VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
  planning and environment DIVISION
planning and environment LIST	vcat reference No. P2234/2019
Permit Application no. 5/2019/162/1	
CATCHWORDS	
Section 80 of the Planning and Environment Act 1987, electronic signs, conditions requiring deletion of some signs and restriction to illumination hours of others, disturbance of neighbours some distance away    	

APPLICANT	The Edge Development Group	
responsible authority	Bayside City Council	
RESPONDENTs	Jonathan and Emma Richardson	
SUBJECT LAND	329 New Street, Brighton	
WHERE HELD	Melbourne	
BEFORE	K Birtwistle, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	9 October 2020   	
DATE OF ORDER	9 November 2020	
CITATION	The Edge Development Group Pty Ltd v Bayside CC [2020] VCAT 1227 	
Order
1	The decision of the responsible authority is varied.
2	The Tribunal directs that planning permit 5/2019/162/1 must contain the conditions set out in planning permit 5/2019/162/1 issued by the responsible authority on 18 November 2019 with the following modifications:
a	Condition 1a) is deleted.
b	Condition 1b) is deleted.
c	Condition 5 is amended to read:
5) 	Sign 1 must only be lit between the hours of 7.00am and 9.00pm
3	The responsible authority is directed to issue a modified planning permit in accordance with this order.   

K Birtwistle 
Member			

Appearances
For The Edge Development Group	Ms S Thomas, town planner of SJB Planning	
For Bayside City Council	Mr P O’Leary, town planner of PolPlan Pty Ltd	
For Jonathan and Emma Richardson	Mr A Iser, lawyer of Planning & Property Partners	

Information
Description of proposal	Construct, put up and display four electronic advertising signs.  	
Nature of proceeding	Application under section 80 of the Planning and Environment Act 1987 – to review the conditions contained in the permit.	
Planning scheme	Bayside Planning Scheme	
Zone and overlays	Commercial 1 Zone (C1Z)
Design and Development Overlay – Schedule 15 (DDO15) 
Development Contributions Plan Overlay – Schedule 1 (DCPO1)
Abuts land in the Road Zone – Category 2 (RDZ2)	
Permit requirements	Clause 52.05-11 – a permit is required to construct, or put up for display, an illuminated sign (being a sign in Section 2 for the purpose of clause 52.05-2)	
Land description	The review site is located on the south west corner of New and Bay Streets, Brighton.  It has a frontage of approximately 46 metres to New Street and 30 metres to Bay Street, having a total site area of approximately 1,396sqm.
The site is occupied by the New Bay Hotel, which comprises three attached parts, being a two storey building at the corner and single storey extension to the south (facing New Street).  A small car park is located on the western side fronting Bay Street.	

Reasons
What is this proceeding about?
1	An application to review specific conditions on a planning permit is limited to a consideration of the merits of those conditions. This type of review application is different to a review application lodged against the entirety of a proposal, such as a review of a Council refusal or an objector review of a Council decision to support a proposal. In those types of reviews, the entirety of a proposal is before the Tribunal and the merits of the whole of the proposal can be considered and modified through permit conditions as necessary. 
2	The Edge Development Group (the ‘applicant’) seeks to review the decision of the Bayside City Council (the ‘Council’) to place conditions on a planning permit for the putting up and display of four electronic advertising signs at No. 329 New Street, Brighton (the ‘review site’).  Jonathan and Emma Richardson (the ‘respondents’) are the occupiers of a dwelling located two properties away from the review site (at No. 60 Bay Street).  They support contested conditions 1a) and 5 but make no submission on condition 1b).
3	The conditions in dispute are:
•	Condition 1a) which requires the deletion of Sign 1 which faces the car park on Bay Street.
•	Condition 1b) which requires the deletion of Sign 4 which faces New Street.
•	Condition 5 which requires that the electronic signs may only be illuminated between the hours of 7am and 10pm.
WHAT IS THE PHYSICAL CONTEXT?
4	The site, on the corner of Bay and New Streets, Brighton is occupied by the New Bay Hotel which has been in existence for more than one hundred years. The land is zoned C1Z.
5	To its west, along Bay Street, the land is zoned Neighbourhood Residential Zone – Schedule 3 (NRZ3).  A car park associated with the hotel abuts the boundary with the NRZ3. The abutting property is developed with a two storey dwelling. Further to its west is the property owned by the respondents.
6	To the south, along New Street is a three storey commercial building in the C1Z.  Opposite the site to the north (on the north-west corner of Bay and New Streets) is a three storey apartment building in the C1Z.
What is sought?
7	The permit application originally submitted to Council sought retrospective approval for a number of existing signs on the site.  Following Council raising issues with respect to the extent of advertising sought, the application was amended to seek approval for four electronic signs only.
8	Sign 1 is located on the façade of the building facing into the car park.  It measures 2.6 metres by 0.9 metre and is set 2.95 metres above the ground.  
9	Sign 2 is on the Bay Street frontage near the corner of New Street.  It measures 2.6 metres by 0.9 metre.  Sign 3 is located on the New Street frontage near the corner with Bay Street. It measures 2.9 metres by 0.9 metre.
10	Sign 4 is located on the New Street frontage.  It measures 2.6 metres by 0.9 metre and is sited 4.4 metres above ground level, above the roofline of the building.
11	According to the permit applicant, the purpose of the signs is to display sporting images, food specials and special events to promote the various hotel functions and sporting club activities.  The signs will cycle static images with no animation or scrolling images.  The electronic dwell times for those signs will be two minutes, and the transition between images will be instantaneous.
WHAT IS THE PLANNING CONTEXT?
12	The purposes of the C1Z within which the site is located include implementing relevant strategies and policies and creating vibrant mixed use commercial centres for retail, office, business, entertainment and community uses. The C1Z is in Category 1 (minimal limitation) for the purposes of the sign requirements at clause 52.05 of the Scheme. 
13	The purposes of clause 52.05 include ensuring that signs:
•	are compatible with the amenity and visual appearance of an area (including the existing or desired future character)
•	do not contribute to excessive visual clutter or visual disorder; and
•	do not cause loss of amenity or adversely affect the natural or built environment or the safety, appearance or efficiency of a road.
14	There are general decision guidelines at clause 52.05 with respect to illumination:
•	The impact of glare and illumination on the safety of pedestrians and vehicles.
•	The impact of illumination on the amenity of nearby residents and the amenity of the area.
•	The potential to control illumination temporarily or in terms of intensity.
what do the parties say?
15	With respect to Condition 1a), the Council says that Sign 1 should be deleted as it is proposed to be sited at the most sensitive interface, as it faces residential properties and is most isolated from the commercial areas.  They say that the sign is out of character with the area.
16	With respect to Condition 1b), the Council says that Sign 4 is located above the roof line, and this results in a degree of visual prominence, fails to integrate with the host building nor have due regard to the architectural features of the building.  They say this is out of character with the area and should therefore be removed.
17	Finally, Council concede on the basis of the lighting report submitted with the application that the illumination proposed will not impact on the road safety of the area.  Nevertheless, they say that Condition 5 is necessary to protect the amenity of its sensitive interfaces. 
18	The respondents reside at 60 Bay Street, which is two properties away from the car park on the review site, and a distance of approximately 30 metres.  They oppose the removal of Conditions 1a) and 5. 
19	Sign 1 (the sign sought to be removed by Condition 1a)) faces west towards the respondents’ property.  They say that the sign will have a detrimental impact on their property, will result in visual clutter and is otherwise unnecessary given the adequate signage opportunities at the site.
20	They say that the sign is within approximately 35 metres of the respondents’ first floor windows which are in direct line of sight of the sign.  They say that the artificial light repeatedly pulsating will result in detrimental impacts on sleep and study times of the occupants children, whose bedrooms face the street.
21	Further, they say that there is no need for the sign, and its existence contributes to visual clutter on the site.  Finally, they say that Condition 5 is necessary to mitigate the detrimental amenity impacts of electronic signage.
22	The applicant says Signs 1 and 4 will not result in visual clutter or disorder, will not unreasonably impact the character or amenity of the area, are appropriately positioned with regard to the host building and represent a fair and orderly planning outcome with regard to Clauses 52.05 and 65 of the Scheme.  Further, they say that Condition 5 is unreasonable and unnecessary having regard to Clauses 52.05 and 65 of the Scheme.
what are my findings?
23	Clause 52.05 applies to Signs.  The purposes of the provision are:
•	To regulate the development of land for signs and associated structures.
•	To ensure signs are compatible with the amenity and visual appearance of an area, including the existing or desired future character.
•	To ensure signs do not contribute to excessive visual clutter or visual disorder.
•	To ensure that signs do not cause loss of amenity or adversely affect the natural or built environment or the safety, appearance or efficiency of a road.
24	Importantly, the Council agrees that there will be no road or pedestrian safety issues that will arise from the proposed signs.  The Lighting Impact Assessment prepared for the permit applicant provided an assessment of obtrusive light spill against AS4282-2019 – Control of Obtrusive Effects of Outdoor Lighting, which confirmed that even between 11pm and 6am the maximum lux levels of all signs proposed would comply with the relevant standard.  Conditions imposed on the permit (not disputed by the permit applicant) will ensure that the illumination of the signage will not unreasonably impact road safety.
25	I deal firstly with Sign 4 (Condition 1b).  This sign sits above the parapet of the in-situ single storey building.  The building itself is unprepossessing, with no features of note.  Importantly, the sign will sit beside a much higher building as well as other significant, what appear to be, telecommunications arrays on the hotel building.  The sign faces the commercial properties opposite in New Street and there are various forms of advertising evident in the immediate vicinity.
26	There is no local policy on advertising signage.  Similarly, the DDO that applies to the site has largely no relevance with respect to the consideration of advertising.  I am satisfied that the proposed above parapet sign is acceptable on the basis of its modest height above the building façade, the lack of policy that discourages such features, the lack of any DDO or heritage control that may suggest such siting is unacceptable, and that the sign’s positioning will assist in partially screening some existing plant equipment evident on the building’s roof.
27	Next, I deal with Sign 1 (Condition 1a).  
28	The respondents’ property is approximately 30 metres from the review site. It is separated from the review site by the two storey dwelling with mature landscaping at No. 62 Bay Street.  Both Nos. 60 and 62 have high front and side fencing along their boundaries. Sign 1 is sited on the wall of the hotel, perpendicular to Bay Street and the respondents’ property.  
29	In the intervening space between the respondents’ dwelling and the sign is the dwelling at No. 62 Bay Street.  The upper level windows of the respondents’ dwelling face Bay Street.  Based on aerial imagery and my own site observations, there is no direct line of sight from these windows to the proposed sign.  Any impact therefore is from the intermittent and changing nature of the sign, and the light change that arises from that shift, to the front setback of the dwelling. 
30	The respondents say that this light change distracts their children if they are studying or disturbs their sleep.
31	I am not persuaded that the sign itself will result in an unreasonable loss of amenity to the respondents’ property based on:
•	the alignment of their dwelling windows perpendicular to the proposed sign
•	the distance between the sign and the respondents’ property
•	the intervening structure (the neighbouring dwelling) between their dwelling and the sign.
32	However, the permit applicant agreed that a condition could restrict the illumination times of this sign to 9.00pm.  I think this is an acceptable outcome.  I say this because the site adjoins an NRZ.   While the abutting dwelling currently has only one habitable room window facing the sign, this may change in the future. I think the “switching off” of this one sign at 9.00pm will not unreasonably impact the host site as there is sufficient other illuminated signage that can be retained. 
33	Subject to a condition limiting its illumination time, I am satisfied that this sign can be retained.
34	Finally, Condition 5 more broadly sought to restrict the illumination times of all signage.  I am satisfied that Signs 2, 3 and 4 can be largely unrestricted as:
•	There are no road or pedestrian safety issues with respect to the illumination.
•	The signs face RDZ2.
•	The site and its surrounds (aside from its neighbours to the west) are in the C1Z, which has the lowest level of advertising restriction as befit their commercial status.
•	There is no immediate interface with residential properties.
conclusion
35	For the above reasons, I am satisfied that Condition 1a) and 1b) should be deleted and Condition 5 modified to restrict the illumination hours of Sign 1 only. 

K Birtwistle 
Member