VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P2018/2020
Permit Application no. TP-2019-606 	
CATCHWORDS	
Section 82 of Planning and Environment Act 1987; restrictive covenant; section 61(4) of Planning and Environment Act 1987; business identification sign; major promotion sign.	

Applicant	Eventpower Property Pty Ltd	

Responsible Authority	Melbourne City Council	
Respondent	K & M Property Investments Group Pty Ltd	
Referral Authority	Head, Transport for Victoria	

SUBJECT LAND	26 Cook Street
PORT MELBOURNE VIC 3207	

HEARING TYPE	Hearing	

DATE OF HEARING	24 August 2021	

DATE OF ORDER	2 September 2021	

CITATION	Eventpower Property Pty Ltd v Melbourne CC [2021] VCAT 1002	
Order
Amend name
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:
K & M Property Investments Group Pty Ltd.
No permit granted
2	In application P2018/2020 the decision of the responsible authority is set aside.
3	In planning permit application TP-2019-606 no permit is granted.

Susan Whitney
Member			

Appearances
For applicant	Mr Tyrone Rath, solicitor, of Planning & Property Partners.	
For responsible authority	Mr Robert Carletti, town planner, of Tract Consultants.	
For referral authority	No appearance	
For respondent	Ms Jess Kaczmarek, solicitor, of S & K Planning Lawyers.
The following expert witness was called:
•	Mr Alastair Campbell, urban designer, of Hansen Partnership Pty Ltd.	

Information
Description of proposal	Proposed floodlit, high-wall business identification signage to a four storey commercial building.	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Melbourne Planning Scheme	
Zone and overlays	Industrial 1 Zone	
Permit requirements	Clauses 33.01-5 and 52.05.	
Land description	The sign is to be affixed to a commercial building located on the subject land. The subject land is approximately 1,036m2 in area and contains a four storey commercial building (three storeys plus ground floor car parking/communal area). 	

Reasons
What is this proceeding about?
1	The Applicant, Eventpower Property Pty Ltd, seeks the Tribunal’s review of the decision of the Melbourne City Council (“Council”) to approve the construction and display of a floodlit, high-wall, business identification sign on the four storey commercial building located at 26 Cook Street, Port Melbourne (“Land”).
2	The commercial building on the Land currently contains the offices of Symmetric Homes Pty Ltd (“Symmetric”), Ground Property Group and AMK Owners Corporation. The Respondent, K & M Property Investments Group Pty Ltd, is the permit applicant.
3	The proposed sign is to advertise the company, Symmetric. The proposed sign’s dimensions are 8 metres wide and 4 metres long with a total display area of 32m2. The proposed sign will contain the name “Symmetric Homes” across the bottom along with the business logo in the bottom right corner. There is then to be what the plan refers to as a “signage zone” that measures 6.2 metres wide and 2.5 metres long (area 15.5m2) that will contain text that will change from time to time. As currently proposed, this text reads “Tell the Grandchildren you built your dream home during a global pandemic and recession”. The proposed sign, including its lights, is to occupy the 100mm space between the building wall and the title boundary with the adjoining lot. The lights comprise four spot lights, two at the top of the sign and two at the base. The proposed sign is to be static with a printed mesh finish. The following is an extract of the amended plans, showing the proposed sign.

4	The proposed sign will be erected on the top corner of the northern elevation of the building and will face traffic moving westwards on the West Gate Freeway, i.e. away from the city of Melbourne. The following is an extract of the amended plans showing the location of the proposed sign on the building, where the West Gate Freeway is located to the left of the plan.

5	The original proposal was that the proposed sign be internally illuminated. The Head, Transport for Victoria objected to the original proposal. The permit application was amended and the proposal is now for a printed, externally illuminated sign. This is the proposed sign that the Council approved. The Head, Transport for Victoria is not a referral authority for a sign of this type and in any event, the Head, Transport for Victoria no longer objects to the proposed sign. 
6	The Land is Lot 6 on Plan of Subdivision 641054A and is comprised in certificate of title volume 11384 folio 193. The Land is subject to restrictive covenant AK036535Y (“Restrictive Covenant”) that was registered on the title to the Land on 21 November 2012. 
7	The Applicant occupies the adjoining building on the land at 28-30 Cook Street, Port Melbourne. The Applicant is a beneficiary of the Restrictive Covenant.
8	The Applicant contends that the proposed sign is prohibited by section 61(4) of the Planning and Environment Act 1987 (“Act”). That section provides:
If the grant of a permit would authorise anything which would result in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit unless a permit has been issued, or a decision made to grant a permit, to allow the removal or variation of the covenant.
9	The Applicant also contends that the proposed sign is mischaracterised as a business identification sign and is more property characterised as a major promotion sign, having regard to the definitions in clause 73.02 of the Melbourne Planning Scheme (“Scheme”). In this respect, the Applicant submits that the proposed sign has not been assessed by the Council on the correct basis and that there is insufficient information before the Tribunal to determine whether a major promotion sign is an appropriate planning outcome. 
10	The Applicant also submits that the planning permit application for the proposed sign is piecemeal in nature, in that permission is sought for the text in the ‘signage zone’ of the sign to change from time to time.
11	The Applicant also raises other concerns regarding the lighting of the proposed sign and whether the signage is part of an established signage pattern in the area, as sought by clause 22.07 of the Scheme.
12	The key issues before the Tribunal are:
a.	What is the correct characterisation of the proposed sign?
b.	Is the proposed sign prohibited pursuant to section 61(4) of the Act due to the operation of the Restrictive Covenant?
c.	If the proposed sign is not prohibited, is the proposed sign an acceptable planning outcome?
13	For the reasons set out below, I find that the proposal is prohibited and that a permit must not issue.
What is the correct characterisation of the proposed sign?
14	It is appropriate to first ascertain the correct characterisation of the proposed sign although in the circumstances this will not impact on the construction and interpretation of the Restrictive Covenant. 
15	The Applicant contends that what is sought is properly characterised as a ‘floodlit, high-wall, major promotion sign’, where these terms are defined in clause 73.02 of the Scheme as follows:
Floodlit sign: A sign illuminated by external lighting provided for that purpose.
High-wall sign: A sign on the wall of a building so that part of it is more than 10 metres above the ground.
Major promotion sign: A sign which is 18 square metres or greater that promotes goods, services, an event or any other matter, whether or not provided, undertaken or sold or for hire on the land or in the building on which the sign is sited.
Sign: Includes a structure specifically built to support or illuminate a sign.
16	The Respondent acknowledges that signage can fall within several definitions. Whilst prior to the hearing the Respondent contended that the proposed sign was a ‘floodlit, high-wall, business identification sign’, at the hearing the Respondent stated that it was comfortable with me assessing the application on the basis that what was sought was a ‘floodlit, high-wall, major promotion sign’.  For completeness, a business identification sign is defined in clause 73.02 of the Scheme as follows:
Business identification sign: A sign that provides business identification information about a business or industry on the land where it is displayed. The information may include the name of the business or building, the street number of the business premises, the nature of the business, a business logo or other business identification information.
17	The Council submitted that what is sought is a ‘floodlit, high-wall, business identification sign’ but that even if it was a ‘floodlit, high-wall, major promotion sign’ it would still be an appropriate planning outcome.
18	Having regard to the relevant definitions of the terms and the content of the proposed sign, I find that what is sought is a ‘floodlit, high-wall, major promotion sign’. This is because the proposed sign does more than provide business identification information about a business or industry on the land where it is displayed; it also promotes that business, being ‘Symmetric Homes’ by including text that induces a person to be interested in seeking more information about the service that the business provides. I use the word ‘induce’ to adopt the terminology used by Deputy President Gibson in Fivex Pty Ltd v Melbourne CC, where Deputy President Gibson quoted the Tribunal in RW & MM Anderson Nominees Pty Ltd v Greater Geelong CC, where it was said that the word ‘promotion’ in the term “major promotion sign” necessarily involves some inducement for the viewer to acquire the product or attend the event. 
19	I accept that there “may be a fine line between signs which only convey information and those which go on to induce a purchase” and that “[w]hich side of the line a particular sign may fall depends upon the wording of the sign and the circumstances of the particular case”. In this case I do not regard the wording that is currently proposed in the ‘signage zone’ – and, assuming that future wording would follow a similar approach, the wording that the signage zone might contain, going forward – to be information that provides business identification information about Symmetric. 
20	Whilst the Applicant and the Council submitted that the wording in the signage zone could come within the concept of “other business identification information” in the definition of business identification signage, I disagree. This is because I regard those words in the definition to be a ‘catch all’ designed to encompass any other business identification information that is not already included in the preceding words “the name of the business or building, the street number of the business premises, the nature of the business, a business logo” but which is of a similar nature. This is following the principle of statutory construction known as ejusdem generis, meaning that where general words follow the listing or itemising of particular classes of things, the general words will be construed as applying to things of the same general class as those listed. So, for instance, the “other business identification information” might include a phone number or website address, as this information is similar in nature to the name of the business and the street number, but might not include a slogan or, perhaps, information about a special deal that the business was spruiking.  
21	Rather, I think the more apt definition is “major promotion sign”, because the sign, at 32m2, is greater than 18m2 in area and it promotes the services of Symmetric that are sold in the building on which the sign in sited. It is also a high-wall sign, given its location 12.065 metres above the ground and a floodlit sign, given its illumination by external lighting provided for that purpose.
22	For the purposes of the Industrial 1 Zone of the Scheme and the relevant signage category, being Category 2 – Office and Industrial, both “business identification sign” and “major promotion sign” are section 2 – permit required signs. In that sense, little turns on the distinction; that is, this is not a case where the change to the characterisation of the proposed sign results in the proposed sign becoming prohibited.
23	The different characterisation of the proposed sign brings with it different considerations in terms of assessment and different expectations in terms of the application materials. Before dealing with that, I need to address the threshold legal question, being is this proposed sign prohibited pursuant to section 61(4) of the Act. 
Is the proposed sign prohibited pursuant to section 61(4) of the Act due to the operation of the Restrictive Covenant?
24	The proposed sign will be prohibited under section 61(4) of the Act if the grant of the planning permit for the proposed sign would authorise anything which would result in a breach of the Restrictive Covenant. If this is the case, the Tribunal must refuse to grant the permit unless a planning permit has been issued or a decision made to grant a permit to allow the removal or variation of the Restrictive Covenant. In the present case, no planning permit has been issued, nor has any decision been made to grant a planning permit, to allow the removal or variation of the Restrictive Covenant. Further, I am not aware of any planning permit application having been made to remove or vary the Restrictive Covenant.
25	The Applicant contends that the proposed sign breaches covenant (d) of the Restrictive Covenant.
26	The Restrictive Covenant is as follows:
The transferee hereby for himself, herself or themselves his, her or their heirs executors administrators and transferees the registered proprietor or proprietors for the time being of the land hereby transferred (“Land”) covenants with the transferor and the registered proprietors from time to time of the land in Crown Allotment 2018 City of Port Melbourne Parish of Melbourne South (other than the Land) and separately covenants with the registered proprietor or proprietors for the time being of the land in Crown Allotment 2018 City of Port Melbourne Parish of Melbourne South whether transferred thereout before or after the Land that the transferee will not and will not suffer, cause or permit:
(a)	the use of the Land wholly or partly for the retail sale of food and/or beverages:
(b)	the use of the Land for any of the following purposes:
(i)	brothel;
(ii)	concrete batching plant;
(iii)	concrete panel plant;
(iv)	recycling plant;
(v)	vehicle wreckers;
(vi)	junk yard;
(vii)	panel beaters;
(viii)	place of worship;
(ix)	place of assembly;
(x)	adult bookshop;
(xi)	agriculture;
(xii)	caretakers residence;
(xiii)	circus;
(xiv)	carnival;
(xv)	crop raising;
(xvi)	animal husbandry;
(xvii)	mining,
(c)	the Land or any building on the Land to become unsightly or in a state of disrepair;
(d)	any signage to be erected or displayed on the Land which does not directly relate to the business activities being carried out by the transferee on the Land or allow any third party signage (such as commercial advertising signage) to be erected or displayed on the Land;
and it is intended that this covenant shall appear as an encumbrance affecting the same and every part thereof on the Certificate of Title to be issued in respect of the lot hereby transferred and further that this covenant shall forever run at law.
(Tribunal emphasis)
27	The burden of the Restrictive Covenant is borne by the initial transferee of the Land, along with any persons who derive title from that transferee. As stated in the Transfer of Land that created the Restrictive Covenant, being instrument of transfer AK036535Y, the initial transferee of the Land was Caneva Management Pty Ltd. The Land has since transferred to the current registered proprietors of the Land who hold the Land as tenants in common, being ROJ Property Group Pty Ltd and K & M Property Investments Group Pty Ltd. The latter company is the Respondent in this proceeding. As such, it is ROJ Property Group Pty Ltd and K & M Property Investments Group Pty Ltd that are the current transferees for the purposes of the restrictions contained in the Restrictive Covenant.
28	In terms of covenant (d), the transferees must not cause or permit there to be any signage erected or displayed on the Land: 
a.	which does not directly relate to the business activities being carried out by the transferee on the Land; or
b.	allow any third party signage (such as commercial advertising signage) to be erected or displayed on the Land.
29	The Applicant contends that the proposed sign breaches the Restrictive Covenant because:
a.	the business activities undertaken on the Land are not directly related to what is being advertised on the proposed sign, in that Symmetric is a house construction company and the proposed sign advertises the construction of houses yet the business activities taking place at Symmetric’s head office on the Land are not the building of the houses, but rather, the sales of that service and associated administrative activities; and
b.	the proposed sign relates to Symmetric’s business activities whereas Symmetric is not the transferee of the Land.
30	The Applicant relied upon the principles of construction for restrictive covenants as summarised by Derham AsJ in Clare v Bedelis, where the Supreme Court of Victoria said, among other things, that:
(a)	subject to the qualifications mentioned below, the ordinary principles of interpretation of written documents apply. The object of interpretation is to discover the intention of the parties as revealed by the language of the document in question;
(b)	the words of a restrictive covenant:
(i)	should generally be given their ordinary and everyday meaning and not be interpreted using a technical or legal approach. Evidence may be admitted, however, as to the meaning of technical engineering, building or surveying terms and abbreviations;
(ii)	must always be construed in their context, upon a reading of the whole of the instrument, and having regard to the purpose or object of the restriction;
(c)	importantly, the words of a restrictive covenant should be given the meaning that a reasonable reader would attribute to them. The reasonable reader may have knowledge of such of the surrounding circumstances as are available. These circumstances may be limited to the most obvious circumstances having regard to the operation of the Torrens system and the fact that the covenant is recorded in the register kept by the Registrar of Titles. As the High Court held in Westfield: 
The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee...
…
(h) 	whether a covenant has been breached or not is a question of fact to be determined according to the facts of the case and in the light of the actual language in which the restrictive covenant is framed.
31	The Applicant submitted that the words of the Restrictive Covenant are clear and that the identity of the transferee is able to be ascertained by looking at the certificate of title. Further, the Applicant submitted that the inclusion of the reference to the transferee in covenant (d) was deliberate and that the words must be given work to do; if what was intended was merely that the signage had to relate to business activities being carried out on the Land, the Restrictive Covenant would have said that in covenant (d) and would not have included the further reference to the transferee. 
32	The Council was of the view that the Restrictive Covenant was not breached because the proposed sign related to a business that was being conducted on the Land, being Symmetric’s business. The Council points to its inclusion of a condition in the Notice of Decision to Grant a Permit that requires the proposed sign to only contain an advertisement which provides or supplies information relating to the business conducted on the Land as being consistent with that part of covenant (d) that prevents third party signage.
33	The Respondent referred to the same passage in Clare v Bedelis in support of the principles of construction for restrictive covenants. 
34	The Respondent explained that:
a.	K & M Property Investments Group Pty Ltd is a trust company and the Land is an asset of the company;
b.	Mr Chris Yorenc is one of two beneficial owners of K & M Property Investments Group Pty Ltd, the other being his wife;
c.	Mr Chris Yorenc is the sole director/secretary and sole shareholder of Symmetric; and
d.	Symmetric leases the Land from K & M Property Investments Group Pty Ltd.
35	The Respondent submitted that the proposed sign will not breach the Restrictive Covenant because:
a.	the purpose of the Restrictive Covenant is to “facilitate a development outcome which prevents the establishment of particular uses and restricts the erection and display of signage which does not relate to the business activities carried out on the Land or any third-party advertising signage”;
b.	the signage is for Symmetric in circumstances where the business activities of Symmetric’s head office are being carried out on the Land;
c.	the Applicant’s approach in terms of what is meant by the signage directly relating to the business activities being caried out on the Land is overly restrictive; and
d.	the Applicant’s approach to the business activities needing to be carried out by the transferee is not consistent with how a reasonable reader would interpret the Restrictive Covenant and would not be consistent with what the Respondent says is the purpose of the Restrictive Covenant. The Respondent pointed to other existing signs in the area that are on land that is subject to similarly worded restrictive covenants and where the signage is for businesses that are not the registered proprietors of those parcels of land. The Respondent submitted that this is indicative of what a reasonable reader understands is meant by the signage restriction. The Respondent invited me to read “transferee” as meaning persons authorised by the transferee, such as a tenant of the Land.
36	Having considered the wording of the Restrictive Covenant and the submissions of the parties, I agree with the Applicant that the proposed sign is prohibited due to the Restrictive Covenant. This is because the proposed sign that is sought to be erected and displayed is not a sign that directly relates to the business activities being carried out by the transferee on the Land, because Symmetric is not the transferee of the Land. Rather, the transferees are ROJ Property Group Pty Ltd and K & M Property Investments Group Pty Ltd. Although it could be argued that there is a relationship, of sorts, between K & M Property Investments Group Pty Ltd and Symmetric, in that Mr Yorenc is involved with both companies, these are two different legal entities. 
37	Rather, I regard Symmetric to be a third party who is seeking to erect signage on the Land. The Restrictive Covenant prevents any third party signage being erected on the Land. The example given - “such as commercial advertising signage” - I take to mean advertising signage unrelated to the Land. However, conceivably, the restriction in covenant (d) would also prevent a third party such as Symmetric erecting and displaying its signage on the Land.
38	I acknowledge that this interpretation may seem strict and austere but it is not nonsensical. It is what the words of the Restrictive Covenant say. Covenant (d) has been drafted to specifically include reference to the “business activities being carried out by the transferee on the Land”, which has to mean something. If what was intended was simply that the business activities be those carried out on the Land, there would be no reason to include reference to these business activities being carried out “by the transferee” on the Land. If I was to read the term transferee as broadly as is suggested by the Respondent, it would negate the inclusion of that word in covenant (d).
39	Further, reading the words of covenant (d) in this manner does not derogate from the purpose of the Restrictive Covenant, which appears to be to limit signage erected and displayed on the Land to only signage related to the business activities of the transferee carried out on the Land. In practice, this might impact on the leasing of the Land but this does not make the wording of the Restrictive Covenant unworkable or a nonsense. Rather, such strict wording might be consistent with a desire to prevent the potential exploitation of what is arguably a prized advertising position, in light of the location of the Land adjoining one of the busiest freeways in Melbourne. 
40	I note that the Respondent suggested that the Symmetric signage could relate to the business activities of K & M Property Investments Group Pty Ltd because that company owns and leases property and the signage is for its tenant, Symmetric. To the extent that this might be a connection, I regard it to be somewhat strained and artificial and not consistent with what a reasonable reader of the Restrictive Covenant would understand by the language used. 
41	Given its creation in 2012, this is not a particularly old restrictive covenant, nor does it use archaic language or language that is no longer commonly understood. Whilst the term “transferee” has a legal meaning, it is also apparent from the document itself who the transferee was at the time that the Restrictive Covenant was entered into and who it is now, based on a title search. As such, it is evident from the face of the publicly available documents pertaining to the Land what the identity of the transferee is to whom the Restrictive Covenant refers.
42	If I was to read the term transferee as broadly as is suggested by the Respondent, aside from there being no legal basis to do so, it would lead to confusion as to who the transferee is who is entitled to erect and display signage on the Land. This is important because this is a property instrument the entitlement of which is held by beneficiaries and those beneficiaries need to be able to readily ascertain the identity of the transferee for the purposes of the Restrictive Covenant.
43	The Respondent suggested that covenant (d) was, in effect, observed in the breach by surrounding properties that were subject to a restrictive covenant on effectively the same terms but which had erected and were displaying signage for entities other than the transferees. I do not have those properties before me nor do I know the particular circumstances that resulted in those signs being erected. I do not think that other properties’ behaviour should be used to inform how I interpret this Restrictive Covenant; I do not think that I can draw any conclusions about what is commonly meant or understood by these words from the behaviour of the surrounding properties in the present circumstances and in this proceeding. 
44	I am not persuaded by the Applicant’s arguments as to what is meant by covenant (d) when it prevents any signage being erected on the Land “which does not directly relate to the business activities being carried out by the transferee on the Land”. I regard it as sufficient that any signage relate to the business activities of the transferee generally, not that the sign is restricted to only those business activities that are conducted by the transferee on the Land, as opposed to the parts of the business activity that the transferee might undertake off the Land. To read it as suggested by the Applicant, one would need to know and then assess the business activities being undertaken on the Land against the wording used in the signage in order to understand whether the signage breached the Restrictive Covenant. I regard this to be beyond what a reasonable reader would understand was meant by covenant (d) as well as posing difficulties in terms of understanding when the Restrictive Covenant was breached. Accordingly, if Symmetric was the transferee I would have been satisfied that the proposed sign directly related to the business activities being carried out by the transferee on the Land, notwithstanding that Symmetric does not actually build homes on the Land.
45	For the above reasons, in circumstances where the proposed sign is related to business activities that are being carried out by Symmetric on the Land and Symmetric is not the transferee, the grant of a permit for the proposed sign would authorise the erection and display of signage that is in breach of the Restrictive Covenant. Accordingly, pursuant to section 61(4) of the Act the Tribunal must refuse to grant the planning permit. 
46	For completeness, it should be apparent that for the purposes of the Restrictive Covenant in the circumstances at hand it matters not whether the proposed sign is characterised as a ‘floodlit, high-wall, business identification sign’ or a ‘floodlit, high-wall, major promotion sign’, given the fatal flaw was that the proposed sign was not for the business activities of the transferee.
If the proposed sign is not prohibited, is the proposed sign an acceptable planning outcome?
47	Given my finding that the proposed sign is prohibited due to the operation of the Restrictive Covenant, this is a moot point. However, for completeness, I make the following brief comments. 
48	Submissions were made in relation to the merits of the proposed sign and I was taken to the provisions of clause 52.05 Signs as well as clause 22.07 Advertising Signs, the latter being the policy in the Scheme that applies to all applications for advertising within the municipality. I queried whether particular parts of this policy that referred to “promotion” signs and not “major promotion signs” were applicable, given the different meanings of these defined terms in clause 73.02 of the Scheme. I was taken to cases where the Tribunal and the Council had approached the references to “promotion” signs in clause 22.07 of the Scheme to include “major promotion signs” as indicative that this is the correct approach. I make no findings in this respect.
49	I heard evidence from Mr Campbell regarding the planning merits of the proposed sign in this location. Notwithstanding that Mr Campbell’s instructions were for him to assess the proposed sign as a ‘floodlit, high‑wall, business identification sign’, I understood from Mr Campbell’s evidence that his conclusion as to the acceptability of the proposed sign from a planning standpoint would not change if this was characterised as a floodlit, high-wall, major promotion sign’. I understood this to be, in large part, due to the non-sensitive location of the building and the Land, the location of the proposed sign on the building, the zoning of the Land, and the non‑sensitive nature of the surrounding properties.  
50	Whilst I acknowledge that I do not have photomontages or a streetscape perspective as sought by clause 52.05-6 of the Scheme for major promotion signs, given the proposed location on an existing building, I do not think that I have insufficient information to enable me to appreciate the likely visual impact of the proposed sign. I note that it was Mr Campbell’s evidence that he was confident that the material before the Tribunal, including the material he included in his expert witness report, sufficiently showed a visual representation of the streetscape, for the purposes of my assessment.
51	Similarly, in terms of the lighting, I acknowledge that I do not have material before me detailing the level of light that will be cast onto the proposed sign by the four floodlights. This is no longer an internally illuminated sign and I acknowledge what was said by Mr Campbell: that this is an area with high background levels of light due to the street lighting on the West Gate Freeway. From a road safety standpoint, the Head, Transport for Victoria did not object to the proposal. The proposed permit conditions sought to address any light spill or glare on adjacent properties. If the proposed sign was not able to be sufficiently lit due to the location, and limited setback, of the floodlights (given the title boundary), then this is surely a problem for the permit holder.  
52	In summary, were it not for the prohibition pursuant to section 61(4) of the Act, I would have considered that I had sufficient material before me to assess the merits of this permit application.
Conclusion
53	For the reasons given above, the decision of the responsible authority is set aside. No permit is granted.

Susan Whitney
Member