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[2001] VCAT 888
respondent. Application for review refused; no permit granted for the outdoor advertising sign; sign is prohibited under Clause 52.05-9 (Section 3) and must be removed; Responsible Authority may pursue...
The Tribunal refused Goulas Nominees' application for a permit and review because the large advertising sign did not fit any permitted categories under the Mixed Use Zone's Category 3 advertising controls in the planning scheme, exceeded the size limits in the definitions, and therefore was a prohibited sign. The Responsible Authority was enforcing the planning scheme as required and a permit could not be granted.
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1,763 words · generated 19/07/2026
Goulas Nominees Pty Ltd (trading as Conway Fish Trading) sought review under s 79 of the Planning and Environment Act 1987 of the Responsible Authority's failure to grant a permit for an existing outdoor advertising sign (Nature of proceedings). The permit application was lodged on 16 December 1999, by which time the sign had already been on display for more than 18 months [1]. The sign stood at the south-west corner of the Moreland Road / Hopkins Street intersection in Footscray, located on or just inside the splay across the corner at the campus of St Monica's Catholic Primary School [2]. It measured approximately 7.32m by 2.75m (over 20m2) and contained prominent commercial material advertising Conway Fish, including the words "TURN HERE", "FRESH FISH", the phone number and an arrow directing motorists toward Wingfield Street entry [3].
No linked legislation citations have been extracted yet.
The Responsible Authority (Maribyrnong City Council) advised the applicant and the school that the sign was illegal and should be removed; the sign remained in place and the applicant pursued a planning permit via the Tribunal [4]. At the VCAT hearing before Senior Member Russell Byard, the Tribunal analysed the planning scheme controls relevant to advertising signs in the Mixed Use Zone and concluded the sign was prohibited, refusing the review and declining to grant a permit [6]-[18]; an enforcement application by the RA was foreshadowed if the sign was not removed [22].
The Tribunal's decision turned on the planning scheme's specific regime for advertising signs and the definitions that limit which signs may be displayed. The key steps in the Tribunal's reasoning were:
Identify the zone and the applicable advertising category. The sign was within an area covered by the Mixed Use Zone; Clause 32.04-7 applies Category 3 advertising controls to that zone [6]. The Tribunal therefore read Clause 52.05-9 in the context of Category 3 [6]-[7].
Apply the three-section structure of Clause 52.05-9. Section 1 lists signs that can be displayed without a permit; Section 2 lists signs that can be displayed only with a permit and subject to conditions; Section 3 lists prohibited signs [7]-[8]. If a sign does not fall into Section 1 or Section 2 when those provisions and Clause 73 definitions are applied, it falls into Section 3 and is prohibited.
Test the sign against the defined sign types. The Tribunal considered the nine specific types that appear across Sections 1 and 2, as well as Clause 73 definitions:
Direction sign: defined as not exceeding 0.3m2 and not containing commercial information. The subject sign was many times that size and contained commercial information; it therefore could not be a direction sign [11]-[12].
Business identification sign: must identify a business "on the land where it is displayed". The Conway Fish business was not located on the land where the sign stood, so the sign could not be a business identification sign [13]-[14].
Promotion sign: defined as less than 18m2; furthermore, Section 2's condition for a promotion sign in Category 3 required advertisement area not exceed 2m2. The subject sign exceeded those dimensional limits and therefore could not qualify [15]-[17].
Because the sign failed to meet the definitions and size limits of any permitted category, it fell within Section 3 and was prohibited; consequently no permit could be granted and the review had to be refused [18]. The Tribunal declined to criticise the RA for enforcing the scheme, reminding that s 14 of the Planning and Environment Act 1987 requires the RA to carry out and enforce the planning scheme [19]. The Tribunal also noted that a planning scheme amendment could be sought via the Council if the applicant wished to pursue that route, but it expressed no encouragement for such a course and identified that enforcement proceedings might follow if the sign remained [20]-[22].
Before this decision, the planning scheme regime already provided a categorical approach to advertising signs: zones determine the applicable category, Clause 52.05-9 divides signs into three regulatory outcomes, and Clause 73 supplies definitions and dimensional limits. The Tribunal's decision applies that existing framework to the facts; it did not create new law or alter statutory interpretation in any novel way.
After this decision, the applicable legal state remains the same: in a Mixed Use Zone where Category 3 applies, signs that do not fall within the defined permitted categories and that exceed the dimensional limits are prohibited. Goulas confirms the practical and legal point that an existing unauthorised sign cannot be made lawful by a belated permit application where the planning scheme expressly prohibits that form of sign. The decision reiterates the hierarchy: zone rules determine category; Clause 52.05-9 and Clause 73 determine permissibility and dimensional thresholds.
Passage: "Clause 32.04-7 provides that Category 3 in relation to the advertising sign requirements is applicable to the Mixed Use Zone." [6]
Passage: "To ensure that signs in higher-amenity areas are orderly, of good design and do not detract from the appearance of the building on which the sign is displayed on the surrounding area." (purpose of Category 3) [7]
Passage: "'A sign not exceeding 0.3 square metre that directs vehicles or pedestrians. It does not include a sign that contains commercial information.'" (definition of direction sign) [11]
Passage: "It follows from all this that the sign comes within Section 3 of Clause 52.05-9 and is prohibited. Ultimately the parties agreed that this was the case. It follows that a permit cannot be granted and that the application for review must be refused." [18]
Passage: "The Responsible Authority does not have a great deal of scope for being 'helpful' inasmuch as it is obliged, by s.14 PE Act to carry out and enforce the planning scheme." [19]
The decision is directly applicable in any factual matrix with the following elements:
Where those elements exist, the Tribunal's reasoning confirms that the sign will be prohibited and a permit cannot be issued ordinarily.
This decision is a VCAT planning list decision of Senior Member Russell Byard. The judgment itself contains no discussion of subsequent judicial treatment and does not cite higher court authority. The decision operates as an application of the existing planning scheme provisions to a fact pattern; it is not an appellate precedent. To determine how later courts or tribunals have treated the specific points (for example, any gloss on the application of Clause 52.05-9 or Clause 73), one must conduct a targeted case-law and planning practice note search. The present judgment records the straightforward application of the scheme to a large, off-site commercial sign in a Category 3 area; it will be persuasive in comparable VCAT matters but does not alter statutory provisions or bind higher courts.
Several practical and legal questions remain open or require separate analysis beyond what the Tribunal decided here:
Planning scheme amendment prospects. The Tribunal observed that an amendment could be sought through the Council as planning authority but offered no view on merits beyond expressing difficulty in success [20]-[21]. Whether an amendment could realistically be promoted would depend on strategic planning evidence, notice and submissions processes, and broader policy, none of which the Tribunal decided.
Enforcement timing and remedies. The Tribunal noted the RA had been lenient and foreshadowed an enforcement application if the sign remained [22]. The judgment does not explore the procedural pathway the RA would take, the form of enforcement order sought, or the possible sanctions.
Off-site advertising distinctions. The Tribunal relied on the locational requirement for a business identification sign (business must be on the land where sign is displayed) [13]-[14]. Questions could arise in other fact patterns about what establishes that the sign is 'on the land' of the business, particularly where easements, access corridors or complex property arrangements exist. This decision applies the plain wording to the facts before it but does not offer a broader test for borderline situations.
Interaction with road reserve ownership and council control. The school argued the sign might be on road reserve; the Tribunal treated the zoning map as extending the Mixed Use Zone into part of the road reserve and proceeded on that basis [6]. Where title, occupation, or authority over road reserve land is disputed, there may be further legal argument about who may consent, who may be liable for enforcement, and whether different planning controls apply.
Permissible remedial avenues other than amendment. The Tribunal mentions amendment as the formal route for changing the scheme [20]. It does not address other possible regulatory avenues such as temporary signage permits (if any), variation mechanisms, or agreements that might render a sign lawful in limited circumstances. Those remain matters of planning practice and discrete statutory interpretation.
Practical takeaway: where a displayed sign clearly exceeds the prescribed definitions and dimensional limits in a planning scheme category, an applicant cannot regularise it by applying for a permit; the lawful route is to remove the sign or pursue a scheme amendment through the council as planning authority, accepting the uncertainties and time required in that process [18], [20]-[21].
RESPONSIBLE AUTHORITY: Maribyrnong City Council
This application for review is refused and no permit is granted.
Ms Rowena Barnes, Urban Planner of the City of Maribyrnong, appeared for the Responsible Authority. She presented written and oral submissions.
Mr Fred Maddern, who described himself as company spokesperson, appeared for the Applicant Company. He made oral submissions.
Various plans, photographs and other documents were tendered. The evidence and submissions presented in documentary form have been retained on the file of the Tribunal.
Application under s.79 of the Planning and Environment Act 1987 (PE Act) for review of a failure to grant a permit within the prescribed time.
Mixed Use Zone and subject to a Development Contribution Plan Overlay Schedule 6 under the Maribyrnong Planning Scheme.
1. This application for review arises for an application for a permit for an outdoor advertising sign that has, in fact, been in place and on display for more than 18 months. The permit application was made to the Responsible Authority on the 16 December 1999. The sign was already on display at that time.
2. It is located on the south-western corner of the intersection of Moreland Road with Hopkins Street in Footscray. That corner is an acute one as the angle between those streets at that corner is less than 900. However, the point of the corner is cut off with a "splay" and the sign is erected on or just in front of the fence across that splay. The land on that corner is the campus of St Monica's Catholic Primary School.
3. The sign is a large one. It is 7.32m wide by 2.75m high and it is erected above a brick wall which appears to be something in the order of 700-800mm high. Two-thirds of the sign advertises the Applicant's business and the availability of fresh fish at that business. The sign indicates that prospective customers, presumably travelling west in Hopkins Street, should "TURN HERE", that is down Moreland Street to then turn again right into Wingfield Street to find the fish business. The sign also says "FRESH FISH", "CONWAY" and "DIRECT TO PUBLIC" in blue letters on a substantially white background. The sign also displays in red on the white background "PHONE 9689-3400" and "WINGFIELD ST. ENTRY" along with the red "TURN HERE" and red arrow indicator. This part of the sign, relating to the Applicant's business, is the top two-thirds. The lower third relates to St Monica's Primary School. It is a much more modest and subdued part of the sign with white lettering on a blue background.
4. Both the Applicant and the school have been advised that the sign is illegal and that no permit can be granted for it. They have also been advised that the sign should be removed. They both appeared unwilling to hear or accept this advice, and have persisted in displaying the sign, notwithstanding such advice, for one and a half years.
5. The first task then, was to ascertain whether the claim that the sign is prohibited is well founded.
6. The sign is in a Mixed Use Zone. A letter had been written on behalf of the school claiming that the sign was in fact not on the school's land, but on the road reserve in front of that land. However, the planning scheme map tendered on behalf of the Responsible Authority clearly shows that the Mixed Use zoning extends not only to the school campus, but also into the Morton Street road reserve to the extent of half the width of that street. Thus, even if the sign is in the road reserve rather than on the school property (which I must say is not at all apparent on the evidence) it is nevertheless still in the Mixed Use Zone so that the Mixed Use zone controls in Clause 32.04 of the planning scheme are applicable to it. The controls in relation to outdoor advertising signs are found in Clause 52.05 of the planning scheme but the category of those controls applicable in a particular instance are specified in the Zone provisions. Clause 32.04-7 provides that Category 3 in relation to the advertising sign requirements is applicable to the Mixed Use Zone.
7. Clause 52.05-9 contains the controls applicable to Category 3 which relates to high amenity areas of medium advertising limitation. The purpose of this category is:-
"To ensure that signs in higher-amenity areas are orderly, of good design and do not detract from the appearance of the building on which the sign is displayed on the surrounding area."
The Scheme of Clause 52.05-9 is that it contains a table in three sections. Any sign in Section 3 is prohibited. Any sign in Section 1 can be displayed without the need for a permit. Any sign in Section 2 can only be displayed if a planning permit is obtained and any condition specified in the table is complied with.
8. There are three types of signs specified in Section 1 and seven in Section 2. If this sign giving rise to the current proceedings does not fit within the definition of one of those nine types of signs, it must be a prohibited sign.
9. On an initial check through the nine specified types of signs, Mr Maddern agreed that the sign now in question is clearly not one of six of those specified, and he is clearly right in that concession. It is not a bed and breakfast sign or a home occupation sign in Section 1, nor is it an above-verandah sign, a floodlit sign, and internally-illuminated sign, a pole sign or a reflective sign in Section 2. All this is quite apparent, just from a glance at one of the photographs of the sign tendered in evidence.
10. This left as possibilities a direction sign under Section 1 and a business identification sign or a promotion sign under Section 2. Mr Maddern submitted that it is a direction sign. If was right, then no permit would be needed for its display.
11. In fact it is clearly not a direction sign. That term is defined in Clause 73 of the Planning Scheme as:-
"A sign not exceeding 0.3 square metre that directs vehicles or pedestrians. It does not include a sign that contains commercial information."
12. The actual sign does not satisfy this definition. Apart from anything else its area of over 20m2 far exceeds the limit of 0.3m2. When this was pointed out, Mr Maddern readily agreed that this is not a direction sign. In any event, it also contains commercial information.
13. Business identification sign is defined in Clause 73 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."
14. Business identification sign cannot apply because the business is not "on the land" where the sign is displayed. Again Mr Maddern agreed that this was so.
15. The final option is promotion sign. That expression is defined in Clause 73 as :-
"A sign of less than 18 square metres 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."
16. Although this sign might well be described as a promotion sign on the basis of what it displays, it exceeds the limit of 18m2 and so is not a promotion sign as defined. Mr Maddern agrees that it cannot be a promotion sign within the definition for this reason.
17. Furthermore, it cannot be a promotion sign within Section 2 of Clause 52.05-9 because promotion sign there is subject to a condition that reads:-
The area of this sign vastly exceeds 2m2 and thus, even if it was a promotion sign of less than 18m2 it would not come within Section 2 unless, in fact, its area did not exceed 2m2.
18. It follows from all this that the sign comes within Section 3 of Clause 52.05-9 and is prohibited. Ultimately the parties agreed that this was the case. It follows that a permit cannot be granted and that the application for review must be refused.
19. Mr Maddern complained that he and the company considered that the Responsible Authority had been less helpful than they wished in relation to the sign in question. The Responsible Authority does not have a great deal of scope for being "helpful" inasmuch as it is obliged, by Section 14 PE Act to carry out and enforce the planning scheme. Thus it has a public duty to prevent and rectify the display of illegal signs such as this one.
20. Mr Maddern apparently thought the Responsible Authority might be more helpful in relation to securing an amendment to the planning scheme to allow the sign to be displayed. There is nothing to prevent the applicant company seeking an amendment, if it thinks that course worth pursuing, and there has been nothing to prevent it doing so in the past. It must make its approach to the Council of the City of Maribyrnong in its capacity as a planning authority under the PE Act, rather than as a Responsible Authority under the Act. Pursing that course does not justify the continued display of the presently illegal sign.
21. What I have said in the last paragraph should not be taken to be any encouragement to pursue the possibility of obtaining a planning scheme amendment. It is not my role to assess such a proposal, if one is brought forward. Nevertheless, I would think that such a proposal would be a difficult one to successfully promote in all the circumstances.
22. Rather than criticise the Responsible Authority for being unhelpful, the Applicant might be grateful that the Responsible Authority has been so lenient in allowing such a clearly illegal sign to remain in place whilst the Applicant has pursued his current application for review. The Responsible Authority has not sought an enforcement order to date, but I gather from an intimation by Ms Barnes that such an application is likely if the sign is not now promptly removed.
Application for review refused; no permit granted for the outdoor advertising sign; sign is prohibited under Clause 52.05-9 (Section 3) and must be removed; Responsible Authority may pursue enforcement.