Ooh!Media Limited v Willoughby City Council and anor [2022] NSWLEC 1332

Ooh!Media Limited v Willoughby City Council and anor [2022] NSWLEC 1332

The Court dismissed the appeal because the Proposed Sign was not substantially the same development as the Existing Sign. Replacing a metal frame with tensioned vinyl advertising copy changed manually every 28 days with a steel cabinet housing a digital LED screen changing advertisements every 10 seconds was a radical transformation and was qualitatively, essentially and substantially different, so the precondition in s 4.55(2)(a) was not satisfied and the Court had no power to approve the Modification Application. The Court also found that, even if power existed, the Proposed Sign would unacceptably increase driver distraction and reduce road safety at a busy and complex intersection, so...

Jurisdiction
Australia
Judgment Date
28 June 2022
Procedural Posture
Class 1 Appeal Concerning Modification Application DA 2021/23 Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Appeal From Deemed Refusal; Determination of Modification Application
Outcome
Appeal dismissed; Modification Application DA-2021/23 refused.
Legal Topics
['whether Modified Development Is Substantially the Same Development Under S 4.55(2)(a) of the Environmental Planning and Assessment Act 1979' 'digital Conversion of Existing Illuminated Static Advertising Sign' 'road Safety Impacts of Advertising Signage Near a Busy Signalised Intersection' 'consideration of S 4.15 Matters in a Modification Application' 'visual Amenity']
['planning and Environment' 'development Consent Modification' 'outdoor Advertising Signage' 'road Safety'] ['whether Modified Development Is Substantially the Same Development Under S 4.55(2)(a) of the Environmental Planning and Assessment Act 1979' 'digital Conversion of Existing Illuminated Static Advertising Sign' 'road Safety Impacts of Advertising Signage Near a Busy Signalised Intersection' 'consideration of S 4.15 Matters in a Modification Application' 'visual Amenity']

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Procedural Posture

Class 1 Appeal Concerning Modification Application DA 2021/23 Under S 4.55(2) of the Environmental Planning and Assessment Act 1979 / Appeal From Deemed Refusal; Determination of Modification Application

Legal Issues

  1. 1 ['Whether the development to which Development Consent DA-86/322 would relate as modified is substantially the same development as the development for which consent was originally granted.' 'Whether the proposed digital advertising sign would have unacceptable road safety impacts at the intersection of the Pacific Hwy, Boundary St and Corona Ave, Roseville.' 'Whether impacts considered under s 4.15 in a modification application are confined to impacts additional to those of the existing approved development.' 'Whether the proposed sign would have an unacceptable visual impact.']

Ratio Decidendi

The Court dismissed the appeal because the Proposed Sign was not substantially the same development as the Existing Sign. Replacing a metal frame with tensioned vinyl advertising copy changed manually every 28 days with a steel cabinet housing a digital LED screen changing advertisements every 10 seconds was a radical transformation and was qualitatively, essentially and substantially different, so the precondition in s 4.55(2)(a) was not satisfied and the Court had no power to approve the Modification Application. The Court also found that, even if power existed, the Proposed Sign would unacceptably increase driver distraction and reduce road safety at a busy and complex intersection, so...

Court Disposition

Appeal dismissed; Modification Application DA-2021/23 refused.

Orders

  • ['The appeal is dismissed.' 'Modification Application DA-2021/23 to modify Development Consent DA-86/322 to convert an existing illuminated static advertising sign on the land described as Lot 2 DP 170039 known as 962 Pacific Hwy Roseville to a digital advertising sign is determined by way of refusal.' 'All exhibits...