PRIOR and TOWN OF VICTORIA PARK - [2009] WASAT 172

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PRIOR and TOWN OF VICTORIA PARK [2009] WASAT 172

MEMBER: MR J JORDAN (MEMBER)

HEARD: 19 AUGUST 2009

DELIVERED : 7 SEPTEMBER 2009

FILE NO/S: DR 98 of 2009

BETWEEN: SUSAN PRIOR
Applicant
AND
TOWN OF VICTORIA PARK
Respondent

Catchwords:

Town planning - Development - Conditions of approval - Application for retrospective approval of signs - Amended proposal for one wall sign and awning signs - Approval granted subject to conditions - Condition requiring wall sign being reduced in size - Application of signs local law standards and signs policy - Replacing wall sign of same size - Location in commercial strip - Impact on streetscape - Impact on visual appearance of building - Maintaining local amenity

Legislation:

Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31(1), s 31(3)
Town of Victoria Park Town Planning Scheme No 1, cl 3(1)(a), cl 3(1)(b), cl 3(1)(c), cl 32, cl 36(5), cl 38, cl 39A, Sch 4

Result:

The application for review is allowed
The existing wall signs on the Albany Highway frontage and the Temple Street frontage are to be removed from the site
The existing wall sign on the northern wall (truncated corner) is granted retrospective planning approval

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr R Cruickshank

Solicitors:

Applicant: Self-represented
Respondent: Town of Victoria Park

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the conditions imposed by the Town of Victoria Park on a retrospective planning approval for signs on premises on the corner of Albany Highway and Temple Street, Victoria Park. The application before the Town of Victoria Park was for approval of awning signs and a wall sign of 3,377 millimetres by 1,700 millimetres on the wall on the corner truncation of the building. The Town of Victoria Park required that the wall sign be reduced in size to 2,010 millimetres by 1,030 millimetres.
The Town of Victoria Park was concerned that the wall sign applied for would have an adverse impact on the amenity of the locality because of the impact on the appearance of the building and on the streetscape.
The Tribunal noted that the wall sign in the proposal replaces a wall sign of the same dimensions that has been in place for many years. The view of the wall sign along Albany Highway would be among the existing signs on both sides of the road.
The Tribunal formed the view that the existing wall sign remaining on the truncated corner wall would not have any adverse impact on the appearance of the building or the local streetscapes, and would therefore be consistent with maintaining the local amenity.
Having formed this view, the Tribunal found that, in the circumstances of this case, the proposed relaxation of the standards for wall signs would still achieve an outcome consistent with the planning objectives for this commercial area.
The Tribunal allowed the application and amended the retrospective planning approval to allow the existing sign to remain on the truncated corner wall.

Introduction

These proceedings involve an application brought by Ms Susan Prior, (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of a decision by the Town of Victoria Park (respondent, Town or Council) made on 22 May 2009 (May 2009 decision) granting conditional approval for the development of signs on the building in which her business premises is located at 467 ‑ 475 Albany Highway, corner of Temple Street, Victoria Park (site).

The site

The building on the site is over 50 years old and is built up to the street frontages. It is single storey with a parapet above an awning over the footpath. The frontage to Albany Highway at the north-east is 14.3 metres and to Temple Street at the north-west, 34.6 metres. At the corner of the two streets the site is truncated, with the truncation having a frontage of 3.7 metres.
The applicant's business occupies the corner of the building. It includes the whole of the Albany Highway frontage and about half of the Temple Street frontage (the premises). The remainder of the Temple Street frontage is occupied by a barber and a sports equipment shop. The premises present a blank wall, interrupted only by a solid single doorway, to Albany Highway, a blank wall on the truncation, and to Temple Street a blank wall interrupted by another single solid door and a small highlight window.

Background

In February 2008, the respondent wrote to the applicant advising that unauthorised signs had been erected on the site without there being any records of planning approval. On 21 November 2008, the applicant lodged with the respondent an application for retrospective planning approval as provided for under cl 32 of the Town of Victoria Park Town Planning Scheme No 1 (TPS 1).
The signs comprised awning signs and three wall signs advertising the business 'Madison Avenue'. The wall signs were:
•one wall sign of 3,150 millimetres by 1,060 millimetres on the north-eastern wall (Albany Highway wall);
•one wall sign of 2,010 millimetres by 1,030 millimetres on the north-western wall (Temple Street wall); and
•one wall sign of 3,377 millimetres by 1,700 millimetres on the northern wall (the truncated corner wall).
On 24 February 2009, the respondent refused the application (the February 2009 decision). The applicant then filed with the Tribunal an application for review of the February 2009 decision.
At a directions hearing on 8 April 2008, the Tribunal invited the respondent to reconsider the February 2009 decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Consequent to that order, the applicant wrote to the respondent on 15 April 2009 informing the respondent that she sought to have the sign on the truncated corner wall remain, but agreed to the removal of the two side signs, being the signs on the Albany Highway wall and the Temple Street wall.
The respondent reconsidered the matter, as amended by the applicant, and issued its May 2009 decision, in which it resolved that the application for retrospective planning approval be approved, subject to conditions which included the following:
1.All existing wall signs are to be removed from the site.
2.The existing wall sign on the northern wall (truncated corner) be replaced with the existing wall sign on the north-western wall (Temple Street).
…
The effect of this decision was that the awning signs would remain and the only wall sign would be a 2,010 millimetre by 1,030 millimetre wall sign on the truncated corner wall replacing the existing 3,150 millimetre by 1,030 millimetre wall sign.
The applicant then continued with the review before the Tribunal, it becoming a review of the respondent's May 2009 decision, as provided for at s 31(3) of the SAT Act. That is, the applicant was seeking to be allowed to retain on the truncated corner wall the existing 3,150 millimetre by 1,030 millimetre wall sign.

Planning Framework

The site is zoned 'Commercial' under TPS 1. TPS 1 includes the scheme text (cl 3(1)(a)), precinct plans (cl 3(1)(b)) and planning policies (cl 3(1)(c)). The site is located within precinct plan P11 'Albany Highway' (Precinct 11). Sheet A of Precinct 11 includes under the heading 'Statement of Intent':
Larger scale, open-air and other commercial uses considered inappropriate to a retail-based node will be encouraged to relocate in the commercial sectors of the precinct where various and colourful commercial uses will be promoted.
…
Signs will be controlled to ensure compatibility with the desired character of the particular area of the precinct, and encouraged so as to continue the present vitality created by the diversity of sign types and characters.
Clause 36(5) of TPS 1 sets out matters to be considered generally in determining a development application. These include having regard to precinct plans and adopted policies, the orderly and proper planning of the locality and preservation of the amenity of the locality. Clause 39A of TPS 1 sets out matters to be considered in determining an application for signs, including:
(1)In considering an application for or involving an advertisement, the Council is to have regards to the matters listed in clause 36(5) and ‑
(a)the impact of the sign on the quality of the streetscape where it is to be displayed and more generally of the district;
(b)whether the size of the sign appropriately relates to the architectural style, design and size of a building on which the sign is to be displayed …
…
(e)how many signs are on the land where the sign will be displayed.
(2)Council may refuse to approve an application where:
...
(c)the sign may detract from the quality of the streetscape or area where it is to be displayed;
(d)the size of the sign does not appropriately relate to the architectural style, design and size of a building on which the sign is to be displayed;
…
At Sch 4 of TPS 1 under the heading 'Advertisements Requiring Planning Approval,' it lists as requiring planning approval:
Signs that require planning approval under Part 6 of the Town of Victoria Park Signs Local Law 2006 (as amended from time to time).
The respondent's Signs Local Law 2006 (the Local Law) states at Pt 6 'Signs Require Planning Approval':
33(1)Signs that do not meet the standards set out in Parts 4 and 5 require planning approval.
Local Law Pt 4 - 'Exempt Signs' states that:
19.Advertising signs that -
(a)meet the standards set out in this Part;
…
are exempt from the requirements to obtain planning approval, but will require a sign licence.
For a wall sign at cl 25 of Pt 4 it states:
…
(2)a wall sign is exempt where it is an aggregate area of 0.4 [square metres] to 1m of street frontage of the subject tenancy (up to a maximum aggregate area of 10 [square metres]).
The respondent has in its TPS 1 Policy Manual, Policy 4.9 - Street Frontage Design Guidelines - District Centres and Commercial Areas Along Albany Highway (the Policy). Clause 4.9.6.14 is concerned with signage. This relevantly includes:
(b)Policy
…
(ii)all signs should be in keeping with the character of the building and the surrounding locality.
(iii)signs should not obscure:
•architectural detailing, including windows; views of the building to which they are attached; or views of neighbouring buildings.
(iv)signs attached to a building should be restricted to a ground floor level, under the awnings and at the facia of an awning. A sign above this level might be approved …
Clause 38 of TPS 1 sets out matters to be considered when determining a non-complying application. These include being satisfied that the development would be consistent with the:
•orderly and proper planning of the locality;
•the conservation of the amenities of the locality; and
•the statement of intent set out in the relevant precinct plan.

Issues

The issues for consideration arising from the proposal and the planning controls are:
1)whether the proposed wall sign would have an adverse impact on the visual appearance of the building and on the streetscape;
2)whether the proposed wall sign would be consistent with the general amenity and orderly and proper planning of the locality; and
3)whether approval of the proposed wall sign would be cited as a precedent for future applications.

Discussion

Issue 1: whether the proposed wall sign would have an adverse impact on the visual appearance of the building and on the streetscape

On the morning of the hearing, the Tribunal conducted a view of the site and the local streetscape, including existing signs, in the company of the applicant and Mr Robert Cruickshank, the planner who appeared for, and was a witness for, the respondent.
The applicant said that the wall sign she wanted approved comprises painted artwork and vinyl graphics applied to boards already attached to the truncated corner wall. The artwork was put in place about two years ago, replacing a sign of the same size painted onto the boards in early 1996. The applicant produced a photograph of the previous sign which simply said 'Madison Avenue' (Exhibit 8). The earlier sign also had at one stage a silhouette of a reclining female extending from the top.

Respondent

Mr Cruickshank said removal of the wall signs from the Temple Street frontage and the Albany Highway frontage under the May 2009 decision will result in a better outcome, as there will be a lesser visual impact on the building than there would be from the three wall signs originally applied for. In his opinion, however, the truncated corner wall sign applied for was excessive for the purposes of identifying the premises and had an adverse visual impact on the building. There was no issue with the colour, materials or content, but he considered the smaller sign allowed by the Council's decision to be an alternative which would have a more acceptable visual impact on the building.
Mr Cruickshank described the local streetscape as mostly comprising buildings up to street frontages, with glazing, which allowed interaction with people inside the building and providing variety and interest. Signs were typically on awnings and in windows with few wall signs. Allowing a wall sign of the size proposed to remain would be inconsistent with that streetscape.

Applicant

The applicant considered that changing the sign size would not be of any additional architectural benefit to the building. She considered the sign to be visually in balance with the articulated wall above the awning and be compatible with the design of the building. The applicant also said that to change the sign would be an unnecessary cost and there would be a negative impact on the business because the reduced text size would not be as visible on the truncated corner wall.
On Mr Cruickshank's comments about windows that allowed interaction between the street and adjacent uses, Ms Prior said the sign boards were attached to panels placed over former windows so no window would be revealed by removal of the sign boards. In any event, the use long carried out in the premises behind the boarded-over windows included bathrooms and activities that were not appropriate for public display. At the hearing, Mr Cruickshank acknowledged this situation.
Ms Prior described the streetscapes as 'not attractive' because of the barbed wire on the roof and grills on the windows of the nearby Masonic hall, the car yards over the road, and signs on buildings nearby, including a larger area of wall signs on the pharmacy visible to the south on Albany Highway. She said there were a number of buildings on Albany Highway with a greater number of signs and signage of a combined area greater than that now proposed for the site. In her opinion, the modest amount of signage, which was not offensive or unusual, would be consistent with the streetscape.

Comment

In respect of the impact on the building, the Tribunal accepts that the existing sign, for which the applicant is seeking approval, is in the same position and of the same size as that which preceded it and had been in place at least since the early 1990s, shown in the submitted photograph (Exhibit 8). In one respect, the current truncated wall sign is slightly less in impact than a version of the previous sign that had extending above the sign the outline of a female body. At the viewing, the outline of letters of the previous sign could be discerned beneath the paint. There was also evidence of previous lettering on the Temple Street wall sign and a photograph of the earlier use of the Albany Highway wall sign to advertise a photographic business.
The proposal will have less impact on the visual appearance of the building, in that there will remain one wall sign on the building where there was once three, and the remaining sign will be no greater in area than that which has been in place for many years.
In respect of the streetscapes, the viewing of the site revealed that the Albany Highway streetscape comprises a variety of land uses, including car yards, and a variety of building styles and ages. Sign types also vary greatly in this locality. Some signs could not have been approved as consistent with the current Local Law and Policy. The site is, however, in a commercial zone in Precinct 11 where the intent is to promote 'various and colourful' uses and to control signs to ensure 'compatibility with the desired character' and to encourage continuation of 'the present vitality created by the diversity of sign types and characters'. These statements of intent for Precinct 11 are to be balanced with avoiding a sense of visual chaos, and loss of local character and amenity (Policy cl 4.9.6.14(a)), adverse impact on streetscape and locality (Local Law 11(2)(b); Policy cl 4.9.6.14(b)(ii)) and constraints on sign size (Local Law 25(2)).
Temple Street forms a junction with Albany Highway at an angle. This means that anyone travelling north on Albany Highway would not see the sign on the truncated corner wall until close to the corner. When travelling south on Albany Highway, an observer would now only see one wall sign on the site, on the truncated corner wall. This is in place of the sign that had been on that wall for many years.
The view of the proposed wall sign along Albany Highway would be among the existing signs on both sides of the road. The Temple Street wall would no longer contribute a sign to this aspect of the streetscape. In that regard, the Tribunal is of the view that the signage in the current proposal will contribute to the colour of this commercial strip but not add to a sense of 'visual chaos' or have an adverse impact on the local streetscape.

Issue 2: Whether the proposed wall sign would be consistent with the general amenity and orderly and proper planning of the locality; and

Issue 3: Whether approval of the proposal wall sign would be cited as a precedent for future applications.

Respondent

Mr Cruickshank said that he could find no record of any approval for the preceding 'Madison Avenue' sign or earlier signs on the truncated corner wall, and nor was it clear whether planning approval was specifically required for those earlier signs. His submission was that the sign, the subject of the current application, requires assessment under current planning policies and standards.
Mr Cruickshank calculated that the area of the sign relative to the length of the truncated wall frontage resulted in a ratio of 1.55 square metres per metre of frontage. This was more than three times the 0.3 square metres standard requirement of Local Law 25(2). The sign allowed by the Council as a non‑complying development would be approximately 0.6 square metres per metre frontage. Mr Cruickshank said the smaller wall sign, approved in the May 2009 decision, would contribute to colour and interest as identified in the intent of Precinct 11 and would also be appropriate for the purpose of advertising the business.
In the opinion of Mr Cruickshank, the proposed wall sign was just too large. It would be inconsistent with maintaining the general amenity of the locality and so would be in conflict with the intention of the planning controls. Approval would set an undesirable precedent for other signs which would be in conflict with maintaining the future amenity of the locality and this would be inconsistent with orderly and proper planning.

Applicant

The applicant emphasised her description of the local streetscape as not attractive. She was of the opinion that allowing the truncated corner wall sign to remain would not have an adverse impact on the amenity of this commercial area.

Comment

It would be an expectation of passersby and nearby residents that consideration of new signs will be consistent with orderly and proper planning. To achieve this, regard must be had to the local amenity and consistency with the provisions of TPS 1, the Local Laws referred to in TPS 1 and the Policy. This expectation is reasonable unless there are particular circumstances of a case that warrant consideration of a variation to the planning standards.
Mr Cruickshank said that the respondent's interpretation of Local Law 25(2) was to restrict the area of street sign to each metre of street frontage for a particular street. That is, for the site there would be a calculation of sign area for the Albany Highway frontage, another for the Temple Street frontage and a third calculation of sign area for the truncated corner frontage. The proposed wall sign was considered by the respondent in the light of its location on the 3.7 metre long truncated corner frontage.
There is planning sense in the comments of Mr Cruickshank, in that it would appear to be inconsistent if a corner site could fortuitously total all street frontages, escape the requirement for planning approval under Local Law 25, and have installed one large sign on a wall where it would have a significant impact on a streetscape and local amenity.
The applicant made no submissions on this point and the Tribunal has not had any legal submissions on the interpretation of Local Law 25(2). In the event, the Tribunal has determined the matter on the facts and not found it necessary to seek full submissions from both parties.
The respondent has accepted that a smaller wall sign can be allowed on the truncated corner wall as a non-complying application. The applicant wants that concession from the standards of the planning instruments extended to allow the existing non-complying sign to remain.
The Tribunal has formed the view that as the existing sign remaining will not have any adverse impact on the visual appearance of the building and the local streetscapes, as discussed above, the sign would be consistent with the general amenity of this commercial area.
The third issue identified was whether approval of the proposed wall sign would be cited as a precedent for future applications.
In commenting on this issue, the Tribunal would distinguish applications that mirror the circumstances of this case from applications that propose new signs where there were previously no signs. Where an existing sign is to be replaced, this proposal may be a relevant consideration. A new sign would require assessment under the prevailing planning controls in the normal way and the current proposal could not be precedent of any weight. The Tribunal does not accept that any support for the current proposal would result in a general precedent for setting aside relevant planning considerations.

Conclusion

The Tribunal has formed the view that there is a case for allowing the signs, the subject of the respondent's May 2009 decision. The awning signs are not in dispute. The wall sign of the size applied for on the truncated corner wall has been part of this commercial streetscape for over 15 years. The sign has in that time displayed the name of the business in the premises (Exhibit 8). There is no issue with the colour and content of the sign.
The applicant does not seek approval of wall signs on the Albany Highway frontage and the Temple Street frontage, and so these signs would no longer contribute to the streetscape. The view of the proposed wall sign along Albany Highway would be among the existing signs on both sides of the road. In that regard, the Tribunal is of the view that the signage in the current proposal will contribute to the colour of this commercial strip but not add to a sense of 'visual chaos' or have an adverse impact on the local streetscape.
Orderly and proper planning demands that sign proposal be assessed against the relevant provisions of TPS 1, the Local Laws referred to in TPS 1 and the Policy. The respondent has approved a sign smaller than that applied for, but one which still require approval as an exception to the planning controls. The Tribunal has found that, having regard to the background to this proposal, relaxation of the requirements for standard wall signs, to the extent sought by the applicant, can be considered in this instance and there still be achieved an outcome consistent with the intent of the planning for the commercial area of Precinct 11.
The Tribunal, having formed the view that as the existing sign remaining will not have any adverse impact on the visual appearance of the building and the local streetscapes, as discussed above, has also found that the sign would be consistent with maintaining the general amenity of this commercial area.
Finally, the facts particular to this case have led the Tribunal to conclude that an approval of the proposal would not constitute a general precedent for the approval of oversized wall signs in this locality.

Orders

1.The application for review is allowed.
2.The Town of Victoria Park decision of 19 May 2009 is set aside and replaced with the following:
The application for retrospective planning approval for signs at 467‑475 Albany Highway, Victoria Park, set out in the plans dated 21 November 2008, as modified on 15 April 2009, by deletion of the wall sign on the Albany Highway frontage and the wall sign on the Temple Street frontage, is approved subject to the following:
(i)The existing wall signs on the Albany Highway frontage and the Temple Street frontage are to be removed from the site.
(ii)The existing wall sign on the northern wall (truncated corner) is granted planning approval.
(iii)Condition 1 is to be completed within 60 days of the date of this decision.

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER

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PRIOR and TOWN OF VICTORIA PARK [2009] WASAT 172

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