WA BILLBOARDS and CITY OF BELMONT
[2023] WASAT 42
•16 JUNE 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WA BILLBOARDS and CITY OF BELMONT [2023] WASAT 42
MEMBER: MS M CONNOR, MEMBER
HEARD: 16 AND 17 MARCH 2023
DELIVERED : 16 JUNE 2023
FILE NO/S: DR 151 of 2022
BETWEEN: WA BILLBOARDS
Applicant
AND
CITY OF BELMONT
Respondent
Catchwords:
Town planning - Development application - Single sided static billboard sign intended to display third party advertising - Mixed Use zone - Advertisement - Use not listed - Is the proposed land use consistent with the objective of the Mixed Use zone - Compatibility with setting - Amenity impacts - Whether cogent reason to depart from local planning policy - Adverse planning precedent
Legislation:
City of Belmont Local Planning Scheme No 15, cl 3.2, cl 3.3, cl 3.3.1, cl 3.4, cl 3.4.2, cl 4.11.1d), cl 4.21, Sch A
Metropolitan Region Scheme, Pt III, cl 30(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 3, cl 61, cl 66, cl 67(2), cl 67(2)(m), cl 68(2)
Planning and Development Act 2005 (WA), s 252(1), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 27(2)
Result:
Application for review dismissed
Decision of the respondent affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Mr S Robinson |
| Respondent | : | Mr A Bott |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | City of Belmont |
Case(s) referred to in decision(s):
Avalon Sheds and Stables and City of Belmont [2009] WASAT 67
Caratti Holding Co Pty Ltd and City of Belmont [2021] WASAT 105
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96
Claude Neon Ltd v City of Perth (unreported, WA Supreme Court, Kennedy J, 31 July 1987)
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
D and Department for Community Development [2007] WASAT 154
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187
Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
WA Billboards (applicant) seeks review by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the City of Belmont (City, Council or respondent) on 9 August 2022 to refuse to grant development approval for 'additions to Service Station and Fast Food Outlet (Third-Party Advertising and Electric Vehicle Charging Station)' on No 472 (Lot 800) Great Eastern Highway, Ascot (subject land or site).
In these reasons, the Tribunal will firstly describe the subject land, the proposed development, and the applicable legislative framework. The Tribunal will then set out the principal issues for determination in these proceedings and address each of the issues in turn.
For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to refuse to grant development approval for the proposed development.
Subject land
The subject land is more particularly described as Lot 800 on Deposited Plan 413047 being the whole of the land contained in Certificate of Title Volume 2952 Folio 51, and is 6,306m2 in area.
The site is located on the north-eastern corner of Great Eastern Highway and Fauntleroy Avenue, with a frontage of 91 metres and 55 metres to these roads respectively. An 8.3 metre truncation is provided at the intersection of Great Eastern Highway and Fauntleroy Avenue.
Current improvements on the subject land include:
•an Altas fuel full-service outlet which includes dispensing pumps for passenger cars, light vehicles and three banks of Diesel fuel dispensing pumps for heavy vehicles and trucks. The service station also provides prepared meals, fast moving grocery items, hot and cold beverages with seating for up to eight people;
•a Gloria Jean's Drive Through coffee service and a service restaurant that provide a dine-in option with seating available for approximately 12 people.
•a variety of signage including:
(i)one monolith sign close to the intersection of Great Eastern Highway and Fauntleroy Avenue, displaying fuel prices, advertising Atlas Fuel, AdBlue, coffee and Gloria Jean's;
(ii)one balloon sign associated with Gloria Jean's;
(iii)12 signs located on the canopy of the service station advertising Atlas and wholesale fuel;
(iv)one wall sign located on the front façade of the service station building advertising Atlas Fuel;
(v)one wall sign located on the front façade of the service station building advertising Gloria Jean's; and
(vi)seven pylon style signs in close proximity to the petrol bowsers advertsing Altas Fuel and the varying fuel types available for purchase.[1]
[1] Witness Statement of Ms Chantelle Gilbert dated 24 February 2023 (Exhibit 4).
Proposed development
The development application proposes the erection of a single sided static (non-digital) sign with steel supporting posts and frame, intended to display third party advertising (proposed sign).
The signage panel is 3 metres high and 12 metres wide, representing a signage area of 36m2. The plans show the supporting poles are 1.8 metres to the underside of the supporting frame and 200 millimetres above the signage panel, so the total height of the structure is 5 metres.
The sign is proposed to be set back 18.38 metres from Great Eastern Highway and extends back 12.6 metres, parallel with and setback 1 metre off the eastern (side) boundary. The proposed sign will display static or non-digital advertising and will be illuminated at approximately 5000 Lumens.
The application also seeks to install two level 3 (Fast Charge) electric vehicle charging stations. During the final hearing the applicant sought to clarify that the intention was to install one EV charger with two charging outlets,[2] in the two existing car bays located in the southeastern corner of the site (EV charger).
[2] ts 129, 17 March 2023.
Procedural history
On 23 July 2021 the applicant lodged an application with the City seeking development approval under Metropolitan Region Scheme (MRS) and the City of Belmont Local Planning Scheme No 15 (LPS 15 or Scheme) for the proposed development.
The application was advertised, and eight submissions were received raising concerns about light pollution, traffic issues, the size of the proposed sign and its visual impact on the existing and future amenity of locality, non-compliance with local planning policies, the obstruction of view of eastbound traffic along Great Eastern Highway of the existing business on the adjoining lot, and safety concerns relating to the location of the EV charger at a service station.[3]
[3] Respondent's s 24 Bundle of Documents dated 24 November 2022 (Exhibit 3), pages 28 - 46.
The respondent, on 9 August 2022, refused to grant development approval[4] for the proposed development for the following three reasons:
1.The sign is contrary to Objective 3.3 and Development Requirement 6.1.1 of Local Planning Policy No. 12 (LPP 12) as it would advertise services and products that are not available at the site and would constitute third party advertising.
2.The sign is not compatible with its setting or with the amenity of the locality, include the relationship of the signage to the development on adjoining land and on to land in the locality, in terms of the likely effect of the size, orientation and appearance of the sign.
3.By reason of the foregoing matters, approval would set an undesirable precedent.
[4] The footnote attached to the decision states 'This is a development determination issued under the Metropolitan Region Scheme, the City of Belmont Local Planning Scheme No 15 and the Planning and Development (Local Planning Schemes) Regulations 2015 - Schedule 2 - Deemed Provisions: Respondent's s 24 Bundle of Documents dated 24 November 2022 (Exhibit 2), page 49.
On 9 September 2022, the applicant sought review by the Tribunal of the Council's decision to refuse to grant development approval. Although not clearly articulated in the application for review but understood from submissions, the applicant seeks an order that the respondent's decision be set aside and a decision substituted granting development approval, subject to appropriate conditions, to the proposed development.
Planning framework
Metropolitan Region Scheme
The MRS provides that the approval of the 'responsible authority'[5] under the MRS is required for the development of land within areas zoned under Pt III of the MRS. The subject land is zoned 'Urban' in the MRS and abuts 'Primary Regional Road' reservations (PRR) on both its Great Eastern Highway and Fauntleroy Avenue boundaries.
[5] 'Responsible authority' for the purposes of the MRS is the Western Australian Planning Commission or its delegate.
As the proposed development abuts a Category 3 PRR, the application was referred to Main Roads Western Australia (MRWA) for comment. MRWA advised that it had no objection to the proposed development subject to the following conditions being imposed on any development approval:
1.The speed sign located within the Great Eastern Highway road reserve adjacent to Lot 50 (no. 482) is to be relocated by Main Roads at the applicant's expense.
Justification for Condition
The proposed signage is located within the Device Restriction Area (DRA) when assessed against Main Roads' "Policy and Application Guidelines for Advertising Signs within and beyond state road reserves" Appendix A, Figure 1, Diagram 8 "Traffic Sign".
2.The sign must be placed on private property and must not overhang or encroach the Great Eastern Highway road reservation.
3.Any proposed illumination of the sign must not exceed 300cd.m2 (candela per square metre) between sunset and sunrise.
4.The sign must not flash, pulsate or chase.
5.The sign must not contain fluorescent, reflective or retro reflective colours or materials.
Clause 30(1) of the MRS requires the decision-maker, in determining the application to commence development, to have regard to the purpose for which the land is zoned or reserved under the MRS, the orderly and proper planning of the locality and the preservation of amenities of the locality.
Local Planning Scheme
LPS 15 is comprised of the Scheme Text; Scheme Maps; the deemed provisions, (set out in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Sch 2) (deemed provisions), the supplemental provisions to the deemed provisions contained in Sch A of the Scheme and the Scheme Map. To the extent of any inconsistency between a deemed provision with another provision of LPS 15, the deemed provision prevails, and the other provision is, to the extent of the inconsistency, of no effect.[6]
[6] Section 257B(3) of the PD Act.
The parties agree, and the Tribunal concurs, that the proposed sign is an independent use[7] and falls within the defined term of 'Advertisement'[8].
[7] See Claude Neon Ltd v City of Perth (unreported, WA Supreme Court, Kennedy J, 31 July 1987) (Claude Neon Ltd v City of Perth) at 16 held that: … commercial advertising which advertises businesses other than such as are carried out on at the premises constituted an independent use of land and constituted 'use of land for a particular purpose' within the meaning of the relevant planning scheme.
[8] 'Advertisement' as defined in cl 1 of the deemed provisions 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 advertisement; and
(b)any airborne device anchored to any land or building used for the display of advertising; and
(c)any vehicle or trailer or other similar object placed or located so as to serve the purpose of displaying advertising[.]
Further, there is no dispute that the proposed development is not exempted development pursuant to cl 61 of the deemed provisions or Sch A of LPS 15 and as such, development approval is required.
The subject land is zoned 'Mixed Use' under LPS 15. Clause 3.2 of the Scheme sets out the objectives for the zones. The Mixed Use zone is:
… intended to allow for the development of a mix of varied but compatible business uses such as offices, showrooms, amusement centres, eating establishments and appropriate industrial activities which do not generate nuisances detrimental to the amenity of the district or to the health, welfare and safety of residents and workforce. Uses can mix on adjacent lots of land or on the same lot and uses may mix horizontally on the same or separate lots and/or vertically in buildings. Buildings should be of a high standard of architectural design set in pleasant garden surrounds with limited vehicular access from properties to primary roads.
Clause 3.3 of the Scheme makes provisions for a Zoning Table, which pursuant to cl 3.3.1 indicates, subject to the provisions of the Scheme, the permissibility of use in the Scheme area in various zones.
'Advertisement' is not listed as a Use Class in Table One - Zoning Table (Zoning Table) of LPS 15.
Clause 3.4.2 of LPS 15 provides that where any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may:
a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted.
b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures contained in Clause 64 of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2; or
c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
There is no dispute between the parties that the proposed development involves the use of land for a purpose not specifically mentioned in the Zoning Table and as such, cl 3.4.2 of LPS 15 requires a determination be made as to whether or not the proposed land use 'is', 'may be' or 'is not' consistent with the objective of the Mixed Use zone.
Clause 4.21 of LPS 15 provides:
Within the district the following signs and advertising are prohibited and shall not be approved by the local government:
a)roof signs; or
b)any sign, hoarding or advertising device whatsoever which does not comply with any other local law of the local government.
Clause 67(2) of the deemed provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
•the aims and provisions of LPS 3 (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any local planning policy for the Scheme area (subclause (g));
•the compatibility of the proposed development with its setting (subclause (m));
•the amenity of the locality including amongst other matters, the character of the locality (subclause (n));
•any submissions received on the application (subclause (y));
•the comments and submission received from any authority consulted under cl 66 (subclause (za)); and
•any other planning consideration the local government considers appropriate (subclause (zb)).
Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent relied on the following two policies adopted pursuant to cl 3, being:
•City of Belmont Local Planning Policy No. 12 - Advertisement Signs (LPP 12); and
•City of Belmont Local Planning Policy No. 16 - Service Stations (LPP 16).
Pursuant to cl 68(2) of the deemed provisions, the local government (and the Tribunal on review) may determine an application for development by:
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.
Issues
The parties at the commencement of the final hearing agreed that the following issues arise for determination in relation to this matter:
1.Is the land use consistent with the objective of the Mixed Use zone?
2.Is the proposed sign compatible with its setting or the amenity of the locality, including the relationship of the proposed sign to the development on the adjoining land and land in the locality?
3.Is the proposed sign consistent with LPP 12 and if not, is there a cogent reason to depart from the policy?
4.Is the proposed development consistent with LPP 16 and if not, is there a cogent reason to depart from the policy?
5.Would approval of the proposed development set undesirable precedent?
The Tribunal will address each issue in turn.
Is the proposed land use consistent with the objective(s) of the Mixed Use zone?
The parties agree, and the Tribunal concurs, that the proposed sign falls within the defined term 'Advertisement' as contained in cl 1 of the deemed provisions and is a separate and discrete use on the subject land as the proposed sign is intended to display third party advertising.
As previously observed, Advertisement is a use that is not specifically mentioned in the Zoning Table and therefore, pursuant to cl 3.4 of the Scheme requires a determination be made as to whether or not the proposed land use 'is', 'may be' or 'is not' consistent with the objectives of the Mixed Use zone.
The respondent does not argue that the proposed land use is not consistent with the objectives of the Mixed Use zone but submits that Advertisement may be consistent, depending on the circumstances of the application.[9] The evidence given by both planning experts supports this contention.
[9] The development application was advertised for comment by the City from 18 October 2021 to 17 November 2021 inclusive (Exhibit 3 - pages 47-48).
There is no dispute, and the Tribunal is satisfied that Advertisement may be consistent with the objective of the Mixed Use zone and as such the proposed sign can be considered and determined on its substantive merits having due regard to the established planning framework.
Is the proposed sign compatible with its setting or with the amenity of the locality, including the relationship of the proposed sign to the development on the adjoining land and land in the locality?
The respondent contends that the proposed sign is superfluous signage on the site and in conjunction the large 36m2 billboard sign, will add to the visual clutter in a manner that will have an unacceptable impact on the current and future amenity of the locality.[10]
[10] Respondent's Statement of Issues Facts and Contentions dated 24 November 2022 (Exhibit 2).
The applicant asserts that the proposed sign is consistent with people's expectation of where they would see an advertising sign and that the overall scale and size of the proposed sign does not adversely affect the amenity of the immediate surrounds or neighbouring properties or signage.
The compatibility of the development with its setting and the amenity of the locality, including the character of the locality, are matters specified in cl 67(2) of the deemed provisions to which due regard is to be given in the consideration of an application for development approval. In the context of the PD Act, the term 'due regard' has been interpreted to mean that a decision-maker must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96 at [46].
'Amenity' as defined in cl 1 of Sch 2 of the deemed provisions 'means all those factors which combine to form the character of an area and includes the present and likely future amenity'. As articulated by the Tribunal in Sapphire Developments Alliance Pty Ltd and City of Nedlands [2020] WASAT 149 at [38], planning law in relation to the assessment of amenity impact is well settled. The approach adopted is set out in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, where the Town Planning Appeal Tribunal observed at 304 that:
[t]he determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality.
Consistent with the definition of amenity in cl 1 of the deemed provisions, Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116 at [21] also confirmed that an evaluation of amenity should take account of future amenity.
The Tribunal had the benefit of expert evidence from Ms Chantelle Gilbert, a town planner who is employed as the Coordinator Planning Projects for the City, called on behalf of the respondent and Mr Carlo Ricardo Famiano, a town planning consultant, called on behalf of the applicant.
Ms Gilbert identified the locality to be the Mixed Use and Industrial zoned land adjacent to Great Eastern Highway, between Ivy Street and Lilian Grove.[11] However, in oral evidence Ms Gilbert clarified that she had intended to capture the road reservation of Great Eastern Highway within the identified area.[12] Ms Gilbert did not consider the land zoned 'Special Development Precinct and Residential'[13] to form part of the locality. She defined the locality based on 'logical planning boundaries including zoning, reservation, cadastral boundaries and road alignments'.
[11] Annexure 11 Witness Statement of Ms Chantelle Gilbert dated 24 February 2023 (Exhibit 4) paras 31 and 106 and Attachment 11.
[12] ts 103, 16 March 2023.
[13] Comprising the lots east of Lilian Grove on the northern side of Great Eastern Highway up to and excluding the office and warehouse on the lot located on the south-west corner of Great Eastern Highway and Fauntleroy Ave, which is zoned Mixed Use under LPS 15.
Mr Famiano did not agree with the 'locality' as defined by Ms Gilbert and in oral evidence identified the lots fronting onto Great Eastern Highway extending from the Tonkin Highway interchange to Ivy Street as being the extent of the relevant locality[14] because of the nature of the development along this section of Great Eastern Highway, which he characterised as industrial.
[14] ts 84, 16 March 2023.
The Tribunal in Ridgecity Holding Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) considered the concept of locality and observed at [42] as follows:
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case[.]
The Tribunal is not convinced that 'locality' for the purposes of amenity, should be limited to the area as defined by Ms Gilbert, or to the extent delineated by Mr Famiano. The Tribunal considers that the residential land use fronting onto Great Eastern Highway extending from Lilian Grove, which is excluded from Ms Gilbert's locality, should be included as it forms part of the character and visual experience of pedestrians and vehicles travelling along that section of Great Eastern Highway. The Tribunal considers the locality as described by Mr Famiano too broad, in this instance, when viewed in light of the principles set out in Ridgecity.
Ms Gilbert describes the existing amenity of the locality based on her observations from the view she undertook on 14 February 2023. She considers the locality as 'predominantly commercial in nature, containing offices, warehouses and showrooms, with a high number of vehicle movement along Great Eastern Highway'. She also observed that the operations at No 501, 507 and 515 Great Eastern Highway were more consistent with industrial use and activities and that 'the existing businesses within the locality display advertising signage that is associated with the services and products available on the relevant sites', with the exception of No 515 Great Eastern Highway (No 515)[15] which contained a wall sign displaying third party advertising. Additionally, she observed that the existing signage within the locality was primarily in the form of wall, pylon and monolith signs and that street furniture in the road reserve displayed third party advertising. Ms Gilbert in oral evidence confirmed that the wall sign on No 515 and the street furniture on Great Eastern Highway formed part of her assessment of the amenity of the locality.
[15] The Tribunal in Caratti Holding Co Pty Ltd and City of Belmont [2021] WASAT 105 granted development approval for two existing signs that display third party advertising subject to four conditions.
The Tribunal prefers Ms Gilbert's description of the character of the locality as her assessment is more 'fine grained' and Mr Famiano's defined locality is much broader and his characterisation of that locality is general and not fully reflective of the discernible residential land uses on the northern side of Great Eastern Highway.
As to the likely future amenity of the locality, Ms Gilbert, based on knowledge of the City of Belmont's draft Great Eastern Highway Urban Corridor Strategy (June 2018) (Corridor Strategy),[16] 'considers that there is the potential for the subject site and surrounding locality to have a different amenity in the future that is more consistent with a modern expectation of a mixed-use corridor development'.[17]
[16] The Corridor Strategy is intended to provide 'the framework for gradual transformation the Great Eastern Highway Corridor'.
[17] Witness Statement of Ms Chantelle Gilbert dated 24 February 2023 (Exhibit 4).
Mr Famiano during cross-examination acknowledged that there was some potential for redevelopment in accordance with the Corridor Strategy and that the locality is likely to go through a transition period eventually, but he did not envisage the change to be any time soon.
The strategic planning being undertaken for Great Eastern Highway within the municipality to provide for the gradual transformation of this 'Corridor', is in accordance with the State's planning framework which identifies Great Eastern Highway as an 'Urban Corridor'. The subject land is located in Precinct 4, which envisages 'an area of Mixed Employment which will allow light industrial uses to exist, whilst also accommodating a range of appropriate commercial uses'.[18] It is also intended that a range of residential accommodation will be established in this precinct. Whilst the Corridor Strategy is a draft planning document at present, the planning principles embodied in this strategy are being implemented as can be observed generally in the redevelopment occurring along Great Eastern Highway and I find that the amenity of the locality is likely to change in the future, albeit in the long-term, to reflect the planning aspirations found in the draft Corridor Strategy.
[18] Great Eastern Highway Urban Corridor Strategy (June 2018), page 104.
Ms Gilbert submits that the proposed sign will have a detrimental impact on the existing and likely future amenity of the locality for the following reasons. Firstly, it will introduce a large free-standing sign into the locality which is currently devoid of this type of signage and will, in her view, make it a dominant feature on the site and broader streetscape. Secondly, in the context of the 23 advertising signs on the subject land, the addition of a free-standing billboard sign displaying third party advertising is superfluous and will significantly add to visual clutter in the locality. Thirdly, the size of the proposed sign and its proposed location will be visually prominent from the adjoining property at No 484 Great Eastern Highway, Ascot (No 484) and adversely impact the users of that site, as well as, obscuring the view of the building and its associated signage from traffic travelling east along Great Eastern Highway. Fourthly, the sign will be visible to users of the footpath and passing traffic travelling in an eastward direction on Great Eastern Highway, as well as users of the subject land and will have a detrimental impact on the visual amenity from these viewpoints.
Mr Famiano does not consider the locality to have a 'high level of amenity' as in his opinion it is industrial in nature, does not have any sensitive land uses, such as residential, has a road environment that carries a large volume of commercial (heavy haulage) traffic and signage is visually evident. He maintains that given the existing amenity of the locality, the proposed sign will not have an adverse impact due to it being a static sign that 'is well setback from the street and orientated towards the customer of the service station and not Great Eastern Highway'. He accepts that the proposed sign will be visually apparent to pedestrians and drivers travelling in an easterly direction along Great Eastern Highway. However, in the context of the scale of the service station and its setback from the street, together with the other third party signage approved in the area he concludes that the proposed sign will not cause a distraction or affect the visual amenity of drivers or pedestrians and would provide some screening of the 'industrial-type' building and car park on No 484 as viewed from the forecourt of the service station site.
The Tribunal prefers the evidence of Ms Gilbert and considers that the proposed sign will have a deleterious impact on visual amenity of the existing and future amenity of the locality and that the degree of that impact is unacceptable. There will be three areas in the locality that will be impacted by the proposed sign, being the service station site itself, the adjoining property at No 484 and the road environment.
The service station is described by the respondent as 'one of the most iconic designed service stations in the Perth metro area',[19] which was not disputed by the applicant. Clearly, the service station has been designed in accordance with the principles set out in LPP 16 and achieves 'a high standard of architectural design with landmark characteristics' by way of the distinctive canopy elements and the incorporation of the historical industrial façade treatment to the main building. The signage on the site mostly relates to the service station use and is considered to be substantive, and there is a very large balloon sign in the shape of a coffee cup on the Gloria Jean's drive-through. As can be seen from the photographs provided in Ms Gilbert's witness statement[20] and as observed on the view, from the forecourt area the location where the sign is proposed has an openness that enables a view of the buildings on No 484. Due to the size and scale of the proposed sign this view will be obscured, and the proposed sign will be a dominant element in the viewshed to users of the forecourt looking in an easterly direction.
[19] ts 133, 17 March 2023.
[20] Annexure 11, Witness Statement of Ms Chantelle Gilbert dated 24 February 2023 (Exhibit 4).
The proposed sign structure will be observed as a separate element and not part of the integral design of the service station development and will detract from the 'iconic' design of the service station development. Further, the Tribunal accepts Ms Gilbert's evidence that 'in the context of the 23 advertising signs on the subject land, the addition of a freestanding billboard sign displaying third party advertising is superfluous and will significantly add to visual clutter' on the site.
The impact of the proposed sign on No 484 is twofold. Firstly, the view of the buildings and the signage on the building advertising the business operating on No 484 will be obscured from the forecourt of the service station and traffic travelling easterly along Great Eastern Highway. Secondly, due to the size and scale of the proposed sign it will be visually prominent to users of No 484 and will also be a rear view of the sign structure. Clearly, the proposed sign will have a negative visual impact on the existing amenity and potential likely future amenity of No 484 and as such, its relationship with the development on No 484 is not considered to be compatible.
Notwithstanding the proposed sign is setback from Great Eastern Highway, the proposed sign structure together with the advertising content will also be visually prominent to users of the footpath and traffic travelling in an easterly direction along Great Eastern Highway. Further, there will be oblique views of the proposed sign from the south-west corner of the intersection of Great Eastern Highway and Fauntleroy Avenue and traffic travelling west along Great Eastern Highway will also have oblique views of the rear of the sign structure.
The Tribunal accepts that the locality is characterised by a mix of commercial and industrial uses and that signage is prevalent. The evidence of Ms Gilbert, which the Tribunal accepts, is that the signage is mostly pylon signs, wall signs and monolith signs advertising services and products available on the premises/site to which it relates. The Tribunal also acknowledges that third party signage is visually evident in the immediate locality and accepts the evidence of Mr Famiano that the level of distraction from the proposed sign will not jeopardise pedestrian or road safety. With these factors in mind, the Tribunal considers the proposed sign will add to the visual clutter in the locality and further contribute to the erosion of the visual quality of the existing and likely future amenity of the locality and that the degree of impact is unacceptable.
Is the proposed sign consistent with LPP 12 and if not, is there a cogent reason to depart from the policy?
The current iteration of LPP 12 was adopted by the Council on 27 July 2021. The purpose of LPP 12 is to provide guidance on the assessment of advertisement signs within the City that are visible from the public realm. The policy outlines when advertisement signs require development approval and the objectives and standards against which the City will assess applications.
Part 4 of LPP 12 defines the following relevant terms:
Advertisement Sign: Has the same meaning as an 'Advertisement' as defined in the Planning and Development (Local Planning Schemes) Regulations 2015 – Schedule 2- Deemed Provisions.
Third Party Signage: Means any advertisement sign advertising services and products unrelated to the subject site.
The respondent asserts and the applicant accepts that for the purposes of LPP 12 the proposed sign is a 'Billboard Sign', which is defined as:
An advertisement sign fixed to a free-standing structure or building which may include LED components, however, is not classified as a pylon or wall sign.
There is no contest that the proposed sign requires development approval. The applicant did not challenge the respondent's assertion that the proposed sign does not comply with:
•the criterion listed in Column B - Deemed to Comply of Table 1 – Advertisement Sign Requirements (Column B of Table 1) of LPP 12 that 'Billboards are not permitted'; and
•the Development Requirements listed in Pt 6 of LPP 12, which states:
6.1.1Advertisement signs shall only advertise services and products available on the premises to which it relates. Third party advertising is not permitted.
Clause 2.4 of LPP 12 provides that advertisement signs that do not comply with the criteria listed in Column B of Table 1 and the Development Requirements listed in Part 6 will be assessed against the objectives outlined in Part 3 of LPP 12 and if non-compliant with the objectives, are deemed unacceptable and will not be supported unless exceptional circumstances exist.
The objectives of LPP 12 are:
3.1Ensure that advertisement signs are appropriate for their location, relate to the land and/or buildings for which they are placed, and do not adversely impact on the amenity of the surrounding area.
3.2Ensure advertising signage is of a scale appropriate to buildings, lot size and lot frontage/s of the site relevant to the application.
3.3Ensure that advertisement signs only advertise services offered and/or products produced, sold, and/manufactured on the land or building/s related to the approved uses/s taking place.
3.4To ensure that advertisement signs do not pose an unnecessary risk to the safety of people and vehicles by virtue of their location, design, use and function.
3.5To ensure that advertising signs are simple, clear, easy to read and maintained to a high standard.
3.6Protect the cultural heritage significant of particular places and/or areas.
3.7To provide for the rationalisation of signage on properties with multiple advertising requirements.
The respondent contends that the proposed sign does not comply with objectives 3.1, 3.2, 3.3 and 3.7 of LPP 12 and therefore deemed unacceptable and submits that there are no exceptional circumstances that support approval of the proposed sign and no cogent reason to depart from the policy requirements as specified in LPP 12.
The respondent advances the following four arguments in support of their contention. Firstly, the proposed sign does not relate to the land on which it is to be placed as it seeks to display third party advertisements and as such, is considered to be a superfluous sign that will unnecessarily add to the visual clutter and compete with existing signage on the site and the broader area. Secondly, the proposed sign will be visually dominant to users of the site, the adjoining site, vehicles on Great Eastern Highway and pedestrians as it will be located in front of the buildings and sited in a prominent location. Thirdly, the proposed sign is not of a scale appropriate to the service station and Gloria Jean's building on site as it is over a third of the length of the building and 'up to its wall height' and is double the size of the largest freestanding monolith approved on the site and as such, is considered to be of an inappropriate scale to the other buildings on-site. Fourthly, the development does not seek to rationalise existing signage on-site and will result in additional signage that will add to the visual clutter and signage proliferation in a manner that will detract from the visual amenity of the locality.
The applicant submits that the proposed sign is capable of approval under LPS 15 and that there are cogent reasons, in the circumstances of this case, to depart from the strict application of LPP 12, which seeks to prohibit billboard signs and third party advertising.
Firstly, the applicant asserts that the City does not prohibit third party advertising signs in the municipality and points to other third party advertisements attached to community infrastructure, in particular, two bus shelters, a rubbish bin and street directional signs located in the road reserve of Great Eastern Highway in the immediate locality (community infrastructure). Mr Robinson, in his submissions, was highly critical of the City's inconsistent approach to third party advertisement and was at pains to point out the inequity of a policy position that facilitates third party advertising in the public realm under control of the City but is 'not permitted' on private land. The applicant also alluded to the City having a commercial interest to protect its own assets as approval of other third party advertisements may reduce the value of their assets.
Secondly, the applicant asserts that the proposed sign is consistent with other signage in the immediate locality, including the third party advertisement on the adjacent property at No 515 and will not detract from the amenity of the locality.
Thirdly, the applicant submits that the site is not merely a service station but a purpose-built facility which provides a large service station with a convenience store, truck facilities, a café (Gloria Jean's) with drive-through facilities and the proposed sign will complement these uses as the advertising is likely to be integrated and targeted. The applicant asserts that the proposed sign has been appropriately located on site so that it does not obstruct any elements of the service station facility or the signage on No 484; has been setback 18.38 metres from the Great Eastern Highway boundary[21] and is not fully exposed to the street as it is 'screened on several angles by the building on the site itself, as well as the development next door'.[22]
[21] Clause 4.11.1d) of LPS 15 requires a minimum setback of 15 metres to Great Eastern Highway.
[22] ts 76, 16 March 2023.
Fourthly, the installation of the EV charger to be used free of charge by the general public and paid for from a portion of the revenue generated from the proposed sign will be a substantial investment in community infrastructure and provide a community benefit that is currently lacking in the municipality. The applicant submits that the EV charger is compatible with the objectives of the Mixed Use zone as the infrastructure will advance the health of local residents by reducing toxic hydrocarbons emissions.
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 (Marshall) at [182]:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. 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[.]
(Footnotes omitted)
So too, in this matter, having regard to the principles in relation to the application of planning policy, the question that the Tribunal must determine in the exercise of planning discretion is whether there is any cogent reason or sound basis to depart from the application of the planning principles that find expression in LPP 12.
In effect, cl 2.4 of LPP 12 deems as unacceptable Billboard Signs and signs that display third party advertising unless exceptional circumstances exist.
The Tribunal has previously considered the meaning of the expression 'exceptional circumstances' and concluded that for circumstances to be considered 'exceptional' they should be circumstances that are, individually or together, uncommon, unusual, special or out of the ordinary.[23]
[23] cf: Caratti Holding; Avalon Sheds and Stables and City of Belmont [2009] WASAT 67 at [28][29]; D and Department for Community Development [2007] WASAT 154.
The Tribunal is not persuaded that there is an exceptional circumstance or cogent reason to depart from the planning principles embodied in LPP 12 in the circumstances of this case for the following reasons.
Although the applicant is correct in its assertion that the City does not prohibit third party advertisement visible from the public realm as observed by the third party advertisements attached to the community infrastructure referred to in para [68] the historical context around such approval is material. The Tribunal was told that the arrangements the City has with several sign companies for the provision and maintenance of the community infrastructure in return for displaying small advertising on the facilities stems from the late 1980's/early 1990's, prior to the formulation of a local planning policy guiding the assessment of advertisement signs under the local planning scheme. Although the presence of the third party signage on the community infrastructure is a relevant consideration in determining the amenity of the locality and whether the proposed sign will adversely affect the amenity of the locality, the Tribunal does not consider it to be an exceptional circumstance or a cogent reason to depart from the policy requirements of LPP 12.
The applicant's reliance on the Tribunal's decision in the matter of Caratti Holding does not advance the applicant's argument as the factual scenario in these proceedings is distinguishable as that case involved consideration of an application for development of two wall signs displaying third party advertising content located on the external walls of the building since it was erected in the early 1960's. Relevantly, the Tribunal in Caratti Holding at [86] observed as follows:
Because of the substantial length of time the subject site has been used for third party advertising, I find that the circumstances of this application are unlikely to be replicated and, therefore, there is more than a mere chance or possibility that future applications for advertising signs will be distinguishable.
Further, given the Tribunal's findings in respect to the impact of the proposed sign on the existing and likely future amenity of the locality (see [53]-[58]), the proposed sign is considered to be contrary to the objective 3.1 of LPP 12. The Tribunal accepts that there will be some community benefit derived from the installation of an EV charger. However, on balance in the exercise of discretion, the Tribunal does not consider that the community benefit arising from the installation of an EV charger outweighs or offsets the amenity impacts of the proposed sign and as such is not a cogent reason to depart from LPP 12 in this instance.
As indicated earlier, the planning principles that find expression in a relevant planning policy will be departed from where there is a cogent reason or sound basis to do so in the circumstances of the case. The Tribunal, for the reasons explained above, does not consider that there is a cogent and adequate reason to depart from the planning principles expressed in LPP 12 in the circumstances of this case.
Is the proposed development consistent with LPP 16 and if not, is there a cogent reason to depart from the policy?
The current iteration of LPP 16 was adopted by the respondent on 13 October 2020. The purpose of LPP 16 is to provide guidance on the development of service stations within the City. LPP 16 outlines the objectives and standard against which the City will assess service station applications.
There is some question as to whether LPP 16 is a relevant policy in the consideration and determination of this matter. Clause 2.1 and cl 2.2 of LPP 16 set out the instances where the policy applies, which includes all development applications relating to a service station within the City including additions or alterations to an existing service. There is no doubt that the proposed EV charger can be considered an addition to the existing service station and as such, the relevant provisions of LPP 16 have application. However, the proposed sign is a separate and distinct use from the service station use on the subject land (as agreed by the respondent) and although LPP 16 addresses signage it does so in the context of the service station use.[24]
[24] Clause 3.11 of LPP 16.
The respondent did not adduce any evidence or make submissions arguing that the installation of the EV charger is contrary to the principles espoused in LPP 16 and as such, the Tribunal finds that this aspect of the proposed development warrants approval.[25]
[25] Although the Tribunal notes that the installation of the EV charger is contingent on approval being granted for the proposed sign.
The respondent argues that LPP 16 is relevant to the consideration of the proposed sign as the service station on the subject land is a product of this policy and raises matters relating to 'a desire for signage on service stations to give reference to the site and the development on the site'.[26] The respondent submits that 'adding a sign to this development would undermine that policy outcome that achieved' the construction of 'one of the most iconic service stations in the Perth metro area'.[27]
[26] ts 132, 17 March 2023.
[27] ts 133, 17 March 2023.
The Tribunal is not convinced that LPP 16 is directly relevant in the consideration of the proposed sign as the purpose of the policy is to provide guidance on the development of service stations within the City. This development application is for a separate and distinct land use, and as such, is not directly captured by LPP 16. The more relevant local planning policy is LPP 12. However, the principles embodied in LPP 16 concerning the relationship of signage with the architectural features and landmark characteristics of the design of the service station is a matter that falls within cl 67(2)(m) of the deemed provisions and discussed as part of issue 2.
Would approval of the proposed development set an undesirable precedent?
The circumstances in which precedent is a relevant consideration in a planning assessment has been detailed in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74] where the Tribunal found that in order for adverse planning precedent to be a relevant consideration in a planning assessment, the following two criteria must be established:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
Each of these criteria is satisfied in this case. The proposed sign, for the reasons expressed above is not, in itself, unobjectionable.
In considering the second criteria, it is necessary to consider whether there are any sites which are relevantly subject to the same or substantially the same planning framework and have undistinguishable characteristics. Plainly, there are lots in the immediate vicinity of the subject land and in the Mixed Use zone abutting Great Eastern Highway more generally, where a similar type of application to that which is now before the Tribunal could be proposed. I find that there is more than a mere chance or possibility that there may be later undistinguished applications and as such, case, the consideration of adverse planning precedent also warrants refusal of the application.
Conclusion
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 grant development approval to the proposed development.
In considering the substantial merits of this particular case in light of the planning framework and having due regard to the relevant matters specified in cl 67(2) of the deemed provisions, the Tribunal considers the proposed development warrants refusal in the exercise of discretion and as such, the application for review is dismissed and the decision of the respondent dated 9 August 2022 is affirmed.
Orders
For the above reasons, the Tribunal makes the following orders:
The Tribunal 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 M CONNOR, MEMBER
16 JUNE 2023
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