CARATTI HOLDING CO PTY LTD and CITY OF BELMONT
[2021] WASAT 105
•11 AUGUST 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CARATTI HOLDING CO PTY LTD and CITY OF BELMONT [2021] WASAT 105
MEMBER: MS C BARTON, MEMBER
HEARD: 18 AND 19 MAY 2021
DELIVERED : 11 AUGUST 2021
FILE NO/S: DR 163 of 2020
BETWEEN: CARATTI HOLDING CO PTY LTD
Applicant
AND
CITY OF BELMONT
Respondent
Catchwords:
Town planning - Development application - Exercise of planning discretion - Advertising sign - Advertisement - Wall sign - Innominate use - Industrial zone - Character of the locality - Visual amenity - Third party advertising - Consistency with local planning policy - Consistency with objectives of industrial zone - Historical land use - Whether undesirable precedent - Whether cogent reason to depart from policy
Legislation:
City of Belmont Local Planning Scheme No 15, cl 1.7, cl 2.3.1, cl 3.2, cl 3.4.2, cl 3.4.2(a), cl 3.4.2(b), cl 4.21, Sch 5
Evidence Act 1906 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 3(5), cl 4, cl 60, cl 61(1), cl 67(2)(a), cl 67(2)(b), cl 67(2)(g), cl 67(2)(n), cl 87
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 24, s 27, s 27(1), s 29(3), s 32(1), s 32(2)(a), s 32(2)(b)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Skinner |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Aspen Pty Ltd v State Planning Commission (unreported, Town Planning Appeals Tribunal of WA, Appeal No 13 of 1988, 21 October 1988)
Avalon Sheds and Stables and City of Belmont [2009] WASAT 67
Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 249
Claude Neon Ltd v City of Perth (unreported, WA Sup Ct, Kennedy J, 31 July 1987)
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185
Cornhill and Western Australian Planning Commission [2009] WASAT 9
D and Department of Community Development [2007] WASAT 154
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Goldin & Anor v Minister for Transport (2002) 121 LGERA 101
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Marsh and Commissioner of Police [2018] WASAT 139
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Phillips and Shire of Mundaring [2009] WASAT 193
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Ridgecity Holding Pty Ltd and City of Albany [No 2] [2006] WASAT 187
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 4 November 2019, Caratti Holding Co Pty Ltd (applicant) sought retrospective development approval from the City of Belmont (City) for two existing advertising signs (signs) located at Lot 403 (515) Great Eastern Highway, Redcliffe (subject site). The signs have displayed third party advertising since the early 1960s.
At its meeting on 23 June 2020, the Council of the City (Council) refused the development application for a number of reasons, including that the signs advertise services/products which are not available at the subject site, contrary to objectives 3.1 and 3.3, and the requirements of cl 6.1.1 of the City of Belmont Local Planning Policy No. 12 Advertisement Signs (Signage Policy). The applicant was notified of the City's decision on 16 July 2020.
On 23 July 2020, the applicant sought review of the City's decision by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
The applicant seeks orders from the Tribunal to set aside the City's decision of 16 July 2020 and grant approval for the signs. For the reasons that follow, I conclude that the development application, the subject of review, should be allowed subject to conditions.
The issues for determination
The following issues arise for determination by the Tribunal:
1)Are the signs consistent with the City's Signage Policy and, if not, is there a cogent reason to depart from the Signage Policy?
2)Are the signs consistent with Main Roads Western Australia's Policy and Application Guidelines for Advertising Signs Within and Beyond State Road Reserves (MRWA Policy) and, if not, is there a cogent reason to depart from the MRWA policy.
3)Would approval of the signs set an undesirable precedent?
4)Are the signs consistent with the objectives of the Industrial Zone under the City of Belmont Local Planning Scheme No 15 (LPS 15)?
The parties agreed, based on the advice of expert traffic engineers, that if certain modifications to local traffic signs were implemented by way of conditions of development approval then issue 2 is no longer a matter that arises for determination in this proceeding. Accordingly, the issues for determination by the Tribunal are limited to issues 1, 3 and 4, albeit reordered.
The subject site and proposed signs
The subject site is located on the southern side of Great Eastern Highway at the intersection of Great Eastern Highway and Fauntleroy Avenue. The subject site is formally known as Lot 403 on Deposited Plan 40683 being the whole of the land in Certificate of Title Volume 2912, Folio 971.
The land on which the subject site is located is zoned 'Industrial' under LPS 15. Under the Metropolitan Region Scheme (MRS), the subject site is primarily zoned 'Urban,' however, a portion of it is located within a regional road reserve.
The subject site has an area of 8,503m2 and is used for the storage and repair of industrial vehicles. An existing warehouse/office building is located on the subject site (building). The signs are located on the northwestern and northeastern corners of the external walls of the building respectively. The dimensions of the sign on the northwestern façade are 3.3 metres by 12.5 metres, with a display area of 41.3m2. The dimensions of the sign on the northeastern façade is 3.3 metres by 12.9 metres, with a display area of 42.6m2. Both signs have a clearance of 4.8 metres above natural ground level.
The signs are defined under the Signage Policy as 'wall signs' and display third party advertising content. The signs have been located on the external walls of the building since it was erected in the early 1960s.
There is no proposal to modify the size or structure of the signs. The signs do not incorporate any moving parts and are not internally illuminated. Drivers of vehicles travelling south-west on the Great Eastern Highway can view both signs, while drivers of vehicles travelling south-east on Fauntleroy Avenue can view the north-west facing sign only.
The Tribunal's review jurisdiction
By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the PD Act (referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction, which may modify the operation of the SAT Act in relation to the matter).[1]
[1] Section 18, SAT Act.
The Tribunal is to review the City's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the information and evidence before it.[2]
[2] Section 27, SAT Act.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[3] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[4]
[3] Section 32(2)(a), SAT Act.
[4] Section 32(1), SAT Act.
The Tribunal is not limited to the material before the City as the original decision-maker, but may consider new material.[5] The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities.[6] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
Witness evidence and conduct of the proceeding
[5] Section 27(1), SAT Act.
[6] Section 32(2)(b), SAT Act.
Each party filed and gave to the other party a Statement of Issues, Facts and Contentions (SIFC). The City filed an amended SIFC on 20 January 2020, and the applicant filed its amended SIFC on 12 February 2021. The City filed a bundle of documents under s 24 of the SAT Act on 23 September 2020 and the applicant filed its bundle of documents on 14 December 2020.
A director of the applicant company, Mr John Caratti, filed a witness statement dated 22 March 2021 and gave evidence at the hearing about the historical use of the subject site. Mr Caratti gave his evidence in an open and forthright manner and, for this reason, I found him to be an honest and reliable witness.
Mr Sean Fairfoul, a town planner with the Rowe Group, prepared a witness statement dated 17 November 2020, and a supplementary witness statement dated 7 May 2021. Mr Fairfoul was retained by the applicant to conduct an independent planning assessment of the proposal that is the subject of the application under review. The City relied on the planning evidence of Mr Wilmot Loh who prepared a witness statement dated 20 November 2020 and a supplementary statement dated 12 May 2021. I found Mr Fairfoul and Mr Loh to be honest and reliable witnesses who were of assistance to the Tribunal in its determination.
The proceeding was heard on 18 and 19 May 2021 with the parties and their counsel attending the Tribunal in person. On the first day of the hearing, the Tribunal had the benefit of a view of the subject site and locality.
The planning framework
The relevant planning framework, which I have considered in my determination, is attached to these reasons as Annexure A and includes references to the following:
1)PD Act;
2)Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions);
3)MRS;
4)LPS 15; and
5)Signage Policy.
The Tribunal's consideration
The applicant is seeking retrospective approval for two existing signs that display third party advertising.
Under cl 60 of the Deemed Provisions, a person must not commence or carry out works on, or use land in the City's local government area (Scheme area) unless the person has obtained approval under LPS 15, or the development is exempt under cl 61(1) of the Deemed Provisions, including the exempted advertisements listed in Sch 5 to LPS 15. There was no dispute, and I find, that the signs and their use for third party advertising, require approval under LPS 15 and are not exempt from development approval under cl 61(1) of the Deemed Provisions.
I was not asked to determine whether the signs benefit from nonconforming (or existing) use rights and, therefore, I make no finding in respect of that matter. There was no dispute, and I find, that the signs have not been granted development approval under LPS 15.
The amenity of the locality
Under cl 67(2)(n) of the Deemed Provisions, I must, in considering an application for development approval, have due regard to the existing and future amenity of the locality including, relevantly, the character of the locality. The term 'amenity' is defined in cl 1 of the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
The correct approach to an amenity assessment does not involve a simple comparison of the amenity impact of the proposed development with the amenity impact of the existing (or assumed to be existing) development: Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [70]. The Tribunal must first determine, as a matter of fact, the objective character of an area that represents the present state of amenity: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 (Sunbay) at [20]. In Sunbay, the Tribunal referred to the decision of Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304 in which the Town Planning Appeal Tribunal observed that:[7]
[T]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality. … [The Tribunal emphasised that the first part of the inquiry involves a determination,] as a matter of fact, [of] the objective character of the area that represents the present state of amenity[.]
[7] Sunbay at [20].
In Ridgecity Holding Pty Ltd and City of Albany [No 2] [2006] WASAT 187 at [42], the Tribunal considered the concept of locality and found as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case.
The locality was identified by Mr Fairfoul by way of a plan.[8] With the exception of the residential area to the northwest of Great Eastern Highway, Mr Fairfoul described the locality as a 'well defined general industrial cell'.[9] Mr Loh agreed with the delineation of the locality as marked by Mr Fairfoul on the plan but also considered that the Great Eastern Highway corridor was of particular relevance.[10] In crossexamination, Mr Loh acknowledged that the locality was limited to those parts of Great Eastern Highway from where the signs are discernible,[11] which he ultimately conceded was the Great Eastern Highway and Fauntleroy Avenue intersection.
[8] Witness Statement of Sean Fairfoul dated 27 November 2020, Annexure 8.
[9] Witness Statement of Sean Fairfoul dated 27 November 2020, para 22.
[10] ts 37, 18 May 2021.
[11] ts 59, 18 May 2021.
Mr Loh regarded the Great Eastern Highway corridor as undergoing transition in terms of built form and stated that the quality of development would be facilitated by the Draft Great Eastern Highway Urban Corridor Strategy (Draft Strategy).[12] Mr Loh observed that the subject site is earmarked as a landmark site under the Draft Strategy but that the building on the subject site is weathered and unattractive. He considered that the building was not to the standard expected in a modern industrial area and given its prominent location.[13]
[12] ts 75, 18 May 2021.
[13] Witness Statement of Wilmot Lik Yeow Loh, dated 20 November 2020, para 65.
I accept the evidence of Mr Fairfoul and Mr Loh, and I find, that the locality, for the purposes of assessing its character and determining its amenity, is that area delineated on the plan prepared by Mr Fairfoul having particular regard to those parts of Great Eastern Highway from which the signs are discernible. Mr Fairfoul observed, and I find, that the locality includes many types of various signs, corporate branding and third party advertising.[14]
[14] Witness Statement of Sean Fairfoul dated 27 November 2020, para 148 and Annexure 7.
There was no dispute, and I find, that the locality has poor existing amenity, particularly poor visual amenity.[15] I accept the evidence of Mr Loh, and I find, that the Great Eastern Highway corridor is undergoing transition and, therefore, the amenity of the locality is likely to improve in the future as envisioned by the Draft Strategy. Based on the evidence before me, I find that the likely future amenity of the locality may improve but it is unlikely to be substantially different to that which presently exists.
Meaning of 'advertisement'
[15] Witness Statement of Wilmot Lik Yeow Loh, dated 20 November 2020, para 57; ts 52, 18 May 2021.
In considering an application for development approval, I am required under cl 67(2)(a) of the Deemed Provisions to have due regard to the aims and provisions of LPS 15.
There was no dispute and, I find, that the signs, which will display third party advertising, fall within the meaning of an 'advertising sign' or an 'advertisement'.[16] The expression 'advertisement' is defined in cl 1 of the Deemed Provisions as follows:
advertisement means any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, that is used wholly or partly for the purposes of advertising, announcing or directing, and includes
(a)any hoarding or similar structure used, or adapted for use, for the display of advertisements; and
(b)any airborne device anchored to any land or building used for the display of advertising; and
(c)any vehicle or trailer or other similar object placed or located so as to serve the purpose of displaying advertising[.]
[16] Clause 4.21 of LPS 15 provides that any sign, hoarding or advertising device which does not comply with any local law is prohibited.
I find, that 'advertisement' is a use that is not specifically referred to in the Zoning Table of LPS 15 and, therefore, it is a use not listed or an innominate use.
'Advertisement' as a use not listed in the Zoning Table
Where a use cannot reasonably be determined as falling within the type, class, or genus of activity of any other use category of the Zoning Table, cl 3.4.2 of LPS 15 provides that the local government (or the Tribunal standing in its shoes) may:
a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
b)determine that the use may be consistent with the objectives of the particular zone and, thereafter, follow the advertising procedures contained in Clause 64 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2; or
c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
The applicant contends that the use class of 'advertisement' as defined in both LPS 15 and the Deemed Provisions 'is consistent with' the objectives of the Industrial Zone, and, therefore, the use is properly considered a permitted use under cl 3.4.2(a) of LPS 15. Alternatively, the applicant argued that the use 'may be consistent' with the objectives of the Industrial Zone and, therefore, is a discretionary use under cl 3.4.2(b) of LPS 15. Ultimately, the applicant agreed that it is appropriate to deal with the application on the basis that the use 'may be considered' consistent with the objectives of the Industrial Zone for the purposes of cl 3.4.2(b) of LPS 15 and, therefore, the matter ought to be treated as a discretionary use.[17]
[17] ts 98, 19 May 2021.
Because 'advertisement' is not a use listed in the Zoning Table, the application was determined by Council after it was advertised in accordance with cl 3.4.2(b) of LPS 15.[18] There were no public submissions received in response to the advertisement.[19]
[18] Witness Statement of Wilmot Lik Yeow Loh dated 20 November 2020, para 15.
[19] Respondent's amended SIFC, para 32A.
There was no dispute, and I find, that cl 3.4.2 of LPS 15 applies in this case because 'advertisement' does not fall within the type, class, or genus of activity of any use category of the Zoning Table. Because the proposed 'advertisement' use 'may be consistent with' the objectives of the particular zone for the purposes of cl 3.4.2(b) of LPS 15, I am able to consider and determine the development application for third party advertising on its merits as an independent use.[20]
[20] See Claude Neon Ltd v City of Perth (unreported, WA Sup Ct, Kennedy J, 31 July 1987) at 16.
I will next consider whether the signs are consistent with the objectives of the Industrial Zone for the purposes of cl 3.4.2 of LPS 15, being Issue 4 identified as arising for determination in this proceeding.
Are the signs consistent with the objectives of the Industrial Zone?
The expression 'consistent with' is not defined in LPS 15. Where a word or expression is not defined in the PD Act or LPS 15, cl 1.7 of LPS 15 provides that the dictionary definition prevails.
In the recent decision of WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153 (WA Timber Supplies), the Tribunal considered the meaning of the expression 'consistent with' and referred to the following passage[21] from Phillips and Shire of Mundaring [2009] WASAT 193 at [20][21]:
[21] WA Timber Supplies at [56].
20The expression 'consistent with' in cl 3.2(4) of TPS 3 is not defined in the Scheme. The expression relevantly bears its ordinary and natural meaning: Gillespies v Warringah Council (2002) 124 LGERA 147 at [77] (Gillespies). According to The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005), the adjective 'consistent' has the following meanings:
1. agreeing or accordant; compatible; not self-opposed or selfcontradictory. 2. constantly adhering to the same principles, course, etc. (p 314)
21The words 'agreeing', 'accordant' and 'compatible' have the following relevant meanings:
•agree 'to be of one mind; harmonise in opinion or feeling … to be consistent; harmonise' (p 27)
•accordant 'agreeing; conformable[']; (p 9)
•compatible 'capable of existing together in harmony' (p 301); see also Gillespies at [74] and Buildex Construction Company and City of Melville [2008] WASAT 86 at [53].
Accordingly, I find that the phrase 'consistent with the objectives of the particular zone' in cl 3.4.2 of LPS 15 means that the signs must be in accordance with or compatible with those objectives. I further find that the relevant zone objectives are those of the Industrial Zone, being the zone in which the subject site is located. However, it is not necessary that the signs promote or are ancillary to the zone objectives for it be consistent with those objectives.[22]
[22] WA Timber Supplies at [136][137]; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 192.
The objectives of the Industrial Zone are set out in cl 3.2 of LPS 15 as follows:
Industrial Zone
The Industrial Zone is intended to provide for the industrial development of the Kewdale Industrial Estate and the Redcliffe Industrial Estate. The significance of the Kewdale Industrial Estate as a transport and logistics hub as part of the Kewdale-Hazelmere Integrated Masterplan is acknowledged. The local government may approve a wide range of industrial activities within this zone subject to conditions designed to achieve a high standard of industrial environment.
The City contends that the signs are inconsistent with the objectives of the Industrial Zone because it is not an industrial activity, it is not facilitative of industrial activity, and does not provide a high standard of industrial development. It is the City's position that the approval of signs which will display third party advertising on the subject site is likely to detract from the achievement of the objectives of the Industrial Zone for the following reasons:
1)it may discourage the redevelopment of old, unattractive industrial development, by providing a low cost income source which does not require any capital injection; and
2)the proliferation of third party advertising visible from the public domain will add to visual clutter in a manner which detracts from visual amenity, and which is inconsistent with high quality industrial development.
In support of these contentions, the City relied on the evidence of Mr Loh who is of the opinion that third party advertising is likely to be a disincentive to the development of property which undermines the objective of the zone to provide for industrial activities and a high standard industrial environment.[23] Mr Loh is of the opinion that the signs do not support the industrial activities of the Redcliffe Industrial Estate.[24] It is also Mr Loh's opinion that where a sign is of no benefit to a particular site because it does not identify the relevant business it is unnecessary and, therefore, will add to visual clutter.[25]
[23] Witness Statement of Wilmot Lik Yeow Loh dated 20 November 2020 at para 71; ts 46, 18 May 2021.
[24] Witness Statement of Wilmot Lik Yeow Loh dated 20 November 2020 at para 71.
[25] ts 79, 18 May 2021.
Mr Fairfoul acknowledged that third party advertising could act as a disincentive to redevelopment in certain circumstances but that '[e]qually the inclusion of third party advertising may take a development from being non-viable to being viable ...'.[26]
[26] ts 46, 18 May 2021.
Mr Fairfoul observed that the signs have been in place on the subject site since the building was first constructed, or shortly thereafter, and throughout that time the subject site and the remainder of the Redcliffe Industrial Estate has been developed and used for industrial purposes.[27] He does not consider that the signs will add to visual clutter.[28] It is Mr Fairfoul's opinion that the signs are capable of existing in harmony with the objective of the Industrial Zone to approve a wide range of industrial activities within the zone and achieve a high standard of industrial environment.[29] Mr Fairfoul stated:[30]
In my view, a use of 'advertisement', in circumstances such as the present case where the use involves only a small portion of the site, and where the site has otherwise been and will continue to be predominantly used for other purposes that are clearly of an industrial nature, can be positively said to be consistent with the objective of the Industrial Zone to provide for industrial development[.]
[27] Supplementary Witness Statement of Sean Fairfoul, dated 7 May 2021, para 22.
[28] ts 79, 18 May 2021.
[29] Supplementary Witness Statement of Sean Fairfoul, dated 7 May 2021, para 23.
[30] Supplementary Witness Statement of Sean Fairfoul, dated 7 May 2021, para 21.
I accept the evidence of Mr Caratti and Mr Fairfoul and find that the subject site has been used for industrial purposes since the early 1960s and that the signs have been located on the subject site since that time. I further find, based on the evidence of Mr Fairfoul, which I accept, that the signs will not interfere with the continued use of the subject site for industrial purposes or interfere with the industrial activities of the Redcliffe Industrial Estate. The expert planning witnesses agreed, and I accept, that there are circumstances in which third party advertising could act as a disincentive to redevelopment of industrial sites to a higher standard. However, there was no evidence adduced by the City to support a finding in this case that the approval of the signs would act as a disincentive to redevelopment of the subject site.
Accordingly, I find that the signs, in the circumstances of this case, are not inconsistent with the objectives of the Industrial Zone.
Is the development consistent with the Signage Policy?
The City has adopted the Signage Policy which outlines when advertising signs require development approval, and the objectives and standards against which the City will assess applications.[31] It applies to all advertising signs visible from the public realm within the Scheme area.[32]
[31] Clause 1, Signage Policy.
[32] Clause 2.1, Signage Policy.
The parties agree, and I find, that the Signage Policy is relevant to my determination under cl 67(2)(g) of the Deemed Provisions and, ultimately, to the 'correct and preferable' decision as to whether the signs should be approved under s 252(1) of the PD Act.
Under cl 6.1.1 in Pt 6 of the Signage Policy, third party advertising is not permitted. Clause 6.1.1 of the Signage Policy provides:
Advertisement signs shall only advertise services and products available on the premises to which it relates. Third party advertising is not permitted.
Clause 2.4 of the Signage Policy provides that where the development requirements in Pt 6 or 'deemed to comply' criteria in Column B of Table 1 are not met, then the signs are to be assessed against the objectives in Part 3 of the Signage Policy and will not be supported 'unless exceptional circumstances exist'. The circumstances that may be considered 'exceptional' are not detailed. Clause 2.4 of the Signage Policy provides:
Advertisement signs that do not comply with the criteria listed in Column B of Table 1 and the Development Requirements listed in Part 6 of this Policy, will be assessed against the objectives outlined in Part 3 of this Policy. Advertisement signs that do not comply with the objectives are deemed unacceptable and will not be supported unless exceptional circumstances exist.
(Emphasis added)
The objectives in Part 3 of the Signage Policy relevantly provide:
3.1Ensure that advertisement signs are appropriate for their location, relate to the land and/or buildings for which they are placed, and do not adversely impact the amenity of the surrounding area.
…
3.3Ensure the advertisement signs only advertise services offered and/or products produced, sold and/or manufactured on the land or buildings/s related to the approved use/s taking place.
In effect, cl 2.4 of the Signage Policy deems, as unacceptable, signs that display third party advertising 'unless exceptional circumstances exist'.
The meaning of 'exceptional circumstances'
In Avalon Sheds and Stables and City of Belmont [2009] WASAT 67 (Avalon Sheds), the Tribunal considered the meaning of the expression 'exceptional circumstances' and concluded that for circumstances to be considered 'exceptional' they should be circumstances that are, individually or together, uncommon, unusual, special or out of the ordinary.[33] The Tribunal in Avalon Sheds at [28] referred to the decision of D and Department of Community Development [2007] WASAT 154 in which Chaney J stated:
[33] Avalon Sheds at [29].
19The Act does not define 'exceptional circumstances'. The Australian Concise Oxford Dictionary (2nd Edition), Oxford University Press, Melbourne, 1992 defines exceptional as 'forming an exception; unusual; not typical'. In Baker v The Queen (2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:
'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'
20In Ho v Professional Services Review CommitteeNo 295 [2007] FCA 388 at [26], Rares J after referring to the observation of Griffiths v R (1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that 'although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances', said:
'Exceptional circumstances within the meaning of s 106KA(2) [of the Health Insurance Act 1973 (Cth)] can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional …
It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.'
The parties' contentions - Signage Policy
Because 'advertisement' is a use not listed, and is a discretionary use under cl 3.4.2(b) of LPS 15, the applicant contends that the Signage Policy cannot determine land use permissibility. The applicant referred the Tribunal to cl 3(5) of the Deemed Provisions which provides that if there is an inconsistency between a local planning policy and the scheme, the scheme prevails to the extent of any inconsistency.
It is the applicant's position that the signs are appropriate for their location and do not adversely impact on the amenity of the locality, consistent with the objectives of the Signage Policy and most relevantly the objective in cl 3.1 of the Signage Policy. The applicant relies on the evidence of Mr Fairfoul in support of its position. Mr Fairfoul is of the opinion that having regard to the objectives of the Signage Policy there is no perceivable amenity impact of displaying a third party advertising sign or an on-premises advertising sign at the subject site.[34] Nevertheless, Mr Fairfoul considered that the circumstances were unusual because the signs are the only signs on a very large building and that the subject site is a large property with frontage to three streets.[35]
[34] Witness Statement of Sean Fairfoul, dated 27 November 2020, para 133.
[35] ts 41, 18 May 2021
The City contends that the signs are inconsistent with the objectives in Part 3 of the Signage Policy because they will be used for third party advertising and will not relate to the subject site. The City relied on the evidence of Mr Loh who stated that the signs will add to visual clutter because they will draw attention away from site-related business signs.[36] Mr Loh stated:[37]
So the – the reason for discouraging unnecessary signage is to do very much with visual clutter for amenity purposes but also then should signage that is displayed is helpful to the public at large and it gives added exposure for businesses for the purposes of a way of finding or identifying a certain property or a certain business at the property and that – that is the underlying objective with the policy.
[36] ts 64, 18 May 2021.
[37] ts 40, 18 May 2021.
The City further contends that, for the purposes of cl 2.4 of the Signage Policy, there are no exceptional circumstances which support approval of the signs. The City acknowledges that the signs have been on the subject site for a long time but considers this to be a neutral factor in determining the merits of the application and that it is not an exceptional circumstance. The City rejects the applicant's contention that location of the signs on a corner block (with frontage to three streets) is exceptional because it is not uncommon, unusual, special or out of the ordinary. For these reasons, the City also rejects the applicant's contention that the location of the signs in an industrial area and the presence of many other signs in the area should be considered exceptional circumstances.
An amendment is proposed to LPS 15 (Amendment No. 16) that will make third party advertising a prohibited use in all zones. Amendment No. 16 has been advertised[38] and, therefore, I find that it is a consideration to which I must give due regard under cl 67(2)(b) of the Deemed Provisions. The City contends that whilst Amendment No. 16 cannot be given substantial weight, it does evince an intention to strengthen the City's current policy against third party advertising. It is another reason that the City says that there should be no departure from the Signage Policy.[39]
[38] Supplementary Witness Statement of Wilmont Lik Yeow Loh, 12 May 2021, para 3.
[39] ts 87, 19 May 2021.
In addition, the Signage Policy provides in Column B of Table 1, 'iv. Wall Signs', that a wall sign must not cover more than 10% of the façade of a development site visible from the public realm. The City contends that the sign on the north-western façade of the building (facing Great Eastern highway) comprises 22.5% of the façade and, therefore, exceeds the development standard of 10% in the Signage Policy.[40] The applicant, however, observed that the building only has one tenancy and, therefore, based on the proportionate size of the signs, they do not cover more than 10% of the building's façade.[41]
Principles relating to the application of policy
[40] Respondent's amended SIFC, dated 20 January 2021, para 35.
[41] Applicant's amended SIFC dated 10 February 2021, para 28.
The development of government policy guides the exercise of statutory discretion and has the benefit of aiding consistency in decisionmaking: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 (Re Drake) at 644 (Brennan J). The existence of a policy is a factor to be taken into consideration but it cannot replace the discretion of the decision-maker. A policy cannot be inflexibly applied regardless of the merits of the particular case: Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37] citing Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 (Clive Elliot Jennings) at [24][26] (Barker J).
The legal principles relevant to the application of policy are set out in Clive Elliott Jennings at [25]-[26] in which Barker J referred to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 and Re Drake, among other authorities:
25Much has been written about the use of policy in administrative decision‑making. Administrators do not act unlawfully in adopting policies to structure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 illustrates. This principle aside, the importance of the use of "policies" in the exercise of discretionary planning powers in Western Australia is well recognised: see, eg, Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428.
26A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons': 644 ‑ 5.
As stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226:[42]
[I]f the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
[42] Marshall at [182].
In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100, the Tribunal adopted the criteria set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 at [51] for determining the weight to be given to a policy. The criteria included whether the policy is public (as opposed to secret) and conceived after considerable public discussion. The length of time that the policy has been in operation and whether it has been continuously applied are also relevant criteria. In the decision of Marsh and Commissioner of Police [2018] WASAT 139 at [27] and [39], the Tribunal found that the weight attached to a policy may be influenced by the extent of public consultation that preceded it and whether it originated from a political or departmental process.
It follows from these principles that I must take into consideration the relevant provisions of the Signage Policy in making my decision but those provisions cannot be applied inflexibly so as to replace the exercise of my discretion. I am entitled to depart from the application of the provisions of the Signage Policy if there is a sound basis or cogent reasons to do so having regard to the merits of the case.
Are there cogent reasons to depart from the Signage Policy?
The Signage Policy is a local planning policy to which the Tribunal must have due regard under cl 67(2)(g) of the Deemed Provisions. It was prepared under cl 4 of the Deemed Provisions and, therefore, it was required to be publicly advertised in accordance with cl 87 of the Deemed Provisions. The City contends that there are no cogent reasons to depart from the Signage Policy and, for the reasons already outlined, no exceptional circumstances to justify a departure.[43] In contrast, the applicant says that there are cogent reasons to depart from the Signage Policy because:[44]
1)the building on the subject site was constructed in or about 1960 and since that time the subject site has been used for a workshop, open air storage and third party advertising;
2)the use and development of the subject site is in keeping with its industrial planning intent for the zone and has been a longstanding contribution to the makeup of the area's industrial amenity;
3)advertising signs have been affixed to the building since its construction and, therefore, are part of the fabric that makes up the amenity of the surrounding area;
4)the third party nature of advertising content does not negatively impact the amenity of the surrounding area;
5)the content displayed is of a high quality design, is comparable in visual appearance to other large format signs in the locality and consistent with the highway commercial amenity of the locality; and
6)there are other examples of third party advertising in the surrounding area located on bus shelters and rubbish bins.[45]
[43] ts 88, 19 May 2020.
[44] Applicant's amended SIFC at [18]-[22].
[45] ts 112, 19 May 2021.
The applicant says that in the absence of a sound planning justification for the blanket opposition to third party advertising in the Signage Policy, the Tribunal should place little or no weight on it.[46] The applicant observed that the City has entered into contracts with third parties for the provision of bus shelters with third party advertising within the locality.[47]
[46] Applicant's amended SIFC at [27].
[47] ts 113, 19 May 2021.
Having regard to the contentions of the parties, I find, for the reasons that follow, that there is a sound basis to depart from the application of the Signage Policy.
First, I accept the evidence of Mr Caratti and Mr Fairfoul, and I find, that the signs have been affixed to a building that has been used for industrial purposes for approximately 60 years. Based on their evidence, which I accept, I find that the signs have displayed third party advertising since the early 1960s, before the Signage Policy was adopted by Council, and that the signs are part of the fabric that makes up the amenity of the area surrounding the subject site.
Second, I accept the evidence of Mr Caratti and Mr Loh, and I find, that the applicant had been issued with a notice from Council to remove the signs in the early 1990s but that this had never occurred.[48] Consequently, I find that the City was aware, in the early 1990s, that the signs were affixed to the building but has not taken action to remove them for approximately 30 years.
[48] Witness Statement of Mr John Michael Caratti, dated 27 November 2021, para 13; ts 72, 18 May 2021.
Third, the expert planning witnesses agreed, and I find, that the area surrounding the subject site has poor amenity, particularly visual amenity. It was evident from the site view (along Great Eastern Highway) that the locality is characterised by a large number of siterelated business signs on roofs and awnings, as well as third party advertising on bus shelters and rubbish bins. Consequently, based on the evidence of Mr Fairfoul, which I accept, I find that the display of signs with third party advertising will not detract from the present or likely future amenity of the locality.
Fourth, I find, based on the evidence of Mr Fairfoul, which I accept, that there is limited opportunity for passing motorists and pedestrians to view the signs due to their orientation and setback from Great Eastern Highway. Mr Loh did not support the display of third party advertising at the subject site but otherwise had no issue with the size of the signs.[49] I accept the evidence of the planning experts, and I find, that the dimensions of the signs are appropriate for the subject site and the locality. I further find, based on the evidence of Mr Fairfoul, which I accept, that signage on the subject site is limited compared with other properties in the locality.[50] There was also no dispute, and I find, that the signs have no moving parts, will display static images and are not internally illuminated. Having regard to these factors, I find that the display of third party advertising on the signs will not introduce visual clutter so as to interfere with pedestrians or passing motorists finding or identifying a specific property or business along Great Eastern Highway. This further supports my finding that the display of third party advertising will not detract from the present or likely future amenity of the locality.
[49] ts 63, 18 May 2021.
[50] Witness Statement of Sean Fairfoul, dated 27 November 2020, para 159.
Fifth, the signs are located on private property and not within the road reserve of Great Eastern Highway. If the modifications agreed by the parties are implemented, the signs satisfy the MRWA Policy. Consequently, for the above reasons, I find that any safety concerns arising from the display of third party advertising is not in issue.
Finally, I find that Amendment No. 16, which will have the effect of prohibiting third party advertising in all zones, is a matter to which I must have due regard but is not determinative.
Accordingly, I find that, in the circumstances of this case, there are cogent reasons to depart from the application of the Signage Policy. In any event, I find that the matters outlined above would amount to 'exceptional circumstances' for the purposes of cl 2.4 of the Signage Policy because, taken together, they are uncommon, unusual, special or out of the ordinary.
Would approval of the development set an undesirable precedent?
The City contends that the signs will set an undesirable precedent because:
1)it is not of itself unobjectionable in that it is noncompliant with the Signage Policy and will add to visual clutter;
2)there is more than a mere chance or possibility that there will be other undistinguishable applications for third party signage in the Industrial Zone generally, and adjacent to Great Eastern Highway in particular; and
3)there is more than a mere chance or possibility that there will be other undistinguishable applications for third party signage on properties adjacent to other regional roads within the scheme area.
The City relied on the evidence of Mr Loh who stated that there has been a number of enquiries about third party advertising on regional roads within the scheme area, including Great Eastern Highway.[51] It is Mr Loh's opinion that approval of the signs could precipitate a proliferation of third party signage in the locality and, therefore, add to visual clutter.[52]
[51] ts 47, 73-74, 18 May 2021.
[52] Witness Statement of Wilmot Lik Yeow Loh, dated 20 November 2020, para 56.
In contrast, the applicant contends that the subject site is zoned Industrial in which advertising signs, including third party advertising, are permissible and form part of the existing amenity of the locality. The applicant further contends that third party advertising signs have been a feature of the subject site since the building was constructed in around 1960. Because these circumstances are unique to the subject site and cannot be replicated in the locality, the applicant says that approval of the signs would not give rise to an undesirable precedent.
The applicant also rejects the City's contention that the signs will add to visual clutter. It is the applicant's position that the City has failed to put forward any support for its contention that the approval of advertising signs would result in more signs, over and above what would otherwise be erected by landowners and developers in the locality.
Findings undesirable precedent
In Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) the Tribunal, at [71]-[75], analysed a number of authorities relating to adverse planning precedent including Aspen Pty Ltd v State Planning Commission (unreported, Town Planning Appeals Tribunal of WA, Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170.
The Tribunal, in Nicholls, adopted the following criteria from Goldin & Anor v Minister for Transport (2002) 121 LGERA 101 (Goldin) as to the circumstances in which an undesirable precedent is a relevant consideration in a planning assessment. These are:[53]
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
[53] Goldin at [74].
In light of my earlier findings, I am not satisfied that the first criterion has been established and, therefore, I find that the issue of adverse planning precedent is not a relevant planning consideration in this proceeding. However, if I am incorrect in my finding that the signs are not in themselves unobjectionable, then it is necessary for me to consider whether there is more than a mere chance or possibility that there may be later undistinguishable applications.
For the purposes of determining if the second criterion has been satisfied, evidence must be presented to the Tribunal that identifies specific sites which are subject to the same or substantially the same planning framework and have undistinguishable characteristics. In Cornhill and Western Australian Planning Commission [2009] WASAT 9 (Cornhill), Barker J stated:[54]
In order to determine that there is more than a mere chance or possibility that there may be later undistinguishable applications, it is necessary to identify specific sites which are relevantly subject to the same or substantially the same planning framework and have undistinguishable characteristics including in terms of current or approved land use. While the Commission raised the issue of adverse planning precedent, it did not present evidence sufficient to enable such a finding to be made.
[54] Cornhill at [74].
It is Mr Loh's opinion that there is nothing to distinguish the subject site in the context of an urban transport corridor from another site in the same transport corridor.[55] Mr Loh referred to specific examples of sites along Great Eastern Highway where there is a possibility of similar applications for third party advertising.[56] However, I find that the sites identified by Mr Loh are distinguishable from the subject site because, despite their location on Great Eastern Highway, they are located in different zones and, therefore, have distinguishable characteristics in terms of land use.
[55] ts 76, 18 May 2021.
[56] ts 74-75, 18 May 2021.
Because of the substantial length of time the subject site has been used for third party advertising, I find that the circumstances of this application are unlikely to be replicated and, therefore, there is more than a mere chance or possibility that future applications for advertising signs will be distinguishable.
Consequently, I find that the second criterion of the test for undesirable precedent has not been met.
I further find that the potential for a proliferation of third party signs is not a valid reason to refuse a development application in circumstances where the criteria for undesirable precedent have not been met.[57] Any future applications for third party advertising along Great Eastern Highway would need to be assessed on their merits having regard to the applicable planning framework.
Conclusion
[57] Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 249 at [53].
I conclude that, having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, and weighing up my findings in respect of the issues for determination, the correct and preferable decision is to allow the application under s 252(1) of the PD Act because:
1)the advertising signs are not inconsistent with the objectives of the Industrial Zone under LPS 15;
2)there are cogent reasons, and a sound basis, in the particular circumstances of this case to depart from the Signage Policy; and
3)approval of the signs will not establish an undesirable precedent.
Accordingly, I will set aside the City's decision to refuse development application 517/2019 for advertising signs on the subject site and substitute a new decision approving the signs depicted in Annexure B subject to conditions.
In the event that the Tribunal determined that the application should be approved, the City proposed four without prejudice conditions which were accepted by the applicant.[58] I consider that the conditions agreed by the parties are appropriate in all of the circumstances.
[58] Respondent's amended draft 'without prejudice' conditions; Exhibit 5.
Orders
The Tribunal orders:
1.The application for review is allowed.
2.The decision of the respondent on 16 July 2020 to refuse development application 517/2019 for two advertising signs located at Lot 403 (515) Great Eastern Highway, Redcliffe is set aside and a decision is substituted that development approval is granted for the proposed development under the Metropolitan Region Scheme and City of Belmont Local Planning Scheme No 15 subject to the following conditions:
(a)The development/land use shall be in accordance with the signage plan prepared by Element dated 9 December 2019 and subject to any modifications required as a consequence of any condition(s) of this approval. The endorsed plan shall not be modified or altered without the prior written approval of the City of Belmont.
(b)Illumination of the signs must be of low level not exceeding 300cd/m2, not flash, pulsate or chase.
(c)The device shall not contain fluorescent, reflective or retro reflective colours or materials.
(d)Within 90 days following the date of this approval the applicant must make arrangements with Main Roads Western Australia with respect to the following traffic signs. Those arrangements must involve:
(i)moving Sign 1 further away from the relocated position of Sign 3, at the applicant's cost;
(ii)relocating Sign 3 further away from the intersection, to approximately the same distance as the first left turn arrow, at the applicant's cost; and
(iii)increasing the size and height of the main panel of Sign 4 (relating to Airport Terminals) so as to provide better guidance to motorists, at the applicant's cost.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
11 AUGUST 2021
ANNEXURE A
The Planning Framework
Metropolitan Region Scheme (MRS)
Under the MRS, the subject site is primarily zoned 'Urban', however, a portion of it is located within a regional road reserve.
Planning and Development Act 2005 (WA) (PD Act)
Section 252(1) of the PD Act provides:
Subject to subsection (3), if –
(a)under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has -
i.refused the application; or
ii.granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority’s decision.
City of Belmont Local Planning Scheme No 15 (LPS 15)
Clause 1.7 of LPS 15 provides:
1.7.1Unless the context otherwise requires words and expressions used in the Scheme have the same meaning as they have:
a) in the Planning and Development Act 2005; or
b) if they are not defined in that Act:
(i)in the Dictionary of defined words and expressions in Schedule 1; or
(ii) in the Residential Design Codes.
1.7.2If there is a conflict between the meaning of a word or expression in the Dictionary of defined words and expressions in Schedule 1 and the meaning of that word or expression in the Residential Design Codes:
a)in the case of residential development, the definition in the Residential Design Codes shall prevail; and
b) in any other case the definition in the Dictionary prevails.
1.7.3Notes, and instructions printed in italics, are not part of the Scheme.
Clause 3.2 of the LPS 15 sets out the objective of the 'Industrial' zone as follows:
The Industrial Zone is intended to provide for the industrial development of the Kewdale Industrial Estate and the Redcliffe Industrial Estate. The significance of the Kewdale Industrial Estate as a transport and logistics hub as part of the KewdaleHazelmere Integrated Masterplan is acknowledged. The City may approve a wide range of industrial activities within this zone subject to conditions designed to achieve a high standard of industrial environment.
Clause 3.4.2 of LPS 15 provides:
3.4.3If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations)
Schedule 2 to the LPS Regulations - Deemed Provisions
Clause 1 of the Deemed Provisions provides the following definition of the term 'advertisement':
advertisement means any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, that is used wholly or partly for the purposes of advertising, announcing or directing, and includes
(a)any hoarding or similar structure used, or adapted for use, for the display of advertisements; and
(b)any airborne device anchored to any land or building used for the display of advertising; and
(c)any vehicle or trailer or other similar object placed or located so as to serve the purpose of displaying advertising;
Clause 1 of the Deemed Provisions provides the following definition of the term 'amenity':
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
Clause 3(5) of the Deemed Provisions provides:
(5)In making a determination under this Scheme the local government must have regard to each relevant local planning policy to the extent that the policy is consistent with this Scheme.
Clause 4 of the Deemed Provisions sets out the procedure for making a local planning policy. Clause 4(1) of the Deemed Provisions provides:
(1)If the local government resolves to prepare a local planning policy the local government must, unless the Commission otherwise agrees, advertise the proposed policy as follows
(a)publish in accordance with clause 87 the proposed policy and a notice giving details of
(i) the subject and nature of the proposed policy; and
(ii) the objectives of the proposed policy; and
(iii)how the proposed policy is made available to the public in accordance with clause 87; and
(iv) the manner and form in which submissions may be made; and
(v) the period for making submissions and the last day of that period;
(b)if, in the opinion of the local government, the policy is inconsistent with any State planning policy, give notice of the proposed policy to the Commission;
(c)give notice of the proposed policy in any other way and carry out any other consultation the local government considers appropriate.
Clause 60 of the Deemed Provisions sets out the requirements for development approval.
A person must not commence or carry out any works on, or use, land in the Scheme area unless
(a)the person has obtained the development approval of the local government under Part 8; or
(b) development approval is not required for the development under clause 61.
Note:
1. Development includes the erection, placement and display of advertisements.
2.Approval to commence development may also be required from the Commission if the land is subject to a region planning scheme.
Clause 67(2) of the Deemed Provisions sets out the various planning matters to be considered when determining an application for development approval.
The relevant matters to be considered in the context of this application include but are not limited to:
…
(a)the aims and provisions of the Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(g) any local planning policy for the Scheme area;
…
(n)the amenity of the locality including the following -
(i) environmental impacts of the development;
(ii) the character of the locality[.]
…
(w) the history of the site where the development is to be located[.]
Clause 87 of the Deemed Provisions sets out the various requirements to be considered for making documents available to the public.
(1)This clause applies if under a provision of this Scheme the local government is required to publish in accordance with this clause a notice, plan, application or other document (the document).
(2)The local government must make the document available in accordance with the applicable requirements of subclauses (3) to (5).
Note for this subclause:
Under clause 88, the Commission may approve varied requirements that apply if it is not practicable for the local government to publish documents in accordance with subclauses (3) to (5).
(3) For all documents, the local government must
(a) publish on the website of the local government
(i) the document; or
(ii) a hyperlink to a webpage on which the document is published; and
(b)if it is reasonably practicable to do so make a copy of the document available for public inspection at a place in the district of the local government during normal business hours.
(4)If the document is a notice and the local government considers that it is appropriate in the circumstances for the notice to be published in a newspaper, the local government must also ensure that the notice is published in a newspaper circulating in the relevant locality in the local government district.
(5)The local government must ensure that the document remains published under subclause (3)(a) and (if applicable) available for public inspection under subclause (3)(b)
(a)if the document is published in compliance with a requirement that is expressed to be an ongoing publication requirement — at all times that the document is in effect; or
(b)if the document is published in compliance with a requirement to advertise for submissions under this Scheme during the whole of the period within which submissions may be made; or
(c)if paragraphs (a) and (b) do not apply during a period that the local government considers is reasonable.
City of Belmont - Advertisement Signs - Local Planning Policy No 12 (Signage Policy)
Clause 1 of Signage Policy provides:
This Local Planning Policy provides guidance on the assessment of advertisement signs within the City of Belmont. This Policy outlines when advertisement signs require development approval, and the objectives and standards against which the City will assess applications for advertisement signs.
In relation to the application of the Signage Policy, cl 2.1 to cl 2.4 of the Signage Policy provides:
2.1This Policy applies to all advertisement signs visible from the public realm within the City of Belmont Local Government Area.
2.2This Policy exempts advertisement signs from requiring development approval where the advertisement sign complies with the criteria listed in Column A of Table 1 and the Development Requirements listed in Part 6 of this Policy.
2.3Advertisement signs that fully comply with the criteria listed in Column B of Table 1 and the Development Requirements listed in Part 6 of this Policy are deemed acceptable and cannot be refused on that basis.
2.4Advertisement signs that do not comply with the criteria listed in Column B of Table 1 and the Development Requirements listed in Part 6 of this Policy, will be assessed against the objectives outlined in Part 3 of this Policy. Advertisement signs that do not comply with the objectives are deemed unacceptable and will not be supported unless exceptional circumstances exist.
Clauses 3.1 to 3.7 of the Signage Policy set out the objectives of the Signage Policy which are as follows:
3.1Ensure that advertisement signs are appropriate for their location, relate to the land and/or buildings for which they are placed, and do not adversely impact on the amenity of the surrounding area.
3.2Ensure advertising signage is of a scale appropriate to buildings, lot size and lot frontage/s of the site relevant to the application.
3.3Ensure that advertisement signs only advertise services offered and/or products produced, sold, and/or manufactured on the land or building/s related to the approved use/s taking place.
3.4 To ensure advertisement signs do not pose an unnecessary risk to the safety of people and vehicles by virtue of their location, design, use and function.
3.5To ensure that advertising signs are simple, clear, easy to read and maintained to a high standard.
3.6 Protect the cultural heritage significance of particular places and/or areas.
3.7To provide for the rationalisation of signage on properties with multiple advertising requirements.
Clause 6.1.1 of the Signage Policy states:
Advertisement signs shall only advertise services and products available on the premises to which it relates. Third party advertising is not permitted.
Table 1 -Advertisement Sign Requirements in the Signage Policy in relation to 'Wall Signs' provides as follows:
| SIGN TYPE | COLUMN A - EXEMPTED ADVERTISEMENTS | COLUMN B - DEEMED TO COMPLY |
| iv. Wall Signs An advertisement sign which is affixed to the external part of a wall of a building, a gable end, or a building façade and no part of which is above the roofline of the building. | N/A – All Wall Signs require development approval | Wall Signs shall: a) not extend laterally beyond either end of the wall or protrude above the top of the wall; and b) not cover more than 10% of the façade for each tenancy within a building and/or development site visible from the public realm; or c) where there is an approved signage strategy, not cover more than 25% of a façade within a building and/or development site visible from the public realm. |
ANNEXURE B
3
22
6