Bartulovic and City Of Stirling
[2009] WASAT 173
•8 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BARTULOVIC and CITY OF STIRLING [2009] WASAT 173
MEMBER: MR J JORDAN (MEMBER)
HEARD: 14 JULY 2009
DELIVERED : 8 SEPTEMBER 2009
FILE NO/S: DR 43 of 2009
BETWEEN: DENNIS JOHN BARTULOVIC
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development application Refurbishment of office building approved Refurbishment included rectangular structure screening equipment on roof A 'created roof sign' on two faces of screening structure approved as part of sign strategy 'Created roof sign' facing northeast not approved Previously threefaced structure on roof Previous licences found for two rooftop signs on previous roof structure Size of proposed sign - Advertising sign provisions in Schedule of local planning scheme Objectives of sign provisions Signs on other buildings to northeast of the building Whether proliferation of signs Impact on amenity of surrounding land and street
Legislation:
Planning and Development Act 2005 (WA)
City of Stirling District Planning Scheme No 2, cl 1.0, cl 1.3.5.1(f)(xiv), cl 1.3.5.4, cl 2.0, cl 2.2.2, cl 3, cl 3.4, cl 3.4(b), cl 4.0, cl 5.0, cl 5.1.1, cl 5.1.3, cl 6.1, Sch 11, Table 11.1
Result:
The application for review is dismissed
The decision of the respondent dated 28 November 2008 is affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr C Leigh (Town Planner)
Solicitors:
Applicant: Self-represented
Respondent: City of Stirling
Case(s) referred to in decision(s):
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of a refusal by the City of Stirling to approve a 44.95 square metre sign called a 'created roof sign' facing north-east as part of a sign strategy for the building at 428 Scarborough Beach Road, corner Hutton Street, Osborne Park. In 2007, the City of Stirling approved the refurbishment of the existing office and showroom building with a condition that required a separate signage strategy to be submitted for approval.
The application then made for approval of a sign strategy included three created roof signs on a structure projecting above the eaves of the building to screen rooftop plant and equipment. The City of Stirling, in granting approval to the sign strategy, only approved two of the created roof signs, refusing the third sign facing northeast along Hutton Street. The City of Stirling was concerned that the proposed north-east facing sign would constitute a proliferation of signage on the site and be injurious to visual amenity and streetscape.
The applicant said that the refused sign was replacing a north‑east facing rooftop sign on an above roof sign structure built in 1988. The original rooftop structure had been replaced by the structure enclosing the rooftop equipment and, overall, the additional sign would have no adverse impact on the local amenity.
The Tribunal did not consider this proposal to be merely a consideration of whether to approve the continuation of an existing sign. At the time of the building refurbishment there had not been an advertisement on the north‑east facing board since at least 2000. In addition, the proposed sign would be in a different location and would be greater in size than both the standard in the planning controls and any sign originally facing north-east.
The Tribunal concluded that the impact of a created roof sign of the size proposed would be injurious to the local visual amenity and streetscape. This was because the proposed created roof sign would be larger than most other signs visible in the immediate locality in Hutton Street and would be on what would otherwise continue to be a section of blank wall.
The Tribunal found that the proposed north-east facing created roof sign would be inconsistent with the intent of the planning controls and related objectives for signs and therefore decided to dismiss the application.
Introduction
These proceedings involve an application brought by Mr Dennis Bartulovic (applicant) against the decision by the City of Stirling (Council or respondent) when approving a sign strategy not to approve the proposed north-east facing 'created roof sign' at No 428 (Lot 1) Scarborough Beach Road, corner Hutton Street, Osborne Park (site). A 'created roof sign' is defined in cl 2.2.2 of the City of Stirling District Planning Scheme No 2 (DPS 2) as:
Created Roof Sign means an advertisement sign which is affixed to:
(a)the fascia;
(b)the roof itself; or
(c)forms part of a projection above the eaves or ceiling;
of the building and complements the architectural style of the building, but does not include an above roof sign.
Background
In the late 1970s or early 1980s, on the site there was built a three storey building then used for offices and a bank. In about 1987, there was erected on the roof a triangular-shaped frame with an apex facing Scarborough Beach Road. On this frame were attached billboards for the purpose of above roof signs. One face of the rooftop structure was visible from the east in Scarborough Beach Road, another face was visible from the west in Scarborough Beach Road, and a panel on the third face was visible from Hutton Street to the north-east. Boards for signs on the three faces were each 36 square metres (12 metres long and 3 metres high). No records could be found by either party of development approvals or building licences for either the building or for the structure and billboards on the roof.
In March 1988, the respondent issued a 'licence to erect or maintain existing sign or hoarding'. This was in respect of '2 x illuminated roof signs' at the site. This was the only document issued by the respondent in respect of the original signs that either party could find.
In 1987, the then owner, Redstone Nominees Pty Ltd, as lessor, entered into a lease with Australian Posters Pty Ltd as lessee for the purpose of 'exhibiting advertising signs' on the roof and walls of the building on the site. That lease had attached a sketch, dated 10 September 1987, by Harry Schubert Architect which showed the triangular above roof signs structure. The lease made reference in [5] to the sum payable by the lessee to the lessor upon the lessee executing an enforceable lease agreement between the lessee and the lessee's customer '… in respect of the northern panel'.
This lease agreement was for five years, with an option for renewal for a further five years. The lease was renewed in 1992. In 1997, there was a further site lease agreement between the then owners and Australian Posters Pty Ltd. That lease referred at [6] to 'Three (3) 12.56m by 3.35m roof mounted illuminated structures'.
In March 2001, there was a further agreement between Dennis John Bartulovic and Outdoor Plus Pty Ltd in essentially the same terms as the 1997 agreement for three roof-mounted illuminated structures.
In 2007, the respondent granted approval to commence development for the refurbishment of the existing building. The applicant described this to the Tribunal as essentially stripping the building back to its structural elements and rebuilding it.
The letter, dated 2 July 2007, from the architect to the respondent in support of the application, listed major elements of the refurbishment which included:
…
(d)relocation of the air-conditioning plant to a screened rooftop enclosure …
The application letter also included the following:
The existing rooftop signage comprises a triangular-shaped structure currently supporting two billboard signs and one blank face. The proposal seeks to incorporate the signage structure into the building structure as a more integral element to provide three faces of billboard signage. This building element also provides a screening element for rooftop-mounted air-conditioning equipment.
The application plans, photographs of the completed building and the site visit revealed that the building now bears little resemblance to the previous building. It is still a three storey building but of contemporary materials and appearance. Relevant to the matter before the Tribunal is that added to the top of the building is a metal-clad screened rooftop enclosure concealing plant and equipment. This enclosure rises about 4 metres above the parapet of the building and extends for 13.6 metres of the 15 metre depth of the building and for 17 metres across the 29 metre width of the building. This screening structure is designed so that from the front it generally has the appearance of overlapping the façade and therefore being incorporated into the design of the building.
The development approval issued for the refurbishment by the respondent was subject to conditions which included:
…
7.A separate signage strategy to be submitted to the City for approval prior to the issue of any sign licences. In addition, all unauthorised signage on the site is to be removed.
The applicant then lodged with the respondent the application for the signage strategy which gave rise to the current application for review before the Tribunal.
Planning framework
The site is zoned 'General Industry' in DPS 2. Schedule 11, 'Advertising Sign Provisions' of DPS 2, states at cl 1.0:
The purpose of this Schedule is to ensure that the display of advertisements does not adversely impact on the amenity of surrounding land while providing appropriate exposure of activities or services.
Clause 5.0, 'Control of Advertisement Signs', of Sch 11 of DPS 2 states at cl 5.1.1:
In addition to the requirements of Council's signs, hoardings and billposting by-laws, the erection, placement or display of advertisement signs and the use of land or buildings for that purpose requires the prior approval of the Council …
At cl 2.0 of Sch 11, types of signs are defined. The definition of 'Created Roof Sign' was set out above under 'Introduction'. Also included at cl 2.0 of Sch 11 is the following:
2.2.1Above Roof Sign means an advertisement sign which protrudes above the normal roof line with little or no relation to the architectural design of the building, but does not include a Created Roof Sign.
It was common ground that the signs previously erected above the building were above roof signs, and the sign, the subject of the current application before the Tribunal, is a created roof sign.
In Table 11.1 - Sign Zoning Table - of DPS 2 within the 'General Industry' zone 'above roof' and 'created roof' signs on buildings have an 'SS' designation, which means that the sign type is not permitted '… unless a sign strategy, acceptable to the Council, for the whole site is submitted'.
Clause 5.1.3 of Sch 11 of DPS 2 includes the following:
… Without limiting the generality of matters which may be taken into account when making a decision upon such an application, the 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 surrounding locality including its historic or landscape significance and traffic safety.
Clause 6.1 of Sch 11 reads:
Continuance of existing advertisement signs
Advertisement signs which:
(a)are lawfully erected, placed or displayed prior to the approval of this Schedule, or
(b)may be erected, placed or displayed pursuant to a licence or other approval granted by the Council prior to the gazettal date of this Schedule;
(hereinafter in this clause referred to as 'existing advertisement signs') may, except as otherwise provided in the Scheme, continue to be displayed or to be erected in accordance with the appropriate licence or approval.
Clause 1.3.5.1(f)(xiv) of DPS 2 requires that, in considering an application for planning approval, it is necessary to have due regard to the preservation of the amenity of the locality relevant to the use or development, the subject of the application. Clause 1.3.5.4 of DPS 2 relates to the preservation of amenity and states:
The Council, having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenity of the locality, may refuse to grant its approval to an application to use or develop land.
Clause 3.4(b) of Sch 11 of DPS 2 provides that created roof signs over 9 metres from the ground shall comply with a maximum area of 9 square metres.
Clause 4.0 of Sch 11 of DPS 2 provides for standards to be varied, stating:
If it is established to the satisfaction of the Council that a particular standard or provision of Clause 3 of this Schedule is unreasonable or undesirable in the particular circumstances of the case, the Council may at its discretion vary the standard or provision subject to such conditions as it thinks fit. Applications for variation of standards shall include a sign strategy for the whole of the subject site.
The application and the Council's decision
The sign strategy, the subject of the application to the respondent for approval, included created roof signs on three of the faces of the new structure concealing the plant and equipment on the roof of the refurbished building. The signs would be on the north-western face, facing eastbound traffic on Scarborough Beach Road, the south-eastern face, facing westbound traffic on Scarborough Beach Road, and the north‑eastern face, which would be visible from along the alignment of Hutton Street. There would be no sign directly fronting Scarborough Beach Road. The signs would be floodlit for night-time viewing. Each of the three created roof signs would be on a 44.94 square metre panel, 12.66 metres long and 3.55 metres high.
The respondent issued an approval for the sign strategy on 28 November 2008 subject to conditions which included:
1.The proposed development complying with all details and amendments marked in red as shown on the approved plan, namely, the created roof billboard sign facing north-east is not approved and does not form part of this approval.
The applicant then lodged an application for review seeking to have the north-east facing created roof sign included in the approval.
Issue
Whether the proposed created roof sign facing north-east would constitute a proliferation of signage for the site and be injurious to the visual amenity and streetscape.
Discussion
The Tribunal conducted a view accompanied by Mr Bartulovic and Mr Leigh, a town planner, who appeared for, and was a witness for, the respondent. The Hutton Street streetscape was viewed from both adjacent to the site and from the north-east looking along Hutton Street towards the site. The view confirmed that, in Hutton Street, there was a mixture of old and new building with most set back from the verge with parking at the front. Most properties had a range of sign types.
Respective positions of the parties
Mr Leigh said the east and west facing created roof signs of the signage strategy were approved, consistent with cl 6.1 of Sch 11 of DPS 2, as they effectively replaced the former licensed above roof signs. He contested that the north-east facing billboard was ever approved. The proposed north‑east facing created roof sign was therefore assessed by the respondent against the amenity and streetscape objectives of DPS 2 as a new and additional sign.
Mr Leigh said various signs on Hutton Street were unauthorised and were likely to be removed so, in his submission, should not be considered in assessing the streetscape and local amenity. The relevant signs were not identified. Mr Leigh said that previously no authorised above roof signs on the site were visible when looking along Hutton Street toward the site. It would now be possible to see an angled view of the approved west facing created roof sign. The addition of the proposed additional sign would, in his opinion, result in a proliferation of signs and would detract from the streetscape. He referred to a dictionary definition of 'proliferation' as 'increase rapidly in number' which he said would be the result of approving the proposed sign.
The applicant said that the refurbished building on the site, which replaced the old substandard building, enhanced the streetscape. He acknowledged that there was no advertising on the north-east facing board after 2000, but the board had remained in place and the proposed created roof sign should be considered as replacing the previously existing, but deteriorating, above roof sign and structure. It was his submission that the original above roof signs must have been approved because all three were mentioned in the lease agreements with the advertisers and shown on the attached plans. The large above roof structure and advertising signs had been in place for 20 years with the Council's knowledge. The applicant said that the sign strategy would result in less signs on the building overall and was firmly of the opinion that the streetscape and amenity of Hutton Street would be enhanced.
Comment
The evidence of both parties was that their searches failed to find evidence of any planning approval or building licence for the above roof superstructure and billboards on the original building. There was produced, however, a copy of a sign licence issued in 1988 by the respondent for illuminated rooftop signs on the south-east and north-west facing billboards of the triangular structure.
The Tribunal has not found it possible on the evidence to determine whether the above roof structure was lawful. The comment might be made, however, that it is a reasonable assumption that it was lawful. The structure was large and prominent, with advertisements in place at least on two faces for over 20 years. It could not go unnoticed by the respondent over those 20 years. Consistent with this assumption is the issuing of licences for the south‑east and north‑west facing signs by the respondent.
Less certain is the background of advertisements on the former north‑east facing billboard on the above roof structure. Photographs provided show a blank board facing north-east. The applicant said there was an advertisement on the billboard up until about 2000. This was consistent with anecdotal comment in letters from two neighbouring business owners supplied by the applicant. There was also the evidence of lessees agreeing to make payment for the third board on the structure for the purpose of advertising.
The Tribunal does not consider this matter to be merely consideration of whether to approve the continuation of an existing sign. In this, the Tribunal considers the proposed sign should be approached differently from the respondent's approach when considering the two other created roof signs in the sign strategy. This is because, at the time of the building refurbishment, there was no existing advertisement on the north‑east facing billboard and there had not been since at least 2000. In addition, the size and location of the proposed created roof sign would be different from the above roof sign which might have originally faced north-east.
The applicant is seeking a sign of 44.9 square metres. The above roof sign that would have been in place would have been 36 square metres. Clause 3.4 of Sch 11 of DPS 2 refers to a maximum area of 9 square metres for a created roof sign in the location proposed. Clause 4.0 of Sch 11 of DPS 2 provides discretion to vary a sign standard if the standard in cl 3 is considered 'unreasonable or undesirable in the particular circumstances'. The question then is whether the variation required should be allowed in the circumstances. Clause 5.1.3 of Sch 11 of DPS 2 requires regard to be had to the character and amenity of the surrounding locality when considering an application.
DPS 2 does not include a definition of 'amenity'. Mr Leigh resorted to a dictionary definition of amenity that referred to the 'pleasantness' of a place, saying that this definition was his preference in assessing the proposal. With respect, the Tribunal considers the appropriate test for amenity associated with commercial buildings in the 'General Industry' zone in Osborne Park is that first enunciated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, which can be summarised as:
1.The determination of the objective character of an area which represents 'the present state of amenity'.
2.An assessment of the manner in which the proposed use may affect the existing amenity.
3.A conclusion as to the degree to which the proposed use may affect the existing amenity.
From the viewing of the site, the Tribunal found the view of the Hutton Street streetscape from north-east looking toward the site was characterised by a mixture of signs on a number of sites, including verge signs, wall signs, created roof signs and very few above roof signs.
The sign strategy approved by the respondent includes on the north‑west wall facing across Hutton Street and along the alignment of Scarborough Beach Road, three wall signs of 2,455 millimetres by 1,190 millimetres, which replace larger wall signs previously painted on this wall, plus the created roof sign.
Photographs of the original building show that previously there were no signs on the north-east elevation, which is the elevation that can be seen from along Hutton Street. The north-east elevation has approved, under the sign strategy, a ground floor wall sign of 3,825 millimetres by 1,200 millimetres and wall signs of 2,765 millimetres by 1,200 millimetres on each of the upper floors.
From a point diagonally opposite the site in Hutton Street, there would be visible six wall signs and one approved created roof sign. If allowed, the proposed sign would add one created roof sign to this view. From further to the north-east along Hutton Street looking toward the site, there would be visible the three wall signs on the north-east elevation where previously there were no wall signs, and to these would be the added proposed created roof sign. While this might not be the 'proliferation' feared by Mr Leigh, there is, nonetheless, a change in the character of the streetscape as a result of signs approved, and this would be greater if the proposed created roof sign were added.
The proposed sign would affect the present state of amenity. Visible where there would otherwise be blank wall would be an additional created roof sign larger than most other signs visible in the immediate locality in Hutton Street. The Tribunal has formed the view that the degree to which a sign of the size proposed would affect the existing amenity would be too great to be acceptable.
Reasonable amenity and streetscape expectations must be influenced by the planning controls now in place. In the particular circumstances of a case, it might be unreasonable to apply those standards. The Tribunal has found, however, that in this case no circumstances exist to relax created roof sign standards to the extent that would be required for the proposed sign.
The Tribunal has concluded that the impact a created roof sign of the size proposed on the north-east facing elevation of the building would be injurious to the local visual amenity and streetscape and would therefore be inconsistent with the intent of the planning objectives for signs in DPS 2.
The Tribunal has decided not to support the development of the proposed north-east facing created roof sign on the site.
Orders
The Tribunal makes the following orders.
1.The application for review is dismissed.
2.The decision of the respondent dated 28 November 2008 is affirmed.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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