1. Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

Job ref: 1833 Drg No. 1 rev A, Drg 02 rev B, Drg 03 rev B

1. In application P915/2019 the decision of the responsible authority is affirmed.
2. In planning permit application P/2019/6054 no permit is granted.

Ian Pitt QC of Best Hooper. He called the following witnesses:

• Mr Robert Kelderman, town planner.
• Ms Charmaine Dunstan, traffic engineer.

Photomontage evidence of Mr Chris Goss, was also circulated prior to the hearing and relied upon in the hearing.

Ms Sue Zhang, town planner of Glossop Town Planning.

Mr Saurabh Shirdue, at the commencement of the hearing only.

Construct and display a major promotion, electronic, sky sign. The proposed sign, as set out in the substituted plans, is to face south toward Boronia Road. It will align with the façade of the Boronia Road shopfronts on top of the first floor of a building on the site.

The sign is to display static images which will change every 30 seconds. It will operate continuously.

Application under section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time.[1]

Construct and display a major promotion, electronic, sky sign as set out in clause 52.05-2

Clauses 11, 12.05, 15.01, 21.02, 21.05, 22.01, 34.01, 52.05 and 65.

109 Boronia Road is a part single storey and part double storey commercial building at the north-east corner of Dorset Road and Boronia Road. Directly south is the Zagame hotel. Land west of Dorset Road is also commercial, forming part of the Boronia Activity Centre.

I inspected the site on the afternoon of day 1 of the hearing, unaccompanied. This included a view of the site from various corners of the intersection of Boronia Road and Dorset Road.

1. Drive by Developments Pty Ltd (the applicant) is seeking a planning permit for a major promotion, electronic, sky sign at the north-east corner of Boronia Road and Dorset Road Boronia. The proposal was originally for a sign to 'wrap around' the south and west parapet of the building at this corner, so that the sign faced both Boronia Road and Dorset Road. The council failed to make a decision about this proposal within the statutory time period so the applicant then sought a review of what is a deemed refusal of the council to grant a planning permit for the proposal.
2. Having made the review application, the applicant then circulated new plans that were substituted as the application plans at the commencement of the hearing. These plans amend the proposed sign to only face south, toward Boronia Road, with the sign also located east from the corner of Dorset Road.
3. The council states that had it made a decision on the revised proposal it still would have refused to grant a permit because it adversely impacts on a scenic viewline along Boronia Road to the Dandenong foothills and Dandenong Ranges. It also submits the proposal is contrary to policy for advertising signs as it relates to the location of the sign against the host building and the surrounding Boronia Activity Centre.
4. VicRoads does not object to the amended proposal, subject to permit conditions that the applicant does not contest. The council also advised that it no longer has issues with traffic safety about the sign. Mr Ferguson remains concerned the sign will add to traffic safety issues at the intersection of Boronia Road and Dorset Road.

1. From submissions made and information provided I consider the key issues I need to address in this application are:
   • Is the sign appropriate to policy for advertising signs in the Boronia Activity Centre?
   • Does the sign adversely affect viewlines to the Dandenong Ranges?
   • Will the sign create an unreasonable road safety risk?

1. Having considered the submissions and evidence, as well as inspecting the site and surrounding area, I have decided to refuse to grant a permit. My reasons follow in context of the decision making framework applying to the proposal and the details of the proposal itself.

1. The proposal is to establish a major promotion, electronic, sky sign with a display area of 4 metres x 13 metres. The display area will sit in a structure that will sit on top of, and align with, the single storey parapet of shopfronts at 109 Boronia Road. This structure is a box that is 5 metres x 13 metres in its face to Boronia Road and is 1.3 metres deep, forming a free standing structure on top of the first floor roof of the building.
2. In establishing the sign, an existing parapet sign at the corner of Dorset Road and Boronia Road will be removed.

Figure 1 - Existing view from South-west corner of Dorset Road

Figure 2 - Photomontage with sign inserted and the existing corner sign hatched, as it is to be removed.

1. The council referred me to a recent decision of the tribunal in Zagame Boronia Pty Ltd v Knox CC[3]. This decision usefully sets out a detailed examination of the relevant policies and provisions that essentially[4] remain unchanged. I defer to much of what is set out in this decision about the context, but summarise what I consider are key similarities and differences to the Zagame decision:
   • Clause 52.05 continues to provide the relevant permit triggers and assessment criteria for signs.
   • My review site is fully in a Commercial 1 Zone (C1Z).
   • State policy at clause 12.04 remains relevant, noting the Dandenong Ranges are an environmentally sensitive feature of local and regional importance.
   • Urban design policy of clause 15.01 remains relevant.
   • Clause 21.05-3 (Bush Boulevards and Gateways) identifies that Knox has a number of significant road corridors that accentuate the landscape character. Figure 1 to this clause identifies Boronia Road, west of Dorset Road is within a 'Bush Boulevard' and Boronia Road east of Dorset Road is within 'Paths into the Hills'.
   • I concur with the findings of Zagame[5] and agree with the council that both the Zagame site and the review site are within Paths into the Hills as I concur that the designation extends along Boronia Road within the activity centre.
   • A key relevant issue as set out in policy at clause 21.05 of the planning scheme is the management of large format signs, such as sky signs, major promotion and panel signs. This includes the policy objectives that seek:
     • to ensure that signs meet the needs of businesses on the land without causing visual clutter or having a detrimental streetscape impact,
     • avoiding signs that impact views to significant landscapes, and
     • supporting signs that are compatible with the scale of the building/site and surrounding landscape and streetscape character.
   • Clause 22.01 is the key local policy directing advertising signs.
   • Clause 21.10-3 includes design direction for land within the Boronia Activity Centre, based on the Boronia Structure Plan (2006) which is a reference document to the planning scheme. The structure plan includes principles for future design and built form for the area that includes maintaining views to the Dandenong Ranges and to 'reduce the clutter within the centre particularly created by excessive visual signage'.[6]
2. I concur, as set out at paragraphs 35 and 36 of Zagame, that there is an established set of principles to set the starting point for considering a major promotion sign and that 'each sign must be assessed on its own merits, it (sic) relation to its design, site context and location, and consideration must be given to planning policies guiding the future development of the activity centre'. The sign is located in a Commercial 1 Zone where 'minimal limitation' is provided, and major promotion signs are 'encouraged' 'in a manner that complements or enhances the character of the area'. This character outcome needs to be directed by both State and local policy relating to the character and urban design expectations for the review site and surrounds.
3. Clause 52.05 includes relevant decision guidelines to consider:
   • The compatibility of the proposed sign with the existing or desired future character of the area in which it is proposed to be located.
   • The proportion, scale and form of the proposed sign relative to the streetscape, setting or landscape.
   • The position of the sign, including the extent to which it protrudes above existing buildings.
   • The scale and form of the sign relative to the scale, proportion and any other significant characteristics of the host site and host building.
   • The potential of associated structures to impact any important or significant features of the building, site or streetscape
4. I also note two key differences between the Zagame case and that before me:
   • My site sits north of Boronia Road, more clearly in the core of the activity centre and the sign, as set out in the substituted plans faces south, so that its main advertising view is not with a backdrop of the Dandenong Ranges.
   • The Boronia Structure Plan is now under active review with a draft Boronia Renewal Strategy 2019 and draft Planning Scheme Amendment (C178 Knox) endorsed by Knox City Council at its 26 August 2019 council meeting. This renewal strategy will supersede the Boronia Structure Plan 2006, including as a reference document in the Knox Planning Scheme.
5. The draft renewal strategy includes comment that 'the appearance and signage associated with many businesses in the Activity Centre is oriented towards visibility from cars. This creates a hostile environment for pedestrians and cyclists that is cluttered and lacks any coherent or unifying place brand[7]'. This reinforces comment in the existing structure plan, and incorporated into strategy 5.10 of clause 21.10-3 of the planning scheme, to provide a 'strengthened and improved level of amenity and safety of east-west and north-south pedestrian links across Dorset and Boronia Roads.'[8]
6. I address the issue of safety separately below, but find the strategy relevant to the discussion of character and urban design as the direction is also to improve 'the amenity' of these pedestrian spaces.

What is the existing and preferred character sought for the area?

1. It was common ground between parties that the intersection of Boronia Road and Dorset Road is not currently a high quality urban design environ. Mr Kelderman also acknowledged that in urban design terms, the site's location at this corner makes it a landmark location.
2. Both the existing structure plan and draft renewal strategy identify the site as one where higher and more intensive built form is expected, and overall seeks an improved urban design outcome for the centre. This is set through directions at clause 21.08 and 21.10 of the planning scheme where the Boronia Activity Centre is identified as a place that retains 'the distinct nestled aspect at the foot of, and with views towards, the Dandenong Ranges'.

DOES THE SIGN APPROPRIATELY RESPOND TO THE CONTEXT OF THE BORONIA ACTIVITY CENTRE?

1. One of the objectives of clause 52.05 for signs is to 'ensure signs are compatible with the amenity and visual appearance of an area, including the existing or desired future character'. This is reiterated in policy objectives of clause 22.01. My review of the proposal is that it does not suitably address either the existing or preferred character contexts.
2. In considering the character of the area I find it relevant that the site is in a location where clause 21.05 -3 maintains an objective 'to enhance the landscape character of the 'Paths to the Hills' areas. This is reiterated in an objective of clause 22.01 to 'avoid major promotion signs, promotion panel signs and sky signs within areas of significant landscapes' including 'Paths into the Hills' and the decision guideline to consider 'whether the sign will detract from or dominate the landscape character' of the Paths to the Hills.
3. The objectives and decision guideline establish a broader implication than whether the sign interrupts a direct view of the Dandenong Ranges. I consider the policy directions require a sign to complement and enhance the landscape character sought for the area as part of a general low key character setting of a Path to the Hills, as set out in clause 21.05 and 21.10. To this extent I find it remains relevant that:
   1. The sign is located on a Path to the Hills where policy at clause 22.01 seeks to avoid major promotion and sky signs. This policy direction does not specify it is based only on the impact of a sign on a direct view to the Dandenong Ranges. Some consideration of the overall impact of the sign on the environs sought for the area must therefore be given.
   2. While clause 22.01 directs that major promotion signs may be supported in the Boronia Activity Centre area, it states they should be attached directly to the wall of a building, meet all other requirements of the policy and meet all other relevant requirements of the planning scheme applicable to their location.
4. Mr Kelderman's evidence is that it is also relevant that DDO7 applies to buildings and works on the site (not signs) as this DDO contemplates building up to four storeys in this part of the activity centre[9]. Such a building, however, would be tested against the objectives and decision guidelines of the DDO7, that direct higher building form be visually offset through substantial canopy planting of indigenous trees along nature strips, between buildings and the site's street frontage'. DDO7 also has decision guidelines to ensure new building reinforces 'the emerging contemporary natural character of the Centre, including the naturalistic theme of the local area and the identified precinct areas'.
5. I therefore consider it is not possible to simply draw a parallel that because the sign has an effective two / three storey height it is commensurate with four storey development sought by the DDO7. As a free standing sign structure it is also difficult to see how the sign could integrate with such development if it occurs in the future. To this extent, I find it is not simply the display area of the sign that needs to be considered, but the impact of the sign's structure on the urban design objectives sought for the streetscape and activity centre.
6. The Boronia Activity Centre does not currently have a strong existing landscape character, but both the existing and proposed structure plans for Boronia seek to improve the current poor urban design of the area. I am not convinced that this sign will do this. Rather I am concerned it will further detract, adding to visual clutter and visual disorder in the area.
7. Mr Kelderman's evidence is that when viewed from Dorset Road, as depicted in the photomontages, the sign will not dominate the skyline, as beyond a distance of 200 metres from the south it will be approximately level with the height of commercial buildings to the north behind it.
8. The sign will, however, be visually prominent from closer views. This is because it is not sitting against a wall and will sit well above the single storey parapet of its host building when viewed closer to the intersection of Boronia Road where policy directs improved pedestrian amenity. The host building has a second storey element, but plans indicate this is set back 11 metres from the sign and is lower in height than the sign structure. I fail to see that the sign will be read as part of this second storey form or integrate with the broader building surrounds in its immediate environs where improved urban design is sought by the existing and proposed policies for the Boronia Activity Centre. It is also not consistent with local policy at clause 22.01-3 for signs to be 'integrated with the building façade'.
9. The only photomontage provided of the sign is from the south. Mr Kelderman's evidence is that when viewed from the north, the sign would be obscured by the three storey cinema building further north. My observation, however, is that on other angles, such as looking from the north, but closer to the intersection with Boronia Road, or looking directly west along Boronia Road, the sign box will clearly be a separate and incongruent structure sitting on top of the shopfronts to Boronia Road. The scale and form of the proposed sign structure, relative to the single storey parapet and general streetscape, I find to be out of proportion to its immediate context.
10. In consideration of the above matters I find the proposal is not an appropriate outcome having regard to the design considerations of clause 52.05 and relevant State and local policy also applying to the site.

DOES THE SIGN ADVERSELY AFFECT VIEWLINES TO THE DANDENONG RANGES?

1. From my inspection, I concur with the evidence of Mr Kelderman that removing the west face of the sign means the advertising sign does not interrupt a direct view of the Dandenong Ranges.
2. My concerns relate to the broader impact on the character of the area as set out in my reasons above.

WILL THE SIGN CREATE AN UNREASONABLE TRAFFIC HAZARD RISK?

1. Both the council and VicRoads are satisfied the sign will not create an unreasonable traffic safety issue. I note the council urban designer comments made during the officer assessment process raised some concern about distraction of drivers and pedestrians from the sign that may create a safety issue. I am not sure what the relevance of this comment is to an urban design assessment. I accept, however, that in context of the urban design directive the sign can be seen to not improve pedestrian amenity at the intersection of Dorset Road and Boronia Road. This again is because of the dominance of the sign, for reasons I have discussed above.
2. Mr Ferguson maintains concerns that pedestrian safety is a concern at this intersection and he has had personal experience of people having been knocked by cars heading west and turning left from Boronia Road, south into Dorset Road. He submits that appropriate risk management of the intersection safety has not been considered.
3. I accept Ms Dunstan's evidence that for the south-west direction turn from Boronia Road a driver is looking south-west, away from the proposed sign location. Therefore, the sign should not be a major distraction to this manoeuvre. I am also satisfied from the evidence of Ms Dunstan and the comments from VicRoads, as road safety manager, that more broadly, appropriate traffic safety risks associated with the sign have been considered and are acceptable I therefore find that the proposed sign would not create an unreasonable traffic safety issue, provided relevant permit conditions were in place.

1. I find this proposal for a major promotion, electronic, sky sign fails due to its inability to comfortably fit in the existing and preferred character of the Boronia Activity Centre and its immediate surrounds. For the reasons given above, the decision of the responsible authority is affirmed. No permit is granted.

[1] Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 states a failure to make a decision is deemed to be a decision to refuse to make the decision.

[2] 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.

[3] [2018] VCAT 1001.

[4] The council clarified that there has been minor amendment to the local planning policy framework since this decision, but the changes are inconsequential to the matter before me.

[6] Boronia Structure Plan [pg. 20-25].

[7] Page 64 - 65 of draft Boronia Renewal Strategy 2019.

[8] Page 6 of the Boronia Structure Plan 2006.

[9] And possibly up to 10 storeys based on the draft renewal strategy.