CPT Manager Limited v Gold Coast City Council [2008] QPEC 6

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: CPT Manager Limited v Gold Coast City Council [2008] QPEC 006 PARTIES: CPT MANAGER LIMITED (ACN 054494307) as trustee for CENTRO PROPERTY TRUST (ARSN 091043793) Appellant V GOLD COAST CITY COUNCIL Respondent FILE NO/S: BD 3013 of 2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 7 February 2008 DELIVERED AT: Brisbane HEARING DATE: 24, 25 January 2008 JUDGE: Alan Wilson SC, DCJ ORDER: 1 Appeal allowed 2 Liberty to apply on 7 days notice in writing CATCHWORDS: PLANNING – VISUAL AMENITY – whether proposed sign on supermarket offends provisions of planning scheme concerning visual amenity – architectural and design merit of proposed sign Our Living City – Gold Coast Planning Scheme 2003 COUNSEL: W Cochrane for appellant J D Houston for respondent SOLICITORS: Kinneally Miley Law for appellant McDonald Balanda & Associates for respondent [1] This is a case about an advertising sign for an Aldi supermarket in a shopping centre. The parties agree that it requires the Court to make a judgment about questions of architectural and design merit, and aesthetics, in the context of provisions of the local authority’s planning scheme. -- 1 of 4 -- 2 [2] Council refused CPT’s application for a development permit for Operational Works to construct the sign, technically called an Advertising Device1, on the outside and above the awning of a shopping centre at Nerang, on the western side of the Pacific Motorway and called ‘Centro’. The major tenant is a Coles full-line supermarket and there are also over 40 smaller tenancies including the Aldi supermarket2. [3] The sign would be constructed between two existing poles which already project above the awning/roof line on the northern face of the shopping centre, slightly to the west of its main entrance. Documents lodged with the development application show it would be over seven metres above ground level, and about 6 m² in size. Its design is, like Aldi signs generally, fairly described as simple and undemonstrative, and relatively muted. [4] An inspection of the shopping centre and the area showed it is already heavily infested with advertising signs, at many levels. The proposed sign would not really be visible from the nearby motorway or, intrusive for those using the road past this shopping centre and nearby associated ‘strip’ retail development. [5] Two senior and experienced architects gave evidence about the visual impact of the proposed sign. It was said, for the appellant, that the sign would not be discordant with existing signage and would form an acceptable part of the retail architecture, with minimal impacts. Against that, the architect called for Council thought that the location of the sign, higher than most around it and effectively up above the roofline, meant it was inconsistent with other signage in the shopping complex and the area. Its presence above the roofline was, ultimately, Council’s overriding objection. (In a course of submissions Council signified that it would not oppose the sign if it was located below, and not above, the awning outside the building which contains the supermarket.) [6] During the evidence of the architects it became apparent they agreed a sign in this vicinity, signifying the location and presence of the Aldi store, was an appropriate and even desirable thing for what they called ‘way-finding purposes’. They could not agree, however, about its position above or below the awning (and the architect called by Council thought any the sign should be perpendicular to, and not parallel with, the outside wall of the building housing the supermarket). [7] As I understood their disagreement it came down to a relatively fine point of aesthetics and design – whether the location the appellant sought would offend the design elements of the building behind it. It was very much to their credit, I thought, that such a refined argument should arise in the context of a typical suburban shopping centre with no obviously interesting or distinguishing features. That is not said with any note of criticism: plainly, these very senior and experienced architects properly continue to take questions of aesthetics and visual amenity, even in what might be thought to be a relatively minor context, very seriously. [8] An inspection of the area at the commencement of the hearing left the question finely balanced. In general the signage used by Aldi is not of an inherently intrusive design and for that reason has less apparent, immediate impact than some others – 1 An application to licence that Device was also applied for. 2 The land is described as Lot 7 on RP 853668. -- 2 of 4 -- 3 e.g., I thought, in contrast with those for Coles, or Woolworth’s supermarkets or other nearby retail premises. On the other hand the sign would be quite high; but, there are already other signs on the rooftops – one for the Coles supermarket – and another on a building occupied by a major retail liquor outlet. (I was told both these signs are now quite old, and would not conform with Council’s current scheme and its policies for signs.) [9] The sign would be located towards the rear of the premises and face north, rather than towards the nearby service road, motorway, or the larger parts of the associated carpark. Its design, location, and position were all factors which, then, will tend to reduce impacts. Ultimately, for reasons associated with these elements, I am persuaded the sign would in fact have little or no visual impact. [10] Senior and experienced town planning experts retained, again, by each party agreed that assessment of the proposal involves, essentially, matters of visual impact; and, also agreed about those parts of the Planning Scheme (Our Living City – Gold Coast Planning Scheme 2003) which would apply. These are, essentially, the Nerang Local Area Plan (LAP); the Specific Development Advertising Devices Code; Local Law No. 7 (Control of Advertising); and, Local Law Policy No. 7 (Control of Advertising). [11] The Nerang LAP expresses a general desire that Nerang remain vibrant, attractive and prosperous, with a viable Town Centre. The shopping centre is located in the Gilston Road/Station Street sub-precinct of the Nerang Town Centre – Southeast. In that precinct, advertising devices which are not internally illuminated are generally self-assessable but this one is, apparently, code assessable and the relevant codes are the Nerang Local Area Plan Place Code and the Specific Development Advertising Devices Code. [12] Sub-precinct shopping centres are required to include a built form which presents ‘… a visually attractive appearance when viewed from adjacent land and Gilston Road’. Performance Criteria 13, 25 and 31 of the Nerang LAP Place Code were identified by Council as being relevant, but the town planners agreed only the last two really touch the matter. PC25 requires that signage be ‘… complementary to the design and style of the buildings of the site … and to signs and development on adjoining sites’ and that it ‘complement the character of the Nerang Town Centre and environs’. PC31 provides that the proposed use must not detract from the amenity of the local area having regard to various matters including ‘signage’ and ‘visual amenity’. [13] The Specific Development Advertising Devices Code (SDAD Code) seeks to ensure that the built form of the City is not compromised and that all signage is well presented, aesthetically pleasing, and complementary to the character and built form. The Code promotes a variety of outcomes including signage which ‘… complements the local streetscape of its locality and presents a visually attractive appearance to public areas’. [14] The Performance Criteria of the SDAD Code of relevance were identified by the planners as PC2 and PC3. PC2 requires that advertising signs fixed to buildings be appropriately located, scaled and designed to enhance the appearance of the building. PC3 says that signs located above an awning be designed ‘… to minimise visual clutter, complement the design of the building on which they are situated, -- 3 of 4 -- 4 clearly identify the business to which they relate, and present an attractive outlook to all public areas’. [15] In its reasons for refusal Council also mentioned PC33 of this Code which requires that advertising devices be designed and located in a way which minimises ‘… the effect of the device on the built environment or the landscape, with particular thought to its effect on any objects of scenic, historic, architectural, scientific or cultural interest’. [16] Local Law No. 7 (Control of Advertising) and Local Law Policy No. 7 (Control of Advertising) are relevant because an application was made under them for a licence in respect of the sign. They are essentially procedural. But, the first looks to ‘ensure that advertisements and associated structures…complement or, at least, do not unreasonably detract from, desirable characteristics of the natural and built environment in which the advertisements are exhibited’3. The second refers to a desire to ‘…balance the visual appeal and the function of signs with the overall appearance of the City’ while acknowledging ‘… the needs of business4.’ [17] All these statements focus, I accept, on matters of visual impact and the associated questions of aesthetic and design merit, or detriment. Once it is concluded, as I have earlier, that this sign will have little or no visual impact it is but a short step to a finding that it is not in conflict with any parts of this planning scheme. I am also satisfied that, even if it does not comply strictly with any Acceptable Solutions to the Performance Criteria, it does meet the requirements of those criteria. [18] Otherwise, the proposed sign is remote from the frontages to the subject site and faces a carparking area ancillary to the uses on the site. As one of the town planners, Mr Kay, said it is ‘…inwards looking in nature and will be relatively obscure from the frontages of the subject site’5. I also agree with his conclusion that any variations from Acceptable Solutions for the relevant codes are minor, and would not warrant refusal of the application. [19] In summary, I am satisfied the sign will have practical benefit for the purpose accepted by the architects, i.e. as a ‘way-finding’ device and will be consistent with similar nearby advertising devices. I do not believe it will have any deleterious impact upon the visual amenity of the locality: it is consistent with development and existing signs in the locality; it will not form part of the streetscape; and it will not affect, in any measurable way, access to views, sunlight, breezes, or the outlook of persons on adjoining sites. It will not, I am also persuaded, create any nuisance. Nor will it have any impact upon the character of the locality, or the operational safety of roads. [20] The proposed sign is not in conflict with any relevant parts of the planning scheme and there are, for these reasons, no real aesthetic or design concerns arising around it – and, hence, no adverse impact upon visual amenity. The appeal should be allowed. 3 Clause 2 - Objects 4 Clause 2 – Advertising Signs and Their Place in Our City 5 Mr Kay, Exhibit 4, [36] -- 4 of 4 --