Tamas Real Estate Pty Limited v Council of the City of Sydney

Environmental Planning and Assessment Act 1979 City of Sydney Signage and Advertising Structures Development Control Plan 2003 LEGISLATION CITED: City of Sydney Signage and Advertising Structures Development Control Plan 2005 .

Zhang v Canterbury City Council (2001) 115 LGERA 373 ; CASES CITED: Stockland Holdings v Manly Council [2004] NSWLEC 472; .

DATES OF HEARING: 19 July 2005 EX TEMPORE JUDGMENT DATE : 07/19/2005

APPLICANT Mr Tamas, agent

LEGAL REPRESENTATIVES: RESPONDENT Mrs L. Finn, solicitor Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10162 of 2005 Tamas Real Estate Pty Limited v Sydney City Council

1 This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act1979 (the Act) in which the applicant, Tamas Real Estate Pty Limited seeks to modify a consent from the Council of the City of Sydney (the council) to enable the erection of a projecting wall sign from the western most of two balconies protruding above the shopfront of the applicant's premises on the ground floor of 128 Cleveland Street, Chippendale (the site). The proposal has been through a review process undertaken by the council as a consequence of which the applicant has a consent for the erection of an under-awning sign outside its premises and setback somewhat lower than the sign which it now proposes.

2 The application, as originally contended for in these proceedings, was for a sign 450 mm high and projecting 2.42 m from the balcony. However, the applicant was granted leave, which was not opposed by the council, to amend the size of the proposed sign to 350 mm high and 1.5 m in projection. It is with respect to a sign of those latter dimensions that I approach my consideration of this appeal.

3 The uncontested evidence given by Ms Francesca O'Brien, senior planner for the council, is that the site is located on a road, which is classified as a main road by the Roads and Traffic Authority, carrying approximately 56,000 vehicle movements per day. A significant intersection with Abercrombie Street is located approximately 100 m to the east of the site.

4 The matters pressed by the council as warranting refusal of the application effectively all arise from the provisions contained in the relevant Development Control Plans. 5 In addition, a matter relating to the possible impact on a street tree immediately outside the applicant's premises and directly in front of the balcony from which the proposed sign is proposed to be hung arose during the proceedings as a consequence of the view.

6 The Development Control Plan which applied at the time of the original application to the council is the October 2003, City of Sydney Signage and Advertising Structures Development Control Plan 2003, which I will refer to as the 2003 Development Control Plan.

7 The council subsequently adopted, on 10 March 2005 (effectively commencing operation on 28 March 2005), the City of Sydney Signage and Advertising Structures Development Control Plan 2005 which I will refer to as the 2005 Development Control Plan.

8 It is clear from Ms O'Brien's evidence that the 2005 Development Control Plan is, to all relevant intents and purposes, identical with the 2003 Development Control Plan. She notes in her evidence, at para 5.8, that there are only minor differences in the controls between the two Development Control Plans. For the purposes of my present assessment, I am satisfied that, if the application should be accepted or rejected on the basis of the 2003 Development Control Plan, an identical position would arise with respect to the 2005 Development Control Plan.

9 It is settled law by virtue of the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 that, in considering the provisions of a Development Control Plan that has been through the proper and appropriate assessment processes discussed by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, I should give the terms of the Development Control Plan not merely significant weight in proceedings such as these but that the Development Control Plan should be the starting point to and focus for my consideration of the application. 10 There are a number of provisions of the 2003 Development Control Plan that are relevant in these proceedings. The first of them is contained in cl 2.4.1 relating to the general location and design of signs. 11 Clause 2.4.1(vii) requires that signs are to be designed and located to have only a minimal projection from a building. It is clear in the present instance that the proposed sign even in its amended form could not be described as only a minimal projection from the relevant building.

12 The controls provide in cl 2.10.1 a number of provisions relating to signs and road safety. In this regard in my assessment the critical element is contained in cl 2.10.1(iv) where the Development Control Plan states that signs are to be regarded as prejudicial to the safety of the travelling public if they are situated at locations where the demand on drivers concentration due to road conditions are high such as at major intersections or merging and diverging lanes.

13 The third of the relevant controls relates to signs between the first floor and the parapet and is contained in cl 3.5.3, which deals with limited exceptions to projecting signs. That provision would except projecting wall signs in the Chinatown/Haymarket and cinema special areas of the City of Sydney on non heritage buildings and in those locations would limit the horizontal projection to not more than 1m. 14 Even if I were to have concluded that it would be appropriate to have regard to that exception and extend it, by indulgence, to the present application, the present application would still breach the designated maximum horizontal projection.

15 The final matter is the possibility of whether or not there should be some indulgence that arises because of the difficulty that the applicant puts to me about protecting its approved under-awning sign. 16 I intuit, although it is not expressly put to me in these terms, that Mr Tamas is basing his submissions on behalf of the applicant, in effect asking me to assume that a sign as he proposes it is consistent with s 5 of the Act namely for the orderly economic development of the land which is involved.

17 In doing, so he has taken me to a number of signs in the vicinity of the site and asked me to conclude that what he seeks now to have approved is not inconsistent with that general signage. 18 In that regard, I note that Ms O'Brien is unable to provide evidence as to the approval or otherwise of the various signs that are in the photographic material tendered by Mr Tamas - similarly Mr Tamas was not in a position to provide me with any information concerning them. 19 Although those photographs depict a variety of signs, none of them projects into the streetscape in any fashion similar to that proposed by the applicant, save and except with the possibility of the sign on the Thai restaurant somewhat to the west of the site and on the opposite side of Cleveland Street. 20 Even then, I do not have information as to the precise dimensions of that sign but, from my observations on site, it would not have been either as high above ground or as tall as that which is proposed by the applicant.

21 The applicant submits, in the material that was put in the proceedings as well as in the discussions which took place informally on site (which are to be regarded by me as evidence in the proceedings) that the sign that is presently approved under awning is unsatisfactory as it would be the subject of vandalism. Be that as it may, I am still obliged to assess the acceptability of that which is proposed on the merits of that which is proposed.

22 It is my opinion that the appeal should be dismissed for a number of reasons. 23 The first is that I am satisfied that, in consideration of the provisions of the 2003 Development Control Plan, the sign will be a significant addition to the signage along Cleveland Street at that location, a location observed from the view to have a number of significant Roads and Traffic Authority signs in it.

24 I am satisfied on the basis of the uncontradicted evidence of Ms O'Brien as to the volume of traffic that is carried along Cleveland Street that it is not appropriate for there to be any distraction to motorists and for that reason, primarily founded on the provisions of cl 2.10.1(vi) of the 2003 Development Control Plan, the sign is unacceptable.

25 I am not satisfied, however, that the sign would be unacceptable in a general streetscape amenity context or that further advertising signage would be unacceptable in a general streetscape amenity context because of the wide and eclectic range of other signs (whether approved or not) in the vicinity. Hence the possibility of other signage at above immediate eye level is not precluded by this determination, merely that signage that projects from the front of the building is inappropriate.

26 On a subsidiary issue raised by me by questions to Mr Tamas in the witness box (which led to the amendment being sought to the size of the sign) and the subsequent re-examination of Ms O'Brien, I am also satisfied that there is a significant potential impact on the street tree that has been planted by the council outside the premises. I am satisfied, on balance, that the contribution to the amenity to the general public and to the residents of the vicinity by the wellbeing of that street tree outweighs any consideration I should give to the immediate commercial needs of the applicant. For that reason, in addition to the reasons arising from the 2003 Development Control Plan, it would not be appropriate to approve the sign.

27 The orders of the Court therefore will be: 1. The appeal is dismissed; 2. Application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 to modify Development Consent D/04/510 to permit the erection of a sign above the footpath protruding from the balcony above premises on the ground floor of 128 Cleveland Street, Chippendale is refused; and 3. The exhibits are returned.

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