PRIMEDIA TECHNOLOGY and CITY OF CANNING
[2024] WASAT 14
•5 MARCH 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PRIMEDIA TECHNOLOGY and CITY OF CANNING [2024] WASAT 14
MEMBER: MR R POVEY, MEMBER
HEARD: 12 DECEMBER 2023
DELIVERED : 5 MARCH 2024
FILE NO/S: DR 86 of 2023
BETWEEN: PRIMEDIA TECHNOLOGY
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Town planning - Development application - Digital sign intended to display third party advertising - Billboard sign - Pylon Sign - Use not listed - Private Community Purposes zone - Is the proposed land use consistent with the objectives of the Private Community Purposes zone - Compatibility with setting - Amenity impacts - Whether cogent reason to depart from local planning policy
Legislation:
City of Canning Local Planning Scheme No 42, c l3.1.2, cl 3.3.4, cl 3.3.4 (c)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67(2), cl 67(2)(a), cl 67(2)(b), cl 67(2)(g), cl 67(2)(m), cl 67(2)(m)(i), cl 67(2)(m)(ii), cl 67(2)(n), cl 67(2)(w), cl 67(2)(x)
Planning and Development Act 2005 (WA), s 250(1), s 252(1)
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
| Applicant | : | G Janssen |
| Respondent | : | CA Slarke |
Solicitors:
| Applicant | : | Janssen & Maluga Legal Pty Ltd |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
G & G Corp Asset Management Pty Ltd and Presiding Member, Metropolitan East Joint Development Assessment Panel [2018] WASAT 9
John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19
Re Romato; Ex parte Mitchell James Holdings Pty Ltd, [2001] WASCA 286
Reid v City of Gosnells [2023] WASC 48
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Warr and Town of Cambridge [2020] WASAT 126
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Primedia Technology (applicant) seeks approval for third party digital advertising signage (proposed development) at No 135 (Lot 621) Sheffield Road, Welshpool (subject site).
On 5 May 2023, the City of Canning (respondent or City) refused to grant development approval.
The applicant seeks review of that decision pursuant to s 250(1) of the Planning and Development Act 2005 (WA) (PD Act). However, this is incorrect[1] and I will make an order amending the Application for Review to come under s 252(1) of the PD Act.[2]
[1] Section 250(1) relates to a decision as to development in a planning control area. The subject site is not identified as being in a planning control area.
[2] Section 252(1) relates to a decision made in the exercise of discretionary power under a planning scheme.
For the reasons given below, I have determined that 'the correct and preferrable decision' is to dismiss the application for review and affirm the decision of the respondent.
The subject site
The subject site is an irregularly shaped lot, located adjacent to the intersection of Roe Highway and Welshpool Road East (in the north east corner). However, it fronts (and is accessed from) an extension of Sheffield Road which passes under Roe Highway.
The subject site is more particularly known as Lot 621 on Plan 3478 being the whole of the land comprising Certificate of Title Volume 2065 and Folio 77 and has an area of 4,927m2.
The subject site is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and under the City of Canning Local Planning Scheme No 42 (LPS 42) is zoned 'Private Community Purposes'.[3]
[3] Respondent's Statement of Issues, Facts and Contentions, (SIFC) para 7, Exhibit 2.
Club Fiumano E Guiliano Incorporated (the Club) owns the subject site and uses it for club purposes. The Club building was constructed in 1983 (extended in 1990) and at that time, the subject site had direct access from Welshpool Road East.[4]
[4] Witness Statement of Callum Wilson, para 21, Exhibit 4. As was observed at the view, the subject site can now only be accessed by an extension of Sheffield Road, which passes under Roe Highway.
The locality
The respondent called Mr Callum Wilson, a planning expert, to give evidence.[5] In his witness statement, Mr Wilson identifies the extent of an immediate and a wider locality.[6] The immediate locality is described as the subject site, the immediately abutting roads of Welshpool Road East and Roe Highway and the adjoining reserved land (an area approximately 100 metres from the subject site). The wider locality is identified by Mr Wilson as an area approximately 200 metres from the boundaries of the subject site and includes:
(a)the area to the west of Roe Highway extending to Orrong Road,[7] mainly being within the Primary Regional Road Reserve;
(b)Roe Highway (running north-east and south-west bound) from which the signs will be visible; and
(c)several properties on Puddy Lane, Myall Close and Sesslis Crescent in Wattle Grove (located east of the subject site and in the City of Kalamunda).[8]
[5] The applicant did not call an expert planning witness. I will return to this later at [24] – [25].
[6] Witness Statement of Callum Wilson, paras 24 – 25 and Attachment C, Exhibit 4.
[7] Attachment C indicates that Orrong Road changes its name to Welshpool Road East at the intersection with Roe Highway.
[8] Puddy Lane and Myall Close were observed as part of the view and the properties (single houses) which were a focus at the hearing are in Myall Close.
The locality also includes a rail reserve to the east of the subject site, with rail lines running north-south. Welshpool Road East bridges over the railway lines and consequently Welshpool Road East is at an elevated level (4.9 metres above)[9] in proximity to the subject site.
[9] Respondent's s 24 Bundle of Documents, page 36, Exhibit 3.
Similarly, Roe Highway (west of the subject site) is at an elevated level to the subject site and Orrong Road/Welshpool Road East and Sheffield Road pass under this highway.
When considering the extent of the locality, the Tribunal in Ridgecity Holdings[10] stated:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
[10] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity Holdings) at [42].
Considering these principles in Ridgecity Holdings and the uncontested evidence of Mr Wilson, I am satisfied, and I find, the extent of the relevant locality is the immediate locality and the wider locality described above at [9] – [11].
The proposed development
The applicant seeks approval for the development of third-party digital advertising (in the form of two signage panels mounted on a single steel column) at the subject site. The proposed development includes:[11]
(a)One signage panel facing eastwards and the other facing westwards and the signs will be visible to eastbound and westbound traffic on Welshpool Road East.
(b)The digital screen of each sign has dimensions of 12.66 metres wide and 3.35 metres high, with an area of 42.41m2.[12]
(c)The signs are to be mounted approximately 11.15 metres above natural ground level and will be 30 metres from the road carriageway (of Welshpool Road East). The overall height of the support column and the signage panels is 14.5 metres above ground level.
(d)The sign facing westbound traffic will have a message dwell time of a minimum 35 seconds, while the sign facing eastbound traffic will have a minimum dwell time of 24 hours.[13]
[11] Respondent's SIFC, para 13, Exhibit 2.
[12] For completeness, under each digital screen will be a grey mesh cladding panel extending the full length, to a height of 1 metre, Respondent's s 24 Bundle of Documents, page 35, Exhibit 3.
[13] At the final hearing (hearing), based on the letter of Main Roads Western Australia (MRWA) dated 26 April 2023 (Respondent's s 24 Bundle of Documents, page 105-106, Exhibit 3) the parties agree that, if the proposed development is approved by the Tribunal, a minimum 35 second dwell time should apply to both signs. See ts 17 – 18 and 81, 12 December 2023.
Planning framework
The relevant planning framework which I have considered in determining the application includes:
(a)MRS;
(b)LPS 42, which incorporates the Deemed Provisions;[14] and
(c)City of Canning Local Planning Policy LP07 Advertising Signs (LP07).[15]
[14] The 'Deemed Provisions' are contained in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
[15] The version of LP07 in the Respondent's s 24 Bundle of Documents is incorrect (pages 109 – 126, Exhibit 3) – see Witness Statement of Callum Wilson, para 47, Exhibit 4. The correct version is found at Applicant's Bundle of Documents, pages 110 – 129, Exhibit 8 and at Attachment E to Witness Statement of Callum Wilson, Exhibit 3.
The matters in cl 67(2) of the Deemed Provisions which, in my view, are addressed in the parties' submissions and in the evidence before me, and to which I am to have due regard, are as follows:
…
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting, including —
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following —
…
(ii)the character of the locality;
…
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
…
(za)the comments or submissions received from any authority consulted under clause 66[.][16]
[16] This related to comments received from MRWA, see Footnote 13.
Procedural history
On, or around, 22 December 2022 the applicant lodged an application for development approval for third party digital advertising at the subject site.
This application was referred to MRWA and on 13 February 2023, MRWA advised it did not support the eastbound facing sign,[17] but subject to conditions could support a single sided installation facing westbound traffic on Welshpool Road East.
[17] Because the eastbound facing sign did not comply with the MRWA 'Policy and Application Guidelines for Advertising Signs Within and Beyond State Road Reserves'.
On 20 March 2023, the applicant submitted an amended application (which is the proposed development now the subject of this review).
On 26 April 2023, MRWA confirmed it does not object to the amended application (which includes a double-sided sign installation) on safety grounds, subject to suitable conditions.[18]
[18] Respondent's s 24 Bundle of Documents, pages 105 – 106, Exhibit 3.
On 5 May 2023, the respondent refused to grant development approval for four reasons:[19]
[19] Respondent's SIFC, para 27, Exhibit 2.
(1)The proposed development does not comply with subclause 67 (2) (g) of Schedule 2 Deemed Provisions of the Planning and Development Act (Local Planning Scheme) Regulations 2015, as follows:
(a)Clause 3(g) of the City of Canning Local Planning Policy LP.07 (Advertising Signs) notes that advertising signs on private land shall not contain advertising content for;
i.A company or organisation that does not own or substantially occupy the site; or
ii.A product or service not provided on the site; or
iii.a product or service that does not form part of the signage displaying the name, logo or symbol of a company or other organisation that owns or substantially occupies the site; and
iv.an activity or event not occurring on the site.
(b)Clause 5 of the City of Canning Local Planning Policy LP.07 (Advertising Signs) in Table 1, notes that all Hoarding (Billboard) signs are limited to a height of 5m above ground level and a maximum area of 20m2. All Digital Format signs are limited to a maximum screen area of 20m2.
(2)The proposed development does not comply with subclause 67(2)(m) of Schedule 2 Deemed Provisions of the Planning and Development Act (Local Planning Scheme) Regulations 2015. In this respect, the development is not considered to be compatible with the desired future character of its setting nor is the scale and advertising content considered compatible with the locality.
(3)The proposed development does not comply with subclause 67(2)(n) of Schedule 2 Deemed Provisions of the Planning and Development Act (Local Planning Scheme) Regulations 2015. In this respect, the development is considered to jeopardise both the amenity and character of the locality. The development would also set a precedent for large third-party signage within the locality and encourage the proliferation of such signage, much to the detriment of the City's character and amenity.
(4)For the reasons outlined in reasons 1 – 3 (inclusive) above, the proposed development is not in keeping with the requirements of orderly and proper planning.
On 8 June 2023, the applicant lodged an Application for Review of the refusal with the Tribunal. Following mediation, the matter was programmed for hearing.
The hearing and evidence
The hearing was conducted on 12 December 2023. At the commencement of the hearing I, together with counsel for the parties, Mr Wilson, and another officer of the City and a representative of the applicant, undertook a view of the subject site and the surrounds. We also visited the interior of the Club premises at the subject site.
Prior to the hearing, the applicant's counsel, Mr Janssen, advised the Tribunal, by letter of 22 November 2022, that 'the Applicant will not be submitting any signed witness statements or expert signed witness statements beyond those documents which have already been submitted …'.
On 5 December 2023, I scheduled a directions hearing with the parties and raised this correspondence with Mr Janssen, as decisions of the Tribunal must be found within the evidence.[20] Despite this, the applicant decided to proceed to hearing without expert evidence.
[20] This is consistent with the observations of his Honour Keifel J in Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [25], as cited in Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 at [40].
Following this directions hearing, the respondent, on 6 December 2023, filed a Supplementary Witness Statement of Mr Wilson which also contained a photo simulation of the proposed development prepared for the respondent by Urbis (a planning consultant).[21]
[21] Supplementary Witness Statement of Callum Wilson, Exhibit 5.
In response, Mr Janssen, by letter of 11 December 2023 (the day before the hearing), advised the applicant would seek to call Dr William Burn, the pilot of drone footage prepared for the applicant.[22]
[22] Exhibit 10.
At the hearing, the witness statement and supplementary witness statement of Mr Wilson, was accepted as his evidence-in-chief and he was cross-examined. The applicant called Dr Burn as a witness and he attended by telephone. His evidence-in-chief was given orally (with reference to screenshots of the drone footage)[23] and he was cross‑examined.[24]
[23] Exhibit 11.
[24] ts 33 – 45, 12 December 2023.
Issues for determination
The parties agree two issues arise for determination in this proceeding:
(a)Is the proposed development consistent, or potentially consistent, with the objectives of the Private Community Purposes zone?
(b)Does the proposed development comply with LP07 and, if not, is there a cogent reason to depart from the policy?
The applicant identifies a third issue for determination, as to the conduct of the respondent in not providing information to the applicant on other third-party advertising in the City (including the commercial arrangements the City may have). Prior to the hearing, this was addressed by letter dated 17 October 2023 from the respondent's counsel, Mr Slarke, to Mr Janssen.[25] Essentially the same issue was raised by Mr Janssen and addressed by Senior Member Willey on 1 September 2023 at a directions hearing at the Tribunal.[26]
[25] Letter is at applicant's Bundle of Documents, page 109, Exhibit 8.
[26] ts 79, 12 December 2023.
As to this issue, I agree with the closing submission of Mr Slarke,[27] that if the City makes any revenue from leasing advertising (and he does not know if it does) it is not relevant to the Tribunal's assessment of the merits of this application.[28] Therefore, the third issue (identified by the applicant) is not relevant, in my view, to the Tribunal's determination of this proceeding because it simply does not go to the merits of the application which I am required to consider and determine.
[27] ts 78 – 79, 12 December 2023.
[28] Such a consideration is not one listed among potentially relevant considerations in cl 67(2) of the Deemed Provisions.
I will now consider and determine the two issues in this proceeding in turn.
Is the proposed development consistent, or potentially consistent, with the objectives of the Private Community Purposes zone?
The objectives of the Private Community Purposes zone are set out at cl 3.1.2 of LPS 42 as follows:[29]
•To provide sites for privately owned and operated recreation, institutions and places of worship.
•To integrate private recreation areas with public recreation areas wherever possible.
•To separate potentially noisy engine sports from incompatible uses.
•To provide for a range of privately owned community facilities, and uses that are incidental and ancillary to the provision of those facilities, which are compatible with surrounding development.
•To ensure that the standard of development is in keeping with surrounding development and protects the amenity of the area.
[29] Respondent's s 24 Bundle of Documents, page 138, Exhibit 3.
It is uncontroversial that third-party advertising is not a land use defined in LPS 42 or referred to in the Zoning Table (Table 3) of LPS 42.
In these circumstances, cl 3.3.4 of LPS 42 provides:[30]
The local government may, in respect of a use that is not specifically referred to in the zoning table and that cannot reasonably be determined as falling within a use class referred to in the zoning table –
a)determine that the use is consistent with the objectives of a particular zone and is therefore a use that may be permitted in the zone subject to conditions imposed by the local government; or
b)determine that the use may be consistent with the objectives of a particular zone and give notice under clause 64 of the deemed provisions before considering an application for development approval for the use of the land; or
c)determine that the use is not consistent with the objectives of a particular zone and is therefore not permitted in the zone.
Consideration of the proposed development and the zone objectives of the Private Community Purposes zone
[30] Respondent's s 24 Bundle of Documents, page 143, Exhibit 3.
The uncontested evidence of Mr Wilson is that after considering each of the objectives of cl 3.1.2 relating to the Private Community Purposes zone, he concludes the second and third objectives are not applicable and that the first objective is already met because the subject site is used by a privately owned and operated club.[31] Mr Wilson concludes a merits based assessment is required to determine if the proposed development is consistent with the fourth and fifth objectives. Mr Wilson's evidence is, 'I have taken the approach initially that the use may be consistent with the objectives of the zone and is therefore potentially permissible under [cl] 3.3.4'.[32]
[31] Witness Statement of Callum Wilson, paras 40 and 42, Exhibit 4.
[32] Witness Statement of Callum Wilson, para 43, Exhibit 4.
The fourth zone objective requires consideration as to whether the proposed use is 'incidental and ancillary to' the Club facilities. Here, the evidence of Mr Wilson is, in my view, inconsistent with his assessment that the proposed development (and its use for third party advertising) may be consistent with the objectives of the zone. As to this zone objective, Mr Wilson opines:[33]
With respect to the fourth objective, the proposed third-party advertising signs are not an incidental or ancillary land use to Club Premises. Furthermore, the scale of the third-party advertising in this case is significant and I do not think you could describe it as an ancillary or incidental structure on the subject site.
[33] Witness Statement of Callum Wilson, para 41, Exhibit 4.
The applicant contends it was envisaged in the application the proposed development would also be used by the Club to display advertising content related to any upcoming events and to promote the Club itself and therefore it has an ancillary purpose to the provision of the Club facilities.[34]
[34] Applicant's SIFC, para 40 b., Exhibit 7.
The use of the signage by the Club to promote itself and its events was not detailed in the original application which describes the nature of the works and land use as, '[t]hird party digital advertising signage'[35] and 'the proposed development of a third-party large format digital advertising sign that comprises two (2) individual LED displays facing east and west …'.[36] However, by way of a subsequent clarifying letter, the applicant's planning consultant advised the City:[37]
…
It is envisaged that the signage will be used by the club to display advertising content related to any upcoming events and the club itself[.]
[35] MRS Application for Planning Approval and City of Canning Application for Development Approval, Respondent's s 24 Bundle of Documents, page 1 and page 5, Exhibit 3.
[36] Respondent's s 24 Bundle of Documents, page 12, Exhibit 3.
[37] Respondent's s 24 Bundle of Documents, page 30, Exhibit 3 – Element letter, dated 20 March 2023.
However, no evidence is before me addressing the extent of the use of the proposed development directly by the Club. While I accept there may be some use by the Club, in my view, it is clear from the supporting planning report and subsequent letter, the primary purpose of the proposed development is to display third party advertising and that this will operate as a use independently of the Club.
As the Tribunal has previously observed zone objectives have the effect 'as if enacted by the [PD] Act'.[38] Zone objectives are to be read and applied in a broad fashion, consistent with its town planning purpose.[39] The Tribunal also observed in Warr, 'whether a use is consistent or otherwise with the zone objectives is really an evaluative judgment and is not intended to be the product of mathematical enquiry or fine‑grained economic analysis'.[40]
[38] In Warr and Town of Cambridge [2020] WASAT 126 (Warr) at [29].
[39] Warr at [68]
[40] Ibid.
On the uncontested evidence before me of Mr Wilson,[41] I do not accept the applicant's submission that the proposed development is incidental or ancillary to the existing use of the subject site by the Club. Further, considering the proper approach to determining uses identified by her Honour, Archer J in Reid v City of Gosnells [2023] WASC 48 (Reid) at [223] – [237],[42] I am satisfied, and I find, the proposed development will be an independent land use on the subject site, one which is not incidental or ancillary to the Club facilities or their use.
[41] See [37].
[42] In Reid (at [223]), Archer J adopts the approach outlined by DP Parry in G & G Corp Asset Management Pty Ltd and Presiding Member, Metropolitan East Joint Development Assessment Panel [2018] WASAT 9 at [12] – [15].
I do not accept the evidence of Mr Wilson that the proposed development 'may be consistent with consistent with the objectives of the zone and is therefore potentially permissible' because, as mentioned,[43] this evidence is directly contradicted by his own assessment of the proposed development against this fourth zone objective.
[43] At [37].
As a result, I am satisfied, and I find, the proposed development (relating to its primary use for third party advertising) is not consistent with a relevant objective of the Private Community Purpose zone and pursuant to cl 3.3.4 (c) of LPS 42 being:
…
•To provide for a range of privately owned community facilities, and uses that are incidental and ancillary to the provision of those facilities, which are compatible with surrounding development[.]
The fifth zone objective requires consideration of the proposed development to determine if it 'is in keeping with the surrounding development and protects the amenity of the area'. I will consider this aspect next as part of Issue 2 and return to provide findings on this zone objective at [84] and determine Issue 1 at [85].
Does the proposed development comply with LP07 and, if not, is there a cogent reason to depart from the policy?
LP07[44] contains four purposes or objectives:[45]
(1)To ensure that the display of advertising signs on properties does not adversely impact the amenity of the surrounding areas, while providing appropriate exposure of activities or services.
(2)To avoid a proliferation of advertising signs on individual sites and buildings.
(3)To encourage the rationalisation of advertising signs on individual premises.
(4)To ensure that advertising signs only relate to services and products on the site.
[44] I observe cl 1(b) of LP07 provides an exemption from the requirement to obtain development approval in certain circumstances. However, it is uncontroversial development approval is required to be obtained for the proposed development.
[45] Applicant's Bundle of Documents, page 110, Exhibit 8.
Relevant in this case, because third party advertising is integral to the proposed development, is Part 3 (g) of LP07 which states:
With the exception of advertising signs on local government reserves (referenced in Part 4 below), advertisements which include the following will not be approved on private land:
i.the name, logo, or symbol of a company or other organisation that does not own or substantially occupy the site or development on which the advertisement is proposed to be located; or
ii.a product or service not provided on the site on which the advertisement is proposed to be located; or
iii.a product or service that does not form part of the signage displaying the name, logo or symbol of a company or other organisation that owns or substantially occupy the site or building on which the advertisement is proposed to be located; and
iv.signs for an activity or event not occurring on the site on which the advertisement is located.
The respondent submits that, pursuant to Table 1 of Part 5 of LP07, the proposed development is both a hoarding (billboard) sign and a digital format sign[46] and says the proposed development does not comply with the following LP07 provisions:[47]
[46] Respondent's SIFC, para 23, Exhibit 2.
[47] Respondent's SIFC, para 35, Exhibit 2.
(a)[Part] 3(g), which expresses the Respondent's opposition to the third party advertising generally;
(b)The Part 5 requirements for a hoarding (billboard) sign in that both signs:
(i)are larger than 20m2 in area being each 42.411m2; and
(ii)are 15.5m in height above ground level, whereas the requirement is 5m.
(c)The Part 5 requirements for a digital format sign in that both signs have an area of 42.411m2 which exceeds the requirement of 20m2.
The respondent also identifies a requirement under LP07 that digital format signage can be considered except where the sign 'directly faces Residential zoned land'.[48]
[48] ts 23, 12 December 2023.
The respondent submits that '[t]he extent of non-compliance with LP07 is significant' and '[t]hat, therefore, any cogent reason to depart from the policy provisions must be equally significant'.[49]
[49] Respondent's SIFC, para 36, Exhibit 2.
The applicant accepts the proposed development is a digital format sign, but not a hoarding (billboard) sign.[50] As to the non-compliance with the policy requirements, the applicant submits a cogent reason exists to depart from LP07 and must be applied.[51] The applicant's submissions as to reasons to depart from LP07 go to the relatively isolated location of the subject site, and are as follows:[52]
a.Holding the [subject site] to the same standard under the City of Canning Local Planning Policy LP07 as it is applied to the generic aspects of the City of Canning is disproportionate. Due to the unique geographical positioning of the [subject site], including its bordering on entry and exit lanes of Roe Highway, as well as the positioning of Roe Highway separating the Land from the remainder of the City of Canning, under no circumstances can it be said that the [subject site] and the application for the proposed development would have a negative impact on the rest of the City of Canning.
b.The amenity of the area adjacent to the [subject site], which the signage would affect, is a highway, specifically Roe Highway, and Welshpool Road East. The Respondent's comments as to locality and visual amenity regarding the signage is misleading as the signage would not be to the detriment or reduction of amenity of an area such as a residential or dense commercial area.
c.The [subject site] is separated from the rest of the City of Canning by Welshpool Road East, two exit and entries of Roe Highway, the Roe Highway itself (one of the most prominent and used highways within the geographical area of Perth). The [subject site] is unique. It is in the far north-east of the City of Canning. It is the only part in the far north-east disconnected visually by amenity and environment by the Roe Highway and Welshpool Road. No visual effects from the signage can reach the residential areas or industrial areas of the City of Canning.
d.To argue that the envelopment in this enclave behind Roe Highway and beyond Welshpool Road as part of a high-density traffic area would set a precedent within the locality of the City of Canning and have any effect-like encouragement to other parts of the City or to the detriment of the City's character and amenity is misleading. If anything, this piece of land is so separated and so disconnected to every building structure of the City of Canning that no effect could be seen coming from this signage to any other land or building beyond Roe Highway and Welshpool Road.
e.Visitation of the [subject site] and a location analysis through maps shows without doubt that there is no comparison possible between this unique position of the land to any other part of the City of Canning.
f.Without comparability and without equal factual conditions to other pieces of land, it is impossible that conclusions of a precedent could be drawn for large, third-party signage. If anything, it can be said that due to its isolation, the development application of signage is unable to be perceived as influential on the City's character and amenity.
[50] Applicant's SIFC, para 25, Exhibit 7.
[51] Applicant's SIFC, para 41, Exhibit 7.
[52] Applicant's SIFC, para 46, Exhibit 7.
I observe the applicant's submissions consistently refer to properties in the City of Canning. However, as was observed at the view and identified in the evidence of Mr Wilson, the relevant locality in this case, I accept, extends to a residential area to the east of the subject site in the City of Kalamunda.[53]
[53] Mr Wilson (under cross-examination) confirmed no consultation occurred between the City of Canning and the City of Kalamunda (and presumably any of its residents) as part of the respondent's decision to refuse the proposed development on 5 May 2023 – ts 56, 12 December 2023. Nothing, in my view, turns on this.
I will now turn to consider firstly, categorisation of the type of sign under LP07, secondly, variations under LP07 arising from the proposed development, thirdly, the amenity impacts of the proposed development and finally, whether a cogent reason exists to depart from LP07 in this case.
Categorisation of sign type under LP07
As to the type of sign under consideration, the uncontested evidence of Mr Wilson is that he considers the proposed development could potentially be classified under three of the sign types defined in LP07, being a hoarding (billboard) sign, a pylon sign and a digital format sign.[54] He says it is not easy to categorise the proposed development because the signs are elevated on a large pole/column, which suggests a pylon sign. However, the signs themselves are both large, with the horizontal dimension being much greater than the vertical, suggesting a hoarding sign.[55]
[54] Witness Statement of Callum Wilson, para 49, Exhibit 4.
[55] Witness Statement of Callum Wilson, para 53, Exhibit 4.
Mr Wilson then asserts 'no matter what sign type applies under [LP07], it is clear that significant variations are proposed to what is considered an acceptable standard'.[56] Mr Slarke also submits it does not matter how the proposed development is classified, 'because no matter what you classify the sign under the policy, it doesn't comply'.[57]
[56] Witness Statement of Callum Wilson, para 56, Exhibit 4.
[57] ts 23, 12 December 2023. Consistent with the evidence of Mr Wilson at para 56, Witness Statement of Callum Wilson, Exhibit 4.
Considering the evidence before me, I am satisfied, and I find, the proposed development does not meet the 'Acceptable Standards' set out in Table 1 (in terms of maximum dimensions or area) in Part 5 'Specific Requirements' of LP07 for any of the sign types identified by Mr Wilson, or of the Part 3 'Provisions' at (g) relating to third‑party advertising.[58]
[58] Witness Statement of Callum Wilson, para 48 and para 56, Exhibit 4. Part 3 (g) is set out earlier at [47].
Despite the applicant accepting the proposed development is a 'digital sign' under LP07,[59] the applicant contends that Part 1 (f) of LP07 should apply.[60] This provision states:
Where a sign type is proposed that is not prescribed in the policy it will be considered on its merits and assessed against the criteria outlined in Part 6 of this policy.
[59] Applicant's SIFC, para 25 b., Exhibit 7.
[60] Applicant's SIFC, para 42, Exhibit 7.
However, as the applicant accepts, the proposed development is a sign type prescribed in LP07 (albeit one which does not meet the specific requirements of Part 5) and therefore the provision at Part 1 (f), in my view, is not applicable. Nothing ultimately turns on this, because as I will come to next, it is necessary to consider the proposed development under Part 6 of LP07 dealing with variations.
Consideration of variations under LP07
Part 6 of LP07 deals with variations and states:[61]
[61] Applicant's Bundle of Documents, page 129, Exhibit 8.
Signs that do not comply with this policy will be considered unacceptable and will be refused; unless the applicant / owner provide supporting justification that the proposed sign(s) is appropriate for the location. In order for the local government to determine the merits of the proposal in such instances a development application will be required, which identifies any exceptional circumstances involved and includes justification against the following performance criteria.
The signage proposal:
a)is clear, simple and concise;
b)is compatible with existing signage on the site and within the surrounding area and will not obscure existing signage on adjacent tenancies;
c)will not result in the creation of an unacceptable level of visual clutter within the area, to the detriment of visual amenity;
d)is appropriate to the locality and surrounding land uses, in terms of size, location and design;
e)will not result in an adverse impact upon the character or historical significance of the surrounding area;
f)is designed to complement the architectural style and character of the building, site or area;
g)will not compromise traffic or pedestrian safety;
h)will not result in unacceptable light spill on to abutting sites;
i)will not pose a threat to public safety or health; and
j)does not contain obscene or offensive information or illustration.
The respondent contends no exceptional circumstances apply to the proposed development and further, it does not satisfy performance criteria c) or d) of Part 6 (outlined above).[62]
[62] Respondent's SIFC, para 37, Exhibit 2.
Under cross-examination, Mr Wilson concedes the subject site is 'unique' and when comparing it with his knowledge of other 'billboards' in the City, and he accepts the proposed development 'is isolated in this context'.[63]
[63] ts 59, 12 December 2023.
I accept this evidence, and, in my view, this supports the applicant's position that an exceptional circumstance exists under Part 6 of LP07 because of the relatively isolated location of the subject site caused, at least in part, by the construction of the adjoining major roads since the Club was built in 1983.[64] This site specific factor is, in my view, sufficient to warrant consideration of the proposed development under the performance criteria of Part 6 of LP07.
[64] The history of the subject site is a relevant consideration under cl 67(2)(w) of the Deemed Provisions.
I will now consider Mr Wilson's assessment of the proposed development against the performance criteria in Part 6 of LP07. Mr Wilson's opinion is:[65]
[65] Witness Statement of Callum Wilson, para 57, Exhibit 4. Each paragraph corresponds with the relevant performance criteria in Part 6 of LP07 set out earlier at [59].
[a]The signs could reasonably be considered "clear, simple and concise[;]
[b]In my opinion, the sign is not compatible with existing signage on-site. The existing signage within the site (approved or otherwise) is to a scale, height and size consistent with the bulk, scale and height of the building. The proposed sign dominates the immediate locality and, in my opinion, exceeds the expectations for the built form on the property (which I will explain in the Amenity section of this statement)[;]
[c]Given the sign is standalone and there are not too many other signs or properties within the immediate locality, it is not considered to create "visual clutter" within the area[;]
[d]The sign is not appropriate within its locality. In my opinion there is nothing in the immediate or wider locality that warrants a sign is in excess of maximum size and height requirements. The sign will be a stand-out in its local context and is not consistent with the existing built form or expectations for the Private Community Purposes site[;]
[e]It is considered that the sign will change the character of the area, by way of its scale, height and size. The question of whether this is an adverse impact will be explained later in this statement[;][66]
[f]No effort or alternative designs have been provided to demonstrate the sign is complementary to the existing architectural style or character of the site and its existing buildings. Whether or not this is required given the state and age of the building, is a different question. However, the sign is clearly proposed to maximise its visibility to adjoining roads and to be a prominent feature in the immediate locality[;]
[g]The development is not considered to result in a traffic or safety impact[;]
[h]The light spill of the development can reasonably be mitigated by way of conditions, consistent to the advice received from Main Roads WA[;]
[i]The safety implications of this proposal have been addressed by Main Roads WA and will be required to be conditioned accordingly[;] and
[j]The illustration and information provided can be suitably conditioned as part of a development approval. No information has been provided on the material projected at this stage."
[66] This is addressed in Mr Wilson's evidence at paras 60 – 69, Witness Statement of Callum Wilson, Exhibit 4, and considered later at [72] – [75] and [77].
As to the aspects that Mr Wilson identifies as concerns, the applicant makes the following submissions:[67]
[67] Applicant's SIFC, para 42c, Exhibit 7.
…
i.Performance Criteria (b): The subject site and adjoining surrounding lots do not have any existing signage which fronts Welshpool Road or Roe Highway and therefore there is not considered to be an existing proliferation of signage[.]
…
iv.Performance Criteria (d): The proposed signs are of rectangular shape mounted on a column, which are typical of many existing digital advertising signs currently in operation and within the limits of the accepted industry standards[.]
v.Performance Criteria (e): The subject site is not in proximity to any areas of character or historical significance[.]
vi.Performance Criteria (f): Due to the ground level difference between the subject site and the road, the existing building will not be visible from Welshpool Road East or any zoned land under LPS 42[.]
For the criterion which Mr Wilson does not hold concerns, I accept his uncontested expert evidence, and I am satisfied, and I find, the proposed development meets performance criteria (a), (c), (g), (h), (i) and (j). Mr Wilson's concerns in criteria (b), (d), (e) and (f) focus on the amenity impact of the proposed development. I will turn to this aspect next.
Consideration of amenity impacts of the proposed development
Amenity is defined in the Deemed Provisions[68] and:
means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
[68] At cl 1.
The case authorities on evaluating amenity are well-known and settled.[69] In Tempora[70] the former Town Planning Appeal Tribunal set out a three-step test in terms of evaluating amenity as follows:
(1)establish the existing amenity in an objective sense;
(2)evaluate the manner in which the proposed development will affect the existing amenity; and
(3)assess the degree of impact on the locality.
[69] John Cranston and Shire of Serpentine-Jarrahdale [2019] WASAT 19 at [76].
[70] Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 (Tempora) at 304.
The amenity consideration in this case is, I accept, visual amenity. The uncontested evidence of Mr Wilson, is that the character of the locality,[71] with the exception of the residential area to the east is, I find, dominated by major roads and generally low height buildings (including the Club premises) which are mostly of an industrial and warehouse nature and I accept this portion of the locality 'for the most part [does] not have high visual amenity'.[72] However, Mr Wilson's evidence, which I accept, is that the character of the area to the east,[73] which predominantly contains single storey, single houses, is residential.[74]
[71] Which includes the immediate and wider locality identified earlier at [9] – [13].
[72] Witness Statement of Callum Wilson, paras 21 – 26, Exhibit 5.
[73] Located in the City of Kalamunda.
[74] Witness Statement of Callum Wilson, para 26 – 27, Exhibit 5.
The evidence of Dr Burn does not, in my view, squarely address the amenity impact of the proposed development. It provides a series of photographs taken from a drone piloted by Dr Burn which purport to demonstrate what may be able to be seen from the height (being 14.5 metres)[75] and orientation of the east facing sign of the proposed development.[76] However, Dr Burn (who, I accept, is a qualified drone pilot, and a dentist) has no expertise in amenity assessment. The photographs are not in any way sufficient, in my view, to demonstrate the amenity impact of the proposed development on the neighbouring residential area. This is because, as the respondent submits, and I accept, there is a lack of precision (and detail) about the photographic views captured from the drone.[77]
[75] ts 34, 12 December 2023.
[76] Exhibit 11, Screenshots of drone video produced by Dr Burn.
[77] ts 42, 76 – 77, 12 December 2023.
There is also an absence of expert evidence as to the amenity impact of the proposed development provided by the applicant. This much is apparently conceded by Mr Janssen in the applicant's closing submissions:[78]
.… my closing submission starts with criticising my own evidence I brought forward. Normally, in these kind of cases I know that nowadays we need drone footage and we need pictures to convince us how something will looks in the future. From my perspective, it would be much easier we use math, the sentence of – or theorem of Pythagoras would help us because it is very simple when we have something like a billboard and put this in a straight line on the billboard and you can quite obviously see where the visibility is and I mean it from all two angles we can see.
And, therefore, we do not have to follow the witness, Mr Wilson, when he believes that something that can be seen because we can simply do the math what can be seen and what cannot be seen[.]
[78] ts 68, 12 December 2023.
This submission, in my view, highlights the very significant deficiency with the way the applicant chose to run its case at the hearing. This is in circumstances where the applicant seeks the exercise of planning discretion which involves, at its heart, a consideration of the proper application of a planning scheme and a planning policy and consideration of the visual amenity impact of the proposed development. This is even more remarkable in circumstances where the proposed development sits well outside the parameters of the local planning framework.
Be this as it may, I now turn to consider the evidence of Mr Wilson as to amenity impact. His evidence is that in relation to future amenity, the LP Strategy (and the local planning framework more generally) does not identify any future changes for the subject site and he also considers the amenity of the locality will remain largely unchanged in the foreseeable future.[79] No evidence was put before me as to any likely change to the amenity of the residential area (to the east of the subject site) which, as mentioned, is in the City of Kalamunda.
[79] Witness Statement of Callum Wilson, para 60, Exhibit 4. The definition of amenity in the Deemed Provisions incorporates consideration of likely future amenity, see [66].
Mr Wilson's opines 'the [proposed] development cannot be considered compatible within its current setting. It will be a prominent and dominating structure when considering the existing built form of the site, and there are no other similar structures in the immediate or wider locality'.[80] Further, Mr Wilson asserts:[81]
The development is intended to be clearly visible to passing traffic. The height, size and orientation of the structure, and the illuminated advertisements it will carry, will by design draw the attention of motorists, cyclists and pedestrians as they pass the subject site. Although the current visual amenity of the site and immediate locality is low, in my opinion the development will detract from it further as it adds a substantial commercial element in the foreground view.
[80] Witness Statement of Callum Wilson, para 61, Exhibit 4.
[81] Witness Statement of Callum Wilson, para 62, Exhibit 4.
Mr Wilson accepts the adjoining land (which is reserved land, with major roads and a railway line) will not be adversely impacted, but there will be an impact on the wider locality and this, he says, will be on the closer residential properties at the end of Puddy Lane and Myall Close in Wattle Grove.[82] Mr Wilson argues:[83]
The properties affected are within a direct and almost uninterrupted view of the proposal, within 140m of the proposed development. While the distance assists in reducing the bulk and scale, the presence of a large digital format sign visible from private outdoor areas would be considered impactful. When adding that the proposal will operate for 24 hours and would include lighting, it is likely there will be an adverse impact to these residences.
[82] Witness Statement of Callum Wilson, paras 63 – 64, Exhibit 4.
[83] Witness Statement of Callum Wilson, para 65, Exhibit 4.
In support of this, Mr Wilson provides a diagram[84] which seeks to demonstrate a 'cone of vision' from the outdoor living areas of three dwellings in Myall Close (being Nos 12, 14 and 16).[85] In oral evidence, Mr Wilson says the proposed development will be visible from within the dwellings and in their main outdoor areas (located at the rear).[86]
[84] Witness Statement of Callum Wilson, Attachment D, Exhibit 4.
[85] ts 51, 12 December 2023 and Exhibit 12 (which is an aerial photograph identifying street numbers of the dwellings at the end of the Myall Close cul-de-sac).
[86] ts 64 12 December 2023.
I accord this evidence limited weight for two reasons. Firstly, Mr Wilson's 'cone of vision' diagram demonstrates an assessment in plan view only and he does not identify on the plan what may be able to be viewed from any glazed openings of the dwellings. The evidence does not include a cross-section demonstrating what, in fact, could be visible from the residential properties and he does not consider the screening impact of the rear fences of these dwellings or any other potential obstructions, such as vegetation. Secondly, and although Mr Wilson asserts his experience undertaking assessments of amenity impacts as a town planner,[87] he confirms on this occasion he did not visit any of the identified dwellings (externally or internally) to complete his visual amenity impact assessment.[88] These are significant deficiencies, in my view.
[87] Witness Statement of Callum Wilson, para 64, Exhibit 4.
[88] ts 67, 12 December 2023.
However, Mr Wilson's evidence does include one photomontage image of the proposed development.[89] The photomontage is an image from a viewpoint in the Myall Close cul-de-sac looking westwards towards the proposed development.[90] Mr Wilson says the photomontage 'image is consistent with my opinion that the face of the east facing sign is likely to be visible from the southern end of the cul‑de-sac at Myall Close and from the dwellings in that vicinity'.[91] I accept Mr Wilson’s evidence that the east facing sign of the proposed development will be visible from the viewpoint of the image at the southern end of Myall Close.
[89] Supplementary Witness Statement of Callum Wilson, Attachment 1, Exhibit 5. This image was prepared for the respondent by Urbis based on the development plans.
[90] Supplementary Witness Statement of Callum Wilson, para 2, Exhibit 5.
[91] Supplementary Witness Statement of Callum Wilson, para 3, Exhibit 5.
The evidence before me also includes a Road Safety Assessment Report (RSAR) prepared by Stantec for the applicant. This report, when assessing the visibility of the proposed development (heading eastbound on Welshpool Road East) says, '[t]here is approximately 200m of distance available during which drivers are able to read the messages of the LFDS [large format digital sign/proposed development] while driving along Welshpool Road East that has low complexity'.[92]
[92] Respondent's s 24 Bundle of Documents, page 48, Exhibit 3.
When considering the amenity impact in closing submissions, Mr Slarke draws on this reference in the RSAR and says:
… remembering the dwellings are about 140 metres from the sign, one would expect that the message on the sign will be well and truly readable and, in particular Mr Wilson says that there will be several dwellings around the southern end of the Myall Close cul de sac that will be able to see the sign and we say the message on it, given that they are within or certainly well within 200 metres. Those properties, Mr Wilson clarified, are likely to be [Nos] 12, 14 and 16 Myall Close, potentially [No] 8 Myall Close as well as people who happen to be on Puddy Lane or within the cul de sac [e]nd of Myall Close in the public area[.][93]
[93] ts 75, 12 December 2023.
While I accept the proposed development will be visible (and likely be able to be read) in the residential area at the end of Myall Close cul-de-sac and in Puddy Lane, given the limitations of Mr Wilson's evidence as to the visual amenity impact on the individual dwellings identified earlier, I am unable to make a positive finding that the proposed development will impact on the interiors of the dwellings at Nos 12, 14 and 16 Myall Close or on their associated outdoor areas.
Notwithstanding this, I do not accept the applicant's submission the proposed development will not have a detrimental impact on the amenity of the locality, in particular the residential area identified.[94] This is because considering the proximity of the proposed development to the residential area (140 metres), its height (at 14.5 metres) and the orientation of the eastwards facing sign and the minimum 35 second dwell time of the digital sign which will operate 24 hours a day, it will be visible to an extent in this residential area.
[94] ts 69, 12 December 2023.
Therefore, I am satisfied, and I find, the proposed development (at least as far as the east facing sign is concerned) will adversely impact the amenity of what is a residential area because the proposed development is not something, in my view, that would ordinarily be expected to be present in, or plainly visible from, a residential area and it is therefore not consistent with residential amenity. This is also consistent with the 'Specific Requirements' of Part 5 of LP07 which does not support digital signage which 'directly faces Residential zoned land'.[95]
[95] Applicant's Bundle of Documents, page 128, Exhibit 8.
Further, considering the relevant purpose and objectives of LP07, I am satisfied, and I find, the proposed development does not, in my view, 'ensure the display of advertising signs on properties does not adversely impact the amenity of the surrounding areas' because it will adversely impact the visual amenity of the existing residential area to the east of the subject site.
Returning now to the fifth objective of the Private Community Purpose zone at cl 3.1.2, being 'to ensure that the standard of development is in keeping with surrounding development and protects the amenity of the area' (identified earlier at Issue 1),[96] I am satisfied, and I find, the proposed development (at least as far as the east facing sign is concerned) does not satisfy this objective for the reasons given above at [81] – [82].
[96] At [45].
Returning to Issue 1, whether the proposed development is consistent, or potentially consistent, with the objectives of the Private Community Purposes zone, I am satisfied and I find that it is not, for the reasons given earlier at [44] and at [84]. Because of this, I am satisfied and I find, consistent with cl 3.3.4(c) of LPS 42, the proposed development is not permitted.
Is there a cogent reason to depart from LP07?
Finally, and notwithstanding my findings to Issue 1, that the proposed development is a use that is not consistent with the objectives of the Private Community Purposes zone and is therefore not permitted, for completeness and out of an abundance of caution, should my findings at Issue 1 be wrong, I will also consider whether a cogent reason exists to depart from LP07 in this case.
The correct approach to the application of planning policy is settled. Decision-makers are to have due regard to relevant policy, but the inflexible application of policy without considering the site specific factors, or a policy which purports to fetter all, or part of a discretion, is unlawful.[97]
[97] See Re Romato; Ex parte Mitchell James Holdings Pty Ltd, [2001] WASCA 286 at [27] – [28].
While I accept the provisions of a policy cannot replace the discretion available to a decision maker, in that the policy cannot be inflexibly applied, as Barker J observed in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], 'the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'.
In this case, the applicant contends because of the isolated nature of the subject site, the proposed development does not impact the amenity of the locality, and this provides a cogent reason to depart from the requirements of LP07.[98]
[98] Applicant's SIFC, paras 46 and 51, Exhibit 7.
However, while Mr Wilson, says the subject site is unique and accepts it is somewhat isolated, his evidence, which I accept, is that the proposed development is not without amenity impact. As I found at [81] – [82] this impact will be on the visual amenity of the residential area located approximately140 metres east of the subject site, because the proposed development will be visible from the end of Myall Close in this residential part of the locality.
Further, given the residential nature of this part of the locality, third party digital advertising of the scale sought, in my view, is inconsistent with its residential character. On this basis, the subject site is not, I find, sufficiently isolated, and its location therefore does not, in my view, provide a cogent reason to depart from the requirements of LP07 as the applicant contends.
Finally, the proposed development includes for revenue to be derived by the Club to partly fund the Club's ongoing operations and future improvements.[99] The respondent submits there is no evidence as to who goes to the Club or whether there are factors other than the isolation of the site which has caused a reduction in Club membership and no evidence is provided of the extent of financial benefit to the Club.[100] The respondent accepts the ongoing use of the subject site by the Club provides a benefit to the wider community, and this could be a relevant planning consideration,[101] but submits there is very little by way of evidence that can be relied upon as to the benefit to the community.[102] I agree, and considering the circumstances of this case, in my view, even if evidence were provided as to a wider community benefit of the proposed development or its support for the ongoing operation of the Club, it would unlikely overwhelm the other relevant planning considerations, in particular the visual amenity considerations. The financial revenue to the Club, therefore, does not, in my view, provide a cogent reason to depart from the requirements of LP07 and there is no other cogent reason to depart from the policy in this case.
[99] Applicant's Bundle of Documents, pages 97 – 98, Exhibit 8.
[100] ts 78, 12 December 2023.
[101] Relevant to cl 67(2)(x) of the Deemed Provisions.
[102] ts 78, 12 December 2023.
Conclusion
The proposed development is for two large format digital signs (each 3.35 metres high by 12.66 metres wide – one facing westwards and the other eastwards), mounted on a single column 11.15 metres above the ground, and with an overall height of 14.5 metres, to be used to display third-party advertising operating 24 hours a day with a minimum dwell time of 35 seconds.[103]
[103] See Footnote 13.
Considering the evidence of Mr Wilson, I determined the proposed development (which involves third-party advertising), is a use not listed under LPS 42. Further, on the evidence before me, the proposed development is not consistent with two relevant objectives of the Private Community Purposes zone being:
•To provide for a range of privately owned community facilities, and uses that are incidental and ancillary to the provision of those facilities, which are compatible with surrounding development.
•To ensure that the standard of development is in keeping with surrounding development and protects the amenity of the area.
As the proposed development is not consistent with these objectives of the zone, I found at Issue 1 that under cl 3.3.4(c) of LPS 42 the use (Use not listed – Third party advertising) is not permitted in the Private Community Purposes zone in the circumstances of this case.
Considering Issue 2, I found the proposed development (and in particular the east facing sign) will have a negative impact on the adjoining residential area, located approximately 140 metres to the east of the subject site, and therefore does not meet the relevant objectives of LP07 because the signage would be visible from the southern end of Myall Close and in Puddy Lane. The evidence before me is insufficient to conclude the proposed development would be visible and cause an impact on the dwellings at Nos 12, 14 and 16 Myall Close or their associated private open space areas.
The applicant's main argument to counter the visual amenity concerns is that the signage will not be visible from within any of these dwellings or their associated private open space areas, but the applicant provides no expert evidence to support these assertions. The screenshots from the drone footage do not, in my view, demonstrate this assertion.
Notwithstanding my findings at Issue 1, I also considered whether a cogent reason exists to depart from LP07 in this case, and concluded there is not.
Accordingly, and having due regard to the relevant matters in cl 67(2) of the Deemed Provisions, and weighing up my findings on the two issues before me for determination, the correct and preferrable decision at the time of the decision upon the review, for the reasons I have outlined, is to dismiss the application for review and affirm the respondent's decision to refuse the proposed development.
As mentioned,[104] an order is also required to correct the section of the PD Act the Application for Review is made under.
[104] At [3].
For these reasons, the Tribunal makes the following orders.
Orders
The Tribunal orders:
1.This proceeding is taken to have been commenced under s 252(1) of the Planning and Development Act 2005 (WA) rather than s 250(1) of the Planning and Development Act 2005 (WA) as stated on the application.
2.The application for review is dismissed.
3.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
5 MARCH 2024
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