Look Outdoor Advertising Pty Ltd v Port Phillip CC & Ors [2013] VCAT 930

1. The decision of the Responsible Authority is affirmed.
2. In permit application no. 594/2012, no permit is granted.

Ms N Collingwood of counsel. Expert evidence was called from Mr A Vandergriff, lighting consultant, and Mr T McBride-Burgess, town planner.

Section 77 of the Planning and Environment Act 1987.

The review site is on the north side of Wellington Street and extends through to the south side of Nelson Street. The site is 990 square metres in area and located around 130 - 140 metres from the St Kilda Junction. It is occupied by a two storey commercial building.

There are residences on the south side of Wellington Street and a mix of dwellings and offices on the north side of the same street. The site abuts commercial premises to the east and some dwellings to its west.

Two internally-illuminated major promotion signs in a V-shape mounted on top of the existing building. They would be oriented to face traffic in the inbound and outbound lanes along Queens Way/Queens Road. Each sign would be 12.66 metres wide and 4.35 metres tall including a colourbond skirt around the base. The rear would also be clad in colourbond. Each sign would have an advertising area of 42.4 square metres. The signs would be 13.35 metres above Nelson Street and 32 metres from Wellington Street.

Business 2 Zone. Design and Development Overlay Schedule 13.

Clause 34.02 with sign requirements at Clause 52.05 (Category 2) and Clause 52.02-6 (major promotion sign).

Clauses 10, 11, 15, 17, 18, 21, 34.02, 22.08 and 65.

Prior to the Hearing, as parties were advised at the start of the Hearing, and on 6 June 2013 in the evening.

Sarino Park Pty Ltd v Port Phillip CC & Ors [2012] VCAT 290.

1. This proceeding addresses a proposal for two major promotion sky signs, in a V-shape, atop of an existing commercial building in St Kilda. The permit application was refused by the Port Phillip City Council, leading to this proceeding being lodged with the Tribunal by the permit applicant.
2. I must decide whether to a grant a permit and, if so, what conditions should be applied. In setting out the reasons for my decision, I do not recite all of the statements of grounds, submissions and expert evidence presented by the parties. I have considered all of the material presented to me.
3. The key matters for determination are whether the proposed signs:
   • Are an acceptable outcome in terms of the decision guidelines and policies of the Scheme relating to signage and this locality;
   • Are acceptable in terms of the Wellington Street, Nelson Street and Queens Way streetscapes and other viewing points and locations within the environs;
   • Would unreasonably impact on residential amenity;
   • Would result in a road hazard.

What planning context applies to the site and area?

1. The review site contains a two storey commercial building. It is one of the older, lower forms in the changing streetscapes of Nelson Street and the north side of Wellington Street. These roads lead into the St Kilda Junction where higher forms are approved and constructed. Notable among them are Nos. 11-15 Wellington Street that is in construction at 10 storeys with over 80 dwellings. Buildings immediately around the site are of one to five storeys. Nelson Street is one-way abutting Queens Way. Queens Way extends beneath St Kilda Road and leads into Dandenong Road. The north side of this same underpass and lowered road and tram corridor abuts Albert Street. The south side of Albert Street has an acoustic wall for part of its length, some roadside planting and multiple residential properties.
2. State policy provides some general guidance in this proceeding such as with respect to economic development, urban design outcomes and transport corridors. The parties referred to various Clauses at the Hearing and I do not need to elaborate on them here. I have had regard to them.
3. The planning outcomes sought by the Scheme for this area through local policy are not clear-cut as there is some tension and conflict between them. These issues are discussed at length in Sarino Park[1] which considered an eight storey mixed use development.
4. Of note with respect to the proposal before me are:
   • The review site is within a Business 2 Zone that extends from the St Kilda Junction along Nelson Street and the north side of Wellington Street. The focus of this Zone is commercial use.
   • The Residential 1 Zone is opposite and south-east of the review site along the south side of Wellington Street. This is part of a larger residential area extending to the south and south-east.
   • Local policy has policy directions relating to the locale that may be within the Wellington Street Specialised Activity Centre, the St Kilda Major Activity Centre or a Neighbourhood Activity Centre and related to the St Kilda Junction. The parties have relied on it being within the Wellington Street Specialised Activity Centre with the Applicant also referring to its relationship to the Junction whereas the Council and Objectors distinguished the site from the Junction.
   • The site is within an office and mixed use area[2] consistent with its Business 2 zoning.
   • Local policy:
     • Encourages residential uses above the ground floor level in the Business 2 Zone to ensure that commercial functions are not lost[3];
     • Discourages residential and retail uses in the Wellington Street Specialised Activity Centre[4]; and
     • Encourages the consolidation for commercial and office uses in this Specialised Activity Centre[5].
   • With respect to built form, it is policy to ensure that new development responds to the varied scale of 2 to 4 storeys along the north side of Wellington Street and 4 storeys to the south with varied setbacks.[6]
5. A lack of clarity with respect to some of these matters is apparent in the above summary.
6. In Sarino Park, the Tribunal concluded that the area is designated for moderate residential growth[7] and that residential use above a ground level office would be an adequate response to the policies.[8] There may, in time, be more development adopting this type of mixed use format, including dwellings, mindful of the number of potential redevelopment sites within the Business 2 Zone. Examples are evident such as No. 35-37 Wellington Street.
7. Although the area has a commercial zoning, it is apparent that residential development within the same zone is a substantial and increasing land use.
8. While I agree with the Applicant that residents' reasonable amenity expectations within the Business 2 Zone are not the same as a Residential 1 Zone, it is also self-evident that this area is contributing to the municipality's residential growth in a significant way through the number of dwellings that have been erected and approved as well as additional proposals that are being advanced.[9] Consequently, while there is a focus on achieving commercial outcomes, the reality is a strong residential component and that is a relevant consideration.

Is the proposal an acceptable response to Clauses 22.08 and 52.05?

1. The provisions of Clause 52.05, that are further developed by policy in Clause 22.08, seek to achieve high visual quality in locating major promotion signs while (inter alia) not being detrimental to the appearance of their surroundings.
2. Decisions about applications for major promotion signs, and signs more generally (as relevant to this proceeding), focus on the effect on streetscapes and buildings, residential areas and view corridors. Commercial areas are one location where these types of signs are encouraged in a manner that complements or enhances the area's character. They are discouraged in various places including where they would form a dominant visual element from residential areas or where they would obstruct viewlines. In areas with a strong built form character, they are encouraged where they would not be a dominant element in the streetscape, and except for transparent feature signs, are discouraged from being erected on the roof of a building[10].
3. Further specific guidance is available through the local policy at Clause 22.08. It states that signs should not dominate a building and should not project above the skyline or profile of a building. With respect to freeways and infrastructure, it is policy through Clause 22.08 that:

Sky signs mounted on buildings or other structures which have exposure to or are directed toward the Westgate Freeway or other main road may only be permitted where the following requirements are met:

• They do not break the skyline or otherwise dominate the 'host buildings' to which they are attached.
• They do not detract from the architectural integrity of the 'host building'.
• They do not become the dominant element in the streetscape and do not detract from the overall character of the area.
• Support structures are designed so that they are unobtrusive, do not contribute to visual clutter, and do not become as dominant as the signage itself.
• They bear a relationship to the surrounding environment in terms of height and scale, including the relationship of the pole structure to the surrounding streetscape.
• They are designed and located so that they do not dominate the surrounding streetscape and do not contribute to visual clutter nor detract from the overall character of the area. [Emphasis added]

1. Clause 22.08 decision guidelines raise similar matters as Clause 52.05:
   • The character of the local environment including the location of any other signs and the need to avoid visual clutter;
   • The need to ensure that there is an equitable distribution of signage between premises in commercial precincts to avoid visual dominance of one business over another; and
   • Whether the signage will detract from the important characteristics of the area and responds to the policy directions specified for particular areas.
2. It is self-evident from the above that the form of signage proposed in this application is discouraged even on a main road except in identified circumstances. A fair and balanced assessment of the merits of a proposal must be undertaken to ascertain whether there are considerations relating to the subject site, its context or the proposal that meet those circumstances, or warrant a departure from the direction sought by this part of local policy, or otherwise justify support for the proposal on planning grounds.
3. The Applicant's case (inter alia) was that the proposal would not have an unreasonable visual impact mindful that this is the ideal location for signs of this type. Its case emphasised the site's location within a robust setting with large buildings and infrastructure, and existing signage including major promotion signs on Queens Way and St Kilda Junction. It was argued that the signs would be associated with a low rise building where they would be framed by higher, taller structures. The proposal was said to complement the existing character by adding a new form of signage, without overlapping with existing signage, and without breaking or dominating the skyline. It was the Applicant's case that the signs would not dominate the host building, would not be a dominant streetscape element given higher forms encouraged by policy, and are well designed to ensure no unsightly rear or support structures are evident in the Wellington and Nelson Street streetscapes.
4. I am not persuaded to accept Ms Collingwood's submissions and the evidence of Mr McBride-Burgess that the proposal is acceptable. While the support structures may be able to be discrete, there may not be competition with other existing signs, and the rear of the signs' structure may be better than others nearby because it is clad in colourbond, the position and scale of the signs would dominant the host building and would be seen in multiple views silhouetted above the building without a built form backdrop. The urban design outcome is at odds with the emerging character.
5. More specifically:
   • There are existing major promotion signs in the St Kilda Junction including two sky signs that date from the 1960s/70s. I do not think these provide a good precedent for the proposed sky signs even though the proposed signs have better design features.
   • In policy and physical terms, these sections of Nelson Street and Wellington Street are distinct, albeit related to, the St Kilda Junction. The focus of activity around the road intersection, including some signs, cannot be translated to the review site. I do not think the Scheme creates any expectation of signage around the Junction being carried through to the Wellington Street precinct on land that is more than 100 metres to the east and has a strong emerging residential role. The new building at 11-15 Wellington Street assists to provide a strong visual demarcation between the Junction and balance of the Wellington Street precinct eastwards. Other than the internally illuminated Oris sign, lit signage is not a feature of the locale.
   • There are several other signs to the east of the review site associated with Queens Way. I do not consider these provide justification for the proposed signs on the review site or establish a pattern of signage with which the proposal would fit and complement. These major promotion signs are firstly, on the north side of the Queens Way and attached to the embankment and secondly, a pole sign closer to the Chapel Street intersection also on the north side facing outbound traffic. Neither of them offers a positive precedent and they differ in character and type to the proposed sky signs. The Oris sign atop of its office premises in Wellington Street is a relevant consideration but it is much smaller than the proposed signs. It dates from the 1970s based on information provided by Ms O'Connor and does not change its content. Even if regarded as being business identification, this existing sky sign would not enjoy policy support today as the Scheme is seeking signs to be integrated with a building and to not break the skyline.
   • That the proposed signs would provide a new form of signage thereby adding to the diversity of signs is not an outcome of policy desired for this location . I do not consider this advances any specific policy or planning outcome for this setting or for the Specialised Activity Centre.
   • The height of the proposed signs would be lower than other existing and what may be approved in the future but this does not justify what is typically regarded as a poor design outcome even where the host building is not distinguished in terms of its architecture. Even with more development around the site being reasonably expected, so that the signs would sit in an even stronger built form setting, the proposed signs represent an unacceptable design response. Redevelopment of this area is enhancing the appearance and architectural quality of many sites in a robust and hard-edged way. The angled form and the position of the signs would detract from this emerging new character.
   • The two large signs would dominate the host structure being 4.35 metres high (with skirt) and extending over the whole width of the 9 - 9.5 metre high building. The angle of view and the angle of the signs would not enable both sign faces to be read together from many vantage points, such as to the south of Queens Way or from the Upton Street bridge, but the physical presence and dominance of the signage atop of the building would be notable even at some distance and with background built form. That includes at night despite the level of ambient lighting in this location.
6. The rear of the signs would be treated with colourbond with the aim of providing a finished appearance, unlike the rear of older signs, such as those around the Junction. This is a positive approach compared with the rear of the existing St Kilda Junction sky signs but the scale and position of the proposed signs would not be without impact. In referring to impact, I do not just mean that the rear of the signs would be visible. Rather, that the scale and form would represent an unreasonable visual intrusion. This is particularly with respect to residential properties close to the site, such as units in the five storey building at No. 21 Wellington Street, that face north and would experience the form at a distance of less than 15 metres.
7. I appreciate that the redevelopment of the review site could result in a larger and bulkier form but the design response for office or residential floorspace (or some other use) would be very different to the large colourbond panel across the rear of two 12.66 wide and 4.35 metre high signs expanding over the whole width of No. 23-27 Wellington Street.
8. The impact of the proposed signs would be more limited when viewed by pedestrians from Wellington Street because the signs would be positioned to the north of the building. There would, however, be views from upper level apartments within the Wellington Street residential area opposite the review site (eg. in Wellington Terrace) which I find unacceptable.
9. For the above reasons, I am not persuaded that the proposal responds in an acceptable way to the purposes of Clauses 52.05 and 52.05-6 and local policy. I find the proposed signs would be detrimental to the surrounds and would detract from the emerging character and desired outcomes for this location.

Would the proposal have an acceptable impact on residential properties?

1. Dwellings are located within apartment buildings in the Business 2 Zone adjacent to the site (eg. to the immediate west at No. 21 Wellington Street) and further west (eg. Nos. 11-15 Wellington Street), within multi-level buildings opposite in the Residential 1 Zone on the south side of Wellington Street, and various types and styles of dwellings in the Residential 1 Zone on the north side of Queens Way fronting Albert Street.
2. I have referred above to my concerns about the scale and position of the signs relative to some existing dwellings. I do not consider the impact is acceptable for the closest dwellings and the rear presentation of the signs is not a desirable addition to the area as seen from some properties in the residential precinct to the south and south-east that have upper level windows facing the site. (I have reached that conclusion aware that vegetation on some properties may limit or filter views and that the visibility of the signs would be reduced or lost in time should development be approved on sites such as No. 35-37 Wellington Street).
3. Views would be obtained from multiple dwellings in Albert Street because the signs would not be masked by the acoustic fencing that extends along much of the south side of the Albert Street road reserve. Here, the signs would be plainly evident atop of the building without a built backdrop even though taller structures would be seen in the same view. In fact, the degree of prominence of the signs would potentially be greater, despite the distance, at night as the two internally illuminated sign faces would be clearly viewed from multiple residential properties.
4. In referring to visual impact on the amenity of residential properties, I am not suggesting that the level of illumination and glare may be unreasonable having regard to the evidence of Mr Vandergriff. I accept his evidence and assumed that illumination and glare can be addressed through design changes and appropriate permit conditions. Rather, I find that the visual appearance of the proposed signage is not appropriate even if illumination is contained to acceptable levels.

1. Residents expressed concern about the prospect of the proposed signs adding to road hazards. VicRoads was not a referral authority for this permit application and the Council did not argue against the permit application on this ground.
2. Intuitively I appreciate that the angle of view for a driver to look up to the signs in this location, which has the underpass, tram safety barrier and curved road alignment, is arguably an issue. I have not explored this matter further, or sought more information from the Applicant, given the findings I have made above.

1. Other matters were raised in submissions, including the potential for approval of the proposal to set an undesirable precedent, lower property values, and conflict with proposed Amendment C108.
2. I do not address any of these matters in detail but I record that none of these grounds provide reasons for my decision (noting that, as far as I am aware, the proposed mandatory interim height controls in Amendment C108 have not been gazetted at the date of this decision).

1. For the above reasons, I will affirm the decision made by the Responsible Authority and direct no permit issue.

[1] Sarino Park Pty Ltd v Port Phillip CC & Ors [2012] VCAT 290 at paragraphs 12 - 43. The site was 35-37 Wellington Street.

[3] Clause 2.4 in Clause 21.04-3 and Clause 21.06-7 at 6.6.33 and 6.6.34.

[9] In Sarino Park, the Tribunal refused a permit. Anew five storey proposal has been prepared and, I was advised, is subject to Tribunal review. A hearing date has not been set.

[10] Clause 52.05-6 decision guidelines.