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[1998] NSWLEC 202
procedural. Proceedings stood over to hear submissions on the exercise of the Court's discretion under s 124 of the EP&A Act; leave granted to parties to approach the Registrar for a hearing date.
The Court ruled that an advertising sign on a Darlinghurst building could not rely on 'existing use rights' to avoid removal, because the sign had been significantly structurally altered in 1981 under a development consent that had since expired. The judge found that existing use rights protect continuing uses of land, but not physical changes to structures. The 1981 alterations (adding cladding, changing lighting, modifying supports) were structural changes requiring consent, not merely technological improvements. When the 1981 consent lapsed after five years, the legal right to use the altered sign ended. However, the Court deferred a final decision on whether to actually order removal, wanting to hear arguments about whether it should exercise its discretion given the long delay since the consent expired.
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These proceedings concern an advertising sign erected on the roof of a building in Oxford Street, Darlinghurst. South Sydney City Council (the council) seeks an order that the sign be removed on the ground that the development consent which permitted its erection has expired by effluxion of time.
1 cited instrument linked from this judgment.
The respondents, Nettlefold Advertising Pty Ltd and Cody Outdoor Advertising Pty Ltd, claim that they have the benefit of existing use rights in relation to the advertising sign.
The advertising sign is constructed upon the roof of premises situated at 217 Oxford Street, Darlinghurst being lot 5 in DP 745804 (the premises).
An advertising sign has been in existence on the roof of the premises from about 1935 to the present day. Persons who had lived in or passed through the local area gave evidence of their observations to this effect. Thus, Mr R Burns said that he observed a sign, advertising Penfolds Wines, in 1935. Mr T Lyons travelled to the city along Flinders and Oxford Streets from 1935 through to 1968, and observed the Penfolds sign. Mr R R Peterson observed a sign from 1941 through to 1945, and Mr M Nissen observed a sign from 1944 through to 1953. Mr M de Berry said that he acquired a lease of the premises in 1965, and there was an advertising sign on the roof of the premises at that time.
Those observations were corroborated by the evidence of Ms D Wager, who researched and produced various photographs showing an advertising sign on the premises in 1935, 1948, 1956, 1957, 1974 and 1981.
On 16 April 1981, a development application was lodged with the council by Heath Signs Pty Ltd in relation to the premises. It sought approval "To erect an advertising sign on the roof of the building. Existing structure to be modified and clad". The council officer's report in relation to the development application recommended refusal. In that report, the council officer described the proposed development in the following terms:
"To erect on the roof top ... an illuminated sky sign with overall dimension of 10.98m x 4.27m, displaying the words "WHEREVER YOU GO - PETER STUYVESANT", together with the likeness of a cigarette packet, all in accordance with drawing No. 1112, submitted with the application. The proposed sign will be affixed to cladding erected around an existing steel frame which at present supports a neon sign, displaying the words "CITIZEN WATCHES - DIGITAL QUARTZ".
At its meeting on 12 October 1981, the council refused to grant development consent, but, in its notice of refusal, it advised that "... a proposal incorporating the existing A-frame on the roof ... would be favourably considered ...".
On 23 October 1981, the council rescinded its earlier resolution, and granted development consent subject to conditions in respect of the sign described in the application, "... incorporating the existing A-frame on the roof ...". One of the conditions to which the development consent was subject provided that it would be for a period of five years.
The council furnished building approval in relation to the proposed sign on 23 February 1982, and the council records disclose that work commenced in June 1982, and was completed by October 1982.
Mr Hawkes, for the council, put its case on the following basis:
* Additional structural elements were proposed to be erected on the advertising sign in 1981. At that time, the premises were subject to the City of Sydney Planning Scheme Ordinance (the PSO), and were subject to a county road reservation, to which div 4 of the PSO applied. Clause 15(3) of div 4 of the PSO provided that the erection of a building was not to be undertaken without the consent of the responsible authority;
* The definition of "building" in the Environmental Planning and Assessment Act 1979 (the EP&A Act) included "any structure or part of a structure". In 1981, what was proposed in relation to the advertising sign was the erection of additional structural elements and those elements constituted a "structure" which, under the provisions of the EP&A Act and the PSO, required development consent.
* Development consent was in fact granted in 1981, but it was subject to a condition that it would lapse after a period of five years. At the expiration of that period, the development consent ceased to operate. Since s 91(4) of the EP&A Act provides that development consent for the erection of a building authorises the use of the building when erected, the consequence was that consent to the use of the structure as erected also ceased.
* Hence, the respondents do not have development consent for the advertising sign, and the Court should order its removal.
The respondents contend that the development consent granted in 1981 is irrelevant, and that they have existing use rights in respect of the advertising sign. They claim that the use of the advertising sign lawfully commenced before statutory planning controls came into force in 1946, and accordingly, that use is protected by s 109(1) of the EP&A Act, which provides:
"109 (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained."
Mr Austin QC, for the respondents, relied specifically upon a passage from the judgment of McHugh JA (as he then was) in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309 -310:
"... the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an `existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless."
The respondents assert that the structure has been used for the purpose of an illuminated advertising sign since about 1935, and any alterations to it since then have been technological changes in the method of operating such signs. Hence, the respondents assert that the advertising sign should remain.
(1) the affidavit of Mr L Adey, a town planner in the employ of the council, who compared photographs of the current advertising sign with photographs of the advertising sign taken before 1981;
(2) the photographs annexed to the affidavits of Mr Benson, Mr de Berry, and Ms Wager; and
(3) the plans furnished to the council in connection with the building application in 1982;
reveal that the advertising sign altered after 1982 in three significant ways. First, the supporting structure was fully clad from the roof to the top of the structure. Secondly, external lights have been fitted to the structure, whereas previously the advertising sign was a neon sign. Thirdly, the supporting struts involved a more complex arrangement in 1981 than currently exists.
The respondents' evidence does not support a contrary finding. Mr S J Dwyer is a building consultant who furnished an affidavit on behalf of the respondents. He also viewed the photographic evidence and inspected the current advertising sign. His conclusion was that "the structural steel frame, in terms of its size, location and framing members, has not materially altered since that approved and referenced (photographically) in the previously submitted affidavits ...". This is an ambiguous statement, but I take it to mean that the advertising sign currently in place is not materially different from the advertising sign approved in 1981.
The carrying out of the three alterations I have noted required development consent in 1981. That is so because of the provisions of the EP&A Act and the PSO. In s 4 of the EP&A Act, "development" was defined to include "the erection of a building". In the same section, "building" was defined to include "any structure or part of a structure". Section 4(2)(a) provided that a reference in the EP&A Act to the erection of a building included, amongst other things, the making of structural alterations to a building. Clause 15(3) of the PSO required consent to be obtained for the erection of a building. Section 76(2) of the EP&A Act applied to prohibit the carrying out of development unless that consent had been obtained.
A development application was made in 1981, which specified the nature of the proposed structural alterations and the purpose for which they were to be used, namely, as an illuminated sign advertising a specific brand of cigarette. Development consent was granted in 1981, but it was conditional upon a limitation of five years. Pursuant to s 91(4) of the EP&A Act, the development consent for the "erection of the building", that is, for the structural alterations to the structure, carried with it the authority to use the structure for the purpose specified in the development application.
But the development consent lapsed in 1986, and the right to use the structure for the purpose specified in the development application ceased as a consequence. Accordingly, after 1986, the respondents were not authorised to use the advertising sign in its present configuration, although, by dint of existing use rights, they may have been able to continue to use the structure as a neon advertising sign in its previous configuration.
The conclusion that I have reached is not disturbed by the passage I have quoted from the judgment of McHugh JA in Royal Agricultural Society v Sydney City Council, because what was involved here was not a natural change in the method of using the structure, but structural alteration of the structure. Nor do I agree that the structural changes which were made were merely changes brought about by improved technology in the display of advertisements on billboards. On the contrary, the structural alterations made the advertising sign different from what it had been.
Although I have concluded that the council has made out its case, and is prima facie entitled to the relief which it has sought, I have not yet heard any submissions on the question of the exercise of the Court's discretion under s 124 of the EP&A Act. There are obviously matters which need to be addressed on this aspect, not the least of which is the fact that the development consent expired almost 12 years ago which may or may not carry with it some implications about delay.
Accordingly, I stand the proceedings over for the purpose of hearing any such submissions. I grant leave to the parties to approach the Registrar to obtain a hearing date for that purpose.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 6 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.
Proceedings stood over to hear submissions on the exercise of the Court's discretion under s 124 of the EP&A Act; leave granted to parties to approach the Registrar for a hearing date.