The applicant in this matter, Benmill Pty Ltd, was seeking declaratory relief in relation to the approved use of three illuminated roof signs prominently displayed near the top of a 17-storey commercial office building at 275 Alfred Street in North Sydney.

Benmill contended that the approved use of the signs was, and remains, for the purposes of advertising and is, therefore, a “roof or sky advertisement” as defined by State Environmental Planning Policy No 64—Advertising and Signage (‘SEPP 64’). North Sydney Council disputed this construction and submitted that the approved use of the signs was instead for the purposes of a “building identification sign” as defined in SEPP 64; it contended that Benmill was not entitled to seek the relief it did on the basis of issue estoppel and/or abuse of process.

Council also submitted that the discrete question of the construction of the use permitted by the 2007 Consent and the 2016 Consent was resolved by a Commissioner of the Land and Environment Court in 2018, following a contested hearing.

The applicant engaged the team at Hones Lawyers and the matter was heard by Judge Robson of the Land and Environment Court on Monday 12 August 2019.

The matter was complex and related to previous consents and appeals between the parties and centred on the office building which has three illuminated roof-top signs facing north, south and west, comprising of fabricated lettering and a logo attached to the roof structure by brackets. The north and south elevation signs have both “BAYER” lettering and associated Bayer logo while the west elevation sign has a “BAYER” logo.

After reviewing extensive background documentary material, Judge Robson determined that Benmill was entitled to the declaratory relief that the proper construction of the 2016 Consent is for a “roof or sky advertisement” as that term is defined under SEPP 64.

It was declared that the Development Consent granted and modified by North Sydney Council in 2016 in respect of 275 Alfred Street, North Sydney, was for a “roof or sky advertisement” as that term is defined under SEPP 64.

The judge ordered that unless an application was made by notice of motion before 12 May 2020 for an alternate order, North Sydney Council was to pay Benmill Pty Ltd’s costs of the proceedings.

Read Judge Robson’s judgment.

Solicitors for the Applicant: Jason Hones and Christopher Ters – Environment and Planning Law team

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