1. In application P814/2017 the decision of the responsible authority is set aside.
2. Planning permit 0162/90-1 is amended and an amended permit is directed to be issued for the land at 9 Toorak Road, South Yarra in accordance with the endorsed plans and the conditions set out in Appendix A. The amended permit allows:

The erection of a major electronic major promotion sky sign and associated buildings and works in accordance with the endorsed plans.

Mr J Gobbo QC and Ms J Trewhella of counsel instructed by Harwood Andrews Solicitors

Mr Gobo and Ms Trewhella called expert evidence from:

A witness statement prepared by Way Thai Choong was tabled but Way Thai Choong was not called to give evidence.

It is proposed to replace an existing illuminated promotion sky sign with a new electronic major promotion sky sign, on the roof of the building. The proposed sign comprises a new digital advertising display board which has dimensions of 12.0m (width), 3.0m (height) and an advertising area of 36m2. A new support structure is required to fix the base of the sign to the roof of the host building.

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

Clause 37.08: Activity Centre Zone. Advertising sign requirements are at Clause 52.05. Land designated for Main Streets Uses is in Category 1.

Clause 43.02: Design and Development Overlay (DDO1, DDO20)

Clause 52.05-7: A permit is required for an electronic, major promotion sky sign.

Clause 45.01-1: A permit is required to construct a building or construct or carry out works.

The site is located on the north side of Toorak Road, about 12.0m to the east of the intersection with Punt Road. A double storey commercial building occupies the site. A floodlit major promotion sign is located on the roof of the building. A permit for that sign was issued in 1990. The existing sign has dimensions of 12.66m x 3.35m and has an overall height above ground level of 13.35m. The existing sign is illuminated by four floodlights at the base of the sign panel.

1. This is an application to review the Council's failure to amend a permit within the prescribed time. The Council subsequently resolved it would have refused to amend the application for the following reasons:

1. The proposed electronic major promotion sky sign will negatively impact on the nearby residential area and fails to satisfy Clause 22.03 and 52.05 of the Stonnington Planning Scheme. 2. The proposed electronic major promotion sky sign is inconsistent with the nature of signage in the surrounding area and will not complement or enhance the existing character of the area and fails to satisfy 22.03 and 52.05 of the Stonnington Planning Scheme.

1. The proposed electronic major promotion sky sign will result in visual clutter and is contrary to the relevant decision guidelines stipulated in Clause 52.05 and objectives outlined in Clause 22.03 of the Stonnington Planning Scheme.
2. The existence of a major promotion sky sign has formed part of the physical context of this site and the broader locality for many years. The permit authorising the existing sign on the site was issued in 1990 and there is no expiry date on the permit. The existing sign is therefore entitled to continue to be displayed in perpetuity.
3. The application to amend the permit does not create an opportunity to assess the appropriateness of a major promotion sky sign on this site. In an amendment application my task is to decide whether it is acceptable, in this case, to amend the permit to allow a new digital advertising board to be displayed.
4. In many respects the Council's grounds of refusal to amend the permit do not reflect the proper approach to the consideration of an application to amend a permit. Issues of visual clutter, impact on residential areas, impact on existing character and compliance with policy, are only relevant to the extent that they apply to the proposed change to an electronic display, and to the extent that there is any significant change to the physical structure of the sign.
5. For the reasons set out below I have decided that the amendment to the permit is acceptable and I have directed that the permit be amended.

The Council submits that the proposed amendment is unacceptable for a range of reasons that can be summarised as follows:

• There is no net community benefit associated with major promotion signs and their acceptability is determined by the application of guidelines and policies under Clause 52.05 and the local planning policy framework, in particular Clause 22.03
• The proposal is contrary to the planning scheme because it be will be dominant in the streetscape and is a poor urban design outcome.
• The approval of the sign inhibits the long term redevelopment of the site in accordance with broader policies for the development of the locality.
• Local policy especially Clause 22.03 discourages signs of this type unless it can be demonstrated that nominated criteria is met by the proposal. This proposal does not demonstrate compliance with all of those criteria. Because of its size, location on the roof of the building, and because it is a promotion rather than a business or directional sign, it contributes visual clutter and fails to maintain the character of the area and the streetscape.
• Locational principles for major promotion signs under Clause 52.05-5 are not met because the sign does not maintain the character of the area, it will be a dominant visual element when viewed from residential areas, and will be dominant because it will be erected on the roof of a building which is discouraged even in locations which display a strong built form character.
• The luminance levels and the changing of the image every 45 seconds is disruptive to residential amenity.

1. I agree with the applicant's submission that I need to decide what is the impact of the electronic nature and the other proposed amendments to the sign?
2. In relation to this issue specifically, the Council's submission is primarily confined to concerns about the permit amendment inhibiting future development potential of the site, and the impact of the changing message on residential amenity. The balance of the Council's submission is largely peripheral to the primary issue at hand. In any event those aspects of the planning scheme relied on by the Council that discourage major promotion sky signs must be balanced against those provisions that provide support for these signs. The acceptability of the proposal from a policy and locational perspective needs to have regard to the following provisions of the planning scheme:
   • The site is zoned Activity Centre. The Category 1 - Commercial Areas is a minimum limitation area and the purpose for such areas is to provide for identification and promotion signs and signs that add vitality and colour to commercial areas.
   • Clause 52.05 contains a range of decision guidelines and locational principles for major promotion signs specifically in addition to more general decision guidelines. Relevantly, major promotion signs are encouraged in commercial and industrial locations and discouraged where they will form a dominant visual element from residential areas, within a heritage place or where they obstruct significant view lines. They are also discouraged along forest and tourist roads, scenic routes or landscaped sections of freeways, open space reserves or corridors and around waterways.
   • In locations where major promotion signs are encouraged a consideration of character impacts is called for.
   • While Clause 22.03 discourages sky and promotional signs it also sets out a range of guidelines for signs in commercial areas and encourages signs that respond positively to those guidelines.
3. In undertaking an assessment of this proposal against the relevant provisions of the planning scheme, it is the differences between the existing sign and the proposed sign that is relevant. In this respect the signage area of the sign has been reduced from 45m2 to 36m2, and the existing flood lights are to be removed and replaced with internal illumination. The sign is to be encased to the rear, top and sides. The eastern elevation plan attached to Mr Rodda's evidence that details the perforated metal cladding to the rear of the sign, is an appropriate treatment of that elevation. The proposed sign's relationship to the host building is largely unchanged.
4. Having regard to these matters, the proposed amendments represent a perceptible improvement in the sign's overall presentation. Because of the existing sign on the review site, the amendment does not contribute to additional visual clutter, and the character of the area and the streetscape is at worst maintained and in some respects improved.
5. The most significant proposed change is the conversion from a traditional static display to an electronic or digital display.
6. I was provided with details about the nature of digital signage technology and its operational characteristics. A Lighting Report accompanied the planning permit application and on the basis of that report I am satisfied that the luminance will always comply with relevant standards[3] because the technology allows luminance to adjust automatically to surrounding lighting conditions.
7. The Tribunal has in recent years considered a number of applications involving the introduction of digital signage technology. In broad terms the Tribunal has found that the change to an electronic sign may have some increased visual presence over and above that of flood lit signs, and the eye drawing effect of the moving images[4]. The extent to which there is an increased visual effect is however site specific, and is dependent on the form of the existing sign and the physical characteristics of the site. The Tribunal has commented that the digital signs tend to have a greater level of clarity compared to traditional signs but this has not led the Tribunal to conclude that this feature makes the signs more intrusive.
8. Based on my inspections of the digital signs which are increasingly common throughout the metropolitan area, I concur with the observations of the Tribunal about the impact of the change to digital sign technology.
9. In this case, on this site, the new digital sign technology is acceptable and will not adversely impact on the character of the locality, the streetscape or the amenity of the area. The review site is located in an activity centre in which signage of various types and forms are a common feature. Importantly, this is also a location in which there is significant and prominent infrastructure in the form of traffic lights, street lights, tram lines and powerlines. The location is also characterised by relatively high levels of illumination associated with that infrastructure and because of the intense illumination associated with the convenience store abutting the review site to the west at the intersection of Toorak and Punt Roads. Combined with the high volumes of traffic and the headlights of vehicles passing through this intersection, these factors all contribute to a relatively robust urban environment in which an assessment of this proposal's impact on the residential area to the west of the site, needs to be undertaken.
10. Having regard to these site context features, I am satisfied that the apartment building located on the west side of Punt Road, facing the review site will not experience unacceptable amenity impacts. My findings on this matter are also informed by the previously referred to Lighting Report which provided detailed information about luminance levels and compliance with relevant Australian Standards.
11. In relation to traffic safety considerations, the Council did not raise this issue as a concern and VicRoads has also assessed the application. Subject to the imposition of permit conditions VicRoads does not object to the application. I note in this respect the VicRoads assessment has led to changes to the operation of the sign in terms of the transition times for the display of images. These are accepted by the Applicant.
12. I am not persuaded that the granting of an amended permit would constrain to any significant degree the development potential of the site. To the extent that the existing or the amended sign is a constraint, it is unlikely to be an insurmountable constraint in the event that a development proposal is pursued.
13. It follows from the above reasons that it is my conclusion that the decision of the responsible authority should be set aside and an amended permit issued.

The erection of a major electronic major promotion sky sign and associated buildings and works.

1. The plans to be endorsed and which will then form part of the permit are the plans submitted with the application and the plan prepared by DBD dated 28/8/17 Revision A titled Finishes and East Elevation.
2. The major electronic major promotion sky sign and associated buildings and works as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3. The sign shall be installed and maintained to the satisfaction of the Responsible Authority.
4. All maintenance and servicing of the sign shall be carried out from the roof of No. 9 Toorak Road, South Yarra.
5. The time of commencement of the development hereby permitted is specified as within twelve months from the amended date hereof and the time for completion is specified as within twelve months of the date of commencement.
6. Building approval and other statutory approvals shall be obtained in accordance with relevant Regulations.
7. No other sign shall be permitted on the wall under the sign covered by this permit.
8. No aspect of the advertisement (including content) hereby permitted and described on the endorsed plans shall be altered or modified without the consent of the Responsible Authority.

1. Prior to the commencement of works, amended plans must be submitted to, and approved by, the Responsible Authority. The plans must be generally in accordance with the submitted plans and amended to show:
2. The notation "No compensation is payable pursuant to Part 5 of the Planning and Environment Act 1987 in respect of anything done under this permit" clearly annotated on all plans.
3. No advertisement may be displayed for less than 45 continuous seconds.
4. The transition between advertisements must be instantaneous.
5. The control of the electronic sign must be in accordance with the approved lighting report.
6. The veiling luminance of the sign must not exceed 0.25 cd/m2 throughout a driver's approach to the sign.
7. The advertising content of the sign must not:
   • (a) Consist of more than one static image, be sequenced in any way, contain or consist of video, movie, television broadcast, contain any flashing or create the illusion of movement.
   • (b) Be capable of being mistaken for a traffic signal or traffic control device. This includes the use of red, amber or green circles, octagons, crosses or triangles.
   • (c) Be an instruction, or be capable of being mistaken as an instruction, to a road user. This includes use of the wording stop, give way, slow, turn left or turn right.
   • (d) Be predominantly green, amber or red.
8. The sign and advertising content must not dazzle or distract road users due to its colouring.
9. In the event of a malfunction of the electronic sign or advertising content, the electronic sign must be shut down and cease visual output until the malfunction is rectified.
10. No compensation is payable pursuant to Part 5 of the Planning and Environment Act 1987 in respect of anything done under this permit.
11. This permit for the display of the permitted sign will expire no later than one day prior to the date at which the land is acquired by VicRoads, at which time the advertising sign and all supporting structures must be removed to the satisfaction of, and at no cost to, VicRoads.

[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] The Lighting Report assessed the application against the VicRoads Advertising Policy for Advertising On, Over and Adjacent to VicRoads declared Road Reserves, and AS4282 - 1997 Control of Obtrusive Effects of Outdoor Lighting.

[4] APN Outdoor Pty Ltd v Port Phillip CC [2013] VCAT 1853, iOM v Knox CC VCAT [1315] 2014, Octopus Media v Boroondara CC [2008] VCAT 650.