JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL 

STREAM	:	DEVELOPMENT & RESOURCES 

ACT	:	PLANNING AND DEVELOPMENT ACT 2005 (WA) 

CITATION	:	RED ROOSTER FOODS PTY LTD and CITY OF MANDURAH [2010] WASAT 98 

MEMBER	:	MR D R PARRY (SENIOR MEMBER) 

HEARD	:	DETERMINED ON THE DOCUMENTS 

DELIVERED	:	9 JULY 2010 

FILE NO/S	:	DR 81 of 2010 

BETWEEN	:	RED ROOSTER FOODS PTY LTD
Applicant
 
AND
 
CITY OF MANDURAH
Respondent 

Catchwords:
Town planning - Preliminary issue - Advertising sign - 'Existing advertisements' - Pole sign lawfully erected in 1983 advertising fast food outlet - Pole sign removed when found to be unsafe due to rusting of baseplate and fixing bolts - Development application for re-erection of pole sign - Local planning scheme provision states that advertisements which were lawfully erected, placed or displayed prior to the approval of the Scheme may 'continue to be displayed or to be erected and displayed' - Whether development approval is required for the re-erection of the pole sign 
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 1.6, cl 1.6(b), cl 6.2.1.1, cl 6.2.2.1, cl 6.2.2.1(a), cl 6.2.2.1(b), cl 6.2.6.1, cl 7.1.1, App 1
Planning and Development Act 2005 (WA), s 252(1) 
Result:
Development approval is not required for the re-erection of the pole sign 
Category:    B 

Representation:
Counsel:
Applicant	:	Mr JCW Skinner
Respondent	:	Ms F Mullen (Public Sector Employee) 
Solicitors:
Applicant	:	Jackson McDonald
Respondent	:	N/A 

Case(s) referred to in decision(s):

Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132

REASONS FOR DECISION OF THE TRIBUNAL:  
Summary of Tribunal's decision
1		In about 1983, Red Rooster Foods Pty Ltd lawfully erected a 13 metre high pylon sign on its property in Halls Head.  In November 2009, Red Rooster Foods Pty Ltd removed the sign because there was a danger of the baseplate or the bolts fixing the pylon to the baseplate failing and the sign falling over.  In December 2009, Red Rooster Foods Pty Ltd applied to the City of Mandurah for development approval to re­erect the pylon sign.  In February 2010, the City of Mandurah refused to grant development approval.
2		In March 2010, Red Rooster Foods Pty Ltd sought review by the Tribunal of the decision of the City of Mandurah.  Having obtained legal advice, Red Rooster Foods Pty Ltd contended that it did not, in fact, require development approval to re­erect the pole sign, because cl 6.2.2.1 of the City of Mandurah Town Planning Scheme No 3 authorised an advertisement which was 'lawfully erected, placed or displayed prior to the approval of this Scheme' to 'continue to be displayed or to be erected and displayed'.
3		The Tribunal determined that, on its proper interpretation, this provision authorises the re­erection of an advertisement which was lawfully erected, placed or displayed prior to the scheme and was subsequently removed for safety reasons.  This interpretation was consistent with the scheme objective to secure the amenity and health of residents and visitors and another provision of the scheme.  Red Rooster Foods Pty Ltd did not, therefore, require development approval to re­erect the pole sign.
Background
4		In about 1983, Red Rooster Foods Pty Ltd (Red Rooster) established a fast food outlet at No 4 Peelwood Parade, Halls Head (site).  At that time, Red Rooster lawfully erected a 13.0 metre high pylon sign advertising the fast food outlet on the site adjacent to the intersection of Peelwood Parade and Guava Way (original pole sign).
5		In May 2009, a development application was made on behalf of Red Rooster to the City of Mandurah (City or Council) for approval under the City of Mandurah Town Planning Scheme No 3 (TPS 3 or Scheme) of renovations to the Red Rooster premises on the site (May 2009 application).  The May 2009 application sought approval in respect of internal fittings, replacement of a roof sign on the building with a new roof sign and replacement of the original pylon sign with a new pylon sign of the same height but with a different design (replacement pylon sign).  On 13 May 2009, the Council approved the application subject to four conditions, including the following:
The development shall be carried out and fully implemented in accordance with the details indicated on the stamped approved plan(s) unless otherwise required or agreed in writing by the City of Mandurah, including the following modifications illustrated in red ink:
•	the proposed new pylon sign shall not exceed a maximum height of 6 metres above the natural ground level immediately below the sign.
6		In September 2009, a fresh development application was made on behalf of Red Rooster to the City for approval under the Scheme to erect the replacement pylon sign (September 2009 application).  On 26 November 2009, the Council refused the September 2009 application.
7		In November 2009, Mr Douglas Brown, an employee of ASI Sign Installation & Maintenance Pty Ltd, was asked to inspect the original pylon sign.  Mr Brown noticed that there was some movement in the pylon.  He arranged for the area at the base of the pylon to be excavated in order to expose the baseplate which had been buried as part of the landscaping of the site.  When the baseplate was exposed, Mr Brown observed rust on the baseplate and on the bolts fixing the pylon to the baseplate.  Mr Brown gave the following evidence:
The baseplate should not have been buried as it was, because if it is buried then the moisture in the soil can cause rusting, as had happened in this case.  There was also movement of several of the fixing bolts as a result of the rusting. …
In my opinion, the extent of the rust and the movement in the pylon or pole indicated that the pylon sign had been structurally weakened and was unsafe.  In particular, there was a danger of the baseplate or the bolts fixing the pylon to the baseplate failing and the sign falling over.
8		When Mr Brown reported the matter and his concern that the original pylon sign was unsafe, Mr Dennis Delaney, the National Property Development Manager of Red Rooster, gave instructions for the original pylon sign to be removed immediately.  The original pylon sign was then removed.
9		In December 2009, a development application was made on behalf of Red Rooster to the City for approval under the Scheme for the re­erection of the original pylon sign (December 2009 application).  On 24 February 2010, the Council refused the December 2009 application.
10		On 18 March 2010, Red Rooster sought review by the Tribunal of the City's decision to refuse the December 2009 application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
Preliminary issue
11		Although, at the time when the December 2009 development application was made to the City, both Red Rooster and the City considered that development approval was required under TPS 3 for the re­erection of the original pylon sign, after obtaining legal advice following commencement of the proceeding, Red Rooster contended that development approval is not required for the re­erection of the original pole sign in consequence of cl 6.2.2.1 of the Scheme.  At the first directions hearing in the proceeding, held on 7 April 2010, a preliminary issue was identified for determination by the Tribunal which can be formulated as follows:
Is development approval required under TPS 3 for the re­erection of the original pylon sign at the site?
Parties' contentions
12		Red Rooster submitted that, although dealt with for convenience in one application for development approval, the development the subject of the May 2009 application comprised several separate and distinct aspects, each of which was capable of being carried out on its own.  In particular, the proposed replacement of the original pylon sign with the replacement pylon sign was a separate and distinct development from the internal refurbishment of the Red Rooster premises or the replacement of the existing roof sign with a new roof sign.  Red Rooster submitted that it has not carried out the replacement of the original pylon sign with the replacement pylon sign as proposed in the May 2009 application or as conditionally approved by the Council on 13 May 2009.  Rather, relying on the evidence of Mr Brown and Mr Delaney referred to earlier in these reasons, Red Rooster submitted that the original pylon sign was removed in November 2009, because it was unsafe.
13		Red Rooster submitted that it may lawfully re­erect the original pylon sign, following replacement of the rusted baseplate and fixing bolts, without the need to obtain further development approval under TPS 3, because the original pylon sign is an 'existing advertisement' that may continue to be erected and displayed under cl 6.2.2.1 of TPS 3.  Clause 6.2.2.1 of the Scheme is in the following terms:
6.2.2.1	Advertisements which:
(a)	were lawfully erected, placed or displayed prior to the approval of this Scheme; or
(b)	may be erected, placed or displayed pursuant to a licence or other approval granted by the Council prior to the approval of this Scheme;
hereinafter in this Clause referred to as 'existing advertisements', may, except as otherwise provided, continue to be displayed or to be erected and displayed in accordance with the licence or approval as appropriate.
14		The term 'advertisement' is defined in App 1 of the Scheme to include, among other things, 'any hoarding or similar structure used, or adapted for use, for the display of advertisements'.  The term 'advertisement', therefore, includes not only the representation, but also the structure used to display the representation.
15		In contrast, the City contended that, as the original pylon sign has been removed from the site, Red Rooster remains obligated under the Scheme to obtain the prior approval of the Council in order to re-erect the original pylon sign.  The City referred to cl 6.2.1.1 and cl 7.1.1 of TPS 3, which state as follows:
6.2.1.1	For the purpose of this Scheme, the erection, placement and display of advertisements and the use of land or buildings for that purpose is development within the definition of the [PD] Act requiring, except as otherwise provided, the prior approval of the Council.  Planning approval is required in addition to any licence pursuant to Council's Signs, Hoarding and Bill Posting By­Laws.
…
7.1.1	In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, except as otherwise provided, requires the prior approval of the Council in each case.  Accordingly, no person shall commence or carry out any development, including a change of use of any land, without first having applied for and obtained the planning approval of the Council pursuant to the provisions of this Part.
16		The City submitted that cl 6.2.2.1(a) of TPS 3 applies only to the continuation of lawfully erected signs, not to the re­erection of previously lawfully erected signs.  As the original pylon sign has been removed from the property, 'it is considered that the original pylon sign is discontinued'.  The City also submitted that cl 6.2.2.1 of the Scheme 'applies only to existing advertisements, which the original pylon sign is not[,] given its absence from the [site] since November 2009'.
17		Finally, the City submitted that the May 2009 application, which sought approval to replace the original pylon sign with a replacement pylon sign, and the September 2009 application, which sought approval to erect the replacement pylon sign, are each inconsistent with Red Rooster 'having any intention to re­erect the original pylon sign at the time it was removed'.
Is development approval required to re-erect the original pylon sign?
18		Red Rooster is correct in its submission that the May 2009 application comprised several separate and distinct developments.  It was open to Red Rooster to elect not to carry out the replacement of the original pylon sign with the replacement pylon sign because of the limitation imposed by condition 1 of the Council's development approval.  Although Red Rooster did not seek review of condition 1 of the development approval, it lodged the September 2009 application to achieve the same result, namely, approval for the replacement of the original pylon sign with the replacement pylon sign of the same height.
19		Furthermore, the evidence of Mr Brown and Mr Delaney referred to earlier in these reasons demonstrates that the original pylon sign was removed in November 2009, not in order to carry out the May 2009 application as approved on 13 May 2009, but rather because the original pylon sign had become unsafe.  Contrary to the City's submission, the May 2009 application and the September 2009 application are not inconsistent with Red Rooster having an intention to re­erect the original pylon sign at the time it was removed.  As Red Rooster submitted, at the time when the May 2009 application and the September 2009 application were made, its intention was, if the relevant application was approved as proposed, to remove the original pylon sign and replace it with the replacement pylon sign.  However, the May 2009 application was approved subject to a condition substantially reducing the height of the pylon sign proposed by Red Rooster.  The September 2009 application was undetermined at the time that the original pylon sign was removed in November 2009 and was, shortly thereafter, refused by the Council.
20		In any case, whether Red Rooster had an intention, when removing the original pylon sign in November 2009, to re­erect it is irrelevant in determining whether, as Red Rooster contends, it is authorised to re­erect the original pylon sign under cl 6.2.2.1 of TPS 3.  The question to be decided is whether, on the proper interpretation of that provision, an advertising sign that was lawfully erected prior to the commencement of the Scheme can be re­erected after it was removed for safety reasons.
21		The Tribunal considers that, on its proper interpretation, cl 6.2.2.1(a) of TPS 3 authorises the re-erection of an advertisement which was lawfully erected, placed or displayed prior to the approval of the Scheme and was subsequently removed for safety reasons.  As Red Rooster submitted:
It cannot reasonably be the intention of cl 6.2.2.1(a) to preclude the taking of action to remove or repair an unsafe sign, or require repairs to be undertaken with the sign in place, in order to preserve continued display rights.
22		In Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132 at [25], McLure JA, with whom Steytler P and Pullin JA agreed at [1] and [54], respectively, observed that:
… planning schemes are not drawn with the precision of Acts of Parliament and should be construed broadly rather than pedantically and with a sensible practical approach.
23		Importantly, the purpose of the Scheme includes to 'improv[e] human amenity' (cl 1.6) and the general objectives include (cl 1.6(b)):
To secure the amenity and health of the inhabitants living within, and visitors to, the district.
24		Read in the context of the Scheme purpose and objectives, the words 'continue to be displayed or to be erected and displayed' encompass the re­erection of an advertisement which was lawfully erected, placed or displayed prior to the approval of the Scheme and was subsequently removed for safety reasons.  This interpretation is further supported by cl 6.2.6.1 of the Scheme, which states as follows:
Where, in the opinion of the Council, an advertisement has been permitted to deteriorate to a point where it conflicts with the objectives of the Scheme or it ceases to be effective for the purpose for which it was erected or displayed, Council may by notice in writing require the advertiser to:
(a)	repair, repaint or otherwise restore the advertisement to a standard specified by Council in the notice; or
(b)	remove the advertisement.
25		Clause 6.2.6.1 of the Scheme applies to advertisements erected, placed or displayed both before and after the commencement of the Scheme.  As noted, the objectives of the Scheme include to secure the amenity and health of inhabitants and visitors.  An advertisement that has become unsafe conflicts with this objective of the Scheme.  Clause 6.2.6.1, therefore, clearly contemplates the removal, repair and re­erection of advertisements that have become unsafe.
26		The City's reference in its submissions to 'discontinuance' and to the term 'existing advertisements' is misplaced.  Clause 6.2.2.1 of the Scheme does not refer to discontinuance.  The term 'existing advertisements' does not require an interpretation of the clause under which an advertisement removed for safety reasons ceases to fall within the ambit of the provision.  The clause simply uses the term 'existing advertisements' to refer to advertisements which were lawfully erected, placed or displayed prior to the approval of the Scheme or may be erected, placed or displayed pursuant to a licence or other approval granted by the Council prior to the approval of the Scheme.  Such an advertisement remains an 'existing advertisement' under cl 6.2.2.1 of the Scheme, even if it has been removed from its site.  Furthermore, in the circumstances of this case, the absence of the original pylon sign from the site since November 2009 is explicable, because, when the December 2009 application was made for the re­erection of the pylon sign, Red Rooster understood that prior development approval was required.  While Red Rooster subsequently changed its position, the issue of whether development approval is required has only been determined by this decision.
27		Finally, the agreed facts and other evidence in relation to the preliminary issue do not disclose whether the original pylon sign was lawfully erected in accordance with a development approval granted by the City prior to the Scheme or without development approval at a time when development approval was not required for it under the applicable planning instrument.  If it was the former, then the re-erection of the original pylon sign would also be authorised by cl 6.2.2.1(b) of the Scheme which refers to advertisements which 'may be erected, placed or displayed pursuant to a licence or other approval granted by the Council prior to the approval of this Scheme'.  Although a sign may have been erected, placed or displayed pursuant to a development approval granted by the Council prior to TPS 3, the development approval taken up by the erection, placement or display of the advertisement would not generally lapse or cease to be of legal effect when the advertisement was originally erected, placed or displayed (subject to a term or condition of the development approval or a provision of TPS 3 to the contrary).  The development approval would therefore continue to authorise the erection, placement or display of the advertisement and cl 6.2.2.1(b) of the Scheme would recognise the right to re­erect the advertisement.
Conclusion and orders
28		For these reasons, the preliminary issue is answered as follows:
Development approval is not required under TPS 3 for the re­erection of the 13.0 metre high pylon sign originally erected in about 1983 on the site.
29		The Tribunal makes the following orders:
1.	Development approval is not required under the City of Mandurah Town Planning Scheme No 3 for the re­erection of the 13.0 metre high pylon sign originally erected in about 1983 at No 4 Peelwood Parade, Halls Head.
2.	The proceeding is adjourned to a directions hearing at 10.30 am on 23 July 2010.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________
MR D R PARRY, SENIOR MEMBER