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[2025] NSWLEC 150
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-19
Preston CJ
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Medium Neutral Citation: Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 150
Hearing dates: 26-28 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 upheld.
(2) The development control order given by the Council of the City of Sydney on 2 July 2024 to Save the Robots Pty Ltd with respect to premises at 191-195 Oxford Street, Darlinghurst, to demolish an advertisement and any associated structure on the roof of the premises, is modified by specifying the period for compliance to be 1 year from the date of the Court’s order on 19 December 2025, being 19 December 2026.
Catchwords: APPEAL – development control order – removal of advertising sign and associated structure – when order may be given – unsightly, objectionable or injurious to amenity of public place – whether sign and structure are – advertisement displayed unlawfully – associated structure erected unlawfully – whether sign and structure are – whether use of sign and structure for advertising an existing use – prior determination of existing use issue in another administrative appeal – whether issue estoppel – circumstances for making order established – discretion to revoke order – basis for not established – modify order to allow time for compliance
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 3.42(1), 4.16(1), 4.2(1)(b), 4.3, 4.53, 4.65, 4.66(1), 8.18(1), 8.18(4), 8.7, 9.34, item 6 of the table to Pt 1 of Sch 5,
Land and Environment Court Act 1979 (NSW), s 30(1), 56A
Local Government (Town and Country Planning) Amendment Act 1945 (NSW)
Local Government Act 1906 (NSW), ss 3, 109, 110, 187
Local Government Act 1919 (NSW), ss 304, 312, 311, 314, Div 7 Part XI, XIIA, XXIII
South Sydney Local Environmental Plan 1998, cl 13
South Sydney Local Environmental Plan No. 101
State Environmental Planning Policy (Industry and Employment) 2021 (NSW), ss 3.1(1)(a), 3.2, 3.8(1), Ch 3,
State Environmental Planning Policy No 64 – Advertising and Signage, cl 10
Sydney Development Control Plan 2012 (NSW), ss 2.4.10, 3.9, 3.16, 5.11
Sydney Local Environmental Plan 2012 (NSW), cll 5,10, Sch 5, 6.60D
County of Cumberland Planning Scheme Ordinance, cll 3, 26, 32
City of Sydney Planning Scheme Ordinance (NSW), cll 15, 26
Ordinance No 105, Town and Country Planning (General Interim Development) Ordinance, cl 6(1), Pt II, III
Ordinance No 55, Regulation of Advertisements and Structures for the Display of Advertisements, cll 3, 4, 5
Ordinance No 70, Regulation of Building and of Subdivision of Building Land, cll 2, 5, 6
Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Benmill Pty Ltd v North Sydney Council (No 2) [2020] NSWLEC 44
Blair v Curren (1939) 62 CLR 464
Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568
Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337
Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48
Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665; [2014] NSWCA 336
Grozier v Tate (1946) 64 WN (NSW) 1
Harris v Scenic Rim Regional Council (2014) 201 LGERA 12; [2014] QPEC 16
Ku-ring-gai Council v Bunnings Properties Pty Ltd (2018) 236 LGERA 35; [2019] NSWCA 28
Malass v Strathfield Municipal Council [2025] NSWLEC 44
Nikolaidas v Pittwater Council (2009) 171 LGERA 104; [2009] NSWLEC 227
PE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437
Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278
PNJ v The Queen (2009) 83 ALJR 384; [2009] HCA 6
Russo v Kogarah Municipal Council (1999) 105 LGERA 290; [1999] NSWCA 303
Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 1081
Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 56
Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133
The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] 130 CLR 353
Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351
Victoria International Container Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11
Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614
Williams v Spautz (1992) 174 CLR 509
Category: Principal judgment
Parties: Save the Robots Pty Ltd ATF Save the Robots Trust (Appellant)
The Council of the City of Sydney (First Respondent)
JC Decaux Australia Trading Pty Ltd (Second Respondent)
Representation: Counsel:
A Galasso SC (Appellant and Second Respondent)
A Shearer SC and H Ryan (First Respondent)
Solicitors:
Mills Oakley Lawyers (Appellant)
Mardi Flick (First Respondent)
Norton Rose Fulbright (Second Respondent)
File Number(s): 2024/262124
Publication restriction: NIL
The Council of the City of Sydney (the Council) issued to Save the Robots Pty Ltd ATF Save the Robots Trust (Save the Robots) a development control order (the Order) to demolish an advertisement and associated structure on the roof of a building at Taylor Square, known as 191-195 Oxford Street, Darlinghurst. Save the Robots appealed against the Order under s 8.18(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Council gave the Order under s 9.34 of the EPA Act and item 6 of the table to Part 1 of Schedule 5 to the EPA Act. That item empowers the Council to give an order “[t]o modify, demolish or remove an advertisement and any associated structure” in circumstances when:
“The advertisement is –
• unsightly, objectionable or injurious to the amenity of any natural landscape, foreshore, public reserve or public place at or near where the advertisement is displayed, or
• displayed contrary to a provision made by or under this Act, or
• associated with a structure erected contrary to a provision made by or under this Act.”
to a person who is:
“• The owner of premises displaying the advertisement or on which the associated structure is erected
• The person responsible for the display of the advertisement and erection of the associated structure.”
“An inspection of the Premises by an Investigation Officer of the City of Sydney on 3rd of July 2024 identified an advertisement and associated structure is located on the roof of the Premises as illustrated in Figure 1 (the Advertisement). The Advertisement is displayed contrary to S4.3 of the Environmental Planning and Assessment Act 1979 and S3.8(1) of the State Environmental Planning Policy (Industry and Employment) 2021.
The Advertisement is unsightly, objectionable or injurious to the amenity of the public place near where it is displayed.”
“The Advertisement is displayed contrary to a provision made by or under the Environmental Planning and Assessment Act 1979 and/or is associated with a structure erected contrary to a provision made by or under the Environmental Planning and Assessment Act 1979.
No Development Consent has been granted for the Advertisement in its present configuration (including the present advertising display).
Furthermore, Development Consent U98/01314 as modified (Consent), which authorised the display of a ‘replacement of an advertisement and retention of sign face and structure’, was the last consent permitting the display of any form of advertisement at the Premises and it expired on 10 February 2001. Condition 4 of the Consent provided:
(4) 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;
Condition 4 of the Consent was not, and has not been, complied with.
The display of the Advertisement is prohibited under S 3.8(1) of the State Environmental Policy (Industry and Employment) 2001 because it is displayed within the Oxford Street Heritage Conservation area.
Further, or in the alternative, the Advertisement is unsightly, objectionable or injurious to the amenity of Oxford Street.”
Save the Robots contests each of these three circumstances. As to the first circumstance in item 6 of the table, Save the Robots contests that the advertisement is unsightly, objectionable or injurious to the amenity of Oxford Street. Save the Robots contends that advertisements have been displayed on structures on the roof of the building on the site for around a hundred years, thereby shaping the character and amenity of Taylor Square.
As to the second circumstance in item 6 of the table, that the advertisement is displayed contrary to s 4.3(a) of the EPA Act or s 3.8(1) of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP), Save the Robots contends that the use of the advertising structure for the purpose of advertising is an existing use as defined in s 4.65 of the EPA Act, and under s 4.66(1) of the EPA Act is able to be continued, despite the prohibition on the display of an advertisement in s 3.8(1) of the Industry SEPP.
As to the third circumstance in item 6 of the table, that the advertisement is associated with a structure erected contrary to a provision made by or under the EPA Act, Save the Robots’ response is again that the use of the structure for the purpose of advertising is an existing use.
If, however, the Court were to find that one or more of the circumstances for giving the Order is or are made out, Save the Robots contends that the Court, in the exercise of its discretion under s 8.18(4) of the EPA Act, should not order the removal of the advertisement and any associated structure at all or alternatively should allow a considerable period of time (around three years) before the advertisement and any associated structure are to be removed.
These arguments of Save the Robots on the appeal frame the issues to be determined by the Court, with one exception. The Council contends that Save the Robots is estopped from raising as a defence to the second and third circumstances that the use of the advertising structure for the purpose of advertising is an existing use. The Council argues that the Commissioner who determined on an earlier appeal to refuse consent to a new digital advertising sign and structure found that there was not any existing use rights for the existing advertising sign and structure: Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 1081. The Council submits this finding is binding on the parties to that appeal, Save the Robots and the Council, so that Save the Robots is estopped from raising again in this appeal the issue of existing use.
In summary, the issues on the appeal are as follows:
(a) Is the advertisement unsightly, objectionable or injurious to the amenity of Oxford Street? (the adverse impact on amenity issue); (b) Is the advertisement:
(i) displayed contrary to a provision made by or under the EPA Act, or (ii) associated with a structure erected contrary to a provision made by or under the EPA Act? (the unlawful advertising sign and structure issue);
(c) If the answer to issue (b) is yes, is Save the Robots estopped from asserting that the use of the structure on the roof of the building for the purpose of advertising is an existing use? (the estoppel issue); (d) If the answer to (c) is no, is the use of the structure on the roof of the building for the purpose of advertising an existing use? (the existing use issue); and (e) If the answer to issue (a) or issue (b) is yes, and the answer to issue (c) and issue (d) is no, should the Court exercise its discretion not to order the removal of the advertising sign and associated structure at all or only after a considerable period of time? (the discretion issue).
(a) the adverse impact on amenity issue: yes (b) the unlawful advertising sign and structure issue: yes (c) the estoppel issue: no (d) the existing use issue: no (e) the discretion issue: no
The first circumstance in item 6 of the table on which the Council relied for ordering the removal of the advertising sign and associated structure is that the sign and associated structure are unsightly, objectionable or injurious to the amenity of Oxford Street, which is a public place at or near where the advertisement is displayed. This circumstance requires an understanding of what is the amenity of the neighbourhood in which the relevant public place is located and the impact that the advertisement and associated structure has on that amenity.
In Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152 at 156, Sugerman J described the “amenity” of a neighbourhood as being “the quality which it has of being pleasant or agreeable”. A provision of an environmental planning instrument that uses the term “amenity” ordinarily uses it:
“in a relative rather than in an absolute sense – that is to say not as referring to conformity to some generally accepted standard of amenity but as meaning the pleasantness or agreeableness of the neighbourhood as it in fact is, in pursuance of an intention that it should not become less pleasant or agreeable”: at 156.
“The concept of the amenity of a neighbourhood is wide and flexible. Some aspects of amenity are practical and tangible. Examples include traffic generation, noise, nuisance, appearance, and the way of life in the neighbourhood. Other aspects of amenity are intangible and subjective. They include the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood: Broad v Brisbane City Council [1986] 2 Qd R 317 at 320; (1986) 59 LGRA 296 at 299. Amenity may embrace the effect of a place on the senses and the resident’s perception of the neighbourhood. Knowing the use to which a particular site is, or may be, put may affect a resident’s perception of amenity: Broad v Brisbane City Council at 326; at 305; Novak v Woodville City Corporation (1990) 70 LGRA 233 at 236; Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10 at [190].
The reasonable expectations of residents of the neighbourhood are informed by the current planning controls in the planning scheme: Gorman v Brisbane City Council 73 [2004] QPELR 29 at 32 [18]; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 324 at 348-349 [40]; Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15 at [159], [160]. Residents must be taken to expect that land in the locality will be put to one of the uses to which that land may be put as of right and may be put to one of the uses permitted with the consent of the local authority under the planning scheme: Bell v Noosa Shire Council [1983] QPLR 311 at 313; Crane v Brisbane City Council [2004] QPELR 1 at 7 [48].”
The last-mentioned point is important in this case. The amenity of the neighbourhood and the reasonable expectations of its inhabitants are informed by the applicable environmental planning instruments and the uses permitted or prohibited under the current planning controls.
In the present case, foremost amongst the applicable environmental planning instruments is the Industry SEPP. Chapter 3 of the Industry SEPP regulates advertising and signage. The aims of the Chapter include “(a) to ensure that signage (including advertising) – (i) is compatible with the desired amenity and visual character of an area” (s 3.1(1)(a)). Section 3.8(1) provides that, despite the provisions of any other environmental planning instrument, the display of an advertisement is prohibited on land that, under an environmental planning instrument, is within specified zones or descriptions, including a “heritage area (excluding railway stations”. The site is described under Sydney Local Environmental Plan 2012 (SLEP) as being within the Oxford Street Heritage Conservation Area C17 (Oxford Street HCA). This description of the site as being within the Oxford Street HCA suffices for the purpose of s 3.8(1) of the Industry SEPP to cause the site to be within a heritage area.
This prohibition on the display of an advertisement on land in a heritage area, the Oxford Street HCA, shapes the amenity of land in the area and the reasonable expectations of its inhabitants as to the uses permitted or prohibited in that area. Prima facie, the carrying out of a use that is prohibited in the area, being the display of an advertisement, will be injurious to the amenity of land in the area.
Another environmental planning instrument that shapes the amenity of the neighbourhood in which the building in this case is located is SLEP. Heritage conservation areas are shown on the Heritage Map as well as being described in Schedule 5 to SLEP. One of the listed heritage conservation areas is the Oxford Street HCA. Each heritage conservation area has a statement of significance which justifies the listing of the heritage conservation area. The statement of significance for the Oxford Street HCA does not describe the display of advertisements on the rooftops of buildings as contributing to the heritage significance of the Oxford Street HCA. There are in fact only three roof-top advertisements and associated structures remaining along the relevant length of Oxford Street in the heritage conservation area, including the advertisement and associated structure on the building in this case, but none of these advertisements and associated structures is referred to in the statement of significance for the Oxford Street HCA.
Clause 5.10 of SLEP deals with the heritage conservation. One of the objectives of cl 5.10 is to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views (cl 5.10(1)(b)). Clause 5.10(2)(e) of SLEP requires development consent to erect a building on land that is within a heritage conservation area. A building includes a structure, such as an advertising sign and structure. The permissibility with consent of the erection and subsequent use of a building in a heritage conservation area under the SLEP is, of course, overridden by the prohibition on the display of an advertisement in cl 3.8(1) of the Industry SEPP.
“The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.”
“(5) The consent authority may, before granting consent to any development—
(a) on land on which a heritage item is located, or
(b) on land that is within a heritage conservation area, or
(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),
require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.”
These provisions emphasise the importance of considering the effect that the continued use of the existing advertising sign and associated structure for the purpose of advertising has on the heritage significance of the Oxford Street HCA. As I have earlier noted, the statement of significance for the Oxford Street HCA does not identify the display of advertisements as contributing to the heritage significance of this heritage conservation area.
Sydney Development Control Plan 2012 (SDCP) provides guidance to persons carrying out development and to the consent authority for that development on giving effect to the aims of SLEP, facilitating development that is permissible under SLEP and achieving the objectives of land zones under SLEP: see s 3.42(1) of the EPA Act.
SDCP divides the City of Sydney into localities and provides locality statements. The site is in the Oxford Street, Darlinghurst locality (s 2.4.10). Two of the principles for this locality are:
“(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.”
None of the principles for the Oxford Street, Darlinghurst locality refers to advertising signs and associated structures on the roofs of buildings as being part of the desired character of the locality.
Section 3.9 of SDCP contains detailed provisions with respect to heritage. The objectives of s 3.9 include to ensure that heritage significance is considered for development within heritage conservation areas and to enhance the character and heritage significance of heritage conservation areas.
Section 3.9.6 deals with heritage conservation areas. Buildings within heritage conservation areas are identified on the Building contributions map as being contributory, neutral or detracting to the character and heritage significance of the heritage conservation area. The building on this site is identified as being a contributory building, having been designed by a prominent architect Ernest Lindsay Thompson. One of the controls on development in a heritage conservation area in s 3.9.6 is:
“(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:
(a) topography and landscape;
(b) views to and from the site;
(c) significant subdivision patterns and layout, and front and side setbacks;
(d) the type, siting, form, height, bulk, roofscape, scale, materials and details of adjoining or nearby contributory buildings;
(e) the interface between the public domain and building alignments and property boundaries; and
(f) colour schemes that have a hue and tonal relationship with traditional colour schemes.”
Section 3.9.7 deals with contributory buildings, which are “buildings that make an important and significant contribution to the character and significance of the heritage conservation area”. Contributory buildings “have a reasonable to high degree of integrity and date from a key development period of significance of the heritage conservation area”.
As noted earlier, the building on the roof of which the advertising sign and associated structure are erected has been identified as a contributory building. However, the advertising sign and associated structure have not been identified as having any heritage significance in themselves or as being an integral part of the contributory building that contributes to the character and significance of the Oxford Street HCA.
Amongst the controls for contributory buildings specified in s. 3.9.7 are:
“(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:
(c) remove unsympathetic alterations and additions, including inappropriate building elements.”
Section 3.16 of SDCP deals with signs and advertisements. The provisions of s 3.16 are intended to “encourage signs and advertisements (signage) that contribute positively to the public domain by achieving high design quality”. Section 3.16.7 deals with advertising structures and third party advertisements. Section 3.16.7.1(1) provides that: “Generally, new advertising signs and third party advertisements are not permitted.” None of the exceptional circumstances where advertising signs and third party advertisements are permitted are applicable to the advertising sign and associated structure on the roof of the building on this site.
Section 3.16.11 deals with signage related to heritage items and heritage conservation areas. While s 3.16.11(2) provides that “[e]xisting signage that has heritage value is to be retained and conserved in its original location”, the existing signage on this building has not been identified as having heritage value. Section 3.16.11(3) provides in part that “[n]ew 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.”
Section 3.16.12 deals with areas identified as signage precincts on the Signage Precincts Map. The site is identified as being within the Mixed Use Village Main Street signage precinct (s 3.16.12.15). Two of the controls for signage in this signage precinct are:
“(1) Signage is to respond to the role of these precincts as village main streets with mixed of [stet] local retail, commercial and residential land uses, as outlined [in] the locality statements in section 2 of this DCP and any relevant heritage statement of significance.
(2) Signage is not to be located above a ground floor awning, or greater than 3.5m above ground level (existing) where no awning exists.”
The existing roof-top advertising sign and associated structure do not comply with these controls in s 3.16 of SDCP.
Apart from specifying the controls for development, including advertising signs and associated structures, in heritage conservation areas, SLEP also designates the site as being within the Oxford Street Cultural and Creative Precinct (cl 6.60D). One of the objectives of cl 6.60D is “to minimise adverse impacts on the amenity of the surrounding area” (cl 6.60D(1)(c)). Clause 6.60D(3) specifies height and floor space controls for a building on land within the precinct.
Section 5.11 of SDCP specifies detailed provisions for the Oxford Street Cultural and Creative Precinct. The locality statement for the precinct in s 5.11.1 specifies outcomes for the precinct, including that: “Development will conserve the heritage significance and character of the existing built form and streetscape and at a minimum retain the existing quantum of cultural and creative floor space.” Development is required to achieve and satisfy the outcomes expressed in the locality statement as well as the supporting principles specified in s 5.11.1. Two of these supporting principles are:
“(6) Ensure that the retention and conservation of significant heritage fabric (including significant interiors), and structural stability of buildings, determines the extent of alterations and additions to heritage items and contributory buildings.
(8) Ensure that vertical additions to certain heritage items and contributory buildings:
…
(c) respond to and complement the character of heritage items, contributory buildings and buildings constructed as a group”.
The existing roof-top advertising sign and associated structure are vertical additions that do not respond to, or complement the character of, the contributory building on which they are erected, but instead detract from the character of that building.
Section 5.11.3 contains the building design controls for Taylor Square and other public places on Oxford Street. Taylor Square is noted as
“an important public space, and is historically, visually and physically connected to the Darlinghurst Courthouse 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” (s 5.11.3).
“(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.”
The existing roof-top advertising sign and associated structure are highly visible in, but do not reinforce, the view corridor along Oxford Street from Hyde Park.
Section 5.11.4 deals with heritage conservation in the Oxford Street Cultural and Creative Precinct. One of the objectives is to ensure that the heritage significance of contributory buildings in the Oxford Street HCA “is conserved and enhanced by retaining significant elements of the building and restoring or reconstructing altered or missing fabric” (Objective (b)). One of the heritage conservation provisions in s 5.11.4.1 is that:
“(5) Vertical additions to contributory buildings are not to visually dominate or compete with the original building form. They are to be designed to present as a recessive, light-weight addition, including roof form, which is set back in accordance with the provisions in Section 5.11.5.3, except where a design outcome of the highest standard can be achieved in accordance with provision 5.11.5.3(3) in this DCP.”
Again, the existing roof-top advertising sign and associated structure are vertical additions to the contributory building on which they are erected and visually dominate and compete with the original building form of that building. The advertising sign and associated structure do not present as recessive, light-weight additions on the roof of the building and are not set/back from the parapet wall of the building.
Section 5.11.5 of the SDCP requires consideration of the built form and design of development in the precinct. Section 5.11.5 requires:
“Careful consideration of the impact of development on the unique built form character of Oxford Street must be demonstrated in all proposals for redevelopment. Oxford Street bisects the predominant street grid and features a series of unusually proportioned and shaped blocks, with many narrow and deep lots, and some [of] which have been consolidated. The buildings fronting Oxford Street have a high quality and continuous fine grain built form with a strong heritage character which flanks the street and creates a clearly framed view corridor down the street towards Hyde Park and the city skyline beyond.
Additions to these buildings are to be predominantly lightweight, simply designed and recessive secondary forms except where they are of exceptional design quality and achieve a strong and complementary relationship with the existing building.”
Contributing to the unique built form character of Oxford Street are the building alignment, setbacks and street frontage heights along Oxford Street. Section 5.11.5.3 provides in part that: “Upper storey additions should be recessive, secondary forms which protect the heritage character of the precinct and reinforce the vista from Taylor Square to Hyde Park.” Provision (1) requires that above the street wall, additional storeys on contributory buildings are to be set back a minimum of 3 metres. Provision (4) requires development “to reinforce the significant view corridor along Oxford Street and views to buildings framing street intersections and define corner sites through appropriate massing and façade design.”
The existing roof-top advertising sign and associated structure do not meet these controls. They are upper storey additions that are not recessive secondary forms which protect the heritage character of the precinct and that intrude into, rather than reinforce, the significant view corridor along Oxford Street from Hyde Park to Taylor Square.
These controls of SLEP and SDCP for the Oxford Street HCA, Oxford Street Darlinghurst locality and Oxford Street Cultural and Creative Precinct shape the amenity of the area, locality and precinct in which the building, on the roof of which the advertising sign and associated structure are erected, is located. None of the controls for the area, locality or precinct identify roof-top advertising signs and associated structures as being part of the desired character. The existing advertising sign and associated structure are incompatible with these controls for the area, locality and precinct.
The heritage experts called by the parties differed as to the impact that the advertising sign and associated structure have on the heritage significance of the Oxford Street HCA. Both Mr Poulton (for the Council) and Professor Mackay (for Save the Robots) agreed that the advertising structure on which the advertising sign is displayed has a negative impact on the contributory building which supports it because of its bulky rectilinear form. They also agreed that “[p]revious iterations of the Sign, which were supported by a less bulky structure, did not have this negative effect.” The experts agreed that: “The current structure is a detracting element on top of a contributory building within the Oxford Street Heritage Conservation Area.”
Mr Poulton observed that:
“The Structure on top of the building sits crudely above the parapet, and reads as a dominant and intrusive box which does not integrate well with the rest of the architecture and design of the building. It is unsympathetic to the building.”
Professor Mackay agreed that “the detracting supporting structure beneath [the sign] should ideally be modified to lessen its visual impact on the contributory building below.”
The heritage experts disagreed, however, on the heritage value and impact of the advertising sign itself. Professor Mackay opined that the sign itself, without the advertising structure on which the sign is displayed, had heritage value, “as part of a long tradition of roof top signs at this location and as an element that contributes to the visual character of Taylor Square and thereby to the Oxford Street Heritage Conservation Area.” It was, therefore, not the actual advertising sign now displayed on the roof that had heritage value, but rather the use of the roof of the building for the purpose of advertising over a long time that had heritage value. Professor Mackay agreed that there was “absolutely nothing” about the fabric of the current sign that could be said to have heritage value. Professor Mackay considered that because the sign has heritage value, it should be retained. Conversely, Professor Mackay considered that removing the advertising sign would adversely affect the visual character of Taylor Square and thereby have a negative effect on the Oxford Street HCA.
Professor Mackay concluded that “the Advertisement is not unsightly, nor objectionable nor injurious to the amenity of Oxford Street, and the Sign makes a positive contribution to Oxford Street and has heritage value.”
Mr Poulton noted that neither the advertising sign nor associated structure has been recognised as having heritage significance in the heritage inventory report for the Oxford Street HCA or in the Oxford Street, Darlinghurst locality statement. Mr Poulton’s own assessment was that the advertising sign and associated structure do not contribute to the overall significance of the contributory building, but instead detract from the character and significance of the building and of the heritage conservation area as a whole. Mr Poulton did not accept that the advertising sign had heritage value. Mr Poulton opined:
“The billboard Structure and Sign that exists today is dominant, intrusive and unsympathetic to the predominant character and recognised significance of the conservation area. Taylor Square, towards the northern end of the conservation area, where the subject building is located, is lined by buildings that are either heritage items or contributory buildings to the conservation area. The Structure and Sign does [sic] not make a positive contribution to the character of Taylor Square, and lack the aesthetic appeal and landmark values that the previous Neon signs had. The presentation of the subject building would be greatly enhanced and improved if the Structure and Sign were removed (as illustrated in Figure 5) and would be in keeping with the intent of the objectives of 5.10(1)(a) and (b) of the SLEP and sections 3.9.6 and 3.9.7 of the SDCP.”
“As addressed in my previous comments, particularly under Contention 3, the existing Structure and Sign is considered to detract from the character of the subject contributory building and predominant character of the conservation area. They do not complement the subject building nor enhance its character and features, but dominates it. This is not in keeping with the intent of the desired future character outlined in the Locality Statements for Oxford Street Darlinghurst (Section 2.4.10) and the Oxford Street Cultural and Creative Precinct (Section 5.11.1). For the above reasons, retention of the Structure and Sign on the subject building is considered to have an adverse impact on the amenity of the Conservation Area, the locality and on the Oxford Street Cultural and Creative Precinct.”
“given the reasons previously outlined, particularly in my response to Contention 3, in my opinion the Structure and Sign do not make a positive contribution to Oxford Street Conservation Area and do not have heritage value. They are intrusive, detract from the character and significance of the conservation area, and therefore Clause 3.16.11(2) does not apply. For these reasons the Advertisement is considered to be unsightly, objectionable and injurious to the amenity of Oxford Street. Its retention is also not considered to be [in] keeping with the intent of the desired future character outlined in the Locality Statements for Oxford Street Darlinghurst (Section 2.4.10) and the Oxford Street Cultural and Creative Precinct (Section 5.11.1).”
The town planning experts called by the parties, Mr Li (for the Council) and Mr Strudwick (for Save the Robots) also differed in their assessment of the application of the relevant planning controls.
Mr Li assessed the advertising sign and associated structure by reference to the planning controls in SLEP and SDCP for the Oxford Street, Darlinghurst locality and the Oxford Street Cultural and Creative Precinct. None of these controls identifies roof-top advertising as forming part of the desired future character.
Mr Li described the size and monolithic nature of the advertising sign and associated structure as contributing to its significant visual dominance. He stated that: “The monolithic box is larger and out of scale compared to other elements that one would experience along Oxford Street and Taylor Square, including the typically fine-grain subdivision pattern and the resultant building width, the fine-grain shopfronts, and the well-articulated upper-level building facades etc”.
Mr Li accepted that advertising signs, by their nature, are designed to stand out and draw people’s attention, yet noted that:
“the Advertisement’s corner location, alignment with the view corridor along Oxford Street to/from Hyde Park, and its lack of setback from the existing corner building’s parapet also means that the Advertisement and its supporting structure are even more readily visible compared to the other 2 rooftop advertisements.”
Mr Li noted that upper storey signage is not an important feature for Taylor Square or Oxford Street. Mr Li noted that the three existing roof-top advertising signs are the only such signs along Oxford Street and considered them to be anomalies instead of defining elements of Oxford Street or Taylor Square.
Mr Li observed that the advertising sign, “becomes more visually dominant in the nighttime, when it is illuminated against the dark sky and the generally un-illuminated upper storey facades of surrounding buildings.”
Mr Li considered that the advertising sign and associated structure do not define or contribute to the character of the locality or precinct. The advertising sign has no relationship with the cultural and creative activities in the Oxford Street Cultural and Creative Precinct. Although the content of the advertisement displayed continuously changes, the content does not relate to the cultural and creative activities carried out in the precinct.
Mr Strudwick, on the other hand, did not assess the existing advertising sign and associated structure by reference to the planning controls in SLEP or SDCP. Mr Strudwick believed that those controls are relevant only for assessing a development application seeking consent to carry out new development, not for assessing the impact of existing development. Mr Strudwick’s opinion as to the acceptability in planning terms of retaining the existing advertising sign and associated structure was not based on the planning controls in SLEP or SDCP, but rather on his own assessment of the character of the locality and the impact on that character.
Mr Strudwick considered that the three existing roof-top advertising signs are part of the character of Oxford Street and Taylor Square, which comprises of a variety of building uses, a continuous awning pattern, a number of heritage items and a mix of building styles, heights, widths, colours and materials. In this context, and where a roof-top sign has existed on the building (in a variety of forms) for a considerable time, Mr Strudwick considered that the advertisement positively contributes to the visual character, vibrancy and identity of Taylor Square.
The visual impact experts called by the parties, Ms Pressick (for the Council) and Ms Maze-Riley (for Save the Robots), also differed as to their assessment of the visual impact of the advertising sign and associated structure.
Ms Pressick considered that the advertising sign and associated structure visually dominate the streetscape views. As to form, Ms Pressick stated:
“The large and boxy sign structure sits directly above the parapet, at the face of the heritage building. The sign structure, while neat, is visually incongruent with the form of the base building and is highly visible. For these reasons, the sign has a material visual impact.”
“The rooftop billboard sign is large and designed to be a dominant feature of the skyline. At 13.4m wide by 4.3m high (above the building parapet) by 3.6m deep, the scale of the sign does visually dominate the streetscape and skyline when viewed from the agreed locations. While there are flagpoles and small street banners, street trees and shops within the streetscape, the large scale of the third-party advertising sign is designed to draw attention to itself, thus having a visually dominating effect.”
“Due to the crank in Oxford’s Street’s alignment, the rooftop billboard sign terminates the view along Oxford Street when travelling from Hyde Park to Taylor Square, gradually revealing itself as the viewer travels southeast. By the time one reaches the intersection with Riley Street, pedestrians, people in vehicles, people waiting at the new bus stops and cyclists have a full view of the sign. It is precisely because of the very high visibility of this location that the sign has been located there. This is accentuated when illuminated at nighttime.”
“In addition to the form, scale and location of the sign having a visually dominant impact on the streetscape character, the content of the sign is also designed to be attention grabbing and thus have a visual impact on the streetscape of Oxford Street and Taylor Square, through which Oxford Street traverses.”
Ms Pressick considered the advertising sign does not contribute to vibrancy, as “the existing sign is not aligned with the future envisaged character of the locality and detracts from the vision of a creative and cultural precinct.” Ms Pressick noted that “above awning signage is not part of the future character.” The site is located within the Mixed Use Village Main Street signage precinct (s 3.16.12.15 of SDCP), where signage is not to be located above a ground floor awning.
Ms Pressick disagreed with Ms Maze-Riley’s opinion that the advertising sign is a positive feature within the public domain of Taylor Square that creates visual interest and vibrancy. Ms Pressick stated that the planning controls for the locality “are not trying to create a ‘Times Square’ atmosphere at Taylor Square with signage as a central feature.” While a form of advertising sign might have been on the roof of the building for a long time, “the existing contemporary sign is not a positive feature of the public space, and its removal will create an opportunity for the heritage building at 191-195 Oxford Street to become the terminating feature of Oxford Street.”
Ms Pressick concluded:
“It is worth noting that the advertising sign has been located atop this building because it occupies a highly visible location…The intent of third-party advertising is to maximise impact on the public domain. While this serves the interests of advertisers, it comes at the expense of the quality of the public realm which is degraded by the visual dominance of such a sign.
The sign is no exception. It demands attention through its prominent location, bold graphic content and nighttime illumination. In a precinct that is characterised by creative and cultural uses within a heritage setting, a sign of this scale and dominance is unsightly, objectionable and detrimental to the amenity of Oxford Street and Taylor Square, through which Oxford Street passes.”
Ms Maze-Riley, although accepting that the advertising sign is visually prominent from many viewpoints in the locality, including in the view corridor along Oxford Street, did not agree that “the amenity of Oxford Street or the Darlinghurst locality is adversely impacted by the existing sign, or by the potential visibility of the sign if it remains in situ.”
Ms Maze-Riley noted that the character of Taylor Square
“is derived from a combination of elements, including open spaces, contemporary bult forms, heritage buildings and facades, vehicle traffic, human movement, multiple signs (under awning) and large format billboards, light poles, flag poles, lawn areas and visually significant mature canopy trees. The juxtaposition in form, scale, height and colour of these elements create visual interest. The compositional variety of existing views across the Square contribute to a unique ‘sense of place’.”
“The existing signage is one of many visual elements that contribute to the diverse visual context of Oxford Street and user experience of a major arterial corridor and busy public place in a global city. My observations are that large format advertisements are widely anticipated and indeed contemplated by road and public domain users in such locations. Its contribution is not significant or adverse to an extent that it is incompatible with Oxford Street’s role as a rich and diverse neighbourhood.”
I accept the evidence of Mr Poulton, Mr Li and Ms Pressick, in preference to the evidence of Professor Mackay, Mr Strudwick and Ms Maze-Riley, that the existing roof-top advertising sign and structure do not accord with the heritage and planning controls in SLEP and SDCP for the Oxford Street HCA, the Oxford Street, Darlinghurst locality and the Oxford Street Cultural and Creative Precinct, and are otherwise unsightly, objectionable or injurious to the amenity of the public place near where the advertising sign and associated structure are displayed.
I have explained earlier, whilst dealing with the various heritage and planning controls in SLEP and SDCP, some of the respects in which the advertising sign and associated structure do not satisfy those controls. This non-satisfaction of the heritage and planning controls is important because the controls shape the amenity of the applicable Oxford Street HCA, Oxford Street, Darlinghurst locality and Oxford Street Cultural and Creative Precinct. Non-satisfaction of the controls leads to adverse impacts on the amenity of that area, locality and precinct. Those adverse impacts include being unsightly, objectionable or injurious to the amenity.
The advertisement is displayed on the rooftop of this building at Taylor Square for a reason: it is highly visible. The advertisement can be seen from many viewpoints throughout the visual catchment, and is especially prominent in the significant view corridor along Oxford Street from Hyde Park to Taylor Square and in the public places in and around Taylor Square. Literally, the sign face is “in your face”. This visual prominence explains why advertisements displayed on this building command such high rents.
Nothing about the existing roof-top advertising sign and associated structure is recessive. The combined size and bulk of the advertising sign and box-like associated structure make them dominant and intrusive elements in the streetscape in the daytime. The size and illumination of the advertising sign make it even more visually dominant in the nighttime.
The size, bulk and monolithic nature of the advertising sign and associated structure negatively impact on the contributory building on the roof of which the advertising sign and associated structure are erected. The advertising sign and associated structure are an integral whole and their impact on the contributory building cannot be assessed separately. The advertising sign and associated structure overbear and detract from the contributory building.
The fact that some form of advertisement might have been displayed on the rooftop of the building for over one hundred years is not relevant to assessing the impact of the current advertising sign and associated structure. The Order requires the removal of the current advertising sign and associated structure as being unsightly, objectionable or injurious to the amenity of the public place near where the advertising sign and associated structure are displayed. It is the impact of the current advertising sign and associated structure that needs to be assessed, not the impact of any other advertisement that might have been displayed on the building in the last century. This current assessment cannot be informed by how people in the past might have assessed past advertising signs and associated structures.
The second and third circumstances in which an order under item 6 of the table may be given concern the unlawfulness of the advertisement and any associated structure.
In the present case, the current advertisement is being displayed on the roof of the building contrary to s 3.8(1) of the Industry SEPP. That section prohibits the display of an advertisement on land within a heritage area. The building on the roof of which the advertisement is being displayed is located within a heritage area, being the Oxford Street HCA under SLEP. This engages the second circumstance in item 6 of the table.
The advertisement is displayed on a structure erected on the roof of the building that no longer is lawful. The current advertisement and associated structure are the subject of a development consent granted by the Council on 10 February 1999 (the 1999 consent). The 1999 consent granted consent to the “replacement of advertisement and retention of sign face and structure for one year from 10/02/99” subject to conditions. One of the conditions, condition (4), required:
“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.”
“That the Council as the responsible authority grants its consent to the development application submitted by Tollest Pty Ltd for replacement of advertisement and retention of sign face and structure for a period of two years from the date of the original date of this consent ie until 10 February 2001, subject to the conditions as attached to Council’s consent dated 10 February 1999.”
The approved development was carried out in accordance with the 1999 consent, as modified. In so doing, the holder of the 1999 consent took advantage of the benefit of the consent to display the advertisement on the advertising structure but was bound by the terms of the consent that the consent expired on 10 February 2001 and that the advertising sign and associated structures be fully removed from the roof immediately upon the expiry of the consent. This has not occurred. The advertising sign and associated structures remain to this day.
In these circumstances, the third circumstance in item 6 of the table is engaged. The current advertisement is associated with a structure that remains erected, instead of being fully removed, contrary to condition 4 of the 1999 consent. That involves a breach of s 4.2(1)(b) of the EPA Act, which requires a person to carry out development in accordance with a development consent.
Save the Robots did not contest that the existing advertisement is displayed contrary to s 3.8(1) of the Industry SEPP and is associated with a structure that remains erected rather than being removed contrary to condition 4 of the 1999 consent. Save the Robots contends, however, that the continued use of the advertisement and associated structure is nevertheless lawful as an existing use. Section 4.66(1) provides that nothing in the EPA Act or an environmental planning instrument prevents the continuance of an existing use.
The Council, however, contends that Save the Robots is estopped from raising this argument that the use of the advertising sign and associated structure is an existing use. The Council submits that Save the Robots raised that argument in the appeal before the Commissioner against the Council’s refusal to grant consent to a new digital advertising sign to replace the existing advertising sign and associated structure. The Commissioner rejected Save the Robots’ argument, finding that “there are no existing use rights applicable to the existing billboard”: at [84].
The Council submits that the issue of existing use was necessary to be resolved as a step in the Commissioner determining the ultimate issue of whether to grant or refuse consent to the development application for the new digital advertising sign. This was because the Commissioner, exercising the functions of the consent authority, could only grant consent to the development application if the use of the existing advertising sign and associated structure, which were proposed to be rebuilt as a new digital advertising sign and associated structure, was an existing use. Otherwise, the proposed rebuilding of the existing advertising sign and associated structure would be prohibited.
The Council submits that in this circumstance an issue estoppel arises “to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment”: Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [22]; Blair v Curren (1939) 62 CLR 464 at 510, 531-533.
The Council submits that an issue estoppel can arise in administrative appeals, and not just judicial proceedings, citing T**he Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 and the obiter remarks of Handley JA in Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278 at [6]. In the latter case, a judge of this Court had determined, as a preliminary issue in an appeal against the local council’s refusal of consent for development of land in Pittwater, that there were existing use rights for the property. On that basis, a Commissioner of the Court went on to decide the remaining issues in the appeal, determining on the merits to refuse consent to the development application. The Council sought leave to appeal against the judge’s decision that there were existing use rights. The Court of Appeal dismissed the summons for leave to appeal as incompetent. The final order in the proceedings was in the Council’s favour, so that the Council had no right of appeal from the final order. Although the decision on the preliminary issue was unfavourable to the Council, which was an interlocutory order, the Court of Appeal held that the Council had no right of appeal against that interlocutory order where the final decision had been in its favour.
“At that stage the interlocutory order created issue estoppels for the purpose of the subject proceedings but not necessarily for any other purpose. Whether the interlocutory decision would have that result would depend on the final decision in the proceedings. If the Class 1 appeal had succeeded the decision on the preliminary issue would have been fundamental to that decision and part of its legal justification or foundation, to use the language of Dixon J in Blair v Curran (1939) 62 CLR 464 at 533.”
The Council submitted that this statement supports the proposition that an issue estoppel can arise from a decision as to existing use in Class 1 merit review proceedings.
I reject the Council’s argument that Save the Robots is estopped from raising on this appeal the issue of whether the use of the advertising sign and associated structure on the roof of the building is an existing use. The central reason is that the Commissioner’s finding in the appeal against the Council’s refusal to grant consent to the development application for the new digital advertising sign, that “there are no existing use rights applicable to the existing billboard”, was neither in the exercise of judicial power nor a judicial determination rendered in other adversarial proceedings: see Tomlinson v Ramsey Food Processing Pty Ltd at [20], [21].
Of course, the Commissioner was exercising the Court’s jurisdiction in the particular matter (see s 30(1) of the Land and Environment Court Act 1979 (NSW) (Court Act)), so that the Commissioner’s decision was the decision of the Court. But the Court’s jurisdiction that the Commissioner was exercising was to hear and dispose of the appeal under s 8.7(1) of the EPA Act. That appeal is by an applicant for development consent who is dissatisfied with the determination of the application by the consent authority. The application for development consent is made under s 4.12(1) of the EPA Act and the determination of the application by the consent authority is made under s 4.16(1) of the EPA Act. The Court in determining an appeal under s 8.7(1) of the EPA Act exercises all of the functions which the consent authority had in determining the development application, including the function under s 4.16(1) of the EPA Act. These functions are administrative functions, not judicial functions.
I explained this distinction between administrative functions and judicial functions in Ku-ring-gai Council v Bunnings Properties Pty Ltd (2018) 236 LGERA 35; [2019] NSWCA 28 at [177]-[183]. The passage is worth quoting in full as it demonstrates that the Commissioner, in making a finding of fact regarding any existing use of the building in determining the development application on the appeal, was simply exercising the same administrative function that the Council, as the consent authority, had previously exercised in its determination of the development application. This is the passage:
“177. The jurisdiction which the Court exercises on hearing and disposing of an appeal under s 97 now s 8.7 of the EPA Act is the original jurisdiction under s 4.16 of the EPA Act to determine the development application the subject of the appeal by granting or refusing consent to the application. The function of determining a development application is by nature administrative. At first instance, the function is performed by an administrative authority, one of the bodies designated as the consent authority for development of the kind proposed in the development application. The function of determining a development application involves the making of a discretionary administrative decision. The consideration and determination of a development application under s 4.15 and s 4.16 of the EPA Act respectively involve evaluation, weighing and balancing of competing considerations, including the benefits of the proposed development, the likely impacts of the proposed development in the locality and on the environment, and the public interest. The decision maker has a discretion as to whether to grant or to refuse consent to the development application.
178. The making of the discretionary administrative decision is to be distinguished from the making of a judicial decision. As Brennan J observed in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643; [1979] AATA 179:
‘In this respect, the making of a discretionary administrative decision is to be distinguished from the making of a curial decision. Generally speaking, a discretionary administrative decision creates a right in or imposes a liability on an individual; a curial decision declares and enforces a right or liability antecedently created or imposed. The distinction is too simply stated, but it suffices to show that the adjudication of rights and liabilities by reference to governing principles of law is a different function from the function of deciding what those rights or liabilities should be.’
- The determination of a development application by the Court on the appeal does not involve adjudication of a dispute about the existing rights and obligations of the parties to the appeal (the applicant for consent and the consent authority). Instead, the Court’s function on the appeal is to decide whether the applicant should be given the right, in the form of a development consent, to carry out development on land. The object of the Court’s investigation and determination of the development application the subject of the appeal, if the Court decides to grant consent to the application, is to create a new set of rights and obligations. These rights and obligations arise from the Court’s order to grant consent, being rights and obligations which did not exist antecedently and independently of the making of the order: see Precision Data Holdings Ltd v Wills at 190 and also Luton v Lessels at [22], [67] and [76]. The Court’s order to grant consent to a development application entitles the applicant for consent to carry out development in accordance with the consent. The consent lifts the statutory prohibition on carrying out development without consent (in s 4.2(1) of the EPA Act).
- The fact that the exercise of the function of determining a development application involves application of legal criteria (such as those in the EPA Act and the environmental planning instruments made under the EPA Act) to the facts and circumstances of the particular development application does not mean that what is involved is an exercise of judicial power. Although the making of decisions by the application of legal criteria to facts as found is characteristic, but not distinctive, of the judicial function, it is also characteristic of many administrative functions: Luton v Lessels at [21]. The application of legal criteria to facts as found is a necessary condition for the valid exercise of the function under s 80 now s 4.16 of the EPA Act, but it is not dispositive of the exercise of the function. The decision maker still needs to make an evaluative, value judgment of how the function should be exercised. That value judgment is not dictated by the application of legal criteria to the facts as found.
- The manner in which the Court performs the function of determining the development application on the appeal has the hallmarks of an inquisitorial process, conducting an original investigation into whether the development application should be granted or not, rather than an adversarial process: Residents Against Improper Development Inc. v Chase Property Investments Pty Ltd at [219]. The Court can inform itself in any manner it thinks fit, determine its own procedure, conduct informal hearings, dispense with the rules of evidence and dispose of the proceedings expeditiously: see s 38 of the LEC Act. The Court can, instead of determining the appeal by adjudication, arrange a conciliation conference between the parties: s 34 and s 34AA of the LEC Act. The parties may reach agreement as to the terms of a decision (determining the development application by the grant or refusal of consent) that would be acceptable to the parties and, provided that decision is a decision the Court could have made in the proper exercise of its functions, the Court must dispose of the proceedings in accordance with the decision: s 34(3) of the LEC Act. Such informality and flexibility in the manner in which the Court performs the function of determining a development application is indicative that the function is administrative, not judicial.
- The fact that on an appeal under s 97 now s 8.7 of the EPA Act the function is performed by a court does not change the function from being administrative in nature to judicial. Neither the fact that the Land and Environment Court is a superior court of record nor the fact that its hearing and disposal of the appeal bear ‘the trappings of judicial decision making” converts the function being exercised by the Court on the appeal from an administrative to a judicial power: Drake v Minister for Immigration and Ethnic Affairs at 585.
- Similarly, the fact that the Court is under a duty to act judicially, including with judicial detachment and fairness, in the exercise of its jurisdiction to hear and dispose of the appeal does not indicate that the function of determining the development application the subject of the appeal is judicial rather than administrative. There is a distinction between the nature of the function and how the function is to be performed. A court or tribunal whose functions are purely administrative is under a duty to act judicially: Drake v Minister for Immigration and Ethnic Affairs at 585.”
Parts of this passage were relied on by Robson J in Benmill Pty Ltd v North Sydney Council (No 2) [2020] NSWLEC 44 in concluding that neither the ultimate conclusion of a Commissioner of the Court in determining an administrative appeal nor a finding made by the Commissioner as a step in the reasoning process was capable of grounding an issue estoppel: at [53]-[65]. Likewise, in Malass v Strathfield Municipal Council [2025] NSWLEC 44 at [42], Pain J found that an administrative appeal against a local council’s refusal of a development application, which was virtually the same as a previous development application that had been refused by the Court on appeal should not be dismissed as an abuse of process. In the course of reasoning, Pain J observed that “generally speaking, the principle of issue estoppel does not apply to a merit determination of a development application”: at [42].
Once the administrative nature of the function exercised by the Commissioner is understood, the Commissioner’s finding of fact, made in the exercise of the consent authority’s function, that the use of the advertising sign and associated structure is not an existing use, did not give rise to an issue estoppel, any more than did the Council’s earlier finding of fact that the use of the advertising sign and associated structure was not an existing use, which it made when exercising that same function to determine the development application.
Hence, Save the Robots is not estopped by the Commissioner’s decision in the appeal from raising in any future application it makes under the EPA Act or in any appeal from a decision of the consent authority with respect to that application, the issue of whether the use of the advertising sign and associated structure is an existing use. Equally, the Council is not estopped by the Commissioner’s decision in the appeal from making a finding of fact that the use of the advertising sign and associated structure is not an existing use in determining any application under the EPA Act that might be made by Save the Robots or in exercising any function under the EPA Act that the Council might have to enforce compliance with the EPA Act, such as giving a development control order under s 9.34 of the EPA Act.
This conclusion concerning the administrative functions the consent authority at first instance and the Court on appeal exercise under the EPA Act distinguishes the present case from what Gibbs J observed in T**he Administration of the Territory of Papua and New Guinea v Deara Guba at 453. This conclusion is also not contrary to Handley JA’s obiter statement in Pittwater Council v Moore Development Group Pty Ltd at [6], relied on by the Council. Handley JA simply made the point that the interlocutory order that there were existing use rights created an issue estoppel for the purpose of the proceedings in which the interlocutory order was made, so that neither party could re-litigate that issue of existing use in the hearing of the remaining issues of the proceedings. There was an issue estoppel in the proceedings. But Handley JA noted that the interlocutory order did not create an issue estoppel for any other purpose. The following comments in [6] did not affect this statement that an issue estoppel only would arise in the proceedings. The decision is not authority for the proposition that a finding of fact made in one administrative appeal that an existing use does or does not exist gives rise to an issue estoppel in any other administrative appeal.
“25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.”
(a) the existing use issue was fully litigated in the earlier appeal before the Commissioner; (b) the litigation of the existing use issue in the earlier appeal involved substantial cost to the Council; (c) the cost incurred by the Council was not the subject of a costs order, as is the practice in Class 1 appeals, notwithstanding the Council was successful on the appeal; (d) a party should not be twice vexed by the same cause: see Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699; (e) to litigate the same issue twice gives rise to the potential for conflicting judgments, which might bring the administration of justice into dispute: Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665 at [131]; [2014] NSWCA 336; (f) the parties intended to litigate and have litigated the issue for a second time on this appeal on substantially the same evidence; (g) there is a public interest in efficiency and economy in the conduct of litigation: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [34]; and (h) there is a strong public interest in the finality of decision in litigation: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34].
I reject the Council’s argument that allowing Save the Robots to raise the issue of whether the use of the advertising sign and associated structure is an existing use in its appeal against the Council’s issue of a development control order to remove the advertising sign and associated structure is an abuse of process.
First, the onus of satisfying the Court that there is an abuse of process lies on the Council as the party alleging it. The onus is “a heavy one”: see Williams v Spautz (1992) 174 CLR 509 at 529; Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 at [62].
Secondly, none of the circumstances that ordinarily characterise an abuse of process are present. In Victoria International Container Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [14], the High Court, quoting PNJ v The Queen (2009) 83 ALJR 384; [2009] HCA 6 at [3], stated:
“It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:
(a) the invoking of a court's processes for an illegitimate or collateral purpose;
(b) the use of the court's procedures would be unjustifiably oppressive to a party;
(c) or the use of the court's procedures would bring the administration of justice into disrepute.”
The Council does not contend that the first circumstance applies. Although the Council submits that it will incur cost in litigating the issue of existing use again in this appeal, it did not pitch its submission so high as to assert that the use of the Court’s procedures would be unjustifiably oppressive to the Council.
The Council’s argument, therefore, focuses on the third characteristic that Save the Robots’ use of the Court’s procedures would bring the administration of justice into disrepute. The Council contends that Save the Robots’ raising of the issue of existing use in two appeals against two decisions of the Council puts the Council to the trouble and expense of dealing with the issue twice and gives rise to the potential for conflicting judgments of the Court in deciding the issue. But this argument depends on the process by which the Court’s jurisdiction is invoked being relevantly the same. That is not the case here.
The two proceedings are entirely different. The proceeding determined by the Commissioner was an appeal under s 8.7(1) of the EPA Act against the Council’s refusal to grant consent to Save the Robots’ development application to rebuild the existing advertising sign and associated structure as a new digital advertising sign and associated structure. The present proceeding is an appeal under s 8.18(1) against the development control order given by the Council to remove the existing advertising sign and associated structure.
The issue of whether the use of the advertising sign and associated structure is an existing use necessarily arises in both proceedings, but for different purposes. In the first proceeding, the issue arose because the Commissioner, exercising the function of the consent authority under s 4.16(1) of the EPA Act to determine the development application the subject of the appeal, needed to find that the use of the existing advertising sign and associated structure was an existing use in order to have power to grant consent to the development application for the rebuilding of that advertising sign and associated structure. In the second proceeding, Save the Robots needs to establish that the use of the existing advertising sign and associated structure is an existing use in order to establish that the advertisement displayed and the structure on which it is displayed are not contrary to a provision made by or under the EPA Act.
Accordingly, the “process” of an appeal under s 8.7(1) of the EPA Act is different to the “process” of an appeal under s 8.18(1) of the EPA Act. This is an important point of distinction from cases such as Russo v Kogarah Municipal Council (1999) 105 LGERA 290; [1999] NSWCA 303 where there were three identical development applications and three appeals against the consent authority’s refusal to grant consent to the applications: see at [9] and [14]-[15]. It was the repeated use of the same process that constituted the abuse: see further, (2009) 171 LGERA 104; [2009] NSWLEC 227 at [14]-[20] and at [47].
“(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.”
Save the Robots argues that, on the evidence before the Court, the use of the advertising sign and associated structure on the roof of the building satisfies each of the three elements of this definition. As I have earlier noted when dealing with issue estoppel, Save the Robots made the same argument before the Commissioner who determined the appeal against the Council’s determination to refuse consent to the rebuilding of the advertising sign and associated structure. Save the Robots appealed against the Commissioner’s rejection of that argument under s 56A(1) of the Court Act. I heard that appeal immediately before I heard this appeal and reserved judgment. I will deliver judgment in that appeal when I deliver judgment in this appeal. For this reason, I can draw on some of my reasons for judgment in the s 56A(1) appeal regarding the existing use ground in addressing the existing use issue in this appeal. In doing so, I will not quote those reasons, but merely re-state them as is appropriate.
Application of paragraph (a) of the definition of existing use in the circumstances of this case, requires the making of findings in relation to the three elements of the definition.
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 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 instrument 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.
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: (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: at [42].
“(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.”
“(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.”
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 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.”
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 1919). Part XIIA was inserted into the LG Act 1919 by the Local Government (Town and Country Planning) Amendment Act 1945 (NSW) on 5 April 1945.
Division 7 of Pt XIIA of the LG Act 1919, 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.”
Section 342AA(2) of the LG Act 1919 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.
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 1919 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.”
“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.”
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.”
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.
Before the introduction of Pt XIIA of the LG Act 1919, the erection of a building was regulated by Pt XI of the LG Act 1919, which commenced on 1 January 1920. Section 311 of the LG Act 1919 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.
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 1919, 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.”
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.
The LG Act 1919 repealed and replaced the Local Government Act 1906 (NSW) (LG Act 1906). Section 109 of the LG Act 1906 provided that the council of an area may acquire the right to exercise various specified powers, including:
“(xxxiii) The regulation –
(a) of hoardings; and
(b) of the posting or painting of bills, signs, or advertisement.”
(xliii) The regulation of the erection of buildings as to height, design, structure, materials, building line, sanitation, the proportion of any lot which may be occupied by the building or buildings to be erected thereon; and the subdivision of land for building purposes so as to secure due ways of access to the rear as well as to the front of buildings erected, or to be erected, thereon.”
A “hoarding” was defined in s 3 to mean a “structure used for the exhibition of advertisements, and includes a sky-sign.”
Section 110 prescribed the method by which a council may acquire the functions specified in s 109. Section 187 provided for the making of ordinances which may deal with specified matters, including:
“(lvii) the fixing and collecting of fees and charges in respect of…hoardings…”
(lxix) the regulation of the erection of buildings, as to height, design, structure building materials, building line, and sanitation.”
One ordinance made under s 187 of the LG Act 1906 was Ordinance 70, Regulation of building and of subdivision of building land, which came into force on gazettal on 17 February 1909. Ordinance 70 applied to all municipalities the councils of which have acquired the power under s 109(xliii) of the LG Act 1906 to regulate the erection of buildings. The Council of the City Sydney was one such council.
Clause 2 of Ordinance 70 provided that “where any person proposes to erect any building or to alter by way of addition any building already erected,” the person had to submit to the council an application for the approval by the council of the plans and specifications of the proposed building. Clause 5 provided that the council may approve such plans and specifications. Clause 6 provided that “[n]o person shall erect any building or add to any building except in accordance with the plans and specifications approved by the Council aforesaid”.
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 requires making findings of fact regarding, first, whether the building was being used for the purpose of advertising at each of the relevant dates when those 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.
I will start with ascertaining what was the use of the building at each of the dates when the statutory provisions came into force before finding whether any such use was lawful at that time.
The existing building on the site was approved in September 1909. The building was designed by architect Ernest Lindsay Thompson, with the building application BA529/09 being approved by the City Building Surveyor in September 1909, under the then in force LG Act 1906 and s 5 of Ordinance 70 made under the LG Act 1906*.* The approved building plans, reproduced as Figure 2.10 in Mr Oultram’s report of May 2022, do not show any advertising sign or structure on the parapet or roof of the building. Construction of the building, then known as Taylor Chambers, was completed in May 1910.
Photographs of the building taken in around 1916 potentially might show some form of rectilinear sign on the roof of the building. If so, building approval under the LG Act 1906 and Ordinance 70 would have been required to alter, by way of addition, the building that had already been erected pursuant to the building approval granted in September 1909. There was no evidence that such building approval was obtained.
In any event, by the 1920s, there was a large rectilinear sign attached to the side wall of the building, which protruded above the roof. The sign displayed an advertisement for Wolfe Schnapps. The LG Act 1919 had commenced on 1 January 1920. Section 311 of the LG Act 1919 required building approval for the erection of a building, which included a structure such as the advertising sign and any associated structure. There is no evidence of a building approval having been granted for the erection of the sign and associated structure.
“That the use shall lease after a period of five years from the date of consent and the applicant is advised that a further application may be lodged before the expiration of this consent for Council’s consideration of the continuation of the proposed use.”
The development consent would therefore expire on 31 October 1996.
On 2 March 1995, Claude Neon applied for development consent to display a new Westpac sign instead of the Triple M sign. On 7 April 1995, the Council granted consent to the development application for the Westpac sign subject to conditions. One of the conditions, condition 1, required that “the consent shall cease on 31 October 1996.” This was the same date of expiry of the development consent for the Triple M sign. On 22 August 1996, the Council approved the modification of condition 1 of the development consent so that the consent would cease on 31 October 1997. On 9 September 1997, the Council approved a further modification of condition 1 of the development consent so that the consent would cease on 31 December 1998.
On 21 December 1998, Claude Neon applied for development consent for “installation of Nokia sign face on existing advertising structure.” On 10 February 1999, the Council granted consent to the development application for the Nokia sign “for a period of one year from the date of this consent”, subject to conditions. One of the conditions, condition 4 required:
“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 after the expiry of this consent.”
As the date of the consent was 10 February 1999, the consent would expire on 10 February 2000.
The approved development of the Nokia sign was carried out thereafter. Photographs in 1999 show the Nokia sign on the roof of the building.
On 30 June 1999, Claude Neon applied to modify the development consent to extend the duration of the consent. On 11 August 1999, the Council approved the modification of the development consent to extend the duration of the consent for a further year until 10 February 2001. Photographs taken in 2000 and 2001 show the Nokia sign on the roof of the building.
The development consent for the Nokia sign expired on 10 February 2001. Thereafter, the advertising sign and associated structure have remained on the roof of the building, in breach of condition 4 which required their removal.
Of importance, three weeks after the development consent for the Nokia sign expired, SEPP 64 came into force, on 16 March 2001. Section 10 of SEPP 64 prohibited the display of an advertisement in a heritage area. The building is in a heritage area. This prohibition on the display of an advertisement was continued by the Industry SEPP when it came into force on 1 March 2022. The prohibition on the display of an advertisement on the building continues to the present.
This history of the use of the building for the purpose of advertising reveals that:
(a) An advertising sign and associated structure were erected on the roof of the building, certainly in the 1920s, but possibly earlier around 1916. This was likely to be the sign displaying the Wolfe Schapps advertisement. (b) The erection of the Wolfe Schapps advertising sign and associated structure was not approved. The grant of building approval in September 1909 to the erection of the building did not include approval of any advertising sign or associated structure on the parapet or roof of the building. Separate approval was therefore needed. If the advertising sign and associated structure were erected as early as 1916, building approval was required under the LG Act 1906 and Ordinance 70. If the advertising sign and associated structure were erected in the 1920s, building approval was required under Part XI of the LG Act 1919. There is no evidence that building approval was obtained for the Wolfe Schnapps sign under either the LG Act 1906 and Ordinance 70 or the LG Act 1919. (c) A second advertising sign and associated structure were erected on the roof of the building around 1934. This was the first of the Capstan signs. (d) The erection of the first Capstan sign and associated structure was not approved. By 1934, there was a need to obtain three forms of approval: a building approval under Part IX of the LG Act 1919 to erect a building, including a structure; a permit under cl 3 of Ordinance 55 to display an advertisement; and a licence under cl 5 of Ordinance 55 to erect or use a general advertising structure. There is no evidence that any of these approvals was obtained for the Capstan advertising sign and associated structure. (e) The advertisement displayed on the Capstan advertising sign was changed over the next 30 years. The first advertisement of a man in a top hat smoking a cigarette might have been changed to the Time for Capstan advertisement around 1935. This later advertisement was photographed at various times between 1939-1961. Up until 1945, a building approval under Pt XI of the LG Act 1919 and a permit and a licence under Ordinance 55 would have been required to erect and use the advertisement and associated structure. Between 9 November 1945 and 27 June 1951, development consent would also have been required under the interim development provisions of Pt XIIA of the LG Act 1919 for the erection of the advertising sign and associated structure. From 27 June 1951, development consent would also have been required under CCPSO for the erection of the advertising sign and associated structure. There is no evidence that a building approval under Pt XI of the LG Act 1919, a development consent under Pt XIIA of the LG Act 1919 or a permit or a licence under Ordinance 55 was obtained for any of the later Capstan advertising signs or associated structures. (f) The third advertising sign erected was the Esso sign. The Council granted building approval for the works of structural support for roof sign on 28 December 1962. These works were to facilitate a change in the advertisement displayed from Capstan to Esso. (g) No development consent was granted for the erection of the Esso sign, notwithstanding that by that time Pt XIIA of the LG Act 1919 required development consent to erect a building or change the use of a building. There is no evidence that a permit under cl 3 of Ordinance 55 to display the Esso advertisement or a licence under cl 5 of Ordinance 55 to erect or use the associated advertising structure was obtained. (h) A fourth advertising sign and associated structure was erected on the roof of the building in 1968. This was the Firestone Tyres sign that replaced the Esso sign. (i) Building approval under Pt XI of the LG Act 1919 was granted to the works of structural support for roof sign, being the Firestone Tyres sign. No development consent was granted under Pt XIIA of the LG Act 1919 for the erection of the Firestone Tyres sign. There is no evidence that a permit under cl 3 of Ordinance 55 to display the Firestone Tyres advertisement or a licence under cl 5 of Ordinance 55 to erect or use the associated advertising structure was obtained. The Firestone Tyres advertisement continued to be displayed until 1979. (j) A fifth advertising sign and associated structure was erected on the roof of the building in 1979. This was the Johnnie Walker sign, which replaced the Firestone Tyres sign. Both the sign and the associated structure for the Johnnie Walker sign were different to the sign and associated structure for the Firestone Tyres sign. (k) Development consent under Pt XIIA of the LG Act 1919 and building approval under Pt XI of the LG Act 1919 were granted for the Johnnie Walker sign and associated structure on 10 October 1979. A condition of development consent limited the duration of the consent to five years after completion of necessary work. This led to the consent expiring at the end of October 1984. (l) There is no evidence, however, that a permit under cl 3 of Ordinance 55 to display the Johnnie Walker advertisement or a licence under cl 5 of Ordinance 55 to erect or use the associated advertising structure was obtained. (m) Another development consent for the Johnnie Walker advertisement and associated structure was granted by the Court on 3 February 1986 for a period of five years until 3 February 1991. By this time, the grant of development consent was under the EPA Act. (n) There is no evidence, however, that a permit under cl 3 of Ordinance 55 or a licence under cl 5 of Ordinance 55 were obtained. On the appeal, the Court set aside the Council’s notice pursuant to cl 21(2) of Ordinance 55 requiring removal of the Johnnie Walker sign. But the Court did not grant a permit to display the Johnnie Walker advertisement or a licence to erect or use the associated advertising structure under Ordinance 55. (o) Sometime in 1988, the approved Johnnie Walker sign was replaced with an unauthorised speeding sign, which was the sixth advertising sign erected on the roof of the building. That unauthorised speeding sign continued to be displayed until the Council granted development consent on 16 October 1989 to the Triple M sign. (p) The use of the building for the purpose of advertising by displaying this speeding sign was unlawful in this period. The display of the unauthorised speeding advertisement was not in accordance with the development consent for the Johnnie Walker sign and no permit or licence under Ordinance 55 had been obtained with respect to that advertisement sign or advertising structure. (q) The seventh advertising sign erected on the roof of the building was the Triple M sign. The Council granted development consent to the Triple M sign on 16 October 1989 on a condition limiting its duration until 3 February 1991. The Council granted a further development consent for the Triple M sign on 31 October 1991 on a condition limiting its duration until 31 October 1996. (r) The eighth advertising sign authorised to be erected on the roof of the building was the Westpac sign. The Council granted on 7 April 1995 development consent for the Westpac sign subject to a condition limiting its duration to 31 October 1996, the same day of expiry of the development consent for the Triple M sign. The Council subsequently modified the development consent on two occasions, the second of which extended the date of expiry of the consent until 31 December 1998. (s) The ninth advertising sign erected on the roof of the building was the Nokia sign. The Council granted development consent to the Nokia sign on 10 February 1999 for a period of one year. On 11 August 1999, the Council modified the consent so that it would not expire until 10 February 2001. (t) The continued use of the advertising sign and associated structure after 10 February 2001 was not authorised by the development consent granted on 10 February 1999 for the Nokia sign. The advertisement displayed on the sign is no longer a Nokia advertisement. Currently, it is an iPhone advertisement.
This account demonstrates that not only did the use of the building for the purpose of advertising, commence unlawfully in 1916 or the 1920s, as no building approval was obtained under either the LG Act 1906 and Ordinance 70 or the LG Act 1919 for the Wolfe Schnapps sign, but also that the use continued unlawfully with the Capstan signs from around 1934 up until 28 December 1962 when building approval was granted for the Esso sign. No building approval under Pt XI of the LG Act 1919 (from 1934), development consent under Pt XIIA of the LG Act 1919 (from 1945) or permit or licence under Ordinance 55 (from 1933) was obtained for any of the Capstan signs.
The erection and use of the Esso sign was unlawful as no development consent was granted for the Esso sign in 1962, although a building approval was granted. Similarly, the erection and use of the Firestone Tyres sign in 1968 was unlawful because only a building approval and not also a development consent was granted for the Firestone Tyres sign. Both a building approval and a development consent were granted for the Johnnie Walker sign in 1979 and another development consent was granted for the Johnnie Walker sign in 1986.
However, the use of the Capstan, Esso, Firestone Tyres and Johnnie Walker signs were also unlawful because no permits or licences under Ordinance 55 were granted for those signs.
The erection and use of the speeding sign in 1988-1989 was unlawful. This interregnum in the use of the building for the purpose of advertising by the display of the speeding advertisement was not authorised by any of the development consents or building approvals that had been granted before then.
The grant of development consent for the Triple M, Westpac and Nokia advertising signs and associated structures made lawful the erection and use of those advertising signs and associated structures, but only in accordance with the terms of those consents. Importantly, those consents were time-limited. Once the consents expired, they no longer authorised the erection and use of the approved advertisements and associated structures. The last of the development consents, the consent for the Nokia sign, expired on 10 February 2001. The use of the building for the purpose of advertising by displaying advertisements on the existing sign and associated structure on the roof of the building was unlawful thereafter.
I reject Save the Robots’ argument that, notwithstanding the lack of evidence of the grant of all of the required statutory approvals, the Court should infer that such approvals were granted, invoking the presumption of regularity. The onus of establishing that all of the required approvals were granted rests on Save the Robots, as it bears the onus of establishing that the use of the building for the purpose of advertising is an existing use as defined in s 4.65 of the EPA Act. Save the Robots can discharge that onus of showing that the Council granted the required approvals in two ways: “by providing an express consent or by showing conduct evidencing consent”: (1963) 108 CLR 568 at 576; (2012) 188 LGERA 26; [2012] NSWCA 48 at [113].
I have determined that each of the three circumstances for making an order under s 9.34(1)(a) and item 6 of the table to Part 1 of Sch 5 to the EPA Act has been established. The appropriate order would be to remove the advertising sign and associated structure on the roof of the building. Save the Robots submits, however, that the Court in its discretion should not make such an order at all or, if it does, the order should allow a considerable time before the advertising sign and associated structure should be removed.
The source of the discretion not to make an order or to make an order with a lengthy time for compliance is in both s 9.34(1) and s 8.18(4) of the EPA Act. Section 9.34(1) is the power to give a development control order. Section 9.34(1) provides that development control orders “may” be given under the EPA Act, including general orders in accordance with the table to Part 1 of Sch 5. This recognises that although satisfaction of the criteria in the table to Part 1 of Sch 5 is necessary in order for a general order to be given, there is still a discretion as to whether or not to give a general order notwithstanding that those criteria are satisfied.
Section 8.18(4) of the EPA Act is the power of the Court on an appeal by a person who has been given a development control order to make orders disposing of the appeal. One of the orders the Court may make is to revoke the development control order (s 8.18(4)(a)). This would allow the Court, in effect, to make no order for the removal of the advertising sign and associated structure. Another order the Court may make is to modify the development control order (s 8.18(4)(b)). This would allow the Court to modify the order given by the Council to extend the time for compliance.
Save the Robots submitted that six factors weigh in favour of the Court exercising its discretion to revoke the Order:
(a) the advertising sign and associated structure are not unsightly, objectionable or injurious to the public place near where they are displayed, being Taylor Square; (b) the retention of the advertising sign and associated structure is consistent with cl 3.16.11 of SDCP (“existing signage that has heritage value is to be retained and conserved in its original location”) and is in keeping with the history of Taylor Square; (c) the advertising sign forms part of the visual and cultural fabric of Taylor Square; (d) there is no adverse environmental impact as a result of the display of the advertisement; (e) the delay in the Council taking action to enforce compliance with the 1999 development consent, which expired on 10 February 2001, until 18 December 2023 when the Council issued a notice of intention to give a development control order; and (f) Save the Robots and JC Decaux will both suffer a financial loss if the Order is upheld, as both earn income from the ongoing display of the advertisement.
(a) I have found that the advertising sign and associated structure are unsightly, objectionable or injurious to the amenity of the public place near where they are displayed, being Oxford Street and Taylor Square; (b) I have found that the advertising sign and associated structure do not have heritage value, rejecting Professor Mackay’s evidence and accepting Mr Poulton’s evidence on this point; (c) I have found that the advertising sign and associated structure do not contribute to, and in fact detract from, the character and amenity of the Oxford Street HCA, Oxford Street, Darlinghurst locality and the Oxford Street Cultural and Creative Precinct, rejecting the evidence of Mr Strudwick and Ms Maze-Riley and accepting the evidence of Mr Li and Ms Pressick on this point; (d) I have found that there are adverse environmental impacts as a result of the display of the advertisement on the sign and associated structure, including significant heritage, planning and visual impacts, as demonstrated by the evidence of Mr Poulton, Mr Li and Ms Pressick; (e) The delay in the Council taking enforcement action after the expiry of the 1999 development consent on 10 February 2001, has worked no prejudice to Save the Robots and JC Decaux, but to the contrary has yielded them financial advantage by being able to earn income for 25 years, notwithstanding the unlawfulness of the use of the building for the purpose of advertising; and (f) The “financial loss” that Save the Robots and JC Decaux will suffer is not being able to earn income from continuing the unlawful use of the building for the purpose of advertising, which is not a relevant prejudice.
In these circumstances, a proper basis has not been established to revoke the Order given by the Council to remove the advertising sign and associated structure.
Nevertheless, I consider that a reasonable period of time should be allowed for Save the Robots to comply with the Order. Save the Robots suggested two dates: first, the date on which the development consent granted by the Commissioner will lapse unless building, engineering or construction work relating to the building is physically commenced within 5 years after the date from which the development consent operates, which was 14 February 2025 (ie 14 February 2030) or, second, the date of expiry of the lease from Save the Robots to JC Decaux for the advertising sign and associated structure (ie 30 June 2029).
I consider neither of these dates is appropriate. The second date of the expiry of the lease is not appropriate as this would allow both parties to the lease to continue to profit from the unlawful use. Both parties were aware of the risk that the use might be found unlawful and included a term in the lease dealing with this contingency. Clause 4.4(b) and cl 4.6 of the lease provided for the termination of the lease on the occurrence of a permanent impediment, such as if:
“any Authority having jurisdiction in relation to the Property or the Site requires the Sign to be removed from the Site or any law, regulation, rule or any provision having the force of law prevents APN from operating or maintaining the Sign on the Site or wholly or partially using the Site or the Sign for its intended use.”
The first date is not appropriate as the period of 5 years after the date from which the consent operates is the maximum time by which building, engineering or construction work relating to the building needs to be physically commenced. There is no reason why Save the Robots needs to delay physical commencement until the last day of this 5 year period.
However, I accept that there would be a saving of cost for Save the Robots if the work involved in the removal of the advertising sign and associated structure required by the Order were to be carried out as part of the carrying out of the development in accordance with the development consent granted by the Commissioner. I consider that a period of one year from the date of my modifying the Order will provide a reasonable time for Save the Robots to physically commence the development the subject of the development consent granted by the Commissioner. If Save the Robots does physically commence that development, it will not need separately to remove the advertising sign and associated structure under the Order, because instead the advertising sign and associated structure will be removed as part of carrying out of the development the subject of the development consent.
To this extent only, Save the Robots' appeal should be upheld so as to modify the Order to allow one year for the advertising sign and associated structure to be removed.
The Court orders:
The appeal is upheld.
The development control order given by the Council of the City of Sydney on 2 July 2024 to Save the Robots Pty Ltd with respect to premises at 191-195 Oxford Street, Darlinghurst, to demolish an advertisement and any associated structure on the roof of the premises, is modified by specifying the period for compliance to be 1 year from the date of the Court’s order on 19 December 2025, being 19 December 2026.
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Amendment to correct typographical errors.
Save the Robots Pty Ltd ATF Save the Robots Trust
The Council of the City of Sydney [2025] NSWLEC 150
(2009) 239 CLR 175
(1939) 62 CLR 464
(1963) 108 CLR 568
(2005) 142 LGERA 104
(2005) 223 CLR 1
(2012) 188 LGERA 26
(2014) 313 ALR 665
(2014) 201 LGERA 12
(2018) 236 LGERA 35
(2009) 171 LGERA 104
(1988) 15 NSWLR 437
(2009) 83 ALJR 384
(1999) 105 LGERA 290
(1993) 31 NSWLR 56
(2006) 146 LGERA 10
(2015) 256 CLR 507
(2014) 45 VR 585
(2021) 271 CLR 132
(1979) 141 CLR 614
(1992) 174 CLR 509
(2006) 67 NSWLR 256
(1973) 130 CLR 353
(1993) 31 NSWLR 562
Nevertheless, the requirements in cl 5.10(4) and (5) of SLEP are informative. Clause 5.10(4) provides in part:
For these reasons, I find that the first circumstance in which the Order was given is established. The existing advertisement and associated structure on the roof of the building are unsightly, objectionable or injurious to the amenity of the public place of Oxford Street near where the advertisement and associated structure are displayed. The establishment of this circumstance gives the Court the power on appeal to make the same order under item 6 of the table to Part 1 of Sch 5 of the EPA Act that the Council gave to remove the advertisement and associated structure. It is not necessary, in order for the Court to make this order, to find that the second and third circumstances for the giving of an order under item 6 of the table are also established. Any one of the circumstances on which an order under item 6 of the table may be given is sufficient to ground the exercise of the power to give such an order.
In these circumstances, it is strictly unnecessary to decide issues (b), (c) and (d), as no matter how I decide these issues, I have determined that an order under item 6 of the table can be made to remove the existing advertisement and associated structure. The only question remaining is whether such an order should be made in the exercise of the Court’s discretion (issue (e)). Nevertheless, as issues (b), (c) and (d) have been extensively argued, I will decide the issues.
It was in this context that Handley JA observed at [6] that:
This conclusion, that an issue estoppel did not arise from the Commissioner’s finding of fact in the appeal against the Council’s decision to refuse consent to the development application, turns on the administrative nature of the function being exercised, not the nature of the finding itself. The same finding if made in judicial proceedings, such as proceedings in Class 4 of the Court’s jurisdiction to restrain a breach of the EPA Act in which the issue of existing use is determined or for a declaration as to the existence of an existing use, could give rise to an estoppel, including a cause of action estoppel or an issue estoppel (as to which see Tomlinson v Ramsay Food Processing Pty Ltd at [22]): see, for example, PE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 where proceedings to restrain breaches of conditions of consent resulted in a judgment in rem in respect of the validity of those conditions. But the administrative appeal determined by the Commissioner was not such a judicial proceeding.
The Council raised a second argument in the alternative to its argument of issue estoppel. This was that it is an abuse of process for Save the Robots to seek to relitigate the issue of existing use in other proceedings against the same party, the Council. The Council cited the High Court’s statement in Tomlinson v Ramsey Food Processing Pty Ltd at [25]-[26] that:
In these circumstances, Save the Robots is not seeking to litigate the same issue twice in the same cause and the Council cannot be said to be twice vexed by the same cause. The issue might be the same, but the cause is not the same.
Thirdly, as I explained for issue estoppel, it is relevant that both proceedings are administrative appeals and not judicial proceedings. Both proceedings involve an appeal against the Council’s exercise of an administrative function under the EPA Act, one being the function of determining a development application under s 4.16(1) and the other being the function of giving a development control order under s 9.34 of the EPA Act. The Council, as the consent authority, needed to make a finding regarding whether the use of the advertising sign and associated structure was an existing use in exercising those administrative functions. So too, the Court, exercising those same administrative functions on appeal, needs to make a finding regarding whether the use of the advertising sign and associated structure is an existing use. The result is that it was entirely proper for either party to raise the issue of existing use as an issue in the appeals that the Court needs to decide in order for the Court to dispose of the appeals.
A finding on the issue of existing use needs to be made irrespective of the order in which the appeals are heard and disposed of. The propriety of raising the issue of existing use in both appeals is not rendered improper, and an abuse of process, by the order in which the appeals are heard and disposed of by the Court. It happened that the appeal under s 8.7(1) of the EPA Act against the Council’s determination of the development application was heard before the appeal under s 8.18(1) of the EPA Act against the Council’s giving of a development control order. This led to the Commissioner making a finding of fact regarding existing use in disposing of the s 8.7(1) appeal before I can make a finding of fact regarding existing use in disposing of the s 8.18(1) appeal. But this does not mean that Save the Robots’ pressing of the issue of existing use in the s 8.18(1) appeal, although the issue was properly raised when the appeal was commenced, became an abuse of process immediately upon the Commissioner delivering judgment in the s 8.7(1) appeal.
The upshot is that Save the Robots is not precluded from raising on this appeal under s 8.18(1) of the EPA Act against the Council’s development control order the issue of whether the use of the advertising sign and associated structure is an existing use by reason of either issue estoppel or abuse of process.
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.
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.
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.
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.
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.
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:
An aerial photograph of Taylor Square taken around 1932-1934 showed the back of a large sign protruding above the roof of the building. This might have been the Wolfe Schnapps sign that had been erected in the 1920s.
Around this time, Ordinance 55 came into force, on 24 February 1933. Clause 3 of Ordinance 55 required a written permit to erect or display any sign in the nature of an advertisement on or above any building, other than a structure licensed as a general advertising structure under cl 5 of Ordinance 55. Clause 5(1) of Ordinance 55 provided that a person was not to erect or use a general advertising structure for the display of advertisements unless the person was the holder of a licence for such structure issued either under Ordinance 55 or in existence at the commencement of Ordinance 55. There was no evidence of a written permit under cl 3 of Ordinance 55 to display an advertisement or a licence under cl 5 of Ordinance 55 to erect or use a general advertising structure having been granted for this advertising sign and associated structure.
Around 1934, a photograph shows a sign on the roof displaying an advertisement for Capstan cigarettes. The content of the Capstan advertisements changed over the years. The advertisement in 1934 showed the silhouette of a man in a top hat smoking a cigarette.
This advertisement might have been replaced around 1935 with another Capstan advertisement, displaying the words “Time for Capstan” with a clock. Photographs in 1939, 1941, 1953, 1954, 1956, 1957, 1958, 1959, 1960 and 1961 show this Time for Capstan sign on the roof of the building. There is no evidence of a building approval under Pt XI of the LG Act 1919, a permit under cl 3 of Ordinance 55 or a licence under cl 5 of Ordinance 55 having been granted for either of these advertisements.
On 28 December 1962, the City Building Surveyor approved “Structural support for roof sign”. The City Building Surveyor’s Department card for the year 1962 noted the applicant to be Claude Neon Ltd (Claude Neon); the location to be 2 Flinders Street, Sydney; the description of the development to be sign; the estimate of cost £1375; and the application no 2807. The card noted the application was lodged on 23 November 1962 for “structural support for roof sign” and added that it was “to replace existing.” The card noted that “DA not required.” The card recorded the application as having been “approved” on 28 December 1962. The card added a comment that “plans & specn. on job checked.” The card recorded that work started in January 1963 and was “complete to approval” on 12 March 1963.
This application and approval of structural support for roof sign was likely a building application and approval under Pt XI of the LG Act 1919, not a development application and consent under Pt XIIA of the LG Act 1919, as the card had recorded that “DA not required.” There is no evidence of a permit under cl 3 of Ordinance 55 or a licence under cl 5 of Ordinance 55 having been granted for this advertising sign and associated structure.
After the works were completed in 1963 in accordance with the building approval, the advertisement displayed on the sign changed from “Capstan” to “Esso”. Photographs taken on 3 February 1965 and 8 February 1968 show the Esso sign.
In the meantime, an application had been made and an approval had been granted for a different advertising sign and associated structure to replace the Esso sign. The City Building Surveyor’s Department card for the year 1967 recorded an application being made on 1 September 1967 for “structural support for roof sign.” The card recorded the applicant as Consolidated Neon; the location as 193/195 Oxford Street, Sydney; the description of the development as sign; and the estimate of cost $150. The card noted the application as being approved on 14 September 1967, and added a note that “plans & specn. on job checked.” The card recorded the approved plan and specification drawing numbers. The card recorded that “work commenced” on 12 June 1968 and “job completed to the approved plan” on 2 July 1968. On completion of the works the advertisement display was “Firestone Tyres”, which replaced the earlier Esso sign.
The Firestone Tyres sign remained until it was replaced in 1979. A photograph taken on 20 June 1978 shows the Firestone Tyres sign on the roof of the building.
In 1979, Claude Neon applied for both development consent and building approval to replace the existing Firestone Tyres sign with a solid background “Johnnie Walker” sign and to conceal the associated structure with metal cladding. The development application was made on 18 January 1979. On 8 May 1979, Claude Neon Limited amended its development application to extend the metal cladding around each end and the complete length of the rear of the advertising structure on which the Johnnie Walker advertisement would be displayed.
The Council refused consent to that development application on 25 June 1979. The Council invited Claude Neon to submit another development application which provided for “the erection of a sign reduced in height and forming an integral part of the building.”
It would appear that Claude Neon did apply again for development consent by letter dated 23 August 1979. Although the Council initially resolved to refuse consent to this development application on 24 September 1979, the Council subsequently rescinded that resolution and instead granted consent to the development application on 8 October 1979, which was notified on 10 October 1979. One of the conditions of development consent, condition (ii), was “That the approval shall be for not more than five years after completion of the necessary work”.
Claude Neon then applied for building approval on 23 October 1979. The Council granted building approval on 16 November 1979. Application was made on 30 April 1980 to amend the building plan identified as SC 18448/2, which application was approved on 26 May 1980.
The approved Johnnie Walker advertising sign and associated structure was thereafter erected in accordance with the development consent and building approval. Work was completed by the end of October 1979. Photographs taken in 1982, 1983 and 1984 show the Johnnie Walker sign on the roof of the building.
As earlier noted, condition (ii) of the development consent for the Johnnie Walker sign limited the duration of the consent to five years after completion of the necessary work. The necessary work to erect the approved advertising sign and associated structure was completed by the end of October 1979. Accordingly, the development consent expired by the end of October 1984. The Council wrote to Claude Neon on 16 August 1984 advising it of the forthcoming expiry of the development consent and the need for the sign and associated structure to be removed by 31 October 1984.
By letter dated 20 September 1984, Claude Neon requested the Council to modify the development consent to allow the sign and associated structure to remain on the building for a further five years. On 10 December 1984, the Council refused the extension of the development consent for the sign and associated structure for a further period of five years.
On 16 January 1985, the Council issued a notice to comply to Claude Neon to remove the sign and associated structure in accordance with the development consent. That notice to comply prompted Claude Neon Limited to apply for development consent “to the continued display of the ‘JOHNNIE WALKER’ roof sign on the above premises which was the subject of development approval dated 10th October 1979”. On 25 March 1985, the Council resolved to refuse consent to the development application, which was notified on 27 March 1985.
On 29 March 1985, Claude Neon appealed against the Council’s refusal of development consent for the continued display of the Johnnie Walker advertising sign. This appeal was successful. On 3 February 1986, Assessor O’Neil upheld the appeal and granted development consent to the continued use of the advertising sign erected on the roof top of the building subject to a condition that: “The consent shall remain in force for five years from the date of the Court’s order unless extended by the Council.” The date of the Court’s order was 3 February 1986, so that the consent expired on 3 February 1991.
On 18 April 1986, Claude Neon applied to the Court to modify the development consent granted by Assessor O’Neil to replace the Johnnie Walker sign with a new sign for Sterling Cigarettes, but that application was subsequently withdrawn. Instead, on 17 July 1986, Claude Neon lodged a development application with the Council to replace the Johnnie Walker sign with the Sterling Cigarettes sign. The Council did not determine that development application and Claude Neon lodged an appeal against the Council’s deemed refusal. The Court (Assessor Nott) dismissed the appeal on 8 July 1987, thereby refusing consent to the development application.
On 31 July 1987, Claude Neon applied again for development consent for “replacement of sign only on existing roof advertising structure”, being to replace the Johnnie Walker sign with the Sterling Cigarettes sign. On 10 September 1987, the Council again refused consent to the development application.
On 23 January 1989, the Council issued a notice to comply requiring Claude Neon to remove an unauthorised sign on the roof of the building. Apparently, sometime in 1988, Claude Neon had replaced the Johnnie Walker sign with a sign warning against speeding. Development consent had not been sought or granted for that speeding sign.
On 25 May 1989, Claude Neon applied for development consent, “to replace an existing general advertising single face roof sign”. The sign to be replaced was the unauthorised speeding sign rather than the approved Johnnie Walker sign. The proposed new advertisement was a “Triple M Triples Your Music” sign.
On 16 October 1989, the Council granted consent to the development application for the Triple M sign subject to conditions. One of the conditions, condition 1, required “That the roof sign and any associated structures shall be removed on or before the 3rd of February 1991.”
On 16 April 1991, the Council issued to Claude Neon a notice to comply with condition 1 of the development consent to remove the sign and associated structures. Again, that notice to comply prompted Claude Neon to apply on 31 July 1991 for development consent to continue to display the Triple M Sign.
On 31 October 1991, the Council granted consent to the development application for the continued display of the Triple M sign, subject to conditions. One of the conditions, condition 1, required:
Save the Robots has not proven express consent, namely that all of the required statutory approvals were granted. It has also not shown conduct evidencing consent. The conduct relied on by Save the Robots was said to be “the blatant nature of this advertisement, and distinct lack of any enforcement action or suggestion of illegality (well within the Council’s powers to enforce since 1906) together with the consistency of approvals (such that they exist, from about 1962)” (Applicant’s and Second Respondent’s Closing Submissions, [75]).
This conduct does not, however, show conduct evidencing consent. First, the blatant nature of the advertisement and distinct lack of enforcement action are neutral. There might be many reasons why the responsible authority over the last century, might not have chosen to take enforcement action, including lack of human and financial resources to take enforcement action, lack of political will, prosecutorial policy, or perceived poor prospects of success. Certainly, it cannot be said that the only reasonable inference that can be drawn from the blatant nature of the advertisement and distinct lack of enforcement action is that all of the required statutory approvals had been granted.
Secondly, it is not in fact correct to say that there was a distinct lack of enforcement action. From around 1984, the Council repeatedly took action to enforce compliance with the planning law, sometimes requesting by letter that the advertising sign and associated structure be removed on the expiry of a development consent (16 August 1984 and 10 December 1998); other times by issuing a notice to comply with the development consent (such as on 16 January 1985, 20 March 1985 and 16 April 1991); another time by issuing a notice under cl 21(1) of Ordinance 55 to remove the advertising sign (20 June 1985); another time by issuing an order for demolition of the building after it was badly gutted by fire (19 May 1987); another time by issuing a notice to comply requiring removal of the unauthorised speeding sign (23 January 1989); and lastly by issuing the development control order to remove the advertising sign and associated structure (2 July 2024). The user of the advertising sign and associated structures at the time, Claude Neon, responded to the various enforcement actions by making building applications, development applications and modification applications to render lawful the erection and use of the different advertising signs and associated structures, as well as lodged and prosecuted appeals to the Court against the Council’s decisions and actions. Such conduct is confirmation that all of the required statutory approvals had not been granted.
Thirdly, there is no consistency in the approvals that were granted. As I have earlier explained, building approvals were not obtained at all before 28 December 1962 when for the first time building approval was obtained for the Esso sign. Building approval was thereafter issued for the Esso, Firestone Tyres and Johnnie Walker signs. Development consent was not obtained, after it was required under Pt XIIA of the LG Act 1919 in 1945 for the Capstan, Esso and Firestone Tyres signs, until 10 October 1979 when development consent was granted for the Johnnie Walker sign. Development consent was thereafter granted for the Johnnie Walker, Triple M, Westpac and Nokia signs. However, all of these development consents were time-limited. No permit or licence under Ordinance 55 was ever granted for the erection and use of any of the advertisements and associated structures.
This patchiness in the grant of the different statutory approvals that were required confirms that all of the required statutory approvals were not granted, rather than being granted.
In these circumstances, Save the Robots has not established that this is an appropriate case for application of the presumption of regularity so as to prove that all of the required statutory approvals were granted.
This means that immediately before the coming into force of SEPP 64 on 16 March 2001, which had the effect of prohibiting the display of an advertisement on the building, the use of the building for the purpose of advertising was not lawful. The use of the building for the purpose of advertising continued not to be lawful thereafter and immediately before the coming into force of the Industry SEPP on 1 March 2022, which also prohibits the display of an advertisement on the building.
In these circumstances, the use of the building for the purpose of advertising is not an existing use within paragraph (a) of the definition of existing use. As a consequence, s 4.66(1) of the EPA Act is not engaged so as to allow the continuance of the use of the building for the purpose of advertising, notwithstanding the prohibition of that use in s 3.8(1) of the Industry SEPP.
Accordingly, as there is no existing use, the advertisement on the roof of the building is being displayed contrary to a provision made by or under the EPA Act and is associated with a structure erected contrary to a provision made by or under the EPA Act. These are the second and third circumstances on which an order under item 6 of the table to Part 1 of Sch 5 to the EPA Act can be made. The Court thereby has power to make the same order that the Council gave to remove the advertisement and associated structure from the roof of the building.