Victorian Civil and Administrative Tribunal|2008-01-16

Australian Slate-Crete Supplies v Casey CC (Red Dot) [2008] VCAT 6 (16 January 2008)

Application to amend permit - When is a separate permit required? - Display of sample products not a sign

Australian Slate-Crete Supplies v Casey CC (Red Dot) [2008] VCAT 6

If the parties consent, an order to further amend permit P876/99 to allow a sign can be made on papers. Otherwise this matter will be listed for a further Practice Day hearing on 29 February 2008.

The primary issue in this case is whether a number of product display boards located outside the factory building on the subject land constitute a display of goods within the meaning of the definition warehouse in the planning scheme or whether they are advertising signs and require a permit under the planning scheme.
A secondary issue relates to the parameters of the provisions of the Planning and Environment Act 1987 enabling the amendment of permits.
This proceeding is an application for review of council's decision to refuse to amend planning permit P876/99 to display two signs in the front landscape strip, one signage board adjoining the wall of the building and two signage boards in two existing car parking spaces, and as a consequence reduce the number of car parking spaces from 10 to 8.
The applicant disputes the council's characterisation of the product display boards as being advertising signage.

Planning permit P876/99[1] allows the "construction of industrial buildings and the use of Factory 1 for the purpose of a store" in accordance with endorsed plans. The plan endorsed under the permit shows provision for 10 parking spaces allocated to the subject land (Factory 11). Condition 12 of the permit requires that the area set aside for car parking on the endorsed plan must be used for that and no other purpose. Condition 13 provides that the area set aside for landscaping must be used for no other purpose. Condition 9 of the permit states:
1. Except for Factory 1, equipment, goods or machinery, whether used in the process of industry carried out on the site or not, must not be stored or allowed to remain on any part of the outside of the buildings on the site.
Australian Slate Crete Supplies has occupied Factory 11 for 6 years. It manufactures and supplies decorative concrete products to the paving industry. It specialises in ornamental concrete paving finishes. This involves stamping patterns into concrete paving. The applicant provides mixes and templates to achieve the required finish. The product display boards in question consist of slabs of concrete displaying various colours and patterns which can be achieved using products supplied by the applicant. They are displayed vertically in substantial frames bolted to the ground, similar to product displays used by brick and paving wholesalers and retailers. According to the applicant, it is important for samples of the finished product to be displayed in the open and in natural light so that a client can compare and assess the colour, texture and pattern.
The subject land is in an Industrial 1 Zone where both industry and warehouse are section 1 uses.[2] A planning permit is required under the zone provisions to construct a building or works. The planning permit and its conditions therefore relate only to construction, not use.[3]

According to Mr McCaffrey on behalf of the applicant:

The nature of the use of the premises is as a wholesale warehouse providing materials to the building trade for the making of ornamental paving for domestic and commercial purposes. The majority of the floor space (80%) is occupied by stored materials either stacked on the floor or on racks and shelves. The balance of the building is occupied by a customer service area which includes a sales counter and display racks containing tools and building supplies. I understand that the operation of the business is almost entirely servicing the building trade.

Warehouse is defined in the planning scheme as follows:

Land used to store or display goods. It may include the distribution and the wholesale selling of the goods.

In my view, the way in which the land is used falls within the definition of warehouse. It is used to store and display goods, and to sell them by wholesale. I therefore find on the facts that the applicant is using the subject land as a warehouse.
I also find that the product display boards do not constitute signs. They are not advertisements but are samples of the products and finishes which can be achieved using products supplied and sold by the applicant. These are products (goods) stored and sold by wholesale from the land. In my view, there is a clear distinction between a sign that promotes goods sold on the land and a display of those goods in sample form. I find that the boards therefore constitute a display of goods within the meaning of the definition of warehouse.
The exception to this finding is the white product information board displayed in the front landscape strip. The white product information board would appear to constitute a promotional sign. It cannot be categorised as a display of goods compared to the colourboard next to it, which shows samples of the products supplied and sold by the applicant. I would therefore not classify the colourboard as a sign, whereas I would so classify the product information board.

WHAT ARE THE IMPLICATIONS OF THESE FINDINGS OF FACT?

On the merits of the case, I consider it is reasonable for the applicant to wish to display the products and the finishes, which its products will achieve, in the open and in natural light. In this type of zone (Industrial 1) I consider it is acceptable for the product display boards to be displayed outside the building. I do not consider that their display will affect the amenity of the neighbourhood where they are presently located except for the colourboard in the front landscape area. I consider that the area for landscaping as shown on the endorsed plans should be used solely for this purpose. I therefore consider that this colourboard should be relocated.
With respect to the white product information board located in the front landscape area, I consider this constitutes a promotional sign. I will provide an opportunity to the applicant to consider whether it wishes to retain this sign or relocate it. The council should then be provided with an opportunity to provide comment on the specific merits of this particular aspect of the proposal.
However, having decided on the merits of the case, the question arises as to whether the current display of the product display boards contravenes any of the conditions of the permit and, if so, whether the permit or endorsed plans require amendment.

The first issue is whether use of two car parking spaces for the product display boards breaches condition 12. In other words, must the area set aside for car parking, as shown on the endorsed plan, be used for the parking of vehicles and for no other purpose?
Ten car parking spaces are shown on the endorsed plan relating to the subject land. Ten spaces are more than the number of spaces required pursuant to clause 52.06 for use of the land for warehouse, which requires only six spaces. At the hearing, the council accepted that the land is being used as a warehouse and consequently that the car parking supply is adequate. Accordingly, it no longer maintains its opposition to amendment of the permit to reduce the number of car parking spaces.
I note that condition 2 of the permit provides as follows:

[2] The layout of the site and the size of the proposed building and works as shown on the endorsed plan must not be altered or modified without the written consent of the responsible authority.

In my view, this condition could be satisfied by either amending the endorsed plans to delete the two car parking spaces occupied by the product display boards or, alternatively, consent could be given to the use of the spaces for product display. In my view, the latter is a simpler and more preferable option than amending the endorsed plans, which relate to a far larger site than just the subject land.

The next issue is the product display board, which is located in the front landscaping area. The council alleges that this breaches condition 13, which provides that the area set aside for landscaping must be used for no other purpose.
The colourboard and white product information board that are located in the front landscaping area were not separately or specifically addressed by either the council or Mr McCaffrey at the hearing. I have already indicated I do not consider that either should be located in the landscaping area. It is not appropriate for the landscaping area to be used for the display of products (goods). I see no reason why the colourboard cannot be relocated either adjacent to the wall of the building next to the display board currently adjoining the wall or to another of the car parking spaces (given the excess number of spaces available). So far as the product information sign is concerned, the applicant should consider where it wishes to re-locate this.

The other issue remaining outstanding is whether the product display boards (wherever located on the site) contravene condition 9, which provides that goods must not be stored or allowed to remain on any part of the outside of the buildings on the site. The difficulty with condition 9 is that it is a condition which relates to the use of land. So far as it relates to the subject land, this is not a permit for the use of land but rather for the construction of buildings and works. It is therefore not an appropriate condition to have been included originally in the permit.
Both industry and warehouse are included as section 1 uses in the Industrial 1 Zone subject to the condition that the use must not adversely affect the amenity of the neighbourhood, including through the "appearance of any stored goods or materials". If this condition is not met, industry and warehouse become a section 2 use. However, as I have noted, this is not a permit for use. The motive for including condition 9 may have been to ensure that the condition relating to amenity, which is applicable to both industry and warehouse, would be complied with. But that does not necessarily make this a valid condition.
The validity of condition 9 was not raised at the hearing. I am therefore reluctant to make a ruling about it without giving parties an opportunity to be heard on this issue. I am also mindful that the permit applies to a much larger site than just Factory 11. It is also probably unnecessary to canvass the issue in any detail because I consider that the issues raised in this case can be addressed by a simple amendment of the permit. Factory 11 should be included as an exception to condition 9 in the same way as Factory 1. I acknowledge that this sidesteps the issue of the validity of this condition, but I do not consider that the nature or magnitude of the issues involved with this case justify involving all the other owners and occupiers of the land affected by the permit in order to resolve the question.

The final issue to be determined is whether the permit can be amended to include permission for a sign or whether a fresh planning permit application is required. This issue was flagged in the hearing notice sent out by the Tribunal, although neither party addressed it at the hearing.
In my view, a distinction must be drawn between amendment of a permit, including what the permit allows, which is made under Division 1A or Division 3 of Part 4 of the Planning and Environment Act 1987, and what may be done by way of secondary consent pursuant to a condition of a permit.
The parameters of secondary consent were set out in Westpoint Corporation Pty Ltd v Moreland CC[4] and affirmed in Zuzek v Boroondara CC[5]. An important constraint on the exercise of secondary consent is that it cannot authorise something for which primary consent is required under the planning scheme.
The amendment of permits under Division 1A of Part 4 of the Act is not subject to this constraint. Section 73 involves a process for the amendment of permits that is the same as the process for an application for permit. It involves a formal application, referral and notice, and the prospect of third party objections and rights of review. In these circumstances, there would be no benefit gained by saying that you cannot apply to amend a permit to include an additional permission for which primary consent is required under the planning scheme (such as a sign) or to modify the details of what the permit allows, but must instead make an application for a new permit. This would defeat one of the advantages of the permit amendment process in Division 1A, which is to avoid the proliferation of permits for individual sites governing what is essentially the same, ongoing use and/or development. It only creates uncertainty and confusion when multiple permits for the same site are issued over time as circumstances change, a use evolves, new signs are added, hours of operation change or alterations and additions to buildings and works are carried out. The ability to amend a single permit by means of a transparent, structured process with proper notice to affected people, represents a major improvement to the planning permit system introduced by Division 1A.
It is essential that this amendment process extends to what the permit allows and that additional primary permissions required under the planning scheme can be added. However, there are limits to this. The process of amending a permit would stop short of allowing a transformation. In this respect, the principle of Addicoat v Fox (No 2) remains relevant - "changes made may be considerable without necessarily bringing it about that the permit granted is a different as opposed to a modified permit."[6] Thus for a completely new or unrelated use or development, I consider that the proper procedure is to apply for a new permit rather than applying to amend an existing permit in such a way that would result in a different permit as distinct from modified permit.[7]
In the present case, to the extent that a separate permission is required for a sign to authorise the product information board, I consider that the existing permit can be amended to allow this. The sign relates to the current use of the land. It is not necessary for a fresh permit to be applied for.
I will therefore direct that the applicant must provide details of whether it intends to remove or relocate the product information board presently located in the front landscape area. The council will have time to provide comments. If this aspect can be resolved by agreement, I will make a further order on the papers. If not, I will list the matter for a further Practice Day hearing.

[2] The land is also in a Development Plan Overlay (Schedule 8) and Development Contributions Plan Overlay (Schedule 7) under the Casey Planning Scheme, but these controls are not relevant for the purpose of this application.

[3] The exception is use of Factory 1 for the purpose of a store. The definition of warehouse includes store. As warehouse is a section 1 use, it is unclear why a permit for use for the purpose of store was required. However, this aspect of the permit is not relevant to the subject land (Factory 11) or to the present case.

[7] My comments about the amendment of permits under Division 1A apply equally to amendments under Division 3 applied for by the permit holder. Each process is similar in that it allows procedural fairness to be accorded to affected persons. It would be inequitable, not to say highly confusing, if a different approach was to be taken and different outcomes were to arise depending on whether a permit had been issued at the direction of the Tribunal or not.

Australian Slate-Crete Supplies v Casey CC

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Australian Slate-Crete Supplies v Casey CC (Red Dot) [2008] VCAT 6 (16 January 2008)

Parties