Octopus Media Pty Ltd v Brisbane City Council

[2006] QPEC 61

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Octopus Media Pty Ltd v Brisbane City Council [2006] QPEC 061
PARTIES:	OCTOPUS MEDIA PTY LTD Appellant v BRISBANE CITY COUNCIL Respondent
FILE NO/S:	Appeal No BD1781 of 2005
DIVISION:	Planning & Environment
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	2 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	19, 22, 23, 24 May 2006
JUDGE:	Skoien ACJDC
ORDER:	Appeal dismissed
CATCHWORDS:	LED advertising sign at Albert St intersection of the City Mall; conflict with applicable Local Law and Subordinate Local Law; streetscape; architectural character.
COUNSEL:	Mr DR Gore QC for the appellant Mr PJ Lyons QC and Mr MA Williamson for the respondent
SOLICITORS:	Connor O’Meara for the appellant Brisbane City Legal Practice for the respondent

1. This is an appeal under s.4.1.33B of the Integrated Planning Act 1997 (“IPA”) against the Council’s refusal to grant a licence, pursuant to Local Law No. 1 (Control of Advertisements) (“LL1”), to permit the exhibition of an illuminated advertising device on a building at 130 Queen Street, Brisbane.

Background

1. The site which is the subject of the application is at the intersection of Queen Street and Albert Street, Brisbane (“the intersection”) which is, by common consent, the centre of the Brisbane CBD.  The site, and the building on it (“the Pavilion”) have frontages to the Queen Street Mall and Albert Street.

1. Jo-Jo’s restaurant is on the first floor of the Pavilion and thus has a very visible corner position.  Wrapped around the corner is an open verandah outside the restaurant which thus overlooks the intersection.  The verandah (and its supporting structure) can readily be seen from the intersection and the adjacent areas of the Mall and Albert Street.  An awning, the fascia of which is 660mm. high, wraps around the verandah, standing about 3m. above the ground, with the fascia 1500mm. out from the verandah.  The verandah is a separate piece of real property, being Lot 11 on CP892144.

1. By letter dated 2 February 2005, Octopus made application to the Council for a licence under LL1 to permit the exhibition of a Light Emitting Diode Electronic Display (“LED”) screen to be fixed to the truncated awning at the very apex of the corner immediately outside the Jo-Jo’s verandah.  The dimensions of the sign were stated in the application to be 4.8m. wide by 2.7m. high.  By the date of the hearing of the appeal those dimensions had been reduced to 4.04m. x 2.64m.

1. The State of Queensland, through the Department of Natural Resources, has given its consent to the making of the application.

1. The application was assessed by the Council against the provisions of the then applicable 1999 Local Law Policy (Control of Outdoor Advertising) (“the 1999 Policy”) with some reference to what at that stage was the draft 2005 Advertisements Subordinate Local Law (“the 2005 Policy”).  By letter dated 14 April 2005, the Council advised Octopus that its application had been refused.  It said:

   “The Committee does not support the sign in its current form as it is non-compliant with the Advertisements Policy 1999.  The proposed sign is considered to be an Above Awning sign which is considered inconsistent with policy and cannot be improved.”

2. The Committee referred to was the Advertisements Committee which on 14 April 2005 recorded its decision thus:

   “The proposed sign does not satisfy any category of the current Policy, although it would satisfy the category of Electronic Graphic Display Screen under the 2005 Policy.

   Advertisements Subordinate Local Law 2005, Schedule 4 Conditions, Part 2 Conditions applying to particular types of sign, 15c states “An Electronic Graphic Display screen is not to project beyond the front alignment of a property”.

   The application shows that the proposed sign will be mounted on the awning fascia well beyond the front alignment of the property – this location will not comply with the proposed policy.  Further, mounting the sign in this way will form a Created Awning sign which does not comply with either current or proposed policy.

   It is also obvious that no effort has been made to effectively integrate the sign with the building, which has possibly the most high profile location in Brisbane.

   Recommendation:
   The Committee does not support the sign in its current form as it is non compliant with the policy.”

It is apparent that the letter of 14 April did not accurately reflect the Committee’s recommendation.

The statutory framework

1. The Council’s power to make a local law is given by the Local Government Act 1993 (“LGA”), s.25 not by IPA and it has made Local Law No1 (Control of Advertisements) (“LL1”).  Similarly, its power to make a local planning policy (since 1999 called a subordinate local law – LGA Amendment Act 1999, Schedule 2, Part 2, s.1) is given by LGA (s.853).  It made both the 1999 Policy and the 2005 Policy.  Although there is a general prohibition against a local law or a subordinate local law establishing a process about development within the meaning of IPA if the process would be similar to or duplicate the IDAS process (LGA s.854(1)), until the Council makes a decision under IPA to prepare its second IPA planning scheme (and it has not to this date), the prohibition does not apply for a local law about advertising devices (LGA s.854(1A)). LL1 is not subordinate legislation (Statutory Instruments Act 1992, s.9(2)(a) but it is a statutory instrument, as is a Subordinate Local Law (the 2005 Policy). So while they are not statutes they have authority akin to a statute. See LGAI ss.25, 26, 896, 897(2), 899.

1. Under LL1 s.8(1), a “permitted advertisement” is lawful without the Council’s approval.  It was not suggested in the appeal that the proposal comes within any of the advertisements classified as a “permitted advertisement” under either the 1999 Policy or the 2005 Policy (each authorised by s.23 of LL1).  Accordingly, the Council’s approval was required (LL1, ss.8(1)(b); 9).

1. An appeal to the Court is authorised by s.4.1.33B(1) of IPA “by an applicant who is dissatisfied with a decision of a local government about the use of premises or the erection of a building or other structure permitted by the planning scheme”. In that provision (there being no definition), the word “permitted” should be given its ordinary meaning. Under s.1.3.2(c) of IPA, “development” of the type involving “carrying out operational work” includes “placing an advertising device on premises”.  See the definition of “operational work” in s.1.3.5.  Under Brisbane City Plan 2000, ch. 3, s.1, operational work does not require an application to be made under the Plan.  It is therefore “permitted” to occur without assessment under City Plan (as opposed to the LL1).  This structure reflects the special treatment given by the LGA to advertising devices.

1. Section 9 of LL1 provides that an application may be made to the Council for approval of the proposed exhibition of an advertisement.  The criteria which guide the exercise of discretion are set out in s.10, the relevant part of which is:

“(2)The local government may only approve the exhibition of an advertisement if:

…

(b)     the advertisement causes no significant obstruction of, or distraction to, vehicular or pedestrian traffic; and

…

(d)     the dimensions of the advertisement bear a reasonable relationship to the dimensions of surrounding buildings and allotments so that:

(i)     its presence is not duly dominating or oppressive; and

(ii)     it does not unreasonably obstruct existing views; and

(e)     the advertisement is consistent, in colour and appearance, with buildings and natural features of the environment in which it is situated; and

(f)     the advertisement is in other respects consistent with the character and values of the environment in which it is situated; and

(g)     the approval is consistent with the local law policies.”

Applicable Statutory Control

1. By virtue of s.4.1.52(1) of IPA, this appeal is by way of hearing anew. The ordinary rule is that the Court must decide such an appeal on the laws and policies applying when an application was made to the assessing authority, but may give weight to any new laws and policies the Court considers appropriate (s.4.1.52(2)). However in this case the ordinary rule does not apply because the application is not a “development application”, a precondition to the operation of s.4.1.52(2) of IPA.

1. In those circumstances, the Court is required to determine the appeal according to the state of things existing at the time when the appeal comes to be heard and determined.  See R v Lukin; ex parte Sunshine Pty Ltd [1967] Qd.R 49 at 53; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616. This rule does not preclude the Court from having regard to the law in force on the date the application was made to the assessing authority. So in this appeal, the Court may have regard to both the repealed 1999 Policy and the 2005 Policy but the emphasis is to be placed on the latter.

2005 Policy and 1999 Policy

1. By s.14 of Part 1 of the 2005 Policy, which commenced on 1 July 2005, the 1999 Policy was repealed. By virtue of s.14H(1)(b) of the Acts Interpretation Act 1954 references in LL1 to a “local law policy” are now references to the 2005 Policy.  By s.2 of Part 1 of the 2005 Policy its object is to assist the implementation of LL1.

1. The provisions of the 2005 Policy are somewhat mystic but it is common ground that all of the possibly relevant classes of advertisements require an application to be made to the Council under Part 4 and that the relevant City Environment is the City Centre Environment.   Part 4, section 8 is:-

   “8 Criteria for advertisements permitted with approval
   In considering an application for approval, Council will have regard to-
   (a) whether the advertisement is acceptable in the city Environment in
        which it is to be exhibited; and
   (b) whether approval would satisfy the objectives of the local law; and
   (c) the criteria in Schedule 5.”

and s.9 prima facie incorporates Schedule 4 Part 2 which, relevantly contains:-

“6 Awning fascia sign
An Awning Fascia Sign must be contained within the outline of a fascia and must not exceed 600 mm in height”

“17 Created awning fascia sign

(1)   A Created Awning Fascia Sign must not extend more than 50% of the height of the fascia.

(2)   The created area of the awning, i.e., the area of the sign extending beyond the fascia, must not exceed 25% of the area of the fascia.”

“20 Electronic graphic display screen
An (ECDS) is:-
…
(c) not to project beyond the front alignment of  a property; …”

The Issues

1. The ultimate issue is whether the proposed advertising sign is consistent with LL1 and the 2005 Policy (with some reference to the 1995 Policy).

1. The aspects of non-compliance alleged by the Council are somewhat lengthy and to some extent they overlap.  It is convenient to adopt (and adapt) the summary of the issues agreed between the town planners who were called, Mr Brown (by Octopus) and Mr Vann (by the Council):

   (a)     the appearance of the sign in relation to –

   (i)     the streetscape and vistas;

   (ii)the architectural character of the immediate locality (particularly the Pavilion building);

   (b)     the potential for distraction to pedestrians causing congestion at the intersection;

   (c)     the correct classification of the proposal under 2005 Policy (and the 1999 Policy) and whether consistent with them.

The Sign

1. The sign is to be 4.04m. wide by 2.6m. high and 800mm deep.  It is to weigh 1.5 tonnes and will be supported by steel members fixed to the structure of the Pavilion.  It would have the appearance of sitting on the awning and its screen would be flush with the outer fascia of the awning.  Its wide dimensions would fit within the angled section of the awning at the peak of the corner.  Its top, if viewed horizontally and square on, would be higher than the top rail of the Jo-Jo’s verandah balustrade.

1. It is proposed that the screen will display some five advertisements in a continuous loop, each loop lasting about a minute and each advertisement (which may be moving or static) lasting about 10-15 seconds.  The advertisement may have some connection with premises situated in the Mall but would not be restricted to that.  It would not provide entertainment in the form of a concert, sporting event, or news.  It would not broadcast sound.

1. On behalf of Octopus, Mr Munro gave evidence of the likely effect on pedestrians of the sign.  I thought his assessment was rather pessimistic for a person engaged in the business of attracting the attention of potential purchasers of the various displayed products but I accept what I took to be the thrust of his evidence that pedestrians would be unlikely to be so rivetted by the display as to do more than, perhaps, slow slightly or pause for a second or two.  There is only so much information to be gleaned and entertainment to be had from a ten second advertisement for (for example) Coca Cola.

1. It was submitted by Mr Gore for Octopus (and I thought not disputed by Mr Lyons for the Council) that in contrast with conventional planning appeals (where, nowadays, considerable guidance is usually given by relatively extensive planning instrument provisions), the resolution of the merits issues (issues (a) and (b) in para [17]) involves matters of impression and the application of subjective views.  Put another way, these issues are of such a nature that the answer to them does not involve a clear-cut right answer, or a clear-cut wrong answer, or an answer that is likely to be shared or supported by all or most of the community.  It was submitted that the task for the Court is to act upon its preferred view of the issues, in the light of the evidence and the general provisions of LL1 and the associated policies.

1. I accept that submission.  While I am not entitled to ignore the evidence of experts in the field of architecture and planning and to decide these issues entirely on my own views of them (which are of course not entirely within the purview of experts) it would be deceitful of me to pretend that my own views of these matters, aided by many years of actual experience of the Mall at different times of day and night, will not play a role in my decision.

Streetscape and Vistas

1. In the context of this appeal, “streetscape” should not be restricted to the inanimate objects which make up the Mall, the buildings, street furniture and (although trees are not inanimate), the trees within the Mall and visible beyond it.  Mr Gore was correct when he referred to the following criteria which can be found in the City Centre Local Plan stating that:

   Under the City Centre Local Plan, the City Centre is “the focus of City life and entertainment”, is to be a “socially vital metropolitan and regional centre”, is a place which exhibits “vitality, interest, charm and attraction”, is to involve a streetscape in the retail heart that will “convey to shoppers and tourists that this is a major specialist retailing, service and entertainment location with a high level of public amenity”.

2. I accept also his submission that the retail heart of the Central City is intended to provide for a range of activities having a high degree of vitality and energy, generated by shoppers and tourists using retailing, service and entertainment facilities.  It is expected that pedestrian spaces will be used intensively and this is encouraged by the range of uses provided for in the retail heart.  The intersection is a dynamic place with continuous visual and auditory stimulation for most of the day and well into the night and, while it has been designed as a pedestrian thoroughfare, its strategic location and shade structure (a recognised feature in sub-tropical central Brisbane) as well as the presence there of a number of high-turnover restaurants and Hungry Jack’s fast food establishment have made it an easily identifiable central place for people of all ages and interests.  But the statutory planning documents make it clear that all of this is to be gained without compromising the streetscape, the available vistas and the architectural character of the Mall.  See para [11] above;  2005 Policy, s.8; Schedule 5.

1. The architecture of the buildings in the Mall varies to some extent, particularly in the Albert Street to Edward Street arm where the historic facades of the buildings have not been as faithfully preserved as they have in the Albert Street to George Street arm.  This is particularly so in the lower half of the Edward Street arm, commencing at about the mid point.  In the upper section of that arm, at the intersection and diagonally opposite the Pavilion is the relatively modern T&G building.  However that building has a weather protecting awning which incorporates the horizontal elements said by Mr Mainwaring, the architect called by the Council, to be striking and important elements of the Mall architecture, so to that extent it continues the architectural theme of the Mall.  Indeed on both sides of the Edward Street arm the awning element exists in traditional form from the intersection down to about the mid point.

1. That horizontal awning element is particularly evident in the George Street arm and especially on the side which extends down to the Pavilion.  Indeed the awning continues around the corner into Albert Street for a substantial distance, to Burnett Lane.  To almost the same extent a continuous awning is a feature of the other side of the Mall in the George Street arm.

1. Thus, for the section of the Mall which is readily visible from the intersection the horizontal awning element is a striking and an important architectural feature.  How do existing signs relate to it?

1. Almost all the advertising signs in the George Street arm, and most of those in the Edward Street arm, hang from the awning and are identification signs, that is, they identify the adjacent premises.  In general they are relatively small.  The notable exceptions are the “Regent” sign in the mid point of the Edward Street arm and two “Hungry Jacks” signs at the intersection.  These are vertical signs, at right angles to their building, and attached to it above the awning line.  The former is probably out of sight of the intersection, the latter are, of course, readily visible from it.  I consider that they should be classified as special cases.  They are of some antiquity and I am confident that any attempt to remove them would bring protests.  One or two other somewhat similar signs are well removed from the intersection and probably out of sight of it.  There are a few signs which are actually on the fascia of the awning but not extending above or below the dimensions of the fascia.  Only a couple of those would be visible from the intersection.

1. Some reliance was put by Octopus during the hearing on the free standing buildings within the Mall.  They comprise cafes, a fruit juice bar, an entertainment stage and a newspaper/magazine/lottery kiosk.  All of them are of modernistic design.  Some, notably the fruit juice bar and the kiosk, are well endowed with bright neon advertising signs.  Some of those are arguably “above-awning” signs.  No doubt they contribute substantially to the success of the Mall and particularly to the attainment of the objects described in paras [23] and [24].  But in my opinion, by their very design and functions they fall into a category quite different from the buildings lining the Mall, including the Pavilion.

1. The case for Octopus put some weight on the presence, at the top floor of the Pavilion, at the corner, of a jeweller’s shop which at night has on the central window an illuminated sign which is projected from inside onto it.  I did not see it operating but Mr Kamst did.  He said, and I accept, that it was not readily apparent.  And of course it is completely contained within the window aperture.

1. The evidence was that it is likely that another LED sign will be approved, at the entertainment stage at the mid point of the George Street arm.  That, however, is not relevant to this appeal.  It is likely to be a screen projecting forms of entertainment but it will be in a place specifically designed for entertainment.

1. Nor do I obtain any assistance from evidence about two LED signs which Octopus operates in Melbourne.  Neither is in an architecturally sensitive site such as the Mall; neither is in a pedestrian area such as the Mall.

1. Leaving aside the classification question (issue (c)) and the pedestrian question (issue (b)) it seems to me that the proposed sign would fit very uneasily within the streetscape of the Mall.  The various photo-montages, especially exhibit 13, give me a good idea of what it would look like.  It is undeniably bulky, not just in its screen dimensions but (and perhaps more tellingly) in its depth.  It would surely present as a large bulky box.  It would be bigger and more obtrusive than any other sign in the area.  It would interfere with the horizontal element created by the awnings in the Mall.  I doubt that anyone would venture to suggest that it provided an architectural or aesthetic addition to the Mall in general or the intersection in particular.  Rather, I think comment on its appearance would be generally uncomplimentary.  I consider that it would detract from available vistas (that is, framed or avenue views) in particular that along Albert Street, over King George Square, to the treed area beyond.  It would distract the viewer.  All of these things lead me to the conclusion that the proposed sign conflicts with s.10(2)(d), (e) and (f) of LL1.

Architectural Character

1. It seems to be obvious that the most relevant architectural character of the Mall is the substantially unbroken horizontal awning, in particular the one which wraps around the corner on which the Pavilion stands.  What I have said about streetscape in that connection is applicable.  Of further relevance is the effect the sign would have on the Pavilion building itself.

1. The evidence of Mr Mainwaring on the point emphasised the lack of consistency between the bulky sign and the light, translucent structure of Jo-Jo’s verandah.  The sign will not be incorporated within an aperture of the building such as a window or set between prominent columns but will stand out from the verandah into the Mall itself a total of about 1.5m.  While no one suggested that the Pavilion is a building of outstanding architectural value it was established by the evidence to be of generally pleasing appearance and to possess features sympathetic with the horizontal symmetry of the Mall.  In my view the sign would tend to degrade the Pavilion’s appearance, to the detriment of the area and it would be in conflict with s.10(2)(d), (e) and (f) of LL1.

Pedestrian Traffic

1. As I said in para [20] above I do not see the sign, if installed, causing pedestrians to do more than pause.  I did not take Mr Beard, the traffic expert called by the Council, to say that serious congestion was likely.  Indeed, as both he and Mr Holdsworth said, their evidence really did not fall within the classification of expert traffic evidence; it was more the opinions of traffic experts on the numbers of pedestrians to be expected on the intersection and their possible reaction to the display of advertisements of greater or lesser interest.  I do not think that any conflict with s.10(2)(b) of LL1 has been established.

Classification of the Sign

1. The proposed sign is obviously an Electronic Graphic Display Screen (“EGDS”) because it precisely fulfils the definition of an EGDS in Schedule 1 of the 2005 Policy which is:-

   “An ‘(EGDS)’ is a sign usually including Light Emitting Diode technology and associated technology and software, capable of producing still images, video replay and live television broadcasts and animations as programmed.”

2. Section 20(c) of Schedule 4, Part 2 of the 2005 Policy states that an EGDS is “not to project beyond the front alignment of a property”.  The relevant property in this appeal is Lot 11 on CP892144 which is the Jo Jo’s verandah.  This screen would project 1.5m beyond the front alignment of that property.  That is a very substantial projection and is clearly inconsistent with the policy so that, if one reads s.9(2)(g) literally the sign may not be approved either by the Council or by this Court.  In my view, even if one allowed s.9(2)(g) some flexibility, this projection is simply so big that the Policy provision is offended by it.

1. It seems to me that the illustration in Schedule 1 of the 2005 Policy of an EGDS on the façade of a building and above an awning cannot be taken to be a statement of where such a screen is to be placed.  Obviously an LED screen can be placed in many different positions.

1. In my opinion the placement of this LED sign makes it undoubtedly an “above awning sign” which is described in Schedule 6, Prohibited Signs, as “An above Awning Sign is an advertisement above an awning, verandah, roof or the like”.  This sign will stand above, and stand very much above, the awning outside the Jo Jo’s verandah.  It is true that the illustration given in the Policy for an above awning sign is not like the proposed sign but it is only an illustration of one type of such a sign.  It is thus a prohibited sign.

1. The 2005 Policy limits acceptable signs on awnings to those which sit within the fascia of the awning (an “awning fascia sign” – see Schedule 1 – there are a few of these in the Mall) or under the awning (an “under awning sign” – see Schedule 1 - there are many such in the Mall) or on the fascia of the awning (a “created awning facia sign” – see Schedule 1).  I understood Mr Gore to argue that this LED sign could fit within the created awning fascia sign category but I reject that.  Reference to the criteria quoted in para [15] above and to the dimensions of the proposed sign (para [18]) above demonstrates that it greatly exceeds what is contemplated for the created awning fascia sign category.  The height of the fascia is 660mm; the height of the sign is to be 2600mm.  Under the 2005 Policy a vertical extension of about 330mm would be allowable; the extent of the over-run is about 1940m, about six times that.  The area of the sign extending beyond the fascia is obviously much greater than 25% of the fascia, that is the area covered by the sign.

1. Thus I have found several inconsistencies between the proposal and the statutory requirements of LL1  and the 2005 Policy.  Without descending into detail I have found nothing in the 1995 Policy which would alter the situation.   Materially it is very similar to the 2005 Policy which, in any event, is the more relevant applicable law.  The inconsistencies relate to the streetscape, the vistas, and architectural considerations.  Mr Gore referred me to authority for the proposition that “inconsistent” is a flexible concept, for example, Flanagan v Australian Prudential Regulation Authority (2004) 138 FCR 286 @ 296-7. That is no doubt true but here I find the inconsistencies to be too major to be excused.

1. Mr Gore also referred to Stoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517 as authority for the proposition that policy does not constitute a binding rule unless a statute so provides. See at p.522. As to that, LL1 and the 2005 policy are each akin to a statute (see para [8] above) and s.10(2)(g) of LL1 forbids the Council to approve an advertisement which is not consistent with the 2005 Policy.

1. Finally, I have found as a fact that the proposed LED sign is an above awning sign and that is expressly forbidden by Schedule 3 of the 2005 Policy for this area (indeed all areas) of the City.  It also projects beyond the property line too far to be acceptable, and offends the existing streetscape and architectural character and it impedes vistas.

Conclusion

1. The appeal is dismissed.