1. With respect of Permit Application No. 1463/2006 and Review P614/2007, the decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.
2. Costs reserved.

Mr. Jeremy Gobbo, QC and Mr. Jason Kane, Barrister, instructed by Amanda Johns LLB. He called Mr. Richard Umbers and Peter Lovell to give town planning and heritage evidence.

Ms. Tania Cincotta, Solicitor, Best Hooper Lawyers. She called Mr. David Islip, Heritage Adviser, to give evidence.

1. This is a review under Section 79 of the Planning and Environment Act 1987 against Council's failure to grant a permit for a major promotion sign at 114 Carlisle Street, St. Kilda. Were it in a position to determine the application, Council would have issued a notice of refusal on the following grounds:
   1. The proposal is contrary to the provisions of the City of Port Phillip's Outdoor Advertising Policy.
   2. The proposal is contrary to the provisions of Clause 52.05 of the Planning Scheme.
   3. The proposal is contrary to the heritage character of the host building, the character of the wider area and would be contrary to the Heritage Overlay provisions of the planning scheme.

4. The proposal was not accompanied by the land owner's consent.

1. This review came before the Tribunal on 25 September 2007 and 17 December 2007.
2. On the 25 September 2007 hearing, the review applicant's counsel requested the hearing to be adjourned on the issue of owner's consent: whether Council's consent as owner of air rights is required, and for the matter to be addressed by a legal member of the Tribunal. Mr. Dreyfus, on behalf of the review applicant t the time, also applied for cost.
3. The proposed sign is to be attached to the building at 114 Carlisle Street, the owner of which has provided consent for the application. However, most of the sign, contained in a box, hangs over a Council owned property. At that hearing, Council indicated that it will not give consent over its air rights.
4. The matter came before the Tribunal again on 17 December 2007, constituted of this member and a legal member in Mr. Phillip Martin.
5. At that hearing, the Tribunal heard submissions from Mr. Gobbo on behalf of the review applicant, and from Ms. Marcus on behalf of Council. On 20 February 2008, it issued an order:
   • That dismissed Council's application under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for a summary dismissal of the proceeding;
   • Reserved the costs of the 25 September 2007 and 17 December 2007 hearings; and
   • The planning merits of the proposal to be heard on 4 April 2008.
6. This order is the result of the planning merits hearing.

1. The review site is located at the north-east corner of Carlisle Street and Brighton Road, St. Kilda. It is developed with a two storey commercial building constructed in the 1920's. The ground floor is used as a bicycle shop. The use of the first floor is not known.
2. The principal façade of the building faces Carlisle Street. The western elevation is the wall the proposed sign is to be attached. This wall is mostly a blank wall with windows and door openings. There are signs that there was once a panel sign on this elevation.
3. Abutting the site to the west is a small strip of land probably remnant after the widening of St. Kilda Road/Brighton Road in Council's ownership. To the east of the site is the start of the Carlisle Street commercial area, comprising of single and two storey commercial buildings used as shops, service businesses such as car parts and accessories, eateries, the municipal library, a supermarket and other businesses. Diagonally opposite the site is the St. Kilda Town Hall with a modern annex set in a spacious landscaped forecourt at the corner of Carlisle Street and Brighton Road.
4. The St. Kilda Road and Carlisle Street intersection is a wide and busy intersection controlled by traffic signals.

1. The proposal is to erect an animated, internally illuminated major promotion sign on the western wall of the building. It measures 5.3 x 4 metres, with an overall area of 21.5 sq m and an advertising face of 19.7 sq m. It is 3.2 metres above the ground level. It would project 800 mm over the title boundary. Mr. Lovell's recommendation is to reduce the size of the sign marginally and this projection was reduced to 600 mm.
2. The sign is proposed to operate 24 hours 7 days a week with an automatic night mode that would reduce the light output between dusk and dawn. It is to contain moving graphic images using an LED screen.

1. The review site is in the Business 2 Zone of the Port Phillip Planning Scheme ('the Scheme'). The purpose of this zone is to encourage office and associated commercial development. Pursuant to Clause 34.02-6, advertising signs are in Category 2 of advertising controls under Clause 52.05. Needless to say, the provisions of Clause 52.05 (Advertising Signs) apply.
2. Under Category 2 of advertising control of Clause 52.05-7 (for office and industrial areas and signs to be of low limitation), a permit is required for the proposed sign.
3. The purpose of signage in this category is:

To provide for adequate identification signs and signs that is appropriate to office and industrial areas.

1. Pursuant to Clause 52.05-1, the application was referred to VicRoads. This road authority initially objected to the proposal[1] but later offered no objection subject to its standard conditions[2]. The provisions of Clause 52.05 will be examined further in these reasons.
2. The site is affected the Heritage Overlay (HO7- St. Kilda, Balaclava, Ripponlea). This overlay commences from the review site and covers both sides of Brighton Road south of Carlisle Street and all the properties to the north and east. The St. Kilda Town Hall and its foreground is covered by a separate Heritage Overlay in Schedule 63 (St. Kilda Town Hall). Under the heritage overlay, a permit is required to construct or display a sign.
3. Other relevant provisions and policies of the Scheme are Clauses 11, 12.05 (A Great Place to be), 15.11 (Heritage), 19.03 (Urban Design and Built Form), 21.05-3 (Neighbourhood Character), 21.05-4 (Urban Design), 21.05-5 (Heritage Conservation), 22.04 (Heritage Policy), 22.08 (Outdoor Advertising Policy) and 65.

1. At the hearing, parties spoke to written submissions. The witnesses called to give evidence were made available for cross-examination.
2. At the conclusion of the hearing. Mr. Gobbo requested the Tribunal to state in the order 'costs reserved'.
3. Decision was reserved. The Tribunal indicated that it would inspect the site during daytime and night time, and that it would inspect another similar sign already constructed in Melbourne.

1. Having considered the submissions, evidence, the provisions of the Scheme and its inspection of the site surrounding area during daylight and night time, and a similar sign located at the St. Kilda Junction, the Tribunal is not persuaded by Mr. Lovell's evidence that the proposed sign will not have an unacceptable impact on the heritage significance of the area. It is also not persuaded by Mr. Umber's opinion that the proposed sign is an appropriate response to the objectives and decision guidelines for advertising signs pursuant to Clause 52.05 or the relevant policies for advertising signs in the Scheme.

Clause 52.05 and Advertising Signs Related Policies

1. The site is in the Business 2 Zone of the Scheme. The category of advertising controls for this zone is Category 2 under Clause 52.05. This category is for office and industrial areas where a low limitation of controls applies. The purpose of this category is

To provide for adequate identification signs and signs that are appropriate to office and industrial areas.

1. Further, this clause provided decision guidelines for major promotion signs.
2. Clause 52.05-5 states the purpose of major promotion sign as:

To achieve high quality visual standards for the siting of major promotion signs.

To ensure that the signs are not detrimental to the appearance of their surroundings or the safe and efficient operation of the route through the application of consistent planning controls.

1. In deciding on an application, in addition to the decision guidelines of Clause 52.05-2 and 65, the responsible authority must consider, for major promotion sign:
   • The effect of the proposed major promotion sign on:
     • Significant streetscapes, buildings and skylines.
     • The visual appearance of a significant view corridor, viewline, gateway location or landmark site identified in a framework plan or local policy.
     • Residential areas and heritage places.
     • Open Space and waterways.

When determining the effect of a proposed major promotion sign, the following location or principles must be taken into account:

• Major promotion signs are encouraged in commercial and industrial locations in a manner which complements or enhances the character of the area.
• Major promotion signs are discouraged along forest and tourist roads, scenic routes or landscaped sections of freeways.
• Major promotion signs are discouraged within open space reserves or corridors and around waterways.
• Major promotion signs are discouraged where they will form a dominant visual element from residential areas, within a heritage place or where they will obstruct significant viewlines.
• In areas with a strong built form character major promotion signs are encourage only where they are not a dominant element in the streetscape and except for transparent feature signs (such as neon signs) are discouraged from being erected on the roof of a building.

1. With regard to detailed policies, the relevant ones are Clauses 19.08 and particularly 22.08, Port Phillip's local policy for advertising signs.
2. The objectives of Clause 22.08 are:
   • To ensure that commercial businesses are able to display sufficient signage to adequately identify their premises and promote the business, the goods they well or the services they offer.
   • To ensure that signs achieve maximum effectiveness without being excessive in their size, number or appearance.
   • To ensure that the architectural qualities and features of buildings are not obscured by signage.
   • To ensure that the size, position and amount of signage adds to the vitality and interest of the urban environment.
   • To protect the visual amenity of the locality by avoiding visual disorder and clutter.
   • To ensure that the outdoor advertising does not cause loss of amenity or have a detrimental effect on the natural or built environment or the safety, appearance or efficiency of any public place.
3. It is policy under this clause, where relevant:

• Signage should not dominate the building to which it is fixed or the property on which it is sited.
• Signage should not project above the skyline or profile of a building.
• Signage should not obscure architectural features and detailing, windows and door openings or verandahs, particularly on buildings of identified heritage significance or in Heritage overlay areas.
• Signage should not interfere with the function of traffic signals and necessary control and directional signage.

• Except in Heritage Overlay areas, signage may be erected in the locations shown on Diagram 1 provided that no more than two above verandah signs are erected.
• Signage should not be erected in the locations shown in Diagram 2.
• In Heritage Overlay areas, signage may be erected in the locations shown in Diagram 3 provided that no more than one above verandah sign may be erected except in buildings listed on the Victorian Heritage Register in the Emerald Hill precinct, South Melbourne where no above verandah signage should be permitted.

1. Diagram 3 of this policy shows the appropriate location on a wall, provided the sign is "related to the form and proportion of the building".
2. The decision guidelines for assessing signage are:
   • Whether the signage will detract from the architectural style and/or heritage significance of a building or area.
   • Whether the existing signage on a building or site is adequate.
   • The character of the local environment including the location of any other signs and the need to avoid visual clutter.
   • The need to ensure that there is an equitable distribution of signage between premises in commercial precincts to avoid visual dominance of one business over another.
   • The need to avoid conflict with traffic signals and other necessary control and directional signs.
3. Mr. Islip's evidence focussed on the impact of the sign on the heritage significance of the host building, whilst Mr. Lovell is of the view that the proposed sign will have negligible impact on this significance.
4. Mr. Umber's opinion is that the proposed sign will enjoy excellent exposure to the east bound views along Carlisle Street and for north bound traffic along Brighton Road/St. Kilda Road. To him the sign:
   • will not result in a change to the skyline above the host building and adjacent buildings;
   • will not block or intrude on a view or vista to any significant landscape or structure,
   • will not dominate the building as impact is confined to the west facing wall of the building, and as the sign will not protrude above the parapet, or extend beyond the south elevation facing Carlisle Street.
   • His assessment is that the total area of the sign amounts to 16% of the wall, which will not dominate the building nor interfere with view of the St. Kilda Town Hall.
5. His calculation of the surface area of the sign is 16% of the wall. As such, he does not think the sign is dominant of the host building or St. Kilda Town Hall. Further, he considers the western elevation of the building as unattractive and typical of a building waiting for another building to be constructed next door. It is also his view that the sign will not be out of character with the area or have an unreasonable effect on the visual amenity of St. Kilda Road/Brighton Road. Instead, he considers the sign, although quite visible, will enhance the visual appearance of the intersection and host building as well as not at odds with the objectives of Clause 22.08.
6. The Tribunal inspected the site on three occasions, one during the day and two late evenings, one on a weekend around 8:30pm and another during a weekday at 9:00pm. It also inspected a similar existing sign at St. Kilda Junction.
7. Being informed by these inspections and having regard to the guidelines for major promotion sign in Clause 52.05 and Clause 22.08, the Tribunal does not share Mr. Umber's positive assessment of the proposed sign.
8. Instead, the Tribunal finds the proposed sign a dominant feature at the entrance to the Carlisle Street commercial precinct, and not one that is encouraged by both Clause 52.05 and 22.08.
9. Mr. Umber's view is that the proportion of the sign is comparatively small to the surface area of the western elevation of the building. His calculation of the surface area of the sign is 16% of the wall.
10. However, this 16% is located at the top right hand corner of the wall and occupies the most prominent and visually unobstructed part of the wall. The balance of the 84% of the wall is mostly on the ground level or obscured by the row of Eucalypt trees in the Council owned land abutting St. Kilda Road.
11. The 16% of the wall occupied by the sign is 5.32 m x 4 m on the first floor level and most exposed to the intersection. It is the most prominent spot on the building when viewed from west and north. With the sign being internally illuminated and animated, the Tribunal forms the view that the sign will be the dominant visual feature of the building, this part of the streetscape and the intersection.
12. It will dominate the entrance to the Carlisle Street commercial area east of St. Kilda Road from the west, an area that is a mixture of commercial, service and civic uses, and detract from the iconic St. Kilda Town Hall and its setting.
13. Particularly at night, when the Carlisle Street commercial area is inactive and the town hall lit up, the proposed sign, because of its prominent location and position forward of the Town Hall building, will be the dominant feature of the area. The Tribunal finds that it will impact negatively on the visual amenity of the area and the town hall and its setting. Instead of adding colour and vitality to this commercial area, the sign stands out as the 'entrance face' to the commercial area, one that bears no relationship to the character or feel of the area. To the Tribunal, it is not one that complements or enhances the character of the area, or one that is encouraged or should be approved under Clause 55.02 and 22.08.

1. The site is affected by the Heritage Overlay (HO7- St. Kilda, Balaclava, Ripponlea). This overlay commences from the review site and covers both sides of Brighton Road south of Carlisle Street and all the properties to the north and east. A permit is required for the proposed sign under this overlay, and the decision guidelines of Clause 43.01-4 apply. The St. Kilda Town Hall diagonally opposite the site is covered by a separate Heritage Overlay in Schedule 63 (St. Kilda Town Hall).
2. In deciding on an application, Clause 43.01-4 requires the responsible authority to consider whether a sign will adversely affect the significance, character or appearance of the heritage place.
3. Mr. Islip's evidence is that the proposed sign will be detrimental to the heritage significance of the host building, a building identified as 'Significant' in the Port Phillip Heritage Policy Map. To him, the abutting property to the east is also a significant building. He pointed out that the policy of Clause 22.08 specifically discourages illuminated and animated signs.
4. His view is that the sign will be highly visible at this major civic intersection from the west, south-west, south and north-west. Further, it will dominate the western elevation and detract from the architectural integrity of this significant graded art deco building, and detract from the broader heritage overlay, given this is a gateway to the architecturally and historically noteworthy public buildings that form this prominent island site.
5. However, Mr. Lovell's opinion disagrees with this view. Mr. Lovell's view is that the dominant elevation of the Host building is its principal facade facing Carlisle Street and not the side elevation on which the sign is attached. His view is also that the sign will attract attention to the location but not in such a way as to diminish or detract from the architectural integrity of the host building. To him, the sign will have no adverse impact on the heritage significance of this building or adjacent or nearby-by heritage buildings. He pointed out that HO7 in which the site is located is a diverse area, with the site located at the edge of a somewhat fragmented heritage area. His view is that the proposed sign will add to the existing visual diversity but will not have any adverse heritage impact.
6. The Tribunal agrees with Mr. Lovell that the front façade of the host building facing Carlisle Street is the principal heritage elevation of the building, and that the western elevation on which the proposed sign is attached is somewhat bland and compromised by the previous sign. It accepts his opinion that the proposed sign on the side elevation would not detract significantly the principal façade of the building.
7. Notwithstanding the limited impact of the sign on the elevation of the host building which is not the principal façade, the Tribunal finds that it will have a major impact on the heritage significance of the St. Kilda Town Hall and its foreground. This is particularly pronounced at night when the town hall building is lit.
8. In the Tribunal's view, the proposed sign, due to its size, prominent location, being internally illuminated and animated and sitting forward of the town hall building and its foreground, will be detrimental to the heritage significance and character of the Town Hall building and its setting when viewed from the west, and to a lesser extent from the northern and southern approaches of St. Kilda Road/Brighton Road. It is not a sign that is an appropriate response to Clause 43.01-4, 22.04 and the heritage consideration of 22.08.
9. It is not a proposal warranting support in terms of heritage consideration.

1. The Tribunal finds the proposed major promotion sign inconsistent with the objectives and guidelines for major promotion sign under Clause 52.05 and the relevant local policies for advertising signs, and inconsistent with the heritage objectives for the area.

[1] VicRoads letter dated 14 February 2007

[2] VicRoads letter dated 24 September 2007.