Key points

This appeal related to a modification application to convert a static advertising sign into a digital advertising sign.

One of the key issues the Court had to consider was whether the proposed sign was substantially the same as the existing sign. While this issue was not raised by the Council, it was a jurisdictional pre-requisite the Court had to be satisfied of.

Background

The Applicant sought to modify a development consent to replace an approved existing static advertising sign, which was illuminated by three floodlights mounted along the edge of the sign until 10 p.m. each day, with a new digital sign.

The proposed sign was slightly smaller than the existing sign, but was proposed to:

• be positioned in the same location, with the same orientation as the existing sign,
• use the same structural support as the existing sign,
• include a steel cabinet to house the digital screen, and
• display advertisements from 6 a.m. to 10 p.m. daily, with each advertisement displayed for 10 seconds before changing to another advertisement.

While the Council did not argue the proposed sign was not substantially the same as the originally approved sign, the Court needed to be independently satisfied of that matter before it could consider granting approval to the modification application.

The Applicant argued the proposed sign was substantially the same as the existing sign because, although the advertisements were proposed to change every 10 seconds, the sign otherwise remained static and the sign was for the same purpose as the originally approved sign.

Findings

Ultimately, the Court found that the proposed sign was not substantially the same as the approved sign. Rather, it was a “new and essentially different type of sign”, resulting in a “radical transformation” of the existing sign. The Court likened the proposed sign to an LED television and the existing sign to a painting or poster. While both may display an image, an LED television and a painting or poster are fundamentally different.

The proposed sign did not have “essentially or materially the same essence” as the existing sign, using the test explained by Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85.

Although the use was to remain the same, the Court reiterated the warning given in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 that it is not enough, for the purposes of determining whether proposed development is substantially the same, to only focus on whether the approved use will remain the same under a proposed modification application.
The Court went on to say that even if the proposed sign was substantially the same as the approved sign, it would refuse the application on merit grounds in any event. Namely, on the basis that the proposed sign would reduce the safety for road users by unacceptably increasing the potential for driver distraction and risk of collision.

Key takeaways

This decision is a useful reminder that:

1. A modification application can only be approved where the development as proposed is substantially the same as the originally approved development.
2. The onus is on the Applicant to demonstrate this, even if it is not raised by Council during appeal proceedings before the Land and Environment Court.
3. The assessment requires identifying material and essential features of both the original development and proposed modified development. It is not sufficient to simply consider whether the “use” remains the same.