Advantageous Promotions Pty Limited v Woollahra Municipal Council [2005] NSWLEC 350

Land and Environment Court of New South Wales

CITATION : Advantageous Promotions Pty Limited v Woollahra Municipal Council [2005] NSWLEC 350

APPLICANT Advantageous Promotions Pty Limited PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11220 of 2004

CORAM: Talbot J

Appeal :- obligation to give reasons - procedural fairness - disclosure of evidentiary basis for decision. KEY ISSUES: Construction and Interpretation:- whether meaning of words used in planning instrument should be read down in context.

Land and Environment Court Act 1979 s 38 State Environmental Planning Policy No. 64 - Advertising and Signage cl 3, cl 6, cl 8, cl 9, cl 13, cl 17, cl 29, Sch 1 LEGISLATION CITED: Edgecliff Commercial Centre Development Control Plan cl 7.4 Woollahra Local Environmental Plan 1995

Advantageous Promotions Pty Limited v Woollahra MC [2005] NSWLEC 52, unreported; Coulton and Others v Holcombe and Others (1986) 162 CLR 1; Hope v The Council of the City of Bathurst (1980) 144 CLR 1 ; Londish v Knox Grammar School and Others (1997) 97 LGERA 1 ; CASES CITED: New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 ; O'Brien and Others v Komesaroff (1982) 150 CLR 310 ; Randall Pty Limited v Willoughby City Council (2004) 137 LGERA 25 ; Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55

DATES OF HEARING: 16/06/2005

DATE OF JUDGMENT: 06/30/2005

APPLICANT Mr M L D Einfeld QC with Mr J B Maston (Barrister) SOLICITORS Verekers LEGAL REPRESENTATIVES:

RESPONDENT Mr P R Clay (Barrister) SOLICITORS Michell Sillar

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

30 June 2005

11220 of 2004 Advantageous Promotions Pty Limited v Woollahra Municipal Council

JUDGMENT Introduction 1 Talbot J: Advantageous Promotions Pty Limited ("the applicant") appeals against the decision by Commissioner Tuor to determine Development Application No.288/2004/1 (made to the respondent Council on 12 May 2004) by the refusal of consent to the display, upon an existing advertising structure, multi-purpose advertising not limited to the identification of the building known as the Edgecliff Retail Centre on New South Head Road, Edgecliff or its tenants. No change to the structure or illumination of the existing sign in respect of which the Council granted development consent on 25 June 2002 is proposed. By condition 2 of the original consent the Council restricted the advertising content of the existing sign as follows:- 2. Streetscape In order for the proposal to comply with the aims, objectives and controls of the Edgecliff Commercial Centre DCP, the advertising content of the sign shall be limited to the name of the building and the names or logos of tenants of the Edgecliff Centre. 2 In a written judgment on 7 February 2005 (Advantageous Promotions Pty Limited v Woollahra MC [2005] NSWLEC 52, unreported) the learned Commissioner identified the key issue as whether the proposal satisfied the aims and objectives of State Environmental Planning Policy No. 64 – Advertising and Signage ("SEPP 64"). Planning controls 3 The aims and objectives of SEPP 64 are set out in the instrument as follows:- 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. (2) This Policy does not regulate the content of signage and does not require consent for a change in the content of signage. 4 The Commissioner referred only to subparagraphs (i), (ii) and (iii) of 3(1)(a).

5 Woollahra Local Environmental Plan 1995 ("WLEP") contains the following objectives relevant to outdoor advertising:- (i) to convey advertisers' messages and images while complementing and conforming to both the buildings on which they are displayed and the character of the locality, and (ii) to ensure that it does not adversely affect the locality in terms of appearance, size, illumination or overshadowing or in any other way, and (iii) to ensure that it does not lead to visual clutter through the proliferation of signs, and 6 The Edgecliff Centre building is within zone 3(a) – General Business "A" under WLEP. The subject sign is not development which is prohibited in the 3(a) zone nor may it be carried out without development consent. Accordingly, it is development which may be carried out only with development consent. Pursuant to cl 8(5) the Council is not able to grant consent to the sign unless it is of the opinion that the carrying out of the development is consistent with such objectives of the plan and of the zone as it applies to advertising signs. 7 The provisions of the Edgecliff Commercial Centre Development Control Plan ("Edgecliff DCP") contains the following relevant control in relation to advertising:- 7.4 A sign with the name of the building and/or the principal tenants is the only external sign permitted for commercial premises. 8 The applicant contends that the proposal partially complies with the requirements of cl 7.4 as each advertiser will be required to sublease a part of the building for the purpose of establishing a nexus between the advertisement and the building.

The issues

9 It is apparent from the judgment that the Commissioner assessed the merits of the application by reference to the criteria established by SEPP 64. It is not necessary for present purposes to refer to that criteria except to observe that it is more comprehensive, specific and detailed than the more general provisions contained in the WLEP. The respective regimes for assessment of proposed signage under the alternative planning instruments are distinctive and separate. 10 It is the applicant's contention that the aims and objectives stated in cl 3 of SEPP 64, as served by the assessment criteria specified in Schedule 1, have no application where the relevant determination of the consent authority is concerned only with the content of an advertising sign. The applicant's primary argument on appeal is that notwithstanding the provisions of cl 3(2) of SEPP 64, which expressly excludes the regulation of the content of signage from its operation, the Commissioner erred by applying the provisions of SEPP 64 in circumstances where the subject of the development application was the content of the sign. 11 The respondent Council does not accept that the application was in respect of a change in content of the sign in the relevant sense. Instead the application was to change the use of the structure for a different type of signage, namely a change from the purpose of a sign limited to the name of the building and the names or logos of tenants to the display of third party advertising. According to Mr Clay, who appears for the Council, the proposed change was clearly and correctly identified by the Commissioner in paragraphs [5], [23], [24] and [29] of her judgment delivered on 7 February 2005 and set out in this judgment at [27]. 12 Moreover it is the Council's contention that the characterisation of the proposal is a question of fact and not of law unless it goes to jurisdiction (Londish v Knox Grammar School and Others (1997) 97 LGERA 1 and Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55). Furthermore Mr Clay says that as the applicant did not raise the issue of applicability of SEPP 64 before the Commissioner, it should be bound by the way it conducted its case below and not be allowed to raise the issue as a new matter on appeal (Coulton and Others v Holcombe and Others (1986) 162 CLR 1). 13 Although the position taken by the applicant before the Commissioner in relation to the applicability of SEPP 64 is equivocal, a reading of the transcript leaves me in no doubt that it was common ground between the Commissioner and the parties that SEPP 64 in terms had no application to the actual content of an individual advertising sign. Mr Maston (who appeared on behalf of the applicant before Commissioner Tuor and as junior counsel with Mr Einfeld QC in this appeal) did not raise the point directly nor was it made clear that he regarded the issues that arose pursuant to SEPP 64 as being in the alternative. Nevertheless the provisions of the SEPP, WLEP and Edgecliff DCP were before the Commissioner and addressed in the submissions made by both parties. They were the subject of evidence and consideration in the course of the hearing. In the circumstances there can be no question of a denial of procedural fairness arising from an alleged failure to communicate an intention to rely on the criteria in SEPP 64. 14 Mr Clay may be correct that the characterisation of the development for the purpose of determining whether the provisions of SEPP 64 apply is a question of fact. Arguably the determination of the meaning to be attributed to the word "content" may be a question of law or a mixed question of law and fact (Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7-8 and New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 at 511). Notwithstanding whether he is right on that point, if the Commissioner erred by having regard to the provisions of SEPP 64 then she may have committed an error of law by taking into account an irrelevant matter. I therefore propose to determine the question of the applicability of the provisions of SEPP 64.

15 Mr Clay does not concede that if the issue had been raised before the Commissioner the respondent's case would have been conducted in the same way. However he does not explain what the changes would have been. Nevertheless all of the facts relevant to the question of construction have been established. Therefore it will not be inappropriate if the appellant is allowed to raise the point for the first time in this appeal (O'Brien and Others v Komesaroff (1982) 150 CLR 310 at 319).

Whether SEPP 64 applies to the development 16 The following definitions appear in SEPP 64:- advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement. building identification sign means a sign that identifies or names a building, and that may include the name of a business or building, the street number of a building, the nature of the business and a logo or other symbol that identifies the business, but that does not include general advertising of products, goods or services. business identification sign means a sign: (a) that indicates: (i) the name of the person, and (ii) the business carried on by the person, at the premises or place at which the sign is displayed, and (b) that may include the address of the premises or place and a logo or other symbol that identifies the business, but that does not include any advertising relating to a person who does not carry on business at the premises or place. 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 17 The approval by Council in 2002 was a limited consent to attach an advertising structure of a particular type for a specific purpose. The applicant is now effectively seeking to modify the operation of the original consent by deleting the effect of condition 2 so that the ambit of the purpose of the sign is widened. 18 Pursuant to cl 6, SEPP 64 applies to all signage that can be displayed with or without development consent and is visible from any public place. Part 3 controls advertisements other than business identification signs, building identification signs and signage that is exempt development.

19 A consent authority must not grant development consent to an application to display signage (cl 8), an advertisement (cl 13), or advertisement with a specified display area (cl 17) unless the subject of the application is consistent with the objectives of the policy as set out in cl 3(1)(a) and has been assessed by the consent authority in accordance with the criteria in Schedule 1. Schedule 1 specifies assessment criteria in respect of such matters as character of the area, views, streetscape, landscape, illumination and safety. Additional specific controls in respect of advertisements are specified in Part 3, Divisions 1, 2 and 3 and cl 29 in Part 4. 20 The effect of cl 9 is that Part 3 relating to advertisements has no application to a business identification sign or a building identification sign. The latter nevertheless must be considered pursuant to cl 8 that deals with all signage, that by definition includes businesses and building identification signs. Business identification signs and building identification signs are therefore excluded from the application of Part 3. Accordingly they are covered by Part 2 and Part 4 of the instrument. 21 A consideration of the provisions of the SEPP read as a whole point to a categorisation of signage according to its purpose. The purpose can be determined from a description of the proposed content in general terms.

22 It is appropriate to construe the words of the SEPP (and in particular the word "content") in their total context. If necessary, this enables the Court to read down the meaning of the word so long as the result is confined to the range of possible meanings. As with any environmental planning instrument, the SEPP must be construed in a practical context. It is obviously relevant in a planning assessment that consideration and regard be given to the nature of the physical structure and its general purpose.

23 It is consistent with the operation of SEPP 64 to confine the meaning of "content" as it appears in the objectives in cl 3 to the particular writing or other depiction of the subject matter within or on an individual sign. In other words once the purpose of signage is identified by reference to a general description of the content, the actual matter to be displayed is not otherwise controlled by SEPP 64.

24 The draftsperson of SEPP 64 clearly intended that business identification and building identification signs be assessed in a different way to advertisements of a more general nature. To that extent at least there is an essential and underlying distinction between the types of signs by reference to the purpose of the message to be displayed. 25 It follows from the above analysis that the reference to "content" where it appears in cl 3(1)(b) and 3(2) is to be construed in a narrower context than the one contended for by the applicant.

26 There was no error by the Commissioner when she considered the criteria specified in Schedule 1. Conversely she was required to have regard to the provisions of SEPP 64. The application was in truth an application to use the structure or space on the side of the building for a different type of signage to that which had been previously approved. The approved existing use of the structure is distinct from the proposed use of the structure for general advertising. The applicant has recognised this inherent change by making a fresh development application. All that is currently approved is a structure for the purpose of advertising the name of the building and the names or logos of the tenants. The fresh application is required to be dealt with on its merits pursuant to SEPP 64 as an advertisement other than a business identification sign or building identification sign. 27 The Commissioner correctly identified the key question before the Court as whether the proposed sign meets the objectives set out in cl 3(1)(a)(i), (ii) and (iii) of SEPP 64. She set out her approach at paragraphs [5],[23],[24],[25] and [29] already referred to at [11] above as follows:- 5 The applicant has not sought to amend the original application through the deletion of condition 2 but has lodged a new application. This application does not change the structure or illumination of the approved sign, but seeks approval for it to be used for multipurpose advertising, mainly general or third party advertising rather than for building or tenant identification. 23 In assessing whether these objectives of SEPP 64 are met, it is necessary to understand the difference between the purpose of the proposed sign (generally third party advertising) and that of the existing sign (building and business identification), as no physical changes to the sign are proposed. 24 SEPP 64 makes a clear distinction through its definitions and provisions between signage that is for building or business identification and signage that is for advertising. Although the rationale for this distinction is not expressed in the policy, it is necessary for it to be understood to assess the application. 25 The purpose of signs is to attract attention to convey a message. As such they have a visual impact. This visual impact is exacerbated by the number, size and location of signs and is a matter that SEPP 64 and council's planning controls seek to minimise. 29 The proposed sign will serve a different purpose to the approved sign. Despite the tenancy agreements the purpose of the proposed sign is not associated with the building but is advertising as defined by SEPP 64. The applicant's proposed condition to display the names of tenants not less than 28 days of the year does not alter the sign's primary purpose. Amenity/visual character 28 In respect of the Commissioner's findings in relation to these issues the applicant contends that no evidentiary basis for the conclusion exists and the process of reasoning from which it was derived is not exposed within the judgment. 29 The parties agreed that no expert evidence would be relied upon and that after a view of the site and locality, submissions would be made following which judgment could be delivered. The conclusions addressed by the Commissioner in relation to the existing character of the area included "a degree of clutter, which reduces the effectiveness of the message to be communicated by these (existing) signs." She further explained that with the advantage of the site visit and being able to view the existing sign (which Mr Maston recognised should not be taken as a given) she expressed the view that a large vinyl sign on a brick façade in a location such as Edgecliff is not of high quality design and finish, "regardless of its graphics or its content." These are all matters that are clearly capable of being assessed during a site inspection particularly by a Commissioner with expertise in town planning and urban design. Moreover the nature of proceedings in class 1, 2 or 3 of the Court's jurisdiction needs to be borne in mind and particularly s 38 of the Land and Environment Court Act 1979 dealing with procedure, specifically subsection (2) which states:- …the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

30 I reiterate the following extract from the judgment in Randall Pty Limited v Willoughby City Council (2004) 137 LGERA 25 at [17] as a convenient summary of the principles to be applied in respect of the extent to which the Court should examine the decision of a Commissioner on appeal and the duty of a Commissioner to give reasons:- 17 Although a Commissioner may have no less an onerous duty to give reasons for judgment than Judges ( Botany Bay City Council v Farnworth Holdings Pty Limited [2004] NSWCA 157, unreported) nevertheless it is not appropriate, as has been said many times, to examine the judgment of a Commissioner with a " fine-tooth comb " in the same way that a court on appeal may examine the reasoning of a trial judge ( Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368, North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442). Even so, the decision of the Court of Appeal in Athens and Another v Randwick City Council [2002] NSWCA 83, unreported demonstrates that the duty to give reasons extends to provide an ability to understand why the decision was made. It does not call for reference to all the evidence or a tedious explanation of every step in the chain of reasoning. 31 I reject the submission by the applicant that the Commissioner's findings of primary fact were not capable of justifying her conclusion or that she failed to provide sufficient reasons to the extent that her decision was vitiated. Conclusion 32 Having concluded that the Commissioner did not fall into error by applying the provisions of SEPP 64; that it was appropriate to assess the application against the criteria in Schedule 1; that it was open for her to make the findings of fact in relation to the merits of the application based upon the view of the site and that the reasons given in her judgment were sufficient to provide an ability to understand why the decision was made, the applicant's grounds for the appeal have not been made out. 33 There is no evidence to support an allegation made in the applicant's written submissions that the Commissioner denied the applicant procedural fairness. Despite the fact there is no formal record of what took place on the view, it would be most surprising if the issue of visual amenity in respect of the proposed sign as it related to the Edgecliff Centre and its impact considered together with existing signage in the locality was not a focal point of the discussion. There is no complaint by the applicant that it was constrained by the Commissioner in any way or that there was not a full and complete opportunity to present its case. All of the merit matters dealt with by the Commissioner in her judgment were such that she was well able to reach a conclusion from the site inspection. 34 It is apparent to me that the Commissioner was clearly given a choice by Mr Maston during argument that she could either ignore the existence of the existing sign for the purpose of her assessment or alternatively use it as a guide in respect of future impacts. She rightly proceeded on the basis that the development application before her was a fresh application rather than an application to alter an existing sign. 35 The appeal is dismissed. Orders 36 There has been no contention by either party in relation to costs. However the respondent Council has been successful in contesting the appeal and is therefore entitled to the exercise of the Court's discretion in its favour. 37 The final orders I make are:- 1. Appeal dismissed. 2. The applicant is ordered to pay the respondent's costs of the appeal. 3. Exhibits returned.

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