered the matters in cl 5.21(3) and am satisfied regarding the matters in cl 5.21(2).
2. As noted above at [155], the proposal relies on the alternative FSR permitted under cl 6.60D(3) for the development at 197-201 Oxford Street. Subclause (3) is available only if subcl (4) is satisfied, which requires provision of at least 10% of GFA for cultural or creative uses. The DA provides 15.4% of the total GFA as gallery space and therefore meets this requirement.
3. The proposal promotes land uses which attract pedestrian traffic by retaining the existing ground floor restaurant and introducing a new boutique hotel and art gallery. The requirements of cl 6.60D(5) are met.
4. The site is identified as 'class 5' on the Acid Sulfate Soils Map. An acid sulfate soils management plan is not required as the proposed works do not fall into the description specified in cl 7.14(2).
5. I am satisfied that the land will be comprehensively redeveloped and that the demolition works will not result in any adverse visual impacts (cl 7.19). The proposed development will retain the facades of the existing buildings and the proposed additions achieve design excellence.

Conclusion

1. For the reasons outlined above, I have concluded that the appeal should be determined by the grant of consent, excluding the billboard.
2. The parties have provided conditions that are generally agreed. Save the Robots objects to condition 7 in relation to building height. I accept Council's submission that this is a standard condition imposed to ensure that the height of the building ultimately complies with the architectural plans. I also accept Council's submission that this condition is necessary in this instance because the building sits at the maximum height control.

Orders

1. The Court orders: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The written request seeking to justify the contravention of the floor space ratio development standard at cl 4.4 of Sydney Local Environmental Plan 2014, prepared by Urbis and dated 21 August 2024, is upheld. 3. The appeal is upheld. 4. Development consent is granted to Development Application No D/2022/327 for café, restaurant, art gallery, hotel accommodation and rooftop bar uses at 191-195, 197-199 and 201 Oxford Street, Darlinghurst, subject to the conditions of consent in Annexure A. 5. The following exhibits are returned: L, M, N, 5, R2-4.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2025