Melbourne City Council v JCDecaux Australia Pty Ltd

[2023] VSC 665

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2023 03141

Melbourne City Council	Plaintiff
v
JCDecaux Australia Pty Ltd	Defendant

---

JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2023
DATE OF JUDGMENT:	17 November 2023
CASE MAY BE CITED AS:	Melbourne City Council v JCDecaux Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 665

---

PLANNING LAW — Appeal from the Victorian Civil and Administrative Tribunal — Permit application for ‘Telecommunications facility’ with signage — Whether separate permit for development required for signage — Construction of provisions of the Melbourne Planning Scheme — Amendment to the Melbourne Planning Scheme by VC226 — Whether changes to the relevant provisions of the planning scheme altered permit requirements — Preliminary determination of the Tribunal at earlier time — Whether Tribunal misdirected itself as to statutory task after Amendment VC226 — Proper interpretation and effect of clauses 52.19 (Telecommunications facility), 62.01 (Uses not requiring a permit) and 62.02-1 (Buildings and works not requiring a permit) — Concept of ‘development’ separate from ‘use’ — Definition of ‘development’ in respect of signage — Ancillary use principles not applicable to ‘development’ — Cascone & Anor v City of Whittlesea (1993) 11 AATR 175 referred to; APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8; Badger v Bayside City Council [2022] VSC 140 applied — Leave to appeal granted — Appeal allowed — Reasons delivered subsequent to Orders made.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Tweedie SC and Mr J Wright of counsel	Ashurst Australia
For the Defendant	No appearance

HER HONOUR:

INTRODUCTION

1. JCDecaux Australia applied for planning permission to develop a large number of payphone cabinets[1] in the City of Melbourne to be located on public footpaths within the CBD and Carlton. The current proposal comprises 47 single structures each incorporating a Telstra payphone, fixed and mobile communications network connections together with a 32” LCD screen on one side of the structure and on the other side a 75” LCD screen which is intended to display commercial advertising signage.

   [1]The original number of applications was much larger but as the planning litigation process progressed a number of the applications were withdrawn.

1. The planning history of this project is a long and complex one which has wound its way from its commencement as planning permit applications to the Melbourne City Council (‘the Council’), the refusal by the Council to grant planning permission, an appeal to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) with a foray to the Federal Court and the Full Federal Court, back to the Tribunal, and now to this Court. The categorisation of the use and development, and what planning permissions were triggered by this categorisation, has been at the centre of the legal journey.

1. The Council brought this application for leave to appeal from the orders made by the Tribunal on 21 June 2023 (corrected 26 June 2023). The orders made by the Tribunal in issue are:

Order 2.The Tribunal decision of JCDecaux Australia Pty Ltd v Melbourne CC [2022] VCAT 248 determined that the proposal, comprising both the use and development proposed by the 47 applications currently before the Tribunal (ranging from P937/2019 to P1016/2019) is characterised as Telecommunications facility only, and planning permission is not separately required for the development of signs pursuant to clause 52.05 of the Melbourne Planning Scheme.

Order 3. The gazettal of Amendment VSC 226 the Melbourne Planning Scheme on 4 November 2022 does not change this characterisation.

1. In JCDecaux Australia Pty Ltd v Melbourne CC [2022] VCAT 248 (‘the March 2022 Orders’), the Tribunal had been called upon to answer a preliminary question as to the correct categorisation of the proposal set out in the application (set out below at [5]). This categorisation was made after proceedings had been determined in the Federal Court of Australia on the classification of whether the Telecommunications facility was a ‘low impact facility’ or otherwise.[2] The Full Court of the Federal Court of Australia determined on appeal that the proposal did not meet that ‘low impact facility’ classification.[3] That determination by the Full Federal Court affected the exemption provisions which applied under clause 52.19 of the planning scheme, as it then was.

   [2]Telstra Corporation Limited v Melbourne City Council [2020] FCA 305.

   [3]Melbourne City Council v Telstra Corporation Limited [2020] FCAFC 200.

1. The Tribunal had provided the following reasons in making its determination of the preliminary questions of law for the March 2022 Orders:

DETERMINATION ON QUESTIONS OF LAW

1.The proposed structures (payphone cabinets) are characterised under the Victorian Planning Provisions as a Telecommunications facility.

A permit is required for the development of the Telecommunications Facility pursuant to clause 52.19 of the Melbourne Planning Scheme. No permit for use is required if a permit is granted under clause 52.19 of the Melbourne Planning Scheme.

No permit is required for the development of the Telecommunications Facility under the zones and overlays in the Melbourne Planning Scheme that apply to the subject land.

Electronic promotional signage at the rear of the payphone cabinet is ancillary to the payphone cabinet and thus is not necessary to include reference to electronic promotional signage in the description of the permit application.

1. The Tribunal then went on to make orders in respect of the notice required to be undertaken.

1. In the reasons given for the March 2022 Orders, the Tribunal referred to and relied on the well‑known principles on characterisation of use that were summarised in Cascone &Anor v City of Whittlesea.[4] I note that these principles relate to categorisation of use and not development of land.

   [4](1993) 11 AATR 175 (‘Cascone’).

CONTEXT FOR THE QUESTIONS RAISED IN THE NOTICE OF APPEAL

1. Three questions of law were identified in the proposed Notice of Appeal dated 2 August 2023, each which has at its core the construction of the provisions of the Melbourne Planning Scheme (‘the MPS’) in relation to the development permit triggers applying to the proposal, in particular, after the gazettal of Amendment VC226. The categorisation of the use was not in issue.

1. In the reasons given for the March 2022 Orders, the Tribunal, having categorised the proposed use of the land as a Telecommunications facility, then considered what permit triggers applied under the planning scheme (as it was then). As set out in paragraph 5 above, the Tribunal found that a permit is ‘only required under clause 52.19 which specifically relates to Telecommunications facility and is exempt from the requirements of use and development under any other requirements of the scheme because of clauses 62.01 and 62.01‑1’.[5]

   [5]March 2022 Orders, [36]. The reference to 62.01‑1 is a typographical error and should refer to 62.02‑1.

1. A key controversy for the Tribunal to determine in that decision related to a divergence of authority as to the effect of clause 52.19 (Telecommunications facility) (as it then was) and the exemption provisions in clauses 62.01 (Uses not requiring a permit) and 62.02‑1 (Buildings and works not requiring a permit). At that time, clause 62.01 provided for an exemption from any permit requirements in the MPS relating to use of land for a Telecommunications facility ‘if the associated buildings and works met the requirements of clause 52.19’.

1. The Tribunal interpreted clause 52.19 of the MPS as if it were a ‘one stop shop’ in terms of planning permission for a Telecommunications facility.[6] In coming to that view, the Tribunal relied on the words of clauses 62.01 and 62.02‑1 (as they were then) and that the concept of ‘meeting the requirements’ meant the grant of a permit under clause 52.19. This interpretation meant that these exemptions applied if a permit was granted for a Telecommunications facility under clause 52.19. The Tribunal found a permit was required for development under clause 52.19 for the payphone cabinets (as a Telecommunications facility) but not otherwise under the MPS. A permit for use was not required if a permit is granted under clause 52.19.[7] The Tribunal also noted that as the electronic signage was ‘ancillary to the payphone cabinet’ it was not necessary to include reference to electronic promotional signage in the description of the permit application.[8]

   [6]March 2022 Orders, [48].

   [7]March 2022 Orders, [51].

   [8]March 2022 Orders, [52].

PLANNING SCHEME AMENDMENT VC226

1. To add to the long history of this matter, on 4 November 2022, Amendment VC226 of the MPS was gazetted.

1. Amendment VC226 made changes to the Victoria Planning Provisions in all planning schemes across Victoria, including clauses 52.19, 62.01 and 62.02‑1 that have relevance to this proceeding.

Clause 52.19

1. Before 4 November 2022, clause 52.19‑1 included eight types of Telecommunications facility development that did not require a permit. This included a ‘low impact facility’ and a ‘Telecommunications facility’ which complied with the requirements of section 5 of A Code of Practice for Telecommunications Facilities in Victoria, July 2004 (‘Code of Practice’). The decision guidelines in clause 52.19-5 of the scheme required the responsible authority to consider, as appropriate, principles for the design, siting and construction of a facility set out in the Code of Practice, the effect of the proposal on adjacent land and, if the facility is located in an Environmental Significance Overlay (‘ESO’), a Vegetation Protection Overlay (‘VPO’), a Significant Landscape Overlay (‘SLO’), a Heritage Overlay (‘HO’), a Design and Development Overlay (‘DDO’) or an Erosion Management Overlay (‘EMO’), the decision guidelines in those overlays and the schedules to those overlays.

1. As at 9 June 2023[9] clause 52.19‑1 listed 17 types of telecommunications facility developments exempt from a requirement to obtain a permit for ‘buildings and works’. The proposed facilities are not within that class of development. Additionally, clause 52.19‑5 includes decision guidelines which require the responsible authority to consider as appropriate the design, siting and construction of the telecommunications facility and the effect of the telecommunications facility on adjacent land.

   [9]Being the date of the Tribunal hearing giving rise to this appeal.

Clause 62.01

1. Prior to 4 November 2022, clause 62.01 relevantly stated:

Any requirement in this scheme relating to the use of land … does not apply to:

…

·The use of land for a Telecommunications facility if the associated buildings and works meet the requirements of Clause 52.19’.

1. As at 9 June 2023, clause 62.01 stated:

Any requirement in this scheme relating to the use of land … does not apply to:

…

·The use of land for a telecommunications facility.

Clause 62.02-1

1. Prior to 4 November 2022, clause 62.02‑1 relevantly stated:

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works … does not apply to:

…

·Building and works associated with a telecommunications facility if the requirements of Clause 52.19 are met.

1. As at 9 June 2023, clause 62.02‑1 stated:

Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works… does not apply to:

…

·Buildings and works for a telecommunications facility exempt from a permit under clause 52.19‑1.

1. The view formed by the Council of the effect of the planning scheme changes was that from 4 November 2022, a permit was required for the development of the proposal as follows:

(a)        in respect of the proposed telecommunications facility, to construct a building and construct or carry out works under clause 52.19 and under all other relevant provisions of the MPS (most relevantly the applicable zones and overlays); and

(b)       to construct or put up for display the Advertising signs, variously under clauses 52.05 (Signs), 37.04 (Capital City Zone), and 43.01 (HO) of the MPS in circumstances where there was no applicable exemption in the MPS from the requirement for a permit under those clauses.

1. JCDecaux accepted that a permit was required to construct a building or construct or carry outworks for a Telecommunications facility under clause 52.19-1 and all of the relevant zones and overlays.[10] The question which remained in issue was whether a permit was required for the development of the advertising signs.

   [10]JCDecaux Australia Pty Ltd v Melbourne CC [2023] VCAT 32, [3] (‘the January 2023 Orders’).

1. The Tribunal held a further preliminary hearing to determine this question and it is from this determination that Orders 2 and 3 are the subject of the appeal before this Court.

12 JANUARY 2023 ORDERS

1. In the January 2023 Orders, the Tribunal made case management orders, including setting several milestone dates with respect to information required in evidence and submissions to be circulated in advance of the substantive hearing.

1. The January 2023 Orders required the Council to advise the Tribunal and all parties of its position in respect of each of the applications by 17 May 2023. This date followed a report presented to a meeting of the Council.[11] This report indicated that officers had formed the view that, by reason of the changes introduced by Amendment VC226, a permit was also required for the development of the signs that are part of the proposed cabinet structures, specifically by reason of the changes made to clause 62.02‑1 in relation to the development of a Telecommunications facilities.

   [11]Report to the Future Melbourne Committee, 16 May 2023.

1. It was the Council’s view that this approach represented a change to how the applications should be assessed. As a consequence, the Tribunal listed the matter for a preliminary hearing to consider whether clause 52.05 and other provisions of the MPS relating to signs applied to the applications the subject of these proceedings in light of the preliminary hearing decision of the Tribunal on 28 March 2022 and Amendment VC226.

THE TRIBUNAL’S JUNE 2023 ORDERS

1. Paragraphs 13–22 of JCDecaux Australia Pty Ltd v Melbourne CC (Corrected) [2023] VCAT 703 (‘June 2023 Orders’) set out the Tribunal’s analysis of whether planning permission was required for development of the signs.

IS PLANNING PERMISSION REQUIRED FOR DEVELOPMENT OF SIGNS?

[13] As set out in the January 2023 decision, and accepted by the parties, the effect of VC226 with respect to these applications is that a permit is not required to use land for a ‘Telecommunications facility’ under any provision of the scheme (pursuant to clause 62.01) and a permit is required to construct a building or construct or carry out works for a Telecommunications facility under clause 52.19 – in all of the relevant zones and overlays which apply to the land upon which the applications are proposed.[12]

[12]Emphasis added.

[14] Both the council and the applicant submit that the March 2022 decision remains determinative but each party understands the decision differently. This is explained in the council’s submissions as follows:

16.Council’s position in respect of the continuing relevance of the 2022 Decision is that:

(a) the Tribunal’s ruling about the land use characterisation of the proposed cabinets – that they are to be characterised as Telecommunications facilities, and the proposed electronic promotional signs as an ancillary use – remains determinative. Council has adopted and applied that characterisation in its revised assessment of the Application set out in the report to the Future Melbourne Committee (FMC report) dated 16 May 2023; but

(b) the Tribunal’s ruling about applicable permit triggers is no longer determinative by reason of the changes introduced by VC226. Fundamentally, the Tribunal’s decision on permit triggers was founded on and tied to provisions that are no longer in the Melbourne Planning Scheme. The replacement provisions require a wholly different assessment of triggers, including in respect of the proposed electronic promotional signs, as set out above.

[15] The council submits that the March 2022 decision provided a characterisation of the land use and not the development, and that the changes introduced by VC226 remove a previous blanket exemption for development permission and, therefore, introduce a new permit trigger for the development of signage under clause 52.05.

[16] The applicant, in summary, submits that:

14. Notwithstanding Council’s decision to concentrate in its written submissions to considerations relating to the use of land, the question of law before the Tribunal was a characterisation of the proposed facilities, in order to determine the consequential permit triggers. That question necessarily encompassed considerations relating to both use and development of land.

[17]I agree with the applicant.

[18] As set out earlier, the Tribunal in the March 2022 decision was asked to consider how the proposed structures should be characterised in the consequential permit triggers under the scheme, as well as the extent of notice required as a result of the earlier analysis. At paragraph 1 of that decision, the Tribunal described the structures as comprising a public payphone and electronic promotions sign. At all times, it has been clear that structures include signage.

[19] The Tribunal was constituted by an experienced senior legal member. The question required to be answered was not confined to a characterisation of use, but was required to include development in order to determine permit triggers and notice requirements.

[20] The determination of the question of law makes this clear. It states that the proposed structures are characterised as a Telecommunications facility. It then states that ‘A permit is required for the development of the Telecommunications facility pursuant to clause 52.19 of the Melbourne Planning Scheme’.[13] It does not state that a permit is required for the development of signs. The determination then specifically states that electronic promotional signage is ancillary to the payphone cabinet and that is not necessary to include electronic promotional signage in the description of the permit application.

[21] At paragraph 35 of its reasons, the Tribunal found that:

The application is for only one purpose a Telecommunications facility and not a second separate and distinct purpose for an electronic promotional sign.

[22] The Tribunal does not separate use and development within this finding but determines that the entirety of the application is characterised as a Telecommunications facility. The remainder of the reasons then consider the permit triggers and notice required which arise from the determination that the only characterisation of the application is a Telecommunications facility. As noted by the applicant, at the commencement of the Tribunal reasons, the relevant planning scheme provisions are set out, and the particular provisions of Signs (clause 52.05) and Telecommunications facility (clause 52.19) are included, with the proviso ‘depending on the characterisation adopted’.[14]

[13]Emphasis in original.

[14]Footnotes omitted.

1. The Tribunal said that the APN Outdoor (Trading) Pty Ltdv Melbourne City Council[15] and Badger v Bayside City Council[16] decisions only become relevant if the Tribunal in its March 2022 Orders determined that the development proposed by the 47 applications constituted development of signs. The Tribunal has the ability to make that finding and clearly had regard to the fact that clause 52.05 could apply depending on the characterisation adopted. It did not do so.[17] The Tribunal found that the reasons given for the March 2022 Orders rejected that there was a separate and purpose for electronic signage and that the Tribunal would have dealt with a separate permit trigger for development if that had been its reasoning.[18]

   [15][2012] VSC 8 (‘APN Outdoor’).

   [16][2022] VSC 140 (‘Badger’).

   [17]June 2023 Orders, [24]–[26].

   [18]June 2023 Orders, [28], citing the March 2022 Orders, [34]–[35].

1. The Tribunal rejected the appellant’s submission that Amendment VC226 removed the clause 52.19 ‘one stop shop’ approach and the broad words of application ‘building and works associated with a Telecommunications facility from the exemption in clause 62.02‑1’ and determined that the Tribunal’s March 2022 decision found that the display of the sign was bound up in the structure. [19] The Tribunal referred to paragraph 35 of the March 2022 Orders where the Tribunal expressly found that the application is for ‘only one purpose’ and that in the same sentence, the Tribunal further clarified that ‘there is not a second separate and distinct purpose for electronic promotional sign as set out earlier in the decision’.[20]

   [19]June 2023 Orders, [27]–[28].

   [20]June 2023 Orders, [28] (emphasis in original).

1. The Tribunal concluded that if there had been a second purpose that required planning permission in its own right, the Tribunal would have explained in the next section headed ‘Permit triggers’ whether or not a permit was required for signage and whether the development of signs was exempt through the application of clause 62.02‑1.[21] The gazettal of VC266, in the Tribunal’s view did not change the need for planning permission and that a planning permit is not required with respect to the 47 applications for development of signs under clause 52.05 of the scheme.[22]

   [21]June 2023 Orders, [29].

   [22]June 2023 Orders, [30]–[32].

QUESTIONS FOR DETERMINATION

1. The questions of law proposed to be brought in the appeal were:

(a)        Did the Tribunal err by failing to properly exercise its jurisdiction and undertake its statutory task to determine whether planning permission was required by the MPS for the development of the electronic promotional signs that are proposed to form part of the proposed structures the subject of the proceedings?

(b)  Did the Tribunal err in law by misconstruing the relevant provisions of the MPS in concluding that no planning permission was required for the development of the electronic promotional signs that are proposed to form part of the proposed facilities?

(c)        Did the Tribunal err by failing to find that planning permission was required by the MPS for the development of the electronic promotional signs that are proposed to form part of the proposed facilities?

APPELLANT’S SUBMISSIONS

1. The grounds relied upon in respect of each of these questions of law, in essence, argued that the Tribunal failed in its statutory interpretation task to determine whether planning permission was required by the MPS for the development of electronic promotional signs by misconstruing the relevant provisions of the MPS, as it is, after Amendment VC226.

1. It was argued that as a consequence of the changes introduced by Amendment VC226, there was no longer any exemption under the MPS that exempted buildings and works associated with a Telecommunications facility from the need to obtain a permit under other relevant provisions of the MPS, including clauses 52.05, 37.04 and 43.01, if the requirements of clause 52.19 were met.

1. It was submitted that the effect of Amendment VC226 was to materially change the relevant MPS provisions such that the questions of law that the Tribunal was required to answer at the preliminary hearing on 9 June 2023, were necessarily different to those answered by the Tribunal in the March 2022 Orders.

1. It followed that the Tribunal was not bound to follow the March 2022 Orders as those orders answer different questions of law in the context of the MPS as it existed prior to Amendment VC226. The Tribunal was required to independently consider the matters that were required to be determined by reference to the current provisions of the MPS. By failing to undertake its own independent assessment of whether a planning permit was required for the development of the electronic promotional signs by reference to the current provisions of the scheme, the Tribunal failed to properly exercise its jurisdiction.

1. Alternatively, it was argued that the Tribunal misconstrued the MPS in concluding that no planning permission was required for the development of the electronic promotional signs that formed part of the Telecommunications facilities. In each of the questions of law and the grounds relied upon, the gravamen of the argument is a misconstruction of the MPS provisions, in particular in respect of the provisions relating to signage.

ANALYSIS

1. The grounds upon which the applicant relied requires consideration of the relevant provisions of the MPS, in particular the effect and operation of clauses 52.19 and 62.02‑1.

1. The characterisation of use of the proposal was accepted to be ‘Telecommunications facility’. There was no challenge made to the categorisation that the use of land for an electronic promotional sign was ancillary to the primary purpose of the land as Telecommunications facility, and thus the use of the land for electronic promotional sign was not considered in planning terms to be a separate and distinct use.

1. The issue before the Court was the correct construction of the planning scheme and what development permit triggers arise as a consequence of that construction.

1. In this regard, there was a distinction drawn between the variety of forms of development which fall within the definition of ‘development’ and the specific reference in the definition to paragraph (f) which related to signs.

1. Section 3 of the Planning and Environment Act 1987 (Vic) (‘Planning Act’) sets out the following relevant definitions:

building includes—

(a)a structure and part of a building or a structure; and

(b)fences, walls, out‑buildings, service installations and other appurtenances of a building; and

(c)a boat or a pontoon which is permanently moored or fixed to land;

development includes—

(a)the construction or exterior alteration or exterior decoration of a building; and

(b)the demolition or removal of a building or works; and

(c)the construction or carrying out of works; and

(d)the subdivision or consolidation of land, including buildings or airspace; and

(e)the placing or relocation of a building or works on land; and

(f)the construction or putting up for display of signs or hoardings;

works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil;

1. It is noted that the construction or putting up for display of signs or hoardings is a specific form of development unique to signage, and is singled out in the concepts included in the definition of development.[23] The appellant acknowledged that the reasons given in the March 2022 Orders did not specifically engage with this aspect of the development. However, in my view it is necessary in the task of interpreting the MPS to look afresh at the planning scheme as a whole, including the applicable definitions to determine the correct construction, and thus, the permit triggers applicable under the planning scheme as it stands (and stood) as at the date of the Tribunal’s ruling.

   [23]Transcript of the Proceedings (Supreme Court of Victoria, S ECI 2023 03141, Quigley J, 3 October 2023, 13, lines 6–23. (‘Transcript’).

1. In respect of use of the land for signage, it was accepted that a Telecommunications facility is the primary purpose of the land and signage did not require a permit for use for the display of signage. Prior to Amendment VC226, the position was, and is, that no permit is required to use the land for signage.

1. Clause 52.19 post-Amendment VC226 requires a permit to construct a building or construct or carry out works for a ‘telecommunications facility’ unless one of the exemptions set out in clause 52.19‑1 applied, which it did not. The terms of the previous clause 52.19 provided an exemption for ‘buildings and works’ for a telecommunications facility if the requirements of clause 52.19-1 were met. The appellant’s submission was somewhat colourfully that this change to the permit requirements was a ‘seismic shift’.[24] I agree that the Tribunal was in error not to recognise that there was now a need for a development permit for signage given the shift in the planning scheme landscape.

   [24]Transcript, 18, line 4.

1. The change to the MPS by reason of Amendment VC226 altered clause 62.02‑1 so that the terms of the clause to exempt development of land in respect of a ‘telecommunications facility’ removed and replaced the words in clause 62.02‑1 relating to buildings and works ‘associated with a telecommunications facility if the requirements of Clause 52.19 are met’, with ‘Buildings and works for a telecommunications facility exempt from a permit under clause 52.19‑1’ (emphasis added).

1. This change read together with clause 52.19 is a significant change.

1. I accept that the differences between the operation of clause 52.19 prior to Amendment VC226 (which was the context in which the March 2022 Orders were made) and that which applied before the Tribunal in June 2023 was different and required a fresh look at the provisions of the planning scheme and the consequential permit triggers.

1. There is no concept of ancillary development.[25] The terms ‘use’ and ‘development’ are used disjunctively in the Planning Act and are well understood as separate concepts. As Cavanough J states in APN Outdoor:[26]

[28] First, the respondent submitted that the Act uses the terms ‘development’ and ‘use’ disjunctively. They are two distinct concepts with no overlap between them. The ongoing display of a sign after it has been erected must therefore be either development or use but cannot be both at the same time. This was common ground between the parties, and I agree that it is correct.

[29] Second, the respondent submitted that the concept of use refers to the purpose for which a development is used and not to the physical structure of the thing developed itself. I also accept this proposition.

[25]Cascone.

[26]APN Outdoor, [28]–[29] (footnotes omitted).

1. The appellant submitted that these propositions are correct and there is a fundamental separation between ‘development’ and ‘use’ such that the characterisation of the use does not determine the task of analysing what development permissions are required because they are fundamentally different things.[27]

   [27]Transcript, 21–22.

1. I agree.

1. Later in APN Outdoor, his Honour discusses the statutory definitions of ‘development’ and ‘building’ and states that the purpose of paragraph (f) in the definition of ‘development’ in the Planning Act is not to create a new and distinct concept of a sign, but to make clear that ‘development’ includes the construction or putting up of any type of sign where there otherwise may be doubt.[28] His Honour discussed this at [46]–[48]:

[46] First, paragraph (f) ensures that no matter what form signs may take, planning schemes will be able to regulate their being put up. Although a large panel sign such as the subject of this proceeding easily fits the description of a ‘structure’, there are many types of sign which could not readily be described as a building or a structure. For example, some signs are painted directly onto the side of existing buildings or walls. Some signs are printed on paper or fabric which is affixed to a pre‑existing surface. Some signs are loaded onto a trailer or vehicle and not affixed to the ground at all. Some signs take the form of banners or flags that are strung from trees or poles. Some signs can take the form of light projected onto a surface. An advertisement might even be mown into the grass on a field with the intention that it be seen by passengers in aircraft landing at a nearby airport. The ingenuity of advertisers and businesses will no doubt continue to find more and more ways to display advertising messages. The purpose of paragraph (f) is to ensure that signs of all types and forms can be regulated.

[47] Second, by including the putting up of a sign under the definition of ‘development’, paragraph (f) makes clear that councils can regulate the putting up of signs even where they are ancillary to a business lawfully being conducted on the same site and could not be regulated as a separate use of land.

[48] Finally, if Parliament had intended that a large panel sign, which in ordinary language would clearly be called a structure, should not be a ‘structure’ for the purposes of the Act, one would have expected that to be expressed in the Act. The respondent could not point to anything in the Act, other than paragraph (f) itself, which indicated such an intention.

[28]APN Outdoor, [45].

1. In the later case of Badger, Dixon J undertakes essentially the same analysis as Cavanough J in APN Outdoor. [29]

   [29]Badger, [35]–[40].

1. In my view, there is a clear distinction between the concepts of use and development as they are expressed in the Planning Act and regulated through the planning scheme. There is no basis not to disaggregate the development of the telecommunications facility and the development of a sign.

1. It is also clear that in the zones and overlays in which the proposed telecommunications facilities and signs are intended to be located there is no exemption for the development or putting up of a sign.

1. Consequently, I am of the view that the decision of the Tribunal is in error in its construction. The categorisation of the proposed use and the planning period triggers that applied at the time that the Tribunal made its decision in March 2022 cannot bind the Tribunal after Amendment VC226 was gazetted.

Ground 1

1. I disagree that the Tribunal did not undertake an analysis of the proposal in the context of the provisions as they apply in June 2023 such that it failed to undertake its statutory duty as alleged in Ground 1. I am of the view that it did undertake an analysis but it misconstrued the version of the MPS in that task.

1. The alternative proposition in Ground 1 was that it was erroneous of the Tribunal to assume and adopt the analysis in respect of permit triggers in reliance on the March 2022 ruling. In my view, to the extent that the Tribunal adopted the earlier ruling, it was in error given the changes to the MPS as compared with the MPS at the earlier time.

Grounds 2 and 3

1. As noted earlier, in essence the gravamen of the issue was the proper construction of the MPS as at June 2023. Grounds 2 and 3 raise this issue more squarely.

1. It follows from what I have set out above that I am of the view that, on the proper construction and effect of Amendment VC226 on the MPS, the Tribunal erred in concluding there was no permit for development required for the proposed development of the signage associated with the telecommunications facility. The effect of clauses 52.19 and 62.02‑1 did not provide an exemption from development permission under the provisions of the MPS to the development of the signage component of the proposal.

1. The Tribunal erred in its construction of the MPS in this regard and in its conclusion that the effect of the MPS as at June 2023 did not require development permission for the proposed electronic signs which formed part of the proposal.

1. The effect of these planning scheme changes in terms of permissions required for the proposal is as follows.

(a)   No permission is required for use of land for a telecommunications facility (clause 62.01).

(b)  No permission is required for use of land for the purposes of signage (there is no contest that there is no permit requirement for the use of land for signage as this use was found to be ancillary to the use as a ‘telecommunications facility’) and the use for signage is a permit exempt use in any event pursuant to clause 62.01 (which exempts from a permit ‘the use of land to display a sign’).

(c)   However, in respect of development permission, it is clear that after Amendment VC226 a permit is required to construct a building or construct or carry out works for a Telecommunications facility which does not fall within the exceptions set out in clause 52.19‑1 (such as that here).

(d)  A permit is required for the development of the proposed electronic signage as it is not a form of development which is exempt under any of the zone or overlay provisions or clause 62.02 of the MPS relating to signage.

RELIEF SOUGHT BY THE APPELLANT

1. At the conclusion of the hearing on 3 October 2023, the Court made orders granting leave to appeal and allowing the appeal,[30] setting aside Orders 2 and 3 of the June 2023 Orders with the appellant to provide a schedule setting out each application and permit required for the construction and/or putting up for display of a sign, pursuant to the applicable provisions of the MPS.

   [30]Transcript, 30, lines 30–31.

1. A copy of the schedule provided by the appellant is attached as Annexure A.

1. The Court also indicated that these written reasons, now provided, would be forthcoming.

ANNEXURE A

Melbourne planning scheme provision

Permit application number

Clause 52.05-2, including Clause 32.08‑14 (General Residential Zone)

TP-2018-1038

Clause 52.05-2, including Clause 34.01‑9 (Commercial 1 Zone)

TP-2018-1058

TP-2018-1087

TP-2018-1141

Clause 37.04-5, including Clause 5.0 of Schedule 1 (Capital City Zone, Schedule 1)

TP-2018-1005

TP-2018-1008

TP-2018-1010

TP-2018-1011

TP-2018-1012

TP-2018-1013

TP-2018-1019

TP-2018-1027

TP-2018-1032

TP-2018-1034

TP-2018-1036

TP-2018-1042

TP-2018-1046

TP-2018-1048

TP-2018-1054

TP-2018-1059

TP-2018-1065

TP-2018-1066

TP-2018-1067

TP-2018-1071

TP-2018-1073

TP-2018-1075

TP-2018-1076

TP-2018-1077

TP-2018-1079

TP-2018-1084

TP-2018-1086

TP-2018-1089

TP-2018-1101

TP-2018-1120

TP-2018-1122

TP-2018-515

Clause 37.04-5, including Clause 5.0 of Schedule 2 (Capital City Zone, Schedule 2)

TP-2018-1015

TP-2018-1040

TP-2018-1045

TP-2018-1049

TP-2018-1053

TP-2018-1061

TP-2018-1064

TP-2018-1069

TP-2018-1095

TP-2018-1098

Clause 43.01-1 (Heritage Overlay)

TP-2018-1013

TP-2018-1034

TP-2018-1036

TP-2018-1038

TP-2018-1049

TP-2018-1058

TP-2018-1061

TP-2018-1064

TP-2018-1065

TP-2018-1067

TP-2018-1087

TP-2018-1095

TP-2018-1122

TP-2018-1141

TP-2018-515