D'Agostino v Greater Shepparton City Council
[2022] VSC 465
•17 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2018 02411
| RICHARD CHARLES D’AGOSTINO and ROCKY PAUL D’AGOSTINO | Applicants |
| v | |
| GREATER SHEPPARTON CITY COUNCIL | Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Determined on the papers |
DATE OF JUDGMENT: | 17 August 2022 |
CASE MAY BE CITED AS: | D’Agostino v Greater Shepparton City Council |
MEDIUM NEUTRAL CITATION: | [2022] VSC 465 |
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LOCAL GOVERNMENT – Town planning – Application to Council for permit to put up large freestanding sign for business and promotional purposes – Permit not granted – Application to Victorian Civil and Administrative Tribunal to review decision – Tribunal affirmed Council decision and ordered no permit be granted – Application for leave to appeal from Tribunal on a question of law – Whether Tribunal misinterpreted the Planning Scheme, erred in applying planning policy guidelines, or failed to have regard to surrounding area – No error of law in Tribunal’s reasons – Appeal has no real prospect of success – Leave to appeal refused – Planning and Environment Act 1987 (Vic), s 79.
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REPRESENTATION: | Counsel | Solicitors |
| For the Applicants | In person | |
| For the Respondent | Mr R Appudurai | Russell Kennedy |
HER HONOUR:
Richard and Rocky D’Agostino (the applicants) own a block of land at 309 Midland Highway, Shepparton East, on the corner of Midland Highway and Doyles Road. In November 2016, they applied to the Greater Shepparton City Council for a permit to erect a large, freestanding, internally illuminated sign set back about one metre from the Doyles Road frontage. At that time, the land was being used for unmanned diesel fuel sales, from a shipping container structure located about 25 metres back from the road.
The Council had not made a decision on the application by March 2018, and so the applicants applied to the Victorian Civil and Administrative Tribunal to review the Council’s failure to grant the permit within the prescribed time.[1] Before the hearing of the application for review, the Council advised the Tribunal that, had it been in a position to do so, it would have issued a planning permit for a smaller sign.
[1]Planning and Environment Act 1987 (Vic), s 79 (Planning Act). Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) deems a failure to make a decision within the time specified in the enabling enactment to be a decision by the decision-maker at the end of that period to refuse to make the decision. The ‘prescribed time’ for the purposes of s 79 of the Planning Act in this case was 60 days: Planning and Environment Regulations 2015 (Vic), reg 32(1)(b).
The applicants opposed any reduction in size. They pressed their application for a permit to erect a sign 4.5 metres wide and 8.4 metres high. They proposed to install the sign 2.1 metres above the ground, which would make the sign’s overall height 10.5 metres. Both sides of the proposed sign were to have an area of 37.8 square metres, and both sides were to be internally lit. Part of the proposed sign was to be used to identify the diesel business on the site, and to advertise the price of diesel from time to time. The remainder was to be used for promotional purposes, including to advertise an engineering business operated by the applicants from an adjacent site.
Under the Greater Shepparton Planning Scheme, the applicants’ land is in the Industrial 1 Zone (IN1Z). Clause 52.05 of the Planning Scheme makes detailed provision for where and in what circumstances a permit is required to construct or put up for display a sign. In industrial areas including the IN1Z, a permit is required to put up a business identification sign with an area of greater than 8 square metres, to put up an internally illuminated sign with an area of greater than 1.5 square metres, and to put up a promotion or major promotion sign.
The application for review was heard by the Tribunal, constituted by Member Birtwistle, on 2 October 2018. On 25 October 2018, the Tribunal affirmed the decision of the Council and ordered that no permit be granted. On the same day, the Tribunal published detailed Reasons for its orders.[2] The essence of the Tribunal’s reasoning was that the proposed sign was inappropriately large and imposing, and would be out of character with the modest and low key physical context of the site.
[2]D’Agostino v Greater Shepparton CC [2018] VCAT 1660 (Reasons).
In this proceeding, the applicants seek leave to appeal from the Tribunal’s orders. The application is made under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), which provides for an appeal on a question of law from an order of the Tribunal, with leave of the Trial Division of this Court. Three questions of law are set out in the notice of appeal, as follows:
(1)Did the Member misinterpret clause 52.05-12 category 2 of the City of Greater Shepparton Planning Scheme in holding that promotion signs are not part of the purpose of land specified in clause 52.05-12 category 2 of the Planning Scheme?
(2)Did the Member err in applying clause 21.04-4 as being a policy guideline to the making of the decision?
(3)Did the Member err in finding that the relevant [basis] to assess the merits of the application was the features of the subject site as opposed to the features of the surrounding areas?
The orders sought in the notice of appeal include an order that the time for filing the application be extended by one day, that the Tribunal’s orders be set aside, and that the permit be granted.
The proceeding was originally listed for trial in April 2020. At that time, due to the COVID-19 pandemic, almost all trials in the Common Law Division of the Court were being heard remotely by audio-visual link. The applicants, who have represented themselves in this proceeding from the outset,[3] advised the Court that they did not have the facilities to participate in a trial by audio-visual link, and requested an adjournment. The Council did not object to that course, and so the trial was adjourned to a date to be fixed. Unfortunately, it was not possible to relist the trial for an in-person hearing during 2020 or 2021. In October 2021, the parties sought orders by consent for the proceeding to be determined on the papers. Following the filing of further written submissions, the proceeding was referred to me for decision.
[3]They were represented at the Tribunal hearing by counsel.
For the reasons that follow, the time to commence the proceeding will be extended, but leave to appeal will be refused and the proceeding will be dismissed.
Tribunal’s Reasons
The Tribunal’s Reasons are prefaced by a useful summary of information relevant to the application:[4]
[4]Citations omitted.
Description of proposal
Erection of an internally illuminated, double sided (business and major promotion) sign. The sign would be 4.5 metres wide by 8.4 metres high and be 2.1 metres above the ground (overall height of structure is 10.5 metres). It would be a freestanding sign setback 1 metre from the Doyles Road frontage. The total display area of each side of the sign is 37.8 sq.m.
Nature of proceeding
Application under section 79 of the Planning and Environment Act 1987 – to review the failure to grant a permit within the prescribed time.
Planning scheme Greater Shepparton Planning Scheme Zone and overlays
Industrial 1 Zone (IN1Z)
Land Subject to Inundation Overlay (LSIO)
Abuts Road Zone – Category 1 (RZ1)
Permit requirements Clause 52.05-8 – Erection and display of advertising signage Land description The review site is located on the corner of Midland Highway and Doyles Road, Shepparton East.
The land is currently used for unmanned diesel fuel sales with a freestanding container structure located approximately 25 metres from the frontage.
Tribunal inspection Unaccompanied subsequent to the hearing
After introducing the subject matter of the proceeding, the Tribunal identified the key issues to be:
(a) how well the proposed sign responds to the physical context of the location including the existing built form and streetscape character and the policy context for major promotion signs; and
(b) how to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development, as required by cl 71.02-3 of the Planning Scheme.
The Tribunal then outlined the relevant planning policy context, as follows:
12 The land forms part of an industrial precinct that is zoned Industrial 1. Land opposite the review site, in both Doyles Road and Midland Highway, is zoned Commercial 2. The purposes of the Industrial 1 zone are to implement the Municipal Planning Strategy and the Planning Policy Framework and to provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.
13 Advertising signage in the Industrial 1 zone is in Category 2 of clause 52.05. This category is “low limitation”. The purpose of signage controls in such areas is:
To provide for adequate identification signs and signs that are appropriate to office and industrial areas.
14 In a Category 2 area, a Business Identification sign does not require a planning permit if the total display area of all signs to each premise does not exceed 8 sq.m. An internally illuminated sign does not require a planning permit if the display area does not exceed 1.5 sq.m. The sign must be more than 30 metres from a residential zone or pedestrian or traffic lights.
15 A Promotion Sign or Major Promotion Sign requires a planning permit.
16. The application proposes the erection of one signage structure that will contain component parts. As identified on the application plans, a small part of the sign face will be used to identify the fuel company and diesel price related to the business that operates on the land. The remainder of the sign will be used for promotional purposes. The entire sign will be internally illuminated.
17 Clause 52.05-2 requires that if a sign can be interpreted in more than one way, the most restrictive requirement must be met.
18 The definition of a Business Identification sign is:
A sign that provides business identification information about a business or industry on the land where it is displayed. The information may include the name of the business or building, the street number of the business premises, the nature of the business, a business logo or other business identification information.
19 The definition of Major Promotion sign is:
A sign which is 18 sq.m. or greater that promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold or for hire on the land or in the building on which the sign is sited.
The Tribunal referred to some discussion during the hearing about the nature of the sign for which a permit was sought. It observed that there could be no dispute that the permit being sought related to a combination of business and promotion signage, because the internally illuminated sign area would exceed 18 square metres and would promote goods and services sold on the land and elsewhere.[5]
[5]Reasons, [20]–[21].
Next, the Tribunal set out the decision guidelines in cl 52.05-8 of the Planning Scheme, concerning an application for a permit to construct or put up for display a sign. The following guidelines relate to all signs:[6]
[6]Reasons, [22].
Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
The character of the area including:
• The sensitivity of the area in terms of the natural environment, heritage values, waterways and open space, rural landscape or residential character.
• The compatibility of the proposed sign with the existing or desired future character of the area in which it is proposed to be located.
• The cumulative impact of signs on the character of an area or route, including the need to avoid visual disorder or clutter of signs.
• The consistency with any identifiable outdoor advertising theme in the area.
Impacts on views and vistas:
• The potential to obscure or compromise important views from the public realm.
• The potential to dominate the skyline.
• The potential to impact on the quality of significant public views.
• The potential to impede views to existing signs.
The relationship to the streetscape, setting or landscape:
• The proportion, scale and form of the proposed sign relative to the streetscape, setting or landscape.
• The position of the sign, including the extent to which it protrudes above existing buildings or landscape and natural elements.
• The ability to screen unsightly built or other elements.
• The ability to reduce the number of signs by rationalising or simplifying signs.
• The ability to include landscaping to reduce the visual impact of parts of the sign structure.
The relationship to the site and building:
• The scale and form of the sign relative to the scale, proportion and any other significant characteristics of the host site and host building.
• The extent to which the sign displays innovation relative to the host site and host building.
• The extent to which the sign requires the removal of vegetation or includes new landscaping.
The impact of structures associated with the sign:
• The extent to which associated structures integrate with the sign.
• The potential of associated structures to impact any important or significant features of the building, site, streetscape, setting or landscape, views and vistas or area.
The impact of any illumination:
• The impact of glare and illumination on the safety of pedestrians and vehicles.
• The impact of illumination on the amenity of nearby residents and the amenity of the area.
• The potential to control illumination temporally or in terms of intensity.
The impact of any logo box associated with the sign:
• The extent to which the logo box forms an integral part of the sign through its position, lighting and any structures used to attach the logo box to the sign.
• The suitability of the size of the logo box in relation to its identification purpose and the size of the sign.
The need for identification and the opportunities for adequate identification on the site or locality.
The impact on road safety. A sign is a safety hazard if the sign:
• Obstructs a driver’s line of sight at an intersection, curve or point of egress from an adjacent property.
• Obstructs a driver’s view of a traffic control device, or is likely to create a confusing or dominating background that may reduce the clarity or effectiveness of a traffic control device.
• Could dazzle or distract drivers due to its size, design or colouring, or it being illuminated, reflective, animated or flashing.
• Is at a location where particular concentration is required, such as a high pedestrian volume intersection.
• Is likely to be mistaken for a traffic control device, because it contains red, green or yellow lighting, or has red circles, octagons, crosses, triangles or arrows.
• Requires close study from a moving or stationary vehicle in a location where the vehicle would be unprotected from passing traffic.
• Invites drivers to turn where there is fast moving traffic or the sign is so close to the turning point that there is no time to signal and turn safely.
• Is within 100 metres of a rural railway crossing.
• Has insufficient clearance from vehicles on the carriageway.
• Could mislead drivers or be mistaken as an instruction to drivers.
The Tribunal also set out the specific decision guidelines in cl 52.05-8 relating to major promotion signs, which require the responsible authority to consider as appropriate:[7]
The effect of the proposed major promotion sign on:
• Significant streetscapes, buildings and skylines.
• The visual appearance of a significant view corridor, viewline, gateway location or landmark site identified in a framework plan or local policy.
• Residential areas and heritage places.
• Open space and waterways.
[7]Reasons, [23].
Clause 52.05-8 also contains locational principles for major promotion signs, which the Tribunal set out:[8]
• When determining the effect of a proposed major promotion sign, the following locational principles must be taken into account:
• Major promotion signs are encouraged in commercial and industrial locations in a manner that complements or enhances the character of the area.
• Major promotion signs are discouraged along forest and tourist roads, scenic routes or landscaped sections of freeways.
• Major promotion signs are discouraged within open space reserves or corridors and around waterways.
• Major promotion signs are discouraged where they will form a dominant visual element from residential areas, within a heritage place or where they will obstruct significant viewlines.
• In areas with a strong built form character, major promotion signs are encouraged only where they are not a dominant element in the streetscape and except for transparent feature signs (such as neon signs), are discouraged from being erected on the roof of a building.
[8]Reasons, [24].
The Tribunal then turned to the relevant planning policies set out in the Municipal Strategic Statement, which at that time was in cl 21.04 of the Planning Scheme:
25 Clause 21.04-4 of Council’s Municipal Strategic Statement notes that the appearance of main road approaches to urban centres is important in maintaining a strong level of civic pride.
26 Clause 21.04-4 notes that advertising signage is a key and often highly visible component of the physical environment of the municipality and the inappropriate design or placement of advertising signs can have a significant effect on the appearance and visual amenity of an area. Council wants to guide the location and display of signage within the municipality to ensure signage is compatible with the character and architecture of local streetscapes. The design, form, size and placement of advertising signs should be controlled so as to protect and enhance the appearance of rural and urban areas and to avoid signs that are excessive, confusing or incompatible with the character of the surrounding area.
27 An Urban Design objective is to control the number of signs and ensure that the appearance, size, illumination or location of signs does not adversely affect the visual amenity of the natural environment or the built form in the municipality. An objective is to ensure that the location, form and size of signs complement the dominant character of any urban or rural landscape, building, site or area on which they are erected.
28 When considering an application for an advertising sign, the following policy guidelines [in cl 21.0-4] guide decision-making:
Fewer signs displaying a simple clear message are encouraged.
Advertising signage is encouraged to be primarily for business identification providing basic identification information of the business.
Suspended under-verandah signs should be limited to one per shopfront, except on large premises where the limit should be one per ten metres of shop front.
Above-verandah signs should be attached to the upper façade or parapet, parallel/horizontal to the road with minimal projection.
Sky signs, high wall signs, projecting off-wall signs on upper facades and signs that project above parapets, wall, verandahs, roof lines or building fascias are discouraged in all areas.
Freestanding signs should be limited to one sign per premises with multiple occupancies encouraged to share sign space.
‘V’ board signs are discouraged in all areas.
Where a building is set back from the street, signs are encouraged to be located within the boundary and should be orientated to be parallel or at right angles to the street.
Where possible signs should be located on the building.
Pole signs should be limited to one per frontage and should be no higher than the surrounding buildings.
Internally illuminated promotional signs are discouraged.
Permanent bunting, streamers, banner, balloons, animated, reflective signs or similar devices, are strongly discouraged in all zones due to the detriment to the amenity of the area and the high level of visual clutter and dominance. These signs may be considered for temporary (3 month maximum) promotions only.
Major Promotional signs are discouraged, but if approved are to be confined to Regional & Sub-regional Centres attached to a building wall and should not be more than 3 metres above the ground or be internally or externally illuminated.
Having noted that VicRoads did not object to the proposal, the Tribunal then set out its findings.[9]
[9]Citations omitted.
30 Planning policies recognise that signage is a legitimate commercial activity. It can serve important functions in relation to public information and awareness and can add interest, colour and character to an area.
31 In my view, the critical element in considering outdoor advertising applications is to ensure that any sign is of a scale, form, and in a location that is appropriate in the context of the existing physical environment. Any sign must also be consistent with planning policies guiding the future development of the locality and have regard to any potential impacts on the amenity of surrounding uses.
32 Promotion signage is a legitimate form of advertising. I have reached my decision by considering this proposal from a neutral rather than negative point of view, consistent with the nature of the Tribunal’s findings in Kings Funeral Services [v Greater Geelong CC [2008] VCAT 509]. As Senior Member Byard pertinently observed:
Sign cases, including this one, have to be judged on their own merits and on their own design, site, context and location.
33 That is the approach that I have taken here.
34 Mr Watts took me to a number of examples of large signs in the vicinity. This signage is almost entirely business identification signage, advertising the businesses that operate on the site. Some are large. Many are free standing signs that advertise multiple businesses that operate from the site. Examples of these include the Bunnings store approximately 600 metres west of the review site, the Homemaker Centre (approximately 300 metres west), and other car sales sites (including Ford and Audi amongst others) approximately 100 metres east of the review site.
35 I have undertaken a site inspection of the review site and the sites shown in the photographic examples tendered by the applicant My inspection confirms two important distinctions in terms of built form and policy context.
36 Firstly, much of the sign content relates to the businesses that occur on the land on which they are located. Many are part of an integrated branding strategy with a freestanding pole sign providing the logo of the company (examples are the car sales operations including Ford and Audi). In these examples, while there are large freestanding signs, the actual area of the advertising face is modest. Where they are freestanding, they sit within the front setback but often sit within a landscaped setting, and have a backdrop of built form that the signage nestles into.
37 Secondly, the examples provided are all on sites zoned either Commercial 1 or Commercial 2. Advertising signs within these zones sit in Category 1 – Commercial Areas of Clause 52.02. The purpose of this category is:
To provide for identification and promotion signs and signs that add vitality and colour to commercial areas.
38 This is different to Category 2 – Office and Industrial which applies to the review site. Its purpose is:
To provide for adequate identification signs and signs that are appropriate to office and industrial areas.
39 In my view, the two categories provide a different planning policy context. One clearly envisages promotion signs as being part of the purpose of [the] area. This is not a purpose expressed in Category 2 areas, in which the review site is located.
40 Clauses 15.01-1S and 52.05 require me to be guided by the on-ground features of the site and surrounds. The site is currently developed with a large shipping container style structure. There is no other built form. The remainder of the site consists of crushed rock and concrete bollards. It is devoid of any landscaping.
41 The sign is proposed to be double sided and inset 1 metre from the property boundary to Doyles Road. As there is no vegetation or built form in the vicinity of the proposed sign location, it will be highly visible. Conversely, in many of the examples provided by Mr Watts, the large freestanding signs are located on properties that have existing buildings and structures. These backdrops mitigate the bulk considerably. Many properties also have comprehensive landscaping schemes.
42 The purpose of Clause 21.04 is to guide the discretion available to a decision maker. I accept that this is Council’s position and that its submission seeks to reduce the overall size of the sign proposed to be in the order of 7.5 metres high by 2.5 metres wide, meaning the sign would not be a Major Promotion Sign.
43 My findings on this issue relate to the size of the sign proposed. I am not concerned that the content of the sign will not predominantly relate to a business operating from the review site. In other words, had the sign only related to the business that operates on the site I would still have found that its size is excessive for its setting. The visual impact of the sign will be the result of its dimensions and form, rather than the content of the advertising.
44 The sign will appear as a stand-alone sign in an isolated context. There are no significant buildings that would provide a substantive backdrop to the sign. The height of the sign is not comparable to any adjacent building on the site.
45 Unlike other freestanding signage in the vicinity, the sign does not integrate with other built form elements. The existing large freestanding signs in this section of the road are visually absorbed within that context and while they are prominent structures, they are viewed as part of the area’s character, without detracting from it.
46 The proposed sign is close to the road carriageway and I find that, given its size, it would appear as both a prominent and dominant element in this setting and to road users. I do not find the relationship to be positive.
47 On balance, I agree with the Council that a sign of the size sought would dominate the site. The extent of built form on the site is modest. The overall scale, proportions and height of the sign would tend to overwhelm its immediate built form setting in a way that is not a characteristic of development in this particular location. I regard that outcome as being inconsistent with the decision guidelines at Clauses 52.05-3 and 52.05-6.
48 I am unpersuaded by Council’s position that the sign could be reduced in height and scale noting also that this was opposed by the applicant. A 7.5 metres high sign with a width of 2.5 metres will still overwhelm its setting. There are not buildings on the site or nearby on the adjoining site that are of sufficiently large scale and proportions capable of anchoring the proposal.
49 My inspection confirms that where freestanding signs exist in the immediate vicinity, these are typically commensurate with the scale of the surrounding buildings. I am not satisfied the sign is of an appropriate size, scale or location relative to the low-rise built form on the site in which the sign is proposed to be located. Relative to the nearby buildings, I am not persuaded a sign with 37.8 sq.m. of display area (for each side), that is 10.5 metres high is in keeping with the character of the existing site setting.
50 Clause 52.05 requires that decision makers have regard to the character of the area and the relationship to the streetscape, setting or landscape. Currently the site is developed with a relatively low-key structure. It cannot be said to make a contribution either way to the landscape. However, the addition of a large freestanding sign proximate to the frontage of the site changes the impact on the landscape. I am persuaded by Council that this is not the visual outcome that the Planning Scheme is seeking to achieve.
51 I am of the view that the proposed sign would be visually imposing on what is otherwise a modest site. In conclusion, having regard to the submissions and the planning policy and zoning, I find the proposed sign inappropriate for the following key reasons:
• The site is located on a prominent entry road to Shepparton. Whilst these locations can often host signs, in this case, the physical context of the site is modest and low key. It is not a robust environment.
• The proposed structure and signage would appear to sit as an isolated element in an open environment. There is no physical context for the proposal.
• The proposed signage would dominate the site. The structure and signage does not represent a high quality urban design response.
• The proposed signage does not complement or enhance the character of the site. The character of the site is open, and the proposed signage would appear as an out of character element.
Before concluding, the Tribunal referred to two earlier decisions that were relevant to the application before it:
(a) In 2006, the Tribunal refused a permit for a major promotion sign to be located facing the site’s Midland Highway frontage.[10] The Council had not sought to rely on that decision, because the proposed siting of the sign was different. Accepting that position, the Tribunal noted that the 2006 decision was generally consistent with its own reasoning. In particular, the Tribunal in 2006 found that the Planning Scheme’s policies are clearly directed towards enhancing streetscapes, gateways and visual amenity — worthwhile planning outcomes with which the proposal was not consistent.
(b) In 2005, the Tribunal had refused an application for a permit for a major promotion sign on the adjoining site owned by the applicants. The Tribunal’s reasons for refusing that application were that the proposal would represent a very discernible departure from the existing pattern of signage in the area.
[10]D’Agostino v Shepparton CC [2006] VCAT 1988.
The Tribunal affirmed the decision of the responsible authority and ordered that no permit was to issue.
Grounds of appeal and general approach
As mentioned, the notice of appeal in this proceeding identifies three questions of law, with supporting grounds of appeal. I understand those questions to be:
(a) Did the Tribunal misinterpret cl 52.05-12 Category 2 of the Planning Scheme in holding that promotion signs are not part of its purpose?
(b) Did the Tribunal err in applying cl 21.04-4 as a relevant policy guideline?
(c) Did the Tribunal fail to have regard to the features of the surrounding areas?
The applicants filed three sets of written submissions in the proceeding. On 3 February 2020, they filed written submissions in support of their proposed appeal. On 16 March 2020, they filed submissions in response to the Council’s outline of submissions. Finally, on 10 November 2021, they filed a further written submission.
Unfortunately, these written submissions were not easy to follow. They did not directly address the questions of law raised in the notice of appeal, and made a number of other arguments about the correctness of the Tribunal’s decision. Doing the best I can, I understand those additional arguments to be:
(a) The Tribunal failed to undertake a de novo review of the application;
(b) The Tribunal’s decision was inconsistent with its decision in OSO International Pty Ltd v Greater Shepparton CC,[11] in which it granted a permit for a sign of similar size and orientation at a site in Numurkah Road, Shepparton;
(c) The Tribunal misinterpreted cl 15.01-1S and cl 52.05 of the Planning Scheme; and
(d) The Tribunal did not properly consider the planning history of the site, in particular the 18 previous Tribunal decisions concerning permit applications for the site.
[11] [2016] VCAT 1709.
For completeness, I will consider these additional arguments, although the applicants did not seek to amend their notice of appeal to include them as grounds of appeal.
Before turning to the applicants’ grounds of appeal and their additional arguments, I make the following general observations about my approach to determining this proceeding.
First, I may grant leave to appeal only if I am satisfied that the appeal has a real prospect of success.[12] The applicants must demonstrate that their appeal’s prospects are real and not fanciful; they need not demonstrate that it is likely to succeed.[13] However, satisfaction that the appeal has a real prospect of success does not dictate that leave must be granted.[14] Other considerations that are relevant include:
[12]VCAT Act, s 148(2A).
[13]Note Printing Australia Ltd v Leckenby (2015) 50 VR 44, [82] (Tate JA, Whelan and Ferguson JJA agreeing), applying Kennedy v Shire of Campaspe [2015] VSCA 47, [11]–[14].
[14]Metricon Homes Pty Ltd v Softley (2016) 49 VR 746, [29] (Warren CJ, Tate JA and Robson AJA agreeing).
(a) the importance of the question of law in respect of which leave is sought;[15]
[15]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, [11] (Phillips JA, Tadgell and Batt JJA agreeing).
(b) whether the claimed error of law would have made any difference to the order made by the Tribunal;[16] and
(c) whether the questions of law sought to be raised on appeal were raised before the Tribunal.[17]
The overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case, to all parties, not only the applicant for leave.[18]
[16]Forster v Legal Services Board (2013) 40 VR 587, [137] (Kyrou AJA, Weinberg and Harper JJA agreeing).
[17]Dura (Australia) Constructions Pty Ltd v VMIA [2012] VSC 114, [70]–[72]; Kornucopia Pty Ltd v Zhang [2019] VSC 439, [60]–[65]; Lucic v Henry (2021) 64 VR 252, [45], [47].
[18]Hulls, [16] (Phillips JA, Tadgell and Batt JJA agreeing).
Second, an appeal under s 148 of the VCAT Act lies only on a question of law. It is not an occasion to reconsider the planning merits of the Tribunal’s decision, or the weight that it gave to the various matters that were relevant to its decision.
Third, the burden rests on the applicants to positively establish that the Tribunal went wrong in law, in the sense that it made some error of law that vitiated its decision.[19]
[19]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 (Smith J, Adam J agreeing); Hoskin v Greater Bendigo City Council (2015) 48 VR 715, [100].
Fourth, I must read the Tribunal’s Reasons fairly, in context and as a whole,[20] and not ‘minutely and finely with an eye keenly attuned to the perception of error’.[21]
[20]Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [3] (Ashley JA), [19]–[22] (Redlich JA).
[21]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Did the Tribunal misinterpret cl 52.05-12 Category 2 of the Planning Scheme?
The applicants submitted that the Tribunal erred in distinguishing between Office and Industrial – Category 2 and Commercial areas – Category 1 in cl 52.05-12 of the Planning Scheme. They argued that there is no distinction made in those two categories for a promotional sign with an area of greater than 8 square metres, because a permit is required for such a sign in both Category 1 commercial areas and Category 2 industrial areas. I understand that this argument related to the distinction the Tribunal made at [37] and [38] of its Reasons between signs in the IN1Z and signs on nearby sites zoned either Commercial 1 or Commercial 2.
Further, the applicants took issue with the Tribunal’s statement at [39] of the Reasons that the two categories provide a different planning policy context, in that promotional signs are part of the purpose of Category 1 areas and are not expressed to be a purpose in Category 2 areas. They submitted that the Tribunal did not properly consider or understand the difference in policies and conditions that applied and must be met in the two categories. They pointed out that there is no height restriction for internally illuminated signs in Category 2 areas.
Consideration
I do not consider that there was any error in the Tribunal’s interpretation and application of cl 52.05-12 Category 2 of the Planning Scheme.
Clause 52.05 of the Planning Scheme identifies four different categories of sign control:
(a) cl 52.05-11 provides minimum limitation controls for Category 1 – Commercial areas;
(b) cl 52.05-12 provides low limitation controls for Category 2 – Office and industrial;
(c) cl 52.05-13 provides medium limitation controls for Category 3 – High amenity areas; and
(d) cl 52.05-14 provides maximum limitation controls for Category 4 – Sensitive areas.
Each clause sets out the purpose for the relevant category. It then specifies the permit requirements for the category, in the manner described in cl 52.05-2:
Requirements
Sign categories
Clauses 52.05-11 to 52.05-14 specify categories of sign control. The zone provisions specify which category of sign control applies to the zone.
Each category is divided into three sections.
If a sign can be interpreted in more than one way, the most restrictive requirement must be met.
Section 1
A sign in Section 1 of the category may be constructed or put up for display without a permit, but all the conditions opposite the sign must be met. If the conditions are not met, the sign is in Section 2.
Some overlays require a permit for Section 1 signs.
Section 2
A permit is required to construct or put up for display a sign in Section 2.
This does not apply to a sign specified in Clause 52.05-10.
All the conditions opposite the sign must be met. If the conditions are not met, the sign is prohibited.
Section 3
A sign in Section 3 is prohibited and must not be constructed or put up for display.
…
The site of the proposed sign is zoned IN1Z and so cl 52.05-12 Category 2 – Office and industrial was relevant to the permit application. It provides:
Category 2 - Office and industrial
Low limitation
Purpose
To provide for adequate identification signs and signs that are appropriate to office and industrial areas.
Section 1 - Permit not required
Sign
Condition
Bed and breakfast sign
Business identification sign
Home based business signPole sign
The total display area of all signs to each premises must not exceed 8 sqm. This does not include a direction sign.
Direction sign
Only one to each premises.
Internally illuminated sign
The display area must not exceed 1.5 sqm. The sign must be more than 30 m from a residential zone or pedestrian or traffic lights.
Section 2 - Permit required
Sign
Condition
Any sign not in Section 1
None specified
Section 3 - Prohibited
Sign
Condition
Nil
None specified
The Tribunal correctly set out the respective purposes of Category 1 – Commercial areas and Category 2 – Office and Industrial at [37] and [38] of the Reasons. The Tribunal was correct to observe, at [39], that promotion signs are part of the purpose of Category 1 and that is not a purpose expressed for Category 2 areas.
The Tribunal was also correct to identify, at [14] and [15] of the Reasons, why a permit was required for the proposed sign. There were three separate reasons why a permit was required:
(a) first, the proposed sign was a business identification sign with a display area of more than 8 square metres – and so did not meet the conditions for a business identification sign for which no permit was required;
(b) second, it was to be internally illuminated, with a display area in excess of 1.5 square metres – and so was not an internally illuminated sign that could be displayed without a permit; and
(c) third, it was a promotion sign and a major promotion sign – that is, a sign not specified in Section 1.
The applicants are correct to point out that there is no height restriction for internally illuminated signs in Category 2 areas. In fact, no sign is prohibited outright in Category 2 areas, and there are no height limits specified for any kind of sign. While some smaller signs may be put up without a permit, most signs require a permit. Any permit application must be considered on its merits, having regard to the decision guidelines specific to signs in cl 52.05-8, as well as other relevant provisions of the Planning Scheme. Unsurprisingly, these direct attention to the ‘proportion, scale and form’ of the proposed sign, among other matters.
There is no real prospect of establishing error in relation to this question of law.
Did the Tribunal err in applying cl 21.04-4 as a relevant policy guideline?
The applicants took issue with the Tribunal’s reference at [28] of the Reasons to the decision guidelines in cl 21.04-4 of the Planning Scheme. They contended that this clause is not relevant to an application to erect a major promotion sign on land zoned IN1Z. I understand this contention to relate to the tension between the local planning policy in cl 21.04-4, which generally discouraged major promotional signs, and the state-wide provision in cl 52.05-8, which encourages major promotion signs in commercial and industrial locations in a manner that complements or enhances the character of the area.
In this regard, the applicants relied on OSO International, in which the Tribunal granted a permit for a major promotion sign on a comparable site on the corner of Numurkah Road and Shelby Court, Shepparton, in the Commercial 2 zone. Before the Tribunal, they referred to another Tribunal decision, Maple Media Pty Ltd v Monash CC,[22] in which the Tribunal granted a permit for a major promotional sign in a Special Use Zone near the Monash Freeway despite a local policy discouraging signs of that type.
[22][2017] VCAT 1264, [50]–[53].
Consideration
At the time of the Tribunal’s decision, cl 21.04-4 of the Planning Scheme set out local policy guidelines to guide decision-making in relation to permit applications for advertising signs. These guidelines are set out at [28] of the Reasons. The last of these guidelines was plainly relevant to the application before the Tribunal. It said:
Major Promotional signs are discouraged, but if approved are to be confined to Regional & Sub-regional Centres attached to a building wall and should not be more than 3 metres above the ground or be internally or externally illuminated.
In determining the application for review, the Tribunal was obliged to consider the matters specified in s 84B of the Planning and Environment Act 1987 (Vic) (Planning Act), relevantly any matter that the responsible authority was required to take into account in making its decision, and the relevant planning scheme. It would have been an error for the Tribunal not to take into account a local planning policy that specifically discouraged major promotional signs of the kind proposed.
That is not to say that this local policy had the effect of prohibiting major promotional signs, or that a permit would never be granted to display one. The applicants are correct to point out that the decision guidelines in cl 52.05-8 encourage major promotion signs in commercial and industrial locations in a manner that enhances the character of the area. The Planning Act requires that a planning scheme is to be read, so far as practicable, so as to resolve any apparent inconsistency between different provisions of the scheme.[23] If the inconsistency cannot be resolved in that way, a State standard provision (such as cl 52.05-8) prevails over a local provision (such as the former cl 21.04-4).[24]
[23]Planning Act, s 7(4)(a).
[24]Planning Act, s 7(4)(b)(i).
In this case, the Tribunal was able to resolve the apparent tension between local and State provisions concerning major promotion signs by reading the Planning Scheme as directing attention to the characteristics of the proposed sign, the site and the surrounding area. As the Tribunal correctly observed at [32] of the Reasons, each application for a permit to display a sign must be judged on its own merits, and on its own design, site, context and location. That means that the tension between the two provisions may be resolved in different ways in different cases.
In OSO International, the Tribunal considered the policy of discouraging major promotional signs, but held that in the facts and circumstances of that case the policy should not be rigidly applied.[25] The Tribunal went on to find that the nature of the subject site and surrounds made it suitable for the display of a major promotion sign.[26] Maple Media was another case in which the Tribunal resolved the tension between local and state policy in favour of granting a permit for a major promotion sign.[27] However, the outcome of those applications did not dictate the outcome of this one, which concerned a different proposed sign on a different site in a different zone. Notably, in neither of these cases did the Tribunal find it necessary to apply s 7(4)(b)(i) of the Planning Act, and rule that the State standard provision prevailed over the local policy.
[25]OSO International Pty Ltd v Greater Shepparton CC [2016] VCAT 1709, [8]–[10].
[26] OSO International, [13].
[27]See also iOm Pty Ltd v Greater Dandenong CC [2012] VCAT 1857, [8]–[9], [21].
There is no merit in this proposed ground of appeal.
Did the Tribunal fail to have regard to the features of the surrounding areas?
The applicants argued that the Tribunal was obliged to consider the surrounding industrial and commercial area, and not just the specific site, in assessing the merits of the application, and that it had failed to do so. They said that the Tribunal should have considered all of the large freestanding signs along Benalla Road and the Midland Highway, and applied the same test to their application. They referred to a number of photographs tendered at the Tribunal hearing, and submitted that these clearly demonstrated that a number of signs along the Midland Highway were as large as or even larger than the sign they wished to display on their land.
Consideration
At [34] of the Reasons, the Tribunal expressly referred to the examples of large signs in the vicinity referred to by the applicants. The Tribunal acknowledged the size of some of the signs and their proximity to the site. At [35], the Tribunal referred to its own inspection of both the review site and other sites in the surrounding area shown in photographs tendered at the hearing. The Tribunal then explained in detail in the following paragraphs the reasons why it considered the context of those signs to be different from the sign proposed by the applicants. Those reasons included the fact that much of the sign content related to businesses on the land where the signs were located, that the freestanding signs often sat within a landscaped setting with a backdrop of built form, and that all of the examples were on sites zoned either Commercial 1 or Commercial 2.[28]
[28]Reasons, [36]–[39], [41], [45].
It is clear from the Tribunal’s Reasons that it considered the surrounding industrial and commercial area, as well as the characteristics of the specific site on which the applicants wished to place their proposed sign. It was a matter for the Tribunal what weight it gave to that consideration in reaching its ultimate conclusion. The fact that the Tribunal reached a different conclusion from the one urged by the applicants does not give rise to a question of law. This proposed ground of appeal has no real prospect of success.
Did the Tribunal fail to undertake a de novo review of the application?
The applicants submitted that the Tribunal was required by the Planning Act to consider their application de novo, and that it did not properly perform that duty. They said that the Tribunal did not properly investigate all the circumstances that required consideration, including by not referring to OSO International. They further argued that it was wrong of the Tribunal to rely on cl 21.04 of the Planning Scheme and to refer to the Tribunal’s earlier decision refusing a permit for a sign on the site, when its duty was to make a de novo decision on their application.
Consideration
In this case, the Tribunal was exercising review jurisdiction.[29] The nature of this jurisdiction was described by Emerton J in Mond v Perkins Architects Pty Ltd:[30]
The Tribunal does not sit as an appellate tribunal in judgment on the findings and conclusions reached by the original decision-maker. Its function on a review of an administrative decision is not to sit in appeal from the decision, but to re-exercise the function of the original decision-maker. When exercising its review jurisdiction, the Tribunal reviews decisions on the merits. Its task is to ‘stand in the shoes’ of the original decision-maker and make the ‘correct’ or ‘preferable’ decision having regard to the material before it. The Tribunal’s review must take place without any presumption as to the correctness of the decision under review and it must conduct its own independent assessment and determination of the matters necessary to be addressed. While the Tribunal may have to consider the factual findings upon which the decision under review was based in order to decide whether that decision was the correct or preferable one, it must make its own findings of fact and is not bound by the original decision-maker’s findings of fact.
[29]VCAT Act, s 42(1); Planning Act, s 79.
[30][2013] VSC 455, [10] (footnotes omitted). This passage was cited with approval by the Court of Appeal in Hoskin, [113].
In reviewing the Council’s deemed refusal to grant a permit in this case, the Tribunal was required to take into account the matters set out in s 84B of the Planning Act, including the Planning Scheme. As discussed, those matters included the relevant local planning policy in cl 21.04-4 of the Planning Scheme.[31]
[31]See [42]–[46] above.
It is apparent from the Tribunal’s Reasons that it understood the nature of the jurisdiction it was exercising. The Tribunal considered for itself whether a permit should be granted, based on the evidence before it and the submissions of the parties. At [32] of the Reasons, the Tribunal explained why it had taken a neutral rather than negative approach to the application. While it had regard to the local policy of discouraging major promotional signs, it did not take that policy as its starting point, and did not treat it as determinative. The Reasons demonstrate a genuine consideration of and engagement with the planning merits of the proposed sign.
As to the claimed failure by the Tribunal to investigate all of the relevant circumstances of the case, the Tribunal is not bound by the rules of evidence and may inform itself on any matter as it sees fit.[32] It does not follow that the Tribunal is obliged to investigate for itself the merits of an application, beyond the evidence and submissions presented for its consideration by the parties.[33] The Tribunal’s power to inform itself is subject to the rules of natural justice, which require it to give each party a reasonable opportunity to present its case.[34] However, the Tribunal is not required to ensure that a party makes the most of that opportunity, or to fill in any gaps in the party’s case.[35]
[32]VCAT Act, s 98(1).
[33]See, eg, Hoskin, [128]–[143].
[34]VCAT Act, s 98(1)(a). As to what is a ‘reasonable’ opportunity, see Roberts v Harkness (2018) 57 VR 334, [49].
[35]Muto v Secretary to the Department of Transport, Planning and Local Infrastructure [2014] VSC 619, [133].
In short, the Tribunal was not required to investigate the circumstances of the application beyond the cases presented by the applicants and the Council.
Is the Tribunal’s decision inconsistent with OSO International?
The applicants argued that the Tribunal erred by not applying the same test that was applied in OSO International. For the reasons already given,[36] the outcome in OSO International was not determinative of this application, and there was no need for the Tribunal to refer to it. The two decisions are not inconsistent; the outcomes were different because the relevant facts and circumstances – including the zoning – were different.
[36]See [46] above.
Further, I can find no mention of OSO International in the written and oral submissions made by counsel for the applicants to the Tribunal. Even if this argument had some prospect of success, I would not grant leave to appeal to agitate an argument that was not raised below.[37]
[37]See [26(c)] above.
Did the Tribunal misinterpret cl 15.01-1S and cl 52.05 of the Planning Scheme?
The applicants took issue with the Tribunal’s statement, at [40] of the Reasons, that cl 15.01-1S and cl 52.05 required it to be guided by the on-ground features of the site and surrounds. They referred to relevant parts of the Urban Design Guidelines for Victoria, a policy document referenced by cl 15.01-1S. They asserted that their proposed sign met the built form of the surrounding circumstances, as well as the objectives at 6.6.2.b of the Guidelines.
Consideration
In relation to ‘Objects in the Public Realm’, Objective 6.6.2 of the Guidelines is:
To ensure signs contribute to the amenity and local character of an area:
a.Scale advertising signs to be consistent with the surrounding urban context.
TIPLarge signs can impede sightlines and views. Refer to detailed guidance in the Victoria Planning Provisions Clause 52.05 Advertising signs.
b.Consolidate multiple message into a single sign.
c.Provide vandal-proof and graffiti-resistant signs.
The relevant parts of cl 52.05 are set out in full in the Tribunal’s Reasons.[38]
[38]See [14]–[16] above.
The Tribunal’s statement that both cl 15.01-1S and cl 52.05 required it to be guided by the on-ground features of the site and surrounds was unexceptionable and plainly correct. The applicants’ real complaint appears to be that the Tribunal did not assess the site and surrounds in the way that they argued it should. The Tribunal’s conclusion that the proposed sign would be visually imposing on an otherwise modest site was well open to it on the evidence.
This submission did not identify any arguable error of law.
Did the Tribunal properly consider the planning history of the site?
In their further submission dated 10 November 2021, the applicants raised for the first time an argument that the Tribunal had failed to establish and investigate all of the planning permit applications for the site. They listed 18 different Tribunal decisions concerning the site, decided between July 2003 and August 2017, and said that the Tribunal should have paused the hearing to properly consider all of these decisions. They posed the following question:
Did the VCAT Member deny the applicants procedural fairness by not properly considering or understanding the history of 309 Midland Highway site? In effect, by being selective and not taking into account all the previous planning appeals including a Service Station Roadhouse public toilet with signage including a Major Promotional sign the member denied the applicant[s] procedural fairness.
Consideration
The answer to that question is ‘No’. Far from denying the applicants procedural fairness, the Tribunal appropriately identified for consideration, out of the many previous Tribunal decisions about the site, one that concerned a similar application for a permit for a major promotion sign.[39] The Tribunal drew this decision to the attention of the parties in the course of the hearing on 2 October 2018, and gave them an opportunity to consider and make submissions about it. After the lunch adjournment, the solicitor for the Council made some brief submissions about the decision. Counsel for the applicants did not address it, and nor did he submit that the Tribunal should have regard to any of the Tribunal’s other decisions about the site.
[39]D’Agostino v Greater Shepparton CC [2006] VCAT 1988.
While the Tribunal referred to this decision in its Reasons at [52], it was only to note that the views expressed in it were generally consistent with the decision that the Tribunal had reached in this case. The earlier decision did not influence the Tribunal’s reasoning, and was not material to the outcome.
For the reasons already given,[40] the Tribunal was not obliged to investigate the planning history of the site, beyond the matters relied on by the parties. Further, the applicants do not say how any of the earlier decisions concerning the site were relevant to their permit application in this case, or how consideration of them may have affected the Tribunal’s decision.
[40]See [52]–[56] above.
Even if this additional argument had merit — which it does not — I would refuse leave to appeal both because the argument was not raised below, and because the applicants have not demonstrated how the earlier decisions of the Tribunal could have had any bearing on the permit application in this case.
Disposition
The Council did not oppose the short extension of time sought by the applicants, and so I will extend the time for filing their notice of appeal by one day to 23 November 2018.
I do not consider that any of the proposed grounds of appeal, or any of the other arguments raised by the applicants, has a real prospect of success. I will therefore refuse leave to appeal, and dismiss the proceeding.
I will hear from the parties on the question of costs.
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