On 19 December 2025, the Chief Judge of the Land and Environment Court delivered Judgment in Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 150 upholding the demolition of a long-standing and prominent sign on a building in the Oxford Street Conservation Area, adjacent to Taylor Square.
The case is part of a series of cases involving the heritage building, including an earlier Court decision in which a Commissioner of the Court refused to grant consent for the installation of a digital sign to replace a static sign on the building (see Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 1081 and Preston J’s decision dismissing a legal challenge to the Commissioner’s decision – Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney [2025] NSWLEC 149).
The decision by the Chief Judge in this demolition order case is an important reminder of:
- the powers of Council to issue a demolition order for advertising structures in particular circumstances, the meaning of “amenity” of a neighbourhood,
- how successfully establishing existing use rights is fraught with difficulty.
Key points
- Council has power to order the modification, demolition or removal of an advertisement or any associated structure where, amongst other things, the advertisement or structure is “unsightly, objectionable or injurious to the amenity of any … public place at or near where the advertisement is displayed” or where it is displayed contrary to a provision under the EP&A Act.
- The meaning of “amenity” of a neighbourhood is wide and flexible, with some aspects practical and tangible and other aspects intangible and subjective including a resident’s perception of amenity which is informed by the applicable environmental planning controls.
- The long existence of a sign will not, of its own, be sufficient to demonstrate existing use rights and the failure of a Council, over a period of time, to take enforcement action requiring removal of an unauthorised structure is not sufficient to establish existing use rights.
Background
The Council of the City of Sydney issued a Development Control Order under s 9.34 of the EPA Act and item 6 of the table to Part 1 of Schedule 5 to the EPA Act to Save the Robots Pty Ltd to demolish an existing static advertising sign and structure located on the roof of a building at 191-195 Oxford Street Darlinghurst on the basis that, relevantly, the advertisement was displayed contrary to the EP&A Act, with no planning approval for its present configuration (the previous consent expired on 10 February 2001) and the advertisement is sightly, objectionable or injurious to the amenity of Oxford Street.
The sign is, at present, a prominent iPhone ad. Save the Robots argued some form of advertisement has been located on the roof of the building since at least the 1920s and possibly as early as 1916 and the long standing existence of a sign in that location resulted in there being existing use rights.
The previous planning approval for the sign expired on 10 February 2001 and a condition of that consent required removal of the signage and all associated structures. Notwithstanding that condition, the sign remained in place and a development application was lodged to, amongst other things, replace the static sign with a digital sign. That part of the development application involving the replacement of the static sign with a digital sign was refused by the Land and Environment Court and a legal challenge of that decision was dismissed.
Council argued:
- there is no existing planning approval for the sign,
- the sign, in its present configuration, is prohibited under s 3.8(1) of the State Environmental Policy (Industry and Employment) 2001 (Industry SEPP) because it is displayed within the Oxford Street Heritage Conservation Area, and
- the sign is “unsightly, objectionable or injurious to the amenity of Oxford Street”.
Save the Robots argued that:
- There were existing use rights for the sign – because of its existence, in some form, on the building for at least 100 years.
- The longstanding existence of a sign on the building for at least the last 100 years had the effect of shaping the character and amenity of the neighbourhood of Taylor Square. The sign was not, therefore, “unsightly, objectionable or injurious to the amenity of Oxford Street”.
- If, however, the Court decided that one of the Council’s grounds for removal of the sign was made out, then the Court should exercise its discretion to not order removal of the sign given the existence a sign in the same location for at least 100 years.
Impact on amenity of Oxford Street
The Court ultimately found that the sign is “unsightly, objectionable or injurious to the amenity of Oxford Street”, preferring the evidence of the Council’s experts that:
- The building is a contributory heritage item in the Oxford Street Heritage Conservation Area. The sign does not have heritage value and detracts from the character of the building and “visually dominate[s] and compete[s] with the original form of that building” at [43]. The sign also obscures the public view of the contributory heritage building.
- The existing advertising sign and associated structure are incompatible with the planning controls for the area, which do not permit signage within Heritage Conservation Areas.
In considering the Council’s argument, the Court had regard to what is meant by “amenity” of a neighbourhood, summarising the position (as articulated in earlier cases) as follows:
- A quality of “being pleasant or agreeable” (Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152 at 156.)
- In an environmental planning instrument, the term is usually used “in a relative rather than in an absolute sense”, not as requiring conformity to a generally accepted standard but rather the pleasantness or agreeableness of the neighbourhood as it is with the aim of not being less pleasant or agreeable: Cecil at [156].
- The concept is wide and flexible – with some aspects practical and tangible (e.g. traffic generation, noise, nuisance, the appearance and the way of life in the neighbourhood) and some aspects are intangible and subjective (e.g. the reasonable expectations of a neighbourhood and a resident’s perception of a neighbourhood): [15] citing the earlier decision in Harris v Scenic Rim Regional Council (2014) 201 LGERA 12 and Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; [2006] NSWLEC 133 at [190]-[192]).
- Reasonable expectations of residents are informed by the current planning controls in the planning scheme (see Gorman v Brisbane City Council 73 [2004] QPELR 29 at 32 [18]; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 324 at 348-349 [40]; Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15 at [159], [160]), with residents taken to expect land will be used for purposes permitted under the relevant planning instrument (see Bell v Noosa Shire Council [1983] QPLR 311 at 313; Crane v Brisbane City Council [2004] QPELR 1 at 7 [48]).
Because the Industry SEPP prohibits signage in Heritage Conservation Areas, the Court found that prima facie, the carrying out of a prohibited use is injurious to the amenity of land in the area: [18].
The Court also:
- observed that the statement of significance for the Oxford Street Conservation Area under the Sydney Local Environmental Plan does not refer to roof top advertisement on the subject building as being part of the heritage conversation area; and
- had regard to the provisions of cl 5.10(5) of the SLEP in considering the effect that the continued use of the existing advertising sign and associated structure has on the heritage significance of the Oxford Street HCA, finding, having regard to Council’s expert evidence, that it is an adverse impact see [38], [43], [46] and [48].
Existing use rights
The Court found that there are no existing use rights and restated the principles applicable to establishing existing use rights as follows (see [122]-[124]):
- First – what is the current use of a building that is said to be an existing use right.
- Second – whether the building was used for that purpose immediately prior to the use becoming prohibited under a relevant planning instrument.
- Third – whether the use at that time was “lawful”.
To establish an existing use right in this case, Save the Robots had to, relevantly, demonstrate that the sign was in place and lawfully used prior to the commencement of the predecessor to the Industry SEPP (which was SEPP 64) on 16 March 2001 and that that use continued up to 1 March 2022 (when the Industry SEPP came into force).
The factual difficulty was that the earlier development consent had expired on 10 February 2001, as it contained a time limitation.
Earlier development consents which were in place had also expired.
Accordingly, there were no existing use rights.
Court’s discretion
Notwithstanding the long existence of a sign on the roof of the building, which Save the Robots argued should result in the Court exercising its discretion to not order demolition of the sign, the Cout determined that the sign should be demolished because of its adverse impact on the building and the locality but extended the period of time for demolition for 1 year.
Reminders
This case is an important reminder that:
- The Council has power to issue an order under Schedule 5 of the EP&A Act if one of the circumstances for issuance of the order exists.
- “Amenity” is a broad term and, relevantly, includes consideration of whether a use or development is permitted or prohibited under a relevant environmental planning instrument.
- Existing use rights are difficult to establish. If the use was not lawful prior to a prohibition brought about by a planning instrument, you cannot successfully establish existing use rights.
For further information, please contact:
Stephanie Vatala, Partner, Dentons
stephanie.vatala@dentons.com
