Tamworth Regional Council v Barr Property and Planning Pty Ltd

Catchwords: Appeal – appeal against Commissioner’s decision on question of law – whether misconstruction of statutory definitions – digital advertising sign – whether “roof or sky advertisement” - meaning of preposition “on” in phrases “displayed on” and “erected on” parapet – whether “wall advertisement” – meaning of “fixed flat” to the wall of a building – misconstruction of words and phrases

Legislation Cited: Land and Environment Court Act 1979, s 56A(1)
State Environmental Planning Policy (Industry and Employment) 2021, ss 3.2(1), 3.4, 3.7, 3.9, 3.10, 3.11, 3.19, 3.20, 3.27, Part 3.3, Chapter 3
Tamworth Regional Local Environmental Plan 2010, cl 4.6

Cases Cited: Forma Holdings Pty Ltd v Minister for Urban Affairs and Planning (2000) 109 LGERA 391; [2000] NSWLEC 113
Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404

Texts Cited: Macquarie Dictionary

Category: Principal judgment

Parties: Tamworth Regional Council (Appellant)
Barr Property and Planning Pty Ltd (Respondent)

Representation: Counsel:
G Ng SC (Appellant)
M Seymour SC (Respondent)
Solicitors:
Urban Legal (Appellant)
McKees Legal Solutions (Respondent)

File Number(s): 2025/211338

Publication restriction: NIL

JUDGMENT

1. Tamworth Regional Council (the Council) appeals against the decision and orders of a Commissioner of the Court to grant consent to a digital advertising sign proposed by Barr Property and Planning Pty Ltd (Barr Property) on the external façade of the Tamworth Square Shopping Centre on the corner of Peel Street and White Street, Tamworth. The appeal is under s 56A(1) of the L**and and Environment Court Act 1979 (Court Act) and is limited to questions of law.

2. The Council raised two grounds of appeal, both asserting that the Commissioner erred on a question of law by misconstruing the definitions of “roof or sky advertisement” and “wall advertisement” respectively in s 3.2(1) of State Environmental Planning Policy (Industry and Employment) 2021 (the SEPP).

The contest in statutory interpretation

3. The proposed sign is permissible with consent as an innominate use in the applicable Zone E2 Commercial Centre under Tamworth Regional Local Environmental Plan 2010 (LEP). The SEPP, however, regulates advertising and signage in Chapter 3.

4. Section 3.4 of the SEPP provides that Chapter 3 applies to all “signage” that can be displayed with or without development consent under another environmental planning instrument that applies to the signage and is visible from any public place or public reserve. “Signage” is broadly defined in s 3.2(1) of the SEPP to mean “all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage” and includes specified types of signs. The proposed sign falls within this definition of “signage”. The LEP permits the signage to be displayed with development consent. The signage will be visible from the public places of Peel Street and White Street. The proposed sign is, therefore, signage to which Chapter 3 applies.

5. Part 3.3 of Chapter 3 of the SEPP deals with advertisements. Section 3.7 specifies the advertisements to which Part 3.3 applies, being “all signage to which this Chapter applies” other than four specified types of signs, none of which are relevant to the proposed signage. The proposed sign is signage to which Chapter 3 of the SEPP applies, and is not one of the excluded types of signs, so that it is signage to which Part 3.3 applies.

6. Section 3.9 of the SEPP provides that a person must not display an “advertisement”, except with the consent of the consent authority or except as otherwise provided by Chapter 3. An “advertisement” is defined in s 3.2(1) of the SEPP to mean “signage to which Part 3.3 applies and includes any advertising structure for the advertisement.” As earlier noted, the proposed sign is signage to which Part 3.3 applies.

7. The Council is the consent authority for the proposed advertisement (s 3.10(a) of the SEPP). Section 3.11 of the SEPP provides that a consent authority must not grant consent to an application to display an advertisement to which Chapter 3 applies unless the advertisement or the advertising structure:

“(a) is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and

(b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 5 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(c) satisfies any other relevant requirements of this Chapter.”

8. Amongst the other relevant requirements of Chapter 3 are the requirements for particular advertisements specified in Division 3 of Part 3.3. Two provisions are of relevance, s 3.19 dealing with roof or sky advertisements and s 3.20 dealing with wall advertisements.

9. Each of these particular advertisements is defined in s 3.2(1) of the SEPP. A “roof or sky advertisement” is defined to mean “an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building.” A “wall advertisement” is defined to mean “an advertisement that is painted on or fixed flat to the wall of a building, but does not include a special promotional advertisement or building wrap advertisement.”

10. The Council contended, and Barr Property disputed, that the proposed sign was both a roof or sky advertisement and a wall advertisement. The Commissioner found that the proposed sign was neither a roof or sky advertisement ([40] of the Commissioner’s judgment) nor a wall advertisement ([41]-[42]). The Council submitted that the Commissioner misconstrued the definitions of “roof or sky advertisement” and “wall advertisement”, leading to the Commissioner erring on a question of law in finding that the proposed sign was neither a roof or sky advertisement nor a wall advertisement.

11. The Council contended that the Commissioner’s mischaracterisation of the proposed sign affected the Commissioner’s finding that the requirements of s 3.19(1) and s 3.20(2) of the SEPP did not apply: [43], [44].

12. Section 3.19(1) provides:

“(1) The consent authority may grant consent to a roof or sky advertisement only if—

(a) the consent authority is satisfied—

(i) that the advertisement replaces one or more existing roof or sky advertisements and that the advertisement improves the visual amenity of the locality in which it is displayed, or

(ii) that the advertisement improves the finish and appearance of the building and the streetscape, and

(b) the advertisement—

(i) is no higher than the highest point of any part of the building that is above the building parapet (including that part of the building (if any) that houses any plant but excluding flag poles, aerials, masts and the like), and

(ii) is no wider than any such part, and

(c) a development control plan is in force that has been prepared on the basis of an advertising design analysis for the relevant area or precinct and the display of the advertisement is consistent with the development control plan.”

13. Section 3.20(2) provides:

“(2) The consent authority may grant consent to a wall advertisement only if—

(a) the consent authority is satisfied that the advertisement is integrated with the design of the building on which it is to be displayed, and

(b) for a building having—

(i) an above ground elevation of 200 square metres or more—the advertisement does not exceed 10% of the above ground elevation, and

(ii) an above ground elevation of more than 100 square metres but less than 200 square metres—the advertisement does not exceed 20 square metres, and

(iii) an above ground elevation of 100 square metres or less—the advertisement does not exceed 20% of the above ground elevation, and

(c) the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards require a greater protrusion, and

(d) the advertisement does not protrude above the parapet or eaves, and

(e) the advertisement does not extend over a window or other opening, and

(f) the advertisement does not obscure significant architectural elements of the building, and

(g) a building identification sign or business identification sign is not displayed on the building elevation.”

14. The Council contended, and Barr Property conceded, that if the proposed sign was a “roof or sky advertisement”, so that s 3.19(1) did apply, not all of the requirements in s 3.19(1) are able to be satisfied so as to empower the consent authority to grant consent to the proposed sign. The parties accepted that there is no development control plan satisfying s 3.19(1)(c).

15. Accordingly, if the proposed sign is a roof or sky advertisement, the Commissioner, exercising on appeal the function of the consent authority, had no power to grant consent to the proposed sign, unless compliance with the requirement in s 3.19(1)(c) is amenable to be dispensed with by upholding an application under cl 4.6 of the LEP. Insofar as the Commissioner did grant consent to the proposed sign without upholding an application under cl 4.6 of the LEP, he acted outside power.

16. The Council contended that if the proposed sign was also a wall advertisement so that s 3.20(2) did apply, the proposed sign did not comply with all of the requirements in s 3.20(2), including (c) as the advertisement protrudes more than 300mm from the wall of the building, and (g) as there is already a building identification sign or business identification sign displayed on the building elevation. The Council accepted that these requirements may be amenable to being dispensed with by upholding an application under cl 4.6 of the LEP. However, Barr Property had not applied under cl 4.6 of the LEP for any variation of any requirement of s 3.20(2) of the SEPP. Accordingly, insofar as the Commissioner did grant consent to the proposed sign, he acted beyond power.

17. The Council’s appeal under s 56A(1) of the Court Act, therefore, boils down to a dispute about the proper interpretation of the definitions of “roof or sky advertisement” and “wall advertisement” and their application in determining the operation of s 3.19 and s 3.20 of the SEPP with respect to the proposed sign.

The interpretation of “roof or sky advertisement”

18. The proposed sign is an above-awning, digital sign measuring 2100mm high and 8000mm wide. It is to be fixed above the shop awning on the walls of the chamfered, three-sided, corner of the building known as the Tamworth Square Shopping Centre. The sign will be mounted on a structure that curves around the chamfered corner of the building. As a consequence, the sign sits away from the walls of the building at different distances, ranging from 420mm at either end of the sign to 1170mm at the apex of the curve.

19. To accommodate the installation of the structure on which the sign is to be mounted, and the large size of the sign, Barr Property proposed to increase the height of the parapet wall by 1150mm above the height of the existing parapet of RL 385.028 to a height of RL 386.178. The proposed sign (with a height of 2100mm) would be installed mostly on the existing wall of the building, but it would extend 380mm above the existing parapet and be 770mm below the top of the new parapet.

20. On these facts, the Commissioner found that the proposed sign could not be described as being a roof or sky advertisement for two reasons. The first reason was that the proposed sign would not be “wholly displayed on the parapet” (at [40]), so as to be within the first phrase of the definition “displayed on… the parapet”. The Commissioner referred to the structural drawing that showed the proposed sign to be “fixed to both a portion of the wall of the Shopping Centre and the new parapet proposed”: at [40]. The Commissioner construed the phrase “displayed on” in the definition of “roof or sky advertisement” to mean “wholly displayed on”. As the proposed sign would not be wholly displayed on the parapet but mostly displayed on the wall of the building below the parapet, it did not satisfy this criterion.

21. The Commissioner’s second reason was that the proposed sign would not be erected “on or above” the new parapet, as it would be 770mm below the top of the new parapet. The Commissioner construed the word “on” in the phrase “erected on or above, the parapet” as implying that the sign must be “fixed atop the parapet”: at [40].

22. The Council submitted that the Commissioner erred in his construction of these phrases in the definition of “roof or sky advertisement”. In particular, the Council submitted that the Commissioner misconstrued the preposition “on” in these phrases. The Council submitted that the preposition “on” was not restricted to meaning “atop” but could include “on the outside face of”. This meaning is especially applicable where the preposition “on” is used in the first phrase “displayed on”. The Council referred to the wide meaning of “display” in s 3.2(1) of the SEPP as including “the erection of a structure for the purposes of displaying and the use of land, or a building on land, for the purposes of display”. For the proposed sign, the structure on which the sign would be mounted would be fixed to the wall of both the building and the parapet and the advertisement will be displayed on that sign on the parapet. In these circumstances, the proposed sign will be “displayed on” the parapet.

23. The Council likewise submitted that the preposition “on” in the phrase “erected on or above, the parapet” is wide enough to include an advertisement or advertising structure erected on the outer face of the wall of the parapet, and does not limit the advertisement or advertising structure to being erected “atop” the parapet.

24. The Council submitted that no assistance is to be gained from the description of this particular advertisement as a “roof or sky advertisement”. To adopt a construction of the definition on the basis that the expression defined includes the words “roof” and “sky” would be contrary to the High Court’s admonition in Owners of ‘Shin Kobe Maru’ v Empire Shipping Co Inc (1994) 181 CLR 404 at 419 against construing definitions in statutes by reference to the meaning of the words in the defined expressions.

25. Barr Property contested the Council’s construction of the definition of “roof or sky advertisement.” Barr Property supported the Commissioner’s construction of the word “on” in the phrases “displayed on” and “erected on or above” the parapet as meaning “atop” the parapet. Barr Property submitted this construction allows for the separate operation of the definition of “roof or sky advertisement” and “wall advertisement.” An advertisement which is displayed on or fixed to the wall of a parapet will be a wall advertisement, provided it satisfies the requirement of being “painted on or fixed flat to the wall of a building.” An advertisement that is displayed or erected on top of the wall of a parapet will be a roof or sky advertisement.

26. Barr Property supported this textual construction of the definition by reference to other provisions of the SEPP, including s 3.19(1) and s 3.20(2) of the SEPP. Barr Property also referred to Pearlman CJ’s decision in Forma Holdings Pty Ltd v Minister for Urban Affairs and Planning (2000) 109 LGERA 391; [2000] NSWLEC 113 at [21] that a sign “erected on or above” the roof or parapet of a building refers to a sign being erected “higher than” the roof or parapet.

27. This contest in statutory interpretation of the two phrases “displayed on” and “erected on or above”, is a contest as to the meaning in which the preposition “on” is used in the phrases. The word “on” can bear multiple meanings, depending on the sentence in which it is used. The Macquarie Dictionary, for example, gives 45 different meanings. The multiple meanings of the word “on” is a product of its function as a preposition.

28. A preposition is “one of the major form-clauses, or parts of speech, comprising words placed before nouns to indicate their relation to other words or their function in the sentence”: Macquarie Dictionary. A preposition is a form of connector word, connecting words in a sentence to a noun that follows the preposition. The manner of connection will depend on the noun that follows the preposition as well as the other words in the sentence to which connection is made.

29. In the two phrases in the definition of “roof or sky advertisement”, the nouns which the preposition “on” precedes are “the parapet or eaves of a building.” “Parapet” is used in this phrase in the sense of “any protective wall or barrier at the edge of a balcony, roof, bridge, or the like”: Macquarie Dictionary. A parapet comprises the three visible sides of the wall of the parapet – the outer face, the inner face and the top of the parapet. The word “eaves” is used in this phrase in the sense of “the overhanging lower edge of a roof”: Macquarie Dictionary.

30. The words in the definition of “roof or sky advertisement” that the preposition connects to these nouns of “parapet” and “eaves” are the noun “an advertisement” and the verbs, expressed as past participles, “displayed” and “erected”. The preposition “on” indicates the relationship between these words and the nouns of “parapet” and “eaves”. Each relationship is different, not only because the verbs differ, but also because of the wide meaning of the noun “advertisement”. This leads to the preposition “on” serving different functions, and hence having different meanings, in the two phrases in which it is used.

31. In the second phrase, “erected on or above”, the verb “to erect” is used in the sense of “to build; construct; raise; to erect a house” or “to raise and set in an upright for perpendicular position: to erect a telegraph pole”: Macquarie Dictionary.

32. The object of the action of erection is “an advertisement”. An “advertisement” is defined in s 3.2(1) of the SEPP to mean “signage to which Part 3.3 applies and includes any advertising structure for the advertisement”. “Signage” also is defined to include “any structure… that is principally designed for, or that is used for, the display of signage.” Hence, the word “advertisement”, when used as the object of the action of erection, refers to a structure that is capable of being erected in the sense that that verb is used in the definition of “roof or sky advertisement.”

33. The preposition “on”, as well as the preposition “above”, in the phrase “on or above”, indicate different relationships of the noun “advertisement” and the verb “erected” with the nouns “parapet” and “eaves”. The preposition “above” indicates a relationship of being “in or to a higher place than”: Macquarie Dictionary. The advertisement, which includes the advertising structure for the advertisement, is to be erected higher than the parapet or eaves of the building. The preposition “on”, however, indicates a different relationship of being in a “position above or in contact with a supporting surface: on the table”: Macquarie Dictionary. The advertisement, which includes the advertising structure, is to be erected in a position above and in contact with the supporting surface of the parapet or the eaves of the building.

34. The Commissioner did not err, therefore, in his construction of the second phrase “erected on or above” the parapet in the definition of “roof or sky advertisement”. The Commissioner found that the preposition “on” in the phrase “erected on or above” the parapet implied a sign “fixed atop the parapet”. That is the relationship that the preposition “on” signifies the words “advertisement” and “erected” have with “parapet”.

35. The proposed sign will not be erected in either position, as it will be fixed to the wall of the building in a position where the top of the sign is 770mm below the top of the new parapet. The Commissioner did not err in finding that the proposed sign would not be erected on or above the parapet.

36. I find, however, that the Commissioner did err in his construction of the first phrase “displayed on” in the definition of “roof or sky advertisement”. The preposition “on” in this phrase is used in the different sense of simply being in “contact with any surface: the picture on the wall: Macquarie Dictionary. This different relationship between “an advertisement” and “the parapet or eaves” is a product of the different verb “displayed”. The word “display” is defined in s 3.2(1) in an inclusive manner to include “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.” The object of the action of display is “an advertisement”, the meaning of which is given in s 3.2(1) of the SEPP to include signage and any advertising structure for the advertisement. “Signage” is defined to include “all signs, notices, devices, representations and advertisements that advertise or promote any goods services or events.”

37. Although the display of an advertisement on the parapet or eaves of a building can involve the erection of a structure for the purposes of display, it can also involve simply the use of the parapet or eaves of the building for the purposes of display. An advertisement may therefore be displayed on the parapet of a building by, amongst other ways, the advertisement being erected on the top of the parapet or on the outer face of the wall of the parapet or by the outer face of the wall of the parapet otherwise being used for the purposes of display of the advertisement.

38. If an advertisement is displayed on the parapet in one of these ways, it will fall within the phrase “displayed on” in the definition of “roof or sky advertisement.” The definition does not mandate that the advertisement be “wholly” displayed on the parapet. An advertisement displayed partly on a parapet wall and partly on the wall of the building below the parapet will still answer the description of being an advertisement displayed on the parapet of the building. The Commissioner erred in construing the phrase “displayed on” as requiring the advertisement to be “wholly displayed on” the parapet.

39. The Commissioner also erred in construing the definition of “roof or sky advertisement” so as to avoid overlap with the definition of “wall advertisement”: at [40]. Roof or sky advertisements and wall advertisements are two types of particular advertisements specified in Division 3 of Part 3.3. But there is no express or implied indication that an advertisement cannot fall within more than one of the types of particular advertisement in Division 3. The criteria for specification of the particular advertisements in Division 3 vary, being sometimes the location of the land on which the advertisement is displayed (such as advertisements being on rural or non-urban land in s 3.13, transport corridor land in s 3.14, within navigable waters in s 3.25, or on trailers parked on or visible from roads in s 3.26); sometimes the size or height of the display area of the advertisement (such as bring greater than 20m2 or higher than 8m above ground in s 3.15 or being greater than 45m2 in s 3.17); sometimes a combination of both of these criteria (such as the advertisement being greater than 20m2 and within 250m of and visible from a classified road in s 3.16); sometimes the nature and content of the advertisement (such as a name or logo in s 3.18 or special promotional advertisements in s 3.23); and sometimes the building or part of a building on which the advertisement is displayed (such as roof or sky advertisement in s 3.19, wall advertisements in s 3.20, advertisements on bridges in s 3.22 or building wrap advertisements in s 3.24).

40. Because these criteria for particular advertisements differ, an advertisement may satisfy the criteria for more than one of these types of particular advertisements. That possibility is provided for in the SEPP. Section 3.27 of the SEPP provides that:

“If more than one provision of this Division is capable of applying to the display of an advertisement, each such provision applies.”

41. Accordingly, the definition of one particular advertisement, “roof or sky advertisement”, is not to be construed so as to avoid any overlap with any other particular advertisement, including “wall advertisement”.

42. For these reasons, the Commissioner erred in his construction of the phrase “displayed on” in the definition of “roof or sky advertisement” as requiring the advertisement, firstly, to be “wholly displayed on the parapet” and secondly, to be “atop the parapet”. An advertisement that is displayed on the wall of the parapet, even if also displayed on the wall of the building below the parapet, is capable of being a roof or sky advertisement within the definition.

The interpretation of “wall advertisement”

43. As previously stated, a “wall advertisement” is defined in s 3.2(1) to mean “an advertisement that is painted on or fixed flat to the wall of a building” but does not include two particular advertisements specified in Division 3 of Part 3.3 of special promotional advertisement or building wrap advertisement.

44. The proposed sign is a digital sign for the display of advertisements mounted on a structure to be fixed to the wall of the building. The proposed sign does not fall within the first limb of this definition as it is not “painted on” the wall of the building. The issue in the case was whether the proposed sign fell within the second limb of this definition of being “fixed flat to the wall of a building”.

45. The Commissioner found that the proposed sign would not be “fixed flat” to the wall of the building for two reasons. First, the Commissioner found that the proposed sign will protrude more than 300mm from the wall of the building. The Commissioner acknowledged that, on one view, “any method of fixing of a sign or advertisement of any kind is likely, because of the travel of structural forces at play in the structure, to be generally ‘fixed flat’”: at [42](1).

46. By this statement I take it the Commissioner was acknowledging that the method of fixing an advertisement or advertising structure for an advertisement to the wall of a building will vary depending on the particular advertisement, the particular wall of the building, and the structural forces at play in fixing an advertisement of that kind to a wall of that kind. Different methods of fixing an advertisement to a wall of a building will result in different spatial relationships of the advertisement to the wall of the building. Some methods of fixing might result in an advertisement being closer to the wall of a building than other methods of fixing. Yet, the advertisements fixed by these different methods might all be able to be said to be “fixed flat” to the wall of the building in the sense that they are as close to the wall of the building as the structural forces at play in the advertisement and the wall allow.

47. The Commissioner, however, went on to qualify this general proposition by interpreting the term “fixed flat” in the definition of “wall advertisement” to require that the advertisement, including any advertising structure for the advertisement, not protrude from the wall of the building by more than 300mm: see [42](2). The Commissioner derived this qualification from the requirement in s 3.20(2)(c) that “the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards require a greater protrusion.” As the proposed sign will protrude more than 300mm from the wall of the building, the Commissioner found the sign will not be fixed flat to the wall of the building.

48. The Commissioner’s second reason for finding that the proposed sign will not be “fixed flat” to the wall of the building was that “neither the structure nor the sign adopts the alignment of the wall or walls on which the sign is affixed but rather a curved geometry that is wholly independent of the alignment of the wall… and at times projecting up to 1170mm beyond the face of the wall”: [42](2). In this circumstance, the proposed sign “cannot be described as being fixed flat to the wall or walls on which it is fixed”: [42](2).

49. The Council submitted the Commissioner misconstrued the phrase “fixed flat to the wall of the building” in the definition of “wall advertisement”. The Council noted that “advertisement”, “advertising structure” and “signage” are defined in s 3.2(1) of the SEPP to include the structure that is principally designed for, or that is used for, the display of the advertisement. As a consequence, provided the advertising structure is fixed flat to the wall of the building, the advertisement will be fixed flat to the wall of the building.

50. The Council noted that the Commissioner appeared to have accepted this proposition, but impermissibly added the qualification that the advertisement, including any advertising structure for the advertisement, cannot protrude from the wall of the building by more than 300mm, which he derived from the requirement in s 3.20(2)(c) of the SEPP. The Council submitted the Commissioner erred in reading the phrase “fixed flat to the wall of a building” in the definition of “wall advertisement” as being qualified by a requirement in a different provision regulating the grant of consent to a wall advertisement.

51. Nevertheless, the Council submitted the Commissioner was correct to interpret the definition of “wall advertisement” as including not only an advertisement which itself is fixed flat to the wall of a building but also an advertisement mounted on an advertising structure that is principally designed for, or that is used for, the display of the advertisement, which is fixed flat to the wall of a building.

52. The Council submitted the latter situation applies to the proposed sign. The proposed sign is to be mounted on a metal framing structure that is to be fixed to the wall of the building. The method of fixing the structure to the wall is by inserting four metal rods that are part of the structure into the wall, where they will be attached to metal plates inside the wall. The wall will be structurally reinforced by additional web stiffeners and diagonal struts to bear the weight of the proposed sign and supporting structure. This method of fixing the proposed sign and supporting structure to the wall of the building will result in the advertising display area of the curved digital screen protruding from the wall of the building by 420mm at either end of the screen and 1170mm at the apex of the curve of the screen. The Council submitted, however, that this protrusion of the proposed sign from the wall does not detract from the fact that the proposed sign is fixed flat to the wall of the building at the points at which the structure for the sign is attached to the wall.

53. Barr Property contested the Council’s construction, and supported the Commissioner’s construction, of the definition of “wall advertisement”. Barr Property submitted that the requirement in the definition that the advertisement be “fixed flat” to the wall of the building applies to both the signage and the advertising structure for the signage. The definitions of “advertisement” and “signage” include both the signage and the advertising structure for the signage. Inserting those expansive definitions into the definition of “wall advertisement” results in the definition requiring that not only the structure for the display of an advertisement, but also the advertisement itself, need to be fixed flat to the wall of the building. This is an essential criterion for the advertisement to be a wall advertisement.

54. However, Barr Property noted, the proposed sign does not satisfy this essential criterion. The proposed sign is to be mounted on the frame of the structure and will protrude from the wall of the building, at the apex of the curve of the digital screen, by 1170mm. The signage is therefore not “fixed flat” to the wall of the building.

55. As with the definition of “roof or sky advertisement”, this contest as to the interpretation of the definition of “wall advertisement” is to be resolved by ascertaining the meaning of the phrase “fixed flat to the wall of a building” in that definition. This necessitates construing the phrase in the context of the full sentence in the definition.

56. The object of the actions of painting on or fixing flat to the wall of a building is “an advertisement”. As previously noted, an “advertisement” is defined in s 3.2(1) of the SEPP to mean “signage to which Part 3.3 applies and includes any advertising structure for the advertisement”. “Signage” itself is broadly defined to mean “all signs, notices, devices, representations and advertisements that advertise or promote any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage….” An “advertising structure” means “a structure or vessel that is principally designed for, or that is used for, the display of an advertisement.”

57. Read in the context of the definition of “wall advertisement”, the actions of painting on or fixing flat to the wall of a building pick up different aspects of the definitions of “advertisement”, “signage” and “advertising structure”. The action of painting an advertisement on the wall of a building only picks up those aspects of “advertisement” and “signage” that are capable of being “painted on” the wall of a building and not any structure for the display of signage, including an advertising structure. The action of fixing flat an advertisement to the wall of a building, however, picks up those aspects of “advertisement” and “signage” that are capable of being “fixed” to the wall of a building, including any structure for the display of signage, such as an advertising structure.

58. The proposed sign in this case comprises both aspects of the definitions of “advertisement” and “signage”, being both signage that advertises or promotes any goods, services or events and a structure that is used for the display of the signage.

59. The action of fixing flat to the wall of a building an advertisement that comprises both signage and an advertising structure for the display of the signage can be undertaken by fixing flat the advertising structure; the signage itself does not need to be fixed flat to the wall of the building. Indeed, signage that is mounted and displayed on a structure may not itself be capable of being fixed flat to the wall of a building; only the structure for the display of the signage may be capable of being fixed flat to the wall of a building.

60. This construction of the definition of “wall advertisement” is supported by one of the requirements in s 3.20(2) of the SEPP in order for the consent authority to grant consent to a wall advertisement. Under s 3.20(2)(c) the consent authority may grant consent to a wall advertisement only if “the advertisement does not protrude more than 300 millimetres from the wall, unless occupational health and safety standards requiring greater protrusion.” The existence of this requirement evidences that an advertisement can protrude from the wall of a building and still satisfy the definition of “wall advertisement”. Put another way, the requirement in the definition of “wall advertisement” that an advertisement be “fixed flat” to the wall of a building cannot require that both the signage and the advertising structure for the display of the signage be fixed flat to the wall of the building because otherwise the requirement in s 3.20(2)(c) regulating the grant of consent to a wall advertisement could never apply.

61. In the case of the proposed sign, therefore, the relevant inquiry is whether the structure on which the proposed sign is to be mounted and displayed can be said to be fixed flat to the wall of the building.

62. The verb “to fix” is used in the definition of “wall advertisement” in the sense of “to make fast, firm or stable”: Macquarie Dictionary. The word “flat” functions as an adverb to modify the verb “fixed”, not an adjective to modify the noun “advertisement”. It is the action of fixing, not the advertisement which is the object of that action of fixing, which needs to be “flat”.

63. The adverbial element “flat” expresses the spatial relationship between the advertisement and the wall of the building as a result of the action of fixing the advertisement to the wall. This relationship is that the advertisement is flat on or against the wall. One of the meanings of “flat” is “lying wholly on or against something: a ladder flat against a wall”: Macquarie Dictionary. Although this dictionary meaning of flat does refer to lying “wholly” on or against something, the example given of this meaning speaks against the need for the object to lie “wholly” on or against something. The whole length of a ladder cannot lie on or against a wall without falling over; the legs and lower part of the ladder need to be placed away from the wall in order for the ladder to lie on or against the wall.

64. In the context of the sentence in the definition in which the adverb “flat” is used, it does not require the whole of the advertisement to be on or against the wall of the building. As I have noted, it is the action of fixing that must result in the advertisement being flat to the wall. Achieving this spatial relationship depends on the method of fixing the advertisement to the wall of the building.

65. The method of fixing an advertisement to the wall of a building will vary depending on the particular advertisement, the particular wall of the building, and the structural forces at play in fixing an advertisement of that kind to a wall of that kind. The definitions of “advertisement”, “signage” and “advertising structure” are broad enough to include advertisements, and advertising structures for the advertisements, of widely different natures, sizes, weights and other features. So too, the walls of buildings to which advertisements may be fixed will vary greatly in nature, condition, materials and manner of construction. As a consequence, the structural forces at play in fixing one kind of advertisement to one kind of wall of a building will vary from the structural forces at play in fixing another kind of advertisement to another kind of wall of a building. Different methods of fixing an advertisement to a wall of a building are required to address the different structural forces at play. The method selected must achieve the purpose of making fast, firm or stable the advertisement on the wall.

66. For example, the method of fixing a small, lightweight, static display sign, which does not need any structure to display the sign, to a masonry wall of a building will be far simpler and less intrusive than the method of fixing a large, heavy, digital display sign, which needs to be mounted on an equally large, heavy and strong metal structure, to such a masonry wall of a building. Any difference in the method of fixing an advertisement to the wall of a building necessarily will result in a difference in the spatial relationship of the advertisement to the wall. In the example given, the smaller sign could be fixed closer to the wall of the building than the larger sign could be fixed to the wall of the building. Yet, both signs might be able to be said to be “fixed flat” to the wall of the building, in the sense that each sign is fixed as close to the wall of the building as the structural forces at play allow the sign to be fixed.

67. The consequence is, therefore, that the requirement in the definition of “wall advertisement” that an advertisement be “fixed flat” to the wall of a building can be satisfied differentially, depending on the facts and circumstances of the particular advertisement, wall of the building and method of fixing.

68. In this case, the structure on which the proposed sign is to be mounted and displayed will be “fixed” to the wall of the building in the sense that the structure will be made fast, firm and stable by attaching it to the wall of the building by inserting the metal rods of the structure into the wall, where they will be secured by metal plates and additional web stiffeners in the wall.

69. But will the structure be fixed “flat” to the wall of the building? The metal frame of the structure, other than the four rods of the structure that are fixed to the wall, will sit away from the outer face of the wall at either end of the curved digital screen by around 265mm (the distance from the wall to the outer face of the digital screen of 420mm less the combined depth of the screen and the frame of the structure of 155mm). Whilst this distance of 265mm means that the whole of the metal frame of the structure is not on or against the wall, the four rods of the metal frame are, of course, fixed to the wall.

70. This method of fixing the metal frame of the structure to the wall of the building was presumably designed to address the structural forces in play by fixing this particular advertisement and its supporting structure to this particular wall. As a consequence, the metal frame of the structure might be fixed as close to the wall of the building as is structurally appropriate. In these circumstances, it would have been open to the Commissioner to find that this particular advertisement would be “fixed flat” to the wall of the building. It is not necessary to decide this question on this appeal which is limited to an error on a question of law. It is sufficient to find that the Commissioner erred in construing the phrase “fixed flat” as precluding this finding that the advertisement would be fixed flat to the wall of the building.

71. In summary, the Commissioner erred in his construction and application of the definition of “wall advertisement” in [42] of the judgment in two ways. First, the fact that the advertisement, including the advertising structure, will protrude more than 300mm from the wall of the building might be relevant to whether the consent authority may grant consent to the advertisement under s 3.20(2)(c) of the SEPP, but it does not prevent the advertisement from falling within the definition of “wall advertisement”. The requirement in the definition that the advertisement be “fixed flat” to the wall of a building does not preclude an advertisement that protrudes from the wall of a building, including by more than 300mm.

72. Secondly, the fact that neither the proposed sign nor the structure on which the sign will be mounted and displayed will adopt the alignment of the chamfered walls of the building, but rather will have a curved geometry, does not preclude the sign from being a wall advertisement within the definition of “wall advertisement”. The requirement in the definition that the advertisement be “fixed flat” to the wall of the building qualifies the fixing of the advertisement to the wall of the building, not the advertisement itself – the advertisement does not need to be flat. The advertisement can be “fixed flat” to the wall of a building by the structure used for the display of the advertisement being fixed flat to the wall of the building - the advertisement itself does not need to be fixed flat to the wall of a building. Whether the advertisement or any structure for the display of the advertisement is fixed flat to the wall of the building is a question of fact and degree, which will depend on the facts of the particular advertisement, including any advertising structure for the advertisement, the particular wall of the building and the structural forces at play in fixing an advertisement of that kind to a wall of that kind.

73. The Commissioner’s errors in construction of the definition of “wall advertisement” affected his finding that the proposed sign could not be a wall advertisement within this definition.

Disposal of the appeal

74. The Council has established that the Commissioner erred in his construction and application of the definitions of “roof or sky advertisement” and “wall advertisement”. The appeal should be upheld and the Commissioner’s decision and orders set aside.

75. The Council submitted that if it were to succeed in establishing that the Commissioner erred in his construction and application of “roof or sky advertisement”, the Court should dismiss Barr Property’s appeal against the Council’s decision to refuse consent to the development application, rather than remitting the matter to be re-determined by the Commissioner. The Council submitted that the Commissioner would have no power to grant consent to the proposed sign if it is a roof or sky advertisement as the requirement in s 3.19(1)(c) of the SEPP cannot be satisfied. There is no development control plan in force as required by s 3.19(1)(c) of the SEPP.

76. I consider it is appropriate to remit the proceedings to the Commissioner to give Barr Property an opportunity on the remitter to make four applications, if it wishes to do so. The first application would be to apply to amend the development application to amend the size of the sign or its location so that the sign is not displayed on, or erected on or above, the parapet of the building. Although the sign currently is proposed to be displayed mostly on the wall of the building below the parapet, it will also extend partly up the wall of the parapet. The sign could be reduced in height or moved lower so as to be displayed wholly on the wall of the building below the parapet. Such amendments would cause the advertisement not to be a roof or sky advertisement within the definition.

77. The second application would be to argue that the requirement in s 3.19(1)(c) of the SEPP is a development standard, compliance with which is amenable to be dispensed with by Barr Property making and the Court upholding an application under cl 4.6 of the LEP. That argument may or may not be successful, but I consider Barr Property’s appeal should not be dismissed without giving it an opportunity to make the argument if it wishes to do so.

78. The third application would be to argue that, on a proper construction of the definition of “wall advertisement” and on the facts as to the method of fixing the proposed sign to the wall of the building, the proposed sign is not a “wall advertisement”. I have found that the Commissioner erred in his construction of the definition of “wall advertisement”, which affected his finding that the proposed sign was not a wall advertisement. The Commissioner will need to reconsider this question, informed by the proper construction of the phrase “fixed flat” in the definition of “wall advertisement”.

79. The fourth application, if the proposed sign is a wall advertisement, would be to apply under cl 4.6 of the LEP to dispense with compliance with any requirement of s 3.20(2) of the SEPP. The Council accepted that if it succeeded in establishing that the Commissioner erred in his construction and application of the definition of “wall advertisement”, it would be appropriate to remit the matter to the Commissioner to consider the application of s 3.20(2) of the SEPP. The Council accepted that at least one of the requirements in s 3.20(2) of the SEPP, the requirement in s 3.20(2)(c) that the advertisement not protrude more than 300mm from the wall, might be a development standard, compliance with which may be amenable to be dispensed with by upholding an application under cl 4.6 of the LEP.

80. Remitter of the proceedings to the Commissioner is therefore appropriate to allow Barr Property to make any of these applications and the Commissioner to re-determine the matter on a correct understanding of the law and facts.

81. The parties accepted that the appropriate order as to the costs of the appeal is that costs follow the event.

82. The Court orders:

83. The appeal is upheld.

84. The decision and orders (2) to (5) of Commissioner Horton made on 8 May 2025 are set aside.

85. The proceedings are remitted to Commissioner Horton to be determined according to law and these reasons for judgment.

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

**********

Amendments

07 October 2025

Typographical error corrected in paragraph [21].