Land and Environment Court New South Wales

• Medium Neutral Citation: APN Outdoor (Trading) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1131
• Hearing dates: 21 March 2011
• Decision date: 23 May 2011
• Jurisdiction: Class 1
• Before: Dixon C

Decision

1.The appeal is dismissed.

2.Application number BC/2010/93 for a building certificate under section 149D of the Environmental Planning and Assessment Act 1979 for an advertising sign located at 11 Bridge Road, Glebe is refused.

3.The exhibits are returned.

• Catchwords: Application for a building certificate for an advertising sign - the extent of the Court's discretion under section 149F(3) of the EPA Act 1979 to direct the issue of a building certificate in respect of development which is prohibited.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Leichhardt Local Environmental Plan 2000; State Environmental Planning Policy 64 - Advertising and Signage
• Cases Cited: Ireland v Cessnock City Council (No1)(1999) 103 LGERA 285; Ireland v Cessnock City Council (No2)(1999) 110 LGERA 311; Taipan Holdings Pty Ltd v Sutherland [1999] NSWLEC 276; Mineral Wealth Pty Ltd v Gosford City Council (2003) 127 LGERA 74; Seagal v Waverley Council (2005) 64 NSWLR 177; Woollahra v Carr (1982) 47 LGRA 105 North Sydney v Ekstein (1985) 54 LGRA 440.
• Category: Principal judgment
• Parties: APN Outdoor (Trading) Pty Ltd (Applicant); Council of the City of Sydney (Respondent)
• Representation: APPLICANT; Mr M Seymour of Counsel; RESPONDENT; Mr A Hawkes solicitor; APPLICANT; Holding Redlich Solicitors; RESPONDENT; Legal Department,; City of Sydney Council
• File Number(s): 10934 of 2010

Judgment

1 The applicant asks the Court to direct the Respondent - the Council of the City of Sydney - to issue a building certificate for a backlit advertising sign.

2 The sign is 3.229 m wide x 4.729 m high and 220 mm deep. It is affixed to a blank sidewall of a terrace house at 11 Bridge St and overhangs the adjoining land which is used as a private car park at 11 Bridge Rd, Glebe.

3 The site is in the City of Sydney local government area (as a result of a local government boundary change) but remains under the provisions of Leichhart Local Environmental Plan 2000 (LEP) as it was at 8 May 2003.

4 The council characterizes the sign as an "advertising panel" and submits it is prohibited because:

• the sign is on land which is zoned Business under the LEP and cl 21 prohibits advertising panels on such land; or
• the sign is on land identified within the eastern boundary of the St Phillips Street Heritage Conservation Area - as identified in the LEP and in the Leichhart Development Control Plan (DCP)- and, is therefore prohibited by cl10 of State Environmental Planning Policy 64 - Advertising and Signage (SEPP).

5 The council also contends that the sign is unacceptable because of its adverse environmental impacts, and that the Court should not exercise its discretion to direct the council to issue a building certificate in the circumstances of this case.

6 The applicant acknowledges that the sign is prohibited under cl 21 of the LEP and by cl 10 of SEPP 64 because the site is within a heritage conservation area. Despite its prohibition, however, the applicant submits that the sign has no adverse environmental impacts and has been in place for a long period of time and requests the Court to exercise its discretion to direct the council to issue a building certificate. The discretion in s 149F, according to the applicant, is akin to the Court's discretion under s 123 and s 124 of the Act and "... wider than the duty of council to issue a certificate": Ireland v Cessnock City Council (No 1) (1999) 103 LGERA 285,Bignold J at [52].

7 I have considered the competing submissions of the parties and I am of the opinion that the Court does not have power in this appeal under s 149F of the Act to direct the council to issue a building certificate in circumstances where the development is prohibited. A distinction needs to be drawn between an unauthorized development (for which development consent is possible) and a development that is prohibited and never capable of development approval. In my opinion, the words in s 149F inform the extent of the Court's power and discretion. It is not a power or discretion at large; it is not akin to that available to the Court in its class 4 jurisdiction. In a class 1 appeal, pursuant to s 149F, the Court's power or discretion does not extend to regularizing prohibited development, only unauthorized development, by the issue of a building certificate. The decision of Ireland can be distinguished on its facts.

8 However, if I am wrong in so confining the discretion to issue a building certificate for development that is permissible, I have considered the circumstances and environmental impacts of the sign; and, find it unacceptable on the evidence. Accordingly, I dismiss the appeal for the following reasons.

Background

9 The council's statement of facts and contentions filed on 9 December 2010 and the applicant's statement in reply filed on 15 December 2010 detail the relevant background, the statutory controls, and contentions between the parties. I do not repeat that information save for the following matters.

10 According to the evidence, the sign has been continuously in place since 1979. It was originally fixed to the wall in a landscape form. The applicant contends that in 2008 the sign was altered to its present portrait mode and backlit.

11 The sign is attached to the sidewall of the terrace at 11 Bridge Street under a 5-year advertising lease with an option for a further 5 years. The lease commenced on 1 May 2008 and will expire on 1 May 2013 (exhibit H).

12 On 9 August 2010, the council issued an order to the owner of the site requiring the removal of the sign, pursuant to s1 21B of the Act. However, that matter is on hold pending the outcome of this appeal.

13 The applicant lodged an application for a building certificate in respect of the sign on 3 September 2010.

14 The council refused that application on 29 October 2010.

15 This class 1 appeal was lodged with the Court on 18 November 2010.

16 The terrace to which the sign is affixed is one of a group of two-storey terraces, zoned for commercial purposes, next to a large private car park. A mix of commercial, residential, light industrial and educational uses surrounds the site.

17 The sign is defined as an "advertising panel" under the LEP. The site is within the Business zone and development of an advertising panel is prohibited under cl 21 of the LEP. Furthermore, the site is located within a heritage conservation area under the LEP and, if SEPP 64 applied, would be prohibited by cl 10.

Jurisdiction

18 Section 149F of the Act concerns appeals with respect to building certificates.

19 Section 149D(1)(a) of the Act states that the council must "... issue a building certificate upon application if it appears that:

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 :

(i) to order the building to be demolished, altered, added to or rebuilt, or

(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.

(3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.

(4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1) (a).

20 The council submits that the issue of the 121B Order is reason under s 149D(1)(a)(i) to refuse to issue the building certificate.

21 Aggrieved by the decision of council not to issue a building certificate, the applicant has appealed to the Court, pursuant to s149F(1)(a) against that decision.

22 Section 149F(3) of the Act states that the Court on hearing an appeal "... may do any one or more of the following:

( a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,

(b) it may revoke, alter or confirm a notice under section 149C,

(c) it may make any other order that it considers appropriate."

23 The applicant submits (at p 3 of its written submissions filed on 23 March 2011) that:

"...the EPA Act does not provide " explicit" guidance to the Council (or the Court on an appeal) as to what matters should or should not be considered in assessing an application for a building certificate. Instead the EPA Act provides only a duty to issue a certificate on satisfaction of a state of affairs (i.e. that there is no 'matter' which would entitle a Council to issue an order with respect to a structure) and a discretion that may be exercised even if the council is not satisfied of that state of affairs."

24 Both parties submit that the power and the discretion that the Court has on appeal is wider than the duty available to the council in s 149D. In support of this submission, they rely on the Court's decision in Ireland (No1) and the several observations made by Bignold J at [44], [52], [58], [60-67] concerning the power of the Court to grant building certificates and at [69] the matters that the Court can take into account on appeal.

25 It is also submitted that the Court's reasoning in Taipan Holdings Pty Pld v Sutherland [1999] NSWLEC 276 is relevant to this appeal. In that case the Court analyzed a "hypothetical development application" in order to determine that a building certificate should issue for an illegally built boat shed. At [118-119] the Court comments that the discretion in s 149F(3):

".... is virtually the same as those formulated by Kirby P in the following passage from his oft cited judgment in Warringah Shire Council v Sedivcic (1987) 10 NSWLR 335 where his Honor, speaking of the statutory discretion conferred on the Court by the EPA Act s124 (1) 'to make such orders as it thinks fit to remedy or restrain a breach of the Act" said at 342:

It is important to conclude by pointing out that the discretion is itself part of the statutory scheme. In this sense, the exercise of the discretion should not be seen as the illegitimate interference by judges in the even-handed application of planning law which local government have the responsibility of enforcing. Instead, it is an important part - a fulcrum as it were - of that planning law, designed to introduce into it the protection in reserve of salutary discretion. Because it exists in the Court, the discretion must also be considered by planners who invoke the Court's discretion. Because it is established by Parliament and is expressed in such broad terms, it is a legitimate and integral part of the overall scheme of planning legislation operating in this state. It cannot be ignored. It should not be unduly circumscribed by a gloss of cases.

The President in that passage was considering the discretion vested in this Court to decline in the exercise of discretion, to grant relief in a case where a breach of the Act had been established. I would respectfully adopt that line of reasoning and adopt it in its application to the statutory discretion concerning the issue of a building certificate".

26 Paragraphs 19, 20 and 21 of the applicant's written submissions set out the process of environmental assessment, which the applicant submits should be undertaken by the Court in determining an appeal under s 149F of the EPA Act.

27 Accepting, as the applicant submits, that there is discretion to regularize the sign ( Ireland ) it says that the Court could assess a notional development application (as discussed in Mineral Wealth Pty Ltd v Gosford City Council (2003) 127 LGERA 74) and Taipan . However, in doing so, it should appreciate that the discretion is wide and akin to the discretion in s 123 and s 124 of the Act, as discussed by the Court in Warringah Council v Sedevcic (1987) 10 NSWLR335 at [339-340] per Kirby P . The only constraint, according to the applicant, is the discretion should be limited to the issues raised by the parties in the contentions: Seagal v Waverley Council (2005) 64 NSWLR 177.

28 As I said earlier, it is the applicant's submission that the discretion of the Court to grant a building certificate "...is itself part of the statutory scheme of planning in this State and so by granting of a certificate (given the long term presence of the sign and its lack of any environmental impacts) the Court would indeed be upholding the statutory planning scheme", at [4] of the applicant's submissions in reply dated 29 March 2011 (based on the Court's reasoning in Taipan ).

29 The applicant submits that a notional development application is only one way of assessing whether to exercise the discretion to issue a building certificate. The circumstances of the individual case are pertinent to the exercise of the Court's wide discretion but those circumstances do not need to be exceptional. In this case it submits that the sign has no adverse environmental impacts and therefore does not offend the public interest or the planning scheme.

30 The council agrees with the applicant's submission that the Court has the power to grant a building certificate in circumstances where the development is prohibited; but, submits the public interest, in preserving and maintaining the zoning and permissible uses, is highly relevant and it would require exceptional circumstances to override a general presumption in favor of upholding the zoning provisions. Council relies on the decisions of: Woollahra v Carr (1982) 47LGRA105 and North Sydney v Ekstein (1985) 54 LGRA 440 in support of its submission to uphold the planning scheme.

31 Council's central submission is that the development is prohibited under the current LEP, and under SEPP64. It submits that there are "no exceptional circumstances" which would bring this sign within para 4.3.1 of the City of Sydney Signage and Advertising Development Control Plan 2005 (exhibit 3 folio175). The site is proposed to continue in a conservation area and its use for the proposed purpose is prohibited under cl 6 and cl 10 of SEPP64.

32 The breach, according to the council is not trivial because it undermines the planning scheme and the heritage conservation area. The applicant has not claimed hardship or any disentitling conduct by the council. There is no related development the viability of which depends on this advertising panel. The sign is not permanent but subject to a lease. Therefore, the Court should uphold the planning scheme and not direct the issue of building certificate.

33 While council agrees that the Court, in considering whether to exercise its discretion should take guidance from the case law; and, a consideration of the objects of the Act, it submits that there is no case law dealing with the issue of a building certificate in respect of prohibited development. In Ireland No 2 , Bignold J was dealing with a development which " ... had development consent been sought immediately prior to the time of erection it would have been permissible and in all probability been granted" at [37].

34 Based on the evidence of Mr Quinn, council submits that the other signs in the Bridge Road commercial area are very different to the sign under review because it has no relationship to the development in the locality. In heritage terms Council relies on the evidence of Mr Poulton and submits that the sign has no heritage value, no relationship with the use of the terrace to which it is attached and no history. It is a stand-alone general advertising sign, which is prohibited under the LEP.

35 Based on the evidence of its planning and heritage experts Council submits the sign has unacceptable environmental impacts and the Court should not exercise its discretion in this case to direct the issue of a building certificate.

Findings

36 Section 149F does not explicitly authorize the issue of a building certificate where the council has issued an order and the development is prohibited. Furthermore, the parties agree that there is no authority in support of the issue of a building certificate, in circumstances where the development is prohibited and the Council has issued an order requiring its removal.

37 The decisions of the Court in Ireland (No1) and Ireland (No2), Taipan and South Sydney CC v Nettlefold Advertising Pty Ltd [1999] NSWLEC 21 can be distinguished on their facts. The Court did not deal with prohibited development.

38 In this appeal, the sign is prohibited under cl 21 of the current LEP and while permissible under the draft LEP, (if it is gazetted in its present form) would be prohibited by cl6 and cl 10 of SEPP 64 because the site is within a heritage/conservation area and thereby prohibited by SEPP64. I do not accept on the authorities cited and the evidence before me that the discretion under s 149F extends to the issue of a building certificate in circumstances where the development is prohibited.

39 I do not accept, as submitted by both parties, that the discretion considered by the Court in Sedevcic concerning an appeal under s 124 in class 4 proceedings is the same as that available to the Court in an appeal under s 149F in circumstances where the development is prohibited. There is no authority before me which says as much.

40 Therefore, I am of the opinion that the Court does not have jurisdiction to issue the building certificate because the sign is prohibited development and the appeal must be dismissed.

41 Having said that, if I am wrong in confining my discretion to the issue of a building certificate, in circumstances where the development is permissible, I have also considered the circumstances and environmental impacts of the sign. An approach, which the Court adopted in Ireland, Tiapan and Mineral Wealth. I accept as discussed by the Court in Ireland at [69] that in the exercise of my discretion under s149F I may have regard to environmental impacts of the development, the objects of the EPA Act, the public policy and the other matter listed therein.

42 Based on my assessment of those matters and the evidence in this appeal I have decided not to exercise my discretion to direct the issue of a building certificate for the following reasons.

43 The planners; Ms Bindon for the applicant, and Mr Quinn for the respondent, in their joint report which is exhibit C, agree that the development is prohibited under the LEP. Furthermore, they agree the desired future character of the area is identified in Leichhardt DCP 2000 (at Pt A10.4.5, subs 3, pa A161) and that the site is also identified as part of the "St Phillips Commercial Area" which is described at p A159 of the DCP.

44 Having regard to that context, Mr Quinn is of the opinion that the sign is visually obtrusive and detracts from the appearance of the streetscape and; therefore; is inconsistent with cl 15 - Heritage Conservation Objectives and cl 16 (8) - Conservation Areas of Leichhardt LEP 2000. I accept his evidence because it was confirmed by the Court's view.

45 I cannot accept Ms Bindon's assessment of the environmental impacts of the sign in its locality. She is of the opinion that the sign has no visual impact from within the conservation area, except for the limited views from the buildings opposite on Bridge Road. She describes its impact on the road as "benign in the streetscape and within the context of this visually commercial urban environment." (para 41-42 exhibit A). The view by the Court did not confirm this evidence.

46 The heritage experts in their joint report (which is exhibit D) also have different views about the predominant character of the Glebe conservation area. Mr Staas considers that the site is surrounded by commercial development and each business is heavily signed - including the adjacent motor repair business and commercial building opposite in Bridge Road. In his assessment, the desired future character identified in the LEP is for intensification of the commercial use and the infilling of the vacant site. He says these objectives were formed at a time when the sign was in existence and formed part of the existing physical and visual character of the area. When the DCP was adopted the sign existed. It is Mr Staas' evidence that " the sign demonstrates far less visual clutter than road and directional signs in the context. It reads as a single isolated element in the long view of the Bridge Road and its well designed in relation to its location and relation with the host building " at p 4 of exhibit D.

47 Mr Poulton, council's planner, is of the opinion that the sign bears no relationship with the surrounding area. It is not an identification sign or a necessary directional sign; therefore, it is at odds with the objectives of the Leichhardt DCP and the City of Sydney DCP. His evidence is that "...The structure is not consistent with the style of the Victorian terrace to which it is attached and is a undesirable "entry marker to the historic suburb of Glebe". Mr Staas believes that the design being "vertical and centred on the facade of the building creates an acceptable and well resolved relationship with its host building" at p 5 of exhibit D. I prefer the evidence of Mr Poulton to that of Mr Staas.

48 The sign has been in situ for some time. It is the subject of a lease, which expires on 1 May 2013 and there is an option for a further lease period. I accept, as the experts collectively agree, that the length of time that the sign has been erected on the land is of no relevance in this appeal.

49 The view made plain the fact that Bridge Road is a busy road. It carries substantial volumes of traffic from the City and Broadway up to Glebe Point Road. The sign, which is large and backlit, is by reason of its size and position exposed to that large volume of traffic each day and night. Therefore, its environmental impact on the streetscape and the desired future character of the area is relevant to the Court's exercise of its discretion to direct the issue of a building certificate.

50 After a consideration of the parties' submissions including: the factors identified as relevant in Ireland at [69] and Taipan ; and, after a view of the sign in its locality I accept the sign is at odds with the desired future character of the area as identified in Leichhardt DCP 2000. It is and will remain prohibited development. I accept the council's submission that there is an overriding public interest in preserving and maintaining the zoning and permissible uses prescribed by the planning scheme. Therefore, for the reasons outlined in this judgment I have decided not to direct the issue of a building certificate in this appeal.

51 Accordingly, the Court Orders that:

(1) The appeal is dismissed.

(2) Application number BC/2010/93 for a building certificate under section 149D of the Environmental Planning and Assessment Act 1979 for an advertising sign located at 11 Bridge Road, Glebe is refused.

(3) The exhibits are returned.

Susan Dixon

Commissioner of the Court

Decision last updated: 25 May 2011