Metro Signs Pty Ltd v Moreton Bay Regional Council

[2009] QPEC 116

[2009] QPEC 116

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

No BD2877 of 2009

METRO SIGNS PTY LTD	Appellant
and
MORETON BAY REGIONAL COUNCIL	Respondent

BRISBANE

DATE 23/11/2009

Ms N Kefford for the Appellant
Mr M Sheehan for the Respondent

JUDGMENT

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – Operational works for an advertising sign – appeal against condition requiring height to be reduced from 7 m to 5 m – compliance with relevant provisions of applicable codes – whether sign would be “subservient” to the desirable characteristics of the built and natural environment or would have a significant adverse effect on the desired or established character of the area
HIS HONOUR:  This is an appeal against a condition attaching to an approval of operational works to facilitate the erection of an advertising sign on land at Lot 901 Old North Road, Warner and more particularly described as Lot 901 on SP193317.

The application sought an approval to erect a pylon sign, of 7 m in height, in front of a service station building which is being constructed on the site.  The application was approved subject to a condition which required the pylon sign to be reduced in height from 7 m to 5 m.  It is that reduction which is controversial in this appeal.

The site is located on the western side of Old North Road, approximately 100 m south of the intersection of Old North Road and Stanley Street and north of the intersection with Kremzow Road.  The service station forms part of a larger area which has been the subject of a preliminary approval to create a southern business centre, including a child care centre, office and service station.  That preliminary approval has force, notwithstanding that the zoning of the land remains unchanged, as being within the Residential A zone.

The service station is the first of the commercial uses to be developed in the southern business centre.  The larger site is of some 11,270 m², with the service station occupying some 2,221 m².  The balance of the land forms an L-shape around the service station, such that it is likely that there will be future commercial development both to the south and to the west of the service station. Residential development, in the form of single detached housing, is developing around that larger site. The residential development which has occurred to date has been predominantly of a single level nature.

The service station is itself separated from the boundary with residential land to the north.  The plans, which are Appendix G to Exhibit 1, show a setback area and then other space between the service station building proper and the common boundary to the north.  The residential housing is buffered from the subject site and also from Old North Road by acoustic fencing and so relatively little of the houses can be seen.

As one travels along Old North Road, in a northbound direction towards the subject site, one travels up a hill immediately prior to getting to the service station site, which sits near the crest of the hill, in terms of the road.  The road then flattens out where it fronts residential development.  There is no residential development between the intersection of Old North Road and Kremzow Road and the subject site.

The proposal became Code assessable, rather than self-assessable, because of its failure to adopt all of the acceptable solutions, one of which was that the overall height above finished ground level be no more than 5 m.  Because approval was sought for a 7 m sign, it became Code assessable and the relevant codes were the Relevant Locality Code, the Advertising Signs Code and the Site Earthworks Code.  The last of those codes is irrelevant to the issues in dispute in this appeal.

The Relevant Locality Code contains a specific outcome for advertising signage, which is as follows:  “The proposed height, area and number of signs is appropriate to the size, nature and location of the development.”   No probable solution is identified for that specific objective.

The debate focussed more upon the Advertising Signs Code, the overall outcomes for which are set out in s 2.1.  Particular attention was drawn to 2.1(2)(a)(b) and (c).  The Advertising Signs Code reflects those overall outcomes in a number of specific outcomes.  The one which attracted most debate was Specific Outcome 2, which provides as follows:

“SO2.  The form, location and extent of advertising signage allows for the reasonable commercial and promotional needs of the advertiser while:

(1) being subservient to the desirable characteristics of the built and natural environment of the immediate surrounds to the signage;

(2) not having a significant adverse effect on the design or established character, streetscape and environmental values of the area;

(3) minimising any potential adverse effects on adjacent premises;

(4) minimising any potential distractive effect on vehicular traffic in the vicinity of the signage;

(5) minimising any potential visual clutter;

(6) taking into account the rights of all users of public areas in terms of access and safety.”

The last four of those subparagraphs were not controversial. 

In relation to the introductory paragraph to SO2, attention is focussed upon the reasonable commercial and promotional needs of the advertiser.  Mr Gary Fulton, the managing director of the appellant, gave evidence in relation to his desire for a 7 m sign to fulfil the promotional requirements of his client, 7-Eleven. He pointed out that 7-Eleven is primarily a convenience shop outlet, not an oil company, and that the convenience shop aspect of the service station was a significant matter for his client.

The 7 m sign provides ample room to have an appropriate branding element for 7-Eleven, an area to display the price of fuel as well as a further area to allow some advertising of the services offered at the 7-Eleven, including whether it offers an ATM facility and some of its products.  As it happens, pending this appeal, the appellant has constructed a sign on the subject site to the 5 m height.  In order to do that it has effectively deleted the area which would otherwise be available to advertise certain products of the 7-Eleven business. 

Certainly, the desire to advertise those various functions is not unreasonable and the sign, as Mr Fulton points out, is of a size which is commonly experienced.  He referred to it as being somewhat of a national standard, within his business, to provide signs of that height to a number of different types of businesses.  It is certainly a sign of a size which one sees commonly as part of ordinary, everyday experience.

It was pointed out, on behalf of the Council, however, that there was no reason why a sign of 5 m could not be constructed in such a way that it included elements of all of those three items.  Further, to the extent to which one item had to be deleted, there is room to erect some wall advertising on the service station building itself, within the bounds of what is self-assessable under the planning scheme.

In the circumstances, whilst one could not say that the wishes of Mr Fulton are unreasonable, on the other hand, it could not be said that a 5 m sign would not also fulfil commercial and promotional needs at least to a reasonable extent.

Whichever way one looks at that, however, the question ultimately comes down to looking at the first two subparagraphs of the specific objective.  That is because, even if a 7 m sign were required to provide for the reasonable commercial and promotional needs, the specific objective is that those needs are met whilst achieving the matters referred to in the subparagraphs.  Therefore, one needs to achieve all of those things.

It has already been noted that the controversial aspects of compliance with SO2 relate to the first two subparagraphs. The first of those focuses upon whether the signage is, by virtue of its form, location and extent “subservient” to the desirable characteristics of the built and natural environment of the immediate surrounds to the signage. 

The term “subservient” is a word of ordinary meaning.  It carries no technical meaning in this part of the planning scheme.  One of the meanings attributed to it in the Australian Concise Oxford Dictionary is “subordinate” which, in turn, is defined to mean “of inferior importance or rank”.  Neither side cavilled with that as an appropriate definition for the purposes of assessing compliance with subparagraph 1 of SO2.

Before coming to a conclusion, one also needs to assess the desirable characteristics of the built and natural environment of the immediate surrounds to the signage.  In this case the service station sits towards the top of a hill where the landscape is relatively open.  However, it also sits to the north of larger, more mature vegetation which exists in the vicinity of the intersection of Old North Road and Kremzow Road.  The consequence is that, as one views the site from the north heading south, the service station and the sign, whether it be of 5 or 7 m in height, would be seen in the context of a backdrop of vegetation which extends above those built elements.

Mr Taylor, the town planner for the Council who gave evidence, did not take particular issue with the way that the sign sits with that vegetation from that perspective.  His concern was more to do with the view as one approaches from the south, heading north.  He pointed out that, as one is driving up the hill, one would see the advertising sign silhouetted against the sky.  That is true, but that is largely a function of the elevation of the road.  One would see either a 5 or a 7 m sign silhouetted against the sky as, indeed, one sees the service building itself silhouetted against the sky.

In my view, the sign, whether it be 5 or 7 m, can be said, in the circumstances, to be subservient to the desirable characteristics of the natural environment.

Attention then turns to the built environment.  Reference was made, in that context, to both the existing service station site and also to residential development within the locality.  That residential development is, however, as I have already noted, separated from the service station site.  Further, the sign itself is proposed to be located at a mid point along the frontage of the service station site and, indeed, perhaps somewhat to the southern end of the service station, as appears in the approved plans, which are appendix C to Exhibit 1.

As one travels from the south towards the north, which is the approach in respect of which Mr Taylor expressed a particular concern, the present residential uses further to the north do not come within view.  Whilst there is some further residential development to occur, the majority of that residential development will, as Mr Sheehan, the planner for the appellant, pointed out, be shielded from view of the sign by the service station building itself.  Accordingly, as Mr Taylor conceded in his evidence, the sign will primarily be seen in the context of the service station site in terms of its relationship to the built form viewed from the direction which was most relevant to him.

It should be noted that the reasonable expectations in relation to future development in that area will include commercial development around the service station, on the site the subject of the preliminary approval.  As Ms Kefford fairly pointed out, that development is also likely to be of a single storey nature, but it is likely to be of a commercial scale.

The remaining issue, so far as subparagraph 1 of SO2 is concerned, is to assess whether the advertising sign by reason of its form, location and extent would be subservient to the desirable characteristics of the built form.  That ultimately comes down to a matter of judgment, about which views may differ.  In order to determine which opinion I should prefer, I had the benefit of helpful photo montages from Mr Elliott, whose work has often been presented in this Court.  In relation to those photo montages it should be noted that the built form of the service station is depicted in a partly constructed way.  Since then, the service station construction has continued and it no longer appears as a dark grey colour, but has been coloured in the corporate colours of 7-Eleven.  The photo montages tend to understate the impression of the bulk and scale of the building, which becomes more apparent with the completion and colouring of that element.

Further, as Mr Taylor pointed out, a proper appreciation of the relationship of the sign to the built form is aided by a site visit.  I had the benefit of a site visit to assist my comprehension of the evidence that was given about this topic.

In dealing with this question of subservience, Mr Taylor placed a lot of weight upon matters of the relative height of the sign compared with the predominant height of the built form of the service station.  The service station shop itself is a little under 5 m in height.  The canopy, which sits over the bowsers, sits at 5.5 m and there is then what was referred to as a blade structure, which extends to a height of 8 m.  The blade structure itself is 3 m wide and so is both wider and taller than the proposed advertising sign.

The question of subservience is not to be answered by reference simply to the question of height.  The specific objective refers to form, location and extent.  The overall outcomes of the Advertising Signs Code refer, in subparagraph 2(c), to form and scale being subservient and complementary.

There is a more significant commercial area further removed to the north along Old North Road.  It features a range of advertising signs, one of which is of the order of 10 m and the lowest of which is around 5 m.  It also has a sign, approved under the current planning regime, for a McDonald’s at 7.5 m, which is higher than the built form of the McDonald’s restaurant in that location.  Mr Taylor pointed out that, although the McDonald’s sign was higher, it was, nevertheless, seen to be subservient, because of the scale of commercial buildings in that locality.  So, as he impliedly conceded, the question of subservience and the question of scale must take into account matters other than simply height.  Ultimately, as I say, this comes down to a matter of fact, degree and judgment and I had the benefit of the completing views of Mr Sheehan and Mr Taylor in this respect.

Ultimately, what Mr Sheehan relied upon was the scale of the service station building, including its blade, and the likelihood of commercial scale buildings around that, compared with the advertising sign which is obviously smaller than the built form and also lower than its maximum height.

Mr Taylor was concerned particularly with the view from the south to north because of the sign’s separation from the service station building which, in his view, made it more dominant and called for a reduction of height.  In his view even a reduction to 5 m would not solve the problems which he saw in scale, but he was prepared to accept the Council’s decision in that regard.

The height of 5 m is referred to as one of the probable solutions in SO2.  Under the planning scheme a probable solution is said to provide a guide for achieving the outcome in whole or in part (see clause 4.12 of the planning scheme). Hence, the 5 m is not an absolute standard, it is simply a guide to achieving the specific outcome.  In this case it is necessary to consider whether a different height, namely 7 m, still conforms.

In my view, when one has regard particularly to the service station building and its scale, as well as its height, the sign, at 7 m, would maintain a subservient relationship to the desirable characteristics of the built form.  In that respect I prefer the evidence of Mr Sheehan.

It seems to me that, as Mr Taylor said in his report, the “service station building including the new constructed blade element is clearly visible, dominating the skyline particularly when approaching the subject site from the south”.  In my view, it is the service station building, approved by the council, which provides the dominant built form element and the advertising sign will have a subordinate or subservient relationship to the built form in the immediate surrounds to the signage, which is heavily influenced by the dominant built form of the service station.  In my view, that will remain the case notwithstanding the effect of separation between the service station building and the sign and the sign’s closer proximity to the street.

Accordingly, I find that the advertising sign, at 7 m, would be compliant with subparagraph 1 of the specific objective. 

Subparagraph 2 relates to whether there would be an adverse effect on the desired or established character streetscape and environmental values of the area.  Ms Kefford acknowledged that the environmental values were not a matter in issue in this case.

Insofar as the character and streetscape is concerned, it was pointed out by Mr Sheehan, and conceded by Mr Taylor, that the town planning scheme does not say anything in particular about the desired character or streetscape in this area.  In terms of the established and developing character, as has already been noted, the character, more broadly, is of a residential kind, however, the particular site upon which the service station sits is part of what will become a southern business centre.  Accordingly, the planning for this area is consistent with a character and streetscape featuring a commercial node in an otherwise residential context.  I prefer the evidence of Mr Sheehan to the effect that the advertising sign, whether it be at 5 or 7 m, will not have a significant adverse effect on the desired or established character or streetscape of the area.  That applies whether one views it from the north or from the south.

Accordingly I am of the view that the advertising sign at 7 m is compliant with SO2.  I am also satisfied that it is compliant with the overall outcomes in the Advertising Signs Code.

I am also satisfied that it is consistent with SO12 of the Relevant Locality Code because, in my view, the proposed height, looking at height as a specific consideration, as it is for SO12, as well as the area of the sign, is appropriate to the size, nature and location of the development.  In that regard I am conscious that the site does sit towards the crest of a hill, however, as I have already pointed out, the sign is to be for the purposes of, and immediately adjacent to, the rather dominant built form of the service station, which rises to 8 m in height and includes an element at that 8 m maximum height which itself is larger, in terms of its scale as well as its height, than the proposed advertising sign.  Given that that use will then sit in the context of a commercial node, in my view, the proposed height and area of the sign is appropriate in relation to the size, nature and location of the development.

Accordingly, I prefer the evidence of Mr Sheehan to the effect that the sign, at 7 m, is compliant with the applicable codes and I will allow the appeal. 

I allow the appeal.  I order that the application be approved subject to the conditions set out in the decision notice, save that condition S4 be deleted and the required amendments in condition 1 also be deleted.