SMITH and TOWN OF CAMBRIDGE - [2012] WASAT 208

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SMITH and TOWN OF CAMBRIDGE [2012] WASAT 208

MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD: 8 OCTOBER 2012

DELIVERED : 18 OCTOBER 2012

FILE NO/S: DR 208 of 2012

BETWEEN: GLENN DONALD SMITH
Applicant
AND
TOWN OF CAMBRIDGE
Respondent

Catchwords:

Town planning - Development application for sign - Categorisation of sign - Consideration of planning framework - Streetscape and amenity - Scale and dominance of sign in relation to built form - Precedent effect

Legislation:

Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31
Town of Cambridge Town Planning Scheme No 1, cl 38

Result:

Application for review dismissed
Decision of respondent confirmed

Summary of Tribunal's decision:

<summary>This is a review of the respondent's, the Town of Cambridge's, decision to refuse development approval for a 'billboard' type advertising sign in West Leederville. The respondent refused the proposal on the grounds that it did not comply with the planning framework for the area, including its sign control policy and policies outlining intentions for the future redevelopment of the area. The respondent further argued that the proposal was of such a dimension that it would impact adversely on the streetscape and amenity of the area. It is also likely that the proposal would cause an undesirable precedent for similar applications in the locality. The applicant submitted that the proposal did not offend the planning framework for the area and was a useful transitional use, pending opportunity to implement optimal development of the land pursuant to the planning intentions for the area. The applicant rejected the proposition of any precedent being set because of the unique characteristics of the land. The Tribunal assessed that the proposed sign was of such a scale, height and dominance that it was out of character with the built form of the area, and that it would unreasonably impact on the streetscape and amenity of the locality. Insofar as the proposed sign would project above and beyond the profile of surrounding buildings, it may also be seen as an undesirable precedent for applications for signage that could similarly overbear other buildings in the locality. Based on these considerations, the Tribunal concluded that the application for review should be dismissed.
</summary>

Category: B

Representation:

Counsel:

Applicant: Mr J Algeri (Acting as Agent)
Respondent: Ms A Butterworth (Acting as Agent)

Solicitors:

Applicant: Algeri Planning & Appeals (Town Planners)
Respondent: Allerding & Associates

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

Mews and Western Australian Planning Commission [2012] WASAT 35

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is a review of a decision by the Town of Cambridge (Town, Council or respondent) not to grant approval of an application for an advertising sign, proposed to be erected at No 3 (Lot 1) Oxford Close, West Leederville (Lot 1, land or site).
Mr Mark Burns of Resolve Capital Pty Ltd, on behalf of Mr Glenn Smith (applicant), submitted the application to the respondent on 20 April 2012.
The respondent refused the application on 25 May 2012.
The applicant lodged an application for review of the respondent's decision with the Tribunal on 11 June 2012.
On 20 June 2012, by order of the Tribunal pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent was invited to reconsider its decision.
Following further consideration at the Council meeting of 24 July 2012, the respondent reaffirmed the decision not to grant approval to the proposed advertising sign.

The proposed development and its context

The proposal under review is an application for an advertising sign on Lot 1, a small lot of 300 square metres located at the corner of Oxford Close and Railway Parade.
The billboard sign will be 12.66 metres in length and 3.35 metres in height, and erected on columns such that the overall height will be 9.75 metres. It will be located adjacent to the northern boundary of the site and will face south to Railway Parade.
Lot 1 was formerly a 'used car sales' premises. This use is now discontinued.
The site is presently occupied by a small office building and the remainder of the site is paved and used for parking.
A recent application for a billboard sign of similar size to the present proposal and to be located adjacent the western boundary of the site was approved by the respondent on 2 April 2012. It will replace an existing billboard sign erected on the western boundary situated, in part, over the small office building.
A sign advertising 'City West Massage' is painted on the southern wall of the adjacent premises in Oxford Close.

Statutory and policy instruments

The land is zoned Commercial Single Dwelling under the Town of Cambridge Town Planning Scheme No 1 (TPS 1).
Criteria for the approval of advertising signs under TPS 1 are set out under the respondent's local planning policy for 'Ancillary Uses and Development' Policy 5.2 Advertising Signs (LPP 5.2 or Policy).
The introduction to LPP 5.2 observes that '[t]he proliferation of unauthorised advertising signs has the potential to significantly detract from the visual amenity of the Town ...'.
LPP 5.2 includes the following aims:
•To facilitate the advertisement of goods and services.
•To minimise the adverse impact that outdoor advertising can cause through proliferation or poorly located or designed signage.
•To ensure that signs do not detract from the level of safety for drivers, cyclists and pedestrians by obstructing sight lines and distracting road users.
Clause 2 of LPP 5.2 provides that all signs (other than certain exempt signs) require development approval under TPS 1.
Clause 2.1(a) of LPP 5.2 provides that '[s]igns shall display information relating to the site of the advertisement'.
Clause 2.6 of LPP 5.2 provides, in respect of 'pylon' signs, that:
(a)A pylon sign is a standalone advertising sign supported by one or more piers and not attached to a building.
(b)A pylon sign shall comply with the following requirements:
(i)there is a maximum of one sign per property;
(ii)the sign has a maximum overall height of 6.0 metres;
(iii)the sign has a maximum area of 5 [metres squared];
(iv)the sign has a minimum ground clearance of 2.75 metres;
(v)the sign is located within 3.0 metres of the street alignment;
(vi)the sign is a minimum distance of 5.0 metres from adjacent sites;
(vii)if illuminated, the sign is a minimum distance of 30 metres from traffic signals;
(viii)the sign is aligned at a right angles [sic] to [the] street;
(ix)the sign does not extend beyond the site boundary; and
(x)the supporting structure of the sign does not interfere with vehicle sight lines or pedestrian safety.
Clause 2.3 of LPP 5.2 describes a 'wall' sign as 'an advertising sign attached or painted directly onto an external wall'. Such a sign would not be permitted unless it 'is for the purpose of identification of the building, its ownership or the major activities carried on within it …'.
Other than the preceding references, there is no identification or description of a 'billboard' sign, 'hoarding' or any other generic form of sign similar to the sign the subject of this review mentioned in the text of LPP 5.2.
The respondent has adopted a policy, a study and a plan to signal intentions for the redevelopment of the West Leederville area. These include:
•local planning policy Policy 6.5: Precinct P5: West Leederville adopted in October 2009 and revised as an implementation policy in draft form in December 2010;
•the West Leederville Planning and Urban Design Study, adopted in December 2010; and
•the West Leederville Activity Centre Plan, adopted in August 2011.

The respondent's decision

The respondent refused the application for a temporary sign for the following reasons:
1)The application does not meet any of the requirements of LPP 5.2, in particular:
a)only one sign is permitted per site and one sign has already been approved for this site; and
b)signs shall have to be a certain size and height, which this application subsequently exceeds.
2)The Town considers that this area is undergoing considerable improvement and significant investment. The Town wants to see the area redeveloped to a high standard, and a proliferation of advertising signs would detract from the general amenity of the area and may deter prospective property developers.
3)With respect to 2) above, the approval of this application would set an undesirable precedent for the area.

Issues

The principal issues to be considered in this review are:
1)whether the proposed advertising sign is an appropriate development on the site, having regard to the relevant planning framework for the area;
2)whether the proposed advertising sign will have an adverse impact on the streetscape and amenity of the area; and
3)whether the proposed advertising sign has the potential to set an undesirable precedent for future development in the area.

The respondent's argument

The respondent argued that the proposed sign did not comply or conform with the planning framework of the area and, if established, would adversely impact on the streetscape and amenity of the locality.
There would be potential to set an undesirable precedent for owners of other sites to seek approval for similarly scaled signage.
Ms Amanda Butterworth, a qualified and experienced town planner, gave evidence on behalf of the respondent.
According to Ms Butterworth, the proposed sign, which could be most closely described as a 'pylon' sign in the context of LPP 5.2, is of a size and scale much greater than that allowed for under the relevant policy criteria at cl 2.6 of LPP 5.2.
Ms Butterworth described the exceptional circumstances of the respondent's recent approval of another large sign on the western side of the land. Although also noncompliant with policy criteria, it was deemed allowable only because it would be a replacement of the similar sized 20yearold sign presently situated on the site. It is an exchange of 'old' for 'new'.
Ms Butterworth indicated that approval of another sign would far exceed the acceptable limits permissible under LPP 5.2. The proposed combination of signs would exceed 80 square metres of advertising on a lot of 301 square metres.
The proposed sign is not intended to be limited to advertisement in connection with the activity of the premises. This, according to Ms Butterworth, is inconsistent with cl 2.1(a) of LPP 5.2.
Ms Butterworth referred to cl 38 of TPS 1, citing matters to be considered in determining applications for approval. In particular, Ms Butterworth drew attention to the requirement to consider 'the design, scale and relationship to existing buildings and surroundings of any proposed building or structure'.
The extent and scale of signage proposed on the land is prolific and dominant in comparison to its surroundings, according to Ms Butterworth. It will adversely affect the streetscape of both Oxford Close and Railway Parade.
Ms Butterworth described intentions for the area outlined in the respondent's West Leederville Activity Centre Plan. These include replacement of the existing low intensity, singlestorey, street front car parks and blank walls with multilevel development with activated frontages. In her opinion, Ms Butterworth considered that the proposed large sign would not assist in achieving this desired form of development.
Turning to the question of precedent, Ms Butterworth identified that if such an extent of advertising is approved on Lot 1, it would create a real precedent for future extensive signage on similar sites along Railway Parade. Such signage would be inconsistent with the respondent's vision for the area and therefore would be entirely undesirable.

The applicant's argument

The applicant argued that approval of the proposed sign would not offend the planning framework for the area, would not have any adverse impact on the streetscape or amenity of the area and, because of its unique circumstance, would set no undesirable precedent for the area.
Mr Burns, the contractual purchaser of Lot 1, provided evidence that he was aware of the respondent's development intentions for the area and that he was willing to participate in pursuit of those objectives. He described how he wished to 'land bank' the site while planning studies progressed and in order to facilitate the land being amalgamated.
Mr Burns stated that the sign application is for an interim use of the land, pending future amalgamation and redevelopment.
Mr Joe Algeri, a qualified and experienced town planner, gave evidence on behalf of the applicant.
Mr Algeri described the proposed sign as a 'billboard', making the point that the proposal does not exactly correspond with sign categories dealt with in LPP 5.2.
Mr Algeri advised that while the proposed sign could be considered as a 'pylon' sign, it is not in a configuration typically expected of street alignment pylon signs usually associated with commercial strip developments. For this reason, the requirements listed in cl 2.6(b) of LPP 5.2 appear to have no relevant application to the current proposal.
The proposed sign could also be considered as comparable with a 'wall' sign, as described at cl 2.3 of LPP 5.2. In this regard, Mr Algeri noted that the proposed signs on Lot 1:
•reflected the scale and position of signs already approved and existing on the land;
•compared with other similarly scaled signs in the locality; and
•would not be unreasonably visible from residential or other sensitive premises.
By approving the earlier application for a similar 'billboard' type sign on the land, the respondent has already shown a flexible attitude to the application of LPP 5.2. Mr Algeri explained this circumstance, pointing out that the introduction of LPP 5.2 does not explicitly discuss the application of design standards and makes clear that the provisions are to only apply 'in general', and that there is, therefore, scope to modify standards under the Policy.
In such circumstances, it is therefore reasonable to consider variation of development standards under LPP 5.2 in relation to the currently proposed sign.
With respect to the West Leederville Activity Centre Plan, Mr Algeri acknowledged that it should be given reasonable weight. The West Leederville Activity Centre Plan does not, however, provide specific details as to the expectations of signage and advertising in the precinct. Mr Algeri was of the view that while the area would undergo transition, it will maintain office, commercial and nonresidential uses commonly associated with outdoor advertising.
The proposed sign does not, therefore, conflict with the West Leederville Activity Centre Plan.
Mr Algeri expressed the view that the proposed sign would, in itself, have no detrimental impact on the character and amenity of the area. The sign would sit against the outline of the adjoining buildings. Existing outdoor advertising signage in the form of billboards and wall signs, both on the land and in the vicinity, are part of the character and amenity of the area. If the proposed sign was not established, a 'wall' sign at No 5 Oxford Close could be established with the same effect.
On the question of precedent, if another proposal of similar size, scale and relationship with surrounding buildings was applied for, it would be Mr Algeri's view that such a proposal would also be unlikely to impact on streetscape or amenity, given the existing level of outdoor advertising.
Mr Algeri explained that any precedent that arises from the proposal is likely to be the same, whether the current application is approved or not, due to the existence of the already approved billboard. The difference between one or two billboards is marginal, especially in light of the 'City West Massage' sign on the northern boundary wall.
In Mr Algeri's opinion, the question of precedent should also take into account that the site in question has unique characteristics owing to its history as a car sales yard, its existing signage, and its exposed corner location. These are not common circumstances likely to be found in the locality.
Mr Algeri advised that, in his opinion, it would be desirable to pursue the amalgamation of Lot 1 with adjoining property to achieve development objectives outlined in the West Leederville Activity Centre Plan. In the meantime, approval of the current sign proposal would be unlikely to prejudice the desired development of the area.
Responding to examination, Mr Algeri accepted that the proposed billboard sign was considerably larger than the 'City West Massage' wall sign, and that it is designed to project substantially above the adjoining building at No 5 Oxford Close. It will also protrude well forward of the same building to within 2 metres of the street boundary. At its proposed height, the sign will not, of itself, obscure the 'City West Massage' wall sign, which would still be visible below the sign's lower edge. It is intended, however, to clad the support pylons in a manner that would infill screen between the pylons and obscure the wall sign behind.
Mr Algeri accepted that in respect of the height and forward projection of the proposed sign, there would be some visibility of the rear of the sign from Oxford Close. Given such visibility, the rear appearance of the structure should be appropriately designed and, to effect this, an appropriately worded condition of approval could be imposed.
In terms of the concepts for development of the area identified in the West Leederville Activity Centre Plan, namely, tall, street front buildings and treelined streets, Mr Algeri conceded that the proposed billboard signs would be incompatible with such a built environment. They should be viewed as an interim or transitional use.

Draft conditions of approval

The following draft conditions of approval were agreed by the parties:
1)This approval relates to the plans and application as submitted on 20 April 2012.
2)Any lighting associated with the sign shall be designed to comply with the Australian Standard AS 4282 Control of Obtrusive Effects of Outdoor Lighting or other relevant Australian Standard.
3)The billboard shall not flash, pulsate or be lit in such a manner, or be of such intensity, so as to cause annoyance or to interfere with any current traffic signals.
4)This decision constitutes a planning approval only and is valid for a period of two years from the date of the Tribunal's approval. If the subject development is not substantially commenced within the two year period, the approval shall lapse and be of no further effect.
5)The form and extent of cladding over and between the support columns of the sign is to be designed and detailed to the satisfaction of the Manager of Planning Services.
6)The treatment of the rear elevation of the sign is to be designed and detailed to the satisfaction of the Manager of Planning Services.

Analysis

With regard to the issues under examination, it is first necessary to measure the application in respect of compliance with the relevant planning framework.
The respondent sought to demonstrate that the proposal is noncompliant with the prevailing sign control policy.
Reference was made to the required standards for pylon signs under LPP 5.2 to show that the proposed sign would not conform with standards pertaining to required dimensional characteristics, orientation or numbers of signs permitted on site.

The respondent also suggested that if the application was not considered to be a pylon sign, but rather, as a billboard, which is not mentioned or categorised in the text of LPP 5.2, then it should be presumed, by such omission, that such signs are generally not contemplated as acceptable.
The respondent outlined the future development intentions for the area, particularly the pursuit of tall, well designed street front buildings and treelined streets. In this regard, the proposed sign would not be compatible with such intentions as described in the West Leederville Activity Centre Plan adopted by the Council.
The applicant alternatively offered that the proposed sign is, actually, best described as a billboard, although it is erected on pylons. It could, however, also be assessed as having similar visual qualities as a wall sign. In any event, LPP 5.2 should be treated as a general guide and used with flexibility to determine applications.
The applicant sought to demonstrate that the proposed sign did not offend the objectives of LPP 5.2 and that the proposal, because of its interim nature, would have no implications for future planning intentions for the area.
Apart from the general aim '[t]o minimise the adverse impact that outdoor advertising can cause through proliferation of poorly located or designed signage', the Tribunal finds LPP 5.2 somewhat unhelpful in assessing the application. Measurement of the application against the sign categories in the policy is relatively futile, because the proposed sign is, clearly, quite a different type to those listed.
The assumption that because the sign type is not listed, it should not be permitted, should, however, be treated with caution. The policy itself is silent on this issue. In fact, the respondent itself has recently approved such a sign on the land, albeit on the rationale that it constitutes a 'new for old' replacement.
In the absence of any particularly relevant requirements under LPP 5.2, the Tribunal returns to the general provisions for determining applications set out at cl 38 of TPS 1, particularly the requirement to have regard to 'the design, scale and relationship to existing buildings and surroundings of any proposed building or structure'.
The buildings surrounding the site are generally twostorey, commercial structures fronting busy, well trafficked streets. The recently approved sign on the western boundary of Lot 1, replacing an existing sign, will be elevated above the adjoining twostorey building on Railway Parade. Similarly, the currently proposed sign on the northern boundary will project above the adjoining building on Oxford Close by about the equivalent of one storey. It will also jut horizontally well forward towards the street in front of the same building.
The Tribunal considers, from the configuration and placement of the signs proposed, that they would, in effect, become a highly dominant feature of the streetscape at this street corner and that the surrounding buildings will be substantially obscured.
The question therefore arises whether such a dominating presence of advertising signage is reasonable in the local streetscape.
Whilst acknowledging that the design quality of the buildings in the locality is not particularly high and that there is a regular incidence of outdoor advertising, particularly wall signs, in the locality, it is generally apparent that buildings and their form dominate the visual character of the area and the streetscape. Advertising is a secondary feature.
The substantial and increased scale of signage proposed for Lot 1 reverses the relationship between buildings and signs, and is arguably, therefore, out of character with its surroundings.
The implication of an approval of a proposal of this nature is that the immediate street will be further dominated by signage.
Whether or not the proposed signage is an interim use, it would not contribute positively to, or harmonise with, the prevailing built form character of the area, nor is it likely to be compatible, in the future, with development of the area associated with tall street front buildings and treelined streets, as identified in the West Leederville Activity Centre Plan.
The Tribunal concludes, from these circumstances, that in the context of considering the design, scale and relationship to existing buildings and surroundings as contemplated by TPS 1, the proposal would offend the aim of LPP 5.2, which intends, in part, to minimise the adverse impact of inappropriately designed and located outdoor advertising.
Further, the Tribunal finds that it would not be consistent with the extended planning framework, including adopted policies and plans for future redevelopment of the locality.
Turning to the issue of whether the proposal would have an adverse impact on the streetscape and amenity of the area, it is evident that the response to this question is conflated into the discussion of the preceding issue concerning the planning framework for the area.
It is apparent from that discussion that the proposed development will have a significant impact on the streetscape and, to the extent that it would be out of character and out of scale with the prevailing built environment, it could be said to detract visually from the amenity of the area.
The Tribunal agrees with the applicant that the proposed sign is generically a billboard. It is of a scale and configuration perhaps more commonly anticipated in a stand alone presence on a highway or railway reserve. The placement of such a type of sign in spacious surroundings would tend to enhance the effectiveness of the advertising message and avoid confusion with expectations for the visual quality of urban streets.
Situated in the closely built urban environment of West Leederville, however, the proposed sign displays design features that are not helpful in promoting an attractive streetscape. These features include the overbearing scale of the structure in relation to surrounding buildings and Railway Parade, the highly visible, blank, protruding rear aspect of the sign viewed from Oxford Close and, overall, the accumulated concentration of advertising on a small lot.
Turning, finally, to the issue of precedence, the Tribunal notes the applicant's argument that Lot 1 is of a unique character, and the circumstances of another application of a similar nature are not likely to be repeated in the locality. Accordingly, there is unlikely to be a question of undesirable precedent.
The Tribunal accepts that it is probably unlikely that there will be a similar situation of a vacant corner lot with an existing billboard sign as a starting point for new billboard sign applications.
Mindful of the criteria for precedence identified in Mews and Western Australian Planning Commission [2012] WASAT 35, the Tribunal considers that the characteristic of this application that may, however, represent an undesirable precedent, is that the proposed signs on Lot 1 would project wholly above, or at least substantially above, the roofline of the surrounding twostorey buildings. This outcome is plainly not reliant on a circumstance of erecting signs on a vacant corner lot. It does, however, identify an outcome of this application that may well be able to be replicated along Railway Parade and elsewhere in the locality on properties, whether or not they are occupied with buildings.
To the extent, then, that the proposal comprises signage of major dimension, projecting above and beyond the form of buildings generally characteristic of the area, the Tribunal considers that approval of the proposal could conceivably constitute an undesirable precedent, encouraging applications that may result in similar outcomes.

Conclusion

Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse the development application for an advertising sign at Lot 1 Oxford Close, West Leederville, should be dismissed.

Order

The Tribunal therefore makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 24 July 2012 to refuse development approval for the advertising sign at Lot 1 Oxford Close, West Leederville, is affirmed.

I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER