1. In application P619/2018, pursuant to section 127 and Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended to confine the application to permission for development only.
2. In application P619/2018 the decision of the responsible authority is affirmed.
3. In planning permit application TP-2003-2019 no permit is granted.

Mr Nick Tweedie SC and Mr R Forrester of counsel, instructed by Minter Ellison. They called the following witnesses:

• David Crowder, town planner, Ratio
• Julie Bell, urban designer and town planner, David Loch Associates.

Affidavit evidence was given by Adrian Bird, general manager, Fivex Pty Ltd.

Mr Matthew Townsend of counsel, by direct brief. He called the following witnesses:

• Alastair John Campbell, urban designer, Hanson Partnership Pty Ltd
• Daniel Sanfillipo, town planner, Melbourne City Council

Maintain display of two high-wall major promotional signs.

Application under section 81(1) of the Planning and Environment Act 1987 - to review the refusal to extend a permit.

Application under section 77 of the Planning and Environment Act 1987 - to review the refusal to grant a permit

Application under section 149A of the Planning and Environment Act 1987 for declarations.

• Capital City Zone (Schedule 2)
  • Heritage Overlay (Schedule 505)
  • Design and Development Overlay (Schedules 1, 2, 3 and 4)
  • Special Building Overlay
  • Parking Overlay (Schedule 2)

• Clause 37.04 - Capital City Zone
• Clause 43.01 - Heritage Overlay
• Clause 52.05 - Advertising signs

The subject site is located on the north east corner of the intersection of Flinders Street and Elizabeth Street on the edge of the Hoddle Grid, within the Melbourne CBD. The site is occupied by an existing 17 storey mixed use building, containing a mix of retail and commercial uses at ground and first floor levels, with commercial office space above.

The two signs, which are the subject of these proceedings, are located on the northern façade and on the southern façade at the top of the building just below the parapet. Each sign consists of the word "Fivex" and is internally illuminated. Each Fivex sign is 3.5 metres high and 13.385 metres long.

The Tribunal inspected the two signs from numerous perspectives in Elizabeth Street, Flinders Street, St Kilda Road and along Southbank and the Yarra River corridor during the day and evening on 5 December 2018. A further inspection was undertaken during the day on 23 January 2019.

1. These proceedings relate to whether the two existing Fivex signs on the north and south façades of the building on the subject land can continue to be displayed. Issues arising include whether the permit, which authorised their display, has expired; whether the permit can or should be extended; and, if not, whether a new permit should be granted.
2. The permit in question is planning permit TP-2003-2019 (the permit). It was issued on 12 May 2003 and allows:

Erection of highwall business signage in accordance with the attached endorsed plans (Sheets 1 - 5).

1. The plans endorsed under the permit have been amended on several occasions. The timeframes for commencement and completion of the signs under the permit were extended six times before the signs were eventually erected - the south sign having been installed during May-June 2015 and the north sign installed during June-July 2016.
2. The last permit extension was granted on 21 April 2015 allowing until 29 May 2015 to complete. On 19 September 2017, a request was made by the applicant (Fivex) to extend the display of the signs for an additional 15 years on the basis that the permit was due to expire on 12 May 2018, which is 15 years after the date of issue of the permit. The expiry was due to the operation of clause 52.05-4.[1] The council refused to extend the permit on 16 November 2017. Fivex lodged an application to review this refusal under section 81(1) of the Planning and Environment Act 1987 - application P2824/2017 (the extension application).
3. Fivex then applied for a new permit. This was refused by the council on 15 March 2018. Fivex lodged an application for review of this refusal under section 77 of the Act - application P619/2018 (the refusal application).
4. By letter dated 15 May 2018, the council advised Fivex it considered that:
   • The permit has expired.
   • The signs can no longer be displayed on the building.
   • Fivex is legally obliged to remove the signs, and to make good the façade of the building to council's satisfaction.[2]
5. The basis for the council's assertion that the permit has expired was the effect of clause 52.05-4 of the planning scheme, which provides as follows:

A permit for a sign other than a major promotion sign expires on the date specified in the permit. If no date is specified, the expiry date is 15 years from the date of issue of the permit.

1. In its letter of 15 May 2018, the council says with respect to clause 52.05-4 (then clause 52.05-1), that given no expiry date is specified in the permit, planning permission for the signs expired on 12 May 2018. This is 15 years after the permit was issued on 12 May 2003.
2. In response to this, Fivex applied for a declaration under section 149A of the Act that planning permit TP-2003-2019 has not expired - application P1161/2018 (the declaration proceeding).

1. The key issues to be determined in these proceedings are:
   • Has the permit expired as a result of the operation of clause 52.05-4 or otherwise?
   • If so, can or should the permit be extended?
   • If not, or if the permit has expired under clause 52.05-4, should a new permit be granted?
2. First though, it is relevant to determine how the signs should be characterised. This will be relevant in the context of whether the permit has expired under clause 52.05-4. The automatic expiry of permits for signs under clause 52.05-4 only applies to signs that are not a major promotion sign. There is not a similar automatic expiry provision for existing permits for a major promotion sign, although all new permits for a major promotion sign must include an expiry date (see clause 52.05-9).
3. Characterisation of the sign will also be relevant in the context of applying policy and the consideration of decision guidelines when dealing with the refusal application if a new permit is required.

1. The permit allows the erection of 'highwall business signage'.
2. With respect to the application for a new permit, the permit application characterises what is applied for as follows:

Continue display of Highwall Illuminated Business Identification Signs.

1. In its Notice of Refusal, the council refused to grant a permit for the following:

Maintain display of two highwall major promotional signs.

1. In the context of the permit application, Fivex submits it is a permit application for two major promotion signs, which would also allow high-wall signs. Fivex also submits that the signs are business identification signs.
2. However, in the context of the declaration proceeding, it says that what the permit allows is 'high wall business signage in accordance with the attached endorsed plans'. Significantly, the permit is not a permit for 'business identification signs', but instead for 'business signage'. As such, it permits the erection and display of any form of business signage, including signs that identify a business or promote a business, provided that the signs are erected and displayed in accordance with the endorsed plans.
3. The definitions of these types of signs, and also another relevant category of sign - 'internally illuminated sign' - as set out in clause 73.02 of the planning scheme are as follows:

A sign that provides business identification information about a business or industry on the land where it is displayed. The information may include the name of the business or building, the street number of the business premises, the nature of the business, a business logo or other business identification information.

A sign on the wall of a building so that part of it is more than 10 metres above the ground.

A sign illuminated by internal lighting or which contains lights or illuminated tubes arranged as an advertisement.

A sign which is 18 square metres or greater that promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold or for hire on the land or in the building on which the sign is sited.

1. In my view, the signs clearly fall within the definition of high-wall sign and internally illuminated sign. It is less clear whether the signs are business identification signs or major promotion signs, or indeed whether they are both.
2. During the course of the signs' history, the signs have been consistently described as business identification signs both on the part of the council and Fivex. It is not until the council's refusal to extend the permit and its letter of 15 May 2018 advising that the permit has expired, that Fivex contended that the signs are major promotion signs.

1. The background associated with the permit and the existing signs is as follows:
   • Permit issued on 12 May 2003 for erection of high-wall business signage in accordance with the attached endorsed plans.
   • Plans endorsed on 12 May 2003 under the permit show the name of the building 'River View'. The name of the building is 'River View House', and this name is still displayed on the building at about the fourth floor level.
   • In a request to extend the completion date under the permit made on 4 July 2007, Fivex advised the council that "development commenced on 23 April 2005". An extension to the completion date was granted on 17 July 2007 allowing Fivex until 23 April 2008 to complete the works it had purportedly commenced on 23 April 2005.
   • On 20 November 2007, Fivex wrote to the council seeking to amend the permit to replace the approved 'River View' business sign with a 'Fivex' business sign.
   • Plans were endorsed on 1 February 2008 pursuant to an amendment to the permit under section 72 of the Planning and Environment Act 1987.
   • On 11 February 2008, Fivex sought a further 12 month extension to the completion date for the permit, which "allows the erection of high-wall business identification signage". The reason given for the extension is that Fivex "is not able to secure appropriate contractors and ensure manufacture of the newly approved signage concept."
   • An extension to the completion date was granted on 28 February 2008, allowing until 23 April 2009 to complete the works permitted by the permit.
   • On 19 March 2009, the council allowed a further two-year extension to the completion date until 23 April 2011. The extension sought was "for commercial reasons'. Agents for Fivex advised the council that:

It is unlikely that they will be in a position to proceed with this signage for some time, so we are seeking an extension of two years to current expiry.

• On 8 March 2011, council allowed a further extension of two years to the completion date until 23 April 2013. The request for extension was in virtually identical terms as the request for extension in March 2009.
• On 13 June 2011, the Tribunal approved a permit for alterations and additions to River View House to construct six dwellings, a seven level office building above podium of the existing building; and for an electronic major promotion sign to be displayed at or about the fourth floor of the subject building.[3] There was no reference in this decision to the existence of the permit that is the subject of these proceedings. The signs permitted by the Tribunal have been installed and the other development approved by the Tribunal is currently under construction.
• In May 2013, agents for Fivex again applied for an extension to the expiry date for the permit of 23 April 2013. In support of the extension they stated:

Works related have been commenced with the installation of signage at Level 4, however the High-wall Business Identification Signs are yet to be started.

The building is currently undergoing significant renovations under a separate permit ... and it is therefore unlikely that the owner will be in a position to install the signage for some time.

We are therefore seeking a further extension of two years.

• On 15 July 2013, the council extended the dates for both commencement and completion of the works permitted by the permit. In its letter of approval, the council states that the permit will expire if the use/development is not started by 23 April 2015, and the development is not completed by 23 April 2017. In its letter of approval, the council further states:

Please be advised that the planning permit approval allows for the erection of a high wall business sign and constitutes approval for a "Business Identification sign". The Melbourne Planning Scheme defines a 'business identification sign' as:

'A sign that provides business identification information about a business or industry on the land where it is displayed. The information may include the name of the business or building, the street number of the business premises, the nature of the business, a business logo or other business identification information.'

Should the sign not relate to a major tenant of the building, then a new permit application will need to be lodged to allow for the construction and display of a 'major promotional sign.'

Please ensure that a copy of this letter is attached to the permit.

• In April 2015 Fivex sought a further five-week extension to the commencement date of the permit. The application for extension of time confirmed that "no work done on site - off-site manufacture commenced - commenced installation of power supply".
• On 21 April 2015, an extension of time of five weeks was granted so that the permit will not expire if the development is not started by 29 May 2015 and the development is not completed by 29 May 2017. The letter of approval repeats the advice in the previous letter dated 15 July 2013 that the permit allows for the erection of high-wall business sign and constitutes approval for a business identification sign. It further advises that should the sign not relate to a major tenant of the building, then a new permit application will need to be lodged to allow for the construction and display of a major promotional sign.
• On 29 May 2015, the endorsed plans were amended by way of secondary consent under the permit to change the lighting for the signs to LED white lights and to change the shape of the lettering for the Fivex logo. These changes applied to the sign on the south façade of the building.
• On 11 May 2016, the endorsed plans were amended by secondary consent under the permit to allow similar changes to the sign on the north façade of the building. In approving these changes, the council again reiterated its advice that the permit allows for the erection of a high-wall business sign and constitutes approval for a business identification sign, not a major promotional sign.
• In May 2017, Fivex applied to amend the permit "to allow for 'electronic signage' and endorse the revised plans. The changes to the signage seeks to replace the individually internally illuminated LED letters to an LED screen."[4]
• This application to amend the permit was refused by council on 20 July 2017. Fivex did not apply to review the refusal.
• On 19 September 2017, Fivex applied to extend the display of the signs for an additional 15 years. In its application, Fivex states that the permit was to expire on 12 May 2018. It further states:

The plans endorsed to this permit were most recently amended and endorsed on 11 May 2016. The permit allows for the 'Fivex' branding positioned at the top of the existing building on site, on the northern façade and facing Flinders Street. The signs were erected in 2016.

Clause 52.05-1 'Advertising Signage' within the Melbourne Planning Scheme that [sic] states:

'A permit for a sign other than a major promotion sign expires on the date specified in the permit. If no date is specified, the expiry date is 15 years from the date of issue of the permit.'

Given there is no expiry on the planning permit, we consider the above to apply in which case Planning Permit No. TP03/219 is due to expire on 12 May 2018.

In support of this application Fivex contended that the signage is attached to the building and has been used to promote businesses located within the subject site; that the existing signage allows for reasonable business identification; and the intensity of commercial uses for the subject site as part of the CCZ identifies it as being a suitable location for business signage.

• The application to extend the permit for 15 years was refused by the council on 16 November 2017.

How have the parties characterised the signs?

1. It is apparent from this background that both Fivex and the council have always characterised the signs allowed by the permit as high-wall signs and business identification signs. It is not until after the council refused to extend the permit for a further 15-year period and the implications of clause 52.05-4 were raised that there is any suggestion on the part of either the council or Fivex that the signs were wrongly characterised as business identification signs and should be characterised as major promotion signs.
2. It is also relevant that when Fivex applied for a new permit for the existing Fivex signs following council's refusal to extend the permit, the permit application was to:

Continue display of High-wall Illuminated Business Identification Signs.

1. It was not an application for major promotion signs. Notwithstanding this description, the council officer assessed the permit application as for major promotion signs. One of the grounds of refusal was:
   1. Fivex do not occupy a major tenancy within the existing building, and the purpose of the proposed signs are therefore considered to be promotional in nature, failing to comply with the policies and advertising sign requirements of Clause 22.07 (Advertising Signs).
2. It is not until this point in time, nearly 15 years after the permit was first granted and after numerous extensions and amendments, that the council suggests that the advertising signs appear to have been mischaracterised as business identification signs as distinct from major promotion signs.
3. At the hearing, council argued that the signs should not be characterised as business identification signs because there is an insufficient nexus between Fivex and the businesses being carried out on the land. The council referred to a number of Tribunal decisions, which have grappled with the distinction between a business identification sign and a major promotion sign: they include Becton Corporation Pty Ltd v Melbourne CC_[5]__, Melbourne Grand Apartments Pty Ltd v Melbourne CC[6]_ and Brady Vision Pty Ltd v Melbourne CC[7].
4. On behalf of the council, Mr Townsend submitted that the following principles emerge from these decisions:
   • In order to categorise a sign, one must have regard to its purpose - i.e. the purpose of the sign[8] and the nature of the sign's message[9].
   • In order to be a business identification sign, the content of the sign must sufficiently relate to the business or industry undertaken on the land. There must be a reasonable relationship for the sign to serve a business identification purpose.[10]
5. Applying these principles, the council argued that a major promotion sign and a business identification sign have different purposes. In the present case, Fivex does not conduct business on the site. The purpose of the sign is to promote the Fivex brand. The signage should be characterised by its dominant purpose, which in this case means the signs are major promotion signs.
6. For its part, Fivex submitted that the signs can be characterised as business identification signs. Fivex is a New South Wales based property development and property management company, which has owned the subject site in excess of 15 years and is currently committed to major refurbishment and expansion of the building. Whilst not a major tenant of the building, it has a presence on site from which it manages the building. It was submitted that the signs could fall into more than one category and, in the present case, that includes the category of business identification signs as well as major promotion signs.

1. At this stage in my decision I am concerned with how the signs as erected should be characterised. This will inform how the signs in the new permit application should be characterised, as they are the same as the signs already erected.
2. Permits for signs are notorious for the variety and imprecision of their wording, and the way in which they stray from definitions in the planning scheme. This observation applies in the present case. I was told that at the time the permit was issued in 2003, the Melbourne Planning Scheme contained definitions of business identification sign and major promotion sign in identical terms to those it contains today. Conversely, the scheme has never contained a definition of 'business signage', and the use of that term in the permit is not the use of any clause 73 sign term.[11]
3. I do not consider that the failure of the permit to describe what the permit allows in the precise terms included in clause 73.02 means that the type of sign permitted cannot be characterised by reference to the definitions in clause 73.02. The characterisation of a sign is a question of fact.
4. It is well established that a sign may fall within more than one classification under clause 73.02. Clause 52.05-2 explicitly provides for signs which may be classified by more than one of the clause 73 terms. It provides that:

If a sign can be interpreted in more than one way, the most restrictive requirement must be met.

1. This has been acknowledged by the Tribunal in cases such as RW & MM Anderson Nominees Pty Ltd v Greater Geelong CC (Amended)[12], Woolworths Pty Ltd v Surf Coast SC[13] and TAG Winchelsea Pty Ltd v Surf Coast SC[14].
2. As the cases demonstrate, the exercise of classification is not always clear-cut and sometimes tribunals reach different conclusions about similar signs. Thus, decided cases will be useful in analysing why the Tribunal has characterised a sign in one way or another, but they will not be determinative of a particular proposal. In deciding how a sign should be characterised, the facts and circumstances of each case must be considered in the context of the definitions contained in the planning scheme.
3. In deciding whether the signs should be characterised as business identification signs or major promotion signs, the size of the signs is not a determining factor. Each sign has an area of 46.85 square metres. The signs' size well exceeds 18 square metres, which would put them into the category of major promotion sign (as distinct from promotion sign) if it can be said that the sign promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold or for hire on the land or in the building on which the sign is sited.
4. In RW & MM Anderson Nominees Pty Ltd v Greater Geelong CC, the Tribunal considered that 'promotion' necessarily involves some inducement for the viewer to acquire the product or attend the event.[15]
5. In that case, the sign in question was in association with a service station and displayed four fuel types with prices on four panels on two sides of the steel structure. The fuel types and prices would be changed manually. In finding that the sign was not a promotion sign (the sign being less than 18 square metres in area), the Tribunal distinguished the case of Woolworths v Surf Coast SC[16] in which a sign displaying petrol prices at a Safeway outlet was held to be a promotion sign. In distinguishing the Woolworths decision, the Tribunal said:

[84] ... The sign in that case was not confined to the display of prices for various petroleum products. It also advertised the availability of discounts, which can only be interpreted as an inducement to the viewer to purchase those products. The proposed sign in this case carries no similar inducement.

[85] There may be a fine line between signs which only convey information and those which go on to induce a purchase, but there is a clear conceptual distinction nonetheless. Which side of the line a particular sign may fall depends upon the wording of the sign and the circumstances of the particular case.

1. In the case of TAG Winchelsea Pty Ltd v Surf Coast SC, the Tribunal there preferred to follow the Woolworths case in respect of a very similar type of sign, which displayed the price of fuel, rather than distinguishing it, as the Tribunal did in RW & MM Anderson Nominees Pty Ltd. In reaching its conclusion that the sign was a promotion sign, the Tribunal said:

[57] We agree with the council that sign 1 is also a promotion sign. We consider that the display of petrol types together with petrol prices is promotional because it publicises the sale of petrol on the site and encourages drivers to purchase petrol from that particular service station. Sign 1 does not merely identify the business and nature of the business activities conducted on the land, it promotes the sale of petrol and the price of the petrol. Relevantly the area of the sign displaying the petrol types/brands and petrol prices is the largest part of sign 1, with the pricing information especially prominent. This lends further support to our characterisation of the sign as a promotion sign.

1. In deciding not to adopt the same approach to characterising the sign as the Tribunal in RW & MM Nominees Pty Ltd, the Tribunal in TAG Winchelsea Pty Ltd made the point that:

[61] It is evident from the above that there are different approaches, consistent with Mr Peake's submission. Our findings about the characterisation of the sign are based on the proposal before us and the facts in this case have informed our assessment that sign 1 is a promotion sign as well as a business identification sign.

1. In each of these three cases involving service station signs, the signs in question included business logos and petrol prices. In other words, there were different components to the signs. In other cases, such as Becton Corporation Pty Ltd v Melbourne CC, Melbourne Grand Apartments Pty Ltd v Melbourne CC and Brady Vision Pty Ltd v Melbourne CC, the signs in questions have consisted solely of business names such as 'Becton', 'Central Equity' and 'Brady Vision'.
2. In the case of Becton Corporation Pty Ltd, the Tribunal decided that the Becton sign should not be allowed because it was a promotion sign as distinct from a business identification sign. The Tribunal said:

[17] There is in my opinion a "grey" area in between both definitions. However, past decisions of this Tribunal have found that in order to categorise a sign, one must to have regard to its purpose. The purpose of the Becton sign appears to me to be promotion of the company and its interest in the site as opposed to making people aware as to the activity or business undertaken on the subject land. While the lines are very blurred in my opinion, I am not convinced that Becton will retain a significant ongoing interest in the site once construction is completed.

1. In Melbourne Grand Apartments Pty Ltd, four Central Equity signs were approved. The Tribunal characterised them as business identification signs on the basis that Central Equity intended an ongoing interest in the site through the occupation of commercial premises within the building. It found that the size of the occupancy was not relevant on the basis that the definition of a business identification sign does not require such signage to be associated with a business of a minimum size of occupancy. Conceivably, any size tenancy could seek business identification signage. The Tribunal went on to say:

[24] However, to be a business identification sign, I find that the content of the sign must sufficiently relate to the business or industry undertaken on the land. I agree with Council that there must be a reasonable relationship for the sign to serve a business identification purpose. The retention of the signage lot within the ownership of Central Equity for example would not be in my view sufficient for the purposes of this definition because there would be no business or industry conducted on the land. As set out above Central Equity's association with the building as its developer is insufficient for the signage to be considered business identification.

[25] If there was no business being undertaken on the land by Central Equity, I find that the signs would clearly be major promotion signs. As to whether the signs are both business identification signs and major promotional signs, I find as follows:

• I do not agree with Mr Twite that the signs could be categorised as major promotion signs simply by virtue of the size of the signs being 18m2 or greater. Rather this is the difference between a promotion sign and major promotion sign.
• Signs traditionally categorised as business identification signs associated with a business conducted on the land also have an inherent role in promoting the company in question. I accept that the signs will promote the brand "Central Equity" in the same way as other business identification signs such as the NAB signs promote the bank as well as the business location at 500 Bourke Street. I do not consider that this automatically makes the signs fall into the category of a major promotion sign.
• This is recognised in the decision of Asia Pacific Hotels Pty Ltd v Melbourne CC [2009] VCAT 2492 as follows:

There is also a steady mix of business identification signs, often being smaller signs at street level. However if the opportunity arises to look up to the tops of the various CBD office buildings, many such buildings feature a corporate logo or name, usually on the top of the office walls or otherwise on the roof area. I understand that these logos/names usually both signify that the relevant company/authority is associated with that building but in addition the sign can provide additional public exposure or "branding". A very common situation here is that the anchor tenant of the building has this branding opportunity....

• The fact that the signs will also promote Central Equity is acceptable provided that there is sufficient link to the business or industry on the land.

1. In the case of Brady Vision Pty Ltd, the Tribunal characterised the Brady Vision signs as major promotion signs -

[15] ... as they are more than 18m2 in area and promote the developer of the building, "Brady" and the name of the tower apartment complex "Vision". These fall squarely within the range of 'any other matter' and also promotes the business of "Brady" even though its business is not provided in or from the building. ...

[17] I have considered the nature of the signs message, i.e. a matter of their purpose. The message is of two parts. The company name 'Brady' and the apartment name 'Vision'. One presents the company name in a general manner - not specific to any one Brady business including building management or the like. The word 'Vision' is the name of the building associated with the apartment complex, but is not of itself a business or industry. The word is in my view to indicate a branding of the residential component of the building.

[18] Given these points, I consider that the signs fall within the terms of 'high wall', 'internally illuminated' and 'major promotional' signs. The word Brady is about a business but only as a general sense of promoting the name or brand, not a business within the building. Thus the signs are not business identification signs within the definition at clause 73.

1. In the present case, I have concluded that the Fivex signs are business identification signs because:
   • Fivex is the owner and manager of the building.
   • The building is a Fivex building and is promoted on the Fivex website as part of the Fivex folio of properties.
   • Fivex has a business premises within the building. It is not large, but I find it constitutes a sufficient presence of the business on the land to fall within the definition of business identification sign, especially having regard to the nature of the Fivex business.
   • The purpose of the signs is to identify the building as a Fivex building where the nature of the business undertaken by Fivex is to own and manage commercial buildings.
   • The sign provides business identification information about a business on the land where it is displayed.
   • Fivex is directly associated with the building. Whilst the sign provides public exposure or branding for Fivex, this does not prevent the sign from being a business identification sign.
2. I find that the signs are not major promotion signs because they are not promoting any goods, services, event or any other matter provided, undertaken or sold or for hire on the land or in the building. In this context, I do not consider that the signs are a branding exercise for Fivex unrelated to anything that is occurring on the land. A branding exercise unrelated to anything occurring on the land, such as the Becton signs were found to be in the Becton Corporation case, would fall within the ambit of "any other matter" in the definition of major promotion sign. However, in the present case, the branding associated with the signs is for the building itself. The Fivex signs identify the building as a building owned and operated by the Fivex business. In this respect, I find the signs fall squarely within the definition of business identification sign.
3. As a separate issue, I find that the signs have been considered to be business identification signs by both the council and Fivex from the time the permit application was initially made, and the permit was granted in 2003[17], throughout the various extensions of time and alterations to the signs. For example, in 2007 when it was proposed to replace the approved 'River View' business sign with a 'Fivex' business sign, it was submitted in support of the change that Fivex was the landowner and has naming rights to the building. In association with recent extensions to the permit, the council has repeatedly emphasised that the permit constitutes approval for a business identification sign. A similar understanding of the character of the sign as business identification was expressed in the application dated 19 September 2017 by Urbis on behalf of Fivex for an extension of time for 15 years for the permit.
4. Whilst the expressed understanding on the part of both the council and Fivex as to the business identification nature of the signs is not determinative, I find this common understanding supports my finding that the purpose of these signs has always been for business identification about the name of the building and, since amendment of the signs from 'River View' to 'Fivex', the name of the business that owns and manages the building, and the fact that this is a Fivex building.

1. Notwithstanding the description in the permit of 'highwall business signage', I do not consider that this creates some form of 'innominate' sign term. I consider that the signs allowed by the permit should be characterised according to the sign terms contained in clause 73.02 of the planning scheme. The signs may fall within more than one of these terms.
2. For the reasons I have given, I find that each of the Fivex signs is a high-wall sign, an internally illuminated sign and a business identification sign. I do not find that, in addition, they are major promotion signs.

1. The council raised two issues about whether the permit had expired:
   • Whether the development authorised by the permit ever validly commenced by 12 May 2005?
   • Whether the permit has expired pursuant to clause 52.05-4?

1. The permit issued on 12 May 2003 contained condition 6, which provides as follows:
   1. The time for commencement of the erection of the advertising sign hereby authorised is, pursuant to Section 68(1) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion is specified as 2 years from the date of such commencement.

The time within which the erection of the sign is to be commenced or completed may on application made before or within 3 months after the expiry of the permit be extended by the responsible authority.

1. When Fivex made its first application for an extension of time on 4 July 2007, it advised the council that "development commenced on 23 April 2005". An extension to the completion date was granted allowing Fivex until 23 April 2008 to complete the works it had purportedly commenced on 23 April 2005.
2. In granting the extension, the council did not request any clarification about how the development had commenced or question the veracity of this assertion.
3. Two further extensions of time to complete the development were granted before a further request was made in May 2013. This request was made by architects for Fivex who stated that works are yet to be started. In response, the council extended the dates for both commencement and completion of the works. In doing so, the council did not challenge the assertion that works were yet to be started or query the apparent discrepancy between this statement and earlier representations that the works commenced on 23 April 2005.
4. There was one further extension of the permit for commencement of the works in April 2015 until 29 May 2015 with completion by 29 May 2017. It was within this period that the two signs were finally erected.
5. When the permit was issued on 12 May 2003, the time for commencement of the erection of the signs was two years from the date of issue of the permit, namely 12 May 2005. If works commenced on 23 April 2005, then condition 6 was complied with and there was a valid permit on foot, which could be extended in terms of time for completion. However, if this assertion was wrong and works had not commenced under the permit before 12 May 2005, as later suggested in May 2013, then because there was no extension to the time for commencement back in 2005, the council submitted that the permit expired on 12 May 2005 by reason of the operation of section 68(1)(a) of the Planning and Environment Act 1987.[18]
6. The council submitted that Fivex must demonstrate that the permit did not expire on 12 May 2005.
7. Fivex concedes that it is unable to provide any direct evidence as to precisely what the nature of the works commenced on 23 April 2005 were. They may have been internal brackets, power supplies and cabling, external frames, or bored channels for cabling, none of which would have been apparent externally. Certainly, the signs themselves were not erected until 2015 and 2016.
8. However, Fivex says that in circumstances where the council has repeatedly and expressly accepted that works under the permit commenced on 23 April 2005, and has purported to extend and amend the permit on numerous occasions on the basis that the permit was still in force and had not expired, and where it has never previously suggested that there exists any doubt when works commenced, the council is estopped from calling the validity of the permit (prior to 12 May 2018) into question.
9. I agree with Fivex on this point.
10. The concept of estoppel in planning cases is subject to the very important principal that estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.[19]
11. However, there is no suggestion in this case that the council should be estopped from exercising its discretion in any way. Rather, where council has repeatedly exercised its discretion to amend the permit and to extend time for completion on the basis of its acceptance that there is a valid permit which can be amended or extended, then I find that the council is estopped from denying the validity of the permit and, by necessary implication, the validity of its decisions more than 11 years later and after exercising its discretion on this basis on more than six occasions. This was in circumstances where Fivex relied upon the decisions taken by the council to amend and extend the permit and ultimately erected the signs pursuant to the permit. I find that in these circumstances the council is estopped from denying the validity of its decisions based on its acceptance of the ongoing validity of the permit.
12. I therefore do not consider it is necessary to make a formal finding about whether the development authorised by the permit ever validly commenced by 12 May 2005. I accept that the permit has been validly extended and amended over the years since 2005. I find that the permit has not expired pursuant to condition 6 or the operation of section 68 of the Planning and Environment Act 1987, and that the permit was a valid permit until 12 May 2018, which is the date upon which the council says the permit expired by operation of clause 52.05-4.

Has the permit expired pursuant to clause 52.05-4?

1. Clause 52.05 of the planning scheme deals with signs. Its purpose includes:

To regulate the development of land for signs and associated structures.

1. Clause 52.05-1 provides that this clause applies to the development of land for signs. Clause 52.05 contains a comprehensive scheme of requirements relating to signs. It integrates with clause 73.02, which lists terms that may be used in the planning scheme in relation to signs and includes definitions.[20]
2. Whilst some of the content of clause 52.05 has changed between now and when the permit was issued on 12 May 2003, many of the provisions relevant to this proceeding remain the same. One such provision is clause 52.05-4[21], which provides as follows:

A permit for a sign other than a major promotion sign expires on the date specified in the permit. If no date is specified, the expiry date is 15 years from the date of issue of the permit.

1. Another provision that has changed somewhat but not in substance is the requirement for a mandatory condition in a permit for a major promotion sign that specifies an expiry date.
2. As at 12 May 2003, clause 52.05-5 provided as follows:

A permit for a major promotion sign must include conditions that specify:

• An expiry date, which is not less than 10 years or more than 25 years from the date of issue of the permit unless a local policy specifies a different expiry requirement.

1. The current equivalent provision is to be found in clause 52.05-9, which provides as follows:

A permit for a major promotion sign must include conditions that specify:

• An expiry date that is 15 years from the date the permit is issued unless otherwise specified in this clause. This does not apply to a permit for major promotion sign for a special event or temporary building shrouding.

A permit for a major promotion sign may specify an expiry date other when 15 years, but the date must not be less than 10 years or more than 25 years from the date the permit is issued.

1. A key issue in contention is whether the permit has expired pursuant to clause 52.05-4.

1. The council says that the permit is a permit for a sign other than a major promotion sign. There is no expiry date specified in the permit. Consequently, the expiry date is 12 May 2018, which is 15 years from the date of issue of a permit. Accordingly, the council submits that the permit has expired.
2. In terms of its argument that the permit is a permit for a sign other than a major promotion sign, the council reconciles its argument on this point with its submission that the signs should be characterised as major promotion signs by saying that the permit itself is for 'high wall business signage', which is a composite of two terms in clause 73.02 of the planning scheme, namely high wall sign and business identification sign. Whilst the sign might also fall within the definition of major promotion sign, that is not what the permit is for.
3. I find this argument by the council unconvincing. It seems to be a case of the council 'wanting to have its cake and eat it too'. In the event, nothing turns on it because I have already made a finding that the Fivex signs are not major promotion signs. I agree with the council that the permit itself is not a permit for a major promotion sign - it is a permit for 'high wall business signage'. It is therefore clear, in my view, that the permit is not a permit for a major promotion sign and it is therefore a permit for a sign other than a major promotion sign. On this basis, I therefore find that clause 52.05-4 applies.
4. However, whilst the permit may be a permit to which clause 52.05-4 applies, Fivex submitted that the expiry date of the permit is not 15 years from the date of issue of the permit. Rather, Fivex contends that an expiry date is specified in the permit. The combined effect of the commencement/completion condition (condition 6) and the Permit Expiry Information on the back of the permit is that the permit has specified an expiry date as follows:
   • The permit specifies that it will expire if the erection of the sign has not commenced within two years from the date of issue of the permit (or such other time as subsequently approved by the responsible authority); and/or
   • The permit specifies that it will expire if the construction of the sign has not been completed within two years from the date of issue of the permit (or such other time as subsequently approved by the responsible authority).
5. Fivex submits that the erection of the signs approved under the permit commenced before the relevant specified date and was completed before the relevant specified date. It follows that the permit has not expired.
6. In the alternative, Fivex submitted that, upon its proper construction, clause 52.05-4 does not, and cannot lawfully, operate in a manner that:
   • Is inconsistent with section 68(3) of the Act; or
   • Section 6(3)(e) of the Act.
7. According to Fivex, it follows that clause 52.05-4 does not, and cannot lawfully, operate to deem a permit to have expired in circumstances where:
   • The development permitted by the permit has started in the time specified in the permit; and
   • The development permitted by the permit has been completed within the time specified in the permit; and
   • The use permitted by the permit has started within the time specified in the permit; and
   • The use has not been discontinued for a period of two years.

1. I agree with Fivex that the permit has not expired pursuant to condition 6 or the operation of section 68 of the Act because the erection of the signs approved under the permit commenced before the relevant specified date and was completed before the relevant specified date. However, I disagree with its contentions that because there were dates specified in the permit for the purpose of section 68, they must be considered to be an expiry date for the purpose of clause 52.05-4 and consequently, the permit can only expire in accordance with those specified dates, not 15 years from the date of issue of the permit. I do not agree that the provisions of clause 52.05-4 are contrary to the provisions of section 68. I also disagree with the contention by Fivex it would be unlawful to construe clause 52.05-4 as operating to deem the permit to have expired in circumstances where the permit has not expired pursuant to section 68.
2. Fundamental to my analysis of this issue is the fact that there is more than one way for a permit to expire, either under the Act, the planning scheme or the conditions of the permit.
3. Also fundamental are the well-recognised principles of statutory interpretation that:
   • A construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object;[22]
   • The task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy;[23] and
   • Context should be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise;[24]
4. Section 68 of the Act sets out various scenarios as to when a permit will expire. The scenarios included in section 68 depend for the most part upon certain times being specified in the permit for the happening of certain events/actions, such as the start of a development, the completion of a development, the start of a use, the certification of a plan of subdivision etc.
5. Section 68 does not include the words or any reference to an 'expiry date'.
6. Section 68 does not state that these are the only scenarios that will determine when a permit will expire. A permit may expire in other circumstances too. For example, section 62(2)(c) of the Act contemplates that a permit for a use may be issued that allows the use for a specified time. Use for a specified time is a different scenario to any of the scenarios set out in section 68. If the time specified in a permit for a use for a specified time expires, it is arguable that the permit expires at that time, unless there are other continuing aspects or conditions of the permit.
7. Section 62 of the Act sets out what conditions can be put on permits and section 68 sets out when a permit expires. These provisions operate independently of the planning scheme provisions. However, it is the planning scheme pursuant to which permits are granted, not the Act itself. Thus, Division 1 of Part 4 of the Act, which includes sections 62 and 68, deals with permits required by planning schemes. Section 47, which deals with applications for a permit, commences with the words: "If a planning scheme requires a permit to be obtained for use or development of land ...".
8. The objectives of the planning framework established by the Act include in section 4(2) the following:

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

1. Section 6 sets out what a planning scheme can provide for. Section 6(1)(e) provides that a planning scheme for an area may make any provision which relates to the use, development, protection or conservation of any land in the area. This is a very broad provision. It is amplified by section 6(2), but without limiting subsection (1).
2. Section 6(3) sets out several things that a planning scheme cannot do. These matters relate to existing uses and development of land.
3. Clause 63 of all planning schemes deals with existing uses. Specifically, clause 63.01 sets out the extent of existing use rights. Clause 63.01 embodies the constraints of section 6(3) of the Act. It also creates other scenarios whereby existing use rights may be established, for instance where there is proof of continuous use for 15 years established under clause 63.11. In Kraan v Cardinia SC[25], the Tribunal noted that it is the planning scheme that establishes existing use rights:

[28] Planning legislation and planning schemes have always acknowledged and protected existing use rights. In broad terms, an existing use right arises where a use has commenced lawfully even though subsequent changes to the planning controls would mean that the use was no longer permitted.

[29] It is the planning scheme that establishes existing use rights, not the Planning and Environment Act. The Planning and Environment Act 1987 provides that planning schemes are the principal way of controlling the use, development and protection of land in Victoria[26]. Section 6 of the Act sets out what a planning scheme can provide for. Section 6(1)(b) provides that a planning scheme may make any provision which relates to the use, development, protection or conservation of any land. However, section 6(3) provides that, subject to sub-sections (4) and (4A), nothing in any planning scheme or amendment shall prevent the continuance of the use of any land, building or works for any purpose for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be). The exceptions set out in sub-sections 4 and 4A deal with situations when the use has stopped and Codes of Practice. Thus, whilst it might be said that section 6(3) of the Act "protects" existing use rights, in reality it is the planning scheme that protects existing use rights. All that section 6(3) does is to place a constraint on what a planning scheme may provide for. To the extent that a planning scheme was contrary to the provisions of section 6(3), the planning scheme would be invalid.

[30] There is nothing in the Planning and Environment Act 1987 that limits the establishment of existing use rights only to those circumstances described in section 6(3). Until introduction of the new format planning schemes based on the Victoria Planning Provisions, planning schemes generally defined existing use rights by reference to uses lawfully established prior to approval of the planning control. However, as the approval date of many planning schemes and amendments receded into the past, the practical difficulties associated with proving the lawful establishment of a use prior to this date increased. Witnesses, who might attest to when the use was established and its nature, died or disappeared. Records were lost. Ironically, the longer a use was in existence the more difficult it became to prove existing use rights.

[31] In response to these problems, clause 63.01 of the Victoria Planning Provisions (upon which all planning schemes in Victoria are based) included a new means whereby an existing use right was established - proof of continuous use for 15 years established under clause 63.11....

1. Existing use rights are therefore an example of a situation where the planning scheme includes provisions that regulate the use and development of land in a way that goes beyond what is specifically mentioned in the Act. There is no reason why the planning scheme may not regulate other aspects of the use and development of land in ways that are not specifically identified in the Act so long as nothing in the planning scheme is contrary to any specific provision of the Act, unless there is a power in the Act that would authorise such a departure.
2. With respect to the expiry of permits, the Act sets out various circumstances or scenarios in section 68 as to when a permit required by a planning scheme will expire. I agree with Fivex that section 68 is comprehensive, but I do not agree that it is exclusive. Fivex says that no provision of the Act expressly authorises the inclusion in a planning scheme of a provision that would require or bring about the expiry of a permit. In my view, having regard to the very broad ambit of section 6(1)(b) as to what a planning scheme can provide for, there is no need for a specific power in the Act to include a provision that would require or bring about the expiry of a permit. The situation is similar to the inclusion of an additional existing use right in clause 63.01 of 15 years continuous use, which was discussed in Kraan.
3. I find there is nothing in the Act that says the scenarios in section 68 are the only circumstances in which a permit will expire. There is nothing in the Act to preclude a planning scheme from setting out other circumstances when a permit may expire.
4. I find this is what has occurred with respect to the expiry of permits for advertising signs in clause 52.05.
5. Clause 52.05-4 provides that a permit for a sign other than a major promotion sign expires on the date specified in the permit. If no date is specified, the expiry date is 15 years from the date of issue of the permit. There was an identical provision in the planning scheme in 2003.
6. The words of the provision necessarily imply that a permit for a sign can include a condition that specifies an expiry date. Such a condition is not mandatory unless the permit is for a major promotion sign, in which case clause 52.05-9 will apply to require such a condition. There are no restrictions in clause 52.05-4 on how short or long a period may be specified (unlike clause 52.05-9). If no date for the expiry of the permit is specified, the planning scheme operates to deem an expiry date of 15 years from the date of issue of the permit.
7. Under clause 52.05-9, if the permit is for a major promotion sign, it is mandatory to include a condition that specifies an expiry date that is 15 years from the date of the permit subject to a limited discretion to vary this time.
8. There was an equivalent provision to clause 52.05-9 in the planning scheme when the permit was first issued in 2003 that required a mandatory condition specifying an expiry date, although at the time it was for 10 years with some discretion. The fact that no such condition was included in the permit supports my conclusion that the signs allowed by the permit are not major promotion signs and the permit is not a permit for a major promotion sign, otherwise such a condition would have been included.
9. There is nothing in the Act that specifically precludes such provisions from being included in the planning scheme. Such provisions are not inconsistent with section 68(3)[27] of the Act or section 6(3).
10. Clause 52.05-4 can operate in conjunction with section 68(3). Thus:
    • If development of the sign does not start within the time specified in the permit (commonly two years) or as extended, the permit expires. If this occurs, then there will be no permit extant 15 years after the issue of the permit for clause 52.05-4 to operate on.
    • Likewise, if development is not completed within the time specified, the permit will expire and there will be no permit extant in 15 years time.
11. It is only if one of the circumstances set out in section 68(3) has not arisen and the permit has not expired under section 68(3) by the time 15 years from the date of issue of the permit expires that clause 52.05-4 will take effect. In other words, clause 52.05-4 can only operate to result in the expiry of an extant permit. Likewise with clause 52.05-9.
12. With respect to section 6(3)(e), it provides as follows:
    1. What can a planning scheme provide for?

(3) Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall -

(e) require the removal or alteration of any lawfully constructed building or works.

1. Clause 52.05-9 now requires that permits for all signs which include an expiry date must include a condition that upon expiry of the permit the sign and structures must be removed. This is a recent inclusion in the planning scheme. It did not apply when the permit was issued in 2003. I will deal with the implications of this for the signs in this particular case later.
2. However, it cannot be argued that this provision in clause 52.05-9 is contrary to section 6(3)(e) of the Act. It does not contravene the prohibition in this subsection that nothing in any planning scheme shall require removal or alteration of any lawfully constructed building or works. Rather, the planning scheme requires a condition in a permit to be included to remove the sign and structures upon its expiry if the permit includes an expiry date. It is the permit that requires removal of the development, not the planning scheme. Consequently, the provision is not contrary to section 6(3)(e).
3. Clauses 52.05-4 and 52.05-9 both include the words 'expiry date'.
4. In terms of the argument by Fivex that the operation of condition 6, coupled with information on the back of the permit about When does a permit expire? constitutes an expiry date for the purposes of clause 52.05-4, this argument is rejected for the following reasons.
5. Clauses 52.05-4 and 52.05-9 must be interpreted having regard to their purpose and context. Both provisions contemplate that a specific expiry date for the purposes of the clause may (in the case of clause 52.05-4) or will (in the case of clause 52.05-9) be specified.
6. Condition 6 cannot be regarded as an expiry date for these purposes. Condition 6 specifies time periods for the purpose of the operation of section 68 of the Act. These time periods are unrelated to an expiry date specified for the purpose of clause 52.05-4 or clause 52.05-9.
7. Whilst similar terms may be used in the different provisions, such as "expiry of permit", these words refer to different circumstances. The words used in section 68 and in the information on the back of the permit about When does a permit expire? (which is a reproduction of the provisions of section 68) apply to all permits and to each of the different scenarios set out in section 68. The times specified in condition 6 of the permit are specifically stated to be times "pursuant to Section 68(1) of the Planning and Environment Act 1987". Accordingly, I find is nothing within the wording of the permit that could be construed as an expiry date for the purpose of clause 52-05-4.
8. The Supreme Court case of Thirteenth Beach Coast Watch Inc v The Environment Protection and Anor[28] is authority for the proposition that the same words, even where used in the same piece of legislation, can have different meanings depending on the context in which they are used. In the Thirteenth Beach case, an issue arose about the meaning of the word "interests" in section 33B(2)(a) of the Environment Protection Act 1970, which was relevant to the standing of Thirteenth Beach Coast Watch Inc. On this point, Justice Cavanough said:

[8] Before VCAT, the respondents did not materially contest Coast Watch's standing. Nor did they seek to resile from that stance before this Court. Hence it is common ground that Coast Watch was duly found to be "a person whose interests are affected by the [EPA's] decision" within the meaning of s 33B(1) If that view be correct (which I need not and do not decide), then the word "interests" in s 33B(1) has a very wide meaning.

[9] Coast Watch submitted that an equally wide meaning - indeed, an identical meaning - should be given to the word "interests" in s 33B(2)(a); and that VCAT had failed to adopt such a meaning.

[10] It is true that there is a presumption of statutory interpretation that the same words should be given the same meaning wherever they appear in a statute. However, as Pearce and Geddes say, the presumption is readily rebuttable, especially in relation to a large and frequently amended Act. I would put the Act - including, relevantly, the provisions relating to the review of decisions of the EPA - in that category. I will say more about the relevant legislative history shortly. But I note at the outset that the word "interests" has many senses and shades of meaning and that it is used in s 33B in two quite different contexts - standing to appeal and grounds of appeal.

1. The Court held that the use of the word "interests" used in section 33B(1) to confer a right of review on "a person whose interests are affected by the decision" is to be interpreted in a very broad way aligned with section 5 of the Victorian Civil and Administrative Tribunal Act 1998, which confers standing, compared to its use in section 33B(2)(a), where it is used in a very narrow sense as referring to the financial, physical or other like personal interests of the particular applicant as an individual or as a corporation, as the case may be[29].
2. This leads me back to the fundamental principles I set out earlier:
   • There is more than one way for a permit to expire, either under the Act, the planning scheme or the conditions of the permit. The effect of expiry will be the same, i.e. the permit will come to an end. However, the circumstances in which this occurs may vary and may occur under different provisions.
   • The meaning of words such as 'expiry' or 'expiry date' will depend on the context in which they are used.

1. I conclude that the permit has not expired by operation of any of the provisions of section 68 of the Act. However, this does not mean that clause 52.05-4 cannot then operate. In fact, clause 52.05-4 only has any work to do in the case of extant permits or permits that have not expired by operation of the provisions of section 68 or any other provision of the Act, the planning scheme or condition in the permit.
2. I find that the permit was extant on 12 May 2018. This date was 15 years after the date of issue of the permit. Accordingly, because there is no expiry date specified in the permit for the purpose of clause 52.05-4[30], I find that the permit expired on this date, namely 12 May 2018 by operation of the provisions of clause 52.05-4.

1. Because of my finding that the permit expired on 12 May 2018 by operation of clause 52.05-4 of the planning scheme, rather than under any provision in section 68 of the Act, I do not consider it is appropriate to extend the permit under section 69 of the Act, even if this option was open to me. In my view, applications for an extension of time under section 69 are intended to apply in circumstances where the permit expires or is due to expire under section 68 of the Act.
2. An application under section 81(1)(a) of the Act is an application to review a decision of the responsible authority refusing to extend the time within which any development or use is to be started or any development completed. In this case, the development in the permit has started and has been completed, and the use has started. Therefore, the type of orders that may be made under section 85(1)(f) of the Act in respect of such an application for review are not relevant.
3. Where a permit expires due to the operation of a planning scheme, I consider the correct approach is to apply for a new permit. That is what has occurred here, and I will now deal with the merits of the permit application.

1. Fivex submitted that the question is whether the signs represent an acceptable planning outcome having regard to:
   • Their success as a built form and urban design outcome, within the vibrant character of the busy corner of Flinders Street and Elizabeth Street;
   • Whether they have any unreasonable public realm amenity impacts; and
   • Support found for the signs in planning policy.
2. Fivex relied on the evidence of David Crowder and Julia Bell.
3. Mr Crowder gave evidence that the context of the site makes it an appropriate location for the signs as proposed, however they are classified. The signs appropriately 'fit' with the architecture of the host building, in a manner that will not compromise the amenity of visual qualities of any high amenity public spaces. This includes on the Yarra River corridor or the nearby Flinders Street Station.
4. Ms Bell's evidence was that from an urban design perspective, the signs respond to the character of both Flinders Street and Elizabeth Street. They are either not visible, or not visually obtrusive when viewed from South Bank Promenade and the Evan Walker Bridge both during the day and at night time. They form one element of the diverse and intense urban environment that is the Hoddle Street Grid and the backdrop to the Yarra River Environs in this location. They are respectfully designed to ensure they preserve the cultural significance of the Shrine of Remembrance as a place of reverence and contemplation.
5. The council submitted there is already sufficient advertising signage on the site, including building identification and major promotional signage, which was approved by the Tribunal in 2010. Insofar as the southern sign is concerned, if characterised as major promotional signage, it is overwhelmingly against the Yarra Environs Policy that has enjoyed remarkable support from this Tribunal since its inception. If characterised as business identification signage, it nonetheless fails (along with the northern sign) by reason of its size, luminescence and poor integration with the building's architectural forms. Both signs will compromise the amenity of the recently approved extension to the office accommodation on the land.
6. The council relied on the evidence of Alastair Campbell. Mr Campbell gave evidence that the sign is one of the largest in terms of lettering within the CBD. The way in which the sign is characterised is relevant in terms of policy support (or otherwise) but makes no difference as to its visual impact in terms of how it sits on the building; how prominent it is; how it is viewed in terms of visual clutter; and its impact on iconic views. In Mr Campbell's opinion:
   • The signs are not integrated within the architectural forms of the building. The lettering detracts from and does not appropriately 'fit' within the vertical expression of the façade pattern.
   • The prominence and nature of the signs are not compatible with the character and environs of the river and are unsympathetic to the Yarra River Environs.
   • The signs detrimentally impact on the key view along Elizabeth Street and the view would be enhanced by removal of the northern sign.
   • The signs undermine the visual prominence of the heritage Flinders Street Station building and its landmark features.
   • They are a dominant visual element, which are out of character and insensitive to the surrounding heritage context.
   • The signs detrimentally contribute to visual pollution and visual clutter.

1. The signs require a permit under the Capital City Zone (clause 37.04-5) and the Heritage Overlay (clause 43.01-1).
2. In the Capital City Zone (CCZ2), advertising requirements are at clause 52.05. In the Heritage Overlay, a specific decision guideline to consider is whether the proposed sign will adversely affect the significance, character or appearance of the heritage place[31].
3. In clause 52.05-8, a range of decision guidelines that must be considered, as appropriate, are set out. Excluding those relating to impact on road safety, which I do not consider as relevant, they include the following:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The sensitivity of the area in terms of the natural environment, heritage values, waterways and open space, rural landscape or residential character.

• 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 cumulative impact of signs on the character of an area or route, including the need to avoid visual disorder or clutter of signs.

• The consistency with any identifiable outdoor advertising theme in the area.

• The potential to obscure or compromise important views from the public realm.

• The potential to impact on the quality of significant public views.

• The relationship to the streetscape, setting or landscape:

• 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 or landscape and natural elements.

• The ability to screen unsightly built or other elements.

• The ability to reduce the number of signs by rationalising or simplifying signs.

• The ability to include landscaping to reduce the visual impact of parts of the sign structure.

• 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 extent to which the sign displays innovation relative to the host site and host building.

• The extent to which the sign requires the removal of vegetation or includes new landscaping.

• The impact of structures associated with the sign:

• The extent to which associated structures integrate with the sign.

• The potential of associated structures to impact any important or significant features of the building, site, streetscape, setting or landscape, views and vistas or area.

• The impact of glare and illumination on the safety of pedestrians and vehicles.

• The impact of illumination on the amenity of nearby residents and the amenity of the area.

• The potential to control illumination temporally or in terms of intensity.

• The impact of any logo box associated with the sign:

• The extent to which the logo box forms an integral part of the sign through its position, lighting and any structures used to attach the logo box to the sign.

• The suitability of the size of the logo box in relation to its identification purpose and the size of the sign.

• The need for identification and the opportunities for adequate identification on the site or locality.

1. Clause 65 of the planning scheme requires that before deciding on an application, the responsible authority (and the Tribunal) must consider, as appropriate, the Municipal Planning Strategy and the Planning Policy Framework.
2. Relevant aspects of the Planning Policy Framework include:
   • Clause 22.01 - Urban Design within the Capital City Zone
   • Clause 22.04 - Heritage Places within the Capital City Zone
   • Clause 22.07 - Advertising signs
3. Clause 22.07 is of particular relevance. The objectives of clause 22.07 are as follows:

• To allow for the reasonable identification and marketing of institutions, businesses and buildings and communication of messages.
• To protect the characteristics of significant buildings and streetscapes.
• To protect important vistas from obtrusive and insensitive advertising.
• To ensure that signs in residential areas and other high amenity areas do not detract from the appearance or character of the area.
• To encourage where appropriate, signs that contribute to the lively and attractive character of an area.
• To encourage signs that improve the quality of the area.

1. Relevant policy within clause 22.07 is as follows:

It is policy that proposals are assessed against the following criteria:

• Signs should respect the building style and scale and the character of the street.
• Signs should fit within architectural forms and be integrated with the design of the building.
• Signs should not obscure architectural features of buildings, including windows.
• Wall or fascia signs should be applied directly to the building or on a flush mounted panel with minimum projection.
• Signs should not cause visual clutter. Existing signs on a building or site will be taken into account when assessing new proposals.
• An integrated approach should be taken to the provision of signage on buildings with more than one occupancy.
• Where a building is occupied by more than one business, adequate space should be made available for all occupancies to display signage.
• Signs should not interrupt important views and vistas along roads leading to and out of the Central City.
• Views of the sign from all angles should be considered and the supporting structure should be designed with this in mind.
• Promotion, panel and sky signs are discouraged.
• Illumination should be concealed within, or integral to the sign through use of neon or an internally lit box or by sensitively designed external spot-lighting.
• Cabling to signs should be concealed.
• Signs and their support should allow adequate clearance for the servicing requirements of streets and lanes.
• The design and location of new signs should respect the cultural heritage significance, character and appearance of the heritage place.
• Signs which are attached to or form part of a building (including painted signs) and which contribute to the cultural heritage significance of the place should be retained.

• Signs within the Capital City Zone should meet the requirements set out in the table to this policy.

In addition to the requirements in the table, it is policy to consider the following design requirements for areas of special character.

This applies to the Yarra River between Charles Grimes Bridge and Punt Road. The Yarra River and its environs form the landscape and recreational heart of Melbourne and are its greatest natural asset. Being a key tourist area, it is important that new signs add interest to the area's tourism and arts characteristics.

• 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.

• 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.

1. The protracted history of the permit, extensions and amendments to it, and the delay in construction of the signs and changes to their design do not reflect well on either Fivex or the council. The submissions now put by the council that the signs do not complement the style of architecture of the building and should not now be supported are not evident in reports supporting approval, variations and extensions of the permit over the years. On the other hand, Fivex is now faced with a different, tighter policy context than when the permit was first issued in 2003. The decision guidelines in clause 52.05 and the policy framework in clause 22.07 are much more detailed and conservative now than they were then.
2. Notwithstanding past attitudes to the issue of the permit in 2003 and subsequent extensions and changes to it, I must assess the merits of the current permit application based on the planning policy framework as it now exists. For example, I note that whereas in 2003 the policy in clause 22.07 stated that: Pole signs and sky signs shall not generally be supported, clause 22.07 now states: Promotion, panel and sky signs are discouraged. Within that part of clause 22.07 relating to the Yarra River Environs, the policy now includes that: Panel, promotion, pole, sky and highwall signs are discouraged on buildings visible within the Yarra River corridor. Thus, there is far less support for large, high signs than previously.
3. In Octopus Media Pty Ltd v Melbourne CC[32] the Tribunal commented on the consistent application of policy to discourage large scale billboards and promotional signs, even where expert town planning opinion suggested that the signs would not have a detrimental impact on the skyline:

[148] The Council unashamedly seeks through its planning policy to limit signage in this area to that which is necessary for business identification. It seeks to avoid large-scale billboards and other forms of promotional signs on the Melbourne skyline when viewed from the Yarra River corridor. It seeks to avoid the replacement of major promotion signs when their mandatory expiry conditions run out. It has been relentless and consistent in this planning strategy over many years. The case it ran in the 2010 VCAT proceeding for this land is but one example. As Member Read's decision in the 2010 VCAT proceeding noted, there had already been other cases at that time through which the Council sought to implement its policy.

[152] In all of these cases, and in the 2010 VCAT proceeding, the Council refusal was upheld even in the face of expert town planner opinion in each case that the relevant signs would not have a detrimental impact on the skyline. The Council referred us to other similar decisions. Neither the Council nor Octopus Media pointed us towards any recent decision of the Council or VCAT where a major promotion sign has been supported or approved in the Yarra River Environs area despite clause 22.07.

1. In Octopus Media, the Tribunal was dealing with a major promotional sign. In the present case, I have characterised each sign as being a high-wall sign, an internally illuminated sign and a business identification sign, but not a major promotion sign. Nevertheless, according to current policy, as high-wall signs, they are discouraged on buildings visible within the Yarra River corridor. On the other hand, within the same policy context, it is acknowledged that signs should: Be limited to that required for business identification purposes.
2. It is clear from reading clause 22.07 as a whole that business identification signs are regarded differently to promotion signs. Thus, one of the objectives in clause 22.07 is:
   • To allow for the reasonable identification and marketing of institutions, businesses and buildings and communication of messages.
3. Likewise, in clause 52.05-8, one of the decision guidelines is:
   • The need for identification and the opportunities for adequate identification on the site or locality.
4. Therefore, when one considers the Yarra River corridor today, virtually all the signs visible are business identification signs, not major promotion signs. This does not mean there are no signs visible within the Yarra River corridor; rather they are subdued signs of a much smaller scale than the signs in question and they do not dominate their surroundings. My own observations lead me to agree with the comments of the Tribunal in Octopus Media about the success of the council's strategy to limit signage within the environs of the Yarra River corridor.
5. In assessing the signs, I consider there is policy support for them because they are business identification signs. I do not consider that this policy support is necessarily undermined because they are also high-wall signs, notwithstanding the aspect of clause 22.07 that says high-wall signs are discouraged on buildings visible within the Yarra River corridor. From a practical perspective, it would be unusual to have a business identification sign on a large building which is not more than 10 metres above the ground, so I do not place much weight on that point.
6. Rather, in my view, when assessing the objective of clause 22.07 to allow for the reasonable identification of businesses, the critical issue is the visual impact of the signs - how they sit on the building; how prominent they are within the landscape or streetscape; how they will be viewed from different aspects; whether they will contribute to visual clutter; and their impact on iconic views. Just because they are business identification signs, rather than major promotion signs, does not mean these factors are not equally relevant.
7. In this respect I support the analysis by Mr Campbell. The factors in his analysis are not significantly different from those of the witnesses for Fivex, although their conclusions differ. The differing conclusions of the witnesses demonstrate that the assessment which must be made when applying all relevant guidelines, essentially becomes a matter of judgment.
8. In making my judgment, I have had the benefit of being able to view the signs in situ both during the day and at night when they have been illuminated.[33] This opportunity has been of particular benefit because I consider there is a qualitative difference in the visual impact of the signs during the day and at night. In my view, the size of the signs is simply too big when they are viewed in the current urban context day or night, but their size is accentuated at night by the brightness of their illumination. These factors lead me to the conclusion that the signs should not be approved.

Integration of signs with architecture of the building

1. The signs are much larger than other business identification signs in the area visible within the Yarra River corridor.
2. They sit below the parapet of the building and the letters of each sign slightly overlap the horizontal elements demarking the top floor of the building. The façades of the building on which the signs are located are quite fussy or 'busy' in their detail. I agree with Mr Crowder that the wording of 'Fivex' in white lettering compliments the existing colour and material variation of the building façade. I consider that, when seen without illumination, the signs integrate into the overall composition of the building façade. They are not out of scale with the architectural elements of the building or the size of the building. Nevertheless, they are a very prominent feature of the façades due to their size.
3. It is evident from Mr Campbell's evidence that he does not like the current façade, which was installed as part of a major refurbishment of the building in 2004. The current façade treatment means that the building is quite a dominant architectural feature when viewed from the north along Elizabeth Street and from Southbank looking north across the Yarra River. However, whether one likes the current architectural expression of the building or not, the sign must be assessed in the context of the building as it is.
4. Mr Campbell compared the size of the Fivex sign to the size of the original sign approved under the permit, which read 'River View'. The size of the sign was changed in 2007 from a height of 2.29 metres to a height of 3.5 metres. The length of the sign was reduced from 15 metres to 13.4 metres as a result of the change in wording of the signs.
5. I agree with Mr Campbell that the smaller scale of the original lettering would render the sign less prominent, but it is not relevant to say that in hindsight council "should not have amended planning permit TP-2003-217 at the time". The sign was amended to its current dimensions and this is what the current permit application is for.
6. On balance, I consider that the scale and form of the signs are relative to the scale, proportion and façade treatment of the building. Overall, I consider that the signs respect the building style and scale. They fit within the architectural form and can be said to be integrated with the design of the building when viewed in day time.
7. However, when the signs are illuminated at night, this perception of the signs changes. They are no longer seen primarily as an integrated element of the architectural treatment of the façades. Rather, they become highly prominent in their own right divorced from the detail of the facades. They are very brightly lit and stand out prominently when viewed from both the north and the south.

Impact on views from the north along Elizabeth Street

1. The critical issue when the northern sign is viewed from Elizabeth Street is whether it detracts from the dominance of the Flinders Street Station clock tower.
2. When viewed from various points along Elizabeth Street, at no point does the building or sign obstruct views to the Flinders Street Station clock tower, which stands at the focal point of the vista down Elizabeth Street. The clock tower is flanked by buildings on either side of the street with a clear space between them and the clock tower. The skyline behind the clock tower is intruded upon by buildings on the south side of the Yarra River, which provide a backdrop to it. During the day, the clock tower is a prominent architectural feature, but one within the context of a highly urbanised city environment.
3. At night however, the façade of the station buildings is illuminated, which accentuates the prominence of the clock tower at the end of the Elizabeth Street vista. The clock tower becomes the dominant element of the vista with the flanking buildings along Elizabeth Street and the backdrop buildings on the south side of the river losing their prominence. In this context, the Fivex sign, when illuminated at night, assumes a much greater prominence in competition with the illuminated clock tower and station façade.
4. In my view, the illuminated sign detracts from the quality of the vista and the heritage value of the Flinders Street Station clock tower.

1. When viewed from the Yarra River corridor, in particular from Southbank and the Evan Walker Bridge, the southern sign is particularly prominent when illuminated at night.
2. When viewed from the Evan Walker Bridge and its approaches, the sign forms part of the background to the Flinders Street Station building and clock tower. From this perspective, the clock tower is not viewed against a backdrop of uninterrupted sky but against a backdrop of the building and the sign. Given the existence of the building there is nothing that can be done about that. However, at night, the illumination of the clock tower and the station building gives these buildings a prominence that is lacking during the day. The subject building ceases to dominate views of the clock tower, however the illuminated sign detracts from this effect. The sign itself becomes a dominant, intrusive element. In my view, it detracts from the amenity of the public spaces within the Yarra River corridor, in particular on and in the vicinity of the Evan Walker Bridge.
3. Views of the building and the sign in relation to the Flinders Street Station clock tower vary from different perspectives along the length of Southbank and from Princes Bridge. From all perspectives though, the sign when illuminated is very prominent and intrusive. From my observations during my inspection, it is by far the brightest and largest of the various business identification signs seen on buildings within the CBD, which form the backdrop to the Yarra River in this area.
4. In my view, the southern sign will compromise important views from the public realm along the Yarra River corridor. It will be a dominant and intrusive element in the skyline of the city backdrop to the Yarra River. In addition, I consider it will compromise views of the heritage Flinders Street Station clock tower and adversely affect the appearance of this heritage place. I do not consider that it will contribute positively to the visual characteristics of the Yarra River corridor or improve the quality of the area.

1. Notwithstanding the integration of the design of the signs with the architecture of the building, their size makes them stand out prominently when viewed from both Elizabeth Street and the Yarra River corridor during the day or night.
2. As noted earlier, the policy framework regarding signs and application of policy in the CBD has changed since the signs were first approved in 2003. I cannot comment on the relative size of the signs compared to other business identification signs at that time. However today, the signs stand out because of their greater size compared to other CBD business identification signs. It has not helped that the size of the signs has been allowed to increase under the permit.
3. In my view, this is a situation where time, a changed policy framework and the cumulative application of this framework has led to the signs now being out of kilter with the prevailing size and form of business identification signs prevalent in the CBD, particularly those visible from the Yarra River corridor. Notwithstanding the signs currently exist and were lawfully erected under the permit, I do not consider they are now appropriate due to their size.

1. For these reasons, I consider that the signs due to their size and adverse visual effect when illuminated are not appropriate and should not be approved.
2. An essential element of the permit application is for internally illuminated signs. I do not consider that I should attempt to modify the application by removing this element or reducing their size. Rather, I consider that the permit application should be refused. If Fivex chooses to redesign the signs and make a further application for a permit for business identification signs, then such an application will need to be dealt with on its own merits.

1. I referred earlier to the provision in clause 52.05-9 requiring that permits for all signs which include an expiry date must include a condition that upon expiry of the permit the sign and structures must be removed. I noted this is a recent inclusion in the planning scheme, which did not apply when the permit was issued in 2003, and there is no such condition in the permit.
2. There were some submissions made during the hearing by both Fivex and the council relating to whether the council could require removal of the sign in the event that I found that the permit had expired, and no new permit was issued.
3. I do not intend to make any comments or rulings on this point. There is no application for any enforcement order on foot or other context in these proceedings in which this might be relevant having regard to my findings. Removal of the signs is an issue for another day.

1. It follows from my reasons that I am not prepared to make a declaration that planning permit TP-2003-2019 has not expired. Rather, pursuant to section 149A(2)(a) of the Planning and Environment Act 1987, I will make a declaration that the permit has expired.
2. In these circumstances, the application under section 81(1) of the Act to extend the permit is refused.
3. With respect to the review of the council's refusal to issue a new permit, this too is refused, and the council's decision affirmed.

[1] At the time of the application for extension of the permit and the council's consideration of it the relevant clause was clause 52.05-1. Because of Amendment VC148, which was gazetted on 31 July 2018, clause numbers in the planning scheme changed. Clause 52.05-1 became clause 52.05-4. Only the clause numbering changed, not the wording. Other clause numbers in the planning scheme also changed. In this decision I will refer to the current clause numbers. I will identify any relevant changes to wording, otherwise it should be taken that the wording remains the same before and after Amendment VC148 notwithstanding changes to the clause numbering.

[2] As a concession to the proceedings, which had been lodged at VCAT, the council allowed the signs to remain in place for the time being but directed that the illumination of the signs must cease. The applicant has complied with this direction. An exception was made on 5 December 2018 when the signs were illuminated between 8.00 - 10.00 pm to allow the Tribunal to undertake its inspection.

[3] Fivex Pty Ltd v Melbourne CC [2011] VCAT 1104

[4] The definition of an electronic sign in the planning scheme is:

A sign that can be updated electronically. It includes screens broadcasting still or moving images.

[5] [2007] VCAT 631

[6] [2018] VCAT 254

[7] [2018] VCAT 589

[8] Becton Corporation Pty Ltd v Melbourne CC [2007] VCAT 631

[9] Brady Vision Pty Ltd v Melbourne CC [2018] VCAT 589

[10] Melbourne Grand Apartments Pty Ltd v Melbourne CC [2018] VCAT 254

[11] Previously called outdoor advertising term pre-amendment VC148

[12] [2016] VCAT 1904

[13] [2006] VCAT 1039

[14] [2016] VCAT 2034

[15] [2016] VCAT 1904 at [82]

[16] [2006] VCAT 1039

[17] when the wording of the signs was 'River View', which was the name of the building at the time

[18] Alternatively the permit expired pursuant to section 68(3)(a) of the Act if the permit is considered to be for the development and use of land.

[19] Minister for Immigration v Kurtovic (1990) 92 ALR 93, at 109; (1990) FCA 22 at [12]

[20] Clause 52.05 does not deal with use of land for signs. Since the introduction of Amendment VC148, clause 62.01 of the planning scheme now provides that no permit is required for the use of land to display a sign.

[21] Formerly clause 52.05-1 in the planning scheme as at 12 May 2003

[22] Section 35 Interpretation of Legislation Act 1984

[23] Alcan (NT) Alumina v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

[24] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

[25] [2006] VCAT 1629

[26] See section 4(2)(b) Planning and Environment Act 1987

[27] Or, if relevant, section 68(1)

[28] [2009] VSC 53

[29] [2009] VSC 53 at [12]

[30] Or for the purpose of clause 52.05-1 when the permit was issued

[32] [2016] VCAT 2101

[33] I note that Ms Bell did not have an opportunity to view the signs at night when they were illuminated.