THORNTON and SHIRE OF DENMARK
[2021] WASAT 146
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: THORNTON and SHIRE OF DENMARK [2021] WASAT 146
MEMBER: MS R LAVERY, MEMBER
HEARD: 18 AUGUST 2021
DELIVERED : 17 NOVEMBER 2021
FILE NO/S: DR 227 of 2020
BETWEEN: ROSS THORNTON
Applicant
AND
SHIRE OF DENMARK
Respondent
Catchwords:
Town planning - Development application - Refusal of promotional poster sign as part of approval of total site signage plan - Whether appropriate to depart from established planning framework - Location and context - Whether there is cogent reason to depart from policy
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, Pt 1, Pt 8, Pt 9, cl 1, cl 1(a), cl 67, cl 90(2)
Planning and Development Act 2005 (WA), s 257B
Planning Regulations Amendment Regulations 2020 (WA), Pt 2, reg 74(2)
Shire of Denmark Town Planning Scheme No 3, cl 3.1.3(c), cl 5.30, cl 5.30.1, cl 5.30.4
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31(1), s 31(3), s 31(2)(c)
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr L Kosova |
| Respondent | : | Mr J Algeri |
Solicitors:
| Applicant | : | LK Advisory Pty Ltd |
| Respondent | : | Altus Planning |
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Tran and Town of Vincent [2009] WASAT 123(S); (2009) 65 SR (WA) 260
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Ross Thornton (applicant) made application on 21 August 2020 to the Shire of Denmark (respondent or Shire) for development approval for a total site signage plan for the approved service station (original application) at No. 69 (Lot 75) Strata Lot 1 South Coast Highway, Denmark (subject site).
The proposed signage was part of the rebranding of the site from Caltex to Shell. The development application proposed 37 signs across the forecourt area, above and below the forecourt roof canopy, on the front and side walls of the building and adjoining the South Coast Highway subject site boundary. This original application included a site plan showing two promotional poster signs, and a fuel price board and branding sign immediately adjoining the South Coast Highway boundary with the subject site.
The original application was determined under delegation on 16 September 2020 (original approval) and granted approval subject to three conditions. Condition 1 is relevant to this review and reads:
The signage shall be in accordance with the attached stamped approved plans and details, including any modifications in red, dated 21 August 2020.
The stamped approved plans attached to the original approval include a modification in red requiring the reduction in size of the two promotional poster signs located within Lot 75 adjacent to South Coast Highway road reserve that reads:
On-ground signs to be a maximum of 1.2m high and 1.0m2 in area. No illumination of on-ground signs is permitted.
The applicant on 4 October 2020 made application for review of the decision of the respondent dated 16 September 2020 to the Tribunal seeking that the respondent's approval, which reduced the size of the two promotional poster signs be varied such that the size of the signs as submitted, be approved.
Following mediation, pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the respondent was invited to reconsider the application as the applicant had submitted a revised proposal for the total site signage plan to the respondent which included two promotional poster signs located adjoining the South Coast Highway road reserve within the subject site, both with heights reduced from 1.684 metres to 1.484 metres achieved by reducing the plinth of both signs from 0.334 metre to 0.134 metre. The width of the two promotional poster signs remained at 0.957 metre (revised proposal).
The Council of the respondent determined the application on 15 December 2020, setting aside the original approval and granted development approval to the total site signage plan subject to eight conditions (December 2020 approval). The December 2020 approval granted approval to 36 signs, all of which, with the exception of the western promotional poster sign had remained unchanged and been previously granted approval as part of the original proposal. The December 2020 approval also granted approval for one promotional poster sign in the western-most location as proposed by the applicant (western promotional poster sign). The December 2020 approval added additional conditions, of particular note in this application for review is Condition 1 which has the effect of refusing the eastern promotional poster sign and Condition 2 requiring the promotional poster sign to be located within Lot 75 and verification by survey of the boundary.
The attached stamped approved plans include the following annotations in red.
i)In regard to the eastern promotional poster sign the annotation in red was:
'Sign not part of approval'.
ii)In regard to the western promotional poster sign the annotation in red was:
'On Ground Sign (Promotional Poster Units Sign) to be a maximum of 1.484 m high and a maximum of 0.957m wide. No illumination permitted'.
The December 2020 approval essentially resulted in the refusal of the eastern promotional poster sign, which is the substantial issue in the determination of this matter.
The application for review now seeks to have the December 2020 approval reviewed such that the annotation of the modification shown in red on the approved plans date stamped 16 December 2020 imposed by Condition 1 of the December 2020 approval is deleted and the eastern promotional poster sign is granted approval as proposed in the revised proposal.
On the morning of 21 May 2021, the Tribunal, together with representatives of the parties and their experts, had the benefit of a view of the subject site, neighbouring properties and the immediate locality. At the commencement of the final hearing the Tribunal identified that the applicant had relied heavily on a comparison of the December 2020 approval with the original approval that had been set aside under s 31(2)(c) of the SAT Act and I pointed out that the December 2020 approval was the 'new' decision that was before the Tribunal.[1] The Tribunal also raised the following two issues that needed to be addressed:
1)Is there a cogent reason to depart from Shire of Denmark – Town Planning Scheme Policy No 32 - Signs (LPP 32)?
2)What weight should be accorded to the principle of consistency in decision-making in the exercise of discretion in the circumstances of this case?
[1] Section 31(3), SAT Act.
The applicant sought and the respondent agreed to an adjournment of the final hearing to investigate the issues raised and orders were made for the parties to provide amended Statement of Facts and Contentions (amended SFIC) and witness statements. The Tribunal made orders to this effect and the final hearing was adjourned to and held on 18 August 2021.
Subject land
The subject site is and is 1516m2 in area. The subject site forms part of a two lot strata scheme (Strata Plan 48254).
The subject site currently contains a service station with convenience store component which has recently been extended and rebranded with approval from the respondent.
Although the subject site has a secondary frontage to Ocean Beach Road, there is no vehicular access to Ocean Beach Road, vehicular access is provided by two crossovers from South Coast Highway.
The proposal
The revised proposal sought approval for a total site signage plan for an existing approved Shell Service Station. The development application proposed 37 signs across the forecourt area, above and beneath the forecourt roof canopy, on the front of the building and adjacent to the South Coast Highway boundary. Thirty-five of the 37 signs have now been installed on the subject site.
The sign that is in dispute can be described as a double-sided promotional poster sign which is located on the subject site within the landscaping area adjoining the South Coast Highway boundary, to the east of the fuel price board and branding sign and adjacent to the eastern driveway. The dimensions of the sign are 1.484 metres in height and 0.957 metres in width.
The western promotional poster sign was approved with a reduced height of 1.484 metres and a width of 0.957 metres by the respondent in the December 2020 approval, this is not a matter in dispute between the parties.
Planning framework
Local Planning Scheme
The subject site is zoned Commercial with a density code of R20 under the Shire of Denmark Town Planning Scheme No 3 (TPS 3 or the Scheme). Schedule 2 - Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) have affect as part of TPS 3 due to the operation of s 257B of the Planning and Development Act 2005 (WA) (PD Act).
Clause 3.1.3(c) of the Scheme sets out the purpose and intent for the commercial zone as being to allocate land for the major service, retail, office and entertainment uses in the townsite.[2]
[2] TPS 3, cl 3.1.3(c).
The parties agree that this application fell within the definition of development and requires development approval. The application before the Tribunal is for advertising defined in the deemed provisions at Sch 2, Pt 1, cl 1 as follows:
advertisement means any word, letter, model, sign, placard, board, notice, device or representation, whether illuminated or not, that is used wholly or partly for the purposes of advertising, announcing or directing, and includes -
(a)any hoarding or similar structure used, or adapted for use, for the display of advertisements[.][3]
[3] Deemed Provisions, Sch 2, Pt 1, cl 1(a).
The parties agree for the purpose of the deemed provisions this application is not one for which development approval is not required.
Clause 5.30 of the Scheme refers to the control of advertisements. Clause 5.30.1 of the Scheme states:
Council's objectives in the control of advertising signs is:
to secure the orderly and proper planning and the amenity of the Scheme Area through the control of advertisements by the examination and determination of applications for advertising signs in the light of:
-The impact of new advertisements upon residential, rural and recreational areas;
-The potential of any advertisement to enhance or detract from the visual amenity and character of an area; and
-The potential for the rationalisation, consolidation or removal of existing advertisements where amenity is already impaired by poor, excessive or derelict advertising.
For the purpose of the consideration of signage applications, cl 5.30.4 of the Scheme is also relevant and states as follows:
Consideration of Applications
Without limiting the generality of the matters which may be taken into account when making a decision upon an application for consent to erect, place or display an advertisement, the Shire shall examine each such application in the light of the objectives of the Scheme and with particular reference to the character and amenity of the locality within which it is to be displayed.
The matters identified in cl 5.30.4 are matters that fall within the ambit of cl 67 of the Deemed Provisions.
The Tribunal notes that reg 74(2) of Pt 2 of the Planning Regulations Amendment Regulations 2020 (WA), (Amendment Regulations) which came into effect on 15 February 2021, amended cl 67 of the deemed provisions. However, cl 90(2) of the amended deemed provisions provides that Pt 8 and Pt 9 made by the Amendment Regulations do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made prior to the commencement day, cl 67 of the 'former deemed provisions' apply in this case. In essence there is no material difference in respect to this application.
The relevant matters in cl 67 of the former deemed provisions to which the Tribunal is to have due regard to in determining this application are:
•the aims and provisions of the Scheme (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any local planning policy (subclause (g));
•the compatibility of the development with its setting (subclause (m));
•the amenity of the locality (subclause (n));
•the history of the site where the development is to be located (subclause (w));
•any submissions received on the application (subclause (y)); and
•(any other planning consideration considered appropriate (subclause (zb)).[4]
Local Planning Policy
The relevant local planning policies referred to by the parties include:
•Shire of Denmark Local Planning Policy 32 - Signs;
•Shire of Denmark Local Planning Policy 15 - Townscape Policy;
•Shire of Denmark Local Planning Policy 28 - Settlement Strategy for Denmark;
•Shire of Denmark Local Planning Policy 26.1 - South Coast Highway Commercial Developments; and
•Shire of Denmark Local Planning Policy 31 - Commercial Strategy.
Local Planning Policy No. 28 - Settlement Strategy for Denmark (LPP 28) was adopted by the Shire on 22 December 1998 the strategy objectives relevant to the review are to:
•maintain Denmark[']s essential character as a country town; [and]
…
•retain the rural character and tree lined approaches to Denmark townsite[.]
The respondent submits that these broad objectives are supported by planning polices which address specific planning issues:
(a)Local Planning Policy No. 26 - South Coast Highway Commercial Developments (LPP 26) which has as its goal the maintenance of the central character of Denmark and preservation of the attractive entrances to the Denmark townsite;
(b)Local Planning Policy No. 15 - Townscape Policy (LPP 15) which in relation to approaches and town entries provides that in determining development applications council will maintain and enhance approaches to the town by discouraging bill posting and hoardings, and by formalising the placement of appropriate signs.
Issues
The issues for determination in this review are:
1)Whether the promotional poster sign which the respondent has refused to approve would:
a)be incompatible with the setting of the subject site; and
b)have an unacceptable adverse impact on the character and amenity of:
i)the western approach and entrance to the Denmark townsite along South Coast Highway; and
ii)the streetscape of South Coast Highway and the locality.
2)Whether the promotional poster sign would exacerbate the visual clutter of signage to the detriment of the streetscape.
3)Whether the promotional poster sign would compromise the required landscaping along the South Coast Highway boundary of the subject site to the detriment of streetscape.
4)Is there a cogent reason to depart from LPP 32?
5)What weight should be accorded to the principle of consistency in decision-making in the exercise of discretion in the circumstances of this case?
The five agreed issues will be addressed in turn.
Issue 1 - Whether the promotional poster sign which the respondent has refused to approve would:
(a)be incompatible with the setting of the subject site; and
(b)have an unacceptable adverse impact on the character and amenity of:
(i)the western approach and entrance to the Denmark townsite along South Coast Highway; and
(ii) the streetscape of South Coast Highway and the locality.
The Tribunal heard expert evidence from two town planners, Ms Annette Ruth Harbron on behalf of the applicant and Ms Jasmine Anne Tothill on behalf of the respondent.
The respondent contends that the promotional poster sign would be incompatible with the setting of the subject site which involves an assessment of streetscape and locality[5]
[5] Respondent's Statement of Issues, Facts and Contentions (SIFC) dated 11 June 2021, Exhibit 2, para 37.
Ms Tothill in oral evidence says in relation to the character of the area:
In terms of the character, I suppose there has been a lot said about village feel and trying to, sort of, knuckle that down because it's all a matter of perception as well sometimes. But I think it's about built form, mainly; the village feel. It's about the mix of shops; smaller shops, less franchise which are hard to control from a planning sense, but I think that becomes part of the village feel.
It's the low scale of buildings, verandas. It's the mix of heritage buildings as well in the town; little churches on the main street. And in terms of the character that's more borne also by the natural landscape; the scenic valleys that approaches the Denmark River. The treelined streetscapes which are referenced in the policy as well. So I think they all combine. It's a bit eclectic, it's a bit old but that all forms part of the character of Denmark, in my opinion.
Ms Harbron says in evidence that she would not disagree with what Ms Tothill has said and had nothing further to add.
As such the Tribunal accepts the description of the character of the locality agreed by the witnesses.
The promotional poster sign would have an adverse impact on the character and amenity of the locality in which it is to be displayed, due to the prominent position of the subject site on South Coast Highway which is the primary approach route from the west and entrance into the Denmark township. The respondent submits that Denmark is a quaint country town in which signage is generally more modestly proportioned and limited in scale. The respondent argues that having two large promotional poster signs, is not compatible with the character of the desired entrance to the Denmark townsite or with the highway streetscape.
Further the respondent submits that the eastern promotional poster sign will have an adverse impact on the existing amenity and character of this approach to the townsite, which is dominated by mature vegetation. The respondent argues that visually the approach along South Coast Highway into Denmark's townsite from the west predominantly compromises mature vegetation with some residential development and then some sporadic non-residential development. There is limited commercial signage in significant concentration, until you reach the subject site. The respondent argues that the Shell Service Station rebranding proposes a great deal more signage around the bowsers, canopy, forecourt and building to that which was previously approved for the site and indeed, what has been approved previously within the Denmark townsite. The respondent submits that most of that signage has been approved by the respondent through flexible application of relevant policy and the policy framework, however in this instance the additional promotional poster sign on that highway frontage is incompatible with the setting of the subject site.
The streetscape in which the subject site is located is described by Ms Tothill as the portion of South Coast Highway generally between the Hardy Street intersection to the west and the Millar Street/Short Street intersection to the east which correlates with the western most extent of commercial zoned land in TPS 3 and to the east, the boundary of the 'Town Centre Inner Core' in the Shire of Denmark Local Planning Strategy (2011) (Local Planning Strategy).[6] Ms Tothill submits that she has taken into consideration a number of factors that she considers influence the streetscape character and setting, including the general lot typology, mix of land uses, development form/setbacks, street alignment (continuity of vista and view lines), verge and road treatment (including footpaths, kerbing, street trees), landscaping and signage and contends that the locality is distinct from the townsite approach west of Hardy Street that includes residential gardens with open swale drains to the north, large canopy trees, remnant bushland, residual rural holdings and the Koorabup Motel and Denmark Tavern to the south. To the east of the locality commercial development generally transitions to a more intensive traditional shop front typology. Ms Tothill argues there are some land use similarities, (including two service stations) east of the locality, in considering continuity in streetscape and sight lines, she is of the opinion that the setting more closely aligns with the 'Town Centre - Inner Core' area.
[6] Witness Statement of Jasmine Anne Tothill dated 26 July 2021, Exhibit 6, paras 14 - 18.
Ms Tothill contends that the streetscape within the locality is representative of a small scale commercial strip on the western approach to the town centre, being interspersed with public uses, residual housing, vacant lots and public reserves. South Coast Highway is a straight stretch of road with the streetscape vista delineated by a slight bend in the road alignment at the western end and again at the eastern end where the road dips more steeply downward towards the Denmark River. With the exception of a large vacant commercial lot on the Hardy Street intersection, South Coast Highway is kerbed on both sides. Overhead powerlines and streetlights run the length of the northern side of South Coast Highway. The western portion of the locality aligns with a speed zone change between 60 kilometres per hour and 50 kilometres per hour. On road marked car parking bays are introduced in this locality on the east bound lane. Street trees are sparse and generally of a smaller size.
In regard to whether the eastern promotional poster sign would have an adverse impact on the character and the amenity of the western approach to the townsite and the highway streetscape, the respondent says that in coming to its determination it took the view that it would be reasonable to expect some additional signage material associated with company logos and that of a promotional nature within the context of a service station with modern corporate branding. However, the respondent contends this does not alleviate the need to balance the extent of such signage against the impacts it does have on the streetscape and the amenity and the character of the townsite, and in her evidence, Ms Tothill shares and expresses this view.
The respondent also contends that the proximity of the promotional poster sign to South Coast Highway and the cumulative effect which the promotional poster sign would have when added to the other advertising signage approved for the subject site will have an adverse impact on the amenity of the streetscape. Ms Tothill submits that the Shell Service Station is located in a prominent position on the junction of South Coast Highway and Ocean Beach Road and the two promotional poster signs will be readily visible on this western approach to the Denmark Town Centre and within the nearby locality.[7] In Ms Tothill's opinion, the duplication of such signage will contribute towards additional visual clutter so as to detract from the townsite approach.
[7] Witness statement of Jasmine Anne Tothill dated 26 July 2021, Exhibit 6, para 52.
The applicant contends that the eastern promotional poster sign would be compatible with the locality for the following reasons.[8]
[8] Applicant's SIFC dated 28 June 2021, Exhibit 4, para 37.
Firstly, the approved pylon sign and approved western promotional poster sign will obscure the proposed eastern promotional poster sign from the view of east-bound traffic along South Coast Highway, resulting in the eastern promotional poster sign having negligible to no impact on the character and amenity of the western entrance to Denmark along South Coast Highway and that the respondent's description of the character and amenity of this route is only applicable to South Coast Highway west of Ocean Beach Road.
Secondly, the applicant asserts that the proposed eastern promotional poster sign is positioned on the same setback alignment as the approved pylon sign and approved western promotional poster sign, and in the same location as the eastern promotional poster sign previously approved by the respondent on 16 September 2020. The applicant contends therefore that there is no basis to the respondent's complaint about that proximity of the refused sign to South Coast Highway.
Thirdly, the applicant submits that there are a myriad of other examples in the Denmark townsite of excessive, ad-hoc signage causing visual clutter and detracting from the character and amenity of the streetscape and the locality, including hoarding signs, tethered signs, banners and flags. The applicant contends that approval of the eastern promotional poster sign, in combination with all other approved signage on site and the completely renovated service station (with materials, design and colour palette that is compatible with the built form character and charm of Denmark), will represent some of the most attractive, orderly and coordinated commercial signage in the Denmark townsite.
Fourthly, the applicant also contends that the eastern promotional poster sign would be only the second advertising device on site for the convenience store component of the Shell Service Station. Without this eastern promotional poster sign, the applicant asserts that the convenience store would only be able to advertise its products on the approved western promotional poster sign and that this is extremely conservative when considering this convenience store has the longest trading hours of any other store in Denmark, operating from 5.30am to 9.30pm seven days per week, and services the needs of the community with a wide array of convenience goods, dine-in and take away meals, and daily convenience items.
Ms Harbron does not provide an assessment of the streetscape as such however she submits that the subject site, although located on the western approach to the Denmark townsite is not considered to be a town centre site as reflected in its designation as 'Commercial' and not 'Town Centre - Inner Core' in the Local Planning Strategy.[9] She submits that this designation reflects that the rhythm, scale, access configuration, land uses and interface of buildings in the vicinity of the subject site and the surrounding site that are designated 'Commercial' is vastly different to those located closer to the Strickland Street, Hollings Road and South Coast Highway precinct that is designated 'Town Centre - Inner Core'.
[9] Witness statement of Annette Ruth Harbron dated 26 July 2021, Exhibit 7, paras 38-40 and para 42.
Ms Harbron contends that the nature of the environment is one that is dominated by vehicles - both on-site and off-site and that with the nature of the land use on-site being car-dominant, the signage on-site needs to be considered in the context of a vehicle - both in terms of relative scale and from a visual perspective, as opposed to the pedestrian environment form that is envisaged for town centre developments.
Ms Harbron submits that the south-western corner of South Coast Highway and Ocean Beach Road (opposite corner to the subject site) is the Visitor Information Centre - whereby a Community Noticeboard hoarding sign structure has been erected to allow community groups and organisations to advertise upcoming events which at times of the year can be completely covered in numerous signs advertising community events, as well as additional signs placed either side of the structure of varying heights, sizes and textual information that itself establishes the character and amenity of this section of South Coast Highway, being somewhat eclectic and ad-hoc with respect to signage, which appears at odds with what is trying to be achieved by the planning framework for the area and what the applicant is seeking to deliver in terms of signage for the subject site.
The applicant asserts that the western promotional poster sign was the only sign allocated to advertise the convenience component of the operation. The eastern promotional poster sign is part of the total site signage plan for the site.
In relation to other examples of signage in the streetscape identified by the applicant, Ms Tothill in evidence advised that she had investigated the examples provided and confirmed that the majority of signs identified by the applicant were not approved.[10]
[10] Applicant's SIFC dated 28 June 2021, Exhibit 4, para 37.
In relation to this first issue, I prefer the evidence of Ms Tothill and submissions made by the respondent for the following reasons.
The streetscape as described by Ms Tothill is a small scale commercial strip on the western approach to the town centre, being interspersed with public uses, residual housing, vacant lots and public reserves and a route dominated by mature vegetation. I am persuaded by the respondent's argument that this area is characterised by modest signage and that although there is an expectation that signage will be required for the service station site, the approval of a second promotional poster sign would exacerbate the proliferation of signage on site such that it would be inconsistent with context of the locality and in particular the streetscape of the western approach to Denmark along South Coast Highway.
I am not persuaded by Ms Harbron's opinion that the nature of the streetscape is one dominated by vehicles both onsite and offsite and therefore the sign must be considered in the context of a vehicle rather than a pedestrian environment envisaged for a town centre as this is inconsistent with the agreed character of the locality.
I am also not persuaded by the applicant's argument that the impact of the eastern promotional poster sign is lessened by the sign being obscured by the western promotional poster sign and such that it will only be visible for a short time by vehicles travelling on South Coast Highway but rather, the obstruction is only from one direction and the sign is highly visible from other parts of the journey along South Coast highway by vehicle or as a pedestrian. As such I consider that the sign increases the impact of the abundant signage already on site and find that it is incompatible with the setting of the site in the locality, which it is agreed, is characterised as a village feel created by a built form of a mix of smaller shops and heritage buildings within the natural landscape. I find the additional promotional poster sign is also incompatible with the streetscape which is characterised as a tree lined streetscape with small scale commercial development including more modest signage and mature vegetation as it contributes to the proliferation of signage approved for the site such that it is not characteristic of the level of signage in the streetscape.
Issue 2 - Whether the promotional poster sign would exacerbate the visual clutter of signage to the detriment of the streetscape
Ms Tothill in her evidence points to the fact that the number of signs on site has increased for the Shell Service Station from the number of signs approved for the Caltex Service Station, and that the additional eastern promotional poster sign would exacerbate the visual clutter of the subject site and is not characteristic of development in the locality.
Clause 1.7 of the LPP 32 identifies visual impact on streetscape and the overall locality as main concerns. An objective of the LPP 32 includes the reduction of visual clutter and landscape detraction. The respondent contends that the proposed eastern promotional poster sign would have an adverse impact on the streetscape of South Coast Highway and the locality, increase visual clutter of signage on the subject site and detract from the landscape quality of the South Coast Highway approach into the Denmark townsite.[11]
[11] Respondent's SIFC dated 11 June 2021, Exhibit 2, para 45.
In Ms Tothill's witness statement she sets out a summary of all the signs within the approved total site signage plan. In evidence she says that whether the additional promotional poster sign results in visual clutter is to be considered in the context of the total site signage plan. The respondent asserts that too much signage onsite can cause visual clutter and when there is too much signage the effectiveness of the signs can be lost, this has a greater impact where the Shire is trying to protect a distinctive character.
The respondent contends that the Shell Service Station already has high exposure to passing traffic and effective signage so the duplication of signage is unnecessary for the purpose of attracting customers to the goods and services available on this site and that the additional promotional poster sign will exacerbate this visual clutter. The respondent says that the development application proposes 37 signs and asserts there is no chance that a passing motorist will miss the service station and argues that the additional or duplicate promotional poster sign will exacerbate the visual clutter, is unnecessary and should be refused.
Ms Harbron in her witness statement refers to the definition of 'clutter' in the Cambridge Dictionary which means 'a lot of objects in a state of being untidy'. She argues that the configuration of the (refused) eastern promotional poster sign together with the (approved) pylon sign and western promotional poster sign, contained within a well-maintained landscaping strip, will not present as being untidy. Rather, she submits that having two promotional poster signs that are identical in terms of size, shape and form will present a coordinated balance to the area.
Ms Harbron in her assessment uses a comparison of the currently installed signage with that previously approved for Caltex on the subject site and concludes that the full extent of signage now proposed on the South Coast Highway frontage of the subject site is reduced in terms of height, vertical dimension advertising area and overall advertising area compared to what was previously approved and installed.[12] On this assessment she considers that it is difficult to see how such signage will now exacerbate the visual clutter of signage to the detriment of streetscape.
[12] Witness statement of Annette Ruth Harbron dated 26 July 2021, Exhibit 7, para 45.
Ms Harbron submits that the applicant is only seeking approval of two promotional poster signs to assist with business identification and because it is not practical to have a second sign on Ocean Beach Road, the second sign should be on South Coast Highway frontage.[13] She also submits that this minimises the potential for a traffic hazard on Ocean Beach Road frontage associated with the Mitre 10 carpark.
[13] Witness statement of Annette Ruth Harbron dated 26 July 2021, Exhibit 7, paras 62-63.
I find that I prefer the evidence of the Ms Tothill that the second promotional poster sign would exacerbate the visual clutter of signage to the detriment of the streetscape for the following reasons.
When considering the eastern promotional poster sign in the context of the total site signage plan the second promotional poster sign adds to and exacerbates the existing visual clutter of signage on the subject site.
LPP 32 provides for on ground signs at a rate of one sign per street frontage and does not contemplate a situation where this may be transferred to provide more than one sign per street frontage and whilst the applicant argues the second promotional poster sign is to provide identification of the business and advertising for the convenience store component of the business, the Tribunal finds that there is sufficient signage on the subject site to provide identification of and advertising for the business operating on the subject site. The applicant submits that the eastern promotional poster sign will be obscured by the western promotional poster sign and pylon sign however, this is only one viewpoint and the sign will be visible from many other viewpoints, thus contributing to the visual clutter in the South Coast Highway streetscape that is not characterised by similar amounts of signage on site used for commercial purposes.
I also find that the proposed eastern promotional poster sign does not perform an additional function but rather duplicates the function of the western promotional poster sign and exacerbates the visual clutter of signage that exists on site. Having heard the evidence of both parties and observed the subject site, I am of the view that there is sufficient signage on site and approved, including the western promotional poster sign, to clearly identify to passing vehicular and pedestrian traffic the nature of the business on the site and as such the additional sign will create undesirable visual clutter that will detract from the character of the locality.
Issue 3 - Whether the promotional poster sign would compromise the required landscaping along the South Coast Highway boundary of the subject site to the detriment of streetscape
Ms Tothill contends that the minor height reduction achieved by reducing the plinth of the promotional poster signs 'will impose a further impediment to landscaping'.[14] In evidence, Ms Tothill was asked to explain this further and responded that by virtue of the height and the dropped plinth level, the signs would be lower to the ground than originally approved and the addition of a third sign within the small landscaping strip would clearly impact on the landscaping abilities within that area, including the height. Ms Tothill asserts that the landscaping will 'need to be maintained to be low as occurs often with landscaping in areas where signage has been approved, to maintain sightlines to that signage it will affect the landscaping'.
[14] Witness statement of Jasmine Anne Tothill dated 26 July 2021, Exhibit 6, para 56.
Ms Harbron argues that this is not substantiated as no specific requirements were imposed on the development approval with respects to the type of landscaping required in this area and considers that it could take the form of 'hard' landscaping being paved areas, retaining walls and paths, 'soft' landscaping being plants, or a combination of the two.[15] She also asserts that the vegetation that has been planted has had due regard to the vehicle dominated environment onsite and immediately offsite such that it does not create a traffic hazard by blocking views for vehicles or pedestrians but rather provides for an attractive and functional streetscape on the western approach to the Denmark townsite.
[15] Witness statement of Annette Ruth Harbron dated 26 July 2021, Exhibit 7, para 52.
The Tribunal is not persuaded by the evidence of Ms Harbron in relation to the detailed requirements for the landscaping not being in Condition 4 of the December 2020 approval meaning that the landscaping can be any height or even hard landscaping as Condition 4 clearly required this information to be provided to the Shire prior to installation of the landscaping and prior to the installation of the approved western promotional poster sign.
Regardless of this, the witnesses gave evidence that the landscaping as installed in the landscaping area is acceptable.
Having considered the evidence of both parties I find the low lying forms of landscaping now planted in the landscaping area on the subject site of the proposed eastern promotional poster sign would not be compromised as long as they are properly maintained by the owner. This does not negate the requirement to comply with Condition 4 and 5 of the December 2020 approval.
Issue 4 - Is there a cogent reason to depart from TPS Policy No 32?
The Shire of Denmark has adopted LPP 32 which states in cl 1.1 of the policy that it is to be read in conjunction with cl 5.30 of the Scheme.
The relevant aim of the LPP 32 states:
1.To guide the design, materials and siting of advertising structures and signs in the shire area that build upon the distinctive character of Denmark.
Objectives relevant to the consideration of the total site signage plan are:
1.To preserve the heritage and landscape values and qualities of Denmark with a diverse economy ranging from rural production, retailing to tourism.
2.To provide relevant information at appropriate locations to guide visitors to businesses and properties.
3.To coordinate the style of signage through the use of components and features to achieve a strong distinct identity.
…
6.To reduce visual clutter, driver confusion, landscape detraction and traffic hazards caused by poor and indiscriminate signage[.]
Clause 1.7 identifies the Shire's main concerns in regard to advertising signage as:
1.7.1visual impact on surrounding land and buildings;
1.7.2visual impact on the streetscape; and
1.7.3visual impact on the overall locality.
Clause 1.8 refers to the following factors the decision-maker will have regard to in considering proposals for new advertising signage and the relevant factors to consider in this application are:
1.8.1 whether a new sign is compatible with any existing signs on the site;
1.8.2 whether a new sign complements or detracts from the dominant character of the surrounding landscape;
1.8.3 whether a new sign complements or detracts from the architectural style and character of the building, site or area;
1.8.4 whether a new sign compromises surrounding land uses due to its size, design, location or the use of illumination or devices such as flashing or moving elements;
1.8.5 whether a new sign may be hazardous to vehicular or pedestrian traffic; and
1.8.7 whether rationalisation or reduction in the number of existing signs is appropriate and achievable.
LPP 32 provides the standards that apply for the assessment of advertising signs and devices including Off Building Signs in Part 11 which identifies the eastern promotional poster sign as an On Ground Sign and the requirements are:
11.2.1This is an advertising sign which is not attached to a building and no portion of this type of sign can be higher than 1.2m above ground level.
…
11.2.3On Ground signs which in the opinion of Council are not portable shall:
•be located wholly within the boundaries of the lot
•have a maximum vertical dimension of 1.2m and a maximum area of 1.0m2
•advertise only products or services available from the lot and
•be limited to a maximum of one sign per street frontage on any one lot.
For the purposes of LPP 32, the refused promotional poster sign is an 'On Ground Sign'. The relevant section of LPP 32 is at cl 11.2 On Ground Signs which states at cl 11.2.1 'this is an advertising sign which is not attached to a building and no portion of the type of sign can be higher than 1.2m above ground level'.
Where an On Ground Sign is considered to be 'non-portable' cl 11.2.3 and cl 11.2.4 set out the following requirements:
11.2.3On Ground signs which in the opinion of Council are not portable shall:
•be located wholly within the boundaries of the lot
•have a maximum vertical dimension of 1.2m and a maximum area of 1.0m2
•advertise only products or services available from the lot and
•be limited to a maximum of one sign per street frontage on any one lot.
11.2.4On Ground signs are permissible in the Commercial, Tourist and Industry Zones[.]
The applicant argued that little or no weight should be given to LPP 32 as it was adopted over 20 years ago. The applicant was questioning the language used and identified possible difficulties with identifying contemporary signs within LPP 32 and therefore contends that the Tribunal should not accord very much weight to the policy as the applicant believes it is outdated. Ms Tothill admitted that LPP 32 had not been reviewed for the last four years while she had been employed by the Shire but could not confirm whether or not the policy was reviewed prior to that four year period. Ms Tothill said in relation to assessing signage against the policy that that she could look at the intent of the policy and interpret which area of the policy applied and that it was still relevant in today's context.
In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR (WA) 119 the Tribunal at [51], adopted the following test:
For a policy to be given weight, it must be tested against the criteria set down in Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1. The test is
a)whether it is based on sound planning principles;
b)where it is public, rather than a secret policy;
c)whether it is a public policy conceived after considerable public discussion;
d)the length of time the policy has been in operation; and
e)whether it has been continuously applied.
The Tribunal considers that the objectives as stated are highly relevant in assessing advertisements and are based on sound town planning principles, as to whether every advertisements on falls within a specific category of the policy is neither here nor there as in this instance the proposed sign clearly falls within On-Ground Signs and the provisions in relation to on ground signs are relevant considerations, therefore the policy should be given some weight in the determination of the application.
The provisions for On-Ground Signs are provided above and this application requires the Tribunal to consider whether to depart from the requirements for limitation to a maximum of one sign per street frontage on any one lot and while the size is not in contention, approval of the sign would also result in a departure from the provision to have a maximum vertical dimension of 1.2 metre and a maximum area of 1.0m2.
Ms Harbron submits that there is a cogent reason to depart from LPP 32 and relies on objectives 2, 3, 4 and 6 of LPP 32. In relation Objective 2 (to provide relevant information at appropriate locations to guide visitors to businesses and properties), Ms Harbron considers that having a sign at each approach to the development aids in guiding visitors to the businesses on site particularly the convenience store, which is not otherwise provided with any signage to advertise its products.[16]
[16] Witness statement of Annette Ruth Harbron dated 26 July 2021, Exhibit 7, para 55.
Her evidence in regard to Objective 30 (to coordinate the style of signage through the use of components and features to achieve a strong distinct identity) is that the eastern promotional poster sign is coordinated and consistent with the remainder of signage recently approved and installed on the subject site thus resulting in a strong identity and improved aesthetic outcome compared to the adult signage which was approved installed as part of the former Caltex Service Station.
Ms Harbron considers in regard to Objective 4 (to establish a standard of type-approved signs to clearly identify businesses), that the approval of the sign on the eastern end of the landscaping area will assist in identifying the two different businesses on site for the traffic approaching the site from the east. I note at this point that no evidence has been provided that the service station and the convenience store are separate businesses.
In regard to Objective 6 (to reduce visual clutter driver confusion, landscape detraction and traffic hazards caused by poor and indiscriminate signage, Ms Harbron argues that the approval of the sign on the eastern end of the landscaping area will reduce any potential for driver confusion and traffic hazards as there will be a balance of convenience store signage at the two vehicle access/egress points to the site rather than a focus on the western end of the landscaping area, which is located close to the Ocean Beach Road and South Coast Highway intersection. She submits that it potentially adds to the driver confusion and traffic hazards at this point if there is only one approved promotional poster sign in this area.
Ms Tothill argues that there is no cogent reason to depart from LPP 32 and approve two promotional poster signs on the South Coast Highway frontage of the site.[17] She asserts that as per the requirements of LPP 32, it is necessary to assess the promotional poster panel signs in the context of the cumulative impact of all signs proposed under the total site signage plan and not in isolation. She considers that this should take into account the visual amenity impacts of the three adjacent signs on the South Coast Highway frontage (including the two promotional poster panel signs and the five metre high pylon/ monolith sign) being those most prominent within the streetscape.
[17] Witness statement of Jasmine Anne Tothill dated 26 July 2021, Exhibit 6, para 36.
Ms Tothill refers to her description of streetscape and locality and submits that commercial signage in this locality remains of a relatively low scale with fixed On Ground signs, panel signs, or pylon signs installed adjacent to the South Coast Highway frontage currently limited to one sign per street frontage. She indicates that there are no examples of other general promotional poster panel signs approved in this locality.
In considering the prevailing streetscape and the future desired character of the townsite, Ms Tothill submits that TPS 3 and the associated local planning policies place an emphasis on the preservation of landscape amenity and character. She asserts that particular regard is given to the South Coast Highway approaches to the town centre and the protection of the open 'village feel' and 'country town' character of the Denmark townsite and she says that in her opinion the decision of the Shire to limit the number of signs on South Coast Highway frontage demonstrates due regard to the TPS 3 and policy requirements. Ms Tothill says that she considers that a variation to the prescribed LPP 32 standards for the purpose of permitting one On Ground sign (promotional poster panel sign) at 1.484 metres high and 0.957 metre wide is reasonable and justified. She submits that she has reached this conclusion as the sign is of lesser size than a pre-existing promotional sign in the same location, and it will enable the consolidation of promotional signage on the subject site to support the convenience store and food premises. She asserts that she can see no other cogent reasons to further depart from LPP 32 requirements.
The respondent asserts the proposal does not provide a reasonable balance between broader amenity impacts for the community and the advertising needs of the business which they duly acknowledge. The respondent says there are no cogent reasons to depart from the policy as the currently approved promotional poster sign exceeds the policy standard both in terms of the maximum area and calculations, height which will be exacerbated by the duplication of the sign if the eastern promotional poster sign is approved; approval of the second promotional sign would exceed the limit of one sign per street frontage on any one lot which is not the Denmark character; the additional promotional sign cannot arguably reduce clutter but, can only increase it; the additional promotional sign would be a further incursion within one of the few unpaved areas of landscaping on the site; and the additional promotional poster sign cannot be said to rationalise or reduce the number of existing signs on site.
As articulated in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24], Barker J held that while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied.
His Honour said that:
… 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 addition, as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182]:
… If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
Having regard to the evidence in relation to whether there is a cogent reason to depart from LPP 32 consideration in this case, I find that I do not accept the Ms Harbron's argument that the eastern promotional poster sign is required for the business needs of the convenience store component of the service station, that it's presence will provide balance to the signage and reduce driver confusion, as cogent reasons to depart from LPP 32.
I find I prefer the evidence of Ms Tothill that the business needs of the convenience store component of the service station can be met by the existing signs approved for the site. It is commonplace for service stations to have a convenience component and the applicant has advised that this is the only convenience goods store open for extended hours in the Denmark townsite. The site has substantial existing signage that forms the context for the proposed eastern promotional poster sign, being that approved and erected in accordance with the December 2020 approval, identifying it as a service station and the installation of the one approved promotional poster sign which does not advertise the business but rather advertises the goods for sale in the business, is not considered to make the business less identifiable. The Tribunal is not persuaded by the argument by the applicant that the extended hours of operation of the convenience store and service station from 5.00am to 9:30pm seven days a week, necessitates additional signage.
Given the Tribunal's above findings in respect to the impact of the proposed sign on the amenity of the streetscape and locality, the proposed sign is not considered to be consistent with the aims and objectives of LPP 32, and in my view, there is no cogent reason to depart from the policy requirements to permit a second promotional poster sign, in the circumstance of this case.
Issue 5 - What weight should be accorded to the principle of consistency in decision-making in the exercise of discretion in the circumstances of this case?
In relation to this issue, the parties have both focussed on the consistency in decision-making through the several proposals on their specific site. The respondent submits that significant weight should be accorded to the principle of consistency in decision-making in the exercise of discretion in this case. The respondent asserts that decisionmaking has been fair and reasoned in applying the policy framework relevant to the signage proposals.
The respondent accepts that a previous decision exercised discretion to approve the two promotional poster signs on the South Coast Highway frontage, however they argue that they were of a smaller size than what is now sought. The respondent contends that the approval of the two smaller signs should not be considered to set a benchmark default for future applications on the site
The applicant argues that the decision-making in relation to the eastern promotional poster sign has not been consistently applied. The applicant contends that the respondent on 16 September 2020 approved the eastern-most promotional poster sign at a height 28.4 centimetres shorter than now proposed in the same location and argues that one additional promotional poster sign in the location previously approved on 16 September 2020 will have no material impact whatsoever on the character and amenity of the locality.
In Tran and Town of Vincent [2009] WASAT 123(S); (2009) 65 SR (WA) 260 the Tribunal observed as follows at [36]:
[I]t is important for the process of orderly public sector decision-making that original decision-makers pay careful attention to consistency in that decision-making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval has been given.
The original approval was for two compliant On Ground signs and the discretion sought to permit the approval of two larger signs requiring the exercise of additional discretion is sufficiently different to warrant consideration on its merits. The Tribunal is satisfied that there has been sufficient change in the circumstances surrounding the case to justify a different conclusion and a contrary decision to that previously made in the original approval by the Shire.
Conclusion
The Tribunal in considering the particular planning merits of this case, does not consider there is sufficient justification to support a departure from the current planning framework. The Tribunal is of the opinion that the approval of a second promotional poster sign is not consistent with the orderly and proper planning of the area and does not accord with the sound planning principles that have been formulated for the locality.
Under s 27(2) of the SAT Act the purpose of the review is 'to produce the correct and preferable decision at the time of the decision upon the review'. Consequently, the function of the Tribunal in these proceedings is to consider the material before it and form its own view, in the exercise of planning discretion, as to whether to permit the eastern promotional poster sign as proposed in the revised proposal and whether that there is a cogent reason or sound basis to depart from LPP 32 in the circumstances of this case. Further, the proposed eastern promotional poster sign is not compatible with its setting, does not result in the rationalisation consolidation or removal of existing advertisements and will result in further visual clutter of South Coast Highway.
Therefore, for the reasons set out above, the Tribunal declines to exercise discretion to vary Condition 1 of the December 2020 approval and the associated annotation on plans, to approve the eastern promotional poster sign.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
17 NOVEMBER 2021
came into effect on 15 February 2021, amended clause 67 of the deemed provisions. However, cl 90(2) of
the amended deemed provisions provides that Pt 8 and Pt 9 made by the Planning Regulations Amendment
Regulations 2020 do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made prior to the commencement day, cl 67 of the 'former deemed provisions' apply in this case.
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