1. The decision of the Responsible Authority is affirmed
2. Planning Permit No. TP1998-945A must not be amended.

Mr Gobbo called Mr S McGurn, town planner of Fulcrum Planners, and Mr J Govenlock, town planner of Urbis.

Mr Townsend called Mr J Holdsworth, architect and urban designer.

Application to amend condition 7 on Permit No. 1998 - 945 dated 19 January, 1999 by extending the expiry date on the permit by ten years.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

Design and Development Overlay Schedule 1 (Area 2 &3)

Permit No. 1998 - 945 was issued on 19 January 1999. The permit allowed the display of an animated promotional panel sky sign. Condition 7 of the permit specified that the permit expires ten years after the date it is issued. The applicant has applied under S. 77 of the Planning and Environment Act 1987 to amend the permit by ten years.

The existing sign is situated on the roof of a 21 level building (the Riverside Apartments) which is located on the north side of Flinders Street, to the east of the intersection with King Street.

The sign is 3.9 m high, and 18 m long, and has an area of approximately 70.9 m2. The sign is animated to the extent that the neon lettering spells out the letters "AAPT" and alternates with the message "smart chat".

The site sits near the northern bank of the Yarra River but is separated from the river by train lines. The Melbourne Aquarium is located to the south of the train lines.

The Southbank mixed use precinct occupies the southern side of the river, opposite the review site.

The site itself is located within an area comprising multi storey office and retail land use and development.

1. The Council first issued a permit for a sky sign on this site in 1991. The sign authorised by that permit was replaced in 1999 by the sign which is currently displayed. The 1999 permit (no. 1998 - 945A) allowed the display of an animated promotional panel sky sign for a period of ten years.
2. The applicant applied to the Council to amend the permit to allow the sign to be displayed for a further ten years.
3. The Council refused the application on the following grounds:
   1. The proposed sign is contrary to the provisions in relation to advertising signs at Local Policy 22.07 and Particular Provision 52.05 of the Melbourne Planning Scheme.
   2. The proposed sign by virtue of its size, location and prominent position represents a significant visual intrusion to the Yarra River Environs and would be detrimental to the amenity of the surrounding area.
4. The applicant has applied to the Tribunal for a review of the Council's decision.
5. In support of its decision to refuse to extend this permit the Council submitted that the site exists at a sensitive location within or abutting the Yarra River corridor and that the policies and provisions of the planning scheme strongly discourage this form of advertising at this location. It was the Council's submission that as a consequence of the implementation of its policies, supported by decisions of the Tribunal, sky signs and major promotion signs are being progressively eliminated from the Yarra River corridor. The applicant on the other hand submitted that an extension of the permit is warranted because the sign forms part of the context of this locality and because an assessment of its visual impact leads to the conclusion that it has no significant adverse impact on the quality of the Yarra River corridor and environs. While it was acknowledged that the planning scheme discourages signs of this type along the river corridor, it was submitted that exceptional circumstances exist which support a ten year extension of the permit.
6. I have concluded that the policies and provisions of the planning scheme provide very clear urban design objectives for the Yarra River corridor. The continued display of this sign is not consistent with the achievement of those objectives. I have not been persuaded that the grant of an extension of ten years for this sign is warranted by the contextual circumstances of the site. Nor am I satisfied that the exceptional circumstances test which forms part of the policy framework has been met.
7. My reasons are set out below.

1. The relevant polices applicable to the consideration of this application are not limited to those concerning advertising signs specifically. The importance of the Yarra River Corridor and its connections to Southbank and the Central City are emphasised throughout the policy framework. A range of built form and land use policies and controls have been applied to enhance the river corridor and its edges. I agree with Mr Townsend's submission that the review site is located within the view shed of the river corridor which is designated in the City Structure Plan as a Major Waterfront Edge and Attraction[1].
2. The review site is also located at the Kingsway entrance into the central city.
3. With respect to advertising signs specifically, the Council's local policy at Clause 22.07 contains a section related specifically to the Yarra River Environs. The policy describes the area as the landscape and recreational heart of Melbourne and its greatest natural asset. Because it is a key tourist destination the policy seeks to ensure that that new signs add interest to the area's tourism and arts characteristics. The objective of the policy is:

To enhance the area's attraction for visitors by preserving the visual characteristics and high amenity of public spaces along the Yarra River corridor, the varied and interesting built form and the intensively used promenades.

1. The policy states that signs should:
   • Contribute to the important recreational and visual characteristics of the Yarra River corridor.
   • Be limited to that required for business identification purposes.
   • Be strictly controlled with particular sensitivity to parkland and promenade areas.
   • Be unobtrusive and complementary to the scale and character of buildings and landscaped areas.
   • Panel, promotion, pole, sky and high wall signs are discouraged on buildings visible within the Yarra River corridor.
2. Clause 52.05-6 requires consideration to be given to the following matters when considering the imposition of an expiry date on a permit for a major promotion sign:
   • The purpose of the sign.
   • The existing or desired character of the area.
   • 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.
   • The extent to which the signage is physically and visually integrated into the architecture of the building.
3. In my view it is also relevant to have regard to the general decision guidelines for major promotion signs at Clause 52.05-6 because these identify the preferred location for major promotion signs and they also establish principles with respect to assessing their impact. In broad terms these signs are encouraged in commercial and industrial locations and they are discouraged along forest and tourist roads, scenic routes or landscaped sections of freeways. Major promotion signs are also discouraged within open space reserves or corridors and around waterways. The decision guidelines also require proposals to be assessed in terms of their impact on significant streetscapes, buildings and skylines, the visual appearance of a significant view corridor, viewline, gateway location or landmark site identified in a framework plan or local policy. The impact on residential areas and heritage places, open space and waterways is also required to be assessed[2].
4. I have formed the view that because of the sign's location within the environs of the Yarra River corridor and at the King Street entrance to the central city, it is a sign which is not supported by the policy framework and the planning scheme provisions relating to the display of major promotion and sky signs.

Are there exceptional circumstances which warrant an amendment to the permit?

1. Having determined that the planning scheme discourages this form of advertising at this location, it is necessary for me to conclude that exceptional circumstances exist in order to direct that the permit be amended to extend the life of the permit.
2. It was the evidence of Mr Govenlock and Mr McGurn that the context of this site, the nature of the sign and its integration with the architecture of the building, combined with the fact that this or a similar sign has existed on this building since the early 1990's, is sufficient to warrant an amendment to the permit. It was their evidence that the sign now forms part of the context and that in any event it has a limited visual impact.
3. It was Mr McGurn's evidence that the loss of the sign would have a negative visual impact when viewed from the south at night because it is a sign which adds interest and vitality to the night time views of the central city. It was his evidence that during the day the removal of the sign would be a neutral outcome because while it is a sign which has some impact it is viewed in the backdrop of the central city built form and the impact is not significant.
4. I note that Mr Holdsworth disagreed with Mr Govenlock and Mr McGurn about the visual impact of the sign, and described it as "....an anomaly in the urban landscape of the southern presentation of the CBD's buildings, and is becoming more so as this vista continues to mature as a composition of architectural forms".[3]
5. While I agree with Mr McGurn and Mr Govenlock that the sign has a limited visual impact, the assessment of the sign is to some extent a matter of subjective opinion. I suspect that there are some people who consider it to be intrusive and discordant. Other people are probably indifferent to its existence while there may be people who do consider that it adds something positive to the locality. The contradictory evidence presented to me in this case reinforces my view that a variety of opinions about the sign can be legitimately held.
6. Of course my subjective opinion about the sign is irrelevant. My task is to determine whether exceptional circumstances exist which ought to override what I have found to be the very clear policy directions about the development of the Yarra River corridor and its environs, and the role of advertising in the river corridor.
7. On balance I think Mr Holdsworth is correct when he describes the sign as an anomaly. The existence of the sign and the fact that it is one of very few sky signs and major promotion signs which are visible from the river corridor is not of itself an exceptional circumstance. It is however a reflection of the successful implementation of policy over a long period of time. The implementation of the policy has in effect eliminated signs of this type from this important locality and this is precisely the outcome sought to be achieved by the planning scheme.
8. In my view the success of the planning scheme policies cannot be used as a basis for establishing an exceptional circumstance to justify the retention of a sign which does not accord with those polices.

1. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be affirmed and the permit not amended.

[2] In a recent decision VCAT reference No. P356 2009 Caption v Melbourne CC dated 23 September, 2009) the Tribunal extended a permit for a major promotion sign for 25 years. The Tribunal relied on the decision guidelines to form the view that the sign in that case was located where the planning scheme encouraged such signs to be located.

[3] Statement of evidence of Mr J Holdsworth presented to the Victorian Civil and Administrative Tribunal, 13 August, 2009, page 12.