MARINELLI & ORS and CITY OF FREMANTLE
[2006] WASAT 221
•4 AUGUST 2006
MARINELLI & ORS and CITY OF FREMANTLE [2006] WASAT 221
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 221 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:649/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MS J SMITHSON (SESSIONAL MEMBER) | 4/08/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld and decision under review varied | ||
| B | |||
| PDF Version |
| Parties: | DOMENIC MARINELLI CAMLEY NOMINEES PTY LTD SEAMONT HOLDINGS PTY LTD CITY OF FREMANTLE |
Catchwords: | Town planning Signage – Relevance of local law in determining application – Signage policy – Signs would improve existing landscape – Application for review upheld |
Legislation: | City of Fremantle Town Planning Scheme No 3 Local Government Act 1960 (WA) Planning and Development Act 2005 (WA) Town Planning and Development Act 1928 (WA) Town Planning and Development Act 2005 (WA) s 211 |
Case References: | Australian Posters Pty Ltd v Shire of Swan (Unreported, Appeal No. 14 of 1994, 15 November 1994 Plantation Resort Management Pty Ltd and Shire of Broome [2004] WATPAT 153 WA Billboards & M Berridge and Shire of Augusta-Margaret River [2003] WATPAT 81 Nil |
Orders | 1. The application for review is upheld.,2. The decision under review is varied such that the application for signage is approved subject to the deletion of condition 1 imposed by the City of Fremantle requiring the submission of certain amended plans. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MARINELLI & ORS and CITY OF FREMANTLE [2006] WASAT 221 MEMBER : MS J SMITHSON (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 4 AUGUST 2006 FILE NO/S : DR 649 of 2005 BETWEEN : DOMENIC MARINELLI
- CAMLEY NOMINEES PTY LTD
SEAMONT HOLDINGS PTY LTD
Applicants
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Signage – Relevance of local law in determining application – Signage policy – Signs would improve existing landscape – Application for review upheld
Legislation:
City of Fremantle Town Planning Scheme No 3
Local Government Act 1960 (WA)
Planning and Development Act 2005 (WA)
Town Planning and Development Act 1928 (WA)
(Page 2)
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Result:
The application for review is upheld and decision under review varied
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Mr SJ Bain (Acting as Agent)
Solicitors:
Applicants : Self-represented
Respondent : SJB Planning and Urban Design
Case(s) referred to in decision(s):
Australian Posters Pty Ltd v Shire of Swan (Unreported, Appeal No. 14 of 1994, 15 November 1994
Plantation Resort Management Pty Ltd and Shire of Broome [2004] WATPAT 153
WA Billboards & M Berridge and Shire of Augusta-Margaret River [2003] WATPAT 81
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 These proceedings concerned an application for a review of a condition imposed by the City of Fremantle in respect of proposed signage for a Tyrepower outlet situated at No 59 (Lot 142) Queen Victoria Street, Fremantle.
2 The condition required all signs to comply with a City of Fremantle policy and signage local law. This necessitated revised plans being lodged, as the proposed development did not comply with these standards.
3 The application proposed the demolition of the front service bay of an existing Tyrepower outlet, and the construction of seven new signs. The signs were all fascia or panel signage and were proposed in response to new Tyrepower corporate livery. However, the development would result in an overall reduction in the number and extent of signs on the property.
4 The only area of noncompliance with the local law was in respect to the height of one of the signs. No specific details of the alleged policy noncompliance were provided. This policy contains general provisions requiring signs to be relevant and appropriate to their location and function, having regard to factors such as aesthetics and clutter.
5 The City of Fremantle planning officers supported the development as submitted, including the non-compliance of one relevant sign, on the basis that "the proposed signage is considered appropriate for the retail environment that the site resides within and is believed to be an improvement on the current examples of signage on-site".
6 The Tribunal found that the application should be approved as lodged and therefore condition 1 should be deleted. The new signage will be less signage than currently exists and, along with the removal of the front service building (approved by the City of Fremantle), will decrease visual clutter and improve aesthetics, and otherwise generally meet the objectives of the City of Fremantle's policy.
7 The application for review was upheld and condition 1 of the City of Fremantle's approval for signage was deleted.
(Page 4)
The site
8 The subject site is 1397 square metres and contains both Tyrepower and Audiocom commercial buildings with a service bay forward of the outlets. The area surrounding the site is a mixture of commercial and residential, with a number of heritage buildings to the south and east.
9 The site is situated on Queen Victoria Street which is a major route into Fremantle. Advertising is a feature of numerous businesses located along the street. Domenic Marinelli, for Camley Nominees Pty Ltd and Seamont Holdings Pty Ltd (applicants), has indicated that it is in his "agreement with Tyrepower and a national directive that I comply with the new livery for my business to remain a Tyrepower Member".
10 The site's zoning is "Inner Urban" under the City of Fremantle Town Planning Scheme No 3 (TPS 3). The erection of signs constitutes development and requires planning consent under TPS 3. A signage licence is required under the signage local law.
The proposed development
11 In August 2005, approval was sought for demolition of an existing outbuilding at the front of the site (used for the servicing of cars) and the replacement of the existing Tyrepower advertising signage. The proposal was described by the City of Fremantle (City) as being "to replace the old signage with some contemporary art work and colours in order to attract customers and to also improve the aesthetic look of the building. The replacement signage incorporates the new Tyrepower corporate style and colours".
12 Seven new signs were proposed, all of which were supported by the City's planning officers on the basis that they represented a more contemporary design, were an improvement on the existing signage, were not visually obtrusive and/or were considered appropriate for their purpose. The only identified noncompliance was with the height of one sign, and the extent of the noncompliance was not documented.
13 In January 2006, the application for approval to remove the outbuilding was conditionally approved by the City. The application for signage was also conditionally approved, with condition 1 of that approval stating:
"All signs are to comply with the City of Fremantle policy D.B.H6 and the City of Fremantle signage local law. Revised plans shall be submitted to the satisfaction of the
(Page 5)
- Director Urban Management prior to the issue of a sign license."
14 It is condition 1 which is the subject of the application for review.
Planning issues
15 The application was assessed under various City policies. However, the condition under review only relates to the requirement to comply with Policy DB H6 Signs and Hoardings (Policy DB H6) and the City's signage local law.
16 The objectives of Policy DB H6 are to ensure that signs are appropriate to their location and function and do not diminish the visual amenity, aesthetics, heritage significance and character of the locality, or detract from the appearance of buildings or places. Furthermore, they are to be compatible with the function of buildings and their context. Guidelines are provided to achieve these objectives.
17 Evidence was provided to the Tribunal from Mr Simon Bain, town planning consultant on behalf of the City. Mr Bain argued that the signage did not meet the requirements of Policy DB H6 as it would not "maintain the harmony in the exterior design of the buildings"; would result in a departure from the distinct character of the area; and be contrary to expectations of nearby residents who lived in heritage listed buildings. Mr Bain submitted that the site was in a prominent location in the Fremantle landscape, and high quality signage was important. The proposed signage "is considered to be excessive and contrary to maintaining a high quality urban environment". It would also detract from vistas to, and the prominence of, the Fremantle Arts Centre, a nearby heritage building.
18 Mr Bain also submitted that there was no demonstrated need for the number of signs proposed and suggested a smaller number would reduce the visual clutter and be more appropriate. He stated that there was no discretion to vary the dimensions of one of the signs under the local law.
19 In contrast, the City officers indicated that the signage was appropriate for the site and its context, and an improvement on the existing nature and extent of signage on site.
20 In terms of the one noncomplying sign, this was described as the predominant sign along the front façade containing the word "Tyrepower"
(Page 6)
- and the corporate logo. This sign was described by officers as "similar to the existing signage but upgraded to a more contemporary design".
21 Notwithstanding that the sign did not comply with the maximum height dimensions specified in the signage local law, it was supported by officers on the basis of being "an improvement on the existing signage". Specifically, the officers' report to Council states:
"the variation of the exceeding dimensions is considered to be appropriate in relation to its location and purpose. The sign's scale is what would be expected with the retail nature of the area … with several examples of similar signage in the vicinity."
22 City officers also noted that the total signage proposed would have a "negligible if any visual impact upon the Fremantle Arts Centre" or upon nearby heritage dwellings and that nearby heritage commercial buildings, such as Caledonian Hall, themselves have signage and are in a locality "subject to abundant existing signage".
23 The applicant stated that the new signage would represent 20% less signage than currently existed, and the new livery, along with the demolition of the service building, "dramatically improves visual clutter". Furthermore, the applicants' agreement with Tyrepower restricted the ability for any further signage to be erected on the site, other than what had been applied for to comply with new corporate image livery.
Signage local law
24 Part of condition 1 imposed by the City was that all signs needed to comply with the City of Fremantle Signage Local Law. Whilst not provided to the Tribunal under this title, it is understood that this local law is a replica of the Draft Model By-laws (Signs, Hoardings and Billposting) provided to the Tribunal and adopted by the City under the former Local Government Act 1960 (WA). These laws are dated, do not cover all manner of signage the subject of the application, and do not deal with planning matters.
25 In Australian Posters Pty Ltd v Shire of Swan(Unreported, Appeal No. 14 of 1994, 15 November 1994, an appeal relating to the then Shire of Swan's refusal of a planning application for a sign on the basis of noncompliance with its sign by-laws, the Tribunal made the following comments:
(Page 7)
- "It is not …. appropriate for the Shire to refuse an application for development permission based on considerations found outside the Scheme which are not proper town planning matters. The provisions of the By-Law can only be understood and applied in the context created by the inter-relationship of its provisions and it is not correct to use the considerations for one domain in the resolution of issues in another. It was incorrect for the Shire, and it would be incorrect for the Tribunal to apply the provisions of the By-Law as the basis for consideration of this issue."
26 In WA Billboards & M Berridge and Shire of Augusta-Margaret River[2003] WATPAT 81, and again in Plantation Resort Management Pty Ltd and Shire of Broome[2004] WATPAT 153, the Tribunal concurred with this view and, in both cases, held that "[t]he Local Law should not be given weight in the consideration of [the] appeal".
Findings and Conclusions
27 For the reasons summarised below, the Tribunal determines that the application for review should be upheld:
1) The proposed signage would be an improvement on the existing signage and would result in less signage than currently exists on the site.
2) No specific guidance was given in the condition imposed as to what changes to the signage were required in order to comply with the City's Policy DB H6, given that there was only one noncompliance with the signage local law identified.
3) The Tribunal was satisfied that the general provisions of Policy DB H6 could be met and that there would be no adverse impact on the streetscape, neighbours or nearby heritage buildings arising from the signage proposed.
4) The requirements of Tyrepower on the applicant to upgrade the signage to meet national corporate livery changes were, to the extent relevant, considered reasonable and would improve the visual appearance of the development.
(Page 8)
- 5) The signage local law should not displace relevant planning considerations.
Orders
28 Accordingly, the Tribunal makes the following orders:
1. The application for review is upheld.
2. The decision under review is varied such that the application for signage is approved subject to the deletion of condition 1 imposed by the City of Fremantle requiring the submission of certain amended plans.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J SMITHSON, SESSIONAL MEMBER
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