Victorian Civil and Administrative Tribunal|2004-11-17

Octopus Media Pty Ltd v Bayside CC [2004] VCAT 2304 (17 November 2004)

Bayside Planning Scheme; Application pursuant to Section 77 Planning and Environment Act 1987; Business 2 Zone; Major promotion sign; Visual impact

The decision of the Responsible Authority in relation to permit application No 2004/0320 is set aside. A permit is granted and directed to be issued pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 354 South Road, Hampton East.

Erection of a major promotion sign in accordance with the endorsed plans.

1 The location, details and associated structures of the sign shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

3 The sign must be located wholly within the boundary of the land.

4 The sign must be constructed and maintained to the satisfaction of the Responsible Authority.

5 Permission for this promotional sign will expire 25 years from the date of this permit.

6 Any one display or set of text must remain static and unchanged for a minimum of 30 seconds.

7 The intensity of the light in the sign must be limited so as not to cause glare or distraction to motorists or other persons or loss of amenity in the surrounding area to the satisfaction of the Responsible Authority.

8 Primary colours must not be dominant on each display and must be limited so as not to be mistaken for signals. These include red, yellow and green.

9 The sign must not be animated and no flashing or intermittent lights may be displayed.

Mr Jeremy Gobbo, QC by direct brief. Mr Andrew Biasci, Town Planner of Contour Consultants Aust Pty Ltd was called to give expert evidence.

No attendance - as advised in writing prior to hearing

1 This is an application to review a decision by the Bayside City Council to refuse to grant a permit in Application No 2004/0320 for the erection of a major promotion sign above an existing double storey office building on land at 354 South Road, Hampton East.

2 Submissions, plans, photos and other documents submitted at the hearing have been retained on Tribunal files. Parties referred me to three recent decisions of the Tribunal for sites close to the review site - Prime Advice Pty Ltd v City of Bayside [2004] VCAT 1074 (2 June 2004), Rococco Holdings PL v Bayside CC [2004] VCAT 1801 (13 September 2004) and Wyndson PL v Bayside CC [2004] VCAT 1877 (16 September 2004). An oral decision was delivered at the conclusion of the hearing. This summary contains the basis of those oral reasons.

3 The site is zoned Business 2. No overlays apply to the site. Both the Nepean Highway and South Road are in a Road Zone Category 1 and a Public Acquisition Overlay applies to the south west corner of the intersection, outside the property boundary of the review site (works associated with the overlay have already been constructed). Within the Business 2 Zone advertising signs fall within Category 2 and a Major Promotion sign is within Section 2 - permit required. The Roads Corporation (VicRoads) is a Referral Authority.

4 The proposal involves construction of major promotion sign having dimensions of 6 metres (length) by 5 metres (height) with total area of 30 square metres. The sign will have one face directed towards the intersection of Nepean Highway and South Road and will incorporate an electronically animated screen, much like a TV screen or electronic screen seen at football grounds. The sign is to be located above and towards the northern end of the existing two storey office building located on the review site.

5 Ms Bowdern outlined the locality, subject site, the proposal, planning scheme provisions, application history and Council's consideration of the application including strategic context, neighbourhood character, overshadowing, visual bulk and clutter, traffic and previous Tribunal sign decisions in the area.

6 Mr Gobbo QC, together with Mr Biasci, made a submission and gave evidence in support of the proposal. They dealt with the proposed sign, the review site and surrounds, planning policy, visual impacts, road safety and previous Tribunal sign decisions in the area.

7 Although I have not inspected the site specifically for this hearing, I am very familiar with the intersection and buildings in this location.

8 I note that the site is in a Business 2 Zone and that advertising signs are Category 2, which is the second lowest level of control (Low Limitation). Moorabbin is a Major Activity Centre and this is a very large and open intersection.

9 There are no safety or traffic issues raised by this proposal and VicRoads and Council's engineers did not raise any objections on these grounds.

10 The planning scheme does not contain specific local policies dealing with signs. Moorabbin is identified as a gateway opportunity but there is nothing in the scheme regarding advertising, built form, character and the like.

11 The main issue concerns visual appearance. I accept Mr Biasci's evidence that despite having a South Road address, the site has a Nepean Highway context rather than a South Road context. Nepean Highway, as Council concedes, contains many Major Promotion Signs and has that as a dominant character. I therefore distinguish Member Terrill's decision at No 350 South Road which clearly has a South Road address and orientation, is close to residential properties and sits within a South Road context of buildings stepping down the hill to the residential areas to the west.

12 The sign is orientated to Nepean Highway and will be highly visible. If it wasn't highly visible then there would be no point locating it in this position. However, it is of a modest size compared to the existing large signs in the centre and is less than half (just over one-third) the size of the sign to the south of the site.

13 The sign is an example of modern technology and will help add interest/vitality to this very open and bland intersection. I like the concept of a large TV type screen - it is a sign of the future and I consider it visually far preferable to the large panel signs of the past.

14 The decisions of Senior Member Liston and Members Terrill and Naylor are all for signs in this centre but each can be distinguished from this case. Apart from the different technology, the sign considered by Senior Member Liston Wyndson PL v Bayside CC [2004] VCAT 1877 (16 September 2004) had a Nepean Highway context but a residential interface, the sign considered by Member Terrill Prime Advice Pty Ltd v City of Bayside [2004] VCAT 1074 (2 June 2004) had a South Road context and residential interface while the sign considered by Member Naylor Rococco Holdings PL v Bayside CC [2004] VCAT 1801 (13 September 2004) had a Nepean Highway context and very limited residential interface. This case has elements of all these but is different.

15 As previously noted, I consider this site has a Nepean Highway rather than South Road context, it has a very limited residential interface (partly reflected by the lack of resident objection compared to those for the Prime Advice Pty Ltd site) and the sign itself is of a relatively small scale. It also sits, depending on the viewpoint, within a view shed comprising buildings of different heights, scale and bulk, lots of road infrastructure including tall light and power poles, very high telecommunications infrastructure, some very large signs on the tops and sides of buildings, together with the general impacts of vehicles and commercial activities in and around the intersection.

16 In relation to conditions, I am satisfied that a 25 year time limit is reasonable. Although the sign represents new technology, it is quite likely (even highly likely) that change in our built environment over the next 25 years will result in this sign disappearing or being replaced well before that time is up. Despite this possibility, I consider it unwarranted to impose a lesser time limit than 25 years.

17 Having regard to the above, I will set aside Council's decision and Order that a permit issue subject to conditions.

Environment Act 1987

Octopus Media Pty Ltd v Bayside CC [2004] VCAT 2304

At a glance

Court

Decision date

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Judgment (32 paragraphs)

Octopus Media Pty Ltd v Bayside CC [2004] VCAT 2304 (17 November 2004)

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Legislation Cited (1)