1. Pursuant to section 127 and Clause 64 of Schedule 3 of the Victorian Civil and Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:

1. The decision of the Responsible Authority is affirmed.
2. In planning permit application number PLN15/0721, no permit is issued.

The costs at this proceeding are reserved. Any party claiming their costs must within 21 days of the date of this order lodge with the Tribunal a written Costs Submission, concurrently served on the other party. This submission must confirm the quantum of costs being sought and provide submissions why a costs order should be made. The party against whom costs is claimed shall shall within 14 days circulate its written response. This response must confirm if the costs claim is disputed or conceded and if the latter, a submission must be provided why no costs order should be made. Unless the Tribunal considers that further Directions are required, it anticipates then making its costs order 'on the papers'.

The demolition of an existing externally- illuminated major promotion sign and the construction and display of a replacement electronic major promotion sign

Application under Section 79 of the Planning and Environment Act 1987 - to review the failure to grant a permit within the prescribed time.

Clause 34.01-9: In the C1Z, permission is required for an advertising sign as per Clause 52.05.

Clause 43.01-1: Permission is required for demolition and to construct or display a replacement sign pursuant to the HO310.

Clauses 15.01, 17.01, 18.02, 21.05, 21.08, 22.02, 22.04 and 22.05

The subject period building at 498 Bridge Road in Richmond is located slightly back from the south-eastern corner of the intersection of Bridge Road and Burnley Street. In particular, the subject land is one lot further to the east of the very corner, and is improved by a Victorian-era two storey commercial building. The existing sign on the roof of this building has its main face oriented in a roughly north-west direction. It is externally illuminated and its dimensions are as follows - it is 6 metres long by 3 metres high by 200 millimetres deep.

The Tribunal inspected the site and surrounds several times, in passing through its locality on a number of occasions since the Tribunal hearing.

1. The subject land is at 498 Bridge Road in Richmond, being one lot further to the east on the south-east corner of the intersection of Bridge Road and Burnley Street. The review site is improved by a Victorian-era double storey commercial building, which has had a major promotion sign continually erected on its roof for in excess of 15 years. This sign was authorised by planning permit No. 1221 dated 27 October 1978. The dimensions of this existing roof-top sign are that it is 6 metres long by 3 metres wide by 200 millimetres deep, and is flood-lit by 3 'arms' which extend over the top of the sign. The main orientation of the face of the sign is towards the north-west and the extent of the actual sign is about 18 sqm.
2. Although there was previously real uncertainty regarding the application of 'existing use rights' to existing signs, this was resolved by the Victorian Supreme Court decision of APN Outdoor (Trading) Pty Ltd v Melbourne City Council [2012] VSC 8. In other words, this Supreme Court decision is authority that this type of signage that has undisputedly continually existed for over 15 years has the benefit with its longer term operation of 'existing use rights'.
3. It is now proposed that this existing sign be demolished and that a replacement sign be erected, in the form of an electronic major promotion sign. This sign would sit in the same location as the existing sign i.e. on top of the host period building, and have essentially the same dimensions, but would have a 'cleaner' appearance and operate in an electronic manner rather than being a conventional sign which is externally flood lit. It is proposed that the sign would operate 24 hours a day, with a proposed 'dwelling time' of 30 seconds. The new sign would utilize the existing structural supports and staircase with walkway and retain the same orientation as the existing sign.
4. The site is zoned Commercial 1 Zone and also affected for our purposes by a Heritage Overlay HO310.
5. This proceeding has come to the Tribunal as a 'failure appeal', where Council has informally indicated that it does not support the proposal. At the hearing of this matter on 3 May 2016, I heard submissions from the two advocates listed above and by consent allowed the substitution of the new plans. I appreciate Ms Thomas obtaining many photos of other local signs by pedal.
6. By the end of the hearing, there was some discussion about the fact that one benefit being put forward with the proposal would be that it would have a

'cleaner' appearance. However I queried the fact that there were no plans illustrating how this would look. In the end result, I allowed for a follow-up process whereby the Applicant would provide me with an upgraded set of plans/illustrations, providing a better idea of how the proposed new sign would look.

In due course I received this further information, and I also received a brief response from Council indicating that it still opposes the proposal, even allowing for this further information.

Since the hearing, I have viewed the existing subject sign several times, from both directions, as well as being generally familiar with this location from my previous Tribunal work.

1. With both parties being represented by experienced advocates, there seems no particular benefit in the Tribunal spending time explaining the relevant planning framework. Suffice to say that there are planning permit triggers here under both the Heritage Overlay HO310, and also the usual advertising sign permit requirements under Clause 52.05. In relation to the Heritage Overlay, I acknowledge that planning permission is required not only for the proposed new sign, but to demolish the existing structure. It is also common ground that the host building of the sign is listed as being a 'Contributory' building under the relevant heritage framework.
2. I am conscious that the proposal here is not amending the existing permit, but the proposed granting of a new permit. Hence whilst I can give some regard to the fact that a conventional major promotional sign of the same dimensions is already located in the same position, I agree with Council that I still need to assess this proposal on its overall merits in the usual way. This follows the approach of the Tribunal in oOh!Media Pty Ltd v Port Phillip CC [2016] VCAT 480 at [10], where the Tribunal stated that:

"If this were an amendment of the existing permit, the only matter before me would be the change in format of the electronic sign. However, this is a new application (and as such must be assessed on its overall merits). Part of this assessment must logically include the existing sign as it has been deemed to be an acceptable planning outcome until 2034".

1. On the one hand, I acknowledge there are some positive aspects of the proposal. For example, I agree that the proposed new sign would have a 'cleaner' appearance than the existing sign, as it would be a simpler structure and not require the three 'arms' for external illumination. It is a significant concession by the Applicant that it has volunteered that any new permit have a 15 year expiry date attached to it, in the situation where the APN decision undisputedly allows the existing sign to operate (from a planning perspective) with an unlimited timeframe. The Applicant has also

taken a sensible approach in intending the images shown to be static images with a significant 'dwell time', rather than it being proposed that the electronic sign would provide for 'full animation' or a more rapid 'dwell time'.

It also needs to be said that Bridge Road is already a quite visually 'busy' location, including many other existing advertising signs. Apart from my own familiarity with same, I was shown numerous photos of other signs along Bridge Road and indeed Ms Thomas on behalf of Council sensibly conceded that this is the case.

I also acknowledge that some people might find the electronic nature of the proposed new sign visually interesting or possibly appealing. The movie buff in me is reminded of the cult 1980s science fiction movie "Blade Runner". It is set in a dystopian future earth where it is constantly dark and gloomy (the film was shot entirely at night time), but with bright street lighting and street signs being a contrasting point of colour and visual interest.

I also agree with the Applicant that it is a plus for the proposal that in reality there is already a conventional externally illuminated major promotion sign of the same dimensions in the same location - it is not as if this is a brand new permit application 'from scratch'.

On the other hand, I have the following major unresolved concerns about this proposal.

Firstly, this is a much more unusual form of advertising sign, in that it is in a 'roof-top' location. That is to say, almost all other advertising signs along Bridge Road sit in more discrete and low key locations, such as the side-walls of buildings, or on the front fascia of shops etc. The main other comparable type of sign I am aware of is the roof-top sign on the period hotel building at 2A Bridge Road, which is a considerable distance back towards the city. In relation to other typical examples of advertising signs along this section of Bridge Road, while you are aware of them, they do not visually 'jump out at you'. By contrast, the subject sign location here is much more 'in your face' by sitting on the top of the roof of a host building, right next to the corner of a major intersection here of Bridge Road and Burnley Street.

Secondly, I agree with Council that this roof-top location 'flies in the face' of the relevant planning policy framework. For example, Clause 22.05 includes the following policy guidelines for the assessment of the appropriateness of the location of a proposed sign (with my highlighting):

• "Signs must be designed and located to compliment the character of the host building or site and the streetscape.
• Signs must be integrated into the design of the host building, and compatible with its composition, form, fenestration, material, finishes and colours.

Signs must not be erected on the roof of a building or break the historic parapet or roofline.

Views from all angles of the signage structure be considered.

A major promotion sign should be located so that it is no higher than the height of a building or structure on the subject lands."

1. In relation to Clause 22.04, the relevant objectives include "To ensure that signs are not the dominant element in the streetscape" and "To protect and enhance the character and integrity of places of heritage significance". One of the policy provisions in Clause 22.04-3.1 is that "Signs not be erected on the roof of a building or break a historic parapet or roofline". With Clause 22.04-3.3 that specifically deals with "Major promotional signs and pole signs", it is stated that:

"A major promotional sign should be located so that it is no higher than:

• The height of a building or structure on the subject land;"

1. It needs to be said that the proposed electronic major promotion sign is inconsistent with many of the policy provisions set out above. The proposal also clashes with the following 'locational principle' for major promotion signs as set out at Clause 52.05 - "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".
2. Thirdly, it is self-evident that 'the bar is set higher' to make out an acceptable case for the proposal, in the situation here where this strip shopping centre is affected by a Heritage Overlay. In other words, apart from the proposed sign needing to be acceptable under the usual Clause 52.05 criteria, the additional question which arises here is whether the proposal would be an acceptable heritage outcome. This is a much more challenging question to ask in the situation where the existing sign is located on the top of the roof of the period host building affected by the Heritage Overlay and graded 'Contributory', and where it is proposed that the new sign sit in the same location.
3. Finally, I see a further significant complication simply in the fact that this would be an electronic major promotion sign, to be located in an area strongly characterised by its period buildings and protected by a Heritage Overlay. In areas affected by a Heritage Overlay, the broad intent is that other development be complimentary to the important heritage features of the locality. Following this approach, a person moving through this area should 'have his or her eye drawn' to the valuable heritage features of the location. In this situation, I am troubled by the fact that an electronic major promotion sign is inevitably brighter and more eye-catching than a

conventional sign, externally illuminated or otherwise. In the more unusual situation here where the subject area is affected by a Heritage Overlay, I see a real clash between the desire to protect the heritage attributes of this strip shopping centre vis-a-vis the very modern and more visually arresting nature of an electronic major promotion sign.

1. In making this finding, I endorse the following comment at [60] of Council's written submission:

"The Applicant's position that the change in format to an electronic sign will modernise and improve the appearance of the sign is not sufficient reason to perpetuate a poor signage outcome. If anything, being an electronic format sign will mean that it will have a stronger visual presence than the existing flood-lit sign because of the LED lighting and changing images. In Council's view, the change in format will merely serve to draw more attention to a poorly located sign in this heritage precinct."

1. I have found this a challenging matter to resolve and I acknowledge that there are legitimate arguments both ways, in terms of the merits of the proposal.
2. If the proposed replacement sign had been a conventional major promotion sign, or if this shopping strip was not affected by a Heritage Overlay, then I expect it would have been a quite different discussion and the outcome may have been different.
3. However, in the particular situation here where it is an electronic major promotion sign proposed in the more sensitive Heritage Overlay strip shopping centre locality of Bridge Road in an unusual roof-top location, I am ultimately unconvinced that it would be an acceptable planning outcome for the proposal to go ahead. This is even allowing for the Applicant's willingness impose a 15 year 'sunset date' on any new approval granted and even taking into account that there is already a conventional externally illuminated major promotion sign of the same dimensions in the same location.
4. During the hearing the Applicant indicated that it was making a 'Section 79 costs application', with the initial response to same from Council being muted. It seems fair in all the circumstances that I allow any costs claim to more formally run its course and my order 4 above provides for same.

[1] I/We have considered the submissions of all the parties that appeared, all the written and oral evidence, all the exhibits tendered by the parties, and all the statements of grounds filed. I/We do not recite or refer to all of the contents of those documents in these reasons.