MAJOR HOLDINGS PTY LTD and PRESIDING MEMBER OF THE METRO INNER-SOUTH JOINT DEVELOPMENT ASSESSMENT PANEL - [2023] WASAT 97

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   MAJOR HOLDINGS PTY LTD and PRESIDING MEMBER OF THE METRO INNER-SOUTH JOINT DEVELOPMENT ASSESSMENT PANEL [2023] WASAT 97
MEMBER:   MS C BARTON, MEMBER
HEARD:   28 AND 29 JUNE 2023
DELIVERED          :   19 OCTOBER 2023
FILE NO/S:   DR 15 of 2023
BETWEEN:   MAJOR HOLDINGS PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO INNER-SOUTH JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town planning - Development application - Exercise of planning discretion - Advertising sign - Digital sign - Third party advertising - Advertisement - Innominate use - Whether extension of a use within the boundary of a lot - Character and amenity of the locality - Local signage policy - Whether consistent application of policy - Whether cogent reason to depart from policy - Mixed Business zone - Whether consistency with zone objectives - History of site - Whether undesirable precedent

Legislation:

Evidence Act 1906 (WA)
City of Belmont Local Planning Scheme No. 15, Sch 1, Sch 5, cl 1.6(d), cl 1.7.1, cl 1.7.2, cl 3.2, cl 3.3.3, cl 3.3.3(a), cl 3.3.3(c), cl 3.4.2, cl 3.4.2(a), cl 3.4.2(b)
Metropolitan Region Scheme
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 17, reg 18
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 3(5), cl 60, cl 61, cl 67(2), cl 67(2)(a), cl 67(2)(b), cl 67(2)(g), cl 67(2)(m), cl 67(2)(m)(i), cl 67(2)(n), cl 67(2)(x), cl 77(2)(a)
Planning and Development Act 2005 (WA), s 87(4)
State Administrative Tribunal Act 2004 (WA), s 17, s 18, s 27, s 27(1), s 29(3), s 32(1), s 32(2)(a), s 32(2)(b)
State Planning Policy 7.3 Residential Design Codes Volume 1

Result:

Respondent's decision affirmed

Representation:

Counsel:

Applicant	:	Mr J Skinner
Respondent	:	Ms C Foster

Solicitors:

Applicant	:	Thomson Geer - Perth
Respondent	:	State Solicitor's Office

Cases referred to in decision(s):

Adbooth Pty Ltd and City of Perth [2007] WASAT 76
Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1998, 21 October 1988)
Austral Bricks (WA) Pty Ltd and Shire of Serpentine Jarrahdale [2023] WASAT 40
Avalon Sheds and Stables and City of Belmont [2009] WASAT 67
Caratti Holding Co Pty Ltd and City of Belmont [2021] WASAT 105
Carrooda Pty Ltd and City of Gosnells [2022] WASAT 15
Cerini and City of Vincent [2023] WASAT 74
Claude Neon Limited v City of Perth (Unreported, WASC, Library No 6812, 31 July 1987)
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185
Cornhill and Western Australian Planning Commission [2009] WASAT 9
D and Department of Community Development [2007] WASAT 154
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 24 ALR 577; 2 ALD 60; 46 FLR 409
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36
Goldfield Village and City of Kalgoorlie-Boulder [2023] WASAT 6
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75; (2002) 121 LGERA 101
Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Marsh and Commissioner of Police [2018] WASAT 139
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371
Minister for Immigration Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189
Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Phillips and Shire of Mundaring [2009] WASAT 193
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Reid v City of Gosnells [2023] WASC 48
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
WA Billboards and City of Belmont [2023] WASAT 42
Warr and Town of Cambridge [2020] WASAT 126
Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Major Holdings Pty Ltd (applicant), is the registered proprietor of No 225 (Lot 500) Great Eastern Highway, Belmont (subject land). The respondent is the Metro Inner-South Joint Development Assessment Panel (respondent).
On 30 July 2021, the applicant was granted development approval by the respondent to install a digital sign (digital sign) on the south-west elevation of the blade wall on Building 3 of the subject land, located at the corner of Great Eastern Highway and Hargreaves Street (blade wall). On 29 September 2022, the applicant sought to remove a condition of that approval which prohibits the display of third party advertising (development application). On 6 January 2023, the respondent, being the relevant consent authority, refused the development application (respondent's decision).
On 31 January 2023, the applicant commenced a proceeding in the Tribunal to review the respondent's decision pursuant to reg 18 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations). Consequently, the proceeding falls within the Tribunal's review jurisdiction.
For the reasons that follow, I have concluded that the respondent's decision should be affirmed.

The subject land and the locality

The subject land is formally described as Lot 500 on Deposited Plan 418282 being the whole of the land in Certificate of Title Volume 2986 Folio 709.[1] The subject land has a gross lettable area of 11,011m² and is bounded by Great Eastern Highway to the north, Hargreaves Street to the west, Daly Street to the east, and Barker Street to the south.[2]
[1] Respondent's s 24 bundle; Exhibit 2 (Respondent's s 24 bundle), page 20.
[2] Respondent's s 24 bundle, page 7; Exhibit 10.
A number of tenancies are located on the subject land and form part of a mixed commercial development known as 'Belmont West', including approved showroom, warehouse, motor vehicle repair, and restaurant uses and associated signage (commercial development or centre).[3]
[3] Respondent's Statement of Issues Facts and Contentions (SIFC), para 13; Applicant's SIFC, para 4.
There is no direct access to the subject land from Great Eastern Highway. Left in only access is available from Great Eastern Highway to Daly Street and Hargreaves Street. Consequently, vehicular access to the commercial development is from Daly Street, Barker Street and Hargreaves Street.
Existing signage on the subject land comprises internal wall signage panels for individual tenancies, as well as external signage panels for those tenancies facing Great Eastern Highway and Hargreaves Street. There is also a 'Belmont Central' monolith sign at the corner of Great Eastern Highway and Daly Street identifying the individual tenancies within the commercial development.[4]
[4] Respondent's s 24 bundle, document 23.
A range of commercial mixed business uses are located on the opposite side of Great Eastern Highway and to the north-east on the opposite side of Daly Street.[5] The land fronting Great Eastern Highway on the opposite side of Hargreaves Street at 223 Great Eastern Highway is currently vacant (223 Great Eastern Highway). However, on 1 November 2023, approval was granted by the respondent for a mixed commercial development comprising 3,202m² of floor space and 84 car parking bays at 223 Great Eastern Highway.[6] Residential development is located to the south-east of the subject land on the opposite side of Barker Street. Centenary Park Reserve is located to the east of the subject land.[7]
[5] Respondent's SIFC, para 16.
[6] Respondent's SIFC, para 16; Applicant's SIFC, para 4(d).
[7] Respondent's s 24 bundle, document 21, page 890.
The subject land is zoned 'Mixed Business'. The Mixed Business zone extends along the eastern side of Great Eastern Highway from Daly Street to beyond Belmont Avenue to the south.[8]

Approval history

[8] Respondent's s 24 bundle, document 22, page 891.

On 30 January 2019, a sign was approved on the blade wall as part of the signage strategy (signage strategy) for the commercial development on the subject land (original approval).[9] Pursuant to the original approval, the sign was approved with an area of 25m² and displaying the development name 'Belmont West' and the street number of the centre. Condition 23 of the original approval stated:
All signage on the subject site shall only advertise the businesses operating on the subject lot.
[9] Respondent's s 24 bundle, pages 215 to 250.
On 21 December 2020, the respondent refused an application to delete the 'Belmont West' sign on the blade wall and replace it with a 32m²digital sign.[10] The applicant applied to the Tribunal for review of the refusal (DR 7 of 2022).
[10] Respondent's s 24 bundle, pages 269 to 270.
On 30 July 2021, following orders made by the Tribunal in DR 7 of 2022, the respondent reconsidered its decision and approved the application for a 32m² digital sign subject to conditions (existing approval).[11] Condition 23 of the existing approval, which prohibits the digital sign from displaying third party advertising, was made by the consent of the parties on 27 August 2021 (condition 23).[12]
[11] Respondent's s 24 bundle, pages 278 to 279.
[12] Order 3 of the orders made by the Tribunal on 27 August 2021 in DR 7 of 2021; Respondent's s 24 bundle, page 72.
On 29 September 2022, pursuant to reg 17 of the DAP Regulations, the applicant's agent sought to amend the existing approval to delete condition 23 to allow for the digital sign to display variable advertising content, including the services offered and/or products produced, sold and/or manufactured on the subject land, as well as third party advertising.[13] The amendments sought by the applicant to the existing approval comprise, but are not limited to, the following (proposed amendments):[14]
[13] Respondent's s 24 bundle, pages 8 and 12.
[14] Respondent's SIFC, para 4; Applicant's SIFC, para 1(c).
(a)replacement of a 32sqm digital wall sign with a 29.7sqm digital sign (Sign) to reflect manufacturing specifications; and introduction of louvres surrounding each LED cell to restrict the angle at which the sign can be viewed from Great Eastern Highway to address an area of concern for Main Roads Western Australia (Main Roads) in the current approved design;
(b)deletion of condition 23 (Order 3 of the orders dated 27 August 2021) which states that:
All signage on the subject site shall only advertise services offered and/or products produced, sold and/or manufactured on the land or buildings related to the approval uses taking place on the subject site; and
(c)deletion of conditions 28(a), 28(b), 28(d) and 28(j) which state that:
28(a)The minimum dwell time for any advertisement shall not be less than 5 minutes.
28(b)The illumination of the sign must not exceed 150cd/m² (candela per square metre) between sunset and sunrise.
…
28(d)That the sign does not contain a transition time from one display to another than exceeds 0.1 seconds.
…
28(j)Lighting is controlled in accordance with AS 4282:2019 Control of the obtrusive effects of outdoor lighting.
On 6 January 2023, the respondent refused the proposed amendments for the following reasons:[15]
1.Having regard for Clause 67 (2)(a) of the Planning and Development (Local Planning Schemes) Regulations 2015 the proposal is not consistent with the Clause 1.6 (d) of Local Planning Scheme No.15 as the Third Party Signage will compete and draw away from local businesses, hence prejudice the aim of facilitating employment and economic growth.
2.Having regard for Clause 67 (2)(g) of the Planning and Development (Local Planning Schemes) Regulations 2015, the sign contains advertisement of services and products which are not available at the site, contrary to the Objectives of 3.1 and 3.3, and the requirements of Clause 6.1.1 of the City of Belmont Local Planning Policy No. 12.
3.Having regard for Clause 67 (2)(x) of the Planning and Development (Local Planning Schemes) Regulations 2015 the advertisement of services and products which are not available at the site will impact the community as whole, by drawing away from the economic and commercial welfare of the locality, and undermining the effectiveness of necessary site-specific signage.
4.Having regard for Clause 67 (2)(b) of the Planning and Development (Local Planning Schemes) Regulations 2015, approving Third Party Signage at the subject site would be contrary to the requirements of orderly and proper planning as it would set an undesirable precedent.
[15] Respondent's s 24 bundle, pages 98 to 100.
On 31 January 2023, the applicant commenced this review proceeding. The application before me is limited to a review of the respondent's decision in relation to condition 23.[16]
[16] Respondent's SIFC, para 7; Applicant's SIFC, para 1.
The proposed amendments as set out in para (a) and (c) of [14] above are not in contention. That is, on the basis that the respondent agrees with (a) which proposes to reduce the size of the digital sign and introduce louvres then (c) is amended in accordance with Main Roads recommendation regarding revised condition 28 as follows:[17]
[17] Respondent's SIFC, para 8; Applicant's SIFC, para 1.
28(a)Minimum dwell time of any one advertisement shall not be less than 40 seconds.
28(b)Illumination of the sign must not exceed:
1.6000cd/m² during the day.
2.600cd/m² between dawn /dusk.
3.300cd/m² between sunset and sunrise.
28(d)That the sign does not contain a transition time from one display to another that exceeds 0.1 seconds.
28(j)Lighting is controlled in accordance with AS 4282:2019 Control of the obtrusive effects of outdoor lighting.

Issues for determination

The following issues arise for determination:
1)Does the deletion of condition 23 (or amendment) amount to 'an extension of a use within the boundary of the lot which does not change the predominant use of the lot'?
2)Is the proposed change precipitated by the deletion of condition 23 consistent with the objectives of the Mixed Business zone?
3)Is the prohibition on all third party advertisements set out in cl 3.1, 3.3 and cl 6.1.1 of the City of Belmont Local Planning Policy No.12 – Advertisement Signs (LPP 12) consistent with the City of Belmont Local Planning Scheme No. 15 (LPS 15 or Scheme)?
4)Has the prohibition on all third party advertisements set out in cl 3.1, 3.3 and 6.1.1 of LPP 12 been consistently applied?
5)Does the prohibition on all third party advertisements set out in cl 3.1, 3.3 and 6.1.1 of LPP 12 facilitate a planning purpose or an ulterior purpose?
6)Should the deletion of condition 23 be approved having regard to:
a)whether the amendment is compatible with the objectives of the Mixed Business zone under LPS 15?
b)whether the amendment would adversely impact the existing or future amenity of the locality?
c)whether the amendment is compatible with its setting?
d)the history of the subject land where the development is to be located?
e)comments or submissions received by Main Roads?
f)whether the amendment is consistent with LPP 12, and to the extent that the amendment is not consistent with LPP 12, whether there is a cogent reason to depart from LPP 12?
g)whether the amendment would set an undesirable precedent?

The conduct of the hearing and expert evidence

The applicant relied on the expert planning evidence of Mr Ben Doyle, a Director at Planning Solutions (Aust) Pty Ltd (Planning Solutions). The respondent called Mr Wilmot Loh, who is employed as Manager, Planning Services for the City of Belmont (City). Mr Doyle and Mr Loh both filed witness statements with the Tribunal which they adopted as their evidence-in-chief and were crossexamined. Mr Doyle also prepared a supplementary witness statement.
The Tribunal had the benefit of a site view which was attended by the parties' legal representatives and the expert planning witnesses.

The Tribunal's review jurisdiction

By reason of s 17 of the State Administration Tribunal Act 2004 (WA) (SAT Act), the application falls within the Tribunal's review jurisdiction. In exercising the Tribunal's review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the Planning and Development Act 2005 (WA) (PD Act) (the latter referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction which may modify the operation of the SAT Act in relation to the matter).[18]
[18] SAT Act, s 18.
The Tribunal's review of the respondent's decision to impose condition 23 is by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the information and evidence before it.[19] Where a condition of a development approval is the subject of the review, the Tribunal will not generally embark on a review of the respondent's decision to approve the proposed development.[20] However, the Tribunal is empowered to impose new conditions on the approval.[21]
[19] SAT Act, s 27.
[20] Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10]; Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266 at [274].
[21] See Austral Bricks (WA) Pty Ltd and Shire of Serpentine Jarrahdale [2023] WASAT 40.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[22] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[23]
[22] SAT Act, s 32(2)(a).
[23] SAT Act, s 32(1).
The Tribunal is not limited to the material before the respondent as the original decision-maker but may consider new material.[24] The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.[25] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside, affirm or vary the original decision.

The planning framework

[24] SAT Act, s 27(1).

[25] SAT Act, s 32(2)(b).

The subject land is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Mixed Business' under LPS 15.[26] Great Eastern Highway, which abuts the northern boundary of the subject land, is reserved as 'Primary Regional Road' under the MRS.[27] Land on the opposite side of Great Eastern Highway to the subject land is zoned 'Mixed Use' under LPS 15.[28]
[26] Respondent's s 24 bundle, document 22.
[27] Respondent's s 24 bundle, document 15.
[28] Respondent's SIFC, para 39; Applicant's SIFC, para 4.
The relevant planning framework includes, but is not limited to, the following:
1)MRS;
2)LPS 15;
3)LPS Regulations;
4)Sch 2 to the LPS Regulations (Deemed Provisions); and
5)LPP 12.

In determining the application, I must have due regard[29] to the matters listed in cl 67(2) of the Deemed Provisions to the extent, in my opinion, those matters are relevant to the development that is the subject of the application.

The Tribunal's consideration

[29] 'Due regard' means that the Tribunal must give active or positive consideration to the matters listed in s 67(2) of the Deemed Provisions, to the extent that they apply or are relevant: See Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371 at [70] - [76]; Reid v City of Gosnells [2023] WASC 48 at [42] per Archer J.

There is no dispute, and I find, that the proposed change precipitated by the deletion of condition 23 is an 'unlisted use' (or an innominate use) under LPS 15 because 'Advertisement'[30] is not a use specifically referred to in the Zoning Table and cannot reasonably be determined as falling within a use class referred to in the Zoning Table.[31]
[30] See the definition of 'advertisement' in cl 1 of the Deemed Provisions.
[31] ts 141, 29 June 2023; ts 158, 29 June 2023.
Clause 3.4.2 of LPS 15 aids in interpreting the Zoning Table where a use is not listed. Clause 3.4.2 of LPS 15 provides:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may:
a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures contained in Clause 64 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2; or
c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
The respondent says that the appropriate approach is to consider whether the use of the digital sign for third party advertising may be consistent with the objective of the Mixed Business zone for the purposes of cl 3.4.2(b) of LPS 15, which is a matter that should be determined on its substantive merits having regard to the established planning framework.[32]
[32] ts 142, 29 June 2023.
The applicant says that the application is consistent with the objective of the Mixed Business zone for the purposes of cl 3.4.2(a) of LPS 15 and, therefore, is a permitted use.[33]
[33] Applicant's SIFC, paras 14 and 15.
The objective of the Mixed Business zone in cl 3.2 of LPS 15 is:
The 'Mixed Business' zone is intended to allow for the development of a mix of varied but compatible business uses such as offices, showrooms, amusement centres, eating establishments and appropriate industrial activities which do not generate nuisances detrimental to the amenity of the district or to the health, welfare and safety of residents and workforce. Uses can mix on adjacent lots of land or on the same lot and uses may mix horizontally on the same or separate lots and/or vertically in buildings. Buildings should be of a high standard of architectural design set in pleasant garden surrounds with limited vehicular access from properties to primary roads.
Before determining whether application is consistent with the objective of the Mixed Business zone, I will first consider whether the change precipitated by the deletion of condition 23 is an extension of a use on the subject land which does not change the predominant use of the land pursuant to cl 3.3.3(c) of LPS 15.

Does the deletion of condition 23 amount to 'an extension of a use within the boundary of the lot which does not change the predominant use of the lot'?

Clause 3.3.3 of LPS 15 provides that a change in the use of land from one use to another is permitted in certain circumstances. Relevantly, cl 3.3.3(c) of LPS 15 provides that a change of use is permitted where the change is an extension of a use within the boundary of the lot which does not change the predominant use of the lot.
Clause 3.3.3 of LPS 15 provides:
A change in the use of land from one use to another is permitted if:
a)the local government has exercised its discretion by granting Development Approval;
b)the change is to a use which is designated with the symbol 'P' in the cross reference to that zone in the Zoning Table and the proposed use complies with all the relevant development standards and any requirements of the Scheme;
c)the change is an extension of a use within the boundary of the lot which does not change the predominant use of the lot; or
d)the change is to an incidental use that does not change the predominant use of the land.
Note:
1.The Development Approval of the local government is required for the development of land in addition to any approval granted for the use of land. In normal circumstances one application is made for both the use and development of land.
2.The local government will not refuse a 'P' use because of the unsuitability of the use for the zone but may impose conditions on the use of the land to comply with any relevant development standards or requirements of the Scheme, and may refuse or impose conditions on any development of the land.
3.In considering a 'D' or 'A' use, the local government will have regard to the matters set out in Clause 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2;
4.The local government must refuse to approve any 'X' use of land. Approval to an 'X' use of land may only proceed by way of an amendment to the Scheme.
For the purposes of cl 3.3.3 of LPS 15, the expression 'predominant use' is defined in Sch 1 to LPS 15 to mean 'the primary use of the premises to which all other uses carried out on the premises are incidental'. The expression 'incidental use' is defined in Sch 1 to LPS 15 to mean, 'a use of premises which is consequent on, or naturally attaching, appertaining or relating to, the predominant use'.[34] These definitions reflect an established planning law concept that:[35]
… an incidental, ancillary or subordinate activity to a dominant land use is not in itself a land use requiring development approval, but rather is 'considered to be part and parcel of the primary use': … (citation omitted).
[34] The expression 'incidental use' has the same meaning in cl 1 of the Deemed Provisions.
[35] G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9; (2018) 94 SR (WA) 36 at [12] - [25]. See also Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at [161]; Lizzio v Ryde Municipal Council (1983) 155 CLR 211.
A site-specific sign is considered to be an incidental, ancillary or subordinate activity that is 'part and parcel of the primary use'. In Claude Neon Limited v City of Perth[36] (Claude Neon) Kennedy J stated:[37]
If a sign were to be erected upon premises advertising the name of a business being carried out on those premises, or when the business is that of retailing, advertising the products sold in the business, such use of the land would not be a use separate from the primary use of the land … If, however, as is proposed here, the advertising is commercial in nature, advertising, for example, businesses other than such as are carried on at the premises, the position seems to me to be otherwise. It would then constitute an independent use.
[36] Claude Neon Limited v City of Perth (Unreported, WASC, Library No 6812, 31 July 1987) (Claude Neon).
[37] Claude Neon at page 16.
Because the digital sign is already approved, the applicant contends that the change contemplated by deleting condition 23 represents an extension of the existing approved use of 'Advertisement' and does not change the predominant use of the subject land which is a showroom/retail use.[38] The applicant observed that recent decisions of the Tribunal where the relevant 'Advertisement' use was found to be a separate and distinct use of land dealt with newly proposed signs and not an existing sign.[39] Consequently, it is the applicant's position that the application, the subject of this review proceeding, should be considered a 'permitted use' under cl 3.3.3(c) of LPS 15 and should not be refused.[40] Any conditions imposed on the existing approval, the applicant says, should be limited to controlling the physical development contemplated by the application, such as the imposition of the operational conditions recommended by Main Roads.[41]
[38] Applicant's SIFC, para 10.
[39] ts 157, 29 June 2023.
[40] Applicant's SIFC, paras 10 - 11.
[41] Applicant's SIFC, para 11.
It is the respondent's position that cl 3.3.3(c) of LPS 15 is not applicable to the application because the deletion of condition 23 is not an extension of a use as described in that clause.[42] The respondent says that the signage (including the digital sign) that has been approved on the subject land as part of the signage strategy is either a component of or ancillary or incidental to the predominant use of the land. It is not an independent use for which approval has been granted.[43]

Findings – applicability of cl 3.3.3(c)

[42] ts 139, 29 June 2023.

[43] ts 139, 29 June 2023.

I am not persuaded that cl 3.3.3(c) of LPS 15 applies to the application before me.
The deletion of condition 23 would have the effect of permitting the digital sign to display third party advertising, which is an independent use of land.[44] Third party advertising is an independent use because the advertising of businesses or products that are not related to activities carried out on the subject land could not fairly be described as being subsidiary or incidental to the predominant or primary use of the land as a showroom/retail use. Whilst I acknowledge that the use of the digital sign for site-specific advertising is already permitted on the subject land as part of the primary or predominant use of the land, I find that a change from site-specific advertising to third party advertising is not an extension of an existing approved use for the purposes of cl 3.3.3(c) of LPS 15 but, rather, is a separate and distinct use that requires approval.
[44] Claude Neon at [16]. See also Caratti Holding Co Pty Ltd and City of Belmont [2021] WASAT 105 at [37]; Carrooda Pty Ltd and City of Gosnells [2022] WASAT 15 at [26]; WA Billboards and City of Belmont [2023] WASAT 42 (WA Billboards) at [19].
Consequently, for these reasons, I find that the change precipitated by the deletion of condition 23 does not amount to 'an extension of a use within the boundary of the lot which does not change the predominant use of the lot' for the purposes of cl 3.3.3(c) of LPS 15.

Is the proposed change precipitated by the deletion of condition 23 consistent with the objective of the Mixed Business zone?

As already stated, 'Advertisement' is a use not listed in the LPS 15 Zoning Table. Consequently, the permissibility of the use is determined by reference to cl 3.4.2 of LPS 15, specifically, whether the use is, may be, or is not, consistent with the objectives of the Mixed Business zone. Before determining the extent to which the digital sign is consistent with the objective of the Mixed Business zone, I will consider the meaning of the expression 'consistent with' having regard to the principles that apply to the interpretation of local planning schemes.[45]
[45] See Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160 at [31] - [32] per Pritchard J, cited in Reid v City of Gosnells [2023] WASC 48 at [22] per Archer J.
The expression 'consistent with' is not defined in LPS 15. Unless the context otherwise requires, words or expressions used in LPS 15 have the same meaning as they have in the PD Act, or if they are not defined in the PD Act, they have the meaning set out in the Dictionary in Sch 1 to LPS 15 (Dictionary) or the State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes).[46] In the circumstances of this case, if there is a conflict between the meaning of words or expressions in the Dictionary and the R-Codes, the definition in the Dictionary prevails.[47]
[46] LPS 15, cl 1.7.1.
[47] LPS 15, cl 1.7.2.
The expression 'consistent with' is not defined in the PD Act, the R‑Codes or the Dictionary. Consequently, the expression bears its ordinary and natural meaning.[48]
[48] See Phillips and Shire of Mundaring [2009] WASAT 193 at [20] - [21].
According to the Macquarie Dictionary Online, the meaning of the expression 'consistent' includes 'agreeing or accordant; compatible; not self-opposed or self-contradictory'.
The expression 'compatible' is defined in the Macquarie Dictionary Online, relevantly, as:
adjective 1. capable of existing together in harmony.
2. capable of orderly, efficient integration with other elements in a system.
…
To be consistent with the objective of the Mixed Business zone, it follows that the change precipitated by the deletion of condition 23 must be in accordance with or compatible with the objective of the zone. However, it is not necessary that the amendment promotes or is ancillary to the zone objective for it to be consistent with the objective.[49]
[49] WA Timber Supplies Pty Ltd and City of Swan [2020] WASAT 153 (WA Timber Supplies) at [136] ‑ [137]; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at [192].
A zone objective has full force and effect as if enacted by the PD Act.[50] It should be read and applied in a broad fashion and consistent with its planning purpose, but not pedantically.[51] When assessing a use against a zone objective, the objective should not be considered lofty or aspirational in nature because it is 'an important expression of what planning outcomes are contemplated by the planning scheme in the relevant zone'.[52] Whether a use is consistent with a zone objective is an evaluative judgment and is not intended to be the product of a fine‑grained analysis.[53]
[50] See PD Act, s 87(4); See also, Warr and Town of Cambridge [2020] WASAT 126 (Warr) at [29].
[51] Warr at [68].
[52] WA Timber Supplies at [146].
[53] Warr at [68].
As already stated, the applicant contends that third party advertising is consistent with the objective of the Mixed Business zone and, consequently, is a permitted use under cl 3.4.2(a) of LPS 15.[54]
[54] Applicant's SIFC, paras 14 and 15.
The applicant relied on the evidence of Mr Doyle in support of its position. Mr Doyle considered that the display of third party advertising on the digital sign is capable of existing in harmony with other businesses in the Mixed Business zone because it will not affect the function, viability, or operation of any of the businesses on the subject land or in the surrounding area.[55] He observed that the amendment has no impact on the effectiveness of on-site signage viewed by motorists as they approach and access the centre. This is because vehicles travelling east along Great Eastern Highway cannot turn into the subject land either directly or via Daly Street or Hargreaves Street, due to the solid median strip along Great Eastern Highway. As such, to access the centre, a driver must approach in a westbound direction along Great Eastern Highway. Mr Doyle observed that the digital sign is not visible to motorists approaching in that direction.[56] Consequently, it is Mr Doyle's opinion that the proposed change precipitated by the deletion of condition 23 has no effect on the compatibility of the digital sign with the businesses on the subject land and in the surrounding area.[57]
[55] Witness statement of Ben Doyle dated 2 June 2023, para 63.
[56] Witness statement of Ben Doyle dated 2 June 2023, para 62.
[57] Witness statement of Ben Doyle dated 2 June 2023, para 63.
The respondent says that the objective of the Mixed Business zone evidences a clear intention to allow for development of a mix of varied but compatible business uses. It is the respondent's contention that the proposed third party advertising content would be contrary to this intention because it would not be linked or related to the existing businesses within the centre.[58] The respondent further contends that the lack of association of the content of the digital sign with the existing businesses in the centre may undermine the exposure of those businesses and detract from the effectiveness of other site-specific signage.[59]
[58] Respondent's SIFC at paras 54 and 58.
[59] Respondent's SIFC at para 55.
In support of its position, the respondent relied on the evidence of Mr Loh. In Mr Loh's opinion, third party advertising cannot conclusively be determined to be consistent with the objective of the Mixed Business zone because it does not categorically align with the office, showroom, amusement centre, eating establishments and appropriate industrial land uses referred to in the objective.[60] Whilst Mr Loh considered that there are no obvious or distinct factors to establish that third party advertising is conclusively inconsistent with the objective of the Mixed Business zone, he said that it is a question of fact and degree to be determined on the merits of the application.[61]

Findings – consistency with objective of Mixed Business zone

[60] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, para 58.

[61] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, para 59.

It is clear from the terms of cl 3.4.2 of LPS 15 that zone objectives are intended to have a central role in determining whether a use not listed should be approved.
I find, based on the evidence of Mr Doyle which I accept, that the deletion of condition 23 is unlikely to affect the function, viability or operation of businesses on the subject land. This is because the digital sign is not visible to motorists approaching the centre in a westerly direction and vehicles travelling east along Great Eastern Highway, from where the digital sign is visible, cannot turn into the centre from the Highway. However, I do not accept Mr Doyle's evidence that the amendment will have no impact on other businesses in the Mixed Business zone.
Based on the evidence of Mr Loh, which I accept, I find that the change precipitated by the amendment may add to the cognitive load of motorists travelling east along Great Eastern Highway who are trying to identify a particular place or property.[62] I accept the evidence of Mr Loh, and I find, that the function or purpose of site‑specific signage is to identify the location of businesses and provide essential information about the products and services offered by those businesses.[63] I further find, based on the evidence of Mr Loh which I accept, that the proposed change precipitated by the deletion of condition 23 is likely to draw attention away from site-specific signage and, consequently, may affect the function, viability or operation of businesses in the Mixed Business zone.[64]
[62] ts 99, ts 105, ts 111, 29 June 2023.
[63] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, para 79; ts 38, 28 June 2023.
[64] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at paras 61 and 79.
Notably, however, Mr Loh was unable to identify any obvious or distinct factor that made third party advertising conclusively inconsistent with the objective of the Mixed Business zone.
For these reasons, I find that the proposed change precipitated by the deletion of condition 23 may be consistent with the objective of the Mixed Business zone for the purposes of cl 3.4.2(b) of LPS 15.

Is the prohibition on third party advertising in LPP 12 consistent with LPS 15?

LPP 12 applies to all advertising signs visible from the public realm within the Scheme Area.[65]
[65] LPP 12, cl 1; Respondent's s 24 bundle, page 678.
The general development requirements for advertising signs are set out in cl 6 of LPP 12 and include the requirement that: 'Advertisement signs only advertise services and products available on the premises to which it relates. Third party advertising is not permitted'.[66]
[66] LPP 12, cl 6.1.1.

Clause 2.4 of LPP 12 relevantly provides:
Advertisement signs that do not comply with the criteria listed in Column B of Table 1 and the Development Requirements listed in Part 6 of this Policy, will be assessed against the objectives outlined in Part 3 of this Policy. Advertisement signs that do not comply with the objectives are deemed unacceptable and will not be supported unless exceptional circumstances exist.
Clause 3 of LPP 12 lists sets out the objectives of the policy as follows:
3.1Ensure that advertisement signs are appropriate for their location, relate to the land and/or buildings for which they are placed, and do not adversely impact on the amenity of the surrounding area.
3.2Ensure advertising signage is of a scale appropriate to buildings, lot size and lot frontage/s of the site relevant to the application.
3.3Ensure that advertisement signs only advertise services offered and/or products produced, sold, and/or manufactured on the land or building/s related to the approved use/s taking place.
3.4To ensure advertisement signs do not pose an unnecessary risk to the safety of people and vehicles by virtue of their location, design, use and function.
3.5To ensure that advertising signs are simple, clear, easy to read and maintained to a high standard.
3.6Protect the cultural heritage significance of particular places and/or areas.
3.7To provide for the rationalisation of signage on properties with multiple advertising requirements.
(Emphasis added).
LPP 12 provides that third party advertisements are not permitted within the Scheme Area.[67] The applicant contends that LPP 12 is inconsistent with cl 3.3.3(a) and 3.4.2(a) of LPS 15, pursuant to which the display of such advertisements (as a use not listed) is 'permitted'.[68] Consequently, it is the applicant's position that LPP 12 must be read down to the extent of the inconsistency as required by cl 3(5) of the Deemed Provisions.[69] In the alternative, the applicant contends that if LPP 12 does apply then there are exceptional circumstances or cogent reasons to depart from the policy position in this particular case.[70] The applicant identified a number of reasons that justify a departure from the application of LPP 12 as follows:[71]
1)the unique location of the commercial development and its surrounds;
2)the extreme prevalence of signage elsewhere in the locality;[72]
3)the lack of access to the subject land from Great Eastern Highway (those motorists travelling in an easterly direction who are able to see the digital sign are unable to access the centre without doing a U-turn);[73]
4)the very broad range of goods, products, businesses, and suppliers etc that can already advertise on the digital sign which is unique to Great Eastern Highway;[74]
5)the provisions of LPP 12 have not been consistently applied;[75]
6)the fact that there are very few locations along Great Eastern Highway, or on any State Road, where all of the criteria set out in the Main Roads Policy and Application Guidelines for Advertising Signs (Main Roads policy),[76] can be met (the criteria can be met in the circumstances of this review proceeding subject to the imposition of the operating conditions as recommended and supported by Main Roads).
7)the fact that the Minister has recently refused an amendment to LPS 15 that would have the effect of prohibiting third party advertisements on all zoned land within the Scheme Area (Amendment 16).
[67] See LPP 12, cl 3.1, cl 3.3, and cl 6.1.1.
[68] Applicant's SIFC, para 17.
[69] Applicant's SIFC, para 18.
[70] ts 168, 29 June 2023.
[71] Applicant's SIFC, para 20.
[72] ts 172, 29 June 2023.
[73] ts 172, 29 June 2023.
[74] ts 173, 29 June 2023.
[75] ts 173, 29 June 2023.
[76] Main Roads Policy and Application Guidelines for Advertising Signs within and beyond State Road Reserves, Main Roads Western Australia, 8 September 2023.
The respondent says that LPP 12 should be given significant weight because it is based on sound town planning principles, is a public policy (not secret), was adopted following public consultation, and was reviewed by the City in 2019 and, therefore, is a current policy.[77] Further, the respondent says that cl 2.4 of LPP 12 provides that advertising signs that do not comply with the objectives of LPP 12 are only allowed in exceptional circumstances. It is the respondent's position that there are no exceptional circumstances or cogent reasons to depart from LPP 12.[78]

Findings – consistency of LPP 12 with LPS 15

[77] Respondent's SIFC, para 64. The current version of LPP 12 is dated 27 July 2021.

[78] Respondent's SIFC, para 67.

In making a determination under LPS 15, cl 3(5) of the Deemed Provisions provides that the respondent (and the Tribunal on review) must have regard to each local planning policy to the extent that the policy is consistent with the Scheme. The applicant contends that LPP 12 is inconsistent with the Scheme because cl 3.4.2(a) of LPS 15 provides that an 'Advertisement' use is permissible if it is consistent with the objective of the relevant zone in which the land the subject of the application is located. The applicant says that, applying cl 3(5) of the Deemed Provisions, LPP 12 must be read down to the extent of the inconsistency with the Scheme.
I do not accept the applicant's position on the operation of cl 3(5) of the Deemed Provisions. I find that cl 3.4.2(a) of LPS 15 cannot be read in isolation but must be considered in the context of the other provisions of the Scheme. Specifically, cl 77(2)(a) of the Deemed Provisions requires that an application to amend a development approval is to be dealt with as if it were an application for development approval. Consequently, I must give due regard to the matters listed in cl 67(2) of the Deemed Provisions to the extent that I consider them relevant, which includes consideration of any local planning policy for the Scheme Area. I consider that LPP 12 is relevant to the application before me because it provides general development requirements and deemed-to-comply provisions for all types of advertising signs within the Scheme Area.
Applying LPP 12, I find that proposed change precipitated by the deletion of condition 23 is inconsistent with cl 6.1.1 of LPP 12 and the objectives in cl 3.1 and cl 3.3 of LPP 12 because it does not entirely relate to the land and/or building on which it is placed, it does not only advertise services offered and/or products produced, sold and/or manufactured on the land or buildings related to the approved use/s taking place, and it will contain third party advertising content. There was no dispute, and I find, that the amendment is consistent with the remaining objectives of LPP 12.
The question that arises is whether there are any exceptional circumstances or cogent reasons to depart from LPP 12 (to the extent that it purports to prohibit third party advertising). Before answering that question, I will consider whether the prohibition on third party advertising in LPP 12 has been consistently applied.

Has the prohibition on third party advertising in LPP 12 been consistently applied?

The applicant contends that the blanket prohibition on third party advertising has not been consistently applied by the respondent, as evinced by its own significant inventory of hundreds of third party advertisements on reserved and 'no zone' land throughout the Scheme Area.[79]
[79] Applicant's SIFC, para 26.
Clause 60 of the Deemed Provisions provides that all development within the Scheme Area requires approval unless exempt. The exemptions from obtaining development approval are set out in cl 61 of the Deemed Provisions, Sch 5 to LPS 15, and local planning policies of the respondent. Whilst Sch 5 to LPS 15 provides an exemption for certain 'advertisements' on public places and reserves that relate to the functions of the respondent, the applicant observes that there is no exemption for advertisements which display third party content as defined in LPP 12.[80]
[80] Applicant's SIFC, para 25.
The respondent contends that LPP 12 has been consistently applied on private land and in respect of the subject land. The respondent relied on records adduced by Mr Loh showing that over the past three years development applications to the City for large format third party advertising along Great Eastern Highway have been refused.[81] The respondent further contends that it is common for local governments to have contracts with private advertising companies for the supply, installation and maintenance of rubbish bins, directional signs, bus shelters and other street furniture.[82] The respondent says that the City's programme for the provision of street furniture in return for third party advertising is a longstanding arrangement.[83]

Findings – application of LPP 12 by City

[81] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, para 134 and Attachment 7.

[82] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, para 138 and Attachment 17.

[83] ts 146, 29 June 2023.

I accept the evidence of Mr Loh, and I find, that LPP 12 has been consistently applied by the City in respect of development applications for the display of large format third party advertising signs.
Both Mr Doyle and Mr Loh agreed, and I find, that there are only two bus shelters on Great Eastern Highway within the locality that display third party advertising.[84] The experts also agreed, and I find, that the advertisements on the bus shelters are less visually prominent than the digital sign and are intended to be viewed by pedestrians at ground level and much closer.[85] Based on the evidence of Mr Loh, which I accept, I find that the advertisements on the bus shelters are of a small scale, being approximately 2.8m² in area.[86]
[84] ts 60, 29 June 2023.
[85] ts 61 - 62, 29 June 2023.
[86] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, para 143.
There was no dispute, and I find, that the City's programme for the provision of street furniture in return for third party advertising has occurred since at least the 1990s but possibly earlier.[87] I further find that LPP 12 does not exclude from its application third party advertising on rubbish bins, directional signs, bus shelters and street furniture. However, the City has permitted third party advertising on these structures in exchange for their supply, installation, and maintenance for the benefit of the community.
[87] ts 61, 29 June 2023.
Given these findings, I am not satisfied that LPP 12 has been consistently applied by the City in respect of third party advertising because it is permitted on community infrastructure in the locality and Scheme Area. However, as already stated, I am satisfied that it has been consistently applied by the City in respect of applications for the display of large format third party advertising signs.

Does the prohibition on third party advertising in LPP 12 facilitate a planning purpose or an ulterior purpose?

It is the respondent's position that cl 3.1, cl 3.3 and cl 6.1.1 of LPP 12 facilitate a planning purpose and not an ulterior purpose.[88] In support of its position the respondent relied on the evidence of Mr Loh. In Mr Loh's opinion, the planning purpose of these provisions is to ensure that signage has a site-specific function which is to provide information to visitors or passers-by about the location of services and products sold on the subject land.[89] Relying on the evidence of Mr Loh, the respondent says that the prohibition on third party advertising supports the objectives of LPP 12 to avoid excessive proliferation of signage and maintain the existing amenity of the locality.[90]
[88] ts 147 - 148, 29 June 2023.
[89] ts 38, 28 June 2023.
[90] ts 63 - 64, 28 June 2023; ts 147, 29 June 2023.
The applicant contends that there is no material difference in the amenity impacts between signs displaying content related to the occupants of a premises and third party advertising.[91] To the extent that there is some change in terms of visual clutter, due to the extended range of content that might be displayed by the digital sign, the applicant says that the degree of impact is minimal.[92] In support of its position, the applicant relied on the evidence of Mr Doyle who was unable to identify the planning purpose behind the policy objective in LPP 12 that signage only relate to services and products on a site. Under cross-examination, Mr Doyle acknowledged that visual amenity is a valid planning consideration, and that avoiding excessive proliferation of signage is also a valid planning consideration.[93] However, Mr Doyle is of the opinion that changing the content (in terms of companies or products) that can be displayed on the digital sign has no impact on amenity and, in terms of proliferation, the application does not propose any additional signage because it is already an approved sign.[94]
[91] Applicant's SIFC, para 27.
[92] ts 163, 29 June 2023.
[93] ts 63, 28 June 2023.
[94] ts 63, 28 June 2023.
The applicant further contends that cl 3.1, cl 3.3 and cl 6.1.1 of LPP 12, which purportedly prohibit third party advertising, are materially the same as those proposed by Amendment 16 which was refused by the Minister.[95]

Findings – purpose of LPP 12

[95] Applicant's SIFC, para 28.

The respondent says that where a policy is based on proper planning principles and capable of application, as it is in this case, the policy ought to be applied as intended regardless of whether better models of regulation may exist or could be imagined.[96] Whilst I accept this as a general proposition, I note that a planning policy cannot be inflexibly applied and may be departed from where there is a cogent reason or sound basis to do so. I accept the respondent's position that LPS 12 facilitates a planning purpose as it relates to third party advertising (and not an ulterior purpose) for the reasons that follow.
[96] ts 148, 29 June 2023.
First, previous decisions of the Tribunal have found a difference in the amenity impact of general commercial signs compared with signs relating to products or services available from a site.[97] Consequently, I am satisfied that planning policies that expressly or impliedly address the difference in the amenity impact between third party advertising and commercial signs by prohibiting or controlling advertisements that do not relate to services and products available from a site are informed by a planning purpose.[98] Second, where a policy has an identified planning purpose, it is not for the Tribunal to investigate wider policy issues or challenge the process that led to the assumptions that underlay that policy position.[99]
[97] Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [71].
[98] See Cerini and City of Vincent [2023] WASAT 74 at [89].
[99] Goldfield Village and City of Kalgoorlie-Boulder [2023] WASAT 6 at [264] - [265].
For these reasons, I find that the prohibition on third party advertising in LPP 12 facilitates a planning purpose and not an ulterior purpose. Further, having regard to the purpose of LPP 12 as it relates to third party advertising, I do not accept Mr Doyle's evidence that changing the content that can be displayed on the digital sign (to include third party advertisements) has no impact on amenity.
I will next consider whether the deletion of condition 23 should be approved having regard to the matters in cl 67(2) of the Deemed Provisions that I consider relevant to the determination of the application. For the purposes of this assessment, I have already addressed above whether the amendment is consistent with LPP 12.

Will the amendment adversely impact the existing or future amenity of the locality?

I must, in considering the application, have due regard to the amenity of the locality including, relevantly, the character of the locality pursuant to cl 67(2)(n) of the Deemed Provisions. The term 'amenity' is defined in cl 1 of the Deemed Provisions to mean 'all those factors which combine to form the character of an area and include the present and likely future amenity'.
Before determining whether the deletion of condition 23 will adversely impact the existing or future amenity of the locality, I will next identify the character of the locality as delineated and characterised by the expert witnesses.

The locality

In Ridgecity Holdings Pty Ltd and City of Albany (Ridgecity), the Tribunal considered the concept of locality:[100]
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
[100] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) at [42].
For the purposes of an amenity assessment, the applicant says that the locality represents the area which is impacted by the proposed development, being the actual locations from which the digital sign can be viewed. According to the applicant, the locality in the circumstances of this case extends to the area which impacts upon the proposed development, being the backdrop to the digital sign. The applicant's position is that once you can no longer see the digital sign, you are no longer in the locality.[101]
[101] ts 161, 29 June 2023.
In support of its position, the applicant relied on the evidence of Mr Doyle. Mr Doyle described the locality as comprising a primary area and a secondary area.[102] In Mr Doyle's opinion, the primary area is the area immediately surrounding the digital sign from which the message on the sign will be visible. Mr Doyle described the secondary area is that area which forms part of the backdrop to the viewing of the digital sign and inform a person's perception of it.
[102] Witness statement of Ben Doyle dated 2 June 2023 at para 22.
Mr Loh's delineation of the locality was more expansive. Mr Loh considered the locality to be the 'Mixed Business' and 'Mixed Use' zoned land, and the 'Public Purpose' reserve (Belmont Primary School) adjacent to Great Eastern Highway, extending from 150 and 213 Great Eastern Highway to the west to 210 and 247 Great Eastern Highway to the east of the subject land.[103] Mr Loh explained why he had chosen to delineate the locality in this manner:[104]
… if I were wanting to visit a business and I was instructed that it's located along Great Eastern Highway after Belgravia Street but before Hardey Road, then I would be relying on signs and street numbers to locate where I want to be. So that's why I've included that locality.
[103] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at paras 20 - 30.
[104] ts 39, 28 June 2023.
With the exception of developments at 150 and 152 Great Eastern Highway, which are predominantly residential, and 213 Great Eastern Highway, which is occupied by Belmont Primary School, Mr Loh characterised the locality as business uses, specifically offices, fast food outlets, restaurants, service stations, motor vehicle repair, car wash, showrooms, and warehouses.[105]
[105] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, paras 66 - 67.
Based on the evidence of Mr Loh, which I accept, I find that the locality is characterised by a mix of business uses and a large number of existing site-specific signage related to those businesses.[106] Mr Loh's evidence on the character of the locality is not inconsistent with that of Mr Doyle who observed:[107]
In all instances where the sign is visible, and more particularly from locations where the messages on the sign are likely to be readable, the backdrop to the view includes commercial properties and significant advertisements fronting GEH east of the site. This includes the ability to view advertisements for Zambrero, Guzman Y Gomez (including digital signage) and 7-Eleven on the northern side of GEH, and McDonald's, The Good Guys, Officeworks, Autobarn, Spotlight, Beacon Lighting and Pet Bar on the southern side of GEH.
[106] ts 40, 28 June 2023; ts 113, 29 June 2023.
[107] Witness statement of Ben Doyle dated 2 June 2023 at para 26(h).

I accept Mr Loh's evidence, and I find, that the locality is not limited to the area within which the digital sign can be viewed. I am satisfied that the locality, as delineated by Mr Loh, provides a suitable basis to assess the impact of the digital sign on the existing and likely future character of the area in which the sign is located. This is particularly the case having regard to the large number of existing site-specific signs that front Great Eastern Highway in the vicinity of the subject land.

The amenity of the locality

Mr Loh considered that the proposed change to the digital sign precipitated by the deletion of condition 23 is likely to undermine the existing and future amenity of the locality.[108] In Mr Loh's opinion, the display of third party advertising is 'an additional layer of proliferation that impacts amenity'.[109] If condition 23 was deleted, Mr Loh considers that the digital sign would add visual clutter because the display of third party advertising propagates unsolicited information that does not serve the purpose of signage set out in LPP 12, which is to provide essential information for products, business or services located on the subject land.[110] Mr Loh observed that there is already a large amount of signage in the locality and that the digital sign (if permitted to display third party advertising) would become a prominent characteristic, adding to the cognitive load of a person trying to identify a particular place or property.[111] He also observed that there are no other large scale third party signs mounted on top of a building on Great Eastern Highway.[112]
[108] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023, paras 96 and 108.
[109] ts 64, 28 June 2023.
[110] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 96; ts 81, 28 June 2023.
[111] ts 99, ts 105, ts 111, 29 June 2023.
[112] ts 136, 29 June 2023.
Because the digital sign is already approved, Mr Doyle considered that it is, effectively, an element of the existing and likely future amenity of the locality.[113] For this reason, Mr Doyle is of the opinion that the digital sign will not contribute to the proliferation of signage in the locality.[114] Mr Doyle observed that due to the businesses currently operating from the subject land, there is a wide range of products, services and businesses that may be displayed on the digital sign, in compliance with condition 23.[115] In Mr Doyle's opinion, the deletion of condition 23 will have no discernible effect on the existing or likely future amenity of the locality because it would essentially expand the range of messages that may be displayed.[116] Under cross‑examination, Mr Doyle acknowledged that the range of advertisements could be infinite.[117]

Findings – amenity

[113] Witness statement of Ben Doyle dated 2 June 2023 at para 94.

[114] ts 63, 28 June 2023.

[115] Witness statement of Ben Doyle dated 2 June 2023 at para 94.

[116] Witness statement of Ben Doyle dated 2 June 2023 at paras 94 - 96.

[117] ts 56, 28 June 2023.

The expert witnesses agreed, and I find, that the locality is a low‑amenity urban highway environment.[118] Mr Doyle stated that the future amenity of the locality is unlikely to change significantly, with the exception of the vacant site on the opposite side of Hargreaves Street which is approved for a showroom development.[119] However, Mr Loh referred to the City's draft Great Eastern Highway Urban Corridor Strategy which aims to deliver a high quality, multi-use corridor with improved transport choices and increased amenity supported by housing and jobs growth.[120] He noted that Perth and [email protected] million[121] identifies great Eastern Highway as an 'Urban Corridor' which 'should be examined for opportunities to increase residential and mixed-use densities'.[122] Mr Loh also observed that the City's draft Golden Gateway Local Structure Plan aims to encourage commercial uses at ground level with residential development to occupy at upper storeys.[123] Given the desired future amenity expressed in these policy documents, it is Mr Loh's opinion that third party signage on the subject land is likely to undermine the desired future amenity of the locality.[124]
[118] Witness statement of Ben Doyle dated 2 June 2023 at para 32.
[119] Witness statement of Ben Doyle dated 2 June 2023 at para 37.
[120] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 103.
[121] Perth and [email protected] million, Western Australian Planning Commission, March 2018.
[122] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 104.
[123] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 105.
[124] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 108.
Because the digital sign has not been installed, I am not persuaded that it is part of the existing amenity of the locality. I am also not persuaded, for the reasons already given, that the deletion of condition 23 will have no discernible effect on the amenity of the locality. Further, whilst I acknowledge that the draft policies referred to by Mr Loh were conceived some time ago, I find that together with Perth and [email protected] million, the strategic land use planning framework does signal a change in the amenity of Great Eastern Highway to a residential and mixed-use corridor. Consequently, I prefer the evidence of Mr Loh, and I find that the proposed change precipitated by the deletion of condition 23 will propagate unsolicited information which will add to the visual clutter of a locality where there is already a large amount of signage. The level of visual clutter from existing signage was not a fact disputed by the applicant.[125]
[125] ts 163, 29 June 2023.
For these reasons, I find that the amendment will have an adverse impact on the existing and likely future amenity of the locality.

Is the amendment compatible with its setting?

In considering the application, I must have due regard to the compatibility of the amendment with the desired future character of the setting in which the digital sign is located pursuant to cl 67(2)(m)(i) of the Deemed Provisions.
It is the respondent's position that third party advertising is incompatible with its setting, and future character, and other uses that may be contemplated in the Mixed Business zone because it will introduce a new form of advertising that has no connection with the businesses on the subject land.[126] In support of its position, the respondent relied on the evidence of Mr Loh. Mr Loh provided the following opinion:[127]
In my view, third party advertising on the [s]ubject [l]and is not compatible with its setting, future character and other uses that may be contemplated in the locality. I consider that the large number of existing site specific signs already undermine the effectiveness of signage in the locality, and under the current and future planning framework, it is likely that the number of businesses and consequently the demand for signage will continue to grow in the future. The addition of third party advertising in the locality will further undermine the functionality of site specific signage[.]
[126] Respondent's SIFC at para 59.
[127] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 61.
It is the applicant's position that the deletion of condition 23 does not preclude businesses or items which are available on the subject land from being displayed on the digital sign.[128] Whilst Mr Doyle did not specifically address the compatibility of the digital sign with its setting in his expert report, he adopted his evidence on amenity impacts in relation to this issue.[129]
[128] Applicant's SIFC at para 9(f).
[129] Witness statement of Ben Doyle dated 2 June 2023 at para 92; ts 65, 28 June 2023.
There was no dispute, and I find, that the locality features a variety of mixed business uses and associated signage. There was also no dispute, and I find, that with the exception of two bus shelters,[130] signage in the locality is designed to identify existing businesses. I further find, based on the evidence of Mr Loh which I accept, that the number of businesses in the locality, and hence the demand for site-specific signage, will continue to grow in the future. Having regard to the future character of the setting, I find, based on the evidence of Mr Loh which I accept, that third party advertising will undermine the function of site-specific signage in the locality which is to identify existing businesses and provide essential information about the products and services offered by those businesses. For these reasons, I find that the amendment is incompatible with the desired future character of the setting in which the digital sign is located.

Is the history of the subject land relevant?

[130] ts 62, 28 June 2023.

In considering the application, I must have due regard to the history of the subject land pursuant to cl 67(2)(m) of the Deemed Provisions.
As already stated, the applicant considers that the refusal of Amendment 16 is relevant to my determination, particularly in the context of the purported prohibition of third party advertising in LPP 12. Amendment 16 was initiated by the City and sought to prohibit third party advertising on all zoned land.[131] Ultimately, the Minister resolved to refuse Amendment 16.[132] In contrast, the respondent relied on the history of approvals that have been granted in respect of the subject land, including the sign on the blade wall that was approved as part of the signage strategy and was intended to display the development name 'Belmont West'. The respondent also observed that there was no history of third party advertising on the subject land.[133]
[131] Applicant's SIFC, para 7(b).
[132] Witness statement of Ben Doyle dated 2 June 2023 at para 98.
[133] ts 150, 29 June 2023.
I find that Amendment 16 was refused by the Minister and, therefore, is not part of the planning framework that historically applied to the subject land. At the final hearing, the applicant agreed that Amendment 16 is not relevant to my determination under cl 67(2)(m) of the Deemed Provisions.[134]
[134] ts 161, 29 June 2023.
There was no dispute, and I find that the original sign designed and approved for the blade wall was a landmark sign 'Belmont West'.[135] In oral evidence, Mr Loh confirmed that the 'Belmont West' sign was an architectural or landmark feature approved for the corner of the commercial development.[136] Having regard to the history of approvals at the subject land, I consider it is relevant, but not determinative, that the blade wall was intended to display the name of the centre 'Belmont West' and, consequently, to act as a landmark feature.

What weight should be given to comments or submissions received from Main Roads?

[135] Respondent's SIFC, para 19; Applicant's SIFC, para 4.

[136] ts 135, 29 June 2023.

By letter dated 1 December 2022, Main Roads advised the City that it had no objection to the deletion of condition 23.[137] Main Roads considered the application acceptable subject to certain operational conditions set out in its submission.[138]
[137] Respondent's s 24 bundle, page 151.
[138] Applicant's SIFC, paras 35 and 36.
The applicant says that the position taken by Main Roads provides a cogent reason to depart from the application of LPP 12.[139] Whilst the respondent acknowledged that Main Roads did not raise any road safety concerns about the deletion of condition 23, the respondent questioned the relevance of the Main Roads submission because it relates primarily to the approval of the digital sign and not its content.[140]
[139] ts 172, 29 June 2023.
[140] ts 152, 29 June 2023.
Mr Doyle observed that it is extremely rare for Main Roads to be satisfied that a proposal meets all the locational and physical requirements to satisfy its policy and guidelines for advertising signs.[141] Mr Loh did not agree that approval or endorsement from Main Roads was necessarily difficult. In Mr Loh's recent experience, Main Roads had only objected to one of six applications to the City for a third party advertising sign, and that was due to insufficient information being provided with the application.[142]
[141] Witness statement of Ben Doyle dated 2 June 2023 at para 101; ts 66, 28 June 2023.
[142] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 8(m); ts 67, 28 June 2023.
I find that the submission received from Main Roads raising no objection to the deletion of condition 23 is a matter that is relevant to my determination and should be given some weight. However, I am not satisfied that the lack of any objection by Main Roads provides a cogent reason to depart from the application of LPP 12 in the circumstances of this case. This is because the comments made by Main Roads, from a road traffic safety perspective, are necessarily concerned with the operational aspects of the digital sign rather than its display of third party advertising content.
Whilst I acknowledge that not all proposals for signage progress to a formal planning application, I find, based on the evidence of Mr Loh which I accept, that it is not unusual for an application for a third party advertising sign on Great Eastern Highway to meet the Main Roads policy.
I will next consider whether the amendment is consistent with LPP 12 and if there are any other matters identified by the applicant at [63] above that would justify a departure from the application of LPP 12.

Is the amendment consistent with LPP 12?

I find that LPP 12, being a local planning policy for the Scheme Area, is relevant to my determination under cl 67(2)(g) of the Deemed Provisions and, ultimately, to the 'correct and preferable' decision as to whether the amendment should be approved. For the reasons already given, I have found that LPP 12 is not inconsistent with the provisions of LPS 15 and applies to the amendment that is the subject of the application before me.
I have also found that the proposed change precipitated by the deletion of condition 23, which would have the effect of permitting the digital sign to display third party advertising, is inconsistent with LPP 12. This is because cl 6.1.1 of LPP 12 provides that third party advertising is not permitted in the Scheme Area. Clause 6.1.1 of LPP 12 provides:
Advertisement signs shall only advertise services and products available on the premises to which it relates. Third party advertising is not permitted.
Relevantly, cl 2.4 of LPP 12 provides that where the development requirements in Pt 6 or 'deemed to comply' criteria in Column B of Table 1 of LPP 12 are not met, then the digital sign is to be assessed against the objectives in Part 3 of LPP 12 and will not be supported 'unless exceptional circumstances exist'. The circumstances that may be considered 'exceptional' are not detailed. Clause 2.4 of LPP 12 provides:
Advertisement signs that do not comply with the criteria listed in Column B of Table 1 and the Development Requirements listed in Part 6 of this Policy, will be assessed against the objectives outlined in Part 3 of this Policy. Advertisement signs that do not comply with the objectives are deemed unacceptable and will not be supported unless exceptional circumstances exist.
(Emphasis added).
I have already set out the objectives in Part 3 of LPP 12 but for ease of reference repeat below those that are relevant:
3.1Ensure that advertisement signs are appropriate for their location, relate to the land and/or buildings for which they are placed, and do not adversely impact the amenity of the surrounding area.
…
3.3Ensure the advertisement signs only advertise services offered and/or products produced, sold and/or manufactured on the land or buildings/s related to the approved use/s taking place.
I have found, for the reasons already given, that the proposed change precipitated by the deletion of condition 23 is inconsistent with cl 6.1.1 of LPP 12 and the objectives in cl 3.1 and cl 3.2. As a result, the amendment is deemed unacceptable by cl 2.4 of LPP 12 'unless exceptional circumstances exist'.

The meaning of 'exceptional circumstances'

In Avalon Sheds and Stables and City of Belmont (Avalon Sheds), the Tribunal considered the meaning of the expression 'exceptional circumstances' and concluded that for circumstances to be considered 'exceptional' they should be circumstances that are, individually or together, uncommon, unusual, special or out of the ordinary.[143] The Tribunal referred to the decision of D and Department of Community Development [2007] WASAT 154 in which Chaney J stated:[144]
[143] Avalon Sheds and Stables and City of Belmont [2009] WASAT 67 (Avalon Sheds) at [29].
[144] Avalon Sheds at [28].
19The Act does not define 'exceptional circumstances'. The Australian Concise Oxford Dictionary (2nd Edition), Oxford University Press, Melbourne, 1992 defines exceptional as 'forming an exception; unusual; not typical'. In Baker v The Queen (2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:
'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'
20In Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26], Rares J after referring to the observation of Griffiths v R (1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that 'although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances', said:
'Exceptional circumstances within the meaning of s 106KA(2) [of the Health Insurance Act 1973 (Cth)] can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional …
It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.'
It follows that exceptional circumstances exist for the purposes of cl 2.4 of LPP 12 if the circumstances are, either individually or together, uncommon, unusual, special or out of the ordinary.

Principles relating to the application of policy

The principles relating to the application of policy are well established and were not in dispute. The existence of a policy, formulated by the decision-maker whose decision is under review, is a factor to be taken into consideration by the Tribunal, but it cannot replace the exercise of discretion by the Tribunal.[145] The Tribunal's decision 'must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy'.[146] That is, a policy cannot be inflexibly applied regardless of the merits of the case.[147]
[145] Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 24 ALR 577; 2 ALD 60; 46 FLR 409 at [69] ‑ [70].
[146] Minister for Immigration Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 at pages 205 ‑ 207.
[147] Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37] citing Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] - [26] (Barker J).

Any departure from government policy must be cautious and sparing, occurring only where there is a cogent reason or sound basis to do so, which itself is grounded in planning law or principle.[148]
[148] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [644] ‑ [645]; Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182].
In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (Land Alliance), the Tribunal adopted the criteria set out in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 (Permanent Trustee) for determining the weight to be given to a policy.[149] The criteria include whether the policy is based on sound planning principles, is public (as opposed to secret) and whether it was conceived after considerable public discussion.[150] The length of time that the policy has been in operation and whether it has been continuously applied are also relevant criteria. The weight attached to a policy may be influenced by the extent of public consultation that preceded it and whether it originated from a political or departmental process.[151]
[149] Cited with approval in Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 at [361].
[150] Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100 (Land Alliance) at [51].
[151] Marsh and Commissioner of Police [2018] WASAT 139 at [27] and [38] - [39].
It follows from these authorities that I must consider the provisions of LPP 12 in making my decision, but those provisions cannot be applied inflexibly so as to replace the exercise of my discretion. I am entitled to depart from LPP 12 if there is a cogent reason or sound basis for doing so having regard to the relevance of the planning principles that find expression in its provisions.
Whether there are exceptional circumstances that exist for the purposes of cl 2.4 of LPP 12 is closely related to the concept of whether there are cogent reasons to depart from a policy; a matter not disputed by the parties in this review proceeding.[152] Consequently, I will deal with them together below.

Are there exceptional circumstances or cogent reasons to depart from LPP 12?

[152] ts 154, 29 June 2023; ts 168, 29 June 2023.

The digital sign has been approved to display site-specific advertisements and, by the proposed change precipitated by the deletion of condition 23, would be permitted to display third party advertising, contrary to the policy provisions of LPP 12. For the reasons that follow, I am not satisfied that there are exceptional circumstances or a cogent reason (or reasons) to depart from LPP 12 in this case.
First, I do not accept the applicant's contention that the unique location of the commercial development and its surrounds is a basis to depart from LPP 12. Whilst I have found that the subject land is located in a low-amenity urban highway environment, I am not persuaded, for the reasons already given, that the deletion of condition 23 will have no discernible effect on the amenity of the locality; a locality which is characterised by a mix of varied business uses and a large number of existing site-specific signage.
Second, I do not consider the prevalence of signage in the locality to be a basis to depart from LPP 12. I have found that, if the amendment is approved, the digital sign will propagate unsolicited information which will add to the visual clutter of a locality where there is already a proliferation of signage.
Third, whilst I accept that motorists who are able to view the digital sign travelling in an easterly direction on Great Eastern Highway are unable to access the centre without doing a U-turn, I do not consider this to be a basis to depart from LPP 12. I have found that the display of third party advertising on the digital sign is unlikely to interfere with the signage of businesses on the subject land due the lack of access from Great Eastern Highway. However, I have also found that the change precipitated by the deletion of condition 23 is incompatible with site-specific signage in the locality and, consequently, may affect the function, viability or operation of those businesses. A consequence which I consider is inconsistent with the objective of the Mixed Business zone.
Fourth, there was no dispute that the net lettable area of the subject land is significant and, consequently, the digital sign may already advertise a broad array of site-specific products and services. The applicant contends that the change precipitated by the deletion of condition 23 will extend those products and services by way of third party advertising. I do not consider this to be a basis to depart from LPP 12 because I am satisfied that the deletion of condition 23 will undermine one of the main functions of site-specific signage in the locality which is to identify the location of existing businesses.
Fifth, whilst I accept that LPP 12 has not been consistently applied by the City because third party advertising is visible on community infrastructure, I do not consider this to be a basis to depart from the policy in this case. This is because LPP 12, to the extent that it purports to prohibit third party advertising, has been consistently applied by the City in respect of applications for large format signs, including the application that is the subject of this review proceeding. Further, in the recent decision of WA Billboards and City of Belmont [2023] WASAT 42 (WA Billboards), the Tribunal was not convinced that the display of third party advertising on the City's community infrastructure is an exceptional circumstance or cogent reason to depart from the planning principles embodied in LPP 12.[153]
[153] WA Billboards at [79] - [80].
Sixth, for the reasons already given, I do not accept that there are few locations along Great Eastern Highway where all of the criteria for the Main Roads policy would be met. Consequently, I find that the lack of any objection by Main Roads to the amendment is not a basis to depart from LPP 12 in this case, particularly as the assessment conducted by Main Roads in respect of traffic safety is concerned with the operational aspects of an advertising sign rather than its content.
Finally, I do not accept that the Minister's decision to refuse Amendment 16 is a basis to depart from LPP 12. If it had been approved, Amendment 16 would have the effect of prohibiting third party advertisements on zoned land within the Scheme Area. There are many reasons why a Scheme amendment may be rejected. Consequently, it cannot be inferred from the Minister's decision that the purported prohibition on third party advertising in LPP 12 is not based on proper planning principles or is a policy that should be departed from, particularly as I have found that the policy has been consistently applied by the City in respect of large format signs.
Whether the above bases are considered individually or together, I am satisfied that there is nothing uncommon, unusual, special or out of the ordinary in the circumstances of this case that would justify a departure from LPP 12.
I will next consider whether the deletion of condition 23 will set an undesirable precedent.

Would the amendment set an undesirable precedent?

In Nicholls and Western Australian Planning Commission[154] (Nicholls) the Tribunal considered the circumstances in which an undesirable precedent is a relevant consideration in a planning assessment.[155] The following criteria apply:[156]
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later indistinguishable applications.
[154] Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls).
[155] Nicholls at [71] - [75]. See Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1998, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170.
[156] Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75; (2002) 121 LGERA 101 at [74].
In relation to the first limb, there is nothing to preclude consideration of planning precedent with respect to a development which is itself unobjectionable if there is, established on the evidence, sufficient probability that there will be further applications for similar developments which, in their totality, would bring about an objectional planning outcome.[157]
[157] Wattleup Road Development Co Pty Ltd v State Administrative Tribunal[No 2] [2016] WASC 279 at [92] per Chaney J.
The evidence before the Tribunal must identify specific sites which are subject to the same or substantially the same planning framework and have undistinguishable characteristics. In Cornhill and Western Australian Planning Commission[158] (Cornhill), Barker J stated:[159]
In order to determine that there is more than a mere chance or possibility that there may be later undistinguishable applications, it is necessary to identify specific sites which are relevantly subject to the same or substantially the same planning framework and have undistinguishable characteristics including in terms of current or approved land use. While the Commission raised the issue of adverse planning precedent, it did not present evidence sufficient to enable such a finding to be made.
[158] Cornhill and Western Australian Planning Commission [2009] WASAT 9 (Cornhill).
[159] Cornhill at [64].
The applicant contends that the first limb of the test in Nicholls has not been met because the proposal is unobjectionable.[160] In relation to the second limb, the applicant says that the prospect of future approvals for third party advertising depends entirely on the quality of the application and the context of the site in question.[161] It is the applicant's position that there are very few locations along Great Eastern Highway or any State Road where all the criteria for Main Roads support can be satisfied. For these reasons, the applicant says that there is no prospect of a broad and unfettered proliferation of similar applications throughout the Scheme Area,[162] particularly as the application to delete condition 23 is in respect of an approved digital sign.[163]
[160] ts 175, 29 June 2023.
[161] Applicant's SIFC, para 9(n).
[162] Applicant's SIFC, para 9(n).
[163] ts 177, 29 June 2023.
In support of its position, the applicant relied on the evidence of Mr Doyle. Mr Doyle observed that the subject land is very large compared with other sites that front Great Eastern Highway within the Mixed Business zone and, consequently, a very wide range of products can already be displayed. On this basis, it is Mr Doyle's opinion that it is not possible to claim with any level of certainty that there is a sufficiently high probability of similar applications in respect of sites with a comparable land area.[164] In Mr Doyle's opinion, it is not possible to say with any confidence that other properties within the Mixed Business zone, or another location along Great Eastern Highway, would be capable of satisfying the requirements of the Main Roads policy. In his experience, it is extremely difficult to obtain Main Roads approval for digital LED advertisement signs featuring third party content.[165]
[164] Witness statement of Ben Doyle dated 2 June 2023 at para 104.
[165] Witness statement of Ben Doyle dated 2 June 2023 at para 104.
It is the respondent's position that the proposed use of the subject land for third party advertising will set an undesirable precedent because the use is non-compliant with LPP 12 and, consequently, is not in itself unobjectionable. The respondent contends that there is sufficient probability that there will be further applications for similar developments which, in their totality, would bring about an objectional planning outcome.[166] Should the amendment be approved, the respondent says that it would be more difficult to justify the refusal of future applications for third party advertising within the Mixed Business zone. [167]
[166] Respondent's SIFC, para 75.
[167] Respondent's SIFC, para 76.
The respondent adduced evidence of six applications for third party advertising received by the City in the past three years.[168] Five applications were for properties along Great Eastern Highway in the Mixed Business and Mixed Use zones which Mr Loh considered were comparable to the subject land.[169] Of these, only one was objected to by Main Roads on the basis of a lack of supporting information.[170] Mr Loh also referred to four vacant or disused sites within the locality, including 223 Great Eastern Highway, which was approved by the respondent with five showroom tenancies.[171]

Findings – undesirable precedent

[168] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 112 and Attachment 15.

[169] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 109.

[170] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at para 114.

[171] Witness statement of Wilmot Lik Yeow Loh dated 26 May 2023 at paras 73 - 74.

I am satisfied that the first limb in Nicholls has been established because, for the reasons already given, the display of third party advertising is inconsistent with LPP 12 and I have not identified a cogent reason, in the circumstances of this case, to depart from the application of LPP 12. Consequently, I find that the amendment is not in itself unobjectionable.
I accept the evidence of Mr Doyle, and I find, that the subject land is comparatively larger in net lettable area than other sites that front Great Eastern Highway. Because of the area of the subject land utilised for commercial purposes, there is no dispute, and I find, that the digital sign has the potential to display a broad array of products and services which could, by the amendment, become infinite. Having regard to the evidence of Mr Loh, which I accept, I find that there is more than a mere chance or possibility that future applications for third party advertising signs will be made on other properties along Great Eastern Highway if condition 23 is deleted. Further, I am not persuaded that future applications for third party advertising signs on Great Eastern Highway would be incapable of satisfying the operational requirements of the Main Roads policy.
Consequently, in respect of the second limb in Nicholls, I am satisfied that there is more than a mere chance or possibility of later indistinguishable applications.
For these reasons, I find that that the deletion of condition 23 would establish an undesirable precedent.

Conclusion

The applicant is seeking a review of the respondent's decision to refuse to delete condition 23 of the existing approval for a digital sign. The digital sign is an activity that is permitted on the subject land because it relates to the predominant use of the land.
The deletion of condition 23, to which Main Roads raised no objection, would permit the digital sign to display third party advertising. The change precipitated by the deletion of condition 23 is an independent use of land that requires development approval under LPS 15. It is not an extension of a use within the boundary of the subject land that does not change the predominant use of the land.
Having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, and weighing up my findings in respect of the issues for determination, I conclude that the correct and preferable decision is to dismiss the application for review because:
1)by the deletion of condition 23, the digital sign is inconsistent with the requirements of LPP 12, a policy which facilitates a planning purpose and has been consistently applied by the City within the Scheme Area in respect of large format third party advertising signs;
2)I have not identified any cogent reasons or extraordinary circumstances to depart from the application of LPP 12 in this case;
3)the display of third party advertising will have an adverse impact on the existing and future amenity of the locality and be incompatible with the desired future character of the setting in which the digital sign is located; a setting which I have found is already proliferated with site-specific signs; and
4)the amendment will establish an undesirable precedent in respect of future applications for third party advertising signs on land fronting Great Eastern Highway.
Accordingly, I will affirm the respondent's decision to refuse to delete condition 23. Prior to dismissing the application for review, I propose to hear further from the parties on how they wish to address the remaining proposed amendments to the existing approval.

Orders

The Tribunal orders:
1.The decision of the respondent dated 6 January 2023 to refuse application reference DAP/18/01521 and accompanying plans dated 29 September 2022 in respect of the deletion of condition 23 amended pursuant to Order 3 of the orders of the Tribunal dated 27 August 2021 in DR 7 of 2021 that signage only advertise services offered and/or products produced, sold and/or manufactured on the land or buildings at No 225 (Lot 500) Great Eastern Highway, Belmont, is affirmed.
2.The matter is listed for a directions hearing to commence at 9.30 am on 3 November 2023 at 565 Hay Street, Perth.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
19 OCTOBER 2023