Adbooth Pty Ltd and City of Perth
[2007] WASAT 76
•2 APRIL 2007
| JURISDICTION | : STATE ADMINISTRATIVE TRIBUNAL | ||
| STREAM |
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| ACT |
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| CITATION |
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| MEMBER |
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| HEARD |
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| DELIVERED | : 2 APRIL 2007 | ||
| FILE NO/S |
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| BETWEEN | : ADBOOTH PTY LTD |
Applicant
AND
CITY OF PERTH
Respondent
Catchwords:
Town planning - Development application - General commercial advertising attached to public telephone booths and pedestals - 30 sites in Perth, East Perth and Northbridge - Standard telephone services advertising is exempt under Federal law from requirement to obtain development approval under State law - Standard telephone services advertising installed or will be installed at all sites - Amenity impact - Whether development acceptable having regard to the preservation of the amenities of the locality - Whether, having regard to the character of the area, the amenity of the area will be enhanced or, at the very least, not diminished - Correct approach to determination of amenity impact -
[2007] WASAT 76
Whether amenity impact of general commercial advertising is to be determined by comparison with amenity impact of standard telephone services advertising - Whether amenity impact of standard telephone services advertising is the same as amenity impact of general commercial advertising such that amenity impact of the proposed development is neutral - Whether proposed development acceptable in consequence of commercial character of city - Whether there is a difference in character between general commercial advertising and commercial advertising associated with on-site business - Significance of general commercial advertising on bus shelters - Signage policy contemplates that commercial signage will generally be restricted to commercial advertising associated with on-site businesses - Whether signs satisfy development standards and other policy controls in signs policy and precinct plans
Legislation:
City of Perth City Planning Scheme No 2
, cl 36(1), cl 37, cl 37(b), cl 37(c), cl 37
cl 39, cl 43, cl 43(3), cl 43(4), cl 43(4)(h), cl 54, cl 56, Sch 1
City of Perth Planning Scheme No 26 - East Perth Redevelopment (Normalised)
Area
City of Perth Signs Policy, cl 2.4, cl 3, cl 5, cl 9.11
City of Perth King Street Heritage Design Guidelines
Land Administration Act 1997 (WA), s 55(1), s 55(2)
Planning and Development Act 2005 (WA), s 162(1), s 238(3)(a)(i), s 238(4)
s 252(1)
State Administrative Tribunal Act 2004 (WA), s 46(1)
Telecommunications (Low-impact Facilities) Determination 1997 (Cth), s 3.1
Result:
Leave granted to withdraw proceedings in relation to 11 out of 41 sites
Application for review dismissed
Development approval refused
Category: B
Representation:
Counsel:
| Applicant | : | Mr AR Beech SC with Ms BA Moharich |
[2007] WASAT 76
| Respondent | : | Mr A Roberts |
Solicitors:
| Applicant | : | Lavan Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2006] WASAT 343
Busen Pty Ltd and City of Subiaco [2007] WASAT 49
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission
(2002) 122 LGERA 433
Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363
Fryer and City of Subiaco [2006] WASAT 199
Minister for Natural Resources v New South Wales Aboriginal Land Council
(1987) 9 NSWLR 154; 62 LGRA 409
Nicholls and Western Australian Planning Commission [2005] WASAT 40; 149
LGERA 117
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Zhang v Canterbury City Council (2001) 115 LGERA 373
[2007] WASAT 76
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 Adbooth Pty Ltd applied for development approval for the placement
and replacement from time to time of general commercial advertisements on public telephone booths and pedestals on road reserves at various sites in Perth, East Perth and Northbridge. Adbooth was in the process of installing signage panels at the sites in order to display standard telephone services advertising which is exempt under Federal law from the requirement to obtain development approval under State law.
Adbooth presented three global arguments as to why development approval should be granted.
First, Adbooth argued that:
• the amenity impact of each general commercial advertisement was to be determined by comparison with a standard telephone services advertisement at the site; • the amenity impact of the two advertisements is the same; and • therefore, the application should be approved.
The Tribunal rejected this argument, because:
• although the existence of a standard telephone services advertisement constitutes an element that contributes to the character of the area, it does not define the character; • there are significant differences between standard telephone services advertising and general commercial advertising; and • in any case, various policy provisions warranted the refusal of the application in relation to most signs.
5 Second, Adbooth argued that general commercial advertising is
reasonably expected in a capital City and that there is no relevant distinction in terms of character and therefore amenity between advertising associated with a business carried on at the site and general commercial advertising.
[2007] WASAT 76
6 However, the Tribunal found that general commercial advertising is
not characteristic of the City in general or of the localities in question in particular, with the exception of two confined areas – of which one was relevant – where the approval of general commercial advertising in bus shelters had changed the character, at least at pedestrian level. The Tribunal also determined that the applicable planning instruments and policies did not contemplate that general commercial advertising, as opposed to commercial advertising associated with an on-site business, was or should be characteristic of the City or of any part of it. Finally, in relation to the second argument, the Tribunal found that there is an appreciable difference in character between general commercial advertising and commercial advertising associated with an on-site business.
7 Third, Adbooth argued that commercial advertising in bus shelters is
of fundamental importance in the identification of the existing amenity of
the City south of the railway line.8 The Tribunal determined that the bus shelter advertising is relevant
to the character and therefore amenity of parts of St Georges Terrace and Adelaide Terrace, Barrack Street and Wellington Street. However, its significance does not extend to the whole of the City south of the railway line.
9 The Tribunal assessed the application in relation to each site and
determined that it should be refused consent. Other than in relation to one site, the application would involve a form of development that is uncharacteristic in each locality. Although commercial advertising related to on-site businesses, including goods and services available at on-site businesses, is characteristic of a number of the localities in question, general commercial advertising is of an entirely different character.
10 The Tribunal also found that most of the proposed advertisements
were contrary to statements of intent in relation to particular precincts, specific policy provisions or, in one case, a draft policy provision that, in the circumstances, was to be given substantial weight.
The Tribunal dismissed Adbooth's application for review and refused development approval for general commercial advertising.
Introduction
12 These proceedings involve an application brought by Adbooth
Pty Ltd (Adbooth), pursuant to s 252(1) of the Planning and Development
[2007] WASAT 76
Act 2005 (WA) (PD Act), for review of the deemed refusal of a development application by the City of Perth (City or Council). The development application seeks approval for the placement and replacement from time to time of general commercial advertisements (also known as third party advertisements) on public telephone booths and pedestals which are situated on road reserves in Perth, East Perth and Northbridge.
13 The development application originally proposed placement and
replacement of general commercial advertisements on 55 telephone booths and pedestals located at 41 sites. However, shortly before and during the hearing, Adbooth sought leave, which was not opposed, to withdraw the proceedings in relation to 14 telephone booths and pedestals at 11 sites. The development application for determination by the Tribunal is, therefore, in relation to 41 signs at 30 sites. The site numbers used in these reasons refer to the site numbers originally nominated in the development application even though the development application is no longer pursued in relation to 11 of the 41 sites.
14 On 16 February 2007, the President formed the opinion under
s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues and listed the proceedings for determination by a panel rather than by an ordinary member sitting alone: see PD Act s 238(3)(a)(i).
Exemption of standard telephone services advertising from approval under
State planning law
15 The public telephone booths and pedestals on which the general
commercial advertisements are proposed to be displayed are owned by Telstra Limited (Telstra). Telstra is a telecommunications carrier for the purposes of the Telecommunications Act 1997 (Cth) (Telecommunications Act). Under cl 6(1)(b) of Sch 3 of the Telecommunications Act, a carrier may, for the purposes connected with the supply of a carriage service, carry out the installation of a facility if the facility is a low-impact facility as defined by cl 6(3). Clause 6(3) authorises the Minister for Telecommunications, by written instrument, to determine that a specified facility is a low-impact facility for the purposes of the clause. By s 3.1 of the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) (Determination), the Minister determined that a public payphone, cabinet or booth installed or to be installed in a residential, commercial, industrial or rural area, is a low-impact facility for the purposes of cl 6 of Sch 3 of the Telecommunications Act, if the facility is:
[2007] WASAT 76
"(a) used solely for carriage and content services; and (b) not designed for other uses (for example, as a vending machine); and (c) not fitted with devices or facilities for other uses; and (d) not used to display commercial advertising other than advertising related to the supply of standard telephone services."
Clause 7 of Sch 3 of the Telecommunications Act authorises a carrier to maintain a low-impact facility. Maintenance includes:
• the provisioning of the original facility with material or with information (whether in electronic form or otherwise); • ensuring the proper functioning of the original facility; and • the replacement of the whole or a part of the original facility: Telecommunications Act Sch 3 cl 7(3).
17 Clause 37 of Sch 3 of the Telecommunications Act provides that a
carrier may, among other things, install and maintain a low-impact facility
despite a law of a State about town planning or the use of land.18 It is common ground in these proceedings that the provisions of the
Telecommunications Act and the Determination referred to above authorised Telstra to place, and from time to time replace, commercial advertisements related to the supply of standard telephone services at each of the sites which are the subject of this review without the need to obtain development approval under s 162(1) of the PD Act and the City of Perth City Planning Scheme No 2 (CPS 2 or Scheme). It is also common ground that standard telephone services include telephone services provided by a carrier which are not available at the site, such as mobile telephone services, and telephone services provided by a carrier other than Telstra, such as Vodafone or Optus.
Installation of signage panels and placement of standard telephone services advertisements at the sites
19 Telstra has entered into an agreement with Adbooth to maintain its
public payphone facilities around Australia. The agreement requires
[2007] WASAT 76
Adbooth to provide public payphones and to be responsible for their cleaning and maintenance. The agreement authorises Adbooth to install signage panels on the telephone booths and pedestals and to place advertisements in the panels. Revenue from the placement of advertising signs at the facilities goes towards their cleaning and maintenance.
20 Mr Robert Whitbourne, the Managing Director of Adbooth, gave
evidence, which was not questioned or contradicted, that, regardless of whether the development application for general commercial advertising is approved, signage panels are in the process of being installed on each of the 41 booths and pedestals at the 30 sites which are the subject of these proceedings. Where development approval for general commercial advertising has not been given, the signage panels display standard telephone services advertising. Mr Whitbourne explained that Telstra pays Adbooth the same amount for the placement of its standard telephone services advertising at the sites as would any commercial advertiser.
21 As at the date of the hearing, 12 signage panels had already been
installed at eight of the sites which are the subject of these proceedings. Mr Whitbourne indicated that signage panels displaying standard telephone services advertising will be installed at the remaining sites during a period of approximately one month following the hearing.
22 Attachment A to these reasons contains photographs of signage
panels displaying Telstra standard telephone services advertising Sites 1 (195 Adelaide Terrace, Perth), 4 (16 Bennett Street, Perth), 16 (18 Irwin Street, Perth), 20 (88 Murray Street, Perth) and 33 (178 St Georges Terrace, Perth). As these photographs show, the current Telstra standard telephone services advertising campaign advertises services available at the public telephone booth or pedestal on which the advertisement is displayed and contains the Telstra logo and a photograph of the front of a Telstra public telephone pedestal.
Development application and review proceedings
23 On 29 June 2006, Adbooth lodged the development application with
the City for approval for the placement and replacement from time to time of general commercial advertisements on each of the originally nominated 54 public telephone booths and pedestals at 41 sites. Attachment B to these reasons is a map showing the locations of the 41 sites.
24 Although the booths and pedestals to which the signage panels are or
will be affixed vary in size, depending on their particular style,
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the signage panels are uniform. Each signage panel has a height of 1.47 metres, a width of 0.7 metre and an area of 1.03 square metres. Each signage panel has a perspex cover and is internally illuminated. An advertising sign is placed inside the signage panel for display.
25 Clause 39 of CPS 2 requires that a development application must be
signed by the owner of the land, or an agent authorised in writing for that purpose by the owner of the land, to which the application relates. In this case, the development application form was unsigned. The City contended that the application form had to be signed by the Crown, in which absolute property in land comprising a road is revested by s 55(1) of the Land Administration Act 1997 (WA) (LA Act), before it could be assessed in a substantive manner.
26 As the Council did not determine the development application within
60 days of its lodgement, the application was deemed to have been
refused in accordance with cl 54 of CPS 2.
On 31 August 2006, Adbooth filed the application for review with
the Tribunal. 28 After the commencement of the proceedings, Mr Dewald Gerricke,
the City's Coordinator of Statutory Town Planning, presented a very brief assessment report to the Council in relation to the development application. In his report, Mr Gerricke recommended that the proposed general advertising should be supported, "as it would not compromise the character of the City centre and would add to the visual quality and amenity". However, Mr Gerricke did not provide any detailed analysis of the characteristics or context of each site or of the applicable planning provisions.
The Council resolved not to support the proposed development for the following reasons:
"1. The proposed signage would add to the visual clutter of
the locality;2.
The proposed signage would add to the proliferation of phone booths and advertising;
3.
The proposed signage would create maintenance concerns."
[2007] WASAT 76
30 The parties identified several preliminary issues for determination in
the proceedings in relation to authority to give owner's consent to the lodgement of the development application. In relation to these preliminary issues, the Tribunal determined that:
•
Telstra is not the owner of the land to which the development application relates and is not therefore authorised to give owner's consent;
•
the City is not the owner of road reserves within its district;
•
however, by having the care, control and management of road reserves within its district under s 55(2) of the LA Act, the City is an agent authorised in writing for the purpose of signing the development application by the owner of the road reserves, namely, the Crown; and
•
exercising the functions and discretions of the City in the review, it is appropriate for the Tribunal to give owner's consent on behalf of the City as the Crown's agent in order to enable the substantive assessment of the development application to take place: see Adbooth Pty Ltd and City of Perth [2006] WASAT 343.
Planning framework
31 The principal purpose of State Planning Policy No 4.2 –
Metropolitan Centres Policy Statement for the Perth Metropolitan Region (SPP 4.2) "is to provide a broad regional planning framework to coordinate the location and development of retail and commercial activities in the metropolitan region": cl 2.4. The objectives of the Policy include to:
"establish a hierarchy of well-located centres in the
metropolitan region that will:
• promote the Perth Central Area as the dominant centre and the primary focus for retail, commercial, cultural, entertainment and tourist facilities; … ": cl 3.
Clause 4.2.1 of SPP 4.2 states that:
"The Perth Central Area will be promoted and maintained as the dominant centre and primary focus for retail, commercial,
[2007] WASAT 76
cultural, housing, entertainment and tourist activities. Developments outside the Perth Central Area which adversely affect or undermine the Central Area as the focus of primary activities will not be supported."
33 SPP 4.2 identifies the location of the Perth Central Area generally by
placement of a star on a map of the Perth Metropolitan Region over the area which appears to include St Georges Terrace, and Hay Street and Murray Street to the north of St Georges Terrace. However, for the purposes of these proceedings, the Tribunal assumes that the Perth Central Area includes each of the sites which are the subject of these proceedings.
34 Clause 2.4 of SPP 4.2 states that local planning strategies prepared
by local governments will provide more detailed guidance for planning
and development control at the local level.35 Each of the sites which are the subject of these proceedings are
located within the Scheme area of CPS 2. Clause 36(1) of CPS 2 states that "[a] person shall not begin or continue to [sic] development of any land or building in the Scheme area, unless it is a development exempted by clause 37, without first having applied for and obtained approval". In the Scheme, unless the contrary intention appears, "development" has the same meaning given to it in the PD Act except that it also includes any advertisement. The proposed placement and replacement of general commercial advertisements at the sites is not exempt from the requirement to obtain development approval under cl 37 of the Scheme.
36 Clause 43(3) of the Scheme states that the Council may approve or
refuse an application. Clause 43(4) states that, without limiting the scope of the Council's discretion to determine an application under subclause (3), the Council is to have regard to considerations including the following:
"(a)
the provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Region Scheme;
(b) any relevant planning policy; (c) any relevant precinct plan; … (g) the orderly and proper planning of the locality; (h) the conservation of the amenities of the locality; … [and]
[2007] WASAT 76
(j) the cultural heritage significance of any land or building affected by the proposed development …"
The term "amenities" is defined in the Scheme, depending upon its context, as relevantly meaning:
"The expectations of those living and working in an area about the quality of their environment including its pleasantness, character, beauty, harmony in the exterior design of buildings, privacy and security."
38 The Scheme area is divided into 15 precincts. The Council has
adopted a precinct plan for each precinct. Each precinct plan outlines the Council's town planning intentions and desired environmental character for that precinct. Each precinct plan also provides information about the purposes for which land may be used and guidelines for development. Relevant provisions of the precinct plans for the various sites which are the subject of these proceedings are identified and addressed in relation to those sites below.
39 Schedule 1 of the Scheme contains general descriptions of seven
Scheme use areas. The City Centre use area, which includes each of the sites which are the subject of these proceedings, other than Sites 1, 2, 4, 5, 10, 11, 15, 29, 30, 36, 37 and 38, contains the following general description:
"The City Centre is the State's primary location for business and administration as well as commercial, civic, cultural, entertainment and retail activity. It is also a major focus for tourism, both as a sightseeing destination and for the tourist accommodation it provides, and is gaining popularity as a residential location for those seeking an urban lifestyle. Diversity and vitality are fundamental to the overall landuse profile of the City Centre and should be facilitated by providing a wide range of facilities and services which enable the City to fulfil its many functions while sustaining interest and activity on a virtually continuous basis. The scale and intensity of activities in the City Centre also help to distinguish it from surrounding areas and are therefore important to its landuse character."
The general description of the Residential use area, which applies to Sites 15 and 36, includes the following:
[2007] WASAT 76
"The emphasis in these areas is very much on permanent residential accommodation of various types, development in accordance with the relevant Residential Design Code, with associated home-based businesses also favoured. Preferred use groups are therefore Residential and Home Occupation. A limited range of complementary uses may also be considered appropriate in certain instances, provided that the amenity of surrounding residential fabric is adequately preserved …"
The general description of the Office/Residential use area, which applies to Sites 1, 2, 4 and 10, includes the following:
"It is intended that [these areas] develop as mixed use areas comprised primarily of permanent residential accommodation and office/business activities, together with a limited range of complementary uses – residential and non-residential uses may be developed either in combination or independently, in a compatible manner. Preferred use groups are Residential, Office, Home Occupation, Dining, Business Services, and Healthcare I. Certain other uses which serve the needs of surrounding residents and workers and/or are compatible with the desired character of the area may also be considered appropriate."
The general description of the Town Centre use area, which applies to Sites 5 and 11, includes the following:
"While the Town centres should have the potential to accommodate a range of commercial and residential uses, it is intended that they be identified principally as shopping/service nodes serving the needs of residents and workers in surrounding areas and generally functioning at a smaller, more localised scale than the retail precincts of the central City. The centres, both of which are focused on portions of Hay Street, should have a distinct 'main street' focus with continuous shop fronts enhancing the pedestrian environment along the primary street frontage. Preferred uses abutting Hay Street are therefore those in the Retail (Local General), Dining and Business Services categories. Although some other uses may be favourably regarded on this frontage if compatible with the design character of the centre, contemplated use group categories include Community and Cultural, Entertainment, Mixed Commercial, Industry (Service and Cottage). These and many
[2007] WASAT 76
more may be considered appropriate at other locations within the centre ie rear ground floor tenancies, upper or lower levels and on street frontages other than Hay Street."
43 None of the use areas apply to Sites 9, 37 or 38, which are the
subject of reservations under the Metropolitan Region Scheme (MRS),
or Site 30, which is located in East Perth.44 The CPS 2 Policy Manual is a file of planning provisions adopted by
the Council to be used as a basis for assessing development applications. Of relevance to the development application are Policy 4.7 Signs (Signs Policy) and Policy 6.9 King Street Heritage Design Guidelines (King Street Guidelines). These Policies are part of the City's Development and Design Policy.
The Signs Policy was first adopted by the Council on 26 June 2001 for the purpose of establishing the City's requirements for the erection and management of signs on or adjacent to buildings within the City. The Signs Policy defines different types of signs and provides guidelines for their acceptable design and location. The Signs Policy was amended and adopted as a planning policy under cl 56 of CPS 2 on 13 December 2005.
The Introduction of the Signs Policy contains the following:
"Signage is an important element of the built environment. The City recognises the legitimate need for signs to give direction and to identify and promote businesses and buildings. It also accepts a responsibility to the wider community to ensure the visual impact of signage is properly assessed and managed. Signage should not negatively impact on the amenity of the City environment and should not be hazardous to pedestrians or motorists.": cl 1.
Clause 6 of the Signs Policy sets out the General Policy which includes the following:
"Signs erected on or adjacent to a building are to be for the purpose of the identification/naming of the building, or the major activities carried on within it only. Signs for general advertising purposes will be considered only where it can be demonstrated that provision of such signs will enhance and not adversely affect the visual quality, amenity and safety of the City."
[2007] WASAT 76
Clause 7.3, which is headed "Inscriptions on Signs" and applies to all types of signs, states as follows:
"Except in the case of an approved community information sign, signs generally shall only display one or more of the following:-
(a) the name of one or more of the occupiers of the premises; (b) details of the business carried on in the premises; (c) details of the goods sold in the premises to which it is affixed and nothing more; (d) any other matter specifically approved by the Council."
49 Clause 9.11 sets out design criteria for "third party advertising or
general advertising" signs. "Third party advertising or general
advertising" is defined for the purposes of the Signs Policy as a sign:
"• displaying the name, logo, or symbol of a company or other organisation that does not own or substantially occupy the site or building on which the advertisement is located; or • for a product or service not provided on the site on which the advertisement is located; or • for a product or a service that does not form part of the signage displaying the name, logo or symbol of a company or other organisation that owns or substantially occupy [sic] the site or building on which the advertisement is located; or • for an activity or event not occurring on the site on which the advertisement is located.": cl 5
Clause 9.11 states as follows:
"Third party or general advertising will only be permitted where, having regard to the character of the area in which the sign is to be situated, the Council is satisfied that the visual quality, amenity and safety of the area will be enhanced, or at the very least, not diminished."
[2007] WASAT 76
51 It is apparent from the provisions of the Signs Policy set out above
that it contemplates that commercial signage in the City will generally be restricted to commercial advertising associated with a business operating at the site of the signage rather than general commercial advertising of the nature proposed in the development application which is the subject of these proceedings.
52 It is also apparent that there is a conflict in the text between the
General Policy, which states that general commercial advertising will only be considered where "it can be demonstrated that provision of such signs will enhance and not adversely affect the visual quality, amenity and safety of the City", and the guideline for third party advertising or general advertising signs, which states that these signs will only be permitted where "the Council is satisfied that the visual quality, amenity and safety of the area will be enhanced, or at the very least, not diminished" (emphasis in bold added). The General Policy requires enhancement of the visual quality, amenity and safety of the City, whereas the guideline would accept, at the very least, that the visual quality, amenity and safety of the area will not be diminished.
53 The parties did not refer the Tribunal to the General Policy or
address the conflict. The City contends, in relation to each of the proposed general commercial advertisements, that it does not satisfy the guideline in cl 9.11 of the Signs Policy. As, for reasons set out below, the Tribunal accepts the City's contention in relation to 29 of the 30 sites and considers that the proposed development is unacceptable in relation to the remaining site for other reasons, it is unnecessary to explore whether the proposed development satisfies the General Policy set out in cl 6 or the implications of the conflict between cl 6 and cl 9.11. However, as a matter of strategic planning, the Council should address and resolve the conflict.
54 In relation to the guideline in cl 9.11, Mr David Caddy, a consultant
town planner who gave evidence on behalf of Adbooth, indicated that he could not say whether the amenity of the area will be enhanced by the proposed signage, because he has not seen the graphics (and, in any case, the graphics would change from time to time). Rather, Mr Caddy gave the following evidence in relation to the proposed signage at each site:
"It is my opinion that the amenity of the locality will not be diminished by the proposed development in that the expectations of those living and working in the locality about the quality of their environment will not be impacted upon by
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the installation of third party advertising as against 'as of right'
signage."
55 By the words "as of right signage", Mr Caddy refers to standard
telephone services advertising. Mr Caddy's evidence is that each of the proposed signs "has a neutral impact on the amenity of the locality in which the sign is located as all existing signs already display Telstra advertising which is lawfully exempt from obtaining approval". This evidence supports Adbooth's first global argument as to why the development application should be approved, which is addressed below.
56 Clause 10 of the Signs Policy states that there are several important
streets and areas within the City that have distinctive streetscape or heritage values and within which the design of signs and the type of signage permissible are particularly important. These Special Areas include:
• Northbridge (cl 10.1); • Hay Street/Murray Street (Core Retail Area) (cl 10.2); • St George's Terrace (cl 10.3); • Adelaide Terrace (cl 10.4); and • King Street Heritage Precinct (cl 10.5).
Relevant provisions of the Signs Policy in relation to these Special Areas are identified and addressed in relation to the specific sites below.
58 Finally, cl 11 of the Signs Policy concerns signs on heritage
buildings and places. This clause contains the following introductory
provision:"The design and placement of signs on or near heritage buildings and places requires careful consideration to be compatible with and not detract from the heritage significance of the building or place. In some cases new signs of a very traditional character are most appropriate, whereas in others signs should be clearly contemporary in design. Opportunities for placement of signs and acceptable media may be more limited than in other situations."
The Policy provisions in relation to signs on heritage buildings and places include the following:
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"•
Generally, signs on individual buildings or within areas of special significance should be discrete, and should complement the building or area. The architectural characteristics of a building should always dominate. For example, signs should not be placed on cast iron, first floor verandas, balustrades or in front of cast iron frieze work. …
•
Modern standardised 'trademark' advertising will not usually be appropriate. This is unless the presentation is modified by placing the modern sign in a panel with a perimeter margin and surrounding wall surface printed in sympathetic heritage colours. …
•
Signs should be illuminated externally. Small neon signs hanging inside the windows of shops may be appropriate because they are more in the nature of a window display than of a dominant townscape element. There are exceptions to the use of internally illuminated, neon and flashing signs where they are an accepted component of the social history of an area, such as Northbridge."
Adbooth's case
Adbooth advances essentially three global arguments as to why the development application should be granted approval.
61 The first argument focuses on a comparison between the amenity
impact of the proposed general commercial advertisements and the amenity impact of standard telephone services advertisements which have been or will shortly be installed at each of the sites.
62 The second argument focuses on what is said to be a reasonable
expectation of general commercial advertising in a modern capital City and on the absence of any relevant distinction between the amenity impact of the proposed general commercial advertisements and the amenity impact of commercial advertisements associated with on-site businesses which are characteristic of a number of localities within the City.
63 The third argument focuses on the amenity impact of general
commercial advertisements on Adshel bus shelters in the City and its significance in relation to the assessment of the proposed development south of the railway line.
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64 Alternatively to its global arguments, Adbooth contends that each of
the proposed general commercial advertising signs is acceptable when
assessed in its specific factual and planning context.65 The Tribunal will address each of Adbooth's global arguments,
before turning to a consideration of the development application on a sign
by sign basis under precinct headings.
Adbooth's first global argument – no amenity difference between general commercial advertising and standard telephone services advertising
This argument incorporates the following three contentions:
(1)
The amenity impact of the proposed general commercial advertisement at each site is to be determined by comparison with the amenity impact of a standard telephone services advertisement at the site;
(2)
The amenity impact of a standard telephone services advertisement and the amenity impact of a general commercial advertisement is the same such that the amenity impact of replacing the standard telephone services advertisement with the general commercial advertisement is neutral; and
(3) The development application should, therefore, be approved.
However, each of these contentions contains a flaw.
68 In relation to the first contention, the Tribunal accepts the submission
made by Mr AR Beech SC, who appeared with Ms BA Moharich on behalf of Adbooth, that the development application should be assessed on the assumption that signage panels displaying standard telephone services advertising have already been installed at each site. The application should be assessed on this assumption because of Mr Whitbourne's unequivocal evidence that, regardless of whether the development application is approved, signage panels displaying standard telephone services advertisements will be installed at all remaining sites shortly, and the fact that these advertisements can be installed under Federal law without the need to obtain development approval under State law. As Mr Beech contends, it is really "only an accident of timing" that, as at the hearing date, signage panels displaying standard telephone services advertising signs had not yet been installed at 22 of the 30 sites.
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69 The Tribunal also accepts Mr Beech's submission that the standard
telephone services advertisement which exists (or is assumed, for the purposes of these reasons, to exist) on each public telephone booth or pedestal at each site is relevant in having regard to the conservation of the amenities of the locality (CPS 2 cl 43(4)(h)) and whether, having regard to the character of the area in which each proposed sign is to be situated, the Tribunal is satisfied that the amenity of the area will be, at the very least, not diminished (Signs Policy cl 9.11).
70 However, the correct approach to these amenity assessments does not
involve a simple comparison of the amenity impact of the proposed development with the amenity impact of the existing (or assumed to be existing) development. As the Town Planning Appeal Tribunal recognised in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304, in determining amenity impact of a proposed development, "[t]he Tribunal must first determine, as a matter of fact, the objective character of an area that represents the present state of amenity": Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [21]. Although the existence (or assumed existence) of a standard telephone services advertisement constitutes an element that contributes to the objective determination of the character of the area, it does not define the character of the area.
71 In relation to the second contention, the Tribunal considers that the
amenity impact of a standard telephone services advertisement attached to a public telephone booth or pedestal is not the same as the amenity impact of a general commercial advertisement attached to a public telephone booth or pedestal.
72 It is correct, as Mr Beech submits, that standard telephone services
advertising can include a form of general commercial advertising, namely, the advertising of telephone services which are not available at the site of the advertisement or which are provided by a telecommunications carrier other than Telstra. However, there are four significant differences between standard telephone services advertising and general commercial advertising.
73 First, standard telephone services advertising is significantly
restricted in its subject matter in comparison to general commercial advertising. Although standard telephone services advertising can include a form of general commercial advertising, it must still relate to standard telephone services, rather than to any other goods or services.
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74 Second, standard telephone services advertising is significantly
restricted in the identity of the advertiser. Although the advertiser may be a carrier other than Telstra, it is restricted to carriers advertising standard telephone services, rather than any other type of commercial enterprise advertising any type of goods or services.
75 Third, although standard telephone services advertising does not
have to relate to services available at the particular public telephone booth or pedestal at which the advertising is displayed, there is plainly a common theme between the advertising and the facility, namely, the provision of telephony services. This is not the case with general commercial advertising.
76 Mr Caddy expressed the opinion that there is no difference in terms
of character and therefore amenity between standard telephone services advertising and general commercial advertising. Ms Margaret Smith, a town planner who is the City's Manager Approval Services and who gave planning evidence on its behalf, did not consider whether there is a difference in character between standard telephone services advertising and general commercial advertising in her witness statement. When asked by the Tribunal whether she agreed with Mr Caddy's opinion, Ms Smith at first said that both types of signage would have a similar impact in terms of character. However, having been asked further questions by the Tribunal, Ms Smith, while acknowledging that the City has not consulted the community in relation to the proposed development, gave the following evidence:
"All I can suggest is that signage related to the infrastructure
may be accepted more readily than unrelated signage. …[T]here is likely to be expectations that a phone booth, as has occurred in the past, has often displayed Telstra logos, Telstra wording and the community would already have an expectation that booths and public telephones would have some degree of advertising of those products and services. To then place other types of advertising that hasn't previously occurred on those structures would attract additional attention and queries."
77 Although standard telephone services advertising can relate to other
services and be placed by other carriers, it is of its nature, in Ms Smith's words, "related to the infrastructure", because it involves a common theme with the services available at the site, namely, telephony services. In
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significant contrast, general commercial advertising is completely
unrelated to the infrastructure.78 Although the Tribunal acknowledges that Mr A Roberts, counsel for
the City, did not challenge Mr Caddy's opinion that there is no difference in terms of character and therefore amenity between standard telephone services advertising and general commercial advertising and that Ms Smith initially agreed with that opinion, Ms Smith's subsequent evidence and the significant differences between standard telephone services advertising and general commercial advertising discussed above indicate that Mr Caddy's opinion and Ms Smith's initial opinion are not soundly based.
79 Fourth, to some extent at least, standard telephone services
advertising serves to direct attention to the facility as a place where telephone services are available. In response to questions from the Tribunal, both planning experts agreed that, from a town planning perspective, it is appropriate that a public telephone booth should be identifiable as such. The photographs in Attachment A show that standard telephone services advertising assists in making a telephone booth or pedestal identifiable as such. Although, unlike the current Telstra advertising campaign, standard telephone services advertising may concern services provided by other carriers and/or services not available at the facility to which the advertising is attached, the common theme of telephony services would serve to assist in identifying the site of the signage as a public telephone facility. Attachment C to these reasons contains photographs of general commercial advertising which has been placed by Adbooth on Telstra public telephone booths and pedestals in other States. The placement of similar advertising within the signage panels shown on Attachment A would preclude the facility from being able to be readily identified as a place where public telephone services are available, at least from the viewing position of the photographer.
80 In consequence of the four significant differences between standard
telephone services advertising and general commercial advertising, there
is a difference in character between them.81 In relation to the third contention, even if the amenity impact of
the proposed general commercial advertisement at each site is properly determined by comparison with the amenity impact of a standard telephone services advertisement and the amenity impact of the two types of advertisement is the same, it would involve a legal error to simply approve the development application as a consequence.
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82 Under cl 43 of CPS 2, the Tribunal is required to have regard to a
number of considerations if relevant to an application. Of particular significance in this case in relation to most sites are provisions of applicable precinct plans and provisions of the Signs Policy other than cl 9.11. In addition, a provision of a draft policy which is a seriously-entertained planning proposal is material, as an element of orderly and proper planning, in relation to the proposed signage at Site 30 (81 Royal Street, East Perth).
83 For reasons discussed below, quite apart from the amenity impact of
the proposed development, various policy provisions relevantly warrant refusal of the development application in relation to most of the proposed signs. The only signs in respect of which there are no applicable or relevant policy provisions that warrant refusal are at Sites 15 (84 Hill Street, Perth), 16 (18 Irwin Street, Perth), 29 (2 Plain Street, Perth) and 36 (110 Terrace Road, Perth).
Adbooth's second global argument – general commercial advertising is reasonably expected in the City and is consistent with characteristic commercial advertising
Mr Caddy gave the following evidence:
"If we look at Statement of Planning Policy 4.2 of the West Australian Planning Commission, the City of Perth and this particular area is the prime [in] the hierarchy of commercial areas. Of course it is the primary area within the State and when we talk about advertising, advertising of course is one of the things that makes the character of that primary area."
85 Specifically in relation to the core retail areas of the City, Mr Caddy
emphasised that, because general commercial advertising has "colour and vibrancy", it is the type of advertising that one would expect to see in those parts of the City. Although he acknowledged that the City can properly control general commercial advertising through the Scheme, precinct plans and the Signs Policy, the City is the "primary commercial area of the State" and the Scheme allows the City to receive and consider applications for general commercial advertising. Mr Caddy considers that "given that [general commercial advertising] is very much part of the Signs Policy, it would appear to me that the City, in having developed that Policy, is inviting people to prepare and lodge applications for third party advertising".
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86 Mr Caddy also provided the Tribunal with photographs of extensive
general commercial advertising which is apparent in Piccadilly Circus, London and Times Square, New York. He said that they are "examples of third party advertising as you would expect to find it in a City centre".
87 Based on Mr Caddy's evidence, Mr Beech submits that Perth is a
capital City where commercial advertising abounds and where general commercial advertising is reasonably expected by those living and working in the area in terms of its character.
88 Mr Beech also submits that there is "no sharp distinction" in terms of
amenity between general commercial advertising and commercial advertising associated with a business operating at the relevant site. He submits that "an ordinary person … who resides or works in the City does not make [a] distinction" between the two types of advertising. In particular, Mr Beech submits that there is no relevant distinction between the general commercial advertising proposed in the development application and, for example, the advertising of Lipton iced tea on a barrier or umbrella at a cafe or a pedestrian mall or footpath which serves Lipton iced tea.
89 Mr Beech also relies heavily on Ms Smith's failure in her witness
statement to take account of a column at each end of the Murray Street Mall which, although clearly designed for community and tourist information, is currently used for general commercial advertising. Mr Beech submits that the fact that the City's planner did not notice these advertisements, which are larger that the proposed advertisements, indicates that "a person in the mall will [not] respond differently to third party advertising against other advertising".
90 There is plainly significant commercial advertising in many areas of
the City of Perth. However, with the notable exception of general commercial advertising on bus shelters, which is discussed in the following section of these reasons, there is a remarkable absence of general commercial advertising in the City in general and in the locality of each of the proposed advertising signs in particular. The vast bulk of commercial advertising in the City identifies and promotes on site businesses and the goods and services they provide, rather than goods or services which are unrelated to the premises on which the advertisement is placed. Given that the Perth Central Area is identified in SPP 4.2 as the dominant centre and the primary focus for retail, commercial, cultural, entertainment and tourist facilities in the Perth Metropolitan Region, it is
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reasonable to expect, and it is the case, that commercial advertising that is
ancillary to these purposes is characteristic of many areas of the City.91 However, general commercial advertising is not characteristic of the
City in general or of the localities in question in these proceedings in particular with one exception. Indeed, general commercial advertising is, in most parts of the City, exceptional.
92 Furthermore, the applicable planning instruments and policies do not
contemplate that general commercial advertising is characteristic or should be characteristic of the City or of any particular part of it. As the current built environment of the City shows, the City functions as the dominant centre and the primary focus for retail, commercial, cultural, entertainment and tourist facilities without being characterised by general commercial advertising.
93 While there is considerable commercial advertising, neither the
existing character of the City in general or of the localities in question in these proceedings in particular (with one exception) nor the planning framework suggest that one would expect to find general commercial advertising, rather than commercial advertising that identifies and promotes on site businesses and buildings.
94 The Signs Policy clearly contemplates that there is a difference in
character between commercial advertising to identify and promote on site businesses and buildings, on the one hand, and general commercial advertising, on the other. As noted earlier, the provisions of the Signs Policy contemplate that commercial signage in the City will generally be restricted to the former rather than the latter. Contrary to Mr Caddy's evidence, the Signs Policy does not invite people to prepare and lodge applications for commercial advertising, but rather appears to contain disincentives to do so. As Ms Smith explained:
"It's actually something we do try and discourage, but we acknowledge that in some locations and in some areas, it may be appropriate, and hence we start with – perhaps a negative statement under 9.11 is, 'third party or general signage will only be permitted where' – etc, etc. It doesn't say you can have it everywhere except in a couple of locations. It's actually putting it forward in a more constrained way that, yes, you can apply for it, but it will only be permitted where we consider it's going to have no diminution or adverse impact on the amenity of the locality. So I contend that we're not actually inviting people to
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put in third party advertising. It's allowing it to be considered,
but it's not an encouragement."
95 Furthermore, there is nothing in either the existing character of the
City or the applicable planning instruments or policies that suggests that because general commercial advertising has colour and vibrancy, it is the type of advertising that one would expect to find in the core retail areas or in any other part of the City. Certainly, the quotation from the general description of the City Centre use area set out at [39] above talks of vitality, interest and activity. But neither that provision nor any other relevant planning provision suggests that general commercial advertising is reasonably expected because it involves colour and vibrancy. Vitality, interest and activity can be achieved without involving an uncharacteristic form of development such as general commercial advertising.
96 The Tribunal derives no assistance from the photographs of
Piccadilly Circus or Times Square. The Tribunal is unaware of the history or planning framework pertaining to that signage. The signage in those locations would certainly not be reasonably contemplated by the applicable planning instruments and policies in this case.
97 Finally, the Tribunal does not accept Mr Beech's submission that
there is no relevant distinction in terms of character and therefore amenity between general commercial advertising associated with a business carried on at the site such as Lipton iced tea advertised on barriers and umbrellas at cafes which serve Lipton iced tea. As Ms Smith explained, the advertising of Lipton iced tea on a barrier or umbrella of a café "reflects the nature of their business". It is consistent with the recognition in the Introduction to the Signs Policy of "the legitimate need for signs to give direction and to identify and promote businesses and buildings". It is consistent with the general guidelines in relation to inscriptions on signs in cl 7.3 of the Policy, which says that signs generally shall only display nominated categories including "details of the goods sold in the premises". Moreover, Ms Smith said that advertising of Lipton iced tea and other products sold at cafes are restricted by Council policy to 10% of the area of the surface in question. This control recognises the distinction in character between commercial advertising associated with an on-site business and general commercial advertising, and ensures that the former does not, by stealth, become the latter.
98 In relation to the columns used for general commercial advertising at
each end of the Murray Street Mall, Ms Smith explained that her failure to refer to that advertising was due either to her focus on the sign locations
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in question or her knowledge that the general advertising signs are soon to be removed. The Tribunal does not consider that Ms Smith's omission to refer to these general advertising signs suggests that a person in the mall will not respond differently to general commercial advertising as against commercial advertising related to an on site business.
99 Ms Smith's evidence generally and the terms of the Signs Policy each
suggest, and the Tribunal finds, that there is an appreciable difference in character between general commercial advertising, on the one hand, and commercial advertising associated with a business operating at the relevant site, on the other. The latter type of advertising is characteristic of certain of the areas which are the subject of these proceedings and is reasonably anticipated by the applicable planning instruments and policies. The former type of advertising is not characteristic of any of the areas that are the subject of these proceedings and the Signs Policy contemplates that the commercial advertising in the City will not generally be of this type.
Adbooth's third global argument – general commercial advertising on Adshel bus shelters
100 Ms Smith gave evidence that, in about 1998, the City entered into an
agreement with a business trading as Adshel under which Adshel has been allowed to display general commercial advertising on bus shelters which it has erected and maintains in the City's local government area. General commercial advertisements were first placed on the Adshel bus shelters at about that time. Ms Smith said that:
"The signs on those shelters were simply considered as part of a public work of maintaining … or … installing street furniture and were not given the rigour of … assessment from a planning aspect."
101 In 2005, the Chief Executive Officer of the City approved a variation
to the agreement with Adshel to permit scrolling advertising on about 20 of the bus shelters. The contract section of the City considered that part of the reason for approval of the variation was that scrolling advertisements would add vitality through colour and movement. However, the variation was not subject to any planning assessment.
102 The Tribunal is unaware of the planning regime which applied at the
time when the City approved the display of the general commercial advertising in the Adshel bus shelters and commercial advertisements were first placed on the bus shelters. In Dosan Pty Ltd v Rockdale City
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Council (2001) 117 LGERA 363, Lloyd J, in the New South Wales Land and Environment Court, noted at [138] that:
"The presumption of regularity is a rule of evidence to the effect
that when:' … an act is done which can be done legally only after the performance of some prior act, proof of the later [sic] carries with it a presumption of the due performance of the prior act.'
(Knox County v Ninth National Bank (1893) 147 US 91, cited by Griffith CJ in McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850, with whom Barton and O'Connor JJ agreed)."
• 195 Adelaide Terrace, Perth (Site 1); • 239 Adelaide Terrace, Perth (Site 2); • 16 Bennett Street, Perth (Site 4); • 42 Bennett Street, Perth (Site 5); • 34 Francis Street, Northbridge (Site 8); • 92 Francis Street, Northbridge (Site 9);
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• 167 Hay Street, Perth (Site 10); • 249 Hay Street, Perth (Site 11); • 815 Hay Street, Perth (Site 12); • 976 Hay Street, Perth (Site 13); • 84 Hill Street, Perth (Site 15); • 18 Irwin Street, Perth (Site 16); • 26 Lake Street, Northbridge (Site 18); • 88 Murray Street, Perth (Site 20); • 155 Murray Street, Perth (Site 21); • 223 Murray Street, Perth (Site 22); • 300 Murray Street, Perth (Site 23); • 356 Murray Street, Perth (Site 24); • 464 Murray Street, Perth (Site 25); • 27 - 29 Parker Street, Northbridge (Site 27); • 2 Plain Street, Perth (Site 29); • 81 Royal Street, East Perth (Site 30); • 10 St Georges Terrace, Perth (Site 31); • 28 St Georges Terrace, Perth (Site 32); • 178 St Georges Terrace, Perth (Site 33); • 249 St Georges Terrace, Perth (Site 34); • 70 Stirling Street, Perth (Site 35); • 110 Terrace Road, Perth (Site 36); • 149 Terrace Road, Perth (Site 37); and • 244 Wellington Street, Perth (Site 38).
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I certify that this and the preceding [210] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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Attachment A
Attachment A to these reasons contains photographs of signage panels displaying Telstra standard telephone services advertising:
• Site 1 (195 Adelaide Terrace, Perth), • Site 4 (16 Bennett Street, Perth), • Site 16 (18 Irwin Street, Perth), • Site 20 (88 Murray Street, Perth) and • Site 33 (178 St Georges Terrace, Perth).
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Attachment B
Attachment B to these reasons is a map showing the locations of the 41 sites.
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Attachment C
Attachment C to these reasons contains photographs of general commercial advertising which has been placed by Adbooth on Telstra public telephone booths and pedestals in other States.
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