PEREGRINE CORPORATION P/L v CITY OF TEA TREE GULLY & ANOR [2009] SAERDC 6 (11 February 2009)

Last Updated: 13 February 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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PEREGRINE CORPORATION P/L v CITY OF TEA TREE GULLY & ANOR

[2009] SAERDC 6

Judgment of Commissioner Mosel

11 February 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for a "blade-wall" sign - Local Commercial Zone - refused by the Coucil - proposal considered to be an "advertising hoarding" - the word and meaning of "advertisement" considered - principal questions to be resolved are concerend with its design in relation to the existing building and its amenity impact on the adjacent building, whether it affords adequate exposure to advertise the adjoining land and premises and whether it represents excessive signage - Schedules 2 and 3 of the Development Regulations 1993 are a factor to consider - proposal considered to be sufficiently integral to the design of the existing building - however, it unreasonably interferes with advertising opportunities on adjoining land, represents excessive advertising and impairs the views from adjoining land - appeal dismissed and the Council's decision to refuse consent affirmed.

Development Act 1993; Environment Resources and Development Court Act 1993; Development Regulations 1993, referred to.

Kouflidis & Jenquin Pty Ltd v Corporation City of Salisbury (1982) 29 SASR 321; District Council of Mallala v M & B Farmer Nominees Pty Ltd [2000] SASC 117, considered.

PEREGRINE CORPORATION P/L v CITY OF TEA TREE GULLY & ANOR
[2009] SAERDC 6

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. The land to which this appeal relates is situated at 742 North East Road, Holden Hill (“the subject land”).
2. In December 2007, Peregrine Corporation Pty Ltd (“Peregrine”) applied (Development Application No. 070/92998/2007) to the City of Tea Tree Gully (“the Council”) for (provisional) Development Plan Consent to undertake on the subject land a development described in the development application form as follows:

Construction of a “blade wall” containing illuminated signage box and associated advertising signage displays.

3. The Council treated the proposal as a Category 3 development and undertook the requisite public notification. The joined party, Mr D Rovolopoulos, was the sole representor. In due course the Council refused consent advancing as its reasons the following:
   1. The application does not integrate well with, and is not complementary to the design of building that it relates to.
   2. The signage obstructs views of other advertisements displayed on the adjacent site.
   3. The blade wall advertisements is considered excessive and reduces the effectiveness of other signage already displayed on the site and advertising the same product.
   4. The proposal is considered to be at variance with Council Objective 5, 6, 7, 8, 9, 10, 11, 12, Council Wide Principles of Development Control 53, 54, 55, 57, 62, 66, 67, 68 and Local Commercial Principle of Development Control 1.
4. There being no settlement reached at the conference held pursuant to s 16 of the Environment Resources and Development Court Act 1993 the matter proceeded to hearing. Mr Henry and Mr Duncan appeared respectively for Peregrine and the Council. Mr J Rovolopoulos appeared for the joined party. Expert evidence was received from the following:
   • D Bills, Planning Consultant, Statement of Evidence Exhibit A4;
   • J N Hayter, Landscape Architect/Urban Designer, Statement of Evidence Exhibit A3;
   • W Bell, Planning Consultant/Architect, Statement of Evidence Exhibit R2;
   • R Gagetti, Planner (employed by the Council), Statement of Evidence Exhibit R3;
   • P R Emes, Planning Consultant, Statement of Evidence Exhibit A.

The Subject Land

5. The subject land is depicted on Map TTG/28 in the Development Plan for the Council; the relevant version in respect of these proceedings being dated 17 May 2007 (“the Plan”). Map TTG/28 shows that the subject land is within the Local Commercial Zone (“the Zone”).
6. The subject land has an area of about 1627m2 and a frontage to North East Road of 36.5m. It is occupied by a BP service station. The use of the subject land was more particularly described by Mr Gagetti in the following terms:

An integrated service station complex with motor refuelling facilities, automatic carwash, retail outlet and associated car parking, signage and landscaping.

7. The intersection of North East Road and Grand Junction Road is about 100m to the north east of the subject land. The evidence of Mr Gagetti is that this road carries about 41,200 vehicles per day.
8. Mr Gagetti summarised the configuration of the various components of the existing use of the subject land as follows:

The retail component of the land use is located along the southern property boundary, whilst refuelling facilities are located central to the site and an automatic carwash abuts the eastern property boundary. The subject site contains a frontage to both North East Road and Jacobsen Crescent. However, vehicular access to the site can only be gained from North East road whilst pedestrian access to the land can also be gained from Jacobsen Crescent.

9. It is also relevant to note that the subject land, in common with most other properties within the Zone, can only be accessed from the inward-bound (i.e. south western) carriageway of North East Road. The outward-bound carriageway is separated from the former by an unbroken median strip.

The Proposed Development

10. The development applied for has been undertaken and completed. The application for Development Plan Consent in thus retrospective. The fact that the development applied for has been undertaken is, in many ways, helpful in the assessment of its merits. However, that Peregrine may have undertaken the proposed development without the requisite planning authorisation is a matter that cannot be to the benefit of any party to these proceedings (Kouflidis & Jenquin Pty Ltd v Corporation City of Salisbury (1982) 29 SASR 321).
11. Exhibit A2 (Dwg No. 06/JN709sk02a) describes the proposal as a “new blade wall with integral back illuminated signage box”. The terms “blade wall advertisement” and “blade wall with attached signage and an associated internally illuminated sign box” were used variously by the expert witnesses to describe the proposal. Mr Bills went so far as to describe it as:

[the] Construction of a 5.4 metre high wall (blade wall) attached to an existing building containing an illuminated signage box and associated advertising display.

12. All of the above are intended to convey a picture of a 5.4m high x 3m wide wall attached to the existing building for the sole purpose of displaying advertisements; one of which is illuminated. However, such descriptions are cumbersome and may invite an assessment against the relevant provisions that proceeds on the footing that the advertisement(s) and the blade wall are, and should remain, distinguishable and separate elements of the proposal. While the terms of the Plan outlined below might, at first glance, lend support to this approach there are other considerations.
13. Firstly, the word ‘advertisement’ is defined in s 4 of the Development Act 1993 as ‘an advertisement or sign that is visible from a street, road or public place or by passengers carried on any form of public transport’. In ordinary usage the word ‘advertisement’ can refer to the message or symbol, the area consumed by the message and, in many cases, the object upon which the message is placed.
14. Whether the term ‘advertising display’, which term also appears in the relevant provisions of the Plan, is intended to make the distinction between the message, the advertising area and the object is a question that is not greatly assisted by reference to the Act, the Development Regulations 1993 or the Plan.
15. Secondly, the proposal in its entirety is an “advertising hoarding”: s 4 of the Act. That conclusion is reached as follows:

(1) The blade wall is a “structure” either attached to or forming part of another “structure (i.e. the existing building). It is well established that a word ‘structure’ has a wide meaning. The Full Court in District Council of Mallala v M & B Farmer Nominees Pty Ltd [2000] SASC 117 said thus of the term:

... The wide meaning of “structure” has been preserved by the definition in s 4 of the Development Act. The Shorter Oxford English Dictionary defines “structure” in these terms:
“That which is built or constructed; a building or edifice of any kind, esp. one of considerable size and imposing appearance. 5. More widely: A fabric or framework of material parts put together.”
The width of the statutory definitions in s 4 of the Development Act indicates that it is not necessary for the structure to be of considerable size. The Macquarie Dictionary definition is in similar terms:
“Something built or constructed; a building, bridge, dam, framework, etc.”

(2) The word ‘structure’ is also defined in s 4 of the Act. The definition is:

‘structure’ includes a fence or wall

(3) The Act also defines an advertising hoarding. It is in the following terms:

‘advertising hoarding’ means a structure for the display of an advertisement or advertisements

16. If I am correct in proceeding on the basis that the proposal is an advertising hoarding and the word ‘advertisement’ can have several meanings in its ordinary usage, the amendment suggested by Mr Henry to distinguish the message/logo/advertising area from its supporting background is of little assistance to the Peregrine case.

Planning Context (1) – Locality

17. Reference to the relevant provisions of the Plan makes it necessary to define a ‘locality’. It is also necessary to have regard to certain aspects of the subject land, adjoining land and North East Road.
18. The relevant locality in my view is most usefully depicted in the plan prepared by Ms Bell (Exhibit R2). In brief, it comprises the eastern and western margins of land adjacent North East Road for a distance of about 150m north-east and south-west of the subject land. The western margin comprises the rear yards, fences and gardens of dwellings within the Residential (Tea Tree Gully) Zone and the North East road reserve. The eastern margin comprises the subject land and a range of commercial/retail land uses.
19. The signage on commercial properties in the locality variously comprise free-standing structures, advertisements on movable A-frames situated on footpaths and advertisements that are fascia mounted on single and two storey buildings. Although signs and advertising generally are prominent in the locality when compared with many commercial/retail zones in metropolitan Adelaide, they are, overall, restrained in number and size.
20. The subject land advertises its presence, services and products by way of a 7m high free-standing structure near the front boundary and by various illuminated and non-illuminated advertisements mainly on the façade of the building thereon but also on perimeter fences. It is generally accepted that advertising is a necessary and accepted aspect of commercial and like uses. In my experience, rarely, if at all, do advertisements and hoardings improve visual amenity. However the way in which the subject land has approached the task of identifying its presence, products and services is commendable. I say that without reference to the proposal.
21. The land owned by Mr Rovolopoulos is immediately south of the subject land. It is occupied by a building used for the display and sale of lights and associated products. There are several signs on his land identifying the business as “The Light Factory”. The building is set back about 7.5m from North East Road and its main northern wall (upon which a sign is mounted) appears to be about 6m from the boundary common with the subject land. The verandah, upon which there are fascia mounted signs, projects forward of the main wall of the building.
22. That one or more advertisements or signs on Mr Rovolopoulos’ land may not have the requisite planning authorisation is a factor to be considered when applying Principle 67(e). However for the reasons advanced below it is a factor that carries little weight.
23. The area of land between building and front property boundary of Mr Rovolopoulos’ land is entirely devoted to car parking and associated manoeuvring space. The principal entry to the car park is by way of a driveway that is located immediately adjacent the boundary in common with the subject land.
24. The subject land and Mr Rovolopoulos’ land are accessible only from North East Road when travelling in a south-westerly direction. Unlike the subject land, views of motorists travelling in the left lane to the latter (including the entranceway) are impeded by the topography of the road (being on the brow of a hill), the free standing sign on the subject land and stobie pole. To put it simply, when driving in the left hand lane on the inward-bound carriageway with respect to Mr Rovolopoulos’ land “you are on it before you know it”.

Planning Context (2) – The Provisions of the Plan

25. The sole objective of the Zone is to accommodate small-scale office and commercial uses which are compatible with the amenity of the locality. That goal is supported by Principle 1. Principle 3, by reference to Table TTG/4, lists certain types of advertisements as complying development. This list provides no assistance to the assessment.
26. Principle 2 is in the following terms:

...

2. Freestanding signs should be limited to one such sign for each road frontage of a building or integrated group of buildings.
27. This provision is of little assistance in the assessment. It should be taken on face value. There is no warrant for it to be interpreted as a provision that per se suggests all properties within the Zone should display their presence by way of a freestanding sign in addition to or as a preferred alternative to (say) facia or wall mounted advertisements.
28. There are, however, several Council wide provisions under the heading ‘Outdoor Advertisements’ that speak directly to the proposal:

...
Objective 6: An urban environment and rural landscape not disfigured by advertisements.
Objective 7: Advertisements in retail, commercial and industrial urban areas, and centre zones, designed to enhance the appearance of those areas.
...
Objective 9: Advertising that provides adequate exposure of the name and or primary functions of a site or building without impairing the amenity of the locality in which it is situated.
Objective 10: Advertising that contributes to the desired character of localities.
Objective 11: Advertising that is integrated with and complementary to the design of development with which it is associated.
Objective 12: Advertising that avoids excessive signage and the loss of effectiveness of individual signs.
...

53. 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.

54. 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.
55. 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.

...

57. The scale of advertisements should be compatible with the buildings on which they are situated and with nearby buildings and spaces.

...

67. Advertisements and advertising displays, including hoardings should:

(a) be consistent in size, location and illumination with the other advertisements and advertising displays of the streetscape in which they are located;
(b) be integrated with and complementary to the design of developments with which they are associated;
(c) contribute to the attainment of a co-ordinated advertising theme for a site, building or complex;
(d) be minimised in number in order to increase the effectiveness of individual signs and avoid the proliferation of signage;
(e) afford reasonable exposure for advertising on adjacent sites;
(f) be completely contained within the property boundaries of the subject land; and
(g) be located to avoid the immediate and future damage, pruning or lopping of on-site landscaping and street trees.

68. Advertisements and advertising displays, including hoardings should not be erected:

(a) on a building so as to protrude above the silhouette of the building except when they:
(i) are an integral part of the design of the building; and
(ii) contribute to the attainment of a co-ordinated on-site advertising theme;
...

29. Objective 5 (and supporting text) under the heading of ‘Appearance of Land and Buildings’ is also relevant. It is in the following terms:

...
Objective 5: The amenity of localities not impaired by the appearance of land, buildings and objects.
A city should be an attractive and pleasant place in which to live, as well as being healthy and convenient. If the city dweller is to enjoy looking at his surroundings, attention must be given to the aesthetic qualities of both natural and man-made features. The design of individual buildings should be of high standard and related to adjacent buildings.
Many roads through the suburbs are lined with commercial, residential and industrial development of varying qualities, with uninhibited advertising and a mixture of street signs, street furniture and overhead wires, all of which provide an unwelcome contrast to the attractiveness of the approaches to the city through the ranges. An improvement in the quality of development is highly desirable.
...

30. The Zone might also be regarded, in generic terms, as a ‘business zone’. If that is the case, as Mr Bills’ evidence suggests, Principle 230(g) is for considerations:

...

230. Development within business, centre and shopping zones should conform with the following design principles:

...
(g) outdoor signs, both free-standing and attached to buildings, should be located and designed in such a way as to:
(i) be in scale with the development as a whole, the buildings therein and the desired character of the zone, or otherwise be compatible with the character of the locality;
(ii) not impair the view of, or from, nearby developments; and
(iii) not distract attention from traffic control information.

Assessment

31. In assessing the subject proposal the Court has the assistance of several experts in the fields of planning, architecture and urban design. From their evidence, my own observations of the subject land and locality, the following principal questions are to be resolved:

(1) Is the design and placement of the hoarding such that it will integrate and complement the design of the existing building (Principles 67(b), 68(a)(i), 230(g)(ii) and Objective 11)?

(2) Will the scale and position of the hoarding afford reasonable exposure for advertising adjoining land, in particular the land owned by Mr Rovolopoulos (Principle 67(e))?

(3) Will the addition of the hoarding be consistent with those provisions which speak against the clutter, visual disorder and proliferation of signage generally (Principles 55 and 67(d) and Objectives 6, 7, 9 and 12)?

32. Whether an object or structure is ‘integrated with’ or is ‘an integral part of’ the design of a building is a question that is open to wide interpretation. On this question Mr Bills and Ms Bell held opposing views. The opinion of the former is best summarised in the following excerpt from Exhibit A4 (p 8):

The blade wall in question has been finished in a complementary but contrasting colour to the main building and extends above the height of the main building parapet. The wall includes expression lines taken as a reference from the precast concrete finish treatment to the main building, to the appearance that it is constructed of the same material as the main building.
The wall is in my opinion well proportioned and the protrusion of its height above the main building is neither excessive nor visually disruptive.
On this basis, it is my opinion that the wall itself is integrated and complementary to the design of the main building and exhibits a scale relationship that is compatible with the main building. Furthermore, the height, bulk and scale of the blade wall is in keeping with the scale of development found within the locality including existing signage, the service station forecourt canopy and two storey buildings to the south of the subject land.

33. He conceded that, generally speaking, signage ‘that protrudes above a built form element of a building is ... considered to be a poor urban design outcome’. However, he said that, since the proposal could be regarded as integral to the main building thus satisfying Principle 67(b), the signage overall was coordinated and there exists an harmonious relationship between the scale of the hoarding and the existing building, other provisions such as Principles 57, 68 and 230(g)(i) would also be satisfied.
34. Ms Bell opined that the proposal introduces a new and distinguishable element to the building and, as a consequence, it fails to ‘have the appearance of being a natural extension of the building design’. With respect to the relationship between the main freestanding sign and the proposal she opined as follows:

... the inclusion of another sign for the same product on the site, thereby repeating the existing ones is excessive, not consistent in proportion, size and form with other sign elements and has the appearance of being an after through, dominating the building and site as a whole and not integrated with the design of development with which it is associated.
The on-site advertising theme existing prior to the construction of the subject development as shown in figure 7 was the BP theme with green, white and yellow being the predominant colours and other minor elements advertising additional services on the site integrated in the design of the main sign and the building. The new sign adds another dimension to the signage on the site and is not coordinated with this existing theme, but rather duplicates one minor element in the form of a large new addition to the building and results in a cluttering of the site and the streetscape.

35. The opinions expressed by Ms Bell on this question are not without substance. However, having given anxious consideration to all of the evidence I have decided with some reservation to answer the above question in the affirmative. On the one hand, its position and, to some extent, its proportions and the manner in which it is attached to the existing building has all of the hallmarks of an opportunistic addition to an otherwise well designed building. On the other – and here I am persuaded by the evidence of Mr Bills – enough has been done cosmetically (mainly through the use of similar materials and expression lines) to give the impression that the structure is part and parcel of the existing building.
36. On the second of the above questions the picture is different. Having looked very carefully at the photographic images produced in all of the statements of evidence of the expert witnesses and travelled along the inside lane of the inward-bound carriageway with the express intent of viewing the approach to Mr Rovolopoulos’ land I am left in no doubt that the earliest indication of the presence of the premises thereon will be all but obliterated by the proposed hoarding.
37. In common with the subject land and land further to the south of Mr Rovolopoulos’ land early indication of the presence of the premises situated on his land is by way of advertisements along the northern face of his building and the oblique views to its fascia. I acknowledge that Mr Rovolopoulos’ land suffers some inherited disadvantages. The approved freestanding sign on the subject land is one such disadvantage. Mr Rovolopoulos’ reliance on his building as the principal means to convey identification is another. That said, I am aware of the area of the west facing walls which might be used for identification and advertising generally.
38. Nevertheless, I have concluded that the proposed hoarding is located in such a position as would bring it into conflict with Principle 67(e). Whether the hoarding affords ‘reasonable exposure’ to an adjoining site is not a question that is resolved only by reference to the effect of a proposal on the visibility of existing advertisements (whether approved or not) or by reference only to alternative opportunities for advertising such as on the front façade of an individual building or within its curtilages. Regard must be had to all of the circumstances that have a bearing on its ability to announce its presence to those seeking to access the premises and thus the products or services it offers.
39. Ms Bell and Mr Gagetti both raised the prospect of the proposal, in the event that it is approved, triggering a proposal or proposals for advertising the presence of Mr Rovolopoulos’ land which in turn could trigger similar ‘downstream events’. That reasoning is a factor to consider because, if such circumstances eventuate, it would be contrary to the scheme of the Plan in respect of outdoor advertising. I hasten to add at this stage that the evidence to this effect does not persuade me to give this arm of the Council’s case particular weight.
40. I now turn to the last of the above questions. Mr Bills conceded in respect of the signage overall on the subject land that ‘whilst it has not been minimised, it is not considered to be excessive’. It appears that he has reached this conclusion by the following reasoning:

(1) The range of uses on the subject land, necessitates the use of multiple advertisements consistent with Peregrines other outlets;

(2) The terms and effect of Schedule 2 and 3 of the Development Regulations 1993 limit the extent to which the scheme of the Plan might avoid proliferation and duplication of advertising; and

(3) Any duplication of messages resulting from the proposal would be consistent with that which occurs in the locality.

41. The reasoning in (3) above has little or no support in those provisions of the Plan under the heading of “Outdoor Advertising” and must be rejected accordingly. As to the other aspects of his evidence on this question I am persuaded by the alternative views proffered by Mr Gagetti. In his statement of evidence immediately above Section 10 he opined as follows:

Whilst the size of the sign is considered to be consistent with the character of the locality, the additional advertising area proposed is considered to be excessive having regard to the amount and size of Advertisements that already exist on the land. The existing free-standing sign reaches a height of 7 metres and contains 7 panel signboards advertising the business or products sold by the business, together with an additional sign of the BP logo. It is important to note that the product being advertised on the blade wall is also being advertised on the free-standing sign. The illuminated sign box advertising this product is located in a highly prominent location and of adequate size (approximately 0.8 metres x 1.2 metres) to ensure that a reasonable level of exposure to this product is already provided. For the reasons outlined above, I am of the opinion that the site contains an adequate amount of advertising area to advertise the core functions, services and products sold by the business. The additional advertising area created by the blade wall of some 16.2 square metres is considered to be excessive and in particular contributes to a proliferation of signage which contravenes Council Wide Objectives 9 and 12, together with Council Wide Principle of Development Control 67(c).

42. In his assessment Mr Gagetti has not been influenced by the terms and effect of the aforementioned schedules which might act in contradiction to the strategic intent of the relevant provisions. I acknowledge that the legislative “back drop” is a factor always to be borne in mind. However, Mr Gagetti has, in my view, looked to the intent of the Plan in respect of outdoor advertising and concluded in planning terms that the subject land already has sufficient opportunities available to identify the functions and services on the subject land. Also he properly recognises the presence of the advertisement to be placed on the hoarding in other places on the subject land.
43. For these reasons I have concluded in respect of the final question that the proposal conflicts to an unacceptable extent with Principles 55 and 67(d) and Objectives 6, 7, 9 and 12. These conflicts, together with those identified in the second of the above questions, is sufficient for me to dismiss the appeal. I am reinforced in taking this course by a consideration of Objective 5 and its supporting text and Principle 230(g)(ii). The proposed structure is close to the southern boundary and projects well forward of the frontage of the building on Mr Rovolopoulos’ land. This factor together with its height and overall scale is not, in planning terms, compatible with the setback, scale and context of his building and its curtilage nor is it consistent with the intent of the above principle which seeks to avoid the impairment of views from an adjoining site.
44. The appeal is dismissed and the decision of the Council appealed against is affirmed.
45. There will be an order to that effect.