1. The decision of the responsible authority in relation to permit application no. KP - 282/10 is set aside.
2. A permit is granted in relation to land at 34 Nepean Highway, Mentone. The permit will allow the erection and display of an externally illuminated, pole mounted, major promotion / sky sign (V shaped double sided) in accordance with the endorsed plans.
3. The permit is subject to the conditions contained in Appendix 1 to these reasons.

Ms Juliet Forsyth, Barrister on direct brief. She called the following witnesses:

• Mr Stuart McGurn, Town Planner of Environmental Resources Management Pty Ltd (ERM)
• Mr Aaron Walley, Civil Engineer of Cardno Grogan Richards.

Ms Julianne Saxty, Town Planner of Hansen Partnership

VicRoads, Sally Downs, June Morley, e and C McIntyre

Renewal of a planning permit for an existing V shaped double sided, externally illuminated major promotion sign that is pole mounted. The sign sits over a single storey building located on the site. The sign is proposed to be 13.34m high with two display areas, each having dimensions of 12.66m x 3.35m.

Application under Section 77 of the Planning and Environment Act 1987.

Cl 52.05 - 1 display of major promotion sign with reference to Category 2 of the clause.

The site sits at the south corner of Winsome Street and Nepean Highway. It has a 15.24m frontage to Nepean Highway and 36.58m frontage to Winsome Street. It also has rear access to a laneway. The site is occupied by a single storey St Vincent De Paul shop and currently has a 13.35m high V shaped, pole / major promotion sign located above the premises.

I inspected the site and surrounds after the hearing on 3 May 2011.

Wyndson Pty Ltd v Kingston CC [2000] VCAT 699 (31 March 2000)

Monsien Developments v Ballarat CC [2006] VCAT 2261 (3 November 2006).

Spencer v Moorabool SC [2006] VCAT 1595 at appendix 1)

Josh Holdings Pty Ltd v Kingsston CC [2008] VCAT 2370

1. In March 2000 The Tribunal directed a permit issue for a major promotion sign at 34 Nepean Highway, Mentone[2]. This permit has expired and Caption Pty Ltd now seeks a new permit for the sign to be displayed for a further 25 years. Kingston City Council has refused to issue a new permit. This is a decision that is supported by three residents in Flinders Street, south of the site.
2. From submissions made I find the key issues I need to determine are;

1. Does this permit application need to be assessed differently to a new sign application? 2. Will the sign affect the visual amenity of the general area?

1. Does it result in unreasonable visual intrusion into residential properties?

1. Are there any other reasons why a permit should not issue?
2. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Kingston Planning Scheme, I have decided to set aside the decision of Council and direct a permit issue. In doing so I have also determined the permit should be granted with conditions including that it should expire in 15 years. My reasons follow

Does this permit application need to be assessed differently to a new sign application?

1. Ms Forsyth submitted that substantial weight should be given to the fact that the Tribunal has previously approved this sign. She submitted that as such the renewal assessment should focus on any change substantial change in circumstances since the issue of the permit in March 2000 not on an assessment of the merits of the sign from first principles. Regardless of this, she also provided evidence of Mr McGurn based on first principles.
2. I agree with Ms Forsyth to the extent that as with the case of a repeat appeal, any change in approach by the Tribunal needs to be based on either changes in the application, a change in circumstances or a change in the interpretation of the facts or law relevant to the case[3].
3. In this instance there is little that has changed on the site or surrounding area. It was noted that re-development of the Nylex site to the east has now been through a planning scheme amendment process, however, this has not yet resulted in 'on ground' development. It was also mooted for development prior to 2000 so would have been known as a development site to the Tribunal in its previous determination.
4. I was also provided with information that a request by Council to cancel the existing sign permit was dismissed in April 2001 with consent of parties. I was advised that this application to cancel the permit was sought after Council acknowledged that some nearby residents had not been notified of the permit application that was the subject of review by the Tribunal in 2000. Whilst I am not aware of the details of this cancellation request, written submissions of residents in Flinders Street, notably that of Ms Morley indicates that it would appear to have arisen from failure to notify the residents in Flinders Street. Three residents responded in writing to the review application before me, all providing similar comments.
5. I am satisfied that the general context of the site and application has not altered since the granting of the first permit, although there is clearer acknowledgement that local residents in Flinders Street find the sign dominating. The similarities between the original permit, the findings of the Tribunal at that time and the application before me are important influences on my decision, but I find the do not lead to automatic renewal of the permit. As Member Rickards stated in Spencer v Moorabool,

The tribunal is not prevented from hearing a repeat appeal in relation to the same application regarding the same land. The tribunal also has to consider each matter on its own merits. Each preceding that comes before the tribunal is a complete re-hearing. The tribunal is not bound by its previous decisions but that does not rule out the tribunal in its discretion in exercising its administrative functions giving due weight to its earlier decisions in respect of the same use on the same land[4].

1. I therefore have assessed the application before me based on the provisions of the planning scheme as exist today and the submissions of parties. In doing so, however, I have given due weight to the previous findings of the Tribunal about this site.

Will the sign affect the visual amenity of the general area?

1. Ms Saxty submitted the sign is located in an area already saturated with business identification signs, so permitting this sign would lead to clutter and an over proliferation of signage in the area. In doing so she noted that the majority of existing signage along the Highway was business identification signage, not promotional signage that should be limited to avoid visual clutter and the proliferation of an advertising strip[5].
2. Mr McGurn commented that planners appear to have a natural aversion to promotional signage. This is borne out in Council's local policy where it expressly states "Kingston has a significant number of sites where major promotional signage is displayed and will therefore discourage additional major promotional signage"[6].
3. A key tenant of planning in Victoria is to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria[7]. I agree with Mr McGurn's assertion that planners generally dislike promotional signage. I find this derives from the objective to avoid built form and visual display that detracts achieving a 'pleasant' environment.
4. The provisions of the planning scheme[8] direct that signs should be compatible with the amenity and visual appearance of an area. This is consistent with the objective to achieve a pleasant environment. Advertising signs are then restricted according to their type and the location. The most stringent restrictions of the planning scheme are placed on promotional signage. This would suggest that the planning scheme places promotional signage as having greatest impact on visual amenity. In saying this it is perhaps not so much that promotional signage has a greater capacity to be more visually dominating than a business sign, but that this impact can be less justified in context of balancing competing needs of the planning scheme. A business sign, may add to visual clutter and potentially reduce visual amenity, but may also have some clearly defined benefits to the community by identifying and providing direction to a business on site. It is not so easy to define what net community benefit derives from a promotional sign as its primary aim is to purposefully distract a person's view from their general vista to the sign so as to promote the product displayed on the sign. I find it is therefore understandable that the reasons for accepting a promotion sign are more difficult to find than for a business identification sign and correlate with their greater restriction in the planning scheme.
5. Having said this, major promotional signs are a legitimate use in the planning scheme and one that is encouraged in commercial and industrial locations, in a manner that complements or enhances the character of the area.
6. Hence, whilst major promotional signs may be discouraged by local policy, I agree with McGurn's evidence that this does not mean they must be refused in all instances. The local policy 'discouragement' must be balanced against the controlling provisions for advertising that states such signs are 'encouraged' on sites such as this[9]. In this location, as previously found by the Tribunal in 2000, I find the proposed sign would not appear out of scale with the existing landscape elements.
7. Whilst the sign sits above its host building I agree with the previous findings of the Tribunal in Wyndson Pty Ltd v Kingston one needs to look beyond the host building to the wider locality. In this context the sign does not dominate, overwhelm or significantly detract from the Nepean Highway corridor in this location where there are other large advertising forms including the Bunnings Warehouse building opposite and other car yards and other restricted retail and commercial buildings that all include extensive compatible areas of advertising. I reiterate with Member Moles' comments in 2000 that I cannot see that the proposed major promotional sign would be out of character with that other signage by virtue of its size, or the boldness of the advertising display.
8. Ms Saxty also drew my attention to two other proposals in the nearby area[10]. One for a car wash in the residential area, some 500m north of the site and one for a promotion sign at the edge of the residential area. I find neither of these comparisons relevant to the case before me given their residential location on the highway.

Does it result in unreasonable visual intrusion into residential properties?

1. Ms Saxty submitted the sign did present a visual intrusion into the nearby residential area. In doing so she tabled photographs provided to her from Council, taken by residents in Flinders Street. As the permit applicant noted, and as printed in various date stamps on the photos, these were taken in July and September 2000 prior to changes occurring to the sign in accordance with the Tribunal consent order of 18 April 2001.
2. My inspection of the site concurs with submission and evidence of Mr McGurn that the sign, whilst visible from Flinders Street is not so dominating as presented in these photos. I also note that some residences appear to have taken steps to ameliorate the view of the sign by planting shrubs along their rear boundaries, restricting the view of the sign over time.
3. The key question is whether the sign is so dominating that it provides an unreasonable intrusion to these properties. I am satisfied that during the day the sign, whilst visible from some rear yards in Flinders Street, it is in a context where commercial form may be expected to exist. Whilst this form is a display sign rather than a wall of a building, it is over 50 metres away from the rear of the most affected properties in Flinders Street. I am therefore satisfied that reasonable daytime amenity can be maintained.
4. The dominance of the sign, however is exacerbated at night when the sign is illuminated and therefore stands out against the night sky. I accept that this can be improved with new format fluoro lighting as proposed by Mr McGurn and supported by the permit applicant. Ms Forsyth submitted the luminance of the sign with this modified lighting was no greater than that of the moon. However, the moon takes a very small portion of a night view, and often is not visible at all depending upon its location in the sky or cloud cover. The sign however, will sit at a lower, closer and larger form than the moon on all nights. Unlike the day view it will sit against a contrasting background and less capable of being screened by vegetation due to the luminance through foliage.
5. Given the location and general separation between the signs and affected residential properties I find the impact is not so great as to warrant refusal of the application, however, I agree with Mr McGurn that better residential amenity can be ensured by restricting the lighting of the south east face of the sign at night by a curfew between 11pm and 6am. This can be achieved through a condition on permit to restrict the hours of illumination.

Are there any other reasons why a permit should not issue?

1. Residents of Flinders Street provided written submission that the mobile phone tower that has been placed on top of the sign has added to the visual intrusion and adds to the reasons why a new permit should not issue.
2. Whilst I accept the tower does add to the clutter it is a use and development that is exempt from a need for a planning permit. I therefore cannot assess it as part of the permit application before me, which is for a major promotion sign.

1. I am satisfied that whilst the sign adds to the visual distractions of the area, it is not so detrimental as to warrant refusal of the application. Major promotion signs are a legitimate form of development, contemplated by the scheme for commercial areas. I find the scale and height of the sign to be commensurate with its highway location and not so dominating to the residential area to the south that it should be refused.

1. Having determined a permit should issue, I need determine what conditions are appropriate to the permit. I find the restriction on night time use appropriate for the south east facing sign given the dominance of this view at night residential properties. Further I find that improvements proposed by the applicant including updated fluoro lighting to reduce and even out the luminance can improve the view from residential areas as well as the screening of the rear and undercroft of the sign with updated mesh finish. I find this should be black or similar recessive colour to reduce any reflection that may arise with a white or light colour.
2. In assessing the application, Council notified VicRoads of the proposal as an interested party. VicRoads advised in writing that it did not object to the permit being granted provided conditions were imposed including that the sign expire after 10 years.
3. Ms Saxty submitted Council supported this expiry date based on the comments of VicRoads. In summary the VicRoads letter indicates it considers the permit should be restricted to 10 years because:

1. The sign may become a road safety hazard due to its primary purpose to attract the attention of motorists. 2. A change in the local environment may change the effectiveness on of the site and potentially its effect on road safety.

1. The local area may change, including the potential for traffic lights to be located nearby.

1. As no works are proposed in the renewal application a permit for the minimum time would not affect the viability of the proposal.
2. Ms Forsyth submitted the new permit should be issued for 25 years based on Mr Walley's evidence that there have been, and are no traffic control problems that can be attributed to the sign. The only likely change in the short to medium term is the development of traffic signals associated with the Nylex site redevelopment. I accept Mr Walley's evidence that sight lines between the sign and potential traffic entry points to the Nylex site are acceptable. My inspection of the site and surrounds concurred also with his evidence that the sign does not predominately stand out or significantly distract motorists travelling along the highway.
3. I further note that some minor works are proposed in the renewal application and there are costs associated in renewing the permit. In deed this cost and uncertainty to all parties in constantly renewing a permit is a factor that sways me toward a longer rather than shorter life for the permit.
4. When considering the imposition of an expiry date on a permit for a major promotion sign, Clause 52.05-6 requires me to consider:

1. The purpose of the sign. 2. The existing or desired character of the area.

1. The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies in terms of the extent to which the proposed sign is consistent with any relevant policy direction and the extent to which the area may be expected to change over time.

1. The extent to which the signage is physically and visually integrated into the architecture of the building.
2. The existing character of the immediate area is restricted retail in which such signs are encouraged and the policy framework of the planning scheme does not contemplate any significant change to the built form or land use character of the area.
3. The existing sign is somewhat integrated into the building at least to the extent that support structures are not prominent and can be improved through alterations proposed as conditions to the permit. I do note however, that the site on which the sign is located contains a modest building by comparison to others in the area and, with the development of the Nylex site may well be redeveloped for a more substantive building form that may impact the viability and appropriateness of the sign.
4. The existing policy framework and directions does direct that impacts on residential amenity should be minimised. In this regard I am mindful that a degree of impact has been acknowledged by this sign and, with the renewal permit before me, updated technology and building materials have been able to be applied to the sign to reduce these impacts.
5. Hence, whilst I see no need to reduce the standard 15 year time limit provided for in the planning scheme, I likewise find no compelling reason to extend the permit beyond this standard. This can enable a further review of the circumstances of the area in a reasonable time period.
6. I therefore will maintain a 15 year time limit as mandated by the planning scheme.

The erection and display of an externally illuminated major promotion / sky sign / pole mounted (V shaped double sided) above an existing building on the site in accordance with the endorsed plans.

1. Within 3 months of the date of this permit amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the endorsed plans dated 26/6/2001 but modified to show generally in accordance with the plans circulated to the Tribunal dated 10/4/2011:

1. screening or cladding to the rear of the structure in black or similar recessive colour; 2. screening or cladding underneath the sign structure in black or similar recessive colour; and

1. replacement of the gantry lights with "fluoro lighting" generally in accordance with the report of Norka Lighting Sales dated 27/4/2011.
2. The location and details of the sign shown on the endorsed plans, must not be altered without the prior written consent of the Responsible Authority.
3. The works required to the existing sign to bring the sign into compliance with the endorsed plans must be completed within 6 months of the endorsement of those plans. The responsible authority may extend this time period to commence and complete works if a request is made in writing.
4. Once the works required to the existing sign to bring the sign into compliance with the endorsed plans have started they must be continued and completed to the satisfaction of the Responsible Authority.
5. External illumination of the south east facing display panel must be set to a timer switch to turn off between the hours of 11pm and 6am the next day.
6. The sign must be located wholly within the boundary of the land.
7. The sign must be maintained to the satisfaction of the Responsible Authority.
8. The sign must not be animated or contain any flashing or intermittent light.
9. The lighting of the sign must be designed so as to prevent any unreasonable impacts on adjoining and nearby residential land.
10. The sign must not:

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

1. Be able to be mistaken as an instruction to drivers.
2. This permit will expire fifteen (15) years from the date of issue.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Wyndson Pty Ltd v Kingston CC [2000] VCAT 699 (31 March 2000)

[3] As referred to by Ms Forsyth in Monsien Developments v Ballarat CC [2006] VCAT 2261 (3 November 2006).

[4] Spencer v Moorabool SC [2006] VCAT 1595 at appendix 1)

[5] As directed by local policy cl. 22.15 - 3 (restricted retail)

[7] Objective c) as set out in Section 4 of the Planning and Environment Act and detailed in Cl. 10 of the planning scheme.

[10] Josh Holdings Pty Ltd v Kingsston CC [2008] VCAT 2370 and an undecided case before the Tribunal heard 14 April 2011 for a sign at 2 - 4 Nepean Highway.