DRIVE BY DEVELOPMENTS (PERTH) PTY LTD and CITY OF PERTH - [2017] WASAT 75

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: DRIVE BY DEVELOPMENTS (PERTH) PTY LTD and CITY OF PERTH [2017] WASAT 75

MEMBER: MS L EDDY (MEMBER)
MS R MOORE (MEMBER)

HEARD: 6 TO 9 SEPTEMBER 2016

DELIVERED : 24 MAY 2017

FILE NO/S: DR 388 of 2015

BETWEEN: DRIVE BY DEVELOPMENTS (PERTH) PTY LTD
Applicant
AND
CITY OF PERTH
Respondent

Catchwords:

Town planning - Development application - Digital display sign - Heritage precinct - Inconsistency with local planning policy - Turns on own facts

Legislation:

City of Perth City Local Planning Scheme No 2, s 4.10, Sch 4, cl 4, cl 6, cl 11, cl 12, cl 15, cl 43,
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 67
Planning and Development Act 2005 (WA), s 252(1)

Result:

Application dismissed
Decision of respondent to refuse to grant development approval for a proposed digital display advertising sign to be mounted on roof of existing building affirmed

Summary of Tribunal's decision:

An application for development approval to place a digital advertising sign on an existing building on Barrack Street, Perth was refused by the City of Perth. On the application for review of the respondent's decision, the Tribunal focused on the issues of whether the proposed sign was consistent with relevant local planning policies, whether the proposed sign would have any adverse effect in relation to the safety of vehicles and pedestrians, the impact, if any, on the amenity of the locality and the effect, if any, the proposed development would have on the cultural heritage significance of the Barrack Street Conservation area.
On the evidence before it, the Tribunal determined that the proposed development was inconsistent with the respondent's relevant local planning policies. The Tribunal also determined that it was not satisfied that the proposed development would not have any adverse impact in relation to road safety. Further, the Tribunal was satisfied that the proposed development would have an adverse impact on the amenity of the area and on the cultural heritage significance of the Barrack Street Conservation area. In the circumstances, the Tribunal determined that the correct and preferable decision was to refuse the development application.

Category: B

Representation:

Counsel:

Applicant: Mr M Reed
Respondent: Mr H Jackson

Solicitors:

Applicant: Jackson McDonald
Respondent: Castledine Gregory

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Vespoli and City of Stirling [2013] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In July 2015, TPG Town Planning, Urban Design and Heritage applied, on behalf of Drive By Developments (Perth) Pty Ltd (applicant), to the City of Perth (respondent) for development approval to place a digital advertising sign on an existing building at 146152 (Lots 28) Barrack Street, Perth (site). The application was advertised in accordance with the requirements of the City of Perth City Local Planning Scheme No 2 (LPS 2 or Scheme) and one submission was received opposing the application.
It is convenient at this point, to note that LPS 2 uses two distinct numbering systems in relation to the clauses of the Scheme. Each clause is numbered sequentially within each Part of the Scheme, for example, cl 1.1 to cl 1.10 in Pt 1, cl 2.1 to cl 2.11 in Pt 2 of the Scheme, et cetera. Each clause is also given a number that continues sequentially without regard to the Part of the Scheme, for example, cl 1 to cl 64 of the Scheme. In order to avoid confusion, and because the internal references to other clauses within the Scheme use the second numbering system, we will refer to clauses in LPS 2 in these reasons using the second numbering system only.
On 22 September 2015, the respondent's Council resolved to refuse the development application. The applicant was notified of the respondent's decision by letter dated 25 September 2015. On 23 October 2015, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (PD Act) seeking review of the decision to refuse its application for development approval.
Following mediation, the applicant lodged amended plans with the respondent (described as Job No 1622 with Drawings No 1 and No 4 being version F, dated 29 January 2016 and Drawings No 2 and No 3 being version G, dated 17 February 2016). In June 2016, following further mediation, the applicant lodged further amended plans with the respondent (Drawings No 1, No 3 and No 4 being version I, dated 19 June 2016 and Drawing No 2 being version H, dated 8 June 2016). Pursuant to an order made by the Tribunal, the respondent reconsidered the application for development approval as contemplated in the further amended plans. On 19 July 2016, the respondent's Council resolved to refuse the further amended application. It is this final iteration of the application for development approval that the applicant relied on at the final hearing of the matter (proposed development).

Site and locality

The site is located at the southeastern corner of the intersection of Barrack Street and Wellington Street in Perth (Intersection). It has a 19.33 metre (approx) frontage to Barrack Street and a 18.07 metre (approx) frontage to Wellington Street.
Barrack Street is a northsouth running street that generally has two traffic lanes; one in each direction. Close to the Intersection, Barrack Street contains a third turning lane to accommodate right turning vehicles travelling north.
Wellington Street runs east-west and is characterised by two or three traffic lanes in each direction separated by median strips. The median strip to the east of the Intersection contains some street trees. Parallel to Wellington Street is a railway line, which in the part of Wellington Street near the Intersection is substantially below street level.
The site contains a single storey commercial building with a cantilevered pedestrian awning to both street frontages. The building is currently painted a bright blue colour.
The parties agreed, and the Tribunal accepts, that the relevant locality in this case is a roughly rectangular area that includes Barrack Street from the Intersection up to, and including the Town Hall, which is located on the southeastern corner of the intersection of Barrack Street and Hay Street. The locality includes the buildings fronting Barrack Street as well as those fronting the Intersection and the two intersections formed by Barrack Street and each of Murray Street and Hay Street.
Immediately adjacent and to the south of the site (at 138 Barrack Street) is a development known as the 'Adina Apartment Hotel'. That building is a relatively modern multistorey building which incorporates the façade of the original Railway Hotel at its southern end and a modern architectural façade at its northern end. The modern façade is positioned adjacent to the site facing Barrack Street. Opposite the site on the south-western corner of the Intersection is an older commercial building known as the 'Stockade'. The Stockade is a two storey building with a cantilevered pedestrian awning. On the northwestern corner of the Intersection is an area that forms part of the bridge over the railway line. This area contains a landscaped area and staircases leading to the Perth railway station below and a multilevel carpark above. On the northeastern corner of the Intersection there is currently a large third party advertising sign facing into the Intersection.
Adjacent to the site at 379 Wellington Street is an older four storey development known as the 'Grand Hotel'. The Grand Hotel has a large third party advertising billboard sign and an occupier related advertising sign on the side of the building facing the site. Both of these signs form part of the visual backdrop to the site.
The site is located within the Barrack Street Conservation Area, which is contained on the respondent's register of Places of Cultural and Heritage Significance. The site and the Adina Apartment Hotel, although within the Barrack Street Conservation Area, are not heritage properties. There are also another four lots within the Barrack Street Conservation Area that contain developments that are not heritage properties, including the lots on the northwest and southeast corners of the intersection between Barrack Street and Murray Street.

Applicant’s proposed development

The proposed development is a digital display advertising sign approximately 20 metres in length and 3.35 metres in height. The sign is to be mounted on a support structure located on the roof of the existing building on the site. The sign is curved so as to extend along both the Wellington Street and Barrack Street facing edges of the roof of the existing building.
The details of that support structure are not specified. The proposed development also incorporates a mesh box behind the digital screen. It is proposed that the air-conditioning units, currently located on top of the awning of the existing building, would be relocated to inside the mesh box behind the advertising screen.
Around the digital screen it is proposed to construct a façade incorporating apparent extensions of the piers on the existing building. The façade is intended to create the appearance that the building is a two storey building with the digital sign fixed to/mounted on the wall of the second storey. The existing building and the façade are proposed to be painted in a neutral colour scheme.
The applicant seeks temporary development approval for a period of 10 years.

Planning Framework

Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provides a list of matters that, to the extent relevant, the decisionmaker must have due regard to when determining a development application. This provision applies in place of cl 43 of LPS 2: Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [36] [47].
Relevant to this application, cl 67 of Sch 2 of the LPS Regulations requires the Tribunal to have due regard to:
…
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(g)any local planning policy for the Scheme area;
…
(k)the built heritage conservation of any place that is of cultural significance;
(l)the effect of the proposal on the cultural heritage significance of the area in which the development is located;
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
…
(ii)the character of the locality;
(iii)social impacts of the development;
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(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(w)the history of the site where the development is to be located;
…
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.

Scheme provisions

The objectives of LPS 2 are listed at cl 6 of the Scheme, and relevantly include:
…
(3)The general objectives of this Scheme are
…
(c)to protect and enhance the health, safety and general welfare of the local government's inhabitants and the social, physical and cultural environment of the local government;
(d)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which
…
(ii) recognises the individual character and needs of localities within the Scheme area;
…
(e)to promote the development of a sense of local community and recognise the right of the community to participate in the evolution of localities;
…
(h)to promote and safeguard the cultural heritage of the local government by
(i)identifying, conserving and enhancing those places which are of significance to Perth's cultural heritage;
(ii)encouraging development that is in harmony with the cultural heritage value of an area; and
(iii)promoting public awareness of cultural heritage generally;
(i)to ensure that all development
(i)is of a high architectural design quality
(ii)delivers a high level of amenity within the public realm by
(a)being of a scale along the street alignment which is conducive to creating a comfortable pedestrian environment[.]
Pursuant to cl 11 of LPS 2, the Scheme area is divided into precincts and for each precinct there is a Precinct Plan. The site is located within Precinct P5 'Cityplace'.
Although the applicant did not apply for, and the respondent did not consider planning approval for, a change of use of the site, the question of whether use of the site to house a third party advertising sign involves a change of use of the site was raised at the hearing.
The classification (or zoning) of land within the Scheme is shown on the relevant Precinct Plan: cl 12 of LPS 2. Land is classified as either Metropolitan Region Scheme Reserve, City of Perth Scheme Reserve, one of six specified scheme use areas (City Centre, Residential area, Residential/Commercial area, Office/Residential area, Town Centre, Commercial area), or a normalised redevelopment area. All non-reserved land within Precinct 5 is classified as 'City Centre Scheme Use Area'.
At cl 15 of LPS 2 it is stated that a use group is 'a described use' or 'a group of described uses having generally similar functional characteristics, within the use group categories set out in Schedule 2'. This clause also identifies a number of use group categories and states that where a particular use is not referred to in any use group and does not come within the general terms of any use group it is to be taken to be an unlisted use.
'Advertising' is not identified as being within any use group category in cl 15 of LPS 2. Schedule 4 of LPS 2 contains the Scheme's definitions and, where applicable, the relevant use group in relation to the term is identified. The term 'advertisement' is defined in Sch 4 of LPS 2, but is not identified as belonging to any use group. We note that the definition of 'advertisement' contained in LPS 2 has been replaced by the slightly different definition of that term contained in the deemed provisions in the LPS Regulations, however nothing turns on that in these proceedings. Under the column for use group, in the row containing the term 'advertisement' the words 'not applicable' are stated.
Ms Margaret Smith, the Manager Development Approvals for the respondent, gave evidence to the effect that she had taken the view that, because of the provisions outlined above, advertising was not considered as a use of land under LPS 2. Thus, it had been the respondent's approach to determine development applications in relation to proposals concerning advertising on the basis of the works involved, rather than on the basis of any use of land.
We do not agree with this interpretation of the effect of the provisions of LPS 2. We are satisfied that this proposed development does involve a separate and distinct use of the site that requires development approval in relation to that use as well as in relation to the works involved. However, in this case, as the use is an unlisted use, and because the application was advertised as is required in relation to an unlisted use, determination of the use aspect of the proposed development is capable of approval and does not require consideration of any different matter to those required to be considered in relation to the works aspect of the proposal, nothing turns on this.

Local planning policies

The respondent has a Planning Policy Manual that contains its local planning policies.

Signs Policy

Section 4.6 of the Planning Policy Manual contains the respondent's local planning policy in relation to signs, including advertising signs (Signs Policy).
At the time of the hearing, the parties and the Tribunal were aware that the respondent had developed and advertised for comment, a draft amended local planning policy in relation to signs (draft amended Signs Policy). The draft amended Signs Policy was before the Tribunal in addition to the Signs Policy as it stood at that time (original Signs Policy), and the parties made submissions as to the weight that should be placed on relevant provisions of the draft amended Signs Policy. However, prior to the Tribunal publishing its decision in relation to these proceedings, on 13 December 2016, the respondent resolved to adopt a version of the draft amended Signs Policy (amended Signs Policy). In light of this change to a relevant local planning policy, the Tribunal asked the parties whether they wished to submit any further written submissions or to have any further opportunity to be heard in relation to the amended Signs Policy. Both parties agreed that they wished to have the opportunity to file further written submissions only. The applicant lodged its further submissions regarding the amended Signs Policy on 8 February 2017, and the respondent lodged its further submissions on 22 February 2017.
Given that the evidence of the witnesses at the hearing largely focused on the original Signs Policy, it is appropriate to outline the relevant provisions of that Policy, and where different, the version of each relevant provision contained in the amended Signs Policy.
The objectives of the original Signs Policy are stated in Pt 3, relevantly include:
•To prevent visual clutter caused by the unnecessary proliferation of signs.
•To encourage well designed and positioned signs that are appropriate to their location, and which enhance the visual quality, amenity and safety of the City.
•To protect significant characteristics of buildings, streetscapes, vistas and the city skyline against inappropriate signage.
•To ensure that signs are designed and located to avoid danger or unnecessary distraction to motorists or pedestrians[.]
The objectives of the amended Signs Policy are differently framed, and they relevantly include, in cl 4.0:
•To ensure that signs within the city:
•achieve a high level of design quality and are comprised of durable materials;
•are located and designed in a coordinated manner across a site in a way that responds to and complements the architecture of the building to which they are attached, and where applicable the cultural heritage significance of that building or an adjacent building;
•respect and make a positive contribution to the streetscape, the locality, and where applicable the city skyline;
•are clear and efficient in communicating to the public and do not lead to visual clutter on and around buildings and within streetscapes and localities; and
•do not adversely affect the amenity of occupants or users of buildings and public spaces or the safety of road users and the public generally.
…

Relevant definitions contained in Pt 5 of the original Signs Policy are as follows:
Above Roof or Sky Sign means an advertising sign that protrudes above the normal roof line or building parapet and is not a roof sign.
Animated or 'New Technology' Signs means any sign or its contents that moves, and includes flashing or 'chasing' lights, as well as video signs, and signs which are defined in the outdoor advertising industry as 'trivisions', 'variable message', 'changing message' and 'fibre optic' signs.
Heritage Building or Place means a building or place:
•entered in the Register of Heritage Places under the Heritage of Western Australia Act (administered by the Heritage Council of WA); or
•subject to Division 2 of City Planning Scheme No 2, relating to places of cultural heritage significance; or
•listed in the City of Perth Municipal Heritage Inventory.
Roof Sign means a sign fixed to the top of the fascia or wall of a building or a machinery or plant room, and designed as an integral part of the design of the building. A roof sign also includes a sign fixed to or painted upon the roof of a building.
Third Party Advertising or General Advertising is a sign:
•displaying the name, logo, or symbol of a company or other organisation that does not own or substantially occupy the site or building on which the advertisement is located; or
•for a product or service not provided on the site on which the advertisement is located; or
•for a product or service that does not form part of the signage displaying the name, logo or symbol; of a company or other organisation that owns or substantially occupy the site or building on which the advertisement is located; or
•for an activity or event not occurring on the site on which the advertisement is located[.]
In the amended Signs Policy, the definition of 'roof sign' has been amended to state:
… [A] sign fixed to the wall of a roof top plant room setback from the main elevation of the building or to an architectural feature at the top of a building and it may extend no more than 200 mm above the roof top plant room or architectural feature that it is fixed to.
The term 'sky sign' is now defined as:
… [A] sign fixed to the roof, roof top plant room, parapet, wall or architectural feature at the top of a building and that extends more than 200 mm above the height of the roof, roof top plant room, parapet, wall or architectural feature that it is fixed to.
In Pt 6 of the original Signs Policy there are the following relevant general policy statements:
•Signs erected on or adjacent to a building are to be for the purpose of the identification/naming of the building, or the major activities carried on within it only. Signs for general advertising purposes will be considered only where it can be demonstrated that provision of such signs will enhance and not adversely affect the visual quality, amenity and safety of the City.
…
•Signs erected on or adjacent to buildings should be an integral part of the design and scale of the building and have regard to the materials, finishes, colours and fenestration of the building, ensuring that architectural features of the building are not obscured. This consideration is particularly important for signs on buildings of heritage and cultural significance.
…
•Signs are to be located and designed so as not to cause a hazardous distraction to motorists, pedestrians or other road users.
•Signs should be compatible with the style, scale and character of the surrounding streetscape, and the predominant uses within the locality. Consideration should be given to the number and type of existing signs in the locality so as to avoid visual clutter[.]
A similar principle to the first point above, that generally signs should be for the purposes of the identification or naming of the building, or activities carried on within the building, remains in cl 5.0 of the amended Signs Policy as a general principle. In addition, the following relevant principles are identified
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c)Signs should be compatible in scale and integrated with the architectural design of the building on which they are erected or adjacent to, having regard to the form, materials, finishes, colours and fenestration of the building/s. Architectural features of a building should not be obscured and daylight into and reasonable vision into and out of buildings should be maintained.
d)Signs should not obstruct important view corridors or dominate the skyline.
e)Signs on or adjacent to a place on the Heritage List or within a Heritage area shall be designed and located to respect the cultural heritage significance of the place or area.
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h)Third party advertising sign content shall only be permitted in limited locations within the city and where it is demonstrated that it will enhance and not adversely affect the visual quality, amenity, vibrancy and safety within the city.
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j)signs that will present a hazard or obstruction on the footpath, block road users' views or are not well secured will not be approved. Signs with messages, illumination or noise that is likely to cause a distraction to road users or discomfort or loss of amenity generally for occupants of buildings or the public will also not be approved.
Part 8, of the original Signs Policy sets out signs that are identified as 'exempt' and therefore not required to have development approval. It was not in dispute that the proposed development is not an 'exempt' sign for the purposes of the Signs Policy. However, Pt 8 also contains the following statement:
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Signs that are not exempt from the requirement for planning approval will be assessed based on the following performance criteria.
Response to Location
A sign should be appropriate to its setting. For example, a sign which may be suited to the entertainment area of Northbridge would probably not be appropriate in the central business area of St Georges Terrace. A new advertising sign should aim to respond to the character of the street, and the prevailing building style.
Contribution to Local Character
A new sign should make a positive contribution to its setting. Signs that block important views, are detrimental to their neighbour's amenity or are out of character with the streetscape, ultimately reduce the quality of the street as a whole, and as such have the potential to reduce the commercial viability of an area.
Enhancement of the desired future environmental character of an area should be the primary consideration for judging the appropriateness of a new sign proposal.
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Safety
A sign should in no way endanger the safety of the public. Signs that present a hazard or obstruction on the footpath, block motorists' views, block views of traffic information signage or traffic lights, or are not well secured, will not gain approval. Signs that are highly illuminated so as to cause discomfort to approaching motorists or to pedestrians are considered hazardous, and will not be supported.
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Signage to be Avoided
•Visual 'Noise': Visual noise results when too many signs compete for the viewer's attention. Adhoc additions over the years, varieties of different styles and colours on one site, too much text, and building addresses buried under a mass of information combine to form a 'mess of messages' which potential customers will not be able to read.
•Incorrect Scale: A sign should be chosen with the target audience in mind. Is it motorists or pedestrians? A sign should be tailored in scale to address the needs of these groups. Pedestrians are pleased with detail and interest. Motorists are grateful for clear address numbers and succinct information. Building scale should always be taken into consideration when designing and locating a sign a large sign on a small building looks out of scale and poorly designed, and reflects poorly on the building occupants.
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•'Destructive' Signage: Signs which require the destruction of important elements of the building fabric especially in heritage areas reduce the value of the building and destroy future opportunities for the life of the building. Care should be taken to fit signs into the 'pattern' of the building and to use the building as a frame for new signage[.]
In relation to safety, the amended Signs Policy, at cl 6.3 relevantly provides:
To ensure the safety of the public, signs shall:
…
e)not cause a potential distraction to road users or obscure road users' views of vehicles, pedestrians or potentially hazardous road features;
f)not cause confusion with, or reduce the effectiveness of traffic control devices[.]
In relation to sign content, the amended Signs Policy, at cl 6.6 relevantly provides:
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c)Third Party Advertising or OnPremises Advertising Content
i)Third party advertising or on-premises advertising content shall only be considered for development approval on:
A)a sign facing or in a public space within the Entertainment Area, the Retail Core Area, a Town Centre Area or The Terraces Area (as identified in Figure 2) where the sign is oriented for viewing within the space and not from adjacent streets;
B)a wall sign on a building within the Entertainment Area, Retail Core Area or Town Centre Area (as identified in Figure 2) where the subject building has a valid development approval granted prior to June 2014 and the wall sign is proposed to be installed upon a large section of blank wall that would be enhanced by its addition. The wall sign should comply with the provisions under clause 7.12(d), but not 7.12(b);
C)a street furniture sign where it is part of a coordinated approach to the design and installation of street furniture in the locality and where the number of street furniture signs are limited; it will make a positive contribution to the amenity, safety and character of the street; and is integral with and subordinate to the design and function of the street furniture with a maximum sign face area of <2m²;
D)a hoarding sign that is not located within a Residential Area or Civic and Parks Area (as identified in Figure 2) and complies with clause 7.3(d); and/or
E)a window sign in the case of onpremises advertising content only.
ii)Third party advertising or onpremises advertising content shall only be considered for development approval on a sign facing or in a public space in accordance with (i)(A) above where the local government is satisfied that it:
A)is compatible with the desired character of the public space;
B)will enhance the visual quality of the public space, and
C)will increase the use and vibrancy of the public space, particularly at night.
iii)Third party advertising or onpremises advertising content on a sign will not be permitted on a place on the Heritage List or within a Heritage Area except in accordance with clause 8.2(m).
iv)Third party advertising content shall not undermine the role of the city as the primary retail, commercial and cultural centre of the metropolitan area and/or state.
v)A signage Management Plan shall be submitted as part of a development application for a sign with third party advertising content.
In relation to animated and variable content signs, cl 6.8 of the amended Signs Policy relevantly provides:
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c)Variable content on a large sign (>2m² sign face) shall only be considered for development approval:
i)facing or in a public space within the Entertainment Area, the Retail Core Area or The Terraces Area (as identified in Figure 2) and where:
A)the viewing area is designed and intended for pedestrians to linger for an extended period of time; and
B)the sign is oriented for viewing within the public space and not from adjacent streets and can only be viewed by road users if:
1)it has content that is completely static without any motion, animation or special effects for the duration of its display;
2)it has a specified duration of display and a transition time between display that comply with standards specified by the State Government transport authority or another authority considered appropriate by the local government;
3)each display comprises no more than 20% of its area as text and the text is large scale so that it can be easily and quickly read by road users; and
4)it does not include any content that could be perceived to be providing public safety instructions to road users.
ii)where the large sign is a roof sign or wall sign at the top of a building which is greater than 29 metres in height and is not within a Landscaped Mixed Use Area, Residential Area or Civic and Parks Area.
d)Animated or variable content on a large sign facing or in a public space shall only be considered for development approval where the local government is satisfied that it:
i)is compatible with the desired character of the public space;
ii)will enhance the visual quality of the public space; and
iii)will make a positive contribution to the public space and its activation, particularly at night.
e)Animated or variable content on a large sign at the top of a building shall only be considered for development approval if the local government is satisfied that it will:
i)add interest and vibrancy to the city’s night skyline; and
ii)not adversely affect the amenity of occupants of nearby buildings or impact on the safety of road users.
f)Animated or variable content on a sign shall not be permitted on or adjacent to a place on the Heritage List or with in a Heritage Area except where in accordance with clause 8.2(o) and (p)[.]
Part 9 of the original Signs Policy then provides what are described as 'guidelines' for specific sign types, which relevantly include:
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9.1 Above Roof or Sky Sign
Above roof or sky signs are not permitted anywhere within the City of Perth.
9.2 Animated or 'New Technology' Signs
(a)The content of an Animated or 'New Technology' sign must also receive the approval of Council.
(b)Animated or 'New Technology' signs are only permitted within the 'City Centre' Scheme Use Area of Precinct 5 (Citiplace), and the 'City Centre' Scheme Use Area of Precinct 1 (Northbridge).
(c)An Animated or 'New Technology' sign must be compatible with the character of the streetscape within which it is proposed. Such signs will generally not be permitted within a designated heritage area, or on or adjacent to a heritage place.
(d)An Animated or 'New Technology' sign must be designed as an integral part of a building or structure, but will not generally be approved where it takes the form of a pylon sign.
(e)The most appropriate locations for Animated or 'New Technology' signs include plazas and public spaces where their contents can be viewed by gathered or passing pedestrians, but should not be able to be viewed by passing motorists, for whom may be a distraction and therefore a safety hazard. An Animated or 'New Technology' sign may be constructed and located as to create a landmark in its immediate locality.
(f)The contents of an Animated or 'New Technology' sign may move but not flash or pulsate in a manner likely to cause a hazard or nuisance to motorists or the occupants of neighbouring properties.
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9.8 Roof Signs
(a)A roof sign must not project above the uppermost part of the building to which it is attached.
(b)A roof sign may be illuminated, and its contents may move, but it cannot contain flashing lights.
(c)High level illuminated roof signs are encouraged facing the Swan River on buildings within Precinct P13 (Adelaide) and Precinct P6 (St Georges) (see Section 10).
(d)An illuminated roof sign will not be permitted if it is likely to adversely affect the amenity of adjoining, overlooking residents due to excessive glare.
(e)Roof signs should only be permitted where it can be demonstrated that having regard to the character of the area in which they are to be situated, they would not adversely affect its amenities or those of other areas.
(f)A roof sign must be compatible with the building upon which it is attached in terms of its size and design.
(g)Roof signs are not permitted on heritage buildings.
(h)The content of roof signs requires approval by Council.
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9.11 Third Party Advertising or General Advertising
Third party or general advertising will only be permitted where, having regard to the character of the area in which the sign is to be situated, the Council is satisfied that the visual quality, amenity and safety of the area will be enhanced, or at the very least, not diminished.
Part 7 of the amended Signs Policy contains provisions for specific sign types. Relevantly to this application, it states:
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7.8 Roof Signs
a)A roof sign must achieve a high degree of integration and compatibility with the form of the building that it is attached to. A roof sign should appear as if it is part of the original building, or otherwise match or complement its architecture, and not appear as an afterthought.
b)A roof sign should have a maximum vertical dimension equal to one tenth of the building’s height, but not more than the combined height of two typical floors of the building.
c)Only one roof sign or one wall sign at the top of the building shall be permitted per building elevation, except where the local government is satisfied that a further sign would be compatible with the design and scale of the building, would not lead to visual clutter and would make a positive contribution to the city skyline.
d)A roof sign shall not display third party advertising or on-premises advertising content.
e)The illumination of roof signs on buildings will be encouraged in locations where it will add interest and vibrancy to the city's night skyline and will not adversely affect the amenity of occupants of nearby buildings.
7.9 Sky Signs
a)Sky signs are not permitted.
Finally, in the Amended Signs Policy, Part 8 relates to signs on places on the heritage list or within heritage areas. In particular, cl 8.2 contains the following relevant provisions:
…
c)Signs shall not visually dominate or detract from the architectural characteristics of a place on the Heritage List or a Heritage Area. Matters to be considered in this regard include the location, scale, size, materials, design and the cumulative effects of signage.
d)Signs shall not visually obscure architectural features of a building or disrupt the design, proportioning or fenestration of a building façade, including the parapet and roof.
e)Roof signs shall not be permitted on a place on the Heritage List or within a Heritage Area.
…
m)Third party advertising or on-premises advertising content on a sign shall not be permitted on a place on the Heritage List or within a Heritage Area except where:
i)it is on a hoarding sign in accordance with clause 7.3(d);
ii)in the case of on-premises advertising content it is on a window sign; or
iii)it is reconstructed signage with a clearly established historical precedent that contributes to the cultural heritage significance of the place or Area.
n)Signs should generally only be illuminated externally or utilise a 'halo' method of illumination (i.e. illumination from behind to form a 'halo' of light around silhouetted letters or symbols). Internal illumination of under awning signs where the illumination only applies to the lettering or logo may be appropriate where it does not visually detract from the place on the Heritage List or the Heritage Area. Neon and flashing signs are not permitted unless they are an accepted component of the cultural heritage significance of the place on the Heritage List or the Heritage Area.
o)Animated or variable content on a sign shall not be permitted on a place on the Heritage List or with in a Heritage Area, with the possible exception of a window sign where it is a discrete, small sign (≤2m2 sign face) and it will not detract from the cultural heritage significance of the place or the Heritage Area.
p)Animated or variable content on a sign adjacent to a place on the Heritage List and outside a Heritage Area may only be permitted where it will not detract from the cultural heritage significance of the adjacent place.

Heritage Policy

At s 4.10 of the Planning Policy Manual is the respondent's Heritage Policy. The aims of the Heritage Policy are described as follows.
This Policy is designed to assist and guide property owners and the City of Perth in the management of identified heritage places and adopted Conservation Areas, in order to retain the character and values that make them special.
The aims of this Policy are:
…
•To ensure that future development, including conservation or adaptation of existing buildings and construction of new buildings, respects and enhances the identified heritage values and character of places of cultural significance.
•To enable Conservation Areas to develop as distinctive, flourishing precincts that contribute to the diversity of the City of Perth.
In Part 3 of the Heritage Policy, it is stated that the Heritage Policy should be read in conjunction with the Scheme and other associated policies, with particular regard to, amongst other things, the Signs Policy.
In relation to new development, s 6.4 of the Heritage Policy provides:
… [A]ny new development adjacent to a heritage place, whether a Conservation Area or an individual listing, should respect its setting and curtilage.
•New buildings in a Conservation Area should be of similar scale, proportions, setback and height to the heritage buildings in the locality.
•New buildings should be of contemporary design and not copies of existing significant buildings.
•New design should respect existing heritage buildings and respond to their articulation and detail in areas such as dominant parapet lines, roof line, window configuration, door openings and awnings.
In relation to the Barrack Street Conservation Area (within which the site is located), the respondent's Register of Places of Cultural Heritage Significance states that:
…
Nonheritage buildings are not considered to be contributory to the heritage significance of the Area but must still comply with any local planning policy in regard to redevelopment in whole or part, as new works have the capacity to disrupt and detract from the Conservation Area if they are not managed appropriately[.]

Issues

The issue to be determined in this matter is whether or not development approval should be granted to the applicant in relation to the proposed development, having due regard to those matters in cl 67 of the LPS regulations that are relevant. At the hearing, the parties focused in particular on the following aspects of that issue:
1)Whether the proposed development is compliant/consistent with the respondent's local planning policies;
2)Whether the proposed development would have any adverse effect in relation to the safety of vehicles and pedestrians within the locality;
3)The impact, if any, on the amenity of the locality; and
4)The effect, if any, the proposed development would have on the cultural heritage significance of the Barrack Street Heritage area.

Consistency with Local Planning Policies

Type of sign

Roof sign or above roof/sky sign

The respondent submitted that the proposed development involves an 'above roof sign' within the meaning of the original Signs Policy. As such, the proposed development is not consistent with the original Signs Policy because such signs are 'not permitted' under that Policy.
The respondent submits that the proposed development 'protrudes above the normal roofline or building parapet' because the advertising sign is proposed to be located approximately 1 metre above the top of the currently existing parapet. In addition, the respondent submits that the proposed development is not a 'roof sign' within the meaning of the original Signs Policy for the following reasons.
Firstly, the proposed development will project above the uppermost part of the building to which it is attached. That is because the frame façade proposed to be built around the advertising sign should not be considered to be part of the building to which the sign is attached. Secondly, the sign will not be fixed to the top of the fascia or wall of a building or a plant room because, even if the mesh box is a plant room, which the respondent disputes, the sign is not fixed to the mesh box but rather the grey mesh box is fixed to the sign. That is, the sign does not gain any structural support from the mesh box; it has its own independent structural support. Thirdly, the proposed development is not a 'roof sign' because it cannot properly be said that the sign has been designed as an integral part of the design of the building.
The applicant submits that the proposed development is not an 'above roof sign' because the sign is to be integrated with the existing building. The applicant points to the fact that the advertising sign is proposed to be surrounded by a façade that is designed to give the appearance of another story to the existing building. This proposed design means that there is no apparent gap between the bottom of the sign and the apparent roof of the building, which, the applicant submits, is an inherent part of the definition of an 'above roof sign'.
In addition, the applicant submits that the proposed development is consistent with other developments that the respondent has accepted to be 'roof signs', in that it has a mesh structure extending behind the sign that creates a box within which the air-conditioning units that serve the building would be relocated. The mesh box will therefore act as a plant room on the roof of the building.
In support of its position, the applicant relied on the evidence of Mr Antony EdnieBrown, an architect of considerable experience, having practiced since approximately 1963. The respondent called Mr Craig Smith, an architect of some 42 years' experience, currently employed as the City Architect by the respondent.
Mr EdnieBrown relevantly described the sign as being supported at the rear with a support structure and plant servicing components visually screened with grey screening mesh material (Exhibit 21, at paragraph 32). Mr EdnieBrown described the placement of the sign, its support structure and the other elements as having the resulting effect of visually integrating the sign into a two storey façade rather than being seen as an isolated element above the existing single storey building.
In Mr Smith's opinion, the proposed development does not fit within the definition of 'roof sign' contained in the respondent's original Signs Policy. Mr Smith asserted that the proposed sign will be placed well above the existing roof. The fact that it may appear to be incorporated into the wall of the building because of a created façade rather than any actual extension of the building, does not alter the position in Mr Smith's opinion. Mr Smith was also of the view that the proposed development did not create a new plant room on the existing roof, to which the sign would be attached (if such an arrangement was created by the proposed development then Mr Smith's view that the sign was an 'above roof' sign would be different). Mr Smith asserted that the supposed plant room attaches to, and would gain support from, the sign support structure, rather than vice versa.
The Tribunal is satisfied that the proposed development does involve a sign that is technically within the definition of an 'above roof' or 'sky sign' under the original Signs Policy. However, the Tribunal was informed that the prohibition against sky signs is aimed at preventing what was described as 'skylining' of signs. That is, rendering a sign prominently visible against the backdrop of the sky above the city. We are satisfied that the proposed development involves a sign that does not have this effect at all. Therefore, although the Tribunal is satisfied that the sign aspect of the proposed development comes within the definition of an 'above roof' or 'sky sign', it is not inconsistent with the objectives of the original Signs Policy on this basis. Therefore, because of the design of this particular proposed development, if there was no other issue with the proposal, we would consider that there may be a good reason to depart from the specific prohibition of sky signs in the original Signs Policy.
There is no dispute between the parties that the sign component of the proposed development is a 'roof sign' under the amended Signs Policy. Under the amended Signs Policy there is a requirement that such a sign should have a maximum vertical dimension equal to one tenth of the building's height and must not display third party advertising content. It is not disputed by the applicant that the proposed development is not consistent with either of these requirements of the amended Signs Policy. However, the applicant submits that limited weight should be given to this.
The applicant submitted that the amended Signs Policy was adopted in substance as a response to the proposed development in order to prevent it from being given planning approval (citing Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity), at [35] and Vespoli and City of Stirling [2013] WASAT 161, at [44]). In Ridgecity, there was direct evidence that the relevant Proposed Development was the catalyst for the policy in question being developed: Ridgecity at [34]. The Tribunal did comment that 'the Tribunal would generally give little weight to a policy which is in substance responsive to a particular pending development application'. However, it also went on to say, in relation to the particular policy under consideration that 'although the subject development application was the catalyst for the formulation of the Policy, the Policy in fact applies to the whole of the [relevant area] as well as an area to its north … [t]he Policy does not in fact contemplate the proposed form of development on the site'.
In this case, there is no evidence to suggest that the proposed development was the catalyst for the amended Signs Policy and the respondent's planning officer, Ms Smith, was not crossexamined on this issue. The Tribunal is not satisfied that there is any evidentiary basis to support a conclusion in this case that the amended Signs Policy was in substance a response to this particular pending development application.
In addition, although the amended Signs Policy does include provisions that apply to the proposed development, the amended Signs Policy applies to the whole of the local government area and to all types of signs, and the differences between the amended Signs Policy and the original Signs Policy are not limited in application to the proposed development. We are not satisfied that the known aspects of the timing of the advertising and adoption of the amended Signs Policy (which does not include when the draft amended Signs Policy was first developed), and the fact that it does contain, amongst other things, provisions that are applicable to the proposed development, is any sufficient basis to find that the amended Signs Policy is in substance a response to the proposed development and on that basis should be given little weight.
The applicant also submitted that the amended Signs Policy is not consistent with orderly and proper planning because it seeks to remove discretion by imposing a number of blanket prohibitions. This submission is misconceived as it fails to have regard to the proper approach that a decisionmaker is required to take toward policy provisions.
A decisionmaker will make an administrative error if it inflexibly applies policy without considering, and taking into account, the particular facts and circumstances of the proposal in question. The decisionmaker is required to consider whether or not the application should be approved, despite any failure to comply with, or be consistent with, a provision of a policy: Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] - [26], referring to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68, referred to with approval in Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196, at [37].
In addition, the weight to be given to the consistency or otherwise of a proposal with any particular policy provision, and/or the objectives of the policy, will depend on a number of factors as summarised in Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119, at [115].
The Tribunal is satisfied that the amended Signs Policy is a recent policy that is of a public nature that was subject to advertising with the opportunity for members of the public to make submissions in relation to it, before it was adopted. The Tribunal is satisfied that the amended Signs Policy is, on its face, based on sound town planning principles. The amended Signs Policy is consistent with, and shows, to a degree, a firming up of, the respondent's existing policy position in relation to advertising signs as contained in the original Signs Policy.
The applicant also submitted that the original Signs Policy should not be given significant weight because there was evidence that the respondent had previously inconsistently applied that Policy. To the extent that the amended Signs Policy retains similar provisions to the original Signs Policy, it might be arguable that, if there had been inconsistent application by the respondent of those provisions, then those aspects of the amended Signs Policy should be given limited weight. It is not necessary to resolve whether or not such an argument can be made because, on the evidence before us, we are not satisfied that there is any sufficient basis to find that the respondent has disregarded, or inconsistently applied, the original Signs Policy. The minutes of the relevant Committee Meetings were in evidence in Exhibit 6 and these clearly show that the respondent's Council was fully advised in relation to how each of the various proposals did, or did not, comply with the original Signs Policy. The Council was provided with an opinion from an internal planning officer as to whether or not the proposal should be approved, despite any failure to comply with the Policy, based on the particular merits of the proposal. It seems to us that this is precisely the approach the respondent was required to take in applying the original Signs Policy.
Weighing these things up, the Tribunal is satisfied that, at least at this point in time, the amended Signs Policy should be given significant weight. That is, the amended Signs Policy is a public document based on sound town planning principles that shows an intention on the respondent's part to firm up its position in relation to when and where advertising signs located within Perth should be approved. To the extent that it is relevant to the consideration of the weight that should be given to the amended Signs Policy, we are not satisfied there is any basis to conclude that the respondent has inconsistently applied the original Signs Policy.

Third party advertising sign

There is no dispute between the parties, nor could there be, that the proposed development contemplates what both the original Signs Policy and the amended Signs Policy describe as a third party advertising.
In the original Signs Policy, one of the general principles, as well as cl 9.11 in relation to third party advertising signs in particular, indicate that third party advertising signs will only be considered where they 'enhance and not adversely affect visual quality, amenity and safety' or 'at the very least do not diminish' those things.
In the amended Signs Policy, the relevant general principle is similar, although it more expressly states that third party advertising signs will only be permitted in limited locations. There remains a requirement that it must be demonstrated that the sign will 'enhance and not adversely affect the visual quality, amenity, vibrancy and safety within the city'.
The specific provisions in relation to third party advertising signs in cl 6.6(c) of the amended Signs Policy are more detailed than those in the original Policy. There is a requirement that such signs be facing, or in, a public space (and be oriented for viewing within the space and not from adjacent streets) and also a new prohibition that such signs will not be permitted within a Heritage Area except in accordance with the provisions of cl 8.2(m) of the amended Signs Policy. As indicated above, there is also a prohibition on third party advertising in roof signs in cl 7.8 of the amended Signs Policy.
The Tribunal finds that the proposed development does not comply with these provisions of the amended Signs Policy.

Scale

As identified above, both the original Signs Policy and the amended Signs Policy identify a need for signs to have an appropriate scale as compared to an existing building. The original Signs Policy identifies signs that are out of scale with the existing building as something to be avoided. The amended Signs Policy has increased detail about the desirable scale of signs (with roof signs suggested to being restricted to a maximum vertical dimension of one tenth of the building height) and includes, at Appendix 3, the statement that 'in most cases, appropriate dimensions are achieved by restricting signs to within panels (which are identified by drawing horizontal and vertical grid lines on the building). This ensures that the architectural character of the building remains dominant.'
Mr EdnieBrown and Mr Smith agreed that the sign aspect of the proposed development was not out of scale when compared to the height and scale of the neighbouring Adina Apartments to the south and the Grand Hotel to the east. However, they disagreed about the scale of the sign in comparison to the existing building and in relation to the Heritage Precinct as a whole.
Mr Smith was of the view that the sign was not compatible with the scale and character of the Heritage Precinct because the projection of the sign (as viewed from the north looking south down Barrack Street) is intrusive to the heritage value of the precinct and has no regard to the style, scale or character of the remaining heritage buildings in the precinct. He was also of the view that the sign is totally out of scale with the existing building.
Mr EdnieBrown focused on the fact that, in his view, the sign, being incorporated into what would give the appearance of a second storey to the existing building, would improve the scale of the existing building by decreasing the disparity between the height and scale of the neighbouring buildings and this building. When pressed, during oral evidence Mr EdnieBrown stated that in his opinion, the sign would not be disproportionate to the scale of the existing building because on the elevation drawings, it was apparent that the distance from the ground to the top of the existing parapet wall is comparable to the distance to the top of the proposed extended parapet wall behind the sign. This meant, in his opinion that the sign was of an appropriate scale as it has a similar proportion to the existing building.
The Tribunal was not persuaded by Mr EdnieBrown's opinion. To suggest that a third party advertising sign, of a height nearly equal to the entire height of the existing building, is not out of scale as compared to that existing building is, in the Tribunal's view, nonsensical.
The Tribunal is satisfied that the proposed sign is out of proportion with the scale of, and dominates, the existing building. The size of the proposed development, particularly its height, is such that it will dominate the single storey existing building.

Location of sign (Heritage Precinct)

The objectives and relevant provisions of both the original Signs Policy and the amended Signs Policy identify a need to protect significant characteristics of streetscapes and vistas against inappropriate signage and to ensure signs are compatible with the heritage significance of a heritage place. The Heritage Policy also specifically requires consideration of the impact of new development on the cultural heritage values of a Heritage Precinct.

The statement of significance for the Barrack Street Conservation Area identifies that the area:
•Is a visually cohesive collection of buildings in the formal architectural styles commonly employed in the late nineteenth and early twentieth centuries[.]
•Is a highly intact streetscape of commercial buildings, developed between the 1890's and the early inter-war period, representing the development of commerce and trade in the city in the period immediately following the gold boom.
•… [R]etains evidence of a wide range of use … illustrating the complex development and variety of city commerce.
•… [H]as associations with people form diverse nationalities and backgrounds, reflecting the opportunities for commerce taken up by enterprising groups and individuals form the nineteenth to the early twentieth centuries.
•It provided the link between the river port and the residential areas that developed to the north of the city in the mid nineteenth century, and as such represents the development of the city of Perth form the earliest period of settlement of the Swan River Colony to the present.
Mr Noel Robertson, a town planner with heritage qualifications and experience, was called by the respondent to give evidence in relation to the impact of the proposed development on the cultural significance and character of the Barrack Street Conservation Area. In summary, it was his opinion that the proposed development:
1)was of a size and scale, and in a location (on top of the building) that is in conflict with the statements of intent for the precinct because it does not take its design cues (in terms of size and scale) from the period identified;
2)will draw the viewer's eye away from the important visual link to the Town Hall when viewing south from the Barrack/Wellington Street intersection;
3)does not respect and will impact on the cultural significance of the heritage place given the highly intact streetscape and the failure of the proposed development to take its design cues from that intact streetscape; and
4)will visually dominate the entry into the heritage area because of its size, scale and location.
Ms Felicity MorelEdnieBrown, an historian and heritage consultant who was called to give evidence by the applicant, disagreed with Mr Robertson's opinions. It was Ms MorelEdnieBrown's opinion, in summary that:
1)the sign will not be visually intrusive. Its bulk, scale massing and design are not disrespectful to the existing buildings on the eastern side of the street, which are adjacent;
2)the sign is not proposed to be directly placed on heritage fabric and does not obstruct a view to a heritage place within the Heritage Precinct;
3)the site is not easily read as part of the Heritage Precinct as viewed from the intersection of Wellington and Barrack Streets because of the substantial scale and massing of the Adina Hotel Apartments immediately to the south; and
4)the proposed development will not be detrimental to the cultural heritage significance of the Barrack Street Heritage Area.
In responding to questions about her opinions and the foundation for them, the Tribunal found Ms MorelEdnieBrown to be argumentative and evasive. We were concerned that, despite her undertaking to assist the Tribunal rather than advocate for any particular party, it appeared to us that Ms MorelEdnieBrown did her best not to answer questions that she thought might go against the interests of the applicant. It also appeared to us that she deliberately worded her evidence in such a way as to appear to address an issue whilst actually avoiding it. One example of this was Ms MorelEdnieBrown's evidence in relation to 'visual clutter'. The terms 'visual clutter' and 'visual noise' are referred to in the original Signs Policy (and the amended Signs Policy) and in context can be understood as relating to the proliferation of signs within a particular locality. Ms MorelEdnieBrown gave evidence, written and oral, in relation to her opinion that there was no 'visual clutter' caused by the proposed development. However, Ms MorelEdnieBrown explained that when using this term she meant only that there were no signs that were visually adjacent to, or that overlapped with, the proposed development. Ms MorelEdnieBrown did not provide any foundation for her opinion that in order to determine whether there was visual clutter it was 'useful to look at adjacency to other signs to determine whether proliferation has occurred' (Exhibit 18, at paragraph 199). The Tribunal does not accept that the concept of proliferation is ordinarily, or in the circumstances of this case, determined only by whether there are signs that are adjacent.
Ms MorelEdnieBrown stated that the proposed development would not impact the character or cultural significance of the heritage area because, in her opinion, the proposed development would be read against the back drop of the Adina Apartments hotel so significantly that it would not be read against the Heritage Precinct. Ms MorelEdnieBrown based this on montages that the Tribunal determined could not be relied upon, as there was an absence of evidence about how those montages were created, including the type of camera and lens used, the locations, and viewing heights used. Based on the Tribunal's view of the location, we are satisfied that the proposed development would be within view as one looked down Barrack Street from Beaufort Street on the north side of the Intersection. The Tribunal accepted the uncontradicted evidence that the view from this perspective southwards of the Heritage Precinct (including the Town Hall) and of the Bell Tower, is an important view of the city in terms of the city's identity and in terms of tourism. The Tribunal is therefore not satisfied that an important foundation for Ms MorelEdnieBrown's opinion is accurate.
For these reasons, we prefer the evidence of Mr Robertson to that of Ms MorelEdnieBrown in relation to the impact of the proposed development on the cultural significance of the Barrack Street Conservation Precinct.
The Tribunal is satisfied that the proposed development does not respect, and would negatively impact on, the cultural significance of the heritage place/area.

Visual clutter

Both the original Signs Policy and the amended Signs Policy have objectives related to the desirability of preventing visual clutter caused by the proliferation of signs within a particular location.
As indicated above, the Tribunal does not accept Ms MorelEdnieBrown's view that the question of whether there is a proliferation of signs in a locality can be determined by having regard only to whether there are any signs that are adjacent to the proposed sign.
Ms Margaret Smith, a town planner and the Manger for Development Approvals for the respondent, stated that (Exhibit 15, at paragraph 68 and 69):
Being within the primary retail area of the city, the locality contains a large number and variety of signs that generally advertise the businesses or products and services on offer within the buildings in the locality. …
The addition of third party advertising within a locality can add to the proliferation of signage in that area as it is not limited to identifying businesses or premises and therefore, can be proposed in any location where there is appropriate exposure to passersby. Such advertisements can detract from the visual amenity of the city, from wayfinding and from the advertising of city businesses together with their goods and services. This in turn can have a negative impact on people's experience and enjoyment of the city and on the success of city businesses. When too many signs compete for the viewer's attention, this excessive or confusing messaging is considered 'visual clutter' …
There are two very large existing third party hoarding style signs located within the railway reserve land on the north-eastern corner of Barrack Street and Wellington Street, opposite the site. There is also a large banner sign displaying third party advertising on the adjacent building at 379 Wellington Street (on the Grand Hotel building).
Ms Smith gave evidence that the signs on the railway reserve land were not within the respondent's development approval authority and that the sign on the Grand Hotel building had been approved 'many years ago' (Exhibit 15, at paragraph 70).
It was Ms Smith's opinion that (Exhibit 15, at paragraph 70]):
… The existing confluence already presents an element of visually dominating third party advertising, which is tempered by the images being static rather than being variable messaging and by the sign [on the Grand Hotel] being set back from the streets. The proposed development would add another large scale and dominant advertising sign at this intersection that will wrap around both street facades dominating the southeast corner of the intersection and competing for the viewer's attention with frequently changing displays of multiple advertisements. In my opinion this will lead to visual clutter and an undesirable proliferation of general advertising[.]
Mr Murray Robert Casselton, a town planning consultant called to give evidence by the applicant, also provided an opinion in relation to whether the proposed sign would result in proliferation of third party advertising and add to visual clutter. Mr Casselton started his analysis of this issue by referring to the ordinary meaning of the word 'proliferate' in the Macquarie Dictionary (Exhibit 14, at paragraph 6.4):
1)to grow or produce by multiplication of parts, as in budding or cell division.
2)To rapidly spread or increase in number.
Mr Casselton then when on to state (Exhibit 14, at paragraphs 6.4.2 and 6.4.3):
In my opinion, I do not consider that the proposed sign … will result in a proliferation of third party advertising for the following reasons.
Proposed sign … is only one sign and will result in there being only three significant third-party signs in the immediate locality of the Wellington Street/Barrack Street intersection, including the third party hoarding sign on the north eastern corner within the rail reserve and the APN billboard sign on the four storey Grand Hotel Building at 379 Wellington Street which forms the eastern backdrop to the subject land. The limited additional impact on the proposed sign … is very clear in Photomontages MC61, MC64 and MC67 in Annexure MC6 Photomontages.
I do not consider one additional third-party sign to constitute signage 'growing or producing by multiplication of parts, as in budding or cell division 'as there would be no continuation of the process to create more third party signage beyond that proposed.
I also do not consider that an increase in third party signage of one sign constitutes a 'rapid' spread or significant 'increase in number', or that the approval of one sign will cause other third party signage to necessarily further proliferate.
In my view the subject land and the temporary signage opportunity associated with it are in fact relatively unique in that, with the exception of the blank wall of an office building sitting behind the Subject Land to the east facing Wellington Street, there are no other sites that would present equivalent signage opportunities or the opportunity to improve a streetscape until such time as a more comprehensive redevelopment of the Subject Land can occur. This accords with my more general view as expressed in paragraph 6.2.4 above, that suitable locations for such signage are relatively limited due to significant initial setup costs and the requirement for a large appropriately positioned 'canvas' that orientates adequately to keep pedestrian and vehicular traffic routes.
I also do not consider that the proposed sign … will add significantly to a sense of visual clutter or visual 'noise', for the following reasons:
The development of the proposed sign … and parapet wall extension will result in positive modifications to an existing building on the Subject Land that currently is a highly discordant visual element in the Barrack Street and Wellington Street streetscapes and that provides an unsatisfactory entry point at a key location into the Citiplace Precinct. The current exterior colour treatment of the existing building and air conditioning condensers above the pedestrian awning in my view contribute more undesirable visual clutter and noise than the proposed sign … will, particularly to the Barrack Street streetscape. The proposed sign … parapet wall extension and other associated changes to the building in my opinion represent a much improved outcome from the current situation in terms of cleaning up visual clutter and visual 'noise', and replacing it with a contemporary digital sign with clean lines and a high-quality appearance with more appropriately scaled building facades.
the proposed sign … is only a single sign and there is currently very little signage of any type evident on the south eastern corner of the Barrack Street/Wellington Street intersection that adversely contributes to visual clutter or visual 'noise' … As a result of the development signage will be effectively limited to the Proposed Sign and the APN billboard sign and separate accommodation billboard sign on the Grand Hotel building at 379 Wellington Street. This does not in my opinion result in an adverse level of visual clutter or visual 'noise'.
Notwithstanding the prominent nature of the Barrack Street/Wellington Street intersection there is no evident existing proliferation of third party signage with the 'Stockade' building on the south western corner having only a limited 'drizabone' component to either side of a business name above roof sign oriented towards Wellington Street, no readily discernible signage on the north-western corner and a single third party hoarding sign on the north east corner.
The western side of Barrack Street extending south does also not in my opinion have an extent of existing signage that results in inappropriate visual clutter or visual noise … although the existing signage would benefit from upgrading or replacement to ensure continued relevancy and impact.
As indicated above, the Tribunal did not accept that it could rely on the accuracy of the photomontages because of the lack of detail concerning how they were created. For that reason, where Mr Casselton relies on those photomontages alone as foundation for his opinion, the Tribunal considers there is no foundation for that opinion. The Tribunal is not persuaded by the statements of Mr Casselton in paragraph 6.4.2 cited above because the reliance on the strict dictionary meaning of the term 'proliferation' does not accord with the use of the term within the context of the Signs Policy. The Tribunal also does not consider it relevant, in relation to determining whether or not there is visual clutter, that the site is one of apparently unrivalled signage opportunity. However, Mr Casselton does provide foundation for his opinion in paragraph 6.4.3 cited above and that foundation is not entirely restricted to reliance on the photomontages.
In the joint witness statement of the planning experts (Exhibit 17, at paragraph 51) Ms Smith and Mr Casselton agreed that:
…the intent of the Signs Policy is to avoid an inappropriate proliferation of signage in a single location.
Ms Smith and Mr Casselton agreed in relation to the identification, number and type of signs in the locality. However, they maintained their disagreement in relation to whether the addition of the proposed development would result in visual clutter. Neither witness changed their evidence upon further questioning at the hearing.
The Tribunal prefers the evidence of Ms Smith in relation to visual clutter. Ms Smith's opinion was based on the concept of visual clutter as that term is used in the Signs Policy rather than on an artificial and unnatural meaning of the term in the context of a policy of this kind. Ms Smith's opinion was supported by the Tribunal's view of the site and locality. The Tribunal finds that although the proposed development involves the introduction of a single sign into the locality, the proposed sign is of such a scale and is of a changeable nature, and is located very near to a number of other large scale signs, that the overall result is that the proposed sign would result in visual clutter. The Tribunal finds that the proposed development is inconsistent with this aspect of the Signs Policy.

Safety

As indicated above, the original Signs Policy has as one of its objectives to ensure that the design and location of signs are such as to avoid danger or unnecessary distraction to motorists or pedestrians. The amended Signs Policy aims to ensure safety by ensuring that signs do not cause a potential distraction to road users or obscure road users' views of vehicles, pedestrians or potentially hazardous road features, and do not cause confusion with, or reduce the effectiveness of traffic control devices.
Two expert witnesses gave evidence in relation to issues concerning road safety. Ms Charmaine Chalmers Dunstan is a civil engineer with a Masters in Traffic and a Masters in Transport and has worked as a Traffic Engineering and Transport Planning consultant for over 20 years in Victoria. Mr Graham Douglas Newson is the Principle Engineer Traffic and Transport within the Transport Unit at the City of Perth with 37 years' experience of highways and traffic engineering working for local and other government agencies and as a private consultant.
Ms Dunstan carried out a traffic engineering assessment on behalf of the applicant (Exhibit 11). Based on a literature review, Ms Dunstan outlined nine points that, in her opinion, can be taken from the existing research. Ms Dunstan was questioned about whether or not some of those points were accurate summaries of the literature referred to. Although Ms Dunstan maintained that the statements she had made where accurate summaries of the literature, the Tribunal is not satisfied that it is appropriate to make findings that the points outlined by Ms Dunstan are, or are not, correct without having the source material in evidence before the Tribunal.
Ms Dunstan carried out a road safety review of historical casualty crash data for the Intersection and those parts of the roads from which the proposed development would be visible. That is, the southbound carriageway of Beaufort Street from the Intersection with James Street up to the Intersection and the eastbound carriageway of Wellington Street from in front of the Perth Railway Station to the Intersection. This review area included a total of 28 casualty crashes. Of those, 12 occurred at the Beaufort Street/Roe Street intersection. Ms Dunstan was of the view that only four of those crashes were relevant as the others were such that the proposed development would not have been potentially visible to drivers. The remaining 10 casualty crashes occurred at the Intersection, but for the same reason, Ms Dunstan considered only four of those relevant.
Following her analysis of the data, Ms Dunstan concluded that the recorded crashes were isolated incidents that did not indicate any existing inherent safety concerns at these locations. She stated that the amount of casualty crashes reported was a function of the high traffic volumes. She was not satisfied that there was any pattern suggestive of an existing safety issue.
Mr Newson stated that (Exhibit 12, at paragraph 13):
The intersection of Barrack Street and Wellington Street is ranked as number 232 in Western Australia in the Main Roads Western Australia Intersection Crash Ranking, with 73 recorded crashes in the five years to the end of 2014. Within the City of Perth it is ranked number 12, based upon numbers of crashes.
He also stated that that Intersection is an extremely busy one for pedestrian movements and is also on a designated cycle corridor (along Barrack Street).

Mr Newson was of the view that the proposed sign had the potential to create distraction for drivers, pedestrians and cyclists from a number of locations as they approach the Intersection, which is a critical time in terms of demand for attention and decisionmaking.
Mr Newson noted that the location of the proposed development is within the device restriction zone identified in the Main Roads Western Australia document 'Policy and application guidelines for advertising signs within and beyond state road reserves' published in June 2015 (MRWA Guidelines). Mr Newson stated that the device restriction zone is related to the stopping sight distance of drivers and therefore the ability of vehicles to stop in time. In Mr Newson's opinion the proposed development would result in the advertising sign being behind or slightly above the traffic signals for southbound traffic in Beaufort Street approaching the Intersection. In Mr Newson's opinion this will impact on the ability of drivers to react to hazards within the restriction distance and therefore potentially interfere with the driver's ability to stop.
Mr Newson stated that this document represents 'good practice for local authorities in consideration of development applications'. Ms Dunstan did not agree that the MRWA Guidelines were applicable to consideration of whether development approval should be granted in relation to signage within or next to local authority road reserves.
The Tribunal is not satisfied, in light of the dispute on this topic between the experts and given that the MRWA Guidelines was not mentioned as a relevant policy guide by the respondent's town planner, that the MRWA Guidelines is a relevant policy for assessment of this application. However, Mr Newson's comments in relation to the location of the proposed development, the potential for that to potentially impact on the ability of a driver to respond and consequently stop in sufficient time is relevant.
Ms Dunstan disagreed with Mr Newson's opinion on this point. It was her view that the proposed development would be unlikely to impact on the ability of the driver to respond to the signal to stop because there are multiple lights in each direction at this intersection and the driver is not left without sufficient ability to observe the traffic signals, even when one particular lamp may be backgrounded by the sign for a short period of time.
After conferring, Ms Dunstan and Mr Newson agreed that (Exhibit 13, at paragraphs 5 to 8):
The proposed development would not obstruct a driver's line of sight along Beaufort Street, Barrack Street, or Wellington Street carriageways in any direction.
In the eastbound, westbound and northbound directions, the proposed sign would not background any traffic signal lanterns of the Beaufort Street/Barrack Street/Wellington Street intersection.
The proposed sign will not significantly attract the attention of pedestrians crossing the intersection from the northwest to the southwest corner of the Beaufort Street/Barrack Street/Wellington intersection.
The proposed sign will not significantly attract the attention of pedestrians crossing the intersection from the northwest to the northeast corner of the Beaufort Street/Barrack Street/Wellington intersection.
Ms Dunstan and Mr Newson disagreed in relation to (Exhibit 13, at paragraphs14 to 18):
The level of distraction for pedestrians crossing in an eastward direction from the southwest corner to the southeast corner of the Beaufort Street/Barrack Street/Wellington intersection.
The level of distraction for pedestrians and cyclists crossing in a southward direction from the northeast corner to the southeast corner of the Beaufort Street/Barrack Street/Wellington intersection.
The level of distraction for vehicles travelling in a southbound direction along Barrack Street bridge approaching Wellington Street.
The level of distraction for vehicles travelling in a northbound direction along Barrack Street intending to turn right into Wellington Street.
The level of distraction for vehicles travelling in an eastbound or westbound direction along Wellington Street.
The Tribunal had the benefit of a site visit and of viewing a video taken from inside a car approaching the Intersection in the southbound direction on Beaufort Street and in the eastbound direction on Wellington Street.
On the evidence before it, the Tribunal is satisfied that the proposed development would result in an advertising sign backgrounding some traffic signal lights for brief periods of time in the southbound direction of travel. The proposed development would result in an advertising sign that would be viewable by drivers in both the southbound and eastbound directions of travel. The proposed development is inconsistent with the original Signs Policy and the amended Signs Policy on these bases.
The Tribunal is satisfied that this is a high volume traffic intersection with the addition of a cycleway and the existence of significant numbers of pedestrians.
The Tribunal is satisfied that a digital advertising sign that changes display frequently has the potential to distract drivers. On the evidence before it, the Tribunal is not able to determine whether or not the proposed development would cause any road safety issue.

Conclusion in relation to consistency with policy

The Tribunal is satisfied that the proposed development is not consistent with the objectives, and relevant provisions of, the original Signs Policy. It is even more inconsistent with the amended Signs Policy.
The Tribunal is not satisfied that the proposed development is consistent with the provisions or objectives of the Heritage Policy.
We are not satisfied that, on the merits of this proposal, there is any reason to depart from policy in this case. Mr Casselton was of the opinion that the site is one of almost unparalleled opportunity for this type of advertising sign. The Tribunal is not satisfied that this provides any cogent reason to depart from the applicable policies in this case.

Amenity

As stated above, the Tribunal is satisfied that the proposed development would negatively impact on the cultural significance of the Barrack Street Conservation Precinct as a whole.
Mr Casselton and Ms Smith agreed that the existing building on the site provides a poor entry statement to the Barrack Street Heritage area and the Citiplace Precinct. They also agreed that the proposed relocation of the existing airconditioners from the awnings to a screened area and repainting the building façades would be beneficial to the visual amenity of the streetscape. They agreed that it would be beneficial for the site to be redeveloped to provide a more appropriate built scale and contemporary design that bookends the corner and make a positive contribution to the streetscape. Mr Casselton and Ms Smith agreed that the Wellington Street streetscape in the immediate vicinity of the site, and in front of the Forrest Chase development and extending east, is of relatively poor character and quality.
However, Ms Smith was of the opinion that the proposed development would nonetheless have a negative impact on the amenity of the area.
The character of the area is an aspect of amenity. In this case the Tribunal finds for the same reason as we are satisfied that the proposed development would adversely impact on the cultural significance of the Barrack Street Conservation Precinct, that it would consequently have an adverse impact on the character of the area.
The Tribunal is satisfied that the proposed development would have a negative impact on the amenity of the locality.

Impact on safety for vehicles or pedestrians

As stated above, the Tribunal is not satisfied that it has sufficient evidence before it to determine whether or not the proposed development would have any impact on safety for vehicles.
The experts agreed that the proposed development would not impact on the safety of pedestrians crossing from the northwest to the northeast corner of the Beaufort Street/Barrack Street/Wellington Street intersection.
The evidence of the experts establishes that the Intersection is a busy one with high traffic volumes. The crash history shows a significant number of casualty crashes in this location. While that may not reveal any existing road safety issue per se, it is nonetheless indicative of a busy intersection that has a relevant history of crashes. In such a location, the Tribunal considers that it should be reluctant to approve a proposed development for a rapidly changing digital advertising sign contrary to policy provisions aimed at ensuring road safety without good reason.
In the circumstances of this matter where the Tribunal is satisfied that there is potential for the proposed development to cause driver distraction; there is a relatively complex road environment with high traffic volumes as well as significant number of pedestrians and cyclists; the sign is within an area where critical decisions concerning the need to stop will arise; the proposed sign will backdrop some traffic light signals; the Tribunal is not sufficiently satisfied that there will not be a risk to safety caused by the proposal.

Effect on cultural heritage significance of area

For the reasons specified above in relation to policy concerning heritage, the Tribunal prefers the evidence of Mr Robertson. The Tribunal finds that the proposed development would have a negative impact on the cultural significance of the area.

Conclusion and orders

Having regard to all of the above matters, the Tribunal is satisfied that the correct and preferable decision in relation to this review is that the proposed development should be refused.

Orders

The Tribunal makes the following orders:
1.The application is dismissed.
2.The decision of the respondent made on 19 July 2016 to refuse to grant development approval for a proposed digital display advertising sign to be mounted on a support structure located on the roof of the existing building on the site in accordance with the amended plans drawn by KAS, Job No 1622, drawings No 1, No 3 and No 4 being revision I dated 19 June 2016 and drawing No 2 being version H, dated 8 June 2016 is affirmed.

I certify that this and the preceding [130] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER