VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference NO. P1051/2020 
Permit no. PP19/00358	

APPLICANT	Ross Hunt Real Estate Pty Ltd	
responsible authority	Boroondara City Council 	
SUBJECT LAND	99-105 Union Road
SURREY HILLS VIC 3127	
WHERE HELD	Melbourne	
BEFORE	S. R. Cimino, Senior Member 	
HEARING TYPE	Hearing 	
DATE OF HEARING	5 October 2020	
DATE OF ORDER	9 October 2020  	
citation	Ross Hunt Real Estate v Boroondara City Council [2020] VCAT 1122	

Order
1	In application no. P1051/2020, the decision of the Responsible Authority is varied.
2	I direct that Planning Permit No. PP19/00358 issued by the Responsible Authority on the 18 June 2020 for land at 99-105 Union Road SURREY HILLS VIC 3127 must not contain condition 1(a) and the Responsible Authority is directed to issue an amended permit. 

S. R. Cimino 
Senior Member			

Appearances
For A1 Drafting 	Mr P. O’Shea, planning consultant, CS Town Planning. 	
For Manningham City Council  	Ms J. Smith, town planner. 	

Reasons
(given orally at the hearing with minor revisions)
1	This matter involves an application under Section 80 of the Planning and Environment Act 1987 to review conditions 1(a) and 1(b) on planning permit no PP19/00358 issued by the Boroondara City Council on 18 June 2020. The permit allows the display of business identification and promotional signage on land at 99-105 Union Road Surrey Hills.
2	Condition 1 on the permit requires the submission of amended plans for endorsement before the development can start. Parts (a) and (b) of the condition require the following changes to the plans before they are endorsed:
(a)	The south-facing upper level business identification sign setback to encroach no further west than the western edge of front chimney and reduced in size to a maximum of 2 metres in height by 3 metres in width;
(b)	Deletion of the six proposed promotional signs (real-estate boards) proposed to be located along the front façade and the fence.
3	The subject land is located on the east side of Union Road, within a local strip centre that runs along that road. Retail and commercial uses generally surround the subject land. 
4	A double storey Victorian building used as a real estate agent’s office occupies the northern two-thirds of the land. A poster promotion sign is affixed to the top half of that building’s southern wall. An at-grade car park associated with a car repair business occupies the southern part of the land. A fence runs along the front boundary of the car repair part of the land. Several signs advertising the sale of properties and one advertising the car repair business are affixed to the front fence with a further two signs affixed to the southern part of the ground floor façade of the Victorian real estate agent’s building.    
5	The permit application seeks permission for the promotion sign affixed to the southern wall of the building, real estate promotion signs affixed to façade of the building and the fence (six signs) and a business identification/promotion sign advertising the car repair business (one sign). 
6	The promotion sign on the southern wall has an area of about 16.5 square metres and is positioned about 4.2 metres above ground level. The top and sides of the sign are framed by the wall. Condition 1(a) seeks to reduce the area of this sign to 6 square metres and for it to be repositioned so that it is not forward of a chimney.
7	Six of the seven signs, those associated with the real estate business, are to be affixed to either the building or the fence. They each measure about 1.2 metres in width and 1.8 metres in height, with an overall area of about 2.2 square metres (each). The sign advertising the car repair business is slightly larger. Condition 1(b) requires the removal of all 6 promotion signs associated with the real estate agent.
8	Under the planning scheme, the land is within the Commercial 2 zone and affected by Heritage Overlay (schedule 532 – Union Road Commercial Heritage Precinct). 
9	Under the zone provisions at clause 32.02-8, the advertising sign category 1 ‘commercial areas’ at clause 52.05 applies. This is a minimum limitation area. The purpose of this category is:
To provide for identification and promotion signs and signs that add vitality and colour to commercial areas.
10	Under the category 1 controls, a permit is required for promotion signs as the area exceeds 8 square metres. Clause 52.05-8 sets out the decision guidelines to consider. These include the sensitivity of the area having regard to heritage values, the compatibility of the signs with the desired character, the cumulative impact of signs on the character of an area including the need to avoid visual disorder or clutter of signs and the consistency with any identifiable outdoor advertising theme in the area. The proportion, scale and form of the proposed sign relative to the streetscape, setting or landscape; the position of the sign, including the extent to which it protrudes above existing buildings; the ability to screen unsightly built or other elements and the ability to reduce the number of signs by rationalising or simplifying signs are also matters to consider.
11	Clause 43.01 sets out the provisions for the Heritage Overlay. Under clause 43.01-1, a permit is required to display a sign within the Heritage Overlay. The purposes of the overlay include implementing planning policy, conservation and enhancement of heritage places including those elements which contribute to the significance of heritage places and to ensure development does not adversely affect the significance of the heritage place.
12	Decision guidelines under the Heritage Overlay require consideration to be given to a  range of matters including the significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place as well as any applicable statement of significance, heritage study, conservation policy and, in particular, heritage design guideline including:
Whether the proposed sign will adversely affect the significance, character or appearance of the heritage place.
13	The relevant statement of significance for HO532 notes that the Union Road commercial precinct is of local historical significance which emerged from the 1880s. The statement notes that the precinct is of local aesthetic/architectural significance presenting a variety of façade and parapet treatments that reflect development from the 1880s to the 1920s. The statement goes on to say that the precinct is additionally significant for demonstrating some of the principal characteristics of the late nineteenth and early twentieth century shopping precincts, including a mix of single and double storey masonry buildings and shopfronts, that retain their early form and fabric. 
14	Some of the signs in question are already on display without a planning permit. In a merits review, the approach to be taken is fairly simple, the applicant should neither receive and advantage or be disadvantaged, rather the approach to be taken is as though the signs had not been erected and the merits considered. 
15	I will now turn to the consideration of the two conditions. 
16	Condition 1(a) requires a reduction in the size of the promotion sign on the southern side wall of the building and it for it to be repositioned. The Council says the sign, as proposed, is not responsive to any of the key issues and strategies set out in clause 21.04-4 of the planning scheme which relates to built form and heritage, or the heritage policy at clause 22.03. The Council notes that the policy at clause 22.03 says that new signage on a heritage building should complement historic character, minimise visual clutter and should not obscure or destroy any architectural features of cultural heritage significance. The Council submits that given the wall is highly exposed, the requirements to reduce its size and to reposition it so that it is setback behind a chimney will reduce the extent to which the sign dominates the streetscape and appearance of the building. 
17	I do not agree with the Council’s view with respect to this condition. The proposed sign is located on a side wall in an elevated position. This is the position where this type of sign has often been placed on buildings dating from much earlier last century. 
18	The sign is positioned to be respectful of the building. It is framed by the wall and is setback away from the front parapet. It does not extend above the roof. 
19	The size of the sign is also acceptable having regard to the height, size and scale of the two-storey wall on which it is mounted. It will not overwhelm the appearance of the building or streetscape. 
20	I do not agree with the Council that the chimney should determine the setback of the sign from the street frontage. They are unrelated elements. The chimney will still be prominent. 
21	I will delete condition 1(a).
22	I have come to a different conclusion about requirements of condition 1(b).
23	The condition requires the deletion of the 6 real estate signs but allows the retention of the sign advertising the car repair business conducted on the southern part of the subject land. 
24	In principal, Mr O’Shea is correct in highlighting the land’s location within a Commercial 2 zone and the minimum limitation controls set out in Clause 52.05. These suggest that there should be a great deal of latitude in terms of allowing signage given the commercial context. However, even in this context, the provisions of clause 52.05 do not say that it’s a free for all in terms of the display of signage. Signage needs to be designed and positioned to consider the impact on the streetscape, the amenity and whether they create visual disorder and clutter. 
25	In this case, the land’s location in the Heritage Overlay is another factor that adds to the layer of matters to be considered. The land’s context within a Heritage Overlay is not a minor consideration, rather, it is quite important. 
26	I am concerned about the way that the signs proposed to be placed on the building. Unlike the larger promotion sign on the side wall, one of the proposed real estate signs covers an architectural feature on the façade, namely, the raised window surround. A heritage plaque covers the lower part of the window itself, while a second real estate sign is to be positioned on the wall immediately to its south. Within a relatively short section of ground floor façade, which I estimate to be about 3 metres, 3 signage elements are proposed.  Given this, I come to the conclusion that this arrangement does not complement the heritage building, creates visual clutter of signage on this part of the building’s façade and, at least in part, intrudes on and obscures an architectural feature, namely the raised surround around the window. 
27	In relation to the signs affixed to the fence to the south of the building, I note that the fence is not of any heritage value. I also accept Mr O’Shea’s submission that the presentation of a car park to the streetscape is somewhat unsightly and does not have a positive impact on the streetscape. 
28	However, the simple fact of the matter here is that the fence forms part of the streetscape in a heritage precinct. The design needs to respond to and be sensitive to that context. 
29	I do not accept that the proposal achieves this. Rather, in addition to the sign advertising the car repair business, the proposal simply seeks to affix 4 signs onto the fence. The combined effect is that within a relatively short distance which I estimate to be about 11 metres (including the building facade and fence), 7 signs (and a plaque) are proposed. 
30	Having regard to the decision guidelines at clause 52.05, I would find it difficult to conclude that this is an acceptable outcome along a primary commercial streetscape. This streetscape is more sensitive given the heritage context. I find that the extent of advertising to be overly dominant, not appropriate, resulting in visual disorder and clutter and detracting from the appearance of a heritage streetscape.  
31	I do not think that the proposal is comparable to the two examples of promotion signs presented by Mr O’Shea which are on the side walls/fences of properties and, as I understand it from the Council, not within a heritage overlay.  
32	I agree with Mr O’Shea’s submission that the view into the car park behind the cyclone fence is not particularly attractive, but I do not agree that the proposal represents an acceptable outcome. 
33	I have considered Mr O’Shea’s suggestion about modifying one sign so that it does not intrude on the window frame, deleting the sign to the south of the window and repositioning the plaque in its place. That’s a good start. I also think there could be merit in the provision of some signs in front of the car park, well-spaced and with an attractive backdrop as an alternative to the exposure of the car park. 
34	Ultimately, I think that should be the subject of a new application rather than the requirement of a revised permit condition given the uncertainty as to what would be acceptable. This should be undertaken in consultation with the Council.
35	I will vary the Council’s decision. I will delete condition 1(a), but condition 1(b) will remain on the permit.    

S. R. Cimino
Senior Member