In Yum International v Stonnington CC [2011] VCAT 1596, the Tribunal was asked to by a permit applicant to review permit conditions imposed by Stonnington City Council that would have required the removal of an existing “bucket” sign on a KFC store on Chapel Street, South Yarra.
In the proceeding before the Tribunal, Council accepted that the “bucket” sign was lawfully displayed as a consequence of planning permits granted in 1973 and 1999. However when considering an application for “refurbishment of existing signage” Council had imposed a condition requiring the removal of the “bucket” sign. Council submitted to the Tribunal that the continuing presence of the “bucket” sign was not acceptable having regard to the context of the site and the Planning Scheme.
In its reasons for decision the Tribunal states:
In determining this application, Council’s discretion was confined to whether the replacement advertisement of the bucket sign is acceptable, not to whether the display of that sign as a whole is acceptable. In my view, Council has gone beyond the discretion afforded to it by the Planning Scheme and has used this application to achieve an outcome that is not open to it. (my emphasis)
This case confirms the principle that permit conditions cannot exceed the ambit of the discretion created by a Planning Scheme. In this case Council exceeded its discretion.
