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The signs 7, 8 and 10 must be in accordance with plan No. TP1-2-GA-2001 except show the removal of the border to each sign and have sign 7 positioned so it is aligned with signs 8 and 9.

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The signs hereby permitted must not be animated or contain any flashing light.

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The signs must not be internally illuminated.

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The content of the signs must promote goods, services, an event or any other matter undertaken or sold or for hire within the Melbourne Central complex.

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The approval of these signs expires on 10 April 2012 or when construction of the approved office tower commences, whichever is the earlier date.

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The signs must be kept in a good condition at all times.

Ms S. Brennan of Counsel. Ms Brennan called Mr S. McGurn, Planning Consultant, and Mr I McDougall, architect

Mr J. Smithers of the Victorian Government solicitors Office

Mr M. Townsend of Counsel. Mr townsend called Mr R. Moore, Urban Designer.

1 These Applications for Review are made under Section 149 of the Planning Environment Act 1987, and seeks a review of the decisions of the responsible authority not to allow the display of Major Promotional Signs along the external walls of the Melbourne Central located within the core retail area of the Melbourne CBD, bounded by LaTrobe, Elizabeth, Lonsdale and Swanston Streets.

2 At the commencement of the hearing Mr Townsend made application for the City of Melbourne to be made a party to these proceedings. There was no objection to this application and we granted the application.

3 There are eight signs which are in dispute in these matters. In broad terms the nature of the disputes in relation to each of the signs can be summarised as follows:

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Signs 1 to 4 and 11 - (existing signs located on La Trobe and Swanston Streets) Restriction to tenancy related content.

• Signs 7 and 10 - (Lonsdale Street) Concerns in respect of location, size and content.

• Sign 8 - (Lonsdale Street) Concerns in relation to location and content.

4 We were advised by the parties that the Melbourne Central complex has undergone substantial refurbishment. This refurbishment has occurred both internally and externally of the existing centre complex.

5 It is unnecessary for us to repeat the detailed submissions provided by all the parties suffice to say that we have carefully considered all the submissions in coming to our conclusion in this matter.

6 Essentially three principal issues arose from this proceeding for determination:

i

Is the existing Incorporated Document in the Melbourne Planning Scheme which governs the Melbourne Central development the appropriate mechanisms for the major promotion sign approval constituted by this application?

ii

Are the proposed Lonsdale Street signs appropriate in terms of their size and location?

iii

Is it appropriate to limit some or all of the signs sought to be approved to business identifications signs advertising businesses and activities undertaken within the Centre?

7 The review site is zoned Capital City Zone 2. Amendment C62 to the Melbourne Planning Scheme was approved by the Minister for Planning on 10 April 2002. The Amendment inserted a new Incorporated Document into the schedule to clause 52.03 (Specific sites and inclusions) and Clause 81 (Incorporated Documents) of the Melbourne Planning Scheme. The Incorporated Document allows the redevelopment of the Melbourne Central complex for specified purposes, and contains specific controls including conditions and a set of plans and elevations.

8 The Responsible Authority for the signage approval pursuant to the Incorporated Document is the Minister for Planning.

9 At the commencement of the hearing Mr Townsend raised a preliminary matter in relation to the appropriate approval mechanism for the signs which are the subject of these reviews.

10 Pursuant to Section 66 (1)(a) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, the parties agreed to the Presiding Member deciding this point. The decision on this point is made by the Presiding Member.

11 Mr Townsend submitted that the applications for review in this matter are misconceived and that fresh applications should be made for Major Promotion Signs to the City of Melbourne as the responsible authority. The basis of Mr Townsend's submission was that the applicant is seeking a review of the Minister for Planning's refusal to approve Major Promotion Signs pursuant to Clauses 2, 3 and 19 of the Incorporated Document "Melbourne Central Redevelopment March 2002" which, in Mr Townsend's submission can be described as secondary consent clauses.

12 Mr Townsend submitted that the Planning Scheme requires primary permission for the land use "Major Promotion Sign" pursuant to Clause 37.04, Schedule 2 and that in accordance with the principles established by the Tribunal in Abacus v Yarra CC (1996/44389), secondary consent clauses cannot be relied upon where a Planning Scheme requires primary permission for a use or development. It was submitted that this principle has been recently affirmed by Deputy President Gibson sitting with Senior Member Liston in Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049 (31 May 2005).

13 Mr Townsend acknowledged that the Incorporated Document is part of the planning scheme through the operation of Clause 81 "Incorporated Documents", that the Incorporated Document contemplates external advertising and that therefore it might be concluded that no further permission is required under the Planning Scheme. Notwithstanding the compelling logic of this conclusion, Mr Townsend contended that the terminology used in the Incorporated Document in relation to advertising signs is very broad and covers a wide variety of advertising signs which are defined in the planning scheme, some of which may require a permit under the scheme, and some of which may not. Where signs do not require a permit or where they are of a type which can be regarded as being ancillary to the operation of Melbourne Central, Mr Townsend was content for permission for such signs to be determined by the Minister. With respect to Major Promotion Signs which do require a permit under the scheme and which cannot be regarded as ancillary to Melbourne Central, it was submitted that a planning permit application ought be made to the City of Melbourne and that this would assist in achieving openness, efficiency and transparency in the planning process in relation to approvals for Melbourne Central.

14 The first comment I make in relation to these submissions is that I disagree with Mr Townsend's submission that the effect of adopting his submission would lead to efficiency, openness and transparency in the planning approval process for Melbourne Central. To the contrary it would, in my view, create an approval mechanism involving overlapping controls and duplication of approvals, a circumstances which would be entirely contrary to the intent of the approval of Amendment C62 to the Melbourne Planning Scheme which inserted the Incorporated Document into the scheme. I note in this respect that the Explanatory Report to that Amendment states that;

The amendment is required to facilitate the redevelopment of the Melbourne Central site and to incorporate the proposed development scheme into the Melbourne Planning Scheme. The Melbourne Central redevelopment will enhance the retail core and promote the commercial, retail and residential function of Melbourne as a prosperous and pedestrian city.

The proposal will incur significant costs that need to be dealt with through the incorporation of a range of activities that will bring long term benefits to Melbourne Central and the CBD retail core. Hence, the proposal includes new activities such as entertainment facilities and office accommodation, both of which are essential to the redevelopment of and long term viability of the new Melbourne Central.

The redevelopment of Melbourne Central includes an office tower over 12 levels (73 metres in height) fronting Lonsdale Street, which exceeds the mandatory height limit of 40 metres which exists across the retail core.

The conditions of the proposed incorporated document in the Melbourne Planning Scheme will ensure appropriate design and development of the subject facilities in terms of off-site amenity impacts

15 The Explanatory Report details the strategic, social and economic benefits to be derived from the redevelopment of Melbourne Central and I think there is a clear intent in the approval of Amendment C62 to ensure that the approval mechanisms for the redevelopment are consistent with the stated intent of facilitating that redevelopment.

16 The Incorporated document allows:

Development including demolition and redevelopment of existing buildings, including exceeding the core 40 metre height control, and use of the land for the purposes of but not limited to, Office, Retail premises (other than adult sex bookshop), Hotel, Tavern, gymnasium, Cinema, ancillary car parking and public car park, generally in accordance with the plans prepared by Ashton Raggatt McDougall Architects, and titled:

• 'Melbourne Central' dated 10/01/02, Drawing Nos TP03-M - A1001 to A1011 inclusive and A2000, A2002, A2012, A3001, A3003, A7000, A7001, A7002, A7003, A7006.

17 The Incorporated Document relevantly includes conditions requiring the submission and approval of amended plans which after approval would form part of the incorporated document, and which are required to include among other matters, the schematic design and location of external advertising signs. Conditions 2 and 3 of the incorporated document require the use and development to be carried out generally in accordance with the approved plans or such modified plans which may be substituted with the consent of the responsible authority, or modified with the consent of the responsible authority. Clause 19 of the incorporated document provides:

No advertising signs shall be erected, painted or displayed without the permission of the Responsible Authority unless in accordance with the plans prepared by Ashton Raggatt McDougall Architects, and endorsed by the Minister for Planning or the provisions of the Melbourne Planning Scheme.

18 My examination of the provisions of the Incorporated Document and Amendment C62 to the Melbourne Planning Scheme which introduced the Incorporated Document leads me to conclude that the Incorporated Document is the primary mechanism under the planning scheme intended to facilitate approvals for the redevelopment of Melbourne Central. The Incorporated Document requires plans to be submitted and approved showing external advertising and, quite sensibly in my view, there is also provision for secondary consents which enable the responsible authority to approve plan modifications as the design of the project evolves. I agree with Mr Smithers' submission that the Incorporated Document is deliberately broadly drafted and allows flexibility in terms of what variations to the incorporated plans may be allowed, without of course such variations constituting a transformation. In relation to advertising signs specifically, I also agree with Mr Smithers' submission that the incorporated plans show high level concepts and the text allows for a discretion to be exercised in considering detailed proposals.

19 Having regard to my findings above, I do not need to make a finding with respect to Mr Townsend's alternative submission regarding waiving compliance with a procedural deficiency, because I do not consider that a procedural deficiency has arisen in the processing of the applications.

20 The three signs in question are major promotional signs in the following locations:

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Sign 7 - 6.5m x 9.5m - west side of pedestrian bridge.

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Sign 8 - 6.5m x 4.25m - west side of pedestrian bridge.

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Sign 10 - 6.5m x 9.5m - east side of pedestrian bridge.

21 There is an existing approval for sign 9 which consists of a sign 6.5m x 4.25m located west of the pedestrian bride and advertises tenant related contents (Billabong). In addition a sign identical to sign 8 has been approved in a different location again advertising tenant related material (Kingpin)

22 Under Part 5 of the Melbourne Planning Scheme the Municipal Strategic Statement states that advertising signs need to respect and not dominate the host building. It goes on to:

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require advertising signs to respect the architecture of the building they are on and the character of the surrounding streetscape and ensure that they do not dominate a streetscape or building or interrupt the skyline.

23 We are of the view that these signs will not dominate the streetscape or building or interrupt the skyline and to that extent are not inconsistent with the objective set out under Part 5of the MSS.

24 These signs (including sign 9) are all located on either side of the pedestrian bridge making them effectively visible from only one direction.

25 Mr Townsend on behalf of the Melbourne City Council submitted that the heritage façade of the Myer building opposite would be detrimentally affected by the proposed signs on the Melbourne Central building.

26 Lonsdale Street at this location is quite wide and carries heavy traffic which have the affect of creating a significant visual separation between the Melbourne Central Building and the significant Myer building. The form and style of the Melbourne Central building itself is also quite different to that of the Myer building. As such we are of the view that the proposed signage on the north side of Lonsdale Street would have no significant impact on the heritage significance of the Myer building.

27 We consider these signs to be relatively discretely located. We also note the temporary nature of the signs given the proposed redevelopment of that façade to accommodate a future office tower which has already been approved under the Incorporated Document approving the refurbishment of Melbourne Central. As a consequence, we are of the view that the signs represent an appropriate means by which to articulate on a temporary basis what is an otherwise very bland façade.

28 We are also of the view that the approval of the signage should be linked to the life of the approval for the commencement of the office tower. At the end of that period the nature of signage in this location can be reviewed for a more permanent arrangement or decision in respect to signage along this façade, if considered appropriate.

29 There is no question in our view that promotional signage is an accepted and valid part and parcel of the experience one has in any modern international capital city such as Melbourne. The zone itself and the provisions of Clause 52.05 recognise the role that business identification and promotional signage plays in adding vitality and colour to business areas, and it comes as no surprise therefore that promotional signage is not uncommon throughout the CBD.

30 What is important in our view is the need to consider and balance the appropriateness of the location, the size of the sign, the size of the host building, the number of signs and the need to avoid visual clutter.

31 We are also of the view that promotional signage can be a valid means of communicating messages to people as well as being part of an attractor to a retail centre.

32 We do acknowledge that there are site specific circumstances which are relevant to the consideration of whether the content of signage ought to be controlled. Circumstances in which the nature of the content of signs may be site sensitive include Residential Zones or, in a business area context, locations where there are limited opportunities for business signs.

33 With respect to existing signs 1, 2, 3 and 4 and the LED sign, there were no issues raised as to the size and location of these signs. It was agreed that these signs were part of a holistic architectural approach in the redesign of the Melbourne Central external façade along the two street frontages. It was recognised that these signs are highly exposed and will play a part in attracting patrons to the centre. It was submitted however that the size and location of these signs as approved, are larger and more prominent than might otherwise have been approved and the approval of these signs represents concessions on the part of the authorities to facilitate the revitalisation of Melbourne Central. As part of that revitalisation, it was submitted that the content of the signage must be tenant related and that approval for promotion signs would conflict with the intent of the approval of the signs originally granted.

34 We are of the view that with the exception of sign 3 (cinema related) the signs should not be limited to business identification signage. We have arrived at this conclusion because we do not think that the revitalisation of Melbourne Central, a factor which apparently influenced the decision to grant permits for these signs in the first instance, will be in any way compromised by allowing promotional signage. We have not been persuaded by the submissions made to us that this objective is best achieved by limiting the signage content to tenant related messages. The size, style and location of the signs as they exist, make some contribution to the architectural treatment of the building and we think this is an important factor in drawing attention to the building in the desired manner.

35 We are not convinced that the limitation on signage content to the display of tenant related messages on these signs, plays a significant role in promoting the centre. This is not to say of course that tenant related messages are unimportant in the promotion of the centre, but the approach taken in this matter by the responsible authority and the Melbourne City Council appears to be that only signs displaying tenant related messages can be an acceptable means of promoting the centre. We do not agree with this approach and we were not presented with any evidence that has persuaded us that this approach is the correct one. Indeed Mr Moore, who gave evidence on behalf of the Melbourne City Council, acknowledged that, in urban design terms, promotion signs can be visually appealing and may attract customers to the centre. Mr Moore's opposition to allowing these signs to be used for promotional signage, was based on a view that unless the product being promoted is available in the centre, customers will become confused. Mr Moore was also of the view that promotional signage would be inappropriate because it conflicted with what the applicant had previously intended.

36 These concerns do not in our view have sufficient strength or merit to lead us to a conclusion that these signs, in this location, should be limited in content to effectively business identification signs.

37 Turning our attention to the Lonsdale Street signs, we think that there is some merit in imposing a constraint on the content of these signs. We have taken this view on the basis that at least some business signage ought to form part of a comprehensive or integrated package of signage for Melbourne Central, and we think the Lonsdale façade of the building is the appropriate location for these signs. We have formed this view primarily on the basis that this location has a more limited level of exposure than the Swanston and La Trobe Street locations.

38 We believe it would be unnecessarily restrictive to require the contents of these signs to be business identification signs only, as defined in the planning scheme at Clause 73. Both Council and the responsible authority expressed concern that approval for promotional advertising would provide an opportunity for signs promoting, for example, car manufacturers, timber merchants or services simply not available within the Melbourne Central, and that this would not be of any assistance in promoting the revitalisation of Melbourne Central.

39 In our view the signage on the Lonsdale Street façade can be limited by condition to the effect that the content of the signs must promote goods, services, an event or any other matter undertaken or sold or for hire within the Melbourne Central complex. We are of the view that this condition allows for the promotion of goods and services available at Melbourne Central, while at the same time allowing a degree of flexibility in the content of signage, beyond that available via the restrictions sought by the Council and the Responsible Authority which requires advertising to be specifically linked to a tenant within the centre. There was some discussion during the course of the hearing regarding the imposition of a condition of this type and it was submitted by the Council and the Responsible Authority that it would provide too much flexibility in that it may allow, for example, advertising for a holiday destination, on the basis that a travel agent may be located within the centre.

40 We agree that such advertising could be contemplated under the terms of the condition, but we think that this is entirely appropriate because, in terms of promoting the revitalisation of the centre, this form of advertising would be very successful. In this context we can see no reason why advertising of this type ought to be restricted. We are of the view that the condition we have imposed ought to allow for a wide range of goods and services available in the Melbourne Central to be advertised while also restricting broader advertising contents for goods or services which are not available within the Melbourne Central.

41 It follows from the above reasons that it is our conclusion that the decision of the responsible authority should be varied and approvals granted under the Incorporated Document in accordance with the attached Order.