It is the order of the Tribunal that the decision of the Responsible Authority in permit application No TP-2007-201 is set aside.

A permit is granted and directed to be issued pursuant to Section 85(1) (b) of the Planning and Environment Act 1987 for the land at 270-272 Flinders Street, Melbourne.

Erection of an internally illuminated major promotion sign in accordance with the endorsed plans.

1. The plans to be endorsed and which will then form part of the permit are the two plans attached to the December 2007 evidence statement of Mr John Briggs and marked 1 of 2 (a) and 2 of 2(a).
2. The signage as shown on the endorsed plans, including the type and intensity of internal illumination must not be altered or modified without the prior written consent of the Responsible Authority.
3. The signage, including its structure and advertising material as shown on the endorsed plan, must at all times be maintained in good order and condition to the satisfaction of the Responsible Authority.
4. The sign hereby permitted must not be animated or contain any flashing light.
5. The sign must not:
   • (a) Dazzle or distract drivers due to its colouring.
   • (b) Be able to be mistaken for a traffic signal because it has, for example, red circles, octagons, crosses or triangles.
   • (c) Be able to be mistaken as an instruction to drivers.
6. The time for the commencement of the development hereby approved is, pursuant to Section 68(1) of the Planning and Environment Act 1987, specified as 2 years from the date of issue of this permit and the time for completion is specified as 2 years from the date of such commencement.

The time within which the development is to be commenced or completed may on application made before or within 3 months of the expiry date of this permit be extended by the Responsible Authority.

1. This permit will expire 25 years from the date of issue of the permit.

Mr Jeremy Gobbo, QC by direct access brief. He called Mr Kel Twite, Town Planner of SJB Planning Pty Ltd and Mr John Briggs, Architect and Conservation Consultant of JBA Pty Ltd.

Mr Michael Dietrich, Town Planning Consultant of Windsor Planning.

1. At the conclusion of the hearing, I gave an oral decision to grant a permit and this summary contains the reasons for that decision. I do not detail the proposal, the site context and planning scheme provisions as these are identified in the various documents contained on the Tribunal file. I inspected the review site and locality on the morning prior to the hearing.

1. In essence the key issue in this case is whether policy discouraging promotion signs should outweigh other considerations to a point where the sign should be rejected. I agree with Mr Dietrich that it is about achieving a balance and that the key question for me is whether the proposed promotional signage is appropriate in this location.
2. Mr Dietrich, Mr Gobbo, Mr Twite and Mr Briggs made reference to relevant parts of planning policy. Of these, Clauses 22.07 (Advertising Signs) and 52.05-5 were of most relevance although Clauses 19.03, 21.05, 21.08, 22.01 and 22.04 were also discussed. Local policy at Clause 22.07 suggests (amongst other matters) that:
   • Signs should respect the building style and scale and the character of the street.
   • Signs should fit within architectural forms and be integrated with the design of the building.
   • Signs should not obscure architectural features of buildings, including windows.
   • Signs should not cause visual clutter.
   • Promotion, panel and sky signs are discouraged.
3. Clause 52.05-5 includes a decision guideline (amongst others) that:
   • 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.
4. As remarked upon in another case by Senior Member Marsden (Adspace Pty Ltd v Melbourne CC [2006] VCAT 115), discourage does not mean prohibition and I adopt favourably his comments that:
   1. It is important to note that promotional signage, although 'discouraged', is not prohibited in heritage areas. Rather the planning scheme envisages that a careful assessment of any such application must be undertaken. That assessment must ascertain whether or not the heritage assets that the Overlay seeks to protect will be threatened or damaged should the proposal proceed.
5. I want to say something about 'dominant visual element'. Mr Gobbo sought to distinguish between the sign being 'prominent' rather than 'dominant'. According to the Macquarie Dictionary[1], Dominant is defined to include ruling, governing, controlling, most influential, occupying a commanding position, main, major, and chief. This can be contrasted with Prominent which is defined to include standing out so as to be easily seen, conspicuous, very noticeable, important, leading, well known. While there is a distinction between the two, it seems to me the key point is the one raised by Mr Marsden; that is whether the heritage asset sought to be protected will be threatened or damaged.
6. Mr Briggs gave evidence about the impact of the sign on heritage issues and made particular reference to local heritage policy at Clause 22.04. His opinions were not countered by expert evidence called by the Council, although Mr Dietrich tabled an internal memorandum with comments from Mr Bryce Raworth who is Council's conservation consultant.
7. I agree with Mr Briggs that:

The proposed sign will have no physical impact upon any heritage fabric and will not obscure the view to, or legibility of, any heritage fabric.

... that the proposed sign is well separated from adjacent heritage assets.

... that the proposed sign would be perceived as another of the many juxtaposed elements that make up our vibrant city, a juxtaposition that includes both contemporary and heritage elements without providing any sense of overload.

1. It is obvious that all signs must be visible and must be prominent in order that they attract attention. This sign will not sit on top of the building, does not occupy a very large proportion of the eastern façade, is visually separated from the adjoining heritage building by the tall, modern additions to that building, cannot be seen at close range by pedestrians (because of its position high on the façade and screening by verandahs and other buildings), and is just one small element within a much broader view shed.
2. Mr Briggs' suggestion to reduce the width of the sign so that it fits within the vertical rendered section of the eastern façade is a significant improvement over the original proposal considered by Council. In addition to reducing the total area of the sign by about 10%, narrowing it means that the sign also meets policy suggesting that signs should fit within architectural forms and be integrated with the design of the building, and that they should not obscure architectural features of buildings, including windows.
3. On balance, I am satisfied that this sign will not be a dominant element within the heritage place or that it will obstruct significant view lines. Furthermore the changes suggested by Mr Briggs will result in a sign that better integrates with the architectural form and design of the host building.
4. During the discussion of draft conditions, Mr Gobbo asked that the proposed 10 year time limit be extended to a time deemed suitable by me. I understand that the City of Melbourne usually seeks to include a 10 year time limit on all sign permits, but in the absence of any compelling argument as to why such a short time limit should be imposed, I am satisfied that a 25 year time limit is reasonable. Although the sign is on a relatively new building, it is quite likely (even highly likely) that change in the built environment or sign technology over the next 25 years will result in this sign disappearing or being replaced well before that time is up. Despite such a possibility, I consider it unwarranted to impose a lesser time limit than 25 years.

1. Having regard to the above I will therefore set aside Council's decision and direct that a permit issue subject to conditions.

[1] Macquarie Concise Dictionary, Fourth Edition 2006