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CITE

Unreported Judgment

Australian Leisure and Hospitality Group Pty Ltd v Moreton Bay Regional Council[2017] QPEC 8Rackemann DCJ
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Australian Leisure and Hospitality Group Pty Ltd v Moreton Bay Regional Council[2017] QPEC 8

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Australian Leisure and Hospitality Group Pty Ltd v Moreton Bay Regional Council [2017] QPEC 8
PARTIES:	AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LTD (appellant) v MORETON BAY REGIONAL COUNCIL (respondent)
FILE NO/S:	1662 of 2015
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
DELIVERED ON:	3 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	30 November, 9 December 2016
JUDGE:	Rackemann DCJ
ORDER:	The appeal is dismissed
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPLICANT APPEAL AGAINST REFUSAL OF AN ADVERTISING SIGN – whether approval would conflict with the advertising sign code in the planning scheme – whether conflict with corresponding code in new planning scheme
COUNSEL:	Benjamin D Job for the appellant Michael A Williamson for the respondent
SOLICITORS:	Anderssen Lawyers for the appellant Legal Services Division of the Moreton Bay Regional Council

INTRODUCTION

[1]
This applicant appeal is against the Council’s refusal of development permit for operational works to permit the installation of an advertising sign on land situated at 250 Gympie Road, Strathpine. The issues in dispute may generally be described as relating to the visual impact of the proposed sign.

THE PROPOSAL

[2]
The proposed sign is a billboard to be used for third party advertising, which will change from time to time. The proposed billboard is double-sided, facing Gympie Road. Each sign face is proposed to have a face area of 86.78 m² (18.99 m x 4.75 m). The sign faces will meet at the road frontage of the land and project outwards from that point, being some 10.27 metres apart at their widest point. The sign is to be mounted on a single, galvanised support column, covered in a charcoal, grey mesh. The underside of each sign face is to have a clearance of 9.65 metres above ground level. The overall height of the sign is 15.22 metres. The proposed sign is to be illuminated by six flood lights at the base of each sign face for night-time visibility.

THE SITE AND LOCALITY

[3]
The subject site forms part of the Strathpine regional centre which follows the Gympie Road corridor. It features a variety of commercial and retail uses which line both sides of Gympie Road. The area extends for a distance of some 1.5 km along Gympie Road. Although there is a range of signs within this area, there are limited billboard signs.

[4]
The subject site contains an area of 1.399 ha and is occupied by a Dan Murphy’s liquor outlet which is set well back from Gympie Road frontage behind a carpark. A pylon sign which faces Gympie Road and advertises the Dan Murphy’s outlet is located on the frontage of the land. That sign is 8.15 metres high. A second pylon sign for an adjoining land use (the Four Mile Creek Tavern) is located a short distance from the Dan Murphy sign. Those two signs are similar in height and design.^[1] The proposed billboard sign would be situated between those two signs and be much taller and larger than either.

[5]
On the opposite side of Gympie Road lies the Strathpine Shopping Centre. There is a multi-panel pylon advertising sign for that Centre located adjacent to the road frontage. That sign is some 17 metres wide and approximately 21 metres in height. It is a dominant feature,^[2] although none of its panels^[3] are, individually, as large as either of the faces of the proposed sign which will be floodlit at night.^[4]

[6]
The visual character and amenity of the Strathpine Regional Centre, identified as the Central Business zoned land, is not homogenous. As a whole, it is characterised as a concentration of shops and centre uses fronting Gympie Road generally between Buckby Street to the north and South Pine Road to the south. The site and its immediate surrounds are located in that part of the Centre situated between Dixon Street to the south and Learmonth Street to the north.^[5] It was common ground that this part of the regional has a poor standard of visual amenity. As Mr Mongard (the visual amenity expert retained by the respondent) described in the joint report,^[6] the site and that part of the regional centre has the following characteristics:

“The site for the proposed sign is an open carpark area within a large liquor store which is set back from the street. The site lacks landscaping and has little visual amenity.
The adjacent area to the east of the proposed sign and across Gympie Road is dominated by a large carpark fronting the Strathpine Shopping Centre. The Strathpine Shopping Centre has very little visual amenity and few landscape features.
The site is located in the middle of the Strathpine Central business area within a well used pedestrian environment linking major retail outlets, main street orientated shops, Centrelink, the council complex and the railway station. The pedestrian crossing near the site is a major pedestrian link across this part of Gympie Road
The visual amenity of this site and for the adjacent Strathpine Shopping Centre has been strongly influenced by the creation of large carparks fronting retail outlets set a long way back from the street, which has resulted in an open and unattractive area with few trees or landscape features. The lack of street and site landscape features makes the existing pylon signs much more prominent in this part of the regional centre, unlike the adjacent areas to the north and south which feature a mix of tall pine trees, street landscaping and building near the footage.
The proposed sign is next to a large vacant lot. Any vertical structures near the proposed site will be very prominent due to the lack of landscape or buildings near the street. The character of the site frontage is dominated by pylon signs on the street.”

[7]
Save for the reference to a ‘well used’ pedestrian environment (Mr Curtis thought most people will drive), Mr Curtis agreed with that description.^[7]

[8]
As Mr Mongard also noted,^[8] further north and to the south,^[9] but within the regional centre, the existing character is that of a modern regional town with a dominant main street. The street’s landscape contains footpaths with a reasonable level of pedestrian amenity and is complemented by an avenue of tall native pine trees. Shop frontages spill out onto the footpaths and a variety of generally low-scale buildings characterise the built environment. A range of signs are located along this streetscape, predominately tenant signs on pylons and fascia signs on shopfronts. There are very few billboard signs in the CBD. When walking or driving along this area of Gympie Road, the exiting character is that of a large and active town centre with a long, dominant main street. Mr Curtis pointed out that the area to the south has both a “finer grain” of development in close proximity to the street and larger development set back from frontage behind car parking.^[10]

ASSESSMENT CRITERIA

[9]
The development application was impact assessable under the Planning Scheme in force at the time the application was made, although it attracted no adverse submissions. It is to be assessed pursuant to s 314 of the Sustainable Planning Act (SPA) and decided pursuant to s 324. By reason of s 326, the assessment manager’s decision must not conflict with a relevant instrument (in this place the Planning Scheme) unless, relevantly, there are sufficient grounds to justify the decision despite the conflict. The respondent contends that the subject proposal is in conflict with the Planning Scheme. Whilst the appellant identified some “grounds”^[11] it abandoned some^[12] and rightly conceded (consistently with the evidence of Mr Ovenden,^[13] the town planner engaged by it) that the others would not be sufficient to warrant approval in the event that material conflict was found with the provisions of the 2006 Planning Scheme.

[10]
Subsequently to the application being made (on 10 December 2014) and decided (on 8 April 2015) and the institution of this appeal (24 April 2015), the 2006 Planning Scheme was superseded by the 2016 Planning Scheme (21 February 2016). By reason of s 495 of SPA the court is entitled to give weight to the new Planning Scheme.

2006 PLANNING SCHEME

[11]
Insofar as the 2006 Planning Scheme is concerned, it was submitted, for the Council, that the central issue to be determined is whether there is conflict with the Advertising Signs Code, which formed part of that Planning Scheme. In particular, it was contended that a decision to approve the development application would conflict with the overall outcomes in ss 2.1(2)(a), (b) and (c) and Specific Outcome SO2.

[12]
The overall outcomes are the purpose of the Code. Those outcomes of relevance to the issues in dispute are as follows:

“(a) Signage allows for the specific promotional needs of advertisers while responding to, and preserving:

(i)
the desired or established character, streetscape and environmental values of the area in which the signage is situated.

…

(b) Signage is provided in a minimalist, cohesive manner which provides the operations of the advertised activity or businesses undertaking while avoiding visual clutter and discord between the appearance and style of adjacent advertising signs.

(c) Signage provided in a form, and at a scale, which is subservient and complementary to the desirable characteristics of the built and natural environment of its immediate surrounds.

…”

[13]
Whilst the overall outcomes represent the purpose of the Code, assessable development which is consistent with the specific outcome is taken to comply with the Code.^[14] Specific Outcome 2 provides, relevantly, as follows:

“The form, location and extent of advertising signage allows for the reasonable commercial and promotional needs of the advertiser while:

(1)
being subservient to the desirable characteristics of the built and natural environment of the immediate surrounds to the signage;

(2)
not having a significant adverse effect on the desired or established character, streetscape and environmental values of the area;

…

(5)
minimising any potential visual clutter;

…”

[14]
There are a number of probable solutions to that specific outcome. Insofar as billboard signs are concerned, the probable solution includes as follows:

“ …

(3)
has a separation distance of no less than the following from another billboard sign or pylon sign on the same, or an adjacent, site:

(a)
60 metres between a billboard sign and a pylon sign;

…

(4)
has no more than two display faces, each of which:

(a)
has a face area not more than 10 square metres;

…

(5)
has an overall height above finish ground level of no more than 5 metres;

[15]
The proposed billboard sign does not comply with a probable solution because:

(a)
The sign would not be separated by a distance of 60 metres to an existing pylon sign, being located approximately 15 metres from the existing Dan Murphy’s pylon sign;

(b)
The sign has a face area of 86.78 square metres which is more than eight times larger than the size envisaged by the probable solution; and

(c)
The sign would have an overall height of 15.22 metres which a clearance of 9.65 metres to the underside of each sign face, which is three times the overall height provided for in the probable solution.

[16]
The proposed sign is put forward by the appellant as an alternative solution, to be tested against SO2. The provision calls for assessments and judgments about matters which, as was submitted for the appellant, are somewhat subjective and about which reasonable minds may differ. I was assisted by the evidence of the visual amenity experts in particular, as well as by the town planners. I also had the benefit of a site inspection, to better understand that evidence.

[17]
SO2(1) requires the sign to be subservient to the desirable characteristics of the built and natural environment of its immediate surrounds. There is an obvious nexus between that part of SO2 and overall outcome 2.1(c). The focus of those provisions is the “immediate surrounds”. It was common ground that, for the proposed sign, the “immediate surrounds” are that part of the regional centre along Gympie Road between its intersections with Dixon Street and Learmonth Street.

[18]
There is nothing “subservient” about the proposed sign in the context of the built and natural environment of its immediate surrounds. As Mr Mongard opined and Mr Curtis acknowledged, the proposed sign would be a dominant feature. I accept that its scale and visual prominence would result in it not being subservient to any element of the built and natural environment of its immediate surrounds.

[19]
The provision calls for subservience to the “desirable characteristics” of the built and natural environment of the immediate surrounds to the signage. As was submitted for the appellant, that connotes the existing characteristics. It was correctly submitted for the respondent that the proposed billboard sign will not be subservient to the characteristics of the immediate area, irrespective of whether they are desirable or not.

[20]
In the joint expert report, Mr Curtis noted that the streetscape in the “immediate surrounds” includes significant signage within car parking areas adjacent to the Gympie Street frontage. He saw that signage as integral to the visual character of the locality, particularly at night, when illuminated signs contribute to the “vibrancy of the street frontages and assist to identify the area as the heart of Strathpine.” He acknowledged that the proposed sign is comparable, in size, to the Strathpine Shopping Centre sign and would be a visually dominant feature,^[15] but he also saw it as being subservient, rather than dominant, to the “character as a whole”.^[16] Whilst it is true that the site and its immediate surrounds has a streetscape which includes significant signage within car parking areas adjacent to Gympie Road the proposed sign, as Mr Mongard pointed out, would dwarf the nearby Dan Murphy’s sign and all other adjacent signs and:

“the form of the sign, being cantilevered, diagonally framed and lit by twelve floodlights, would attract strong visual attention at night, dominating adjacent signage and the streetscape adjacent. The sign will appear at night disconnected from the ground and floating above the street when viewed from certain locations. The proposed sign will dominate nearby signs which not as highly laminated as the proposed sign”^[17]

I do not accept that it would be subservient in any way.

[21]
In the course of oral submissions, counsel for the appellant took a different approach. He pointed to the agreement, among the experts, that the “immediate surrounds” featured a poor visual amenity in order to submit that there are, in fact, no “desirable characteristics” of the built and natural environment of the immediate surround such that there is nothing to which the signage needs to be subservient. It is, indeed, difficult to ascribe the expression “desirable” to the characteristics of the built and natural environment which exists in the immediate surrounds. It is unnecessary however to pause further on this matter because, for the reasons which follow, there is material conflict with SO2 otherwise. Further, as is discussed later the corresponding provision of the current planning scheme, to which weight may be afforded, is not dependant on the identification of the “desirable characteristics”.

[22]
SO2(2) focuses not on the “immediate surrounds” to the signage but rather on the character, streetscape and environmental values of the “area”. Mr Mongard correctly identified the relevant “area” as the regional centre (identified as the Central Business zoned area) as a whole. I accept however, as was pointed out for the appellant, that the location of a particular site within that overall area is a relevant consideration in determining the significance of any potential adverse effect.

[23]
The provision requires that the signage not have a significant adverse effect on the “desired or established” character, streetscape and environmental values of the area. The Planning Scheme intent for Strathpine business area is for it to be developed in a way which has regard to its major centre status and incorporates appropriate landscaping and urban design of active building entrances and frontages, public spaces and pedestrian areas.^[18] The new Planning Scheme, to which some weight should be attributed, reinforces the role of the Strathpine Centre and, in particular, envisages redevelopment of the built form along Gympie Road which is characterised by active frontages adjoining Gympie Road forming a main street core.

[24]
I note that in 2011, the Council endorsed a master plan for the Strathpine major regional activity centre. That document expresses a “strong desire” to transform the Gympie Road corridor into a “high amenity urban boulevard that facilitates improved development outcomes and provides a radically improved pedestrian experience.” That is not however, a statutory planning document and, as was submitted for the appellant, it should not be given much, and certainly no determinative, weight. It simply evidences some steps towards a plan for implementing something which is consistent with what the planning scheme otherwise seeks.

[25]
It was not contended that the proposal is consistent with what is “desired”. Mr Curtis conceded that it is inconsistent with the forward-planning for the area.^[19] In order to address that, the appellant sought to paint its proposal as one which would not significantly cut across, or render more difficult, the achievement of what is desired for the future. It pointed to the fact that the proposal is for an advertising device, which could be more easily removed in the future than could a large building. It also offered to accept, if necessary, a condition limiting the life of any approval to 10 years. That condition was offered on a premise that would take some time for council’s forward planning to be realised. As was submitted on behalf of the Council however, whilst it may take many years to achieve the full scope of the Council’s planning for the locality:

(a)
the implementation of the forward-planning will be rolled out over time – there are a range of interim steps that will need to be implemented to achieve the final vision;^[20]

(b)
the consistency of the proposal with the forward-planning ought to take into account that the implementation of the Council’s forward-planning will be rolled out over time;

(d)
the proposed condition provides no guarantee that the implementation of Council’s forward-planning will not be cut across. The time limit proposed is speculative.^[21]

[26]
I accept that the proposal would have a significant adverse effect on the desired character and streetscape of the area. It was contended, for the appellant, that there was, in any event, no conflict with SO2(2) or the corresponding provisions of overall outcome 2.1(2)(a)(1), because each refers to the desired “or” established character, streetscape and environmental values. It was submitted that:

(1)
it is sufficient that there be no adverse effect on the established character, streetscape and environmental values, even if there is a significant adverse effect on the desired character, streetscape and environmental values;

(2)
the “established” character, streetscape and environmental values is that which exist; and

(3)
having regard to the location of the subject site within that part of the area which exhibits low visual amenity values, it will not have a significant adverse effect.

[27]
It was submitted, on behalf of the respondent that, construed purposively and in the context of the scheme as a whole, SO2 should not be interpreted in a way which sanctions development which entrenches an existing character which is at odds with the Council’s forward-planning otherwise. That submission was consistent with the approach taken by Mr Mongard who opined that “where an existing amenity has very poor visual amenity it would self-evidently, not be an amenity to retain, or to desire in the future”. It was submitted, for the appellant, however that there was no reason to depart from the ordinary meaning of the word “or” as indicating an alternative.

[28]
It is unnecessary for me to reach a concluded view on the issue of construction because, for the reasons which follow, I prefer the evidence of Mr Mongard to the effect that the proposal will also have a significant adverse effect on the existing character, streetscape and environmental values of the area and so conflict with the provision, even on the appellant’s construction.

[29]
As Mr Curtis pointed out, the proposed sign would have its greatest effect in the area of its immediate surrounds. As Mr Mongard pointed out however, it would also have an impact within the broader area.

[30]
Mr Mongard fairly conceded that the immediate surrounds of the subject site has a poor civic amenity, a landscape dominated by cars and signage and is an open and unattractive area with few landscape features. It does not follow however, that the proposal cannot have a significant adverse effect on that, admittedly poor quality, character and streetscape. Mr Mongard saw the proposal as making an existing situation materially worse to the point that he found it unacceptable having regard to the current situation.^[22] As he pointed out, the proposed sign would:

(1)
be a very large and prominent structure in an open landscape;

(2)
be an isolated, very tall billboard with changing imagery;

(3)
be much larger than existing signage on the same side of Gympie Road;

(4)
appear visually discordant with nearby signage not only in terms of scale but in terms of architectural appearance;

(5)
be equivalent, in visibility, to the Strathpine Shopping Centre sign but more highly illuminated at night. It will be differentiated from it due to its cantilevered form and its large format horizontal faces, allowing much larger images and text which, with illumination, will become even more dominant; and

(6)
appear oversized in scale.

[31]
Further, as Mr Mongard also pointed out, due to its scale, the visual impacts of the proposed sign relate to areas within the regional centre but beyond the immediate landscape. Those areas to the north and south are not subject to the same criticisms in terms of the established character and streetscape. The extent of the impact in those parts of the regional centre will be reduced by reason of the distance separation to the subject site, the proposed sign would nevertheless, I accept, have a significant adverse effect on the established character and streetscape of the area, considered as a whole.

[32]
SO2(5) requires any potential visual clutter be minimised. It has an obvious nexus with overall outcome 2.1(b). “Clutter” refers to a disorderly assemblage. It was pointed out, on behalf of the appellant, that the provision refers to “potential” visual clutter. It was submitted for the appellant, based on Mr Curtis’ evidence, that the potential for visual clutter has already been realised in this area and that the proposed sign would not create any greater disorder than currently exists. Mr Curtis conceded^[23] that the proposal would contribute to visual clutter but saw it as “just part of the clutter that exists in a cluttered area”.

[33]
That there may be a degree of clutter within the vicinity of the subject site does not mean that the proposed sign does not have its own potential to create clutter. In this case, the proposed sign will be visually discordant with the two nearby pylon signs (the Dan Murphy’s sign and the Four Mile Creek Tavern sign). It will be discordant given its size and design.^[24] Mr Mongard rightly said that the assemblage of the three signs (with the proposed sign in place) when viewed together would “look cluttered and awkward”^[25] and that the proposal would create visual clutter.^[26] His evidence, in that regard, sits well with the photo montages. The location of a sign of this height and scale relative to the existing signs does not minimise potential visual clutter.

[34]
For those reasons, the proposal conflicts with SO2 and, in particular, at least SO2(2) and (5). I am also satisfied that the proposal conflicts with the corresponding overall outcomes. It does not appropriately respond to and preserve (rather significantly adversely affects) both the desired and established character and streetscape. It is not provided in a minimalist or cohesive manner which avoids visual clutter and discord between the appearance and style of adjacent advertising signs. Whether it also conflicts with overall outcome 2.1(2)(c) depends on the issues discussed in the context of Specific Outcome SO2(1).

2016 PLANNING SCHEME

[35]
Like the 2006 Planning Scheme, the current Planning Scheme has an applicable Code for advertising devices. It features a statement of purpose as well as performance outcomes and acceptable outcomes. The relevant provisions of the Code do not take a dramatically different approach in that taken under the 2006 Planning Scheme, although there has been some change of wording. Whilst the new planning scheme did not come into force until after the subject application was decided and the appeal instituted, it is, nevertheless deserving of some weight. The proposal also conflicts with it.

[36]
Performance outcome 1 of the Code provides, in part, as follows:

“Advertising devices are of an appropriate number, type, design, scale, height and location to:

(a)
not contribute to visual clutter or be overbearing or visually dominant;

(b)
complement the existing and future planned character and amenity of the area in which it is located;

(c)
maintain human scale and not to detract from or interfere with the form and function of a pedestrian-friendly environment.

(d)
be compatible with the surrounding streetscape and landscape. Advertising devices should be considered as another design element, which integrate with the architecture, scale, proportions and style of buildings, landscaping, structures and other advertising devices located both within and surround the site.”

It may be noted that (a) is not limited to “potential” visual clutter, that in (a), dominance is not tested by reference to the desirable characteristics of the immediate surround and that (b) speaks of the existing ‘and’ future planned character and amenity of the area.

[37]
It was accepted, on behalf of the appellant that if PO1 were applicable, some conflict would arise in relation to each of subparagraphs (a), (b) and (c). I am satisfied, for the reasons already given (and consistently with the evidence of Mr Mongard^[27]), that the proposal would:

contribute to visual clutter;
be visually dominant, if not also overbearing;
not complement either the existing or future planned character and amenity of the area in which it is located – Mr Curtis saw the proposal as complementing the existing Strathpine Shopping Centre sign^[28] but the focus of the provision is the character and amenity of the area;
not maintain a human scale;
detract from the pedestrian environment, although I accept that the pedestrian environment of that part of the area which comprises the immediate surrounds is not particularly friendly;
be incompatible with the surrounding streetscape.

[38]
It was pointed out, for the appellant, that compliance with the Code can be demonstrated by compliance with its purpose, the relevant statements of which are as follows:

“(a) The presence, scale, size and place of advertising devices does not adversely impact upon the character and amenity of the immediate and wider locality, and does not result in visual clutter;

(b)
The presence, scale, size and place of advertising devices is consistent with the character of the existing or proposed land streetscape;

(c)
The presence, scale, size and place of advertising devices is compatible with the design of the building and does not appear visually dominant or overbearing.”

[39]
It follows from my earlier findings that the proposal would also conflict the code’s purpose. It may be noted that PO1(b) refers to the existing “and” future planned character and amenity of the area, whereas overall outcome (b) refers to the existing “or” proposed streetscape. That gave rise to similar interpretation issues as were raised in the context of the 2006 Planning Scheme. For the reasons already given, it is not necessary for me to resolve that in the context of this case, given my findings of conflict otherwise. That may however be something to which the Council should direct its attention in relation to the drafting of the provisions.

CONCLUSION

[40]
For the reasons given, there is material conflict with both the 2006 and 2016 Planning Schemes. Given the concession of the appellant in relation to the insufficiency of grounds, it follows that the appellant has failed to discharge his onus and the appeal should be dismissed.

Footnotes

[1] T1–37.

[2] Exhibit 3 paragraph 41, T1–29.

[3] 3 x 27.6m2 and 1 x 65.5m2.

[4] Exhibit 2, 12–13.

[5] Shown with a blue oval on the aerial photograph at page 63 of exhibit 3.

[6] Exhibit 3 paragraph 18.

[7] T1–27, 28.

[8] Exhibit 3 paragraph 19.

[9] The area within the red ovals marked on the aerial photograph at page 63 of exhibit 3.

[10] Exhibit 3 paragraph 17.

[11] Exhibit 1 tab 3.

[12] See paragraph 31 of the written submissions for the appellant.

[13] T1–79.

[14] Section 2.3(2).

[15] T1–29.

[16] Exhibit 3 paragraph 52.

[17] Exhibit 3 paragraph 61.

[18] DSO7 of the Major Employment Centres Locality Code.

[19] T1-40.

[20] T1-85.

[21] T1-41.

[22] T1-51.

[23] T1–47.

[24] T1–53.

[25] T1–53.

[26] Exhibit 3 paragraph 60.

[27] Exhibit 3 paragraph 78.

[28] T1–38.

Editorial Notes

Published Case Name:
Australian Leisure and Hospitality Group Pty Ltd v Moreton Bay Regional Council
Shortened Case Name:
Australian Leisure and Hospitality Group Pty Ltd v Moreton Bay Regional Council
MNC:
[2017] QPEC 8
Court:
QPEC
Judge(s):
Rackemann DCJ
Date:
03 Mar 2017

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Case Name	Full Citation	Frequency
K & K GC Pty Ltd v Gold Coast City Council	[2018] QPEC 9	1 citation

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Australian Leisure and Hospitality Group Pty Ltd v Moreton Bay Regional Council[2017] QPEC 8