What has happened?
In Save the Robots Pty Ltd v The Council of the City of Sydney [2025] NSWLEC 149, Chief Judge Preston dismissed an appeal against the refusal to replace an existing static advertising sign at Taylor Square, Darlinghurst, with a digital sign.
Context
The building is in the Oxford Street heritage conservation area. The State Environmental Planning Policy (Industry and Employment) 2021 prohibits advertisements in heritage areas. To overcome the prohibition, the owner had to establish that using the building for advertising was an "existing use" under s 4.65 of the Environmental Planning and Assessment Act 1979 (EPA Act). If so, it could seek consent to rebuild the sign under the existing use provisions.
The Commissioner granted consent to alterations and a new mixed-use building on the site but refused the digital sign. She found that an existing use had not been established. She also found that, even if one existed, the sign was unacceptable on road safety, heritage and design grounds.
The decision
The appeal, which was limited to questions of law, failed on both grounds:
Existing use. The Commissioner's finding that no existing use had been established was one of fact and disclosed no error of law.
The fallback static sign. The owner argued that the Commissioner should have considered approving a static sign instead, or granting consent subject to a condition requiring the sign to be static. The Chief Judge held that this was not an issue the Commissioner was required to decide. The power to impose conditions modifying a development does not allow a "radical transformation" of the development into something different from what was applied for. A digital sign is fundamentally different from a static one.
The owner was ordered to pay the Council's costs.
How will this affect you?
Existing use rights must be proved by evidence. They cannot be assumed from the long-standing presence of a sign.
Conditions cannot be used to convert an application into a different development. If a fallback option is wanted, consider including it in the application as an alternative.
Advertising in heritage conservation areas faces significant legal hurdles.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.