425-429 Pacific Highway Pty Ltd v North Sydney Council [2026] NSWLEC 1339

Catchwords: MODIFICATION APPLICATION — signage — conciliation conference — agreement between parties — orders Land and Environment Court New South Wales Medium Neutral Citation: 425-429 Pacific Highway Pty Ltd v North Sydney Council [2026] NSWLEC 1339 Hearing dates: Conciliation conference on 1 June 2026 Date of orders: 9 June 2026 Decision date: 09 June 2026 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. DA198/2020 is modified in the terms in Annexure A. (3) Development Consent No. DA198/2020/4 as modified by the Court is contained in Annexure B. Catchwords: MODIFICATION APPLICATION — signage — conciliation conference — agreement between parties — orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9 Land Environment Court Act 1979 (NSW) , s 34 Environmental Planning and Assessment Regulation 2021 (NSW), s 38, 113 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Industry and Employment) 2021, s 3.12, Sch 5 s 7 Category: Principal judgment Parties: 425-429 Pacific Highway Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) North Sydney Council (Respondent) File Number(s): 2025/478584 Publication restriction: Nil JUDGMENT COMMISSIONER : This appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) seeking to modify development consent No DA198/20 , granted on 2 December 2020, for alterations and additions to levels 4 and 5 of a heritage listed commercial and retail building, and for changes to roof an d signage including the demolition of existing AGC sign, demolition of the existing advertising billboard and construction of new LED advertising sign at 425-429 Pacific Highway , Crows Nest (the original consent). In broad terms, modification application No DA198/20/4 seeks to modify the terms of Condition G2 of the conditions of consent to extend the duration of consent for approved LED signage from 10 years to 15 years , and to impose a condition to reduce the luminance of the sign from that originally approved. As the modification application was not otherwise determined, the Applicant in these proceedings, 425-429 Pacific Highway Pty Ltd (the Applicant), appealed its deemed refusal on 10 December 2025. T he Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 (NSW) (LEC Act) on 1 June 2026 , at which I presided . Prior to the conciliation conference, the parties agreed certain amendments that, in the view of the Respondent, North Sydney Council, resolved the matters in contention . On the basis of those amend ments , and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Council approved the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 21 May 2026 . The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to an amended Lighting Impact Assessment prepared by ElectroLight dated 8 April 2026 (Lighting Assessment) . Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties ’ decision if the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [ 17 ]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. Firstly, as the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions , being the test applied by s 34(3) of the LEC Act. I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the following reasons: The approved LED Signage is only part of the approved development under the Original Consent; The approved LED Signage will not be altered in its height, bulk or scale; The proposed development relates to the period of operation of the approved LED Signage , proposing an additional 3 years; and The proposed modification will not result in a change to the operation of the approved development other than to reduce the level of luminance of the sign after sunset and to reduce the hours of operation for the final 3 years of the sign ’ s operation. Next, I note the modification application was notified by the Council between 31 October and 28 November 2025 in accordance with s 4.55( 2 )(c) of the EPA Act. In response to the notification of the application, in response to which no submissions were received. Finally, pursuant to s 4.55(3) of the EPA Act, I have considered those issues at s 4.15 of the EPA Act that are of relevance to the proposal, and I note the following: The s ite is located in an area designated by the North Sydney Local Environmental Plan 201 3 (NSLEP) as MU1 – Mixed Us e, and the propose d use is one permi tted in the zone, and is consistent with the objectives of development in the MU1 zone. Section 3.12(1) of State Environmental Planning Policy (Industry and Employment) 2021 (the Industry SEPP ) provides for a 15-year duration for advertising signs, unless Council specif ies a period of less than 15 years pursuant to s 3.12(2) and t he Modification Application provides f or a 13-year period. The Lighting Assessment specifies the means by which the Modification Application addresses the assessment criteria in Sch 5 – s 7 Illumination of the Industry SEPP . Conclusion As the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties ’ decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The Court Notes that North Sydney Council, as the relevant consent authority, has approved under s 38 of the EPA Regulation to the Applicant amending Development Application No 198/2020 /4 to rely upon the Lighting Impact Assessment (Rev C) prepared by ElectroLight dated 8 April 2026. Orders The Court orders that: The appeal is upheld. Development Consent No. DA198/2020 is modified in the terms in Annexure A. Development Consent No. DA198/2020/4 as modified by the Court is contained in Annexure B. T Horton Commissioner of the Court ********** Annexure A (157 KB, pdf) Annexure B (310 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2026