IDENTIFICATION OF THE SIGNS THE SUBJECT OF THE APPLICATION

1. A matter that required clarification at the commencement of the hearing was identification of the signs that were the subject of the application.
2. After some discussion, the applicant provided the necessary clarification and an amendment was made to the application as follows:[3]

Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the application under section 149A of the Planning and Environment Act 1987 (Vic) is amended to:

(a) amend the signs the subject of the application as being signs M1 to M6 on Drawing No. SK02 of Attachment 3 to the relevant authority's written submission (appearing at page 157 of the Tribunal Book) and signs F1, F4 and F5 on Drawing No. SK03 of Attachment 3 to the relevant authority's written submission (appearing at page 158 of the Tribunal Book); and

(b) amend the time period of continuous use for sign F4 to alternatively be from November 2007 to November 2022.

1. Drawing No. SK02 showing the location of signs M1 - M6 is set out below.[4] These signs all face Market Street.
2. Signs M1- M4 are all signs which are affixed to the windows shown from the inside of the building. These signs are internally illuminated.
3. Sign M5 comprises multiple signs displayed on an electronic monitor located within Holyman House on the ground floor (referred to as an 'electronic sign').
4. Sign M6 is affixed to the awning on the building facing Market Street.
5. Drawing No. SK03 showing the location of Signs F1-F5 is set out below (noting that the application does not include Signs F2 or F3.[5] All these signs face Flinders Street.
6. Sign F1 is an electronic sign similar to M5.
7. Sign F4 is located on the window nearest to Foxton Lane.
8. Sign F5 is affixed to the fascia of the awning facing Flinders Street.
9. Photographs showing the Flinders Street and Market Street frontages of building are set out below.[6]

1. As amended, the grounds of the application are:
   • since 1 Janaury 2014, through 15 years of continuous use (1998 -2014) established under clause 63.01 of the planning scheme, an existing use right accrued on the land for use for the construction and display of the signs; and
   • since that time the applicant has been able to renew and replace the content of the signs; and
   • due to the effect of s 6(3)(e) of the PE Act, nothing in the planning scheme can require the removal or alteration of any lawfully constructed building or works.
2. An alternative continual period of use is put by the applicant in respect to sign F4 in the period 2007 to 2022.
3. The applicant's reliance on s 6(3) of the PE Act is based on a contention that the signs constitute a 'lawfully constructed building' for the purposes of that section.
4. To establish the period required of continuous use required under clause 63.11, the applicant relies on the evidence of:
   • Wendy Mead, the sole director of the applicant who was called to give evidence at the hearing; and
   • Brian Donnelly, the solicitor with carriage of the proceeding on behalf of the applicant.

1. The responsible authority opposes the application because it contends:

1. At all relevant times, the business identification signs on the Land listed in the Applicant's Summary of Application for Declaration (at paragraph 21) and in the affidavit of Ms Wendy Cathryn Mead (at paragraph 14) (Signs) required, but did not obtain, development permission under the Melbourne Planning Scheme (Scheme). 2. Development and use are separately regulated under the Planning and Environment Act 1987 (Act) and the Scheme. 3. The Signs on the Land do not comply with the Act and the Scheme as they do not have development permission. 4. Whether or not existing use rights can be established in respect of the use of the Land to display the Signs does not resolve the non-compliance with the Act and the Scheme. This is because:

4.1 there is no concept of existing development rights; > > 4.2 establishing the existence of existing use rights does not rectify the failure to obtain development permission in the first place.

2. Section 6(3)(e) of the Act has no application to the proceeding because it is limited to "lawfully constructed building or works".
3. The responsible authority submitted that its opposition to the making of the declarations sought by the applicant centres on the distinction between 'development' and 'use'. It submitted that the establishment of existing rights for use of the land for the ongoing display of the signs does not cure the failure of the applicant to obtain development permission for the signs under the planning scheme as it was in 1998 and thereafter.
4. The responsible authority submitted that the signs in question do not constitute a 'building' for the purposes of s 6(3)(e) of the PE Act and in any event, if that is not accepted, any such 'building' is not lawful because the necessary permit for development under the 1998 planning scheme or any of the schemes thereafter until the present day has not been obtained.
5. Although the responsible authority maintained throughout this proceeding that a development permit was required in 1998 for the initial putting up of the signs, it did not seek a declaration to this effect. Accordingly, I have not made any finding on the construction of the planning scheme as it was in 1998 or whether a planning permit for development was required in 1998 for any of the signs the subject of the applicant's application.
6. Further, the responsible authority also does not accept that the applicant's material and evidence establish that the extent of the existing use right has been established for the requisite continuous 15-year period.

1. Some of the facts agreed upon between the parties have been set out in the introduction part of these reasons setting out the physical context of the land and building.
2. The parties also agree to the following matters which relate to the planning scheme provisions since 1998 which may be relevant to the issues in this proceeding:

1. The land is subject to the Melbourne Planning Scheme (Scheme) and presently, the following planning controls affect the land:

(b) Parking Overlay - Schedule 1;

(c) Design and Development Overlay - Schedules 1 and 10; and

(d) Heritage Overlay Schedule HO660 (HO).

1. There are two permit triggers for signage under that Scheme:

(a) clause 37.04-5 of the CCZ1 that requires a permit to construct or put up for display a sign; and

(b) clause 43.01-1 of the HO that requires a permit to construct or display a sign.

1998 Scheme

1. In 1998, the old format version of the Scheme was in operation. The land was located in the Central City Development Area, and specifically the Flinders West Precinct.
2. Clause 209 Advertising Signs of the old format version of the Scheme provided:

A permit is required to display a sign except as exempted in this Part.

A sign lawfully displayed on the approval date or that was being constructed on that date may be displayed or continue to be displayed and may be repaired and maintained.

A lawfully displayed advertisement may be renewed or replaced.

However a permit is required:

• 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 mee the relevant advertising sign requirements.

Note: Clause 18 does not apply to this Part.

1. Clause 203A provided for Exempt Buildings, Works and Signs. The list of exempt signs includes:

2. Clause 218 Notable Buildings and Heritage Precincts applied to a notable building listed. The building on the land, 'Holyman House' is listed in the table to Clause 218.
3. Clause 218 provided that:

A permit is required to externally alter a building by painting, rendering, sandblasting, decorating or in any other way.

1. The new format version of the Scheme came into operation on 4 March 1999.

(a) A permit is required to construct and display a sign unless the schedule to the zone specifies otherwise;

(b) Clause 43.01-1 of the Scheme provided that a permit is required to:

Construct or display a sign.

2023 Scheme

(a) did not require the Applicant to obtain a planning permit to use the land for signs;

(b) did require the Applicant to obtain a planning permit to develop the land for the signs.

Relevant Current Scheme Provisions

1. Clause 5.0 of the CCZ1 provides, amongst other things, that a permit is not required:

(a) for advertising signs exempted by clause 52.05-4 of the Scheme;

(b) for a window display;

(c) for a non-illuminated sign on a verandah fascia, provided no part of the sign protrudes above or below the fascia; or

(d) to renew or replace an existing internally illuminated business identification sign.

1. Clause 52.05 is a particular provision of the Scheme which relates to signs and, by reason of clause 37.04-5, sets out requirements that apply to signs on land in the CCZ1, except that the sign categories at clause 52.05-11 do not apply.
2. Since 31 July 2018, clause 62.01 has provided, amongst other things, that any requirement in the Scheme relating to the use of land does not apply to the use of land to display a sign.
3. Clause 62.02-1 provides that any requirement in the Scheme relating to the construction of a building or carrying out of works does not apply to the construction or putting up for display a sign consistent with the requirements of Clause 52.05-10.
4. Clause 62.02-2 provides that any requirement in the Scheme relating to the construction of a building or the construction or carrying out of works does not apply to the construction of or putting up for display a sign (except for a sign consistent with the requirements of Clause 52.05-10 which is provided for in Clause 62.02-01).
5. Clauses 63.01-63.12 of the Scheme relate to various aspects of establishing an existing use right for the purposes of section 6(3) of the Planning and Environment Act 1987.
6. Clause 64.01 of the Scheme provides that if land is used for more than one use and one is not ancillary to the other, each use much (sic) comply with the Scheme.
7. Clause 73.02 of the Scheme defines terms which may be used in a planning scheme in relation to signs.
8. Buildings contained in the heritage overlay of the Scheme can be graded 'significant', 'contributory' and 'non-contributory'. The land is graded significant pursuant to the Heritage Places inventory, an incorporated document under clause 72.4 of the Scheme.
9. I note that the parties have referred to 'The 1998 Scheme' in the above agreed facts. More accurately, the planning scheme that was in operation in 1998 commenced operation on 21 September 1995.

(3) Subject to subsections (4) and (4A), nothing in a planning scheme or amendment shall-

(a) prevent the continuance of the use of any land upon which no building or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or

(b) prevent the use of any building which was erected before the coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or

(c) prevent the use of any works constructed before that coming into operation for any purposes for which they were lawfully used immediately before that coming into operation; or

(d) prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or

(e) require the removal or alteration of any lawfully constructed building or works.

1. Although commonly referred to as a provision protecting existing use rights, the inclusion of s 6(3)(e) of the PE Act protects something other than an 'existing use' that falls within s 6(3)(a)-(d). It protects 'any lawfully constructed building or works' from removal or alteration at the direction of a planning scheme.
2. Section 3 of the PE Act defines the term 'development' as follows:

"development" includes -

(a) the construction or exterior alteration or exterior decoration of a building; and

(b) the demolition or removal of a building or works; and

(c) the construction or carrying out of works; and

(d) the subdivision or consolidation of land, including buildings or airspace; and

(e) the placing or relocation of a building or works on land; and

(f) the construction or putting up for display of signs or hoardings;

1. Notably s 6(3)(e) of the PE Act does not protect 'any lawfully constructed development'. Therefore, the protection afforded by s 6(3)(e) of the PE Act extends only to that subcategory of development amounting to a 'building or works' that have been lawfully constructed.
2. For the relevant signs to be afforded protection under s 6(3)(e) of the PE Act, they must all fall within the meaning of the phrase 'any lawfully constructed building'. As held in APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8 ('APN'), the PE Act does not remove signs from the concept of 'building'.[7] This does not mean that all signs are buildings but that 'signs can clearly be structures and therefore buildings within the meaning of the Act, especially where they are elaborate and self-supported'.[8]
3. If the relevant signs do not amount to a building, then the protection afforded under s 6(3)(e) of the PE Act does not extend to the signs.

Do the signs constitute 'any lawfully constructed building'?

1. Section 3 of the PE Act defines the term 'building' as follows:

(a) a structure and part of a building or a structure; and

(b) fences, walls, out-buildings, service installations and other appurtenances of a building; and

(c) a boat or a pontoon which is permanently moored or fixed to land;

1. The applicant submitted that the relevant signs amounted to a lawfully constructed building for the purposes of s 6(3)(e) of the PE Act because they were all affixed to an existing building.
2. The signs are affixed to parts of the Holyman House in the following ways:
   1. adhered to windows facing the Market Street and Flinders Street;
   2. the use of an electronic signs in existing corner windows for display;
   3. affixed to the facias facing Market Street and Flinders Street.
3. In APN, the Supreme Court considered the statutory definition of 'building' in the PE Act and provided the following guidance when considering whether something constituted a structure and therefore a building (footnotes omitted):

1. In O'Brien v Shire of Rosedale, Gillard J identified three characteristics which are associated with a structure in its ordinary meaning. First, it is the product of the assembly of a number of component parts to produce some thing which is different from those parts and which is practical value. Second, this thing is commonly attached to the land on which it is erected, but this is not a necessary characteristic. Third, it has a degree of permanence. 2. In Aquatec-Maxcon Pty Ltd v Barwon Region Water Authority, Byrne J agreed with the characteristics identified by Gillard and added that:

In ordinary usage, "structure" has a wider meaning than "building". The express inclusion of "structure" within the statutory meaning of building must therefore serve to enlarge the meaning of "building"...To put the matter another way, in normal speech, every building falls within the meaning of structure. To read down structure in the definition so that it has no wider meaning than building, has the consequence that the word "structure" contributes nothing to the definition at all.

4. Although these two decisions were considering the word 'structure' in different legislative contexts, they both found the word to have its ordinary meaning. I see nothing to suggest that 'structure' does not have its ordinary meaning in the context of this Act. I therefore find those decisions to be of significant assistance.
5. I do not agree with the applicant that any of the signs in question constitute structures or constitute a part of a building or otherwise fall within the statutory definition of 'building' within the PE Act.
6. The three characteristics that are associated with a structure identified by Gillard J in O'Brien v Shire of Rosedale are not statutory criteria to be strictly applied when interpreting the definition of 'building' in the PE Act. These identified characteristics amount to a useful guide, however each matter must be considered on its own facts and circumstances and the weight to be given to each of these identified characteristics is a matter for (in this case) the Tribunal.
7. In this matter, while arguably Signs M1-M4, M6, F4 and F5 are made up of component parts (paper/plastic/film, ink etc) resulting in a printed medium, the final product is neither self-supporting, elaborate, attached to the land or the building in a permanent way.
8. The degree of permanence required to be demonstrated should extend beyond merely a consideration of how long something has been on the land or within a building but also considered the materials of which the item is compiled or made from and the method or means by which the item is affixed, erected, or put up.
9. Aside from the electronic signs, all the signs are printed on relatively lightweight materials affixed to a pre-existing surface and constitute easily removable items or material and can be readily removed when renewing content. The mere adhesion of the printed medium onto existing windows does not provide them with a sufficient degree of permanency to find that each sign is a 'structure' or forms part of the existing building for the purposes of the definition of 'building' in the PE Act.
10. The placement of the electronic signs within the existing building in view of existing windows to enable viewing of the multiple signs displayed thereon also do not amount to the erection of structures even though these signs may be suspended from the ceiling or affixed to an internal supporting wall. These electronic signs digitally display advertising or other informative content on an electronic monitor and to the extent that they are somehow attached to an internal part of the building, at best, may constitute part of the internal fit out of the ground floor of Holyman House.
11. I find that none of the relevant signs being signs M1-M6 or F1, F4 and F5 constitute a structure, building, or part of a building, under s 3 of the PE Act. Therefore, the protection afforded under s 6(3)(e) of the PE Act does not extend to any of the signs the subject of the application.
12. For completeness, because I have found that none of the relevant signs fall within the definition of 'building' under the PE Act:
    • it is not necessary to consider whether the signs constitute 'any lawfully constructed buildings or works'; and
    • the exemption contained in clause 62.02 of the planning scheme regarding 'buildings and works' is not relevant.

Has the applicant established existing use rights under clause 63.11 of the planning scheme?

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 us a lawful continuation by a utility service provides 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. The applicant relies on proof of continuous use for 15 years established under clause 63.11 of the planning scheme.
2. Clause 63.11 of the planning scheme states:

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 nay 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 a period of 15 years at any time before 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 before or during the 15 year period, unless any of the following apply:

• At any time before or after the 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 s written direction for the use to cease by reason of its non-compliance with the scheme.
• The use ceased between the end of the 15 year period and the date of the application or proceeding.

1. The applicant seeks to establish existing use rights in respect to the signs even though since December 2023, clause 62.01 of the planning scheme exempts the use of land (other than land included in the Public Conservation and Resource Zone) to display a sign from any requirement relating to the use of land under the planning scheme to obtain a planning permit. The applicant submitted that as clause 62.01 only became operational after the contended 15-year period of continuous use concluded, the clause is not relevant to the Tribunal's consideration of the accrual of an existing use right during that period.
2. Neither party submitted that there were any disentitling factors listed in clause 63.11 that applied on the facts of this matter. I have therefore proceeded on that basis.
3. Wendy Mead, the sole company director of the applicant gave evidence at the hearing. Her evidence was substantially consistent with her affidavits previously filed in support of the application for declarations.
4. Ms Mead was cross-examined and although at times her recollection of specific events lacked detail, I am satisfied that her evidence, even in the absence of any photographic evidence, supports the following findings:
   • In December 1998, the applicant commenced occupation of the ground floor of the Holyman House;
   • Just prior to the Christmas period in 1998, the following signs were put up for display:
     • On Market Street-
       • four identification signs that were adhered to the inside of the glass on the lower half of the four arched double hung windows;[9]
       • a business identification sign on the corner winder to Flinders Street and 12 A3 sized Perspex sleeves in two rows displaying job vacancies;[10]
       • a business identification sign to the return veranda fascia;[11] and
     • On Flinders Street:
       • a business identification sign on the corner window to Market Street and 12 A3 sized Perspex sleeves in two rows displaying job vacancies;[12]
       • a business identification sign on the corner window to Foxton Lane;[13] and
       • a business identification sign to the veranda fascia.[14]
   • There have been signs in the above locations continuously save for short periods of repair since December 1998.
   • The applicant did not obtain a planning permit in relation to the signs under the planning scheme in 1998 or any date thereafter.
5. The evidence of Ms Mead establishes that in the period 1 December 1998 - 29 April 2025 (which exceeds the requisite period of 15 continuous years under clause 63.11 of the planning scheme), the land has been used for the display of signs in the locations shown on Drawing No. SK02 for Signs M1-M6 and in the locations shown on Drawing No. SK03 for F1, F4 and F5.
6. In respect of Sign F4, I am not satisfied that the single photograph appearing in the Tribunal Book at page 155 relied upon by the responsible authority in its submission that there was no sign in the location of Sign F4 in 2002 forms a reliable basis to not accept Ms Mead's evidence regarding the continuous use of the land for the display of a sign in that location.
7. Ms Mead also gave evidence, which I accept, that there were changes in the content of the signs in 2013, 2015 and 2023.

1. The applicant seeks four declarations.
2. The first declaration is that 'the applicant has displayed the signs on the land for a continuous period of 15 years between late 1998 and 1 January 2014.' I refuse to make that declaration because that declaration has no factual basis. The applicant has not displayed Signs M1-M6, F1, F4 and F5 since late 1998. Ms Mead's evidence, accepted by me, is that the signs originally put up for display have been changed.
3. What the evidence before me established is that in the period from late December 1998 to 1 January 2014, the applicant has used the land for the display of signs in the locations that Signs M1-M6, F1, F4 and F5 are now displayed.
4. Such a finding could form the factual basis for the making of a declaration that Holyman House enjoys existing use rights in respect of its use for the display of signs in the locations of Signs M1-M6, F1, F4 and F5 protecting that use from the requirements of the planning scheme that would seek to prevent the use of Holyman House for that purpose (conferring the protection afforded under s 6(3)(b) of the PE Act).
5. Although I accept that the existence of clause 62.01 is not relevant to the factual enquiry required to establish whether there has been a continuous use over a 15 year period, I am not satisfied that there is any utility in making such a declaration where that clause has the effect that any requirement in the current planning scheme does not apply to the use of land to display a sign.
6. The second declaration sought by the applicant is that by reason of the first declaration sought, on 1 January 2014, the signs were lawfully constructed on the land. Given that I have refused to make the first declaration it follows that I will not make the second declaration sought by the applicant.
7. However, something more needs to be said about the underlying basis for the applicant's attempt to draw a connection between the first and second proposed declarations.
8. As made abundantly clear in APN:
   • ongoing display of a sign after its erection is either use or development but cannot be both;[15]
   • while to say existing use rights protects use only and not the underlying building may be strictly correct, s 6(3)(e) of the PE Act protects 'lawfully constructed buildings or works' from removal or alteration;[16]
   • the purpose of subparagraph (f) in the definition of 'development' in s 3 of the PE Act is to -
     • make it clear that 'development' includes the construction or putting up of any type of sign where there otherwise may be doubt;[17] and
     • ensure that no matter what form the sign takes, a planning scheme will be able to regulate it being put up;[18]
   • the words 'putting up for display' in subparagraph (f) of the definition of 'development' in s 3 of the PE Act, evinces a distinction between the original erection of a sign and its ongoing display;[19]
   • if Parliament intention to create a new and unified concept of 'sign' and remove it from the protection of s 6(3) of the PE Act, then one would have expected to see an express provision providing that s 6(3) does not apply to signs;[20]
   • the purpose of an advertising sign is not to enhance the use of a building or to decorate a building or make it aesthetically pleasing. It has its own distinct and specific purpose which may be to communicate specific information.[21]
9. Further, characterisation of the use of land does not determine the task of analysing what development permissions may also be required by a particular proposal.
10. All this is to say that if the responsible authority is correct that either at the time of the initial putting up for display of the signs, planning permission for the 'construction or putting up for display of signs or hoardings' under the applicable planning scheme was required, this required permission is distinct from any permission that may have been required for the ongoing display for the signs once they were put up for display in 1998.
11. A finding for the purposes of clause 63.11 of the planning scheme that the Tribunal is satisfied that an existing use has been established as a result of 15 years continuous use of land for the use of land for the purpose of ongoing display of signs, does not amount to a finding that the initial construction or putting up for display of any such signs was lawful under the planning scheme at the relevant time.
12. The consequence of such a finding extends to protecting the continued use of any lawfully constructed building used for the existing use and nothing in the planning scheme can prevent that continued use or require the removal or alteration of any lawfully constructed building within which that use is being conducted.
13. Where a use (subsequently found to enjoy existing use rights) follows unlawful development (whatever form it takes), the protection conveyed by s 6(3)(a)-(d) does not extend to make unlawful development - lawful.
14. If the purpose of s 6(3)(e) of the PE Act was to make unlawful buildings and works lawful upon the establishment of an existing use right under s 6(a)-(d) of the PE Act, then this subsection would not refer to 'lawfully constructed buildings and works' but rather simply 'buildings and works within which, or upon which, the existing use is being conducted.'
15. Further, if the purpose of s 6(3)(e) of the PE Act was to make unlawful development lawful upon the establishment of an existing use right carried out on or in that development, then the subsection would refer to 'development within which, or upon which, the existing use is being conducted'.
16. There was no dispute between the parties that the ongoing use for the purposes of display of a sign is occurring within and on Holyman House. There is no dispute, absent the question of the signs, that Holyman House was lawfully erected and nothing in a future planning scheme or amendment to an existing scheme can require its removal or alteration. This is so even if the continued use made of those premises is one that enjoys existing use rights.
17. As none of the signs in question are 'buildings or works' for the purposes of s 6(3)(e) of the PE Act, any requirement for their removal or alteration will not offend s 6(3)(e) of the PE Act if it is found that the signs are unlawful development. This is the product of the distinction between the initial putting up of a sign, being development, and the ongoing use of land for the continued display of a sign being a use, and the limited protection afforded 'any lawfully constructed building or works' in s 6(3)(e) of the PE Act.
18. The third declaration sought by the applicant seeks to establish that there has been no cessation of the use of the land for the ongoing display of the signs following the 15-year period required to be established under clause 63.11 of the planning scheme.
19. As stated above, I accept the evidence of Ms Mead that the land has been used for the display of signs in the locations shown on Drawing No. SK02 for Signs M1-M6 and in the locations shown on Drawing No. SK03 for F1, F4 and F5 in the period late December 1998 to 29 April 2025.
20. However:
    • there is no utility in making the third declaration for the reasons given for refusing to make the first declaration; and
    • it does not follow that the establishment of an existing use right under clause 63.11 of the planning scheme to use the land for the purpose of the ongoing display of signs in the locations shown on Drawing No. SK02 for Signs M1-M6 and in the locations shown on Drawing No. SK03 for F1, F4 and F5 means that nothing in the planning scheme can require the removal of the signs or alteration of the signs on the land if the signs are found to be unlawful development.
21. Accordingly, I refuse to make the third and fourth declaration sought by the applicant.

1. For the above reasons, the application for declarations under s 149A(1)(b) (as amended) is refused.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] An infringement notice of 17 October 2024 was issued to the owner of the land but was withdrawn and replaced with a 'caution in place of a penalty'; see Tribunal Book ('TB') at p.67.

[3] See Tribunal's order of 12 May 2025 however, for the purposes of the hearing both parties proceeded on the basis that the application had been so changed.

[9] In the locations of window Signs M1-M4.

[10] This was the sign replaced by electronic Sign M5.

[11] In the location of fascia Sign M6.

[12] This was the sign replaced by electronic Sign F1.

[14] In the location of fascia Sign F5.