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[2022] VCAT 259
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2022-03-09
Original judgment source is linked above.
Kingston Planning Scheme; Section 77 of Planning and Environment Act 1987; Industrial 1 Zone; DDO5; Clause 22.08; Proposal for electronic major promotion sign and floodlit sign; Site adjacent to recently constructed Mordialloc Freeway; Site opposite Braeside Park; Visual impacts; strategic setting and suitability of location; Road safety and whether particular concentration is required.
Citizen Outdoor Pty Ltd v Kingston CC [2022] VCAT 259
1 In application P1449/2020 the decision of the responsible authority is affirmed.
2 In planning permit application KP-2020/241 no permit is granted.
Mr Panos Nickas - solicitor and town planner of Nickas Legal
Erection and display of a major promotion sky sign with one electronic face and one floodlit (static) face. The sign is to be free-standing on a pole with an overall height of 13.7m. A ladder is to be affixed to the pole's upper portion. Its two faces are arranged in a V-formation commencing 8.51m above ground level. The display area of 96.79sqm to each sign face is identical, being 18.65m x 5.19m including a logo box along the bottom edge.
Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit.
Design and Development Overlay - Schedule 1 (DDO1)
Clauses 52.05-2 - Construction and display of an electronic major promotion sky sign and floodlit sign.
Located on the east side of Woodlands Drive with a rear boundary abuttal to the Mordialloc Freeway, this 9,830sqm site is developed with two warehouses with a carpark at the rear.
Unaccompanied inspection between the first and second hearing days and subsequent to the hearing after construction of the Mordialloc Freeway was completed.
1 Citizen Outdoor (the applicant) is seeking a review of the Kingston City Council's decision to refuse a permit for a major promotion sign that is designed and sited towards the newly opened Mordialloc Freeway opposite Braeside Park.
2 The council submits that the visual impacts of the sign would be unacceptable from surrounding land, including from within the Woodlands Industrial Estate, from Braeside Park and along the freeway corridor itself.
3 The Department of Transport (DoT) also opposes the grant of a permit on traffic safety grounds.[2] It's primary concern is the potential for the electronic sign face to cause distraction to motorists weaving in traffic when changing lanes before exiting the Woodlands Drive off-ramp. It also says that the proposal is premature because traffic patterns have yet to be properly established and cannot be fully and properly assessed.
4 The applicant through its submissions and evidence on town planning and traffic engineering matters refutes these contentions and asserts that the proposal would be an acceptable one for this location.
6 In reaching my findings, I have taken into account relevant submissions made, supporting material, the evidence and my most recent inspection following construction of the Mordialloc Freeway. I have also taken into account the various Tribunal decisions referred to as relevant to the issues in this proceeding. These include:
7 To the extent that other decisions give rise to similar issues concerning visual impacts and road safety, I observe that none are on all fours with this proposal. Of the above cases, the parties submitted that TOM Assets was most relevant to the issues in this proceeding. However, there are numerous elements that distinguish that case from the circumstances here. These include different topographical features, absence of parkland opposite and buildings on the host site which ranged in height from 9m to 18m in TOM Assets.
8 As is frequently the situation, the acceptability of each proposal turns on its particular facts and circumstances and that is certainly the case here.
9 I have concluded that the proposal would be of a scale, height and in a location that would give rise to unacceptable visual impacts for this particular setting. My reasons follow.
10 The hearing of this matter took place over two days in June and July 2021 during which time the Mordialloc Freeway was under construction. The Tribunal reserved its decision at the conclusion of the second hearing day.
11 Before finalising its decision, the Tribunal became aware that the freeway's construction had been completed ahead of schedule. The parties were provided with the opportunity to make further submissions which I have taken into account.
12 I record that the substantive position of the parties has not altered in any fundamental way. Suffice to say I acknowledge that the DoT advised that it would not object to the grant of a permit for the static (north facing) sign face on traffic safety grounds, notwithstanding that this aspect of the proposal does not trigger a referral requirement to the DoT.
13 As I foreshadowed in my interim order, I undertook a further inspection of the site and surrounds to observe the as-constructed conditions. This included a view from within Braeside Park, from various locations along the new shared walking/cycling track along Braeside Park's west boundary between Lower Dandenong Road and the Park Way underpass. I also drove along sections of Mordialloc Freeway in both directions and visited the Woodlands Estate including the review site.
14 The completed freeway works largely accord with plans made available to the Tribunal and parties for this proceeding[3] and unsurprisingly, new landscaping along the Freeway corridor and adjacent to the cycling/pedestrian path is still in its very formative stages.
15 I record that there was one noticeable aspect of the freeway works that differed from the design plans. While a new seat has been installed beside the new cycling/pedestrian path, the proposed new path directly between this seat and existing path in Braeside Park has not been constructed. I do not know whether this aspect of the design is still to be constructed or has been intentionally omitted. For now, I rely on existing conditions and have thus assumed that construction of this linking path is no longer intended to occur. I should add that neither scenario would change my substantive findings.
16 Suffice to say, the Mordialloc Freeway's completion has allowed the proposal's visual and traffic impacts to be well understood in circumstances where this area was at the time of the hearing, undergoing considerable transition and change. The freeway's completion has, in my view, largely overtaken submissions originally made by the council and DoT that the proposal is premature. However, DoT maintains its position that amongst other things, traffic patterns are yet to be properly established and data on some variables such as crash statistics are unavailable that would otherwise enable a more fulsome assessment of the proposal's road safety implications to be assessed. It says that the precautionary principle should be adopted in such circumstances and I should refuse a permit on road safety grounds.
17 Ultimately, it has not been necessary for me make findings on the implications of this proposal on road safety given that this proposal fails due to its visual impacts. I would not however have refused this proposal because it would be premature. The issues in this proceeding are manifold and predictive judgements about them would have been possible before the freeway's completion on the basis of the available material, facts and evidence.
18 The following images extracted from the plans before me show details of the proposed sign and its intended location on the review site.
19 The following aerial images[4] show the location of the site and the proposed location of the sign marked in red.
20 The following plan shows the zoning of the subject land and surrounds. The review site is within the IN1Z and Braeside Park opposite is within the Public Park and Recreation Zone (PPRZ). Braeside Park sits outside the Urban Growth Boundary as delineated by the solid blue line. A linear reserve zoned PUZ1 which also has a drainage function runs through the Woodlands Estate to the west of the review site.
22 In terms of overlay controls, a Design and Development Overlay - Schedule 5 (DDO5) affects the review site. It relates to the height of buildings and works in the flight path of the Moorabbin Airport. No permit requirement is triggered under this control.
23 A planning permit is required in the IN1Z for signs of the type proposed which fall within the planning scheme definitions[7] of a sky sign, floodlit sign, electronic sign and major promotion sign. This zone is in Category 2 - Office Industrial under clause 52.05-12 - low limitation.
24 Clause 52.05 relates to advertising signs and is the primary assessment tool for this proposal in addition to various policies including the council's Outdoor advertising policy at clause 22.07.
25 Policy themes[8] include road safety, high standards of urban design, and the provision of landscaping the supports the amenity, attractiveness and safety of the public realm are exemplified in urban design policies at clause 15.01-1S: whose strategies include the following:
Ensure that development, including signs, minimises detrimental impacts on amenity, on the natural and built environment and on the safety and efficiency of roads.
Promote good urban design along and abutting transport corridors.
26 Building on these themes, in Kingston clause 22.07 has objectives[9] that amongst other things, asks for excellence in the design and presentation of signs, encourages where appropriate, signs that contribute to the lively and attractive character of an area, seeks to protect visual amenity by avoiding visual disorder and clutter, encourages innovative signage that is appropriate to its setting and:
To ensure that the scale and form of signage is compatible with the size and style of the building, adjacent built form and land use, and the streetscape in which it is set.
27 Policy guidance of a general nature is provided at clause 22.07-3 with more specific guidance provided under the headings of 'Industrial and office areas' and 'Main road areas'.
28 These variously discourage the display of some sign types including sky signs and major promotion signs, while also recognising that there are limited opportunities for major signage.
29 A preference is expressed for signage directly applied to building walls 'rather than sitting above the building line or protruding from buildings into the skyline' while limiting impacts on surrounding residential uses 'such as residential areas and public land'. Along main roads the following policies apply:
Encourage a high level of visual amenity in areas adjacent to main roads to be maintained.
Consider the scale and size of promotional signage with regard to the size, scale and bulk of buildings in the surrounding area and any adjacent residential or sensitive land use areas. ...
Only permit the display of sky signs or major promotional signs where they do not dominate the skyline or landscape, and where signage and support structures are designed so that they do not contribute to or create visual clutter. [Tribunal's underlining]
30 Policy guidance specifically for major promotion signs is also provided. Relevantly:
31 Decision guidelines at clause 52.05-8 also require consideration.
33 Like preceding local policies, decision guidelines in this provision also refer to the impact of any illumination on the amenity of the area, impact on views and vistas including the potential to dominate the skyline, the relationship to the streetscape, setting or landscape and the relationship to the site and building including, amongst other things:
34 Impacts on road safety also require consideration. A sign is a safety hazard if amongst other things the sign:
Could dazzle or distract drivers due to its size, design or colouring, or it being illuminated, reflective, animated or flashing.
Is at a location where particular concentration is required, such as a high pedestrian volume intersection.
35 Specific guidance is also provided for major promotion signs. These include:
36 The following locational principles are also stated at clause 52.05-8:
WOULD THE PROPOSAL HAVE UNACCEPTABLE VISUAL IMPACTS?
37 There are four key considerations in relation to the proposal's visual impacts, namely:
The freeway corridor as experienced by road users
39 The council submits that this proposal will have undesirable visual impacts along the freeway corridor. It contends that the sign will be an excessively dominant feature in the skyline being higher and sitting above surrounding buildings in a way that will adversely impact upon the character of the freeway corridor. The proposed illumination of both sign faces and its location proximate to Braeside park opposite are said to make it unsuited to this location and contrary to council's policy for advertising signs and the decision guidelines at clause 52.05.
40 Through the submissions and planning evidence of Mr Logan, the applicant asserts that this part of the freeway corridor has a low level of visual amenity characterised by large visually dominant buildings that are utilitarian in character, containing sheer walls with little to no landscaping. It says this 'back of house' location on land in an industrial zone adjacent to a freeway makes it highly suited to the proposal. Such locations are said to be consistent with local policy and the decision guidelines of clause 52.05.
41 Further, it was Mr Logan's opinion that the sign would enhance the character of this urban landscape. His evidence was that although the sign whose overall height of 13.7m is greater than the 8.5m ridge height of the building on the review site, it will read as an integrated feature against the backdrop of built form behind.
42 When questioned by the Tribunal about the effect of new landscaping proposed along the freeway reservation as depicted in the landscape plan appended to Mr Hodges's witness statement, it was Mr Logan's evidence that this new planting would not make any significant difference to the visual character of this part of the freeway corridor occupied by industrial buildings in the Woodlands estate.
43 I concur with submissions for the applicant that blanket policy discouragement for promotional signs is not a reason in itself to refuse a permit.
44 Further, on its face, the attributes of this site's location, including its abuttal to a freeway, inclusion within the IN1Z and distance from residential land uses are favourable attributes that are envisaged for signs of this type under clause 52.05-8.
45 However, the direction offered by policies and clause 52.05-8 involves a consideration of the features of the particular setting including the host site, its buildings and its character. The latter includes the existing and desired future character.
46 I agree with Mr Logan's assessment that at present, the appearance of development on the west side of the freeway in the vicinity of and including the review site has a relatively utilitarian appearance. It comprises at-grade hard stand areas for parking and storage and light coloured warehouse buildings that typically have wall heights of around 7m to 8m and low pitched roofs with overall heights of around 9m. In part, these buildings, including those on the review site, have a more obvious presence from the freeway corridor because of their elevated location above the main freeway carriageway. Planting within industrially zoned properties at the corridor's interface is sporadic but includes some mature canopy trees further north and to a lesser extent further south, which partially softens and screens existing structures. This includes portions of a monopole for a mobile phone tower set within a group of taller trees to the north.[10]
47 A row of canopy trees that once existed along the length of the review's boundary adjacent to the freeway corridor in the garden bed where the sign is proposed to be erected has been removed in recent years.[11] The location of these now removed trees is shown in the aerial image below which is overlaid with proposed freeway landscaping extracted from the plan appended to Mr Hodges's statement of evidence[12] with my notations added. The garden bed presently remains devoid of landscaping.
48 Elsewhere, new freeway fencing, the absence of mature planting within the private realm and new planting in its infancy adjacent to this industrial pocket and along other parts of the freeway reserve, are other features that define the character of this location.
49 This contrasts with the dense cover of mature vegetation, mostly native, that is visible above freeway fencing on the east side of the freeway corridor. This presents as a very open, low scale and naturalistic landscape within Braeside Park between Lower Dandenong Road and Governor Road spanning a distance of about 2.5km. Planning scheme policies recognises the significance of Braeside Park as one of Kingston's environmental landscape assets in both a regional and international context.[13]
50 On the west side of the freeway corridor, further south of the review site but still within the Woodlands industrial estate and continuing to Governor Road, are wetlands set within a naturalistic vegetated setting. These wetlands, together with vacant Melbourne Water land to its south, have a combined frontage to the west side of the freeway corridor of about 1km. South of Governor Road, the freeway corridor continues for a further distance of approximately 1km through wetlands around Waterways Lake through which the Mordialloc Creek flows at its southern edge.
51 New freeway fences line parts of the freeway corridor. The freeway design concept plan appended to Mr Hodges's report indicates that these are 'fauna barriers' that vary in height from 3m to 4m. On the east side adjacent to Braeside Park and the new shared cycling/walking path, notations indicate that these fences are designed to 'help minimise impacts to local wildlife'. Fencing south of the pedestrian underpass on the west side of the corridor adjacent to the wetlands in the Woodlands Estate is to have a similar role in addition to 'divert[ing] bird flight paths up and over the Freeway'.
52 The 3.5km journey along the freeway corridor between Mordialloc Creek in the south and Lower Dandenong Road to the north is characterised by an open and somewhat naturalistic landscape on both sides except for the portion in which the review site is located on the freeway's west side. The distances along the freeway corridor are shown in the image below.
53 The portion of the corridor in which the site is located is anomalous when viewed in the context of the surrounding open, and in part, vegetated setting. However, I expect that over time the character of this part of the corridor will change and the setting in which buildings within Woodlands Estate are located will be softened with the growth of newly planted vegetation in the freeway verge whose width is more than 30m proximate to the review site.
54 The plan appended to Mr Hodges's evidence shows proposed landscaping treatment throughout the corridor. In this section proximate to the review site extracted below, notations indicate a mix of indigenous and native trees including coastal Manna Gums, Narrow Leaved Peppermint Gums, Blackwoods, shrubs and grasses.
55 It is a theme that will continue northwards along both side of the freeway corridor beyond Lower Dandenong Road.
56 I expect that new planting will in time complement and provide greater continuity with vegetation that exists in the surrounding area along and beyond both sides of the freeway corridor.
57 Given these circumstances, I consider that the utilitarian appearance of this western portion of the corridor is a factor that, in its present state, carries a lesser degree of weight as justification for siting the sign in this location.
58 I otherwise expect that the extent of built form throughout the broader setting along the freeway corridor is not likely to change given the presence of Braeside Park opposite and the wetlands at the southern end of the Woodlands Estate.
59 Relative to this broader setting, I find that the overall scale and proportions of the sign which will rise above its nearest buildings will have a visually dominating impact that is presently without precedent. Adopting Mr Hodges' evidence, the sign's legibility and principal viewing zone will commence around 530m on approach from both directions along the freeway corridor.
60 I accept that in limited views, primarily from the north on higher ground along the on-ramp, the sign will be partially read with buildings as a backdrop behind. However, along much of the journey in both directions, I anticipate that the sign will project above surrounding built form. I am also mindful that while the overall height of the building on the review site is 8.5m, its nearest walls are closer to 7m in height. The sign would sit separate from this building and its northern neighbour whose height appears to be only slightly greater than the building on the review site. This compares to the sign's overall height of 13.7m, commencing 8.5m above ground level as well as being elevated above much of the freeway's carriageway level.
61 The height, scale and position of the sign with the display area of each face totalling 96.79sqm, is no doubt intended to maximise its exposure with the not unexpected aim of drawing attention to itself and thus its advertising reach. But in protruding above existing buildings, the sign is not located or designed to screen the unsightly form of any existing structures - a relevant decision guideline in clause 52.05-8.
62 I consider that the overall height and scale of the proposed sign is excessive and would have an incongruous appearance whose relationship to this particular setting, in which landscaping improvements are being made and opposite significant parkland with an open vegetated character, is not acceptable. It is primarily for these reasons that the proposal fails.
Impact on Braeside Park and new freeway shared cycling/pedestrian path
63 The council is concerned that the proposed sign would be clearly visible from within the central reaches of Braeside Park and this would detract from the natural landscape setting of this significant area of open space.
64 It was Mr Logan's evidence that the proposed sign might only be glimpsed from its western edge on a path that he considers would not be heavily utilised by park users. At a distance of more than 100m, this degree of visibility was said to be acceptable.
65 To the extent that the sign might be visible from the new shared path, he expressed the opinion that the sign is unlikely to be visible above new freeway fencing.
66 Beginning with the new shared cycling/pedestrian path which I walked along opposite the review site after the freeway's completion, I accept that the sign's visibility from this path which is within the freeway reservation would be limited and within acceptable limits.
67 In terms of Braeside Park itself, I walked along the Howard Road Trail and Cypress Drive in locations opposite the review site and along its northern and southern approaches. I also walked along the underpass linking Braeside Park to Park Way within the Woodlands Estate and visited the central areas of the park.
68 I consider it unlikely that views of the sign would be possible from Cypress Drive or the central parts of the park.
69 Possible longer range views to the north-west over a distance of some 580m may be possible from the intersection of the underpass path and Cypress Drive. Given the bold colours used in the underpass surrounds and distance from the review site, I consider that the visual impact of the sign would not be problematic from this location.
70 In closer range views (around 180m away), I find that the sign is likely to be visible from the Howard Road Trail in locations further south of those visited and photographed by Mr Logan, towards the animated sign face.
71 While some filtering of those views through spaces in tree trunks would occur, I would expect that illumination of the sign will, depending on ambient light conditions, be an unwelcome intrusion in what is otherwise a highly naturalistic setting. I regard the naturalistic character of the parkland in this location, as one which amplifies its degree of visual sensitivity.
72 I make this finding accepting that this part of the park is not as heavily used as its busier interior with picnic facilities. However, this part of the park offers a different and 'lower key' visitor experience, which I observed to attract walkers, joggers and cyclists. The number or type of park users does not diminish the visual sensitivity of this location and the distance from which the sign would be visible is well within the expected viewing range for a sign of the proportions proposed.
73 I am unable to reconcile how the proposed sign's elevated position, illumination, size and siting responds in a contextually considered way to the sensitive character of this parkland opposite. While I appreciate that the focus of the sign is not intended to be park users, the sign would overlook parkland. This is a circumstance that policy at clause 22.07 expressly seeks to discourage for major promotion signs. While this is not the primary reason that this proposal fails, it is a factor that weighs against the grant of a permit.
74 The Council submits that the proposed scale, form and height of the sign would be inconsistent with the prevailing and consistent signage pattern and theme said to be characterised by business signs that are mostly not illuminated and which are displayed in an orderly fashion.
75 The Council also submits that visibility of the proposed sign above buildings, down the driveway on the review site from Woodlands Drive and from the nearby roundabout would likely occur. The Council contends that this outcome would be contrary to the strategic objectives for this 'gardenlike' industrial estate which otherwise has a high level of amenity.
76 Through the evidence and submissions for the permit applicant, it is asserted that the proposed sign will not be particularly noticeable other than in direct, front-on views looking down the driveway towards the sign from Woodlands Drive. To the extent that it would be visible, it is further contended that its distance from this viewing location would diminish its visual impacts and dominance.
77 I agree with the council's assessment that the Woodlands estate is one that in relative terms for an industrial estate, enjoys an unusually high level of amenity. It is a modern estate, developed in the past 20 to 30 years and has an orderly presentation. A substantial wetlands exists at the south-eastern portion of this estate which I understand was conceived as part of the estate's master planning and development.
78 Signage is typically not a dominant feature and where it exists, it is orderly and subservient to host buildings if free-standing or otherwise integrated into the host building's facade. Landscaping including large canopy trees and wide grassed settings are often a foreground feature behind which buildings are frequently set.
79 My observations are that longer range views above surrounding buildings will most likely be possible from the north (near the roundabout at the Mills Road intersection with Woodlands Drive) and from the south on approach to the site. Views down the driveway towards the sign will also be possible from Woodlands Drive but an existing tree sited close to the boundary in common with the neighbouring site to the north will assist in softening views towards the sign and the supporting framework to its rear.
80 Visibility of the sign from the public realm within this estate is not the primary reason that leads to me to conclude that the proposal is not acceptable. However, the presence of the sign extending above the height of existing buildings rather than integrated or attached to a building at the scale proposed would be anomalous for this context. This design response is discouraged by local policy at clause 22.07-3. These factors weigh against, rather than in favour of, the grant of a permit.
81 The site's location on land within the IN1Z adjacent to a freeway lends some support for this proposal.
82 However, balanced against this I conclude that a sign of the size, height and proportions proposed is not suited to this particular location. This is due to the physical attributes of the site, surrounding scale of buildings and the character of the broader setting which in addition to wetlands to the south, is heavily influenced by Braeside Park opposite.
83 The proposal would introduce a dominant and discordant visual element whose overall height, scale and illumination will be incompatible with the current and future visual and landscape character of the freeway corridor.
84 Visibility of the sign from within Braeside Park at its western edge contributes to the unsuitability of the proposal for this location. So too does the introduction of a sign of this type from within the Woodlands Estate.
85 It is for all of these reasons that this proposal fails.
86 In light of these findings there is no utility in making detailed findings about the proposal's suitability from a road safety perspective.
87 Suffice to say, I accept that although not consistent with my experience of traffic flows under current operating conditions, if lane weaving occurred on the southern approach to the review site and the exit ramp for Woodlands Drive, this would, in my view, constitute a circumstance where particular concentration is required for the purposes of clause 52.05-8.
88 For now, it is the proposal's visual impacts that lead me to conclude that the proposal is not an acceptable one.
89 For the above reasons I will affirm the council's decision and direct that no permit is to be granted.
[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.
[2] The application was referred to Head, Transport for Victoria (the relevant road management authority and represented by DoT) under clause 52.05-3 of the planning scheme because the electronic sign type located within 60m of a freeway or arterial road declared under the Road Management Act 2004.
[3] See orders of Martin SM dated 24 May 2021 arising from a practice day hearing conducted on 21 May 2021.
[4] Nearmap Image captured 4 February 2022.
[5] The Roads Corporation is listed as the acquiring authority in the schedule to clause 45.01.
[6] SCO3 relates to the Mordialloc Bypass (Freeway) Incorporated Document (July 2019) in the schedule to clause 45.12.
[8] Clauses 15.01-1S, 18, 18.02-4S and 22.07.
[10] Between 57-61 and 63-73 Woodlands Drive.
[11] My review of aerial photos in Nearmap indicate that this vegetation was removed some time between 22 March 2018 and 4 September 2018. I do not know the circumstances under which this vegetation was removed other than to record that site conditions changed in the 18 months before lodgement of the permit application with the Council.
Citizen Outdoor Pty Ltd
Kingston CC [2022] VCAT 259