| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : APN OUTDOOR and CITY OF COCKBURN [2014] WASAT 32 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 5 DECEMBER 2013 DELIVERED : 5 DECEMBER 2013 PUBLISHED : 20 MARCH 2014 FILE NO/S : DR 65 of 2013 BETWEEN : APN OUTDOOR Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords: Town planning Local government Development approval Regulation of signs and advertisements Third party advertising sign Preliminary issue Whether town planning scheme permitted third party signage Whether commercial signage must be affixed to relevant commercial premises Characterisation of 'land use' Whether third party signage an independent use of land Whether a use not listed Whether a commercial use Construction of scheme Tribunal holding that third party signage an innominate use and not a relevant commercial use Third party signage not prohibited under scheme Words and phrases: 'advertisement'; 'sign'; 'innominate use'; 'use not listed' Legislation: City of Cockburn (Local Government Act) Amendment Local Law 2012 (WA), Pt VIII
City of Cockburn Town Planning Scheme No 3, cl 4.4, cl 4.4.1, cl 4.4.2, cl 4.4.2(a), cl 5.9, cl 5.9.3(d), Sch 1, Sch 2
Planning and Development Act 2004 (WA)
Town Planning Regulations 1967 (WA), cl 4.4.2, Appendix B Result: Preliminary issue determined in applicant's favour
No prohibition on third party signage
Summary of Tribunal's decision: The applicant, APN Outdoor, specialises in the erection of third party commercial signs. These signs are advertisements which are not associated with the premises on which the sign is displayed.
The City of Cockburn refused APN Outdoor planning approval for such a sign on the basis that the City's town planning scheme prohibited such signs. This was because, it was said, commercial advertising signs could only be erected on the property to which they related.
The town planning scheme did not deal with such signs as a specified category of land use but it did make provision for dealing with 'uses not listed'.
The Tribunal determined the matter as a preliminary issue. The Tribunal disagreed with the City of Cockburn.
The Tribunal held that the use was not a relevant commercial use that would attract the express prohibition on commercial signs other than those erected on the property to which they related. Rather, by the application of the cases on uses not listed, the proper approach was to first characterise the use of the land.
The Supreme Court of Western Australia had decided that commercial advertising which advertised businesses 'other than such as are carried out on at the premises' could constitute an independent use of land. In the Tribunal's view, the use was not a relevant commercial use regulated by the scheme but was rather an innominate use which could be dealt with as a 'use not listed'.
The preliminary issue was therefore resolved in the applicant's favour.
Category: B
Representation: Counsel:
Applicant : Ms B Moharich
Respondent : Mr D McLeod
Solicitors:
Applicant : Flint Moharich
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; (2012) 187 LGERA 231
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147
Cascone v Whittlesea Shire Council (1993) 80 LGERA 367
Claude Neon Ltd and City of Perth (unreported, WA Sup Ct, Kennedy J, 31 July 1987 [BC8700740])
Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253
GMF Contractors Pty Ltd v Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 151 LGERA 74
Godenzie v City of Geraldton-Greenough [2010] WASAT 107; (2010) 72 SR (WA) 312
Kenny v Shire of Chapman Valley [2007] WASAT 21; (2007) 49 SR (WA) 127
Lederer v Sydney City Council (2001) 119 LGERA 350
Lombardo v Western Australian Planning Commission [2009] WASAT 122
Vary Enterprises Pty Ltd and the City of Belmont [2008] WASAT 65
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 A preliminary issue has arisen with respect to the regulation of third party advertising signs in the City of Cockburn (City or respondent). 2 APN Outdoor (applicant) wishes to erect an advertising sign not associated with the premises on which it is displayed. That is, the applicant wishes to obtain planning approval for the situation where 'a landowner allows an outdoor media display company [here, APN Outdoor] to display an advertisement for a third-party product'. 3 The City says that on a true construction of the City of Cockburn Town Planning Scheme No 3 (TPS 3 or Scheme), such signs are prohibited, as commercial advertising signs 'must be erected on the property to which they relate'. 4 The Tribunal, for the reasons that follow, determined the preliminary issue in favour of the applicant. 5 The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Preliminary issue and relevant facts and circumstances 6 The preliminary issues for determination in this review have been expressed by the respondent as follows: (a) whether the erection of a third party advertising sign, such as that proposed by the applicant, should be regarded as falling within the category of Commercial Uses under the City of Cockburn Town Planning Scheme No 3 (TPS 3); and (b) whether the erection of such a sign should be regarded as not possible or as prohibited under TPS 3; or (c) whether the appropriate course is to treat the erection of the proposed third party advertising sign as involving a use not listed under the Zoning Table of TPS 3 and therefore the subject of a determination be made by the [C]ouncil under (i), (ii) or (iii) of cl 4.4.2(a) of TPS 3. 7 This statement of the preliminary issues draws upon a useful document ('Respondent's Statement of Preliminary Issue to be Determined') whereby the City's counsel, Mr McLeod, has also summarised the essential arguments, facts and circumstances surrounding the preliminary issue. These matters may be taken as either common ground between the parties or as a fair summary of the issues. So far as are relevant, these other matters are as follows: … 2. [The applicant] proposes … to erect on the land at Lot 24 Spearwood Avenue, Bibra Lake (Lot 24) a Third Party Advertising Billboard Sign. 3. The [a]pplicant, at paragraph 1.2 of [its] November 2012 Development Application [to the City of Cockburn] elaborated on its sign proposal as follows: 'Third party advertising signage (also commonly referred to as "outdoor advertising" or "major promotional" signage) is distinct from other forms of advertising. These signs are typically located in areas which have high visibility and are heavily trafficked, such as central business areas, along major transport routes and transport hubs such as airport, bus and train stations, in order to attract as many viewers as possible. These signs are typically larger than standard advertising signs (approximately 40m2) and promote various goods and/or services to the public, with the sign content typically rotating periodically, consistent with their role as a promotional medium. These signs are not uncommon within the Perth Metropolitan Area.' The Outdoor Media Association (OMA), which is the peak national body representing the outdoor advertising industry in Australia, defines third party advertising signage as follows: 'Advertising in which the advertisement is not associated with the premises on which it is displayed. That is, a landowner allows an outdoor media display company to display an advertisement for a third-party product.' A critical element in this definition is the fact that the proposed advertisement is not associated with the premises on which it is displayed. 4. … Lot 24 is zoned 'Industry' under TPS 3. 5. The [r]espondent says that the erection of such a sign and its operation would be a commercial activity, and if treated as a separate use, would ordinarily be treated as falling within the category of commercial uses. 6. Third party advertising signage, if regarded as a use, is a use not mentioned in the Zoning Table of TPS 3. 7. The [a]pplicant says that the use should be regarded as a 'use not listed' and dealt with as such under clause 4.4.2 of TPS 3 [reproduced below]. The [a]pplicant says that as a use not listed, the Council has a discretion [whether] to: (i) Determine that the use is consistent with the objectives of the Industry zone; (ii) Determine that the use may be consistent with the objectives of the zone, and thereafter following the advertising procedures in the Scheme; or (iii) Determine that the use is not consistent with the objectives of the Industry zone and is therefore not permitted. 8. The [r]espondent admits that the erection of Third Party Advertising Signs is not specifically mentioned in the Zoning Table of TPS 3. 9. The [r]espondent says however that when the Council is dealing with a use not specifically mentioned in the Zoning Table, before the Council gets to the discretionary determinations in (i), (ii) and (iii), there is a necessary prior determination under the first paragraphs of clause 4.4.2, to decide 10. The use categories in the Zoning Table are: Residential Uses; Commercial Uses; Industrial Uses; Rural Uses; and Uses Not Listed. 11. The [r]espondent says that it was reasonably open to the Council on the facts and the law to conclude that the erection and operation of the proposed Third Party Advertising Sign could reasonably be determined as falling within the type, class or genus of activity of the Commercial Uses category in TPS 3. 12. On that basis, it becomes apparent why [, in the respondent's view,]there is no mention of such a use in the Zoning Table. Clause 5.9.3 of TPS 3 provides in effect that when considering Commercial Uses, advertising signs can only be erected on the property to which they relate (clause 5.9.3(d)(iii) [reproduced below]). 13. As the proposed sign would, by definition, amount to an advertisement 'not associated with a premises on which it is displayed[, s]uch activity would plainly be commercial in nature, and by necessary implication of the provisions of clause 5.9.3(d)(iii)[,] is not possible under TPS 3. 14. The erection of a Third Party Advertising Sign, if it is [to be] regarded as a use, properly falls within the use category of Commercial uses under the Zoning Table [of] TPS 3. As such, clause 5.9.3(d)(iii) makes it clear that the erection of a Third Party Advertising Sign is not possible under TPS 3.
The parties' respective positions 8 The critical question that arises in respect of the preliminary issue, in the Tribunal's view, is how is a proposed land use - which is allegedly a 'use not listed', a matter apparently expressly regulated under TPS 3 - to be dealt with as a matter of planning law in the circumstances of the case. As can be seen from the above summary, Mr McLeod says, essentially, that it is necessary (at least with respect to the question of an approval for signage under TPS 3 in these circumstances) to start with TPS 3's express provisions respecting general commercial uses purposes. 9 This is because, as Mr McLeod submits, commercial uses are regulated specifically as to signs. Thus, attention is drawn to cl 5.9.3(d) of TPS 3, which is in the following terms (emphasis added): Advertising signs shall be - (i) attached to the walls or facade of a building or structure so as not to protrude above the height of the wall to the building or the structure; (ii) limited to a common pylon sign or hoarding for developments comprising more than two units, strata titled units or businesses up to a maximum of six (6) advertisements to each sign where units, strata title units or businesses exceed 6 in number or the development comprises a service station as one component then a maximum of two pylon signs or hoardings are permitted for that site; (iii) erected on the property to which they relate; (iv) professionally designed and installed and not detract from the streetscape within which they are located. Clause 5.9.3(d) of TPS 3 is found within cl 5.9, which deals with 'Commercial and Industrial Uses'. 10 Ms Moharich, counsel for the applicant, submits to the effect that the more or less orthodox approach to these issues ought to be applied here. That is, if the Zoning Table does not deal with a recognisable land use activity, whether defined or not in the Scheme, then the express 'use not listed' provisions are to be applied first, according to their terms.
The respondent's policy position 11 An examination of the respondent's submissions in light of TPS 3's provisions (see, for example, cl 5.9.3(d) above) and the City's written policies sourced in or complementary to TPS 3 indicates, speaking generally, a strong policy preference for signs to be restricted to signs confined to the originating premises, except, perhaps, for free-standing directional signs, including business signs on road reserves and on Council owned or managed land: see, for example, Engineering Policy AEW 9, dealing with 'Internally Illuminated Directional Signs', and Policy APD 72, which is a Building Services note dealing with 'Signs and Advertising'; cf also: Pt VIII ('Signs and Hoardings') of the City of Cockburn(Local Government Act) Amendment Local Law 2012 (WA) (Local Law). 12 Thus, to take one example from this policy framework, the following express objective is found in Policy APD 72: '[Ensuring] that signs only relate to the services and products on the site'. 13 Hence, the issue may also be seen as whether these policy preferences have ever been effectively or sufficiently translated into TPS 3.
Tribunal's general approach to cases of a 'use not listed' 14 I commence my analysis of the issues by noting the practice in this jurisdiction with respect to a 'use not listed'. I observe that the Tribunal's current approach, with respect, resembles the approach contended for in this review by the applicant and not that contended for by the respondent. Thus, where the issue has arisen in the past in this Tribunal, an inquiry (in effect, characterisation) is usually commenced first - as the applicant seeks to do here - under the equivalent to cl 4.4.2 of TPS 3 to ascertain, by reason of the application to the found or agreed facts, whether a particular proposed land use fits within a defined or known category. 15 Clause 4.4.2 of TPS 3 (found in cl 4.4 dealing with 'Interpretation of the Zoning Table') provides as follows: 16 Lombardo v Western Australian Planning Commission [2009] WASAT 122 is a fairly typical case in this jurisdiction illustrating, at [63] to [71], the approach taken with 'uses not listed'. There, the Tribunal had to deal with a reception centre which had been identified in the Master Plan as a specified use, but which had been omitted from or had otherwise not found its way into the relevant Zoning Table (at [69]). The Tribunal assessed the proposed use as a use not listed under the planning framework's equivalent to cl 4.4.2 of TPS 3. 17 To similar effect, see GMF Contractors Pty Ltd v Shire of Serpentine-Jarrahdale [2006] WASAT 353; (2006) 151 LGERA 74, dealing with whether a waste transfer and recycling station was Industry General or a use not listed (at [31]), Godenzie v City of Geraldton-Greenough [2010] WASAT 107; (2010) 72 SR (WA) 312, dealing with whether the storage of vehicles and equipment was a use not listed (at [32] to [38]), and Vary Enterprises Pty Ltd and the City of Belmont [2008] WASAT 65, dealing with the question of whether a dog daycare facility fell within the use class 'Dog Kennels' or was a use not listed (at [23]). 18 Sometimes the issue may not arise because it is clear that the alleged innominate use is in fact 'specifically mentioned in the Zoning and Development Table as a permitted use in other zones' and therefore cannot be a use not listed (as TPS 3 also provides at cl 4.4.1). See, for example, Kenny v Shire of Chapman Valley [2007] WASAT 21; (2007) 49 SR (WA) 127 (at [26] and [29]). In that case the Tribunal suggested, at [26], that: The purpose of the [use not listed] clause is to provide flexibility in relation to innominate uses that are not specifically contemplated under the Scheme.
Approaches elsewhere in Australia 19 These approaches appear to be the methodology adopted elsewhere in Australia; for example, in both Queensland and Victoria. Thus, looking first at the Queensland material found in Planning and Development, Queensland (Thomson Reuters Looseleaf Service at [1350]), the learned authors say (emphasis added): … The primary exercise of categorisation of use or proposed use is a basic exercise that has frequently concerned the [Planning and Environment Court]. It is itself a preliminary to identifying a change, and may occur in all provisions of the Act that relate to uses. However, the categorisation exercise has predominantly concerned definitions in planning schemes[.] Then, the authors go on to set out a number of basic propositions 'relevant to … the process of correct identification', including the following observations (internal citations omitted, except where indicated): … Where conflict appears to arise, it must be alleviated so far as possible by adjustments which best give effect to the purpose and language of the provisions … The appropriate approach is to ask 'what, according to ordinary terminology, is the appropriate designation of purpose best served by the use of the premises at the material date' [citing Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535] … [The court] must conduct its task of characterisation in a practical and common sense way to determine the appropriate genus which best describes the activities in question. What must be characterised is the proposal the subject of the application, rather than some further or other application which might be made at another time. And then the authors go on to mention the 'best fit' approach (that is, '[w]here there are two or more purposes which are apt to cover a particular proposal, a "best fit" approach is appropriate …'). Interestingly, they observe (internal citations omitted, emphasis added) that: The [Planning and Environment Court] will not be quick to identify a novel (innominate) use not covered by the drafters of a scheme. However, the 'best fit' approach should not be used 'in order to strain a planning scheme definition to comprehend some particular proposal'. To do so would be to grant omniscience to the drafters of the scheme. 20 In Victoria, the approach is broadly the same. Thus, in Planning Law in Australia (Thomson Reuters Looseleaf Service at [14.3460]), the learned authors say: … In general, there are definitions of the specified uses in the planning scheme, as well as reference to other, undefined (innominate) uses. To decide whether a proposed 'use' of land is permitted by a planning scheme (whether with or without a permit), it is necessary to characterise that use. 21 The authors refer to the leading Victorian authority Cascone v Whittlesea Shire Council (1993) 80 LGERA 367 (Cascone v Whittlesea Shire Council) at 376 and 377, per Ashley J. Of his Honour's 'five principles for characterising use', the Tribunal needs only to refer to principle 3, which is in the following terms (emphasis added): It is wrong to approach the ascertainment of purpose of a proposed use on the footing that it must fit within one (or more) of the uses defined in a scheme; at least that is so where there is provision for innominate uses in the scheme. 22 Cascone v Whittlesea Shire Council is cited by LA Stein in his Principles of Planning Law (OUP, 2008) at 71 and 72. The learned author says (original emphasis): The practice in drafting planning schemes is to define a use class by describing particular activities that most approximate the subject the matter of the class … Where a use class is not mentioned as either permitted or prohibited, it bears the name of an 'innominate' use class and precision in the description of activities is then not as important [there follows reference to principle 3 found in Cascone v Whittlesea Shire Council, set out above]. The reference to a 'use class' or to a use of that 'class' is a reference to the overarching category or 'genus' into which its activities fall. The learned author then goes on to discuss the possible differences in approach where 'existing use' rights are in issue, a debate which it is unnecessary to refer to for present purposes. 23 The methodology in New South Wales is the same, although recently, Preston CJ of the Land and Environment Court has issued the following cautionary observations. In Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147, his Honour said, at [32] and [33], (emphasis added): [T]he question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category. … In this case, therefore, the relevant inquiry was whether Pet Carriers' proposed development was within a purpose of development that may be carried out with development consent and not one that is prohibited. Relevantly, this required determining whether the proposed development was to be characterised as being for the nominate permissible purpose of 'commercial premises' and not for any innominate prohibited purpose, such as 'airport-related land use' or 'air freight forwarder'.
The approach to be taken to signage in this case 24 The Tribunal intends to approach this case on the same basis as the various 'use not listed' cases referred to above found in this jurisdiction and elsewhere. Accordingly, one must start the process of characterisation with any relevant scheme text definitions. Here, 'advertisement' is defined in TPS 3 to mean: … any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and includes any hoarding or similar structure used, or adapted for use, for the display of advertisements. The term includes any airborne device anchored to any land or building and any vehicle or trailer or other similar object placed or located so as to serve the purpose of advertising. 25 '[S]ign' is defined in TPS 3 to mean a sign 'as defined under the local government's Signs, Hoardings and Bill Postings By-laws'. This is a reference to the definition of 'sign' found in the Local Law, which is defined 'unless the context otherwise requires' as including: … an advertising device, a portable sign, a sign board, wall panel or a bunting sign and a clock, other than a clock which is built into a wall and does not project beyond the face of the wall but does not include flags and bunting which carry no written message, and includes every kind of special sign, panel or advertisement defined in this section or otherwise referred to in this Part[.] These are, of course, general definitions, not specific land use definitions, and are therefore to be found within Sch 1 of TPS 3 and not Sch 2 of TPS 3. Nevertheless, they usefully inform the characterisation process and as has been noted, in any case, in a New South Wales planning case: The word sign is not a highly precise term. This is probably why the relevant [planning] instrument instead uses the word advertisement and advertising structure[.] See per Lloyd J in Lederer v Sydney City Council (2001) 119 LGERA 350 at [5], cited in Galloway & Associates and City of Melville [2007] WASAT 238; (2007) 56 SR (WA) 253 at [37]. 26 This leads to Cavanough J's useful recent discussion in the Victorian Supreme Court, in APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; (2012) 187 LGERA 231. His Honour said, at [70]: There have been many cases in various Australian jurisdictions in which it has been accepted that display of an advertising sign may constitute a use of land. For example, in Clare v Jeff's Bulk Appliances Pty Ltd [[1981] VR 758 at 762; (1976) 36 LGRA 435 at 440], Murphy J observed that it might be said that land was being used to display an advertising sign where the owner of land or of a building 'let out either his land or the side of his building for the purpose of allowing someone to advertise a product generally without any connection between the advertisement and some business being carried on thereon'. His Honour went on to say that 'advertisements commonly seen on hoardings or walls or atop buildings or on the side of bridges might well be considered as a use of land for the purpose of advertising'. 27 Importantly, Cavanough J also went on to cite with approval Kennedy J's decision in Claude Neon Ltd and City of Perth (unreported, WA Sup Ct, Kennedy J, 31 July 1987 [BC8700740]) at 16. His Honour said of that case, at [72], (emphasis added): … Kennedy J held that commercial advertising which advertises businesses other than such as are carried out on at the premises constituted an independent use of land and constituted 'use of land for a particular purpose' within the meaning of the relevant planning scheme. Thus, there can be little doubt that, but for the possible acceptance of Mr McLeod's construction arguments, to be discussed in a moment, such a land use as is here under consideration, if not otherwise expressly or impliedly regulated, would be characterised as a 'use not listed' and would ordinarily attract assessment at that point under cl 4.4.2 of TPS 3 or any equivalent provision.
Disposition of the respondent's contentions 28 Now, against all of this, Mr McLeod argues essentially as follows. 29 First, that it is not an oversight by the drafters of TPS 3 that they did not list an advertising sign as a use class. This is because, it was submitted, the deliberate regulation of signs is to be found in cl 5.9.3(d) of TPS 3. 30 Secondly, such planning controls, it was submitted, operate when an activity can be properly considered as a commercial use. The corollary appears to be that the commercial use extends beyond or is not limited by the nesting of listed commercial uses found within the Zoning Table. 31 With respect, I cannot accept the respondent's contentions. First, the key controlling mechanism is curiously located only in Pt 5 of TPS 3, which is headed 'General Development Requirements'. Next, the signs related to commercial uses sought to be regulated, on a plain reading of TPS 3's text, would relate to those various enumerated commercial uses (for example, 'Bank', 'Garden Centre', Market' etc found in the Zoning Table: see pages 24 and 25 of TPS 3). It is these commercial uses' signs which are to be regulated. Hence, such users' signs are to be 'erected on property to which they relate': cl 5.9.3(d)(iii) of TPS 3. 32 And this clause (cl 5.9.3 of TPS 3) says, with respect, nothing or insufficiently addresses an established independent category of land use – that is, third party signs - recognised elsewhere in the common law (and, specifically, in planning law), and which is clearly capable of amounting to a use not listed on the application of ordinary principles, as is, I think, illustrated above. 33 Next, as Ms Moharich submits, the Zoning Table in TPS 3 itself has a heading of 'Uses not listed', expressly referring the reader back to cl 4.4.2. In my view, these clauses must be given work to do. They were almost certainly inserted following the Model Scheme Text (see cl 4.4.2 of Town Planning Regulations 1967 (WA) Appendix B, Model Scheme Text) against the backdrop of settled principles of law and practice as regards identifying and assessing uses not listed. 34 With great respect to Mr McLeod, nothing in the text of TPS 3 that he has identified would displace this very strong presumption as to the drafter's purposes and intentions. Very clear words would be needed to elevate what seems to me a narrow or specific development standard or requirement - easily referrable to signs connected to buildings or premises in respect of enumerated commercial uses - into a prohibition that says that third party signs are never permissible, and consequently renders nugatory a standard mechanism for dealing with uses which are not listed. 35 To put it another way, the City's policy preferences have not, in the Tribunal's view, been effectively or sufficiently translated into a Scheme prohibition. For these reasons, the preliminary issues must be determined in the applicant's favour.
Orders 36 For the reasons given above, the orders of the Tribunal will be: 1. The preliminary issues are determined as follows: (a) Whether the erection of a Third Party Advertising Sign such as that proposed by the applicant should be regarded as falling within the category of Commercial Uses under the City of Cockburn Town Planning Scheme No 3. Answer: 'No'. (b) Whether the erection of such a sign should be regarded as either not possible or as prohibited under the City of Cockburn Town Planning Scheme No 3. Answer: 'No'. (c) Whether the appropriate course is to treat the erection of the proposed Third Party Advertising Sign as involving a use not listed under the Zoning Table of City of Cockburn Town Planning Scheme No 3, and therefore the subject of a determination being made by the Council under one or other items (i), (ii) and (iii) of clause 4.4.2(a) of the City of Cockburn Town Planning Scheme No 3. Answer: 'Yes'. 2. The proceeding is adjourned to a directions hearing at 10 am on 20 December 2013. 3. In the meantime, the parties are to file their unavailable dates and the agreed draft programming orders, as soon as practicable, including proposed hearing dates from and including 24 March 2014. |