Victorian Civil and Administrative Tribunal|1999-01-15

Boydell Pty Ltd v Yarra CC & Ors [1998] VCAT 564 (15 January 1999)

APPEAL NO. 1997/00708 APPLICATION NO. 96/1332

Respondent/Permit Applicants Illuminated Sales & Display

Application under S.14 of the Planning Appeals Act 1980 (PA Act) for a Declaration.

"The existing use and development of the first floor west wall of the building situated at 30-32 Swan Street, Richmond ("the land") for the purpose of promotion sign as defined in clause 2-1.3 of the State Section of the Yarra Planning Scheme:

(a) is a purpose for which the land was being lawfully used and developed immediately before the coming into operation of the Yarra Planning Scheme; and

(b) has been used and developed continuously for such purpose since the coming into operation of the Yarra Planning Scheme; and

(c) is a use and development of the land for which a permit is not required pursuant to the Yarra Planning Scheme; and

(d) any such other declaration or declarations that the Tribunal may see fit to make."

30-32 Swan Street is the land in Certificate of Title Volume 8746 Folio 670.

26-28 Swan Street at the south-eastern corner of the intersection of Swan Street with Wellington Street with a frontage of 15.24m to the south side of Swan Street, a side abuttal of 15.74m to the east side of Wellington Street and an area of 232.25m2.

30-32 Swan Street with a frontage of 7.92m to the south side of Swan Street commencing approximately 15.3m east of its intersection with Wellington Street and having a depth of 30.58m and an area of 46.45m.

Proposed Main Road Reservation under the Yarra Planning Scheme.

"1. The proposed sign will be detrimental to the amenity of the area.

2. The proposed sign will have a detrimental effect on the existing signage.

3. The proposed sign will have a detrimental impact on adjacent clients building."

Mr Adrian Finanzio, barrister, instructed by Maddock Lonie & Chisholm, solicitors, appeared for the Responsible Authority. In addition to oral argument he presented written submissions supported with a book of documents.

Mr Stephen Jones, barrister, appeared on the instructions of Robert Green, solicitor for Boydell Pty Ltd, the Applicant for Review/Objector and Applicant for a Declaration. In addition to oral argument he presented two documents containing written submissions and called a number of witnesses. They were Rex James Styles, car trader, Russell John Dickson, land surveyor, Salvatore Robert Cimino, town planner, Norman Alister McLean, loss assessor and Pauline Judith Ong, company director. Each of these witnesses gave oral evidence in the course of which an affidavit was adopted and Mr Cimino also presented a written report. A written statement by Beverley Genser, a statutory declaration by John Williams, retired motor trader and an affidavit of Douglas Bell, retired plumber were also tendered.

Mr Phillip Barton, barrister, appeared on the instructions of Home Wilkinson & Lowry, solicitors for the Respondent Leto Imogena Nominees Pty Ltd, the active Respondent in both proceedings. He presented written and oral submissions and called Mr Lewis Maxwell Sayer, town planner and Kennett John Goodison, land surveyor as witnesses. Mr Sayer presented a written report.

Various plans, photographs and other documents were tendered as attachments to written submissions or as separate exhibits. Evidence presented in documentary form, together with the written submissions have been retained on the file of the Tribunal.

At the commencement of the proceedings Mr Jones sought, and obtained by consent, two amendments to his client's proceedings. The first was to substitute the plans marked as exhibit "B1" for the application plans and the second was to change the wording of the proposal in the permit application to read:-

"For the purpose of erection and display of signage in accordance with the plans tendered to the Tribunal on the 22 June 1998."

1. These cases concern an outdoor advertising sign, and the right to display such a sign on or in front of the side of a two-storey building on the south side of Swan Street, Richmond a little over 100m east of its intersection with Punt Road. The building concerned is on Boydell Pty Ltd's property at 30-32 Swan Street, Richmond. The building is, to all intents and purposes, built right up to its street frontage and to its eastern and western boundaries.

2. This is effectively the second property on the south side of Swan Street east of Wellington Street. Wellington Street is a north-south street running parallel to Punt Road but located approximately 100m to the east of that important thoroughfare. Wellington Street forms a "T" intersection with Swan Street with the stem of the "T" running south from Swan Street.

3. There is one property on the south side of Swan Street between Wellington Street and the Boydell property at 30-32 Swan Street. This property is known as 26-28 Swan Street. Being on the south-east corner of the intersection of Swan Street with Wellington Street, it has a frontage to Swan Street and an abutment to Wellington Street. This property is owned by Leto Imogena Nominees Pty Ltd and that company has leased it to Delta Car and Truck Rentals. Delta carries on a car and truck hire business on this land. Although photographs tendered in evidence dating back to the 1950's show two old single storey buildings on the Delta land, later photographs of the early 1960's show these buildings having been demolished. The front part of the Delta property has remained clear of buildings and is used as a display and storage area for vehicles associated with the Delta car and truck rental business. There is a building containing offices associated with the business set well back from the Swan Street frontage along the rear of the Delta property.

4. The Delta property is on a fairly prominent corner and well exposed to view of traffic travelling east in Swan Street. Swan Street, like Punt Road, is a busy thoroughfare. Double tramlines run along it past both the properties we have been describing.

5. This is a busy area with a lot of traffic and movement. Businesses connected with motor vehicles have been prominent in this part of Swan Street for decades, on both sides of the street and particularly between Wellington Street and Punt Road. It is also an area where many outdoor advertising signs are displayed, including large signs on the side walls of buildings. Outdoor advertising signs of various types are a very prominent feature of the streetscape and we would agree with the proposition that they dominate the scene to the extent of diminishing its amenity.

6. However the immediate locality, with its numerous signs, nevertheless conveys an ambience of being due, or overdue, for change and development. It has rather been left behind, considering the prominence of the locality.

7. This has no doubt been due to the "blight" cast along both sides of Swan Street in this locality by the existence for some decades of a road widening reservation in favour of what is now VicRoads. The prospect of acquisition for road widening has discouraged, and the reservation has effectively prevented, significant investment here for decades.

8. Road widening has taken place between Wellington Street and Punt Road. VicRoads has now indicated that it does not intend to continue with the idea of road widening east of Wellington Street and it will not seek the maintenance of the equivalent of the present reservation affecting the land when the new "VPP" Planning Scheme for the City of Yarra is formulated. The removal of this restraint may see the advent of new development in this part of Swan Street.

9. The Boydell building is a two-storey 19th Century brick building. Its western wall is exposed to view from along Swan Street to the west because there are no buildings on the Wellington Street corner. Even when single storey buildings did exist on that frontage, the first floor part of the side wall was exposed to view from that direction.

10. The photograph evidence presented to us indicates that this first floor level of the western side wall of the Boydell property has been utilised for the display of outdoor advertising of various sorts since the 1950's. The exact nature of the advertising signs displayed during the earlier years are difficult to discern, but in recent years promotional signs have been displayed. By promotional signs we mean signs advertising goods with no particular connection to the business or businesses conducted in the building on the land. The most recent sign in this position, was a sign advertising Coca Cola soft drink. That sign was on the upper part of this wall until 12 months or more ago. There is no sign on the upper part of the wall at present, although there appeared to be attachments to the wall for the purpose of supporting a sign.

11. It is the question of signs on or immediately in front of (i.e. to the west of) the upper part of this wall that gives rise to the controversy in the present proceedings.

12. The ground floor level of this western wall of the Boydell property was originally masked by the single storey buildings on the Delta land. The masking buildings are now gone and a "DELTA" advertising sign is now arrayed along the ground floor level of the Boydell western wall. A further Delta advertising sign reading "CAR & TRUCK RENTALS" is displayed along a lower wall extending along the common boundary from the rear of the Boydell building to the Delta office building on the rear of the Delta site. There are other Delta advertising signs on the Delta office building and above it on the side wall of a two-storey building on its southern side. That building fronts the eastern side of Wellington Street.

13. Immediately to the east of the Boydell building there is a three storey brick building. The western side wall of this building at second floor (third level) height is also open to view from Swan Street to the west in that it is visible over the roof of the two-storey Boydell building. A large promotional sign is displayed on that wall. A couple of chimneys protrude above the top level of that sign.

14. A Mexican restaurant is conducted in the Boydell building. It is identified by signs on its frontage to Swan Street including a vertical above verandah sign attached to the front wall at first floor level. This sign displays the legend "Nachos". A second vertical "Nachos" sign is attached to the rear wall of the Boydell building at first floor level. This is an unusual place for an advertising sign, but because there is no building on the front part of the Delta land, it is visible from along Swan Street to the west.

15. Some evidence was given about the common boundary between the Delta and the Boydell land. According to Mr Dickson, the surveyor called on behalf of Boydell, there is a narrow "hiatus" between the eastern side boundary of the Delta land and the western side boundary of the Boydell land. Apparently the earlier surveying of these allotments started from different commencing points to the east and west and the titles do not quite tie together so that there is a strip of land 0.065m (about 2.5 inches) wide running between the two boundaries when they are measured out in accordance with the respective certificates of title.

16. Mr Goodison, the land surveyor called by Mr Barton on behalf of the Respondent/Owner of the Delta land agrees that there is such a discrepancy and said that Mr Dickson was entitled to account for it in terms of the hiatus he found between the title boundaries.

17. There is a further strip of land along the western boundary of the Boydell land in relation to which surveying evidence was given. This strip is 0.11m or about 4 inches wide. It appears that the building on the Boydell land, when it was constructed, was not built right to the boundary, even as shown on the relevant certificate of title. Thus there is a total gap of 0.175m (6½ inches) between the eastern boundary of the Delta land as shown on its title and the outer or western face of the western wall of the Boydell building.

18. It appears that the parties, or one of them, thought this strip of land might be of some importance. Apparently it was thought that it might be significant if it meant that attachments, such as sign supports and signs, could be attached to that face of the wall without trespassing on to the Delta land. There were questions and cross-examination about the location of the outer face of the wall and it was pointed out that title boundaries are ordinarily determined at ground level.

19. We do not find this controversy to be of significance or relevance. Both surveyors agree, and it is obvious enough, that both the hiatus strip and the unbuilt on 0.11m strip have been in possession of the occupiers of the Delta land for many years, indeed for more than enough years to found a good claim to both strips of land by adverse possession. An hiatus of this sort is not, according to the surveyors, Crown land so is not immune to acquisition by adverse possession on that basis. It therefore appears that the owner of the Delta land has or can establish a good claim to the hiatus and the other strip right up to the outer surface of the Boydell wall.

20. In 1996 the Responsible Authority was in the somewhat unusual situation of entertaining applications for planning permits for identical signs for the advertising space of the then existing Coca Cola sign on the western wall of the Boydell building at first floor level. An application was made for a Coca Cola sign in that position in relation to the Delta land to be supported on the Delta land but which would cover over the then existing Coca Cola sign on the Boydell wall. In fact this proposed new sign for the Delta land would be longer than the length of the Boydell wall so that the rear or southern end of the sign would protrude beyond the rear wall of the Boydell building. In doing so it would screen the rear Nachos sign of the Mexican restaurant from view from Swan Street.

21. The other application for an identical sign, except that it was to be on the wall itself was made in relation to the Boydell land. It too was to protrude beyond the southern end of the Boydell wall. It therefore appears that a new and larger Coca Cola sign was proposed for the Boydell land to replace the then existing Coca Cola sign on the wall while the first application was for an identical sign to be erected on the Delta land screening the existing and proposed signs for the Boydell land being erected a few inches in front of them. Mr Jones claimed that there was no evidence that the new sign for the Boydell land applied for in 1996 was to be a Coca Cola sign, but nothing really turns on that.

22. A permit was granted by the Responsible Authority for such a sign on the Delta land, but that permit was subsequently cancelled by this Tribunal pursuant to a request under s.87 PE Act. That request was on the grounds that no notice of the permit application was given to the owners and occupiers of the adjoining Boydell land (a mistake had been made in the office of the Responsible Authority where it had apparently been assumed that the application was on behalf of the owner or occupier of the Boydell land).

23. So far as the 1996 application in relation to the Boydell land is concerned, notice was given and objections were received from parties having an interest in the Delta land. However, the permit application was subsequently withdrawn. It now appears that Boydell seeks to assert and rely upon what might be called continuing display rights to display advertising signs on this first floor section of the western wall. Such continuing display rights, where they exist, can be regarded as analogous to existing use rights which are more familiar in planning law and practice. It is common for planning schemes, and sometimes for planning Acts, to contain provisions preserving the right to continue to use land where such use was lawfully commenced prior to the commencement of planning controls that now prohibit or require a permit for such use. A similar right to continue the display of an outdoor advertisement can be preserved where such display commenced lawfully before the commencement of planning controls and has continued lawfully since. The onus of proving the existence of such rights rests on the party asserting them, on the balance of probabilities (see Belle v Hyde [1939] VicLawRp 44; 1939 VLR 300, Clare v Jeff's Bulk Appliances Pty Ltd [1981] VicRp 72; 1981 VR 758). There are frequently provisos in the relevant provisions which must be observed.

24. So far as the Yarra Planning Scheme is concerned, the relevant existing display provisions are found in Clause 18-4 of the Regional Section of the Planning Scheme which reads:-

A sign lawfully displayed on the approval date or that was being constructed on that date may be displayed or continue to be displayed and may be repaired and maintained.

A lawfully displayed advertisement may be renewed or replaced. However, a permit is required:

v To renew or replace the advertisement of an animated or internally-illuminated sign.

v If the renewal or replacement would result in a different type of sign.

A sign that is reconstructed must meet the relevant advertising sign requirements."

25. The declaration application 1997/76497 seeks declarations in relation to the existence of continuing rights to display advertising on this wall although the wording of the declarations actually sought are in terms of existing use and development rather than display. This appears to be an error and the presiding member, who is responsible for determining the declaration application, would not be minded to grant declarations in the terms sought for that reason. This is in spite of Mr Finanzio foreshadowing an argument, for another day, as to whether the display of outdoor advertising signs is properly to be distinguished from town planning uses and developments.

26. The evidence does show the use of the upper section of the western wall for the display of various advertisements amounting to outdoor advertising dating back to the 1950's and apparently before the introduction of planning controls to this area, or at any rate planning controls on outdoor advertising.

27. Photographs from the 1950's appear to show advertisements covering the whole of the first floor western wall, but exhibit "J3", being a photograph of 1966-67 shows a sign at that stage occupying only a half to two-thirds of the area. None of the evidence would support a continuing display right for a sign extending beyond the southern end of that wall by 2.5m like the sign sought in the discontinued 1996 application.

28. Boydell has sought a declaration in relation to continuing display rights on the assumption that the establishment of such rights is important to its case in relation to the real matter in dispute in these proceedings. It asserts a continuing right to display advertising on the upper wall but it also asserts that such right, if it exists, involves a right to prevent others from erecting a sign on the Delta land in front of such wall sign and screening it from view. Boydell has established display of advertising on the wall dating back to before the introduction of planning controls on outdoor advertising signs, but not necessarily that rights to continue such display extend beyond the limits of the J3 advertisement of 1996/97. In any event, it appears that the real matters in dispute can and should be determined in relation to Planning Appeal 1997/00708 and that it is neither necessary nor desirable to make the declarations sought.

29. Appeal 1997/00708 is an objector's appeal by Boydell against a decision of the Responsible Authority to grant a permit for new signs on a new application on the Delta land. This application (96/1332) is now for the sign shown on the plans being exhibit "B1". This involves three signs in all, all supported on structures on the Delta land and erected approximately 200mm west of the west wall of the Boydell building.

30. The controversial one of these signs is sign A which would be 3.3m high and 12.6m wide to be erected on such supports at first floor level against the Boydell western wall completely screening that wall and any signs upon it. The wall is approximately 10m long so that the sign extends for approximately 2.5m beyond its southern extremity. The proposed message for sign A is "COCA COLA".

31. Sign B is proposed to be erected on the same supports beneath sign A. It would be 2.5m high and approximately 10m long erected so that its bottom edge would be approximately 2m above ground level. Its message would be "DELTA" and would take the place of the existing Delta sign at ground floor level along this wall.

32. Sign C would be only 1.2m tall but 10m wide erected on the structures so that its top would be levelled with the top of sign B and it would start at the southern end of sign B and extend for 10m to the south. Thus it would protrude further south than sign A by about 7.5m. Its message would read "CAR & TRUCK RENTALS" and would thus take the place of the existing sign in that location. Signs A and B would be illuminated by floodlights on supports protruding from between those two signs.

33. Planning permission for such signs is required by the combined effect of Clause 138 of the Local Section of the Planning Scheme dealing with reserved land (this land being still reserved at this stage for proposed Main Road Reservation) and Clause 18 of the State Section. Clause 138-6 provides that signage control for this location is in Category 12 under Clause 18-5.

34. Clause 18 as a whole deals with advertising signs and its purposes appear in the following terms:-

v To allow for adequate and effective signs appropriate to each zone and reserved land.

v To ensure that signs do not cause loss of amenity or adversely affect the natural or built environment or the safety, appearance or efficiency of a road."

35. Clause 18-2 sets out guidelines that must be considered in deciding an application for a permit to display a sign. Clause 18-2 reads as follows:-

Before deciding on an application to display a sign, the responsible authority must consider:

v The effect of the sign on the amenity of the area including the need to avoid visual disorder or clutter of signs.

v The effect of the sign on the built environment or the landscape, with particular thought to its effect on any objects of scenic, historic, architectural, scientific or cultural interest.

v The need for identification and the opportunities for adequate identification on the site and nearby.

v The advertising pattern and theme in the area and the number of signs of the same type.

v The size and likely impact of the sign having regard to the size of the premises on which it is to be displayed and the scale of surrounding buildings.

v The effect of the sign on the safety, warning and security of premises and public areas.

v The effect of the sign on the appearance and efficiency of a road, railway, waterway or other public way, having particular regard to the sign's colour, brightness and location.

v The views of the Roads Corporation if the sign is an animated, floodlit, internally-illuminated, panel, reflective or sky sign to be displayed within 60 metres of a main road that is a freeway, state highway, metropolitan bridge or other road declared under the Road Transport Act 1983."

36. The relevance and relative importance of these various considerations will vary from case to case and situation to situation. There will often be a need to balance conflicting considerations in coming to a decision. In some cases some of the considerations will not be relevant. In the present case the last three are not, in our view, relevant and no case was advanced before us on the basis of those considerations.

37. The consideration which, in this case, raises a difficult question for consideration is the fifth, that is to say, the effect of the proposed sign on existing signs.

38. It is obvious enough that the effect of the proposed sign A on the existing sign (well really there is no existing sign at the moment but on the sign if one was erected in exercise of the continuing display right) would be to mask it so that it could not be seen. From the point of view of those seeking to display the sign or to derive commercial benefit from such display, this is a very adverse effect indeed.

39. However, town planning is not about the achievement or protection of private commercial rights, private financial interests or protection from commercial competition. That is true of planning generally, and just as true of planning in relation to outdoor advertising signs.

40. Planning controls on outdoor advertising signs are imposed in the public interests, as the purposes quoted in paragraph 35 above indicate, to ensure that signs do not cause loss of amenity or adversely affect the environment or the appearance and efficiency of roads. On the other hand they are to allow adequate and effective signs that are appropriate to reserved land and to provide for the orderly display of signs. The "effect" of a proposed sign on existing signs has to be viewed in the light of these public purposes, not the understandable commercial interests of those whose sign might be screened.

41. The owner of the Delta land, like any land owner, is entitled to use and develop its land as it sees fit, within the constraints of the law. An important set of constraints are the planning laws. However the planning laws are established for a public purpose and to protect the public interest. They are not to be interpreted as creating private property rights. If there is no reason, having regard to the purposes of the planning scheme, why a permit for sign A should not be given, then it should be granted, notwithstanding its adverse affect on a sign or potential sign attached to the wall behind. In determining whether there is good reason, in planning terms, why such permit should not be granted, attention must be given to the purposes in Clause 18 in the guidelines in Clause 18-2.

42. We find no reason, possibly other than a consideration of the fifth item in 18-2, why the permit here sought should not be granted.

43. In saying this, perhaps we should mention at this stage, that we do not favour sign A being so wide as to extend beyond the southern end of Boydell's western wall at first floor level. That extension gives an appearance of overloading the building with signs. In our view it amounts to an undesirable degree of visual disorder and contribution to "clutter" of signs. But if sign A is restricted in size so that it does not extend above or beyond the limits of the wall behind it, we do not think that it falls foul of the purposes or guidelines under consideration.

44. Subject to that limitation, and bearing in mind the existing amenity of the area, we do not think such a sign as the proposed sign A, whether on a structure in front of the wall or attached to the wall itself should be regarded as unacceptable from the point of view of visual disorder or clutter or affect on the built environment.

45. We might observe that if the sign only partially screens the sign (or potential sign) behind it, instead of doing so completely, then we would almost certainly be of the view that it created unacceptable visual disorder and clutter. We would take that view even if the screening was complete from some vantage points if the screening was nevertheless only partial from others.

46. We note that there was some reference as to the 12.6 width of the sign being needed to meet a national standard. This apparently means to meet a standard module or sign size favoured by Coa Cola or its advertising agents. This may account for the coincidence in size in the 1996 applications. That size may be what Coa Cola or others may wish, but we do not regard it as acceptable here.

47. The third consideration in Clause 18-2 refers to the need for identification. It is of some importance that land users should have an opportunity to identify themselves and to display reasonable and adequate signs to enable themselves to be found and for potential customers to find them. There is more to this consideration than the commercial advantage of the business concerned. It is an advantage to the public to be afforded a reasonable opportunity of finding a business that is being sought. It would be an important consideration against allowing a sign that masks another sign if it was to prevent adequate identification of the adjoining premises or businesses conducted on those premises.

48. Of course corner premises enjoy a considerable advantage in identification, as well as in being visible for displaying other forms of advertising. If a corner site happens to be left vacant, or at any rate does not have buildings on the corner, that "corner advantage" can pass along the street to the next premises. That is what has happened here. The advantages passed to the Boydell property, initially at first floor level because no obstructing building existed on the Delta land, and later at ground floor level when the single storey buildings on the Delta land were removed. The advantage at ground floor level was recaptured for the Delta land with the erection of the DELTA sign at that level.

49. Thus, the Boydell property has only enjoyed that benefit by sufferance. If the owners of the Delta land had chosen to exercise their right to build a 2 or 3 storey structure on the corner block, the benefit would be lost, so far as the Boydell property was concerned. Indeed it was lost at ground floor level whilst the single storey buildings were there and lost again with the erection of the DELTA sign at that level.

50. This can be seen as a working out of the principle that an owner is entitled to use, develop and enjoy its land within the constraints of the law as it sees fit. It was common ground at this hearing, as it was in other cases referred to, that an owner was entitled to extinguish the benefit otherwise accruing to the second property by exercising its right, within the law, to erect a building even if it screens an existing sign. It was argued however that this right applied only to the erection of a building and not to the erection of a sign. The erection of a sign structure can be regarded as a development of the land, and would be a building within the definition of that term in the planning laws. There is no distinction in principle between the owners right to erect a building with rooms in it and the right to build a structure with a sign on it, providing that planning and other laws are complied with.

51. An owner in the position of Boydell does not acquire a propriety right in the nature of an easement to protect an avenue of view to a sign on its wall just by lawfully erecting that sign. The advantage can be lost by a building, and in principle the same applies to it being lost by a sign and supporting structure. There is no right to a quasi easement prohibiting signs anymore than there is to the prohibition of a building.

52. If there was a proposed new sign which eliminated the reasonable opportunity for identification, that might well be a decisive consideration against allowing the new sign. It does not follow from this that a non corner property can rely on such an argument to prevent a sign that would reduce its identification opportunity by taking away the benefit of a side wall visible in like fashion to the side wall of a corner site. If one wants exposure of a corner site, one must acquire a corner site. If one has a non corner site one must usually be content with frontage exposure and identification, but not the side wall exposure. It is where the only adequate exposure is by means of a side wall, where for some reason front identification is not possible, that this argument against a masking sign would become compelling.

53. We do not think that the considerations in relation to advertising patterns and themes, the number of signs with the same type, the likely impact the sign having regard to the size of the premises (except to reduce the sign to within the compass of the wall) and the scale of surrounding buildings amount to reasons that would persuade us to refuse this permit.

54. Thus it would be the fifth consideration in Clause 18-2 as to the effect of the sign on existing signs that would persuade us, if anything did, to refuse this application.

55. The argument based on the fifth item in Clause 18-2 is that a consideration of the effect that a proposed new sign might have on an existing sign (and perhaps the outdoor advertising provisions generally) contemplates that signs will be displayed and be in fact able to be seen. If a permit is granted for a sign, that contemplates its display. If continuing display rights exist in relation to a particular sign, then those rights take the place of a permit, and again it is argued that the sign will be displayed and will be able to be seen. There is no purpose in an outdoor advertising sign that cannot be seen.

56. A weakness of this position is the concession that all parties make in relation to a building that would mask an existing sign. No one wants to argue that a legitimate building would be prohibited because it will mask a sign, even a sign with a permit that contemplates that it will be visible. The argument rather seeks to depart from consistency by saying that a new masking sign is different in principle from a new masking building or development of another kind. The principle on which this distinction is based is not apparent. It amounts to saying "first come first served", or rather that the first lawful sign erected is entitled to exclude otherwise legitimate competitors on other land. The difficulty is in maintaining that this right of exclusion of other signs applies only to other signs and not to other buildings or developments. Instead of saying that the first sign will be able to be seen only so long as the owner of the land that might support a masking sign does not choose to exercise that owner's right to put up a new structure, it says that the first comer acquires a right that prevents the adjoining owner from exercising his or her rights. This acquired right to have the first sign viewed appears to be in the nature of a property right like an easement in favour of the first sign and the land on which it stands. That land becomes, in effect, the "dominant tenement". This easement like right can be asserted, at least so far as advertising signs are concerned, over the "servient tenement".

57. This seems to us to be an attempt to create a new principle in property law rather than in planning law and in doing so to deal with a topic purportedly under planning law which goes beyond the scope of planning law.

58. According to this supposed principle, the second comer is prevented from putting up a new and otherwise legitimate sign on his or her land because it will mask a sign on the neighbour's land, even though the final result, from a public planning point of view, will be indistinguishable. It is cases like this present one, where the result from a public planning point of view will be the same, whether or not the second sign is allowed, that points up the difficulty of this supposed principle and which expose it as being based on considerations other than public planning.

59. We would agree with the view that if the effect on an existing sign was partly to obscure it, at least from some viable points of view, and the result was to create confusion or clutter, this would be a good example of where the effect of a proposed new sign on an existing sign was such that, from a public planning point of view, it should not be approved. The argument that the first comer excludes later comers wants to go further than that by suggesting that even if there is no public detriment, the first sign acquires a pre-eminent right even though the only detriment being prevented by excluding the second sign is a private commercial one.

60. We will consider some cases that were suggested to us as supporting this view. Before embarking on that discussion we wish to say something about the colloquial expression "first come first serve". Applied here it amounts to "first come first served and second come not served at all". Our view of it, in relation to this particular signs situation is "first come first served, second come, served in their turn".

61. The expression "first come first served" has been used in relation to other planning situations. There was some mention of this in the course of oral argument before us. The first instance we are aware of, and the case initially giving rise to discussion before us, is the decision of the Administrative Appeals Tribunal in Peters & Ors v City of Caulfield [1993] 11 AATR 148. This is a decision of our colleague Mr W H M Barr sitting with our former colleague Ms A J Smith. It is well known as the brothel/ballet school case.

62. In that case there was an established and lawful brothel in operation. A ballet school had established itself in the next door premises without a permit required by the Planning Scheme. It had operated for approximately five months. Ballet students of ages ranging between 5 and 18 attended the ballet school during hours when the brothel was open for business. There had been some interaction between the two. Occasionally ballet school students have gone on to the brothel premises and helped themselves to sweets provided for brothel customers. The Tribunal took the view that these two uses were incompatible and unsuitable to be sited on adjoining premises. It came to this proposition on the basis of its own view of what is good planning and also on the basis of the relevant legislation and ministerial guidelines. The Tribunal took the view that these considerations would prevent the grant of a permit for a new brothel beside an established ballet school, but it also took the view that the converse also applied namely that it provided a proper basis for refusing a permit to a new ballet school seeking to establish itself beside an existing lawful brothel. As the Tribunal said on page 155 of the report "It seems to us in this situation, it is first come, first served." This really meant that the second comer would not be served at all because the two uses are incompatible in such close proximity to each other.

63. We agree with this approach in that situation. It is based on sound planning which seeks to avoid the establishment of incompatible uses in close proximity to each other. That aspect distinguishes the dancing school case from our present case concerning signs in Swan Street, Richmond. We are not now dealing with incompatible uses or the need, in terms of good planning, to keep them separate. Rather we are considering whether the first comer, in relation to the erection of signs, can exclude a second comer where there is no planning objective to be achieved or planning evil to be avoided by the grant of such a privilege.

64. The dancing school case was effectively approved by the Administrative Appeals Tribunal and the reasons given in relation to Newgate Pty Ltd v City of Melbourne and Salzer Constructions Pty Ltd [1995] 17 AATR 61. That case concerned a proposal to construct an eleven storey hotel/motel in Little Bourke Street near King Street in the night club precinct of the City of Melbourne. The proposed site was next door to an existing lawful night club known as "The Tunnel". An objection was raised on behalf of The Tunnel on the basis that the proposed new use would be incompatible with the existing lawful night club use and the dancing school case was invoked in support of that argument. It was said that the noise generated by the night club, including noise at night and into the early hours of the morning, would be a disturbance to guests at the hotel/motel and would give rise to conflict and problems. It was also suggested that other aspects of the activities of the night club or of customers attracted by the night club would disturb hotel/motel guests.

65. The Tribunal, in that case, approved the principle in Peters v City of Caulfield (the dancing school case) but distinguished the case then under consideration on the facts. It found that the two uses were not inherently incompatible, as would be the case in relation to a dancing school and the brothel, but rather that the evidence indicated that the hotel/motel could be constructed in such a way as to exclude unacceptable noise from the guest rooms. Accordingly a permit was granted in that case.

66. Another interesting example of "first come first served" being applied to achieve a planning purpose and to prevent an unacceptable planning outcome is to be found in the more recent Administrative Appeals Tribunal decision of Kilrand Hotels (Hallam) Pty Ltd v Casey CC & Pendlebury & Associates Pty Ltd [1998] 21 AATR 295. This case involved a proposal to upgrade existing evening facilities on one side of the Princes Highway at Hallam to establish a bar/restaurant and late night entertainment facility under a general liquor licence. It appears that there would have been no problem with this proposal if it had not been for the existence, on the other side of the Princes Highway, of the Hallam Hotel offering similar late night entertainment. The evidence indicated that, where two or more such venues are established within easy walking distance of each other a strong pattern of promenading between the two or more venues quickly developed. The late night entertainment precincts of King Street, Melbourne and Chapel Street, Prahran were cited as examples of this phenomenon. In the Hallam situation this phenomenon would not have raised concern if both the existing and the proposed facility had been on the same side of the Princes Highway. In that situation the patrons could promenade back and forth as much as they liked. The problem arose from the new proposal intending to locate on the opposite side of a very busy six lane highway with a further service lane on one side. It was found that it would be bad planning to allow such a new use where it would encourage or cause a good deal of otherwise absent pedestrian movements back and forth across the highway late at night, particularly as the pedestrians are likely to be distracted by having a good time and perhaps less attentive by having consumed alcohol. The ballet school case of Peters v City of Caulfield was not discussed in the reasons given in this Hallam hotel case, but a permit was refused on the basis of the planning considerations we have referred to. It was another instance, in some senses, of a "first come first served" approach, although the "first come" really related to one side of the Princes Highway as opposed to the other, rather than one use as opposed to another. It appears that the Tribunal would have decided that the considerations leading to refusal would not have applied if the new proposal had been for the same side of the highway. Again this is an example of the first comer imposing an exclusion, at least so far as the other side of the highway was concerned, but again it was on the basis of an important planning consideration. Thus the ballet school, The Tunnel night club and the Hallam hotel cases can all be distinguished from the Swan Street signs on the basis that the exclusion of the second comer was based on the attainment of sound town planning. In this Swan Street signs case, there is no such planning principle at stake. The result, from a public planning point of view, will be the same whichever of the competing signs is finally exposed to view. The first comer cannot exclude the second comer on the basis of planning principles where the result is indistinguishable. The first comer can only exclude the second comer on the basis of planning principles where the second comer proposes to create an unacceptable planning result by introducing an incompatible planning use adjacent to an existing lawful use.

67. Having made that distinction, we will now (as promised) consider the cases suggested to us as supporting the contrary view.

68. The main case cited to us in support of this approach is Nettlefold Advertising and Claude Neon Pty Ltd v City of Prahran, Cody Outdoor Advertising & Anor (unreported Appeal 1993/71548). This is an appeal determined in 1994 by a member of the Administrative Appeals Tribunal who is not a legal practitioner who was sitting alone. It concerned a proposal for a floodlit sky sign on the roof of a building at St Kilda Junction. The objections to the sign included that it would "impede" the vision of existing signage, decrease their visibility and would clutter advertising at the Junction. We note that "impede" implies partial obstruction rather than complete masking.

69. The Responsible Authority in that case referred to a code it had adopted several years before which stated, in respect of advertising signs, that sky signs are not permitted except where replacing an existing sky sign. The proposed sky sign, although discretionary in the zone, was of a type not normally permitted by the Responsible Authority and which were, indeed, in contravention of its code. The Responsible Authority went on to argue that St Kilda Junction had a special character associated with the existence of large promotional advertising signs and that the proposal was not in keeping with the special character of the area. The Tribunal agreed with this contention of the Responsible Authority. That view, it appears, would have been sufficient to dispose of the appeal. However, the Tribunal went on to consider the obscuring question. On page 5 the following appears:-

"The Tribunal further finds, on the evidence before it, that the proposed sign would prevent the southern face of the Nettlefold sign from fulfilling any advertising purpose by completely obscuring it from any view along Fitzroy Street, the only street to which it presently has any exposure. The Tribunal further accepts that the Claude Neon, Coca Cola sign, was preceded by the Nettlefold advertising sign and effectively obscures it from any view to traffic travelling north along St Kilda Road. The Tribunal considers that these matters are self-evident and were established as common ground at the hearing.

The issue in this appeal then, is whether it is appropriate in planning terms to grant a permit for a sign that would effectively negate an existing sign, given the circumstances pertaining to the subject site."

70. The Tribunal then made reference to some earlier planning decisions. The earliest of these were Australian Posters Pty Ltd v City of Ringwood [1987] 28 APA 108, another decision of a non-legal member sitting alone. It is a decision of the Planning Appeals Board.

71. Full reasons are not given for the determination in that case. Oral reasons were given during the hearing and only a brief summary is given in four points. The proposed promotional sign was intended for a wall of a new building. The Planning Appeals Board was concerned that the occupants of shops and offices in this new building may wish to display identification signs on the wall, indeed the Responsible Authority had before it a proposal for such a sign which was significantly smaller than the proposed promotional sign. The view was taken that the identification signs should take priority and that, having regard to the potential of other signs in the location, the proposed sign "could either prejudice the potential for business signs or result in a clutter of signs to the detriment of the amenity of the neighbourhood".

72. This case does not really bear on the question of whether a second sign completely masking an existing one should not be allowed. In fact in that case the first proposed sign was excluded in favour of others thought to be in the pipeline. The case was really decided on preference for identification over promotional signs and the danger of clutter.

73. The next case referred to is Levingston Advertising Country Pty Ltd v City of Geelong Western & Anor [1988] 36 APA 5. This is a decision by the same member, although by this stage sitting as a member of the Planning Division of the Administrative Appeals Tribunal. In fact that member decided all the cases related to in the Nettlefold St Kilda Junction case except for Eagles case referred to in paragraph 70 below.

74. The Levingston case involved a proposal for a large 6m x 3m promotional sign on railway land which would partly obscure an existing old identification sign of Soldani Brothers Panel Beaters displayed on a wing wall between the front of the panel beaters office and the street frontage. The appeal was allowed, and a permit was refused specifically on the first two grounds of refusal of the Responsible Authority. These were not actually on the basis that the proposed new sign would completely mask the existing signs. The grounds of refusal held to have been substantiated were that the proposed sign would dominate its surroundings, be detrimental to the amenity of the area and would create a clutter of signs in the neighbourhood.

75. The reasons for the decision are set out in the following three paragraphs commencing on page 6 of the report:-

Mrs Knight, for the objector, submitted that the proposed sign would largely obscure the existing painted sign on the wall forming the common boundary with the railway land as viewed by traffic travelling north along Pakington Street. The tribunal believes that where an advertising sign, perhaps especially a sign which identifies a commercial premises and announces the nature of services available therein, is properly and lawfully displayed it should have the right to some protection to display the information it seeks to do. In this case the proposed sign would completely obliterate the major part of the existing Soldani Bros' sign.

Mr Dapse argued that, prior to this application being made, the Soldani Bros' painted sign had been allowed to deteriorate in condition and was largely obstructed by vegetation within the garden strip along the northern boundary of the railway land. It is only recently that the vegetation in front of the sign has been reduced in height to make the sign clearly visible to traffic.

Be that as it may, the Soldani Bros' sign does exist, and the tribunal believes it is entitled to adequate protection. Apart from obscuring the majority of the Soldani Bros' sign, the proposed sign, if permitted, would create a clutter of advertising by its juxtaposition with two smaller signs on the Soldani Bros' premises above the wing wall and a traffic sign (no entry) at the exit driveway from the railway land. Such clutter and conflict of signs would be visually detrimental to the amenity of the area."

76. It can be seen that the reasoning is not ultimately based on the priority of one sign because it was their first, but rather because it is an identification sign entitled to preference over a promotional sign, because it would be only partly obscured and because the result would create clutter that would be visually detrimental to the amenity of the area.

77. In Nettlefold there is also a quotation, referred to by counsel in that case, from R L Eagle & Ors v City of Prahran & Claude Neon Ltd [1987] 5 PABR 242. The quotation appears at page 252 of the Eagle report where it is plucked from the middle of a paragraph. It reads:-

"Just as a land holder may argue that his building is detrimentally affected by a development next door, so could a sign company object against a proposed sign that might adversely affect the existing signage. The argument would not be that there would be a loss of advertising return or that the lease fee would be too high for a degraded site, but rather that the whole objective of the existing signage might be defeated by the sign being covered or obscured by the new signage."

78. This was another case about the signs, indeed the competing signs at St Kilda Junction. It is a decision of a legally qualified senior member of the Planning Appeals Board sitting with two planning members including the member who heard the two cases previously referred to. We find that this quotation is a little misleading and somewhat taken out of context. The Tribunal was there dealing with an argument as to whether a competing sign company that objected to that proposal had standing (a sufficient legitimate interest) in the subject matter of the appeal to be heard as an objector in relation to it. The quotation refers to arguments that might be raised by such an objector without necessarily endorsing them.

79. Perhaps we should also observe that it is not apparent to us that St Kilda Junction, either today, or in its configuration and that of the buildings around it as they stood in the late 1980's, is really analogous to the situation in Swan Street, Richmond. St Kilda Junction is a large important and very complex intersection at the head of several important vistas and with buildings arranged around it in such a way that the sort of situation we are considering in Swan Street is most unlikely to arise.

80. In the Nettlefold case concerning St Kilda Junction there is reference to a further unreported decision of the member who determined the Ringwood and Geelong West cases referred to above. This case, Australian Posters Pty Ltd v City of Heidelberg is Appeal No. 1989/31735. The proposal in that case was for a 12.8 x 3.3m floodlit promotional sky sign rising to 8.8m above street level. The Responsible Authority had refused the proposal on the basis that it would add to the visual clutter of signs already in the vicinity, that the sign was considered inappropriate for the site and detrimental to the amenity of the area and because:-

"The sign is inconsistent with other signs legally permitted in the area with other Administrative Appeal Tribunal directions and would create a precedent for other applications for approval."

81. The Tribunal found that the Responsible Authority had substantiated its reasons for refusal. It said at page 3:-

"The premises on which the sign is sought to be displayed are already covered with a great deal of advertising material. Most of the western side wall below the proposed sign is covered with promotional advertising relating to a business elsewhere. The frontage of the premises contains a great deal of advertising material relating to the licensed grocery. The front of the building on the site could already be described as rather cluttered with advertising material and the proposed sign would undoubtedly add to that visual clutter of signs.

The size of the proposed sign, to be located above the existing single storey building, would, in the Tribunal's opinion, be out of scale with the predominant single storey development in the area and would dominate the building above which it would stand. In this context, the Tribunal believes that the size of the site would be inappropriate to the site. While a sign of this size may be acceptable at a lower level, such as already exists, a sign of that size located above the building would not be acceptable.

Having regard to the views arrived at by the Tribunal with respect to the potential for visual clutter and the inappropriate size of the sign, the Tribunal is of the opinion that the proposed sign would indeed be visually detrimental to the amenity of the area."

82. The Tribunal was also apprehensive of a rush of applications for large promotional sky signs of this size along Bell Street to the west of the appeal site if that one was permitted.

83. While it is clear that the Tribunal refused the permit on these grounds, it went on, at page 4, to discuss "another matter of concern ... that is the effect of a sign in this location on the painted sign existing on the western wall of the building at 50 Bell Street. That sign would be totally obscured by the proposed sign from all but within a short distance of the premises."

Apparently, even in this case, there was not be quite a total obscuring of the existing sign.

84. It was argued that it was not clear that the existing sign was lawful and "in any event, side walls are always prone to be built out by an extension in height of adjoining buildings". The Tribunal continued:-

"Clearly the most prominent advertising at 50 Bell Street to vehicles approaching from the west is that on the side wall rather than on the façade or the windows. The Tribunal accepts that this signage could be totally obscured if one of the two buildings adjoining to the west had a second storey added or was re-built to that height, but it sees this as an entirely different situation to one where an existing sign is practically totally obscured by another sign. Anyone who places a sign on the side wall of a mid-block building takes the risk of that sign being obscured by another building but the Tribunal does not believe it should face the same risk from another advertising sign."

85. As to this last proposition, we must ask why not? What is the difference in principle? The Tribunal in this case Australian Posters Pty Ltd v City of Heidelberg then went on to refer to yet another decision of the same member in Australian Posters Pty Ltd v City of Nunawading, an unreported Appeal P86/1798 in which a determination was given on the 14 April 1987. However, that was another case of partial obscuring. The proposed sign there would partially obscure an existing wall panel sign. It was submitted that no provision in the Planning Scheme or any other statute guarantees the owner of any sign a right to have it viewed. The Planning Appeals Board in that case did not agree with that contention saying (page 5 of the Australian Posters Pty Ltd v Heidelberg reasons) that it believed that:-

"Where an advertising sign, perhaps especially a sign which identifies a commercial premises and announces the nature of the services available therein, is properly and lawfully displayed it should have the right to some protection to display the information it seeks to do".

86. In this connection some reliance was placed on the Responsible Authority's Outdoor Advertising Policy which recognised an entitlement to identification. The importance of identification is noted, but in our opinion exaggerated if it is taken to the extent of saying that there can be no building out of an identification sign taking advantage of fortuitous exposure on a side wall where other adequate, though not necessarily equally advantageous, identification exposure is available.

"To preserve the potential advertising capability of nearby premises and occupancies from both vehicular and pedestrian networks."

88. The preservation of potential advertising capability on nearby premises does not appear in Clause 18-2. Even if it did it would not necessarily resolve the present conflict between the Delta land and the Boydell land. Each is nearby the other and each has an advertising potential to be considered.

89. The Tribunal in the Heidelberg case went on to note that the proposed sign would obscure the existing sign "to a significant extent". It noted that the existing sign contained information about services available on the premises and that the Board considered this a proper matter to take into consideration. It also considered that the extent of obstruction was sufficient reason to reject the proposal. If it had not considered this a sufficient reason it was also of the opinion "that the effect of the overlap of the proposed and existing signs would be such as to create a clutter of advertising within the vision of drivers of vehicles proceeding north along Rookes Road".

90. We do not disagree with the result reached in that case, namely that no permit should be issued; indeed we do not disagree with the result reached in any of the cases referred to above. However we think it is proper to approach those cases, and the one before us, on a consideration and weighing of all the relevant matters. In the case before us we are called upon to consider and weigh those relevant matters referred to in Clause 18-2. It is appropriate to do this on the basis of their planning importance in the particular situation rather than on the basis that the fifth consideration in Clause 18-2 determines that no proposed sign can ever obscure an existing sign, even by completely obscuring it so that no adverse effect, from the point of view of the public results.

91. Having now dealt with all the cases referred to in the Nettlefold Advertising and Claude Neon Pty Ltd v Prahran and Cody Outdoor Advertising we now refer to the ultimate paragraph in the reasons given in that case. After each of the first two sentences of this paragraph we interpolate our comment in square brackets.

"It is the Tribunal's view that Clause 18 of the Planning Scheme in setting out the purposes and guidelines clearly legitimises the existence of signs and envisages that the intent is that the message contained upon them should be seen. [We agree]. To permit a sign that totally obliterates another from the only reasonable vantage point clearly negates the existing permitted sign and is not in accordance with the provisions of Clause 18. [Cases must be judged on their merits but the rule here propounded, that such a new sign is necessarily not in accordance with the provisions of Clause 18 is not justified]. The effect of the proposed sign on the existing Nettlefold sign is to render that sign ineffective and in these circumstances the Tribunal finds the arguments regarding overall visual improvement of the Junction and the general aesthetics of signage orientation with respect to host buildings are irrelevant.

92. The presiding member in our present case has determined an enforcement order application being the City of Knox v Ferngull Corporation Pty Ltd &Allan J Overall, unreported Appeal No. 1996/21380 in an interim determination dated 28 November 1996 arising from a hearing on the 18 November 1996 and in a final determination dated 11 June 1998 subsequent to a further hearing of the 15 May 1998 when an appeal of Ferngull Corporation Pty Ltd v City of Knox, Appeal 1997/52760 under s.77 PE Act against a decision to refuse a permit was also heard and determined. None of the cases referred to above were cited or discussed in these Ferngull decisions. They were determined on first principles without the assistance of reference to any previous cases.

93. The Ferngull cases concerned a situation where several small factories existed in a building which presented a blank brick wall along its side boundary with the Ferngull land. The front most of these contained a workshop where kitchens were manufactured and a sign reading "Kitchens" was painted on the front part of the side wall. This sign looked out over the Ferngull land and was visible to traffic approaching from the east in Ferntree Gully Road. It was visible because the front part of the Ferngull land was not built on except for the existence of a concrete pavement used for display of vehicles and parking in relation to the motor showrooms set further back on the Ferngull land. The Kitchens sign had been in place for 15 years without a permit. It created a nuisance to the Ferngull motor showrooms in that it attracted Kitchen's customers onto the Ferngull site where they parked and then went to do their business with the Kitchens business next door. After attempts to reach an acceptable compromise agreement failed and Ferngull then erected a sign immediately in front of the Kitchens sign which completely obscured it. It did this without obtaining a permit. That resulted in the Responsible Authority seeking an enforcement order against. It then painted out the advertisement on its sign leaving a white screen in front of the Kitchens sign. In the interim determination adjourning the enforcement order application the following passage appears on page 4:-

"On the face of it there is no obligation on the part of Mr Overall [of Ferngull] to keep part of his property clear of buildings and obstructions so that people can see signs painted on the adjoining walls. He is free to erect signs or other structures, provided that this is done in conformity with the law including the planning laws."

94. Subsequently a permit was obtained for the Kitchens sign but this did not fully legalise it inasmuch a condition required the approval of a plan. A plan was later approved but it required some alteration to the sign which alteration was never made.

95. Ferngull applied for a permit for its sign which was refused on the basis that "the proposed sign will unreasonably obscure an existing sign" and because "the proposed sign will affect the orderly display of signs in the locality".

96. In paragraph 3 of the ultimate reasons given it was observed that:-

"The Kitchens sign is no longer "illegal" in that the relevant condition has now been complied with [a plan had finally been approved] although it does remain illegal in the sense that the advertisement on the wall sign has not been altered to comply with the approved plan."

"In its grounds of refusal the Responsible Authority appears to have taken the view that the Kitchens sign has some sort of prior right to be displayed and that obscuring of that sign is a reason for refusal of the new proposal."

"I am obliged to consider the new proposal impartially on the basis of the Planning Scheme provisions and good planning, and without regard to the dispute between the parties and without any partiality between them.

As stated in the previous document, I do not think that the "Kitchens" sign has any prior right or that Krafted Kitchens can claim to have acquired some sort of propriety right over the land of Ferngull Corporation Pty Ltd. Krafted Kitchens have no right to a continuance of vacant space in front of their sign. As far as I can see Ferngull Corporation Pty Ltd would be entitled, subject to obtaining any necessary planning or building permissions, to erect a building or other structure on its land in such a way to obscure the Kitchens sign.

That, of course, is what it has done. It now seeks planning permission for the sign. I think the question of whether or not that permission should be granted has to be considered without regard to the screening of the Kitchens sign. Technically, of course, the Kitchens sign remains illegal and it is probably true to say that it is only the screen in front of it that prevents it being displayed and prevents an offence being committed thereby.

Ms Sampson, in her written submissions, set out various guidelines relevant to the consideration of an application for the display of such a sign. I do not think that these various considerations weigh against the grant of the permission sought. I do not think that the proposed sign is unduly detrimental to the amenity of the area or that it causes visual disorder or clutter to any greater extent than the Kitchens sign or the other signs further down the wall.

I do not think that the proposed sign has an unduly detrimental affect on the built environment or on objects of scenic, historic, architectural, scientifically cultural interests.

There is a need for some identification of Ferngull's business and its premises, including a need to identify its carpark and direct its customers to its carpark. (There is another identification sign). There is also a need to make it clear that the carpark is that of Ferngull and not that of Krafted Kitchens so that the customers of Krafted Kitchens will not be attracted on to the wrong premises.

The sign fits into the pattern of advertising of the area as well as the Krafted Kitchens signs or the other ones further down the wall.

The proposed sign does, of course, have an effect on the existing sign that it screens. That is not an effect that causes visual disorder or clutter. It does screen out the sign, but as I have said, I am not satisfied that the existing Kitchens sign has the prior right to dominate part of Ferngull's land or to be viewed across that land if Ferngull wants to make other use of the land."

"The sign will not affect other signs in the locality or their orderly display, except for the sign that it screens."

100. The decision in that case was that the appeal was allowed and a permit was granted for the proposed new Ferngull sign.

101. That case is really essentially the same as with the present one and we consider that a similar result is appropriate.

102. It was submitted that Ferngull could be distinguished on the basis that the Kitchens sign remained at least technically illegal throughout whereas it is asserted that the Boydell sign is legal on the basis of continuing display rights. It is true that there is this distinction although the Kitchens sign could easily have been rendered legal if the decision had been in its favour. We are in a position to say, or at least one of us is, that this distinction would not have affected the outcome in the Ferngull case. It does not affect the principle upon which it or this present case is decided.

103. Mr Cimino, in part 5 of his written report, sought to argue that the proposal should fail on its planning merits. He starts of with the assertion that the signs are "inappropriate" and "detrimental to the amenity of the area" without really explaining why until, at paragraph 5.6, he asserts that the structures to support the proposed sign on the Delta land would be "awkward and ugly", that the creation of a gap between the building and the structures would be inappropriate and that the supporting posts would add to a perception of clutter. In the real context of the situation of this wall and these proposed structures these quibbles about the gap and the supporting posts are insignificant. The effect on the amenity is effectively the same, whether the signs are attached to his client's wall or on the proposed structure.

104. We agree with his criticism in his paragraph 5.7 that the sign at first floor level should not extend beyond the limits of the wall, but this can be dealt with by imposing a condition restricting it appropriately.

105. We will not deal with his 23 paragraphs under part 5 of his written report seriatim as they are repetitive and, apart from scoring a debating point, have, in our opinion, been adequately dealt with already.

106. We have considered whether the decision we have come to, and indeed that reached in Ferngull, is likely to create a flood of applications for new proposed signs to be erected in front of existing signs whereby owners and occupiers of land in situations like that of the Delta land might seek to secure to themselves the economic benefit inherent in their position in relation to adjoining land that at present enjoy advertising exposure by default. This is a possibility, although we trust that the situation inviting such a tactic will be too few to create a flood. Nevertheless, we think that the case should be determined in accordance with correct principles, whether it attracts copycat applications or not. Any subsequent applications would have to be determined on their merits. That would involve, as we have indicated, a consideration and balancing of all relevant matters such as those set out in Clause 18-2. All we are saying is that an existing sign does not constitute a right to prevent a new sign that will obscure it if that is the only relevant consideration and if, from all other relevant planning considerations there is no reason why the proposed new sign should not be approved. That is the situation we find in the present case. We therefore propose to grant the permit sought in Appeal 1997/708 subject to conditions.

107. We note that Clause 7-6.2 as amended by Planning Scheme Amendment S66 adopted on the 11 September 1997 imposes a requirement for a mandatory time limit condition in relation to outdoor advertising signs. For a sign of 18m2 or greater a permit must now state that the permit expires on a specified date which must not be less than 10 years or more than 15 years from the date of the permit unless a local policy included in the Planning Scheme specifies a different expiry requirement. We are not aware of any such local policy. Signs A and B would exceed 18m2.

108. So far as the declaration application is concerned, as previously indicated, no declaration will be made in the terms in which a declaration was sought because of the confusion in those terms between display of advertising on the one hand and use and development of land on the other. Clause 18-5 is the appropriate continuing display provision, rather than the continuing use provisions elsewhere in planning law. In any event, although we think that continuing display rights exist so that such continuing display would be lawful, we do not think that this means that the permit sought for new signs on the Delta land is prohibited. Having regard to the context in which the issue is raised, we do not think that any useful purpose would be served by making a declaration recast in terms of continuing display rights. Indeed, having regard to the permit we propose to grant, such a declaration is probably more likely to create confusion than serve any useful purpose. The declaration application will be dismissed.

Appeal 1997/00708 is allowed and a permit is hereby granted for the erection and display of signs in accordance with the endorsed plans hereinafter provided for and subject to the following conditions:-

No outdoor advertising signs are to be erected or displayed pursuant to this permit until plans to the satisfaction of the Responsible Authority have been submitted to and approved by the Responsible Authority. When approved such plans will be endorsed and will form part of this permit. The plans must be drawn to scale with dimensions and three (3) copies must be provided. The plans are to be in accordance with the plans submitted to and marked as exhibit "B1" at the hearing of Planning Appeals 1997/00708 and 1997/76497 by the Administrative Appeals Tribunal but modified to show:-

(a) the location and dimensions of the proposed supporting structures for the signs;

(b) the reduction of sign "A" so that it does not extend beyond the northern, southern or upper limits of the western wall at first floor level of the building on the land known as

30- 32 Swan Street, Richmond and so that the northern, southern and upper edges of the sign, when looked at in elevation against that wall, will be set back from those respective margins of the wall by not less than 150mm.

The location and details of the sign (including advertisement) must accord with the attached endorsed plan. Any alterations must be approved by the Responsible Authority.

This permit will expire if the use, display or development is not commenced and any development is not completed within one year from the date of this permit.

The Responsible Authority may approve extensions to these time limits if requests are made within 3 months of expiry.

This permit expires ten years after the date it is issued.

No flashing, intermittent, or changing colour light is permitted.

All signs must be constructed and maintained to the satisfaction of the Responsible Authority.

Signs must not be illuminated by internal lights except with the written consent of the Responsible Authority.

Boydell Pty Ltd v Yarra CC & Ors [1998] VCAT 564

At a glance

Court

Decision date

Source

Judgment (182 paragraphs)

Boydell Pty Ltd v Yarra CC & Ors [1998] VCAT 564 (15 January 1999)

Parties