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

Hearing dates: 24-25 November 2025

Date of orders: 19 December 2025

Decision date: 19 December 2025

Jurisdiction: Class 1

Before: Preston CJ

Decision: The Court orders:
(1) The appeal is dismissed.
(2) The appellant is to pay the respondent’s costs of the appeal.

Catchwords: APPEAL – appeal on questions of law – Commissioner’s decision not to grant development consent to a digital advertising sign – advertising prohibited – whether existing use for the purpose of advertising – Commissioner found no existing use – whether Commissioner misconstrued definition of existing use – whether facts found by the Commissioner necessarily fell within the definition of existing use – alternative development of rebuilding of static not digital advertising sign – whether alternative development a principal contested issue – whether Commissioner failed to determine a principal contested issue

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.12, 4.15, 4.16, 4.17, 4.65, 4.66, 4.67, 4.68, 8.7, 8.14
Environmental Planning and Assessment Regulation 2021 (NSW) s 37, Part 7
Land and Environment Court Act 1979 (NSW), s 56A
Local Government Act 1919 (NSW), ss 304, 311, 312, 313, 314, 342T, 342U, 342AB, 513, Part XI, Part XIIA
Local Government (Town and Country Planning) Amendment Act 1945 (NSW)
City of Sydney Planning Scheme Ordinance, cl 15
County of Cumberland Planning Scheme Ordinance, cll 3, 26, 32
Ordinance No 55, Regulation of Advertisements and Structures for the Display of Advertisements, cll 3, 4 and 5
Ordinance No 105, Town and Country Planning – General Interim Development Ordinance, cl 6(1)
South Sydney Local Environmental Plan 1998, cl 13
South Sydney Local Environmental Plan No. 101
State Environmental Planning Policy (Industry and Employment) 2021, ss 3.2, 3.8
State Environmental Planning Policy No 64 – Advertising and Signage, cl 10
Sydney Local Environmental Plan 2012, sch 5

Cases Cited: APN Outdoor (Trading) Pty Ltd v Melbourne City Council (2012) 187 LGERA 231; [2012] VSC 8.
Australian Gas Ltd Co v Valuer General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337
Grozier v Tate (1946) 64 WN (NSW) 1
Hope v Bathurst City Council (1980) 144 CLR 1
Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 208 LGERA 54; [2015] NSWCA 147
Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28
MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8
New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
Parramatta City Council v Australian Posters Pty Ltd (1986) 58 LGRA 213
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330
South Sydney City Council v Nettlefold Advertising Pty Ltd [1998] NSWLEC 202
Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562
The Corporation of the City of Kensington and Norwood v Claude Neon Limited (1979) 22 SASR 91
Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614

Category: Principal judgment

Parties: Save the Robots Pty Ltd ATF Save the Robots Trust (Appellant)
The Council of the City of Sydney (Respondent)

Representation: Counsel:
A Pickles SC and C Collett (Appellant)
A Shearer SC and H Ryan (Respondent)
Solicitors:
Mills Oakley (Appellant)
Mardi Flick (Respondent)

File Number(s): 2025/98934

Publication restriction: NIL

JUDGMENT

Nature of appeal and outcome

1. The appellant, Save the Robots Pty Ltd ATF Save the Robots Trust (Save the Robots), appeals against the decision of Acting Commissioner Thorpe (Commissioner) not to grant development consent to the rebuilding of an existing advertising sign as a digital advertising sign on a prominent building at Taylor Square, Darlinghurst. The appeal, under s 56A(1) of the Land and Environment Cou**rt Act 1979 (NSW), is limited to an error on a question of law. This limitation is important in this case as it limits the subject matter of the appeal to whether the Commissioner erred on a question of law in making necessary findings of fact, not whether the Commissioner erred on a question of fact in making those findings.

2. Save the Robots had sought development consent for three developments: first, alterations and additions to the existing building at 191-195 Oxford Street, Darlinghurst; second, the construction of a new mixed-use development at 197-199 and 201 Oxford Street; and third, the rebuilding of an existing static advertising sign to be a new digital advertising sign on the rebuilt building at 191-195 Oxford Street (the site).

3. The site is zoned E1 Local Centre under the Sydney Local Environmental Plan 2012 (SLEP), in which zone the first two forms of development are permissible with consent. The third form of development, involving the digital advertising sign, is regulated by State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP). Section 3.8(1) of the Industry SEPP prohibits the display of an advertisement on land within a heritage area, amongst other described zones and areas. The site is within a heritage area as it is within the Oxford Street heritage conservation area shown on the Heritage Map and described in Part 2 of Schedule 5 to SLEP.

4. Accordingly, whilst Save the Robots could apply under s 4.12(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for consent to carry out the first two forms of development as they are permissible with consent under s 4.2(1) of the EPA Act, it could not apply for consent to carry out the third form of development involving the display of an advertisement, as that development is prohibited under the Industry SEPP and s 4.3(a) of the EPA Act.

5. To overcome this prohibition, Save the Robots needed to establish that the use of the existing building on the site for the purpose of advertising is an existing use as defined in s 4.65 of the EPA Act. If so, s 4.66(1) of the EPA Act would then operate to allow the continuance of the existing use, notwithstanding that the Industry SEPP prohibits the use. Continuance of the existing use does not, however, authorise any alteration or extension to or rebuilding of the building being used for the existing use. If Save the Robots wishes to alter, extend or rebuild the building being used for the existing use, Save the Robots needed to apply for development consent to carry out the alteration or extension to or rebuilding of the building being used for the existing use. Part 7 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), made pursuant to s 4.67(1) of the EPA Act, entitles an applicant to apply for, and the consent authority to grant, development consent to alter, extend or rebuild a building being used for an existing use, so as to enable the continuance of the use of the altered, extended or rebuilt building.

6. Accordingly, Save the Robots applied under the EPA Regulation, in the same development application that sought development consent for the first two forms of development, for development consent for the rebuilding of that part of the building being used for what it asserted was an existing use for the purpose of advertising, so as to replace the existing static advertising sign with a new digital advertising sign.

7. The Commissioner, exercising the power under s 4.16(4)(b) of the EPA Act, granted development consent to the development sought in the development application, except for the development of the rebuilding of that part of the building to replace the existing static advertising sign with a digital advertising sign. The Commissioner decided not to grant development consent to the development involving the digital advertising sign for two sets of reasons.

8. The first was that the Commissioner found that Save the Robots had not established that the use of the building for the purpose of advertising was an existing use within the meaning of that term in s 4.65 of the EPA Act: [84]. On that basis, the Court lacked power to grant development consent to the third form of development involving the digital advertising sign, as it was prohibited by s 3.8(1) of the Industry SEPP.

9. The second set of reasons concerned the planning merits of the development of the digital advertising sign. The Commissioner, on the assumption that she was wrong on her finding that the current use of the building for the purpose of advertising was not an existing use, evaluated the acceptability of the development’s impacts on road safety, heritage, design excellence, amongst other impacts. The Commissioner found that the impacts of the development were unacceptable: at [114]-[115], [117] (road safety), [135], [136], [138] (heritage), [152], [153] (design excellence).

10. Save the Robots appeals against the Commissioner’s decision and order on two grounds. The first concerns the Commissioner’s finding that there was not an existing use as asserted by Save the Robots (the existing use ground). The second concerns the Commissioner’s failure to decide what Save the Robots claimed was a principal contested issue of whether development consent should be granted to an alternative development of a static advertising sign instead of the digital advertising sign that was the subject of the development application (the alternative sign ground).

11. Save the Robots accepted that it needed to succeed on both grounds for the appeal to be upheld. The Commissioner found that Save the Robots had not established that there was an existing use of the building for the purpose of advertising, which was necessary in order to grant consent to the proposed rebuilding of the advertising sign and structure. The Commissioner went on, however, to determine the development application on the assumption that there was an existing use. The Commissioner found, for a variety of merit reasons, that the proposed building of the advertising sign and structure was unacceptable and that development consent should be refused. Save the Robots accepted that in these circumstances any error in deciding the existing use issue was not material to the decision to refuse consent to the proposed rebuilding of the advertising sign and structure. Nevertheless, Save the Robots needs to establish that the Commissioner erred on the existing use ground to succeed on the alternative sign ground, as the permissibility of the alternative advertising sign depends on the use of the existing advertising sign and structure being an existing use.

12. I have determined that Save the Robots has not established either ground of appeal. The appeal should be dismissed with costs.

The existing use ground

13. Ground 1 in the Amended Summons filed on 17 June 2025 is that:

“The Acting Commissioner erred on a question of law in finding that there was not an existing use of the building on the land for the purpose of advertising within the meaning of para (a) of the definition of ‘existing use’ in s 4.65 of the Environmental Planning and Assessment Act 1979.”

14. Although seven particulars to ground 1 were provided in the Amended Summons, only the first four particulars were pressed at the hearing of the appeal. These are:

“a) The question of whether facts found fall within the provisions of a statutory enactment -when that provision does not use words of common understanding-property construed is a question of law.

b) The facts found, that use for the purpose of advertising had commenced on the building since the 1920 (at [48]), and had been carried out in various forms since that time (at [49]), was sufficient to satisfy the requirements of para (a) of the definition of existing use, when properly construed. The Acting Commissioner made a contrary decision that there was no existing use of the land or building.

c) The error in the understanding of the correct construction of the definition is manifest in the findings of the Acting Commissioner in which the requirements of the different paragraphs of the definition were conflated (at [85], [86]).

d) Further, or alternatively, the Acting Commissioner misconstrued the phrase ‘for a lawful purpose immediately before the coming into force of the environmental planning instrument which could, but for this division, have the effect of prohibiting that use’, in para (a) of the definition of existing use, which produced the finding (at [85]) that there was no evidence of a development consent for the advertising structure or a licence for the sign at the time in 1951 when the County of Cumberland Planning Scheme Ordinance (CCPSO) came into effect. There was no legal requirement for a development consent or licence to use the building for advertisement, at the coming into force of the CCPSO, because, as found, that use had commenced prior to the introduction of the CCPSO.”

15. These four particulars seek to articulate three errors on a question of law:

(a) the facts as found by the Commissioner necessarily fell within paragraph (a) of the definition of existing use in s 4.65 of the EPA Act, but the Commissioner made a contrary decision (particulars (a) and (b)); (b) the Commissioner misconstrued the definition of existing use in s 4.65 of the EPA Act by conflating the different requirements of paragraphs (a) and (b) of the definition of existing use (particular (c)); and (c) the Commissioner misconstrued or misapplied the requirement in paragraph (a) of the definition of existing use that there be a continuance of use “for a lawful purpose” by finding that there was no evidence of a development consent for the erection of the advertising structure or a licence for the display of an advertisement at the time of coming into force of the County of Cumberland Planning Scheme Ordinance (CCPSO), when there was no legal requirement for a development consent or licence to use the building for the purpose of advertising if there was an existing use (particular (d)).

16. These asserted errors on a question of law do not, and could not having regard to the nature of a s 56A appeal being limited to an error on a question of law, challenge the factual findings of the Commissioner that grounded her conclusion that the current use of the building for the purpose of advertising is not an existing use. Hence, although the Court was assisted by an explanation of the facts that are claimed by Save the Robots to found an existing use, it is not necessary to revisit the Commissioner’s factual findings in respect of existing use, except for the purpose of deciding whether those impugned factual findings were affected by an error on a question of law in one of the ways pleaded in ground 1.

Argument that facts necessarily fell within existing use definition

17. The first error on a question of law raised by ground 1 is that the facts concerning the use of the building for the purpose of advertising necessarily fell within paragraph (a) of the definition of existing use, but the Commissioner made a contrary decision. The question of whether facts fall within or without a statutory description, such as the definition of an existing use in s 4.65 of the EPA Act, can involve a question of fact or a question of law. The question of whether facts found by a tribunal of fact, such as a Commissioner deciding an appeal under s 8.7(1) of the EPA Act, could reasonably be found to fall within or without a statutory description is one of law. If the facts could reasonably be found to fall within or without the statutory description, the question whether they do fall within or without that description is one of fact: New South Wales Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-512; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333.

18. The first question of law has been expressed as being that if the primary facts found are necessarily within or without a statutory description, a contrary decision is wrong in law: Australian Gas Ltd Co v Valuer General (1940) 40 SR (NSW) 126 at 138; 14 LGR 149 at 155; Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. The second question of fact is not reviewable on an appeal limited to error on a question of law. As Jordan CJ said in Australian Gas Ltd Co v Valuer General at 138:

“If however the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior court which can determine only questions of law”.

19. This distinction between a question of law and a question of fact led to Save the Robots framing particular (b) to ground 1 in the manner it did. Save the Robots contends that the facts found by the Commissioner in [48] and [49] of the judgment necessarily fell within the statutory description of paragraph (a) of the definition of existing use in s 4.65 of the EPA Act. This provision defines an “existing use” to mean:

“(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.”

20. Application of this definition of existing use requires making findings in relation to each of the three elements of the definition in the circumstances of the case.

21. The first element requires identification of what is the current use of a building, work or land that is said to be an existing use: Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337 at [41]. In this case, Save the Robots asserts that the current use is a use of a structure on the roof of the building for the purpose of advertising. The identification of what is the current use of the building is a finding of fact that the Commissioner was tasked with making on the evidence before the Court.

22. The second element requires finding whether the building was used for that purpose at a particular time, being “immediately before the coming into force of an environmental planning which would… have the effect of prohibiting that use”. The current environmental planning instrument having the effect of prohibiting that use is the Industry SEPP. As earlier noted, s 3.8(1) of the Industry SEPP prohibits the display of an advertisement. An “advertisement” is defined in s 3.2 to mean “signage to which Part 3.3 applies and includes any advertising structure for the advertisement”. “Display” of an advertisement is defined in s 3.2 to mean “the erection of a structure for the purposes of display and the use of land, or a building on land, for the purposes of display”. Hence, the display of an advertisement includes the erection of a structure for the display of an advertisement. The finding of whether the building was used for that purpose at that particular time is one of fact, to be made on the evidence before the Court.

23. The third element requires finding whether that particular use at that particular time was for “a lawful purpose”. This involves tracing the history of the use back in time to establish that when the use commenced it was for a lawful purpose and that the use continued to be for a lawful purpose up to the point in time immediately before the coming into force of the Industry SEPP that has the effect of prohibiting the use: Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 at 567, 569, 578-579. The finding that the particular purpose of the use at each of the relevant times was a lawful purpose is also a finding of fact: Calleja v Botany Bay City Council at [42].

24. Finding that the use of a building is for a lawful purpose involves establishing not only that the use of the building for the purpose itself was lawful but also that the building which is used for the purpose was erected lawfully. This is because the statutory provisions concerning existing use in Division 4.11 of the EPA Act, including the definition of existing use in s 4.65, are “designed to save rights, not to perpetuate wrongdoing… the Legislature will be presumed, in the absence of some indication to the contrary, not to have intended that wrong-doers should benefit by their wrongdoing.”: Grozier v Tate (1946) 64 WN (NSW) 1 at 3. The existing use provisions do not protect a use of a building that is unlawful because it is a use of an unlawfully erected building: Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614 at 620, 628, 630.

25. In this case, the process of tracing back in time the lawfulness of the use of the building for the purpose of advertising starts with the date on which the Industry SEPP came into force on 1 March 2022. The building must have been used for the purpose of advertising immediately before the coming into force of the Industry SEPP and that use had to be for a lawful purpose at that date.

26. To be a use for a lawful purpose at that date, the building must have been used for the purpose of advertising before the predecessor environmental planning instrument of State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64) came into force on 16 March 2001 and that use must have continued up to 1 March 2022. This is because cl 10 of SEPP 64 also prohibited the display of an advertisement on land within a heritage area, which included a heritage conservation area. At the time SEPP 64 came into force, the site was within what was then the Paddington Urban Conservation Area, a heritage conservation area under South Sydney Local Environmental Plan 1998 (SSLEP 1998). Hence, the use of the building for the purpose of advertising needed to have been for a lawful purpose before 16 March 2001 when SEPP 64 came into effect prohibiting the display of an advertisement.

27. Whilst the Industry SEPP and SEPP 64 prohibited the display of an advertisement on the site, other environmental planning instruments permitted that use, but only with development consent. The prohibition of the use in s 3.8(1) of the Industry SEPP prevailed over the permissibility with consent of that use under SLEP, just as the prohibition of the use in cl 10 of SEPP 64 prevailed over the permissibility with consent of that use under SSLEP 1998.

28. Before the coming into force of SEPP 64, however, development for the purpose of advertising structures was permissible with consent in the applicable Business Zone under cl 13 of SSLEP 1998. SSLEP 1998 came into force on 24 April 1998. It repealed and replaced South Sydney Local Environmental Plan No. 101 (SSLEP 1989), which came into force on 23 June 1989. Under SSLEP 1989, the site was zoned 3(a) (Business General), in which zone development for the purpose of advertising structures was also permissible with consent under the land use table.

29. SSLEP 1989 repealed and replaced the City of Sydney Planning Scheme Ordinance (CSPSO), which came into force on 16 July 1971. Under the EPA Act, which came into force on 1 September 1980, CSPSO became a deemed environmental planning instrument: see the definition of “environmental planning instrument” and “deemed environmental planning instrument” in the then s 4(1) of the EPA Act. Under CSPSO, the site was reserved as a County Road Reservation, to which Division 4 applied. Clause 15(2) and (3) provided:

“(2) Land shall not be used without the consent of the responsible authority for any purpose other than the purpose for which the land was used immediately before the appointed day.

(3) The erection of a building shall not be undertaken without consent of the responsible authority.”

30. CSPSO saved, however, an existing use. Clause 26 provided:

“(1) Notwithstanding the provisions of Part III but subject to the provisions of Part II of this Ordinance, an existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not be erected or used or for which land may not be used under Part III of this Ordinance in respect of the zone in which such existing building or existing work or such land is situated.

(2) Where, in accordance with subclause (1) of this clause, an existing building or an existing work may be maintained and used for its existing use or an existing use of land may be continued, and such use is permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent and any conditions attached thereto may be enforced as if it were a consent granted under this Ordinance or such conditions were attached to a consent so granted.”

31. CSPSO replaced the County of Cumberland Planning Scheme Ordinance (CCPSO), which came into effect on 27 June 1951. Under CCPSO, the site was zoned Business and Commercial Centre (County), in which zone the erection and use of a building for the purpose of advertising was an innominate use permissible with consent: cl 26. CCPSO allowed, however, the maintenance of an existing use. Clause 32 of CCPSO provided: “An existing building or existing work may be maintained and may be used for its existing use and an existing use of land may be continued.” An “existing use” was defined in cl 3 as “a use of a building, work or land for the purpose for which it was used immediately before the appointed day.”

32. Before CCPSO came into force, development of the site was regulated by the interim development provisions of Part XIIA of the Local Government Act 1919 (NSW) (LG Act). Part XIIA was inserted into the LG Act by the Local Government (Town and Country Planning) Amendment Act 1945 (NSW) on 5 April 1945.

33. Division 7 of Pt XIIA of the LG Act, comprising ss 342S to 342Z, provided for “interim development”. “Interim development” was originally defined in s 342T(1) to mean:

“development of land to which a scheme applies between the date on which a resolution of the council or two or more councils acting together to prepare a planning scheme has taken effect or the date upon which notice of the fact that the Minister directed the council or two or more councils to act together to prepare a scheme was published in the Gazette, and the date of the coming into operation of the scheme.”

34. Section 342AA(2) of the LG Act provided that, for the purposes of Div 7 of Pt XIIA, the date on which the Minister directed the council or councils to prepare a scheme was to be construed as a reference to the date upon which notification of the first election of delegates to the Cumberland County Council was published in the Gazette: see also the definition of “Material Date” in s 342AC. That date was 12 July 1946: see NSW Government Gazette No 75 of 12 July 1946.

35. Accordingly, the interim development provisions of Div 7 of Pt XIIA applied to the site for the period whilst the Cumberland County Council was preparing its scheme and up to the date when that scheme could be prescribed. Interim development could not be carried out except in accordance with Div 7 of Pt XIIA, and especially s 342U. Section 342U(1) of the LG Act provided:

“(1) Interim development shall not be carried out—

(a) except as may be permitted by ordinance; or

(b) except as may be permitted by the council under the authority of an ordinance and subject to such conditions, restrictions and provisions as may be contained in such ordinance.”

36. As noted, “interim development” was development of land in this interim period. “Development” in relation to land was defined in s 342T(1) to include:

“the erection of any building, and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used.”

37. The Ordinance that permitted interim development with consent was the Town and Country Planning (General Interim Development) Ordinance, known as Ordinance 105, which commenced on 9 November 1945. Part II of Ordinance 105 specified the development permitted by the Ordinance, none of which was relevant to this site. Part III of Ordinance 105 specified the development that may be permitted by the interim development authority. Clause 6(1) provided: “Development which is not permitted by this Ordinance shall not be carried out except with the permission of the interim development Authority.”

38. As a consequence, during the interim development period from 9 November 1945 up to 27 June 1951 when CCPSO came into force, development consent was required for the erection of a building (which included a structure such as an advertising structure: see cl 11) and for the use of a building for a purpose different from the purpose for which the building was last used, but development consent was not required for the continuance of a use for the purpose for which the building was last used.

39. Before the introduction of Pt XIIA of the LG Act, the erection of a building was regulated by Pt XI of the LG Act, which commenced on 1 January 1920. Section 311 of the LG Act provided that: “A building shall not be erected or altered unless the approval of the council is obtained therefor beforehand.” A “building” included “any structure or part thereof”: s 304. Section 312 prescribed the procedure for making an application for building approval. Section 313 prescribed the matters to be taken into consideration in determining an application. Section 314 prescribed the procedure for approving and disapproving an application. Although s 311 required approval to be obtained for the erection of a building, no approval was required for the use of a building.

40. In addition, Ordinance 55, Regulation of Advertisements and Structures for the Display of Advertisements (Ordinance 55), made under s 513(q) of Pt XXIII of the LG Act, regulated the erection of an advertising structure and the display of an advertisement. Clauses 3, 4 and 5 provided:

“3. Except as provided in clause 4 of this Ordinance, a person shall not, without first obtaining a written permit from the Council, retain or erect, affix, paint, paste, chalk, print, mark, or display any sign, notice, device, or representation in the nature of an advertisement on or above any building, or on any rock, cliff, tree, fence, post, pole, bridge, culvert, railing, wall, or structure, other than a structure licensed as a general advertising structure under this Ordinance, or in or on any place or thing visible from any public place or public reserve or from any navigable water.

4. (1) Advertisements in the nature of signs, notices, or notice-boards (other than illuminated signs, notices, or notice-boards) may, subject to any direction which the Council may give with respect to the size and general appearance thereof, be retained or erected, established or placed in or on any premises provided that they do not contain anything more than—

(a) the name of any person residing or carrying on any business, trade, industry, or profession in or on such premises;

(b) the name of such premises, and any necessary or usual directions or cautions relating to such premises, or the business, trade, industry, or profession carried on therein or thereon;

(c) a statement as to the nature of the business, trade, industry, or profession carried on in or on such premises;

(d) a description or a list of prices of the goods for sale or hire in or on such premises;

(e) a notice that such premises are to let or for sale, with particulars of the same, and the name and address of the person of whom inquiries may be made;

(f) the contents bill of a newspaper or periodical on sate in or on such premises;

(g) an advertisement as to meetings, entertainments, or religious services to be held in or on such premises.

(2) The Council may at any time direct the owner or occupier of any premises in or on which any such sign, notice, or notice-board is displayed, to make such alterations in the size or general appearance of such sign, notice, or notice-board as it may see fit. Such owner or occupier shall forthwith comply with any such direction. Where such owner or occupier neglects or refuses to comply, the Council may obliterate or demolish, the sign, notice, or notice-board.

5. (1) A person shall not erect or use a general advertising structure for the display of advertisements unless—

(a) he is the holder of a licence for such structure issued under this Ordinance and for the time being in force; or

(b) he is the holder of a licence for such structure in existence at the commencement of this Ordinance and for the time being in force.”

41. Ordinance 55 entered into force on 24 February 1933. It was repealed and replaced by another Ordinance 55 on 30 March 1973. The replacement Ordinance 55 continued to require an approval for the erection of an advertising structure and a licence for the display of an advertisement: cl 5. Licences could be granted for up to 5 years until the Ordinance was amended on 19 July 1991 to reduce this period to a maximum of 2 years. Ordinance 55 remained in force until 1 September 1995.

42. This process of tracing back the use of the building for the purpose of advertising to determine whether that use was for a lawful purpose required the Commissioner to make findings of fact regarding whether the building was being used for the purpose of advertising at each of the dates when the relevant statutory provisions came into force and, if so, whether that use was lawful at that time. As I have noted, this latter question of lawfulness has two components: first, whether the use of the building for that purpose itself was lawful and, second, whether the building being used for that purpose was lawfully erected. Although answering these questions involves application of the relevant provisions of the statutes and statutory instruments, the answers are findings of fact, drawn from the evidence before the Court.

43. It is in this context that Save the Robots’ first asserted error on a question of law needs to be considered. Save the Robots contends that the findings the Commissioner made in [48] and [49] of the judgment necessarily satisfied each of these three elements of paragraph (a) of the definition of existing use, but the Commissioner concluded to the contrary. This involved error on a question of law.

44. The findings made by the Commissioner in [48] and [49] were as follows:

“48. 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).

49. 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.”

45. At most, the Commissioner in these paragraphs has made findings, drawn from the photographs referred to, that signs displaying the specified advertisements were on the roof of the building in the specified years. The Commissioner did not make any findings regarding the advertising structures on which these advertisements were displayed, as the structures had varied over time and the timing and extent of the variations were not agreed.

46. The Commissioner’s findings in [48] and [49] are insufficient to satisfy any of the three elements of paragraph (a) of the definition of existing use. As to the first element, the Commissioner does not identify in [48] and [49] with the necessary particularity what is the building being used for the purpose of advertising. The Commissioner identifies that advertising signs were displayed on the roof of the building but the Commissioner does not delineate any part of the roof used for this purpose as being the relevant building being used for the existing use, or, insofar as a building includes a structure, the Commissioner does not identify the advertising structures on which the advertising signs were displayed. The building being used for the existing use is left unidentified.

47. As to the second element, the Commissioner did not find in [48] and [49] that use of an unidentified structure on the roof of the building for the purpose of advertising was continuing immediately before the coming into force of each of the relevant statutory provisions regulating the erection and use of structures for the purpose of advertising, only that there was a use for the purpose of advertising in the years in which the photographs were taken. Mere identification of the years is insufficient to satisfy the particular time requirement in paragraph (a) of the definition of existing use, that the use be continuing at each of the dates immediately before the coming into force of the relevant environment planning instrument.

48. As to the third element, not only did the Commissioner not identify in [48] and [49] what were the critical dates on which the relevant statutory provisions came into force, the Commissioner also did not determine whether the use of the unidentified structure on the roof of the building was for a lawful purpose at each of those dates. The Commissioner did not make any findings in [48] and [49] regarding the lawfulness of the use of the building for the purpose of advertising.

49. In these circumstances, Save the Robots has not established that the facts found by the Commissioner in [48] and [49] necessarily fell within paragraph (a) of the definition of existing use, so that the Commissioner’s contrary conclusion in [84] that “there are no existing use rights applicable to the existing billboard” involved an error on a question of law.

Argument that the Commissioner conflated paragraphs (a) and (b) of the definition of existing use

50. The second error on a question of law raised by ground 1 is the Commissioner’s alleged conflation of the requirements of the different paragraphs of the definition of existing use. Although I have already quoted paragraph (a) of the definition, it will assist in understanding this alleged error on a question of law if I quote paragraph (a) again, along with paragraph (b), to identify the differences between the two paragraphs:

“(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.”

51. The essential difference between the two paragraphs of the definition of existing use is that paragraph (a) deals with the situation where the use said to be an existing use commences before there was a requirement to obtain development consent or other approval to carry out the use, while paragraph (b) deals with the situation where the use said to be an existing use commences upon the grant of, and is carried out in accordance with, a development consent: Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 208 LGERA 54; [2015] NSWCA 147 at [11].

52. Common to both paragraphs is that the use, howsoever commenced, was being carried out for a lawful purpose immediately before the coming into force of an environmental planning instrument which has the effect of prohibiting the use. This common requirement of the definition of existing use in s 4.65 of the EPA Act is what distinguishes an existing use from the continuance of other lawful uses under s 4.68 of the EPA Act. The latter provision deals with the situation where a use for a lawful purpose, again howsoever commenced, is continuing to be carried out immediately before the coming into force of an environmental planning instrument which requires that development consent be obtained to carry out that use. Section 4.68(1) provides that such environmental planning instrument does not operate so as to require consent to be obtained for the continuance of that use for a lawful purpose.

53. Save the Robots contends that the Commissioner’s conflation of the different requirements of paragraphs (a) and (b) of the definition of existing use is manifest in the findings of the Commissioner in [85] and [86] of the judgment. These paragraphs provide:

“85. 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.

86. Even assuming that existing use rights did arise in 1951, the 1999 consent was clearly inconsistent with their continuation.”

54. Starting with [85], Save the Robots argues that the Commissioner’s statement in [85] that: “There is no evidence of either a development consent for the advertising structure or a licence for the sign at this time”, being 1951 when CCPSO came into effect, revealed that the Commissioner erroneously applied the requirement of paragraph (b) of the definition, that the use of the building is one for which development consent was granted, in her finding that the use of the building did not satisfy the requirements of paragraph (a) of the definition. I reject this submission.

55. The Commissioner’s statement does not reveal any conflation of the requirements of paragraphs (a) and (b) of the definition of existing use. As I have earlier explained, the third element in paragraph (a) of the definition that the use of the building be for a lawful purpose involves tracing the history of the use back in time to establish that, first, when the use was established it was for a lawful purpose and, second, the use continued to be for a lawful purpose up to the point in time immediately before the coming into force of the environmental planning instrument that has the effect of prohibiting that use.

56. In the facts of this case, one of the points in time that the use of the building for the purpose of advertising had to be for a lawful purpose was immediately before the coming into force of CCPSO on 27 June 1951. Before that time, there were three statutory requirements for some form of approval to be obtained for the erection and use of the building for the purpose of advertising. In order of coming into force, the first requirement was in s 311 of the LG Act, which required building approval to be obtained to erect a building, which included a structure such as an advertising structure on which an advertisement is displayed. This requirement applied from 1 January 1920. The second requirement was under cl 5 of Ordinance 55, which required both an approval to erect an advertising structure and a licence to display an advertisement on the structure to be obtained. This requirement applied from 24 February 1933. The third requirement was under the interim development provisions of Pt XIIA of the LG Act, which came into force on 12 July 1946. Section 342U(1) of the LG Act and cl 6(1) of Ordinance 105 required development consent to carry out the erection of a building, which included a structure such as an advertising structure, to be obtained.

57. In the evidence in the court below, there was not a building approval under s 311 of the LG Act, an approval or a licence under cl 5 of Ordinance 55, or a development consent under s 342U(1) of the LG Act and cl 6 of Ordinance 105 to erect an advertising structure or display an advertisement on an advertising structure on the roof of the building immediately before the coming into force of CCPSO on 27 June 1951.

58. The Commissioner’s statement in [85] was a finding to this effect. The Commissioner found that Save the Robots had not demonstrated that “existing use rights arose in 1951 when CCPSO came into effect”: at [85]. It built upon the Commissioner’s earlier findings that:

(a) “There is no evidence of approval for the erection of the advertising sign or supporting structure in the 1920s”: at [58]; (b) “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”: at [59]; and (c) Various approvals and consents were granted from 1979 onwards: at [60].

59. The Commissioner, in making these findings in [58]-[60] and [84], was not evaluating whether there was a use of the building for which development consent was granted within paragraph (b) of the definition of existing use, but rather was deciding whether there was a use of the building for a lawful purpose within paragraph (a) of the definition of existing use. That was to apply correctly the requirements of paragraph (a) of the definition of existing use.

60. With regard to the Commissioner’s statement in [86] that the 1999 consent was clearly inconsistent with the continuation of any existing use rights that might have arisen in 1951 upon the coming into force of CCPSO, Save the Robots contends that this statement again reveals that the Commissioner was conflating the requirement regarding a development consent in paragraph (b) of the definition of existing use with the requirements of paragraph (a) of that definition, and thereby misinterpreted the definition.

61. Save the Robots submits that the Commissioner’s misinterpretation was twofold. First, Save the Robots submits that the Commissioner assumed the terms of the 1999 consent became the lawful purpose from which the existing use arose pursuant to paragraph (a) of the definition of existing use. Save the Robots submits that this error is evidenced by the Commissioner’s citation with approval in [87] of MM & SW Enterprises Pty L**td v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 at [81] and [82]. The Commissioner thereby applied paragraph (b) of the definition of existing use, rather than paragraph (a) of the definition.

62. Second, Save the Robots submits that the Commissioner failed to appreciate that at the time of the grant of the 1999 consent, the use of the building for the purpose of advertising was a continuance of a use for a lawful purpose protected by the then s 109(1) of the EPA Act. Whilst the use of the building for the purpose of advertising was an existing use under CCPSO in 1951, on the coming into force of the EPA Act on 1 September 1980, the use became a continuing use under s 109(1) of the EPA Act. This was because under the then applicable CSPSO, which was a deemed environmental planning instrument, development for the purpose of advertising structures was permissible with consent. That development did not become prohibited until 16 March 2001 when SEPP 64 came into force. Hence, the use of the building for the purpose of advertising was not an existing use as defined in the then s 106(1) of the EPA Act, but rather a continuing use under s 109(1) of the EPA Act.

63. Save the Robots submits that classification of the use as a continuing use was maintained under SSLEP 1998, which came into force on 24 April 1998. The erection and use of advertising structures was permissible with consent under SSLEP 1998. But s 109(1) of the EPA Act obviated the need to obtain consent. Section 109(1) provided that:

“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”

64. Nevertheless, s 109(2) of the EPA Act stated that s 109(1) did not authorise “any alteration or extension to or rebuilding of a building or work.”

65. In late 1998, Claude Neon wished to replace the existing sign to display a Nokia advertisement. This would involve the alteration or rebuilding of the existing sign and structure, which was the building being used for the purpose of advertising, so that development consent was required under s 109(2) of the EPA Act. Save the Robots argues, however, that development consent was not needed to continue the use of the building for the purpose of advertising, by operation of s 109(1) of the EPA Act.

66. Accordingly, Claude Neon made a development application to alter or rebuild the existing sign and structure to display a Nokia advertisement. The development application dated 21 December 1998 sought consent for “the installation of Nokia sign face on existing advertising structure incorporating mobile phone protrusion and electronic display…”. Development consent was granted on 10 February 1999 (the 1999 consent) for “Replacement of advertisement and retention of sign face and structure for one year from 10/02/99”, subject to conditions. One of the conditions was condition 4, which provided:

“That the sign and all associated supporting structures including any pre existing structures on the roof be fully removed and the roof made good and cleared of all debris associated in any way with advertising immediately upon expiry of this consent.”

67. The development consent was later modified on 11 August 1999 to extend the duration of the consent for a further year until 10 February 2001.

68. Clause Neon, the holder of the development consent, elected to take up the 1999 consent and altered or rebuilt the advertising sign and structure in accordance with the consent.

69. Save the Robots submits that this grant and taking up of the 1999 consent did not affect the use of the building for the purpose of advertising; that use could be maintained by operation of s 109(1) of the EPA Act. The use of the building for the purpose of advertising continued to be protected after the coming into force of SEPP 64 on 16 March 2001. That was three weeks after the 1999 consent expired on 10 February 2001. SEPP 64 prohibited the display of an advertisement. As a consequence, the use of the building for the purpose of advertising ceased to be protected under s 109(1) as a continuing use and instead became protected under s 107(1) of the EPA Act as an existing use.

70. Save the Robots submits that if what the Commissioner meant by an inconsistency between the 1999 consent and the existing use rights at [86] was that the development consent had the effect of replacing the continuing use rights under s 109(1) of the EPA Act, she misconstrued the role of that consent in respect of the continuing use that pre-dated planning controls in 1951 and the effect of s 109(1) (now s 4.68(1)) of the EPA Act.

71. These submissions misunderstand what the Commissioner was saying. In [86], the Commissioner assumes, contrary to her finding in [84], that “existing use rights did arise in 1951.” This assumed acceptance of Save the Robots’ argument that the use of the building for the purpose of advertising was an existing use under CCPSO in 1951. The Commissioner’s statement in [86] that “the 1999 consent was clearly inconsistent with their continuation” is a conclusion as to the effect of the 1999 consent on the continuance of that use, which the Commissioner had assumed arose in 1951 (as an existing use) and continued up until the grant of the 1999 consent (although after the coming into force of the EPA Act in 1980, as a continuing use rather than as an existing use). The Commissioner explained her reasons for this conclusion in [87]-[91]. I will deal with these reasons in a moment.

72. At this juncture, however, it is important to recognise that the Commissioner’s assumption that an existing use arose in 1951 on the coming into force of CCPSO and her conclusion regarding the effect of the 1999 consent on that use involved the application of paragraph (a), and not paragraph (b), of the definition of existing use. The Commissioner assumed that the existing use arose before, and not as a consequence of, the grant of the 1999 consent. Paragraph (b) of the definition of existing use only applies where the use of a building, work or land is a use for which development consent was granted before the coming into force of an environmental planning instrument having the effect of prohibiting the use. That was not the circumstance assumed by the Commissioner. Hence, the Commissioner’s assumption and conclusion did not conflate the requirements of paragraphs (a) and (b) of the definition of existing use.

73. I return to the Commissioner’s reasons for her conclusion. On the assumption that an existing use arose in 1951, and that the use had been continued up until 1999, the use would have been a continuing use for a lawful purpose protected by the then s 109(1) (now s 4.68(1)) of the EPA Act, which would have allowed the continuance of that use. Section 109(2)(a) (now s 4.68(2)(a)), however, prevented “any alteration or extension to or rebuilding of a building or work”, except by applying for and obtaining development consent for such development.

74. As with all development consents, a development consent for the alteration or extension to or rebuilding of a building the subject of a continuing use authorises, but does not oblige, the approved development to be carried out. The holder of the development consent can elect whether or not to carry out the development in accordance with the development consent. If the holder elects to take up the development consent, the carrying out of the approved alteration or extension to or rebuilding of the building in accordance with the terms of the consent, effects a change in the continuing use. The building which is the subject of the continuing use becomes the altered, extended or rebuilt building.

75. This is what the Commissioner assumed occurred in 1999. Claude Neon made a development application seeking development consent to alter or rebuild the existing advertising sign on the existing advertising structure. Development consent was granted on terms that limited the duration of the consent to one year, later extended for a further year, and required thereafter the removal of the advertising sign and structure.

76. This was the context in which the Commissioner found that the 1999 consent affected the existing use, which she assumed may have existed from 1951 and continued up to the grant of the 1999 consent. The Commissioner found that “[b]y taking up the consent, Claude Neon agreed to comply with its conditions”: at [89]. The conditions of the 1999 consent included that “[t]he 1999 consent was limited in duration and required the sign and associated structures to be removed upon its expiry”: at [88]. As a consequence, the Commissioner found that “the lawful use provided for under that consent ceased on 10 February 2001”: at [88]. The Commissioner did not accept Save the Robots’ submission that the 1999 consent “had no effect on any existing rights which may have existed prior to 1999”: at [89].

77. In reaching this conclusion, the Commissioner considered in [90] the decision of Pearlman CJ in South Sydney City Council v Nettlefold Advertising Pty Ltd [1998] NSWLEC 202 at [18]-[19]. There, an advertising structure and sign had been in existence on the roof of another building in Oxford Street since 1935 but in 1981, development consent was granted for alterations to the structure and sign with a duration of 5 years. Pearlman CJ held that the grant and taking up of the development consent changed the existing use, so that when the development consent lapsed, the right to use the structure and sign for the purpose specified in the development application ceased as a consequence.

78. This reasoning of the Commissioner addresses an existing use under paragraph (a) of the definition of existing use. Although the use of the building that was the subject of the 1999 consent was a continuing use protected by s 109(1) of the EPA Act at the time of granting that consent, the use would have become an existing use, as defined in the then s 106 of the EPA Act, on the coming into force of SEPP 64 on 16 March 2001 if it had continued after the expiry of the 1999 consent on 10 February 2001 authorising the use of the altered or rebuilt advertising sign. But the Commissioner found that it did not continue after the expiry of the 1999 consent. This was because the grant and taking up of the 1999 consent effected a change to the continuing use: the use became a use of the altered or rebuilt building (the new advertising sign on the existing structure) in accordance with the terms of the 1999 consent. One of those terms limited the duration of the use to 10 February 2001.

79. The Commissioner’s analysis of the effect of the 1999 consent on the existing use assumed to have arisen in 1951 did not involve a misinterpretation of the definition of existing use in s 4.65 of the EPA Act. The Commissioner did not seek to apply paragraph (b) of the definition instead of paragraph (a) of the definition. The Commissioner was addressing the requirement of paragraph (a) that the use of the building be for a lawful purpose immediately before the coming into force of the Industry SEPP on 1 March 2022, which had the effect of prohibiting the use. The Commissioner found that the use was not for a lawful purpose at that date because the use had ceased to be lawful on the expiry of the 1999 consent, which had effected a change to the use, on 10 February 2001. This reasoning did not involve a misinterpretation of the definition of existing use or a conflation of the requirements of paragraphs (a) and (b) of the definition.

Argument that the Commissioner misconstrued or misapplied the phrase “for a lawful purpose”

80. The third error on a question of law raised by ground 1 is the Commissioner’s alleged misconstruction or misapplication of the requirement in paragraph (a) of the definition of existing use that the use be “for a lawful purpose.” Save the Robots contends that the Commissioner misconstrued or misapplied this phrase in finding in [85] that there was no evidence of a development consent for the advertising structure or a licence for the sign in 1951 when CCPSO came into effect. Save the Robots submits that there was no legal requirement for a development consent or a licence to use the building for the purpose of advertising at the coming into force of CCPSO, because that use had commenced prior to the introduction of CCPSO.

81. Save the Robots sought to distinguish the use of a building for the purpose of advertising from the erection of a building to be used for that purpose: The Corporation of the City of Kensington and Norwood v Claud**e Neon Limited (1979) 22 SASR 91 at 97, 99; Parramatta City Council v Australian Posters Pty Ltd (1986) 58 LGRA 213 at 218; and see generally APN Outdoor (Trading*)* Pty L**td v Melbourne City Council (2012) 187 LGERA 231; [2012] VSC 8.

82. Save the Robots submits that the use of the building for the purpose of advertising commenced in the 1920s, at a time when there was no legal requirement to obtain any approval or licence to carry out that use. CCPSO introduced in 1951 the requirement for development consent for the erection of a building or the change in use of a building, but allowed the maintenance of an existing use, as defined in cl 32. Save the Robots contends that the use of the building for the purpose of advertising was an existing use within that definition. As a consequence, Save the Robots contends that CCPSO did not require development consent to be obtained for the continuance of the use of the building for the purpose of advertising. Save the Robots submits that the Commissioner misdirected herself in finding in [85] that there was a need for, but no evidence of, “either a development consent for the advertising structure or a licence for the sign at this time,” being when CCPSO came into force.

83. Again, however, Save the Robots’ argument misunderstands what the Commissioner was saying in [85]. The Commissioner’s statement that there was no evidence that either a development consent for the advertising structure or a licence for the advertising sign had been obtained by the time of the coming into force of CCPSO, was a recognition that continuance of the use of the building for the purpose of advertising at that time would not require a development consent or a licence to use the building for the purpose of advertising if the use had already commenced by that time, but any such use would have to have been for a lawful purpose. To be for a lawful purpose, a building approval under Part XI of the LG Act, an approval under Ordinance 55 and a development consent under Part XIIA of the LG Act and Ordinance 105 would have been required for the erection of the advertising structure as well as a licence for the display of the advertisement would have been required under Ordinance 55 before the coming into force of CCPSO. Only then could the use be for a lawful purpose and hence satisfy the requirement of paragraph (a) of the definition of existing use. The Commissioner found as a fact that any required approval, consent or licence had not been obtained before the coming into force of CCPSO.

84. The Commissioner did not, therefore, misconstrue or misapply the phrase “for a lawful purpose” in paragraph (a) of the definition of existing use.

Existing use ground not established

85. Save the Robots has not established that the Commissioner erred on a question of law in any of the three respects raised by ground 1. Ground 1 is therefore rejected.

The alternative sign ground

86. Ground 2 in the Amended Summons is that:

“the Acting Commissioner erred on a question of law in failing to consider and make any findings on a principal contested issue in the proceedings of the alternative proposal advanced by the applicant of a fixed, non-digital billboard instead of a digital billboard.”

87. Save the Robots’ original development application had sought retention of the existing, non-digital, advertising sign, although it proposed to relocate the sign from the roof to be integrated into the façade of the new addition to the building. After the appeal was commenced, Save the Robots amended the development application to seek consent instead for a digital advertising sign integrated into the façade of the revised addition to the building. This became the development for which consent was sought and which was the subject of the appeal.

88. At the hearing in the court below, Transport for NSW raised concern about the impact on traffic safety of the proposed digital advertising sign. The Commissioner raised with the parties that “one possible solution would be to grant approval for a billboard that wasn’t digital”: Transcript 18/09/2024. Later, the Commissioner asked the parties for submissions on whether development consent could be granted for “development with a static billboard.”

89. Save the Robots responded to the Commissioner’s questions, maintaining that its primary case was for approval of the proposed digital sign, but “if it were not to be a digital sign, my client would accept a fixed billboard in the location as proposed in the scheme”: Transcript 11/10/2024. Save the Robots indicated that the Court had sufficient information before it to assess a static advertising sign, the only difference to the digital advertising sign being the material of which the sign was made. The Council opposed development consent being granted to a static advertising sign, noting that “[i]t’s not been the subject of this development application, it’s not really been assessed or the focus of any evidence”: Transcript 22/10/2024. At the Court’s request, the parties filed supplementary draft conditions of consent if the Court were minded to grant development consent for a static advertising sign, particularly a revised condition 23.

90. Save the Robots contends that in these circumstances the issue of whether development consent ought to be granted to a static advertising sign, instead of the proposed digital advertising sign, was a principal contested issue in the proceedings. Save the Robots notes that under s 4.17(1)(g) of the EPA Act, a condition of development consent may be imposed to modify details of the development the subject of the development application. The Commissioner thereby had power to grant consent to Save the Robots’ development application subject to a condition of consent that the proposed digital advertising sign be modified to be a static advertising sign. Save the Robots contends that it did not need to amend its development application in order for the Court to consider and approve a static advertising sign, as the Court could simply exercise the power under s 4.17(1)(g) of the EPA Act to modify the development to be a static advertising sign.

91. Save the Robots submits that the Commissioner failed to address this issue in her judgment. This issue of whether the advertising sign should be approved as a digital or static advertising sign was a central issue in the case and a matter on which the parties had made submissions. Save the Robots submits that the Commissioner erred on a question of law in failing to consider and make findings on whether consent should be granted for the development subject to a condition that the advertising sign be a static sign rather than a digital sign.

92. The Council contests that the Commissioner was obliged to consider or make findings about a static advertising sign for two reasons. First, the question of whether development consent should be granted to a static advertising sign was not a principal contested issue joined between the parties. In an appeal under s 8.7(1) of the EPA Act, such as the appeal brought by Save the Robots, the issues are defined and limited by the development that is the subject of the development application. On the appeal, the Court exercises the functions of the consent authority to consider and determine, under ss 4.15, 4.16 and 4.17 of the EPA Act, the particular development application that is the subject of the appeal. The Court has no power to consider a development that is not the subject of the development application or to determine, by granting or refusing consent, a development application that is not the subject of the appeal: Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 at [201]-[202]. The power under s 4.16(1) of the EPA Act to determine a development application by the grant of consent subject to conditions must be exercised in relation to the development for which consent is sought in the development application: at [203].

93. The Council notes that the development of a static advertising sign was not the development for which consent was sought in the amended development application. On the appeal, Save the Robots had amended its development application to seek consent to erect a new digital advertising sign instead of moving the existing, static advertising sign. When the Commissioner asked the parties to consider whether consent could be granted to a static advertising sign, Save the Robots chose not to apply to amend again the development application to seek consent for a static advertising sign, and instead chose to persist with seeking consent for the proposed digital advertising sign.

94. The Council submits that, in these circumstances, the Commissioner was under no obligation to consider and decide whether to grant consent to a development that was not the subject of the development application before the Court.

95. The Council submits, in any event, that the issue of whether development consent ought to be granted to a static advertising sign fell far short of being a principal contested issue. It was not an issue raised by the Council in its Statement of Facts and Contentions or by Save the Robots in its Statement of Facts and Contentions in Reply. Although the Commissioner asked the parties to consider the matter, and to provide submissions and conditions on it, the Commissioner did not formally identify that matter as a principal contested issue on which she was contemplating determining the development application and the appeal. Merely asking the parties questions about a matter does not make the matter a principal contested issue in the proceedings.

96. The Council submits that there was insufficient evidence or argument on what was the alternative development to which development consent could be granted. As the idea for a static advertising sign was raised by the Commissioner rather than Save the Robots, there was no identification of what precisely would be the nature, extent or other features of the static advertising sign to which development consent could be granted and on what conditions.

97. The second reason advanced by the Council was that the Commissioner only had an obligation to make findings on the essential grounds on which her decision rested. The Commissioner’s findings that there was not an existing use precluded development consent being granted for any advertising sign, whether digital or non-digital. The Commissioner had no legal obligation to go on to make findings in the alternative.

98. I reject ground 2. The question of whether development consent should be granted to a static advertising sign, or to a digital advertising sign on a condition that the digital advertising sign be modified to be instead a static advertising sign, was not a principal contested issue in the proceedings and the Commissioner had no obligation to decide the question. This conclusion necessarily follows from the statutory scheme for making, considering and determining a development application and for hearing and disposing of an appeal against the determination of a development application.

99. Save the Robots’ appeal is under s 8.7(1) of the EPA Act which provides:

“(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.”

100. The “application” determined by the consent authority is the application that Save the Robots made under s 4.12(1) of the EPA Act, seeking consent to carry out development. The development for which consent was sought in the development application included the rebuilding of the existing advertising sign and structure, currently on the roof of the building but proposed to be relocated to be on the façade of the proposed addition to the building.

101. The Council determined this development application by refusing consent. Save the Robots, being dissatisfied with that determination, appealed to the Court. Save the Robots applied, and the Court allowed Save the Robots, to amend the development application under s 37(1) of the EPA Regulation to substitute a new digital advertising sign as the development for which consent was sought in the development application.

102. The Commissioner, on hearing and disposing of Save the Robots’ appeal under s 8.7(1) of the EPA Act, exercised the functions of the Council as the consent authority whose decision was the subject of the appeal to consider under s 4.15(1) of the EPA Act and to determine under s 4.16(1) of the EPA Act the amended development application, by granting consent to the application, either unconditionally or subject to conditions, or refusing consent to the application. The Commissioner metaphorically stood in the shoes of the Council in exercising these functions: see Ku-ring-gai Council v Bunnings Properties Pty Ltd at [142]-[163] for a discussion of the Court’s role in hearing and disposing of an appeal under s 8.7(1) of the EPA Act.

103. Ordinarily, the issues on an appeal under s 8.7(1) of the EPA Act are confined to the Court’s exercise of these functions under s 4.15(1) and s 4.16(1) of the EPA Act. Sometimes, there may also be an issue concerning the Court’s exercise of other functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal (see s 8.14(1) of the EPA Act), but not in this case.

104. The ordinary situation applied to Save the Robot’s appeal. Notwithstanding that Save the Robots relied upon the existing use provisions in Part 5 of the EPA Regulation to apply for development consent for the rebuilding of the advertising sign and structure, that development could be included in the same development application that sought consent for the other developments of the building which were permissible with consent. The consequence was that the development application was made in respect of different types of development, as permitted under s 4.12(2) of the EPA Act.

105. There was, therefore, one determination of the Council refusing that development application, one appeal against that determination, and one exercise by the Court on appeal of the functions under s 4.15(1) and s 4.16(1) of the EPA Act to consider and determine the development application the subject of the appeal.

106. The issues on the appeal only concerned the Court’s exercise of the functions under s 4.15(1) and s 4.16(1) of the EPA Act to consider and determine the amended development application the subject of the appeal. The contentions that the Council raised in its Amended Statement of Facts and Contentions, all concerned how the Court should exercise those functions. The Council’s primary case was that the Court should determine the amended development application in respect of the proposed digital advertising sign by refusing consent for a variety of reasons. Save the Robots, to the contrary, argued that the Court should determine the amended development application in respect of the proposed digital advertising sign by granting consent to the application. The parties’ competing contentions framed the issues joined between the parties.

107. As a consequence, no issue was joined between the parties in respect of any development that was not the subject of the amended development application to be determined by the Court on the appeal. The Court had no jurisdiction, in exercising the function of the consent authority under s 4.16(1) of the EPA Act to determine the development application by granting consent for the carrying out of any development other than the development for which consent was sought in the development application the subject of the appeal to the Court: Ku-ring-gai Council v Bunnings Properties Pty Ltd at [202]. Hence, the parties could not raise as an issue on the appeal whether consent should be granted to an advertising sign and structure other than the digital advertising sign for which consent was sought in the amended development application.

108. The Commissioner hearing the appeal was in no better position to raise as an issue on the appeal whether development consent might be granted to a development other than the development the subject of the amended development application before the Court. It may be accepted that a Commissioner hearing an appeal under s 8.7(1) of the EPA Act can raise an issue additional to the issues raised by the parties provided the Commissioner affords the parties procedural fairness: see for example Initial Action Pty L**td v Woollahra Municipal C**ouncil (2018) 236 LGERA 256; [2018] NSWLEC 118 at [129]-[130]. But the issue must still be one that the Court has jurisdiction to decide on an appeal under s 8.7(1) of the EPA Act. An issue concerning the Court granting consent to carry out a development other than the development the subject of the development application is not within jurisdiction: Ku-ring-gai Council v Bunnings Properties Pty Ltd at [202]-[204].

109. This is not to say that the Commissioner could not ask the parties whether a solution to the dispute between the parties might be for the applicant to amend the development application to seek consent for a different development, in this case a static advertising sign instead of the proposed digital advertising sign. If the parties agree to this course and the development application is amended accordingly, the development application which the Court is tasked with determining becomes the amended development application seeking consent for the different development of the static advertising sign and not the digital advertising sign. But if the applicant chooses not to amend the development application to seek consent for the different development of the static advertising sign, which is what Save the Robots chose to do, the Commissioner’s function remains to determine the development application that is before the Court, which in this case sought consent for the proposed digital advertising sign.

110. In these circumstances, the issue of whether the Commissioner should grant consent to carry out the development of a static advertising sign was not a principal contested issue in the proceedings in the court below.

111. Save the Robots’ alternative argument was that the Commissioner should have considered exercising the power under s 4.17(1)(g) of the EPA Act to grant consent to the amended development application to carry out the development of the digital advertising sign, subject to a condition that modified details of that development. The modification suggested was to require the digital advertising sign to be a static advertising sign. The Commissioner requested and the parties provided a draft condition for such a static advertising sign. Save the Robots submitted that the Commissioner’s failure to consider imposing a condition of consent requiring a static advertising sign involved a failure to decide a principal contested issue.

112. I reject this argument. The Commissioner had no power to grant consent to the amended development application to carry out the development of a digital advertising sign on a condition modifying that development to no longer be a digital advertising sign but instead to be the different development of a static advertising sign. The power under s 4.17(1)(g) of the EPA Act to impose a condition of development consent to modify details of the development the subject of the development application does not allow a radical transformation of that development so that it no longer answers the description of being the development that is the subject of the development application. In the present case, the proposed digital advertising screen was fundamentally different to the existing non-digital advertising sign, which led to Save the Robots amending the development application before the Court to seek consent for the digital advertising sign instead of the existing advertising sign. So too, the digital advertising sign the subject of the amended development application would be fundamentally different to a static advertising sign, whose nature, extent and other features were never particularised.

113. Accordingly, the Commissioner would not have had power under s 4.16(1)(a) and s 4.17(1)(g) of the EPA Act to have granted development consent to the amended development application to carry out the development of a digital advertising sign on a condition that the advertising sign not be a digital advertising sign. That would be to grant consent to a development that was not the subject of the development application before the Court and constructively to refuse consent to the development that was the subject of that development application.

114. In these circumstances, the question of whether the Commissioner should grant development consent to a digital advertising sign subject to a condition that it not be a digital advertising sign was not a principal contested issue in the appeal that the Commissioner was obliged to decide.

Conclusion and orders

115. Save the Robots has not established either of its grounds of appeal. The appeal should be dismissed. The parties agree that costs should follow the event.

116. The Court orders:

117. The appeal is dismissed.

118. The appellant is to pay the respondent’s costs of the appeal.

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