ADSPACE GROUP PTY LTD v CITY OF MARION [2009] SAERDC 39 (24 June 2009)

Last Updated: 26 June 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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ADSPACE GROUP PTY LTD v CITY OF MARION

[2009] SAERDC 39

Judgment of Commissioner Hamnett

24 June 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against Council's refusal to grant Development Plan Consent to erect a double-sided advertising sign - subject land located in a District Centre Zone - whether the proposed sign accords with the objectives of the Zone - whether the proposed development would detract from the amenity of the locality and give rise to "clutter" - whether the nature of the proposed advertising sign as a "third party" sign is a relevant consideration - whether undue weight placed by Council on quantitative provisions of the Development Plan

HELD : Appeal allowed. Development Plan Consent granted, subject to conditions

Keast v City of Salisbury [1999] SAERDC 55; Keast v City of Marion [1999] SAERDC 74; Gerard Industries Pty Ltd v South Australian Planning Commission PAT No. 797 of 1989, considered.

ADSPACE GROUP PTY LTD v CITY OF MARION
[2009] SAERDC 39

THE COURT ISSUED THE FOLLOWING JUDGMENT:

1. This appeal concerns a proposal by Adspace Group  Pty Ltd (“the Appellants”) to erect a double-sided advertising sign at 990-1016 South Road, Edwardstown, within the area of the City of Marion (“the Council”). A Development Application was submitted by the Appellants on 11 February 2008 (Development Application No. 100/260/2008). They were informed that this application had been refused by means of a notice dated 22 May 2008. Reasons for refusal were stated to be that the sign would detract from the amenity of the locality, by virtue of its height and size; and that the sign would result in a cluttering of the local area and would dominate the “low-level landscape”. The proposal was said to be at variance with several provisions of the Marion (City) Development Plan. The Appellants were aggrieved by this decision and appealed to this Court. No resolution was achieved at a conference of the parties and the matter proceeded to hearing.
2. At the hearing the Court heard evidence from Mr M Hutchison, a qualified and experienced planning consultant, and from Mr R Tokley, a qualified and experienced planner in the employ of the Council. The Council was represented by Mr M Duncan, of counsel. The Appellants were represented by Mr G Manos, of counsel. The Court conducted a view of the subject land prior to the hearing.
   

The Subject Land

3. The subject land is formally described in Certificate of Title Register Book Volume 5446 Folio 609 as Allotment 501, Deposited Plan 47427, Hundred of Adelaide. It is used primarily as a shopping centre (“Castle Plaza”) and associated car park. Allotment 501 is of broadly rectangular form but with an irregular western boundary. It has an overall area of some 7.158 hectares.
4. The Castle Plaza shopping centre is classified as a District Centre in the relevant Development Plan. It contains two supermarkets, a discount department store, about 60 smaller shops and a tavern. The shopping centre buildings are set back some 70 metres from South Road, behind a car park capable of accommodating more than 1,300 vehicles. The land between the centre and South Road also incorporates a “Red Rooster” fast food restaurant, a “Hungry Jacks” fast food restaurant and a Caltex service station, with the last two being situated on allotments with separate titles.
5. The subject land is bounded by Raglan Avenue to the north, South Road to the east and Furness Avenue to the south. The western boundary, as indicated, is irregular, comprising sections of Lindsay Way, Lindsay Avenue, Norma Avenue, Flinders Street and Brook Street. The frontage of the land to South Road, with which the present matter is principally concerned, is some 260 metres in length or, if the Caltex and Hungry Jacks allotments are also included, some 375 metres in length.
6. At present there are six signs along the South Road frontage – four on the subject land and one on each of the Caltex and Hungry Jacks properties. These were listed from south to north in Mr Tokley’s statement of evidence (Exhibit R2) as follows:

Sign/Tenancy Name	Height (approx.)	Location from southern boundary of property (approx.)
Castle Plaza Tavern	5 metres	4 metres
Red Rooster	7 metres	47 metres
Castle Plaza (Main sign)	10 metres	94 metres
Caltex	6 metres	160 metres
Hungry Jacks	7 metres	305 metres
Castle Plaza	7 metres	355 metres

7. Mr Hutchison agreed with the details set out in Mr Tokley’s table, apart from estimating the height of the Castle Plaza Tavern sign at 4 metres rather than 5 metres. It was also agreed during the view that the main Castle Plaza sign is higher than indicated in the table, having a height of some 11 to 12 metres.
8. The two Castle Plaza signs promote the centre and its major tenants while the other signs promote the individual businesses listed in the table.
9. A number of Queensland Box trees (Lophostemon confertus) are planted along parts of the frontage at more or less regular intervals within the boundary of the subject land. The Caltex sign is effectively concealed by tree planting when viewed from the north. These trees are currently between 4 and 8 metres high and have not yet reached their mature height.
   

The Proposed Development

10. The proposed development for which approval was sought from the Council was described as a double-sided “V-shaped” pylon sign with a height of 10 metres measured from ground level. The advertising display area was originally to be 12.66 metres wide and 3.35 metres high. During the conference process which followed the lodging of this appeal, the Appellants suggested a modification of their proposal, such that the advertising display area was reduced in size to a width of 8.5 metres and a height of 2.5 metres. This gave a total display area of 21.25 square metres on each side of the sign. This compromise proposal was not accepted by the Council’s Development Assessment Panel, but it was, nevertheless, this amended proposal for a sign with a reduced display area for which the Appellants sought approval at the hearing. Both faces of the sign are to be illuminated by upward-facing fluorescent light fittings concealed at the base of the display board. The amended proposals are depicted in a set of two plans received by the Court as Exhibit A1. According to these plans, the sign is to be located close to the South Road boundary of the subject land, approximately 25 metres south of a pedestrian crossing on South Road and adjacent to a bus stop and shelter. The supporting pylon is not centrally located but is rather placed towards the western end of the sign. The sign will be wholly within the subject land but will extend over the landscape strip and tree planting along the eastern boundary.
    

The Locality

11. Mr Hutchison and Mr Tokley both identified South Road as the dominant feature of the locality. This is a major north-south arterial road carrying cars, buses and a significant number of heavy freight vehicles. South Road forms the boundary between the City of Marion and the City of Mitcham to the east. It is a four-lane divided road with a central median and with several points of entry and exit to Castle Plaza. There are traffic lights at the northern and southern ends of the subject land and also at the pedestrian crossing, just to the north of the location of the proposed sign.
12. Mr Tokley’s locality comprised, in essence, the subject land and properties on the eastern side of South Road opposite the subject land. He distinguished between conditions on each side of South Road. Mr Tokley observed that the eastern side of the road, within the City of Mitcham, has a wide variety of shops, service trade premises, motor repair establishments and restaurants. Setbacks and building forms are varied on this side of the road and there is little landscaping. With regard to advertisements, Mr Tokley described the eastern side of South Road as being “... characterised by an over-proliferation of signage”. By contrast he found signage on the western side of the road, within the City of Marion, to be more orderly and formalised, with fewer free-standing signs – essentially those along the Castle Plaza frontage listed above.
13. Mr Hutchison’s locality was similar to Mr Tokley’s but somewhat longer in its north-south dimension, extending about 450 metres to the north of the proposed sign and some 300 metres to the south. He observed the same distinction as Mr Tokley between the eastern and western sides of the road, describing the eastern side as “very commercial and cluttered” and with an amenity that “... can only be described as poor”. On the western side, by contrast, on the subject land and the two separate allotments contained within it, “... the generous spacing of the signs along the road and the relative absence of banners, sandwich boards and advertisements on fascias, fences, walls and windows, all contribute to maintaining the effectiveness of individual advertising displays...”. Mr Hutchison found the amenity to be “moderate” on the western side of the road and to be enhanced by the native tree planting within the boundary of the subject land.
14. I think Mr Hutchison was correct to extend the locality some way north and south of the subject land. The proposed sign, and the existing signs on the subject land, are likely to be viewed primarily by the drivers of vehicles and their passengers. They will be visible from some distance away as structures, well before their advertising messages can be discerned. In other respects, both Mr Hutchison and Mr Tokley have clearly identified the key features of the locality – the dominant element of South Road; the marked contrast between the orderly signage along the western side as compared with the rather chaotic pattern of development and signage on the eastern side; and the higher level of amenity on the western side derived from both its more orderly pattern of development and the presence of native trees.
    

Development Plan Provisions

15. The relevant Development Plan is that for Marion (City), consolidated on 20 December 2007.
    

Zone Provisions

16. The subject land is located in the District Centre A Zone. Policies for this zone are first expressed in the Development Plan for the whole of the zone. More specific policies are then expressed for particular district centres defined as Policy Areas. The district centre to which this matter relates is referred to as District Centre A (Edwardstown) Policy Area 7.
17. The Objectives for the District Centre A Zone are as follows:

Objective 1: A zone primarily accommodating a range of shopping, office and administrative facilities.
Objective 2: A zone accommodating shopping facilities that provide mainly convenience goods and a sufficient range of comparison goods to serve major weekly shopping trips.

18. Principle of Development Control 1 for the zone is as follows:
    1. Development undertaken in the District Centre A Zone should be, primarily, a range of shopping, office and administrative facilities related to the size and characteristics of the population it serves.
19. Principle of Development Control 2 lists kinds of development which are non-complying in the zone and this includes an

Advertisement or Advertising Display:
...
(b) of a free-standing type that has a height which exceeds 10 metres; ...

20. Objective 1 for the District Centre A (Edwardstown) Policy Area 7 is as follows:

Objective 1: A centre accommodating the main focus of shopping and office facilities for the northern portion of the City of Marion and adjacent council areas.

21. Principle of Development Control 1 for Policy Area 7 states that:
    1. The centre should be developed to serve a primary catchment area of 30 000 people.
22. There are also several relevant Metropolitan Adelaide and Council Wide Provisions of the Development Plan which deal with advertising, as follows:

METROPOLITAN ADELAIDE
OBJECTIVES
Objective 49: An urban environment and rural landscape not disfigured by advertisements.
Objective 50: Advertisements in retail, commercial and industrial urban areas, and centre zones, designed to enhance the appearance of those areas.
PRINCIPLES OF DEVELOPMENT CONTROL
...

22. The location, siting, size, shape and materials of construction, of advertisements should be:

(a) consistent with the desired character of areas or zones as described by their objectives;
(b) consistent with the predominant character of the urban or rural landscape; or
(c) in harmony with any building or site of historic significance or heritage value in the locality.

23. Advertisements should not detrimentally affect by way of their siting, size, shape, scale, glare, reflection or colour the amenity of areas, zones, or localities, in which they are situated.
24. Advertisements should not impair the amenity of areas, zones, or localities, in which they are situated by creating, or adding to, clutter, visual disorder and the untidiness of buildings and spaces.

COUNCIL WIDE
OBJECTIVES
Objective 52: Advertising that provides adequate exposure of the name or primary functions of a site or building without impairing the amenity of the locality in which it is situated.
Objective 53: Advertising that is consistent with or enhances the general character of the locality.
Objective 54: Advertising that is integrated with and complementary to the design of development with which it is associated.
Objective 55: Advertising designed to minimise numbers of displays and to enhance the effectiveness of individual advertisements.
Objective 56: The prevention of the establishment of advertising in inappropriate locations and localities.
Objective 57: Advertising designed to be attractive, legible and durable.
PRINCIPLES OF DEVELOPMENT CONTROL
...
232 Advertisements and advertising displays should:
...
(b) having regard to all aspects, be designed and positioned to:
(i) be compatible with other advertisements and advertising displays in the locality and with buildings, structures and spaces either on the site or nearby sites;
(ii) assist achievement of the intended future character of a zone as indicated by the zone provisions; and
(iii) avoid the immediate and future damage, pruning or lopping of vegetation on the site or on adjoining land;
(c) be designed and developed integrally with development or re-development of a site to achieve a co-ordinated, attractive and effective communication of all messages;
(d) be minimised in number so as to increase or maintain the effectiveness of individual displays and maximise visual appearances;
(e) afford reasonable exposure to other advertising on the site or nearby sites;
...

233. The height of free-standing advertising displays should reflect to a reasonable extent the role and status of the zones, the length of the main frontage of the site to the roadway and the nature of nearby built-form and generally be limited to one main display per site excluding those showing directional, parking or traffic information.

Accordingly, the following standards should not be exceeded for development in the applicable zones:
(a) in all Regional Centre, District Centre, District Commercial, Commercial (Marion Road), Commercial (South Road), General Industry, Industry (Research), and Industry/Commerce Zones:

Frontage of Site (metres)	Maximum Height (metres)
0-39	6
40-79	8
80+	10

...
The maximum height may not be appropriate for all development or in all circumstances, having regard to all other relevant guidelines.

The Evidence

23. Mr Tokley placed considerable weight in his assessment of the proposal on Council Wide Principle of Development Control 233 (which he consistently referred to erroneously in his statement of evidence as Principle 228). This Principle states, amongst other things, that free-standing advertising signs should “... generally be limited to one main display per site excluding those showing directional, parking or traffic information”. The table included as part of this Principle indicates that, within a District Centre Zone, a property with a frontage of 80 metres or more can accommodate a sign with a height of up to 10 metres. The subject land has a frontage of some 260 metres, excluding the separate Hungry Jacks and Caltex allotments, and could therefore, by Mr Tokley’s calculation, accommodate 3 signs, each of up to 10 metres in height – that is, one for every 80 metres of frontage (3 x 80 metres = 240 metres). There are currently 4 signs on this frontage. If the Hungry Jacks and Caltex allotments are also included, the total South Road frontage is some 375 metres and could accommodate, by the same method of calculation, 4 signs of up to 10 metres in height (4 x 80 metres = 320 metres). There are currently 6 signs along this total frontage.
24. Mr Tokley also had some regard to the qualitative guidance which could be derived from this Principle and, in particular, its requirement that “free-standing advertising displays should reflect to a reasonable extent ... the nature of nearby built-form”. He acknowledged that the eastern side of South Road was cluttered with buildings and signs of varying heights, sizes, colours and materials but found that the western side was currently more orderly by comparison. Of the existing signs on the subject land, he observed that two display the Castle Plaza logo (7 and 11 or so metres high respectively) and advertise the presence of its major tenants; one advertises the Castle Plaza Tavern (4-5 metres high); and the other signs advertise the Red Rooster Restaurant (7 metres high), Hungry Jacks (7 metres high) and Caltex (6 metres high). In Mr Tokley’s view these signs effectively reflect the role and status of the District Centre as a significant shopping centre.
25. Mr Tokley acknowledged that the Castle Plaza buildings themselves are substantial but found them to be well set back from the South Road frontage and masked to some extent by the trees along the boundary. In Mr Tokley’s opinion, overall the proposed sign does not “reasonably reflect the nature of nearby built form in regard to either the height of Castle Plaza or other signs in the locality”.
26. The proposed sign, in Mr Tokley’s view, would not be consistent with, or enhance the general character, of the locality (Council Wide Objective 53). It would be at odds with Metropolitan Adelaide Objective 49 which requires that the urban environment is not “disfigured by advertisements”. It would not enhance the appearance of the area, as required by Metropolitan Adelaide Objective 50. A sign of this size and height would detrimentally affect the amenity of the area (Metropolitan Adelaide Principles of Development Control 23 and 24, Council Wide Objective 52) partly by “creating or adding to clutter”. There were already too many signs on the South Road frontage of the subject land on Mr Tokley’s interpretation of Principle 233 and it followed, in his view, that an additional sign would inevitably add to clutter.
27. The nature of the sign, as a “third party” sign was of further concern to Mr Tokley. His opinion was that even a further “first party” sign – i.e. one obviously linked with a business or tenancy on the subject land – was probably not acceptable on his reading of the Development Plan, but a third party sign was certainly not. Third party signs, in his experience, were invariably bright,
    multi-coloured, garish and of great visual impact as a consequence of their attempt to seize the attention of passing motorists. Mr Tokley included in his statement of evidence a selection of photographs of third party signs from locations within about 4 kilometres of the subject land to support this view.
28. While the Court heard that the proposed sign might, on occasion, be used directly to promote the Castle Plaza centre or its tenants, it was clearly the intention that it would be used at other times to advertise third party products which might have no direct relationship to the centre. They would not therefore accord in Mr Tokley’s view with Council Wide Objective 54 – “Advertising that is integrated with and complementary to the design of development with which it is associated”.
29. As a consequence of the increased “clutter” which he foresaw, Mr Tokley was of the view that the proposed signs would reduce, rather than enhance, the effectiveness of individual advertisements on the subject land and in the locality and would conflict, therefore, with parts (d) and (e) of Council Wide Principle 232 (referred to incorrectly as Principle 227). Mr Tokley also found the proposed sign to be at odds with parts of Council Wide Objective 57 which require signs to be “attractive, legible and durable”. In Mr Tokley’s view, the greater the number of signs the less effective the communication of the message, although, when cross-examined, he did concede that the spacing of signs along the western side of South Road was such that the proposed sign would not unduly mask existing signs or prevent them from being read. It was axiomatic to Mr Tokley that the addition of the proposed sign could not contribute to the desire to minimise the number of signs stated in Principle 232(d).
30. Mr Tokley also found that the proposed sign would be at odds with Council Wide Principle 232(b)(iii) which requires that advertisements and advertising displays:

... should avoid the immediate and future damage, pruning or lopping of vegetation on the site or on adjoining land;

31. The nearby trees, as they grow to maturity, would begin to screen the face of the proposed sign and would need to be pruned at some point.
32. On these grounds, Mr Tokley found the proposed development to be seriously at variance with the Development Plan.
33. In Mr Hutchison’s view, the relevant Zone Objectives and Principles focus on promoting shopping and commercial land uses, uses with which advertisements are commonly associated.
34. He found that the proposed sign accords with the general intent of the Development Plan which seeks to guide advertisements away from residential environments and towards locations where goods are promoted and sold. It was also in accord, in his view, with those Metropolitan Adelaide and Council Wide Objectives which seek to ensure that the location, size and height of signs are in harmony with their surroundings and do not contribute to visual disorder within their locality. Mr Hutchison’s opinion was that “the addition of one double-sided sign, clearly separated from other pylon signs on the site at a height just above the tree line will not lead to a reduction in amenity”. No trees are to be removed to accommodate the proposed sign and the single support pole will be camouflaged by the line of trees along the South Road frontage.
35. In Mr Hutchison’s view, the proposed new sign continues the design theme already in place on the western side of South Road – pylon signs evenly spaced along the road, large in size and high enough above ground for their message to be clearly seen from cars. This by contrast to the situation on the eastern side of the road where Mr Hutchison found that the number, design and type of signs make it difficult to safely decipher the message from a moving car.
36. On the question of third party signs, Mr Hutchison agreed that the signs proposed would advertise “generic” products but this was appropriate in a District Centre zone where a wide range of goods and services are promoted and sold. The overall effect on the western side of South Road would be of a group of signs effectively communicating a range of messages to passers-by, likely to include messages relating to the District Centre or to goods sold therein.
37. With regard to Council Wide Principle 233 and the table contained at part (a) of that Principle, Mr Hutchison was of the view that the character of existing signage on the subject land, together with the considerable length of the South Road frontage, meant that a rigid adherence to the quantitative guidelines set out in the Principle was not warranted. In his opinion, given the length of this frontage and the scope to place the proposed sign in a location which would allow it to be regularly spaced in relation to existing signs, the siting of an additional pylon sign would be orderly, even though “... ‘mathematically’ the number of signs as per the table (PDC 233(a) [sic] is exceeded for this site”.
38. More generally in Mr Hutchison’s view, while the proposed sign appeared to be at odds with the letter and quantitative guidelines of some Development Plan provisions, it would not be seriously at variance with the plan overall. In his opinion, when one considers the character of the locality and the existing orderly and well-spaced pattern of signs on the western side of the road, the proposed sign in the proposed location would not create, or add to, clutter or visual disorder along the South Road frontage.
39. Mr Hutchison observed that there would be a requirement for occasional pruning of the trees on the eastern boundary of the subject land to prevent them from obscuring the existing signs on the land and that pruning of the vegetation adjacent to the proposed sign would also be required from time to time. Following the view of the land, he indicated that that there would be merit in relocating the proposed sign a few metres to the north of its intended location in order to move it further away from an existing tree to the rear of the bus shelter. This would reduce the likelihood of the need for any pruning in the short term.
    

Assessment

40. The proposed sign does not exceed 10 metres in height. It is neither complying nor non-complying in the zone and needs to be assessed on its merits.
41. I prefer Mr Hutchison’s evidence to that of Mr Tokley. Mr Tokley’s approach has the character primarily of a checklist. He has found a number of objectives and principles with which he finds the proposed sign to conflict and has concluded that there is a sufficient number of these to describe the proposal as seriously at variance. He has also, I believe, placed undue weight on the quantitative guidelines set out in the Development Plan which relate to one main display per site and one sign for every 80 metres of frontage. These are not mandatory provisions and need to be interpreted in relation to all relevant provisions of the Development Plan.
42. The intent of the zone is to accommodate “... a range of shopping, office and administrative facilities ...” and to “... accommodate shopping facilities that provide mainly convenience goods and a sufficient range of comparison goods to serve major weekly shopping trips”. The intent of Policy Area 7 is to provide “...the main focus of shopping, office and administrative facilities for the northern portion of the City of Marion and adjacent council areas ...” and to meet the needs of a primary catchment area of 30,000 people. The proposed sign will advertise goods for sale and other services in a zone which has shopping as its primary activity and purpose. It fits well with the desired character of the zone, therefore, in my opinion. This is a District Centre, a type of centre towards the top of the hierarchy of centres established in the Development Plan. It has two major stores, a discount department store and over 60 smaller shops. It thus seems likely that many goods advertised from time to time on the proposed sign will be sold at shops within the District Centre, even if they are not directly linked in the advertisement to a specific tenant of the centre.
43. There are no provisions in the relevant Development Plan which explicitly distinguish between third party and first party signs. There are some Metropolitan Development Plans which distinguish between third party and first party signs, but the relevant Development Plan for this matter is not one of these. The distinction between such signs is not always clear-cut in any case since, as was indicated in this matter, the proposed signs might well be used to display both first party and third party advertisements.
44. Previous cases in this Court have also considered the issue of third party signs on occasion – see, in particular, Keast v City of Salisbury [1999] SAERDC 55; and Keast v City of Marion [1999] SAERDC 74. In the latter, Commissioner Hutchings addressed the question of third party advertisements at para 5:

A close reading of the Development Plans for metropolitan Adelaide and for the metropolitan councils reveals that guidance of outdoor advertisements away from some areas and towards others is the applicable planning precept. In doing so, there is a recognition that, in general, the message is not the issue. A message advertising a product or service available on the land on which a hoarding may be erected can be just as offensive in terms of its visual impact as one advertising a generic product or service. What is at issue is the size, height, shape etc of the hoarding.

45. I accept the view expressed by Commissioner Hutchings in Keast v Marion that:

... in general the message is not the issue.

46. Signs that relate to the building to which they are attached or adjacent may make more contribution to the meaning or legibility of a locality than third party signs of a generic nature, unrelated to that building or locality, and might therefore be said to make more contribution to enhancing the amenity and appearance of an area. However, third party advertisements clearly have a place in the urban environment and I can see no objection to the location of such signs adjacent to a District Centre, a higher-level shopping centre.
47. In Keast v Marion Commissioner Hutchings went on to say the following at para 6:

... the Plan seeks to guide advertisements away from those parts of urban areas - such as residential areas, parks and recreation areas and precincts of particular visual qualities - to those parts where trade and commerce take place; ie, where goods and services are promoted and sold. In these latter, however, the Plan does not see “open slather” as appropriate; rather it seeks to ensure that the size, height, shape etc of advertising hoardings are in scale with the characters desired for the particular business localities.

48. I do not believe that the proposed sign will detrimentally affect the amenity of the locality which, on the evidence of both experts, is poor on the eastern side of South Road and somewhat better on the western side. With regard to its relationship to the existing signs on the western side, I accept Mr Hutchison’s view that the existing signs are generously spaced and that there is an absence of clutter on this side of the road. The proposed sign is to be located in a space between the existing Caltex and Hungry Jacks signs which, by Mr Tokley’s assessment, are some 145 metres apart. In this situation I do not believe that there can be any support for the proposition that an additional sign will lead to clutter or will prevent “reasonable exposure” to other advertising on the site or nearby sites.
49. This Court and its predecessors have also considered on a number of previous occasions how to interpret those development plan provisions which require advertisements to enhance the appearance of a site or locality. For example, Gerard Industries Pty Ltd v South Australian Planning Commission, PAT No. 797 of 1989, at p 8 of which it was stated that:

It is difficult (but not impossible) to come to a conclusion that any sign will enhance an area.

50. Likewise, in Keast v City of Salisbury, referred to above, Commissioner Wallman had the following to say at para 43:

It is difficult to envisage how advertising could enhance or improve the character and amenity of an area of the Industry Zone. Adverse visual impacts do not, of course, necessarily follow from the display of advertising, but premises, such as those on which businesses are established, need to be identifiable and identification advertising, - indeed any advertising - needs to be clearly seen by those to whom it is directed and may not visually enhance or improve an area ...

51. It is likewise difficult to argue, in the present matter, that the proposed sign – or any sign – will visually enhance or improve the area. Nevertheless, having regard to the nature of the subject land, as a District Centre and also to the nature of the locality on both sides of South Road, I see no objection to the erection of the proposed sign. In my planning judgment it is consistent with the general character of the locality and compatible with other advertisements and advertising displays in the locality. It is well-spaced from the existing signs on the western side of South Road; it is of a similar size to the main Castle Plaza sign, albeit with a different orientation; and it has a simple and straightforward design.
52. With regard to Mr Tokley’s concern about the potential damage to vegetation, I do not see this as a significant objection to the proposal. Advertising signs, by their nature, need to be seen. The trees on the site are not identified as “significant” and there is nothing to prevent the owners of the land from pruning them from time to time to improve the visibility of the existing signs or the shopping centre from South Road.
53. I have considered all of the evidence that was put to me, the submissions of counsel and everything that I saw on the view. My decision is that the appeal should be upheld. I do believe, however, that it would be appropriate to amend the proposal plans slightly to relocate the sign a short distance to the north for the reasons suggested by Mr Hutchison.
54. I informed the parties of this conclusion by memorandum dated 29 January 2009 and invited them to amend the plans to relocate the sign as suggested, and also to agree appropriate conditions of consent. I received amended plans and three suggested conditions on 19 June 2009 and I have incorporated these into my decision which is set out below.

Decision

55. The Appeal is upheld. Development Plan consent is granted to Development Application No. 100/260/2008 to construct a free standing sign on the land situated at 990-1016 South Road, Edwardstown, being the site of the Castle Plaza Shopping Centre, subject to the following conditions:
    
    1. The development shall proceed in accordance with the plans and details forming part of Development Application No. 100/260/2008, being drawing numbers 1 of 2(F) (“Locality Plan”) and 2 of 2(F) (“Site 1 Elevations”) drawn by KAS and dated 4 April 2007, as amended and marked as Exhibit A3, except where varied by the following conditions of consent.
       
    2. The advertisement(s) and supporting structure(s) shall be prepared and erected in a professional and workmanlike manner and maintained in good repair at all times, to the reasonable satisfaction of the Council.
       
    3. Lighting associated with the signs shall be of an intensity that will not cause an unreasonable light overspill nuisance to adjacent occupiers or be an undue distraction to motorists, to the reasonable satisfaction of Council.