City of Melbourne issues building permit for "redevelopment of existing sign" (Melbourne Certification Group).

Site lease agreement between Sohrab Pty Ltd as Lessor and Australian Posters Pty Ltd as Lessee for that portion of the building comprising "the entire roof area" for five years commencing 1 April 1995 and a five year option.

(Renewed Lease dated 1 April 2000 between Sohrab Pty Ltd and Cody Outdoor Advertising Pty Ltd with option for further term of 60 months (5 years).)

(Further Lease agreement 21 December 2004 between Sohrab Pty Ltd and Cody Outdoor Advertising Pty Ltd for five year term commencing 1 April 2005 with option for further term of five years.)

(Further outdoor advertising Lease made 25 March 2010 between Sohrab Pty Ltd and APN Outdoor (Trading) Pty Ltd for five year term commencing 1 April 2010 with option for further term of five years.)

Interim time expiry control introduced for all signs, specifying 4 year expiry period, understood to be in the then clause 7.6 of the State section of planning schemes.

Amendment S51

Amendment S83 gazetted allowing signs of more than 18sqm approved between 19 September 1995 and 18 September 1997 to be displayed until 18 September 2007 by changing Clause 7-6.2 of the State planning section of all Victorian Planning Schemes.

New format Melbourne Planning Scheme comes into effect allowing the continued display of major promotion signs approved between 19 September 1993 and 18 September 1997 to be displayed until 18 September 2007 (VPP clause 52.05-5).

Amendment VC45 gazetted, allowing an extension of time for the display of major promotion signs approved between 19 September 1993 and 18 September 1997 until 19 September 2008, and to be further reviewed on receipt of Advertising Signs Advisory Committee Report.

Advertising Signs Advisory Committee Report received by Minister for Planning (not released to the public until September 2008).

Amendment VC49 gazetted, allowing an extension of time for the display of major promotion signs approved between 19 September 1995 and 18 September 1997 until 31 December 2008. The Explanation Statement included acknowledgement that the previous 1993 date included as part of the new format planning schemes and VC45 were incorrect and rectified the error.

Melbourne Planning Scheme Amendment C147 gazetted, adding the site to the clause 52.03 schedule with an incorporated document Major Promotion Signs 2008. These provided a further extension of time (until 31 March 2009) for an application to be lodged for the continued display of each of three existing major promotion signs in the municipality, despite the advertising sign controls applying in the Mixed use Zone.

Application for Certificate of Compliance made to City of Melbourne.

Application for Planning Permit made to City of Melbourne (TP-2009-204).

Notice of Refusal to Grant a Permit issued by Council in Application TP-2009-204.

Letter from City of Melbourne indicating that the sign displayed on the site is prohibited, in response to the application for a Certificate of Compliance.

• Section 77 (Refusal to grant planning permit);
• Section 149A (Planning and Environment Act 1987) and Section 124 (Victorian Civil & Administrative Tribunal Act 1998) application for declaration;
• Section 97P (Refusal of Certificate of Compliance).

1. The plans to be endorsed and which will then form part of the permit are the plans submitted with the application.

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

3. The location, size, material of construction and degree of illumination of the signs shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

1. Dazzle or distract drivers due to its colouring.
2. Be able to be mistaken for a traffic signal because it has, for example, red circles, octagons, crosses or triangles.

1. Be able to be mistaken as an instruction to drivers.

1. The signs hereby permitted must not be animated or contain any flashing light.

2. This permit will expire 5 years from the date of its issue, at which time the sign and all supporting structures must be removed and the site made good to the satisfaction of the Responsible Authority.

[1] In particular application P2298/2007 under section 77 of the Planning and Environment Act 1987 against the council's refusal to grant a permit for the signs.

[5] Clause 52.05-6 and the incorporated document under the schedule to clause 52.03

[6] Planning permit No 2305 issued on 17 December 1982

[7] Gant v Greater Geelong CC [2003] VCAT 2037

[8] Clause 32.04-8 Melbourne Planning Scheme

[9] Clause 52.04-9 Melbourne Planning Scheme

[10] Clause 52.05-1 Melbourne Planning Scheme

[11] The reasons for these provisions and the relevant dates are not pertinent to this decision. They relate to the history of planning controls over the expiry of permits for advertising signs, which is detailed in the chronology in Appendix A.

[12] See Asia Pacific Hotels Pty Ltd v Melbourne CC [2009] VCAT 2492 at [38]

[15] (1992) 10 AATR 68

[16] (1995) 15 AATR 341

[17] For example, I do not consider it is relevant to rely upon the findings of the Supreme Court in Clare v Jeff's Bulk Appliances Pty Ltd [1981] VR 759 (as Deputy President Bruce did in Papas) that the display of advertising for the product sold at a shop as being part of the "shop" use for the purpose of non-conforming use rights compared to "advertising for its own sake", which was unassociated with the retail trading of the store. Control over signs and advertising has changed considerably since this case was decided. What was said in that case about the characterisation of signs was said in the context of the planning controls as they then existed.

[18] As its name indicates, the User Guide provides guidance about the effect of the planning scheme. Clause 71 of the scheme provides that a term in the planning scheme has its ordinary meaning unless that term is defined in the planning scheme. If the term is defined in the Planning and Environment Act 1987, the term has the meaning given in that Act unless it is defined differently in the scheme.

[19] Section 3(1) Planning and Environment Act 1987

[20] (1992) 10 AATR 68 at 77

[21] (1992) 10 AATR 68 at 78

[22] Section 1 Planning and Environment Act 1987

[23] Macquarie Dictionary Fourth Edition

[24] (1992) 10 AATR 68 at 76

[25] (1992) 10 AATR 68 at 77

[26] Planning Permit No 2305 issued on 17 December 1982

[28] [1981] VicRp 72; [1981] VR 758 at 762

[29] " Development " in relation to land means the construction of any building or works on over or under the land and includes and for the purposes of this Act or any corresponding previous enactment shall be deemed always to have included the subdivision of the land and the verb " to develop " has a corresponding interpretation.

[31] Characterisation of the use of land will always turn on the facts and circumstances of the individual case. Cascone v City of Whittlesea (1993) 11 AATR 175

[32] This contrasts with earlier planning scheme requirements where a separate permit was required for construction of a sign in addition to exhibition or display of a sign.

[34] Clause 52.05-6 provides that a permit for a major promotion sign must have an expiry date of 15 years from the date of issue. There is an opportunity to specify an alternative expiry date of not less than 10 years or more than 25 years. The incorporated document allows a permit to specify an expiry date other than 15 years, but it must not be more than 25 years. I interpret this to allow me to grant a permit for a lesser period of 5 years.