P171/2016 - Application under s 149A of the Planning and Environment Act 1987 - whether advertising sign has the benefit of existing use rights, and whether the Council can require the sign structure to be removed.

P416/2016 - Application under s 79 of the Planning and Environment Act 1987 - review of failure by responsible authority to decide permit application for advertising sign within prescribed time.

Capital City Zone (Schedule 1 - Outside the Retail Core).

Design and Development Overlay (Schedules 1, 3 & 10).

Permit requirements depend on the extent (if any) of existing use rights, and the nature of the proposed works. Relevant requirements potentially include:

• clause 37.04 (cl 5 of Schedule 1) - advertising signs;
• clause 52.05-5 - existing signs;
• clause 52.06-6 - major promotion signs;
• clause 63.05 - buildings and works in conjunction with an existing use right; and
• clause 62.02-2 - exempt buildings and works.

1. Octopus Media Pty Ltd (Octopus Media) presently manages an existing rooftop advertising sign located atop a 10-storey building at 500 Flinders Street, Melbourne. The fixed floodlit advertising display is highly prominent from the south bank of the Yarra River, and to road traffic approaching the Melbourne CBD through the Crown Casino tunnel at Kings Bridge (Kingsway).
2. Melbourne City Council (Council) is the responsible authority for the administration and enforcement of the Melbourne Planning Scheme.
3. The existing sign, and previous iterations of it, have a complex planning history in relation to both development and use, and this is not the first time that the sign has been before VCAT or its predecessors. The Council contests the lawfulness of the existing sign.
4. Octopus Media seeks an outcome that would acknowledge or legitimise the continuing use of the sign, and allow for its upgrading to become an 'electronic major promotion sky sign' in a modern form that allows for an LED panel advertising display to change every 20 seconds.
5. To achieve this outcome, Octopus Media asserts existing use rights in relation to the existing sign, or alternatively it seeks a permit for the use. Either way, Octopus Media contends that the minor works required to convert the existing sign into an electronic major promotion sky sign do not require a permit, or alternatively it seeks a permit for these works.
6. The Council contests the claimed existing use rights, and did not determine the permit application within the statutory timeframe. The Council has since indicated that it would have refused to grant a permit, and has also foreshadowed action to have the existing signage structure removed. Accordingly, Octopus Media has made two applications to VCAT:
   • seeking a declaration of existing use rights, and a declaration that there is no statutory basis for the Council to require the removal of the signage structure (declaration proceeding); and
   • further or alternatively, seeking to review the failure of the Council to grant the permit for use and/or works to the extent either of those matters require a planning permit (review proceeding).
7. The declaration proceeding and the review proceeding arise respectively under s 149A and s 79 of the Planning and Environment Act 1987 (P&E Act). For convenience, the two proceedings were heard together, and there is some overlap in the background factual material and evidence as between the two proceedings. However, VCAT's power under s 149A of the P&E Act is exercisable only by a presidential or legal member, therefore the declaration proceeding has been decided by DP Dwyer alone. Both DP Dwyer and Member Keddie have jointly decided the review proceeding.

1. The declaration proceeding has been decided by DP Dwyer alone, and this section of the reasons is provided by DP Dwyer alone.
2. Octopus Media seeks declarations pursuant to s 149A of the P&E Act that:
   • an existing use right for the purpose of the display of the sign has been established pursuant to clause 63 of the Melbourne Planning Scheme, and does not contravene the scheme; and
   • there is no statutory basis for the responsible authority to require the removal of the signage structure.[2]

1. Given the reliance on existing use rights, it is desirable to first set out in some detail the background facts in relation to the history of advertising signage on the land. In doing so, I will attempt to draw together relevant material filed or presented separately by Octopus Media and the Council.
2. As a starting point:
   • The building on the land was constructed in or about 1974.
   • Between 1974 and 1983, initial unsuccessful attempts were made to obtain a planning permit for various forms of advertising signage on the building rooftop. There is a record in 1974, for example, that the then Town Planning Appeals Tribunal refused a permit for an internally illuminated flashing sky sign.[3] The Council opposed an application for an externally illuminated business sky sign in 1983.[4]
   • In October 1988, following an initial refusal by the Council and a successful appeal to the then AAT,[5] permit DP88/0006 was issued for the purpose of erecting and displaying a 'floodlit sky sign'. Plans were endorsed, but no sign was then constructed.
   • On 15 March 1990, the Council issued an amended permit DP88/0006. The amended permit was for the attraction and display of an 'animated, internally illuminated, promotion, sky sign'. The permit conditions remained the same.
   • Also on 15 March 1990, the Council endorsed a plan under the amended permit. The plan showed a sign 15 m long and 2.25 m high, containing the lettering 'GoldStar'. The plan is annotated with an animation sequence showing how the letters G-O-L-D-S-T-A-R were to be illuminated sequentially, or all on or off.
3. The endorsed plan discloses that the sign was then managed by Buckle Outdoor Advertising. Octopus Media does not therefore have any detailed material about the original sign. Octopus Media asserts that, in 1990, a sign was constructed in accordance with the endorsed plans, and was used to display the 'GoldStar' lettering from 1990 to 1997. The evidence about this is limited and equivocal.[6] However, the Council does not contest that the 'GoldStar' sign was constructed and existed within this general period.
4. Octopus Media asserts that permit DP88/0006 did not contain an expiry condition. The permit predates mandatory expiry conditions for advertising signs that were introduced in or around 1996.[7] However, the permit does contain as condition 2 a requirement that the sign be maintained to the satisfaction of the responsible authority 'for the duration of the permit', which infers some possibly limited lifespan for the sign that is unexplained in the permit or other documents.
5. I return to the relevant chronology:
   • On 25 March 1997, following an initial refusal by the Council and a successful appeal to the then AAT,[8] the Council issued a permit TP96/324 for the direction and display of an 'internally illuminated, floodlit, panel, promotion, animated, sky sign' in accordance with a substituted plan dated 20 January 1997.
   • The original permit application had been to replace the existing Goldstar sign, but the AAT decision records that the application was amended to facilitate a new and enlarged internally illuminated animated panel promotion sky sign.
   • The plan endorsed on 1 July 1997 was for a sign 18 m wide and 4.5 m high, with an advertising area of 81 m², and advertising 'LG Electronics'.
   • Condition 8 of permit TP96/324 contained a condition that:

In accordance with clause 7-6.1A State Section and section 62(1)(a) Planning and Environment Act 1987 this permit expires four years after the date it is issued.

• It is unclear exactly when the 'LG Electronics' sign replaced the 'GoldStar' sign and/or whether there was a gap in between. Octopus Media relies on a photograph that it infers was likely taken in or around 2000 as evidence that the 'LG Electronics' sign was in place by that time.[9] The 2015 affidavit of Shelley Ornsby recalls that the sign was used to display an LG advertisement sometime in the late 1990s and/or early 2000s.[10] The Council is unable to assist on this issue from its records,[11] but does not contest that the sign was likely in place in 2000.

1. In relation to the effect of condition 8 of permit TP96/324:
   • The four-year expiry in condition 8 was a mandatory condition then required under an interim planning scheme control, pending the outcome of an advisory committee report and recommendations on advertising sign provisions.
   • Through Amendment VC5 to VPP-based planning schemes (including the Melbourne Planning Scheme) as from 25 March 1999, clause 52.05 of the planning scheme was updated to introduce new provisions for advertising signs, including expiry provisions for a 'major promotion sign' and other signs.
   • Under the updated sign categories and definitions introduced through Amendment VC5, a 'major promotion sign' was a promotion sign (amongst other things) with an area exceeding 18 m². Although the promotion sign authorised by permit TP96/324 had not used the word 'major', it was clearly a 'major promotion sign' (amongst other things) under the new sign categories.
   • Through Amendment VC7, as from 26 August 1999, clause 52.05-1 of the planning scheme was inserted as follows:

A major promotion sign displayed in accordance with a permit granted between 19 September 1993 and 18 September 1997 may continue to be displayed until 18 September 2007.

1. The permit TP96/324 had been granted during the period referred to in Amendment VC7. Accordingly, condition 8 must be read as allowing the sign authorised by that permit to continue to be displayed until 18 September 2007.
2. As will be seen, the Council had by 2007 formed a view that the 'LG Electronics' sign erected and displayed purportedly in accordance with permit TP96/324 was not compliant with that permit, and did not have the benefit of the extension of the expiry condition.
3. I return to the chronology:
   • The sign display changed intermittently in the period in and following 2002. There are photographs of the area from various sources showing advertising messages displayed on the sign - for example, for Westpac in or around 2002, for Bacardi in or around 2006 and for 'Australia's largest Serviced Office Complex' in or around 2007.[12]
   • On 27 March 2007, SJB Planning (as agent for Eyecorp, the then lessee/manager of the sign) made application TP-2007-270 for a permit to 'maintain signage approval for illuminated major promotional roof sign' and indicated that the land was then being used for such a sign. Information accompanying the application confirmed that the application was being made because of the pending expiry of permit TP96/324 on 18 September 2007.
   • On 6 June 2007, the Council refused the application TP-2007-270 on the grounds of visual impact, including a detraction to the appearance and character of the Yarra River environs, and because the proposal was contrary to policy. The officer report of 24 May 2007 that recommended the refusal noted changes that had occurred since the sign was first approved, including the completion of Crown Casino and the Melbourne aquarium, the removal of the Flinders Street - King Street overpass, the removal of other major promotion signs, and changes to planning controls and local policy.
   • The officer report of 24 May 2007 appears to also represent the first documented indication of Council concerns about the lawfulness of the then existing sign. An opinion is expressed that the sign is 'illegally displayed' and 'does not conform' to the description in the permit TP96/324, as no part of the sign is internally-illuminated, no part of the sign is animated, and four yellow flags are displayed above the sign. The Council was also then of the view that, given this non-compliance, the sign did not have the benefit of the extended expiry conditions authorised through Amendment VC7.
   • An application for review of the Council refusal was made to VCAT,[13] but was later withdrawn. The VCAT order of 26 September 2007 notes the consent withdrawal, and notes a letter from Jewell Partnership on behalf of the permit applicant as follows:

We act for the permit applicant/appellant. Our client no longer wishes to proceed with the matter due to a recent review of signage controls instigated by the Victorian State Government. As well the "September 2007" class permits (which the current sign is included in) have had an extended life of 12 months. The two parties, the Melbourne City Council and VicRoads have both consented to our client's request.

• The reference in the Jewell Partnership letter to an 'extended life of 12 months' appears to be an indirect reference to Amendment VC45, approved on 17 September 2007, which amended clause 52.05-5 of relevant planning schemes to further extend the expiry condition in permits referred to in Amendment VC7 for a further year until 18 September 2008. Presumably, Jewell Partnership and its client believed that the sign had been given a reprieve from any imminent expiry, and that it did not therefore need to proceed with the new permit application (and consequential VCAT proceeding) at that time.
• The sign display continued to change intermittently during 2007 and 2008. There are again photographs of the area from various sources, showing advertising messages displayed on the sign - for example, for Voodoo in 2007/08 and for Tom Waterhouse in November 2008.
• On 15 September 2008, through Amendment VC49, clause 52.05-6 was amended to provide a 'final' extension to the expiry condition for relevant permits until 31 December 2008 or 'where a permit application seeking permission to display the sign is lodged before 31 December 2008, until the permit application is finally determined'.

1. I return again to the chronology:
   • On 4 December 2008, the Council's enforcement officer wrote to Jewell Partnership (on behalf of Eyecorp) expressing the Council's concerns about the lawfulness of the sign and requiring removal of the sign and its support structure by 26 January 2009. On 22 December 2008, the Council sent a further letter reiterating its position that the display of the sign on the land was in contravention of the scheme, and again requiring the removal of the sign and its support structure by 26 January 2009. These are the two letters that the Council relies upon as its first clear and unambiguous written direction that the noncompliant use should cease.
   • On or about 23 December 2008, Jewell Partnership made application TP-2008-1136 for a permit to 'maintain existing promotional signage with slight increase in area (81 m² to 86 m²)'. An accompanying letter noted that the current permit TP96/324 expires on 31 December 2008 or until this application is determined (i.e. following the wording of Amendment VC 49).
   • The letter accompanying the permit application noted that the application differed from the application a year earlier. It indicated that the then existing sign was an externally illuminated sign, 18 m wide and 4.5 m high, with an advertising area of 81 m². The proposal was to increase the signage area to 18.99 m wide and 4.57 m high, with an advertising area of 86 m², and with 'a clarification on the lighting'. The accompanying plans show a floodlit (externally illuminated) sign, presumably to deal with the Council's concerns about compliance with the description of the sign authorised by permit TP96/324. The Council treated the application as being one for the 'construction and display of a floodlit major promotion panel sky sign'.
2. At the time the application TP-2008-1136 was made, and presently, clause 52.05-5 of the advertising sign controls in the planning scheme provided (separately from issues concerning the expiry clause for earlier permits) as follows:

A lawfully displayed advertisement may be renewed or replaced. However, a permit is required:

• To renew or replace the advertisement of an animated or internally-illuminated sign.
• If the advertisement area is to be increased.
• If the renewal or replacement would result in a different type of sign.

A sign that is reconstructed must meet the relevant advertising sign requirements.

1. Assuming the sign was then lawfully displayed, a permit was still required (as a minimum) to increase the advertising area from 81 m² to 86 m².
2. I return to the chronology:
   • On 12 January 2009, the Council closed its enforcement file pending a determination of the permit application.
   • On 5 March 2009, the Council refused the application TP-2008-1136. The grounds were similar to those upon which the earlier application TP-2007-270 had been refused a year earlier.
   • An application for review of the Council refusal was made to VCAT.[14] Although Jewell Partnership had indicated in its permit application that it was being made on behalf of Eyecorp Pty Ltd (presumably as the then lessee/manager of the sign), the application for VCAT nominated the applicant as Owners Corporation RP5395 (Owners Corporation) - i.e. the owners corporation for the building upon which the sign was located.
   • Following a hearing, and in a decision dated 23 March 2010 in Owners Corporation RP 5395 v Melbourne City Council[15] (the 2010 VCAT proceeding), the Tribunal refused a permit for a floodlit panel major promotion sky sign. The decision in the 2010 VCAT proceeding is of some significance to the review proceeding. For present purposes, although there was extensive reference in the 2010 VCAT proceeding to the existing sign, there was no reliance by the applicant on any existing use rights.
3. In the absence of other mitigating factors, even if the extended expiry clause under Amendment VC49 applies, the major promotion sign displayed in accordance with permit TP96/324 could only continue to be displayed until the final determination of the application TP-2008-1136 through the VCAT decision on 23 March 2010.
4. In December 2009 and January 2010, the sign displayed an advertisement for 'Johnny Walker', and in 2010 for the Triple M radio station.[16]
5. In or around 2010, the sign ceased to be used for paid advertising. It is not clear exactly when this occurred. However, the following evidence exists:
   • Through her involvement on the Owners Corporation committee, Shelley Ornsby indicates an awareness that the sign was previously leased on a fixed term during the 2000s through to about 2010, with some month-to-month leasing after that time.[17]
   • The audited financial statements for the Owners Corporation show that the Owners Corporation received rent from the roof sign of $66,658.73 in the year ended 30 June 2009, $39,270.23 in the year ended 30 June 2010, and zero in the year ended 30 June 2011.[18] This is consistent with the rental income from the sign decreasing in 2009/10 and ceasing no later than 30 June 2010. There is also no entry for rent from the roof sign in the audited financial statements for the years ended 30 June 2012 and 30 June 2014 (with the 2014 statement not referencing any such rental income for the year ended 30 June 2013 either).[19]
   • A letter from the solicitors for Octopus Media to the Council dated 21 April 2015 confirms that various advertisements were continuously displayed on the sign up until sometime in 2010. This same statement is reflected in a report by Urbis in July 2015, accompanying the current permit application that is the subject of the review proceeding.
6. In its submissions in the declaration proceeding, Octopus Media concedes that from about 2011 to 2015, the sign was not used for paid commercial advertising, although the sign structure remained in place at all times.
7. During the period from about 2011 to 2015:
   • There was an ongoing dispute between the former Owners Corporation managers (Sterling Properties), and the lot owners within the Owners Corporation. According to Mr Halsall, this included a dispute about to whom to lease the rooftop sign for future advertising.[20]
   • The face of the sign was subject to graffiti and tagging.[21]
8. The characterisation and consequences of these two matters are of quite some significance in the declaration proceeding, and I will deal with them in greater detail below.
9. Bringing the chronology to the present time:
   • In January 2015, via postal ballot, the lot owners within the Owners Corporation approved a roof sign lease with Octopus Media.[22] The lease was executed on or about 20 January 2015.[23]
   • Nettle Engineering has confirmed to Octopus Media the structural integrity of the existing neon and floodlit sign structure and indicated that the sign was capable of supporting proposed LED lights for a screen of the same dimensions.[24] Further information filed in the proceeding indicates that the existing sign is also consistent with the originally permitted dimensions of 18 m x 4.5 m, with an advertising area of 81 m².
   • As at 12 March 2015, a photograph apparently taken on behalf of Octopus Media shows the face of the sign was still then subject to graffiti and tagging.[25]
   • On 13 February 2015, the Council's enforcement officer wrote to the Owners Corporation stating the Council's position that the sign did not benefit from any planning permit and was in breach of the Melbourne Planning Scheme. The letter required the removal of the sign and its support structure by 13 March 2015.
   • An email chain on the Council enforcement file ENF-2015-29 suggests that the Council letter was forwarded on by the Owners Corporation to Octopus Media. A letter from the solicitors for Octopus Media to the Council dated 21 April 2015 sets out the basis upon which Octopus Media then asserted existing use rights for the sign, but indicates that Octopus Media had not by then acted upon its lease.
   • On 6 August 2015, Octopus Media made application TP-2015-708 for a permit for 'use for an electronic major promotional sky sign'. (The underlining of the word 'use' appears on the application form).
   • On 18 November 2015, Octopus Media provided an amended permit application form, updated to include an application for the minor alteration works proposed for the sign, with the estimated cost of those works indicated as $78,850. A scope of works was included with the application.
   • On 27 January 2016, Octopus Media filed the declaration proceeding at VCAT.
   • On 29 February 2016, Octopus Media filed the review proceeding at VCAT, based upon a failure by the Council to determine the permit application TP-2015-708 within the statutory timeframe.
10. Somewhat surprisingly, there was no direct evidence presented by Octopus Media as to when paid advertising resumed on the sign. From the Tribunal's own view of the sign, the sign has displayed commercial advertising at least since the time of the first hearing in June 2016, with the display changing intermittently since that time. There have been various advertising displays including, for example, for a radio station and a brand of motor vehicle.

1. The first of the declarations sought by Octopus Media pursuant to s 149A of the P&E Act is that an existing use right for the purpose of the display of the sign has been established pursuant to clause 63 of the Melbourne Planning Scheme, and does not contravene the scheme.
2. Octopus Media relies on clause 63.01 to establish existing use rights, either through lawful use commenced in accordance with a permit, or through proof of continuous use under the so-called '15 year rule' in clause 63.11.
3. The proceeding also calls into play s 6(3) of the P&E Act, which provides an over-arching statutory protection for existing uses,[26] and s 6(4) of the P&E Act, which sets out some circumstances where that protection does not apply - e.g. under s 6(4)(a) to use of land which has stopped for a continuous period of two years.
4. The onus generally lies upon the person asserting existing use rights to prove their exception from the unlawfulness of the use that would otherwise exist under the planning scheme, with such proof to be on the balance of probabilities.[27] As a general observation, it might be said that some of the material provided by Octopus Media to satisfy this evidentiary onus was relatively 'thin', and in some cases equivocal. There are a number of unexplained gaps in the chronology, which is problematic proof is required of 'continuous' use. This is in part reflects the fact that the sign had, for most of its existence, been managed or controlled by other sign companies. In any event, the Council did not oppose some relevant inferences being drawn from the limited available material.

1. There has for a time been some debate about whether the display of an advertising sign was a 'development' or 'use' of land, or a combination of both, or something unique and of its own kind for planning regulatory purposes. Traditionally, planning schemes have not included advertising signs in either a table of uses, or in specific provisions applying to buildings and works. The User Guide for planning schemes still states (even after amendments in 2014) that 'Development of land includes ... displaying signs'. Advertising signs are dealt with through quite separate provisions, with their own set of definitions quite separate from land-use terms. Different members of VCAT have expressed different views on the issue.
2. I mention this debate, in part, because a detailed reading of some of the background documents suggests that there may have been differing perceptions on this issue by those involved as applicants or decision-makers in relation to the earlier permits for the advertising sign in this case.
3. In a forward-looking sense, the debate has been largely put to rest in APN Outdoor (Trading) Pty Ltd v Melbourne CC (APN Outdoor),[28] where Cavanough J held that:

'development' includes the construction or putting up of any type of sign where there otherwise may be doubt.[29]

It is clear, in my opinion, that only the original construction or putting up of the sign constitutes development.[30]

... the display of a sign may amount to 'use'; and that existing use rights can therefore accrue in respect of the display of signs, at least in some circumstances.[31]

1. The italics in the last quotation appear in the judgement itself, and the comment is qualified both by use of the word 'may' and by the words 'at least in some circumstances'. Ultimately, having set out some relevant principles, the court remitted the matter in APN Outdoor to VCAT to determine the nature of the use and/or whether existing use rights had accrued on the particular facts and circumstances of that case.
2. I agree with decision in APN Outdoor, and I am in any event bound by it. The erection of an advertising sign structure is a 'development' and the continuing display of the advertising sign is a 'use'.
3. In APN Outdoor, Cavanough J found that the level of activity required to constitute a 'use' of land depends on the purpose to which the land is being put. The concept of 'use' requires only so much physical activity as is necessary to fulfil the purpose being served. His Honour found that the display of an advertisement involves a process, and that the use of a sign could be regulated. Most particularly, after the discussion of a number of authorities, Cavanough J stated:

[65] In this case, the land in question is being applied to the purpose of displaying advertising messages to the public. That is a real and valuable purpose. Although, as submitted by the respondent, there may be little physical activity beyond what is required to put up the advertisements, change them periodically, keep up the illumination (perhaps by replacing burnt out light sources) and maintain the supporting structure, that small amount of activity is sufficient to fulfil the purpose to which the appellant has decided to put the land. The appellant is deriving the full benefit of the purpose to which it has chosen to apply its land. That, in my opinion, may very well be sufficient to establish 'use' within the meaning of s 6(3) of the Act.[32]

1. Here, subject to other relevant considerations, a similar situation prevails.
2. I find on the evidence and background material that I have set out earlier that the land at 500 Flinders Street, or at least part of the land comprising the rooftop stratum, is being used for the purpose of displaying advertising messages to the public or, perhaps more generically, for the purpose of the display of an advertising sign.
3. Land may of course be used for more than one purpose, so it does not matter that much of the land (i.e. the main building above which the sign is erected) is being used for a separate residential purpose.
4. I agree with Octopus Media that, in the context of existing use rights, it is the purpose of the actual use that is relevant, rather than any legal or other use, or any defined land-use term in the planning scheme. This is consistent with long-standing authority,[33] as well as clause 63.02 of the planning scheme. In considering this, the actual use of the land pursuant to a permit during any part of the period of enquiry is also relevant.[34]
5. Here, having regard to the development and use originally permitted, and to the actual use during the 1990s and 2000s, and more recently, I am satisfied that the actual purpose of the use is for the display of an advertising sign.
6. I also agree with Octopus Media that the broad purpose of the use should not be 'read down' by reference to a more detailed descriptor of a particular type of sign, such as an animated sign, internally illuminated sign, or a sky sign etc.. However, the type of sign may be relevant to any condition or restriction to which the use is subject,[35] a matter to which I will return.
7. My reference to 'advertising' messages or an 'advertising' sign in the designated purpose of use is deliberate. It accords with the decision in APN Outdoor, having regard to the quotation above, and several other cases referred to in APN Outdoor or to which I was generally referred by Octopus Media in other contexts. For example, in City of Kensington and Norwood v Claude Neon Ltd,[36] the Supreme Court of South Australia found that land and building thereon had been used, amongst other things, 'for the purpose of advertising' by means of a sky-sign, and held that the land did not cease to be so used by reason only of some change in the format of the sign. In Claude Neon Pty Ltd v City of Prospect,[37] a South Australian tribunal found that land used for a smaller trivision sign instead of for a panel sign was still being used for the same purpose 'namely the use of land for the purpose of advertising'. In Claude Neon Ltd v City of Perth,[38] the Supreme Court of Western Australia held that commercial advertising that advertises businesses other than businesses operating on the land constituted an independent use of that land for such purpose.
8. It follows that I disagree with Octopus Media that the purpose of use in this case should be stated simply to be the use of a sign or the display of a sign, without any reference to advertising.
9. Octopus Media relies for its contention on the principle of liberal construction. It is well established that, in the town planning field, 'statutory provisions designed to protect and preserve existing use rights should be as liberally construed as the language in its context allows': City of Nunawading v Harrington.[39]
10. This principle is undoubtedly correct. However, it is not open-ended. The courts have said that the characterisation of a use is not to be approached too narrowly or prescriptively through a meticulous examination of the details of individual processes or activities. Equally, the courts have been concerned not to categorise the purpose of use so broadly that the land could be used for a prohibited or other purpose that was not a given part of its use at the relevant date. The use is to be described at a level of generality that is necessary and sufficient to broadly cover the activities at the relevant date.[40] Even in Harrington, the purpose of use was stated to be a 'bakery' rather than 'light industry' more generally (or the 'baking of bread' more specifically). In the oft-quoted decision of Shire of Perth v O'Keefe,[41] the purpose of use was stated to be a 'butcher's shop' rather than a 'shop' more generally.
11. Here, a proper application of the 'liberal construction' principle is to characterise the purpose of the use as the display of advertising messages to the public or the display of an advertising sign, and not to characterise the purpose of the use more restrictively by reference to a defined type of advertising sign (e.g. an animated sign or an internally illumated sign). However, it is not necessary or appropriate to characterise the purpose of use simply as a 'display of sign' more generally. That could allow a sign display to be so broadly described that it could be used to authorise a prohibited or other use that was not part of the actual use for the display of advertising. Indeed, the attempt by Octopus Media to have the use characterised very broadly in this case appeared to have more to do with other creative arguments it sought to pursue (e.g. the characterisation of graffiti as a continuing sign display, to avoid an arguable cessation in use) rather than the proper application of principle.
12. On this point, Octopus Media's own documents are also telling. The lease it has purportedly entered into with the Owners Corporation (and which it drafted)[42] refers in the schedule to a sign 'for advertising purposes ...' and in clause 8 to the use of the premises for the display of advertising material.
13. Here, the permitted and actual historical purpose of use of the land was for the display of an advertising sign. The current use is for the purpose of the display of an advertising sign. Octopus Media wants to continue to use the land for the purpose of the display of an advertising sign. The real and substantial purpose of the use is clear.

Can existing use rights apply to the display of a sign?

1. The debate about whether existing use rights could apply to the display of an advertising sign was also largely put to rest in APN Outdoor. I have already referred to the quotation in that judgement, where Cavanough J stated that the display of a sign may amount to a 'use', and that existing use rights can therefore accrue in respect of the display of signs, at least in some circumstances. His Honour also states that had Parliament intended to remove a 'sign' from the protection of s 6(3) of the P&E Act, one would have expected an express provision to that effect.[43]
2. On a fair reading of the judgement in APN Outdoor, it might be said that the decision was primarily about 'use' vs 'development' in the context of an advertising sign. There is very little discussion about existing use rights. The judgement seems to proceed on the logical and common sense basis that, if the display of an advertising sign amounts to a use of land for planning purposes, there is no reason in principle why existing use rights could not then accrue as for any other use.
3. In its supplementary submissions, the Council referred me to an early VCAT decision in Boydell v City of Yarra,[44] where the Tribunal declined to make a declaration for existing use rights for an advertising sign on the basis that the applicant had failed to appreciate a distinction between 'use' and 'display'. The Tribunal considered that existing use rights did not apply to the display of advertising, but that the applicant may be able to assert lawful continuing display rights. The decision in Boydell well precedes the decision in APN Outdoor, and does not represent the current state of the law on this issue.
4. I have proceeded on the basis that existing use rights are at least capable of being established in relation to the advertising sign in this case. As in APN Outdoor, whether any existing use rights are established, and the extent of any continuing existing use rights, is a matter that requires factual investigation.

1. Clause 63.01 of the planning scheme sets out five ways in which an existing use rights may be established. The clause provides:

An existing use right is established in relation to use of land under this scheme if any of the following apply:

• The use was lawfully carried out immediately before the approval date.
• A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.
• A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.
• Proof of continuous use for 15 years is established under Clause 63.11.
• The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.

1. Octopus Media relies only on the second and fourth dot points in clause 63.01, namely commencement under a permit, and the so-called 15 year rule.
2. In either case, it is common ground that, if an existing use right is established, that use right is lost if the use is stopped for a continuous period of two years. I will deal with that issue in a separate part of these reasons. For present purposes, I will deal only with whether an existing use right is initially established under one or other of the grounds referred to above.

1. Octopus Media concentrated its argument on the fourth dot point in clause 63.01 of proof of continuous use under the 15 year rule. It did not advance any material argument in support of the second dot point, other than simply asserting that a permit had been issued for the use of the land for an advertising sign, and that use had lawfully commenced before the permit expired. There was an implicit assumption in this assertion that, save for any issues about the cessation of the use in the period from 2011 to 2015 when the sign did not display advertising, the use right established under the permit had continued from the time of its commencement under the permit.
2. There are two threshold reasons why I do not consider that the ground relied upon by Octopus Media under the second dot point in clause 63.01 even arises in this case.
3. First, by reference to clause 63.01, this ground arises where a permit for the use had been granted immediately before the approval date and the use commences before the permit expires. The wording of the second dot point, particularly when read in the context of clause 63 and the principles of existing use rights as a whole, evinces a quite limited ambit. This ground arises when a permit is granted that authorises a particular use, and there is then some intervening change in the planning controls before the use commences (i.e. as evidenced by an 'approval date' for a relevant amendment) that would otherwise prohibit or restrict the use in some way. The second dot point protects the use right granted through the permit, notwithstanding the intervening change in the planning controls, provided the use subsequently commences in accordance with the permit and before the permit expires. That circumstance does not arise here. There was no intervening event following the grant of permit TP96/324, and before the use commenced under that permit that requires the applicant to seek the benefit of the second dot point to protect the use right.
4. Secondly, where a permit holder has obtained a permit to use land, and continues to use the land lawfully in accordance with that permit, and relies solely on that permit as the basis for its lawful use rights, there is no need to resort to existing use rights at all, and the second dot point in clause 63.01 does not really arise. The use rights reside in the permit, unaffected by any intervening change and planning controls. This issue was recently clarified in Seers v Macedon Ranges SC.[45]
5. Even if I am wrong on this, the second dot point in clause 63.01 requires that the continuing use is lawful. The protection afforded under s 6(3) of the P&E Act also refers to any purpose for which land or a building was 'lawfully being used'. It is only the 15 year rule that allows for the establishment of existing use rights on the basis that the use may not have been lawful for the entire relevant period.
6. Here, Octopus Media has failed to establish on the evidence that the continuing use of the land for the display of advertising was at all times lawful. There are a number of unanswered questions:
   • As I have indicated, although the permit DP88/0006 did not contain an expiry condition, it contained a condition requiring that the sign be maintained to the satisfaction of the responsible authority 'for the duration of the permit' which infers some possibly limited lifespan.
   • Even if permit DP 88/0006 did not limit the lifespan of the use under that permit, that permit was superseded by permit TP96/324. The Council produced in this proceeding the submissions of the applicant, Buckle Outdoor Advertising, in the AAT proceeding that led to the grant of the permit TP96/324. In that material, the applicant supported the imposition of the four-year limitation on use of the replacement sign, and indeed requested that the relevant condition be clarified to reflect its mandatory imposition under clause 7-6.1A of the then state section of the planning scheme. Having taken the benefit of the new permit TP96/324, and erected and displayed a new sign in accordance with that permit, the applicant is bound by its conditions in relation to both the development and use,[46] and can no longer rely on the earlier permit - at least not in support of unrestricted use rights.
   • On Octopus Media's own material, those having the benefit of the permit TP96/324 at all times acknowledged the mandatory time condition in that permit, and took action consistent with the existence of the mandatory time condition. This included reference to the extensions to the permit expiry condition arising through various amendments to the planning scheme. In the chronology, I have referred to two letters. The first is reflected in the VCAT order of 26 September 2007 through which the then applicant acknowledged that the current sign was subject to a permit governed by the mandatory time conditions. The second letter accompanied a later permit application, which conceded that the then current permit TP96/324 expired on 31 December 2008 or until the application was determined (which occurred with the decision in the 2010 VCAT proceeding on 23 March 2010). Octopus Media presented no submission or evidence to establish the lawfulness of the use beyond that date.
7. In reaching a tentative view that the use rights to lawfully display an advertising sign on the land therefore likely expired on or about 23 March 2010, I have not needed to deal with the additional argument proffered by the Council, evidenced in its many letters to Octopus Media and its predecessors over the years, that no lawful display of the advertising sign was ever commenced under permit TP96/324 because the sign purportedly erected and displayed under the permit was not compliant with the terms of the permit or endorsed plans.
8. Octopus Media bears the onus of establishing existing use rights on the balance of probabilities. On this ground relating to the second dot point in clause 63.01, it has failed to do so. Even if this ground applies, contrary to my opinion above, Octopus Media has failed to establish a lawful continuing use beyond 23 March 2010.

1. As I have indicated, Octopus Media relied primarily on the fourth dot point in clause 63.01 to support the establishment of existing use rights - i.e. proof of continuous use for 15 years under clause 63.11 of the planning scheme. An existing use right can be established under clause 63.11 whether or not the use was lawful or compliant with the planning scheme immediately prior to or during the 15 year period. Subject to limited exceptions, the constraint about lawful use does not therefore arise under this ground, provided the use has continued for the same purpose. However, there are a number of constraints to the operation of clause 63.11.
2. Clause 63.11 provides as follows:

If, in relation to an application or proceeding under the Act or this scheme, including an application for a certificate of compliance under Section 97N of the Act, the extent of any existing use right for a period in excess of 15 years is in question, it is sufficient proof of the establishment of the existing use right if the use has been carried out continuously for 15 years prior to the date of the application or proceeding.

An existing use right may be established under this clause even if the use did not comply with the scheme immediately prior to or during the 15 year period, unless either:

• At any time before or after commencement of the 15 year period the use has been held to be unlawful by a decision of a court or tribunal.
• During the 15 year period, the responsible authority has clearly and unambiguously given a written direction for the use to cease by reason of its non-compliance with the scheme.

1. I set out at some length the background to the 15 year rule and its key elements, in Wellington v Surf Coast SC.[47] Both parties relied on that decision, and I do not need to repeat my comments here, save to say that I generally adopt what I said in Wellington insofar as the principles are applicable in this case.
2. I agree with Octopus Media that:
   • This declaration proceeding, which was commenced by application to VCAT on 27 January 2016, is a relevant proceeding that calls the extent of an existing use right into question.
   • The 15 year period relied upon by an applicant can include a period of actual use pursuant to a permit: Mornington Peninsula SC v Anderson.[48] The decision in Seers[49] (referred to earlier in relation to the second dot point in clause 63.01) is not directly relevant to this issue.
   • The 15 year period can include a period when the actual use was unlawful or non-compliant with the planning scheme. Subject to other constraints under clause 63.11, the 15 year period could therefore include the period after 23 March 2010, based on my finding that the applicant has not established a lawful use of the display of the advertising sign after that time.
3. However, despite this, for the reasons that follow, I do not believe that Octopus Media has demonstrated the establishment of existing use rights under the 15 year rule.
4. The use must have been carried out continuously for 15 years 'prior to the date of the application or proceeding'. Octopus Media contended that, given the clause used the term 'prior to' rather than 'immediately prior to' this enabled it to rely upon any 15 year period in the history of the use. There is some historical support for this view in earlier VCAT decisions,[50] but not recently. Octopus Media nonetheless seeks to rely upon the period from 1990 until 2005 to establish its existing use right. The reason for this is presumably to avoid the period in and after 2008 when the Council first took formal steps to attempt to have the use cease.
5. I prefer the construction of clause 63.11 that has been consistently applied in more recent times - i.e. that the relevant 15 year period is fixed as the 15 years immediately prior to the date of the relevant application or proceeding. The Council supported this view in its written submissions, but was more equivocal in oral submissions at the hearing.
6. There are a number of reasons why I consider that this construction is to be preferred, having regard to its regulatory purpose:
   • It provides certainty as to the relevant period of enquiry.
   • As noted in Kraan v Cardinia SC,[51] the purpose of the 15 year rule was largely to avoid the increasingly difficult task of proving the lawful establishment of a nonconforming use that may have commenced many years previously. The rule is one of expediency, to avoid an enquiry beyond 15 years.[52] It would be contrary to the purpose of facilitating a simpler, more recent enquiry if an applicant could choose any period in the history of the use.
   • The use must have been carried out continuously for 15 years prior to the date of the application or proceeding. It would be illogical to allow an applicant to choose any period in the history of the use to establish an existing use right, where there may then be doubt as to whether that use continued from the end of that 15 year period until the present time. Logically, the applicant would still need to prove continuous use through to the date of the application of proceeding in order to rely upon any existing use right established during the earlier period. If the relevant period is simply the 15 year period immediately prior to the date of the relevant application or proceeding, that anomaly does not arise.
   • The 15 year period applies unless, during that period, the responsible authority has given a clear written direction for the non-compliant use to cease. The regulatory purpose of the clause appears to be to give a Council the chance to 'get in first' to seek compliance, but to allow a person to rely on a period of unlawful activity as part of the 15 year period if the Council has not done so. It would thwart the effective use and operation of such a written direction if a person could rely on any 15 year period prior to the written direction (and potentially even prior to the introduction of the 15 year rule), in order to avoid compliance. Given its wording, clause 63.11 is more about facilitating 'sufficient proof' than specifically rewarding historical periods of unlawful activity.
   • Essentially, the construction of clause 63.11 to determine the 15 year period attempts to do no more than give meaning to the words 'prior to'. Although it might be said that this construction implicitly adds the word 'immediately' to the term 'prior to' in clause 63.11, contrary to principles of statutory interpretation about adding words that are not in the provision as part of its interpretation, the alternative construction would do the same by effectively adding the words 'at any time'.
7. As I have indicated, this construction is also consistent with more recent opinion than the older VCAT decisions referred to by Octopus Media. The view that the 15 year period is the period immediately prior to the date of the relevant application is consistent with the decision in Kraan (referred to above), and in Wellington. It is consistent with the decision in Matthews v Bayside CC,[53] a case relied upon by Octopus Media in other respects. I agree with the Council that it is also consistent with the decision in Ackerman v Mornington Peninsula SC.[54] Ackerman was the VCAT decision on remittal from the Supreme Court following the judgement in Mornington Peninsula SC v Anderson (referred to above).[55] Given the relevant dates referred to in Anderson, adopting a 15 year period immediately prior to the relevant enforcement application, it appears that the court also adopted this construction, albeit without direct comment.
8. As was pointed out in Anderson,[56] the enquiry for the purpose of clause 63.11 is really an enquiry of the use between two dates. It follows that the relevant period here is the 15 year period prior to this declaration proceeding which was commenced by application to VCAT on 27 January 2016 - i.e. the period from January 2001 until January 2016. The problem for Octopus Media with this 15 year period is twofold. First, in December 2008, during the 15 year period, there were two letters from the Council that clearly and unambiguously gave written direction for the display of the advertising sign (i.e. the use) to cease and for the structure to be removed. Secondly, the use for the purpose of an advertising sign was not continuous through this period, given that no advertising was displayed during the period from 2011 to 2015.
9. Even if I am wrong about the relevant 15 year period, and an alternative construction of clause 63.11 is preferred, Octopus Media still faces three hurdles:
   • For the purpose of s 6(4) of the P&E Act, any existing use right established through an earlier 15 year period has been lost, as the use stopped for a continuous period of two years. This is a matter I deal with in the next section of these reasons.
   • Octopus Media would still bear the onus, on the balance of probabilities, of proving the continuous use for the same purpose for the 15 year period upon which it relies. On its interpretation, it would still need to prove that the use for the purpose of an advertising sign commenced prior to December 1993 in order that 15 years had elapsed before the Council's first written direction on 4 December 2008. As I have indicated, the evidence that the use commenced in 1990 is equivocal and the evidence of the display of advertising over the next decade is piecemeal. However, I consider there to be sufficient surrounding evidence to support a rebuttable inference that the 'Goldstar' sign was first displayed in or shortly after 1990 and the Council, in fairness, did not materially contend otherwise.
   • Pursuant to clause 63.05, the existing use can continue provided any condition or restriction to which the use was subject continues to be met. This may include a conditional restriction on the type of sign, or the period for which it might be displayed. On Octopus Media's own material, any use rights obtained through the original permit DP88/0006 were essentially superseded by the more restricted use rights under the permit TP96/324. The then permit holder took the benefit of that permit together with its obligations, in order to erect and display the new advertising sign. Octopus Media relies upon this permit either for part of a 15 year period, or for continuous use beyond some earlier 15 year period. This permit included the mandatory expiry condition, which led to the expiry of the right to display the sign at the latest after 23 March 2010.
10. On this latter issue, in Stonnington CC v Southern Property Corporation Pty Ltd,[57] Osborn J had expressed the view, without finally deciding the matter, that a relevant condition or restriction for the purpose of clause 63.05 would likely need to be founded in a permit or planning scheme, rather than merely by reference to activities on the land. Here, the mandatory expiry condition arises in both the permit TP96/324 and in the planning scheme.
11. Moreover, in Anderson (referred to above), Pagone J decided that it was not necessary for him to finally consider whether the unequivocal imposition of an end date on a permit may be effective as a condition or restriction for the purposes of clause 63.05, and how this may interact with the 15 year rule under clause 63.11.[58] Anderson was not an advertising sign case. Given the critical way in which mandatory expiry conditions apply in relation to advertising signs under the state-standard provisions in all planning schemes in Victoria, it is difficult to see why the mandatory expiry condition would not be a relevant condition or restriction for the purpose of clause 63.05. If it were not, a condition in a permit granted for an advertising sign with a mandatory expiry of say 15 or 20 years, or successive permits for a similar period, would be of no effect, as the permit holder could simply rely upon existing use rights after 15 years to negate the effect of the condition. This cannot be what is intended, and it would also have implications for other time-limited uses. Adopting a purposive approach, there is no evident regulatory intent that existing use rights obtained under the 15 year rule are intended to operate in this way. If I am wrong about this, then this is something that the Minister for Planning needs to address.
12. For all of the above reasons, I am of the opinion that Octopus Media has not established existing use rights under the 15 year rule in clause 63.11. This is primarily on the basis that the 15 year period, properly construed, operates from the date immediately prior to the relevant application of proceeding, and the Council here has made a written direction within that period and Octopus Media cannot in any event demonstrate continuous use for that entire period. However, even if (contrary to my opinion) an earlier 15 year period conceivably applies, Octopus Media has not satisfied me on its material that there has been continuous use, or that any conditions or restrictions on the use continue to be met.

1. If, despite everything I have said so far, Octopus Media can establish either an existing use right or permissible right for the purpose of an advertising sign prior to 2011, or any other statutory protection for that use that might be afforded to it under s 6(3) of the P&E Act, that protection does not apply by reference to s 6(4)(a):

... to a use of land which has stopped for a continuous period of two years.

1. By its own admission, Octopus Media concedes that during the period 2011 to 2015, the sign was not used for the display of paid advertising. It nonetheless contends that the protected use did not cease during this period either because:
   • the sign was still being actively used during this period for the purpose of the sign generally, or for the display of graffiti; or
   • there was no intention to abandon the use during this period.
2. I will deal with these in turn.

1. A number of photographs were tendered, including through the affidavit of Michelle Blackburn, indicating that for much of the period 2011 to 2015, the rooftop sign at 500 Flinders Street displayed large-scale graffiti. The affidavit of Robert Halsall, also confirms the existence of graffiti on the sign during this period.
2. Although the Council concedes the existence of graffiti on the sign during much of this period, there is a potential gap in the continuity of 'use' even before the first evidence of graffiti. In the photographs, the graffiti appears on a white background, suggesting that the paid advertising display had already been removed prior to the first graffiti. Octopus Media did not explain this gap, or the period for which it continued.
3. Octopus Media also called as a witness Professor Alison Young from the School of Social and Political Sciences at the University of Melbourne, who gave evidence about contemporary graffiti, the cultural practice of graffiti writing in Melbourne since the 1980s (particularly involving 'tagging' in public spaces), and the distinction (albeit somewhat blurred) between graffiti and street art. Professor Young expressed an opinion that 'tagging' was intended to be a form of self-promotion by a graffiti artist. The inference intended to be drawn from this was that a graffiti artist's self-promotion through his or her tagging on a prominent billboard was a form of self-advertisement, and its display was consistent with the use for the purpose of a sign.
4. Interesting though Professor Young's oral testimony was, I did not find it particularly helpful to the determinative issues in the declaration proceeding.
5. I have earlier indicated that Octopus Media attempted to characterise the purpose of use of the land as the display of a sign generally, rather than the display of an advertising sign. I suspect that was done so as to open up the possibility that the display of graffiti could at least arguably be characterised as the display of a sign. However, consistent with the decision in APN Outdoor, I set out earlier my finding that the land is being used for the purpose of displaying advertising messages to the public (i.e. the purpose expressly mentioned by Cavanough J in APN Outdoor) or, perhaps more generically, for the purpose of the display of an advertising sign.
6. Having regard to the purpose of the use I have ascertained, I do not consider that the display of graffiti (even if a 'use' at all, which is highly debatable) is a use for the same purpose as the display of advertising messages to the public. In my opinion, the ordinary meaning of 'advertising' (having regard to dictionary definitions and the like) does not include graffiti or tagging, and there was nothing in the opinion of Professor Young or the submissions of Octopus Media that persuade me to the contrary. The same outcome would arise if the word 'advertising' were given a non-legal technical meaning having regard to the regular use of the word in the advertising, media and town planning industries.
7. In my view, this is enough to dispose of the 'graffiti' issue at a threshold level. Any use of the land for the display of graffiti is not a use for the purpose of the display of an advertising sign. The use for the purpose of the display of an advertising sign stopped during the period 2011 to 2015, and any existing use rights for that purpose ceased to apply as a result of that stoppage.
8. I will briefly deal with some other matters that also support this conclusion:
   • In APN Outdoor, one of the bases upon which Cavanough J found that the activity of displaying advertising messages to the public was a 'use' at all, was because it was for a real and valuable purpose, and the applicant was deriving the full benefit of that purpose despite the limited physical activity involved in the use.[59] I do not believe that the same could be said of graffiti, or that the applicant derives any benefit from it.
   • Indeed, the financial statements and minutes of the Owners Corporation for the financial years 2012, 2014 and 2015 show that,[60] far from seeing a purpose or benefit in the graffiti, the Owners Corporation were spending money on graffiti removal and/or pursuing an insurance claim in relation to it.
   • Relatedly, although less determinative, I agree with the Council that the Melbourne Planning Scheme treats graffiti quite separately from advertising, with local policies supporting graffiti prevention measures.[61] Moreover, it is difficult to construe graffiti as a form of advertising, when it is considered an illegal activity regulated under the provisions of the Victorian Graffiti Prevention Act 2007.
   • In APN Outdoor, another of the bases upon which Cavanough J found that the activity of displaying advertising messages to the public was a 'use' was that it involved a process in the transmission of a message or information to passers-by, which involved more than passive or aesthetic observation, and intended to influence the behaviour or purchasing choices of the observer.[62] I do not believe the same could be said of graffiti, in the sense of equating graffiti with advertising.
   • I do not agree with the assertion of Octopus Media that the graffiti on the advertising sign at 500 Flinders Street comprised the transmission of a message or specific information to passers-by in the same way as advertising, particularly where Octopus Media submits that the 'message' (if it is to be understood at all) is simply a demonstration of the flaunting of order and authority. Nor do I agree with the assertion of Octopus Media that the graffiti on the sign is consistent with the Council's support for street art, or that it contributes towards that element of Melbourne's reputation as a place for art and culture. Even Professor Young's evidence would not support such a finding.
   • In APN Outdoor, Cavanough J nonetheless expressed an opinion that land upon which large road-side sculptures were erected could be said to be used for the purpose of displaying artwork.[63] Although not too much should be read into this comment, even if the display of artwork could itself be a purpose of use of land, including street art (and perhaps then, by extension, the display of graffiti), it would still be used for a different purpose to the use of the land for the display of an advertising sign.
9. Moreover, there was no direct nexus between Professor Young's opinion about graffiti and tagging, and the use specifically of an advertising sign or billboard for this purpose. Professor Young gave evidence of graffiti in a range of public places, and a sign appears to have no greater significance to a graffiti artist than a wall or a door facing a public space. If graffiti on a vacant billboard constitutes use for the purpose of the display of a sign, or an advertising sign, giving rise to existing use rights for such a purpose, does the existence of graffiti on the wall of a building (or on my garage door, for that matter) also constitute use for the broader purpose of the display of a sign, or an advertising sign. Could valuable existing use rights accrue over time for the display of advertising on a wall or door merely because the wall or door has been used for graffiti that has not been removed for an extended period? I think not. The broader implications of the arguments put by Octopus Media on this issue would lead to absurd outcomes.
10. In my view, the attempt to equate the display of graffiti with the display of advertising to support an argument in this proceeding that the use for the purpose of an advertising sign did not stop between 2011 and 2015 is nothing more than a clever and creative nonsense.

1. The second basis upon which Octopus Media contends that the use did not stop during the period between 2011 and 2015 is based on an argument that, even if the physical use stopped during that time, purpose of the use did not cease because there was no intent to abandon the use. This of course assumes that there was an existing use right established already at that time, contrary to what I have determined earlier.
2. Section 6(4) of the P&E Act refers to the 'use' having stopped for a continuous period of two years, rather than to the purpose of the use. There is an argument that this terminology is intentional, and refers to the physical use having stopped. This would accord with a purposive approach to the legislation to deliver a degree of certainty about when a use has ceased rather than relying upon debates about intention or abandonment, or whether the use has been superseded by another use. I am sympathetic to that view.
3. In relation to a similar (but not identical) NSW provision, in Woollahra MC v Banool Developments Ltd.[64] Mason J confirmed that a liberal construction is preferred in the interpretation of legislative provisions relating to the preservation of existing use rights, but not in a way that exceeds the clear meaning of the legislation. His Honour stated:

No doubt s 309(2) [the relevant NSW provision] is also to be construed liberally, but this injunction is no warrant for failing to give due weight to the natural and ordinary meaning of the words used as influenced by the context in which they are found ... To say that the sub-section permits an existing use to be commenced afresh in the future denies any effective operation to the word 'continuance' at all.

1. Such a view is arguably applicable to the construction of s 6(4) of the P&E Act, in its clear reference to whether a use has stopped for a continuous period of two years.
2. However, in APN Outdoor,[65] Cavanough J referenced the decision in KT Corporation Pty Ltd v Queensland Government Department of Main Roads[66] (a case also separately relied upon by Octopus Media) where a use was held not to have ceased despite legislation providing for cessation within 12 months, because of evidence with an ongoing dispute with the Council that had for a time prevented the use from continuing. The decision in KT Corporation is not directly compatible with the situation here. First, the relevant legislation related to the lapsing of a permit after 12 months if the use established pursuant to the permit had ceased (and thus related more to the purpose of the permitted use), rather than a use more generally having stopped for a continuous period of two years under s 6(4) of the P&E Act in Victoria. Secondly, as will be seen, the evidence here does not point to there being any third-party dispute that wholly prevented the use from continuing.
3. Interestingly, also, when one has regard to the actual decision in KT Corporation, the court made it clear that a person denying that a use had ceased cannot simply rely upon a mere intention to preserve existing rights, and nothing more.[67] The court referred to other cases that indicated that an existing use will not continue indefinitely despite the absence of actual use merely because an owner has an intention to carry on the existing use or to resume it at some time in the future.[68] A delaying factor such as a financial problem or litigation does not necessarily continue the existing use, and the claimed cessation must be looked at objectively. The question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land. Equally, however, the legal character of what is taking place on the land may be affected by the intention of the owner or occupier, or matters such as the continued presence on the premises of equipment or fittings appropriate to the existing use. These are relevant but not decisive factors.
4. Octopus Media also referred to the VCAT decision in Matthews v Bayside CC,[69] where the Tribunal found that an owner had not abandoned his intention to continue a use. However, the continuation in that instance was only marginally beyond the two year period in s 6(4) of the P&E Act, and the evidence was that, but for a delay by the responsible authority in processing the applicant's permit application, he would have been able to undertake works and resume the use within the two-year period. The situation is materially different here.
5. I return then to the evidence and arguments in this case. The hiatus in actual use through the display of commercial advertising on the sign was not just for a short period. It arose over at least four years from 2011 to 2015, albeit that the sign structure remained in place during this period.
6. The contention that there has been no abandonment of the use is based on the affidavit and oral testimony of Robert Halsall. Mr Halsall purchased his first apartment on the land in 2011 (after the previous sign lease had expired and the prior physical use of the sign had stopped). He joined the Owners Corporation committee in 2012, and became its Chairman in 2013. Mr Halsall's evidence is that the use of the sign for the purpose of conventional commercial advertising was thwarted during 2011 to 2015 by ongoing disputes between the then Owners Corporation manager and a number of unit owners. He indicated that this dispute was broad ranging but that, insofar as it related to the advertising sign, there was a dispute as to which company would have the right to operate the sign.
7. In an overall sense, I found the evidence of Mr Halsall on this issue to be somewhat unreliable, and unhelpful. In some cases, he had a selective and self-serving recollection of events, and his evidence was not fully supported by the Owners Corporation documents available at the time he gave evidence, nor the folder of Owners Corporation documents subsequently produced during the hearing under a discovery request from the Council.
8. I accept that the minutes of the Owners Corporation AGM on 18 October 2012 reflect a discussion about presentations from Octopus Media and another sign company, with a majority vote resolving to empower the committee to proceed to negotiate with Octopus Media.[70] There was no AGM held in 2013.[71] The minutes of the Owners Corporation AGM on 20 March 2014 reflect a unanimous (92:0) vote to proceed with a proposal with Octopus Media.[72] Both sets of AGM minutes are otherwise unremarkable, and not reflective of any material dispute on this issue.
9. There is no reference in this material to existing or ongoing use rights. An Owners Corporation report to the unit holders in 2012,[73] which preceded the 2012 AGM, reiterates to owners that in March 2010, VCAT had upheld the Council's decision to refuse to grant a permit for the roof sign. The report then notes that the Owners Corporation manager had secured the interest of three advertising companies, Adspace, IOM, and Octopus Media who were 'interested in pursuing a permit for the sign', and noted that representatives would be attending the AGM to present their proposals.
10. As set out in the chronology, the Owners Corporation ultimately approved a roof sign lease with Octopus Media, which was executed on or about 20 January 2015. On 6 August 2015, Octopus Media first made application TP-2015-708 for a permit for use of a major promotional sky sign, amended on 18 November 2015 to include works proposed for the sign. On 27 January 2016, Octopus Media filed the declaration proceeding at VCAT.
11. Whilst this material, at face value, shows a slow-moving process by the Owners Corporation to pursue a new lease and approval for advertising signage on the land, it does not evidence any clear intent by the Owners Corporation to preserve some existing or ongoing use right that it thought it then held. Indeed, the Owners Corporation had itself been the applicant for a fresh permit in 2010 on the basis that its permissible use rights were then about to expire, and with no suggestion then of existing use rights.
12. Moreover, there is no evidence that the Owners Corporation was being held up by some dispute or third-party issue beyond its control. From other correspondence, the Owners Corporation was well aware of the views of the Council in relation to the existing sign.
13. All of the Owners Corporation actions at the time are quite consistent with the pursuit of a fresh planning approval for a new sign. So too were the actions of Octopus Media. Its proposal to the Owners Corporation was based on a pitch that it had been successful in obtaining planning permits for sites that its competitors had previously failed to achieve.[74]
14. This is also consistent with the lease itself.[75] The lease makes no mention of possible existing use rights. It grants Octopus Media the exclusive occupancy and use of the rooftop premises. It contains a detailed clause 3 about Octopus Media obtaining permits to install or operate the sign, subject to the consent of the Owners Corporation. The lease makes provision for a possible new or replacement sign or sign structure. Interestingly, clause 4 contains an express acknowledgement by the parties that the existing sign belongs to a third party, with a consequential requirement for Octopus Media to obtain the rights to acquire, use or replace the existing structure.
15. For all of the above reasons, I am not satisfied that, even if an intent by the Owners Corporation to not abandon a pre-existing use right is relevant to whether the uses stopped (which is not necessarily the case), then that intent is not satisfactorily established on the objective evidence before me.
16. There is a further issue. At the hearing, I attempted to ascertain who the third party might be that presently owned the sign structure, and whether this was relevant. Mr Halsall was evasive about this and the advocates for Octopus Media (after seeking instructions) indicated that they were unable to assist. I note that the unsuccessful proposal by Adspace in 2012 had contained an acknowledgement that the existing sign was still the property of Buckle Outdoor Advertising Pty Ltd, who had initially erected and managed the sign. Some contemporary photographs of the existing sign still show the Buckle logo on the rear of the sign.
17. From all the surrounding history, it is quite plausible that Buckle (or a successor sign company) still owns the existing sign structure, and simply chose to walk away from the site when its lease rights expired in 2010. If that was the case, it begs the question as to whose intent is relevant to any objective consideration of abandonment. It is quite plausible (indeed likely) that Buckle (or its successor), as the occupier/user until 2010, has objectively abandoned the use for the purpose of the display of advertising on its sign. On this view, evidence about the intent of the Owners Corporation, having leased the space to a third party to occupy and use, is even less relevant.
18. I therefore find that the use for the purpose of the display of an advertising sign stopped during the period 2011 to 2015. By reference to s 6(4) of the P&E Act, any pre-existing use rights in relation to that use that may have been established prior to 2011 ceased after two years, and no longer apply.

1. It follows that, for a number of different reasons I have set out above, Octopus Media has not made out its case for the first declaration that it seeks.
2. In determining the application pursuant to s 149A of the P&E Act, in lieu of the declaration sought by Octopus Media, I will instead determine that:
   • the land at 500 Flinders Street Melbourne does not have the benefit of existing use rights under clause 63 of the Melbourne Planning Scheme in relation to the use or display of an advertising sign; and/or
   • section 6(3) of the Planning and Environment Act 1987 does not apply to the use or display of an advertising sign on the land because any such use has stopped for a continuous period of two years.
3. There is perhaps one further matter worthy of comment. Even if, contrary to everything I have said, Octopus Media had established an existing use right, clause 63.05 of the planning scheme would require that any condition or restriction to which the use was subject must continue to be met. In my view, given the way in which advertising signs are regulated in Victoria, and the way in which existing use rights are commonly applied, that would necessarily mean that the existing use right was limited to the same type of sign and structure as currently exists - e.g. the floodlit major promotion sign in its current dimensions. It would not allow for any type of sign to be erected in its place. A permit for any further works would still be required under clause 63.05. Clause 52.05-6 would arguably require a permit if the advertisement area is to be increased, or if any renewal or replacement of the sign would result in a different type of sign. By reference to the extensive policy matters we will deal with in the review proceeding, and principles that support the phasing out of non-compliant uses over time through the refusal of permits that entrench the use, there is no certainty that Octopus Media would ever obtain such a permit.

1. Through an amendment to its application in the declaration proceeding, Octopus Media also sought a second declaration; namely that there is no statutory basis for the responsible authority to require the removal of the signage structure.
2. Octopus media contends that, even if the permit TP96/324 has now expired, that does not affect the lawfulness of the construction of the sign structure.
3. Section 6(3)(e) of the P&E Act provides that nothing in any planning scheme shall require the removal or alteration of any lawfully constructed building or works. Octopus Media contends that this provision demonstrates that, once something is lawfully constructed, it is presumed to be able to remain. Octopus Media also relies upon APN Outdoor, where Cavanough J stated:

[30] Third, the respondent submitted that existing use rights protect only use, and do not protect the underlying building. Strictly speaking, this may be correct. However s 6(3)(e) provides independent protection against the removal or alteration of any lawfully constructed building or works. Moreover, I take leave to doubt that a planning scheme could validly be amended with the purpose or effect of requiring the building necessary for the continuation of the relevant use be demolished where it has not significantly fallen into disrepair.

1. Finally, Octopus Media relies upon s 62(2)(c) of the P&E Act, which empowers a responsible authority to put a condition on a permit for a specified time, requiring any development to be removed at the end of that time. Here there is no such condition on permit TP96/324.
2. Straightforward though these arguments may seem, the matter is not quite so simple. In particular:
   • As stated earlier in these reasons, the Council has consistently since May 2007 maintained the view that the sign purportedly erected pursuant to permit TP96/324 is unlawful in that it does not accord with the permit or the endorsed plans. The Council reiterated that assertion before me, albeit that neither Octopus Media nor the Council dealt with the matter in evidence. It remains a live issue.
   • The statutory protection in s 6(3) is only to the extent that a planning scheme cannot require the removal of lawful works. There may potentially be other statutory mechanisms through which the Council could seek removal of the existing sign, even arising under non-planning legislation. Moreover, if the Council was ever to bring an enforcement action under s 114 of the P&E Act in relation to the lawfulness of either the existing development or use, VCAT powers are broad.
   • As I have indicated, the question of who actually owns the existing sign remains unresolved. If the sign is still owned by a third party such as Buckle Outdoor Advertising, it would be imprudent to make a declaration about the sign without hearing from that party. It also begs the question as to whether there is utility in granting a declaration in favour of Octopus Media on this issue if it does not own the sign structure.
3. As I have said, the historical or current lawfulness of the sign structure is not a matter that has been tested in evidence in this proceeding. What the parties do next as a result of my decision on the first declaration may also be relevant. I would not wish to pre-empt what might be said in a future permit application or enforcement proceeding.
4. For these reasons, I declined to make the second declaration sought by Octopus Media. It is a matter for another time.

1. The review proceeding has been decided by DP Dwyer and Member Keddie together, and this section of the reasons is provided by both members.
2. As an alternative to its application to establish existing use rights, Octopus Media made an application to the Council for a planning permit. The application initially sought a permit for use for an 'electronic major promotional sky sign'. The accompanying material also indicated that the permit was sought for 'use of the existing sign' for an electronic major promotional sky sign.
3. Octopus Media contended at the time of its permit application for use that the minor installations and replacement of equipment in relation to the existing sign did not involve 'works', or that any works would be in the nature of repairs and routine maintenance or otherwise exempt. However, as a precaution, Octopus Media subsequently amended its permit application to also seek a permit (if required) 'for minor alteration works associated with an electronic major promotional sky sign'. On the last day of hearing, following a direction from the Tribunal, Octopus Media provided a scope of works. Based on this, its advocate was far more equivocal in any ongoing contention that a permit for works was not required, particularly given the effective replacement of the narrow depth floodlit advertising skin with a modern-style electronic sign 'box'.
4. In any event, the Council did not make a decision on the permit application (as amended) within the prescribed time frame, and Octopus Media has made application to VCAT under s 79 of the P&E Act to review that failure.

1. Before dealing separately with the specific 'merits' of the permit applications, we make some general introductory observations.
2. The application is for an electronic major promotional sky sign, subject to the clarification by Octopus Media that it seeks through the permit process to obtain authorisation for a modern-style electronic sign box that is illuminated by way of LED light panels and animated. The further clarification at the hearing is that the 'animation' is not sought so as to facilitate moving video-style images, but simply to allow a 20-second rotational message, rather than the existing single-image floodlit sign, and that the extent of animation could be conditioned in this way. We have assessed the application on this basis.
3. The sign is highly visible to road users approaching the Melbourne CBD through the Crown Casino tunnel at Kings Bridge (Kingsway). VicRoads is a referral authority in relation to the application, but did not participate in the proceeding. VicRoads does not object to the application from a road safety or traffic efficiency perspective, subject to the imposition of conditions on any permit granted.[76] These include a requirement that no advertisement be displayed for less than 20 seconds with an instantaneous transition from one advertisement to another. The sequence of messages cannot give the illusion of continuous movement, or contain a flashing background or images, and must not be capable of being mistaken for traffic signals or messages. VicRoads also proposes standard conditions relating to luminance. Both Octopus Media and the Council were prepared to accept VicRoads' proposed conditions in the event that a permit for the advertising sign display was granted.
4. What is now proposed is similar, but not identical, to the advertising sign refused in the decision of Member Read in the 2010 VCAT proceeding.[77] The main difference between the two proposals is that the advertising sign proposed in 2010 was for a slightly larger version of the existing externally illuminated floodlit panel, whereas the current proposal is for an electronic sign box that is illuminated by way of LED light panels and animated. In material respects, both proposals (as with the existing sign) are for a major promotion sky sign of relatively similar dimensions in the same rooftop space on the land. We agree with Octopus Media that, apart from the 20-second rotational message, rather than the current fixed message, there will be little discernible difference between the existing sign and the current proposal to a pedestrian viewer at Crown Casino or elsewhere on the south bank of the Yarra River, or to a road user on Kings Bridge.
5. Contrary to the contentions of Octopus Media, and consistently with the views of the Council, we consider that the principles of 'repeat appeals' apply in this case. As we have just said, the visual implications of the two proposals (and the existing sign) are virtually the same. Significantly, the Council planning policies in relation to advertising signs in the Yarra environs have not materially changed since the 2010 VCAT proceeding, and no other material change of circumstance (in a planning context) was brought to our attention.
6. Having said that, there is nothing in the principles of 'repeat appeals' that suggests that we should blindly follow an earlier decision for a similar proposal, nor that we should do anything other than properly consider the current application before us on its planning merits. It is just that the earlier decision becomes a relevant matter in that consideration, and one that, in the absence of any material change in the regulatory regime or other circumstances, will likely be accorded great weight in the interests of justice and consistency.
7. That is the situation here. We consider that the decision in the 2010 VCAT proceeding is a matter that should be given appropriate weight. Nonetheless, we have also had regard to earlier Tribunal decisions about signs on the land, albeit that some of those decisions were made under different regulatory controls.
8. As part of its permit application to the Council, Octopus Media had provided the Council with a planning report prepared by Andrew Lanarus of Urbis. The Council provided us with a copy of that report as part of the PNPE2 material. Octopus Media did not refer to or materially rely upon that report at the hearing, and made only a passing reference to it in its written submissions.[78] We have had regard to the Urbis report, but we have not attached great weight to it in the absence of Mr Lanarus being called to give evidence.
9. Somewhat surprisingly, Octopus Media called no expert evidence in the review proceeding. This is certainly not fatal to its cause. However, given the history of this sign and the significant Council planning policies in relation to advertising signs in the Yarra environs, we would have been assisted by tested expert opinion if the grant of a planning permit was to be seriously countenanced.

Consideration of issues regarding application for 'use'

1. We will first consider the planning permit application for the 'use' of the land (or more particularly the rooftop of the building) for the display of an advertising sign.
2. Commercial advertising is a legitimate activity in a free market economy and, despite the views of some, the display of advertising on large-scale billboards is considered an appropriate use of land in many locations. A potential conflict will often arise in that the very prominence that may make a site attractive to an advertiser is the same prominence that has the potential to create a visual or planning impact. Planning schemes seek to deal with this potential conflict through advertising sign controls, and the application of planning policy to guide the exercise of discretion in the location of advertising signs in particular areas.
3. Here, for planning purposes, the land at 500 Flinders Street is within the Capital City Zone (CCZ) under the Melbourne Planning Scheme. Land in the CCZ is not in a specifically nominated category area under clause 52.05 of the planning scheme (i.e. the particular provision dealing specifically with advertising signs), and a permit is required to construct and display a sign in the CCZ unless a schedule to the zone specifies otherwise. The relevant schedule CCZ-1 (relating to land 'Outside the Retail Core') provides no relevant exemptions in this case. Whilst there are also a number of overlay controls that apply to the land under the planning scheme, they are not materially relevant in this proceeding.
4. We do not propose to set out at length the relevant parts of clause 52.05 of the planning scheme or the decision guidelines for advertising signs in clause 52.05-3. Some of the decision guidelines are relatively neutral, or perhaps even slightly positive, in relation to the current proposal. For example, we accept that the proposed sign is not an identification sign. Given the agreement to the VicRoads proposed conditions, the proposed sign is unlikely to have any negative effects on road safety or through inappropriate illumination. Given the height of the building, the sign is unlikely to impact on its immediate streetscape. However, these matters must be counterbalanced against other important decision guidelines - for example, the character of the area including its sensitivity in terms of its proximity to the Yarra River waterway, and the Council's clearly desired character for the area in terms of a city skyline viewed from the river that is largely free from major promotional signage.
5. We also disagree emphatically with the submission by Octopus Media that the zoning of the land at 500 Flinders Street is not 'sensitive' because land in the CCZ is not allocated to a 'category area' of signage for the purpose of clause 52.05. Several of the category areas for advertising signs in planning schemes are in fact specified as being for minimum or low-level restriction - for example, the very first 'Category 1 - Commercial Areas' area in clause 52.05- 7 where many types of signs do not require a planning permit at all. The blanket permit requirement for a permit for an advertising sign in the CCZ therefore actually reflects a higher level of sensitivity than is commonly the case for commercial areas, and the lack of allocation of the CCZ to a specific 'category area' simply reflects the uniqueness of the Melbourne CBD and this zone. Land in the CCZ also has the benefit of the location-specific provisions of the Council's local advertising sign policy in clause 22.07.
6. We also note that apart from the general provisions and decision guidelines for advertising signs, clause 52.05-6 contains specific additional purposes and decision guidelines for major promotion signs. These include the achievement of high-quality visual standards in the siting of major promotion signs, and ensuring that the signs are not detrimental to the appearance of their surroundings through the application of consistent planning controls. In considering a permit application, in addition to a consideration of local planning policy, consideration should also be given to the effect of the sign on significant skylines, and the visual appearance of the sign having regard to a significant view corridor, view line, gateway location or landmark site identified in a framework plan or local policy. As will be seen, the Yarra River environs is clearly identified in local policy in this regard. Moreover, when determining the effect of a proposed major promotion sign, clause 52.05-6 requires certain locational principles to be taken into account, including the discouragement of such signs within open space reserves or corridors and around waterways.
7. As was noted by Member Read in the decision in the 2010 VCAT proceeding, there are a number of relevant State and local planning policies dealing with advertising signage. Some of these have been renumbered or updated since 2010, and the Council referred us to some including clause 21.06 ('Built Environment and Heritage'), which contains strategies to maintain the importance of the Yarra River corridor. However, we agree with Member Read that the clearest set of requirements, which the Council has used to crystallize its more general strategies, is to be found in clause 22.07, which relates specifically to advertising signs in the City of Melbourne.
8. Clause 22.07 applies throughout the municipality. Its policy basis is that a proliferation of signs may detract from the character and amenity of the place and create visual clutter. The policy then sets out some general objectives and general criteria which include, amongst other things, the protection of important vistas. What was highlighted by Member Read in the 2010 VCAT proceeding, and strongly emphasised by the Council in the proceeding before us, is that the policy contains a quite specific locational policy for the 'Yarra River Environs' area,[79] separate from other parts of the Capital City Zone. The locational policy states:

This applies to the Yarra River between Charles Grimes Bridge and Punt Road. The Yarra River and its environs form the landscape and recreational heart of Melbourne and are its greatest natural asset. Being a key tourist area, it is important that new signs add interest to the area's tourism and arts characteristics.

• To enhance the area's attraction for visitors by preserving the visual characteristics and high amenity of public spaces along the Yarra River corridor, the varied and interesting built form and the intensively used promenades.

• Contribute to the important recreational and visual characteristics of the Yarra River corridor.
• Be limited to that required for business identification purposes.
• Be strictly controlled with particular sensitivity to parkland and promenade areas.
• Be unobtrusive and complementary to the scale and character of buildings and landscaped areas.
• Panel, promotion, pole, sky and high wall signs are discouraged on buildings visible within the Yarra River corridor.

1. The Council unashamedly seeks through its planning policy to limit signage in this area to that which is necessary for business identification. It seeks to avoid large-scale billboards and other forms of promotional signs on the Melbourne skyline when viewed from the Yarra River corridor. It seeks to avoid the replacement of major promotion signs when their mandatory expiry conditions run out. It has been relentless and consistent in this planning strategy over many years. The case it ran in the 2010 VCAT proceeding for this land is but one example. As Member Read's decision in the 2010 VCAT proceeding noted, there had already been other cases at that time through which the Council sought to implement its policy.
2. In Central Equity v Melbourne CC,[80] relating to an existing sign of generally similar size promoting AAPT and erected on the roof of the taller building at 472-482 Flinders Street, just to the east of the land here, VCAT had concluded that the sign was not supported by the Council's very specific policy framework within the environs of the Yarra River corridor and at the King Street entrance to the central city. Similarly, in Asia Pacific Hotels Pty Ltd v Melbourne CC,[81] relating to a somewhat similar existing sign promoting NAB and located on top of the building at 342-348 Flinders Street, VCAT noted that, subject to any exceptional circumstances, the proposal was 'swimming against the tide' in terms of the thrust of clause 22.07 in relation to the Yarra River Environs area.
3. In our view, the sign proposed here, with a proposed 20-second rotational message, is likely to be more obtrusive than the AAPT and NAB signs in those cases.
4. There have also been other cases since the 2010 VCAT proceeding. For example, in EyeCorp Pty Ltd v Melbourne CC,[82] VCAT refused two internally illuminated major promotion signs on a 19 story office building at 452-470 Flinders Street, in part on the express basis that it was contrary to the council policy in clause 22.07 for the Yarra River environs.
5. In all of these cases, and in the 2010 VCAT proceeding, the Council refusal was upheld even in the face of expert town planner opinion in each case that the relevant signs would not have a detrimental impact on the skyline. The Council referred us to other similar decisions. Neither the Council nor Octopus Media pointed us towards any recent decision of the Council or VCAT where a major promotion sign has been supported or approved in the Yarra River Environs area despite clause 22.07.
6. Even in 2010, as Member Read then noted in his decision, the Council was having some success with its consistently applied strategy, to the effect that:

[13] ... the fact is that northward views from most parts of the Southbank promenade west of Queens Bridge Street are relatively devoid of major promotion/sky signs into of those that exist will shortly disappear. This is a place that is relatively free of views and major promotion or sky signs.

1. We disagree with Octopus Media that the proposed sign will not impose on the Yarra River corridor, or that there are only limited views of the sign from river promenade areas, or that the sign will not detract from any particular significant or iconic view line. We consider that the view of the Melbourne city skyline from the south bank of the Yarra River is of particular significance, and the proposed sign will be highly visible from many areas along the south bank. This much is apparent from looking at the existing sign from various locations along the Yarra River corridor in both the day and night.
2. Moreover, we do not agree that the proposed sign will integrate physically or visually into the architecture of the building on which it sits, or add in some way to the built form. This is again apparent from looking at the existing sign. We are tempted to agree with Member Read's somewhat acerbic comment in the 2010 VCAT proceeding (in response to expert evidence on this issue), where he said that the sign would not add interest to an otherwise bland host building, as the host building's parapet is already a 'grotesquerie' that should not be drawn further to people's attention.
3. We do not agree with Octopus Media that the sign will be a small element in the overall view within the Yarra River corridor, and will not present any great imposition or be obtrusive. Indeed, an unobtrusive advertising sign is almost self-defeating of its purpose, and the value and interest in this site for an advertising sign atop the building at 500 Flinders Street derives from its prominent location. At a broader level, we do not agree with Octopus Media that the sign will contribute positively to the vibrancy and activity of the Melbourne CBD. There is simply no evidence to support this assertion.
4. Indeed, we agree generally with Member Read where he said:

[20] The issue of whether the existing sign is obtrusive and if not, so what, is a more complex issue. Even a large major promotion sign, set against a backdrop of skyscraper-type buildings, could arguably appear less intrusive or even unobtrusive. However, this gets us into the common planning problem that it can be difficult to demonstrate the disbenefits of a small increment to an intrusive feature that, in large scale, would be widely acknowledged as unacceptable. In this case, Council is seeking to ensure that views along the Yarra River are free from major promotion and sky signs. This section of the River's northern viewshed is close to compliance with Council's policy and it would be wrong, in my view, to compromise this quality in even a small way without a very good reason.[83]

1. Octopus Media cautioned against any assessment of the proposed sign commencing from a negative starting point. We agree. However we disagree with Octopus Media that this should necessarily lead us to a point where we should give little weight to a local policy that seeks to generally discourage certain types of signs in a particular area, or that clause 22.07 is 'too general' to be of assistance to the Tribunal.
2. Octopus Media referred to the decision in Octopus Media Pty Ltd v Monash CC,[84] where it was said that it is an acceptable strategic position for a council to identify where it might encourage or discourage signage (for a variety of reasons), but it is another thing altogether to effectively prohibit a form of advertising that is otherwise acceptable in our community. We do not disagree with that statement, but here we consider that the Council has a clearly articulated strategic basis, from a planning perspective, that underscores its local policy to discourage major promotional signage in the Yarra River Environs area of the Melbourne CBD.
3. Octopus Media also referred us to the observation in iOM Pty Ltd v Greater Dandenong CC,[85] where it was said that a local policy that strongly discourages a proposed sign cannot act as an effective prohibition that wholly determines the outcome or overrides the discretion in the planning scheme. Again, we do not disagree with this statement. However, equally, the fact that a particular use or development might be permissible does not automatically mean that a permit can or should be granted. VCAT is required to have regard to state and local planning policies (and other relevant factors) in the exercise of its discretion. In some cases, the policy imperative will be compelling, as will be its consistent application, albeit that the policy should not be blindly or inflexibly applied.
4. The Tribunal occasionally finds it difficult to apply local planning policy in circumstances where a policy is vague, contains internal contradictions that are difficult to balance, runs contrary to state planning policy, is poorly implemented, or is not applied consistently having regard to political or other considerations. None of those criticisms can be levelled at the Council's advertising sign policy for the Yarra River Environs area in clause 22.07 of the planning scheme. It is clear in its purpose and intent, and the policy has been consistently and effectively applied over many years.
5. This is a case where we consider that the local policy in clause 22.07 of the planning scheme should be given great weight. In balancing this alongside other factors that might be said to support the proposal, we have come to the view that a planning permit should be refused. Indeed, in the absence of any expert evidence, and in light of only very limited submissions by Octopus Media on the 'merits' aspects of the application, we struggle to find any materially redeeming features that might be said to support the proposed advertising sign in this location from a planning perspective.
6. The table to clause 22.07 sets out a number of design requirements for various types of signs, with some additional 'special comments'. The only reference in that table that is of potential relevance in this proceeding relates to sky signs. The 'special comments' for a sky sign state that:

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

• Should not be detrimental to the city skyline, street parapet line or architecture of the supporting or adjacent building.
• Rear of support structure not to detract from views and skylines.
• To be compatible with scale of supporting building/s and streetscape.
• Signs should cover a minor proportion of the supporting building facade.
• Signs should not project above planning scheme height controls

1. The policy is limited to sky signs (albeit that many major promotion signs will also be sky signs, as with the proposal here), and is not location- specific. The special comments at least acknowledge that there may be circumstances where, despite the strongly worded local policy in clause 22.07, a sky sign may be appropriate. Here, Octopus Media contended that the circumstances of this case 'could' be seen to be exceptional within the meaning of this part of the provision. At the hearing, its advocate said that the exceptional circumstances could arise, for example, through:
   • there already being an existing sign structure in place;
   • the location being a gateway site, rather than the sign being a feature in the skyline; and
   • the sign being in the 'least appealing' part of the Yarra River corridor.
2. In the 2010 VCAT proceeding, Member Read expressly stated that he placed no weight whatsoever on the pre-existence of the sign, and it provided no entitlement to continue. We would perhaps take a more tempered view. Even though the advertising sign has been found not to have existing use rights, it was for a period in its history a lawful and permitted use of the land. We consider that the complex history and pre-existence of this sign is at least of some relevance. However, even if the existence of the sign structure does create an unusual or 'exceptional' circumstance here, neither the sign structure nor previous advertising displays are of any particular significance (compared say to a 'Skipping Girl' or 'Nylex' sign). Times change and we are now in an era where there are mandatory expiry conditions for most major signs, and where the continued existence of any major sign will become the subject of review and the fresh exercise of discretion under the regulatory and policy regime then applying. Accordingly, the pre-existence of a sign may be relevant, but it will rarely be a determinative factor as to whether the use should continue. We do not find it a determinative factor here.
3. In addition, since the existing sign was constructed, the Crown Casino complex has been completed, the Melbourne Aquarium has been built, and the Flinders Street overpass has been removed. The Yarra River Environs area under clause 22.07 applies all the way from the Charles Grimes Bridge to Punt Road, and we do not agree that the location of the proposed sign is in the 'least appealing' part of this area. Indeed, part of the basis for Council's discouragement of prominent signage is to make the river environs 'more appealing'.
4. Moreover, for reasons partly set out above, we disagree that the location of the proposed sign here is such that it will not be a feature in the skyline. As Member Read noted in 2010, it is clearly visible from most parts of the Southbank promenade extending well to the east and west of Kingsway. Whilst he accepted (as we do) that the sign is not seen against the skyline from viewpoints close to Kingsway, it is certainly seen against the sky from most views from further east along the promenade.
5. All signs have their own level of uniqueness. However, we do not ultimately find that there are any exceptional circumstances, or sufficient exceptional circumstances, to warrant the approval of the proposed sign here through the limited 'special comments' for sky signs in the table to clause 22.07 in a manner that would override the very specific policy intent in the Yarra River Environs area.
6. Finally, the Council referred us to pictures of the New York skyline when viewed from across the Hudson River, the London skyline when viewed across the Thames River, and the Prague skyline when viewed along the River Vlatava - view lines all now effectively devoid of billboard signage. The Council contended that the strategy and practice of protecting waterways and city skylines from promotional advertising signs, and directing signs to other parts of the city, is not unique to Melbourne.
7. The Council has also made a decision through its planning scheme to implement a long-term strategy to protect the Yarra River corridor as part of Melbourne's major cultural and entertainment precinct, and to protect the Melbourne skyline when viewed along the corridor. It thereby seeks to use local planning policy to discourage major promotion signs and sky signs within the Yarra River environs area, and to limit signage in the environs of the river only to that necessary for business identification purposes. We consider that this is a local policy deserving of weight and support, and we do not see any material planning basis or exceptional circumstances in this case that would warrant the approval of the sign contrary to that policy.
8. Whilst Melbourne may not have a Piccadilly Circus or Times Square where significant signage can be directed and encouraged and perhaps becomes a vibrant and attractive feature in itself, there are certainly other opportunities within the municipality (and in the city generally) for major promotional signage. Major promotional signage already occurs along major thoroughfares such as City Link/Westgate Freeway, and in Kingsway south of the freeway.
9. For all of the above reasons, we are of the opinion that a planning permit to display an advertising sign on the rooftop on the land should be refused. The Council decision in this regard is therefore affirmed.

Consideration of issues re application for 'works'

1. Given we have refused to permit for the 'use', it becomes unnecessary to finally determine the planning permit application insofar as it relates to 'buildings and works'. Having said that, we make the following brief observations as a matter of record.
2. It had been contended during the main hearing that the proposed works were largely in the nature of repairs and refurbishment, and comprised relatively minor works that would not require a planning permit for 'buildings and works'.
3. On the final day of the hearing, Octopus Media provided us a scope of works and some photographs, and we were shown a section of the LED lighting panels intended to be used. Whilst we agree that some of the works are relatively minor when considered in isolation (e.g. upgrading and replacement of the electricity box, or the installation of new computer equipment), the overall proposal is to replace the thin front advertising skin of the current floodlit sign with a new modern-style electronic sign 'box' of increased depth, and fronted with sheets of the LED lighting panels. To all intents and purposes, there will be a new advertising sign constructed on a pre-existing base structure. We consider that this would amount to 'works' requiring a planning permit.
4. Had the land been found to have existing use rights for the display of an advertising sign, there may have been a question as to whether it was appropriate to grant a permit for the works (pursuant to clause 63.05) in a manner that might be seen to entrench a non-compliant use. We do not now need to decide that question.
5. As a matter of general 'merits' however, as we have earlier indicated, apart from the 20-second rotational message (rather than the current fixed message) there will be little discernible difference between the existing sign and the current proposal to a pedestrian viewer at Crown Casino or elsewhere on the south bank of the Yarra River, or to a road user on Kings Bridge. VicRoads does not object to the 20-second rotational message as a matter of traffic safety, subject to a number of conditions. Accordingly, had we be minded to grant a permit for 'use', it is unlikely that we would have had significant concerns about the 'works' aspects of the proposal.
6. However, given the refusal of the application insofar as it relates to 'use', the application for works is also consequentially refused.

1. It follows that the decision of the responsible authority (i.e. the Council) is affirmed. In permit application TP-2015-708, a permit must not be granted.

[1] We have considered the submissions of the parties, together with all of the written and oral evidence and other material tendered by the parties. We do not recite or refer to all of the contents of those documents or evidence in these reasons.

[2] This second declaration was sought as a result of an amendment to the original application, requested at the hearing. The Council did not oppose the amendment of the s 149A application, but opposed the substance of the declaration sought.

[3] Appeal No. 74/983, 4 October 1974, Chairman F H Lonie and Members Read and Vaughan.

[5] Decision P88/0641, 14 October 1988, Member Elms.

[6] The affidavit of Kevin Burke, an apartment owner at 500 Flinders Street, suggests that the 'GoldStar' sign was in existence in January 1990, but this is before the amended permit and endorsed plan. The affidavit of Michelle Blackburn, based on research of old photographs of the Melbourne skyline, suggests that the 'GoldStar' sign was in existence before 1998-99. In Buckle v Melbourne CC [1997] VICCAT 73, the then AAT noted that the sign had been in existence since 1990, but this finding appears to be based on the applicant's submissions.

[7] For example, under clause 7-6.1A of the State Section of old-format planning schemes from 1996, and under clause 52.05 of VPP-based planning schemes since 1996 (and particularly following Amendments VC5 and VC 7 in 1999 and other amendments since that time). These provisions were not in force when permit DP 88/0006 was issued or amended.

[8] Buckle v Melbourne CC [1997] VICCAT 73, Member Buckley.

[9] Exhibit MB-3 to the affidavit of Michelle Blackburn. The photograph was downloaded from a website report of the outbreak of legionnaires disease at the Melbourne aquarium in 2000, with a photograph of the aquarium showing the 'LG Electronics' sign in the background. The website report however contains other entries in April/May 2002, and there is no direct evidence as to when the photograph was taken.

[10] Affidavit of Shelley Ornsby. Ms Ornsby was an apartment owner, and also worked opposite at Crown Casino. Her 2015 affidavit had been provided by Octopus Media to the Council and was included in the Council's PNPE2 material. It was referred to by the Council in submissions, but was not expressly relied upon by Octopus Media.

[11] A Council officer report on 24 May 2007 (in relation to a later application TP-2007-270 to extend the expiry date for the sign approved in permit TP96/324) states that it is not known how long the sign has been displayed on the site.

[12] Exhibits to the affidavit of Michelle Blackburn.

[14] VCAT proceeding P1116/2009, lodged on 30 April 2009.

[15] Unreported, VCAT No. P1116/2009, Member Read. The decision was initially dated 18 February 2010, but the date of the decision was changed to 23 March 2010 through a correction order on 8 April 2010.

[16] Affidavits of Shelly Ornsby and (in part) Michelle Blackburn.

[17] Affidavit of Shelly Ornsby at [18] and [20].

[18] Exhibits SO-3 and SO-4 to the affidavit of Shelly Ornsby.

[19] Folder of Owners Corporation documents filed by Octopus Media during hearing, under a discovery request from the Council.

[20] Affidavit and oral testimony of Robert Halsall, Chairman of the Owners Corporation.

[21] Affidavits of Shelly Ornsby and Michelle Blackburn.

[22] Folder of Owners Corporation documents.

[23] The Council refers to an affidavit of Nir Haddad of Octopus Media for this fact, but the affidavit does not appear on the Tribunal file. An undated copy of a lease, executed by Mr Haddad but not by the Owners Corporation, appears in the folder of Owners Corporation documents at Tab 11.

[24] Folder of Owners Corporation documents.

[25] Exhibit MB-22 to the affidavit of Michelle Blackburn.

[26] Albeit 'lawful' uses, thereby excluding existing use under the 15 year rule where part of the use relied upon was unlawful or non-compliant. This will be dealt with later in the reasons.

[27] E.g. Clare v Jeff's Bulk Appliances Pty Ltd [1981] VicRp 72; [1981] VR 758, referred to in City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 645; Wellington v Surf Coast SC (Red Dot) [2011] VCAT 2317 at [41].

[28] [2012] VSC 8, Cavanough J.

[29] At [45], having regard to sub-section (f) in the definition of 'development' in s 3 of the P&E Act.

[33] For example Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535 (Kitto J); Stonnington CC v Southern Property Corporation Pty Ltd [2006] VSC 435 (Osborn J).

[34] Mornington Peninsula SC v Anderson [2009] VSC 301, [11] (Pagone J).

[35] For example, having regard to clause 63.05 of the planning scheme.

[36] (1979) 22 SASR 91, 99 (Jacobs J)

[37] [1984] 12 APAD 470, 474 (Judge Ward with Commissioners Tomkinson and Hunt).

[38] Unreported, Supreme Court of Western Australia, (Kennedy J) 31 July 1987, referred to in APN Outdoor at [72].

[39] [1985] VicRp 64; [1985] VR 641, 644 (Kaye, McGarvie & Marks JJ) and the cases cited therein.

[40] See also, Wellington v Surf Coast SC (Red Dot) [2011] VCAT 2317, [120].

[41] [1964] HCA 37; (1964) 110 CLR 529 (Kitto J).

[42] Tab 11 in the folder of Owners Corporation documents produced at the hearing.

[43] [2012] VSC 8, [49] (Cavanough J).

[44] [1997] VICCAT 672 (Byard DP (as he then was) and Member Marsden).

[45] (Red Dot) [2016] VCAT 1198 (Gibson DP). That is not to say that an applicant cannot rely upon actual use under a permit as part of a 15 year period to establish existing use rights under clause 63.11 (Mornington Peninsula SC v Anderson [2009] VSC 301, [11] (Pagone J)), but this is not relevant to the establishment of existing use rights under the second dot point in clause 63.01.

[46] For example, following the principle in Benedetti v Moonee Valley CC [2005] VSC 434 (Osborn J).

[47] (Red Dot) [2011] VCAT 2317 (Dwyer DP).

[48] [2009] VSC 301, [11] (Pagone J).

[49] Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198, (Gibson DP).

[50] For example, Port Phillip CC v Beckman (2003) 14 VPR 190 (Member Komesaroff); Gyurcsik v Greater Dandenong CC [2001] VCAT 1520 (Member Moles).

[51] [2006] VCAT 1629, [30]-[33] (Gibson DP).

[52] Kraan at [30]-[33]; Wellington at [108].

[53] [2013] VCAT 1262, [16] (Senior Member Rickards).

[54] [2010] VCAT 911 (Gibson DP).

[55] [2009] VSC 301, [11] (Pagone J).

[57] [2006] VSC 435 (Osborn J).

[58] Mornington Peninsula SC v Anderson [2009] VSC 301, [12] (Pagone J).

[60] Folder of Owners Corporation documents filed by Octopus Media during hearing.

[61] For example, clause 21.06-2 supports the use of materials resistant to vandalism and graffiti, subject to them being respectful of the preferred built form character. Clause 22.01 also encourages the use of graffiti proofing measures.

[64] [1973] HCA 65; (1973) 129 CLR 138, 144 (Mason J), referenced in KT Corporation (cited below) at [17].

[65] [2012] VSC 8, [71]-[72] (Cavanough J).

[66] [2005] QPELR 28, Queensland Planning and Environment Court (Wilson DCJ).

[67] [2005] QPELR 28, [17]-[20] and the cases cited therein.

[68] For example, Hudak v Waverley MC (1980) 18 NSWLR 709; Leeming v Port Adelaide CC (1987) 62 LGRA 296.

[69] [2013] VCAT 1262 (Senior Member Rickards).

[71] According to the folder of Owners Corporation documents produced at the hearing, there was a special general meeting held on 6 March 2013. A vote to terminate the contract of the then Owners Corporation managers was unsuccessful, and a subsequent vote to extend the contract was approved by majority vote. There is no reference in the minutes of this meeting to the rooftop advertising sign.

[73] Tab 1 in the folder of Owners Corporation documents produced at the hearing. The document is undated, but it was common ground that the document itself (and the surrounding evidence) made it clear that the report was produced in or after July 2012 in readiness for the 2012 AGM.

[74] Tab 2 in the folder of Owners Corporation documents.

[75] Tab 11 in the folder of Owners Corporation documents.

[76] Letter from VicRoads to VCAT dated 20 May 2016, as amended on 26 May 2016.

[77] Owners Corporation RP 5395 v Melbourne City Council, unreported, VCAT No. P1116/2009 (Member Read).

[78] Paragraph 17 of the applicant's outline of submissions does not refer to the Urbis report as part of the material upon which it relies. At paragraph 279, the applicant relies on the Urbis report for the proposition that the proposal supports the increasing modernisation of signage in the digital age, and the updating of the current display on the existing sign will achieve an improved visual outcome.

[79] In 2010, the Owners Corporation had attempted (unsuccessfully) to argue that the land at 500 Flinders Street was not within this area. Octopus Media did not re-agitate that issue in this proceeding, and conceded that the land was within the Yarra River Environs area for the purpose of clause 22.07.

[80] [2009] VCAT 2075, [14] (Member Hewet, as then he was).

[81] [2009] VCAT 2492, [65] (Member Martin).

[82] [2011] VCAT 311 (Member Moles).

[83] Owners Corporation RP 5395 v Melbourne City Council, unreported, VCAT No. P1116/2009 at [20] (Member Read).

[84] [2012] VCAT 1700 at [22]- [25] (Member Nelthorpe).

[85] [2014] VCAT 709 at [26] (Member Davies).