Victorian Civil and Administrative Tribunal|2004-09-13|Before: Ms J

Rococco Holdings PL v Bayside CC [2004] VCAT 1801 (13 September 2004)

Application under section 77 of the Planning and Environment Act 1987; Bayside Planning Scheme; Business 1 Zone; Floodlit Major Promotion Sign; Neighbourhood Character; Visual Bulk;

With respect to permit application 03/0903, the Responsible Authority's decision to refuse to grant a permit is set aside.

A permit is granted for a floodlit major promotion sign at 854 Nepean Highway, Hampton East generally in accordance with the endorsed plans and subject to the following conditions:

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

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

4 The sign must be constructed and maintained to the satisfaction of the responsible authority.

5 The sign must not dazzle or distract drivers due to its colouring.

6 The sign must not be capable of being mistaken for a traffic signal or an instruction to drivers.

7 Permission for this promotional sign will expire 15 years from the date of this permit.

8 The sign shall not be animated and no flashing or intermittent light(s) may be displayed.

9 Sign lighting external to the sign must be limited and baffled so as not to cause glare or distraction to motorists or other persons or loss of amenity in the surrounding area all to the satisfaction of the responsible authority.

The Responsible Authority is ordered to issue a permit in accordance with this determination pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

1 This is an Application under section 77 of the Planning and Environment Act 1987 to review the decision by the Bayside Council ('the Council') to refuse to grant a permit in application no. 03/0903 for a floodlit major promotion sign at 854 Nepean Highway, Hampton East.

2 The permit application was lodged with the Council on 28 November 2003.

3 The application was referred to VicRoads who advised that it had no objection subject to the inclusion of the following conditions:

* The sign(s) shall not be animated and no flashing or intermittent light(s) may be displayed.

* Sign lighting external to the signs must be limited and baffled so as not to cause glare or distraction to motorists or other persons or loss of amenity in the surrounding area all to the satisfaction of the responsible authority.

4 The Council sought additional information on the nature of the advertising and the details of the level of illumination on 19 December 2003.

5 The Council required the application to be publicly advertised in February 2004 and no objections were received.

6 The Council considered the application at its Approvals Committee Meeting on 29 March 2004 and determined to refuse the application on the following grounds:

1. The proposal will be detrimental to the amenity of the area.

3. The proposal is excessive and will not complement the area.

4. The proposal is out of proportion and scale with the host building on the subject site.

5. The proposal would have a significant visual impact on the Nepean Hwy corridor.

6. The proposal detracts from the visual amenity of the surrounding urban form.

7. The proposal does not relate to any business conducted on the land.

7 This Application for Review was received by the Tribunal on 4 May 2004 on the grounds essentially refuting the Council's grounds of refusal.

8 Written and oral submissions were made by both of the parties present at the hearing.

9 Photographs, plans and other documents were tabled during the course of the hearing that has given me a good understanding of the review site, its context and the proposal. All of the material tabled has been taken into consideration.

10 The review site is located on the west side of Nepean Highway, at the northern end of the Moorabbin strip shopping centre. It is situated close to the intersection of Nepean Highway and South Road.

11 The review site has an area of approximately 564 square metres and is occupied by a two storey commercial building.

12 The Moorabbin strip shopping centre extends approximately 260 metres and the west side, immediately surrounding the review site, contains single and double storey commercial buildings built to the Nepean Highway frontage.

13 To the east of the review site, on Nepean Highway, are three, four and five storey commercial and municipal buildings that also form part of this strip shopping centre.

14 The land to the west of the review site slopes away from Nepean Highway and contains single and double storey residential dwellings. Vehicular access to the rear of commercial buildings and at grade car parking areas, including for the review site, is available from the west through this residential area.

15 It is proposed to erect a floodlit major promotion sign at an angle across the top of the existing two storey commercial building. The sign will be 4.5 metres high and 19 metres long and setback from Nepean Highway 10 metres at its northern end and 28 metres at its southern end. The sign will display varying promotional advertising material and will be floodlit by six lights mounted on the existing roof decking.

16 The review site is contained within a Business 1 Zone pursuant to Clause 34.01 of the Bayside Planning Scheme ('the Planning Scheme'). The purpose of this zone is:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To encourage the intensive development of business centres for retailing and other complementary commercial, entertainment and community uses.

17 To the north and south the surrounding land is also zoned Business 1, whilst to the east and north east the surrounding land is zoned Business 2. To the west, the land is zoned Residential 1. Nepean Highway is in a Road Zone Category 1.

18 Clause 34.01-6 of the Business 1 Zone states that the advertising sign requirements are in Category 1 of Clause 52.05. A floodlit major promotion sign is a permit required sign in this category, and the purpose of this category is:

To provide for identification and promotion signs and signs that add vitality and colour to business areas.

19 The specific purpose of a Major Promotion Sign is set out at Clause 52.05-5:

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.

20 Ms Bowdern highlighted that the State planning policy for design and built form encourages architectural and urban design outcomes that contribute positively to local urban character; and the Municipal Strategic Statement contains a streetscape design policy that identifies the visual amenity of main roads and streets as critical in determining the overall sense of identity and character of the municipality.

21 Having considered the submissions, I am of the opinion that the application should be approved and a permit issued for the proposed floodlit major promotion sign.

22 Mr Umbers highlighted that the purpose of Category 1 of Advertising Signs at Clause 52.05-7, which applies to this Business 1 Zone, is to provide for promotion signs, amongst others. I note that this is the only category of advertising signage in Clause 52.05 that specifically provides for promotional signage.

23 Clause 52.05-2 sets out decision guidelines for advertising signs, including:

* The effect of the sign on the amenity of the area including the need to avoid visual disorder or clutter of signs.

* The effect of the sign on the built environment or the landscape, with particular thought to its effect on any objects of scenic, historic, architectural, scientific or cultural interest.

* The advertising pattern and theme in the area and the number of signs of the same type.

* The size and likely impact of the sign having regard to the size of the premises on which it is to be displayed and the scale of surrounding buildings.

24 Clause 52.05-5 specifies particular decision guidelines for major promotion signs, including:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

s Significant streetscapes, buildings and skylines.

s The visual appearance of a significant view corridor, viewline, gateway location or landmark site identified in a framework plan or local policy.

25 This Clause also requires locational principles to be taken into account, including:

* 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 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 encouraged 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.

26 Ms Bowdern explained that there is already a major promotion sign on the roof of the existing building on the review site, which was approved in 1995. She submitted that the Council is opposed to this proposal as it is excessive in scale and size and will result in a dominant feature in the streetscape, will cause an unreasonable level of visual bulk and clutter, and will detract from the existing commercial and residential character of the surrounding area.

27 Mr Umbers submitted that the proposed sign is of a similar height to the existing sign and will be angled to screen the majority of the view of the rear of this existing sign. As the proposed sign is of a similar size to the existing major promotion sign on the review site, I do not agree with the Council's submission that it is excessive in scale and size.

28 In regard to the commercial character, I agree with Mr Umbers' description of the Moorabbin strip shopping centre, that it contains a number of single and double storey buildings on the west side of Nepean Highway, as well as a range of larger buildings of three to five storeys in height throughout this shopping centre. Mr Umbers submitted that there are already large promotional signs that feature in this shopping centre, and provided the following description which I adopt:

This includes a major floodlit promotion sign positioned on the northern boundary of the subject site. Planning Permit No. 95/1725 was issued on 13 October 1995 for this sign. To the north of the east corner of Nepean Highway and South Road is a "V" shaped major floodlit promotional sign. At the southern end of the shopping strip on the west side of Nepean Highway is a free standing major promotional sign, on the west side there are two (2) free standing major promotional signs, two (2) wall mounted major promotional signs, and one (1) located on the roof of the building on the southeast corner of Nepean Highway and Station Street.

29 The existing larger buildings and major promotional signs are clearly evident when travelling either north or south along Nepean Highway, therefore I find that the proposal to incorporate an additional major promotion sign will not detract from the existing commercial character of this shopping centre.

30 I agree with Mr Umbers' submission that states at page 9:

Outdoor advertising contributes to the ambience of a shopping centre and although a range of signs are present in the Moorabbin Shopping Centre, they are a recognisable feature of the centre, particularly when internally illuminated and externally lit signs come to life at night to provide a recognisable feature of the shopping centre. The proposed sign will have no effect on the display of existing signs in the shopping centre and will certainly not obscure any other advertising display.

31 The advertising content of the existing major promotional sign on the review site is clearly visible when looking south, and I note that it is not the only promotional sign noticeable in this view. I find that the rear of the existing sign and its support structure is clearly visible when looking north toward the review site. In my opinion, it is the rear view of the existing sign which negatively impacts upon the existing commercial character and I find that the proposed sign would be beneficial, as it would screen the majority of this structure from view.

32 With regard to the residential area to the west of the review site, I note that there are currently views across the top of the houses to the tops of the commercial buildings, and this includes limited views of the rear of the existing major promotion sign on the review site. Mr Umbers submitted that the orientation of the proposed new sign, its advertising text and illumination should not be visible from the residential area. Having considered the limited views available, I agree with Mr Umbers that, from this residential area, only the rear top portion of the sign may be visible, and such a view will be from a significant distance. In my opinion, any such limited views of the rear of the proposed sign will be read as part of the commercial precinct backdrop that currently exists and I find that this will not cause any unreasonable impact upon the residential character or amenity.

33 I note that the locational principles to be taken into account in Clause 52.05-5 when considering a major promotion sign encourage the siting of such signage in commercial locations in a manner which complements or enhances the character of the area. In my opinion, the rear of the existing sign is a built form structure that forms part of the existing commercial character, but it does not contribute to or enhance the shopping centre in any way. I find that the proposed sign will enhance the existing streetscape character of Nepean Highway, as it will screen the majority of the rear of existing sign from view.

34 I note that VicRoads has raised no objection to this proposal in regard to road safety.

35 In conclusion, I find that the proposed sign is appropriate having regard to the character and amenity of the surrounding residential and commercial areas. The commercial character of the shopping centre comprises a range of building heights and a number of existing major promotion signs. There is an existing major promotion sign on the review site and the proposed sign is of a similar size. There will be limited long distance views from the residential area of the proposed sign, however this will form part of the existing commercial backdrop that includes a range of building heights and existing promotional signage.

For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is set aside. It is ordered that a permit be issued subject to conditions.

Rococco Holdings PL v Bayside CC [2004] VCAT 1801

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Rococco Holdings PL v Bayside CC [2004] VCAT 1801 (13 September 2004)

Parties