[2001] VCAT 1840

The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

Mr Kelvin Whitford for the applicant for review/permit applicant.

Application under Section 77 of the Planning and Environment Act 1987 (the Act) to review a decision to refuse a permit.

Yarra Planning Scheme, Business 1 Zone with Heritage Overlay Area.

1. The proposed sign by virtue of its size, location and prominent position will represent a significant visual intrusion to the area.

2. The proposed sign is contrary to the Municipal Strategic Statement and Council's adopted Advertising Signs Code in terms of its projection above the top of the existing building and impact on the streetscape.

3. The proposed sign does not satisfy the purpose and guidelines of the Heritage Overlay area pursuant to Clause 43.01 of the Yarra Planning Scheme.

1. The proposed sign will not represent a significant visual intrusion to the area.

2. The proposed sign is in accordance with state planning guidelines.

1. This is an application to review a decision of the City of Yarra.

2. At the commencement of the hearing Mr Whitford advised that the dimensions as shown on the elevation were in fact incorrect. The correct dimension of the sign is 12.66m x 3.35m plus a .65m x 12.66m cladding below the sign.

3. It is proposed to mount the sign on the roof of a building so that it is visible to western bound traffic on Bridge Road. The sign is located at the front of the site, is to have a total advertising area of 42.4m2 and its height above ground level is to be 12 metres. It is to be externally illuminated by four lights on the roof at the east side of the building. The sign is to be available for lease and will not relate to the purpose of the building on which it is erected.

4. I have adopted Mr Whitford's description and this reads as follows:

The subject property is located on the northern side of Bridge Road some 10m west of Gardiner Street and is one of a series of commercial properties along this section of the Bridge Road. Existing improvements consist of a re-modelled two storey brick building with a modern glass facade occupied by N.C. Furniture at street level and Varsity Prints in the upper level.

To the east is the well known E.J. Ainger auction rooms and continuing across Gardiner Street the properties are all occupied commercially by Snap Printing, Beaurepaires Tyres, Betta Electrical (Seconds), then a large four storey development comprising Dare Retail Showrooms and a series of apartments above.

To the west is a part two-storey, part single storey building occupied by Reece Plumbing followed by a small single storey dog washing business and a series of double and single storey commercial buildings.

The southern side of Bridge Road consists of mostly two storey Victorian buildings all commercially occupied. The upper levels of most of these buildings retain their period characteristics however the street levels have all been substantially altered and "modernised" at various times in a variety of styles.

The rear of the subject site abuts Palmer Street, which is developed for residential use on the northern side with some single dwellings and some blocks of flats.

The immediate environs can be characterised as wholly commercial mixed scale, generally substantial large-scale properties prominently identified with large-scale signage. There is no uniformity of architectural style or character and this is clearly evident in the photographs submitted herewith."

5. I have adopted relevant sections of Mr Temple's submission in which he describes the planning controls and provisions. These excerpts are as follows:

The State and Regional sections of the Yarra Planning Scheme contain policies, which are applicable to the proposed development.

Within Council's Municipal Strategic Statement, the subject site is located in a Secondary Retail/Office Area under the Retail and Activity Centres Framework...

The retail identity of Bridge Road is defined under Element 4 of the MSS as a community and local convenience level shopping and business services. The site is located in a Heritage Area Overlay...

Element 1 of the MSS establishes an Urban Design Framework.

The subject site and properties to the south, east and west are located within a Business 1 Zone. The site is covered by a Heritage Area Overlay with Bridge Road also located in Road 1 Zone (Category 1) under the Yarra Planning Scheme.

Pursuant to Clause 43.01-1 of the Yarra Planning Scheme, a planning permit is required to construct or display a sign on land located in a Heritage Area. A planning permit is also required pursuant to Clause 52.05 of the Yarra Planning Scheme. Signs within a Business 1 zone are included in Category 1 of Clause 52.05 of the scheme.

Clause 52.05 of the Yarra Planning Scheme outlines the provisions and decision guidelines relating to advertising signs. Before deciding on the application to display a sign, the Responsible Authority must consider:

* 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 a 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 need for identification and the opportunities for adequate identification on the site and nearby.

* 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.

* The effect of the sign on the safety, warning and security of premises and public areas.

* The effect of the sign on the appearance and efficiency of a road, railway, waterway or other public way, having regard to the sign's colour, brightness and location.

* The view of the Roads Corporation if the sign is to be animated, floodlit, internally illuminated, panel, reflective or sky sign within 60 metres of a main road that is a freeway, state highway, metropolitan bridge or other road declared under the Road Transport Act 1983.

A planning permit is required to display a major promotional floodlit sky sign as it is classified as a Section 2 use in Category 1 of Clause 52.05-7 of the Yarra Planning Scheme.

The only council policy relevant to this application is the City of Yarra's Advertising Code.

The Code is a related policy document in the Urban Design Framework section of Council's Municipal Strategic Statement.

The subject site is located in the Commercial Precinct.

The site is also covered by the Cultural Heritage Significance Overlay section of the Code."

6. Following receipt the application was advertised and no objections were received. It was referred to the Council's heritage adviser who indicated the major promotion sign was inappropriate because of its effect on the cultural heritage of the area. It was also referred to VicRoads under Clause 52.05-2 of the scheme which advised that it had no objections to the proposal. The Council's development assessment panel assessed the application and determined to issue a notice of refusal to grant a permit on the grounds as listed. Following that the applicant made an application to review on the grounds as listed.

7. The proposed sign is to be located in a Business 1 zone with a heritage overlay. The overlay of the north side of Bridge Road ceases at Gardiner Street but continues through to Burnley Street on the south side. This Mr Whitford submitted places the proposal right on the edge of the Heritage Overlay. I think that is immaterial, the fact is that the proposed area is covered by the overlay and consequently due consideration must be given to the heritage value of this area. In particular the south side of Bridge Road has a line of relatively intact Victorian buildings that, while the shop fronts have been substantially modified, still retain their overall traditional appearance. These buildings are not cluttered by excessive signs whereas on the north side there are many signs, particularly on building facades. There are also a number of above building promotional signs. It is within this context that Mr Whitford argued that the proposed major promotional sign would sit comfortably in the streetscape. He argued that "the proposed sign will contribute to the vitality of this suburban and commercial strip".

8. He also argued that it was surrounded by many large scale advertisements so that the sign will not create or add to clutter in the area. He submitted that while the sign would sit some 2 metres above an adjoining building, this building as a backdrop would essentially reduce any intrusion of the sign into the skyline. He further argued that large scale signs are an established element in this streetscape and the sign would be consistent within the commercial built form of Bridge Road.

9. I have not repeated all that Mr Whitford said or submitted in writing or for that matter the Council's submission. The key elements here are clutter of the streetscape and the significance of the heritage overlay. I think the argument that there are already many signs within the streetscape and that this one will not have a major impact particularly as there are few signs on the existing building are rather tenuous ones. It is true that signs can add to the vitality of a commercial or business area and that if a major promotional signs are going to be placed anywhere they should be placed in commercial, business and industrial precincts. However, in many instances in this streetscape the signs relate to the building on which they are placed. There are of course a number of promotional signs that do not relate to the buildings on which they are situated, however these are in the minority. It is also possible that there is already an elegant sufficiency of signs along this section of Bridge Road and these already give an indication of clutter. In my opinion this sign will do nothing for the streetscape or the amenity of the area. It will probably not advertise any business situated in this area. It is purely a commercial structure to be leased out for perhaps a great variety of advertisements over its lifetime. From that point of view it is an unnecessary imposition on the streetscape.

10. On the issue of the significance of the Heritage Overlay, the Council's Heritage Adviser, in a comment to the Council officers, indicated that the sign was inappropriate because it would adversely affect the cultural heritage significance of the area. Now that adviser was not present to have the comments tested in evidence. However, it is obvious that the sign would have an impact on the total streetscape in particular the Victorian buildings on the south side of Bridge Road. This is a difficult call as the northern side of the streetscape is already significantly affected by a great variety of signs on buildings, however only a few of these are above the rooftops of buildings. There is in my view a distinct difference between signs on buildings and signs above buildings. This sign is a very large one being almost 50 sq. metres in area and will not in my view be respectful of the cultural and architectural heritage of the area.

11. The second ground of refusal related to the MSS and the Council's Advertising Signs Code. Mr Whitford argued that the sign did in fact meet the objectives and policies of the MSS and that the Signs Code that, because it is not an incorporated document, has no force or effect. In support of his argument he quoted Application for Review No. 1999/80035, Vincent Pty Ltd v City of Kingston and C. A. Kelly. The Tribunal in this matter proposed to give no weight to Kingston's draft advertising guidelines and said that is consistent with Tribunal decisions over the years in relation to policies which had not gone through the proper process of public comment and panel examination prior to being incorporated in a planning scheme document.

12. I find from the issues of visual clutter and heritage that the proposed major promotional sky sign will not be appropriate in this location and consequently the responsible authority's decision is affirmed and no permit is granted.