Victorian Civil and Administrative Tribunal|2004-09-16

Wyndson PL v Bayside CC [2004] VCAT 1877 (16 September 2004)

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit. Business 1 Zone. Clause 52.05 Advertising Signs. Major promotion sign. State and Local Planning Policy Framework. Zone Purposes. Neighbourhood character. Streetscape. Residential amenity.

The order of the Tribunal is that the decision of the Responsible Authority is affirmed. The Tribunal directs that a permit must not be granted.

1 This is an application to review the decision of the Responsible Authority to refuse permission for a floodlit major promotional sign, proposed to be constructed on the roof of an existing building fronting onto Nepean Highway in Hampton East. The Responsible Authority issued a Notice of Refusal to Grant a Permit for the following reasons:

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

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

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

* The proposal would have a significant visual impact on the Nepean Highway corridor.

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

* The proposal is for a promotional sign not related to any business conducted on the land.

2 The parties at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality.

3 The proposal is to erect a floodlit major promotion sign on the roof of an existing building on Nepean highway at Hampton East. The proposed sign is a double sided sign, in a V formation and the area of each face of the sign is 42.41 square metres.

4 In 1997 the then Administrative Appeals Tribunal in Appeal No. 1997/27564 Bartholomew & Ors v Bayside CC considered an earlier proposal for a major promotion sign at 928 Nepean Highway, in that case the Tribunal overturned a decision of the Responsible Authority to grant a permit for the sign. The important differences between the earlier application and the current application, are the size of the sign, and the fact that because the subject land now encompasses the whole building at 926-928 Nepean Highway, the sign has been relocated some 3 to 4 metres further towards the north west. The area of the sign is approximately half that of the 1997 sign.

5 The following extract from Mr Bile's evidence to the Administrative Appeals Tribunal in the Bartholomew case provides a still current description of the site and locality:

The subject site is located on the western side of the Nepean Highway and forms the southern boundary of the Moorabbin Strip Shopping Centre. The two storey building upon which the advertising sign is proposed to be erected is located in a relatively prominent position that derives from its rather open forecourt provided by the carpark to the south and the road bridge that crosses the railway line to the south of the building at 928 Nepean Highway ... The subject site forms a boundary between the residential interface to the west and south and at the same time is the key entry building from the southern approach to the Moorabbin Shopping Centre.

The Nepean Highway is a divided highway in the vicinity of the subject site. It provides for both highway oriented commercial uses including a number of car dealerships to the south of the building and then, once the shopping strip is entered, a series of small shopfronts fronting a service street that runs parallel to the Nepean Highway.

The landscape is of a generally flat, wide and open condition and Nepean Highway is somewhat elevated above the street condition on the western side of the highway. The effect is to give almost panoramic views through the buildings to the Bayside suburbs to the west.

Signage within the shopping strip is generally of the type that is advertising shops and activities within the centre although there are a number of promotional signs on larger buildings at the entry points to the shopping strip. This includes a floodlit panel sign on the corner of South Road and Nepean Highway and opposite the appeal site on the eastern side of Nepean Highway. In this context the proposed sign is not a first intrusion into this centre.

6 More recently the Tribunal in Application for Review P1177 2004 Rococco Holdings v Bayside CC considered an application for another roof mounted promotional sign on a building located towards the South Road end of this shopping strip. The Tribunal in that case overturned the decision of the responsible authority and directed the grant of a permit concluding:

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.

7 Nepean Highway is an environment which has traditionally included large promotional signs, and there are such signs in the commercial precinct located on the intersection of Nepean Highway and South Road. In such a context new promotional signs may be appropriate, and this was indeed the conclusion of Ms Naylor in the Rococco Holdings decisions referred to above. However, in that case Ms Naylor concluded that views to the proposed sign from the nearby residential areas were distant views and that these views to the sign were reasonable in the context of the locality.

8 However, the subject land exists within a very different context. Residential properties, particularly residential properties in Henrietta Street, are very proximate to the building upon which the sign is to be constructed. Indeed, the closest residential property in Henrietta Street, is a group of villa units, which face towards the subject land and building. In the Bartholomew case, Mr Gilfillan concluded that the proposed sign would be visually intrusive from these residential properties and would adversely effect their amenity.

9 While it is true that the presently proposed sign is not as large as that in the Bartholomew case, and it has been relocated some 3 to 4 metres further to the north west, it will remain visually intrusive from the perspective of the residences to the south. I, like Mr Gilfillan am of the view that the effect of the proposed sign on the visual amenity of the residential properties to the south is unacceptable, and a permit should not be granted.

Environment Act 1987

Wyndson PL v Bayside CC [2004] VCAT 1877

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Wyndson PL v Bayside CC [2004] VCAT 1877 (16 September 2004)

Parties

Legislation Cited (1)