Brian Wright Architect Pty Ltd and Shire of Mundaring
[2009] WASAT 15
•28 JANUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BRIAN WRIGHT ARCHITECT PTY LTD and SHIRE OF MUNDARING [2009] WASAT 15
MEMBER: MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 JANUARY 2009
FILE NO/S: DR 358 of 2008
BETWEEN: BRIAN WRIGHT ARCHITECT PTY LTD
Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Town planning - Development application - Change of display panels on existing pylon sign and the erection of an additional 3 metre high pylon sign - Advertising to be commensurate with the realistic needs of commerce - Reduce and minimise clutter - Erosion of the visual quality of the locality
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Shire of Mundaring Town Planning Scheme No 3, Div 3, cl 1.12, cl 1.13(4), cl 3.1(3), cl 5.7, cl 5.10, cl 6.7
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Brian Wright
Respondent: Christopher Jennings (Acting as Agent)
Solicitors:
Applicant: Brian Wright Architect Pty Ltd (Architect)
Respondent: Shire of Mundaring
Case(s) referred to in decision(s):
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Smart and Byrne v Barossa Council [1999] SAERDC 29
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Wright applied to the State Administrative Tribunal for review of the Shire of Mundaring's decision to refuse planning approval for changes to the display panels on the existing approved pylon sign and the erection of an additional 3 metre high pylon sign at No 7060 (Lot 11) Great Eastern Highway, Mundaring.
The principle issues that emerged for consideration in the review were whether the proposed development was consistent with the objectives of cl 5.7 of the Shire of Mundaring Town Planning Scheme No 3 and the impact on the amenity of the locality.
In considering the substantial merits of this particular case in light of the objectives of the planning framework, the Tribunal held that the proposal did not warrant approval. The Tribunal found that although the additional sign was not out of place given the commercial character of the locality, it would undoubtedly increase 'clutter'. The Tribunal considered that, in this case, the need for the advertising of ancillary convenience services did not justify adding to the physical and visual clutter of the locality. The Tribunal found that the proposed development was not consistent with the objectives of the Shire of Mundaring Town Planning Scheme No 3 and would contribute to the erosion of the visual quality of the locality. The application for review was dismissed and the respondent's decision affirmed.
Introduction
An application for planning approval was lodged with the Shire of Mundaring (respondent) on 9 July 2008 for proposed changes to the display panels on the existing approved pylon sign and the erection of an additional 3 metre high pylon sign at No 7060 (Lot 11) Great Eastern Highway, Mundaring (subject land).
The application to commence development was refused under delegated authority by the Executive Manager Statutory Services on 28 August 2008 for the following reasons:
1.Non-compliance with section 5.7(c) and 5.7(d) of the Shire of Mundaring's Town Planning Scheme No 3. The proposed pylon sign and change of display panels on the existing pylon sign are considered superfluous and unnecessary.
2.Non-compliance with section 5.7(e) of the Shire of Mundaring's Town Planning Scheme No 3. The proposed pylon sign and change of display panels on the existing pylon sign will create physical and visual clutter.
3.Non-compliance with Part 1(4)(f) of the Local Law on signs. Amenity will be detrimentally affected by the proposed pylon sign and change of display panels on the existing sign.
Mr Wright (applicant), on 24 September 2008, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
As a part of the proceedings, the Tribunal conducted a view accompanied by representatives of the respective parties.
Subject land and site context
The subject land is located in the Mundaring Town Centre, which is the focal point in the Shire for commercial activity (see Precinct Structure Plan for the Business District Zone). It is anticipated that the Mundaring Town Centre 'will have a full range of retail, business, commercial, civic and cultural uses. It is the administrative centre of the Shire and has the potential for considerable growth in the longterm future'.
The subject land is 4,046 square metres in area and has two street frontages; the primary street frontage being Great Eastern Highway and Library Lane as its secondary street frontage. A service station, as well as an IGA store, has been constructed on the subject land. The offices of the Shire of Mundaring are located to the west of the subject land and commercial premises have been constructed on the land to the east. On the northern side of Great Eastern Highway, adjacent to the subject land, there is an established shopping precinct.
The proposal
The proposal involves two components:
1)the removal of unleaded, diesel and LPG fuel price display panels from the existing approved pylon sign and replacement with unleaded fuel price, ATM and takeaway food display panels; and
2)the erection of a 3 metre high pylon sign with unleaded, diesel and LPG fuel price display panels. The sign is to be located on the Great Eastern Highway frontage approximately 15 metres east of the existing pylon sign.
Planning Framework
The subject site is zoned 'Urban' in the Metropolitan Region Scheme and 'District Business' under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3 or Scheme).
Clause 1.12 sets out the 'General Objectives' of TPS 3. The general objective of the Scheme that is of particular relevance to this matter is:
(f)to ensure the use and development of land does not result in significant adverse impacts on the physical environment;
Specific objectives relating to the 'District Business' zone are set out in cl 3.1(3) of TPS 3. Of particular relevance are subclause (c) which seeks 'to ensure that buildings, ancillary structure and advertising are of high quality and achieve an architectural theme contributing to a townscape unique to the district' and subclause (h) 'to ensure that development conforms to the principles of any Precinct Plan and any other Code adopted by the Council', that being the Precinct Structure Plan for the Business District Zone.
Table 1 'Zoning Table' indicates use permissibility in various zones. Advertisement, which is defined in cl 1.13(4) of TPS 3, is an 'AA' use (not permitted unless special permission is granted by the Council) in the 'District Business' zone.
Division 3 of TPS 3 relates to the control of advertisements. The objectives as specified in cl 5.7 are to:
(a)ensure that the visual quality and character of particular localities and transport corridors are not eroded;
(b)achieve advertising signs that are not misleading or dangerous to vehicular or pedestrian traffic;
(c)minimise the total area and impact of outdoor advertising commensurate with the realistic needs of commerce for such advertising;
(d)prohibit outdoor advertising which is considered to be superfluous or unnecessary by virtue of their colours, height, prominence, visual impact, size, relevance to the premises on which they are located, number and content;
(e)reduce and minimise clutter;
(f)promote a high standard of design an[d] presentation in outdoor advertising; and
(g)to ensure that the objectives set out in this Scheme for the zone where an advertisement is provided are not compromised.
Clause 5.10 of the Scheme provides that without limiting the generality of the matters which may be taken into consideration in determining an application for planning approval to erect, place or display an advertisement, (which would include the matters set out in cl 6.7 of the Scheme) the Council is required to examine each application in the light of the objectives as specified in Div 3 and with particular reference to the character and amenity of the locality within which it is to be displayed, including its historic or landscape significance and effect on traffic safety and the amenity of adjacent areas which may be affected.
Issues
The principal issues in this proceeding are whether the proposed development is consistent with the objectives of cl 5.7 of TPS 3, with particular reference to subclauses 5.7(c), 5.7(d) and 5.7(e) (as set out in para 15) and whether the advertising signs will detrimentally affect the amenity of the locality and adjacent areas.
The respondent contends that the proposed signage is not consistent with cl 5.7(c) or cl 5.7(d) for the following three reasons:
1)there will be a duplication of advertising as the price of unleaded fuel will be featured on two signs;
2)services proposed to be advertised (ATM and takeaway food) are common functions of a service station, and as such, do not require advertising for the realistic needs of business; and
3)the construction of the second pylon sign will, in combination with topographical and physical features particular to the site, diminish the effectiveness of the existing signage by creating visual obstruction onto the advertising devices.
In regard to subclause 5.7(e) the respondent argued that the additional signage will increase the perception of clutter which will detract from the amenity of the locality.
The applicant argues that the respondent's regulatory regime does not take account of the unique needs of a service station site. The applicant contends that there is a real need for service stations to display the price of their fuel products and services and that the display of this information could hardly be labelled superfluous or unnecessary. In support of this claim, Mr Wright asserts that it has become common practice for services stations in Perth to have two pylon signs, one being the price board and the other, the main sign, displaying the company logo and services provided. As well, in the initial application to the respondent, the applicant identified several service stations sites within the municipality that had more than one pylon sign.
The applicant also claims that in an attempt to increase competition amongst providers, service stations will soon be required by law to 'display the prices of all the products they sell on a price board on the site clearly visible to passing motorist'. Further, the applicant argues that for a service station to be competitive there is a legitimate need to alert passing motorists of the convenience services provided in store and on site. It is asserted that a refusal of the proposed signage will deny Peak Petroleum substantial rights that other service stations are permitted.
It is Mr Wright's evidence that the existing pylon sign will always be visible to motorists travelling west on Great Eastern Highway due to its extra height and would come into full view at a distance of 80 metres from the sign. He considered this as an adequate distance in which a vehicle travelling at 60 kilometres per hour could stop and turn into the site. Mr Wright estimates that travelling east the proposed pylon would come into full view 123 metres from the sign. This evidence was not challenged by the respondent.
He does not consider that the additional pylon sign will increase the perception of clutter as the signs are positioned far enough apart for this not to occur and the public is accustomed to service station signage and the existence of two pylon signs on such sites. Mr Wright highlights the presence of a shopping precinct adjacent to the service station site and the use of signage in such a precinct. He considers that the proposed pylon sign will blend harmoniously with its surroundings and present as a harmonious signage package.
Tribunal's considerations
Given the zoning and approved use of the land it is inevitable that there will be a presence of signage on the subject land. However, the extent and impact of the proposed signage on the character and amenity of the locality is at issue. The Scheme gives clear guidance on the control of advertising through cl 5.7 of TPS 3, which seeks to ensure that the visual quality and character of the locality is not eroded and that advertising is of a high quality, is commensurate with the realistic needs for the business, is not superfluous or unnecessary, is not misleading or dangerous to vehicular or pedestrian traffic and that clutter is minimised.
The Tribunal acknowledges that the subject land is located on a regional road within the Mundaring Town Centre and is situated adjacent to a shopping precinct. There is a noticeable presence of advertising in this locality, which is understandable given the commercial zoning and approved uses of the land. However, the existing advertising signs generally identify the business operating at the site of the signage rather than the goods/services provided by the business.
The desire to advertise some of the convenience services provided by the service station has resulted in the need for additional signage. The Tribunal agrees that there is a compelling argument in support of the need to display the price of fuel products as fuel pricing varies daily and between service stations and the display of this information is consistent with federal government initiatives and serves some public purpose. However, the Tribunal is not convinced that service stations have 'unique' needs that require the advertising of ancillary convenience services. The Tribunal considers that the need to identify the provision of such ancillary services by service stations is no greater than other commercial businesses offering the same services, such as corner shops and the like. These services are now commonplace at service stations and as such, the need for the identification of the provision of such services is considered to be low and unnecessary. The existing approved sign identifies the businesses (Peak and IGA) operating from the site and displays the price of fuel products, and as such, is considered to satisfy the 'realistic' advertising needs for a service station use.
Even if it were to be accepted that there are in fact other service stations in the Perth metropolitan area and in the Shire of Mundaring that have two pylon signs on site, it does not follow that this application should be approved. This generalised argument does not take into consideration the different circumstances that will exist in each case and as Ipp J in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 found, '… it is the Tribunal's statutory duty to apply sound town planning principles to the substantial merits of each particular case'. Although His Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal. Furthermore, even if the circumstances were the same, as the court observed in Smart and Byrne v Barossa Council [1999] SAERDC 29 at [9]:
Trite as it may be so, 'two wrongs do not make a right', or to put it another way, the Court cannot use bad examples of development as justification for proposals which are contrary to a Plan's provisions.
In considering the substantial merits of this particular case in light of the objectives of the planning framework, the Tribunal does not consider the proposal warrants approval. Although the additional sign is not out of place given the commercial character of the locality, it will undoubtedly increase 'clutter', if not only by the mere fact of it being an additional sign on site. In this instance, the Tribunal does not consider that the need for advertising of ancillary convenience services justifies adding to the physical and visual clutter of the locality. The proposed development is not consistent with the objectives of TPS 3 and will contribute to the erosion of the visual quality of the locality. The application should therefore, not be supported.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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