1. Pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1987, ConnectEast Pty Ltd is joined as party to the proceeding.
2. In permit application No. PLN09/0430, the decision of the Responsible Authority is affirmed. A permit is not granted.

Afua Adjei, Town Planner, City of Greater Dandenong

Juliet Forsyth, Barrister, by direct brief. She called Andrew Clarke, Town Planner, and Henry Turnbull, Traffic Engineer to give evidence.

A major promotion, panel, floodlit sign with two display boards mounted on a V-shape structure supported by a column approximately 11.1 metres above the ground level and a total height of 15.35 metres. Each display board is 12.66 x 3.35 metres lit by 4 x 400 watts floodlights. The display boards face north and south.

It is on the eastern edge of the property with the tip of the V shaped panels abutting the eastern boundary of the land. It is separated from Eastlink Reservation by a 5 metre bicycle path and located 100 metres north of Cheltenham Road.

Clauses 11, 18.01, 19.03, 21.04-3, 21.05-2, 22.03, 52.05 and 65.

The site is on the north-east corner of Popes Road and Bridge Road, Keysborough. It is irregular in shape, with a frontage of 42 metres, an average depth of 60.38 metres, and a site area of 1748 sq m. It is developed with a single storey industrial building towards the west side of the land. Apart from the building, there is a monopole telephone tower on the north-east corner of the land.

The site abuts the EastLink Motorway and separated from the land by a 5.8 metres (scaled) wide bicycle path. It is at the eastern edge of an industrial area along Bridge Road and west of Bridge Road.

EastLink is a recently constructed north-south tollway operated by ConnectEast between Ringwood and Seaford.

1. The permit applicant proposes to erect a double sided major promotional sign at the eastern edge of the land. The responsible authority has failed to issue a permit within the prescribed time. As the permit applicant has lodged an application for review, the Tribunal must decide whether to grant a permit, and if so, what conditions to apply.
2. Were it in a position to determine the application, Council would have refused it on the grounds of the sign being detrimental to the safety of road users of EastLink; failing to meet the objectives of Clauses 21.04-8, 22.03, and 52.05; the size and location of the sign are such that it is dominant to the site and skyline of the area; and the proposed sign contrary to Council's "Code of Practice - Advertising Signs".
3. Having heard the submissions and evidence, assisted by my inspections of the site, and having regard to the provisions of the Greater Dandenong Planning Scheme "the Scheme", I form the view that the grounds of refusal relating to visual impact and policies are justified, and that a permit should not issue.
4. The main issues of the review are whether the proposed sign is supported by the relevant policies of the Scheme; whether it constitutes a traffic hazard, and whether the sign by virtue of its size and location a dominant structure that would adversely affect the visual amenity of the area and aesthetic experience of the motorway.
5. I record leave granted to join ConnectEast as party to the proceeding. Ms. Forsyth opposed joining ConnectEast as her client would be prejudiced and disadvantaged. She cited a decision by Deputy President Dwyer[1] where a third party was not joined because the permit applicant would be more prejudiced. Council did not oppose ConnectEast to be joined as party but opposed an adjournment as a result of joining ConnectEast.
6. Having heard the submissions of the parties and considered the case referred to by Ms. Forsyth, I joined ConnectEast as party to the proceeding pursuant to Sec. 60 of the Victorian Civil and Administrative Tribunal Act 1998. I consider the circumstances of the quoted case[2] as not applicable.
7. Ms. Forsyth requested a number of documents from ConnectEast[3], which Mr. Jewell replied that most are not ConnectEast documents. He undertook to circulate their design guidelines for such signs, a copy of which was received by the parties and the Tribunal before the second day of hearing.

What are the policies and provisions informing the assessment of the proposal?

1. Clause 52.05 is the governing provision for outdoor advertising in the Scheme. The purpose of this clause is:

To regulate the display of signs and associated structures.

To provide for signs that are compatible with the amenity and visual appearance of an area, including the existing or desired future character.

To ensure signs do not contribute to excessive visual clutter or visual disorder.

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.

1. Clause 52.05-3 sets out the decision guidelines for advertising signs. For major promotion sign, of which the proposal is one, there are further guidelines in Clause 52.05-6. The purpose of major promotion sign is:

To achieve high quality visual standards for the siting of major promotion signs.

To ensure that the signs are not detrimental to the appearance of their surroundings or the safe and efficient operation of the route through the application of consistent planning controls.

1. In deciding an application and in addition to the decision guidelines in Clause 52.05-2 and 65, the Responsible Authority must consider, as appropriate:
   • The effect of the proposed major promotion sign on:
     • Significant streetscapes, buildings and skylines.
     • The visual appearance of a significant view corridors, viewlines, gateway location or landmark site identified in a framework plan or local policy.
     • Residential areas and heritage places.
     • Open space and waterways.

When determining the effect of a proposed major promotion sign, the following locational principles must be taken into account:

• Major promotion signs are encouraged in commercial and industrial locations in a manner which complements or enhances the character of the area.
• Major promotion signs are discouraged along forest and tourist roads, scenic routes or landscaped sections of freeways.
• Major promotion signs are discouraged within open space reserves or corridors and around waterways.
• Major promotion signs are discouraged where they will form a dominant visual element from residential areas, within a heritage place or where they will obstruct t significant viewlines.
• In areas with a strong built form character, major promotion signs are encouraged only where they are not a dominant element in the streetscape and except for transparent feature signs (such as neon signs), are discouraged from being erected on the roof of a building.

1. With regard to policies in the Scheme, there is no specific policy for outdoor advertising. There are, however, policies on design of buildings and structures, including those along major roads. Clause 18.01-2 acknowledges that "development of land near an existing or proposed transport rout should be planned or regulated to avoid detriment to, and where possible enhance, the service, safety and amenity desirable for that transport route in the short and long term"[4].
2. Clause 21.05-2 in the MSS is the policy guiding urban design, character, streetscapes and landscape. It is an objective of this clause to facilitate high quality architecture and development which has regard for the surrounding environment and built form. With regard to major promotion sign and sky signs, it is policy to[5]:

Ensure major promotion and sky signs along road corridors are appropriately spaced so as not to dominate the overall setting and to minimise impact on viewing corridors/major view lines.

1. The last relevant policy is Clause 22.03 Urban Design in Commercial and Industrial Areas. This policy is relevant not only because the site is located in an industrial area, but that this policy also provide guidance for development in industrial areas along major roads.
2. This policy is to encourage new buildings along main roads to contribute significantly to the image of the route by:
   • Fronting all buildings onto the route to maintain visual interest, encourage street activity and enhance public safety for pedestrians and cyclists.
   • Ensuring that new buildings are in scale with the dominant pattern of the area.
   • Matching the dominant setback from road frontages.
   • Using building materials that complement the dominant materials used in the area.
   • Using building materials that do not reflect light or glare to the detriment of road users.
3. This policy went on to specify setback and landscaping design standards for specific industrial areas. According to the map for this clause, the land is in Area 2 and in the 'Balance of Land in Area 2'category[6]. This policy recommends a garden strip of at least 3 metres wide along the frontage to a road or road reserve located east of Chandler Road. As the site fronts onto a road that is east of Chandler Road, this policy is for a garden strip of 3 metres along this road reserve.
4. Based on the provisions and policies outlined above, Council submitted that the proposal is contrary to these provisions because the proposed sign would be detrimental to the surrounding area, would dominate the site and skyline, add to the existing signs within the immediate area, and impact adversely on the character of the existing industrial landscape. It argued that the sheer height and span of the display panels in the context defined by lower buildings will contribute enormously to the visual dominance of the site and not respectful of the scale of the building and area. Further, it is of the view that the sign would be a dominant element to the site and wider context. Comparing it to the mobile phone tower to the north, it contended that at least that structure is a monopole and its impact on the skyline minimal. Its height equivalent of more than three times the height of the existing and nearby industrial buildings is considered by Council to be a dominant structure in the wider industrial area. It concluded that it would have profound visual impact on the landscape, and contrary to its "Code of Practice - Advertising Signs", a reference document of Clause 22.03-4.
5. Mr. Jewell's submission included an assessment of the proposal against Clause 52.05-3 and 52.06. It concluded that it conflicts with the particular landscape of the motorway, being a discordant element in a deliberately and consciously designed freeway that has many facets in terms of visual amenity. He also submitted that the proposal would disrupt a well considered and modest signage approach to the freeway corridor; impose a dominant element on the public realm; and that it has no apparent relationship to its setting. With regard to the decision guidelines for major promotion sign, he submitted that all signs along the motorway under the control of ConnectEast are of a high design standard and custom designed. He compared the motorway as the relevant streetscape to be considered. In that case, the proposed sign will diminish the visual appearance of the streetscape and associated driving experience.
6. Mr. Clarke's evidence, however, outlined the visibility of the proposed sign from various locations on the freeway. He considered it an appropriate sign against his interpretation of the decision guidelines of Clause 55.05. This assessment is more based on the impact of the sign on the industrial area than as an overall driving experience along EastLink. Further, his assessment against Clause 21.05-2[7] is based on the individual strategies of the clause rather than how the proposal achieves the objective of a co-ordinated approach to "design and placements in commercial, industrial and residential areas and along road corridors". The notion of a co-ordinated approach to signage along EastLink was Mr. Jewell's argument against the proposal. He submitted that display of signage along the motorway was part of a co-ordinated urban design approach undertaken by ConnectEast.
7. I find Mr. Clarke's analysis somewhat lacking against planning policies such as Clause 22.03 (Urban Design in Commercial and industrial Areas) which made direct reference to signage along major routes. Whilst his evidence made reference to Clauses 18.01 and 19.03, they were not reviewed in depth. His evidence is more a justification of the proposal than an analysis of the merits of the proposal against all aspects of the Scheme.
8. To determine whether the proposed sign is a dominant element in the streetscape that is the motorway, I accept Mr. Jewell's submission that the impact of the proposal is on EastLink and should be gauged as part of a driving experience along this motorway than how this sign relates to the industrial area it is located in. The point of the sign is to primarily attract motorist attention on the motorway than the workers in the industrial area. After all, to read the sign from the site means raising one's head to an acute angle and still probably unable to read the whole message on the board because of the angle. Even if the proposal is considered in the context of the industrial area it is located, it bears no relationship to the area and stands above and in isolation of the built form of the area, which is comprised of single storey commercial or industrial buildings, hence contrary to Clause 22.03.
9. In all and in terms of policies, I am not persuaded that the proposal is consistent with Clauses 18.01, 19.03 (with regard to not enhancing the public realms), 21.05-2 and 22.03.
10. Clause 21.05-2 promotes the concept of a co-ordinated approach to signage along main roads. This is Mr. Jewell's argument: that all signage along the motorway is part of an integrated urban design exercise for the motorway: the landscaping, the artwork, and custom designed and built billboard type major promotion signs. Approval for these signs is subject to a set of design criteria[8] involving Victoria's State Architect.
11. However, ConnectEast has control over land reserved for the freeway but not those that abut the reservation. The review site is an example. There are many examples of industrial estates abutting the freeway under similar circumstances where ConnectEast has no control. This means that despite conscious design concepts and best laid out plan to co-ordinate signage along the motorway, it has no control over these other land. Signage approved through the planning permit process outside the reservation will be in addition to those planned and approved for ConnectEast in conjunction with State authorities. Mr. Jewell advised that this permit application has alerted ConnectEast to the fact that signage outside the motorway reserve can detract from the overall urban design of the motorway. He advised that ConnectEast will be meeting all councils along the motorway with a view of a planning policy to ensure an acceptable quality of signage along its length.
12. Despite this initiative, the planning permit process at present stands separate to ConnectEast's process, not bound or limited by it. A permit will be assessed on the merits of the proposal against the Scheme.
13. In terms of the visual impact of the proposal, I agree with Mr. Jewell that it should be considered in the context of the motorway than the industrial area it is located. Given the speed of traffic and the objective to ensure continuous flow of traffic[9] on the road, the impact of the proposal should be considered as part of the driving experience of the motorway as well.
14. My inspections of the site and from drives along EastLink were that the proposed sign has little to do with the industrial area it is located in. Its location on the edge of the industrial area, its proximity to the motorway, its height and size of the display boards facing the road, and its lack of connectivity to the host site and surrounding industrial premises, gives an impression that it is unrelated to the industrial area. It is not a building structure encouraged for the area according to Clause 22.03. I also agree with Council that it is futile to compare the proposal to the mobile phone tower to the north also on the same land. The height of the tower may be higher, but it is a single pole. It does not have the surface area of 12.66 x 3.35 metres and illumination facing traffic both ways that demands attention above the eye level. It is more than that the sign is visible, it is the extent and commanding of attention due to its positioning and sheer size at close proximity to a driver that makes it a visually dominant structure for motorists. It dominates its setting.
15. The motorway is a fairly recent construction. The topography throughout its length is flat towards the southern half and of gentle undulation, if any, at its northern end. The alignment of carriageways is straight with gentle curves, with one near the site northbound pass the Cheltenham Road overpass and tollgate. Overall, the view from the freeway on surrounding areas is one of open landscape, and at parts picturesque. Features that dot the freeway are road overpasses, pedestrian overpasses at the northern end with conscious designs using bright colours, and noise barriers protecting residential areas in different materials, designs and colours, and single storey industrial buildings of abutting industrial areas. Artworks can be founded along its length. I get that they are to give visual interests to the driving experience and special meaning reflecting aboriginal, floral and cultural background of the area that the motorway traverses. There is currently billboard type promotion signs which are EastLink approved. They have common design and construction features such as their frames and the black wire-mesh around their supporting columns. I take these efforts as demonstration of a conscious attempt to create visual interest and give it an aesthetic edge as compared to just a freeway.
16. Against the existing conditions of the motorway, I form the view that the sign, due to its size, location and height, is a dominant structure that does not relate to its industrial neighbourhood. It disrupts the streetscape that is the motorway and dominates the visual amenity of this part of the motorway. It is an element that causes a visual disorder to the pattern of development and scale of structures in the area. It detracts from the visual experience of this part of the motorway. Council's ground of refusal relating its visual impact on the area and EastLink is justified.

Whether the proposed sign poses traffic hazards and users of EastLink?

1. A second issue was that the proposed sign would be detrimental to road users of EastLink. When the application was referred to VicRoads[10], VicRoads objected on safety grounds and suggested that the application be sent to Connecting Melbourne Authority which is the owner of EastLink.
2. Mr. Jewell tabled a letter from GTA, traffic consultant, which suggested that the proposed sign may cause safety concerns for road users. The author of the letter was not called to give evidence. That letter is not regarded as providing expert opinion.
3. Ms. Forsyth called Mr. Turnbull, traffic engineer, to give evidence. His opinion was that the sign would not affect the traffic signage nearby, and that the proposed sign satisfies VicRoad's 10 Point Safety Checklist. Therefore, it would not present a road safety hazard.
4. I accept Mr. Turnbull's evidence that the proposed sign is unlikely to affect the safety of drivers using EastLink, and that the ground for refusing the application on this basis is not proven.

1. For the above reasons, my finding is that the proposed sign detracts from the visual amenity of the area and EastLink, not one that is consistent with the design policies of the Scheme. A permit is not granted.

[2] P446/2010 was based on an earlier review P3399/2009 where Deputy President Dwyer refused to join a party to the proceeding. My reading of that decision was that the circumstances are vastly different. In that case, it was a review against a notice of decision to grant a permit. If not for a request to be joined as party, the proceeding was to be withdrawn by the primary applicant for review a permit to issue. Deputy President Dwyer also considered the party requesting to be joined a commercial competitor, and should have known of the permit application at an earlier time and sought to participate at an earlier date. He ruled that the permit applicant would be more prejudiced. This is a case that Council would have refused the application. The application was not notified as Council considered it exempt. The application was referred to VicRoads who objected and advised Council to refer the application to Linking Melbourne Authority/ConnectEast who is the operator of East Link. Linking Melbourne Authority objected to the application.

[3] Documents requested were: Assessment reports for all 10 ConnectEast approved promotion signs by relevant government departments; internal assessments by LMA (Linking Melbourne Authority) for these signs; criteria in the selection of sites for signs; tender documents for such signs along EastLink; and design guidelines for such signs.

[4] Clause 18.01-2 General Implementation, Page 1 of 8.

[5] Clause 21.05-2 Point (9.3), page 3 of 5.

[6] This policy applies to all buildings and works in the area, including car parking spaces and associated access lanes, and land at least 9 metres from land in a Road Zone Category 1, or a Public Acquisition Overlay if the purpose of acquisition is for a Category 1 road. The site is located in Area 2 of the map and the site abuts EastLink which is affected by the Public Acquisition Overlay Schedule 3 and EastLink is in a Road Zone Category 1.

[7] Page 26 of his statement of evidence

[8] A copy of which was filed and served before the second day of hearing.

[9] On both days of inspection, slow traffic and stopping to take notes received a visit from EastLink vehicle.

[10] The application was not required to be referred as the proposed sign is not animated nor internally illuminated.