CERINI and CITY OF VINCENT
[2023] WASAT 74
•17 AUGUST 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CERINI and CITY OF VINCENT [2023] WASAT 74
MEMBER: MS C BARTON, MEMBER
HEARD: 25, 26 AND 31 MAY 2023
DELIVERED : 17 AUGUST 2023
FILE NO/S: DR 92 of 2022
BETWEEN: GRAHAM VICTOR CERINI
Applicant
AND
CITY OF VINCENT
Respondent
Catchwords:
Town planning - Development application - Exercise of planning discretion - Approved advertising sign - Digital sign - Billboard - Third party advertising - Advertisement - Innominate use - History of time-limited approvals - Whether condition imposing time limit should be deleted - Desired future character and amenity of the locality - Change in future character of the locality - Whether consistency with local signage policy - Application of policy - Whether cogent reason to depart from policy - Vehicular access - Consent authority for driveway or crossover - Commercial zone - Whether consistency with zone objectives
Legislation:
City of Busselton Local Planning Scheme No. 21, cl 4.5.2, cl 4.42, cl 37(2)
City of Vincent Local Planning Scheme No. 2, cl 16(1), cl 18(4), cl 18(4), cl 18(4)a)
Evidence Act 1906 (WA)
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 4, reg 12(1)
Main Roads Act 1930 (WA), s 6
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 3(5), cl 60, cl 67(2), cl 67(2)(b), cl 67(2)(i), cl 67(2)(m)(i), cl 67(2)(n), cl 67(2)(n)(ii), cl 76(2), cl 76(4)(c), cl 77(2)(a)
Planning and Development Act 2005 (WA), s 87(4), s 257A(3)
Public Works Act 1902 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 27(1), s 29(3), s 32(1), s 32(2)(a), s 32(2)(b)
State Planning Policy 7.3 Residential Design Codes Volume 1
Result:
Application for review dismissed
Respondent's decision affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Skinner |
| Respondent | : | Mr A Roberts |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | Castledine Gregory |
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Alcock and Town of Claremont [2013] WASAT 83
Austral Bricks (WA) Pty Ltd and Shire of Serpentine-Jarrahdale [2023] WASAT 40
Caratti Holding Co Pty Ltd and City of Belmont [2021] WASAT 105
Carrooda Pty Ltd and City of Gosnells [2022] WASAT 15
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Grace and City of Nedlands [2010] WASAT 53
JAG Traffic Pty Ltd and City of Cockburn [2022] WASAT 99
Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Immigration Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189
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 Holdings Pty Ltd and City of Albany [2006] WASAT 187
Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63
WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153
Warr and Town of Cambridge (2020) WASAT 126
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant in this proceeding, Mr Graham Cerini (applicant), is the owner of Nos 596 - 598 Newcastle Street, West Perth (subject site).
Located on the subject site are two approved billboard signs which are 12.60 metres by 3.36 metres (signs).[1] Both signs display third party advertising and are mounted on Colorbond stands which are 1.69 metres in height.[2]
[1] Respondent's Statement of Issues Facts and Contentions (SIFC), para 4; Applicant's SIFC, para 2.
[2] Respondent's SIFC, para 4; Applicant's SIFC, para 2.
In 2014, the signs were subject to a condition limiting their term of approval to 5 years (2014 approval). In 2017, the applicant sought to amend the 2014 approval to delete the condition to achieve an approval in perpetuity. However, on 6 March 2018, the respondent in this proceeding, the City of Vincent (respondent or City), imposed a condition (condition 1) limiting the 2014 approval to 21 October 2029 (2018 amendment).
On 22 October 2021, the applicant sought to alter the 2018 amendment by deleting condition 1 but on 17 May 2022 the respondent refused the application (respondent's decision).
On 2 June 2022, the applicant commenced proceedings in the Tribunal to review the respondent's decision pursuant to cl 76(2) of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations). Consequently, the application falls within the Tribunal's review jurisdiction.
For the reasons that follow, I find that the application that is the subject of this review proceeding should be dismissed and the respondent's decision affirmed.
The subject site and the locality
The subject site is formally described as Lot 116 on Deposited Plan 2360, being the whole of the land in Certificate of Title Volume 1193 Folio 707.[3]
[3] Notice of determination dated 17 May 2022.
The subject site has an area of 641m2 and is located on the northeastern corner of the intersection of Newcastle Street and Loftus Street, which is a signalised intersection.[4] It has an 11-metre frontage to Newcastle Street and a 28.7 metre frontage to Loftus Street, with a truncation provided at the intersection of Newcastle and Loftus Streets.[5] Apart from the signs and associated landscaping, required as a condition of approval, the subject site is vacant.
[4] Respondent's SIFC, para 3; Applicant's SIFC, para 2.
[5] Respondent's SIFC, para 3; Applicant's SIFC, para 2.
The subject site abuts No 590 (Lot 12) Newcastle Street, West Perth, to the east (590 Newcastle Street). The property at 590 Newcastle Street has a lot area of 934m2 and contains a single storey brick and tile commercial building.[6] At its rear (northern) boundary, the subject site abuts No 65 (Lot 800) Kingston Avenue, West Perth (65 Kingston Avenue). The property at 65 Kingston Avenue has an area of 769m2 and is currently vacant.[7]
History of time-limited approvals
[6] Respondent's SIFC, para 5; Applicant's SIFC, para 3.
[7] Respondent's SIFC, para 5; Applicant's SIFC, para 3.
Development approval for the erection of the signs on the subject site was first granted by the respondent on 26 August 2003, subject to a condition limiting the approval to 3 years.[8] The respondent subsequently granted further time-limited approvals for the signs as follows:[9]
1)3-year time limit on 9 March 2004;
2)3-year time limit on 8 August 2006;
3)5-year time limit on 23 February 2010; and
4)5-year time limit on 21 October 2014.
[8] Respondent's SIFC, para 6; Applicant's SIFC, para 4.
[9] Respondent's SIFC, para 7; Applicant's SIFC, para 4.
In 2017, the applicant sought to amend the 2014 approval to delete the condition imposing the 5-year time limit. On 6 March 2018, the respondent decided not to delete the condition but amended it to provide that the 2014 approval was valid until 21 October 2029.[10]
[10] Respondent's SIFC, para 9; Applicant's SIFC, para 4.
The 2014 approval and the 2018 amendment together comprise the current approval for the signs (current approval). Relevantly, condition 1 of the current approval provides:
This approval for the billboard signs is valid until 21 October 2029.
Issues for determination
The key issue for determination by the Tribunal is:
1)Whether condition 1 of the current approval for the signs on the subject site, under which the term of approval expires on 21 October 2029 (time limit), should be deleted?
The key issue raises the following subsidiary issues:
a)Whether the time limit should be deleted in circumstances where the City of Vincent Local Planning Scheme No. 2 (LPS 2) and City of Vincent Local Planning Strategy (Local Planning Strategy) are to be amended to address third party advertising signs?
b)Whether the time limit should be deleted in circumstances where the character of the locality in which the subject site is located is likely to change?
c)Whether the time limit should be maintained because the signs would be incompatible with the desired future character of the setting and future amenity of the locality in terms of its character?
d)Whether deletion of the time limit would be inconsistent with the City of Vincent Local Planning Policy 7.5.2 - Signs and Advertising (Signage Policy)?
e)Whether the signs, as a form of unlisted use, are inconsistent with the objectives of the Commercial zone under LPS 2 and, therefore, an impermissible use under cl 18(4) of LPS 2?
f)Whether the history of time-limited approvals for the signs supports maintenance of the time limit?
The conduct of the hearing and expert evidence
The applicant relied on the expert planning evidence of Mr Sean Fairfoul, a director of Lateral Planning, whilst the respondent called Ms Amanda Butterworth, a senior associate with Allerding and Associates Town Planning Consultants, and Mr John Corbellini, Executive Director Strategy and Development, with the City. Mr Fairfoul, Ms Butterworth and Mr Corbellini filed witness statements with the Tribunal which they adopted as their evidence-in-chief and were cross-examined.
The Tribunal also heard evidence from two traffic experts, Ms Marina Kleyweg, a director and principal of KC Traffic and Transport Pty Ltd, called on behalf of the applicant, and Ms Heidi Herget, a principal with Move Consultants, called on behalf of the respondent. Ms Kleyweg and Ms Herget filed witness statements with the Tribunal which they adopted as their evidence-in-chief and were cross-examined.
The Tribunal had the benefit of a site view which was attended by the parties' legal representatives and the expert witnesses. The view commenced at the subject site where we observed the signs and existing landscaping. From the subject site we proceeded east along the northern footpath of Newcastle Street. We crossed at Cleaver Street to the southern side of Newcastle Street where we observed the site of a recently approved Bunnings warehouse development on the southeastern corner of Cleaver Street to old Aberdeen Place (Bunnings approval). We then walked westward along the southern footpath of Newcastle Street, past Tandy Street and Douglas Street, towards the subject site, proceeding south along Loftus Street to the intersection of Loftus Street and Leederville Parade. At that point, we observed the nature of the development and landscaping along Loftus Street and proceeded northwards past the site of the Water Corporation (Water Corporation site) to Vincent Street, observing the landscaping and 'park type' treatment of various portions of the road verge, including Venables Park. On our return to the subject site, heading south on Loftus Street, we viewed the property at 65 Kingston Avenue (to the north/rear of the subject site), the bicycle path along Loftus Street, existing vegetation, and the location of potential vehicular access points to the subject site.
The Tribunal's review jurisdiction
By reason of s 17 of the State Administration 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 Planning and Development Act 2005 (WA) (PD Act) (the latter 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).[11]
[11] SAT Act, s 18.
The Tribunal's review of the respondent's decision to impose condition 1 is 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.[12] Where a condition of a development approval is the subject of the review, the Tribunal will not generally embark on a review of the respondent's decision to approve the proposed development.[13] However, the Tribunal is empowered to impose other conditions on the approval.[14]
[12] SAT Act, s 27.
[13] Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10]; Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266 at 274.
[14] See Austral Bricks (WA) Pty Ltd and Shire of Serpentine-Jarrahdale [2023] WASAT 40.
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[15] 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.[16]
[15] SAT Act, s 32(2)(a).
[16] SAT Act, s 32(1).
The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[17] The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.[18] 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 planning framework
[17] SAT Act, s 27(1).
[18] SAT Act, s 32(2)(b).
The subject site is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Commercial' under LPS 2.[19] Loftus Street, which abuts the western side of the subject site, is reserved 'Other Regional Road' under the MRS. Newcastle Street is not reserved under the MRS.[20]
[19] Respondent's SIFC, para 22 and para 24; Applicant's SIFC, paras 9 and 11.
[20] Respondent's SIFC, para 22; Applicant's SIFC, para 9.
Land to the east of the subject site, on the northern side of Newcastle Street, is zoned Mixed Use under LPS 2 with a density code of R160.[21] Land on the southern side of Newcastle Street, between Loftus and Charles Streets, is zoned 'Commercial' under LPS 2.[22] Land to the north of the subject site is zoned 'Residential' with a density code of R80. Land to the west of Loftus Street (between Leederville Parade and Vincent Street) is zoned 'Regional Centre' under LPS 2.
[21] Respondent's SIFC, para 24; Applicant's SIFC, para 11.
[22] Respondent's SIFC, para 24; Applicant's SIFC, para 11.
In addition to the MRS and LPS 2, the planning framework includes, but is not limited to, the following:
1)LPS Regulations;
2)Sch 2 to the LPS Regulations (Deemed Provisions);
3)Local Planning Strategy;
4)City of Vincent Local Planning Policy 7.1.1 - Built Form, adopted 13 December 2016 (Built Form Policy);
5)Leederville Town Centre Masterplan Built Form Guidelines (Leederville Masterplan);
6)Draft Leederville Precinct Structure Plan (Draft Structure Plan);
7)Signage Policy; and
8)City of Vincent Pickle District Planning Framework, adopted 16 May 2023 (Pickle District Planning Framework)
In determining the application, I must have due regard to the matters listed in cl 67(2) of the Deemed Provisions to the extent, in my opinion, those matters are relevant to the development that is the subject of the application.
The Tribunal's consideration
There is no dispute, and I find, that the signs are an 'unlisted use' (or an innominate use) under LPS 2 because 'advertisement'[23] is not a use specifically referred to in the zoning table and it cannot reasonably be determined as falling within a use class referred to in the zoning table.[24]
[23] See definition of 'advertisement' in cl 1 of the Deemed Provisions.
[24] Respondent's SIFC, para 25; Applicant's SIFC, para 13.
Clause 18(4) of LPS 2 aids in interpreting the zoning table where a use is not listed. Clause 18(4) of LPS 2 provides:
(4)The local government may, in respect of a use that is not specifically referred to in the zoning table and that cannot reasonably be determined as falling within a use class referred to in the zoning table –
a)determine that the use is consistent with the objectives of a particular zone and is therefore a use that may be permitted in the zone subject to conditions imposed by the local government; or
b)determine that the use may be consistent with the objectives of a particular zone and give notice under clause 64 of the deemed provisions before considering an application for development approval for the use of the land; or
c)determine that the use is not consistent with the objectives of a particular zone and is therefore not permitted in the zone.
The respondent contends that if the signs are not consistent with the objectives of the Commercial zone, then this would weigh against the removal of the time limit on the current approval.[25] In contrast, the applicant says that the signs are consistent with the objectives of the Commercial zone for the purposes of cl 18(4)(a) of LPS 2 and may be permitted, and, in any event, have already been approved.[26]
[25] Respondent's closing submissions, para 157.
[26] Applicant's SIFC, para 23; ts 184, 31 May 2023.
Before determining whether the signs are consistent with the objectives of the Commercial zone, I will first consider the proposed changes to LPS 2 and the Local Planning Strategy which will have the effect, if approved, of prohibiting third party advertising in all zones.
Whether the time limit should be deleted in circumstances where LPS 2 and the Local Planning Strategy are to be amended to address third party advertising signs?
Clause 67(2)(b) of the Deemed Provisions provides that, in considering an application for development approval, a decision-maker (and the Tribunal on review) is to have due regard to any proposed amendment to a scheme that has been advertised under the LPS Regulations. Further, cl 67(2)(i) of the Deemed Provisions requires the Tribunal to give due regard to any report of the review of the local planning scheme that has been published under the LPS Regulations.
In 2022, the respondent undertook a 5-year review of LPS 2 and prepared a report on the review which was published and endorsed by the Western Australian Planning Commission (WAPC) (review report).[27] Part 7 of the review report identified that LPS 2 omitted definitions for third party advertising signs and recommended further guidance for land use proposals that are unlisted or undefined.[28] Prior to finalisation of the review report, on 21 December 2021, the Council of the respondent (Council) resolved to amend LPS 2 to prohibit third party advertising in the Scheme area (Scheme Area).[29]
[27] Substituted witness statement of John Corbellini dated 5 May 2023, para 42: Attachment JC4.
[28] Substituted witness statement of John Corbellini dated 5 May 2023, page 439.
[29] Respondent's s 24 bundle, page 206.
Relying on the evidence of Mr Corbellini, the respondent says that it proposes to amend LPS 2 to prohibit third party advertising and that there is no need for a new scheme.[30] The proposal to amend LPS 2 is consistent with the decision of the Statutory Planning Committee of the WAPC that both LPS 2 and the Local Planning Strategy should be amended to address actions identified in Pt 7 of the review report.[31] Mr Corbellini said that the amendment process will begin towards the end of 2023 and be submitted to the WAPC by mid-2024, with the expectation that it will be concluded during 2025.[32] Based on this timeframe, the respondent estimates that the outcome of the amendments to LPS 2 and the Local Planning Strategy should be known during 2025, some 4 years before the expiry of the current approval for the signs.[33]
[30] ts 90-91, 26 May 2023.
[31] Substituted witness statement of John Corbellini dated 5 May 2023, para 42 and Attachment JC6, page 591.
[32] ts 91, 26 May 2023.
[33] Respondent's closing submissions, para 20.
The respondent contends that the circumstances justifying a timelimited approval in the first instance are also relevant in determining whether a condition that imposes a time limit should be subsequently maintained or deleted. In Grace and City of Nedlands [2010] WASAT 53 (Grace), the Tribunal considered the circumstances in which it may be appropriate to impose a condition limiting the time for approval. One situation is where there is likely to be some change in the planning framework. The Tribunal observed:[34]
… Generally speaking, time-limited consents are appropriate where there is likely to be some change in the planning framework or in the character of a locality, or where there are management issues which it is appropriate to monitor after a certain period of time[.]
[34] Grace at [70]. See also JAG Traffic Pty Ltd and City of Cockburn [2022] WASAT 99 (JAG Traffic) at [107].
Whilst the applicant acknowledges that it is Council's intention to amend LPS 2, he says that there is not sufficient certainty that the amendment to prohibit third party advertising will occur.[35] The applicant relies on comments made by officers of the Department of Planning, Lands and Heritage (Department) which indicate that such a blanket prohibition in LPS 2 would not be supported. The applicant observes that the Department's position is consistent with the outcome of amendment no. 16 to the City of Belmont Local Planning Scheme No. 15 (to prohibit third party signage) which was refused by the Minister.[36] The applicant further observes that there is a tendency in recently finalised schemes to exclude a prohibition on third party advertising.[37]
[35] ts 194, 31 May 2023.
[36] ts 142, 26 May 2023; ts 194, 31 May 2023.
[37] ts 194, 31 May 2023.
In support of its position, the applicant relied on the evidence of Mr Fairfoul. Mr Fairfoul noted that since 2015 a total of seven local planning schemes have been adopted in the Perth metropolitan area, with none of them including a prohibition on third party advertising.[38] Mr Fairfoul said that given this consistent approach to third party advertising in newer schemes, there is some doubt about whether the WAPC and the Minister would allow the inclusion of signage restrictions in LPS 2.[39] Further, Mr Fairfoul observed that the model provisions in Sch 1 to the LPS Regulations (Model Provisions) do not refer to third party advertising and, in his opinion, it is not standard practice for local government authorities to place a moratorium on new development applications pending the preparation of a new scheme.[40]
Findings
[38] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at para 147.
[39] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at para 148.
[40] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at paras 149-150.
Clause 67(2)(b) of the Deemed Provisions requires that due regard is given to scheme amendments that have been advertised. There is no dispute, and I find, that the proposed amendments to LPS 2 which are to be made as a consequence of the review report have not been advertised.[41] However, the respondent contends, and I accept, that cl 67(2)(i) of the Deemed Provisions requires that due regard must be given to any report of the review of a local planning scheme without the need for the review being advanced to the point where scheme amendments have been advertised.
[41] ts 193, 31 May 2023.
There was no dispute, and I find, that the review report was prepared and published by the respondent for the purpose of the 5-year review of LPS 2. Consequently, I am satisfied that the review report is a report of the review of a local planning scheme for the purposes of cl 67(2)(i) of the Deemed Provisions and, therefore, is a matter to which I must have due regard.
Part 7 of the review report identified that LPS 2 omitted definitions for third party advertising signs and recommended further guidance for land use proposals that are unlisted or undefined. The respondent had recommended in Pt 8 of the review report that LPS 2 was satisfactory. However, the Statutory Planning Committee of the WAPC decided that LPS 2 (and the Local Planning Strategy) should be amended to address the actions in Pt 7 of the review report. Whilst I accept the applicant's contention that it is unclear from Pt 7 of the review report how third party advertising will be addressed, it is clear on the evidence before me that Council has resolved to prohibit third party advertising in the Scheme Area. Consequently, I find that Pt 7 of the review report, in the context of the Council's resolution to prohibit third party advertising, is a matter which should be given some weight in the determination of these proceedings but is not determinative.
The applicant relies on comments made by officers of the Department at a meeting with officers of the respondent on 26 April 2022 to the effect that the Department is unlikely to support a prohibition on third party advertising in LPS 2.[42] The Department advises the Minister and the WAPC but it does not have a decisionmaking role. Consequently, the views expressed by officers of the Department are not matters that I can afford substantial weight in these proceedings.
[42] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at para 146.
Relying on the evidence of Mr Fairfoul, the respondent noted an absence of provisions on third party advertising in several recently finalised local planning schemes.[43] However, I am unable to conclude, based on the evidence before me, that there is a consistent approach to third party advertising in local planning schemes. Whilst I accept that a majority of recently finalised schemes do not have provisions prohibiting third party advertising, there are local government areas, such as the City of Busselton, where third party advertising is prohibited.[44] Consequently, for these reasons, I am not satisfied that the approach taken to third party advertising in other local planning schemes can be relied on to predict the likely outcome of the LPS 2 review process. Further, the schemes referred to by Mr Fairfoul do not operate within the Scheme Area and, therefore, do not apply to the application before me.
[43] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at paras 147-149 and para 152.
[44] City of Busselton Local Planning Scheme No. 21, cl 4.5.2 and cl 4.42; Substituted witness statement of John Corbellini dated 5 May 2023, para 41.
Finally, I accept the respondent's contention that the Minister is empowered under s 257A(3) of the PD Act to permit a variation in, or exclusion from, the Model Provisions and, therefore, it is possible that LPS 2 could be amended to include a provision that prohibits third party advertising.
Whether the time limit should be deleted in circumstances where the character of the locality in which the subject site is located is likely to change?
I must, in considering the application, have due regard to the amenity of the locality including, relevantly, the character of the locality pursuant to cl 67(2)(n) of the Deemed Provisions. 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'.
In Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity), the Tribunal considered the concept of locality:[45]
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[.]
[45] Ridgecity at [42].
Delineating and characterising the locality is of particular relevance in this proceeding because the respondent contends that, as a result of the planning framework, future development is likely to be significantly different from that which currently exists on the subject site and adjacent areas.[46] It is generally accepted that a condition limiting the time for approval may be appropriate where there is likely to be some change in the planning framework or the character of a locality.[47]
Delineation of the locality
[46] Respondent's closing submissions, paras 79-80.
[47] Grace at [70].
For the purposes of assessing the impact of the signs on the future character and amenity of the locality, the applicant says that it represents the area which is potentially impacted by existing development, being the area from which the development is either visible or discernible.[48] The applicant says that any potential impact from the signs will depend on whether the other sites in the locality are redeveloped, and when they are redeveloped.[49]
[48] ts 197, 31 May 2023.
[49] ts 197, 31 May 2023.
Mr Fairfoul described an immediate locality and a wider locality.[50] He stated that the signs are only visible from a small portion of the immediate locality, being to the south and west of the subject site and further south on Loftus Street heading north.[51] Mr Fairfoul did not identify any specific planning impacts from the signs in the wider locality.[52]
[50] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at paras 30-35.
[51] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at para 34.
[52] ts 96, 26 May 2023.
Mr Corbellini described the boundaries of the locality by reference to sites, streets and intersections from which the signs are visible and prominent.[53] Ms Butterworth substantially agreed with Mr Corbellini's description of the locality as reflected in her amended locality plan.[54] However, Ms Butterworth's delineation of the locality extends to properties to the west of the intersection of Loftus Street and Newcastle Street, including the Water Corporation site, because the subject site will be visible from any medium or high rise development west of Loftus Street.[55] Her delineation of the locality also extends to properties on the northern side of Newcastle Street (between Loftus and Cleaver Streets) because she considers them part of the streetscape.[56] With the exception of the third party advertising on the subject site, all signage within the locality relates to goods and services available from the property on which it is displayed.[57] This includes the Water Corporation sign at 629 Newcastle Street and the sign for Band Digital at 599 Newcastle Street. Ms Butterworth did not observe any other third party advertising in the locality.[58]
[53] Substituted witness statement of John Corbellini dated 5 May 2023, paras 75-76.
[54] Witness statement of Amanda Jane Butterworth dated 14 April 2023, paras 52-53; Exhibit 11, Annexure AJB7.
[55] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 52.
[56] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 53.
[57] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 55.
[58] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 55.
I accept the evidence of Ms Butterworth, and I find, that the locality is not limited to the area within which the signs are visually prominent but extends to the Water Corporation site to the west of the intersection of Loftus Street and Newcastle Street and those properties that form part of the immediate streetscape adjacent to the signs on the northern side of Newcastle Street (between Loftus and Cleaver Streets). I am satisfied that the locality, as delineated by Ms Butterworth, provides a suitable basis to assess the impact of the signs on the existing and likely future character of the streetscape and also from locations in close proximity to the subject site which may be redeveloped in the future having regard to the planning framework.
Is the character of the locality likely to change?
The applicant says that the subject site presents very much as a landscaped extension of the road verge, and forms part of a continuous strip of landscaping, which extends from the road verge on both sides of Loftus Street (from Leederville Parade intersection northwards, up to the Newcastle Street intersection on both sides), including the Water Corporation vegetation and landscaping on the western side of Loftus Street, encompassing Venables Park, and past the City's administration offices.[59] The applicant contends that the built form of the signs would be compatible with the future character and amenity of the locality because there are some aspects of the current amenity that will not change, such as the strip of landscaping along Loftus Street.[60]
[59] ts 196, 31 May 2023.
[60] Applicant's SIFC, para 31; ts 198, 31 May 2023.
In contrast, the respondent contends that the future character of the locality is likely to change as higher density development is promoted by the planning framework. In support of its position, the respondent relied on the evidence of Ms Butterworth and Mr Corbellini. Ms Butterworth explained the changing character of the locality in the following terms:[61]
The amenity of Newcastle Street, between Loftus and Cleaver Street, in my opinion, will change over time in the future as the area is developed. I am of the view that the amenity will likely increase in vibrancy, with active frontages, the density of development and population within the locality is also likely to increase. I consider that, over time as new development occurs in accordance with the planning framework, this will likely result in an area with an improved amenity and amenity expectations.
[61] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 64.
In her written statement, Ms Butterworth referred to the Central Subregional Planning Framework (Framework), which is a strategic planning instrument published by the WAPC in March 2018. It identifies Loftus Street and Newcastle Street as 'Urban Corridors', and the land on the western side of Loftus Street as an 'Activity Centre'.[62]
[62] Witness statement of Amanda Jane Butterworth dated 14 April 2023, Annexure AJB6.
For 'Urban Corridors', the urban consolidation principles and precinct description is set out in the Framework, respectively, as follows:[63]
The focus for higher-density residential development. Where appropriate, located along transit corridors and promoted as attractive places to live by optimising their proximity to public transport while ensuring minimal impact on the surrounding urban fabric and the operational efficiency of the regional transport network.
Urban corridors provide connections between activity centres and maximise the use of high-frequency and priority public transport. Urban corridors shown in the framework represent significant opportunities to accommodate increased medium-rise higher density residential development by good quality, high-frequency public transport.
[63] Framework, pages 24-25.
Pursuant to the Local Planning Strategy, the subject site and Newcastle Street (from the subject site at Loftus Street to William Street) are designated 'High Density Mixed Use'.[64] The adjoining property to the north of the subject site (at 65 Kingston Avenue) is designated 'High Density Residential' under the Local Planning Strategy, whilst the area to the south of Newcastle Street, directly adjacent to the subject site, is designated as both a 'High Density Mixed Use' and a 'Planned Urban Growth Area'.[65] The area adjacent to the west of the subject site, west of Loftus Street is designated under the Local Planning Strategy as both a 'Commercial' and a 'Planned Urban Growth Area'.[66] This area forms part of the Leederville Activity/Town Centre. [67]
[64] Local Planning Strategy, Figure 1 - Strategic Plan. Substituted witness statement of John Corbellini dated 5 May 2023, Attachment JC3.
[65] Local Planning Strategy, Figure 1 - Strategic Plan. Substituted witness statement of John Corbellini dated 5 May 2023, Attachment JC3.
[66] Local Planning Strategy, Figure 1 - Strategic Plan. Substituted witness statement of John Corbellini dated 5 May 2023, Attachment JC3.
[67] Substituted witness statement of John Corbellini dated 5 May 2023, para 28.
Pursuant to the Built Form Policy, the subject site and other properties with frontage to the northern side of Newcastle Street (between Loftus Street and 482 Newcastle Street) is within an 'Activity Corridor' built form area. The objective of the Built Form Policy for an 'Activity Corridor' is 'to improve the built form connection and design between the City's town centres'. To achieve this objective, the Built Form Policy sets a maximum building height of 6 metres, a nil street setback, and frontage/façade design standards for multiple dwelling, mixed-use development and commercial development.[68]
[68] Substituted witness statement of John Corbellini dated 5 May 2023, para 55; Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 43. Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9 at para 111.
Ms Butterworth noted that the provisions of the Built Form Policy are likely to be amended, specifically in relation to the design guidelines for William Street. However, she observed that the new policy will not alter the development standards that apply to the subject site.[69] In Mr Fairfoul's opinion, the Built Form Policy is not a relevant consideration in these proceedings because the application to amend the current approval did not include any built form.[70] Whilst Mr Fairfoul did not address the likely change to the character of the locality in his written statement, he acknowledged, under cross-examination, that the Built Form Policy would be one of the factors to consider in judging the future character and amenity of the locality.[71]
[69] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 48.
[70] Witness statement of Sean Fairfoul dated 18 April 2023; Exhibit 9, para 116.
[71] ts 104, 26 May 2023.
The Pickle District Planning Framework (PDPF) is a local planning policy which contemplates the redevelopment of properties on the southern side of Newcastle Street to achieve increased building height, built form and intensity.[72] The PDPF boundary also extends to the northern site of Newcastle Street, including the subject site.[73]
[72] Exhibit 4; ts 169, 26 May 2023.
[73] Exhibit 4.
In addition, Council has adopted the Leederville Masterplan which applies to the area to the west of the subject site, on the opposite side of Loftus Street, both north and south of Newcastle Street. The Leederville Masterplan sets a maximum height of five storeys, except for the area to the southwest of the Loftus Street and Newcastle intersection, where it indicates a tower, including any podium to be 16 - 24 storeys high, with a minimum set back of 10 metres from the street boundaries.[74]
[74] Substituted witness statement of John Corbellini dated 5 May 2023, para 56.
Finally, the Draft Structure Plan, which is awaiting consideration by the WAPC, also applies to the area to the west of the subject site. Mr Corbellini described this area and the development standards that apply to it in the following terms:[75]
… This area is include[d] in the 'Cityscape' sub-precinct where a maximum height of 18 storeys, with the potential for up to 23 storeys with bonus height, applies, along with an acceptable podium height of four storeys, a nil primary street setback and a 3.0 metre secondary and rear setback. Awnings are required by the [Draft Structure Plan] along footpaths adjoining commercial and mixed use building. There is no requirement in the [Draft Structure Plan] for the landscaping on the south west corner of Loftus Street and Newcastle Street intersection to be retained.
[75] Substituted witness statement of John Corbellini dated 5 May 2023, para 57.
Mr Corbellini stated that both the Leederville Masterplan and the Draft Structure Plan seek to achieve active frontages, interaction and surveillance of Loftus Street and development facing Loftus Street.[76] He also acknowledged, under cross-examination, that there are no immediate plans to remove the landscaping along the western side of Loftus Street.[77]
Findings
[76] Substituted witness statement of John Corbellini dated 5 May 2023, para 58.
[77] ts 155-156, 26 May 2023.
Having due regard to the provisions of the planning instruments outlined above, I am satisfied that the locality and the area immediately surrounding the locality will have a higher density mixed use component with active street frontages. I accept that there may be some aspects of the current amenity that may not change, including the strip of vegetative landscaping along Loftus Street identified by the applicant. However, the presence and quality of landscaping is only one factor that makes up the character of a locality and, consequently, I do not accept that the time limit should be deleted on the basis that the landscaping along Loftus Street is likely to remain unchanged.
I prefer the evidence of Ms Butterworth and Mr Corbellini, and I find, that the planning framework is likely to lead to a change in the character of the locality. Whilst I acknowledge that the signs have been the subject of time-limited approvals in the past, I consider that the likely change in the character of the locality is a factor that militates against the deletion of the time limit.
I will next consider whether the time limit should be maintained having regard to the desired future character and amenity of the locality.
Whether the time limit should be maintained because the signs would be incompatible with the desired future character of the setting and future amenity of the locality in terms of its character?
The respondent contends that as a result of changes in built form promoted by the planning framework, the continued presence of the signs on the subject site would be incompatible with: (a) the desired future character of the setting in which they are located for the purposes of cl 67(2)(m)(i) of the Deemed Provisions; and (b) the likely future character and amenity of the locality for the purposes of cl 67(2)(n)(ii) of the Deemed Provisions.
Because the signs have been the subject of time-limited approvals since 2004, and have approval to remain until 21 October 2029, the applicant says that this demonstrates that the signs have not, and will continue to not have, any adverse impact on the amenity of the locality.[78] The applicant further says that any regard to the provisions of the Built Form Policy (which commenced prior to the most recent extension of the current approval) ought to be considered not by reference to the signs in isolation but in combination with the landscaping of the balance of the subject site, which has, and will continue to, enhance the future character and amenity of the locality.[79] It is the applicant's position that the area is not in transition and, therefore, distinguishable from recent decisions of the Tribunal in which time-limited approvals were upheld.[80] In closing, the applicant made the following submissions:[81]
… As we said, the only sense of which the locality is in transition is in relation to density and built form. The only impact that has been identified is that the existing development will not conform to that desired built form, which is essentially a visual impact or an impact based on the existing development being incongruous in some way with other built form and somehow being objectionable or out of character as a result of that …
… But as to whether or not the existing development will have an impact, we say that, first and foremost, depends upon the extent of takeup of increased density and built form[.]
[78] Applicant's SIFC, para 26.
[79] Applicant's SIFC, para 32; ts 106, 26 May 2023.
[80] ts 199, 31 May 2023. See Goldfield Villages Pty Ltd and City of Kalgoorlie-Boulder [2023] WASAT 6; JAG Traffic.
[81] ts 199, 31 May 2023.
The applicant contends that there is insufficient evidence for the Tribunal to be satisfied that all or a significant majority of the sites in the locality will be redeveloped to a higher density, or that this will occur prior to 21 October 2029.[82] Relying on the evidence of Mr Fairfoul, the applicant observed that the provisions of the Built Form Policy have been in effect for 7 years, since 2016, and that very little, if any, redevelopment has occurred.[83] The applicant further observed that the redevelopment which has occurred, such as the Bunnings approval, is not taking up or fully taking up the built form that is permissible under the Built Form Policy, particularly along Newcastle Street.[84]
Findings
[82] ts 200, 31 May 2023.
[83] Witness statement of Sean Fairfoul dated 18 April 2023, para 107; ts 159-160, 26 May 2023; ts 200, 31 May 2023.
[84] Witness statement of Sean Fairfoul dated 18 April 2023, para 107; ts 103, 26 May 2023; ts 200, 31 May 2023.
Whilst I accept that the landscaping of the subject site may enhance the future amenity and character of the locality if it was retained as a condition of an approval in perpetuity, I do not consider this to be determinative. As already stated, the presence and quality of landscaping is only one factor that makes up the character of a locality.
Ms Butterworth and Mr Corbellini agreed, and I find, that the signs (with or without the landscaping) are not consistent with the future amenity and desired future character of the locality.[85] Based on their evidence, which I accept, I find that the signs are large prominent structures which are inconsistent with the general streetscape of the locality envisaged under the planning framework. I do not accept the applicant's contention that the slow pace or uncertain timeframe for realisation of higher density (or the extent of up-take of the other development standards of the Built Form Policy) is a reason to remove the time limit. If anything, a gradual transition to higher density and permissible built form, consistent with the planning framework, is a reason to retain the time limit, with the current approval able to be extended if circumstances warrant it.
[85] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 73. Substituted witness statement of John Corbellini dated 5 May 2023, paras 88-89; ts 165, 26 May 2023.
Consequently, I find that the incompatibility of the signs with the desired future character of the setting, and future amenity of the locality in terms of its character, are factors that militate against the deletion of the time limit.
I will next consider whether deletion of the time limit would be inconsistent with the Signage Policy.
Whether deletion of the time limit would be inconsistent with the Signage Policy?
The respondent has adopted the Signage Policy which applies to advertising signs proposed within the City of Vincent (with certain specified exceptions). In making a determination under LPS 2, the respondent (and the Tribunal on review) must have regard to the Signage Policy to the extent that it is consistent with LPS 2.[86]
[86] Deemed Provisions, cl 3(5).
The objectives of the Signage Policy are to ensure that advertising signs within the City:
1.Do not present a hazard or obstruction to pedestrians or motorists or the efficiency of a road or traffic control devices;
2.Are suitably designed and located to maintain and enhance the amenity of the surrounding locality;
3.Only relate to services and products available on the site on which the advertising is located;
4.Do not result in a proliferation of advertisement;
5.Do not detract from the heritage significance of a building or area;
6.Maintain active frontages and encourages pedestrian interaction;
7.Are incorporated and integrated with the buildings of other structures on the subject lot; and
8.Align with the City's Public Health Plan objective of advocating for reduced exposure to alcohol and tobacco advertising.
The scope of the Signage Policy is as follows:
The provisions of this policy apply to advertising signs proposed within the City of Vincent, with the exception of:
•Internal advertising signs;
•Advertising signs that advertise a planning proposal for public comment;
•Advertising signs within public thoroughfares including directional street signs, on bus shelters or traffic and safety signs; and
•Election signs.
The Signage Policy defines 'advertising sign' or 'sign' to mean:
… 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;
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.
There is no dispute, and I find, that the signs on the subject site are a form of freestanding sign, specifically, a 'hoarding sign' under cl 10.5 of the Signage Policy because the signs are affixed to one or more supports with the largest dimension being horizontal.[87] Clause 10.5 of the Signage Policy provides deemed-to-comply standards for freestanding signs, including a maximum area for a hoarding sign of 3 square metres.
[87] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 38; ts 102, 26 May 2023.
'Third party advertising' is defined in the Sign Policy as follows:
Third party advertising (previously known as billboards) means an advertisement on any building, sign or structure so as to be visible from a street, public place, public reserve or other land for the purpose of advertising products or services that are not being offered on a site on which the sign is erected.
The Signage Policy purports to prohibit new third party advertising and provides that time-limited approvals for third party advertising will not be granted further extensions beyond the approval date lapsing. Clause 3.1 and cl 3.2 of the Signage Policy provide:
3.1New third party advertising, including time limited approvals, is prohibited in all zones.
3.2Existing and previously approved third party advertising subject to a time limited approval will not be granted a further extension beyond the approval date lapsing. Every effort should be made to cease use of the site for third party advertising and establish land uses in accordance with the vision set out for the site in the City of Vincent's Local Planning Strategy.
Also, cl 7.1 of the Signage Policy provides, as a general standard, that advertising signs only relate to services and products available on the site on which the advertising sign is located. Where the general standards (or sign specific standards in cl 10 are not met), cl 6.1 of the Signage Policy requires that the signs are assessed against the objectives of the Signage Policy.
Principles relating to the application of policy
The principles relating to the application of policy are well established. The existence of a policy, formulated by the decisionmaker whose decision is under review, is a factor to be taken into consideration by the Tribunal, but it cannot replace the exercise of discretion by the Tribunal.[88] The Tribunal's decision 'must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy'.[89] That is, a policy cannot be inflexibly applied regardless of the merits of the case.[90]
[88] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; (1979) 2 ALD 60 at 69-70.
[89] Minister for Immigration Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 at 205207.
[90] 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 at [24] - [26] (Barker J).
Any departure from government policy must be cautious and sparing, occurring only where there is a cogent reason or sound basis to do so, which itself is grounded in planning law or principle.[91]
[91] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 6445; Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182].
In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 at [51], the Tribunal adopted the criteria set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 (Permanent Trustee) for determining the weight to be given to a policy.[92] The criteria include whether the policy is based on sound planning principles, is public (as opposed to secret) and whether it was 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. 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.[93]
[92] Cited with approval in Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 at [361].
[93] Marsh and Commissioner of Police [2018] WASAT 139 at [27] and [38]-[39].
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.
I will next consider whether the signs are consistent with the provisions of the Signage Policy, and its objectives.
Consistency with Signage Policy
The respondent says that the Signage Policy is relevant to my determination and, having regard to the criteria in Permanent Trustee, should be afforded significant weight.[94] The respondent contends that deletion of the time limit would be inconsistent with cl 3.2 of the Signage Policy because it would, in effect, extend the current approval beyond the current expiry date of 21 October 2029. The respondent further contends that the dimensions of the signs do not comply with the deemed-to-comply standards for freestanding and hoarding signs in cl 10.5 of the Signage Policy.
[94] Respondent's closing submissions, para 132.
Because the deemed-to-comply standards are not met, the respondent says that the signs must be assessed against the objectives of the Signage Policy (in accordance with cl 6.1 of the Signage Policy). Relying on the evidence of Ms Butterworth and Mr Corbellini, it is the respondent's position that the signs are inconsistent with the objectives of the Signage Policy because they are not suitably designed and located to enhance the amenity of the surrounding locality (contrary to objective 2),[95] do not relate to services and products available on the subject site (contrary to objective 3), and, on occasion, advertise alcohol (contrary to objective 8).[96]
[95] Witness statement of Amanda Jane Butterworth dated 14 April 2023, paras 82; Substituted witness statement of John Corbellini dated 5 May 2023, para 102.
[96] Substituted witness statement of John Corbellini dated 5 May 2023, JC10.
In contrast, the applicant says that the Signage Policy has limited application in these proceedings because the provisions of the Signage Policy are inconsistent with LPS 2 pursuant to which 'advertisement' is a use not listed and, consequently, third party advertising may be permissible in accordance with cl 18(4) of LPS 2.[97] In the alternative, applying the ordinary meaning of the phrase 'consistent with', the applicant contends that the signs are generally in accordance with (or not incompatible with) the objectives of the Signage Policy.[98]
[97] ts 187-188, 31 May 2023.
[98] ts 199, 31 May 2023.
In support of its position, the applicant relied on the evidence of Mr Fairfoul. Because 'advertisement' is a use not listed, it is Mr Fairfoul's opinion that the determination of its acceptability in any given case must be made under cl 18(4) of LPS 2 which only requires an assessment against the objectives of LPS 2 and not the Signage Policy.[99] Consequently, in Mr Fairfoul's opinion, the Signage Policy provisions have no application when considering the acceptability of the use of a sign for advertising. It follows, in Mr Fairfoul's opinion, that the Signage Policy only applies to those advertisements that are incidental to the predominant use of land.[100]
[99] Witness statement of Sean Fairfoul dated 18 April 2023, para 105.
[100] Witness statement of Sean Fairfoul dated 18 April 2023, para 106.
Mr Fairfoul also conducted an assessment against the objectives of the Signage Policy. In relation to objective 2 of the Signage Policy, it is Mr Fairfoul's opinion that the signs are of a scale which is appropriate to the locality and, as the signs have been displayed at the subject site for 20 years, form part of the built form and amenity of the locality.[101] Mr Fairfoul is also of the opinion that the current development configuration, being the signs and the landscaping, contributes positively to general amenity.[102] In relation to objective 3, Mr Fairfoul considers that it does not serve a planning purpose because neither the definition of 'advertisement' in cl 1 of the Deemed Provisions nor cl 60 of the Deemed Provisions draw any distinction between the content of third party advertising and the content of an advertisement that specifically relates to products available from the site.[103] Whilst Mr Fairfoul said that the signs do not display tobacco advertising, he acknowledged that they do advertise alcohol.[104]
[101] Witness statement of Sean Fairfoul dated 18 April 2023, paras 126(b) and 126(c).
[102] Witness statement of Sean Fairfoul dated 18 April 2023, para 126(d).
[103] Witness statement of Sean Fairfoul dated 18 April 2023, paras 126(g) to 126(j).
[104] Witness statement of Sean Fairfoul dated 18 April 2023, para 126(p); ts 89, 26 May 2023.
I do not accept that the Signage Policy only applies to advertisements that are incidental to the predominant use of land. Clause 18(4) of LPS 2, pursuant to which an advertisement use may be permissible if it is consistent with the objectives of a particular zone, cannot be read in isolation and must be considered in the context of the other provisions of the Scheme. Specifically, cl 77(2)(a) of the Deemed Provisions requires that an application to amend a development approval is to be dealt with as if it were an application for development approval. Consequently, cl 67(2) of the Deemed Provisions applies, which includes consideration of any local planning policy for the Scheme Area to the extent that I consider it relevant. I consider that the Signage Policy is relevant to the application before me because it provides general and site specific standards (or deemed-to-comply provisions) for all advertising signs within the Scheme Area. In any event, I find that cl 3.1 and cl 3.2 of the Signage Policy, which purport to prohibit third party advertising, do not apply in the circumstances of this case because the applicant is not seeking approval for a new third party advertising sign or an extension of a time-limited approval for an existing sign beyond the approval date lapsing. Rather, the applicant is seeking to amend his current approval to remove the time limit.
Based on the evidence before me, I find that the deemedtocomply provisions of the Signage Policy are not met and, consequently, I must assess the application against the objectives of the Signage Policy (in accordance with cl 1 of the Signage Policy). I accept Mr Fairfoul's evidence that the signs form part of the current amenity of the locality. I also accept his evidence that the well maintained and manicured landscaping associated with the signs contributes positively to the amenity of the locality compared with an otherwise vacant lot. However, for the reasons given at [67], I do not consider that the signs (with or without the associated landscaping) will enhance the future amenity of the locality for the purposes of objective 2 of the Signage Policy. Further, contrary to Mr Fairfoul's opinion, I consider that objective 3 of the Signage Policy does serve a planning purpose. I find that Mr Fairfoul's evidence is inconsistent with prior decisions of the Tribunal which have found a difference in the amenity impact of general commercial signs compared with signs relating to products or services available from a site.[105] Having regard to those prior decisions, I consider planning policies that expressly or impliedly address the difference in the amenity impact between third party advertising and commercial signs by prohibiting or controlling advertisements that do not relate to services and products available from a site are informed by a planning purpose. For these reasons, I reject the applicant's contention that the signs are compatible with or generally in accordance with the objectives of the Signage Policy.
[105] See Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [71].
Consequently, I prefer the evidence of Ms Butterworth and Mr Corbellini, and I find, that the signs are inconsistent with the objectives of the Signage Policy.
Whilst it is the applicant's primary position that the signs are consistent with the Signage Policy to the extent it applies, in the alternative, the applicant contends that there are several reasons why the Signage Policy should be departed from in the circumstances of this case. I will next consider whether there is a cogent reason or sound basis to depart from the respondent's policy that the signs only relate to services and products available on the subject site.
Is there a cogent reason or sound basis to depart from the Signage Policy?
The applicant adduced expert evidence to demonstrate that access to the subject site is difficult to achieve. Based on this evidence, it is the applicant's position that constraints on achieving vehicular access amount to a cogent reason to depart from the Signage Policy.[106] The applicant points to several other cogent reasons to depart from the Signage Policy, namely:[107]
1)third party advertising has been permitted on the subject site for 20 years and is part of the fabric that makes up the current amenity of the locality;
2)the signs do not detract from the current amenity of the locality, do not introduce visual clutter or distract motorists or pedestrians, similar to the circumstances in Caratti Holding Co Pty Ltd and City of Belmont [2021] WASAT 105 (Caratti);
3)there are no safety concerns with the signs and Main Roads has raised no objection;
4)whilst it is the City's intention to amend the scheme to impose a blanket prohibition on third party advertising across all zones, no such amendment has been adopted by the City or approved by the Minister;
5)it is not the first application for approval of third party advertising on the subject site as was the case in Carrooda Pty Ltd and City of Gosnells [2022] WASAT 15; the respondent has departed from the Signage Policy on no less than five occasions by issuing time-limited approvals;
6)there are other examples of third party advertising within the Scheme Area;
7)certain forms of third party advertising are permitted by the Signage Policy such as sponsorship signage at sporting facilities within the Scheme Area; and
8)the City permits third party advertising on directional street signs and bus shelters.
[106] ts 191-192, 31 May 2023.
[107] ts 189-191, 31 May 2023.
I will first consider whether there are any constraints on vehicular access to the subject site.
The parties ultimately agreed, and I accept, that the consent authority for a crossover to the subject site from Newcastle Street or Loftus Street is the City. Pursuant to reg 12(1) of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (LG Uniform Regulations), a local government is empowered to approve a crossover giving access from a public thoroughfare to private land. Where the public throughfare is a 'government road', a local government cannot approve a crossover unless it has first obtained the approval of the Commissioner of Main Roads (Commissioner). The expression 'government road' is defined in the reg 4 of the LG Uniform Regulations as a road declared to be a government road under the Public Works Act 1902 (WA), or a highway or main road as those terms are defined in s 6 of the Main Roads Act 1930 (WA) (Main Roads Act). Section 6 of the Main Roads Act defines 'highway' to mean a road declared by proclamation to be a highway for the purposes of the Main Roads Act and includes any part thereof. Similarly, a 'main road' is defined in s 6 of the Main Roads Act to mean a road declared by proclamation to be a main road and includes any part thereof. There is no evidence before me to support a finding that either Loftus Street or Newcastle Street had been declared a government road or a highway or main road.
As Loftus Street is reserved under the MRS as 'other regional road', any development on land within or abutting a regional road reservation requires referral by the City to the Department.[108] In its response to the City dated 17 February 2022, the Department stated that, amongst other recommendations, it does not object to the signs being installed on a permanent basis subject to the following:[109]
…
With respect to a future driveway: The Department has no objection to a single point of access in principle, however, this should be located as far as practical (preferably upstream) from the signalised intersection. Alternatively, the site could be amalgamated with a neighbouring lot and future access be obtained from the lower order road network. This is in accordance with the Commission's Regional Road (Vehicular Access) Development Control Policy (D.C. 5.1), which seeks to minimise the number of new crossovers onto regional roads[.]
[108] See WAPC Instrument of Delegation, Government Gazette, 18 January 2022.
[109] Respondent's s 24 bundle, page 352.
Turning next to the expert traffic evidence on vehicular access to the subject site.
Ms Kleyweg was engaged by the applicant to provide an independent assessment of the viability of a compliant and safe vehicular access to the subject site. In Ms Kleyweg's opinion, access from Loftus Street is constrained by the level difference between the subject site and the carriageway, and the existing bicycle path.[110] Whilst Ms Kleyweg considered access to the subject site may be technically achievable by lowering the entry point, she considered that it was not reasonable in terms of the impact on surrounding traffic and from a 'cost point of view'.[111] Ms Kleyweg indicated that access from Newcastle Street would be possible as an alternative but 'the crossover would have to make a lot of compromises'.[112] Ms Kleyweg relied on the Driveways policy published by Main Roads (Main Roads Driveways Policy) for much of her analysis but acknowledged, under cross-examination, that it did not apply because it relates to State roads and highways (neither Newcastle Street or Loftus Street is a State road or a highway).[113] Nevertheless, it was Ms Kleyweg's opinion that, in practice, the Main Roads Driveways Policy (which refers to the Austroads Guide to Road Design (GTRD) Pt 4) is applied to crossovers proposed in the functional area of a signalised intersection (such as the Newcastle Street and Loftus Street intersection).[114]
[110] Witness statement of Marina Kleyweg dated 20 April 2023, page 17.
[111] ts 61, 25 May 2023.
[112] ts 59, 25 May 2023.
[113] Exhibit 14; ts 58, 25 May 2023.
[114] ts 49, 25 May 2023.
Ms Kleyweg and Ms Herget, who was called by the respondent, acknowledged that options for vehicular access to the subject site would depend on the specific form of development proposed.[115] Their view is consistent with WAPC's Development Control Policy 5.11 - Regional Roads (Vehicular Access) (DCP 5.1) which provides that, in relation to driveways on regional roads, it is necessary to consider the effects of a proposed development on traffic flow and road safety, and the volume and type of traffic that it generates.[116] Ms Kleyweg assumed a hypothetical commercial development for the subject site because it is located in a Commercial zone, with a commercial vehicle accessing the site at least once a week, either as a delivery vehicle or as a waste collection vehicle.[117]
Findings - whether departure from Signage Policy is warranted
[115] ts 65-66, 25 May 2023.
[116] DCP 5.1, cl 3.3.1; cl 3.3.5.
[117] Witness statement of Marina Kleyweg dated 20 April 2023, Annexure 2, page 1.
For the reasons that follow, I am not satisfied that there is a cogent reason (or reasons) to depart from the Signage Policy in the circumstances of this case.
First, whilst I acknowledge that vehicular access to the subject site is heavily constrained, I find, based on the evidence of the traffic experts which I accept, that there are technical or engineering solutions available to achieve vehicular access. The traffic experts acknowledged, and I find, that the options for access would depend on the form of the proposed development. I further find based on the evidence of Mr Corbellini, which I accept, that on-site parking may not be required for development.[118] If the Main Roads Driveways Policy applies to crossovers proposed in the functional area of a signalised intersection (as maintained by Ms Kleyweg), I am satisfied that it contemplates alternative access arrangements if there are no other practical locations for a driveway.[119]
[118] ts 93, 26 May 2023.
[119] Exhibit 14, pages 9-10.
Second, I accept that this is not the first application for approval of third party advertising on the subject site and that the respondent has departed from the Signage Policy on several occasions by granting approval for the signs (albeit on a time-limited basis). However, I do not consider that the prior approvals justify departure from the Signage Policy in the circumstances of this case because I have found that the signs are incompatible with the desired future character of the setting, and future amenity of the locality in terms of its character. Similarly, whilst I accept that the signs are part of the fabric that makes up the current amenity of the locality, do not detract from the current amenity, do not raise any motorist or pedestrian safety concerns, and have been on the subject site for 20 years, they are not compatible with the future amenity of the locality for the reasons already given. The circumstances of this case can be distinguished from Caratti where I found that the display of signs with third party advertising would not detract from the present or likely future amenity of the locality.[120]
[120] Caratti at [72].
Third, the absence of an amendment to LPS 2 to prohibit third party advertising is not a cogent reason to depart from the Signage Policy. As already stated, cl 67(2)(i) of the Deemed Provisions requires that I give due regard to any report of the review of a local planning scheme without the need for the review being advanced to the point where a scheme amendment has been advertised. Whilst the status of an amendment to LPS 2 is a matter to which I must have due regard, I am not satisfied it forms a sound planning basis on which to depart from the application of the Signage Policy, particularly in light of cl 3(5) of the Deemed Provisions which requires that I must have regard to each relevant local planning policy to the extent that the policy is consistent with LPS 2.
Finally, whilst I accept there are other examples of third party advertising in the Scheme Area, including displays on bus shelters and at sporting facilities, I do not consider this to be a cogent reason to depart from the Signage Policy. I find that the Signage Policy specifically excludes these forms of advertising from its scope.[121]
[121] Respondent's s 24 bundle, page 1.
I will next consider whether the signs are consistent with the objectives of the Commercial zone set out in cl 16(1) of LPS 2.
Whether the signs, as a form of unlisted use, are inconsistent with the objectives of the Commercial zone under LPS 2 and, therefore, an impermissible use?
As already stated, 'advertisement' is a use not listed in the LPS 2 Zoning Table. Consequently, the permissibility of the use is determined by reference to cl 18(4) of LPS 2, specifically, whether the use is, may be, or is not, consistent with the objectives of the Commercial zone. Before determining the extent to which the signs are consistent with the objectives of the Commercial zone, I will consider the meaning of the expression 'consistent with'.
The expression 'consistent with' is not defined in LPS 2. Where a word or expression is not defined in LPS 2, it has the meaning it has in the PD Act, or if it is not defined in the PD Act, it has the same meaning as it has in the State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes).[122] The expression 'consistent with' is not defined in the PD Act or the R-Codes. Consequently, the expression bears its ordinary and natural meaning.[123] According to the Macquarie Dictionary Online, the meaning of the expression 'consistent' includes 'agreeing or accordant; compatible; not self-opposed or selfcontradictory'.
[122] LPS 2, cl 37(2).
[123] See Phillips and Shire of Mundaring [2009] WASAT 193 at [20]-[21].
It follows that, to be consistent with the objectives of the Commercial zone, the signs must be in accordance with or compatible with the objectives of the zone. However, it is not necessary that the signs promote or are ancillary to the zone objectives for it to be consistent with those objectives.[124]
[124] WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153 (WA Timber Supplies) at [136][137]; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 192.
Pursuant to cl 16(1) of LPS 2, the objectives of the Commercial zone are:
•To facilitate a wide range of compatible commercial uses that support sustainable economic development within the City.
•To ensure development design incorporates sustainability principles, with particular regard to waste management and recycling and including but not limited to solar passive design, energy efficiency and water conservation.
•To maintain compatibility with the general streetscape, for all new buildings in terms of scale, height, style, materials, street, alignment and design of facades.
•To ensure that development is not detrimental to the amenity of adjoining owners or residential properties in the locality.
Zone objectives have full force and effect as if enacted by the PD Act.[125] They should be read and applied in a broad fashion and consistent with their planning purpose, but not pedantically.[126] When assessing a use against zone objectives, the objectives should not be considered lofty or aspirational in nature because they are 'an important expression of what planning outcomes are contemplated by the planning scheme in the relevant zone'.[127] Whether a use is consistent with zone objectives is an evaluative judgment and is not intended to be the product of a fine-grained analysis.[128]
[125] See PD Act, s 87(4); See also, Warr and Town of Cambridge (2020) WASAT 126 (Warr) at [29].
[126] Warr at [68].
[127] WA Timber Supplies at [146].
[128] Warr at [68].
In Ms Butterworth's opinion, the signs are not consistent with objectives 1, 3 and 4 of the Commercial zone.
Because the signs may advertise products and services that are unrelated to businesses located within the Scheme Area, Ms Butterworth does not consider that they support sustainable economic development within the City for the purposes of objective 1. Whilst Ms Butterworth acknowledged that the height of the signs is commensurate with the height of some of the existing nearby buildings, she considers that the signs do not maintain compatibility with the general streetscape in terms of style, materials and design of facades.[129] Consequently, Ms Butterworth is of the opinion that the signs are inconsistent with objective 3. Finally, in relation to objective 4, Ms Butterworth is of the opinion that the signs impact the existing and future amenity of the locality because an approval in perpetuity may act as a disincentive for the subject site to be redeveloped. Ms Butterworth also considers that the visual impact of the signs may not be in keeping with the likely future amenity expectations of adjoining residents at 65 Kingston Avenue (which is currently a vacant lot), particularly if the signs are approved in perpetuity.[130]
[129] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 69.
[130] Witness statement of Amanda Jane Butterworth dated 14 April 2023, para 69.
Mr Corbellini assessed the signs against the objectives of the Commercial zone and concluded, for reasons similar to those expressed by Ms Butterworth, that they are not consistent with objectives 3 and 4 of the Commercial zone.[131]
[131] Substituted witness statement of John Corbellini dated 5 May 2023, para 74.
Mr Fairfoul is of the opinion that the signs are consistent with the objectives of the Commercial zone because there is a broad range of uses that are capable of approval in the zone (and of existing in harmony), including uses that 'are not what might ordinarily be described as uses that are commercial in nature'.[132] Mr Fairfoul considers that all uses that are capable of approval in the zone are relevant when considering the scope of the objectives of the Commercial zone.[133] Mr Fairfoul identified that the subject site is a small lot that is heavily constrained, particularly in relation to vehicular access (and, therefore, parking). He observed that the subject site is approximately 650 metres from the nearest train station, being towards the edge of the walkable catchment. He also observed that there is limited public transport bus availability, with only one service route.[134] Consequently, in Mr Fairfoul's opinion, removal of the time limit would not restrict future redevelopment of the subject site to any greater extent than do the current site characteristics.[135]
[132] Witness statement of Sean Fairfoul dated 18 April 2023, paras 88-89.
[133] Witness statement of Sean Fairfoul dated 18 April 2023, para 88.
[134] Witness statement of Sean Fairfoul dated 18 April 2023, para 157.
[135] Witness statement of Sean Fairfoul dated 18 April 2023, para 169.
The planning experts generally agreed that the signs are consistent with objective 2 of the Commercial zone.
Findings
It is clear from the terms of cl 18(4) of LPS 2 that zone objectives are intended to have a central role in determining whether development involving a use not listed should be approved (or in this case whether the time limit should be deleted allowing the approval to operate in perpetuity).
Whilst I accept that there are a broad range of uses that are capable of approval (and of existing in harmony) in the Commercial zone, this consideration alone does not mean the signs are consistent with the zone objectives. An assessment of the advertisement use against the zones objectives is required. I prefer the evidence of Ms Butterworth and Mr Corbellini in relation to that assessment, and I find, that the advertisement use is not consistent with objectives 1, 3 and 4 of the Commercial zone for the purposes of cl 18(4)(b) of LPS 2 notwithstanding that the signs are the subject of an approval (albeit of a time-limited nature). I find that the signs do not maintain compatibility with the general streetscape in terms of style, materials and design of facades and, for the reasons already given, are detrimental to the desired future character and amenity of the locality. The planning experts agreed that the subject site is heavily constrained in terms of its redevelopment potential. I consider that removing the time limit is likely to act as a further constraint to its redevelopment.
My findings on this issue militate against the deletion of condition 1, particularly in circumstances where the signs may be detrimental to the future amenity of adjoining owners at 65 Kingston Avenue.
Whether the history of time-limited approvals for the signs supports maintenance of the time limit?
The respondent says that the applicant's time-limited approval recognises that development possibilities for the subject site are limited, particularly in relation to vehicular access.[136] It further says that the time limit on the current approval is consistent with these historical concerns which continue. Because the subject site is located at a prominent gateway or entry point into the Scheme Area, it is the respondent's position that a time-limited approval may allow appropriate development to occur in the longer term that is in a form more consistent with the planning framework.[137] For these reasons, the respondent contends that the time limit should be maintained.
[136] Respondent's closing submissions. para 165.
[137] Respondent's closing submissions. paras 166-167.
Council considered an application to amend the approval for the signs at an ordinary meeting held on 6 March 2018 (which resulted in the 2018 amendment). The minutes of that meeting relevantly provide:[138]
… Despite the current vehicle access requirements, the City recognises the potential for the subject site to be developed in the future, particularly given the Commercial zoning and the six storey height permitted for the site, as well as the potential for the site to coordinate development and access arrangements with adjoining properties. As such, it is considered necessary for the billboard approval to again be time limited, consistent with the previous approvals for the billboards[.]
[138] Respondent's s 24 bundle, page 312.
The applicant stated that he has no desire to develop the subject site for another use, and that he derives income from the signs.[139] He understands that redevelopment would be difficult and intends to retain the subject site as it is part of his family's long history in the area.[140]
Findings
[139] Witness statement of Graham Victor Cerini dated 19 May 2023 at paras 31 and 34.
[140] Witness statement of Graham Victor Cerini dated 19 May 2023 at para 7.
There is no dispute, and I find, that the respondent granted a timelimited approval for the signs because the development possibilities of the subject site are limited.[141] I further find that these circumstances have not changed because vehicular access to the subject site remains heavily constrained.
[141] Respondent's s 24 bundle, page 288 and page 312.
Whilst I accept that the applicant may not wish to redevelop the subject site, personal preferences are not matters that are relevant to my determination.[142]
[142] Alcock and Town of Claremont [2013] WASAT 83 at [52].
Consequently, in the circumstances of this case, I find that the historical bases for the time-limited approvals for the signs, which have not changed, are factors that weigh in favour of maintaining the time limit on the current approval.
Conclusion
The applicant seeks to delete the time limit on the current approval for the signs which would permit the display of third party advertising in perpetuity. Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, I have concluded that the correct and preferable decision is to dismiss the application for review.
Time-limited approvals may be appropriate where there is likely to be some change in the planning framework or in the character of a locality. In the context of the applicable planning framework, I am satisfied that there will be a change in the character of the locality and, based on the evidence before me, the signs will be incompatible with the future amenity of the locality in terms of its character.
I have found that the signs do not meet the deemed-to-comply provisions of the Signage Policy and are incongruous with a number of its objectives. Whilst the respondent has departed from the Signage Policy in granting the applicant previous time-limited approvals, I have not identified a cogent reason to depart from it in the circumstances of this application.
The respondent's reasons for granting time-limited approvals, such as limited development opportunities and heavily constrained vehicular access, are unchanged and, consequently, are matters that weigh in favour of maintaining the time limit. Proposed amendments to LPS 2, and the Local Planning Strategy, which may result in a blanket prohibition on third party advertising in the Scheme Area, is a matter to which I have given some weight, but it is not determinative.
Moreover, I have found that the signs are not consistent with objectives 1, 3 and 4 of the Commercial zone in which the subject site is located.
In light of these findings, it would not be appropriate to delete the time limit for the current approval. Accordingly, I will affirm the respondent's decision made on 6 March 2018 to impose condition 1 which limits the current approval to 21 October 2029.
Orders
The Tribunal orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 6 March 2018 to impose condition 1 which limits the approval of two existing billboard signs at No 596 - 598 (Lot 116) Newcastle Street, West Perth, to 21 October 2029, is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
17 AUGUST 2023
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