1. In proceeding P1272/2022, the decision of the Responsible Authority is varied.
2. In planning permit application No. TP-2021-687, a permit is granted and directed to be issued for the land at 26 Cook Street, Port Melbourne, in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix to this decision. The permit shall allow:
   • The construction and display of an internally-illuminated high-wall business identification panel sign.

Mr Matthew Townsend of Counsel, instructed by S & K Planning Lawyers. Mr Townsend called the following witnesses:

• Expert urban design evidence from Mr Alister Campbell
• Sworn lay evidence from Mr Mustafa Yurenc

Ms Alexandra Guild of Counsel, instructed by Planning and Property Partners

[SUMMARY OF PART-ORAL DECISION AND FINAL FINDINGS]**

1. The site at 26 Cook St Port Melbourne has an area of about 1030 sqm and features a four storey commercial/office building which (unusually) directly backs onto the Westgate Freeway. The title to the subject land shows that since 2018 the site has been owned as tenants-in-common by the following companies:
   • ROJ Property Group Pty Ltd
   • K & M Property Investments Group Pty Ltd.
2. As this was the term commonly used during the hearing before me, I shall refer to these two companies jointly as the 'transferees'.
3. The subject land is one of a row of such buildings/vacant lots, forming part of the broader commercial/industrial Fishermans Bend area. The company Eventpower Property Pty Ltd (Eventpower) owns/occupies the abutting site to the east of the subject land.
4. In terms of how the four level building on the subject land is used, the indications are that the ground floor of the building is used for warehouse/building development type purposes, the middle two levels are occupied not by companies excluding the transferees, and it was hotly disputed in the proceeding before me who occupies the two offices in the top level of the building. That is to say, the applicant relies on the Affidavit of Mr Yorenc in contending that each top level office is occupied by one of the two companies which make up the transferees, whereas Eventpower strongly contests this and argues that the transferees have no day-to-day physical presence in the building in the subject land.
5. From a leasing point of view, it is common ground that there is the current strange situation where several leases currently concurrently exist for the lease of the whole of the building to different companies.
6. The subject land is affected by a restrictive covenant Instrument AK036535Y (Covenant) which is spelt out in full at [23] of the Council written submission. The essence of this restriction is that the transferees cannot allow "...any signage to be erected or displayed on the Land which does not directly relate to the business activities being carried out by the transferee on the Land or allow any third party signage (such as commercial advertising signage) to be erected or displayed on the Land".
7. It is common ground that pursuant to Section 61(4) of the Planning and Environment Act 1987, no permit can be granted if in theory that permit would breach the terms of a relevant restrictive covenant.
8. At an earlier stage, there was a planning permit application for a form of business identification sign on the top corner of the rear of the eastern wall of the subject building, which I will for convenience call the 'proposed sign location'. Being located on the east-facing side wall, it is common ground that the proposed sign would in practice only be visible to west-bound drivers on the Westgate Freeway[2].
9. The sign was proposed at that point to promote the company Symmetric Homes Pty Ltd, that I understand at least at that time was a tenant of the building. This proposal was supported by Council but objected to by Eventpower. This dispute ended up before Member Whitney in the proceeding Eventpower Property Pty Ltd v Melbourne CC [2021] VCAT 1002. In the final result, Member Whitney did not need to make any planning merits finding on the proposed sign, as she found that a sign which promotes a tenant would be prohibited by the Covenant.
10. A revised planning permit application has been lodged with Council, as follows. A intended new sign would still be in the same proposed sign location, but which would be advertising the names of the transferees as I have set out at my paragraph 1 above. That is, the sign would be use the colour red, with the names of the two transferee companies set out in white print, with a mixture of capital and lower case letters. The size of the sign would be:
    • A height of 4.5 metres.
    • A length of 8.5 metres.
    • A total area of 38.25 sqm.
11. Council again supports the proposal, but Eventpower again opposes it, leading to this VCAT review proceeding, where I was the presiding member at the hearing on 23 March 2023. During the one day hearing I heard submissions from the three advocates listed above, plus Mr Townsend called evidence from the two witnesses listed further above.
12. During the hearing I was shown an excellent range of photos of the site and locality, plus I indicated to the parties that I was already somewhat familiar with this location.
13. At the end of the ordinary hearing process, I provided the parties with an update of my thinking on the proceeding, as follows.
14. First I summarised the site and location, the proposal, the permit application process, the application to VCAT by Eventpower to review Council's support for the proposal and how the hearing before me had unfolded.
15. I then dealt with several more straightforward preliminary matters, which can be summarised as follows:
    • The appropriate way for the Tribunal to consider the planning merits of the proposal is not a micro-analysis of how the proposed sign would sit on the subject land vis-à-vis its immediate neighbours. Rather, the proposal needs to be assessed with a broader reference to the Westgate Freeway which the sign would be oriented to.
    • It needs to be acknowledged that this row of existing commercial buildings already includes at least four comparable business identification signs on the rear upper corner of the relevant side wall of other nearby buildings, plus other like signage facing directly towards the freeway (including the business identification signage on the rear of the Eventpower building). Hence this location already has a strong signage presence.
    • This section of the Westgate Freeway area is probably the most incredibly robust road location in metropolitan Melbourne, featuring an exceptionally high volume of passing cars and associated noise, various existing conventional signage, the service station and its signage on each side of this section of the freeway, numerous freeway gantries and directional signage, a relatively new very visually prominent electronic major promotional pylon sign roughly on the opposite side of the freeway from the subject land, the visual backdrop to the west of the Westgate Bridge and Newport Power Station etc.
16. Relying on the above points but putting to one side for the moment the question of the role of the Covenant and the size of the proposed sign, I confirmed that I was satisfied that some form of signage should be approved on the proposed sign location. Some other factors I relied upon in making that finding were that:
    • I could give some weight to the Council support for the proposal.
    • Only west-bound freeway drivers would have a view of the proposed signage and that would be from the other side of the freeway, typically driving at 80 kph.
    • I considered Mr Campbell's expert urban design evidence to be thoughtful, helpful and credible.
    • The sign (if approved and built) would add some colour/visual interest to what currently is a very bland grey-coloured presentation of the rear of the buildings on the subject land/Eventpower land towards the freeway.
    • That I consider the proposed sign to be well laid and and quite smart, from a 'graphic design' point of view.
17. In closing I indicated that I would be reserving my decision on the final 'yes or no' questions of whether:
    • The sheer size of the proposed sign at 38.38.25 metres was excessive.
    • Whether or not I was satisfied on the evidence presented to me that the proposal would comply with the Covenant.

1. The first final finding I need to make is whether the proposed sign would be (in its proposed location) excessively large at 38.25 sqm, with the length and width already described further above.
2. For the following reasons, I am satisfied that this would be an acceptable width/length/overall size sign in its proposed location at the top rear of the eastern side wall of the subject commercial building:
   • The host building is itself a very substantial building for this location outside of the CBD and away from any activity centre i.e. four storeys and with a relatively long side wall.
   • The extremely robust Westgate Freeway location and the fact that only west-bound drivers on the opposite side of the freeway will be able to see the sign, typically travelling at 80 kph.
   • The graphic design of the sign is in my view attractive. Also as explained above, adding a good dab of the colour red in my view will give the west-bound freeway view of the otherwise very drab rear of the subject building/Eventpower building a visual lift.
   • I accept the expert evidence of Mr Campbell that the size of the proposed sign is well matched to the extent of the top-rear side wall corner area available here with the building, with the side and top edges of the proposed sign appropriately inset from the closest edges of this section of the host building. I agree that a smaller sign would create the risk of appearing inappropriately 'under-cooked'.
   • The extremely visually prominent electronic major promotional pylon sign recently mounted on roughly the opposite side of the freeway from the subject land will I expect either distract some west-bound drivers' attention away from the proposed sign here or by comparison make the proposed sign here look more constrained in size or a combination of both.
   • As a west-bound freeway driver gets closer to the subject land, their views of where the new sign would be would be partially blocked by the relevant freeway gantry and the rear of the signs on that gantry, which is utilised by east-bound freeway drivers.
   • The only party who has called expert urban design evidence is the transferees.
   • I consider a proposed sign as large as 38.25 sqm in the location proposed to still be consistent with the relevant zoning and planning policy setting.
3. The other final finding I need to make is in relation to the Covenant applying to the subject land, the terms of which I have already explained in my paragraph 6 above. In this regard, Mr Townsend urged me to find that the sworn evidence of Mr Yorenc (who spoke to his Affidavit of 16 March 2023) was sufficient reliable evidence for the Tribunal to be satisfied that the proposed sign would be comply with the Covenant (and this was supported by Council). By contrast Ms Guild urged me to find that the sworn evidence of Mr Yorenc involved major inconsistencies/complications/doubts, such that the Tribunal could not be satisfied the sign would comply with the Covenant.
4. At a more detailed level, the debate really came down to whether there is enough reliable evidence for me to be satisfied that a representative of the two transferee companies day-to-day use each of the two offices in the top level of the subject building, or alternatively whether the evidence about same is too speculative/unreliable. In other words, is there enough reliable evidence that:
   • Mr Yorenc day-to-day uses one of the top level offices for K & M Property Investments Group Pty Ltd business activities.
   • He has an associate Mr Ali Gunes that day-to-day uses the other top level office for ROJ Property Group Pty Ltd (ROJ) business activities, where Mr Gunes is the sole director of ROJ.
5. I now turn to my findings on same.
6. On the one hand, I acknowledge Ms Guild's point that there are some unusual aspects to the 'picture being painted' by Mr Yorenc's sworn evidence and the associated documentation. It is self-evident that it is a strange situation if there are two or three leases granted by the transferees to lease the whole of the building, which are currently running alongside each other. Ms Guild highlighted this in arguing that 'something is going on' with how the subject building is being used.
7. I also acknowledge that from what I have been told and the relevant photos I was shown at the hearing, there is no 'branding' of either of the transferee companies having a presence in the building, either in the ground level foyer area or in the top level where the two offices are. When asked about this during the giving of his sworn evidence, Mr Yorenc advised that when he or Mr Gunes has a meeting with someone in the building, there is always a receptionist in the ground level foyer to greet the person and the person is then allowed to take the lift up to the top level, where Mr Yorenc/Mr Gunes will go the lift entrance and greet that person etc.
8. However with this being a form of administrative review hearing rather than being a criminal hearing, I find that the 'persuasive burden' on the transferees to show that the Covenant will be complied with is more in the nature of 'the balance of probabilities', rather than the strict criminal test of 'beyond reasonable doubt'.
9. In this context, for the following reasons, I am satisfied that the proposed sign will comply with the Covenant. First and foremost, I see real merit in the comment by Mr Townsend at the end of the hearing that it is appropriate for the Tribunal to give major weight simply to the fact that:
   • Mr Yorenc provided a signed Affidavit in the lead up to the hearing.
   • Mr Yorenc was sworn in as a witness during the hearing before me.
   • He is presumably aware of the serious legal consequences of giving false evidence under oath at a Tribunal hearing.
   • His sworn evidence was that day-to-day the two top level offices in the subject building are used by himself and Mr Gunes to carry out business activities for the two transferee companies. In other words, his sworn evidence was that day-to-day the two top level offices are used by Mr Yorenc/Mr Gunes as representatives of the two transferee companies to meet with clients, do clerical work, other administration and to take phone calls.
   • In my view Mr Yorenc answered the questions put to him by Ms Guild and then myself in a manner that did not materially detract from his evidence in chief.
10. Second, as I discussed at the hearing, there is a degree of logic to the ground level foyer and the top level offices not being expressly branded with the names of the two transferee companies, if some of the meetings being conducted by Mr Yorenc/Mr Gunes in the two top level offices relate to other companies in which they have an interest in, as well as the two transferee companies. To be clear, I do not see anything sinister for the purposes of the Covenant in the fact that the two top level offices may occasionally be used by Mr Yorenc/Mr Gunes for business activities relating to other companies they have an interest in, provided that it remains the cases that the two offices are substantially used for business activities for the two transferee companies.
11. Third, Mr Yorenc has provided an ASIC company extract for the two transferee companies, showing that for each one, the subject land is that company's 'principal place of business'.
12. Fourth, Mr Yorenc has provided numerous VicRoads registration documents showing the subject land as the 'garage address' for these commercial vehicles, where [9] of his Affidavit indicates that these are "K & M business vehicles".
13. In summary, for these reasons, I am satisfied that in this repeat appeal the applicant has shown that the test in the Covenant will be satisfied by the proposed sign i.e. that the transferees cannot allow "...any signage to be erected or displayed on the Land which does not directly relate to the business activities being carried out by the transferee on the Land or allow any third party signage (such as commercial advertising signage) to be erected or displayed on the Land". Or in plainer English, I am satisfied from the sworn evidence put to me that the proposed sign directly relates to the business activities being carried out by the transferees on the site.

1. I have already set out above the main points and conclusions I rely upon, in finding that the Covenant has been satisfied and directing that a permit issue. The final version of the permit conditions set out in the Appendix attached to this decision represents my judgement on the handful of conditions discussed at the end of the hearing. Notably, I regard as excessive and unconvincing having any condition which 'locks in' the wording of the sign, which stops Council approving any variation to the sign or which stops the sign being illuminated overnight.
2. In closing, I make the following comments simply in passing. On the one hand, where Ms Guild argued that 'something is going on' with how the subject building is being used, it is possible that (beyond the role of the Covenant) there may be some truth to that. However as the Tribunal is not here as the Ombudsman or conducting a Board of Enquiry, any quirky aspects of Mr Yorenc's evidence provided to the Tribunal in this proceeding are an issue for another place and another day.
3. On the other, I am also conscious that it is hard to see how Eventpower's day-to-day amenity will be affected by the proposed sign, given that Eventpower's own building essentially is oriented to the front/north, whereas the proposed sign would be on the top rear of the east-facing wall of the subject building. I acknowledge that the Eventpower building includes a rear upper level open courtyard area, but surely the main views/outlook from that area would be looking over the freeway to the south or looking east towards the CBD (not looking west).
4. It also needs to be said that Eventpower has its own business identification sign on its rear wall facing towards the freeway. That sign is considerably smaller than the proposed sign, but is visible to traffic moving both ways along the freeway, including east-bound traffic which passes relatively close to the sign. This does in my view create a 'pot calling the kettle black' type of tension.

• Construction and display of an internally-illuminated high-wall business identification panel sign.

1. The location, size, material of construction, colours and degree of illumination of the sign shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
2. The sign, including the structure and advertising material as shown on the endorsed plan, must at all times be maintained in good order and condition, to the satisfaction of the Responsible Authority.
3. All outdoor lighting associated with the signs must be located, designed, directed and baffled to comply with Australian Standard AS/NZS 4282:2019 (Control of the Obtrusive Effects of Outdoor Lighting) to the satisfaction of the Responsible Authority so that:

(a) The lighting is installed and maintained to ensure there is no disability glare towards motorists; > > (b) The lighting does not dazzle, distract or obstruct the view of motorists or pedestrians, obscure traffic signals or constitute a road safety hazard in any way; and > > (c) The lighting does not cause any adverse effects on adjoining land (including the roadway).

4. All signs approved as illuminated must be controllable and dimmable to the satisfaction of the Responsible Authority.
5. The lighting of the signs must be so positioned that no direct light or glare shall be visible from any roadway or from any adjoining property, to the satisfaction of the Responsible Authority.
6. The luminance of the signs must be such that it does not give a veiling luminance to the driver, of greater than 0.25cd/m2, throughout the driver's approach to the advertising sign.
7. The signs must not be animated or contain any flashing light.
8. No bunting, streamers, wind vanes or the like shall be displayed unless with the prior written consent of the Responsible Authority.
9. The Responsible Authority, with just cause, may at any time request the lodgement of a Lighting Impact Assessment (LIA) report by a suitably qualified professional. The LIA must provide an assessment of the approved sign against the conditions of this permit and (if applicable) any potential attenuation work require to achieve compliance with this permit. Any recommendations of the LIA must be implemented by the permit holder / owner to the satisfaction of the Responsible Authority.
10. The time for commencement of the erection or display of the advertising signs hereby approved is two years from the date of issue and the time for completion is specified as two years from the date of such commencement.
11. This permit will expire 15 years from the date of its issue, at which time the sign and all supporting structures must be removed, and the site made good to the satisfaction of the Responsible Authority.

[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.

[2] Noting that there is no pedestrian movement allowed along the southern edge of the freeway and that the proposed sign location would be barely visible from Cook St (albeit the Eventpower building does have a rear roof-top garden area).