Amberlee Nominees Pty Ltd and Shire Of Broome
[2008] WASAT 124
•29 MAY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AMBERLEE NOMINEES PTY LTD and SHIRE OF BROOME [2008] WASAT 124
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 29 MAY 2008
FILE NO/S: DR 32 of 2008
BETWEEN: AMBERLEE NOMINEES PTY LTD
Applicant
AND
SHIRE OF BROOME
Respondent
Catchwords:
Town planning - Development application - Refusal - Additional signage on existing pylon sign - Sign advertising premises in a local shopping centre - Impact of sign on local streetscape - Distraction caused to drivers - Relationship to local laws on signs, hoardings and billposting - Increase in size of sign area
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Broome Town Planning Scheme No 4, cl 4.15, cl 5.13
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
The application for review is allowed
The respondent's refusal of 18 December 2007 is set aside and conditional planning approval is granted for the proposed 2.37 square metre increase in sign area of the existing pylon sign for the Boulevard Shopping Centre in accordance with the plans stamped received and dated 22 November 2007 by Shire of Broome
Category: B
Representation:
Counsel:
Applicant: Mr S Allerding
Respondent: Mrs M Teoh
Solicitors:
Applicant: Allerding & Associates (Town Planners)
Respondent: Shire of Broome
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Amberlee Nominees Pty Ltd applied to the Shire of Broome for planning approval to increase from 10.2 square metres to 12.576 square metres, the area of signage on the existing pylon sign at the front of the Boulevard Shopping Centre, Frederick Street, Broome.
The Shire of Broome refused the application because it considered the new sign would be injurious to the amenity and safety of the area.
Amberlee Nominees Pty Ltd applied to the Tribunal for a review of this decision, submitting that the development was appropriate for approval because of the minor nature of the change and the location of the sign.
The Tribunal found that, in the circumstances, the available discretion could be exercised and approval granted for the proposed additional sign area. The shopping centre had doubled in area since approval of the existing sign in 1995, and so an increase in area was considered to be warranted. It was proposed to consolidate the additional area on the existing sign, consistent with the objectives of the sign controls, and there would be no increase in the overall height or width of the frame of the sign. It was also concluded that because of the orientation of the sign, the setback from the carriageway and the houses opposite, and the vegetation scattered along the verge, the sign would have a limited impact on safety and the amenity of the locality.
The Tribunal allowed the application and approved the proposed increase in the area of the existing pylon sign.
Introduction
These proceedings involve an application by Amberlee Nominees Pty Ltd (applicant) pursuant to s252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal by the Shire of Broome (respondent or Council) to approve an application for approval to reface and increase the advertising area on the existing pylon sign at the Boulevard Shopping Centre, No 106 (Lot 202) Frederick Street, Broome (site).
At a directions hearing, the Tribunal ordered that the parties were to file and provide to each other submissions on the issues, and the matter was then to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The site and the proposal
The site is located on the northern side of Frederick Street, has an area of 5.5848 hectares and contains a development known as the Boulevard Shopping Centre which has a floor area of about 12,000 square metres (shopping centre). Approximately half of the parking area for the shopping centre is between Frederick Street and the front entrance to the building.
In 2007, the respondent approved a service station at the western edge of the car park in front of the shopping centre. The photographs provided by the parties show that the service station is yet to be built. A sign licence was granted for a 6 metre high pylon sign with an area of 8.2 square metres at the edge of the proposed crossover from Frederick Street to advertise the service station and, as required by law, fuel prices. There is apparently a dispute about a further proposal to shift that sign from east of the access to west of the access.
The Broome International Airport abuts the lot to the north and the west, and a vacant site known as the Broome Recreation and Aquatic Centre (BRAC) reserve is on the eastern side. On the southern side of Frederick Street opposite the site is low density single‑storey residential, and to the south‑east, the Hayes Oval Recreation Reserve.
Frederick Street is a key route along which residents, tourists and commercial traffic travel between the central commercial area of Chinatown to the east, Cable Beach to the west and the port to the south.
Central to the frontage of the site and set back about 7.5 metres is an existing 10 metre high pylon sign, approved in 1995. The frame of the sign is made up of two columns, each comprising four posts, topped by a section with the appearance of a pitched roof between the columns. The columns are 2.62 metres apart and the structure is aligned perpendicular to Frederick Street. Between the columns is 10.2 square metres of internally illuminated sign panels advertising businesses within the shopping centre.
The proposal, as set out in the plans stamped received and dated 22 November 2007 by the respondent, is to increase the surface area of the illuminated sign between the columns from 10.2 square metres to 12.576 square metres, and that the sign be refaced. The pylon structure would remain unchanged.
Planning framework
The site is zoned "Local Centre" with the additional use of Showroom in the Shire of Broome Town Planning Scheme No 4 (TPS 4). Clause 4.15 of TPS 4 states that for the Local Centre zone:
"The aim of the zone is to provide for convenience retailing, health, welfare and community facilities which serve the local neighbourhood.
…
When determining site and development requirements in the Local Centre Zone, Council will have regard to the provisions of the Broome Local Commercial Strategy."
The Local Commercial Strategy refers to the relative significance of commercial centres in Broome. The central location and significance of the Boulevard Centre is recognised. Advertising signs are not referred to.
Clause 5.13 of TPS 4 is headed Control of Advertisements. This requires that, for applications for development approval of advertising signs at cl 5.13.3 as follows:
"… Council shall examine each such application in the light of the objectives of the Scheme and with particular reference to the character and amenity of the locality within which it is to be displayed, including its historic or landscape significance and traffic safety, and the amenity of adjacent areas which may be affected."
The respondent, in its submission, pointed out that the application before the Tribunal was for review of the Council's refusal of a development application under TPS 4. The respondent also said that no sign can be erected without a sign licence issued pursuant to the Local Laws Relating to Signs, Hoardings and Bill Posting (signs local law). The respondent submits that it would be relevant for the Tribunal to make its determination cognisant of the relevant signs local law provisions. Clause 3.1.1 of the signs local law requires that a licence be issued under the local laws for any sign. Clause 3.1.5 sets out that the Council may refuse a licence if:
(a)such sign or advertising device would, in its opinion, increase the number of variety of signs so as to become too numerous or various in the locality to be injurious to the amenity or natural beauty or safety of the locality, or
(b)such sign or advertising device advertises goods, services or activities which are not produced, displayed or offered for sale or otherwise available to the public upon or from the premises where such sign or hoarding is erected, attached or affixed.
Clause 5.12.1 of the signs local law specifies the size and design of a pylon sign as follows:
"A pylon sign shall:
(a)not have any part thereof less than 2.75 m or more than 6 m above the level of the ground immediately below it;
(b)not exceed 2.6 m measured in any direction across the face of the sign or have a greater superficial area than 4 square metres;
(c)not project over any adjacent street;
(d)be supported on one or more piers or columns of brick, stone, concrete or steel of sufficient size, strength and construction to support the sign and to comply with the Wind Loading Code AS 1170.2;
(e)where supported by two or more piers or columns, the space between the piers or columns not be wholly or partly filled in with any material below 2.75 m above ground level;
(f)not be within 2 m of the side boundaries of the lot on which it is erected unless the lot on which the pylon sign is erected abuts an intersecting street or right of way, in which case the Council may authorise the erection of a sign at a lesser distance than 2 m;
(g)not have any part thereof less than 6 m from any part of another sign erected on the same lot."
Clause 5.12.2 of the signs local law sets out the specific matters relating to the provision of multiple pylon signs on one lot:
"… Council may require all the pylon signs to be incorporated into one sign in which event:
(a)initial approval shall be given to the pylon sign framework together with one or more sign infills;
(b)an application is to be submitted and approval given for each additional infill;
(c)all infills are to be an equal size and space is to be provided to the sign for one infill for each shop or unit on the lot.
(d)the total area of the infill signs specified under sub By‑law 5.12.1(b) may be increased by up to a maximum of 10 square metres."
Clause 5.12.3 of the signs local law states:
"Notwithstanding the provisions of sub Local Law[s] 5.12.1 and 5.12.2, approval for the erection of a pylon sign that does not meet the requirements of these Local Laws may only be granted by the resolution of the Council."
The refusal
The respondent refused the application:
"… on the grounds that the advertising device is injurious to the amenity and safety of the area."
The issue
The issue to be considered in this matter is whether the proposed change to the existing pylon sign is injurious to the amenity and safety of the area.
The submissions of the parties
The respondent acknowledged that advertising signs are an element of the local built environment and that it is appropriate for businesses to advertise their operation. It said, however, that Broome is known for its unique environmental and cultural ambience, and the form and height of native vegetation is generally low. Council has developed its TPS 4 provisions and signs local law with a focus on ensuring the size and location of signs is carefully managed so as not to detract from the Broome landscape and character.
The respondent said that the sign was already a significant feature in the landscape, and any increase in size would increase the impact on the amenity for users of the road and the houses opposite. Frederick Street, while identified as a district distributor, was not highly commercialised, and it was asserted, without elaboration, that the sign had the potential to increase the commercialisation of the street.
The respondent said that during peak tourist season, Frederick Street operated at close to capacity. Traffic modelling predictions for 2010 estimated that traffic on Frederick Street would increase to approximately 17,000 vehicles per day. It was also said that there was considerable foot traffic between the shopping centre and the residential area to the south, and a shared cycle/pathway that runs parallel with Frederick Street is used by students at the nearby high school and residents who walk or cycle to local destinations. The respondent said the applicant was incorrect in its assertions and the Council had the changes to the proposed service station pylon sign in mind when it found the changes proposed would be unsafe. It was the respondent's submission that the existing sign was prominent both day and night, and an increase in size had the potential to distract drivers on the road and compromise the safety of other road users, pedestrians and cyclists.
The comment was also made that large signs run the risk of being unsafe structures when severe storms or cyclones impact on Broome.
The applicant submitted that the reference to safety in the refusal was in error, and related to the relocation of the proposed service station sign, which was considered by the respondent at the same meeting as the shopping centre sign. It was said the sign area to be added to the existing sign would have no additional impact on the safety of pedestrians, cyclists and drivers. This was because the sign was already in place, illuminated both night and day, the new infill panels would be 3.224 metres above the ground, adequate sightlines would be maintained, and the sign was well set back from Frederick Street.
The applicant was also of the view that there would be no injury to the amenity of the area. The sign would not dominate the landscape because of the setback, the area of the site and existing vegetation. It was also said there would be no impact on the amenity of the single residential development on the southern side of Frederick Street. This was because the sign was separated from the houses by about 75 metres across Frederick Street, a district distributor road which will ultimately accommodate up to 17,000 vehicles per day.
The applicant acknowledged that the surface area of the sign was to be increased from 10.2 square metres to 12.567 square metres, but it is considered that discretion should be exercised to allow this, because it limited the proliferation of multiple single tenancy signs. The applicant referred to the size of the shopping centre and its function within Broome. It was described as the largest shopping centre within Broome, with recent expansion doubling the size to approximately 12,000 square metres and comprising Woolworths, Target and 23 additional speciality stores. This has occurred without a proliferation of signage on or around the site by consolidating signage in the existing pylon sign. The shopping centre development had no other pylon signs despite what was considered to be a capacity for additional signs.
The applicant said the inclusion of multiple tenancies on a single sign met the respondent's preferred signage outcome found at cl 5.12.2 of the signs local law. Consolidating the signage into this existing sign had the overall effect of reducing the commercialisation of the streetscape, rather than increasing it, as asserted by the respondent.
In response to the respondent's assertion about the safety of the structure in storms and cyclones, the applicant said that the existing sign structure had been erected in accordance with the appropriate cyclonic standards. There was no evidence, nor had it initially been identified as an issue, that this increase in surface area would require any change to the structure.
Comment
The applicant states it is seeking that the discretion available at cl 5.12.3 of the signs local law be considered, because the proposal is intended to limit the proliferation of signage that would result from multiple single tenancy signs. The dispensation sought is considered by the applicant to be reasonable in the circumstances.
Where there is the potential for multiple signs, such as with the range of shops on the site, signs local law 5.12.2 encourages signs to be consolidated into a single pylon sign of up to 10 square metres. The existing pylon sign is 10.2 square metres. Clause 5.12.13 of the signs local law provides that a larger sign can be approved. The clause does not set out the circumstances for approving a larger sign.
The Tribunal notes that, since the existing sign was approved in 1995, the shopping centre has approximately doubled in size, according to the uncontested submission of the applicant. It is wished to add to the sign, advertisements for liquor and petrol outlets operated by Woolworths, and the increase in the number of specialty stores from 22 to 45. The Tribunal does not consider, however, that additional stores should be the only basis for determining whether sign area can be increased. TPS 4 and the signs local law also require consideration of the impact of the sign on safety and amenity.
The increase in area is 2.367 square metres, which is achieved by an additional sign length of 903 millimetres between the existing columns. This might be considered not a significant change, given the area of sign already in place. The Tribunal does not accept that such an addition should be accepted simply because of the size of the existing sign. An incremental addition might be requested with each change in the number of premises. At some point, the resultant sign will become unacceptable because it will have reached a size that does have an adverse impact on local amenity and safety. Determining the point at which an increase in the size of a sign, even if small in area, results in the sign becoming unacceptable is a matter of judgment in the circumstances.
One consideration is the impact on the local amenity. It is noted that the sign is about 7.5 metres from the front boundary, and the photographs show parking and accessway between the sign and the front boundary and verge vegetation about 2 metres to 3 metres high. This, it is considered, would limit the impact on the amenity experienced by road users. The aerial photograph shows about five houses opposite the sign. The Tribunal considers the impact on the houses from the proposed increase in sign area would also be limited. The orientation of the sign means the view from the houses would be oblique to the sign, and the sign is greater than 75 metres distant, with Frederick Street and the verge vegetation between.
The Tribunal has considered the changes to the proposed sign and is inclined to the view that safety will not be compromised to the point where the development should be refused. This is because it is not considered that the distraction to drivers will increase significantly. There will still be just this sign for the shopping centre, not the distraction of an additional sign advertising the increase in tenancies. The existing setback from the carriageway and the vegetation scattered along the verge will remain.
There is now to be a second pylon sign on the site, advertising petrol prices at the service station. The Tribunal does not consider, however, that the additional sign area proposed for the existing sign would lead to a commercialisation of the street, particularly as the nearest commercial zone is about 750 metres to the east.
The Tribunal has concluded that the discretion available in signs local law 5.12.3 can be exercised and approval be granted for a sign larger than the 10.2 square metres usually allowed. The shopping centre has doubled in area since approval of the existing sign, and so an increase in area is warranted. The increased signage area of 2.37 square metres will be on the existing pylon sign consistent with the objectives of the signs local law. There will be no increase in the overall height or width of the frame of the sign.
The Tribunal has also formed the view that, when all the circumstances are weighed, the Tribunal believes any impact on safety and the amenity of the locality will be limited and so there is a case for allowing the proposed increase in sign area.
Conditions
As directed by the Tribunal, the respondent filed a schedule of conditions it would want imposed, should the Tribunal decide to approve the proposal. The applicant has advised that it has no objection to the two conditions set out by the respondent.
In its submissions, the respondent raised concern about pylon signs satisfying construction standards for cyclone areas. The applicant pointed out that the existing structure must have satisfied the standards. The Tribunal notes that the respondent did not recommend a condition related to this issue.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The respondent's refusal of 18 December 2007 is set aside and planning approval is granted for the proposed 2.37 square metre increase in sign area of the existing pylon sign for the Boulevard Shopping Centre at No 206 (Lot 202) FrederickStreet, Broome, subject to compliance with the following conditions:
(i)Development must be carried out in accordance with the plans stamped received and dated 22 November 2007 submitted with the application.
(ii)If the development the subject of this approval is not substantially commenced within a period of three years from the date of approval, the approval will lapse and be of no further effect. When an approval has lapsed, no development must be carried out without the further approval of the Council.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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