What has happened?
In Healy Capital Pty Ltd v The Council of the City of Sydney [2026] NSWLEC 84, Chief Judge Preston set aside the refusal of a digital advertising sign on the former Grace Bros building on Broadway, Ultimo. The Commissioner had considered the wrong visual impact report.
Context
The applicant proposed replacing an existing static sign with a large digital sign. A visual impact assessment is required for advertisements of this size under the State Environmental Planning Policy (Industry and Employment) 2021.
The Council's urban design expert criticised the original visual impact report. In response, the applicant commissioned a new report and, on the first day of the hearing, obtained leave to amend the development application to rely on it.
The Commissioner then refused consent. She found she could not be satisfied that the sign was compatible with the desired amenity and visual character of the area. In reaching that view, she considered the original, superseded report rather than the new one.
The decision
On an appeal limited to questions of law, the Chief Judge held:
Once a development application is amended, the amended application is the one that must be considered and determined. Here, that included the new visual impact report, not the superseded one.
By assessing the superseded report, the Commissioner failed to consider and determine the application actually before the Court.
A separate argument about the City of Sydney's DCP controls on above-awning signs failed. The DCP was not inconsistent with the State policy, and the Commissioner was entitled to have regard to it.
The matter was sent back to the same Commissioner to determine according to law, and the Council was ordered to pay the costs of the appeal.
How will this affect you?
When an application is amended during an appeal, make sure the decision-maker is working from the current documents, and say so clearly in submissions.
Amending a development application to answer the other side's expert criticism is a legitimate strategy, and the amended material must be considered.
DCP controls remain relevant to the desired character of an area, even where a State policy also regulates the same type of development.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.