Whitehall Property Services Pty Limited v Randwick City Council

Environmental Planning and Assessment Act

1. Relevant sections of the EPA Act provide: Part 1 Preliminary … 1.4 Definitions (cf previous s 4) … environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. … Part 3 Planning instruments … Division 3.2 Environmental planning instruments - general … 3.28 Inconsistency between instruments (cf previous s 36) (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided: (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and (b) (Repealed) (c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind. (2), (3) (Repealed) (4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved. … Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. …

Statement of facts and contentions

1. A statement of facts and contentions filed on 14 November 2018 is as follows: PART B - CONTENTIONS The Council contends that the application should be refused for the following reasons: 1. The impact of the proposed area of illumination on surrounding areas The effect of illumination on nearby land can be adequately addressed through conditions of consent. 2. Dwell time and distraction The impacts on residents in terms of distraction and obtrusive effects can be adequately addressed with conditions of consent. 3. Aims of State Environmental Planning Policy No. 64 - Advertising and Signage The development application should be refused because the proposed development is inconsistent with the aims of State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64). Particulars a) Clause 3(1) of SEPP 64 states the Aims, Objectives of the Plan. The proposal fails to demonstrate that it is compatible with the desired amenity and visual character of an area, as required by Clause 3(1)(a)(i). b) The proposal fails to demonstrate that the location of the sign is suitable without creating an adverse impact on the surrounding built environment by reason of the visual impact and distraction caused by such a large and obtrusive structure that is inconsistent with the public domain and desired future character of the Kingsford town centre, as required by Clause 3(1)(a)(ii). c) The proposal fails to adequately demonstrate there will be a public benefit to such a bulky structure which will create an adverse visual impact on the streetscape along the Anzac Parade Corridor and is inconsistent with the provisions of Clause 3(1)(d) beyond the payment of fees for the duration of the permit period or the ability to display community and public safety messages. A compliant built form can just as easily facilitate such a narrow range of public benefits. d) The proposal is inconsistent with the provisions of Clause 3(1)(e) as it will result in the existing visual clutter being extended generally from the parapet level to the middle of the wall of a prominent building along Anzac Parade, creating a precedent that is contrary to the wider public interest. 4. Controls within State Environmental Planning Policy No. 64 - Advertising and Signage The development application should be refused because the proposed development is inconsistent with the specific controls of State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64). Particulars a) Clause 8 of SEPP 64 states that a Consent Authority must not grant development consent to an application to display signage unless the consent authority is satisfied: (a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1. b) The proposal is inconsistent with the aims and objectives of the SEPP as stated in Clause 3(1)(a), (d) and (e) and therefore in conflict with Clause 8. c) The proposal does not satisfy the Assessment Criteria contained in Schedule 1 insofar that: i. It is incompatible with the existing and desired future character of the area or locality. The town centre is of a traditional scale and form, largely comprised of a two storey street wall providing predominantly retail and restaurant/ food-related uses at ground level and commercial activities or small shop top dwellings at the first floor level. Where redevelopment has occurred to provide larger mixed use developments, it has retained the 2 storey street wall, which defines a vertical and horizontal break between the commercial/ retail activities and the residential uses above. These residential uses are provided in the form of multi-storey residential apartments that are generally set back from the street edge. The vertical and horizontal separation of these land uses serves to reinforce a clearly defined street edge and signage zone. This signage zone within the town centre is predominantly comprised of fascia, under awning and window signs at ground and first floor level. A sign of such a size, visual dominance and location above the clearly defined signage zone is neither a compatible or desirable element; ii. It is inconsistent with the particular intended theme for the Kingsford town centre, as expressed by the Draft Kensington and Kingsford Town Centre Planning Strategy; iii. It does not respect the viewing rights of other advertisers as it will establish an undesirable precedent by locating a structure that is of a size, function and form that is positioned above all other signs, creating a visually dominant sign; iv. The scale, siting, proportion and form is inconsistent with the existing and desired future streetscape, being located in such a manner as to create an undesirable precedent and setting for similar future applications which will effectively add to the existing visual clutter of advertising signs along the Anzac Parade corridor; v. It does not reduce clutter by rationalising or simplifying existing advertising, merely adding a structure that by virtue of its size and positioning above will result in an unacceptable visual dominance and adverse amenity to the surrounding area; vi. The proposal will project well above the general line of signage established by the predominantly two storey built scale of the commercial/retail properties within the town centre; vii. The proposed siting and visual dominance of the sign will have an unacceptable impact on the surrounding residents, pedestrians, other businesses and road users, resulting in an adverse level of safety and amenity. d) Clause 13(1) states that a consent authority must not grant consent unless it is consistent with the objectives of the SEPP and it is satisfied that the proposal is acceptable in terms of its impacts. e) The proposal is inconsistent with the aims and objectives of the SEPP as stated in Clause 3(1)(a), (d) and (e), as stated above and therefore in conflict with Clause 13(1)(a). f) The proposal does not result in acceptable impacts as stated above and is in conflict with Clause 13(1)(b). Accordingly, the Consent Authority must not grant consent. g) Clause 13(2) states that a consent authority must not grant consent to a sign that exceeds 20m2 and is within 250m of and visible from a classified road unless it is consistent with the objectives of the SEPP, it has assessed the proposal against the provisions of Schedule 1 and is satisfied that the proposal is acceptable in terms of its impacts. h) The proposal has not demonstrated a suitable level of public benefit to justify the provision of a sign with significant adverse impacts on the built environment or amenity outcomes for the surrounding locality. i) The consent authority must not grant consent to the proposal, which seeks consent for an advertisement that has a display area greater than 20m2 and is located greater than 8m above ground level, as it will not have an acceptable level of impact on the surrounding area and is therefore in conflict with the provisions of Clause 17(3) of the SEPP. j) The sign exceeds the size and distance criteria specified in Clause 18 of the SEPP and as previously stated, does not demonstrate the impacts will be acceptable. k) The consent authority must not grant consent to the proposal, which seeks consent for an advertisement that has a display area greater than 20m2 and is located greater than 8m above ground level, as it will not have an acceptable level of impact on the surrounding area and is therefore in conflict with the provisions of Clause 17(3) of the SEPP. 5. Public Benefit Test The development application should be refused because the applicant has failed to provide a sufficient level of public benefit, as deemed by Council. Particulars a) The parties have not reached an agreement as to the appropriate public benefit from the proposal. Although the applicant has proposed a yearly payment, the basis for the payment has not been justified or proposed as against the proposed benefit from the proposed sign. 6. Aims of the Randwick Local Environmental Plan 2012 The development application should be refused because the proposed development is inconsistent with the aims of the Randwick Local Environmental Plan 2012 (RLEP 2012). Particulars a) Clause 1.2 of the RLEP 2012 states the Aims of the Plan. The proposal fails to achieve a high standard of design in the public domain that enhances the quality of life of the community by reason of the unacceptable visual and illumination impacts and potential adverse safety impacts for residents, road users and pedestrians. 7. Objectives for the Kingsford Centre - Randwick Comprehensive Development Control Plan 2013 The development application should be refused because the proposed development is inconsistent with the objectives for the Kingsford Centre as contained in Part D2 of the Randwick Comprehensive Development Control Plan 2013 (RDCP 2013). Particulars a) The following objectives contained in Section 1.1 Objectives in Part D2 - Kingsford Centre are relevant to the proposal: i. To ensure development enhances the spatial definition and character of Anzac Parade, Gardeners Road and other streets and laneways within the Kingsford Centre. ii. To ensure quality design and minimise adverse impacts of development on the amenity of the adjoining and nearby residential zones. b) The existing character of the Kingsford Centre along Anzac Parade has been identified in Particular (a) to Contention 5 above. There is a clear distinction between the lower levels of commercial and retail development and residential development above. Advertising has been restricted to the commercial levels specifically to reduce visual clutter, to provide appropriate levels of identification and wayfinding for businesses and reinforce the commercial character, without having any adverse visual impacts on the upper level residential areas. c) By virtue of its position well outside the general signage area at street level, the proposal is visually incompatible with the streetscape and upper level residential character in the context of the existing and desired future character of the Kingsford Centre along Anzac Parade. d) The following objectives contained in Section 2.2 Non-Residential Uses and Ground Level Activation in Part D2 - Kingsford Centre are relevant to the proposal: i. To provide a range of commercial, retail and related uses to engage and activate the street and contribute to the economic viability of Kingsford Centre as a whole. ii. To ensure continuity of the shopping strip along the main streets of Kingsford Centre. e) The proposal seeks to provide an advertising sign in a location that is inconsistent with the established character of the Kingsford Centre, which provides a low-scale commercial context supported by advertisements and signs being attached to buildings related to that signage. This helps promote the identification of businesses and services available within the Centre and promote commercial activity and hence ongoing continuity and economic viability of the ground and first floor commercial activities of buildings. 8. Objectives for Outdoor Advertising and Signage - Randwick Comprehensive Development Control Plan 2013 The development application should be refused because the proposed development is inconsistent with the objectives for outdoor advertising and signage contained as contained in Part F2 of the Randwick Comprehensive Development Control Plan 2013 (RDCP 2013). Particulars a) The following objectives contained in Section 2 - General Design and Siting in Part F2 - Outdoor advertising and signage of the RDCP 2013 are relevant to the proposal: i. To facilitate well designed and suitably located signage that allows for the identification of a business, land use, or activity to which the signage relates. ii. To ensure that outdoor advertising is in keeping with the scale, character and architectural style or features of the building. iii. To ensure any outdoor advertising and signage does not adversely impact on the locality or cause any distraction to road users b) The proposal is inconsistent with the first objective in that it will not ensure advertising is limited to or relates to a business, land use or activity to which the signage relates. c) The proposal is inconsistent with the second objective because the location, size and nature is inconsistent with the established pattern, character and location of existing signage evident along Anzac Parade, which is limited to the commercial activities at ground and first floors of buildings and typically in the form of fascia, under awning and window signs at ground and first floor level. A sign of such a size, scale, visual dominance and location above the clearly defined signage zone is not in keeping with the existing features of the building to which it is to be attached or other similar mixed use development containing residential activities above a traditional two storey commercial/ retail base. d) The proposal is inconsistent with the third objective in that the location and size of the sign is inconsistent with the defined existing character as identified in Particular (c) above. 9. Specific Controls - Randwick Comprehensive Development Control Plan 2013 The development application should be refused because the proposed development is inconsistent with the specific controls contained within the Randwick Comprehensive Development Control Plan 2013 (RDCP 2013). Particulars a) The proposed sign is incompatible with the surrounding development given its size and height above ground and visual domination well above all other advertisements, which are predominantly comprised of fascia, under awning and window signs, having regard to Section 2, Control i) of Part F2 of the RDCP 2013. b) The proposed sign is in conflict with the provisions of Section 2, Control ix) of Part F2 of the RDCP 2013 in that it will involve a cycle of illuminated advertisements. c) The proposed sign is inconsistent with Objective (i) of Section 3.2 of Part F2 of the RDCP 2013 in that it does not reduce the complexity of the Anzac Parade streetscape or result in fewer signs, resulting in visual clutter and a dominating structure which will have an unacceptable visual impact on the surrounding locality. d) The proposed sign is inconsistent with Objective (ii) of Section 3.2 of Part F2 of the RDCP 2013 in that it does not serve to express or reinforce the established character of two storeys of commercial/ retail development with associated signage at those levels and residential development above, as described in Contention 5 above. e) The proposed sign is in conflict with Section 3.2, Control v) of Part F2 of the RDCP 2013 in that it will involve a flush wall sign that does not protect the visual amenity and value of either the existing or desired future streetscape of Anzac Parade. f) The proposed sign is in conflict with Section 3.2, Control vii) of Part F2 of the RDCP 2013 in that it will involve a flush wall sign located at an upper level of the building. The location of the sign is not a major focal point of the building and the sign will not advertise any arcades, plazas, and the like within it, nor will it provide a corporate identity for developments which contain a range of businesses within it. 10. Public Interest The development application should be refused because approval of the proposed development is not in the public interest having regard to the contentions raised in these proceedings and the nature of submissions received by the Respondent. Particulars a) The development application should be refused having regard to the broader public interest of providing development that meets minimum levels of design quality and minimises impacts to neighbouring developments. b) The development application should be refused because approval of the proposed development will establish an undesirable precedent for future development in the locality.
2. There is no need to consider contentions 1, 2 and 5 as the parties consider these can be resolved by appropriate conditions of consent if consent is granted. Contention 5 identifies the public benefit test has not been met but that issue has now been resolved.
3. The Applicant's reply to the contentions will be considered below.

Planning controls

1. A number of planning instruments are relevant to the control of advertising in this location.

State Environmental Planning Policy No 64 - Advertising and Signage

1. Relevant clauses of the State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64) provide: Part 1 Preliminary … 3 Aims, objectives etc (1) This Policy aims: (a) to ensure that signage (including advertising): (i) is compatible with the desired amenity and visual character of an area, and (ii) provides effective communication in suitable locations, and (iii) is of high quality design and finish, and (b) to regulate signage (but not content) under Part 4 of the Act, and (c) to provide time-limited consents for the display of certain advertisements, and (d) to regulate the display of advertisements in transport corridors, and (e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors. (2) This Policy does not regulate the content of signage and does not require consent for a change in the content of signage. 4 Definitions (1) In this Policy: advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement. advertising display area means, subject to subclause (2), the area of an advertisement or advertising structure used for signage, and includes any borders of, or surrounds to, the advertisement or advertising structure, but does not include safety devices, platforms or lighting devices associated with advertisements or advertising structures. advertising structure means a structure or vessel that is principally designed for, or that is used for, the display of an advertisement. … building identification sign has the same meaning as in the Standard Instrument. building wrap advertisement means an advertisement used in association with the covering or wrapping of: (a) a building or land, or (b) a building that is under construction, renovation, restoration or demolition, but does not include a wall advertisement. business identification sign has the same meaning as in the Standard Instrument. classified road means a road classified under Part 5 of the Roads Act 1993. … display includes 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. ... Guidelines means the provisions of the publication titled Transport Corridor Outdoor Advertising and Signage Guidelines approved by the Minister for the purposes of this Policy and published in the Gazette on the date on which State Environmental Planning Policy No 64 - Advertising and Signage (Amendment No 3) is published on the NSW legislation website. … road corridor means the following land: (a) land comprising a classified road or a road known as the Sydney Harbour Tunnel, the Eastern Distributor, the M2 Motorway, the M4 Motorway, the M5 Motorway, the M7 Motorway, the Cross City Tunnel or the Lane Cove Tunnel, and associated road use land that is adjacent to such a road, ... roof or sky advertisement means an advertisement that is displayed on, or erected on or above, the parapet or eaves of a building. signage means 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: (a) building identification signs, and (b) business identification signs, and (c) advertisements to which Part 3 applies, but does not include traffic signs or traffic control facilities. … wall advertisement means 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. … 7 Relationship with other environmental planning instruments In the event of an inconsistency between this Policy and another environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency. … Part 2 Signage generally 8 Granting of consent to signage A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied: (a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1. Part 3 Advertisements … Division 2 Control of advertisements 11 Requirement for consent A person must not display an advertisement, except with the consent of the consent authority or except as otherwise provided by this Policy. ... 13 Matters for consideration (1) A consent authority (other than in a case to which subclause (2) applies) must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires: (a) is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 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 Policy. (2) If the Minister for Planning is the consent authority or clause 18 or 24 applies to the case, the consent authority must not grant consent to an application to display an advertisement to which this Policy applies unless the advertisement or the advertising structure, as the case requires: (a) is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and (b) has been assessed by the consent authority in accordance with the assessment criteria in Schedule 1 and in the Guidelines and the consent authority is satisfied that the proposal is acceptable in terms of: (i) design, and (ii) road safety, and (iii) the public benefits to be provided in connection with the display of the advertisement, and (c) satisfies any other relevant requirements of this Policy. (3) In addition, if clause 18 or 24 applies to the case, the consent authority must not grant consent unless arrangements that are consistent with the Guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement. 14 Duration of consents (1) A consent granted under this Part ceases to be in force: (a) on the expiration of 15 years after the date on which the consent becomes effective and operates in accordance with section 83 of the Act, or (b) if a lesser period is specified by the consent authority, on the expiration of the lesser period. Division 3 Particular advertisements … 17 Advertisements with display area greater than 20 square metres or higher than 8 metres above ground (1) This clause applies to an advertisement: (a) that has a display area greater than 20 square metres, or (b) that is higher than 8 metres above the ground. (2) The display of an advertisement to which this clause applies is advertised development for the purposes of the Act. (3) The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless: (a) the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and (b) the application has been advertised in accordance with section 79A of the Act, and (c) the consent authority gave a copy of the application to RMS at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies. 18 Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road (1) This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road. (2) The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of RMS. (3) In deciding whether or not concurrence should be granted, RMS must take into consideration: (a) the impact of the display of the advertisement on traffic safety, and (b) the Guidelines. (c) (Repealed) (4) If RMS has not informed the consent authority within 21 days after the copy of the application is given to it under clause 17 (3) (c) (ii) that it has granted, or has declined to grant, its concurrence, RMS is taken to have granted its concurrence. (5) Nothing in this clause affects clause 16. (6) This clause does not apply when the Minister for Planning is the consent authority. … Schedule 1 Assessment criteria 1 Character of the area • Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? • Is the proposal consistent with a particular theme for outdoor advertising in the area or locality? 2 Special areas • Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas? 3 Views and vistas • Does the proposal obscure or compromise important views? • Does the proposal dominate the skyline and reduce the quality of vistas? • Does the proposal respect the viewing rights of other advertisers? 4 Streetscape, setting or landscape • Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape? • Does the proposal contribute to the visual interest of the streetscape, setting or landscape? • Does the proposal reduce clutter by rationalising and simplifying existing advertising? • Does the proposal screen unsightliness? • Does the proposal protrude above buildings, structures or tree canopies in the area or locality? • Does the proposal require ongoing vegetation management? 5 Site and building • Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located? • Does the proposal respect important features of the site or building, or both? • Does the proposal show innovation and imagination in its relationship to the site or building, or both? 6 Associated devices and logos with advertisements and advertising structures • Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed? 7 Illumination • Would illumination result in unacceptable glare? • Would illumination affect safety for pedestrians, vehicles or aircraft? • Would illumination detract from the amenity of any residence or other form of accommodation? • Can the intensity of the illumination be adjusted, if necessary? • Is the illumination subject to a curfew? 8 Safety • Would the proposal reduce the safety for any public road? • Would the proposal reduce the safety for pedestrians or bicyclists?
   • Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

Randwick Local Environmental Plan 2012

1. Relevant clauses of the Randwick Local Environmental Plan 2012 (RLEP) provide: Part 1 Preliminary … 1.2 Aims of Plan … (2) The particular aims of this Plan are as follows: (a) to foster a liveable city that is accessible, safe and healthy with quality public spaces and attractive neighbourhoods and centres, (b) to support a diverse local economy and business and employment opportunities for the community, (c) to support efficient use of land, vibrant centres, integration of land use and transport, and an appropriate mix of uses, (d) to achieve a high standard of design in the private and public domain that enhances the quality of life of the community, (e) to promote sustainable transport, public transport use, walking and cycling, (f) to facilitate sustainable population and housing growth, (g) to encourage the provision of housing mix and tenure choice, including affordable and adaptable housing, that meets the needs of people of different ages and abilities in Randwick, (h) to promote the importance of ecological sustainability in the planning and development process, (i) to protect, enhance and promote the environmental qualities of Randwick, (j) to ensure the conservation of the environmental heritage, aesthetic and coastal character of Randwick, Randwick Development Control Plan 2013 … Part 2 Permitted or prohibited development … 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. … Land Use Table … Zone B2 Local Centre 1 Objectives of zone • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To enable residential development that is well-integrated with, and supports the primary business function of, the zone. • To facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community. • To minimise the impact of development and protect the amenity of residents in the zone and in the adjoining and nearby residential zones. • To facilitate a safe public domain. … 3 Permitted with consent Boarding houses; Centre-based child care facilities; Commercial premises; Community facilities; Dwelling houses; Educational establishments; Entertainment facilities; Function centres; Group homes; Hostels; Information and education facilities; Medical centres; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Residential care facilities; Residential flat buildings; Respite day care centres; Restricted premises; Roads; Service stations; Shop top housing; Tourist and visitor accommodation; Any other development not specified in item 2 or 4. …

Randwick City Council Development Control Plan 2013

1. Relevant sections of the Randwick City Council Development Control Plan 2013 (RDCP) provide: Kingsford Centre D2 1 Introduction Kingsford Centre is one of Randwick City's key strip shopping centres. The centre straddles both sides of Anzac Parade, and extends from Barker Street in the north to Sturt Street and Gardener's Road in the south. Kingsford is vibrant with small supermarkets, banks, offices and a variety of restaurants and takeaway food shops. It is also popular at night, given the many restaurants and the presence of the South Juniors Rugby League Club. … 1.1 Objectives • To ensure quality design and minimise adverse impacts of development on the amenity of the adjoining and nearby residential zones … 2 Site Planning, Building Envelope and Design … 2.5 Façade Composition and Articulation Explanation Building façades can contribute to the character and image of the centre. The townscape of Kingsford Centre derives its character from building facades that incorporate a vertical emphasis and consistent parapet roof forms. While it is inevitable that changes will be made to individual buildings, it is desirable to ensure that such changes respect the built heritage and avoid a clash between old and new development. The existing multi-storey buildings in Kingsford Centre incorporate varying setbacks from the street boundaries. Some buildings have substantial front setbacks and as a result, vast blank walls prominently visible from the street would be created when the adjoining sites are redeveloped. A high quality and skilful treatment of these unavoidable blank walls is crucial to improve the streetscape of the centre. … Controls … iv) Large areas of blank, unrelieved walls visible from the public and private domain must be avoided. … vi) New development must minimise the creation of blank walls at the common boundaries or interface with the Kingsford Centre adjoining buildings. Where blank walls are unavoidable, they must be treated and articulated to achieve an appropriate presentation to the public domain. … 2.8 Materials and Finishes … Controls … iii) Large areas of primary colours must not be used. … Outdoor Advertising and Signage F2 … 2 General Design and Siting Explanation The design and location of outdoor advertising can have a significant effect on the environment. The following matters need to be considered in determining the design and location for outdoor advertising on a building: - architectural detailing - existing advertising - the amenity of the streetscape - heritage significance of the building(where relevant) Objectives • To facilitate well designed and suitably located signage that allows for the identification of a business, land use, or activity to which the signage relates. • To ensure that outdoor advertising is in keeping with the scale, character and architectural style or features of the building. • To ensure any outdoor advertising and signage does not adversely impact on the locality or cause any distraction to road users. Controls … iii) Signage should not obscure architecturally decorative details or features of buildings or dominate building facades. It should be placed on the undecorated wall surfaces or designed sign panels provided. … ix) Signage must not be flashing or animated. Note: Flashing or animated signs include mechanical moving signs, moving LED signs, video/television screens, projected laser advertising and other flashing, intermittently illuminated or sequenced lighting signs. 3 Signage based on land use zones … 3.2 Business Zones Explanation The greatest demand and pressure for outdoor advertising is experienced in commercial centres. There is usually a large number of businesses and activities competing for a limited amount of advertising space, each trying to ensure that their message has prominence over other activities, particularly those of a similar nature. These demands need to be carefully weighed up against the visual impact advertising can have, particularly in relation to the proliferation of advertising that can occur where building facades are obscured by signs. Objectives • To reduce the visual complexity of streetscapes by providing fewer, more effective signs. • To recognise that outdoor advertising can help to express the character of a commercial district or business centre Controls i) The size and shape of any signage must relate to the size of the building or space to which it is to be attached to or placed on. Larger building facades are capable of accommodating larger signs without detracting from the appearance of the building. ii) Signage must not dominate or obscure a building or its architectural features. Advertising should highlight and reinforce architectural details. iii) Roof signs and advertising structures must not project above the parapet of the building or that part of the building to which they are attached (including signs and bunting mounted on plant rooms or other roof structures). iv) Avoid fin signs, projecting wall signs and above awning signs (sitting on the awning). v) The visual amenity and value of streetscapes should be protected through careful consideration of proposals for flush wall signage. vi) On any building listed as a Heritage Item or situated in a Heritage Conservation Area outdoor advertising (projecting and flush) must not be located above awning level. vii) Upper level signs are best located at major focal points of a building only, to advertise arcades, plazas, etc…and to provide as corporate identity for developments which contain a range of businesses. viii) Outdoor advertising on or attached to buildings must align and relate to the architectural design lines on a building façade or, in the absence of architectural detail or decoration, relate to the design lines of adjacent buildings. …

Additional policy documents

1. SEPP 64 refers to guidelines in the dictionary and the Transport Corridor Outdoor Advertising and Signage Guidelines (the Guidelines) provide as follows: 2. Design issues … 2.3 Macro-scale planning principles … 2.3.2 Sign placement in transport corridors in urban areas Advertising structures within urban areas must be consistent with the general assessment criteria in Table 2 as well as any relevant requirements of SEPP 64. In particular, consideration must be given to the compatibility of the advertising proposal with the character of the urban area. As a guideline, advertising in urban areas should be restricted to rail corridors, freeways, tollways or classified roads: a. within or adjacent to strategic transport corridors passing through enterprise zones, business development zones, commercial core zones, mixed use zones or industrial zones b. within or adjacent to strategic transport corridors passing through entertainment districts or other urban locations identified by the local council in a relevant strategy as being appropriate for such advertising. Consideration must be given to the compatibility of advertising development with surrounding land uses and whether such advertising will impact on sensitive locations. For instance, placement of advertising along transport corridors should not result in increased visibility of signage in adjacent or surrounding residential areas. 2.4 Sign clutter controls Advertising structures should not be placed in a location that will result in visual clutter. Clutter can be a distraction to drivers, particularly where other signage such as directional or road safety signs are located. Clutter can make a streetscape or landscape visually unattractive. The viewing rights of adjacent advertisers must also be considered when placing advertisements near existing signage. What constitute, 'clutter', will differ depending on the location. For instance, in urban enterprise corridors and within entertainment districts, it is not uncommon to have multiple signs visible along a given sightline. When strategically placed, these signs can contribute to the urban fabric and promote city life in key areas. Clutter in this context may result however if there are too many signs or multiple messages placed on a single advertising site or location. Multiple advertisement signs in rural or natural areas or along freeways or tollways adversely impacts on visual amenity and road safety. The overall number of signs placed along a transport corridor should be minimised preferably with only one advertising sign visible in a given view. In assessing advertising proposals, the consent authority is to have regard to clutter: a. Multiple advertisements on a single block of land, structure or building should be discouraged as they contribute to visual clutter. b. Where there is advertising clutter, consideration should be given to reducing the overall number of individual advertisements on a site. Replacement of many small signs with a larger single sign is encouraged if the overall advertising display area is not increased. c. In rural areas, and along freeways and tollways, no more than one advertising structure should be visible along a given sightline.
2. The Council is undertaking a forward planning process for the Kingsford town centre (the Centre) area. There are two versions of the Draft Planning Strategy Kensington and Kingsford Town Centres (Draft Strategy) in the evidence dated December 2016 and January 2017. Relevant sections of the version dated December 2016 provide: Part B - The Town Centres … 5.3.3 Role of the Kingsford Town Centre Like Kensington, Kingsford is also designated as a village centre and performs a localised role with local retail and commercial services. The centre is very popular with students from UNSW given the close proximity to the campus. As detailed in the Draft Issues Paper released in March 2016, accommodation and food services (35%) and retail trade (28%) account for around 63% of ground floor space in the centre, which is twice that of Kensington, reinforcing the higher level of patronage in Kingsford15. Almost all of the accommodation and food services category consists of food and beverages premises, with limited accommodation floor space. There was an estimated 9% ground floor vacancy rate at the time of the Council's survey in 201616. Increased residential development will help drive localised activity within the precinct to help support local businesses and drive night-time activation. The town centre should be investigated to identify opportunities for student housing, co-working and innovation space, and larger sites suitable for a supermarket. … Part C - Vision and Strategies … 2.2 Vision for Kingsford Town Centre Kingsford will develop into an exciting and dynamic town centre continuing to draw on its rich multi-cultural identity. The town centre will provide a diverse offer of restaurants, cafes and retail shopping, set within a rejuvenated public domain that supports activation and social interaction. The town centre will be a safe and inclusive place to live, work and visit. Buildings will be designed to the highest quality incorporating a mix of apartments, laneway mews and affordable housing. Highly connected and accessible, the town centre will foster hubs of activity focused around the terminus at Kingsford Junction and Kingsford Mid-Town, the old heart of the [sic] Kingsford. The town centre will have a green focus and set a new performance benchmark for sustainability within the LGA through ESD targets, WSUD practices, public places with canopy trees and landscaping and support of sustainable transport modes such as the light rail, cycling and walking. The integrity of existing heritage and contributory buildings will continue to be respected and integrated, through high quality architectural design. Innovative business start-ups will be encouraged to provide a 'bridge' between research and business. … 6.0 Built Form … 6.4.2 Taller Building Forms … Kingsford Mid-Town Precinct A height limit of 54m (equivalent to 16 storeys, or a maximum of 18 storeys with demonstrated design excellence) is proposed for three corner sites adjacent to the Strachan Street light rail stop. Additional uplift is not proposed for O'Deas Corner (424-436 Anzac Parade) as the site is heritage listed under the RLEP 2012. The allowance of higher building forms will express the prominence of these corner sites in the old heart of Kingsford town centre. See Part D- Precinct Plan for further detail. … 9.5 Public Realm … Strategies Actions
3. Minimise visual clutter and create legible coherent streetscapes. a) Maximise the co-location of signage, lighting, banners and power poles onto multifunctional smart poles along Anzac Parade. b) Collaborate with the business chambers to develop a signage strategy that reflects the unique character of the town centres. This may include an Asian themed signage strategy for Kingsford town centre. c) Strengthen DCP 2013 controls relating to signage within the town centres by requiring that:

• New works involve the removal of unsympathetic signage where possible.
• All new signage be set below the street awning or awning fascia
• a signage plan is submitted as part of the redevelopment of key sites.

List of evidence

1. The evidence is as follows: 1. Joint expert planning report dated 22 January 2019 prepared by Mr Mead and Mr Brewer (Exhibit 2). 2. Joint expert lighting report dated 19 December 2018 prepared by Mr Shamier and Mr McLean (Exhibit 3). Before the making of this joint report, Mr Shamier prepared a lighting assessment dated 8 September 2016. This was reviewed by Mr McLean after which Mr Shamier prepared a revised report dated 7 June 2018 (Exhibit C). This report concludes that the proposed sign will comply with SEPP 64, the Guidelines and the relevant sections of AS 4282-1997 Control of the Obtrusive Effects of Outdoor Lighting. The joint report considered the impact of the proposed area of illumination on surrounding areas, and distraction for drivers and obtrusive effects on residents of nearby buildings. All issues were resolved by the proposed conditions. 3. The Council's bundle of documents volumes 1 and 2 dated 5 February 2019 (Exhibit 4). 4. Applicant's Class 1 application (Exhibit A). This includes a letter from the RMS dated 7 November 2017 stating that the RMS would raise no objection to the Applicant's development application subject to the condition that each advertisement be displayed in a completely static manner without any motion for a dwell time of 24 hours. A trial period of 18 months in which the advertising sign operates with a minimum dwell time of 60 seconds was also permitted. 1. Site plan for the development application of the proposed sign dated 20 June 2018 (Exhibit D). 2. Statement of environmental effects for the proposed sign dated 19 June 2018 prepared by Hills Environmental (Exhibit E). 3. Various Google Maps images of the locality with photographs showing views of the site at different vantage points along Anzac Parade (Exhibit F). 4. Photograph depicting a view of the subject building with a computer-generated image of the proposed sign superimposed near the intersection of Borrodale Road and Anzac Parade (Exhibit G). 5. Development consent conditions for the proposed sign (Exhibit H).

Joint planning expert report

1. A joint expert report dated 22 January 2019 was prepared by consultant planners Mr Mead, called by the Applicant and Mr Brewer called by the Council. It is agreed that the sign is permissible and complies with all relevant geometric and size requirements under SEPP 64. The RLEP permits advertising signage in the B2 Local Centre zone one of only three zones in Randwick that permits advertising signage. Impacts on road safety are no longer in contention and the proposal has the support of the RMS.
2. The fundamental issue of disagreement relates to whether the sign is of a form and character that is suitable to the current and future character of the Centre.

Contention 3 (application of SEPP 64 cl 3(1)(a)(i), (ii), cl 3(1)(e))

1. Mr Mead stated that the Centre remains dominated by commercial activity and is a distinct commercial centre. Signage currently forms an integral part of the Centre's character and that is unlikely to change. The proposal will be compatible with that desired future character. Mr Mead relied on the photo montages submitted with the Applicant's application.
2. In terms of visual impact, given the commercial setting the sign's visual impact is acceptable. The sign will sit flush with the wall of the building, have a slimline appearance and will not adversely affect the architecture or appearance of the building to which it will be attached. The blank wall does not contribute to achieving the desired future character for the locality. Section 2.5(vi) of Pt D2 of the RDCP seeks to minimise the creation of blank walls at common boundaries. The proposal will not adversely affect the legibility of the streetscape. The streetscape is widely varied in terms of height, scale and design of buildings and the proposal will be compatible with this varied character. Mr Mead disagreed with Mr Brewer's reliance on the Kingsford and Kensington Town Centre Review - Issues Paper (2016) (the Issues Paper) since it has not yet been translated into a draft development control plan (DCP).
3. Mr Mead stated that there cannot be a rational appraisal of public benefit versus bulk of a structure. Rather the structure needs to be assessed against the controls (namely SEPP 64) and the public benefit offer appraised. Mr Mead stated that cl 3(1)(e) of SEPP 64 relates to public benefits, not clutter or the wider public interest.
4. Mr Brewer stated that the proposed sign fails fundamental aspects of SEPP 64 that are underpinned by s 4.15(1) of the EPA Act. The proposal is not compatible with the desired amenity and visual character of the local area. The site is located within the Centre, which is described in s 1.3 of the Draft Strategy as a "traditional strip based centre with a distinctive retail and dining character, and a strong evening economy stemming from its proximity to UNSW and its large student demography". The character of the area surrounding the site cannot be simply typified as a distinctly commercial centre given that it contains a substantial number of residential apartments, both in traditional shop-top housing and more recent mixed use multistorey developments. The character of the area can be described as a mix of traditional two-storey premises containing ground floor retail or commercial activities with the first floor providing a range of commercial services and residential flats. Mr Brewer stated that a relatively consistent feature of the local area is the awnings to provide weather protection over the footpath with signage restricted to below the awning, on the fascia of the awning or at first floor up to the parapet over the first floor. The Issues Paper notes that "[b]usiness signs in Kingsford Town Centre demonstrate a generally consistent pattern, largely comprised of fascia signs, under awning signs and window signs". Advertising is also related to the building to which it is attached and associated with identifying the premises, goods or services provided. Signage is also largely static in nature and does not contain moving images. There is no specific statement regarding signage and advertisements in the vision for the Centre in s 2.2 of the Draft Strategy.
5. Mr Brewer stated that the proposal is not consistent with the established or desired/envisioned character. The positioning of the sign on the side of a building it bears no relationship to at a height well above the general ground / first floor area characteristic of the Centre is an inappropriate design response.
6. Mr Brewer stated that the proposal fails to adequately demonstrate there will be a public benefit beyond the payment of fees for the duration of the permit period or the ability to display community and public safety messages.
7. Mr Brewer stated that together cl 3(1)(e) of SEPP 64 and s 4.2 of the Guidelines demonstrate that public benefit can include improved public amenity within or adjacent to the transport corridor. The proposal fails to improve public amenity and does not promote the ideal that underpins the whole concept of the outcomes to be achieved by a "public benefit" derived from an advertising structure.

Contention 4 (controls within SEPP 64)

1. Mr Mead stated that the proposal is consistent with the objectives in cl 3(1) of SEPP 64. The proposal will utilise new high technology that will represent contemporary quality design and finish. The style of signage is becoming increasingly common in commercial centres within Sydney and other parts of Australia abroad. Mr Mead stated that site visits have confirmed that there are many signs within the Centre above awning height.
2. Mr Mead concluded that the proposal complied with the assessment criteria in Sch 1 of SEPP 64. Regarding character of the area (criterion 1), the desired future character for the centre is for higher and denser development with a focus on commercial activity. Signage location and design will continue to evolve to match that built form. In any event the proposed signage is compatible with the existing character of the centre in that it is dominated by commercial and mixed use activity and contains significant amounts of signage above and below awning level in various locations and of varying sizes and designs. The fact that wall advertisements are not a dominant feature of the locality does not mean that the proposal cannot be compatible with its character. Regarding views and vistas (criterion 3), Mr Mead stated that view loss is not in contention nor is the impact of the proposal on the skyline or important vistas. Nonetheless the proposal does not adversely affect the viewing rights of any other advertisers. In relation to streetscape and setting and site and building (criteria 4 and 5), Mr Mead stated that according to s 2.4 of the Guidelines the proposal will not add to the existing visual clutter of advertising signs along the Anzac Parade corridor. The subject building elevation contains no signage and the proposal will not result in the removal or consolidation of any other signage. Further the proposal will adopt contemporary slimline signage technology which displays current innovations in digital display. The signage integrates with the advertising structure and will be flush with the building. The location of the proposed sign is such that it will not compete with the other advertisements in the immediate vicinity at street and first floor level. The sign will not be visible from many points below the awnings of Anzac Parade.
3. Mr Mead stated that there is no intended theme expressed for signage in s 2.2 of the Draft Strategy beyond a suggestion that there should be collaboration with businesses in developing any strategy and that it may include an Asian theme. The Draft Strategy does not provide any appropriate guidance for assessing the proposal. Advertising signage forms part of the character of a commercial centre (as acknowledged by the objectives in s 3.2 of Pt F2 of the RDCP) and the subject sign is within the B2 Local Centre zone which is one of the limited zones that permits advertising signage under the RLEP. Mr Mead stated that the site location meets the criteria within s 2.3.2 of the Guidelines. The proposal will not affect the realisation of the vision set out in the Draft Strategy. The vision statement does not change the objective set out in s 3.2 of Pt F2 of the RDCP which recognises that "outdoor advertising can help to express the character of a commercial district or business centre". Determinative weight should be given to the controls of SEPP 64 and the RDCP with which the proposal complies.
4. Mr Brewer concluded that the proposal does not comply with the assessment criteria in Sch 1 of SEPP 64. Regarding criterion 1, Mr Brewer stated that the proposed sign will be located within a largely residential component of the built form. In relation to s 2.3.2 of the Guidelines, a number of residential units are located within close proximity to and will have direct and indirect views of the proposal. In relation to criterion 3, Mr Brewer stated that the proposal does not respect the viewing rights of other advertisers. The sign is to be mounted approximately level with the sixth floor of the subject building, well above all other signage associated with the Centre, providing unparalleled exposure and adversely dominating other signage within the Centre. Further, an analysis of exactly how exposed the sign will be and how it will affect pedestrian sightlines and experiences has not be undertaken by the Applicant. Regarding criterion 4, Mr Brewer stated that the proposal will not reduce clutter by rationalising or simplifying existing advertising. The proposal seeks to provide yet another structure that by virtue of its size and location above the established signage zone within the Centre will result in an unacceptable visual dominance and adverse amenity to the surrounding area.

Contention 7 (RDCP 2013)

1. Mr Mead stated that the zoning and planning controls do not expressly or through their objectives restrict advertising to the commercial levels of development or the lower levels of development. The RDCP does not contain any such language or controls that refer to "the general signage area at street level". Signage of the type proposed is permissible in the zone unlike most other zones under the RLEP and is to be expected within town centre locations. The Guidelines support its location on transport corridors. The planning controls do not set a desired future character of "upper level residential". There are no controls or objectives of the RDCP which limit advertisements and signs to being attached to buildings to which that signage is related. That would derogate from the provisions of SEPP 64 and the RLEP which permit wall advertisements. Part D2 of the RDCP is silent on objectives and controls for signage. This is because the controls of SEPP 64 provide the core controls against which signage in the Centre should be assessed. The existing blank wall to the subject site which is highly exposed does not reflect the desired future character for the commercial centre. The subject elevation is not a contributory façade and has no architectural merit that should be preserved. Section 2.5(vi) of Pt D2 of the RDCP states that new development must minimise the creation of blank walls at common boundaries. The proposal will be an addition to the side elevation that will provide interest to the blank wall.
2. Mr Brewer stated that in light of the role of the Centre as outlined in s 5.3.3 of the Draft Strategy, the fine-grained built form and the predominant land use activities within it, a large general advertising sign located well above all other signs does not bear any relationship to the Centre. In relation to the contention that Pt D2 of the RDCP lacks adequate specific objectives in relation to signage, the format of the applicable planning controls is adequate. The provisions in the RDCP are sufficiently integrated with the higher order instruments to ensure that the fundamental aspects of s 4.15(1) of the EPA Act are addressed.

Contention 8 (outdoor advertising - RDCP 2013)

1. Mr Mead stated that the SEPP 64 controls are the relevant controls when considering the scale of signage. The objectives and controls do not support the approach to signage in the Centre that signage may be provided only in certain "defined signage zones".
2. Mr Brewer stated that mere compliance with the numerical elements of the higher order controls and instruments does not provide an automatic "pass" when it comes to the objective criteria. Clause 13 of SEPP 64 makes this clear.

Contention 9 (specific controls - RDCP 2013)

1. Mr Mead stated that there are few similar buildings located so as to promote similar advertising signage. Accordingly the proposal will not set a precedent for visual complexity emanating from several similar signs. The fact that any development consent will be time-limited will serve to not preclude changes to the Centre over the course of time. The objective in s 3.2 of Pt F2 of the RDCP "that outdoor advertising can help to express the character of a commercial district or business centre" acknowledges that advertising signage can be expected and will form part of the character of a commercial centre. The proposed sign will maintain the visual amenity and value of the streetscape by sitting well above the parapet, complying with the maximum advertising area controls and complying with elevation coverage requirements.
2. Mr Brewer stated that control (i) in s 2 of Pt F2 of the RDCP, "[s]ignage should recognise the legitimate needs for directional advice, business identification and promotion", applies to the proposal and has not been complied with. The diagrams in the RDCP demonstrate the scale of development expected which the proposal far exceeds.

Concurrent evidence - planning experts

1. Mr Mead attested that according to the Draft Strategy the desired future character of the Centre is boundary to boundary development. Further, s 1 of Pt D2 of the RDCP demonstrates the commercial nature of the locality and that it is active at night. Section 2.2 of the Draft Strategy (although it has not yet been translated into the RDCP) demonstrates that the Centre is an exciting hub and that innovative start-ups will be encouraged in the area.
2. Mr Mead stated that there are limited zones in the locality in which signage is permitted. Further the zone in which the site is located is not a sensitive zone as per SEPP 64 in that it is not a heritage conservation zone. William Street and Taylor Square for example have signs similar to the proposed sign. Further the locality is a visually busy environment in that there is shopfront signage above awnings and activity will increase due to the light rail. Mr Mead stated that the proposed sign will not distract drivers because there is a limited amount of time that they would see the sign as they drive down Anzac Parade.
3. The dwell time for the electronic image displayed on the proposed sign throughout the 18 month trial has been increased to 60 seconds. Mr Brewer was asked whether this change in dwell time would change the conclusions he made in the joint expert report dated 22 January 2019. Mr Brewer stated that even with the change in dwell time the operation of the proposed sign would still create a safety issue.
4. Mr Brewer stated that according to the Issues Paper signage is limited to the first and second storeys of the buildings in the locality. Further the Centre is dominated by traditional shop-top houses and commercial activities are confined to the first floor. Signage is ancillary to the commercial functions of the area that is, they are only used for denoting the name of businesses. The vision in s 2.2 of the Draft Strategy seeks to confine commercial activity to the first and second floors of the buildings in the locality. Mr Brewer stated that many people will see the proposed sign upon exiting the light rail. Ultimately there are currently no other advertisements of a nature similar to that of the proposed sign. Advertising must be subservient to the mixed use in the locality since there is no strategy planning document that permits otherwise.

Contentions 3 and 4

1. Contentions 3 and 4 are concerned with SEPP 64. It is agreed that the proposed sign before the Court complies with the numeric requirements of SEPP 64. There is considerable overlap between contentions 3 and 4 concerning SEPP 64 which I summarise as follows. Due to the intrusive and large scale of the proposed sign it: 1. fails to comply with cl 3(1)(a)(i) as it is not compatible with the desired amenity and visual character for the Centre; 2. pursuant to cl 3(1)(e) it is not in the public benefit to have an advertising sign in that location; and 3. it does not satisfy the required Sch 1 assessment as it fails to comply with existing and desired future character, is not consistent with the Draft Strategy, is visually dominant, will set an undesirable precedent if approved, does not rationalise advertising signs but adds to visual clutter, intrudes above the two-storey level where all the advertising is presently located and the siting is adverse to the surrounding amenity.
2. The Applicant submitted that the proposal will not adversely affect the sense of place and visual quality at the site or adjacent areas because it references the dominant commercial/retail character of the local centre. The appropriate reference points for desired future character are Pt D2 and Pt F2 of the RDCP and the Draft Strategy. The proposal will not affect the realisation of the vision set out in s 2.2 of the Draft Strategy. The Draft Strategy does not foreshadow any further restrictions on outdoor advertising beyond those in the RLEP and RDCP.
3. The Applicant submitted that other signage in the visual catchment of the site is limited to road related signage and business identification signs. There is currently no discernible pattern or theme for outdoor advertising. Accordingly the proposal will not be inconsistent with any particular theme. The proposal presents an opportunity to create visual interest through the presentation of varied high quality advertising. As the proposal meets every numeric built form control of SEPP 64 it is of a size and type that is contemplated by SEPP 64. The proposal also satisfies the Guidelines.
4. The Council essentially relied on Mr Brewer's opinion to submit that the proposed sign is not compatible with the current and future desired character of the Centre.

Findings on contentions 3 and 4

1. The proposed sign is a wall advertisement as defined in SEPP 64 and is permissible in the B2 Local Centre zone. Under cl 8 of SEPP 64 a consent authority cannot grant development consent unless satisfied that the signage is consistent with the objectives of SEPP 64 in cl 3(1)(a). The aims include that signage is compatible with the desired amenity and visual character of an area (cl 3(1)(a)(i)), provides effective communication in suitable locations (cl 3(1)(a)(ii)) and is of high quality design and finish (cl 3(1)(a)(iii)). The Council also contended that cl 3(1)(e) is not satisfied. Development consent is required by virtue of cl 11. Under cl 13(2) a consent authority must not grant consent to an application for an advertisement unless it is consistent with the objectives of SEPP 64, has been assessed in accordance with the assessment criteria in Sch 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts and satisfies any other relevant requirements of SEPP 64.
2. The proposed sign has a display area (defined in SEPP 64) of over 20 square metres and is proposed to be higher than eight metres above ground level. Under cl 17(3) a consent authority must not grant consent to an application to display an advertisement subject to the clause unless an impact statement addressing the criteria in Sch 1 is provided and the consent authority is satisfied that the proposal's impact is acceptable.
3. Concurrence from the RMS is required by virtue of cl 18 of SEPP 64 as cl 17 applies, the proposed sign is within 250 metres of a classified road and will be visible from the classified road. The RMS has provided concurrence as required. In deciding whether or not to grant concurrence, the RMS must take into account the impact of the display of the advertisement on traffic safety per cl 18(3)(a) and the Guidelines per cl 18(3)(b). I note for completeness that as cl 18 applies, cl 13(3) states that a consent authority must not grant consent unless arrangements that are consistent with the Guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement. No issue of lack of public benefit is now raised expressly in this appeal.
4. The Council alleged through contentions 3 and 4 that the aims and objectives of cl 3(1) of SEPP 64 are largely not met. Nor are cll 13(2) and 17(3)(a).
5. Given the comprehensive assessment required by Sch 1 which requires consideration of the character of the area, views and vistas, streetscape and setting, the principal issue of whether the proposal is compatible with the current and desired future character of the area can be determined in this context. The answer to that issue will largely answer the balance of contentions 7, 8 and 9, to the extent these can arise as I discuss below. The documents referred to in those contentions namely the RLEP and the RDCP are relevant to determining the existing character of the Centre.
6. The two expert planners have undertaken a Sch 1 assessment and reached different conclusions on whether the proposed sign is acceptable.
7. The contrasting planners' viewpoints are set out above in some detail and the Court had the benefit of a view of the general location and hearing from the planners in concurrent evidence. The proposed sign is intended to be seen by drivers travelling along Anzac Parade in a northerly (city bound) direction. Given the concurrence of the RMS the impact on the driving environment need not be considered. Its compatibility with the pedestrian environment at street level and the overall character of the Centre now and into the future is in issue.
8. The objectives of the B2 Local Centre zone are set out at [14] above in the extract of the Land Use table in the RLEP. These include the provision of a range of retail, business, entertainment and community uses for people who live, work and visit the area; to enable residential development that is well-integrated with, and supports the primary business function of the zone; to facilitate a high standard of urban design and pedestrian amenity that contributes to achieving a sense of place for the local community; and to minimise the impact of development and protect the amenity of residents in the zone and in adjoining residential zones inter alia. Development permitted with consent reflects the wide mix of commercial and retail and residential uses permitted in the zone. I was informed that no objections to the proposed sign were received from surrounding residents.
9. The RDCP provides a general description of the Centre as a key strip shopping centre as set out above in [15]. Part F2 deals with outdoor advertising and signage and emphasises the need for good design and location of outdoor advertising to ensure it is in keeping with the scale, character and architectural style or features of a building and does not impact adversely on the locality. Objectives for signage based on business zones are identified in s 3.2 and refer to the need to avoid proliferation of advertising inter alia.
10. Concerning the Sch 1 assessment criteria, firstly character of the area (criterion 1), I consider that Mr Brewer's assessment of the character of the Centre reflects its dual nature as both a commercial and retail centre up to two storeys in height with shop top development fronting Anzac Parade and taller residential apartment blocks set back and behind this strip. I agree with Mr Brewer that advertising should be subservient to the mixed use nature of the locality. The proposal represents a significant intrusion into the higher residential zone. It would sit well above the existing large amount of signage (as defined in SEPP 64), consisting of building identification, business identification and advertisement signage in the two-storey commercial and retail strip along Anzac Parade. As Mr Mead identified there is a lot of signage above the awning level along Anzac Parade but that is still largely at a low level and does not generally intrude above the two-storey commercial and retail strip. I find that the proposed sign is not compatible with the character of the current land use of the Centre.
11. There is limited information available about the desired future character of the Centre, being largely the Draft Strategy to which limited weight can be given. The Draft Strategy has no formal status under the EPA Act as a policy document that has been exhibited to the public but is yet to be formalised in an instrument recognised as having legal weight. It can be considered at a general level as providing some indication of the Council's future intentions for the relevant area. What is envisaged in that document is a continuation of the Centre as a mixed commercial and retail zone with residential uses. Taller residential buildings are intended and the minimisation of visual clutter through co-location of signage is proposed inter alia. The proposed sign does not appear to be compatible with that desired future character.
12. There is no need to consider special areas (criterion 2).
13. In relation to views and vistas (criterion 3), the proposed sign will be very noticeable to pedestrians from several locations at street level on the eastern and western sides of Anzac Parade, including from the commencement of a proposed pedestrian mall commencing at the corner of Anzac Parade and Meek Street, referred to in the Draft Strategy and identified during the view. It will be the only advertisement at that high level in a dominant position. It is substantial in size albeit complying with the dimensions specified in SEPP 64. In terms of the pedestrian environment, it will be visually prominent to pedestrians from numerous locations on the eastern side of Anzac Parade. It will also be noticeable on the western (same) side for noticeable periods as the awning does not overhang the whole pavement at a key location on the western side where Anzac Parade veers. I make these findings aware that the proposal includes a dwell time of 24 hours with an 18 month trial period provided in the draft conditions of consent for a dwell time of 60 seconds with opportunity to seek approval from the RMS for that dwell time or less at the conclusion of the trial period. I am also aware that by virtue of SEPP 64 development consent for this kind of development is limited to 15 years.
14. In relation to streetscape and setting (criterion 4), I consider the sign will add to visual clutter as it introduces a large wall sign in a dominant location where presently there is no advertising signage. It does not result in the rationalisation and simplification of existing advertising.
15. In relation to site and building (criterion 5), this factor is neutral given the blank and unattractive wall that is proposed for the wall advertisement. It has no important features to which notice should be drawn.
16. No issues arise in relation to the other assessment criteria in Sch 1 of SEPP 64 namely criteria 6 (associated devices), 7 (illumination) or 8 (safety).
17. The Sch 1 assessment does not cause me to conclude that the proposal is acceptable in terms of its impact, as required by cl 13(2)(b) if consent is to be granted. Nor is it consistent with all the objectives of SEPP 64 which refer in cl 3(1)(a)(i) to compatibility with desired amenity and visual character of an area. Consequently I am not able to grant development consent as the requirements of cl 13(2) and cl 17(3)(a) of SEPP 64 are not satisfied.
18. I note for completeness that failure to satisfy cl 3(1)(e) of SEPP 64 concerning public benefit is identified as an issue in contention 3. As this matter was identified in the context of visual amenity which has been addressed above I do not need to further consider that issue.

Contention 6 (RLEP)

1. Contention 6 identifies issues which in part I am informed are not now in issue. Concerning traffic safety, the RMS has provided its concurrence to the amended proposal. The impact of illumination, dwell time and distraction are the subject of agreement of the lighting experts. To the extent it refers to unacceptable visual impact, that is considered in other contentions. I do not need to further refer to this contention.

Contention 7 (RDCP)

1. Contention 7 alleges failure to comply with the Centre objectives as defined in the RDCP. The proposal fails to maintain the distinction between the lower levels of commercial and retail development where advertising is located and residential development, adding to visual clutter and adverse visual impacts on upper level residential areas, visually incompatible with the streetscape and upper level residential character in the context of existing and desired future character. These concerns overlap with those identified in relation to SEPP 64 in light of the Sch 1 assessment required by cl 8(b) and cl 13(2) of SEPP 64. I have considered these above.

Contentions 8 and 9 (RDCP)

1. The Council submitted the following four RDCP controls prohibit the proposal: 1. Control iii) in s 2 of Pt F2 which states: "Signage should not obscure architecturally decorative details or features of buildings or dominate building facades. It should be placed on the undecorated wall surfaces or designed sign panels provided". 2. Control ix) in s 2 of Pt F2 which states: "Signage must not be flashing or animated. Note: Flashing or animated signs include mechanical moving signs, moving LED signs, video/television screens, projected laser advertising and other flashing, intermittently illuminated or sequenced lighting signs." 3. Control ii) in s 3.2 of Pt F2 which states: "Signage must not dominate or obscure a building or its architectural features. Advertising should highlight and reinforce architectural details." 4. Control vii) in s 3.2 of Pt F2 which states: "Upper level signs are best located at major focal points of a building only, to advertise arcades, plazas, etc…and to provide as corporate identity for developments which contain a range of businesses."
2. The Applicant submitted the proposal meets every numeric built form control of SEPP 64 and is accordingly of a size and type that is contemplated by SEPP 64. The sign is digital with images appearing on the screen in a static manner. SEPP 64 allows for this. The dwell time is significantly longer than what the Guidelines allow (60 seconds compared to 10 seconds). The sign will not display images in motion. The proposal will not result in visual clutter.

Finding on contentions 8 and 9

1. SEPP 64 prevails to the extent of any inconsistency with an environmental planning instrument (EPI) by virtue of cl 7 of SEPP 64 and s 3.28(1)(a) of the EPA Act. A DCP is not an EPI as defined in s 1.4 of the EPA Act. While the Council's submission that the RDCP also applies to the extent it is not inconsistent with SEPP 64 can be accepted in view of s 4.15 of the EPA Act, SEPP 64 is the primary planning document controlling this proposed sign. It is problematic to state that the RDCP prohibits what SEPP 64 permits as the Council submitted in relation to four of the RDCP controls, set out above. The RDCP cannot prohibit what is otherwise permitted by SEPP 64. I do not accept the Council's characterisation of the sign as flashing given that it is a static image which will move every 60 seconds during the trial period. To construe the RDCP as stating that flashing signs include all sequenced lighting signs virtually regardless of dwell time is not to apply a practical and common sense approach to its construction. This approach is appropriate given that the RDCP is not an environmental planning instrument as defined in s 1.4(1) of the EPA Act.

Contention 10 (public benefit)

1. Contention 10 states that approval of the proposed sign is not in the public interest as it fails to meet minimum levels of design quality and will set an undesirable precedent for future development in the locality. As was apparent during the view there are two other side facing blank walls on the same side of Anzac Parade in the Centre which could potentially be the subject of a similar application. It is difficult to assess the likelihood of concurrence to both of these by the RMS. One side wall near the five way Anzac parade/ Bunnerong Road intersection has a view line to a possible advertisement through traffic lights. This may be unacceptable to the RMS I was informed on the site view suggesting concurrence may not to be forthcoming. In any event, the potential for future applications for similar types of wall advertisements does exist and this application does represent an undesirable precedent if approved.

Conclusion

1. Considering the factors to which regard must be had under s 4.15 of the EPA Act, the application of SEPP 64 has been the primary instrument to which regard must be had under subs (1)(a)(i), the RDCP to the extent appropriate under subs (1)(a)(iii) and the matters in subss (1)(b) and (c) have been dealt with in relation to the Sch 1 assessment above. Taking these matters into consideration I do not consider the public interest per subs (1)(e) is served by granting development consent to this proposal. I consider the Applicant's appeal should be dismissed.

Orders

1. The Court orders that: 1. The appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of development application number DA-467/2017 is dismissed. 2. The exhibits are returned.

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