Internally illuminated business identification sign

Internally illuminated business identification sign

The proposed works will consist in the erection of 30.44m2 of business identification signage.

The application also proposes to paint the buildings Upper Heidelberg Road façade in a heritage cream colour.

17 The subject land is located within a Business 1 zone, and I was taken to the purposes of that zone.

18 The site is also located within a Heritage Overlay, and the purposes of that Overlay were highlighted to me.

19 The subject land is also located within the Design and Development Overlay Schedule 7. Schedule 7 to the Overlay requires all buildings and works to be in accordance with the "Urban Design Guidelines for Ivanhoe Shopping Centre" adopted by Council on 8 April 2002.

20 The universal guidelines outlined in the Urban Design Guidelines for Ivanhoe Shopping Centre states:

Signage on buildings forming part of the development must reflect the design and theme for the centre. Provision for signage should integrate in the detailed design of the proposal and must be shown on drawings submitted with planning applications.

21 The design objectives for this Overlay include the following.

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To ensure that development recognises the importance of the Ivanhoe Shopping Centre as a community activity centre, which predominantly services a significant local catchment.

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To give direction to the design of any proposed development in the Ivanhoe Shopping Centre.

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To ensure that the design, layout, materials, proportions and scale of buildings take into account the character of the Ivanhoe Shopping Centre and the appearance of the building when viewed from surrounding streets and nearby areas.

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To enhance and reinforce views from the area and to the area from other parts of the Ivanhoe Shopping Centre and adjacent and nearby areas.

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To avoid unreasonable impacts from development on neighbouring areas.

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To ensure that future development including landscaping is compatible with and respectful to the nature and characteristics of the Ivanhoe Shopping Centre and the surrounding areas.

22 Clause 52.05 of the Planning Scheme sets out the requirements for signage. The relevant purposes here are as follows.

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To allow adequate and effective signs appropriate to each zone.

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To provide for the orderly display of signs.

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To ensure that signs do not cause loss of amenity or adversely effect the natural or built environment or the safety, appearance or efficiency of a road.

23 In relation to the relevant local policies in Council's MSS, Council's MSS identifies 9 key planning elements for consideration, with the relevant ones here being "Commercial", "Built Form" and "Heritage".

24 I was also referred to the Banyule City Council Outdoor Advertising Policy August 2001. Of particular relevance here is Section 3 of this August 2001 document, which deals with "Signs in Ribbon Shopping Centres".

25 Some relevant provisions from this Section 3 are as follows.

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To encourage signs which enhance the cohesiveness of the Centre.

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To encourage signs which respond to the architecture of the building.

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To reduce the visual clutter of signs to ensure the effectiveness of the message and to enhance the streetscape.

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To ensure there is equal access to advertising space and that signs do not adversely affect the advertising capability of adjoining or nearby premises.

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To discourage signs above the parapet or roof line.

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To ensure that illuminated signs do not cause light spill or glare into residential areas nor distract road uses.

Signs in these Centres should aim to be attractive to pedestrians and to identify businesses for passing motorists. Examples of such signs are:

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Non-illuminated verandah fascia signs;

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Under-verandah signs;

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Attractive window displays;

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Above verandah signs which enhance the streetscape and respond to the character of the building.

Sky, panel, animated, illuminated fascia, "V"-board, verandah awning signs, bunting and promotion signs.

26 As per the Grounds of Appeal, there are three main issues I need to resolve in this appeal, being:

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Whether there should be any extended period for the relevant signage plans to be completed and approved by Council, and similarly whether any extension of time should be granted for the Applicant to actually complete the works;

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Issues associated with the V-Board sign; and

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Issues associated with the façade sign.

27 I will now deal with each of these issues in turn.

28 In relation to the relevant planning permit No. P447/04 dated 4 November 2004 ("Permit"), Condition 1 (as things stand) gives the Applicant one month to submit amended plans for approval by Council, with the amended plans to show changes to the above-veranda sign, the removal of the V-Board sign and the a schedule of external building colours. Condition 2 requires that the necessary works under the Permit be completed within two months of the granting of the Permit.

29 Mr Hooper challenged the timing aspects of both Conditions 1 and 2. He put to me that a combined six month deadline was more appropriate, given the logistical issues associated with the amending of the plans and then arranging for the works to be carried out. Council indicated at the hearing that it had no problem with having a combined requirement rather than a "two-step" arrangement as currently exists under Conditions 1 and 2. However Council also highlighted that it had experienced past problems with the owner of the subject land complying with his permit condition obligations in relation to the re-painting of the façade of the subject shop to a suitable heritage colour. Hence Council put to me that it is fair that a specific deadline be imposed for the signage amendments and works here to be completed.

30 Having considered these submissions and the issues involved, I accept that it is reasonable per se for there to be a deadline for the amendments/works to be completed, but I am unconvinced that a full six month combined period is needed. Unlike if say Christmas was approaching, there is now a fairly clear run over the next few months for the amendments and works to be done. In these circumstances, I consider a six month combined period to be excessive, but am satisfied that a combined period of four months is acceptable.

Does Applicant Enjoy Existing Use Rights in relation to V-Board Sign

31 It is common ground that the V-Board sign currently exists in the subject shop front, located immediately above the veranda, and is illuminated. Each side of the V-Board sign features the words "Blockbuster" and the outline of a movie ticket, and is painted in the standard Blockbuster corporate blue colour.

32 The first limb to Mr Hooper's submission in relation to the V-Board sign is that the sign enjoys existing use rights, and hence there is no need for any fresh planning permission. Following this submission, the sign has been there for at least 15 years, so it enjoys existing use rights pursuant to the relevant bullet point under Clause 63.01 of the Planning Scheme.

33 To support this submission, Mr Hooper called planning evidence from Mr Matt Ryan, who gave evidence on oath. In summary, Mr Ryan gave evidence that:

• He was employed as the Planning Manager at the predecessor Council to Banyule Council from 1986 to 1995, and also has lived long term relatively close to Ivanhoe;

• As a Council planner, he dealt with the refurbishment of the subject shop during 1990 or possibly 1991 (Mr Ryan could not be definitive, but indicated 1990 seemed right);

• He specifically recalled (as part of dealing with this refurbishment proposal) the existence of the V-Board sign on the front of the shop;

• Having left Council, he then acted for the owner of the subject shop in relation to 1997 and 1999 permit applications, although neither of these applications specifically involved signage matters.

34 It was common ground at the hearing that the search of Council records came up "blank" in terms of any previous permits issued for signage. Mr Ryan indicated that from his experience as an ex-Council employee, there is a real possibility that such permits might have been granted but then the Council file(s) might have been lost or discarded.

35 In addition to relying on Mr Ryan's evidence, Mr Hooper also urged me to give weight to what he described as the "presumption of regularity". Following Mr Hooper's thinking, the reality is that the V-Board sign is there, and there is no history of complaints about same from Council, from which can be inferred that that the sign either has been there for many years and/or a proper planning permit must have been granted for the V-Board sign at some stage. Particularly given the recent permit issued for the re-painting of the front of the subject shop to a suitable heritage colour, Mr Hooper rhetorically asked why any alleged irregularities with the V-Board sign were not raised at this time.

36 In response, Council's main submission here was to rely on the Allom Lovell Banyule Heritage Places Study dated July 1999, which includes at page 451 the contentious photo of the subject shop (without any V-Board sign). Council put to me that this photo is strong evidence that the subject shop did not have any V-Board sign as at circa 1999, and accordingly there is no chance that the "15 year rule" under Clause 63 can be satisfied. Following this submission, there is no existing use rights for the V-Board sign and in fact it has been erected unlawfully by the owner.

37 I note here the follow-up evidence provided by Council after the hearing (as I had provided for) regarding the status of the contentious photo, including the letter dated 21 February 2005 from Robyn Riddett of Allom Lovells.

38 Having considered the relevant submissions and evidence, my findings are that:

• As a starting point, I do not accept Mr Hooper's submission that I should have regard to a "presumption of regularity" in the absence of conflicting information. Rather, I consider that if the Applicant wishes to rely on existing use rights and Clause 63 and Council is contesting this situation, the onus is on the Applicant to provide me with convincing evidence that the V-Board sign has existed on the front of the subject shop for at least 15 years;

• It is common ground that the Council files are silent in terms of any evidence whether a permit has ever been granted for the V-Board sign;

• In relation to the evidence of Mr Ryan, I accept that Mr Ryan gave bona fide evidence regarding his best memory of the existence of the V-Board sign as at 1990 or possibly 1991. However, in terms of the weight which I should give to this evidence from Mr Ryan, I consider that only limited weight should apply here, given the major passage of time involved (ie even a person with a good memory is "stretched" by trying to recall the detail of a shop as that shop existed 15 years ago). In terms of "weight given to the evidence", it also goes against Mr Ryan that his dealings with the subject land as a Council officer did not specifically involve signage but more the general redevelopment of the shop. Hence one would expect that Mr Ryan would have been less familiar at that stage with the nature of the signage on the frontage of the subject shop;

• I also need to balance the evidence of Mr Ryan against the photo of the frontage of the shop from page 451 of the Allom Lovell Banyule Heritage Places Study dated July 1999. Given the contents of the letter from Robyn Riddett dated 21 February 2005 and noting that Allom Lovell is a major and well known firm of heritage consultants, there seems substantial evidence here that the contentious photo was taken by someone from Allom Lovells at some stage during the 1997-July 1999 period that the Study was being produced. This photo does not show any V-Board on the front of the subject shop;

• When the factors above are taken into account together, I am not satisfied that an adequate case has been made out that there are existing use rights associated with the V-Board sign.

39 Given the finding I have made on this "existing use rights" issue, it follows that the main issue with the V-Board sign becomes whether it can be justified on the ordinary planning permits.

40 To remove any doubt, the fact that the V-Board sign has already been built is neither an advantage nor a disadvantage in terms of my assessment of its planning merits. The main practical issue here is simply that I have had the opportunity to view how the V-Board sign sits in its context.

41 In relation to the planning merits of the V-Board sign, in summary, the evidence of Mr Ryan was that:

• It was conceded by Mr Ryan that the relevant planning policies discourage V-Board signs (, in particular, see the Banyule City Council Outdoor Advertising Policy August 2001 - Section 3 dealing with "Signs in Ribbon Shopping Centres", which lists V-Board signs as a "discouraged feature");

• However Mr Ryan put to me that V-Board signs are a relatively common feature of strip shopping centres (ie there are a few in most strip shopping centres);

• In his view the V-Board sign here does not have any material detrimental impact on the heritage features of either the subject shop or the adjoining shops. In this regard, Mr Ryan's evidence was that the sign is relatively innocuous, in that it is not blocking any significant view lines, it is not very noticeable to passing pedestrians or drivers, and that it is of no great consequence that the V-Board sign sits in front of windows on the façade since these windows are an unremarkable feature of the subject shop's façade;

• In the context of the other "Blockbuster video" signage on the leading edge of the veranda or below the veranda (which was not a matter for review in this appeal), Mr Ryan's evidence was that the V-Board sign sits comfortably with this other signage, and that the overall signage proposed is reasonable in terms of both its appearance and the amount of signage involved.

• There is already substantial signage located on the leading edge of the veranda and below the veranda; with the practical result that the V-Board sign is creating a "cluttered" signage situation that is unsightly and contrary to the Heritage Overlay and applicable planning policies and guidelines. On this point, Council put to me that the other signage needs to be assessed by taking into account not only the area occupied by words or the ticketing but also the area coloured with the "blockbuster corporate blue";

• The V-Board sign is specifically discouraged by the relevant planning policies and guidelines for good reasons. In the situation here, Council submitted that the V-Board sign blocks vistas of other shops when looking up and down this side of Upper Heidelberg Road;

• In relation to the Heritage Overlay, Council put to me that the V-Board sign should be rejected both in terms of its negative impact on the appearance of the subject shop (eg blocking views of the windows), and also due to the blocking of oblique views of other nearby shops which also fall within the Heritage Overlay.

43 Having considered both sets of submissions in light of the relevant planning controls/policies and my impressions from my views of the site, on balance I find the submissions of Council more persuasive. I accept that having a V-Board sign above a veranda is visually quite intrusive in a general sense, and more specifically is prejudicial to the public views of the heritage features of both the subject shop and the adjoining shops. In particular, the V-Board sign blocks views of the windows on the subject shop and also blocks oblique views (when looking from the city-side of the V-Board to the north end of the shopping strip) of the handsome façade of the abutting shop north of the subject shop;

44 I agree with Council that it is appropriate to assess the existing non-contentious signage having regard to the area occupied by the Blockbuster corporate blue colour. Taking this approach, I consider that the non-contentious signage on the leading edge of the veranda and below the veranda is already quite prominent compared to other shops in the shopping strip, and that the addition of the V-Board sign starts creating "signage overload" in terms of visual clutter and the signs visually dominating this part of the shopping strip;

45 My conclusion here also relies on the express discouragement of V-Board signs in the Banyule City Council Outdoor Advertising Policy August 2001 - Section 3 dealing with "Signs in Ribbon Shopping Centres". I cannot see any convincing reasons provided by Mr Hooper or Mr Ryan why I should waive this policy non-compliance.

46 I also find unconvincing Mr Ryan's reliance on his understanding that most centres have a few of these type of V-Board signs - this line of thinking has a "good enough for them, good enough for me" flavour that does not address the real issue of whether V-Board signs are acceptable in planning terms. While it is true that there is another V-Board sign just south from the subject V-Board sign, on the same side of the road, I consider this does not greatly add to the Applicant's case here since "two wrongs do not make a right" and the clustering of the two V-Board signs close together to me exacerbates their unsightly and detrimental role in the shopping strip.

47 Permit Condition 1(a) does not call for the removal of the proposed façade sign (which will sit flat against the upper part of the façade and has not yet been installed) but more requires certain modifications to that sign, as follows.

(a) The internally illuminated above veranda business identification sign (Sign 1) to be:

(iii) aligned to be parallel to the building parapet.

48 I have had regard here to the photo image on the upper part of page 7 of Mr Ryan's submission, showing what the proposed façade sign would look like, including using a heritage cream type colour instead of the current purple.

49 The grounds of appeal provided by the Applicant indicate that the Applicant has no problem aligning the sign to be parallel with the building parapet. Hence the real issue here is whether the sign should be reduced by about one-third in size and/or non-illuminated.

50 Mr Ryan's evidence here (as I have already alluded to) is that the total amount of signage proposed is very reasonable, that the proposed sign will sit comfortably in its façade location, and that in these circumstances there is no good reason to reduce the sign of the façade sign by one-third. His approach here included his view that, when assessing the total area of all signs on the front of the shop, one should measure the area of the words and ticketing but not the "corporate blue" colouring. I have already indicated above that I do not accept this approach.

51 In relation to the proposed illumination of the façade sign, Mr Ryan's view was that such illumination was reasonable per se given the context of a vibrant strip shopping centre such as this. However in a spirit of compromise, Mr Hooper indicated that the Applicant would be prepared to restrict the lighting of the V-Board sign and the façade sign just to those hours that the shop is in operation. However Mr Hooper argued that the below-veranda illuminated signs should be able to stay on after-hours, for security and "window shopping" purposes - I see merit in this submission in relation to the below-veranda illuminated signs.

52 Council sought to justify the requirement to reduce in size and avoid illumination of the façade sign on the basis that the façade sign would be visually dominant if left in its full proposed size, which would be particularly inappropriate given the heritage sensitivities associated with the subject façade. Council reiterated its concern that the overall level of signage seems excessive and overly cluttered if the façade sign is left unchanged in size, and Council submitted that the illumination of the façade sign would be inappropriate and unnecessary given the nature of the other signage in the shopping strip and the heritage issues involved.

53 On balance, I accept Council's submissions that it is appropriate that the size of the proposed façade sign be reduced by about one-third. I agree with Council that the overall levels of signage on the front of the shop will be visually overbearing and unduly cluttered if the proposed façade sign is left at its full proposed sign. I also have concerns that, without a one-third reduction in its size, the proposed façade sign will detract from the heritage character of the façade and (with the Blockbuster corporate blue)will look "garish" relative to comparable façade signs in the shopping strip.

54 On the other hand, having viewed the shopping strip at night time, I can see other precedents for the façade sign being illuminated at night. Accordingly, I consider that allowing the illumination of the proposed façade sign (in its reduced form) is acceptable, on the basis that I consider allowing same will have no undue visual amenity impacts, nor will it unreasonably detract from the heritage features of the shopping strip. Rather, I can see a good argument that allowing some (limited) illumination of façade signs at night time does provide some visual interest at night time, and I can see some practical benefit to customers driving past the store if they can know from the state of the lighting of the façade sign whether or not the shop is open.

55 For the reasons set out above, I consider that the conditions imposed by the Council should be largely upheld, but with some exceptions, as set out in my orders above.