Background
Barr Property and Planning Pty Ltd appealed against Coffs Harbour City Council’s refusal to modify the consent governing an advertising sign at 39 Grafton Street, Coffs Harbour. The existing LED sign faced northbound Pacific Highway traffic and operated with a 24-hour dwell time. As amended during the proceedings, the application sought a 25-second dwell time, a nightly shutdown between 11 p.m. and 6 a.m., reduced luminance, removal of a webcam, and restrictions against animated, flashing, or live content.
The original 1998 consent approved a non-illuminated vinyl advertising panel, changed manually from time to time, measuring approximately 12.8 metres by 2.16 metres and positioned flush with the building façade below the roofline. A 2018 modification had permitted a digital sign subject to a 24-hour minimum display period and changes occurring only between 1 a.m. and 3 a.m.
The Council and Transport for NSW argued that the proposed development was not the same or substantially the same as the development originally approved, as required by s 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 (NSW). They also raised road and pedestrian safety concerns.
The Court’s Holding
The Court dismissed the appeal because the statutory precondition in s 4.55(2)(a) was not satisfied. Comparing the proposed development with the development originally approved in 1998, the Court found substantial physical and qualitative differences: the sign’s area had increased by about 48%, its height had increased, it projected above the building and into the road reserve, and its internally illuminated digital format differed materially from the original non-illuminated vinyl panel.
The proposed 25-second dwell time was also an essential difference. It would permit approximately 2,438 images each operating day, compared with the original sign’s manually changed, infrequent displays. Taken together, the differences changed the character and essence of the development, making the proposal effectively a new and essentially different sign rather than a modification of the original development. Because the Court lacked power to approve the application, it did not determine the proposal’s planning merits or the respondents’ safety objections.
Key Takeaways
- A modification under s 4.55(2) must remain the same or substantially the same development as that originally approved, before any intervening modifications.
- The comparison extends beyond physical dimensions to qualitative features such as illumination, display technology, visual character, and the frequency with which advertising changes.
- If the statutory threshold is not met, the Court has no power to approve the modification and need not consider its merits.
Why It Matters
The decision illustrates the limits of using a modification application to update older advertising infrastructure. A change from a manually altered vinyl panel to a frequently changing digital display may alter the development’s essential character, particularly when accompanied by material changes to size, position, illumination, and visibility.
Applicants must compare a proposed modification with the consent as originally granted, not merely with the development in its presently modified or constructed form. Earlier approval of an intervening modification does not itself establish that a further proposal satisfies the statutory test.