APN Outdoor (Trading) Pty Ltd v Melbourne City Council
[2012] VSC 8
•18 January 2012. Revision No 1 published 19 January 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2010 06513
| APN OUTDOOR (TRADING) PTY LTD | Appellant |
| V | |
| MELBOURNE CITY COUNCIL | Respondent |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15-16 June 2011 | |
DATE OF JUDGMENT: | 18 January 2012. Revision No 1 published 19 January 2012 | |
CASE MAY BE CITED AS: | APN Outdoor (Trading) Pty Ltd v Melbourne City Council | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 8 | |
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LOCAL GOVERNMENT – Regulation of signs – Whether display of sign is necessarily ‘development’ or may be ‘use’ – Whether existing use rights may accrue – Appeal on questions of law from Victorian Civil and Administrative Tribunal allowed – Planning and Environment Act 1987 ss 3, 6.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J. Gobbo QC with Mr P. Chiappi | Rigby Cooke Lawyers |
| For the Respondent | Mr R. M. Niall SC with Mr M. Townsend | Blake Dawson |
HIS HONOUR:
This is an application for leave to appeal and, if leave be granted, an appeal from a decision of the Victorian Civil and Administrative Appeals Tribunal (‘VCAT’) pursuant to s 148(1)(b) of the Victorian Civil and Administrative Appeals Tribunal Act 1998. The essence of VCAT’s decision was that the display of a sign necessarily constitutes development of land and not use of land; and therefore does not attract the protection of existing use rights granted by s 6(3) of the Planning and Environment Act 1987 (‘the Act’) and cl 63 of the Melbourne Planning Scheme (‘the Scheme’).
The subject sign
The appellant is the owner of a large floodlit promotional sign located on the roof of an office building at 9-15 Moray Street, Southbank (‘the site’). The appellant does not own the land but leases the roof area of the building. The site is an island bounded by Kingsway and its West Gate Freeway entry and exit ramps, and by Moray Street. The sign has two faces, each with an area of 85.5m2, one facing towards Kingsway and the other towards the West Gate Freeway.
The sign was constructed pursuant to planning permit number TP-94-1179 issued by the City of Melbourne in 1995 (‘the 1995 permit’). That permit allowed the appellant ‘[t]o reconfigure existing signs in accordance with the attached endorsed plans’.[1] The planning permit was subject to several conditions including a condition that ‘[t]he location, size, material of construction, colours, wording and degree of illumination … shall not be altered or modified without the written consent of the Responsible Authority’.[2] The 1995 permit did not have any time limit or expiry date.
[1]Exhibit TDC10(b).
[2]Exhibit TDC10(b)
The sign replaced an earlier sign originally constructed on the roof pursuant to permit number 2048 granted by South Melbourne City Council in 1981. That permit allowed the ‘[l]and described as 9 Moray Street, South Melbourne, to be used for the purpose of erecting thereon a panel sign’.
Changes to the regulatory scheme giving rise to the dispute
In 2008, some 13 years after the 1995 permit was granted, the Melbourne Planning Scheme was amended[3] with the effect that the display of the appellant’s sign was purportedly prohibited, subject only to certain transitional provisions and to the discretionary grant of a once-off, further permit of limited duration. This was done by clauses 52.03 and 52.05 of the Scheme (as amended) and by an incorporated document entitled ‘Major Promotion Signs, December 2008’.[4] The incorporated document relevantly provided as follows:
ALTERNATIVE PERMIT EXPIRY
The existing major promotion signs allowed under…Planning Permit T94/1179 9-15 Moray Street, South Melbourne…may continue to be displayed:
·Until 31 March 2009; or
·Where a permit application seeking permission to display the sign is lodged before 31 March 2009, until the permit application is finally determined.
[3]By Amendment VC 49.
[4]TDC6(x).
The appellant apparently considered that the sign had been included in the scope of the incorporated document in error. On 18 March 2009 the appellant wrote to the respondent expressing that view.[5] To seek formal clarification, the appellant at the same time applied pursuant to s 97N of the Act for a certificate stating that the existing use or development of the land complied with the requirements of the planning scheme (‘certificate of compliance’).[6]
[5]Exhibit TDC4(a).
[6]Exhibit TDC4(a).
On 27 March 2009 the appellant applied for a planning permit allowing the ‘continued display of the existing floodlit major promotion (sky) sign’.[7]
[7]Exhibit TDC2(a).
On 2 July 2009 the respondent refused to grant the requested planning permit.[8] On 9 July 2009 the respondent refused the application for a certificate of compliance.[9]
[8]Exhibit TDC2(c).
[9]Exhibit TDC4(b).
The VCAT proceedings
On 27 August 2009 the appellant instituted three proceedings in VCAT.[10]
[10]Affidavit of Thomas Donaldson Callander sworn 9 December 2010, [3]–[8].
First, the appellant applied pursuant to s 97P of the Act for review of the respondent’s refusal to issue a certificate of compliance.[11]
[11]Proceeding P2230/2009.
Second, the appellant applied pursuant to s 77 of the Act for review of the respondent’s refusal to grant a planning permit.[12]
[12]Proceeding P2998/2009.
Third, the appellant applied pursuant to s 149A of the Act and s 124 of the Victorian Civil and Administrative Appeals Tribunal Act 1998 for declarations in the following terms:
(1)The sign erected and displayed on the land situate at 9-15 Moray Street, Southbank and described in the endorsed plans under Planning Permit No. TP94-1179 issued by the City of Melbourne as Responsible Authority on 19 January 1995 to reconfigure existing signs in accordance with the endorsed plans under each permit are [sic] signs that were lawfully displayed on the approval date of Amendment VC49 to the Melbourne Planning Scheme.
(2)The sign may be displayed and continue to be displayed and may be repaired and maintained pursuant to clause 52.05-5 of the Melbourne Planning Scheme.
(3)For the purposes of clause 63 of the Melbourne Planning Scheme an existing use right has been established in relation to the use of the said land for the said sign under the Melbourne Planning Scheme because the use namely the use of the land for the purposes of display of the sign was lawfully carried out immediately before the approval date of Amendment VC49.[13]
[13]Proceeding P2299/2009.
The three proceedings were heard together by Deputy President Gibson who made the following orders:[14]
(1)In application P2299/2009, pursuant to section 149A Planning and Environment Act 1987, I declare that the display of a sign is a development of land.
(2)In application P2300/2009, the decision of the responsible authority is affirmed. Pursuant to section 97P Planning and Environment Act 1987, I direct that the responsible authority must not issue a certificate of compliance under section 97N of the Act.
(3)In application P2298/2009, the decision of the responsible authority is set aside. In permit application TP-2009-204 a permit is granted and directed to be issued for the land at 9-15 Moray Street, Southbank in accordance with the endorsed plans and on the conditions set out in Appendix B. The permit allows:
• The display of a floodlit major promotion sign.
[14]APN Outdoor Pty Ltd v Melbourne City Council [2010] VCAT 1759.
The permit VCAT granted was to ‘expire 5 years from the date of its issue, at which time the sign and all supporting structures must be removed and the site made good to the satisfaction of the Responsible Authority’.[15]
[15]APN Outdoor Pty Ltd v Melbourne City Council [2010] VCAT 1759, Appendix B.
Questions of law and leave to appeal
The application for leave to appeal and the merits of the appeal were heard together.[16] The appellant’s revised draft notice of appeal[17] contains some 22 questions of law and corresponding grounds of appeal. The appellant’s outline of written submissions narrowed these down to the following five questions:
(1)Whether upon a proper construction of the Planning and Environment Act 1987 and the planning scheme, the display of a sign is use or development of land.
(2)Whether upon a proper construction of the Act and the planning scheme, the Tribunal erred in law in finding that the display of a sign is a development of land.
(3)Whether the use and development of the land described in the permit complied with the requirements of the planning scheme.
(4)Whether upon a proper construction of section 6(3) of the Act, the section applies to the display of a sign.
(5)Whether upon a proper construction of clause 63 of the planning scheme, an existing use right could accrue in respect of the display of a sign.
[16]Order of the Honourable Justice Emerton made 24 February 2011.
[17]Filed 29 March 2011.
I am satisfied that the appeal raises questions of law and that VCAT’s decision was attended by sufficient doubt to warrant leave to appeal.
I therefore grant leave to appeal on the five grounds listed above.
The appellant’s basic position
The appellant contends that at the approval date, being the date the relevant parts of the Scheme came into force, it was lawfully ‘using’ the land and the sign for ‘inanimate outdoor advertising’.[18] It therefore contends that it has acquired existing use rights pursuant to s 6(3)(b) of the Act and cl 63 of the Scheme which allow the appellant to continue that use indefinitely.
[18]Transcript, 13.
The legislation
Section 3 of the Act relevantly provides:
building includes –
(a)a structure and part of a building or a structure; and
(b)fences, walls, out-buildings, service installations and other appurtenances of a building; and
(c)a boat or a pontoon which is permanently moored or fixed to land; …
development includes—
(a)the construction or exterior alteration or exterior decoration of a building; and
(b)the demolition or removal of a building or works; and
(c)the construction or carrying out of works; and
(d)the subdivision or consolidation of land, including buildings or airspace; and
(e)the placing or relocation of a building or works on land; and
(f)the construction or putting up for display of signs or hoardings;
…
use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed; …
Section 6 relevantly provides:
6 What can a planning scheme provide for?
(1) A planning scheme for an area—
…
(b)may make any provision which relates to the use, development, protection or conservation of any land in the area.
…
(2)Without limiting subsection (1), a planning scheme may—
…
(b)regulate or prohibit the use or development of any land;
…
(3)Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall—
(a)prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or
(b)prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or
(c)prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d)prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or
(e)require the removal or alteration of any lawfully constructed building or works.
Clause 63 of the Scheme relevantly provides:
63.01 Extent of existing use rights
An existing use right is established in relation to use of land under this scheme if any of the following apply:
•The use was lawfully carried out immediately before the approval date.
…
The approval date is defined in cl 72 of the Scheme as the date the Scheme began, or the date of notice in the Victoria Government Gazette of approval of an amendment to the Scheme. It appears that the relevant amendments took effect from 15 September 2008 and that this was the approval date.[19] In any case, the precise date is immaterial to the questions at hand because it is not disputed that the sign in question was constructed and displayed well before the approval date.
[19]Transcript, 167, 169 and 172. (Niall)
The Tribunal erred in law
The Tribunal decided that the display of a sign (of any description) must be regarded as ‘development’ for the purposes of the Act and the planning schemes made under it; that, therefore, such display could not be regarded as ‘use’ for those purposes; and that, therefore, no existing use rights can accrue under the Act or under the planning schemes in respect of signs.
In my view, the Tribunal erred in its construction of the legislation. It gave too much weight to the provisions of the planning schemes and too little to the language of the Act itself. For reasons I will explain, I consider that the display of a sign may amount to ‘use’; and that existing use rights can therefore accrue in respect of the display of signs, at least in some circumstances.
The proper approach
Counsel for both parties accepted that the structure and wording of the Scheme can not affect or change the true construction of the Act.[20] The respondent effectively acknowledged that the Tribunal did not fully adhere to this approach.[21] Indeed, much of the Tribunal’s reasoning as to the proper construction of the Act was based on its interpretation of the meaning and intent of the current provisions of the Melbourne Planning Scheme relating to signs. This was plainly erroneous.[22] So, with respect, I will not address the Tribunal’s reasoning in any detail.
[20]Transcript, 15 and 50 (Gobbo), 144 (Niall); Respondent’s written submissions, [38]; Appellant’s written submissions, [34].
[21]Transcript, 186-187 (Niall).
[22]See Maroondah City Council v Fletcher [2009] VSCA 250, [63] and [77]; See also the numerous cases cited in D C Pearce and R S Geddes Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [3.41].
The respondent’s position
In supporting the Tribunal’s conclusion and orders, if not its legal reasoning, the respondent contends that the display of any sign is development and not use within the meaning of the Act. It contends that a sign is a distinct and unified concept contemplated by the Act and that there is no distinction between the construction of the sign’s supporting structure and the use of the structure to display an advertisement or message. As the whole concept of a sign comes under the purview of development, there is therefore no statutory intent to extend the protection of existing use rights to signs, according to the respondent.
The respondent asked the Court to accept three basic propositions.[23]
[23]Transcript, 120.
First, the respondent submitted that the Act uses the terms ‘development’ and ‘use’ disjunctively.[24] They are two distinct concepts with no overlap between them. The ongoing display of a sign after it has been erected must therefore be either development or use but cannot be both at the same time. This was common ground between the parties,[25] and I agree that it is correct.[26]
[24]Transcript, 116.
[25]Transcript, 116 (Niall) and 195 (Gobbo).
[26]See the discussion in Mrocki v Port Philip City Council [2007] VCAT 1719; Sorrento Apartments Pty Ltd v Mornington Peninsula Shire Council [2001] VSC 302, [17].
Second, the respondent submitted that the concept of use refers to the purpose for which a development is used and not to the physical structure of the thing developed itself. I also accept this proposition.[27]
[27]See eg, Central Highlands Water v Ballarat City Council (No 1) [2006] VCAT 1297, [10] (Morris J).
Third, the respondent submitted that existing use rights protect only use, and do not protect the underlying building. Strictly speaking, this may be correct. However s 6(3)(e) provides independent protection against the removal or alteration of any lawfully constructed building or works. Moreover, I take leave to doubt that a planning scheme could validly be amended with the purpose or effect of requiring that a building necessary for the continuation of the relevant use be demolished where it has not significantly fallen into disrepair.
In any event, even if all three of these propositions are correct, it does not follow that the display of a sign cannot be ‘use’ within the meaning of the Act.
The Act does not remove signs from the concept of ‘building’
I do not accept the respondent’s submission that the Act intentionally accords signs a lower level of protection than other buildings.
The respondent submitted that the purpose of paragraph (f) of the definition of ‘development’ in s 3 of the Act is to create a distinct concept of a ‘sign’ which is neither a ‘building’ nor ‘works’.[28]
[28]Transcript, 111, 123, 177–179.
I do not accept that submission.
The statutory definition of ‘building’
As indicated above, ‘building’ includes a ‘a structure and part of a building or a structure’.
In my opinion, signs can clearly be structures and therefore buildings within the meaning of the Act, especially where they are elaborate and self-supported. The sign in the present case is a good example. The Tribunal did not expressly deal with this point, but in my view it would not have been open to the Tribunal to hold that the appellant’s sign was not a structure and therefore not a building.
In O’Brien v Shire of Rosedale,[29] Gillard J identified three characteristics which are associated with a structure in its ordinary meaning. First, it is the product of the assembly of a number of component parts to produce some thing which is different from those parts and which is of practical value. Second, this thing is commonly attached to the land on which it is erected, but this is not a necessary characteristic. Third, it has a degree of permanence.
[29][1969] VR 112.
In Aquatec-Maxcon Pty Ltd v Barwon Region Water Authority,[30] Byrne J agreed with the characteristics identified by Gillard J and added that:
In ordinary usage, “structure” has a wider meaning than “building”. The express inclusion of “structure” within the statutory meaning of building must therefore serve to enlarge the meaning of “building” … To put the matter another way, in normal speech, every building falls within the meaning of structure. To read down structure in the definition so that it has no wider meaning than building, has the consequence that the word “structure” contributes nothing to the definition at all.
[30][2006] VSC 117.
Although these two decisions were considering the word ‘structure’ in different legislative contexts, they both found the word to have its ordinary meaning. I see nothing to suggest that ‘structure’ does not have its ordinary meaning in the context of this Act. I therefore find those decisions to be of significant assistance.
In Poohawk Pty Ltd v Glen Eira City Council,[31] Member Martin reviewed these and other cases in the context of this Act. The Member also came to the conclusion that a ‘structure’ need not be in the nature of a ‘building’. He considered that ‘there are no “black and white rules” whether or not an item constitutes a structure, but this is a mixed question of fact and law which will turn on each set of circumstances in question’.[32] He noted that in other cases, VCAT has taken ‘an expansive rather than a narrow interpretative approach to what constitutes a “structure”’, and that it had been found to include poles erected to support tennis court lights, a cooling tower outside a factory building, and a boom gate.[33] In Poohawk, the Member held that 6 metre high cantilever storage racks used to store timber at a nursery constituted a ‘structure’.
[31][2006] VCAT 2477.
[32]Ibid, [65].
[33]Ibid, [68(c)].
In addition to the three characteristics identified by Gillard J, Member Martin also considered the degree of difficulty in erecting and dismantling the racks, the height and bulk of the racks and the residential and commercial context of the area.[34]
[34]Ibid, [68].
In Gawler & Barossa Jockey Club Inc,[35] a jockey club sought to raise revenue through advertising. The club erected signs consisting of frames mounted on trailers which could be towed to different parts of its racecourse. The Full Court of the Supreme Court of South Australia found that the advertising trailers were structures. The Court said that the word structure ‘refers to that which has been constructed and is capable of connoting a wide range of objects’.[36] The Court found that a structure need not be in the nature of a building and included structures which are moveable as well as those which are fixed to land.[37]
[35]Gawler & Barossa Jockey Club Inc v Corporation of the Town of Gawler (1995) 64 SASR 598.
[36]Ibid, 601 (Debelle J with whom Doyle CJ and Bollen J agreed).
[37]Ibid.
Subject to the argument of the respondent next mentioned, it seems clear to me, in light of these previous decisions, that the sign in this case must be a structure within the meaning of the Act. The sign is clearly an assembly of component parts which has produced something of practical value. The sign is quite firmly affixed to the roof of the office block on which it stands. Given the position and very large bulk of the sign, I would imagine that some sort of specialised equipment would be required to erect or dismantle it. Having stood there for over 15 years, there is no denying that it has the required degree of permanence.
The interaction between the statutory definitions of ‘development’ and ‘building’
The respondent submits that the sign in question does not fall within the category of a ‘structure’ because of paragraph (f) of the definition of ‘development’.[38] If a sign were a structure, and therefore a building, the respondent submits that paragraph (f) would be otiose.[39] The purpose of paragraph (f) must therefore be to remove a sign from the category of a ‘building’ and create a distinct concept of a ‘sign’.
[38]Transcript 122.
[39]Ibid.
I do not accept the submission. In my view, the purpose of paragraph (f) is not to create a new and distinct concept of a ‘sign’. Its purpose is to make clear that ‘development’ includes the construction or putting up of any type of sign where there otherwise may be doubt.
First, paragraph (f) ensures that no matter what form signs may take, planning schemes will be able to regulate their being put up. Although a large panel sign such as the subject of this proceeding easily fits the description of a ‘structure’, there are many types of sign which could not readily be described as a building or a structure. For example, some signs are painted directly onto the side of existing buildings or walls. Some signs are printed on paper or fabric which is affixed to a pre-existing surface. Some signs are loaded onto a trailer or vehicle and not affixed to the ground at all. Some signs take the form of banners or flags that are strung from trees or poles. Some signs can take the form of light projected onto a surface. An advertisement might even be mown into the grass on a field with the intention that it be seen by passengers in aircraft landing at a nearby airport. The ingenuity of advertisers and businesses will no doubt continue to find more and more ways to display advertising messages. The purpose of paragraph (f) is to ensure that signs of all types and forms can be regulated.
Second, by including the putting up of a sign under the definition of ‘development’, paragraph (f) makes clear that councils can regulate the putting up of signs even where they are ancillary to a business lawfully being conducted on the same site and could not be regulated as a separate use of land.
Finally, if Parliament had intended that a large panel sign, which in ordinary language would clearly be called a structure, should not be a ‘structure’ for the purposes of the Act, one would have expected that to be expressed in the Act. The respondent could not point to anything in the Act, other than paragraph (f) itself, which indicated such an intention.
The Act does not intend to deny existing use rights to all signs
The term ‘sign’ does not appear anywhere in the Act other than in paragraph (f) of the definition of ‘development’. If the Act intended to deny existing use rights in respect of all signs, one would have expected to see that intention more clearly expressed. This is especially so in light of the history of town planning legislation. As counsel for the appellant submitted,[40] the Town and Country Planning Act 1961, which preceded the current Act, provided for planning schemes to regulate the ‘construction erection and use of advertising signs or hoardings’.[41] Had Parliament intended to create a new and unified concept of a ‘sign’ and to remove it from the protection of s 6(3), one would have expected to see, for example, an express provision providing that s 6(3) does not apply to signs, or that a ‘sign’ is not a ‘building’ within the meaning of the Act. One might also have expected to see some reference to this quite significant change in the extrinsic materials. Although no Hansard extracts or explanatory memoranda were put before me, counsel for the appellant submitted from the Bar table that there was no such reference.[42] Counsel for the respondent did not contradict this submission.
[40]Transcript, 198–200.
[41]Third Schedule, s 5 (my emphasis).
[42]Transcript, 199.
The Act uses the term ‘development’ in an active sense and not as a concrete noun. The Act regulates the ‘development of land’, in other words, the doing of some action to the land or upon the land. At no point does the Act speak of ‘a development’ or ‘developments’. Although in everyday parlance the word ‘development’ is often used to refer to the concrete product of the doing of some action to or upon land, that is not the sense in which the Act uses the word. Similarly, the Act uses the terms ‘a building’ and ‘works’ purely as concrete nouns and never refers to ‘building’ or ‘work’ as activities. The Act distinguishes between the action and the concrete product of that action by using the term ‘development’ to refer exclusively to action and concrete nouns such as ‘a building’ and ‘works’ to refer to the product of that activity.
More particularly, the examples in sub-paragraphs (a) to (e) in the inclusive definition of ‘development’ all refer to some sort of action or activity that produces some sort of change. The focus in those sub-paragraphs is not on the building, works or land that are the subject of the change but on the process of effecting the change. They do not refer to the ongoing existence or use or continuation of that change once it has been effected. In that context, it would be rather odd if sub-paragraph (f) referred not only to the process of constructing or putting up a sign but also to the ongoing existence of the sign as it displayed its message.
Moreover, the Act contemplates that use ordinarily follows development. This is evident from the definition of use which ‘includes use or proposed use for the purpose for which the land has been or is being or may be developed’.[43] Land is not developed for the sake of development but is developed for use. There is nothing in the Act indicating that this ordinary progression from development to use does not apply to signs.
[43]Section 3.
Finally, and in my opinion significantly, paragraph (f) refers not merely to the display of signs but to ‘the construction or putting up for display’. It is well accepted that all words in a legislative provision are presumed to have some meaning or effect.[44] The words ‘construction or putting up’ cannot be ignored. Those words evince a distinction between the original erection of a sign and its ongoing display. It is clear, in my opinion, that only the original construction or putting up of a sign constitutes development.
[44]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382. For further authority see the plethora of cases cited in D C Pearce and R S Geddes Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [2.26].
Display of a sign can be ‘use’ of land
If, as I would hold, ‘development’ goes no further than the original construction or putting up of a sign, then, in my opinion, there is nothing in the definition of ‘development’ in the Act that would preclude the ongoing display of advertisements or messages on a sign from constituting ‘use’ within the meaning of the Act.
The respondent submits that there is no distinction between the initial construction of a sign and its ongoing display.[45] Relying on the decision of Morris J in Central Highlands Water,[46] the respondent submitted that there can be no ‘use’ of land or a building unless there is some activity, process or transaction being carried on.[47] The respondent submitted that all activity in relation to signs ends once the sign is constructed.[48] The respondent submits that once erected, a sign is used for no other purpose than passive observation, and that display of the sign is therefore nothing more than a consequence of its construction and not a distinct activity, process or transaction.[49] The respondent further submits that once a sign is erected, there is no further activity to be regulated.[50]
[45]Respondent’s written submissions, [34].
[46]Central Highlands Water v Ballarat City Council (No 1) [2006] VCAT 1297, [13] (Morris J).
[47]Transcript, 130.
[48]Transcript, 131.
[49]Respondent’s written submissions, [18]–[20]; Transcript, 113.
[50]Respondent’s written submissions, [18].
I reject this submission for three reasons. First, I consider that there can be a use of land even in the absence of some activity, process or transaction. Second, I consider that, in some cases at least, the display of a sign will involve some activity, process or transaction being carried on. Third, I consider that there will, at least in some cases, be further activity to be regulated in relation to the ongoing display of a sign.
Use does not necessarily require that some activity, process or transaction be carried on
The Act defines ‘use’ to include ‘use or proposed use for the purpose for which the land has been or is being or may be developed’.[51] The focus of the term ‘use’ is on the application of land to some purpose.
[51]Section 3(1).
The meaning of the word ‘use’ must of course depend on its legislative context. As the Act has defined ‘use’ broadly and inclusively, the word must be given its natural and ordinary meaning (at least). Cases considering the concept of use of land in other legislative contexts are of significant assistance.
It is well established that the word ‘use’ is one of wide import.[52] It is also established that ‘[i]n the town planning field, statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows.’[53]
[52]Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493, 515; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633, 637; Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] NSWSC 487, [21] and cases discussed therein.
[53]Parramatta City Council v Brickworks Limited (1972) 128 CLR 1, 25; City of Nunawading v Harrington [1985] VR 641, 645 and cases cited therein.
A long series of authorities considering the concept of ‘use’ of land in a variety of contexts has established that use of land is not limited to physical use. [54] In an oft-quoted passage in Newcastle City Council v Royal Newcastle Hospital,[55] Taylor J expressed the width of the concept:
The word “used” is, of course, a word of wide import and its meaning in any particular case will depend to a great extent upon the context in which it is employed. The uses to which property of any description may be put are manifold and what will constitute “use” will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s 132 itself shows plainly enough that the “use” of land will vary with the purpose for which it has been acquired and to which it has been devoted. It may be used for a public cemetery, for a common, for a public reserve, in connexion with a church or school and so on. Each of the forms of user referred to in the section relate to use by the owner and some of them, no doubt, contemplate a use which is synonymous with actual physical occupation and enjoyment. Others contemplate a use in a less direct form. But where an exemption is prescribed by reference to use for a purpose or purposes it is sufficient, in my opinion, if it be shown that the land in question has been wholly devoted to that purpose even though, the fulfilment of the purpose does not require the immediate physical use of every part of the land.
[54]Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 (Taylor J); Parramatta City Council v Brickworks Limited (1972) 128 CLR 1, 21 (Gibbs J); Eaton & Sons Pty Ltd v Warringah Sire Council (1972) 129 CLR 270, 273–274 (Barwick CJ), 286–287 (Stephen J) Smith v Shire of Murray (1985) 54 LGRA 246, 249 (Heenan DCJ); Leeming v City of Port Adelaide (1987) 45 SASR 506,513; City of Nunawading v Harrington [1985] VR 641, 645.
[55](1957) 96 CLR 493, 515.
In that case, an area of around 200 acres of land around a hospital was left in its virgin state and no activity was conducted on it. The land had been acquired by the hospital to keep the atmosphere clear and unpolluted, to act as a buffer against the approach of new factories and houses and to provide quiet and serene surroundings for the patients. The High Court found that the land was ‘used’ for the purpose of a hospital despite the lack of physical activity on such a large area. The Privy Council upheld the decision and added:[56]
An owner can use land by keeping it in its virgin state for his own special purposes. An owner of a powder magazine or a rifle range uses the land he had acquired nearby for the purpose of ensuring safety even though he never sets foot on it. The owner of an island uses it for the purposes of a bird sanctuary even though he does nothing on it, except prevent people building there or disturbing the birds. In the same way this hospital gets, and purposely gets, fresh air, peace and quiet, which are no mean advantages to it and its patients. True it is that the hospital would get the same advantages if the land were owned by the Crown or by a trust which had determined to keep it in a natural state, or by an owner who was under a restrictive covenant not to build on the land. But the advantages then would be fortuitous or at any rate outside the control of the hospital. Here they are intended, and that makes all the difference.
[56]Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1, 4.
In Eaton & Sons Pty Ltd v Warringah Shire Council, Stephen J emphasised ‘the importance of a proper appreciation of the particular nature of the use claimed when determining whether land has in fact been used for that purpose at a particular time’.[57] Discussing Royal Newcastle Hospital, Stephen J said that ‘the particular use claimed will be of great significance in determining whether or not apparently unused land is in fact being used…Once this rather special use is appreciated it is seen that all of this land was being used passively by the hospital.’ [58] His Honour then continued: [59]
Likewise, what may appear at first sight to be only an infrequent and intermittent use … may, once the purpose of use is properly identified and understood, be seen to be a continuous use …
So too a particular type of business may have inherently fluctuating demands for space and may only occasionally physically use the whole of its site for the purposes of its business, yet it cannot be doubted that in that state of facts the whole site is used for the purpose of that particular business at all times.
[57](1972) 129 CLR 270, 289.
[58]Ibid, 287.
[59]Ibid.
In Commissioner of Taxation v Christie[60] a large parcel of land adjoined a taxpayer’s house. The land was virgin bushland and little physical use was made of it. The owner of the land had been on it half a dozen times in 20 years. He did however spend much of his day on the verandah viewing the land and admiring its beauty. The NSW Court of Appeal held that the land was used as a dwelling house:[61]
Land takes a wide variety of forms. In general it may be said that land is used and occupied in a legal sense if it is used and occupied according to its nature. An owner can use land by keeping it in its virgin state for his own special purposes.
[60](1973) 4 ATR 177.
[61]Ibid, 186.
The clear thrust of these cases is that the level of activity required to constitute ‘use’ of land depends on the purpose to which the land is being put. The concept of ‘use’ requires only so much physical activity as is necessary to fulfil the purpose being served, whether that be frequent activity, intermittent activity, or no activity at all.
In this case, the land in question is being applied to the purpose of displaying advertising messages to the public. That is a real and valuable purpose. Although, as submitted by the respondent, there may be little physical activity beyond what is required to put up the advertisements, change them periodically, keep up the illumination (perhaps by replacing burnt out light sources) and maintain the supporting structure, that small amount of activity is sufficient to fulfil the purpose to which the appellant has decided to put the land. The appellant is deriving the full benefit of the purpose to which it has chosen to apply its land. That, in my opinion, may very well be sufficient to establish ‘use’ within the meaning of s 6(3) of the Act.
The display of an advertisement involves a process
Relying on the comments of Morris J in Central Highlands Water,[62] the respondent submitted that ‘the phrase is “use of land” and focuses on an activity that occurs on the subject land and relates to the whole of the land’.[63] With respect, that is not an accurate summary what Morris J said. His Honour spoke not solely about activity but about an activity, process or transaction. The concept of a process or transaction need not necessarily involve visible physical movement.
[62]Central Highlands Water v Ballarat City Council (No 1) [2006] VCAT 1297, [13].
[63]Respondent’s written submissions, [17].
In my opinion, the display of an advertising sign does involve a process. The process is the transmission of a message or information to passers-by. The respondent submitted that a sign is analogous to external decoration of a building in that it involves only passive observation:
An external decoration or architectural feature may be observed or enjoyed and may confer on a building a status or make it stand out. However, those qualities do not constitute a separate use of the building, they are simply a consequence of the form of development. The Act does not contemplate that the passive observation of a development would itself be a use and subject to its own regulation.[64]
[64]Respondent’s written submissions, [19].
In my opinion, this analogy is inappropriate. An advertising sign on the roof of an office building is not erected to decorate the building or make it aesthetically appealing. Its purpose is not to enhance the use of the building as an office block. A sign is constructed with its own distinct and specific purpose. It is also inaccurate to speak of ‘passive observation’ of an advertising sign. An advertising sign is deliberately made to look a particular way in order to communicate specific information. The observer is not merely admiring the aesthetic look of the sign but is receiving and digesting information and, the advertiser hopes, using that information to influence their beliefs, behaviour or purchasing choices. That is a very different process from the mere observation or admiration of a pretty house.
That is not to say that communication of information is necessarily required. One can imagine a situation, for example, where large sculptures or works of art are passively observed and admired from some distance. One often sees in Victoria large sculptures erected beside freeways and highways. In my opinion, it could be said that the land on which those sculptures stand are used to display artwork.
Previous decisions on point
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, Murphy J observed[65] 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’.[66] His Honour went on to say that ‘advertisements commonly seen on hoardings or walls or atop buildings or on the sides of bridges might well be considered as a use of land for the purpose of advertising’.[67] Contrary to the respondent’s submission, in my opinion there is nothing in the legislative changes that have occurred since Clare was decided that render these observations of Murphy J less helpful in the present context.
[65]Obiter.
[66][1981] VR 758, 762.
[67]Ibid.
In KT Corporation Pty Ltd v Queensland Government Department of Main Roads[68] the Supreme Court of Queensland Planning and Environment Court was examining whether a development permit to erect a large advertising sign had expired. An old sign had been partially dismantled but a new sign had not been erected for over twelve months due to a dispute with the Council. The legislation provided that the permit expired where ‘a use of any premises established pursuant to the permit has ceased for a period of at least twelve months’. The Court held that the use of the land for the display of billboards had not ceased and that the landowner enjoyed existing use rights.
[68][2005] QPELR 28.
In Claude Neon Ltd v City of Perth Kennedy J held that commercial advertising which advertises businesses other than such as are carried 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.[69]
[69](Unreported, Supreme Court of Western Australia, Kennedy J, 31 July 1987), BC8700740 at 16.
In City of Kensington v Claude Neon Ltd,[70] an advertising sign had stood on the roof of a hotel for many years. The owners contracted with new advertisers and wished to replace the entire hoarding. Jacobs J held that the hotel owners enjoyed existing use rights to display advertising signs on their roof:[71]
The land and the hotel building thereon have been used, inter alia, for the purpose of advertising by means of a sky-sign, and they do not cease to be so used by reason only of some change in the format of the sign.
[70](1979) 22 SASR 91.
[71]Ibid, 99.
In Claude Neon Ltd v City of Prospect the South Australian Planning Appeal Tribunal held that existing use rights enabled the owners of a billboard to replace it with a rotating trivision sign:
It is a trivision sign instead of a panel sign, but the use purpose is and remains the same, namely the use of land for the purpose of advertising. In our opinion, there is no change in the essential nature of the existing use.[72]
[72](1984) 12 APA 470, 474.
In Gawler & Barossa Jockey Club Inc, the Full Court of the Supreme Court of South Australia held that the placing of advertising frames mounted on trailers on a racecourse for an indefinite period was a use of the land for that purpose. [73]
[73]Gawler & Barossa Jockey Club Inc v Corporation of the Town of Gawler (1995) 64 SASR 598, 600.
Of course, none of these decisions bind this Court in relation to the present dispute. They are however helpful in that they illustrate that it is widely accepted that the display of advertising signs can constitute ‘use’ of land as that term is commonly understood in the context of town planning.[74]
The use of signs can be regulated
[74]See also the two decisions with which the Tribunal disagreed, namely Hall 10 AATR 68 at 78-79 and Papas (1998) 1 VPR 76 at 82-84.
The respondent submitted that once a sign is erected, there is no further activity to be regulated. It submits that if a person is given permission to erect a sign, it adds nothing for them to be told they can also display the sign.[75]
[75]Ibid, [34].
I reject this submission. There are many aspects of display of a sign that remain to be regulated after it has been put up. These may include the length of time that the sign may remain in place or the type of messages that may be displayed. Not all signs are static panel signs such as the sign the subject of these proceedings. Other signs may have more aspects that can be regulated. Such regulation may not fit easily under the description of regulating ‘development’ because the features being regulated may not involve any physical adjustment to the sign itself. For example, if a sign is illuminated, neon or electronic, there may be limits on its brightness or illumination during certain hours of the day. If a sign is moving or animated, a council may wish to regulate its prominence by limiting the speed of movement or prohibiting flashing or other effects, despite the sign being physically capable of producing such effects. These are just some examples and there are no doubt many other ways in which the way that a sign is used can be regulated.
The alleged non-permanency of signs
The respondent submitted that the consequence of the appellant’s argument is that once a sign is erected, no change in the planning scheme can ever prevent its continued display.[76] The respondent submitted that it would be incongruous that signs should have a permanency that would attach to buildings because signs are inherently the sort of thing that one would expect planning schemes to regulate from time to time as land uses change.[77]
[76]Transcript, 108.
[77]Transcript, 110 and 132.
I can see no reason why a structure used for advertising should be accorded any lesser protection than any other building used for other purposes. It is certainly understandable that the drafters of a planning scheme would wish, for example, to bring to an end a large billboard in an area that was becoming increasingly residential. However, that could equally be said about a building used as a factory or industrial site or a noisy music or entertainment venue. Nor is billboard advertising necessarily a transitory or short-term enterprise. The sign in question has been in place since 1995 and replaced a similar sign that was constructed in 1981. The site in question has been used for the purpose of advertising for around 30 years. That may exceed the duration of particular uses of other buildings. The use of a structure such as the subject sign for advertising may be far more valuable and generate greater income than other types of building use. I can see no inherent characteristic of advertising that requires a greater level of regulation than other building uses.
This is not to say a planning scheme is unable to limit the duration of an advertising sign. It is open for a council to set an expiry date on a development or use permit. The predecessor of the respondent chose not to do so. That is no reason to deprive owners of a sign of the existing use rights afforded to every other building owner.
Is the display of each new advertisement further ‘development’?
The respondent contends that every change of advertisement on an established sign represents fresh ‘development’ and requires a permit. At least, that is the submission made by its counsel before this Court. It does not appear to have been made before VCAT. Nor does it accord with the practice of the respondent over the last 17 years or so in relation to the sign in question. The permit issued in 1995 for the sign merely required that the owner obtain written consent from the respondent for each new advertisement. Such a process bears no resemblance to the elaborate process required by s 48 and the subsequent provisions of the Act for obtaining a permit. However, as the appellant submitted, the definition of development refers to the construction or putting up for display of signs or hoardings. Sign is not defined in the Act, but in ordinary parlance the sign is what is put up at the outset. Although the definition of ‘sign’ in the Melbourne Planning Scheme cannot control the meaning of the word in the Act, it is perhaps worth noting that sign is there defined as ‘an advertisement and any structure built specifically to support it’. If the meaning in the Act is the same, then the putting up for display of the sign is the putting up for display of the structure and the advertisement and that represents development. The owner might need another permit to put up another structure plus advertisement. However, if the owner is merely changing the advertisement, the owner is not changing the sign. The owner is not putting up for display a sign. The owner is merely putting up an advertisement, which does not represent development.[78] The ‘purpose’ element in s 6(3)(f) is limited to the purpose of facilitating display as distinct from display itself.
[78]Transcript, 195 (Gobbo).
‘Use’ of what?
The appellant’s sign is erected on the roof of an office block. Because of the existence of the office block, the appellant does not suggest that s 6(3)(a) is applicable. The appellant relies, rather, on s 6(3)(b) on the basis that the sign and its supporting paraphernalia represent a structure and therefore a building. In my view, the Tribunal erred in law by excluding this possibility on the basis of its overall construction of the legislation. However, in the end it was common ground that it would not be appropriate for this Court to step into the shoes of the Tribunal and to make a determination as to whether in this particular case the sign and its supporting infrastructure represent a building within the meaning of s 6(3)(b). Ultimately, this is a question of fact to be determined by the Tribunal.
The appellant also says that the ongoing display of advertisements on or by means of the sign represents a use of the stratum of land constituted by the roof of the office block which it leases. It makes this submission by reference to cl 63 of the Melbourne Planning Scheme. Once again, I consider that the Tribunal erred in law when it rejected this possibility by reference to its overall construction of the legislation. However, once again, it is agreed that the final decision on whether the ongoing display of advertisements from this particular installation represents a use of the stratum of land constituted by the roof of the office block is a matter for VCAT. Again, questions of fact may yet arise.
Further, there was some desultory suggestion by the respondent that cl 63 may have been, in effect, impliedly repealed insofar as it might otherwise apply to the sites covered by the relevant amendments to the Melbourne Planning Scheme, including the incorporated document. This matter was merely touched on before me. It would not be appropriate for me to express any views on it. If the respondent wishes to pursue it, the proper place is before VCAT on the re-hearing of the relevant proceedings there.
Further again, there may be a need to explore the precise extent of any existing use rights that the appellant may have, and this also may require factual investigation.
Conclusions and orders
The appellant’s appeal is against VCAT’s orders numbered 1 and 2 only. It has not appealed against the grant of the five year extension. Of course, its fundamental contention is that it needs no extension.
It follows from what I have said above that paragraphs 1 and 2 of the Tribunal’s order must be set aside. Both orders are vitiated by the Tribunal’s misconstruction of the Act, that is to say by the Tribunal’s holding that the ongoing display of a sign can only be the development (or part of the development) of land, and can never be “use”. It remains for the Tribunal to re-hear and re-determine according to law the appellant’s applications numbered P 2299/2009 and P 2300/2009. I will simply order that leave to appeal be granted, the appeal be allowed, paragraphs 1 and 2 of the Tribunal’s order dated 4 November 2010 be set aside and that applications P 2299/2009 and P 2300/2009 be remitted to the Tribunal to be heard and decided again in accordance with this Court’s reasons for judgment.
Subject to any submissions to the contrary, I would direct that the parties be at liberty to lead such further evidence before the Tribunal as they may see fit. At present I cannot see any justification for requiring the Tribunal to be re-constituted, but I will hear the parties on that question also if they desire.
I will also hear the parties on the question of costs.
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