Jensen Bowers Group Consultants Pty Ltd & Gold Coast City Council
[2011] QPEC 49
•31 March 2011
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: Jensen Bowers Group Consultants Pty Ltd & Gold Coast City Council [2011] QPEC 49 PARTIES: JENSEN BOWERS GROUP CONSULTANTS PTY LTD Appellant
&
GOLD COAST CITY COUNCIL
RespondentFILE NO: No. 2374 of 2008 PROCEEDING: Appeal DELIVERED ON: 31 March 2011 DELIVERED AT: Southport HEARING DATES: 8, 9 December 2010 and 14 February 2011, Southport JUDGE: Judge C.F. Wall Q.C. ORDER: Appeal dismissed. CATCHWORDS: Planning & Environment - Planning Scheme - advertising device - 'super-sized' billboard - application to erect sign in Tourist and Residential Domain and Residential Precinct of Broadbeach Local Area Plan - Advertising Devices Specific Development Code - Tourist and Residential Domain Place Code - amendments to Planning Scheme since application was made - relevant considerations - local area/environment/locality/streetscape. LEGISLATION: Integrated Planning Act
Sustainable Planning Act, Section 819,CASES: Edwards & Alexander v Gold Coast City Council & Anor [2005] QPELR 226 at 229, para [9] CON COUNSEL: M A Williamson – for the Appellant
A M S Skoien - for the RespondentSOLICITORS: Norton Rose Australia - for the Appellant
McDonald Balanda & Associates - for the Respondent
The appeal
[1] On 4 August 2008 the respondent refused the appellant's code assessable application for development approval to erect a billboard advertising sign at 2595 Gold Coast Highway, Mermaid Beach (the subject site). The appellant appeals against that decision.
[2] The application was assessed under planning scheme provisions applicable at the time - Version 1.1. Since then Version 1.2 has come into force (as from 11 May 2009). The appeal is to be dealt with under the Integrated Planning Act (see s.819, Sustainable Planning Act) and the onus of proof is on the appellant.
[3] The sign (described in the advertising industry as 'super-sized', see ex 11, para 1.3.5) is presently located on the western side of the highway in the Fringe Business Domain (see photos 1 & 2, ex 10 and Figs F1, F5, F9, F15, ex 5).
[4] The subject site is occupied by the Tropicana Motel and is on the corner of the highway and Mermaid Avenue. It is in the Tourist and Residential Domain and by Version 1.2, is now included in Precinct 2 (Residential) of the Broadbeach Local Area Plan (BLAP).
[5] The sign is double sided, 12.66 x 3.35 metres and about 12 metres high with the lowest horizontal section being about 8 metres above ground level. Each face of the sign is 42.5m². It is proposed to be located as shown in the photos JS-4 and JS-5, ex 7, No's 4 & 5, ex 10, and Figs C2, C3, C8, C9, ex 5. It will be set back about 3.5 metres from each of the site's western and southern boundaries. It will be cantilevered over the motel roof and be illuminated at night. See pg 30, ex 5. It is not intended that the sign advertise the business of the Tropicana Motel.
[6] Going south on the eastern side of the highway the BLAP includes properties fronting the highway from Elizabeth Avenue to Mermaid Avenue in Precinct 3 (Highway Tourism). From Mermaid Avenue to Peerless Avenue the properties including the subject site are in Precinct 2 (Residential). Half way between Mermaid Avenue and Peerless Avenue the domain changes from Tourist and Residential to Residential Choice. The BLAP does not extend south of Peerless Avenue. There is another land use change at Peerless Avenue. Land on the eastern side of the highway south of Peerless Avenue is in the Local Business Domain consisting of commercial and residential development. A large billboard is located above one of the buildings on the eastern side of the highway just south of Peerless Avenue and is shown in the various photographs.
[7] I agree with Mr Carl Knaggs, the appellant's town planner, para 4.2.4, ex 4 that:
"…the BLAP where the subject site is located is within 100m of 4 separate precinct areas as well as the Local Business Domain to the south. The subject site is located at the confluence of a number of distinctive land use intents and character areas."
[8] There is also the Residential Choice Domain between the subject site and Peerless Avenue and the Fringe Business Domain on the western side of the highway.
[9] The properties on the same side of the highway and south of the subject site are residential in character. In this order there are three properties between the subject site and Peerless Avenue - Browns of Broadbeach Motel, Joslyn Court units and Broadshore Motel (see for example p 34, ex 5). Joslyn Court and Broadshore Motel are in the Residential Choice domain.
It is not without significance that the two super-sized billboards in the area (the one on the western side of the highway - which is proposed to be re-located on the subject site - and the one just south of Peerless Avenue) are located in business domains and not areas with a residential, albeit commercial residential, character.
Planning Scheme Provisions
Advertising Devices Specific Development Code (ADC) (Version 1.1)
The following are relevant parts of the code:
"1.0 PURPOSE
The purpose of this code is to ensure that the provision of Advertising Devices (or signs) within the City caters for the functional advertising requirements of business, while ensuring that the built form and the natural attributes of the City are not compromised. The aesthetic appeal of the City should also be maintained.
This code seeks to ensure that Advertising Devices are treated as an essential component of commercial development and that they are properly considered at the design stage of any project. As a City that derives a significant part of its income from tourism, there is an especially strong need to ensure that all signage is well presented, aesthetically pleasing and complementary to the character and built form of the City.
The following development outcomes are promoted by this code:
·signage that adequately caters for the needs of business, by clearly identifying the goods and/or services which are supplied to the public;
·signage that complements the design of the buildings on which it is located and is consistent with the type of development in the vicinity;
·signage that complements the local streetscape of its locality and presents a visually attractive appearance to public areas;
·signage that does not unreasonably impact on the access to views, sunlight or breezes for residents on adjoining sites or create nuisance as a result of noisy, flashing or illuminated devices;
·
·signage that reflects the character of specific areas of the City, particularly areas with a predominant historical character or notable urban design theme.
·
·
3.0 LAND USE CATEGORIES
Under this code, the City is divided into four different land use and development categories for the application of differing signage standards. The four categories are identified as follows:
3.1 Non-Urban Areas
These incorporate land located in the following Planning Scheme Domains:· Rural;
· Park Living;
· Conservation;
· Private Open Space;
· Public Open Space;
· Extractive Industry;
· Emerging Communities; and
· any land subject to a LAP where the precinct in which the land sits most closely reflects any of the above mentioned domains.
3.2 Suburban Areas
These incorporate land located in the following domains:
· Village;
· Detached Dwelling;
· Residential Choice;
· Community Purposes; and
· any land subject to a LAP where the precinct in which the land sits most closely reflects any of the above mentioned domains.
3.3 Industry Areas
These incorporate land Located in the following domains:
· Fringe Business;
· Industry 1 (High Impact);
· Industry 2 (Low Impact);
· Marine Industry; and
· any land subject to a LAP where the precinct in which the land sits most closely reflects any of the above mentioned domains.
3.4 Business and Tourism Areas
These incorporate land located in the following domains:
· Integrated Business
· Local Business
· Tourist and Residential; and
· any land subject to a LAP where the precinct in which the land sits most closely reflects any of the above mentioned domains.
Note:Performance Criteria PC1-PC34 apply to all code and impact assessable development subject to this code. For self assessable development that is subject to this code, only the Acceptable Solutions to Performance Criteria PC1-PC21 apply.
4.DEVELOPMENT REQUIREMENTS
PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS DEVELOPMENT THAT IS SELF ASSESSABLE, CODE ASSESSABLE, OR IMPACT ASSESSABLE TOTAL AREA OF SIGNAGE PER SITE PC1
The total area of advertising signs, on or near an individual site, must be consistent with the purpose for which the land or building is used, and must be complementary to the character of the local area. (This total area of advertising signs includes the area of any signage relating to the business located on the abutting street or pavement.)
_______________________________
FREESTANDING ADVERTISING SIGNS
_______________________________PC27
A sign with a freestanding display surface where the width of the sign is greater than its height is known as a Billboard Sign. This incorporates the freestanding structure upon which the sign is located and any lighting equipment used to illuminate the sign. The Billboard Sign must be designed and located to complement and not dominate the environment in which the sign is located.
AS1.4
The total area of all advertising signs per site in business and tourism areas does not exceed 15m2 or every 10 metres of site frontage.
AS1.5
The total face area of a single advertising sign in either industry or business and tourism areas does not exceed 40m2.
____________________________
____________________________
AS27.1
Billboard Signs are not located in non-urban and suburban areas.
AS27.2
In industry and business and tourism areas, Billboard Signs are located at the front of the properties they are promoting.
AS27.3
Billboard Signs are no higher than the height of existing adjoining buildings and, in all situations, do not exceed ten metres in height.
AS27.4
Billboard Signs are located at least 800 metres from any other existing or approved Billboard Signs.
AS27.5
The area of a Billboard Sign does not exceed 40m2 per face, and the angle between faces does not exceed 45 degrees.AS27.6
Billboard Signs incorporate landscaped areas consisting of ground covers and shrubs to reduce the visual impact of any supporting structure.
Supporting structures are painted so as to complement the visual backdrop of the structure.
Advertising Devices Specific Development Code (Version 1.2)
Generally sec.1.0 of Version 1.2 is the same as Version 1.1. I have highlighted here the differences:
"1.0 Purpose
The purpose of this code is to ensure that the provision of Advertising Devices (or signs), within the city, allows for the functional advertising requirements of business to be catered for, while ensuring that the built form and the natural attributes of the city are not compromised. The aesthetic appeal of the city should also be maintained.
This code seeks to ensure that Advertising Devices are treated as an essential component of commercial development and that they are properly considered at the design stage of any project As a city that derives a significant part of its income from tourism there is an especially strong need to ensure that all signage is well presented, aesthetically pleasing and complementary to the character and built form of the city.
The following development outcomes are promoted by this code:
(a) Signage that adequately caters for the needs of business, to clearly identify the goods and/ or services which are supplied to the public;
(b) Signage that complements integratesand with the design of the buildings on which it is located and is consistent with the type of development in the vicinity;
(c) Signage that complements the local streetscape of its locality and presents a visually attractive appearance to public areas;
(e) Signage that does not unreasonably impact on the access to views, sunlight or breezes for residents on adjoining sites or create nuisance as a result of noisy, flashing or illuminated devices;
(f) Signage that reflects the character of specific areas of the city, particularly areas with a predominant historical character or notable urban design theme;
With an unimportant exception Section 3.0 is identical with Version 1.1.
PC1 and AS1.4 and 1.5 are a little different and are as follows:
PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS DEVELOPMENT THAT IS SELF ASSESSABLE, CODE ASSESSABLE, OR IMPACT ASSESSABLE TOTAL AREA OF SIGNAGE PER SITE PC1
The total area of advertising signs, on or near an individual site is to be consistent with the purpose for which the land or building is used and must be complementary to the character of the local area.AS1.3
The total area of all advertising signs per site in business and tourism industry areas does not exceed 1 m2 for every 1 metre of single street frontage.
AS1.4In either industry or in business and tourism areas the maximum total single face area of any sign does not exceed 40m².
PC26 and AS 26 deal with billboard signs and are in the following terms which are a little different to PC/AS 27 of Version 1.1:
PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS DEVELOPMENT THAT IS SELF ASSESSABLE, CODE ASSESSABLE, OR IMPACT ASSESSABLE BILLBOARD SIGNS PC26
The billboard sign must be designed and located to complement and not dominate the environment in which the sign is located.
Note: A Billboard Sign is an advertising device with a freestanding display surface where the width of the sign is greater than its height. This incorporates the freestanding structure upon which the sign is located, and any lighting equipment used to illuminate the sign.AS26.1
The Billboard sign is perpendicular to the abutting road.
AS26.2
The Billboard Sign is of a shape, design and colour that is consistent with existing adjacent structures and streetscape design.
AS26.3
The Billboard Sign is located as close to the centre of the site frontage as is practicable.
AS26.4
The number of faces per Billboard Sign is no more than two.
AS26.5
The angle of a V shaped billboard sign is no greater than 45°.
AS26.6
The sign is internally illuminated.
AS26.7
The Sign has a maximum singly face area of 18m² (excluding Third Party Advertising Sign).
AS26.8
The face length of the sign is greater than its face height.
Version 1.2 does not include the diagrams which are in Version 1.1 and significantly, where Version 1.1, AS 27.1 stated
"Billboard Signs are not located in non-urban and suburban areas"
Version 1.2 seems to place no similar restriction on the areas in which a billboard sign may be located. Under Version 1.1 it would not have been an acceptable solution to locate the sign here between Browns Motel and Peerless Avenue because that area is in the Residential Choice Domain which is included in the Suburban Land use area.
Land Use Themes (Part 3, Chapter 14 Planning Scheme (both versions))
The Residential/Tourism - Pacific Coast Land Use Theme
"acknowledges the diversity of residential and tourism development along the Pacific Coast. It is located predominantly on the eastern side of the highway from Coolangatta to Labrador and recognises the need for both permanent residential accommodation and tourist accommodation together with other related services and facilities. The Surfers Paradise and Broadbeach areas are more strongly oriented towards tourism."
In recognition of the supporting services and related facilities required in this Land Use Theme
"low intensity commercial development may be considered appropriate, provided that a predominant residential/tourism character is retained. More intensive retail or commercial development is not supported…."
Tourist & Residential Domain (both versions)
The intent of this domain is described as follows in s.1.0:
"1.0 Intent
The purpose of this domain is to provide for the combination of tourist accommodation and permanent residential activity in those coastal parts of the City that have good access to transport and services. It is intended to concentrate tourist accommodation in the coastal areas of the City, while retaining opportunity for long term residential activity in the same locations. This domain seeks to promote residential development with strong amenity values in this part of the City, and to concentrate high quality tourist resorts and hotels in major clusters along the coast. Key objectives include:
·promoting a distinctive and vibrant urban environment that is attractive to both tourists and residents;
·enhancing the existing built form character of the coastal strip;
·recognising and reflecting the individual character of the various tourism clusters and residential neighbourhoods along the coast strip;
·providing for the establishment and expansion of tourist services and tourist support activities, including entertainment and recreation establishments in the major tourist areas; and
·ensuring that sufficient residential and community facilities are provided to meet local demand from permanent residents."
The "coastal strip" is that area between the beach and the highway.
Placing an advertising device of the present type is a code assessable development (Operational Work) in this domain (sec 3.0D) and the ADC is the applicable code for the operational work (sec 4.4). The definition of advertising device in Part 4 of the Planning Scheme (both versions) also states that for the purposes of the Planning Scheme an advertising device is considered to be Operational Work.
The Tourist and Residential Domain Place Code seeks to ensure that new development "contributes to the amenity of the local area and compliments the scale and design of adjoining properties" (sec 5.1).
Development Requirements for Advertising Devices are expressed as follows in sec 5.3 of the Tourist and Residential Domain Place Code:
PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS ADVERTISING DEVICES PC11
All signage must be complementary to the design and style of the buildings on the site on which it is located and to signs and development on adjoining sites. All advertising devices must be designed and constructed to complement the local character of the area.AS11.2
Freestanding signs complement the design of the buildings to which they relate, do not dominate the streetscape of a locality, are compatible with signage on adjoining sites, and clearly identify the product or business being promoted.
A billboard such as is proposed here is a "freestanding sign".
It does not follow that merely because a particular proposal appears to be inconsistent with suggested acceptable solutions to particular performance criteria it must be rejected. It may though indicate the extent to which the proposal may be incompatible with the desired intent and purpose of the code and relevant development requirements.
Broadbeach Local Area Plan (BLAP)
The purpose of LAP's is
"to advise that parts of the City are divided into special planning units, with unique characteristics, for the purposes of land use and development… (and) the LAP's provide for the distribution, mixing and segregation of different types of development. Each LAP is intended to provide for compatible development within different parts of the City and to segregate incompatible development."
(Planning Scheme Part 6, Div 1, Chap 1).
A LAP may include more than one domain.
The BLAP is shown on page 92, ex 11 and the domain map (Surfers Paradise 21) which includes the subject site is at page 91.
The nine precincts in the BLAP
"have distinctive characteristics, and are a reflection of existing land use patterns in the preferred future development pattern. Accordingly, the planning requirements within each precinct vary." (Sec 5.0)
As I mentioned earlier land on the eastern side of the highway extending south from Elizabeth Avenue to Mermaid Avenue is in Precinct 3 (Highway Tourism) and land from Mermaid Avenue to Peerless Avenue is in Precinct 2 (Residential). In Version 1.1 this precinct was Residential/Low Impact Tourism.
Precinct 2 is
"intended to cater for medium to high density permanent residential land uses, low impact tourist residential uses and a range of low intensity retail and commercial uses to meet the needs of the immediate residential catchments. Tourism uses must be of a scale and type that do not adversely impact on the residential amenity of permanent residents in the immediate area. Intensive tourist facilities are not considered to be suitable in this Precinct."
Precinct 3 is
"intended to be developed for tourism purposes and ancillary facilities that do not compromise existing residential amenity.
The southern extent of this precinct, located between Elizabeth and Mermaid Avenues comprises two inherently different character areas. Development fronting onto Surf Parade is intended to be residential in character, whilst development fronting onto the highway will be commercial in nature, incorporating tourist accommodation and complementary services such as cafes, bars, and entertainment facilities.
A high standard of landscape amenity, urban design and architecture is encouraged in this precinct along the Gold Coast Highway frontage.
Commercial uses, such as major office or retail developments, are not considered appropriate within this precinct as such uses are clearly intended to be developed within the Central Mixed Use Precinct."
The ADC applies to placing an advertising device on premises in the BLAP that is code assessable (BLAP, sec 7.4).
The amendments to the Planning Scheme since the present application was made have been in force since 11 May 2009 and they should not be ignored. On the contrary I think they should be accorded considerable weight. See for example Edwards & Alexander v Gold Coast City Council & Anor [2005] QPELR 226 at 228 para [9] and the decisions there cited. I think the application should be decided by reference to the Planning Scheme as it now is rather than as it was. The result is a Planning Scheme with an ADC which is less prescriptive than Version 1.1 and a LAP which now includes the subject site in the Residential precinct.
Discussion
Notwithstanding the location of the subject site as described in paras [7] and [8] hereof and the present signs advertising the motel businesses, a large billboard sign such as the appellant desires to place on the site would introduce a quite new and different commercial aspect to the subject area on the eastern side of the highway north of Peerless Avenue.
In my view the application conflicts with the planning scheme in a number of respects. The inclusion now of the subject site in the BLAP (Residential precinct) reinforces the correctness of the respondent's decision. There are also, in my view, no grounds to warrant approval of the application despite the conflicts.
Where the subject site is located as described in paras [7] and [8], the relevant locality and environment is likely to extend beyond domain and precinct boundaries requiring the proposal to be assessed against that broader background at the same time recognising that the site is located within a particular domain and precinct with specific domain and precinct characteristics and development requirements.
Witnesses endeavoured to characterise the local area, the environment and the local streetscape in which the site is located.
Greg O'Brien, the appellant's visual impact expert (ex 5), considered the highway itself dictates and dominates the character and amenity and visual amenity of the area and that includes both sides of the highway south of Peerless Avenue (see Fig B3, p34, ex 5). In this part of the highway there is, he said, a dominance of signage more than elsewhere on the highway. The immediate local area of the site is, he said, greatly affected by the backdrop of signage that occurs south of Peerless Avenue (T1-33). The domains and precincts are, he said, more relevant to character where properties are not in direct visual contact with the highway (T1-32, 33). Looked at this way the sign would not be out of place on the subject site. He said the sign would have the same impact located on the subject site as it presently does on the other side of the road. I am unable to agree. In my view it would look quite out of place over the motel even allowing for the southern signage background. He said that if domain boundaries were as important as the respondent suggests he would have expected different levels of assessment for advertising devices in different areas rather than the same (T1-43). I consider Mr O'Brien glossed over the fact that notwithstanding the broader background, assessment in each domain area is to have regard to factors specifically applying to that area and to that extent assessment may very well involve a narrowing of those broader aspects of locality and environment which he emphasised.
Mr Simpson was prepared to concede that for present purposes the local area includes the subject site, the other side of the highway and the area south of Peerless Avenue (areas adjacent to the highway, see T2-74). He agreed that the character of the area is mixed in terms of commercial development, tourist residential development and the highway itself (a significant part of the character and an enormous activity generator in the area) and has a mixture of advertising devices including the existing billboard and the one south of Peerless Avenue (T2-75, 79)).
Mr Venn, the respondent's town planning expert (ex 11) gave evidence similar to Mr Simpson. He agreed (T3-9)
"that the highway is a significant feature… but that doesn't detract from the fact that they are residential environments, possibly of a lesser level of amenity than other areas… but nevertheless there is a residential enclave there and that is the character of that area adjacent to the highway…(and) the introduction of this billboard (on the subject site) is inconsistent with the character desired by the planning scheme."
He also said (T3-11) that the BLAP (including the subject site in the Residential precinct) reinforces the residential amenity of the area.
Mr Knaggs' local area -
"probably the realm of impact that the sign could possibly have… wherever you may be able to view the sign… approximately 150 metres each way" (T2-15, 22) -
is in my opinion too broad and ignores what is on the ground and the different domains in the area. He said (T2-23) there is a distinction between the uses and activities on the sites between Alexandra Avenue and Peerless Avenue on the eastern side of the highway but not between the character and the built form on those sites. He placed too much emphasis on this latter aspect in my view and not enough on the former.
He also conceded (T2-23, 24) that this sign on the subject site would to some extent drag the commercial character north of Peerless Avenue and from the western to the eastern side of the highway but said the negative impact of this would only be "marginal". In my view the impact would be much more than marginal.
He seemed to say that any commercial uses in this area would be alright regardless of domain and precinct consideration because they would be located on the highway and that would be the most appropriate location for them. If that's what he meant I am unable to agree. I am also unable to agree with his evidence (T2-32-42) that whilst the sign will have an impact on the area it would not be significant.
With respect I thought his approach, exemplified by the following passages from his evidence explaining why the sign would be acceptable under the ADC (T2-30, 33, 37) was too simplistic:
"Well, the character of the area itself… is that it's on the highway, it's adjacent to the other commercial areas and the subject site has commercial uses on it along with commercial advertising… It's a commercial type activity or a commercial type use"
and because the site is
"commercial residential rather than straight residential the proposal is consistent with that use of the site".
He conceded (T2-39) that it would be very difficult for the sign to complement the adjoining building but because the sites were commercial along with the sign that is sufficient. In my view it is not. Likewise I cannot agree with his evidence (T2-43) that "the subject proposal could fairly, be described as low intensity commercial development" not inappropriate for the area.
In terms of the ADC Mr Venn considered that the billboard would bear no relationship to the existing adjacent structure or streetscape design even allowing for the broader background. The sign would not he said, complement, but would dominate the local environment or area (that area from Alexandra Avenue to Peerless Avenue, on the eastern side of the highway - T3-33, 34) and the motel building itself (ex 11, p 33, 34, T3-21, 26, 27); it would be inconsistent with AS26.2 In terms of local environment/area the two sides of the highway are not homogenous (T3-34); they "have a different character" (T3-35) and there is also a different commercial character south of Peerless Avenue (T3-35). I agree with Mr Venn. His opinions accord with my own and are consistent with those of Mr Simpson whose evidence I accept. Mr Venn also said that a sign of this size 150m north of the other billboard "would lead to streetscape clutter and an overall effect that was not in keeping with the urban framework" (T-3-25, 26). He also said that the BLAP intensifies residential use in this area (ex 11, p25 and T3-31) and that is clearly so.
I prefer the opinions of Mr Simpson and Mr Venn to those of Mr O'Brien and Mr Knaggs because I thought the former better appreciated the need to consider domain and precinct issues in the context of the background tapestry. The latter placed too much emphasis on the broader background considerations at the expense of relevant ADC and domain and precinct factors. Also the evidence of Mr O'Brien and Mr Knaggs (referred to later) that the sign would complement the motel building did nothing to inspire confidence in their other opinions.
Each domain has a different character and that is so regardless of the highway. There is probably not much difference between Mr Simpson's evidence that "the highway is a significant traffic distributor" (T2-55, 56), Mr Venn's that "it is a significant feature" (T3-9), "a divider, probably an area in itself" (T3-34), "an infrastructure corridor" (T3-35), Mr O'Brien's that "it is a feature dominating the area" and Mr Knaggs that it is "the dominant feature of the local area" (T2-16), "a boulevard" (T2-24, 41, 42). Mr Venn said though that this characteristic doesn't necessarily flow onto properties fronting the highway (T3-35, 36). He said Peerless Avenue was also a divider (T2-34). The main difference, I consider, is that Mr O'Brien and Mr Knaggs over-emphasised the broader background, glossed over relevant ADC provisions and under-emphasised the relevant domain and precinct considerations and the "residential enclave" as described by Mr Venn.
In my view Mr Simpson (T2-56) is correct in saying that from a domain point of view there is a character distinction on each side of the highway in this area and on the eastern side of the highway north and south of Peerless Avenue and that is so taking into account the broader background. That background includes what appears to be a more intensive degree of signage south of Peerless Avenue than exists between Mermaid Avenue and Peerless Avenue on the eastern side of the highway. (See the photos on pages 42, 49, 51 (Fig F1), 52 (Fig F4 beyond the subject site), 54, 56 and 60 (Fig F17), ex 5). In other words the signs get bigger and there seems to be more of them south of Peerless Avenue than between Mermaid Avenue and Peerless Avenue.
I also agree with Mr Simpson (ex 10, para 2.19) that there is a distinct and intended (and perhaps subtle) change of character between Mermaid Avenue and Peerless Avenue on the eastern side of the highway and noticeably between that side and the "commercial" or Fringe Business area on the western side. There is a further change south of Peerless Avenue on the eastern side. The proposed sign on the subject site would compromise the eastern area between Mermaid Avenue and Peerless Avenue; would severely affect and detrimentally interrupt the texture, character and scale of the area and "would dominate not only the building but (also) the pedestrian and vehicular experience travelling in each direction" and in this way, the environment (T2-56). I agree. Reference need only be made to the photos in his report. The sign would dominate and not complement the area; it would not fit in.
Mr Simpson regards the background environment in which the subject sign would be located as "grossly unsuited to this sign notwithstanding the "uninteresting" and "rather undistinguishable existing development" in the immediate vicinity and I agree. Likewise I am, like Mr Simpson, unable to agree with Mr Williamson (T2-70) that with the background shown in the photos at p52, ex 5 the sign on the subject site "would look completely at home". Mr Simpson considers the sign would, from a visual architectural standpoint, significantly dominate its immediate environs (T2-79). I too think it would have that effect notwithstanding the background shown in Mr O'Brien's photographs.
ADC AS26 no longer suggests (as AS27 Version 1 did) that to be acceptable the sign promote the property on which it is located, be no higher than the height of existing adjoining buildings, not exceed 10m in height and be located at least 800m from the billboard signs. The present size is unacceptable in these Version 1 respects.
The ADC seeks also to promote signage that does not unreasonably impact on the access to views for residents on adjoining sites or create nuisance as a result of illuminated devices (s.1.0).
Mr O'Brien agreed that Joslyn Court would be the property most affected by the sign; it would impact upon the views of residents and it would be illuminated for part of each night (T1-62, 63, 64). There would also be shadowing impacts especially on the adjoining motel property. These impacts don't exist now. Mr O'Brien and Mr Knaggs (T2-18, 19) considered the shadowing would not be unacceptable but I do, more so in circumstances where none presently exists. I agree with Mr Venn (ex 11 and T3-8, 46, 47, 48, 49) as to the shadowing. I think impacts on access to views and sunlight and night time lighting of the sign would in the circumstances be unreasonable. A large illuminated billboard would be placed in an area in which people stay and live.
Notwithstanding that he agreed the sign would never look like the Tropicana Motel, Mr O'Brien nevertheless said that there is a proportional relationship in size and elevation between the two such that the sign is not "so far out of whack that it's unacceptable" (T1-46, 47, 48, 55, 56). He said the sign is and would be complementary to the built form of the motel. I cannot agree. In my view the sign would bear no relationship whatsoever to the motel over which it would tower. In this respect I prefer the evidence of Mr Simpson (T2-53, 54, 55, 76, 77). For the same reasons I am unable to accept the evidence of Mr Knaggs that the sign complements the "box type design…" of the motel (T2-15, 38, 39, 40). The appellant's witnesses were here trying to fit a square peg into a round hole.
In terms of the ADC (Version 1.2) the evidence which I accept establishes that the sign would not complement but would dominate the environment in which it is proposed to be located, it would not be consistent with adjacent structures (i.e. adjoining and others in the immediate neighbourhood on the eastern side of the highway, see for example ex 4, p6) and streetscape design, it would not be complementary with the design of the Tropicana Motel or the character of the local area, it would have a face area exceeding 40m², and it would not be consistent with the type of development in the vicinity. It would also unreasonably impact on access to views and night time illumination would amount to a nuisance to residents on adjoining sites. The sign would not be regarded as an acceptable solution under AS1.4 and 26.2 or in other respects satisfy PC1 and 26.
Generally I also agree with what Mr Venn says in ex 11 as to the respects in which the sign conflicts with the Domain Place Code and the BLAP. The sign would not be regarded as an acceptable solution under AS11.2 or in other respects satisfy PC11 of the Domain Place Code.
PC11 of the Tourist and Residential Domain Place Code requires that the sign
· be complementary to the design and style of the Tropicana Motel and to signs and development on adjoining sites (i.e. those next door to - touching - the subject site).
and
· be designed and constructed to complement the local character of the area.
By AS11.2 an acceptable sign would be one which
· complements the design of the Tropicana Motel
· does not dominate the streetscape of the locality and
· is compatible with signage on adjoining sites.
In my view, having regard to the evidence which I prefer, the sign here would not complement the design of the Tropicana Motel, would dominate the streetscape of the locality and would not be compatible with signage on adjoining sites. It would not complement the local character of the area.
Even if the local area/environment for the purposes of the Domain Place Code was as broad as that for the ADC I would still be of the view for the same reasons that the sign would not be an acceptable solution under the Domain Place Code.
Such a sign on the subject site would also be inconsistent with the "preferred future development pattern" of the BLAP and the desired residential character of Precinct 2. It certainly could not be described as a "low intensity commercial use".
For these reasons the application conflicts with the applicable codes and the BLAP and there are, in my view, no grounds to warrant approval despite the conflict. Mr Williamson referred to these as "public interest" matters favouring a relocation of the sign from the western to the eastern side of the highway (see ex 11, p83, para 21.2). With respect the public has no interest in effectively moving this sign from a Fringe Business Domain to a Tourist and Residential Domain located within the residential precinct of the BLAP. It would not with respect to Mr Knaggs "contribute positively to the character and amenity" of the new area. I cannot agree that the subject site is a more suitable location than where the sign is now.
For these reasons the appeal will be dismissed.
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