CARROODA PTY LTD and CITY OF GOSNELLS

Case •

[2022] WASAT 15

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   CARROODA PTY LTD and CITY OF GOSNELLS [2022] WASAT 15

MEMBER:   MS C BARTON, MEMBER

HEARD:   7 DECEMBER 2020, 17 AND 18 AUGUST 2021 AND 21 OCTOBER 2021

DELIVERED          :   22 FEBRUARY 2022

FILE NO/S:   DR 74 of 2020

BETWEEN:   CARROODA PTY LTD

AND

CITY OF GOSNELLS

Respondent


Catchwords:

Town planning - Development application - Exercise of planning discretion - Advertising sign - Digital sign - Hoarding - Third party advertising - Advertisement - Innominate use - Consistency with local signage policy - Whether cogent reason to depart from policy - Consistency with objectives of Light Industry zone - Character and amenity of the locality - Visual amenity

Legislation:

City of Gosnells Local Planning Scheme No 6, cl 1.6, cl 3.2, cl 3.4.2, cl 3.4.2(b), cl 4.12, cl 4.12.3, Sch 5
Evidence Act 1906 (WA)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 60, cl 61(1), cl 67, cl 90(2)
Planning and Development Act 2005 (WA), s 252(1), s 257(2), s 257B(3)
Planning Regulations Amendment Regulations 2020 (WA), Pt 2, reg 74(2), Pt 8, Pt 9
State Administrative Act 2004 (WA), s 17, s 18, s 24, s 27, s 27(1), s 29(3), s 32, s 32(1), s 32(2)(a), s 32(2)(b)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant : Mr P McQueen
Respondent : Mr D W McLeod

Solicitors:

Applicant : Lavan
Respondent : McLeods

Case(s) referred to in decision(s):

Adbooth Pty Ltd and City of Perth [2007] WASAT 76

Claude Neon Ltd v City of Perth (unreported, Supreme Court WA, Kennedy J, 31 July 1987)

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Phillips and Shire of Mundaring [2009] WASAT 193

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Ridgecity Holdings 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

  1. The applicant in these proceedings is Carrooda Pty Ltd (applicant).  On 17 March 2020, the City of Gosnells (respondent/City) refused the applicant's development application under the City of Gosnells Local Planning Scheme No 6 (LPS 6) for a 'Spectaculars' 18.99 metres x 4.45 metres double-sided LED pylon sign (proposed sign) at 1816 Albany Highway, Maddington (subject land).[1]

    [1] The subject land is also known as 3 (Lot 1000) Austin Avenue, Maddington.

  2. On 21 April 2020, the applicant commenced proceedings in the Tribunal to review the respondent's decision under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).  The final hearing of the proceedings commenced on 7 December 2020 but was adjourned for the purposes of a chaired conferral of the traffic engineers on 9 February 2021.  Following the chaired conferral, the applicant sought leave to amend its development application for the proposed sign, which included the removal of the south facing sign panel to address traffic safety issues.

  3. On 19 May 2021, I gave the applicant leave to amend its application on the basis that the amended proposal was substantially the same as that originally proposed.  A modified development application plan (DA­02 A) was filed with the Tribunal on 3 June 2021 (amended application).

  4. For the reasons set out in this decision, I find that the amended application, the subject of the review, should be dismissed.

Issues for determination

  1. The following key issues arise for determination by the Tribunal:

    1)Whether the proposed sign will have an unacceptable impact on the character and amenity of the locality?

    2)Whether the proposed sign is consistent with the provisions of Local Planning Policy 4.9 - Signage and Flags dated 11 June 2020 (Signage Policy)?

    3)If the answer to 2) is in the negative, whether there are cogent reasons to depart from the Signage Policy?

The proposed sign

  1. The proposed sign is approximately 4.45 metres in height, 18.99 metres in width, and 0.54 metres in depth and will be mounted on two steel columns.  The maximum overall height of the proposed sign above ground level will be 12 metres.

  2. The LED light source will illuminate as follows:[2] 

    -    daytime - 6000cd/m2

    -    dawn/dusk - 600cd/m2

    -    night - 300cd/m2

    [2] Respondent's substituted Statement of Issues Facts and Contentions (SIFC) dated 14 June 2021, para 2.21; Applicant's substituted SIFC dated 25 June 2021, para 20.

  3. The proposed sign will cycle through a series of static third party advertisements, with a dwell time on each advertisement of approximately 40 seconds and a frame frequency of greater than 60 Hz.[3]  It will not be illuminated externally.[4]

    [3] Respondent's substituted SIFC dated 14 June 2021, para 2.21; Applicant's substituted SIFC dated 25 June 2021, para 17.4.

    [4] Respondent's s 24 bundle dated 7 September 2020, page 99; Proposed LED Advertising Sign, Bunnings Maddington, Albany Highway, Road Safety Assessment, page 2.

  4. The proposed sign will be located in the extreme south-east corner of the subject land, approximately 1 metre from the south-east boundary of the subject land and approximately 0.8 metres from the boundary with the Albany Highway reserve. 

The subject land and the locality

  1. The subject land is located at the junction of Albany Highway, Austin Avenue and Kenwick Link.  It is approximately 2.61 hectares in area and is formally described as Lot 1000 on Diagram 91945, being the whole of the land in Certificate of Title Volume 2092, Folio 890.

  2. The subject land is zoned 'Light Industry' under LPS 6, and 'Urban' under the Metropolitan Region Scheme (MRS).  Located on the subject land is a large 'L' shaped Bunnings warehouse, which is orientated to address the street junction of Albany Highway and Austin Avenue.  A carpark is located forward of the Bunnings warehouse, between the warehouse and Albany Highway.

  3. A residential area is located on the opposite side of Albany Highway to the subject land.

  4. The subject land is located approximately 2.9 kilometres from the Gosnells Town Centre and approximately 17 kilometres from the Perth Central Business District.

The Tribunal's review jurisdiction

  1. By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the amended 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).[5]

    [5] Section 18, SAT Act.

  2. The Tribunal is to review the respondent'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.[6]

    [6] Section 27, SAT Act.

  3. 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[7] 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.[8]

    [7] Section 32(2)(a), SAT Act.

    [8] Section 32(1), SAT Act.

  4. The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[9]  The Tribunal is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[10] 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.

The conduct of the hearing and expert evidence

[9] Section 27(1), SAT Act.

[10] Section 32(2)(b), SAT Act.

  1. Each party filed with the Tribunal and gave to the other party a SIFC and a substituted SIFC to address matters arising from the amended application. The respondent filed a bundle of documents under s 24 of the SAT Act dated 7 September 2020 and an amendment to the bundle comprising the approved plans for a showroom development on the subject land (respondent's s 24 bundle).  The applicant filed its bundle of documents on 6 October 2020 (applicant's bundle).

  2. The applicant relied on the evidence of Mr Nikolas Hidding, who is the Managing Director of Peter Webb & Associates and has over 10 years' experience as a qualified town planner.  Mr Hidding was involved in the preparation of the development application and was engaged by the applicant as an expert witness in the proceedings.  Mr Hidding prepared a witness statement dated 16 July 2021.  The applicant also relied on the evidence of Mr Benjamin Doyle who is a Director of Planning Solutions (Aust) Pty Ltd and has 20 years' experience in urban and regional planning.  Mr Doyle was engaged by the applicant as an expert witness in the proceedings and prepared a witness statement dated 19 July 2021.

  3. The respondent relied on the evidence of Mr Brenton Scambler who is Coordinator Planning at the City.  Mr Scambler has 15 years' experience as a local government planner.  He prepared a witness statement dated 16 July 2021.

  4. The proceedings were heard on 7 December 2020, 17 and 18 August 2021, and 21 October 2021.  The Tribunal had the benefit of a site view on 17 August 2021 which, for ease of reference, the expert witnesses divided into four locations comprising the site of the proposed sign and adjoining/adjacent land (Location 1), the intersection of Burslem Drive and Albany Highway and the walk through of Coralyn Villas (Location 2), the walk from Burslem Drive along Albany Highway to the intersection of Kenwick Link and Austin Avenue, and northwest along Kenwick Link (Location 3), and the residential properties located on Aldinga Street and the vacant residential zoned land (Location 4).[11]

The planning framework

[11] Site view conferral statement of the expert witnesses, including site view location plan (Exhibit 15).

  1. Extracts from the relevant planning framework, which I have considered in determining the amended application, are included in Annexure A to these reasons.  The relevant planning framework includes, but is not limited to, the following:

    1)Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations)

    2)MRS

    3)LPS 6

    4)Signage Policy

    5)Draft City of Gosnells Local Planning Scheme No 24 (Draft LPS 24)

The Tribunal's consideration

  1. By operation of s 257(2) of the PD Act, Sch 2 to the LPS Regulations (Deemed Provisions) has effect and may be enforced as part of LPS 6.

  2. The expression 'advertisement' is not defined in LPS 6 but 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[.]

  3. Clause 4.12 of LPS 6 provides that the erection, placement and display of advertisements and the use of land or building for that purpose is development within the definition of the PD Act requiring, except as otherwise provided, the prior development approval of the Council. Further, pursuant to 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 first obtained development approval under LPS 6, or the development is exempt under cl 61(1) of the Deemed Provisions, including the exempted advertisements listed in Sch 5 to LPS 6.[12]

    [12] Item 10 and 21 of the Table in cl 61(1) of the Deemed Provisions. Appendix 2 to the Signage Policy contains a list of the exempted advertisements.

  4. There was no dispute, and I find, that the proposed sign is characterised as an 'advertisement' for the purposes of the definition in cl 1 of the Deemed Provisions, and that commercial (or third party) advertising constitutes an independent use of land.[13] There was also no dispute, and I find, that under cl 60 of the Deemed Provisions and cl 4.12 of LPS 6 the works component of the proposed sign requires development approval under LPS 6 and is not exempt from approval under cl 61(1) of the Deemed Provisions.

    [13] See Claude Neon Ltd v City of Perth (unreported, Supreme Court WA, Kennedy J, 31 July 1987) at 16.

  5. I will next consider whether the proposed sign is capable of approval under LPS 6.

'Advertisement' as a use not listed in the Zoning Table

  1. The use of land for an 'advertisement' is not specifically mentioned in the Zoning Table of LPS 6 for the Light Industry zone in which the subject land is located.  Clause 3.4.2 of LPS 6 applies to a use not listed or an innominate use.  It provides:

    If 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 64 of the Planning and Development (Local Planning Scheme) Regulations 2015 Schedule 2 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.

  2. The objective of the Light Industry zone, under LPS 6, is to provide for light and service industries and associated uses.[14]

    [14] LPS 6, cl 3.2.

  3. The applicant contends that third party advertising is an 'associated use' and, therefore, consistent with the objective of the Light Industry zone.  In support of its position, the applicant relied on the evidence of Mr Doyle.  In Mr Doyle's opinion, an 'advertisement' is an 'associated use' because it is compatible or capable of existing in harmony with other uses in the Light Industry zone.[15]

    [15] ts 212, 21 October 2021.

  4. The respondent does not consider that third party advertising is consistent with the objective of the Light Industry zone because it is not of an industrial nature or something akin to an industrial use.  In support of its position, the respondent relied on the evidence of Mr Scambler who was of the opinion that an advertisement that directly relates to or promotes a light or service industry business would be an associated use but not necessarily third party signage.[16]

    [16] Substituted witness statement of Brenton Scambler dated 16 July 2021, paras 6.7-6.8; ts 209, 21 October 2021.

  5. There was no dispute, and I find, that 'advertisement' is a use not listed in the Zoning Table and, therefore, cl 3.4.2 of LPS 6 applies to the use of the subject land for the proposed sign.  In assessing the proposed sign against the Light Industry zone objectives, I do not consider it necessary to determine whether third party advertising is an 'associated use'.  I accept the evidence of Mr Doyle, and I find, that an 'advertisement' displaying third party advertising is not inconsistent with the objectives of the Light Industry zone because third party advertising is compatible or capable of existing in harmony with other uses in the Light Industry zone.[17]  Consequently, I will treat the proposed sign as a discretionary use because an 'advertisement' displaying third party advertising is a use that 'may be consistent with' with the objectives of the Light Industry zone for the purposes of cl 3.4.2(b) of LPS 6.

Factors relevant to the determination of the application

[17] On the meaning of 'consistent with', see WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153 at [56] citing Phillips and Shire of Mundaring [2009] WASAT 193 at [20]-[21].

  1. In considering the amended application for development approval under LPS 6, I am required to have due regard to the matters set out in cl 67 of the Deemed Provisions to the extent that they are relevant to the proposed sign that is the subject of the amended application.[18]  The matters that are relevant to my determination include, but are not limited to the following:

    a)the aims and provisions of LPS 6;

    b)the requirements of orderly and proper planning;

    c)any local planning policy for the Scheme area, which includes the Signage Policy;

    d)the compatibility of the development with its setting including the relationship of the development to the development on adjoining land or on land in the locality including, but not limited to, the likely effect of the height, bulk, scale and orientation and appearance of the development;

    e)the amenity of the locality including, amongst other matters, the character of the locality; and

    f)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals.

    [18] Regulation 74(2) of Pt 2 of the Planning Regulations Amendment Regulations 2020 (WA) (Amendment Regulations), which came into operation on 15 February 2021, amended cl 67 of the Deemed Provisions. However, cl 90(2) of the amended Deemed Provisions provides that amendments to Pt 8 and Pt 9 made by the Amendment Regulations do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made before 15 February 2021, cl 67 of the former Deemed Provisions applies in this case.

  2. Pursuant to cl 4.12.3 of LPS 6, I must examine the amended application for the proposed sign in light of the aims or objectives of LPS 6 and with particular reference to the character and amenity of the locality within which it is to be displayed.  Clause 4.12.3 of LPS 6 provides:

    4.12.3Consideration 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 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.

    (Emphasis added)

  3. Relevantly, the aims or objectives in cl 1.6 of LPS 6 include:

    …

    (c)To encourage the development of businesses which will strengthen the economic base of the district and provide convenient and efficiently located employment to the community.

    (d)To ensure the orderly and proper use and development of land within the District.

    (e)To protect and enhance the quality of the urban and rural living environments of the District, and to provide for such expansion as is consistent with the maintenance of the services and amenities of the District required by the community.

    (f)To promote the health, safety, convenience and the economic and general welfare of the community.

    (g)To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment[.]

    (Emphasis added)

  1. By operation of s 257B(3) of the PD Act, if there is an inconsistency between the Deemed Provisions and a provision of LPS 6, the Deemed Provisions prevail and the other provision is, to the extent of the inconsistency, of no effect. I find that cl 4.12.3 of LPS 6 is not inconsistent with cl 67 of the Deemed Provisions because, under the latter provisions, I must have due regard to the aims or objectives of LPS 6 and the character and amenity of the locality in determining the application.

The character and amenity of the locality

  1. I must, in considering the amended application, have due regard to the existing and future amenity of the locality including, relevantly, the character of the locality.[19] 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'.

    [19] Deemed Provisions, cl 67.

  2. Also, pursuant to cl 4.12.3 of LPS 6, I am required to examine the application for the proposed sign in the light of the objectives of LPS 6 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 the amenity of adjacent areas which may be affected.

  3. 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.[20]  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:

    … 'the 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 [Town Planning Appeal] 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'.

    [20] Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [70].

  4. In Ridgecity Holdings 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[.]

  5. I will next consider the delineation of the locality for the purposes of assessing its character and determining its existing and likely future amenity.

The immediate locality

  1. In Mr Doyle's opinion, the locality for consideration of the proposed sign comprises two elements.  First, the context in which viewers 'experience' the sign and, second, the immediate surrounding area within which the proposed sign will be visible and, therefore, directly relevant to its impact on visual amenity (immediate locality).[21]

    [21] Witness statement of Ben Doyle dated 19 July 2021, para 17.

  2. The experts agreed that the immediate locality, from which the proposed sign is likely to be visible, includes the adjacent residential land on the southern side of Albany Highway comprising the grouped dwellings at 208 Burslem Drive (known as the Coralyn Villas), the grouped dwellings at 2 Attfield Street (adjacent to Coralyn Villas) and the single houses at No 42, No 44, No 46 and No 50 Aldinga Street.  The experts also agreed that the immediate locality, from which the sign is likely to be visible, includes the adjoining light industrial area comprising the highway commercial businesses at 1803 Albany Highway and 1808 Albany Highway.[22] 

    [22] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.1; Witness statement of Nikolas Hidding dated 16 July 2021, para 19; paras 60-63; Witness statement of Ben Doyle dated 19 July 2021, para 22.

  3. Based on the expert evidence, I find, that the delineation of the immediate locality for the purposes of determining the amenity impact of the proposed sign extends to the adjacent residential land on the southern side of Albany Highway and the adjoining highway commercial businesses in the light industrial area.  The immediate locality includes, but is not limited to, the area that was traversed during the site view.  I observe that whilst the site view conferral statement of the expert witnesses describes the locations of the site view it does not specifically delineate the locality.

  4. There was no dispute, and I find, that the proposed sign is located approximately 45 metres from the nearest residential dwelling.[23]  There was also no dispute, and I find, that the nearest dwelling will be located at a 90-degree angle to the sign panel and, therefore, outside the viewing angle of the proposed sign.[24]

    [23] Respondent's substituted SIFC, para 2.30; Applicant's substituted SIFC, para 27.

    [24] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.3; ts 153, 18 August 2021.

  5. The other residences that form part of the immediate locality are between approximately 50 to 80 metres (208 Burslem Drive) and approximately 160 to 180 metres (42-46 Aldinga Street) respectively from the proposed sign.[25]  There was no dispute, and I find, that the outdoor living areas of 11 villas at 208 Burslem Drive are adjacent to Albany Highway, some of which will be within the viewing angle of the proposed sign, but are afforded screening by boundary fences and vegetation.[26]  I further find, based on the evidence before me, that the outdoor living areas of the residences at 42-46 Aldinga Street will be at approximately 45 to 55­degree angle from the sign panel[27] and, therefore, within the viewing angle of the proposed sign.  There was also no dispute, and I find, that the dwellings along Aldinga Street have a 1.8 metre high boundary fence running along the rear boundary of the properties.

The current and likely future amenity of the immediate locality

[25] Respondent's substituted SIFC, para 2.30; Applicant's substituted SIFC, para 27.

[26] Exhibit 15, page 3; ts 154, 18 August 2021.

[27] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.3.

  1. Mr Doyle described the immediate locality as a degraded urban environment, mainly due to the appearance and condition of buildings, the use of front setbacks for vehicle parking and signage, large areas of open and unscreened car parking and storage, limited landscaping, and high traffic highway road design.[28]  Mr Doyle provided the following description of the immediate locality:[29]

    … The Albany Highway strip has a low quality visual amenity - buildings are utilitarian, setback areas are used for vehicle parking and signage, and there is little landscaping in the private or public realm.  The environment is hostile to pedestrians, with little shade or shelter, and few safe locations to cross the wide, busy road.  With regard to the residential areas on the southern side of Albany Highway, the amenity they enjoy is obtained by 'turning their back' on Albany Highway, and also as a result of the large mature trees along the short stretch of verge opposite the subject site.

    [28] Witness statement of Ben Doyle dated 19 July 2021, para 57.

    [29] Witness statement of Ben Doyle dated 19 July 2021, para 28.

  2. Mr Hidding observed that the immediate locality contains light industrial and commercial activity and a range of signage.[30]  He further observed that the residential properties on the southern side of Albany Highway are exposed to high levels of activity and, at night, light spill from street lighting, car headlights, and illuminated commercial business advertising.[31]

    [30] Witness statement of Nikolas Hidding dated 16 July 2021, para 86.

    [31] Witness statement of Nikolas Hidding dated 16 July 2021, para 59.

  3. In respect of the range of existing signage in the immediate locality, Mr Doyle observed:[32]

    … Perhaps more than any other feature the area is characterised by a substantial amount of signage, with most premises displaying multiple signs of varying types, including pylon signs, hoardings, wall signs, portable signs, sale signs, and various other signs defined in Council's Local Planning Policy.  This is particularly the case for the self storage and motor vehicle sales premises, of which there are several, which display a large number and wide variety of signs.  There are also a very large number of other signs not contemplated by the policy, including advertising flags/banners, signs affixed to fences, advertising signage on vehicles parted on premises, bus shelter advertising signs, illuminated street signs with advertising boxed, and directional advertising signs[.]

    [32] Witness statement of Ben Doyle dated 19 July 2021, para 23.

  4. Mr Scambler acknowledged that there are many signs and flags in close proximity to the proposed sign.  However, he observed that, other than third party advertising on bus shelters, rubbish bins and road direction signs, the signs in the immediate locality directly relate to the businesses operating on the premises.[33]

    [33] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.9.

  5. In relation to the effect of Draft LPS 24, the respondent did not consider that the proposed zoning changes[34] would significantly alter the land use character of the area.  Mr Doyle and Mr Hidding agreed with the respondent's position.[35]  In Mr Doyle's opinion, the future amenity of the immediate locality would most likely remain more or less as it currently exists, with the exception of the subject land which he observed had been approved for redevelopment as showrooms, including façade signage.[36]

    [34] Draft LPS 24 proposes rezoning parts of the Albany Highway strip from Light Industry and Mixed Business to Service Commercial and Mixed Use, and rezoning the residential lots between Aldinga Street and Burslem Drive to R100:  Witness statement of Ben Doyle dated 19 July 2021, paras 31-32.

    [35] Witness statement of Ben Doyle dated 19 July 2021, para 31; Witness statement of Nikolas Hidding dated 16 July 2021, para 81.

    [36] Witness statement of Ben Doyle dated 19 July 2021, para 33.  Condition 6 of the development approval dated 20 September 2021 requires the preparation of a Signage Strategy detailing the dimensions, construction and artwork of all proposed signage to be submitted for approval of the City prior to occupation or use of the showroom development:  Exhibit 16.

  6. I accept the evidence of Mr Doyle and Mr Hidding, and I find, that the existing character of the immediate locality is a degraded urban environment, with light industrial and commercial activity, and a range of existing signage.  I further find that the Albany Highway strip has low quality visual amenity and that the amenity enjoyed by the residential areas in the immediate locality is achieved by 'turning their back' on Albany Highway.

  7. In relation to the future amenity of the immediate locality, I find that it is likely to remain substantially the same as that which currently exists.  However, I accept the evidence of Mr Doyle, and I find, that the character of the subject land will likely change in the future if the approved showroom development with façade signage is progressed.[37]

Summary of parties' contentions and expert evidence on amenity impacts

[37] Amendment to development approval - 3 (Lot 1000) Austin Avenue, Maddington - Showrooms, dated 20 September 2021 (Exhibit 16).

  1. The respondent contends that the proposed sign would be detrimental to the amenity of the immediate locality because of its size, scale, bulk and height, and because the proposed display of third party advertising may have no relevance to any business, use or occupier on the subject land.[38]  The respondent further contends that the amenity of the immediate locality would be detrimentally affected because it is an illuminated sign and because the message on the illuminated panel will change every 40 seconds.  Whilst the respondent acknowledges that advertising will only appear on the panel facing southbound traffic, it is concerned that the presence of the double-sided structure would be detrimental to the amenity of the immediate locality.[39]

    [38] Respondent's substituted SIFC dated 14 June 2021, para 3.2.

    [39] Respondent's substituted SIFC dated 14 June 2021, para 3.2.

  2. In support of its position, the respondent relied on the evidence of Mr Scambler who considered the amenity impact of the proposed sign on the adjacent residential land, and in the context relative to the adjoining light industrial area. 

  3. In Mr Scambler's opinion, the residences located 50 metres to 80 metres from the proposed sign (208 Burslem Drive) will have a partially interrupted view of the signage panel with several trees within the Albany Highway road reserve obscuring some of the panel.[40]  However, Mr Scambler stated that those residences located at 160 to 180 metres distance from the proposed sign (42-46 Aldinga Street) will have an uninterrupted direct line of view of the signage panel from their outdoor living areas.[41]  In his opinion, the visual amenity and use and enjoyment of outdoor living areas of these residences will be negatively impacted by the proposed sign.[42]  

    [40] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.4; ts 174, 18 August 2021.

    [41] ts 152, 18 August 2021.

    [42] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.5.

  4. Mr Scambler observed that it is not possible to determine the full extent of lighting impacts of the proposed sign because of the limited nature of the lighting impact assessment referenced in Mr Hidding's expert witness statement.[43]  Although the assessment purports to demonstrate compliance with AS 4282-1997: Control of Obtrusive Effects of Outdoor Lighting, it did not provide for a 'residential exclusion zone' which Mr Scambler had observed in lighting impact assessments conducted for similar dimensioned signs.[44]

    [43] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.7.  Witness statement of Nikolas Hidding dated 16 July 2021, para 74, attachment NH4.

    [44] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.7.

  5. In relation to the impact of the proposed sign on the adjoining light industrial area, Mr Scambler is of the opinion that it will be a significant and dominant feature in the landscape, having regard to the nature and size of the surrounding development.[45]  Mr Scambler observed that the light industrial area is, with the exception of the current Bunnings warehouse, characterised by relatively small-scale buildings and that the proposed sign is equal to or larger than the primary façade of the adjoining building, and elevated.[46]  In Mr Scambler's opinion, the impact of the proposed sign is increased due to the bulky nature of the double-sided structure, with the south facing panel proposed to have a colorbond steel cover.[47]

    [45] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.8; ts 147, 18 August 2021.

    [46] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.8.

    [47] Substituted witness statement of Brenton Scambler dated 16 July 2021, para 8.12.

  6. In contrast, the applicant contends that the proposed sign would not have an unreasonable impact on the existing or future amenity of the immediate locality. In support of its position, the applicant placed reliance on the policy statement in cl 1 of the Policy and Application for Advertising Signs Within and Beyond State Road Reserves, Main Roads Western Australia, September 2020 (Main Roads Policy) which refers to the role of Main Roads in ensuring that advertising does not adversely impact the visual amenity of the roadside environment and surrounding area.  The applicant contends that the proposed sign would not unreasonably impact the amenity of the immediate locality because it is less than the maximum industry dimensions of 85m2 provided in the Main Roads Policy, a matter to which the applicant says I must have due regard.[48]

    [48] ts 16, 7 December 2020.

  7. It is the applicant's position that, in addition to the Main Roads Policy, the location of the proposed sign in a Light Industry zone and the objectives of the zone are relevant to my determination.[49]  In support of its position, the applicant relied on the evidence of Mr Hidding and Mr Doyle.

    [49] ts 17, 7 December 2020.

  8. In Mr Hidding's opinion, a digital advertisement in the form and height proposed is not out of context in this environment.[50]  He stated that the proposed sign is below the height approved for the showroom development which will have a façade height of 15 metres.[51]  Mr Hidding observed that the size and height of the approved showroom development is an indication that the subject land can accommodate large-scale development.[52]  He also observed that the subject land fronts Albany Highway and is within an area that contemplates activity day and night.[53]  Because the subject land is not located in a homogenous or pristine locality, Mr Hidding is of opinion that the proposed sign must be considered in that context.[54]

    [50] Witness statement of Nikolas Hidding dated 16 July 2021, para 86.

    [51] Witness statement of Nikolas Hidding dated 16 July 2021, para 87.

    [52] Witness statement of Nikolas Hidding dated 16 July 2021, para 88.

    [53] Witness statement of Nikolas Hidding dated 16 July 2021, para 90.

    [54] Witness statement of Nikolas Hidding dated 16 July 2021, para 71.

  9. In Mr Doyle's opinion, the principal consideration for amenity impacts of the sign relate to the potential impact on the private amenity for residents on the southern side of Albany Highway.[55]  Mr Doyle did not consider that the content of the proposed sign, that is, whether it is advertising goods and services related to the subject land, or displaying third party advertising, had any relevance to its impact on visual amenity.[56]

    [55] Witness statement of Ben Doyle dated 19 July 2021, para 58.

    [56] Witness statement of Ben Doyle dated 19 July 2021, para 61.

  10. In relation to the nearest dwelling at 208 Burslem Drive, Mr Doyle considered that the residents would have little or no line of sight to the proposed sign due to the location and orientation of the sign, the orientation of the dwellings, and the large mature trees along the southern side of Albany Highway.[57]  In relation to the dwelling at 42 Aldinga street, Mr Doyle considered that a shed in the north-eastern corner of the backyard would substantially or completely obstruct line of sight between the dwelling and the sign, from what appears to be the main outdoor living area.[58]  Mr Doyle did not attend the dwellings on Aldinga Street and, therefore, was unable to conclude whether the residents of the dwellings would have a line of sight to the sign above the boundary fence.  However, he considered that the dwellings at 46 and 50 Aldinga Street are likely to have an oblique view of the proposed sign due to the orientation of the dwellings.[59]

    [57] Witness statement of Ben Doyle dated 19 July 2021, para 58.

    [58] Witness statement of Ben Doyle dated 19 July 2021, para 59.

    [59] Witness statement of Ben Doyle dated 19 July 2021, para 58.

  11. Mr Doyle concluded that, taking into account the established character of the subject land (which he observed contains large structures and prominent signage) and the wider locality (which he observed is characterised by an abundance of signage), the proposed sign would have a negligible impact on the visual amenity of the residential areas on the southern side of Albany Highway.[60]  However, in Mr Doyle's opinion, it would be appropriate to restrict the luminance of the digital sign during night­time hours, a matter that he considered could be addressed by appropriate conditions.[61]

Findings - visual amenity impact

[60] Witness statement of Ben Doyle dated 19 July 2021, para 61.

[61] Witness statement of Ben Doyle dated 19 July 2021, para 62.

  1. It is the applicant's contention that the proposed sign would not unreasonably impact the amenity of the immediate locality because, at 84.51m2, it is less than the maximum industry dimensions of 85m2 provided in the Main Roads Policy.  The Signage Policy provides a maximum area for a hoarding of 18m2.

  2. Whilst I accept that the Main Roads Policy is relevant to my determination because the proposed sign will be located in the roadside environment, I find that its primary focus is on road traffic safety and the avoidance of hazards from advertising to road users. Notwithstanding the 'motherhood' statement in cl 1 of the Main Roads Policy captures visual amenity considerations, I am not persuaded that its provisions supplant the provisions of the Signage Policy which has been drafted by the City to provide planning guidance for the assessment and determination of applications for signs in the Scheme area. Consequently, I will afford greater weight to the development controls in the Signage Policy, that include a maximum area of 18m2 for a hoarding.

  3. I accept the evidence of Mr Doyle and Mr Hidding, and I find that the residents on the southern side of Albany Highway at Location 2 (Coralyn Villas at 208 Burslem Drive) are unlikely to suffer any significant decline in visual amenity from the proposed sign during the day because of the vegetation screening to Albany Highway.  I further find, based on the evidence of Mr Doyle which I accept, that the residences at Location 4 (along Aldinga Street) are orientated away from the proposed sign and are unlikely to have a direct line of sight to it from their outdoor living areas above the boundary fence during the day.  However, for the reasons that follow, I find that the proposed sign will have an unacceptable impact on the current and likely future character and amenity of the immediate locality.

  4. First, I accept the evidence of Mr Scambler, and I find that the proposed sign will be visually dominant in the landscape, having regard to the nature and size of current development on the subject land and in the context of the surrounding light industrial development.  Whilst I accept that the subject land contains large structures and prominent signage and has development approval for showrooms of significant bulk and scale, I find that the immediate locality is characterised by relatively small­scale commercial and residential buildings.  I further find, based on the evidence of Mr Scambler which I accept, that the double-sided structure of the proposed sign, which will present as a 'blank canvas' on its south facing panel, will contribute to its bulky nature.

  5. Second, although I have concluded that the use of the proposed sign for third party advertising is not inconsistent with the objective of the Light Industry zone, the potential amenity impact of the proposed sign is not limited to this consideration but must be assessed having regard to the character of the immediate locality of which the subject land forms part.  Whilst I accept the evidence of Mr Hidding and Mr Doyle that the immediate locality is not homogenous or pristine, I nevertheless find that adding a dominant illuminated structure to the landscape, whether or not it displays third party advertising, will detract from the existing amenity of an already degraded urban environment.  LPS 6 aims to protect and enhance the quality of the urban living environment of the Scheme area.[62]  For the reasons stated above, I find that the proposed sign will not enhance the urban living environment of the immediate locality and, therefore, its close proximity to a residential area is inconsistent with this aim.

    [62] LPS 6, cl 1.6(e).

  6. Third, there was no dispute, and I find, that the proposed sign is in keeping with the scale of the approved showroom development on the subject land, and is proposed to be below the façade height of the showroom development.  However, based on the evidence of Mr Scambler which I accept, I find that the proposed sign is inconsistent with the likely future character and amenity of the immediate locality which is unlikely to change from that which is currently characterised by small-scale commercial and residential buildings.

  7. Finally, I find, based on the evidence of Mr Scambler which I accept, that a limited assessment was conducted by the applicant of the impact of the proposed sign in night mode on residences in the immediate locality.  It is the applicant's position that any adverse amenity impact from light spill at night can be addressed by a condition requiring the preparation of a sign lighting management plan to ensure compliance with AS 4282-1997:  Control of Obtrusive Effects of Outdoor Lighting which the applicant says will deal with dwell times, periods of illumination and times that the sign is not illuminated.[63]  However, I find that the illumination of the proposed sign and potential for light spill at night is not an incidental aspect of the development, particularly having regard to the close proximity of the residential area on the south side of Albany Highway.  For this reason, I am not satisfied that the assessment of the impact of illumination from the proposed sign on the visual amenity of residences in the immediate locality is a matter that can be deferred for later consideration by way of a condition requiring the preparation of a management plan.  Because the lighting impact assessment conducted by the applicant was limited, I find that it is not possible to accurately determine the nature and extent of any disruption to the visual amenity of residences in the immediate locality from light spill at night.

The consistency of the proposed sign with the Signage Policy

[63] ts 30-31, 17 August 2021.

  1. The City has adopted the Signage Policy which applies to signs and flags that require development approval under LPS 6.

  2. The Signage Policy has several objectives, including that signage only relate to the services and products on the site.  Under cl 4.5 of the Signage Policy, third party advertising is not permitted.  Another objective of the Signage Policy is to encourage the rationalisation of signage on individual premises.  All signage in the Scheme area,[64] must comply with the relevant criteria specified in Table 1 or 2 of the Signage Policy unless otherwise determined by Council.  Table 2 of the Signage Policy provides that in commercial/industrial areas, the maximum dimensions of a hoarding are 6 metres in height, 3 metres in width and 0.5 metres in depth.  Under the Signage Policy, only one hoarding is permitted per property.

    [64] Except the Maddington Kenwick Strategic Employment area.  The subject land does not form part of this area:  Substituted witness statement of Brenton Scambler dated 16 July 2021, para 7.6.

  3. A 'hoarding' is defined in Appendix 1 to the Signage Policy as 'a sign which is affixed to a structure having one or more supports and where the overall height of the sign (inclusive of any supports) is less than the overall width of the sign'.  There was no dispute, and I find, that the proposed sign is a 'hoarding' for the purposes of the Signage Policy because its overall height of approximately 12 metres is less than its overall width of 18.99 metres.[65] 

    [65] Respondent's substituted SIFC dated 14 June 2021, para 2.17; Applicant's substituted SIFC dated 25 June 2021, para 18.1.

  4. Consequently, I find, that the Signage Policy is relevant to my determination under cl 67 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.

Summary of the parties' contentions

  1. The respondent observed that the overall height of the proposed sign is 12 metres, which is double the maximum height for a hoarding under the Signage Policy.[66]  The respondent also observed that the maximum area of a hoarding under the Signage Policy is 18m2, while the proposed sign is nearly five times that area at 84.51m2.[67]  If the proposed sign was approved, the respondent says it would be the only third party advertising in the immediate locality, other than the small static messages on bus shelters, rubbish bins and street signs.[68]

    [66] Respondent's substituted SIFC dated 14 June 2021, para 2.18.

    [67] Respondent's substituted SIFC dated 14 June 2021, para 2.18.

    [68] Respondent's outline of closing submissions, dated 21 October 2021, para 2.6.

  2. The applicant accepts, and I find, that the dimensions of the proposed sign are a departure from the provisions of the Signage Policy.[69]  However, the applicant observed that the Signage Policy does not address the development of digital advertising signs.[70] 

    [69] Applicant's substituted SIFC dated 25 June 2021, para 19.

    [70] Applicant's substituted SIFC dated 25 June 2021, para 18.2.

  3. The applicant contends that the aspects of the Signage Policy with which the proposed sign does not comply are not based on sound planning principles, and therefore, should be given minimal weight by the Tribunal.[71]  To the extent that the Signage Policy purports to prohibit particular types of signs, including those that display third party advertising, the applicant says that it is inconsistent with cl 4.12 of LPS 6 which contemplates that any signage proposal may receive development approval if the merits of the proposal can be established.[72]  It is the applicant's position that the Signage Policy must not be applied inflexibly by the Tribunal and that there are various cogent reasons to depart from the provisions of the Signage Policy in the circumstances of this case.[73] 

Principles relating to the application of policy

[71] Applicant's substituted SIFC dated 25 June 2021, para 35.2.

[72] Applicant's substituted SIFC dated 25 June 2021, para 35.3.

[73] Applicant's substituted SIFC dated 25 June 2021, para 35.4.

  1. The development of government policy guides the exercise of statutory discretion and has the benefit of aiding consistency in decision-making: 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).

  2. The legal principles relevant to the application of policy are set out in Clive Elliott Jennings at [24]-[26] in which Barker J referred to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 and Re Drake, among other authorities.  In determining whether a policy should be departed from, Barker J postulated that the question for consideration in many applications will be why the planning principles that find expression in the policy are not relevant to the particular application.[74]  His Honour stated:

    A 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.

    [74] Clive Elliott Jennings at [24].

  3. Barker J's approach is consistent with that of Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226, in which her Honour stated at [182]:

    … If 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[.]

  4. It follows from these authorities that I must consider the 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 Signage Policy if there are cogent reasons or a sound basis for doing so having regard to the relevance of the planning principles that find expression in its provisions.

Are there cogent reasons to depart from the Signage Policy?

  1. The applicant contends that there is a cogent reason to depart from the Signage Policy because the provisions of LPS 6 do not preclude third party advertising. The applicant says that it would not be possible to assess the proposed sign under LPS 6 and the Deemed Provisions if there is a slavish adherence to the Signage Policy controls.[75]  

    [75] ts 244, 21 October 2021.

  2. In contrast, it is the respondent's position that the applicant has not been able to make out any sound basis or cogent reason to depart from the clear controls in the Signage Policy.[76]  Counsel for the respondent noted that the expert witnesses engaged by the applicant had difficulty identifying a cogent reason to depart from the Signage Policy.[77]

    [76] ts 260, 21 October 2021.

    [77] ts 261, 21 October 2021.

  3. Mr Hidding stated that considerations of amenity have been appropriately demonstrated and traffic safety issues mitigated and resolved.[78]  In Mr Hidding's opinion, these are cogent reasons to depart from the application of the Signage Policy.[79]  He also stated that the proposed sign should be considered in its context.  He identified that the proposed sign will be located on a very large site and adjacent to an even larger approved showroom development and, therefore, consideration of the proposed sign in that context is a cogent reason to depart from the provisions of the Signage Policy.[80]

    [78] Witness statement of Nikolas Hidding dated 16 July 2021, para 121.

    [79] ts 77-78, 18 August 2021.

    [80] ts 77, 18 August 2021.

  4. Mr Doyle observed that the Signage Policy does not articulate any basis for the prohibition on third party advertising and, in his opinion, the prohibition serves no planning purpose.[81]

    [81] ts 81, 18 August 2021.

  5. I do not accept the applicant's contention that the discretion to approve or refuse third party advertising under LPS 6 has any bearing on the application of the Signage Policy.  The restriction on third party advertising under the Signage Policy cannot be applied by decision­maker's inflexibly and can be departed from if there are cogent reasons to do so.  One of the objectives of the Signage Policy is to ensure that signage only relates to the services and products on the subject land and, therefore, I consider that the prohibition on third party advertising does serve a relevant planning purpose.  Consequently, whilst third party advertising is not a use that is prohibited under the provisions of LPS 6, I find that the provisions of the Signage Policy that purport to prohibit third party advertising are based on sound planning principles.

  6. The resolution of traffic safety and amenity issues may be factors, amongst others, that weigh in favour of departing from policy.  However, in the circumstances of this case, I have found that the proposed sign will detract from the amenity of the immediate locality and, therefore, I do not accept Mr Hidding's evidence that amenity considerations are factors that weigh in favour of departure from the Signage Policy.

  7. Whilst I acknowledge that the proposed sign will be located on the same site as an approved showroom development of significant bulk and scale, I do not consider that the context of the proposed sign is a factor that alone warrants departure from the Signage Policy.  Nor do I consider that this factor, together with those matters identified by the expert witnesses for the applicant, are reasons to depart from the provisions of the Signage Policy in this case.  There was no evidence before me to support a finding that the planning principles which find expression in the provisions of the Signage Policy are not relevant to the determination of the amended application, particularly given the significant variation to the City's development controls for hoardings proposed by the applicant. 

  8. For these reasons, I am not persuaded that there is a cogent reason to depart from the application of the Signage Policy in the circumstances of this case.  Whilst I acknowledge that the Signage Policy does not address the development of digital advertising signs, the provisions of the Signage Policy that place limits on the dimensions of hoardings are matters to which I must give due regard.

Consistency of the proposed sign with the Signage Policy

  1. An objective in cl 2(b) of the Signage Policy is to protect the streetscape and the amenity of adjoining and nearby residents by minimising the visual impact of signs.[82]  Mr Hidding observed that the objective in cl 2(b) of the Signage Policy refers to minimising the impact on streetscape and, in his opinion, the impact on the amenity of nearby residents is minimised by the design and location of the proposed sign which is orientated away from the residential area and towards Albany Highway.[83]  Mr Scambler considered that the proposed sign was at odds with this objective.  In his opinion, the proposed sign was designed to have a visual impact and he could not see how a sign of the dimensions proposed would not have an impact on the quality of the streetscape.[84] 

    [82] ts 152, 18 August 2021.

    [83] ts 148, 18 August 2021.

    [84] ts 152, 18 August 2021.

  2. I accept the evidence of Mr Scrambler, and I find, that the proposed sign will detract from the quality of the streetscape because it will appear as a dominant illuminated structure in contrast to the small­scale commercial and residential buildings in the immediate locality.  Further, as stated in [70], I am unable to accurately determine the nature and extent of any disruption to the visual amenity of adjoining and nearby residents from light spill at night due to the limited lighting assessment conducted by the applicant.  For these reasons, I find that the proposed sign is inconsistent with the objective in cl 2(b) of the Signage Policy to protect the streetscape and amenity of adjoining and nearby residents.

  3. The proposed sign will have an area of 84.51m2 and an overall height of 12 metres.  I find that the dimensions of the proposed sign are inconsistent with the development controls for hoardings set out in Table 1 of the Signage Policy which sets a height limit of 6 metres, and a maximum area of 18 metres.

Conclusion

  1. Having due regard to the relevant matters in cl 67 of the Deemed Provisions, I conclude that the correct and preferable decision is to dismiss the amended application under s 252(1) of the PD Act. I have found that the proposed sign will detract from the current and likely future character and amenity of the immediate locality because, amongst other reasons, it will appear as a visually dominant illuminated structure in contrast to the relatively small-scale industrial and residential development surrounding it.

  2. I do not consider that there are cogent reasons to depart from the provisions of the Signage Policy.  In reaching a conclusion that the amended application should be dismissed, I have given due regard to the development controls of the Signage Policy, but I have not considered them determinative.

  1. Accordingly, I will affirm the respondent's decision made on 17 March 2020 to refuse development application DA20/00016 for a third party hoarding sign on the subject land.

Orders

The Tribunal orders:

1.The application for review is dismissed.

2.The decision of the respondent made on 17 March 2020 to refuse development application DA20/00016 for a third party hoarding sign at 3 (Lot 1000) Austin Avenue, Maddington, is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C BARTON, MEMBER

22 FEBRUARY 2022

ANNEXURE A

The Planning Framework

State Planning Framework

Metropolitan Region Scheme (MRS)

The subject site is zoned 'Urban' under the MRS.

Planning and Development Act 2005 (WA) (PD Act)

Section 252(1) of the PD Act provides:

(1)      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.

Section 257B(2) of the PD Act provides:

Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.

Section 257B(3) of the PD Act provides:

If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.

Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations)

1.       Terms used

…

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[.]

  1. Requirement 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.

  1. Development for which development approval not required

(1)      Development approval is not required for works if –

(a)the works are of a class specified in Column 1 of an item in the Table; and

(b)if conditions are set out in Column 2 of the Table opposite that item -all of those conditions are satisfied in relation to the works.

Table

Column 1
Works

Column 2
Conditions

…

…

10.

The erection or installation of a sign of a class specified in a local planning policy or local development plan that applies to the works as not requiring development approval.

(a)     The sign complies with any requirements specified in the local planning policy or local development plan in relation to the exemption from the requirement for development approval.

(b)     The sign is not erected or installed within 1.5 m of any part of a crossover or street truncation.

(c)     The works are not located in a heritage‑protected place.

…

…

21.

Works of a type identified elsewhere in this Scheme as works that do not require development approval.

The works comply with any requirements specified in this Scheme in relation to the exemption from the requirement for development approval.

Clause 67 in Sch 2 of the LPS Regulations (Deemed Provisions), sets out the matters to which due regard must be had in considering a development application (to the extent the matter is relevant).  

Local planning framework

City of Gosnells Local Planning Scheme No 6 (LPS 6)

The subject site is zoned 'Light Industry' under LPS 6.

Clause 1.6 of LPS 6 sets out the aims or objectives of the Scheme which relevantly include:
         …

(c)To encourage the development of businesses which will strengthen the economic base of the district and provide convenient and efficiently located employment to the community.

(d)To ensure the orderly and proper use and development of land within the District.

(e)To protect and enhance the quality of the urban and rural living environments of the District, and to provide for such expansion as is consistent with the maintenance of the services and amenities of the District required by the community.

(f)To promote the health, safety, convenience and the economic and general welfare of the community.

(g)To ensure the use and development of land does not result in significant adverse impacts on the physical and social environment[.]

3.2     OBJECTIVES OF THE ZONES

The objectives of the zones are:

…

·         Light Industry Zone

To provide for light and service industries and associated uses.

…

Clause 3.4.2 of LPS 6 provides.

3.4.2If 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 64 of the Planning and Development (Local Planning Scheme) Regulations 2015 Schedule 2 in considering an application for planning approval.

(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.

Clause 4.12 of LPS 6 provides:

4.12     CONTROL OF ADVERTISEMENTS

4.12.1           General

For the purpose of this Scheme, 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 planning approval of the Council. Planning approval is required in addition to any licence pursuant to Council's Signs Local Law.

Applications for planning approval pursuant to this Part shall be submitted in accordance with the provisions of Part 8 of the Planning and Development (Local Planning Scheme) Regulations 2015 Schedule 2.

…

4.12.3           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 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.

4.12.4            Scheme to Prevail

Where the provisions of this clause are at variance with the provisions of the Council's Signs Local Law, the provisions of the Scheme shall prevail[.]

Schedule 5 to LPS 6 provides:

Schedule 5 - Exempted Advertisements

…

GENERAL

(1)      The following are exempt advertisements:

(a)a property disposal sign not exceeding 1.2m2 erected on private property or immediately adjacent to the front boundary, where it is not possible to erect it on private property;

(b)a plate not exceeding 0.2m2 in area erected or affixed on the street alignment or between that alignment and the building line to indicate the name and occupation or profession of the occupier of the premises;

(c)a direction sign;

(d)a sign used solely for the direction and control of people, animals or vehicles or to indicate the name or street number of a premises, if the area of the sign does not exceed 0.2m2;

(e)an advertisement affixed to or painted on a shop window by the occupier thereof and relating to the business carried on therein;

(f)a sign displaying solely the name and occupation of any occupier of business premises painted on a window or wall of those premises providing that the sign does not exceed 1.2m2 in area and a height of 600mm;

(g)a sign within a building unless it is clearly visible from a public place outside the building;

(h)a sign not larger than 0.6m x 0.9m on an advertising pillar or panel for the purpose of displaying public notices for information;

(i)a building name sign n any building, where it is of a single line of letters not exceeding 300mm in height, fixed to the facade of the building;

(j)newspaper or magazine posters, provided they are displayed against the outside wall of the business premises from which the newspapers or magazines are sold;

(k)a rural producer's sign which is the only sign on the lot on which it is erected providing the sign does not exceed 1.2m2 in area and a height of 3.0 metres;

(l)a sign erected by the local government, on land under the care, control and management of the local government;

(m)a sign erected and maintained on street furniture, bus shelters or seats in accordance with the terms and conditions of a contract between the local government and the company responsible for those signs;

(n)a maximum of 4 garage sale signs, each not greater than 0.25m2, advertising the sale of second hand domestic goods in domestic quantities, not being part of a business, trade or profession and only being displayed on the day of the sale and on no more than 2 occasions for the same lot in each 6 month period;

(o)a sign or signs erected in accordance with a permit issued under the Local Law relating to Signs, Hoardings and Bill Posting;

(p)a sign painted on a kerb, adjacent to a property depicting the house number;

(q)a sign erected by the local government for the purpose of:

(i)encouraging participation in voting (but not in favour of any candidate, political party, group or thing) at a local government election, provided that the signs are erected no more than 28 days prior to the election; or

(ii)indicating the name and location of a polling place for an election.

(r)an election sign which is:

(i)erected on private property with the approval of the owner of that property, where such approval has been obtained prior to the erection of the election sign;

(ii)not in excess of 0.75m2 in area per property, except a corner property which may display one sign facing each thoroughfare of the corner;

(iii)erected not more than 28 days prior to the date of the election to which it relates;

(iv)erected in accordance with the restriction provisions of Clause 4.1 of the Local Law relating to Signs, Hoardings and Bill Posting;

(v)removed within 7 days of the date of the election.

(s)a sign either temporarily or permanently affixed or painted on a vehicle to identify a company, business, service or product supplied or sold by that company.

(t)election signs or posters erected at the place of an election rally, election meeting or polling place, provided they are:

(i)erected on the day of the election rally, election meeting or polling day and are removed on the same day or at the conclusion of the rally or meeting;

(ii)      each, no greater than 0.55m2 in area;

(iii)erected at the entrance to a polling place in locations approved by the Presiding Officer, or in the road reserve adjacent a polling place.

(iv)     not erected within a thoroughfare;

(v)erected in accordance with the restrictive provisions of Clause 4.1 of the Local Law relating to Signs, Hoardings and Bill Posting excepting sub clauses (f) and (k), and (l) of the Local Law where the total sign area is no greater than 1.75m2.

(vi)a sign that is required by the Builders Registration Board or other Government Bodies or Authorities on building sites, providing the area of any such sign does not exceed 1.5m2 and no part of the sign is more than 2.0 metres above ground level and that any such sign is removed within seven (7) days of completion of the building works on that site.

(2)A person shall not erect or maintain a sign which would otherwise be an exempt sign, if it contains:

(a)      any illumination or radio;

(b)      animation or movement in its design or structure; or

(c)      retro-reflective or fluorescent materials in its design or structure.

City of Gosnells Local Planning Policy 4.9 - Signage and Flags
(Signage Policy)

2.       OBJECTIVES

The objectives of this policy are to:

(a)Ensure that signs erected or displayed in the City of Gosnells are appropriate to their location and function and do not diminish the visual amenity, aesthetic, heritage significance and character of the locality or detract from the appearance of buildings and places.

(b)Protect the quality of the streetscape and the amenity of adjoining and nearby residents by minimising the visual impact of signs.

(c) Complement the provisions for signs as specified in the City of Gosnells Thoroughfares and Public Places Local Law 2012.

(d)Avoid the proliferation of signage in commercial and industrial areas.

(e)Ensure that signage only relates to the services and products on the site.

(f)      Encourage the rationalisation of signage on individual premises.

(g)Encourage the incorporation of signs into the design considerations of buildings.

Clause 4.1 of the Signage Policy states '[e]xcept for signage and flags within the Maddington Kenwick Strategic Employment Area, all signage and flags must comply with the relevant criteria specified in Table 1 or Table 2 of this policy unless otherwise determined by Council'.

Appendix 1 of the Signage Policy describes a 'hoarding' as being:

A sign which is affixed to a structure having one or more supports and where the overall height of the sign (inclusive of any supports) is less than the overall width of the sign.

Table 2 of the Signage Policy deals with the acceptable criteria for signs in commercial/industrial areas.

TABLE 2 - COMMERCIAL/INDUSTRIAL

Column - A
Acceptable
…
Freestanding Signs
… … …
Hoarding Size .  Maximum heigh of 6m
.  Maximum width of 3m
.  Maximum depth of 0.5m
Location N/A
Composition N/A
Maximum Number .  One per property
… … …

Draft City of Gosnells Local Planning Scheme No 24 (Draft LPS 24)

Draft LPS 24 proposes rezoning parts of the Albany Highway strip from Light Industry and Mixed Business to Service Commercial and Mixed Use, and rezoning the residential lots between Aldinga Street and Burslem Drive to R100.

In relation to the effect of Draft LPS 24, the respondent did not consider that the proposed zoning changes would significantly alter the land use character of the area.  The applicant's experts agreed with the respondent's position.


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Cases Cited

8

Statutory Material Cited

0

Sunbay Developments Pty Ltd and Shire Of Kalamunda [2006] WASAT 74
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Ridgecity Holdings Pty Ltd and City Of Albany [2006] WASAT 187