Lease Equity Pty Ltd and Town Of Vincent
[2007] WASAT 251
•27 SEPTEMBER 2007
LEASE EQUITY PTY LTD and TOWN OF VINCENT [2007] WASAT 251
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 251 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:74/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 27/09/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The decision under review is set aside and planning consent is granted | ||
| B | |||
| PDF Version |
| Parties: | LEASE EQUITY PTY LTD TOWN OF VINCENT |
Catchwords: | Town planning Approval of signs Proper application of the provisions of the Signs and Advertising Policy Whether development "Minor Nature Development" The need for planning consent Whether proposed sign will have a negative impact on the amenity of the locality Whether proposed sign conflicts with the respondent's policy for the Mount Lawley Precinct Application for review allowed |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 60(2) Planning and Development Act 2005 (WA) Town of Vincent Town Planning Scheme No 1, cl 33(d) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside and the following decision is substituted:,"Planning consent is granted under the Town of Vincent Town Planning Scheme No 1 and the Metropolitan Region Scheme for the erection of a sign (975 millimetres x 3.8 metres) for "Caffissimo" Lot 54 (No 7/595) Beaufort Street, Mount Lawley as appears on the plans prepared by Focus on Signs and received by the Town of Vincent on 13 September 2006." |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LEASE EQUITY PTY LTD and TOWN OF VINCENT [2007] WASAT 251 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 SEPTEMBER 2007 FILE NO/S : DR 74 of 2007 BETWEEN : LEASE EQUITY PTY LTD
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Town planning - Approval of signs - Proper application of the provisions of the Signs and Advertising Policy - Whether development "Minor Nature Development" - The need for planning consent - Whether proposed sign will have a negative impact on the amenity of the locality - Whether proposed sign conflicts with the respondent's policy for the Mount Lawley Precinct - Application for review allowed
Legislation:
State Administrative Tribunal Act 2004 (WA), s 60(2)
(Page 2)
Planning and Development Act 2005 (WA)
Town of Vincent Town Planning Scheme No 1, cl 33(d)
Result:
The application for review is allowed
The decision under review is set aside and planning consent is granted
Category: B
Representation:
Counsel:
Applicant : Mr S Fairfoul (Acting as Agent)
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant : Greg Rowe & Associates (Planning Consultants)
Respondent : SJB Planning and Urban Design (Planning Consultants)
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review involved a decision by the Town of Vincent to refuse an application for the erection of a sign on a mixed use building in Beaufort Street, Mount Lawley.
2 The main issue in dispute between the parties was which section of the Town of Vincent's signs and advertising policy was to be applied in dealing with the sign the subject of the review. Given the commercial context and the mixed use nature of the building the Tribunal found that the sign should be assessed as a "Projecting Sign attached directly to a building" rather than under the "residential Properties and Buildings" provisions of the policy.
3 The applicant contended that the sign constituted "minor nature development" under the provisions of the town planning scheme and policy and did not, therefore, require planning consent. On this matter the Tribunal found that the sign did not fully comply with the signs and advertising policy and therefore required planning consent under Town of Vincent Town Planning Scheme No 1.
4 On the merits of the case the Tribunal found that the sign generally complied with the relevant Council policies. It would not adversely impact on the amenity of Beaufort Street and any marginal impacts of the sign on views of the existing artwork on the building were, in the context of its location on an active retail strip, acceptable.
5 The Tribunal allowed the review and granted planning consent for the sign.
Introduction
6 On 27 May 2003, the Town of Vincent (Town, Council or respondent) granted planning consent under the Town of Vincent Town Planning Scheme No 1 (TPS 1) for "Proposed Alterations, Additions, and a change of use to the existing development to create a three - four storey mixed use development, comprising six(6) shops, three (3) eating house[s] and sixteen (16) multiple dwellings" on lots 54 and 53 (Nos 595 and 1-5) Beaufort Street (subject land). The subject land is located on the corner of Beaufort Street and Chelmsford Road, in Mount Lawley.
7 This approval was subject to a range of conditions of which condition l read as follows:
(Page 4)
- "[A]ll signage shall be subject to a separate Planning Approval and Sign Licence application being submitted and approved prior to the erection of the signage;"
8 Planning approval is required for a sign under TPS 1 unless it fully complies with the signs and advertising policy and thereby constitutes a "minor nature development" under the provisions of Policy 3.5.1 - Minor Nature Development and TPS 1.
9 On 27 June 2006, the applicant sought planning approval from the Town for the erection of a sign on the building the subject of the 2003 approval.
10 On 31 October 2006, the applicant was advised by the Town that the proposal was "assessed and was found not to be in accordance with the provisions of the [TPS 1] and associated policies" and the application was refused.
11 The reasons for refusal were as follows:
i) the development will unduly adversely affect the orderly and proper planning and the preservation of the amenities of the locality;
ii) the non-compliance with the standards for signs on residential properties of the Town's policy relating to signs and advertising; and
iii) the proposed signage is considered to obstruct views to the existing public art.
12 On 15 December 2006, the applicant wrote to the Council seeking a review of the refusal and setting out a response to each of the reasons for refusal.
13 On 7 February 2007, the Council responded to the applicant's correspondence and in so doing set out in some detail the basis on which the original application for the sign had been assessed. The applicant was advised that while it had the option of lodging a new planning application that "should a similar planning application be submitted, it is unlikely that the Town's Officers would approve it".
14 On the 7 March 2007, the applicant submitted the matter to the Tribunal for review.
(Page 5)
Application of the signs policy
15 An issue in dispute between the parties was which section of the Town's signs and advertising policy was to be applied in dealing with the sign the subject of the review.
16 The respondent submitted that the sign fell within the ambit of "Standards for Signs on Residential Properties and Buildings" in cl 2(ii) of the policy. It was argued that the development on which the sign was to be erected was "predominantly residential".
17 The applicant submitted that the sign constituted a "Projecting Sign" under cl 2(xiv) of the policy. That is, a sign not subject to the "residential properties or buildings" provisions of the policy.
18 However, the fact that this point of application of the policy had not been included in the applicant's statement of issues, facts and contentions and that the respondent received the applicant's witness statements only two days prior to the hearing meant that the respondent was not able to fully argue this matter at the hearing held on 21 June 2007.
19 The Tribunal at the hearing therefore determined:
• In regard to the matter of the application of the Town of Vincent Policy 3.5.2 - Signs and Advertising (Policy 3.5.2) the parties were required to submit and exchange documents on which they wished to rely, and
• Following the receipt of such submissions the matter was to be determined, by consent, on the documents pursuant to s 60(2) of the State Administrative Tribunal Act2004 (WA).
20 Subsequently, it came to the Tribunal's attention in other proceedings involving the Town that Policy 3.5.2 may have been recently amended. The Tribunal therefore sought a submission from the respondent on this matter.
21 The respondent advised that amendments to Policy 3.5.2 "adopted in the interim" by the Town addressed ground based signs; these amendments have no bearing on the current review.
22 The issue of the application of the policy is returned to below.
(Page 6)
The proposed development
23 The application for review involved an application made to the Town seeking planning consent for the erection of a sign on a mixed use building located at lots 53 and 54 (No 7/595) Beaufort Street, Mount Lawley.
24 The subject land is located on the southern side of the intersection of Beaufort Street and Chelmsford Road, Mount Lawley. The area of the site is 1586 square metres. The surrounding area supports a range of commercial land use along Beaufort Street and residential uses down the streets off Beaufort Street, including Chelmsford Road. The property is zoned "District Centre" under TPS 1. The subject land is located within what is referred to under the provisions of TPS 1 as the "Mount Lawley Centre Precinct". The area is subject to Policy 3.1.11 - Mount Lawley Centre Precinct Policy (Policy 3.1.11). The land to the east and west of properties abutting Beaufort Street is zoned for residential use.
25 The building comprises a three to four storey mixed use development containing six shops, three eating houses and 16 multiple dwellings. The structure basically comprises an "L" built up to the property lines on both the Beaufort Street and Chelmsford Road boundaries.
26 The building presents a curve to the corner with commercial development on the ground floor, two levels of residential development above, and a top floor set back from the façade. Mounted centrally on the two middle floors is a public art work comprising a metal sculptural relief set off the façade of the building.
27 The proposed sign relates to "Caffisimo" an existing café located on the ground floor on the corner of Beaufort Street and Chelmsford Road. The sign is to be erected on the side of the building above the awning level close to the corner on the façade facing Beaufort Street. The lowest point of the sign will be approximately 6.5 metres above pavement level.
28 The proposed sign will be 975 millimetres wide and 3.8 metres high (an area of approximately 3.7 square metres). It is proposed to be fixed on four pins which appear to project approximately 100 millimetres to 150 millimetres from the façade of the building.
The decision under review
29 The correspondence from the Town to the applicant, dated 7 February 2007, arguably constituted advice in regard to the reasons for
(Page 7)
- refusal of the application by the Town on 31 October 2006, rather than a determination under TPS 1.
30 However, both parties treated this advice as the decision under review. To avoid any doubts the Tribunal by consent extended the time for review until the date of the filing of the application.
Issues
31 It was common ground that the issues in this matter were as follows:
1) Whether the proposed development will have a negative impact on the amenity of the locality.
2) Whether the proposed development conflicts with the respondent's policy on signs and advertising.
3) Whether the proposed development conflicts with the respondent's policy relating to the Mount Lawley Precinct.
The relevant section of the signs and advertising policy to be applied
32 In its written submission, the respondent argued that "[t]he sign would fall under the definition of "projecting sign" "but nevertheless is subject to part 2(ii) of ... [Policy 3.5.2] as the development is predominantly residential with all of the floors, except the ground floor, being residential".
33 The applicant submitted that the sign "is classified as a 'Projecting Sign attached directly to a building' under [cl (e)] of the Town's Signs and Advertising Policy".
34 The applicant's contentions should be accepted for the following reasons:
• The subject land is currently zoned "District Centre" rather than "Residential" under TPS 1.
• The initial approval for the development, dated 4 June 2003, gave express consent for the creation of a "three-four storey mixed use development".
• In refusing the application for the sign the subject of this review the Town expressly referred to "Signage Addition to Existing Mixed Use Development".
(Page 8)
- • The proposed sign is to be located within the Mount Lawley Centre Precinct which the relevant Council policy suggests "is to continue to serve the retail, commercial and community needs of the district" and where "[t]he traditional 'main road' character of the Precinct is to be preserved and enhanced".
• The sign will be located on Beaufort Street where Council policy suggests "[t]he ribbon form of development along Beaufort Street … should be reinforced with nil setbacks, continuous interactive fronts and weather protection for pedestrians …". This suggests a strong commercial character for development along Beaufort Street.
35 Thus, given the commercial context on Beaufort Street and the mixed use nature of the building, the Tribunal found that the sign should be assessed as a "Projecting Sign attached directly to a building" under cl (e) of Policy 3.5.2.
The need for planning consent
36 The applicant submitted that the sign the subject of this review did not require planning consent.
37 The applicant's argument was that the proposed sign was of a "minor nature" which is exempt from the need to obtain planning approval under Policy 3.1.11 and cl 33(d) of TPS 1.
38 Clause 2(xii) of this policy exempts "signs and advertising that fully comply with the Town of Vincent Policy relating to Signage and Advertising, including all signs and advertising which are not visible from any public street and/or adjacent property" from the requirement to obtain planning approval.
39 The applicant contended that the sign the subject of this review was a "Projecting Sign" under cl 2(xiv) of Policy 3.5.2 and, in the applicant's view, complied with the development criteria set out in subclause (e) of cl 2(xiv) of Policy 3.5.2.
40 The Tribunal does not agree with these contentions for the following reasons:
• The original approval of 23 May 2003 included a condition requiring that all signage was subject to a
- separate Planning Approval and Sign Licence and there was no evidence to suggest that the applicant had sought to challenge this condition either by seeking reconsideration from the Town, or with the Tribunal by way of a review of the decision.
- • Planning consent had been sought for the sign the subject of the review and there was no evidence that the applicant had challenged the requirement by reference to Policy 3.1.11.
• The applicant's statement of issues, facts and contentions at par (d) "facts" stated "[t]he [a]pplicant agrees that the proposed development does not strictly conform with all of the provisions of the respondent's Policy on Signs and Advertising".
• In any event, a review of the drawings submitted with the application for planning consent (Focus on Signs 1:100 scale elevation) suggested that the sign was unlikely to meet the requirement to "not project more than a metre from the wall" established by cl 2(xiv)(e)(aa) of Policy 3.5.2.
Thus, planning consent is required for the sign.
Whether the proposed development will have a negative impact on the amenity of the locality
41 The respondent argued that "[t]he signage will impact on the amenity of the surrounding area and specifically impacts on the public art on the façade of the building".
42 In addition, it was submitted that:
"[T]here is already signage for the café. The additional signage is not warranted and is considered excessive given there is already adequate signage on the premises. Adequate exposure is provided by the existing sign. The additional signage is excessive and will adversely impact on the public art, the amenity of the building and the locality."
43 The applicant contended that "the proposal is consistent with the existing and proposed character of the locality" and argued that "the
(Page 10)
- proposed development will not detract from the public art". In seeking to substantiate this case the applicant provided a number of photographs of both the existing "projecting signage" in the locality, and of the existing building.
44 Clause 2(xiv)(a) of Policy 3.5.2 states that a "projecting sign" is to "be limited to one 'Projecting Sign' per tenancy". The policy does not limit the number of signs other than through a general standard which stipulates that "the total signage area is not to exceed 10% of the total area of the building". The Tribunal is of the view that these provisions adequately deal with the issue of excessive signage, set the relevant standard and that the proposed sign generally complied with the relevant requirements of the policy.
45 The potential impacts of the proposed sign on the amenity of the locality need to be principally assessed in terms of Policy 3.1.11. The clear purpose of this policy is to consolidate within its existing boundaries a retail, commercial and community area with a strong attractive shopping area forming its focus. This focus is to preserve and enhance the traditional "main road" character of the precinct by reinforcing the "ribbon form of development along Beaufort Street".
46 The policy also seeks to consolidate the areas as a district shopping centre "catering initially for residents and workers in the surrounding suburbs and for passing trade but having a wider area of attraction in the evenings offering a variety of entertainment activities".
47 In the context of these policy objectives, precedent within the locality for existing "projecting signs", and having regard to the need to attract evening trade the Tribunal is of the view that the proposed sign will not adversely impact on the general amenity of Beaufort Street.
48 In regard to the potential of the proposed sign to "adversely impact on the public art" on the building it is necessary to assess both the configuration of the building and the location of the public art on the building.
49 The photographs show that the building curves around the corner from Beaufort Street to Chelmsford Road and the public art is located centrally on this curve between the second and third floor levels. The fact that the corner of Beaufort Street and Chelmsford Road is an acute angle means that the public art is orientated principally facing north east, that is, "up" Beaufort Street. The artwork is therefore predominantly seen when
(Page 11)
- approaching from the north travelling south on Beaufort Street either in a vehicle or as a pedestrian.
50 Approaching from the south the artwork is obscured by the curve of the building until one is very close to the Chelmsford Road intersection.
51 In this context, the proposed sign will marginally impact on views of the artwork particularly for pedestrians on the east side of Beaufort Street for a short distance south of the intersection with Chelmsford Street. The Tribunal considers this impact acceptable given the context of an active retail strip.
52 The Tribunal therefore concluded that the sign complies with the intent of the Town's signs and advertising policy and does not conflict with Policy 3.1.11.
Summary and conclusions
53 This application for review involved an application seeking planning consent for a sign to be erected on an existing mixed use development located at Lot 54 Beaufort Street, Mount Lawley.
54 In the review, the Tribunal found that given the commercial character of Beaufort Street and the mixed use nature of the building the sign should be assessed as a "Projecting Sign attached directly to a building" under cl 2(xiv)(e) of Policy 3.5.2 rather than as a sign located on a residential property or building.
55 In regard to the requirement for planning consent, the Tribunal found that in this particular case, the sign the subject of the current review did not fully comply with the provisions of Policy 3.5.2 and required planning consent under the provisions of TPS 1.
56 In regard to the issue of excessive signage, the Tribunal found that the policy does not limit the number of signs other than through a general standard which stipulates that "the total signage area is not to exceed 10[%] of the total area of the building" and that the proposed sign generally complied with the relevant requirements of the policy.
57 In the context of the policy objectives of Policy 3.1.11, precedent within the locality for "projecting signs" and the need to attract evening trade, the Tribunal found that the proposed sign will not adversely impact on the general amenity of Beaufort Street and did not conflict with Policy 3.1.11.
(Page 12)
58 In regard to the impact of the proposed sign on existing public art on the building, the Tribunal found that the proposed sign will marginally impact on views of the artwork particularly for pedestrians on the east side of Beaufort Street for a short distance south of the intersection with Chelmsford Road. However, the Tribunal considered this impact acceptable given the context of an active retail strip.
59 In the context of the above findings, the Tribunal allowed the application for review, set aside the decision under review and granted planning consent.
Orders
60 For the above reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision under review is set aside and the following decision is substituted:
"Planning consent is granted under the Town of Vincent Town Planning Scheme No 1 and the Metropolitan Region Scheme for the erection of a sign (975 millimetres x 3.8 metres) for "Caffissimo" Lot 54 (No 7/595) Beaufort Street, Mount Lawley as appears on the plans prepared by Focus on Signs and received by the Town of Vincent on 13 September 2006."
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
0
0
3