1 The signage as shown on the endorsed plans, including the type and intensity of internal illumination must not be altered or modified without the prior consent of the Responsible Authority.

2 The signage including its structure and advertising material therein, as shown on the endorsed plan shall at all times be maintained in good order and condition to the satisfaction of the Responsible Authority.

3 The sign hereby permitted shall not be animated or contain any flashing light.

4 The time for the commencement of the development hereby authorised is, pursuant to Section 68(1) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion is specified as 2 years from the date of such commencement.

The time within which the development is to be commenced or completed may on application made before or within 3 months after the expiry date of this permit be extended by the Responsible Authority.

5 This permit will expire 10 years from the date of issue of the permit.

Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987 the Responsible Authority is directed to issue a permit in accordance with this determination.

Ms M. Wood represented the East Melbourne Group Inc, an objector.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

1 The review site is situated on the northern side of Wellington Parade, East Melbourne just east of its intersection with Powlett Street. It supports a seven storey office building in an area comprising a mix of commercial, institutional and residential buildings. The site lies opposite the Jolimont Station and the railway line. Further to the south is Yarra Park and the Melbourne Cricket Ground.

2 The applicant seeks a permit to construct and display a major promotional sign on the west facing wall of the building. In its written submission the Responsible Authority supplied the following details:

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Display of an internally illuminated promotional high wall sign on the west façade of the existing building.

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The sign will comprise a single advertising panel some 11.2m high by 6m wide for an overall area of 67.2sqm. Total advertising area is 10m by 6m (60sqm).

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The sign will be elevated 11m above pavement level, extending to a maximum height of 22.2m above pavement level.

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The sign will protrude out 1m from the wall into the airspace above the adjacent building to the west.

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The sign is to be positioned in the top right hand corner of the western façade of the building.

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The sign is to be internally illuminated.

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The sign has been designed to be most visible to vehicles eastbound on Wellington Parade.

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The sign will also be highly visible from the south side of Wellington Parade which often attracts large numbers of pedestrians particularly when events are scheduled for the MCG.

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Advertising space will be devoted to the display of commercial promotional advertising material.

3 The application was advertised and attracted 21 objections. In reporting to the Council, the Officer summarised the grounds of objection as follows:

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Adversely affect the character and appearance of the East Melbourne and Jolimont Heritage Precinct.

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Visually intrusive and would pollute East Melbourne by being an overly dominant visual element.

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Contrary to the Melbourne Planning Scheme.

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Dominate the amenity of the area adversely impacting upon the Wellington Parade area and Yarra Park and Fitzroy Gardens.

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The light from the sign would affect nearby residential properties.

4 On 22 September 2005 the Responsible Authority issued a Notice of Refusal based on the following grounds:

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The proposed sign would detract from the appearance and character of the streetscape and locality.

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The proposed major promotion sign is inappropriate for a Heritage Overlay area and would detract from the significance of the heritage place.

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The proposed sign is overly large, not suitably proportioned or positioned and would dominate the host building.

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The proposed sign, by virtue of its size, location and prominent position represents a significant visual intrusion and would be detrimental to the amenity of the surrounding area.

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The proposed sign fails to meet applicable SPPF and LPPF objectives and is not consistent with Clauses 19.03, 22.05, 22.07 and 52.05 of the Melbourne Planning Scheme.

5 The applicant now seeks a review of the Council's decision.

6 On the hearing Mr Dietrich, a Town Planning Consultant, represented the Responsible Authority and he tabled and read a written submission. Mr Gobbo QC appeared on behalf of the Applicant for Review. He made oral submissions and called evidence of Mr S McGurn, a Town Planning Consultant, and Mr J Griggs, an Architect and Conservation Consultant. Mrs Wood represented the East Melbourne Group Inc. who had objected to the proposal. Mrs Wood tabled and read a written submission. Mr O'Hare, a resident in the apartment building situated at No. 1 Powlett Street, also objected to the proposal. Mr O'Hare made oral submissions.

7 Following the hearing the Tribunal inspected the area surrounding the review site. In coming to its decision the Tribunal has had careful regard to all the submissions put to it at the hearing. It also gave consideration to a written objection lodged by Mr & Mrs C Trethowan who also reside in the apartment complex at No. 1 Powlett Street.

8 It needs to be said at the outset that there is an obvious conflict between the planning controls as they pertain to this application. Those opposing the proposal contended that the proposal "clearly conflicted" with the applicable controls. However, this assertion is founded on a selective reading of the scheme. It is the Tribunal's task to make a balanced assessment of this application having regard to all relevant controls, not merely those relating to heritage issues.

9 As Mr McGurn pointed out, the site is situated in a Business 1 Zone, as indeed is the apartment complex situated at No. 1 Powlett Street. Pursuant to Clause 52.01 of the Scheme, the site is therefore in Category 1 in relation to controls over advertising signage. This category advocates "minimal limitations" and has as its purpose:

To provide for identification and promotion signs that add vitality and colour to business areas. (The Tribunal's emphasis).

10 This policy must be balanced against various provisions of Clause 22, a clause much relied upon by those opposing the proposal. In particular, Clause 22.07 requires that proposals must be assessed against the following criteria:

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Signs should respect the building style and scale and the character of the street.

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Signs should fit within architectural forms and be integrated with the design of the building.

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Signs should not obscure architectural features of buildings, including windows.

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Wall or fascia signs should be applied directly to the building or on a flush mounted panel with minimum projection.

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Signs should not cause visual clutter. Existing signs on a building or site will be taken into account when assessing new proposals.

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An integrated approach should be taken to the provision of signage on buildings with more than one occupancy.

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Where a building is occupied by more than one business, adequate space should be made available for all occupancies to display signage.

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Signs should not interrupt important views and vistas along roads leading to and out of the Central City.

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Views of the sign from all angles should be considered and the supporting structure should be designed with this in mind.

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Promotion, panel and sky signs are discouraged.

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Illumination should be concealed within, or integral to the sign through use of neon or an internally lit box or by sensitively designed external spot-lighting.

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Cabling to signs should be concealed.

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Signs and their support should allow adequate clearance for the servicing requirements of streets and lanes.

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The design and location of new signs should respect the cultural heritage significance, character and appearance of the heritage place.

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Signs which are attached to or form part of a building (including painted signs) and which contribute to the cultural heritage significance of the place should be retained.

11 It is important to note that promotional signage, although "discouraged", is not prohibited in heritage areas. Rather the planning scheme envisages that a careful assessment of any such application must be undertaken. That assessment must ascertain whether or not the heritage assets that the Overlay seeks to protect will be threatened or damaged should the proposal proceed.

12 It was Mr Briggs' evidence that the heritage assets of East Melbourne would not be damaged by allowing the proposed sign. Mr Briggs pointed out that the building was not graded and was situated in a Level 3 streetscape, the lowest designation possible in an area covered by a Heritage Overlay. Indeed, Mr Briggs suggested that Wellington Parade could be removed from the Heritage Overlay controls without in any way jeopardising the undoubted quality of East Melbourne's heritage assets. He concluded as follows:

The proposed sign may be visible in juxtaposition in the view to No. 10 Powlett Street when viewed from the west side of Powlett Street. Whilst the proposed sign will be more attracting of attention that would be the existing blank wall, the positions from which the sign may be distracting from a heritage asset are in my opinion sufficiently limited to have no affect upon the significance of the wider heritage place. From the view in Powlett Street any visible portion of the sign would be separated from the heritage asset by the corner building.

In my assessment the sign would be sufficiently remote to have little if any disruptive affect upon the visual appreciation of No. 10 Powlett Street. Whilst it is unusual to contemplate prominent additions to heritage places where they are intended to attract attention, in this case and this particular context the attention will not be attracted away from a significant heritage presence. In the particular context it is my view that the proposed sign is not contrary to the decision guidelines of the Heritage Overlay and I recommend approval.

13 It is interesting to compare Mr Briggs' assessment with that relied upon by the Council. The application was referred to the Council's Heritage Adviser, Mr Bryce Raworth, who stated in a memorandum to the Planning Officers:

It has been standard practice to discourage major promotional signs in heritage overlay areas. In my experience this has been the case even when the host building is a non contributory element. While it can be argued that the host building itself detracts from the heritage overlay, the addition of a 60sqm sign can only further detract from the remnant historic qualities (as seen from Wellington Parade at least).

14 The "standard practice" of the Council, to which Mr Raworth refers, suggests that it has not necessarily approached applications of this kind with an open mind. The Tribunal is reminded of the words of the court in R v Torquay Licensing Justices ex parte Brockman (1951) 2KB 784 at 789:

The Justices can not make a rule to be applied in every case when hearing it. They may lay down for themselves a general rule but are bound to consider whether it is applicable to any particular case.

15 In any event Mr Raworth was not available to give evidence to the Tribunal and hence it was unable to pursue whether or not a prohibitionist attitude had permeated into the previous decisions.

16 The photographic evidence provided by Mr McGurn, (which the Tribunal confirmed on inspection) indicates that views to the sign from Powlett Street will be almost negligible. From the eastern side, the sign will not be visible at all. From the western side, glimpses would be available only from positions close to the corner, and then at a distance and across intervening buildings. The planning scheme does not require that signage be invisible. In the Tribunal's opinion, the views available will do no more than confirm that there is a commercial precinct at the end of the area affected by the Heritage Overlay. It cannot reasonably be said that any heritage asset would be prejudiced by the display of this promotional sign. In this regard the Tribunal accepts the evidence of Mr Briggs. The existing blank, unarticulated wall is unattractive and makes no contribution at all to the appearance of the area. Given that there is no similar signage in the vicinity, a promotional sign cannot be said to add to "visual clutter". Rather, it will add visual interest to a wall of a building which is clearly commercial in nature.

17 It must also be emphasised that views to the wall in question from the public realm are extremely limited. Travelling in an easterly direction along Wellington Parade, the sign will not become visible until very close to the site. Glimpses available from pedestrians in Yarra Park will be filtered by trees. Only pedestrians walking along the southern side of Wellington Parade would have an unimpeded view. The limited views from Powlett Street have already been discussed. Indeed, the views available to the sign are so constrained that the Tribunal wonders whether it would be commercially effective. That question, however, is not one of the criterion called up by the planning scheme.

18 The Tribunal turns next to the concerns expressed by occupants of the apartment building at No. 1 Powlett Street. The principal objection was that the sign would be intrusive, particularly due to its illumination at night. It was also suggested that the sign would interfere with views to the eastern suburbs which lie behind the host building.

19 The apartment building in question rises to a height of 12 storeys and is situated at the corner of Wellington Parade and Powlett Street. Wellington Parade is situated in a Business 1 Zone. Occupants of a building situated in such a Zone cannot expect the same level of visual amenity that might be anticipated in the heart of a Residential Zone. There is an inevitable

trade-off between on the one hand, the locational advantages enjoyed by residents of the apartment building and the noise, bustle, traffic and visual appearance associated with a commercial area. The mere fact that signage will be "visible" from various apartments (at a distance varying between 60m and 70m) is not a sufficient reason to require that the permit be refused. The planning controls do not seek to protect views available from privately owned land.

20 As to the concerns expressed regarding the illumination of the sign, it has long been acknowledged that spillage of light from signs such as this is minimal. The applicant does not oppose the Council's suggested condition that the sign must not be animated or contain any flashing light. Again, having regard to the separation distance involved, a static light source will not disrupt the amenity of the apartment's occupants.

21 It remains to deal with Council's third ground of refusal, namely, that the sign was overly large and would dominate the western wall of the subject building.

22 The sign is to be positioned at the top of the wall and at a point which is closest to Wellington Parade. According to Mr McGurn's assessment, it would occupy approximately 23% of the visible portion of the wall. This is clearly not an "excessive proportion". A very large expanse of wall will remain, and the sign will not dominate the building as suggested by the Responsible Authority.

23 In summary, the Tribunal has come to the conclusion that the grounds of refusal and objection have not been made out. Its findings can be summarised as follows:

1

Signage of this kind is clearly contemplated within the Business 1 Zone, particularly given that the site is situated in a Category 1 Area where there is "minimal limitation" on signage.

2

The sign will have no impact on the heritage assets of East Melbourne.

3

While the sign will be visible to some of the occupants of the apartment building at No. 1 Powlett Street, it will not cause an unreasonable loss of amenity having regard to the separation distance involved and the zoning of the land.

4

The size of the sign is not disproportionate to the size of the wall of the host building.

5

When assessed against the totality of the planning controls called up by the planning scheme, there is insufficient justification for refusing to grant a permit.

24 It follows then that the Tribunal will order that a permit issue in accordance with the conditions advanced by the Responsible Authority, and which were not opposed by the applicant for review.