Adbooth Pty Ltd v Botany Bay City Council [2006] NSWLEC 710

Land and Environment Court of New South Wales

CITATION : Adbooth Pty Ltd v Botany Bay City Council [2006] NSWLEC 710

APPLICANT Adbooth Pty Ltd PARTIES : RESPONDENT Botany Bay City Council

FILE NUMBER(S) : 10594 of 2006

CORAM: Hoffman C

KEY ISSUES: Appeal :- Advertising and signage, visual character, desired future character of the locality, streetscape, zoning, size of signs

Botany Local Environmental Plan 1995 LEGISLATION CITED: State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 64 Commonwealth of Australia Telecommunication Act 1997

CASES CITED: Stockland v Manly [2004] NSW LEC 472; Schaeffer v Hawkesbury [77] LGRA

DATES OF HEARING: 24-25/10/2006

EX TEMPORE JUDGMENT DATE : 10/25/2006

APPLICANT Mr A Galasso, QC Instructed by: Ms K Gardner, solicitor Of: Gilbert & Tobin LEGAL REPRESENTATIVES: RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

25 October 2006

10594 of 2006 Adbooth Pty Limited v Botany Bay City Council

JUDGMENT 1 This is a class one appeal No. 10594 of 2006 between Adbooth Pty Limited and Botany Bay City Council in regard to the refusal of consent for an advertising sign on each of five telephone booths within the council area. The booths in the applications are identified as 909 Botany Road Rosebery, 206 King Street Mascot, 21 Swinbourne Street Botany, 1629 Botany Road Banksmeadow and 226 Bunnerong Road Hillsdale.

2 In the case of 909 Botany Road Rosebery the road reserves adjacent to the above properties are located at the corner of Botany Road and Tramway Street Rosebery. The existing telephone booth and the proposed new one are located on the southern side of Tramway Street between Botany Road and Middlemiss Street.

3 It is adjacent a chemist shop, or a former chemist shop, in zone 3A land with 3A land directly across from the booth both in Tramway Street and Botany Road. Further down Tramway Street is Residential 2B zoning. The area is predominantly commercial.

4 In the case of 206 King Street Mascot the application says the existing telephone booth is located on the southern side of King Street between Hardie Street and Botany Road. Actually when we took a view of the site, the booth was not located in that position, it was actually in Hardie Street near the corner of King Street. It was directly adjacent zoned 3A land that is used as the car park for shopping and retail outlets in Botany Road.

5 Directly opposite across Hardie Street is zoned 2A land on which is located a three storey walk-up apartment building, said to be a non-conforming existing use, and diagonally from the telephone booth across King Street is Residential zone 2B land, some of the houses of which directly opposite exhibited business names and were obviously used as either consulting rooms or offices.

6 In the case of 21 Swinbourne Street Botany, the road reserves adjacent to the above properties are predominantly residential with some local shops. The existing phone booth is located between two local shops with attached dwellings. Immediately to the east of the existing telephone booth there are two local shops and residential. To the west and north is residential development. Directly adjacent the phone booth is zone Residential 2A land, as is all the other land within sight of the booth.

7 In the case of 1629 Botany Road Banksmeadow, the booth is immediately adjacent zone 3A land, known as the Banksmeadow town centre. Immediately east of the existing phone booths is a residential dwelling, then commercial development. Also directly opposite is a hotel and a campervan rental property, which would appear to be in the Residential 2A zone, and would be existing non-conforming uses in that location.

8 In the previous location, 21 Swinbourne Street, I should mention that local shops are permissible in the residential zone.

9 At 226 Bunnerong Road Hillsdale, the telephone booth is located on the western side of Bunnerong Road between Flint Street and Smith Street. Actually when we visited this site it was slightly into Flint Street, off Bunnerong Road adjacent a dwelling. The zonings in this location are the land adjacent the booth is zoned Residential 2A and opposite across Flint Street is zoned Residential 2B and opposite the site across Bunnerong Road is actually Randwick Council area, a large park.

10 It arose in evidence that on the corner of Bunnerong Road and Flint Street is a directional sign to a car park for a shopping centre that is slightly to the south on Bunnerong Road, from the phone booth. In that case the access driveways that come through to Flint Street are zoned 3A Business.

11 Also in the Residential 2B zone, two house sites from the corner of Flint Street and Bunnerong Road, is a dentist's surgery and next to that between it and the shopping centre is one house and then a community hall.

12 The plans of each proposal shows signs are on one side only of each booth. The signs are 1.47 m high and 0.7 m wide and are on translucent acrylic sheet so they can be illuminated from behind. The new booths will look the same as the existing ones, except for the 1629 Botany Road, where two existing booths will reduce to one, and at the existing 206 King Street site, the phone booth is actually a bar-style booth and it will become an enclosed booth like the others. The booths will have the typical illuminated orange roof with a Telstra sign.

13 The booths themselves are exempt development from consent under Exhibit 5, the Commonwealth of Australia Telecommunication Act 1997, Determination of Low Impact Facilities 1997, Pt 5, .provided they are: (a) solely for carriage of services, (b) not designed for other uses, example vending machines, (c) not fitted with devices for other uses, and (d) not used for advertising other than for telephone services, 14 As a result the application does not revolve around the phone booths. The applications are for the signs that are sought to go on them. The issues are similar in each case, with the main variation being whether the sign is adjacent zoned residential land, or zoned business land under the Botany Local Environmental Plan 1995, or near a combination of the two. The issues for each sign are in Exhibit 4. I shall read only the issues related to 206 King Street booth, as it refers to both zones. State Environmental Planning Policy 64 - Advertising and Signage 1. The proposed development does not satisfy the following aims and objectives of cl 3 of the SEPP 64, Advertising and Signage. a) To ensure that signage is compatible with the desired amenity and visual character of an area, and is of a high quality design and finish. 2. The proposed development does not comply with cl 22(2)(B)(iii) of SEPP 64, in that the proposed advertisement will exceed 20 per cent of the above ground elevation, and the SEPP 1 objection that the development standard is unreasonable and unnecessary is not well founded. 3. The proposal is not acceptable in terms of its impacts when assessed in accordance with the assessment criteria in schedule 1 of SEPP 64 in that, (a) the proposal is not compatible with the existing or design of future character of the area or locality. (b) the proposal detracts from the amenity and visual quality of the residential area. (c) the proposal is not compatible with the scale, proportion and other characteristics of the site, or building or both, on which the sign is to be located. 4. As the proposal is not consistent with the objectives of SEPP 64 as set out in cl 3(1)(A) and on assessment in accordance with the assessment criteria in schedule 1, the proposal is not acceptable in terms of its impacts. The consent authority in those circumstances must not grant consent to the application under cl 13 of SEPP 64. 5. Botany Local Environmental Plan 1995 , the proposal does not satisfy the objectives of Botany LEP 1995 in that: (a) It does not ensure the advertisers messages and images are conveyed in a way that compliments and respects the location and character of the locality, in which they are displayed. Reference cl 5(8A)(a). (b) It does not promote compatibility between the outdoor advertising and the streetscape and character of the locality, reference cl 5(8A)(b). (c) It does not reduce visual clutter caused by the proliferation of signs, reference cl 5(8A)(c). 6. The proposed development is: (a) Not compatible with the nature of development permissible on neighbouring land. (b) Is not consistent with the objectives of this plan, and the objectives of the zoning applying to the neighbouring land and thus development consent cannot be granted to the proposal under cl 19(2) of the Local Environmental Plan. Particulars (1) The adjoining land is zoned Residential 2A, under which advertising structures are prohibited, and is also adjoining general business 3A zoned land. (2) The proposal does not protect areas from inappropriate development, reference cl 5(1)(e). (3) The proposal does not encourage and improve visual amenity of the Local Government area of Botany, reference cl 5(9)(b). (4) The proposed development does not satisfy the primary objectives of the Residential 2A zone in that it does not provide for the development and use of detached dwelling houses and semi-detached dwellings, as the predominant built form and is not a community and service use. (5) The proposed development does not satisfy the secondary objectives of the Residential 2A zone namely: (a) to ensure that building form including alterations and additions is in character with surrounding development and does not detract from the amenity of surrounding residents or the existing quality of the environment. (b) to allow certa in non-residential development which provides servic es for residents, and which is of a type and scale which does not interfere with the amenity of surrounding residential uses. (6) The proposed development does not satisfy the primary objective for the General Business 3A zone as it does not reinforce the historical development of business and shopping locations in the Local Government area of Botany Bay City, by providing a range of retail business and professional service activities which will provide services and employment opportunities for the community. (7) The proposal does not satisfy secondary objective D of the General Business 3A zone, in that it does not improve the environmental amenity of commercial areas, as the sign adds visual clutter. Code for the control of advertising signs visible from a public place, public reserve or from any navigable water. 7. The proposed development is prohibited under the code for the control of advertising signs visible from a public place, public reserve, or from any navigable water, as it is to be erected within the road reserve. 8. The proposed development does not comply with the provisions of section 4.5(i) and section 5.2.1 of council's draft Development Control Plan 41 , in that all forms of advertising, unless otherwise approved by council are not permitted. 15 The respondent's evidence came from Ms P Mikhail, town planner for the council, and Mr R J Dowsett, manager development assessment. The applicant's evidence came from Mr N Ingham, consultant town planner. Issue 8 refers to council draft advertising signs, Development Control Plan No. 41. That issue is deleted by the respondent in each case.

16 Issue 7 in each case refers to the code for the control of advertising signs visible from a public place, public reserve or from any navigable water. The applicant complained that the code had not been available to the public and its status was unknown. Mr Dowsett was called and advised: (a) the code is not usually available to the public, it is only on the in-house staff intranet of the council. (b) he could remember in about 1985 being at a building committee meeting that adopted the code, and he assumed it had gone to a full council meeting, but could find no record of a resolution. (c) the fact that section A of the code appeared to prohibit advertising signs in many locations where they are permissible under the Local Environmental Plan is relieved by a clause at the end of the code that allowed flexibility to approve, depending on the merits of each case. He did not see this as a failure to relate to the Local Environment Plan provisions to the code. (d) he did not think the code had been exhibited for public comment, nor had it been reviewed for its effectiveness. 17 Based on that evidence alone, the code fails the tests in Stockland v Manly [2004] NSW LEC 472 paragraph 92 McClelland CJ, and I give it no weight.

18 Mr Dowsett was asked if council street furniture having no advertising signs permitted on it, was a result of the streetscape or shopping centre beautification policy or development control plan. He said it was not and that it was council's practice simply to not allow signs on street furniture and that council took opportunities for improvement of its various precincts as the opportunities presented themselves.

19 He was also asked if he knew how long a directional sign at the corner of Flint and Bunnerong Road for the shopping centre car park near there, had been erected. He said he only became aware of that sign about one year ago. Ms Mikhail said she lived in the area and that it had been there for 15 years to her memory.

20 It became clear that the two main statutes applicable in these cases was State Environmental Planning Policy No. 6 -, Advertising and Signage, and the Botany Local Environmental Plan 1995, cl 19, development on land shown unzoned on a map, and cl 5(8)(a) the objectives of the Local Environmental Plan regarding outdoor advertising, and cl 5(9)(b) objectives regarding visual amenity and advertising signs.

21 Turning to the Local Environmental Plan first, I note that cl 19(2)A requires satisfaction that general advertising signs proposed are compatible with the nature of development permissible on neighbouring land to the unzoned land on which the signs are intended. The respondent said that it pressed the zoning of adjacent land to each sign due to the small size and small visual catchment of the signs.

22 Mr Ingham sought to widen the catchment to neighbouring land a little distance away that is business zone in some cases, but I do not accept that for the reasons given by the respondent. The respondent also pressed that the nature of permissible development in the zone 2A and 2B Residential land, did not include general advertising signs that are prohibited. Only building or business identification signs are permitted with consent.

23 The applicant put that in the case of 21 Swinbourne and 226 Bunnerong Road where residential zones only were adjacent, there were existing uses, some non-confirming existing uses and some permissible that had general advertising signs that created a context where signs on the phone booths would not be out of place.

24 Ms Mikhail said that being prohibited in the locations where residential zones are adjacent meant that even if there were some existing non-complying signs the future character sought by the council statute, through the Local Environmental Plan, meant general advertising was not a compatible use and must add to visual clutter and not improve the amenity. The visual clutter existed now to some extent, the applicant said, due to the advertising on the booths now. The advertising was in the main, for Telstra services. The applicant said changing to general advertising would make no difference.

25 I have concluded that the objectives of the residential zones for their future character must be that there be no general advertising and that any non-complying existing signs are expected to be eliminated over time. In State Environmental Planning Policy 64 it is also my conclusion that the signs at these two locations would not be acceptable under cl 13(B) and schedule 1 character of the area.

26 In the case of 226 Bunnerong Road and 21 Swinbourne Street therefore, I find a basic incompatibility and inconsistency under cl 19(2)(A)(B) of the Local Environmental Plan and antipathy under Schaeffer v Hawkesbury [77] LGRA Pearlman CJ and refuse those signs.

27 In respect of the other three that are adjacent Business 3A zone land the same situation does not exist. That zone permits general advertising such that the character of the locality will in the future continue to have general advertising.

28 If the council had formally adopted a policy for not having general advertising on street facilities such as bus shelters, bus seats, flagpoles, rubbish bins etcetera that are also on the unzoned road reservations it would not be unreasonable to include phone booths in that policy and also refuse any general advertising except as permitted under the Commonwealth statute, signs relating to Telstra services.

29 Based on the council's practices if it had adopted a streetscape or a shopping centre improvement development control plan it would probably include in its provisions the prevention of general advertising on facilities such as phone booths but neither of these types of legislation are available and the respondent could only press cl 19(2)(A) and (B) and I have concluded they do not prove incompatibility or inconsistency with the nature of permissible uses on adjacent land or the objectives of the local environmental plan and the adjacent business zonings. Therefore I pass to the provisions of State Environmental Planning Policy No. 64.

30 In that the applicable provisions are cl (3)(1)A and in the advertisements adjacent the business zone I accept for the reasons given above there is no conflict with them.

31 The next provision is cl 13 and Sch 1. In view of the existence of the phone booths that are to be replaced adjacent business zoning and the small size of the signs and the limitation of any potential precedent or proliferation of the signs due to the requirement of their being attached to a phone booth it is my conclusion there is no reason under Sch 1 that they would be unacceptable.

32 The last provision of State Environmental Planning Policy No. 64 is cl 22 wall advertisements. Clause 22(2)(b)(iii) and cl (22)(3) were the subject of evidence. The applicant said the phone booths could not be a building as intended by cl 22(3) and drawings of a booth could not be construed as building plans for the determination of wall areas and therefore the maximum 20 per cent of wall area for a sign could not apply. The respondent pointed to a definition of a building in the Environmental Planning and Assessment Act in that it includes a structure which a booth must certainly be if not a building in the conventional sense.

33 Ms Mikhail said the provisions of cl 22(2)(b) looked at a range of building sizes under (i), (ii) and (iii) in order to control the proportions of signs so they did not dominate, therefore the requirement on maximum sign size in relation to a wall size must apply and I agree with her evidence.

34 The plans of the applications in each case are site plans and building plans. As a result a State Environmental Planning Policy No. 1 objection needs to be considered and had been filed by the applicant in each case. For the reasons set out in each of the three cases in the objections lodged I accept that these objections are well founded and compliance with the statute in these particular cases are unnecessary and unreasonable therefore the orders of the Court are: 1. Appeal No.10594 of 2006 in respect of DA2007/53 at 226 Bunnerong Road and DA 2007/55 at 21 Swinbourne Street are dismissed. 2. Appeal No.10594 of 2006 in respect of DA2007/052 at 909 Botany Road, Rosebery; DA2007/54 at 206 King Street, Mascot; and DA2007/56 at 1629 Botany Road, Banksmeadow, is upheld and consent is granted to a General Advertising Sign on each of the Telstra phone booths in these locations, as shown in the site plans and booth building plans in each application all subject to the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits 4, 6, A, and B. ___________________ K G Hoffman Commissioner of the Court Ljr/rjs

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.