Advantageous Promotions Pty Limited v Woollahra MC [2005] NSWLEC 52

Land and Environment Court of New South Wales

CITATION : Advantageous Promotions Pty Limited v Woollahra MC [2005] NSWLEC 52

APPLICANT Advantageous Promotions Pty Limited

PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11220 of 2004

CORAM: Tuor C.

Development Application :- Advertising sign distinction between building and business identification sign and advertising sign KEY ISSUES: compatibility with desired amenity and visual character effectiveness of communication quality of design and finish

State Environmental Planning Policy No 64 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Environmental Planning and Assessment Act 1979

DATES OF HEARING: 03/02/2005 EX TEMPORE JUDGMENT DATE : 02/07/2005

APPLICANT Mr J Maston, barrister Verekes

LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor Michell Sillar

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

7 February 2005

11220 of 2004 Advantageous Promotions Pty Limited v Woollahra Municipal Council

JUDGMENT 1 This is an appeal against a refusal by Woollahra Council (the council) of a development application (DA288/2004) to "change an approved signboard" on the western elevation of the Edgecliff Centre Building at 203-233 New South Head Road, Edgecliff. 2 A development application (DA1175/2001) for the existing signboard was approved by the council on 25 June 2002, subject to condition 2, which states that:

2. Streetscape

In order for the proposal to comply with the aims, objectives and controls of the Edgecliff 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".

3 The approved signboard, or wall sign, replaced two existing signs that identified the tenants of the building, and relocated the Edgecliff Centre sign to the northern facade of the building. The approved sign is 3.3m in height and 12.66m in width, with a total area of 42.41sqm. It is located approximately 13m above street level. The structure is a metal frame with printed vinyl skin placed over it to create the sign. The sign is externally illuminated.

4 The approved sign has been erected on the building and the Court was therefore able to view the sign and the surrounding area. No expert evidence was provided and no objections to the sign were received. Details of the site, its context and the history of the application are provided in the Statement of Basic Facts and the Statement of Environmental Effects and council's Assessment Reports for both applications.

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. 6 The key issue is whether the proposal satisfies the aims and objectives of cl. 3(a) of State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64), which are:

3(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. Planning Framework 7 SEPP 64 separately defines building identification signs, business identification signs and advertisements as:

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 places 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.

Advertisement means signage to which Part 3 applies and includes any advertising structure for the advertisement. 8 Part 3 of SEPP 64 applies to any sign other than business or building identification signs, exempt development, or signage on vehicles.

9 The proposal is an advertisement and Part 3 therefore applies. Part 3 includes a number of requirements for an advertisement in addition to those requirements for all signage set out in cl. 8, which 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 cl. 3(1)(a), and

(b) that the signage the subject to the application satisfies the assessment criteria specified in Schedule 1. 10 The assessment criteria of relevance in Schedule 1 include a consideration of the character of the area, streetscape, setting or landscape, site and building.

11 The additional requirements for advertising signs in Part 3 include that the proposal be referred to the Department of Infrastructure, Planning and Natural Resources (DIPNR). The reply from DIPNR stated that it would provide no comments on the application. Additionally, the Roads and Traffic Authority (RTA), did not object to the proposal, subject to the imposition of conditions.

12 Clause 22 of Part 3 limits the number of advertising wall signs to one per building elevation, and precludes a wall sign if there is a building or business identification sign on that building elevation. Clause 22 also includes requirements for the size and location of advertising wall signs. Council was satisfied that these requirements were met. 13 Woollahra Local Environmental Plan 1995 (LEP95) does not separately define building or business identification signs. Advertisement is defined in LEP 95 as:

Advertisement means a display by the use of colour, pattern, symbols, messages or other devices for promotional purposes or for conveying information, instructions, directions or the like, whether or not the display includes the erection of a structure or the carrying out of a work. 14 The site is zoned General Business 3(a) under LEP95. Advertisements are permissible within this zone with consent. The objectives of the zone do not specifically relate to advertising, but to the provision of commercial and retail uses. The objectives of LEP95 in clause 2(m) in relation to outdoor advertising are:

(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. 15 The Edgecliff Commercial Centre Development Control Plan (DCP) came into force on 21 June 1995. The DCP includes overall objectives for the commercial centre, including 3.2(a):

To promote for the centre an urban environment which meets high standards of visual quality and pedestrian amenity. 16 Part 7 of the DCP controls advertising and included the following objectives:

a) to allow advertising signs and structures which promote an attractive streetscape, and

b) to prohibit advertising signs along New South Head Road that are considered to be potential traffic hazards. 17 The controls relevantly include 7.4:

A sign with a name of the building and/or the principal tenants is the only external sign permitted for commercial premises. 18 Mr Maston's submission on behalf of the applicant was that the proposal partially complied with the requirements of cl. 7.4, as each advertiser was required to sublease a part of the building which is leased to the applicant. A product of the sublessee may then be advertised for the period of the lease. For example, if an iPod is advertised, the Apple Company would sign the sublease. It is unclear as to whether Apple would occupy the premises or that the iPod would be available for sale from the premises. Mr Maston stated that the purpose of this arrangement was to establish a nexus between the advertisement and the building.

19 From an examination of the leases in exhibit A, I do not understand how the nexus has been established, other than on paper, or how this satisfies the requirements of cl. 7.4 in the DCP which limits signage to the name of the building and/or its principal tenants, not products. 20 The other document of relevance is the Code for Advertising Signs (the Code) adopted by council in 1987. 21 The parties stated that there was no inconsistency between the provisions of SEPP 64 and those of the LEP, DCP and Code. Mr Maston's submission was that little weight should be given to the specific provisions of the DCP and Code as the overall objectives of these documents were met. Findings 22 As stated above, the key question before the Court is whether the proposed sign:

(i) is compatible with the desired amenity and visual character of the area.

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish. 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. 26 The operation of commercial and retail premises is dependent upon them being recognised and clearly identified. Signage that achieves this is generally considered to be a necessary adjunct for these uses. There is also a strong association between the building and business identified and the building itself. The sign communicates a message identifying the location of the building and its occupants.

27 In relation to third party or general advertising, there needs to be little or no relationship between the building or its tenants and the product or item advertised. The imperative for third party advertising is to maximize exposure for the product or item being advertised and to communicate a message about this product or item, not about the building upon which the sign is situated or about the tenants, which the building accommodates.

28 The existing sign was approved on the basis that it identified the building and its tenants and the strong submission from the applicant that this was necessary to ensure the ongoing commercial viability of the Centre. The existing sign also replaced two existing signs and a building identification sign and was considered acceptable by council as it reduced the visual impact. 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.

30 In considering whether the sign meets cl. 3(a)(i) of SEPP 64, namely whether the proposal is compatible with the desired amenity and visual character of the area, I find that it is not.

31 The existing character of the area is signs that are generally not above awnings and which identify buildings and their occupants. While there are a number of these identification signs, they are much smaller than the sign proposed. The proposal is for a large wall sign, above the awning and used for general advertising. It is therefore different to the size, location and purpose of existing signs and is not compatible with the existing character of the area.

32 The desired future character is articulated in the council planning documents and cl. 7.4 of the DCP states that signage is to identify buildings and/or tenants. In a commercial/retail area such as Edgecliff the demand for signage to satisfy this identification purpose is great. The area already exhibits a degree of visual clutter and a large sign such as the one proposed adds to this clutter.

33 I note that cl. 19 of SEPP 64 requires that for signs greater than 45sqm a consent authority cannot grant consent unless a development control plan has been prepared on the basis of an advertising design analysis for the relevant area or precinct. The proposed sign is 41.41sqm, just below this requirement. 34 Clause 3(a)(ii) requires that the sign provide effective communication in suitable locations. As stated above, there is already considerable building and business identification signage in the area and a degree of clutter, which reduces the effectiveness of the message to be communicated by these signs. The proposed sign is in a prominent location and will be clearly visible along New South Head Road. While this will achieve effective communication of the message to be conveyed on the sign, it will detract from the effectiveness of other signs in the area and will not effectively identify the building or its tenants, which is the purpose for which the signage in the locality is considered suitable under the DCP.

35 Clause 3(a)(iii) requires that the sign be of high quality design and finish. I recognise that council did not raise any issue with the design or finish of either the existing sign or the proposed sign. However, with the advantage of a site visit and being able to view the sign, I do not agree that a large vinyl sign on a brick façade in a location such as Edgecliff is of high quality design and finish, regardless of its graphics or content. 36 The facade of the building is a large expanse of dark brick with few architectural features. The existing sign has been located to reflect the size of a brick panel, does not cover any windows or project from the façade as required by cl. 22 of SEPP 64. However, the existing sign does not improve the bland appearance of the façade but introduces an element, which I do not consider to be of high quality or design, which by its contrast with the brickwork attracts attention to itself and to the façade. I accept that there is a need for building identification signage, but do not consider that either the existing or the proposed sign has an acceptable visual impact on the building or the area.

37 In considering whether the proposal meets the above objectives, I have also considered the matters in Schedule 1 of SEPP 64. I find that the proposal does not achieve these objectives. As the proposal fails on these grounds, it is not necessary to address the matters in the LEP, DCP or Code any further. Orders 38 The orders of the Court are therefore: 1. The appeal is dismissed. 2. The development application 228/2004 for a multipurpose signboard on the western elevation of the Edgecliff Centre Building at 203-233 New South Head Road, Edgecliff, is refused. 3. The exhibits, except Exhibits 1 and 2, may be returned.

4. No order as to costs.

______________________ Annelise Tuor Commissioner of the Court

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