In PPH Developments Pty Ltd v Yarra Ranges SC (Red Dot) (corrected) [2022] VCAT 446 the Tribunal considered an application to amend an existing planning permit, including amendments to conditions to allow internally illuminated signage. The original permit included a condition that no business identification signage be internally illuminated. The site was affected by the Industrial 3 Zone and a Design and Development Overlay.
Clause 52.05 of Victoria’s Planning Provisions sets out provisions controlling signage, with four main categories of sign, numbered 1 to 4. Within Clause 52.05 each category sets out which signs require a planning permit, which signs do not and which signs are prohibited (no permit can be granted).
In PPH Developments the relevant zone provisions set signage at Category 2 whereas the Design and Development Overlay, affecting the land, included a provision which purportedly set signage at Category 4.
Category 2 signage provisions in Clause 52.05 allow internally illuminated signage up to 1.5m2 in area without a planning permit, provided the sign is more than 30m from a residential zone or pedestrian or traffic lights. Larger signs require a planning permit and are discretionary. Under the Category 4 signage provisions in Clause 52.05, internally illuminate signage is prohibited and a permit cannot be granted for such a sign.
The Tribunal found that the provision of the Design and Development Overlay which categorised signage as Category 4 was outside of the legal ambit of the DDO.
The categorisation of signage in the zone and overlay controls are not considered to be “requirements”, but rather take the reader to the category controls in the signage provisions at Clause 52.05. The zone and overlay provisions are therefore not the permit trigger for signage, but they refer proposals to the signage provisions in Clause 52.05, which state:
The zone provisions specify which category of sign control applies to the zone.
The signage provisions in Clause 52.05 do not refer to Design and Development Overlays, or any other provisions in the planning scheme to determine the appropriate category of signage, other than the relevant Zone.
The Tribunal’s decision in this instance finds that the reference in the Design and Development Overlay to Category 4 is beyond the scope of the overlay ie. it should not be there. This decision is contrary to the previous decision Sparks v Nillumbik SC [2020] VCAT 305 in which the Tribunal found that, where a Design and Development Overlay set a more restrictive signage category than the underlying zone, that the more restrictive of the categories should apply. This more recent decision in PPH Developments Pty Ltd v Yarra Ranges SC finds that it is only the zone controls which can determine the relevant category of sign.
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