BP AUSTRALIA PTY LTD and CITY OF MANDURAH
[2006] WASAT 341
•24 NOVEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: BP AUSTRALIA PTY LTD and CITY OF MANDURAH [2006] WASAT 341
MEMBER: MR L GRAHAM (SESSIONAL MEMBER)
HEARD: 30 AUGUST 2006
DELIVERED : 24 NOVEMBER 2006
FILE NO/S: DR 108 of 2006
BETWEEN: BP AUSTRALIA PTY LTD
Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Monolith pylon sign - Sign infill area - Amenity - Orderly and proper planning - Precedent - Local traffic - Through traffic - Weaving - Origin and destination surveys
Legislation:
City of Mandurah Local Laws, s 14.2.1, s 14.3, s 14.4, s 14.5.2
City of Mandurah Town Planning Scheme No 3, cl 6.2.1.1
Peel Region Scheme
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
The decision under review is set aside and substituted by a decision of the Tribunal
Category: B
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Mr DF Nicholson
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
BP Australia Pty Ltd v City of Perth (Appeal No 16 of 1993)
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged as a result of a refusal by the City of Mandurah to a proposed 9 metre high monolith pylon sign at the existing BP service station site on the corner of Old Coast Road and Peelwood Parade, Halls Head, Mandurah. The City has indicated that they would be prepared to consider a 6 metre high sign adjacent to Old Coast Road.
In examining this matter, the Tribunal has had regard to the existing legislative and policy provisions that apply to the site, the question of visibility of the proposed sign when travelling north towards the site and a range of other traffic matters; including the safety implications of vehicles changing lanes as they approach the subject land. The questions of amenity, precedent and orderly and proper planning were also addressed.
The Tribunal found that there was no justifiable planning reason why a monolith pylon sign could not be constructed on the BP site adjacent to Old Coast Road, but not to the height contemplated by the applicant.
The decision under review has been set aside and the matter determined in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA).
Introduction
The application for review, dated 3 April 2006, was lodged by Hardy Bowen on behalf of BP Australia Pty Ltd (applicant) against a decision of the City of Mandurah (respondent) on 21 March 2006 to refuse a planning application, dated 15 December 2005, for a 9 metre high monolith pylon sign (MPS) for a BP Service Station at the corner of Peelwood Parade and Old Coast Road, Halls Head, Mandurah.
The application was made under the provisions of s 8A(1) of the Town Planning and Development Act 1928 (WA) (the Act).
The decision of the respondent was:
"That
1.The planning application for a monolith pylon sign for BP Service Station on Lot 801, No 2 Guava Way, Halls Head be refused for the following reasons:
(a)The proposal exceeds the provisions of Part A ‑ Pylon Signs of the City of Mandurah Local Planning Policy No 9 ‑ Advertising Devices in relation to height and sign infill area;
(b)The proposal will prejudice the amenity of the streetscape of the locality, and create an undesirable precedent for similar sized signs along Old Coast Road and in Mandurah;
(c)The existing and approved signage of BP Service Station is considered to be appropriate in terms of ensuring adequate exposure of the business;
(d)The monolith pylon sign is not consistent with the objectives of orderly and proper planning.
2.The applicant is encouraged to submit a revised application that complies with the provisions of Part A – Pylon Signs of Local Planning Policy No 9 – Advertising Devices."
Subject land and legislative framework
The subject land is described on Certificate of Title Vol 2598, Folio 897, as Lot 801 on Deposited Plan 46409. It has an area of 2877 square metres with a property street address at 2 Guava Way, Halls Head, and with frontages to Peelwood Parade and Old Coast Road. The land is essentially flat.
Under the Peel Region Scheme the land is zoned 'urban' and fronts a Primary Regional Road (Old Coast Road). It is zoned "commercial" in the City of Mandurah Town Planning Scheme No 3.
Respondent's position
The respondent's position is outlined in their Statement of Issues, Facts and Contentions dated 20 July 2006. They argue:
"16.The proposed sign … should be refused for the following reasons:
(i)The over-sized dimensions of the sign, namely its height and infill area, would have an undesirable impact on the amenity of the streetscape of the locality.
(ii)The proposed sign is not necessary to ensure adequate exposure of the service station business located on the site.
(iii)Approval of the application would set a planning precedent that could potentially lead to a proliferation of similar sized signs along Old Coast Road and elsewhere in the Mandurah district.
(iv)Variation of the Policy requirements would be contrary to the principles of orderly and proper planning."
Applicant's position
The applicant's position is outlined in a letter from Cardno BSD to the respondent dated 13 December 2005. They argue:
(a)"The impact of the sign is dependent on surrounding built form, the site and competing signage. The signage is not oversized or overwhelming feature along Old Coast Road (ie. visual impact)."
(b)"The majority of commercial sites on Mandurah Terrace and Pinjarra Road have direct access unlike the BP site and therefore a 6m sign is more likely to be sufficient for advertising a site with direct access from these roads."
(c)"The current pylon sign located on Peelwood Parade (facing Old Coast Road) does not adequately serve either road frontage, particularly in terms of clearly displaying important information to customers, such as fuel prices."
(d)"The sign will be illuminated in the standard manner for all BP signs and will not create a public annoyance or traffic hazard. There will be no flashing signs. The sign is defined as a static illuminated/non-rotated device and the driver distraction potential is regarded as "relatively insignificant" in accordance with the Main Roads Guide to Roadside Advertising…"
(e)"The proposed sign will be limited to advertising uses that will be carried out on the site and products being sold from the site (ie. fuel) as well as the standard BP insignia (ie. helios button)."
(f)"… the proposed monolith sign represents BP's new standard corporate signage, which is being erected on a global basis. A similar 9m high sign was approved on the BP Applecross site in the City of Melville."
(g)"Whilst the monolith sign is higher than the canopy and convenience store, it is streamline in design and no more than 2.2m in width … the higher portion of the sign (i.e. helios button) is reduced to a width of only 2m."
(h)"The monolith sign is located on the site with no extension over property boundaries. The verge area along Old Coast Road is relatively wide and as such the monolith sign is set well back from the carriageway ..."
(i)"In a highly competitive market, service stations rely heavily on visible signage."
Planning issues
The principal planning issues are:
(a)Does the proposed MPS conform to TPS 3 and/or relevant policy provisions?
(b)If the answer to (a) is in the negative, do the planning merits and the particular circumstances of this case justify an approval to a 9 metre high sign?
Assessment of proposal
Background
In January 2005 an application was lodged for the redevelopment of the BP Service Station on the subject land. The application included two monolith pylon signs, one addressing Peelwood Parade at 7 metres in height and a further sign addressing Old Coast Road at 9 metres.
A planning consent was issued by the respondent on 21 July 2005 but the two monolith pylon signs were not included as part of the approval.
A further application was received by the respondent on 23 December 2005. It proposed:
(a)The replacement of the existing 6.9 metre pylon sign on Peelwood Parade, but angled towards Old Coast Road with a new MPS on Old Coast Road 9.0 metres in height and 2.28 metres wide with an effective 'sign infill' area of 11.6 square metres.
(b)The new MPS would be positioned approximately 0.7 metres from the lot boundary abutting Old Coast Road.
(c)The existing price board on Peelwood Parade would be replaced by a new price board at 3.3 metres high.
The application was refused on 13 February 2006. However, following an application for review to this Tribunal on 3 April 2006 the matter was referred to mediation. Directions were made that further information be provided by the applicant for reconsideration by Council.
On 20 June 2006 the Council resolved to advise the Tribunal that it was prepared to support approval of the application for a MPS subject to a number of conditions. These included a limit on the height of the MPS to 6 metres as measured from natural ground level immediately below the sign and that the sign was to be located no closer than 1.8 metres to the property boundary.
The matter of the 'sign infill' area, which is restricted to 6 square metres under City of Mandurah Local Planning Policy No 9 ‑ Advertising Devices (LPP 9), was addressed in the report to Council of 13 February 2006:
"The intent of the monolith pylon sign is to provide fuel price information to passing vehicles, hence the need for increasing the effective sign infill area. The sign infill area is consistent with the objectives of the Policy, by providing adequate exposure of services …"
Again, in his closing statements for the respondent before the Tribunal Mr Nicholson addressed the matter in this way:
"As indicated by its June resolution, it [the Council] is willing to approve a sign of this nature subject to a 6 metre height limit, and that notwithstanding the fact that sign infill area would still exceed the requirements of the policy, as is self-evident from the dimensions in relation to the sign."
In the view of the Tribunal it is clear from the background to this matter that:
(a)The decision of the respondent of 21 March 2006 advised that the existing and approved signage, which includes a 6.9 metre high pylon sign, was appropriate.
(b)The Council resolution of 20 June 2006 placed a limit on the height of the MPS at 6.0 metres. This resolution appears contrary to the advice of 21 March 2006 regarding the appropriateness of a 6.9 metre high sign.
(c)A formal approval to the 3.3 metre high price board fronting Peelwood Parade was, according to the respondent's Statement of Issues, Facts and Contentions, granted on 20 June 2006.
(d)The respondent acknowledges that the 'sign infill' area will include fuel price information and services provided on‑site, and that it will exceed 6 square metres in area.
(e)The matter before the Tribunal is limited to the height and positioning of the MPS adjacent to Old Coast Road.
Legislative and policy provisions
The application dated 15 December 2005 was lodged with the respondent to replace the existing pylon sign with a new MPS under the provisions of cl 6.2.1.1 of TPS 3, and s 14.4 of the respondent's consolidated Local Laws (Local Law).
Under the Local Law, pursuant to subsection 14.2.1, an advertising device may not be erected or maintained without a valid licence:
"14.2.1Unless exempted under section 14.3, a person shall not erect, maintain, display or use an advertising device without a valid licence."
Pursuant to s 14.5.2, in determining an application for a licence, Council is to have regard to:
"(a)where the Advertising Devices Policy has been made in relation to the class of advertising device which is the subject of the application‑
(i)the Advertising Devices Policy; and
(ii)any other matters which Council considers to be relevant to the application …"
The LPP 9 was adopted in October 2003. The objectives of Part A ‑ Pylon Signs are:
"1.Objectives
•To ensure that the display of pylon signs does not adversely impact upon the amenity of surrounding areas while providing for adequate exposure of services.
•To ensure the display of pylon signs is compatible with the surrounding land uses.
•To ensure that pylon signage does not interfere with the safe movement of pedestrian and vehicular traffic."
Clause 3.2 of the Policy outlines the specifications for a MPS:
"A monolith pylon sign shall not:
•Be more than 6 metres above natural ground level immediately below it;
•Measure more than 2.5 metres horizontally across the face, and;
•Have a sign face area greater than 6 square metres.
A pylon sign in excess of these requirements may be approved in the Mandurah Forum, Halls Head, future Lakelands and Falcon commercial centres if it complies with the following and meets the provisions of Sections 3.1.3, 3.1.4 and 4:
•Displays a motif or emblem of the centre;
•Only one monolith pylon sign is erected;
•Does not exceed 15m above natural ground level immediately below it, and;
•Have a sign face area of not more than 10 square metres."
Clause 4 of the Policy outlines the assessment criteria for the City to consider and these include matters of:
"•Lot size;
•Effective street frontage and lots with more than one street frontage;
•Local Commercial Strategy;
•Extent of existing signage within the property;
•Scale of development;
•Amenity of the locality, and;
•Design and appearance of the sign."
The assessment criteria have been addressed by Ms Lorraine Elliott, a qualified town planner at the firm Cardno BSD Pty Ltd, for the applicant. She makes the following points:
(a)A recent realignment of boundaries with the adjacent tavern site necessitates a sign on Old Coast Road that is visible to Perth bound motorists at a sufficient distance from the subject site to ensure that traffic safety is not compromised.
(b)It is likely that motorists on Old Coast Road will include a significant proportion of 'passing trade' who are not familiar with the subject site and the services it provides. As such the need for prominent and easily visible signage is required.
(c)Whilst the Centro MPS may accord with the Policy which allows signs of up to 15 metres, it far exceeds the proposed 9 metre MPS on the subject site. The proposed MPS does not obstruct the Centro sign.
(d)As the existing BP sign will be removed, there will not be a proliferation of freestanding signage on the site.
(e)Whilst the proposed MPS will be higher than the proposed convenience store at 4.5 metres and canopy cover at 6.3 metres, it is streamlined in design with a maximum width of 2.28 metres and, with the same logo and colours, will result in a development of more integrated appearance.
(f)The proposed sign will not have an adverse effect on the amenity of the surrounding area or built environment.
Mr Michael Willcock, a Cadet Planning Officer for the respondent, addresses the assessment criteria in his witness statement dated 22 August 2006. He argues:
(a)The realignment of boundaries to create a larger lot size does not provide a basis for the 9 metre high MPS.
(b)The road reserve in front of the site adjoining Old Coast Road is relatively clear of vegetation and the service station is can be seen from the road when proceeding south on the highway.
(c)The provisions of LPP 9 allow a MPS to a height of 15 metres to facilitate the consolidation of signage within the shopping centre. The Policy is not intended to facilitate the proliferation of monolith pylon signs greater than 6 metres in height on individual business properties.
(d)The height of the proposed MPS will increase the amount of 'sign infill' panelling; resulting in the sign having more impact on the streetscape.
(e)The scale of the proposed MPS is not consistent with the scale of the proposed convenience store (4.8 metres) and canopy cover (6 metres).
(f)The approval of a 9 metre MPS would have an adverse effect on the visual amenity of the locality and set a precedent for the proliferation of similar sized signs along the Perth to Bunbury Highway. It would not be in the interests of orderly and proper planning.
In the view of the Tribunal the provisions of LPP 9, in the simplest of interpretations, provide for a single MPS up to 15 metres high at the Halls Head Commercial Centre if it displays the motif or emblem of the Centre. Otherwise, the height of the MPS is limited to 6 metres.
In that limited sense the proposed 9 metre MPS does not comply with LPP 9. But it is also the case under s 14.5.2 of the Local Law that in determining an application for a licence that Council is free to go beyond LPP 9 and consider any other matters relevant to the application.
It is not an unreasonable proposition that such "other matters" could include the assessment criteria outlined in [26] above.
The proposed monolith pylon sign – visibility
In the witness statement dated July 2006 of Mr Evan Holmes, an Architectural Scientist, he argues that the photomontages that he has produced for the applicant are an accurate representation of the location and size of both the proposed 9 metre high and alternate 6 metre high BP signs. These representations are taken at distances of 150 metres and 300 metres from Peelwood Parade on the Old Coast Road looking north from both the left hand and right hand lanes of the two lane carriageway.
In his evidence before the Tribunal Mr Donald Veal, a qualified transport engineer on behalf of the respondent, queries the accuracy of the photomontages of Mr Holmes based on his own on‑site observations of existing signs at the 150 metre and 300 metre distance from the subject site. His conclusions were that the size of the signs, as they appear to a driver, are considerably larger than they appear in the photomontages.
Based on the information before the Tribunal the following broad conclusions from the photomontages can be made:
(a)The existing Centro sign at 15 metres high (approximately) is clearly visible to a driver at 300 metres in both the left and right hand traffic lanes heading north.
(b)At a 300 metre distance the proposed 9 metre MPS is barely visible against the skyline from the left hand lane with the visibility slightly improved from the right hand lane.
(c)At a 300 metre distance a 6 metre MPS is barely visible, if at all, from the left hand lane with the visibility only slightly improved, if at all, from the right hand lane.
(d)At 300 metres a 9 metre MPS is, understandably, more visible than a 6 metre MPS.
(e)At 150 metres both a 6 metre and 9 metre MPS would be visible from both the right and left hand lanes heading north.
Just how reality would differ from the representations in the photomontages is not at all clear, but what is certain is that the relocation of either a 6 metre or 9 metre MPS to the Old Coast Road frontage would improve the visibility of signage when compared to the 6.9 metre high sign in Peelwood Parade.
Traffic matters
The level of traffic volumes on Old Coast Road is addressed in the witness statement dated 16 August 2006 of Behnam Bordbar, a qualified civil engineer for the applicant. He advises that, based on the latest traffic volumes from Main Roads WA, that in the vicinity of the subject land they currently approximate to 38,000 vehicles per day (VPD). This equates to 40 000 VPD on Albany Highway north of Leach Highway and 40 000 VPD on Leach Highway east of North Lake Road.
Mr Bordbar also advises that with the construction of the new Perth ‑ Bunbury Highway that this would draw some traffic away from Old Coast Road, but that with future development in Mandurah that traffic would eventually return to existing levels.
In a question from the Sessional Member to Mr Veal during the hearing he responded to a question on future traffic volumes on Old Coast Road:
"With the new road there will be immediate decrease but over time, because Mandurah itself – and the extra traffic and development within the Mandurah area, it should flow back to current levels fairly rapidly."
The question of long term traffic volumes is important in this review but it is the origin and destination of that traffic that is equally important. In that sense it does not seem unreasonable to this Tribunal, even in the absence of origin and destination surveys, that in the future a greater proportion of the traffic from that which exists today will be 'local' based traffic rather than 'through' traffic to Perth or to Bunbury and beyond.
The matters of traffic operations and safety assessment are also addressed by Mr Bordbar in this way:
(a)The crossing of two or more traffic streams travelling in the same direction is defined as 'weaving' as drivers access lanes appropriate for their desired exit point.
(b)The length of the weaving section constrains the time and space in which the driver must make the required lane changes.
(c)As the length of the weaving area decreases, the intensity of lane changing and the resulting level of turbulence or conflict increases.
(d)During the peak period the road environment would be 'constrained'; that is one where a motorist would have to reduce speed to change lanes.
(3)Based on a non-weaving speed of 70 km per hour in a 'constrained' environment on the outer lane of the northbound carriageway of Old Coast Road, a weaving length of 50 metres and 55 metres is required for existing and future traffic volumes.
(f)Allowing for a two second reaction time for motorists in the outer lane to see the BP sign and decide to change lanes, the BP sign should be visible 89 metres and 94 metres prior to the start of the 150 metre left‑turn pocket into Peelwood Parade for existing and future traffic volumes respectively.
(g)These distances equate in total to 239 metres and 244 metres respectively from the signalised intersection of Old Coast Road and Peelwood Parade.
(h)A 9 metre sign would significantly improve the visibility of the sign and allow safe weaving to occur for motorists to access the BP service station.
In the witness statement of Mr Veal, dated 25 August 2006, he tackles the question of traffic operations and safety from another perspective. He argues:
(a)Advertising signs are not viewed by the road authority as traffic signs and the need for clear sight lines is not relevant to road safety.
(b)The BP sign would not provide any instructions to approaching drivers and should not be seen as being of any importance in controlling traffic movements.
(c)The 9 metre high sigh proposal does not increase the standard size of the signs content, but simply lifts the BP logo higher above the trees. The symbol will not appear any bigger to approaching motorists.
In answer to a question from Mr Nicholson as to whether a 6 metre MPS would be visible to a motorist travelling at 70 km/hour Mr Veal responded: "Yes, it would be visible".
In answer to a further question as to whether a motorist in the outer lane would, at that speed, have sufficient time at 300 metres to safely weave across to the left hand lane Mr Veal responded: "From 300 metres, yes".
On this point Mr Bordbar advised in his witness statement:
"It is evident that a 6m sign is not visible at a sufficient distance to allow safe weaving to occur by approaching motorists (300 metres from the intersection of Old Coast Road/Peelwood Parade)."
The matter of safety is dealt with by Mr Veal in his witness statement in relation to the 81 recorded crashes in the five year period 2001 to 2006 within 300 metres of the intersection between Old Coast Road and Peelwood Parade. He advises:
"Of these 3 related to lane change behaviour and all related to major property damage only (i.e. no injuries). Of these three crashes two involved northbound movements; one was within 20m of the intersection whilst the other was north of the BP site."
Based on the information before it, it does appear to the Tribunal that within 300 metres of the Old Coast Road/ Peelwood Parade intersection that that section of road for northbound motorists is not particularly unsafe. It also appears that the photomontages brought into evidence may not provide an accurate reproduction of a driver's view of the site, but a scaled down version.
In any event it is the view of the Tribunal that the matter is more to do with the knowledge of drivers as to the existence of the service station, rather than being able to see a sign which in any event is positioned well to the left of the driver's line of vision relative to the large Centro site. This is whether the driver is in the left lane or right hand lane.
On the matter of involvement of Main Roads the applicant relies on an e‑mail dated 29 November 2005 from a Mr Andy Rowlands, Customer Services Manager, South West Region. The e-mail advises: "… I don't think Main Roads would have an objection to the proposed sign".
This information is not a formal advice from the agency, is non specific and of little value to the Tribunal in this review.
The question of need and amenity
It is clear that the applicant considers that the highly competitive nature of the industry requires a sign adjacent to Old Coast Road, and preferably at 9 metres high. The question of need is not challenged by the respondent.
However, the matter of amenity is an issue where the parties disagree.
The Tribunal is assisted on this point from the photomontage evidence at a distance of 300 metres south of the Peelwood Parade intersection with Old Coast Road. There is extensive vegetation on both sides of Old Coast Road with the commercial centre highlighted by the Centro sign in the distance to the north.
At Annexure 5 to the witness statement of Ms Elliott at Plan 1 is photographic evidence of the intersection. It shows a conglomeration of signage, traffic lights and overhead power lines together with the existing 6.9 metre BP sign in Peelwood Parade angled towards Old Coast Road. Plan 2 shows the existing sign removed and a representation of a new 9 metre high sign on the subject land.
The relationship of need to amenity was addressed in BP Australia Pty Ltd v City of Perth (Appeal No 16 of 1993):
"When the character of the use is such that the authority or the Tribunal is required to consider the public interest, need can be considered as a factor which may support the placement of the use in a particular locality even though there is a loss of amenity."
In this particular case the use (service station) is already in existence and has survived without signage adjacent to Old Coast Road. What is sought is to replace an existing 6.9 metre high BP sign without 'sign infill' with a 9 metre high sign in a different location with 'sign infill'.
In the circumstances of this case the Tribunal believes that, even in the absence of an objective analysis of the amenity of the locality, that the amenity will not be significantly altered by either a 6 metre or 9 metre high MPS located in the existing commercial centre.
Policy and orderly and proper planning
In Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 it states:
"In several cases it has been held that where a tribunal attaches too much or too little importance to a 'policy' or other relevant consideration, an error of law is not thereby committed …"
In this particular case a 6 metre high MPS would accord with LPP 9 and a 9 metre high LPS would not, but as explained in [30] above Council, and this Tribunal in a de novo consideration of the matter, is free to go beyond those provisions. In other words the Tribunal is not obliged to attach great weight to or adhere to the 6 metre provisions of LPP 9.
The matter of precedent
This matter was addressed by Mr Nicholson in his closing statements:
"Whilst, as Ms Elliott stated, each case must be treated on its merits, it nonetheless is the case, and particularly upon review, that where a variation is seeking to be justified reference is always made to prior approvals and prior precedents. So it will influence the manner in which future applications are determined. That is, this is the core concern of the City that it would be contrary to the interests of orderly and proper planning to ignore that fact."
The Tribunal accepts that there are circumstances where an approval could be used by others as a precedent to advance similar proposals. However, each case needs to be treated on its individual merits. As pointed out in Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988), precedent is not to be treated as a "stand alone" argument, and is but one factor to be taken into account. That is certainly the case in this review.
Conclusions
The application for review is the result of a refusal by the respondent to approve a 9 metre high MPS on the subject site adjacent to Old Coast Road in Halls Head, Mandurah. The reasons for refusal were that the proposal exceeded the provisions of LPP 9, that it would prejudice the amenity of the locality and set an undesirable precedent and would not be consistent with orderly and proper planning. It was advised in the decision that the existing and approved signage was considered appropriate in terms of ensuring adequate exposure of the business.
In considering this matter the provisions of LPP 9 are important in that they set limits on the size of a MPS that is not intended to be the focal point of signage at certain specified commercial centres, such as at Halls Head. These limits include a 6 metre height, a horizontal face of 2.5 metres and not have a sign face area greater than 6 square metres.
However, subsection 14.5.2 of the Local Law allows Council the flexibility in determining an application for a licence to consider matters other than LPP 9 in its final determination. That same flexibility applies to this Tribunal.
From the applicant's perspective there is a belief that in the competitive environment of the service station business that high exposure is important, and that on this stretch of Old Coast Road a 9 metre high sign is preferable to a 6 metre high sign.
The applicant also argues that a taller sign would assist drivers when heading north along Old Coast Road at 70 km/h to change lanes in order to negotiate a left hand turn into Peelwood Parade.
The respondent disagrees, and argues that a 6 metre high sign would be obvious at a 300 metre distance from the subject site; but in any event advertising signs should not be used to direct traffic movement.
What is important to this Tribunal are the particular circumstances of this case which include high traffic volumes along Old Coast Road, traffic movements, crash data and the origin and destination of existing and future traffic. Unfortunately, this latter information is not available but it does not seem unreasonable to the Tribunal that with the construction of the new Perth to Bunbury Highway that a greater proportion of traffic on Old Coast Road will be 'local', rather than 'through' traffic to Perth or to Bunbury and beyond. If this was not the case the investment in public infrastructure would have been largely wasted.
With this in mind most 'local' traffic, and a proportion of 'through' traffic, would be aware of the existence of the BP service station with or without signage adjacent to Old Coast Road. For those drivers not aware of the service station they would be able to stop, look and observe its existence at the traffic lights when on 'red' when travelling either north or south.
Based on these circumstances there does not appear to be a sufficiently valid case to support the proposed sign at 9 metres high. However, the Tribunal also takes the view that as there is already a 6.9 metre high sign on the lesser of the two roads, that it is a reasonable proposition that it be replaced by a sign of similar height adjacent to Old Coast Road to display both price board information and services offered on‑site.
It is also the view of the Tribunal, that having regard to the relatively wide verge adjacent to the subject site that the new sign could be positioned at 0.7 metres from the property boundary, and not interfere with the safe movement of pedestrian or vehicular traffic.
The Tribunal also believes that with the commercial zoning of both the subject land and adjacent land, together with the existing signage and adjacent nearby traffic signals and signs, that the existing amenity of the locality would not be diminished by the presence of a BP sign adjacent to Old Coast Road. Also, that the construction of a new BP sign would not be contrary to the interests of orderly and proper planning.
The matter of precedent has also been addressed but, as explained in [60] above, each case needs to be considered on its particular merits, and a decision in this case should not be interpreted as necessarily applying elsewhere.
The following conditions of development are imposed by the Tribunal:
(a)The height of the monolith pylon sign (MPS) to be no higher than 6.9 metres as measured from natural ground level immediately below the sign.
(b)The MPS to be located no closer than 0.7 metres to the property boundary with Old Coast Road and no closer than 1.8 metres to the boundary adjoining the Halls Head Tavern site.
(c)The price board adjacent to the Peelwood Parade boundary to be located no closer than 0.7 metres to that boundary.
(d)No significant vegetation is to be disturbed or removed for the placement of the signs without the prior written approval of the City of Mandurah.
(e)The signs shall be kept clean and maintained free of dilapidation at all times to the satisfaction of the City of Mandurah.
(f)The signs shall not contain flashing lights nor be flood lit.
(g)The proposed development to be carried out in accordance with an approved sketch plan(s)/working drawings agreed to by the City of Mandurah in accordance with these conditions.
(h)That in the event of a disagreement between the parties with respect to these conditions that the matter(s) be referred back to the Tribunal for first determination.
Orders
For the foregoing reasons, and in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are as follows:
1.The decision under review is set aside.
2.That the matter is determined in accordance with conditions (a) to (h) outlined in [74] above.
I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SESSIONAL MEMBER
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