Launceston City Council v National Trust of Australia (Tasmania)
[2001] TASSC 78
•17 July 2001
[2001] TASSC 78
CITATION:Launceston City Council v National Trust of Australia (Tasmania) [2001] TASSC 78
PARTIES: LAUNCESTON CITY COUNCIL
v
NATIONAL TRUST OF AUSTRALIA (TASMANIA)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 6/2001
DELIVERED ON: 17 July 2001
DELIVERED AT: Hobart
HEARING DATES: 14 June 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Local Government - Town Planning - Consent and approval of Councils - Matters for consideration of Council - Heritage protection and controls - "Advertising Signs" - Where proposed sign possesses the characteristics of both a discretionary and a prohibited development - Effect on planning approval - Regard to be had to the purposes of heritage protection.
ResourceManagement and Planning Appeal Tribunal Act1993 (Tas), s25.
Land Use Planning and Approvals Act 1993 (Tas), s3.
Launceston Planning Scheme 1996, cls 37, 42.
Cascone v Whittlesea Shire Council (1993) 80 LGRA 367, distinguished.
Aust Dig Local Government [211]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine
Respondent: M J Brett
Solicitors:
Appellant: S B McElwaine
Respondent: Ritchie & Parker, Alfred Green & Co
Judgment Number: [2001] TASSC 78
Number of Paragraphs: 8
Serial No 78/2001
File No LCA 6/2001
LAUNCESTON CITY COUNCIL v
NATIONAL TRUST OF AUSTRALIA (TASMANIA)
REASONS FOR JUDGMENT COX CJ
17 July 2001
This is an appeal pursuant to the ResourceManagement and Planning Appeal Tribunal Act 1993, s25, against a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") dated 12 April 2001. The grounds of appeal are as follows:
"1 The Tribunal erred in law in concluding that the subject matter of the application before it was a sign which was prohibited pursuant to the provisions of the Launceston Planning Scheme 1996 (the Planning Scheme);
2 The Tribunal erred in law in construing clause 42.7.4 of the Planning Scheme as prohibiting the type of sign which was the subject of the application to the Tribunal;
3 The Tribunal erred in law in failing to consider whether the sign the subject of the application before it had dominant characteristics which meant that it was a prohibited sign in accordance with the Planning Scheme or whether such characteristics were ancillary or subservient to other characteristics which entitled consideration of the application before the Tribunal as one which was discretionary upon a proper construction of the provisions of the Planning Scheme."
The background to the appeal is as follows. Application was made for a permit for "string neon sign" above the top step of the Cameron Street entrance of the Launceston Post Office. The sign was to be affixed by suspending it from a wooden ceiling resting on top of the columns. The plans accompanying the sign showed that the frame to which it was fixed was a tubular metal frame consisting of an arch with its ends at the top of the columns on either side of the entrance doorway. Two struts from the top of the arch would run to the inside of the entrance archway. The two bases of the arch would, according to the detailed drawing, terminate on what appeared to be metal brackets fitting into the angle at the top of each column. The string neon sign was arranged to form the word "Postreos", the name of the restaurant business carried on in the premises. Council granted a permit for the proposed sign and the Tasmanian Heritage Council granted a works approval. An appeal was brought against each of the permit and the works approval. In the appeal against the permit granted by the Launceston City Council, the present respondent raised the issue of whether the sign was prohibited under the relevant planning scheme. The site lies within the area controlled by the Launceston Planning Scheme 1996 ("the Planning Scheme"). Under that Scheme, it is listed in Schedule 2 and it is therefore a "special control area" under cl 42.7.4 of the Planning Scheme.
Clause 42 of the Planning Scheme is entitled "Advertising Signs" and relevantly reads:
"42.1 Purpose
(1) To provide for adequate and effective advertising signs appropriate to each zone.
(2) To provide for the orderly display of advertising signs.
(3) To ensure that advertising signs do not cause loss of amenity or adversely affect the natural or built environment or the safety, appearance or efficiency of a public way.
…
42.2 Types of signs
…
Advertisement: any words, lettering, model, symbol, device, representation, banner, bunting, decorative flag or lights used for the purpose of advertising, announcement or display.
…
Hanging Sign: a sign attached to an exposed frame attached to a wall or a pole and which displays a message indicating the name and nature of the business carried out on the site.
…
Internally Illuminated Sign: a sign illuminated by internal lighting or which contains lights or illuminated tubes arranged as an advertisement."
The Tribunal found, and no challenge is made to the finding, that the sign complied with each of the requirements to make it a "Hanging Sign". The sign additionally consisted of illuminated tubes arranged to form the name of the business. The Tribunal also found, uncontroversially, that the proposed sign complied with the definition of an "Internally Illuminated Sign".
The Planning Scheme, by cl 42.3.3 provides:
"42.3.3 Discretionary sign ('D')
(1)A discretionary permit is required for a sign:
(a)Listed in an Advertising Sign Table as 'D';
(b)Which makes use of any provision to relax or modify any sign standard; or
(c)A sign which does not comply precisely with any definition or is not a specific sign type defined in Clause 42.2."
By cl 42.3.4, it is provided that a sign is prohibited if "Listed in an Advertising Sign Table as 'X'". The relevant Advertising Sign Table for the premises on which the proposed sign was intended to be erected (42.7.4) lists as "D", or discretionary, a "Hanging Sign" and lists as "X", or prohibited, an "Internally Illuminated Sign".
It was submitted for the appellant that the sign complying with two definitions within cl 42.2 could not be said to comply precisely with any definition or to be a specific sign type defined in cl 42.2 and that accordingly it required a discretionary permit by virtue of cl 42.3.3(1)(c), rather than being prohibited. The Tribunal, rightly in my view, rejected this contention. The definitions in cl 42.2 are not mutually exclusive. To a large extent, they overlap. A sign complying with the definition of "Advertisement" can also be one complying with the definitions of "Hanging Sign" and "Internally Illuminated Sign". It might also comply with the definition of "Name Plates". In this case, the sign complies precisely with the definitions of "Hanging Sign" and "Internally Illuminated Sign". It has all the characteristics set out in each definition. In these circumstances, cl 42.3.3(1)(c) has no application.
Was the Tribunal in error in concluding as it did that the proposed sign was prohibited by cl 42.7.4? Before addressing this question, it is appropriate to consider ground 3. Counsel for the appellant argued that the Tribunal was in error in failing to consider whether the subject of the application had dominant characteristics which required that it be considered as falling into the category of a "Hanging Sign" and, hence, discretionary rather than an "Internally Illuminated Sign" and, hence, prohibited. He referred to a line of authority including Cascone v Whittlesea Shire Council (1993) 80 LGRA 367, where multiple uses of or purposes for the use of land might be discerned, some of them permitted and others prohibited by relevant town planning schemes. The Victorian Supreme Court (Ashley J) in that case held that where more than one separate and distinct purpose is revealed, the question whether one is dominant is to be asked, followed by the question whether the lesser purpose or purposes are ancillary to the dominant purpose. In determining whether the proposed use is a permitted one, the question should be answered by reference to the "'real and substantial' purpose of the use of the land in question" (Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157 at 161 per Marks J). But whereas such an inquiry is appropriate where multiple purposes can be discerned in the activities carried on in certain premises, such as a retail shop where some wholesale dealings may occur, or a warehouse where some retail dealings may occur (eg Food Barn Pty Ltd v Solicitor-General (New South Wales) (1975) 32 LGRA 157), the Tribunal in this case was not concerned with any purpose or use of the proposed sign. The erection of the sign falls within the definition of "development" in the Land Use Planning and Approvals Act 1993, s3, rather than "use" and was a single discrete development to which cl 11.1 of the Planning Scheme to which the appellant referred has no practical application. (That clause provides, "Where a proposed use or development is an integral, necessary or ancillary part of an existing or proposed use or development, that use or development may be included in the same category of use or development and must conform with the relevant provisions for that use or development".) The sign was both a "Hanging Sign" and an "Internally Illuminated Sign". I do not think that by analogy with the purpose cases one can distil any practical means of determining whether the development in question is more properly characterised as the erection of a "Hanging Sign" which is internally illuminated or the erection of an "Internally Illuminated Sign" which is a hanging sign.
Greater assistance in interpreting the Planning Scheme for present purposes may be had from a consideration of the differentiation in the Advertising Sign Table relevant to this particular development. That Table relates to what is permitted and what is prohibited in Special Control Areas. Schedule 2 of the Planning Scheme includes the site on which the sign is sought to be erected. The provisions of cl 37.1 apply to any place listed in Schedule 2 of the Planning Scheme. Part 4, in which cl 37.1 ff are to be found, contains "Special Provisions" and commences with the words "Despite any other provision of the Planning Scheme the provisions of Part 4 apply in relation to the use and development of land". Clause 37 is headed "Historic Cultural Heritage Significance" and cl 37.1 provides:
"37.1 Purpose
(1)To conserve and enhance land and those buildings, objects, areas or other places which are of scientific, aesthetic, artistic, architectural or historical interest, or otherwise of special cultural value;
(2)To integrate heritage conservation into the planning and development control process;
(3)To encourage and facilitate the continued use of these items for reasonably beneficial purposes;
(4)To discourage the deterioration, illegal demolition or removal of loaned, buildings and items of heritage value;
(5)To ensure that new use and development is undertaken in a manner that is sympathetic to, and does not detract from, the cultural significance of the land, buildings and items and their settings, as well as streetscapes and landscapes and the distinctive character that they impart; and
(6)To recognise the special contribution that the historic cultural significance of the municipality makes to tourism."
Having regard to these purposes, it is not surprising to find that while a "Hanging Sign" (along with Awning Facia Sign, Below Awning Sign, Flag Sign and Sunblind) is discretionary, an "Internally Illuminated Sign" (along with Animated Advertisement, Projecting Wall Sign or Hoarding) is positively prohibited. Whereas a "Hanging Sign" which is defined by reference to its mode of attachment to a site, may or may not in any given circumstances be thought to be inappropriate to a building of heritage significance, it would seem that the draftsperson of the Planning Scheme has adopted the stance that an "Internally Illuminated Sign", such as a neon sign, is so out of keeping with, and unsympathetic to, the cultural significance of such a site as to require that it be prohibited in all circumstances. Accordingly, in my view, although the erection of a "Hanging Sign" without more, is discretionary, if it has the added characteristic of falling into the latter class, that fact renders it a prohibited development. I agree with the Tribunal's decision. The appeal must be dismissed.
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