The crane was in place from August 2017 to December 2018 but Justice Preston said “the sign may not have been illuminated for the whole of this period”.
After the complaint, Woollahra Council determined the sign was a “prohibited development” because it was erected in an area zoned for medium density residential purposes, where advertisements and business signs were banned.
The council took action against Bay State for three offences of carrying out a prohibited development, and selected three days in 2018 when this was said to have occurred.
In October last year the NSW Local Court found Bay State had committed the offences and fined it $36,000 plus $8000 in costs. The builder lodged an appeal on the basis the amounts were “individually and cumulatively excessive”.
Justice Preston said the company “noted that there was only one complaint made”, by the neighbour in Darling Point, and said his complaint “was limited to the illumination of the sign at night, as it spoilt his harbour view”.
Bay State had also sought legal advice on the sign and believed it was acting lawfully at the time.
“As events transpired, the legal advice that Bay State had received was incorrect,” Justice Preston said.
Woollahra Council submitted the sign compromised “iconic Sydney Harbour views” enjoyed by the neighbour and “the development resulted in significant harm”.
It said the harm extended for at least 12 months, although the neighbour had said he noticed the sign was illuminated only between about December 2017 and March 2018.
Justice Preston said the unlawful development was “minor” in the scheme of an otherwise lawful construction and the neighbour did not complain about the crane itself, but only the illumination of the sign.
That did constitute a harm, but on the evidence it was “confined to only one person” at a limited time each day and for about three months.
Justice Preston concluded “a just and appropriate sentence is a fine of $36,000”, as previously awarded, although he split the amounts for each offence differently to the Local Court.
“The environmental harm caused by the commission of all of the offences was low, but even lower for the second and third offences than for the first offence,” he said.
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Michaela Whitbourn is a legal affairs reporter at The Sydney Morning Herald.