Application under section 77 of the Planning and Environment Act 1987

Application under section 149 of the Planning and Environment Act 1987

Clause 43.02 - Design and Development Overlay - Schedule 8

Clause 44.05 - Special Building Overlay - Schedule 1

Any sign not listed in Sections 1 or 2 is prohibited pursuant to Section 3 of Clause 52.05-3

The review site is located on the south-west corner of the intersection of Kings Way and Dorcas Street in South Melbourne. It is irregular in shape and is presently developed as a single storey commercial building comprising two tenancies including a Star Mart retail premises for the adjoining service station. An existing sign is located on the roof of the southern part of the building of approximately 84.8 square metres.

The broader area is characterised by a mix of architectural styles and built form but is predominantly a commercial area with some mixed use and residential to the south and east of the review site.

An unaccompanied site inspection was undertaken after the hearing.

1. Ilex Holdings Pty Ltd (applicant) has applied to the Council to amend the Permit to allow for the illumination of a sign by electronic means.
2. The Port Phillip City Council (Council) is the responsible authority in these proceedings.
3. Both Council and Ilex agree that that the proposal to amend the Permit is prohibited under the current planning controls.
4. Where the parties disagree, is that:
   1. Council submits the proposal falls outside of any right(s) accrued under the Permit and so the application to amend the Permit should be refused; and
   2. Ilex submits to the contrary, that the application to amend the Permit should be approved because the rights which have accrued under Permit encompass the changes sought.
5. Proceeding P882/2019 is an appeal by Ilex pursuant to section 149 of the Planning and Environment Act 1987 (PE Act) in relation to the refusal by the Council to endorse plans incorporating the same amendments to the plans as that now sought in Proceeding P83/2019 under secondary consent.

1. Planning Permit S3650 issued on 9 March 1993 in respect of the land at 240 Kingsway South Melbourne allows:

Erection of an illuminated panel promotion sign on the roof of the existing building.

1. Ilex has applied to the Port Phillip City Council (Council) to amend the Permit for the construction of works associated with the Permit.
2. There are two proceedings before the Tribunal, namely:
   1. an application for review against the refusal by the Council to amend the Permit for the review site (Amendment Application); and
   2. an application for review against Council's decision to refuse to endorse plans incorporating the same changes to the plans as that sought under the Amendment Application by way of secondary consent (Secondary Consent Application).
3. On 21 November 2018, Council refused Ilex's planning permit application to amend the Permit on the following grounds:
   1. The sign is prohibited pursuant to Clause 52.05 of the Port Phillip Planning Scheme.
   2. The proposed new sign structure is visually intrusive and contrary to the provisions of clauses 22.08 and 52.05 of the Port Phillip Planning Scheme.
4. Council no longer relies on the second ground following the substitution of amended plans for the application plans in the Amendment Application.
5. On 1 April 2019, Council refused to endorse an application to amend plans approved under Condition 2 of the Permit by way of secondary consent on the following grounds:
   • The change to electronic format constitutes a transformation of the proposal;
   • Primary consent is required to display an electronic sign;
   • An electronic sign in excess of 3m2 is prohibited within the Mixed Use Zone; and
   • The proposal is contrary to Condition 5 of the planning permit as, by virtue of its design, an electronic sign would be considered to be intermittent and of changing colour.

1. Is the proposal prohibited under existing planning controls?
2. What rights have accrued under the Permit?

1. Does the amended proposal fall within the rights that have accrued under the Permit?

1. Alternatively, should this permit be amended by way of secondary consent?
2. In relation to the secondary consent application:
   1. Do the amended plans result in a transformation of the proposal?
   2. Do the amended plans authorise something for which primary consent is required under the Planning Scheme?
   3. Are the amendments of no consequence having regard to the purpose of the Permit and/or the planning control under which the Permit was granted?
   4. Are the amendments contrary to a specific requirement in the Permit which itself cannot be altered by consent?

1. Amended plans were filed with the Tribunal and served on all parties in accordance with VCAT Practice Note PNPE9. These plans delete the 'cage' element and reinstate the existing structural elements of the existing sign under the Permit.
2. The Council indicted at the commencement of the hearing that if the Tribunal was minded to substitute the amended plans for the application plans in Proceeding P83/2018, it would no longer pursue the second ground of refusal in the Amendment Application relating to visually amenity concerns.
3. With consent, I substituted the amended plans for the application plans. The plans now before me are the same in both VCAT proceedings.
4. Having substituted the amended plans for the application plans, the parties agreed that the issues between them are narrowed to the legal issues rather than visual amenity issues.
5. The application to amend the Permit was referred to VicRoads who advised it does not object to the grant of the amended Permit provided conditions are included should a planning permit be granted.
6. The applicant submitted that it accepts the conditions proposed by VicRoads and there was now no need to call Ms Dunstan, traffic engineer, to give her evidence in relation to traffic matters. Council did not oppose this and it was agreed Ms Dunstan was not required to give evidence at the hearing.
7. The applicant also submitted that if the Tribunal was minded to grant an amendment to the Permit, it would accept a condition for the amended Permit to expire 15 years from the date it is issued.
8. The applicant put its case on the basis that although it has applied to amend the Permit by way of secondary consent, its primary submissions rely on the Amendment Application.

1. On 26 April 2018, the Council submits it received an application to amend the Permit to:

1. Change the single sided illuminated major promotion sign to a digital display; 2. To reconfigure and change the sign structure; and

1. Amend the plans to reflect the display of an electronic major promotion sign with new supporting structure comprising: 1. Replacement of the existing (static) panel with an electronic panel; 2. No change to the size or orientation of the sign; and 3. Construction of a new 'cage' structure to support and surround the sign which is to be constructed of a powder coated steel frame with a perforated mesh cladding infill. This structure was to measure 20.6 metres long and 6.99 metres high and was not to be illuminated.
2. The digital sign is proposed to be internally illuminated by way of energised electronic pixels.
3. On 14 May 2019, the applicant filed an application to amend plans incorporating the following changes:
   1. Removal of the cage element from the plans and elevations; and
   2. Retention of the existing structural element.
4. The Council accepts that the amended proposal will be essentially the same as the existing static sign in terms of its location, size and orientation.
5. The electronic sign was intended to operate with a dwell time of 30 seconds. The applicant submits that is increased to 60 seconds to comply with VicRoads' conditions and the sign is not proposed to be animated (that is, showing moving images such as videos) but to display moving still images.

IS THE PROPOSAL PROHIBITED UNDER CURRENT PLANNING CONTROLS?

1. In relation to the planning controls affecting the review site:

1. The review site is within the Mixed Use Zone pursuant to the Planning Scheme; 2. Under the Mixed Use Zone, the review site is within a Category 3 area under clause 52.05;

1. No planning permission is required under the Design and Development Overlay - Schedule 8 and more particularly Precinct 9a; and

1. A permit is required under the Special Building Overlay - Schedule 1 to construct a building or construct or carry out works but this relates to the Melbourne Water Main Drain and is not relevant to these proceedings.
2. Clause 52.05 is a Particular Provision under the Planning Scheme relating to signs.
3. The purposes of clause 52.05 are:

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

To ensure signs are compatible with the amenity and visual appearance of an area, including the existing or desired future character.

To ensure signs do not contribute to excessive visual clutter or visual disorder.

To ensure that signs do not cause loss of amenity or adversely affect the natural or built environment or the safety, appearance or efficiency of a road.

1. Clause 52.05-2 provides that a sign in Section 3 is prohibited and must not be constructed or put up for display. Any sign not listed in Sections 1 or 2 is prohibited pursuant to Section 3 of clause 52.05-3.
2. Existing signs are dealt with pursuant to Clause 52.05-5 which provides:

A sign that was lawfully displayed on the approval date or that was being constructed or put up for display on that date may be displayed or continue to be displayed and may be repaired and maintained.

The content of a lawfully displayed sign may be renewed or replaced. However, a permit is required if:

• The display area is to be increased.
• The renewal or replacement would result in a different type of sign.

A sign that is reconstructed must meet the relevant sign requirements.

1. Clause 73.02 (Sign Terms) includes the following sign terms:

Animated sign A sign that can move, contains moving or scrolling parts, changes its message, flashes, or has a moving or flashing border.

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

Floodlit sign A sign illuminated by external lighting provided for that purpose.

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

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

Promotion sign 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.

1. On or above the roof of a building, but not a verandah;
2. Fixed to the wall of a building and which projects above the wall; or

1. Fixed to a structure (not a building) so that part of it is more than 7 metres above the ground.

Sign Includes a structure specifically built to support or illuminate a sign.

1. Clause 52.05-13 sets out Category 3 - High Amenity Areas that apply to medium limitation areas. The purpose in these areas is to "ensure that signs in high-amenity areas are orderly, of good design and do not detract from the appearance of the building on which a sign is displayed or the surrounding area".
2. A permit is required pursuant to Clause 52.05-13 for an electronic sign, a floodlit sign, an internally illuminated sign and promotion sign.
3. The parties agreed that the proposed sign can be categorised as an electronic sign, a major promotion sign or a sky sign under the current sign definitions in clause 73.01 of the Planning Scheme.
4. A permit is required to display an electronic sign, however the display area must not exceed 3 square metres.
5. As the proposed sign is in excess of 84 square metres, it is currently prohibited if the proposed sign is regarded as an electronic sign. Neither a major promotion sign or a sky sign are listed in Sections 1 or 2 and accordingly they would also be prohibited.

1. Under the planning controls that apply to the review site as they presently stand, a planning permit could not be granted for the proposed sign at the review site. This is common ground between the parties.
2. However, the parties agree that it is not common ground whether any rights which may have accrued under the Permit extend to the proposal such that the Permit should be amended.

WHAT ARE THE GENERAL PRINCIPLES RELATING TO 'ACCRUED' RIGHTS?

1. Mr Morris QC for the applicant made a number of general submissions about the notion of 'rights' and 'accrued rights' in issue in this proceeding.
2. The power to seek an amendment to the Permit is pursuant to section 72 and following provisions of the PE Act. This is said to be a different type of power to the power to grant a fresh permit. The scope of that different type of power has been considered in a number of recent authorities (which I refer to below).
3. Ultimately, the applicant considers that its position is not dissimilar to that of the Council because it turns on the interpretation of the Permit. This, the applicant says is common ground.
4. However, the applicant submits that the first step is to ask what is the scope of the Permit when one seeks to amend that Permit because the (existing) Permit will influence what can be amended.
5. This is often referred to in the context of 'accrued rights'. It derives from section 28(2) of the Interpretation of Legislation Act 1984 which provides that where a subordinate instrument, which includes a planning scheme, is amended, the amendment, in the absence of an express contrary intention, shall not:
   1. Affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provisions.

1. Mr Morris QC for the applicant submits that the preferable term should simply be a 'right' rather than an 'accrued right' (although he admits nothing turns on this for the purposes of this proceeding). However, Mr Morris QC says so because if there is a change to an instrument under which a person has a right, that person is said to have 'accrued' a right and is entitled to rely on that 'accrued right'. However, Mr Morris QC submits that it does not apply in the case of a Permit because any changes to the planning scheme which have occurred because of the introduction of the definition of the term 'electronic sign' and changes to the zoning of the review site, do not actually affect the Permit. The Permit continues to provide that 'right' notwithstanding a change to the planning scheme. One has to use the language of accrued right if the planning scheme does change that right or purports to affect that right. That is not the case with a planning permit. Mr Morris QC prefers to refer to the 'right' under the Permit than the 'accrued right' for this reason.
2. In case, it is common ground that the planning scheme has changed since the Permit was granted in 1993 such that the proposal would now be prohibited unless the ambit of any accrued rights or rights under the Permit can be found to extend to the proposal in the Amendment Application.
3. In this case, the relevant subordinate instrument was the Port Phillip Planning Scheme (being the former the South Melbourne Planning Scheme)[2] and the right which has accrued is the right allowed by the Permit. The extent of that right is discussed below.
4. For completeness, it was not submitted by any party that there is any express contrary intention in the PE Act nor the Port Phillip Planning Scheme, in force either before or after the relevant dates that the planning scheme amendments which make either an electronic sign greater than 3 sqm or a panel sign or a major promotion sign or even a sky sign prohibited under the Port Phillip Planning Scheme that would affect the Permit as a right accrued under the Port Phillip Planning Scheme.[3] I have proceeded on the basis that there is no such express contrary intention and the Permit is a right that has accrued under the Port Phillip Planning Scheme.
5. The next task is to define the scope of the right that has accrued under the Port Phillip Planning Scheme. In this regard, I agree with recent comments made by the Tribunal that I am to construe a statutory provision that is designed to protect or preserve a right (such as section 28(2) of the IL Act) liberally as the language and its context allows.[4] The scope and extent of a right accrued under the Permit depends on a careful analysis of what the Permit allows, its conditions and any endorsed plans or other document approved under the Permit.[5]
6. In the decision of Alkero Development Pty Ltd v Stonnington CC (Red dot)[6] the Tribunal considered an application to amend a permit subsequent to the amendment of the relevant planning scheme which made the permitted development prohibited. The Tribunal determined that the scope of rights that have accrued under a planning permission are limited to what the permit allows, rather than what would have been allowed at the time the relevant permit was granted.
7. The Tribunal also found that it is appropriate to consider the implications of the operation of rights accrued under a subordinate instrument separately in the context of use and development.
8. Mr Morris QC respectfully submitted that he disagrees with the words in underline at paragraph [62] in Alkero:

[62] If a planning permit is amended to introduce a new development control, a permit must be obtained under that control. This does not apply if there is an existing permit for development and the accrued right arising under the permit pursuant to section 28(2) of the Interpretation of Legislation Act 1984 is sufficiently broad to encompass the development for which a permit is now required under the new planning controls, as was the situation in Callea and Brimbank CC v LS Planning Pty Ltd. However, we do not consider the terms of the permit in the present case are sufficiently broad to encompass the permissions now required under the GRZ5 and SLO1. These specific controls are not mentioned in the permit, whereas other specific controls are. We consider that where there is a series of permissions given under named controls, the non-inclusion of permissions under other controls means that no permission for them exists. The permit would need to be amended to give the required permissions. Because they are new permissions, they must comply with the current provisions of the planning scheme. Such amendments could not authorise a development which is prohibited.

1. Mr Morris QC said that the preferred view is now espoused in the decision of Jezmac, where the Tribunal found that the subject of a right accrued in a permit is the description of the matter for which a permit is granted as expressed in what the permit allows (together with the conditions, endorsed plans and other documents approved under the permit) regardless of whether the source(s) of the permission for the matter is included or specified in what the permit allows.[7] Further, in Jezmac, the Tribunal said:

In recent years there have been many changes to the Victorian Planning Provisions as part of a Government planning reform program. Some residential zones have been deleted and new residential zones introduced. Changes have been made to other zones. Existing overlays have been amended. Overlays have been applied to land not previously subject to such overlays. Provisions in schemes in a section known as 'Particular provisions' have been amended or introduced. All these changes have sometimes introduced a new permission to develop and/or mandatory or preferred requirements for development.

If the new permission can be characterised as being for the same matter (or forming part of the same matter) as in the permit, the effect of the accrued right under the permit includes the additional permission. For example, if the matter allowed under the permit is 'construction of a building' no additional permission should be needed under any new provision of the scheme that requires permission to construct a building.

It does not matter, in my opinion, that the purpose, objectives or the decision guidelines under the new provisions may be different to those provisions considered when the permit was granted. In my opinion, this is giving effect to the IL Act provision that a right under a permit is not affected by subsequent amendment or repeal of the scheme. The important proviso to this principle is, as stated in the IL Act, unless the amendment or repeal of the scheme includes an express contrary intention.

1. I respectfully agree with the applicant's submissions that the decision made in Jezmac is the preferred approach. I have applied those principles in these proceedings.

WHAT CAN BE TAKEN INTO ACCOUNT WHEN INTERPRETING A PLANNING PERMIT?

1. Before I turn to my assessment of the extent of any accrued right under the Permit, I need to consider the matters which should inform the making of that assessment.
2. The Council submits that the planning officer's report dated 9 March 1993 would assist in the interpretation of the Permit in what it allows.
3. The applicant submits that the planning officer's report is not relevant in these proceedings because there is no ambiguity to be resolved in the interpretation of the Permit.
4. A number of authorities have considered what can be taken into account regarding interpretation of planning permits.
5. It has been previously found that the interpretation of a permit must be gleaned from the words used in that permit and that generally, it was impermissible to go behind the permit. The reasoning is essentially that permits run with the land and a person who may occupy the land may not be familiar with the antecedent history to the permit. Being a public document, it is both required and intended to be interpreted on its own terms. The permit should speak for itself and any person reading it should be able to adduce its meaning and act upon that meaning.[8] It has been said that it is the equivalent to a document on title.
6. Given this principle, the applicant submits that one should be very careful about taking into account extraneous materials in interpreting the Permit. The starting point is to have regard to the Permit, and any document incorporated by the Permit. One is also entitled to have regard to the planning controls in force at the date the Permit was granted where the Permit uses words that are defined in that instrument because a permit will sometimes use words with a technical meaning referred to in the planning scheme as at the date the permit was granted. However, the applicant submits that one should hesitate at referring to the planning officer's report, and certainly any documents created after the permit was granted or indeed subsequent amendments to the planning scheme because those documents could not possibly inform the grant of a planning permit granted at a particular point in time.
7. However, extrinsic materials can be used to interpret a permit when it is ambiguous or unclear and the materials might logically assist in resolving the issue of how the permit should be properly interpreted.[9]
8. It has also been found that:
   1. where a permit expressly or impliedly incorporates a plan or other document in whole or in part, it is necessary to examine those sources to arrive at a proper interpretation of the permit; [10] and
   2. when interpreting ambiguous provisions in planning permits, it is legitimate to admit evidence of the objective matrix of facts and circumstances in which the permit was issued, but not the subjective intentions and understandings of the parties.[11]
9. This begs the question whether the Permit is ambiguous or unclear in what it allows such that one is permitted to look to extrinsic materials as an aid to construction of the Permit. That is, the need to consider surrounding circumstances arises when looking at the Permit alone, its meaning is ambiguous.
10. The concept of 'ambiguity' that operates here is not a restrictive one. It is not restricted to 'lexical' or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful.[12]
11. However, it is a fundamental principle that the extrinsic materials or evidence of surrounding circumstances, if reference to them is warranted at all, must be confined to what can be objectively ascertained.

1. I agree with the applicant's submission that a Permit must be interpreted having regard to its terms, and the planning controls in force at the time the Permit was granted. Commonly, a permit will use language defined in the relevant planning scheme at the time of the grant, and, where this is the case, terms in the permit will have that meaning.
2. In this case, I find it difficult to see how it could be said that the Permit is ambiguous on its face. The preamble simply allows for the 'erection of an illuminated panel promotion sign on the roof of the existing building'. There is nothing ambiguous or unclear particularly about the key words in this context about the type of sign in question by reference to 'illuminated panel promotion' that which I can see.
3. Therefore, I find that I cannot look to the planning officer's report in this instance to assist me in resolving any perceived ambiguity in this regard. What the Permit allows is not ambiguous and so I must interpret the words used in the Permit.

WHAT WERE THE RELEVANT PLANNING CONTROLS AT THE TIME THE PERMIT WAS GRANTED?

1. The parties independently conducted searches of the planning controls in effect at the time the Permit was issued. There is no dispute about which controls applied. For example, the parties agree that the review site was zoned Light Industrial pursuant to the South Melbourne Planning Scheme at the time the Permit was issued. The extracts provided for that zone are dated 4 March 1993.
2. Other extracts of the purported controls that applied are dated before and after the Permit was issued but the parties agree that the controls are those which applied at the time the Permit was issued. I have also proceeded on this basis.
3. The sign was in category 6 of the table at clause 18-5 under former clause 110-5.
4. Clause 18-5.6 in respect of Category 6 (limited control) areas contained in the Metropolitan Regional Section provided that a sign such as that proposed was a Section 2 sign requiring planning permission.
5. Within the South Melbourne Planning Scheme at the time there existed a number of definitions of relevance:

A sign that can move, contains moving parts, changes its message, flashes or has a moving or flashing border.

A sign illuminated by external lighting provided for that purpose.

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

A sign with an advertisement area exceeding 10 square metres.

A sign on land or a building that advertises either:

- Goods or services not provided, produced or sold on the land or in the building.

- An event or competition not conducted on the land or in the building.

An advertisement and any structure built specifically to support it.

1. I record that Mr Morris QC for the applicant referred me to the classifications of sign permits under the Port Phillip Advertising Signs Policy Review 2007 with reference to the draft 'Outdoor Advertising Guidelines' dated October 2007 which he said applied in 1993 under the planning scheme at the time the Permit was granted. In 1993, one had to consider a sign by its physical shape / form, nature of the message and the location of the sign.
2. I have not taken into account the Port Phillip Advertising Signs Policy Review 2007 given that I am able deduce the ambit of the Permit from the words themselves (refer to discussion above and below)

1. The Permit was approved by the South Melbourne Council Planning Committee under delegation on 9 March 2019.
2. The preamble to the Permit allows:

Erection of an illuminated panel promotion sign on the roof of the existing building.

1. On 11 June 1993, plans comprising drawings nos. A1 and S2 were endorsed under the Permit together with a cover letter dated 8 June 1993 prepared by Nettlefold Advertising enclosing the plans.
2. The endorsed plans do not show the lighting of the sign.
3. Council submits that the sign is currently flood lit or externally illuminated.

1. The Permit includes the following conditions:
   1. No buildings and works shall commence until amending plans are submitted to and approved by the Responsible Authority showing:

(i) the size of the proposed illuminated promotional sign is to be reduced by 10m2.

(ii) the existing "Chapman Motors" sign facing Kingsway is to be removed prior to the erection of the illuminated promotion sign on the roof of the building.

(iii) the overall height of the sign shall not exceed 10 metres above natural ground level.

When approved, the plan(s) shall become the plan(s) endorsed with this permit and shall form part of this permit.

1. The use and layout of the site and the size of the proposed buildings and works, including the materials of construction, as shown on the endorsed plan shall not be altered or modified without the written consent of the Responsible Authority (or its Delegate). This requirement applies to all alterations modification or other changes including those to achieve compliance with any statute, statutory rule, regulation or local Laws.
2. This permit shall expire if:-

1. The development does not start within 2 years of the date of the issue of this permit; and

1. Is not completed within 1 year of the date this development was started;

The time within which the development is to be commenced or completed may, on application made before or within the three months after the expiry of the time specified, be extended by the Responsible Authority and where the time is extended after the permit has lapsed the extension shall operate to revive the permit as from the date it expired.

1. No advertising sign, notice, advertisement or the like except a sign:-
   1. which complies with the City of South Melbourne Outdoor Advertising Sign Policy; and
   2. which complies with Clause 18 of the South Melbourne Planning Scheme

shall be displayed on the site or to attached to the building except with the prior written consent of the Responsible Authority or its Delegate.

1. Any illuminated sign on the land the subject of this permit shall comply with clause 18 of the South Melbourne Planning Scheme and shall not be flashing, intermittent or of changing colour.
2. The sign(s) permitted by this permit shall be maintained to the satisfaction of the Responsible Authority or its Delegate.
3. The Permit does not include an expiry date save for requiring the development to be commenced within two years of the date of the Permit and completed within one year of the date that development commenced.
4. The Council does not contest that the Permit has been acted upon and continues to remain in effect, albeit it says that the lighting appears to be floodlit and not internally illuminated. I have proceeded on the basis of these facts.

IS THE PROPOSAL PROHIBITED OR DOES IT FALL WITHIN AN ACCRUED RIGHT UNDER THE PERMIT?

1. The Council submits that the accrued rights under the Permit extend only to the right to erect an illuminated panel promotion sign by virtue of the Permit preamble and the constraints of the conditions including Condition 5 which specifically precludes the sign from being 'flashing, intermittent or of changing colour".
2. The Council also submits that the Permit does not allow and nor did it approve any digital sign, whether it be electronic or animated.
3. Further, the Council submits that:

Whilst technology in relation to advertising signage has changed since the Planning Permit was issued and the form of electronic sign now proposed may not have been in existence at that time. This does not lead to the view that such signage has accrued rights under the Planning Permit.

1. the Permit refers to 'illuminated' rather than 'internally illuminated' , the latter being the definition that existed at the time in the South Melbourne Planning Scheme. An externally illuminated sign would have appropriately fallen within the definition of a 'floodlit sign' at the time and accordingly the reference to 'illuminated' is to 'internal illumination' not external illumination. 2. An electronic sign would have appropriately been categorised as an 'animated sign' at the time which was a sign 'that can move, contain moving parts, changes its message, flashes or has a moving or flashing border'. The use of the word 'or' should be taken to indicate that the definition does not require a sign to contain all these attributes.

1. The very characteristics of the proposed sign would have required planning permission at the time for an 'animated sign' because even though the electronic images are still and not 'movie', it does not mean that the images do not move or that the messages do not change. An animated sign was not applied for and never approved.

1. In this case, the Council submits that the electronic sign proposed can move and contain moving parts, changes its message, rather than being static and flashes.
2. The Council says the other factors that are relevant to its submission about the extent of any accrued right are:

1. The luminance / brightness of the electronic sign is intended to alter as is evidenced in the lighting impact assessment submitted with the application during different times of the day, which itself results in changing colours. 2. An illuminated sign is not the same as an electronic sign because lighting a sign does not allow for or contemplate changing images, a digital screen and lighting/colours that changes throughout the day at regular internals.

1. Electronic signs by their nature typically have a greater impact than static signage and that the Tribunal has accepted that electronic signs involved moving images and that those signs were brighter, more eye catching and more visible in daylight hours.[13]

1. An electronic, internally illuminated interchangeable sign is a different type of sign than the illuminated sign permitted under the Permit and that the accrued rights under the Permit do not extend to a change in the format of the sign authorised under the Permit. 2. The applicant's interpretation would allow without the need for any further permission, a fundamentally different sign with different and greater impacts than that contemplated, and approved by Council and constructed on the review site. It would have wide reaching implications for many existing permits issued for signage under the old format planning scheme where there was no definition of 'electronic sign'.

1. The applicant submits that the existing sign under the Permit could fall within a number of sign terms under the South Melbourne Planning Scheme.
2. However, in effect, the proposal is simply to illuminate the existing sign in a different way.

1. The applicant submits that in terms of the physical perception of the review site, what is significant in this case is that Council has not pursued a ground on the merits. The only barrier to the grant of an amended permit is a legal impediment and given that is the context, I should have no fear in reaching an outcome amending the Permit given the effective 'consent' position between the parties on the merits in circumstances and where there are no third party objectors.
2. The applicant contests that there is no difference between electronic signs and internally illuminated signs. It was put that the authorities relied on by the Council about the negative impact of electronic signs are considered old authorities and less weight should be applied to those decisions.
3. Instead, the applicant drew my attention to former Member Rundall's decision in 498 Bridge Road[14] where he found that luminance would not be unduly prominent in that case because the lighting would be adjustable and sensitive to time and the conditions of each day and night_._ In that case, the applicant submits that former Member Rundall concludes the new sign will be better than the existing sign because of the capacity to regulate the luminance.
4. The applicant then drew my attention to the Port Phillip Advertising Signs Policy Review prepared for the Council by Hansen Partnership Pty Ltd dated September 2007[15]. The applicant submits that this document refers to Kings Way as 'traffic sewer' with major urban design challenges that should have its own urban design guidelines and is a key area for major promotion signs. It notes that the review site is located in a Mixed Use Zone (which is considered an anomaly).
5. I was urged by the applicant to consider this context in a case where there should be no fear of allowing an amended permit and the amended sign provided the applicant can satisfy the Tribunal that it is open for me to do so.
6. I record that the Council took issue with this submission as irrelevant to the issue of accrued rights under the Permit, which I consider is the correct approach.

1. The applicant contends the Council's submission that the Permit does not allow nor approve any digital sign (whether it be electronic or animated) is not supportable. It says the Permit allows 'an illuminated panel promotion sign'. A digital sign can be a 'panel sign' or a 'promotion sign' and an 'illuminated sign'. Whilst it is true the Permit did not expressly authorise a digital sign, it did not specify that a digital sign is not approved.
2. The applicant submits that the terms 'illuminated panel promotion sign', 'illuminated sign', 'externally illuminated sign' and 'electronic sign' were not defined terms within the South Melbourne Planning Scheme at the time the Permit was granted. I accept the submission by the applicant that this is readily explicable because in 1993 technology had not yet been developed in such a way as to create what we now understand to be an electronic sign for the purposes of the advertising.
3. Mr Morris QC also gave the example of the 'Skipping Girl' sign as a classic animated sign.
4. However, the terms 'panel sign' and _'_promotion sign' were defined in the South Melbourne Planning Scheme when the Permit was granted.
5. The applicant submits that both the current sign, and the proposed digital sign fall within these definitions, such that the proposed digital sign will remain within the scope of the Permit granted with regard to these terms. For example, the proposed amended sign will be:
   1. 'a sign with an advertisement area exceeding 10 square metres' (panel sign); and
   2. 'a sign on land or on building that advertises either: goods or services not provided, produced or sold on the land or in the building; an event or competition not conducted on the land or in the building' (promotion sign).
6. Therefore, insofar as the proposal is a 'panel sign' or a 'promotion sign', the amended permit will remain so.

1. In relation to whether the proposal is for an 'illuminated sign', the concept of 'illumination', as a standalone term, was not defined in the South Melbourne Planning Scheme when the Permit was granted. Hence, that word has its ordinary meaning.
2. The applicant provided the following definitions from Oxford English Dictionary in its submissions:

Light up, give light to, make bright by light, decorate with lights

The act of illuminating with light, the fact or condition or being illuminated with light, a lighting up, a supply of light.

1. The applicant submits a question that one must consider is will the proposed digital sign be illuminated? The applicant says plainly 'yes'. This is because the existing sign is also an illuminated sign.
2. The applicant submitted that the planning scheme might have appropriately referred to the existing sign as a 'flood lit sign' because the illumination is external. But regardless of whether it is internal or external it is an 'illuminated sign'. And likewise, the digital sign will be an illuminated sign. The reason it will be an illuminated sign is because the sign will 'light up' (as per the definition of 'illuminate') using light-emitting diodes.
3. The applicant referred to the definition of light-emitting diode (or LED) and commentary in Wikipedia:

A light-emitting diode (LED) is a semiconductor light source that emits light when current flows through it. Electrons in the semiconductor recombine with electron holes, releasing energy in the form of photons. This effect is called electroluminesce. The color of the light (corresponding to the energy of the photons) is determined by the energy required for electrons to cross the band gap of the semiconductor. White light is obtained by using multiple semiconductors or a layer of light-emitting phosphor on the semiconductor device.

LEDs have many advantages over incandescent light sources, including lower energy consumption, longer lifetime, improved physical robustness, smaller size, and faster switching. LEDs are used in applications as diverse as aviation lighting, automotive headlamps, advertising, general lighting, traffic signals, camera flashes, lighted wallpaper, plant growing light, and medical devices.

In a light emitting diode, the recombination of electrons and electron holes in a semiconductor produces light (be it infrared, visible or UV), a process called "electroluminescence". The wavelength of the light depends on the energy band gap of the semiconductors used. Since these materials have a high index of refraction, design features of the devices such as special optical coatings and die shape are required to efficiently emit light.

With the development of high-efficiency and high-power LEDs, it has become possible to use LEDs in lighting and illumination. To encourage the shift to LED lamps and other high-efficiency lighting in 2008 the US Department of Energy created the L Prize competition. The Philips Lighting North America LED bulb won the first competition on August 3, 2011, after successfully completing 18 months of intensive field, lab, and product testing.

Efficient lighting is needed for sustainable architecture. As of 2011, some LED bulbs provide up to 150 lm/W and even inexpensive low-end models typically exceed 50 lm/W, so that a 6-watt LED could achieve the same results as a standard 40-watt incandescent bulb. Displacing less effective sources such as incandescent lamps and fluorescent lighting reduces electrical energy consumption and its associated emissions.

LEDs are used as street lights and in architectural lighting. The mechanical robustness and long lifetime are used in automotive lighting on cars, motorcycles, and bicycle lights. LED street lights are employed on poles and in parking garages. In 2007, the Italian village of Torraca was the first place to convert its street lighting to LEDs.

1. The applicant submits that Electroluminescence (EL) is defined in Wikipedia as:

An optical phenomenon and electrical phenomenon in which a material emits light in response to the passage of an electric current or to a strong electric field. This is distinct from black body light emission resulting from heat (incandescence), a chemical reaction (chemiluminescence), sound (sonoluminescence), or other mechanical action (mechanoluminescence).

1. The applicant contends that the notion that LEDs will illuminate the sign is hardly controversial.[16]
2. In other words, the applicant submits there is more than one way to create light. Further, the applicant submits that the concept of an 'illuminated sign' extends to illumination by light emitting diodes.
3. Accordingly, the proposed conversion of the existing sign from static to digital format falls within the scope of the Permit.
4. In relation to the Permit conditions, the applicant submits that the proposed conversion of the sign from static to digital format will not conflict with the conditions of the Permit. Alternatively, in the section 72 application, those conditions can be amended or changed so as to avoid any conflict within the Permit.
5. The applicant stated in reply to the Council's reliance on the term 'animated sign' that it does not provide any assistance because it is not a term that was used in the Permit. In applying the principle in Vesty, it is not relevant.
6. In any event, in the 1993 definitions, the expression 'animated sign' must be taken to mean 'animated advertisement' that can move or cannot move parts or change messaging and so forth because of the very definition of 'sign'. However, because none of those facts relate to the proposal, the applicant submits that it is therefore of no assistance to the Council's case.

1. I accept the submissions by the applicant and find that the sign, when changed to digital, remains an 'illuminated sign' as permitted by the Permit. This is because the nature of illumination is proposed to change from illumination by external lighting, to internal illumination by way of energised electronic pixels but it nevertheless remains an illuminated sign.
2. Had the Permit sought to limit the scope of 'illumination' to that of a 'floodlit' sign (in accordance with the sign currently located on the review site) the preamble could have made this restriction clear. Particularly given 'floodlit sign' was a defined term within the South Melbourne Planning Scheme at the time the Permit was granted. The same would apply with reference to 'internally illuminated' which was defined also and yet it chose not to do so.
3. The fact the officer's report may make reference to 'internally illuminated' is irrelevant because I am not entitled to look at the planning officer's report. Rather, the Permit itself is plain on its face and applying the principle in Vesty, there is no capacity to look at that officer's report.
4. I also find that the sign remains a panel promotion sign based on the definitions of 'panel sign' and 'promotion sign' under the planning scheme at the time the original permit was granted.
5. I do not consider as the Council's suggestion that such an interpretation would have wide reaching implications for many existing permits issued for signage under the old format planning scheme where there was no definition of 'electronic sign'. Any consideration of accrued rights will need to be considered on a case by case basis for the ambit of the relevant planning permit in question and what is proposed to be amended. Here the Permit allows the erection of an illuminated panel promotion sign but other applications may be completely different. The permit conditions alone may also be completely different in another case.
6. Having made the finding that the proposal will still be an 'illuminated panel promotion sign', it follows that there is power to amend the Permit which is the purpose of the Amendment Application (refer below). In this case, I consider that the amendments do not seek to enlarge the accrued rights under the Permit, but rather those changes to the conditions work to constrain those rights (refer below).

Do the Permit conditions constrain the accrued right(s) under the amendment application is prohibited?

1. Council contends that condition 5 specifically would prohibit a digital or electronic sign because it will involve a change in colour, flashing or intermittent messages.
2. Condition 5 of the Permit provides:
   1. Any illuminated sign on the land the subject of this permit shall comply with clause 18 of the South Melbourne Planning Scheme and shall not be flashing, intermittent or of changing colour.
3. In this regard, the Council referred to definitions from the Macquarie Dictionary in reliance of this proposition:

1. The evaluation by the visual sense of that quality of light (reflected or transmitted by a substance) which is basically determined by its spectral composition: that quality of a visual sensation distinct from form. Any colour may be expressed in terms of three factors: hue, chroma (purity or saturation), and brightness (or value). Generally, the most obvious or striking feature of a colour is its hue, which gives it its name. The colour is qualified if necessary as pale, dark, light etc.

1. Shining briefly with the intermittent occurrence of light; a flashing light.

1. That intermits, or ceases for a time: an intermittent process.
2. Alternately ceasing, and beginning again: an intermittent fever.

1. The Council submits that the proposal will be an illuminated sign that will be 'flashing, intermittent or of changing colour'.
2. Condition 5 also requires the illuminated sign to comply with Clause 18 of the South Melbourne Planning Scheme which provides, amongst other things, at clause 18.4:

A lawfully displayed advertisement may be renewed or replaced. However, a permit is required:

• To renew or replace the advertisement of an illuminated or internally illuminated sign;
• ...
• If the renewal or replacement would result in a different type of sign.

1. The Council submits that because what is proposed here in addition to a different type of sign, replaces the advertisement of an internally illuminated sign with a new digital sign. This is contrary to Condition 5 and accordingly beyond the ambit of any accrued rights.
2. In addition, the Council submits that the endorsed plans to the Permit do not identify that the sign is digital in any way.
3. Accordingly, the Council submits what is proposed is prohibited and does not fall within the ambit of accrued rights and should be refused.

1. The applicant joins issue with the Council's submission that rights under the Permit are to be characterised by what the permit allows and the conditions which are set out in that permit. The reasons are that if that was the case, there would never be an opportunity to amend the conditions. Rather, the applicant submits that the characterisation is confined to what the Permit allows. In any event, the applicant submits that condition 5 properly understood is not a barrier in any event.
2. Having found that the proposal is an 'illuminated panel promotion sign', the applicant submits that there is now power to amend the Permit.
3. The applicant contends that an amendment process such as this can include amending any of the conditions, which is the purpose of the amendment. The fact that conditions may need to be change is not determinative of the legal question. Rather, the legal question is determinative of what the Permit allows, not the conditions about the Permit.
4. The applicant submits that it is relevant to consider the definition of the word 'sign' when the Permit was granted.
5. The Council in reply to this submission submits the power to amend conditions is sought either under section 72 or section 87A of the PE Act, the power is constrained in the context of accrued rights where something is otherwise currently prohibited. If the effect of amendments to conditions where an accrued right is relied upon has the effect of going beyond the ambit of conditions, then that cannot be be done if those amendments seek to enlarge the accrued rights. Any suggestion that condition 5 could be amended is not appropriate.
6. The term 'sign' was defined as follows under the South Melbourne Planning Scheme:

An advertisement and any structure built specifically to support it.

1. The applicant submits that the word 'sign' is an ambiguous word in ordinary parlance. A sign could be the metal plate around it or the message or words. In different contexts, the sign could be the message or the structure. In addition to the physical sign there could be physical structures to support the sign. For example, there is a message, the sign / perplex and structure built specifically to support the 4 cylinders attached to the wall. In the context of condition 5, what is intended in adopting the definition at the time, is the reference to not flashing, intermittent or changing colour is a reference to the advertisement.
2. The applicant submits that the term 'sign' is defined differently under the planning scheme today as:

Includes a structure specifically built to support or illuminate a sign.

1. So, currently the term 'sign' by using an inclusion method begs the question about what a sign is. When the Permit was granted, the applicant submits it was clearly directed at an advertisement and thus Condition 5 properly understood should be read as:

Any illuminated sign advertisement should not be be flashing, intermittent or of changing colour.

1. In relation to the words 'shall not be flashing, intermittent or of changing colour', the applicant submits that this is clearly a reference to the advertisement on the sign. It says that it is not proposed that any advertisement will be flashing, intermittent or of changing colour. Rather, for every 60 seconds there will be an advertisement that will not be flashing, intermittent or of changing colour. Then after 60 seconds, the advertisement will change and there will be another advertisement that will not be flashing, intermittent or of changing colour.
2. The applicant submits that in any event, Condition 5 only makes sense if it is a reference to each advertisement. No standard print advertising sign is ever erected with the intention that the advertisement displayed never changes. The advertisements displayed change regularly, including with regard to the products advertised, and the style and colour of the advertisements. There is no suggestion that print advertisements will offend against Condition 5 simply because the sign will change.
3. The references to 'changing colour' must be directed to the advertisement itself changing colour, not the changing of an advertisement.
4. Previous technology would have established a structure and an external light and put on the paper a message. Every month or so, a worker would physically change the message by swapping out the paper. The applicant questions whether it could really be thought that condition 5 is directed at the structure itself and the physical sign could not change colour. On any view, condition 5 has to be directed at the message, not the physical sign itself.
5. In reply to the Council's submission that the sign will flash, the applicant argues that one must look at an advertisement and every sign will be a still image and will not flash. If the flashing is a reference to the change between advertisements at best, it would be a flash of the sign as a physical structure. But in truth it could not be described as a flash. The change over of the advertisement as a flash is stretching the language in condition 5.
6. The applicant submits that the sign itself does not have moving parts. When an electron works its way, it does not 'move apart' and so none of these issues arise.
7. The Council's reply to these particular submissions is that the Permit refers to an 'illuminated sign' not a 'sign'. One cannot go to the definition of 'sign' in the planning scheme if it refers to both the structure and advertisement - it relates to the whole sign and the applicant is dealing with semantics and not what is the intention of condition 5.

1. I find that the right that has accrued under the Permit is for 'illuminated panel promotion sign'.
2. I prefer the submissions of the applicant that the restrictions in condition 5 relate to each advertisement rather than the changing of an advertisement.
3. In this regard, I accept the submissions put by the applicant that in essence the proposed conversion of the sign to LED format is to allow for easier operation. The difference between the sign on the review site and what is proposed lies in the manner of changing the sign's message. Instead of requiring a person to climb onto the roof of the review site to physically remove the old advertisement and erect a new one, the sign will be operated remotely. Accordingly, there is no change in the nature of the permission granted such that the amendment of the Permit, or the substitution of endorsed plans, will transform the permission granted into something different to what was originally granted, that is an illuminated panel promotion sign and it will still be all those things.
4. Therefore, I find that the proposed Amendment Application falls within the rights accrued under the Permit because the changes proposed to the Permit also fall within the ambit of condition 5.
5. I conclude that the proposed amendment to a digital format falls within the scope and ambit of the rights under the Permit.

DO THE ENDORSED PLANS CONTAIN ANY ADDITIONAL RELEVANT INFORMATION?

1. The dimensions of the sign itself are not proposed to change and so the sign falls within the built form 'envelope' of the accrued right pertaining to the sign. There is no indication on the Endorsed Plans as to how the permitted sign will be illuminated (i.e. there are no floodlights marked on the endorsed plans).
2. I have previously established that it is appropriate to refer to the endorsed plan in order to interpret the Permit. Is it open to conclude from the endorsed plans that illumination could occur from within rather than externally? Based on the facts before me, I consider the answer is 'Yes'.
3. The next question is too consider whether it is open to conclude that the form of illumination from within the sign would not have been thought of in 1993 when the Permit was granted? The applicant submits that the answer is also 'yes' by reference to the decision of The High Court of Australia in Council of the Shire of Lake Macquarie v Aberdare County Council[17] where His Honour Barwick CJ said:

I can see no reason why, whilst the connotation of the word "gas" will be fixed, its denotation cannot change with changing technologies.

1. The applicant says in applying the test of the scope to amend the Permit, the key word to have regard to is the word 'illuminate' in the Permit. That word 'fixes' the scope of the power in the Permit in accordance with logic in Alkero. This is because it is necessary to find that the proposed sign is an 'illuminated panel promotion sign' and the connotation of the word illumination is fixed but its denotation can change over time with changing technologies and can include illumination of light by LED.
2. The Council contests reliance on the authority in Aberdare because whilst we are discussing technology that may not have existed at the time the permit was granted, it supports Council's position that the Permit does not authorise or give rights to the type of sign proposed.

1. I find that there is no restriction within the Endorsed Plans to indicate the sign must be illuminated externally and/or by way of floodlights and it is also open to conclude the form of illumination despite the fact the technology would not have existing at the time the Permit was granted.

VISUAL AMENITY AND TRAFFIC SAFETY ISSUES RAISED THE CONVERSION OF THE SIGN FROM A STATIC TO LED FORMAT

1. It is common ground between the parties that the conversion of the sign to digital sign will not detrimentally impact upon the amenity of character or amenity of the area.
2. I was referred to the Planning Officer's report who concluded with reference to clause 22.08 and clause 52.05, the sign in electronic format would unlikely have any detrimental impact on the character or amenity of the area over and above existing conditions. I have also formed the same view following my site inspection.
3. I accept the written evidence from Ms Dunstan filed by the applicant that research indicates that no significant driver distraction or crashes can be ascertained for electronic billboards and there are no traffic engineering reasons why the proposed amendment to the sign on the review site to a LED sign should not occur because the LED sign:

1. Will not present a road safety hazard; 2. Will not obstruct a driver's line of sight to any traffic control device or traffic sign; and

1. Satisfies the decision guidelines set out in clause 52.05-8 of the planning scheme and VicRoads Ten Point Safety Checklist, provided the sign is not reflective, animated or flashing or provide an instruction that could dazzle, distract or confuse.
2. VicRoads does not object to the conversion of the sign to LED format provide its conditions are included on any amended permit which are accepted by the applicant.

1. I find that the proposal is acceptable from a visual amenity and traffic safety perspective in reliance on Ms Dunstan's written evidence and Council's concession that it has no material concerns on the merits.

1. I consider that it is appropriate to provide for the following amendments to the Permit which the applicant submits are not contested:

1. Reference to the amended application plans which have been substituted for the application plans; 2. The permit conditions proposed by VicRoads; and

1. A condition be placed on the Permit that the Permit will expire on the expiration of 15 years from the date of issue of the amended permit.

1. I find that the proposal under the Amendment Application falls within the ambit of rights accrued under the Permit.
2. I find that the proposed sign will represent an acceptable outcome because it will have the same built form footprint of the existing sign and its effect, on visual amenity will be essentially the same. It will not have any increased effect on vehicular safety, provided VicRoads conditions are satisfied and these are all acceptable to the applicant.
3. For the reasons given above, the decision of the responsible authority in VCAT Proceeding P83/2018 is set aside. A permit is granted subject to conditions.

1. In light of my findings in Proceeding P83/2019 and orders directing the grant of an amended permit, I consider that it is appropriate to set aside the determination of the Council in the Secondary Consent Application and to remit that matter back to Council for reconsideration.

1. The decision of the responsible authority in VCAT Proceeding P882/2019 is set aside and pursuant to section 51(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998, the matter is remitted back to the responsible authority for re-consideration.

• Erection of an illuminated panel promotion sign on the roof of the existing building

1. No buildings and works shall commence until amending plans are submitted to and approved by the Responsible Authority generally in accordance with drawings TP100 & TP200 (Job No: 17262) prepared by WMK Architecture dated May 2019:
   • (a) The existing "Chapman Motors" sign facing Kings Way is to be removed prior to the erection of the illuminated promotion sign on the roof of the building
   • (b) The overall height of the sign shall not exceed 10 metres above natural ground level.

When approved, the plans shall become the plans endorsed within this permit and shall form part of this permit.

1. The use and layout of the sit and the size of the proposed buildings and works, including the materials of construction, as shown on the endorsed plan shall not be altered or modified without the formal written consent of the Responsible Authority (or its Delegate). This requirement applies to all alterations and modification or other changes including those to achieve compliance with any statute, statutory rule, regulation or Local Laws.
2. The permit shall expire:
   • (a) If the development does not start within two years of the date of issue of this permit.
   • (b) If it is not completed within 1 year of the date this development was started.
   • (c) On the expiration of 15 years from the date of issue of this amended permit.

The time within which the development is to be commenced or completed may, on application made before or within three months after the expiry of the time specified, be extended by the Responsible Authority and where the time is extended after the permit has lapsed the extension shall operate to revive the permit as from the date it expired.

1. No advertising sign, notice, advertisement or the like except a sign:
   • (a) Which complies with the City of South Melbourne Outdoor Advertising Policy; and
   • (b) Which complies with Clause 18 of the South Melbourne Planning Scheme

shall be displayed on the site or attached to the building except with the prior written consent of the Responsible Authority or its Delegate.

1. Any illuminated sign on the land subject of this permit shall comply with Clause 18 of the South Melbourne Planning Scheme and shall not be flashing, intermittent or of changing colour.
2. The sign permitted by this permit shall be maintained to the satisfaction of the Responsible Authority or its Delegate.

1. No image may be displayed on the electronic sign for less than 60 continuous seconds.
2. The luminance of the advertising sign must be such that it does not give a veiling luminance to the driver, of greater than 0.25 cd/m2, throughout the driver's approach to the advertising sign.
3. The control of the electronic sign must be in accordance with the submitted lighting report, which must form part of any issued Planning Permit:
   • (a) Report of Lighting Impact Assessment of ILEX Holdings Pty Ltd by Electro Light, dated 3 April 2018
4. The transition between images must be instantaneous.
5. The content of the sign must not:
   • (a) Consist of more than one static image at a time.
   • (b) Consist of a sequence of images giving the illusion of movement from one image to the next.
   • (c) Contain or consist of images which are capable of being interpreted as projections beyond the face of the advertising screen, such as through the use of 3D technology.
   • (d) Contain or consist of video, movie or television broadcasts.
   • (e) Contain or consist of present-time or other contemporary update information such as relating to news, weather or time.
   • (f) Contain any flashing, blinking, brightening or fading elements that create the illusion of movement or change.
   • (g) Be capable of being mistaken for a traffic signal or a traffic control device. This includes the use of red, amber or green circles, octagons, crosses or triangles.
   • (h) Be a traffic instruction, or be capable of being mistaken as, an instruction to a road user. This includes the use of the wording stop, give way, slow, turn left or turn right.
   • (i) Be predominantly green, amber or red in colour.
6. The sign and advertising content must not dazzle or distract road users due to is colouring or content.
7. The sign and any displayed advertisement must not include ancillary extension, embellishment or accessorisation within or outside the permitted advertising area, unless VicRoads has agreed in writing, prior to installation.
8. The use of sound or motion to activate the sign is not permitted.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

1. [2] [The South Melbourne Planning Scheme was translated into the Port Phillip Planning Scheme in 1999 with the inception of the Victorian Planning Provisions.

[3] Refer to Jezmac Pty Ltd v Glen Eira CC [2018] VCAT 2053

[5] Jezmac Pty Ltd v Glen Eira CC [2018] VCAT 2053 [17] referring to Alkera Development Pty Ltd v Stonnington CC [2018] VCAT 1120 [44]

[6] [2018] VCAT 1120

[8] Gant v Greater Geelong City Council (2003)15 VPR 230, 233 per Morris J.

[10] Vestey and Ors v Warranmbool CC (red Dot0 [2008] VCAT 963 at 32.

[12] Per Spigelman CV in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 171 ALR 523, 550, referred to in Vestey and Ors v Warranmbool CC (red Dot0 [2008] VCAT 963 at 42.

[13] Asble Pty Ltd v Stonnington CC [2010] VCAT 1780; Octopus Media Pty Ltd v Yarra CC [2011] VCAT 298; Drive by Developments v Stonnington CC [2017] VCAT 2050; 498 Bridge Road v Yarra City Council [2018] VCAT 2078

[14] 498 Bridge Road Pty Ltd v Yarra CC [2018] VCAT 2078 at [67]

1. [16] In Treadmaster v Port Phillip CC [11 May 2005] the proposal in that case is described as the 'erection of an illuminated LED sign on the exterior of the building at the corner of Ingles Street and Normanby Road.."

[17] (1970) 123 CLR 327 at page 331.