Galloway & Associates and City of Melville
[2007] WASAT 238
•12 SEPTEMBER 2007
GALLOWAY & ASSOCIATES and CITY OF MELVILLE [2007] WASAT 238
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 238 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:319/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (MEMBER) | 12/09/07 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed. Decision under review set aside. | ||
| B | |||
| PDF Version |
| Parties: | GALLOWAY & ASSOCIATES CITY OF MELVILLE |
Catchwords: | Town planning – Local government – Approvals and consents – Signs and advertisements – Roof sign – Approval for various signage given in 2003 – Extent of approval for sign – Whether approval extended to particular advertisement – Approval in effect revoked in 2006 – Later application held to be unnecessary in any event – 2003 approval given in part on basis of extant rights – Local government impermissibly intermingling local law on signage with planning permission – Scheme poorly drafted – Principles of practical interpretation of town planning schemes – Liberal interpretation of extant rights favoured – 2003 approval could not be recalled – 2006 decision could not be inconsistent with previous approval – Application for review upheld – 2006 decision refusing approval set aside by Tribunal – Words and phrases: "sign" |
Legislation: | City of Melville Community Planning Scheme No 5, cl 5.10, cl 5.10(c), cl 8.1, Sch 1, Sch 4, City of Melville Local Laws Relating to Signs, Hoardings and Billposting (1984) Metropolitan Region Scheme Planning and Development Act 2005 (WA) Town Planning Regulations 1967 (WA), Appendix B |
Case References: | Adbooth Pty Ltd v Ryde City Council (2006) 150 LGERA 401 Bakker and City of Nedlands [2005] WASAT 106 BP Australia Pty Ltd and City of Mandurah [2006] WASAT 341 City of Kensington & Norwood v Claude Neon Ltd (1979) 22 SASR 91 Lederer v Sydney City Council (2001) 119 LGERA 350 Marinelli v City of Fremantle (2006) 43 SR (WA) 382 Marshall and City of Rockingham [2006] WASAT 249 McDonald's Properties (Australia) Pty Ltd v Maroochy Shire Council [1998] QPELR 3 Samels v Victor Harbor District Council (1988) 67 LGRA 37 Seat Ads (WA) Pty Ltd v Commissioner of Main Roads [No 4] (1986) 63 LGRA 98 |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside.,3. In substitution for the decision under review there will be a decision that planning approval is not required for the subject sign because of the existence of an extant approval in respect of the advertising proposed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GALLOWAY & ASSOCIATES and CITY OF MELVILLE [2007] WASAT 238 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 SEPTEMBER 2007 FILE NO/S : DR 319 of 2006 BETWEEN : GALLOWAY & ASSOCIATES
- Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords:
Town planning – Local government – Approvals and consents – Signs and advertisements – Roof sign – Approval for various signage given in 2003 – Extent of approval for sign – Whether approval extended to particular advertisement – Approval in effect revoked in 2006 – Later application held to be unnecessary in any event – 2003 approval given in part on basis of extant rights – Local government impermissibly intermingling local law on signage with planning permission – Scheme poorly drafted – Principles of practical interpretation of town planning schemes – Liberal interpretation of extant rights favoured – 2003 approval could not be recalled – 2006 decision could not be inconsistent with previous approval – Application for review upheld – 2006 decision refusing approval set aside by Tribunal – Words and phrases: "sign"
(Page 2)
Legislation:
City of Melville Community Planning Scheme No 5, cl 5.10, cl 5.10(c), cl 8.1, Sch 1, Sch 4,
City of Melville Local Laws Relating to Signs, Hoardings and Billposting (1984)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
Town Planning Regulations 1967 (WA), Appendix B
Result:
Application for review allowed. Decision under review set aside.
Category: B
Representation:
Counsel:
Applicant : Mr P McQueen and Mr B McMurdo
Respondent : Mr Podgorny (Acting as Agent)
Solicitors:
Applicant : Lavan Legal
Respondent : City of Melville
Case(s) referred to in decision(s):
Adbooth Pty Ltd v Ryde City Council (2006) 150 LGERA 401
Bakker and City of Nedlands [2005] WASAT 106
BP Australia Pty Ltd and City of Mandurah [2006] WASAT 341
City of Kensington & Norwood v Claude Neon Ltd (1979) 22 SASR 91
Lederer v Sydney City Council (2001) 119 LGERA 350
Marinelli v City of Fremantle (2006) 43 SR (WA) 382
Marshall and City of Rockingham [2006] WASAT 249
McDonald's Properties (Australia) Pty Ltd v Maroochy Shire Council [1998] QPELR 3
Samels v Victor Harbor District Council (1988) 67 LGRA 37
(Page 3)
Seat Ads (WA) Pty Ltd v Commissioner of Main Roads [No 4] (1986) 63 LGRA 98
(Page 4)
Summary of Tribunal's decision
1 This review concerned a 2006 decision by the respondent City of Melville to, in effect, reverse an approval that it had earlier given to the applicant (Galloway and Associates) in 2003 for the continued display of an advertising sign on commercial premises in Canning Highway, Ardross. One of the units in those premises was occupied by the applicant at that time.
2 It appeared that the sign had been in existence for a long period of time. In 2003 the City regarded the sign as already having some form of previous approval; it approved the sign. Later, however, when the applicant moved offices, the City took a different view, saying that there was a prohibition on roof signs in the local town planning scheme, a scheme which had not materially altered between 2003 and 2006.
3 The City also complained that if there was an original approval then the advertising message had changed from that previously considered. The Tribunal said that planning case law indicated that it was unlikely that here a particular advertising message had been fixed for all time. In any event, the advertisement in substance had not materially altered.
4 The Tribunal looked at both approvals and the context of the regulatory regime. It found that the mixing up by the City of two separate, although related, regulatory regimes, one for land use and development and the other for regulating signs (under a Local Law), was unsatisfactory. In any event, the 2003 approval once given could not be recalled.
5 The application was upheld. The Tribunal set aside the 2006 decision and confirmed the effect of the previous approval.
Introduction
6 In July 2003, Galloway and Associates (applicant) applied for planning approval solely in respect of an "existing billboard/sign erected above [the] roof of [the] building" at Lot 2, 793 - 795, Canning Highway, Ardross. The applicant was successful in that proposal. The proposal included information regarding the design and content of an advertisement for the applicant. The sign advertised the applicant's business.
7 In 2006, for reasons that are not entirely clear (or perhaps not relevant), the applicant applied again in respect of the same sign (with a
(Page 5)
- slightly different advertising design), and this time they were unsuccessful. That second decision has resulted in this review.
8 In respect of both applications the owner of the subject land (who was not the applicant) consented to the applications.
The 2003 and 2006 decisions
9 At the time of the 2003 application, the applicant was operating from the adjoining unit 1 (or Lot 1) at the Ardross address noted above. Notwithstanding the terms of the application set out above, approval was assessed by the City of Melville (respondent or City) in terms of a number of commercial signs on the subject land and, it appears, on one or more of the adjoining lots. These signs are listed as "A" through to "F". (No explanation has been provided as to why this process occurred. In fact, the Tribunal has often, as will be apparent from what is said at various points below, been left to speculate on matters of detail in this review.)
10 The form appearing in Schedule 4 to the City of Melville Community Planning Scheme No 5 (CPS 5), "Control of Advertisements of [sic] CPS 5", which is headed "Additional Information Sheet for Advertisement Approval (to be completed in addition to Application for Planning Approval)" was not completed by the applicant. It was not completed in either 2003 or 2006. This inference is open as neither party has produced this document for the Tribunal.
11 Planning approval was consequently granted, in 2003, in terms of "various signage". That approval is neither a model of precision nor clarity. However, it seems common ground that the roof sign on the subject land was approved in some form or another. It may be inferred that sign "E" (as appears in the officers' report below) is the sign now in question as it is described as "an existing roof panel". Curiously, this sign is also referred to as a "Tower Sign". Again, no explanation is offered by either of the parties concerning this anomaly.
12 At the time that this application was first considered by the respondent the land was zoned "Industrial" under the Metropolitan Region Scheme (MRS), "DC 2" ("District Centre 2") under CPS 5, with an R-coding of R60 and a use class, it appears, for Lot 1 of "Shop". The use class came from a separate change of use, approved on 19 August 2003. However, nothing appears to turn on that fact or whether the change of use is, in fact, in respect of another associated lot.
(Page 6)
13 Although some of the City's internal documents from 2003 refer to Lot 1, instead of Lot 2, again nothing appears to turn upon this as the actual instrument of planning approval, dated 24 September 2003, refers to "2/795 Canning Highway, Applecross". Some of the confusion may be attributable to the fact that either, as mentioned, the firm then operated out of unit 1 (or Lot 1) while the sign was erected on unit 2 (or Lot 2), or that the application was assessed in terms of various signs on both Lot 1 and other lots. Again, the Tribunal is left to speculate upon these matters.
14 The final approval in 2003 carried with it the following conditions:
"SPECIAL CONDITIONS
1. Sign "A" to comply with the following;
i) Decrease the height of the sign to 1.5 metres
ii) Not to be within 600mm of end of the wall to which it is attached.
2. Sign "C" to be deleted as it does not comply with the Local Laws Relating to Signs Hoardings and Billpostings [sic].
3. The sign being located entirely within the subject lot.
CONDITIONS
1. The sign to be maintained to operate as an internally illuminated sign."
15 It is to be noticed that the deletion of one of the signs, sign "C", (not, it appears, strictly relevant to the original application) is expressed to be because of a failure to comply with the City of Melville Local Laws Relating to Signs, Hoardings and Billposting (1984)(Local Law).
16 It may be argued or even inferred that, if it be relevant, sign "E" (the roof sign) was so compliant with the Local Law.
17 Importantly, in 2003, the officers noted that, in respect of sign "E":
"There is an existing roof panel, which has been approved over twenty (20) years ago. As per clause 5.10 of CPS 5(c)(ii) [a sign] 'may be erected, placed or displayed pursuant to a licence
(Page 7)
- or other approval granted by the Council prior to the approval of the scheme ...'
This being the case the request for the new advertising on the existing panel is supported."
18 Thus, the sign appears to have been in continuous use as a sign from at least 2003 (and possibly well before then). It is possible that non-conforming existing use rights were applicable, but for the reasons set out below it is unnecessary to canvass that possibility.
19 The following hand-written notations on a copy of the strata plan accompanying the July 2003 application may also be relevant. Against Lot 2 there is a sketch mark as to the approximate location of the sign with the comment: "Written content as per art work and schematic drawings". These documents appear to be attached and state the name of the applicant's firm, their business and a telephone number. Certain dimensions are also provided.
20 As mentioned, in July 2006 the same firm applied for planning approval for the "[c]ontinued use of [an] existing sign". This appears to have been done on the basis that the applicant was ceasing to use that site (strictly, an adjoining site) and was moving to another office in the immediate neighbourhood. The design of, but not the essential message of, the sign appears to have altered at this stage.
21 It may be remarked that from a planning point of view it is in itself irrelevant that the applicant was not an occupant of the subject land, the owner having given his consent to the application.
22 The City assessed the proposal as an application for "retrospective [approval for a] sign on Lot 1 (2/795) Canning Highway", saying:
"SUMMARY
The applicant seeks City of Melville's consideration for an existing sign to remain at the subject site despite cessation of use on site. The sign is classified as a roof sign and advertises for a real estate business, namely, Galloway and Associates, which is currently located within the vicinity at 32 Kearns Crescent, Applecross.
BACKGROUND
(Page 8)
- The subject sign was granted conditional approval on 24 September 2003. The sign was approved on the roof of Unit 2, however, the sign advertised for the real estate office use in Unit 1. In late 2005, Galloway and Associates relocated to another premises within the immediate area. The signage at the subject site was not removed but instead allowed to remain by the owner of unit 2."
23 The 2006 application was refused for the following reasons:
"1. Non compliance with the City's Local Law relating to Signs.
2. City of Melville's Community Planning Scheme No.5 prohibits roof signs [i]n District Centre Precinct - Riseley Centre."
24 Apart from the possible extended application of the Local Law, in the 2006 assessment it appears that only the MRS zoning had altered from "Industrial" to "Urban". Again, nothing material turns upon that change.
25 No explanation is offered by the respondent to explain the radical difference between the officers' position in 2003 compared with that of 2006.
The planning framework
26 Some elements of the planning framework have already been mentioned above. What follows immediately below is a more detailed assessment of that framework.
27 It appears that, at the time of both the 2003 approval and the 2006 rejection by the City, CPS 5 (at least in relation to DC 2) was unchanged. Neither party has suggested otherwise, and a search of the gazetted amendments to CPS 5 by the Tribunal appears to confirm this position. The clause provided, relevantly, as follows (emphasis added):
"DC2 - RISELEY CENTRE
Statement of Intent
Primarily retail shopping, boutiques, small-scale offices, restaurants and other commercial activities and residential use.
Development Requirements
(Page 9)
- …
Advertising Control Tower and roof signs are prohibited. At the discretion of the Councilother signs may be approved in accordance with the Signs, Hoardings and Billposting by-laws, as specified in Clause 5.10.
…"
28 Clause 5.10 of CPS 5, so far as is relevant, provides as follows (emphasis added):
"5.10 CONTROL OF ADVERTISEMENTS
For reasons of safety and amenity:
(a) for the purpose of this Scheme, the erection, placement and display of advertisements and the use of land or buildings for that purpose is development within the definition of the Act and requires, except as otherwise provided, the prior approval of the Council. Planning approval is required in addition to any licence pursuant to the Signs, Hoardings and Billposting by-laws of the Council;
(b) applications for planning approval by the Council pursuant to this Part shall be submitted in accordance with the provisions of Clause 7.4 of the Scheme and shall be accompanied by a completed Additional Information Sheet in the form set out at Schedule 4 giving details of the advertisement(s) to be erected, placed or displayed on the land;
(c) advertisements which:
(i) were lawfully erected, placed or displayed prior to the approval of the Scheme; or
(ii) may be erected, placed or displayed pursuant to a licence or other approval granted by the Council prior to the
- approval of the Scheme, hereinafter in this clause referred to as 'existing advertisements', may, except as otherwise provided, continue to be displayed or to be erected and displayed in accordance with the licence or approval as appropriate,
- (d) without limiting the generality of the matters which may be taken into account when making a decision upon an application for planning approval to erect, place or display an advertisement, the Council shall examine each such application in light of the objectives of the Scheme and with particular reference to the character and amenity of the locality within which it is to be displayed, including its historic or landscape significance and traffic safety, and the amenity of adjacent areas which may be affected;
…
(f) notwithstanding the Scheme objectives and sub-clause 5.10(e), where the Council can demonstrate exceptional circumstances which cause an exempted or existing advertisement to seriously conflict with the objectives of this clause, it may by notice in writing (giving clear reasons) require the advertiser to remove, relocate, adapt, or otherwise modify the advertisement within a period of time specified in the notice;
(g) where, in the opinion of the Council, an advertisement has been permitted to deteriorate to a point where it conflicts with the objectives of the Scheme or it ceases to be effective for the purpose for which it was erected or displayed, Council may by notice in writing require the advertiser to:
- (i) repair, repaint or otherwise restore the advertisement to a standard specified by the Council in the notice; or
- (ii) remove the advertisement;
- (h) 'the advertiser' shall be interpreted as any one person or any group composed of the landowner, occupier, licensee or other person having an interest in or drawing benefit from the display of the advertisement concerned;
…
(k) Where the provisions of this clause are found to be at variance with the provisions of the Signs, Hoardings and Billposting by-laws of the Council, the provisions of the Scheme shall prevail;
…"
29 It is common ground that the reference above to the "Signs, Hoardings and Billposting by-laws of the Council" is to be taken to be a reference to the City of Melville Local Laws Relating to Signs, Hoardings and Billposting (1984).
30 Clause 8.1 of CPS 5 deals with non-conforming use rights. It provides as follows:
"8.1 NON-CONFORMING USE RIGHTS
To safeguard the rights of existing land users, except as otherwise provided in this Part, no provision of the Scheme shall prevent:
(a) the continued use of any land, building or advertising sign for the purpose for which it was being lawfully used at the time of coming into force of the Scheme;
(b) the carrying out of any development thereon for which, immediately prior to the gazettal date of this Scheme, a permit or permits lawfully required to authorise the development to be carried out were duly obtained and are current."
(Page 12)
- "'Advertisement' means any word, letter, model, sign, placard, board, notice device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and includes any hoarding or similar structure used, or adapted for use, for the display of advertisements.
…
'Sign' means a notice, message or display by means of a freestanding or fixed sign or hoarding."
32 The Local Law provides that, subject to some specified exceptions (not presently relevant), no person "shall erect, make or maintain a sign or advertising device except pursuant to a licence" issued under the Local Law and that "[a]n owner or occupier of premises shall not suffer or permit a sign or advertising device to remain on those premises so as to be visible from a street, public reserve or other public place except pursuant to a licence" issued under the Local Law. Various definitions are in place in respect of signs and advertisements which it is unnecessary to refer to.
Applicant's contentions
33 So far as are material, the applicant's contentions may be summarised as follows.
34 There is evidence of earlier approvals in respect of the sign from 1979 - 1982. The applicant says that a valid approval was given by the respondent in 2003. Alternatively, approval for the sign was extant as at 2003 and 2006. The sign was never required to be site specific in relation to the applicant's actual location. The sign in substance carries the same advertisement it always has. The Local Law is irrelevant to the planning decision to be made. In any event, such a sign could be approved upon its merits.
Respondent's contentions
35 In reply, and so far as are material, the respondent's contentions may be summarised as follows.
36 The 2003 approval was for a sign and an advertisement in accordance with the documents and plans submitted. However, that approval "[was] not a valid approval" as roof signs are prohibited by CPS 5, and such a prohibition is incapable of variation under CPS 5. If, on the other hand, there was a valid approval, then that approval is limited
(Page 13)
- to the particular advertisement in the terms submitted in 2003. The 2006 design and colours "are [materially] different". Further, it is said that there are no existing use rights; that a further approval would be contrary to the Local Law; and that approval should otherwise be refused on the merits of the proposal.
The scope of the 2003 approval
37 It is clear that to talk of approval for a sign raises an element of uncertainty as to whether such an approval was intended to refer to land use and both the structure supporting the sign, and the signage itself (including its particular message from time to time). See, for example, Seat Ads (WA) Pty Ltd v Commissioner of Main Roads [No 4] (1986) 63 LGRA 98 where the plaintiff argued that pursuant to a statutory definition a "sign" may have been both a "structure" and a "display" ("the painted or otherwise applied advertisement"). So, in Lederer v Sydney City Council (2001) 119 LGERA 350 Lloyd J said, at [5]:
"[The] word "sign" is not a highly precise term. This is probably why the [relevant instrument there under consideration] instead uses the words 'advertisement' and 'advertising structure'. In this judgment I should make it clear, therefore, that in using the word 'sign' I am referring to the advertising structure together with the fabric and any advertisement which happens to be displayed on it from time-to-time. I am not referring to a particular advertisement for a particular product."
38 In Adbooth Pty Ltd v Ryde City Council (2006) 150 LGERA 401 the term "advertising sign" was defined by the relevant planning instrument as "[a]ny word, letter, image, device or representation or combination of them used for the purpose of advertising, announcement or display". It included "a structure used principally for the display of an advertising sign" (at [9]). Likewise, in McDonald's Properties (Australia) Pty Ltd v Maroochy Shire Council [1998] QPELR 3 the planning instrument there defined an "advertisement" as meaning "an advertisement or sign that is visible from a road or other public place and includes a structure that forms part of the advertisement or sign, or to which it is attached, or on which it is exhibited".
39 The definitions of "advertisement" and "sign" set out above (and in Sch 4 to CPS 5) are evidently modelled upon the corresponding definitions or provisions in the Model Text (see the Town Planning Regulations 1967 (WA) Appendix B, Model Scheme Text).
(Page 14)
40 That Model Text, like the other instruments just cited, does not make the mistake which sometimes seems to be evident in CPS 5 of impermissibly intermingling or confusing a quite separate regulatory regime for signs and advertisements (here provided for in the Local Law, itself apparently originating in a model text - see below), with the mechanism and criteria of planning approval in respect of land use and development. Alternatively, the reasoning of the City in exercising its discretion evidences the same problem. See, for example, the reference to the Local Law as a "Development Requirement" in the officers' report of 15 August 2006.
41 On the issue of the not infrequent problems associated with the interpretation of poorly drafted town planning schemes (of which the intermingling noted above may be considered to be an example), the Tribunal, as presently constituted, made the following observations in Marshall and City of Rockingham [2006] WASAT 249 (at [34] - [35]):
"In Chiefari v Brisbane City Council [2005] QPELR 500, Wilson SC DCJ said, at 502 (emphasis added):
'[The definitions under review] are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.'
See also PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 at 158 to similar effect speaking generally of town planning schemes, and see further Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 at [25]: '[P]lanning schemes are to be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach'; '[A]lthough planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament'. It has been relatedly observed on more than one occasion that '[p]lanning instruments are often poorly drafted but [tribunals] must make some sense of them': Stradbroke Island Management
(Page 15)
- Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 at 402."
42 The effect of such observations is considered below.
43 Why such intermingling of planning with licensing, whether in drafting or in application, is generally undesirable is illustrated by the following remarks of this Tribunal in Marinelli v City of Fremantle (2006) 43 SR (WA) 382, at [24] - [26] (emphasis added):
"Part of condition 1 imposed by the City was that all signs needed to comply with the City of Fremantle Signage Local Law. Whilst not provided to the Tribunal under this title, it is understood that this local law is a replica of the Draft Model By-laws (Signs, Hoardings and Billposting) provided to the Tribunal and adopted by the City under the former Local Government Act 1960 (WA). These laws are dated, do not cover all manner of signage the subject of the application, and do not deal with planning matters.
In Australian Posters Pty Ltd v Shire of Swan (Unreported, Appeal No. 14 of 1994, 15 November 1994), an appeal relating to the then Shire of Swan's refusal of a planning application for a sign on the basis of non-compliance with its sign by-laws, the Tribunal made the following comments:
'It is not …. appropriate for the Shire to refuse an application for development permission based on considerations found outside the Scheme which are not proper town planning matters. The provisions of the By-Law can only be understood and applied in the context created by the inter-relationship of its provisions and it is not correct to use the considerations for one domain in the resolution of issues in another. It was incorrect for the Shire, and it would be incorrect for the Tribunal to apply the provisions of the By-Law as the basis for consideration of this issue.'
In WA Billboards & M Berridge and Shire of Augusta-Margaret River [2003] WATPAT 81, and again in Plantation Resort Management Pty Ltd and Shire of Broome [2004] WATPAT 153, the Tribunal concurred with this view and, in both cases, held that '[t]he Local Law should not be given weight in the consideration of [the] appeal'."
(Page 16)
44 Compare, however, BP Australia Pty Ltd and City of Mandurah [2006] WASAT 341 at [30] - [31].
45 In Lederer v Sydney City Council (2001) 119 LGERA 350 the Court made some observations which might be applicable here, if for no other reason than that they recognise that different regulatory regimes might well apply in respect of signs. Lloyd J said, at [89] - [90] (emphasis added):
"The development application was made on a council form which contains a heading 'Details of proposed signs', under which the applicants have filled in the required information: that the sign is to be 10 metres by 40 metres, the 'Type' is 'paint', and the lettering is 'Traditional format - "Coca Cola" - Spenserian script with dynamic ribbon'. These details do refer to a particular advertisement. However, it has never been suggested by the council that consent was only sought, or granted, to the erection of that advertisement. Nor does the nomination of the wording create any implication that subsequent changes of content are to be subject to the council's approval. The details may have been requested for practical purposes so as to enable the council to consider the issue of the initial licensing of the sign at the same time as it considered the development application.
To my mind this is quite consistent with the council having granted consent to an advertising sign, the content of which would be variable but subject to such regulation as was provided under such other instrument as may apply from time to time."
46 In City of Kensington & Norwood v Claude Neon Ltd (1979) 22 SASR 91 Jacobs J found that an approval of the Council "was not necessary, as the erection of [a] new superstructure and sign was a continuance of the existing use" of certain land occupied by a hotel and building. His Honour said:
"The land and the hotel building thereon have been used, inter alia, for the purpose of advertising by means of a sky-sign, and they do not cease to be so used by reason only of some change in the format of the sign."
(Page 17)
47 See also Lederer v Sydney City Council (2001) 119 LGERA 350 at [124]: "The applicants are therefore entitled to carry out development in accordance with [the 1983] consent …".
48 Drawing these various threads together the Tribunal concludes as follows.
49 An approval under CPS 5 for "various signage" in the terms referred to (including recognition of an existing approval), properly interpreted in accordance with the principles set out above, prima facie includes the land use, the format of the structure (including, if necessary, any lighting) upon which a sign is erected and anything relevant to the sign itself (including its advertising status), but not necessarily the particular message or advertisement. Of course, it may be possible to regulate such matters by way of planning approval, but that was not attempted here on a true construction of the 2003 approval instrument.
50 Clause 5.10(c) of CPS 5 deals with extant approvals in the context of a discretion where roof signs are otherwise prohibited. Such a provision will attract well established principles of interpretation. In Lederer v Sydney City Council (2001) 119 LGERA 350 the Court drew attention to these saying, at [97] - [98]:
"The recent decision of the Court of Appeal in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440 set out the principles applicable when construing the scope of what is permitted by an historical consent …
Mason P stated that because an 'extant development consent' was a 'species of existing use right', the same liberal principles should be observed in its construction. (at 596-598; 449-450). The fact that a development consent operates in rem and indefinitely in respect of a parcel of land should also be born [sic] in mind (at 508-509; 450):
'The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a land owner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.' "
(Page 18)
- in further light of a clear distinction between a regulatory licensing regime and planning approval; and when "read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose", suggests that at the very least the City was giving its further planning approval to an extant advertising sign. Alternatively, it was confirming the same.
52 If the Tribunal is wrong in making such characterisations then the City nevertheless granted planning approval in terms of an advertising sign which approval is still in force today and which covers the existing sign. Thus, further consideration by the City in 2006 could not relevantly alter, impair or detract from that earlier approval: see Bakker and City of Nedlands [2005] WASAT 106 at [42] - [45]. Further, the 2006 decision would not be the correct and preferable decision as it offends a principle broadly reflected in the analogous remark of Jacobs J in Samels v Victor Harbor District Council(1988) 67 LGRA 37, at page 50: "[I]t is in my opinion quite unsatisfactory to maintain in operation two planning consents which are inconsistent with each other in quite critical respects."
53 Whichever characterisation or approach is adopted the result is the same: the applicant has a continuing right to erect and display the advertising sign in question.
Conclusions of the Tribunal on the 2006 decision
54 The 2006 application to the City was unnecessary. The 2006 application appears to have been based upon a false premise connected with either a change in the design of the sign - itself not a material change in design or signage in any event - or the relocation of the applicant to nearby premises, or both. The City could not, as a matter of law, seek to materially alter the 2003 approval. The 2006 decision under review should not be regarded as valid and could not, in any event, do more than, in effect, confirm the 2003 approval.
55 The correct and preferable decision is to set aside the decision under review and to substitute for that decision a decision that in effect acknowledges the rights granted to the applicant in 2003.
Orders
1. The application for review is allowed.
2. The decision under review is set aside.
(Page 19)
- 3. In substitution for the decision under review there will be a decision that planning approval is not required for the subject sign because of the existence of an extant approval in respect of the advertising proposed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
22
5
5