Australian Leisure And Hospitality Group Pty Ltd v Brisbane City Council [2016] QPEC 66 (2017) QPELR 123

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Australian Leisure And Hospitality Group Pty Ltd -v- Brisbane City Council [2016] QPEC 66 PARTIES: AUSTRALIAN LEISURE AND HOSPITALITY (Applicant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: 3963/15 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 9 December 2016 DELIVERED AT: Brisbane (Ex tempore) HEARING DATE: 28 November 2016, 29 November 2016, 30 November 2016, 1 December 2016, 9 December 2016 JUDGE: Rackemann DCJ ORDER: The appeal is allowed CATCHWORDS: PLANNING AND ENVIRONMENT - local laws – appeal against refusal of a licence for a digital advertising device on a heritage listed hotel – whether device appropriate in the prevailing environment – whether device would have an unacceptable impact on the hotel and, in particular, its heritage value COUNSEL: B D Job for the appellant M A Williamson for the respondent SOLICITORS: Anderssen Lawyers for the appellant Brisbane City Legal Practice for the respondent -- 1 of 14 -- 2 [1] This is an appeal under section 475 of the Sustainable Planning Act, against the council’s decision to refuse to grant a licence under the Advertisements Local Law 2013 (the Local Law) to permit the exhibition of an advertisement on land situated at 695 Lutwyche Road at Lutwyche. The land is the site of a prominent hotel, the Kedron Park Hotel, which is situated on the south-eastern corner of the intersection of two major roads, namely, Lutwyche Road and Kedron Park Road. The proposed advertisement is a single-sided electronic or digital advertising device with a display area of 30 square metres (10 x 3 metres) and a charcoal grey metal cladding skirt beneath, giving a total area of 33.5 square metres. The sign is for the display of third party advertising. The sign is proposed to be erected as a roof sign, in that it is to sit on top of a relatively recent (in historical terms) southern extension of the hotel building. [2] Exhibiting advertisements is regulated by the Advertisements Local Law 2013. That local law provides for three kinds of advertisements, namely: a permitted advertisement, which may be installed without an application for approval provided it complies with certain conditions; A prohibited advertisement which is as the name suggests, an advertisement which no approval may be obtained, and a generally inappropriate advertisement, which is an advertisement which is classified in a subordinate local law as generally inappropriate, but which may be approved where it meets relevant criteria. [3] Section 8 of the Advertisements Local Law provides that: An advertisement must not be exhibited unless it is a permitted advertisement or unless the council’s approval has been obtained. [4] Pursuant to section 10 of the local law, the council, in exercising its discretion whether to approve the exhibition of an advertisement, must have regard to a number of things which, relevantly, include the criteria and conditions prescribed under a subordinate local law. [5] Pursuant to section 10 (2), the council may only approve the exhibition of an advertisement if:- (a) the advertisement is structurally sound; and -- 2 of 14 -- 3 (b) the advertisement causes no significant obstruction of, or distraction to, vehicular or pedestrian traffic; and (c) the dimensions of the advertisement bear a reasonable relationship to the dimensions of surrounding buildings and allotments so that – (i) its presence is not unduly dominating or oppressive, and (ii) it does not unreasonably obstruct existing views, and (d) the advertisement compliments, or at least does not unreasonably detract from desirable characteristics of the natural and built in environment in which the advertisement is exhibited; and (e) the approval is consistent with the subordinate local law. [6] The consideration in section 10(2)(d) mirrors one of the objects of the local law. It is not contended by, on behalf of the council, that the subject advertisement would offend that consideration, nor indeed that it would otherwise be inconsistent with the objects of the local law. The only consideration in section 10(2) on which the council relies, is whether the approval is consistent with the subordinate local law. [7] The relevant subordinate local law is the Advertisement Subordinate Local Law 2005. That local law classifies advertisements depending upon the city environment to which they are to be exhibited and whether they are exhibited on a heritage place. The Kedron Park Hotel is a heritage place for the purposes of subordinate local law although is not on the State Heritage Register. [8] The city environment in which the subject site falls is, pursuant to the subordinate local law, taken to be a residential environment because of the zoning which applies to the site. Within such an environment, the Advertisements Subordinate Local Law classifies a roof sign to be a generally inappropriate type of advertisement. As has already been noted, that is a type of advertisement which, nevertheless, may be approved upon application. [9] The subordinate local law, sets out criteria for assessing applications for advertisements. Section 8 provides a council “will have regard to” a number of matters, being: -- 3 of 14 -- 4 (a) whether the advertisement is acceptable in the City Environment in which it is to be exhibited; and (b) whether approval would satisfy the objectives of the local law; (c) the conditions in schedule 4; and (d) the criteria in schedule 5. [10] The conditions in schedule 4 are those which approval of an advertisement is to be subject “unless the instrument of approval says otherwise”. The conditions are, therefore, not mandatory, but, nevertheless, do provide some guidance in considering an application. [11] The criteria in schedule 5 includes criteria for assessing all applications for approval, as well as criteria for assessing application for approval of particular types of signs, together with criteria for generally inappropriate advertisements. The criteria for the latter are as follows: (1) An application for approval of an advertisement classified as “generally inappropriate” in schedule 3, will be required to demonstrate that there are special circumstances which justify the approval of the advertisement on a particular site. (2) “special circumstances” may include, but are not limited to the following: (a) the site does not exhibit the usual valued characteristics of the city environment in which it is situated; (b) the site has characteristics similar to another city environment in which the advertisement is classified as permitted or able to be approved; (c) the type of the proposed advertisement is particularly appropriate to the city environment to which it is to be situated; (d) there is an element of public safety or community benefit advertising proposed for the advertisement that contributes to its appropriateness on the proposed site. [12] It may be noted that the list in subparagraph (2) is not an exhaustive list. Further, it is not the case that by establishing one or some of those circumstances, the application is thereby is entitled to approval. It is a matter of assessment and the exercise of discretion, at the end of the day. Further, it should be noted, as is common ground between the parties, that the criteria contained in the Advertisement Subordinate -- 4 of 14 -- 5 Local Law are not an exhaustive statement of all matters which could be relevant to the exercise of the council’s discretion. They are, simply, nominated criteria to which regard is to be had until exercise of a more general discretion. [13] It is the environment in which the subject site is taken to fall which results in the proposed sign advertising being classified as generally inappropriate. As is also evident from the provisions already extracted, the special circumstances provisions include a consideration of extent to which the site exhibits the usual valued characteristics of that environment or has characteristics similar to another environment, or whether the type of the proposed advertisement is particularly appropriate to the environment to which it is situated. In this case, although, technically, the site is in a residential environment so the environment in which the hotel sits is far from a typical residential environment. [14] The environment in which the hotel sits, is dominated by major road infrastructure. Directly in front of the site, the Lutwyche Road corridor is approximately 67 metres wide and includes three southbound and three northbound lanes of Lutwyche road: two northbound lanes for the Airport Link on-ramp and two northbound lanes from the Airport Link off-ramp. In addition to the road corridor and to the west, is a northern busway corridor and Kedron Road Busway Station, which is approximately 120 metres to the north-west of the site. As Mr Scott, the heritage expert called by the appellant, observed the other uses are primarily institutional and commercial, rather than residential in nature. [15] There is a residential area to the east of the hotel, as well as high density residential development to the west, on the other side of the transport infrastructure, but those areas are physically and visually separated from the hotel site. In such circumstances, is unsurprising that the town planning consultant called by the council, a Mr Brown, acknowledged that leaving any the impact on the hotel itself to one side, the site represents a good site for an advertising sign such as this. Further, the council accepts that there is nothing about the wider environment which makes this site an unsuitable one for the advertisement. [16] That, in turn, explains the council’s acceptance that the advertisement is consistent with the object of the local law that advertisements must not unreasonably detract from the desirable characteristics of the natural and built environment in which the -- 5 of 14 -- 6 advertisements are exhibited. And, also, explains why the council does not rely on the criteria in section 8(a) and (b) of the Advertisements Subordinate Local Law. This case is limited to whether the advertisement would have an unreasonable impact upon the hotel itself, particularly having regard to its status as a heritage place. [17] I have noted that the sign is a roof sign, although, it is a somewhat a-typical roof sign in the sense that it is not perched on top of, or set within the roof of those parts of the heritage hotel which give the hotel its significance. That is: the built form from the 1920s and earlier. Rather, it is a roof sign because it sits on top of a low level southern extension from the side or rear of the hotel. It will be observed, principally, against the backdrop of the side or rear wall of the older part of the heritage building. [18] The Advertisement Subordinate Local Law contains conditions which include a condition that in the case of a roof sign, such advertisements must not exceed five square metres, in order to conform to the condition. The subject proposal is, obviously, much greater than that. As I have already noted, the conditions are not mandatory. [19] It should be noted that s 8 of the criteria, in the subordinate local law, states that: Large roof signs are more likely to be acceptable where they are positioned less than 10 metres above the ground – [20] as is the case here: ... and are located in a city environment in which a billboard sign and a pylon sign are designated “A” in schedule 3. [21] The city environments which conform to that, are the business centres environment or industry environment. What that provision recognises is that large roof signs may be more acceptable depending upon the environment in which they are located. Whilst the subject site is not in one of the city environments in which a billboard sign or a pylon sign is designated “A”, it is, in many respects, closer to that, in fact, than to that the residential environment which it finds itself in. It is unnecessary to discuss that any further, either because the council accepts, as I have already noted, that the environment in which this site finds itself in is, as a matter of fact, an appropriate environment for a sign such as this, subject only to the impact on the hotel itself. -- 6 of 14 -- 7 The determinative issue, ultimately, therefore is the impact of the proposal on the hotel given its heritage significance. The hotel building has three components, one being the component built in 1881 on the corner and with a frontage to each of the streets. The next is an extension which was added in 1920 and which wraps around the 1881 part of the building, and has frontages to each of the roads. The third component is the more recent modern, low-level extension to the south. It is common ground that that low-level extension has no significant heritage significance. [22] The council’s heritage citation summarises the history of the hotel as follows: The Kedron Park Hotel was built in 1881 for owner and licensee Frederick Morris, a stepson of local resident Judge Alfred Lutwyche. The hotel was designed by Brisbane architect John R. Hall. It was built on the intersection of what were then Gympie and Bald Hills Roads, and opposite the former Kedron Park Racecourse. This racecourse, the home of unregistered racing until it was closed in 1956, provided a ready clientele for the hotel. So for many years illegal starting price bookmakers operated in the front bar and two-up games were held on the first floor. Under ownership of the James Cavill a brick extension was added on the Lutwyche Road frontage in 1920. The licensees also ran a profitable zoo behind the hotel, famous for its crocodile and swearing parrot. [23] The statement of significance in the citation is as follows: ...it is significant: in that (1) as a hotel built to service Lutwyche and Wooloowin, when they were beginning to redevelop into housing estates, it is important in demonstrating the evolution or pattern of the city’s or local area’s history; and (2) as a hotel with its 1881 components substantially intact, in addition to its 1920 additions, it demonstrates a rare, and uncommon, or endangered aspects of the city’s or local area’s cultural heritage; and (3) as a landmark corner hotel with a varied and sometimes notorious history, it has a strong or special association with the life or work of a particular community or cultural group for social, cultural or spiritual reasons. [24] It should be noted that neither the hotel, nor any particular part of it, was said, in the citation, to be significant for aesthetic reasons - that being a different ground of potential significance under the council’s heritage register criteria. [25] The value of the hotel as a landmark corner hotel is obviously primarily appreciated by viewing that part of the hotel which presents itself to the corner; namely, by looking in a generally south-easterly direction at the hotel, as indeed is the perspective which appears in the photograph in the citation itself. From that location one can -- 7 of 14 -- 8 readily appreciate the 1881 component of the building, with its colonial architecture, including verandahs, its roof structure, chimneys, and other characteristics, which are intact. One can also appreciate the 1920s additions. From that perspective the proposed sign will have no impact at all, since it will not be able to be seen. [26] There is at least a theoretical prospect of viewing the sign as one progresses in a south- bound direction past the corner, looking back at the hotel, in a location over the top of the more modern extension. That is a restricted view, which would be quite fleeting, if one was travelling by motor vehicle, and sensibly, the council did not place great reliance on that. [27] The principal view of the sign, were it to proceed, would be to those viewing the building whilst travelling northbound along Lutwyche Road. There the sign would be seen against the backdrop of the rear of the side of the 1920s extension of the building, on top of the roof of the more modern extension. That side of the building is adjacent to the hotel car park. The absence of buildings in the car park, and the angle of the road is such that that part of the building becomes visible to traffic travelling in a north-bound direction along that part of Lutwyche Road. [28] The sign, being a modern digital sign, is obviously not a sign of a kind which is in keeping with the original character of the building. In that regard criteria 3 provides that: Where an advertisement is to be located on heritage place, more favourable consideration would normally be given to an advertisement which is in keeping with the original character and period of the heritage place. [29] That provision, however, speaks of “what will be given more favourable consideration”. It does not set its face against the approval of a modern sign such as this, in the context of a heritage place. [30] The council placed a deal of reliance upon provisions, which deal with the treatment of building facades, including in relation to heritage places. In that regard the criteria for assessing all applications for an approval include the following: (2) Facades (a) an advertisement, including supporting infrastructure, fixing devices and services, should not detract from the appearance of a building facade; -- 8 of 14 -- 9 (b) an advertisement should be considered as another design element to be incorporated in the existing elevational treatment of a building, in a manner which respects the style, scale, alignments, patterns and other architectural qualities of the building; and (c) advertisements should generally be confined to flat surfaces, such as plain walls, spandrels or parapets and should not be positioned across windows, columns or other design features. [31] It was common ground amongst the parties that subparagraph (a) should be read as if it was subject to the qualification of, “unreasonably”, or the like, before the word “detract”. [32] The council asserted that the proposal offends sub-paragraphs (a) and (b). [33] The conditions in the Advertisements Subordinate Local Law include the following with respect to heritage places: (1) An advertisement on a heritage place must be designed in accordance with a ‘facade grid’ analysis. This analysis is to – (a) identify the grid established by the elements of a facade, such as the windows, doors, awnings, cornices, parapets, columns, and so on; (b) indicate the most appropriate positions in which an advertisement may be located. (2) An advertisement is generally to align with the grid and be positioned within a flat surface such as a spandrel, parapet or panel between aprons. [34] As the appellant pointed out, however, those provisions relate to facades. The ordinary meaning of facade is a face or front, or the principal face, of a building. The wall against which the subject sign would be seen is evidently not the front of the building. It is quite evident that the building, including its 1881 and 1920s parts - they being those of relevance from a heritage perspective - were designed to present their fronts as those parts of the building which are directly orientated towards the two roads. That part of the building against which the sign would be seen represents the side or rear of the building. [35] It was submitted that, nevertheless, because it is visible from the road, the side represents a “face” of the building. The ordinary meaning of a face in this context, however, is the most important – is “the most important side; the front column, the face of the building” (See Macquarie Dictionary). -- 9 of 14 -- 10 [36] It seems to me that the provisions on which the council relies are understandably concerned with the care that should be taken with the facades of buildings as those terms are commonly understood, which, in the context of this building, would be those parts which directly face each of the roads, rather than the side of the building. That does not mean, however, that the side of the building is irrelevant. It has already been noted that it is common ground between the parties that the criteria contained in the Advertisements Subordinate Local Law are not exhaustive. Even if this part of the building was said to be a facade, the criteria ultimately calls for a consideration as to whether the proposal would unreasonably detract from the appearance of that part of the building, or would appropriately respect its qualities. For the reasons which follow, I am satisfied that this advertising device does. [37] The council rely primarily upon the analysis of Mr McDonald, who has expertise in heritage matters. He clearly does not see signs of this kind as being appropriate in the context of heritage buildings at all. [38] In this particular case, whilst he properly acknowledged that the subject side of the building is not as important, in heritage terms, as what I have described as the facades of the building, and whilst he conceded that even in relation to this wall of the building, the sign is set at that end of that wall where it has least impact, he nevertheless saw that side of the building as having some importance in the context of the heritage significance of the place. His view was that any signage, in the context of the building, -including at that location - should be visually discrete, relevant to the particular building, and incorporated into the architecture of the building, using the façade grid approach. He saw the proposed sign as a new, large, dominant, and uncharacteristic visual element, introduced into a visually sensitive place. He saw the sign as both obscuring the view of part of the building, and of distracting from its visual prominence, and thus having an adverse impact on the building in its setting. [39] Matters of heritage, and the extent to which development including the erection of advertising signs, will impact upon such values is often a matter of subjective assessment upon which reasonable minds may differ; however, it is worth bearing a number of things in mind in relation to this particular heritage site and the position of the proposed sign. -- 10 of 14 -- 11 [40] The basis for the significance of this hotel, in accordance with the citation in the heritage register, has already been extracted. I found Mr McDonald’s attempts to link the proposed advertising sign and its impact with any significant diminution of the significance of the hotel, as described in the heritage citation, to be unconvincing. [41] It has already been noted that the sign would have no effect on the primary view of the hotel as a landmark corner hotel, given that the sign is to be around the back or side, well away from those parts of the hotel which present itself to the corner. Further, it is difficult to see how the sign would have any significant impact on the first statement of significance, which is related to the value of the building in demonstrating the evolution or pattern of the city and local area’s history, in that it was a hotel built at a certain time. That will still readily be appreciated. Perhaps the most potentially relevant of the statements of significance in relation to the impact of any advertising sign is the second, which speaks of the building’s demonstration of rare, uncommon, or endangered aspects of the city or local area’s cultural heritage, and in that regard draws specific attention to the fact that its 1881 component is substantially intact, in addition to its 1920 additions. [42] The subject proposal will not have any impact upon the appreciation of the intactness of the 1881 component on the building. The principal viewing aspect, as I have said, will be from north-bound, traffic along Lutwyche Road. As the photo montages demonstrate, the advertising sign will appear in front of part of the 1920 additions, rather than the 1881 component. [43] This part of the citation does also refer to the 1920 additions. Those additions, as I have said, wrap around the 1881 component, and present themselves to both streets. Obviously the sign will have no effect upon the appreciation of the 1920 component, so that part of the 1920 extension which addresses Kedron Park Road. Further, the advertising sign does not impede the appreciation of either the 1881 or 1920 addition if one is in Lutwyche Road looking directly at the face of the building as it faces Lutwyche Road. From that position the advertising sign appears perched on top of the more recent extensions. [44] The only position from which there is any intrusion into an appreciation of the 1920 building is as one looks on an angle to the side of the building as one is heading northbound along Lutwyche Road, on the approach towards the hotel. It is true that, -- 11 of 14 -- 12 from that position, the sign will obscure the view of some part of the 1920 addition, but the extent to which it does so is relatively minor. It should be noted that that is not all that the advertising sign would obscure. In the main it would obscure part of the more recent additions, which comprise an upper level screen around the plant and equipment in the area which is relatively unsightly at the minute, and certainly does not add anything to the heritage significance of the building. [45] It was pointed out that from the perspective of concern to the council there are aspects of the wall of the 1920 building which can be appreciated. These include masonry cladding, timber double-hung windows, brick chimneys, and the roof form of the 1920 building, as well as, in the background, the roof form of the 1881 component. [46] The advertising sign will not affect the view of the roof form of the 1881 component. It would obscure a relatively minor part of the bottom section of a part of the 1920 roof form, but the general roof form will still be readily apparent and readily able to be appreciated. Depending on the particular viewing point the sign will obstruct part of the masonry wall and one of the double-hung windows, but one will still readily identify the 1920 component of the building, and appreciate that its sides include each of the elements to which I have referred. [47] It should be noted that this would certainly not be the first element which would hide part of the side or rear wall of the 1920 extension. The more recent building extension obliterates what would have been the presentation of this wall of the building at the lower level, for the entirety of this perspective. Further, there is, as I have already noted, a higher section of that extension which provides a screen to plant. The heritage significance of the building, as appreciated by the heritage architects, including Mr McDonald, certainly survived that much greater interference with a view of part of the side wall. The proposed advertising sign represents a relatively minor intrusion at the least sensitive end of the least sensitive wall of the building. [48] It should be recognised that the heritage place is, of its nature, a commercial building. It is a robust building in a robust context, as Mr Scott observed, and it is seen in the context of other signage, both on and off the site. [49] In the joint report Mr Scott reached the conclusion that the sign did not have an undue impact upon the hotel and its heritage significance. In forming that view he pointed out that the proposed sign is not located on the street facade of the hotel, but rather, -- 12 of 14 -- 13 around the corner against a relatively side wall on the lower flat roof of the relatively recent addition. He pointed out that the significant parts of the heritage building are centred around the street corner, with the 19th century verandah front of the original building, and the later 1920s additions to the south and east. Those facades of the building have well-considered and decorated fronts and simple side walls. What Mr Scott referred to as the “hierarchy of aesthetic significance”, was considered in the location of the sign. He pointed out the sign has been well set back from the frontage of the building, at an angle to be seen within the outline of the building when travelling north along Lutwyche Road, and not seen when travelling south. The impacts of the sign are therefore localised to the southern side of the subject building where there are other structures, including rooftop air-conditioning plant and the like, that side of the building is, as has been observed, of a low heritage significance than the other sides of the building. As he further pointed out, the heritage place is a “pub”. The use and character of which are robust, rather than fragile. Further, it is a relatively large-scale building, which can accommodate a large-scale sign, if carefully placed. I consider those points to be well made. Overall, it seems to me that Mr Scott’s assessment is a more realistic assessment of the impacts of this sign as positioned on this building in its context, than is the assessment of Mr McDonald, whose assessment appears to have been influenced by his view that signs such as this are simply not appropriate in the context of heritage buildings. It seems to me that whilst he acknowledged various of the points made by Mr Scott, he gave insufficient weight to the particular characteristics of this building, and to the particular facts and circumstances which militate against this sign having any undue impact when placed in this particular part of this particular heritage place. [50] In the circumstances, it seems to me that the proposal would not unreasonably detract from the appearance, either of the wall upon which it is to be located, nor, more importantly, of the building as a whole. It is fair to say that its position, in particular, has shown appropriate respect to the building, including the wall of the building upon which it appears to be located, and it would not unduly impact upon the building as a whole, or its heritage significance. [51] I appreciate that, as an advertising sign, it aims to attract the eye of the passer-by, but to say that this will serve to distract the passer-by from the hotel, or somehow -- 13 of 14 -- 14 unreasonably detract from the prominence of the hotel building, or from this significance, from a heritage perspective, is, I think, going too far. [52] In the circumstances I have concluded that there are special circumstances which warrant the approval of the advertisement, notwithstanding that if its classification is generally inappropriate under the Subordinate Local Law. [53] I have not to this point referred to the element of public safety and community benefit upon which the appellant relied. The fact that this is an electronic sign means that it is capable of being called into use for the public benefit during emergencies. The read Advertisements Subordinate Local Law expressly contemplates conditions of approval which would require it to be available for those purposes. Mr Ovenden, the town planner called by the appellant, suggested that use may be greater. [54] It is appropriate, I think, that such a condition be imposed, and it is a matter of benefit which is of relevance, although it is not something to which I gave determined weight in the context of this case. In this case the most important consideration was the impact of the sign upon the hotel and upon its heritage significance, and my acceptance that the advertising sign would not have an undue impact in that regard, which is the primary basis for concluding that the appeal should be allowed. -- 14 of 14 --