| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BERNADINI PTY LTD and SHIRE OF SERPENTINEJARRAHDALE [2010] WASAT 26 MEMBER : MS M CONNOR (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 FEBRUARY 2010 FILE NO/S : DR 283 of 2009 BETWEEN : BERNADINI PTY LTD Applicant
AND
SHIRE OF SERPENTINEJARRAHDALE
Respondent
Catchwords: Town planning - Development application - Refusal of pylon sign - Planning framework does not support offbuilding pylon signs - Whether appropriate to depart from established planning framework - Location and context - Reduction in the number of signs onsite - Precedent Legislation: Metropolitan Region Scheme
Petroleum Products Pricing Act 1983 (WA)
Planning and Development Act 2005 (WA), cl 252(1)
(Page 2)
Shire of SerpentineJarrahdale Town Planning Scheme No 2, cl 5.6, cl 5.18.5.2, cl 6.4.2, cl 6.4.3, cl 7.15
State Administrative Tribunal Act 2004 (WA), s 60(2) Result: The application for review is dismissed
The decision of the respondent is affirmed Category: B
Representation: Counsel:
Applicant : Mr G Pember (Representative)
Respondent : Mr R Haeren (Representative)
Solicitors:
Applicant : Bernadini Pty Ltd
Respondent : Urbis
Case(s) referred to in decision(s):
Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Bernadini Pty Ltd applied to the State Administrative Tribunal for review of the Shire of SerpentineJarrahdale's decision to refuse planning consent for a pylon sign, measuring 6 metres high and 2.267 metres wide, at No 868 (Lot 2) South Western Highway, Byford. 2 The principal issue for determination in this proceeding was whether, given the circumstances of the case, discretion should be exercised to approve a pylon sign that departs from the requirements of the established planning framework. 3 The Tribunal found that in the circumstances of this case, it was appropriate to depart from the Byford Townsite Detailed Area Plan and permit a replacement pylon sign of some description on the subject land. However, the Tribunal did not consider that a sign of the proportions applied for warranted approval, as the scale was not consistent with the planned vision for the locality and, as such, would prejudice the orderly and proper planning of the locality and diminish the likely future amenity of the area. The application for review was dismissed and the decision of the respondent affirmed.
Introduction 4 An application for planning approval was lodged with the Shire of SerpentineJarrahdale (respondent or Shire) on 1 April 2009 for the erection of a 6 metre high pylon sign at No 868 (Lot 2) South Western Highway, Byford (subject land). 5 The application to commence development was refused by the respondent at its meeting of 22 June 2009 for the following reasons: 6 Bernadini Pty Ltd (applicant), on 14 July 2009, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. (Page 4)
7 As a part of the mediation process, three alternate options were provided by the applicant, and the respondent was invited by the Tribunal to reconsider the reviewable decision in light of these options. The respondent, at its special meeting of 12 October 2009, resolved to reaffirm its previous decisions. 8 Pursuant to s 60(2) of the State Administrative Tribunal Act2004 (WA), conduct of the matter proceeded entirely on the documents, although the Tribunal had the benefit of a view, accompanied by representatives of the respective parties. The submissions and evidence filed by the parties in respect to this matter address the original proposal as submitted with the application for approval to commence development.
Subject land and site context 9 The subject land is located on the eastern side of South Western Highway within the Byford Town Centre, the closest intersection being Abernethy Road and South Western Highway. 10 There is an existing building set back between 13 to 16 metres from South Western Highway, which is currently occupied by a liquor and small grocery store. As well, two petrol bowsers are located in the area between the building and the highway. 11 There are currently three signs erected on the subject land and one sign within the road reserve: i) a dilapidated 5.7 metre high pylon sign with internal illumination and decorative illumination on the circumference of the sign. The surface area of the sign is 4.84 square metres; ii) two fixed signs advertising the liquor store 'Cellarbrations'. The surface area of each sign is 2.98 square metres in area; and iii) a fixed sign located within the road reserve of the northwest corner of the lot displaying the word 'Peak' and displaying the price of fuel. The surface area of this sign is 2.98 square metres in area. (Page 5)
The proposal 12 The proposal intends to rationalise signage on the subject land by consolidating the existing signage into one pylon sign, which is 6 metres high and 2.267 metres wide. The sign incorporates advertising for two of the uses occurring on the subject land, namely the Peak service station and Cellarbrations liquor store. The display panels identify each of the tenancies and include petrol pricing and discounting information, which also incorporates the identification of a commercial entity not operating from the subject land (IGA). The surface area of the advertising purportedly equates to 8.31 square metres. The proposed sign replaces the existing pylon sign, which is located in the southwestern corner of the subject land.
Planning framework 13 The subject land is zoned Urban in the Metropolitan Region Scheme and Commercial under the Shire ofSerpentineJarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme). 14 The purpose and intent of the Commercial zone as set out in cl 5.6 of the Scheme is to encourage the establishment of a commercial centre in each of the four towns in the Shire, one being the Byford Town Centre, and to maximise the public benefit and amenity in the towns in respect of retail, office and entertainment facilities. 15 Clause 7.15 of the Scheme relates specifically to the control of advertising. This clause provides definitions relating to advertising and sets out provisions relating to the existing and exempted advertisements; the need to apply for planning approval for signs that are not listed as exempted advertising or existing advertisement; and the issuing of notices affecting the display of advertisements. There is no contest between the parties that this proposal requires planning consent. 16 Clause 6.4.3 of the Scheme provides the authority for the respondent to refuse or approve an application. In determining the application, the respondent is required to have regard to the relevant matters set out in cl 6.4.2 of the Scheme. The pertinent matters relating to this application are as follows: • the purpose for which the subject land is zoned or approved for use under the Scheme (subclause (a)); (Page 6)
• the purpose for which the land in the locality is reserve, zoned or approved for use under the Scheme (subclause (b)); • the provisions of the Scheme and any Council policy affecting the land (subclause (d)); • any comments received from any authority consulted by the Council (subclause (e)); • the orderly and proper planning of the locality (subclause (g)); and • the preservation of the amenity of the locality (subclause (h)). 17 The Byford Town Centre is subject to a District Structure Plan and a Detailed Area Plan. The respondent is also currently advertising the draft Byford Town Centre Local Structure Plan (draft Local Structure Plan) and draft Design Guidelines. 18 Of particular relevance, cl 5.18.5.2 of the Scheme provides that, subject to an exception that does not apply in this case, once approved by the local government, the detailed area plan is to be used as the basis for determining development applications with respect to the land subject to the detailed plan. 19 The Byford Townsite Detailed Area Plan (BTDAP) identifies a number of character precincts. The subject land is located within Character Area I, which defines the intended future character of the area and provides various detailed development standards. The BTDAP requires that advertising signage must conform to the requirements of the Shire of SerpentineJarrahdale Local Planning Policy No 5 Control of Advertisements (LPP 5). However, the BTDAP prohibits a range of signage types in the town centre, including pylon signage. Further, signage other than the name of the business, the principal activity of the business and the street address will not be permitted, and third party advertising will not generally be permitted. This position is also reflected in the draft Byford Town Centre Design Guidelines (draft Design Guidelines). 20 LPP 5 indicates that subject to a planning application and a complex signage strategy, pylon signs may be permitted in the Commercial zone. (Page 7)
The standards set out for pylon signs that are of relevance to this application are as follows: Pylon Signs shall: • not be more than 6.0m above ground level; • not cause a hazard to pedestrians or vehicles; • not exceed 2.5m measured either vertically or horizontally across the face of the sign; Notwithstanding the provisions above, where a lot contains more than one tenancy and: • has an area of up to 0.5 hectares, a pylon sign may, with the approval of the Council, be increased: The structure to which a pylon sign is affixed shall be comprised only of one or more supports with an aggregate width not exceeding 300mm unless a sign strategy acceptable to the Council for the whole site has been submitted.
Issue 21 The principal issue in this proceeding is whether, given the circumstance of the case, discretion should be exercised to approve a pylon sign that departs from the requirements of the planning framework that has been formulated by the respondent. 22 Pursuant to cl 5.18.5.2 of TPS 2, the BTDAP is to be used as a basis for determining development applications. The board vision identified in this document for the Byford townsite is to provide a 'distinctive community which celebrates its rural character, natural environment and lifestyle whilst providing sustainable recreational, commercial and lifestyle advantages for those who choose to live there'. One of the general objectives of the BTDAP is to 'minimise the impact (Page 8)
of … development on the existing character, natural environment and amenity of the area'. One of the approaches taken to reduce the impact of commercial development in Character Area I is to control advertising signage by restricting the type of signage permissible in the area. The BTDAP acknowledges LPP 5 but specifically identifies that offbuilding pylon signs, amongst others, are not be permitted in the town centre. This position is reinforced in the draft Design Guidelines. Clearly, the planning framework that has been established to guide decisionmaking in this locality does not support this type of signage. 23 As Barker J held in Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433, policy guides the exercise of discretion and does not replace the discretion in the sense that it is to be inflexibly applied regardless of the merits of the particular case. His Honour said that: … the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to] the particular application. 24 The applicant explained that the Petroleum Products Pricing Act1983 (WA) requires retailers to display clearly the price at which fuel is being offered for sale. The Tribunal was told that the proposed signage is necessary to promote competition and address the expectations held by consumers, as they need to be able to see the brand and price of the relevant motor fuel and any discounts being offered prior to entering the site. 25 The applicant argued that the proposed sign needs to be considered in light of the location of the subject land and in the context of the movement network proposed by the draft Local Structure Plan. The applicant acknowledged that the subject land will form part of the Byford Town Centre as defined by the draft Local Structure Plan, but argued that the South Western Highway will essentially form the eastern edge of the town centre core. It is the applicant's contention that the finegrain movement network, land use and built form desired will not eventuate along South Western Highway, as the road forms part of the regional road network and will continue to accommodate traffic volumes that are not conducive to 'main street' design principles. The applicant considered that, in this context, the proposed sign was in keeping with the highway location and would not prejudice the objective of incorporating traditional neighbourhood design principle within the town centre. (Page 9)
26 The applicant also argued that the proposed approach of combining the signs into one larger sign was preferable from an urban design perspective, as an alternative approach involving a number of smaller compliant signs located along across the subject land would result in a proliferation of signage, which would not be consistent with the town centre vision. The applicant, whilst acknowledging that the proposed sign was larger than the requirements specified in LPP 5, considered the introduction of one sign covering all fuel pricing and advertising requirements to be a 'cleaner' approach from a streetscape and traffic safety perspective. Further, the applicant submitted that the scale of the proposed sign is identical to many other pylon signs associated with service stations in the metropolitan area, and that the consolidation of the existing signage onsite would improve the visual amenity on the periphery of the town centre and along the frontage of South Western Highway. 27 The Tribunal's attention was also directed to the signage associated with the Caltex service station situated on the corner of South Western Highway and Nettleton Road, Byford (approximately 600 metres south of the subject land), which is at least 6 metres in height and well in excess of the requirements specified in the LPP 5. The applicant considered this disparity to be unfair as the commercial competitiveness of the business will be decreased, ultimately affecting the level of prices being offered to the local community.
Tribunal's findings 28 Although the current and proposed planning framework does not support a pylon sign in this locality, the Tribunal considers that it would be unreasonable in the circumstances of this case, given that the subject land is zoned Commercial and there is an existing pylon sign on the subject land, not to permit a replacement pylon sign of some description. However, the Tribunal does not consider that a sign of the proportions applied for warrants approval. 29 The applicant's argument relating to the consolidation of signs onsite is based on a misapprehension that the existing signs have lawful approval. The evidence given by the respondent, which was not challenged by the applicant, was that, except for the existing pylon sign which was approved in April 1989, there are no records of any other approvals for signage on the subject land. The removal of illegal signage does not advance the applicant's case in this respect. (Page 10)
30 The Tribunal is cognisant of the applicant's needs to provide signage for two commercial activities (namely, the service station and the liquor store) and that signage adequately display the fuel pricing and discounting. However, the respondent considers signage to be a critical element in the overall streetscape in the Byford Town Centre and has developed design objectives to promote signage that will positively contribute and enhance the desired character of the town centre. Although east of South Western Highway, the subject land together with other surrounding parcels of land included in Character Area I, are envisaged to provide a community focus within the town centre, and the urban design principles advocated for the town centre core are considered to be just as pertinent in this area of the town centre. Clearly, the proposed sign is discordant with that vision and in light of the desired character of this area is considered to be excessive, particularly as the respondent's general guidance for pylon signs to be no greater than 4 square metres in area. 31 There is an obvious need for a comprehensive sign strategy to be developed for the subject land that acknowledges the respondent's vision and design objectives for the area and recognises the advertising needs of the two commercial operators. The Tribunal is not persuaded by the argument concerning the existing pylon sign located approximately 600 metres south of the subject land as the circumstances are distinguishable, in that the land on which the sign is erected is located outside the Byford Town Centre, where pylon signs may be considered, and was approved prior to the formulation of LPP 5. 32 Although the Tribunal, in considering the substantial merits of this particular case, considers it appropriate to depart from the BTDAP and a replacement pylon sign be approved on the subject land, the Tribunal does not support the proposed sign as the scale is not consistent with the planned vision for the locality and, as such, would prejudice the orderly and proper planning of the locality and diminish the likely future amenity of the area.
Orders 33 For the above mentioned reasons, the Tribunal makes the following orders: (Page 11)
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