1. The hearing of this matter came before me on 17 September 2009. I indicated to the parties that I had done an inspection of the NAB sign the previous day, including where possible viewing the sign as I walked from Southgate down to the casino on Southbank. Mr Gobbo and Mr Townsend made submissions to me and I received expert town planning evidence from Mr Govenlock and expert design evidence from Mr Holdsworth. As the hearing unfolded, the main emphasis was on the Section 149A Application and the merits review. Hence my findings focus on these aspects and I have merely made simple procedural orders in relation to the enforcement proceedings.
2. I appreciate the extensive preparation done by all concerned in providing me with a very detailed range of information on the planning history of the sign, the key issues involved and the relevant case law, together with a good set of photos. Mr Gobbo very fairly and helpful took me through his client's position and caselaw on the existing use rights issue and Mr Townsend provided a comprehensive submission (I was intrigued by his innovative "two volume" written submission and exotic but useful reference at one point to a latin maxim).
3. Whilst I had not given any liberty for any party to provide me with further correspondence or submissions, after the hearing I received a letter dated 8 October 2009 from Council. It enclosed a signage decision handed down by Member Hewet since my 17 September 2009 hearing of this matter, and some earlier Directions I had made in a 2008 MCC signage appeal. I then gave the Applicant the chance to make any written comments in response.
4. I then received a letter from the Applicant's solicitors dated 12 October 2009. It submitted that the further letter and attachments from Council "...amounts to a submission" and that it had been improper for Council to supply same to the Tribunal without liberty having been given to do so. On this basis, the 12 October 2009 letter urges the Tribunal to disregard the Council 8 October 2009 letter and attachments.
5. As a general rule and provided all parties have the chance to be involved, I do not have a problem per se with a party alerting the Tribunal after the hearing to a change in the planning framework that is relevant to the issues before the Tribunal, without necessarily having been given leave to do so, bearing in mind that the Tribunal must decide a planning appeal based on the applicable law as at the date of the decision. A good example would be a proposed Planning Scheme Amendment relevant to the Tribunal's discretion that was with the Minister but not yet gazetted as at the date of the hearing, that is then gazetted soon after the hearing. However I agree with the Applicant's solicitors that the forwarding to the Tribunal after the hearing (without the Tribunal's prior approval) any further case(s) handed down since the hearing of this matter crosses the line to constituting "further submissions" in an inappropriate manner. Hence I have disregarded the 8 October 2009 Council letter and attachments.
6. I then sought from the parties clarification whether they could provide written confirmation of any further known history of to what extent NAFM occupied as well as owned the building, as both written submissions at the hearing were silent on this issue. The further correspondence from the parties did not take this issue any further forward[2].

1. The key issues I need to address are:
   • Whether or not the contentious sign enjoys existing use rights.
   • If not, whether the sign should be retrospectively granted a planning permit on the merits.
   • Which in turn involves important issues regarding the degree of planning policy support for the proposal, and the merits of its appearance within its riverside setting.
2. In the final result, my overall conclusions are that the sign does not enjoy existing use rights, and that I am unconvinced that it deserves planning approval. Hence I have essentially granted the Declarations sought by Council and affirmed its Notice of Refusal to Grant a Permit. Also see my procedural orders in relation to the enforcement application.

1. Mr Govenlock's report at pages 8-9 provide a pithy overview of the planning framework, which I have set out below.

The site is located in the Capital City Zone - Schedule 1 (Outside the Retail Core). The purpose of this zone is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the municipal Strategic Statement and local planning policies.

To enhance the role of Melbourne's central city as the capital of Victoria and as an area of national and international importance.

To recognise or provide for the use and development of land for specific purposes as identified in a schedule to this zone.

To create through good urban design an attractive, pleasurable, safe and stimulating environment.

Schedule 1 - 'Outside the Retail Core' seeks 'To provide for a range of financial, legal, administrative, cultural, recreational, tourist, entertainment and other uses that complement the capital city function of the locality.'

Pursuant to Clause 37.04-5, a planning permit is required to construct or display a sign unless the schedule to this zone specifies otherwise. The proposed sign is not exempt at Part 5.0 of Schedule 1; therefore a planning permit is required.

Such an application is exempt from the notice and appeal requirements of the scheme.

The site is affected by the Design and Development Overlay (DDOI-A2, DDO1-A3 and DD04) as well as the Special Building Overlay.

The purpose of the Design and Development Overlay is:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To identify areas which are affected by specific requirements relating to the design and built form of new development.

Schedule 1 to this overlay relates to Active Street frontages - Capital City Zone. The design objectives include:

• To ensure ground floor frontages are pedestrian oriented and add interest and vitality to city streets.
• To provide continuity of ground floor shops along streets and lanes within the retail core.
• To ensure ground floor frontages contribute to city safety by providing Fighting and activity.

Pursuant to Clause 43.02-2 a permit is required for all buildings and works unless exempted by the schedule. Pursuant to Clause 43.02-1-3-0 a permit is not required for buildings and works other than at ground level.

Refer to Appendix E for the zoning and overlay plans.

• Clause 11.03-5 - Economic Well-Being
• Clause 12.01 - A More Compact City
• Clause17.01 - Activity Centres
• Clause 19 - Design and Built Form

• Clause 21.05 - City Structure and Built Form
• Clause 21.08 - Local Areas
• Clause 22.01 - Urban Design within the Capital City Zone
• Clause 22.07 - Advertising Signs

• Clause 52.05 - Advertising signs
• Clause 65 - Decision Guidelines

Clause 73 relates to `Outdoor Advertising Terms' and includes the following relevant definitions:

a) on or above the roof of a building, but not a verandah;

1. fixed to the wall of a building and which projects above the wall; or

1. fixed to a structure (not a building) so that part of it is more than 7 metres above the ground.'

'Major promotion sign A sign which is 18 square metres or greater that promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold or for hire on the land or in the building on which the sign is sited'.'

'Internally illuminated A sign illuminated by internal lighting or which contains lights or illuminated tubes arranged as an advertisement.'

1. None of the overlay controls mentioned above have played any particular role in my deliberations.
2. The Planning Scheme definition of "Business identification sign" is as follows.

A sign that provides business identification information about a business or industry on the land where it is displayed. The information may include the name of the business or building, the street number of the business premises, the nature of the business, a business logo or other business identification information.

1. At Appendix F of Mr Govenlock's planning report there is a helpful summary of the Table to Clause 22.07 of the Planning Scheme dealing with a wall/sky sign at over 40 metres in height within the Capital City Zone.

...wall and sky signs with a height above ground of over 40 metres are preferred to be located on the building parapet or painted or fixed directly to the building. In relation to the number of signs per building, one wall sign per building façade is preferred with a maximum of four. In terms of the special comments that are provided for wall and sky signage above 40 metres in height, the following special comments are provided in the table:

• Logos of corporate bodies with naming rights, or major tenants, or name of building are supported in this location.
• Signs to be preferably painted on to the wall.
• Given the high visibility, compatibility with the architecture and the affect on the city skyline is extremely important.
• Animated signs are discouraged.
• Sky signs are discouraged. In exceptional circumstances where such a sign is suitable, the above guidelines contained in this table for sky signs apply.

1. The key role played by Clause 22.07 for our purposes is reinforced by the fact that, apart from the important provisions set out taken from the Clause 22.07 Table, Clause 22.07 also has provisions dealing with particular areas of the municipality. The relevant one here is "Yarra River Environs", in relation to which the following introductory comments are made at page 4 of Clause 22.07:

This applies to the Yarra River between Charles Grimes Bridge and Punt Road. The Yarra River and its environs form the landscape and recreational heart of Melbourne and are its greatest natural asset. Being a key tourist area, it is important that new signs add interest to the area's tourism and arts characteristics.

1. The objective for this precinct is "To enhance the area's attraction for visitors by preserving the visual characteristics and high amenity of public spaces along the Yarra River corridor, the varied and interesting built form and the intensively used promenades".
2. Clause 22.07 also is quite direct in setting out a policy preference that signage located in the Yarra River Corridor:
   • Be limited to that required for business identification purposes.
   • Be strictly controlled with particular sensitivity to parkland and promenade areas.
   • Be unobtrusive and complementary to the scale and character of buildings and landscaped area.

• Panel, promotion, sky and high wall signs are discouraged on buildings visible within the Yarra River Corridor.

1. Clause 52.05 is also important in dealing with advertising signs. Mr Govenlock helpfully states at page 10 of his report that "The primary test for the consideration of major promotion signs at Clause 52.05 is that they "achieve high quality visual standards" in their siting while not being "detrimental to the appearance of their surroundings".
2. The Clause 52.05 provisions curiously include a separate clause dealing with "existing signs" - see Clause 52.05-5. It was unclear to all involved at the hearing before me precisely how it was intended that Clause 52.05-5 be applied vis-à-vis the rights and responsibilities that arise from the generic existing use rights provisions at Clause 63.03. I was told that this is as yet unresolved in terms of previous Tribunal caselaw.

1. Addressing this issue is essentially a three step process, in that:
   • there is a characterisation issue of first clarifying what type of sign has been approved, in terms of the planning permit history;
   • if the answer is "a promotional sky sign", then the second step is establishing whether the "existing use rights" provisions at Clause 63 (or possibly the Clause 52.05-5 provisions) of the Planning Scheme are applicable; and
   • an overall finding can then be made whether or not the NAB sign enjoys existing use rights.
2. If following this process existing use rights are established, then there will be no need to consider the planning merits of whether a permit should now be granted for the NAB sign and logo and vice-versa.
3. I now turn to the first step of resolving what type of sign was approved, having regard to the planning permit history.
4. In relation to the 1980 and the 1988 planning permits, whilst they form part of the chronology of this matter, I consider that neither permit plays any significant role in this "characterisation issue", as:
   • little "characterisation" assistance can be gleaned from the wording of the preamble to these permits; and
   • in relation to the 1988 permit, whilst Condition 2 does include the words "corporate advertising", these words can be interpreted different ways in terms of their scope and the intent involved. For example, the word "corporate" could be used in either a promotional or a business identification capacity. Certainly there is no use here of the words "promotional advertising".
5. In any case, when the whole permit history is viewed holistically in relation to the contentious roof top signage and screening, I am satisfied that the 1991 (as amended) permit which provided for the current NAB sign and logo essentially replaced the earlier permits in terms of the relevant signage and screening and makes the earlier permits largely redundant for our purposes.
6. Focusing instead on the (as amended) Permit No. DP90/0043A dated 18 April 1991, its preamble allows "Alterations to existing roof structure and the erection of a sky sign and roof plant screening in accordance with the attached endorsed plan". The obvious dilemma here is that this preamble does not expressly authorise either a "Business identification sign" or a "Major promotional sky sign" (the definition of these terms are set out above).
7. The amendment to the permit approved on 18 April 1991 amended the description of the endorsed plans and added Condition 8. Condition 8 reads as follows.

This permit shall have no force or effect prior to the following matter having been complied with to the satisfaction of the Responsible Authority:

The owner of the land shall enter into a Section 173 Agreement under the Planning and Environment Act. This agreement shall provide for the removal of the "National" sign and logo hereby authorised within three months of the subject building having been vacated by the National Australia Bank's financial management. This agreement shall run with the land and shall bind successors in title to the property.

1. It is common ground that no Section 173 Agreement was ever signed or registered. Significantly, following some discussion, Mr Townsend conceded that Council was not seeking to rely on the "This permit shall have no force or effect..." proviso in the first paragraph of this condition, keeping in mind the line of previous cases commenting unfavourably on this type of proviso.
2. In relation to the issue of whether NAFM staff occupied the subject building during the period that the 1991 permit was granted but prior to the sale of the building to the current owner, the position is not clear cut. However I am satisfied that it is reasonable for me to infer that NAFM did have a staff presence in the subject building, given that:
   • Condition 8 expressly anticipates NAB financial management staff vacating the premises;
   • it would make sense for NAFM as the owner of the building to utilise the building for its own staff; and
   • Mr Gobbo's verbal submissions to me during the hearing (whilst not overtly dealing with this issue) were consistent with the prospect of NAFM having a staff presence in the building.
3. I am satisfied that when this Condition 8 and the preamble to the Permit No. DP90/0043A are read together, it is implicit that the (as amended) permit was authorising a business identification sign in relation to the NAFM in its capacity at that time as the owner and an occupier of the subject building. This characterisation is in particular supported by:
   • my finding above that I am satisfied that the available information points to NAFM at the relevant time being an occupier of the building;
   • paragraph 120 of Mr Townsend's written submission (which was not in itself contested by the Applicant) which reads as follows.

"By letter dated 6 February 1990, Whiteway Signs applied for planning permission:

To Erect One (1) Only 30750 mm X 6340 mm O/A, Single Faced, Neon and Fluoro Illuminated Business Sign Mounted On Roof for Identification And/or Advertising of Business Within The Premises.

by the then owner of the subject land, National Australia Financial Management Ltd.";

• the fact that the preamble to the DP90/0043A permit makes no reference to "promotional signage";
• Condition 8 being very prescriptive/detailed in spelling out that that a particular sign (ie "...the "National sign and logo"...) needs to be removed within three months of the vacation of a particular occupier of the building (ie "...National Australia Bank's financial management"); and
• the final sentence of the Clause 52.05-1 provisions stating that "If a sign can be interpreted in more than one way, the most restrictive requirement must be met". I regard the characterisation of the NAB sign and logo as a "business identification sign" as being more restrictive (in requiring the on-going staff presence in the building of NAB or a NAB subsidiary) for the purpose of this proviso than a open-ended characterisation of "major promotion sky sign".

1. In my view it is nonsensical to try to reconcile the crystal-clear intent of Condition 8 with the Applicant's preferred view that the DP90/0043A permit was intended to simply allow on-going promotional signage on the roof top. If this was the case, why was Condition 8 included at all?
2. To be clear, I am not relying here on the "breach of permit" aspect of Condition 8, keeping in mind that the Section 173 Agreement was never entered into or registered. I agree with Mr Gobbo that the relevant caselaw[3] indicates that a breach of a permit condition(s) is not enough in itself to extinguish any existing use rights. Rather, I am relying on Condition 8 merely for "characterisation" purposes.
3. To summarise, my findings at this point are that:
   • the key permit for our purposes is the (as amended) permit No. DP90/0043A dated 18 April 1991;
   • that permit should properly be characterised as authorising a business identification sign and logo for the National Australia Bank including its subsidiary businesses, as the then owner and an occupier of the subject building;
   • it is common ground that the NAFM was no longer the owner nor an occupier of the subject building after 14 May 2004;
   • hence even if the Applicant was able to establish that it could rely on the "15 year rule" under Clause 63 of the Planning Scheme, these existing use rights expired by 14 May 2006 pursuant to Clause 63.06

and relying on these reasons, I am satisfied that no existing use rights exist in relation to the NAB sign/logo on the subject building.

1. I do not see Clause 52.05-5 as changing my basic analysis set out above in circumstances where I have characterised the planning permit approval as being for a business identification sign and where it is common ground that NAFM was no longer the owner nor an occupier of the subject building after May 2004. This is consistent with how Mr Gobbo ran the Applicant's case at the hearing, in that:
   • Mr Gobbo dealt extensively with Clause 63 but only touched on Clause 52.05-5 briefly; and
   • my understanding is that there was no suggestion from Mr Gobbo that the provisions of Clause 52.05-5 could override the situation where my "characterisation" finding went against the Applicant.
2. Having made the "characterisation" finding set out above, I am not required to formally deal with "step 2" and "step 3" which I outlined above. However in relation to step 2 of considering whether Clause 63 applies to the display of signage, I make the following passing comments.
3. First, I acknowledge that Mr Gobbo was able to table during the hearing several cases[4] which are at least supportive of the view that Clause 63 of the Planning Scheme can be applied as part of seeking to establish existing use rights for the display of signage.
4. Second, as I said to the parties during the hearing, my reference to Clause 63 in my earlier signage decision of Adrian Valmorbida v Banyule City Council [2005] VCAT 419 is also prima facie supportive of this view but involved a situation where there was no real discussion at that hearing of the relationship between Clause 63 and signage - the issue more arose "on the run".
5. Third, notwithstanding the trend of the significant number of "cases in favour" as referred to above, I think careful thought also needs to be given to whether the draftsperson of Clause 63 necessarily intended Clause 63 to be invoked for the display of advertising signage, given its very unusual mandatory "expiry date" feature. That is, Clause 52.05-1 provides that a permit granted for an advertising sign other than a major promotional sign must expire on the nominated expiry date, or after 15 years in the absence of such a nominated date. Clause 52.05-6 of the Planning Scheme otherwise mandates that a permit for a major promotional sign must include an expiry date of between 10 and 25 years, with the default position being 15 years.
6. Following this "very unusual" line of thinking, query whether there is a net community benefit if advertising signs that are already many years old (and which may have an outdated appearance and/or a less than ideal relationship with their host structure or building) can then have an indefinite life by relying on Clause 63, in contrast to more recently approved advertising signs that have a compulsory expiry date. Mr Townsend's take on this issue was to submit that where Clause 52.05 imposes specific time limits on signage, "...rules of universal application do no detract from those with specific application - generalia specialibus non derogrant and Clause 63 cannot have been intended to apply to advertising signs..."[5] - I think this is a legitimate query to be raising.
7. In relation to the applicability of Clause 63 to the display of signs and for that matter how Clause 63 co-exists with Clause 52.05-6, much as a definitive solution to these thorny issues would be no doubt welcomed by all stakeholders, they are issues to be resolved on another day.

1. Starting with the relevant State planning controls and policies, the key ones here are Clause 52.05 and Clause 19 of the Planning Scheme. I have also considered the relevant purposes of the City Zone Schedule 1.
2. This State level criteria is not surprisingly more general in its application. For example, where Clause 52.05 sets out criteria for considering major promotional signs, it uses more generic criteria such as achieving "... high quality visual standards" together with not being "... detrimental to the appearance of their surroundings".[6]
3. Whilst I consider there is a real debate to be had whether the NAB sign and logo satisfies these more general criteria, I accept that there is no stand-out "knock out point" when same are assessed in isolation against Clause 52.05, the purposes of the City Zone Schedule 1 and the other relevant State planning policy. In reaching this finding, I rely on the useful discussion of this issue at pages 10 and 11 of Mr Govenlock's written report.
4. However this brings me to the more critical issue, of whether the sign has an acceptable level of policy support at a local level. In his report Mr Govenlock states that "In my view, the local policy at Clause 22.07 - Advertising Signs is the key policy for consideration in the assessment of the appropriateness of the sign"[7].
5. I agree with Mr Govenlock that Clause 22.07 is the most important benchmark for assessing the level policy support for the sign, as this policy is much more detailed and specific in terms of how signage is to be assessed in different precincts within the municipality.
6. I have already set out above the description of this precinct, its objective and various specific policy preferences in terms of that part of Clause 22.07 dealing with the "Yarra River Environs".
7. It is very clear that, subject to the proviso discussed below, the proposal is swimming against the tide in terms of the thrust of these Clause 22.07 provisions in relation to the Yarra River Environ area. In particular, the policy preference in this area is that signage be limited to that required for business identification purposes, plus a desire to avoid panel, promotion, pole, sky and high wall signs which are "... visible within the Yarra River corridor" (which clearly is the case here).
8. The Applicant took a more qualified position on this issue, but at paragraph 5 of his written submission Mr Gobbo acknowledged that "There can be no doubt that there is an identifiable plank of the local planning policy framework which seeks to discourage major promotional signage within the Yarra environs".
9. The proviso is that the relevant Clause 22.07 provisions do anticipate exceptions to this general position. If one goes to the Table to Clause 22.07 and reviews those provisions dealing with a wall sign or sky sign at a height of over 40 metres, there are various "Special comments", including that

Sky signs are discouraged. In the exception circumstances where such a sign is suitable, the above guidelines contained in this table for sky signs apply.

1. The key section of Mr Govenlock's report on this issue is at page 12, where he addresses why he supported the NAB sign and logo being granted a permit on the strength of this "exceptional circumstances" aspect of the Appendix to Clause 22.07. This was supported by Mr Gobbo's submissions, but contested by Mr Townsend on behalf of Council.
2. In summary then, I see the key single issue on which this merits appeal turns as being whether or not the applicant has established "exceptional circumstances" so as to still have an appropriate level of planning policy support for the NAB sign and logo.
3. The Tribunal is unconvinced that any such "exceptional circumstances" have been established. On this basis, the Tribunal considers that the proposal has a fatal lack of planning policy support, and should be refused on this basis. In other words, in a situation where the Applicant cannot establish "exceptional circumstances", the proposal then faces the overwhelming obstacle that the relevant Clause 22.07 provisions are seeking to discourage precisely this type of major promotional sky sign within the Yarra River Environs.
4. To flesh out this finding, I have set out below the critical paragraphs from page 12 in Mr Govenlock's report, with the Tribunal's comments in italics.

When assessed against this criteria, the proposal achieves general compliance noting:

• There will be no detrimental impact on the city skyline as a result the sign given the signage already exist on the site, noting the higher building form silhouetted behind the building, and the relationship of the sign to adjoining buildings to the east and west.

Comment - I am not satisfied that there is no "detrimental impact on the city skyline". Given my finding that no existing use rights exist for the NAB sign and logo, it follows that in a merit reviews, no weight can be given to the fact that the sign in reality already exists on the roof-top. With respect to the relationship between the sign and the nearby buildings to the west, north and east, I accept that from some viewing angles the sign is framed by other higher buildings, but it is also the case that there are certain available views where the sign is silhouetted against the sky. In addition, even where the NAB sign and logo is framed by higher buildings further away, in my view it remains the case that the sign still has some degree of visually discordant effect.

• The support structure to the sign serves a dual purpose of screening plant above the building and supporting the sign itself. This structure has a relatively solid appearance and due to the nature of surrounding built form is not a dominant visual element when viewed from key advantage points.

Comment - Whilst I agree that the support structure to the sign is not in itself a major visual problem, I think this misses the point that the support structure is part of the whole package of development that has led to the NAB sign and logo being positioned on its roof-top location. I similarly give little weight to the "dual purpose" line of thinking, as I expect it would be quite straight forward to provide fairly visually innocuous alternative screening if the NAB sign and logo was removed. The point is that a large sign such as the one being reviewed here (with letters, different colours and a well known corporate logo) is inherently much more attention grabbing than a simple visual screen.

* The signage on the facade is limited and the sign forms a minor proportion of the overall building. The offset siting of the sign also limits its perceived width when viewed from key vantage points along the south side of the river corridor.

Comment - In my view it is rather mischievous to compare the area of the sign to the height of the whole building. In a situation where other larger signs in the Melbourne CBD typically are situated at or near the top other buildings, the more relevant question seems "How large is the contentious sign when assessed in its roof-top context?". When assessed this way, I consider that the NAB sign and logo is large enough compared to the host building to be quite visually prominent. In relation to the offsetting of the sign compared to the position of the building, this seems "swings and roundabouts" as this means that the sign is less visible when viewed from directly across the river, but is more visible when viewed from positions further west along the river.

• The sign is compatible with the scale of the host building and of the buildings within the immediate context of the site given the intensity of building form and the other examples of signage within this location and where there is a reasonable expectation for commercial imagery and signage.

Comment - On the one hand, I acknowledge that the image being conveyed by the contentious sign (ie the letters "NAB" and associated logo) are in some ways visually similar to the business identification signage found on the top of many other Melbourne CBD buildings. However, the key difference I see here is that the other business identification signs are consistently placed flush against the wall of the relevant host building, or otherwise incorporated neatly into the design of the roof of the relevant host building eg the IOOF sign. The practical result is that these other business identification signs typically have a "purpose built" type of appearance and are positioned so as to be symmetrical to and fit neatly with the shape of the host building. By contrast, the NAB sign and logo is quite unusual in being sited in a off-set manner on a separate support structure on the roof of the subject building, so that it faces more towards western end of the Southbank area rather than facing directly across the river.

With reliance upon the design evidence of Mr Holdsworth on behalf of Council, I see the practical result as being that the NAB sign and logo very much has a "tacked on afterthought" appearance to it, which is visually jarring, inappropriate and surely the type of outcome which Clause 22.07 is seeking to avoid in this sensitive Yarra River environs. This "tacked on afterthought" appearance is also inconsistent with the policy aim in Clause 22.01 "Urban design in the Capital City Zone" that "Signs should be integrated with the architecture of the building". I am also struggling to see how the layout of the NAB sign and logo is consistent with the policy aim under Clause 22.07 that "Signs should fit within architectural forms and be integrated with the design of the building".

I share the concerns of Mr Holdsworth as set out in the following passages from his written report.

"The sign is visible from many vantage points along the south bank of the Yarra River, from several bridges and from many buildings in the Southbank area, many of which have been constructed since the sign was approved in July 1990. From these viewpoints the sign is seen in the context of both the buildings along Flinders Street and taller buildings beyond, and is prominent because of its size, colours and bold promotional graphics, as well as being an unusual element in this broad view of the southern side of the CBD. From some locations, the sign breaks the skyline[8].

It is evident that the sign...does not fit within the architectural form of the building due to its angled position and the absence of any integration with the design of the building. As new buildings have been constructed to the north and east of the sign, its supporting structure is more visible from upper floors of buildings to the north and north-east.[9]

• The site is subject to planning scheme height controls and I note that the signage does not exceed the height of the building recently constructed to the east.

I consider that little weight can be given to the fact that the site is not subject to express planning scheme height controls. With respect to the relationship between the sign and the nearby buildings, see my comments above.

1. My findings above on the planning merits are consistent with and supported by several previous decisions also involving the Yarra River environs, where the Tribunal rejected a proposed major promotion sky sign.
2. Eye Corp Pty Ltd v City of Melbourne VCAT Ref. 2000/088356 involved a 19 storey office building at 452-470 Flinders Street. It was proposed to install two internally illuminated major promotion signs on the southern elevation and part of the eastern elevation, about 45 metres above ground level. The relevant planning controls were similar. In refusing the proposal, the Tribunal stated as follows - "A further reason for my refusal is that it is contrary to the Council policy at Clause 22.07 of the Yarra River environs - this is in so far as the sign is not limited to that required for business identification purposes. In areas where the express planning intention is to limit the extent and number of signs, the extent and number of promotional signs may need to give way in the interests of business signs providing needed identification of buildings..."[10].
3. A major promotion sign was also refused by the Tribunal in Jewell Partnership v Melbourne City Council [2004] VCAT 2088. The location was a three storey building at 82 Flinders Street in Melbourne. Member Baird found that "...I am persuaded by the Council's submission that the proposed sign would be a dominant and inappropriate element in the streetscape and in this gateway"[11].
4. A floodlit major promotion sign was also considered in the Yarra River environs in David Nettlefield for Power Panels Pty Ltd v Melbourne City Council [2006] VCAT 2264, with the location being 25 Queens Bridge Street. It was proposed to place this sign on the northern side of a six storey building, with the sign to be located about 24 metres above the ground. The Tribunal observed that "The policies for the Yarra River environs are based on the high quality amenity of public spaces along the Yarra and seek for any new signs to add interest to the area's tourism and arts precinct. The policies seek to limit signage - to that required for business identification, to unobtrusive forms as well as signage that is complementary to the scale and character of buildings..."[12]. In rejecting the proposal, it was stated that "The emphasis in the Scheme is on restrained advertising signage associated with the Yarra corridor and important public places. That is part of the amenity achieved in this high quality environment where many views are quite free of signage. I find that the proposed sign would undermine the amenity and experience that has been deliberately pursued and created...[13]"

1. Given my finding above that the proposal has a fatal lack of planning policy support, I do not need to make any formal findings regarding how the Tribunal would assess (ie separate from planning policy issues) the visual appearance and merits of the proposal in its context. However it should be clear enough from my comments above that:
   • I have some major reservations about the appearance of the NAB sign and logo vis-à-vis the other nearby buildings and the typical pattern how business identification signs present on the top of other Melbourne CBD building; and
   • in this regard, I have real sympathy for Mr Holdsworth's design misgivings regarding the appearance of the NAB sign and logo.

1. For the reasons set out above, my main findings have been that:
   • I am unconvinced that existing use rights have been established in relation to the NAB sign and logo;
   • in relation to the merits review of the sign, I have affirmed Council's Notice of Refusal to Grant a Permit; and
   • I have made some simple procedural directions in relation to the third aspect of this whole matter, being the enforcement proceedings.

[1] See page 5 of Mr Govenlock's submission.

[2] See the letter from Darrer Muir Fleiter lawyers dated 11 November 2009 and the Council letter of 17 November 2009.

[3] See DP Gibson's comments at paragraphs 50-54 of Ron Krann v Cardinia SC [2006] VCAT 1629.

[4] See DP Bruce's comments at paragraphs 82-84 of Papas v Whitehorse City Council [1998] 1VPR 76 and Senior Member Byard's discussion of this point at paragraphs 75-77 of Hall v City of Doncaster & Templestowe (1992) 10 AATR 68. Also see Clare v Jeff's Bulk Appliances Pty Ltd [1981] VicRp 72; [1981] VR 758 at the bottom of page 762.

[5] See paragraph 157 of Mr Townsend's submission.

[6] See page 10 of the Urbis planning report.

[7] See the bottom of page 11 of his report.

[8] See section 1.2 of Mr Holdsworth's report.

[9] See the last paragraph of section 2.9 of the report.

[10] See the final paragraph of the Reasons of this decision.