In permit application no. TP04/551, the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to issue.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Jewell Partnership seeking review of a decision made by the Melbourne City Council ("the Council") to refuse to grant a permit in permit application no. TP04/551. A Notice of Refusal was issued on 27 July 2004. The Application for Review was lodged on 11 August 2004.

2 The subject site is located on the north-west side of Flinders Street, west of Exhibition Street. It is occupied by a three level building - the Phoenix Hotel - that has a plain façade and is lower than the buildings to its east and west. To the east, is a multi-level building on the corner of Flinders Street and Exhibition Street (No. 1 Exhibition Street) that has a solid parapet and period detailing. To the west is the modern form of the Medina serviced apartments with a metal façade and rear higher rise element. Opposite are the railway yards and to the south-east is the Batman Avenue/Exhibition Street extension that links (inter alia) the City with City Link.

3 It is proposed to erect and display a major promotional sky sign. The sign would be 6 metres wide by 9 metres high and internally illuminated. The display area would be 54 square metres. The sign would be 13 metres above the ground at its base, being the height of the roof of the existing building above footpath level. No external lighting is proposed and the display is to be for commercial promotions.

4 Relevant provisions of the Melbourne Planning Scheme ("the Scheme") are:

* The land is located within the Capital City Zone 1 where a permit is required to erect and display a sign pursuant to Clause 37.04-5.

* Two Design and Development Overlays apply to the land - Schedule 1 Area 3 and Schedule 4. These schedules direct that advertising controls are at Clause 52.05, unless specified in the Overlay, which is not the case here.

* Clause 52.05 sets out advertising provisions. The objectives at Clause 52.05 have been considered by the Tribunal, together with the specific provisions at Clause 52.05-5 relating to major promotional signs.

* A number of other Clauses are relevant to this Application, particularly Clauses 11, 14, 17.01, 17.02, 19.03, 21, 22.01 (Urban Design within the Capital City Zone), 22.07 (Advertising Signs policy) and 65 (general decision guidelines).

5 I have considered the submissions presented assisted by my inspection of the subject site and locality subsequent to the Hearing. Below I set out my findings in relation to the key issues raised by the parties in this Application having regard to the provisions of the Scheme. The key matters for determination are:

* whether the proposed sign represents an acceptable outcome in terms of the policies of the Scheme;

* whether the proposed sign represents an acceptable outcome in terms of the streetscape, gateway to the City and the Yarra River environs;

* whether the proposal would unreasonably impact on residential amenity.

6 In considering first of these matters, it is useful to refer to some of the most relevant policies to this Application as a basis to understand the policy outcomes sought by the Scheme:

* The capital city is the pre-eminent activity centre in Victoria that is seen as a prosperous and vibrant place. The policies at Clause 21 place a strong emphasis on urban design and the elements that are considered to give Melbourne its unique appearance and feeling[1]. Some of those elements include:

o creating streetscapes composed of façades with a high quality of architectural design[2] and detail;

o requiring advertising signs to respect the architecture of the building they are on and the character of the surrounding streetscape and ensuring that they do not dominate a streetscape or building or interrupt the skyline[3].

* The Yarra River is encouraged as a cultural asset and a focus of activity with high quality spaces and development. The policies seek to integrate its environs with adjacent areas of the City.

* Clause 22.07 sets out objectives and policies relating to advertising signs in terms of general policies, area specific requirements and areas of special character within the Capital City Zone. Flinders Street is identified as a "principal boulevard"[4] and that is relevant to the provisions of Clause 22.07 "Area Specific Requirements".

* The policies at Clause 22.07 allow for the identification and promotion of institutions, businesses and buildings and communication of messages while protecting the characteristics of significant buildings and streetscapes and protecting important vistas from obtrusive and insensitive advertising. A number of the general design policies are:

* Signs should be sensitive to the building style and scale and the character of the street.

* Signs should fit within architectural forms and be integrated with the architecture.

* Pole signs and sky signs shall not generally be supported.

* For "Major Roads, Boulevards and Gateways", it is policy that:

* Signs should not be freestanding or erected on the roof of a building.

* Signs should not be located in a landscape area or buffer zone of a freeway.

* Important views and vistas should not be interrupted by signs (e.g. views to the city, along St Kilda Road)

* Signs should be limited in number and their size and height should complement the dominant built form and/or quality of landscape.

* Promotion and pole signs are generally not appropriate.

* The Yarra Environs is identified as having a specific policy direction at Clause 22.07, which I return to later.

* Table 1 to Clause 22.07 is "Guidelines for Signs within the Capital City Zone". For first floor level to 40 metres, in relation to a sky sign, the table states:

In exceptional cases where such a sign is suitable, the following applies:

* Should not be detrimental to the city skyline, street parapet line or architecture of the supporting building.

* Rear of structure not to detract from views and skylines.

* To be compatible with scale of building and streetscape.

* Signs should cover a minor proportion of the building facade.

* Signs should not project above scheme height controls.

7 The readily identifiable themes lead to a conclusion that a sky sign, atop the roof of an existing building, adjacent to a gateway to the City (ie. Batman Avenue extension leading into Exhibition Street) should not be supported.

8 However, as fairly argued by Mr Jewell, although policy discourages the type of sign proposed here that is not the end of the matter. There is a discretion that can be exercised to direct the grant of a permit and an assessment of the merits of a proposal must be undertaken to ascertain whether there are "exceptional circumstances" or other considerations relating to the subject site, its context or the proposal itself that warrant a departure from the direction sought by the policy. Put another way, policy can not be applied blindly without proper consideration of the relevant circumstances. That recognises the fact that policy is not mandatory and cannot fetter the discretion available under the Scheme. It has been recognised in Tribunal decisions that policy must not dictate the outcome of any planning application in the same manner as a "control" in the Scheme. A balance needs to be struck and one way to achieve "a balance" is to consider whether there is good reason to depart from the policy direction. Indeed, in this case, the provisions of Clause 22.07 recognise that such circumstances might apply.

9 In the current case, Mr Jewell contended that exceptional and unique circumstances do apply that should give rise to approval of the proposal. The circumstances relied upon focus on the modest scale of the proposed major promotional sign together with the physical circumstances of the host building, the setting and position of the land relative to the Batman Avenue (Exhibition Street) link. Mr Jewell submitted that the proposed sign is modest in size for its type and has a symmetry in terms of its proportions with the host building. He submitted that the proposed sign has been sensitively positioned in a gap between the prevailing parapet level and would act as a transition between larger building forms to each side of the review site and to the rear. He submitted that the setting of the subject land can readily absorb the impact of the proposal, that the site is remote from a direct association with the Yarra River and that the proposed sign is positioned so that it would not have an adverse impact on the gateway to the City. He referred to other gateways, such as at Spencer Street, with much more and prominent signage.

10 The contrary position put by Mr Dietrich was that the proposed sign would be a dominant element to the host building and streetscape and would be located in a prominent area where there is no other major promotional signage. He submitted that the proposed sign would not make a positive contribution to the visual amenity of this important gateway and would be clearly visible from the Yarra River environs and Birrarung Marr precinct.

11 In considering these submissions, I must consider the relationship of the proposed sign to the host building, its setting and whether it would have an acceptable impact in these terms and in relation to the site's gateway location and relationship to the Yarra River. In so doing, is important to acknowledge a number of valid points made by Mr Jewell:

* The sign is modest in terms of the size of major promotional signs that are often contemplated.

* The design and size has sought to respond to the site's context, that is, it is not of standard dimensions but fits the width of the review site and is a height that is between the higher and lower parapet heights of the adjacent buildings. It would not break the skyline in most views.

* The location of the subject site is one where there is no promotional signage in contrast to many of the other major gateways to the City. [It is common ground between the parties that the review site is at a major gateway to the City].

12 The host building on the review site is a small three level structure. It is a diminutive element when contrasted with many of the buildings around it. The proposed sign would not mask the façade as it would sit on the roof of the building and there would be few opportunities to appreciate the rear of the structure from the public realm. My main concern in terms of the relationship to the host building is that the sign would overwhelm the structure being 9 metres in height compared with the 13 metre height of the building. I am not persuaded that there is a "symmetry" rather I find the sign would be over-bearing albeit that the building has no apparent architectural or heritage significance.

13 In terms of the relationship between the proposed sign to the streetscape and gateway, it is noted that the proposed sign would be most visible from the Batman Avenue road link and in views from the south-west and south side of Flinders Street (both within the street network and from parkland).

14 I appreciate that the design has sought to fit the sign between two structures and has a backdrop of large buildings. However, I find that it would be a jarring element sitting above the forward parapet of the metal face to the Medina apartments and abutting solid form of No. 1 Exhibition Street. While it would not break the parapet line that is evident in the wider streetscape, and would have buildings behind, it would be an unsympathetic intrusion into a simple and uncluttered visual setting that is a very important entry to the City. There is an existing built presence, character and style that would be diminished; I do not agree that presence is "drab" or "blanket-like" as described by Mr Jewell and I do not accept the submission that the proposed sign would be absorbed into the setting to render it a minor or neutral element. That might be so at a very long distance when much more of the City is also seen but not in closer view. In this respect, I am persuaded by the Council's submission that the proposed sign would be a dominant and inappropriate element in the streetscape and at this gateway. That other gateways to the City have more dominant signage is not a factor that I find lends any influential weight in favour of the Application.

15 I find the Council's arguments in relation to the potential impact of the sign on the Yarra River environs less persuasive.

16 Mr Dietrich relied on the provisions of Clause 22.07 that refer to the "Yarra River Environs" as one of the bases for his submission that the proposal would be an inappropriate visual intrusion. His submission, in my view, has several problems. The first is that there is nothing in the Clause, or that the parties could identify in Clause 21, that defines the "Yarra River Environs". A potentially relevant indicator is Map 12 "Urban Design Structure" at Clause 21[5] that shows the "Yarra River Axis" and I note that it excludes Flinders Street from that area. The same map shows Flinders Street as a "principal boulevard" and that is relevant to the provisions of Clause 22.07 "Area Specific Requirements" as already noted. The second problem is that the provisions of the policy focus on the protection of the Yarra vista and its environs from obtrusive advertising. Given that the review site is within the CBD, on the north side of Flinders Street, I find it difficult to reach the view that the proposed sign could impact on the corridor itself or one's experience of Birrarung Marr and the parkland network. Rather, the Yarra corridor is more relevant as one of the viewing areas from where the proposed sign would be seen as a discordant element in the streetscape and built form setting as discussed above.

17 The final matter for consideration is the potential for the proposed sign to impact upon the amenity of residents in adjacent buildings. This was an issue raised by Mr Dietrich but not included in the grounds of refusal. It was argued on the basis of a loss of views and impact from illumination, matters Mr Jewell challenged. Given my findings above, I only briefly remark that loss of views is a matter that I give no weight, noting that the Medina serviced apartments provide short term accommodation and would generally retain an outlook in any event. Moreover, an addition to the existing building or redevelopment of the subject site, may have a much greater impact in terms of building mass and intrusion for adjacent properties than the proposed sign. Light intrusion may be an issue, but it is not a matter I have found necessary to determine.

18 For the above reasons, I conclude that the decision made by the Responsible Authority should be affirmed.

[1] Part 5 Attractive City Clause 21 at page 61 of 120.

[4] Map 12 Urban Design Structure at page 111 of 120.

[5] Map 12 Urban Design Structure at page 111 of 120.