HUNGRY JACK'S PTY LTD and SHIRE OF MUNDARING
[2005] WASAT 226
•25 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: HUNGRY JACK'S PTY LTD and SHIRE OF MUNDARING [2005] WASAT 226
MEMBER: MR J ADDERLEY (SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 AUGUST 2005
FILE NO/S: DR 354 of 2005
BETWEEN: HUNGRY JACK'S PTY LTD
Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Advertising sign - Town Planning Scheme - Control of Advertisements - Superfluous signage - Visual clutter
Legislation:
Shire of Mundaring District Town Planning Scheme No 3
Town Planning And Development Act 1928 (WA)
Result:
Application upheld
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Selfrepresented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Shire of Mundaring (the respondent) refused an application to erect an illuminated wall sign associated with a Hungry Jack's restaurant at Lot 52 Great Eastern Highway, Mundaring on grounds that it contravened objectives for the control of advertising contained in its District Town Planning Scheme.
The applicant sought a review of the Shire's decision on grounds that the proposed sign was crucial to its advertising needs and was otherwise compliant with the objectives of the Town Planning Scheme.
The respondent argued that the sign was superfluous and would contribute to visual clutter detrimental to the architectural character of the building and the town centre.
The Tribunal concluded from the evidence before it and with particular regard to plans illustrating the physical configuration of the building, that the sign would have specific purpose, would not be superfluous and would not contribute unreasonably to visual clutter of the building or to its surrounds.
The proposed sign would accordingly conform with the objectives of the Town Planning Scheme.
The Tribunal upholds the application for review of the Shire's decision, which is consequently set aside and the application for the proposed illuminated wall sign is approved.
Introduction
This is an application for review of the decision of the Shire of Mundaring to refuse approval of an application for planning consent for a proposed illuminated wall sign associated with a Hungry Jack's restaurant at Lot 52 Great Eastern Highway, Mundaring.
Application for the sign, subject of this appeal, as well as a suite of other signage associated with the development of the Hungry Jack's restaurant, was made by Peter D Webb and Associates to the Shire of Mundaring on 28 February 2004.
The application for the proposed illuminated wall sign was refused approval by the Council of the Shire of Mundaring at its meeting held on 25 January 2005 and notice of the refusal was issued to the applicant on 4 February 2005.
The applicant has appealed against the decision of the Shire of Mundaring to refuse approval of the illuminated wall sign by lodgement of an application to the State Administrative Tribunal on 25 February 2005 seeking review of the Shire's decision.
The Proposal
The proposal seeks approval to erect an illuminated wall sign, located at about adult eye level, in an alcove adjacent to and at right angles to the restaurant entrance. The sign would be located under a verandah sheltering the entrance and would face generally northwards. The sign would measure 1250 millimetres width, 1220 millimetres height and project 80 millimetres forward of the wall upon which it is to be mounted.
The sign would be inscribed "Hungry Jack's" and illustrate the corporate identity of the company associated with the restaurant development on Lot 52 Great Eastern Highway, Mundaring.
Town Planning Scheme Provisions
The control of advertising signs within the Shire of Mundaring is effected under the Shire's District Town Planning Scheme No 3 (TPS 3).
Division 3 – Control of Advertisements, provides at s 5.7 of TPS 3 for the following objectives to guide the Council in its determination of applications for approval of advertisements:
"(a)ensure that the visual quality and character of particular localities and transport corridors are not eroded;
(b)achieve advertising signs that are not misleading or dangerous to vehicular or pedestrian traffic;
(c)minimise the total area and impact of outdoor advertising commensurate with the realistic needs of commerce for such advertising;
(d)prohibit outdoor advertising which is considered to be superfluous or unnecessary by virtue of their colours, height, prominence, visual impact, size, relevance to the premises on which they are located, number and content;
(e)reduce and minimise clutter;
(f)promote a high standard of design and presentation in outdoor advertising; and
(g)to ensure that the objectives set out in this Scheme for the zone where an advertisement is provided are not compromised."
With respect to s 5.7(g), the premises in question Lot 52 Great Eastern Highway Mundaring, is located in the Business District zone.
The objectives of the Business District zone are set out at s 3.1(3) of TPS 3. The relevant objective in relation to the control of advertising is identified as:
"(c)to ensure that buildings, ancillary structures and advertising are of high quality and achieve an architectural theme contributing to a townscape unique to the District."
Shire's Refusal
The Shire of Mundaring refused the application for the proposed advertisement for the following reasons:
"(1)Non compliance with the objectives of the District Business zone in Town Planning Scheme No 3.
(2)Non compliance with the objectives of the Control of Advertisements in Town Planning Scheme No 3."
Applicant's Argument
The applicant's principal argument is set out in the witness statement of Mr John Royle, an architect employed by Oldfield Knott Architects Pty Ltd (OKA). The witness statement is identified as exhibit 1.
Mr Royle states that the design of the Hungry Jack's restaurant was substantially modified from the standard model, generally familiar to the public, at the request of the Shire to the extent that "signage associated with the facility has become an even more crucial part of it".
The applicant also agreed to the Shire's request to modify standard signage associated with the site including modification of the standard pylon sign, reduction in the number of roof mounted signs from three to two and reduction of neon "halo" illumination of the building usually provided on all four sides to just two.
The proposed wall sign is a standard "badge" presenting the Hungry Jack's corporate image immediately adjacent to the main entrance of the restaurant.
The sign is not superfluous having regard to its proposed location and the circumstance that it will be limited in its visibility when viewed from beyond the boundaries of the site.
Respondent's Argument
The respondent's argument is set out in the witness statement of Mr Warwick Carter, Senior Planning Officer employed by the Shire of Mundaring. Mr Carter's witness statement is identified as exhibit 2.
Mr Carter reiterates that the proposed sign is contrary to the objectives for advertising specified in s 5.7 and its reference to cl 3.1(3) of TPS 3 for the following reasons:
•Existing approved advertising covers the site in such a way that the premises is clearly identified from all directions as a Hungry Jack's store. The proposed sign is therefore superfluous.
•The existing signage locations and colours have contributed to the architectural theme of the area, but the additional sign as proposed would detract from the amenity of the area and spoil the aesthetics that the building enjoys.
•Because the proposed sign is excessive to commercial signage requirements it will also contribute to visual clutter and detract from the appearance of the building, which in turn represents an element of the "village" architectural theme of the town centre.
•Comparison with other Hungry Jack's stores indicates that the existing approved signage meets all the standard advertising features seen on the company's premises throughout the state. Only two of six other stores visited displayed a sign similar to the proposed sign subject of this application.
The Shire of Mundaring further argues in supplementary correspondence received by the Tribunal on 22 August 2005:
•That it interprets from the respondent's evidence, that the only purpose for the sign is that it is required to satisfy a third party agreement between the franchisee and franchiser, and that the sign has nothing to do with exposure to the public.
•That as the proposed sign is to be illuminated, it will be even more visible from the road.
Analysis
The measure of this matter lies in the Objectives for Advertising of the Town Planning Scheme set out at s 5.7 and its reference to the District Business zone objectives at cl 3.1(3).
The applicant did not seek to challenge or question the applicability of the Scheme provisions.
The applicant's argument relied essentially on the proposition that the wall sign by virtue of its function to promote corporate identity to customers in the vicinity of the store entrance is not superfluous to advertising needs.
Whilst the applicant sought to argue that the agreement with the Shire to reduce the number and/or modify other signs associated with the premises was a ground for approval of the proposed wall sign, the Tribunal is not persuaded that a numbers trade off argument represents a sound town planning logic.
Of greater persuasion is an argument the sign may be justifiable because the physical form of the building demonstrates that the entrance of the store is recessed quite substantially beneath the projected roof line. The location of the proposed sign adjacent to the entrance would be similarly recessed into a quite secluded position. This localised entrance environment would appear not to be so well covered by promotional signage as other environments in the car park, drive through and adjoining roadways. As such, the proposed sign could be argued as having legitimate purpose and not be considered superfluous in the context of s 5.7(d) of TPS 3.
The respondents argument to deny approval of the proposed wall sign rested principally on the proposition that the sign was indeed superfluous because the premises was already sufficiently provided with signage which adequately identified and promoted the business. Although the Tribunal would accept that the presently approved existing signage is sufficient for the purposes of promotion to the wider surrounds of the premises, the respondents argument doesn't address the question of the possible validity of the proposed sign in relation to the localised, somewhat secluded environment under the roof line adjacent to the store entrance.
The respondent's suggestion that the proposed sign has no purpose in terms of advertising because it is solely a function of a third party agreement between franchisee and franchiser is a speculation on motive that the Tribunal is not required to enter into. It is not, in the end, material to consideration of the application for the advertising sign as measured against the relevant TPS 3 advertising control provisions.
The respondent also argues that the proposed sign would detract from the amenity of the area and spoil the aesthetics that the building enjoys. This argument is not substantiated other than in terms of offering an opinion that it would result in "excessive commercial signage and clutter".
The Tribunal is faced with a set of circumstances where neither the applicant or the respondent has been able to present entirely persuasive evidence to support or deny the application. For the reasons set out in paragraph 24, the Tribunal is inclined to favour the argument that the proposed sign is not superfluous. This argument is assisted by reference to the photographs of the premises at Attachment A of the respondent's witness statement which illustrate well the low profile, sheltered recess of the store entrance and the otherwise high level roof and pylon signage directed to street passers by rather than an audience in the environs of the store entrance.
Again with reference to the photographs at Attachment A, it is difficult to be convinced that the addition of the proposed wall sign at a low level on the premises located in an alcove under the roof line adjacent the store entrance would result in an undesirable visual clutter. Even though the sign will be illuminated at night it is unlikely to present any more of a visual clutter effect than would be manifested by the presumably well lit store entrance and windows to the restaurant dining areas. In summary therefore it is the Tribunal's view that the signage proposed is sufficiently differentiated from the other signage on the premises in terms of physical location, purpose and intended audience to justify its acceptability.
Conclusion
Based on the reasoning set out in the analysis above, to the effect that the proposed sign is neither superfluous nor a contributor to visual clutter detrimental to the townscape of the area, the application for review of the Shire's decision to refuse the proposed advertisement is upheld.
Orders
The decision by the Shire of Mundaring to refuse the proposed advertisement as referred to in paragraph 3 and paragraph 11 of these Reasons is set aside.
The application for the proposed advertisement, being an illuminated wall sign as described at paragraph 5 and paragraph 6 of these Reasons and as originally applied for to the Shire of Mundaring on 28 February 2004 is approved.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SESSIONAL MEMBER
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