Burnell and City Of Joondalup
[2012] WASAT 107
•21 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BURNELL and CITY OF JOONDALUP [2012] WASAT 107
MEMBER: MS R MOORE (MEMBER)
HEARD: 8 MARCH 2012
DELIVERED : 21 MAY 2012
FILE NO/S: DR 488 of 2011
BETWEEN: STEVEN JOHN BURNELL
PAULA ANN BURNELL
ApplicantsAND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning Development application Refusal Trailer mounted variable message sign board Existing approved illuminated pylon sign Erosion of visual quality and character of locality and transport corridor Advertising to be commensurate with realistic needs of commerce Superfluous advertising Clutter Signs not to be misleading or dangerous
Legislation:
City of Joondalup District Planning Scheme No 2, cl 3.10.1, cl 5.1, cl 5.1.1, cl 5.1.2.1, cl 5.1.4, cl 5.1.9, cl 6.1.3(i), cl 6.8.1, cl 8.11.2.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review dismissed
Respondent's decision to refuse development approval affirmed
Category: B
Representation:
Counsel:
Applicants: Mr P Webb (Acting as Agent)
Respondent: Ms A Butterworth (Acting as Agent)
Solicitors:
Applicants: Peter D Webb & Associates (Town Planners)
Respondent: Allerding & Associates (Planning Consultants)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a development application for the installation of a trailer mounted variable message sign board at No 3 (Lot 60) Winton Road, Joondalup.
The proposed sign was to be located at the rear of the site in a position readily viewable from Joondalup Drive, and approximately 9 metres from an existing approved illuminated pylon sign.
The respondent was of the view that the proposed sign should not be approved because it was large in size, would be distracting by being illuminated and able to provide a variable or flashing message, and that there was sufficient signage on the site to meet the realistic needs of commerce for the business.
The applicants argued that the proposed sign was single sided with an area of 3.36 square metres, and while illuminated and able to change, it did not flash or pulsate and was constructed in materials similar to bus stop signage and, therefore, of a high standard of design. The applicants considered the proposed sign necessary in addition to the existing pylon sign in order to advertise the fact that variable message boards were available for hire from this location.
The Tribunal found that the proposed sign was inconsistent with the objectives of the relevant planning framework, which included the City of Joondalup District Planning Scheme No 2 and the City of Joondalup Policy Signs, as the proposed sign was not necessary for the realistic needs of the business, and would increase 'clutter' and contribute to the erosion of the visual quality and character of the area.
The application for review was dismissed and the respondent's decision to refuse development approval affirmed.
Introduction
These proceedings involve an application brought by Mr Steven John Burnell and Mrs Paula Ann Burnell (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review of the decision of the City of Joondalup (respondent or City) made on 17 November 2011 to refuse development approval for a trailer mounted variable message sign (VMS) board (proposed sign) at No 3 (Lot 60) Winton Road, Joondalup (site).
The City's decision
The application for the proposed sign at the site was refused for the following reasons:
(a)The signage does not meet the objectives of Council Policy Signs or the City of Joondalup District Planning Scheme No. 2, in particular:
i.The sign is not integrated with the existing structures onsite or of a design that complements the locality, therefore detracting from the amenity of the area;
ii.The trailer mounted variable message board signage is not considered to be of a high standard and quality for outdoor advertising and has a detrimental impact on the amenity of the locality, in particular the Joondalup Drive streetscape; and
iii.the varying messages displayed are considered distracting to vehicular traffic and presents a potential hazard for road users.
Site and locality
The site has a total area of 3,455 square metres and contains a large single storey building. The applicants operate an equipment hire business called 'The Good Guys' from one half of the building on the site.
Vehicular and pedestrian access to the site is from Winton Road. The proposed sign is to be located in close proximity to the rear boundary so as to be visible from Joondalup Drive.
The Tribunal had the benefit of a site view on the morning of the hearing in the company of the parties and their representatives. A trailer mounted VMS board was positioned to give an indication of the proposed sign and its location.
The locality, for the purposes of deciding this matter, was agreed by the parties to include Joondalup Drive, between Shenton Avenue to the north and Ocean Reef Road to the south, but excludes the residential zoned land on the eastern side of Joondalup Drive south of Grand Boulevard.
At this point, it should be noted that during the site view the parties' representatives became aware of an existing pylon sign on the Joondalup Drive frontage. The applicants confirmed that the sign that is usually fixed to the existing pylon was currently being repaired and would be reinstated soon.
This existing pylon sign is located 1.7 metres from the Joondalup Drive boundary, and 11.7 metres from the northern side boundary, with a sign area of approximately 2.5 square metres and at a height of 4 metres above the ground.
A sign licence for an illuminated pylon sign was granted in 1992, with conditions which included the requirement that the sign not be installed within 6 metres of another sign.
In light of this, the parties agreed that the applicants be allowed to amend the application the subject of this review in order to illustrate a new location for the proposed sign, at least 6 metres from the pylon sign.
Proposal
The proposed sign is a trailer mounted VMS board, 2.4 metres wide and 1.4 metres high, single sided with an area of 3.36 square metres. The VMS board is fixed to a pole or pylon which can be raised in height to a maximum of 2.06 metres to the bottom of the board, which, in this case, is just above the existing cyclone mesh fence.
The amended plan shows the proposed sign in a location 1 metre from the Joondalup Drive (eastern) boundary, and approximately 20.7 metres from the northern side boundary and 9 metres to the south of the existing pylon sign. Although the site address is Winton Road and vehicular access is off Winton Road, the rear of the site addresses Joondalup Drive, and the proposed sign will be visible from Joondalup Drive when travelling in a northerly direction.
The subject sign is illuminated and the message can be set to change at regular intervals, but, according to the applicants, does not flash or pulsate.
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme (MRS) and Service Industrial under the City of Joondalup District Planning Scheme No 2 (DPS 2 or Scheme).
The objectives of the service industrial zone are set out in cl 3.10.1 of DPS 2 as follows:
(a)accommodate a range of light industries, showrooms and warehouses, entertainment and recreational activities, and complementary business services which, by their nature, would not detrimentally affect the amenity of surrounding areas;
(b)ensure that development within this zone creates an attractive façade to the street for the visual amenity of surrounding areas.
Clause 5.1 of DPS 2 covers the control of advertisements and includes at cl 5.1.1 the objectives of the provisions. These objectives are set out and discussed in relation to issue 1 below.
Clause 5.1.2.1 of DPS 2 addresses the City's power to control advertisements and provides that:
For the purpose of this Scheme and subject to subclause 5.1.5, the erection, placement and display of advertisements, and the use of land or buildings for that purpose is development within the definition of the Act requiring, except as otherwise provided, the prior approval of the Council. Planning Approval is required in addition to any licence pursuant to the Council’s Signs Local Law.
Clause 5.1.4 of DPS 2 states the following in relation to the consideration of applications:
Without limiting the generality of the matters which may be taken into account when making a decision upon an application for Planning Approval to erect, place or display an advertisement, Council shall examine each such application in the light of the objectives of the Scheme and the provisions of any Local Planning Policy relating to signs or advertisements, 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 traffic safety, and the amenity of adjacent areas which may be affected.
Under cl 5.1.9, the Scheme is to prevail where its provisions are at variance to those of the City of Joondalup Signs Local Laws 1999.
Clause 6.8.1 of DPS 2 contains matters that are to be considered by the City when determining planning approval applications, and include the following:
(a)interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
(b)any relevant submissions by the applicant;
..
(d)any planning policy of the Council adopted under the provisions of clause 8.11;
…
(k)any other matter which in the opinion of the Council is relevant.
It is common ground that the proposed trailer mounted VMS board is reasonably described as an 'advertising device' under the provisions of DPS 2, and is defined in Sch 1 as follows:
advertising device : means any object or structure on which any word, number, figure, image, drawing, representation or message whatsoever is written, placed, affixed, attached, painted, projected or otherwise displayed, or on which provision is made for the same, for the purpose of advertising any business, function, operation, development, event, undertaking, person or any product or thing whatsoever, and includes any airborne device anchored to any land or building or any vehicle or trailer or other similar object placed or located so as to serve the purpose of advertising any business, function, operation, development, event, undertaking, person or any product or thing whatsoever.
Also relevant to the determination of this matter is the City of Joondalup Policy Signs (Signs Policy) which 'provides guidance on the extent and location of various forms of signage that are not exempt from planning approval under DPS 2'. The objectives of this policy are discussed in more detail below.
The City also has a local law relating to signage, City of Joondalup Signs Local Law 1999, which is referred to by both parties.
The issues
The respondent's statement of issues, facts and contentions included the following three issues for determination:
1Whether the proposed trailer mounted variable message board sign adequately meets the objectives of Clause 5.1.1 of the City of Joondalup District Planning Scheme No.2.
2Whether the proposed trailer mounted variable message board sign adequately meets the objectives of City Policy Signs.
3Whether approval of the development would be contrary to orderly and proper planning.
The applicants, in their response to this statement, added the following three issues:
4Whether in the circumstances of this proposal, Clause 4.5 of the Respondent's District Planning Scheme No. 2 (DPS 2) applies.
5Whether Clause 8.11 (and more particularly, Clause 8.11.2.2) applies, and
6Specifically, whether Clause 6.1.3(1) of DPS 2 applies.
Both parties were represented at the hearing by consultant town planners who also gave expert planning evidence. Mr Peter Webb represented the applicants and Ms Amanda Butterworth represented the respondent.
During the course of the hearing, Mr Webb, Ms Butterworth and the Tribunal discussed the issues above. In regard to issue 4, which refers to variations to site and development standards and requirements prescribed under the Scheme, both Mr Webb and Ms Butterworth agreed that this is not an issue requiring determination in the circumstances of this case.
The fifth issue proposed refers to cl 8.11.2.2 of DPS 2, which refers to the relationship of local planning policies to the Scheme. Mr Webb and Ms Butterworth agreed that, under DPS 2, a local planning policy does not form part of the Scheme nor is the City bound by it, but that the City shall have due regard to any provisions of any policy and its objectives before making a decision on a planning application. It was agreed that this was also not an issue requiring determination in the circumstances of this case.
Finally, the sixth issue refers to cl 6.1.3(i) of DPS 2, which states that planning approval is not required if the development consists of 'any works that are temporary and in existence for less than 48 hours or such longer time as the local government agrees'. Mr Webb confirmed during the hearing that the development application the subject of this review is for a permanent sign in the location specified on the amended plan, despite the fact that the proposed sign is mounted on a trailer and can be relocated relatively easily. Once again, it was agreed that this was not an issue requiring determination in the circumstances of this case.
The parties agreed that the main issues arising for determination by the Tribunal in these proceedings are the first three issues, and that even these overlap, particularly as the objectives of the Signs Policy support the objectives for the control of advertisements contained within the Scheme.
Does the proposed sign satisfy the objectives of cl 5.1.1 of DPS 2?
The objectives of the provisions for the control of advertisements are set out in cl 5.1.1 of DPS 2 as follows:
(a)to ensure that the visual quality and character of particular localities and transport corridors are not eroded;
(b)to achieve advertising signs that are not misleading or dangerous to vehicular or pedestrian traffic;
(c)to minimize the total area and impact of outdoor advertising commensurate with the realistic needs of commerce for such advertising;
(d)to 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)to reduce and minimise clutter; and
(f)to promote a high standard of design and presentation in outdoor advertising.
The planning experts agreed that the relevant transport corridor in this matter is Joondalup Drive which is adjacent to the subject site and is reserved as 'Other Regional Road' under the MRS.
As could be seen on the site view, the relevant section of Joondalup Drive contains a variety of signage types associated with different commercial enterprises along Joondalup Drive. These include Balistyle flags, pylon signs (some of which are shared) and signs on building façades. A number of the signs are illuminated and some contain variable LED messages (for example, petrol stations indicating fuel prices). There are also bus stops with illuminated double sided advertising.
Ms Butterworth was of the opinion that the proposed sign does not adequately meet the objectives of cl 5.1.1 of DPS 2 for the following reasons:
•The proposed sign is large in size and distracting by being illuminated and able to provide a variable or flashing message.
•The proposed sign does not advertise the address of the property, the nature of the business or assist to provide directions to the business.
•The business already has adequate integrated signage on the building which includes three large wall or fascia signs on the front, side and rear elevations of the building which are considered sufficient to meet the realistic needs of commerce for the business.
•Superfluous additional signage erodes the visual quality and character of the locality.
•The proposed sign is visible from the rear of the site on Joondalup Drive and not from the primary frontage on Winton Road.
•The proposed sign is potentially distracting to drivers on Joondalup Drive as the message changes every three to four seconds.
•The proposed signage is excessive, specifically with respect to prominence and visual impact on a main transit route and the potential for an accumulative impact of such signage.
•The existence of a nonoperating variable message sign on site is sufficient to demonstrate to customers that the business offers VMS advertising for hire.
•Approval may result in similar applications for other businesses along Joondalup Drive and the cumulative impact of such signage would be unacceptable.
•The proposed sign will increase visual and physical 'clutter' due to its imposing nature on the streetscape and the size and colours of the VMS display.
In response, Mr Webb made the following statements:
•The proposed sign is single sided with a total surface area of 3.36 square metres.
•The sign is illuminated and able to change but does not flash or pulsate.
•The sign is located approximately 25 metres from Joondalup Drive.
•The size and materials used are entirely consistent with the signage on Councilapproved bus stops, which are double sided and located much closer to the Joondalup Drive carriageway.
•Joondalup Drive contains numerous poorly placed and long standing signs within or adjacent to the road reserve, many in a poor state of repair.
•The character of the subject sign will not erode the visual quality and character of the Joondalup Drive locality as it currently exists.
•The proposed sign will be partially shielded from passing traffic by the vegetated verge.
•The applicants is required to comply with the HRIA-VMS Code of Conduct, which includes provisions specifically related to safety matters.
•Signs similar to the subject sign are used throughout Perth to control and advise traffic of changed circumstances, and are not considered to be a safety issue.
•VMS boards are generally temporary in nature and used by businesses feeling disadvantaged by actions beyond their control, providing customers with information in order to facilitate an improvement in their commercial circumstances.
•The design of Joondalup Drive, the large setback to properties and landscape and verge screening mean some businesses need to make customers aware of their existence.
•The materials are similar to the bus stop signage and must therefore be considered to be of a high standard of design and presentation.
The objectives in cl 5.1.1 of DPS 2 seek to ensure that the visual quality and character of particular localities and transport corridors is not eroded; that 'clutter' is minimised; and that advertising signs are not misleading or dangerous to vehicular or pedestrian traffic, are of a high standard, are commensurate with the realistic needs of the business and are not superfluous or unnecessary.
The Tribunal acknowledges that the site is located adjacent to Joondalup Drive, albeit with its access and frontage to Winton Drive, and as stated earlier, the existing character of the locality consists of a variety of signage types advertising different commercial enterprises along Joondalup Drive. In this particular case, the proposed sign will be in addition to an existing illuminated pylon sign and existing fascia signage on the building that the business operates from.
Mr Webb argued that the proposed sign was required in conjunction with the existing pylon sign because it advertised the fact that VMS boards were available for hire, whereas the pylon sign advertised the hire business itself, not the specific product. He also considered that the distance from the site to Joondalup Drive (some 25 metres) combined with the landscaped verge 'would make any static trailer all but invisible to passing motorists if it were not operating as proposed'.
Ms Butterworth said it was sufficient for the VMS board to be located in the same position on the site but not operational, and that the existing signage was sufficient for the realistic needs of commerce for this business, and that passersby would understand that this business hired out VMS boards.
The Tribunal is of the view that there is no need for a separate sign to advertise this particular product available for hire and, in fact, that argument could be taken to its extreme by proposing that every product or service could have its own sign. In this case, the site contains an approved illuminated pylon sign facing Joondalup Drive and building signage advertising the business operating on the site. Additional signage would be superfluous and unnecessary and increase 'clutter', which would contribute to the erosion of the visual quality and character of Joondalup Drive.
Ms Butterworth also argued that the proposed sign may have the potential to be dangerous to vehicular traffic because the message will change every three to four seconds. Mr Webb was of the view that by complying with the HRIA-VMS Code of Conduct, no safety issues would arise. Mr Webb could not provide the Tribunal with details regarding the status of this Code of Conduct or its enforceability. In this case, the Tribunal does not believe it has been provided with enough evidence from either party to make a finding in relation to the rate of change of the sign message and vehicular safety.
The Tribunal finds that the proposed sign does not satisfy the objectives of cl 5.1.1 of DPS 2, as it does not consider that an additional illuminated sign, with an area of 3.36 square metres, facing Joondalup Drive is necessary for the realistic needs of the business. The Tribunal is of the view that the proposed sign will increase 'clutter' and contribute to the erosion of the visual quality and character of the locality and transport corridor.
Does the proposed sign satisfy the objectives of the respondent's Signs Policy?
The planning experts agreed that, although the respondent's Signs Policy does not specifically refer to trailer mounted VMS boards, it is relevant and applies to all signs in the City. Ms Butterworth said that the respondent is currently reviewing its Signs Policy, and that specific reference to VMS advertising devices will be included in the future. She said there was currently no draft policy that could be considered a seriouslyentertained planning instrument.
The objectives of the Signs Policy are:
1.To provide guidance on the design and placement of signs located within the City of Joondalup.
2.To protect the quality of the streetscape and the amenity of adjoining and nearby residents by minimising the visual impact of signs.
3.To encourage signs that are well designed and positioned, appropriate to their location, which enhance the visual quality, amenity and safety of the City of Joondalup.
4.To facilitate a reasonable degree of signage to support business activities within the City of Joondalup.
5.To complement the provisions for signs as specified in the City of Joondalup's Signs Local Law (1999).
These objectives are closely aligned with the objectives expressed in cl 5.1.1 of DPS 2, and the parties relied on similar arguments.
Ms Butterworth, referring to the general design requirements of the Signs Policy, was concerned that the subject sign was not integrated with the building design, may have the potential to be a hazard to vehicles, and uses lights that flash, chase or pulse, and therefore does not satisfy the design requirements of the Signs Policy.
Mr Webb was of the opinion that the subject sign was not inconsistent with the design requirements. In particular, he noted that integration with the building design was required 'where possible' and was not appropriate in this case. He confirmed that the subject sign does not use flashing lights, nor does it use lights which chase or pulse.
The standard sign requirements for a range of sign types is set out in Table 1 of the Signs Policy, which contains a section headed 'freestanding signs' and includes a 'pylon sign'. In areas zoned Service Industrial, the sign standards are as follows:
Single Tenancy Pylon Sign
Area:Maximum 6.0 [square metres]
Dimension:Maximum 6.0m height
Must:
•Be restricted to one sign per lot except for a corner lot where one sign per frontage is permitted
•Where there are multiple tenancies, incorporate all signs into one composite sign
•Not be permitted where another free standing sign has been approved and erected on the same frontage
•Be no closer than 15m to the intersecting point of corner truncations
•Not impede vehicle sightlines for access to and from the property
Without attempting to classify the proposed sign, which it may be argued has some of the attributes of a pylon sign, it appears that the intent of the Signs Policy is that there be one freestanding pylon sign per lot or at least per frontage. It is the Tribunal's view that, in this case, as there is an existing approved pylon sign on the subject site facing Joondalup Drive, it would not be appropriate to approve an additional, larger sign on the same site and same frontage.
The Tribunal has found earlier that the proposed sign is not necessary in order to support the business activities carried out on the site. In this particular case, it is considered that the existing pylon sign and building signage is sufficient in size and location and is able to be seen from both Winton Street and Joondalup Drive. Extra signage in the form and location of the proposed sign would be superfluous to the reasonable needs of the business; would not enhance the visual quality and amenity of the locality and does not appear to satisfy the intent of the Signs Policy, which refers to one freestanding pylon sign per lot or per frontage.
The Tribunal therefore finds that the proposed sign does not satisfy the objectives of the respondent's Signs Policy.
Is approval of development in the interests of orderly and proper planning?
For the reasons discussed above, the Tribunal has found that the proposed sign does not satisfy the objectives of the provisions for the control of advertisements contained in cl 5.1.1 of DPS 2 or the objectives of the respondent's Signs Policy. The Tribunal therefore considers approval of the proposed sign is not in the interests of orderly and proper planning.
Conclusion
The application for review should be dismissed and the decision of the respondent to refuse development approval should be affirmed.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 17 November 2011 is affirmed.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, MEMBER
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